Carol Hatton, solicitor, WWF UK
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18 December 2013
Did you know that as a citizen of the EU it is almost impossible for you to challenge decisions made by community institutions in the European Court of Justice (ECJ)? This right is available to individuals and environmental organisations challenging decisions in the UK and much of the EU, but not the European Community.
A report by WWF, undertaken by the Institute of European Environmental Policy, makes it clear that the European courts rarely allow individuals or organisations to challenge the legality of decisions affecting the environment. This includes decisions with significant and far-reaching implications under the guise of the common agricultural and fisheries policies.
A case by WWF, which challenged the legality of cod fishing quotas, was recently declared inadmissible by the ECJ because WWF did not show “sufficient interest” in the decision it sought to challenge.
This is despite the fact that WWF is represented on a committee established by the EU to advise the Council of Ministers on the implementation of the setting of fishing quotas. WWF even used this committee as a way to notify the council of its legal obligations to set a zero quota for cod.
Apparently, however, having a statutory role as a stakeholder is not enough to give WWF the right to bring the case to the European courts, which has maintained an inappropriately stringent test for legal standing since 1963. One has to ask whether 40-year-old case law concerning the importation of clementines still provides a rational basis for a test to determine access to the courts.
What is even more worrying is that in 2005 the European Commission ratified the UNECE Aarhus Convention, which aims to set down minimum standards on access to environmental information, public participation and access to justice in environmental issues.
Following this, in 2007, the Commission published a number of studies examining access to environmental justice in 25 EU member states (which ranked the UK among the bottom five on the basis that taking legal action is “prohibitively expensive”). The WWF report used the same criteria for evaluation as the Commission and ranked the European Community at the bottom of the table alongside the UK in terms of its performance on the Aarhus Convention.
So, in true Eurovision style, what does an evaluation of ‘nul points’ actually mean? It means that the community institutions have free rein to ignore the environmental requirements of the Commission treaty and European environmental law because, as Caroline Lucas MEP underlined at the launch of the report in Brussels this month, individuals and organisations simply do not have the power to challenge them.
The Commission has itself recognised the failings of its own management tool - the Common Fisheries Policy. Eighty eight per cent of EU commercial fish stocks are overfished and 30 per cent are outside safe biological limits. The good news is that a reform of the Common Fisheries Policy is underway, but even if we agree a new approach to fisheries, we may be no further forward if concerned environmental organisations cannot ensure it is implemented.
Don’t get me wrong - when it comes to the EU I’m in. But this persistent denial of environmental justice undermines its credibility as a leader in environmental law and human rights in Europe and worldwide. There is no other government in Europe that escapes scrutiny in this way. It is time for the ECJ to look at other member states and start exercising wise judicial discretion by changing its outdated case law on standing for public interest environmental plaintiffs in accordance with the Community’s obligations under the Aarhus Convention.