CFP Technical Briefing Series: Briefing 7 August CFP reform proposal: prioritising the environmental pillar

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1 CFP Technical Briefing Series: Briefing 7 August 2011 CFP reform proposal: prioritising the environmental pillar

2 Key Points 1. Existing EU law already places an emphasis on a high level of environmental protection in relation to the Common Fisheries Policy (CFP). 2. Environmental considerations are fundamental to the CFP. The social and economic pillars rely on the sustainability of the ecosystem, whereas it is not the case vice-versa. Despite this, in practice, evidence shows that the economic pillar is favoured in relation to fisheries. 3. However, the legal principles of integration, sustainable development and precaution all enable, and even require, that the EU and Member States must prioritise the environmental pillar over the economic pillar. 4. There is case law to confirm this in the context of the Common Agricultural Policy (and others). The CFP is subject to the same title in the EU Treaty as agricultural policy and subject to the same legal principles. Therefore, the proposed new CFP can and should put environmental sustainability first at the heart of the reformed policy. 2

3 1. Introduction 1. The objective of the EU s current Common Fisheries Policy (the CFP) is to ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions As this briefing will show, there are numerous legal requirements in the EU Treaty and the CFP, which give environmental requirements central importance. However, the 2009 Eurostat Report 2 shows clearly that the economic pillar has been favoured over the environmental pillar, especially in relation to fisheries under the CFP. The report uses several indicators to assess the EU s progress on sustainable development. On balance, the findings show that there was an overall positive economic growth (1.8% average GDP per capita growth across the EU 27) 3, whereas when it came to the environmental indicators, conservation of fish stocks came under the category of clearly unfavourable changes This briefing addresses the question of whether or not it is legally permissible for the reformed CFP to prioritise the environmental pillar (ecological sustainability) over the other two pillars (economic and social). References to environmental sustainability/sustainable should be read as to include ecological sustainability. 4. It will be shown that, not only is the environmental pillar fundamental to the CFP but additionally, that it is legally possible, and even required, to prioritise the environmental pillar at Member State and EU level. 2. The principle of sustainable development 5. The concept of ecological, social and economic sustainability arises originally out of the idea of sustainable development rooted in the Brundtland Report (1987). The core of the concept is described as: sustainable development seeks to meet the needs and aspirations of the present without compromising the ability to meet those of the future. 5 Thus intergenerational equity is a core consideration of sustainable development according to the Brundtland Report. Intergenerational equity can only be ensured if the environmental pillar is fundamental. Despite various other declarations emphasising the three-pillar approach, the core consideration introduced by the Brundtland Report has not been challenged The general consensus as to the meaning of ecological sustainability is to protect and restore the Earth s ecological systems for future generations. 7 1 Regulation 2371/2002, article 2(1). 2 Eurostat, sustainable development in the European Union, 2009 monitoring report of the EU sustainability development strategy. Available at 3 Ibid. p Ibid. p Brundtland Report 1987, p40. 6 See for example: The significance of the default, a study in environmental law methodology with emphasis on ecological sustainability and international biodiversity law (2009), Aðalheiður Jóhannsdóttir, p Publication review by Andrea Ross, The principle of sustainability: transforming law and governance. 3

4 7. In their 6th Environmental Action Programme, the EU defined sustainable development as follows: 8 A prudent use of natural resources and the protection of the global eco-system together with economic prosperity and a balanced social development are a condition for sustainable development. 8. Article 3 of the Treaty on the European Union states: The Union...shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment... (emphasis added). The current CFP regulation also introduces an obligation for sustainable development (Article 2(1) see also below). Therefore, the EU has a legal obligation to work for the sustainable development of Europe under the Treaty of European Union (TEU) as well as the current CFP regulation (see below). 9. It is moreover clear that sustainable development, under the Treaty, assumes, and indeed places particular emphasis on, environmental protection. Article 3, rather than simply providing for the consideration of environmental factors, requires a high level of environmental protection. This shows that environmental sustainability is fundamental to EU policy. 10. Other EU institutions also subscribe to the basic position that the environmental pillar is fundamental. The European Environment and Sustainable Development Advisory Council, for example, believes that [s]ustainable development can be achieved only if the EU adopts a new concept of development, involving far-reaching modifications in patterns of both production and consumption. This new concept of development will acknowledge economic needs and social aspirations but accept protection of the environment and natural resources as fundamental. 9 (emphasis added) 11. It has also been argued that since the commencement of the Lisbon Treaty, the three pillar approach (environmental, economic, social) is insufficient to achieve the EU s legal objective to work for sustainable development and that an approach based on true sustainable development must have the environmental pillar at the core of the approach The integration principle 12. In addition to the fundamental importance of environmental sustainability in the context of sustainable development, Article 11 of the TFEU requires the integration of environmental protection requirements into all the activities and policies of the EU. 8 Decision No 1600/2002/EC, recital 6. 9 European Environmental Advisory Councils, Report Greening the Sustainable Development Strategies, p1. 10 EU law and Sustainability in focus: will the Lisbon Treaty Lead to the Sustainable Development of Europe? Frances Aldson, February

5 13. The reference in Article 11 to environmental protection requirements basically refers to the environmental chapter in the Treaty, particularly the environmental policy objectives of Article 191 TFEU, but also secondary environmental law and policy more generally. 14. It should be noted that the integration principle is confirmed as a binding principle of EU law (as established by case law see Greece v Council 11 ) and applies to all EU policies and activities including energy and fisheries. 15. In addition, Article 7 TFEU says that the Union shall ensure consistency between its policies and activities, taking all of its objectives into account and in accordance with the principle of conferral of powers. 16. Therefore, rather than prescribing the equal treatment of the three pillars of sustainable development, Article 7, the integration principle and the duty to ensure a high level of protection of the environment together show that the Treaty itself applies a certain prioritisation of environmental sustainability over economic and social sustainability (as in fact does the CFP itself as explained below). 17. Thus, it is legally possible to prioritise environmental sustainability over economic and social sustainability. This is confirmed by case law of the Court of Justice of the European Union. 18. Case C-428/07 12, for example, is a case under the Common Agricultural Policy (CAP) concerning, among other things, the relationship between agriculture and environmental protection in the CAP. This case is extremely pertinent because EU competence in the CAP and fisheries (i.e., the CFP) are governed by the same title of the EU Treaty. 13 This case is also important because, unlike some of the cases described below, it is the EU s ability to prioritise between the three pillars which is at issue, not just a Member State measure or a Member State s ability to prioritise between the three pillars. 19. At paragraph 56 of Advocate General (AG) Trstenjak s Opinion, the AG states: Through Article 6 EC 14, it is intended above all to ensure that the aims set out in Articles 2 EC, 3 EC and 174(1) EC are achieved. It therefore cannot be ruled out that in certain situations the protection of the environment can take precedence over the other aims of the CAP on the basis of that Treaty provision. (emphasis added) 20. At paragraph 44, the AG states: Whilst the CAP was still regarded as the motor of integration in the 1960s because it led the way in terms of integration, it has to some extent become a burden on the Community as a result of various unfortunate developments. Thus technical advances, intensive production methods and the associated production of surpluses have led to increasing damage to the environment. In view of these new environmental risks, the Community's efforts to reorient and reform the CAP were partly aimed at striking a balance between production and environmental protection. 11 Case C-62/88, at para Case C-428/07, Opinion of Advocate General Trstenjak in R (Mark Horvath v Secretary of State for Environment, Food and Rural Affairs. 13 Art. 38 TFEU ff. 14 Now Article 11, TFEU. 5

6 21. It should be noted that the CFP has developed in the same way as the CAP in that, among other things, technological advances have led to increasing damage to the environment and that accordingly, environmental protection has become increasingly important. 22. The ECJ judgment confirms the AG s position and paragraph 29 of the judgment 15 states: Since requirements relating to environmental protection, one of the essential objectives of the Community, must, according to Article 6 EC, 'be integrated into the definition and implementation of... Community policies and activities', such protection must be regarded as an objective which also forms part of the common agricultural policy. The Community legislature may therefore, on the basis of Articles 36 EC and 37 EC, decide to promote environmental protection (see, by analogy, Case C-440/05 Commission v Council [2007] ECR I9097, paragraph 60). Measures intended to achieve such protection, adopted under a Community act having Articles 36 EC and 37 EC as a legal basis, are therefore not restricted to those pursuing agricultural objectives. (emphasis added) 23. Together, the judgment and AG s opinion show that not only does environmental protection need to be built into the CFP as a matter of law but that it can also take precedence over the other pillars of sustainable development. 24. Case C-440/05 16 strengthens the position above. Paragraph 60 states: Moreover, since requirements relating to environmental protection, which is one of the essential objectives of the Community (see, inter alia, Case C-176/03 Commission v Council, paragraph 41), must, according to Article 6 EC, 'be integrated into the definition and implementation of... Community policies and activities', such protection must be regarded as an objective which also forms part of the common transport policy. The Community legislature may therefore, on the basis of Article 80(2) EC and in the exercise of the powers conferred on it by that provision, decide to promote environmental protection. (emphasis added) 25. Therefore, the integration principle clearly allows the EU the ability, and may even require it, to prioritise between the three pillars where this is necessary to meet environmental objectives. 4. The precautionary principle 26. Both Regulation 2371/2002, establishing the basis of the CFP (Article 2(1)) and the Commission s proposal for CFP reform 17 (Article 2(2)) make the application of the precautionary approach to fisheries management one of the fundamental objectives of the CFP. Article 191(2), TFEU lays down the precautionary principle as a fundamental objective of EU environmental law (which must be integrated into fisheries law according to the integration principle explained above). 15 Case C-428/07, R (Mark Horvath) v Secretary of State for Environment, Food and Rural Affairs. 16 Case C-440/05, Commission v Council. 17 Proposal for a Regulation of the European Parliament and of the Council on the Common Fisheries Policy COM(2011) 425 final. 6

7 27. There is a body of case law demonstrating that where Member States exercise their discretion in applying the precautionary principle, under some circumstances it is justified that the environmental pillar takes priority over the economic pillar. 28. In case T-392/02 18, paragraph 2 states: The precautionary principle constitutes a general principle of Community law requiring the authorities in question, in the particular context of the exercise of the powers conferred on them by the relevant rules, to take appropriate measures to prevent specific potential risks to public health, safety and the environment, by giving precedence to the requirements related to the protection of those interests over economic interests. (emphasis added) 29. In case T-158/03 19, paragraph 3 states: The objectives to be pursued by Directive 91/414 concerning the placing of plant protection products on the market are not the protection of the market or of competition, but the protection of human and animal health and the environment. That objective is consistent with the precautionary principle and reflects the case-law upholding the primacy of the protection of health and the environment over economic interests. The importance of the objective pursued, namely the protection of human health, may justify adverse economic consequences, even those which are substantial, for certain traders. The protection of public health must take precedence over economic considerations. (emphasis added) 30. Case C-320/03 20 concerned national regulation introducing a sectoral ban on motorway driving, with a view to reducing emissions linked to human activities and thus improving air quality. Paragraph 58 states: It is not necessary, at this stage, to establish whether the contested regulation reflects considerations based on the protection of the environment and/or the protection of health; however, it appears that it must, as a rule, be acknowledged that requirements linked to considerations of such a kind prevail over economic considerations. (emphasis added) 31. In case T-74/10 21 it is stated at paragraph 186 [w]here scientific evaluation does not make it possible to determine the existence of a risk with sufficient certainty, whether to have recourse to the precautionary principle depends as a general rule on the level of protection chosen by the competent authority in the exercise of its discretion (on the distinction between scientific advice, on the one hand, and that discretionary assessment of the competent authority, on the other, see the judgment in Case C-405/92 Mondiet [1993] ECR I-6133, paragraph 31, and the Opinion of Advocate General Gulmann in that case, point 28). That choice must, however, comply with the principle that the protection of public health, safety and the environment is to take precedence over economic interests, as well as with the principles of proportionality and non-discrimination. (emphasis added) 18 Case T-392/02, Solvay Pharmaceuticals BV v Council of the European Union. 19 Case T-158/03, Industrias Quimicas Del Valles v Commission. 20 Case C-320/03, Commission v Austria. 21 Artegodan v Commission [2002] ECR-II 4945 (as cited in Aldson p34, supra n10). 7

8 32. These cases demonstrate that, in the context of Member States deciding whether to apply the precautionary principle in the event of scientific uncertainty, environmental interests take precedence over social and economic ones; and, as already mentioned, the application of the precautionary principle is fundamental in fisheries management. 5. Prioritisation of Environmental Protection in the CFP itself 33. Looking at the CFP itself, it is evident that environmental sustainability is already put first in any case, at least in theory, as there is a very strong emphasis on the protection of the environment. Conservation and environmental aspects of fisheries management are listed first, over and above social and economic aspects, for example: a. Both the current CFP regulation and the Commission s CFP proposal list the conservation, management and exploitation (emphasis added) of living aquatic resources/marine biological resources as the first item in both the preamble and scope of the CFP before other aspects. The current CFP regulation lists conservation and limitation of the environmental impact of fishing before other measures in Article 1(2),22 and the Commission s CFP proposal lists the application of the precautionary approach to fisheries management, the meeting of conservation targets for fishing levels, the implementation of an ecosystems based approach to fisheries management, the limitation of impacts on the marine environment and integration of EU environmental requirements as general objectives of the CFP (see Article 2). b. Article 2(1) second paragraph of the current regulation qualifies the three pillars of sustainability further by adding: For this purpose, the Community shall apply the precautionary approach... to provide for their sustainable exploitation... Sustainable exploitation means the exploitation of a stock in such a way that the future exploitation of the stock will not be prejudiced and that it does not have a negative impact on the marine eco-systems (article 3(e)) (emphasis added). Even where environmental sustainability is not mentioned first in the current regulation (for example in Article 2(1) setting out the CFP s objectives), all three pillars are expressly subject to environmental conditions: sustainable exploitation and the precautionary approach. 34. All of this shows the over-riding importance of environmental factors (and environmental sustainability) in the CFP and demonstrates that environmental sustainability does in principle already take priority over economic and social sustainability. 35. It follows that in order to ensure that the social and economic pillars of the CFP are sustainable, fundamental reliance must be placed on the environmental pillar. Without maintaining fish stocks, there will be no fishing industry (i.e. no jobs and social benefits). It is illogical to think that consumption can continue to grow (economic/social growth) where there are limits to resources. Social and economic progress must respect the limits of the 22 See recital 2 and article 1. 8

9 environment. This basic position is acknowledged by the Commission, which states in the CFP Green paper, Ecological sustainability is therefore a basic premise for the economic and social future of European fisheries The approach to ecological sustainability in the Commission s CFP proposal 36. The CFP proposal, as already explained above, does prioritise environmental sustainability in theory, by making sure that the CFP s general objectives are mainly environmental in nature. Where the CFP proposal fails however, is that in listing the specific objectives in Article 3 which are to give effect to those general, mainly environmental, objectives of Article 2, it does not follow up with further more detailed environmental objectives (except in relation to discards). Instead, it lists a series of economic and social objectives that on their own cannot possibly achieve the general objectives in Article 2, despite the fact that this is their stated aim. 37. Clearly, even though environmental sustainability may be given apparent priority in the proposal, this might not follow through into practice, unless additional specific environmental objectives are added to Article 3. These should include the requirement to achieve good environmental status as required by the Marine Strategy Framework Directive, compliance with other EU environmental legislation, introducing a fisheries policy based on catches, not landings, the progressive implementation of an ecosystems based approach through the phased introduction of ecosystem considerations to the setting of fishing opportunities, the closure of areas for marine conservation and fisheries conservation purposes, the increased use of environmental impact, strategic environmental and appropriate assessment procedures, the application of the precautionary approach to the setting of fishing opportunities, and in developing conservation and technical measures. An alternative would be to treat all of the specific objectives as general objectives but with an express prioritisation of the environmental goals. 7. Conclusion 38. An analysis of the legal requirements and legal principles with regard to environmental policy, the principles of sustainable development, integration and precaution show that placing environmental considerations above economic and social considerations is not only possible, but necessary and required in the context of the CFP. Anything less would not allow the effective conservation of fish and the marine environment (and therefore fisheries), which would be illegal. It would be an untenable position to argue that prioritisation between the three pillars is not allowed and that environmental sustainability should not be allowed to come before economic and social sustainability. However, the new CFP needs to deliver these objectives in practice, as well as in principle. 23 Green Paper, Reform of the Common Fisheries Policy COM(2009) 163 Final, p9. 9

10 ClientEarth is a non-profit environmental law organisation based in London, Brussels and Warsaw. We are activist lawyers working at the interface of law, science and policy. Using the power of the law, we develop legal strategies and tools to address major environmental issues. As legal experts working in the public interest, we act to strengthen the work of our partner organisations. Our work covers climate change and energy system transformation, protection of oceans, biodiversity and forests, and environmental justice. ClientEarth is funded by the generous support of philanthropic foundations and engaged individuals and with operational support from the European Commission s Life+ programme. This briefing is part of a CFP technical briefing series covering governance and regionalisation, transferable fishing concessions, the legality of mandatory transferable fishing concessions, eliminating overfishing, ecosystem-based fisheries management, transparency and compliance, prioritising the environmental pillar, integration and ending discards. In addition, summary briefings are also available on these topics. For all of these, please go to For further information please contact Sandy Luk Senior Lawyer t +44 (0) e ClientEarth offices: Brussels 4ème Etage 36 Avenue de Tervueren Bruxelles 1040 Belgium London 274 Richmond Road London E8 3QW UK Warsaw Aleje Ujazdowskie 39/ Warszawa Poland ClientEarth is a company limited by guarantee, registered in England and Wales, company number , registered charity number , registered office 2-6 Cannon Street, London EC4M 6YH, with a registered branch in Belgium, N d entreprise , and with a registered foundation in Poland, Fundacja ClientEarth Poland, KRS , NIP

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