The High Court has decided to refer a challenge to the EU’s 2020 fishing limits to the Court of Justice of the European Union, saying it had serious doubts about whether the limits complied with EU fisheries law. It has not ruled that the regulation is invalid, and the wording of the question for the European court remains to be settled.
Friends of the Irish Environment CLG challenged Council Regulation 2020/123, which set total allowable catches for fish stocks in 2020, and related monthly fisheries management notices issued by the Minister for Agriculture, Food and the Marine. The group argued that the regulation breached the Common Fisheries Policy by setting catch limits above the scientific advice from the International Council for the Exploration of the Seas (ICES).
The case focused on advice that catches should be zero in 2020 to achieve maximum sustainable yield for cod west of Scotland and in the Celtic Sea, whiting in the Irish Sea, and plaice in the southern Celtic Sea. The regulation allowed catches of 1,279 tonnes, 805 tonnes, 721 tonnes and 67 tonnes respectively. The State accepted that these limits exceeded the ICES single-stock advice.
The State argued that the limits should be considered within the wider fisheries framework, including the difficulties of mixed fisheries, unavoidable by-catches, the risk of fisheries closing prematurely and economic effects on coastal communities. It also argued that the challenge was moot because the 2020 regulation and the monthly notices had expired.
The High Court agreed that the challenge concerned measures that had expired, but allowed the proceedings to continue. It said short-lived measures could otherwise escape review, that similar issues were likely to arise again, and that the case raised matters of public importance for fish conservation and the fishing industry.
On the legal question, the court found that the ICES advice was the best available scientific advice for the stocks at issue. It also concluded that Article 2(2) of the Common Fisheries Policy imposed a binding obligation to achieve maximum sustainable yield for all stocks by 2020 at the latest, and did not exempt by-catches. Those conclusions led the court to have serious doubts about the validity of the 2020 regulation and to decide that a reference to the Court of Justice was required.
The court did not decide whether the regulation was valid or determine the challenge to the Minister’s notices. It said the notices’ validity depended substantially on the validity of the regulation. The parties were given four weeks to agree a question for referral or submit proposed wording. The court may hold another hearing before settling the question.