COUNCIL REGULATION (EU) 2021/91

of 28 January 2021

fixing, for the years 2021 and 2022, the fishing opportunities for Union fishing vessels for certain deep-sea fish stocks

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(3) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1) Article 43(3) of the Treaty provides that the Council, on a proposal from the Commission, is to adopt measures on the fixing and allocation of fishing opportunities.

(2) Regulation (EU) No 1380/2013 of the European Parliament and of the Council (1) requires that conservation measures be adopted taking into account available scientific, technical and economic advice, including, where relevant, reports drawn up by the Scientific, Technical and Economic Committee for Fisheries (STECF).

(3) It is incumbent upon the Council to adopt measures on the fixing and allocation of fishing opportunities, including certain conditions functionally linked thereto, as appropriate. Fishing opportunities should be allocated among Member States in such a way as to assure each Member State relative stability of fishing activities for each stock or fishery and having due regard to the objectives of the Common Fisheries Policy (CFP) established by Regulation (EU) No 1380/2013.

(4) The total allowable catches (‘TACs’) should be established on the basis of available scientific advice from the International Council for the Exploration of the Sea (ICES), taking into account biological and socio-economic aspects whilst ensuring fair treatment between fishing sectors, as well as in the light of the opinions expressed during the consultation of stakeholders, and in particular the advisory councils concerned.

(5) For stocks for which there is no sufficient or reliable data in order to provide size estimates, management measures and TAC levels should follow the precautionary approach to fisheries management as defined in point (8) of Article 4(1) of Regulation (EU) No 1380/2013, while taking into account stock-specific factors, including, in particular, available information on stock trends and mixed fisheries considerations.

(6) Pursuant to Article 16(4) of Regulation (EU) No 1380/2013, for stocks subject to specific multiannual plans the TACs should be established in accordance with the rules laid down in those plans. The Western Waters multiannual plan was established by Regulation (EU) 2019/472 of the European Parliament and of the Council (2) and entered into force in 2019. Since the ranges of FMSY cannot be determined for any of the stocks which are covered by this Regulation and which fall within the scope of the Western Waters multiannual plan, fishing opportunities for those stocks should be fixed in accordance with the objectives of that plan and taking into account the best available scientific advice as well as the precautionary approach to fisheries management when no adequate scientific information is available, while also taking into account the difficulty of fishing all stocks at maximum sustainable yield (MSY) at the same time, especially in situations where that leads to a premature closure of the fishery.

(7) Where a TAC relating to a stock is allocated to one Member State only, it is appropriate to empower that Member State, in accordance with Article 2(1) of the Treaty, to determine the level of such TAC. Provisions should be made to ensure that, when fixing that TAC level, the Member State concerned act in a manner fully consistent with the principles and rules of the CFP.

(8) For certain TACs, shared quotas are available for Member States without an allocated quota, indicated as ‘Others’. Member States having used such shared quota may later obtain a quota of their own, e.g. through an exchange. When reporting catches to the Commission in respect of the same TAC, Member States should make the distinction between the catches to be counted against their own quota and the catches to be counted against the shared quota. To allow such distinction, a separate reporting code should be introduced.

(9) Council Regulation (EC) No 847/96 (3) introduced additional conditions for year-to-year management of TACs, including flexibility provisions for precautionary and analytical TACs. Under that Regulation, when fixing the TACs, the Council is to decide to which stocks Article 3 or 4 of that Regulation is not to apply, in particular on the basis of the biological status of the stocks. In 2014, a further year-to-year flexibility mechanism was introduced by Article 15(9) of Regulation (EU) No 1380/2013 for all stocks that are subject to the landing obligation. Therefore, in order to avoid excessive flexibility that would undermine the principle of rational and responsible exploitation of marine biological resources, hinder the achievement of the objectives of the CFP and deteriorate the biological status of the stocks, it should be established that Articles 3 and 4 of Regulation (EC) No 847/96 apply to analytical TACs only where the year-to-year flexibility provided for in Article 15(9) of Regulation (EU) No 1380/2013 is not used.

(10) In accordance with Regulation (EU) No 1380/2013, the landing obligation applies fully from 1 January 2019 and all species subject to catch limits are to be landed. Article 16(2) of Regulation (EU) No 1380/2013 provides that, when the landing obligation in respect of a fish stock applies, fishing opportunities are to be fixed taking into account the change from fixing fishing opportunities that reflect landings to fixing fishing opportunities that reflect catches. On the basis of the joint recommendations submitted by Member States and in accordance with Article 15 of Regulation (EU) No 1380/2013 and Article 13 of Regulation (EU) 2019/472, the Commission adopted a number of delegated Regulations laying down details for the implementation of the landing obligation in the form of specific discard plans.

(11) When fixing fishing opportunities for stocks of species falling under the landing obligation, account should be taken of the fact that discarding is in principle no longer allowed. Therefore, the fishing opportunities should be based on the advice figure for total catches (instead of the advice figure for wanted catches), as provided by ICES. The amounts that, by way of exception from the landing obligation, may continue to be discarded should be deducted from that advice figure for total catches.

(12) Fixing fishing opportunities should be in accordance with international agreements and principles, such as the 1995 United Nations agreement relating to the conservation and management of straddling fish stocks and highly migratory fish stocks (4), and with the detailed management principles laid down in the International Guidelines for the Management of Deep-sea Fisheries in the High Seas adopted in 2008 by the Food and Agriculture Organization of the United Nations, according to which, in particular, a regulator should be more cautious when information is uncertain, unreliable or inadequate. The absence of adequate scientific information should not be used as a reason for postponing or failing to take conservation and management measures.

(13) Catches of red seabream (Pagellus bogaraveo) are made in the areas of the Fishery Committee for the Eastern Central Atlantic (CECAF) and General Fisheries Commission for the Mediterranean (GFCM), which border on ICES subarea 9. Given that ICES data for those adjacent areas are incomplete, the scope of the TAC should remain limited to ICES subarea 9.

(14) Since no agreement has been reached yet with the United Kingdom on TAC levels for straddling fish stocks and in order to establish an appropriate regulatory framework for Union fishing activities until decisions on joint management are taken, provisional fishing opportunities should be fixed for the first three months of 2021. Such provisional fishing opportunities should be fixed at levels that do not prejudge the outcome of the consultations with the relevant third countries and should not jeopardise the possibility of setting permanent TACs in line with scientific advice. Therefore, as a general approach, they should correspond to 25 % of the Union share of the fishing opportunities fixed for 2020. Those provisional fishing opportunities should in no circumstances stand in the way of setting definitive fishing opportunities in accordance with international agreements, in particular the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part (5), and the United Kingdom of Great Britain and Northern Ireland, of the other part, which applies provisionally from 1 January 2021, and the outcome of consultations, the Union legal framework and the scientific advice.

(15) ICES advised not to have catches of orange roughy (Hoplostethus atlanticus) until 2024. It is appropriate for the fishing, retaining on board, transhipping and landing of that species to remain prohibited, as the stock is depleted and is not recovering. ICES noted that there have been no directed Union fisheries for that species in the North-East Atlantic since 2010.

(16) ICES advised to minimise the fishing mortality of deep-sea sharks. The deep-sea sharks are long-lived species with low reproductive rates and have become overexploited. Therefore, fishing for those species should be prohibited.

(17) In order to avoid the interruption of fishing activities and to ensure the livelihood of the fishermen of the Union, this Regulation should apply from 1 January 2021. In order to allow Member States to ensure a timely application of this Regulation, it should enter into force immediately after its publication,

HAS ADOPTED THIS REGULATION:

Article 1 Subject matter This Regulation fixes, for the years 2021 and 2022, annual fishing opportunities available to Union fishing vessels for fish stocks of certain deep-sea species in Union waters and in certain non-Union waters where catch limits are required.

Article 2 Definitions For the purposes of this Regulation, the definitions referred to in Article 4 of Regulation (EU) No 1380/2013 apply. In addition, the following definitions apply: (a) ‘total allowable catch (TAC)’ means: (i) in fisheries subject to the exemption of the landing obligation referred to in Article 15(4) to (7) of Regulation (EU) No 1380/2013, the quantity of fish that may be landed from each stock each year; (ii) in all other fisheries, the quantity of fish that may be caught from each stock each year; (b) ‘quota’ means a proportion of the TAC allocated to the Union or a Member State; (c) ‘international waters’ means waters falling outside the sovereignty or jurisdiction of any State; (d) ‘analytical assessment’ means quantitative evaluations of trends in a given stock, based on data about the stock’s biology and exploitation, which scientific review has indicated to be of sufficient quality to provide scientific advice on options for future catches; (e) ‘International Council for the Exploration of the Sea (ICES) zones’ means the geographical areas specified in Annex III to Regulation (EC) No 218/2009 of the European Parliament and of the Council (6); (f) ‘Fishery Committee for the Eastern Central Atlantic (CECAF) areas’ means the geographical areas specified in Annex II to Regulation (EC) No 216/2009 of the European Parliament and of the Council (7); (g) ‘deep-sea sharks’ means the species listed in point 2 of Part 1 of the Annex to this Regulation.

Article 3 TACs and allocations 1. The TACs for deep-sea species caught by Union fishing vessels in Union waters and in certain non-Union waters, the allocation of such TACs among Member States and the conditions functionally linked thereto, where appropriate, are set out in the Annex. 2. Union fishing vessels may be authorised to fish, within the TACs set out in the Annex to this Regulation, in waters falling within the fisheries jurisdiction of the United Kingdom, subject to the conditions set out in Regulation (EU) 2017/2403 of the European Parliament and of the Council (8) and its implementing provisions.

Article 4 Fishing vessels flying the flag of the United Kingdom, registered in the United Kingdom and licensed by a fisheries administration of the United Kingdom Fishing vessels flying the flag of the United Kingdom, registered in the United Kingdom and licensed by a fisheries administration of the United Kingdom may be authorised to fish in Union waters within the TACs set out in the Annex to this Regulation, and shall be subject to the conditions set out in Regulation (EU) 2017/2403.

Article 5 TACs to be determined by Member States 1. The TAC for black scabbardfish (Aphanopus carbo) in CECAF area 34.1.2 shall be determined by Portugal. This stock is identified in the Annex. 2. The TAC to be determined by Portugal shall: (a) be consistent with the principles and rules of the CFP, in particular the principle of sustainable exploitation of the stock; and (b) result: (i) if analytical assessment is available, in the exploitation of the stock consistent with MSY from 2019 onwards, with as high a probability as possible; (ii) if analytical assessment is unavailable or incomplete, in the exploitation of the stock consistent with the precautionary approach to fisheries management. 3. By 15 March of each year, Portugal shall submit the following information to the Commission: (a) the adopted TAC; (b) the data collected and assessed by Portugal on which the adopted TAC is based; (c) details on how the adopted TAC comply with paragraph 2.

Article 6 Special provisions on the allocation of fishing opportunities 1. The allocation of fishing opportunities among Member States as set out in this Regulation shall be without prejudice to: (a) exchanges made pursuant to Article 16(8) of Regulation (EU) No 1380/2013; (b) deductions and reallocations made pursuant to Article 37 of Council Regulation (EC) No 1224/2009 (9); (c) reallocations made pursuant to Article 12(7) of Regulation (EU) 2017/2403; (d) additional landings allowed pursuant to Article 3 of Regulation (EC) No 847/96 and Article 15(9) of Regulation (EU) No 1380/2013; (e) quantities withheld in accordance with Article 4 of Regulation (EC) No 847/96 and Article 15(9) of Regulation (EU) No 1380/2013; (f) deductions made pursuant to Articles 105, 106 and 107 of Regulation (EC) No 1224/2009. 2. Stocks which are subject to precautionary or analytical TACs are identified in the Annex. 3. Article 3 of Regulation (EC) No 847/96 shall apply to stocks subject to precautionary TACs, whereas Article 3(2) and (3) and Article 4 of that Regulation shall apply to stocks subject to analytical TACs, except where otherwise specified in the Annex to this Regulation. 4. Articles 3 and 4 of Regulation (EC) No 847/96 shall not apply where a Member State uses the year-to-year flexibility provided for in Article 15(9) of Regulation (EU) No 1380/2013.

Article 7 Conditions for landing catches and by-catches Catches that are not subject to the landing obligation established in Article 15 of Regulation (EU) No 1380/2013 shall be retained on board or landed only if they: (a) have been taken by vessels flying the flag of a Member State having a quota and that quota has not been exhausted; or (b) consist of a share in a Union quota which has not been allocated by quota among Member States, and that Union quota has not been exhausted.

Article 8 Application of provisional TACs 1. Where a reference is made to this Article in a table set out in the Annex to this Regulation, the fishing opportunities in that table are provisional and shall apply from 1 January to 31 March 2021. Those provisional fishing opportunities shall be without prejudice to setting definitive fishing opportunities for 2021 and 2022 in accordance with the outcomes of international negotiations and/or consultations, the scientific advice, the applicable provisions of Regulation (EU) No 1380/2013 and relevant multiannual plans. 2. Union fishing vessels may fish for stocks subject to provisional fishing opportunities referred to in paragraph 1 in Union and international waters and in waters of third countries that have granted access to their waters for Union fishing vessels.

Article 9 Prohibition The following shall be prohibited for Union fishing vessels: (a) to fish for orange roughy (Hoplostethus atlanticus) in Union and international waters of ICES subareas 1 to 10, 12 and 14, and to retain on board, tranship or land orange roughy caught in those subareas; (b) to fish for deep-sea sharks in ICES subareas 5 to 9, in Union and international waters of ICES subarea 10, in international waters of ICES subarea 12 and in Union waters of CECAF areas 34.1.1, 34.1.2 and 34.2, and to retain on board, tranship, relocate or land deep-sea sharks caught in those areas.

Article 10 Data transmission When, pursuant to Articles 33 and 34 of Regulation (EC) No 1224/2009, Member States submit to the Commission data relating to landings of quantities of stocks caught, they shall use the stock codes set out in the Annex to this Regulation.

Article 11 Entry into force This Regulation shall enter into force on the day of its publication in the Official Journal of the European Union. It shall apply from 1 January 2021.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 28 January 2021. For the Council The President A. P. ZACARIAS

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

(2) Regulation (EU) 2019/472 of the European Parliament and of the Council of 19 March 2019 establishing a multiannual plan for stocks fished in the Western Waters and adjacent waters, and for fisheries exploiting those stocks, amending Regulations (EU) 2016/1139 and (EU) 2018/973, and repealing Council Regulations (EC) No 811/2004, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007 and (EC) No 1300/2008 (OJ L 83, 25.3.2019, p. 1).

(3) Council Regulation (EC) No 847/96 of 6 May 1996 introducing additional conditions for year-to-year management of TACs and quotas (OJ L 115, 9.5.1996, p. 3).

(4) Agreement on the implementation of the provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the conservation and management of straddling fish stocks and highly migratory fish stocks (OJ L 189, 3.7.1998, p. 16).

(5) OJ L 444, 31.12.2020, p. 14.

(6) Regulation (EC) No 218/2009 of the European Parliament and of the Council of 11 March 2009 on the submission of nominal catch statistics by Member States fishing in the north-east Atlantic (OJ L 87, 31.3.2009, p. 70).

(7) Regulation (EC) No 216/2009 of the European Parliament and of the Council of 11 March 2009 on the submission of nominal catch statistics by Member States fishing in certain areas other than those of the North Atlantic (OJ L 87, 31.3.2009, p. 1).

(8) Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets, and repealing Council Regulation (EC) No 1006/2008 (OJ L 347, 28.12.2017, p. 81).

(9) Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union 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 (OJ L 343, 22.12.2009, p. 1).