Cork Institute of Technology v Minister for Transport, Tourism and Sport

JudgeMr Justice Max Barrett
Judgment Date19 December 2017
Neutral Citation[2017] IEHC 762
Docket Number2017 No. 337 JR
CourtHigh Court
Date19 December 2017

[2017] IEHC 762


Barrett J.

2017 No. 337 JR

- and -

International law - Shipping - Maritime training - Validity of Marine Notice - Directive 2008/106/EC - Seafarer and fisher certification - Breach of fair procedures - Charter of Fundamental Rights of the European Union ('CFREU') - Legitimate expectations

Facts: The applicants challenged the validity of a Marine Notice issued by the first named respondent ('Minister'). The Notice required all the institutes to conduct maritime training and issue certificates only under the authority of the Minister after seeking its approval. The applicants contended that the refusal of Ireland to recognize certificates of proficiency issued by the second named applicant, SEFtec NMCI Offshore Training Limited ('SNO') under the authority of the prestigious United Kingdom's Maritime & Coastguard Agency ("MCA"), after the completion of training at National Maritime College of Ireland ("NMCI") was in contravention of European law. The applicants sought an order of certiorari for quashing the Marine Notice alongwith certain declaratory reliefs. The applicants claimed that the said Notice was in breach of their right to earn livelihood pursuant to CFREU.

Mr. Justice Max Barrett granted an order of certiorari to the applicants. The Court also granted an order of mandamus requiring the Minister to recognise certificates of proficiency issued by SNO to seafarers pursuant to training courses approved by the MCA. The Court granted a declaration that the Marine Notice was ultra vires and/or entirely without legal basis. The Court also granted a declaration that the Notice was vitiated by manifest error and breached the applicants' legitimate expectations. The Court found that the Minister previously approved the MCA-approved certificates repeatedly and lawfully and thus, there was legitimate expectation from the Minister that it would continue to do so in future. The Court held that the Minister resiled from its earlier representations, which was unjustified. The Court however, held that there was no breach of natural or constitutional justice as the applicants were not consulted prior to the issuing of the Marine Notice. The Court observed that since the Notice involved a disproportionate and unjustifiable encroachment on various rights enjoyed by the applicants, it was manifestly erroneous.

JUDGMENT of Mr Justice Max Barrett delivered on 19th December, 2017.

(Numbers in square brackets are paragraph numbers)

I. Marine Notice No.6 of 2017 [1]

II. The Parties [3]

III. Key Issue Arising [5]

IV. A Minor Point of Style [6]

V. Reliefs Sought [7]

VI. The STCW Convention [8]

VII. A Brief Overview of Certain European-level Legislation [9]

(i) Introduction. [9]

(ii) The 2001 Directive. [10]

(iii) The 2005 Directive and the 2008 Directive. [14]

(iv) The 2012 Directive. [16]

(v) Interpretation of European Union legislation. [18]

VIII. Some Other Issues Presenting [19]

IX. Some Aspects of the Marine Notice [22]

X. Two Authorisations and Some Compliance Requirements [23]

(i) Overview. [23]

(ii) Example of MCA Authorisation. [24]

(iii) Example of MSO Authorisation. [26]

(iv) Reference to Domestic Legislation. [29]

(v) MCA Compliance Requirements. [30]

XI. The Detail of the Directives [31]

(i) The 1989 Directive. [31]

a. Recitals. [31]

b. The Mutual Recognition Obligation. [33]

c. Some Case-Law Concerning the 1989 Directive. [36]

I. Commission of the European Communities v. Hellenic Republic ( Case C-274/05) [36]

II. Khatzithanasis v. Ipourgos Igias kai Kinonikis Allilengiis and anor ( Case C-151/07) [39]

(ii) The 2001 Directive. [NO LONGER IN FORCE] [41]

a. Recitals. [41]

b. Training and Certification. [44]

c. Penalties or disciplinary measures. [48]

d. Quality Standards. [50]

e. Certain responsibilities of Member States. [52]

f. Recognition of Certificates. [54]

g. A Concluding Note. [56]

(iii) The 2005 Directive. [57]

a. Recitals. [57]

b. Article 3. [58]

(iv) The 2008 Directive. [59]

a. Recitals. [59]

b. Some Definitions. [60]

c. Scope of Directive. [61]

d. Training and Certification. [62]

e. Certificate. [65]

f. Certificates and Endorsements. [66]

g. Training Requirements. [67]

h. Prevention of fraud and other unlawful practices. [68]

i. Quality Standards. [70]

j. Medical Standards. [71]

k. Revalidation of Certificates. [72]

l. Use of Simulators. [73]

m. Responsibilities of Companies. [74]

n. Responsibilities of Member States re. Training and Assessment. [77]

o. Recognition of Certificates. [78]

p. Port State Control and Detention. [80]

q. Penalties. [82]

r. Repeal. [84]

(v) The 2012 Directive. [86]

a. Recitals and Certificates. [86]

b. Training and Certification. [90]

I. Article 3. [90]

II. Applicability of the 2005 Directive. [92]

III. The Committee on Safe Seas. [95]

IV. Certain Averments of Mr Hogan. [97]

c. Certificates of Competency, Certificates of Proficiency and Endorsements. [101]

I. A New Variety of Certificates. [101]

II. Recognition of Third-Country Certificates. [103]

d. Prevention of Fraud and Other Unlawful Practices. [105]

e. Responsibilities of Companies. [108]

f. Penalties. [110]

(vi) Some Conclusions. [111]

XII. Some Points Made by the Respondents concerning the 2008 Directive (as amended) [114]

(i) Recital 6. [114]

(ii). Recital 15. [115]

(iii). Recital 17. [117]

(iv). Article 3. [118]

(v). Article 5. [120]

(vi). Article 5(a). [123]

(vii). Article 6. [125]

(viii). Article 8. [126]

(ix). Article 9. [129]

(x). Article 10. [132]

(xi). Article 17. [135]

(xii). Article 25. [136]

(xiii). Article 29. [137]

XIII. The 2014 Regulations [138]

(i) Interpretation. [138]

(ii) Competent authorities. [139]

(iii) Application and Prohibition on Serving. [140]

(iv) Qualification, Training and Examinations. [141]

a. Qualification. [141]

b. Training. [142]

c. Examinations. [143]

(v) Certificates and Endorsements. [144]

a. General. [144]

b. Revalidation of Certificates. [146]

c. Recognition of Certificates. [147]

d. Responsibilities of Companies and Masters. [150]

e. Inquiry. [153]

f. Forgery. [154]

g. Powers of Authorised Officers. [155]

h. Penalties and Fixed Payment Notices. [156]

XIV. Merchant Shipping (Certification of Seamen) Act 1979 [158]

XV. Previous Interaction between Parties [159]

(1) E-mail of 25th April, 2016 (MSO to Donegal Seamanship Centre). [160]

(2) Letter of 8th June, 2016 (Cork Institute of Technology to Department of Transport, etc).[163]

(3) Letter of 16th June, 2016 (IMA to CIT). [165]

(4) Letter of 23rd June, 2016 (CIT to MSO). [167]

(5) E-mail of 30th June, 2016 (Department official to Seafarer #1). [169]

(6) E-mail of 1st July, 2016 (Seafarer #2 to NMCI). [170]

(7) E-mail of 4th July, 2016 (Seafarer #2 to NMCI). [172]

(8) Letter of 5th July, 2016, (O'Flynn Exhams to Minister for Transport, etc). [174]

(9) E-mail of 11th July, 2016 (SNO to MSO). [175]

(10) (Disputed) Minutes of Meeting of 12th July, 2016. [176]

(11) E-mail exchange of 13th and 15th July, 2016. [190]

(12) E-mail of 15th July, 2016 (IMA to SNO). [193]

(13) E-mail of 27th July, 2016 (SNO to IMA). [195]

(14) Letter of 27th July, 2016 (O'Flynn Exhams to Minister of Transport, etc). [196]

(15) E-mail of 28th July, 2016 (SNO to IMA). [197]

(16) E-mails of 29th July, 2016 (IMA to SNO). [199]

(17) E-mail of 2nd August, 2016 (SNO to IMA). [202]

(i) The Substance of the E-mail. [202]

(ii) Certain Documentation from the United Kingdom. [204]

a. Introduction. [204]

b. E-mail of 23rd December, 2015 (sent within UK Department for Transport). [205]

(18) E-mail of 5th August, 2016 (IMA to SNO). [207]

(19) E-mail of 5th August, 2016 (SNO to IMA). [208]

(20) E-mail of 10th August, 2016 (IMA to SNO). [209]

(21) Letter of 28th September, 2016 (MSO to O'Flynn Exhams). [210]

(22) Letter of 13th October, 2016 (O'Flynn Exhams to MSO). [212]

(23) Letter of 27th October, 2016 (Cork Institute of Technology to IMA). [213]

(24) Letter of 28th November, 2016 (MSO to Cork Institute of Technology). [215]

(25) E-mail of 5th December, 2016 (Department to SNO). [217]

(26) Undated letter (under cover of e-mail of 19th December, 2016) (Department to O'Flynn Exhams) [218]

XVI. The Marine Notice [220]

(i) Surprising Certainty. [220]

(ii) Further Letter to Minister. [223]

(iii) Terse Response. [224]

XVII. European Maritime Safety Agency [225]

XVIII. European Commission Correspondence. [229]

XIX. Article 56 TFEU [231]

XX. The Charter, the Constitution and the Convention [248]

(i) Introduction. [248]

(ii) Some General Comments. [249]

a. Application of the Charter, Constitution and Convention. [249]

b. Sequencing of Consideration. [250]

c. Proportionality. [251]

(iii) Freedom to Conduct Business and Right to Property. [252]

(iv) Level of Interference. [255]

XXI. Manifest Error [256]

XXII. Legitimate Expectation [257]

(i) Overview. [257]

(ii) Application of Principle. [258]

XXIII. General Principles [260]

(i) Equal Treatment and Legal Certainty [260]

a. Equal Treatment. [260]

b. Legal Certainty. [263]

(ii) Good Administration and Transparency. [264]

a. Good Administration. [264]

b. Transparency. [266]

c. Conclusion. [268]

XXIV. Natural and...

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