COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT - Behaviour which seriously infringed the rules of the common fisheries policy in 2000

1. LEGAL FRAMEWORK

The issue of infringements and penalties plays a key role in the control of fisheries. Ideally, the best solution would be a coordinated system under which penalties of equal severity would be applied for comparable infringements across the whole of the EU. Unless Community fishermen can be persuaded that penalties are equally stringent in all the Member States, the individual member countries are going to face enormous difficulties in putting in place effective deterrent arrangements.

The Commission has made several attempts to make headway in this direction. It has received the support of the European Parliament but failed to win the backing of the Council. Virtually all the Member States have raised objections to the introduction of such a system, quoting the principles of national competence and legal independence.

It was therefore considered preferable to put forward an approach which is realistic, based on assurances of transparency regarding the action taken in response to the most flagrant breaches. The Commission Communication on fisheries monitoring under the CFP [1] emphasised this point. Information forwarded to the Commission should at the very least make it possible for valid comparisons to be made in order to ensure effectiveness and fairness between the Member States in the application of penalties. The Commission action plan on 'Improving the enforcement of the CFP' [2] in the same way suggested the establishment of a list of serious infringements and rules for the transmission of data to the Commission on the action taken as a result of infringements.

[1] COM(1998) 92 final, 19.2.1998.

[2] SEC(1998) 949 final, 5.6.1998.

The Commission proposed therefore, on the occasion of the amendment of Council Regulation (EEC) No 2847/93 [3] (the 'Control Regulation') in 1998, that the Council adopt a list of serious infringements. During the discussions in the Council, however, several Member States again brought up the issue of national competence in relation to infringements. In a spirit of compromise the Council decided to replace the legal term "serious infringements" with "types of behaviour which seriously infringe the rules of the common fisheries policy".

[3] OJ L 261, 20.10.1993.

Council Regulation (EC) No 1447/1999 [4] introduced a list of the types of behaviour in question which is based on the main obligations imposed by the Community rules on fisheries. The breaches included in the list are linked to the most important rules under the policies on stock conservation, monitoring/control and the market and are based on similar lists adopted by the regional fisheries organisations such as NAFO. They are grouped under five main headings and cover:

[4] OJ L 167, 2.7.1999.

* Cooperation with the control authorities: obstructing the work of national and Community fisheries inspectors or observers; falsifying or destroying evidence;

* Conditions which must be met when fishing: fishing without holding a fishing licence or permit issued by a Member State or the Commission; falsifying the content of these documents; falsifying or concealing the name, registration or identifying marks of the vessel;

* During fishing operations: using prohibited gear or fishing methods; fishing for stocks which are subject to a moratorium or fishing prohibition; unauthorised fishing in a specific zone and/or during a specific period; failure to comply with the rules relating to the keeping on board or the conservation of fishery products and the rules relating to transhipment;

* Monitoring resources: falsifying data in logbooks, landing declarations and sales notes; tampering with the satellite-based vessel monitoring system; failure to comply with the rules on remote transmission of vessel movements;

* The marketing of fishery products: landing, placing for sale and transporting fishery products not meeting the marketing standards, in particular those concerning minimum sizes.

The establishment of this list does not mean that penalties have been coordinated at Community level. By contrast, its adoption and the obligation imposed on Member States of reporting to the Commission on the action taken when breaches are found aims to ensure greater transparency in order that fishermen will have greater confidence in the control authorities and so that comparisons can be made of the effectiveness of the national arrangements.

The procedure for notifying the Commission of any action taken was laid down in Commission Regulation (EC) No 2740/1999 [5] which sets out in detail the information which Member States must forward to the Commission in cases where serious breaches have been uncovered by the Member States' monitoring authorities that have been the subject of an official report. Details of the breaches, including the type of proceedings initiated, the decisions or ruling made at the different levels (instances) and the nature of the penalties imposed must be forwarded. Cases that have not been the subject of an official report are not included in the report therefore and the Commission has no information about them, or about the total number of serious infringements committed.

[5] OJ L 328, 22.12.1999.

2. The 2000 fishing year

Member States were to send their first report on cases uncovered in 2000 to the Commission, by electronic transmission, by 31 March 2001. To that end the Commission presented an electronic format at the meeting of the Experts' Group on Monitoring and Control on 21 February 2000 (working paper: FIDES II Message Definition [6]).

[6] FIDES: Fisheries Information Data Exchange System

This Communication is based on the data received from the Member States and satisfies the requirement laid down in Article 2 of Commission Regulation (EC) No 2740/1999.

All the Member States, with the exception of France, presented their reports to the Commission. The majority of them were received after the 31 March deadline, however (Annex I). Furthermore, the reports from Spain, Italy, Luxembourg (which reported that no serious breach had been found), the Netherlands and Austria were sent by post and not by electronic means.

In addition, during the processing and management of the data from the Member States, certain technical problems came to light, with the result that some reports could be examined in part only. For example,

* the Belgian report contained 19 entries using codes that are not listed in Annex II to Regulation (EC) No 2740/1999;

* the Spanish report, sent by mail, was incomplete (no indication of case number, zone or nationality/flag of the fisherman/vessel which committed the breach), illegible [7] (in many cases penalties, shown in national currency and not in euros, were illegible) or contained information that was not required (data covering the years 1998-99);

[7] A reminder to Member States to submit their reports electronically went unobserved.

* the Italian report, sent by mail, was incomplete (no indication of case number, date or nationality/flag of the fisherman/vessel which committed the breach) or contained information that was not required (data covering the years 1997-99);

* the Netherlands report, sent by mail, was largely illegible 7.

The summary tables below have been drawn up using the reports from the Member States:

* Number of cases discovered by type of behaviour and by Member State (Annex II);

* Number of cases discovered by nationality of perpetrator and by Member State (Annex III);

* Type of proceedings initiated by type of behaviour and by Member State (Annex IV);

* Number of cases where penalties were imposed by type of behaviour and by Member State (Annex V);

* Average fine by type of behaviour and by Member State (Annex VI);

* Number of seizures by type of behaviour and by Member State (Annex VII);

* Number of cases discovered by type of behaviour and by fishing zone (Annex VIII);

* Number of cases discovered at ports by type of behaviour and by Member State (Annex IX).

For the reasons explained above, only Annex II contains data relating to cases notified by Spain, Italy and the Netherlands.

2.1. BELGIUM

Belgium discovered and reported 68 serious breaches covering 5 types of behaviour. In 19 cases, the type of behaviour was not specified. Forty-nine cases concerned vessels flying the Belgian flag or involved Belgian fishermen. The majority (23 cases) concerned the falsifying of data required in the control documents [E1]. Criminal proceedings were initiated in all cases and penalties imposed in 31. The average fine in 20 cases was EUR 556, ranging from EUR 1 250 for the use or holding on board of prohibited gear [D1] to EUR 250 for the falsifying of the data required in the control documents [E1]. For this type of infringement, Belgium in addition ordered the seizure of catches in 11 cases.

2.2. DENMARK

Denmark discovered and reported 163 serious breaches (153 concerning vessels flying the Danish flag or involving Danish fishermen) covering 9 types of behaviour. The two main types of infringement were the use or holding on board of prohibited gear [D1] (59 cases) and the falsifying of data required in the control documents [E1] (44 cases). Criminal proceedings were initiated in 61 cases, administrative procedures in 95 cases and joint administrative and criminal proceedings in 6 cases. Fines were imposed in 133 cases. The average fine was EUR 727 and ranged from EUR 530 for the falsifying of the data required in the control documents [E1] to EUR 4 919 for unauthorised fishing. In addition, Denmark ordered the seizure of catches or gear in 12 cases.

2.3. GERMANY

Germany discovered and reported 98 infringements covering 9 types of behaviour (86 concerned vessels flying the German flag or involved German fishermen). The majority (49) concerned the falsifying of the data required in the control documents [E1]. All cases were subject to administrative follow-up and penalties were imposed in 72 cases. The average fine was EUR 495 and ranged from EUR 53 for failure to observe the rules on minimum sizes [D6] to EUR 1 620 for the use or holding on board of prohibited gear [D1]. No seizures were reported by Germany.

2.4. GREECE

Greece discovered and reported 384 serious breaches (only one concerned a vessel flying the flag of a third country) involving 9 types of behaviour. The two main types of behaviour were unauthorised fishing [D5] (150 cases) and the use of prohibited fishing methods [D2] (108 cases). Administrative procedures were carried out in 339 cases and joint administrative and criminal proceedings in 37 cases. Penalties were imposed in 356 cases. The average fine imposed in 352 cases was EUR 1 181, ranging from EUR 293 for failure to meet marketing standards [F2] to EUR 2 142 for the use of prohibited fishing methods. In 119 cases gear and catches were seized.

2.5. SPAIN

Spain discovered and reported 723 serious infringements (flag/nationality unspecified) covering 16 types of behaviour (type of behaviour not specified in 85 cases). The majority of cases (187) concerned unauthorised fishing [D5]. For the reasons explained above, the Spanish report could not be processed or examined.

2.6. IRELAND

Ireland discovered and reported 43 serious breaches (24 concerning vessels flying the Irish flag or involving Irish fishermen) covering 7 types of behaviour. The majority (19 cases) concerned the falsifying of the data required in the control documents [E1]. Criminal proceedings were initiated in 35 cases resulting in penalties. The average fine in 30 cases was EUR 14 952, and ranged from EUR 301 for fishing without holding a licence or other authorisation [C1] to EUR 45 710 for unauthorised fishing [D5]. No seizures were reported by Ireland.

2.7. ITALY

Italy discovered and reported 1 077 serious breaches covering 14 types of behaviour (type unspecified in 35 cases). The majority (436) concerned unauthorised fishing [D5]. For the reasons explained above, the Italian report could not be processed or examined.

2.8. THE NETHERLANDS

The Netherlands discovered and reported 196 serious breaches (flag/nationality unspecified) covering 12 types of behaviour. The majority of cases (100) concerned the falsifying of the data required in the control documents [E1]. For the reasons explained above, the Netherlands report could not be examined.

2.9. AUSTRIA

Austria reported one serious infringement only involving failure to meet the marketing standards for fishery products [F2], which was the subject of an administrative procedure.

2.10. PORTUGAL

Portugal discovered and reported 1 291 serious breaches (1 140 concerning vessels flying the Portuguese flag or involving Portuguese fishermen) covering 11 types of behaviour. The two main types were unauthorised fishing [D5] (484 cases) and fishing without holding a licence or another authorisation [C1] (431 cases). Administrative procedures were applied in 1 214 cases and joint administrative and criminal proceedings in 6 cases. The number of penalties imposed totalled 872. The average fine in 618 cases was EUR 1 216 ranging from EUR 188 for falsifying the identification marks of fishing vessels [C3] to EUR 2 177 for fishing without authorisation [C1]. In addition, Portugal ordered the seizure of catches or gear in 289 cases.

2.11. FINLAND

Finland reported one serious infringement only involving the falsifying of the data required in the control documents [E1], which was the subject of joint administrative and criminal proceeding.

The fine imposed was EUR 520.

2.12. SWEDEN

Sweden discovered and reported 88 serious infringements (66 cases concerning vessels flying the Swedish flag or involving Swedish fishermen) covering 9 types of behaviour. The two main types were unauthorised fishing [D5] (22 cases) and fishing without holding a licence or other authorisation [C1] (21 cases). Criminal proceedings were initiated in all cases and penalties imposed in 29 cases. The average fine was EUR 316 and ranged from EUR 100 for failure to comply with the rules on minimum sizes [D6] to EUR 448 for unauthorised fishing [D5]. In addition, Sweden ordered the seizure of catches or gear in 13 cases.

2.13. UNITED KINGDOM

The United Kingdom discovered and reported 47 serious breaches (30 concerning vessels flying the UK flag or involving UK fishermen) covering 6 types of behaviour. The majority (28 cases) concerned the concerned the falsifying of the data required in the control documents [E1]. An administrative procedure was applied in one case and criminal proceedings in 46 cases with penalties being imposed in 45 cases. The average fine was EUR 10 691 and ranged from EUR 165 for fishing for stocks that are subject to a prohibition of fishing [D4] to EUR 15 678 for falsifying the data required in the control documents [E1]. No seizures were reported by the United Kingdom.

3. CONCLUSION

By adopting Regulation No 1447/1999 the Council aimed at improving transparency on how Member States apply sanctions in the event of infringements of the CFP rules. The goal envisaged is to create a level playing field among fishermen in order to make them adhere to Community rules on conservation of resources.

The present document is the first attempt to have a picture of the real situation.

Since some Member States did not comply with requirements on data communication or data are not always processed according to the criteria established by the Regulation, it is impossible to draw clear, coherent conclusions. Furthermore, due to the fact that a prominent Member State in this sector (France) has not felt the need to send data at all, any comprehensive analysis seems to be out of reach.

The Regulation only requires the Commission to make the information available to the European Parliament, the Council and the Advisory Committee on Fisheries (see Art.2(2)). However, the tables annexed to the document will certainly raise questions and stir demands for better enforcement of the rules.

Having considered the data available, the Commission wishes to draw the following conclusions:

* // it seems that the main infringements are in the area of fishing in a given zone without authorization [D5 and C1] : this accounts for almost half of the 4 180 serious infringements reported. It is worth noting that this kind of infringement is easier to detect.

* // for constitutional or historical reasons some Member States apply an administrative procedure, and others a criminal one. Even if the choice of procedure belongs to the Member State as a prerogative of sovereignty, experience in other economic fields has shown that the most effective procedure is not necessarily the one which imposes criminal sanctions. Some reflection on this issue is therefore required.

* // when comparing fines imposed on fishermen, differences between Member States are striking. Even if the subjective aspects of the infringement (culpa), its importance or duration, are taken into account, the level of fines imposed seems not to be a serious deterrent to breaching the rules. Though data relating to the value of catches seized (when this takes place) are not available, there appears clearly a need to reach some uniformity on penalties if we really want to influence behaviour.

* // there is a need to fine-tune data which are collected in order to draw up reports. For instance, it is necessary to have a more accurate indication of the area where an infringement occurs: there is no area indication for the Mediterranean. But also for the ICES areas it would be important to have detailed indications, in particular to monitor enforcement of special measures adopted in the context of the various recovery plans. When possible, mention of the species concerned would also be very useful.

Given these shortcomings, in order to ensure a satisfactory level of enforcement throughout the Community, improvements of the existing legislation are required. Proposals will be tabled in the framework of the reform of the CFP.

Reports on infringements to be presented in the years to come will be a real tool for increasing transparency and therefore ensuring better enforcement to the extent that Member States fulfil their obligations.

ANNEX I

REPORTS RECEIVED BY THE COMMISSION BY ELECTRONIC TRANSMISSION

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ANNEX II

NUMBER OF CASES DISCOVERED BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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ANNEX III

NUMBER OF CASES DISCOVERED BY NATIONALITY OF PERPETRATOR AND BY MEMBER STATE

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ANNEX IV

TYPE OF PROCEEDINGS INITIATED (*) BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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(*) A = Administrative P = Criminal A & P = Administrative+criminal

ANNEX V

NUMBER OF CASES WHERE PENALTIES WERE IMPOSED* BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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* in brackets, the number of cases discovered

ANNEX VI

AVERAGE FINE * BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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* in brackets, the number of cases where a fine was imposed

ANNEX VII

NUMBER OF SEIZURES * BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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* in brackets, the number of cases discovered

ANNEX VIII

NUMBER OF CASES DISCOVERED BY TYPE OF BEHAVIOUR AND BY FISHING ZONE

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ANNEX IX

NUMBER OF CASES DISCOVERED AT PORTS BY TYPE OF BEHAVIOUR AND BY MEMBER STATE

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