Comments on the European Commission’s proposal for a regulation on a Common Fisheries Policy (CFP)
On 13th July, the European Commission’s proposal for a regulation on a Common Fisheries Policy was published. This was accompanied by strong statements promising radical reform to deliver sustainable fisheries. For example, the setting of sustainable fishing levels, the integration of environmental requirements into fisheries management, the decentralisation of decision-making and in relation to the elimination of discards.
To the Commission’s credit, the proposal does attempt to make good on some of these promises. However, it fails to meaningfully address others, and even where there are positive provisions, they never go quite far enough to actually mean that they will deliver the desired outcomes in the end.
Much work remains to be done.
Important Note: This briefing is meant to be a short summary of the main issues arising out the CFP proposal, not an examination of all relevant points in detail. Further, more detailed, explanations regarding each of the core issues identified, will be prepared by ClientEarth and available on this web-site soon.
The Commission’s proposal for a regulation on a Common Fisheries Policy (the CFP proposal) provides that discards of some key fish stocks must be eliminated. This is good but not sufficient. The CFP proposal needs to impose more measures to prevent the practice of discarding in the first place. For example, by providing additional incentives for the use of more selective fishing gear. It also needs to stop other species being discarded that cannot survive this process. Moreover, the mechanism for dealing with unwanted catches that are landed, while well intentioned, is not clear and may be open to abuse.* This must change.
* There are provisions both within the text of the CFP proposal and the Commission's proposal for a regulation on the common organisation of the markets for fishery and aquaculture - COM(2011)416 final
Enshrining sustainable fishing levels that cannot be exceeded in the new proposal is the absolute core requirement. Without this any attempt at a successful and effective reform will fail, whatever other provisions – good or bad – are passed. The good news is that this requirement is included – to an extent. An aim for sustainable fishing levels based on the maximum catch of fish that may be taken from a fish stock indefinitely (maximum sustainable yield or MSY) by 2015 is expressed for all harvested fish stocks. Provision is even made for ‘measures capable of effectively preventing conservation reference points from being transgressed’ (i.e. that stop fishing levels that have been set from being exceeded).
However, these provisions do not apply to all fish stocks in all circumstances, and they have a number of other limitations. For example, the MSY target is not only aspirational (and therefore not binding), but also unclear in its definition.
Another core requirement for sustainable fisheries in the EU is the application of an ecosystem based approach to fisheries management. This has been a fundamental objective of the CFP proposal since 2002, but this has not had much noticeable effect. If ecosystem based management is going to be meaningful at all, then it is absolutely crucial that the CFP proposal should prescribe specific measures to ‘translate’ the ecosystem based approach into practical, real action in relation to real fisheries. The CFP proposal only attempts to do this in a very half-hearted and wholly insufficient way.
A good example of an ecosystem based fisheries management proposal is ClientEarth’s and the Marine Conservation Society’s Fishing Credits System proposal.
Read a summary of the Fishing Credits System proposal HERE
One of the core problems identified with regard to the CFP is that too many boats cause too much pressure on fish stocks (overcapacity). The CFP proposal aims to reduce overcapacity through the mandatory introduction of fishing rights (for fishers) that can be bought and sold (called ‘transferable fishing concessions’ ).Transferable fishing concessions are meant to reduce the number of fishing vessels through concession holders selling their rights. What happens to the fishing vessels that are no longer used is not explained.
Crucially, if fishing levels are not set sustainably set, then any amount of overcapacity reduction will fail to stop overfishing. Enforcement costs will rise. Conversely if fishing levels are set sustainably and there is good compliance with rules within the fishing industry, then overcapacity will not lead to overfishing, though fishing may become uneconomical for many fishers and there may be a subsequent reduction of overcapacity. To help with this, and in recognition that there will never be full compliance, (voluntary) transferable fishing concessions could help to make the process of capacity reduction easier for fishers, as could subsidies and aid to enable fishers to exit the profession and find alternative employment. In any case, mandatory transferable fishing concessions should not be regarded as the solution to all problems, and certainly not as an answer to overfishing or to issues surrounding the environmental impacts of fisheries.
The Commission proposal recognises the need to integrate environmental law into the CFP. This is hugely important. However, the wording used by the Commission raises serious concerns that, far from integrating and supporting environmental law, the CFP could in fact undermine key provisions of European environmental legislation, both as a general principle and in relation to specific provisions regarding specified environmental legislation.
The CFP proposal only contains very limited specific measures that actually attempt to deliver or comply with environmental law requirements.
5. Transparency and Compliance
Transparency and compliance will both be crucial to the effectiveness of the new CFP. The need for compliance is obvious. If the fishing industry does not stick to the rules of the CFP and of applicable environmental legislation, fish stocks cannot recover and healthy seas are not possible. One way to improve compliance is to move away from top-down micro-management where EU rules dictate hundreds of technical measures (for example, on mesh size in fishing nets) and prescribe sustainable outcomes and standards which fishers must show they have complied with (results-based management). The proposal does not deliver this.
At the same time, it is necessary to have a robust control system that penalises transgressions of the rules in a way that makes cheating simply not worth it. The EU laws on this have improved recently, but penalties for non-compliance with the rules of the CFP are still not strict enough, especially for smaller breaches, and there are no penalties at all for breaching environmental laws. The CFP proposal does not change this.
Transparency throughout fisheries management is vital, so that it is possible for the public to monitor authorities, governments, EU institutions and fishers (to an extent) to ensure that they are following the rules and doing their job properly. The CFP proposal mentions the need for transparency in some areas, mainly as regards Member State decision-making processes, but not in all areas where it is necessary. Neither does it include transparency as a fundamental objective of the CFP. Access to information on fisheries management though is crucial.
In compliance with international law, rules on public access to information, public participation and rights to administrative or judicial review are required if there is to be a sufficient system of checks and balances regarding compliance with the CFP and environmental rules.
There also needs to be an obligation for the Commission to undertake reviews of the implementation of the CFP at specific intervals during its implementation.
In order to properly implement an ecosystem based approach to fisheries management, European fisheries must be managed at the regional level (within seabasins, e.g. the North Sea). This ensures consistency with requirements of EU environmental legislation.
In spite of Commission assurances, there is no sea basin approach to fisheries management in the CFP proposal, unless multi-annual plans (long term plans to deal with the recovery of certain fish stocks) are to be managed at a sea-basin level. But, even then there is no obligation for EU Member States to co-ordinate their efforts in adopting conservation measures. Further the Advisory Councils (regional bodies set up for each sea basin region in the EU and made up of stakeholders in those areas), who are clearly integral to regional management, have been afforded no visible increase in powers in the CFP text; it is just left to the discretion of the Commission to adopt laws in this regard.