The Supreme Court’s decision to refer the Porcupine case to the CJEU could have widepread effects across fishing in the EU
The Supreme Court’s decision to refer an appeal by two Irish fishermen over the method used by the SPFA to calculate nephrop catches to the Court of Justice in the EU (CJEU), could have a wide effect on fishing across the Member States.
The case which dates back to November 2017, when then Minister for Agriculture, Food and the Marine, Michael Creed, TD, ordered the closure of nephrop fishing in Functional Area 16 (FU16), also known as the Porcupine Basin, which lies to the west of Ireland, could lead to a make or break for fisheries authorities.
At the heart of the case lies a controversial decision taken by the Sea-Fisheries Protection Authority (SFPA) in regards to estimating catches made by Irish fishing vessels.
On 02 November, the Minister closed FU16 on orders from the EU Commission who based their decision on the recommendation of the Sea-Fisheries Protection Authority (SFPA), who had calculated, using a new method, that Irish fishing vessels had caught in the region of 145% of the total allowable catch (TAC) for 2017.
This information was furnished to the Commission on 17 October when the SFPA calculated that 1991 tonnes of nephrops had been caught by Irish vessels. However, the fishing industry using the logbook system argued that only 733 tonnes had been fished leaving approximately 600 tonnes to be caught.
The SFPA had decided that Irish fishing vessels were under-reporting their catches of nephrops in FU16 using their electronic logs and believed that in order to comply with its statutory and European law duty to transmit accurate information, they had to employ another methodology in order to arrive at a more accurate estimate to the actual amount of nephrops being fished in the relevant area.
The new method used by the SFPA relies on calculating the catches based on the actual time spent by a fishing vessel at sea rather than what has been logged electronically by the skipper.
There are huge flaws in this system of calculating catches and this was exacerbated by the lead up to the November closure.
Previously, the fishery was originally closed at the start of August 2017 on the recommendations of the Quota Management Advisory Committee (QMAC) in July. The QMAC recommended a temporary closure due to poor market prices at that time. This recommendation was made with the view that fishing the resume and September/October when prices would recover. Minister Creed then extended the ban in October on recommendations for it by the SFPA and the EU Commission.
This meant that under the new SFPA method, the Irish nephrops fleet had caught nearly a time-and-a-half of the annual quota in the first seven month of 2017.
The closure of the fishery hit the fleet hard with an estimated €6 million loss in earnings causing great hardships and putting the livelihood of Irish fishing families in jeopardy.
A challenge to the SFPA’s method of assessing catches was brought to the High Court by Pat Fitzpatrick who fishes out of Ros a Mhíl, Co Galway and Micheal J Flannery of Dingle, Co Kerry and the case against the Minister and the SFPA was held in January 2018.
In their pleadings, the plaintiffs said they were paying mortgages on their vessels and employing 12 to 14 crewmen between them and at any time up to 50 people onshore. They pleaded that the decision to close the fishery was causing them serious hardship and might even put them out of business..
The High Court dismissed their action but the plaintiffs appealed, arguing among other things, that the new method used by the SFPA was not in line with a 2009 EU regulation system for ensuring compliance with the rules of the common fisheries policy (CFP) and was therefore in breach of Ireland’s obligations under EU law. They also sought a reference of the matter to the CJEU.
In the appeal, the Minister opposed the reference and also argued the two fishermen’s application should have been brought in the names of their companies and they did therefore not have locus standi (sufficient interest) to take it.
The SFPA also said a reference was not required as the law on the matter was clear enough.
In delivering her judgement, Ms Justice Ní Raifeartaigh against the plaintiffs she said that the action had failed due to the fact that the plaintiffs, Fitzpatrick and Flannery did not have locus standi in the proceedings as per the Minister’s defence.
This was based on Order 84, rule 20(4) of the Rules of the Superior Court, which meant it was only the vessel owners who had sufficient interest in bringing proceedings against the Minister. Fitzpatrick and Flannery were deemed not to be the vessel owners as the fishing licences for their boats, Shauna Ann and Cú na Mara respectively, were owned by corporate entities. They were the beneficial owners of the vessels but the names on the fishing licences were in that of their companies.
The plaintiffs were given leave to appeal the High Court decision over locus standi to the Supreme Court.
On the issue of locus standi, Mr Justice William McKechnie (of the Supreme Court), on behalf of the court, said it did not follow simply because the men’s companies could have taken the case, that they themselves do not have standing. He was satisfied both men satisfied the test as to standing under court rules.
In relation to a reference to the CJEU, he said the major issue of EU law which arose here is whether the SFPA can lawfully utilise other data flows such as fishing licences, fishing authorisations, vessel monitoring system and other material when calculating the figures for catches.
There should be no disparity between one state and another in relation to ensuring compliance with the 2009 regulation, he said. In his view the law was not clear enough (acte clair) and the interpretive issues raised in this case were central to it.
The judge therefore proposed referring to the CJEU two questions on the matter.
The first relates to whether a fishing authority is limited to notifying the data on a catch in a particular fishing ground logged by fishermen/women under EU regulation, when that authority has good reason to believe that data is grossly unreliable, or is it entitled to employ reasonable scientifically valid methods to achieve more accurate figures.
The second asks, where an authority is so satisfied based on reasonable grounds, can it lawfully utilise other data flows such as fishing licences, fishing authorisations, vessel monitoring system data, landing declarations, sales notes and transport documents. (Irish Times)
The ruling from the CJEU on the legality of the SFPA’s method of estimating catches could bring about the conformity of recording catches across all fisheries protection authorities across all EU Member States which could be bad news for the EU fleet.
If the SFPA method of calculating catches is passed by the Court then it would open the door for all Member States to use the controversial system which could deny fishers everywhere of hundreds of millions of euros in income annually.