O'Sullivan v Sea Fisheries Protection Authority

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 12 December 2017
• Neutral Citation: [2017] IESC 75
• Court: Supreme Court
• Docket Number: [S.C. No. 50 of 2016],50/16
• Date: 12 December 2017

Between/

Patrick O'Sullivan

and

Cathal O'Sullivan

Plaintiffs

v

The Sea Fisheries Protection Authority

and

The Minister for Agriculture Food and the Marine,

Ireland

and

the Attorney General

Defendants

[2017] IESC 75

O'Donnell Donal J.

Clarke C.J.

O'Donnell Donal J.

McKechnie J.

MacMenamin J.

Dunne J.

50/16

SUPREME COURT

Fisheries – Regulation of – Licence for vessel – Points system - European (Common Fisheries Policy) (Point System) Regulations 2014 – Council Regulations (EC) No 1005/2008 & (EC) 1224/2009

Facts: The respondent had been boarded and searched by officers of the first appellant. A large quantity of unrecorded fish was found, giving rise to a possible offence and application of the European (Common Fisheries Policy) (Point System) Regulations 2014. These had been brought into force to give effect to the requirements of Council Regulations (EC) No 1005/2008 & (EC) 1224/2009. The High Court in this case and the related case of Crayden Fishing Company Limited v Sea Fisheries Protection Authority & ors had found that the 2014 Regulations were invalid in respect of art 15.2.1 of the Constitution and fair procedures respectively. Subsequently fresh domestic regulations were introduced which revoked and replaced the 2014 Regulations entirely. The matter now came on appeal in both cases to the Supreme Court (see [2017] IESC 74).

Held by O’Donnell J that the appeal would be dismissed in part. The Court considered that the appeal was not moot as argued by the respondent given the public importance of the issue in respect of the Constitution and EU Law. The Court reviewed the domestic and European legislation, including s 3 of the European Communities Act 1972 and whether the manner in which the 2014 Regulations were introduced and operated was lawful. The Court was satisfied that the establishment of procedures under the 2014 Regulations was not in principle unconstitutional and the appeal would be allowed on that point. However, the manner in which the 2014 Regulations operated failed to meet the requirement of fair procedures and the appeal would be dismissed in that respect.

Judgment of O'Donnell J. delivered the 12th December, 2017.

1 These proceedings concern a direct appeal pursuant to the provisions of Article 34.5.4 of the Constitution from the decision of the High Court (O'Connor J) of the 15th of January 2016, in which the High Court held that the European Union (Common Fisheries Policy)(Point System) Regulations ( SI No.3/2014) made by the Minister for Agriculture Food and the Marine on the 8th of January 2014, (and which I will refer to hereafter as ‘the 2014 Regulations’) contravened principles of Irish constitutional law. On the 2nd of March 2016, having heard submissions from both parties he made an Order declaring that the entirety of the Regulations were invalid having regard to the provisions of Article 15.2.1 of the Constitution which provides that the sole and exclusive power of making laws is vested in the Oireachtas. It should be said at this point, that for reasons I will explain shortly, that Order was made effectively by agreement of the parties, the Court noting in the Order that in the intervening time the 2014 Regulations had been repealed and replaced by SI 125 of 2016, the European Union (Common Fisheries Policy)(Point System) Regulations of 2016 (referred to hereinafter as ‘the 2016 Regulations’). The case raises important questions as to the interaction between European law and the Constitutional provisions relating to the making of law.

2 In broad, and perhaps overly simple terms, the 2014 Regulations created what was described as a stand alone system for the application of points to licences for the conduct of sea fishing. The Sea Fisheries Protection Authority (‘SFPA’) was designated as the competent authority, and where a serious infringement of fisheries rules was detected by a sea fisheries protection officer, the SFPA, having determined that the infringement was indeed ‘serious’ was obliged to propose the assignment of points to the holders of an Irish licence, and notify the holder of the licence of that proposed assignment. Similar and parallel provisions were made for vessels which were licensed in other Member States, to permit such proposed assignment of points to take effect in respect of such licences. The notification to the holder of the licence was also to inform the holder, of an entitlement to appeal within a fixed period of 21 days to an independent appeals officer. If there was no such appeal, or if the appeal was unsuccessful, then the points were applied. In any such appeal, the onus was on the licence holder to show, on the balance of probabilities, that either the incident did not occur, did not involve the vessel, occurred prior to the coming into force of the Regulations, or was not serious. A party to the appeal could in turn apply to the High Court by way of appeal on a point of law and the decision of the High Court on such point of law was deemed to be final and conclusive.

3 It may be noted from even this brief description, that the Regulations of 2014 do not themselves define the infractions which may give rise to the points procedure, or give to the SFPA, or any appeal officer, any discretion as to the amount of points to be applied in respect of any particular matter. Nor do the Regulations set out the consequences of the attachment of points to a licence or provide for the removal of such points. The silence of the Regulations on these matters is indeed just one illustration of the fact that the Regulations of 2014 are a small component of a European Union wide system of fisheries control created by European law intended to apply, and be applied, uniformly across the Member States. Accordingly it is European legislation establishing the system of points which makes provision for all these matters, the full detail of which it is not necessary to elaborate on for the purposes of these proceedings. In brief terms however, a number of matters are specified as impermissible, the most important of which for present purposes is what is described as illegal, unreported and unregulated fishing (‘IUU fishing’) in European Union waters. The points to be applied to a licence in respect of each specified infraction once a breach is determined to be serious, is fixed and determined by European Union law. On the accumulation of a certain number of points, a licence is automatically suspended for a period. If more points are accumulated, an increased period of suspension applies, until ultimately, if 90 points are attached to a licence, the licence is removed altogether. If however points are not accumulated in a period of three years from the latest infraction, then all the points are removed, and the clock, as it were, is reset to zero. Importantly, the points attach to the licence, and accordingly pass with the licence on transfer. It is accordingly a process targeted at the licence and the licence holder rather than the Master of the vessel (who traditionally was the focus of enforcement measures), and is designed to be a graduated regime intended to be dissuasive, but which necessarily has as its end point the possibility of removal of a licence. All these matters are fixed by provisions of European law intended to implement the Common Fisheries Policy.

4 As even this brief account shows, and indeed as is evident from their title, the Irish Regulations of 2014 were introduced pursuant to obligations applicable to this jurisdiction by the law of the European Union. It is necessary now to turn to those provisions of European law to place the impugned Regulations of 2014 in their legal context.

5 Under Article 4 of the Treaty on the Functioning of the European Union (‘TFEU’) the Union and the Member States share competence in the area of agriculture and fisheries excluding the conservation of marine biological resources. The conservation of such resources under the Common Fisheries Policy is an area of exclusive competence of the Union: Article 3(1)(d) TEEU. On the 29th of November 2008, the European Council adopted Council Regulation (EC) 1005/2008 which recorded at Recital 3 that illegal, unreported and unregulated (‘IUU’) fishing was one of the most serious threats to the sustainable exploitation of living aquatic resources, and jeopardised the very foundation of the Common Fisheries Policy. EC Regulation 1005/2008 has been described in these proceedings as the IUU Regulation, and I will adopt this helpful terminology.

6 The IUU Regulation: Council Regulation (EC) No 1005/2008

Recital 2 of the IUU Regulations states that it is essential that the Community adopt dissuasive measures against fishing vessels carrying out IUU fishing. Recital 34 recognises the persistence of a high number of serious infringements against the rules of the Common Fisheries Policy within Community borders, and that such persistence is caused to a large extent by the non-deterrent level of sanctions prescribed within Member States' legislation in relation to serious infringements. Accordingly, the Regulation introduces a system of European wide sanctions.

7 Article 3 of the Regulations provides that a fishing vessel shall be presumed to be engaged in IUU fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has done any one of a number of things detailed in 12 subparagraphs running from (a) fishing without a valid licence, to (l) being of no nationality and therefore a Stateless vessel in accordance with International law. Included in the prohibited conduct are concealing, tampering with evidence, or obstructing the work of officials, fishing in a closed area, or using prohibitive or non compliant fishing gear. Article 3 accordingly provides an extensive range of conduct which is prohibited. Article 10 provides for...