McDowell & Ors v Sea Fisheries Protection Authority (No.2) (Approved)

NOEL MCDOWELL, KILLYBEGS FISHING ENTERPRISES LIMITED, KILLYBEGS SEAFOODS UNLIMITED AND THE KILLYBEGS FISHERMEN'S ORGANISATION LIMITED.

      The original appeal concerned the proper interpretation of one of the regulatory powers of the Authority, namely, Article 60(6) of the Control Regulation (EC) No. 1224/2009 ("the Control Regulation") and the Commission Implementing Regulation (EU) No. 404/2011 of the 8 th April 2011 (as amended by Commission Implementing Regulation (EU) No. 2015/1962 of the 28 th of October 2015) ("the Commission Implementing Regulation").

      Article 61(1) of the Control Regulation allows for a derogation from aspects of Article 60 where Member States have been given a derogation pursuant to a Control Plan approved by the Commission. In such circumstances the "fisheries products [may] be weighed after transport from the place of landing provided that they are transported to a destination on the territory of the Member State concerned".

      It is, I think, agreed that at that precise time there was no fully satisfactory weighing system at the Killybegs quayside. Some of these deficiencies were explored by Simons J. in his judgment of 4 June 2021: see Pelagic Weighing Services Ltd. v. Sea-Fisheries Protection Authority [2021] IEHC 345 where he observed:

"25. The weighbridge is not specifically designed for weighing fish.� It appears from the affidavit evidence filed that certain of the fishermen in Killybegs regarded themselves as presented with an unattractive choice between (i) protecting the quality and value of the fish by weighing the same in its protective envelope of refrigerated sea water but thereby recording the water as fish, or, alternatively, (ii) dewatering the catch prior to weighing, with a risk of damaging the quality and value of the fish.