The Court of Appeal has decided to refer to Europe a dispute between the sea fisheries watchdog and fishermen over a requirement that some catches in Killybegs, Co Donegal, should take place “on landing” and not after they had been transported a kilometre to a processing factory.
Mr Justice Gerard Hogan, sitting as a member of a three-judge court, said if the final decision, which related to the implementation of European Union (EU) rules, was left to the Irish court he would have rejected the appeal brought over one such inspection at the centre of the dispute.
However, he said, he had nevertheless concluded that the Court of Appeal should make a reference on this point to the Court of Justice of the EU under Article 267 on the Treaty on the Functioning of the EU which deals with the interpretation of treaties and the validity and interpretation of acts of the institutions, bodies, offices or agencies of the EU.
A final decision of the Court of Appeal would be adjourned pending the outcome of the reference, he said.
Last year, the High Court found against the master of a vessel at the centre of one such weighing dispute along with two associated companies, and the Killybegs Fishermen’s Organisation who had brought a challenge over the matter against the Sea Fisheries Authority (SFA). The SFA ensures compliance with the EU Common Fisheries Policy.
The High Court found that a derogation allowing the weighing to take place in the factory did not impact on the power of the SFA to also require monitored weighing on landing.
The court heard that fish are weighed to ensure compliance with the Common Fisheries Policy but Ireland had a derogation since 2012 which permitted weighing at an authorised premises after the fish was transported from the quayside. The derogation was rescinded in 2021.
In 2019, the SFA announced a change in practice amid concerns expressed by the EU Commission about how the derogation was operating.
As a result, the SFA announced that a percentage of inspections would be carried out on landing.
In October 2020, the MFV Atlantic Challenge was selected for inspection and boarded by fisheries officers on its arrival at Killybegs where a pier-side weighing took place “under protest” from the vessel’s master Noel McDowell and Killybegs Fishing Enterprises Ltd, which holds the Atlantic Challenge’s sea fishing licence.
Fishermen had argued that post-transport weighing was the best way to preserve the quality, freshness and value of the fish.
The SFA argued it was possible to mitigate these effects when weighing does not take place at a factory premises and it installed equipment at Killybegs pier for this purpose.
The figures sent in when the fish was later weighed in the factory showed a differential of some 11-12pc between the weight for mackerel recorded from the pier weighbridge and on the flow scales at the factory.
The SFA notified Mr McDowell of the commission of two “suspected offences” relating to the landing declaration.
In February 2021, Mr McDowell, Killybegs Fishing Enterprise, Killybegs Seafoods and the Killybegs Fishermen’s Organisation Ltd, brought a High Court challenge seeking to quash the “notice to weigh on landing” notice which had been used to carry out the inspection on October 12th, 2020.
The fishermen/factory applicants argued the Atlantic Challenge was unlawfully selected for monitored weighing on landing as at that time weighing ought properly to have occurred at the factory premises under the terms of the derogation.
They also contended that the system of weighing using the State-owned weighbridge at Killybegs Port was not fit for purpose and the factory weighing scales were more accurate and less damaging to the fish.
The SFA opposed the challenge. It argued, among other things, that where the SFA requires weighing on landing, the derogation from the general rules did not apply.
The High Court’s Ms Justice Siobhán Phelan said the power to require a monitored weighing on landing was not a new power and it had coexisted with the derogation albeit that the SFA did not in practice exercise that power before 2020.
She also said there was no infirmity had been established with the selection of the Atlantic Challenge for monitored weighing on landing.