Atlantean Ltd v Minister for Communications and Natural Resources and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 12 July 2007
• Neutral Citation: [2007] IEHC 233
• Court: High Court
• Date: 12 July 2007

ATLANTEAN LTD v MIN FOR COMMUNICATIONS & ORS

BETWEEN

ATLANTEAN LIMITED

APPLICANT

AND

THE MINISTER FOR COMMUNICATIONS AND NATURAL RESOURCES, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2007] IEHC 233

[No. 103 J.R./[2007]]

THE HIGH COURT

COMMERCIAL

EUROPEAN UNION

Common fisheries policy

Fair procedures - Ministerial decision - - Whether ministerial decision reducing applicant's fishing quota breached principles contrary to constitutional justice - Ministerial power in allocating national fishing quota - Validity of community measure - Time limit - Delay -Whether delay of three and half months fatal where relief sought confined to damages - Mooney v An Post [1998] 4 IR 288, De Róiste v Minister for Defence [2001] 1 IR 190, O'Brien v Moriarty [2005] 2 ILRM 321 and BTF v DPP [2005] ILRM 367 considered - Commission Regulation E.C./874/1996, article 5(1) - Applicant granted relief (2007/103JR - Clarke J - 12/7/2007) [2007] IEHC 233

Atlantean Ltd v Minister for Communications and Natural Resources

the European Union granted Ireland a national quota of mackerel which could be landed by Irish boats in any one year. The applicant had been granted a portion of that national quota by the respondent. It had been contended that the applicant had been involved in undeclared illegal landings of fish in Scotland, as a result of which the European Commission reduced the national quota by means of two Regulations, (EC) No. 742/2006 and (EC) 147/2007. As a result of information given to the respondent by the relevant Scottish authorities, the respondent decided that the applicant should bear the brunt of that national quota reduction by re-allocating its quota for 2006 and subsequent years. The applicant sought to quash the respondent’s decisions by way of judicial review. The applicant’s primary complaint was in relation to the allegedly unfair manner in which the respondent had come to the decision that the applicant had been the main culprit in undeclared landings in Scotland, it having requested information from the respondent as to how it had reached its conclusions, which request had never been responded to. The applicant also contended that the respondent had no jurisdiction to reduce the quota as the Commission Regulation implementing the threatened reduction of national quota had not, by that time, been implemented.

Held by Mr Justice Clarke in quashing the respondent’s decisions that a decision which had a significant effect on a person’s business had to comply with the rules of constitutional justice. Failing to afford a person some reasonable opportunity to know the basis of allegations made against it, so as to pass the burden on to that person to make a more detailed response to such allegations, would breach those principles of constitutional justice.

The respondent’s authority to make allocations of quota to individual boats stemmed from the provisions of the Sea Fisheries and Maritime Jurisdiction Act 2006 and there was no absolute entitlement on the part of any boat to the continuance of any particular level of quota. The respondent did not have to place reliance on the Regulations for his decision and was entitled to take into account the fact that the national quota was going to be reduced in allocating quota and was, in principle, entitled to calculate the quota which he allocated to individual vessels in a manner which had proper regard to the actions of individual vessels which were the subject of a sustainable finding of having made undeclared landings.

Reporter: P.C.

EEC REG 147/2007

EEC REG 742/2006

MOONEY v AN POST 1998 4 IR 288 1997 10 3360

SEA FISHERIES & MARITIME JURISDICTION ACT 2006

EEC REG 2371/2002

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001 6 1371

O'BRIEN v MORIARTY 2005 2 ILRM 321 2005 45 9458 2005 IESC 32

F (B T) v DPP 2005 2 IR 559 2005 2 ILRM 367 2005 24 4872 2005 IESC 37

1. Introduction

2 1.1 The applicant ("Atlantean") owns a motor fishing vessel of the same name. Atlantean has over the years benefited from a mackerel fishing quota. In circumstances which are at the heart of these proceedings the first named respondent ("the Minister") has made a number of decisions which have had the effect of reducing the mackerel fishing quota allocated to Atlantean. In these proceedings Atlantean seeks to challenge the relevant decisions of the Minister.

3 1.2 The background to the Minister's decision stems from the apparent discovery by the relevant authorities in Scotland of undeclared landings of mackerel. Those undeclared landings were brought to the attention of the relevant EU authorities. It would appear that it was contended that Irish boats had, amongst others, been involved in the relevant undeclared landings. As a result, and in purported reliance on the relevant EU legislative regime, the competent authority within the EU (theCommission) has imposed a reduction in the mackerel quota applicable to Ireland. That reduction was implemented by two separate Commission Regulations to which it will be necessary to refer to in due course. In these proceedings Atlantean seeks to challenge the validity of at least certain aspects of the overall quota reduction which Ireland has suffered. However the principal focus of the claim which Atlantean makes, as against the Minister, concerns the way in which the Minister responded to the reduction in Ireland's mackerel quota.

4 1.3 In October 2006 the Minister came to the view that the MFV Atlantean was responsible for a significant amount of the alleged undeclared landings in Scotland. The Minister further came to the view that the burden of the reduced quotas available to Ireland (resulting from such undeclared landings) should be borne by those boats, including the Atlantean, who had, in the Minister's view, been guilty of making the undeclared landings concerned. In those circumstances two separate decisions appear to have been taken. On 24 ^th October, 2006 the Minister wrote to Atlantean informing its Managing Director that a decision had been taken not to grant any authorisation to the MFV Atlantean to fish for mackerel in the autumn fishery of 2006 ("the October decision"). On 24 ^th January, 2007 the Minister granted the MFV Atlantean what would appear to be a reduced mackerel authorisation for the spring fishery 2007 which was stated to have been the subject of deductions to compensate for alleged over fishing in the years 2001/2004. That letter also indicated that further deductions would be made in the years 2008-2012 for the purposes of "compensating" for the same over fishing ("the January decision"). Against that general background it is necessary to turn to the issues in this case.

2. The Issues

2 2.1 In substance there are three sets of issues which I have to decide.

3 2.2 Firstly Atlantean claims that the manner in which the Minister came to the conclusion that Atlantean had been guilty of undeclared landings in Scotland was in breach of the principles of constitutional justice. In those circumstances Atlantean maintains that the Minister's decisions must be quashed. It should be noted that Atlantean does not complain about the principle adopted by the Minister to the effect that persons found responsible for undeclared landings, which result in a reduction in any relevant Irish fishing quota, should bear the burden of any such reductions. Indeed, having regard to the undoubted entitlements of all other fishermen with a legitimate interest in the distribution of the Irish quota, it is difficult to see how any other position could be adopted. It is not, therefore, in contest but that the Minister would have been entitled to impose the reductions concerned had he come to a sustainable conclusion that the Atlantean had been involved in unlawful landings. This issue is, therefore, solely concerned with the process which led to that ministerial conclusion.

4 2.3 Secondly certain technical arguments are raised concerning the reduction in the Irish quota by Commission Regulation (147/2007) and the timing of the Minister's January decision by reference to that Commission Regulation. It is contended that the reduction in quota imposed on Ireland by the Commission for all years other than 2006 is impermissible. This contention turns on the proper construction of the relevant EU legislation. In addition, under this heading, it will be necessary to deal with the Minister's argument to the effect that these proceedings are not the appropriate means of contesting the validity of the measures concerned. It is alsocontended that the January decision was ultra vires as it predated the relevant Commission Regulation.

5 2.4 Thirdly the Minister argues that Atlantean has become disentitled to any relief to which it might otherwise be entitled by virtue of delay. In order to properly analyse the delay issue it will be necessary to go into the principal contention of Atlantean in further detail to consider when it can properly be said that the relevant cause of action accrued. It is also said that the affidavit evidence put forward by Atlantean lacks candour and that this should also, as a matter of discretion, disentitle Atlantean to any relief.

6 2.5 It, therefore, seems appropriate to turn firstly to the question of the procedures adopted by the Minister in coming to the disputed conclusion. I propose starting with a more detailed consideration of the factual background.

7 2.6 I should also note that Atlantean claims damages in these proceedings. By agreement of the parties, however, any question as to damages has been left over until the issues which I have identified have been resolved.

3. Fair Procedures - The Facts

2 3.1 In 1983, for the purposes of the conservation and management of the Community fishery, the European Community established a total allowable...