The High Court has ruled that the Minister for Agriculture, Food and the Marine exceeded the authority available under the European Communities Acts when making regulations that created a system for assigning penalty points to Irish fishing licences. The court invited the parties to make submissions on the order that should follow; it did not specify that order in the judgment.
Mr Justice O’Connor delivered the judgment on 15 January 2016 in a constitutional challenge brought by Patrick O’Sullivan, the licence holder for the fishing vessel Tea Rose, and his brother Cathal O’Sullivan, its master. The defendants were the Sea-Fisheries Protection Authority (SFPA), the Minister, Ireland and the Attorney General.
The challenge concerned the European Union (Common Fisheries Policy) (Point System) Regulations 2014. Those regulations allowed the SFPA to determine whether a serious infringement had occurred and proposed points against a vessel’s licence. The licence holder could appeal to an independent appeals officer, but the appeal grounds had to establish on the balance of probabilities that the infringement did not occur or did not involve the vessel. The officer could not change the number of points, and a further High Court appeal was limited to a point of law.
The case followed an inspection of the Tea Rose at Castletownbere, County Cork, on 8 April 2015. The master was charged in the Bantry District Court area with failing to correctly record the vessel’s hake, cod, haddock and pollock catch. That prosecution was separate from the administrative penalty-points process. At the time of the High Court judgment, the SFPA had not issued an inspection report or notified the licence holder of a proposal to assign points.
The plaintiffs argued that the regulations made policy choices reserved to the Oireachtas, including who would decide whether an infringement occurred, the burden placed on a licence holder on appeal, and limits on review by the courts. The defendants relied on EU fisheries rules requiring an effective point system for serious infringements.
The judge accepted that the EU regulations established the policy for a licence-based points system and allowed the Minister to designate the SFPA as the competent authority. But he found that they did not require Ireland to abandon established forms of independent adjudication or access to the courts. The combined features of the domestic scheme—including the SFPA’s roles, the appeal limits and the burden on licence holders—went beyond principles and policies set out in the EU rules. The general aim of making sanctions effective and dissuasive did not justify those choices through secondary legislation, the judgment said.
The court therefore concluded that the Minister had failed to identify a sufficient basis in the EU rules for the novel method of determining serious infringements. The judgment did not determine whether the Tea Rose’s catch had been under-recorded, whether a serious infringement occurred, or whether penalty points should be assigned. It left the consequential order for further submissions.