Supreme Court allows judicial review declaring Mackerel Licensing Order ultra vires s.223A of Fisheries Act 1959.

THE SUPREME COURT

RECORD NO. 471/2004

MURRAY C.J.

DENHAM J.

HARDIMAN J.

FENNELLY J.

McCRACKEN J

BETWEEN

THOMAS KENNEDY

APPLICANT/RESPONDENT

AND

THE ATTORNEY GENERAL, MINISTER FOR THE MARINE AND NATURAL RESOURCES.

RESPONDENTS/APPELLANTS

Judgment delivered on the 31st day of May, 2005 by Denham J.

1. This is an appeal by the Attorney General and the Minister for Marine and Natural Resources, the respondents/appellants,

hereinafter referred to collectively as ‘the respondents’, from a decision of the High Court (Ó Caoimh J.) given on 31st July, 2004,

whereby the Mackerel (Licensing) Order 1999 (S.I. No 311 of 1999) was declared to be ultra vires s.223A of the Fisheries

(Consolidation) Act, 1959 (as inserted by s.9 of the Fisheries (Amendment) Act, 1978 and as amended by s.4 of the Fisheries

(Amendment) Act, 1983). The High Court determined that the Mackerel (Licensing) Order 1999 was ultra vires in that the Minister for

the Marine and Natural Resources, hereinafter referred to as ‘the Minister’, had purported to promulgate the said Order pursuant to

s.223A in order to give effect to Council Regulation (EEC) No. 2847/93, as amended by Council Regulation (EC) No. 2846/98.

2. Thomas Kennedy, the applicant/respondent, hereinafter referred to as the applicant, is a fisherman who holds a licence granted

pursuant to article 3 of the Mackerel (Licensing) Order 1999 (hereinafter referred to as ‘the order’). There were two pertinent

conditions attached to the licence. First, condition 8 required the applicant to give four hours notice to a sea fisheries protection

officer at the relevant port of his intention to land or tranship mackerel at that port. Secondly, condition 9 provided that mackerel

might be landed or transhipped only at ports designated and named in the licence or at such other ports as may be specified by a

senior sea fisheries protection officer.

3. The applicant was charged with two offences alleging that on or about the 19th April, 2001, he violated the terms of the

conditions of the licence by not giving four hours notice to the sea fisheries office and by landing mackerel at a non–designated port.

The applicant pleaded not guilty to both charges. In both instances the violation of the licence condition was alleged to be in

contravention of article 3(10) of the order and s.223A of the Act of 1959 (as amended). The applicant was returned for trial to the

Circuit Court in Tralee.

4. These judicial review proceedings were then brought by the applicant. The applicant sought, inter alia, an injunction by way of an

application for judicial review restraining the first named respondent from prosecuting the alleged offences of which the applicant is

accused and charged. He also sought a declaration that two articles in the order relating to the two conditions in the fishing licence

are ultra vires and exceed the jurisdiction of s. 223A of the Fisheries (Consolidation) Act, 1959 (as inserted by s.9 of the Fisheries

(Amendment) Act, 1978 and amended by s.4 of the Fisheries (Amendment) Act, 1983).

5. The issue before the High Court was whether the Minister had the power to make the order and impose the conditions on the

applicant’s licence as purported to have been done.

The High Court held:

“ In all the circumstances I will allow the application of the applicant in light of the limited basis set forth in the amended

statement of grounds, by making a declaration that the Mackerel (Licensing) Order, 1999, is ultra vires the powers of the

respondents herein pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, (as inserted by s.9 of the Fisheries

(Amendment) Act, 1978, and amended by s.4 of the Fisheries (Amendment) Act, 1983) on the ground at paragraph 11B of the

Amended Statement namely that the respondents have acted ultra vires in purporting to implement Council Regulation (EC) No.

2847/93 of 12th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December, 1998, by purporting to

promulgate the Mackerel (Licensing) Order, 1999, allegedly pursuant to s.223A of the Fisheries (Consolidation) Act, 1959.”

6. Grounds of Appeal

The respondent filed grounds of appeal, appealing on the basis that the learned High Court judge erred in law:

(i) In holding that the Order was directed to implementing Community policy, notwithstanding the finding (hereinafter referred to

as ‘the finding’) that the provisions constituted a measure of conservation of fish stocks and of rational exploitation of fisheries

within the meaning of section 223A;

(ii) In holding that the Order fell within the terms of the Common Fisheries Policy, notwithstanding the finding;

(iii) In holding that the Order was made essentially in the context of the Common Fisheries Policy, notwithstanding the finding;

(iv) In holding that the respondents implemented Council Regulation (EC) No. 2847/93 of 12th October 1993, as amended by

Council Regulation (EC) No. 2846/98 of 17th December 1998 by promulgating the Order;

(v) In holding that the Minister acted ultra vires by making the Order, notwithstanding the finding;

(vi) In failing to hold that in exercising the residual power of the State to manage and conserve the resources of the sea the

Minister was entitled to make the Order.

7. The Law

7.1 First and foremost there is the law of the Community. Council Regulation (EEC) No. 2847/93 of 12th October, 1993, established a

control system applicable to the Common Fisheries Policy. To achieve this aim, it was recited that it was necessary to include rules

for the monitoring of conservation and resource management measures, structural measures and measures on the common

organisation of the market, and certain provisions to deal with failure to carry out these measures, which must apply to the entire

fisheries sector from the producer to the consumer. It was recited that whereas control is first and foremost the responsibility of the

Member States, however, that the Commission should also seek to ensure that the Member States monitor and prevent infringements

in an equitable manner and therefore the Commission should be provided with the financial, legal and legislative means to carry out

this task as effectively as possible. It was recited that to ensure that all catches and landings are kept under surveillance, Member

States must monitor in all maritime waters the activities of community vessels and all related activities, allowing verification of the

implementation of the rules concerning the Common Fisheries Policy.

The extent of the Common Fisheries Policy and Commission control may be illustrated by the recital that whereas limitations on

catches must be managed at both Member State and Community level, Member States should register landings and notify them to the

Commission by computer transmission. In general, provision is made for the gathering of information and its transmission to the

Commission. The recitals in the regulation indicate the overarching nature of the Common Fisheries Policy, while a nod is given to

national provisions. It is recited that whereas this regulation should not affect the national provisions on monitoring, which, while

coming within its scope, go beyond its minimum provisions, provided however, that such national provisions are in conformity with

Community law.

Title I provided for the inspection and monitoring of fishing vessels and their activities. Article 2.1 provided:

“In order to ensure compliance with all the rules in force concerning conservation and control measures, each Member State

shall, within its territory and within maritime waters subject to its sovereignty or jurisdiction, monitor fishing activity and related

activities. It shall inspect fishing vessels and investigate all activities thus enabling verification of the implementation of this

Regulation, including the activities of landing, selling, transporting and storing fish and recording landings and sales.”

Article 4 provided:

1. The inspection and monitoring specified in Article 2 shall be carried out by each Member State on its own account by means

of a system of inspection decided by the Member State.

In carrying out the tasks entrusted to them, Member States shall ensure that the provisions and measures referred to in Article

2 are complied with. Moreover, they shall act in such a way as to avoid undue interference with normal fishing activities. They

shall also ensure that there is no discrimination as regards the sector and vessels chosen for inspection.”

Title II made provision for the monitoring of catches. Article 6.1 provides:

“The masters of Community fishing vessels fishing for a stock or group of stocks shall keep a logbook of their operations,

indicating particularly the quantities of each species caught and kept on board, the date and location (ICES statistical

rectangle) of such catches and the type of gear used”.

Article 6.3 provides: The species to be entered in the logbook under paragraph 1 are those subject to TACs or quotas, as well as

others decided by the Council. The masters of the Community fishing vessels are required to enter in their logbook the quantities

caught at sea, the date and location of the catches and the species referred to in Article 6.2.

Article 7 states:

“1. The master of a Community fishing vessel who wishes to utilize landing locations in a Member State other than the flag

Member State must inform the competent authorities in that Member State at least two hours in advance of:

- the landing location(s) and estimated time of arrival there,

- the quantities of each species to be landed.

2. The master referred to in paragraph 1 who fails to make these notifications may be subject to appropriate sanctions by

the competent authorities.”

Council Regulation (EC) No. 2846/98 of 17th December, 1998 amended the regulation referred to above, which established a control

system applicable to the Common Fisheries Policy. The new regulation recited that controls on fishery products after landing should be

reinforced and that the information about fishery products referred to in Article 9 of Regulation (EEC) No. 2847/93 should be available

from the moment of landing until the final marketing stage. It was also recited that the means of control of each Member State should

include interventions at sea, on landing, as well as after landing, while taking into account the specificities of each Member State.

Reference was made to the risk of different types of fraud and for controls prior to and after landing.

Of specific importance is Title 1 which states:

“…TITLE I

Monitoring, inspection and surveillance; 2. Article 2 shall be replaced by the following:

‘Article 2

1. In order to ensure compliance with all the rules in force, each Member State within its territory and within maritime waters

subject to its sovereignty or jurisdiction shall monitor, inspect and maintain surveillance of all activities in the fisheries sector,

particularly fishing itself, transhipment, landing, marketing, transport and storage of fisheries products and the recording of

landing and sales. The Member States shall take the necessary measures to ensure the best possible control within their

territory and within maritime waters subject to their sovereignty or jurisdiction, taking into account their particular situation.

2. Each Member State shall ensure that the activities of its vessels outside the Community fishery zone are subject to proper

monitoring and, where such Community obligations exist, to inspections and surveillance, in order to ensure compliance with

Community rules applicable in those waters; 3. The last sentence of Article 3)2) shall be deleted;

4. Article 5 shall be replaced by the following:

‘Article 5

Detailed rules for the application of this Title shall be adopted as necessary, without prejudice to the national

competences, in accordance with the procedure laid down in Article 36, in particular as regards:

(a) the identification of officially designated inspectors and inspection vessels, aircraft and such other means of

inspection as may be used by a Member State;

(b) the procedure for the inspection and surveillance of activities in the fisheries sector;

(c) the marking and identification of fishing vessels and their gear;

(d) the certification of the characteristics of fishing vessels which relate to fishing activities;

5. Article 6(2) shall be replaced by the following:

‘2. From 1 January 2000 any amount greater than 50 kg of live-weight equivalent of any species retained on board, must

be recorded in the logbook in areas other than the Mediterranean. For the fisheries operations in the Mediterranean Sea

any amount greater than 50kg of live-weight equivalent retained on board of any species indicated on a list adopted

under this Article must be recorded in the logbook;

6. Article 6(8) shall be replaced by the following:

‘8. Detailed rules for the implementation of this Article shall be adopted in accordance with the procedure laid down in

Article 36, including:

- another geographical basis other than the ICES statistical rectangle, in certain specific cases, and

- recording of catches taken with small meshed gear and kept on board unsorted,

- the list referred to in paragraph 2.:

7. Article 7(1) shall be replaced by the following:

1. The Master of a Community fishing vessel who wishes to utilise landing locations in a Member State other than the flag

Member State shall comply with the requirements of any designated port scheme established by that Member State in

accordance with Article 38, or if that Member State does not operate such a scheme, he must inform the competent

authorities in that Member State at least four hours in advance of:

- the landing location(s) and estimated time of arrival there,

- the quantities of each species to be landed;”

7.2 That then is relevant Community law, I shall consider next relevant national law. First, there is general national statutory law

providing for community law.

In 1972 the European Communities Act, hereinafter referred to as the Act of 1972, was enacted to make provision for membership by

the State of the European Communities. It was provided that from the 1st day of January, 1973, the treaties governing the European

Communities and the existing and future acts adopted by the institutions of the communities shall be binding on the State and be part

of the domestic law: see s.2 of the Act of 1972. A power to make regulations was given to a Minister of State to enable s. 2 to have

full effect: see s.3 of the Act of 1972. However, parameters were set to the making of these regulations. Thus regulations may

contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary

for the purpose of the regulations (including provisions repealing, amending or applying, with or without modification, other law,

exclusive of the Act of 1972). It is specifically stipulated that regulations under this section shall not create an indictable offence:

see s.3(3). This is the basic scheme established by the Oireachtas where provision is made for the inclusion of the treaties of the

European Communities into domestic law and where there is provision for the making of regulations, with the specific stipulation that a

Minister could not by such regulations create an indictable offence. Such power was reserved to the Oireachtas.

7.3 The national law makes specific provision for regulations relating to fisheries. Section 223A of the Fisheries (Consolidation) Act,

1959, as amended, hereinafter referred to as s.223A, provides:

“(1) The Minister may, as he shall think proper, by order prescribe and adopt either or both of the following measures, namely,

measures of conservation of fish stocks and measures of rational exploitation of fisheries.

(1A) Without prejudice to the generality of subsection (1) of this section, an order under this section may-

(a) relate –

(i) generally to sea-fishing or to sea-fishing which is of a specified class or description,

(ii) generally to fishing other than sea-fishing or to such fishing which is of such a class or description,

(iii) generally to fisheries other than sea-fisheries or to such fisheries which are of such a class or description,

(iv) generally to fishing boats (including sea-fishing boats) or to fishing boats which are of such a class or description,

(v) to boats, other than fishing boats, which are of such a class or description,

(b) for the purpose of enabling the order to have full effect, extend any or all of –

(i) the powers conferred by this Act on a sea fisheries protection officer for the purposes of this Act,

(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act,

(iii) the powers so conferred on authorised officers within the meaning of section 301 of this Act,

(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate, and in case

provisions are included in such an order by virtue of paragraph (b) of this subsection, this Act shall be construed and

have effect in accordance with the terms of the order.

Section 224B, as inserted by s.10 of the Fisheries (Amendment) Act, 1978, as amended by s. 5 of the Fisheries (Amendment) Act,

1983, empowers the second named respondent to make regulations to give effect to Community law within the exclusive fishery limits

of the State. Section 5 of the Fisheries (Amendment) Act, 1983 provides:-

“Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A

(inserted by section 10 of the Act of 1978):

‘224B (1) Without prejudice to the generality of section 3(1) of the Act of 1972, the Minister may by regulations make

provision to give effect within the exclusive fishery limits of the Sate to any provision either of the treaties or of any act

adopted by an institution of the European Communities which authorises any or all the Member States of the European

Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of

waters, under its or their sovereignty or jurisdiction.

(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to

the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with

or without modification, other law, exclusive of this Act).

(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence

and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the

conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:

(a) any fish,

(b) any fishing gear.”

7.4 There is also relevant case law. In Browne v Ireland [2003] 3. I.R. 205. the issues included: (a) Whether the Drift Nets order in

issue was ultra vires the power of the Minister for Marine & Natural Resources having been made in purported exercise of powers

conferred on him by s.223A of the Fisheries (Consolidation) Act 1959, as amended, and not in exercise of the powers conferred on the

said Minister by s.3 (1) of the European Communities Act, 1972 as amended; (b) Whether the Drift Nets order in issue was ultra vires

the power of the Minister under s.223A of the Act of 1959 in purporting to authorise the creation by the said Minister of an indictable

offence outside the exclusive fisheries limits of that State; (c) Alternatively, if the Drift Nets order were intra vires s.223A, the latter

section constituted an impermissible delegation of law making power by the Oireachtas to the Minister contrary to Article 15 of the

Constitution:

Keane C.J. pointed out that it was accepted that Council Regulation (E.C.) 1239/98, which prohibited the use by vessels of Member

State within their exclusive fishing limits or on the high seas of certain types of Drift Nets, is directly applicable to the State to the

same extent as if it were an Act of the Oireachtas, and in the circumstances the Minister was empowered by s.3 of the Act of 1972

to make regulations for that purpose: the principles and policies being found in the regulation. Keane C.J., citing Cityview Press v An

Chomhairle Oiliúna [1980] I.R. 381, stated that secondary legislation will trespass on the exclusive law making role of the Oireachtas

unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, but that this does not apply

to regulations intended to give effect, by virtue of s.3 of the Act of 1972, to European Community measures such as the regulation in

issue, but that such regulation cannot create an indictable offence.

The issue before the court was whether the Order was intra vires s. 223A of the Act of 1959 or not. Keane C.J., (with whom Murray

J. (as he then was), McGuinness J., and Hardiman J. agreed) held that the Order was intended to give effect to the principles and

policies of the Community Council Regulation 1998, and not any act of the Oireachtas as parent legislation. Keane C.J., stated:

“.. there is not the slightest doubt as to the power of the second respondent to give effect by statutory instrument to the

principles and policies contained in that measure, even though they have not been embodied in any Act of the Oireachtas: that

is the clear object of s.3 of the Act of 1972. What no Minister can do, in availing of the powers conferred by that section, is to

provide for the creation of an indictable offence: that power was expressly reserved to the Oireachtas by subs. (3). There is no

indication whatever in the language of s.223A that it was envisaged by the Oireachtas that the [Minister] could give effect to

principles and policies which had never been considered or adopted by the Oireachtas by means of a statutory instrument under

that section which effectively circumvented the prohibition on the creation of indictable offences in s.3 (3) of the Act of 1972.”

Keane C. J., was reinforced in this interpretation by the terms of s.224B of the Act of 1959 where provision is made expressly for the

creation of an indictable offence. He expressed the view that such a deliberate omission from the statute is not consistent with the

intention to confer such powers on the Minister by s.223A.

This analysis of s.223A and s.224B of the Act of 1959 was central in the Browne v. Ireland case. It is also pivotal in this case. For

the Court is considering and contrasting the powers conferred on the Minister by the two sections.

8. Submissions on behalf of the Respondents

The respondents, in appealing to this Court, submitted that the Order is intra vires s. 223A of the Fisheries (Consolidation) Act, 1959.

It was submitted that unlike the Sea Fisheries (Driftnets) Order 1998, successfully impugned in Browne v Ireland, the Order does not

implement European Community Law, and, it was submitted that it cannot be attacked on the basis that it effectively circumvents s.

3(3) of the European Communities Act, 1972. It was submitted that this case does not involve a measure giving effect to Community

law but rather a measure adopted by the State in the exercise of its power to manage and control sea fishing and so is

distinguishable from Browne v Ireland. It was submitted that the measures were adopted not for the purpose of giving effect to

Community law but rather constituted the State’s residual power to manage and conserve the resources of the sea, albeit acting in

the context of the Common Fisheries Policy.

9. Submissions on behalf of the Applicant

On behalf of the applicant, responding to the appeal, it was submitted that the appeal should be dismissed, and that the Court should

declare:

(a) The Minister acted ultra vires s.3 (3) of the Act of 1972 by promulgating a statutory instrument dealing with the Common

Fisheries Policy which created an indictable offence.

(b) If the matters in question are matters of domestic law, then it is submitted that conditions No. 8 and No. 9 are ultra vires

the provisions of the 1999 Order and s. 223A of the 1978 Act.

(c) If conditions No. 8 and No. 9 are intra vires, then s. 223A of the Act of 1978 is unconstitutional in effectively assigning to

the Minister the power to determine policy in the areas of fishing conservation and the rational exploitation of fisheries.

10. Cross Appeal

The applicant filed a late cross appeal, notice to vary, contending that the judgment of the High Court should be varied as follows:

(i) That the provisions of conditions 8 and 9 of the applicant’s licence were in effect a direct or indirect application of a

European Community law provision by the Minister.

(ii) That the substantive issues raised by the applicant in relation to conditions 8 and 9 of the applicant’s licence being ultra

vires as set out in paragraph 4 and 5 of the amended statement required to ground the application for judicial review should be

adjudicated upon by the Supreme Court or in the alternative should be remitted back to the High Court for its determination on

the issues.

11. Decision

The core of this appeal relates to the use by the Minister of s. 223A. On behalf of the respondents it was argued that the principles

and policies of the parent act cover the matters in the Order. On behalf of the applicant it was submitted that the principles and

policies are to be found in Community law. Another way of setting out this issue is to ask the question as to whether the Minister

purported to use s.223A to give effect to Community law, including Council Regulation (EEC) No. 2847/93, as amended by Council

Regulation No. 2846/98. I will address this net issue which arises on an appeal from a decision of the High Court reached on the

limited basis set forth in the amended statement of grounds.

The terms of s.223A are set out earlier in this judgment, as too are the terms of s.224B which should be read together with s.223A. It

is clear that the Act established a scheme within which both s.223A and s. 224B have a role. They were analysed in the Browne v

Ireland.. The sections form part of a fisheries policy which is required to be analysed in the context of Irish law and the Common

Fisheries Policy.

The European Communities Act, 1972, specifically states a principle and a policy that regulations made by a Minister enabling

Community law shall not create an indictable offence: “Section 3(3) Regulations under this section shall not create an indictable

offence”. It is an important principle and policy of the legislation. It is a limitation on the power of a Minister. It retains to the

Oireachtas the power to create indictable offences. This recognition of the power of the Oireachtas is consistent with Community

law, as the method of implementing Community law is a matter for the Member State. This principle and policy may be revisited by the

Oireachtas. However, in view of the expressed policy in the Act of 1972 any change in that policy should be clear from the words of a

statute. There should not be an ambiguity. The Oireachtas did enact in express terms a provision in s.224B whereby the Minister may

by regulations give effect to Community law and it was stated that a person who fishes or attempts to fish in contravention of

regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding

£100,000 and forfeiture. It is in this context that s.223A and its use falls to be analysed.

Article 2(1) of Council Regulation (EC) No. 3760/92 establishing a Community system for fisheries and aquaculture, provides that, as

concerns exploitation activities, the general objectives of the common fisheries policy are to protect and conserve available and

accessible living marine aquatic resources, and to provide, inter alia, for a rational and reasonable exploitation of such resources on a

sustainable basis. With that in view, the Regulation establishes a Community system for the management of exploitation activities to

enable a balance to be achieved, on a permanent basis, between resources and exploitation in the various fishing areas. As Mr. James

Lavelle, Assistant Principal Officer at the Department of the Marine and Natural Resources, states in his affidavit:

“To that end, and in order to ensure sustainable exploitation activities, the regulation establishes a framework for the regulation

of excess, management and monitoring of exploitation activities, as well as the requite means and procedures”.

Article 1(1) of Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policies, as

amended by Council Regulation (EC) No. 2846/98, establishes a Community system to ensure compliance with the rules of the common

fisheries policy. As Mr. James Lavelle also pointed out in his affidavit:

“This system is to include provisions for the technical monitoring of, inter alia, conservation and resource management

measures. To the end, each Member State is to adopt, in accordance with Community rules, appropriate measures to ensure

the effectiveness of the system”.

Section 223A of the Act of 1959 in authorising the Minister to prescribe by order “measures of conservation of fish stocks and

measure of rational exploitation of fisheries” does so without regard to the objectives or rules of the common fisheries policy. In so

doing the Oireachtas conferred on the Minister a wide discretion based on the principles and policies of the section. The principles and

policies of that section are not limited or governed, at least within its own terms, by the rules and objectives of the common fisheries

policy. Section 224B on the other hand authorises the Minister to make Regulations making provision:

“to give effect within the exclusive fishery limits of the State to any provision either of the Treaties or of any Act adopted by

an institution of the European Communities which authorise any or all of the Member States … to restrict … fishing in waters, or

in part of waters, under its or their sovereignty or jurisdiction”.

The analysis of the Ministerial Order in question in this case cannot take place in a vacuum. In this respect Council Regulation (EEC)

No. 2847/93 as amended by Council Regulation 2846/98 is of critical importance. A review of the relevant Community Regulations as

set out above and the common fisheries policy as reflected in those Regulations leads one to the inevitable conclusion that it would

be unrealistic to consider that the Order was enacted for the purpose of a residual power of the State to manage and conserve the

resources of the sea for national purposes without reference to the Community Regulations and the common fisheries policy.

Ireland is under an obligation to manage, control and supervise the Community system at national level. In doing so it is under

Community obligation to inspect fishing vessels and to control and investigate all activities which include the enforcement of the TAC

for the mackerel species, landing, sales, transport and storage of fish. It was part of the State case that the landing and inspection

of mackerel is designed to ensure full compliance by the fishing fleet with the relevant Community Rules and to protect and conserve

aquatic resources for that purpose. Although the mackerel licensing regime may serve national interests it is maintained and

administered for the purpose of serving the Community interest in accordance with Ireland’s obligations under the common fisheries

policy.

In this case there is no doubt that the order made by the Minister is in substance an order made for the purpose of restricting fishing

in order to conserve marine resources so as to give effect to the rules and objectives of the common fisheries policy as authorised by

the Community Regulations. Essentially it serves the principles and policies of Community measures. Consequently, Browne v. Ireland

is not distinguishable. On consideration of the regulations and the Order, in the context of the Common Fisheries Policy, and with

reference to s.223A and s.224B, I am satisfied that the specific conditions of the Order in issue are primarily based on Community law.

The fact that there is an element of national management does not vitiate the overarching Community law.

In the scheme of the Irish fisheries legislation it could not have been intended by the Oireachtas that s.223A would be used to

implement Community law, in light of the clear words of s.224B. At issue in this Order is the conservation of fish stocks (a

competency of the European Union) where the Member States have an obligation to enforce the conservation. The relevant

conditions in issue, condition 8 and 9, are grounded in Article 2 of the regulation, i.e. Community law. If s.223A were considered an

appropriate basis for the statutory instrument it would, as pointed out by Keane C.J., in Browne v. Ireland, be used to circumvent

s.224B (quite apart from any consideration of s.3(3) of the Act of 1972).

I am satisfied that the learned trial judge was correct in allowing the application of the applicant on the limited basis, and in making a

declaration that the Order is ultra vires the powers of the respondents under s.223A of the Fisheries (Consolidation) Act, 1959, as

amended, on the ground that the respondent had acted ultra vires in purporting to implant Council Regulation (EC) No. 2847/93 of

12th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December, 1998, by purporting to promulgate the

Mackerel (Licensing) Order, 1999, allegedly pursuant to s.223A of the Fisheries (Consolidation) Act, 1959.

Consequently, I would dismiss the appeal.