Supporting Documents:
13-19 Resp Notice. web.pdf13-19 Resp Notice.web.pdf13-19 AFL.web.pdf

THE SUPREME COURT

BETWEEN

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court grants leave to appeal to this Court, pursuant to Article 34.5.3.

REASONS GIVEN

ORDER SOUGHT TO BE APPEALED

COURT: High Court

DATE OF JUDGMENT OR RULING: 30th October, 2018

DATE OF ORDER: 18th December, 2018

DATE OF PERFECTION OF ORDER: 21st December, 2018

Introduction

1. This is an application for leave for ‘leapfrog’ appeal from a judgment of the High Court (Ní Raifeartaigh J.), dated the 30th October, 2018 ([2018] IEHC 772). The order of the High Court was made on the 18th December, 2018, and was perfected on the 21st December, 2018.

General Considerations

2. The principles applied in deciding whether or not to grant leave to appeal having regard to the criteria incorporated into the Constitution under the 33rd Amendment have been considered in many determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. Accordingly, it is unnecessary to revisit the new constitutional architecture for the purpose of this determination. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v. Director of Public Prosecutions [2017] IESCDET 115.

3. The application for leave filed, and the respondents’ notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Background

4. This case concerns the application of Council Regulation (EC) No. 1224/2009 (“the Control Regulation”). The Regulation sets down rules at Article 14 regarding the completion and submission of the fishing logbook, at Article 15 regarding the electronic completion and transmission of fishing logbook data, and at Article 33 regarding the recording of catches and fishing effort.

5. In brief, Ní Raifeartaigh J. held that the introduction by the Sea Fisheries Protection Authority (“the Authority”) of the “time sent” methodology for calculating the quantities of the fishers’ catch was lawful, and therefore was not at variance from the provisions of the Control Regulation (para. 62). Consequently, she determined that the Minister:

“did not act ultra vires in accepting that information furnished by the Authority and making the decision, based upon that information, to issue the Fisheries Managements Notices in question” (para. 63).

6. In essence, the applicants now seek to argue that the decision of the trial judge was erroneous, accepting as it did the legality of the time spent methodology.

The Applicants’ Case

A. General Public Importance

7. In respect of fishing outtake, the applicants state that the Control Regulation provides at Articles 14, 15 and 33 for a system of data recording, and reporting of that information to the European Commission (“the Commission”), for control purposes. This includes a fishing logbook which records a fisher’s catch. It is said that both the fisher and the national control authority must ensure that the details are accurate.

8. The applicants contend that, in respect of the fishing area of Functional Unit 16 (“FU16”), the Authority replaced the logbook system with its own scheme, calculating the quantity of fish caught in FU16 as a function of time spent there. It is argued that the Minister for Agriculture, Food and the Marine (“the Minister”) reported these figures to the Commission rather than taking the correct course of rejecting them as having been collected using a method not provided for by the Control Regulation.

9. The applicants argue that this new methodology of calculating fishing outtake is not in line with the Control Regulation and is therefore in breach of Ireland’s obligations under European Union (“EU”) law. It is said that this matter has not yet been determined, either by our domestic courts or by the Court of Justice of the European Union (“CJEU”). They claim that this new calculation method infringes their rights, and those of all fishers who fish a similar quota, under the Control Regulation. It is maintained that the new system of calculation has the potential to be employed across the fishing sector in circumstances where the Authority can apparently implement this methodology. Therefore, it is said, this case impacts the broader fishing sector and raises an issue of general public importance. It is said that the introduction of this new methodology diverges from the practice in other EU member states.

B. Reference to the CJEU

10. The applicants assert that this case involves the proper interpretation of an EU regulation and that, should leave to appeal be granted, a reference to the CJEU will be required. It is said that the interests of justice require a speedy determination of these issues given the delay associated with a reference to the Court of Justice.

11. The questions which the applicants say should be referred may be summarised as follows:

a) Whether a body such as the Authority, under Article 5(5) of the Control Regulation, is entitled to disregard the data recorded and transmitted under Articles 14, 15 and 33, supplanting this with data generated through its own methodology for calculating fish outtake for the relevant area?

b) Whether the terms “data” and “information” in Articles 14, 15 and 33 include information that a body such as the Authority considers more accurate, despite not complying with the Control Regulation?

c) Whether a member state is entitled to, or obliged to, accept the methodology of a body such as the Authority when exercising its functions under the Control Regulation, particularly when reporting the data to the Commission?

12. Turning to the “exceptional circumstances” requirement which must be met for a leapfrog appeal to be granted, the applicants repeat the above points, highlighting that the question in issue has not yet been determined domestically or at EU level. They add that the fisheries sector is important to the Irish economy, and that the need for certainty in the control regime meets the exceptional circumstances threshold.

D. Priority Hearing

13. Relying on the points noted at para. 9 above as to the alleged far-reaching consequences of these proceedings, it is contended that, as a reference to the CJEU will be necessary should the application for leave to appeal be successful, the associated delays justify a priority hearing.

The Respondents’ Case

A. General Public Importance

14. Application for leave to appeal is not opposed by the respondents, but clarifications are offered.

15. It is said that the accuracy of the recorded catch is the responsibility of the fishers alone, and that the Authority must merely detect and deter incorrect recordings.

16. The respondents claim that it emerged in 2017 that the applicants’ logbooks were “grossly unreliable”, and that in such circumstances the Authority had an obligation not to report those particular figures to the Minister. It is claimed that this duty was discharged by the creation of, and the reporting of figures derived from, the “time spent” methodology.

17. The respondents say that the actions taken did not infringe the Control Regulation, the State’s EU law obligations or the rights of fishers, and that the approach taken does not diverge from that of other member states.

B. Reference to the CJEU

18. The respondents contend that no reference to the CJEU is necessary. However, they assert that, in the alternative, the questions drafted by the applicants are inappropriate, as they are premised on the Authority having failed to apply the Control Regulation. It is argued that the true question to be asked is whether, when the fishers’ logbook figures are reasonably suspected to be unreliable, the Authority is entitled to employ “reasonable, scientifically valid methods to determine and report the most accurate outtake figures”.

Discussion

19. Both sides to these proceedings are in agreement that issues of general public importance are raised. For the reasons given by the applicants at para. 9 above, this Court determines that leave to appeal should be granted on the basis of general public importance.

20. Turning to the exceptional circumstances requirement, as noted at para. 2 above, the determination of this Court in Wansboro set out some of the factors to be considered. In the present proceedings, weight is attributed to the factors of the urgency with which a final determination is required, the impact the decision may have on other cases, and the fact that, given the clarity as to which matters are in issue, an intermediate appeal to the Court of Appeal is unlikely to narrow the contested issues. This Court is of the view that, it is arguable that the new methodology could be extended to waters beyond just FU16, and that the legality of the time spent methodology should therefore be resolved. In this regard, the Court also considers the effect the methodology might have on the business of fishers in FU16, and the Irish economy more broadly.

Priority Hearing and Reference to the Court of Justice

21. It is necessary that a preliminary matter be addressed in case management; that is, whether it is appropriate to have an early preliminary hearing by the Court to consider making a reference to the Court of Justice, or whether a priority early hearing of the whole appeal should be heard? In either circumstance, the Court will at that hearing have to consider whether there is sufficient evidence already available for a reference to the CJEU to be made under Article 267 of the Treaty on the Functioning of the European Union, and the criteria set out in Srl CILFIT and Anor. v. Ministry of Health and Ors. (Case 283/81) [1982] ECR I-03415.

Decision

22. For the above reasons, leave to appeal to this Court is granted.

And it is hereby so ordered accordingly.