QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen - on the application of Unitymark Limited
|- and -
Department of Environment, Food & Rural Affairs
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mark Hoskins (instructed by DEFRA) for the Defendant
Crown Copyright ©
Mr Justice Evans-Lombe :
"Having regard to the Treaty establishing the European Community…
(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. …
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…
Fishing effort and additional conditions for monitoring, inspection and surveillance in the context of recovery of certain cod stocks
1. From 1stFebruary 2003 to 31stDecember 2003 the conditions laid down in this Annex shall apply to Community fishing vessels of length overall equal to or greater than 10 metres…."
"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."
"(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.
(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.
(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:
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.
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.
The number of additional days allocated under Articles 1 and 2 may be cumulated."
"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 Underlying Facts
"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."
"… 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."
"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."
"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."
"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."
MR JUSTICE EVANS-LOMBE: In this case the claimants seek a declaration that the Sea Fishing (Restriction on Days at Sea) Order 2003 (SI 2003/229) carrying into effect certain provisions of Annexure 17 of Council Regulation No 2341/2002 is contrary to EC law by reason of the similar invalidity, or the invalidity on the same grounds, of the Regulation and Annex and an order quashing the order to the extent that it implements those parts of Annexure 17 which are so contrary to EC law.
In the interim the claimants sought from me an order referring the issue whether the relevant provisions of the Regulation and Annexure 17 were invalid as a result of such illegality. That reference was opposed by the defendant, Department of Environment, Food and Rural Affairs.
In the result, for the reasons set out in the written judgment I have handed down, I have decided that I will make the order for reference.
MR LEWIS: I am obliged, my Lord. There is a draft order that is before your Lordship in which we have together set out, or attempted to set out, the questions which we think arise out of your Lordship's judgment. We are agreed on that except for part 3 of it, which relates to the costs consequences of your Lordship's order. Unless your Lordship has any other points on any other aspects of the order, then I would propose just to address your Lordship briefly on costs.
Our submission is a very brief one. They did not consent to the suggestion that there should be a reference, we say they ought to have done, and we had quite a long hearing and quite a lot of preparation as a result of their not consenting to it.
MR JUSTICE EVANS-LOMBE: What is the normal order on a reference?
MR LEWIS: My Lord, it depends. Certainly my learned friend will, with some justifiability, say that it has to be the court that makes the order at the end of the day, it is not something that can simply go by consent, so therefore the court has to be satisfied --
MR JUSTICE EVANS-LOMBE: So there has to be a hearing of some kind.
MR LEWIS: There has to be a hearing, but having said that, in my submission, if the situation is one where a reference is appropriate, and the court has decided that a reference is appropriate, then that too is something which sought to have been taken into account by DEFRA in these circumstances in order to avoid the length of hearing that we have actually had in the circumstances of this case.
MR JUSTICE EVANS-LOMBE: If there was an unopposed reference, presumably the costs would be costs in the course.
MR LEWIS: Yes. That is what my learned friend asks for.
MR JUSTICE EVANS-LOMBE: Is it the practice that when there is an opposed reference which succeeds the opposition are ordered to pay the costs?
MR LEWIS: I think that probably the answer to that is that it is not possible to define a practice in the cases. My learned friend I think is nodding to agree with me that it is not possible to define a practice, rather than that there is a practice. It is not possible to define a practice but it depends on the particular circumstances.
MR JUSTICE EVANS-LOMBE: There is the sort of informal costs follow the event rule.
MR LEWIS: Indeed. The costs follow the event rule is what I rely on. My learned friend relies on the proposition that obviously there would have had to have been a hearing. Perhaps the answer lies somewhere in between and it should possibly be three-quarters of the costs.
MR JUSTICE EVANS-LOMBE: Yes.
MR HOSKINS: My Lord, our submission is that one cannot apply the normal costs principles, by which I mean that costs should follow the event to this situation.
MR JUSTICE EVANS-LOMBE: Would you oppose an order reserving the costs to the trial judge?
MR HOSKINS: To when it came back from Luxembourg?
MR JUSTICE EVANS-LOMBE: Yes.
MR HOSKINS: No, my Lord.
MR JUSTICE EVANS-LOMBE: Are you going to argue against that?
MR LEWIS: My Lord, I do not think I can.
MR JUSTICE EVANS-LOMBE: I will make that order.