The Irish High Court has agreed to refer questions to the Court of Justice of the European Union (CJEU) after finding it has “serious doubts” about the legality of a European Council regulation relating to fish stocks.
In a judgment, Mr Justice Anthony Barr said the court was satisfied an article of the Common Fisheries Policy (CFP) provided a “clear mandatory obligation” on the Council when fixing total allowable catches for 2020 and beyond.
The judge said the issues between Friends of the Irish Environment (FIE) and the State respondents in relation to the legality of a 2020 European regulation and corresponding monthly fishing management notices issued domestically are moot, because these have expired and are no longer in force.
Regardless of mootness, the judge ruled the FIE’s application for a reference should be allowed to proceed. This decision was reached having regard to the limited shelflife of the regulation and fisheries notices, which would render them “effectively immune from legal challenge” if the court were to hold the issue moot, he said. The court was satisfied that would not be in the interests of justice.
Further, the judge said the issue raised in this case is likely to be a “live issue” in respect of these regulations going forward.
Total allowable catch
FIE had applied to the High Court seeking a reference to the CJEU regarding the validity of Council Regulation 2020/123, which set for 2020 the fishing opportunities for certain fish stocks applicable in EU waters and for EU vessels in certain non-EU waters.
Each year, pursuant to the CFP, the Council fixes the total allowable catch for each fish species in various areas of ocean. Each year after the catch has been fixed and has been divided up among Member States, the Minister for Agriculture, Food and the Marine issues monthly fisheries management notices divvying up catch allowances for Irish vessels.
FIE submitted that the catch fixed by the Council for 2020 was in breach of the provisions of the Common Fisheries Policy (CFP) and was therefore illegal.
The applicant said an article of the CFP provides that the maximum sustainable yield shall be achieved by 2015, where possible, and on an incremental basis by 2020 at the latest, noted the judge. This was to be interpreted, FIE argued, as setting a “clear mandatory provision” to be achieved by 2020 at the latest. This is to reach the objective of progressively restoring and maintaining populations of fish stock.
'Clear mandatory provision'
For the purpose of its application, FIE selected a representative sample of three fish species from four particular fisheries, the judge said. For each of these, the International Council on the Exploration of the Seas (ICES) had advised there should be a zero catch in 2020 in order to achieve maximum sustainable yield. However, the Council set catch limits of between 67 and 1,279 tonnes for species in the four fisheries.
FIE submitted that in disregarding ICES’s advice - which the court agreed was the best available advice - the Council acted unlawfully and in breach of the CFP.
FIE accepted that national courts do not have the power to declare acts of European institutions to be invalid, and it is on that basis that it sought a reference, said the judge.
Responding, the Minister for Agriculture, Food and the Marine argued the challenge had become moot due to the regulation being superseded, the judge noted. It was also submitted that the regulation was in compliance with the CFP when one had regard to all the relevant recitals and provisions, including a 2019 European regulation establishing a multi-annual plan for stocks fished in western waters.
It was also submitted that the catch fixed for cod, plaice and whiting were merely to cater for by-catch in mixed fisheries.
However, Mr Justice Barr said the CFP sets a “clear mandatory obligation” that is “not merely an aspirational objective” that should be achieved by 2020. This is true also when read in conjunction with the 2019 regulation, he said.
With this interpretation, he said the court has “serious doubts” about the legality of the 2020/123 regulation and is thus obliged to refer the issue to the CJEU for a determination as to its validity. The court cannot decide on other grounds of challenge raised, such as the validity of the domestic notices, as it awaits an outcome from the referral, said the judge.
He gave the parties time to agree terms of the question that will be referred to the CJEU.
