Mr Justice Gerard Hogan, as a member of a three-judge CoA, said if the final decision, which related to the implementation of 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 CoA 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 CoA 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 Protection Authority (SFPA). The SFPA ensures compliance with the EU Common Fisheries Policy (CFP).
The High Court found that a derogation allowing the weighing to take place in the factory did not impact on the power of the SFPA to also require monitored weighing on landing.
The court heard fish are weighed to ensure compliance with the CFP 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 The derogation was rescinded in 2021.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 SFPA announced a change in practice amid concerns expressed by the EU Commission about how the derogation was operating. As a result, the SFPA 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 SFPA 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 were 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 SFPA 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” which had been used to carry out the inspection on October 12, 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 SFPA opposed the challenge. It argued, among other things, that where the SFPA 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 co-existed with the derogation, albeit that the SFPA did not in practice exercise that power prior to 2020.
She also said no infirmity had been established with the selection of the Atlantic Challenge for monitored weighing on landing.