National Parliaments and EU Law: O’Sullivan v Sea Fisheries Protection Authority  IESC 75
In a previous post, I complained about the approach the Irish courts have taken to the scope of the obligation on the Oireachtas (the Irish Parliament) to transpose certain measures of E.U. law into domestic law. These concerns are underscored by the decision of the Supreme Court in O’Sullivan v Sea Fisheries Protection Authority  IESC 75. E.U. regulations in relation to illegal, unreported and unregulated fishing required Member States to introduce points systems to ensure the enforcement of the E.U. norms. Under the points system introduced in Ireland by domestic positive law, the Authority was to determine, through its investigative officers, whether serious infringements of the norms had been committed. If so, points were automatically attached to the licence, subject to the licensee mounting an appeal within 21 days, in which proceeding the licensee would bear the burden of proof. Accumulation of points leads, ultimately, to the suspension or revocation of a licence. This was a standalone system, one which did not – as it does in the United Kingdom – impose points only subsequent to a criminal conviction. In the High Court, O’Connor J. held that the Irish points system ran afoul of the test for determining whether the Oireachtas needs to make a policy decision (via legislation) to implement E.U. law. In particular:
“The relevant EU regulations do not require a licence holder to bear the burden of proving that a serious infringement has not occurred. The Minister has not explained why this provision was inserted and the court cannot find any specific principle or policy in the relevant EU regulations to justify what may be categorised as minimising the burden to establish a serious infringement”.
The Supreme Court took a different view on this point on appeal. O’Donnell J. held that the necessary principles and policies had been set out in the E.U. Regulations. The domestic positive law was merely “incidental, supplemental and consequential”, for all that was left to Member States was “the establishment of a process for the allocation of the points in practice”:
“Here the most striking feature of the legislative scheme is not just the regulatory straitjacket that applies to member states, but the detailing on the garment. Uniformity in the rules, and so far as possible in their application as between member states, is a clear and specific objective of the European regulations. The fundamental decisions, that IUU fishing is a serious threat to the common fisheries policy; that existing methods of enforcement were not sufficient to discourage and prevent such fishing; that those methods of enforcement require to be supplemented by a system of points allocation on licences; the particular transgressions requiring points allocations; the number of points to be applied once a breach is established; the number of points which can be accumulated before suspension; the initial and subsequent periods of suspension; the level of the infringement giving rise to loss of a licence; the requirement that points transfer with the licence; the possibility of erasing all accumulated points; the period necessary to do so and many other features of the scheme are all specified by the European regulations. Indeed, it might be said that the only substantive matter left to member states in this regard is a decision as to whether an infringement is serious, and even then the factors to which regard may be had are themselves prescribed”.
Yet O’Donnell J. went on to hold that the Irish points system breached constitutional justice. In other words, the choice made in formulating the domestic positive law to implement the E.U. Regulations was one which violated fundamental rules of the Constitution. It may be, as O’Donnell J. put it, that “[a] choice does not imply a capacity to determine policy”, but the “choice” at issue here was, plainly, a choice between a points system that complied with the Constitution and one that did not. Choosing a constitutional-justice-compliant administrative system over unconstitutional alternatives would seem to require a determination of policy. Indeed, the Irish courts presume that the Oireachtas intends in the exercise of its capacious Art.15 powers to legislate in conformity with the precepts of the Constitution. The cornerstone of constitutional and statutory interpretation in Ireland is the premise that it is precisely the role of the Oireachtas to make determinations as to what is constitutional and what is not. The Supreme Court’s analysis in O’Sullivan, with respect, chips away at that cornerstone.
  IESC 75;  3 I.R. 751.
 See European Union (Common Fisheries Policy) (Point System) Regulations 2014 (SI No. 3 of 2014).
  IEHC 77.
 The plaintiffs were ultimately successful, on the ground that the procedures under the points system breached their right to constitutional justice. See further para 7-xxx and para 15-xxx.
  3 I.R. 751 at 778.
  3 I.R. 751 at 779-784.
  3 I.R. 751 at 779.
This content has been updated on December 21, 2018 at 10:12.