The Supreme Court has decided to refer questions to the Court of Justice of the European Union (CJEU) in a dispute over how Irish authorities calculated Nephrops catches in the Porcupine Bank’s Functional Area 16 (FU16) in 2017. It did not decide whether the “time spent” method was lawful.
The appeal was brought by Pat Fitzpatrick and Michael Flannery against the Minister for Agriculture, Food and the Marine and the Sea Fisheries Protection Authority (SFPA). They challenged the SFPA’s estimate that 1,991 tonnes of Nephrops had been caught in FU16 by the end of July 2017. The estimate used the share of a vessel’s fishing time spent in FU16 to allocate its total catch to that area. Logbooks recorded 733 tonnes for the same period.
The SFPA considered the logbook figures unreliable and reported its estimate to the Minister. The Minister then issued notices setting the FU16 quota at zero for subsequent months of 2017, and the area was closed to fishing. The fishermen argued that the EU control rules did not allow the SFPA to replace reported catch figures with an estimate produced using its own method. The High Court rejected their challenge in 2018.
In the Supreme Court, the Minister cross-appealed the High Court’s decision that the fishermen had sufficient interest to bring the case, arguing that companies associated with the vessels should have brought it. The Supreme Court rejected that argument. It found that the closure affected the fishermen’s fishing opportunities and businesses, and that both had sufficient interest to challenge the decisions.
The court then considered whether it could decide the EU-law questions without a preliminary ruling. It concluded that the meaning of “data” and “information” in the EU Control Regulation, and the SFPA’s authority to use other information when logbook figures appear unreliable, were central to the appeal. The court was not satisfied that the answer was so clear that no reasonable doubt remained.
The court therefore decided that a reference was required and that the case was at a suitable stage for one. It proposed asking whether the SFPA, when reporting catch figures to the European Commission, is limited to logbook data where it has good reason to consider those figures grossly unreliable, or may use reasonable, scientifically valid methods to produce more accurate estimates. A second proposed question asks whether it may use other sources, including vessel-monitoring data, landing declarations, sales notes and transport documents.
The questions were proposals subject to the parties’ observations on their wording. The Supreme Court’s judgment determined standing and the need and stage for a reference; the legality of the method remained unresolved pending the CJEU’s interpretation.