The EU’s roots are showing

Inspectors control the size of the fish (source European Commission)

Daily Telegraph environment correspondent Charles Clover reported last week on the failure of a bid by environmental pressure group WWF to overturn EU fishing policy in the courts. The complaint was that, contrary to its obligations, the Council of Ministers had not taken into account the latest science when setting fishing quotas. (The scientific evidence tends to point to lower quotas than the Council is willing, politically, to set, which will lead to depleted fish stocks that have already been reduced to dangerously low levels.)

The case was rejected by the ECJ because the WWF did not have the legal right to bring the case. The scientific and legal arguments were never tested, because a rather elementary procedural matter got in the way.

The principal business of the ECJ is to adjudicate on disputes between member states, or between member states and the EU. Much better to deal with disputes in the courts rather than in any other way.

If individual interests are also affected by EU decisions, a case can be brought if one has a “direct and individual” interest in it. Companies affected by EU decisions regarding their businesses, or citizens seeking to enforce their human rights, can take advantage of this. That the WWF was told that it could not is down to the original nature of the EU and shows the contrasting philosophies that are still at play.

The intergovernmental analysis of the EU is perfectly content with the idea that access to the ECJ should be limited. It, along with the EU as a whole, is there to look after states’ interests. The federalist analysis of the EU, on the other hand, agrees that states’ interests matter but also wants to defend the interests of citizens too and, crucially, says that these two are not necessarily the same thing. Citizens should be able to resort to law to protect themselves, in the same way that states can.

And the direct and individual interest? Well, the fact of being a citizen or a consumer ought to be sufficient. The philosophical approach represented by federalism tells us that laws and government decisions are taken on behalf of the citizens and not simply on behalf of the governments. The EU treaties are not just the governments’ treaties, but also my treaties, too. The EU should be thought of as a union of states and citizens, and not simply a union of states.

If this becomes established as the underlying philosophy of the EU as a whole, then the WWF gets its day in court, rather than falling at a procedural hurdle. At the moment, the EU is moving in this direction, away from its intergovernmental origins, but the transition is still incomplete.

There has been discussion that the rights of access to the courts should be extended to NGOs, which would solve the WWF’s problem in this instance. I don’t think that would go far enough. It would widen the circle of privilege, so that NGOs are included within it. A proper reform would go further and abolish that notion of privilege altogether. That is what federalism stands for.

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