Friends of the Irish Environment Clg v The Minister for Agriculture, Food and The Marine, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 08 February 2022 |
| Neutral Citation | [2022] IEHC 64 |
| Docket Number | [Record No. 2020/396 JR] |
| Year | 2022 |
| Court | High Court |
[2022] IEHC 64
[Record No. 2020/396 JR]
THE HIGH COURT
JUDGMENT of Mr. Justice Barr delivered electronically on the 8th day of February, 2022
The applicant is a company limited by guarantee. It is also a registered charity. It has been active in various issues concerning the Irish environment for a number of years.
The respondent is the Minister with responsibility for issuing fisheries management notices pursuant to the Sea Fisheries and Maritime Jurisdiction Act 2006, setting limits on the number of fish that may be caught by Irish vessels, within the period specified in the notice. The notices are usually issued on a monthly basis.
The primary purpose of the present application is to secure a reference from the court to the Court of Justice of the European Union (hereinafter ‘the CJEU’) as to the legality of Council Regulation (EU) 2020/123 of 27th January, 2020, fixing for 2020 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and for Union fishing vessels in certain non-Union waters (hereinafter ‘Regulation 2020/123’).
The applicant's challenge arises in the following way: What are known as fishing opportunities are fixed pursuant to regulations passed by the European Parliament, and the Council, being Regulation 1380/2013, also known as the Common Fisheries Policy (hereinafter referred to as ‘the CFP’). Each year pursuant to the CFP, the Council fixes what is known as the total allowable catch (hereinafter ‘TAC’) for each species of fish in various areas of the ocean adjacent to European states.
Each year when the TAC is fixed for each species of fish, and has been divided up among the Member States, the respondent issues fisheries management notices on a monthly basis, stipulating the quantity of each species that may be landed by Irish vessels in that period.
The applicant's case is that the TAC fixed by the Council for 2020 in Regulation 2020/123, was in breach of the provisions of the CFP and was therefore illegal; with the consequence that the fisheries management notices issued by the respondent during 2020, were also invalid under EU law.
The basis of the alleged invalidity of Regulation 2020/123 arises in the following way: Article 2(2) of the CFP provides that in order to reach the objective of progressively restoring and maintaining populations of fish stock above biomass levels capable of producing maximum sustainable yield, the maximum sustainable yield exploitation rate shall be achieved by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks.
Article 16.4 of the CFP provides that fishing opportunities shall be fixed in accordance with the objectives set out in Art. 2(2) and shall comply with quantifiable targets, timeframes and margins established in accordance with Art. 9(2) and points (b) and (c) of Art. 10(1).
The CFP further provides that in fixing the TAC for each species, the Council shall have regard to the best available scientific advice that is provided by the International Council on the Exploration of the Seas (hereinafter ‘ICES’).
For the purposes of this application, the applicant selected a representative sample of three species of fish from four particular fisheries. They referred to cod for the fisheries designated as West of Scotland and the Celtic Sea, whiting in the Irish Sea and plaice in the Celtic Sea south. These are designated fisheries in respect of which ICES gave separate catch advice.
For each of the species in each of the relevant fisheries, ICES had advised that for 2020 there should be a zero catch in order to achieve MSY. In Regulation 2020/123, the Council set catch limits as follows: cod in West of Scotland – 1279 tonnes; cod in the Celtic Sea – 805 tonnes; whiting in the Irish Sea – 721 tonnes; and plaice in the Celtic Sea south – 67 tonnes.
The applicant submits that in disregarding the advice from ICES, which constituted the best available scientific advice, the Council acted unlawfully and in breach of the CFP by setting TACs for the species concerned at levels above zero.
The applicant accepted that national courts do not have the power to declare acts of European institutions to be invalid. That can only be done by the CJEU. It is on that basis that the applicant seeks a reference to the CJEU under Art. 267 of TFEU, for a determination on the validity of Council Regulation 2020/123.
In response and by way of preliminary objection, the respondent submitted that the court should not entertain the applicant's challenge, due to the fact that it had become moot, because the 2020 Regulation had expired and had been replaced by a further regulation fixing TACs for 2021. Indeed, that regulation would shortly be replaced by a further regulation fixing TACs for 2022. Furthermore, the monthly fishing management notices under challenge had long since expired.
On the substantive challenge raised by the applicant, the respondent agreed that national courts could not declare a measure of EU law to be unlawful or invalid. That could only be done by the CJEU.
However, it was submitted that if the national court was satisfied that the challenge to the legality of the particular measure, as raised by the applicant, was without substance, the national court had jurisdiction to declare the measure valid under EU law. Counsel for the respondent accepted that if the national court had doubts about the validity of the measure of EU legislation, it had to refer the matter to the CJEU.
The respondent submitted that Regulation 2020/123 was in compliance with the CFP, when one had regard to all the relevant recitals and to the provisions of the CFP, rather than having regard to one particular subparagraph in the article of the CFP setting out the objectives of the policy.
In addition, it was submitted that the CFP had to be read in conjunction with Regulation 2019/472 of the European Parliament and of the Council establishing a multi-annual plan for stocks fished in the Western Waters (hereafter the “Western Waters Regulation”). It was submitted that when both documents were read together, it was clear that the Council had to engage in an extremely complex assessment of a multifaceted issue; in particular, in relation to the difficulty of fishing in mixed fisheries, where a particular species may be caught by way of by-catch, when other species were the target catch. In addition, it was submitted that the Council was obliged to have regard to the economic effects on the livelihoods of those involved in the fishing industry and those communities living in coastal areas, who depended on fishing for their livelihoods. It was submitted that when the provisions of the CFP and the Western Waters Regulation were read together, it was clear that the Council had not acted unlawfully in fixing the TACs for 2020 in the manner that they had done. Accordingly, it was submitted that the court should hold Regulation 2020/123 to be valid and therefore it was unnecessary to make a reference to the CJEU.
Those are the broad parameters of the issues before the court. The arguments of the parties will be set out in more detail later in the judgment.
Unfortunately, there are numerous technical terms in this case, which will have to be referred to in this judgment, as they formed part of the argument of counsel. It will be helpful to the reader to set out a general description of the various bodies, terms and acronyms at this stage:
Maximum sustainable yield – means the highest theoretical equilibrium yield that can be continuously taken on average from a stock under existing average environmental conditions without significantly affecting the reproduction process (hereafter “MSY”);
FMSY – is the value of the estimated fishing mortality that with a given fishing pattern and under current average environmental conditions gives the long term maximum yield;
Range of FMSY – means a range of values provided in the best available scientific advice, in particular from ICES or a similar independent scientific body recognised at Union or international level, where all levels of fishing mortality within that range result in MSY in the long term with a given fishing pattern and under current average environmental conditions, without significantly affecting the reproduction process for the stock in question. It is derived to deliver no more than a five percent reduction in long term yield compared to the MSY. It is capped so that the probability of stock falling below the limit spawning stock biomass reference point (BLIM) is no more than 5%;
MSYF lower – means the lowest value within the range of FMSY;
MSYF upper – means the highest value within the range of FMSY;
BLIM – means the spawning stock biomass reference point provided for in the best available scientific advice, below which there may be reduced reproductive capacity;
stock – means a marine biological resource that occurs in a given management area;
mixed fisheries – means fisheries in which more than one species is present and where different species are likely to be caught in the same fishing operation;
spawning stock biomass – means an estimate of the mass of the fish of a particular stock that reproduces at a defined time, including both males and females and fish that reproduce viviparously;
MSY Btrigger – means the spawning stock biomass reference point, below which specific and appropriate management action is to be taken to ensure that exploitation rates in combination with natural variations rebuild stocks above levels capable of producing MSY in the long term;
By-catch — refers to a species of fish that is...
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