Minister for Fisheries (No. 2), Pesca Valentia Ltd

JurisdictionIreland
Judgment Date01 January 1990
Date01 January 1990
Docket Number[1984 No. 9262P]
CourtHigh Court
Pesca Valentia Ltd. v. Minister for Fisheries (No. 2)
Pesca Valentia Limited
Plaintiff
and
The Minister for Fisheries and Forestry, Ireland and The Attorney General, Defendants (No. 2)
[1984 No. 9262P]

High Court

High Court

European Communities - Fisheries - Sea fisheries - Boats - Preliminary ruling by Court of Justice of European Communities - Nationality of crews - Licence to fish within exclusive fishing limit - Domestic law making it condition for grant of licence that at least 75% of crew E.C. nationals - Plaintiff challenged validity of domestic law under law of E.C. - Issues - Whether statutory provision and condition made pursuant thereto attempt to regulate sea fishing contrary to Treaty of Accession, 1972, and regulations - Whether discrimination on grounds of nationality - Whether within competence of court to resolve issues under E.C. law - Whether the issues res integra - Whether preliminary ruling of Court of Justice should be sought where serious doubt as to interpretation of E.C. law - Whether appropriate for High Court to determine issues thereby enabling appeal to Supreme Court which might then seek preliminary ruling of Court of Justice - Sea-Fishing Boats Regulations, 1983 (S.I. No. 246) - Regulation (E.E.C.) No. 101/76, articles 1 and 2, s. 1 - Regulation (E.E.C.) No. 170/83, article 6 - Merchant Shipping Act, 1894 (57 & 58 Vict., c. 60), Part IV - Sea Fisheries Act, 1952 (No. 7), s. 9 - Fisheries (Consolidation) Act, 1959 (No. 14), ss. 222B and 222C - Fisheries (Amendment) Act, 1983 (No. 27), ss. 2 and 3 - European Economic Community Treaty, 1957, Articles 7 and 177 - Treaty of Accession, 1972, Articles 100 and 102 - Treaty of Accession, 1985.

Government - Decision of public authority - Unreasonableness or irrationality - Doctrine of legitimate expectation - Condition attached to licence to fish within exclusive fishing limits - Grounds for alteration communicated to plaintiff - Plaintiff heard regarding changes - Implementation delayed to take account of plaintiff's difficulties - Whether decision of public authority can be set aside where unreasonable to extent that it flies in the face of common sense - Whether condition constituted such unreasonableness - Whether sufficient for plaintiff to establish that adversely affected where public authority entitled to reach decision - Sea-Fishing Boats Regulations, 1983 (S.I. No. 246) - Sea Fisheries Act, 1952 (No. 7), s. 9 - Fisheries (Consolidation) Act, 1959 (No. 14), ss. 222B and 222C - Fisheries (Amendment) Act, 1983 (No. 27), ss. 2 and 3.

Equity - Estoppel - Equitable estoppel - Promissory estoppel - Doctrine of legitimate expectation - Condition attached to licence to fish within exclusive fishery limits - Whether representation necessary before estoppel applicable - Whether plaintiff given assurance that law would not be altered so as to adversely affect it - Whether legal rights would flow from such an assurance - Sea-Fishing Boats Regulations, 1983, (S.I. No. 246) - Sea Fisheries Act, 1952 (No. 7), s. 9 - Fisheries (Consolidation) Act, 1959 (No. 14), ss. 222B and 222C - Fisheries (Amendment) Act, 1983 (No. 27), ss. 2 and 3.

Damages - Assessment - Condition of nationality attaching to fishing licence - Enforcement restrained by injunction - Undertaking as to damages by plaintiff when granted interlocutory injunction - Second defendant not bound by injunction - Issues resolved in favour of defendants by Court of Justice of European Communities - Loss sustained by defendants as measure of damage - Whether profits made by plaintiff during period of illegal fishing measure of damage - Whether loss sustained by first and third defendants - Whether real loss was inability to police fishing regime - Whether second defendant could be compensated for loss when not bound by injunction - Whether fish caught by plaintiff belonged to anyone - Whether damages should be measured by reference to penalties which would have been imposed hud criminal prosecutions proceeded - Whether damages based on criminal penalties constitutionally suspect where no criminal trial - Whether plaintiff's undertaking exonerated defendants from establishing that they suffered damages recoverable from plaintiff - Whether defendants should recover damages.

Injunction - Interlocutory injunction - Undertaking as to damages - Second defendant not bound by injunction - Whether interlocutory injunction should continue for longer than was necessary to maintain the status quo while issues being resolved - Whether a defendant not bound by an injunction could be compensated on foot of plaintiff's undertaking - Whether plaintiff's undertaking exonerated defendants from establishing that they suffered damages.

Article 7 of the Treaty of Rome, 1957, prohibits discrimination on the grounds of nationality within the scope of the application of the Treaty and without prejudice to any special provisions contained therein.

Article 100 of the Treaty of Accession, 1972, provides inter alia that member states are authorised until the 31st December, 1982, to restrict fishing in waters under their sovereignty or jurisdiction within a six mile limit to vessels which fish traditionally in those waters and which operate from ports in that geographical coastal area.

Article 102 of the Treaty of Accession, 1972, provides that from "the sixth year after Accession at the latest, the Council, acting on a proposal from the Commission, shall determine conditions for fishing with a view to ensuring protection of fishing grounds and conservation of the biological resources of the sea".

Article 1 of the Council Regulation (E.E.C.) No. 101/76 provides for the laying down of common rules for fishing in maritime waters. Article 2, s. 1 of the regulation provides that rules applied by each member state in respect of fishing in its maritime waters shall not lead to differences in treatment of other member states and that members shall ensure in particular equal conditions of access to and use of the fishing grounds for all fishing vessels flying the flag of a member state and registered in Community territory.

Council Regulation (E.E.C.) No. 170/83 established a Community system for the conservation and management of fishery resources. Article 6 provides inter alia that from the 1st January, 1983, until the 31st December, 1992, member states shall be authorised to retain the arrangements defined in Article 100 of the Act of Accession, 1972, and to generalise up to 12 nautical miles for all waters under their sovereignty or jurisdiction the limit of six miles laid down in that Article.

The plaintiff company was a joint venture between an Irish and a Spanish company. Its boats were registered in Ireland under Part IV of the Merchant Shipping Act, 1894, and licensed for sea-fishing by the first defendant under s. 9 of the Sea Fisheries Act, 1952. The boats were skippered and crewed exclusively by Spanish fishermen. Spain did not become a member of the E.C. until the 1st January, 1986, pursuant to the Treaty of Accession of the 12th June, 1985.

The Fisheries (Amendment) Act, 1983, was enacted to enable the first defendant to deal with the problem of vessels with predominantly Spanish crews moving to traditionally Irish fishing grounds. Section 2 of the Act of 1983 amended the Fisheries (Consolidation) Act, 1959, by inserting s. 222B which enabled the first defendant to attach conditions to licences granted to fishing boats registered in Ireland including a similar condition requiring 75% of the crew to be E.C. nationals.

The operation of this condition became effective on the issue of the licences on the 17th August, 1984, following an initial postponement to take account of the plaintiff's difficulties in recruiting Irish or English crews. The plaintiff was unable to comply with the condition and continued to fish with its largely Spanish crews. On the 11th September, 1984, one of the plaintiff's boats was arrested and a prosecution was instituted against its master in the Circuit Court on the 3rd November, 1984.

The plaintiff instituted proceedings in the High Court. An interlocutory injunction restraining the defendants from attempting to enforce the condition was granted by the High Court (Lardner J.) on the 12th March, 1985, and the defendants' appeal to the Supreme Court was dismissed but the High Court order was modified to the extent that there was to be no injunction against the second defendant, Ireland. (See [1985] I.R. 193).

The plaintiff submitted (i) that the effect of the Treaty of Accession, 1972, and the E.E.C. Council regulations was to withdraw from the Oireachtas all competence to legislate in the area of sea-fishing and vest that jurisdiction exclusively in the institutions of the Community and that s. 222B of the Act of 1959 and the condition in question constituted an attempt by the Oireachtas to regulate sea-fishing within the exclusive fishing limits contrary to the Treaty of Accession, 1972, and the E.E.C. regulations and (ii) that the condition was contrary to the law of the Community, especially Article 7 of the Treaty of Rome, as permitting a form of covert discrimination in favour of Irish nationals.

The defendants submitted (i) that the Articles of the Treaty of Accession, 1972, and the Council regulations were directed to conservation of biological resources of the sea and did not restrict a member state from imposing a condition of this nature on licences granted to persons fishing in the exclusive fishery limit of the State and (ii) that the impugned condition was expressly non-discriminatory and if anything constituted a form of positive discrimination in favour of E.C. nationals.

The defendants, while conceding that it was a case in which it was open to the court to seek a preliminary ruling, suggested that the issues be decided in the High Court so as to enable either party to appeal to the Supreme Court.

Held by Keane J., in deciding to refer the...

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