1 Introduction
The fishing opportunities of the European Union (EU)1 vary annually, mainly in response to biological considerations. To ensure the greatest possible stability, for over 30 years the allocation of EU fishing opportunities to its Member States (MSs) has been based on a predictable share of the stocks for each MS, known as relative stability (RS).
In December 2013, Regulation (EU) No 1380/2013 of the European Parliament and the Council on the Common Fisheries Policy was adopted.2 The new regulation keeps RS as a criterion for allocating fishing opportunities to MS and also bans discards, which are catches returned to the sea.3 Implementing the discard ban is a major challenge for mixed fisheries in which more than one species is present and where different species are likely to be caught in the same fishing operation,4 e.g., cod, haddock, whiting, and saithe in Northwest Atlantic waters.
Anzeige
The aim of this paper is to examine the compromise between RS and the discard ban.
2 Origin and Enshrining of Relative Stability
The origin and evolution of the Common Fisheries Policy (CFP) is closely linked to the evolution of international fisheries law (in particular, the creation of the exclusive economic zone)5 and the enlargement of the EU (mainly the first and third extension, which included the major European fishing states). Knowledge of both processes is also essential for understanding the rationale behind and the resulting form of RS.
The first EU fisheries legislation, which among other things established the “equal access principle,” was adopted at the beginning of the 1970s as a preliminary step for the negotiations that would result in the first enlargement of the EU,6 involving the major fishing states of the United Kingdom (UK), Ireland, Denmark (Danish accession included Greenland but not the Faroe Islands),7 and Norway, although the latter did not finally join. RS emerges shortly after, in connection with the outcome of the accession negotiations that enabled that first enlargement. But it is also closely linked to two other factors: the establishment of the exclusive economic zone and the third enlargement of the EU. In relation to the first factor we must recall how, in reaction to certain non-EU countries asserting jurisdiction over their waters out to 200 miles, the EU adopted very similar fishing areas from 1977.8 Moreover, the EU took responsibility for managing fishing rights in these new waters and also the fishing rights of EU vessels in the waters of third states. With regard to the second factor, the negotiations concerning what would become the third enlargement of the EU involved states with major fishing interests such as Spain and Portugal.9 After the first enlargement, the UK and Ireland were by far the largest EU fishing powers,10 a position that would later be occupied by Spain, although it, like Portugal, did not have great resources in its waters. Against this backdrop, most MSs wanted to have a European system of fisheries management established before starting negotiations with these two countries.11
2.1 Origin of Relative Stability
In November 1976, the Council adopted the “Hague Resolution,” which deals with the external aspects (affirmation of the competence of the EU to negotiate with third countries)12 as well as internal aspects (affirmation of competence of the EU for the adoption of conservation measures in EU waters)13 that result from the creation, in 1977, of the 200-mile fishing zone. In this resolution, which was published late14 and incomplete,15 the Council states that the CFP must take into account the vital needs of regions where local populations depend greatly on fishing and related industries. Known as the “Hague Preferences,” this provision is specifically directed towards Ireland and northern parts of the UK.16 Despite its open wording, these “preferences” are a recognition that must be understood in the context of the negotiations with the UK and Ireland. Therefore, they cannot be automatically extended to other areas with similar needs; it became clear during the subsequent accession of new states.
Anzeige
The full implementation of the Hague Resolution via a specific distribution among MSs required years of difficult negotiations.17 Finally, in 1983, the Council adopted a regulation18 and, based on it, made the first allocation among the MSs19 stating that three criteria were considered for doing this: the traditional fishing activities, the specific needs of areas particularly dependent on fishing and its dependent industries (the Hague Preferences), and the loss of fishing potential in the waters of third countries.20 With regard to the Hague Preferences for Ireland, Northern Britain, and Greenland (the latter until it left the EU in 1985), Ireland, the UK, and Denmark were assured that their fishing opportunities for certain species would reach a minimum threshold, on the understanding that this threshold would be in absolute terms and not a percentage. As noted above, these preferences were not the result of an objective study of the special needs of European fishing territories but the result of a negotiation.21
2.2 Enshrining Relative Stability
This allocation formula laid down in 198322 continues to take place; it appeared in subsequent reforms (1992, 2002, 2013)23 and is in the current regulation, despite the proposed amendment put forward by the European Commission’s Green Book on the reform of the CFP (2009).24
However, it has been completed as a result of new accessions and distribution of more species. On the one hand, since 1983 new states have acceded to the EU, including major fishing nations such as Spain and Portugal. When joining the EU, each new state accepts the acquis communautaire and therefore also RS, not as an underlying principle to ensure a distribution that tends to provide stability but as the specific percentages determined in 1983.25 The incorporation of a new state does not entitle that state to require a review of the percentages set when it was not part of the EU. With regard to these species, the new MS only gets what negotiates in its accession treaty.26 On the other hand, in the distribution of 1983, not all species from all areas were included, and over time it has been necessary to offer new fishing opportunities. This decision is made by the Council, taking into account the “interests” of the states,27 a notion that does not necessarily take into account, if any, the historical catches of the MSs for that stock zone.28
In brief, the current allocation percentages are established as follows: first, by taking into account the percentages established in 1983, if necessary with the application of the Hague Preferences,29 e.g., the allocation of cod and whiting quotas in ICES division VIIa (Irish Sea);30 second, based on the percentages set forth in the Acts of Accession of states that adhered after 1983, e.g., the allocation of anchovy quotas in ICES division VIII (Bay of Biscay);31 and third, in accordance with the percentages for new fishing opportunities, e.g., the angler fish quota in ICES division IV (Norwegian waters), which was allocated for the first time in 2005.32
The resulting percentages of these three processes constitute the RS distribution key.
3 The Nature of Relative Stability
RS is a criterion of distribution that, as its name suggests, aims to ensure the greatest possible stability. Given the constraints surrounding the setting of quotas, it is a relative stability as opposed to an absolute stability. Furthermore, its implementation as a distribution key does not guarantee the relative stability of the situation prior to its implementation but a future relative stability (1).
The mechanisms for allowing flexibility in this distribution key exclude fishing communities as direct beneficiaries, and RS is established as a guarantee of stability only for states (2). RS is a mandatory distribution key, albeit one susceptible to modification (3).
3.1 Future Predictability
Due to the difficult situation in the fisheries sector (structural problems of great socioeconomic impact), from the beginning of the CFP it was decided that this area would not be subject to the rules governing the single market in the EU for economic activities.33
To ensure the maximum stability, it was agreed that the EU itself would distribute the fishing opportunities among states (leaving the distribution of national quotas among fishing operators to each state, according to the criteria deemed appropriate). It was also decided that such a distribution would be the same every year, not in absolute terms but at least in relative terms. The distribution cannot be the same in absolute terms because the EU fishing opportunities (in EU waters, in waters subject to the sovereignty or jurisdiction of third countries, and in international waters) are not the same every year. It varies depending on the biological status of fisheries and on the outcome of agreements with third parties.
Furthermore, its implementation as a distribution key does not guarantee the relative stability of the situation prior to its implementation—not for those who were MSs in 1983 and not for new states that have joined since then. What is guaranteed is the stability of the original terms agreed upon, which amounts to a future stability.
In this respect, the Hague Preferences deserve special mention, although some states—such as Belgium, Denmark, Germany, the Netherlands, and France—are manifestly against them. The EU regulation refers to the Hague Preferences as an element that integrates RS. It was like this at the beginning (1983)34 and has continued to be so in subsequent regulations (1992, 2002, 2013).35 The Hague Preferences guarantee preferential treatment to Ireland and the UK for certain fisheries. When the application of RS would result in total allowable catches (TACs) for the UK and Ireland in certain fisheries below the minimum originally agreed upon, these states may request the application of the Hague Preferences. This system, which is applied by the Council, results in higher TACs for Ireland and the UK than they would otherwise receive. Inevitably, this occurs at the expense of other states that have a share in the fisheries in question.36
3.2 The States as Beneficiaries of Relative Stability
RS is a guarantee, a guarantee of stability. But it is a guarantee for states,37 not a guarantee for the economic actors involved in fishing. For this reason, the situation of the latter is irrelevant from a legal point of view.
Despite being presented as a criterion for safeguarding the interests of the fishing industry and fishing communities,38 the fact is, as the European Commission warned in 2009, RS no longer provides a guarantee that fishing rights remain with their fishing communities. RS itself has promoted a series of practices that has led to RS no longer providing this guarantee. This, along with other factors, has contributed to a current discrepancy between the quotas allocated to MSs and the actual needs and uses of their fleets.39 However, this amounts to a merely political argument, not a legal one.
This argument would stand as justification for changing the law (through the appropriate legislative procedure). Indeed, in the debate prior to the last reform, the Commission used it to propose amendments.40 However, as these amendments did not prosper, this argument does not seem to be considered valid legal grounds for bringing an action before the Court of Justice of the EU (CJEU). In this regard, we must also remember that, in a case of a violation of RS, the CJEU does not recognize the right of fishing operators to be compensated for any damage that such a violation may cause to them.41
3.3 Allocation Formula Contained in the Derived Legislation
The CJEU has had to rule on RS42 and in doing so uses the term “principle,”43 which is also used by many authors. However, when identifying its contents, the CJEU qualifies RS as a “fixed percentage” and as an “allocation formula originally laid down [that] will continue to apply as long as an amending regulation has not been adopted.”44
While we do not intend here to examine, or reflect upon, the principles of EU law,45 we must keep in mind the following: like international and national laws, EU law has an unwritten component consisting of general principles that take precedence not over primary law but over secondary law. Some of these principles are rooted in principles of international law or national law (e.g., the presumption of innocence),46 while others are specific principles of EU law (e.g., the principle of institutional balance).47 These principles have been articulated by the CJEU through an interpretive analysis extracted from written EU law and also international law and the national law of the MSs. The CJEU does not create these principles but extracts them from these sources.
Alongside these general principles, each area of the EU also has its peculiarities. In fisheries management, for example, certain principles such as good governance48 and the precautionary principle49 are particularly important. RS, however, is not presented as a principle. The legislative acts that give substance to RS qualify it as a “notion”50 or, in its current regulation, as a “concept.”51
What is noteworthy is its specific and binding nature and the possibilities for change, flexibility, and even repeal. RS is not a guiding principle to ensure a distribution that tends to provide stability but specific percentages imposed as binding that form part of the acquis communautaire. Even for new fishing opportunities, the decision made by the Council is not necessarily based on stability.52
RS is a distribution key negotiated between MSs that is laid down in the secondary legislation of the EU.
The implementation of RS as percentages is the result of negotiation between the MSs. Perhaps the best example of this negotiation is the Hague Preferences. Although presented as a safeguard for the benefit of the most vulnerable regions, in practice they are not applied in benefit of any region that may be classified as such (regions where the local populations are especially dependent on fisheries and related activities) but only in the case of Ireland and the UK. This negotiating dimension is not hidden by the benefited parties. To the contrary, both Ireland53 and the UK54 appeal to it, and the MSs most strongly opposing the Hague Preferences because they are directly affected do not allege that the beneficiary regions are not dependent on fisheries or that there are other dependent regions that are left out. Rather, they argue that the Hague Preferences have altered the percentages negotiated in 1983.55
Although RS is a distribution key negotiated between the MSs of the EU, it does not operate as an agreement between parties imposed as mandatory according to international law but separate from EU law. The binding nature of RS does not derive from the pacta sunt servanda principle. Instead, it finds its legal basis in the secondary EU legislation, currently Regulation 1380/2013. So, as stated by the CJEU, RS will continue to apply until an amending regulation is adopted.56 RS is an allocation that can be modified or repealed by an act of legislation. In this regard, as discussed above, during the last reform that culminated in Regulation 1380/2013, the Commission proposed amendments that finally did not come to fruition.
4 The Discard Ban
One of the negative effects of RS is the discards, which are catches returned to the sea (1). The new regulation imposes a progressive ban on discards but maintains RS as the distribution key for national quotas (2). The coexistence of both RS and the discard ban is a challenge for the first, not in its formal dimension as a quota allocation but in its substantive content on the utilization of the allocated quotas (3).
4.1 Relative Stability and Discards
The impact of discarding varies by species: some have low survivability when discarded (e.g., cod) whereas others may have higher survival rates (e.g., crustaceans).57 And discards have positive ecological effects to the extent that discarded fish is food for a range of scavenging species.58 However, discards are generally a negative practice entailing a massive waste of resources (human and animal food, potential income). In addition, it is probably the single most important reason for the poor quality of fisheries-dependent data that could be used to improve stock assessments.59
The nonrecording of discards makes it difficult to know the exact number of discards at a global or regional level, although we know it has reached worrying levels.60 In the EU, it varies from area to area, but it can be very high.61
The practice of discarding occurs for various reasons, which can be divided into two categories.62 First, discards occur for commercial reasons: wrong sex (where gender is important from a processing and marketing point of view); damaged fish, fish incompatible with the rest of the catch (slime or abrasion could cause damage to target species); inedible fish, rapidly spoiling fish; lack of space on board and high grading (take the best and leave the rest, often related to size). Second, discards also occur due to legal prohibitions: prohibited size, prohibited season, prohibited gear (a quota may be given for the capture of a particular species by a particular type of gear), prohibited fishing ground (closed for the capture of one species but open for others), prohibited species (no quota for the particular operator), and quotas reached (often the reason for high grading). This second category of discard occurs because the capture cannot be legally brought to market.
In the EU, prior to the current Regulation 1380/2013, it was not prohibited to discard fish, and discarded fish did not count towards an operator’s quota. In this context, the national quota allocation system based on RS contributed to discarding, not because the EU’s total TAC was used up but because the share for a particular MS was. While the fleet of one MS may not have used up its quota for a species, another fleet may have done so or may have had no quota at all, in which case this latter fleet would be forced to discard catches of this species.63 If all quota systems generate discards, the EU system multiplies discards as each national quota generates its own discarding constraints.
This situation is in the process of being eradicated as Regulation 1380/2013 imposes a progressive ban on discards. One of the main reasons for this change was the pressure of public opinion, from both inside and outside of the EU, which had been sparked by striking images in the media.64
4.2 The Landing Obligation
In accordance with Regulation 1380/2013, the discard ban is being introduced gradually (between 2015 and 2019) and on a fishery-by-fishery basis.65 The regulation distinguishes between four categories: small pelagic fisheries (e.g., mackerel, herring, horse mackerel, blue whiting, boarfish, anchovy, argentine, sardine, and sprat), large pelagic fisheries (e.g., bluefin tuna, swordfish, albacore tuna, bigeye tuna, blue and white marlin), fisheries for industrial purposes (e.g., capelin, sandeel, and Norwegian pout), species that define the fisheries (no examples of this category are given in the regulation). In addition to these categories, the regulation also describes certain species-area (inter alia fisheries for salmon in the Baltic Sea, fisheries for hake in the North Sea, etc.). It establishes four time frames that include these categories and species-areas and sets four deadlines by which the landing obligation is to be effective (1 January 2015, 2016, 2017, and 2019). Without going into the details of which species or species-areas are included in each of these time frames, it is important to note that the EU discards affect the demersal species more than the pelagic species,66 which is why the implementation did not start with them.
So far, the Commission has adopted 5+3 plans. In October 2014, the Commission adopted five discard plans, applicable from 1 January 2015, for certain pelagic and industrial fisheries.67 One year later, in October 2015, the Commission adopted three discard plans, applicable from 1 January 2016, for certain demersal fisheries.68
The discard ban is established as a landing obligation. Catches during fishing activities in Union waters or by Union fishing vessels in international waters (waters not subject to EU or third countries’ sovereignty or jurisdiction) must be brought and retained on board the fishing vessels, recorded, landed, and counted against any applicable quotas, except when used as live bait.
There are two possible exceptions to this obligation. First, the regulation allows for fishing operators to continue to discard species that, according to the best available scientific advice, have a high survival rate when released into the sea.69 For instance, an exemption from the landing obligation exists for Norway lobster caught in pots, traps, or creels in ICES division VIa and subarea VII.70 Second, to cater for unwanted catches that are unavoidable even when all measures for their reduction are taken, certain de minimis exemptions from the landing obligation may be established.71 For example, it exists a provision that allows to discard up to a maximum of 7% in 2015 and 2016, and 6% in 2017 of albacore tuna for total annual catches in the albacore tuna directed fisheries using midwater pair trawls (PTM) in ICES sea area VII.72
In addition to these two possible exemptions, which are to be determined in the corresponding discard plan, fishing operators must discard catches of prohibited species (e.g., basking shark)73 and, since 2015, also predator-damaged fish.74 These catches of prohibited species and predator-damaged fish cannot be retained on board and must be returned into the sea.75
These catches that can (high survivability, de minimis) or must (prohibited species, predator-damaged fish) be discarded are not counted against the quota, but they must be documented in the logbook.76
4.3 Use of National Quotas
The EU carries out a stock-by-stock management based on TACs (EU) and quotas (MSs). And, as we have seen, allocation keys were basically fixed for each stock-area on an MS basis when they joined the EU. Even if those allocation keys were adequate when fixed—a matter denied by some—the fact is that, as the Commission points out, conditions have changed since then due to different factors as, not intending to be exhaustive, stock development, the evolution of fleets, new fishing strategies on different stocks, changes in demand for given species, or the evolution of imports.77 One of the effects of this system is the so-called mini-quotas.78
There are two ways of easing RS. MSs may exchange all or part of the fishing opportunities allocated to them,79 or they may make use a year-to-year flexibility mechanism of up to 10% of their permitted landings.80 Outside of these two options, overfishing is penalized. When the Commission establishes that a MS exceeded the quotas which have been allocated to it, the Commission shall operate deductions in the future quotas of that MS by applying a multiplying factor.81 For this reason, some exchanges of quotas between MSs are actually regularizations in disguise.82
Quota exchanges take place between MSs83 but not in a fully satisfactory manner, so quotas sometimes have been underutilized.84 This has been the situation so far, and in the current period it is expected to worsen as a result of the ban on discards.
At this point in time, the traditional mechanisms for providing RS flexibility are still in place and, as we have seen, the landing obligation is in force with some exemptions. In addition are two further elements: discards are taken into account when setting quotas for MSs, and a new flexibility mechanism has been introduced. Indeed, on the one hand, when the landing obligation for a fish stock is introduced, fishing opportunities will be fixed taking into account the change from fixing fishing opportunities that reflect landings to fixing fishing opportunities that reflect catches, given that, for the first and subsequent years, discarding of that stock will no longer be allowed.85 In other words, in a scenario with discards, the reference is landings (catches less discards), while when discards are prohibited, the reference is the catches (discounting catches not subject to the landing obligation). On the other hand, flexibility between species is allowed. Catches of species that are subject to the landing obligation and that are caught in excess of quotas of the stocks in question, or catches of species in respect of which the MS has no quota, may be deducted from the quota of the target species provided that they do not exceed 9% of the quota of the target species.86 This second possibility—flexibility between species—has been seen by some as a breach of RS in favor of the autonomy of MSs, as it allows applying not used-up quotas to other species for which there is no quota, or for which quotas have been exceeded.87
In summary, RS maintains its flexibility mechanisms (quota swapping and year-to-year flexibility), the landing obligation is not absolute (with the exemptions of high survivability, de minimis, prohibited species, and predator-damaged fish), the fishing opportunities that take into account the effect of discards are expected to increase, and some flexibility between species will be admitted. Will this be enough?
The biggest concern is with the so-called choke species, which may even further reduce quota exchanges. MSs that previously got rid of certain quotas will now need them to cover the discard ban to prevent that other species strangle the catches of its target species. The real challenges lie with the demersal species. Although we will have to wait to see what happens on the fishing grounds, the experience with pelagic species has not been encouraging. In this case, the choke species have not stimulated quota exchanges but rather reduced them.88
At this point, it should be remembered that one of the objectives of the CFP is to increase productivity in fisheries by ensuring the rational development of fisheries production and the optimum utilization of the factors of production, in particular labor.89 A notion that must be understood in the light of other objectives, which include a fair standard of living for the fishing community and supply at reasonable prices.
This management of resources must also take into account the peculiarities resulting from structural and natural disparities between the various fishing regions, the impact of the fisheries sector on the whole economy, and the need to effect the appropriate adjustments by degrees.90
As the fisheries sector points out, for years discards were socially and politically accepted. When this ceased to be the case, the need arose to ban them. Likewise, there may come a day when the socioeconomic effects of the inability to take advantage of fishing quotas also become socially and politically intolerable. We understand that this is especially relevant to fishing-dependent regions, understanding this category of regions not in the sense of the Hague Preferences formula, which is limited to Ireland and the UK, but in a genuine sense to include all fishing-dependent regions of the EU.91 Good examples, although not the only ones, of regions in this category are Galicia (Spain), Highlands and Islands (UK), N-E Scotland (UK), Algarve (Portugal), and Peloponnisos (Greece).92
5 Final Considerations
Perhaps much of the frustration that RS has generated over the years in some states—mainly in states adversely affected like Spain—derives from the misleading way it has been formulated. The mismatch between the formulation of the RS concept and the concrete allocation of fishing opportunities among MSs, which has been applied annually for more than 30 years, has led some to consider that the concrete allocation constitutes a breach of the RS and hence a breach of EU law. But despite that RS is formulated as a system based on historical catches that also takes into account the needs of regions particularly dependent on fisheries, the fact is that both considerations serve only as a partial explanation of what RS actually is. As the CJEU has stated, “requirement of relative stability must be understood as meaning that each Member State is to retain a fixed percentage when fishing opportunities are distributed” and “the distribution formula originally laid down … will continue to apply as long as an amending regulation has not been adopted,”93 which has yet to occur. States have been negotiating the distribution key for years (mainly in 1983 but also in subsequent acts of accession and whenever it has been necessary to allocate quotas for new fishing opportunities). It is a fixed percentage, only altered annually when appropriate by applying the Hague Preferences. Therefore, in our opinion, the arguments that this allocation key identified as RS is not a true reflection of historical catches of MSs, or it does not take into account the needs of all regions particularly dependent on fisheries, probably do not provide a sufficient legal ground for questioning its legality. However, they may be good arguments for negotiation within the framework of a reform process.
One of the effects of RS is discards, i.e., catches returned to the sea. The current legislation, Regulation 1380/2013, keeps RS as a criterion for allocating fishing opportunities among MSs but introduces a gradual ban on discards. Aside from the existing flexibility mechanisms of RS (quota swapping and year-to-year flexibility), Regulation 1380/2013 establishes some exemptions to the landing obligation (high survivability, de minimis, prohibited species, and predator-damaged fish), provides an additional mechanism of flexibility (between species), and allows an increase in fishing opportunities to take into account the effect of discards.
The challenge is great, especially in certain mixed fisheries where the discard rate is very high. At this stage at least, it appears that RS could be the loser in the compromise sought in Regulation 1380/2013 between it and the discard ban. Exactly to what extent the RS is affected will depend on how insufficient the regulation’s mechanisms turn out to be and whether any further corrective action is taken. RS will continue to be the distribution key, but the MSs could not be able to satisfactorily use their quotas. While national quotas were not being fully used prior to the ban on discards, mainly due to deficiencies in quota swapping, the discard ban might not improve this. Although we are still at the implementation phase, and the real challenge is with the demersal species, the experience with pelagic species seems to indicate no increase in quota swapping and so far is having exactly the opposite effect.
From a legal point of view, to what extent is it relevant that MSs cannot fully exploit their fishing quotas? To answer this question, we need to keep in mind the objectives of the CFP. The EU has to increase productivity in fisheries by ensuring the rational development of fisheries production and the optimum utilization of the factors of production, in particular labor. The EU has to exploit fisheries resources in such a way that ensures the sustainability of marine ecosystems and also provides reasonable income to those who depend on fishing activities while taking into account the interests of consumers. The inability of a state to fully use their fishing quotas clearly has a negative effect on those who make a living from fishing, and also on the price and supply. This effect is logically more damaging in fishing-dependent regions, a category that should be freed from the shackles of the Hague Preferences, which strips it of its substance by restricting it to regions in two MSs (Ireland and the UK) while, in its true sense, this category includes many other regions.
Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial 4.0 International License (http://creativecommons.org/licenses/by-nc/4.0/), which permits any noncommercial use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.
The images or other third party material in this chapter are included in the chapter’s Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter’s Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.