Information;Order — ECLI:EU:C:2022:191
Date: 2022-03-01
Language of the case: English
Court formation: Eighth Chamber
Subject matter: Agriculture and Fisheries;Right of establishment;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: Ireland

C-493/21 -1 
COURT OF APPEAL
IN THE MATTER OF ARTICLE 267 OF THE TREATY ON THE 
FUNCTIONING OF THE EUROPEAN UNION AND 
IN THE MATTER OF A REFERENCE TO THE 
COURT OF JUSTICE OF THE EUROPEAN UNION
BEFORE ---------CUrJaoREFfI--------
THE PRESIDENT Luxembourg
^ 1 1. 08. 2021
MR. JUSTICE EDWARDS ^
MS. JUSTICE DONNELLY
APPEAL NO 214/15
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC
PROSECUTIONS
RESPONDENT
CURIA GREFFE
***
AND
K.H
APPELLANT
ORDER DATED THE 27th DAY OF JULY 2021 
FOR REFERENCE TO THE
COURT OF JUSTICE OF THE EUROPEAN UNION PURSUANT TO 
ARTICLE 267 OF THE TREATY
The appeal of the Appellant against the severity of a sentence 
imposed on him by the Cork Circuit Criminal Court on the 27th day of July 2015 
following his conviction by a jury on the 16th day of June 2015 of the offence of 
carrying on board a sea fishing vessel within the exclusive fishery limits of the 
State (ie Ireland) equipment prohibited by Article 32(1) of Council Regulation 
(E.C.) Number 850/98 in contravention of Statutory Instrument No. 197/2013
-4 - 
COURT OF APPEAL
(otherwise known as the Sea Fisheries (Technical Measures) Regulations 2013) 
contrary to s.14 of the Sea Fisheries and Maritime Jurisdiction Act 2006 coming 
before the Court this day
And on reading the Notice of Appeal and the transcript of the 
proceedings in the court of trial and the submissions on behalf of the respective 
parties and the Judgment of the Court of Justice of the European Union dated the 
11th day of February 2021 (Preliminary Reference C77/20
And on hearing Counsel for the Appellant and Counsel appearing for 
the Director of Public Prosecutions
THE COURT HAS DECIDED TO REFER to the Court of Justice 
of the European Union pursuant to Article 267 of the Treaty on the Functioning of 
the European Union as set out in the said Reference dated the 27th day of July 2021 
the question set out in paragraph 20 of said Reference and request the said Court of 
Justice to give a preliminary ruling thereon
AND IT IS ORDERED that the further hearing of the said appeal do 
stand adjourned until after the said Court of Justice shall have given its preliminary 
ruling on the said question
OWEN DUFFY
REGISTRAR OF THE COURT OF APPEAL
Conways Solicitors for the Appellant
Chief Prosecution Solicitor for the Director of Public Prosecutions
CURIA GREFFE 
Luxembourg
1 1. 08. 2021
THE COURT OF APPEAL
Court of Appeal Record No: CA 214/15 
Cork Circuit Criminal Court Record No: CYDP 0053/2015
Birmingham P. 
Edwards J. 
Donnelly J.
BETWEEN/
THE PEOPLE AT THE SUIT OF 
THE DIRECTOR OF PUBLIC PROSECUTIONS
Prosecutor/Respondent
V
K. M.
Defendant/Appellant
REQUEST FOR A FURTHER PRELIMINARY RULING 
ARTICLE 267 TFEU
To:
The Registrar,
Court of Justice of the European Union 
L-2925 Luxembourg
The Court of Appeal of Ireland (The President, Mr. Justice George Birmingham with Mr 
Justice John Edwards and Ms Justice Aileen Donnelly) hereby refers the questions set out at 
paragraph 20 below to the Court of Justice for a preliminary ruling in accordance with Article 
267 TFEU.
Piirlics <o (he Case:
1. The reference arises in the context of an appeal to the referring court against the severity 
of a sentence imposed in criminal proceedings. This request comprises a second reference, 
following on from that made by this court dated 21st January, 2020 which was assigned 
Record Number C-77/20-1 by the Court of Justice of the European Union.
2. As detailed in the first reference, the defendant in the proceedings at first instance, and 
the appellant before the referring court, is Mr K.M., a Dutch national, and whose address for 
service in Ireland is care of Conways Solicitors, Conway House, 35 South Terrace, 
Ballintemple, Cork, T12 E76X, Ireland.
3. The prosecutor in the proceedings at first instance, and the respondent before the referring 
court, is the Director of Public Prosecutions ("the DPP"), who brings the proceedings on behalf 
of the people of Ireland. The DPP may be contacted care of The Chief Prosecution Solicitor, 
Office of the Director of Public Prosecutions, Infirmary Road, Dublin 7, D07 FHN8,
Ireland.
4. For convenience the defendant/appellant will hereinafter be referred to simply as "the 
appellant" and the prosecutor/respondent will be referred to simply as "the respondent”.
The background to the first reference which set out the subject matter of the national court 
proceedings and the relevant findings have been summarised in the previous reference and 
are not produced in this second reference which is essentially a request for a clarification in 
respect of the previous ruling of the Court of Justice. For the convenience of the Court, the 
previous reference is appended to this reference as “Appendix One”.
Background necessitating the Second Reference.
5. Briefly stated, the issue between the parties relates to the compatibility of a provision of 
national (Irish) law, with the provisions of Council Regulation (EC) 1224/2009 (hereinafter the 
“Control Regulation”), and the principle of proportionality under the treaties of the European 
Union and Article 49(3) of the Charter of Fundamental Rights. The relevant provision of Irish 
law is section 28 of the Sea Fisheries and Maritime Jurisdiction Act, 2006 (hereinafter “the Act”), 
which provides for the enforcement of the provisions of the Control Regulation. Section 28 
subsection 5(b) provides that, when a person acting as Master of a fishing vessel is convicted on 
indictment of particular offences contrary to the provisions of the Act, in addition to any fine, 
prison sentence or other penalty, that any fish and fishing gear found on the boat to which the
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offence relates or in any other place where they may be are, as a statutory consequence of the 
conviction, forfeited. The appellant contends that, given that no discretion is vested in the 
sentencing court to mitigate or vary the confiscation and forfeiture of the fish and fishing gear, 
that it is not possible to ensure that the sanction is proportionate and the provision of national law 
is accordingly incompatible with European Union law. The respondent contends that such an 
automatic penalty is compatible with European Union law.
6. In light of the controversy above, and having regard to the provisions of Article 267 
TFEU and the need for uniform application and interpretation of European law, this court referred 
the following question to the Court:
"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?'
7. The Court of Justice furnished, by way of judgment delivered on 11th February, 2021, the 
following answer to the question posed above:
Articles 89 and 90 of Council Regulation (EC) No 1224/2009 of 20 November 2009 
establishing a Community control system for ensuring compliance with the rules of the 
common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) 
No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, 
(EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 
1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 
1966/2006, read in the light of the principle of proportionality enshrined in Article 49(3) of 
the Charter of Fundamental Rights of the European Union, must be interpreted as meaning 
that, subject to the verifications which it is for the referring court to carry out, they do not 
preclude a national provision which, to penalise a breach of Article 32 of Council 
Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources 
through technical measures for the protection of juveniles of marine organisms, as amended 
by Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 
March 2013, provides for not only the imposition of a fine but also the mandatory forfeiture
3
of the catches and the prohibited or non-compliant fishing gear found on board the vessel 
concerned.
Queries which arise on foot of the answer furnished by the Court.
8. Having regard to the factual background and legal framework operating in the member 
State referring the request for a preliminary ruling, as outlined in the reference, a number of 
issues arise in respect of the answer furnished by the Court which are summarised below and 
followed by an analysis of certain elements of the Court’s judgment to give context to the 
referring court’s further request for a ruling:
A. The answer furnished by the Court finds that a national provision which provides for a 
penalty of, in addition to a fine, the mandatory forfeiture of the catches and the prohibited or 
non-compliant fishing gear found on board the vessel concerned is compatible with the 
Control Regulation and EU law but it makes this subject to the verifications which it is 
for the referring court to carry out. The reference to “verifications which it is for the 
referring court to carry out” is not understood where, under the relevant provision of Irish 
law, the sentencing judge has no power to vary the terms of mandatory forfeiture. While the 
reference to the referring court carrying out verifications is understood to be co-extensive 
with the sentencing court, having regard to the absence of any jurisdiction in the sentencing 
court to vary the terms of the mandatory forfeiture, it is unclear whether it is suggested that 
the referring court, in this case the Court of Appeal of Ireland, should review the 
proportionality of the mandatory forfeiture. If this is the case, there is no provision in Irish 
law for an appellate court to exercise a jurisdiction above and beyond that of the sentencing 
court at first instance and indeed same would be contra legem.
B. The relevant provision of national law, s.28(5)(b) of the Act of 2006, does not provide for 
the mandatory forfeiture of only the prohibited or non-compliant fishing gear and the catch 
obtained as a result of the use of that prohibited or non-compliant fishing gear, but rather it 
provides for the mandatory forfeiture of all fish and all fishing gear found on board the boat. 
In other words, there is no requirement for there to be a causal link between the offending 
behaviour and the gear or catch forfeited. All gear on board the boat is forfeit, whether it 
was prohibited or non-compliant or not, and all the catch is forfeit, whether it was caught as 
a result of the use of the prohibited or non-compliant gear or by reason of the prohibited 
behaviour. The referring court understands from the ruling of the Court of Justice that its 
ruling is premised on the basis that only the prohibited and non-compliant gear and the
4
catch that resulted from the use of that gear catch is subject to the mandatory forfeiture. The 
referring court seeks clarification as to whether its mistaken belief as to the terms of the 
Irish legislation may have influenced the Court of Justice’s answer.
C. In the course of the Court of Justice’s judgment, reference is made to the offending
behaviour constituting a “serious infringement” as well as to the provisions of the Control 
Regulation and Regulation (EC) No 1005/2008 (hereinafter referred to as the “IUU 
Regulation”) relating to such infringements. No determination was made in the sentencing 
court that the offending conduct constituted a serious infringement, raising a doubt whether, 
in circumstances where the relevant conduct might not be considered a serious 
infringement, whether mandatory forfeiture of catch and gear as provided for by the Act 
would still be considered proportionate under the terms of the Control Regulation and 
Article 49(3) of the Charter of Fundamental Rights.
The jurisdiction of the Sentencing Court, or the Referring Court on anneal, to carry out
verifications in the context of imposing a mandatory forfeiture
9. The Court of Justice refers, at paragraph 32 and 33 of its judgment, to the provisions of 
Articles 89 and 90 of the Control Regulation, which require an evaluation of the circumstances of 
the illegal conduct, in order to determine the proportionality of the sanction imposed. At 
paragraph 36 it confirms that in the absence of harmonisation, it is for the Member States to 
determine what sanctions are appropriate, subject to the requirements of EU law, but that they 
must not go beyond “what is necessary in order to attain the objectives legitimately pursued by 
that legislation ” (paragraph 37) and that the “severity of the sanctions must be commensurate 
with the seriousness of the breaches for which they are imposed “ (paragraph 38). At paragraph 
39 it sets out that:
Whilst it is for the referring court to decide whether, in this instance, in relation to the 
infringement committed by K. M., the mandatory forfeiture of catches and prohibited or 
non-compliant fishing gear, in addition to a fine, is proportionate to the attainment of the 
objective legitimately pursued by the prohibition, laid down in Article 32(1) of Regulation 
No 850/98, relating to grading equipment....
From the above paragraphs, it seems clear that the Court of Justice understands the referring 
Court (by which presumably it means the sentencing court at first instance, or a Court of Appeal, 
such as the actual referring court, when re-sentencing where it has quashed the sentence imposed
5
at first instance having identified an error of principle by the court below) to have the power to 
intervene, or modulate the terms of the mandatory forfeiture of catches and gear. This is not the 
case in that Irish law does not vest any discretion in a sentencing court at first instance, or in an 
appellate court (such as the referring court) to whom such a sentence may be appealed, to review 
mandatory sanctions required to be imposed by statute, and so to vary the effects of the said 
mandatory forfeiture of the entirety of the catch and gear. The relevance or otherwise of Article 
90 (2), (3) and (4) to a regime that depends exclusively on the criminal law for enforcement 
purposes is unclear in that Article 90(5) references the fact that Member States ‘alternatively’ 
may use effective, proportionate and dissuasive criminal sanctions.
10. At paragraph 51 of the Court of Justice’s judgment, reference is made to the sanction 
being “subject to the verifications which it is for the referring court to carry out”. The issue in 
this reference is that, after conviction on indictment, the sentencing court has no role or function 
in respect of the extent of the confiscation and forfeiture. It appears the Court of Justice sees a 
discretion as being vested in the sentencing court (or in the referring court on appeal) to intervene 
and moderate the impact of the confiscation and forfeiture in that at paragraph 52 of the judgment 
it says that the mandatory forfeiture of catches and prohibited or non- compliant fishing gear is 
necessary "subject to verifications concerning the overall level of the sanctions and 
accompanying sanctions under Irish law, which it is for the referring court to carry out
11. Notably the Court of Justice makes further reference at paragraph 54 to an obligation on 
the national court “to assess the possible impact of the sanction on the offender as regards his or 
her legitimate right to exercise a profession, in accordance with Article 89(2) of Regulation No 
1224/2009”. This reference is assumed to be in the context of ensuring that the administrative or 
punitive measures permitted under national legislation must not go beyond what is necessary in 
order to attain the objectives legitimately pursued by that legislation (paragraph 37 of the Court’s 
judgment) and further ensuring that the severity of the sanctions must be commensurate with the 
seriousness of the breaches for which they are imposed, in particular by ensuring a genuinely 
dissuasive effect, while respecting the general principle of proportionality (paragraph 38 of the 
Court’s Judgment). The issue which again arises is that the confiscation and forfeiture of the 
catch and gear is mandatory, and the sentencing court has no power to consider the circumstances 
of the offender, or the offence, and moderate the extent or effects of the forfeiture as a 
consequence of the same.
12. Finally, in the Court’s concluding paragraph 56, it finds that Articles 89 and 90 of 
Regulation No 1224/2009, read in the light of the principle ofproportionality enshrined in Article 
49(3) of the Charter do not preclude a national provision which provides for not only the
6
imposition of a fine but also the mandatory forfeiture of the catches and the prohibited or non- 
compliant fishing gear found on board the vessel concerned. However this is made subject to the 
verifications which it is for the referring court to carry out. As previously alluded to, and as may 
be understood from the term “mandatory forfeiture”, the forfeiture of the catch and gear is an 
automatic consequence, and obligatory under Irish statute law, once a conviction has been 
recorded for a relevant offence following a trial on indictment and no authority, administrative or 
judicial, has the power to moderate or vary the same. This is so regardless of any other penalty 
that might also be imposed, e.g., a fine, and in respect of which there may be discretion. The 
question therefore arises in the circumstances of the ruling of the Court of Justice of the relevance 
of the provisions of Article 90 to a regime which depends exclusively on the enforcement of the 
criminal law and whether, in the absence of a power vested in the sentencing or referring court to 
carry out this process of verification, is the application or operation of the provision of Irish law 
precluded by the terms of the Regulation above, and those of the Charter, EU law and its general 
principles?
The Forfeiture of the fishing gear is not limited to “prohibited and non-comnliant gear” but
includes all gear on the vessel, and elsewhere.
13. There are frequent references through the judgment of the Court of Justice to the use of 
"prohibited and non-compliant fishing gear ”. This reference is also repeated in the answer to the 
referring court’s question. Furthermore, reference is made to there being a link between the 
subject matter of the confiscation and forfeiture order, and the offending behaviour triggering the 
same. In this regard, at paragraph 34 of the Court of Justice’s judgment, it states “it is clear from 
Article 90(3) of Regulation No 1224/2009 that the Member States are required to impose a 
sanction that is effectively dissuasive and, as appropriate, calculated on the value of the fisheries 
products obtained by committing a serious infringement'’' suggesting the need for a link between 
the activity in breach of the Regulation and the fisheries products obtained as a result. This link is 
also suggested at paragraph 45 of the Court’s judgment where it is suggested that the forfeiture of 
catches "has the effect of depriving the persons responsible for the infringement of the undue 
economic benefit derived from that infringement", again suggesting a causal link between the 
infringement and the catch illegally derived from the same.
14. The Court of Justice appears to make further reference to the requirement for a link 
between the fruits of the unlawful activity and the penalty at paragraph 53 where it states:
"Therefore, such a sanction is consistent with the criteria laid down in Article 89(2) of
Regulation No 1224/2009, stating that those responsible must be effectively deprived of
1
the economic benefit derived from their infringement and that the sanctions must be 
capable ofproducing results proportionate to the seriousness of such infringements, 
thereby effectively discouraging further offences of the same kind".
This raises the query as to whether, in order to be proportionate, the sanction should extend only 
to the “fruits” of the unlawful behaviour, or the “economic benefit derived from their
infringement".
15. As the Court of Justice will recall, section 28(5)(b) specifies that the subject matter of the 
forfeiture order shall be:
"any fish and fishing gear found on the boat to which the offence relates or in any other 
place where they may be.... ”
This provision has been determined by the Irish courts as extending to all fish, and all fish gear 
found on the boat, the qualifying words “to which the offence relates" being considered to apply 
to the boat rather than the fish or gear.
The si uni lie mice of I he seriousness of tlie infringement
16. Reference is made, throughout the judgment delivered in answer to this court’s question, 
to the provisions of the IUU Regulation, and to the sanctions appropriate for “serious 
infringements”. This raises a query for the referring court in that no finding was made by the 
sentencing court that the offence was a “serious infringement” within the definition of the same in 
the IUU Regulation, and where no specific offences relating to IUU fishing were introduced into 
Irish law after the coming into effect of Regulation (EC) No 1005/2008. The query relates to 
whether there should be any difference in the court’s approach to the application of the 
proportionality test and automatic and mandatory confiscation of all catch and gear where (a) the 
offending conduct comprises a serious infringement and (b) where it is does not comprise a 
serious infringement of the provisions of the Control Regulation.
17. The referring court notes, again at paragraph 54 of the judgment of the Court of Justice, 
the necessity for the sanctions to be proportionate to the seriousness of the infringement, and this 
may raise the question as to what the position must be where the same forfeiture order is applied, 
irrespective of the seriousness of the infringement. This may be considered important, in 
circumstances where it is noted that KM submitted, in his written submissions to the court as was 
noted in the judgment, “that forfeiture of the catch and prohibited or non-compliant fishing gear 
would have very serious consequences for his reputation and career, that he did not set out 
deliberately to infringe the rules in question with a view to procuring a profit therefrom and that
8
he had not committed other offences previously ”, and where no submissions were made to the 
sentencing court in respect of the forfeiture order, where it had no discretion to vary the terms of 
the same.
18. The referring court notes, at paragraph 51 of the Court of Justice’s judgment, that the 
Court appears to accept a submission by Ireland, that the prosecution of an offence on indictment 
may constitute a determination by the Irish authorities as to the seriousness of the infringement. 
While a decision by the prosecuting authority to prosecute an offence on indictment, or that of a 
District Court judge to refuse jurisdiction to try an offence summarily may reflect a decision, on 
the basis of the alleged facts grounding the prosecution, that the allegations are more serious, it is 
not clear that this, without more, amounts to a finding that they are ‘serious infringements’ within 
the specific meaning attributed by EU law to that phrase. For this reason it is necessary to 
understand whether the automatic mandatory forfeiture of all catch and gear is lawful only when 
the infringement in question is established to be “serious”, and whether, if there is no jurisdiction 
vested in the referring court to vary the terms of the confiscation and forfeiture, even where the 
infringement is not proven to be serious, the provisions of section 28(5)(b) of the Sea Fisheries 
and Maritime Jurisdiction Act, 2006 may nevertheless be considered compatible with the Control 
Regulation and European law.
Further Questions to be Referred to the Court of Justice
19. Having regard to the above matters which arise on review of the judgment of the Court of 
Justice delivered on 1 llh February, 2021 and the terms of the answer furnished by it, the referring 
court has determined to resubmit its original question, set out below, requesting the Court of Justice 
to have particular regard to the fact that neither the sentencing court, nor the referring court have 
jurisdiction to vary the terms and extent of the forfeiture order, which extends to the entirety of the 
catch (not just that caught by reason of the infringement) and the entirety of the gear belonging to 
the boat (not just the prohibited and non-compliant gear).
20. In addition to the original question, the referring court further proposes a number of 
additional questions, having regard to the matters identified in the Court of Justice’s judgment and 
the considerations discussed above:
Original Question
"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
9
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?”
Additional Questions
1. Do the terms of Article 89 and/or 90 of the Regulation, and the requirements of 
proportionality under the Charter and EU law, require the sentencing court to have 
a discretion to adjust, modulate or mitigate the extent of the forfeiture order of the 
catch and gear in particular having regard to the circumstances referred to in Articles 
89 and 90 of Regulation (EC) 1224/2009?
2. Having regard to the potential impact on the livelihood of a Master as a consequence 
of an automatic mandatory forfeiture of all catch and gear, can a provision of national 
law such as section 28(5)(b) which does not allow for a national court to examine any 
impact on the right to earn a livelihood of a person convicted on indictment of an 
offence contrary to that section and the Regulation (save in the context of considering 
what fine might be appropriate) be considered compatible with the terms of the 
Regulation, the Charter and EU law, having regard to the fundamental right of the 
Master to exercise his or her profession?
Dated this 27th day of July 2021.
r,, *-> 0f Appeal: -
Mr Justice George Birmingham 
Presidcnbof the Court. /}
Mr Yusticj^krtfiTEdwards.
Ms Justice Aileen Donuerty.
10