COMMISSION IMPLEMENTING REGULATION (EU) No 404/2011
of 8 April 2011
laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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 (1), and in particular Articles 6(5), 7(5), 8(1), 9(5), 14(10), 15(9), 16(2), 21(7), 22(7), 23(5), 24(8) and 25(2), Article 32, Articles 37(4), 40(6), 55(5), 58(9), 60(7), Article 61, and Articles 64(2), 72(5), 73(9), 74(6), 75(2), 76(4), 78(2), 79(7), 92(5), 103(8), 105(6), 106(4), 107(4), 111(3), 116(6), 117(4) and 118(5) thereof,
Whereas:
(1)
Regulation (EC) No 1224/2009 (hereafter referred to as ‘the Control Regulation’) provides for the adoption of detailed rules and measures to implement certain provisions it sets out.
(2)
With a view to ensuring a coherent application of these detailed rules the establishment of certain definitions is necessary.
(3)
Article 6(1) of the Control Regulation provides that a EU fishing vessel may only be used for the commercial exploitation of living aquatic resources if it has a valid fishing licence. Article 7(1) of the Control Regulation provides that an EU fishing vessel shall only be authorised to carry out specific fishing activities in so far as they are indicated in a valid fishing authorisation. It is appropriate to establish common rules for the issuance and management of such fishing licences and fishing authorisations to ensure a common standard of information contained therein.
(4)
Article 8(1) of the Control Regulation provides that a master of a fishing vessel has to respect conditions and restrictions relating to the marking and identification of fishing vessels and their gear. As such conditions and restrictions apply to EU waters it is necessary to establish them at the level of the European Union.
(5)
According to Article 9(1) of the Control Regulation, Member States shall operate a satellite-based Vessel Monitoring System for the effective monitoring of fishing activities of their fishing vessels wherever they may be and of fishing activities in their waters. It is appropriate to establish common specifications at the level of the European Union for such a system. Such specifications should set out in particular the characteristics of satellite tracking devices, details on the transmission of position data and rules in the case of a technical failure or non-functioning of satellite tracking devices.
(6)
Article 14(1) of the Control Regulation provides that masters of EU fishing vessels of 10 metres length overall or more have to keep a fishing logbook of their operations. It is necessary to determine the information that has to be recorded in the fishing logbooks and their format.
(7)
Article 14(7) of the Control Regulation provides that masters of EU fishing vessels have to use conversion factors established at EU level for converting stored or processed fish weight into live fish weight. It is therefore necessary to establish such conversion factors.
(8)
Article 15(1) of the Control Regulation provides that masters of EU fishing vessels of 12 metres length overall or more have to record logbook information by electronic means. It is appropriate to establish the requirements for the electronic completion and transmission of this information and to specify their format.
(9)
Articles 21(1) and 23(1) of the Control Regulation provide that masters of EU fishing vessels of 10 metres length overall and more have to complete and submit transhipment and landing declarations. It is appropriate to determine the information that has to be contained in these declarations and to specify the details of their submission.
(10)
Articles 22(1) and 24(1) of the Control Regulation provides for the electronic completion and transmission of transhipment and landing declarations by electronic means. It is appropriate to establish the requirements for the electronic completion and transmission of these data and to specify their format.
(11)
Articles 16(1) and 25(1) of the Control Regulation provide that every Member State has to monitor on the basis of sampling the activities of fishing vessels which are not subject to logbook requirements and landing declarations. With a view to ensure common standards of such samplings detailed rules, should be established at the level of the European Union.
(12)
Article 37 of the Control Regulation provides that necessary corrective actions are to be taken by the Commission in case the Commission has prohibited fishing because of the alleged exhaustion of the fishing opportunities available to a Member State or group of Member States, or to the European Union and it transpires that a Member State has not in fact exhausted its fishing opportunities. It is necessary to adopt adequate rules for the reallocation of such fishing opportunities, which take into account situations where a total allowable catch (TAC) for the EU is available or not, or where due to the annual setting of fishing opportunities circumstances do not permit such reallocation.
(13)
Articles 39 to 41 of the Control Regulation foresee rules to ensure that the engine power of fishing vessels is not exceeded. It is necessary to establish the technical rules of the relevant certifications and verifications to be done in this field.
(14)
Article 55 of the Control Regulation provides that Member States should ensure that recreational fisheries are conducted in a manner compatible with the objectives of the Common Fisheries Policy. For stocks under a recovery plan Member States should collect catch data of recreational fisheries. Where such fisheries have a significant impact on the resources, specific management measures may be decided by the Council. It is appropriate to lay down detailed rules for the establishment of sampling plans in order to allow Member States to monitor the catches of stocks subject to recovery plans by recreational fisheries practised from their vessels, in waters subject to their sovereignty or jurisdiction.
(15)
In order to establish a comprehensive control regime the whole chain of production and marketing should be covered by such a regime. Article 58 of the Control Regulation provides for a coherent traceability system to ensure that all lots of fisheries and aquaculture products are traceable at all stages of production, processing and distribution, from catching or harvesting to the retail stage. It is necessary to lay down common rules for identification procedures of the product concerned.
(16)
Article 60 of the Control Regulation provides that all fishery products are to be weighed on systems approved by the competent authorities unless they have adopted a sampling plan approved by the Commission. It is necessary to establish common rules in all Member States for the weighing of fresh and frozen fisheries products, as well as for the weighing of transhipped fisheries products, and for the weighing of fisheries products after transport from the place of landing.
(17)
Article 61 of the Control Regulation provides for the possibility for fisheries products to be weighed after transport under the condition that the Member State has adopted a control plan or, when the fisheries products are transported to another Member State, that the Member States concerned have adopted a common control programme that are approved by the Commission and based on a risk-based methodology adopted by the Commission. This risk-based methodology needs to be defined.
(18)
The fishery on herring, mackerel and horse mackerel has some specific features. For this reason it is appropriate to establish special rules on weighing and related elements to take account of these specific features.
(19)
Article 64 of the Control Regulation foresees that the detailed rules on the content of sales notes are to be adopted. It is pertinent to include such rules in this Regulation.
(20)
Articles 71 and 72 of the Control Regulation provide that Member States shall carry out surveillance in EU waters and take the necessary measures if a sighting does not correspond to the information available to them. It is necessary to lay down common rules regarding the content of a surveillance report, and its means of transmission.
(21)
Article 73 of the Control Regulation provides the possibility for the Council to establish control observer schemes and establishes in general lines the profile and tasks of control observers on board fishing vessels. Therefore detailed rules on the deployment and duties of control observers should be drawn up.
(22)
According to Chapter I of Title VII of the Control Regulation, rules are to be established for the conduct of inspections in order to enhance a standardised approach to control activities carried out by Member States. Rules should be laid down for the conduct of officials in charge of inspections, and the obligations of Member States regarding the behaviour of their officials authorised to conduct such inspections. At the same time, the duties of operators during inspection should be clarified. It is also necessary to lay down common principles for inspection procedures at sea, in port, during transport, at market places, and regarding inspection reports and their transmission.
(23)
Article 79 of the Control Regulation provides that Union inspectors may carry out inspections in EU waters and on EU fishing vessels outside EU waters. It is appropriate to draw up rules regarding the nomination of Union inspectors, their tasks and obligations, as well as the type of follow up to be given to their report.
(24)
Article 92 of the Control Regulation provides for the establishment of a point system for serious infringements with the aim to ensure compliance with the rules of the Common Fisheries Policy and a level playing field in all EU waters. For this to be achieved, it is necessary to establish common rules at the level of the European Union for the application of such a point system, including a list of points to be attributed for each serious infringement.
(25)
In accordance with Article 5(6) and Article 103 of the Control Regulation, the financial assistance in the framework of Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund (2) and Council Regulation (EC) No 861/2006 of 22 May 2006 establishing Community financial measures for the implementation of the Common Fisheries Policy and in the area of the Law of the Sea (3) is made conditional upon compliance by Member States with their obligations in the fields of fisheries conservation and control, the Commission having the possibility under certain conditions to suspend and cancel such financial assistance. It is necessary to lay down detailed rules for the application of these measures.
(26)
Article 107 of the Control Regulation provides for deduction of quotas by the Commission in cases of failure by Member States to comply with the rules on stocks subject to multiannual plans which leads to a serious threat to the conservation of such stocks. Rules should therefore be drawn up regarding the extent of the deduction, taking into account the nature of the non-compliance, the extent of its impact, as well as the gravity of the threat to the resource.
(27)
Chapter I of Title XII of the Control Regulation establishes rules on the handling of data recorded for the purpose of that Regulation, including the obligation for the Member States to set up a computerised database and a validation system and the provisions on accessing and exchanging such data. It is necessary to lay down common rules establishing procedures to process such data and to ensure access to it by the Commission and specifying the requirements for the exchange of data.
(28)
Article 110 of the Control Regulation deals with the remote access of the Commission or the body designated by it to computer files containing the data recorded by fisheries monitoring centres of Member States. In order to ensure such an access it is pertinent to establish clear rules on the conditions and the procedures that should be respected.
(29)
Articles 114 to 116 of the Control Regulation provide that the Member States have to establish official websites. With a view to ensure their equal accessibility in all Member States it is pertinent to establish rules at EU level on these websites.
(30)
According to Article 117 of the Control Regulation a system of mutual assistance shall be established for ensuring the administrative cooperation among Member States and the Commission. Such administrative cooperation is essential to ensure that a level playing field in the EU is established and that illegal activities are properly investigated and sanctioned. Rules should therefore be drawn up for a systematic exchange of information either on request or spontaneously, and for the possibility to request enforcement measures and administrative notification by another Member State.
(31)
The protection of individuals with regard to the processing of personal data by the Member States is governed by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (4). The protection of individuals with regard to the processing of personal data by the Commission is governed by Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (5), in particular as regards the requirements of confidentiality and security of processing, the transfer of personal data from the national systems of Member States to the Commission, the lawfulness of processing, and the rights of data subjects to information, access to and rectification of their personal data.
(32)
To facilitate the implementation of the fisheries control system, detailed rules should be concentrated in one single Regulation. The following Commission Regulations should therefore be repealed:
-
Regulation (EEC) No 2807/83 (6) laying down detailed rules for recording information on Member States’ catches of fish,
-
Regulation (EEC) No 3561/85 (7) concerning information about inspections of fishing activities carried out by national control authorities,
-
Regulation (EEC) No 493/87 (8) establishing detailed rules for remedying the prejudice caused on the halting of certain fisheries,
-
Regulation (EEC) No 1381/87 (9) establishing detailed rules concerning the marking and documentation of fishing vessels,
-
Regulation (EEC) No 1382/87 (10) establishing detailed rules concerning the inspection of fishing vessels,
-
Regulation (EC) No 2943/95 (11) setting out detailed rules for applying Council Regulation (EC) No 1627/94 laying down general provisions concerning special fishing permits,
-
Regulation (EC) No 1449/98 (12) laying down detailed rules for the application of Council Regulation (EEC) No 2847/93 as regards effort reports,
-
Regulation (EC) No 356/2005 (13) laying down detailed rules for the marking and identification of passive fishing gear and beam trawls,
-
Regulation (EC) No 2244/2003 (14) laying down detailed provisions regarding satellite-based Vessel Monitoring Systems,
-
Regulation (EC) No 1281/2005 (15) of the management of fishing licences and the minimal information to be contained therein,
-
Regulation (EC) No 1042/2006 (16) laying down detailed rules for the implementation of Article 28(3) and (4) of Council Regulation (EEC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy,
-
Regulation (EC) No 1542/2007 (17) on landing and weighing procedures for herring, mackerel and horse mackerel,
-
Regulation (EC) No 1077/2008 (18) laying down detailed rules for the implementation of Council Regulation (EC) No 1966/2006 on electronic recording and reporting of fishing activities and on means of remote sensing and repealing Regulation (EC) No 1566/2007, and
-
Regulation (EC) No 409/2009 (19) establishing Community conversion factors and presentation codes used to convert fish processed weight into fish weight, and amending Commission Regulation (EEC) No 2807/83.
(33)
The measures provided for in this Regulation are in accordance with the opinion of the Management Committee for Fisheries and Aquaculture,
HAS ADOPTED THIS REGULATION
TITLE I
GENERAL PROVISIONS
SCOPE
Article 1
Subject matter
This Regulation lays down detailed rules for the application of the control system of the European Union as established by the Control Regulation.
Article 2
Definitions
For the purpose of this Regulation the following definitions shall apply:
(1)
‘EU fishing vessel’ means a vessel defined in Article 3(d) of Council Regulation (EC) No 2371/2002 (20);
(2)
‘EU waters’ means waters defined in Article 3(a) of Regulation (EC) No 2371/2002;
(3)
‘holder of a fishing licence’ means a natural or legal person to whom a fishing licence as referred to Article 6 of the Control Regulation has been issued;
(4)
‘Union inspectors’ means inspectors as defined in Article 4(7) of the Control Regulation;
(5)
‘fish aggregating device’ means any equipment floating on the sea surface or anchored with the objective of attracting fish;
(6)
‘passive gear’ means any fishing gear the catch operation of which does not require an active movement of the gear, including:
(a)
gillnets, entangling nets, trammel nets, and trap nets;
(b)
drifting gillnets, and drifting trammel nets, any of which may be equipped with anchoring, floating and navigational gear;
(c)
long lines, lines, pots and traps;
(7)
‘beam trawl’ means any towed trawl in which the mouth of the trawl is held open by a beam or similar device, irrespectively of whether they are supported or not when dragged along the seabed;
(8)
‘vessel monitoring system’ (VMS) as referred to in Article 9(1) of the Control Regulation means a satellite-based fishing vessel monitoring system providing to the fisheries authorities data at regular intervals on the location, course and speed of vessels;
(9)
‘satellite-tracking device’ as referred to in Article 4(12) of the Control Regulation means a device installed on board of a fishing vessel that transmits position and related data automatically to the fisheries monitoring centre according to the legal requirements and that allows detection and identification of the fishing vessel at all times;
(10)
‘fishing trip’ means any voyage of a fishing vessel during which fishing activities are conducted that starts at the moment when the fishing vessel leaves a port and ends on arrival in port;
(11)
‘fishing operation’ means all activities in connection with searching for fish, the shooting, towing and hauling of active gears, setting, soaking, removing or resetting of passive gears and the removal of any catch from the gear, keep nets, or from a transport cage to fattening and farming cages;
(12)
‘electronic fishing logbook’ means the record by computerised means of fishing operation details by the master of a fishing vessel transmitted to the Member State authorities;
(13)
‘product presentation’ means a description of the processed state of the fisheries product or part thereof in accordance with the codes and descriptions in Annex I;
(14)
‘European Fisheries Control Agency’ means the agency as defined in Article 1 of Council Regulation (EC) No 768/2005 (21);
(15)
‘sighting’ means any observation of a fishing vessel by any competent authority of a Member State;
(16)
‘commercially sensitive information’ means information the release of which is likely to prejudice the commercial interests of an operator;
(17)
‘computerised validation system’ means a system capable of verifying that all data recorded in Member States databases is accurate, complete and submitted within the deadlines;
(18)
‘web service’ means a software system designed to support interoperable machine-to-machine interaction over a network.
TITLE II
GENERAL CONDITIONS FOR ACCESS TO WATERS AND RESOURCES
CHAPTER I
Fishing licenses
Article 3
Issue and management of fishing licences
1. A fishing licence referred to in Article 6 of the Control Regulation shall be valid for one EU fishing vessel only.
2. Fishing licences referred to in Article 6 of the Control Regulation shall be issued, managed and withdrawn by Member States for their fishing vessels in accordance with this Regulation.
3. Fishing licences referred to in Article 6 of the Control Regulation shall contain as a minimum the information set out in Annex II.
4. Fishing licences issued in accordance with Regulation (EC) No 1281/2005 shall be considered as fishing licences issued in accordance with this Regulation if they contain the minimum information required by paragraph 3 of this Article.
5. A fishing licence shall only be valid if the conditions on the basis of which it has been issued are still met.
6. If a fishing licence has been temporarily suspended or permanently withdrawn, the authorities of the flag Member State shall immediately inform the holder of the fishing licence.
7. At any moment the total capacity corresponding to the fishing licences issued by a Member State, in GT or kW, shall not be higher than the maximum capacity levels for that Member State established in accordance with Articles 12 and 13 of Regulation (EC) No 2371/2002, and Commission Regulation (EC) No 1438/2003 (22), Council Regulation (EC) No 639/2004 (23), and Commission Regulation (EC) No 2104/2004 (24).
CHAPTER II
Fishing authorisations
Article 4
Fishing authorisations
1. A fishing authorisation referred to in Article 7 of the Control Regulation shall be valid for one EU fishing vessel only.
2. Fishing authorisations referred to in Article 7 of the Control Regulation shall contain as a minimum the information set out in Annex III. The flag Member State shall ensure that the information contained in the fishing authorisation is accurate and consistent with the rules of the Common Fisheries Policy.
3. Special fishing permits issued in accordance with Council Regulation (EC) No 1627/94 (25) shall be considered as fishing authorisations issued in accordance with this Regulation if they contain the minimum information required by paragraph 2 of this Article.
4. A fishing authorisation as referred to in paragraph 2 and a fishing licence as referred to in Article 3(2) of this Regulation may be contained in the same document.
5. Without prejudice to special rules EU fishing vessels of less than 10 metres’ length overall which fish exclusively in the territorial waters of their flag Member States shall be excluded from the obligation to a have a fishing authorisation.
6. Paragraph 2 and paragraph 5 of Article 3 of this Regulation shall apply correspondingly.
Article 5
List of fishing authorisations
1. Without prejudice to special rules, when the websites as referred to in Article 114 of the Control Regulation have become operational and not later than 1 January 2012 Member States shall make available on the secure part of their official websites the list of their fishing vessels that have received fishing authorisations referred to in Article 7 of the Control Regulation before these fishing authorisations become valid. They shall update their list in case of any changes to this list before they become effective.
2. For the period 1 January 2011 until 31 December 2011, on request Member States shall make available to the Commission a list of their fishing vessels that have received fishing authorisations for 2011. They shall inform the Commission of any changes to this list before these changes become effective.
CHAPTER III
Marking and identification of EU fishing vessels and their gear
Section 1
Marking and identification of fishing vessels
Article 6
Marking of fishing vessels
An EU fishing vessel shall be marked as follows:
(a)
the letter(s) of the port or district in which the EU fishing vessel is registered and the number(s) under which it is registered shall be painted or displayed on both sides of the bow, as high above the water as possible so as to be clearly visible from the sea and the air, in a colour contrasting with the background on which they are painted;
(b)
for EU fishing vessels over 10 metres length overall and less than 17 metres length overall, the height of the letters and numbers shall be at least 25 centimetres with a line thickness of at least 4 centimetres. For EU fishing vessels of 17 metres length overall or more, the height of the letters and numbers shall be at least 45 centimetres, with a line thickness of at least 6 centimetres;
(c)
the flag Member State may require the international radio call sign (IRCS) or the external registration letters and numbers to be painted on top of the wheelhouse, so as to be clearly visible from the air, in a colour contrasting with the ground on which it is painted;
(d)
the contrasting colours shall be white and black;
(e)
the external registration letters and numbers painted or displayed on the hull of the EU fishing vessel shall not be removable, effaced, altered, illegible, covered or concealed.
Article 7
Documents carried on board an EU fishing vessel
1. The master of a EU fishing vessel of 10 metres length overall or more shall carry on board documents, issued by a competent authority of the Member State in which it is registered, showing at least the following elements of the vessel:
(a)
the name if any;
(b)
the letters of the port or district in which it is registered, and the number(s) under which it is registered;
(c)
the international radio call sign, if any;
(d)
the names and addresses of the owner(s) and, where applicable, the charterer(s);
(e)
the length overall, propulsion engine power, gross tonnage and, for EU fishing vessels which entered into service from 1 January 1987 onwards, date of entry into service.
2. On EU fishing vessels of 17 metres length overall or more with fish rooms the master shall keep on board accurate drawings with description of its fish rooms, including the indication of all access points and of their storage capacity in cubic metres.
3. The master of an EU vessel with chilled or refrigerated seawater tanks shall keep on board an up-to-date document indicating the calibration of the tanks in cubic metres at 10 centimetre intervals.
4. The documents referred to in paragraphs 2 and 3 shall be certified by the competent authority of the flag Member State. Any modification of the characteristics contained in the documents referred to in paragraphs 1 to 3, shall be certified by a competent authority of the flag Member State.
5. The documents referred to in this Article shall be presented for the purposes of control and inspection at the request of the officials.
Section 2
Marking and identification of fishing gear and crafts
Article 8
Marking of crafts and fish aggregating devices
Any craft carried on board EU fishing vessels and fish aggregating devices shall be marked with external registration letters and numbers of the EU fishing vessel(s) which use them.
Article 9
General rules for passive gear and beam trawls
1. The provisions contained in Articles 9 to 12 of this Regulation shall apply to EU fishing vessels fishing in all EU waters and the provisions contained in Articles 13 to 17 of this Regulation to EU waters outside 12 nautical miles measured from the base lines of the coastal Member States.
2. It shall be prohibited in EU waters as set down in paragraph 1 to carry out fishing activities with passive gear, buoys, and beam trawls, which are not marked and identifiable in accordance with the provisions of Articles 10 to 17 of this Regulation.
3. It shall be prohibited in EU waters as set down in paragraph 1 to carry on board:
(a)
beams of a beam trawl which do not display the external registration letters and numbers in accordance with Article 10 of this Regulation;
(b)
passive gear which is not labelled in accordance with Article 11(2) of this Regulation;
(c)
buoys which are not marked in accordance with Article 13(2) of this Regulation.
Article 10
Rules for beam trawls
The master of an EU fishing vessel or his representative shall ensure that each assembled beam trawl carried on board or used for fishing clearly displays the external registration letters and numbers of that fishing vessel on the beam of each beam trawl assembly.
Article 11
Rules for passive gear
1. The master of an EU fishing vessel or his representative shall ensure that each passive gear carried on board or used for fishing is clearly marked and identifiable in accordance with the provisions of this Article.
2. Each passive gear used for fishing shall permanently display the external registration letters and numbers displayed on the hull of the fishing vessel to which it belongs:
(a)
for nets, on a label attached to the upper first row;
(b)
for lines and long lines, on a label at the point of contact with the mooring buoy;
(c)
for pots and traps, on a label attached to the ground rope;
(d)
for passive gear extending more than 1 nautical mile, on labels attached in accordance with (a), (b) and (c) at regular intervals not exceeding 1 nautical mile so that no part of the passive gear extending more than 1 nautical mile shall be left unmarked.
Article 12
Rules for labels
1. Each label shall be:
(a)
made of durable material;
(b)
securely fitted to the gear;
(c)
at least 65 millimetres broad;
(d)
at least 75 millimetres long.
2. The label shall not be removable, effaced, altered, illegible, covered or concealed.
Article 13
Rules for buoys
1. The master of a EU fishing vessel or his representative shall ensure that two end marker buoys and intermediary marker buoys, rigged in accordance with Annex IV, are fixed to each passive gear used for fishing and are deployed in accordance with the provisions of this Section.
2. Each end marker buoy and intermediary buoy shall display the external registration letters and numbers displayed on the hull of the EU fishing vessel to which they belong and which has deployed such buoys as follows:
(a)
letters and numbers shall be displayed as high above the water as possible so as to be clearly visible;
(b)
in a colour contrasting with the surface on which they are displayed.
3. The letters and numbers displayed on the marker buoy shall not be effaced, altered or allowed to become illegible.
Article 14
Rules for cords
1. The cords linking the buoys to the passive gear shall be of submersible material, or shall be weighted down.
2. The cords linking the end marker buoys to each gear shall be fixed at the ends of that gear.
Article 15
Rules for end marker buoys
1. End marker buoys shall be deployed so that each end of the gear may be determined at any time.
2. The mast of each end marker buoy shall have a height of at least 1 metre above the sea level measured from the top of the float to the lower edge of the bottom most flag.
3. End marker buoys shall be coloured, but may not be red or green.
4. Each end marker buoy shall include:
(a)
one or two rectangular flag(s); where two flags are required on the same buoy, the distance between them shall be at least 20 centimetres flags indicating the extremities of the same gear shall be of the same colour and may not be white and shall be of the same size;
(b)
one or two light(s), which shall be yellow and give one flash each 5 seconds (F1 Y 5s), and be visible from a minimum distance of 2 nautical miles.
5. Each end marker buoy may include a top sign on the top of the buoy with one or two striped luminous bands which shall be neither red nor green and shall be at least 6 centimetres broad.
Article 16
Rules for fixing of end marker buoys
1. End marker buoys shall be fixed to passive gear in the following way:
(a)
the buoy in the western sector (meaning the half compass circle from south through west to and including north) shall be rigged with two flags, two striped luminous bands, two lights and a label in accordance with Article 12 of this Regulation;
(b)
the buoy in the eastern sector (meaning the half compass circle from north through east to and including the south) shall be rigged with one flag one striped luminous band, one light and a label in accordance with Article 12 of this Regulation.
2. The label shall contain the information contained in Article 13(2) of this Regulation.
Article 17
Intermediary marker buoys
1. Intermediary marker buoys shall be fixed to passive gear extending more than 5 nautical miles as follows:
(a)
intermediary marker buoys shall be deployed at distances of not more than 5 nautical miles so that no part of the gear extending 5 nautical miles or more shall be left unmarked;
(b)
intermediary marker buoys shall be fitted with a flashing light which shall be yellow and give one flash every 5 seconds (F1 Y 5s) and be visible from a minimum distance of 2 nautical miles. They shall have the same characteristics as those of the end marker buoy in the eastern sector, except that the flag shall be white.
2. By derogation from paragraph 1, in the Baltic Sea intermediary marker buoys shall be fixed to passive gear extending more than 1 nautical mile. Intermediary marker buoys shall be deployed at distances of not more than 1 nautical mile so that no part of the gear extending 1 nautical mile or more shall be left unmarked.
Intermediary marker buoys shall have the same characteristics as those of the end marker buoy in the eastern sector except for the following:
(a)
the flags shall be white;
(b)
every fifth intermediary marker buoys shall be fitted with a radar reflector giving an echo of at least 2 nautical miles.
CHAPTER IV
Vessel monitoring system
Article 18
Requirement of satellite-tracking devices on EU fishing vessels
1. Without prejudice to Article 25(3) of this Regulation an EU fishing vessel subject to VMS shall not be allowed to leave a port without a fully operational satellite-tracking device installed on board.
2. When an EU fishing vessel is in port, the satellite-tracking device may only be switched off if:
(a)
prior notification has been given to the fisheries monitoring centre (FMC) of the flag Member State and the FMC of the coastal Member State; and
(b)
providing that the next report shows that the EU fishing vessel has not changed its position in relation to the previous report.
The competent authorities of the flag Member State may allow to replace the prior notification referred to in (a) with an automatic VMS message or alarm generated by the system, indicating that the EU fishing vessel is within a pre-defined geographical area of a port.
3. This Chapter shall not apply to EU fishing vessels used exclusively for the exploitation of aquaculture.
Article 19
Characteristics of satellite-tracking devices
1. The satellite-tracking device installed on board EU fishing vessels shall ensure the automatic transmission to the FMC of the flag Member State, at regular intervals, of data relating to:
(a)
the fishing vessel identification;
(b)
the most recent geographical position of the fishing vessel, with a position error which shall be less than 500 metres, with a confidence interval of 99 %;
(c)
the date and time (expressed in Coordinated Universal Time (UTC)) of the fixing of the said position of the fishing vessel; and
(d)
the instant speed and course of the fishing vessel.
2. Member States shall ensure that satellite-tracking devices are protected against input or output of false positions and cannot be manually over-ridden.
Article 20
Responsibilities of the masters concerning the satellite-tracking devices
1. The masters of an EU fishing vessel shall ensure that the satellite-tracking devices are fully operational at all times and that the data referred to in Article 19(1) of this Regulation are transmitted.
2. Without prejudice to Article 26(1) of this Regulation, the master of an EU fishing vessel shall ensure in particular that:
(a)
the data are not altered in any way;
(b)
the antenna or the antennas connected to the satellite tracking devices are not obstructed, disconnected or blocked in any way;
(c)
the power supply of the satellite-tracking devices is not interrupted in any way; and
(d)
the satellite-tracking device is not removed from the fishing vessel.
3. It shall be prohibited to destroy, damage, render inoperative or otherwise interfere with the satellite-tracking device unless the competent authorities of the flag Member State have authorised its repair or replacement.
Article 21
Control measures to be adopted by flag Member States
Each flag Member State shall ensure the continuous and systematic monitoring and control of the accuracy of the data referred to in Article 19 of this Regulation, and shall act promptly whenever data are found to be inaccurate or incomplete.
Article 22
Frequency of data transmission
1. Each Member State shall ensure that its FMC receives, at least once every 2 hours, through the VMS the information referred to in Article 19 of this Regulation concerning its fishing vessels. The FMC may require the information at shorter time intervals.
2. The FMC shall have the capacity of polling the actual position of each of its fishing vessel.
Article 23
Monitoring of entry into and exit from specific areas
Each Member State shall ensure that through VMS data its FMC monitors, as regards its fishing vessels, date and time of entry into and exit from:
(a)
any maritime area where specific rules on access to waters and resources apply;
(b)
fishing restricted areas referred to in Article 50 of the Control Regulation;
(c)
regulatory areas of the Regional Fisheries Management Organisations to which the European Union or certain Member States are a party;
(d)
waters under the sovereignty and jurisdiction of a third country.
Article 24
Transmission of data to the coastal Member State
1. The VMS established by each Member State shall ensure the automatic transmission to the FMC of a coastal Member State of the data to be provided in accordance with Article 19 of this Regulation concerning its fishing vessels during the time they are in the waters of the coastal Member State. That data transmission shall be simultaneous with the receipt at the FMC of the flag Member State and shall be in accordance with the format set out in Annex V.
2. Coastal Member States monitoring jointly an area may specify a common destination for the transmission of the data to be provided in accordance with Article 19 of this Regulation. They shall inform the Commission and the other Member States thereof.
3. Each Member State shall transmit to the other Member States and the Commission in a, where possible electronic, format compatible with the World Geodetic System 1984 (WGS 84) a comprehensive list of the latitude and longitude coordinates which delineate its exclusive economic zone or exclusive fishery zone. It shall also communicate to the other Member States and the Commission any changes of these coordinates. Alternatively Member States may publish this list on the website referred to in Article 115 of the Control Regulation.
4. Member States shall ensure effective coordination between their competent authorities regarding the transmission of VMS data in accordance with Article 9(3) of the Control Regulation, including through the establishment of clear and documented procedures for this purpose.
Article 25
Technical failure or non-functioning of the satellite-tracking device
1. In the event of a technical failure or non-functioning of the satellite-tracking device fitted on board a EU fishing vessel, the master or his representative shall, starting from the time that the event was detected or from the time that he was informed in accordance with paragraph 4 or Article 26(1) of this Regulation, communicate every 4 hours, to the FMC of the flag Member State the up-to-date geographical coordinates of the fishing vessel by appropriate telecommunication means. Member States shall decide on the telecommunication means to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
2. The FMC of the flag Member State shall enter the geographical positions referred to in paragraph 1 into the VMS database without delay on their receipt. The manual VMS data shall be clearly distinguishable in a database from automatic messages. Where appropriate, those manual VMS data shall be transmitted without delay to coastal Member States.
3. Following a technical failure or non-functioning of the satellite-tracking device, an EU fishing vessel may only leave port once the satellite-tracking device fitted on board is fully functioning to the satisfaction of the competent authorities of the flag state. By derogation the FMC of the flag Member State may authorise its fishing vessels to leave the port with a non-functioning satellite-tracking device for its repair or replacement.
4. The competent authorities of the flag Member State or, where appropriate, of the coastal Member State shall seek to inform the master of or the person responsible for the vessel or their representative when the satellite-tracking device fitted on board a EU fishing vessel appears to be defective or not fully functioning.
5. The removal of the satellite-tracking device for repair or replacement shall be subject to the approval of the competent authorities of the flag Member State.
Article 26
Non-receipt of data
1. When the FMC of a flag Member State has not received data transmissions in accordance with Article 22 or Article 25(1) of this Regulation for 12 consecutive hours it shall notify the master or the operator of the EU fishing vessel or their representative(s) thereof as soon as possible. If, in respect of an EU particular fishing vessel, that situation occurs more than three times within a period of a calendar year, the flag Member State shall ensure that the satellite-tracking device of the fishing vessel is thoroughly checked. The flag Member State shall investigate the matter in order to establish whether the equipment has been tampered with. By way of derogation from Article 20(2)(d) of this Regulation, that investigation may entail the removal of such equipment for examination.
2. When the FMC of a flag Member State has not received data transmissions for 12 hours in accordance with Article 22 or Article 25(1) of this Regulation and the last received position was from within the waters of another Member State it shall notify the FMC of that coastal Member State thereof as soon as possible.
3. When the competent authorities of a coastal Member State observe an EU fishing vessel in its waters and have not received data in accordance with Article 24(1) or 25(2) of this Regulation, they shall notify the master of the fishing vessel and the FMC of the flag Member State thereof.
Article 27
Monitoring and recording of the fishing activities
1. Member States shall use the data received pursuant to Article 22, Article 24(1) and Article 25 of this Regulation for the effective monitoring of the activities of fishing vessels.
2. Flag Member States shall:
(a)
ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b)
take all necessary measures to ensure that they are only used for official purposes; and
(c)
take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
Article 28
Access to data by the Commission
The Commission may request Member States in accordance with Article 111(1)(a) of the Control Regulation to ensure the automatic transmission to the Commission or to the body designated by it, of the data to be provided in accordance with Article 19 of this Regulation concerning a specific group of fishing vessels and during a specific time. That data transmission shall be simultaneous with receipt at the FMC of the flag Member State and shall be in accordance with the format set out in Annex V.
TITLE III
CONTROL OF FISHERIES
CHAPTER I
Fishing logbook, transhipment declaration and landing declaration in paper format
Section 1
Completion and submission of a fishing logbook, landing declaration and transhipment declaration in paper format
Article 29
EU fishing vessels subject to the completion and submission of a fishing logbook and transhipment/landing declaration in paper format
1. Without prejudice to specific provisions contained in multi-annual plans, the master of a EU fishing vessel of 10 metres length overall or more that is not subject to the electronic completion and transmission of fishing logbook data, transhipment declarations and landing declarations, shall complete and submit the fishing logbook data, transhipment declarations and landing declarations referred to in Articles 14, 21 and 23 of the Control Regulation in paper format. These transhipment declarations and landing declarations may also be completed and submitted by the representative of the master on his behalf.
2. The requirement to complete and submit the fishing logbook data, transhipment declarations and landing declarations in paper format shall also apply to EU fishing vessels whose length overall is less than 10 metres when they are required by their flag Member State to keep a fishing logbook and submit transhipment and/or landing declarations in accordance with Articles 16(3) and 25(3) of the Control Regulation.
Article 30
Models for fishing logbooks, transhipment declarations and landing declarations in paper format
1. For all fishing areas, except NAFO sub area 1 and ICES divisions V(a) and XIV, the fishing logbook, transhipment declaration and landing declaration in paper format shall be completed and submitted by masters of EU fishing vessels in accordance with the model shown in Annex VI. However, the model shown in Annex VII may be used for fisheries operations carried out exclusively in the Mediterranean by masters of EU fishing vessels which are not subject to the obligation to transmit fishing logbook, transhipment declaration and landing declaration data electronically, and which make daily fishing trips in a single fishing zone.
2. For NAFO sub area 1 and ICES divisions V(a) and XIV, the format shown in Annex VIII shall be used for the paper fishing logbook and the format shown in Annex IX for paper transhipment declarations and landing declarations.
3. The fishing logbook, transhipment declaration and landing declaration in paper format shown in Annexes VI and VII shall also be kept in accordance with paragraph 1 and Article 31 of this Regulation when such EU fishing vessels are carrying out fishing activities in the waters of a third country, in waters regulated by a Regional Fisheries Management Organisation or in waters outside EU waters not regulated by a Regional Fisheries Management Organisation, unless the third country or the rules of the Regional Fisheries Management Organisation concerned specifically require a different kind of fishing logbook, transhipment declaration or landing declaration to be completed and submitted. If the third country does not specify a particular fishing logbook, but does require data elements different from those required by the European Union, such data elements shall be recorded.
4. Member States may continue to use paper fishing logbook formats in conformity with Regulation (EEC) No 2807/83 for EU fishing vessels not subject to the electronic completion and transmission of fishing logbook data in accordance with Article 15 of the Control Regulation until stocks of paper fishing logbook formats have been used up.
Article 31
Instructions for the completion and submission of fishing logbooks, transhipment declarations and landing declarations in paper format
1. The fishing logbook, transhipment declaration and landing declaration in paper format shall be completed and submitted in accordance with the instructions set out in Annex X.
2. Where the instructions set out in Annex X state that the application of a rule is optional, the flag Member State may make it mandatory.
3. All entries in the fishing logbook, transhipment declaration or landing declaration shall be legible and indelible. No entry shall be erased or altered. If a mistake is made the incorrect entry shall be crossed out with a single line and the new correct entry shall be written and initialled by the master. Each line shall be initialled by the master.
4. The master of the EU fishing vessel or, for transhipment declarations and landing declarations, his representative shall certify with his initials or signature that the entries in the fishing logbook, transhipment declaration and landing declaration are correct.
Article 32
Deadlines for the submission of a fishing logbook, transhipment declaration and a landing declaration in paper format
1. When a EU fishing vessel has made a landing in a port or a transhipment in a port or in a place close to the shore of its flag Member State, its master shall submit the original(s) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after completion of transhipment or landing to the competent authorities of the Member State concerned. The original(s) of such a transhipment declaration and landing declaration may also be submitted by the representative of the master on his behalf.
2. When no catches are landed after a fishing trip, the master shall submit the original(s) of the fishing logbook and transhipment declaration as soon as possible and not later than 48 hours after arrival in port. The original(s) of such a transhipment declaration may also be submitted by the representative of the master on his behalf.
3. When a EU fishing vessel has made a transhipment in a port or in a place close to the shore or a landing in a port of a Member State other than its flag Member State, it shall submit the first copy (copies) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after transhipment or landing to the competent authorities of the Member State in which the transhipment or landing takes place. The original(s) of the fishing logbook, transhipment declaration and landing declaration shall be dispatched as soon as possible and not later than 48 hours after transhipment or landing to the competent authorities of the flag Member State.
4. When a EU fishing vessel has made a transhipment in a port or in the waters of a third country or on the high seas or a landing in a port of a third country, it shall dispatch the original(s) of the fishing logbook, transhipment declaration and landing declaration as soon as possible and not later than 48 hours after the transhipment or landing to the competent authorities of the flag Member State.
5. When a third country or the rules of a Regional Fisheries Management Organisation require a different kind of fishing logbook, transhipment declaration or landing declaration from the one in Annex VI the master of the EU fishing vessel shall submit a copy of that document to his competent authorities as soon as possible and not later than 48 hours after transhipment or landing.
Section 2
Specific rules for the fishing logbook in paper format
Article 33
Completion of fishing logbook in paper format
1. The paper fishing logbook shall be completed with all obligatory information even when there are no catches:
(a)
daily by not later than 24.00 and before entering the port;
(b)
at the time of any inspection at sea;
(c)
at the time of events defined in the Community legislation or by the flag Member State.
2. A new line in the paper fishing logbook shall be filled in:
(a)
for each day at sea;
(b)
when fishing in a new ICES Division or another fishing zone the same day;
(c)
when entering fishing effort data.
3. A new page in the paper fishing logbook shall be filled in:
(a)
when using different gear, or a net of a different mesh size range, to that of the previous gear used;
(b)
for any fishing done after a transhipment or an intermediate landing;
(c)
if the number of columns is insufficient;
(d)
on departure from a port when no landing has taken place.
4. On departure from a port, or following completion of a transhipment operation, and when catches remain on board, the quantities of each species shall be indicated on a new fishing logbook page.
5. The codes given in Annex XI shall apply to indicate, under the appropriate headings of the paper format fishing logbook, the fishing gear used.
Section 3
Specific rules for the transhipment declaration and landing declaration in paper format
Article 34
Handing over of a transhipment declaration in paper format
1. In the case of a transhipment operation between two EU fishing vessels on completion of a transhipment operation the master of the transhipping fishing vessel or his representative shall hand over a copy of his vessel’s paper transhipment declaration to the master of the receiving vessel or his representative. The master of the receiving vessel or his representative on completion of transhipment operation shall also hand over a copy of his vessel’s paper transhipment declaration to the master of the transhipping vessel or his representative.
2. The copies referred to in paragraph 1 shall be presented for the purposes of control and inspection at the request of an official.
Article 35
Signing of the landing declaration
Each page of the landing declaration shall be signed prior to submission by the master or his representative.
CHAPTER II
Fishing logbook, landing declaration and transhipment declaration in electronic format
Section 1
Completion and transmission of a fishing logbook, landing declaration and transhipment declaration data in electronic format
Article 36
Requirement of electronic recording and reporting system on EU fishing vessels
1. Without prejudice to Article 39(4) of this Regulation an EU fishing vessel subject to electronic completion and transmission of fishing logbook, transhipment declaration and landing declaration in accordance with Articles 15, 21 and 24 of the Control Regulation shall not be allowed to leave port without a fully operational electronic recording and reporting system installed on board.
2. This Chapter shall not apply to EU fishing vessels used exclusively for the exploitation of aquaculture.
Article 37
Format for transmission of data from an EU fishing vessel to the competent authority of its flag State
Member States shall determine the format to be used between EU fishing vessels flying their flags and their competent authorities for the completion and transmission of fishing logbook, transhipment declaration and landing declaration data as referred to in Articles 15, 21 and 24 of the Control Regulation.
Article 38
Return messages
1. Return messages shall be issued to the EU fishing vessels for each transmission of fishing logbook, transhipment, prior notification and landing data. The return message shall contain an acknowledgement of receipt.
2. The master of an EU fishing vessel shall retain the return message until the end of the fishing trip.
Article 39
Provisions in the event of technical failure or non-functioning of electronic recording and reporting systems
1. In the event of a technical failure or non-functioning of the electronic recording and reporting system fitted on board a EU fishing vessel, the master of the fishing vessel or his representative shall, starting from the time that the event was detected or from the time that he was informed in accordance with Article 40(1) of this Regulation, communicate fishing logbook, transhipment declaration and landing declaration data to the competent authorities of the flag Member State by appropriate telecommunications means on a daily basis and no later than 24.00 even when there are no catches. Member States shall decide on the telecommunication means to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
2. In the event of a technical failure or non-functioning of the electronic recording and reporting system fishing logbook and transhipment declaration data shall also be sent:
(a)
at the request of the competent authority of the flag State;
(b)
immediately after the last fishing operation or after the transhipment has been completed;
(c)
before entering into port;
(d)
at the time of any inspection at sea;
(e)
at the time of events defined in Community legislation or by the flag State.
Prior notification and landing declaration data shall also be sent in the cases referred to in (a) and (e).
3. The competent authorities of the flag Member State shall enter the data referred to in paragraph 1 into the electronic data base without delay on their receipt.
4. Following a technical failure or non-functioning of its electronic recording and reporting system, a EU fishing vessel may only leave port once the recording and reporting system fitted on board is fully functioning to the satisfaction of the competent authorities of the flag Member State or is otherwise authorised to leave by the competent authorities of the flag Member State. The flag Member State shall immediately notify the coastal Member State when it has authorised one of its fishing vessels to leave a port in the coastal Member State with a non-functioning electronic recording and reporting system.
5. The removal of the electronic recording and reporting system for repair or replacement shall be subject to the approval of the competent authorities of the flag Member State.
Article 40
Non-receipt of data
1. When the competent authorities of a flag Member State have not received data transmissions in accordance with Articles 15, 22 and 24 of the Control Regulation they shall notify the master or the operator of the EU fishing vessel or their representative(s) thereof as soon as possible. If, in respect of a particular EU fishing vessel, that situation occurs more than three times within a period of calendar year, the flag Member State shall ensure that the electronic recording and reporting system of the fishing vessel is thoroughly checked. The flag Member State shall investigate the matter in order to establish why data have not been received and shall take appropriate measures.
2. When the competent authorities of a flag Member State have not received data transmissions in accordance with Articles 15, 22 and 24 of the Control Regulation and the last position received through the Vessel Monitoring System was from within the waters of a coastal Member State they shall notify the competent authorities of that coastal Member State thereof as soon as possible.
3. The master or the operator of the EU fishing vessel or their representative shall send all data which have not yet been transmitted and for which a notification was received in accordance with paragraph 1 to the competent authorities of the flag Member State immediately on receipt of the notification.
Article 41
Data access failure
1. When the competent authorities of a coastal Member State observe an EU fishing vessel of another Member State in their waters and cannot access fishing logbook or transhipment data in accordance with Article 44 of this Regulation they shall request the competent authorities of the flag Member State to ensure access to those data.
2. If the access referred to in paragraph 1 is not ensured within 4 hours of the request, the coastal Member State shall notify the flag Member State. On receipt of the notification the flag Member State shall immediately send the data to the coastal Member State by any available electronic means.
3. If the coastal Member State does not receive the data referred to in paragraph 2, the master or operator of the EU fishing vessel or their representative shall send the data and a copy of the return message referred to in Article 38 of this Regulation to the competent authorities of the coastal Member State on request and by any available, if possible electronic, means. Member States shall decide on the means to be used and shall indicate them on the website referred to in Article 115 of the Control Regulation.
4. If the master or the operator of the EU fishing vessel or their representative can not provide the competent authorities of the coastal Member State with a copy of the return message referred to in Article 38 of this Regulation, fishing activities in the waters of the coastal Member State by the fishing vessel concerned shall be prohibited until the master, the operator of the fishing vessel or his representative can provide a copy of the return message or information referred to in Article 14(1) of the Control Regulation to the said authorities.
Article 42
Data on the functioning of the electronic recording and reporting system
1. Member States shall maintain databases on the functioning of their electronic recording and reporting system. Those databases shall contain at least and be capable to generate automatically the following information:
(a)
the list of their fishing vessels whose electronic recording and reporting systems have experienced technical failure or have failed to function;
(b)
the number of vessels that have not made daily electronic fishing logbook transmissions and the average number of electronic fishing logbook transmissions received per fishing vessel, broken down by flag Member State;
(c)
the number of transhipment declaration, landing declaration, takeover declaration and sales note transmissions received, broken down by flag Member State.
2. Summaries of information generated according to paragraph 1 shall be sent to the Commission at its request. Alternatively this information may also be made available on the secure website in a format and at time intervals to be decided by the Commission after consultation with Member States.
Article 43
Format for exchange of information between Member States
1. Information referred to in this Section shall be exchanged between Member States using the format defined in Annex XII from which extensible mark-up language (XML) shall be derived. The XML standard to be used for all electronic data exchanges between Member States, and between Member States, the Commission and the body designated by it, shall be decided by the Commission after consultation with Member States.
2. Amendments to the format referred to in paragraph 1 shall be clearly identified and marked with the date it was updated. Such amendments shall not come into effect earlier than 6 months after they have been decided.
3. When a Member State receives electronic information from another Member State it shall ensure that a return message is issued to the competent authorities of that Member State. The return message shall contain an acknowledgement of receipt.
4. Data elements in Annex XII that are mandatory for masters to record in their fishing logbook according to EU rules shall also be mandatory in exchanges between Member States.
Article 44
Access to data
1. A flag Member State shall ensure in real time the electronic exchange of information referred to in Article 111(1) of the Control Regulation to a coastal Member State on fishing logbook, transhipment declaration, prior notifications and landing declaration data of its fishing vessels when conducting fishing operations in the waters under the sovereignty or jurisdiction or entering a port of the coastal Member State.
2. Without prejudice to paragraph 1 a flag Member State may on request ensure in real time the electronic exchange of information referred to in Article 111(1) of the Control Regulation on fishing logbook and transhipment declaration data of its fishing vessels to a Member State carrying out, in accordance with Article 80 of the Control Regulation, inspections of fishing vessels of another Member State in EU waters outside of the waters of the requesting Member State, in international waters or in waters of third countries.
3. Data referred to in paragraphs 1 and 2 for the previous 12 months shall be made available by the flag Member State on request.
4. The data referred to in paragraph 1 shall at least include the data from the last departure from port to the time when the landing is completed. The data referred to in paragraph 2 shall at least include the data from the last departure from port to the time of the request. Data as referred to in paragraphs 1 and 2 from fishing trips for the previous 12 months shall be made available on request.
5. The master of an EU fishing vessel shall have secure access to his own electronic fishing logbook information, transhipment declaration data and landing declaration data stored in the database of the flag Member State at any time.
6. A coastal Member State shall grant online access to its database of fishing logbook, transhipment declaration, prior notification and landing declaration data to a fishery patrol vessel of another Member State via the FMC of that Member State in the context of a joint deployment plan or other agreed joint inspection activities.
Article 45
Exchange of data between Member States
1. Access to the data referred to in Article 44 of this Regulation shall be by secure Internet connection on a permanent basis.
2. Member States shall exchange the relevant technical information to ensure mutual access to and exchange of electronic fishing logbook data, transhipment declaration data and landing declaration data.
3. Member States shall:
(a)
ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b)
take all necessary measures to ensure that they are only used for official purposes; and
(c)
take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
Article 46
Single authority
1. In each Member State, the single authority referred to in Article 5(5) of the Control Regulation shall be responsible for transmitting, receiving, managing and processing all data covered by this Chapter.
2. Member States shall exchange contact details of the authorities referred to in paragraph 1 and shall inform the Commission and the body designated by it thereof within 3 months after the entry into force of this Regulation.
3. Any changes in the information referred to in paragraphs 1 and 2 shall be communicated to the Commission, the body designated by it and other Member States before they become effective.
Section 2
Specific rules for the fishing logbook in electronic format
Article 47
Frequency of transmission
1. When at sea the master of an EU fishing vessel shall transmit the electronic fishing logbook information to the competent authorities of the flag Member State at least once a day and no later than 24.00 even when there are no catches. He shall also send such data:
(a)
at the request of the competent authority of the flag Member State;
(b)
immediately after the last fishing operation has been completed;
(c)
before entering into port;
(d)
at the time of any inspection at sea;
(e)
at the time of events defined in EU legislation or by the flag State.
When the last fishing operation took place not more than 1 hour before the entry into port the transmissions referred to in (b) and (c) may be sent in a single message.
2. The master may transmit corrections to the electronic fishing logbook and transhipment declaration data up to the last transmission referred to in paragraph 1(c). Corrections shall be easily identifiable. All original electronic fishing logbook data and corrections to those data shall be stored by the competent authorities of the flag Member State.
3. The master shall keep a copy of the information referred to in paragraph 1 on board the fishing vessel for the duration of each absence from port and until the landing declaration has been submitted.
4. When a EU fishing vessel is in port, does not carry fishery products on board and the master has submitted the landing declaration for all fishing operations on the last fishing trip, transmission in accordance with paragraph 1 of this Article may be suspended subject to prior notification to the FMC of the flag Member State. Transmission shall be resumed when the EU fishing vessel leaves the port. Prior notification is not required for EU fishing vessels equipped with and transmitting data via VMS.
CHAPTER III
Common rules for fishing logbooks, transhipment declarations and landing declarations in paper or electronic format
Section 1
Common rules for the determination of live weight
Article 48
Definitions
For the purpose of this Chapter the following definitions shall apply:
(1)
‘presentation’ means the form into which the fish is processed while on board of the fishing vessel and prior to landing, as described in Annex I;
(2)
‘collective presentation’ means a presentation consisting of two or more parts extracted from the same fish.
Article 49
Conversion factors
1. For the completion and submission of fishing logbooks as referred to in Articles 14 and 15 of the Control Regulation the EU conversion factors set out in Annexes XIII, XIV and XV shall apply to convert stored or processed fish weight into live fish weight. They shall apply to fisheries products on board or transhipped or landed by EU fishing vessels.
2. By way of derogation from paragraph 1, where Regional Fisheries Management Organisations, of which the European Union is a contracting party or cooperating non-contracting party, for its regulatory area or a third country with whom the European Union has an agreement to fish, for the waters under its sovereignty or jurisdiction, have established conversion factors, those factors shall apply.
3. Where no conversion factors as referred to in paragraphs 1 and 2 exist for a given species and presentation, the conversion factor adopted by the flag Member State shall apply.
4. Without prejudice to paragraph 2 the competent authorities of Member States shall use the EU conversion factors referred to in paragraph 1 when calculating the live weight of transhipments and landings in order to monitor the quota uptake.
Article 50
Calculation method
1. The fish live weight shall be obtained by multiplying the fish processed weight by the conversion factors referred to in Article 49 of this Regulation for each species and presentation.
2. In case of collective presentations, only one conversion factor corresponding to one of the parts of the collective presentation of a fish shall be used.
Section 2
Common rules for the completion and submission of the Fishing logbook
Article 51
General rules for fishing logbooks
1. The margin of tolerance referred to in Article 14(3) of the Control Regulation for the estimation of quantities in kilograms live weight of each species retained on board shall be expressed as a percentage of the fishing logbook figures.
2. For catches which are to be landed unsorted the margin of tolerance may be calculated on the basis of one or more representative samples for the total quantities kept on board.
3. For the purpose of the application of Article 14 of the Control Regulation species caught for live bait shall be considered as a species caught and kept on board.
4. The master of a EU fishing vessel crossing an effort zone where it is authorised to fish shall record and report the information referred to in Article 14(5) of the Control Regulation as applicable even if he does not carry out any fishing activities in that zone.
Section 3
Common rules for the completion and submission of transhipment/landing declarations
Article 52
Margin of tolerance in the transhipment declaration
The margin of tolerance referred to in Article 21(3) of the Control Regulation for the estimation of quantities in kilograms live weight of each species transhipped or received shall be expressed as a percentage of the transhipment declaration figures.
Article 53
Difference in transhipped catches
When a difference exists between the quantities of catches transhipped from the transhipping vessel and the quantities taken on board by the receiving vessel the higher quantity shall be considered to have been transhipped. Member States shall ensure that follow up action is taken to determine the actual weight of fishery products transhipped between the transhipping and the receiving vessel.
Article 54
Completion of landing operation
When, in accordance with Article 61 of the Control Regulation, the fisheries products are transported from the place of landing before they have been weighed, the landing operation shall be regarded to have been completed for the purpose of the application of Articles 23(3) and 24(1) of the Control Regulation when the fisheries products have been weighed.
Article 55
Fishing Operations involving two or more EU fishing vessels
Without prejudice to special rules in the case of fishing operations involving two or more EU fishing vessels:
-
from different Member States, or
-
from the same Member State but where the catches are landed in a Member States of which they do not fly the flag,
the landed catch shall be attributed to the EU fishing vessel landing the fisheries products.
CHAPTER IV
Sampling plans and collection of data on EU fishing vessels not subject to fishing logbook and landing declaration requirements
Article 56
Establishment of sampling plans
The sampling plans referred to in Articles 16(2) and 25(2) of the Control Regulation for the monitoring of EU fishing vessels not subject to fishing logbook and landing declaration requirements shall be established by Member States in accordance with this Chapter to determine the landings of a stock or group of stocks taken by such fishing vessels and, where appropriate, their fishing effort. These data shall be used for the recording of catches and, where appropriate, fishing effort as referred to in Article 33 of the Control Regulation.
Article 57
Sampling methodology
1. The sampling plans referred to in Article 56 of this Regulation shall be drawn up in accordance with Annex XVI.
2. The size of the sample to be inspected shall be determined on the basis of risk as follows:
(a)
‘very low’ risk: 3 % of the sample;
(b)
‘low’ risk: 5 % of the sample;
(c)
‘medium’ risk: 10 % of the sample;
(d)
‘high’ risk: 15 % of the sample;
(e)
‘very high’ risk: 20 % of the sample.
3. Catches per day of a fleet sector for a given stock shall be estimated by multiplying the total number of active EU fishing vessels of the fleet sector concerned with the average daily catch per given stock per EU fishing vessel based on the catches of the sample of the EU fishing vessels inspected.
4. Member States that collect systematically on at least a monthly basis for each of their fishing vessels not subject to fishing logbook and landing requirements data:
(a)
on all landings of catches of all species in kilogram, including zero landings;
(b)
on the statistical rectangles where these catches where taken, shall be considered to have met the requirement of a sampling plan as referred to in Article 56 of this Regulation.
CHAPTER V
Control of fishing effort
Article 58
Fishing effort report
1. The fishing effort report referred to in Article 28 of the Control Regulation shall be sent in accordance with Annex XVII.
2. Where the master of an EU fishing vessel transmits a message to the competent authorities by radio in accordance with Article 28(1) of the Control Regulation, Member States shall decide on the radio stations to be used and indicate them on the website referred to in Article 115 of the Control Regulation.
CHAPTER VI
Corrective measures
Article 59
General principles
In order to benefit from the corrective measures referred to in Article 37 of the Control Regulation, Member States shall notify the Commission as soon as possible and in any case within 1 month of the date of the publication in the Official Journal of a closure of a fishery in accordance with Article 36 of the Control Regulation of the extent of the prejudice suffered.
Article 60
Allocation of available fishing opportunities
1. When the prejudice has not been removed wholly or in part by action in accordance with Article 20(5) of Regulation (EC) No 2371/2002, the Commission shall, as soon as possible after receiving the information referred to in Article 59 of this Regulation, take the necessary measures with the aim of remedying the prejudice caused.
2. The measure referred to in paragraph 1 shall state:
(a)
which Member States have suffered prejudice (the prejudiced Member States) and the amount of the prejudice (as reduced by any quota exchanges);
(b)
where applicable, which Member States have exceeded their fishing opportunities (the exceeding Member States) and the amount of the excess of fishing opportunities (as reduced by any exchanges in accordance with Article 20(5) of Regulation (EC) No 2371/2002);
(c)
where applicable, the deductions to be made from the fishing opportunities of the exceeding Member States in proportion to the exceeded fishing opportunities;
(d)
where applicable, the additions to be made to the fishing opportunities of the prejudiced Member States in proportion to the prejudice suffered;
(e)
where applicable the date or dates on which the additions and deductions shall take effect;
(f)
where appropriate, any other necessary measure for remedying the prejudice suffered.
CHAPTER VII
Engine power
Article 61
Certification of propulsion engine power
1. The certification of the maximum continuous engine power of a new propulsion engine, a replacement propulsion engine and a propulsion engine that has been technically modified, as referred to in Article 40(1) and (2) of the Control Regulation, shall be provided in accordance with Council Regulation (EEC) No 2930/86 (26).
2. A propulsion engine shall be considered to have been technically modified as referred to in paragraph 1 when any of its main components (parts), including but not limited to, injection equipment, valves, turbocharger, pistons, cylinder liners, connecting rods, cylinder heads, have been modified or replaced by new parts with different technical specifications resulting in a modified power rating or when the engine adjustments, such as the injection settings, turbocharger configuration, or the valve timings have been modified. The nature of the technical modification shall be clearly explained in the certification referred to in paragraph 1.
3. The holder of a fishing licence shall inform the competent authorities before a new propulsion engine will be installed or before an existing propulsion engine will be replaced or technically modified.
4. This Article shall apply to fishing vessels subject to a fishing effort regime as from 1 January 2012. For other fishing vessels it shall apply as from 1 January 2013. It shall only apply to fishing vessels which have had new propulsion engines installed, or whose existing propulsion engines have been replaced or technically modified, after the entry into force of this Regulation.
Article 62
Verification and sampling plan
1. For the purpose of verifying the engine power in accordance with Article 41 of the Control Regulation, Member States shall establish a sampling plan for the identification of those fishing vessels or groups of fishing vessels in their fleet with a risk of under-declaration of propulsion engine power. As a minimum, the sampling plan shall be based on following high risk criteria:
(a)
fishing vessels operating in fisheries that are subject to fishing effort regimes, in particular those fishing vessels to which an individual effort allocation in kWdays has been allocated;
(b)
fishing vessels subject to limitations of vessel power resulting from national or European Union law;
(c)
fishing vessels for which the ratio of vessel power (kW) to vessel tonnage (GT) is 50 % lower than the average ratio for the same type of fishing vessel, gear type and target species. For the purpose of that analysis, Member States may divide the fleet according to one or several of the following criteria:
(i)
fleet segmentation or management units defined in national law;
(ii)
length categories;
(iii)
tonnage categories;
(iv)
gears used;
(v)
target species.
2. Member States may consider additional risk criteria following their own assessment.
3. Member States shall draw a list of their fishing vessels which meet one or more of the risk criteria referred to in paragraph 1 and, where appropriate, the risk criteria referred to in paragraph 2.
4. From each group of fishing vessels corresponding to one of the risk criteria referred to in paragraphs 1 and 2, Member States shall take a random sample of fishing vessels. The size of the sample shall be equal to the square root rounded to the nearest whole number of fishing vessels in the group concerned.
5. For each fishing vessel included in the random sample, Member States shall verify all technical documents as referred to in Article 41(1) of the Control Regulation in their possession. Among the other documents as referred to under letter (g) of Article 41(1) of the Control Regulation, Member States shall pay special attention to the engine maker catalogue specifications, where available.
6. This Article shall apply as from 1 January 2012. Physical verifications as referred to in Article 41(2) of the Control Regulation shall prioritise trawlers operating in a fishery subject to a fishing effort regime.
Article 63
Physical verification
1. When propulsion power measurements are performed on board a fishing vessel in the framework of a physical verification of propulsion engine power as referred to in Article 41(2) of the Control Regulation, the propulsion engine power may be measured at the most accessible point between the propeller and the engine.
2. If the power of the propulsion engine is measured after the reduction gear, an appropriate correction shall be applied to the measurement in order to calculate the propulsion engine power at the engine output flange according to the definition in Article 5(1) of Regulation (EEC) No 2930/86. That correction shall take into account the power losses resulting from the gearbox on the basis of the official technical data provided by the gearbox manufacturer.
CHAPTER VIII
Control of recreational fisheries
Article 64
Establishment of sampling plans
1. Without prejudice to the use of data as referred to in paragraph 5, sampling plans to be established by Member States in accordance with Article 55(3) of the Control Regulation for the purpose of monitoring catches of stocks subject to recovery plans practised from vessels engaged in recreational fisheries shall provide for the collection of biennial data.
2. The methods used in the sampling plans shall be established clearly and shall be, as far as possible:
(a)
stable over time;
(b)
standardised within regions;
(c)
in accordance with the quality standards established by relevant international scientific bodies and, where appropriate, by the relevant Regional Fisheries Management Organisations to which the European Union is contracting party or observer.
3. The sampling plan shall include a sampling design for the estimation of catches of stocks subject to recovery plans, the gear used and the relevant geographical area of the recovery plan concerned where these catches where taken;
4. Member States shall estimate systematically the accuracy and precision of the collected data.
5. For the purpose of the sampling plans referred to in paragraph 1 Member States may use the data collected according to the multiannual Community programme as laid down in Council Regulation (EC) No 199/2008 (27) to the extent that such data are available.
6. This provision shall not apply when a Member State has prohibited recreational fisheries of stocks subject to a recovery plan.
Article 65
Notification and evaluation of sampling plans
1. Member States shall notify their sampling plans to the Commission 12 months after the entry into force of a recovery plan. For recovery plans which are already in force at the time of entry into force of this Regulation, the sampling plan shall be notified within 12 months after entry into force of this Regulation. Amendments of the sampling plan shall be notified before they become effective.
2. In addition to the evaluation requested in Article 55(4) of the Control Regulation, the Scientific, Technical and Economic Committee for Fisheries shall also evaluate:
(a)
after the notification referred to in paragraph 1 and every 5 years thereafter the conformity of the notified sampling plans with the criteria and requirements mentioned in Article 64(2) and (3) of this Regulation;
(b)
the conformity of any amendments to a sampling plan referred to in paragraph 1 with the criteria and requirements mentioned in Article 64(2) and (3) of this Regulation.
3. The Scientific, Technical and Economic Committee for Fisheries shall make recommendations, where appropriate, for improving the sampling plan.
TITLE IV
CONTROL OF MARKETING
CHAPTER I
Traceability
Article 66
Definition
For the purpose of this Chapter, the following definition shall apply:
‘Fisheries and aquaculture products’ mean any products which fall under Chapter 03 and Tariff headings 1604 and 1605 of the Combined Nomenclature established by Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (28).
Article 67
Information on lots
1. Operators shall provide the information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation at the moment when the fisheries and aquaculture products are put into lots and no later than the first sale.
2. In addition to paragraph 1, operators shall update the relevant information referred to in Article 58(5) of the Control Regulation which ensues from the merging or splitting of the lots of fisheries and aquaculture products after first sale, at the stage when it becomes available.
3. In case where, as a result of the merging or splitting of the lots after first sale, fisheries and aquaculture products from several fishing vessels or aquaculture production units are mixed, operators shall be able to identify each lot of origin at least by means of their identification number referred to in Article 58(5)(a) of the Control Regulation and make possible to trace them back to catching or harvesting stage, in accordance with Article 58(3) of the Control Regulation.
4. Systems and procedures referred to in Article 58(4) of the Control Regulation shall allow operators to identify the immediate supplier(s) and, except when they are final consumers, the immediate buyer(s) of the fisheries and aquaculture products.
5. The information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation shall be provided by means of the labelling or packaging of the lot, or by means of a commercial document physically accompanying the lot. It may be affixed to the lot by way of an identification tool such as a code, barcode, electronic chip or a similar device or marking system. The information on the lot shall remain available at all stages of production, processing and distribution in such a way that the competent authorities of Member States have access to it at any time.
6. Operators shall affix the information on fisheries and aquaculture products referred to in Article 58(5) of the Control Regulation by way of an identification tool such as a code, barcode, electronic chip or a similar device or marking system:
(a)
as from 1 January 2013, to fisheries subject to a multiannual plan;
(b)
as from 1 January 2015, to other fisheries and aquaculture products.
7. Where the information referred to in Article 58(5) of the Control Regulation is provided by means of a commercial document physically accompanying the lot, at least the identification number shall be affixed to the corresponding lot.
8. Member States shall cooperate with each other to ensure that the information affixed to the lot and/or accompanying physically the lot can be accessed by the competent authorities of another Member State than the one where the fisheries or aquaculture products have been put into the lot, in particular when the information is affixed to the lot by way of an identification tool such as a code, barcode, an electronic chip or a similar device. Operators using such tools shall ensure that they are developed on the basis of internationally recognised standards and specifications.
9. The information on the date of catches referred to in Article 58(5) point (d) of the Control Regulation may include several calendar days or one period of time corresponding to several dates of catches.
10. The information on the suppliers referred to in Article 58(5) point (f) of the Control Regulation shall be the immediate supplier(s) of the operator referred in paragraph 4 of this Article. This information may be provided, where applicable, by way of the identification mark referred to in Annex II, Section I, of Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific hygiene rules for food of animal origin (29).
11. The information listed in points (a) to (f) of Article 58(5) of the Control Regulation shall not apply to:
(a)
imported fisheries and aquaculture products which are excluded from the scope of implementation of the catch certificate in accordance with Article 12(5) of Council Regulation (EC) No 1005/2008 (30);
(b)
fisheries and aquaculture products caught or farmed in freshwater; and
(c)
ornamental fish, crustaceans and molluscs.
12. The information listed in points (a) to (h) of Article 58(5) of the Control Regulation shall not apply to fisheries and aquaculture products falling under Tariff headings 1604 and 1605 of the Combined Nomenclature.
13. For the purposes of Article 58 of the Control Regulation, the information on the relevant geographical area shall be:
(a)
the relevant geographical area, as defined in Article 4(30) of the Control Regulation, for catches of stocks or group of stocks subject to a quota and/or a minimum size in EU legislation; or
(b)
the catch area in accordance with Article 5 of Commission Regulation (EC) No 2065/2001 (31), for other stocks or group of stocks.
14. The value of small quantities of fisheries and aquaculture products referred to in Article 58(8) of the Control Regulation shall be applicable to direct sales by a fishing vessel, per calendar day and per final consumer.
Article 68
Information to the consumer
1. Member States shall ensure that the information referred to in Article 58(6) of the Control Regulation concerning the commercial designation, the scientific name of the species, the catch area referred to in Article 5 of Regulation (EC) No 2065/2001 and the production method is indicated on the label or appropriate mark of the fisheries and aquaculture products offered for retail sale, including imported products.
2. By derogation from paragraph 1, the scientific name of the species may be provided to the consumers at retail level by means of commercial information such as bill boards or posters.
3. Where a fisheries or aquaculture product has been previously frozen, the word ‘defrosted’ shall also be indicated on the label or appropriate mark referred to in paragraph 1. The absence of this wording at retail level shall be considered as meaning that the fisheries and aquaculture products have not been frozen beforehand and later defrosted.
4. By derogation from paragraph 3, the word ‘defrosted’ shall not have to appear on:
(a)
fisheries and aquaculture products previously frozen for health safety purposes, in accordance with Annex III, Section VIII, of Regulation (EC) No 853/2004; and
(b)
fisheries and aquaculture products which have been defrosted before the process of smoking, salting, cooking, pickling, drying or a combination of those processes.
5. This Article shall not apply to fisheries and aquaculture products falling under Tariff headings 1604 and 1605 of the Combined Nomenclature.
6. Fisheries and aquaculture products and packages labelled or marked prior to the date of entry into force of this Article which do not comply with Article 58(5) point (g) on the scientific name and point (h) of the Control Regulation and with paragraphs (1), (2) and (3) of this Article may be marketed until such stocks have been used up.
CHAPTER II
Weighing of fisheries products
Section 1
General rules on weighing
Article 69
Scope
Without prejudice to Articles 78 - 89 of this Regulation the provisions contained in this chapter shall apply to landings from EU fishing vessels taking place in a Member State and transhipments involving EU fishing vessels taking place in ports or places close to the shore of a Member State as well as to the weighing of fisheries products on board EU fishing vessels in EU waters.
Article 70
Weighing records
1. Registered buyers, registered auctions or other bodies or persons that are responsible for the first marketing or storage before first marketing of fisheries products, or where appropriate the master of the EU fishing vessel, shall record weighing carried out in accordance Articles 60 and 61 of the Control Regulation by indicating the following information:
(a)
the FAO alpha-3 codes of the species weighed;
(b)
result of weighing for each quantity of each species in kilograms product weight;
(c)
the external identification number and the name of the fishing vessel from which the weighed quantity originates;
(d)
presentation of the fisheries products weighed;
(e)
date of weighing (YYYY-MM-DD).
2. Registered buyers, registered auctions or other bodies or persons that are responsible for the first marketing, or storage before first marketing of fisheries products or where appropriate the master of an EU fishing vessel, shall keep the records referred to in paragraph 1 for a period of 3 years.
Article 71
Timing of weighing
1. Where fisheries products are transhipped between EU fishing vessels and the first landing of the transhipped fisheries products is to take place in a port outside of the European Union, the fisheries products shall be weighed before being transported away from the port or place of transhipment.
2. When the fisheries products are weighed on board an EU fishing vessel in accordance with Article 60(3) of the Control Regulation and they are weighed again on land after landing the figure resulting from the weighing on land shall be used for the purpose of Article 60(5) of the Control Regulation.
3. Without prejudice to special provisions for EU fishing vessels not subject to the electronic completion and transmission of fishing logbook data as referred to in Article 15 of the Control Regulation the Member State may require the master to hand over a copy of the log sheet to the competent authorities of the Member State of landing prior to weighing.
Article 72
Weighing systems
1. All weighing systems shall be calibrated and sealed in accordance with national systems by the competent authorities of the Member State.
2. The natural or legal person responsible for the weighing system shall maintain a record of calibration.
3. Where the weighing is carried out on a conveyor belt system a visible counter shall be fitted that records the cumulative total of the weight. The reading of the counter at the start of the weighing operation as well as the cumulative total shall be recorded. All use of the system shall be recorded by the natural or legal person responsible for the weighing in the weighing logbook.
Article 73
Weighing of frozen fisheries products
1. Without prejudice to special provisions and in particular Articles 70 and 74 of this Regulation when landed quantities of frozen fisheries products are weighed, the weight of frozen fisheries products landed in boxes or blocks may be determined per species and, where appropriate, presentation by multiplying the total number of boxes or blocks by a net average weight for a box or block calculated according to the methodology set down in Annex XVIII.
2. The natural or legal persons weighing the fisheries products shall keep a record per landing, indicating:
(a)
the name and external registration letters and numbers of the vessel from which the fishery products have been landed;
(b)
the species and, where appropriate, presentation of fish landed;
(c)
the size of the lot and sample of pallets per species and, where appropriate, presentation in accordance with the provisions of point 1 of Annex XVIII;
(d)
the weight of each pallet in the sample and the average weight of the pallets;
(e)
the number of boxes or blocks on each pallet in the sample;
(f)
the tare weight per box, if different from the tare weight specified in point 4 of Annex XVIII;
(g)
the average weight of an empty pallet in accordance with the provisions of point 3(b) of Annex XVIII;
(h)
the average weight per box or block of fisheries per species and, where appropriate, presentation.
Article 74
Ice and water
1. Before weighing the registered buyer, registered auction or other bodies or persons responsible for the first marketing of fisheries products shall ensure that the fisheries products be cleaned of ice as is reasonable without causing spoilage and reducing quality.
2. Without prejudice to special rules for pelagic species referred to in Articles 78 - 89 of this Regulation which are landed in bulk for transfer to the point of first marketing, storage or processing, the deduction of water and ice from the total weight shall not exceed 2%. In all cases the percentage for deduction of water and ice shall be recorded on the weighing slip with the entry for weight. For non-pelagic species there shall be no deduction of water or ice.
Article 75
Access by competent authorities
The competent authorities shall have full access at all times to the weighing systems, the weighing records, written declarations and all premises where the fisheries products are stored or processed.
Article 76
Sampling plans
1. The sampling plan referred to in Article 60(1) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XIX.
2. The sampling plan referred to in Article 60(3) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XX. If catches are weighed on board, the margin of tolerance as referred to in Articles 14(3) and 21(3) of the Control Regulation shall not apply when the figure resulting from weighing after landing is greater than the corresponding figure resulting from weighing on board.
3. When Member States are intending to adopt sampling plans as referred to in Article 60(1) and (3) of the Control Regulation, they shall preferably submit a single sampling plan covering all weighing procedures concerned for a period of 3 years within 6 months after the entry into force of this Regulation. This sampling plan may consist of different parts for different fisheries.
4. Any new sampling plans to be adopted after the date referred to in paragraph 3 or any modifications to such plans shall be submitted for approval 3 months before the end of the year concerned.
Article 77
Control plans and programmes for the weighing of fisheries products after transport from the place of landing
1. The control plan referred to in Article 61(1) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XXI.
2. When Member States are intending to adopt control plans referred to in Article 61(1) of the Control Regulation they shall submit a single control plan per Member State covering all transports of fisheries products to be weighed after transport. Such a control plan shall be submitted within 6 months after the entry into force of this Regulation. This single control plan may consist of different parts for different fisheries.
3. The common control programme referred to in Article 61(2) of the Control Regulation and any substantial modification thereof shall be adopted by Member States in accordance with the risk-based methodology described in Annex XXII.
4. When Member States are intending to adopt common control programmes referred to in Article 61(2) of the Control Regulation, they shall submit them within 6 months after the entry into force of this Regulation.
5. Any new control plan as referred to in paragraph 2 or common control programmes as referred to in paragraph 4 to be adopted after the date referred to in paragraphs 2 and 4 or any modifications to such plans or programmes shall be submitted 3 months before the end of the year preceding the date of entry into force of that plan or programme.
Section 2
Special rules for weighing of certain pelagic species
Article 78
Scope of weighing procedures for catches of herring, mackerel and horse mackerel
The rules set out in this Section shall apply to the weighing of catches landed in the European Union or by EU fishing vessels in third countries, of herring (Clupea harengus), mackerel (Scomber scombrus) and horse mackerel (Trachurus spp.) or a combination thereof, taken in:
(a)
for herring in ICES zones: I, II, IIIa, IV, Vb, VI and VII;
(b)
for mackerel in ICES zones: IIa, IIIa, IV, Vb, VI, VII, VIII, IX, XII, XIV and EU waters of CECAF;
(c)
for horse mackerel: ICES zones IIa, IV, Vb, VI, VII, VIII, IX, X, XII, XIV and EU waters of CECAF,
when the quantities per landing exceed 10 tonnes.
Article 79
Ports of weighing catches of herring, mackerel and horse mackerel
1. Catches of species referred to in Article 78 of this Regulation shall be weighed immediately on landing. However, catches of these species may be weighed after transport where:
-
for a destination within a Member State the Member State concerned has adopted a control plan as referred to in Article 61(1) of the Control Regulation in accordance with the risk-based methodology described in Annex XXI,
-
for a destination in another Member State the Member States concerned have adopted a common control programme as referred to in Article 61(2) of the Control Regulation in accordance with the risk-based methodology described in Annex XXII,
and where this control plan or common control programme has been approved by the Commission
2. Each Member State concerned shall establish at which of its ports the weighing of species referred to in Article 78 of this Regulation shall be carried out and shall ensure that all landings of such species are carried out in those ports. Such ports shall have:
(a)
established landing and transhipment times;
(b)
established landing and transhipment places;
(c)
established inspection and surveillance procedures.
3. The Member States concerned shall communicate to the Commission the list of such ports and the inspection and surveillance procedures applicable in those ports, including the terms and conditions for recording and transmitting the quantities of any such species within each landing.
4. Any changes to the lists of ports and to the inspection and surveillance procedures referred to in paragraph 3 shall be transmitted to the Commission, at least 15 days before they enter into force.
5. Member States shall ensure that all landings of species referred to in Article 78 of this Regulation by their vessels outside the European Union are carried out in ports expressly chosen for the purpose of weighing by third countries which have concluded agreements with the European Union concerning such species.
6. The Commission shall transmit the information referred to in paragraphs 3 and 4 as well as the list of ports chosen by third countries to all Member States concerned.
7. The Commission and the Member States concerned shall publish the list of ports and changes thereto on their official websites.
Article 80
Entry into a port of a Member State
1. For the purpose of weighing, the master of a fishing vessel or his representative shall inform the competent authorities of the Member State in which the landing is to be made, at least 4 hours in advance of entry to port of landing concerned of the following:
(a)
the port he intends to enter, the name of the vessel and its external registration letters and numbers;
(b)
the estimated time of arrival at that port;
(c)
the quantities in kilograms live weight of herring, mackerel and horse mackerel retained on board;
(d)
relevance geographical area(s) where the catch was taken; the zone shall refer to the sub-area and division or sub-division in which catch limits apply pursuant to Union law.
2. The master of an EU fishing vessel which is under the obligation to record fishing logbook data electronically shall send the information referred to in paragraph 1 electronically to his flag Member State. The Member States shall transmit this information without delay to the Member State where the landing is to be made. The electronic fishing logbook data referred to in Article 15 of the Control Regulation and the information referred to in paragraph 1 may be sent in a single electronic transmission.
3. Member States may provide for a shorter notification period than laid down in paragraph 1. In such a case the Member States concerned shall inform the Commission 15 days before the entry into force of the shorter notification period. The Commission and the Member States concerned shall put this information on their websites.
Article 81
Discharge
The competent authorities of the Member State concerned shall require that the discharge of any catches referred to in Article 78 of this Regulation does not commence until it is expressly authorised. If the discharge is interrupted, permission shall be required before the discharge can recommence.
Article 82
Fishing logbook
1. Immediately upon arrival in port and before the discharge commences, the master of a fishing vessel which is not under the obligation to record fishing logbook data electronically shall present the completed relevant page or pages of the fishing logbook for inspection by the competent authority of the Member State at the port of landing.
2. The quantities of herring, mackerel and horse mackerel retained on board, notified prior to landing as referred to in Article 80(1)(c) of this Regulation, shall be equal to the quantities recorded in the fishing logbook after its completion.
Article 83
Publicly operated weighing facilities for fresh herring, mackerel and horse mackerel
Without prejudice to the provisions of Article 72 of this Regulation, where publicly operated weighing facilities are used, the natural or legal persons weighing catches referred to in Article 78 of this Regulation shall issue to the buyer a weighing slip indicating the date and time of the weighing and the identity number of the tanker. A copy of the weighing slip shall be attached to the sales note or takeover declaration.
Article 84
Privately operated weighing facilities for fresh fish
1. In addition to the provisions of Article 72 of this Regulation, the use of privately operated weighing facilities shall also be subject to the requirements of this Article.
2. The natural or legal persons weighing any catches referred to in Article 78 of this Regulation shall for each weighing system keep a bound, paginated record. This shall be completed immediately after the completion of weighing of an individual landing, and at the latest by 23.59 local time of the day of completion of weighing. This record shall indicate:
(a)
the name and external registration letters and numbers of the vessel from which any catches referred to in Article 78 of this Regulation have been landed;
(b)
the unique identity number of the tankers and its load in cases where any catches referred to in Article 78 of this Regulation have been transported from the port of landing before weighing in accordance with Article 79 of this Regulation. Each tanker load shall be weighed and recorded separately. However the total weight of all the tanker loads from the same vessel may be recorded as a whole in case these tanker loads are weighed consecutively and without interruption;
(c)
the species of fish;
(d)
the weight of each landing;
(e)
the date and time of the beginning and end of the weighing.
3. Without prejudice to Article 72(3) of this Regulation, where the weighing is carried out on a conveyor belt system all use of the system shall be recorded in the bound, paginated record of weighing.
Article 85
Weighing of frozen fish
When landed quantities of frozen herring, mackerel and horse mackerel are weighed, the weight of frozen fish landed in boxes shall be determined per species in accordance with Article 73 of this Regulation.
Article 86
Keeping of weighing records
All records of weighing provided for in Article 84(3) and Article 85 of this Regulation and the copies of any transport documents as part of a control plan or a common control programme referred to in Article 79(1) of this Regulation shall be kept for 6 years.
Article 87
Sales note and takeover declaration
The natural or legal persons responsible for the submission of sales notes and takeover declarations shall submit such declarations in respect of species referred to in Article 78 of this Regulation to the competent authorities of the Member State concerned on demand.
Article 88
Cross-checks
Until the establishment of a computerised database in accordance with Article 109 of the Control Regulation the competent authorities shall carry out administrative cross-checks on all landings between the following:
(a)
quantities by species of herring, mackerel and horse mackerel indicated in the prior notification of landing, as referred to in Article 80(1)(c) of this Regulation, and the quantities recorded in the fishing logbook;
(b)
quantities by species of herring, mackerel and horse mackerel recorded in the fishing logbook and the quantities recorded in the landing declaration;
(c)
quantities by species of herring, mackerel and horse mackerel recorded on the landing declaration and the quantities recorded in the takeover declaration or the sales note;
(d)
catch area recorded in the vessel’s fishing logbook and the VMS data for the vessel concerned.
Article 89
Monitoring of weighing
1. The weighing of catches of herring, mackerel and horse mackerel from the vessel shall be monitored by species. In the case of vessels pumping catch ashore the weighing of the entire discharge shall be monitored. In the case of landings of frozen herring, mackerel and horse mackerel, all boxes shall be counted and the methodology for calculating the average net weight of boxes provided for in Annex XVIII shall be monitored.
2. The following data shall be cross-checked in addition to those referred to in Article 88 of this Regulation:
(a)
quantities by species of herring, mackerel and horse mackerel recorded in the records of weighing at public or private facilities and the quantities by species recorded in the takeover declaration or the sales note;
(b)
quantities by species of herring, mackerel and horse mackerel recorded in any transport documents as part of a control plan or a common control programme referred to in Article 79(1) of this Regulation;
(c)
unique identity numbers of tankers entered into the record in accordance with Article 84(2)(b) of this Regulation.
3. It shall be verified that the vessel is empty of all fish, once the discharge has been completed.
4. All monitoring activities covered by this Article and Article 107 of this Regulation shall be documented. Such documentation shall be kept for 6 years.
CHAPTER III
Sales notes
Article 90
General rules
1. In the sales note the number of individuals as referred to in Article 64(1)(f) of the Control Regulation shall be indicated if the relevant quota is managed on the basis of individuals.
2. The type of presentation referred to in Article 64(1)(g) of the Control Regulation shall include the state of presentation as set out in Annex I.
3. The price referred to in Article 64(1)(l) of the Control Regulation shall be indicated in the currency applicable in the Member State where the sale takes place.
Article 91
Formats of sales notes
1. Member States shall determine the format to be used for the electronic completion and transmission of sales notes as referred in Article 63 of the Control Regulation.
2. Information referred to in this Chapter shall be exchanged between Member States using the format defined in Annex XII from which extensible mark-up language (XML) shall be derived. The XML standard to be used for all electronic data exchanges between Member States, and between Member States, the Commission and the body designated by it, shall be decided by the Commission after consultation with Member States.
3. Amendments to the format referred to in paragraph 1 shall be clearly identified and marked with the date it was updated. Such amendments shall not come into effect earlier than 6 months after they have been decided.
4. When a Member State receives electronic information from another Member State it shall ensure that a return message is issued to the competent authorities of that Member State. The return message shall contain an acknowledgement of receipt.
5. Data elements in Annex XII that are mandatory for registered buyers, registered auctions or other bodies or persons authorised by Member States to record in their sales notes according to EU rules shall also be mandatory in exchanges between Member States.
6. Member States shall:
(a)
ensure that data received according to this Chapter are recorded in computer-readable form and safely stored in computerised databases for at least 3 years;
(b)
take all necessary measures to ensure that they are only used for official purposes; and
(c)
take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorised consultation.
7. In each Member State, the single authority referred to in Article 5(5) of the Control Regulation shall be responsible for transmitting, receiving, managing and processing all data covered by this Chapter.
8. Member States shall exchange contact details of the authorities referred to in paragraph 7 and shall inform the Commission and the body designated by it thereof within 3 months after the entry into force of this Regulation.
9. Any changes in the information referred to in paragraphs 7 and 8 shall be communicated to the Commission, the body designated by it and other Member States before they become effective.
10. The format of sales notes not subject to electronic completion and transmission shall be decided by Member States. Those sales notes shall contain as a minimum the information set down in Article 64(1) of the Control Regulation.
TITLE V
SURVEILLANCE
CHAPTER I
Surveillance reports
Article 92
Information to be recorded in the surveillance report
1. The surveillance reports referred to in Article 71(3) and (4) of the Control Regulation shall be established in accordance with Annex XXIII to this Regulation.
2. Member States shall upload the data contained in their surveillance reports into the electronic database referred to in Article 78 of the Control Regulation and provide for the functionalities referred to in Annex XXIV No 2 to this Regulation. The minimum information recorded in this database shall be that indicated in Annex XXIII. Paper surveillance reports may also additionally be scanned into the database.
3. The data from the reports shall be kept available in the database for at least 3 years.
4. Upon receipt of a surveillance report as referred to in paragraph 1 the flag Member State shall, as soon as possible, initiate an investigation on the activities of its fishing vessels to which the surveillance report refers.
5. Paragraph 1 shall apply without prejudice to the rules adopted by Regional Fisheries Management Organisations to which the European Union is a contracting party.
CHAPTER II
Control observers
Article 93
General rules concerning control observers
1. Without prejudice to special rules established by a Regional Fisheries Management Organisation or agreed with a third country, EU fishing vessels identified for the application of a control observer scheme shall carry at least one control observer on board during the time fixed by the scheme.
2. Member States shall designate control observers and ensure they are able to carry out their tasks. Member States shall ensure in particular the deployment of control observers to and from the EU fishing vessel concerned.
3. Control observers shall not perform other tasks than those established Article 73 of the Control Regulation and in Article 95 of this Regulation unless other tasks are to be performed pursuant to the EU control observer scheme or as a part of an observer programme under the scope of a Regional Fisheries Management Organisation or established in the framework of a bilateral agreement with a third country.
4. The competent authorities shall ensure that for the purposes of their mission control observers have means of communication independent from the communication system of the fishing vessel.
5. These rules do not affect the powers of the master of the fishing vessel as being in sole charge of the operations of the vessel.
Article 94
Independence of control observers
In order to be independent from the owner, the operator, the master of the EU fishing vessel and any crew member, as prescribed by Article 73(2) of the Control Regulation, control observers shall not be:
-
a relative or an employee of the master of the EU fishing vessel or any other crew member, the representative of the master or the owner or the operator of the EU fishing vessel to which he is assigned,
-
an employee of a company controlled by the master, a crew member, the representative of the master or the owner or the operator of the EU fishing vessel to which he is assigned.
Article 95
Duties of control observers
1. Control observers shall verify the relevant documents and record the fishing activities of the EU fishing vessel in which they are embarked as are listed in Annex XXV.
2. Control observers on board an EU fishing vessel shall, where appropriate, brief the officials who are about to proceed to an inspection of that fishing vessel upon arrival on board. If the facilities on board the EU fishing vessel so allow and where appropriate the brief shall take place in a closed meeting.
3. Control observers shall draw up the report referred to in Article 73(5) of the Control Regulation using the format established in Annex XXVI. They shall forward that report without delay and in any case within 30 days following completion of an assignment to his authorities and to the competent authorities of the flag Member State. Their competent authorities shall make the report available, on request, to the coastal Member State, the Commission or the body designated by it. Copies of reports made available to other Member States may not include the locations where the catches were taken in respect of start and finish positions of each fishing operation, but may include daily totals of catch in kilograms live weight equivalent by species and ICES division or other zone as appropriate.
Article 96
Pilot projects
The Union may provide financial assistance for carrying out pilot projects involving the deployment of control observers in accordance with Article 8(a)(iii) of Regulation (EC) No 861/2006.
TITLE VI
INSPECTION
CHAPTER I
Conduct of inspections
Section 1
General provisions
Article 97
Officials authorised to conduct inspections at sea or on land
1. Officials responsible for carrying out inspections, as referred to in Article 74 of the Control Regulation shall be authorised by the competent authorities of the Member States. To this end, Member States shall provide their officials with a service card stating their identity and the capacity under which they operate. Each official on duty shall carry that service card and present it during an inspection at the earliest opportunity.
2. Member States shall confer adequate powers on their officials as necessary for the fulfilment of control, inspection and enforcement in accordance with this Regulation, and to ensure compliance with the rules of the Common Fisheries Policy.
Article 98
General principles
1. Without prejudice to provisions contained in multi-annual plans, competent authorities of Member States shall adopt a risk based approach for the selection of targets for inspection, using all available information. In accordance with this approach, officials shall carry out inspections in accordance with rules laid down in this Chapter.
2. Without prejudice to provisions contained in multi-annual plans, Member States shall coordinate their control, inspection and enforcement activities. To this end, they shall adopt and execute national control action programmes as referred to in Article 46 of the Control Regulation and common control programmes as referred to in Article 94 of the Control Regulation covering both activities at sea and on land as necessary to ensure compliance with the rules of the Common Fisheries Policy.
3. Subject to a risk based control and enforcement strategy each Member State shall carry out the necessary inspection activities in an objective way in order to prevent the retention on board, transhipment, landing, transfer to cages and farms, processing, transport, storage, marketing and stocking of fishery products originating from activities that are not in compliance with the rules of the Common Fisheries Policy.
4. Inspections shall be carried out in a manner as to prevent to the extent possible any negative impact on the hygiene and quality of the fisheries products inspected.
5. Member States shall ensure that national fisheries related information systems allow for the direct electronic exchange of information on port state inspections between themselves, other Member States, the Commission and the body designated by it as appropriate, in accordance with Article 111 of the Control Regulation.
Article 99
Duties of officials during the pre-inspection phase
During the pre-inspection phase officials shall, where possible, collect all appropriate information, including:
(a)
fishing licences and fishing authorisations;
(b)
VMS information corresponding to the current fishing trip;
(c)
aerial surveillance, and other sightings;
(d)
previous inspection records and available information on the secure part of the website of the flag Member State on the EU fishing vessel concerned.
Article 100
Duties of officials authorised to conduct inspections
1. Officials authorised to conduct inspections shall verify and note the relevant items defined in the appropriate inspection module of the inspection report in Annex XXVII. For this purpose they may take pictures, video and audio recordings in accordance with national law, and, where appropriate, samples.
2. Officials shall not interfere with the right of any operator to communicate with the competent flag state authorities during inspection operations.
3. Officials shall take into account any information provided in accordance with Article 95(2) of this Regulation by a control observer on board the fishing vessel to be inspected.
4. On completion of an inspection officials shall debrief operators as appropriate on fisheries regulations relevant to the prevailing circumstances.
5. Officials shall leave as soon as possible the fishing vessel or the inspected premise following the completion of the inspection if no evidence of an apparent infringement is detected.
Article 101
Obligations of Member States, the Commission and European Fisheries Control Agency
1. The competent authorities of Member States, and, where appropriate, the Commission and the European Fisheries Control Agency, shall ensure that their officials, whilst being courteous and sensitive, conduct inspections professionally and to a high standard.
2. The competent authorities of each Member State shall establish procedures to ensure that any complaint made by operators regarding the conduct of inspections carried out by their officials is investigated in a fair and thorough manner in accordance with national law.
3. Coastal Member States may, subject to appropriate arrangements with the flag Member State of a fishing vessel, invite officials of the competent authorities of that Member State to participate in inspections of fishing vessels of that Member State, whilst those vessels are operating in waters of the coastal Member State or landing in its ports.
Section 2
Inspections at sea
Article 102
General provisions on inspections at sea
1. Any vessel used for control purposes including surveillance shall display so as to be clearly visible, a pennant or a symbol as shown in Annex XXVIII.
2. A boarding craft used to facilitate the transfer of officials carrying out inspections shall fly a similar flag or pennant of a size appropriate to that of the boarding craft to indicate that it is engaged in fishery inspection duties.
3. Persons in charge of inspection vessels shall have due regard to the rules of seamanship and manoeuvre at a safe distance from the fishing vessel in accordance with the international rules for the prevention of collisions at sea.
Article 103
Boarding fishing vessels at sea
1. Officials responsible for the conduct of the inspection shall ensure that no action is taken that may compromise the safety of the fishing vessel and its crew.
2. Officials shall not require the master of a fishing vessel that is being boarded or disembarked to stop or manoeuvre during fishing, or to stop the shooting or hauling of fishing gear. Officials may, however, require the interruption or delay of the shooting of gear to permit safe boarding or disembarkation until they have boarded or disembarked the fishing vessel. In the case of boarding this delay shall not exceed 30 minutes after officials have boarded the fishing vessel unless an infringement has been detected. This provision does not affect the possibility of officials to require the gear to be hauled for inspection.
Article 104
On board activities
1. When carrying out their inspection, officials shall verify and note all appropriate items provided for in the appropriate inspection report module set out in Annex XXVII to this Regulation.
2. Officials may require the master to haul a fishing gear for inspection.
3. Inspection teams shall normally be comprised of two officials. Additional officials may supplement inspections teams when necessary.
4. The duration of an inspection shall not exceed 4 hours, or until the net is hauled in, and the net and catches are inspected, whichever is longer. It shall not apply in the case that an apparent infringement is detected or where the officials need further information.
5. In the case of an apparent infringement being detected, identification marks and seals may be affixed securely to any part of the fishing gear or the fishing vessel, including containers of fisheries products and the compartment(s) in which they may be stowed, and the official(s) may remain on board for the time necessary for the completion of appropriate measures to ensure security and continuity of all the evidence of the apparent infringement.
Section 3
Inspections in port
Article 105
Preparation of inspection
1. Without prejudice to benchmarks defined in specific control and inspection programmes and in Article 9 of Regulation (EC) No 1005/2008, an inspection of a fishing vessel shall take place in port or on landing, on the following occasions:
(a)
routinely subject to a sampling methodology based on a risk-based management; or
(b)
where it is suspected of failing to comply with the rules of the Common Fisheries Policy.
2. In cases referred to in paragraph 1(b) and without prejudice to the last sentence of Article 106(2) of this Regulation the competent authorities of the Member States shall ensure that the fishing vessel to be inspected in port is met by their officials on arrival.
3. Paragraph 1 does not exclude the possibility for Member States to undertake random inspections.
Article 106
Inspections in port
1. When carrying out inspections officials shall verify and note all appropriate items listed in the corresponding inspection report module set out in Annex XXVII to this Regulation. Officials shall have due regard to any specific requirements which apply to the inspected fishing vessel, in particular to relevant provisions in multi-annual plans.
2. When carrying out an inspection of a landing officials shall monitor the whole landing process from the beginning to the end of the respective operation. A cross-check shall be carried out between the quantities by species recorded in the prior notification of arrival to land fishery products, the quantities by species recorded in the fishing logbook and the quantities by species landed or transhipped whichever is applicable. This provision shall not exclude the possibility of an inspection taking place after the start of the landing.
3. Member States shall ensure the effective inspection and control of premises used in connection with fishing activities and subsequent processing of fisheries products.
Article 107
Inspection of certain pelagic landings
For landings of herring, mackerel and horse mackerel as referred to in Title IV, Chapter II, Section 2 of this Regulation the competent authorities of a Member State shall ensure that at least 15 % of the quantities of this fish landed and at least 10 % of the landings of this fish are inspected.
Section 4
Transport inspections
Article 108
General principles
1. Without prejudice to provisions contained in multi-annual plans, transport inspections may take place anywhere and at anytime from the point of landing to the arrival of the fisheries products at the place of sale or processing. In carrying out inspections, the necessary measures shall be taken as to ensure the maintenance of the cold chain of the fisheries products inspected.
2. Without prejudice to provisions contained in multi-annual plans and national control programmes or specific control and inspection programmes, transport inspections shall include, wherever possible, a physical examination of the products transported.
3. The physical examination of the transported fishery products shall involve the taking of a sample representative of the different sections of the lot or lots transported.
4. When carrying out a transport, inspection officials shall verify and note all items referred to in Article 68(5) of the Control Regulation and all appropriate items in the report module set out in Annex XXVII to this Regulation. This shall include verification that the quantities of fisheries products transported correspond to the details entered on the transport document.
Article 109
Transport vehicles sealed
1. When a vehicle or a container has been sealed to avoid manipulation of the cargo, competent authorities of Member States shall ensure that serial numbers of seals are noted on the transport document. Officials shall inspect that the seals are intact and that the serial numbers correspond with the details on the transport document.
2. Where seals are removed to facilitate inspection of the cargo before the cargo arrives at the final destination, officials shall replace the original seal with a fresh seal, recording the seal details in the transport document and the reasons for the removal of the original seal.
Section 5
Market inspections
Article 110
General principles
Officials shall verify and note all appropriate items listed in the corresponding inspection module in Annex XXVII to this Regulation when visiting cold stores, gross and retail markets, restaurants or any other premises where fish is stored and/or sold after landing has taken place.
Article 111
Additional methodologies and technologies
In addition to the items listed in Annex XXVII, Member States may make use of available methodologies and technologies for the identification and validation of fisheries products, their source or origin and the suppliers and catching vessels or production units.
Article 112
Control of fisheries products withdrawn from the market
Officials shall verify that fisheries products withdrawn from sale in accordance with Article 17 of Council Regulation (EC) No 104/2000 (32) are disposed of in accordance with the provisions of Commission Regulation (EC) No 2493/2001 (33).
CHAPTER II
Duties of operators
Article 113
General obligations of operators
1. All operators acting under the jurisdiction of a Member State may be subject to an inspection regarding their obligations under rules of the Common Fishery Policy.
2. All operators subject to an inspection shall:
(a)
facilitate and provide officials on request with the necessary information and documents, including, where possible, copies thereof, or access to relevant databases, regarding fishing activities as required to be completed and held in electronic or paper format in accordance with the rules of the Common Fisheries Policy;
(b)
facilitate access to all parts of vessels, premises and any transport means, including aircraft and hovercraft used in connection or associated with fishing and processing activities;
(c)
ensure at any moment the safety of officials, and actively assist and cooperate with the officials in the performance of their inspection duties;
(d)
not obstruct, intimidate or interfere, not cause any other person to obstruct, intimidate or interfere, and prevent any other person to obstruct, intimidate or interfere with officials carrying out the inspection;
(e)
provide, where possible, a meeting facility in isolation for a briefing of officials by a control observer as referred to in Article 95(2) of this Regulation.
Article 114
Obligations of the master during inspections
1. The master of a fishing vessel which is being inspected or his representative shall:
(a)
facilitate safe and effective boarding of officials in accordance with good seamanship when the appropriate signal of the International Code of Signals is given or when the intention to board is established through radio communication by a vessel or helicopter carrying an official;
(b)
provide a boarding ladder meeting the requirements of Annex XXIX to facilitate safe and convenient access to any vessel which requires a climb of 1,5 metres or more;
(c)
facilitate the officials to perform their inspection duties, providing such assistance as is requested and is reasonable;
(d)
permit the official(s) to communicate with the authorities of the flag State, the coastal State and the inspecting State;
(e)
alert officials to particular safety hazards on board fishing vessels;
(f)
provide access by officials to all areas of the vessel, all processed or unprocessed catches, all fishing gears and all relevant information and documents;
(g)
facilitate safe disembarkation by officials on completion of the inspection.
2. Masters shall not be required to reveal commercially sensitive information over open radio channels.
CHAPTER III
Inspection report
Article 115
Common rules concerning inspection reports
1. Without prejudice to special rules in the framework of Regional Fisheries Management Organisations, inspection reports as referred to in Article 76 of the Control Regulation shall include the relevant information contained in the appropriate module established in Annex XXVII. The reports shall be completed by officials during the inspection or as soon as possible after the completion of the inspection.
2. When an apparent infringement is detected in the course of an inspection, the legal and material elements together with any other information relevant to the infringement shall be included in the inspection report. When several infringements are detected in the course of an inspection, relevant elements of each infringement shall be noted in the inspection report.
3. Officials shall communicate their findings to the natural person in charge of the fishing vessel, vehicle, aircraft, hovercraft or premises being inspected (operator) at the end of the inspection. The operator shall have the possibility to comment on the inspection and its findings. Comments by the operator shall be noted in the inspection report. In case where officials do not speak the same language as the inspected operator, they shall take appropriate measures to make understandable their findings.
4. If required, the operator shall have the right to contact his representative or the competent authorities of his flag State, if serious difficulties arise regarding comprehension of the outcomes of the inspection and of the ensuing report.
5. The format for electronic transmission referred to in Article 76(1) of the Control Regulation shall be decided after consultation between the Member States and the Commission.
Article 116
Completion of inspection reports
1. When the inspection report is established manually on a paper format, it shall be legible, indelible and clearly recorded. No entry in the report shall be erased or altered. If a mistake is made in a manually established report, the incorrect entry shall be struck out neatly and shall be initialled by the official concerned.
2. The official responsible for the inspection shall sign the report. The operator shall be invited to sign the report. Without prejudice to national law his/her signature shall constitute an acknowledgement of the report and shall not be regarded as an acceptance of the contents therein.
3. Officials may establish inspection reports referred to in Article 115 of this Regulation by electronic means.
Article 117
Copy of the inspection report
A copy of the inspection report referred to in Article 116 of this Regulation shall be sent to the operator no later than 15 working days after the completion of the inspection and in accordance with the national law of the Member State having sovereignty or jurisdiction at the place of inspection. If an infringement is detected, disclosure of the report shall be subject to the laws on disclosure of information in the Member State concerned.
CHAPTER IV
Electronic database
Article 118
Electronic database
1. Member States shall include in their national control programmes procedures on the recording by their officials of inspection reports in a paper or an electronic format. These reports shall be entered into the electronic database referred to in Article 78 of the Control Regulation and provide for the functionalities referred to in Annex XXIV No. 2 to this Regulation. The minimum information contained in the electronic database shall be those items noted in accordance with Article 115(1) of this Regulation and indicated as compulsory in Annex XXVII. Paper inspection reports shall also be scanned into the database.
2. The database shall be accessible for the Commission and the body designated by it, in accordance with the procedures described in Articles 114, 115 and 116 of the Control Regulation. The relevant data in the database shall also be accessible to other Member States in the context of a joint deployment plan.
3. The data from the inspection reports shall be kept available in the database for at least 3 years.
CHAPTER V
Union inspectors
Article 119
Notification of Union inspectors
1. Member States and the European Fisheries Control Agency shall notify the Commission electronically within 3 months after the entry into force of this Regulation of the names of their officials to be included in the list of Union inspectors referred to in Article 79 of the Control Regulation.
2. Officials to be included in the list shall:
(a)
have a thorough experience in the field of fisheries control and inspection;
(b)
have an in-depth knowledge of fisheries legislation of the European Union;
(c)
have a thorough knowledge of one of the official languages of the European Union and a satisfactory knowledge of a second;
(d)
be physically fit to perform their duties;
(e)
have, where appropriate, received the necessary training with regard the safety at sea.
Article 120
List of Union inspectors
1. On the basis of the notifications of Member States and the European Fisheries Control Agency the Commission shall adopt a list of Union inspectors 6 months after the entry into force of this Regulation.
2. After the establishment of the initial list, Member States and the European Fisheries Control Agency shall notify to the Commission by October each year any amendment to the list which they wish to introduce for the following calendar year. The Commission shall amend the list accordingly by 31 December each year.
3. The list and amendment thereto shall be published on the official website of the European Fisheries Control Agency.
Article 121
Communication of Union inspectors to Regional Fisheries Management Organisations
The body designated by the Commission shall communicate to the secretariat of a Regional Fisheries Management Organisation the list of Union inspectors who are to carry out inspections in the framework of that Organisation.
Article 122
Powers and duties of Union inspectors
1. In the accomplishment of their tasks Union inspectors shall comply with the law of the European Union and, as far as applicable, the national law of the Member State where the inspection takes place or, where the inspection is carried out outside EU waters, of the flag Member State of the inspected fishing vessel and relevant international rules.
2. Union inspectors shall present a service card stating their identity and the capacity under which they operate. For this purpose they shall be provided with an identification document issued by the Commission or the European Fisheries Control Agency stating their identity and capacity.
3. Member States shall facilitate the execution of duties by Union inspectors and shall afford them such assistance as they need to fulfil their tasks.
4. Competent authorities of Member States may permit Union inspectors to assist national inspectors in the execution of their duties.
5. Articles 113 and 114 of this Regulation shall apply in a corresponding manner.
Article 123
Reports
1. Union inspectors shall submit a daily summary on their inspection activities, including the name and identification number of each fishing vessel or craft inspected and the type of inspection carried out, to the competent authorities of the Member State in whose waters the inspection took place or, where the inspection was carried outside EU waters, to the flag Member State of the inspected EU fishing vessel, and the European Fisheries Control Agency.
2. If Union inspectors detect an infringement in the course of an inspection, they shall without delay submit a summarised inspection report to the competent authorities of the coastal Member State or, where the inspection was carried outside EU waters, to competent authorities of the flag State of the inspected fishing vessel and the European Fisheries Control Agency. Such summarised inspection report shall specify at least the date and place of the inspection, identification of the inspection platform, identification of the inspected target and type of infringement detected.
3. Union inspectors shall submit a copy of the full inspection report noting the relevant items in the appropriate inspection module of the inspection report in Annex XXVII to the competent authorities of the flag State of the inspected fishing vessel or craft and of the Member State in whose waters the inspection took place, within 7 days from the date of inspection. If the Union inspectors have detected an infringement, a copy of the full inspection report shall also be sent to the European Fisheries Control Agency.
4. Daily reports and inspection reports referred to in this Article shall be transmitted, upon request, to the Commission.
Article 124
Follow-up of reports
1. Member States shall act on reports submitted by the Union inspectors in accordance with Article 123 of this Regulation in the same way as they act on reports from their own officials.
2. The Member State that nominated the Union inspector or, where appropriate, the Commission or the European Fisheries Control Agency shall cooperate with the Member State acting on a report submitted by the Union inspector in order to facilitate judicial and administrative proceedings.
3. On request, a Union inspector shall assist and give evidence in infringement proceedings undertaken by any Member State.
TITLE VII
ENFORCEMENT
POINT SYSTEM FOR SERIOUS INFRINGEMENTS
Article 125
Setting up and operation of a point system for serious infringements
Each Member State shall designate the competent national authorities which shall be responsible for:
(a)
setting up the system for the attribution of points for serious infringements, as referred to in Article 92(1) of the Control Regulation;
(b)
assigning the appropriate numbers of points to the holder of a fishing licence;
(c)
transferring assigned points to any future holder of a fishing licence for the fishing vessel concerned where the latter is sold, transferred or otherwise changes ownership; and
(d)
keeping relevant records of the points assigned or transferred to the holder for each fishing licence.
Article 126
Assignation of points
1. The number of points for serious infringements shall be assigned in accordance with Annex XXX to the holder of the fishing licence for the fishing vessel concerned by the competent authority of the flag Member State.
2. When two or more serious infringements by the same natural or legal person holding the licence are detected in the course of one inspection, points in respect of each serious infringement concerned shall be assigned to the holder of the fishing licence referred to in paragraph 1 up to a maximum of 12 points.
3. The holder of the fishing licence shall be informed that points have been assigned to him.
4. The points are assigned to the holder of the licence on the date set in the decision assigning them. Member States shall ensure that the application of national rules concerning the suspensory effects of review proceedings do not render the point system ineffective.
5. Where the serious infringement is detected in a Member State other than the flag Member State, the points shall be assigned by the competent authorities of the flag Member State referred to in Article 125 of this Regulation upon notification pursuant to Article 89(4) of the Control Regulation.
Article 127
Notification of decisions
If the authority designated in accordance with Article 125 of this Regulation is not the same as the single authority referred to in Article 5(5) of the Control Regulation, the latter shall be informed of any decision taken pursuant to this Title.
Article 128
Transfer of ownership
When the fishing vessel is offered for sale or for other type of transfer of ownership, the holder of the fishing licence shall inform any potential future licence holder of the number of points which are still assigned to him by means of a certified copy obtained from the competent authorities.
Article 129
Suspension and permanent withdrawal of a fishing licence
1. The accumulation of 18, 36, 54, 72 points by the holder of a fishing licence shall automatically trigger the first, second, third and fourth suspension of the fishing licence respectively for the relevant periods referred to in Article 92(3) of the Control Regulation.
2. The accumulation of 90 points by the holder of a fishing licence shall trigger automatically the permanent withdrawal of the fishing licence.
Article 130
Follow-up of suspension and permanent withdrawal of fishing licence
1. If a fishing licence is suspended or permanently withdrawn in accordance with Article 129 of this Regulation, the competent authority of the flag Member State shall inform the holder of the fishing licence immediately of this suspension or permanent withdrawal.
2. Upon receiving the information referred to in paragraph 1 the holder of the fishing licence shall ensure that the fishing activity of the vessel concerned ceases immediately. He shall ensure that it proceeds immediately to its home port or a port indicated by the competent authorities of the flag Member State. During the voyage the fishing gear shall be lashed and stowed in accordance with Article 47 of the Control Regulation. The holder of the fishing licence shall ensure that any catch on board the fishing vessel is dealt with in accordance with the instructions of the competent authorities of the flag Member State.
Article 131
Deletion of fishing licences from relevant lists
1. If the fishing licence is suspended or withdrawn permanently in accordance with Article 129(1) or (2) of this Regulation, the fishing vessel to which the suspended or permanently withdrawn fishing licence relates shall be identified as being without fishing licence in the national register referred to in Article 15(1) of Regulation (EC) No 2371/2002. This fishing vessel shall also be identified in this way in the EU fishing fleet register referred to in Article 15(3) of Regulation (EC) No 2371/2002.
2. The permanent withdrawal of a fishing licence in accordance with Article 129(2) of this Regulation shall not affect the reference levels of the Member State issuing the licence as referred to in Article 12 of Regulation (EC) No 2371/2002.
3. The competent authorities of Member States shall immediately update the list referred to in Article 116(1)(d) of the Control Regulation with an indication of all points assigned and resulting suspensions and permanent withdrawals of fishing licences, including the date on which they became applicable and their duration.
Article 132
Illegal fishing during the suspension period or after the permanent withdrawal of a fishing licence
1. If a fishing vessel, the fishing licence of which is suspended or has been permanently withdrawn in accordance with Article 129 of this Regulation, carries out fishing activities during the suspension period or after the permanent withdrawal of the fishing licence, the competent authorities shall take immediate enforcement measures in accordance with Article 91 of the Control Regulation.
2. The fishing vessel referred to in paragraph 1 may, where appropriate, be included the EU IUU vessel list in accordance with Article 27 of Regulation (EC) No 1005/2008.
Article 133
Deletion of points
1. If a fishing licence has been suspended in accordance with Article 129 of this Regulation, the points on the basis of which the fishing licence has been suspended shall not be deleted. Any new points assigned to the holder of the fishing licence shall be added to existing points for the purpose of Article 129 of this Regulation.
2. For the application of Article 92(3) of the Control Regulation, if points have been deleted in accordance with Article 92(4) of the Control Regulation the holder of fishing licence shall be considered as if his fishing licence had not been suspended in accordance with Article 129 of this Regulation.
3. Two points shall be deleted provided that the total amount of points assigned to the holder of the fishing licence for the fishing vessel concerned exceeds two, if:
(a)
the fishing vessel which has been used in committing the infringement for which points were assigned uses thereafter VMS or records and transmits thereafter fishing logbook, transhipment and landing declaration data electronically without being legally subject to these technologies; or
(b)
the holder of the fishing licence volunteers after the assignation of points to take part in a scientific campaign for the improvement of the selectivity of the fishing gear; or
(c)
the holder of the fishing licence is a member of a producer organisation and the holder of the fishing licence accepts a fishing plan adopted by the producer organisation in the year following the assignation of the points involving a reduction of 10 % of the fishing opportunities for the holder of the fishing licence; or
(d)
the holder of the fishing licence joins a fishery covered by an eco-labelling scheme that is designed to certify and promote labels for products from well-managed marine capture fisheries and focus on issues related to the sustainable use of fisheries resources.
For each 3-year period since the date of the last serious infringement, the holder of a fishing licence can avail himself of one of the options under (a), (b), (c) or (d), to reduce the amount of points assigned only once, and provided that such reduction does not lead to the deletion of all points on the fishing licence.
4. If the points were deleted in accordance with paragraph 3 the holder of the fishing licence shall be informed of that deletion. The holder of the fishing licence shall also be informed of the number of points that still remain.
Article 134
Point system for masters of fishing vessels
Member States shall inform the Commission 6 months after the date of application of this Title of their national point systems for masters as referred to in Article 92(6) of the Control Regulation.
TITLE VIII
MEASURES TO ENSURE COMPLIANCE BY THE MEMBER STATES OF COMMON FISHERIES POLICY OBJECTIVES
CHAPTER I
Suspension and cancellation of Union financial assistance
Article 135
Definition
For the purpose of this Chapter the following definitions shall apply:
(1)
‘payment’ means any financial contribution to be paid out by the Commission following a payment request submitted by a Member State during or at the end of the implementation of an operational programme under Regulation (EC) No 1198/2006 or of a project covered by Article 8(a) of Regulation (EC) No 861/2006;
(2)
‘interruption’ means disrupting the running of the payment’s deadline;
(3)
‘suspension’ means suspension of the payments pursuant to specific payment requests as referred to in Article 103(1) of the Control Regulation;
(4)
‘cancellation’ means annulling all or part of the suspended Union contribution to an operational programme under Regulation (EC) No 1198/2006 or to a specific project covered by Article 8(a) of Regulation (EC) No 861/2006.
Article 136
Interruption of the payment deadline
1. The deadline for a payment may be interrupted by the authorising officer by delegation as defined in Council Regulation (EC, Euratom) No 1605/2002 (34) for a maximum period of 6 months if:
(a)
there are findings of non-compliance with CFP rules; or
(b)
the authorising officer by delegation has to carry out additional verifications following findings indicating that there are failures in the control system of a Member State and/or non-compliance with CFP rules of fishery and fishery-related activities.
2. The concerned Member State shall be informed in writing as referred to in Article 103(3) of the Control Regulation of the reasons for the interruption of the payment deadline. It shall be asked to communicate to the Commission within 1 month of receipt of that letter the remedial actions taken and/or information concerning the financial assistance granted to the fisheries related activities subject matter of the non-compliance as set out in Annex XXXI to this Regulation.
3. Where the Member State concerned does not respond to the Commission’s request within the period mentioned in paragraph 2, or where it provides an unsatisfactory response, the Commission may send a reminder allowing an additional period of maximum 15 days.
4. The interruption shall be ended where the Member State demonstrates in its reply that it has taken remedial actions to ensure compliance with CFP rules or that the findings indicating that there are failures in its control system and/or non-compliance with CFP rules of fishery and fishery-related activities were unfounded.
Article 137
Suspension of payments
1. 1. Where the Member State concerned does not respond to the Commission’s request within the period mentioned in Article 136 of this Regulation, or where it provides an unsatisfactory response, the Commission may adopt on the basis of the information available at that time a decision to suspend all or part of payments of the Union financial assistance to that Member State (hereinafter referred to as ‘suspension decision’) as referred to in Article 103(1) of the Control Regulation.
2. The suspension decision shall summarise the relevant issues of fact and law, shall include the assessment of the Commission with regard to the conditions referred to in Article 103(1) and (6) of the Control Regulation and shall set the part of the payment that is suspended. The suspension decision shall call upon the Member State concerned to take remedial actions within a prescribed period which shall not exceed 6 months.
3. The amount of payments to be suspended shall be decided by applying a rate which shall be determined taking into account the criteria set in Article 103(5) of the Control Regulation.
Article 138
Cancellation of financial assistance
1. Where, during the suspension period, the Member State still fails to demonstrate that it has corrected the situation which led to the suspension decision, as referred to in Article 103(2) of the Control Regulation, the Commission may inform it of its intention to adopt a cancellation decision. Article 136(2) and (3) of this Regulation shall apply in a corresponding manner.
2. Where the Member State concerned does not respond to the Commission’s request referred to in paragraph 1, or where it provides an unsatisfactory response, the Commission may adopt on the basis of the information available at that time a decision to cancel all or part of suspended payments to that Member State.
3. The cancellation decision referred to in paragraph 2 may include the recovery of part of or all of the advance, if any, on the financial contribution already paid for in relation to the projects covered by Article 8(a) of Regulation (EC) No 861/2006 for which payments were suspended.
4. The amount of the suspended payments to be cancelled shall be decided by applying a rate which shall be determined taking into account the criteria set in Article 103(5) of the Control Regulation.
5. The amount of the advance on the financial contribution to be recovered on projects for which payments were suspended shall be repaid to the Commission by a recovery procedure as set in Article 28(2) of Regulation (EC) No 861/2006 and Article 72 of Regulation (EC, Euratom) No 1605/2002.
CHAPTER II
Deduction of fishing opportunities
Article 139
General rules for the deduction of fishing opportunities for excess of utilisation
1. The size of the excess of utilisation of fishing opportunities with respect to available quotas and fishing effort established for a given period, as referred to in Articles 105(1) and 106(1) of the Control Regulation, shall be determined on the basis of the figures available on the 15th day of the second month after the expiration of the regulated period.
2. The size of the excess of utilisation of fishing opportunities shall be determined with respect to the fishing opportunities available at the end of each given period to the Member State concerned taking into account exchanges of fishing opportunities in accordance with Article 20(5) of Regulation (EC) No 2371/2002, quota transfers in accordance with Article 4(2) of Council Regulation (EC) No 847/96 (35), reallocation of available fishing opportunities in accordance with Article 37 of the Control Regulation, and deduction of fishing opportunities in accordance with Articles 105, 106 and 107 of the Control Regulation.
3. The exchange of fishing opportunities in accordance with Article 20(5) of Regulation (EC) No 2371/2002 for a given period shall not be allowed after the last day of the first month after the expiration of that period.
Article 140
Consultation on the deduction of fishing opportunities
For deductions of fishing opportunities in accordance with Article 105(4) and (5) and Article 106(3) of the Control Regulation, the Commission shall consult the Member State concerned on suggested measures. The Member State concerned shall respond within 10 working days to this consultation by the Commission.
CHAPTER III
Deduction of quotas for failure to comply with the rules of the common fisheries policy
Article 141
Rules for deduction of quotas for failure to comply with the objectives of the Common Fisheries Policy
1. The deadline for the Member State to demonstrate that the fisheries can be safely exploited, referred to in Article 107(2) of the Control Regulation, shall apply from the date of the Commission’s letter to the Member State.
2. Member States shall include, in their reply pursuant to Article 107(2) of the Control Regulation, material evidence that is capable of demonstrating to the Commission that the fishery can be safely exploited.
Article 142
Determination of the quantities to be deducted
1. Any deduction of quotas in accordance with Article 107 of the Control Regulation shall be proportionate to the extent and the nature of non-compliance with rules on stocks subject to multi-annual plans and gravity of the threat to the conservation of these stocks. It shall take into account the damage caused to these stocks by the non-compliance with rules on stocks subject to multi-annual plans.
2. If a deduction according to paragraph 1 cannot be operated on the quota, allocation or share of a stock or group of stocks to which the non-compliance refers because a quota, allocation or share of a stock or group of stocks in question is not or not sufficiently available to the Member State concerned, the Commission, after consultation of the Member State concerned, may deduct in the following year or years quotas for other stocks or groups of stocks available to that Member States in the same geographical area, or with the same commercial value in accordance with paragraph 1.
TITLE IX
DATA AND INFORMATION
CHAPTER I
Analysis and audit of data
Article 143
Subject matter
The computerised validation system referred to in Article 109(1) of the Control Regulation shall comprise in particular:
(a)
a database or databases storing all data to be validated by this system, as referred to in Article 144 of this Regulation;
(b)
validation procedures including data quality checks, analysis and cross-checks of all these data, as referred to in Article 145 of this Regulation;
(c)
procedures for the access to all these data by the Commission or a body designated by it, as referred to in Article 146 of this Regulation.
Article 144
Data to be validated
1. For the purpose of the computerised validation system, Member States shall ensure that all data referred to in Article 109(2) of the Control Regulation, are stored in a computerised database or databases. The minimum elements to be included are the items listed in Annex XXIII, those indicated as compulsory in Annex XXVII, the items in Annex XII and the items in Annex XXXII. The validation system may also take into account any other data deemed necessary for the purpose of the validation procedures.
2. The data in the databases referred to in paragraph 1 shall be accessible for the validation system on a continuous basis and in real-time. The validation system shall have direct access to all these databases without any human intervention. To this end all databases or systems in a Member State containing the data referred to in paragraph 1 shall be linked with each other.
3. If the data referred to in paragraph 1 are not stored automatically in a database, Member States shall foresee the manual entry or digitising into the databases, without delay and by respecting the deadlines set in the relevant legislation. The date of data receipt and data entry shall be correctly recorded in the database.
Article 145
Validation procedures
1. The computerised validation system shall validate each dataset referred to in Article 144(1) of this Regulation on the basis of automated computerised algorithms and procedures in a continuous, systematic and thorough manner. The validation shall contain procedures to control the basic data quality, to check the data format and the minimal data requirements, as well as more advanced verification by analysing several records of a dataset into detail, using statistical methods, or cross-checking data from different sources.
2. For each validation procedure, there shall be a business rule or a set of business rules that defines which validations are executed by the procedure, as well as where the results of these validations are stored. Where applicable, the relevant reference to the legislation whose application is being verified shall be indicated. The Commission may define after consultation with Member States a standard set of business rules to be used.
3. All results of the computerised validation system, both positive and negative, shall be stored in a database. It shall be possible to identify immediately any inconsistency and non-compliance issue detected by the validation procedures, as well as the follow-up of these inconsistencies. It shall also be possible to retrieve the identification of fishing vessels, vessel masters or operators for which inconsistencies and possible non-compliance issues were detected repeatedly in the course of the past 3 years.
4. The follow-up of the inconsistencies detected by the validation system shall be linked with the validation results, indicating the date of validation and follow-up.
If the detected inconsistency is identified as the result of a wrong data entry, that data entry shall be corrected in the database, clearly marking the data as being corrected, as well as reporting the original value or entry and the reason for correcting the data.
If the detected inconsistency leads to a follow-up, the validation result shall contain a link to the inspection report, where appropriate, and the follow-up of it.
Article 146
Access by the Commission
1. Member States shall ensure that the Commission or the body designated by it have at any time real-time access to:
(a)
all the data referred in Article 144(1) of this Regulation;
(b)
all business rules defined for the validation system, containing the definition, the relevant legislation and the place where the validation results are stored;
(c)
all validation results and follow-up measures, with a marker if the data item has been corrected, and with a link to infringement procedures if applicable.
2. Member States shall ensure that the data referred to in paragraph 1(a), (b) and (c) can be accessed by the automated exchange of data via secure web services, as defined in Article 147 of this Regulation.
3. The data shall be made available for download according to the data exchange format and all data elements as defined in Annex XII and in the XML format. Other data items that shall be accessible and are not defined in Annex XII shall be available in the format as defined in Annex XXXII.
4. The Commission or the body designated by it shall be given the possibility to download the data referred to in paragraph 1 for any period and any geographical area for an individual fishing vessel or list of fishing vessels.
5. At the reasoned request of the Commission the Member State concerned shall correct without delay data for which the Commission has identified inconsistencies. The Member State concerned shall inform other relevant Member States about this correction without delay.
CHAPTER II
Websites of Member States
Article 147
Operation of websites and web services
1. For the purpose of the official websites referred to in Articles 115 and 116 of the Control Regulation Member States shall create web services. These web services shall generate real-time and dynamic content for the official websites and they shall provide automated access to the data. If necessary, Member States shall adapt their existing databases or create new databases in order to provide the required content of the web services.
2. This web services shall enable the Commission and the body designated by it to pull all available data referred to in Articles 148 and 149 of this Regulation at any time. That automated pulling mechanism shall be based on the electronic information exchange protocol and format referred to Annex XII. Web services shall be created according to international standards.
3. Every subpage of the official website referred to in paragraph 1 shall contain a menu at the left side where hyperlinks to all other subpages are listed. It shall also contain the definition of the related web service at the bottom of the subpage.
4. Web services and websites shall be deployed in a centralised manner, providing only one unique access point per Member State.
5. The Commission may lay down common standards, technical specifications and procedures for the website’s interface, technically compatible computerised systems and web services among Member States, the Commission and the body designated by it. The Commission shall coordinate the process to create those specifications and procedures after consultation with the Member States.
Article 148
Publicly accessible website and web services
1. The publicly accessible part of the website shall contain an overview page and different subpages. The public overview page shall list hyperlinks containing the references in Article 115(a) to (g) of the Control Regulation and referring to subpages providing the information referred to in that Article.
2. Each public subpage shall contain at least one of the information items listed in Article 115(a) to (g) of the Control Regulation. Subpages, as well as the related web services, shall contain at least the information set out in Annex XXXIII.
Article 149
Secured website and web services
1. The secure part of the website shall contain an overview page and different subpages. The secure overview page shall list hyperlinks containing the references in Article 116(1)(a) to (h) of the Control Regulation and referring to subpages providing the information referred to in that Article.
2. Each secure subpage shall contain at least one of the information items listed in Article 116(1)(a) to (h) of the Control Regulation. Subpages, as well as the related web services, shall contain at least the information set out in Annex XXIV.
3. Both the secure website as the secure web services shall make use of electronic certificates referred to in Article 116(3) of the Control Regulation.
TITLE X
IMPLEMENTATION
CHAPTER I
Mutual assistance
Section 1
General provisions
Article 150
Scope
1. This Chapter lays down the conditions under which the Member States shall administratively cooperate with each other, with third countries, with the Commission and with the body designated by it in order to ensure the effective application of the Control Regulation and of this Regulation. It does not prevent Member States to establish other forms of administrative cooperation.
2. This Chapter shall not bind Member States to grant each other assistance where that would be likely to be injurious to their national legal system, public policy, security or other fundamental interests. Before denying a request for assistance, the requested Member State shall consult the applicant Member State to determine whether assistance may be given in part, subject to specific terms and conditions. Where a request for assistance cannot be complied with the applicant Member State and the Commission or the body designated by it shall promptly be notified of that fact and reasons shall be stated.
3. This Chapter shall not affect the application in the Member States of rules on criminal procedure and mutual assistance in criminal matters, including those on secrecy of judicial inquiries.
Article 151
Costs
Member States shall bear their own costs of executing a request for assistance and shall waive all claims for the reimbursement of expenses incurred in applying this Title.
Article 152
Single authority
The single authority referred to in Article 5(5) of the Control Regulation shall act as a single liaison office responsible for the application of this Chapter.
Article 153
Follow up measures
1. Where national authorities decide, in response to a request for assistance based on this Chapter or following a spontaneous exchange of information, to take measures which may be implemented only with the authorisation or at the demand of a judicial authority, they shall communicate to the Member State concerned and the Commission or the body designated by it any information on those measures which is related to non-compliance with rules of the Common Fisheries Policy.
2. Any such communication must have the prior authorisation of the judicial authority if such authorisation is required by national law.
Section 2
Information without prior request
Article 154
Information without prior request
1. When a Member State becomes aware of any potential non-compliance with the rules of the Common Fisheries Policy, in particular serious infringement referred to in Article 90(1) of the Control Regulation or reasonably suspects that such an infringement may occur, it shall notify the other Member States concerned and the Commission or the body designated by it, without delay. That notification shall supply all necessary information and shall be made via the single authority as referred to in Article 152 of this Regulation.
2. When a Member State takes enforcement measures in relation to a non-compliance or an infringement referred to in paragraph 1, it shall notify the other Member States concerned and the Commission or the body designated by it via the single authority as referred to in Article 152 of this Regulation.
3. All notifications according to this Article shall be made in writing.
Section 3
Requests for assistance
Article 155
Definition
For the purpose of this Section ‘request for assistance’ means a request addressed by one Member State to another Member State or by the Commission or the body designated by it to a Member State for:
(a)
information including information according to Article 93(2) and (3) of the Control Regulation;
(b)
enforcement measures; or
(c)
administrative notification.
Article 156
General requirements
1. The applicant Member State shall ensure that all requests for assistance contain sufficient information to enable a requested Member State to fulfil the request, including any necessary evidence obtainable in the territory of the applicant Member State.
2. Requests for assistance shall be limited to substantiated cases where there is reasonable cause to believe that non-compliance with rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation have occurred and where the applicant Member State is not able to obtain the requested information or to take the requested measures by its own means.
Article 157
Transmission of requests and replies
1. Requests shall only be sent by the single authority of the applicant Member State, by the Commission or the body designated by it to the single authority of the requested Member State. All replies to a request shall be communicated in the same way.
2. Requests for mutual assistance and the respective replies shall be made in writing.
3. The languages used for requests and replies shall be agreed by the single authorities concerned before requests are made. If no agreement can be reached, requests shall be communicated in the official language(s) of the applicant Member State and replies in the official language(s) of the requested Member State.
Article 158
Requests for information
1. A Member State shall, at the request of an applicant Member State, of the Commission or the body designated by it, supply any relevant information required to establish whether non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation, have occurred or to establish whether there is a reasonable suspicion it may occur. That information shall be supplied via the single authority as referred to in Article 152 of this Regulation.
2. The requested Member State shall, at the request of the applicant Member State, of the Commission or the body designated by it, carry out the appropriate administrative enquiries concerning operations which constitute or appear to the applicant to constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation The requested Member State shall communicate the results of such administrative enquiries to the applicant Member State and to the Commission or the body designated by it.
3. At the request of the applicant Member State, of the Commission or the body designated by it, the requested Member State may permit a competent official of the applicant Member State to accompany the officials of the requested Member State, the Commission or the body designated by it, in the course of administrative enquiries referred to in paragraph 2. In so far as national provisions on criminal proceedings restrict certain acts to officials specifically designated by national law, the officials of the applicant Member State shall not take part in such acts. In no event, shall they participate in searches of premises or the formal questioning of persons under criminal law. The officials of the applicant Member States present in the requested Member State must at all time be able to present written authority stating their identity and their official functions.
4. At the request of the applicant Member State, the requested Member State shall supply it with any document or certified true copies in its possession which relates to non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation.
5. The standard form for the exchange of information on request is set out in Annex XXXIV.
Article 159
Requests for enforcement measures
1. A requested Member State shall, based on the evidence referred to in Article 156 of this Regulation, at the request of an applicant Member State, of the Commission or the body designated by it, take all necessary enforcement measures to bring about the cessation, within its territory or within maritime waters under its sovereignty or jurisdiction, of any non-compliance with the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation without delay.
2. The requested Member State may consult the applicant Member State, the Commission or the body designated by it in the course of taking the enforcement measures referred to in paragraph 1.
3. The requested Member State shall report the measures taken and their effect to the applicant Member State, the other Member States concerned, the Commission or the body designated by it, via the single authority as referred to in Article 152 of this Regulation.
Article 160
Deadline for replies to requests for information and enforcement measures
1. The requested Member State shall provide the information referred to in Articles 158(1) and 159(3) of this Regulation as quickly as possible, but not later than 4 weeks following the date of receipt of the request. Different time limits may be agreed between the requested and the applicant Member State, the Commission or the body designated by it.
2. Where the requested Member State is unable to respond to the request by the deadline, it shall inform the applicant Member State, the Commission or the body designated by it in writing of the reason for its failure to do so, and indicate when it considers it will be able to respond.
Article 161
Requests for administrative notification
1. A requested Member State shall, at the request of an applicant Member State and in accordance with its national rules governing the notification of similar instruments and decisions, notify the addressee of all instruments and decisions taken in the field covered by the Common Fisheries Policy, in particular on issues regulated under the Control Regulation or this Regulation which emanate from the administrative authorities of the applicant Member State and are to be served in the territory of the requested Member State.
2. Requests for notification shall be made using the standard form attached to this Regulation in Annex XXXV.
3. The requested Member State shall transmit its reply to the applicant Member State immediately after the notification via the single authority referred to in Article 152 of this Regulation. The reply shall be made using the standard form set out in Annex XXXVI.
Section 4
Relations with the Commission or the body designated by it
Article 162
Communication between the Member States and the Commission or the body designated by it
1. Each Member State shall communicate to the Commission or the body designated by it as soon as it is available to it any information it considers relevant concerning methods, practices or revealed tendencies used or suspected of having been used in cases of non-compliance with the rules of the Common Fisheries Policy, in particular in serious infringements as referred to in Article 90(1) of the Control Regulation.
2. The Commission or the body designated by it shall communicate to the Member States, as soon as it becomes available to it, any information that would help them in the enforcement of the Control Regulation or of this Regulation.
Article 163
Coordination by the Commission or the body designated by it
1. Where a Member State becomes aware of operations which constitute, or appear to constitute, non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements referred to in Article 90(1) of the Control Regulation, and which are of particular relevance at Union level, it shall communicate to the Commission or the body designated by it as soon as possible any relevant information needed to determine the facts. The Commission or the body designated by it shall convey that information to the other Member States concerned.
2. For the purposes of paragraph 1, operations which constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation shall be deemed to be of particular relevance at the level of the European Union especially where:
(a)
they have, or might have, connections in one or more Member States; or
(b)
it appears likely to the Member State that similar operations have also been carried out in other Member States.
3. Where the Commission or the body designated by it considers that operations which constitute non-compliance with the rules of the Common Fisheries Policy, in particular serious infringements as referred to in Article 90(1) of the Control Regulation have taken place in one or more Member States, it shall inform the Member States concerned thereof which shall as soon as possible carry out enquiries. The Member States concerned shall, as soon as possible, communicate to the Commission or the body designated by it the findings of those enquiries.
Section 5
Relations with third countries
Article 164
Information exchange with third countries
1. When a Member State receives information from a third country or a Regional Fisheries Management Organisation which is relevant for the effective application of the Control Regulation and this Regulation, it shall communicate that information via the single authority to the other Member States concerned, to the Commission or the body designated by it, in so far as it is permitted to do so by bilateral agreements with that third country or the rules of that Regional Fisheries Management Organisation.
2. Information received under this Chapter may be communicated to a third country or a Regional Fisheries Management Organisation by a Member State via its single authority under a bilateral agreement with that third country or in accordance with the rules of that Regional Fisheries Management Organisation. That communication shall take place after consultation of the Member State that originally communicated the information and in accordance with EU and national legislation regarding the protection of individuals with regard to the processing of personal data.
3. The Commission or the body designated by it may, in the framework of fisheries agreements concluded between the Union and third countries or in the framework of Regional Fisheries Management Organisations or similar arrangements to which the Union is a Contracting Party or a non-contracting Cooperating Party, communicate relevant information concerning non-compliance with of the rules of the Common Fisheries Policy or serious infringements referred to in Article 90(1) of the Control Regulation to other parties to those agreements, organisations or arrangements, subject to the consent of the Member State that supplied the information.
CHAPTER II
Reporting obligations
Article 165
Format and deadlines for reports
1. For the 5 years-report as referred to in Article 118(1) of the Control Regulation Member Sates shall use the data defined in Annex XXXVII.
2. The report stating the rules that have been used for producing reports on basic data as referred to in Article 118(4) of the Control Regulation shall be sent 6 months after the entry into force of this Regulation. Member States shall send a new report when these rules are modified.
TITLE XI
FINAL PROVISIONS
Article 166
Repeals
1. Regulations (EEC) No 2807/83, (EEC) No 3561/85, (EEC) No 493/87, (EEC) No 1381/87, (EEC) No 1382/87, (EEC) No 2943/95, (EC) No 1449/98, (EC) No 2244/2003, (EC) No 1281/2005, (EC) No 1042/2006, (EC) No 1542/2007, (EC) No 1077/2008 and (EC) No 409/2009 shall be repealed.
2. Regulation (EC) No 356/2005 shall be repealed with effect from 1 January 2012.
3. References to the repealed Regulations shall be construed as references to this Regulation.
Article 167
Entry into force
This Regulation shall enter into force on the seventh day following its publication in the Official Journal of the European Union, except Title VII, which shall enter into force on 1 July 2011.
However, Title II, Chapter III and Title IV, Chapter 1 shall apply as from 1 January 2012. In accordance with Article 124(c) of the Control Regulation and the previous paragraph Title VII shall apply as from 1 January 2012.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at Brussels, 8 April 2011.