# EUR-Lex - 52012PC0498 - EN

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# 52012PC0498

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks /* COM/2012/0498 final - 2012/0236 (COD) */**

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EXPLANATORY
MEMORANDUM

1.         CONTEXT OF THE PROPOSAL

Council Regulation (EC) No 1342/2008 of 18
December 2008 establishing a long-term plan for cod stocks and the fisheries
exploiting those stocks calls for the performance of the management measures to
be evaluated in the third year of implementation of the plan. The Scientific,
Technical and Economic Committee for Fisheries (STECF) evaluated the plan in
2011. The STECF report stated that the cod plan has not achieved its objectives
and that they are unlikely to be achieved by 2015. Furthermore, the report
revealed that there are flaws in the design of the Regulation and problems with
its implementation. In the light of this advice and of the opinions received
from RACs and the Member States, the Commission is proposing an amendment to
the Regulation. The proposal for the amendment of the Regulation does not cover
all the problems identified since this amendment is intended as an interim
solution pending the development and implementation of a mixed-fishery plan for
North Sea fisheries as anticipated in the reform. Mixed-fishery plans represent
a novel approach and the scientific tools required to develop, evaluate and
assess the impact of such plans are not yet fully developed. At present, it is
anticipated that these tools will become available later this year. This will
then permit the start of the development and impact assessment process, through
a series of meetings involving scientists and stakeholders during 2013. Given
that mixed-fishery plans will involve trade-offs between fishing opportunities
for different stocks caught in the same fisheries, it is likely that further
consultation will be required to determine the final configuration of a North
Sea plan. This means that it will not be possible to table a North Sea mixed
fishery plan before 2014. The development of mixed-fishery plans for the other
areas where there are cod stocks covered by the current cod plan will take
longer, thus reinforcing the need for an amendment of the current cod plan
which will address the most pressing needs as an interim solution.

The main considerations justifying this
amendment are the following:

- The need to limit the scope in order
to avoid increasing the effort by using different calculation methods

By applying different methodologies for
calculating fishing effort when setting national baselines and when calculating
annual effort usage, some Member States have benefitted from higher levels of
fishing effort than the plan is meant to allow.

The amendment clarifies that whilst
different calculation methods are available, Member States must use the same
method to calculate their annual effort usage as the method they applied when
setting national effort baselines.

The proposed amendment is, therefore,
necessary to ensure that the plan works as intended. This will lead to an
improved management of the cod stocks and their long-term sustainability.

- The need to introduce flexibility

The TAC setting rules of the plan require
estimates of certain parameters describing the state of the stock, in
particular estimates of fishing mortality rates and stock biomass. In some
geographical areas there is insufficient information to apply those rules, so
the plan foresees automatic reductions of 25% in the TAC and effort in such circumstances.
What was intended to be a rule to be applied in exceptional circumstances has
proved to have become the norm in certain areas, which would lead within a few
years to the effective closure not just of the cod fisheries but also of the
other fisheries using the same gears in these areas. In some cases this is not
an appropriate response to the scientific advice. It is therefore important to
modify the rule about what to do in circumstances where the normal harvest rule
cannot be applied, allowing more flexibility to reflect the scientific advice
on a case by case basis.

Additionally, Member States and
stakeholders have expressed serious concerns about further effort reductions
and their social and economic impacts on the industry.

The amendment proposes a procedure for TAC and
effort setting in the absence of the necessary information to apply the normal
harvest rule. It proposes to take a case-by-case, and therefore a more
flexible, approach though remaining firmly based on available scientific advice.
This will ensure the possibility to pursue the fisheries whilst maintaining a
precautionary approach.

The amendment also proposes to allow
Council to decide each year whether or not to apply further annual fishing
effort reductions, once the fishing-effort baseline has been reduced for four
consecutive years. This aims to address concerns on the on-going nature of
effort reductions in light of its social and economic impact on industry.

- The need to clarify and to simplify
the procedure for applying Articles 11 and 13.

The procedure for excluding from the
fishing-effort regime those fishing activities that catch insignificant
quantities of cod has proved to be extremely cumbersome, creating a
considerable administrative burden and requiring constant recalculations of the
total allocated effort in order to avoid an increase in fishing effort by the
vessels that remain included in the effort regime. The amendment seeks to
simplify the procedure, first by fixing the final date for the submission of
any request to amend the effort baseline and secondly by making successful
requests generally applicable to all vessels satisfying the same criteria
without requiring Member States to submit separate requests. Some fleets that
are excluded would not qualify for exclusion in accordance with proposed
amendment therefore transitional measures are introduced.

A further simplification is proposed,
drawing from the enhanced accountability possible through the use of fully
documented fisheries, where all catches are counted against quota. The proposal
is to exempt vessels participating in fully documented fisheries trials from
the effort regime. The STECF has assessed this as an acceptable management
option.

The French version of Article 13(2)(b)
reads differently from other languages, causing different implementation of the
regulation. To ensure uniform implementation of this regulation, this provision
should be clarified and amended. The proposed version corresponds to the French
version, which is less restrictive in terms of implementation. Only vessels
that do not target cod and that comply with the 5 % catch composition rule
throughout the management period should be eligible for this derogation.

-The need to reduce cod discards

One of the main concerns with the current regulation
is that TACs have not constrained cod catches. This has resulted in a
considerable proportion of over-quota catches being discarded. In some
fisheries, Member State cod-avoidance and discard-reduction measures have been
partly successful in addressing this problem. But there is evidence of
considerable levels of discards in some fisheries where the Member States
concerned have not acted, even if action was suggested by the plan.

In the light of the Commission's proposals
to eliminate discards under a reformed CFP, and the large support for this
expressed both by Member States and many stakeholders, there is a need to
ensure that all EU legislation supports discards elimination rather than de
facto allowing it.

The amendment proposes to strengthen the
obligation on Member State to take action where data confirms high level of
discards in certain fisheries.

- The need to specify the level of
required monitoring and control

The derogations from the plan provided for
by Articles 11 and 13 represent a risk if not properly implemented. Poor
implementation could undermine the success of the plan. STECF assessed the
implementation of these derogations and pointed out the need to strengthen the
monitoring, and control as well as the requirement for full documentation as
basic justification for the derogation.

The proposal addresses this risk by
requiring Member States to assign a ‘very high risk’
level, as described in the control framework of the CFP, to those vessels
benefiting from the derogations. The proposal also requires Member States to
include adequate measures in their national control action programmes to ensure
compliance with the required conditions. These modifications specify existing
requirements and are applicable only if Member States use the derogation.

- The need to align with the Treaty on
the Functioning of the European Union

The cod plan pre-dates the entry into force
of the Lisbon Treaty. Given its continued application until it is replaced by a
new mixed-fisheries plan, its procedures need to be brought in line with the
decision-making provisions applicable since the entry into force of the Treaty
on the Functioning of the EU. The proposed amendment aligns the plan with the
new comitology procedures.

Accordingly, a draft proposal for amending
Regulation (EC) No 1342/2008 has been prepared.

The Commission is asked to adopt this
proposal as soon as possible, and to forward it to the Council and the European
Parliament.

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

The changes introduced by the amendment are
essentially those deemed necessary to implement the plan as originally
intended. The changes will reduce the administrative burden for the Member
States, the Commission and the scientific bodies charged with providing
appropriate advice.

The proposal has been drafted after
consultations with Member States and stakeholders. These consultations are
summarised in the table below:

STECF/ICES || Evaluation of the plan (open to stakeholders) Endorsed by the plenary || June 2011 July 2011

Commissions || Meeting with stakeholders on results of the evaluation and possible option for Impact Assessment || October 2011

Council || Member States strongly request to freeze the fishing effort and exclude vessels involved in fully documented fishery project from effort regime || December 2011

Commission || Meeting with stakeholders on possible improvements of implementation of the cod plan || March 2012

STECF plenary || Assessment of the preliminary options || April 2012

Bilateral meeting s with Member States || Attempt identify the specific problems of Member States || May/June 2012

STECF effort working group || Review of the functioning of the effort regime || June 11-15 2012

STECF working group on multiannual plan (with stakeholder participation) || Assessed modified options and advice on what would be needed to address the shortcomings indicated in the evaluation report to improve the performance of the plan. || 18-22 June 2012

COM workshop on fishing effort management || General || July 5 2012

3.           LEGAL ELEMENTS OF THE PROPOSAL

·
Summary of the proposed action

The main legal action is as far as possible
to improve and clarify the provisions of the Regulation (EC) No 1342/2008 that were
identified in the evaluation as problematic, in particular:

–
Changes to Article 4 aims at closing the
unintended possibility for Member States to deploy higher levels of effort than
the plan was meant to allow simply by changing the methods used for the
calculation of effort when establishing the baselines and when calculating usage.

–
In Article 9 a procedure for TAC setting in the
absence of the necessary information to apply Article 7 or 8. Instead of
automatic reductions of 25% it is proposed to take a case-by-case, and
therefore a more flexible, approach though remaining firmly based on available
scientific advice.

–
The former Article 11 is split into Article 11,
Article 11a and 11b. Instead of exempting groups of vessels specified by each
Member State, exemptions are now based on criteria that would be generally
applicable for any vessels that meet them, regardless of the Member State to
which they belong. The amended Article also avoids the need for constant
adjustments of the baseline by Council.

–
Transitional measures will ensure that vessels groups
already excluded will be subject to the criteria in force at the time of
exclusion.

–
A new Article 11c is introduced. Vessels
involved in the fully documented fishery trials, where all catches are counted
against quota, are exempted from fishing effort regime.

–
In Article 12(4) the changes are made on the
same grounds as for Article 9.

–
New paragraph 6 is introduced in Article 12.
This paragraph foresees the possibility for the Council to decide not to apply further
fishing effort reductions, once the fishing-effort ceiling has been reduced for
four consecutive years.

–
In Article 13 a rewording is made in order to
remove differences in interpretation between language versions. It is now made
clear that the condition that cod catch are less than 5 % of the total refers
to the catch composition over the management period, not per trip.

–
In Article 14 the Member State obligation to
address the discard issue is strengthened since it is not the case under the current
ruling, and level of control and monitoring is specified according to risk based
management.

–
Changes to Article 32 bring the Committee
procedure in to line with the rules of the Treaty on the Functioning of the
European Union and regulation (EU) No 182/2011.

·
Legal basis

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

·
Subsidiarity principle

The proposal falls under the exclusive
competence of the European Union.

·
Proportionality principle

The proposal amends measures which already
exist in Council Regulation (EC) No 1342/2008; accordingly, no concern with
regard to the principle of proportionality arises.

·
Choice of instrument

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

Other means would not be adequate for the
following reason: a Regulation must be amended by a Regulation.

4.           BUDGETARY IMPLICATION

This
measure does not involve any additional Union expenditure.

2012/0236 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Council Regulation (EC) No
1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and
the fisheries exploiting those stocks

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[1]

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       The scientific evaluation
of the performance of Council Regulation (EC) No 1342/2008 of 18 December 2008
establishing a long-term plan for cod stocks and the fisheries exploiting those
stocks[2]
carried out by the Scientific, Technical and Economic Committee for Fisheries
(STECF) has shown a number of problems with the application of that Regulation.

(2)       Member States have used
different methodologies to calculate effort during the reference years and to
calculate reported effort consumption within the plan. This has allowed a higher
level of deployed effort than intended by the plan, which should therefore be
rectified.

(3)       The lack of analytical
assessments in some geographical areas precludes the application of the harvest
control rules, resulting in an automatic 25 % annual reduction of TAC and
effort. Since the implementation of the plan, fishing-effort allocations for
the areas concerned have been reduced significantly. The scientific evaluation
carried out by the STECF suggests that in some cases it would be more
appropriate to use metrics other than fishing mortality for setting the TAC,
rather than automatic TAC and effort reductions.

(4)       The plan foresees scope to
exclude vessels whose activities do not contribute significantly to cod mortality.
To avoid that the effort associated with those activities is redirected to cod-fishing
activity, the baseline effort has to be decreased. To avoid the administrative
burden of constant recalculations of the baseline effort each time it is decided
to exclude certain activities, it is desirable to establish clear criteria for
exclusion, so that the baseline effort levels can be fixed definitively.

(5)       In order to facilitate
more selective fishing activities in the fully documented fisheries where all
catches are counted against quota, it is appropriate to exempt the vessels,
when participating in those trials, from the fishing effort regime.

(6)       Allocations of the maximum
allowable fishing effort have been significantly reduced for the main cod catching
gears since the entry into force of the plan. This may have a significant
economic and social impact on the fleet segments that use the same gears but
which fish principally for species other than cod. To address those social and
economic issues a mechanism to suspend further fishing effort adjustments
should be introduced.

(7)       As a certain language
version of Article 13(2)(b) reads differently from the other versions, it is
necessary to amend the text of that provision in order to ensure its uniform application.

(8)       Given the high levels of
cod discards that have been observed during the period of implementation of the
plan, it is necessary that Member States take appropriate action to minimise
discards, inter alia by allocating their fishing opportunities amongst
vessels in such a way as to match quotas to expected catches to the greatest
degree possible.

(9)       The derogations from the
plan provided for by Articles 11 and 13 represent a risk for the success of the
plan if they are not properly implemented. An assessment of the implementation
of those derogations revealed the need to strengthen the monitoring, control
and full documentation requirements which justify them. Considering that Union fisheries
control framework is risk based, a specific "very high level" of risk
should be assigned to activities under derogations.

(10)     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[3] repealed a number of Articles
of Regulation (EC) No 1342/2008 that referred to Annexes II and III. Since
there are no other references to Annexes II and III in Regulation (EC) No
1342/2008, those Annexes should be deleted.

(11)     Regulation (EC) No
1342/2008 should be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1342/2008 is amended as
follows:

(1)
Article 4 is replaced by the following:

‘Article 4

Calculation
of fishing effort

1. For the purposes of this Regulation, the
fishing effort deployed by a group of vessels shall be calculated as the sum of
the products of capacity-values in kW for each vessel and the number of days
each vessel has been present within an area set out in Annex I. A day present
within an area shall be any continuous period of 24 hours or part thereof
during which a vessel is present within the area and absent from port.

2. When calculating a day present within an
area Member States shall use the same method used to establish the effort
baseline referred to in Article 12(2)(a).’

(2)
Article 9 is replaced by the following:

‘Article 9

Special procedure for setting TACs

1. Where there is insufficient information
to set the TACs in accordance with Article 7, the TACs for cod stocks in the
Kattegat, the west of Scotland and the Irish Sea shall be set at a level
indicated by scientific advice. However, if the level indicated by scientific
advice is more than 20 % greater than the TACs in the previous year, they
shall be set at a level 20% greater than the TACs in the previous year, or if
the level indicated by scientific advice is more than 25% less than the TACs in
the previous year they shall be set at a level 25% less than the TACs in the
previous year.

2. Where there is insufficient information
to set the TACs in accordance with paragraph 1, the TACs for cod stocks in the
Kattegat, the west of Scotland and the Irish Sea shall be set at a level
corresponding to:

(a) a 25 % reduction compared to the TAC
in the previous year,

or, if scientific advice so recommends,

(b) a reduction not exceeding 25 %,
compared to the TAC in the previous year, together with other appropriate
measures.

3. Where there is insufficient information
to set the TACs in accordance with Article 8, the TACs for the cod stock in the
North Sea, the Skagerrak and the eastern Channel shall be set by applying
mutatis mutandis paragraphs 1 and 2 of this Article, unless consultations with
Norway result in agreement on a different level of the TAC.’

(3)
In Article 11, paragraphs 2 and 3 are deleted

(4)
The following Articles 11a, 11b, 11c and 11d are
inserted:

‘Article 11a

Exclusion of fishing effort deployed in certain areas, depth or by
certain gears

1. Fishing effort deployed by a vessel
during a trip may be excluded by the Member States when counting the deployed
effort against the maximum allowable fishing effort if:

(a)     the entire fishing activity of that
trip by the vessel concerned is carried out outside cod-distribution areas as listed
in accordance with paragraph 2

or

(b)     the entire fishing activity of that
trip by the vessel concerned is carried out at a depth greater than 300 m;

or

(c)     during that trip the fishing vessel
concerned has only one regulated gear on board and that gear is listed in
accordance with paragraph 2.

2. Based on the information provided by Member
States pursuant to paragraph 3, and in accordance with scientific advice, the
Council shall establish a list of areas outside cod-distribution and a list of gears
the technical attributes of which result in cod catches of less than 1,5 % of
the total catches measured by weight.

3. Member States shall provide appropriate
information to allow the Commission to assess whether an area or a gear shall
be on the list of areas and the list of gears referred to in paragraph 2.

4. Detailed rules concerning the format and
procedure for the transmission to the Commission of the information referred to
in paragraph 3 may be adopted by means of implementing acts in accordance with
the procedure referred to in Article 32.’

‘Article 11b

Adjustment of the baseline for the calculation of the maximum
allowable fishing effort

1. Fishing effort referred to in Article
11a(1) that contributed to the establishment of the baseline referred to in
Article 12(2)(a) shall be deducted from the baseline pursuant to this Article.

2. Requests for the adjustment of the
baseline referred to in paragraph 1 shall be submitted by Member States to the
Commission by [within one year from adoption of this amendment - will be filled
with concrete date].

3 The adjusted baseline shall be used to recalculate
the maximum allowable fishing effort level for the effort group concerned by
applying the annual percentage adjustments applied since the entry into force
of the plan.

4. The exclusion of fishing effort referred
to in Article 11a may be applied to the relevant effort group only after the
maximum allowable fishing effort has been recalculated in accordance with this Article.

5. Detailed rules concerning the format and
procedure for the transmission to the Commission of the requests referred to in
paragraph 2 may be adopted by means of implementing acts in accordance with the
procedure referred to in Article 32.’

‘Article 11c

Exclusion of vessels participating in trials of a fully documented
fishery

1. Fishing effort deployed by a vessel when
participating in trials of a fully documented fishery whereby all cod catches
including discards are counted against the quota may be excluded by the Member States
from the fishing effort regime.

2. When paragraph 1 is applied, Member
States shall adjust the maximum allowable fishing effort set pursuant to
Article 12(1) for the effort group concerned by deducting an amount of effort
equivalent to the amount of effort deployed by the participating vessel in the
year before its exclusion from the fishing effort regime.

3. Member States shall notify to the
Commission any adjustment of the maximum allowable fishing effort made pursuant
to paragraph 2. The notification shall include details of the vessels excluded
and the amount of fishing effort deducted both at aggregated and at vessel
level.

4. Transfers of cod quota to and from the
vessels excluded from the fishing-effort regime in accordance with paragraph 1
shall be prohibited.

5. Detailed rules concerning the format and
procedure for the notification referred to in paragraph 3 may be adopted by the
Commission by way of implementing acts in accordance with the procedure
referred to in Article 32.’

‘Article 11d

Transitional
measures on exclusions

Exclusions from the fishing effort regime that
were already in force prior to [__ - will be filled with concrete date] shall
continue to apply for as long as the conditions under which those exclusions
were granted remain fulfilled. Member States shall provide annually to the
Commission any relevant information enabling it to establish that those conditions
remain fulfilled.’

(5)
Article 12 is amended as follows:

(a) Paragraph 4 is replaced by the
following:

‘4. For
aggregated effort groups where the percentage cumulative catch calculated
according to paragraph 3(d) is equal to or exceeds 20 %, annual
adjustments shall apply. The maximum allowable fishing effort of the groups
concerned shall be calculated as follows:

(a)   
where Articles 7 or 8 apply, by applying to the
baseline the same percentage adjustment as that set out in those Articles for
fishing mortality;

(b)   
where Article 9(1) applies, by applying the same
percentage adjustment in fishing effort as the adjustment of the TAC compared
with the previous year;

(c)   
where Article 9(2) applies, by applying a
reduction not exceeding 25 %, compared to the maximum allowable fishing-effort
for the effort groups concerned in the previous year, together with other
appropriate measures.

(b) The following paragraph 6 is added:

‘By way of derogation from paragraph 4, the
Council may, where the maximum allowable fishing effort has been reduced for
four consecutive years, decide not to apply an annual adjustment to the maximum
allowable fishing effort in the subsequent year or in subsequent years.’

(6)
In Article 13(2) point (b) is replaced by the
following:

‘(b) results in a catch composition, including
discards, of less than 5 % cod over the management period’

(7)
In Article 14 the following paragraphs 5 and 6 are
added:

5. Where the scientific data indicate that
more than 10 % of the total cod catches for a particular effort group consist
of discards, or where the quota allocation does not correspond to the expected
catches and is likely to result in cod discards, the Member State concerned
shall take immediate measures to minimise cod discards.

6. Member States shall establish and
include in their national control action programmes, as provided for in Article
46 of Regulation Council (EC) No 1224/2009[4],
systems to ensure compliance with the conditions referred to in Articles 11a,
11b, 11c and 13. Member States shall assign a ‘very high risk’ level to vessels
operating pursuant to those Articles in their risk-based management as referred
to in Article 5 of Regulation 1224/2009.

(8)
Article 32 is replaced by the following:

‘Article 32

Committee
procedure

1. The Commission shall be assisted by the Committee for Fisheries and Aquaculture established by Article 30 of
Regulation (EC) No 2371/2002. That Committee shall be a
committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph,
Article 5 of Regulation (EU) No 182/2011 shall apply.’

(9)
Annexes II and III are deleted.

Article 2

This Regulation shall enter into force on
the 20th day following that of its publication in the Official Journal of
the European Union.

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]               OJ C , , p. .

[2]               OJ L 348, 24.12.2008, p. 20.

[3]               OJ L 343, 22.12.2009, p. 1

[4]               OJ L 343, 22.12.2009, p. 1