COMMISSION DELEGATED REGULATION (EU) 2022/303

of 15 December 2021

amending Regulation (EU) 2019/1241 as regards measures to reduce incidental catches of the resident population of the Baltic Proper harbour porpoise (Phocoena phocoena) in the Baltic Sea

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) 2019/1241 of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures, amending Council Regulations (EC) No 1967/2006, (EC) No 1224/2009 and Regulations (EU) No 1380/2013, (EU) 2016/1139, (EU) 2018/973, (EU) 2019/472 and (EU) 2019/1022 of the European Parliament and of the Council, and repealing Council Regulations (EC) No 894/97, (EC) No 850/98, (EC) No 2549/2000, (EC) No 254/2002, (EC) No 812/2004 and (EC) No 2187/2005 (1), in particular Article 15(2) thereof,

Whereas:

(1) In accordance with Article 3(2)(b) of Regulation (EU) 2019/1241, technical measures are to be adopted to contribute to minimising and where possible eliminating incidental catches of sensitive marine species, including those listed under Council Directive 92/43/EEC (2) and Directive 2009/147/EC of the European Parliament and of the Council (3), that are a result of fishing.

(2) The harbour porpoise (Phocoena phocoena) is a strictly protected species according to Annex IV to Directive 92/43/EEC, which lists all cetaceans as species of Community interest in need of strict protection, and it is listed in Annex II to that Directive as species of Community interest whose conservation requires the designation of special areas of conservation.

(3) The population of Baltic Proper harbour porpoise is genetically significantly different from other populations. The International Council for the Exploration of the Sea (ICES) therefore considers that the resident harbour porpoise population of the Baltic Proper should be managed as a separate population unit (4) (hereinafter ‘Baltic Proper harbour porpoise’.

(4) Annex XIII to Regulation (EU) 2019/1241 lays down rules at regional level regarding mitigation measures to reduce incidental catches of sensitive species including cetaceans, by detailing restricted areas, periods and gear limitations.

(5) In accordance with point 3 of Annex XIII to Regulation (EU) 2019/1241, Member States shall submit joint recommendations for additional mitigation measures for the reduction of incidental catches of sensitive species, on the basis of Article 15 of that Regulation, where scientific evidence, validated by ICES or STECF, shows negative impacts of fishing gear on the concerned species.

(6) The serious threat to the population of the Baltic Proper harbour porpoise and the need to take restorative action was recognised by parties to the Agreement on the conservation of small cetaceans of the Baltic, North East Atlantic, Irish and North Seas (ASCOBANS) through the adoption of the recovery plan for the Baltic Proper harbour porpoises (‘Jastarnia plan’). This plan was developed in 2002 and revised in 2009 and in 2016 (5), and it identifies incidental catches in static net fisheries as the primary threat for the survival of the Baltic Proper harbour porpoise population.

(7) The Baltic Marine Environment Protection Commission (HELCOM) reported in its red list (6) that the Baltic Proper harbour porpoise population in the Baltic Sea has declined dramatically over the past hundred years and there are strong indications that it is facing extinction.

(8) New information about the status of the Baltic Proper harbour porpoise population provided by the SAMBAH project in 2016 (7) quantified the population size of Baltic Proper harbour porpoises at 497 individuals.

(9) Following an EU request for advice on emergency measures to prevent by-catch of common dolphin (Delphinus delphis) and Baltic Proper harbour porpoise (Phocoena phocoena) in the Northeast Atlantic, the International Council for the Exploration of the Seas (ICES) has calculated in its advice of 26 May 2020 (8) the level of incidental catches of Baltic Proper harbour porpoises that would allow the population to recover to 50 % of its carrying capacity 95 % of the time over the long term. That level was calculated as 0,7 individuals by-caught per year. To meet this management objective, ICES stated that all fisheries of concern should be closed. Any incidental catch of only one individual per year would further increase the risk for the population to become extinct. ICES stated in its advice that, considering the life history of small cetaceans, any protection measures can only be effective when applied continuously for a long period.

(10) ICES recommended in its advice of 26 May 2020 a set of bycatch mitigation measures that, if implemented as a whole, are expected to immediately reduce the bycatch risk of Baltic Proper harbour porpoise. Those measures include the closure of the Northern Midsea bank to all fisheries except for pots, traps and longlines, the closure of certain Natura 2000 sites and other areas to fishing with static nets (i.e. trammel net, gillnet, and semi-driftnet). It also recommends the obligatory use of acoustic deterrent devices on static nets in areas with low or potentially low occurrence of Baltic Proper harbour porpoise.

(11) On the basis of the ICES advice (9), in December 2020, Denmark, Germany, Estonia, Latvia, Lithuania, Poland, Finland and Sweden (‘BALTFISH’ regional group), submitted a joint recommendation proposing mitigation measures to reduce incidental catches of Baltic Proper harbour porpoise. In September 2021, in line with the same ICES advice, BALTFISH submitted a new joint recommendation with additional mitigation measures for the Natura 2000 site Sydvästskånes utsjövatten (SE0430187).

(12) The joint recommendations were assessed by the Baltic Sea Advisory Council in October 2020 and July 2021.

(13) The joint recommendation submitted in December 2020 by the BALTFISH regional group proposes the closure of the Northern Midsea bank, a core area for the Baltic Proper harbour porpoise during the breeding season (10), to all fisheries except for pots, traps and longlines. It also suggests the closure of the Southern Midsea Bank and a number of Natura 2000 sites for fishing with static nets in line with the ICES advice of 26 May 2020. The joint recommendation submitted in September 2021 proposes the seasonal closure (from 1 November to 30 April) for fishing with static nets in the Natura 2000 site Sydvästskånes utsjövatten, identified by ICES also as an area of importance for Baltic Proper harbour porpoise. In addition to the areas included in the ICES advice, the joint recommendation submitted in December 2020, proposed the closure of Adler Grund and Rønne Bank (DK00VA261) between 1 November and 31 January, an area where harbour porpoises are occasionally present during winter months (11).

(14) The joint recommendation of December 2020 further proposes the year-round obligatory use of acoustic deterrent devices within and outside the Natura 2000 site Zatoka Pucka and Półwysep Helski (PLH220032), covering the entire Puck Bay (Poland). ICES limited its advice to the area inside this Natura 2000 site. However, ICES advised to close the static net fisheries in the area east of the sandbank Ryf Mew (the Outer Puck Bay) because of higher probability of detection of Baltic Proper harbour porpoise. The joint recommendation of September 2021 proposes a seasonal obligatory use of acoustic deterrent devices (from 1 May to 31 October) on static nets in the Natura 2000 site of Sydvästskånes utsjövatten. Furthermore, ICES advised to equip static nets with acoustic deterrent devices in additional areas with low or potentially low occurrence of Baltic Proper harbour porpoise, which were not considered in these joint recommendations.

(15) The joint recommendation submitted in December 2020 was assessed by the Scientific, Technical and Economic Committee for Fisheries (STECF) in its plenary meeting of March 2021 (12). The STECF stated that although the measures proposed in this joint recommendation are largely in line with those proposed by ICES, they do not follow it entirely. However, STECF also concluded that if effectively implemented, these measures will contribute to reducing unintended, incidental catches of the Baltic Proper harbour porpoise. The measures introduced in the joint recommendation of September 2021, in line with the ICES advice, further contribute to that objective.

(16) Both joint recommendations provide that Member States should ensure control of fishing vessel activity in order to implement the measures proposed. The STECF concluded (13) in the assessment of the measures proposed in the joint recommendation of December 2020, that such measures may enhance the accuracy of the recording of bycatch events for protected, endangered and threatened species.

(17) Overall, the STECF considers that the implementation of the measures proposed in the joint recommendation of December 2020 will contribute to reducing unintended, incidental catches of the Baltic Proper harbour porpoise and would be a step towards achieving the objectives of Regulation (EU) 2019/1241. Therefore, the measures proposed should be included in Annex XIII to Regulation (EU) 2019/1241.

(18) The Commission also notes that Member States commit in the joint recommendation submitted in December 2020 to work on additional mitigation measures as soon as possible, including additional measures in relation to the use of acoustic deterrent devices on static nets in areas with low or potentially low occurrence of Baltic Proper harbour porpoise, and will endeavour to agree on more detailed control measures linked to the control of the mitigation measures. Furthermore, in addition to the areas already covered, Member States commit in the joint recommendation submitted in September 2021 to work on additional measures to stop fishing activities with static nets in areas where harbour porpoises have been detected.

(19) This Delegated Regulation is without prejudice to additional measures for the protection of the Baltic Proper harbour porpoise that the Commission may adopt, including in case of duly justified imperative grounds of urgency relating to a serious threat to the conservation of marine biological resources or to the marine ecosystem pursuant to Article 12 of Regulation (EU) No 1380/2013 of the European Parliament and of the Council (14), and more stringent national measures that Member States may adopt for that purpose in their waters in accordance with Regulation (EU) No 1380/2013 and Regulation (EU) 2019/1241.

(20) For reasons of urgency concerning the need to safeguard with immediate effect the Baltic Proper harbour porpoise population, this Regulation should enter into force immediately. In order to allow fishermen sufficient time to equip their vessels with the acoustic deterrent devices, the application of point 1.1(b) in the Annex should be deferred,

HAS ADOPTED THIS REGULATION:

Article 1 Annex XIII to Regulation (EU) 2019/1241 is amended in accordance with the Annex to this Regulation.

Article 2 This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union. The measures in point 1.1(b) of the Annex shall apply from 1 June 2022.

This Regulation shall be binding in its entirety and directly applicable in all Member States. Done at Brussels, 15 December 2021. For the Commission The President Ursula VON DER LEYEN

(1) OJ L 198, 25.7.2019, p. 105.

(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7).

(3) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7).

(4) ICES, 2020. EU request on emergency measures to prevent bycatch of common dolphin (Delphinus delphis) and Baltic Proper harbour porpoise (Phocoena phocoena) in the Northeast Atlantic. In Report of the ICES Advisory Committee, 2020. ICES Advice 2020, http://ices.dk/sites/pub/Publication%20Reports/Advice/2020/Special_Requests/eu.2020,04.pdf

(5) https://www.ascobans.org/sites/default/files/document/ASCOBANS_JastarniaPlan_MOP8.pdf

(6) https://www.helcom.fi/wp-content/uploads/2019/08/HELCOM-Red-List-Phocoena-phocoena.pdf

(7) NAMMCO–IMR. 2019. Report of Joint IMR/NAMMCO International Workshop on the Status of Harbour Porpoises in the North Atlantic. Rev 2020. North Atlantic Marine Mammal Commission and the Norwegian Institute of Marine Research, Tromsø, Norway. SAMBAH study. http://www.sambah.org/SAMBAH-Final-Report-FINAL-for-website-April-2017.pdf

(8) ICES, 2020. EU request on emergency measures to prevent by-catch of common dolphin (Delphinus delphis) and Baltic Proper harbour porpoise (Phocoena phocoena) in the Northeast Atlantic. In Report of the ICES Advisory Committee, 2020. ICES Advice 2020.

(9) ICES, 2020. EU request on emergency measures to prevent by-catch of common dolphin (Delphinus delphis) and Baltic Proper harbour porpoise (Phocoena phocoena) in the Northeast Atlantic. In Report of the ICES Advisory Committee, 2020. ICES Advice 2020.

(10) https://www.ices.dk/sites/pub/Publication%20Reports/Advice/2020/Special_Requests/eu.2020,04.pdf

(11) https://stecf.jrc.ec.europa.eu/documents/43805/2850498/STECF-PLEN+21-01.pdf

(12) https://stecf.jrc.ec.europa.eu/documents/43805/2850498/STECF-PLEN+21-01.pdf

(13) https://stecf.jrc.ec.europa.eu/documents/43805/2850498/STECF-PLEN+21-01.pdf

(14) 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).