The High Court refers the case of overfishing brought by the FIE against Ireland to the Court of Justice of the European Union
The High Court has referred judgement in the case of Friends of the Irish Environment CLG and the Minister for Agriculture, Food and the Marine, Ireland and the Attorney General to the Court of Justice of the European Union, where it will be asked to rule on a missed deadline set for sustainably set fish quotas in European waters.
Friends of the Irish Environment (FIE) had taken the case against the Irish State over the alleged failure of EU ministers to meet a legally defined deadline of ending overfishing on all stocks by 2022. FIE was supported by the legal non-governmental organisation (NGO) ClientEarth.
In 2013, as part of the last reform of the CFP, the Council of the European Union and the European Parliament agreed in Article 2(2) of the CFP Regulation to end overfishing by 2015 ‘where possible’ and by 2020 ‘at the latest’.
FIE and ClientEarth claim, “This measure was designed to restore all stocks above healthy levels capable of producing the ‘maximum sustainable yield’ (*MSY) and to implement the ‘precautionary approach to fisheries management’.”
They also claim that over the years, EU ministers have consistently been setting fishing limits for the next year far above what scientists have advised – collectively failing to meet their legal obligation to end overfishing by 2020.
ClientEarth say, “In the 2019 December Council meeting of ministers, almost half of the total allowable catches (TACs) analysed by ClientEarth for the North-East Atlantic were set above scientific advice.
“Two years later, about a third of the TACs recently agreed for 2022 are still unsustainable – even as some species like West of Scotland and Celtic Sea cod continue to teeter on the verge of collapse.”
In his judgement issued on 08 February last, Mr. Justice Barr found that while the court was satisfied that the issues between the parties in relation to the 2020 Regulation and the fisheries management were “moot”, given the fact that time had passed, it was likely to be a “live issue” in respect of other regulations issued by the EU Council in the future.
“Accordingly, it is desirable that a decision be reached on the general legality of such regulations in terms of their compliance with Article 2(2) of the CFP,” he said.
He also said that the case raised issues of “general public importance” for two reasons.
“Firstly, the application raises issues in relation to the conservation of fish stock, which are of fundamental importance to the citizens of the EU and secondly, the issues raised herein have enormous ramifications for the fishing industry in the member states of the EU.”
His judgement states that “Turning to the key issue in this case, the court is satisfied that the provisions of Art. 2(2) are clear. They place a binding obligation on the Council to fix TACs in accordance with the best available scientific advice to achieve MSY for all stock by 2020 at the latest.
“The best scientific advice for 2020, as issued by ICES in 2019, was to the effect that in order to achieve MSY for the three species concerned in the fisheries identified, there should be a zero catch set for that year.
The court is satisfied that Art. 2(2) represents a clear mandatory obligation on the Council when fixing TACs for 2020 and subsequent years. It is not merely an aspirational objective that should be achieved by that date. It is clear that it is a key objective of the CFP, which places a mandatory obligation on the Council from 2020 onwards.”
The Judge went on to find:
“The court is satisfied that interpreting both the CPF and the 2019 Regulation in their ordinary and natural meaning, it is clear that Art. 2(2) of the CFP is more than just an aspirational objective of the CFP. The court is satisfied that there is certainly an argument that it represents a mandatory ne plus ultra, that had to be achieved by 2020 at the latest. It is against that interpretative backdrop that the court has serious doubts about the legality of Council Regulation 2020/123, having regard to the mandatory nature of Art. 2(2) of the CFP.
“In these circumstances, the court is obliged to refer the issue to the CJEU for a determination as to the validity of Council Regulation 2020/123.
“As the court has decided to make a reference to the CJEU, it cannot determine any of the other grounds of challenge raised by the applicant at this stage. In particular, the validity of the fishing management notices issued by the respondent, will depend to a very large extent on the legal validity of the regulation under which they were made.”
ClientEarth fisheries lawyer Arthur Meeus said:
“For the first time in the history of the European Union, the highest European court is being brought in on a case to fight overfishing in the EU.
“This is a major turning point and a wake-up call for EU ministers – it is time for them to comply with their legal obligations and actually consider the catastrophic impact of their decisions on the future of fish and fishers.
“Ending overfishing by 2020 should not have been an empty promise – it was a legally binding deadline agreed on by all EU member states and institutions. Anyone who has contributed breaching it must be held accountable.”
With the support of legal NGO ClientEarth, FIE launched a legal action before the High Court of Ireland, questioning the validity of the regulation that set the total allowable catches for 2020.
Their goal was to get the judge to refer the case to the highest EU court – which they have now achieved. This case targets fishing limits for the year 2020, but a judgment confirming the regulation was indeed illegal would have consequences for all future regulations establishing fishing opportunities.
Friends of the Irish Environment Director Tony Lowes said:
“Years of overfishing have brought many stocks – like the Celtic Sea cod – to the brink. EU Ministers must stop ignoring the science and bring these vulnerable stocks back – it is vital to protect the ocean and ensure the survival of coastal communities across Europe.”
A hearing on this case is expected in a few months.