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

Articles 16(6) and 17 of the Regulation (EU) No 1380/2013 confer a wide discretion on Member States to allocate fishing opportunities. The discretion is subject to the use of transparent and objective criteria of an environmental, social and economic nature.

The Regulation does not require environmental criteria to receive priority or greater weight. The decision-maker may balance the three categories of criteria. The allocation system must be assessed as a whole, including both quota and fishing effort. Historic catch levels may be used as a criterion. Member States must endeavour to incentivise environmentally responsible fishing, but need not give such operations priority in the initial allocation.

Greenpeace sought judicial review of the Secretary of State’s decision of 24 October 2014 that the United Kingdom’s existing system for allocating fishing opportunities complied with Article 17 of the Regulation (EU) No 1380/2013. The system used fixed quota allocation units, together with quota-management rules, effort regimes, licensing conditions and incentive schemes.

The central issue was whether Article 17 required environmental criteria to receive material, greater or overriding weight, and whether the United Kingdom system lawfully included such criteria while allocating fishing opportunities among different categories of vessel.

1. Claim dismissed. The Secretary of State’s decision was lawful. Articles 16(6) and 17 of the Regulation (EU) No 1380/2013 were clear and unambiguous.
2. Article 16(6) preserves a wide discretion for Member States to decide how fishing opportunities allocated to them are distributed among vessels flying their flag. Article 17 qualifies that discretion by requiring transparent and objective criteria of environmental, social and economic nature. Historic catch levels are expressly permissible.
3. The Regulation does not require environmental criteria to take precedence over social or economic criteria, or to receive any specified weight. The weight given to relevant criteria remains a matter for the decision-maker, subject to ordinary public law controls, including irrationality. The distinction between whether a matter is legally material and the weight given to it was explained by Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759.
4. The allocation system had to be assessed as a whole. It was impermissible to isolate the fixed quota allocation system while disregarding the allocation of fishing effort, quota reallocations, leasing arrangements, catch limits, selective closures, licensing conditions and incentive schemes. The system included environmental criteria and gave them proper weight.
5. The final sentence of Article 17 creates an obligation to endeavour to provide incentives for vessels using selective gear or techniques with reduced environmental impact. It does not require such vessels to receive priority in the initial allocation of quota or fishing effort. The Catch Quota Management System was an example of a lawful incentive.
6. The claim was dismissed. No reference to the CJEU was required because the meaning of the Regulation was clear.