Astonquest Ltd, R (On the Application Of)

In reviewing a national fisheries quota system under Community law, the court must distinguish discrimination from merely different treatment of different classes by separate administrators. A difference in treatment is unlawful only where comparable situations are treated differently without objective justification.

The proportionality and rationality of a measure must be assessed against the objectives of the relevant Community policy. The intensity of review depends on the character of the decision, including its political, scientific and technical content and the extent to which legislation circumscribes the decision-maker. The governing test remains whether the measure is manifestly inappropriate for its objective.

A system may be undesirable or inflexible without being unlawful. The monthly quota restrictions were not shown to be manifestly inappropriate, despite concerns about discarded fish and the advantages of more flexible arrangements.

Astonquest Ltd sought judicial review of a decision by the Ministry of Agriculture, Fisheries and Food allocating its vessel, the Lofoten, a fishing quota for October 1997. The challenge arose in the context of criminal proceedings concerning alleged fishing in a closed fishery.

The United Kingdom system allocated quota differently between vessels belonging to recognised producer organisations and vessels outside that sector. Producer organisations managed their members’ quota, whereas MAFF imposed monthly catch restrictions on non-sector vessels through licence conditions, backed by criminal sanctions.

Moses J rejected the challenge. Astonquest appealed and also sought a reference to the Court of Justice under Article 234 of the Treaty. The central issues were whether the system unlawfully discriminated between sector and non-sector vessels and whether the monthly restrictions were incompatible with the objectives of the common fisheries policy.

1. Appeal and reference. Permission to appeal was granted, but the appeal was dismissed with costs. A reference to the Court of Justice under Article 234 was refused because the applicable legal principles were clear and the remaining difficulty concerned the facts.
2. Applicable review. Lord Justice Robert Walker, whose reasoning Lord Justice Schiemann expressly adopted, held that the court must assess discrimination and proportionality by reference to the objectives of the common fisheries policy. The margin of appreciation depends on the character of the national decision, including its political content, reliance on scientific or technical advice, and the extent to which Community legislation circumscribes the decision-maker. The test of manifest inappropriateness remains applicable, although the target area varies with the circumstances.
3. Discrimination. Different arrangements for producer-organisation vessels and non-sector vessels did not, without more, establish unlawful discrimination. Community legislation contemplated separate systems: producer organisations could manage sectoral allocations, while MAFF directly managed vessels outside those organisations. MAFF was not required to reproduce the arrangements adopted by producer organisations.
4. Monthly restrictions. The court recognised serious disadvantages, including reduced flexibility, possible economic hardship and the risk of discards. Lord Justice Walker considered that the judge had attached too much weight to full quota uptake and cost-effectiveness, and that MAFF should consider greater flexibility. Nevertheless, the evidence did not establish that the impugned system was manifestly inappropriate for the task entrusted to MAFF.
5. Separate opinion. Lord Justice Evans considered the system unlawful because its rigid monthly limits and criminal sanctions could require dead fish to be discarded, but agreed that relief should not be granted because the prosecution concerned fishing in a closed area. Lord Justice Schiemann rejected that reasoning and considered that the possibility of accidental discards did not itself make the regime irrational or contrary to Community law.

• Court of Appeal (Civil Division): Appeal from the order of Moses J in judicial review proceedings dismissed with costs. Permission to appeal to the House of Lords refused.