Tuesday, 11th October 2011
Questions on Common Fisheries Policy
Struan Stevenson MEP, in his capacity as a rapporteur on reform of the Common Fisheries Policy, submitted the following questions, on behalf of the Fisheries Committee, to the European Parliament's Legal Services Department.
Question1: Regionalisation
1. What mechanism will allow the adequate empowerment (under Article 2(1), TFEU with respect to those areas of fisheries management that are subject to exclusive EU competence) of Member States to ensure an adequate, meaningful and effective regionalisation of EU fisheries management in relation to the Commission’s Proposal for a Regulation on the Commons Fisheries Policy (COM(2011) 425 final – ‘the CFP reform proposal’)?
2. Given the governance framework provided in the CFP reform proposal, how can the reformed CFP ensure that there are clear rules setting out sufficiently precise objectives, powers and duties for all relevant entities (including the Commission and Member States), and a mechanism to ensure regional co-operation and regionally applied rules?
3. How can amendments to the CFP proposal be framed to allow Member States to choose from a ‘tool kit’ of different fisheries management measures in a way that is appropriate to local and regional conditions?
Background
Articles 17-24 of the Commission’s Proposal for a Regulation on the Commons Fisheries Policy (COM(2011) 425 final) set out under Title III (Regionalisation) the legislative framework for a proposed system of regionalisation of fisheries management. According to the Commission this will enable the EU to pass high-level objectives for fisheries management, and the Member States to work together to pass joint specific management measures.
However, neither Article 17, nor Article 21, create a general power, or duty, for Member States to pass conservation or technical measures. Neither do they impose an obligation on Member States to work together and pass measures jointly. Instead, they merely state that in multiannual plans and technical measures frameworks Member States may be authorised to adopt conservation and technical measures which, in addition, will only apply to:
a. vessels flying their flags;
b. in relation to stocks in their waters (not in other Member States’ waters in the same region);
c. in relation to stocks for which the Member State or vessel (wording unclear) has been allocated fishing opportunities (i.e. quota or fishing effort – whether EU or national is not clear from wording).
Moreover, although the Commission has the discretion to take action if Member States do not take measures where they have been empowered to do so, the Commission does not have a duty to do so. Neither is there any provision for what is to happen if there is no such authorization in relevant multiannual plans or technical measures frameworks. Also lacking is a clear timetable for multiannual plans and technical measures frameworks, i.e. for the fish stocks and/or ecosystems to be covered, when they are to be covered by and what rules are to be apply to stocks not covered.
Question 2: Transferable Fishing Concessions
1. Is the imposition of a mandatory EU-wide system of national transferable fishing concessions (TFCS) under Article 27 of the CFP reform proposal unlawful under Article 345 TFEU? Would a voluntary TFC system, on the other hand, be lawful under EU law?
2. Does the current proposal stop, or can it stop:
a. the concentration of the right to fish (TFCs) within the hands of a few international fishing companies;
b. the increased acquisition of fishing businesses (companies, individual traders etc) by overseas companies/businesses, and therefore the indirect concentration of fishing rights in the hands of a few international parent companies?
3. If some Member States allow the trading of TFCs between Member States, then:
a. What happens if vessel X from Member State A acquires a TFC from vessel Y from Member State B?
b. How can Member State B apply and enforce its fisheries management rules regarding the fish stock subject to the TFC against a foreign vessel?
c. How - practically and legally - can Member State B recall the TFC if vessel X commits a serious breach of EU fisheries rules?
d. What impact does such a situation have on relative stability?
Background
1. TFCs amount to property rights in at least some EU Member States, for example in Germany, Poland and the UK. Under Article 345 TFEU, it is unlawful for the EU to interfere with the property rights systems of Member States and to introduce new types of property rights. Therefore, if the reformed CFP were to oblige Member States to introduce TFCs to manage their national fleets, that would be unlawful under Article 345 TFEU and affect national sovereignty. A voluntary system of TFCs would allow those Member States who wish to introduce them (or already operate such a system) to do so, while enabling other Member States to apply other fisheries management tools.
2. Article 28(5) of the CFP reform proposal states that TFCs are to be unlimited (with a 15 year notice period) or have a term of at least 15 years. Although they are not automatically tradable between Member States, it is open to Member States to allow this (Article 31(2), CFP reform proposal).
If TFCs are transferable between some Member States, then that could lead to TFCs being bought by other Member States’ fishing vessels, leading to complicated legal issues surrounding jurisdiction and enforcement regarding overseas fishing vessels fishing for fish stocks subject to other Member States’ fisheries management rules, and for which another Member State has responsibility.
Even if TFCs are not tradable between Member States, TFCs are intended to give a much higher value to individual fishers’ rights to fish (as they will be potentially unlimited, or at least 15 year, rights), so that fishers have security, and can, for example, secure credit on the back of such fishing rights. However, the increased value of such rights will also make fishing companies/businesses a much more attractive target for take-overs by other companies, nationally, across the EU and potentially internationally.
Question 3: Discards
1. If a discard ban is enforced in relation to certain species, as envisaged by Article 15 of the CFP reform proposal, how exactly will fish landed be treated that are over quota or that would currently be undersized - in practice and legally?
2. Once the obligation to land such fish comes into force, will the relevant legislation currently prohibiting its landing be amended, so that it is no longer illegal?
3. Who is to receive the proceeds of fish sold for non-human consumption because it falls below relevant size limits?
Background
Article 15 of the CFP reform proposal envisages that all catches landed of a specified list of species will need to be landed from 2014 – 2016 onwards. Article 15(2) clarifies that fish below a ‘minimum conservation reference size’ can only be sold for reduction to fish meal and pet food. The Commission’s proposal on the common organisation of the markets in fishery and aquaculture (COM(2011) 416 final – ‘the CMO proposal’) makes producer organisations responsible for dealing with unwanted catches (see Article 7(b)). Producer organisations are to do this by disposing of landed products below ‘minimum marketing size’ for uses other than human consumption; placing on the market landed products which conform to minimum marketing sizes, and distributing landed products free of charge to philanthropic or charitable purposes (all Article 8(b), see also Article 40(3)).
The CMO proposal does not clarify a timetable for any of these provisions, or their inter-relationship with current rules, particularly regarding the landing of undersized fish (see Regulation 850/98/EC). It is merely stated that marketing standards must comply with current control laws (see Article 39(3)). It is not made clear either, who is to receive the benefit of selling fish that is ‘disposed of’ for uses other than human consumption: the Producer Organisation or the fisher? Neither is there any provision for restricting the amount that can be received for fish that is disposed of in this way (in order not to create an incentive to target undersized fish for example)?
