sou · GYB342 · 2010-06-23 00:00:00 — There is at present an exception to the limitation on gear to six items for lobster traps, with each person now being permitted to use 14 traps. Reports have, however, shown that this generous exception has led to a situation where around of lobster fishing is done by recreational fisherman. This is unfortunate for small-scale commercial fishing on the . It should also be borne in mind that in future under the EU Control Regulation there will be a ban on the sale of fish and shellfish caught by recreational fishermen. This means, in my view, that recreational fishing for lobster is likely to decrease, as it will only be permissible to fish for ones own use. Six lobster traps per person should, in my view, meet the need for recreational fishing for lobster for one's own use. I therefore propose that the exception for lobster which now applies should be removed. It has also been drawn to my attention that there is a problem with fishing for crayfish in public waters under the existing Fishery Act. argued in Report 1992/93:JOU23 Fishery Act etc. that fishing for crayfish in public waters in Lakes , , and in ought to be reserved for commercial fishing. However, no such provision was introduced into the Fishery Act. On the other hand, it follows from Chapter 2 Section 8 of the Fishery Ordinance that may, if necessary, specify that fishing for crayfish in public waters in Lakes , , and in may only be carried on with permission from the Board. Permits are primarily to be issued to those who engage in commer- cial fishing. However, the situation regarding fishing for crayfish has changed since the earlier Fishery Act came into existence. Availability of crayfish is now good. There is therefore, in my view, no reason to reserve this type of fishing for commercial fishermen. I therefore propose that the possibility of making fishing for crayfish in these waters subject to a permit be removed. In so doing I bring about uniform regulation of recreational fishing which in future will also cover lobster and crayfish. Those who carry on fishing tourism will continue to be included in the category of recreational fishermen. However, I consider it wrong that recreation-based restrictions on gear should apply to this cate- gory. Tourist activity promotes enterprise, growth and employment and can contribute to communities alive. I therefore propose that fishing tourism should have access to the necessary quantity of fishing gear. I am also of the opinion that the EU ban on sales does not pose an obstacle to carrying on fishing tourism. Private waters, as previously, should be at the disposal of property owners or owners of fishing rights. The latter should in future con- tinue to be able to engage in recreational fishing in their waters without restrictions on gear. Owners of fishing rights have previous- ly been able to carry on commercial fishing in their waters without being required to hold a licence. I must, however, propose that permits be required in future for commercial fishing with at sea, as this has long been a mandatory EU requirement. Other com- mercial fishing can, however, be freely carried on by the property owner/owner of fishing rights. I retain the extensive public right to fish in private waters prin- cipally unchanged. To clarify what is already considered to apply, I add that restrictions on gear apply to recreational fishing and that commercial fishing is conditional on a fishing licence. The giant Pacific oyster, however, will no longer be reserved for the property owner/owner of fishing rights. For the same reason as for recrea- tional fishermen in public waters, I extend the public right to fish not just to Swedish citizens but to other EU citizens as well. The provisions on hand-held gear are particularly unclear in the Fishery Act, as fishing with hand-held gear in private waters has been part of the public right to fish. To clarify what applies, I have therefore regulated fishing with manual gear separately in my pro- posal. Everyone, as previously, has the right fish with hand-held gear in public waters and in private waters along the coasts and in Lakes , , , and in . On the southern part of the and in the lakes, fishing with hand- held gear is a source of conflicts. To reduce these conflicts, I propose that fishing with hand-held gear there should not comprise more than two items of fishing gear. As previously, the fishing method as such employed there must not require the use of a boat or consist of fishing with the fishing rig known as an 'angeldon'. Simpler permit requirements for commercial fishing There are several different permit requirements today to carry on commercial fishing. Firstly a commercial fishing licence is required to carry on commercial fishing. These permits are granted by only be issued to physical per- The purpose of the commercial fishing licence is to preserve the fish resource for a limited number of commercial fishermen, guarantee attachment to and take account of regional aspects. Restriction of the number of commercial fishermen is now achieved through a requirement that the fishing has to be of essen- tial significance to supply. This requirement has been set at a net amount of 000 per year. In addition, the requirement for a commercial fishing licence contains requirements on rejuvenation of the fishing profession and gender equality aspects. In addition, there is a requirement for permits. This is an EU requirement. This too is granted by . The significance of the requirement is that the with a maximum length of five metres or more may only be used for commercial fishing at sea with a permit from . The requirement for permits is also intended to guarantee that the resource is reserved for a limited number of com- mercial fishermen and ensure attachment to and considera- tion of regional policy aspects. In addition, the requirement is in- tended to comply with EU legislation on entry to/exit from the fishing fleet. The Member States are obliged to adapt the fishing capacity of their fleets so that a stable and sustainable balance is achieved between this fishing capacity and their fishing opportuni- ties. Physical persons and legal entities The problem with this dual legislation is that although the require- ments are partially identical they are formulated differently. To simplify, I propose that there should only be one fundamental per- mit requirement. Having two different permit requirements which overlap is too complicated. I combine the two permit requirements into one and give this the name fishing licence. The holder of the permit may be a physical person or a legal entity. The permit must not contain more requirements than necessary. The requirements on rejuvenation of the fishing profession and gender equality aspects, for example, are omitted. The most important issue, however, is who is to be allowed to carry on commercial fishing. Access to the fishing resource follows from definition as a commercial fisherman. In return, legislation in future will lay down requirements relating for example to knowledge. It is important that a clear dividing line is retained between commercial and recreational fishing. A decisive difference that already exists in the regulatory system, but in legislation other than the Fishery Act, is in tax law. Business activity is defined in Chapter 13 Section 1 of the Income Tax Act (1999:1229) as gainful employment carried on professionally and independently. This means that there is already a functioning system that distinguishes commercial fishing from the hobby activity. There is also already an authority (the ) which does this appraisal and in addition provides those who carry on the pro- fessional activity with a certificate if the outcome of the appraisal is positive, namely the corporation tax certificate (F-skattesedel). My basic position is that the same ought to apply to commercial fishing as to other professional activity. I propose that anyone wishing to carry on commercial fishing should have to hold a corporation tax certificate. This would replace the previous income requirement. Permits and freedom of trade As well as a commercial fishing licence and permit, commer- cial fishermen today need a third permit, the special permit. The re- quirements for these special permits today are not contained in the Fishery Act or Fishery Ordinance but in regulations. Special permits are used in two typical cases: to allocate EU quotas and also to allocate unregulated fishing. Many fish species are subject to EU quotas. These quotas are allocated through the special permits. The criteria for quota allo- cation are based on historical fishing. This means that someone who has previously fished most receives the largest allocation. In addition, special permits are required for other commercial fishing, that is to say fishing not subject to EU quotas. The reason for this relates to both resource allocation and fishery conservation considerations. A commercial fisherman wishing to fish in a particular area must have a special permit to do so. In that way is able to ensure that too many fishermen do not fish within an area. If everyone who wanted to carry on commercial fishing in the area were to do so, fishing would become unprofitable for every- one, which would in turn lead to fishing. Commercial fisher- men wishing to fish every year must instead apply for a special permit. If, for example, 50 fishermen wanted to fish and applied to be allowed to fish, permits would only be granted to such a number that fishing is estimated to be profitable for them and justifiable from the point of view of fishery conservation. Those who are prin- cipally granted permits are those who are able to show that they have carried on the same fishing in the previous year. I have fundamental doubts over whether the fishing fleet should continue to be so strictly regulated. I consider the individual com- mercial fishermen in fact to be better suited to assessing whether his fishing can be sustainably profitable than a government agency. At the same time I am well aware that a change-over from a strictly regulated industry to a more market-adapted one may have severe consequences, which might have a serious impact on fishery con- servation. Another problem is that free market forces have been weakened by various subsidies. My conclusion is, therefore, that as fishing represents a limited resource it is necessary for fishing capa- city to be limited. However, the situation outlined above does not only have political dimensions but also formal aspects. Under the Instrument of Govern- ment freedom of trade applies in . I have analysed what this may signify for fisheries. The conclusion I have reached is that fishery conservation factors and regional considerations may limit freedom of trade. On the other hand, it is incompatible with the Consti- tution to limit the right to fish in order to guarantee that profita- bility for certain commercial fishermen will be acceptable. The principle of equality is an element of freedom of trade, and signifies that no one may be financially favoured at the expense of anyone else. It is not permissible to introduce rules which mean new business set-ups in a particular industry or a particular profession are pre- vented as this represents protection for those whose businesses are already established. On this basis I propose that the competent authority should take account of fishery conservation and regional policy aspects in parti- cular in allocating fisheries. The authority must obviously analyse in depth what effects far-reaching fishery conservation measures have for commercial fishing. As follows from the introductory section of the law, a balance must be struck so that the competitiveness of commercial fishing is not adversely affected. The competent authority therefore has to have far-reaching powers which make good fishery conservation possible. It must also be able to issue all the regulations required by the EU. Fishing in by tradition is highly varied in geographical terms. However, I consider there to be a need for a nationally coherent law which is possible to understand. At the same time, it is crucial, in my view, to have expanded consultation between users, stake- holders and authorities. Fish management today is a conflict-ridden area, and there are commonly different views on the situation regarding fish stocks. A common view is required on those problems that need to be resolved. Expanded consultation can contribute to the emergence of such a common view. Such consultation would need to have a regional con- sensus. I propose that regional councils should be attached to the competent authority containing representatives of affected authori- ties and stakeholder organisations. The task of the councils would be to assist the authority in addressing regional issues. to fish with hand-held gear An important task would be find voluntary solutions for fishery conservation in those areas where the right to fish with hand-held gear is exercised. I do not see any of solving the economic problem with recreational fishing with hand-held gear and fishery conservation. There is already a significant basis for the Government to propose a general fishery conservation charge, for example. I therefore propose voluntary solutions. I know that there is interest in fishery conservation and charges among all the parties concer- ned, for example the Anglers and the . My view is that the regional councils could, to a great extent, represent a platform for voluntary, regional agreements without the support of legislation. Experience of such successful measures could, in the longer term, form the basis for legislation. It has been stated by that five regional councils could reflect the different regions of . The penal provisions in the Fishery Conservation Act I have identified blanket penal provisions in the Fishery Act. A blanket penal provision is a penal provision which does not, on its own, contain all the information needed to decide what is a crimi- nal offence but is supplemented by reference to other rules. Under a Supreme Court judgment, NJA 2005, p. 33, the Instrument of Government does not always permit blanket penal provisions with imprisonment in the scale of penalties to be supplemented by regu- lations issued by government agencies. What is not permitted is for the act which is punished to be fully or substantially described in authority regulations. Such a blanket penal provision is not permitted. The background to the Supreme Court judgment is the fundamental idea that the individual citizen has to be protected against being deprived of his or her . It is therefore important that the individual can easily assess what behaviour can lead to a custodial sentence. The penal provisions in the Fishery Act which impose penalties under EU Regulations are also worded as blanket penal provisions. EU Regulations are directly applicable in . This means that they are not to be recast or incorporated into the text of a Swedish statutory instrument. On the other hand, EU Regulations do not contain any penal provisions and assume that certain forms of beha- viour will be punished under national law. To enable EU Regulations to be subject to penalties under Swedish law, the penal provisions must be worded as blanket penal provisions. The penal sanctions relating to EU provisions in the Fishery Con- servation Act will therefore have to be worded as a blanket penal provision. To increase clarity, I propose that a new provision be in- troduced into the Fishery Conservation Act which states that the Government or the authority designated by the Government in regu- lations must list which EU Regulations are referred to. Most of the national detailed regulations on fisheries are issued by collated in the Board's Code of Statutes. This is an arrangement which is reported to work well and which I wish to retain. is anything different possible in practice with regard to fishing regulations. This necessitates wording the penal provisions as blanket penal provisions. Such penal provi- sions, in order to be compatible with the Constitution, must not contain imprisonment in the scale of penalties. The scale of penalties must therefore be amended for this to be possible. Remove imprisonment from the scale of penalties Non-permitted blanket penal provisions are thus a problem in the Fishery Act. Another problem with the penal provisions in the Fishery Act is that they are obscure and variable. The same penal provisions may, for example, have different scales of penalties depen- ding on where the contravention occurred. To resolve the problems I have identified, I propose that the scale of penalties for fishing offences should no long contain imprison- ment and should solely consist of fines. The amended scale of penal- ties should apply both to contraventions of national provisions and contraventions of EU Regulations as well as obstruction of inter- national fisheries control. This would contribute to simplification and uniformity and facilitate the work of those charged with im- plementing the law. As far as I have been able to ascertain, imprison- ment has, in addition, never been handed down as a sanction for a fishing offence. Under my proposal for the removal of imprisonment from the scale of penalties it would become possible in accordance with the rules contained in the Instrument of Government on standard setting for to supplement the blanket penal provision with its regulations to the same extent as happens now. This proposal thus solves the problem of the non-permitted blanket penal provisions. The proposal for removal of imprisonment from the scale of penalties also solves the problem of different scales of penalties. is bound by the United Nations Convention on the of the Sea, according to which the scale of penalties for offences com- mitted in exclusive economic zone is not allowed to include imprisonment. There are therefore exceptions to the principal rule for such offences in the Fishery Act. I do not consider such a dif- to be reasonable. The removal of imprisonment from the scale of penalties creates a regulation which is clear and uniform, as the scale of penalties will be the same whether the offence is com- mitted in the Swedish exclusive economic zone or in other waters. My proposal for the removal of imprisonment is justified solely by the endeavour to create clearer and more uniform regulation and by the need for the penal provisions to be constitutional. The inten- tion behind my proposal is not to lower the penalty value of offences. On the contrary, it is to be possible in practice to impose stiffer penal sanctions than happens today. I therefore propose that the scope for standardised fines be broadened and that the basis for calculation of these fines be tightened up. The proposal in my opinion entails improved opportunities to fulfil EU requirements for tougher sanc- tions for serious infringements of common fisheries policy. My intention is a general tightening of penalties for fishing offences. To improve fishery control, it should be possible for negligence which is not gross also to lead to criminal liability in the case of EU regulations on the Common Fisheries Policy. This would also contribute to uniformity, as it already applies to contraventions of national provisions. I have also added a number of types of behaviour to the penal provision on EU rules. This has been done primarily on the basis of Regulation (EC) No 1005/2008 establishing a Com- munity system to prevent, deter and eliminate illegal, unreported and unregulated fishing (the IUU Regulation), but also on the basis of the new Control Regulation (see below under the heading of Control Regulation). Offences committed in business activity should be penalised by imposition of standardised fines I propose that a special provision be introduced for certain offences committed in business activity. The provision on gross contraven- tions is placed here. Gross offences will therefore only be offences committed in commercial fishing. The sanction for offences com- mitted in commercial fishing if the offence relates to activity which involves use of fishing with engines must be standardised fines, and this applies to both simple and gross offences. Standardised fines mean fines which are determined solely according to a special basis of calculation indicated for the offence; in the Fishery Con- servation Act this is related to the number of kilowatts of engines on the . The level of the fine is therefore higher in the case of large engines than small ones. My proposal in this area means that the scope for standardised fines is expanded in relation to the Fishery Act and that the basis of calculation for such fines is tightened. The rules are clarified by specific statement of what is applicable to the calculation of penalties for a gross offence. The broadening of the standardised fines means that penalties can be given the desired strict- ness in those situations where this is most needed and can contri- bute towards fulfilling the EU requirement to adopt a more stringent approach to fishery offences. Obstruction of enforcement and control to be made a criminal offence I propose that a new penal provision be introduced which specifies penalties for obstruction of enforcement and control. Introduction of the provision signifies some expansion of the area of criminal liability. In this way shows that it takes a serious view of contraventions and that it is very important that those who exer- cise control and enforcement are given an opportunity to carry out their work as well as possible. A new provision should be introduced into the new Fishery Conservation Act which makes searches of premises possible even if the sanction for the act committed can only consist of fines. The provision on searches of premises in the Code of Judicial Procedure is only applicable if the scale of penalties contains imprisonment. Expansion of confiscation and forfeiture The provision on confiscation in the Fishery Conservation Act principally corresponds to that in the Fishery Act. However, I re- introduce the possibility of confiscating fishing gear which has been deployed in water and used to commit offences contrary to the Act. My proposal also means that the provisions on forfeiture are amended so that it is clearly apparent that forfeiture of fish can take place not only in the event of offences consisting of illegal fishing but also in the case of other offences contrary to fishery regulations. This contributes to heightening the response to a com- mitted offence. The most serious contraventions should be returned to the criminal system The system of sanction charges is relatively new and is said in the main to work well. It has therefore in principle been transferred to the Fishery Conservation Act unchanged with one important dif- . It has emerged in application of the provisions that some offences which are to be regarded as serious have come under the system of sanction charges. The consequence of this has been that certain serious offences can only be penalised by payment of a charge. This is not acceptable. To deal with this, I propose a solution where- by the serious contraventions of common fisheries policy which today are subject to payment of a sanction charge be returned to the criminal system. It should be possible for fishing licences to be revoked for offences committed in the activity to which the licence relates My proposal for a Fishery Conservation Act, just like the Fishery Act, contains a provision enabling a fishing licence to be revoked, both permanently and for a particular period of time.