ACCC/C/2008/32 Summary Of WWFUK’s Oral Presentation 1 WWF Contends

accc/c/2008/32 summary of wwf-uk’s oral presentation 1. wwf contends that the rejection on standing grounds of its “cod

ACCC/C/2008/32
Summary of WWF-UK’s oral presentation
1.
WWF contends that the rejection on standing grounds of its “cod
case” by the CFI, and then by the ECJ, amounted to, or led to,
non-compliance of both Articles 9(2) and 9(3) of the Aarhus
Convention.
The “cod decision” which was challenged by WWF
2.
WWF wishes firstly to emphasise two aspects of the cod decision
and challenge under examination here: its timing and its
substance/nature.
1.
In relation to its timing, the decision in question was taken
by the EU Council on the 21st December 2006. It set a cod
quota for areas of the community waters for the year 2007.
Thus, the time difference between the decision and it coming into
effect was a mere 10 days. Indeed the decision itself was not
published in the European Community’s Official Journal until January
2007, so after in fact the year in question had already started.
2.
In relation to its substance, the decision related simply to
numerical cod quotas (as part of fishing quotas more widely -
TACs) for that single calendar year; and not anything of wider
or longer-term impact.
The significance of those is considered further below.
Article 9(2) of the Convention
==============================
3.
The European Community’s essential argument is that Article 9(2)
does not apply to WWF’s challenge because (so it says) the
decision of 21 December 2006 does not fall within Article 6 of the
Convention [EC paragraph 48].
Introductory point: the proceedings before the CFI
4.
At the outset, it is notable that WWF’s original application to
the CFI specifically argued that WWF should be granted standing
under Article 230 EC Treaty including for reasons arising from the
applicability of Article 6. WWF specifically asserted that the
decision was an Article 6 decision.
5.
However, it is notable that neither the Council nor the
Commission, when responding to that application before the CFI,
chose to challenge that question at the time.
6.
The CFI itself referred to Article 6 being engaged (albeit obiter
dictum). But, as above, the CFI made the point without it having
been contested by the EC Council or the Commission.
What falls within Article 9(2)?
7.
As for how Article 9(2) is engaged here. Article 9(2) catches two
categories of activity:
1.
The first category includes decisions, acts or omissions that
are “subject to the provisions of Article 6”; and
2.
The second category covers activities “where so provided under
national law”, i.e. where (here) the EU has chosen to add to
that list.
8.
The Commission has confirmed that the European Institutions
haven’t chosen to add to the class of 9(2) categories – i.e. under
(2) above.
9.
However, we are still left with activities which are “subject to
the provisions” of Article 6.
10.
As considered further below, WWF submits that those words bring
within the ambit of Article 9(2) those matters which fall directly
within Article 6 as well as those matters falling within Article 7
which Article 7 makes subject to the provisions of Article 6.
Article 6 itself
11.
The EC accepts that matters within Article 6 fall within Article
9(2).
12.
But it contends that the cod decision was not within Article 6 and
thus not “subject to the provisions of Article 6” [EC paragraph
48ff].
13.
That question, in turn, depends on whether the cod decision fell
within Article 6(1)(b).
Article 6(1)(b) - introduction
14.
The EC says that the cod decision was not within Article 6(1)(b).
15.
But its reasoning is important. In particular, in paragraph 138 of
the EC’s response, the EC Commission states that Article 6(1)(b)
should be read alongside Article 6(1)(a) as follows:
“The Commission interprets this provision” (6(1)(b)) “as referring
only to decisions relating to activities of a nature similar to those
covered by 6(1)(a)”
16.
WWF finds no basis for that conclusion.
17.
That is because Articles 6(1)(a) and 6(1)(b) deal with different
things and are framed in different ways. In particular, Article
6(1)(a) is specifically concerned with “decisions on whether to
permit” activities, whereas 6(1)(b) relates to “decisions on
proposed activities”, plainly a much wider class of activity.
18.
As such, WWF does not believe there is any basis to read
constraints or limitations across from 6(1)(a) (which might be
thought to relate to decisions which member states might make) to
6(1)(b), which we say the Community can do just as much as Member
States do.
19.
There is no basis to constrain Article 6(1)(b) for the reasons
relied on by the EC.
Article 6(1)(b) in more detail
20.
Article 6(1)(b) applies to:
“…decisions on proposed activities not listed in Annex I which may
have a significant effect on the environment. To this end, Parties
shall determine whether such a proposed activity is subject to these
provisions…” [underlining added]
21.
Article 6(1)(b) catches a very wide class of decisions, namely
those decisions on proposed activities not listed in Annex I which
may have a significant effect on the environment.
22.
Thus, the class of activities in play is open ended (albeit with
Annex I activities excluded).
23.
The range and type of decision is entirely open.
24.
The limitation is provided (and only provided) by asking whether
the activity “may have a significant effect on the environment”.
25.
That is thus an environmental “screening” decision.
26.
No such screening decision was taken here (because the EC did not
consider that Article 6 was capable of being in play in any
event).
27.
However, the Party is obliged to take the screening decision for
any particular activity:
“To this end the parties shall determine” (emphasis added)
28.
As such, the absence of such a screening decision for any
particular case does not mean that it can properly be excluded
from Article 6(1)(b)1.
29.
And in the present case, it is plain that the cod decision was
capable of having a significant impact on the environment. It must
thus be taken as being within Article 6(1)(b).
Article 6(1)(b) finally
30.
Overall, therefore, we say that the decision here fell within
Article 6(1)(b).
31.
It thus follows that it fell within Article 9(2).
Article 7
32.
However, as mentioned above, in our view that is not the limit of
the ambit of Article 9(2).
33.
In particular, as above, Article 9(2) concerns activities which
are “subject to the provisions of Article 6”.
34.
As such, it is not limited to decisions actually and directly
falling within Article 6. It also catches activities which take
place under Article 7 of the Convention (Public Participation
concerning plans, programmes and policies relating the
environment). That is because Article 7 specifically states that :
“Within this framework, article 6, paragraphs 3, 4 and 8 shall be
applied” [underlining added]
35.
In other words, matters falling within Article 7 are specifically
made “subject to” the provisions of Article 6.
36.
The decision here fell within the ambit of Article 7: what was in
play was the cod “recovery plan”, plainly an Article 7 matter.
37.
Moreover, the EC had decided who should participate in that
Article 7 process (“the public which may participate shall be
identified by the relevant public authority…”) by appointing WWF
to sit on the “RAC” (Regional Advisory Committee).
38.
The decision here thus fell within Article 7 (whether or not it
also, or alternatively, fell within Article 6(1)(b)).
Article 9(2) overall
39.
WWF should thus have been able to exercise the rights under
Article 9(2) either by virtue of the decision under challenge
falling within Article 6(1)(b) and/or Article 7.
40.
The decision of the CFI and the ECJ rejecting the WWF claim on
standing grounds (thus preventing if from exercising Article 9(2)
rights) amounted to a non-compliance with Article 9(2).
Article 9(3) of the Convention
41.
The response from the Community to the complaint of Article 9(3)
failure is very straightforward (see EC paragraph 52):
“Concerning Article 9(3) of the Convention, the Commission would
submit that adequate access to justice is afforded to natural and
legal persons under the EC Treaty by means of Article 234.”
42.
The EC thus says that WWF could, and should, have (1) commenced
proceedings in the English High Court and (2) asked that Court to
make a reference to the ECJ testing the validity of the underlying
Community measure to the CFI and ECJ; and that such a route would
comply with the requirements of Article 9(4).
Article 234 is no answer
43.
Article 234 provides no practicable answer here, as follows.
44.
In simple terms: the process which the EC describes would be most
unlikely to comply with the requirements of Article 9(4) including
as to timeliness, fairness and prohibitive expense.
45.
That is in part for the reasons identified by Client Earth, but
also for the reasons discussed by Advocate General Jacobs in his
Opinion in the UPA case [copy provided]. Paragraph 102 of that
Opinion identifies some of the difficulties associated with this
procedure:
1.
Firstly, the claimant in the domestic court has no right to
decide whether a reference is made.
In fact, it is only the highest court in the Member State which is
required to make a reference, all others have the power to do so but
are not required to do so.
That factor potentially extends the process in the domestic regime
both in terms of time and cost, where WWF in this case may well have
needed to go beyond simply the High Court, through the higher courts
domestically.
2.
Secondly, even when making such a reference is mandatory, it is
the domestic court which frames the questions which go to the
European Court.
We note with interest that the EC in its response to this complaint
(paragraph 66) says that the claimants can frame the questions.
However in the English court (which is the relevant court in WWF’s
case), the English procedural rules [copy provided] make it absolutely
clear that it is the court, not the claimant, in the English
proceedings which frames the question.
3.
Thirdly, it is only possible to bring such a challenge where
there is a domestic implementing measure.
But in this instance, EC Regulation 21/2006 allocated cod quotas to a
number of countries, so plainly - even on the logic of the Community’s
answer on this point - only in those countries in which there was a
cod allocation would NGOs have been able to bring a complaint in this
way. An NGO in a Member State which did not have a cod allocation, so
therefore no implementation domestically, would simply not have been
able to bring a challenge domestically.
4.
Fourthly, in terms of the timing (and thus timeliness), the
decision at the Community level was taken on the 21 December
2006 (setting the TAC) for a year which started ten days later.
Challenging the domestic implementation (“Fixed Quota Allocations” in
England and Wales) would have added considerable time (particularly in
the context of a decision which came into effect so quickly and lasted
for such a relatively short time).
Even assuming that WWF had been able to persuade the first instance
domestic court (the High Court), to refer the question, it would have
been many months before the question would be considered by the ECJ
under the Article 234 reference.
The EC suggests that an injunction could have been obtained. But:
a.
WWF would have needed to bring proceedings in both England and
Scotland (two separate jurisdictions) and obtain injunctions
in both;
b.
It is almost inevitable that a cross undertaking in damages
would have been required (see thus the Lappel Bank case). WWF
simply could not have afforded to indemnify the entire UK
fishing industry for its lost income; and
c.
But none of that, of course, would have had no impact on cod
being fished by other countries under their allocations
(TACs), unless parallel proceedings were brought elsewhere.
In any event, in WWF’s case, it is highly likely that a reference
would have happened even within the year in question, by which time
the cod quota would have been fished and in essence the damage would
have been done. Indeed the damage, from WWF’s point of view, started
to be done a mere ten days after the decision in challenge was taken.
5.
The introduction of that additional hurdle - the need to bring
the domestic proceedings first - also introduces, as well as
delay and uncertainty, the potential for further costs. There
would have been, again, considerable issues surrounding the
potential prohibitive cost introduced by that further stage of
requiring WWF in this case to go through that additional
process.
1.
So that is why we say, in overall terms, the Article 234 process
is simply not an answer when it comes to the 9(3) violation.
“Legislative capacity”
47.
Finally, for completeness, we turn to whether 9(3) is not
applicable because of the “legislative capacity” exception within
Article 2(2).
48.
In other words, was the Community organ (here the Council) acting
in a “legislative capacity” and therefore outside the ambit of
Article 9(3) of the Convention.
49.
On this issue, we support the points made by Client Earth in their
response and the examples they give.
50.
We also say, very simply, that this is a question to be determined
not by reference to the domestic classification, but is a matter
of freestanding convention law.
51.
In this case, WWF was challenging a mere allocation of fishing for
a twelve month period. That is not in the character of a
legislative act or a manifestation of a body acting in a
legislative capacity.
52.
It is precisely of the character of an administrative decision,
regardless of how it is classified for European community
purposes.
53.
So that is no answer either.
Article 9(3) overall
54.
Our main point, however, on Article 9(3) is that the 234 reference
procedure is no answer to the implementation of Article 9(3) for
the very practical reasons described above.
Overall
55.
Overall2, for the reasons set out in WWF’s written submission and
those above, we submit that the EC’s decision (by its CFI and then
ECJ) rejecting its challenge to the cod decision on standing
grounds amounted to non-compliance with Articles 9(2) and 9(3).
Carol Hatton/David Wolfe
23 September 2009
1 See also page ?? of the Implementation Guide
2 Please also see our separate written note commenting on the EC’s
“aide mémoire”
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