Information Note on the Court’s case-law 219
June 2018
O'Sullivan McCarthy Mussel Development Ltd v. Ireland - 44460/16
Judgment 7.6.2018 [Section V]
Article 1 of Protocol No. 1
Article 1 para. 2 of Protocol No. 1
Control of the use of property
Temporary prohibition on commercial mussel-seed fishing to comply with European Union directives: no violation
Facts – The applicant company is engaged in the cultivation of mussels in Castlemaine harbour, obtaining the necessary licences and permits each year. The harbour became subject to two EU directives seeking to protect the environment.
In December 2007 the Court of Justice of the European Union (CJEU) delivered a judgment in Commission v. Ireland (C-418/04) declaring that Ireland had failed to fulfil its obligations under the aforementioned directives. In view of the judgment, the authorities considered that it was not legally possible to permit commercial activity in Castlemaine harbour until the necessary assessments had been completed, thus prohibiting mussel seed fishing from June 2008. In October 2008, following successful negotiations between the Government and the European Commission, the applicant company was able to resume mussel seed fishing, however, natural predators had already decimated the mussel seed. Since mussels needed two years to grow to maturity, the applicant company sustained financial loss in 2010, having no mussels for sale.
It instituted unsuccessful compensation proceedings against the State.
Law – Article 1 of Protocol No. 1: The complaint was within the scope of Article 1 of Protocol No. 1 as the case concerned a “possession”, namely the underlying aquaculture business of the applicant company. The temporary prohibition of part of the applicant company’s activities, which was to be regarded as a restriction placed on a permit and connected to the usual conduct of business, amounted to an interference with its right to the peaceful enjoyment of its possessions, including the economic interests connected with the underlying business and was declared admissible. Unlike in cases previously decided by the Court, the authorisation, which was subject to conditions, had not been withdrawn or revoked. The nature of the interference was considered a “control of the use of property”.
Concerning the lawfulness of the interference, there was no uncertainty about the nature and scope of the restrictions that were applied to the harbour in 2008, nor about their legal basis. The applicant company had had continuing contact with the Government and been informed of all relevant developments. As an economic operator active for many years in the aquaculture sector, it had not been claimed that the applicant company was not aware of the protracted pre-contentious phase of the legal proceedings involving the European Commission and the respondent State, or of the infringement judgment of the CJEU.
The interference had the clear aim to protect the environment and the impugned measures taken had been adopted to ensure the respondent State’s compliance with its obligations under EU law, which was a legitimate general-interest objective of considerable weight.
As the respondent State had not been wholly deprived of a margin of manoeuvre with regard to how to achieve compliance with the relevant EU directive and the CJEU judgment, the Bosphorus presumption of equivalent protection did not apply.
Considering the justification for the interference, the applicant company was engaged in a commercial activity that was subject to strict and detailed regulation by the domestic authorities, and operated in accordance with the conditions stipulated in the authorisations granted to it from year to year. This included the condition that it was not permitted to fish for mussel seed in an area where such activity had been prohibited by the Minister. Furthermore, it was relevant to the Court’s assessment that the Supreme Court had been unanimous in finding that there was no legal basis for the applicant company to entertain a legitimate expectation of being permitted to operate as usual in 2008, following the finding by the CJEU that Ireland had failed to fulfil its relevant obligations under EU law.
Secondly, the applicant company was a commercial operator and therefore could not disclaim all knowledge of relevant legal provisions and developments. Rather, it could be expected to display a high degree of caution in the pursuit of its activities, and to take special care in assessing the risks that might be attached. However, the applicant company had purchased its new boat in May 2008, though it should have been aware of a possible risk of interruption of its usual commercial activities at least from December 2007, when the CJEU infringement judgment had been delivered.
Moreover, the Court was not in a position to find, as an established fact, that the applicant company’s loss of profits in 2010 was the inevitable and immitigable consequence of the temporary closure of the harbour in 2008. The applicant company’s activities had not been completely interrupted in 2008 and the State had succeeded in obtaining the agreement of the Commission to allow mussel seed fishing to resume at a much earlier stage, namely from October 2008. While this had not avoided the delayed loss in relation to 2008, the following year the applicant company had been able to resume its usual activities.
The fact that the respondent State had been found not to have fulfilled its obligations under EU law should not be taken, for the purposes of Article 1 of Protocol No. 1, as diminishing the importance of the aims of the impugned interference, or as lessening the weight to be attributed to them. Until the CJEU had handed down its judgment it was difficult to see how the respondent State could have known of the extent and consequences of the infringement thereby established. The Court saw no basis to second-guess the technical assessment of qualified authorities which had ruled out the possibility to open the harbour earlier. Even though the environmental assessments had eventually demonstrated that the blanket ban was not necessary, the State was required, as a matter of EU law, to be concerned not with unproven risk but rather with proven absence of risk. Achieving compliance on the nationwide scale, and within an acceptable timeframe, with the respondent State’s obligations under EU law attracted a wide margin of appreciation for the domestic authorities. Although the applicant company saw an anomaly, and even arbitrariness, in the fact that one type of activity (mussel seed fishing) had been prohibited while another similar activity (the harvesting of mature mussels) had not, it was first and foremost for the domestic authorities, within their margin of appreciation, to decide the nature and extent of the measures required. The partial restriction applied to commercial activities in the harbour, as opposed to a total one, was to the benefit rather than the detriment of the applicant company.
In sum, the Court was not persuaded that the impugned interference had constituted an individual and excessive burden for the applicant company, or that the respondent State had failed in its efforts to find a fair balance between the general interest of the community and the protection of individual rights.
Conclusion: no violation (unanimously).
The Court also found unanimously no violation of Article 6 § 1 with regard to the duration of the domestic proceedings.
(See also Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [GC], 45036/98, 30 June 2005, Information Note 76; Malik v. the United Kingdom, 23780/08, 13 March 2012; and Avotiņš v. Latvia [GC], 17502/07, 23 May 2016, Information Note 196)
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This summary by the Registry does not bind the Court.
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