Pat Gallagher (Donegal, Fianna Fail)
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173. To ask the Minister for Agriculture, Food and the Marine his plans to introduce by statutory instrument a penalty points system for fishing vessel licence holders; the way in which the penalty points system will operate; the rights of appeal he plans to introduce for the vessel licence holders; and the timeframe for the introduction of the statutory instrument. [47255/17]

Pat Gallagher (Donegal, Fianna Fail)
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174. To ask the Minister for Agriculture, Food and the Marine the level of consultation he has had with the fishing sector over the past four months over the proposed introduction by statutory instrument of a penalty points system for vessel licence holders; the other organisations and groups he has consulted with on this issue for the same period; and if he will make a statement on the matter. [47256/17]

Pat Gallagher (Donegal, Fianna Fail)
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176. To ask the Minister for Agriculture, Food and the Marine the definition of serious infringements as contained in his written correspondence of 1 November 2017 to the members of the Oireachtas Committee on Agriculture, Food and the Marine regarding the points system for fishing vessel licence holders; the way in which he plans to deal with the definition and future interpretation of serious infringement; the person or body that will make such a determination and interpretation of the statutory instrument once introduced; and if he will make a statement on the matter. [47276/17]

Michael Creed (Cork North West, Fine Gael)
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I propose to take Questions Nos. 173, 174 and 176 together.

The European Union (Common Fisheries Policy) (Point System) Regulations 2016 (S.I. No. 125 of 2016) establishes a point system, which will apply to the Licence Holder of a sea-fishing boat when a serious infringement of the Common Fisheries Policy is detected.  It is intended that the new Statutory instrument which I intend to sign shortly will replace S.I. No. 125 of 2016 to change the make-up of the Determination Panel set up under the 2016 S.I. to determine if on the balance of probabilities a serious infringement occurred and whether it is a serious infringement.  This will involve the appointment of three independent legal professionals nominated by the Attorney General, thereby completely separating the enforcement and the determination functions. The new SI will, to the extent possible, take on board the issues of concern in relation to procedures and processes highlighted in High Court judgments on this matter.  It will also address certain minor technical and drafting issues arising in S.I. No. 125 of 2016 .

In June 2016, I advised the Oireachtas that subject to addressing some important legal and administrative issues, that I was hopeful of moving towards a system of sequential application of EU points in conjunction with the prosecution process, having consulted with the Attorney General’s office. I made it clear that this move was subject to addressing some important legal and administrative issues in order to ensure compliance with EU law. 

There has been extensive examination and consideration of all the issues in relation to meeting our EU obligations to implement the points system in the interim period.  The firm legal view available to me is that it is not possible to deliver on an effective and dissuasive points system, as required under EU law, by assigning points to licence holders upon successful prosecution.

In relation to stakeholder consultation, I discussed with industry representatives my plans to bring forward a new SI at the Sea Fisheries Liaison Group meeting on 20 October 2017 and explained the amendments I am planning and the justification for these amendments. 

Under the new S.I., the licence holder may appeal on a point of law a decision of the independent fisheries Adjudicator to the High Court.  In the 2014 S.I. (which was struck down by the Courts and replaced by the 2016 SI), this appeal was “final and conclusive” – this aspect of the provision has been removed.

It should be noted in this context that Pilot Infringement proceedings by the EU Commission for non-implementation of the EU points system have been taken against Ireland.  It remains an option for the EU Commission to proceed to formal infringement proceedings in respect of the licence holders system. 

There are also serious implications with regard to the release of funding under the European Maritime and Fisheries Fund (EMFF).  Implementation of the EU Points system was an ex-ante conditionality for the approval of Ireland’s European Maritime Fisheries Fund Programme, given that the programme is intended to facilitate implementation of the Common Fisheries Policy in Ireland. The EU Commission has signalled in writing that the delivery of funding under Ireland’s EMFF Operational Programme is firmly linked to the implementation of the points system. This programme is investing €241m of EU/Exchequer funding in total in the fisheries sector over the lifetime of the programme, which is crucial at a time of Brexit uncertainty. The immediate concern is with regard to the control and data collection funds.  The EU Commission wrote in July 2017 advising that due to the non implementation of the Points system, EMFF funding allocated for control spend will be suspended.  

Regarding the determination of a serious infringements, the S.I. (Regulation 3 of SI No. 125 of 2016) defines “serious infringement” as "...an infringement of the rules of the common fisheries policy mentioned in Annex XXX to the Commission Regulation that is determined by the Determination Panel, on the balance of probabilities, to be serious having regard to the criteria and guidance notes referred to in Regulation 6(3)."

Regulation 3 also provides that “Commission Regulation” means Commission Implementing Regulation (EU) No. 404/2011 of 8 April 2011 as amended by Commission Implementing Regulation (EU) 2015/1962 of 28 October 2015.

Regulation 6(3) referred to above provides that "The SFPA may issue guidance notes, which shall be published on its website on the internet, for the purpose of providing practical guidance in identifying the criteria, for the purpose of these Regulations, the Control Regulation and the Commission Regulation, employed in determining whether an infringement is a serious infringement."

It is intended that the new SI will feature the same definitions. As stated above, it is envisaged that it will be for the new Determination Panel established under the new SI to determine if on the balance of probabilities a serious infringement occurred and whether it is a serious infringement.  

Having an effective, proportionate and dissuasive system of points for all fishing vessels, Irish and non Irish, operating in our 200 mile zone is beneficial to maintaining the sustainability of fish stocks on which our seafood sector is dependant.  This system will ensure that the vast majority of our law abiding fishermen are able to compete effectively and look forward to a sustainable future in the industry.