High Court: State’s refusal to validate UK training certificate contrary to EU law

High Court: State’s refusal to validate UK training certificate contrary to EU law
Seosamh Gráinséir 4 January 2018 http://www.irishlegal.com/10095/high-court-states-refusal-validate-uk-tr...

Cork Institute of Technology has been granted an order of certiorari in the High Court, quashing the decision of the State to refuse to recognise certificates of proficiency granted under the authority of a UK approved maritime agency.

Criticising the State and finding that the refusal was contrary to European law, Mr Justice Max Barrett emphasised that the joint venture between the UK agency and CIT was not “some sort of atavistic over-reach on the part of the United Kingdom towards a former colony”.

Key Issue

In the High Court, Cork Institute of Technology and SEFTEC NMCI Offshore Training Ltd (hereafter “SNO”) challenged a Marine Notice (Marine Notice No.6 of 2017) that was issued by the Minister for Transport, Tourism and Sport in February 2017.

SNO was described as a joint venture between Cork Institute of Technology and SEFTEC NMCI Offshore Training Ltd, a company that specialises in safety training for offshore workers in the oil and gas industry. SNO provides various training courses at the NMCI and has been approved by the United Kingdom’s Maritime & Coastguard Agency (MCA), an executive agency of the United Kingdom’s Department for Transport.

Justice Barrett stated that “perhaps because of the United Kingdom’s long and distinguished maritime history, it appears that, inter alia, training certificates issued under the authority of the MCA are something of a ‘gold standard’ within the international maritime industry”.

Pursuant to the contested Marine Notice, Ireland refused to recognise certificates of proficiency issued by SNO under the authority of the MCA, following on completion of certain training at the NMCI. This was the key issue before the High Court, with CIT and SNO contending that this refusal was contrary to European law.

European-level code

Justice Barrett said Directive 2005/45/EC, Directive 2008/106/EC, and Directive 2012/35/EU created “a clear (if somewhat mosaic) European-level code on seafarer training and certification” which required “European Union member states to recognise a certificate issued under the 2008 Directive, with the certificates envisioned by the 2008 Directive, as amended, being both certificates of competency… and certificates of proficiency”.

“When one looks at the …provisions of the 2008 Directive, as amended, and then turns to Art.3(1) of the 2005 Directive (which, it will be recalled, provides that “Every Member State shall recognise appropriate certificates or other certificates issued by another Member State in accordance with the requirements laid down in [the 2001 Directive]”, this last reference falling – thanks to Art.32 and Annex IV of the 2008 Directive – to be read as a reference to the 2008 Directive, as now amended by the 2012 Directive), it is clear that the reference to every member state recognising “appropriate certificates or other certificates” relates now to certificates of competency and also to certificates of proficiency issued pursuant to the 2008 Directive”.

Justice Barrett continued “…Those forms of certificate come within the straightforward language of Art. 3(1) of the 2005 Directive. They are certificates issued by another member state in accordance with the 2008 Directive. They must, therefore, be recognised by Ireland”.

Additionally, the mutual recognition obligations arising in the 2005 Directive fell to be construed in a like manner to the similar provision made in the 1989 Directive and interpreted by the Court of Justice.

The court considered Commission of the European Communities v. Hellenic Republic (Case C-274/05) and Khatzithanasis v. Ipourgos Igias kai Kinonikis Allilengiis and anor (Case C-151/07); and Justice Barrett was satisfied that this case-law clearly envisioned cross-border authorisation and cross-border verification.

Moreover, Justice Barrett was satisfied that the MCA “clearly complied with its obligations under the 2008 Directive, as amended”.

The Minister for Transport, Tourism and Sport, the Attorney General, and Ireland suggested that the United Kingdom exceeded its power under the European Union legislation – however Justice Barrett emphasised that the SNO-MCA arrangement was not “some sort of atavistic over-reach on the part of the United Kingdom towards a former colony: the MCA has authorised training providers across Europe and indeed the rest of the world”.

Justice Barrett also considered the extensive interaction between the Parties prior to the commencement of the proceedings, “which were brought very much as a last resort”.

Conclusion

In a markedly lengthy judgment, Justice Barrett granted reliefs (1), (2), (3), 4(a), and 4(g):

an order of certiorari quashing the Marine Notice;
an order of mandamus requiring the Minister to recognise certificates of proficiency issued by SNO to seafarers pursuant to training courses approved by the MCA;
a declaration that the Marine Notice is ultra vires and/or entirely without legal basis and/or invalid having regard to the 8 isssues specified in the notice of motion;
a declaration that the Marine Notice:
is vitiated by manifest error,
breaches the applicants’ legitimate expectations,

Justice Barrett refused to grant relief (5) which sought a declaration that the 2014 Regulations breached the 2005 and/or 2008 Directive – however he stated that the repondents should pay attention “to the concern… that reg.12 of the 2014 Regulations does not properly transpose the applicable requirements of the 2008 Directive, as amended”.