The Supreme Court upheld a High Court declaration that the European Union (Common Fisheries Policy) (Point System) Regulations 2014 were invalid, but on narrower grounds. It found the regulations’ procedures did not provide fair procedures for licence holders facing penalty points that could lead to suspension or loss of a fishing licence.
The direct appeal arose from a challenge by Patrick O’Sullivan and Cathal O’Sullivan, holders of the fishing licence for the vessel Tea Rose. After the vessel was inspected at Castletownbere in April 2015, its master was charged with under-recording catches of hake, cod, haddock and pollock. The charge was pending; the Supreme Court made no finding that the alleged infringement occurred.
The licence holders sought an undertaking that the points process would not begin before the criminal proceedings concluded. The Sea Fisheries Protection Authority said it had no discretion to stop the process once an infringement was reported. The 2014 rules allowed a licence holder 21 days to appeal a proposed points assignment. On appeal, the holder had to establish specified grounds, including that the incident did not occur or was not serious. If the holder did not appeal, or failed to establish a ground, points had to be applied.
The High Court had ruled the regulations invalid under Article 15.2.1 of the Constitution, which reserves law-making power to the Oireachtas. Before the appeal, the 2014 rules had been repealed and replaced by 2016 regulations. The Supreme Court considered the appeal despite finding it technically moot as between the parties: the outcome could no longer change their legal position on the incident, though the State had a wider interest in resolving the legal issues.
The court rejected the argument that the Minister could not establish the points process through regulations under the European Communities Act 1972. It held that European Union rules had already specified the core features and consequences of the points system, leaving Ireland to establish a process for assigning points. That choice did not amount to a policy decision reserved to the Oireachtas.
However, the court found the 2014 process unfair as a whole. The licence holder had to initiate the only substantive hearing and carry the burden of proof, even though points were consequential and could affect the ability to earn a livelihood. The court concluded that these combined features crossed the boundary of fair procedures. It upheld the declaration of invalidity on that basis, rather than under Article 15.2.1, and otherwise dismissed the appeal. The judgment did not determine the validity of the replacement 2016 regulations.