Opinion of the Advocate General — ECLI:EU:C:2023:487
Date: 2023-06-15
Language of the case: English
Subject matter: Agriculture and Fisheries;Fisheries policy
Procedure: Reference for a preliminary ruling
Origin: Ireland

summary, counsel stated that Art. 2(2) of the CFP set a clear mandatory 
provision that had to be achieved at the latest by 2020. The fact that the setting of the 
TAC at zero for various species in various areas of the ocean that were mixed 
fisheries, may mean the premature closure of that fishery, as a consequence of that 
provision, was not a ground on which the court could refuse to apply that provision of 
the CFP.
37. It was submitted that the court could not avoid interpreting Art. 2(2) in its 
ordinary and natural meaning just to avoid that consequence. If the consequence was 
to be avoided, that was a matter for the European politicians. They could amend Art.
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2(2) if they wanted to avoid a consequence that they regarded as unacceptable, or 
inappropriate.
38. It was submitted that the 2020 Regulation in setting TACs above the level 
recommended by ICES for achieving MSY for the species in question in the relevant 
fisheries, the Council had acted contrary to the clear provisions of Art. 2(2). The 2020 
Regulation was therefore invalid. As the national court did not have power to declare 
the measure invalid, the court should make a reference to the CJEU.
The respondent’s submissions
(al Mootness.
39. Mr. Toland SC on behalf of the respondent submitted that the court should 
decline to entertain the applicant’s application for a reference to the CJEU on the 
basis that the matter was entirely moot. The regulation which was alleged to be 
invalid, being Regulation 2020/123, was entirely spent. It had been replaced by a 
further regulation in 2021 and would soon be replaced by another regulation setting 
the TACs for 2022. In addition, the present action concerned a challenge to the 
legality of the fisheries management notices issued by the respondent. The notices 
specified in the amended statement of grounds, had all long since expired, as these 
notices only lasted for a month at a time. Counsel submitted that on the authorities 
which had been opened to the court by the applicant, it was well settled that the Irish 
courts will not entertain an action which has become moot.
40. Counsel stated that in Kriszan & Ors. v. Slovensko (case C-244/13), the CJEU 
had noted that the initiation of the reference process depended entirely on the national 
court’s assessment as to whether that reference was appropriate and necessary. It was
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submitted that that discretion enabled the court to refuse to refer a question to the 
CJEU on an issue that had become moot.
41. Counsel further submitted that the CJEU may refuse a request for a 
preliminary ruling in a number of circumstances, such as where the interpretation 
sought bore no relation to the facts of the main action, or its purpose; where the 
problem was hypothetical; or where the court of justice did not have available to it the 
factual or legal material necessary to give an answer to the questions asked.
42. It was submitted that in the present proceedings, where the contested notices 
were no longer in being, no challenge was necessary to resolve the application for 
certiorari. Moreover, the 2020 Regulation itself had been superseded. It was 
submitted that in these circumstances, the court should refuse to make the reference to 
the CJEU, as sought by the applicant.
(b) The validity of Regulation 2020/123.
43. In their written submissions, the respondent accepted that the TACs for the 
four species set out in Table 1 at El 7, in the statement of grounds, were set above the 
ICES catch advice.
44. However, counsel submitted that that was not the end of the matter. It was 
submitted that the applicant had adopted an overly simplistic approach to the 
interpretation of the CFP and the obligations cast on the Council under that regulation 
and under the Western Waters Regulation of 2019, when setting the TACs for 2020 
and beyond. It was submitted that the applicant had focussed solely on one 
subparagraph of one article in the CFP, to the exclusion of a number of important 
recitals in the CFP and a number of articles, both in that regulation and in the Western 
Waters Regulation, which had to be read together, in order to fully understand the
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extent of the legal obligation that was cast upon the Council when setting the annual 
TACs.
45. It was submitted that the CFP had to be inteiprcted in context. In particular, 
counsel referred to recital 6 of the CFP, which highlighted the need for measures of 
European law to be consistent with the commitments of the EU under various 
international instruments. Recital 7 provided that exploitation rates should be 
achieved by 2015. Achieving those exploitation rates by a later date should be 
allowed only if achieving them by 2015 would seriously jeopardise the social and 
economic sustainability of the fishing fleets involved. After 2015, those rates should 
be achieved as soon as possible and in any event no later than 2020. Where scientific 
information was insufficient to determine those levels, approximate parameters may 
be considered.
46. Counsel also referred to recital 8, which provided that management decisions 
relating to MSY in mixed fisheries should take into account the difficulty of fishing 
all stocks in a mixed fishery at MSY at the same time, in particular where scientific 
advice indicated that it is very difficult to avoid the phenomenon of “choke species” 
by increasing the selectivity of the fishing gears used. Appropriate scientific bodies 
should be requested to provide advice on the appropriate fishing mortality levels in 
such circumstances.
47. Counsel also referred to the provisions of Art. 2(5) of the CFP, which set out a 
number of objectives of the CFP. It provided that the CFP shall, in particular, 
gradually eliminate discards on a catch by catch basis; where necessary make the best 
use of unwanted catches; shall provide conditions for economically viable and 
competitive fishing capture and processing industry and land-based fishing related 
activity; shall contribute to a fair standard of living for those who depend on fishing
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activities, bearing in mind coastal fisheries and socio-economic aspects; take into 
account the interests of both consumers and producers and promote coastal fishing 
activities, taking into account socio-economic aspects.
48. Counsel submitted that in addition, the Council had to have regard to the fact 
that the landing obligation, as provided for in Art. 15 of the CFP, had fully come into 
effect as and from 1st January, 2019. Article 15 provided that all catches of species 
which are subject to catch limits, which are caught during fishing activities, must be 
brought and retained on board the fishing vessels, recorded, landed and counted 
against the quotas where applicable, except when used as live bait, in accordance with 
certain prescribed time-frames. All species subject to catch limits (i.e. managed under 
the TAC system) have been subject to the landing obligation since 1st January, 2019.
49. It was submitted that Art. 15 of the CFP provided that fishing opportunities 
allocated to Member States must ensure the relative stability of fishing activities of 
each Member State for each stock of fishery and that the interests of each Member 
State shall be taken into account when new fishing opportunities are allocated. Since 
the landing obligation in respect of all fish stock was introduced, fishing opportunities 
must be fixed taking into account the change from landings, to fixing fishing 
opportunities that reflect catches, on the basis that discarding of that stock will no 
longer be allowed.
50. It was submitted that the difficulties posed in relation to fixing TACs for 
mixed fisheries, together with the full implementation of the landing obligation had 
been recognised in the Western Waters Regulation of 2019. In particular, counsel 
referred to recitals 15, 16, and 17 therein. Article 17 provided that it was appropriate 
to establish the target fishing mortality (F) that corresponds to the objective of 
reaching and maintaining MSY at ranges of values which are consistent with
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achieving MSY (FMSY). Those ranges based on best available scientific advice, are 
necessary in order to provide flexibility to take account of developments in the 
scientific advice, to contribute to the implementation of the landing obligation and to 
take into account the characteristics of mixed fisheries.
51. The recital went on to provide that FMSY ranges should be calculated, in 
particular by ICES in its periodic catch advice. The recital further provided that based 
on the plan they should be derived to deliver no more than 5% reduction in long term 
yield compared to MSY. The upper limit of the range should be capped, so that the 
probability of the stock falling below Blim was no more than 5%. That upper limit 
should also conform to the ICES “advice rule”, which indicated that when the 
spawning biomass or abundance was in a poor state, F was to be reduced to a value 
that did not exceed an upper limit equal to the FMSY point value multiplied by the 
spawning biomass or abundance in the total allowable catch (TAC year divided by 
MSY Btrigger). ICES uses these considerations and the advice rule in its provision of 
scientific advice on fishing mortality and catch options. Counsel submitted that as far 
as mixed fisheries were concerned, it was clear from these provisions that the Council 
were given a margin of discretion when fixing the relevant TACs.
52. Counsel also referred to Art. 4(1) of the 2019 Regulation, which provided that 
fishing mortality, in line with the ranges of FMSY defined in Art. 2, shall be achieved 
as soon as possible, and on a progressive incremental basis by 2020 for the stocks 
listed in Art. 1(1), and shall be maintained thereafter within the ranges of FMSY, in 
accordance with that article. Article 4(7) further provided that fishing opportunities 
shall in any event be fixed in such a way as to ensure that there is less than a 5% 
probability of the spawning stock biomass falling below Blim.
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53. Counsel also referred to Art. 5 of the 2019 Regulation, which deals with the 
management of by-catch stocks. Article 5(1) provides that management measures for 
the stock referred to in Art. 1 (4) including, where appropriate, fishing opportunities 
shall be set taking into account the best available scientific advice and shall be 
consistent with the objectives laid down in Art. 3. Article 5(3) provides that in 
accordance with the Art. 9(5) of the CFP, the management of mixed fisheries with 
regard to stocks referred to in Art. 1 (4) of the 2019 Regulation, shall take into account 
the difficulty of fishing all stocks at MSY at the same time, especially in situations 
where that leads to a premature closure of the fishery.
54. It was submitted that when the CFP and the 2019 Regulation were read 
together, it was clear that they established a complex interlocking legal framework, 
under which the Council was obliged to take a considerable number of factors into 
account when considering the fixing of TACs for mixed fisheries. It was submitted 
that taking the single catch advice, as issued by ICES and applying that to the 
provisions of one article in the CFP, being Art. 2(2), was overly simplistic. It ignored 
the wider ramifications for the conservation of fish stocks, within the maintenance of 
a fishing industry in European waters.
55. Counsel referred to the ICES advice as given by the Working Group on Mixed 
Fisheries from its 2019 meeting (vol. 2, issue 93), which was exhibited at exhibit JK1 
to the affidavit of Josephine Kelly. Counsel submitted that the mixed fisheries 
analysis as carried out at section 3.5.2 of that report, made it clear that the Council 
could adopt a TAC that was within the range of FMSY. It was pointed out that the 
analysis specifically recognised that mixed fisheries catch scenarios could take 
specific management priorities into account, and the results indicated that it was not 
possible to achieve all single-species management objectives simultaneously.
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56. Counsel referred to the fact that the TACs awarded took account of the fact 
that they were allocated to mixed fisheries with unavoidable by-catches of certain fish 
stocks. For certain stocks, and in particular the zero advice stocks, the TACs made 
available to Members States were exclusively for by-catches in the relevant fisheries. 
That was specifically set down in the annual TAC and in the regulation.
57. It was submitted that if the recommended TAC in the ICES advice for single 
stock catch had been strictly adhered to, that would have resulted in the “choke 
species” phenomenon, which would have “choked” allowances for other species in 
mixed fisheries, resulting in the premature closure of the fishery. The TACs that had 
been set for the species in question had been set at a level, so as to avoid the 
consequences of “choke stock” in mixed fisheries. Had that not been done, it would 
have led to the premature closure of the fisheries in question.
58. It was submitted that in order to strike the right balance between continuing 
fisheries in view of the potentially severe socio-economic implications, and the need 
to achieve a good biological status for those stocks, taking into account the difficulty 
of fishing all stocks in a mixed fishery at MSY at the same time, the 2020 Regulation 
recognised that it was necessary to establish specific TACs for by-catches for those 
stocks.
59. The TACs provided for were purely in relation to by-catch and as a further 
precaution, the TAC for the main catch of haddock, had been set at lower than FMSY.
60. Counsel submitted that the CJEU had recognised in Kingdom of Spain v. The 
Council (case C-128/1 5), that the fixing of TACs in a mixed fishery was an extremely 
complex task, which involved the Council having to evaluate a complex economic 
situation. While the Council had to take account of available scientific, technical and 
economic advice when adopting conservation measures, that did not prevent the
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European Union legislature from adopting such conservation measures where there 
was no conclusive scientific technical and economic advice. The court further stated 
that fishery conservation measures need not be completely consistent with scientific 
advice and the absence of such advice, or the fact that it was inconclusive, could not 
prevent the Council from adopting such measures as it deemed necessary for 
achieving the objectives of the CFP: see paras. 46-53 of the judgment.
61. In conclusion, Mr. Toland SC submitted that the State’s position was that the 
provisions of the CFP, including Art. 2(2) upon which the applicant placed reliance, 
could not be read in isolation. They had to be considered in the context of the overall 
aims of the regulation and in the light of the other terms thereof. While the CFP 
endorsed a precautionary approach towards fish stock management, that had to be 
balanced against other factors referred to in the regulation, such as providing 
conditions for economically viable and competitive fishing capture; and ensuring a 
fair standard of living for those who depend on fishing activities, as well as the 
interests of both consumers and producers.
62. It was submitted that while the applicant argued that Art. 2(2) mandated an 
absolutist approach towards fisheries management, it failed to acknowledge that that 
had to be balanced against the socio-economic objectives in Art. 2(1), or the 
multifactorial context provided in Art. 2(5) of the regulation; or that Art. 2(2) itself 
contained language which was couched in terms of aims and normative objectives.
63. It was submitted that fundamentally, the application of the CFP had to be 
considered in context, having regard to its various aims and objectives and the 
complexity of managing by-catches and choke species. It was submitted that in the 
circumstances, when the CFP and the 2019 Regulation were read as a whole, it was 
clear that Regulation 2020/123 was in compliance with the terms thereof.
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Accordingly, it was submitted that there was no basis on which the court could hold 
that the regulation was invalid or unlawful. Therefore, the court should refuse to make 
a reference to the CJEU.
Conclusions
(a) The mootness issue.
64. Having considered the papers in this case and the arguments of counsel, the 
court is satisfied that the issues between the parties in relation to the legality of 
Regulation 2020/123 and the fishing management notices made thereunder, are moot, 
because the regulation itself and the relevant fishing management notices have 
expired and are no longer in force.
65. The court accepts the general statements in relation to the doctrine of 
mootness as set down in Goold v. Collins; Lofmmakin v. Minister for Justice, Equality 
and Law Reform; and P. V. (A minor) v. The Courts Service, as recently analysed and 
summarised by this court in its decision in Shields v. Central Bank of Ireland [2020] 
IEHC 518.
66. However, the doctrine of mootness, is not an absolute rule preventing the 
courts from deciding issues that have become moot. The court accepts the submission 
made by Mr. Devlin SC on behalf of the applicant that there are certain circumstances 
where, notwithstanding that the controversy has become moot, the court will proceed 
to give a decision in the case. Examples of this are where the issue involved concerns 
an issue of statutory interpretation and the procedure adopted by a statutoiy body in 
performing its duty under a statute: see O’Brien v. PIAB. Another example is where 
the issue involved in the case which has become moot, is one of general public 
importance, which is likely to arise in future cases. A further example is where the
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case that has become moot, was a test case and where there are other cases raising 
similar points pending before the courts. In each of these exceptional cases, it is 
appropriate for the court to proceed to give judgment in the matter, notwithstanding 
that the issue between the parties has become moot since the inception of the 
proceedings.
67. The court accepts the submission made by counsel on behalf of the applicant 
that a further exception that can arise is where the act or measure in dispute is limited 
in duration, such that it is not possible for a person affected by the order or measure to 
mount a legal challenge to it and bring it before the courts within the lifetime of the 
measure in question. If the court were to apply the mootness doctrine in a strict 
manner in such cases, it could effectively mean that such measures would be immune 
to challenge.
68. This ground of exception was recognised by Hardiman J. in his judgment in 
the Goold case where he stated as follows at p.26:
“In the United States, an issue is not deemed moot if it is ‘capable of 
repetition, yet evading review ’ a phrase devised in 1911 and constantly used 
thereafter, e.g. in Honig v. Doe 484 US 305 [1988J. This is said to be the case 
where '(1) the challenged action is in its duration too short to be fully litigated 
prior to its cessation or expiration and (2) there is a reasonable expectation 
that the same complaining party would be subjected to the same action again'. 
(See generally, Tribe op cit. page 349).
As might be expected from that formulation, such cases have tended to focus 
on time limited events such as election campaigns, pregnancy, (as in Roe v. 
Wade) and time limited court orders especially in the domestic violence area:'
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69. It is noteworthy that in Roe v. Wade [1973] 410 US 113, the plaintiffs 
challenge to the prohibition on abortion was heard two years after her baby was bom.
70. A similar approach was adopted by Murphy J. in Whelan v. Governor of 
Mountjoy Prison [2015] IEHC 273, which involved a challenge by a prisoner to the 
deprivation of one hour’s exercise in the open air, while he was detained in the 
Challenging Behaviour Unit of the prison as a punishment. By the time his case came 
on for hearing, he had served his period of punishment in the CBU. The respondent 
argued that the issue was therefore moot. Murphy J. noted that while the applicant had 
served his period of punishment in the CBU before the matter came on for hearing, 
there was nothing before the court to suggest that the applicant could not be subjected 
to further incarceration in the CBU during the remainder of his imprisonment. She 
stated as follows at para. 17: -
‘7/7 these circumstances, on the basis of both the Canadian and American 
tests, as approved by Hardiman J in Goold v. Collins, the Court is satisfied 
that the application is not moot. For that reason, it is not necessary for the 
Court to go further and consider whether this is one of the exceptions to the 
mootness rule where the Court will determine an issue despite the fact that it 
is moot, such as arose to an extent in O’Brien vP1AB [2007] 1 JR 328 and 
very directly in Okunade v. The Minister for Justice, Equality & Law Reform 
and Others [2013] 1 ILRM. In so holding, the Court is nonetheless conscious 
that were it to find this application moot, as night follows day further 
applications on this issue would emerge, and so had the Court been compelled 
to consider whether this case came within the exceptions to the moot rule, it 
might well have concluded that it does.''
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71. In light of these authorities, this Court is satisfied that the applicant’s 
challenge herein, while moot, should be allowed to proceed. The court has reached 
this conclusion for two reasons: firstly, the court is satisfied that given the limited 
duration of both the regulation and the fisheries management notices, it would not be 
possible for any applicant to challenge them before the Irish courts within the lifespan 
of the particular regulation or notice, given the delays existing in the Irish courts at 
present. Were the court to hold the issue moot, it would mean that both the Council 
regulation and the fisheries management notices were effectively immune from legal 
challenge. The court is satisfied that that would not be in the interests of justice.
72. The court is further supported in its conclusion herein by virtue of the fact that 
the Council is likely to fix TACs in the future that are above the zero rate advised by 
ICES. Accordingly, the issue that arises in this case, while moot in respect of the 2020 
Regulation, is likely to be a “live issue” in respect of other regulations issued by the 
Council in the future. Accordingly, it is desirable that a decision be reached on the 
general legality of such regulations in terms of their compliance with Art. 2(2) of the 
CFP.
73. Secondly, the court is satisfied that this case comes within the public interest 
exception to the rule on mootness. The court is satisfied that the issues raised by the 
applicant herein, raise issues of general public importance for two reasons: firstly, the 
application raises issues in relation to the conservation of fish stock, which are of 
fundamental importance to the citizens of the EU and secondly, the issues raised 
herein have enormous ramifications for the fishing industry in the Member States of 
the EU.
74. For the reasons set out herein, the court is satisfied that while the issues 
between the parties in relation to the 2020 Regulation and the fisheries management
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notices identified in the amended statement of grounds are now moot, this is an 
appropriate case in which to permit the applicant’s proceedings herein to proceed.
(h) Whether a reference should be made to the CJEU.
75. The parties were agreed that the threshold which the court has to apply in 
relation to whether it should make a reference to the CJEU, is whether the court has 
doubts as to the legal validity of the regulation under challenge: see decision in the 
Foto Frost case.
76. While a large amount of technical evidence was put before the court, the key 
legal issue which the court must determine, is whether Art. 2(2) of the CFP constitutes 
an overarching binding legal imperative, that had to be observed when the Council 
was fixing the TACs for 2020 and succeeding years; or whether, as argued by the 
respondent, it was merely one of a number of aspirational objectives, which the 
Council had to take into account, along with a great deal of other matters, both 
scientific and within the broader economic sphere, when setting TACs for 2020 and 
beyond.
77. There is considerable force in the argument put forward by the respondent, to 
the effect that in fixing the TACs, the Council was obliged by the CFP and the 
Western Waters Regulation to have regard to a large range of matters, including the 
difficulty of providing TACs designed to achieve MSY for one species, when that 
species is caught in a mixed fishery, together with the allied problem of avoiding a 
situation where “choke species” would force the premature closure of a fishery.
78. The Council also had to take account of the fact that the landing obligation had 
become fully operational by lsl January, 2019. This meant that all fish had to be 
landed and counted as part of the catch, even if not the primary or intended object of
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the fishing effort. There was no longer any provision for discards, which did not have 
to be counted as part of the catch.
79. In addition, the Council was also specifically obliged to have regard to the 
economic impacts that fixing TACs could have on Member States and in particular, 
on coastal communities, who depended greatly on the income from commercial 
fishing. The court accepts that in fixing the TACs, the Council had to have regard to 
all these matters.
80. While the respondent submitted that the ICES advice, while independent and 
highly regarded, was not the only advice that could be taken into account and in this 
regard referred to the advices furnished in January 2019 by the Scientific, Technical 
and Economic Committee for Fisheries (STECF), it was not seriously contended that 
there was any other scientific advice, which challenged the single catch advice issued 
by ICES in respect of the three species in the fisheries referred to by the applicant.
81. The court finds that the ICES advice furnished in 2019 in respect of the 
allowable single catch for the species in question, which advised that same should be 
set at a zero rate in order to achieve MSY in 2020, constituted the best available 
scientific advice at that time.
82. As an alternative submission, Mr. Toland SC submitted that the advice of 
ICES on mixed fisheries, clearly gave a range of catch, which was permissible. The 
court does not accept that submission for the following reasons: it is clear, from the 
terms of that advice, that ICES was not stating that in a mixed fishery, the various 
TACs referred to in that advice, could be permitted in order to achieve MSY of the 
relevant by-catch. Rather, the advice was setting out on a scientific basis, the number 
of a particular by-catch (in this case cod) that would likely be caught if another 
species (in this case haddock) was the main target catch. The ICES advice on mixed
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fisheries, merely set out the number of cod that would likely be caught as by-catch, if 
haddock was caught at particular levels.
83. It followed from that advice, that the lower the quantity of haddock that was 
caught, the lower the quantity of cod that would be caught as unavoidable by-catch. 
The court is satisfied that in giving that advice, ICES was not stating that allowing a 
particular quantity of cod to be caught as by-catch, would achieve MSY for cod in 
that fishery.
84. In the course of the hearing, it was asserted by the applicant that in failing to 
adhere to the single catch advice given by ICES, to the effect that in order to achieve 
MSY, there should be a zero TAC for the three species in the specified fisheries, the 
Council was putting the survival of these species in the affected fisheries, in great 
jeopardy. The court does not accept that that gives a fair picture of the overall state of 
play on a year by year basis under the CFP m recent years.
85. The court notes that in the STECF report of January 2019, monitoring the 
performance of the CFP, it noted in its conclusions that the latest results were 
generally in line with those reported in 2017 and 2018, which confirmed a reduction 
in the overall exploitation rate for the North East Atlantic. On average, the stock 
biomass was increasing and stock status was improving. However, it went on to note 
that based on the set of assessed stocks included in the analysis, many stocks 
remained over fished and/or outside safe biological limits, and that progress achieved 
until 2017 seemed too slow to ensure that all stocks would be rebuilt and managed 
according to FMSY by 2020.
86. In its state of play analysis report issued by the Commission in June 2019, it 
was noted that in the North Atlantic and adjacent areas, pressure on fish stocks
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(F/FMSY) showed an overall downward trend over the period 2003-2017, with the 
median fishing mortality stabilised at 1.0. The report went on to note as follows:
“TACs are one of the main fisheries management tools. In the Northern 
Atlantic and adjacent areas, the Commission proposed TACs in line with or 
below FMSY for 2019, for all the 76 TACs, for which FMSY advice was 
available. This was not possible for 5 TACs for which the International 
Council for the Exploration of the Seas (ICES) gave zero tack advice, because 
doing so would have led to choke situations with serious socio-economic 
impacts, and where it was decided to maintain by-catch TACs at low levels. 
The Council set 59 TACs in line with FMSY, which corresponds to three 
additional TACs compared to 2018”
87. The report noted that in relation to biomass trends in the Northern Atlantic and 
adjacent areas, the number of stocks within safe biological limits had almost doubled 
from 15 in 2003 to 29 in 2017 (an increase of 2% from 2016), with the largest 
increase in the Bay of Biscay and the Iberian waters - from 2 to 8 stocks within safe 
biological limits. The overall biomass volume had continued to develop positively, 
increasing by around 36%.
88. Thus, it does not appear to the court, that the TACs fixed in the years prior to 
2020, have put the existence of species in jeopardy; however, it is undoubtedly true 
that MSY for the reference species in these fisheries, has not yet been achieved.
89. Before deciding the central issue in this case, the court should set out the 
canons of interpretation that the court is obliged to adopt when interpreting a measure 
of EU legislation.
90. The court accepts that in interpreting measures of European law, the CJEU has 
adopted three main approaches: (i) the literal or textual approach; (ii) the schematic
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approach; and (iii) the teleological approach. Veiy often, these approaches to 
interpretation are used simultaneously. The literal and textual approach is well-known 
in the common law world, where the words are given their ordinary and natural 
meaning. The rationale for the literal and textual approach is that where words are 
perfectly clear in their meaning, they should not be distorted under the pretense of 
interpretation. Legal certainty and legitimate expectation are features of European 
law, principles which underlie the rationale of the literal approach. In United Kingdom 
v The Commission (Case C - 209/96) the CJEU stated as follows at para. 35:
“The first point to be borne in mind here is the need to ensure legal certainty, 
which means that rules must enable those concerned to know precisely the 
extent of the obligations which they impose on them (see, to that effect, Case 
348/85 Denmark v Commission [1987] ECR 5225, paragraph 19). The 
Commission thus cannot choose, at the time of the clearance ofEAGGF 
accounts, an interpretation which departs from and is not dictated by the 
normal meaning of the words used (see, to that effect, Case 349/85 Denmark v 
Commission (1988) ECR 169, paras. 15 and 16).”
91. A further rationale for the literal approach has been that if the words in 
question are clear in their meaning, it is not for the courts to give them a different 
meaning, as that would involve the courts in carrying out a function entrusted to the 
legislature: see Hauptzollamt Neubrnadenburg v Leszek Labis (Case C-310/98 & C- 
406/98), where the CJEU stated as follows;
“Whatever the reasons which might be put forward for requiring, as the 
French, Netherlands and Finnish Governments and the Commission have 
done, objective proof of the place where an offence was committed, the Court 
is not entitled to assume the role of the Community legislature and interpret a
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provision in a manner contrary to its express wording. It is for the 
Commission to submit proposals for appropriate legislative amendments to 
that end.”
92. The second approach adopted by the CJEU is the schematic approach. This 
provides that the meaning of words and expressions are to be considered in the 
context of the provision in which they appear, but also by reference to how that 
provision exists in the scheme as a whole. Interpretations that are consistent with the 
identified scheme are preferred over interpretations that are not. A particular 
interpretation can be tested by examining the logical effects on related provisions. The 
same word in the same measure or related provision tends to be given the same 
meaning. Where a particular interpretation would render some other provision 
nugatory, whereas an alternative would not, the alternative may be preferred.
93. Finally, there is the teleological approach. This approach is used to secure the 
objectives of the treaties and legislation. Put at its simplest, the court will seek the 
interpretation which best serves the purpose for which a provision was enacted. This 
approach is underlined by the principle of effectiveness, or effet utile. The source for 
identifying the objective, purpose or scheme, is typically the legislation itself, related 
legislation and the treaties.
94. It has been noted that the teleological approach has three basic effects. First, 
alternative interpretations may be evaluated by reference not only to the text, but by 
reference to identified objectives and the consequences that arise from each.
Secondly, the literal meaning may be departed from where it is inconsistent with, or 
fails to give effect to, the identified objective. Thirdly, where an enactment is silent on 
a particular question, interpretations consistent with the purpose may be readily 
supplied by the teleological approach.
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95. In HMIL Ltd v Minister for Agriculture (Unreported, High Court, 8lh February, 
1996), the following definition of the operation of the teleological approach as 
furnished by Schermers & Waelbroeck in their textbook ‘Judicial Protection in the 
European Communities’, 5th edition, (1992) at paragraph 29, was cited with approval: 
'’'’Although at first the Court [The European Court of Justice] was more strict, 
after gradually establishing its position it increasingly used interpretations 
based on the purposes of the Community treaty. It does not rely merely on the 
wording, the background or even the context of the provisions concerned, but 
chooses the interpretation which best serves the purpose for which the 
provision was made. For this type of interpretation the expression "effete 
utile”, “purposive”, ‘function” and “teleological” interpretation are used. It 
is employed either for the interpretation of Community treaties or for that of 
secondary Community law. In the former case the expression “constitutional 
interpretation” may be used in order to stress the treaties, the constitution of 
the Communities, are the basis for this interpretation. A legal order is 
developing out of the constitution, and in its constitutional interpretation the 
Court interprets the legal order as it has evolved and in such a way that it may 
fulfill its function more efficiently. The spirit and the purpose of the 
constitution form the core of this interpretation. As a similar kind of 
interpretation is used for secondary Community law, the expression 
“teleogolical interpretation ” seems more appropriate as a general 
denomination."
.... Teleogolical interpretation is used Jar three purposes:
(1) to promote the objective for which the rule of law was made;
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(2) to prevent unacceptable consequences to which a literal interpretation 
might lead, and
(3) to fill gaps which may otherwise exist in the legal order. ”
96. It should be noted that the High Court decision in that case was overturned on 
appeal to the Supreme Court, following a reference to the CJEU. However, the 
statement of law cited above, was not questioned in the appeal judgment.
97. Notwithstanding the flexibility that is afforded to the court by the adoption of 
these approaches to the interpretation of measures of European legislation, the court is 
satisfied of the correctness of the submission made by Mr. Devlin SC on behalf of the 
applicant, to the effect that where the words are clear and unambiguous in their 
meaning, the court cannot adopt an alternative interpretation that is not open on a 
natural reading of the provision, in order to avoid consequences that the court may 
regard as unacceptable. For the court to do so, it would in effect be substituting its 
view as to the desirability of certain legislative measures, for that of the institutions of 
the EU, that are mandated under the treaties to enact European legislation.
98. The court accepts the submission made by Mr. Devlin SC, that when the 
words of EU legislation are clear, the court cannot adopt another interpretation of the 
legislation, because adopting the ordinary and natural meaning of the words may lead 
to consequences that some might regard as extreme, or undesirable.
99. Counsel for the applicant did not shy away from the fact that were the court to 
uphold the interpretation and effect of Art. 2(2) as propounded by the applicant and 
were the Council obliged to give effect to that article, it would, in circumstances 
where ICES had given a zero catch advice, lead to the elimination of fishing for those 
species and probably lead to the closure of those mixed fisheries, when the three 
species in question were unavoidable by-catch of other target species.
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100. It was submitted that if that was a consequence which the European 
Parliament and the Council wished to avoid, they were obliged to amend Art. 2(2) of 
the CFP. It was submitted that the national court could not ignore the provisions of the 
article, or adopt a strained interpretation of it, so as to avoid these consequences. The 
court accepts the general thrust of this submission, that the court cannot ignore any 
provisions of the regulation, nor apply a strained interpretation thereto, so as to avoid 
any consequences that may be regarded as being unpalatable. To do so, this court 
would effectively be usurping the role of the EU legislature.
101. Insofar as it had been argued that the TACs fixed for the three species in the 
2020 Regulation were only for by-catch, it was submitted that that was irrelevant. 
Article 2(2) refers to “all stock”. It was submitted that the article did not differentiate 
between catch or by-catch; nor did it make any exemption for by-catch. The court 
accepts the submission that Art. 2(2) does not contain any specific provision, much 
less an exemption for by-catch, from the provisions of that article.
102. Insofar as it may be thought that the TACs fixed for 2020 were at a very low 
level, such that a de minimis argument might be made in their favour, the court 
accepts the evidence submitted in the document that was handed into the court during 
the hearing, which showed that the TACs allowed for cod in 2020 represented 62% 
and 54% of the spawning stock biomass in the two affected fisheries; and for whiting 
the TAC represented 52% of the SSB in that fishery. Accordingly, the court holds that 
the relevant TACs set for 2020 cannot be excused on any form of de minimis 
argument.
103. Turning to the key issue in this case, the court is satisfied that the provisions of 
Art. 2(2) are clear. They place a binding obligation on the Council to fix TACs in
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accordance with the best available scientific advice to achieve MSY for all stock by 
2020 at the latest.
104. The best scientific advice for 2020, as issued by ICES in 2019, was to the 
effect that in order to achieve MSY for the three species concerned in the fisheries 
identified, there should be a zero catch set for that year.
105. The court is satisfied that Art. 2(2) represents a clear mandatory obligation on 
the Council when fixing TACs for 2020 and subsequent years. It is not merely an 
aspirational objective that should be achieved by that date. It is clear that it is a key 
objective of the CFP, which places a mandatory obligation on the Council from 2020 
onwards.
106. The high status of the provisions provided for in Art. 2(2) of the CFP, is 
shown by the fact that that article is referred to elsewhere in the CFP. In particular, 
Art. 9 which deals with the principles and objectives of multi-annual plans, provides 
that such plans shall contain measures to restore and maintain fish stocks above levels 
capable of producing MSY in accordance with Art. 2(2).
107. Article 16 of the CFP deals with fishing opportunities. Article 16(3) deals with 
new scientific evidence which shows that a significant disparity exists between the 
fishing opportunities that have been fixed for a specific stock and the actual state of 
that stock, in such circumstances, Member States having a direct management interest 
may submit a request to the Commission for it to submit a proposal to alleviate the 
disparity, while respecting the objectives set out in Art. 2(2). Article 16(4) provides 
that fishing opportunities shall be fixed in accordance with the objectives set out in 
Art. 2(2).
108. The Western Waters Regulation of 2019 also refers to Art. 2 of the CFP. 
Article 3(1) of the 2019 Regulation deals with the objectives of that regulation and
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provides that the multi-annual plan shall contribute to the achievement of the 
objectives of the CFP listed in Art. 2 of the CFP, in particular by applying the 
precautionary approach to fisheries management and shall aim to ensure that 
exploitation of living marine biological resources restores and maintains populations 
of harvested species above levels which can produce MSY. Article 4(3) of that 
regulation provides that in accordance with Art. 16(4) of the CFP, when the Council 
fixes fishing opportunities for a stock, it shall establish those opportunities within the 
lower range of FMSY available at that time for that stock.
109. The court is satisfied that interpreting both the CPF and the 2019 Regulation 
in their ordinary and natural meaning, it is clear that Art. 2(2) of the CFP is more than 
just an aspirational objective of the CFP. The court is satisfied that there is certainly 
an argument that it represents a mandatory ne plus ultra, that had to be achieved by 
2020 at the latest. It is against that interpretative backdrop that the court has serious 
doubts about the legality of Council Regulation 2020/123, having regard to the 
mandatory nature of Art. 2(2) of the CFP.
110. In these circumstances, the court is obliged to refer the issue to the CJEU for a 
determination as to the validity of Council Regulation 2020/123.
111. As the court has decided to make a reference to the CJEU, it cannot determine 
any of the other grounds of challenge raised by the applicant at this stage. In 
particular, the validity of the fishing management notices issued by the respondent, 
will depend to a very large extent on the legal validity of the regulation under which 
they were made.
112. The court will receive submissions from the parties on the terms of the 
question that will be referred to the CJEU pursuant to Art. 267 of TFEU.
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113. To that end, the parties will have four weeks to either agree a question to be 
referred to the CJEU, or to suggest their own wording for the reference, which 
submissions should be submitted in writing. In the event that the court thinks it 
necessary, the court will arrange a further oral hearing on the matter. The written 
submissions furnished by the parties, should deal with the form of the question to be 
referred to the CJEU and any other matter that may arise.