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1 1 1 1 12 22 24 4 (2008) 20 ELM : ENVIRONMENTAL RIGHTS – CLIMATE CHANGE, CONSERVATION AND THE ECJ – SANDS
of the Aarhus Convention is being tested right now in a as long ago as 1989, based on the notion that there is
case brought to the European courts by WWF, concerning something qualitatively different about the nature of legal
the allocation of quotas for cod fishing in the North Sea. interests in the protection of the environment. No person
The great majority of scientists who have knowledge on can claim a traditional proprietary interest in the cod of
the subject have advised that cod fishing in the North the North Sea. A change in approach requires a change
Sea has to be halted totally in order to protect the stock of consciousness in terms of the nature of rights and the
and allow it time to recover. In effect, that would mean a nature of the consequences to the environment for the
fishing quota of zero. There should be no fishing of cod implementation of rights. A court has to interpret the rules
at all – last year, this year, next year, probably for several with a different mindset.
years to come – in order to allow the species to recover. Speaking personally, I must confess that I found the
In the face of such advice what does the European response of the Community institutions to the written
Council do? It ignores the scientific advice and, taking pleadings of WWF to have been most unsatisfactory. The
account of the political realities in the annual deal-making European Council wrote on 30 July 2007:
between all the Member States, decides to fix a quota
which will allow continued fishing of cod in amounts The WWF has no interest to act. It is merely an
significantly above zero. This flies in the face of the association which represents collective, general and
precautionary approach that Community law requires to diffuse interests. It has no specific and personal
be adopted to protect the cod. interest and to accept its interest will open the door
For the reasons referred to by Professor Stone, no to the acceptance of the so-called class action or actio
EU Member State will challenge that decision. They have popularis. Again the Council, supported by the
engaged in weeks of lengthy negotiations, in which all of Commission, argues that there is no individual concern
them are involved in the decision-making process. They and there is no direct concern.
stay up night after night, and finally they broker a political
deal which is connected to other deals in relation to other Today we received the Order of the Court of First Instance
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issues. The new regulation is adopted by the Council in that case. The application was ruled inadmissible. The
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unanimously. No Member State will challenge the applicant had no standing, because it is not individually
regulation on the grounds that the conservation of cod is concerned by the decision, and the Aarhus Convention
likely to be endangered. Can anyone else do so? does not change the situation (even assuming it to be
The only people who are likely to challenge the applicable) because ‘any entitlements which [WWF] may
Council’s apparent failure to protect stocks of cod in the derive from the Aarhus Convention and [the implementing
North Sea, to call on the Community to give effect to the Regulation] are granted to it as a member of the public’,
strong scientific advice it received, are individuals or and ‘such entitlements cannot therefore be such as to
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associations. Might they have standing to challenge? differentiate the applicant from all other persons …’. An
Addressing that question in the light of the consistent appeal to the ECJ is possible, and may yet be brought.
jurisprudence of the European Court of Justice, the answer The practical reality is that under the approach taken
would be a clear ‘no’. The new development is the Aarhus by the Court of First Instance, no person having a political
Convention, which was in force for the European interest and ability in doing so will actually have a right to
Community when the decision on cod was taken, even if challenge a Community act. This notwithstanding the fact
the implementing regulations were not. WWF went off to that the scientific and technical advice on the merits of
the Court of First Instance (I must declare an interest, as the approach taken by the Community is clear.
I am one of the counsel) to argue that it had standing to This is a deplorable situation. It raises fundamental
challenge the decision, to ensure that there were effective questions about the ability of the Community legal order
traditional remedies available within the European to ensure the protection of the environment in accordance
Community legal order to hold the European Council to with the law. It also raises fundamental concerns about
account. the nature of environmental rights in the Community legal
This may not be the easiest of cases. Some will say order. In circumstances in which so many decisions are
that WWF – like Greenpeace in relation to the climate now being taken at the Community level, rather than at
system or the construction of the two power plants in the the level of the Member States, the lack of access to
Canary Islands – has no legal interest in the protection of effective legal review may be seen as a profound failure
cod, it is just some NGO with no particular relationship for accountability and, ultimately, democracy.
to the cod that is remaining within the North Sea that Which brings me back to the reaction in 1995 when I
would allow it to be said that it has ‘individual concern’. A first received the Greenpeace judgment. It profoundly
more modern approach, having regard to the case law at affected my feelings about the European Community legal
the domestic level in the United Kingdom and in many order. Can we accept a Community legal order which, at a
countries around the world, would build on the arguments time of such severe environmental challenge, precludes
put forward by Christopher Stone, and for which I argued

17 Case T–91/07 WWF-UK Ltd v Council of the European Union
16 Council Regulation (EC) No 41/2007 of 21 December 2007 [2007] supported by Commission of the European Communities (2 June 1998).
OJ L15 p 1. 18 ibid para 82.

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