Judgment;Summary — ECLI:EU:C:2021:112
Date: 2021-02-11
Language of the case: English
Court formation: Sixth Chamber
Subject matter: Agriculture and Fisheries;Fisheries policy;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary of the essential facts by a 
sea fisheries protection officer. These were not disputed. There was no evidence of 
any previous convictions. The appellant did not give evidence at the sentencing 
hearing, although he had an entitlement to do so if he wished. No evidence was 
adduced concerning the appellant’s means, or that of the owners of the fishing vessel.
15. The transcript of the sentencing hearing is annexed as Annex No 1.
The legislative background to the central controversy
16. Commercial sea fishing is regulated in Irish domestic law by Part XIII of the 
Fisheries (Consolidation) Act 1959 (“the Act of 1959”). This enactment of this 
legislation predated Ireland’s accession to the then EEC in 1972. However, following 
Ireland’s said accession when it became subject to the nascent Common Fisheries 
Policy (CFP), established in 1970 by the original six EEC members, which was 
initially implemented by Council Regulation 2141/70, and as the CFP became 
increasingly complex and more sophisticated, the Act of 1959 was incrementally 
amended to take account of the CFP and an ever-increasing and complex body of 
European legislation underpinning it.
17. The extension by the EC of its fishing limits from 12 nautical miles to 200 
nautical miles in 1976 prompted the enactment of the Fisheries (Amendment) Act 
1978 which amended the Act of 1959 to take account of that, and further amendments 
to the Act of 1959 were effected by Fisheries (Amendment) Acts of 1983, 1994, 1997, 
2001 and 2003.
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18. However, by 2006 it was recognised that Ireland’s sea fisheries legislative 
framework had become dated and unwieldy, so that a significant overhaul was 
required. The Sea Fisheries and Maritime Jurisdiction Act 2006 (“the Act of 2006”) 
was enacted partly with this in mind, and it revised substantially Part XIII of the Act 
of 1959. While the Act of 2006 dealt with more than just sea fisheries the whole of 
Part 2 of that Act, containing seventy-five individual sections, spread across six 
chapters, is devoted to sea fisheries.
19. Section 28 of the Act of 2006, which is in Part 2, Chapter 4 (entitled Matters 
relating to indictable fishery offences, proceedings, forfeiture) of the instrument, deals 
with penalties and forfeiture for certain indictable fishery offences. - see Annex 2.
The offences to which the section applies are identified in s.28(l) and it is 
uncontroversial that the offence of which the appellant was convicted comes within 
s.28(l)(a) on the basis that it is an offence under a provision of Chapter 2 specified in 
Table 1.
20. By the time of the enactment of the Act of 2006 the CFP was underpinned by 
a raft of European legislation, and continues to be the case. Much of it relates, and has 
always related, to specific aspects of the policy such as the setting of fishery limits, 
conservation measures and the setting of quotas for different species, the regulation of 
the modalities of sea fishing, the setting of specifications for vessels and their fishing 
gear, specifying the records to be kept by fishermen and their reporting obligations, 
and regulating the storage, transportation, processing and marketing of catch. A 
specific example directly relevant to an issue in the prosecution giving rise to this 
appeal is Council Regulation (EC) No 850/1998, Article 32 of which imposes 
restrictions on the use of automatic grading equipment - See Annex 3. However, at 
the core of each successive iteration of the CFP is a Council Regulation, known as the 
“Control Regulation” which provides for a Community control system for ensuring 
compliance with the rules of the CFP.
21. At the time of the enactment of the Act of 2006 the Control Regulation then in 
force was Council Regulation (EEC) No 2847/93. Title VIII of that instrument dealt 
with “Measures to be taken in the case of non-compliance with the rules in force” and 
was comprised of Articles 31 to 34 inclusive. Of relevance to the dispute the subject 
matter of this reference was that Article 31 of Regulation No 2847/93 provided, in 
sub-article 1, 2 and 3 thereof, as follows:
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“1 . Member States shall ensure that the appropriate measures be taken, 
including of administrative action or criminal proceedings in conformity with 
their national law, against the natural or legal persons responsible where 
common fisheries policy have not been respected, in particular following a 
monitoring or inspection carried out pursuant to this Regulation.
2. The proceedings initiated pursuant to paragraph 1 shall be capable, in 
accordance with the relevant provisions of national law, of effectively 
depriving those responsible of the economic benefit of the infringements or of 
producing results proportionate to the seriousness of such infringements, 
effectively discouraging further offences of the same kind.
3. The sanctions arising from the proceedings mentioned in paragraph 2 may 
include depending on the gravity of the offence :
— fines,
— seizure of prohibited fishing gear and catches,
— sequestration of the vessel,
— temporary immobilization of the vessel,
— suspension of the licence,
— withdrawal of the licence.”
22. Subsequent to the enactment of the Act of 2006 Council Regulation (EEC) No 
2847/93 was repealed and replaced by a new Control Regulation, i.e., Council 
Regulation (EC) No 1224/2009 of 20 November 2009.
23. Title VIII of Council Regulation (EC) No 1224/2009, which is entitled 
ENFORCEMENT, is comprised of Articles 89 to 93 inclusive. Article 89 is the 
provision of relevance to the dispute giving rise to the reference. It bears the subtitle 
“Measures to ensure compliance” and provides, in sub-articles 1, 2 and 3 thereof, as 
follows:
“1. Member States shall ensure that appropriate measures are systematically 
taken, including administrative action or criminal proceedings in conformity 
with their national law, against the natural or legal persons suspected of a 
breach of any of the rules of the common fisheries policy.
2. The overall level of sanctions and accompanying sanctions shall be 
calculated, in accordance with the relevant provisions of national law, in such 
way as to make sure that they effectively deprive those responsible of the 
economic benefit derived from their infringement without prejudice to the
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legitimate right to exercise their profession. Those sanctions shall also be 
capable of producing results proportionate to the seriousness of such 
infringements, thereby effectively discouraging further offences of the same 
kind.
3. Member States may apply a system whereby a fine is proportionate to the 
turnover of the legal person, or to the financial advantage achieved or 
envisaged by committing the infringement.”
24. Article 90 provides for sanctions for serious infringements. The respondent 
has argued that an offence of the type committed by the appellant may be regarded as 
constituting a serious infringement as defined in the regulation. Our attention was 
drawn to the fact that Article 90 commences its provisions by highlighting the fact 
that the contraventions thereafter set out (at subparagraphs a), b) and c)) are to be 
viewed as “in addition to Article 42 of Regulation (EC) No. 1005/2008”.
25. Article 42 of Regulation (EC) No. 1005/2008 provides, under the heading 
“Serious infringements”:
“1. For the purposes of this Regulation, a serious infringement means:
a) The activities considered to constitute IUU fishing in accordance with the 
criteria set out in Article 3;
b) ...;
c) ....
2. The serious character of the infringement shall be determined by the 
competent authority of the Member State taking into account the criteria set 
out in Article 3(2).”
(IUU Fishing means Illegal Unreported and Unregulated Fishing)
26. If one turns to Article 3 of the same Regulation, one finds at paragraph 1(e) 
that fishing vessels shall be presumed to be engaged in "IUU fishing" if it is shown 
that, contrary to the conservation and management measures applicable in the fishing 
area concerned, it has “... used prohibited or non-compliant fishing gear...”
27. We note further that Article 90.2 of Council Regulation (EC) No 1224/2009 
provides that a natural person is punished by effective, proportionate and dissuasive 
administrative sanctions, in accordance with the range of sanctions and measures 
provided for in Chapter IX of Regulation (EC)No 1005/2008.
28. Further, Article 90.3 provides that the sanction be effectively dissuasive and, 
as appropriate, calculated on the value of the fisheries products obtained by
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committing a serious infringement thereby setting, in the submission of the appellant, 
a maximum criterion for the sanction, which is required to focus on the value of the 
catch obtained by virtue of the breach of the control regime (but not the value of the 
gear).
29. Article 90.5 provides that effective, proportionate and dissuasive criminal 
sanctions may also be used.
30. Up to the time of the appellant’s prosecution, conviction and sentencing, there 
had been no substantive amendment to the Act of 2006, and no amendment to s. 28 in 
particular, arising from modifications to the CFP effected by Council Regulation (EC) 
No 1224/2009.
The central controversy
31. The central controversy creating the need for the reference concerns whether 
s.28(5)(b) of the Act of 2006, which provides that in the case of an offence such as 
that of which the appellant has been convicted “any fish and fishing gear found on the 
boat to which the offence relates or in any other place where they may be are as a 
statutory consequence of the conviction, forfeited” is compatible with Council 
Regulation (EC) 1224/2009, and in particular Article 89 thereof which provides for 
the sanctioning of the particular infringement detected in this case.
32. The appellant has made the case before the Court of Appeal that Council 
Regulation (EC) 1224/2009 does not require the automatic imposition of such a 
sanction on a fishing vessel, in circumstances where the exercise of jurisdiction by the 
Irish legislature over a foreign fishing vessel fishing within Ireland’s EEZ could only 
be under the umbrella of the relevant European legislation, in circumstances where 
the regulation of fishing exploitation is an exclusive competence of the European 
Union. It was submitted that there are no grounds for the Irish legislature creating 
disproportionately more onerous penalties for E.U. fishing vessels fishing illegally in 
the waters of the Irish EEZ compared with those detected of committing similar 
offences elsewhere in EU regulated waters, and any such provisions which overreach 
the penalty provisions contemplated by the EU regulation (in circumstances where the 
regulations are directly effective and do not require implementing legislation) must be 
ultra vires the requirements of European law. It was submitted that the forfeiture of 
the catch and gear, as an automatic statutory consequence of conviction on indictment 
of the relevant offence, is disproportionate having regard to the offending behaviour
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in question, the provisions of Council Regulation (EC) 1224/2009 and the control 
regime under the CFP.
33. Our attention was drawn to Recital 7 to Council Regulation (EC) 1224/2009, 
which provides:
“This Regulation should affect neither special provisions contained in 
international agreements or applicable in the framework of regional fisheries 
management organisations nor any national control provisions which fall 
within the scope of this Regulation but go beyond its minimum provisions, 
provided that such national provisions are in conformity with Community 
law”
34. We were also referred to Recital 9 which places particular emphasis on the 
introduction of a new, common approach, which ensures a "level playing field” for 
the fishing sector.
35. Our attention was also drawn to Recital 38 which emphasises the importance 
of a harmonious approach to sanctions for breach of European Community fisheries 
laws where it states:
“Since action taken following infringements of those rules differs widely from 
one Member State to another, thereby causing discrimination and unfair 
competition rules for fishermen and given that the absence of dissuasive, 
proportionate and effective sanctions in certain Member States reduces the 
effectiveness of controls, it is appropriate to introduce administrative 
sanctions in combination with a point system for serious infringements to 
provide a real deterrent."
36. Also, we were referred to Recital 39, and Article 92, in respect of the 
establishment of a points system for serious infringements.
37. It was submitted that s.28(5) of the Act of 2006 offends the principle of 
proportionality under the treaties of the European Union and Article 49(3) of the 
Charter of Fundamental Rights.
38. In support of this argument we were referred to Case 240/78 ("The Atalanta 
Case ") [1979] ECR 2137, particularly paragraphs 15 and 16 of the judgment; Case 
203/80 Casati [1981] ECR 2595, particularly paragraph 27 of the judgment; Case C- 
262/99 Louloudakis [2001] ECR I - 5547, particularly paragraph 67 of the judgment; 
the decision of the Court of Justice (First Chamber) in its judgment delivered on 9 
February 2012 in case C-210/10 entitled Mar ton Urban v Vam- es Penziigyorseg
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Eszak-alfoldi Regionalis Parancsnoksaga, particularly paragraphs 23 and 24, and 53 
to 55 thereof; Case C-188/09 Profaktor Kulesza, Frankowski, Jozwiak, Orlowski 
[2010] ECR 1-7639, particularly paragraph 29 thereof; and Case C-255/14 Robert 
Michal Chmielewski v Nemzeti Add- es Vdmhivatal Del-alfoldi Regionalis Vam- es 
Penziigyori Foigazgatosaga, particularly paragraphs 21 to 23 thereof..
39. The appellant contends that the Control Regulation, establishes a specific 
imperative on the national authorities to, when sanctioning breaches of the 
Regulation, to do so in a way which produces results which are “proportionate to the 
seriousness of such infringements''’ and which, while serving to “effectively deprive 
those responsible of the economic benefit derived from their infringement ”, do so
“without prejudice to the legitimate right [of such persons] to exercise their 
profession ”, Hence article 90.2 of the Control Regulation requires that the sanctions 
“shall ensure that a natural person having committed or a legal person held liable for 
a serious infringement is punishable by effective, proportionate and dissuasive 
administrative sanctions
40. The appellant complains that there is no provision for a consideration of the 
particular circumstances of the offending provided for in the mechanism in the Irish 
legislation for the imposition of the forfeiture of catch and gear. He contends that on 
the particular facts of this case, a momentary delay in the freezing process of the fish 
between the grading machine and the freezer might be enough to merit conviction, 
with no provision for a consideration of the extent to which the particular protected 
interests the subject matter of the regulation were injured or damaged by the 
offending behaviour. He maintains there is no provision for adjusting the sanction to 
the seriousness of the infringement. Further, no provision is afforded to the potential 
effects on the livelihood of the accused, as a result of the said forfeiture.
41. The appellant says that the failure to provide the sentencing court with the 
power to adjust the penalty, as regards the financial consequences of the loss of the 
catch and gear, according to the factual circumstances of the prescribed infringement, 
also renders the Irish provision incompatible with the Control Regulation and general 
principles of European law, in circumstances where the Irish State was precluded 
from maintaining such a provision, given the terms of the said regulation.
42. In reply, the respondent has referred us to several European cases dealing with 
the principle of proportionality, including Case C-354/95 The Queen v The Minister 
for Agriculture, Fisheries and Food, Ex Parte National Farmers Union and Others,
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particularly paragraphs 51 and 55; Case T-180/00 Antipesca v Commission, paragraph 
78; Case C-94/05 Emsland-Staerke GmbHv Landwirtschaftskammer Hannover, 
particularly paragraph 53; Case No C-188/2011 Hehenberger v Republic of Austria ; 
Case C-443/2013 Reindl v Bezirkshauptmannshaft Innsbruck, particularly paragraphs 
38 to 43 inclusive; Case C-382/09 Stils Met SIA v Valsts, paragraph 44; and Case C- 
255/14 Robert Michil Chmielewski, particularly paragraphs 21 to 31 inclusive.
43. The respondent suggests that these judgments make clear that member states 
in providing a system of penalties under national law for breach of the relevant 
regulations:
(i) May do so by providing for criminal sanctions;
(ii) If a member state chooses to pursue such a method of enforcement, the 
member state is obliged to use measures which are “effective, proportionate 
and dissuasive ”;
(iii) Measures imposed by way of strict liability are not precluded;
(iv) Measures must be sufficient to ensure the proper regulation of those 
participating in the fishing industry;
(v) In principle such criminal sanctions may be accompanied by the forfeiture of 
fishing gear and the catch.
44. It was submitted that if a measure of national law is enacted which is 
disproportionate in the senses of being excessive and contrary to the Charter and the 
fundamental principles of EU law, there is jurisdiction vested in a national court to 
disapply that provision. That is a question for the national court. Where there is doubt 
a preliminary reference can serve to establish whether automatic forfeiture as 
provided for in s. 28(5)(b) of the Act of 2006 is precluded by the principles of 
proportionality enshrined in the Charter of Fundamental Rights and the fundamental 
principles of EU law.
45. While the appellant urges the referring court to find that the position under EU 
law is acte claire, and has submitted that a reference is unnecessary, we do not agree. 
We regard the law on proportionality to be highly nuanced and in the circumstances 
harbour considerable uncertainty and doubt as to the correct position under EU law. 
For these reasons we believe that it is appropriate to avail of the preliminary reference 
procedure.
46. For completeness, we also wish to state that we were referred by both sides to 
a number of Irish cases where the sanctioning and penalty provisions in domestic
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legislation regulating fisheries have been considered, and some cases in which 
mandatory sentencing provisions other than in the area of sea fisheries have been 
considered. The cases to which we were referred include Montemuino v Minister for 
Communications [2008] IEHC 157 and [2013] 4 I.R. 120; Martinez v Ireland 
(unreported, High Court, O’Neill J, 27th November 2008); O 'Sullivan v Sea Fisheries 
Protection Authority and others [2017] 3 IR 751; and Ellis v The Minister for Justice 
and Equality and others [2019] IESC 30. See Annex 4.
The question referred
47. 'in the context of the implementation of the Common Fisheries Policy and of 
the provisions of Article 32 of Council Regulation (EC) No 850/1998, and in 
the context of a criminal prosecution taken to enforce the provisions thereof, is 
a provision of National law which provides on conviction on indictment, in 
addition to a fine, for the mandatory forfeiture of all fish and all fishing gear 
found on board the boat to which the offence relates, compatible with the 
provisions of Council Regulation (EC) 1224/2009, and specifically Articles 89 
and 90 thereof, and the principle of proportionality under the treaties of the 
European Union and Article 49(3) of the Charter of Fundamental Rights?’*
Dated the 21st of January 2020.
Signed by the members of the Court of Appeal:
ThsJmnourable Mr Justice George Birmingham, 
TresidenUof the Court /)
The onetrfable Mr Justice John Edwards
TheHonourable MsJustice Aileen Donnelly