# EUR-Lex - 52014PC0265 - EN

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# 52014PC0265

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL laying down a prohibition on driftnet fisheries, amending Council Regulations (EC) No 850/98, (EC) No 812/2004,(EC) No 2187/2005 and (EC) No 1967/2006 and repealing Council Regulation (EC) No 894/97 /* COM/2014/0265 final - 2014/0138 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Driftnet fishing has traditionally been
carried out with nets of limited lengths and relatively small mesh size to
catch different small/medium size pelagic species mostly living in or migrating
through coastal areas. More substantial problems began in the late 1970s and
1980s, when driftnets with large mesh sizes and net lengths of tens of
kilometres began to be used. These large-scale driftnets resulted in
significantly increased amounts of incidental mortality of protected species
including, in particular, cetaceans, sea turtles and sharks and lead to
international concerns about their environmental impacts.

In the early 90s, following specific United
Nations General Assembly (UNGA) Resolutions[1],
which called for a moratorium on large-scale pelagic driftnet[2] fishing on the High
Seas, the EU developed legislation on driftnets fisheries.

Consequently the keeping on board or use of
driftnets longer than 2,5 Km is prohibited in the EU since June 1992 (except in
the Baltic Sea, the Belts and the Sound). Since 2002 all driftnets, no matter
their size, are prohibited when intended for the capture of species listed in
Annex VIII of Council Regulation (EC) No 894/97 (unauthorized species).It is
also prohibited to land species listed in Annex VIII which have been caught in
driftnets.  Additionally, since 1 January 2008 it is prohibited to keep on
board or use any kind of driftnets in the Baltic Sea, the Belts and the Sound.

The current EU legislative framework on driftnets
has however shown weaknesses since existing rules are easy to circumvent. The
absence of EU rules on gear characteristics (e.g. maximum mesh size, maximum
twine thickness, hanging ratio, etc.)  and gear use (e.g. maximum distance from
the coast, soaking time, fishing season etc) combined with the possibility to
keep on board other fishing gears, made it possible for fishermen to illegally
use driftnets to catch species prohibited to be caught with this fishing gear,
while declaring that they have been caught for example with another gear (e.g.
longlines, etc).

Furthermore despite these provisions on
driftnets, the illegal use of driftnets continues to be reported in EU waters.
Serious non-compliance by some Member States has also been addressed by two rulings
of the European Court of Justice against France (C-556/07; C-479/07)
and Italy (C-249/08).

Control and enforcement efforts are not
producing the necessary results since the small scale nature of the activity
makes it easy to adapt and find strategies to escape controls. Small scale
driftnets are still allowed and the loopholes in the EU legislation facilitate
their illegal use. This makes it extremely difficult for control authorities to
have robust evidences of illegal activities and to finally enforce the rules.

Against this background, it is clear that
serious environmental and conservation concerns linked to the use of these
fishing gears still persist.

In order to address this situation and to comply
with EU international obligations to properly regulate driftnet fisheries, the
proposed Regulation, on the basis of a precautionary approach, stipulates a
full prohibition to take on board or use any kind of driftnets as off 1 January
2015 in all EU waters. It also introduces a revised and more comprehensive
definition of this fishing gear, to close any possible existing loophole.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

An Impact Assessment (IA) has been
conducted, taking into account information from different sources: a web-based
public consultation, two coordinated studies[3],
information provided by Member States and comments from the IA Steering Group
(IASG).

The IA has explored the following policy
options: 1) status quo; 2) actions on technical and/or control measures to
enhance controllability and environmental compatibility; 3) selected ban of
driftnet fisheries identified as being still most harmful to the strictly
protected species and/or not able to avoid by-catches of unauthorised species; 4)
total ban of driftnet fisheries.

However, the lack or poor monitoring of these
fisheries by Member States, both for control and scientific purposes, together
with  the limited sampling effort by the two studies made it extremely
difficult to have a comprehensive view on current fishing activities and their
actual environmental impact and it was therefore not possible to assess impacts
of the different policy  options through an indicator led analysis.

Options 4 has been preferred over the options
1, 2 and 3, as it satisfies to the largest extent the relevance, effectiveness,
efficiency and coherence criteria while providing the best result in terms of
environmental impact and less administrative burden. It is supported by more
than 52% of the respondents to the public consultation including fishermen
associations and NGOs. Thus option 4 has been retained as the most adequate, based
on the application of the precautionary principle towards fisheries which might
have a high risk of incidental takings of strictly protected species while
being poorly or not at all monitored by Member States.

The majority of the driftnet fisheries
identified are seasonal and the participating active fleets are comprised of
polyvalent vessels, totalling at least 840 vessels (excluding the Baltic Sea), dispersed over a wide area. For most of the fishers driftnetting represent
only a few months of fishing activity in any year with some fishers using
driftnets for less than half a month per year. Thus the total prohibition to
use driftnets is not expected to result in a corresponding reduction of fishers
which will continue to operate with other gears as already authorised in their
fishing licence. On the basis of the information collected for the impact
assessment the economic performance and importance of the gear for the vessels
and fleets is highly variable though limited at national level. For the fleets
where the data are available such as the UK vessels the total value of small
scale driftnets, for around 250 vessels, represent 0.14% of the total value of UK landings in 2011. For Italy, where a smaller number of around 100 active vessels has
been detected, the economic importance of  driftnets is low at national level
(0.8% in value and 1.3 % in weight of landing) though the value landed ranges from
around 20% to 55% (up to 90% in one fishery) of the turnover generated by these
vessels; however the profit generated by the use of driftnets is highly
variable ranging from 1 % to 54% of the turnover generated by the vessels, with
an average of 22% across all Italian driftnet fisheries. While it cannot be excluded
that the ban may affect some of the vessels carrying out these fisheries, the
overall  socio-economic impact of the total ban is therefore considered
irrelevant at national and sub-regional level.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

· 
Summary of the proposed action

Introduce a full prohibition to take on
board or use any kind of driftnets as off 1 January 2015, in all EU waters and
by all EU vessels. Introduce a revised and more comprehensive definition of driftnets,
to close any possible loophole in existing legislation.

· 
Legal basis

Article 43(2) of the Treaty on the
Functioning of the European Union.

· 
Subsidiarity principle

The proposal falls under exclusive
competence of the European Union.

· 
Proportionality principle

The proposal is necessary and appropriate
for the implementation of  the ecosystem-based approach to fisheries
management. The proposal does not go beyond what is necessary in order to
achieve the objectives pursued, in accordance with Article 5(4) of the Treaty
on European Union.

· 
Choice of instrument

Proposed instrument: Regulation of the
European Parliament and of the Council.

Other means would not be adequate for the
following reason: the act is repealing and amending existing Regulations, which
must be amended by another Regulation.

4.           BUDGETARY IMPLICATION

This measure does not involve any
additional Union expenditure.

2014/0138 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

laying down a prohibition on driftnet
fisheries, amending Council Regulations (EC) No 850/98, (EC) No 812/2004,(EC)
No 2187/2005 and (EC) No 1967/2006 and repealing Council Regulation (EC) No
894/97

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 43(2) thereof,

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[4],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Regulation (EU) No
1380/2013 of the European Parliament and of the Council[5] establishes a
management framework for the conservation of marine biological resources and
the management of fisheries targeting them.

(2)       Sustainable exploitation
of marine biological resources should be based on the precautionary approach,
which derives not only from the precautionary principle referred to in the
first subparagraph of Article 191(2) of the Treaty on the Functioning of the
European Union but also from the Union's international undertakings as
reflected in the United Nations Fish Stocks Agreement[6], and in particular its
Article 6, and on the best scientific evidence available.

(3)       The Common Fisheries
Policy should contribute to the protection of the marine environment, to
the sustainable management of all commercially exploited species, and in
particular to the achievement of good environmental status by 2020, as set out
in Article 1(1) of Directive 2008/56/EC of the European Parliament and of the
Council[7].

(4)       Following concerns about
the environmental impact of large-scale driftnets bigger than 2,5 km, that resulted
in significant amounts of incidental mortality of protected species, several
United Nations General Assembly (UNGA) Resolutions 44/225 of 22 December 1989, 
45/197 of  21 December 1990 and 46/215 of 20 December 1991[8] called for a moratorium
for these fishing gears.

(5)       Accordingly, Council
Regulation (EC) No 894/97[9]
establishes a management framework for the conservation of fishery resources
through technical measures in the form of a general overall length limitation
of driftnets to maximum 2,5 km, as well as a prohibition to use or keep on
board driftnets intended for the capture of certain species.

(6)       Moreover, Council
Regulation (EC) No 2187/2005 [10]
prohibits using or keeping on board driftnets from 1 January 2008 in the Baltic Sea, the Belts and the Sound.

(7)       The conservation
objectives, regarding incidental mortality of protected species,  pursued by
the abovementioned Union rules on driftnets are still valid and should be strengthened.

(8)       The definition of
driftnets should be refined for reasons of clarity and in order to ensure
uniformity in the understanding and implementation by Member States of rules on
driftnets.

(9)       Moreover it is necessary
to extend the scope of this definition so as to cover any newly identified
types of drifting fishing nets other than drifting gillnets developed in
certain fisheries. It is particularly important to cover by this definition
gears that unlike drifting gillnets  are made up of two or more walls of
netting hung jointly in parallel on the headline(s) yet they operate close to
the water surface in the same manner as drifting gillnets do and have similar
impact on marine resources, hence should be coherently regulated.

(10)     The current Union
legislative framework on driftnets has shown weaknesses and loopholes in that
rules proved easy to circumvent and ineffective in terms of addressing the conservation
concerns linked to this fishing gear.

(11)     The driftnet fishing is
carried out by an undefinable number of small-scale multipurpose fishing
vessels, the vast majority of which operating without any regular scientific
and control monitoring. Due to the small scale nature of these fishing
activities, which makes it easy to escape monitoring, the control and
enforcement efforts have not produced the necessary results in terms of
conservation of marine resources, in particular with regard to certain protected
species.

(12)     Illegal driftnet activities
carried out by Union fishing vessels, in particular for the purpose of
targeting species listed in Annex VIII of Regulation (EC) No 847/97, continue
to be reported and have been cause of criticism regarding the Union compliance
with applicable international obligations in this respect.

(13)     Moreover, the driftnet
fishing by operating close to or at the water surface continues to be cause of
high concern for incidental takings of air-breathing animals such as marine
mammals, sea turtles and sea birds, which are mostly classified as species to
be strictly protected under Union legislation.

(14)     Additionally, monitoring
and reporting systems established under Council Directive 92/43/EEC (Habitats
Directive)[11]
have proven to be not effective for the identification and recording of the
anthropogenic causes of death of strictly protected species due to fishing
activities.

(15)     The ecosystem-based
approach to fisheries management makes it a requirement that negative impacts
of fishing activities on the marine ecosystems be minimised and unwanted
catches be avoided and reduced to the extent possible.

(16)     In view of the reasons stated
above and in order to properly address the conservation concerns that this
fishing gear continues to cause, as well as to achieve the environmental and
enforcement objectives in an effective and efficient manner, while taking into
account the minimal socio-economic impacts, it is necessary to introduce a full
prohibition to take on board or use any kind of driftnets in all Union waters
and by all Union vessels whether they operate within Union waters or beyond, as
well as by non-Union vessels in Union waters.

(17)     For reasons of clarity of
Union legislation, it is also necessary to delete all other provisions related
to driftnets by amending Council Regulation (EC) No 850/98[12], Regulation (EC) No
812/2004, Regulation (EC) No 2187/2005 and Council Regulation (EC) No 1967/2006[13],  and repealing
Regulation (EC) No 894/97.

(18)     Vessels carrying out
fisheries with small-scale driftnets may need some time to adjust to the new
situation and necessitate a phasing-out period. This Regulation should
therefore enter into force on 1 January 2015.

HAVE ADOPTED THIS REGULATION:

Article 1

Scope

This Regulation shall apply to all fishing
activities within the scope of  the Common Fisheries Policy as set out in 
Article 1(2) of Regulation (EU) No 1380/2013.

Article 2

Definition

1.           For the purpose of this
Regulation the definitions set out in Article 4(1) of Regulation (EU) No
1380/2013 shall apply.

2.           In addition, a 'driftnet'
means a net made up of one or more walls of netting, hung jointly in parallel
on the headline(s), held on the water surface or at a certain distance below it
by floating devices and  drifting with the current, either independently or
with the boat to which it may be attached. It may be equipped with devices
aiming to stabilise the net or to limit its drift such as a sea-anchor or an
anchor on the bottom attached at one single end of the net.

Article 3

Prohibition
of driftnets

It shall be prohibited:

(a)     to catch any marine biological
resource with driftnets; and

(b)     to keep any kind of driftnet on board
of fishing vessels

Article 4

Amendments
of related Regulations

1.           In Article 20 of Regulation
(EC) No 850/98, paragraph 3 is deleted.

2.           Regulation (EC) No
812/2004 is amended as follows:

(a)     Article 1a is deleted;

(b)     in Annex I, points A (b) and E (b) are
deleted;

(c)     in Annex III ,  point D is deleted.

3.           Article 2(o), Article 9
and Article 10 of Regulation (EC) No 2187/2005 are deleted.

4.           In Annex II (a) of
Regulation (EC) No 1967/2006, the words "and drifting nets" are deleted.

Article 5

Repeal

Regulation (EC) No 894/97    is repealed.

Article 6

Entry
into force

This Regulation shall enter into force on 1
January 2015.

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                        For
the Council

The President                                                 The
President

[1]               United Nations General Assembly Resolutions:  44/225
of 22 December 1989;  45/197 of  21 December 1990; 46/215 of 20 December 1991

[2]               Large-scale driftnets were defined as nets over 2.5
Km in length under the Convention for the prohibition of fishing with long
driftnets in the South Pacific (Wellington Convention); Wellington, 24 November
1989) which entered into force on the 17th May 1991.   http://www.mfe.govt.nz/laws/meas/wellington.html;
 http://www.jus.uio.no/english/
services/library/treaties/08/8-02/large-driftnets.xml.

[3]               - MAREA-Specific contract 8 (SI2.646130).
"Identification and characterization of the small scale driftnet fisheries
in the Mediterranean (DriftMed)

- Specific contract 5
(SI2.650655). "Study in support of the review of the EU regime on the
small-scale driftnet fisheries".

[4]               OJ C , , p. .

[5]               Regulation (EU) No 1380/2013 of the European
Parliament and of the Council of 11 December 2013 on the Common Fisheries
Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009
and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and
Council Decision (EC) No 2004/585 (OJ L 354, 28.12.2013), p. 22.

[6]               OJ L 189, 03.07.1998, p. 16

[7]               Directive 2008/56/EC 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 (Marine Strategy Framework
Directive) (OJ L 164, 25.6.2008, p. 19).

[8]               United Nations General Assembly Resolutions
A/RES/44/225 of 22 December 1989 on Large-scale pelagic driftnet fishing and
its impact on the living marine resources of the world's oceans and seas, p.
147. United Nations General Assembly Resolution A/RES/45/197 of 21 December
1990 on Large-scale pelagic driftnet fishing and its impact on the living
marine resources of the world's oceans and seas, p.123. United Nations General
Assembly Resolution A/RES/46/215 of 20 December 1991 on Large-scale pelagic
driftnet fishing and its impact on the living marine resources of the world's
oceans and seas, p. 147.

[9]               Council Regulation (EC) No 894/97 of 29 April 1997
laying down certain technical measures for the conservation of fishery
resources (OJ L 132, 23.5.1997, p. 1) as amended by Regulation (EC) No 1239/98.

[10]             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 (OJ L 349, 31.12.2005, p. 1).

[11]             COUNCIL DIRECTIVE 92/43/EEC of 21 May 1992 on the
conservation of natural habitats and of wild fauna and flora (OJ L 206,
22.7.1992, p. 7)

[12]             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 (OJ L 125, 27.4.1998, p. 1).

[13]             Council Regulation (EC) No 1967/2006 of 21 December
2006 concerning management measures for the sustainable exploitation of fishery
resources in the Mediterranean Sea (OJ L 409, 30.12.2006, p. 11);