Greenpeace Ltd, R (on the application of) v The Secretary of State for the Environment & Anor

The Common Fisheries Policy (“CFP”) is a Community system for the conservation of marine biological resources and the management of fisheries and fleets exploiting such resources, which was first established by Council Regulation EEC No 170/83. The most recent reform of the CFP by the EU legislature came about in December 2013, following a period of more than four years’ negotiations. Among the many issues that the reforms have sought to address are the depletion of stocks of particular fish, such as cod, through over-fishing, and the wasteful practice of discarding good fish into the sea.

I adopt, without repeating it here, the clear and helpful exposition of the history of the CFP set out by Cranston J at paragraphs [15]–[26] of his judgment in R (United Kingdom Association of Fish Producer Organisations) v Secretary of State for Environment, Food and Rural Affairs [2013] EWHC 1959 (Admin), referred to hereafter as “the UKAFPO case”.

Until 31 December 2013 the basic Regulation governing the CFP was Council Regulation 2371/2002, (“the 2002 Regulation”). In order to implement the reforms, that Regulation was repealed and replaced with effect from 1 January 2014 by Regulation (EU) No 1380/2013 (“the 2013 Regulation”).

One important aspect of the CFP is the allocation of fishing opportunities, defined in the 2002 Regulation as “a quantified legal entitlement to fish, expressed in terms of catches and/or fishing effort”. The same definition remains in place under Regulation 1224/2009, (“the Control Regulation”) Article 4(32). An entitlement to fish quantified by the weight of permissible catches of relevant stock is more commonly referred to as “quota”, whereas “fishing effort” relates to the amount of time that a vessel is permitted to spend fishing in a particular fishery or fishing zone. Each year, the EU Commission proposes to the Council how fishing opportunities should be divided among the Member States. Each Member State is then responsible for allocating those opportunities to vessels registered at its ports.

This case is concerned with the interpretation and effect of Article 17 of the 2013 Regulation, which is entitled: “Criteria for the allocation of fishing opportunities by Member States”. It provides as follows:

The Claimant (“Greenpeace”) is a well-known campaigning organisation which has as its main object the protection of the natural environment. Greenpeace is independent of governments and businesses, and is widely recognised in the international arena for its environmental expertise.

The Interested Party, the Marine Management Organisation (“MMO”) is an executive non-departmental public body, established and given powers under the Marine and Coastal Access Act 2009 to bring together key marine decision-making powers and delivery mechanisms. Its statutory purpose is to make a contribution to the achievement of sustainable development. The Secretary of State has a statutory power to enter into agreements with the MMO authorising it to perform any of his or her marine functions, and has exercised that power to delegate a number of important responsibilities to the MMO.

The sole issue for determination in this claim is whether, as Greenpeace contends, the Secretary of State erred in law by deciding, on 24 October 2014, that the UK’s existing system of allocation of fishing opportunities complies with the requirement in Article 17 of the 2013 Regulation to use transparent and objective criteria of an environmental, social and economic nature. The decision was taken following what was described by the Department for the Environment, Food and Rural Affairs (“Defra”) as an “informal consultation on proposals for allocating Fixed Quota Allocation units to 10 metre and under-licences in the English fleet”.

For the reasons set out in this judgment, I have had no difficulty in concluding that the decision under challenge in this claim was lawful, and that the system of allocation of fishing opportunities does comply with Article 17, whose provisions are clear and unambiguous.

Before addressing the specific legal arguments, it is necessary to set out sufficient of the factual background to put them into context. The evidence served by the parties to this claim comprises three witness statements from Mr John Sauven, the Executive Director of Greenpeace, and a statement from Mr Griffin Carpenter of the New Economics Foundation, on behalf of Greenpeace; two witness statements from Mr Nigel Gooding, a senior civil servant employed by Defra as Head of Sea Fisheries and Conservation, on behalf of the Secretary of State; and two witness statements from Mr Kevin Williamson, who is the lead statistician in the MMO working within the area of fisheries statistics. Mr Gooding and his predecessor Neil Hornby led the work carried out by the team of civil servants who were responsible for the implementation of the obligations laid upon the UK following the introduction of the 2013 Regulation.

I have also read a witness statement from Mr Stewart Harper, the Managing Director of North Atlantic Fishing Company Ltd (“NAFC”) dated 9 September 2015. Permission to adduce that evidence was granted by Picken J on terms that NAFC bear its own costs. NAFC has not sought leave to intervene in the claim; it wished to put in the evidence in order to address certain aspects of Mr Sauven’s evidence which it regarded as painting an inaccurate or unfair picture. NAFC charters, controls and operates a British registered fishing trawler named the Cornelis Vrolijk Fzn which, according to Mr Sauven, holds a significant percentage of the English fishing quota. Mr Harper explains that although, in rounded up terms, the Cornelis Vrolijk Fzn holds 23% of the English FQA units, that figure represents only 5.53% of the FQA units within the UK fleet as a whole.

All fishing vessels registered at ports within the UK are required to be licensed. Terms and conditions may be imposed on the licence, which, for example, may restrict the activities of the licensed vessel, or prevent it from using fishing gear which is environmentally damaging. Licences are divided into categories which give different levels of permission in terms of what species the vessel may fish for. Only those vessels with a Category A licence may fish for all quota species. It has been some years now since the UK decided that it would no longer grant fresh licences, so fishing vessels registered in English, Welsh, Scottish or Northern Irish ports may only operate by acquiring an existing licence from a vessel which has been scrapped, or which for some other reason no longer trades. The licensing system is kept under review and is adapted to reflect EU legislative requirements and domestic UK policies.

The English fishing fleet is divided between vessels that are over and under 10 metres in length. Many, though not all, of the former are members of fish producer organisations (“POs”). Council Regulation (EU) No 1379/2013 makes specific provision for the recognition of POs and sets out the objectives that they are required to pursue. These include environmental objectives, such as reducing the environmental impact of fishing through measures to improve selectivity of fishing gears. Those vessels which are members of POs are referred to in the industry as “the sector” whilst the over 10m vessels which do not belong to a PO are referred to as “the non-sector”. The vessels under 10m are referred to as the “inshore fleet”; a relatively small number of these are members of POs. This fleet includes newer vessels known as “super under-10s” which have a much greater catching capacity than the traditional small fishing vessels. Some of the inshore vessels use passive gears, others use towed gear.

As at 1 January 2015 the UK inshore fleet numbered 5049 registered vessels (representing 9% of the total tonnage of the UK registered fishing fleet at that date). Of these, only 3256 (64%) had any fishing activity recorded during 2014. The proportion of active and inactive registered 10m and under vessels has been much the same each year since 2007. By contrast, around 90% of the registered over 10m vessels are active each year.

The majority of landings by the inshore fleet are of non-quota stocks, particularly shellfish. In 2014 almost half the active inshore fleet (approximately 48%) did not rely on quota species as their sole or main source of income from fishing; only 14% could be regarded as solely reliant on quota species. On the other hand, only 36% of the 1275 active over 10m vessels did not rely on quota species, and 39% could be regarded as solely reliant on quota species for their income.

Within the UK, as a result of devolution, important tasks in fisheries administration are divided between four administrations or departments: for England, the Secretary of State for Environment, Food and Rural Affairs (“the Secretary of State”); in Scotland, Marine Scotland; in Wales, the Welsh Assembly; and in Northern Ireland, the Department of Agriculture and Rural Development of Northern Ireland (together “the Fisheries Administrations”). There is a Concordat between them, described more fully in Cranston J’s judgment in the UKAFPO case at [55], by which each Administration is allocated shares of the UK’s allocated fish quota, for distribution to their fleets. Those shares are agreed annually. The UK’s allocation method is also kept under constant review. Greenpeace has focused its claim upon the way in which fishing opportunities are allocated in England rather than in Wales, Scotland or Northern Ireland. Therefore no evidence was adduced pertaining to the remaining three Fisheries Administrations.

Mr Gooding and Mr Williamson describe the system for allocation of fishing opportunities as between the four Administrations, and within England, in considerable detail. I have no reason to doubt the accuracy of their evidence.

In broad summary, the UK’s method for allocating fishing quota between the Fisheries Administrations is as follows:

A certain quantity is “top sliced” by way of special allocations to particular groups, mainly vessels of 10m or under, in accordance with the UK Quota Management Regulations as adopted from time to time;

The UK’s remaining quota is then divided into three sub-amounts assigned respectively to the sector, the non-sector, and those of the inshore fleet that are not members of a PO.

Both before and after the introduction of the 2013 Regulation, the division of fishing quota between these three groups has been largely implemented through a system of fixed quota allocation (“FQA”) units assigned to licences in each group. FQA units are capable of being transferred independently of the licence. In the case of the inshore fleet, FQA units are not associated with individual vessel licences but are held as a block by the Fisheries Administrations. Since the FQA units represent a variable level of fish quota year on year, they are of fluctuating value.

Cranston J describes the background to the FQA system, its operation and its effect in paragraphs [27]–[40] of his judgment in the UKAFPO case. As is explained at [28] - [30] of that judgment, after 1 January 1999, FQA units were linked to the average historic catches made by licensed fishing vessels during a fixed reference period, namely, the period from 1994-1996. This was partly to stop the practice of “ghost fishing” where vessel operators pretended to have caught more fish in the previous year than they actually had, in order to maintain the same level of quota as before. This was a serious problem because it gave fisheries managers and scientists a misleading picture of the health of fish stocks, and resulted in the setting of higher permitted catches than would otherwise have been agreed. The use of the fixed reference period to set the number of units also aimed to prevent the practice of overfishing in order to maintain existing quota levels. Although the number of units was calculated by reference to those historic catches, the allocation of FQA units was not frozen in 1999, and remains flexible.

At the point of sub-division between the three groups, there may be an adjustment to amounts allocated to the non-sector and inshore fleet, in order to give effect to well-established “underpinning” arrangements. Each Fisheries Administration is then apportioned an amount of tonnes for each stock that is a sum of the three amounts. From that point onwards, each Fisheries Administration is responsible for allocating the amounts of quota provided to it. Each of the four Fisheries Administrations publishes and operates its own set of Quota Management Rules in that regard. The 2015 Quota Management Rules for the UK and for England were sent to the European Commission on 16 April 2015. No evidence was adduced that the Commission has said anything critical about them.

Within the spread of fish quotas allotted to the UK, and then allocated to licensed vessels predominantly by means of FQA units, there will be a range in the nature of the stocks involved and the particular fishing areas where they are to be found. Some quota stocks relate to specific sea areas that are local to the UK coast, for example cod and sole in the Eastern end of the English Channel, whilst other quota stocks may relate to much larger sea areas, such as the North Sea. Thus the larger trawlers which fish pelagic species (the shoaling fish such as herring and mackerel whose habitat is in the middle of the sea) will be allocated most of the FQA units for those species; but they will not be competing with most of the inshore fleet, as comparatively few of the smaller vessels will be landing those species as part of their catch. A significant proportion of the UK quotas allocated for 2015 will relate to fish that is likely to be caught outside the normal sphere of operation of the vessels in the inshore fleet.

The MMO is responsible for licensing fishing vessels which are registered to English ports, and monitors the uptake of quota to ensure that the UK does not exceed the quota allocated to it. The MMO also acts as a regulator in terms of enforcing EU and national legislation with regard to the control of fishing activity as it applies to the English fleet, and sea areas that fall under the MMO’s jurisdiction.

Responsibility for management of fishing activity for the English fleet is divided between Defra and the MMO. Defra makes policy decisions and promotes legislation on the regime; the MMO bears the delegated responsibility for the implementation of fisheries management measures as they relate to the English fishing fleet. The MMO often acts as a consultant to Defra as to the practicalities of proposed changes to policy, and will provide advice accordingly. It also has the practical responsibility for the implementation of any policy changes within the remit set by Defra.

Quota Management Rules issued jointly by Defra and the MMO provide for the quota for the English sector to be allocated in accordance with the obligations of the UK under Article 17 of the 2013 Regulation. The quota will in general be allocated to each PO as a total amount, in proportion to the number of FQA units held for the stock on over 10m licences belonging to its members and on English “dummy licences” held by the PO on 1 January of the quota management year. The PO will then distribute the quota to its members in accordance with its published rules of membership and the objectives set out in Regulation 1379/2013.

Fisheries management forms a significant part of the MMO’s activities. Its responsibilities include the management and maintenance of the quota available to the English non-sector and inshore fleet who are not members of a PO, which is held centrally by the MMO. The quota is normally managed by the MMO on the basis of monthly and periodic catch limits, as well as relevant industry interests.

The quota allocation provisions in the English Quota Management Regulations are subject to such departures as may be necessary from time to time, any special allocations, and the allocation of quota to stop overfishing in certain areas, or to meet policy objectives. They are also subject to, or supplemented by, a series of other measures which include:

The effort regimes (see below);

Re-alignments and re-allocations of unused quota;

A leasing scheme operated by the MMO under which English vessels licensed to fish against the allocations made to either the inshore fleet or non-sector pools may lease further quota from POs;

The Catch Quota Management System (“CQMS”), a voluntary scheme whereby additional quota and/or effort is allocated to fishermen who avoid discards in various specified fisheries;

Monthly catch limits and selective closure of fisheries, enforced via vessel licence conditions, to manage total catches for the inshore fleet and non-sector;

The economic link, being a set of conditions in vessel licences designed to encourage a greater proportion of the revenue and processing activity associated with fishing to take place in the UK;

Schemes encouraging the inshore fleet to manage its own quota, including a pilot scheme in Ramsgate;

A penalty regime under which overfishing results in reduced allocations of fishing opportunities for the next year. Operators who overfish are penalised by a deprivation of more quota than they actually overfished in the previous year, which may be double the amount, so that there is a real disincentive.

The Concordat also sets out a process by which the UK’s effort allocation is divided between the four Fisheries Administrations. Each of the Administrations is responsible for operating individual effort regimes within its jurisdiction. In England there are three fishing effort regimes under which the MMO manages fishing in particular sea areas, by restricting how many days fishermen can spend fishing in them: the Cod Recovery Zone, the Sole Recovery Zone and the Western Waters regime.

These regimes, described in detail in the evidence of Mr Gooding, together encompass vessels which fish a substantial proportion of the UK’s fishing quota. They are managed in consultation with the industry sectors, and it is Mr Gooding’s evidence that they are “multi-faceted in promoting conservation and sustainable behaviours.” As Mr Gooding explains, the impact of the effort regimes is not confined to the particular species that are the drivers of those regimes. Once a vessel has used up its allotted number of days at sea under one of those regimes, it is unable to fish in that location for any species unless it is able to source additional effort (e.g. by leasing).

The 2002 Regulation provided, by Article 20(3), that:

Both this Court and the CJEU have previously held that under that Article each Member State was given a very wide discretion as to the method of allocation it adopted, subject to the overriding obligation that the discretion be exercised in accordance with EU law: see for example Case C-372/08 Atlantic Dawn v Commission [2009] ECR 1-74, which was followed by Cranston J in the UKAFPO case. The latter case concerned an unsuccessful challenge to the decision by the Secretary of State to change the way in which the fishing quota was allocated among the different groups of English licensed vessels for the years 2012 and 2013, in order to maximise the use of the quota available under the CFP. The nature of the changes is explained in paragraphs [66]-[72] of the judgment. Essentially, fishing quota that was identified as being continuously under-utilised by the POs to which it had been allocated in previous years was taken away from them and transferred to the inshore fleet by means of a permanent realignment of the FQA units.

Cranston J held that each Member State had a discretion under Article 20(3) of the 2002 Regulation as to the allocation method it adopted, provided that the discretion was exercised in accordance with EU law. That meant that the method of allocation had to be transparent, sufficiently certain, non-discriminatory, and proportionate. It could be a system of rules, but as the CJEU made plain in the Atlantic Dawn case, the system could also be flexible and tailored to the circumstances which may arise. Cranston J concluded that any interference with or deprivation of the quota previously allocated to the fish producer organisations brought about by the changes to the system of allocation was in accordance with the law and justified.

During the process leading to the December 2013 reform of the CFP, in which it is fair to say the UK Government also played a prominent role in lobbying for substantial and significant reforms, Greenpeace submitted a detailed contribution to the Commission consultation. It advocated a fair and sustainable reform that would end overfishing, eliminate excess fishing capacity, shift fishing practices towards low-impact fishing, and ultimately allow for the recovery of fish stocks. To those ends, Greenpeace promoted preferential access to fishing opportunities for fishermen practising low-impact fishing, contending that small-scale fishing operations, on balance, cause less environmental damage and provide greater socio-economic benefits for coastal communities.

In his first witness statement Mr Sauven states that Greenpeace regarded the successful campaign for reform of the CFP as “an important and historic victory”. Mr Sauven also says that Greenpeace believes that, “if properly implemented”, the new CFP offers the opportunity to create inshore waters that are cleaner, safer, more productive and biologically diverse and for creating local fishing communities that are stable, sustainable and economically viable.

What Greenpeace means by “properly implemented” is that the current method of quota allocation should be altered by giving preferential access to fishermen practising low-impact fishing. On the face of Mr Sauven’s evidence this appeared to involve redistributing quota from the over 10 metre vessels to the inshore fleet in a far more substantial fashion than the realignment that was the subject of the UKAFPO case. Greenpeace has been lobbying the Secretary of State to address what it perceives to be the injustice that the inshore fleet, which it says provides the majority of jobs in the UK fishing industry, receives only 4% of the quotas allocated to the UK in terms of overall tonnages. Greenpeace has also been working closely with the New Under Ten Fishermen’s Association (“NUTFA”) in campaigning for increases in the amount of quota that is allocated to the inshore fleet.

Although Mr Sauven has accepted in his second witness statement that it is “possible” that some of the smaller vessels in the fleet do not fish in an environmentally friendly manner, and that some of the larger vessels do use environmental fishing gear and techniques, he maintains that small scale fishing operations, on balance, cause less environmental damage and provide greater socio-economic benefits for coastal communities. As Mr Gooding says, and Mr Harper’s witness statement demonstrates, that is a hotly contested and complicated issue. Fortunately it is not an issue that I need to resolve. Ms Smith QC made it clear in the course of her submissions that Greenpeace’s case was not that there should be a simple re-allocation of quota from large to small vessels. She stressed that Greenpeace’s concern was that proper consideration should be given to environmental criteria in the allocation of fishing opportunities, and therefore its case was that, on the true interpretation of the 2013 Regulation and Article 17 in particular, preference should be given to those vessels, regardless of size, whose practices caused least environmental damage.

Mr Williamson accepts that the inshore fleet does indeed receive a small proportion of the overall tonnages of quota set for the UK each year. However he explains in his evidence why that statistic is potentially misleading if taken out of context. The inshore fleet, whilst much larger in numbers, is smaller in tonnage. It has a limited capacity for catching and retaining fish. As already indicated, it is much less reliant on fishing for quota species for its source of income than the over 10m fleet; indeed, a significant proportion of the fishing activity for quota species takes place outside the geographical range of the 10m and under vessels. Moreover, the percentage of quota allocated to the inshore fleet will vary depending on the stock involved, so that for some species the inshore fleet receives over 50% of the initial quota allocation for that stock. Thus the picture is by no means as simplistic as Mr Sauven’s evidence might suggest.

Mr Gooding also makes the important point that a significant quantity of the quota allocated under the FQA system must be fished under effort restrictions. Article 17 is concerned with the allocation of “fishing opportunities” which comprise both quota and effort. Mr Gooding explains that the complex intertwining of effort and quota is an integral part of the way that English, UK and EU fisheries are managed to help secure the future of many stocks.

In 2014 the effort restrictions described in paragraphs 23 and 24 above applied to 44% of the active over 10 metre fleet by numbers, tonnage and engine power. Vessels fishing within the effort areas accounted for 23% of the UK quota in 2014, and 95% of the non-pelagic species. Vessels subject to the CQMS scheme accounted for a significant proportion of the activity under the cod recovery regime in the North Sea in 2014. In the UK nearly half the North Sea cod (approximately 44%) is landed by UK vessels under CQMS; for English vessels alone, with the appropriate regulated gears, the percentage is 92%.

An alteration to the method of quota allocation is undoubtedly Greenpeace’s political objective: but in a claim for judicial review the Court is not concerned with the merits of the arguments on which Mr Sauven relies in support of that agenda. Nor is it concerned with the rights and wrongs of the way in which a Minister, a Government department, or a statutory body to whom that department has delegated certain of its responsibilities exercises a discretion, unless it can be shown that the discretion has been exercised unlawfully (in this case, that it contravenes principles of EU law) or that it has been exercised in a manner which is Wednesbury unreasonable, which is not alleged.

Article 2 of the 2013 Regulation sets out the objectives of the reformed CFP in these terms:

Article 6 (1) states that the Union shall adopt conservation measures as set out in Article 7 “for the purpose of achieving the objectives of the CFP in respect of the conservation and sustainable exploitation of marine biological resources as set out in Article 2.” Fishing opportunities are among the types of “conservation measures” referred to in Article 7, presumably because they operate so as to create limits on the amount of fish that can be caught in specific areas over specific periods. Thus Article 7(e) envisages measures being taken to fix and allocate fishing opportunities, whilst Article 7(d) expressly envisages that fishing opportunities may be among the economic and other incentives used to promote fishing methods that are environmentally friendly.

The next series of Articles deal with other types of conservation measures addressed in Article 7. Thus, for example, Articles 14 and 15 respectively concern measures to avoid or minimise unwanted catches, and landing obligations.

Article 16(1) provides that fishing opportunities allocated to Member States shall ensure relative stability of fishing activities of each Member State for each fish stock or fishery. The interests of each Member State shall be taken into account when new fishing opportunities are allocated. Article 16(4) provides that the fishing opportunities allocated to each Member State:

Article 16(6) of the 2013 Regulation is couched in virtually identical terms to its predecessor, Article 20(3) of the 2002 Regulation:

On the face of it, unless a system of transferable fishing concessions has been adopted, Article 16(6) confers the same wide discretion on Member States as did its predecessor. However, that discretion is now qualified by Article 17, whose provisions I have already set out.

The requirement to use transparent and objective criteria is nothing new: it simply spells out the requirement of compliance with the principle of legal certainty, which Cranston J rightly recognized as applicable to the allocation of fishing opportunities under the 2002 Regulation (see the UKAPFO case at [95]-[96]). What is new is the express requirement to use criteria of an environmental, social and economic nature, and the further obligation to “endeavour” to provide incentives to certain types of fishing vessels. The latter obligation is not a matter of direct concern in this claim, although it does have some bearing on the interpretation of Article 17 as a whole, because it is self-evident that the first two sentences of Article 17 cannot be interpreted in a way which elevates an obligation to “endeavour” to provide such incentives to certain vessels, into a compulsion to provide them.

Beyond this, Article 17 does not mandate what the criteria shall be; nor is there any definition of what is meant by criteria of an “environmental, social and economic nature” in the 2013 Regulation. However, Article 17 does give some indication of what is envisaged by giving examples of the sorts of criteria that may be included, one of which is “historic catch levels”. That is the primary basis upon which the FQA units were worked out under the existing system. It necessarily follows that a system of allocation which includes historic catch levels among its criteria is permissible. This is hardly surprising, as on the evidence before me, no fewer than 17 of the EU Member States use historic catch records as the sole or primary basis of quota allocation.

The examples given in Article 17 are just that: the identified criteria may be included, but it would not be unlawful for a Member State to use different criteria of an environmental, social and economic nature. Although at least one criterion of each type must be used, a chosen criterion might fall into more than one of the three categories. Thus, for example, an economic criterion might also further social or environmental objectives.

Whilst Article 17 obliges each Member State to include criteria of an environmental, social and economic nature, on the face of it, it is silent as to the weight to be ascribed to those criteria in the allocation process. It does not stipulate that criteria of an environmental nature are to take precedence over criteria of a social or economic nature (or vice versa). Greenpeace is therefore driven to the submission that priority is afforded to environmental criteria as a matter of necessary implication, on the proper construction of Article 17 in context of the Regulation as a whole and in the light, in particular, of the objective of the CFP set out in Article 2(1).

As a general rule, in the absence of any mandatory legal requirement, which one would normally expect to be spelled out on the face of the Regulation, the weight to be ascribed to any particular factor (or criterion) used in reaching a decision to grant someone a legal right to do something remains quintessentially a matter for the decision maker. The courts will not interfere with the weight ascribed by the decision maker to a particular factor, provided all material considerations have been taken into account, unless he or she has acted irrationally in the Wednesbury sense: see Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, per Lord Keith of Kinkel at 764 H and Lord Hoffman at 780 F-G.

In that case a clear distinction was drawn between the question whether something is a material consideration (which is a matter of law) and the weight which it should be given (which is a matter of judgment for the decision-maker). As Lord Hoffmann pithily put it:

At first sight, therefore, a failure by a Member State to include any criteria of an environmental nature among the transparent and objective criteria it adopts for the allocation of fishing opportunities to licensed fishing vessels would be unlawful, but a failure to afford particular weight to such criteria as have been included, let alone to regard them as the most significant factors in the decision-making process, would not.

Greenpeace contends, however, that on its true (purposive) interpretation Article 17 does oblige the Member States to give what it describes as “material weight” to criteria of an environmental nature when allocating fishing opportunities. It contends that this follows from the introduction of the mandatory requirement to use criteria of an environmental nature in the allocation of such opportunities; from the environmental objectives of the 2013 Regulation spelled out in Article 2, especially Article 2(1), as well as the references in various recitals to the importance of ensuring environmental sustainability; from the intention that the reforms to the CFP should cure the failure of the 2002 Regulation to address environmental objectives; and from the context of Article 17 within the Regulation which, Greenpeace contends, demonstrates that it is intended to be a provision which fulfils an environmental function.

Indeed Greenpeace goes so far as to submit that the 2013 Regulation defines its objectives in “a clear prioritised manner” i.e. that the CFP is to ensure long-term environmental sustainability (as a priority) while using management methods consistent with achieving economic and social objectives.

On behalf of Greenpeace, Ms Smith submitted, and I accept, that Article 17 of the 2013 Regulation cannot be read in isolation, or treated as if it were a piece of domestic legislation. In construing the Regulation, the Court must bear in mind that this is a piece of EU legislation; the Regulation must be given a purposive construction, and the literal meaning of the language used by the draftsman is of secondary importance. Article 17 must be construed in context, and in particular, in the light of other articles of the 2013 Regulation which may assist in ascertaining its meaning and/or purpose. The recitals may be used as aids to construction, and a more liberal approach is taken to using the travaux preparatoires as a means of gleaning what the European legislature intended.

Ms Smith took the Court through the history of the legislative changes leading up to the 2013 Regulation. She submitted that this demonstrated that the primary aim of the changes to the CFP was environmental sustainability, and that the steps taken towards achieving that aim had to be consistent with the achievement of economic and social benefits.

In 2008 the Commission produced a working document identifying the problems with the CFP in its existing form. It stated (quoting from Art 2(1) of the 2002 Regulation) that the objectives of the CFP could be summarised as “to ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions”. Although the policy had progressed towards these objectives since the last reform in 2002, the EU was still far from achieving them fully. The Commission identified the source of the problem as a preference for short-term solutions over long-term improvements. It said that in consequence, the long-term ecological sustainability of fisheries had been undermined to such an extent that the economic and social sustainability of the European fisheries sector was now compromised.

One of the flaws that the Commission identified was that the CFP itself had too many objectives mixing long-term and short-term concerns and social, economic and environmental factors, with no clear order of priority. These objectives partly conflicted with each other, and generated a bias in the decision-making process. So far as longer-term reform options were concerned, the Commission said that the policy must be focused with clear and prioritised objectives. “The long term ecological sustainability of fisheries must be the first priority because the past development of the CFP has demonstrated that healthy fish stocks and healthy marine ecosystems are a sine qua non for an economically and socially healthy fisheries sector. The objectives must be sufficiently specific to enable accountability and monitoring of performance.”

The Commission produced a Green Paper which stated its aim as being “to stimulate a debate on the reform to provide the Commission with feedback and guide its work”. It identified five main structural failings in the existing CFP including a deep rooted problem of fleet overcapacity, and imprecise policy objectives. It said that use of market instruments, such as transferable rights to fishing, may be a more efficient and less expensive way to reduce overcapacity than the various scrapping schemes and other schemes that had been tried previously. Such systems could be complemented with proper safeguard clauses to avoid excessive concentration of ownership or negative effects on smaller-scale fisheries and coastal communities.

So far as focusing the policy objectives was concerned, the Commission stated that there was no conflict between ecological, economic and social objectives in the long term, but that they can and do clash in the short term. “It is therefore crucial that any compromises made to cushion the immediate economic and social effects of reductions in fishing opportunities remain compatible with long term ecological sustainability…… Ecological sustainability is therefore a basic premise for the economic and social future of European fisheries.”

The European Parliament responded with a resolution of 25 February 2010 which welcomed the Commission’s initiative of submitting the Green Paper. It stated that the Parliament considered that the current reform was crucial for the future of the European fishing industry, and agreed with the view expressed in the Green Paper that economic and social sustainability require productive fish stocks and functioning marine ecosystems, making ecological sustainability a basic premise for the economic and social future of European fisheries. The resolution welcomed the Commission’s analysis of the five structural failings in the existing policy, and then, at paragraph 7, it reiterated that “the main objective of the CFP should be to guarantee the future of both fisheries resources and fishermen by ensuring the recovery of fish populations and restoring the economic viability of the sector.”

On 6 February 2013 the European Parliament had its first reading of the Commission’s proposed draft of the new base regulation. The Parliament’s comments appear in italics on the draft. Among other matters, the Commission had proposed at (29) that a compulsory system of transferable fishing concessions for the majority of managed stocks under the CFP should be implemented no later than 31 December 2013 for all vessels of over 12 metres’ length and all other vessels fishing with towed gears. However, the European Parliament deleted that proposal and substituted two new proposals:

The draft Article 16(a) was in these terms:

The draft Regulation would have passed through the Council stage before reaching its final form; unfortunately there is no evidence relating to what happened in that period. What various Member States said in commenting on the draft remains unknown. Obviously there would have been some political compromise after the Member States had provided their input, which presumably led to the different wording of what became Article 17.

In the final version of Article 17, economic criteria have been specifically introduced, and placed on an equal footing with environmental and social criteria; consistently with that, historic catch levels have been put on the same footing as the other exemplar criteria, rather than being consigned to the secondary status that appears in the original draft. The compulsion to provide incentives to certain types of vessels in the allocation of fishing opportunities has also been watered down to an obligation to “endeavour” to do so. If anything, those changes seem to me to negate an intention to prioritise, or give more weight to, environmental criteria.

Ms Smith submitted that Article 16 is purely concerned with the choice by Member States of the methodology for allocation of fishing opportunities – e.g. whether or not to use a system of transferable fishing rights, or some other system. Article 17 is concerned with how, in practice, that method is to be implemented, i.e. to whom the rights are to be distributed. Article 2, as a whole, informs how it is to be interpreted, because that sets out the overriding purpose and objective of the CFP. That purpose, as the Commission and European Parliament had repeatedly stated, was the achievement of long-term ecological sustainability. It followed as a matter of necessary implication, therefore, that environmental criteria must be afforded greater weight than the others.

In support of those submissions Ms Smith referred in particular to recitals 4, 11, and 33 of the 2013 Regulation, and to Article 2(1) which she submitted re-prioritised the objectives of the CFP so as to put ecological sustainability ahead of all the others. This priority, she submitted, was echoed in the remaining provisions of Article 2 and in Article 7, which refers to different types of conservation measures including incentives of an economic nature, such as fishing opportunities, to promote fishing methods that contribute to more selective fishing, the avoidance and reduction of unwanted catches, and fishing in line with low impact on the marine environment and fishery resources. Article 17 had to be interpreted in such a way as to achieve those goals. This meant that “material weight” or alternatively, greater weight, had to be given to criteria of an environmental nature when allocating fishing opportunities among different licence holders or vessel owners.

When I asked Ms Smith what the yardstick was by which to evaluate whether a Member State was complying with its obligations in the weighting of the criteria used to allocate fishing opportunities, i.e. where, on Greenpeace’s case, the line was to be drawn between a situation where “material weight” was given to environmental criteria and where it was not, she was unable to provide a response, save to suggest that the CJEU might be approached to provide guidance. However, she submitted that on any view the approach adopted by the UK fell below the line because a system that allocates most quota (on Greenpeace’s case, in the order of 98%) by reference to the FQA system, cannot conform to the requirements of Article 17.

This seemed to me to demonstrate an inherent weakness in Greenpeace’s argument. The Member States have to be able to interpret the Regulation and its requirements uniformly. A system which requires priority to be given to a particular matter may be relatively easy for a Member State to understand and at least try to implement, but a requirement that “material weight” or “greater weight” be given to it is so vague that it is a recipe for disharmony. Given that one of the aims of the reforms was to produce clearer and more certain objectives, it seems highly unlikely that the legislature would have deliberately left matters so vague. If it had been intended that environmental considerations should trump all others, it would have been very easy to have said so.

So far as the last sentence of Article 17 is concerned, Ms Smith submitted that this imposed an additional obligation, over and above the mandatory obligation on Member States in allocating fishing opportunities in the first instance to favour vessels which practise environmentally friendly fishing, to endeavour to provide extra incentives to such vessels. However, that is not what it says, and that is not consistent with the way in which that part of the Article evolved. The natural reading, even of the original draft Article 16(a), is that the incentives are envisaged to be part and parcel of the allocation process – they are to be created “within the fishing opportunities assigned to [the Member States]”.

Mr Segan, on behalf of the Secretary of State, submitted that on a fair reading of the Regulation as a whole it does not create a clear priority in favour of environmental factors, let alone require particular weight to be given to them, as Greenpeace contends. Recital 4, on its natural reading, treats long-term environmental, economic and social sustainability as equally desirable and mutually supportive objectives, and indeed it goes on to refer to mainly economic factors. That approach is echoed in Article 2. Whilst some recitals, such as Recital 11, refer to environmental matters, others, such as Recital 12, refer to economic and social matters such as food production and job creation, and Recital 17 specifically refers to the CFP being interlinked with other EU policies. It is for the individual Member States to carry out the difficult balancing exercise between the various factors.

Mr Segan pointed out that Recital 29 to the 2013 Regulation specifically states that Member States should “consider facilitating the pooling by vessel owners of individual quotas, for example at the level of producer organisations or groups of vessel owners”, which meant that Ms Smith’s suggestion at one point that the use of POs to distribute quota is objectionable on grounds that it lacks transparency cannot be correct. The same Recital stresses the importance for Member States to distribute quotas between vessels in a mix that reflects as far as possible the expected composition of species in the fisheries – this, he submitted, the UK system plainly did. Recital 33 simply reflects the language of Article 17.

So far as Article 2 is concerned, Mr Segan submitted that whilst nobody would disagree that long term sustainability is the key objective of the CFP, Article 2(1) does not say that environmental considerations are to have priority over all others in striving to achieve that key objective, and that is not its natural reading. The obligation of Member States remains an obligation to achieve each of the stated objectives in Article 2(1), which are mutually consistent, and Article 2(5) sets out the different means of implementation of each of these objectives, which overlap to some extent. Thus, for example, economic objectives are interspersed with ecological objectives in Article 2(5)(d) and (e), social and economic objectives are intertwined in Article 2(5)(f) and (i). Article 2(5)(d) is consistent with the use of an FQA system.

Mr Segan did not accept the basic factual premise of Greenpeace’s argument that the FQA system lacked environmental content, but he contended that even if it did, it could not be viewed in isolation. It was just one element in a complex scheme which plainly included environmental criteria as well as social and economic criteria. It was only by “salami slicing” the UK’s allocation method and considering each constituent element individually without considering their interaction and the system as a whole, that Greenpeace arrived at the erroneous conclusion that no material weight is given to environmental criteria. In reality, the claim was a challenge to the judgment of the Secretary of State as to what weight should be accorded to which of the different factors in the overall allocation methodologies for fishing opportunities.

Mr Segan submitted that Greenpeace’s focus on the FQA units failed to engage with how the allocation system works as a whole. In practical terms, as the evidence of Mr Gooding and Mr Williamson demonstrates, the fishing effort regimes significantly impact on how the vessels with FQA unit allocations actually fish. Other parts of the allocation system, such as the top-slicing, or leasing schemes, or re-alignment of unused quota or reallocations arising from the discard ban, are important interventions in delivering environmental, as well as social and economic policy goals. They cannot be regarded as merely incidental or played down in the manner that Greenpeace sought to do.

In support of that position, on behalf of the MMO, Ms Blackmore pointed out that the whole purpose of an EU-wide cap on the fishing allocation made to each Member State based on the total allowable catches for each species of fish in different geographic areas is an environmental purpose – namely, to create long-term sustainability by the appropriate management of fish stocks in those areas. The fishing quotas are part and parcel of a wider package of environmental measures implemented under the CFP to manage commercial fishing activities. Thus, she submitted, the primary goal of long-term sustainability would already have been addressed by the EU Council in setting the maximum catches and days at sea allocated to each Member State for each particular stock. The Member State then has the responsibility for deciding how best to safeguard against overfishing, unnecessary discards, and ecological damage, whilst at the same time ensuring that the fishing industry is able to remain economically viable and that there is no unduly adverse impact on fishing communities.

Mr Segan and Ms Blackmore both placed reliance on the Commission’s acceptance that a system of transferable fishing concessions would be a desirable means of achieving the objectives of the CFP – in the Regulation they are defined as a revocable user entitlement to a specific part of the fishing opportunities. They submitted that the FQA unit system is analogous to a system using transferable fishing concessions. FQA units can be traded, and are treated as possessions under Article 1 of Protocol 1 to the European Convention on Human Rights (although the Government has a free rein in respect of realignment, as the UKAPFO case established). They create a degree of certainty and stability, which incentivises investment. It would be highly surprising if such a methodology were to be outlawed under the new CFP.

Ms Smith’s response to this was that there was nothing objectionable in principle in deciding to create transferable units as a methodology for allocation of quota; the real objection was that there were no criteria dictating that more of those units would be distributed to operators who used environmentally friendly fishing methods, as she submitted Article 17 mandates. The FQA system does not pay regard to the way in which a vessel currently fishes, or to its environmental impact. Whilst FQAs might in theory incentivise investment, there was no hard evidence that they had done so, and in any event, they did not specifically incentivise investment in environmentally friendly fishing methods.

The main objective of the reform of the CFP was, as the European Parliament put it, to guarantee the future of both fisheries resources and fishermen by ensuring the recovery of fish populations and restoring the economic viability of the sector. The 2013 Regulation has to be viewed as a whole, with that objective in mind.

Recital 4, consistently with the Commission’s Green Paper and the discussion that followed it, makes it clear that long-term environmental, economic and social sustainability are to be treated as mutually consistent and interdependent elements of a single overall objective. It recognizes that without sustainable fish stocks in the long term, there would be no fishing industry. Conversely, if fishermen are unable to earn a living because conservation measures are too restrictive, there would be no fishing industry either.

Consistently with Recital 4, Article 2(1) makes it clear that the objective of long-term environmental sustainability must be achieved in a manner that is consistent with achieving economic, social and employment benefits and contributing to the availability of food supplies. It cannot be achieved at the expense of those other objectives; whilst it is the end goal, the other objectives are not subsidiary to it.

The need to strike a balance between those three factors is illustrated throughout Article 2. Thus, for example, Article 2(5)(d) requires measures to be taken to adjust the fishing capacity of the fleets to levels of fishing opportunities consistent with Article 2(2), with a view to having economically viable fleets without overexploiting marine biological resources. The stated aim is therefore to limit access in terms of quota and effort in a way that strikes an appropriate balance between conservation and economic viability. Whilst Article 7 expressly envisages that fishing opportunities may be used as an incentive to fish in an environmentally responsible manner, it is not couched in mandatory terms.

Greenpeace’s challenge focuses on just one element of the highly complex methodology for the allocation of fishing opportunities at national (UK) and regional (English) level. In my judgment, in coming to a decision about whether the system used in England complies with the requirements of Article 17 the Secretary of State (and her responsible advisers) were obliged to take into account how both quota and effort are allocated. Articles 16 and 17 relate to both types of “fishing opportunities” and it makes no sense to look at quota in isolation if the system of allocation depends both on quota and on fishing effort, as it does in the UK and in England. The amount of time that vessels are allowed to spend at sea plainly restricts the amount of fish they are able to catch, regardless of how much quota they are allocated. The effort regimes do tend to favour those vessels that utilise selective gear and fish in an environmentally friendly fashion. The FQA system is only part of a highly complex allocation system, and even though it is an important feature, it cannot be viewed in isolation in the way that Greenpeace has sought to do.

Where Article 16 deals with the initial fixing and allocation of fishing opportunities by the Commission each year, it expressly refers back to Article 2(2) and the precautionary approach to fisheries management that is referred to there. It also refers to quantifiable targets, time frames and margins established under Articles 9 and 10. Thus ecological considerations are undoubtedly paramount at the stage when the Commission fixes the total allowable catches. However, there is no such cross-referencing to other provisions of the Regulation in Article 16(6) or in Article 17 which deal with the distribution of the annual fishing opportunities by the Member States to whom they have been allocated. That is no doubt in recognition of the fact that the individual Member States have to make complex policy judgments in weighing environmental, social and economic factors and aims in the balance when deciding how to allocate those fishing opportunities among vessels registered in their jurisdictions.

It seems plain that both the Commission and the European Parliament considered that a system of transferable fishing concessions, aimed at larger vessels using towed gears, promotes the key objectives of the restated CFP including the objective of long term ecological sustainability. Indeed it was aimed specifically at tackling the identified problem of fleet overcapacity. Although the Commission sought to impose such a system on all Member States, the European Parliament decided to maintain subsidiarity. That is why, under Article 16(6) Member States such as the UK have been deliberately left free to choose how and to whom they allocate the fishing opportunities which the Commission has already allocated to them by reference to environmental considerations, subject only to the requirements of Article 17. Article 16(6) adopts the same language as its predecessor, Article 20(3) of the 2002 Regulation, whose interpretation by the CJEU is well established. Had the European Parliament intended to fetter that discretion, it is unlikely to have adopted the same language.

The adoption of the FQA system for allocation of quota promotes the same objectives as transferable fishing concessions; it is flexible, and units can be swapped or leased to ensure that quota is maximised. The FQA system cannot fairly be regarded as conflicting with the objective of long-term sustainability set out in Article 2(1). I accept Mr Gooding’s and Mr Williamson’s evidence that criteria of an environmental nature are used in the quota allocation system as well as in the allocation of effort. POs are used for pooling and distributing quota just as is expressly envisaged (and encouraged) in Recital 29 to the Regulation; the MMO fulfils the same function for those who do not belong to a PO. I agree with Mr Segan’s submission that the evidence indicates that in England quota is distributed between vessels in a mix that generally reflects the expected composition of species in the fisheries, which is something that Recital 29 specifically refers to as important.

The purpose of introducing the criteria in what became Article 17 was to encourage responsible fishing. However even in its earlier manifestation, the encouragement was not to be confined to those operators who fish in an environmentally responsible way. Those who provided social benefits were also to be encouraged. Those two groups might, but would not necessarily overlap. Had the EU legislature intended that Member States should give priority in the allocation of quota and/or fishing effort to any particular group it could easily have said so, but even the draft Article 16a went no further than mandating that certain types of fishing operations should be “incentivised”. The nature of the incentives was to be left to the Member State. There was and is no obligation to give those vessels priority over others in terms of the initial allocation of quota or effort. The encouragement may be provided by the allocation of additional quota.

Therefore, I do not accept Greenpeace’s interpretation of the Regulation as placing environmental considerations ahead of all others. There is nothing in Article 2 or elsewhere in the 2013 Regulation, or in the history of Article 17 itself, that compels the interpretation that Greenpeace seeks to place on it. If anything, the history of how Article 17 of the Regulation evolved tends to militate against it. There is nothing in the Regulation that requires any particular weight to be placed on any of the three identified types of criteria in Article 17. That remains a matter of discretion for the decision-maker.

Articles 16(6) and 17 of the 2013 Regulation read together clearly and unambiguously confer a wide discretion on each Member State how to allocate quota and fishing effort among vessels registered within its jurisdiction, provided that in so doing, it adopts transparent and certain criteria of an environmental, social and economic nature. Article 17 specifically allows historic catch levels to be among the criteria adopted. The weight to be given to the various criteria in what is obviously a complex balancing exercise is a matter for each Member State. There is no requirement in the Regulation to give priority or greater weight to criteria of an environmental nature when allocating fishing opportunities of either type.

Whilst there is no legal obligation on Member States to favour fishing operations which adopt environmentally friendly methods in the initial allocation of quota or fishing effort, there is an express obligation to endeavour to incentivise them. As Mr Gooding has explained, the UK has gone further and is actively providing such incentives. The CQMS is one illustration of how additional fishing opportunities are used to provide such incentives to fishermen who fish in an environmentally sustainable manner.

In England, the criteria are transparent and certain; there is a large volume of detailed rules, licence conditions, schemes and policies, including the Concordat and the Quota Management Regulations (for the UK and England) which are published and openly available and which have been notified to the Commission. There is ample evidence that they include environmental criteria as required by Article 17, and that far from paying them lip service, they are afforded proper weight in the allocation process.

In the course of her argument, Ms Smith sought to persuade the Court that this was an appropriate case for the making of a reference to the CJEU. I am firmly of the view that it is not. The meaning of the Regulation is clear, and as a matter of fact the UK Government is compliant with the requirements of Article 17 in the way in which fishing opportunities are allocated in England. No challenge has been brought with respect to the allocation of fishing opportunities by the other three Fisheries Administrations.

For all the above reasons, this claim for judicial review is dismissed.