The Court of Appeal found that a 2019 policy restricting larger fishing vessels from trawling inside Ireland’s six-nautical-mile coastal zone should have been notified under EU fisheries rules before it applied to Northern Irish vessels. The court did not decide what remedy should follow, reserving that issue for further submissions.
Tom Kennedy and Neil Minihane challenged the directive, which required licences for vessels over 18 metres to prohibit trawling or seine-net fishing in the zone from January 2020. A temporary exception allowed sprat fishing, subject to limits, until the end of 2021. The fishermen said the restrictions threatened their businesses and challenged the measure on several legal grounds.
The High Court had declared the directive void because the Minister’s consultation process was unfair. The Minister appealed, while the fishermen cross-appealed the rejection of their other grounds. The Court of Appeal overturned the High Court’s conclusion on consultation: it held that a reasonable reader would not understand the consultation paper to promise a second round before the directive was adopted.
However, the appeal court held that the directive was a measure for the conservation of fish stocks under Article 19 of the EU Common Fisheries Regulation and also fell within Article 20. Article 19 required other member states to be informed, but the court said the failure to notify under that article did not invalidate the measure.
Article 20 required prior consultation where a measure could affect another member state’s fishing vessels. Northern Irish vessels became entitled to fish in the Irish zone under legislation enacted in 2019, which also required them to comply with the directive. The court said the State could not avoid the consultation obligation because the directive and the extension of access rights came through separate legal measures. No consultation took place, so the directive was not lawfully adopted in that respect.
The court rejected the fishermen’s other grounds. It found the directive was within the Minister’s statutory powers, the reasons were legally adequate, and the measure had not been shown to be irrational or an unjustified interference with constitutional rights. It also found the directive was not discriminatory.
The court left open whether the part affecting Northern Irish vessels could be severed from the rest and what relief, if any, should be granted. It directed that the parties make further submissions on those questions, including the effect of the United Kingdom’s departure from the EU. Costs were also left undecided.