The High Court has found the sea fisheries watchdog was entitled to insist that the weighing of fish catches in Killybegs, Co Donegal, should take place “on landing” and not after they had been transported to a processing factory.
Ms Justice Siobhán Phelan said a derogation allowing the weighing to take place in the factory did not impact on the power of the Sea Fisheries Authority (SFA) to also require monitored weighing on landing.
The SFA was entitled to require that any quantity of landed fish be weighed in the presence of officials before being transported despite the derogation, she said.
Fish are weighed to ensure compliance with the EU Common Fisheries Policy, but Ireland had a derogation since 2012 which permitted weighing at an authorised premises after the fish was transported from the quayside. The derogation was rescinded in 2021.
In 2019, the SFA announced a change in practice, which the judge said appeared to have been prompted by concerns expressed by the EU Commission about how the derogation was operating.
The judge said these concerns appear to have arisen from irregularities which were detected, some of which had resulted in prosecutions and a conviction before Donegal Circuit Criminal Court. It also prompted an administrative inquiry by the SFA at the request of the Commission, and subsequently an audit by the Commission.
As a result, the SFA announced that a percentage of inspections would be carried out on landing, which would involve weighing the catch at the pier side weighbridge in Killybegs and other designated ports for landings of more than 10 tonnes of fish before transport to the factory.
'Under protest'
In October 2020, the MFV Atlantic Challenge was selected for inspection and boarded by fisheries officers on its arrival at Killybegs, where a pier-side weighing took place “under protest” from the vessel’s master, Noel McDowell, and Killybegs Fishing Enterprises Ltd, which holds the Atlantic Challenge's sea fishing licence.
The factory to which the fish was bound, operated by Killybegs Seafoods Unlimited, a shareholder in Killybegs Fishing Enterprises, also agreed to carry out the weighing under protest.
Fishermen argued that post-transport weighing was the best way to preserve the quality, freshness and value of the fish.
They claimed it minimised damage caused by crushing/bruising or temperature variation because the catch remained in refrigerated water for transport to the factory where de-watering, sorting and weighing would occur.
The SFA argued it was possible to mitigate the effects of “de-watering” in the weighing process to minimise impact on quality, freshness and value when weighing does not take place at a factory premises.
To this end, in December 2019, the SFA says it arranged, at considerable expense, for a water separator, or “hopper”, at Killybegs pier, but the Atlantic Challenge declined its use during the October 2020 inspection.
The figures sent in when the fish was later weighed in the factory showed a differential of some 11-12 per cent between the weight for mackerel recorded from the pier weighbridge and on the flow scales at the factory.
The SFA notified Mr McDowell of the commission of two "suspected offences" relating to the landing declaration.
Challenge
In February 2021, Mr McDowell, Killybegs Fishing Enterprise, Killybegs Seafoods and the fishermen's representative organisation, the Killybegs Fishermen's Organisation Ltd, brought a High Court challenge seeking to quash the "notice to weigh on landing" which had been used to carry out the inspection on October 12th, 2020.
The fishermen/factory applicants argued the Atlantic Challenge was unlawfully selected for monitored weighing on landing as, at that time, weighing ought properly to have occurred at the factory premises under the terms of the derogation.
They also contended that the system of weighing using the State-owned weighbridge at Killybegs Port was not fit for purpose, claiming the factory weighing scales were more accurate and less damaging to the fish.
The SFA opposed the challenge. It argued, among other things, that where the SFA requires weighing on landing, the derogation from the general rules did not apply.
Ms Justice Phelan said the power to require a monitored weighing on landing was not a new power, noting it had co-existed with the derogation, albeit that the SFA did not in practice exercise that power prior to 2020.
The judge also said no infirmity had been established with the selection of the Atlantic Challenge for monitored weighing on landing.
