[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 4.11.2008

COM(2008) 670 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2006

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2006

1. INTRODUCTION

With a view to increasing the level of transparency on how Member States comply with their obligations to enforce Community rules, Council Regulation (EC) n° 1447/1999[1] introduced the obligation for the Member States to report yearly to the Commission on how many “serious” infringements have been detected and on the sanctions imposed. For this purpose the said Regulation established a list of 19 types of breaches of the Community rules, deemed to be particularly serious. Member States are obliged to ensure that the appropriate measures are taken against the natural or legal person who infringes the rules of the Common Fisheries Policy[2].

The behaviours listed are linked to the most important obligations imposed by Community rules on stock conservation, monitoring and the marketing of fisheries products.

The procedure for reporting the required information to the Commission is laid down in Commission Regulation (EC) N° 2740/1999[3]. Data transmitted by electronic means should allow a comparison between Member States as regards the effectiveness of their enforcement systems. The legislator’s ultimate goal is to progressively achieve a level playing field among fishermen who would, in turn, have greater confidence in the control authorities throughout the European Community and adhere to Community rules on the conservation of fisheries resources.

The present Communication refers to the cases of behaviours which seriously infringed the rules of the CFP and for which a file was opened in 2006.

This is the seventh Communication on this matter. The Commission presented the most relevant data for 2000 in its Communication of 12 November 2001[4], for 2001 in its Communication of 5 December 2002[5], for 2002 in its Communication of 15 December 2003[6], for 2003 in its Communication of 20 May 2005[7] and for 2005 in its Communication of 25 July 2007 [8].

2. REPORTS FROM MEMBER STATES FOR 2006

Commission Regulation N° 2740/1999 lays down detailed rules for the transmission of data concerning behaviours which seriously infringed the rules of the Common Fisheries Policy. Data shall be transmitted by electronic means so that the Commission’ services are in a position to produce tables, which are annexed to the Communication. These tables are designed to show the most interesting features arising out of the Member States’ reports.

The data shown are those provided by Member States, which have been given the opportunity to check figures before the Communication is finalised by the Commission.

Comments sent by Member States have been taken into consideration and there is an explicit reference whenever appropriate.

3. SUPPLEMENTARY INFORMATION PROVIDED BY MEMBER STATES

As the interpretation of information gathered is not easy since it consists exclusively of sets of figures, and some data could be misleading to some extent, the Commission invited Member States to provide supplementary information that they deemed useful to clarify the analysis of the figures.

A. GENERAL SUPPLEMENTARY INFORMATION

The main points can be summarized as follows:

- The procedures (of administrative or of a criminal nature) launched for sanctioning infringements of the CFP rules are generally lengthy, varying in different Member States from 1 to 2 months up to 1-2 years. 8 to 12/18 months seems to be the time required on average until termination of the whole procedure. Criminal procedures are the longest ones (mainly criminal procedures are applied in Finland and Sweden for instance) in some Member States they go for up to 10 years with the appeals stages. Administrative procedures are shorter, taking around 1 to 2 months in general.

- Notably many procedures for breaches detected the previous year are still pending.

- In general, the species most affected by serious infringements were those species for which recovery plans or restrictive national measures are in place and those with high commercial value i.e. demersal species, cod, sole, salmon, sardine, and anchovy.

- It appears that most infringements are detected by Member States in ICES zones such as the Eastern Mediterranean zone, the North Sea, the Baltic Sea, Skagerrak and Kattegatt areas, Andalucía and Galicia, ICES 30 zone, Northern Greece- FAO zones 34.3.1 and 34.2.2

- The majority of breaches were discovered during inspections at sea.

B. NEW LEGISLATION AND BEST PRACTICES

With a view to widening the scope of the Communication, it includes for the first time a reference to both national legislation and best practices. Amongst new legal instruments and good practices on fisheries enforcement adopted recently, it is worth mentioning:

- Spain adopted new regulations on provisional administrative measures against some of the serious infringements presumed to have taken place, aimed at avoiding and minimizing their harmful effects. These measures included mainly the detention of the vessel in port until the posting of a bond. This has already proven to have dissuasive effect by reducing the number of infringements. A web page was created on the sanctions applied in infringements cases to serve as a guideline on the legal and judicial criteria for future procedures.

- France intensified its control activities in particular with regard to non-compliance with the minimum size of fish. 2006 was the first year of application of the administrative sanctions regime under Statute 2006-11 of Agricultural Orientation.

- Greece established a Fishing Monitoring Centre functioning 24 hours a day and which under national legislation can impose sanctions on vessels engaged in infringements.

- Italy started operating a new data-processing system FINSIEL for collecting electronic data from the Italian fishing fleet in order to comply with its obligations under EC regulations and the ECJ judgement C-161/05.

- Slovenia also put in place a new information system and improved communication with stakeholders to raise their awareness of the CFP rules. A Fisheries Monitoring Centre for collecting and crosschecking fisheries data has recently been established to combine VMS data and the InfoRib system for information from logbooks, first sale and landing declarations.

- Swedish legislation determines the amount of fines for serious infringements proportionately to the power of the vessel's engine - at a minimum of 10 and maximum of 500 times its power in kilowatts. It also envisages the withdrawal of professional fishing and navigation licenses but currently only after the entry into force of a criminal conviction. This withdrawal can be permanent in case of repeated breaches by the operator. Control at the first-transaction stage was reinforced and enlightened more cases of infringements.

4. SERIOUS INFRINGEMENTS COMPARED TO THE NUMBER OF FISHING VESSELS IN EACH MEMBER STATE

The following table indicates the number of active vessels for 2006 which shows a decrease of 10 % compared to the vessels listed in the Fishing Vessel Register for each Member State on 31 December 2005, together with the total number of serious infringements discovered and reported by Member States for (exclusively) vessels flying their flag. Although it would be inexact to draw firm conclusions by comparing Member States against these figures, as infringements are not always related to breaches committed by fishermen but also include those committed by other economic operators, it appears however that, for most of the Member States, the number of breaches detected, when compared with the size of the fleet, highlights poor performance in control activities or even a lack of control in certain Member States.

Member State | Number of active vessels | Serious infringements |

Belgium | 107 | 29 |

Denmark | 3,136 | 323 |

Germany | 2,017 | 101 |

Greece | 17,878 | 351 |

Estonia | 994 | 0 |

Spain | 13,357 | 2,061 |

France | 7,698 | 1,360 |

Ireland | 1,843 | 223 |

Italy | 14,093 | 3,868 |

Cyprus | 872 | 88 |

Latvia | 897 | 94 |

Lithuania | 266 | 4 |

Malta | 1,413 | 0 |

Netherlands | 831 | 96 |

Poland | 884 | 129 |

Portugal | 8,715 | 1,352 |

Slovenia | 179 | 22 |

Finland | 3,196 | 11 |

Sweden | 1,567 | 80 |

United Kingdom | 6,761 | 170 |

TOTAL: | 86,704 | 10, 362 |

5. THE REPORTS SUBMITTED BY THE MEMBER STATES

The total number of cases reported by Member States is 10 362 spread over the whole list of breaches included in the list of Council Regulation (EC) N° 1447/1999. The number is less than 1 % lower than in 2005 which has to be read in conjunction with the decrease in the overall number of active EU vessels with 10 %: therefore there is no real improvement in level of compliance with CFP rules. In absolute terms, Member States have detected only 81 breaches fewer than in 2005. In order to facilitate the comparison and observing the trend, it should be noted that the number of serious infringements detected in previous years was 7 298 in 2000, 8 139 in 2001, 6 756 in 2002, 9 502 in 2003; 9 660 in 2004 and 10 443 in 2005.

The main features of the annexed tables may be summarised as follows:

83% of the infringements were detected by Italy, Spain, France and Portugal. These countries are also among those that have a larger number of vessels. In 2006 the majority of serious infringements occurred in the storing, processing, placing for sale and transporting fishery products not meeting the marketing standards in force, accounting for 20% of infringements, whereas unauthorised fishing came in second place with 18% of the cases. Falsifying or failing to record data rised to third position constituting 13 % and the failure to comply with the rules on minimum size came fourth with 10 %. The rest of the types of serious infringements were less than 10 % from the overall number. These percentages are similar to those for 2005 however the number of cases of storing, processing, placing for sale and transporting fishery products not meeting the marketing standards, of fishing without a license and of falsifying or failing to record electronic data has risen. The number of cases of tampering with the Vessel Monitoring System (VMS) has also increased in comparison with previous years.

In 2006 7 973 procedures ended with a sanction constituting 77 % of the overall number of infringements detected- fewer than the previous year where 83 % of the cases were sanctioned. It is interesting to observe that from the procedures initiated, 72% were administrative in nature, 25% were criminal and the remaining- mixed.

There are still substantial and inexplicable differences for the same type of infringement across the EU and the average fine imposed across EU in the proceedings that ended with a penalty in 2006 was EUR 1 548. Strikingly this figure is exactly the same as the average fine for 2005, varying from 170 EUR in some to 6070 EUR in other Member States. The average fine is less than half the average fine imposed in 2003 (EUR 4 664) and less than the average fine imposed in 2004 (EUR 2 272). Notably the maximum fines varied in Member States from 170 EUR up to 120 000.

The number of licences withdrawn was 1082, regrettably only in 10 % of the cases. By comparison, 1 226 licenses were withdrawn in 13 % of the cases in 2004. It should be noted that this measure was applied most broadly in Greece- in 71 % of the cases and in Spain- in 36 %, in Denmark and the Netherlands it was used in a bit less than 10 % of the cases and for the rest of the Member States in only 2% of the cases or less.

Finally, the amount paid by the fisheries industry as a consequence of the monetary penalties imposed in 2006 (€ 9, 281 millions) remains insignificant and affected only 0.04 % of the number of all active fishing vessels

6. GENERAL REMARKS ON MEMBER STATES ' REPORTS

Having once again underlined how difficult it is to interpret the sets of figures in the tables without comments from the Member States, the Commission concludes that the situation has not really improved compared with the previous year.

What is particularly worrying is that the inadequate level of the sanctions imposed in most of the cases detected together with the low probability of being caught and pursued by the control authorities may convince the fisherman that the economic benefits that he can draw by breaching the rules outweigh the risk. This incongruity in the level of penalties allows the fishing industry to consider disbursements imposed for infringements to the CFP rules simply as an ordinary running cost of the enterprise and this removes any real incentive for them to comply.

The suspension of licenses to fish or to carry out a professional activity is a very effective tool in enhancing compliance with CFP rules, because it can be quickly applied and it has an immediate effect. The Commission has noted that some Member States have introduced this measure which was previously unknown in their legal system. It is regrettable that the majority of Member States still do not use this tool, at least when a breach of the rules is serious enough to justify opening a criminal procedure.

7. INFRINGEMENTS DETECTED IN THE FRAMEWORK OF REGIONAL FISHERIES ORGANISATIONS (RFMOS)

Several RFMOs have put in place control schemes which foresee the recording of infringements. For instance, such schemes exist within the Northwest Atlantic Fisheries Organisation (NAFO) and the North East Atlantic Fisheries Organisation (NEAFC).

RFMOs have established their own lists of infringements of the rules adopted for conservation goals to be considered as "serious". These infringements are not reported as such within the context of the present Communication, but the Commission assumes that the infringements of the CFP rules committed by vessels operating within the framework of the above mentioned RFMOs are recorded amongst the cases notified to the Commission for the purposes of the present Communication.

It is worth noting that the European Community submits a yearly report to the said Organisations on the infringements detected and notified to the Commission services by the national control authorities. However it is not possible to compare the data transmitted to RFMOs and those shown in the annexes to the present Communication as the types of infringements are not identical.

In the context of RFMOs, it appears that two serious infringements, by Community vessel were detected in the NEAFC area in 2006. For comparison three serious infringements by vessels of the other contracting parties were detected in the NEAFC area in the same period. As regards NAFO, 15 apparent infringements by Community vessels were notified and issued by the EU and by other contracting parties. The number of infringements has decreased compared to 2005 when there were 21 infringements issued. Another comparison can be drawn with the number of 12 committed by other contracting parties in 2006. It is interesting to observe in addition that there has been a shift in NAFO in 2006 towards increase of in port inspections including inter alia port inspection of landings versus amounts reported, data source comparison of catch data and electronic mapping of water depth versus directed species.

8. THE WAY FORWARD

The value of the annual publication of the Communication on "serious infringements" needs to be thoroughly reassessed as a tool to compare Member State's performances in ensuring compliance with the CFP rules in the context of the upcoming reform of the Control system of the CFP. There is an urgent need to ensure that in practice there is a level playing field across Member States.. It is a common opinion that it is of paramount importance to secure full transparency on sanctions applied by the Member States for breaches of CFP rules in order to improve enforcement. However the experience with the Communications on "serious infringements" between 2000 to 2006, has clearly demonstrated that it will not be possible without major adaptations of Community legal texts and harmonization at EC level of control procedures.

The Commission notes the significant disparities of the sanctions imposed by the different Member States for the same type of serious infringements and underlines the fact that the overall penalties imposed are not a sufficient deterrent, as they provide no real incentive to comply. The result is the inability of the inspection systems to detect and to prevent infringements. The Commission notes that the national systems are divergent due to the lack of general standards for inspections that therefore do not ensure adequate inspection pressure nor optimise inspection activities.

Two main conclusions can be drawn in this regard: first, there still are serious deficiencies in the control of and in the enforcement of sanctions against serious infringements, compromising the effectiveness of the Common Fisheries Policy. Secondly, there is a lack of uniformity resulting in inequitable implementation at EC level.

The Court of Auditors arrived at the same conclusions in its highly critical Special Report 07/2007, stressing that sanctions should have a deterrent effect and be harmonised.

In the light of the above, the Commission intends to launch an ambitious reform of the EU policy for fisheries control. The initiative should address in the most comprehensive, global and integrated way all the shortcomings identified. In the context of the Control reform it will be necessary to introduce harmonized administrative sanctions at EC level, to introduce a clearer definition of serious infringements and to introduce a clearer definition of enforcement measures. The reform will aim at guaranteeing equality and fair competition, thus avoiding the migration of offenders to Member States where infringements are punished less severely, as well as at establishing a culture of compliance among operators. Furthermore it will develop a new harmonized approach to inspections and control, strengthen the effectiveness of cross checking systems of data, enhance the capacity of the Commission to ensure compliance with EC rules of CFP, encourage the use of modern technologies and finally foster a culture of compliance. The adoption of this Commission proposal is envisaged for October 2008.

With regard to the Member States, the Commission emphasizes that they will remain the primary responsible for ensuring the implementation of CFP rules after the Control Reform and once again calls upon them to give the appropriate consideration to the obligation to ensure compliance with CFP rules with all possible means. It urges them, in particular, to increase the cooperation between them in the detection and follow up of infringements. The Commission has to stress that Member States do not accomplish all their obligations arising from the CFP rules. One example will suffice: the Member States are still not properly equipped with the appropriate means which would allow them to collect, process and assess data related to "serious infringements" of the CFP rules, as they should do. Member States have not set up databases for encoding relevant aspects relating to each individual case.

The Commission would like to insist on this point. Without a computerized database comprising a set of information relating , for example, to the law breaker, the vessel or the enterprise, the legal provisions, the species and fisheries areas, the economic context, the administrative costs, the main and ancillary sanction inflicted, it will be impossible to properly assess behaviours, administrative performance and efficacy of legislation in force. Only by processing these data and those contained in the databases already foreseen by Community law (such as Fleet register, statistics, VMS records), it would be possible to assess Member States' performance, compare them and eventually adjust administrative procedures and legislative texts, so that CFP rules would be effectively enforced. The lack of cross checking of data is also an urgent problem needed to be addressed. In this regard an example of good practice already in place in several Member States can be considered- there have been systems set up for the automatic treatment of inspection reports, giving very good results. The advantages of these systems include the unification of procedures, centralization of data, user- friendliness saving training costs, multilingual support for all formulas, flexibility in response to changing regulations and tighter security through form-based identification.

The Commission has already suggested a format to be used by national administrations to that end. It is ready to assist the Member States, also financially through existing budget lines, to introduce new tools.Therefore, while a comprehensive reform of the control framework is being prepared, the Commission urges Member States to cooperate and to apply their legislation and administrative organisation accordingly.

List of tables in annex

I number of serious breaches by Member State for the year 2006;

II infringements by country and nationality for the year 2006;

III number of cases where penalties were imposed and number of infringements by type of serious breach and by Member State for the year 2006

IV average fine and number of infringements by type of serious breach and by Member State for the year 2006;

V number of seizures and number of infringements by type of serious breach and by Member State for the year 2006;

VI number of licenses withdrawn and serious breaches by Member State for the year 2006

VI A number of temporary licences withdrawn and serious breaches by Member State for the year 2006;

VI B number of permanent licenses withdrawn and serious breaches by Member State for the year 2006;

VII amount paid by the Fisheries sector in each Member State for the year as a result of serious breaches 2006

VIII number of serious breaches by zone for the year 2006;

IX number of serious breaches by fishing port for the year 2006

X type of procedure initiated by serious breach and by Member State for the year 2006.

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[1] OJ L 167, 02.07.1999, p.5

[2] Art. 25 of Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Commission Fisheries Policy, OJ L 358, 31.12.2002, p. 59

[3] OJ L 328, 22.12.1999, p.62

[4] COM (2001) 650, 12.11.2001

[5] COM (2002) 687, 05.12.2002

[6] COM (2003) 782, 15.12.2003

[7] COM (2005) 207, 30.05.2005

[8] COM (2007) 448, 25.07.2007