Unitymark Ltd., R (on the application of) v Department of Environment, Food & Rural Affairs

In this case the claimants are a company based in this country engaged in the fishing industry in its surrounding waters and an organisation which represents similar such fisherman. The claimants seek judicial review of the Sea Fishing (Restriction on Days at Sea) Order 2003 (“The Order”) in so far as it adversely affects the first claimant and companies similar to it represented by the second claimants. The first claimant operates fishing boats, primarily, in the North Sea equipped with beam trawls. They intend to catch flatfish, primarily sole and plaice. They use fishing gear described as “open gear” beam trawls. That technique is adapted to fishing for flatfish in areas where the seabed is smooth and sandy as opposed to rocky. It is to be contrasted with “chain mat” beam trawls operated by some 20% of the European beam trawl fleet which are also directed at flat fish. The fishing boat tows usually two trawl nets attached to the ends of beams jutting out from the sides of the vessel. These trawls are designed to fish close to, but not touch the seabed. “Chain mat trawls” are operated similarly but, as their name implies, have chains on their base designed to scrape along a rocky seabed so disturbing fish which fall into the following net.

There is currently a crisis in the European fishing industry resulting from the collapse of stocks of cod in the North Sea, the Skagerrak, the Kattegat, and the Irish Sea. Fishing in European waters is controlled by the Council of Ministers of the European Union and by the European Commission. The Council makes regulations and the Commission decisions carrying those regulations into effect which are then delegated to the governments of Member States to impose on their national fishing industries. The Order which was promoted by the Secretary of State for Environment Food and Rural Affairs (the defendant) results from Council Regulation (EC) No. 2341/2002 promulgated by the Council of the European Union on the 20^th December 2002 (“the Regulation”). The amounts of fish which fisherman from countries in the European Union are entitled to catch in European waters are controlled by the imposition of quotas prescribing maximum catches for each type of fish. These quotas are apportioned among member states who in turn apportion them among their fisherman.

The quotas for the catching of cod have recently been substantially reduced. It seems, however, that the Commission and the Council have taken the view that an alternative method of limiting catches, more easily policed, was necessary to conserve the stocks of cod by imposing an additional restriction on the amount of days which any registered fishing boat larger than ten metres in length could spend away from port fishing. The Regulation seeks to impose such restrictions.

It is the claimant’s case that in so far as the Order carries into effect the Regulation and so restricts the type of fishing which they wish to pursue, its effect on their business is out of proportion to the conservation value of restricting their days at sea because their method of fishing, being directed at catching flat fish, catches cod as a “by-catch” in relatively small numbers, a minute proportion of the overall annual catch of cod. They also contend that the way in which the Regulation restricts fishing boats’ days at sea imposes a much more burdensome restriction on their type of fishing, particularly having regard to its minimal overall impact on cod stocks, which amounts to discrimination against them in favour of other classes of fisherman, in particular, those operating fishing boats whose primary target is cod. If these complaints are made out the Regulation would be pro-tanto unlawful under European law as would the Order made pursuant to it. Since the first Claimant sells its fish in Holland or Belgium a claim that the restrictions operate to restrict the free movement of goods contrary to Articles 28 and 29 is made. Since it was accepted that this adds nothing to the other grounds of claim this was not pressed.

So far as material to this judgment the Regulation provides as follows:-

“Having regard to the Treaty establishing the European Community…

Whereas:

(1)

Article 4 of Regulation (EEC) No. 3760/92 requires the Council to adopt in the light of available scientific advice and, in particular, of the report prepared by the Scientific, Technical and Economic Committee for Fisheries, the measures necessary to ensure the rational and responsible exploitation of resources on a sustainable basis….

(12)

It is necessary to limit in this Regulation fishing effort for cod in the North Sea, Skagerrak, Kattegat and the West of Scotland. …

Article 10

For the management of cod stocks in Kattegat, Skagerrak, North Sea and to the West of Scotland, the effort limitations and associated conditions laid down in Annex XVII shall apply…

Annex XVII

Fishing effort and additional conditions for monitoring, inspection and surveillance in the context of recovery of certain cod stocks

Fishing Effort

1.

From 1^stFebruary 2003 to 31^stDecember 2003 the conditions laid down in this Annex shall apply to Community fishing vessels of length overall equal to or greater than 10 metres….”

The Regulation then describes the areas of sea to which it applies and how a “day” for the purposes of the Regulation is to be defined. It then continues:-

“4

For the purposes of this Annex, the following definitions of fishing gears shall apply:

(a)

demersal trawls, seines or similar towed gears of mesh size equal to or greater than 100mm except beam trawls; [cod fishermen use this gear]

(b)

beam trawls of mesh size equal to or greater than 80mm [this describes the Claimant’s gear but also gear operated by “chain mat” beam trawlers]

(c)

static demersal nets including gill nets trammel nets and tangle nets;

(d)

demersal long lines;

(e)

demersal trawls, seines or similar towed gears of mesh size between 70mm and 99mmexcept beam trawls [Nephrops fisherman use this gear]

(f)

demersal trawls seines or similar towed gears of mesh size between 16mm and 31mm except beam trawls.

5

Each Member State shall ensure that within each of the areas specified in paragraph 2 individual fishing vessels flying its flag or registered in the Community when carrying on board any of the fishing gears defined in paragraph 4 shall be absent from port for no more than the number of days specified in paragraph 6.”

Paragraph 6 then specifies the number of days in each calendar month in which a vessel may be absent from port while carrying on board in the North Sea any of the fishing gears defined in paragraph 4. In respect of those carrying fishing gear described in 4(a), i.e. cod fishermen the number of days is 9. In respect of those carrying gear defined in clause 4(b), i.e. Beam trawlers the number of days is 15 and in respect of those boats carrying gear defined in paragraph 4(e) i.e. Nephrops fisherman the number of days is 25.

Paragraph 6 then continues:-

“(b)

Additional days to compensate for steaming time between home ports and fishing grounds and to compensate for adjustment to the newly installed effort management scheme may be allocated to the Member States by the Commission.

(c)

An additional number of days on which a vessel may be absent from port while carrying on board any of the gears defined in paragraph 4a may be provisionally allocated to Member States by the Commission on the basis of the achieved results or the expected results of de-commissioning programs in 2002 and 2003 for vessels affected by the provisions of this Annex.

(d)

Member States benefiting from the allocation under (c) shall report to the Commission before the end of March, May, July, September and November respectively on the progress made in implementing their de-commissioning programmes. On the basis of these reports the Commission may amend the number of days defined in (c).”

Nephrops fisherman fish for shrimps and prawns.

Paragraph 3 of the Order which came into force on the 8^th February 2003 makes it an offence for a person in charge of a relevant British fishing boat, to be absent from port in excess of the numbers of days permitted to such boat by Annex XVII.

On the 14^th March 2003 the European Commission published a decision (Commission Decision 2003/185 of 14^th March 2003, OJ 2003 L 71, p28) (“the Decision”) which provided as follows:-

“Whereas:

(1)

Paragraph 6(a) of Annex XVII to Regulation (EC) No 2341/2002 specifies the number of days on which certain Community fishing vessels may be absent from port in the geographical areas defined in paragraph 2 of that Annex from 1 February 2003 to 31 December 2003.

(2)

Paragraph 6(b) of Annex XVII… provides the possibility for the Commission to allocate additional days of absence from port to Member States for these vessels to compensate for steaming time between home ports and fishing grounds and for adjustment to the newly-installed effort management scheme.

(3)

The days provided for in paragraph 6(a) of Annex XVII… are sufficient to allow vessels using gears other than those defined in paragraph 4(a) of that Annex, the necessary time to catch the quantities of cod which they are entitled to fish during 2003.

(4)

Vessels using gears defined in paragraph 4(a) of Annex XVII… traditionally carry on board different kinds of gears. According to paragraph 7 of Annex XVII… this practice is not allowed for fishing vessels subject to that Annex. This rule results in a particular need for those vessels to receive additional days for adjustment to the new scheme, in order for to go [sic] back to port to change gears when necessary. Two additional days is [sic] considered as appropriate for this purpose.

(5)

…

(6)

Paragraph 6(c) of Annex XVII…provides the possibility for the Commission to allocate additional days of absence from port to Member States for vessels carrying on board any of the gears defined in paragraph 4(a) of Annex XVII… in recognition of the achieved results or expected results of de-commissioning of fishing vessels in 2002 and 2003.

(7)

Denmark and United Kingdom have submitted data on de-commissioning of such fishing vessels in 2002 and a description of their intentions to de-commission such fishing vessels in 2003.

(8)

A Commission decision is necessary to allocate additional days at sea for fishing vessels carrying on board the fishing gears defined in paragraph 4(a) …

HAS ADOPTED THIS DECISION:

ARTICLE 1

In accordance with paragraph 6(b) of Annex XVII… Member States may allocate a maximum of two additional days per calendar month on which vessels may be absent from port while carrying on board any of the fishing gears defined in paragraph 4(a) of that annex.

ARTICLE 2

The maximum number of additional days which may be allocated in each calendar month in accordance with paragraph 6(c) of Annex XVII… shall be as follows:

(a)

Denmark, two days.

(b)

United Kingdom, four days.

ARTICLE 3

The number of additional days allocated under Articles 1 and 2 may be cumulated.”

By Council Regulation (EC) No 671/2003 published on the 10^th April 2003 the Council amended Annex XVII of the Regulation. The material amendments for the purposes of this judgment are to paragraph 6(c) of Annex XVII by making the reference to paragraph 4 to the whole of that paragraph by removing the “a” after “paragraph 4”. The effect of this amendment was to make it possible that further days should be made available to beam trawlers where relevant fishing boats, not necessarily confined to beam trawlers, had been de-commissioned in the UK. It will be remembered that paragraph (3) and Article 2 of the Commission decision of the 14^th March had increased the days allowable by paragraph 6(c) of Annex XVII, by 4 days, in respect of vessels within paragraph 4(a) of the Regulation i.e. cod boats and similar boats but not beam trawlers.

The amendment added a new paragraph 6(e) as follows:-

“Notwithstanding the conditions laid down in paragraph (a), a Member State may permit any of its vessels fishing with demersal trawls, seines or similar towed gears of mesh size equal to or greater than 120mm to spend no more than 16 days absent from port provided that:

(1)

the Member State has previously notified the Commission of its intention to do so: and

(2)

the Member State has verified from the track record of that vessel that less than 5% of the landings in live weight by that vessel during 2002 were comprised of cod: and

(3)

the Member State verifies that the track record for that vessel for the month terminating two months prior to the start of the current month confirms that its landings in that previous month comprised no more than 5% of cod.

Vessels benefiting from the provisions laid down in this paragraph shall not be eligible for additional days allocated under paragraph (b).”

The Sea Fishing (Restriction on Days at Sea) No (2) Order 2003 which entered into force on the 7^th July 2003 replaced the Order but simply provided that failure to comply with the Regulation as amended constituted an offence.

On the 23^rd June 2003 the fisheries department of DEFRA sent to the owners of all fishing vessels longer than 10 metres a revised version of guidance notes explaining the EU scheme which revised guidance notes were circulated in January 2003. At paragraph 2.4 of the notes it is stated that the UK is proposing to exercise the powers given to it by the Regulation over two monthly as opposed to monthly periods. It is accepted that this paragraph demonstrates that fishing boats using standard cod fishing gear would be entitled to 15 days a month. If using nets of more than 120mm squares and catching cod at a rate of less than 5% of their total catch they would be entitled to a further 5 days at sea making 20 days per month in all. Nephrops fisherman would be entitled to 25 days per month. Beam trawl fishermen ,without differentiating between those operating open gear trawls and those operating chain mat trawls, would be entitled to 16 days at sea per month.

The evidence adduced by the claimants consisted of three witness statements by Richard Hards the managing director of the first claimant, the witness statement of Nicholas Wren, the secretary of the second claimant and David Piers Cox, chairman of the North Sea Fisherman’s Organisation Ltd, a fish producer organisation recognised under United Kingdom and European legislation. The evidence of the defendant is to be found in the two witness statements of Simon Waterfield head of Branch A of Fisheries 1 Division, a department of DEFRA. These witness statements and their supporting exhibits demonstrate that there is little if any conflict between the parties as to the underlying facts.

It is accepted that open gear beam trawlers have by far the smallest “by-catch” of cod of any of the methods commonly used to fish in the North Sea by trawlers longer than 10 metres. In particular the by-catch is substantially less than the catch by cod boats, as you would expect, but it is also substantially less than the by-catch of Nephrops boats. As between open gear and chain mat beam trawlers the by-catch of open gear beam trawlers is considerably less than that of chain mat trawlers. In the course of argument a table No. 3.5.1.3 attached to the report of the ICES advisory committee on fishery management dated December 2002 was produced by the defendant. This schedule is the product of returns from fishing boat log books (and therefore not including the less than 10 metre fleet) averaged over the years 1999 to 2001. This shows an average cod by-catch for all beam trawlers in the English and Welsh fleet of 0.6% of total catch (less than the estimate produced by the Claimant’s evidence of 1.6%).

With the exception of the Netherlands and Belgium this is the pattern for all beam trawlers operating from other Member States. It is accepted that the Netherlands and Belgium have a higher proportion of chain mat beam trawlers than any of the other fishing countries. When totalled the average by-catch of cod by all beam trawlers was 8.9% of those trawlers catch. However, of that figure, 7.9% is represented by the by-catch of beam trawlers from the Netherlands and Belgium. It is accepted that Nephrops boats catch cod at the rate of approximately 20% of their total catch. While these figures may not be a precisely accurate estimate of the impact of the different types of fishing on the cod stock because of discards at sea, it is apparent that the conservation impact of reducing open gear beam trawlers’ days at sea is much less than restrictions upon other types of fishing.

The relative conservation impact of restricting open gear beam trawl fishing on cod stocks becomes even smaller when account is taken of the likely impact of the unrestricted fishing by boats of less than 10 metres. No figures are available because no attempt is currently made to obtain information from the owners of those fishing boats. The Claimants produced figures of cod caught over a particular period by an under 10 metre boat that became a member of the second claimant’s organisation. It is not contested that those figures show a substantial cod catch.

It is not contested that the impact of the restrictions seriously undermines the economic viability of open beam trawl fishing. It is the uncontested evidence of the claimants that the restrictions will prevent the open gear beam trawl fleet from catching even its substantially reduced quota of plaice and sole. It is the uncontested evidence of the Claimants that the first claimant is close to being forced out of business and that this may be the effect of the restrictions on many of the other open beam trawl fishing companies because their boats are not easily adapted for other sorts of fishing even if they had appropriate licenses to undertake such fishing. The impact of the loss of commercial viability of the open gear beam trawl fleet will have the obvious substantial adverse consequences for the fishing communities that depend upon them.

The Claimants accept that there has recently been a catastrophic decline in cod stocks in the North Sea and that measures for their conservation by restricting fishing are urgently needed. They also accept that the Order and the further Order which replaced it in July 2003 reflects the requirements of the Regulation. They complain, however, that the Regulation, and in particular, Annex XVII produces a scheme for the further restriction of fishing in the North Sea over and above the existing quota restrictions, which has effect so that the class of fisherman who are permitted the least time at sea, the beam trawlers, and particularly the open gear beam trawlers, are those whose fishing has the least impact on the surviving cod stock by a substantial margin over the methods used by other groups of competing fisherman. They seek judicial review of the Order.

It is accepted that the court should look at the position as it is today after the No2 Order notwithstanding that the claim was commenced on the 28^th April 2003.

It is the Claimants’ case that the impact of the fishing restrictions introduced by the Regulation on open gear beam trawl fisherman was not proportionate to the objective of that Regulation namely the conservation of cod stocks in the North Sea. It is further their case that, as introduced, those restrictions discriminate against their class of fisherman by comparison with other North Sea fisherman.

The underlying Treaty basis of the Regulation is Articles 32 to 38 of the Treaty establishing the European Community which set up the Common Agricultural policy. The objectives of that policy are defined in Article 33 (1) and include at (b) “to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture” (which includes fishing). In pursuing these objectives the Council and Commission are bound to comply with the obligations contained in Article 34 which include at paragraph 2 a provision that “the common organisation shall be limited to the pursuit of the objectives set in Article 33 and shall exclude any discrimination between producers or consumers within the Community”. It is accepted that a failure by the Community Institutions to act proportionally with the objectives to be attained, or to discriminate between producers in so doing, would constitute those actions unlawful and invalid. This court has no power to declare a regulation of the Council or decision of the Commission invalid.

If the Claimants are to succeed it will be necessary for them to obtain an appropriate declaration of invalidity in respect of those parts of the Regulation which bear upon them. They therefore seek an order of this court that the matter be referred to European Court of Justice for that court to consider whether such a declaration should be made.

The evidence establishes that the regulations bear disproportionately heavily on the open gear beam trawlers having regard to the minimal impact that their method of fishing has on cod stocks. The defendant contends, however, that on the issue of proportionality the Community Institutions as the regulators of the Common Agricultural Policy have a wide margin of appreciation sufficient to cover the apparent imbalance between the impact of open beam trawl fishing on cod stocks and the severity of the restrictions on fishing by open beam trawl fisherman. See the case of Jippes Case –189/01 [2001] ECR I-5689. At paragraph 82 in the judgment in that case the following passage appears:-

“82

As regards judicial review of compliance with that principle [proportionality] - bearing in mind the wide discretionary power enjoyed by the Community Legislature in matters concerning the common agricultural policy, the legality of a measure adopted in that sphere can be effected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue.”

It is the defendant’s contention, also, that the same margin of appreciation is sufficient to justify the apparent imbalance of treatment of open gear beam trawlers by comparison with other fishing methods imposed by the regulations. See the case of Kind Case 106/81 [1982] ECR 2885. At paragraph 22 of the judgment in that case the following passage appears:-

“… as regards the submission alleging discrimination it should be recalled that different treatment may not … be regarded as discrimination prohibited by Article [34-(2)] of the Treaty unless it appears to be arbitrary, or in other words, as stated in other judgments, devoid of adequate justification and not based on objective criteria.”

THE TEST

As I have already said a United Kingdom court has no power to declare a regulation or decision of a Community Institution invalid. Before giving judgment for a claimant whose case depends on such a regulation or decision being found to be invalid, the case must be referred to the European Court of Justice for that court to pronounce in favour of invalidity. See Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR at 4231 paras 17-18, and 20. A national court (other than a court of last resort i.e. this court) has a discretion whether or not to refer questions arising in a case to the European Court of Justice. This court, therefore, could decide not to refer the case and pronounce the regulation valid contrary to the submissions of the claimants.

In Regina v International Stock Exchange of The United Kingdom and Republic of Ireland Ltd, ex-parte Else (1982) Ltd 1993 QB 534, Sir Thomas Bingham MR said this at page 545:-

“In relation to questions such as 1(a) and 2(a), I understand the correct approach in principle of a national court (other than a final court of appeal) to be quite clear: if the facts have been found and the Community law issue is critical to the courts’ final decision the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself. In considering whether it can with complete confidence resolve the issue itself the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments. If the national court has any real doubt, it should ordinarily refer.”

The requirement to refer is particularly clear where the question in issue is the validity of Community legislation see the Foto-Frost case ibid at page 4231 paragraph 18 and the opinion of Advocate General Mancini at page 4223 paragraph 9(1) where he says:-

“If a national court has doubts about the validity of a Community measure, it must stay the proceedings and ask the Court of Justice to give a preliminary ruling on the matter.”

My attention was drawn by Mr Hoskins for the defendant to the case of Wiener case C-338/95 [1997] ECR 1-6495 and to the opinion of Advocate General Jacobs in that case in which he urges restraint on references by national courts to the Court of Justice for fear of overloading that court. However the Advocate General accepts at page 6505 paragraph 25 that different considerations apply where the validity of Community measures are in issue:-

“25

It is clear that the proposed self-restraint could not apply to those types of case: they are not concerned with interpretation, but with validity, and it is well known that this court alone has the power to declare Community acts invalid.”

In my judgment the appropriate test to apply in my decision whether or not to refer the issues of the validity of the Regulation and the Decision to the European Court of Justice is that prescribed by Sir Thomas Bingham MR in the ex-parte Else case. I must refer unless I have “complete confidence” that the Regulation and the decision are valid to the extent that they place restrictions on fishing by open gear beam trawlers.

I have come to the conclusion that I cannot have that confidence in the validity of the Regulation or the Decision and that accordingly I should refer the issues of proportionality and discrimination in the impact of those measures on open beam trawl fisherman to the Court of Justice.

Various other arguments were raised as well as the extent of the Community Institutions’ margin of appreciation in their administration of the Common Agricultural policy seeking to persuade me not to refer. It was submitted that the Regulation was the product of extensive negotiations between the representatives of Member States faced with an urgent need quickly to impose effective reductions in fishing operations which caught cod in the North Sea: that the scheme was a temporary one expressly to last until the end of this year when it would be replaced. It does not seem to me that such considerations would justify the Community Institutions producing and imposing unlawful regulations particularly since the open beam trawl fisherman may have claims for compensation against those institutions in the event that relevant measures are pronounced invalid.

It was also argued that the scientific advice obtained by the Commission showed that conservation measures were also required for sole and plaice, the particular targets of the open beam trawl fisherman. It seems that their quotas have, as a result, been reduced. I do not find this contention persuasive. The relevant issues of proportionality and discrimination and the countervailing margin of appreciation of the Community Institutions have to be judged against the purpose of the regulations in question which is the conservation of cod stocks. Furthermore the evidence of the claimants that the effect of the Regulation and the Decision will be that the open gear beam trawlers will not have sufficient time at sea to catch even their reduced quota of sole and plaice, is not challenged.

It is further argued that since it is unlikely that an answer can be obtained from the Court of Justice in under two years a reference is pointless because in that time it is likely that restrictions in an entirely different form from those imposed by the Regulation will have been substituted for it. Again this argument does not deal with the question of compensation in the event the Regulation is found to be invalid. In any event it does not seem to be a valid reason to oppose the reference of an issue of invalidity of Community legislation to suggest that the lawfulness or otherwise of that legislation should not be tested because the court with exclusive jurisdiction to conduct the test will take a long time to get around to doing so.

I will ask counsel for the parties to draft the appropriate questions to be submitted the European Court of Justice consequent on this judgment.