Originally published in [2002] International Fisheries Bulletin, Focus, No. 4

Reform of the Common Fisheries Policy

The Commission’s Reform Package: An Introduction  

Christopher Hedley
Director, OceanLaw; Editor, IGIFL

In May, the European Commission published the first parts of a comprehensive package of reforms for the Common Fisheries Policy. These proposals concern almost every aspect of the fisheries policy, which – is as widely known – has not been successful at preventing the overexploitation of stocks, either in Community waters or outside. Various aspects of the reform process will be examined over the coming months in this journal. This article will provide an overview of the first set of proposals and of the current stage of the reform process.

In March 2001, the Commission published its Green Paper on the Future of the Common Fisheries Policy[1] and thereby launched a wide-ranging review of the CFP which will result, later this year, in the largest revision of the fisheries policy since 1983. In the Green Paper, the Commission identified a number of serious shortcomings in the current operation of the Common Fisheries Policy, which had led to substantial resource depletion, both within the Community and in waters outside, where Community vessels operated. It was recognized that many fish stocks in Community waters were outside safe biological limits; that stocks sizes and landings had decreased dramatically over the last 25 years; and that a number of commercially important stocks were at risk of collapse if current trends continued.

These problems had been created, first and foremost, by failures to control fishing capacity and effort,[2] to set TACs at scientifically recommended levels and to enforce fisheries regulations effectively. However, other problems were identified by the Commission including insufficient technical conservation measures, which did not adequately take into account environmental concerns, a failure to take into account additional mortality caused by bycatches, discards and illegal fishing and a lack of stakeholder involvement, which undermined support for and compliance with the conservation measures adopted. From the external perspective, it was further recognized that the international environment had changed dramatically over the last twenty years and that the new fisheries policy would have to reflect modern developments in responsible fisheries policy and practice.[3]

Following the publication of the Green Paper, the Commission launched a wide consultation during which over 300 comments on the reforms were submitted from Member States, regional and local authorities, government agencies, the fishing industry, fishworkers, NGOs and other interested parties.[4] Several debates also took place within the Fisheries Council, the European Parliament,[5] the Economic and Social Committee[6] and the Committee of the Regions.[7] On the basis of these, the Commission produced, in May 2002, the first parts of a comprehensive package of proposals for reform of the CFP. These initial proposals consist of a new framework Regulation, two Regulations amending existing measures for restructuring the Community fishing fleet and two Action Plans, one on Illegal, Unreported and Unregulated (IUU) Fishing and one on the Integration of Environmental Protection Requirements into the CFP. The remaining components will mostly be published during the remainder of 2002. In total there will be 17 components in the reform package, dealing with almost all aspects of the CFP.[8]

The reform proposals are complex and cover virtually all areas of the CFP. It is not the purpose of the present article to consider in detail the Commission’s proposals: such analysis will be covered by future papers in this journal. Rather, this article will attempt to provide a general overview of the Commission’s proposals, highlight some of the more interesting aspects and explain the process from here until 1 January 2003, the date upon which the current framework Regulation for the CFP is due to expire.

General overview of the reform proposals

Broadly speaking, the proposals can be divided into four main areas: the general framework for conservation and management; enforcement; structural measures; and the international aspects of the CFP. The new framework Regulation proposed by the Commission is much wider in scope than its predecessors, laying down a more comprehensive framework for the adoption of management plans and conservation measures, a new legal framework for a Community control and enforcement system, revised measures for the adjustment of fishing capacity and new rules on decision-making and consultation.[9] Many of these aspects are (or will be) elaborated upon in additional components, some of which are additional proposals for Regulations and some of which are Commission Communications, setting out ‘Action Plan’ or ‘Strategies’.[10]

The basic principles of the new policy, which according to the Commission are based on international standards of responsible fishing, as reflected, inter alia, in the FAO Code of Conduct for Responsible Fisheries,[11] include: the application of the precautionary approach; the progressive implementation of an ecosystem based approach to fisheries management; coherence with other Community policies, in particular with environmental, social, regional, development, health and consumer protection policies; a clear definition of responsibilities at the Community, national and local levels; a decision making process based on sound scientific advice and delivering timely results; and broad involvement of stakeholders at all stages of policy. These principles support the general objective of the new policy, which is to ensure an exploitation of aquatic living resources that provides sustainable environmental, economic and social conditions.[12]

Framework Regulation: conservation and management

As regards conservation measures, the main innovation is the setting of catch limits on the basis of multi-annual management plans, as opposed to on an annual basis.[13] A major difficulty with the CFP in the past has been the setting of TACs in excess of scientifically-recommended levels, because short term socio-economic and political factors have been allowed to dominate decision-making. The proposed measures seek to end this pattern by creating a long-term scientific framework for the management of stocks on a multi-annual basis.[14] These plans are to be based on the precautionary approach and conservation reference points[15] recommended by relevant scientific bodies and are also to include additional conservation measures, including, inter alia: limits on fishing effort and the number of vessels permitted to fish; technical conservation measures, including gear restrictions, closed seasons and areas, minimum fish sizes; measures to reduced bycatch and other incentives to promote selective fishing.[16] The catch and fishing effort limits would be fixed by the Council for the first fishing year on the basis of the targets set in the plan and the most recent scientific advice about the state of the stocks and in subsequent years by the Commission, assisted by a Management Committee on the basis of the most recent scientific advice.[17] Under the Commission’s proposals, the Council would eventually adopt multi-annual management plans for the exploitation of all of the main stocks under Community control, although priority will be given to those which are estimated to be outside safe biological limits.[18]

In addition to the development of new conservation rules, the proposals also deal with the controversial question of access, which is likely to be one of the most difficult elements of the reform package. The question of access arises from rules developed as part of the arrangements for Spanish and Portuguese accession to the Community in 1986 (and later for Finnish and Swedish accession), under which access to the waters of other Member States was to be limited until the end of 2002.[19] In accordance with these arrangements, the proposed Regulation provides that all Member States fleets will have access to all Community waters on a non-discriminatory basis as from 1 January 2003.[20] Access to resources beyond 12 miles would then be governed by Council decisions in conformity with the objectives of the CFP. As regards, the question of allocation of resources, these will continue to be determined in accordance with the principle of relative stability.[21] As a result, the opening of access to Community waters for Spanish and Portuguese vessels is not likely to lead to any increases in fishing opportunities for these fleets, as quotas will remain fixed at existing shares, in accordance with the relative stability principle. Nevertheless, a number of Member States continue to have concerns about opening up Community waters to all vessels.

Finally, mention should also be made of proposals to provide for greater stakeholder involvement and increased transparency in decision-making. This will be achieved mainly through the creation of Regional Advisory Councils, which will be composed of representatives from a wide-range of interested parties, including from, inter alia, national, regional and local administrations in the Member States, the fishing industry and environmental organizations, and will have certain advisory functions.[22] The new approach to decision-making will also extend to cooperation with third countries, through the creation of a framework for dialogue and consultation with stakeholders in third countries, particularly in the context of negotiations for future fisheries partnerships with developing countries.[23]

Enforcement

The proposals on enforcement are composed of several elements. First, the basic Regulation establishes a new legal framework for control and enforcement which applies throughout the fisheries chain, to structural and market policies as well as to fishing operations. Under the new framework, stricter control and enforcement measures will be applied, in particular the extension of vessel monitoring systems (VMS) to a wider range of fishing vessels,[24] the introduction of remote-sensing vessel detection systems by 2004, enhanced procedures for the deployment of observers on board fishing vessels and the progressive introduction of electronic logbooks, linked to VMS.[25]

A major feature of the new rules will be a more specific definition of the roles and responsibilities of the Member States and the Commission in relation to control and enforcement, including an enhanced role for the Commission in the monitoring of the application of CFP rules by the Member States. The new framework does not alter the general distribution of responsibilities for control and enforcement, according to which the Member States are primarily responsible for the control and enforcement of the CFP and the Commission is responsible for monitoring and enforcing the correct application of Community law by the Member States. However, the Commission’s proposals do specify in more detail measures to be taken by the Member States to ensure the effective – and more uniform – enforcement of fisheries regulations and follow-up of infringements[26]; introduce measures designed to improve cooperation and coordination between the Member States inter se and between the Commission and the Member States[27]; and provide the Commission with new powers to monitor and ensure the application of the CFP by the Member States, including the power to impose sanctions on Member States. As regards the latter, the proposed framework Regulation would provide the Commission with the power to suspend certain fishing activities or landings of catches by certain categories of vessels or in certain ports if it considered that a Member State was not effectively enforcing fisheries regulations.[28] Such action by the Commission would have to be proportionate to the risk which non-compliance with the rules would bring.[29] Furthermore, if a Member State failed to comply with its obligations to enforce the rules of the CFP, any resulting losses to common fisheries resources would be compensated by that Member State in the form of a deduction of its quota allocation. Subject to Decisions by the Commission, this deduction could then be re-allocated to other Member States if it was determined that they had specifically suffered prejudice. In other cases, the quota equivalent value would be reassigned under general Community financial rules[30] to be used for the strengthening of control and enforcement measures under the CFP.[31]

Structural measures

A central difficulty with the CFP has been the failure to resolve the critical problem of overcapacity in the Community fleet. These problems have created effects not only in Community waters, but also outside, because the Community has effectively “exported” its overcapacity problem to international waters and the waters of third States. In its proposals, the Commission has developed a series of measures, based on the following three main lines of action[32]:

The first of these two areas are dealt with in proposals for specific Regulations,[33] whilst the third element is addressed in the proposed framework Regulation. 

As regards the first element, a number of specific changes to existing legislation are proposed.[34] The most important of these are the removal of public aid for the export of vessels to third countries and the setting up of joint ventures (this is designed, of course, to deal directly with the problem of the “export” of Community overcapacity to third countries) and the removal of public aid for new vessels or for the modernization of vessels where this implies an increase in fishing effort. Under the new rules, aid to modernize the fleet will be permitted only if it improves safety, hygiene, working conditions or the quality of fisheries products on board, or if it improves fishing patterns (selectivity of gears, etc.) with no increase in fishing effort in either case.[35] Measures in support of small-scale fishing will remain available but should not increase fishing effort, particularly in fragile coastal marine ecosystems, nor should they increase the impact of towed gears on the marine environment.

As regards the second part of the Commission’s proposals, special measures would be introduced for vessels affected by the reductions required under the multi-annual management plans, in particular by increasing the premiums available for vessels that are obliged to reduce their activity by more than 25 per cent under the plans[36] and by providing Community co-financing of national decommissioning schemes for the first year after the adoption of the management plans.[37]

As regards the final element, the system for limiting the Community fleet, the Member States would be required to establish measures to reduce the capacity of their fleets in order to achieve a “stable and enduring balance” between fishing capacity and available resources.[38] The fourth multi-annual guidance programme (MAGP IV) will be discontinued, but new fleet “reference levels” would be introduced based on the final objectives of MAGP IV.[39] Any new entry into the fleet would have to be accompanied by at least an equivalent withdrawal of capacity (i.e. an entry/exit ration of at least 1 to 1) and when capacity is withdrawn in the future, the reference levels would be automatically adjusted downwards by the amount of capacity withdrawn.[40]

The measures outlined above are to be combined with various measures designed to deal with the social and economic consequences of restructuring the fishing fleet.[41] Although it is not possible to quantify the employment effects of the restructuring programme with any accuracy at this stage, the Commission has estimated that up to 28,000 fishermen (representing about 11 per cent of the total employment at sea) could be affected by the measures.[42] The Commission is therefore proposing to conduct bilateral negotiations with the Member States in order to assess the likely socio-economic impacts in particular regions and, on the basis of these consultations, to formulate an Action Plan to Counter the Social, Economic and Regional Consequences of the Restructuring of the EU Fishing Industry.[43] Within this Action Plan measures will be developed which involve a reprogramming of the current aid schemes, in particular to encourage the early retirement of fishermen and persons in related industries or to assist them in converting to alternative employment.

International fisheries

In its Green Paper, the Commission observed that the international elements of the CFP needed to be revised in order to adapt to changing circumstances and new challenges such as the emergence of new players, the legitimate aspirations of many developing States to develop their fishing industry and the requirements of sustainable development and responsible fisheries. To this end, the Commission has proposed that future international fisheries policy should seek to promote and strengthen international cooperation and that the Community should seek to contribute to the improvement of global governance in fisheries related matters. In particular, the Commission has stated that under the new policy for international fisheries, the Community will seek to ensure sustainable and responsible fisheries outside Community waters with the same commitment as in its own waters.[44] By doing this, the Commission hopes that the Community will be able to promote a more responsible image, internationally, something which it concedes it is currently difficult to do.

In order to implement these objectives, the Commission is intending to develop a Strategy for European Distant-Water Fisheries, which will consist of the following elements:

The Strategy applies to all of the Community’s distant-water fisheries, including those in third country waters and those in international waters, although it is clear that the focus is on the Community’s third country fisheries agreements.

Arguably of most interest is the Action Plan on IUU fishing. The problem of illegal, unreported and unregulated  fishing is, of course, not a new problem (it has existed for as long as there have been laws on fisheries) but it is only relatively recently that the international community has taken coordinated steps to address the issue, primarily through the development of the FAO International Plan of Action to prevent, deter and eliminate IUU fishing. The Community Action Plan contains 15 broad areas of activity, at the Community, regional and international levels, to deal with specific aspects of IUU fishing, including measures to increase control over fishing vessels; to discourage Member State nationals from flagging their fishing vessels under the jurisdiction of a State which does not fulfil its flag State responsibilities (i.e. a “flag of convenience” country); to ensure that companies which provide services to fishing operators do not maintain relations with vessels identified as engaging in IUU fishing; to improve the monitoring of and data collection on IUU fishing activities; and to strengthen the role of port State control.

The Action Plan to improve, at the regional and sub-regional levels, the evaluation of stocks that are accessible to Community fishermen outside Community waters will be designed, in the Commission’s words, to “demonstrate the Community’s commitment to contribute to responsible fisheries through its participation in stock evaluation, for the mutual benefit of both Community fishermen and the fishermen of the third countries involved.”[47] It will consist of a series of actions and initiatives to be taken both at the Community level,[48] and in cooperation with relevant third countries (including both those with which the Community currently has fisheries agreements and with those with which the Community may potentially concluded new agreements), regional fisheries organizations and FAO. In this manner, the Community seeks to obtain better scientific understanding of and advice on the state of fish stocks both for existing third country fishing operations and before concluding new agreements with third countries. The first initiative under the Action Plan will be undertaken in West African waters.

The integrated framework for fisheries partnerships at national and/or regional level will be a set of measures and principles designed to enhance a policy dialogue between the Community and developing countries, both directly and through regional fora, with the principal objective of developing more effective relations with these countries. In particular, it is hoped that bilateral relations with third countries can be improved and that more effective fisheries agreements can be negotiated which will not only meet Community objectives but which will also assist the developing country partners is improve their capacity to achieve sustainable fisheries, developing their fishing industries and acquiring greater benefits from the resources in their waters. Presumably, it is also hoped that by improving its relations (and image) with third States, these countries will be more open to negotiating with the Community. The integrated framework is to be finalized towards the end of 2002 and will define the objectives, instruments and procedures of this new approach.

Finally, the distant-water Strategy will include measures to build, within regional fisheries organizations, new strategic alliances with third countries, particularly coastal developing countries. No details are available at this stage as to what these measures might be. The purpose of these measures, however, is, according to the Commission, primarily to build support for Community positions in regional fisheries organizations and to encourage third countries to develop sustainable, viable and competitive fishing industries (presumably, however, with some role for the Community).

As well as setting out the broad elements of the Strategy for distant-water fisheries, the Commission’s proposals also provide indications of the future approach towards third country fisheries agreements. This is a current issue of considerable concern, at least as regards the Community’s agreements with developing countries in West Africa and the Indian Ocean, where there is evidence of overfishing and conflict with the domestic (often artisanal) fleets of the coastal States.

Possibly of most significance is the promise that access to the waters of third countries will be limited to surplus stocks (as defined by the LOS Convention), and increased fishing opportunities will not be sought where no such surpluses exist. This contrasts with what has often been the position in the past, when fishing opportunities have been fixed on the basis of fleet needs and cost, with virtually no consideration to the state of resources, the capacities of the domestic fleets and the concept of surplus. The Commission is aware that, generally, the agreements need to be adapted to reflect modern principles of responsible fisheries management, should incorporate more flexible procedures to deal with emergency situations and should be more transparent. The Commission is also aware that the agreements need to reflect more the development requirements of the third countries. Thus, future fisheries policy towards third countries should take into account their legitimate aspirations to develop their own fishing industries and should respect their “ownership” of the development strategy. The proposals do not outline in detail, however, any measures which will implement this new approach, other than to make greater provision, in the financial compensation paid under the agreements, for the development of the fishing fleets, scientific research, enforcement, training and infrastructure in the partner countries .

Commentary

The Commission’s proposals place considerable emphasis on the reduction of the fishing capacity of the Community fleet and this aspect of the proposals may be considered to be the most important element. The proposals reflect a wide recognition that previous structural policies have failed to address the central problem that there are too many fishing boats for the quantity of resources available to the Community fleet and present serious but necessary measures to reduce the number of vessels. These measures are backed up by additional measures designed to ensure that the reductions are properly implemented by the Member States, reflecting a further problem that has existed in the past. Many other aspects of the framework Regulation are worthy of note, including the elaboration of multi-annual management plans, stricter and wider-ranging enforcement measures and the introduction of more stringent and more effective sanctions. If accepted by the Council and if fully implemented by the Commission and the Member States, these measures should provide for the more effective conservation and management of fisheries resources in the Community. It cannot, of course, be guaranteed (and, in fact, should not be expected) that these measures, if accepted, will be fully implemented, particularly during the first few years, but they nevertheless represent a significant step in the right direction.

As regards the many elements of the Commission’s package, there is again much of note. Many of the Commission’s proposals reflect modern principles of responsible fishing and seek to implement the Community’s commitments in this regard. In particular, the plans to integrate environmental protection requirements into the CFP, the Action Plan on discards, the strategy for distant-water fisheries and the Action Plan to eradicate IUU fishing should, if fully implemented, contribute towards the development of responsible fisheries in the Community. However, apart from the proposal for the framework Regulation and two proposals for specific Regulations on structural measures, the Commission’s package is short on specific measures. The various strategies, action plans and communications present positive developments for future fisheries policy, but do not in general specify any specific measures which will be taken. It could therefore be several years before significant effects are realized from some of these proposals and it is likely that some aspects will never come into fruition at all.

Finally, without wanting to state the obvious, it should be stressed that what has been under discussion are only the Commission’s proposals. Thus, they are subject to the approval of the Council of Ministers before they will come into effect. As the Member States negotiate amongst themselves in finalizing the new fisheries policy, some changes to the Commission’s proposals are inevitable and the possibility of the watering down of some important aspects cannot be discounted. In this regard, it should also be pointed out that currently the prospects for a straightforward agreement amongst the Member States on the Commission’s proposals are not positive. Spain, Portugal, France, Italy and Greece (the so-called “friends of fishing” group) have already stated strong opposition to the proposals, in particular as they relate to fleet reductions. These States are insisting that key parts of the proposals are amended, although this does not appear acceptable to the Commission or other Member States. The “friends of fishing” group is threatening to block the adoption of the proposals, however, if concessions are not made. At the time of writing, there is, in fact, some doubt as to whether any agreement will be reached by the end of the year, when the current regime expires. Much attention, including in this journal, will thus be focussed on developments over the coming months as negotiations between the Member States continue. 

Chris Hedley
IFB Editor