The EU Common Fisheries Policy in light of the precautionary principle

According to the EU's 2009 green paper on the reform of the CFP, 81% of European fish stocks are overfished despite the fact that the EU has repeatedly committed itself under both international and EU law to maintaining and restoring its fish stocks to levels capable of producing MSY. Here we argue that the EU's repeated enactment of TACs exceeding maximum reproductive potential has violated the precautionary principle and as such constitutes a breach of European and international law. As a policy decision, a precautionary approach to fisheries management requires a continuous examination of scientific evidence. Furthermore, although the EU is endowed with exclusive competence in regard to marine conservation, this competence must be exercised in accordance with the rule of law. Judicial review is an essential component in ensuring the accountability of institutions, however the highly politicized nature of fisheries policy hinders Member States and EU institutions from challenging non-sustainable TACs. Despite efforts to expand stakeholder participation in fisheries policy-making, environmental organizations such as WWF-UK have been denied standing to challenge EU fisheries policy in European courts, leaving potential violations of the precautionary principle unaddressed and denying judicial protection guaranteed under the Aarhus Convention. The ECJ's 2011 decision in BUND v. Bezirksregierung Arnsberg (“Trianel”) may represent a turning point in the Court's interpretation of direct and individual concern in regard to cases instituted by environmental organizations in a precautionary context. Rather than merely developing new policy tools, genuine and comprehensive reform of the CFP also requires an operable legal framework to ensure that violations of the precautionary principle by EU institutions in enacting fisheries policies can be addressed.

► The EU is legally required to take a precautionary approach to fisheries policy.
► The EU has violated the precautionary principle in setting unsustainable TACs.
► This violation can be challenged before the European Court of Justice.
► Application of rules on legal standing must uphold the rule of law.