DG MARE A STUDY IN SUPPORT OF THE DEVELOPMENT OF A … · 2016-10-13 · DG MARE A STUDY IN SUPPORT OF THE DEVELOPMENT OF A NEW TECHNICAL CONSERVATION MEASURES FRAMEWORK WITHIN A

DG MARE

A STUDY IN SUPPORT OF THE DEVELOPMENT OF A NEW TECHNICAL CONSERVATION MEASURES FRAMEWORK

WITHIN A REFORMED CFP

Lot 2: Retrospective and prospective evaluation on the common fisheries policy, excluding its international

dimension

Final report

7 July 2014

Ref. Ares(2014)2334359 - 14/07/2014

Project no: ZF1455_S02

Issue ref: Final Report

Date of issue: 7 July 2014

Prepared by: BC/GM/TP/RM/RW

Checked/Approved by: RW

As required by the terms of reference, this final report is composed by two separate standalone reports: The final report of the retrospective evaluation (volume 1) This report is the final version of the final report of the retrospective evaluation submitted to the European Commission on the 26th June 2013. The final retrospective report presented here takes into consideration comments received during the meeting of Steering Committee held on 9th July 2013, as well as additional technical comments communicated by email by DG MARE after the meeting. The draft final report of the prospective evaluation (volume 2) This report is the final report of the prospective (ex-ante) evaluation of the impacts of reformed technical measures regulations under 5 different reform options adapted over summer 2013 to the final compromise on the reform of the Common Fisheries Policy (as endorsed by Coreper meeting of 14 June 2014 in its broad terms, and subsequently rewritten as in Council document 12007/13 dated 10 October 2013).

VOLUME 1

Final report of the retrospective evaluation of technical measures regulations

DG MARE




dimension

Retrospective Evaluation Report

Final report

7 July 2014


Issue ref: Final report retrospective evaluation


Prepared by: BC/GM/TP/RM/RW


Study in support of new EU Technical Measures Framework Page i

Contents

Executive summary ................................................................................................................................. 1

Résumé ................................................................................................................................................... 1

Introduction ............................................................................................................................................. 1

Part A The EU Technical Measures Framework: Presentation and main Issues .............................. 3

A.1 Background ............................................................................................................................. 3 A.1.1 Historical development of the EU technical measures framework .................................. 3 A.1.2 Structure by gear of the EU fishing fleet operating in the North Sea and in the North Atlantic 6 A.1.3 The legal architecture for technical measures ................................................................ 9

A.2 The intervention logic of technical regulations ...................................................................... 11 A.3 The current technical measures framework for the North Sea and North Atlantic ............... 15

A.3.1 Geographical coverage of the technical measures regulation ...................................... 15 A.3.2 Measures on the structure of fishing gears ................................................................... 16 A.3.3 Time / area closures ...................................................................................................... 20 A.3.4 Real-time closures......................................................................................................... 21 A.3.5 Protected marine species .............................................................................................. 23 A.3.6 Minimum landing sizes .................................................................................................. 23

A.4 Performances of technical measures .................................................................................... 25 A.4.1 Performances of prescriptions on fishing gears ............................................................ 25 A.4.2 Performances of Minimum landing sizes ...................................................................... 33 A.4.3 Performances of spatial / temporal closures for conservation purposes ...................... 34 A.4.4 Performances of technical measures for habitat protection .......................................... 36 A.4.5 Performances of technical measures for mitigating impacts on protected species ...... 39 A.4.6 Impacts of technical measures on discarding ............................................................... 40 A.4.7 Impacts of technical measures on MSY conservation objectives ................................. 53

A.5 Improvement of gear selectivity: tools available and uptake by the fishing industry ............ 54 A.6 Member States initiatives in relation with technical measures .............................................. 61

A.6.1 In inshore waters ........................................................................................................... 61 A.6.2 In offshore waters (outside the 12 miles) ...................................................................... 61 A.6.3 As a response to regulatory incentives ......................................................................... 62

A.7 Enforcement and compliance with technical measures ........................................................ 64 A.7.1 Drivers of compliance and non-compliance .................................................................. 64 A.7.2 Means of control ............................................................................................................ 66 A.7.3 Costs of MCS in relation to technical measures ........................................................... 69

A.8 Infringements of technical measures .................................................................................... 71 A.9 Concluding remarks .............................................................................................................. 71

Part B Retrospective (ex-post) evaluation of the current EU technical measures framework ......... 74

B.1 Relevance ............................................................................................................................. 74 B.1.1 To what extent the objectives of technical measures (Reg. (EC) 850/98 and associated regulations) remain relevant to the original needs, problems and issues? ................................... 74

B.2 Effectiveness ......................................................................................................................... 77

Study in support of new EU Technical Measures Framework Page ii

B.2.1 Are technical measures focused on the structure of fishing gears effective in protecting juveniles and minimizing by-catches of non-targeted commercial species? ................................ 77 B.2.2 Are technical measures focused on time / area closures effective for stock conservation? ................................................................................................................................ 80 B.2.3 Are protected species effectively protected from interactions with fishing through technical measures? ..................................................................................................................... 83 B.2.4 Are technical measures focused on protection of habitats effective? ........................... 85

B.3 Efficiency ............................................................................................................................... 87 B.3.1 Have the objectives of technical measures been achieved at reasonable cost? ......... 87

B.4 Coherence ............................................................................................................................. 90 B.4.1 Are existing technical measures coherent with the overarching objectives of EU policy? 90

B.5 Acceptability .......................................................................................................................... 92 B.5.1 To what extent do stakeholders accept technical measures? ...................................... 92

B.6 Conclusion: main lessons learnt from the ex-post evaluation ............................................... 95 References ............................................................................................................................................ 97

APPENDIX 1: Inventory of EU Technical Measures Regulations....................................................... 101

APPENDIX 2: Main time / area closures adopted as part of the technical measures framework ...... 108

APPENDIX 3: Summary of fishermen organisations responses to perception questionnaire ............ 111

APPENDIX 4: Information on MCS supporting text in Section A.7 ..................................................... 113

APPENDIX 5: List of organisations met during MS visits ................................................................... 119

Study in support of new EU Technical Measures Framework Page iii

Acronyms/Terminology

ACOM Advisory Committee of ICES ADD Acoustic deterrent devices AER Annual Economic Report CCAMLR Convention for the Conservation of Marine Living Resources CFP Common Fisheries Policy CL Carapace length DCF Data Collection Framework DCR Data Collection Regulation DFN Drift and/or fixed netters DTS Demersal Trawlers and/or demersal seiners EC European Commission EEZ Exclusive Economic Zone EU European Union FAO Food and Agriculture Organisation of the United Nations FPO Vessels using pots and/or traps GES Good Environmental Status HOK Vessels using hooks ICES International Council for the Exploration of the Seas ICCAT International Commission for the Conservation of Atlantic Tunas INA Inactive IOTC Indian Ocean Tuna Commission IPOA International Plan of Action KW Kilowatt LTMP Long-Term Management Plan MGO Vessels using other active gears MGP Vessels using polyvalent active gears only MLS Minimum landing size MPA Marine Protected Area MSFD Marine Strategy Framework Directive MSY Maximum Sustainable Yield NAFO North Atlantic Fisheries Commission NEAFC North East Atlantic Fisheries Commission PG Vessels using passive gears only for vessels < 12m PGO Vessels using other passive gears PMP Vessels using active and passive gears PS Purse seiners PTS Pelagic trawlers RAC Regional Advisory Council RFMO Regional Fisheries Management Authority RTC Real Time Closure STECF Scientific, Technical and Economic Committee for Fisheries TAC Total Allowable Catch TFEU Treaty for Lisbon TCM Technical Control Measure

Executive summary Study in support of new EU Technical Measures Framework Page 1

Executive summary

Background for the evaluation of technical measures regulations

For the North Atlantic and the North Sea, current technical measures are described in Council Regulation (EC) No. 850/98 which has been amended no less than 12 times since its adoption. In addition to Regulation (EC) No. 850/98, technical measures of relevance for the North Sea and the Atlantic are also found in a number of other regulations including Regulation (EC) No. 2549/2000 & 2056/2001 (cod measures), 494/2002 (hake measures) or 732/2012 (Celtic Sea measures). Additionally ,specific ecosystem protection regulations for example on cetaceans (Regulation (EC) No. 812/2004) as well as detailing implementing rules for the measurement of mesh size and the introduction of real-time closures in the North Sea and Skagerrak have also been enacted. Technical measures were also included under the annual TAC & quotas Regulation for many years as a mixture of regionally specific measures and derogations from the provisions of Regulation (EC) No. 850/98 up until entry into force of the Treaty of Lisbon (TFEU).

In 2004, the Council recommended that the technical measures for the Atlantic and the North Sea be simplified and also regionalised reflecting the creation of the Regional Advisory Councils (RACs) in the 2002 reformed Common Fisheries Policy (CFP). Technical measures regulations were also identified as a fundamental test case for simplification under a Commission Action Plan 2006-2008 on simplification of the CFP. In 2008, the European Commission came up with a new proposal for technical measures for the North Atlantic and the North Sea. This was accompanied by an impact assessment, but a failure to reach a political agreement meant that this proposal was not adopted and the measures introduced in 1998 still remain in force.

The current technical measures are not considered effective by Member States and stakeholders which consider the current regulations as too complex, over-prescriptive, and difficult to understand, control and enforce. In the words of the European Commission(EC, 2009)(EC, 2009)(EC, 2009)(EC, 2009), the result of all of these amendments is a “legislative labyrinth; a mass of overlapping, and sometimes contradictory provisions, allowing multiple derogations and exceptions, scattered throughout a range of very different legal texts”1.

Recognising these shortcomings, the discussions during the reform of the CFP have led to a political commitment being given by the Commission to come forward with a new proposal for technical measures post-reform. This new proposal is given the following main objectives:

• To simplify and improve the effectiveness of technical measures taking into account of the consideration of environmental impacts, such as the minimising of discards and the protection of sensitive species and marine habitats.

• To contribute to the implementation of the international commitment to bring and maintain all European fish stocks to a state where they can produce the Maximum Sustainable Yield (MSY).

• To contribute to the objectives and targets for “Good Environmental Status” (GES) as established under the Marine Strategy Framework Directive (MSFD), as well as other environmental conservation legislation such as the Habitats and Birds Directives (later two also known as the Natura 2000 Directives).

1 The Common Fisheries Policy - A user’s guide, 2009

Study in support of new EU Technical Measures Framework Page 2

• To decentralise the decision-making process through the regionalisation of the CFP and put more responsibilities on stakeholders through a shift to a result-based management system, as opposed to the current prescriptive top-down management framework.

As required by the procedures in the EU, the reform of technical measures must be accompanied by an evaluation of the existing policy framework to support any new proposal. Accordingly, DG MARE has contracted the consortium of enterprises led by MRAG Ltd to assist in the evaluation of the current regime (retrospective evaluation) and carry out an impact assessment (prospective evaluation) to support a new proposal to be tabled by the Commission in 2014. This report concentrates on the retrospective (ex-post) evaluation of the current technical measures regulations. This retrospective evaluation has been carried out over the first half of 2013 mainly by (i) a review of the existing scientific and technical literature in relation to technical measures from specific research programmes as well as evaluations carried out by STECF and ICES working groups, (ii) the organisation of discussions with managing authorities, control authorities, scientific institutes and fishermen’s organisations in the Member States having significant fishing interests in the North Atlantic and in the North Sea (Belgium, Denmark, France, Ireland, Netherlands, Spain, United Kingdom), and (iii) an analysis of EU relevant policy and legislative documents backed by discussions with European Commission representatives and with the European Fisheries Control Agency (EFCA).

What are technical measures?

Fisheries management aims to regulate the amount and composition of fish species caught to ensure ongoing reproduction potential of commercially exploited stocks while minimising negative impacts on the marine ecosystem. This has traditionally focused on regulating two aspects:

• The exploitation rate, i.e. the proportion of fish that are being removed from the population. The main tools utilised are limitations on the total quantities that can be caught through setting of catch limits (TAC & quota), or limitations on the amount of effort that can be deployed through control of fleet capacity (globally or by fishery through fishing authorisations) and/or the amount of time a vessel can spend at sea (limits on effort).

• The exploitation pattern, i.e. the proportion at each age of fish that are removed from the population. The exploitation pattern is regulated using instruments which define where, when and how a fishing enterprise can exploit and interact with marine resources and the wider marine ecosystem. The management framework of technical aspects of fishing operations corresponds to technical measures.

Technical measures can be loosely grouped into (i) measures that regulate the design characteristics of the gears that are deployed such as the regulation of mesh size, twine thickness or use of selectivity devices and specific conditions associated with the use of certain gears (catch composition rules); and (ii) measures that regulate the operation of the gear such as setting maximum limits on how long or what type of gear can be deployed; minimum landing sizes and spatial and temporal controls such as closed/limited entry areas and seasonal closures. Collectively, technical measures aim to control the catch that can be taken with a given amount of effort. Their main specific objectives are to reduce catches of unwanted marine organisms and to support mitigation of the impacts of fishing on the marine environment.

In terms of its legal ‘architecture’ the most striking aspect of the current framework for technical measures under the CFP is its rigid structure. Unlike common practice around the world where technical measures are invariably set out in subordinate legislation (in the form of decrees, regulations etc.) adopted by the government or the minister responsible for fisheries, on the basis of powers conferred to that end by the relevant fisheries law, the vast majority of CFP technical measures regulations adopted in the Union to date have been as Council Regulations requiring agreement by all Member States and since the entry into force of the TFUE, under co-decision


requiring agreement by the Council and the European Parliament. The current legal architecture (including the Basic Regulation) does not delegate powers to the Commission to adopt technical measures in the form of Commission Regulations (now delegated and implementing acts under the TFEU) except the case of emergency situations, i.e. curative measures as opposed to preventive measures. Member States can also adopt unilateral technical measures which are no less stringent than EU measures that apply to their vessels wherever they fish or to any fishing vessel in their territorial waters.

Main findings of the retrospective evaluations of technical measures

The current technical measures regulations have been evaluated against the relevance, effectiveness, efficiency, coherence and acceptability criteria.

The evaluation of the relevance criteria indicates that technical measures are needed and will continue to be needed as one of the management tools utilised to regulate fishing mortality and impacts of fishing on the marine ecosystem. Their objectives are particularly relevant. Technical measures complement other EU management measures including prescriptions on the fishing possibilities and other measures addressing the balance between fishing capacity and the potential of exploited stocks. However, the evaluation finds that the design of the intervention is no longer relevant to address the needs and objectives. The current architecture for regulating technical measures with a centralised top down management by the EU Council and European Parliament proves to be too rigid and not sufficiently flexible to support the objectives of the reformed CFP. Nonetheless, the current mechanism does at least partially support a level playing field across EU fisheries, a merit widely acknowledged by Member States managing authorities and professional organisations.

Evidences demonstrate that the current technical measures are not effective at avoiding catches of juvenile fish or unwanted fish species. As evidenced by a review of scientific literature, many legal fishing gears are unselective mainly as a consequence of a mismatch between selectivity of legal gears and the minimum landing sizes or market sizes in particular in mixed fisheries, forcing fishermen to discard large amounts of both undersized and marketable fish species The North Sea flatfish fishery is an emblematic example of mixed fishery for which the legal gear (beam trawl with a 80 mm mesh size codend) may be effective to support a relevant exploitation pattern of one species (sole) but proves to be inadequate for other species caught during the same fishing operations (large catches of undersized plaice, whitefish). The same applies for Nephrops fisheries in different fisheries (North Sea, Celtic Sea, Bay of Biscay) where the legal gear is not effective at avoiding catches of undersized Nephrops or species such as whiting, haddock and cod.

This suggests that the regulatory tools utilised which include mainly gear prescriptions with conditions associated with their use (catch composition rules) and closures of areas to protect concentrations of juveniles or spawners are not sufficiently adapted to the specificities of the different EU fisheries. The problems are greatest in the mixed demersal towed gear fisheries. The low effectiveness of technical measures to avoid unwanted commercial species can also be attributed in part to the lack of relevance of the design of the intervention which cannot take into account local specificities in a proportionate manner.

Concerning the management of impacts of fishing on the broader environment, the few EU technical measures adopted so far to minimise interactions with protected species are estimated to be largely ineffective and to provide insufficient coverage for the appropriate species or areas/fisheries. For example, it is estimated that Council Regulation (EC) No. 812/2004 on protection of cetaceans should be extended to provide effective monitoring and mitigation measures to vessels of all length categories in the main fisheries with cetacean bycatch problems. Other protected species including


seabirds, marine reptile or pinnipeds are not protected from interactions with fishing gears by EU technical measures.

EU technical measures effectively address the protection of habitats when this requires prohibition of demersal fishing gears within the areas protected. However, scientific knowledge on the distribution of deep-sea vulnerable ecosystems improves and certain protection measures, in particular those approved in the multilateral context of the applicable regional sea convention (OSPAR), are still to be introduced in the EU acquis. In addition, future marine protected areas will not necessarily be ‘no-take’ zone for demersal gears and it is estimated that the current EU technical measures will not be adapted to regulate fishing activities in coherence with habitats objectives at such a fine local scale.

The evaluation of efficiency, when considering the costs of MCS, research and structural funds related to technical measures, and the resulting impacts/benefits, is problematic in quantitative terms. Some improvements in cost efficiencies have been realised in recent years through increased collaboration between control agencies within and between Member States. The control of specific technical measures requires the use of specific types of inspection means which may be costly but justified given detection abilities, e.g. sea-based patrols to enforce gear regulations. Risk-based MCS approaches have also served to increase efficiency. However consideration of a number of criteria/principles suggests that cost effectiveness has not been maximized because: the results of MCS are not widely available to all relevant stakeholders; measures to correct legislation are lengthy; legislation is often not clear and unambiguous; and there is a wide range of piece-meal legislation that has been put in place over time. The strong focus on MCS of technical measure in situ rather than on outputs, and the inflexible framework based on low regional specificity and acceptability, have all served to undermine efficiency. The cost effectiveness of much technical measures-related research has also been questionable given the low up-take by the private sector.

Although their objectives are coherent with the overarching objectives of EU policy, technical measures have unexpected effects that undermine these objectives (issue of internal coherence). The main unexpected effect of technical measures regulations is that it creates the conditions for discarding fish species, undermining the conservation objective of the CFP, the Marine Strategy Framework Directive objectives and the Europe 2020 objectives. Also, the prescriptive top-down approach adopted to regulate technical measures forms an incentive to misuse the innovation potential of the fishing industry that the Europe 2020 objectives seek to promote.

Interviews of professional organisations organised in the context of this evaluation have established that the current EU technical measures regulations are not well accepted by fishermen. Some EU rules are perceived to be counterproductive for the conservation of stocks and often imposed without clear objectives. In addition, it is felt that the fishing industry has been insufficiently associated in the development of technical measures although the situation has improved with the integration of the RACs into the decision-making process. EU technical measures will be well accepted, and complied with, if the industry is associated in their development, if they have clear conservation benefits and if they are sufficiently flexible to adapt to changing circumstances. Additionally, the industry feels that uptake of more selective fishing practices should be incentivised to compensate for the inevitable short-term economic losses incurred by the use of more selective fishing practices. For example, Council Regulation (EC) No. 1342/2008 which introduced the possibility of derogations to the effort regime for vessels using cod-avoidance measures, including improved gears, has supported the development of more selective fishing practices often developed under science-industry partnerships. This example shows that positive incentives with rewards for doing certain things may work better than penalties.

The way forward

Overall, the lessons from the ex-post evaluation suggest that the governance of the technical measures framework should be reformed to move away from the current the top-down prescriptive


approach to a more decentralised bottom-up approach incorporating better adaptation to the local contexts, flexibility and industry knowledge in the design of measures. . In general, and particularly concerning gear specifications, a result-based approach focusing on the output rather than on the input may be a more effective approach. Such an approach may provide incentives for fishermen to apply their knowledge (on gears, areas, behavior of species, habitats) and innovative capabilities to achieve defined output objectives efficiently, instead of reducing the expected effect of detailed and prescriptive top-down regulations. The rigidity of the current system and its attempt to regulate all fisheries with a single instrument are identified as the main factors undermining the effectiveness to current technical measures to support the overarching objectives of EU policy.

The highly prescriptive approach adopted so far also contributes to place a high burden on Member States control authorities with a need to control compliance mostly in situ with support of control means costly to operate. Given the low effectiveness of technical measures to support conservation objectives, the investment in control appears to be weakly rewarded. A shift towards a result-based management system may contribute to alleviate the enforcement pressure on Member States control authorities although the experience shows that a prescriptive approach by Member States is still needed to maintain a level playing field.

Whatever solution is retained for the reform of the EU technical measures regulations, it is desirable that the EU conserves a role to ensure that a level playing field is maintained across fisheries. The contribution of the current framework to the establishment of a level playing field is widely acknowledged by Member States authorities and the industry and seen as a necessary condition for acceptance of technical measures as soon as the fisheries regulated have a transnational dimension.

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Résumé Study in support of new EU Technical Measures Framework Page 1

Résumé

Contexte de l’évaluation rétrospective des règlements mesures techniques

Pour le Nord-Atlantique et la Mer du Nord, les mesures techniques actuelles sont décrites dans le Règlement du Conseil (CE) No. 850/98 qui a été amendé par moins de 12 fois depuis son adoption. En plus du Règlement (CE) No. 850/98, des mesures techniques applicables aux pêcheries du Nord Atlantique et de la Mer du Nord se trouvent dans un nombre important d’autres règlements, dont le Règlement (CE) No. 2056/2001 (mesures cabillaud), 494/2002 (mesures pour le merlu) ou le 732/2012 (mesures pour la Mer Celtique). Par ailleurs, des mesures techniques spécifiques pour la protection des écosystèmes, par exemple pour les cétacés (Règlement (CE) No. 812/2004), ou des mesures de mise en œuvre de procédures de mesures de la taille des mailles ou encore l’introduction de fermetures en temps réel de zones dans la Mer du Nord et le Skagerrak ont également été approuvées. Des mesures techniques étaient également incorporées aux règlements annuels sur les TAC et quotas comme un mélange de mesures régionales spécifiques et de dérogations aux prescriptions du Règlement (CE) No. 850/98 jusqu’à l’entrée en vigueur du Traité de Lisbonne (TFUE).

En 2004, le Conseil a recommandé que les mesures techniques pour le Nord Atlantique et la Mer du Nord puissent être simplifiée et également régionalisées pour tenir compte de la création des CCR par la réforme de la Politique Commune de la Pêche en 2002. Les règlements mesures techniques ont également été identifiés comme un cas pilote pour la simplification sous le Plan d’Action de la Commission 2006-2008 sur la simplification de la PCP. En 2008, la Commission a formulé une nouvelle proposition de mesures techniques pour le Nord Atlantique et la Mer du Nord, accompagné d’une étude d’impact. Cette proposition n’a pu faire l’objet d’un accord politique, et par conséquent, les mesures techniques introduites en 1998 restent d’application.

Les mesures techniques actuelles ne sont pas considérées comme efficaces par les Etats membres et l’industrie de la pêche qui la règlementation trop complexes, excessivement prescriptives et difficiles à comprendre, à appliquer et à contrôler. En utilisant les mêmes mots que la Commission européenne, le résultat des tous les amendements donne un « dédale législatif – une accumulation de dispositions se chevauchant, parfois contradictoires, autorisant une multitude de dérogations et d’exceptions, éparpillées dans une kyrielle de textes juridiques extrêmement différents »2

• Reconnaissant ces déficiences, les discussions tenues au cours du processus de réforme de la PCP ont conduit à un engagement de la Commission de préparer une nouvelle proposition de mesures techniques post-réforme. Cette proposition sera guidée par les principaux objectifs suivants :

• De simplifier et d’améliorer l’efficacité des mesures techniques en prenant en considération les impacts environnementaux, tels que la minimisation des rejets en mer et la protection des espèces sensibles et des habitats marins.

• De contribuer à la mise en œuvre de l’engagement international de ramener et maintenir tous les stocks européens au niveau où ils peuvent produire le Rendement Maximal Durable (RMD) ;

• De contribuer aux objectifs et cibles du Bon Etat Ecologique (BEE) comme établi par la Directive Cadre Stratégie pour le Milieu Marin (DCSMM), ainsi que ceux des autres textes legislatifs portant sur l’environnement comme les Directives habitats et Oiseaux (connues sous le nom de Directives Natura 2000).

• De décentraliser le processus de décision par le biais de la régionalisation de la PCP et donner plus de responsabilités aux parties prenantes par un changement vers un système de

2 La Politique Commune de la Pêche - Guide l’utilisateur, 2009


gestion fondé sur les résultats, par opposition au cadre actuel de gestion prescriptive descendante.

Comme cela est exigé par les procédures de l’UE, la réforme des mesures techniques doit être accompagnée d’une évaluation rétrospective du cadre existant pour soutenir toute nouvelle proposition. Sous ce contexte, la DG MARE a contracté le consortium d’entreprises dirigé par le MRAG Ltd pour lui fournir une assistance dans l’évaluation des règlements mesures techniques actuels puis pour réaliser une étude d’impact afin de préparer une nouvelle proposition qui sera présentée en 2014. Ce rapport se concentre sur l’évaluation rétrospective (ex-post) des règlements mesures techniques en vigueur. Cette évaluation rétrospective a été menée au cours du premier semestre 2013 principalement (i) en analysant la littérature scientifique et technique disponible sur le sujet et découlant de programmes de recherche spécifiques ou d’évaluations réalisées par des groupes de travail du CSTEP et du CIEM, (ii) en organisant des rencontres avec les autorités en charge de la gestion et du contrôle des pêches, les instituts de recherche et les principales organisations professionnelles du secteur dans les Etats membres ayant des intérêts significatifs dans les pêcheries du Nord Atlantique et de la Mer du Nord (Belgique, Danemark, France, Irlande, Pays-Bas, Espagne et Royaume-Uni, et (iii) en étudiant les documents politiques et législatifs de l’UE pertinents avec des discussions avec des représentants de la Commission européenne et de l’Agence Européenne de Contrôle des Pêches (AECP).

En quoi consistent les mesures techniques ?

La gestion des pêches cherche à réguler les quantités et la composition des captures afin de s’assurer du renouvellement des populations d’espèces commerciales, tout en minimisant les impacts sur les écosystèmes marins. Les deux leviers de régulation sont traditionnellement :

• Le taux d’exploitation, i.e. la proportion de produits de la pêche qui peut être extraite de la population. Les principaux outils utilisés sont des limitations sur les quantités totales qui peuvent être capturées par la fixation de limites de captures (TAC & quota), ou par des limitations sur les niveaux d’effort de pêche par un contrôle de la capacité des flottes (globalement ou par le biais d’autorisations de pêche) et/ou par la fixation de limites sur le temps qu’un navire peut passer en mer (limites sur l’effort).

• Le profil d’exploitation, i.e. la proportion à chaque âge qui peut être extraite de la population. Le profil d’exploitation est géré en utilisant des instruments qui définissent ou, quand et comment une entreprise de pêche peut exploiter et interagir avec les ressources marines et l’écosystème marin. Le cadre de gestion des aspects techniques des opérations de pêche correspond aux mesures techniques.

Les mesures techniques peuvent être schématiquement regroupées en (i) les mesures qui régulent les caractéristiques des engins de pêche qui sont utilisés, comme la réglementation des tailles des mailles, de l’épaisseur des fis ou sur l’emploi de dispositifs sélectifs, et les conditions associées à l’emploi de ces engins (les règles de composition des captures), et (ii) les mesures qui réglementent les opérations de pêche comme par exemple des limites sur la durée ou sur la nature des engins qui peuvent être utilisées, des tailles minimales au débarquement et des contrôles spatiaux et temporels comme des zones interdites ou à accès limité à la pêche, et des fermetures saisonnières. Considérées ensemble, les mesures techniques visent à contrôler la capture qui peut être obtenue avec un niveau d’effort donné. Les principaux objectifs spécifiques des mesures techniques sont de réduire les captures non-désirées d’espèces marines et de soutenir l’atténuation des impacts de la pêche sur l’environnement marin.

S’agissant de son architecture juridique, l’aspect le plus frappant du cadre réglementaire actuel des mesures techniques sous la PCP est sa structure rigide. Au contraire des pratiques courantes à travers le monde où les mesures techniques sont invariablement fixées par des actes juridiques secondaires (décrets, règlements, etc …) adoptés par le Gouvernement ou le Ministre en charge du


secteur de la pêche sur la base de pouvoirs conférés par une loi cadre, la grande majorité des règlements mesures techniques adoptés par l’Union à ce jour sont des Règlements du Conseil, et depuis l’entrée en vigueur du TFUE, sous la procédure de codécision qui requière un accord entre le Conseil et le Parlement européen. La structure juridique actuelle ne donne pas de pouvoirs à la Commission pour adopter des mesures techniques sous la forme de Règlements de la Commission (maintenant sous la forme d’actes délégués ou d’exécution sous le TFUE), sauf dans le cas de situations d’urgence, i.e. soit des mesures curatives par opposition à des mesures préventives. Les Etats membres peuvent également adopter unilatéralement des mesures techniques à la condition qu’elles ne soient pas moins strictes que les mesures de l’UE. Ces mesures s’appliquent sur les navires nationaux où qu’ils opèrent, ou sur tous les navires dans leurs eaux territoriales.

Les principales leçons de l’évaluation des mesures techniques

Les règlements mesures techniques applicables actuellement ont été évalués vis-à-vis des critères de pertinence, d’efficacité, d’efficience, de cohérence et d’acceptabilité.

L’évaluation du critère de pertinence indique que les mesures techniques sont nécessaires et continueront à l’être en tant qu’instrument pour réguler la mortalité par pêche et l’impact de la pêche sur les écosystèmes marins. Leurs objectifs sont particulièrement pertinents. Les mesures techniques complètent les autres mesures de gestion utilisées par l’UE portant notamment sur les possibilités de pêche et les autres mesures destinées à assurer un équilibre entre les capacités de pêche et le potentiel des stocks exploités. Cependant, l’évaluation indique que les modalités de l’intervention n’est plus pertinente pour traiter les besoins et les objectifs. L’architecture juridique en vigueur pour réglementer les mesures techniques qui utilise une gestion descendante centralisée par le Conseil et le Parlement européen se montre trop rigide et pas suffisamment flexible pour contribuer aux objectifs de la PCP réformée. Néanmoins, le mécanisme actuel soutient au moins partiellement des règles de jeu équitables pour toutes les pêcheries, un mérite largement reconnu par les autorités des Etats membres en charge de la gestion du secteur et par les associations professionnelles.

De nombreuses preuves appuie la démonstration que les mesures techniques ne sont pas efficaces pour éviter la capture de juvéniles et d’espèces non-désirées. Comme l’indique une revue de la littérature scientifique, plusieurs engins de pêche légaux sont non-sélectifs principalement du fait d’un décalage entre la sélectivité des engins et les tailles minimales au débarquement ou les tailles commerciales en particulier dans les pêcheries mixtes, forçant les professionnels à rejeter des quantités importantes de poissons sous taille ou de taille commerciale. La pêcherie de poissons plats en Mer du Nord constitue un exemple emblématique de pêcherie mixte pour laquelle l’engin légal (un chalut à perche équipé d’un cul de chalut de mailles de 80 mm) peut être efficace pour soutenir les objectifs de conservation d’une espèce (la sole) mais qui se révèle inadéquat pour les autres espèces capturées durant les mêmes opérations de pêche (captures importantes de plies sous-taille, de poissons blancs). La même constatation peut être faite pour les pêcheries ciblant la langoustine dans différentes pêcheries (Mer du Nord, Mer Celtique, Golfe de Gascogne) avec un engin légal qui n’est pas efficace pour éviter les captures de langoustines sous-tailles et d’espèces comme le merlan, l’églefin ou le cabillaud.

Ceci suggère que les outils réglementaires utilisés, qui incluent des prescriptions sur les engins de pêche et les conditions associées à leur utilisation (règles de composition des captures) et des fermetures de zones pour protéger les concentrations de juvéniles ou d’adultes reproducteurs ne sont pas suffisamment adaptées aux spécificités des différentes pêcheries de l’UE. Les problèmes sont les plus importants pour les pêcheries mixtes utilisant des engins traînants. La faible efficacité des mesures techniques pour éviter les captures non-désirées peut également être attribuée en partie au manque de pertinence des modalités de l’intervention qui ne peut prendre en compte les spécificités locales de manière proportionnée.


S’agissant des impacts de la pêche sur l’environnement marin, les quelques mesures techniques adoptées par l’UE à ce jour pour minimiser les interactions avec les espèces protégées sont évaluées être largement inefficace et ne couvrent pas de manière appropriée les bonnes espèces et pêcheries associées. Par exemple, il est estimé que le Règlement du Conseil (CE) No. 812/2004 sur la protection des cétacés devrait être étendu de manière à fournir un suivi efficace et des mesures d’atténuation pour les navires de toutes les catégories de taille dans les principales pêcheries où les captures de cétacés sont un problème. Les autres espèces protégées, incluant les oiseaux de mer, les reptiles marins et les pinnipèdes de sont pas protégés d’interactions avec les engins de pêche par des mesures techniques de l’UE.

Les mesures techniques sont efficaces pour la protection des habitats quand elle demande la fermeture de la pêche pour les navires utilisant des engins entrant en contact avec le fond. Cependant, les connaissances scientifiques sur la distribution des écosystèmes profonds vulnérables progressent et certaines mesures de protection, en particulier celles approuvées sous le contexte multilatéral de la convention de mer régionale (OSPAR) attendant toujours d’être intégrées dans les acquis de l’UE. Par ailleurs, les futures aires marines protégées ne seront pas nécessairement des zones ‘no-take’ pour les engins de pêche démersaux, et il est estimé que les réglements mesures techniques actuels ne seront pas adaptés pour réguler les activités de pêche en cohérence avec les objectifs habitats à une échelle locale si fine.

L’évaluation de l’efficience, quand on considère les coûts de contrôle, de recherche et les fonds structurels en relation avec les mesures techniques, et les impacts / bénéfices résultants, pose problème quand il s’agit d’indicateurs quantitatifs. Quelques améliorations de l’efficience des coûts ont été réalisées ces dernières années au travers d’une collaboration accrue entre les agences en charge du contrôle dans un même Etat membre et entre plusieurs Etats. Le contrôle de mesures techniques spécifiques requière l’utilisation de moyens de contrôle qui peuvent être coûteux mais justifiés du fait de leurs capacités de détection, e.g. patrouilles en mer pour contrôler l’application des mesures sur les engins. Des approches SCS basées sur le risque ont également permis d’améliorer l’efficience du contrôle. Cependant, la prise en compte d’un certain nombre de critères / principes suggère que le rapport coût efficacité n’a pas été optimisé car : les résultats du contrôle ne sont pas disponibles à toutes les parties prenantes, les mesures pour corriger la réglementation sont très longues, la réglementation est souvent peu claire et ambigüe, et il y a une grande étendue de législation fragmentaire qui a été mise en œuvre avec le temps. Le ciblage fort du SCS des mesures techniques in situ plutôt que sur les résultats, et le cadre inflexible base sur un niveau de spécificité et d’acceptabilité régional, ont nuit à l’efficience. Le rapport coût-bénéfice des programmes de recherches ciblés sur les mesures techniques apparaît également questionnable du fait du faible niveau d’utilisation des résultats par le secteur privé.

Bien que leurs objectifs soient cohérents avec les objectifs généraux de la politique de l’UE, les mesures techniques ont des effets non-prévus qui pourraient nuire à ces objectifs (problème de cohérence interne). Le principal effet non-prévu des règlements mesures techniques est qu’il créée les conditions pour rejeter des captures de poissons en mer, nuisant ainsi à l’objectif de conservation de la PCP, à la Directive Cadre Stratégie Milieu Marin et aux objectifs de Europe 2020. Egalement, l’approche descendante prescriptive forme un incitatif à la mauvaise utilisation du potentiel d’innovation de l’industrie que la politique Europe 2020 cherche à promouvoir.

Les interviews des représentants professionnels organisés dans le cadre de cette évaluation ont permis d’établir que les règlements mesures techniques actuels sont peu acceptés par les pêcheurs. Quelques règles sont perçues comme contreproductive pour la conservation des stocks, et souvent imposées sans objectifs clairs. De plus, il est ressenti que l’’industrie de la pêche a été insuffisamment associée dans la définition des mesures techniques, bien que la situation se soit améliorée avec l’intégration des CCR dans le processus décisionnel. Les mesures techniques de l’UE seront mieux acceptées, et respectées, si l’industrie de la pêche participe à leurs développements, si


les mesures ont des objectifs clairs de conservation, et si elles sont suffisamment flexibles pour être adaptées à des circonstances changeantes. Par ailleurs, l’industrie de la pêche indique que l’adoption de dispositifs sélectifs devrait faire l’objet d’incitatifs pour compenser l’inévitable baisse de revenus à court terme qu’ils provoquent. Par exemple, le Règlement du Conseil (CE) No. 1342/2008 qui a introduit des possibilités de dérogations au régime d’effort de pêche pour les navires qui utilisent des mesures d’évitement du cabillaud, incluant des engins sélectifs, a supporté la mise en œuvre de pratiques de pêche plus sélectives souvent développées au travers de partenariat science-industrie. Cet exemple montre que des incitatifs positifs avec récompense pour faire certaines choses peut mieux fonctionner que des pénalités.

L’avenir

Au global, les leçons de l’évaluation ex-post suggèrent que la gouvernance du cadre des mesures techniques devrait être réformée pour s’échapper de l’approche actuelle descendante prescriptive et aller vers un approche ascendante plus décentralisée intégrant une meilleure adaptation des mesures aux contextes locaux, plus de flexibilité et d’adaptabilité et les connaissances de l’industrie dans la définition des mesures. En général, et plus particulièrement concernant les spécifications des engins de pêche, une approche fondée sur les résultats se concentrant sur les effets plutôt que sur les entrées devrait constituer une approche plus efficace. Ce type d’approche donnerait aux professionnels de la pêche des incitatifs pour appliquer leurs connaissances (sur les engins, les zones de pêche, le comportement des espèces, les habitats), et des capacités d’innovation pour atteindre efficacement des objectifs définis, plutôt que de chercher à réduire les effets de règlements détaillés et prescriptifs. La rigidité du système actuel et sa tentative de réglementer toutes les pêcheries avec un instrument unique sont identifiées comme les principaux facteurs nuisant à l’efficacité des mesures techniques pour soutenir les objectifs généraux de la politique de l’UE.

L’approche très prescriptive adoptée jusqu’alors a contribué à placer une lourde charge sur les autorités des Etats membres en charge du contrôle avec un besoin de contrôler le respect des règles plutôt in situ avec des moyens opérationnels coûteux. Considérant la faible efficacité des mesures techniques à soutenir l’objectif de conservation, l’investissement dans le contrôle apparaît faiblement récompensé. Un changement vers une approche fondé sur les résultats pourrait contribuer à alléger la pression de contrôle sur les Etats membres, bien que l’expérience montre qu’une approche prescriptive par les Etats membres est toujours nécessaire pour maintenir un terrain de jeu équitable.

Quelque soit la solution retenue pour les réforme des règlements mesures techniques, il est souhaitable que l’UE puisse conserver un rôle pour assurer qu’un terrain de jeu équitable est maintenu pour toutes les pêcheries. La contribution du cadre actuel à la constitution d’un terrain de jeu équitable est largement reconnue par les autorités des Etats membres et par l’industrie de la pêche, et considéré comme une condition nécessaire à l’acceptabilité des mesures techniques dès lors que les pêcheries ont une dimension transnationale.

***

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Introduction

Fisheries management aims to regulate the amount and composition of fish species caught to ensure ongoing reproduction potential of commercially exploited stocks while minimising negative impacts on the broader ecosystem. This has traditionally focused on regulating two aspects:


• The exploitation pattern, i.e. the proportion at each age of fish that are removed from the population. The exploitation pattern is regulated using instruments which define where, when and how a fishing enterprise can exploit and interact with marine resources and the wider marine ecosystem. The management framework of technical aspects of fishing operations corresponds to technical measures.

In 2004, the Council recommended that the technical measures for the Atlantic and the North Sea be simplified and also regionalised reflecting the creation of the Regional Advisory Councils (RACs) in the 2002 reformed Common Fisheries Policy (CFP). However, political agreement was not reached on a Commission proposal that attempted to simplify the regulations. Later under a Commission Action Plan 2006-2008 on simplification of the CFP technical measures were identified as a fundamental test case for simplification. In 2008, the European Commission came up with a new proposal3 for technical measures for Western waters and the North Sea. This was accompanied by an impact assessment4, but a failure to reach a political agreement meant that this proposal was not adopted and the measures introduced in 1998 still remain in force.

The current technical measures are not considered effective by Member States and stakeholders and in fact the impact assessment that accompanied the 2008 Commission proposal provided some general indications on the poor performance of technical measures as follows:

• Many legal gears are unselective resulting in high levels of discarding;

• Some of the current regulations are unenforceable or are easily circumvented by fishers;

• Stakeholders continue to have only a limited involvement in the technical measures decision-making process resulting in a prescriptive, top-down management system;

• The existing technical measures do not provide adequate protection for other ecosystem components such as protected species or sensitive habitats.

Recognising these shortcomings, the discussions during the reform of the CFP have led to a political commitment being given by the Commission to come forward with a new proposal for technical measures post-reform. This new proposal is given the following main objectives:

• To simplify and improve the effectiveness of technical measures taking into account of the consideration of environmental impacts, such as the minimising of discards and the protection of sensitive species and marine habitats.

3 COM (2008) 324 Proposal for a Council Regulation concerning the conservation of fisheries resources through technical measures 4 SEC (2008) 1978 Impact Assessment regarding the Commission's proposal for a Council Regulation concerning the conservation of fisheries resources through technical measures in the Atlantic and the North Sea


• To contribute to the implementation of the commitment to bring all European fish stocks to a state where they can produce the Maximum Sustainable Yield (MSY)

• To contribute to the objectives and targets for “Good Environmental Status” (GES) as established under the Marine Strategy Framework Directive (MSFD), as well as other environmental conservation legislation such as the Habitats and Birds Directives (later two also known as the Natura 2000 Directives)

• To decentralise the decision-making process through the regionalisation of the CFP and put more responsibilities on stakeholders through a shift to a result-based management system, as opposed to the current prescriptive top-down management framework.

As required by the procedures in the EU, the reform of technical measures must be accompanied by an evaluation of the existing policy framework and an impact assessment to support any new proposal. Accordingly, DG MARE has contracted the consortium of enterprises led by MRAG Ltd to assist in the evaluation of the current regime to support a new Commission proposal on technical measures5 and carry out an impact assessment to support a new proposal to be tabled by the Commission in 2014. The evaluation has two distinct parts:

• A retrospective (ex-post) evaluation of the existing technical measures regulations in place in terms of their relevance, effectiveness, efficiency, coherence and acceptance.

• A prospective evaluation (ex-ante) of the likely economic, social and environmental impacts, as well as the effectiveness, efficiency and coherence of three different policy options for future technical measures.

This report concentrates on the retrospective (ex-post) evaluation of the current technical measures framework as well as providing a preliminary methodology for addressing the prospective ex-ante evaluation of a reformed technical measures regulation. The scope of this proposal is limited to Western waters and the North Sea.

The methodology adopted for the retrospective evaluation included the following components:

• A review of the existing scientific and technical literature in relation to technical measures from specific research programmes as well as evaluations carried out by STECF and ICES working groups. Fishing gear technology and identification of alternatives to reduce discards have generated a great amount of published material available in the public domain. The references used are cited in the report and listed in the reference list at the end of this evaluation report.

• Discussions with managing authorities, control authorities, scientific institutes and fishermen’s organisations in the Member States having significant fishing interests in the North Atlantic and in the North Sea (Belgium, Denmark, France, Ireland, Netherlands, Spain, United Kingdom). The consultations have been organised through individual meetings during the period March - May 2013 on the basis of harmonised structured interviews guidelines. Annex 4 lists the entities consulted for the purpose of the retrospective evaluation of the technical framework.

• Analysis of EU relevant policy and legislative documents backed by discussions with European Commission representatives (DG MARE and DG ENV) in Brussels and with the European Fisheries Control Agency (EFCA) based in Vigo.

5 In the context of the framework contract MARE/2011/01 on Evaluation and impact assessment activities for the Directorate-General for Maritime Affairs and Fisheries, in particular within Lot 2 on Retrospective and prospective evaluations on the common fisheries policy, excluding its international dimensions


Part A The EU Technical Measures Framework: Presentation and main Issues

A.1 Background

A.1.1 Historical development of the EU technical measures framework

Technical measures have a long history as regulatory tools. On the intuitive belief that immature individuals should be preserved from exploitation, fishing legislations dating back to the XVIIIth Century, and even before, already incorporated limitations on the mesh sizes of nets and minimum landings size to supplement minimum mesh size regulations (Burd, 1986).

Since the early 80’s, technical measures in the area of competence of the EU (vessels fishing in EU waters and EU vessels fishing anywhere) have evolved at a quick pace. The following sections summarise the recent evolution of technical measures in the various sea basins exploited by EU vessels, largely based on the identification work done by STECF (2012a).

The first technical measures regulation for EU fisheries in the Northeast Atlantic and the North Sea was introduced in 1980 under Regulation (EEC) No. 2527/806 prior to agreement of the first Common Fisheries Policy (CFP) in 1983. This Regulation was originally supposed to remain in force for a very short period but in fact remained in place until the CFP was agreed in 1983. Regulation (EEC) No 2527/80 already contained definitions of areas, mesh size and catch composition regulations, minimum landing sizes, prohibitions on certain gears, closed area/seasons and gear restrictions as well as the legal basis for the establishment of emergency measures.

After adoption of the CFP in 1983, Regulation (EEC) 2527/80 was replaced by Regulation (EEC) No 171/837. It very much consolidated the measures contained in Regulation (EEC) No. 2527/80 and was subsequently amended six times to include specific regional provisions in certain fisheries (e.g. restrictions on the length of beam trawls, changes in mesh sizes, new closed areas). Specific measures applying to Spain and Portugal were also introduced as an amendment to Regulation (EEC) No 171/83 following the Accession of Spain and Portugal in 1985.

In 1986, recognising that there was a need once again to consolidate the technical measures, Regulation (EEC) No 171/83 was repealed and replaced by Regulation (EEC) No 3094/868. This Regulation contained all the elements of Regulation (EEC) No 171/83 and all of the amendments to it as well as several new elements on scientific research and restocking and transplantation. Regulation (EEC) No 3094/86 remained in force for the next 11 years during which time it was amended no less than nineteen times. The majority of these amendments increased minimum mesh sizes or introduced new minimum landing sizes or closed areas/gear restrictions. However, several of these amendments introduced new elements into the technical measures regulations. Regulations (EEC) No 4056/899

6 Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources 7 Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources 8 Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources 9 Council Regulation (EEC) No 4056/89 of 19 December 1989 amending for the ninth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources


and 345/9210, for the first time, allowed the use of selective gears as derogations from the minimum mesh size regulations.

In 1987, the EU once again recognised that the technical measures had become unwieldy and in need of consolidation. Therefore Regulation (EC) No. 894/9711 was enacted to replace Regulation (EEC) No 3094/86 and its associated amendments. This Regulation was only amended once, by Regulation (EC) No. 1239/9812 which introduced more restrictive measures on the use of driftnets following global debates on the use of such gears. After a short period, the EU then decided that the measures included under Regulation (EC) No. 894/97 contained a number of inconsistencies and were unduly complex and therefore it was replaced almost in its entirety by Regulation (EC) No. 850/9813. This was a first real attempt to adapt technical measures to the diversity of fisheries and the need for homogeneous rules across regions. It included new measures to improve the selectivity of towed gears by applying detailed rules on the construction of fishing gears (e.g. codend circumference, twine thickness, number of meshes in the circumference), making the use of square mesh panels mandatory in certain fisheries, additional closed areas/seasons and gear restrictions as well as maintaining the legal architecture for emergency measures and the development of local measures for inshore fisheries within MS territorial waters.

Council Regulation (EC) No. 850/1998 remains in force and since its adoption, the regulation has been amended no less than twelve times. In addition to Regulation (EC) No. 850/98, technical measures of relevance for the North Sea and the Atlantic are also found in a number of other regulations including Regulation (EC) No. 2549/200014 & 2056/200115 (cod measures) and 494/200216 (hake measures). Additionally specific ecosystem protection regulations for example on cetaceans (Regulation (EC) No. 812/200417) as well as detailing implementing rules for the measurement of mesh size and the introduction of real-time closures in the North Sea and Skagerrak have also been enacted.

Technical measures were also included under the TAC & quotas Regulation for many years as a mixture of regionally specific measures and derogations from the provisions of Regulation (EC) No. 850/98 up until entry into force of the Treaty of Lisbon (TFEU). These covered a wide area from the North Atlantic and North Sea, Skagerrak and Kattegat to measures for international waters (e.g. NEAFC). Following the entry into force of the TFEU, technical conservation measures could no longer be included in the annual fishing opportunities regulations for legal reasons. Therefore, the Council adopted two successive regulations to ensure that the temporary technical measures listed in the

10 Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the eleventh time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources 11 Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain technical measures for the conservation of fishery resources 12 Council Regulation (EC) No 1239/98 of 8 June 1998 amending Regulation (EC) No 894/97 laying down certain technical measures for the conservation of fishery resources 13 Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms 14 Council Regulation (EC) No 2549/2000 of 17 November 2000 establishing additional technical measures for the recovery of the stock of cod in the Irish Sea (ICES Division VIIa) 15 Commission Regulation (EC) No 2056/2001 of 19 October 2001 establishing additional technical measures for the recovery of the stocks of cod in the North Sea and to the west of Scotland 16 Commission Regulation (EC) No 494/2002 of 19 March 2002 establishing additional technical measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e 17 Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98


TAC & quotas regulations would remain in place. Recently the EU adopted Regulation (EU) No 227/201318 to definitively incorporate these measures into Regulation (EC) No. 850/98.

The evolution of technical measures in the Baltic Sea is equally complex. The first regulation was introduced in 1986 and contained minimum mesh sizes, minimum landing sizes and seasonal and area closures. Regulation (EC) No. 1866/8619 was subsequently amended six times, with additional derogations to the technical measures included in the TAC & quotas Regulations for the Baltic on two occasions. Regulation (EC) No. 1866/86 was repealed in 1998 and replaced by Regulation (EC) No. 88/199820, which was amended three times before being replaced itself by the current regulation, Regulation (EC) No. 2187/200521. This has been amended three times, principally by Commission Regulation (EC) No. 686/201022, which increased the general mesh sizes of gears in the Baltic and also removed some detailed provisions that were deemed no longer necessary.

Technical measures were only introduced in the Mediterranean in 1994, ten years after the adoption of the first CFP. This was largely because the international dimension in the Mediterranean had made it difficult to introduce analogous rules as already existed in the other sea basins. The first Regulation (EC) No. 1626/199423 contained not only minimum landing sizes, closed areas, gear restrictions for towed, encircling and static gears, and prohibited gears but also the first attempts at measures to protect other ecosystem components such as marine mammals, seabirds and sensitive habitats. These ecosystem measures were in the form of measures to be taken nationally by Member States. Regulation (EC) No. 1626/1994 was subsequently amended seven times over the next ten years before being replaced by the current Regulation (EC) No. 1967/200624. In line with the original regulation for the Mediterranean, Regulation (EC) No. 1967/2006 contains a mixture of detailed gear restrictions and closed or restricted areas as well as measures aimed at protecting non-target species and sensitive habitats. Since its introduction it has been amended only once in 2011.

In external waters, technical measures are agreed under the multilateral context of RFMOs or under the bilateral context of fishing agreements. For highly migratory species regulated by ICCAT, IOTC, WCPFC or IATTC, technical measures include minimum sizes, time area closures as well as measures to mitigate catches of protected species. Demersal fisheries regulated by NEAFC (North East Atlantic), NAFO (North West Atlantic) or CCMALR (Antarctic) include a similar mixture of measures plus specific measures on the dimensions of permitted fishing gears. Under the bilateral context of fishing agreements, EU vessels have to comply with technical measures enacted by the Coastal State, unless the bilateral agreements themselves contain specific technical measures. Technical measures in external waters are enacted in specific regulations such as Regulation (EC)

18 Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 March 2013 amending Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No 1434/98 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption 19 Council Regulation (EEC) No 1866/86 of 12 June 1986 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound 20 Council Regulation (EC) No 88/98 of 18 December 1997 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound 21 Council Regulation (EC) No 2187/2005 of 21 December 2005 for the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 1434/98 and repealing Regulation (EC) No 88/98 22 Commission Regulation (EU) No 686/2010 of 28 July 2010 amending Council Regulation (EC) No 2187/2005 as regards specifications of Bacoma window and T90 trawl in fisheries carried out in the Baltic Sea, the Belts and the Sound 23 Council Regulation (EC) No 1626/94 of 27 June 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean 24 Council Regulation (EC) No 1967/2006 of 21 December 2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea, amending Regulation (EEC) No 2847/93 and repealing Regulation (EC) No 1626/94


No. 520/2007 25 (highly migratory species) or Regulation (EC) No. 734/200826, (protection of deep-sea corals) or in the annual TAC & quotas regulations.

As can be seen from the above, the history of technical measures in EU waters and also in non-EU waters is one of numerous regulations, amendments, implementing rules and temporary technical measures introduced into the annual TAC and Quota Regulations as a stop-gap. Across all the different sea basins, including non-EU waters, since 1980 no less than 90 different technical measures regulations or regulations containing technical measures have been enacted by the EU. This number also includes regulations now superseded by more recent regulations. Figure 1 shows the progression over time of the number of technical measures regulations enacted. These regulations are detailed in appendix I.

Figure 1: Cumulative number of technical measures regulations introduced since 1980. Source: STECF (2012a)

Figure 1 clearly illustrates the proliferation of technical measures and helps to confirm the views of many that technical measures are too complex, over-prescriptive, and difficult to understand, control and enforce. In the words of the European Commission (EC, 2009), the result of all of these amendments is a “legislative labyrinth; a mass of overlapping, and sometimes contradictory provisions, allowing multiple derogations and exceptions, scattered throughout a range of very different legal texts”.

A.1.2 Structure by gear of the EU fishing fleet operating in the North Sea and in the North Atlantic

The current technical measures focus on the regulation of active (towed) gears as they are the most commonly used in EU fisheries and have the highest impact on the marine ecosystem (high by-catch rates of unwanted specimens, environmental footprint). The importance of the EU fishing fleet using

25 Council Regulation (EC) No 520/2007 of 7 May 2007 laying down technical measures for the conservation of certain stocks of highly migratory species and repealing Regulation (EC) No 973/2001 26 Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears


active gears based on fleet capacity indicators and contribution to overall landings can be summarised as follows:

Table 1 presents the fleet capacity indicators by main gear for the EU fleet operating in the supra region Baltic Sea, North Sea, Eastern Arctic, North Atlantic excluding the Mediterranean for 2010. The table shows that the majority of fishing capacity using active gears representing 62% and 83% of total engine power and vessel tonnage respectively. Demersal trawling represents 29% of total power and 37% of total tonnage of the EU fleet active in the supra region. Other towed gear fisheries such as beam trawl (respectively 10% and 11% of total power and total tonnage) and pelagic trawl (respectively 10% and 22% of total power and total tonnage).

Table 1: Breakdown of fleet capacity indicators by main gear for the EU fleet active* in the supra region Baltic Sea, North Sea, Eastern Arctic, North Atlantic in 2010. Source: DCF transversal (capacity) data

Engine power (KW)

Vessel tonnage (GT)

% KW % GT

Active gears

Demersal trawlers and/or demersal seiners (DTS)

864 883 304 410 29% 37%

Beam trawlers (TTB) 299 869 88 345 10% 11% Pelagic trawlers (PTS) 290 887 177 778 10% 22% Purse seiners (PS) 199 784 78 744 7% 10% Dredgers (DRB) 144 659 31 202 5% 4% Vessels using polyvalent active gears only (MGP)

27 055 5 094 1% 1%

Vessel using other active gears (MGO) 10 401 509 0% 0%

Passive gears

Vessels using pots and/or traps (FPO) 228 193 23 592 8% 3% Drift and/or fixed netters (DFN) 210 338 36 556 7% 4% Vessels using passive gears only for vessels < 12m (PG)

201 266 15 669 7% 2%

Vessels using polyvalent passive gears only (PGP)

114 393 10 834 4% 1%

Vessels using hooks (HOK) 99 176 16 428 3% 2% Vessels using other passive gears (PGO) 6 994 265 0% 0%

Misc. Inactive (INA) 141 516 19 783 5% 2% Vessels using active and passive gears (PMP) 93 657 14 384 3% 2%

TOTAL 2 933 071 823 596 100% 100% * Except Spain, no data reported.

In terms of contribution to landings, Figure 2 indicates that active gears represented 90% of landings in weight in FAO area 27 and 78% in value for 2010. Passive gears (i.e. gillnets, longlines, pots) have a much lower contribution, 8% and 19% in weight and value respectively with the balance representing vessels utilising both active and passive gears. Within the active gears segments, demersal trawling contributes alone to 39% of total landings in weight and 41% in value. Other important gear types include pelagic trawls (respectively 31% in weight and 11% in value) and beam trawl (respectively 4% in weight but 12% in value).


Figure 2: Contribution by gear types to total landings from FAO area 27 (Atlantic North East) in 2010. From DCF transversal (landing) data.

The fishing fleets of the Member States operating in the supra-region Baltic Sea, North Sea, Eastern Arctic, North Atlantic have very different fleet compositions when classified by fishing gear type. This is a consequence of the availability of the resources within fishing zones and historical fishing activities.

Table 2 shows different examples of fleet segmentation by Member States in the supra-region.

Table 2: Breakdown of fishing capacity (in KW) by gear type* for some Member States active in the supra region Baltic Sea, North Sea, Eastern Arctic, North Atlantic in 2010. Source: DCF transversal data

Active gears Passive gears Mix

Gear TTB DTS PTS DRB PS O. active DFN HOK O. passive PMP

DNK 3% 64% 0% 3% 0% 0% 0% 19% 10%

NLD 58% 6% 29% 1% 0% 0% 6% 0% 0% 0%

GBR 5% 35% 0% 7% 22% 0% 6% 5% 20% 0%

IRL 3% 27% 29% 16% 0% 0% 8% 1% 15% 0%

FRA 0% 37% 6% 9% 1% 6% 21% 7% 10% 3%

PRT 0% 23% 0% 2% 11% 0% 10% 8% 27% 19%

Gear codes used are detailed in Table 1

In Denmark; the fleet is composed primarily of demersal trawlers and seiners (64%) with vessels using passive gears (19%) and polyvalent active / passive representing the remainder of the fishing capacity.

In Netherlands, more than half of the National fishing capacity in KW is in the beam trawl segment. A further 29% of capacity is concentrated in the pelagic trawling segment and relatively few using passive gears (6%).

In the United Kingdom, 70% of the fishing capacity is in active gear segments (35% demersal trawls and 22% pelagic nets).

In Ireland, 70% of the fleet use active gears with demersal trawls and pelagic trawls representing 27% and 29% of the fleet respectively. A further 16% of the capacity use dredges,

0

500 000

1 000 000

1 500 000

2 000 000

2 500 000

3 000 000

Active Passive Mix

Landing (tonnes)

Landings (KEUR)


In France, 37% of fishing capacity is accounted for by demersal trawlers with active gears representing 59% of the total French fishing capacity in 2010. However, a sizeable portion of the fleet capacity (38%) use passive gears, predominantly gillnets (21%).

In Portugal, the situation is markedly different from other Member States considered. Passive gears are the dominate gear types with demersal trawls representing only 23% of the Portuguese capacity with purse seines another 11%.

No data is available for Spain.

A.1.3 The legal architecture for technical measures

In terms of its legal ‘architecture’ the most striking aspect of the current framework for technical measures under the CFP is its rigid structure. Unlike common practice around the world where technical measures are invariably set out in subordinate legislation (in the form of decrees, regulations etc.) adopted by the government or the minister responsible for fisheries, on the basis of powers conferred to that end by the relevant fisheries law, the vast majority of CFP technical measures regulations adopted in the Union to date have been as Council Regulations requiring agreement by all Member States and latterly under co-decision requiring agreement by the Council and the European Parliament.

National fisheries laws provide for the adoption of technical measures as subordinate legislation mainly for reasons of speed and flexibility, as new rules can be readily adopted and amended without the need for consideration by national parliaments. Moreover national legislatures are usually content to delegate powers to adopt what are essentially technical rules for the implementation of a fisheries law without the need for full parliamentary scrutiny with the time and other burdens that that would impose. For example in France, the framework fisheries Law delegates to the Minister in charge of fisheries the empowerment to define technical measures through an arrêté which consist in a relatively simple legislative act adopted without Parliament or Prime Minister scrutiny but under some mandatory consultation procedures of the official representation of the fishing industry.

Article 4 of the current CFP Basic Regulation27 contains an indication of the types of ‘Community Measures’ that can be taken to implement the CFP, including technical measures. The current legal architecture (including the Basic Regulation) does not delegate powers to the Commission to adopt technical measures in the form of Commission Regulations under the procedure known as ‘comitology’ (now delegated and implementing acts under the TFEU) except the case of emergency situations. Article 7 of the Basic Regulation allows the Commission to adopt emergency measures, at the substantiate request of a Member State or on its own initiative but only if there is ‘evidence of a serious threat to the conservation of living aquatic resources, or to the marine eco-system resulting

from fishing activities and requiring immediate action’. These measures can only be taken for six

months (although the Commission may take a new decision to extend them for no more than six months). In practice this provision has rarely been used. In addition under Article 45 of Regulation (EC) No. 850/98 the Commission may also take similar emergency measures that derogate from the measures contained in this regulation. These measures can be taken "where the conservation of stocks of marine organisms calls for immediate action" and are not time-limited. Article 45 of Regulation (EC) No. 850/98 has been in fact used to adopt Commission regulations imposing additional technical measures under the different management plans (inter alia Regulation (EC) No. 494/2002 for hake recovery, Regulation (EC) No. 2056/2001 supporting cod plan West of Scotland and in the North Sea, Regulation (EC) No. 737/2002 for technical measures in the Celtic Sea). As

27 Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy


stated earlier, Commission regulations can only impose measures in case of serious threats to the conservation of stocks, i.e. curative measures as opposed to preventive measures.

Many of the Council regulations forming part of the current framework for technical measures under the CFP have been subject to amendment, in certain cases on numerous occasions (Council Regulation (EC) No. 850/98 has, for example, been amended more than ten times). As a Council regulation can only be amended by a Council regulation each amendment in turn requires the adoption of a new regulation through the ordinary legislative procedure.

Adopting and amending Council regulations is clearly a time-consuming and burdensome process requiring the full legislative procedure to be followed for each new regulation including requirements for impact assessment.

With the entry into the force of the Treaty of Lisbon, the process has, if anything, become more time consuming and burdensome. This is because with the exception of measures ‘fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities’, which continue to be adopted by the Council acting on the proposal of the Commission, the adoption of regulations necessary for the implementation of the CFP, thus including technical measures regulations, is subject to the ‘ordinary’ legislative procedure, namely co-decision with the European Parliament.

The complexity of this process is illustrated by the recent amendment to Regulation (EC) No. 850/98. The purpose of this regulation28 was essentially to extend the period of application of a number of existing technical measures pending the completion of the reform of the CFP. In outline, the procedure was as follows. Following its adoption by the European Commission on 21 June 2012, the proposal for the new regulation was submitted to the Council and the European Parliament the same day and was also circulated to Member State parliaments. The Council and the European Parliament decided (on 5 and 10 July respectively) to consult the European Economic and Social Committee. The latter committee considered the proposal as a matter of urgency and provided its opinion on 18 September 2012. The proposal had meanwhile been submitted to the Fisheries Committee of the European Parliament on 3 July 2012. A vote by that committee followed a single reading on 9 October 2012 after which the committee report was tabled for plenary on 19 October 2012. After being debated in Parliament on 21 November 2012 the text was referred back to the Fisheries Committee for reconsideration. This was followed by a further debate in Parliament followed by the adoption of the amended text on 6 February 2013 and the formal adoption of the instrument by the Council on 25 February 2013. The procedure culminated with the signature of the final act on 13 March 201329.

Two further points to note about this particular example are firstly that a specific impact assessment was not required (because most of the measures contained in the proposal were existing) and second the parliamentary procedure was in fact rather rapidly completed due to its ‘emergency’ nature and also because the measure was subject only to a single reading (information on the length of the procedure before the adoption of the proposal by the European Commission is not so readily available). This was nevertheless still a significant legislative procedure lasting 9 months in total for the purpose what was essentially a temporary extension of existing technical measures.

28 Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 March 2013 amending Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No 1434/98 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption (OJ L 78, 20.3.2013, p. 1).

29 See: http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?lang=en&reference=2012/0158(COD)#tab-0


A.2 The intervention logic of technical regulations

Ex-post evaluation is founded on the comparison between the needs and objectives underlying adoption of technical measures and the results of the intervention.

An intervention logic is a model that graphically illustrates the components of an evaluation of a programme or a project in order to clarify the causal chain, i.e. how certain inputs and activities are expected to lead to outputs, results and impacts (which are linked to objectives at different levels). In this way, an intervention logic can summarise a potentially complex theory into basic categories.

Developing an intervention logic model for legislation requires a slightly different approach to that typically taken when analysing a programme or project, as the ‘cause-effect’ logic needs to be conceptualised in a slightly different way. In the first instance with legislative measures, there are typically no specific resources (financial, human or other) that are invested, nor are there specific activities that are undertaken to generate outputs. On the other hand, especially in the case of legislation that is not directly applicable (such as EU Directives) there are additional layers of complexity related to its transposition and application, which may differ between jurisdictions.30

In the case of technical measures (TM), the legislation is enshrined in a series of Regulations, meaning that it is directly applicable in all Member States, thus eliminating one possible source of complexity, i.e. different measures being applied in different Member States operating in the same region. Therefore, the intervention logic is able to use the standard approach as shown in Figure 3, although certain concepts need to be interpreted differently (especially at the bottom of the impact chain), as explained below.

Figure 3: The standard approach and impact chain for Intervention Logics. Source: EU Evaluation Guidelines

Generally speaking, the intervention logic that results from the use of these concepts is relatively simple and linear. This reflects the fact that technical measures, although very complex, do follow a reasonably clear and straightforward logic, which is to use a series of rules and restrictions to force fishers to fish more selectively to the benefit of fish stocks, marine eco-systems, and ultimately, contribute to the sustainability of fishing by vessels flying the flag of an EU Member State or third- 30 For more information on the use of intervention logic models for evaluating EU legislation, see: T. Fitzpatrick: Evaluating legislation: An alternative approach for evaluating EU Internal Market and Services law, in: Evaluation, vol. 18, no. 4, Oct. 2012.


country vessels fishing in EU waters. However, there are a series of external factors (such as the effectiveness of the control system, which is a key determinant of compliance with technical measures) that can potentially have a significant impact on the extent to which the results and impacts are achieved, and are thus an important source of complexity and uncertainty. These main external factors are also included in the intervention logic.

• Inputs and outputs: When compared with standard intervention logic models, these levels represent a conceptual difficulty because the EU legislation can be considered as both an input (a resource that the EU puts into the mix) and as an output (an action that requires something to happen). In the diagram, we have attempted to resolve this potential overlap / confusion by placing the actual pieces of legislation under inputs, and the main rules stemming from them under outputs. This allows us to represent both relevant sets of information in a useful and coherent way. It should be noted that the wording in the output boxes (main types of technical measures) is taken from the 2008 Commission IA supporting a proposal for a new technical measures regulation.31 There are other documents32 in which the wording is slightly different, but the 2008 IA summarises the key elements in a concise and clear way.

• Results: This level should depict the immediate reactions to the legislation following its

adoption and entry into force. In the case of the technical measures, the desired result can be summarised very simply: fishers are expected to comply with the rules and restrictions and adapt their activities accordingly.

• Intermediate impacts: This level relates to the specific objectives of the measures. These

objectives are reflected in various documents. The wording in the boxes in the intervention logic diagram is based on the objectives specified therein, with some modifications to distinguish more clearly between more selective fishing (as regards sizes and species), the protection of nursery and spawning areas, and the protection of marine eco-systems in a wider sense.

• Final impacts: The final impact should reflect the global policy objectives. In this case, the

technical measures should contribute to the overall objectives of the CFP. The wording that is used in the intervention logic diagram is taken from the 2004 Communication on the role of technical measures33, which emphasises the three dimensions of sustainable fishing (economic, environmental and social).

• External factors: As noted previously, the inherent logic of the technical measures

themselves is quite linear, but there are a series of contextual elements that can have a significant effect on / represent a risk to the achievement of the objectives. It is therefore important to reflect the most important external factors in the intervention logic, and note the different steps in the causal chain at which they may occur:

31 Impact Assessment regarding the Commission's proposal for a Council Regulation concerning the conservation of fisheries resources through technical measures in the Atlantic and the North Sea, SEC(2008) 1978 32 For example the 2002 Basic Regulation (Council Regulation (EC) No 2371/2002), Article 4(g), or the 2011 Proposal for a new Regulation in the CFP (SEC(2011) 891 final), Article 8. 33 Communication from the Commission to the Council and the European Parliament: Promoting more environmentally-friendly fishing methods: the role of technical conservation measures, COM(2004) 438 final


o Rules of general applicability related (partly) to technical measures: a number of such

pieces of legislation exist. For the sake of clarity, a reference to the 2002 Basic CFP Regulation, reformed CFP and other legislation is included as an external factor that applies at the transition from inputs (technical measures regulations as such) to outputs (applicable rules).

o Control and enforcement system: obviously, compliance with the technical measures will depend partly on the effectiveness of the Control Regulation and related instruments and processes. This extremely important external factor comes into play at the level of achievement of results.

o Scientific advice underlying TM rules: if fishers comply, the technical measures will still only be effective if they are technically appropriate, e.g. if the prescribed minimum mesh sizes are actually adequate to have the desired effect. This depends to a large extent on the accuracy of the scientific evidence that is used for developing the rules and the degree to which managers follow the scientific evidence in setting new rules. In the intervention logic this is reflected at the level between results and intermediate impacts.

o Other CFP measures: The CFP seeks to achieve sustainable fisheries through a series of measures including technical measures, but also catch limits (TACs and quotas) and fishing effort limitations (i.e. restricting the size of the fleet and the amount of time it can spend fishing through dedicated effort regimes). The latter are shown as external factors at the level of final impact in order to clarify that the technical measures can only ever contribute to the achievement of the general CFP objectives, not achieve them on their own.


Figure 4: Intervention logic of technical control measures

EXTERNALFACTORS

likely to have a significant effect on steps in the IL

INPUTS

(pieces of legislation)

TCM for the NE Atlantic and North Sea

OUTPUTS

(main applicable rules)

RESULTS

(reactions to rules)

Intermediate IMPACTS

(specific objectives)

Final IMPACTS

(general objectives)

Council Regulation (EC) 850/98 (as amended)

Exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions

Fishers adapt their fishing activities in line with requirements of technical measures

Reduced catches of undersized (juvenile) individuals

Minimum net mesh sizes

Use of selective fishing gear

Closed areas and seasons

Minimum landing sizes for fish and shellfish

Limits on by- or incidental catches

Reduced catches of unwanted marine organisms

Vulnerable marine ecosystems protected

Nursery and spawning areas protected

Other TCM introduced under management plans or other instruments

Effectiveness of control and enforcement

system (Control Regulation)

Accuracy of scientific advice and evidence underlying TCM rules

Effects of TACs and quotas Fishing effort management

(fleet capacity and effort regimes)

‘Basic Regulation’ and other rules of general

applicability


A.3 The current technical measures framework for the North Sea and North Atlantic

As outlined before, technical measures define where, when and how a fishing enterprise exploits commercial fish resources and interacts with the wider marine ecosystem. According to the current CFP basic Regulation (EC) No. 2371/2002, technical measures include:

• Measures regarding the structure of fishing gears, the number and size of fishing gear onboard, their methods of use and the composition of catches that may be retained onboard while fishing with such gear;

• Zones and/or periods in which fishing activities are prohibited or restricted including for the protection of spawning and nursery areas

• Specific measures to reduce the impact of fishing activities on marine ecosystems and non-target species.

• Minimum size of individuals that may be retained onboard and/or landed

This has been revised in Article 7 of the new Basic Regulation as follows:

"2. Technical measures may include inter alia the following:

(q) characteristics of fishing gears and rules concerning their use;

(r) specifications on the construction of fishing gear, including:

(i) modifications or additional devices to improve selectivity or to minimise the negative impact on the ecosystem;

(ii) modifications or additional devices to reduce the incidental capture of endangered, threatened and protected species, as well as other unwanted catches;

(s) limitations on or prohibitions of the use of certain fishing gears, and on fishing activities, in certain areas or periods;

(t) requirements for fishing vessels to cease operating in a defined area for a defined minimum period in order to protect temporary aggregations of endangered species, spawning fish, fish below minimum conservation reference size, and other vulnerable marine resources;

(u) specific measures to minimise the negative impact of fishing activities on marine biodiversity and marine eco-systems"

The following sections present an overview of the main types of technical measures contained in the EU legislation for the North Atlantic and the North Sea.

A.3.1 Geographical coverage of the technical measures regulation

For the purpose of Regulation (EC) No. 850/98, North Sea and North Atlantic waters have been broken down into 9 regions. The regions includes all areas of the North-East Atlantic (FAO area 27) where EU fishing vessels are active, an area in the Indian Ocean (La Réunion) and since 2013 the Black Sea (the latter was previously considered in the fishing opportunities regulations). The regions can be broadly described as follows (legal definition in Art. 2 of Reg. (EC) No. 850/98).

• Region 1: Waters North of 48°N surrounding region 2 to the West and to the North


• Region 2: the main fishing grounds of EU fishing fleets North of 48°N. Includes in particular ICES sub-areas IV, VI and VII

• Region 3: Waters south of 48°N corresponding to ICES sub-areas VIII and IX

• Region 4: Waters corresponding to ICES sub-area X

• Region 5: Waters of included in CECAF division 34.1.1; 34.1.1.2; 34.1.3 and 34.2.0 (off West Africa, includes EEZ or part thereof of Canarias, Madeira and Azores)

• Region 6: Waters of French Guyana (Atlantic Centre West)

• Region 7: Waters of Martinique and Guadeloupe (Atlantic Centre West)

• Region 8: Waters around La Réunion (Western Indian Ocean)

• Region 9: the Black Sea

The main purpose is to apply a combination of common measures and differentiated measures according to the regional characteristics of the fishing activities.

A.3.2 Measures on the structure of fishing gears

Regulation (EC) No. 850/98 and other relevant regulations concentrate to a large extent on the structure of fishing gears with a large emphasis on active towed bottom gears (trawls, Danish seines and similar nets). The general objective of this type of measure is to avoid catches of unwanted fish, i.e. fish below the commercial size or species for which fishing is prohibited or that are not marketable due to inexistent market demand. Measures on the structure of fishing gears are intended to regulate and promote the use of size and species selective fishing gears.

A.3.2.1 Active gears

In towed nets such as trawls and seines, fish enter the net and then move to back of the net where they enter a netting bag at the rear, i.e. the codend. Depending on the size of meshes in the codend, and how open they are, some smaller fish will then escape through the meshes of the codend, while larger fish are retained within the codend. As a result, the selectivity characteristics of the net are largely determined by how the codend is constructed in terms of mesh size, twine thickness, codend circumference etc. (CEFAS, 2008).

Codend mesh sizes

Mesh size in the codend is the most important factor determining the selectivity pattern of towed gears, but not the only one. Regulation (EC) No. 850/98 determines that certain mesh sizes shall be used under general conditions (e.g. 100 mm in Region 1 & 2, 90 mm in Skagerrak & Kattegat, 70 mm in Region 3). Under the context of recovery plans, minimum mesh sizes may be increased as a derogation from conditions set out by Regulation (EC) No. 850/98, for example extension to 120 mm in the case of the North Sea cod fishery (Regulation (EC) No. 2056/2001).

Mesh sizes permitted determine to a large extent the target species used in the definition of métiers which is now the lowest level of disaggregation of the EU fleet used in the DCF. The métier concept associates vessels characteristics and target fisheries (species, areas, periods). Association between mesh sizes and fishing vessels is also used in the legislation to define segments to which specific regulatory frameworks are imposed in the frame of multiannual plan (the so-called TR1, TR2, BT1 etc. defined in Reg. (EC) No. 1342/2008).


As a general rule, fishing vessels can have onboard more than one mesh size range. Annexes VIII and following of Reg. (EC) No. 850/98 define the permitted combinations of mesh size ranges onboard and associated conditions determining the allowable catch composition. Under certain circumstances and for specific fisheries, a one net rule may be imposed (cod recovery plans, pelagic trawl fisheries).

Permitted mesh sizes have been modified over the past decades. For demersal species, mesh sizes have been generally increased. For example, the minimum mesh size in the Bay of Biscay for Nephrops has been increased from 50 mm (1986) then to 60 mm (1989) and finally to 70 mm (1998); fishing for cod in regions 2 has been increased from 80 mm (1986) to 85 mm (1987), 90 mm (1989) to 100 mm (1998) and to 120 mm recently. There are also anecdotal occurrences of mesh sizes being decreased but only for towed gears targeting pelagic species (e.g. sardine in region 3 with mesh sizes decreased from 20 mm to 16 mm in 1997). Catch composition rules have also evolved in parallel in general to require higher percentages of target species in the catches retained onboard.

There are numerous exceptions whereby mesh sizes are smaller than the general conditions contained in Regulation 850/98. These multiple derogations reflect the huge diversity of fisheries within Western waters. When the vessels target species which cannot be caught with these “standard” meshes because of their small sizes (e.g. nephrops, herring, sand eel, sole), fishers are allowed to use smaller mesh sizes under the condition that they comply in any 24 hour period with a catch composition rule which reflects the specificity and species mix of the fishery. Art. 15 of Reg. (EC) No. 850/98 indicates that catches in excess of the permitted percentages contained (i.e. catch composition) shall be returned to sea before landing, introducing therefore a legal obligation to discard.

Catch composition rules are detailed in appendix 1 of Regulation (EC) No. 850/98. For example, vessels fishing for nephrops in Regions 1 & 2 with 70-79mm mesh size must have at least 35% of target species onboard. Similarly, vessels fishing for some flatfish in Region 3 with 55-59 mm mesh sizes must have at least 70% target species onboard. The catch composition rule is even more restrictive when vessels fishing with smaller meshes are likely to catch species under multiannual management plan as by-catches (e.g. 5% cod maximum permitted for vessels fishing with 70-79 mm mesh sizes in the North Sea according to Regulation (EC) No. 2056/2001, or 20% maximum hake for trawl other than beam trawl according to Regulation (EC) No. 494/2002). The following table gives the mesh size ranges used by fishing vessels to target different groups of species in Region 1 and 2 (North of 48°, except Skagerrak) and in Region 3 (ICES sub-area VIII and part of IXa). The mesh sizes reported in the table are in the general case and do not take into account further restrictions on mesh sizes imposed by multiannual plans or unilaterally by Member States on their vessels.

Table 3: Mesh sizes ranges utilised by vessels using towed gears for targeting different groups of commercial species under a general case. From Reg. (EC) No. 850/98 and industry practices.

Region 1 & 2 Region 3*

Demersal trawling for whitefish 100 mm + 70 mm + Demersal trawling and beam trawling for flatfish

80 - 99 mm 70 mm +

Demersal trawling for Nephrops 70 -79 mm 70 mm +

Demersal trawling for shrimps 16-31 mm 16-31 mm

Pelagic fishing for sprat < 16 mm 16-31 mm Pelagic fishing for smaller small pelagic species (anchovy, sardine, blue whiting)

16 - 31 mm 16-31 mm

Pelagic fishing for larger small pelagic species (mackerel, herring)

32 - 54 mm 32-54 mm

* Except ICES IXa East of 7°23’48”W


Other elements of the gear configuration

Other factors affecting gear configuration can also be important for selectivity. These include mesh sizes in other part of the gear, mesh shape, twine thickness, codend circumference, attachment of the codend and the shape of the codend. Technical measures aim also to regulate those parameters having influence on the performances of towed gears.

Mesh sizes in other part of the gear: In addition to regulating mesh sizes in the codend, there are also some pieces of EU legislation regulating mesh sizes in other parts of the gear. Based on the finding that unwanted species may escape the trawls through panels guiding fish toward the codend (see for example STECF (2008)), use of large meshes in the entire upper half of the anterior part of beam trawls may be compulsory under certain conditions in the context of multiannual plans (see for example Regulation (EC) No. 494/2002).

Codend circumference: if the number of meshes in the circumferences is too large, the netting panels in the codend will remain slack and the meshes will not open as intended. Also, asymmetric codends (number of meshes in the circumference increasing from the front end to the rear end, or vice-versa) will have the effect of closing meshes and reducing effective mesh opening, Art. 6 of Regulation (EC) No. 850/98 prohibits use of towed gears having less than 100 meshes in any circumference for certain categories of trawls, and prohibits also varying number of meshes across the codend length. Similar measures are also introduced under separate legislation when the main technical measures Regulation (EC) No. 850/98 does not specify the parameter for a given gear. This is often the case for species subject to multiannual plans for which additional specific technical measures are needed. For example, Regulation (EC) No. 494/2002 for hake prohibits trawls with more than 120 meshes in the circumference, as does Regulation (EC) No. 2549/2000 for cod in the Irish Sea.

Twine thickness: it is known that use of thick twine or multiple twines may limit the opening of meshes (Herrmann et al., 2013). In general, the results of experiments demonstrate the benefit of using a relatively thin single twine netting to ensure the appropriate size selection of fish species. As a general rule, Art. 8 of Regulation (EC) No. 850/98 prohibits twine netting materials having a twine thickness of more than 8 mm, or multiple twines of a cumulated thickness of more than 12 mm. For demersal trawls in the North Sea and West of Scotland, double twine thickness is limited to 5 mm each (10 mm in total). For demersal trawls in the Irish Sea, single twine thickness shall not exceed 6 mm or 2 x 4 mm for double twine. So far, twine stiffness (flexural stiffness) has not been regulated although it can have a considerable influence on mesh opening.

Shape of meshes: diamond meshes are defined in Reg. (EC) No. 850/98. This has been further refined in the recovery plans for cod and hake whereby a diamond mesh is defined as being composed of four bars of the same length. The reason is that asymmetric meshes (also known as K-mesh), whereby a mesh has two short bard and tow long bars, may be less selective than a standard diamond meshes.

Length of codends: in some case, excessive codend length may undermine the effectiveness of other selectivity devices. Under the cod multiannual plan for the North Sea and West of Scotland (Reg. (EC) No. 2056/2001), codends must not exceed 36 m in length.

Attachments to nets: certain devices which may be attached to trawls are liable to obstruct the mesh in any part of a trawl or to diminish the dimensions of the mesh (see for example (Herrmann et al., 2006). Regulation (EEC) No 3440/84 defines for each type of attachment (bottom-side and top-side chaffers, strengthening bags, lifting straps, round straps, etc.) what is permitted or not with a great amount of technical details.


Selectivity devices

Square mesh panels have been used in many fisheries around Europe since the late 1990’s. The panels have been shown to reduce unwanted by-catch of juvenile fish, particularly haddock and whiting in fisheries targeting whitefish (Graham and Kynoch, 2001) and Nephrops fisheries (Armstrong et al., 1998). Square mesh panels take advantage of the swimming behaviour of certain fish species staying high in the trawl. They provide a wider mesh opening allowing them to escape. Regulation (EC) No. 850/98 provides for incorporation of square mesh panels in trawls as an option or as an obligation in some specific cases (towed gears having 70-79 mm mesh sizes as from 2001). Notwithstanding these general provisions, compulsory use of square mesh panels of various mesh sizes (80 mm, 90 mm, 100 mm) is generalised in the context multiannual management plans, often as a condition to be able to use towed gears with codends constructed with mesh sizes of less than the standard larger mesh size (cod plans, hake plan). Regulations introducing square mesh panels have not only to specify its dimensions (length, width), but also where it should be attached as the position of the panel in the trawl has an impact on its effectiveness (e.g. see O’Neill et al. (2006)).

Sorting grids have also been shown to reduce catches of unwanted fish species when targeting small species (e.g. crustaceans) with small meshed towed gears. Regulation (EC) No. 850/98 as amended in 2013 allows for the utilisation of sorting grids for Nephrops vessels in area VIa. This is the only example in the EU legislation for the North Atlantic and North Sea where sorting grids are obligatory although under national legislation they may also required in certain fisheries (e.g. Danish Norway Pout fishery).

A.3.2.2 Passive gears

By contrast, the structure of passive gears is much less regulated than towed gears. This can be easily understood as passive gears are much more simple gears in conception than towed gears and regarded as being generally more selective than trawls.

Concerning nets (trammel nets, gillnets) Regulation (EC) No. 850/98 regulates permitted mesh sizes of nets according to the species targeted using a similar approach to that for towed gears. In Region 1 & 2, nets of mesh sizes greater than 220 mm can be used to catch any marine organism. Vessels targeting certain species can use smaller meshes under the condition that they retain onboard at least 70% of target species (e.g. 100-119 mm meshes for sole, 50-70 mm for herring). In region 3, mesh sizes of 100 mm can be used to catch any species. Use of smaller meshes is allowed to target specific species (80-90 mm for sole, 50-59 mm for mackerel). Under the frame of recovery plans, these minimum mesh sizes rules can be derogated to impose larger mesh sizes, irrespective of the species targeted, to avoid catches of species subject to the plans (e.g. Regulation (EC) No. 494/2002 for hake prohibiting fixed nets of less than 100 mm or 120 mm in certain areas).

There are very few other technical measures on the other dimensions of static nets in the EU legislation. There is a general ban on the use of driftnets for targeting highly migratory species and the permitted length of driftnets used for other species (e.g. small pelagics such as herring or mackerel) is limited to 2.5 km. There is also a general prohibition of using static nets in Western waters at depths greater than 200m with derogations for certain gears (defined in great detail) for fishing in waters between 200 - 600 m. Under this particular case, Regulation (EC) No. 850/98 (new article 34b introduced in 2013) regulates the maximum permitted length of both gill nets and trammel nets, their hanging ratio, their equipment with floats, their soak time and their maximum height.

In all the EU legislation for the North Atlantic and North Sea, there are no prescriptions on the utilisation (number, dimensions, technical specificities) of pots, traps, hooks, or other passive gears that is not a net, although such measures are in place in the Mediterranean and Baltic.


A.3.3 Time / area closures

Spatial and temporal restrictions on fishing activity are commonly used in EU legislation. The purpose of such measures can be divided into two broad categories: (i) the protection of particular species at a vulnerable stage in their life cycle either directly or indirectly, or (ii) protection of a particular marine habitat or seabed.

In the case of closures intended to protect individual species, the area may correspond to a spawning or nursery area in which juveniles and/or adults aggregate and are therefore more vulnerable to fishing. In such cases the closure will typically apply to vessels using gears for which would normally be used to target the species concerned. Other vessels may still be allowed in the area by way of derogation either because such gears do not contribute to fishing mortality on the species being protected or in some cases because a full closure would lead to politically unacceptable loss of earnings. Alternatively, closures can apply to areas where the species to be protected forms a by-catch in a fishery for a separate species. In these circumstances, the closure will affect the fishery for the second (target) species in order to reduce the by-catch of the protected species.

In cases where the intention of the closure is to protect a sensitive habitat such as a coral reef or seagrass the closure is usually permanent and applying to all gears impacting on the seabed feature. Derogations to allow the continued use of gears with no impact (e.g. pelagic trawls) or limited impacts (e.g. longlines) are often included in such measures.

Regulation (EC) No. 850/98 and other related regulations consider several closures for different purposes. Whilst the legislation is not often explicit on the objectives of the time / area closures adopted, they could be inferred from scientific evaluations, in particular SGMO (2007). Main current closures, their focus, their perceived objectives and associated derogations are listed in Appendix 2 to this report.

Spatial/temporal closures implemented to protect spawning aggregations include inter alia:

• Some of the closure implemented to protect herring stocks (Art. 20 of Reg. (EC) No. 850/98)

• Closures in the Irish Sea, Celtic Sea or West of Scotland to protect cod and associated whitefish species like haddock and whiting (Art. 29 d,e and 34a of Reg. (EC) No. 850/98)

• Closures in some areas of ICES sub-area VI to protect spawning aggregation of blue ling (Art. 29f of Reg. (EC) No. 850/98)

Closures implemented to protect nursery grounds include inter alia:

• Some of the closure implemented to protect herring stocks (Art. 20 of Reg. (EC) No. 850/98 - Clyde / Irish Sea closures)

• Mackerel box South-West of the British Isles where juveniles may aggregate (Art. 22 of Reg. (EC) No. 850/98)

• Areas where juvenile hakes are abundant South of Ireland and in the Bay of Biscay (Art. 5 of Reg. (EC) No. 494/2002, Reg. (EC) No. 1162/2001)

• Area in the North Sea to protect juvenile plaices (the Plaice box defined through Art. 29 of Reg. (EC) No. 850/98)

• Rockhall closure to protect juvenile haddocks (Art. 29 c of Reg. (EC) No. 850/98)


Some closures have also been implemented to regulate some type of fishing that may have an indirect impact on other key species. This is notably the case of the sprat closure (Art. 21 of Reg. (EC) No. 850/98) on the ground that fishing for sprat with towed gears of small mesh sizes (16-31 mm) may catch juvenile herrings, or the Norway pout closure (Art. 27 of Reg. (EC) No. 850/98) implemented to avoid caching of juvenile roundfish with similar small-meshed industrial trawls.

Some closures implemented through the technical measures regulations have an objective to address the impact of fishing on the broader environment. This is notably the case of closures of areas around seamounts to protect vulnerable cold-water coral reefs both inside and outside EU waters (Art. 30.5 and 34 d,e,f of Reg. (EC) No. 850/98). In these cases, fishing is prohibited with all fishing gears likely to interact with the bottom. There is also in the legislation a time / area closure implemented in East Scotland to ensure the breeding success of seabirds (kittiwake) through restrictions on fishing on one of their prey species (sandeels) (Art. 29a of Reg. (EC) No. 850/98).

Some of the time area closures detailed in Appendix 2 and discussed above have been set up more than 30 years ago (herring, mackerel, Norway pout) and have remained in the legislation with some evolutions on the extent of the closures and the derogation granted to specific fleets. The Plaice box (1989) is another example of a closure that has remained in force for a long period with only minor adjustments and assessment of its effectiveness. Use of closures for demersal species (cod, haddock) and hake are relatively more recent (early 2000). Closures under the CFP of areas for preservation of vulnerable areas date back to 2006.

Table 4: Historical development of time area closures in the EU regulatory framework. Source: Legislation and SGMO (2007)

Type of closure Date initiated(in EU Law)

Background to the closure

Herring closures 1970-1980 Near collapse of herring stocks in the 70’s

Norway pout closures 1977-1986 Concerns that development of industrial fishing led to increased by-catches of juvenile haddock and herring

Mackerel closures 1980-1985 Stock severely overfished Sandeel closure 2000 Poor state of sandeel resource and impact on seabirds

Plaice box 1989 Concerns about the high level of discarding of juvenile plaices

Hake closures Bay of Biscay / S. Ireland

2002 Poor state of the Northern hake stock triggering recovery plan

Haddock (Rockall) closure 2002 After recommendation from NEAFC on the basis of poor state of stock

Windsock cod closure 2000-2003 Poor state of cod stock Irish Sea cod closure 2000 Poor state of cod stock Celtic Sea cod closure 2005 Poor state of cod stock Blue ling closure 2009 Concerns about the status of stocks Closures of areas encircling seamounts

2004 Protection of deep-sea vulnerable ecosystems

A.3.4 Real-time closures

More recently, the EU has applied an innovative approach to closures by introducing the possibility to close an area to fishing activities as soon as high abundances of sensible species are detected and caught by fishing vessels, i.e. real-time closures (RTCs).

Real time closures (RTCs) are defined areas of the sea which are closed to fishing for a limited period, triggered by information gained by managers in "real time". Depending on the specific objectives to be achieved they can be targeted for example, to protect areas of high abundance of spawners, areas where juveniles comprise a higher than average proportion of the catch, areas where catch composition is likely to result in high levels of discards or as means of reducing fishing mortality for a particular species (e.g. cod).


For the establishment of an individual RTC managers generally can use information of their officials, control observers, research platforms or from operators themselves. When a pre-determined trigger catch level has been reached an RTC can be established.

Move-on obligations in case of exceeding trigger catch levels can be used additionally to “fine tune” quota uptake in multi-species fisheries and reduce discards by encouraging effort to move away from areas where species which have experienced high uptake are known to be abundant, to areas where the catch composition is likely to be more appropriate.

The framework for RTCs at EU level has been established in the control regulation (Regulation (EC) No. 1224/200934) and currently a move-on obligation of five miles (2 miles for vessels >12m) exists when catches exceed a trigger catch level in two consecutive hauls. However, for their full application trigger catch levels still need to be defined at EU level.

RTCs have been implemented to some extent in a number of countries and, by international agreement, on the high seas. However, so far in EU waters, RTCs have only been applied in Regulation (EC) No. 724/2010 for the protection of juvenile cod, haddock and whiting in the North Sea, Skagerrak and Kattegat, following an arrangement with Norway. In this case closures are instigated by a mixture of catch sampling, landings per unit effort data and self-reporting by fishermen. The number of these closures has steadily increased in recent years and there seems to be a good level of compliance from all vessels. In addition a number of Member States have piloted national RTC programmes, mostly notably in the UK. The principal aim of these European schemes to date has been the reduction of cod mortality as part of the long-term management plan for cod.

RTCs tend to enjoy greater confidence from the fishing industry than many other conservation measures as they are seen to be more responsive to conditions “on the ground”. However their effectiveness in practice is difficult to measure and their evaluation is inherently difficult as they displace fishing effort from an area, rather than reduce total effort per se. They also cannot be used in the context of a landing obligation for avoiding catches of over quota catches, only concentrations of undersize fish.

The concept of real time closures in the North Sea and the Skagerrak that was first introduced in the legislation in 2009 through the TAC & quota regulation to protect juvenile whitefish has been transposed into EU law through the Control Regulation (EC) No. 1224/200935 with detailed implementing rules in Regulation (EU) No 724/201036 as amended. First experienced on a voluntary basis by Scotland, this dynamic tool provides for the possibility to close in near real-time a number of discrete areas over a defined area and during a defined period as soon as concentrations of juveniles of whitefish species are identified in the catches. In 2008 and 2009, about 160 real-time closures were implemented in the North Sea (Bailey et al., 2010). Note that the implementation of real time closures does not require adoption of a legislative act by the EU. Reg. (EU) No 724/2010 provides for an architecture whereby Member States and Flag States of third countries (e.g. Norway) concerned are responsible for the implementation and enforcement of the scheme. The Commission needs to be 34 Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 35 Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 36 Commission Regulation (EU) No 724/2010 of 12 August 2010 laying down detailed rules for the implementation of real-time closures of certain fisheries in the North Sea and Skagerrak


informed, but does not have to validate RTCs before they are implemented. With this simplified procedure, real time closures can be virtually set up overnight.

A.3.5 Protected marine species

Protected species is a rather imprecise grouping that includes at least the following categories of species:

• Marine species listed under Appendix 4 of Habitat Directive. This list includes inter alia all cetaceans, certain marine turtles and some fish species like sturgeons;

• Seabirds species as per the Bird Directive and other international commitments (CBD, Bonn Convention) or soft law (IPOA Seabirds by FAO);

• Elasmobranches (sharks and rays) in particular following the IPOA-sharks adopted by FAO.

Technical measures have the potential to reduce by-catches of protected species through adaptation of fishing gears or spatial/temporal measures to avoid capture. As far as the current technical measures are concerned, there are several examples:

− The use of acoustic deterrent devices (ADD) to mitigate against cetacean bycatch in static net fisheries. These measures are contained in Reg. (EC) No. 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries. The Regulation also imposes an observer coverage of gillnets and entangling nets in areas not subject to ADD coverage, and on pelagic trawlers not obliged currently to have their trawls equipped with ADD.

− The ban on use of driftnets to target highly migratory species or large pelagic species (tunas and related species) implemented through Reg. (EC) No. 894/97 is also a measure clearly aimed at protecting by-catches of cetaceans, seabirds and marine turtles. In that case, the measure prohibits the use of a certain type of gear in certain conditions potentially harmful for protected species.

− Various measures adopted under the frame of the International Convention for the Conservation of Atlantic Tunas (ICCAT) to minimise interactions between fishing vessels targeting tunas and seabirds, sharks and marine turtles. Most of the mitigation measures are transposed into EU law through Reg. (EC) No. 520/2007.

A.3.6 Minimum landing sizes

In addition to rules on gear configuration and spatial/temporal closures, minimum landing sizes form another pillar of the technical measures toolbox.

Minimum landing size (MLS) that apply to a given species in a given area means that it is illegal to retain on board, land or sell individuals of that species that are smaller than the specified MLS. It does not mean that it is illegal to catch such individuals, but instead that any undersized individuals have to be returned to the sea. This is another disposition of the EU legislation forcing fishermen to discard. The role of the MLS in this context is to ensure that undersized fish cannot be legally sold, and thus to act as an incentive for the gear to be rigged selectively such that undersized fish are not caught in the first place.

Annex XII to Reg. (EC) No. 850/98 defines a set of minimum sizes for ≈ 35 species of commercial importance, including minimum sizes for different presentations that may be found onboard (i.e.


Nephrops whole or tailed). Annex XIII to the same regulation defines how the sizes of the marine organisms listed should be measured. Art. 19 of Reg. (EC) No. 850/98 provides a derogation from the genral rules by allowing 10% by weight of undersized small pelagic species (sardine, anchovy, herring, horse mackerel, mackerel). For other species, there is no such tolerance.

MLS are complemented, and supplemented for some fish species, by Council Regulation (EC) No. 2406/96 laying down common marketing standards for certain fishery products which define size categories to be adhered to when placing products on the markets. Notable examples where marketing standards supplement technical measures regulations include anglerfish or Crangon shrimps (no MLS). Species not fitting with the lowest size standard defined by this regulation cannot be sold, and then preferably discarded before landing. The marketing standards apply without prejudice to MLS established under Reg. (EC) No. 850/98.

Minimum landing sizes have remained fairly stable since the adoption of Reg. (EC) No. 850/98. The main exception is the increase of the MLS of plaice from 24 cm to 27 cm in 2001. As an illustration, the following table details EU MLS for some key selected species. Member States can adopt higher MLS applying to their own vessels. For example, France imposes to its vessels a minimum landing size of 90 mm (total length) instead of 70 mm in ICES sub-area VIII for Nephrops.


Table 5: Examples of Minimum Landing Sizes imposed by the EU legislation for some selected species. Source: Reg. (EC) No. 850/98

Species Region 1 to 5 Skagerrak / Kattegat

Cod 35 cm 30 cm

Haddock 30 cm 27 cm

Whiting 27 cm 23 cm

Sole 24 cm 24 cm

Plaice 27 cm 27 cm

Nephrops 85 mm (TL*) 25 mm (CL*) (except region 3 & ICES Via and VIIa)

130 mm (TL) 40 mm (CL) Nephrops

70 mm (TL*) 20 mm (CL*) (in region 3 & ICES Via and VIIa)

Nephrops tails 46 cm or 36 cm (region 3)

Mackerel 20 cm (30 cm North Sea) 20 cm - 30 cm

Herring 20 cm 18 cm

Sardine 11 cm

* TL: total length ; CL: carapace length

A.4 Performances of technical measures

A.4.1 Performances of prescriptions on fishing gears

In an ideal world, technical specifications on gears should ensure that fishing operations result in catches with a large proportion of target species corresponding with the desired size range (size selectivity) whilst avoiding catches of undesired species (species selectivity). The minimal value of the size range (i.e the MLS) from a scientific perspective should correspond with the length at first maturity since it is largely assumed that fish should be allowed to spawn at least once before they are caught. The expected benefits are optimal yields (i.e. avoiding growth overfishing) and maximum opportunity for the stock to produce replacement spawners (i.e. avoiding recruitment overfishing (Myers and Mertz, 1998).

In the legislation, this ideal situation is partially recognised by minimum landing sizes that are as close as possible to sizes at first maturity for some species, gear-based measures that result in the catching of as many fish as possible above this minimum landing sizes, and catch composition rules that prevent the catching of undesired species. However, in all cases there is a trade-off between conservation and economic viability and the measures are at best a compromise between the two.

Selectivity of fishing gears

The selectivity patterns of towed gears for a single species can be illustrates by a logistic curve as shown in the figure below. The average retention length (L50) is the length at which 50% of the fish entering the gear will escape through the meshes. The range between the L25: (length at which 25% of the fish will not escape) and L75: (length at which 75% of the fish will not escape) determine the selection range SR (L75-L25). As can be inferred from the figure below, selectivity of towed gears is not knife-edged. A proportion of fish smaller than L50 will be retained. This proportion will depend (i) on the selection range of the net (a narrower selection range usually reflects a more selective gears) and (ii) on the abundance of such small fish on the gear path. Selectivity for towed gears is principally defined by the mesh size but other factors such as twine thickness and net construction are also important parameters.


Figure 5: Trawl length selectivity for a given species. Source: CEFAS (2008)

For fixed gears, selectivity patterns are different. Contrary to towed gears, selection curves of fixed gears are dome shaped (see below). Small fish will easily escape through the meshes until they are of sufficient sizes to be entangled but for larger fish, efficiency tends to decrease as these fish tend to fall out of the nets being too large to be meshed or entangled. As for trawls, the selectivity patterns of fixed gears can be also a function of other parameters including the hanging ratio of the net panels or the material used for its construction.

Figure 6: Typical selectivity pattern for gillnets. Source: CEFAS (2008)

Review of existing data on the selectivity properties of a selection of gears for the main species exploited For a selection of species, key stocks in the North Sea and North East Atlantic were identified on the basis of the relative magnitude of EU TACs. For each stock, key targeted fisheries were identified using available information, primarily ICES Working Group reports. Information on gear retention patterns for the different fisheries were then compared to length at first maturity to explore the


selectivity of the gear, i.e. Does the gear result in catches of juveniles? Does the gear retention pattern compare with the minimum landing size?

The retention patterns of gears can be influenced by a number of factors. Some are directly related to gear configuration, including inter alia: the size and orientation of meshes; selectivity devices – e.g. sorting grids, escape panels; cod-end circumference (i.e. the number of meshes around); the length of the cod-end, twine characteristics (number, thickness, bending stiffness) etc. Other factors are also important in determining selectivity, including inter alia: the catch weight in the cod-end; the morphology and behaviour of the fish etc. Wherever possible, the parameters in the following tables have been chosen to be as representative as possible of the selectivity of commercial gears used in the fisheries concerned. This being said, selectivity parameters reported in the tables should not be considered as representative of selectivity parameters of commercial gears, but only as proxies. Selectivity data is nearly always obtained under experimental conditions that may not necessarily reflect commercial fishing operations.

Research has also indicated that, for heavily exploited stocks at least, observed changes in length at maturation can be fishery-induced due to genetic selection for earlier maturing genotypes leading to reduction in length at 50 % maturity (LM50), e.g. North Sea cod (Wright et al., 2011). Consequently the length at maturity of stocks can change, depending on how heavily the stock has been exploited. For example the selectivity of a gear catching large numbers of small individuals could appear to be more selective for a given fishery if the stock has been heavily exploited, due to the reduction in LM50. Therefore it can be important to take consideration of stock status when comparing retention patterns of gears against maturity-at-length.

Mixed demersal fisheries for whitefish species (cod, haddock and whiting) and flatfish fisheries

The following table summarises the main selectivity parameters found in the published literature for certain types of mesh sizes: 100 mm and 120 mm used to target demersal species in the North Sea and Northeast Atlantic and 80 mm cod-ends used in beam trawl fisheries primarily to catch flatfish with a by-catch of other demersal species.

It is clear that the situation is different for the three species.

For cod using a 120mm codend, a 50% retention length of 44.5 cm was reported from one experiment (Graham et al., 2004). This corresponds to some extent with the estimate of average size at first maturity for the northwest subpopulation of North Sea cod of 45 cm but is lower than the sizes at first maturity for the northeast and southern subpopulations (65 and 62 cm respectively – Wright et al. (2011). Estimates from other selectivity experiments report a much lower 50% retention length with 120 mm mesh size which are well below average maturity size of cod, for example the estimate of 35 cm achieved with a different twine thickness (Madsen and Holst (2002).

For haddock using a 120 mm codend, experiments show 50% retention lengths of around 35 cm (Graham et al., 2004) which are above the average length at first maturity of 27-33 cm (Froese and Pauly, 2012).

For whiting experiments show that the L50 of a 120mm codend is well in excess of the length at first maturity i.e. a L50 of 41 cm (Arkley, 1993) vs a LM50 of 27 cm (Rochet, 2000).

This simple analysis shows that EU minimum landing sizes for cod (35 cm except in Skagerrak / Kattegat) depending on data used, are out of line with the size at first maturity. Most of the studies considered show the average retention length for cod with 120mm mesh size to be around 35 cm in reality, meaning that such a codend has the potential to catch significant quantities of cod below the EU MLS. For haddock and whiting with MLS of 30cm and 27cm respectively it would appear the


120mm codend is more in line with the size at first maturity and few (for haddock) if any (for whiting) juveniles will be retained using this codend mesh size.

Demersal trawlers in the Celtic Sea (ICES subareas VII g-k) targeting species such as cod, haddock and whiting use predominantly 100 mm mesh size. Available selectivity data indicates that the average 50% retention length of 100 mm trawls is below the EU MLS for cod and haddock, and therefore below length at first maturity. This mesh size range therefore has the ability to catch significant portions of fish below the EU MLS. For whiting, the mesh size is better aligned and catches of juveniles will be much lower anyway than for the other species. No selectivity information for Northern hake was available. Previous studies have used available selectivity estimates for otter trawlers targeting Chilean hake (Merluccius gayi gayi) as a proxy for estimates for the Northern hake fishery, e.g. Garcia et al. (2011). These estimates for Chilean hake suggest that the L50 for a 100mm codend otter trawl is slightly below LM50 for the stock, with both L50 and LM50 substantially higher than the EU MLS. Available estimates of L50 for a 100 mm codend otter trawl from the Southern hake stock suggest that the L50 is higher (57.1 cm), far higher than LM50, but with a wider selection range (Meixide, 2001).

Demersal species such as cod, haddock and whiting are also caught incidentally by beam trawls of 80 mm codend mesh sizes used to target flatfish, primarily sole and plaice. The limited selectivity data available shows that the 50% retention length for sole with this mesh size corresponds quite closely to the length at first maturity but less so for plaice and for cod, whiting and haddock.

The main fleet targeting sole in the North Sea is the beam trawl fleet operating with nets of 80 mm mesh size. As shown in the following table, retention patterns for sole and plaice with the same gear are fairly different. An 80 mm mesh size beam trawl has an average retention length of approx. 24 cm for sole but approx. 18 cm for plaice. Compared to EU MLS, the average retention length corresponds well for sole (approx. 24 cm L50 vs 24 cm) but is well below the EU MLS for plaice (approx. 18 cm vs 27 cm). Therefore, an 80 mm mesh size beam trawl is likely to retain substantial quantities of juvenile plaices if they are abundant, but also some quantities of undersized sole although to a lesser extent. As can be seen from discussion above, fishing for flatfish with an 80 mm mesh size is unselective for whitefish.

Other selectivity parameters for certain gears for plaice indicate that an acceptable selection pattern for plaice can be obtained with mesh sizes > 110 mm. However, a substantial portion of sole of sizes greater than the EU MLS will escape through this mesh size ranges. The mismatch between EU MLS for plaice and authorised mesh size range is one of the main conservation issues concerning the plaice stocks.

Selectivity of fixed gears targeting cod and hake

Selectivity data for fixed gears (gillnets) targeting cod and hake are also reported in the tables. The modal retention lengths for the mesh sizes used for cod and hake are well above the EU MLS for these species (MLS of 35 cm and 27 cm respectively). These modal retention lengths correspond quite closely to, or exceed, average lengths at first maturity of 45 to 65 cm for North Sea cod and 43 cm for Northern hake. Catches of cod or hake below EU MLS with these types of gears are consequently low, reflecting the selective nature of these gears. Selectivity patterns for hake from the Southern stocks caught with 70 mm trawl indicate a rather small retention length of 17 cm, well below the EU MLS (27 cm). Data provided for whitefish suggests also that 70 mm mesh size retains cod, haddock and whiting well below the EU MLS. The progressive generalisation of square mesh panels in Nephrops trawls has to decreased catches of such species taken as by-catches but vary depending on the mesh size and positioning of such panels.


Table 6: Summary table of retention patterns for certain mesh sizes of the major trawl fisheries targeting whitefish in the North Sea and North East Atlantic with indications of LM50 and EU-MLS in region 1 to 5 except Skagerrak / Kattegat.

Species Type of gear L50 (cm) SR (cm) LM50 (cm) EU MLS (CM) Source

Cod Otter trawl 120 mm diamond mesh codend 44.5 13.4 45 to 65 35 Graham et al. (2004)

Cod Otter trawl 120 mm (thicker twine) 35 45 to 65 35 Madsen and Holst (2002)

Haddock Otter trawl 120 mm 34.7 4.75 27 to 33 30 Graham et al. (2004)

Whiting Otter trawl 120 mm 41.4 9.6 21 27 Arkley (1993)

Cod Otter trawl 100 mm 33 ≈ 6 53 35 Polet and Depestele (2010)

Haddock Otter trawl 100 mm 29 5.2 30 30 O’Neill and Kynoch (1996)

Whiting Otter trawl 100 mm 25-29 3.2-3.7 21 27 Graham et al. (2003)

N. hake Otter trawl 100 mm 39.4 6.4 42.9 27 Gálvez and Rebolledo (2005)

Cod Otter trawl 80 mm 22 ≈ 4 45-65 35 Polet and Depestele (2010)

Haddock Otter trawl 80 mm 19 ≈ 4 27 - 33 30 Polet and Depestele (2010)

Whiting Otter trawl 80 mm 23 ≈ 5 21 27 Polet and Depestele (2010)

S. hake 70 mm otter trawl 17 3 42.9 27 Campos and Fonseca (2003)

Table 7: Summary table of retention patterns for certain mesh sizes of the major trawl fisheries targeting flatfish in the North Sea and North East Atlantic with indications of LM50 and EU-MLS in region 1 to 5 except Skagerrak / Kattegat.


Sole 80 mm Beam trawl 21.3 5.9 25 24 Depestele et al. (2008)

Sole 80 mm Beam trawl 24-27 3-5 25 24 Van Beek et al. (1981)

Sole 90 mm Otter trawl 24 ≈ 7.5 25 24 Polet and Depestele (2010)

Plaice 80 mm Beam trawl 17.6 31 27 Depestele et al. (2008)

Plaice 80 mm Beam trawl 19 3.2 31 27 Van Beek et al. (1981)




Table 8: Summary table of retention patterns for certain fixed gears targeting cod and hake in the North Sea and North East Atlantic with indications of LM50 and EU-MLS in region 1 to 5 except Skagerrak / Kattegat.

Species Type of gear Modal length (cm)

Spread (cm) LM50 (cm) EU MLS (CM) Source

Cod Gillnet 186 mm 94.7 13.7 45-65 35 Madsen et al. (1999)

Cod Gillnet 140 mm 64 45-65 35 Huse et al. (2000)

Cod Gillnet 110 mm 50 45-65 35 Huse et al. (2000)

N. Hake Gillnet 120 mm ≈ 80 42.9 27 Revill et al. (2005)

S. Hake Gillnet 90 mm 51.1 3.1 42.5 27

Santos et al. (2003) S. Hake Gillnet 80 mm 46.7 2.8 42.5 27

S. Hake Gillnet 70 mm 40.4 2.4 42.5 27


Mixed demersal nephrops fishery

Nephrops are targeted by towed gears (mostly otter trawls) utilising a range of mesh sizes from 70-89mm mm mesh size in regions 1 to 3. These fisheries are essentially mixed fisheries with catches of other demersal species including monkfish, hake, haddock, cod, whiting, megrim and plaice.

It is important to note that the factors impacting Nephrops selectivity are not as well understood as those impacting finfish fisheries, and often selection of Nephrops is not well described by the logistic form of selectivity curve (ICES, 2007). Furthermore, research and developments in Nephrops gear selectivity have generally been focused on whitefish bycatch. Nevertheless, in the Bay of Biscay, the estimates of average retention length of 70 mm trawls for Nephrops range from 2.6 to 3.8 cm CL, which is above the EU MLS of 2.0 cm CL. In the North Sea, experiments have found a greater average retention length of 3.7 mm CL significantly above the EU MLS for this region (2.5 cm CL). The rather large selection range compared to average retention length indicates that the selectivity curve is not very steep. As a result, 70 mm mesh size are likely to retain significant proportions of Nephrops below EU MLS.


Table 9: Summary table of retention patterns for certain mesh sizes of the major trawl fisheries targeting Nephrops in the North Sea and North East Atlantic with indications of LM50 and EU-MLS in relevant regions.


Nephrops 70 mm otter trawl (Area VIII) 2.9; 2.6 – 3.8 ≈ 4; 0.9 – 1.6 2.3 - 2.4 2.0 IFREMER (pers. com.), ICES (2007)

Nephrops 70 mm otter trawl (Area IV) 3.7; 2.6 – 3.8 1.6; 0.9 – 1.6 2.5 - 2.7 2.5 Madsen et al. (1999); ICES (2007)

Nephrops Single & twin rig 80 mm (area IV) 2.6 - 3.0 1.9 – 2.5 2.5 - 2.7 2.5 ICES (2007)


Small pelagics

The summary of retention patterns for gears targeting Atlantic herring in the North Sea and North East Atlantic is presented below from Suuronen and Millar (1992) from experiments in the Baltic.

• L50: 15.6 cm • Selection range: 3.5 cm • LM50: 22-25 cm

Atlantic herring in the North Sea is targeted by pelagic trawlers and purse seiners with mesh sizes larger than 36 mm for human consumption. It is also caught in far smaller quantities as by-catch in the small mesh (< 36 mm) industrial fishery. The L50 for the trawlers operating with the minimum mesh size of 36 mm codend is substantially below LM50 for the North Sea Autumn spawners stock. Assuming a constant selection factor, a mesh size of 58 mm would be required for L50 to be equal to LM50. Trawlers also target the West of Scotland (VIa) and Celtic Sea (VIIghj) herring stocks, with a minimum mesh size of 36 mm. Estimates of LM50 for these stocks were not found, but it is unlikely that LM50 for the stock would be less than L50, given the LM50 estimates for similar stocks available from Fishbase.

However, other research has shown that pelagic trawls do not tend to be size selective, e.g. the majority of herring entering pelagic trawls in the Baltic Sea are retained (Suuronen et al., 1997).

Selectivity devices and impacts on selection and catch rates

Research data based on experimental work onboard fishing vessels or on simulations using appropriate models (FEMNET / PRESEMO) indicate that the selectivity properties of gears can be improved by the introduction of selectivity devices in the net (square mesh panels, sorting grids, separator panels) or by modifications of its structure ((larger mesh in the wings, twine characteristics, attachments). Changes materialise by variations of the 50% retention lengths and selection ranges with promising results obtained for some particular gear configurations (see for example Madsen et al. (1999); Graham et al. (2004) ; O’Neill et al. (2008) or Herrmann et al. (2013) among many other related scientific studies). However, few of these studies try to anticipate the variations in total catches likely to be observed by fishermen as a consequence of gear modifications. When they do (Madsen and Valentinsson, 2010), it is often to detect that increases in 50% retention lengths of some target species (e.g. whitefish) are accompanied by losses of other commercial species (e.g. Nephrops, flatfish), equally important from an industry perspective.

A.4.2 Performances of Minimum landing sizes

A comparison between length at which 50% of the fish are mature and the minimum landing sizes prescribed by Reg. (EC) No. 850/98 shows that for some important commercial species, the MLS is below the size at first maturity (Table 10). This category includes demersal species (cod, hake, saithe), small pelagics (herring, mackerel) and flatfish (megrim, plaice). For three species, the MLS corresponds to the size at which 50% of individuals are mature (haddock, sole, Nephrops). For one commercial species (whiting), the MLS is greater than the 50% maturity stage.


Table 10: Comparison between EU minimum landing sizes and length at which 50% of individuals are mature for a selection of species

MLS < 50% maturity size MLS within 10% of 50% maturity size

MLS > 50% maturity size

Cod Plaice Hake Herring Saithe Megrim

Haddock Sole Nephrops

Whiting

There is not a good match between MLS and maturity indicators. For some important commercial species, the legislation sets the MLS below the size at first maturity authorising thereby exploitation of juvenile fish.

This supports the idea that MLS are a compromise between the selectivity of the most common gears used and market forces. As it stands now, it would be ineffective to increase the MLS to try to match maturity size to protect juveniles of target species without adjusting the selectivity patterns of the fishing gears accordingly. If not, increasing MLS would increase the amount of catches required to be discarded. For depleted commercial stocks, discarding would be significant as the proportion of old and large fish has diminished with an increased dependence on newly recruited smaller fish. For example, the cod population of the Celtic Sea, a species that can live 20 years and reach an asymptotic length of 126 cm (Froese and Pauly, 2012) is presently dominated by fish younger than 3 years old, while specimen older than 5 constitute only 1.4% of the landings and has remained consistently below 2% since 1981. By comparison, a yield per recruit model predicts that older individuals (6+) would compose 16% of the landings at Fmax. Similar results were obtained for the Celtic Sea plaice and for sole, haddock and hake (Guénette and Gascuel, 2012).

The case of whiting is interesting. It is one of the few species for which MLS is greater than the length at first maturity (27 cm vs. 21 cm). Nonetheless, most whiting stocks are currently overexploited. This is probably because most whiting caught in association with other demersal species have to be discarded as a result of the poor selectivity of the gears used primarily to target other species (cod, haddock, flatfish species) and the relatively low market value of whiting.

Fish discarded because they do not comply with MLS prescriptions are often dead. They are lost to both the fish stock and to the fishery. This loss of the resource can be avoided if the selectivity of the gear in use is such that only fish larger than the MLS were retained by the gear, and if fishing and catch handling procedures were adapted to maximise the survival of any organisms that are discarded. The primary intention of MLS when used as a management measure is to encourage fishermen to use more selective gears or avoid fishing in areas where under-sized individuals are relatively abundant. In European fisheries, MLS is used in combination with mesh size, catch composition and codend construction rules, with the intention that there should be a close correspondence between the selectivity characteristics of the gear in use and the MLS of the species being targeted to minimise undesired catches of undersized individuals.

A.4.3 Performances of spatial / temporal closures for conservation purposes

In 2007, STCEF was requested to evaluate the conservation benefits of many of the seasonally or permanently closed areas and recommend whether they should be maintained. Results of this evaluation with STECF opinion are available in SGMO (2007).

The following table summarises the main findings of the expert working group on the different spatial/temporal closures evaluated. The table includes conclusions on the effectiveness of the measure, identification of adverse effects when such occur, and recommendations on maintaining the closures.


Table 11: Summary of evaluations of the expert working group on evaluation of closed-area schemes. Source: SGMO (2007)

Time / area closure (date initiated)

Main findings of the evaluation Recommendation

Area for sandeel in ICES IV (2000)

Effectiveness: Improvement in sandeel until 2003 then dramatic decline Adverse effects: Effort displacement in adjacent areas as evidenced by high catches

Closure to be maintained (given the poor state of the sandeel stock)

Area for Norway pout in area IV

(1977 then 1986 in EU law) No data available

Closure to be maintained (until new data is available)

Windsock closure for cod (2000)

Effectiveness: Little effect on the demersal fish community, incl. cod. Adverse effects: None detected but more data is needed to properly evaluate effects of displaced effort

Closure to be maintained (given the poor state of the cod stock)

Celtic Sea cod closure (VIIf & g)

(2004)

Effectiveness: Supported a reduction of fishing effort of French fleet and displacement of other fleet away from spawning areas Adverse effects: Insufficient information to asses effects of displaced effort


Irish Sea cod closure (VIIa) (2000)

Effectiveness: Not possible to disentangle from other management measures. The stock is still declining Adverse effects: Potential but not assessed impacts of switching of whitefish trawlers to derogated Nephrops trawling or displacement of effort


Hake closure (South West of Ireland and Bay of Biscay)

(2002)

Effectiveness: Although the stock biomass increased since with also less juveniles in the landings, not possible to disentangle effect of closure from other measures. However, the closure is believed to have been effective to improve the selection pattern. Adverse effect: Possible displacement of effort to adjacent areas but not assessed

Closure to be maintained (until a transition to a multiannual plan)

Herring closures (spawning grounds)

(developed since the 70’s)

Effectiveness: Not possible to assess Adverse effects None known

Closure could be potentially removed

Herring closures (nursery grounds)

Effectiveness: Not possible to assess Adverse effects: None known

Closure could be potentially removed

Mackerel closures (SW of Ireland) (1980)

Effectiveness: Strong indications that the Mackerel box has been beneficial for the conservation of the stock Adverse effects: None known

Closure to be maintained (in view of its positive effects on conservation)

Rockall haddock box (ICES VI)

(2002)

Effectiveness: Exploitation rate on young haddock decreased, so potentially beneficial Adverse effects: Not known

Closure to be maintained (on the basis of perceived beneficial effect on conservation)


The plaice box

One closure that was not considered by SGMOS was the North Sea plaice box. This is a long-standing and complex closure that was first included in the technical measures regulation in 1989 in an attempt to reduce discard mortality on juvenile plaice. The objective of the closure was to enhance recruitment, yield and spawning stock biomass of plaice in the North Sea. Certain scientific studies have shown that in contrast to expectations, the recruitment, yield and spawning stock biomass of plaice decreased since the introduction of the plaice box while the rate of discarding in the waters outside the plaice box has increased (Pastoors et al. (2000); van Keeken et al. (2007)). The main reason suggested is that an offshore shift in the distribution of young plaice occurred in the 1990s most likely in response to higher water temperatures that may have exceeded the maximum tolerance range or increased the food requirements above the available food (van Keeken et al., 2007). Nonetheless, STECF (2004) recommended that the plaice box should be maintained as the majority of juveniles are still found in the area. No adverse effects of the closure have been formally identified although it has been suggested that the decrease of bottom trawling may have decreased food availability for plaice. Another recent evaluation of the plaice box highlights the importance setting testable objectives and an appropriate evaluation framework including both ecological and socio-economic indicators when implementing closed areas (Beare et al., 2013).

Real-Time closures

Real-time closures are a relatively new tool used in EU fisheries management. Consequently, their effectiveness could not be fully assessed as yet. However, STECF (2011a) notes that real-time closures, if fully implemented and enforced, will result in a reduction in cod catches.

A.4.4 Performances of technical measures for habitat protection

Under the EU’s Habitats and Birds Directives, Member States committed to develop and manage a coherent network of Marine Protected Areas within EU waters.

The current network of MPAs submitted to OSPAR as of end 201237 is shown in the figure below. There is a large number of MPAs within the territorial waters of Member States that are not visible because of the resolution of the map. For those MPAs inside territorial waters, Member States can take unilateral non-discriminatory habitat protection measures applying to any fishing vessels (Art. 9 of Reg. (EC) No. 2372/2002). However, when the measures may affect activities of foreign vessels, the Member State must notify the other Member States concerned and seek approval of the measures by the Commission.

When MPAs are delineated outside territorial waters of an EU Member States, habitat conservation measures which require regulations of fishing activities by fleets from different Member States can only be implemented through a CFP instrument (Fock, 2011). Such measures apply to all fishing vessels operating within the limits of the protected area.

37 The 2013 dataset will be available in July 2014 following approval of the OSPAR Commission meeting mid 2014


Figure 7: Marine Protected areas reported to the OSPAR Commission in the North East Atlantic and in the North Sea. Green : MPAs existing as of end 2011, in purple : MPAs added in 2012 in OSPAR registry. Source: OSPAR database (as of 31st December 2012)

So far, a number of MPAs have been established to protect vulnerable deep-sea ecosystems38 both inside the waters under EU jurisdiction and non-EU waters39. These areas are essentially closed to fishing vessels operating gears likely to interact with the bottom. The closures adopted include unilateral EU MPAs or MPAs adopted under the multilateral framework of RFMOs. The following table lists the MPAs currently closed to bottom fishing gears in the North Atlantic adopted under the multilateral context of NEAFC or unilaterally by the EU and both enforced in EU Law. Most of the closures have been first promulgated through the annual TAC & quota regulations before being added to Reg. (EC) No. 850/98 through amendments. Some closures have triggered a Council Regulation amending Reg. (EC) No. 850/98 (ex. Council Regulation (EC) No. 602/2004 amending Reg (EC) No. 850/98 for inclusion of closure of Darwin Mounts into the legislation).

38 Habitat type referenced “1170 Reefs” in annex 1 of Habitat Directive 39 For EU vessels operating in the high seas in areas that are not subject to regulation by a RFMO, Regulation (EC) 734/2008 introduces additional technical measures to protect vulnerable marine ecosystems including moving-on provisions, closures of areas in which fragile ecosystems have been detected, a specific licensing scheme and the carrying of observers.


Table 12: List of areas closed to bottom fishing to protect vulnerable deep-sea ecosystems in the North Atlantic

MPA name Current legal reference Initiating entity Decision year Part of the Reykjanes Ridge art. 34d of Reg. (EC) 850/98 NEAFC 2004 Northern MAR Area art. 34d of Reg. (EC) 850/98 NEAFC 2004 Middle MAR Area art. 34d of Reg. (EC) 850/98 NEAFC 2004 Southern MAR Area art. 34d of Reg. (EC) 850/98 NEAFC 2004 Altair Seamounts art. 34d of Reg. (EC) 850/98 NEAFC 2004 Antialtair Seamounts art. 34d of Reg. (EC) 850/98 NEAFC 2004 Hatton Bank art. 34d of Reg. (EC) 850/98 NEAFC 2004 North-West Rockall art. 34d of Reg. (EC) 850/98 NEAFC 2004 South-West Rockall art. 34d of Reg. (EC) 850/98 NEAFC 2004 Logachev Mound art. 34d of Reg. (EC) 850/98 NEAFC 2004 West Rockall Mound art. 34d of Reg. (EC) 850/98 NEAFC 2004 Darwin Mounds Art. 30.4 of Reg. (EC) 850/98 EU 2004 Seamounts Madeira, Azores and Canary Isl. Art. 30.5 of Reg. (EC) 850/98 EU 2004 Belgica Mound Province art. 34e of Reg. (EC) 850/98 EU 2008 Hovland Mound Province art. 34e of Reg. (EC) 850/98 EU 2008 North-West Porcupine Bank Area I art. 34e of Reg. (EC) 850/98 EU 2008 North-West Porcupine Bank Area II art. 34e of Reg. (EC) 850/98 EU 2008 South-West Porcupine Bank art. 34e of Reg. (EC) 850/98 EU 2008 El Cachucho art. 34f of Reg. (EC) 850/98 EU 2008

It appears from the table that no offshore MPAs around vulnerable deep-sea ecosystem has been formalised in EU legislation since 2009, although new reef type MPAs have been proposed to be part of the OSPAR network by EU Member States. An example is the Anton Dohrn Seamount designated by UK-Scotland for which ICES (2011) advised that a closure to all bottom-contacting fisheries be implemented. It appears that the EU legislation concerning deep-sea habitat may not be up to date. The reason could be that any addition to the list of area closed, or modifications of limits of previously enforced MPAs, require a Council / European Parliament procedure, which seems to be disproportionate.

In most cases MPAs that address conservation of other types of habitats (e.g. mudflats and sandflats referenced 1140 in annex 1 of Habitat Directive) will most probably not be “no-take” zones. Demersal fishing vessels may still be allowed in such MPAs providing their activities do not undermine the Habitat conservation objectives assigned. As it can be seen from the above map, some Member States have already designated several high-seas or offshore MPAs. This includes inter alia the Doggerbank MPA straddling the United-Kingdom / Netherlands / German EEZ as well as other MPAs in the North Sea.

So far, there are no instruments adopted under the CFP to support the fisheries component of MPAs management plans that are to be developed coherently by the Member States concerned (except previously mentioned closures around certain deep-sea ecosystems). For example, Netherlands recently adopted fisheries measures applying to the portion of the Doggerbank area in its jurisdiction, but these measures apply only to Dutch flagged vessels. Fishing vessels from other countries fishing in this area (Germany, Denmark, United Kingdom, Belgium, France and Norway) have to our knowledge no specific fisheries rules to comply with to underpin habitat conservation objective.


A.4.5 Performances of technical measures for mitigating impacts on protected species

There are a number of technical measures that have the objective of minimising impacts of fishing activities on protected species in the North Atlantic and North Sea:

• Reg. (EC) No. 812/2004 for the protection of cetaceans

• Reg. (EC) No. 894/97 banning the use of driftnets for targeting highly migratory species

• Measures adopted under the multilateral context of ICCAT to minimise interactions between fishing vessels targeting tunas and seabirds, marine turtles and sharks.

These are described in Section A.3.5.

The European Commission has carried out two separate reviews of Regulation (EC) No. 812/2004 (COM (2009) 368; COM (2011) 578) as required under Article 7 of the Regulation. In the latest review the Commission reached the following conclusions (summarised):

• Poor information provided by Member States on the extent of cetaceans by catches although other evidences suggest that there are significant interactions between fishing and cetaceans. Insufficient reporting may be the consequence of an overambitious sampling programme not necessarily focused on where bycatch is known to be occurring more frequently

• Acoustic Deterrent Devices have proved to be effective only in reducing bycatch of harbour porpoises in the static net fisheries but not for other cetacean species or with other fishing methods. There is a reluctance from fishermen to use the devices currently available due to practical handling issues and costs.

• The Commission further recall that under the Habitat Directive, Member States have the obligation to monitor incidental catches of cetaceans and ensure that accidental catches do not have significant impact on the regulation, but also incidental catches of pinnipeds, seabirds and marine turtles outside the scope of the regulation.

As a general conclusion, the Commission notes that the regulation is still not fully meeting its objective of reducing the incidental capture of cetaceans in fishing gears. ICES (2010) advises that Regulation (EC) No. 812/2004 should be extended to provide effective monitoring and mitigation measures to vessels of all length categories in the main fisheries with cetacean bycatch problems. At present, the Regulation is focused primarily on vessels of 15m and over for observations and for vessels of 12 m and over for mitigation measures, yet ICES notes that for most member states at least 75% of vessels in relevant fleets are less than 12 m in length. The Regulation therefore effectively excludes the majority of vessels that may be impacting cetacean populations.

Concerning the ban on large-scale driftnets contained in Reg. (EC) No. 894/97, the main outcome is that incidental catches of seabirds, cetaceans or other protected species by driftnets set in the high-seas has been almost eliminated. There is however a possibility that fishing for albacore tuna with pair pelagic trawls as an alternative may in turn have resulted in significant cetacean bycatch (ICES, 2013).

Measures adopted under the multilateral context of ICCAT to protect seabirds, marine turtles and sharks have not been evaluated mostly because of a lack of scientific information on the biological characteristics of the different species and lack of data on the extent of interactions with fishing gears.


A.4.6 Impacts of technical measures on discarding

Discarding arises for several reasons:

• Fish species are below the Minimum Landing Size

• Some fish species are caught in excess of the catch composition rules associated with use of certain small mesh-size gears

• Fishing vessels have no landing quotas for certain fish species caught

• Fish are dumped because better quality fish have been caught later on a trip (referred to as highgrading)

The current technical measures oblige fishers to discard for the first two of these reasons, i.e. catch composition and minimum landing size rules. The regulation explicitly mentions that in these two cases fish may not be landed but shall be returned to the sea prior to each landing (Art. 15 and Art. 19 of Reg. (EC) No. 850/98). The third reason for discarding is mainly the consequence of a poor quota management by Member States and no direct cost for discarding. The fourth reason, highgrading, relates to a commercial strategy and is not necessarily directly related to technical measures. Highgrading has been prohibited for quota species since 2009 (Annex III of Reg. (EC) No. 43/2009 and is now contained in Art. 19a of Reg. (EC) No.850/98.

The effects of technical measures on discarding can be measured by two indicators:

• The proportion of marine species discarded because they are below the MLS as a consequence of mismatches between gear selectivity and size of marine species caught

• Fish species that are discarded by fishing gears as a consequence of the catch composition rules. In this case discarding may also occur because the fishing vessels have a lack of quotas (e.g. cod or haddock discards by vessels targeting nephrops with a 70-79 mm mesh size).

Discard data is collected by Member States under the Data Collection Framework adopted under Council Regulation (EC) No. 199/2008 and implemented through Commission Regulation (EC) No. 665/2008. While discard data recorded continues to be highly variable in quantity and in quality, it does provide an indication of discard rates across fleets and fisheries for the main commercial species. This data is used in the analysis below to provide an indication of the effectiveness of technical measures to reduce discards.

A.4.6.1 Analysis of discards of some fleets regulated by effort regimes

Data on landings and discards of fleets regulated by an effort regime are available from annex II of STECF 12-16 report (STECF, 2012b). Two regulated areas have been selected in this study to try to establish a link between discard rates and technical measures.

For illustrative purpose, the following table details the landings and discards of some key species by regulated gears under Reg. (EC) No. No 1342/2008 in the North Sea, Skagerrak and Eastern Channel (ICES Areas IV, IIIa and VIId) for the period 2009-2011. The discard rate is the weight of discards divided by the total catches (i.e. landings plus discards). Data are presented for all regulated gears grouped together.


Table 13: Landings (t), discards (t) and relative discard rates in weight for selected species for all regulated gears aggregated 2009-2011 in the North Sea, Skagerrak and Eastern Channel. Source: STECF (2012b)

2009 2010 2011

Landings Discards Rate Landings Discards Rate Landings Discards Rate

COD 27 178 13 231 33% 29 670 9 846 25% 25 890 4 678 15%

HAD 31 809 9 942 24% 27 871 8 722 24% 28 174 8 580 23%

WHG 15 548 17 791 53% 17 165 60 681 78% 24 985 57 701 70%

NEP 25 333 6 840 21% 21 605 3 432 14% 17 492 782 4%

HKE 7 119 619 8% 6 034 985 14% 6 173 1 949 24%

PLE 61 962 52 902 46% 68 938 40 068 37% 74 228 29 100 28%

SOL 17 923 3 762 17% 14 826 1 688 10% 13 563 1 380 9%

Similar data are shown below for some key species caught by regulated gears under Reg. (EC) No. 1342/2008 in the West of Scotland (ICES Area VIa).

Table 14: Landings (t), discards (t) and relative discard rates in weight for selected species for all regulated gears aggregated 2009-2011 West of Scotland. Source: STECF (2012b)

2009 2010 2011

Landings Discards Rate Landings Discards Rate Landings Discards Rate

COD 228 657 74% 217 883 80% 191 1 203 86%

HAD 2 792 1 686 38% 2 877 2 944 51% 1 698 1 293 43%

WHG 481 809 63% 348 885 72% 225 296 57%

NEP 10 732 0 0% 10 186 0 0% 11 133 0 0%

POK 6 747 15 0% 5 179 439 8% 6 325 895 12%

HKE 5 232 94 2% 6 023 472 7% 6 558 1 622 20%

ANF 3 502 3 0% 1 936 27 1% 2 494 21 1%

Cod, haddock and whiting

Discard rates in the North Sea, Skagerrak and Eastern Channel tend to decrease over the period (33% to 15%). This is probably as a consequence of a combination of a reduction in fishing effort combined and the introduction of more selective gears in the North Sea. Discard rates of cod are highest for the TR2 segment (mesh size between 70 mm and 100 mm) with a discard rate of around 70%. The TR2 segment accounts for 11% of cod landings, but 46% of cod discards in the area considered. Cod discard rates for other regulated segments are significantly lower.

In the West of Scotland, the situation is opposite. Discard rates of cod tend to increase over the period. Most of the cod discards are attributable to the TR1 segment which had an average over the three years of ≈ 95% of landings and ≈ 95% of total discards of cod in West of Scotland according to data reported to STECF. This is despite increases in selectivity introduced for this area in 2009 when the mesh size was increased to 120mm with a 120mm square mesh panel. Landings and discards of cod by the other fleet segments are negligible.

Average discard rates for haddock were approx. 24% and 44% in the North Sea, Skagerrak and Eastern Channel and West of Scotland respectively. In the North Sea, the fleet with the highest discard rate was the TR2 fleet (13% of the catches but 64% of discards). In the West of Scotland, most haddock discards were attributable to the TR1 segment in 2009 (97% of landings and 98% of


discards). The TR2 fleet in 2010 and 2011 contributed less than 5% of landings but ≈ 90% of haddock discards. The high discard rate by TR1 trawlers in 2009 can be attributable to some extent to the catch composition rule (no more than 30% of any mixture of cod, haddock and/or whiting) applicable to the area exploited (Reg. (EC) No. 43/2009). Decreased by-catches of haddock in 2010 and 2011 reflect the result of avoidance of haddock by TR1 fleet but also possibly a bias in discard data. Note that the Commission accepted in 2012 a derogation to this specific catch composition rule as an emergency measure under Art. 45 of Reg. (EC) No. 850/9840 precisely to avoid massive compulsory discard of this species. Discards of haddock by TR2 fleet can be attributable to catch composition rules or lack of fishing possibility for this species.

Whiting is consistently discarded in both areas. In the North Sea, Skagerrak and Eastern Channel, and West of Scotland, discard rates of whiting were in the region of 65% on average over the three years considered. Again, the two areas show differences with most of the whiting discarded by TR2 fleets in the North Sea, Skagerrak and Eastern Channel (56% of landings but 77% of total discards of this species), and mostly TR1 in West of Scotland in 2009 and 2010 (approx. 95% of both landings and discards). In 2011, the TR2 segment was the main segment discarding whiting West of Scotland.

Sole and plaice

Data on discards are relevant essentially for the North Sea, Skagerrak and Eastern Channel since flatfish fisheries in other regions are comparatively less important and dominated by passive gears.

For plaice, the average discard rate was 37% with a decreasing trend. The main segment discarding plaice was the BT2 segment (mesh size between 80 mm and 120 mm) with 52% of total landings on average but 82% of total plaice discards in weight. The decrease in the average discard rate during this the period is principally explained by the decrease of quantities discarded by the BT2 and TR2 segments. The TR2 segment also had a relatively high discard rate of plaice (31% discard rate on average).

For sole, discards are generally low. The discard rate was lower than for plaice (≈ 11% on average across all segments) with most discards originating from the BT2 segment (80% of both landings and discards). Discards of sole in all other gears are negligible.

Nephrops

Discards of Nephrops in North Sea, Skagerrak and Eastern Channel decreased from 21% in 2009 to a low of 4% in 2011. This average discard rate reflects the discard rate of the TR2 segment which accounted for 93% of Nephrops landings and 94% of discards.

No comparison can be made with Nephrops discard rates West of Scotland due to lack of data for this later area in the STECF report.

Size distribution of discards

Detailed data on cod discards provided by some Member States on cod discards are presented below.

In the Netherlands, sampling of cod discards on TR2 trawlers targeting Nephrops (OTB_OTT_MCD) or demersal fish (OTB_OTT_DEF) indicate that in both cases, the large majority of cod discarded was below the EU MLS (35 cm). Discards of marketable fish are rare.

40 http://ec.europa.eu/fisheries/news_and_events/press_releases/2012/20120223/index_en.htm


Figure 8: Size distribution of cod discarded by the Dutch otter trawler vessels TR2. Source: van Helmond et al. (2011)

Sampling of discards on Netherlands TR1 demersal trawlers (figure below) indicated a high proportion of cod below the MLS of 35 cm but also quantities of marketable cod in 2009. In 2010, less cod was discarded and most fall in the category of undersized fish.

Figure 9: Size distribution of cod discarded by the Dutch otter trawler vessels TR1. Source: van Helmond et al. (2011)

In the Scottish fleet, discards of cod by the Nephrops fleet show a totally different pattern. As indicated in the table below, most fish discarded by the TR2 segment were marketable cod41. It is unclear whether marketable cod was discarded as a consequence of the catch composition rule or unavailability of quotas for this species. It is believed that the present high discard rates result from a combination of restrictive quotas, fishing opportunities for other species and year classes of cod (2005 and 2008 year classes) large enough to allow catches over and above the cod quota. More effective enforcement of the Buyers & Sellers Act (2005) is also thought to have had an influence as landings of illegal cod have all but eliminated (Fernandes et al., 2011).

41 These discards do not appear in the discard data used by STECF 12-16


Table 15: Cod discards (percentage rates) for (a) West coast TR2 Nephrops trawl & (b) North Sea TR1 demersal trawls by Scottish trawlers

A. West coast Nephrops trawl B. North Sea demersal fish trawl

Source: Marine Scotland Science, unpublished DCF data

Ireland

Ireland publishes comprehensive information on discards (Anonym, 2011). According to Irish data, the TR1 fleet discards varying proportions of cod under or above MLS. In some years (e.g. 2009, 2010 or 2012), the majority of discards consisted of undersized cod, with still significant proportions of marketable cods discarded. In other years (e.g., 2008 and 2011) discards of marketable cod formed the majority of discards. For TR2 (predominantly Nephrops trawlers), the size distribution of discarded cod is also highly variable. Proportions of discarded marketable cod were high in some years (i.e. 2011; 2012), but low in other years (i.e. 2008). TR1 discards of marketable cod relate to quota availability.

Table 16: Size distribution of cod discards by Irish TR1 and TR2 trawlers. Source: BIM based on Marine Institute data

TR1 Whitefish trawlers TR2 Nephrops trawlers

< MLS > MLS < MLS > MLS

2008 41% 59% 81% 19%

2009 67% 33% 49% 51%

2010 68% 32% 63% 37%

2011 25% 75% 34% 66%

2012 69% 31% 7% 93%

Denmark

The following graph shows the size distribution of cod by vessels fishing with a trawl gear of 120 mm mesh size in the North Sea (TR1 vessels). Cod discarded was approximately evenly distributed between fish below and above MLS. Since no particular catch composition rule applies to the use of 120 mm mesh size, the discard of marketable cod can be explained by insufficient quota and possibly highgrading.

Year < MLS (35 cm) > MLS (35 cm)2010 8.8 % 82.3 %2011 34.4 % 63.6 %2012 13.4 % 86.5 %

Year < MLS (35 cm) > MLS (35 cm)2010 2.7 % 21.0 %2011 0.6 % 16.9 %2012 0.4 % 21.1 %


Figure 10: Size distribution of cod discards in area IV by the Danish OTB_MCD_>=120_0_0. Source: Storr-Paulsen et al. (2012)

Haddock

Scottish data indicate that most haddock discarded were under the MLS. The percentage varied from one year to another from a 83% high in 2006 to a 36% low in 2004.

Table 17: Haddock discards by Scottish TR1 vessels in the North Sea (2004 – 2008). Source: Moody Marine Ltd (2010)

Year Total discard

(%) Discards < MLS

(a) (%) Discards > MLS

(b)-(d) (%)

2004 25 36 64

2005 15 47 53

2006 32 83 17

2007 50 77 23

2008 31 60 40

For Irish TR1 trawlers in the Celtic Sea, information on haddock discards show that the rate of discards of marketable haddock has decreased over the past five years. Recently most discards have been haddocks under the MLS. For TR2 trawlers, haddocks discarded included a majority of undersized fish with a small proportion of marketable fish. However, in 2012, the proportion was inversed with a majority of marketable haddocks discarded.


Table 18: Size distribution of haddock discards by Irish TR1 and TR2 trawlers. Source: BIM



2008 44% 56% 87% 13%

2009 53% 47% 96% 4%

2010 75% 25% 91% 9%

2011 69% 31% 81% 19%

2012 77% 23% 48% 52%

No other data on size distribution of discards of haddock in areas regulated under the cod plan could be found.

Whiting

The figure below shows the size distribution of whiting by the Dutch TR2 segment in 2009 and 2010. The vast majority of whiting discarded were below the minimum landing size of 27 cm. Some individuals in excess of MLS were also discarded. This could due to low economic value for such fish but or imprecise sorting onboard.

Figure 11: Length frequency distribution of discarded whiting by Dutch fleet segments using 70-99 mm mesh sizes (TR2). Source: van Helmond et al. (2011)

For the French fleet, a similar pattern was observed. Most of the whiting caught by the demersal trawlers operating in the Eastern channel and in the south of the North Sea were undersized individuals.


Figure 12: Size distribution of whiting discarded (blue bars) and of whiting kept onboard (white bars) by the French otter trawl fleet operating in the south of North Sea and Eastern Channel. Source: Dubé et al. (2012)

For TR1 Irish fleet, the majority of discard included marketable whiting with high proportions recorded since 2008. For TR2 fleets, the majority of whiting discarded was undersized fish, with however higher proportions of marketable fish discarded in 2010 and 2012.

Table 19: Size distribution of whiting discards by Irish TR1 and TR2 trawlers. Source: BIM



2008 19% 81% 87% 13%

2009 25% 75% 66% 34%

2010 25% 75% 41% 59%

2011 34% 66% 63% 37%

2012 24% 76% 36% 64%

No other data could be found on the size distribution of whiting discards by other fleets in the two areas under effort regime.


Plaice

Data on discards from the Dutch beam trawl fleet show that most of the plaice discarded were below the minimum landing size (27 cm).The comparison between BT2 segment (two upper boxes) and the BT1 segment demonstrate the difference between selectivity patterns of the two range of mesh sizes.

Figure 13: Length frequency distribution of plaice discarded by Dutch beam trawl segments using 70-99 mm mesh sizes (BT2) and > 100 mm (BT1). Source: van Helmond et al. (2011)

No other data could be found on the size distribution of plaice discards by other fleets in the two areas under the effort regime. Anecdotal evidence from the French fleet in the Eastern channel indicate a similar pattern of discards of plaice mainly under the MLS (Dubé et al., 2012).


Sole

Discards of sole by the Dutch beam trawl fleet (BT2) fishing with 80mm was made up essentially of undersized fish (MLS is 24 cm for this species). In other fisheries discards are negligible as shown by the discards of the same species by the BT1 segment.

Figure 14: Length frequency distribution of sole discarded by Dutch beam trawl segments using 70-99 mm mesh sizes (BT2) and > 100 mm (BT1). Source: van Helmond et al. (2011)

No other data could be found on the size distribution of sole discards by other fleets in the two areas under effort regime.


Nephrops

Dutch data on discards demonstrate that the majority of Nephrops discarded by hour were individuals above the MLS of 2.5 mm carapace length. Since there is no catch composition rule issue with this target species, the discards may be caused either by insufficient quota or due market considerations. Data for Denmark and Sweden, the MLS of Nephrops has been unilaterally set at 4.0 cm carapace length, revealing probably a regional preference for large Nephrops.

Figure 15: Length frequency distribution of Nephrops discarded by the demersal otter trawl segments using 70-99 mm mesh sizes (TR2). Source: van Helmond et al. (2011)

A.4.6.2 Other fisheries

The French Nephrops fishery in the Celtic Sea

This fleet targets Nephrops in the Celtic Sea with twin trawls of 70 mm mesh size. The catches are also made up of a variety of fish species.

Data on discards rate (discard weight / catch weight) for 2011 were as follows (Dubé et al., 2012):

• Nephrops: 16%

• Haddock: 37%

• Cod: 1%

• Whiting 46%

Data on size distribution of individual discarded and individuals kept onboard are shown below for Nephrops, whiting and haddock. It is apparent that 95% of the discards of Nephrops (in number) were individuals below the MLS. For haddock, the distribution was balanced with 56% of discards below the MLS. For whiting, most discards are above the MLS (95%).

For Nephrops, the data suggests a moderate discard rate of 16% attributable to catch of individuals under the MLS. For whiting and haddock, the discard rate was higher. Whilst some haddock is retained on board, significant quantities of marketable size were discarded (56% in number). For


whiting, discards of marketable size appear to be the rule (in the year for which data is presented). There is here a likely influence of catch composition rules incentivising fishermen to discard the least valuable whitefish species (whiting) to balance catch composition in accordance with EU rules. Both haddock and whiting landing quotas for France in this area are underutilised.

Figure 16: Size distribution of discards (blue bars) and catches retained onboard (white bars) for a selection of target species of the French Nephrops fleet in the Celtic Sea for 2011. Source: Dubé et al. (2012)

The French Nephrops fishery in the Bay of Biscay

This fleet targets Nephrops in the Bay of Biscay (ICES division VIIIa). The discard rate for the two main species caught (Nephrops and hake) was as follows for 2011 (Dubé et al., 2012):

• Nephrops:31% • Hake: 41%


As shown below, 86% of nephrops discarded in number were below the MLS for this fishery. For hake, the 97% of discards were under the MLS. Note that for this fishery and for areas outside the Hake Boxes, the French authorities have imposed additional technical measures requiring a more selective gear (80 mm mesh size or square mesh panel in the bottom or grid) and an increase in MLS of 2.6 cm carapace length42.

Figure 17: Size distribution of discards (blue bars) and catches retained onboard (white bars) for a selection of target species of the French Nephrops fleet in the Bay of Biscay for 2011. Source: Dubé et al. (2012)

Dutch small pelagic freezer trawlers

The pelagic freezer trawler fishery targets pelagic species, namely herring, blue whiting, horse mackerel, mackerel, greater argentine, and pilchard. The total landings of the Dutch fleet were about 201,000 tonnes in 2010. Horse mackerel and herring were the most abundant landed species.

Overall, the discard percentage for the Dutch pelagic fleet in 2010, based on 8 sampled trips, was estimated at 6% in weight. Discard percentages of target species herring, horse mackerel, and blue whiting were relatively low (1%, 1%, and 4% respectively). For mackerel the discard percentage was significantly higher (18%) (van Overzee and van Helmond, 2011).

Distribution of fish discarded is shown in the figure below. Most herring and mackerel appear to be discarded because they were below or in the region of the MLS (20 cm for herring; 20 cm or 30 cm in

42 Déliberation CNPMEM n°34/2008 enforced by Arrêté du 27 janvier 2009 (NOR : AGRM0902912A)


the North Sea for mackerel). Discards of horse mackerel appear to include individuals of sizes greater than MLS (15 cm for horse mackerel). Market price seems to be the driving factor in these fisheries.

Herring Horse mackerel

Mackerel Blue whiting Figure 18: Numbers of small pelagics landed and discarded against length (cm) for 2010 for all trips sampled on board Dutch pelagic freezer trawlers. Source: van Overzee and van Helmond (2011)

Anecdotal information implies most discarding occurs when more fish is caught than can be stored in the cooling tanks, where the fish is stored prior to processing onboard. In addition, fish-quality issues, unprofitable mixtures of species, or a lack of quota, could also be reasons for this discarding behaviour (van Overzee and van Helmond, 2011). The discard composition and length frequency data shown above are only based on routinely sorted discards. Data do not consider slippage (act of discarding fish before sorting, i.e. the catch or the proportion of the catch not brought on board for processing) estimated to represent up to 10% of total discards of this pelagic trawler fleet, with the most common species slipped being herring (Borges et al., 2008).

A.4.7 Impacts of technical measures on MSY conservation objectives

The potential contribution of technical measures to the attainment of conservation objectives has been recently reviewed by STECF (2013).

In terms of fishing pressure, technical measures can affect both exploitation patterns (EP) i.e. the distribution of fishing pressure across the demographic (age) spectrum of a given stock and secondly affect the overall exploitation rate through the deployment of species selective gears which avoid the


capture of specific species in a given gear. Therefore, and in the context of the overarching objectives of the new CFP, technical measures can contribute to the attainment of Fmsy objectives through either mechanism. Scott and Sampson (2011) note that the exploitation pattern has a significant influence on the point estimates of Fmsy for a given exploitation rate and in general a higher exploitation pattern results in a higher Fmsy yield. Therefore, technical measures through adjustments in gear design and operation as well as spatial and temporal controls have the potential to contribute significantly to changes in exploitation pattern and therefore changes in the potential yield that can be removed from a stock due to changes in Fmsy exploitation rates.

Until a recent time, the EU management strategy has more focused on the exploitation rate than on the exploitation pattern through the fixing of TACs and effort / capacity limits (Froese et al., 2008). Current management is estimated to underutilise the potential of exploitation pattern as a driver, in addition to exploitation rate (F), for the achievement of MSY targets (STECF, 2013). However, the additional technical measures implemented under the different management plans since the 2002 reform have probably supported recovery of certain stocks albeit to a non measurable extent. As outlined by the Commission in its recent communication on fishing possibilities for 2014 (COM (2013) 319), only 39% of stocks were overexploited in 2012 compared to 94% in 2005. However, the actual contribution directly related to technical measures is very difficult to measure as indicated by STECF as it is difficult to disentangle the effects of technical measures from other measures such TAC and effort regulations.

A.5 Improvement of gear selectivity: tools available and uptake by the fishing industry

It can be said that considerable research funding has been targeted at improving the selectivity of fishing gears or decreasing the impacts of fishing gears on habitats. This funding has come from National programmes or under pan-European programmes co-funded by the EU (structural funds or Framework Research Programmes). A list of the major research programmes on selectivity can be found on the European Fisheries Technology Platform43. Through the research Framework Programmes, the EU has promoted several large projects including (source of information on projects: CORDIS) including inter alia:

• DEGREE44 (Setting course for low-impact fishing gear) with budget of 3.4 M€ (2.0 M€ EU) over 2006-2009;

• DISCBIRD45 (Effects of changes in fishery discarding rates on seabird communities) with budget of 1.6 M€ (1.4 M€ EU) over 2002-2012;

• NECESSITY46 (Nephrops and cetacean Species Selection Information and Technology) with budget of 7.7 M€ (4.3 M€ EU) over 2004-2007;

• SURVIVAL47 (An assessment of mortality in fish escaping from trawl codends and its use in fisheries management) with budget of 2.6 M€ (1.3 M€ EU) over 2002-2012;

43 http://www.eftp.eu/ The European Fisheries Technology Platform is a forum where all stakeholders from the fisheries sector can participate in the definition of a common Vision and the Strategic Research and Innovation Agenda, driving the necessary innovation efforts forward. 44 http://cordis.europa.eu/projects/rcn/78606_en.html 45 http://cordis.europa.eu/projects/rcn/91635_en.html 46 http://cordis.europa.eu/projects/rcn/73838_en.html 47 http://cordis.europa.eu/projects/rcn/16835_en.html


• RECOVERY48 (Research on effective cod stock recovery measures) with budget of 2.8 M€ (1.5 M€ EU) over 2002-2012;

• OMEGA49 (Development and testing of an objective mesh gauge) with budget of 0.7 M€ (0.4 M€ EU over 2002-2005.

These six projects alone represent a cumulated total investment of 18.8 M€ including 10.9 M€ funded from the EU budget. Structural funding has also been utilised to support collective actions with a similar objective of improving selectivity of fishing gears. For example, France allocated ≈ 2 M€ between 2008 and 2012 to support 11 selectivity projects (incl. 0.9 M€ from EFF and 1.1 M€ National contribution).

The following sections briefly review the main focus of the various research programmes focusing on technology of certain fishing gears and their contexts.

France

Research on the selectivity of Nephrops fishing gears was a priority in the early 2000s mainly as a response to the hake recovery plan which included an increase in mesh size from 70 mm to 100 mm. Several selectivity devices were tested by IFREMER on commercial vessels including square mesh panels, sorting grids or larger meshes in the wings of the trawl. Amongst all devices tested, the introduction of a square mesh panels proved to be the most acceptable trade-off between loss of marketable Nephrops and quantities of juvenile hake saved. Square mesh panels in 70 mm trawls were introduced in the French (2004) then EU (2006) legislation as a condition to use 70 mm trawls under the hake recovery plan.

The rate of undersized Nephrops in the catches was still a concern and further research has been conducted to improve the Nephrops selection patterns of 70 mm trawls: sorting grids, additional square mesh panel in the bottom of the trawl and increasing codend mesh size to 80 mm. All devices proved to be effective to variable extent to save juvenile Nephrops. The industry accepted the results and unilaterally imposed through national legislation50 the mandatory use of one of these three selectivity devices as a condition attached to the licence when fishing for Nephrops in the Bay of Biscay The MLS was also increased to 2.6 mm CL.

The improvements were not estimated to be sufficient and further development of selectivity of 70 mm trawl has been investigated. Devices tested included a specific sorting grid and the construction of the front end of the codend with square mesh panels encompassing the circumference of the codend. Results were encouraging for both Nephrops and hake but there were loss of marketable species. Probably for this reason and also because of the forthcoming discard ban, the fishing industry have not adopt these improved gears.

In the Eastern Channel and in the North Sea, research has focused on the selectivity properties of demersal trawls. The first programme (Sauplimor in 2000) sought to improve selectivity of cod and other species to decrease as much as possible by-catches of undersized fish. A square mesh panel proved to be an effective solution but the industry did not adopt the solution. Subsequent programmes have focused on whiting (SelecMer) and cod (SelecCab) selectivity with use of square mesh panels and sorting grids, or a combination of both. The results have shown that up to 30% of the number of undersized fish can be released with improved fishing gears, but again the industry has not adopted the selective gears.

48 http://cordis.europa.eu/projects/rcn/91400_en.html 49 http://cordis.europa.eu/projects/rcn/91619_en.html 50 Délibération 34/2008 of CNPMEM


Spain

The industry and national research institutes carried out two projects in 2000 (Pre-Redes and Bakasel) with the aim of improving selectivity of certain towed fishing gears (mesh configurations, square mesh panels, grids). Reportedly due to a lack of funding, these projects were not fully developed and as a result, there was no uptake by the industry of any of the options tested. An ongoing project (FAROS51) is currently investing spatial tools to reduce discards, and at the same time technological solutions to valorise them.

Scotland

In Scotland, a lot of research has been conducted to improve the selectivity of trawls involved in towed gear fisheries in the West of Scotland and North Sea since the early 1970s. More recently a number of industry/Science partnership projects examined effects on selectivity of increasing mesh sizes, square mesh panels, twine thickness, sorting grids, extension length of trawls, lifting bags or towing speed. Much of this initial research was very reactive, becoming more strategic once the long term management plan for cod was introduced. At the end of 2007 the EU gave individual Member States the flexibility to run their own days at sea scheme as a pilot ahead of future EU-wide implementation of ‘effort’ schemes. This stimulated a new wave of research, most of which was conducted through a new ‘Scottish Industry Science Partnership’ (SISP) programme. This was based on two pilot projects over 2006 – 2007:

• Pilot Report B/07: Scoping Study for obtaining detailed data on the industry for Fisheries Management.

• Pilot Report A/07: Further selection trials of a 95mm codend with a 120 mm square mesh panel in the North Sea mixed Nephrops/whitefish trawl fishery.

In 2012, preliminary discussions identified an urgent need for gear work and a portion of the funding has been used to develop gears to reduce cod capture by 60% in Nephrops trawls using the Faithlie Cod Avoidance Panel (FCAP) and FLIPFLAP gears.

As stated earlier, much of the earlier gear-related research (e.g. 1995 – 2005) was largely reactive. As a result, take-up was low For instance the EU funded Nephrops Trawl Discard Reduction using Activating Selection Grids (NETRASEL) project in which MSS (as FRS) participated over 1999 – 2001 demonstrated a strong selectivity but there results were not really adopted by industry. Over recent years, when research has been focused assist fisheries adapt to the Cod Recovery Plan, most of Scottish research has been conducted with PO support and active participation from the industry in developing and trialling new gear combinations. As a result – and with the economic incentives offered by the Conservation Credits Scheme, up take of both TR1 gear modifications (mostly voluntary) and TR2 gear modifications (mainly mandatory) have been more successful.

England

Research in England has primarily focused on discard management. However over the last ten years the focus of research and development related to gear selectivity has shifted from describing patterns and trends in discards amongst fleets to identifying gear based technical solutions and then to determining what incentive frameworks are needed to change industry behaviour and achieve uptake mechanisms. Over the last ten years, there have been two main research programmes directed at improvements to selectivity of fishing:

1. An overarching project called ‘Practical steps to reduce discards’ running from 2008/9 to 2012/13, funded primarily by DEFRA, but with matching funding provided through the EFF

51 http://www.farosproject.eu/


and additional funding from the SEAFISH Fisheries Challenge Fund. This umbrella project led to a number of specific gear trial pilot studies.

2. The Fisheries Science Partnerships also funded by DEFRA, which has involved a number of one-off trials testing a variety of selective gear options in a range of fisheries.

In the first of these programmes, analysis of DCR and DCF data was used to prioritise fleets or fisheries with the most significant discard problems. Social science and market studies were also commissioned to explore opportunities with industry to develop projects (CEFAS, 2010). Three important pilot projects followed: Project 50%, the South West Otter Trawl Project, and the North West Discard Project.

Project 50%, carried out in 2009-10, involved a beam trawl mixed fishery targeting cuttlefish and plaice in ICES Area VIIe. The fleet was discarding sole due to a combination of low quota and the poor gear’s effectiveness at catching marketable fish. Initially industry was reluctant to be involved, however industry interest increased due to a potential cut in the Western Channel sole quota at the time and an improved perception of support and communication with management resulting from a initial social study. Vessels trialled new gear designs selected with input from each skipper on which test gear suited their vessel/operations. Trial nets incorporated features such as larger meshes, square mesh escape panels and cutaway headlines which allowed small fish to escape. The results were very good, with an average discard reduction of 52% across all trials. There were some losses in marketable fish, but other benefits of the new gear outweighed these losses. Other benefits were that nets needed replacing less frequently and also fuel savings. A separate economic study of the project, confirmed other economic benefits of the new gear (CEFAS, unpublished report). Some of the gears tested were subsequently taken up by vessels in the fishery, including vessels that didn’t participate in the trials. A follow up study two years after the trials confirmed that skippers were still using the new gears in the areas in which the new gear had been tested.

The pilot project ‘South West Otter Trawl Project’ (SWOT) ran from 2010-2011. The fleet was comprised of mixed vessel sizes and gears (mainly single and twin trawlers and one pair trawler) with very different catch compositions. Industry interest was good from the onset. These vessels were mainly catching non-quota species so the research was focussed on minimising losses in the value of landings associated with the move to larger mesh sizes. Trawl modifications fell into four categories: larger meshes in the body of the trawl; larger meshes in the codend; square mesh panels; and, sections of netting turned 90 degrees (so called T-90). Some designs incorporated more than one of these modifications. The results showed that the trawls with larger meshes in the codend resulted in the largest reduction in discards by weight. Seven out of the nine reported reductions in discards of 19-55% without a reduction in the value of landings. However, the critical results relevant to the evaluation were that two of the gear designs tested that showed promising results, are actually deemed illegal under Regulation (EC) No. 850/98. The first of these included use of square mesh all around the codend. The second used a separator panel using two different mesh sizes within the codend which fall into two different mesh size ranges (70-99 and 120>). Research was also undertaken to explore the behaviour of different species whilst interacting with the gear. Six months after the trials were completed, 17 of the 19 skippers continued to use the modified trawls. The catch patterns that resulted with the use of the new gears meant that the effectiveness of the modified gears are unlikely to remain constant; the real value of the trials was behavioural change.

The pilot study ‘North West Discard Project’ ran from 2010 to 2013. The project originated through industry initiative and subsequent discussions with CEFAS. The trials involved the Nephrops fleet in the Irish Sea based in the port of Whitehaven, which catches large numbers of undersized plaice and dab. The first stage of the project involved a social study commissioned by CEFAS which indicated that discard problems were driven by selectivity issues, rather than quota or catch composition rules. Gear modifications included removal of sweeps, the use of sorting grids, escape panel sections and square mesh panels. There was considerable interest in the results of these trials, due to the UK


Fisheries Ministers’ commitment to introduce highly selective nephrops trawls in UK fisheries, in line with the EU cod plan.

The aims of this Fisheries Science Partnership are to: provide information from catches on key stocks to supplement data sources traditionally used in assessments; address fishermen's own concerns about scientific assessments, and consider stocks not currently assessed. The trials also investigated innovative scientific methods and/or more selective/environmentally friendly fishing methods; as well as supporting the work of Regional Advisory Councils. Research by English scientists has included trials of gear configurations to improve selectivity and collection of data on bycatch of elasmobranches.

Other work undertaken includes inter alia: a pilot scheme for North Sea cod catch quotas, which have proven effective at incentivising more selective fishing practises; the use of multi-rig trawls in prawn fisheries to reduce demersal catches; the use of escape panels to reduce cod catch in the North Sea mixed demersal fishery; additional square mesh panels in nephrops trawls to reduce whiting bycatch; and, further work on the large mesh “Eliminator” trawls to decrease cod catches.

Denmark

Research in to fishing gear technology and gear selectivity in Denmark has primarily focussed on fisheries in the Kattegat and Skagerrak. This is due primarily due to the relatively high discard rates in the Skagerrak and Kattegat Nephrops fishery observed with the standard 90 mm codend mesh size. In the North Sea fisheries Denmark was extensively involved in the EU funded RECOVERY Project from 2003 to 2006, in collaboration with research institutes from other EU Member States. This project focussed on developing species-selective gear prototypes for multi-species North Sea demersal trawl fisheries, to support the objectives if the Cod Recovery Plan of reducing fishing mortality on cod. There were no direct outputs from the RECOVERY project that were taken up by fishermen at the time, though the gear trials conducted were considered by the scientists involved to have been instrumental in laying the foundation for research that has underpinned development of more selective gears. Other research in the North Sea has focussed on attempting to reduce bycatch of cod and other whitefish through cut-away trawl designs and square mesh panels.

There has also been extensive work in the testing and development of selectivity devices used in other fisheries, notably the SELTRA trawl which is currently used in both Skagerrak and Kattegat fisheries and can also be used in other TR2 fisheries in the North Sea and North East Atlantic, for example in ICES Area VIIa. Danish scientists have also tested T90 codends following on from work in the Baltic where such codends are legal. Denmark (and Swedish) scientists have also evaluated Danish and Swedish temporal/spatial area closures in the Skagerrak and Kattegat, aimed at cod-avoidance in line with the objectives of the cod plan (Anonym, 2012).

Finally extensive work has been undertaken in developing software packages for analysing selectivity trials, and theoretical models to analyse the selectivity of fishing gears reducing the need for expensive commercial trials. These include SELNET, FISHSELECT, NETVISION and PRESEMO.

Ireland

As in the UK, there has been a large amount of research into gear selectivity with work beginning in the early 1990s. In recent years as a direct result of the incentive for use of selective gears contained in Art. 11 & 13 of Reg. (EC) No. 1342/2008. Trials carried out by the Irish Sea Fisheries Board (BIM) have looked at gear options that would reduce cod catches in Nephrops fisheries in the Irish Sea maintaining cod catches at the thresholds (1%, 1.5% and 5%) required under the cod plan. Similar trials have been carried out in Nephrops fisheries in the Celtic Sea Area VIIb-k. Gears tested were sorting Grid, separator panels and large square mesh. Results showed significant reductions in cod by-catch with all gears with the sorting grid being the most effective at reducing cod by catch.


Subsequently three vessels in the Irish Sea opted to use the grid and gained exemption from the effort Regime. Now, reportedly 26 vessels use the grid.

Pelagic fishing has also been investigated. The main aim of the project was to improve the size and species selectivity of pelagic trawl designs used in the mackerel and horse mackerel fisheries through the development of flexible grid systems. Two designs were tested during the trials. The results show clear evidence of escapement of mackerel from the grids. However, there is a lot of doubt from the scientific community as to the survival of the fish after their escape. Since the trials many fishermen have used the pelagic grids on a voluntary basis.

Irish research has also investigated the potential benefits of closures for the protection of Nephrops cod. The initiative led to implement in the EU legislation the Porcupine Nephrops closure and the closure of the Greencastle Codling Fishery to protect juvenile cod.

Netherlands

The beam trawl fisheries targeting sole and plaice have been the focus of research. Several gear modifications were tested: large-mesh or square-mesh panels at different locations and orientation in relation to the trawl codend; increased codend mesh sizes; and electric pulse fishing. The effectiveness of the modifications varied for different species groups. Reduction of undersized flatfish (plaice, dab) discards through gear modifications in most cases lead to the loss of marketable sole. There is no technical adjustment yet that solves this issue. Reduction of demersal fish discards has focused mainly on cod and whiting. For cod, none of the adjustments have shown a significant discard reduction. For whiting, larger mesh sizes in the upper part of the net are effective, but this has only limited effectiveness depening on the net design.

In otter trawl fisheries (single or multiple trawls), the use of square-meshes in different parts of the trawl net have been tested. Square-mesh panels in the lower part of the net reduced the presence of undersized plaice discards. In the Nephrops fishery both square mesh panels and horizontal or inclined separator panels yielded promising results, separating demersal species (haddock and whiting), which swim upwards inside the net, from Nephrops, which typically remain at the bottom of the net.

In the Crangon shrimp fishery, several gear modifications have been tested to exclude non-shrimp catches: sieve nets, Nørdmore grid, a release hole with guidance panel and pulse fishing. Other studies carried out elsewhere also considered changes to the codend mesh sizes (16, 22, 24 and 26 mm mesh) to reduce catches of undersized shrimps

In the pelagic trawl fisheries, inner mesh panels for separating herring and Atlantic horse mackerel were tested with limited success, because these species mix shortly after entering the net due to capture stress. To avoid megafauna catches some excluder devices have also been tested principally in the fishery in Mauritania. One excluder device, the “tunnel excluder” reduced accidental mortality of the most vulnerable megafauna species by at least 40–100%.

According to IMARES, there is virtually no uptake of research outputs by the fishing industry. The main reason considered is that any loss in marketable species is considered uneconomic. However, there has been uptake of the pulse trawl. This is driven principally by the fact that this gear reduces fuel consumption by up to 60% compared to a standard beam trawl that it is designed to replace. Additionally, according to experimental results, the pulse trawl reduces discards of plaice and can increase catches of marketable sole (van Marlen et al., 2011), although results are variable and depend very much on the electric pulse used.


Belgium

Belgian research is mainly concentrating on improving the selectivity of beam trawls targeting flatfish (sole, plaice), principally with the aim to separate sole from plaice and reduce discarding of plaice and other demersal species. Several modifications have been tested by ILVO such as square-mesh panels, T90 codends and horizontal separator panels. Some of these gear options have shown potential in reducing discards. However, there has been a lack of uptake by the sector. This low level of uptake is mainly due to the lack of economic incentives for the adoption of selective gears by fishermen.

There has been also work on the development of electric pulse fishing for shrimp. The Belgian Management Authorities however refused to grant licences for this specific gear, on the basis that it could lead to an increase in fishing effort in vulnerable areas.

Most of the research conducted by the national institute ILVO is made in partnership with Dutch organisations (IMARES notably).

Concluding remarks

Research on fishing gear technology, often conducted under different types of Science/Industry partnership, has identified a wide array of technical solutions to reduce catches of undersized individuals and to avoid catches of unwanted species. When analysing the details of the various experimental studies, it is apparent that there is not one solution that fits all fisheries. The different selectivity devices analysed individually or in combination give results that are applicable to particular situations and may not work in other areas or on other stocks. Local knowledge on fisheries conditions is of paramount importance when trying to find the best compromise between improved selectivity and minimisation of catch loss or additional handling work of gears. It is interesting to note that none of the devices or gear modifications tested can eliminate discards completely.

Uptake of research results by the industry is considered disappointing in most Member States (e.g. France, Netherlands). The main reaction being “why should I make efforts if other fishermen do not ?” Clearly, there needs to be an incentive for fishermen to unilaterally improve the selectivity of their gears. According to experience, incentives can be:

• Additional fishing possibilities: examples of uptake of the incentives promoted under Art. 11 and 13 of Reg. (EC) No. 1342/2008: Scottish Conservation Credit Scheme, Dutch cod avoidance plan, use of sorting grids in Ireland and Sweden.

• Possibility to continue to exploit an area subject to time area restriction: examples of selectivity improvement of Nephrops trawl in the Bay of Biscay in the hake boxes or Nephrops trawls used in the closed area of the Irish Sea.

• Improved short-term economic performances: whilst greater selectivity generally leads to decreasing revenues, one counter-example is the development of the pulse trawl in Netherlands which, in addition to presumed improved selection of catches, also improves profitability of the beam trawl segment though decreased fuel consumption.

The other point to notes that implementation of selective fishing techniques in Member States have continued to follow a prescriptive legislative in defining the characteristics of the gears that should be used (e.g. Scottish Credit Scheme in Scotland, Nephrops trawl in France or many other regulated activities in the territorial waters). Legislation has either been at EU or national level.


A.6 Member States initiatives in relation with technical measures

A.6.1 In inshore waters

Article 46 of Regulation 850/98 provides that Member State may take non-discriminatory measures for the conservation and management of fisheries resources and to minimise the effect of fishing on the conservation of marine eco-systems within their own territorial waters (i.e. inside 12 miles). The measures taken must be no less stringent than current Community legislation.

This provision has been extensively used by a number of Member States to adopt National technical measures on fishing periods, gear used, minimal landing sizes, etc. These measures have concerned species that are not directly regulated by the Council through TACs as well as regulated species. The number of such National technical measures is very high, and it can be said that few inshore areas in the North Atlantic and the North Sea are not regulated by a National instrument that complement or supplement the EU technical measures framework. Examples include:

• Prohibition on trawling within a certain distance from the Coast (France, United Kingdom).

• Prohibition of fishing for certain species: seabass in Ireland.

• Additional prescriptions on fishing gears: length of passive nets, shellfish dredges dimensions, number of pots.

• Minimal landing sizes in excess of EU MLS or supplementing the EU list of species covered by MLS (almost all Member States).

• Time area closures: seasonal access to scallops fishing grounds (France), seasonal restrictions for shrimp fishing (France, Netherlands, Denmark), closures for cod conservation (Clyde closure in the United Kingdom or Greencastle closure in Ireland).

Generally speaking, these National technical measures are adopted through regional “comitology” processes involving the fishermen representatives. They are well accepted, and probably satisfactorily complied with. In addition, these measures concern primarily national vessels in fishing areas where there are few if any vessels from other Member States operating. There are however some examples where acceptability of National measures can be undermined by operations of foreign vessels:

• The French Normandy scallop fishery: French dredgers are regulated by stringent National rules within the territorial waters. However, local scallops stocks extend beyond the 12 miles limit. They are exploited by large UK dredgers when the French fleet is prohibited to fish. The two parties could not reach an agreement and as a result, French fishermen are now considering substantial modifications of the National management arrangements.

• Dutch passive net fishery: by National law, the maximum length of passive nets that can be deployed by Dutch vessels fishing for flatfish is 25 km. When Danish vessels access to the zone, they are not bound by this limitation. This generates tensions and rejection by Dutch fishermen of this unilateral rule.

A.6.2 In offshore waters (outside the 12 miles)

There are also examples of National measures applying to waters beyond the 12 miles zone. This include inter alia:


• The Irish technical measures on Nephrops trawlers in the Irish Sea

• The French technical measures on Nephrops trawlers in the Bay of Biscay

• The Spain-Portugal joint management framework for the Iberian sardine stock

• The Sweden-Denmark joint management framework in the Skagerrak

These examples have different rationales.

For the first two examples, the National fishing fleet are almost the only one to have fishing possibilities in the area concerned. The additional technical measures adopted by these Member States do not create a less favourable discriminatory treatment for the fleet concerned in comparison with other fleets that may have access to the zone. The arrangements are therefore well accepted. Fitzpatrick et al. (2011) arrive at the same type of conclusion when examining the potential for changing the governance system in a selection of fisheries.

The third and fourth examples are genuine examples of transboundary management cooperation between Member States. The Spain - Portugal joint management of Iberian sardine stock is a response to the poor status of the stock that is otherwise loosely regulated by the Council (no TAC, no effort restriction). The fishery is managed since 1997 by the two countries through minimum landing size, maximum daily catch, days fishing limitations, and closed areas. Spanish and Portuguese vessels form the only fishing fleet active on this stock.

The Sweden-Denmark joint management framework has a different rationale as it follows the revocation by Norway of the Skagerrak agreement. In the absence of a dedicated CFP instrument (pending), the two Member States along with Norway have agreed on a certain set of technical measures (gear configuration, closed areas).

The few examples provided indicate that Member States are keen to take their responsibilities and impose stringent technical measures to complement or supplement EU rules often at the request of fishermen organisations. What emerges, however, is that measures are adopted when they do not create less favourable conditions to National vessels compared to other Member States vessels exploiting the same fishery, i.e. when rules concerns fishing activities in the 12 miles zones where activities of other Member States vessels are prohibited or anecdotal; or in offshore waters where the National fleet has the vast majority of fishing possibilities granted by the Council with consequently low presence of other fishing entities. In these two cases, the benefits of the measures in terms of conservation accrue predominantly to National fishermen.

The Spanish-Portuguese or Danish-Swedish arrangements show that two Member States can have the capacity to reach a transnational agreement enforced through National regulations when the need arises. When more than two Member States are concerned, there are fewer examples of transnational initiatives. However, this is logical as it is precisely the role of the CFP under its current architecture to implement non-discriminatory rules applying to all fleets. Some of the RACs created after the 2002 reform have now the capacity to propose to the Commission for the purpose of legal implementation technical rules that have been previously negotiated and agreed between the Member States concerned (example of the Celtic Sea measures promoted by Ireland, France and the United Kingdom and now enforced through CFP regulations).

A.6.3 As a response to regulatory incentives

The cod plan

Regulation (EC) No. 1342/2008 introduced a set of new management instruments that have encouraged the introduction of bottom-up, or at least nationally proposed and organised, approaches


to minimise cod catches (Art. 11 and 13 of Reg. (EC) No. 1342/2008). These initiatives have been driven by the penalties of not reacting which are punitive cuts in individual fishing effort allocations. Article 13 allows for buy-back of effort on the basis of taking measures that maintain cod catches annually below 1.5%. Under Article 11, individual vessels can be exempted from effort restrictions altogether by using highly selective gears or spatial avoidance measures that maintain cod catches below 1.5%. The way to achieve reductions in cod mortality is left open to the Member States and the industry, e.g. through the use of highly selective gear or implementing spatial/temporal modifications of fishing activity. As such, these articles are an innovative instrument following a new regional and fisheries-tailored ‘results-based’ management strategy.

Since the current plan’s implementation, several groups of vessels have been exempted from the effort restrictions under Art. 11. Some of these have achieved the low cod catches through the use of selective gear such as a sorting grids (selectivity of fishing gears particularly in Sweden), and others through limiting their operations to waters deeper than 200-300 m, which is outside the normal distribution of cod (avoidance of cod concentrations). (Kraak et al., 2013)

In 2009 and 2010 a number of Member States are reported to have use the effort buy-back provisions under Article 13, through adopting gear modifications or closures (STECF, 2011b). Ireland, the UK, Sweden and Denmark have all introduced spatial and temporal closures to reduce cod catches. In large parts of the closed areas, only vessels with selective gears are allowed to fish. The additional effort has proven to be a major incentive for the industry to adapt their operations or adopt selective gears. A good example is the Scottish Conservation Credits Scheme (CCS) is a co-management initiative that rewards the adoption of cod avoidance behaviours and reduced cod catch rates by allocating higher effort allocations for fishers signing up to the measures. The scheme has a compulsory element requiring all vessels to avoid Real Time Closures and an optional component comprising a schedule of alternative selective gears (see Section A.5, page 54) which attract varying degrees of extra effort allocations depending on the estimated reduction in cod catch.

Although the actual measures taken may not have delivered the expected reductions in cod fishing mortality (Kraak et al., 2013), they do illustrate that bottom-up development initiatives are possible (mainly gear configuration, closures) and that the technical ingenuity of fishermen can be focused into achieving selective fisheries when there is a driver to do so. It is also interesting to note that the unilateral technical measures adopted to meet the objectives of Art. 13 of the cod plan had to be included in the National legislations to be properly enforced showing that a prescriptive approach can still be needed but in this case, it is shifted from the EU Council and European Parliament to the Member States.

The discard ban in the Skagerrak

A current EU proposal to implement a discard ban in the Skagerrak is another example where Member States have some autonomy to develop their own technical solutions for their vessels to be authorised to exploit the fisheries in the area.

The Commission proposal (COM (2012) 471) sets a baseline gear for demersal trawls, Danish seine, beam trawls or similar towed nets having a mesh size of at least 120 mm but allows the use of other gears that can be demonstrated to have equivalent selectivity characteristics, subject to scientific validation.

The Commission’s approach is interesting and quite simple as it defines only a selectivity baseline and leaves Member States to develop alternative gears freely.


A.7 Enforcement and compliance with technical measures

Effective Monitoring, Control and Enforcement (MCS) are critical in ensuring that the intended objectives of technical measures are realised. The following text is based on relevant literature and interviews with stakeholders, Member State control authorities, DG MARE services, and the European Fisheries Control Agency (EFCA). They address the following issues:

• The principal drivers of compliance and non-compliance with technical measures;

• The different control means for detecting technical measures infringements, and issues making MCS of technical measures problematic;

• The costs of MCS in relation to technical measures; and

• Infringements of technical measures.

A.7.1 Drivers of compliance and non-compliance

Compliance

Compliance may be increased when fishers are integrally involved in decision-making processes related to the introduction of new technical measures regulations, or amendments to existing ones. There is a strong perception across most Member States that such involvement has historically been rather weak with a top-down approach to fisheries management. The formation of the RACs has improved the situation, and Scottish and Irish private sector stakeholders for example reported positively about their engagement with the NSRAC and the NWWRAC respectively.

Compliance may also be more likely when there is high acceptability of technical measures by fishers themselves, but also by control authorities (see later discussion in Part B). This largely results when fishers are involved in the decision-making process. Acceptability is also strongly determined by the perceived conservation benefits of technical measures, and how successful they are likely to be in achieving their desired objectives. Most fishermen’s’ organisations, Member State administrations and control authorities recognise the need for technical measures given their ability to form a useful part of the ‘fisheries management toolkit’ and to support objectives that other management measures (such as input or output controls) may be less effective at achieving. However, they are highly critical of catch composition rules and the resulting required legal obligation to discard fish. Control agencies tend to view some regulations (e.g. the ban on high-grading) as having low acceptability and enforceability, reflecting the fact that while overall technical measures may be generally supported, a specific technical measure may have low acceptability if it is effectively unenforceable.

Market-based incentives to comply with technical measures regulations may provide an incentive for compliance. Eco-labelling schemes such as the Marine Stewardship Council (MSC) certification, which assesses fisheries against a set of principles and criteria related to the status of stocks, ecosystems, and fisheries management conditions, can result in an incentive for fishermen to comply with existing regulations because any infringements can jeopardise the ability of the fishery to meet the assessment criteria and retain certification following audits. In some cases these market-based mechanisms may also encourage the use/introduction of new technical measures, e.g. in the Dutch plaice fishery, where closed areas were introduced during the assessment process to avoid a WWF-objection to the certification.

Compliance is likely to be high where fishermen perceive that there is a strong likelihood of detection of infringements. For this to be the case, the level of MCS resources (financial and levels of human capacity) must be sufficient for fishermen to be regularly inspected (see text below on costs of MCS), and for inspectors to be sufficiently skilled to detect infringements. Thus retention of trained fisheries


inspectors within control authorities is important, as is the recruitment and training of new inspectors over time (hence the strong focus of the EFCA on the training of fisheries inspectors). However, a perception of likely detection when infringing is not enough on its own to ensure compliance, as fishers breaking regulations need also to be convinced that if they are caught infringing then the resulting sanctions imposed are sufficient to provide an incentive to comply. Previous studies (e.g. Oceanic Développement et al 200052) and reports, e.g. Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2005 and 200653, highlight that the type (e.g. administrative or criminal) and level of sanctions differ widely across Member States, based on different legal systems. It is also the case the percentage of infringements detected leading to successful imposition of sanctions also varies across Member States, and on average only three-quarters of serious infringements detected result in the imposition of sanctions54.

It should be noted that the new (penalty) ‘points system’ in Annex 30 of the implementing rules of the Control Regulation allocates points (rather like points on a driving licence) to skippers and owners for different types of offences including those related to technical measures, e.g. taking on board undersized fish, fishing in closed areas/seasons, and use of prohibited gear. The system is an attempt to ensure a level playing field across Member States and may in the future help to increase compliance.

Peer pressure was also recognised in some Member States (e.g. England) as a factor leading to compliance. However, as suggested by some earlier studies (e.g. Oceanic Développement et al., 200055) this may be more the case in small-scale inshore fisheries, than in larger offshore fisheries.

Finally, it can be observed that in some Member States, compliance is strengthened by an increasing emphasis on ‘downstream’ inspections, in some cases supported by additional legislation. In the UK for example, more-effective enforcement has been possible since the ‘Registration of Buyers and Sellers Act’ in 2005 which has meant that it is far more difficult for fishers to land undersized fish illegally. Scottish and Danish control authorities also both report that there is also an increasing emphasis on inspections of auctions and of processing companies, which can help to ensure compliance with minimum landings sizes.

Non-compliance

Stakeholder consultations completed during this evaluation provided a unanimous perception that the main driver of non-compliance is the short-term economic benefit that fishermen obtain from infringing the regulations. This is self-evident given that technical measures often lead to reductions in marketable catch: gear regulations directly reduce the presence of marketable sized fish in nets; area closures intended to protect spawning areas prevent fishermen from targeting high concentrations of large fish; and while in many Member States there is little market demand for small fish there is demand for undersized fish of some particular species (e.g. whelk and lobster in Ireland, sole in the Netherlands, scallops and bass in England, various species in Spain), which can be landed and sold by fishermen for economic gain.

A mismatch between catching opportunities and effort deployed in many Member State fisheries can also result in non-compliance given the impacts that overcapacity has on the profitability of the fleet as a whole; it is probably the case that the incentives to infringe may be greatest for vessels that are performing poorly economically. 52 Oceanic Developpement, Richard Banks Ltd, Megapesca, 2000. Cost benefit comparison of different control strategies. Final report, January 2000.

53 COM(2007) 448 final, and Brussels, 4 November 2008 COM(2008) 670 on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2005 and 2006 54 Op. cit. 55 Op. cit.


In some cases historical practice may result in non-compliance. For example consultations in England suggest that in some fleets inspected by English Control Authorities, ‘crew fish’ (i.e. fish retained by crew for personnel use) are not always compliant with minimum landing size regulations. Additionally some are beheaded, so their size cannot be measured in line with Reg. (EC) No. 850/98.

Some fishermen’s organisations suggest that non-compliance may also be the result of the complexity of the measures themselves coupled with a lack of awareness of the rules. Whether this is actually the case is open to question although there is no doubt that fisheries inspectors struggle to enforce the large number of technical rules both national and EU rules that apply.

Low acceptability, a lack of inclusion by fishermen in decision-making, and a perceived low risk of detection and low sanctions, may all contribute to non-compliance. Many fishermen’s organisations commented that lower acceptability than might otherwise be the case, is in part due to the poor scientific evidence and research and the lack of formal evaluations for many of the technical measures that have been introduced (additional information on research into technical measures is provide in section A.5 page 54).

A.7.2 Means of control

Differing effectiveness of control means to detect different types of technical measures infringements

A number of means of MCS are available to Member States in their efforts to create a deterrent to illegal fishing activity and to ensure compliance with technical measures regulations. The principal means of control include:

• Sea based patrols and inspections carried out either by dedicated fisheries patrol vessels (FPVs) or by marine patrol vessels (MPVs), i.e. Navy or Coastguard vessels undertaking fisheries duties in association with, or in addition to, their other activities (e.g. border control, policing of narcotics).

• Aerial-based surveillance, typically conducted as dedicated fisheries activities with air-time bought for the purpose, although as with marine surveillance activities, aerial surveillance of fishing vessels may be conducted in association with other duties/purposes.

• Land-based inspections, conducted by fisheries inspectors.

• Vessel Monitoring Systems (VMS), monitored at Fisheries Monitoring Centres (FMCs) which electronically record the position and speed of fishing vessels (typically only vessels over 12m).

• Administrative cross checks, e.g. checking logbook information on reported areas fished against VMS data.

In addition to these means, some national administrations also use other sophisticated deterrent and detection systems, most notably forensic analysis of accounts, and checks on landings and at point of first sale (i.e. factory/processor inspections).

A summary of the inspection means (number of inspectors and hardware deployed) by Member State is shown in Table 23 in the Appendices. While it is not possible from the data available to determine the exact means deployed for enforcement of technical measures as opposed to other fisheries regulations, it is possible, based on our consultations in selected Member States and previous


studies, to infer that different control means have differing abilities to detect possible infringements of technical measures regulations:

• Technical measures infringements related to use of illegal fishing gear can most easily be detected using sea-based inspections.

• Minimum landing sizes and catch composition rules are most easily detected on land, with sea-based inspections also being of use although detecting infringements can be difficult when fish holds are very full. Cross checks are also an effective way of checking on catch composition infringements, and some Member States also conduct inspections of auctions and processing plants to check on minimum landing sizes (potentially with the ability using traceability systems to tie any undersized catch back to individual vessels).

• Given the number of fishing vessel trips and limited sea-based and aerial-based inspection means to fully observe them, VMS is perhaps the most effective means of detecting possible infringements with time/area closures and vulnerable marine ecosystems, however, in most Member States VMS only acts as an aid to detecting infringements, with sea and aerial-based inspections means then being needed to conduct more detailed inspections.

• Protected species can generally only be detected by sea-based inspections.

Issues making MCS of technical measures problematic

There are a number of issues which the stakeholder consultations revealed as important in making enforcement of technical measures problematic, or which can lead to differences in approaches within different Member States to enforcement.

Of perhaps the greatest concern is the difficulty of enforcing catch composition rules for vessels carrying multiple gears with different mesh sizes on the same trip (primarily vessels using fixed nets, but also some active gears), as it is not possible to determine which gear was used to catch which species. This issue was raised as important in all the Member States in which we completed consultations. Additionally English control authorities commented on the difficulty of enforcing MLS for species for which the MLS varies between areas (e.g. mackerel).

A second key area of concern raised by many Member State administrations and control authorities is the extent to which it is possible in some cases to interpret technical measures regulations differently, and/or a lack of clarity in some of the regulations. Some specific examples provided during the consultations are included in the Box below (despite all the examples provided in the Box, the main difficulties of enforcement of technical measures are probably at least as much related to ‘standards of evidence’ as to the technical measures regulations themselves and any lack of clarity or different interpretations between Member States).


Box 1: Issues of interpretation or lack of clarity in regulations, potentially impacting on compliance

• Technical measures in Regulation (EC) No. 2056/2001 have proved difficult to control due to differences in interpretation of definitions between Member States, e.g. the definition of fisheries and required mesh sizes and the definition of ‘sewn in’ (Danish control authorities, pers. comm).

• Interpretation as to whether knots should be included when measuring mesh size as per Reg. (EEC) No 2108/84 (MAGRAMA, pers. comm).

• The UK permits the queen scallop fishery in Area VIa using 80mm mesh (under Council Regulation (EC) No. 850/98) but the Irish Authorities don’t as the transitional/additional measures only permit the use of 120mm as a minimum mesh (SFPA, pers. comm).

• Different interpretations of the Article 6 of Council Regulation (EC) No. 850/98, notably 6.1 and 6.3. Flemish authorities considered that the codend used by some Belgian fishers in their beam trawls were consistent with the regulation, while British controllers filed infringement reports for the same gear.

• Different interpretations concerning the rules of catch separation in the vessel cold storage at EU level. Some national Control Authorities considering that there is the need for two complete separate storages to apply such rules, while the Flemish Authorities consider that storing boxes on two sides of the same storage is sufficient if well labelled (Flemish control authorities, pers. comm).

• Different views over trigger levels for real time closures due to translation of regulations, i.e. is it when a trigger level is reached for one species as suggested by the UK, or when reached for more than one species which is the view of France (EFCA, pers. comm).

• Different interpretations of ‘attachments’ e.g. chafers, selveges, extension pieces (untapered sections) or other fittings on a trawl (EFCA, pers. comm.).

• Different interpretations over what constitutes an obstruction of the mesh or fishing gear (Article 16 of Regulation (EC) No. 850/98) (MMO, pers. comm.).

• The word ‘approximately’ is found in regulations, e.g. Article 5 of Regulation (EC) No. 2056/2001 which states ‘of which the bars of the mesh are not approximately equal length’. Interpretation of ‘approximately’ is subjective.

• Apparent translation errors: e.g. Art. 7.2 a) of Reg. (EC) No. 850/98 mention “top sheet” in English and “aile supérieure” in French, the latter having no technical meaning.

• Interpretations over catch composition rules. The UK considers that they should be met at all times after the first 24 hours at sea while other Member States only control catch composition at the time of landing (MMO, pers. comm.).

Consultations with stakeholders also revealed a number of other interesting points and issues related to the ease of enforcement of technical measures regulations, which potentially impact on compliance.

Although in some cases e.g. Denmark, VMS data on its own has been sufficient to result in sanctions being imposed, given the comments made above about VMS typically only being an aid to


enforcement and not sufficient on its own to bring about prosecutions, this typically requires follow-up at sea or aerial surveillance as it is necessary to apprehend an offender flagrante delicto. Where area closures are very remote (e.g. Rockall) this makes follow-up inspections at sea or by air difficult, and may diminish the effectiveness of the closed area due to surveillance restrictions.

As noted above, sea-based inspection means are the main method of detecting gear infringements. However, even with sufficient sea-based assets deployed and inspections completed, it can be difficult to control some types of gear infringements, e.g. addition of blinders or bottomside chafers in active gears, lengths of fixed nets, hanging ratios, depth set, and soak times in passive gears. This problem may be reduced in the future where control authorities move to ‘fully documented fisheries’ through the use of Remote Electronic Monitoring (REM). Other recent developments have included the use of “soft law” whereby fishers have their gear inspected on land (e.g. in England) and tagged, so that when vessels are subsequently inspected at sea time is saved with inspectors just checking the tags.

Member State control authorities in Netherlands, and Spain report that declining MCS resources available make it increasingly difficult to effectively enforce technical measures regulations. The data on MCS costs provided in the next section is not detailed enough to determine the extent to which this may be valid in particular Member States or not. We note however that declining budgets do not themselves necessarily mean that MCS is weakened, especially with the shift towards comprehensive use of risk assessment in planning MCS activities (as required in the Council Regulation (EC) No. 1224/2009, see preamble paragraphs 8 and 11, Article 5 (2), Article 41 (1), Article 46 (2), etc), increasing collaboration in individual Member States between institutions involved MCS (often now formalised in Memorandums of Understanding), and the increasing use of Joint Deployment Plans between Member States as supported by the EFCA.

Control authorities in Scotland and Netherlands have dedicated fisheries patrol vessels (FPVs), while others (e.g. England) use/contract Navy marine patrol vessels (MPVs) to undertake fisheries inspection patrols on their behalf. These different modus operandi may themselves have an impact on the ability to effectively control fisheries activities; while not empirically demonstrated, it may be hypothesized that dedicated FPVs with dedicated fisheries inspection staff may offer higher quality enforcement due to higher levels of staff skills and prioritisation of fisheries issues, rather than fisheries patrols enforcing fisheries regulations amongst a variety of other activities (EFCA, pers. comm).

Finally, it can be observed that enforceability of technical measures is not aided by the fact that there is little discussion or consideration of control when developing EU legislation. Technical measures in particular are usually developed in isolation with no regard for how they can be controlled.

Many of the above difficulties of enforcement, impacting on compliance levels, are well known to the Commission and Member State control authorities and have been discussed at length. Changes/improvements would require the adoption of a Council of EU/Parliament regulation, which would be time consuming, and represents a lack of flexibility in being able to respond to weaknesses in the regulatory framework.

A.7.3 Costs of MCS in relation to technical measures

Obtaining MCS costs specific to enforcement of technical measures is problematic, given that (i) for some Member States (e.g. Spain and France), control costs are not disaggregated by area (e.g. Mediterranean and Atlantic), and (ii) all control means used to enforce technical measures are also used in relation to enforcement of other fisheries regulations and not specifically related to technical measures.


It is also extremely difficult due to methodological issues to obtain detailed and comparative costs of MCS across Member States in an evaluation of this nature covering a wide range of issues related to technical measures and not focussed exclusively on MCS of technical measures. Difficulties in sourcing current comparable data include: the reluctance by some Member States to provide data (a problem encountered by the consultants during this evaluation); and where data are provided inconsistencies in whether asset costs include deprecation; whether costs are broken down by inspection means; whether staff costs are included; and if so whether they are on a full-time or part-time employment basis.

For these reasons, it has not been possible as part of this evaluation to provide figures in selected Member States on costs related specifically to technical measures. Previous studies (e.g. Oceanic Développement 200056; An unpublished Impact Assessment of a Proposal to Reform and Modernise the Control System applicable to the Common Fisheries Policy57) have however explored MCS costs in detail, and suggest a total MCS cost for all Member States in the order of EUR 320 million in 2007. This cost was estimated to be divided between different deployment methods as follows: 25 % land, 57% sea, 6% air, 2%, VMS/FMCs, and 10% administration. Some Member States, e.g. Ireland, Denmark and the UK, have shifted their focus from sea-based to land-based in recent years.

Table 20: Total Control costs (EUR millions) for selected Member States, 200858

Land Sea Air

Fisheries Monitoring Centre / VMS Administration

Total

UK 7.0 22.3 4.9 3.5 3.8 41.5 France 2.3 17.1 1.9 0.6 1.8 23.7 Ireland 10.7 36.1 4.4 - 0.4 51.6 Denmark 8.8 6.8 - 1.1 6.4 23.1 Spain 2.8 19.1 - 0.3 0.6 22.8 Total 31.6 101.4 11.2 5.5 13.0 162.7 Average 6.32 20.28 2.24 1.1 2.6 32.54 Source: unpublished report by MRAG et al., 2008. Data for 2007 (operational and depreciated asset cost). Selected data collected during this evaluation suggest more current costs in 2013 as follows: France EUR 34 million; England EUR 15 million, Scotland EUR 25 million,

Unit costs for sea and air surveillance obviously differ enormously between Member States based on the size of the assets being used and their running costs, where surveillance takes place (e.g. inshore or offshore), and whether assets are dedicated for fisheries surveillance activities, but figures in the range of EUR 2 500 – 4 250/hour for aerial surveillance (e.g. for a Dash 8 aircraft), and EUR 10 000 - 18 000/day for offshore FPVs/MPVs are not untypical (pers. comms. this evaluation, MRAG et al., 2008, MRAG et al., 200459).

56 Op. cit. 57 MRAG Ltd., Oceanic Développement, Poseidon Aquatic Resource Management Ltd, Lamans s.a., Institute of European studies and IFM (2008). Unpublished report. ‘Impact Assessment of a Proposal to Reform and Modernise the Control System applicable to the Common Fisheries Policy’ 58 Data is most recent available (for the calendar year 2007, except for France which is 2005) and received via questionnaires presented to member states 59 MRAG Ltd., Oceanic Développement, Poseidon Aquatic Resource Management Ltd, Lamans s.a., Deloitte and Touche (2004). Study of the Impact and Feasibility of Setting up a Community Fisheries Control Agency


A.8 Infringements of technical measures

Some selected data on infringements of technical measures regulations have been collected as part of this evaluation, and are presented in the Appendices. The Appendices also show data from the Communication From The Commission To The Council And The European Parliament which was published in 2008 (the last one providing data for 2006) summarising the Member State reports on serious infringements. This and other Communications were the result of Council Regulation (EC) n°1447/1999 which introduced the obligation for the Member States to report yearly to the Commission on how many “serious” infringements were detected, and on the sanctions imposed. The 2008 Communication is the last one to have been published by the EU.

These data, given their different presentations, do not allow for a detailed and comprehensive comparative assessment for the most recent years of either the detection means for different technical measures infringements, or the importance of technical measures compared to other types of infringements. However, taken together, the data in the Appendixes on infringements highlight a number of important findings:

• That there are no clear trends in infringements levels for technical measures over recent

years;

• That technical measures infringements represent a considerable percentage of total infringements recorded (e.g. over 40% of all infringements in France of 2010-2012), close of 50% of ‘D’ offences for all Member States in 2006). It should also be noted that the data on infringement type may hide additional technical measures infringements. For example logbook infringements may not be classified as a technical measures infringement but might be motivated by catch composition rules;

• That infringements of all types of technical measures take place in most Member States, but that offences in Denmark relate most frequently to catch composition rules, offences in France mostly commonly to offence D4 (directed fishing for, or keeping on board of, a species subject to a prohibition of fishing which is not necessarily related to infringement to technical measures), and offences in Ireland mostly to gear and minimum landing sizes infringements (for whelk);

• For the ‘D’ type offences, offences D1 (Using or keeping on board prohibited fishing gear), D2 (Using prohibited fishing methods) and D5 (Unauthorised fishing) are most likely to be detected by sea-based patrol means (as shown by data provided by France) with 78% of infringements for code D1 detected at sea by France over 2010-2012, 85% of D2, and 92% of D5.

A.9 Concluding remarks

There are many different drivers of non-compliance, but the main ones are economic and acceptability. It is surprising therefore that so little research and evaluation has underpinned the introduction of technical measures regulations, as such research/evaluation could have helped both to justify/demonstrate the need for technical measures thereby increasing their acceptability and compliance, while also potentially exploring the economic impacts of new technical measures to be introduced. A stronger focus on economic and social impacts, could also have served to identify technical measures with the potential to achieve conservation and economic improvements at the same time, thereby increasing compliance levels by removing the economic incentive to infringe. For example some recent work on the use of the pulse trawls in the Netherlands have demonstrated no impact on sole catches but a 60% reduction in fuel costs (IMARES, pers. comm.). Given the


importance of economics as a driver of non-compliance, in may be sensible to put more focus on economic incentives to improve compliance.

It is certainly the case that many different technical measures are difficult to enforce, either due to the limited ability of different surveillance methods to detect infringements, different interpretations of legislation and the complex of the regulations themselves. However it should also be noted that regulations must be specific enough about the particular gears being regulated if the resulting technical measures introduced are to have the selectivity impacts intended. It is also noteworthy that in considering the introduction of different technical measures over the years, there has been little explicit consideration and documentation of the potential ease of enforcement of many of the regulations, and enforcement of the legal architecture surrounding technical measures is thus inherently problematic, and more so than might have been the case with greater consideration of MCS issues as technical measures regulations were developed. Infringement data show that in most Member States a range of technical measures infringements are committed, and that such infringements may constitute a significant proportion of total infringements. Given the relative ease/difficulty of detecting different infringements through different inspection means, this argues for the need for all types of inspection means, and their associated costs, to be deployed in support of the enforcement of technical measures regulations. However, the use of risk bases assessments, joint deployment plans, and fully documented fisheries, all provide ways of improving the MCS of technical measures.

Finally by way of conclusion, the following table highlights some of the advantages and disadvantages of different types of control means, and their effectiveness.


Table 21: Summary table of advantages and disadvantages of different control means in enforcing technical measures regulations.

Means Advantages Disadvantages

Sea patrols

Best way to control and enforce gear configuration and mesh size regulations that provides required burden of proof to sanction offenders. Also possible to detect catch composition, closed areas, protected species and VMEs. Can be a high deterrent

Expensive. Weather limitations. As it is not possible to inspect a large number of fishing trips, the perceived risk of detection can be low. It is only an effective deterrent if the fishing vessels are not aware of the MPVs movements and location

Land-based inspections

Cheap and effective at controlling MLS and catch composition rules

Limited/no ability to detect many technical measures infringements, e.g. gear and protected species

Aerial surveillance

Good for policing area closures and VMEs in particular

Costly. May not provide sufficient evidence on its own for successful prosecution. Weather and daylight limitations Limited/no ability to detect many technical measures infringements, e.g. gear, landings sizes and protected species

Cross checks

Cheap and good for detecting catch composition infringements

Often an aid to prosecution only. Limited/no ability to detect gear infringements, protected species

VMS

VMS data can be used alone to monitor closed areas and VMEs. Cost effective. VMS data provides valuable dataset for risk-assessment based approach to control and enforcement. In some Member States VMS covers most of the fleet

Typically only applies to vessels greater than 12 metres. Usually only an aid to prosecution and does not provide sufficient information on its own for sanctions. VMS may not cover a significant % of vessel numbers in some countries Limited/no ability to detect many technical measures infringements, e.g. gear, landings sizes and protected species

Source: Consultants compilation.


Part B Retrospective (ex-post) evaluation of the current EU technical measures framework

B.1 Relevance

B.1.1 To what extent the objectives of technical measures (Reg. (EC) No. 850/98 and associated regulations) remain relevant to the original needs, problems and issues?

B.1.1.1 Understanding of the question

Retrospectively, relevance relates to whether the objectives of an intervention or its design are still appropriate given changed circumstances. In the context of this evaluation, it appears appropriate to examine separately these two components (i.e. objectives and design) separately by considering the two following sub-questions:

• The relevance of the objectives of the current technical measures: do technical measures themselves remain relevant to manage the stocks while minimising negative impacts on the broader ecosystem?

• The relevance of the design of the intervention: do the current mechanisms for designing the current technical measures remain relevant to manage the stocks while minimising negative impacts on the broader ecosystem?

B.1.1.2 Methods

The information required to answer this evaluation question has been obtained through:

• A review of the scientific literature to determine to what extent technical measures can support the objectives of the CFP and relevant environmental legislation;

• A review of the history of technical measures in EU fisheries management (section A.1.1 page 3);

• A review of the current legal architecture for designing technical measures (section A.1.3 page 9);

• A review of the evolution of the needs, problems and issues considered under the 2002 CFP and under the reformed CFP (COM (2011) 425).

Evaluation of the relevance of the objectives and of the design of the intervention is based on the comparison between the existing technical measures and the perceived current and future requirements of the CFP.

B.1.1.3 Criteria and indicators

None identified. Expert judgment


B.1.1.4 Answer to the evaluation question

Relevance of objectives of technical measures

Fisheries management aims to regulate the amount and composition of fish species caught to ensure ongoing reproduction potential of commercially exploited stocks while minimising negative impacts on the broader ecosystem. This has traditionally focused on regulating two aspects:

• The exploitation rate, i.e. the proportion of fish that are being removed from the population. The main tools utilised are limitations on the total quantities that can be caught through setting of landing limits (TAC & quota), or limitations on the amount of effort that can be deployed through control of fleets capacity (global or by fishery through fishing authorisations) and/or on the amount of time a vessel can spend at sea (limits on effort).

• The exploitation pattern, i.e. the proportion at each age of fish that are being removed from the population. The exploitation pattern is regulated using instruments which define where, when and how a fishing enterprise can exploit and interacts with marine resources and the wider marine ecosystem.

In terms of fishing pressure, technical measures can affect both exploitation patterns and the overall exploitation rate through the deployment of species selective gears which avoid the capture of specific species in a given gear. Therefore, and in the context of the overarching objectives of the new CFP, technical measures can contribute to the attainment of Fmsy objectives through both mechanisms.

Concerning impacts of fishing on the environment, technical measures, which define how, where and when a fishing vessel can deploy its gears, include the necessary tools to regulate the interactions between fishing gears and the broader ecosystem.

Consequently, it can be concluded that the objectives of technical measures remain relevant to the original and current needs, problems and issues. Art.8 of the new reformed CFP (COM (2011) 425) does not mention any different technical measures than those utilised currently.

Relevance of the design of the intervention

As discussed in section A.1.1 of this report, the first technical measures regulation for EU fisheries in the Northeast Atlantic and the North Sea was introduced in 1980 under Regulation (EEC) No. 2527/80 prior to agreement of the first Common Fisheries Policy (CFP) in 1983. Technical measures have been subsequently amended many times mostly after recognition there was a need to consolidate the previous regulations and eliminate inconsistencies created by the introduction of amendments in the technical measures regulations and/or related instruments (in particular, the annual fishing opportunities regulations). Whilst the volume and the nature of the rules has steadily increased over the period leading to the current Regulation (EC) No. 850/98, the legal architecture has not changed significantly with the prime responsibility for adopting technical measures resting with the Council and few delegations given to Member States and the Commission under certain conditions.

In the early 80’s, the management of the CFP was centralised, justifying a top-down prescriptive approach to regulating technical measures. This is motivated partly by the need for a level playing field across EU fisheries. No alternative governance structure for regulating technical measures has been available to the EU.

Meanwhile, in the context of EU fisheries management, the reformed CFP basic regulation has introduced some substantial changes which are of interest for this evaluation:


• Regionalisation of the decision-making process: the 2002 reform created the Regional Advisory Committees to provide greater stakeholder involvement in fisheries management at regional level. The first RAC (North Sea RAC) was formally created in 2004 and others followed. Although the extent to which the RACs objectives have been met has not been fully evaluated, it can be estimated that at least three RACs active in the North Atlantic and in the North Sea60 are now in a capacity to provide valuable stakeholders inputs into the decision making process.

• The development of multiannual plans (recovery or management plans) to maintain stocks within safe biological limits. Multiannual plans contain harvesting rules laying down annual catch and/or fishing effort limits and provide for other specific management measures, including technical measures.

The proposed draft reformed CFP (COM (2011) 425) introduces further substantial changes in governance:

• A further regionalisation of the decision-making process with the creation of revised advisory councils (Art. 52 of the draft CFP regulation). The purpose of regionalisation is twofold: moving away from micromanagement at Union level, and ensuring that rules are adapted to the specificities of each fishery and sea area (“region”).

• A desired shift to result-based management in particular for the technical measures (Art. 21 of the draft CFP regulation). The rationale is that the Member States are best placed to gear technical measures to meet conservation objectives specific to regional specificities of fisheries.

Following the 2002 reform of the CFP, it was apparent that technical measures were not sufficiently flexible to adapt or to incorporate proposals of the RACs that better reflected the specificities of individual fisheries. Evidence shows that additional technical measures were not adopted through the overarching regulation (Reg 850/98) but rather through the annual fishing opportunity regulations or by Commission regulations on the basis of current Art. 45 of Reg. (EC) No. 850/98 (emergency measures, i.e. as a curative instrument rather than as a preventive tool). This multiplication of legal acts further complicated technical measures and contributed to the building up of regulations. The Commission described this as a “a legislative labyrinth; a mass of overlapping, and sometimes contradictory provisions, allowing multiple derogations and exceptions, scattered throughout a range of very different legal texts” (EC, 2009). The provisions of the Lisbon Treaty (TFEU) have introduced additional complexity (see section A.1.3), that has exacerbated the situation.

In conclusion, it can be evaluated that the current mechanisms for regulating technical measures are no longer relevant due to changing circumstances. Technical measures need to be more adaptive, flexible and tailored to the fisheries they intend to regulate.

60 The North Sea RAC, the North Western Waters RAC and the Pelagic RAC


B.2 Effectiveness

Technical measures have undoubted benefits. However, intrinsically (e.g. selectivity ogives of codends) or through the mechanisms they are implemented by the legislation, technical measures have not achieved the results from those expected based on ex ante evaluations. This part of the evaluation endeavors to find factual evidence of success or failure of technical measures in terms of sustainable exploitation of exploited commercial stocks or impacts on the wider ecosystem.

Given the different approaches and specific objectives of each type of technical measure, the evaluation of effectiveness is split into 4 different but interrelated evaluation questions.

B.2.1 Are technical measures focused on the structure of fishing gears effective in protecting juveniles and minimizing by-catches of non-targeted commercial species?


Reg. (EC) No. 850/98 primarily aims to regulate the structure of fishing gears, limit the number and size of fishing gears onboard, the methods used and the composition of catches that may be retained onboard while fishing with such gear. The specific objective of the measures is to avoid catches of juvenile species or non-targeted species, i.e. fishing gears are size and species selective.

Without prejudice to additional technical measures implemented under the framework of recovery plans or bilateral agreements, Reg. (EC) No.850/98 prescribes that fishing vessels may catch whatever species they want with certain mesh sizes (100 mm in region 1 and 2, 90 mm in the Skagerrak & Kattegat, 70 mm in region 3 or 65 mm in region 4 & 5). However, for some particular important commercial fish species of naturally small size (e.g. sole, Nephrops, small pelagic species such as sprat or herring) that cannot be caught with these ‘standard’ mesh sizes, the use of smaller mesh sizes is allowed by the legislation with the constraint of complying with catch composition rules. The catch composition rule has the prime objective of differentiating the fisheries and ensuring that fishing vessels target specific species under certain conditions. Fish below the minimum landing sizes or in excess of the percentages set out by the catch composition rules may not be retained onboard and must be discarded at sea prior to the landing (Art. 15 and Art. 19 of Reg. (EC) No. 850/98). These two articles introduce two legal obligations to discard in the legislation.

The effectiveness of technical measures focusing on the characteristics of fishing gears is considered on the basis of the performances of such measures in limiting catches of juveniles or catches of unwanted commercial species. The effectiveness of technical measures on discarding can be approached through two main indicators:

• The proportion of marine species discarded because they are below the desired length at first capture as a consequence of mismatches between gear selectivity performances and size of marine species caught; or

• Fish species that are discarded by small-meshed fishing gears as a consequence of the catch composition rules.

B.2.1.2 Methods

Information on the selective performances of the most common fishing gears (towed gears and passive gears) has been extracted from the relevant scientific and technical literature (see references). A number of studies could be found measuring selectivity properties of fishing gears


(50% retention length or L50, selection range) either through field experiments or through simulations (FEMNET / PRESEMO models).

Discards data published as an annex to a STECF evaluation of effort regimes (STECF, 2012b) focusing of discards of fleets regulated by an effort regime (mostly under the framework of the cod recovery plan - Regulation (EC) No.1342/2008) were used as a reference for levels of discarding. Complementary or additional data on discards, and in particular their distribution between undersized fish below MLS and marketable fish of length greater than MLS have been obtained directly from the scientific institutes of Member States. For some Member States, discards data are detailed in annual publications (i.e. Denmark, Netherlands and France). For other Member States not publishing discards reports on a regular basis, information on discards has been supplied specifically for the purpose of this evaluation (i.e. UK-Scotland and Ireland).

The main methodological limitations found include:

Concerning selectivity performances of fishing gears (L50 and other indicators), indicators identified in the literature relate to experiments carried under very precise experimental conditions. As gear selectivity varies according to a number of parameters (inter alia rigging of the trawl, volume of catches in the codend, twine characteristics), the indicators from experimental research do not necessarily reflect selectivity of commercial gears.

Although the implementation of DCR and DCF has considerably increased the volume of data available, there are still limited availability and reliability of discard information for some species and from some countries. In addition, care is required in the use of these data in drawing firm conclusions about catch composition as the procedure used to raise discards sample data by different scientific bodies can be different.

Data do not identify the reasons for discarding. Discard may arise for several reasons:

• Fish species are below the Minimum Landing Size

• Fish species are caught in excess of the catch composition rules associated with use of certain small mesh-size gears

• Fish species caught in excess of quotas

• Fish species caught and discarded because better quality or more valuable fish have been caught later on a trip (referred to as highgrading)

The technical measures regulation is directly at the origin of the first two reasons for discarding. The third reason for discarding is mainly a consequence of the quota management systems of individual Member States. It would seem logical to assume that fishermen should not be authorised to go to sea by their National authorities without adequate quota available to match their likely catch composition. However, technical measures and avoidance measures have the potential to limit such over-quota species. The fourth reason, highgrading61, relates to a commercial strategy and is only loosely connected with catch composition rules.

As a consequence, it is not always possible to establish a direct relationship between technical measures and discarding. When discards concern fish species under the MLS, the relationship is clear. However, when discards concern marketable species, the reason for discarding can be attributable to a number of reasons not all directly linked to technical measures.

61 Highgrading was a lawful practice in most EU fisheries until it has been forbidden as from 2009 through the TAC & quota Regulation. Highgrading prohibition is now in Art. 19a of Reg. (EC) No.850/98).



Criteria Indicators

Fishing gears should be size-selective Comparison L50 / MLS / Length at first maturity for legal gears (section A.4.1 page 25) Proportion of fish discarded because they are below MLS specified in the legislation (section A.4.6 page 40)

Fishing gears should be species-selective Proportion of marketable fish species discarded because they are in excess of the percentages set out by the catch composition rule specified in the legislation (section A.4.6 page 40)


According to information detailed in section A.4.1, it is evident that minimum mesh sizes set out by the legislation may be appropriate for some target species but not for other species caught during the same fishing operations. Whilst some fishing operations can target a single stock (small pelagic fisheries, some demersal fishery like the saithe fishery in the North Sea), the majority of EU fisheries using towed gears are mixed fisheries targeting a specific range of species which catch a range of other species in conjunction. These other species can be equally important from the fishermen's perspective as a means of increasing the landed value of their catches. Whilst the selectivity patterns of the legal gear may be appropriate for one of the target species, it may be not for other species. The most emblematic case is probably the beam trawl flatfish fishery in the North Sea with retention properties of legal mesh sizes that are more or less appropriate for sole, but not for the main associated species - plaice. The legal 80 mm mesh size gear can retain significant proportions of plaice under the minimum landing size. If the mesh size was to be increased for better protection of juvenile plaices, losses of sole catches would significantly reduce the marketable value of landings in this fishery.

For some types of legal gears, catches of undersized species are very likely. For example, the retention patterns of a 100 mm trawl for whitefish gives a L50 close to the minimum landing size for the three main species targeted: cod, haddock and whiting. However, the L50 indicator means that a certain (lower than 50%) percentage of fish under this size may be still retained. The enlargement of the minimum mesh size to 120 mm reduces the risk of catching undersized whitefish, but as it can be seen from the retention properties of this gear, will result in large proportions of marketable whiting being lost when compared to a 100 mm mesh size trawl.

Concerning discards, although datasets examined cover only a limited period of time, some discarding patterns can be observed (see section A.4.6 page 40 for detailed information).

For sole and plaice, it seems rather obvious that most discards are the consequence of a mismatch between legal gear selectivity and MLS as discarded fish are in great majority undersized fish. The North Sea flatfish fishery is an emblematic example of mixed fishery for which the legal gear may be effective to support a relevant exploitation pattern of one species (sole) but proves to be inadequate for other species caught during the same fishing operations (plaice, whitefish), The same applies for nephrops in different fisheries (North Sea, Celtic Sea, Bay of Biscay) where the legal gear is not effective at avoiding catches of undersized Nephrops or species such as whiting, haddock and cod.


For the Bay of Biscay fishery, the legal gears used to target Nephrops catch also significant quantities of undersized hakes that have to be discarded.

In some fisheries, the mismatch between selectivity performances of legal gears and MLS clearly explain the discarding patterns (e.g. TR2 trawls in the North Sea or Irish Sea). For these fleet segments subject to compliance with catch composition rules, discarding of marketable species can be a consequence of catches of certain species in excess of permitted percentage or lack of quota. For example the size distribution of cod discarded by the Danish 120 mm trawl fleet in the North Sea or TR1 trawlers in the North Sea and West of Scotland, contains a balanced proportion of marketable and undersized cod suggesting that quota issues also trigger whitefish discarding in addition to the compulsory discard of undersized cod. For the French Nephrops fleet operating in the Celtic Sea, discards of demersal species can be attributed to compliance with the catch composition rule as it could be verified in that case that quotas were not exhausted. The data available indicates that the most prevalent species to be discarded is whiting (incl. a high proportion of marketable fish) which has a lower market value than other whitefish species followed by haddock and cod,

Data available for certain fishing gears (passive gears, pelagic trawling) suggest that discarding by the fleet segments concerned is less of a problem with much fewer, if any, regulated species discarded.

Although this is not quantifiable, it is apparent that compliance with current technical measures regulating towed demersal gears induces obligatory discarding of both undersized and marketable fish species as a consequence of MLS and catch composition rules respectively. Discarding of marketable fish as a consequence of exhausted fishing opportunities probably also plays a role in fisheries utilising legal gears. Catches of undersized fish occur primarily because of the mismatch between selectivity of legal gears and MLS and mainly in mixed fisheries.

In conclusion, it can be estimated that technical measures are not fully effective at limiting catches of undersized fish as demonstrated by the mismatch between selectivity patterns of legal gears and desired fish length, in particular in mixed demersal fisheries using towed gears. Technical measures are only partially effective in avoiding catches of unwanted commercial fish species in mixed fisheries using towed gears subject to compliance with catch composition rules. In both cases, this results in relatively high discard rates of both undersized and marketable fish species although in this later case, technical measures are not the only factor.

B.2.2 Are technical measures focused on time / area closures effective for stock conservation?


Limiting or prohibiting certain fishing activities during a given period in relevant areas is a frequently used technical measure. In the case of closures intended to protect individual species, the areas may correspond to spawning or nursery areas in which juveniles and/or adults aggregate and are therefore more vulnerable to fishing. In such cases the closure will typically apply to vessels using gears with the most impact on the species concerned. Other vessels may still be allowed in the area by way of derogation either because the gears they use have been demonstrated not to contribute significantly to the fishing mortality of the species being protected. Alternatively, the closure might apply to an area where the species to be protected forms a by-catch in a fishery for a separate species. In these circumstances, the closure will affect the fishery for the first species in order to reduce the by-catch of the protected species (example : Norway pout closure to avoid by-catches of juvenile gadoids).


Numerous permanent or seasonal closures for conservation purposes have been included in the technical measures regulations since the early 1980’s. The first closures focused on small pelagic species (1980), followed by the introduction of the plaice box in the North Sea (1989) and then in the early 2000 on protection of whitefish stocks (cod, haddock, hake) mostly as an additional tool under recovery plans. More recently, the concept of real-time closures has been introduced in the legislation as a dynamic tool to avoid concentrations of cod as and when they are detected by fishing vessels.

Evaluating the effectiveness of closures requires an identification of their effects on the conservation of the stock concerned (closures are often species-specific).

B.2.2.2 Methods

Evaluation of the effects of closures requires considerable amount of data on the stocks themselves and on the dynamic of fleets affected by the closures. This task is beyond the scope of this evaluation so evaluation is restricted here to existing studies.

Information on the effectiveness of closures has been drawn from relevant evaluations and reviews produced by scientific bodies. In 2007, the subgroup on management of stocks (SGMOS) of the STECF carried out a comprehensive evaluation of many of the existing closed areas (SGMO, 2007). For closures not reviewed by SGMOS (i.e. the Plaice Box), existing published evaluations have been located and analysed. The analysis has concentrated on the identification of the effects of the closures on the conservation of stocks and on their potential undesired effects.

When carrying out these evaluations, the scientific community encountered several methodological issues. One of these was in relation to the availability of data needed to evaluate the impact of the closures, especially closures encompassing relatively small areas. The second methodological issue was that most of the closures have not been assigned any objective or success criteria against which they could be evaluated.


Criteria Indicators

Closures should support conservation of stocks Proportion of juveniles / adults protected by the closures Impacts of displaced fleets on conservation Due to data deficiencies, none of these indicators could be quantified.


As a general consideration, STECF noted that in most cases, it is not possible to separate the possible effects of time / area closure from the effects of other management measures affecting the stocks and the fisheries concerned (landing limitations through TACs, effort limitations).

Nonetheless, some of the current closed area measures have been identified as likely to have had a beneficial impact on the conservation of stocks. This includes the Hake Box in the Bay of Biscay through improved selectivity of gears allowed in the area, the Plaice Box in the North Sea as the area


closed to large fishing vessels still enclose a majority of juvenile plaice, or the Mackerel Box South West of England as it provides an adequate protection for juveniles. For most existing other closed areas schemes, the recommendation was to maintain the closure on the justification that it reduces fishing mortality on already depleted stocks (e.g. cod and sandeel stocks).albeit to an unknown extent

The evaluations also noted that long-standing spatial/temporal closures (e.g. herring closures) that should be reviewed in view of changing patterns in stock distribution, and fishing patterns and intensity.

According to STCEF, closed areas can lead to adverse impacts as a consequence of effort displacement: When an area is temporarily closed to certain types of fishing activities for conservation purposes, the industry has often responded by:

• the fleets concerned redeploy fishing effort to other areas where fishing is permitted. Closures may have a beneficial impact but the effects on other parts of the stocks in areas where effort is displaced into are unknown. For example, ICES (2002) reported a displacement of demersal trawl effort to the North Channel and Clyde following the Irish Sea closure in 2000. Additionally, when effort is displaced to less prolific areas, fishing may result in longer tows, higher levels of discarding, more fuel and greater levels of habitat damages;

• the fleets concerned can switch to activities allowed under derogation in the closed area. In the case of the Irish Sea closure, some vessels targeting cod and haddock switched to derogated Nephrops trawling with smaller mesh sizes. In the absence of detailed data on the discards of the Nephrops fleet in the area, the negative impact of the derogations on the conservation objectives cannot be identified but according to the SGMOS report are likely to have been significant (SGMO, 2007);

• the fleets concerned may not have alternative fishing opportunities that compensate for the economic loss provoked by the closure. In that case, the vessels are no longer economically viable and apply for decommissioning or temporary tie-up schemes under the EU structural funds for fisheries (FIFG and EFF). One example is that of the French demersal trawl fleet active in the Celtic Sea (Biseau, 2007). Several trawlers have been withdrawn from the register following the Trevose closure, with positive impacts in conservation terms on the fishing effort deployed on the other stocks exploited by the decommissioned fleet.

Effort displacement is the main confounding factor identified and in most cases prevents proper evaluation of the magnitude of the impacts of closed areas.

SGMOS proposed the following recommendations concerning closed area for conservation purposes:

• Closed areas should be designed so that they can be evaluated using existing data. Practically speaking, since most stock evaluation data is collected on the basis of ICES statistical rectangles, closed areas should also be designed on the basis of these rectangles where possible.

• Closed areas should be assigned clear objectives and success criteria on the basis of which they can be evaluated. There should also be periodic evaluations of closed areas on the basis of which decisions can be taken as to whether the closed area should be maintained, modified or revoked.

• Detailed ex-ante evaluations to determine for both designation and revocation of closed areas the risks of adverse conditions for target and non-target stocks (e.g. effort displacement, fleet behaviour modifications).


• As far as possible and whilst considering that closed areas do not necessarily have to be ‘no-take’ areas, as few derogations as possible should be included as these have the ability to undermine the potential to achieve the objective of the closure.

• Recognition that closed-areas evaluations coupled with stock assessments can both provide a mean of monitoring of the effects of climate change of stocks and support decisions whether the location of the closed areas should be modified to reflect related shifts in the location of stocks (e.g. herring closures, Plaice Box).

Real-Time closures being a new management tool utilised in managing EU fisheries, no scientific evaluation could be completed as yet. While STECF (2011a) notes that real-time closures, if fully implemented and enforced, will result in a reduction in cod catches, other evaluations suggest that RTCs may contribute to reduce overall cod mortality while they are closed, but that they may not have had any longer-lasting effect on cod exploitation patterns as it appear that that there are some movements back towards cod-rich areas following the reopening of RTCs. According to Bailey et al. (2010) there are numerous applications in which RTC schemes can be deployed to protect events of limited scale or duration, such as spawning aggregations or capture of lower value animals in poor condition. RTCs could also be used to “fine tune” quota uptake in multi-species fisheries, reducing discards by encouraging effort to move away from areas where species which have experienced high uptake are known to be abundant, to areas where the catch composition is likely to be more appropriate.

It is difficult to conclude on the effectiveness of closures as a technical measure to support stock conservation. Apart from the lack of objectives assigned to individual closures it is not possible to disentangle the effects of closures from the effects of other management measures having a potential impact on the stock concerned. This being said, some closures appear to have been beneficial, and for others, the main recommendations emanating from relevant scientific bodies such as ICES and STECF are to maintain them simply because they contribute to some extent to decrease fishing pressure on overexploited stocks. For some current closures (herring closures, plaice box), evaluations suggest that they could be more effective if they were adapted to changing patterns in the distribution of stocks and fishing patterns.

B.2.3 Are protected species effectively protected from interactions with fishing through technical measures?


The EU Habitat and Bird Directives foresee protection of several marine species including cetaceans, pinnipeds, marine turtles, seabirds and some anadromous and catadromous species (e.g. lampreys). In addition, the Commission has adopted specific conservation action plans for seabirds and sharks. These species are collectively referred to under the term protected species.

Most anthropogenic maritime economic activities are a potential source of threat to the conservation of protected species. Fishing is one of the most significant of these threats. Protected species can be accidentally or incidentally caught and either injured or killed by fishing gears. Technical measures, which regulate how, when and where a fishing vessel can deploy its activities, have clearly the potential to minimize or mitigate such interactions with fishing gears. The evaluation of the effectiveness criteria will seek to identify what measures have been adopted so far and their likely impacts on protected species.


B.2.3.2 Methods

Evaluation of technical measures focusing on protection of protected species is supported by the identification of the instruments in the relevant regulations that are relevant for promoting avoidance or mitigation of impacts of fishing on protected species. Evaluations of their impacts have been extracted from the relevant scientific and technical literature.

Note that the CFP also seeks to protect some species (e.g. sharks and rays) through the fixation of zero fishing opportunities. This type of measure is not considered in this evaluation as it is not a technical measure per se. Zero fishing opportunities for a species may encourage fishermen to avoid targeted fishing but do not prevent accidental or incidental capture. Similarly, the evaluation does not consider the possible indirect impacts of closures on protected species. The closures implemented so far in the EU legislation are clearly intended to support conservation of commercially exploited stocks. There is however one exception: the closure in 2000 of a sandeel fishery off the east coast of Scotland which aims to ensure the breeding success of seabird kittiwake by restricting fishing for their main prey species - sandeel.


Criteria Indicators

Accidental or incidental mortality of protected species in relation to fishing activity should be minimized and be compatible with conservation objectives for these species

None: according to ICES (2013), there is not enough data on interactions between fishing gears and protected species to populate a relevant indicator although ICES are looking at this following a request by the EU.


There are three main technical measures that can be assumed to have the objective of minimising impacts of fishing activities on protected species in the North Atlantic and North Sea:

• Reg. (EC) No. 812/2004 for the protection of cetaceans

• Reg. (EC) No. 894/97 banning the use of driftnets utilised to catch highly migratory species

• Various measures adopted under the multilateral context of ICCAT to protect various species of sharks, seabirds and marine turtles from interactions with fishing vessels targeting highly migratory species

It can be estimated that overall, EU technical measures adopted so far have only be partially effective at mitigating interactions between fishing activities and protected species that result in accidental or incidental catches. According to the Commission’s own evaluation, Reg. (EC) No. 812/2004 has been largely ineffective in protecting cetaceans although it has significantly increased the knowledge on the extent of cetacean bycatch. The ICES Working Group on bycatch of protected species (WGBYC) supports this evaluation and mentions that there is still not enough information on the cetaceans populations in the North Sea and North Atlantic, nor enough comprehensive data on their interactions with fishing gears to allow an evaluation of the likely impact of fishing on cetacean population or to the effectiveness of mitigation measures introduced.


Regulation (EC) No. 894/97 is thought to have been effective at reducing bycatch of cetaceans, seabirds and turtles but only from interactions with a somewhat limited fleet (≈ 90 vessels) that was operating seasonally in a fishery for albacore tuna. The main outcome of this measure is that accidental catches of seabirds, cetaceans or other protected species by driftnets set in the high-seas to catch highly migratory species no longer occur. However, the impact of the measure has not been assessed so far.

Most pinnipeds, seabirds and marine turtles living in the North Atlantic and in the North Sea are not directly protected under the CFP, although the Habitat and Birds Directives as well as the MSFD do impose certain obligations to Member States in this respect. Some measures to protect these species are in place in non-EU waters covered by Regional Fisheries Managements Organisations (RFMOs). Most notable are the measures introduced by CCAMLR and ICCAT to protect seabirds in longline fisheries managed by these tow RFMOs.

Reg. (EC) No. 812/2004 is also an example of top-down micro-management by the EU Council which proves to be too rigid. Any changes in this regulation concerning the observer scheme or the technical characteristics of the acoustic deterrent devices defined in annex II have to go through the co-decision process, which seems to be disproportionate. However, Reg. (EC) No. 812/2004 provides an opportunity for Member States to use alternative ADD under certain conditions and for a limited period of time (art. 3.2). So far, United Kingdom, Ireland and Denmark have utilised this clause to experiment alternative mitigation techniques.

In conclusion, it appears that the potential of technical measures to minimise or mitigate interactions with protected species is yet to be fully utilised. The few measures that have been adopted so far, in particular to protect cetaceans, have proved to be ineffective or their effectiveness cannot be evaluated due to data issues. The current instruments are also too rigid and cannot be readily adapted to changes in populations of protected species or new solutions provided by technological innovations.

B.2.4 Are technical measures focused on protection of habitats effective?


The EU and Member States committed to develop a network of Marine Protected Areas under the OSPAR convention. This commitment is enforced in the EU legislation through the Habitats and Birds Directives which require Member States to designate and manage a coherent network of Marine Protected areas in EU waters (NATURA 2000 sites).

MPAs can be delineated inside the territorial waters of Member States (inshore MPAs) and outside (offshore MPAs).

For inshore MPAs, the basic CFP regulation empowers Member States to take non-discriminatory measures for the conservation of marine eco-systems within 12 nautical miles of their baselines provided that the Community has not adopted measures addressing conservation and management specifically for this area (which is often the case). Where measures to be adopted by a Member State for its territorial waters are liable to affect the vessels of another Member State, such measures shall be adopted only after the Commission, the Member State and the Regional Advisory Councils concerned have been consulted on the measures to ensure they are non-discriminatory.

For offshore MPAs, Member States can adopt habitat conservation measures but only to their own vessels. If other fishing vessels are active in the zone, their activities must be regulated through a CFP instrument incorporating a set of non-discriminatory technical measures contributing to the


objective of habitat conservation. Examples include the closures off the West coast of Ireland to protect coldwater coral reefs.

There is evidence that Member States have the necessary architecture to implement habitat conservation measures in their own territorial waters. The evaluation question relates more to the effectiveness of the current technical measures to regulate impacts of fishing activities in offshore MPAs.

B.2.4.2 Methods

The evaluation of the effectiveness of the current technical measures framework to contribute to habitat preservation in offshore areas has been done by comparing the MPAs network currently submitted to OSPAR and the EU legislation applying to these areas.


Criteria Indicators

Interactions between fishing activities and habitats in offshore MPAs designated by EU Member States are managed by an EU instrument

Number of MPAs in offshore areas having fishing activities managed by an EU instrument / total number of offshore MPAs designated


The current EU technical measures include provisions for the closure of certain area around seamounts to protect deep-sea corals and other unique features of these ecosystems. Closures apply both inside and outside EU waters (Art. 30.5 and 34 d,e,f of Reg. (EC) No. 850/98). In these cases, fishing is prohibited to all fishing gears likely to interact with the bottom (bottom trawling and fishing with static gear, including bottom set gillnets and bottom set longlines). Access to the zones for other types of fishing vessels (i.e. vessels targeting pelagic species) is subject to additional access conditions.

However, MPAs are not necessarily no-take zones on which use of bottom gears shall be prohibited. One example is the Doggerbank MPA designated by Netherlands, Germany and the United Kingdom. Given the strategic location of this MPA in the middle of the North Sea and its likely exploitation by fishing vessels from other Member States and third countries, it is likely that a CFP instrument with technical prescriptions on gear and how and where they can be used will be needed to regulate the impact of fishing in these habitats. So far, Netherlands has proposed management measures for the Doggerbank MPA, but they apply only on Dutch vessels, and other Member States, with support of the RAC, are currently reflecting on a set of measures.

The current lack of CFP instruments for habitat protection other than a radical closure to bottom gears outside territorial waters of Member States can be attributable to the fact (i) that most of these high seas MPAs have been proposed relatively recently (2010 onwards) with an ongoing consultation process between all stakeholders and also (ii) that the current CFP does not include a proper legal architecture for adopting specific fisheries management measures in this Habitat context. Under the current regime, the only legal possibility for the adoption of closed areas to protect sensitive habitats is through a Council / European Parliament regulation amending Reg. (EC) No. No 850/98. This is a lengthy process and has resulted in the fact that only relatively few closures are currently in place.


So far, the technical measures framework has been effective to preserve some vulnerable ecosystems located in deep sea areas. The measures taken have been relatively straightforward by prohibiting the use of high impact bottom gears in these areas. The EU offshore MPA network is developing and will expand. Certain zones designated by Member States will not be no-take zones but will have bottom fishing activities regulated under a general objective of preserving the habitat features. Although it is probably too early to draw formal conclusions as the management plans of these offshore MPAs are still discussed, it is likely that the current technical measures will prove to be too rigid to manage at such a fine scale the interactions between fishing activities of different Member States and habitats.

B.3 Efficiency

B.3.1 Have the objectives of technical measures been achieved at reasonable cost?


“Efficiency” can be defined as the extent to which the desired effects (= results and impacts) are achieved at a reasonable cost. If defined in this way, “efficiency” equates to “cost-effectiveness”. Assessing whether the results/impacts of technical measures have been achieved at a reasonable cost, ideally requires an assessment of both the costs, and the benefits, of technical measures.

The terms of reference for this evaluation suggest that in considering the benefits of technical measures, the consultants should ‘assess the level of implementation of technical measures across Member States based on MS and Commission reviews’. And that on the costs side of the equation, the consultants should ‘assess the cost of enforcement of technical measures incurred by Member States relative to the benefits in terms of protection of fish stocks’.

The terms of reference thus suggest a focus on ‘control’ costs, and the resulting benefits. However, our understanding of this question is that assessing the efficiency of technical measures should be considered more broadly to consider other costs which may have been involved with technical measures, in addition to results/impacts, namely: research costs (e.g. costs on research projects exploring technical measures); and structural fund costs (e.g. FIFG and EFF funds used in support of technical measures).

B.3.1.2 Methods

The evaluation of efficiency / cost-effectiveness has been completed based on an assessment of available information and data on costs (e.g. control costs, research costs, and structural fund costs), the results/impacts discussed in this evaluation report, available literature and previous studies, and stakeholder interviews.

In considering the cost effectiveness of MCS of technical measures, earlier studies (e.g. Oceanic et al., 200062, MRAG et al., 200863) have developed methodologies for determining the cost-efficiencies of different MCS means by examining the costs of different inspection types and the proportion of inspections undertaken at sea, by air, and on land that result in the detection of infringements. This type of analysis which has showed that land-based inspections may often be considered more cost effective than sea and aerial-based surveillance in terms of the cost/infringement detected is used in assessing the efficiency of technical measures specifically.

62 Op. cit. 63 Op. cit.


B.3.1.3 Criteria and Indicators

Earlier comment in this report:

• Has highlighted that it is not possible to attribute a proportion of total MCS costs to technical measures as opposed to MCS of other fisheries management measures.

• Has presented the results/impacts of technical measures (Section A.4). However it is not meaningful to attempt to quantify these impacts in a monetary sense given the multiple factors impacting on stock status, and on resulting environmental, social, and economic outcomes.

• Has presented some research costs that have been incurred in relation to technical measures (Section A.5). However it has not been possible as part of this evaluation to provide a comprehensive estimate of total research costs incurred by both the EU and Member States.

It is also observed in relation to structural funds that monies provided by the EU and by Member States related to technical measures may be provided for under a variety of different axes, e.g. EFF priority axis 1: measures for the adaptation of the Community fishing fleet, Article 25 ‘Investments on board fishing vessels and selectivity’. Or Priority axis 3: measures of common interest, Article 37 collective actions and Article 38 Measures intended to protect and develop aquatic fauna and flora, or Article 41 pilot projects). Without examining the EU database in its entirety to identify all funds used related to technical measures, which is outside the scope of this evaluation, it is not possible to quantify the structural funds used in relation to technical measures.

Due to the difficulty of attributing costs to technical measures, and of isolating and monetizing the result/impacts of technical measures, a quantitative cost/benefit or cost efficiency analysis is not possible. We therefore adopt a more qualitative and expert judgment-based approach, and one which primarily seeks to explore whether the results/impacts of technical measures as presented earlier in this evaluation could have been achieved at a lower cost. This approach is considered justified given the data availability issues, and because the mention of ‘reasonable’ cost implies that there is no pre-defined quantitative indicator which is considered to provide a definitive benchmark of whether efficiency has been achieved or not.

In informing our assessment, and as proxy criteria for efficiency, it can however be observed that cost-effectiveness may be ensured/improved when certain principles are achieved. These principles include:

• Implementation of a risk-based approach to control and enforcement;

• The accessibility of the results of MCS to all relevant stakeholders;

• The timely application of corrective measures;

• Clear and unambiguous legislation; and

• Simplification of the range of technical measures in place.


Reflecting on the previous methodologies referred to in Section B.3.1.2 there are inherent problems in this type of analysis in terms of whether declining levels of infringements over time reflect higher levels of compliance due to effective enforcement, or control means which are becoming less effective. In addition, as noted earlier in this report (Section 0), different control means have differing


abilities to detect different types of technical measures being infringed. This means that if, for example, technical measures related to gear specifications are to be effectively enforced and their beneficial impacts to be realized, a certain level of sea-based patrols must be completed as gear infringements are very difficult to detect using other inspection means. In addition, the important deterrent effect of sea-based patrols should be noted. This and the summary table at the end of Section 0 suggest that there may be an efficiency need for all different types of inspection means to be used if the different types of technical measures are to be properly enforced. These factors probably explain why, even though daily sea-based patrol costs may be in excess of EUR 15 000/day as stated earlier, control authorities interviewed as part of this evaluation felt that sea-based inspections provided good value for money in relation to the enforcement of (gear-related) technical measures. However, as noted earlier in Section 0, some sea-based patrols use MPVs that are ‘rented’ from Coastguards/Navy. It may be the case that the use of FPVs in general provides better value for money than MPVs given that they are more ‘fit for purpose’ in terms of the specific needs of fisheries inspection duties, i.e. appropriately sized and crewed with specialist fisheries staff.

Earlier text also highlighted the evolution in recent years towards greater levels of MCS coordination and planning, both within Member States (by the multiple agencies often involved with MCS activities, e.g. police, customs, navy, fisheries departments), and between Member States as exemplified by the Joint Deployment Plans (JDPs) supported by the EFCA. These developments suggest that efficiency is improving over time. Such improvements are further supported by the use of risk-based assessments in MCS of technical measures as required by Council Regulation (EC) No. 1224/2009, (see preamble paragraphs 8 and 11, Article 5 (2), Article 41 (1), Article 46 (2), etc.), and are in conformity with the proxy criteria proposed above, i.e. use of a risk-based approach.

Comment can also be made in connection with MCS on the other principles suggested in Section 0. JDP MCS results are made available through the EFCA website. However, the previous requirement for Member States to provide data to the Commission on infringements and sanctions is no longer in place, and data on technical measures infringements are not now published/disseminated at an EU-level for all Member States (although many/most Member States are likely to record such data themselves). This lack of accessibility of results at an EU level for post 2006 data could be seen as implying a lack of cost effectiveness, in that if such data were available they could be used to generate efficiencies.

As noted elsewhere in the report, the regulatory framework in place and the processes for amending legislation are complex and rather inflexible. As a result the principle of the timely application of corrective measures is not always evident, suggesting a lack of efficiency and increased administrative costs for Member States and the EU in bringing about changes to technical measures over time.

Section 0 also detailed a number of instances where legislation is not clear and unambiguous, highlighting that this principle of cost effectiveness is also not evident, and that resulting costs for private sector and governments alike are likely to be higher than they might otherwise have been.

Finally, and perhaps of particular importance in relation to MCS costs and impacts, it can be observed that the evolution in technical measures since 1998 has resulted in multiple pieces of legislation covering a wide range of different technical measures. While there have been positive results/impacts of much of the legislation, the piece-meal and extensive approach to regulation has not conformed to the principle of a simple range of measures being in place, and have resulted in cost-inefficiencies given that each time new legislation is introduced this requires negotiation with Member States, training for inspectors, education of fishermen, etc. The many technical and highly prescriptive regulations place a high burden on Member State control authorities and fisheries management administrations in terms of the costs and complexities involved with enforcing such a large range of measures, and the associated administrative burden.


In considering research costs, earlier text (Section A.5) showed that in excess of EUR 15 million has been provided for technical measures/gear-related research under the EU Framework Programmes, and many Member States have funded additional research themselves. As concluded in Section A.5 ‘Uptake of research results by the industry is considered as disappointing in some Member States’, suggesting that cost effectiveness of research has only been partly achieved.

In relation to the costs and benefits of structural funds, while it is possible to observe that considerable levels of FIFG and EFF funds having been spent by the EU and Member States, it has not been possible to determine within the scope of this evaluation the specific cost/effectiveness of funds spent on technical measures.

In conclusion, while there have been some improvements in efficiency in recent times, there are also strong qualitative indications that efficiency and cost effectiveness of technical measures has not been optimised. The extensive range of complex regulations have imposed significant costs for Member State control authorities and management administrations which could have been avoided with simpler, better defined, and more limited regulations. In the future a more output-based approach to MCS rather than attempts to control technical measures in situ could provide better efficiency / cost effectiveness.

B.4 Coherence

B.4.1 Are existing technical measures coherent with the overarching objectives of EU policy?


The CFP has a general objective of providing for sustainable exploitation of living aquatic resources and of aquaculture in the context of sustainable development, taking account of the environmental, economic and social aspects in a balanced manner.

EU policy having potential impact on fishing activity is also governed by following key pieces of environmental legislation:

• Marine Strategy Framework Directive (MSFD) (Directive 2008/56 of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy) with general objective to maintain biodiversity and provide diverse and dynamic oceans and seas which are clean, healthy and productive ; promote the integration of environmental considerations into all relevant policy areas ; and deliver the environmental pillar of the future maritime policy for the European Union.

• Birds Directive (Council Directive 2009/147/EC of 30 November 2009 on the conservation of wild birds) and Habitats Directive (Council Directive 92/43 of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora). These Natura 2000 Directives have the general objective of promoting the maintenance of biodiversity, taking account of economic, social, cultural and regional requirements.

EU initiatives are also governed by the Europe 2020 strategy adopted in early 2011 that supports the shift towards a resource-efficient, low-carbon economy to achieve sustainable growth. According to COM (2011) 21, the reformed CFP should be consistent with Europe 2020 strategy in particular by reducing waste of resources (i.e. discards) and decreasing the fleet dependency on fossil energy.

Technical measures are one of the management tools available to the EU to reach the objectives of the CFP. The specific objectives of technical measures (reduced catches of juvenile fish species,


reduced catches of unwanted species, protection of nursery and spawning areas, protection of habitats) are coherent with the objectives of the CFP. The general objective of the CFP is coherent with the objectives of the Birds and Habitats Directive and the MSFD that have broad objectives to maintain biodiversity and restore healthy marine environment. Europe 2020 objectives have not yet been explicitly incorporated in the CFP.

The evaluation question is not intended to detect possible lack of coherence between the objectives of technical measures and the overarching EU policy. According to the foregoing paragraphs, such incoherence at the level of objectives is inexistent. The question is more to identify if technical measures do not have unexpected effects that may undermine the objectives of EU policy (i.e. question of internal coherence).

B.4.1.2 Methods

Having examined in details relevance and effectiveness of technical measures (previous sections), the analysis concentrates on the identification of unexpected effects of technical measures that undermine the objectives of the CFP and other EU initiatives that may concern the regulatory environment of fishing activities.


Criteria Indicators

Performances of technical measures should contribute to the objectives of overarching EU policy

None identified. Expert judgment


The main undesirable effect of the current technical measures is that they create a legal obligation for discarding fish species.

The evaluation of the effectiveness of the measures focusing on gear configuration shows that there is a mismatch between the selectivity properties of legal gears and the MLS. Consequently, legal gears will catch undersized fish species in quantities in relation with the abundance of small fish across the gear path. Through closures of areas where juvenile fish are abundant (nursery areas), technical measures have the potential to minimize these catches of undersized species. The review of discards data for some selected fleets identified that discards of fish species under the MLS is relatively frequent, although not quantifiable. Discarded fish species include undersized individuals of the target species (whitefish, flatfish, Nephrops), as well as undersized individuals of other fish species caught during the same fishing operations.

Technical measures are also poorly effective to avoid catches of non-target species in fisheries using towed nets with smaller mesh sizes subject to compliance with catch composition rules. As a result, some quantities of marketable fish are discarded when catches are in excess of permitted catch composition percentages. In this context, closures may also support avoidance of areas where adult fish are abundant (spawning areas). Marketable fish are also discarded for other reasons including availability of landing possibilities (quotas) or the now illegal practice of highgrading.


Under the assumption that few discarded survive, which may not be true for all types of species64, it can be established that the low effectiveness of certain technical measures contributes to generate additional fishing mortality on stocks. This undermines the conservation objective of the CFP but also the MSFD objectives while discarding contravene the Europe 2020 objective on resource efficiency.

There is also evidence that the prescriptive top-down approach adopted by the EU to regulate technical measures may have a counterproductive effect on the improvement of selectivity of fishing gears. As STECF (2012a) states, the innovation potential of the fishing industry has concentrated on means to legally circumvent technical measures as a response to minimise short term losses. This has resulted in a technological and regulatory arms-race, where subsequent rules are applied in response to technological innovation by the industry. Prescriptive input regulations can also stifle positive technical innovation as fishermen are encouraged only to use gears that comply with minimum standards and not to focus on the intention of the regulation. The first attempts to implement a result-based management approach in EU fisheries (article 11 & 13 of Reg. (EC) 1342/2008, discard ban in the Skagerrak) have shown that the innovation potential of the industry and of the research community can be used in a more positive way to improve gear selectivity to the benefit of EU policy.

Although their objectives are coherent with the overarching objectives of EU policy, technical measures have unexpected effects that undermine these objectives. The main unexpected effect of technical measures framework is that they contain a legal obligation to discard as a consequence of its poor effectiveness in avoiding catches of juveniles and unwanted fish species. Discarding undermines the conservation policy, MSFD objectives and is not consistent with Europe 2020 objectives. Also, the prescriptive top-down approach adopted to regulate technical measures forms an incentive to misuse the innovation potential of the fishing industry to modify gears to circumvent rather than enhance conservation measures.

B.5 Acceptability

B.5.1 To what extent do stakeholders accept technical measures?


Several reviews of technical measures, (e.g. Suuronen and Sarda (2007)), suggest that successful use of technical measures depends largely on their acceptance by industry. Non-acceptance results in low levels of compliance and as a result, poor performances of technical measures compared to their expected positive impacts.

It is therefore important to consider the level of acceptance of technical measures in EU fisheries, and identify what may drive fishermen to accept or reject the principles of certain technical measures adopted so far. In the same vein, there is a need to identify the drivers for compliance or non-compliance with the regulations. This question covers the nature of the measures themselves and their results, as well as the decision-making process having led to the adoption of these measures.

B.5.1.2 Methods

In the frame of this evaluation, interviews with several fishermen organisations were held to discuss the issue of acceptability. The organisations met covered both demersal and pelagic fisheries.

64 Under certain conditions, shellfish and crustacean species discarded have higher survival rates than finfish species.


Representatives were asked questions on their current and past experience with EU technical measures using a structured questionnaire. The topics discussed covered the perceived benefits of technical measures, the compliance, the involvement of fishermen in the decision-making process and how the sector could be more proactive in the definition and implementation of technical measures. The topics discussed as well as the opinion of fishermen organisations are summarized in appendix 3. All questionnaires were filled out during face to face interviews.

The main difficulty encountered during the interviews is that the topic is very broad and difficult to disentangle from other measures such as fishing opportunities and fishing effort restrictions. Technical measures cover a wide range of different micro-measures on gears, area closures, MLS etc. that are applied under various fisheries contexts with multiple derogations. Therefore, a particular technical measure may not be an issue for one Member State fleet segment, but maybe a serious issue for another Member State fleet segment. Additionally for some Member States, (e.g. North Sea demersal fisheries), technical measures are only one type of constraining management measure with potentially less consequences on the fleet than limits on fishing opportunities or restrictions on fishing effort. In this case, perception of technical measures is difficult to disentangle from the perception of the other elements of the EU management system.

These potential difficulties had been identified prior to the meetings. Instructions had been given to interviewers to carefully channel the discussions on the relevant topics to try to avoid as much as possible debating issues not specifically relevant to the technical measures (i.e. the introduction of a discard ban under the new CFP that frequently overshadowed all other issues).

B.5.1.3 Criteria and Indicators

Perception of fishermen on technical measures is measured by the level of consensus on the statements discussed. The percentages of agreement on the statements are detailed in appendix 3.


The majority of fishermen organisations agree on the potential of technical measures to bring conservation benefits. This suggests that the principle of regulating fishing activities through this instrument is accepted. Generally, it is acknowledged that closed areas, mesh size, square mesh panel and selectivity devices all produce conservation benefits. Closures have been cited in several occasions as a potentially simple efficient measure to avoid concentrations of juveniles or spawners. The acceptance of a potential contribution of technical measures to conservation benefits is further compounded by the level playing field they support.

However, conservation benefits could be increased if there was more flexibility in the decision-making process in setting technical measures. The case of closed-areas "set in stone" once they are introduced but do not now match the distribution pattern of the stocks they intend to protect is a recurrent comment. Some organisations disagreed mainly on the belief that technical measures have resulted in more discards mainly as a result of the catch composition rules and the way they are applied (percentages should match legislation in any fishing day). Fishermen organisations report that technical measures should have clear objectives in terms of benefits for the stocks, particularly if the management system is progressing to a results-based approach. As it stands now, technical measures are imposed without communication on their benefits / rationale. Acceptance will however depends on whether the objectives are supported by evidence and agreed to by fishermen. In case these objectives are not being reached, there should be some mechanism for addressing the reasons why (i.e. an evaluation).

Most fishermen organisations (67%) find that EU technical measures are difficult to implement. For the remaining 33%, implementation of EU technical measures is not a particular issue. Difficulties in implementation relate mainly to technical issues. For example, use of grids to achieve selectivity in Nephrops fisheries is perceived by some as impractical. Alternatives that give the same results are


not allowed and so innovation is stifled. Another criticism is that adaptation of gears to legislation is also costly with short lead-in times.

Most fishermen organisations mention that contrary to widespread belief, EU regulations are not that complex and difficult to understand and implement. The master of a fishing vessel who knows when, where and how he is going to fish finds it relatively easily to identify rules he has to comply with in the legislation. This finding is particularly valid for fisheries less regulated than others (pelagic fisheries, fisheries outside regions 1 & 2). The EU technical measures framework is complex for individuals (e.g. managers, controllers) needing to have a full overview of the legislation.

On compliance, a large majority of fishermen organisations believe that mesh sizes are properly complied with (83%). However, some fishermen organisations report that mesh size is not a major constraining factor as selectivity can be legally adjusted downward if needed by using particular types of legal stiffer twines. Some associations mentioned that infringing mesh size rules to catch small fish species is incentivised by the poor economic situation of the vessels and the existence of a market for such fish.

Most fishermen organisations interviewed (88%) feel that the original technical measures regulations had very little effective consultation, and no feedback from industry was integrated into the final regulations. In addition, fishermen organisations believe that there has been a lot of political interferences in the decision-making process with the example of some closed areas that appear to be politically motivated rather than supported by robust scientific evidence. However, most fishermen organisations believe that the situation is improving and that the RACs are a useful forum to utilise fishermen knowledge in the decision- making process. Some good examples include the seasonal closures in the Celtic Sea to protect cod and the seasonal closure of the Porcupine Bank to protect Nephrops which came about through direct involvement with the NWWRAC

Consequently, there is a general consensus that there should be greater involvement of fishermen in the definition of technical measures. This would ensure that technical measures are sensible, practical and effective; and result in higher compliance levels. Fishermen can valorize their knowledge to reduce discards, however many indicate that zero discards is not a realistic objective. There are a number of technical solutions available, and above all, fishermen know what they are going to fish when deploying their gears in a particular area. However, fishermen associations suggest that an over-arching EU framework would be desirable to ensure a ‘level playing field’. From their experience, there is still a huge amount of work required in setting up regional entities to ensure this is done fairly across Member States.

For fishermen organisations, the use of selective gear should be incentivised with increased fishing opportunities (e.g. days at sea and overall effort) or direct financial support. Catch rates are lower with large meshes or selectivity devices, and this should be compensated for. Incentives should encourage more innovation from industry. Currently there are few incentives for fishermen to adopt measures voluntarily except in some particular cases (the cod plan) which seemed to have been successful when there has been the incentive of an easing or removal of effort restrictions.

From the consultation of fishermen organisations it is clear that the industry believes that acceptability of technical measures, and therefore compliance, will be greater if fishermen are involved in the decision making process and are in a position to valorise their practical experience to design measures that have clear objectives. While mentioning that technical measures are necessary and remain relevant to manage fisheries, and that they contribute to maintain a level playing field as virtually every single rope of a net is regulated, the main motivation to reject the current system (at least partially) is its top down prescriptive approach potentially distorted in some cases by political interferences.


A bottom-up approach is desirable to achieve better results. However, fishermen organisations feel that this should be carefully implemented to maintain a level playing field. Also, selectivity improvements should be incentivised by financial transfers or additional fishing possibilities to compensate for the inevitable short term economic losses that some fleets in the catching sector cannot withstand in the current economic climate.

B.6 Conclusion: main lessons learnt from the ex-post evaluation

The evaluation of the relevance criteria indicates that technical measures are needed and will continue to be needed as one of the management tools utilised to regulate fishing mortality and impacts of fishing on the marine ecosystem. Their objectives are particularly relevant. However, the evaluation finds that the design of the intervention is no longer relevant to address the needs and objectives. The current architecture for regulating technical measures with a centralised top down management by the EU Council and European Parliament proves to be too rigid and not sufficiently flexible to support the objectives of the CFP. Nonetheless, the current mechanism does at least partially support a level playing field across EU fisheries, a merit widely acknowledged by Member States managing authorities and professional organisations.

Evidences demonstrate that the current technical measures are not effective at avoiding catches of juvenile fish or unwanted fish species. Many legal fishing gears are unselective, forcing fishermen to discard large amounts of both undersized and marketable fish species This suggests that the regulatory tools utilised which include mainly gear prescriptions with conditions associated with their use (catch composition rules) and closures of areas to protect concentrations of juveniles or spawners are not sufficiently adapted to the specificities of the different EU fisheries The problems are greatest in the mixed demersal towed gear fisheries. The low effectiveness of technical measures to avoid discards can be attributed to the lack of relevance of the design of the intervention which cannot take into account local specificities in a proportionate manner. Concerning the management of impacts of fishing on the broader environment, the few measures adopted so far to minimise interactions with protected species are estimated to be largely ineffective and to provide insufficient coverage for the appropriate species or areas/fisheries. EU technical measures effectively address the protection of habitats when this requires prohibition of demersal fishing gears within the areas protected. However, future marine protected areas will not necessarily be ‘no-take’ zone for demersal gears and it is estimated that the current EU technical measures will not be adapt to regulate fishing activities in coherence with habitats objectives at such a local scale.

The evaluation of efficiency, when considering the costs of MCS, research and structural funds related to technical measures, and the resulting impacts/benefits, is problematic in quantitative terms. Some improvements in cost efficiencies have been realised in recent years through increased collaboration between control agencies within and between Member States. The control of specific technical measures requires the use of specific types of inspection means which may be costly but justified given detection abilities, e.g. sea-based patrols to enforce gear regulations. Risk-based MCS approaches have also served to increase efficiency. However consideration of a number of criteria/principles suggests that cost effectiveness has not been maximized because: the results of MCS are not widely available to all relevant stakeholders; measures to correct legislation are lengthy; legislation is often not clear and unambiguous; and there is a wide range of piece-meal legislation that has been put in place over time. The strong focus on MCS of technical measure in situ rather than on outputs, and the inflexible framework based on low regional specificity and acceptability, have all served to undermine efficiency. The cost effectiveness of much technical measures-related research has also been questionable given the low up-take by the private sector.


Although their objectives are coherent with the overarching objectives of EU policy, technical measures have unexpected effects that undermine these objectives. The main unexpected effect of technical measures framework is that it creates the conditions for discarding fish species, undermining the conservation objective, MFSD objectives and the Europe 2020 objectives. Also, the prescriptive top-down approach adopted to regulate technical measures forms an incentive to misuse the innovation potential of the fishing industry that the Europe 2020 objectives seek to promote.

The current EU technical measures framework is not well accepted by fishermen. Some rules are perceived to be counterproductive for the conservation of stocks and often imposed without clear objectives. In addition, it is felt that the industry has been insufficiently associated in the development of technical measures although the situation has improved with the integration of the RACs into the decision-making process. EU technical measures will be well accepted and complied with if the industry is associated in their development, if they have clear objectives and if they are sufficiently flexible to adapt to changing circumstances. Additionally, the industry feels that uptake of more selective fishing practices should be incentivised to compensate for the short-term economic losses incurred.

Overall, the lessons from the ex-post evaluation suggest that the governance of the technical measures framework should be reformed to move away from the current the top-down prescriptive approach to a more decentralised approach incorporating better adaptation to the local contexts, flexibility and industry knowledge in the design of measures. The rigidity of the current system and its attempt to regulate all fisheries with a single instrument are identified as the main factors undermining the effectiveness to current technical measures to support the overarching objectives of EU policy.

The highly prescriptive approach adopted so far also contributes to place a high burden on Member States control authorities with a need to control compliance mostly in situ with support of control means costly to operate. Given the low effectiveness of technical measures to support conservation objectives, the investment in control appears to be weakly rewarded. A shift towards a result-based management system may contribute to alleviate the enforcement pressure on Member States control authorities although the experience shows that a prescriptive approach by Member States is still needed to maintain a level playing field.

Whatever solution is retained for the reform of the EU technical measures framework, it is desirable that the EU conserves a role to ensure that a level playing field is maintained across fisheries. The contribution of the current framework to the establishment of a level playing field is widely acknowledged by Member States authorities and the industry and seen as a necessary condition for acceptance of technical measures.

***

*


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Froese, R., Stern-Pirlot, A., Winker, H., Gascuel, D. (2008) Size matters: How single-species management can contribute to ecosystem-based fisheries management. Fisheries Research 92, 231-241.

Gálvez, M., Rebolledo, H. (2005) Estimating codend size selectivity of bottom trawlnet in Chilean hake (Merluccius gayi gayi) fishery. Investigaciones marinas 33, 151-165.

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Graham, N., Kynoch, R.J. (2001) Square mesh panels in demersal trawls: some data on haddock selectivity in relation to mesh size and position. Fisheries Research 49, 207-218.

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Herrmann, B., Priour, D., Krag, L.A. (2006) Theoretical study of the effect of round straps on the selectivity in a diamond mesh cod-end. Fisheries Research 80, 148-157.

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ICES (2011) General advice. Update of cold water coral and sponge maps and the information underpinning such maps on Vulnerable Marine Habitats (including Hatton and Rockall Banks). Report of the ICES Advisory Committee, 2011 Book 1 (section 1.5), 228 p.

ICES (2013) Report of the Workshop on Bycatch of Cetaceans and other Protected Species (WKBYC). ICES CM 2013/ACOM:36, 55 p.

Kraak, S.B.M., Bailey, N., Cardinale, M., et al. (2013) Lessons for fisheries management from the EU cod recovery plan. Marine Policy 37, 200-213.


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Madsen, N., Valentinsson, D. (2010) Use of selective devices in trawls to support recovery of the Kattegat cod stock: a review of experiments and experience. ICES Journal of Marine Science: Journal du Conseil 67, 2042-2050.

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APPENDIX 1: Inventory of EU Technical Measures Regulations

Whether in force or repealed, from STECF (2012a) updated May 2013

1980 1st Regulation

Council Regulation (EEC) No 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources Official Journal L 258, 01.10.1980 P. 0001 - 0015

1983 New Regulation 171/83

Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources. Official Journal L 024, 27.01.1983 P. 0014 - 0029

Amendments to 171/83

Council Regulation (EEC) No 2931/83 of 4 October 1983 amending Regulation (EEC) No 171/83 laying down certain technical measures for the conservation of fishery resources. Official Journal L 288, 21.10.1983 P. 1

Council Regulation (EEC) No 1637/84 of 7 June 1984amending for the second time Regulation (EEC) No 171/83 laying down certain technical measures for the conservation of fishery resources. Official Journal L 156, 13.06.1984 P. 1

Council Regulation (EEC) No 2184/84 of 23 July 1984 amending for the third time Regulation (EEC) No 171/83 laying down certain technical measures for the conservation of fishery resources. Official Journal L 199, 28.07.1984 P.1

Council Regulation (EEC) No 2664/84 of 18 September 1984 amending for the fourth time Regulation (EEC) No 171/83 laying down certain technical measures for the conservation of fishery resources. Official Journal L 253, 21.09.1984 P.1

Council Regulation (EEC) No 3625/84 of 18 December 1984 amending for the fifth time Regulation (EEC) No 171/83 laying down certain technical measures for the conservation of fishery resources. Official Journal L 353, 21.12.1984 P.3

Council Regulation (EEC) No 3625/84 of 18 December 1984 amending for the sixth time Regulation (EEC) No 171/83 in particular by the addition of technical conservation measures applicable to maritime waters falling within the sovereignty or jurisdiction of Spain and Portugal. Official Journal L 363, 31.12.1985 P.21


Council Regulation (EEC) No 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources. Official Journal L 288, 11.10.1986 P. 0001 - 0020


Council Regulation (EEC) No 4026/86 of 18 December 1986 amending Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 376, 31.12.1986 P. 0001 - 0003

Council Regulation (EEC) No 2968/87 of 29 September 1987 amending Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 280, 03.10.1987 P. 0001 - 0002

Council Regulation (EEC) No 3953/87 of 21 December 1987 amending for the third time Regulation (EEC) No 3094/86 laying down certain technical measures for the conversion of fishery resources. Official Journal L 371, 30.12.1987 P. 0009 - 0010


Council Regulation (EEC) No 1555/88 of 31 May 1988 amending for the fourth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 140, 07.06.1988 P. 0001 - 0002

Council Regulation (EEC) No 2024/88 of 23 June 1988 amending for the fifth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 179, 09.07.1988 P. 0001 - 0002

Council Regulation (EEC) No 3287/88 of 20 October 1988 amending for the sixth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 292, 26.10.1988 P. 0005 - 0005

Council Regulation (EEC) No 4193/88 of 21 December 1988 amending for the seventh time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 369, 31.12.1988 P. 0001 - 0002

Council Regulation (EEC) No 2220/89 of 18 July 1989 amending for the eighth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 211, 22.07.1989 P. 0006 - 0006

Council Regulation (EEC) No 4056/89 of 19 December 1989 amending for the ninth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 389, 30.12.1989 P. 0075 - 0077

1991. Council Regulation (EEC) No 3500/91 of 28 November 1991 amending for the tenth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 331, 03.12.1991 P. 0002 - 0002

Council Regulation (EEC) No 345/92 of 27 January 1992 amending for the eleventh time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 042, 18.01.1992 P. 0015 - 0023

Council Regulation (EEC) No 1465/92 of 1 June 1992 amending for the twelfth time Regulation (EEC) No 3094/86 laying down certain technical measures for the conversion of fishery resources. Official Journal L 155, 06.06.1992 P. 0001 - 0002

Council Regulation (EEC) No 2120/92 of 20 July 1992 amending, for the 13th time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 213, 29.07.1992 P. 0003 - 0004

Council Regulation (EEC) No 3034/92 of 19 October 1992 amending, for the fourteenth time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 307, 23.10.1992 P. 0001 - 0002

Council Regulation (EC) No 1796/94 of 18 July 1994 amending, for the fifteenth time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 187, 22.07.1994 P. 0001 - 0002

Council Regulation (EC) No 1173/95 of 22 May 1995 amending, for the sixteenth time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 118, 25.05.1995 P. 0015 - 0015

Council Regulation (EC) No 1909/95 of 24 July 1995 amending, for the 17th time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 184, 03.08.1995 P. 0001 - 0002

Council Regulation (EC) No 2251/95 of 18 September 1995 amending for the 18th time Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 230, 27.09.1995 P. 0011 - 0011


Council Regulation (EC) No 3071/95 of 22 December 1995 amending, for the 19th time, Regulation (EEC) No 3094/86 laying down certain technical measures for the conservation of fishery resources. Official Journal L 329, 30.12.1995 P. 0014 - 0017


Council Regulation (EC) No 894/97 of 29 April 1997 laying down certain technical measures for the conservation of fishery resources. Official Journal L 132, 23.05.1997 P. 0001 - 0027


Council Regulation (EC) No 1239/98 of 8 June 1998 amending Regulation (EC) No 894/97 laying down certain technical measures for the conservation of fishery resources. Official Journal L 171, 17.06.1998 P. 0001 – 0004


Council Regulation (EC) No 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 125, 27.04.1998 P. 0001 – 0036


Council Regulation (EC) No 308/1999 of 8 February 1999 amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 038, 12.02.1999 P. 0006 - 0009

Council Regulation (EC) No 1459/1999 of 24 June 1999 amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 168, 03.07.1999 P. 0001 - 0005

Council Regulation (EC) No 2723/1999 of 17 December 1999 amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 328, 22.12.1999 P. 0009 - 0011

Council Regulation (EC) No 812/2000 of 17 April 2000 amending Regulation (EC) No 1626/94 laying down certain technical measures for the conservation of fishery resources in the Mediterranean and Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 100, 20.04.2000 P. 0003 - 0004

Council Regulation (EC) No 1298/2000 of 8 June 2000 amending for the fifth time Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 148, 22.06.2000 P. 0001 - 0002

Council Regulation (EC) No 724/2001 of 4 April 2001 amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 102, 12.04.2001 P. 0016 - 0019

Council Regulation (EC) No 1298/2000 of 8 June 2000 amending for the fifth time Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 148, 22.6.2000, p. 1–2

Council Regulation (EC) No 602/2004 of 22 March 2004 amending Regulation (EC) No 850/98 as regards the protection of deepwater coral reefs from the effects of trawling in an area north west of Scotland. Official Journal L 097, 01.04.2004 P. 0030 - 0031

Council Regulation (EC) No 1568/2005 of 20 September 2005 amending Regulation (EC) No 850/98 as regards the protection of deep-water coral reefs from the effects of fishing in certain areas of the Atlantic Ocean. Official Journal L 252, 28.09.2005 P. 0002 – 0003


Regulation (EU) No 227/2013 of the European Parliament and of the Council of 13 March 2013 amending Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No 1434/98 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption. Official Journal L 78, 20.3.2013, p. 1–22

Transitional Technical Measures

Council Regulation (EC) No 1288/2009 of 27 November 2009 establishing transitional technical measures from 1 January 2010 to 30 June 2011. Official Journal L 347 24.12.2009, P.6

Regulation (EU) No 579/2011 of the European Parliament and of the Council of 8 June 2011 amending Council Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No 1288/2009 establishing transitional technical measures from 1 January 2010 to 30 June 2011. Official Journal L 165 24.06.2011, P.1.

Recovery measures containing technical measures:

Irish Sea cod

Commission Regulation (EC) No 304/2000 of 9 February 2000 establishing measures for the recovery of the stock of cod in the Irish Sea (ICES division VIIa).Official Journal L 035, 10.02.2000 P. 0010 - 0011

Commission Regulation (EC) No 660/2000 of 30 March 2000 amending Regulation (EC) No 304/2000 establishing measures for the recovery of the stock of cod in the Irish Sea (ICES Division VIIa).Official Journal L 080, 31.03.2000 P. 0014 – 0014

Council Regulation (EC) No 2549/2000 of 17 November 2000 establishing additional technical measures for the recovery of the stock of cod in the Irish Sea (ICES Division VIIa). Official Journal L 292, 21.11.2000 P. 0005 - 0006

Council Regulation (EC) No 300/2001 of 14 February 2001 establishing measures to be applied in 2001 for the recovery of the stock of cod in the Irish Sea (ICES division VIIa). Official Journal L 044, 15.02.2001 P. 0012 - 0014

Council Regulation (EC) No 1456/2001 of 16 July 2001 amending Regulation (EC) No 2549/2000 establishing additional technical measures for the recovery of the stock of cod in the Irish Sea (ICES Division VIIa). Official Journal L 194, 18.07.2001 P. 0001 - 0001

Council Regulation (EC) No 254/2002 of 12 February 2002 establishing measures to be applicable in 2002 for the recovery of the stock of cod in the Irish Sea (ICES division VIIa). Official Journal L 041, 13.02.2002 P. 0001 - 0003

North Sea and West of Scotland cod

Commission Regulation (EC) No 259/2001 of 7 February 2001 establishing measures for the recovery of the stock of cod in the North Sea (ICES subarea IV) and associated conditions for the control of activities of fishing vessels. Official Journal L 039, 09.02.2001 P. 0007 - 0010

Commission Regulation (EC) No 456/2001 of 6 March 2001 establishing measures for the recovery of the stock of cod to the west of Scotland (ICES Division VIa) and associated conditions for the control of activities of fishing vessels. Official Journal L 065, 07.03.2001 P. 0013 - 0016

Commission Regulation (EC) No 714/2001 of 10 April 2001 amending Regulation (EC) No 259/2001 establishing measures for the recovery of the stock of cod in the North Sea (ICES subarea IV) and associated conditions for the control of activities of fishing vessels. Official Journal L 100, 11.04.2001 P. 0005 - 0006


Commission Regulation (EC) No 715/2001 of 10 April 2001 amending Regulation (EC) No 456/2001 establishing measures for the recovery of the stock of cod to the west of Scotland (ICES division VIa) and associated conditions for the control of activities of fishing vessels. Official Journal L 100, 11.04.2001 P. 0007 - 0008

Commission Regulation (EC) No 2056/2001 of 19 October 2001 establishing additional technical measures for the recovery of the stocks of cod in the North Sea and to the west of Scotland.Official Journal L 277, 20.10.2001 P. 0013 - 0016

Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks and repealing Regulation (EC) No 423/2004. Official Journal L 348, 24.12.2008, p. 20–33

Celtic Sea

Commission Implementing Regulation (EU) No 737/2012 of 14 August 2012 on the protection of certain stocks in the Celtic Sea. Official Journal L 218, 15.8.2012, p. 8–9

Hake

Commission Regulation (EC) No 1162/2001 of 14 June 2001 establishing measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e and associated conditions for the control of activities of fishing vessels. Official Journal L 159, 15.06.2001 P. 0004 – 0009

Commission Regulation (EC) No 2602/2001 of 27 December 2001 establishing additional technical measures for the recovery of the stock of hake in ICES subareas III, IV, V, VI and VII and ICES Divisions VIIIa, b, d, e. Official Journal L 345, 29.12.2001 P. 0049 - 0051

Commission Regulation (EC) No 494/2002 of 19 March 2002 establishing additional technical measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e. Official Journal L 077, 20.03.2002 P. 0008 - 0010

Southern Hake and Norway lobster

Council Regulation (EC) No 2166/2005 of 20 December 2005 establishing measures for the recovery of the Southern hake and Norway lobster stocks in the Cantabrian Sea and Western Iberian peninsula and amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms. Official Journal L 345, 28.12.2005, p. 5–10

Baltic Sea Technical Measures

Council Regulation (EC) No 1866/1986 of 12 June 1986 for the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound. Official Journal L 162 18.06.86.P.1.

Council Regulation (EC) No 88/98 of 18 December 1997 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound. Official Journal L 9, 15.1.1998, p. 1–16

Council Regulation (EC) No 1520/98 of 13 July 1998 amending Regulation (EC) No 88/98 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound. Official Journal L 201, 17.7.1998, p. 1–3.

Commission Regulation (EC) No 677/2003 of 14 April 2003 establishing emergency measures for the recovery of the cod stock in the Baltic Sea. Official Journal L 097 15.04.2003 p. 31.

Council Regulation (EC) No 289/2005 of 17 February 2005 amending Regulation (EC) No 88/98 as regards the extension of the trawling ban to Polish waters Official Journal L 49, 22.2.2005, p. 1–1


Council Regulation (EC) No 2187/2005 of 21 December 2005 for the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 1434/98 and repealing Regulation (EC) No 88/98. Official Journal L349 31.12.2005.P.1.

Commission Regulation (EU) No 686/2010 of 28 July 2010 amending Council Regulation (EC) No 2187/2005 as regards specifications of Bacoma window and T90 trawl in fisheries carried out in the Baltic Sea, the Belts and the Sound. Official Journal L 199, 31.7.2010, p. 4–11

Mediterranean Technical Measures

Council Regulation (EC) No 1626/94 of 27 June 1994 laying down certain technical measures for the conservation of fishery resources in the Mediterranean. Official Journal L. 171 6.07.94. p.1

Council Regulation (EC) No 1075/96 of 10 June 1996 amending Regulation (EC) No 1626/94 laying down certain technical measures for the conservation of fishery resources in the Mediterranean. Official Journal L 142, 15.6.1996, p. 1–2

Council Regulation (EC) No 782/98 of 7 April 1998 amending Regulation (EC) No 1626/94 laying down certain technical measures for the conservation of fishery resources in the Mediterranean .Official Journal L 113, 15.4.1998, p. 6–7

Council Regulation (EC) No 1448/1999 of 24 June 1999 introducing transitional measures for the management of certain Mediterranean fisheries and amending Regulation (EC) No 1626/94. Official Journal L 167, 2.7.1999, p. 7–8

Council Regulation (EC) No 2550/2000 of 17 November 2000 amending Regulation (EC) No 1626/94 laying down certain technical measures for the conservation of marine resources in the Mediterranean. Official Journal L 292, 21.11.2000, p. 7–8

Council Regulation (EC) No 813/2004 of 26.4.2004 amending Regulation (EC) No 1626/94 as regards certain conservation measures relating to waters around Malta. Official Journal L 150, 30.4.2004, p. 32–41

Council Regulation (EC) No 1967/2006 of 21 December 2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea, amending Regulation (EEC) No 2847/93 and repealing Regulation 9EC) No 1626/94. Official Journal L409 30.12.2006 p.11.

Regulation (EU) No 1343/2011 of the European Parliament and of the Council of 13 December 2011 on certain provisions for fishing in the GFCM (General Fisheries Commission for the Mediterranean) Agreement area and amending Council Regulation (EC) No 1967/2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea. Official Journal L 347, 30.12.2011, p. 44–61

Non-EU waters Technical Measures

Council Regulation (EC) No 973/2001 of 14 May 2001 laying down certain technical measures for the conservation of certain stocks of highly migratory species. Official Journal L.137 19.05.2001.p.3.

Council Regulation (EC) No 600/2004of 22 March 2004 laying down certain technical measures applicable to fishing activities in the area covered by the Convention on the conservation of Antarctic marine living resources. Official Journal L. 97 1.04.2004.p.1.

Council Regulation (EC) No 831/2004 of 26 April 2004 amending Regulation (EC) No 973/2001 laying down certain technical measures for the conservation of certain stocks of highly migratory species. Official Journal L 127 29.04.2004. p.33.

Council Regulation (EC) No 520/2007 of 7 May 2007 laying down technical measures for the conservation of certain stocks of highly migratory species and repealing Regulation (EC) No 973/2001. Official Journal L 123 12.05.2007 p.3.

Gear Specifications and Operational Measures


Commission Regulation (EEC) No 3440/84 of 6 December 1984 on the attachment of devices to trawls, Danish seines and similar nets. Official Journal L 318, 7.12.1984, p. 23.

Commission Regulation (EEC) No 955/87 of 1April 1987 amending Regulation (EEC) No 3440/84 on the attachment of devices to trawls, Danish seines and similar nets. Official Journal L 90, 1.04.1987, p. 29

Commission Regulation (EEC) No 2122/89 of 14July 1989 amending Regulation (EEC) No 3440/84 on the attachment of devices to trawls, Danish seines and similar nets. Official Journal L 203, 15.07.1989, p. 21

Council Regulation (EC) No 1434/98 of 29 June 1998 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption. Official Journal L 191, 7.7.1998, p. 10–12

Commission Regulation (EC) No 1922/1999 of 8 September 1999 laying down detailed rules for the application of Council Regulation (EC) No 850/98 as regards conditions under which vessels exceeding eight metres length overall shall be permitted to use beam trawls within certain waters of the Community

Commission Regulation (EC) No 129/2003 of 24 January 2003 laying down detailed rules for determining the mesh size and thickness of twine of fishing nets. Official Journal L 022, 25/01/2003 P. 0005 - 0014

Commission Regulation (EC) No 146/2007 of 15 February 2007 amending Regulation (EEC) No 3440/84 as regards conditions for certain trawls for vessels operating pump aboard systems. Official Journal L46 16.02.2007, p.9

Council Regulation (EC) No 809/2007 of 28 June 2007 amending Regulations (EC) No 894/97, (EC) No 812/2004 and (EC) No 2187/2005 as concerns drift nets. Official Journal L 182, 12.7.2007, p. 1–2

Commission Regulation (EC) No 517/2008 of 10 June 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 850/98 as regards the determination of the mesh size and assessing the thickness of twine of fishing nets

Commission Regulation (EU) No 724/2010 of 12 August 2010 laying down detailed rules for the implementation of real-time closures of certain fisheries in the North Sea and Skagerrak.Official Journal L 213, 13.8.2010, p. 1–5

Ecosystem Measures

Council Regulation (EC) No 1185/2003 of 26 June 2003 on the removal of fins of sharks on board vessels. Official Journal L 167, 4.07.2003. p.6

Council Regulation (EC) No 812/2004 of 26 April 2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98. Official Journal L 150, 30.04.2004. p.12

Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears. Official Journal L 201 30.07.2008 P. 8.


APPENDIX 2: Main time / area closures adopted as part of the technical measures framework

Table 22 : Inventory of the main time area closures in the legislation. Note that the objective of the closure is not always explicit in the legislation and it has been inferred from SGMO (2007)

Main focus Area Duration Objective Derogations

Herring (Art. 20 of Reg. (EC) 850/98

13 different areas in the North Sea and North Atlantic

Variable according to area : from 2 weeks every third year to several months, including all year for certain areas

Protection of nursery grounds Protect spawning aggregation

Vessels are allowed to retain quantities of herring provided they do not exceed 5% of total catches In two areas, small vessels less than 12.2 m based nearby can target herring with driftnets

Sprat (Art. 21 of Reg. (EC) 850/98)

3 different areas Two 3 month period (2 areas) and one 3 month period (one area)

Restriction of fishing for sprat to protect herring (sprats are targeted with small mesh trawls)

Vessels may retain no more than 5% sprat onboard

Mackerel (Art. 22 of Reg. (EC) 850/98)

1 area SW the British Isles

Permanent Conservation of mackerel

Vessels are allowed to have max. 15% of mackerel onboard Vessels using passive gears Vessels using towed bottom gears having at least 75% of non-pelagic species onboard

Norway Pout (Art. 27 of Reg. (EC) 850/98)

1 area in the North Sea Permanent Restriction of fishing for Norway pout to protect roundfish species (N. pout is targeted with small mesh trawls)

Vessels using towed gears are allowed to retain quantities of Norway Pout provided they do not exceed 5% of total catches

Hake (Art. 28 of Reg. (EC) 850/98)

2 areas off the Iberian Peninsula

Permanent Restriction on fishing for hake with towed gears

Passive gears allowed

Hake (Art. 5 of Reg. (EC) 494/2002, Reg. (EC) 1162/2001)

2 areas South of Ireland and in the Bay of Biscay

Several months (variable)

Protection of juvenile hake

Towed gears more than 100 mm (Bay of Biscay) mesh size Towed gears 70 mm but having mesh square panel inserted Seine and Beam trawl 50-99 mm Fixed nets (gillnets) with small mesh size (e.g. < 100 mm)

Plaice (Art. 29 of Reg. (EC) 850/98)

1 area (plaice box) Protection of plaice nursery area

Vessels less than 8 m using towed gears (within 12 miles) Listed vessels less than 221 KW using towed gears (beyond 12 miles) Trawlers with mesh sizes greater than 80 mm / 100 mm with maximum 5 % plaice an sole

Sandeels 1 area in the East of Permanent Ensure breeding Experimental fishing for sandeels



(Art. 29a of Reg. (EC) 850/98)

Scotland success of seabirds kittiwakes

Nephrops (Art. 29b of Reg. (EC) 850/98)

2 areas off the Iberian peninsula

One 3 month closure, one 4 month closure

Vessels fishing with creels and bottom towed gears that do not target Nephrops as measured by the max. % of Nephrops allowed onboard

Haddock (Art. 29 c of Reg. (EC) 850/98)

Rockall (West Scotland in VIb)

Permanent Conservation of haddock (protection of juveniles)

Vessels targeting haddock with longlines

Cod, haddock and whiting in VIa (Art. 29d of Reg. (EC) 850/98)

West of Scotland (part of VIa) - Windsock

Permanent Conservation of stocks In certain subareas of the polygon defined in the regulation : Inshore vessels using static gears Gillnets of large mesh size Towed gears using mesh sizes less than 55 mm having small pelagic as catches Trawlers having large mesh sizes (100 mm +) with requirements of square mesh panels / sorting grids for targeting certain species

Cod in area VII (Art. 29e of Reg. (EC) 850/98)

Celtic Sea conservation area

2 months Conservation of cod (protection of spawning aggregation)

Inshore static nets, dredges, handlines Towed gears using mesh sizes less than 55 mm having small pelagic as catches

Cod in VIIa (Art. 34a of Reg. (EC) 850/98 and Reg. (EC) 2549/2000)

One area in the Irish sea

2.5 months Conservation of cod (protection of spawning aggregation)

Within sub-areas of the zone closed, use of demersal trawls targeting Nephrops with 70-99 mm mesh size and equipped with separator panels or sorting grids

Blue ling in area VI (Art. 29f of Reg. (EC) 850/98

Edge of Scottish shelf Edge Rosemary bank

3 months Blue ling conservation (spawning aggregations)

Any gear providing the vessel has less than 6 tonnes of blue ling onboard

Pelagic species (Art. 38 of Reg. (EC) 850/98

Skagerrak 2 days weekly (week-ends)

Limitation of fishing effort on pelagic species

Any vessel providing it has no herring, mackerel or sprat onboard

Shetland box (Art. 18 of Reg. (EC) 2371/2002

1 area Permanent Biologically sensible species

Vessels less than 26 m Vessels greater than 26 m having special authorisation to access Fishing for Norway pout or blue whiting permitted

Vulnerable deep sea habitats (Art. 34d of Reg. (EC) 850/98

11 areas around seamounts in NEAFC regulatory area

Permanent Habitat protection Pelagic fishing

Vulnerable deep sea habitats (Art. 34e of Reg. (EC) 850/98

5 areas in Irish / UK EEZ

Permanent Habitat protection Authorised pelagic fishing vessels

Vulnerable deep sea habitats

1 area (El Cachucho) south Bay of Biscay

Permanent Habitat protection Pelagic fishing Demersal fishing vessels having historical records and duly



(Art. 34f of Reg. (EC) 850/98

authorised

Vulnerable deep sea habitats (Art. 30.5 of Reg. (EC) 850/98)

2 areas (Azores / Madeira & Canarias)

Permanent Habitat protection Pelagic fishing Nets set a depth less than 200 m Hook and line


APPENDIX 3: Summary of fishermen organisations responses to perception questionnaire

Technical measures bring conservation benefits

Number of responses

Strongly agree

Agree Neutral Disagree Strongly disagree

Don’t know

12 0% 58% 17% 17% 8% 0%

EU technical measures have proved difficult to implement

Number of responses

Strongly agree


Don’t know

12 25% 42% 8% 25% 0% 0%

Mesh sizes are properly complied with

Number of responses

Strongly agree


Don’t know

12 17% 67% 0% 17% 0% 0%

The decision-making process takes into consideration fishermen knowledge

Number of responses

Strongly agree


Don’t know

12 0% 8% 8% 50% 33% 0%

Fishermen should be associated in the definition of technical measures

Number of responses

Strongly agree


Don’t know

10 80% 20% 0% 0% 0% 0%

Technical measures should have clear objectives in terms of benefits for the stocks

Number of responses

Strongly agree


Don’t know

11 36% 55% 0% 0% 0% 9%


If fishermen were given clear objectives in terms of discards reduction, they would be able to adapt their gears without a need for prescriptive approach.

Number of responses

Strongly agree


Don’t know

11 55% 36% 9% 0% 0% 0%

Use of more selective fishing gears should be rewarded through financial transfers or through increased fishing possibilities

Number of responses

Strongly agree


Don’t know

10 50% 50% 0% 0% 0% 0%


APPENDIX 4: Information on MCS supporting text in Section 0

Table 23: Inspection means across the Community

Number of

dedicated offshore inspection vessels

Number of dedicated inshore inspection vessels

Number of fisheries surveillance aircraft

Number of land based inspectors

Belgium 3 1 1 4

Denmark 3 1 0 111

Germany 3 20 36

Netherlands 2.2 5 3 56

UK 13 4 175

France 23 88 17 130

Ireland 7 1 2 107

Portugal 26 67 5 264

Spain 70 6 72

Estonia 0 4 0 16

Finland 6 60 13 15

Latvia 2 16 14

Lithuania 1 1 5

Poland 2 3 0 25

Sweden 2 2 42

Cyprus 4 10

Greece 46 322 7 364

Italy 133 25 40

Malta 1 5 2 7

Slovenia 1 1

Source: MRAG et al unpublished report 2008


Table 24: Number of serious breaches of regulations by Member State, 2006 65

Note: Technical measures infringements are generally those listed under Code D.

65 Brussels, 4 November 2008 COM(2008) 670.


Table 25 Technical Measure related infringements detected by Danish control and enforcement activities between 2008 and 2012 in all areas excluding the Baltic Sea.

Source: Danish AgriFish Agency

Categories of infringements 2008 2009 2010 2011 2012 Total1.4. Gear/catch method restrictions 5 3 10 5 5 28A. 1.4.2.7 Other related to remaining of catch gear or method 1 1A.1.4.1 Illegal gear 2 3 9 4 4 22A.1.4.2.4 Keeping illegal gear on board 3 1 4A.1.4.2.6 Failure to comply with rules on pair/pool fishing 1 11.5. Area restrictions 2 3 13 2 3 23A.1.5.1 Fishing in conservation zone 1 1A.1.5.3 Fishing in gill or entangling net zone 1 1A.1.5.4 Prohibition to fish in area during nights, weekends etc 2 1 1 4A.1.5.5 Exclusion from area due to engine power 2 2A.1.5.6 Other prohibited or closed area 12 1 2 154.3. Illegal catch composition 7 10 11 11 27 66A.4.3.1 Missing target species 2 8 7 9 22 48A.4.3.2 Illegal bycatch 5 2 4 2 4 17A.4.3.3 Too large share of "unsortable" catch 1 1A.4.3.4 Illegal targetted fishery for herring for other purposes than the food industryA.9.1 Violation of delimitation of Danish fishery zone (12, 6, 4 and 3 nautical miles) 2 2A.9.1 Violation of delimitation of Danish fishery zone (12, 6, 4 and 3 nautical miles) 2 2Total 16 16 34 18 35 119


Table 26: Records of infringements recorded by France 2010-2012

Note: Code descriptors provided in Table 24 above

Category of infringement

Detected at sea

Detected on land

TOTAL 2010

Detected at sea

Detected on land

TOTAL 2011

Detected at sea

Detected on land

TOTAL 2012

A1 63 19 82 76 12 88 78 9 87C1 58 8 66 66 13 79 91 12 103C2 6 0 6 4 1 5C3 61 6 67 22 6 28 26 1 27D1 72 26 98 73 18 91 56 12 68D2 9 0 9 4 1 5 9 3 12D3 0 2 2 2 0 2 D4 97 18 115 92 127 219 76 15 91D5 74 10 84 82 3 85 89 7 96D6 24 29 53 20 19 39 14 18 32D7 1 2 3 0 1 1 0 1 1E1 176 73 249 154 83 237 150 54 204E2 3 2 5 7 0 7 5 0 5E3 11 5 16 14 1 15 21 6 27E4 3 4 7 6 2 8 5 1 6F1 9 20 29 7 20 27 3 25 28Total 667 224 891 625 306 931 627 165 792


Table 27: Records of infringements detected in Scotland (2009 - 2013)

Source: Marine Scotland

Infringement 2009 2010 2011 2012 2013 Avg. %ECLD - CAT6 INCORRECT / FAILURE TO RECORD SPECIES - LOG BOOK (INC. 10% MOT) 149 349 641 635 206 444 28%CODU - CAT5 EXCEEDING 8% LOGBOOK TOLERANCE 56 256 141 114 21 142 9%ECLO - CAT6 LATE SUBMISSION OF LANDING DECLARATION 150 131 112 140 36 133 8%ECLA - CAT6 FAILURE TO CARRY LOG BOOK 106 106 7%UKCF - OFFENCE - LICENCE CONDITIONS (E.G. POTTING BOX) 74 84 116 143 55 104 7%ECLN - CAT6 LATE SUBMISSION OF LOG BOOK 63 81 100 34 23 70 4%UKCG - OFFENCE - UK QUOTA (INC. CLOSED FISHERY TO UK VESSELS) 24 102 85 57 1 67 4%ECLL - CAT6 FAILURE TO SUBMIT A LOG BOOK / LOG SHEET 47 63 6 55 3%UKCL - OFFENCE - LICENCE CONDITIONS - DESIGNATED PORTS (NOT RECOVERY SPECIES) 5 109 71 19 2 51 3%ECLX - LOG BOOK OFFENCES - OTHER 46 75 72 11 12 51 3%ECFA - CAT4 UNDERSIZE FISH- RETAINED - STORED - OFFERED FOR SALE ETC. 7 58 76 40 7 45 3%HKEK - CAT5 EXCEEDING 8% LOGBOOK TOLERANCE (HAKE) 15 68 43 23 37 2%ECCX - CAT2 CATCH - OTHER OFFENCES (INC. QUOTA REG. BY-CATCH OFFENCES) 1 21 47 31 11 25 2%CODS - CAT5 NO PRIOR NOTIFICATION OF CATCH (ENTRY TO PORT - >1 TONNE) 20 53 23 3 25 2%ECMA - CAT1 LABELLING 9 18 45 23 24 1%ECXJ - CAT6 INCORRECT / FAILURE TO GIVE PRIOR NOTIFICATION OF ARRIVAL INTO PORT 19 9 19 1%ECCF - CAT4 FISHING FOR / RETAINING SPECIES - NO QUOTA ALLOCATED / EXHAUSTED 7 20 20 27 1 19 1%ECLE - CAT6 INCORRECT / FAILURE TO RECORD SPECIES - LANDING DECLARATION 14 20 21 17 18 1%UKAX - UK LEGISLATION - OTHER OFFENCES 5 23 20 19 17 1%ECGB - CAT3 MESH SIZE - REQUIRED % OF TARGET SPECIES - TOWED GEAR 5 19 31 11 1 17 1%PELC - CAT5 EXCEEDING 8% TOLERANCE IN THE LOGBOOK 14 20 14 11 2 15 1%ECEI - FAILURE TO TRANSMIT MANUAL FISHING REPORTS DAILY/AT SPECIFIED TIMES 13 1 13 1%SOLD - CAT5 EXCEEDING 8% LOGBOOK TOLERANCE RWCS 3 27 11 9 13 1%ECLF - CAT6 INCORRECT / FAILURE TO RECORD CATCH LOCATION 8 11 8 1%CODA - CAT5 FAILURE TO CATCH 30% NEPHROPS IN NORTH SEA (80-109MM) 8 2 8 1%ECSF - CAT6 FAILURE TO PROVIDE MANUAL POSITION REPORTS WHEN REQUESTED 3 2 2 20 2 7 0%RBSB - REG BUYER - FAILURE TO COMPLY WITH CONDITIONS OF REGISTRATION 1 11 1 6 0%PELB - CAT5 FAILURE TO GIVE ACCURATE 4 HOUR NOTIFICATION OF LANDING 12 4 2 6 0%CODB - CAT5 FAILURE TO MEET CATCH COMPOSITION (110-119MM) SAITHE 5 5 0%ECSE - CAT6 PROCEEDING TO SEA WITHOUT AUTHORISATION 3 1 2 13 2 5 0%ECEJ - UNAUTHORISED DEPARTURE FROM PORT WITH NON-FUNCTIONING ELOG 1 8 5 0%DSSE - EXCEEDING 8% LOGBOOK TOLERANCE 4 4 1 7 4 0%UKCA - FISHING WITHOUT THE AUTHORITY OF A LICENCE 4 2 6 1 4 0%PELD - CAT5 FAILURE TO WEIGH FISH ON LANDING 3 3 0%HKEI - CAT5 NO PRIOR NOTIFICATION OF CATCH (ENTRY TO PORT) (HAKE) 2 4 1 2 0%ECLQ - CAT6 FAILURE TO PROVIDE SALES NOTES 2 1 3 1 2 0%ECLG - CAT6 INCORRECT / FAILURE TO RECORD GEAR TYPE 2 1 2 0%ECSA - CAT6 FAILURE TO MANTAIN/HAVE ON BOARD A FULLY OPERATIONAL SVMS 2 2 0%ECSD - CAT6 INTERFERING WITH TRANSMISSION OF SATELLITE POSITION REPORTS 1 2 2 0%ECLM - CAT6 FAILURE TO SUBMIT A LANDING DECLARATION 1 1 0%ECLT - CAT6 INACCURATE / FAILURE TO PROVIDE TRANSPORT DOCUMENTATION 1 1 0%PELT - FAILURE TO PROVIDE PELAGIC TRANSPORT DOCUMENTS 1 1 0%RBSM - REG BUYER (OTHER UK ADMINISTRATION) - ACTIVE BUT NOT APPROVED IN SCOTLAND 1 1 0%SOLB - CAT5 TRANSPORT: FAILURE TO PROVIDE COPY OF L/DEC (IN EXCESS OF 50KG) 1 1 0%UKEC - OFFENCE - FEPA: OTHER THAN LICENCE 1 1 0%UKCH - OFFENCE - VESSEL QUOTA (OVER QUOTA CASES) 5 0 0%TOTAL 680 1,552 1,749 1,670 437 1,583 100%


Table 28: Technical measures infringements in Ireland, 2010 to 2013

Source: SFPA

Offence Date EU Regulation

Vessel Nationality Location Comments

08/02/2010 850/98 Technical Measures GBR Port Prohibited species - porbeagle

09/04/2010 494/2002 Hake Recovery ESP At Sea

USING TOWED GEAR OF MESH SIZE 55-99MM AND RETAINED ON BOARD HAKE IN EXCESS OF 20% CONTRARY TO EC REG 494/2002

LOGBOOK NOT COMPLETED CORRECTLY IN THAT MESH IN USE WAS NOT WHAT RECORDED CONTR TO EC REG 2807/83

05/05/2010 850/98 Technical Measures IRL Port MLS05/05/2010 850/98 Technical Measures IRL Port MLS04/01/2011 494/2002 Hake Recovery ESP At Sea >20% hke01/01/2011 850/98 Technical Measures IRL Port Catch composition boarfish11/04/2012 850/98 Technical Measures ESP At Sea K mesh net10/04/2012 850/98 Technical Measures GBR At Sea K mesh net18/01/2012 850/98 Technical Measures IRL At Sea Illegal Net Attachment13/03/2012 850/98 Technical Measures IRL At Sea Undersize mesh13/03/2012 850/98 Technical Measures IRL At Sea K Mesh Net15/05/2012 850/98 Technical Measures ESP At Sea Net construction K Mesh22/05/2012 850/98 Technical Measures FRA At Sea K Mesh Net07/06/2012 850/98 Technical Measures Non Port Undersize Whelk have been returned by the operator 13/06/2012 850/98 Technical Measures IRL At Sea Mesh size Catch composition20/05/2012 850/98 Technical Measures IRL At Sea Mesh size Catch composition15/05/2012 850/98 Technical Measures IRL At Sea Mesh size Catch composition15/05/2012 850/98 Technical Measures GBR At Sea Mesh size Catch composition15/05/2012 850/98 Technical Measures GBR At Sea Mesh size Catch composition18/05/2012 850/98 Technical Measures IRL At Sea Leaving port without a fully functioning ERS16/05/2012 850/98 Technical Measures BEL At Sea Retaining in exces of 5% Crab Claws26/07/2012 850/98 Technical Measures IRL At Sea Illegal attachments blinders, 08/08/2012 850/98 Technical Measures IRL At Sea Mesh size Catch composition06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk06/06/2012 850/98 Technical Measures IRL Port MLS Whelk27/07/2012 850/98 Technical Measures IRL Port MLS Whelk24/07/2012 850/98 Technical Measures GBR At Sea Use of gear - simultaneous use of gear mesh sizes25/08/2012 850/98 Technical Measures IRL Port MLS Lobster

05/12/2012 850/98 Technical Measures ESP At SeaTechnical measures - mesh , twine thickness, failure to facilitate -boarding ladder

02/12/2012 850/98 Technical Measures FRA At Sea Technical measures Bar lenghts and twine thickness23/10/2012 850/98 Technical Measures FRA At Sea Mesh with bars of unequal length.29/03/2013 850/98 Technical Measures IRL Port Retention of undersize Lobster23/10/2012 850/98 Technical Measures FRA At Sea Mesh size additional information required25/05/2013 850/98 Technical Measures IRL Port Hi Grading


APPENDIX 5: List of organisations met during Member States visits

NetherlandsManaging Authority Min. of Economic Affairs

Control Authority Algemene Inspectiedienst (AID) Scientific institute IMARES

Professional associations Nederlandse vissersbond

Pelagic Freezer Association

Other Pelagic RAC United Kingdom - England

Managing Authority DEFRA Control Authority MMO Scientific institute CEFAS Professional associations National Federation of Fishermen’s Organisations

North Sea PO United Kingdom - Scotland

Managing Authority Marine Scotland Policy

Control Authority Marine Scotland Compliance

Scientific institute Marine Lab (part of Marine Scotland) Professional associations SFO

Scottish Whitefish Producers Association

Scottish Fishermen's Federation

Other North Sea RAC Denmark

Managing Authority AgriFish Agency Control Authority AgriFish Agency Scientific institute DTU Aqua Professional associations Danish Fishermen’s AssociationOther SINTEF

FranceManaging Authority DPMA Control Authority Centre National de Surveillance des Pêches (CROSS ETEL) Scientific institute IFREMER Professional associations PMA

SpainManaging Authority Ministry of the Environment, Rural and Maritime Affairs - General

Secretariat for the Sea and Autonomous Communities Control Authority Ministry of the Environment, Rural and Maritime Affairs - General Sub-

direction of Fisheries Inspection Scientific institute IEO, Vigo

AZTI – Research Division in Sukarrieta Professional associations Federación Nacional de Cofradías de Pescadores

Confederación Española de Pesca Other CETMAR

IrelandManaging Authority Dep of Ag Fish and Food

Control Authority SFPA

Naval Service of Department of Defence


Scientific institute BIM Professional associations Killybegs Fishermen's Organisation

Irish SW Fish Producers Organisation Irish Fishermen's Federation

Other North Western Waters RAC Belgium

Managing and control authority Flanders Visserig Scientific institute ILVO Professional association Redercentraal

VOLUME 2

Final report of the prospective evaluation of technical measures regulations

DG MARE




dimension

Prospective Evaluation Report

Final report

7 July 2014


Issue ref: Prospective evaluation final report (revised v2)


Prepared by: BC/GM/TP/WM


Contents

Introduction ............................................................................................................................................. 1

1 General Context .............................................................................................................................. 2

1.1 What are technical measures, and what are they for? ........................................................... 2 1.2 Overview of the legislative framework and ongoing developments ........................................ 4

1.2.1 Past and current technical measures regulations ........................................................... 4 1.2.2 Recent evolution of the institutional context and likely effects ........................................ 6

1.3 Main issues in relation with the current technical measures regulations ................................ 8 1.3.1 Extent of the problem of unwanted catches in the North Sea and the North East Atlantic 9 1.3.2 Are the technical tools to reduce unwanted catches available? ................................... 11 1.3.3 Can the industry be incentivised to adopt more selective fishing practices? ................ 12

2 Problem definitions ........................................................................................................................ 18

2.1 Description of the main problems.......................................................................................... 18 2.2 Underlying drivers of the problems ....................................................................................... 28 2.3 Who is affected by the problems? ......................................................................................... 30 2.4 How would the problem evolve, all things being equal? ....................................................... 33

3 Does the EU have the right to act? ............................................................................................... 35

4 What are the policy objectives? .................................................................................................... 35

5 Policy options ................................................................................................................................ 37

6 Analysis of impacts ....................................................................................................................... 41

6.1 Methodological remarks ........................................................................................................ 41 6.2 Economic impacts ................................................................................................................. 42 6.3 Social impacts ....................................................................................................................... 48 6.4 Environmental impacts .......................................................................................................... 51 6.5 Administrative costs .............................................................................................................. 53

7 Comparing the options .................................................................................................................. 59

7.1 In terms of effectiveness, efficiency, coherence and acceptability ....................................... 59 7.1.1 Effectiveness ................................................................................................................. 59 7.1.2 Efficiency ....................................................................................................................... 62 7.1.3 Coherence ..................................................................................................................... 63 7.1.4 Acceptability .................................................................................................................. 70 7.1.5 Summary ....................................................................................................................... 73

7.2 In terms of the magnitude of the impacts on sustainability and administrative costs ........... 75 7.3 In terms of risks ..................................................................................................................... 81 7.4 Conclusion: the preferred option ........................................................................................... 84

8 Monitoring and evaluation ............................................................................................................. 85

REFERENCES ...................................................................................................................................... 87

Acronyms/Terminology

AC Advisory Committee (as per Annex III of Reg (EU) 1380/2013 on the CFP) CFP Common Fisheries Policy DCF Data Collection Framework EP European Parliament EFCA European Fisheries Control Agency EU European Union F Fishing mortality FAO Food and Agriculture Organisation of the United Nations FTE Full Time Equivalent FOCI Features of Conservation Importance GES Good Environmental Status ICES International Council for the Exploration of the Sea MS Member State MSF Marine Strategy Framework MSFD Marine Strategy Framework Directive MSY Maximum Sustainable Yield RAC Regional Advisory Councils SGMO Sub-Group on Management of Stocks STECF Scientific, Technical and Economic Committee for Fisheries TAC Total Allowable Catches TFEU Treaty on the Functioning of the European Union

Executive Summary Study in support of new EU Technical Measures Framework Page i

Executive Summary

Background for the prospective evaluation of technical measures regulations

For the North East Atlantic and the North Sea, current technical measures are described in Council Regulation (EC) No. 850/98 which has been amended no less than 12 times since its adoption. In addition to this central regulation, technical measures of relevance for the North Sea and the Atlantic are also found in a number of other regulations including the annual TAC & quotas Regulations for many years as a mixture of regionally specific measures and derogations from the provisions of Council Regulation (EC) No. 850/98 up until entry into force of the Treaty of Lisbon (TFEU).

In 2004, the Council recommended that the technical measures for the Atlantic and the North Sea be simplified and also regionalised reflecting the creation of the Regional Advisory Councils (RACs) in the 2002 reformed Common Fisheries Policy (CFP). Technical measures regulations were also identified as a fundamental test case for simplification under a Commission Action Plan 2006-2008 on simplification of the CFP. In 2008, the European Commission came up with a new proposal for technical measures for the North East Atlantic and the North Sea. This was accompanied by an impact assessment, but a failure to reach a political agreement meant that this proposal was not adopted and the measures introduced in 1998 still remain in force.

This report concentrates on the prospective evaluation of different reform options of the technical measures regulations. It follows a retrospective evaluation that has been concluded mid-2013. The prospective evaluation which follows the guidelines for impact assessment published by the Commission has been supported mainly by (i) a review of the existing scientific and technical literature in relation to technical measures from specific research programmes as well as evaluations carried out by STECF and ICES working groups, (ii) the organisation of discussions with managing authorities, control authorities, scientific institutes and fishermen’s organisations in the Member States having significant fishing interests in the North East Atlantic and in the North Sea (Belgium, Denmark, France, Ireland, Netherlands, Spain, United Kingdom), and (iii) an analysis of EU relevant policy and legislative documents backed by discussions with European Commission representatives and with the European Fisheries Control Agency (EFCA).

Main lessons from the retrospective evaluations of technical measures regulation

The main strengths identified by the retrospective evaluation are that technical measures are relevant to manage fisheries and contribute to the objectives of marine environmental legislation. By defining how, when and where fishing vessels can interact with the marine environment; technical measures constitute a relevant management tool in coherence with the overarching objectives of EU policy. The ex post evaluation also identified that although the technical measures legislation is seen by most stakeholders as too complex and difficult to understand, it contributes to establishing a level playing field across EU fisheries by defining common rules applicable to all fishing vessels exploiting the same resources in the same areas. This merit is widely acknowledged by all stakeholders interviewed in the context of this evaluation.

The main weaknesses identified by the retrospective evaluation are that the current technical measures framework is not effective in achieving the overarching objective of reducing unwanted catches. Fishing vessels using legal gears as prescribed by the regulation still catch, and are legally obliged to discard juvenile fish below minimum landing sizes or marine species of commercial size in excess of catch composition rules associated with the use of certain gears, or for which the vessels have no fishing opportunities (lack of quota). Unselective fishing undermines the overall objective of the CFP to make fishing sustainable - environmentally, economically and socially; the objectives of the MSFD to achieve a good environmental status for the marine ecosystem by 2020; and the Europe 2020 objective of achieving robust economic performance of the fishing industry, inclusive growth and enhanced cohesion in coastal regions.

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Concerning ecosystem protection, the few technical measures adopted so far to avoid catches of protected species have also largely failed to fully meet their objectives. The technical measures regulations could include some closures around vulnerable deep-sea ecosystems (deep-sea reefs), but has not yet addressed ecosystem protection of other types of habitats in offshore waters.

In terms of administrative costs, current technical measures place a high burden on Member States’ control authorities with a need to control compliance mostly in situ at sea, using sea-based control means that are costly. Given the relatively low effectiveness of technical measures to support conservation objectives, the investment and operational costs associated with controlling technical measures appear to be out of line.

The retrospective evaluation also showed that technical measures are not well accepted by fishermen. The dominant feeling expressed by industry is that they are not sufficiently involved in the definition of technical measures, the measures resulting from the decision-making process are not sufficiently based on the evidence of likely impacts and generally the outcome is politically driven. Existing measures are considered largely ineffective to support conservation of stocks. Low acceptance results in low levels of compliance, and poor performance of technical measures compared to their expected positive impacts.

Problem definition

On the basis of the lessons from the retrospective evaluation, the following problems to be solved by a reform have been identified for the technical measures regulations. The next table shows the problems as well as the drivers behind these problems and their effects.

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Problem Driver Effects Lack of flexibility

Technical measures cannot be adapted to changing conditions or requirements in a timely and proportionate manner

The current legal architecture for designing and adopting technical measures is time-consuming and burdensome

Undermines effectiveness of technical measures (incapacity to swiftly adapt measures to changing patterns in stock distribution, emerging requirement for ecosystem protection or international obligations )

Prescriptive nature The technical measures regulations have become overly prescriptive and detailed. The prescriptive nature of technical measures regulations also imposes a high burden on the control authorities of Member States.

The current management approach to technical measures focuses on the technical design characteristics of measures rather than on desired outputs, with too many rules trying to regulate too many aspects of fishing operations.

Undermines effectiveness of the measures. Creates legal obstacles for the development of more selective fishing practices. Increase administrative costs (in particular, high costs of control) and associated administrative burden on MS Control authorities and on the industry to keep up with a complex legislation.

Insufficient involvement of fishermen in the decision making process The decision making process is not fully transparent and does not take into account fishermen’s knowledge

Technical measures are adopted through ordinary legislative procedure following a top-down approach

Undermines acceptability of the measures by the industry, undermining compliance Undermines effectiveness of technical measures (industry may have better technical input) Increases control burden

Poorly defined objectives and success criteria From a political perspective, technical measures often part of a negotiation strategy, potentially leading to dilution of the final measures agreed or measures introduced.

Perceived negative impacts on the industry (short-term losses of catches) and the desire of managers to broker a deal

Undermines effectiveness of technical measures (technical measures adopted are suboptimal)

Stakeholders affected

The problems affect a number of stakeholders. The EU fishing industry, including upstream and downstream related businesses has key interests in the reform of technical measures regulations. The industry, which is composed in majority of micro-SMEs, aspires to maintain profitability and employment from exploitation of well managed resources, to ensure a level playing field across EU fisheries and to have greater involvement in the decision-making process. Member States authorities compose a second group of stakeholders affected with interests in the reform relating to the development of a practical management framework of technical measures well supported by the industry, in particular to ease the administrative burden stemming from their duty to enforce and control the rules. The civil society represented by NGO specialising on environmental issues represents a group of stakeholders has also an interest in reformed technical measures regulations for implementation of environmentally friendly fishing practices. Consumers looking for fisheries products caught sustainably form also a group of stakeholders concerned by the reform, as well as recreational fishermen concerned by the sustainability of the stocks they target.

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The policy objectives

In line with the reformed CFP and other overarching EU policies, the general objectives of technical measures regulations are (i) to support the objectives of the reformed CFP, in particular its main aim to bring all stocks to MSY levels, (ii) to support the objectives and targets for Good Environmental Status achieved by 2020 as established under the Marine Strategy Framework Directive and other environmental legislations such as the Birds and Habitats Directives, and (iii) to contribute to the Europe 2020 flagship initiative, in particular its resource-efficiency component.

The following table specifies the objectives which are directly related to solving the problems, whilst contributing to the general objectives presented above.

Problems Specific objective for the reform of the technical

measures regulations

Lack of flexibility

Technical measures cannot be adapted to changing conditions or requirements in a timely and proportionate manner.

Provide for a more flexible legal framework for adopting technical measures.

Prescriptive nature The technical measures regulations have become overly prescriptive and detailed.

Move from a prescriptive approach to a result-based management approach by setting objectives in relation with the outputs (e.g. exploitation patterns of stocks) of technical measures rather than on the technical design characteristics of the measures (i.e. the inputs).

The prescriptive nature of technical measures regulations also imposes a high burden on the control authorities of Member States.

Simplify and streamline the technical measures regulations and verify controllability when designing the measures.

Insufficient involvement of fishermen in the decision making process The decision making process is not fully transparent and does not take into account fishermen’s knowledge.

Ensure that a transparent and participatory approach is taken to the definition and specification of technical measures before they are introduced.

Poorly defined objectives and success criteria From a political perspective, technical measures often part of a negotiation strategy, potentially leading to dilution of the final measures agreed or measures introduced without any scientific basis.

Assess the impacts of technical measures in conjunction with other conservation measures prior to their adoptions and define success criteria against which they can be evaluated

Policy options

Five policy options, including the baseline situation, have been identified to support a reform of the technical measures regulations.

Option 1 Baseline situation

This option is developed under the new governance structure provided for under the CFP reform, but where regionalisation is generally not the preferred choice of the stakeholders. Under this option, the technical measures regulations are fully aligned and synchronised with the landing obligation and other obligations under the new CFP. No further substantial changes (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen. The existing regulatory framework would remain under co-decision procedure (with the exception of the delegated or implementing Acts which may be developed under

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the Regulation). Any future amendments to the Regulation would be agreed in the ordinary legislative procedure.

Option 2 : Consolidation and simplification of technical measures rules

In addition to the consolidation as described under the baseline scenario described under option 1, this option foresees additional simplification of the current technical measures rules. This would consist of firstly of a ‘cleaning up’ of Council Regulation (EC) No. 850/98 and other technical measures Regulations to delete redundant articles and measures, recuperate full internal consistency of the different legal instruments, and incorporation of recent amendments and changes. Secondly, under this option the whole spectrum of existing Regulations would be consolidated in one single Regulation (in as far as legally possible), eliminating a series of partial Regulations or legal provisions on technical measures in other Regulations.

No further substantial changes (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen under this option. As with the baseline situation (option 1), the regulation would remain under co-decision procedure (with the exception of the delegated or implementing Acts which may be developed under the Regulation). Any future amendments to the Regulation would be agreed in the ordinary legislative procedure.

Option 3 : Splitting common and regional rules

This option presents a change in the legal structure that should allow for adequate adaptation of the rules to new requirements and conditions, on a regionally specific basis. This option assumes that regionalisation of technical measures under multiannual plans will be a relatively slow process, as described in the baseline situation (option 1). In addition to the work foreseen under the baseline situation and option 2, the proposed technical measures Regulation would contain a legal framework divided in two parts: a) a set of common rules and measures applicable to all fishermen in the corresponding Union waters and b) Commission empowerment to adopt specific, regional or fisheries-related measures – on a regional basis, under Commission Acts (delegated and/or implementing Acts).

The Regulation would be adopted under the ordinary legislative procedure. The proposal would consist of the relevant common rules. The Regulation also refers to the regionally needed measures –for which the Commission then receives an empowerment to amend, supplement or elaborate the technical details through Commission Acts.

As with the baseline situation and option 2, the regulation would remain under co-decision procedure, but the importance of (responsive) adaptability is emphasized by means of ample options for adjustments through Commission (delegated and/or implementing) Acts. Any future amendments to the Regulation would be agreed either in the ordinary legislative procedure, or where applicable, in Commission Acts.

Option 4 : Technical measures framework

This option responds to the new decentralised governance option under the new CFP. The new technical measures would be the direct vehicle for regionalisation. A framework Regulation would be adopted under the ordinary legislative procedure. This Regulation would be considerably slimmed down compared to the current Regulations, thus achieving simplification, and containing a limited set of measures, rules, standards and requirements – mainly those which would not be expected to change over time and which are common to all sea basins (e.g. definitions, prohibited gears or fishing methods, conservation reference sizes). It could also include some basic standards such as reference

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gears, selectivity baselines or exploitation patterns. Relevant permanent ecosystem measures would also be part of the framework Regulation.

Besides these common rules, the Regulation would provide for the legal architecture for regionalisation. Member States concerned can develop joint recommendations. Therefore the technical measures framework under this option needs to allow for alteration, amendment and derogation when these technical measures are placed in the regional plan or conservation measures. This is done via the regionalisation procedure, leading to adoption of delegated or implementing Acts by the Commission for this purpose.

Under this option, regionalisation would progressively lead to agreement on technical measures at regional level and included in Commission Acts emanating from the multiannual plans, which may in part include some results-based management.

Option 5 : Technical measures through regionalisation

This option combines the concept of regionalised governance and a full results-based approach. It assumes a speedy development of regionalised, tailor-made multiannual management plans for fisheries shortly after entry into force of the new CFP. It assumes furthermore that stakeholders already have sufficient impetus to identify the appropriate methods and techniques front the combination of existing and new, concrete objectives, and expected results (fishing at MSY level, spawning stock size, no discarding, clear time frames for achieving targets, remedial actions when targets are not met, no fleet capacity increases, obligations stemming from environmental legislation).

This combination would do away with the need for a co-decided technical measures regulation, even in a minimised form. Technical measures would in the majority be established as part of the regionalised multi-annual plans and regionally specific environmental and ecosystem related measures. All technical measures would ultimately be internalised into the plans – which are expected to cover all fisheries in the corresponding waters.

In this option the logical solution is to do away with the current EU technical measures Regulations and not replace it by any new framework. There would therefore be no proposal for a - decision Regulation adopted under the ordinary legislative procedure under this option – technical measures would be either directly included in multiannual plans (under the ordinary legislative procedure), and/or adopted by the Commission under regionalised empowerment to do so under procedures defined in Art. 18 of the CFP basic regulation. However, at any time the Commission would have the right to act if the measures fail to meet the overarching objectives of the CFP.

The conceptual shift in governance arrangements and the range of technical measures in place, moving from the baseline situation (option 1) through to option 5, is presented in the figure below.

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Assessment of the impacts of the different options

The assessment of the impacts has been conducted mostly on a qualitative basis. The main reason is that the different options present different governance structures for the specification and implementation of technical measures and the legal architecture that would be in place, rather than a specification of different technical measures that might be expected under the different options. Crucially, it cannot be known in advance how the different governance options, and the possibilities they provide for specification of different technical measures, might actually translate under the different options into changes in the detailed content of technical measures compared to the baseline situation. The second issue is that it is impossible to distinguish/isolate the impacts of technical measures from other CFP conservation measures that will be in place in the future, and in particular from the impacts of the move to the MSY conservation objective. For example, there is no way to determine whether any potential change in stock status might result from a specific technical measure, as opposed to from output management measures such as total allowable quotas, which will also be in place.

Option 2 is likely to have similar economic, social and environmental impacts compared to the baseline situation. This is a logical consequence of the lack of effectiveness of this option in addressing the problem of avoidance of unwanted catches and of protection of the broader environment from interactions with fishing gears.

Options 3 to 5 are assessed to have comparable positive economic, social and environmental impacts compared to the baseline scenario. In particular, it can be expected from these three options that the

Option 1: Baseline situation

Option 2: No use of regionalisation, some simplification of technical

measures regulations

Option 3: Minimal use of regionalisation, splitting common

and regional rules

Option 4: Extensive of use of regionalisation, simplified and minimal framework regulation, reduced technical measures

Option 5: No technical measures in framework regulation (objective

based management)

Importance and level of details of technical

measures in Council / European Parliament Regulations

Change from the status quo

and move towards

increased regionalisation

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industry and the Member States will be able to adapt fishing practices to reduce catches of unwanted species subject to the landing obligation in the first place, and to ease the transition toward MSY objective. The possibility to adapt technical measures on a regional basis will probably benefit the most fishing fleets involved in the beam trawls fisheries exploiting flatfish species and otter trawls targeting Nephrops and demersal fish in mixed fisheries environments in the North Sea and North East Atlantic. According to DCF economic data, these fleets represent ≈ 3 500 vessels and 17 500 FTE for a turnover in the region of EUR 1.7 billion (44% of total turnover of the fishing fleet operating in the North Atlantic and North Sea regions).

Regionalisation of technical measures under these three options will also provide Member States with a flexible legal architecture to adopt environmental measures supporting objectives under MSF Directive descriptors 1 (biological diversity), 4 (food web) and 6 (seafloor integrity) in particular when the problems to be addressed have a transnational dimension requiring uniform application of specific rules. Although not quantifiable, options 4 and 5 which consider full regionalisation of technical measures and promotion of objective based management are likely to produce more positive economic, social and environmental impacts than option 3 which retains to a certain extent a prescriptive approach with few incentives under a result based management.

Concerning administrative costs, option 2 may have no particular impact compared to current situation. In particular, the simplification effects of option 2 may only produce marginal results as previous experiences in reforming the technical measures regulations show that the potential for simplification is limited. Option 2 is likely to incur similar costs as those incurred by the various stakeholders under the baseline scenario. Administrative costs associated with control and enforcement of technical measures (estimated in the region of EUR 165 million per year, including EUR 112 million for seaborne and airborne surveillance) are expected to decrease under options 3 to 5. The rationale is that with greater regionalisation, technical measures will be better accepted by the industry, fully involved in their decision-making process, and better complied with. Regionalisation may also contribute to simplify the existing corpus of technical measures regulations through adoption, under regionalisation, of simpler and more streamlined measures. In this respect, option 4 and 5 which promote full regionalisation of technical measures may support higher decrease of enforcement and control expenses compared to option 3. By contrast, higher degree of regionalisation and greater responsibility for managing fisheries transferred to Member States under option 4 and 5 may contribute to increase administrative costs, in particular those associated with the negotiation of regional technical measures under the regionalisation framework established under Art. 18 of the CFP, and costs associated with provision of scientific data and advice for the identification and evaluation of technical measures to be recommended under this regional framework. The increase in administrative costs under these headings will probably be offset by the expected decreases of control and enforcement costs. Options 3 to 5, and in particular options 4 and 5 should contribute to decrease the administrative burden on Member States and on the fishing industry through dramatically simplified regulations compared to current regulations.

In terms of effectiveness, coherence and acceptability, the comparison of the options indicates clearly that option 2 does not correspond to the needs identified during the ex-post evaluation of the technical measures regulations, and lacks coherence with the objectives of the CFP. This option (or a similar approach) has already been proposed by the Commission in 2008 and discarded on the basis that it did not necessarily solve the problems associated with technical measures.

Options 4 and 5 receive the highest scoring among the different options considered. They have similar performances in terms of effectiveness and coherence (both internal and external). The main slight difference between these two options is that option 5 considers a radical move to regionalisation of technical measures by Member States to meet overarching conservation objectives set by the EU with no default measures or safeguards in place. It potentially moves to a results-based management approach with few if any detailed rules either at Union or regional level. Option 4 on the other hand,

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although acting as a vehicle for regionalisation and also potentially allowing a move towards a results-based management framework, does include the provision for transitional measures while regionalisation evolves. Both options 4 and 5 support dramatic simplification of the existing technical measures framework compared to the baseline situation.

Option 3 also shows benefits in terms of effectiveness, coherence and acceptability compared to the baseline scenario. The main aspect undermining the overall relevance of this option is that part of the technical measures regulations - the common rules - will remain under the ordinary legislative procedure which has proved, according to the ex-post evaluation, not to be adapted to changes in fisheries and stocks and not necessarily creating an incentive for compliance. The overall performance of this option actually depends on what will be appreciated as common measures and placed in a co-decision act during the negotiation process of the reformed technical measures regulations, and what will be classified as regional measures and incorporated into Commission acts, which can be amended expediently. Option 3 also represents a level of simplification but retains a centralised top-down approach, and does not promote an objective-based management approach of technical measures by the EU.

Preferred option

The assessment of the impacts of options 4 and 5 does not allow for the clear selection of a preferred option, as the evaluation of their respective performance compared to the baseline situation suggests very similar impacts.

However, consideration of the risks associated with these two options supports the identification of option 4 as the preferred option. Option 4 is less exposed to a risk of delayed regionalisation compared to option 5. Not least because it is a new CFP development that will need to be incorporated in current fisheries and environmental management practices, regionalisation will probably take time, in particular in regions where there is little previous experience of cooperation at Member State level. The risk of delayed regionalisation will be high in the short term (3-4 years), but over time, with experience and exchanges of good practices between regions, it can be expected to decrease. Similarly, the minimum EU requirements for technical measures considered under option 4 and not included under option 5, will contribute to lower short-term and long-term risks stemming from lower incentives for compliance by the industry. For these reasons, option 4 is also expected to better drive a reduction in administrative costs and burden compared to option 5 in the short to medium term.

Option 4 is therefore the preferred option. Option 5 could however be considered as a viable option in the future when Member States and the industry have a broader experience of the regionalisation process under an objective-based management framework.

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*

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Résumé

Contexte de l’évaluation prospective des règlements mesures techniques

Pour le Nord-Atlantique et la Mer du Nord, les mesures techniques actuelles sont décrites dans le Règlement du Conseil (CE) No. 850/98 qui a été amendé pas moins de 12 fois depuis son adoption. En plus de ce Règlement, des mesures techniques applicables aux pêcheries du Nord Atlantique et de la Mer du Nord se trouvent dans un nombre important d’autres règlements. Des mesures techniques étaient également incorporées aux règlements annuels sur les TAC et quotas comme un mélange de mesures régionales spécifiques et de dérogations aux prescriptions du Règlement (CE) No. 850/98 jusqu’à l’entrée en vigueur du Traité de Lisbonne (TFUE).

En 2004, le Conseil a recommandé que les mesures techniques pour le Nord Atlantique et la Mer du Nord puissent être simplifiées et également régionalisées pour tenir compte de la création des CCR par la réforme de la Politique Commune de la Pêche en 2002. Les règlements mesures techniques ont également été identifiés comme un cas pilote pour la simplification sous le Plan d’Action de la Commission 2006-2008 sur la simplification de la PCP. En 2008, la Commission a formulé une nouvelle proposition de mesures techniques pour le Nord Atlantique et la Mer du Nord, accompagné d’une étude d’impact. Cette proposition n’a pu faire l’objet d’un accord politique, et par conséquent, les mesures techniques introduites en 1998 restent d’application.

Ce rapport se concentre sur l’évaluation prospective (étude d’impacts) de différentes options de réforme des règlements mesures techniques. Il fait suite à une évaluation rétrospective conclue mi-2013. Cette évaluation prospective, dont le plan respecte celui des lignes directrices pour l’évaluation des impacts publiées par la Commission, a été réalisée principalement (i) en analysant la littérature scientifique et technique disponible sur le sujet et découlant de programmes de recherche spécifiques ou d’évaluations réalisées par des groupes de travail du CSTEP et du CIEM, (ii) en organisant des rencontres avec les autorités en charge de la gestion et du contrôle des pêches, les instituts de recherche et les principales organisations professionnelles du secteur dans les Etats membres ayant des intérêts significatifs dans les pêcheries du Nord Atlantique et de la Mer du Nord (Belgique, Danemark, France, Irlande, Pays-Bas, Espagne et Royaume-Uni, et (iii) en étudiant les documents politiques et législatifs de l’UE pertinents, avec des discussions avec des représentants de la Commission européenne et de l’Agence Européenne de Contrôle des Pêches (AECP).

Les principales leçons de l’évaluation rétrospective des règlements mesures techniques

Les principales forces identifiées lors de l’évaluation rétrospective sont que les mesures techniques sont pertinentes pour gérer les pêcheries et pour contribuer au respect des obligations de la législation environnementale de l’Union. En régulant quand, comment et où les navires de pêche peuvent interagir avec l’environnement marin, les mesures techniques constituent un outil approprié en cohérence avec les objectifs généraux de la politique de l’UE. L’évaluation rétrospective a également mis en évidence que bien que la législation en la matière soit considérée comme trop complexe et difficile à comprendre, elle contribue à la mise en place de règles du jeu équitables entre les différentes pêcheries de l’UE en définissant des règles communes applicables à tous les navires qui exploitent les mêmes ressources dans les mêmes zones. Cet atout a été largement souligné lors des rencontres avec les parties prenantes dans le cadre de cette évaluation.

Les principales faiblesses identifiées lors de l’évaluation rétrospective sont que les mesures techniques actuelles ne sont pas efficaces pour atteindre l’objectif général de réduction des captures d’espèces non-désirées. Les navires de pêche qui utilisent des engins conformes à la réglementation continuent de capturer des juvéniles d’espèces sous-taille ou de tailles commerciales soit parce que les quantités capturées ne respectent pas les règles de composition des captures, soit par manque de possibilités de pêche. La pêche non sélective affaiblit les objectifs généraux de la PCP de promouvoir une pêche durable sur les plans environnementaux, économiques et sociaux, les objectifs

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de la DCSMM d’atteindre le bon état écologique, et les objectifs de la stratégie Europe 2020 pour attendre des performances économiques robustes du secteur de la pêche, une croissance inclusive et une cohésion améliorée des régions côtières.

En ce qui concerne la protection de l’environnement marin, les quelques mesures qui ont été adoptées jusqu’à présent pour minimiser les captures d’espèces protégées n’ont pas atteint pleinement les objectifs. Les règlements mesures techniques ont pu intégrer quelques fermetures de zones atour d’écosystèmes profonds vulnérables (les récifs profonds), mais n’a pas pu englober la protection d’écosystèmes d’autres types d’habitats dans les zones hauturières.

En termes de coûts administratifs, les règlements mesures techniques actuels imposent une lourde charge aux autorités des Etats membres en charge du contrôle, avec un besoin de contrôler le respect principalement in-situ en utilisant des moyens à la mer qui sont coûteux. Etant donnée la relative faible efficacité des mesures techniques pour soutenir l’objectif de conservation, les investissements et les charges opérationnelles associées au contrôle des mesures techniques apparaissent disproportionnés.

L’évaluation rétrospective a également montré que les mesures techniques ne sont pas bien acceptées par les professionnels de la pêche. Le sentiment dominant exprimé par l’industrie est qu’elle n’est suffisamment impliquée dans la définition des mesures. Les mesures adoptées sous le processus décisionnel sont insuffisamment basées sur des preuves et généralement le résultat d’arbitrages politiques. Par ailleurs, les mesures techniques sont considérées comme peu efficaces pour préserver les ressources. Cette faible acceptation résulte en de faibles niveaux de respect des règles, et en de faibles performances des mesures techniques par comparaison avec leurs impacts espérés.

La définition des problèmes

Sur la base des leçons de l’évaluation rétrospective, les problèmes suivants à résoudre par le biais d’une réforme ont été identifiés. Le tableau ci-dessous indique ces problèmes, ainsi que leurs causes et leurs effets.

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Problème Causes Effets Manque de flexibilité

Les mesures techniques ne peuvent être adaptées à des conditions changeantes ou à de nouveaux besoins de manière proportionnelle et dans des délais raisonnables.

L’architecture juridique actuelle pour identifier et adopter des mesures techniques est lourde et longue.

Affaiblit l’efficacité des mesures techniques (incapacité d’adapter rapidement les mesures à des conditions changeantes pour les stocks, les besoins en matière de protection de l’environnement et les obligations internationales.

Nature prescriptive Les mesures techniques sont devenues excessivement prescriptives et détaillées. Cette nature prescriptive impose une lourde charge sur les autorités des Etats membres en charge du contrôle.

L’approche de gestion des mesures techniques se focalise sur les détails techniques plutôt que sur les résultats escomptés, avec top de règles qui cherchent à encadrer trop d’aspects des opérations de pêche.

Affaiblit l’efficacité des mesures Créé des obstacles légaux au développement de pratiques de pêche plus sélectives. Augmente les coûts administratifs (en particulier coûts élevés de contrôle) et la charge administrative associée pour les autorités des EM et le secteur de la pêche pour se mettre à jour avec une réglementation complexe.

Implication insuffisante des pêcheurs dans le processus de décision Le processus de décision n’est pas suffisamment transparent et ne prend par en compte les connaissances des professionnels.

Les mesures techniques sont adoptées sous la procédure législative ordinaire en suivant une approche descendante.

Amoindrit l’acceptabilité des mesures par le secteur et le respect des règles Affaiblit l’efficacité des mesures techniques (les professionnels peuvent avoir des propositions plus adaptées) Augmente la charge de contrôle

Objectifs et critères de succès insuffisamment définis D’un point de vue politique, les mesures techniques sont souvent part d’une stratégie de négociation, ce qui dilue la pertinence des mesures proposées

Perception d’impacts négatives sur l’industrie (diminution dans le court-terme de captures) and volonté des gestionnaires de trouver un compromise.

Affaiblit l’efficacité des mesures techniques (les mesures techniques adoptées ont sub-optimales)

Les parties prenantes concernées

Les problèmes concernent plusieurs parties prenantes. L’industrie de la pêche de l’UE, ainsi que les industries amont et aval qui lui sont liée, a un intérêt clé dans la réforme des règlements mesures techniques. Le secteur, qui est composé en majorité de micro-PMEs, souhaite maintenir sa rentabilité et l’emploi de l’exploitation de ressources bien gérées, avoir des règles du jeu équitables, et être davantage impliqué dans le processus décisionnel. Les autorités des Etats membres composent un second groupe de parties prenantes concernées avec un intérêt pour que la réforme soutienne le développement d’un cadre de gestion praticable bien admis par l’industrie, qui puisse alléger la charge administrative découlant de leurs mandats en matière de contrôle du respect des règles. La société civile, représentée par les ONG spécialisée sur la protection de l’environnement ont également un intérêt pour une réforme qui favoriserait la mise en œuvre de pratiques de pêche respectueuses de l’environnement. Les consommateurs recherchant des produits de la pêche capturés de manière durable forment également un groupe concerné par la réforme, comme les pêcheurs récréatifs en ce qui concerne la durabilité de l’exploitation des stocks qu’ils ciblent.

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Les objectifs politiques

En ligne avec la PCP réformée et avec les autres objectifs généraux de la politique de l’UE, les objectifs généraux des règlements mesures techniques sont (i) de contribuer aux objectifs de la PCP, en particulier celui de ramener les stocks exploités au niveau de la PME, (ii) de contribuer aux objectifs et cibles établis sous la Directive Cadre de Stratégie pour le Milieu Marin et ceux des autre textes applicables comme les Directives Oiseaux et Habitats, et (iii) de contribuer à la stratégie phare Europe 2020, en particulier sa composante ciblée sur l’utilisation efficiente des ressources.

Le tableau suivant présente les objectifs spécifiques qui sont directement rattachés à la résolution des problèmes, tout en contribuant aux objectifs généraux présentés ci-dessus.

Problèmes Objectifs spécifiques pour la réforme des

règlements mesures techniques

Manque de flexibilité

Les mesures techniques ne peuvent être adaptées à des conditions changeantes ou à de nouveaux besoins de manière proportionnelle et dans des délais raisonnables.

Apporter un mécanisme juridique plus flexible pour l’adoption de mesures techniques.

Nature prescriptive Les mesures techniques sont devenues excessivement prescriptives et détaillées.

Changer d’une approche prescriptive vers une approche de gestion fondée sur les résultats en fixant des objectifs en relation avec les attendus des mesures techniques (e.g. profils d’exploitation des stocks), plutôt que sur les caractéristiques techniques des mesures (e.g. les intrants).

Cette nature prescriptive impose une lourde charge sur les autorités des Etats membres en charge du contrôle.

Simplifier et rationaliser les règlements mesures techniques et vérifier la contrôlabilité au moment de la définition des mesures.

Implication insuffisante des pêcheurs dans le processus de décision Le processus de décision n’est pas suffisamment transparent et ne prend par en compte les connaissances des professionnels

S’assurer que le processus d’identification des mesures soit participatif et transparent.

Objectifs et critères de succès insuffisamment définis D’un point de vue politique, les mesures techniques sont souvent part d’une stratégie de négociation, ce qui dilue la pertinence des mesures proposées

Evaluer les impacts de mesures techniques en conjonction avec d’autres mesures de conservation, et définir des critères de réussite contre lesquels les mesures peuvent être évaluées.

Les options politiques

Cinq options politiques, incluant la situation de départ, ont été identifiées pour soutenir la réforme des règlements mesures techniques.

Option 1 : situation de départ

Cette option est développée en tenant compte de la nouvelle structure de gouvernance sous la PCP réformée, mais où la régionalisation n’est pas le choix préféré des parties prenantes. Sous cette option, les règlements mesures techniques sont pleinement alignés et synchronisés avec l’obligation de débarquement et autres obligations sous la nouvelle PCP. Aucun autre changement substantiel (par exemple vers davantage de sélectivité ou d’évitement des captures) n’est considéré en plus de ceux mentionnés ci-dessus (principalement en relation avec l’obligation de débarquement). Le cadre réglementaire actuel resterait sous la procédure de codécision (à l’exception des règlements

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délégués ou d’exécution de la Commission qui pourrait être développés sous ce cadre). Tout amendement futur à ce règlement serait adopté sous la procédure de codécision.

Option 2 : consolidation et simplification des règlements mesures techniques

En plus de la consolidation décrite sous la situation de départ présentée comme option 1, cette option prévoit davantage de simplification des règles de mesures techniques. Ceci consisterait en un nettoyage du Règlement du Conseil (CE) No.850/98 et des autres règlements mesures techniques de manière à éliminer les articles et mesures redondants, récupérer une cohérence d’ensemble des différents instruments, et intégrer les changements et amendements récents. Deuxièmement, sous cette option, l’ensemble des règlements mesures techniques applicables serait consolidés en un seul règlement (dans la limite des possibilités juridiques), éliminant ainsi une série de règlements partiels ou de dispositions légales concernant les mesures techniques décrites dans d’autres règlements.

Aucun autre changement substantiel (par exemple vers davantage de sélectivité ou d’évitement des captures) n’est considéré en plus de ceux mentionnés ci-dessus (principalement en relation avec l’obligation de débarquement). Comme sous la situation de base (option 1), le cadre réglementaire actuel resterait sous la procédure de codécision (à l’exception des règlements délégués ou d’exécution de la Commission qui pourrait être développés sous ce cadre). Tout amendement futur à ce règlement serait adopté sous la procédure de codécision.

Option 3 : répartition des mesures techniques à un niveau commun et un niveau régional

Cette option intègre un changement de la structure juridique qui pourrait permettre une adaptation adéquate des règles aux nouvelles demandes et conditions, sur une base régionale spécifique. Cette option se base sur l’hypothèse que la régionalisation des mesures techniques sous les plans de gestion pluriannuels sera un procédé relativement long, comme sous la situation de départ (option 1). En plus des éléments prévus sous la situation de départ et l’option 2, la proposition de règlements mesures techniques contiendrait un cadre juridique divisé en deux parties : a) un ensemble de règles communes applicables à tous les pêcheurs dans les eaux de l’Union, et b) une habilitation de la Commission pour adopter des mesures spécifiques régionales ou ciblées sur certaines pêcheries sur une base régionale sous la forme de règlements délégués ou d’exécution.

Ce règlement serait adopté sous la procédure législative ordinaire. La proposition intègrerait des règles communes pertinentes. Le règlement renverrait également à des mesures régionales pour lesquelles la Commission dispose d’une habilitation pour les amender, les augmenter ou élaborer les détails techniques par des règlements de la Commission.

Comme sous la situation de départ et l’option 2, le règlement resterait sous la procédure de codécision, mais l’importance de l’adaptabilité et de la réactivité est soulignée par la provision d’options larges pour des ajustements à travers des règlements délégués ou d’exécution de la Commission. Tout amendement futur à la réglementation sera approuvé sous la procédure législative ordinaire, ou quand applicable, à travers des actes de la Commission.

Option 4 : un cadre de mesures techniques

Cette option répond à la nouvelle gouvernance décentralisée de la PCP. Les nouvelles mesures techniques seraient un vecteur direct pour la régionalisation. Un règlement cadre serait adopté sous la procédure législative ordinaire. Ce règlement serait considérablement réduit par comparaison aux règlements actuels, permettant ainsi la simplification, en ne contenant qu’un nombre limité de mesures, règles, standards ou exigences - principalement ceux que l’on ne prévoit pas de changer avec le temps et communs à tous les bassins maritimes (e.g. définition des engins ou méthodes de pêche prohibés, tailles minimales de référence de conservation). Le règlement pourrait également inclure des standards de base comme des engins de pêche de référence, des niveaux de référence

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de sélectivité ou de profils d’exploitation. Les mesures pertinentes de protection des écosystèmes seraient également comprises dans ce règlement.

A côté des ces règles communes, le règlement prévoirait une architecture juridique pour la régionalisation. Les Etats membres concernés peuvent développer des recommandations communes. Ainsi, le cadre des mesures techniques sous cette option doit pouvoir être modifié, amendé ou dérogé quand les mesures sont incluses dans les plans régionaux ou sous les mesures de conservation. Ceci sera réalisé sous la procédure de régionalisation, conduisant la Commission à adopter des règlements délégués ou d’exécution à ces fins.

Sous cette option, la régionalisation conduirait progressivement à un accord sur des mesures techniques au niveau régional, qui seront incluses dans des actes de la Commission liés aux plans de gestion pluriannuels, et qui pourraient inclure une gestion axée sur les résultats.

Option 5 : des mesures techniques sous le processus de régionalisation

The option combine le concept de gouvernance régionalisée et d’une gestion entièrement axée sur les résultats. Cette option se repose sur l’hypothèse d’un développement rapide de plans de gestion pluriannuels régionalisés et adaptés aux contextes peu après l’entrée en vigueur de la PCP. Cette option intègre ainsi le fait que les parties prenantes ont suffisamment d’impulsion pour identifier les techniques et mesures appropriées pour atteindre les nouveaux objectifs concrets et les résultats attendus (stocks au niveau de la PME, taille du stock reproducteur, pas de rejets, échéanciers clairs pour atteindre les cibles, actions correctives quand ces cibles ne sont pas atteintes, pas d’augmentation de la capacité des flottes, obligations découlant de la législation environnementale).

Cette option ne nécessiterait pas de règlementation mesures techniques adoptées par codécision, même sous une forme minimale. Les mesures techniques seraient en grande majorité établies sous les plans de gestion pluriannuels, et de mesures régionales spécifiques de préservation de l’environnement marin. Toutes les mesures techniques seraient au final internalisées dans ces plans - qui devront couvrir toutes les pêcheries dans les eaux correspondantes.

Sous cette option, la solution logique est d’abandonner les règlements mesures techniques de l’UE, et de ne pas les remplacer par un nouveau cadre. Il n’y aurait donc pas de nouvelles propositions législatives - les mesures techniques seraient soit directement incluses dans les plans de gestion pluriannuels (sous la procédure de codécision), soit adoptés par la Commission sous une habilitation définie sous l’art. 18 de la PCP. Cependant, la Commission aurait le droit d’agir à tout moment si les mesures ne permettent pas d’atteindre les objectifs globaux de la PCP.

Ces concepts de changement de gouvernance et l’étendue des mesures techniques en place sont représentés dans la figure ci-dessous en partant de la situation de départ (option 1) jusqu’ à l’option 5.

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Evaluation des impacts des différentes options

L’évaluation des impacts a été conduite de manière principalement qualitative. Le principale raison est que les différentes options présentent différentes structures de gouvernance pour l’identification et la mise en œuvre de mesures technique et d’architecture juridique associée, plutôt que la spécification des mesures techniques qui pourraient être adoptées sous les différentes options. Il n’est pas possible d’anticiper quelles mesures techniques seront adoptées sous les structures de gouvernance sous les options, et leurs différences avec les mesures techniques sous la situation de départ. En second lieu, il n’est pas possible de distinguer les impacts des mesures techniques des impacts des autres mesures de conservation qui seront en vigueur sous la PCP, et en particulier sur l’objectif de conservation des stocks au niveau de la PME. Par exemple, on ne peut savoir si le changement de l’état d’un stock est le résultat de mesures techniques ou d’autres mesures portant sur la gestion des intrants et des outputs comme les totaux admissibles de captures qui seront en vigueur simultanément.

L’option 2 est estimée avoir des impacts économiques, sociaux et environnementaux comparables à ceux sous la situation de départ. C’est une conséquence logique du manque d’efficacité de cette option pour résoudre les problèmes liés à l’évitement des captures non-désirées soumises à l’obligation de débarquement ou liés à la protection de l’environnement des interactions avec les engins de pêche.

Les options 3 à 5 sont estimées avoir des impacts économiques, sociaux et environnementaux positifs comparables par rapport à la situation de départ. En particulier, on peut attendre que sous ces trois options, les Etas membres et l’industrie de la pêche auront les moyens d’adapter les pratiques de pêche de manière à éviter les captures non-désirées soumises à l’obligation de débarquement, et

Option 1: Situation de départ

Option 2: Pas d’utilisation de la regionalisation, consolidation et simplifications des règlements mesures techniques existants.

Option 3: Pas de changements des mesures existantes mais une répartition entre des mesures

communes et de mesures régionales

Option 4: Utilisation importante de la régionalisation, réglementation cadre

simplifiée et minimale, mesures techniques réduites

Option 5: Pas de mesures techniques dans un règlement cadre (gestion

axée sur les résultats)

Importance et niveaux de détail des mesures

techniques dans les

règlements PE / Conseil

Changement du status quo vers

une gouvernance régionalisée

accrue

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de faciliter la transition vers la PME. La possibilité d’adapter les mesures techniques sur une base régionale profitera principalement le plus aux flottes qui exploitent les poissons plats au chalut à perche, et les flottes chalutières qui exploitent la langoustine et d’autres espèces démersales au sein de pêcheries mixtes. D’après les données économiques de la DCF, ces flottes représentent environ 3 500 navires et 17 500 ETP, pour un chiffre d’affaires autour de 1,7 milliards d’euros (44% du chiffre d’affaires des flottes travaillant dans les régions Atlantique Nord et Mer du Nord).

La régionalisation de mesures techniques sous ces trois options apportera également aux Etats membres une architecture plus flexible pour l’adoption de mesures environnementales soutenant les objectifs de la DCSMM sous les descripteurs 1 (biodiversité), 4 (chaîne trophique) et 6 (intégrité des fonds marins), en particulier quand les problèmes à résoudre ont une dimension transnationale demandant l’application uniforme de règles spécifiques.

Bien que non quantifiables, les impacts économiques, sociaux et environnementaux des options 4 et 5, qui se basent sur une pleine régionalisation de la gouvernance et intègrent une gestion axée sur les résultats, seront plus importants que sous l’option 3 qui retient dans une certaine mesure une approche prescriptive avec peu d’incitatifs d’une gestion axée sur les résultats.

En ce qui concerne les coûts administratifs, l’option 2 n’aura pas d’impacts par comparaison avec la situation de départ. En particulier, les effets de simplification intégrés sous cette option ne devraient avoir que des résultats marginaux car les expériences précédentes de réforme indiquent que le potentiel de simplification est limité. L’option 2 est estimée générer des coûts administratifs similaires pour les différentes parties prenantes. Les coûts administratifs découlant du contrôle des mesures (estimés autour de 165 millions EUR par an, dont 112 millions EUR pour la surveillance maritime et aérienne) sont estimés décroître sous les options 3 à 5. La raison est qu’avec une régionalisation accrue des mesures, les mesures techniques seront mieux acceptées par l’industrie qui sera pleinement associée à leurs définitions. La régionalisation pourra également contribuer à rendre les meures plus simples et rationnelles. Sous ce point de vue, les options 4 et 5 qui promeuvent une pleine régionalisation des mesures techniques sont de nature à supporter davantage de réductions des coûts de contrôle par rapport à l’option 3. Par contre, la régionalisation accrue et davantage de responsabilités transférées sur les Etat membres sous les options 4 et 5 pourraient augmenter les coûts administratif, en particulier ceux découlant de la négociation de mesures techniques sous le cadre de régionalisation prévu à l’art. 18 de la PCP, et ceux liés à la collecte de données et la fourniture d’avis scientifiques pour l’identification et l’évaluation des mesures techniques à inclure dans ce cadre régional. Cette augmentation des coûts sera toutefois effacée par les économies obtenues sur les coûts de contrôle. Les options 3 à 5, et en particulier les options 4 et 5 devraient contribuer à faire baisse la charge administrative sur les Etats membres et le secteur de la pêche grâce à une réglementation très simplifiée par rapport à la réglementation actuelle.

En ce qui concerne les critères d’efficacité, de cohérence et d’acceptabilité, la comparaison des options indique clairement que l’option 2 ne correspond à aucun des besoins identifiés pendant l’évaluation rétrospective des règlements mesures techniques, et qu’elle manque de cohérence avec les objectifs de la PCP. Cette option a déjà été examinée lors d’un processus de réforme initié par la Commission en 2008, et rejetée sur la base de sa faible pertinence pour résoudre les problèmes. Cette option 2 n’améliore pas la situation par comparaison avec la situation de départ.

Les options 4 et 5 reçoivent les meilleures notations parmi les options considérées. Elles ont des performances comparables en termes d’efficacité, d’acceptabilité et de cohérence (interne et externe) par comparaison avec la situation de départ. La seule petite différence entre ces deux options est que l’option 5 considère une orientation radicale vers la régionalisation des mesures techniques par les Etats membres de manière à atteindre les objectifs généraux fixés par l’UE sans mesures par défaut en place. Cette option oriente potentiellement vers une gestion axée sur les résultats avec pas ou très peu de règles au niveau de l’Union ou des régions. L’option 4, bien qu’également basée sur la régionalisation et promouvant une gestion axée sur les résultats, inclut des dispositions transitoires

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accompagnant l’évolution de la régionalisation. Les options 4 et 5 apportent toutes deux une simplification notable du cadre réglementaire des mesures techniques par comparaison avec la situation de départ.

L’option 3 a également des performances intéressantes en termes d’efficacité, de cohérence et d’acceptabilité. Le principal aspect diminuant ces performances est qu’une partie des règles – les règles communes – restera sous la procédure de codécision qui a démontré, d’après l’évaluation rétrospective, ne pas être adaptée aux changements rapides dans les pêcheries et les stocks et ne pas créer d’incitatifs au respect des règles. La performance globale de cette option dépend de ce qui sera apprécié comme mesures communes placées sous le régime de la codécision, et de ce qui sera considéré comme mesures régionales et intégré dans les actes de la Commission qui peuvent être amendés rapidement. L’option 3 présente également un niveau de simplification mais retient une approche descendante centralisée, et ne promeut pas une gestion par l’UE des mesures techniques basée sur les résultats.

L’option préférée

L’évaluation des options 4 et 5 ne permet pas une sélection claire de l’option préférée, car les performances de ces deux options par comparaison avec la situation de base sont très proches.

Cependant, l’évaluation des risques associés à ces deux options soutient l’identification de l’option 4 comme option préférée. L’option 4 est moins exposée à un risque de régionalisation lente à se mettre en œuvre, par comparaison avec l’option 5. Parce que la régionalisation est un développement nouveau de la PCP qui devra être intégrée aux modalités actuelles de gestion des pêcheries et de l’environnement marin, elle prendra certainement un peu de temps dans les régions où il y a peu d’antécédents en matière de coopération entre les Etats membres. Les risques de retards de la régionalisation seront élevés dans le court terme (4-5 ans), mais avec le temps, l’expérience et les échanges de bonnes pratiques entre les régions, ce risque s’atténuera. Par ailleurs, les exigences minimales de l’UE portant sur les mesures techniques prévues sous l’option 4, et pas sous l’option 5, contribueront à diminuer les risques à court et long termes découlant de la perte d’incitatifs au respect des règles par l’industrie. Pour cette raison, l’option 4 est attendue mieux soutenir une réduction de la charge et des coûts administratifs par rapport à l’option 5 dans le court à moyen terme.

L’option 4 est par conséquent l’option préférée. L’option 5 pourra cependant être considérée comme une option viable dans le futur quand les Etats membres et l’industrie de la pêche auront une meilleure utilisation et compréhension du processus de régionalisation sous une gestion axée sur les résultats.

***

**

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Introduction

This report is an output of a specific contract completed under the Lot 2 Service Framework Contract: Ref. No. MARE/2011/01. This specifically relates to the development of a new framework for technical conservation measures in the reformed Common Fisheries Policy (CFP). It is made up of a retrospective evaluation of the current regime (task 1 of the ToR), and the completion of an impact assessment to support a new Commission proposal on technical measures (prospective evaluation, task 2 of the ToR).

This report represents the outputs of task 2 of the terms of reference of the study, i.e. the prospective evaluation. The outputs from task 1 of the terms of reference (retrospective evaluation) are published as a separate standalone report (Volume 1 of this report).

The justification for this evaluation is twofold. Firstly the Communication from President Barroso ‘Working Methods of the Commission’1 states that, ‘all significant proposals for a revision or new measure must be based on an evaluation of the policy framework already in place’. In addition, as noted in the ToR for this specific contract, there is a general consensus amongst Member States, stakeholders and the European Parliament that the current technical measures are ineffective. During the discussion of the reform of the CFP, the shortcomings in relation to the current technical measures framework led to a political commitment being given to the Commission to come forward with a new proposal for technical measures post-reform.

The focus of this evaluation is technical measures in the North East Atlantic and the North Sea. The justification is that in 2004, the Council recommended that the technical measures for these areas be simplified and also regionalised reflecting the creation of the Regional Advisory Councils (RACs) in the 2002 reformed CFP. However, political agreement was not reached on a Commission proposal that attempted to simplify the regulations. Later under a Commission Action Plan 2006-2008 on simplification of the CFP technical measures in these regions were identified as a fundamental test case for simplification. In 2008, the European Commission came up with a new proposal2 for technical measures for the North East Atlantic and the North Sea. This was accompanied by an impact assessment3, but a failure to reach a political agreement meant that this proposal was not adopted and the measures introduced in 1998 still remain in force.

There is a need to re-open these discussions in order to modernise and rationalise technical measures in the context of the new CFP with a focus on the North-east Atlantic and North Sea. In the Baltic, the process of regionalisation is already underway with a preference to encompass technical measures under a multiannual plan for the Baltic. As part of an earlier impact assessment (unpublished) carried out on a multi-species for the Baltic Sea, it is understood that an analysis of technical measures was already carried out (pers. comm. Commission) so there was no need to repeat this analysis as part of this study.

For the Mediterranean, opening a discussion on the technical measures contained in Regulation 19867/2006 seems difficult and it would seem more appropriate to the Commission to push rationalisation of conservation measures through the development of national management plans as foreseen in the Mediterranean Regulation. This being the case, it was chosen to exclude the technical measures for the Mediterranean from this study at this juncture.

1 C(2010) 1100 of 10th February Communication from the President ‘Working Methods of the Commission 2010-2014’. 2 COM (2008) 324 Proposal for a Council Regulation concerning the conservation of fisheries resources through technical measures 3 SEC (2008) 1978 Impact Assessment regarding the Commission's proposal for a Council Regulation concerning the conservation of fisheries resources through technical measures in the Atlantic and the North Sea


The methodology used for this prospective evaluation has been:

• The Commission Impact Assessment Guidelines (and related annexes)4. • The information collected as part of the retrospective evaluation. • Existing scientific and technical literature in relation to technical measures published as a

result of specific research programmes including recent evaluations carried out by STECF and also by ICES working groups.

• Individual consultations with managing authorities, control authorities, scientific institutes and fishermen organisations in the Member States having significant fishing interests in the North East Atlantic and in the North Sea (Belgium, Denmark, France, Ireland, Netherlands, Spain, United Kingdom). These consultations informed both the retrospective and prospective evaluations.

• Discussions with European Commission representatives (DG MARE and DG ENV) in Brussels and with the European Fisheries Control Agency (EFCA) in Vigo.

Following this short introduction, the structure of this report follows the guidance provided in the Commission Impact Assessment Guidelines.

1 General Context

1.1 What are technical measures, and what are they for?

Fisheries management aims to regulate the amount and composition of fish species caught, to ensure ongoing reproduction potential of commercially exploited stocks while minimising negative impacts on the broader ecosystem. This has traditionally focused on regulating two aspects:

• The exploitation pattern, i.e. the proportion at each age of fish that are removed from the population. Exploitation pattern is a composite result of a range of factors including the selectivity characteristics of the gears, the harvest ratios by different gears, as well as seasonal and spatial distribution of fishing effort relative to the seasonal and spatial distribution of the resource. The exploitation pattern is regulated using instruments which define where, when and how a fishing enterprise can exploit and interact with marine resources and the wider marine ecosystem. The management framework of technical aspects of fishing operations corresponds to technical measures.


Technical measures can be loosely grouped into (i) those that regulate the design characteristics of fishing gears that are deployed, such as the regulation of mesh size; (ii) those that regulate the operation of the gear, such as setting maximum limits on how long or what type of gear can be deployed; (iii) minimum landing sizes and (vi) those that set spatial and temporal controls such as closed/limited entry areas and seasonal closures. Article 7 of the Basic CFP Regulation5 includes technical measures under the general heading of ‘Types of conservation measures’ (Art. 7.1). The regulation (Art. 7.2) states that technical measures may include inter alia the following (extract):

a) Characteristics of fishing gears and rules concerning their use.

4 http://ec.europa.eu/governance/impact/commission_guidelines/commission_guidelines_en.htm 5 Regulation (EU) No. 1380/2013 (OJ L354. 28.12.2013). p.22-60.


b) Specifications on the construction of fishing gear, including: i. Modifications or additional devices to improve selectivity or to minimise the negative

impact on the ecosystem; ii. Modifications or additional devices to reduce the incidental capture of endangered,

threatened and protected species, as well as other unwanted catches. c) Limitations on or prohibitions of the use of certain fishing gears, and on fishing activities, in

certain areas or periods. d) Requirements for fishing vessels to cease operating in a defined area for a defined minimum

period in order to protect temporary aggregations of endangered species, spawning fish, fish below minimum conservation reference size, and other vulnerable marine resources.

e) Specific measures to minimise the negative impact of fishing activities on marine biodiversity and marine ecosystems, including measures to avoid and reduce as far as possible unwanted catches.

Technical measures are largely aimed at reducing catches of juveniles of commercial and non-commercial species (size selectivity) and to improve species selectivity. Technical measures therefore have the potential to contribute to the CFP objective of gradually ‘reducing, as far as possible, unwanted catches’ (Art. 2.5a).

In terms of contribution to conservation objectives, the exploitation pattern has a significant influence on the point estimates of Fmsy for a given exploitation rate. In general a higher age-at-capture (age at 50% selection) results in a higher Fmsy yield (MSY) and associated fishing opportunities. In other words, the bigger the average age at first capture, the higher the MSY that can be extracted from the stock. Technical measures, through adjustments in gear selectivity and measures that set spatial and temporal controls, can contribute significantly to changes in exploitation patterns and therefore changes in the potential yield that can be removed from a stock.

Technical measures also aim to avoid catches of protected species and to minimise the impacts of fishing on the environment, thereby contributing to the objectives of the CFP to ensure that ‘negative impacts of fishing on the marine ecosystems are minimised’ (Art. 2.3), as well as supporting compliance with obligations under Union environmental legislation (MSF Directive, Birds Directive and Habitats Directive). STECF (2012b) considered the requirements of the MSF Directive, Habitats and Birds Directives and concluded that the following are relevant in relation with application of technical measures:

• Recovering and maintaining the conservation status of features of conservation importance (FOCI) and species identified under the Birds and Habitats Directives.

• Maintaining biological diversity (MSFD, descriptor 1). • Maintaining populations of all commercially exploited fish and shellfish within safe biological

limits (MSFD descriptor 3). • Ensuring that all elements of the marine food webs, to the extent that they are known, occur

at normal abundance and diversity (MSFD descriptor 4). • Recovering and maintaining sea-floor integrity at levels that ensure that the structure and

functions of the ecosystems are safeguarded and benthic ecosystems, in particular, are not adversely affected (MSFD descriptor 6).


1.2 Overview of the legislative framework and ongoing developments

1.2.1 Past and current technical measures regulations

Past technical measures regulations

The first technical measures regulation for EU fisheries in the Northeast Atlantic and the North Sea was introduced in 1980 under Council Regulation (EEC) No. 2527/806, prior to agreement of the first Common Fisheries Policy (CFP) in 1983. This Regulation remained in place until the CFP was agreed in 1983. Council Regulation (EEC) No. 2527/80 already contained definitions of areas, mesh size and catch composition regulations, minimum landing sizes, prohibitions on certain gears, closed area/seasons and gear restrictions, as well as the legal basis for the establishment of emergency measures.

After adoption of the CFP in 1983, Council Regulation (EEC) 2527/80 was replaced by Council Regulation (EEC) No. 171/837, which consolidated the measures contained in Regulation (EEC) No. 2527/80, and was subsequently amended six times to include specific regional provisions in certain fisheries.

In 1986, recognising that there was a need once again to consolidate the technical measures regulations, Council Regulation (EEC) No. 171/83 was repealed and replaced by Council Regulation (EEC) No. 3094/868. This Regulation contained all the elements of Council Regulation (EEC) No. 171/83 and all of the amendments to it. Council Regulation (EEC) No. 3094/86 remained in force for the next 11 years during which time it was amended no less than nineteen times. The majority of these amendments increased minimum mesh sizes or introduced new minimum landing sizes or closed areas/gear restrictions. However, several of the amendments introduced new elements into the technical measures regulations. Council Regulations (EEC) No. 4056/89 9 and 345/92 10 , for example, allowed for the first time the use of selective gears as derogations from the minimum mesh size regulations.

In 1997, the EU once again recognised that the technical measures had become unwieldy and in need of consolidation. Therefore Council Regulation (EC) No. 894/97 11 was enacted to replace Council Regulation (EEC) No. 3094/86 and its associated amendments. This Regulation was only amended once, by Council Regulation (EC) No. 1239/98 12 which introduced more restrictive measures on the use of driftnets. After a short period, the EU then decided that the measures included under Council Regulation (EC) No. 894/97 contained a number of inconsistencies and were unduly complex and Regulation (EC) No. 894/97 was therefore replaced almost in its entirety by Council Regulation (EC) No. 850/9813.

6 Council Regulation (EEC) No. 2527/80 of 30 September 1980 laying down technical measures for the conservation of fishery resources 7 Council Regulation (EEC) No. 171/83 of 25 January 1983 laying down certain technical measures for the conservation of fishery resources 8 Council Regulation (EEC) No. 3094/86 of 7 October 1986 laying down certain technical measures for the conservation of fishery resources 9 Council Regulation (EEC) No. 4056/89 of 19 December 1989 amending for the ninth time Regulation (EEC) No. 3094/86 laying down certain technical measures for the conservation of fishery resources 10 Council Regulation (EEC) No. 345/92 of 27 January 1992 amending for the eleventh time Regulation (EEC) No. 3094/86 laying down certain technical measures for the conservation of fishery resources 11 Council Regulation (EC) No. 894/97 of 29 April 1997 laying down certain technical measures for the conservation of fishery resources 12 Council Regulation (EC) No. 1239/98 of 8 June 1998 amending Regulation (EC) No. 894/97 laying down certain technical measures for the conservation of fishery resources 13 Council Regulation (EC) No. 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms


Current technical measures regulations

More than 15 years after its adoption, Council Regulation (EC) No. 850/98 remains in force, having been amended no less than twelve times.

Compared to its predecessors, Council Regulation (EC) No. 850/98 included a first real attempt to adapt technical measures to the diversity of fisheries in the EU, reflecting the need for homogeneous rules across regions. It includes: measures to improve the selectivity of towed gears by applying detailed rules on the construction of fishing gears, making the use of selectivity devices (e.g. square mesh panels) mandatory in certain fisheries; additional closed areas/seasons and gear restrictions; as well as maintaining the legal architecture for emergency measures and the development of local measures for inshore fisheries within Member State (MS) territorial waters. The Regulation also includes ecosystem measures through closures of areas around vulnerable marine ecosystems (mainly deep-sea coral reefs).

In addition to Council Regulation (EC) No. 850/98, technical measures of relevance for the North Sea and the Atlantic are also found in a number of other regulations, including Council Regulation (EC) No. 2549/200014, Commission Regulation (EC) No. 2056/200115 (cod measures), and Commission Regulation (EC) No. 494/2002 16 (hake measures). Additionally specific ecosystem protection regulations, for example on cetaceans (Council Regulation (EC) No. 812/200417) as well as detailed implementing rules for the measurement of mesh size and the introduction of real-time closures in the North Sea and Skagerrak, have also been enacted.

Technical measures were also included under the TAC & quotas Regulations as a mixture of regionally specific measures and derogations from the provisions of Council Regulation (EC) No. 850/98 up until entry into force of the Lisbon Treaty (TFEU). Recently the EU adopted EP/Council Regulation (EU) No. 227/201318 to move the applicable technical measures contained in the 2009 TAC & quota regulation and often carried on from previous TAC & quota regulations, into the central technical measures Council Regulation (EC) No. 850/98.

However, despite these amendments to Council Regulation (EC) No. 850/98, from the date it came into force, and despite (or perhaps because of) the following amendments, the Regulation has consistently been considered as too complex and difficult to interpret, control and enforce. As early as June 2004, the Commission presented a Communication to the Council and the European Parliament: ‘Promoting more environmentally-friendly fishing methods: the role of technical conservation measures’19, in which it concluded that the way forward should, amongst other things, be to simplify rules and adopt a more decentralised approach. Subsequently, the Council adopted the conclusions, in which it invited the Commission to present a new proposal on technical measures in the North Sea and North East Atlantic, to replace Council Regulation (EC) No. 850/98. Coincidently, the 2006 – 2008 Action Plan for simplifying and improving the Common Fisheries Policy20, set out that priority was to be given to simplifying legislation concerning measures for the conservation of fish stocks through technical measures contained in Council Regulation (EC) No. 850/98, after consulting

14 Council Regulation (EC) No. 2549/2000 of 17 November 2000 establishing additional technical measures for the recovery of the stock of cod in the Irish Sea (ICES Division VIIa) 15 Commission Regulation (EC) No. 2056/2001 of 19 October 2001 establishing additional technical measures for the recovery of the stocks of cod in the North Sea and to the west of Scotland 16 Commission Regulation (EC) No. 494/2002 of 19 March 2002 establishing additional technical measures for the recovery of the stock of hake in ICES sub-areas III, IV, V, VI and VII and ICES divisions VIII a, b, d, e 17 Council Regulation (EC) No. 812/2004 of 26 April 2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No. 88/98 18 Regulation (EU) No. 227/2013 of the European Parliament and of the Council of 13 March 2013 amending Council Regulation (EC) No. 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No. 1434/98 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption 19 COM (2004) 438 final 20 COM (2005) 647 final


the Member States and the industry. Accordingly, the Commission tabled a proposal to replace Regulation (EC) No. 850/98 in June 200821 accompanied by an impact assessment22, but the new regulation could not be adopted before the entry into force of the Lisbon Treaty in 2010.

In terms of legal architecture, the vast majority of technical measures, including Council Regulation (EC) No. 850/98 and other relevant acts, have been as legislative acts of the Union. This means that amendments can only be legally made on the basis of agreement being reached by the Council and the European Parliament (i.e. under co-decision). The current legal framework for technical measures does not delegate powers to the Commission, except in exceptional circumstances for the adoption of time limited emergency measures where there is evidence of serious threats to the conservation of stocks or marine ecosystems and also for relatively minor implementing details. Member States are also empowered to adopt technical measures no less stringent than EU measures applying to their own vessels and/or in their territorial waters, with in this later case some procedural steps if the measures are liable to affect the vessels of another Member State. In effect the combination of all these factors means that in practice it has been very difficult to make substantive amendments to technical measures as to do so require politically agreement on even the most minor of changes.

1.2.2 Recent evolution of the institutional context and likely effects

The following sections present relatively recent evolution in the institutional context which has had, and will have, an impact on the technical measures framework.

The 2002 CFP and the creation of RACs

In 2002, the new CFP Basic Regulation (Council Regulation (EC) No. 2372/2002) introduced the creation of Regional Advisory Councils (RACs) composed principally of fishermen's organisations and other representatives of interests affected by the CFP (e.g. environmental NGOs). The main role of RACs is to provide recommendations and advice to the Commission and Member States on matters relating to fisheries management. Officially created in 2004 through a Council Decision, the different RACs have subsequently been formally established between 2004 and 200823.

Following the reform of the CFP the RACs have been re-formulated into Advisory Councils (ACs) with an enhanced role in developing policy under regionalisation. The ACs, including the NWW AC, covering the fisheries in the North Sea and North Atlantic waters, have now the capacity to provide structured regionalised stakeholder inputs into the decision-making process, as recent experience demonstrates (see Box 3 page 19 detailing implementation of selectivity measures in the Celtic Sea). The 2008 initiative to reform the technical measures framework was largely based on the possibility to use decentralised RAC expertise to better adapt measures to the regional context.

2010 Entry into force of the Lisbon Treaty

Following the entry into force of the TFEU in 2010, technical conservation measures could no longer be included in the annual fishing opportunities regulations for legal reasons. The Lisbon Treaty establishes co-decision as the ordinary decision-making procedure for matters falling under the CFP. An exception is foreseen in Article 43(3) of the Treaty as regards measures ‘on the fixing and allocation of fishing opportunities’. These measures are to be adopted by the Council, on a proposal from the Commission, without the involvement of the Parliament. TAC & quota regulations are therefore limited to the fixing and allocation of fishing opportunities and conditions functionally linked to the use of those opportunities, and can no longer be used to create, derogate to or modify technical measures promoted under other legislative acts (e.g. Council Regulation (EC) No. 850/98). In

21 COM (2008) 324 final 22 SEC (2008) 1978 23 In 2004 the North Sea RAC and the Pelagic RAC were established, in 2005 the North Western Waters RAC, in 2006 the Baltic RAC, in 2007, the South Western Water RAC and the Long-Distance RAC and in 2008 the Mediterranean RAC.


practical terms, this means since 2010 it has no longer been possible to adapt the technical measures rules to evolving needs and issues through the annual TAC & quota regulation.

It should also be noted that since the entry into force of the TFEU, the powers currently conferred upon the Commission by Council Regulation (EC) No. 850/98 e.g. implementing details and adoption of emergency measures, need to be reclassified into delegated and implementing powers, with for the later, due consideration of the reformed comitology procedure detailed in EP/Council Regulation (EU) No. 182/201124. The Commission submitted a proposal for such an adaptation25 that is still under negotiation.

2013 The CFP reform

Under the new Basic CFP Regulation26, and in line with the TFEU, the possibility of enacting technical measures into legislation has been increased.

The major change is that in the framework of regional cooperation (Art. 18 of the Basic Regulation), the Commission can adopt conservation measures, including technical measures, through Commission (implementing or delegated) acts where all Member States having a direct management interest in a region agree on joint recommendations. In the absence of joint recommendations or at any time under its own initiative, the Commission can submit a proposal for the relevant measures through the ordinary legislative procedure (i.e. under co-decision).

The main tools for regionalisation are multi-annual management plans, which must aim to restore and maintain fish stocks above levels capable of producing MSY. The scope, objectives, targets, timeframes, conservation reference points, and safeguards to ensure the targets and objectives of the multiannual plans are met are implemented through a co-decision regulation. Specific technical measures can be included as part of this co-decision regulation. However, under regionalisation, the possibility of including an empowerment for the Commission to adopt technical measures by means of a Commission delegated / implementing act on the basis of joint recommendations agreed by Member States is also included. Including technical measures under a Commission act will increase flexibility and allow them to be tailored to the specificities of the fisheries involved, reflecting regional differences between fisheries.

Concerning environmental measures, Article 11 of the Basic Regulation indicates that specific conservation and technical measures necessary for compliance with obligations under Union environmental legislation (e.g. MSFD, Habitats and Birds Directives) can also be adopted under regionalisation in the same way, i.e. as Commission acts following joint recommendations by Member States, or through the ordinary legislative procedure in the absence of joint recommendations.

In addition, it should be noted that the reform of the Common Fisheries Policy seeks to reduce unwanted catches and eliminate discards in fisheries subject to catch limits by 2019. Central to the reform is a landing obligation (or discard ban) as prescribed by Art. 15 of the Basic CFP Regulation. In order to make the landing obligation operational, certain provisions within the current technical measures and control regulations run contrary to the landing obligation and oblige fishermen to discard fish. These provisions are proposed to be amended or removed through a new regulation known as the ‘omnibus regulation’ (Commission proposal COM (2013) 88927). This is very much seen

24 Regulation (EU) No. 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers. 25 COM (2012) 432 26 Basic Regulation on the CFP - EP / Council Regulation (EU) No. 1380/2013 on the CFP 27 Proposal for an EP/Council Regulation amending Council Regulations (EC) No.850/98, (EC) 2187/2005, (EC) No.1967/2006, (EC) No.1098/2007, (EC) No.254/2002, (EC) 2374/2002 and (EC) No. 1224/2009 and repealing (EC) No.1434/98 as regards the landing obligation. COM(2013) 889 final, Brussels, 17.12.2013


by the Commission as a temporary solution while a new proposal for technical measures is developed.

It is argued that the landing obligation will in itself create strong incentives for the avoidance of unwanted catches through the adoption or development of more selective fishing gears and other changes to fishing practices. Since keeping unwanted catches onboard will inter alia occupy hold space, require additional work from the crew, and incur additional landings charges, it is expected that fishermen will act to avoid these additional costs and maximise revenue through more selective fishing to reduce unwanted catches in the first instance.

In summary, the new CFP will have the following effects on the implementation of conservation measures, including technical measures,

• Opportunities to benefit from regionalised stakeholder inputs into the decision-making process under the umbrella of the relevant RACs (now called Advisory Councils under the new CFP) and a framework to input this expertise under regionalisation;

• Provide a strong incentive for the industry to reduce unwanted catches through improved selectivity and avoidance measures as a consequence of the landing obligation introduced under Art. 15.

• Promote the use of technical measures to minimize the impacts of fishing on the marine ecosystem.

1.3 Main issues in relation with the current technical measures regulations

An ex-post (retrospective) evaluation has been completed of the current technical measures legislative framework against the evaluation criteria (relevance, effectiveness, efficiency, coherence and acceptability). The main lessons of the retrospective evaluation are as follows.

The main strengths identified by the ex-post evaluation are that technical measures are relevant to manage fisheries and contribute to the objectives of marine environmental legislation. By defining how, when and where fishing vessels can interact with the marine environment; technical measures constitute a relevant management tool, coherent with the overarching objectives of the CFP and environmental legislation. The ex post evaluation also identified that although the technical measures legislation is seen by most stakeholders as too complex and difficult to understand, it does establish a uniform set of technical rules across EU fisheries by defining common rules applicable to all fishing vessels exploiting the same resources in the same areas. This is widely acknowledged by all stakeholders interviewed in the context of this evaluation as being beneficial.

The main weaknesses identified by the ex-post evaluation are that the current technical measures framework is not effective in achieving the overarching objective of reducing unwanted catches (i.e. their contribution to achieving sustainability and reducing discarding has been largely sub-optimal). Fishing vessels using legal gears as prescribed by the regulation in some fisheries still catch, large amounts of juvenile fish or marine species of commercial size not matching the catch composition rules associated with the use of certain gears, or for which the vessels have no fishing opportunities (lack of quota). In certain cases this leads to vessels being oblige to discard fish.

Concerning ecosystem protection, the limited technical measures adopted so far to avoid catches of protected species (e.g. acoustic deterrent devices) or protect sensitive habitats have also largely failed to fully meet their objective.

In terms of efficiency, current technical measures place a high burden on Member States’ control authorities with a need to for control mostly in situ at sea, which is costly. Currently it would appear


that the investment and operational costs associated with controlling technical measures appear to be excessive when compared to the benefit in terms of conservation objectives delivered by the measures themselves. Fishermen are also impacted in that they have been forced to adapt or changes their gears to comply with new legislation.

The ex-post evaluation also shows that technical measures are not well accepted by fishermen. The dominant feeling is that the industry is not sufficiently involved in the definition of technical measures and that the process of developing measures is non-transparent, not sufficiently based on the evidence of likely impacts and generally politically driven. This low acceptance results in low levels of compliance, and poor performance of technical measures compared to their expected positive impacts. In other words, there is only limited incentive for responsible behavior and compliance.

1.3.1 Extent of the problem of unwanted catches in the North Sea and the North East Atlantic

The main shortcoming of the EU technical measures regulations is that they are not effective in preventing catches of unwanted species. Unwanted catches (commercial and non commercial species as well as protected species) are currently discarded at sea in response to regulatory and/or market forces. Under the current CFP, it is illegal to land catches that do not match prescribed catch composition rules, legal minimum landing sizes, or allowed fishing opportunities (quotas). Discarding represents a legitimate means for fishing enterprises to comply with these regulations by disposing of catches that cannot be legally landed, as well as discarding fish with a low or no economic value.

Total discards in the North East Atlantic fisheries are estimated to be close to 1 300 000 tonnes per year compared to total landings in the region of 8 900 000 tonnes, i.e. an average discard rate of 13% (Kelleher, 2005). For the North Sea alone, Catchpole et al. (2005) estimated discards at 800 000 –950 000 tonnes per year, which equates to nearly one-third of the total weight landed and one-tenth of the estimated total biomass of fish in the North Sea. The main fleet segments considered responsible for most of the discarded material in the North Sea include the flatfish beam trawl fishery targeting sole and plaice with an overall discard rate of 71–95% ,the otter trawl fishery targeting Nephrops with a discard rate of between 45% and 59% and the demersal fish otter trawl fishery targeting cod, haddock, and whiting with a discard rate of 33-39% (Catchpole et al., 2005). These three segments are all heavily regulated by a set of EU technical measures that includes prescriptions on fishing gears (mesh sizes, use of additional selectivity devices like square mesh panels) and seasonal or permanent closures of certain areas with high densities of juveniles individuals like the plaice box. These segments are also regulated through limits on landings (quotas) and on fishing effort.

A comprehensive pan-European synthesis of discard data collected since 2000 under the Data Collection Framework enacted by the EU has recently been published by Uhlmann et al. (2013). This study highlighted the variability of discard rates in relation to gear used and/or regions where the gears were deployed. The following figure presents two examples drawn from this publication. For cod, discard rates are found to be homogeneous across fisheries, but are higher in the Skagerrak than in other areas. For plaice, the different discard rates between fisheries appear to be in the same order of magnitude as between regions. Notably, discard rates of plaice differed greatly between beam and otter trawls in the North Sea, but were much more homogeneous across fisheries in the Irish Sea. Other studies compiling information on discards on a broad geographical scale, e.g. MRAG (2011), also indicate that the fisheries discarding the most (i.e. certain beam trawl and otter trawl fisheries) and the fisheries with lower discards (i.e. some pelagic trawl fisheries, certain otter trawl fisheries and passive gear fisheries) can be clearly identified.

These results support the findings that EU technical measures should be adapted to the context of specific fisheries with measures devised at regional levels instead of using the current centralised top-down approach to better take into account regional specificities.


Figure 1: Discards and landings rates of (a) cod and (d) plaice across fisheries for a given region (inter-fishery, top row) and across regions for a given fishery (inter-region, bottom row). The numbers above each bar represent the number of observed trips used to estimate average discard rates. Source : Uhlmann et al. (2013)


1.3.2 Are the technical tools to reduce unwanted catches available?

Whether with support of EU funding through the successive Research Framework Programmes (FP5, FP6 and FP7) or structural funds, or with National funding, there has been considerable research by Member State research institutes on the improvement of the selectivity of fishing gears, in particular for towed gears (beam trawls, otter trawls, pelagic trawls) and latterly on other tools such as real-time closures. Many technical solutions apart from simple mesh size increases or changes to codend construction (e.g. twine thickness) are now well researched and available including the use of escape panels, use of novel shaped meshes (Turned 90° mesh), and the use of sorting grids or separator panels.

Some of these solutions have been translated into legal obligations where required. According to fisheries technologists met as part of this evaluation, there is little more to invent in terms of selectivity devices. This is also borne out by the European Fisheries Technology Platform which provides a common European approach on Innovative Fisheries Technologies from research to production outlining the key issues for strategic innovation. Their work shows that while there is a significant amount of research work continuing it is largely looking at variations of the same gear modifications.

However, research results show that the effectiveness of modifications is highly dependent on the working conditions of the vessels, and that additional technical work is needed to define precisely (nature, dimensions) what selectivity tools are the best suited to a given situation and how they should be rigged. Follow-up testing at sea on a commercial basis are also required to obtain information from fishermen on the effectiveness and the relevance of the solutions trialled. Collaborative research has become a vital component in fostering communication and has proved to be instrumental in bringing together the unique problem-solving and creative mindsets of fishers and scientists. It is recognised that such ventures should continue where they already exist and be promoted where they do not (Glass et al., 2007).

Seasonal closures of areas where juveniles or spawners aggregate at a particular point in their life cycles are a long-standing tool for fisheries management. Closures are generally more effective when (i) they do not include too many derogations and (ii) they are within reasonable range from the coast to be accessible to seaborne or airborne patrol means at reasonable cost. They are also better accepted by industry if they are involved in developing them.

The current technical measures regulations include many such closures generally to protect some key species when they are particularly vulnerable to fishing gears i.e. spawning or nursery areas. This includes inter alia seasonal closures for small pelagics, flatfish, demersal fish or Nephrops. However, a STECF evaluation of the EU network of seasonal closures concluded that although some closures are estimated to bring some benefits to the stocks, it is not possible to disentangle the effects from the closures from the effects of other management measures. The way forward suggested was for closed areas or other technical measure (i.e. gear measure) aimed at ensuring sustainable exploitation should be developed with clear objectives (SGMOS, 2007).

More recently, the EU has applied an innovative approach to closures through Council Regulation (EC) No. 1224/2009, by introducing the possibility to close an area to fishing activities as soon as high abundances of species are detected and caught by fishing vessels, i.e. real-time closures (RTCs).

Real time closures (RTCs) are defined areas of the sea which are closed to fishing for a limited period, triggered by information gained by managers in ‘real time’. Depending on the specific objectives to be achieved they can be used to protect areas (i) of high abundance of spawners, (ii) where juveniles comprise a higher than average proportion of the catch, (iii) where catch composition is likely to result in high levels of discards, or (iv) as means of reducing fishing mortality for a particular species (e.g. cod). RTCs tend to enjoy greater support from the fishing industry than many other conservation measures as they are seen to be more responsive to conditions ‘on the ground’ and


directly related to a clear conservation benefit. So far, RTCs have only been applied in EU waters through Commission Regulation (EU) No. 724/2010 for the protection of juvenile cod, haddock and whiting in the North Sea, Skagerrak and Kattegat, following an arrangement with Norway. According to the industry, there is potential to use this tool more widely for instance to protect other species such as monkfish.

The main conclusion from the above discussion is that research is still needed to improve the selectivity of fishing operations to meet the general objective of reducing unwanted catches. The preferred way for achieving this is through science-industry partnerships. The recent French science-industry partnership to identify technical solutions to improve selectivity of Nephrops trawls28, or the Scottish science-partnership partnership 29 to develop cod avoidance measures have shown that collaborative research can produce sensible results well accepted by fishermen.

Further developments are needed, in particular to adapt the selectivity tools to the particular conditions of commercial fishing in the different EU fisheries currently subject to high rates of discarding, and to integrate these into management plans a combination of possible solutions based on gears adaptation and/or closures of certain areas, taking into account the effects of other management measures for the sustainability of stocks, i.e. using both the exploitation pattern and the exploitation rate to manage stocks. In addition, research is also needed to continue to develop fishing gears and technologies aimed at reducing environmental impacts, while maintaining as far as possible capture efficiency.

The need for further research is acknowledged by the EU, which has set improvement in selectivity as one of the eligible actions for funding under Art. 36 of the new EMFF30 and also as a key action in the current EU Framework Programme for research and development commencing in 2014 (Horizon 2020).

1.3.3 Can the industry be incentivised to adopt more selective fishing practices?

Despite the considerable scientific work in the field of conservation engineering/gear technology, there is general concern over the lack of up-take or implementation of new fishing gears and strategies in commercial fisheries. There is a long list of examples of relevant technical solutions that have been developed by research programmes, but ultimately have not been adopted by the industry. The underlying driver identified is that the industry lacks incentive to offset the commercial losses inevitably resulting from more selective fishing practices with the conservation benefits.

There are however examples whereby the industry has been incentivised to adopt more selective fishing practices.

The management plan for cod stocks

Under Council Regulation (EC) No. 1342/2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks, the EU introduced a set of new management instruments that have encouraged the introduction of bottom-up, or at least nationally proposed and organised, approaches to minimise cod catches (Art. 11 and 13 of Reg (EC) No. 1342/2008).

Article 13 of this regulation allows for buy-back of effort on the basis of measures taken that maintain cod catches annually below 1.5%.

28 http://www.comite-peches.fr/site/index.php?page=g32&prog=21 29 http://www.scotland.gov.uk/Topics/marine/science/sisp 30 Regulation (EU) No. 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No. 2328/2003, (EC) No. 861/2006, (EC) No. 1198/2006 and (EC) No. 791/2007 and Regulation (EU) No. 1255/2011 of the European Parliament and of the Council


Under Article 11, individual vessels can be exempted from effort restrictions altogether by using highly selective gears or spatial avoidance measures that maintain cod catches below 1.5%. The way to achieve reductions in cod mortality is left open to Member States and industry, e.g. through the use of highly selective gear or implementing spatial/temporal modifications of fishing activity. As such, these articles are an innovative instrument following a new regional and fisheries-tailored ‘results-based’ management strategy.

Since the current plan’s implementation, several groups of vessels have been exempted from the effort restrictions under Art. 11. Some of these have achieved the low cod catches through the use of selective gear such as a sorting grids (selectivity of fishing gears particularly in Sweden), and others through limiting their operations to waters deeper than 200-300 m, which is outside the normal distribution of cod (avoidance of cod concentrations) (Kraak et al., 2013).

In 2009 and 2010 a number of Member States are reported to have used the effort buy-back provisions under Article 13, through adopting gear modifications or closures (STECF, 2011). Ireland, the UK, Sweden and Denmark have all introduced spatial and temporal closures to reduce cod catches. In large parts of the closed areas, only vessels with selective gears are allowed to fish. The additional effort has proven to be a major incentive for the industry to adapt their operations or adopt selective gears. A good example is the Scottish Conservation Credits Scheme (CCS). This is a co-management initiative that rewards the adoption of cod avoidance behaviours and reduced cod catch rates by allocating higher effort allocations for fishers signing up to the measures. The scheme has a compulsory element requiring all vessels to avoid Real Time Closures and an optional component comprising a schedule of alternative selective gears which attract varying degrees of extra effort allocations depending on the estimated reduction in cod catch. The success of the scheme has monitored through a series of human observers and trials using on board close circuit TV (CCTV) cameras.

According to professional organisations representing the interests concerned, the Conservation Credits Scheme has brought the reality of conservation to the understanding of all players in the fishing sector. This could be seen by the high level of compliance when the scheme was voluntary in 2008 with 94% participation, wide spread recognition of closures and a high level of adoption of more selective fishing gear (WWF, 2009).

The discard ban in the Skagerrak

A current EU proposal to implement a discard ban in the Skagerrak is another example where Member States have some autonomy to develop their own technical solutions for their vessels to be authorised to exploit the fisheries in the area. The Skagerrak (West part of ICES IIIa) is a relatively small area jointly managed by Norway and the EU. Fisheries are subject to management and conservation measures established either individually or jointly by the Parties, including control measures taken by the relevant Coastal State. The main Member States concerned by the Skagerrak fisheries are Denmark and Sweden, with Germany, Belgium and Netherlands have some minor fishing opportunities in the zone.

The Commission proposal (COM (2012) 471) sets a baseline gear for demersal trawls, Danish seine, beam trawls or similar towed nets with a mesh size of at least 120 mm but allows the use of other gears that can be demonstrated to have equivalent selectivity characteristics, subject to scientific validation31. In anticipation to the formal adoption of the EP/Council Regulation, Denmark, Sweden and Norway have acted multi-laterally to implement technical measures in the Skagerrak that are consistent throughout their respective national waters. These technical measures include derogations from the reference gear, for gear configurations with the same selectivity characteristics. 31 The Regulation foresees that the Commission shall be empowered to adopt implementing acts to decide on the gears, including the selection devices attached to those gears, which may be used as having the characteristics of equivalent selectivity


Nevertheless, it is clear that in this case the Member States involved were able to identify and implement derogations for gears having the same selectivity characteristics as the reference gear, i.e. cod avoidance, and which suited the characteristics of the fisheries concerned. It is also interesting to note that the Member States have chosen to implement these technical measures through national measures due to delays in reaching a political agreement on the Commission proposal.

Box 1: Technical measures orientations in the Skagerrak

On 1st November 2012, Norway revoked the Skagerrak Agreement with the EU. This was followed by a joint ministerial declaration by Denmark, Norway and Sweden on 23rd November 2011, outlining a commitment to introduce a ban on discards in the Skagerrak by 1st January 2013 and to simplify and harmonise regulations on fishing in the Skagerrak, including technical measures32.

As a result, the European Commission drafted a proposed regulation on technical and control measures in the Skagerrak (COM (2012) 471). Article 6 of the proposed regulation, as worded in the Commission’s proposal, has a number of Technical Conservation Measures (Chapter II), including the obligation to land all catches (‘landing obligation’) with a specified timeline for introduction (Article 3). Article 6 states:

‘Specifications of fishing gears 1. The carrying on board or the use of any demersal trawl, Danish seine, beam trawl or similar towed net having a mesh size of less than 120 mm is prohibited.

2. By way of derogation from paragraph 1:

a) Gears having the same selectivity characteristics as the ones set out in paragraph 1 confirmed by experimental fishing trips or assessment from the Scientific, Technical and Economic Committee for Fisheries (STECF) may be used.

b) Trawls with minimum mesh sizes of less than 32 mm may be used provided the catch on board contains more than 50 % of one or more pelagic or industrial species.

3. The Commission shall be empowered to adopt implementing acts to decide on the gears, including the selection devices attached to those gears, which may be used as having the characteristics of equivalent selectivity to the gears set out in paragraph 1.

Those implementing acts shall be adopted in accordance with Article 17.’

In essence, paragraph 1 specifies a reference gear. Paragraph 2 a) allows for other gear configurations to be used, so long as the resulting selectivity characteristics are equivalent to the selectivity of the reference gear.

Paragraph 2 b) also makes provision for mesh sizes less than 32 mm to be used to target pelagic or industrial species, subject to them accounting for a minimum percentage of total catches (50% in Commission’s proposal, 80% as per proposed amendment by the European Parliament).

As described above, the original intention was to implement the landing obligation introduced as part of the CFP and accompanying technical measures in EU waters on 1st January 2013. However, at the time of writing the proposed EC regulation is still under negotiation. Instead, Denmark and Sweden implemented the required technical measures through national legislation effective from 1st February 2013 (Anon, 201333; see Order no. 247 of 11/03/2013 for implementation in Danish Law),

32 Joint Ministerial Declaration. Accessed: http://www.regjeringen.no/upload/FKD/Diverse/2011/Skagerrak.pdf

[14/10/2013]. 33 Agreed record of conclusions of fisheries consultations between Norway and the European Union on the

regulation of fisheries in Skagerrak and Kattegat for 2013. Clonakilty, 18th January 2013. Accessed: http://www.regjeringen.no/upload/FKD/Vedlegg/Kvoteavtaler/2013/EU/Scan002.pdf [14/10/2013].


with the intention to implement the landing obligation in EU waters from 1st January 2014. Norway has implemented technical measures on 1st January 2013 as planned34.

The technical measures implemented by Denmark and Sweden (and Norway) were based on the recommendations of the Working Group on Technical and Control Measures in Skagerrak (Annex III)35. These are reproduced below.

a) Pandalus fisheries 1. No change to the current cod end minimum size of 35 mm. 2. Mandatory use of a sorting grid with a maximum bar spacing of 19mm. 3. Allowing the use of a fish retention device provided that there is adequate fishing

opportunities to cover by-catch and that the retention device is: a. Constructed with a top panel of a minimum mesh size of 120 mm square mesh; b. A minimum of 3 meters in length; and c. At least as wide as the width of the sorting grid.

b) Directed Nephrops fisheries 1. Mandatory use of a sorting grid (35 mm bar spacing) together with a square mesh cod end

with a minimum mesh size of 70 mm.

c) Mixed demersal trawl and seine and Mixed Nephrops/demersal fisheries 1. The basic cod end minimum mesh size for these fisheries is 120 mm diamond mesh. 2. Allowing a derogation with the use of a 90 mm cod end together with a square mesh panel of

140 mm or a diamond mesh panel of 270 mm where in both cases the panel is: a. A minimum of 3 metres in length; b. Positioned no more than 4 metres from the cod line; c. the full width of the top sheet of the trawl (i.e. from selvedge to selvedge); and d. In the case of the diamond mesh, the panel be placed in a four panel section and

mounted with a joining ration of 3 meshes of 90 mm to 1 mesh of 270 mm.

Derogations for gear configurations in line with para. 2(a) of Article 6 of the proposed regulation, implemented by Denmark, Sweden and Norway, are discussed in detail below.

The gear configuration for directed Pandalus fisheries requires the use of a (Nordmøre) sorting grid. The Nordmøre sorting grid was initially developed to reduce fish by-catch in Norwegian shrimp trawl fisheries (Isaksen et al., 1992). The requirement for a Nordmøre sorting grid and diamond-mesh minimum mesh size of 35 mm in directed Pandalus fisheries has been in place in EU regulations since implementation of Council Regulation (EC) No. 27/2005, and has been mandatory in Swedish national waters since 1999. The gear configuration is highly species selective, with catches of Pandalus species exceeding 99 % (ICES, 2005).

The gear configuration for directed Nephrops fisheries also requires the use of a (Nordmøre) sorting grid. The use of Nordmøre sorting grids in directed Skagerrak Nephrops fisheries was first explored in response to a proposed Swedish unilateral moratorium of fishing for cod in October 2002. Research was therefore undertaken to identify gear configurations that allowed Nephrops fishing to continue with minimal discards of cod. The requirement for a sorting grid and square-mesh cod-end with minimum mesh size of 70 mm in directed Nephrops fisheries in the Skagerrak has been in place in EU regulations since implementation of Regulation (EC) No. 27/2005 and has been mandatory in

34 Regulations relating to fishing by vessels flying the flag of a Member State of the European Union (EU) in

Economic Zone of Norway and in the fisheries zone around Jan Mayen in 2013. Accessed: http://www.fiskeridir.no/english/fisheries/regulations [14/10/2013].

35 Agreed record of conclusions of fisheries consultations between Norway and the European Union on the regulation of fisheries in Skagerrak and Kattegat for 2012. Bergen, 2 December 2011. Accessed: http://www.regjeringen.no/upload/FKD/Vedlegg/Kvoteavtaler/2012/EU/Skagerrak2012.pdf [14/10/2013].


Swedish national waters since 2004. Experimental fishing trials have showed that the grid is effective at reducing catches of cod and other whitefish; catches of cod > MLS were reduced by close to 100 %, with catches of cod < MLS reduced by 71 % (Valentinsson and Ulmestrand, 2008).

The gear configurations for mixed demersal and mixed demersal/Nephrops fisheries are: a 120 mm DMC - i.e. the reference gear; a 90 mm DMC with a 140 mm square mesh panel - i.e. SELTRA-140; and, a 90 mm DMC with a 270 mm diamond mesh panel – i.e. SELTRA-270. Research leading to the SELTRA trawl configuration was initially undertaken in the Kattegat to identify alternatives to sorting grids that would reduce cod catches, due to difficulties in using sorting grids on smaller vessels as well as reduced catches of larger Nephrops (e.g. Madsen et al., 2009). The SELTRA-270 is one of 7 gear configurations that can be used in the Kattegat by Danish fishers (see Order No. 391 of 16/04/2010). Recent assessments using 2011 data have estimated that the use of a SELTRA-270 trawl would have reduced cod catches by 45 and 39 % for cod below and above MLS respectively compared to a 90 mm DMC, with similar reductions expected for the SELTRA-140 (Anonym, 2013). This compares to estimated reductions in cod catches of 58 and 22 % for cod below and above the MLS for a 120 mm DMC, compared to a 90 mm DMC.

It is clear from examination of the alternative gear configurations above that there are similarities across the derogated gear configurations. The gear configurations were not developed in response to the proposed Regulation on technical and control measures in the Skagerrak. Instead the gear configurations were primarily aimed at cod-avoidance, as indicated by the listing of the gear configurations in letters to the Commission outlining cod-avoidance measures implemented in 201336,37.

This raises an interesting question with respect to interpretation of the wording of Para 2a), i.e. ‘Gears having the same selectivity characteristics…’ Information available suggests that the comparison of selectivity characteristics was undertaken on the basis of species-specific selectivity, and more specifically the selectivity for cod.

The landing obligation

The landing obligation introduced under Art. 15 of the new Basic CFP regulation should act as a strong incentive for the industry to reduce unwanted catches in the first instance. It will also create the conditions for bottom up initiatives in relation to improvements in the selectivity of fishing practices through regionalisation.

At this stage, it is not possible to anticipate how the industry will react to this measure in conjunction with the exemptions and flexibility tools provided for in the regulation (exempted species, de minimis and inter-quota flexibility). However, there are numerous examples whereby Member States have utilised the legal possibility to adopt supplementary and complementary technical measures applying to their own vessels to unilaterally reduce catches of unwanted species on certain stocks. One of these examples is the introduction in the French Nephrops fishery in the Bay of Biscay of additional selectivity devices to minimise catches of undersized juvenile Nephrops and hake. Other examples include improvement in the selectivity of coastal shrimp fisheries in Belgium and in the Netherlands. Some RACs have also already started to develop projects aiming at reducing unwanted catches (e.g. the SIMBAD project under the SWWRAC).

In conclusion, some recent experience demonstrates that the industry, with the support of their authorities and research institutes, has the capacity to develop bottom-up approaches if they are properly incentivised to do so by regulatory instruments, or unilaterally to improve the sustainability of exploitation of stocks which are critical in supporting their business activities. In view of these past 36 Information on progress with Danish Cod Avoidance measures announced at the December Council. Letter to

C. Montesi, DG Mare. No. 20909/533407. 37 Swedish Cod Avoidance Measures. Ref Ares (2013) 729745, 19/04/2013.


experiences, and considering the strong incentive that the landing obligation will introduce as from 2014, it is considered important that EU legislation leaves sufficient flexibility to the industry to develop its own measures under bottom-up initiatives.

Environmental measures?

Environmental measures contributing to the objectives of MSF Directive and the Birds and Habitats Directives generally imply restrictions on fishing activities. Most environmental measures translate into restrictions on access to certain fishing areas within MPAs, or into additional technical rules to avoid catches of protected species (marine mammals, marine reptile or seabirds). Therefore, environmental measures are often resisted by the industry as they often impose additional constraints on fishing operations for little perceived benefit.

The only known incentive to avoid interactions between fishing activities and the environment is market-driven through voluntary eco-labelling of fisheries. In particular, the Marine Stewardship Council fishery standards (MSC) include ‘principle 2’, requiring that ‘fishing operations should allow for the maintenance of the structure, productivity, function and diversity of the ecosystem (including habitat and associated dependent and ecologically related species) on which the fishery depends’. A fishery that does not comply with this principle cannot be certified, or can have its certification suspended if assessed as contravening this principle.

MSC certification currently covers only 12% of EU catches so far (or 19% if the now suspended EU mackerel fishery and the problematic Portuguese sardine fishery are included)38 and only a limited number of fisheries so its potential to affect real change in behaviour is still negligible. However, this percentage is probably bound to increase with growing public pressure for fisheries to be conducted sustainably.

For fishing activities that are not covered so far by an eco-labelling scheme, either because they are prevented to do so by the nature of the fishery or because they do not estimate the investment into certification as worthwhile, there seems to be few incentives for environmental protection. This implies that technical measures designed to support compliance with EU environmental legislation will still have to follow a prescriptive approach with measures adopted by Member States (typically in their territorial waters) or jointly under Art. 11 of the reformed CFP to address problems having a transnational dimension, typically in offshore waters outside territorial waters.

38 MSC, comm. pers., 7 Nov. 2013


2 Problem definitions

2.1 Description of the main problems

The weaknesses in terms of efficiency, effectiveness, and acceptability described in the previous sections are underpinned by a number of specific problems with the technical measures framework, as considered below.

Lack of flexibility Driver: the current legal architecture for designing and adopting technical measures is time-consuming and burdensome. Problem: technical measures cannot be easily adapted to changing conditions or requirements in a timely and proportionate manner

Under the current CFP, technical measures are adopted through the co-decision procedure (also referred to as the ordinary legislative procedure). One of the first amendments to the technical measures regulation adopted under the ordinary legislative procedure (EP/Council Regulation (EU) No. 227/2013 39 ) demonstrated how complex and lengthy the process is. The purpose of this regulation was essentially to extend the period of application of a number of existing technical measures pending the completion of the reform of the CFP. The decision-making process nevertheless took 9 months40 to complete for what was essentially to make permanent, measures originally introduced on a temporary basis.

To be effective for stock conservation purposes, technical measures ideally need to be framed in the legislation in such a way as to allow adjustment in a timely fashion to take account of changing conditions in stock composition or distribution, which cannot be predicted in advance due to their relationship with environmental conditions and variability in recruitment. For stock assessment purposes, recruitment is currently forecast from analytical relationships between spawning stock biomass and recruitment. In most cases, these relationships are derived by fitting a mathematical model to a time-series of historical data. However in reality, the relationship is not straightforward. In particular, prevailing environmental conditions have an influence on recruitment success. Data collected on abundance of juveniles during scientific research cruises are used to refine estimates on the strength of recruitment.

In general, exploited fish species become vulnerable to fishing gears soon after they are recruited, and the recruitment of relatively more abundant year classes to the fishery may have no beneficial effect on the stock if they are caught and heavily discarded. This means that there is a need for swift adoption of specific technical measures to protect the new recruits, in particular when the stock is considered as over exploited, or when there are strong year classes which should be protected.

As shown in the example below (see Box 2), the timeframe to adopt specific measures to protect a newly recruited cohort is generally fairly short (one or two years). From the time that ICES advice is published on estimates of abundance of recruits, managing authorities typically have less than one year to adopt measures to protect young fish before they become fully vulnerable to fishing gears,

39 Regulation (EU) No. 227/2013 of the European Parliament and of the Council of 13 March 2013 amending Council Regulation (EC) No. 850/98 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms and Council Regulation (EC) No. 1434/98 specifying conditions under which herring may be landed for industrial purposes other than direct human consumption (OJ L 78, 20.3.2013, p. 1).

40 The initial proposal was submitted by the Commission in June 2012, and the final act published in the Official Journal in March 2013


and less than two years before fish are mature and in capacity to reproduce. The situation is similar for most other demersal fish species exploited.

Box 2: Cod recruitment

Recruitment for cod is estimated by ICES as the number of individuals aged 1 year old present in the population. The following figure shows an example of estimates of recruitment numbers for cod in the North Sea, Eastern Channel) and Skagerrak as published this year (ICES, 2013b).

Figure 2: Recruitment time-series for cod in Subarea IV (North Sea) and Divisions VIId (Eastern Channel) and IIIa West (Skagerrak) as published this year (ICES, 2013b)

According to available growth curves for cod, individuals aged 1 measure 15 cm in length on average. Selectivity parameters of bottom trawls, the main gear used to catch cod in EU waters, indicate that cod become vulnerable to trawls equipped with 120 mm mesh size codend when they measure 35 cm on average (L50 as determined by Madsen and Holst (2002)), i.e. when they are two years old. Cod reach maturity when they are approximately 3 years old (45 cm).

A specific example of where the lack of in-built flexibility in the current legislative regime has proven detrimental to stock conservation and support for the objectives of the CFP is provided by the haddock stock in the Celtic Sea (see Box 3). Scientific advisory bodies identified a strong juvenile cohort of haddock at the end of 2009 that would be under threat if the selectivity of legal fishing gears was not modified to take account this pulse in recruitment. However, following long discussions with Member States and the NWWRAC it was not until the end of 2012 that the Commission was able to adopt an ‘emergency act’ to enforce more selective fishing techniques. By that time, the cohort had been heavily fished using existing gears, resulting in a failure to reap the long-term stock benefits that would have resulted if the strong year class had been protected.

Box 3: Haddock protection in the Celtic Sea

The demersal fisheries in the Celtic Sea represent a multi-species fishery that catches a wide variety of fish and shellfish species. Essentially there are three fisheries operating: a directed Nephrops trawl fishery, a mixed finfish/Nephrops fishery and a targeted whitefish trawl and seine fishery.

Prior to the response to discarding, the situation in the Celtic Sea was one in which minimum mesh size was linked to specific catch composition rules. Vessels retaining >35% Nephrops could use mesh sizes between 70 and 79 mm. Vessels targeting mixed demersal species41 on the other hand were required to use mesh sizes between 80 and 99 mm, increasing to 100 mm where whitefish (cod, saithe and haddock) exceed 30% of the catch. Unlike other areas, and indeed the majority of EU trawl fisheries, there was no requirement for any vessels to use a square mesh panel or any other 41 for demersal species contained in annex 1 list (850/98)


selectivity device in any fishery in the Celtic Sea although the issue of discarding in the multi-species fisheries of the Celtic Sea has long been recognized. Discarding rates in the Celtic Sea have been generally high, with around 40-60% of the total haddock and whiting catch discarded (ICES, 2011b). Discard rates typically vary with discarding rates increasing with increased stock biomass and peaks in recruitment and the interaction of the ecology, regulations and markets.

Within this context it was recommended that steps should be taken to address the issue of discarding. ICES advice for 2010 noted that in addition to regulation of the fisheries through TACs, further management measures should be introduced to reduce discarding of small whiting and to protect the strong recruitment of haddock in 2009 (ICES, 2010).

During the December PECHE Council of 2010 discussing fishing opportunities for 2011, as part of the agreement to increase the TACs for haddock and whiting by 15% (as a result of strong recruitment in both stocks), Member States committed to reduce discarding associated with fisheries catching these species in the Celtic Sea. This 15% increases in the 2011 TAC for haddock and whiting in the Celtic Sea was linked to a commitment to improve selectivity of these species. In addition, there was also some anecdotal evidence emerging in 2010 from commercial and recreational fisheries of a 2009 strong year class of cod. The TAC for cod was eventually subject to an in-year revision increasing the 2011 TAC from 4 023 tonnes to 5 379 tonnes (34% increase) through Council Regulation 1106/201142, taking note of new selectivity measures planned.

In response to the need to address the issue of discards, during 2010 the STECF was asked to examine the effectiveness of existing and potential technical measures to address discarding in the Celtic Seas. The STECF concluded that ‘to reduce the high levels of discards of haddock and whiting observed in the fishery and to maximise improvement in the spawning stock biomass of haddock ... improvements in the size selectivity of the gears currently in use is urgently required’ (STECF, 2010). To bring about these urgent improvements it was suggested that modifications to the gears used through the introduction of square-mesh panels and larger mesh size should be introduced. The challenge in identifying measures was to ensure that size selective properties are enhanced without negatively impacting on the catches of the target species. At the same time, it was recognised that the interactions between allowable landings (TACs & quotas) and recruitment meant that regulations created conditions for increased discarding due to quota limitations and compliance with catch composition rules. This was the case in 2010 where the increased recruitment of haddock and whiting together with restrictions on cod led to discarding.

Based on STECF conclusions and results of research work produced by Ireland, the NWWRAC issued a proposal on improvements of Celtic Sea Selectivity measures to reduce discards, especially of cod, haddock and whiting (NWWRAC, 2011). This was to be achieved through the use of square-meshed panels which have been shown to reduce fishing mortality significantly by allowing fish to escape and is an effective measure that can be introduced immediately. The NWWRAC proposal detailed the characteristics of the square mesh panels to be used depending on the various fleet segments likely to catch haddock, whiting and cod.

During the December PECHE Council of 2011, Member States concerned (France, Ireland and United Kingdom) reiterated their willingness to introduce additional selectivity measures in order to reduce discarding of stocks of haddock, whiting and cod in the Celtic Sea, and committed to introduce, no later than April 2012, the measures proposed by the North Western Waters RAC in October 2011.

42 Council Regulation (EU) No. 1106/2011 of 20 October 2011 amending Regulations (EU) No. 57/2011 and (EC) No. 754/2009 as regards the protection of the species ‘porbeagle’, certain TACs and certain fishing effort limits set for Germany and Ireland


In response, France unilaterally adopted a National Regulation imposing the use of square mesh panels to its vessels active in the Celtic Sea as from 1st April 201243. For some reasons, reportedly linked to some difficulties to swiftly adopt a legislating act through National procedures, Ireland and United Kingdom could not do the same. This prompted the Commission to adopt the Commission Implementing Regulation (EU) 737/2012 on the protection of certain stocks in the Celtic Sea, invoking as the legal basis, provisions of Art. 45 of Council Regulation (EC) No. 850/98 for adoption of emergency measures.

Selectivity of active fishing gears has always been seen as an issue in the Celtic Sea. Stocks of whiting, haddock and cod were generally assessed as being in a poor state in the year 2000. Strong recruitments identified in 2009 were seen as an opportunity to maximise improvement in the spawning stock biomasses if adequately protected from interactions with fishing gears through gear selectivity. However, it took almost two years between the recommendations of ICES in 2010 and the actual implementation of additional selectivity measures in 2012. During this period, the stronger 2009 year classes have probably been intensively fished, with substantial proportion discarded as a result of both inadequate selectivity properties of fishing gears and limits on landings. ICES (2013a) estimates that haddock discards in 2011 and 2012 have been far greater than official landings (e.g. approx. 10 000 tonnes landed in 2011 vs. approx. 16 500 tonnes discarded). In its proposal for fishing opportunity in 2014 (COM (2013) 753), the Commission underlines ongoing problems with demersal fish stocks in the Celtic Sea, with a possible reduction of 75% of fishing opportunities on haddock in this area compared to 2013.

Seasonal closures for the protection of juvenile or spawning aggregations of fish are a third example of the technical measures framework failing to provide the flexibility required to support the objectives of the CFP. A review of legislation shows that some seasonal closures adopted during the 1980’s have remained in place virtually unchanged. For some of these closures (i.e. Herring closures, plaice boxes), an evaluation carried out by SGMOS (2007) suggested that effectiveness could be improved if the limits of the closures were reviewed and adapted to changing patterns in the distribution of stocks. According to the findings of the retrospective evaluation of technical measures, fishermen’s associations have a similar view, indicating that many closures seem to be set ‘in stone’ once they have been implemented through a legislative act.

The two examples provided above, show that due to the inflexibility of the current technical measures legislative framework, it has typically not been possible to adjust or revise technical measures in a timely manner to match current fishing conditions and/or developing gear technology and knowledge. In addition to the negative effects on the conservation of stocks, this has frustrated the industry and led to disillusionment with the technical measures in place, driving non-compliance.

Concerning technical measures in support of environmental legislation, there is also evidence that the current technical measures framework lacks flexibility and proportionality.

An example related to environmental legislation pertains to offshore marine protected areas, which are progressively being designated by Member States. The current technical measures framework has adequately addressed protection of some deep-sea coral reef habitats through prohibition of demersal fishing in such sensitive habitats. However, knowledge about deep-sea habitats is progressing and new remarkable features have been identified requiring modification to the limits of existing closed areas, or implementation through legislation of new protected areas, as recently advised by ICES (2011a). Incorporating this ICES advice into the EU acquis in a proportionate manner requires more flexibility than offered under the current framework.

43 Arrêté du 12 mars 2012 portant définition de mesures techniques dans les zones CIEM VII f,VII g et à une partie de la zone CIEM VII j (au nord de 50° nord et à l’est de 11° ouest) NOR : AGRM1206391A


Prescriptive nature Driver: The current management approach to technical measures as an input tool has resulted in a high number of rules focusing on the technical design characteristics of fishing gears, attempting to control too many technical aspects of fishing operation with a great level of details, rather than focusing on the desired outputs of the regulations.

Problem: the technical measures regulations are overly prescriptive and detailed. This has resulted in a complex regulatory framework with multiple derogations which is difficult to understand and to enforce.

The history of technical measures in EU waters, as well as in non-EU waters, is one of numerous regulations, amendments, implementing rules and temporary technical measures introduced into the annual TAC and Quota Regulations as a stop-gap. When considering all the different sea basins, including non-EU waters, since 1980 no less than 90 different technical measures regulations or regulations containing technical measures have been enacted by the EU44. The figure below (Figure 3) shows the progression over time of the number of regulations enacted by EU institutions.

Figure 3: Cumulative number of technical measures regulations introduced since 1980. Source: STECF (2012c)

According to STECF (2012c) , the number of regulations and the increasing complexity is the result of a technological and regulatory ‘arms race’ between the fishing industry and the EU managing authorities. The fear of losing fish as a consequence of the introduction of new technical measures has incentivised the industry to deploy tactics that mitigate these losses and has led to a technological race to develop and deploy technical fixes to minimise such losses often through derogations. In response, regulations are subsequently amended as a result, leading to increasing complexity in the regulations and elevated difficulties in terms of monitoring, control and surveillance. The following graph illustrates how the ‘arms race’ process has developed.

44 This number includes regulations now superseded by more recent regulations.


Figure 4: The effects of how the current framework of technical measures in the EU affects control and enforcement activities. Adapted from STECF (2012c)

For example, the use of stiffer or heavier twine by the industry to offset previously introduced increases in mesh size from 90 mm to 100 mm in the North Sea became widespread in the 1990’s. This subsequently led to research into the potential impact of such twine on codend selectivity, with results used as the basis to introduce additional legislation (in Council Regulation (EC) No. 850/98) which limited the thickness of twine that could be used. It took another five years to develop an objective method to measure twine thickness and implement this through a Commission Regulation (EC) No. 129/2003, which quickly became obsolete and was then replaced by Commission Regulation (EC) No. 517/2008. Despite the detailed procedures in this latter regulation, twine measurement remains an issue for controllers, given the differences in the specifications of different twines commercially available.

The overly prescriptive and detailed nature of technical measures can also have unintended consequences. There are a number of examples of where research has successfully identified gear modifications that would improve the selectivity of the nets, but where the industry is prevented from using them on a voluntary basis as their nets would be contrary to rules in force.

An example refers to the use of separator panels by Nephrops trawlers in the Irish Sea. Mandatory use of separator panels was introduced by Council Regulation (EC) No. 254/2002 as a condition to be authorised to fish in an area designed to protect cod. The separator panel and where it could be used and how it should be rigged were specified in great technical detail in the Regulation. In 2009/2010, Ireland tested a sorting grid in the Nephrops fishery in the Irish Sea as part of the cod plan, but even though the results from these tests showed this device to be significantly more effective than the separator panel at releasing cod, it could not be used within a certain area because the regulation prescribed the only legal gear that could be used was the less effective separator panel. It was only in 2013 that the legislation was changed through EP/Council (EU) Regulation 227/2013 modifying Council Reg (EC) No. 850/98.

Prescriptive input regulations (e.g. measures on mesh sizes or dimensions of codends) can also stifle positive technical innovation as fishermen are encouraged only to use gears that comply with minimum standards and not to focus on the intention of regulations to promote more selective and environmentally-friendly fishing practices.

The many technical and highly prescriptive regulations place a high burden on Member State control authorities and fisheries management administrations in terms of the costs and complexities involved

Adding more technical

regulations

Industryresponse to

mitigate impact

Technical solution to initial industry

response

Scientificevaluation of

response

Introduction of new measures

Dilution of control

effectiveness

Requirement to enforce more

regulations


in enforcing such a large range of measures. Analysis shows that technical measures focusing on gear configuration, by-catch of protected species or area closures can only be controlled through seaborne or airborne inspections. VMS supports identification of potential infringements but can only identify when and where a vessel is fishing, not the gear or operation of that gear. VMS cannot be used on its own as sufficient evidence in Court to result in prosecutions, as it is often necessary to apprehend offenders flagrante delicto with acceptable standards of evidence. The prescriptive approach also imposes administrative burden on the fishing industry which has to keep up with the details of a complex legislation to ensure compliance.

One example of an overly prescriptive regulation requiring disproportionate efforts to enforce is provisions for the use of deep-sea fixed nets included under Regulation (EC) No. 850/98. Under a broad objective of protecting deep-sea species (principally deep-sea sharks), regulations first introduced under the fishing opportunities regulations and now incorporated into the main overarching technical measures regulation regulate the use of fixed nets likely to interact with these species. Whilst the legislation prohibits use of fixed nets at charted depths greater than 200 metres, derogations are possible for fishing with fixed nets in waters with a charted depth of more than 200 metres but less than 600 metres under certain conditions. The derogations also require prescriptions on the maximum height of nets, maximum length, maximum soaking time and hanging ratios. These conditions vary according to the mesh sizes used. In practice, Member State control authorities report that this legislation is not controllable; not only because the hanging ratio and procedures to measure it are not defined, but also because controlling compliance would require a disproportionate amount of time and effort at sea for determining the soak time, checking depths, and controlling dimensions of series of nets that can measure up to 100 km in length per vessel.

Discussions with Member State control authorities identified other examples of issues which make enforcement of technical measures problematic, or which can lead to differences in approaches by Member States. These include inter alia:

• Interpretation of Art. 6 of Council Regulation (EC) No. 850/98 notably Art. 6.1 and 6.2. Some Member States consider that the codend used by certain beam trawlers are legal while other Member States controlling the same vessels have filed infringement reports;

• Interpretation of ‘attachments’ to trawls, e.g. chafers, selvedges, extension pieces (untapered sections), flappers or other fittings on a trawl described in Commission Regulation 3440/84 (as amended three times);

• Interpretation over what constitutes an obstruction of the mesh of fishing gear as prohibited by Art. 16 of Council Regulation (EC) No. 850/98;

• The word ‘approximately’ found in several technical measures regulations to describe mandatory mesh shapes, with interpretation of ‘approximately’ being subjective; and

• Interpretation as to whether knots should be included when measuring mesh sizes according to prescriptions set out in Commission Regulation (EC) No. 129/2003.


Insufficient involvement of fishermen in the decision making process Driver: Technical measures are adopted under normal legislative procedure (i.e. cod-decision of the Council and Parliament) - a ‘top-down’ approach. Problem: the decision making process is not fully transparent and does not sufficiently take into account fishermen’s knowledge (according to industry representatives), undermining acceptance and hence, compliance.

For the purpose of this study, 12 national fishermen organisations of Member States bordering the North Sea and the Northern Atlantic were interviewed about their perception of technical measures and the way forward. In total, 88% of the respondents felt that the decision making process does not sufficiently take into consideration fishermen’s knowledge, and all (100%) agreed that fishermen should be involved in the definition of technical measures. These statements are supported by the view that many technical measures regulations were defined following very little effective consultation, and no stakeholder feedback was integrated into the regulations. In fact, many of the technical measures currently in force have been adopted by the Council as the outcome of a negotiation process which reflects a compromise between the Member State political authorities and the Commission, often obtained in the context of negotiations on fishing opportunities.

The view of the industry is firmly that better consultation of fishermen’s organisations would have ensured that technical measures were more practical and effective, and would have resulted in higher compliance levels. Several independent reviews of the management framework of technical measures (e.g. Suuronen and Sarda (2007), Delaney et al. (2007) or Macher et al. (2008)) have similarly concluded that successful use of technical measures depends largely on their acceptance by industry.

Currently technical measures are based on negative, mostly coercive incentives in a hierarchical governance system, i.e. top-down rather than bottom-up. Fishermen generally do not feel part of a participatory process where measures are agreed and often therefore do not consider them as legitimate or equitable. Moreover, because of their hierarchical formulation fishermen often perceive technical measures as not practical, of not reflecting current fishing practice, and of being contradictory. This combination of factors leads to low compliance. For example, some fishermen associations reported during interviews conducted in the frame of this evaluation that legal mesh sizes and catch composition rules associated are not adapted to specific fisheries. In certain cases, fishermen would not discard commercial catches of species in excess of the legal percentages as it is considered as a waste of natural resource and loss of income. In the flatfish beam trawl fishery, fishermen are reported to be tempted to circumvent the rules on mesh sizes (legally or illegally) to catch plaice above the minimum landing size. Small sole below the MLS caught in association are kept on board beheaded as there is no legal mean to control its size. Other examples of non-compliance included fishing in closed areas (e.g. Mackerel boxes) as it is felt that the limits of the areas are inadequate or in the wrong place and therefore do not offer any conservation benefits.

This being said, the involvement of the industry has improved over the past few years for two main reasons. Firstly, with the 2002 CFP reform and the creation of the RACs in 2004, the industry now has more possibilities to interact with the Commission and Member States in developing technical measures. This has led to some success stories - the recent adoption of a Commission regulation for the protection of certain stocks in the Celtic Sea, which although took a long time to adopt into legislation, did lead to improvements in selectivity on the basis of measures proposed by the industry. Secondly, it can be assumed that the co-decision procedure with input of the European Parliament and procedural obligations placed on the Commission in developing proposals (i.e. impact assessment) results in greater transparency in the debates surrounding the introduction of new technical measures (although as noted above may slow down the process of decision-making).


Poorly defined targets and objectives of technical measures Drivers: Perceived negative impacts (losses of catches) from technical measures, and the desire by managers to broker a deal. Problem: the expected benefits of technical measures are not realised in practice. From a political perspective, technical measures often form part of a negotiation strategy, potentially leading to dilution of the final measures agreed, or measures being introduced without any scientific basis.

According to representatives of the Commission and of the fishing industry met in the frame of this evaluation, some technical measures have been adopted in the context of political negotiations on fishing opportunities, often as a means to increase or limit reductions in TACs in comparison with the recommendations made by the Scientific Advisory bodies. As illustrated by several declarations issued after debates on the fishing opportunities regulations during the December Councils of Minister meetings, several commitments have been made on increasing protection of juvenile fish or avoidance of overexploited species through implementation of technical measures within a short delay. Using technical measures as a negotiation tool in the discussions on fishing opportunities results in poorly prepared technical measures regulations, often incorporating derogations, in the vain hope they may have some benefits, rather than such measures being informed by sufficient consultation and scientific evidence of their likely benefits.

Two examples relate to the specification of selectivity devices for beam trawls and otter trawls to reduce by-catches of cod in the North Sea and West of Scotland as defined in Commission Regulation (EC) No. 2056/2001 with a broad non quantified objective of ‘reducing catches of juvenile cod by establishing a general increase in the mesh size of towed nets’ and prescribing ‘additional conditions to ensure that capture of juvenile cod by towed nets of mesh size less than 120 mm is reduced’.

The particular panel introduced for beam trawls is defined using a detailed formula for the construction of the large mesh (180 mm) panel section in the upper part of the beam trawl (Art. 5.3 of Commission Regulation (EC) No. 2056/2001). The original research work trialed much larger mesh sizes of 2 500 mm to 5 000 mm which were capable of reducing cod and whiting catches by 30–40 % with virtually no losses in flatfish (particularly sole and plaice¸ see van Marlen (2003)). It was eventually agreed by STECF that the 180 mm panel could not bring any substantial benefit. This example illustrates how measures agreed in the legislation can significantly depart from the experimental design eventually tested and on which the technical measures are supposed to be based.

This example illustrates the regulatory focus on design elements rather than on the desired outcome of the regulation.

The same Commission Regulation (EC) No. 2056/2001 specifies requirements for Nephrops trawls in the North Sea and West of Scotland. Art. 5.2(iii)) of this regulation describes a large mesh panel directly behind the headline of trawls for which no scientific or experimental assessment has been carried out. By simple comparison with other experimental work, for example Graham et al. (2003), it can be concluded that the design features would have no impact on the catch rates of juvenile cod due to their specific swimming behavior. This illustrates how some ineffective measures have been introduced, probably under some kind of political pressure from the interests concerned.

Another example of poorly defined technical measures relates to a closure of certain fishing grounds in the Irish Sea (see Box 4 below). This detailed example illustrates how politically driven derogations can negate the expected benefits of a technical measure.


Box 4: The Irish Sea cod closure

Following advice from ICES that the stock of cod in the Irish Sea (ICES Division VIIa) was at a serious risk of collapse, a cod spawning closure was established by Council Regulation (EC) No. 304/2000 under the broad objective of ‘allowing as many cod as possible to spawn’. Based on socio-economic considerations, derogations for defined Nephrops gears in defined Nephrops fishing grounds were permitted, as well as beam trawl activity within the closure. Because of the initial restrictions and derogations, some sections of the fleet felt unfairly constrained, and many fishing representative groups lobbied for mitigating measures that would not reduce the opportunity of fishing for other species. Further requests for derogations were made by Member States, which were permitted using authorisations to carry out experimental fishing operations.

In view of the results of experimental fishing, Council Regulation (EC) No. 300/2001 allowed an additional derogation for further experimental haddock fishing using semi-pelagic trawls in a defined area, and for the use of Nephrops trawls with an inclined separator panel within the southernmost part of the Nephrops grounds closed to all other forms of fishing, although cod catches are likely with this type of gear (Rihan, 2003). Derogation was also granted to use less selective double twine in the construction of the codend. The area covered by the closure was also considerably reduced, leaving the eastern component of the cod stock unprotected. In 2002, Council Regulation (EC) No. 254/2002 removed the semi-pelagic trawl derogation. The closure details in this latter regulation have remained unchanged for the following 10 years.

Figure 5 illustrates the evolution of the Irish Sea closure in 2000, 2001 and 2002.

Figure 5: Evolution of the Irish Sea cod closure in 2000, 2001 and 2002 onwards. Source: SGMOS (2007)


According to SGMOS (2007), the cod closure in 2000 was adequately designed to protect cod spawners, although it was estimated at that time that derogations granted could roughly halve the expected benefits from the closure. These derogations and the reduction of the area of closure in 2001 diluted its effectiveness. Also, enforcement of the rules became problematic due to multiplication of applicable texts and associated monitoring requirements. In fact, according to the evaluation published by Kelly et al. (2006), the Irish Sea cod stock at the end of 2004 was in a state similar as in 1999. The most recent ICES evaluation confirms that the stock is still exploited unsustainably and advises on the basis of the MSY approach that there should be no directed fisheries, and bycatch and discards should be minimized in 2013 and 2014 (ICES, 2012).

2.2 Underlying drivers of the problems

The following table provides a summary of the identified drivers of the problems, as discussed in the previous section. Most drivers relate to the governance framework currently in place for adopting technical measures in support of the Common Fisheries Policy and environmental legislation, which is based on a centralised top-down approach by EU institutions.


Table 1: Summary of problems underpinning a failed technical measures framework

Problem Driver Effects

Lack of flexibility

Technical measures cannot be adapted to changing conditions or requirements in a timely and proportionate manner

The current legal architecture for designing and adopting technical measures is time-consuming and burdensome

Undermines effectiveness of technical measures (incapacity to swiftly adapt measures to changing patterns in stock distribution and emerging requirement for ecosystem protection )

Prescriptive nature The technical measures regulations have become overly prescriptive and detailed. The prescriptive nature of technical measures regulations also imposes a high burden on the control authorities of Member States.

The current management approach to technical measures focuses on the technical design characteristics of measures rather than on desired outputs, with too many rules trying to regulate too many aspects of fishing operations.

Undermines effectiveness of the measures. Creates legal obstacles for the development of more selective fishing practices. Increase administrative costs (in particular, high costs of control) and associated administrative burden on MS Control authorities and the industry to keep up with a complex legislation.

Insufficient involvement of fishermen in the decision making process The decision making process is not fully transparent and does not take into account fishermen’s knowledge

Technical measures are adopted through ordinary legislative procedure following a top-down approach

Undermines acceptability of the measures by the industry, undermining compliance Undermines effectiveness of technical measures (industry may have better technical input) Increases control burden (However, the situation has improved with increased proactive RAC inputs)

Poorly defined objectives and success criteria The expected benefits of technical measures are not realised in practice. From a political perspective, technical measures often part of a negotiation strategy, potentially leading to dilution of the final measures agreed or measures introduced without any scientific basis

Perceived negative impacts on the industry (short-term losses of catches) and the desire of managers to broker a deal

Undermines effectiveness of technical measures (technical measures adopted are suboptimal)


2.3 Who is affected by the problems?

Given that this evaluation is concerned with technical measures pertaining to the North Sea and the North East Atlantic, the technical measures framework, and the associated problems described above, principally affects stakeholders in the following countries:

• Belgium • Denmark • France • Germany • Ireland • Netherlands • Portugal • Spain • Sweden • UK (departments in England/Wales, Scotland, and Northern Ireland);

The following table provides some selected data for these countries. The notes provided below the table are important caveats in terms of attributing economic and social characteristics and benefits of fisheries in the North-east Atlantic and the North Sea to the Member States concerned, but the table is nevertheless indicative of the number/scale of stakeholders in the region that is the focus of this evaluation.

Table 2: Selected data on Member States and their stakeholders impacted by technical measures in the North-east Atlantic and the North Sea

Source: STECF (2013a), EC (2012) Notes: 1) Long-distant fleet vessel numbers and employment removed from fleet no., employment no., catch volumes (except for Spain), and fleet GVA columns. 2) Subject to note 1, data on catching sector relates to activities in all areas, most obviously Spain and France figures include data relating to Mediterranean fisheries, Sweden, Germany and Denmark figures include data relating to Baltic, etc. 3) Value of processing output, number of processing companies, and employment created, is generated not just from landed volumes, but also by imports.

In each of these countries, the EU fishing industry represents an important economic sector creating significant levels of employment. This is especially the case in some regions of particular Member States, where the sector may be a significant economic sector and make important contributions to regional value-added and employment (the fisheries-dependent regions). Earlier text in this report has highlighted how the catching sector is negatively impacted by the problems resulting from the current situation e.g. complex, inflexible, and top down regulations, defined without sufficient consultation with

Fleet (no.)Employment (FTE) no.

Catch volume (tonnes)

Fleet GVA (EUR '000s)

No. of producer organisations

Value of processing output (EUR '000)

Processing employment no.

No. of processing companies

Belgium 89 342 20,138 35,901 1 380,800 1,040 37 Denmark 2,819 1,661 710,977 249,128 3 1,644,000 3,596 123 France 7,202 7,009 463,702 590,766 26 2,708,900 14,983 314 Germany 1,653 1,258 78,085 57,759 15 2,076,800 8,389 233 Ireland 2,146 3,166 199,483 111,577 3 383,500 1,763 65 Netherlands 847 1,768 339,421 109,067 8 639,700 3,335 121 Portugal 8,413 16,856 178,841 283,617 13 732,600 6,613 191

Spain10,560 26,404 760,765 n/a 32 3,837,700 19,430 709

Sweden 1,342 974 173,401 59,791 6 423,800 2,042 217 UK 6,475 7,192 597,357 492,535 21 3,089,800 19,586 337 Total 41,546 66,630 3,522,170 1,990,141 128 15,917,600 80,777 2,347


them. According to DCF data for 2010 for the supra region North Atlantic, North Sea and Baltic Sea, the number of fishing enterprises concerned is ≈ 28 200, almost all SMEs, almost all of which can be considered as micro-SMEs45.

Stakeholders within the fishing industry include not just those working on fishing vessels in the catching sector, but also those in upstream businesses (i.e. those supplying inputs to the catching sector such as gear suppliers selling gear impacted by technical measures regulations), those in downstream businesses (e.g. those marketing, transporting and processing catches made by the catching sector), and representative organisations of both catching sector and downstream sector businesses. For all businesses, their primary concern is profit-making and generating employment, recognising that sustainable long-term economic profitability depends on long-term sustainability. As evidenced by consultations completed as part of this study, the catching sector and its representation are fully supportive of technical measures even if short-term reductions in profitability might result but where they have a positive long-term environmental and economic benefit. However, businesses operate in a commercially competitive world, and so it is also a primary concern of businesses to ensure that there is a level playing field; both between Member States, and between those in the EU and those catching sectors operating in the same waters exploited by EU vessels. The same rules applying to vessels from non-EU countries is equally important to EU fishermen.

Member State administrations (relevant Ministries and fisheries departments) in all the EU countries mentioned above are also affected by the problems already discussed. They are responsible for managing and controlling the activities of their respective fishing industries, and of other Member State nationals fishing in waters under their jurisdiction. The introduction of technical measures tend to have a negative impact on their fishing sector making acceptance and enforcement difficult, while at the same time not putting such measures in place can have negative connotations later on through the reduction of fishing opportunities for depleted stocks Both are difficult to ‘sell’ to the fishing industry. Additionally, the control authorities of Member States face a difficult situation in trying to control and enforce many regulations which are complex, and in many cases not supported by the fishing industry (increasing non-compliance).

Member State research institutions are similarly affected. There are many research institutions in the Member States bordering the North Sea and the North Atlantic that are engaged in research (theoretical and practical) and fishing trials, aimed at improving gear selectivity and reducing the impacts of fishing operations on the ecosystem. In some cases research innovations aimed at solving selectivity problems can underpin and drive new technical measures subsequently introduced into legislation. However as noted earlier, it can be the case that research developments evolve at a pace that is faster than the legislative processes needed to enact the benefits of the research and technological innovations that results, rendering such developments less meaningful. In a number of evaluations of the impacts of different technical measures, researchers have highlighted problems, which have then failed to be acted upon.

Two other key groups of stakeholders are affected by the problems surrounding the technical measures regulations at the current time.

The fisheries authorities and institutions in third countries who have shared fishing interests with the EU and co-manage fisheries and their impacts on the environment through bilateral agreements or under RFMOs agreements and other international conventions (i.e. OSPAR). The authorities in Norway, Iceland, and Faeroes are perhaps most affected (however authorities of third countries in which the EU long-distance fleet operates are also affected). These authorities have an interest in

45 A microenterprise is defined as an enterprise which employs fewer than 10 persons and whose annual turnover and/or annual balance sheet total does not exceed EUR 2 million (Commission Recommendation 2003/361/EC).


ensuring that EU technical measures are effective in protecting shared stocks and mitigating impacts on the environment.

One can also consider civil society concerned with environmental sustainability as being indirectly affected by the problems associated with technical measures, in that their objectives of environmental sustainability and conservation may not be supported by the implementation of environmentally friendly fishing practices that minimise impacts of fishing on the broader environment and promote selective fishing practices to avoid waste of resources. Environmental NGOs operating at national, regional or international levels are particularly important stakeholders within the civil society community. The sometimes ad hoc, non-transparent and non-participatory mechanisms used to define and enact technical measures, also poses problems for this group of stakeholders in trying to actively influence the debate surrounding technical measures and their efficacy.

Finally, the consumers looking for fisheries products caught sustainably form also a group of stakeholders concerned by the reform of the technical measures regulations. Recreational fishermen (i.e. anglers) can also be concerned by a reform of technical measures regulations principally by the effects on the sustainability of stocks they target.


Table 3: Summary of stakeholders affected by the reform of the technical measures regulation and of their respective key interests

Stakeholder Description Key interests

EU fishing industry and its representation

Owners and crews of fishing vessels exploiting marine living resources in the North Sea and the North East Atlantic Upstream and downstream related businesses

Maintaining profitability and employment from sustainable exploitation of fisheries resources Level playing field across the different fleets exploiting same resources Involvement in decision-making

Member States authorities

Competent authorities in the Member States in charge of implementing and controlling compliance with the technical measures regulations

Ensuring an efficient, effective and practical technical measures management framework that balances a wide range of stakeholder needs Representing the interests of their nationals, while controlling fishing activity of those nationals, and of other MS nationals in waters under their jurisdiction

Member State research institutions

Fisheries sector research institutions involved in research on the ex post and ex ante impacts of technical measures

Ensuring technology transfer from research to industry application, and evaluation of the impacts of research-led innovations transposed into regulations

Third countries authorities

Coastal States having shared fishing interests with the EU and co-managing fisheries and the impact of fishing on the environment through bilateral agreements or under the multilateral context of RFMOs and other international conventions (i.e. OSPAR, CBD)

Ensuring EU technical measures are effective in protecting shared stocks and mitigating impacts on the environment

Civil Society

Civil society represented through NGOs specialising in the protection of the marine environment, including the. sustainability of EU fisheries

Implementation of environmentally friendly fishing practices that minimize impacts of fishing on the broader environment and promote selective fishing practices to avoid waste of resources

Consumers Buyers of fisheries products on the internal EU market

Ensure that fisheries products are caught sustainably and available at good prices on the internal market

Recreational fishermen Individuals engaged in recreational fishing

Sensible technical measures to protect stocks they are targeting

2.4 How would the problem evolve, all things being equal?

If no action is taken by the EU, it is likely that the current levels of unwanted catches will continue in many fisheries and there will be little or no progress in reducing the impacts of fishing on the ecosystem.

The impacts of catches of unwanted species can be separated into two related issues:

• The loss of potential income and human food source: reduction in income through reduced or impaired recruitment of juvenile fish into a stock. For example, the direct loss of potential income through the discarding of commercial species in the North Sea has been calculated


for the Dutch beam trawl fishery at 70 % of the total value of the annual landings and for the UK demersal fishery at 42 % of the annual landings (Cappell, 2001). The extensive discarding of commercial species in the North Sea and North East Atlantic results in substantial forgone potential yield, and for depleted stocks, discards are considered by ICES as a serious impediment to the rebuilding of depleted stocks (e.g. Cod in the Irish Sea, West of Scotland and the Kattegat).

• The ecological impacts of discarding on the ecosystem: in the North Sea and in the North East Atlantic, fishing mortality through discarding has been shown to reduce species diversity, change predator–prey interactions, change the relative abundance of species, or support growth of several scavenger species (incl. certain species of seabirds) (Catchpole et al., 2005).

The impacts on the ecosystem can be separated into the following:

• Concerning ecosystems protection required under the Habitat and Birds Directives, the main tool for regulating interactions with fishing activities will be the implementation of a coherent network of Marine Protected Areas throughout EU waters. The current technical measures regulatory framework could support the process until now in particular in offshore waters (i.e. outside the 12 miles limit) by closing access to areas containing vulnerable marine ecosystems to fishing vessels using fishing gears that are likely to interact with the sea bed, although with some apparent difficulties to keep pace with updated scientific advices on the protection of new areas or modifications of limits of existing regulated areas. In territorial waters, empowerments given to Member States to adopt specific technical measures could also support adequately the development of a coastal network of MPAs.

• To meet the ‘Aichi’ targets46 agreed by the EU and other parties under the Convention on Biological Diversity of 10% of coastal and marine areas conserved through networks of MPAs and other effective area-based conservation measures, new MPAs will have to be designated in EU waters. According to data held by the European Environmental Agency, 32.1 % of EU marine waters within less than 1 mile from the coast are covered by an MPA, 16.4 % of EU marine waters between 1 and 12 miles from the coast, but only 2.3 % of EU waters beyond the 12 miles limit (offshore areas). This needs to be expanded. The process has already started with designation by Member States of offshore MPAs in the North Sea or other parts of the North East Atlantic. The regulation of fishing activities in these MPAs, that will not be necessarily no-take zone, may require a CFP instrument regulating the activities of all fishing vessels at the geographical scale of the MPA, including technical measures (Fock, 2011).

• Mitigation of interactions with protected species currently is restricted to the protection of cetaceans through Reg (EC) No. 812/2004 and with several specific closed areas (e.g. sandeel closure to protect breeding kittiwakes). The ex-post evaluation of the technical measures framework indicated that this particular regulation could be better adapted to include the majority of vessels that may be impacting cetacean populations and be extended to cover other protected species including pinnipeds, marine turtles or seabirds as and when required while for other species there were only very limited measures in place leaving many sensitive species with no protection from the impacts of fishing.

The ex-post evaluation of the technical measures framework has concluded that the full potential of technical measures to mitigate the impacts of fishing on the wider environment has not been fully achieved, i.e. technical measures are ineffective. The main shortcoming of the current framework is that it lacks flexibility, proportionality and contains numerous, often politically motivated derogations making addressing problems that evolve over time and between regions difficult to address expediently.

46 Convention on Biological Diversity. COP 10 Decision X/2 on Strategic Plan for Biodiversity 2011-2020


3 Does the EU have the right to act?

The EU’s right to act in the field of technical measures regulations is justified in terms of the principal of conferral through the linkage between such regulations and a number objectives of the Treaties of the EU, such as: sustainable development; and a competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. Importantly in this context is the EU’s right to act, according to Article 3(1d) of the TFEU, the Union has exclusive competence in the conservation of marine biological resources under the CFP. Article 4(2d) of the TFEU stipulates that the Union has shared competences for the other components of the CFP. Because technical measures relate to the conservation of marine biological resources under the CFP (i.e. the Union has exclusive competence) there is no need therefore necessarily to justify measures with regards to the principles of subsidiarity and proportionality.

Article 35 of the Basic Regulation (Council Regulation (EC) No. 2371/2002) contained a specific provision for a review by 2012 with respect to Chapters II [Conservation and sustainability] and III [Adjustment of Fishing Capacity] before the end of 2012. The conclusion of the Court of Auditors47 as well as an internal assessment of the current CFP led the Commission to propose a ‘whole-scale and fundamental reform of the CFP’48. Symptomatic of many of failings of the current management framework identified in the Green Paper are the technical measures regulations currently in force, which are regarded as being too complex and difficult to understand, control and enforce. In the context of CFP reform therefore, and the Union’s exclusive competence in the conservation of marine biological resources under the CFP, the EU has the right to act in terms of reform of the technical measures in place. Technical measures which define where, when and how a fishing vessel can interact with the broader marine environment, might also be required to support Member States initiatives in relation with compliance with EU environmental legislation (Habitat and Birds Directives, Marine Strategy Framework Directive), in particular in offshore waters (i.e. beyond the 12 miles limit) and beyond.

4 What are the policy objectives?

In line with the reform of the CFP, the general objectives of technical measures are:

• To support the objectives of the reformed CFP, in particular its objectives to bring all European fish stocks to a state where they can produce the Maximum Sustainable Yield (MSY) by 2015 or 2020 at the latest, and to reduce unwanted catches and eliminate discards in fisheries subject to catch limits by 2019 through the introduction of the landing obligation.

• To support the objectives and targets for Good Environmental Status achieved by 2020, as established under the Marine Strategy Framework Directive, and other environmental legislation such as the Habitats and Birds Directives.

Technical measures have also the potential to contribute to the Europe 2020 strategy, in particular its resource efficiency flagship initiative through better use of fish stocks. In addition, the reform of technical measures may contribute to the Commission’s simplification rolling programme. Technical measures regulations had been identified as a fundamental test case of simplification in the Commission Action plan 2006-2008.

The following section specifies the objectives which are directly related to solving the problems identified in section 2.1 whilst contributing to the general objectives presented above.

47 European Court of Auditors' Special Report No.7/2007, on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies [OJ C317/1 of 28.12.2007].

48 Green paper on the reform of the Common Fisheries Policy. Page 4


Table 4 : Problems and specific objectives

Problem Specific objective for the reform of the technical measures regulations

Lack of flexibility Technical measures cannot be adapted to changing conditions or requirements in a timely and proportionate manner. In their current form, they are out of line with regionalisation as envisaged under the new CFP.

Provide for a more flexible legal framework for adopting technical measures that allows for regionalisation to develop measures tailored to specific fisheries.

Prescriptive nature

The technical measures regulations have become overly prescriptive and detailed.

Move from a prescriptive approach to a result-based management approach by setting objectives in relation with the outputs of technical measures (e.g. exploitation patterns of stocks) rather than on the technical design characteristics of the measures.

The prescriptive nature of technical measures regulations imposes a high burden on the control authorities of Member States compared to the benefits in terms of sustainability achieved. They also do not provide an incentive for compliance for fishermen.

Simplify and streamline the technical measures regulations and verify controllability when designing the measures.

Insufficient involvement of fishermen in the decision making process

The decision making process is not fully transparent and does not take into account stakeholder input.

Ensure that a transparent and participatory approach is taken to the definition and specification of technical measures before they are introduced.

Poorly defined objectives and success criteria

The expected benefits of technical measures in terms of reduction of unwanted catches and lowering the impacts of fishing on the ecosystem have not been realised in practice. From a political perspective, technical measures often part of a negotiation strategy, potentially leading to dilution of the final measures agreed or measures introduced without any scientific basis.


Re-structure the regulations to allow for discussions of detailed measures to be focused at regional level.


5 Policy options

Five policy options including the baseline situation are considered as follows.


This option is the baseline scenario following adoption of the new CFP. It assumes that there is no change in the governance of technical measures (i.e. they remain under co-decided legislation) and while possible, regionalisation of technical measures under multiannual plans does not occur in the short to medium term.

However, in defining the baseline scenario, a limited number of actions are assumed, already in place or under negotiation (see section 1.2.2).

The first action is alignment and synchronisation of the technical conservation measures with the landing obligation and other obligations under the new CFP through the omnibus regulation. In particular, the main technical measures regulation (Council Reg (EC) 850/98) that oblige fishermen to discard at sea under certain circumstances is proposed to be amended by requiring all unintended catches (defined as incidental catches the fishing for which is prohibited in the relevant conditions) subject to the landing obligation caught in excess of legal provisions (catch composition rules, bycatch provisions) to be landed and counted against quota. The full alignment also required definition of Minimum Conservation Reference Sizes (MCRS) to replace the current Minimum Landing Sizes, and that all catches below the MCRS subject to the landing obligation be landed and counted against quota49.

The second action is alignment with the Treaty 50 concerning establishment of current Commission empowerments under delegated or implementing Acts although this is still under negotiation.

Whereas at first sight this option seems to represent a minimal change compared to the current situation as the substance of technical measures in force will remain essentially the same, there is a limited re-casting of the measures to align with the CFP.

No further substantial changes (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen. The existing regulatory framework would remain under co-decision procedure (with the exception of the possibility for delegated or implementing Acts already included in the Regulations). Any future amendments to the Regulation would be agreed in the ordinary legislative procedure or through amendment to the relevant Commission regulations.

The baseline envisages only minor change in substance and no change in the governance of technical measures.

Option 2: Consolidation and simplification of technical measures rules

In addition to the consolidation as described under the baseline scenario under option 1 (slow move towards regionalisation and no or limited incorporation of technical measures into multiannual plans), this option foresees a level of simplification of the current technical measures rules. Essentially this option provides for a re-casting of the current regulations with no change in substance and with an assumption that regionalisation will be a slow process.

This would consist of firstly of a ‘cleaning up’ of Council Regulation (EC) No. 850/98 and other technical measures through the deletion of redundant articles and measures, recuperate full internal

49 Known as the ‘Omnibus’ Regulation and subject of COM (2013) 889 50 Adaptation proposed in COM (2012) 432


consistency of the different legal instruments, and incorporation of recent amendments and changes (e.g. measures introduced in the Celtic Sea early in 2013).

Secondly, under this option the whole spectrum of existing Regulations would be consolidated in one single Regulation (in as far as legally possible), eliminating a series of partial Regulations or legal provisions on technical measures in other Regulations. This would include integration of existing measures to protect by-catch species such as marine mammals, reptiles and seabirds and EU acquis for the protection of vulnerable marine ecosystems into one central Regulation.

No further substantial changes (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen under this option. As with the baseline situation (option 1), the regulation would remain under co-decision procedure (with the exception of the delegated or implementing Acts which may be developed under the Regulation). Any future amendments to the Regulation would be agreed under the ordinary legislative procedure.

This option represents limited changes to the substance (mainly simplification) but with no change in the governance.


This option presents both a change in the governance structure to allow for adequate (and faster) adaptation of the rules to new requirements and conditions, on a regionally specific basis as well as the elements of simplification included under option 2. It still assumes that regionalisation of technical measures under multiannual plans will be a relatively slow process, but accepts that there is a need for rules that are tailored to the specificities of fisheries at the regional level and also introduces flexibility mechanisms to provide a mean to react to changes in fisheries in an expedient manner.

In addition to the alignment and re-casting foreseen under the baseline situation and option 2, the technical measures would be divided into two parts: a) a set of common rules and measures applicable to all fishermen in the corresponding Union waters and EU vessels operating in non-EU waters under a co-decision regulation. This includes rules agreed with third countries and for outermost regions and b) the creation of separate Commission Acts (delegated and/or implementing Acts) containing existing regionally specific rules.

No further substantial changes to the measures themselves (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen under this option. Adaptation of common rules would remain under co-decision procedure, but the importance of (responsive) adaptability is enhanced by creating separate Commission Acts containing regional rules allowing for quicker amendment.

As with the baseline situation and option 2 there would be no changes in the linkages between technical measures and the environmental Directives other than the mechanisms introduced by the new CFP. The only difference would be that regionally specific ecosystem protection measures could be included in Commission Acts making amendment potentially easier.

Under this option the Commission Acts, rather than the multiannual plans, will be the main tool for regionalisation of technical measures, i.e. regionalisation is very much Commission-led. It would represent a substantive change in governance but little or no change in the substance of the current rules.


This option responds to the new decentralised governance option under the new CFP and directly supports the development of multiannual plans containing regionally specific technical measures. In this regard the new technical measures framework would act as a direct vehicle for regionalisation. It


would respond both in its legal architecture and in the substance to the needs of the new, regionalised governance.

A framework Regulation would be adopted under the ordinary legislative procedure. This Regulation would be considerably slimmed down compared to the current Regulations, through deletion of redundant or unnecessary provisions and repealing of whole or parts of regulations containing technical measures and thus achieving a high level of simplification. It would contain a limited set of measures, rules, standards and requirements – mainly those which would not be expected to change over time and which are common to all sea basins (e.g. definitions, prohibited gears or fishing methods, conservation reference sizes) as well as rules agreed with third countries and for outermost regions if necessary. Relevant permanent ecosystem measures considered to be a permanent nature would also be part of the framework Regulation (e.g. closed areas to protect vulnerable marine ecosystems). It would also include some basic standards such as reference gears, selectivity baselines, or targets (in terms of level of allowable unwanted catches) to replace the existing current complex mesh size and catch composition rules.

Besides these common rules, the Regulation would provide for the legal architecture for regionalisation as envisaged under the new CFP, primarily through multiannual plans. It would introduce the possibility for derogations from the general technical measures regulations combined with introduction of an empowerment for implementing/delegated Acts on these Articles under regionalization through multiannual plans. In this regard Member States in consultation with the Advisory Councils concerned can develop joint recommendations for technical measures that can be included into multiannual plans as a Commission Act. A similar empowerment for implementing/delegated Acts for adoption of additional measures for environmental measures could also be included.

Under this option, regionalisation would progressively lead to agreement on technical measures at regional level and included in Commission Acts emanating from the multiannual plans, which could be results-based rather than prescriptive legislation. However, this option still assumes that regionalisation and development of multiannual plans will take some time, and during the transitional phase, in this option the technical measures framework Regulation should act as a temporary storage facility for existing technical measures (such as the seasonal/temporal closed areas), which are still needed. These would be placed in a set of regional annexes as part of the framework regulation. Ultimately these should be taken out of the framework regulation and incorporated into the multiannual plans so that over time, the number of measures in the framework regulation would diminish as regionalised multi-annual plans come into force.

This option represents a substantive change in the governance that reflects regionalisation envisaged under the new CFP and also a change to the substance of the current measures through the replacement of complex mesh size and catch composition rules as well as simplification and consolidation of existing measures into one framework.


This option moves the implementation of technical measures almost completely to regionalisation. There may be a need to maintain some measures relating to protection of vulnerable marine ecosystems and rules agreed with third-countries (and possibly outermost regions) under co-decided acts.

This option assumes a speedy development of regionalised, tailor-made multiannual management plans under the new CFP and allows for MS and stakeholders to choose between having prescriptive rules at a regional level or moving towards a results based management approach where the outputs (e.g. exploitation patterns of stocks) rather than the inputs (e.g. technical prescriptions on fishing activities) are managed and the need for detailed rules is greatly diminished.


Under this option the need for a co-decided a framework for technical measures even in a minimised form is removed. All technical measures, including ecosystem protection measures would ultimately be internalised into the plans – which are expected to cover all fisheries in the corresponding waters. The MS and the stakeholders would be left to develop the measures needed to achieve the objectives of the plan and implement these through a Commission delegated/implementing act. The amount of detailed rules required will be depend largely on the fisheries involved and also the ability of the fishing industry and the MS collectively to demonstrate that the objectives of the plans are being achieved. This approach leaves the responsibility at the regional level to decide when additional or more stringent measures are needed.

In this option the logical (and simplest) solution is to maintain the existing technical measures as amended in the baseline scenario but repeal them as plans are adopted. There would therefore be no need for a proposal for a Regulation adopted under the ordinary legislative procedure under this option – technical measures would be either directly included in multiannual plans (under the ordinary legislative procedure), and/or adopted by the Commission under regionalisation. This would require an empowerment to be included in the multiannual plans for implementing/delegated Acts to derogate from the relevant Articles in the existing regulations similar to option 4.

As a safeguard the Commission would maintain its right to act if the regional measures fail to meet the overarching objectives of the CFP and the respective multiannual plans.

This option represents a substantive change in governance and introduces the possibility of eliminating virtually all prescriptive rules on technical measures. It increases the responsibility on MS and stakeholders and assumes they will embrace regionalisation very quickly.

The conceptual shift in governance arrangements and the range of technical measures in place, moving from the baseline situation (option 1) through to option 5, is presented in the figure below.


6 Analysis of impacts

6.1 Methodological remarks

The following sections present an analysis of the potential impacts of the different policy options presented above. In all instances, potential impacts are presented in comparison to the baseline situation described in option 1. The baseline situation in option 1 assumes the new governance structure and potential for regionalisation provided for under the CFP reform, alignment with the Treaty (establishment of Commission empowerments under delegated or implementing Acts), and alignment and synchronisation of the technical conservation measures with the landing obligation (the ‘omnibus’ regulation).

Also of considerable importance by way of introduction to this section is some comment about the fundamental difficulty in providing a quantitative assessment of impacts. This stems from two main causes, and results in the need to present a largely qualitative analysis in this evaluation.

The first issue is that the options presented have different governance structures for the specification and implementation of technical measures and the legal architecture that would be in place, rather than a specification of technical measures that might be expected under the options. The main challenges in relation to the existing technical measures were the object of intensive consultations in the preparation of the package of reform of the CFP and also during the unsuccessfully attempt to revise the technical measures carried out in 2008. There is no reason to re-examine these challenges in any detail here.


Option 2: No use of regionalisation, consolidation and simplification of

existing technical measures regulations

Option 3: No change in existing technical measures but splitting

between common and regionalised measures

Option 4: Extensive of use of regionalisation, simplified and minimal framework regulation, reduced technical measures

Option 5: No technical measures in framework regulation (objective

based management)

Importance and level of details of technical

measures in Council / European Parliament Regulations

Change from the status quo

and move towards

increased regionalisation


Crucially, it cannot be known in advance how the different governance options, and the possibilities they provide for specification of different technical measures, might actually translate under the different options into changes in the detailed content of technical measures compared to the baseline situation. As it is impossible to determine in advance the exact content of the technical measures that might result from these different options, their respective impacts cannot therefore be assessed in quantitative terms. Rather, the analysis is limited in its ability to describing the potential expected direction of change (i.e. will things get worse, stay the same, or get better under the different options) in terms of key evaluation questions (e.g. acceptability, effectiveness), and criteria (e.g. on economic, social, environmental and administrative costs and burden).

The second issue is that it is impossible to distinguish/isolate the impacts of technical measures from other CFP conservation measures that will be in place in the future, and in particular from the impacts of the move to the MSY conservation objective (Article 2(2) of the new CFP). For example, there is no way to determine or disentangle whether, and to what extent, how a specific technical measure such as a closed area or a minimum mesh size would impact on a particular stock, compared to an output type measure such as quota management, which may also be in place for the same stock. This difficulty in isolating the impacts of technical measures as compared to other management measures means in turn that a quantitative assessment of environmental impacts and related indicators such as stock status, a monetization of economic impacts, and a numerical assessment of social impacts in terms of jobs, is not possible.

For these reasons, assessment of the likely risks of the different options is of paramount importance. A specific section in this evaluation therefore considers the potential risks associated with the different options, and the extent to which the impacts as described (in qualitative terms) might or might not actually come about under the different options.

6.2 Economic impacts

In contributing to the attainment to the main objectives of the CFP (i.e. Achieving MSY, elimination of unwanted catches and implementing an ecosystem-based approach), technical measures will have an important role but this will result in direct economic impacts regardless of the policy direction taken.

Economic impacts in relation with the landing obligation

According to MS and stakeholders met during this evaluation study, there are many uncertainties over the actual impacts of the landing obligation. What does seem clear however is that it can be assumed from current evidence that if the reform of the technical measures framework is not effective, fishing vessels will not have the tools or flexibility to adapt their fishing practices to minimise unwanted catches, resulting in less fishing opportunities and a corresponding decrease in income to themselves, and also by implication in upstream and downstream sectors.

Therefore, the avoidance of unwanted fish species though increased selective fishing practices will be critical especially for fishing fleets participating in mixed fisheries. As a result, fishing vessels will have to operate more selectively to avoid catches of undersized fish for which the economic returns are lower and also avoid species for which their catching possibilities are limited. Before the implementation of the landing obligation, fishermen could deal with unwanted catches by simply discarding fish at sea at no cost. Under the new conditions, all species subject to the landing obligation will have to be retained onboard and landings discounted against the quotas. Thus if fishing vessels do not improve the selectivity of their fishing gears, fishing opportunities are very likely to be exhausted earlier in the year and revenues will be reduced as part of this catch will be unwanted catches of a low economic value. Exhausted fishing opportunities will force vessels to stop fishing with related negative impacts on their financial performance, and on the wider economy through


reduced upstream and relationships with other enterprises providing inputs to fishing, and processing, marketing and trading catch (see Table 2 above).

ICES (2013c) provided an updated advice for the mixed-fishery situation in the North Sea. Scenario results for 2014 show that it is not possible to achieve all management objectives simultaneously for all species. For instance, if rebuilding of the cod stock is the major objective and assuming fleets targeting cod and other species simultaneously stop fishing as soon as cod quotas are exhausted, then the TAC for other species in the mixed fisheries cannot be fully utilised.

In other areas, the same issues are likely to arise. For example, in the Irish Sea, recent work by Cappell and MacFadyen (2013) suggests that the whiting fishing opportunities available to Northern Ireland Nephrops trawlers would be exhausted after only 10 days at sea before all quota of that species is caught,, all other things being equal 51 if steps to improve selectivity or avoidance measures) are not taken.

In a recent study, Condie et al. (2013) estimate that Nephrops trawlers would have to reduce the annual number of trips undertaken by 52% compared to 2008–2010 if unwanted catches of cod were not avoided, leading to a 38% reduction in income. If unwanted catches of cod could be avoided, the reduction of the number of trips would be lower, and income increased by 2%. This fleet segment is estimated to currently discard ≈ 76% of its cod catches. For smaller Nephrops trawlers, avoiding the 86% of cod catches that were unmarketable would have allowed these vessels to increase their annual number of trips by 65% above that achieved under a scenario where fishers continue to catch both marketable and unmarketable catch. This would increase income by 78%. The results obtained by Condie et al. (2013) suggests that failing to improve the selectivity of fishing practices under the landing obligation will lead to substantial decrease in the number of trips (typically between -30% and -50%) and to a corresponding decrease of income (between -15% and -30%) compared to the 2008-2010 situation.

The CFP reform has anticipated these potential problems with mixed fisheries and has introduced a number of provisions within Article 15 to help implementation in combination with improvements in selectivity and avoidance. These include possible de minimis exemptions (Art. 15 § 5c) to the landing obligation in certain circumstances and quota flexibility mechanisms through inter annual and inter species quota flexibility (Art. 15 § 8 and 15 § 9) to adjust catch quotas. In addition, the industry and/or the Member States will be able to adjust further their fishing opportunities through private mechanisms (quota lease or other transferability instruments when they exist) or quota swaps with other Member States.

It can be assumed from current evidence that if the reform of the technical measures framework does not support increased effectiveness of technical rules, fishing vessels will not have the tools to adapt their fishing practices to minimise unwanted catches, resulting in less fishing opportunities either in the short or longer terms and a corresponding decrease in income to themselves, and therefore also by implication in upstream and downstream sectors. It is not possible to anticipate how variations in income or in operating costs (e.g. quota lease) will impact profitability or competitiveness at this stage. The following table shows that the net profits and the net profit margins of fleet segments operating on mixed demersal fisheries in the North Sea and North East Atlantic vary between fleet segments. The segments which are currently the less profitable (e.g. Netherlands beam trawl, Irish and Spanish demersal trawls and seines) may suffer the most from a loss of income or increase in operating costs, while profitable segments (i.e. United Kingdom demersal trawls and seine) may remain profitable.

51 Without de minimis or a ‘flexibility’ allowance enabling up to 9% of target quota to be used for unwanted catch


Table 5 : Profitability indicators of some selected fleet segments operating on mixed fisheries in the North East Atlantic and in the North Sea. Source: STECF (2013a)

NLD FRA FRA IRL IRL ESP GBR GBR

TTB1824 DTS1218 DTS1824 DTS1218 DTS1824 DTS2440 DTS1218 DTS1824Number of vessels 170 182 155 69 64 202 235 194

Net profit (KEUR) -3 988 3 736 4 450 522 -523 -24 334 9 304 15 725

Net profit margin (%) -11 4.1 3.1 4.8 -1.1 -10.9 15.3 13.3

Profitability** Weak Reasonable Reasonable Reasonable Weak Weak High High

* TTB : beam trawl; DTS : demersal trawls and seines. 1218 /1824 / 2440 denotes the length class of the segments (ex: 1218 : between 18 and 24 m) ** : as per STECF classification

The reform of the technical measures framework under option 2 detailed in section 5 maintains the prescriptive top-down approach as under the baseline scenario with no change to the governance structure. Under this option, changes in technical measures to reduce unwanted catches are likely to be difficult given the lengthy decision-making process required to amend the regulations. There are several options to alleviate this but all of these have their limitations as described:

• Fishermen can voluntarily choose to use gears that are more stringent than the current measures (i.e. use a larger mesh sizes than required). However, in many mixed fisheries this is simply not an option. For example increasing the mesh size used in the Nephrops fishery to reduce catches of whiting would lead to significant losses of catches of Nephrops rendering the fishery uneconomic.

• As has been seen in the past (see example of the Irish Sea presented page 23) the industry's ability to adapt gears to improve selectivity and avoid unwanted catches to react to specific problems may be stifled because such gears may contravene Union legislation. Therefore the opportunities for industry to improve the selectivity of fishing practices is restricted with the result that economic losses can be expected as a result of shortened fishing opportunities.

• Under the CFP, Member States can adopt their own national measures, but this may be problematic and they are not likely to do so if vessels from other Member States exploiting the same fisheries do not adopt the same unilateral measures putting the fishermen from the Member State applying the measures potentially at an economic disadvantage.

• Fishermen can diversify into other fisheries providing they can acquire quota to cover catches in these fisheries. However, this may be costly in terms of costs for leasing or purchasing quota and rely on such quota being available in the first place.

In summary under this option the lack of flexibility and ability to adapt regulations expediently will almost certainly lead to negative economic impacts in terms of losses of catches, a reduction in operation time or increased operating costs.

Under reform option 3, the situation would be improved compared to the baseline scenario even though this option does not foresee any changes in the substance of the existing technical measures. It still follows a top-down logic with prescriptive rules either horizontally or at the regional level and the issues and limitations of the solutions outlined for option 2 still apply. Nonetheless the splitting of regionally specific rules into Commission delegated/implementing acts provides significant flexibility in the decision making process. While this enhanced flexibility will not necessarily remove all the economic impacts of introducing the landing obligation it at least provides legislators to react quickly to changes in fisheries and/or stocks much more quickly. However, the actual economic impact of option 3 will depend to a large extent on what are considered as common measures and regional


measures, and the speed of the Commission to react from requests from the Member States and/or Advisory Councils to adapt measures through the Commission acts.

Under options 4 and 5 the situation is likely to be further improved compared to the baseline scenario in the medium to long term depending on how quickly multiannual plans can be developed under regionalisation. Under both these options, there is likely to be a negative economic impact on fishermen in the short-term as many of the current rules will still be in place until new measures are developed under regionalisation. However, it is assumed that the added flexibility to identify the most suitable gears and fishing strategy that would contribute to minimising unwanted and negating any negative economic impacts of the landing obligation from reduced revenues or reduced operation time. Over time it is predicted that these options will actual yield economic benefits as fishermen maximize returns from catches by reducing catches of small, less valuable fish.

Economic impacts in relation to the MSY objective

STECF (2013b) underlined that, in the context of technical measures and their influence on the exploitation pattern and impact on Fmsy estimates, including exploitation pattern as a ‘yield-multiplier’ would have the benefit of directly linking fishing opportunities with the selectivity of the fleets exploiting that stock thereby offering quantifiable advantages of improving exploitation patterns. Technical measures through adjustments in gear selectivity, and measures that set spatial and temporal controls, can contribute significantly to changes in exploitation patterns and therefore changes in the potential yield that can be removed from a stock due to changes in Fmsy exploitation rates.

Various studies have shown that changes in selection can produce substantial differences in MSY and Fmsy, e.g. Froese et al. (2008), Scott and Sampson (2011) and STECF (2013b). In summary, it is demonstrated that a change in the exploitation pattern limiting catches of juvenile fish species modifies the target fishing mortality Fmsy. More selective fishing practices correspond to a higher Fmsy target. In the case of overexploited stocks, improving the exploitation pattern would have the potential to set target Fmsy value closer to current fishing mortality, and therefore support the transition period toward the MSY objective.

The impact of improving the exploitation patterns of certain fish stocks exploited by French fleets has been evaluated in details by Henichart et al. (2011) on some stocks. For each of the studied stocks, the Fmsy is evaluated under three assumptions: (i) status quo (no change in current selectivity), (ii) catches of individuals aged 2 and less not fished and (iii) catches of individuals aged 3 and less not fished. Results are shown in the table below.

Table 6 : Quantifiable impacts of exploitation pattern on long-term MSY objective compared to current exploitation pattern. Source : Henichart et al. (2011)

Fishing mortality (relative to current F)

Catches Spawning Stock Biomass

Status quo

Age 2 not fished

Age 3 not fished

Status quo

Age 2 not fished

Age 3 not fished

Status quo

Age 2 not fished

Age 3 not fished

Northen Hake

0% 11% 45% 0% 7% 25% 0% 2% 6%

Sole VIIe -7% 3% 45% 0% 2% 6% 8% 4% -1% Sole VIIIa,b

-19% -7% 30% 1% 4% 10% 18% 22% 35%

Nephrops VIIIa,b

-44% -19% 101% 11% 33% 64% 88% 64% 28%

Cod VIIe-k -45% -41% 8% 10% 14% 46% 143% 135% 106% Plaice VIIe -62% -60% -50% 71% 76% 89% 336% 347% 369% Plaice VIIf,g

-64% -62% -56% 109% 112% 122% 437% 436% 462%


The results show that stocks responses to a change in selectivity vary. For the Northern hake stock, the sole VIIe stock, the sole VIIIa,b stock and the Nephrops VIIIa,b stock, a change in the exploitation pattern with better selectivity increase significantly Fmsy. For overexploited fisheries, the difference between current fishing mortality and Fmsy is reduced (example of Nephrops: from 44% to 19% reduction in current fishing mortality to reach the MSY objective). This change in Fmsy also translates into a substantial increase of catches. Some stocks react very positively to a decrease of fishing pressure on individuals aged 2 and less, i.e. sole VIIIa,b stock while other stocks like cod VIIe-k show improvements if individuals aged 3 and less are not caught. However, for other stocks, i.e. plaice VIIe or plaice VIIf,g, selectivity improvements have little influence on target Fmsy, probably because the current exploitation pattern is already close to the optimum exploitation patterns.

Option 2 for the reform of technical measures regulations would have similar impacts as under the baseline scenario (option 1). Both options 1 and 2 would result in lower economic impacts than were expected in the impact assessment of the CFP reform52, mainly because no adjustments to selectivity or additional avoidance measures will contribute to lower the level of catches corresponding to fishing mortality at MSY.

Option 3 will perform better than the baseline scenario (option 1) if technical measures can be adapted through the new governance system.

Full use of regionalisation for the design of technical measures under option 4 is likely to contribute to an increase in the economic benefits in the long term compared the baseline situation through improvements in the exploitation pattern of stocks.

Expected economic impacts of option 5 are more difficult to identify; if Member States meet the objectives set out in the multiannual plans, through technical measures and other output measures, economic impacts will be positive.

However, under options 4 and 5, in the event Member States, collectively or individually, fail to meet the MSY objective because of ineffective technical measures, this may require potentially dramatic downward adjustments of fishing opportunities to compensate.

The direct cost of selective fishing gears for fishing enterprises

Improving the selectivity of fishing gears by adding specific devices into existing gears is not necessarily expensive. Evidences from Raveau et al. (2012), validated by interviews of net manufacturers, indicate that the direct cost of modifying the gears of trawlers of 12-16 m is generally less than EUR 1 000 (for example, EUR 600 for installing T90 net panels in an existing fishing gear, EUR 900 for a combination of a square mesh cylinder with a grid and 2 square mesh panels). Discussions with the industry suggest that the average costs for larger vessels may be higher, between EUR 2 000 and EUR 3 000, depending on the solution retained. Modifications of nets by adding square mesh panels or sorting grids into existing gears remains in the region of EUR 1 000, while the costs for adopting sophisticated gears like the eliminator trawl may be substantially higher (EUR 10 000) as all the gear has to be changed.

Considering a conservative average estimate of a one-off payment of EUR 3 000 per vessel for purchasing and rigging into the trawl additional selectivity devices, the total cost borne by shipowners with vessels fishing in the North East Atlantic and in the North Sea would be in the region of EUR 16.4 million, if only vessels operating active gears, the most in need of selectivity improvements, are considered. This represents approx. 0.9 % of the annual value of their landings. Costs of improving selectivity of fishing practices will be partly supported by public funding through the forthcoming EMFF (Art. 37 of latest compromise on EMFF53). Direct costs for businesses can therefore be assumed to

52 COM (2011) 47 53 Council of the European Union, document 15458/1/12 dated 22 July 2013


be negligible compared to the amounts to be disbursed and the long-term benefits of improved selectivity. This means that direct costs borne by the industry under any of the options for adapting fishing gears to comply with technical measures will not be significantly higher than under the baseline scenario.

Table 7: Estimate of direct cost of purchasing and rigging selectivity devices into existing gears. Baseline : EUR 3000 per vessel. ‘Need ?’ column reflect the need of fleet segments to improve their current selectivity performances. Source : DCF data (STECF) for number of vessels and value of landings in 2010 for the supra region Baltic Sea, North Sea, Eastern Arctic, North East Atlantic.

Gear Number of vessels Need ? Cost of selectivity (EUR Million)

Landing value(EUR Million)

Beam trawlers 739 Y 2.2 377.5 Demersal trawlers and/or demersal seiners 2 792 Y 8.4 1 297.3 Dredgers 1 109 N 0.0 140.5 Drift and/or fixed netters 2 637 N 0.0 217.7 Inactive 2 177 N 0.0 346.9 Pelagic trawlers 449 N 0.0 243.7 Purse seiners 290 N 0.0 5.5 Vessel using other active gears 162 Y 0.5 85.1 Vessels using active and passive gears 1 627 Y 4.9 86.4 Vessels using hooks 1 250 N 0.0 1.4 Vessels using other passive gears 119 N 0.0 38.4 Vessels using passive gears only for vessels < 12m 4 841 N 0.0 35.9 Vessels using polyvalent active gears only 144 Y 0.4 72.1 Vessels using polyvalent passive gears only 3 571 N 0.0 181.8 Vessels using pots and/or traps 3 655 N 0.0 377.5 TOTAL (need = Y) 16.4 1 801.3

Under the assumption that all fleet segments operating in the North East Atlantic and the North Sea would have to invest in additional selectivity devices to avoid unwanted catches and minimize impacts on the environment, i.e. including also the fleet operating passive gears like nets, hooks or pots, the costs borne by the industry would be in the region of EUR 70.2 million, equivalent to 2.2% of the annual value of the landings of the fleet. Compared to the expected benefits of increased selectivity on catches in the long-term, the direct costs of selective equipment for the industry appear to be relatively negligible.

It can be expected that the fishing industry will have to consider adaption of fishing gears over time under all options considered. Technical measures adopted by codecision (option 2 and common measures under option 3) or under regionalisation (regional measures under option 3, 4 and 5) will probably evolve over time to meet conservation and environmental protection objectives, requiring changes in fishing gears.

Impacts on SME and micro-enterprises (SME test)

As outlined in section 2.3, almost all enterprises concerned by the reform of the technical measures regulations are SMEs, with most of them being micro-enterprises. Therefore, there are no particular alternative mechanisms and flexibilities that should be considered to specifically support SMEs compared to large enterprises whatever option is considered.

It should be also noted that the EMFF will financially support fishing enterprises (incl. SMEs) for investment in equipment reducing unwanted catches of commercial stocks or other by-catches and


improving size selectivity or species selectivity of fishing gear. The EMFF does not impose any specific conditionality in relation with the size of the businesses eligible for support.

Impact on consumers

The reform options of the technical measures regulation are not estimated to have an identifiable impact on consumers, in particular in terms of prices paid for fishery products or ability to benefit from the internal market. The impact on consumers, if any, will depend to a large extent on the effects of technical measures that will be adopted under the reformed governance mechanisms considered under the different options and these cannot be predicted in advance. According to EUMOFA (2014), EU self-sufficiency for seafood (i.e. the production relative to its internal consumption) is around 45%. While the EU covers fully its needs for flatfish and small pelagics (and even produces surpluses), it is increasingly and highly dependent on external sourcing for groundfish such as cod or haddock, salmonids and tuna. In this context, prices and availability of fisheries products in the EU reflect a balance between global supply and demand, with no particular significant influence of most technical measures regulations focusing on the characteristics of fishing gears. Closures of fishing grounds may have an impact on landings of certain species and drive availability and prices to some extent and under certain conditions (i.e. no alternative sources of supply of the EU market for the species concerned or for substitute species). Other management measures may however have greater impacts on consumers, in particular the level of TACs and their inter-annual variations.

6.3 Social impacts

The development of selective fishing practices through a more effective technical measures framework is expected to have three main categories of social impacts on employment on board EU fishing vessels and related businesses:

• Employment and labour market (principally impacts on the number of jobs and on particular groups of workers).

• Standards and rights related to job quality (principally impact on job quality and adaptation to change).

• Governance, participation, good administration.

Employment and labour market

Impact on the number of jobs

As shown in the section on economic impacts, for some particular segments having high discard rates (typically the vessels engaged in mixed fisheries using towed gears), some studies have shown that the fleets that cannot adapt their fishing strategies to minimise unwanted catches of species subject to the landing obligation may have their fishing opportunities exhausted earlier in the year. For example, Condie et al. (2013) suggests that failing to improve the selectivity of fishing practices under the landing obligation / catch quota will lead to substantial decrease in the number of trips (typically between -30% and -50%) for some particular segments (English otter trawlers targeting Nephrops and whitefish). However in the short term, as noted above, a failure to improve selectivity could in some cases require increased levels of employment onboard vessels for sorting/grading unwanted catches of species below the minimum conservation reference size which will probably need to be stowed onboard separately from marketable catches54. However these increases would probably be small and certainly in the long-term the number of FTEs in the fleet, and in upstream and downstream businesses, could be expected to be reduced on those fleet segments having to adapt their fishing patterns to minimise potential decreases in activity.

54 Proposed amendment to Reg (EC) 1224/2009 through COM (2013) 889


Under reform option 2, similar social impacts on the number of jobs compared to the baseline scenario will probably materialise as fishing enterprises will not have the relevant tools and incentives to improve the selectivity of their fishing practices as under the baseline situation (option 1). As outlined above, limiting the reform of the technical measures regulations under this option will probably accelerate the decreasing rate of employment in the fishing sector.

Under option 3, the similar social impacts compared to the baseline scenario may materialize as well. However, since the EU governance framework will provide for more flexibility for Member States and the catching sector to adapt regional technical measures to particular situations, it can be expected that the negative social impacts on the number of jobs will be less severe compared to the baseline scenario (option 1). The magnitude of the impacts will depend on what the reformed regulatory framework will consider as common rules subject to co-decision and as regional rules subject to delegated or implementing Commission acts.

Under reform options 4 and 5, the EU governance framework will leave more flexibility to Member States and the catching sector to adapt the selectivity of fishing gears to meet the objectives set out by the reformed CFP (MSY, landing obligation). Assuming that the most concerned fleet segments will succeed in developing more selective fishing practices, any negative social impacts in the short term will be less than under all other options, and potential positive social impacts in the long term would be greater than for other options.

Impacts on particular groups of workers

The most affected groups of workers will be those which are employed on fishing fleet segments currently discarding the most, i.e. beam trawls exploiting flatfish species and otter trawls targeting Nephrops and demersal fish in mixed fisheries environments (approx. 3 500 vessels as per data presented in Table 7). According to DCF data, employment onboard vessels engaged in mixed-fisheries activities represents approx. 17 200 FTE, 34% of the total workforce employed on fishing vessels working in the supra region Baltic Sea, North Sea, Eastern Arctic and North East Atlantic. It is not possible to quantify further potential job losses as it will depend on how the most exposed fleet segments will adapt. It can be reasonably anticipated that option 4 and 5, which provides the industry with more flexibility and responsibility to define technical measures will be the most supportive. Option 2, which retains a prescriptive approach, will not improve the situation compared to the baseline scenario. Impacts of option 3 will be in between, but will depend on what are considered as common measures and regional measures during the reform process of technical measures regulations.

For the groups of workers employed on fleet segments fishing selectively, principally those using passive gears or targeting pelagic species, the situation will be probably different, with a less stringent need to adapt selectivity of fishing operations to minimise unwanted catch, and hence, no particular social impacts compared to the baseline situation, whatever policy option is considered.

Standards and rights related to job quality

Impact on job quality and attractiveness of the sector

Crews of fishing vessels operating less selective fishing gears will have more work onboard to handle unwanted catches compared to workers onboard vessels fishing selectively. Additional sorting time of catches that may result from the introduction of the landing obligation has the potential to increase the workload. As a consequence, job quality may deteriorate and this may further undermine job


attractiveness in the sector which has been identified in the impact assessment supporting the reform of the CFP as a key problem to address55.

Reforming the technical measures along the lines of option 2 will not improve the situation considered under the baseline scenario (option 1) as working conditions onboard the vessels will remain potentially difficult as a consequence of having to handle large amounts of unwanted catches at least in the short term before technical solutions can be implemented to minimise catching and handling of these catches in the longer term.

Under option 3, similar impacts on job quality may materialize. However, since the governance framework may provide stakeholders with more flexibility to adapt regional technical measures to particular situations, it can be expected that the negative social impacts on job quality will be less severe compared to the baseline scenario (option 1). As outlined before, the impacts of option 3 compared to the baseline situation will depend on what will be considered as common measures / regional measures.

Under reform options 4 and 5, the EU governance framework will leave more flexibility to Member States and the industry to adapt the selectivity of fishing gears to meet the objectives set out by the CFP and within multiannual plans. Assuming that the most concerned fleet segments will succeed in developing more selective fishing practices, any negative social impacts on job quality in the short term will be less than under all other options, and potential positive social impacts in the long term would be greater than for other options.

According to the impact assessment of the reform of the CFP, the move to MSY is expected to support considerably higher wages for crews. These expected wage increases will possibly counterbalance to some extent the loss of attractiveness stemming from more difficult working conditions on certain fleet segments. The most positive effects would be seen under options 4 and 5 as under these options the MSY objective is likely to be met quickly, reflecting positive changes to exploitation patterns through the use of fishing more selectively.

Restructuring and adaptation to change

Particular examples have shown that stakeholders (see section 1.3.3 page 12) can adapt technical measures regulations to change under positive incentives. On the contrary, prescriptive input regulations are shown to stifle positive technical innovation as stakeholders are encouraged only to use gears that comply with minimum standards and not to focus on the intention of regulations to promote more selective and environmentally-friendly fishing practices (STECF, 2012c).

Option 2 which retains a prescriptive approach will not bring positive impacts compared to the baseline situation. Option 3, which introduces some elements of flexibility for regionalised measures, will probably be more supportive of adaptation compared to the baseline situation. Option 4 and 5, which both introduce a result-based management approach with less prescriptive technical inputs, are likely to support a positive and pro-active attitude of stakeholders towards more selective fishing practices than under the baseline situation.

Stakeholder involvement

Participation of stakeholders in the decision making process is foreseen under the CFP mostly through the Advisory Councils (Art. 43 of Reg (UE) No. 1380/2013). In particular, the CFP foresees that Advisory Councils shall be consulted on joint recommendations pursuant to Article 18

55 See for example COM(2011) 417 on the reform of the CFP


(regionalisation). They may also be consulted by the Commission and by Member States in respect of other measures. Their advice shall be taken into account.

As options 3 to 5 consider greater involvement of stakeholders through regionalisation of technical measures, these options have positive social impacts compared to the status quo (option 1). This is anticipated to translate into greater acceptability of measures, and hence, better compliance (see section 7.1.4 page 70). By contrast, option 2 does not perform better than the baseline situation in terms of governance as this option keeps a similar governance framework with the current level of consultation with the Advisory Councils within the decision-making process will not change. However, this can lead to positive or negative outcomes. For instance, the recent example of the Celtic Sea measures (Box 3 page 19) demonstrates that the involvement of stakeholders through Advisory Councils is possible and desired by National and EU managing authorities to define sensible solutions to selectivity issues.

6.4 Environmental impacts

Concerning the mitigation of impacts of fishing on the environment, the retrospective evaluation of the current technical measures regulations has shown that the lack of flexibility in the current framework prevents the adoption of relevant measures to mitigate impacts on vulnerable ecosystems and on protected species (marine mammals, seabirds, marine reptiles).

Technical measures regulations, mainly through prescriptions on fishing gears and implementation of permanent / seasonal closures of certain maritime areas, have the potential to support the objectives set out by the Habitats and Birds Directives and by the Marine Strategy Framework Directive. In particular, concerning qualitative descriptors of the Good Environmental Status, STECF (2012b) identified four descriptors that are deemed to be impacted by fishing activities :

• Descriptor 1 : Biological diversity. Used in conjunction with other conservation and management measures considered under the CFP, technical measures can have an impact on indicators (i) at species level including species distribution, population size and population condition , and (ii) at functional habitat level with protection of spawning, breeding and feeding habitats, and migration routes in particular through seasonal closures of certain fishing grounds.

• Descriptor 3 : Populations of commercially exploited fish and shellfish are within safe biological limits. As above, used in conjunction with other conservation and management measures, technical measures can influence the stock status indicators (fishing mortality, spawning stock biomass, proportion of fish larger than the mean size at first maturity). This MSFD descriptor is also one of the main aims of the CFP.

• Descriptor 4 : Ensuring that all elements of the marine food webs, to the extent that they are known, occur at normal abundance and diversity. Technical measures can have an influence on this descriptor, in particular through minimising impacts of fishing on top-prey predators (e.g. seabirds, marine mammals) either directly (incidental mortality caused by fishing operations) or indirectly (e.g. supporting breeding success of key seabird species or maintaining sufficient prey resources for marine mammals). Some of the stock indicators for descriptor 3 are also relevant in this context (i.e. proportion of large fish).

• Descriptor 6 : Recovering and maintaining sea-floor integrity at levels that ensure that the structure and functions of the ecosystems are safeguarded and benthic ecosystems. Technical measures are fully relevant to regulate impacts of fishing activities on habitats through closures of sensitive areas to certain fishing activities likely to have an impact (e.g. bottom gears), or measures ensuring that there is no increase in the cumulative footprint of human activities on sensitive habitats.


According to the findings of the retrospective evaluation of the technical measures regulations, the ordinary legislative procedure is not well suited to developing measures to mitigate these types of impacts given the process can be slow and also that issues such as the bycatch of cetaceans are generally regionally specific and emotive, meaning that the debate on such measures can be highly politicised. This applies in particular to technical measures needed to adequately address the requirements set out under MSFD descriptors 1, 4 and 6 which are largely based on spatial and/or temporal closures of certain marine areas and to implementation of mitigation devices to efficiently minimise interactions with protected animal species / habitats.

Concerning MSFD descriptor 3, option 2 would not produce positive impacts compared to the baseline as selectivity will not be adjusted to avoid unwanted catches and area closures aiming to protect commercial fish population when they are the most vulnerable to fishing. Consequently, the move to MSY could take longer than expected.

Under option 2, the architecture for adopting environmental measures is unchanged from the baseline scenario (option 1). It assumes that the flexible instrument provided for in Art. 11 of the CFP concerning the development of conservation measures necessary for compliance with obligations under Union environmental legislation remains available, but is not used extensively. In practice, this implies that technical measures contributing to mitigate the impact of fishing on the environment will have to be adopted through the ordinary legislative procedure.

Under option 3, the proposed architecture will be more flexible with environmental measures distributed between common environmental measures subject to co-decision and regional measures under Commission (implementing or delegated) Acts. It is also assumed that measures are not developed under Article 11. The environmental impacts of this option will depend largely on what the future regulations consider as common measures subject to co-decision and regional measures under Commission (delegated or implementing) Acts. Compared to the baseline scenario, option 3 will perform better as regional technical measures can be adapted much more quickly through the new governance system.

Some environmental measures, in particular those contributing to MSFD descriptor 6 could be included under the common measures. Logically, the common measures could include inter alia permanent ecosystem measures already in the EU acquis, such as prohibition of fishing with bottom gears on vulnerable deep-sea ecosystems, and be adopted in the central regulation under co-decision procedure. Regional measures including measures aiming at reducing interactions between fishing activities and protected species in particular fisheries or regulating fishing activities in designated marine protected areas will be adopted through the procedures described in Art. 11 of the CFP under regionalisation. This mechanism is expected to support Member States efforts to meet the objectives of the EU environmental legislation according to the time frame set out by Art. 13 of the MSFD.

Option 4 considers the adoption of a framework regulation and fully supports the use of Art. 11 of the reformed CFP through regionalisation. The framework regulation will include permanent ecosystem measures already in the EU acquis concerning in particular protection of deep-sea vulnerable ecosystems which do not need to be changed over time. The framework regulation will be also the relevant tool to translate into Union law the environmental protection decisions taken under international agreements (e.g. OSPAR). The full regionalisation of environmental measures is expected to provide Member States with more flexible tools to address the requirements of MSFD descriptors 1, 4 and 6, in particular in areas of their EEZ beyond the limits of territorial seas.

The flexibility will be provided through the possibility to address environmental protection issues at a regional level, and also by the possibility to consider tradeoffs and complementarities between measures focusing on environmental requirements under MSFD descriptors 1, 4 and 6 and measures aiming at conserving stocks at the MSY level (MSFD descriptor 3). For example, as exemplified by


the discussions around the measures to protect features in the Dogger Bank area (NSRAC, 2012), it will be easier under option 4 to introduce temporal restrictions on certain fishing activities on a rotational basis for example, than under the baseline scenario (co-decision only). The measures, if adapted to minimise as far as possible negative effects on the fishing industry will be better accepted and complied with. In addition, the identification of environmental measures contributing to MSFD descriptors at a regional scale can better take into accounts the effects of certain measures which could negatively impact other environmental requirements. For example, fishing effort displacement as a consequence of closures adopted to contribute to descriptors 1, 4 or 6 and which could negatively impact stock conservation at MSY level (descriptor 3) can be anticipated and counterbalanced from the outset.

Option 5 will provide environmental impacts similar to option 4, with regionalisation of technical measures providing the required flexibility to adopt environmental measures contributing to the achievements of MSF descriptors 1, 4 and 6 in a timely manner.

In terms of sustainability of exploited stocks (MSY objective included under MSF Directive descriptor 3), option 2 would not produce positive impacts compared to the baseline scenario as the industry and Member States will not have the flexible tools to adjust selectivity to avoid unwanted catches.

Consequently, the move to MSY could take longer than expected. Option 3 will perform better if regional technical measures can be adapted through the new governance system. The transition period to MSY may be shorter than under option 1 and 2. Full use of regionalisation for the design of technical measures under options 4 and 5 is likely to contribute to faster move to MSY. Expected impacts on transition to MSY under option 5 are more difficult to identify ex-ante. They will depend to a large extent on how Member States will adapt technical measures applying to their vessels, in the absence of even minimal EU technical rules, to meet the overarching conservation objectives set out in multiannual plans.

6.5 Administrative costs

Introduction

In considering the potential administrative costs, the EU Impact Assessment Guidelines56 require that the first step should be to map existing information obligations. In terms of mapping existing information obligations contained within existing Regulations, the costs cannot be quantified or easily separated out from the costs associated with other functions and activities by those involved.

The IA Guidelines also provide advice on the scope and applicability of the assessment of administrative costs, specifically noting that :

i) ‘for all policy options, the IA should provide details of the information obligations for businesses, for citizens and national/regional/local administrations that are likely to be added or eliminated if the option were implemented’, and

ii) ‘that in those cases in which the change in administrative burden is likely to be significant, the effects should be quantified using the EU Standard Cost Model (SCM)’.

In considering the first point, it should be noted that this impact assessment considers changes in governance arrangements for technical measures regulations, not the impacts of a prescribed and defined set of new technical measures per se (under options 1-3 there would be little change in the technical measures in force, and under options 4-5 specific technical measures that might result are not known, as these options concentrate on the governance arrangements for the specification of the

56 http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/iag_2009_en.pdf


technical measures). None of the options can be viewed therefore as having any quantifiable impacts on requirements for any additional information obligations57.

Any consideration of the use of the SCM is therefore not deemed necessary. Annexes to the IA Guidelines58 state that unless information obligations are at the core of regulatory proposal (e.g. labelling or reporting requirements), which is clearly not the case in the context of this impact assessment, then the administrative burden need not be assessed for all policy options, only for the preferred one.

For these reasons, assessing the changes to administrative costs of information obligations is not considered to be relevant in the context of this evaluation, so no attempt has been made to assess the costs using the EU SCM.

Nevertheless, the different options described above, could have different implications in terms of the associated costs in the broader context, and so the potential costs and how they might differ under the different policy options proposed have been considered even though not required by the IA Guidelines.

The types of costs that might be affected by the different options are those both within the EU budget, and the costs incurred in Member States, and can be categorised as follows :

• Control costs (staff costs, operational costs, and potentially fixed costs, associated with the use and deployment of different control means, i.e. sea-based platforms, aerial surveillance, land-based inspections, administrative cross-checking).

• Administrative costs (staff time and operational costs associated with travel, use of meeting rooms, etc.) associated with administrative meetings related to the specification, explanation, negotiation, and monitoring of technical measures.

• Administrative burden on the catching sector. • Scientific research costs associated with technical measures. • Financial support aimed at incentivising the uptake of, and innovation in technical measures

(e.g. the EMFF).

Changes in administrative costs compared to the baseline situation could be experienced by:

• Managing and control authorities of Member States • The Commission

Quantifying the baseline situation/current costs under option 1 is not possible, because no reliable data exist for the specific implementation or control costs associated with enforcing technical measures as opposed to other requirements, i.e. there are no data on control costs just for technical measures as opposed to controlling other management measures, nor scientific research costs documented specifically for research on technical measures as opposed to other research topics.

The retrospective evaluation does however provide some elaboration on the costs associated with research, and with control which can be considered partially attributable to technical measures.

57 Information/reporting requirements under option 5 would derive from the use of objective based management but not from the technical measures themselves that might or might not be put in place in the regions. 58 e.g. Annex 10 of: http://ec.europa.eu/smart-regulation/impact/commission_guidelines/docs/ia_guidelines_annexes_en.pdf


For control costs, referencing Oceanic Développement (2000) 59 and an unpublished Impact Assessment of a Proposal to Reform and Modernise the Control System applicable to the Common Fisheries Policy60), the retrospective evaluation suggested in 2008 a total of around EUR 163 million for Denmark, Ireland, the UK, France and Spain (or an average of around EUR 33 million per Member State), with the percentage of total costs by different inspection means being 25 % land, 57% sea, 6% air, 2% VMS/FMCs, and 10% administration. Unit costs for sea and air surveillance obviously differ enormously between Member States based on the size of the assets being used and their running costs, where surveillance takes place (e.g. inshore or offshore), and whether assets are dedicated for fisheries surveillance activities, but figures in the range of EUR 2 500 - 4 250/hour for aerial surveillance (e.g. for a Dash 8 aircraft), and EUR 10 000 –18 000/day for offshore FPVs/MPVs are not untypical. It should be recalled that all these costs relate to control of all input, output and technical management measures, as it is not possible to itemise costs specifically related to the control and enforcement of technical measures.

The retrospective evaluation also provides some data on research costs highlighting that 6 research framework programmes represent a cumulated total investment of EUR 18.8 million including EUR 10.9 million funded from the EU budget on research targeted at improving the selectivity of fishing gears or decreasing the impacts of fishing gears on habitats. Many Member States have funded additional research themselves, for example, France allocated EUR 2 million between 2008 and 2012 to support 11 selectivity projects (including EUR 0.9 million from the EFF and EUR 1.1 million national contribution).

In addition, it can be supposed61 that staffing costs in all Member State managing authorities might be in the range of around EUR 100 000 per full-time equivalent employee and per year when considering salaries and associated social overhead charges, and related operational costs for attendance at meetings, office running costs, etc. An admittedly hypothetical number of 30 full-time equivalent employees in each Member State might then result in staffing costs for each Member State of around EUR 3 million per year. Unit staff costs per year in the Commission, for those individuals representing private sector representative organisations, and for scientists, may also be considered to be of a similar order.

While only illustrative in nature, such costs do serve to highlight the relatively high costs of control and enforcement compared to staffing costs in the Commission, Member State managing authorities and private sector organizations, i.e. control costs per Member State may be around 10 times the staffing costs in managing authorities. Put another way, an assumed daily cost of a full-time staff member (EUR 274/day) in the Commission, a Member State managing authority or a private sector organisation, might be just 1.5% of the daily cost of a fisheries patrol vessel (EUR 18 000/day). This in turn suggests that options which serve to reduce control and enforcement costs may have a particularly positive impact on reducing total administrative costs.

While these figures can be borne in mind when considering the changes in costs associated with different options, the discussion in the text below is nevertheless still limited in terms of its ability to quantify the changes in administrative costs that might be expected under the different options. The different impacts of the options are therefore considered largely in qualitative terms, to consider whether different types of costs experienced by different stakeholders might rise or fall under the different policy options, and over the short and longer terms. Other comments and justification provided elsewhere in this evaluation for the use of qualitative, rather than a quantitative assessment

59 Oceanic Développement (2000). Cost Benefit Ratios of Different Control Strategies. Unpublished report for the European Commission. 60 MRAG Ltd., Oceanic Développement, Poseidon Aquatic Resource Management Ltd, Lamans s.a., Institute of European studies and IFM (2008). Unpublished report. ‘Impact Assessment of a Proposal to Reform and Modernise the Control System applicable to the Common Fisheries Policy’. 61 Contractors’ estimate.


of impacts, also apply to the necessity of providing a qualitative assessment of the impact of the different options on administrative costs.


Being the baseline situation, and noting the changes from the current status quo (to reflect the CFP reform), the administrative costs associated with the baseline situation can be assumed to be the administrative costs in terms of the types of costs currently experienced by the relevant parties as discussed in the introduction to this section above. Under this option no significant changes in administrative costs for Member State administrations of the Commission are envisaged either in the short or longer term, nor are changes to the administrative burden faced by the catching sector expected, and costs for enforcement of technical measures remain high due to a high level of at sea monitoring. Any staff costs to the European Commission and Member States managing authorities related to amending legislation to reflect implementation of the CFP already exist and are not the result of a policy change specifically with regards to technical measures. So, potential increased costs for control authorities if fishing vessels cannot reduce their unwanted catches leading to non-compliance with the landing obligation can be thought of as being as a result of the CFP rather than by a policy change with regards to technical measures.

Option 2 : Consolidation and simplification of technical measures rules

This option involves little significant change in the substance of the technical measures, and other simplification and consolidation. Therefore the administrative costs are more or less the same as the baseline scenario.

For the Member State control authorities, the administrative costs associated with all options relate directly to the extent to which the options provide for simplification and acceptability (see also section 7.1.4). Simplification under this option should result in marginal improvements in the extent to which technical measures are understandable and enforceable which should reduce control costs in both the short and longer-term. Simplification should also result in greater acceptance leading to higher compliance, which in turn will reduce control costs in both the short and longer-term. However simplification under this option will be minimal and consist primarily in a recasting of the current regulations. Therefore, acceptability by the catching sector would remain low (slightly lower under option 1 than option 2), because of the low levels of participation by stakeholders in the decision-making process. For these reasons any reductions in control costs would be negligible and the control costs would remain high as in the baseline option.

Administrative costs for the Commission and Member States associated with the specification, explanation, negotiation, and monitoring of technical measures, would not be expected to change in either the short or longer-term (although might marginally decrease through simplification), nor would the administrative burden for the catching sector - staffing costs for the catching sector representation (e.g. Advisory Councils and Producer Organisations) would not materially change in either the short or longer-term, and as they would not be significantly involved in the process of proposing and formulating regulations more than they are under the baseline scenario. This option would also not necessarily result in any significant changes/introduction in technical measures required under the regulations in the short-term, and therefore there would not necessarily be additional costs in terms of investments in new gear by the catching sector as a result of a change in the regulations.

Research costs (from EU funds or Member State budgets) for staff scientist costs and operational expenses associated with research would not change in either the short or longer-term, with scientists inputting to the process as they do now. Costs associated with financial support aimed at incentivising the uptake of, and innovation in technical measures (e.g. from EU and Member State contributions), would also not change in either the short or longer-term.



Option 3 assumes that the possibility for regionalisation is not well used, and that the uptake of the use of multiannual plans is slow.

The greater extent to which technical measures reflected regional diversity, even in the absence of significant involvement by Member States and the catching sector in the specification of technical measures for the regions, would begin to increase levels of acceptability and simplification, leading to reduced control costs over time, in both the short and longer-term. Given that many of the control means needed to detect infringements in technical measures are sea-based and relatively expensive compared to land-based inspection means, even small reductions in the need for at-sea control time could have material impacts on control costs. However, it should be recognised that the change between option 2 and option 3 essentially involves the architecture for technical measures (i.e. where they are put), rather than fundamental changes in technical measures themselves. So any reductions in control costs would be minimal. For the same reason, there may be very little change in scientific/research costs compared to the baseline situation.

The Commission’s role in defining the detailed rules to be applied on a regional basis (with a reduced set of common rules) will be important, but no further substantial changes (for instance towards more selectivity or avoidance) in addition to the ones mentioned before (mainly related to the landing obligation) are foreseen under this option. As a result, the administrative burden on Member State management authorities associated with the formulation and compliance of technical measures for the catching sector would probably not change from present levels. Costs for the Commission might increase in the short-term during the process to define which rules should be regionally applied and which were left in the common rules, and Commission staff costs would increase through their involvement with the drafting and passing of Commission Acts (delegated and/or implementing Acts) for those technical measures to be regionally applied.


Under option 4, the framework approach leads to a high level of simplification and provides the possibility for regionalisation, which is actively taken up by Member States and the catching sector at regional levels resulting in much greater stakeholder engagement and involvement. This would have a number of consequences.

With respect to control costs, greater acceptability (from greater participation by the catching sector in the specification of measures relevant to them in their regions), should reduce control costs considerably compared to options 1-3 in both the short and longer-term. Even if the use of regionalisation may not necessarily translate into simple rules, it can be expected that regional measures will be more focused and streamlined, leading to simplification and improved controllability. Control costs may also diminish considerably over time as regions begin to move to a much more output driven system. The onus will be increasingly on demonstrating the impacts rather than controlling and measuring gears at sea.

While costs associated with the involvement by Commission staff may decrease in terms of having to amend EU-wide regulations (as per the current situation), they would need to be involved in the passing of Commission Acts, which could be ongoing and numerous given the number of different regions and the potential for the regions to change measures frequently under responsive multi-annual plans and/or changing patterns of stocks. Staff costs for Member States managing authorities and the administrative burden on the catching sector could also rise in the short-term quite significantly because they would become much more involved than under previous options, in the specification of relevant technical measures under regionalisation. The private sector would become more involved through the RACs and through discussions with the managing authorities of Member States, to define regulations that suit the needs of their areas/fleets.


At the same time, costs for national/regional scientists, STECF and ICES may rise considerably and on an ongoing basis in order to provide (i) the regions with information to determine the effectiveness and relevance of regionally-specific technical measures proposed, and (ii) the Commission with scientific advice to determine whether to approve the proposals made at the regional level.

This option assumes that there would be material changes in the technical measures actually in place (as opposed to options 1-3 which do not). As a result, the catching sector may face some additional costs associated with adaptation to new technical measures but the flexibility introduced under this governance option will support introduction of measures that do not necessarily require gear modifications (i.e. seasonal closures of fishing grounds to protect juveniles or spawners; or to avoid concentrations of protected species) or costs that will be offset in benefits from increased revenues as a result of landing larger more valuable fish. These direct costs could also be largely offset by financial support as foreseen under the EMFF.


Costs compared to the baseline situation are considered as being similar to those described above for option 4. Commission staff costs will be lower due to less involvement with specifying and passing EU-wide legislation under the co-decision procedure, but higher in terms of their involvement with Commission Acts; Member State managing authorities and catching sector staff costs will be higher from their greater involvement in defining appropriate measures for the regions; Costs for national/regional scientists, STECF and ICES will increase due the need for more research and advice to determine regional suitability of proposed measures; catching sector costs resulting from the introduction of new gear to respond to new technical measures, will increase but the potential benefits of such costs in the longer-term are unclear. Financial support aimed at incentivising the uptake of, and innovation in technical measures will increase to react to the introduction of new measures; and control costs will be lower from greater acceptability and less reliance on at-sea enforcement.

Conclusion on administrative costs associated with the different options

In conclusion, the above discussion highlights that options 2-3 would result in few changes in administrative costs compared to the baseline situation, in their broadest sense (as opposed specifically to the more limited concept of information obligations) for most stakeholders. Costs could be reduced significantly under options 4 and 5 in the medium to long term.

While a quantitative comparison of changes in costs is not possible, the potential for options 4 and 5 to significantly reduce control costs, which for the baseline scenario and options 2 and 3 are high even if staff and research costs may rise, suggests that options 4 and 5 may result in overall positive changes/reductions in administrative costs compared to the baseline situation. Additional relevant comment is however provided in relation to the risks of the different options (see section 7.3).

Under options 4 and 5, increased costs for Member State managing authorities and the catching sector could result in the short to medium term from their greater involvement in defining technical measures as a result of their greater participation under regionalisation. Costs for the catching sector would also potentially rise under options 4 and 5 in response to new technical measures (i.e. in the form of gear modifications, short-term impacts on financial performance), but the long term benefits to the catching sector of responding to new regionally-specific technical measures to better ensure stock conservation and long term financial performance, could be expected to offset such costs.

In addition, the EMFF foresees availability of public funding to support development of selectivity. Cost for the scientific community, and in terms of financial support from EU and national contributions as part of the EMFF specifically related to technical measures, could also increase compared to the baseline in options 4 and 5, with regionally-specific scientific evidence required to justify regional


measures, and support needed and provided to fleets to adapt to new regulations at the regional level. But again, long-term benefits from resulting stock improvements would offset any such costs.

Options 3-5 would all reduce the staff costs for the Commission in terms of involvement with EU-wide legislative changes under ordinary procedure, but could increase staff costs associated with the development of regionally applicable Commission Acts.

Moving from the baseline situation in option 1 through to option 5 would bring about progressive increases in stakeholder acceptability with technical measures regulations, thereby leading to progressive reductions in control costs. Given the high costs of sea-based inspection means necessary to enforce many technical measures, such reductions could be significant.

For the catching sector there may be some costs of demonstrating that what they claim they are doing in support of a more output driven system is actually what they are doing, but such costs would decline over time as increasing confidence is provided by meeting management targets. The extent to which options 4 and 5 would also bring about simplification of regulations compared to the baseline situation, and therefore reduced costs, would depend on the extent to which regionally agreed technical measures were simplified or not compared to the baseline situation. This being said, it can be expected that regional technical measures which will be not necessarily be simple (in essence, technical measures need to be prescriptive) will be more streamlined and focused, supporting simplification. This will represent major progress compared to the baseline situation in which there are too many technical measures regulations trying to control too many aspects of fishing operations.

7 Comparing the options

7.1 In terms of effectiveness, efficiency, coherence and acceptability

7.1.1 Effectiveness

The ex-post evaluation of the technical measures regulations has shown that the main problem is associated with the effectiveness of the measures in reducing unwanted catches. In fact, most of the specific objectives identified in revising the technical measures regulations intend to provide for corrective measures to increase the effectiveness of the regulations in reducing the amounts of these unwanted catches and in supporting compliance with environmental EU legislation.

The following table compares the likely effectiveness of the different options in achieving the specific objectives defined. The basis for scoring the options is detailed below.

Score Legend 0 Does not improve and/or worsen the situation compared to the baseline scenario 1 Little change in the situation and small improvements compared to the baseline scenario 2 Significant improvements compared to the baseline scenario 3 Very significant improvements compared to the baseline scenario


Table 8: Comparison of the effectiveness of the different options against the baseline scenario and reasons for scoring

Specific objective Option 2 (consolidation of technical

measures regulations)

Option 3 (partial regionalisation of

technical measures regulations)

Option 4 (full regionalisation of technical


Option 5 (No EU technical measures

regulations) Provide for a more flexible architecture for adopting technical measures

0 2 3 3 Situation similar to baseline scenario. The ordinary legislative procedure is not adapted for regulating technical measures (inflexible and disproportionate)

The CFP regionalisation framework to modify existing regional measures or to adopt new regional measures will provide for more flexibility. However, common measures will still fall under the less flexible ordinary legislative procedure. Effectiveness of this option depends on what will be appreciated as common measures under co-decision or regional measures under Commission delegated or implementing acts

This option makes full use of the regionalisation of the CFP. Commission empowerment to adopt technical measures on the basis of proposals from Member States having a direct management interest in the fisheries will provide for more flexibility compared to the baseline scenario.

Same as option 4

Move from a prescriptive approach to a result-based management approach by setting objectives in relation with the outputs of technical measures rather than on the technical design characteristics of the measures.

0 1 2 3 This option keeps a prescriptive approach to technical measures similar to the baseline scenario

Not very different from the baseline scenario as the basis for common or regional measures will remain focused on prescription on the inputs with multiple rules. However, as regionalisation develops, the regional technical measures may become more streamlined and focused on the objectives of the multiannual plans.

Compared to the baseline scenario, this option introduces a result-based management approach by setting selectivity baselines and objectives. This option leaves to Member States the definition of technical measures that meet EU defined conservation and environmental requirements under objectives set out by the multiannual plans and/or environmental legislation.

Member States have full latitude to define and implement technical measures meeting the objectives set out in the multiannual plans and/or environmental legislation. This option considers a full result based management approach.


Specific objective Option 2 (consolidation of technical







regulations) Ensure that a transparent and participatory approach is taken to the definition and specification of technical measures before they are introduced.

0 2 3 3 Similar to baseline scenario. Consultation of the ACs and involvement of the European Parliament in the decision making process brings more transparency compared to pre-Lisbon Treaty situation, although co-decision is not totally free of political interferences.

The fishing industry and other stakeholder members of ACs will have a proactive role in proposing regional technical measures in the context of the regionalisation of the CFP. However, common technical measures will continue to be adopted under the ordinary legislative procedure as under the baseline scenario

Full regionalisation of the decision-making process for identifying and proposing technical measures will support proactive involvement of stakeholders members of the ACs

Same as option 4


0 2 3 3 Similar to the baseline scenario. Proposals for new technical measures in addition or modifying the EU acquis will be supported by science-based evidence. However, political negotiations during ordinary legislative procedure may lead to alteration of the proposed measures and dilution of their expected impacts.

Proposals for new or modified regional technical measures will be supported by science-based evidences. Proposals for new or modified common measures will be as for the baseline scenario, affecting the effectiveness of this option.

Objective based management will impose the burden of proof on Member States which will have to demonstrate that the technical measures adopted conform with selectivity baselines and support multiannual plans objectives

Same as option 4 (but with no selectivity baseline to comply with)

Total scoring (% highest score)

0 (0%)

7 (58%)

11 (92%)

12 (100%)


The following figure summarises the scoring of the different options against the effectiveness criteria.

Figure 6 : Scoring of the different options against the effectiveness criteria compared to the baseline scenario (option 1)

Options 4 and 5 have the best performances in terms of effectiveness. Compared to the baseline scenario (option 1), these two options are evaluated to be effective (i) in providing for a more flexible legal architecture as technical measures will be largely developed regionally and thus better tailored to the specific fisheries, (ii) in supporting a transparent and participatory approach with a better defined role for the regional Advisory Committees under regionalisation, and (iii) in promoting scientific assessment of the impacts of technical measures as Member States and the catching sector, in the frame of regionalisation, will have to demonstrate that technical measures developed regionally are effective and supported by scientific evidences, i.e. a shift in the burden of proof.

The main aspect undermining the effectiveness of option 3 is that it does not necessarily result in a change in the measures themselves. Compared to the baseline scenario, this option introduces a change in governance with a potential for more flexibility for changing / adapting, as opposed to common measures which remain under the co-decision procedure. Although the effectiveness of this option in supporting the other specific objectives of the reform is globally satisfactory, its efficiency is less than for options 4 and 5 as a common measures will remain under the co-decision procedure. In addition, option 3 does not necessarily incentivize compliance as the measures remain largely the same.

Option 2 does not solve any of the problems underpinning the lack of effectiveness of the technical measures regulations as the measures themselves and the governance structures remain largely the same as the baseline scenario.

7.1.2 Efficiency

According to the Financial Regulation / Implementing rules62, this criterion is not relevant as the reform of the technical measures regulations does not have a direct impact on the EU budget. EU

62 Regulation (EU, EURATOM) No. 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No. 1605/2002. Implemented by Commission Delegated Regulation (EU) No. 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No. 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union.

0

2

4

6

8

10

12

14

Option 2 Option 3 Option 4 Option 5

Scoring Effectiveness

Assessment of technical measures

Transparent and participatory approach

Result-based management

Flexible legal architecture


expenditures to support the reform of the technical measures regulations will be provided through the European Maritime and Fisheries Fund (EMFF) which has already been subject to an impact assessment63.

Costs associated with the definition of technical measures, and with control and enforcement thereof are considered under the section addressing the administrative costs of the options.

7.1.3 Coherence

The following table evaluates the extent to which the policy options are coherent with the objectives of the new CFP (internal coherence) and the overarching objectives of the EU policy (external coherence).

The internal coherence of the different options leading to reformed technical measures regulations is evaluated against the main aims of CFP including:

• Restoring and maintaining exploited stocks at MSY levels. • The landing obligation. • The regionalisation of the decision making process.

The other overarching objectives of EU policy considered in the table include:

• The objectives of EU environmental legislation (Habitats and Birds Directives, Marine Framework Strategy Directive).

• Europe 2020 objectives. • Simplification of EU acquis.

Simplification is one of the main policy objectives for technical measures for technical measures in the new CFP. From a methodological perspective64, simplification can be achieved through:

• Deregulation – removing regulations from the statute book, leading to greater liberalisation of previously regulated regimes. Concerning technical measures, deregulation consists in setting objectives (objective based management) focusing on the intended and desired results, with stakeholders adapting the technical measures to reach these objectives as and when needed.

• Consolidation – bringing together different regulations into a more manageable form and restating the law more clearly. For technical measures regulations, this involves a recast of all relevant regulations into a limited number of instruments.

• Rationalisation – using ‘horizontal’ legislation to replace a variety of sector specific ‘vertical’ regulations and resolving overlapping or inconsistent regulations. Technical measures can rationalised by adopting a central regulation that apply across EU fisheries and leave region specific technical measures in separate instruments.

The following table shows how each option supports simplification compared to the baseline situation.

63 SEC (2011) 1416 final 64 http://www.administrative-burdens.com/


Table 9 : Potential for simplification of each option compared to the baseline situation


Consolidation Existing legislation consolidated under a single instrument as far as legally possible

Rationalisation Ensuring full internal consistency of the different technical measures

Deregulation --

Partial as option 4 keeps a central technical measures regulation under co-decision while incorporating a result based approach

Full objective based management with

minimal prescriptions on technical

measures in a framework regulation

The comparison indicates that both options 4 and 5 lead to significant simplification compared to the baseline situation (i.e. a number of regulations will either be completely or partially repealed). Options 4 and 5 potentially allow moving to an objective based management strategy with minimal EU technical measures rules - a very high level of simplification. Both options 2 and 3 contribute to simplification through a recasting of existing technical measures into a single instrument as far as legally possible. However, these two options do not necessarily repeal many specific measures.

Another point added under the coherence comparison is the issue of compliance with international obligations stemming from international agreements (whether bilateral or multilateral). This point does not relate to any overarching of EU policy, but is simply a legal obligation applying to the EU and its Member States.

Since the reform of technical measures regulations does not raise any issue in relation with EU rules on data protection, the coherence of the policy options with the relevant rules applying to data protection will not be discussed further.

The basis for scoring the options is detailed below (similar to other scoring basis utilised for the other criteria).



Table 10: Comparison of the internal coherence of the different options against the baseline scenario and reasons for scoring

Coherence with the three pillars of the reformed CFP

Option 2 (consolidation of technical







regulations) Stocks at MSY in 2019 at latest

0 2 3 3 By comparison with the baseline situation, the current exploitation pattern of stocks may not improve and consequently, does only partially support MSY objective. This does not mean that MSY will not be attained, but this will require higher fishing mortality reduction objectives possibly constrained by the magnitude of inter-annual quota adjustments under multiannual plans

Compared to the baseline situation, option 3 provides for adaptation of exploitation pattern of stocks. However, whilst regional measures may be adapted swiftly through the CFP regionalisation framework, common measures subject to co-decision may prove longer to adapt.

This option supports swift adaptation of technical measures regulations to improve selectivity and hence, the exploitation pattern

Same as option 4

Landing obligation for all species concerned

0 2 3 3 Option 2 does not provide for the relevant mechanisms for reduction of unwanted catches. Coherence would suggest that the landing obligation is accompanied by flexible mechanisms to support reduction of unwanted catches in the first place under industry led initiatives.

Compared to the baseline scenario, this option provide for flexible tools to adapt the selectivity of fishing gears to reduce unwanted catches for regional measures. Common technical measures may prove longer to adapt to reduce unwanted catches. However, this option includes as starting point the current technical measures regulations. Adaptation may take time.

This option provide for tools to adapt the selectivity of fishing gears to reduce unwanted catches.

Same as option 4


Coherence with the three pillars of the reformed CFP








regulations) Regionalisation of the CFP

0 2 3 3 Option 2 does not use the regionalisation mechanisms included in the reformed CFP

Compared to the baseline scenario, this option foresees adoption / adaptation of regional measures through the regionalised decision making process as established under Art. 18 of CFP. Common measures will remain under centralised management

Compared to the baseline scenario, this option makes full use of the CFP regionalisation framework

Same as option 4


0 (0%)

6 (67%)

9 (100%)

9 (100%)


Table 11: Comparison of the external coherence of the different options against the baseline scenario and reasons for scoring

Coherence with overarching objectives of EU policy








regulations) EU environmental legislation 0 3 3 3

Like the baseline situation, this option 2 does not provide for the required flexibility to adapt technical measures to protection of the environment

Regional measures can be adapted as foreseen under Art. 11 of the reformed CFP without conflicting with environmental measures regulations adopted under co-decision

This option considers full use of regionalisation and provisions of Art. 11 of the reformed CFP

Same as option 4

Europe 2020 0 2 3 3 Waste of natural resources occurring if unwanted catches cannot be reduced and have to be landed with no economic benefits

Unwanted catches are reduced by adaptation of selectivity, but the process is longer than under option 4 and 5

Relevant option to reduce waste of natural resources in the first place through more effective regionalised technical measures regulations.

Same as option 4

Simplification of EU acquis 2 2 3 3 Some simplification with technical measures regulations being recast (consolidation of technical measures regulations, rationalisation)

Higher level of simplification with regional measures in separate regulations (consolidation, rationalisation)

EU technical measures regulations dramatically simplified by introducing a result-based management approach (consolidation, rationalisation, partial deregulation)

Same as option 4, with even more simplified technical measures regulations (consolidation, rationalisation, deregulation)

Compliance with international legislation (legal obligation for the EU, not related to overarching objective of EU policy)

0 2 3 3 Option 2 does not provide with the required flexibility to introduce internationally agreed technical measures in the legislation.

Compared to option 2, this option provides for more flexibility to adapt EU technical measures regulations. However, the flexibility will apply only to regional measures.

Compared to the baseline situation and options 2 and 3, this option provides for an adequate architecture to integrate swiftly technical measures agreed at the international level into EU rules.

Same as option 4


2 (16%)

9 (75%)

12 (100%)

12 (100%)


The following figure summarises the performances of the different options in terms of internal coherence.

Figure 7 : Scoring of the different options against the internal coherence criteria compared to the baseline scenario (option 1)

Options 4 and 5 are those offering complementarities and potential synergies with the three main aims of the reformed CFP (MSY objective, landing obligation and regionalisation of the CFP). By providing a flexible architecture for adaptation of technical measures under regionalisation, these two options are likely to support the expected outcomes and modus operandi of the CFP (more responsibilities on Member States).

Option 3 also performs well in terms of internal coherence although, compared to option 4 and 5, regionalisation is not the focal point and a large part of the current rules remain under co-decision.

By contrast, option 2 is not fully aligned with the CFP. In particular, this option does not drive regionalisation and does not necessarily provide the flexible tools needed to minimise unwanted catches in response to the landing obligation. Similarly, if selectivity of fishing practices is not adjusted through technical measures, the MSY objective will be more difficult to attain within the time-frame foreseen by the reformed CFP.

0

2

4

6

8

10


Scoring Internal coherence

Regionalisation of the CFP

Landing obligation

MSY objective


Figure 8 : Scoring of the different options against the external coherence criteria compared to the baseline scenario (option 1)

Options 4 and 5 are the most likely to support the objectives of overarching EU policy. These two options contribute to the simplification of EU acquis, support the objective of resource efficiency of the Europe 2020 strategy and provide the flexible tools to Member States to support compliance with EU environmental legislation, in particular outside territorial waters where problems to be addressed have a transnational dimension requiring uniform application of rules. As previously mentioned (environmental impacts); flexible regional technical measures will be better supportive of Member States efforts to reach the environmental objectives of MSF Directive descriptors impacted by fishing activities (descriptors 1, 4 and 6) and will be more adapted to reach MSY level for commercial stocks (descriptor 3).

Option 3 also has positive advantages relating to external coherence with EU overarching policy. However, this option will result in a lower degree of simplification as the current technical measures regulations are simply redistributed between common measures and regional measures. It is also expected that less flexible technical measures (as a consequence of maintaining common technical measures under co-decision) will be less supportive of Europe 2020 strategy. Concerning external coherence with EU environmental legislation, option 3 performs well under the likely assumption that the common measures will retain only current acquis (i.e. prohibition of fishing with bottom gears on some vulnerable deep sea cold-reef habitats). Other environmental measures, in particular in offshore waters, will be identified and developed under the flexible regional framework, with expected better contribution to MSF Directive descriptors impacted by fishing.

Option 2 provides for little or no benefits in terms of external coherence. It includes limited simplification of the current technical measures regulations, although the potential for simplification is limited to a re-casting of the existing measures. Similarly, compared to the baseline situation, option 2 does not support compliance with EU environmental legislation and Europe 2020 strategy.

Concerning compliance with international obligation, options 3 to 5 are likely to be most coherent compared to the baseline situation. Since the adoption of the Lisbon Treaty in 2010, the EU has lost the flexibility provided for by the annual fishing opportunities regulations to include technical measures agreed with international partners exploiting the same stocks (e.g. Norway). For example, a measure agreed in 2009 with Norway concerning the prohibition of slipping by pelagic trawlers and move-on rules could only been incorporated in 2013 in the EU legislation through an EP/Council Act amending Council Reg (EC) No. 850/98. This delay may have caused some frustration on the Norwegian side.

0

2

4

6

8

10

12

14


Scoring External coherence

Compliance with Int. obligations

Simplification of EU acquis

Europe 2020 objectives

EU environmental legislation


7.1.4 Acceptability

The ex-post evaluation of the technical measures regulations has shown that acceptability of technical measures by the fishing industry is underpinned by three main conditions:

• EU technical measures should bring conservation benefits for the exploited stocks they intend to protect. Technical measures should be applied uniformly across Member States (i.e. level-playing field).

• Technical measures should as far as possible be set regionally and tailored to specific fisheries.

• Stakeholders should be involved in the formulation of technical measures regionally.

Acceptability of technical measures by the industry is pivotal as it underpins better compliance. Better compliance ensures in turn that the results of EU technical measures are not diluted and also contributes to decrease the burden put on Member States control authorities.

The following table evaluates how the different reform options considered are likely to support better acceptability of EU technical measures by the EU fishing industry.

The basis for scoring the options is detailed below (similar to other scoring basis utilised for the other criteria).



Table 12: Comparison of the acceptability of the different options against the baseline scenario and reasons for scoring

Conditions for acceptability of technical measures by the industry








regulations) Perception of a level playing field

0 0 0 0 Similar to baseline situation with technical measures regulations perceived as maintaining a level playing field across fisheries (all fleets subject to same measures as a result of uniform application of rules through EU acts). Therefore, this option is not evaluated to bring any improvement to a situation that is reported to be satisfactory by the industry and Member States.

Similar to the baseline situation. No particular improvement to be expected under this option. All fleets subject to same measures as a result of uniform application of rules through EU acts (co-decision for common measures, Commission Implementing or delegated acts for regional measures).

Same as option 3, except that most technical measures will be implemented through Commission Implementing or delegated acts as foreseen under Art. 18 of the CFP regulation (regionalisation).

Same as option 4

Perceived benefits 0 2 3 3 Current measures (carried on under this option) are not perceived by the industry to be effective to conserve the stocks. In addition, not allowing flexibility of technical measures to avoid unwanted catches in view of the landing obligation will not be understood by the industry.

Regional technical measures introduced under regionalisation will be perceived as more relevant by the industry in terms of contribution to the conservation objective of the CFP. Common measures which will be more difficult to modify / complement may be perceived as less relevant.

Full regionalisation will support adoption of technical measures proposed in majority through ACs initiatives.

Same as option 4


Conditions for acceptability of technical measures by the industry








regulations) Involvement in the decision-making process

0 2 3 3 Like under the baseline scenario, the industry through ACs will have the opportunity to be involved in the decision making process. However, the result of the involvement of fishermen can be diluted by political considerations if technical measures are adopted through the ordinary legislative procedure

The industry through ACs will have the opportunity to be involved in the regionalised decision making process for adoption of regional measures. Involvement of the Industry may be diluted as per option 2 for adoption of common measures through the ordinary legislative procedure

The industry through ACs will have the opportunity to be involved in the regionalised decision making process for adoption of regional measures.

Same as option 4

Total scoring 0 (0%)

4 (44%)

6 (67%)

6 (67%)


Figure 9 : Scoring of the different options against the acceptability criteria compared to the baseline scenario (option 1)

Overall, options 4 and 5 are likely to be better accepted by Member States and the industry compared to the baseline situation. Regionalisation will lead to greater stakeholder involvement in the decision-making process with as an output, promotion of sensible and streamlined technical measures. If technical measures are better accepted by the industry, compliance will be improved with positive impacts on costs borne by Member States for control and enforcement.

Option 3 ranks third. The main drawback of option 3 compared to options 4 and 5 is that it divides the current measures into common and regionally specific rules. While this is an important change, it will not necessarily be better accepted by the industry as this option is still very much Commission led rather than regionally led.

Option 2 does not bring any improvement compared to the baseline situation with the governance structure and the measures themselves remaining largely untouched. Acceptability by the industry is likely to remain low as currently is the case.

The baseline situation (option 1) is already perceived by the industry (and Member States) as supporting a level playing field across EU fisheries since the current regulations promote uniform application of technical rules to all fishing vessels. This has been widely acknowledged by all Member States authorities and representatives of the industry met in the frame of this evaluation. Options 3 to 5 are also expected to support uniform application of rules as a result of the Member States and Commission roles and responsibilities in the regionalisation process as defined in Art. 18 of the reformed CFP.

7.1.5 Summary

The following graph summarises the scoring of the different options against the effectiveness, coherence (internal and external) and acceptability criteria.

0

1

2

3

4

5

6

7


Scoring Acceptability

Involvment in the decision making process

Perceived benefits of technical measures

Level playing field across EU fisheries


Figure 10 : Scoring of the performances of the different options compared to the baseline situation against the effectiveness, coherence and acceptability criteria

The comparison of the options indicates clearly that option 2 does not correspond to the needs identified during the ex-post evaluation of the technical measures regulations, and lacks coherence with the objectives of the CFP. This option (or a similar approach) has already been proposed by the Commission65 in 2008 - without the added complexity of the landing obligation - and discarded on the basis that it did not necessarily solve the problems associated with technical measures.

Options 4 and 5 receive the highest scoring among the different options considered. They have similar performances in terms of effectiveness and coherence (both internal and external). The main slight difference between these two options is that option 5 considers a radical move to regionalisation of technical measures by Member States to meet overarching conservation objectives set by the EU with no default measures or safeguards in place. It potentially moves to a results-based management approach with few if any detailed rules either at Union or regional level. Option 4 on the other hand, although acting as a vehicle for regionalisation and also potentially allowing a move towards a results-based management framework, does include the provision for transitional measures while regionalisation evolves. Both options support dramatic simplification of the existing technical measures framework.

Option 3 also shows benefits in terms of effectiveness, coherence and acceptability compared to the baseline scenario. The main aspect undermining the overall relevance of this option is that part of the technical measures regulations - the common rules - will remain under the ordinary legislative procedure which has proved, according to the ex-post evaluation, not to be adapted swiftly to changes in fisheries and stocks and not necessarily creating an incentive for compliance. The overall performance of this option actually depends on what will be appreciated as common measures and placed in a co-decision act during the negotiation process of the reformed technical measures regulations, and what will be classified as regional measures and incorporated into Commission acts, which can be amended expediently. Option 3 also represents a level of simplification but retains a centralised top-down approach , and does not promote an objective-based management approach of technical measures by the EU.

65 Impact assessment SEC(2008) 1978 accompanying COM(2008) 324

0

5

10

15

20

25

30

35

40

45


Scoring

Acceptability

External coherence

Internal coherence

Effectiveness


7.2 In terms of the magnitude of the impacts on sustainability and administrative costs

The following table summarises the qualitative impacts of the different reform options of the technical measures regulations discussed sections 6.2 through 6.5. The following qualitative criteria are utilised to evaluate the impacts in the absence of quantitative criteria in relation with the nature of the intervention (change in governance framework for identifying / implementing technical measures as opposed to introduction of new technical measures):

Negative impacts compared to status quo Neutral impacts compared to status quo

Positive impacts compared to status quo


Table 13: Comparison of the impacts of the different options on sustainability and on the administrative costs against the baseline scenario

Option 2 Option 3 Option 4 Option 5 Economic impacts

Like the baseline scenario, this option does not support greater effectiveness of technical measures framework to address reduction of unwanted catches in the first place. Likely negative economic impacts to be expected in relation with (i) new conditions imposed by the landing obligation (possible earlier exhaustion of fishing opportunities mostly in the short term), and (ii) the MSY objective (level of fishing opportunities in the long term as a result of poorly efficient selective patterns of fishing gears)

Compared to the baseline scenario, this option may support flexible adoption of regionalised technical measures allowing the industry benefits from the long-term positive economic impacts resulting from the move to MSY, and in the short term with relevant tools to minimise unwanted catches of species subject to the landing obligation. Impacts of this option will depend to a large extent on what are considered as common measures under co-decision and regionalised measures subject to delegated acts.

As option 3, but with positive impacts supported by comprehensive regionalisation of technical measures compared to option 3

As option 4 In the absence of EU even minimal prescriptions on technical measures, economic impacts can be positive if Member States succeed to implement effective technical measures.


Option 2 Option 3 Option 4 Option 5 Social impacts

Inability to adapt technical measures to avoid unwanted catches may support earlier exhaustion of fishing opportunities with negative impacts on the number of jobs onboard EU fleet segments involved in demersal mixed-fisheries and related industries (short term and long term impacts) Handling of unwanted catches will contribute to worsen working conditions onboard the EU fleet segments involved in demersal mixed-fisheries currently showing high discard rates (short term). Similar impact on governance compared to the baseline scenario as a consequence of little use of regionalisation which includes mandatory consultation of Advisory Councils

Positive social impacts as a consequence of partial regionalisation of technical measures leading to implementation of potentially more effective technical measures that will support the industry to minimise unwanted catches. This option will contribute to protect the number of jobs as fishing vessels will be able to adapt to fishing opportunities (short and long terms) and to improve working conditions onboard (short term) compared to baseline scenario. Likely positive impact on governance with use of regionalisation. Impacts of this option will depend to a large extent on what are considered as common measures under co-decision and regionalised measures subject to delegated acts.

As option 3, but with positive impacts on employment, quality of employment and governance supported by comprehensive regionalisation of technical measures. Introduction of objective-based management will support adaptation to change Positive impacts on governance

As option 4


Option 2 Option 3 Option 4 Option 5 Environmental impacts

Like the baseline scenario, this option does not consider utilisation of the reformed CFP Art. 11 and consequently, does not efficiently support compliance with EU environmental legislation, in particular in offshore waters (areas within the EEZ and beyond territorial waters) The lack of flexibility of the technical measures governance framework under this option will probably undermine MS effort to meet objectives under MSF Directive descriptors 1, 4 and 6. MSF Directive Descriptor 3 will be reached anyway, but the rigidity of governance under this option may slow down the transition to MSY.

Compatibility of this option with Art. 11 of the reformed CFP will support compliance with EU environmental legislation by providing a more flexible governance framework for regional environmental measures. The governance framework considered under this option provides for more flexibility for MS to adopt environmental measures supporting MSF Directive descriptors 1,4 and 6, in particular where the issues to be addressed have a transnational dimension (in offshore waters). Improved flexibility of technical measures will also better support the move to MSY (MSF Directive descriptor 3) However, the impacts of this option will depend to a large extent on what is considered as common measures under co-decision and regional measures subject to delegated acts.

As option 3, but with positive impacts supported by greater regionalisation of technical measures compared to option 3 Full regionalisation of technical measures may also support better coherence of technical measures in contributing to each MSF Directive descriptors deemed to be impacted by fishing (descriptors 1, 3, 4 and 6).

As option 4


Option 2 Option 3 Option 4 Option 5 Administrative costs /

Little change compared to the baseline situation, with considerable ongoing enforcement costs to all parties because of both complexity and lack of acceptability of the technical measures framework.

Compared to the baseline situation, administrative costs in relation with control and enforcement may decrease as a consequence of better acceptability / compliance with partially regionalised measures. However, control and enforcement costs will not decrease significantly as this option keeps a set of prescriptive technical measures. Other administrative costs borne by MS authorities and the industry may remain largely the same.

The full regionalisation of technical measures foreseen under this option will support acceptability of the measures, and therefore increase compliance. Costs of enforcement and control are likely to decrease significantly. Administrative costs for Member States authorities and the industry may increase as the onus will be increasingly on demonstrating the impacts of technical measures rather than controlling and measuring gears at sea On balance, decrease in control and enforcement costs will largely offset other increases in administrative costs. At least in the beginning of the regionalisation process, costs for the scientific community for providing advices may increase as a consequence of multiple requests for revised technical measures

As option 4


Option 2 is likely to have similar economic, social and environmental impacts compared to the baseline situation. This is a logical consequence of the lack of effectiveness of this option in addressing the problem of avoidance of unwanted catches and of protection of the broader environment from interactions with fishing gears.

Options 3 to 5 are assessed to have comparable positive economic, social and environmental impacts compared to the baseline scenario. Option 3 has less benefit as this option is confined to a change in governance rather than a change in the measures themselves, over and above some simplification. In particular, it can be expected from these three options that the industry and the Member States will have the tools to adapt fishing practices to reduce catches of unwanted species subject to the landing obligation in the first place, and to ease the transition toward meeting the MSY objective. The possibility to adapt technical measures on a regional basis will probably benefit the most to fishing fleets involved in the beam trawls fisheries exploiting flatfish species and otter trawls targeting Nephrops and demersal fish in mixed fisheries environments in the North Sea and North East Atlantic. According to DCF economic data, these fleets represent approx. 3 500 vessels and 17 500 FTE for a turnover in the region of EUR billion 1.7 (44% of total turnover of the fishing fleet operating in the North East Atlantic and North Sea regions).

Regionalisation of technical measures under these three options will also provide Member States with a more flexible legal architecture to adopt environmental measures supporting objectives under MSF Directive descriptors 1 (biological diversity), 4 (food web) and 6 (seafloor integrity) in particular when the problems to be addressed have a transnational dimension requiring uniform application of specific rules (e.g. issues typically involving fishing fleets from different Member States outside territorial waters, or decisions emanating from international agreements like the relevant regional sea convention OSPAR). Options 4 and 5 which consider full regionalisation of technical measures and promotion of a move towards results based management are likely to produce more positive economic, social and environmental impacts than option 3 which retains to a certain extent a prescriptive approach.

Concerning administrative costs, option 2 is likely to incur similar costs as those incurred by the various stakeholders under the baseline scenario. Costs associated with control and enforcement of technical measures (estimated in the region of EUR million 165 per year66), including EUR million 112 for seaborne and airborne surveillance) are expected to decrease under option 3 to 5. The rationale is that with greater regionalization and simplification, technical measures will be better accepted by the industry. In addition as regionalisation allows for greater involvement in the decision-making process, and better complied with then there is a greater incentive for compliance. This may ease the control burden on Member States with possibility to decrease the effort for at sea monitoring of the fleet. In this respect, option 4 and 5 which promote regionalisation of technical measures may support decreases in enforcement and control expenses compared to option 3. By contrast, regionalisation and greater responsibility for managing fisheries transferred to Member States under options 4 and 5 may contribute to increased administrative costs, in particular (i) those associated with the negotiation of regional technical measures under the regionalisation framework established under Art. 18 of the CFP, (ii) documentation and monitoring costs associated with demonstrating that objectives and targets are being met, and (iii) costs associated with provision of scientific data and advice for the identification and evaluation of technical measures to be recommended under this regional framework. The increase in administrative costs under these headings will probably be offset by the expected decreases of control and enforcement costs. Costs are expected to be reduced over time as confidence and level of compliance increases.

66 Extracted from MRAG (2008). Costs estimates for Denmark, France, Ireland, Spain and the United Kingdom.


7.3 In terms of risks

The impacts of the different options compared to the baseline situation, as well as their effectiveness, coherence and acceptability are assessed assuming that the governance mechanisms considered under each option are fully used by stakeholders. This assumption is not free of risks, and the recommendation on the preferred option must integrate possible failures, and the extent to which they may affect the different options. Three main risk factors are considered below:

• The speed of regionalization. • The incentives for levels of compliance. • The level of administrative costs and burden.

Speed of regionalisation

According to recent experience in the EU, it can be expected that regionalisation will develop unevenly across the EU. In the North Sea and in the North East Atlantic, two ACs have demonstrated some capacity to develop proposals in support of the CFP, namely the North Sea AC and the North Western Waters AC. These two ACs have successful records of measures being proposed to the Commission and later incorporated in the EU legislation as Commission Acts or co-decision Acts. Under the new regionalisation framework, it can be reasonably expected that these two ACs will have sufficient impetus and rationale to develop additional proposals on adapted technical measures and submit these to groups of Member States formulating joint recommendations as envisaged under Article 18 of the CFP. Another regional AC, the South Western Waters AC has not demonstrated the same capacity so far, and regionalisation may be more difficult to implement in the waters under its competency. The horizontal ACs relevant for the North East Atlantic and the North Sea (the Pelagic AC and the Distant waters AC) have also demonstrated some capacity, and they can be expected to fully support the regionalisation process. In addition, concerning the Pelagic AC, its competency includes fleet segments that are not particularly in need of adapted technical measures (except for revision of existing closures). Concerning the Distant Waters AC, technical measures of relevance are largely those applied by the Coastal States in the waters of which the fleets operate or by the competent RFMOs, with little margin for adaptation under unilateral EU initiatives.

In addition to the capacities of the ACs to support regionalisation, the capacities of Member States to negotiate between them and adopt joint recommendations in this context are also a risk. For the North Sea, Member States having a direct management interest have already started to cooperate, in particular for joint control operations. Cooperation has been successful and has led the Member States to conclude a Memorandum of Understanding67 organising the modalities of the cooperation (executive, technical committees, etc.) which can be used for cooperation on management measures. In other regions, there is no such history of cooperation. For the North Western Waters and South Western Waters, the cooperation between Member States is still to be organised through a written agreement (MoU or anything else), and this may take time.

Regionalisation will also need additional scientific capacities. New technical measures that will be recommended under the regionalisation will need to be supported by scientific evidence and validated by the relevant scientific advisory bodies (STECF and/or ICES) before being approved by the Commission and applied through a delegated or an implementing act. Whilst EMFF funding in support of scientific research on selectivity will adequately support Member States research institutes (providing staff resources are available), the capacity of STECF or ICES to evaluate an increased number of regionalised technical and environmental measures is questionable. In 2012, STECF has already warned the Commission that there is a potential imbalance between the demands for future scientific advice and the availability of resources to adequately respond to those demands (STECF, 2012a). This potential imbalance is not attributable to financial resources (the budget allocation to the

67 Know as the Scheveningen Agreement (not in the public domain)


Commission for scientific advice is regularly underspent), but to a lack of human resources available. The potentially limited ability of advisory scientific committees to respond to requests for advice may particularly impact regionalisation during the first years when requests for advice will be the most numerous. Over time, the number of requests can be expected to decrease and become more in line with scientific capacities. This situation has already been experienced with numerous advice requested for exemptions under the cod plan (Council Reg (EC) 1342/2008) during the first two years, but significantly less later on.

In conclusion, it can be expected that the regionalisation process may take time to develop in certain regions. If this assumption is valid, the most affected regions will be probably the South Western Waters, followed by the North Western Waters to a lesser extent. Regionalisation could develop more rapidly for the North Sea region.

Slow development of regionalisation will have negative effects on the governance framework considered under option 5 in particular, as this option relies on regionalisation and minimal detailed technical measures. The consequences of delayed regionalisation under this option would be critical, in particular in the short term when there will be a high number of issues to address. If Member States cannot agree, then the Commission will have to propose corrective measures under the ordinary legislative procedures. Member States efforts to reach the Good Environmental Status under the MSF Directive may also be undermined under a situation where regionalisation does not work.

By comparison, the governance framework foreseen under option 4 will be less impacted by a delayed regionalisation. The main reasons are that this governance framework includes storage of existing technical measures in an annex to the framework regulation as a fall-back position. Similarly, option 3 will be also less impacted by delayed regionalisation as this option considers a redistribution of existing technical measures between common measures and regional measures.

The incentives for level of compliance

The assessment of the impacts of the different reform options compared to the baseline situation are based on the assumption that technical measures under regionalisation will be more accepted by the industry and therefore compliance will increase.

As outlined in the previous sections, the acceptance of technical measures is largely based on a perception of a level playing field across EU fisheries. The potential for regionalisation to end up with different technical measures across regions may contribute to a weakening of the perception of a level playing field and remove the incentives for compliance.

One potential risk factor is cross-boundary effects. The map below shows the administrative limits of the different regions as per annex III of EP/ Council Reg (EC) 1380/2013. Under regionalisation it can be anticipated that technical measures adopted will not be the same, and may even involve different measures to meet the objectives of different multiannual plans in adjacent regions. For the fishing fleets operating near the boundaries of the region, and exploiting stocks whose distribution overlaps the limits of the region (e.g. saithe, hake, Eastern Channel / North Sea cod, or plaice which migrates to the Eastern Channel from the North Sea and Western Channel to form spawning aggregations), different technical measures may undermine the perception of a level playing field, and hence, incentive for compliance. This perception of different standards of enforcement and implementation can be further exacerbated if the stock situation worsens. Under such a scenario, responsibilities for failing to meet objectives may be difficult to identify and may underpin conflicting situations between the regions.


Figure 11: Map showing the boundaries between the regions under competency of the Advisory Councils as defined in annex III of EP/Council Reg (EC) 1380/2013.

The likelihood of creating a disincentive for compliance is riskiest under option 5. In the absence of even minimal EU prescriptions on technical measures, the different regions will be free to develop their own technical measures providing they contribute to the objectives of the multiannual plans. If technical measures are felt by the industry to be too strict in a region and more relaxed in an adjacent region, the perception of a level playing field will be undermined. The risk is higher in the short term as cooperation between regions may take some time. Over time, success stories in particular regions and increased exchanges of good practices will contribute to smooth out the differences in approach of rules on technical measures.

Option 4 is less exposed to this risk. The governance framework considered under this option includes inter alia some basic standards such as reference gears, selectivity baselines, or exploitation patterns adopted through co-decision and applicable to all regions. These minimum objective-based requirements will limit the possibilities for the regions to adopt technical measures that are too different from one region to another.

The governance framework under option 3 is even less exposed to this risk as the starting point will be the current technical measures regulations that can be adapted to the regional context only if they are no less stringent than those existing in EU legislation.

NS AC / NWW AC

NS AC / NWW AC

SWW AC / NWW AC


The level of administrative costs and burden

The assessment of the impacts of the different options on administrative costs assume that options 4 and 5 may contribute to a decrease in control and enforcement costs based on the assumption that regional technical measures adopted under regionalisation will be simplified, more streamlined and better complied with by the industry. Whilst the administrative costs for Member States and research costs for defining regional measures may increase under these two options, on balance, option 4 and 5 may support a reduction of overall administrative costs. By contrast, options 2 and 3 which largely retain the top down prescriptive management approach of the baseline scenario are not expected to decrease the need for intensive monitoring of the fishing fleet at sea.

However, all of these costs will also be determined by the extent to which under options 4 and 5 regionally agreed technical measures might be (i) made more numerous and complex thereby increasing control and enforcement costs, or (ii) reduced in number with a stronger reliance on input and output management measures to achieve the results-based performance envisaged, i.e. under option 5 it is also possible that there would be far few technical measures in place. In addition, if regional measures are not well accepted by the industry because of a perception of an unlevel playing field across fisheries, needs for more intensive monitoring at sea could contribute also to an increase in control and enforcement costs.

Whilst both options 4 and 5 are exposed to this risk, it can be estimated that option 4 will be less exposed than option 5. Option 4 retains minimum EU requirements for regional measures which will support adoption of streamlined technical measures under regionalisation. Option 5, which is the most relaxed option and allows potentially for limited need of detailed rules, which will reduce the need for control at sea and provide the catching sector with limited rules to comply with but will increase the administrative burden on the catching sector and the Member States to demonstrate that objectives are being met. It very much represents a shift in the burden of proof.

7.4 Conclusion: the preferred option

Option 2 does not provide any substantial benefits in terms of effectiveness, coherence and acceptability compared to the baseline scenario and should be discarded. This option will not increase the effectiveness of technical measures to reduce unwanted catches or minimize environmental impacts, does not provide any incentives for fishermen to comply and does not reduce the administrative costs for national authorities or administrative burden on the catching sector.

Option 3 offers some benefits compared to the baseline situation. The major drawback of this option is that it only partially provides the Member States and the industry with the tools and management structure to respond to the main aims of CFP policy (e.g. MSY and the elimination of unwanted catches) with targets or goals which clearly follow from the objectives (e.g. Fmsy, minimum conservation reference size). Given the impetus given by the reformed CFP, it could be counterproductive to keep detailed rules in place. In addition, the process will still be very much Commission led and therefore not fully coherent with the CFP. This option would also most likely result in a reduction in administrative costs on Member States or administrative burden on the catching sector.

Options 4 and 5 would appear to be the best options. They address the shortcomings of the current technical measures regulations in terms of effectiveness, coherence and acceptability compared to the baseline situation. These two options are also likely to produce positive impacts on sustainability of exploitation, and to contribute to a decrease in administrative costs and burden, with positive impacts on simplification and increased acceptability of technical measures by the industry because of their greater involvement in their specification. The qualitative assessment of the impacts of these two options does not allow for the clear selection of a preferred option, as the evaluation of their respective performance compared to the baseline situation suggests very similar impacts.


However, consideration of the risks associated with these two options supports the identification of option 4 as the preferred option. As outlined in section 7.3, option 4 is less exposed to a risk of delayed regionalisation compared to option 5. Not least because it is a new CFP development that will need to be incorporated in current fisheries and environmental management practices, regionalisation as envisaged in the new CFP will probably take time, in particular in regions where there is little previous experience of co-operation at Member State level (i.e. South Western Waters, and North Western Waters to a lesser extent). The risk of delayed regionalisation will be high in the short term (3-4 years), but over time, with experience and exchanges of good practices between regions, it can be expected to decrease. Similarly, the minimum EU requirements for technical measures considered under option 4 and not included under option 5, will contribute to lower short- and long-term risks stemming from lower incentives for compliance by the industry. For these reasons, option 4 is also expected to better drive a reduction in administrative costs and burden compared to option 5 in the short to medium term.

Option 4 is therefore the preferred option in the short term. Option 5 could however be seen as a viable option in the longer term when Member States and the industry have full use and understanding of regionalisation.

8 Monitoring and evaluation

The following indicators are proposed to monitor the effectiveness of the reformed technical measures regulations:

• Evolution of catches of fish species under the minimum conservation size (from DCMAP): indicators describing the amount of fish species caught under the minimum conservation size can be used to monitor improvements of the selectivity properties of fishing gears. If fishing practices are more selective as a result of the reformed technical measures regulations, this indicator can be expected to decrease over time. However, natural variations in recruitment may introduce some bias.

• Evolution of the exploitation pattern (from landing declarations) : when the landing obligations will be fully implemented, it will be possible to estimate the ratio between landings of fish under the minimum conservation size and the total landings. According to STECF (2013b) this indicator may be used as a proxy for the exploitation pattern. If the reform is successful, the ratio should decrease over time. As above, this indicator may be biased by natural variations in recruitment.

• Number of stocks at MSY (from ICES advice) : this indicator can be used to monitor the adaptation of technical measures towards relevant exploitation patterns. However, this indicator will also be largely impacted by the exploitation rate, i.e. the fishing possibility granted by the Council to Member States.

• Compliance : evaluation of compliance levels with technical measures rules can be used to monitor acceptability of the reformed technical measures framework by the industry. Relevant indicators on infringements to technical measures rules can be obtained from the reports of Member States to the Commission considered under Art. 118 of Council Reg (EC) 1224/2009 (to be submitted every five years), or from the reports on the implementation of joint-development plans produced by the European Fisheries Control Agency. Identification of relevant indicators from both sources could be established through cooperation between Commission’s services and the Agency.

• Administrative costs and burden : the measure of the evolution of administrative costs and burden would be useful to verify if the reformed technical measures framework achieves the expected reductions. At this stage, it is not possible to propose any source of information as


experience shows that Member States have different methodologies to monitor administrative costs, in particular control and enforcement costs when the surveillance function is shared between different National administrations. As above, the European Fisheries Control Agency could support the definition of a common methodology, as it did for evaluating the costs of control of certain joint development plans. Nevertheless, even if a relevant methodology is developed, it will be difficult to allocate a share of administrative costs and burden attributable to technical measures rules, as administrative costs and burden variations can also be triggered by Member States obligations for other rules of the CFP such as the landing obligation.

Concerning review mechanisms, an interim evaluation of the reformed technical measures framework by the end of 2018 would be useful to assess the impacts of the reform and provide for corrective measures if needed. An ex-post evaluation of the technical measures regulations scheduled for the end of 2020 to coincide with the target in the MSFD of reaching good environmental status and also in the run-up to the next reform of the CFP foreseen in 2022 as per Article 49 of the CFP. This will help to provide indications on the performances of technical measures in delivering on the objectives of the CFP. It should be also noted that STECF will continuously assess the effects of new technical measures.

Between these proposed milestones, a review of annual Commission’s report to the European Parliament and the Council on the progress on achieving maximum sustainable yield and on the situation of fish stocks (Art. 50 of EP/Council Regulation (EU) No. 1380/2013) will be useful to evaluate if technical measures have contributed to stock conservation, and identify corrective measures if needed.

The review of the Control Regulation (Reg (EC) No. 1224/2009 scheduled for 2015 will also provide evaluations of the applicability and controllability of technical measures with useful recommendations for a new framework of technical measures regulations.

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