Unitymark Ltd., R (on the application of) v Department of Environment, Food & Rural Affairs

A national court cannot declare a Community regulation or Commission decision invalid. Where validity is critical to the outcome, it must refer the issue to the Court of Justice unless it has complete confidence that the measure is valid. The obligation is especially strong where invalidity is alleged. A wide margin of appreciation does not remove the need for a reference where the measure may be disproportionate or discriminatory. Urgency, temporary operation, delay, or the possibility of later replacement do not justify avoiding a reference.

Fishing businesses sought judicial review of the Sea Fishing (Restriction on Days at Sea) Order 2003, as replaced by the No 2 Order, which implemented restrictions in Annex XVII to Council Regulation (EC) No 2341/2002. They argued that the restrictions disproportionately affected open-gear beam trawlers, whose cod by-catch was comparatively small, and discriminated against them in favour of other fishing methods. The central issue was whether the High Court should refer the validity questions to the Court of Justice.

1. The claimants’ case depended on the possible invalidity of provisions of Council Regulation (EC) No 2341/2002 and Commission Decision 2003/185. The High Court could not itself declare those Community measures invalid.

2. Applying Regina v International Stock Exchange of The United Kingdom and Republic of Ireland Ltd, ex parte Else (1982) Ltd 1993 QB 534, a national court other than a court of last resort should ordinarily refer a critical Community-law issue unless it can resolve it with complete confidence. The need for uniform interpretation, the risks of applying unfamiliar Community legislation, and the Court of Justice’s institutional advantages supported referral.

3. The obligation was particularly clear where validity, rather than interpretation, was in issue. Under Foto-Frost v Hauptzollamt Lubeck-Ost [1987] ECR 4231, the Court of Justice alone could declare a Community act invalid.

4. The evidence showed a substantial imbalance between the restrictions imposed on open-gear beam trawlers and their minimal impact on cod stocks. The claimants also raised a substantial issue of discrimination compared with other fishing methods. The margin of appreciation relied on by the defendant did not give the court complete confidence in the validity of the measures.

5. Urgency, the temporary nature of the scheme, possible delay, and the prospect of replacement measures did not justify refusing a reference. The proportionality and discrimination questions were referred to the Court of Justice. Costs were reserved to the trial judge.