TABLE OF CONTENTS 1.Introduction 2.Background to the intervention 3.Implementation and state of Play 4.Method 5.Analysis and answers to the evaluation questions A. Relevance B. Effectiveness C. Efficiency D. Coherence E. EU Added-Value 6.Conclusions Annex 1: Procedural information Annex 2: Consultations – SYNOPSIS REPORT Annex 3: Methods and analytical models Annex 4: SUMMARY OF TRENDS IN ARTICLE 19.2 Annex 5: list of eu regulations and international instruments Annex 6: literature cited

GLOSSARY Term or acronym Meaning or definition AC EU Advisory Council CECAF Fishery Committee for the Eastern Central Atlantic CFP Common Fisheries Policy DCF EU Data Collection Framework DSAR Deep-Sea Access Regulation (EU) 2016/2336 EEZ Exclusive Economic Zone EFCA European Fisheries Control Agency EMFF European Maritime and Fisheries Fund EQM Evaluation Question Matrix EUMOFA European Market Observatory for Fisheries and Aquaculture Products FAO Food and Agriculture Organisation of the United Nations FDI Fisheries Dependent Information FTE Full-Time Equivalent GEBCO General Bathymetric Chart of the Oceans GES Good Environmental Status GT Gross Tonnage HD Habitats Directive 92/43/EEC ICCAT International Commission for the Conservation of Atlantic Tunas ICES International Council for the Exploration of the Sea IOTC Indian Ocean Tuna Commission JDP Joint Deployment Plan kW Kilowatt MS EU Member State MSFD Marine Strategy Framework Directive 2008/56/EC MSY Maximum Sustainable Yield NAFO Northwest Atlantic Fisheries Organization NEAFC North-East Atlantic Fisheries Commission NGO Non-Governmental Organisation PC Public Consultation RA Regulatory Area RFMO Regional Fisheries Management Organisation SCIP Specific Control and Inspection Programme STECF Scientific, Technical and Economic Committee for Fisheries TAC Total Allowable Catch UNGA United Nations General Assembly VME Vulnerable Marine Ecosystem WCPFC Western and Central Pacific Fisheries Commission WGDEC ICES working group on deep-water ecology WGDEEP ICES working group on biology and assessment of deep-sea fisheries resources 1.Introduction Fishing for deep-sea species occur on deep-water slopes, ridges and seamounts with gears that can scrape the bottom of the seabed. This leads to important impacts on the deep-sea fauna, which is made of slow-growing and long-lived species, such as coral reefs and garden, sponges, anemones and sea pens, which compose the so-called “vulnerable marine ecosystems” (VMEs). In 2013, the EU introduced the reformed Common Fisheries Policy, which brought an increased focus on the ecosystem approach to managing fisheries. This led to a revision of Regulation (EC) No 2347/2002 that regulated the access to deep-sea fishing until then. In 2016, the EU adopted Regulation (EU) 2016/2336, called the “Deep-sea Access Regulation” (DSAR), governing access to deep-sea fishing and setting conditions for protecting VMEs in international and EU waters. The Deep-sea Access Regulation aims to establish a sustainable exploitation of deep-sea stocks while reducing the environmental impact of these fisheries and preventing significant adverse impacts on VMEs, and to improve the information base for scientific assessment, through data collection. Article 19 of the DSAR foresees that by January 2021, the Commission shall evaluate the impacts of the measures laid down in the Regulation and determine to what extent its objectives have been achieved, as well as a series of 11 specific subjects. In compliance with the Better Regulation guidelines, this evaluation is based on the following five criteria: ·Relevance: To what extent was there a need to adopt the measures under the DSAR? /To what extend does this need continue to exist? /To what extent are measures under the DSAR appropriate to address needs, do they continue to be appropriate to respond to needs? ·Effectiveness: To what extent is the DSAR effective to protect deep-sea vulnerable ecosystems? /To what extent is the DSAR effective in contributing to preserve deep-sea fish stocks? /To what extent is the DSAR effective at improving scientific knowledge on the deep-sea environment? ·Efficiency: What are the average DSAR implementation costs? /Is there scope for simplification of DSAR design and operation? ·Coherence: To what extent is the DSAR coherent with EU international commitments under UN Resolutions 61/105 and 64/72? /To what extent is the DSAR coherent with the North-East Atlantic Fisheries Commission (NEAFC) Recommendation 19.2014? /To what extent is the DSAR coherent with the other non-CFP EU instruments on protection of the marine environment (MSFD, Habitats Directive)? /To what extent is the DSAR coherent with the CFP Regulation and CFP-instruments in relation to fishing opportunities, technical measures, Control and Data collection? /To what extent is the DSAR coherent with other EU measures for VMEs protection? ·EU added value: What is the additional value resulting from the EU measures under the Deep-sea Access Regulation? /What would be the effects of discontinuing the DSAR all other things being equal?

The European Commission launched the evaluation on 17 September 2019 with the publication of a roadmap, open for feedback. A public consultation was also open on the European Commission consultation website between May and August 2020, whose results are available online (summary report and all contributions). To support the evaluation exercise, an external consultant was hired to perform a study. This study was carried out over a period of nine months starting on 10 February 2020. It included data collection and desk research on available reports and statistical data, in-depth targeted consultations of stakeholders, including Member States’ authorities, fishermen associations, research institutions and NGOs. The research covered the DSAR implementation period from 2017 to 2020. In this Staff Working Document (SWD), the Commission presents and reflects on the main outcomes and findings for this evaluation, which provides evidence and data on the functioning of the Deep-sea Access Regulation. It should be noted that the evaluation takes place while important features of the Regulation, i.e. the VMEs closures and the delimitation of the fishing footprint, are yet to be implemented. This SWD therefore outlines conclusions, which are proportionate to the scope of the evaluation. The SWD has the following structure. Firstly, it describes the background of the DSAR and summarises its state of play. The SWD then provides an overview of the methodology used for the evaluation. The main results of the evaluation are presented in the following section according to the five Better Regulation criteria/questions. The last section of the SWD offers the evaluation’s conclusions.



2.Background to the intervention In 2016, the EU adopted the Deep-sea Access Regulation (EU) 2016/2336 to replace Council Regulation (EC) 2347/2002. The DSAR defines specific conditions, which apply to deep-sea fishing activities taking place in EU waters and in the international waters of the North-East Atlantic. It pursues three main objectives: I)improving scientific knowledge on deep-sea stocks and habitats, II)preventing significant adverse impacts on Vulnerable Marine Ecosystems (VMEs) and ensuring the long-term conservation of stocks of deep-sea species, III)ensuring consistency of EU measures with UN Resolutions 61/105 and 64/72. The overarching objective of the DSAR is to bring an effective contribution to the objectives of the Common Fisheries Policy (CFP) defined in Article 2 of Regulation (EU) 1380/2013 of the European Parliament and of the Council for what concerns deep-sea fisheries, namely that the CFP shall: ·ensure that fishing and aquaculture activities are environmentally sustainable in the long-term (Article 2.1), ·apply the precautionary approach to fisheries management (Article 2.2), ·implement the ecosystem-based approach to fisheries management so as to ensure the negative impacts on the marine ecosystem are minimised (Article 2.3). To contribute to these objectives, the DSAR comprises measures including: ·a fishing authorisation scheme for vessels targeting deep-sea species (‘targeting fishing authorisation’) and vessels catching deep-sea species when targeting other species (‘by-catch fishing authorisation’), ·measures for regulating the fishing capacity of fishing vessels engaged in deep-sea fisheries, ·a set of spatial measures designed to prevent the expansion of deep-sea fishing areas, to protect deep-sea vulnerable marine ecosystems (VMEs) from significant adverse impacts caused by fishing gears and to prohibit bottom trawling at depths below 800m, ·a VME encounter protocol prompting fishing vessels to report each encounter with a VME and to immediately cease fishing in the area concerned (the “move-on” rule),

·specific stringent control and monitoring provisions, and ·an observer coverage of at least 20% in the case of fishing vessels authorised to target deep-sea species with bottom trawls or bottom set gillnets and at least 10% for all other vessels authorised to catch deep-sea species as target or by-catch. The DSAR operates in conjunction with other EU instruments implementing conservation and management measures for deep-sea fish stocks and their habitats such as limits on fishing opportunities or technical measures defining how, when and where fishing vessels may exploit the fishing opportunities allocated to them. Figure 1 summarises the DSAR’s intervention logic: the Regulation was built to address the impacts of deep-sea fishing, limit bycatches and account for the high vulnerability of deep-sea flora and fauna. By contributing to the CFP objectives, the DSAR was expected to prevent significant adverse impacts on the deep-sea ecosystem by regulating the use of fishing gears and allow the sustainable exploitation of deep-sea stocks. Figure 1: Logic of the intervention Source: European Commission ‘ Study supporting the Evaluation of the Deep-sea Access Regulation’ , (2020)



3.Implementation and state of Play 3.1.Implementation of the DSAR At the time of completion of this evaluation, the implementation of the Deep-sea Access Regulation is not complete. Indeed, the closure of VME areas below 400 meters to bottom gears and the determination of the existing deep-sea fishing areas, i.e. “the footprint”, remain pending for adoption, following the release of ICES advice on 5 January 2021. Upon the Regulation’s entry into force in 2017, measures with immediate effects were:

·the ban on bottom fishing below 800 meters; ·the establishment of fishing authorisations for target and bycatch fisheries; ·the management of capacity aiming to prevent an increase in capacity above the highest level achieved by Member States in 2009-2011; ·the obligatory reports of VMEs encounters; ·stricter control provisions; ·20% observer coverage for bottom trawls and gillnets fisheries (targeting deep-sea fish) and 10% for other vessels. Following the above considerations, the scope of the evaluation has been defined as follows: 1.EU intervention: the evaluation concentrates on the DSAR and includes considerations of other EU instruments relating to the management of deep-sea fisheries and their impacts on habitats in the scope of the DSAR as defined by its Article 2. For certain provisions of the DSAR, the geographical scope of the evaluation also includes international waters of the North-East Atlantic that correspond to the Regulatory Area of the North-East Atlantic Fisheries Commission (NEAFC); 2.Temporal scope: the evaluation is focused on the period between 2017, the year of entry into force of the DSAR, and 2020 (depending on availability of data); 3.EU Member States: the evaluation includes all Member States having an interest in fisheries in the geographical area of the DSAR as flag State or as coastal State. 15 Member States are potentially concerned by the DSAR: Belgium, Denmark, Germany, Estonia, Finland, France, Ireland, Latvia, Lithuania, Netherlands, Poland, Portugal, Spain, Sweden and the United Kingdom.

3.2.State of play of the DSAR 3.2.1Overview of deep-sea catches EU fisheries of deep-sea species Since 2008, EU reported catches of deep-sea species listed in Annex I of the DSAR follow a decreasing trend of -43%, from 35 000 tonnes per year on average over 2009-2011 to approximately 21 000 tonnes per year since 2015. Figure 2: Evolution of EU reported catches of deep-sea species referred to in Annex I of the DSAR in the North-East Atlantic and in CECAF areas 34.1.1, 34.1.2 and 34.2 (except Greenland waters). Dotted line: trend - Source: Eurostat data Figure 3 shows reported catches of the 12 main deep-sea species by decreasing order of importance. The first seven species in the list represent 90% of total reported catches of deep-sea species. The 12 species in the table equal 97% of the total reported catches of deep-sea species. Common name Scientific name 2016 2017 2018 Average % total Black scabbardfish A. carbo 7 167 6 638 6 018 6 608 32% Greater silver smelt A. silus 2 896 4 091 4 016 3 667 18% Blue ling M. dypterygia 1 981 2 610 3 094 2 562 12% Greenland halibut R. hippoglossoides 1 998 1 559 2 230 1 929 9% Bluemouth (Bluemouth redfish) H. dactilopterus 1 637 1 821 1 657 1 705 8% Roundnose grenadier C. rupestris 1 435 1 624 1 399 1 486 7% Red (blackspot) seabream P. bogaraveo 853 772 693 773 4% Baird's smoothhead A. Bairdii 400 482 400 427 2% Silver scabbardfish (Cutlass fish) L. caudatus 492 349 138 326 2% Common mora M. moro 306 269 237 271 1% Alfonsino B. splendens 229 222 227 226 1% Wreckfish P. americanus 201 272 185 219 1% Other deep-sea species 797 662 604 688 3% Total 20 391 21 370 20 897 20 886 100% Source: based on Eurostat data 97% of total deep-sea catches were fished by six EU Member States: Portugal, France, Spain, the Netherlands, the United Kingdom and Germany. The contribution of deep-sea species in total weight of national landings is the highest for Portugal (close to 4%), and below 1% for all other five Member States.

Source: STECF (2019a) At EU level, total landings of deep-sea species in 2017 (31 370 tonnes) represented 0.4% of the total EU landing of fisheries products (5.2 million tonnes) (STECF, 2019a). NEAFC fisheries and EU share According to catch statistics published by NEAFC, EU catches of deep-sea species referred to in Annex I of the DSAR in the NEAFC Regulatory Area were 3 026 tonnes per year on average between 2016-2018, representing 14.5% of the total EU catches of deep-sea species reported in Figure 3. The EU is by far the main fishing entity exploiting deep-sea species in the NEAFC Regulatory Area with 90% of total catches, the second placed fishing entity is Faroes with 8% of deep-sea catches in the NEAFC Regulatory Area. Fishing entity 2016 2017 2018 Average EU 2 788 3 315 2 974 3 026 Faroes 460 323 30 271 Iceland 37 0 0 12 Norway 20 18 54 31 Russia 14 2 5 7 Total 3 319 3 658 3 063 3 347 Source: NEAFC Fisheries Statistics ( https://www.neafc.org/catch ) The main deep-sea species targeted by EU vessels in the NEAFC Regulatory Area is roundnose grenadier (C. rupestris) with an average of 1 370 tonnes per year between 2016 and 2018 (44% of EU catches in the NEAFC-RA), preceding Greenland halibut (R. hippoglossoides) with 715 tonnes (23%) and black scabbardfish (A. carbo) with 245 tonnes (8%).

Trends over time The evolution of catches of deep-sea species over time (Figure 2) show stable landings since 2015, and no particular signal as from 2017, the year of entry into force of the DSAR. However, significant decreases in the number of fleets targeting deep-sea species were observed up to 2010, with operators reporting the decreasing amount of fishing opportunities being the main driver for the decreasing fishing fleet. For instance, the Total Allowable Catches (TAC) for black scabbardfish and grenadiers in North Western waters was reduced by 40% between 2013 and 2019. NGOs consumers’ campaigns against deep-sea fisheries might have also resulted in a decrease in market demand for deep-sea fish, which reduced the economic incentive to catch them. Over the last three to four years, stability is the main element qualifying deep-sea fishing activity. 3.2.2Main conservation and management measures for deep-sea in EU waters

The DSAR is one of EU’s legal instruments to regulate deep-sea fisheries in EU waters, ensuring the implementation of the Common Fisheries Policy (CFP). Other EU CFP instruments having an impact on the conservation and management of deep-sea fisheries (deep-sea stocks and their habitats) over the period starting in 2017 considered by this evaluation include: ·The biennial deep-sea TAC and quota Regulation fixing fishing opportunities for certain deep-sea stocks; ·The annual general TAC and quota Regulation fixing fishing opportunities for certain stocks, including some deep-sea stocks; ·The Technical Measures Regulation setting rules on how, where and when fishing vessels may exploit fishing opportunities, including fishing opportunities granted for the exploitation of deep-sea stocks; ·The Western Water Multiannual Plan which covers management and conservation of some stocks of deep-sea species as from 2019; ·The landing obligation introduced through the CFP Regulation applicable to most deep-sea fisheries as from 2019; ·The Control Regulation defining rules to ensure uniform control of EU fisheries, including deep-sea fisheries; ·The Data Collection Framework Regulation establishing rules on the collection, management and use of technical and scientific data in the fisheries sector The next figure shows the different CFP instruments listed above and summarises the nature of the main measures which have an impact on the conservation and management of deep-sea fisheries.



Figure 6



4.Method

1.Process The evaluation is carried out in line with the principles commonly applied for the evaluation of EU initiatives, as laid down in the Better Regulation guidelines. The evaluation has been supported by a study undertaken by an external consultant and coordinated by the Directorate-General for Maritime Affairs and Fisheries (DG MARE) and the Executive Agency for Small and Medium-sized Enterprises (EASME), with the support of an Inter-Service Steering Group of Commission services. The evaluation has followed three main phases: (1) the inception phase, in which the structure of the evaluation was defined, based on a conceptual framework; (2) the data collection phase, in which the data was collected, through desk research and consultations, and structured based on the evaluation strategy; (3) the feedback phase, in which the intermediary and final evaluation results were analysed and transposed into conclusions. 2.Data collection and consultations Data collection During the inception phase, data and information stemming from Members States’ reporting obligations were collected, such as available Member States annual reports on the implementation of the DSAR, deep-sea species quota uptake, notifications of VME encounters and requests submitted to the International Council for the Exploration of the Sea (ICES). In view of the numerous interlinkages between the DSAR and other EU and international instruments, all relevant legal texts were collected and analysed. The list of instruments consulted and referenced for the evaluation is shown in Annex 5. Relevant published technical and scientific information (e.g. reports, scientific papers) were gathered and analysed. The list of references reviewed and cited in the evaluation is shown in Annex 6. Consultations A consultation strategy was established with the following key elements: consultation scope and objectives, identification of stakeholders, envisaged consultation activities, their timing and language regime. A roadmap indicating the main milestones of the consultations was published in September 2019, with no comment received. There were two types of consultations implemented in support of the evaluation: targeted consultations and a public consultation. Targeted consultations The methodology included the implementation of a targeted consultation strategy to reach EU stakeholders that have a high interest and/or a high stake in deep-sea fisheries. This facilitated the collection of information in support of the study, and enabled the gathering of opinions and perceptions on the DSAR and on its implementation. Three groups of stakeholders were identified during the inception phase of the study:

·stakeholders impacted by the provisions of the DSAR (e.g. operators of the fishing industry); ·stakeholders in charge of the implementation of the DSAR (e.g. relevant Commission services and EU agencies, MS authorities, research institutes, representatives of the Advisory Councils); and ·stakeholders of the civil society having a stated interest in the conservation of deep-sea ecosystem (e.g. environmental NGOs). Initially, the methodology considered direct contacts with the different stakeholders through face-to-face interviews or telephone calls. However, with the Covid-19 outbreak and associated sanitary measures that culminated during the period initially earmarked to implement the consultations (April-May 2020), the strategy had to be adapted to reach stakeholders using written questionnaires, and with follow-up telephone calls or videoconferences, as appropriate. The targeted consultation period was also extended to June 2020 to factor in the impacts of the lockdown on stakeholders’ ability to provide feedback. Three different types of questionnaires were prepared during the inception phase to ensure adaptation of the questions to the target audience, as follows: ·one questionnaire for Member State authorities, with one version for Member States issuing fishing authorisations to catch deep-sea species and an abridged version for Member States not issuing fishing authorisations; ·one questionnaire for fishermen associations; ·one questionnaire for Advisory Councils and NGOs. Stakeholders were contacted from early April 2020. The full list of stakeholders contacted is presented in Annex 2. Concerning the four Advisory Committees (AC) consulted, two responded (North Western Waters and South Western Waters) but not in the form of a formal AC position paper. The two ACs’ contributions consisted mainly of feedback on what the ACs had already prepared at the time of negotiation of the DSAR, the dissemination of questionnaires to all their members and communication to the evaluation team of individual responses. In total, 73 entities were contacted and 58 responded (79%). Overall, the feedback displays the following strengths: ·All 15 Member States authorities having fishing vessels operating in the North-East Atlantic responded; ·Fishermen associations who responded represent different types of fishing interests in terms of types of fisheries exploited, categories of fishing vessels (large-scale, small-scale) and nationalities; ·There was a good level of engagement by NGOs having a stated interest in the management of deep-sea fisheries.

Public consultation The public consultation on the DSAR was published on the European Commission consultation website between 13 May 2020 and 5 August 2020. The public consultation was open to all citizens and the wider stakeholder community. It was promoted on DG MARE’s website and advertised via stakeholders’ mailing, newsletters and social media posts by DG MARE, EASME and DG ENV. The survey questionnaire was divided into two sections: ·General Questions – to assess the relevance and effectiveness of the DSAR, aimed at respondents with limited or no knowledge of the Regulation ·Specialised Questions – to assess the relevance, effectiveness and coherence of the DSAR, aimed at respondents with a more in-depth knowledge of the Regulation. In total, 156 respondents participated, of whom 112 (72%) also responded to the specialised questions. An overview and conclusions of the consultations activities is shown in Annex 2 “Consultations - Synopsis Report”. 3.Robustness of the findings and limitations The Commission’s assessment of the data and information collected through desk research and consultations is that these are broadly adequate to inform the evaluation. The main factor potentially impacting the robustness of findings is the relatively short time period (i.e. 3.5 years) between the entry into force of the DSAR and its evaluation. Due to the time lag for releasing certain data into the public domain, such as data on catches or on fishing fleet performances, the evaluation could use public data generally referring to 2017 or 2018. As a result, trends measured are limited to the short term. In addition, this evaluation was conducted before the adoption of the Commission’s implementing act for two DSAR flagship measures (i.e. definition of the existing fishing areas and definition of areas where VMEs are known or likely to occur). As a result, the evaluation could consider these two measures only on their principles and objectives, but could not evaluate their effectiveness in detail, nor could the evaluation identify potential unexpected effects stemming from their implementation. 5.Analysis and answers to the evaluation questions The evaluation assessed the performance of the DSAR against the following five criteria: relevance, effectiveness, efficiency, coherence and EU added-value. The evaluation developed 13 specific evaluation questions, which are grouped according to their topic. The overall analysis is based on evidence from both the study supporting the evaluation and the Commission’s own sources. This chapter presents the analysis and provides the answers to the general evaluation questions. A.Relevance The previous Deep-Sea Access Regulation (EC) 2347/2002 concentrated on measures to manage fishing pressure on certain deep-sea fish stocks through capacity management and effort restrictions, but it did not include measures to protect deep-sea habitats from significant adverse impacts from fishing gear, in particular Vulnerable Marine Ecosystems (VMEs). At the same time, the previous Deep-Sea Access Regulation was considered by the Commission to be broadly ineffective as a means to protect deep-sea fish stocks from unsustainable exploitation and to ensure provision of relevant data to support scientific advice.

As from 2004, the United Nations General Assembly (UNGA) adopted three resolutions, which address the management of bottom deep-sea fisheries, including their impacts on VMEs. UNGA Resolutions set out principles and standards that apply primarily in areas beyond national jurisdictions covered or not by a relevant multilateral arrangements like Regional Fisheries Management Organisations (RFMOs). UNGA Resolutions are operationalised by FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas adopted in 2008 pursuant to paragraph 89 of UNGA Resolution 61/105, and published in 2009. EU measures for the management of deep-sea fisheries, including their impacts on deep-sea ecosystems, were not fully consistent with UNGA Resolutions at that time. The need for enhanced protection of deep-sea fish stocks and of their habitats was further underpinned by the adoption of the Common Fisheries Policy implemented as from 2013 through Regulation (EU) 1380/2013, which established as a main objective an ecosystem-based approach to fisheries management. The ecosystem-based approach is conceived to ensure that negative impacts of fishing activities on the marine ecosystems are minimised. An EU intervention was thus needed to better address the four fundamental problems of deep-sea fishing identified by the Commission’s impact assessment: ·The high vulnerability of deep-sea stocks to fishing; ·Fishing with bottom trawls destroys or risks destroying irreplaceable benthic habitats (VMEs) which represent main sources of biodiversity in the deep sea. The extent of destruction that already occurred is unknown; ·Fishing with bottom trawls for deep-sea species produces medium to high levels of undesired catch of deep-sea species; ·Determining the sustainable level of fishing pressure via scientific advice is particularly difficult. Member State authorities and NGOs consulted through the targeted consultations confirmed that in 2016 there was a need for a new instrument to protect deep-sea ecosystems and to bring EU legislation in line with international commitments. Most fishermen associations also supported the need for a revised regime in view of the specificities of deep-sea fisheries, but some fishermen associations (Spain, Netherlands, Germany) expressed a different view stating that existing measures were sufficient on the ground that fishing for deep-sea species did not necessarily mean fishing in VMEs. Contributions to the public consultation on the DSAR confirmed the need to protect deep-sea VMEs (92% of respondents) and deep-sea fish stocks (89% of respondents).



To what extent does this need continue to exist? Deep-sea species and ecosystems are particularly vulnerable to depletion and significant adverse impacts from bottom gears, especially given the longevity and slow recovery potential of many deep-sea species and habitats. While other EU fisheries (e.g. TAC and quota Regulations, Technical Measures Regulation) and environmental legislation (e.g. Habitats Directive, Marine Strategy Framework Directive) also play an important role, these alone are not sufficiently tailored to the particular needs of vulnerable deep-sea species and habitat. Specific provisions are needed in particular for regulating fishing capacity exploiting deep-sea stocks, freezing the fishing footprint, protecting the different species of the seabed ecosystem forming VME habitats (e.g. cold-water corals, deep-sea sponges, sea pen fields), implementing more stringent control and reporting rules and strengthening the enhanced provision of scientific information on deep-sea stocks and habitats. A widespread majority among the Member State authorities and NGOs consulted through the targeted consultations confirmed that the need for a specific deep-sea access regime continues to exist to ensure implementation of measures tailored to the vulnerability of the deep-sea environment. Fishermen associations also supported the continued existence of a specific framework for access to deep-sea fisheries but were more focused on fishing fleets interacting the most with the deep-sea environment. Contributions to the public consultation corroborated these findings with 90% of respondents indicating that there is still a need to prevent significant impacts on vulnerable marine ecosystems and to ensure the long-term conservation of deep-sea stocks, and 85% confirming the need to improve scientific knowledge on deep-sea species and habitats.

To what extent are measures under the DSAR appropriate to address needs, do they continue to be appropriate to respond to needs? The DSAR implements the following four main types of interrelated measures: ·Management of fishing capacity including: üFishing authorisation regimes based on quantities of deep-sea species caught in absolute value or in proportion of total catches. üCapacity ceilings to ensure that total fishing capacity expressed in kW and GT does not exceed 2009-2011 reference levels. ·Protection of deep-sea stocks and deep-sea habitats through spatial restrictions including: üLimitation of exploitation to defined existing deep-sea fishing areas (i.e. the fishing footprint) based on areas exploited in 2009-2011 calendar years, with a specific science-based procedure for authorising fishing outside existing deep-sea fishing areas. üClosure of areas below 400m where VMEs are known or likely to occur to bottom gear. üVME encounter protocol, including move-on rule. ü800m bottom trawl prohibition to ensure full protection of ecosystems and deep-sea fish stocks beyond this depth. ·More stringent monitoring and control rules. ·Enhanced scientific data collection on deep-sea species and on species belonging to the seabed ecosystem. Management of fishing capacity The key instrument for managing fishing capacity engaged in deep-sea fisheries is the DSAR fishing authorisation regime as per Article 5. Fishing authorisation regimes are commonly used in EU legislation, where access to certain stocks or areas needs to be managed and controlled, for example under EU multiannual management plans or for fishing in the waters of third countries. The DSAR fishing authorisation regime provides the legal basis for identifying fishing vessels authorised to catch deep-sea species as target species (the targeting fishing authorisation) or as by-catches (the by-catch fishing authorisation) under defined conditions. The two types of authorisations allow application of different treatments with the possibility to focus conservation and management measures on the part of the fleet presumed to have the greatest impact on deep-sea stocks and habitats. However, the non-exclusive nature of the targeting and by-catch regimes could raise concerns as some Member States issue both types of fishing authorisations to the same vessel. Fishing authorisation regimes are often used to cap the fishing capacity of fishing vessels authorised to access the fisheries beyond certain reference levels. The DSAR includes such mechanisms through its Article 6 by limiting the fishing capacity (expressed in kW and GT) of vessels eligible to targeting fishing authorisations to 2009-2011 levels, whichever year provides the higher figure.

The DSAR fishing authorisation regime and the associated limitation mechanisms are relevant to control and manage the fishing fleet exploiting deep-sea species. None of the stakeholders consulted challenged the principle of regulating access to deep-sea fisheries through fishing authorisations. However, fishermen associations and NGOs indicated that the implementation modalities of the DSAR fishing authorisation regime, based on a list of designated deep-sea species, may not be fully relevant to achieve DSAR objectives. Fishermen associations and NGOs further challenged the relevance of the by-catch fishing authorisation regime as a mechanism to contribute to the protection of the deep-sea environment on the ground that fishing vessels issued with such fishing authorisation are subject to few DSAR measures and are exempt from limitations of their fishing operations within the footprint. The provision on capacity limitations appears to be less relevant now with the reduction of the number of fishing vessels exploiting deep-sea stocks. This is interpreted by the respondents as a result of increased limitations on fishing opportunities (TAC and quotas), spatial restrictions (800m bottom trawl prohibition) and, as reported by fishermen associations, the decreased economic incentives to catch deep-sea species as a result of NGOs’ campaigns against consumption of deep-sea fish. The forthcoming implementation of the DSAR footprint delimitation and closure of VME areas will probably impose additional spatial restrictions likely to further limit the fishing capacity deployed in deep-sea fisheries. Protection of deep-sea stocks and deep-sea habitats through spatial restrictions Three measures recommended by the United Nations General Assembly to protect deep-sea VMEs from significant adverse impacts caused by fishing gears are reflected in the DSAR: -the limitation of operations of fishing vessels targeting deep-sea fish to existing deep-sea fishing areas (Article 7 of the DSAR), i.e. the fishing footprint, with specific procedures for the authorisation to fish outside (Article 8.5) i.e. exploratory fisheries, -the closure of areas below 400m where VMEs are known, or likely, to occur to fishing vessels using bottom gear (Article 9.6), -the VME encounter protocol including a move-on rule (Article 9.2). The three measures have already been implemented in the NEAFC Regulatory Area. The implementation of these measures through the DSAR is relevant to protect deep-sea VMEs in EU waters while ensuring alignment of EU legislation with recommendations of the United Nations General Assembly. While none of the stakeholders consulted through targeted consultations challenged the relevance of these three measures to contribute to DSAR stated objectives, they mentioned that the forthcoming implementation modalities will have an effect on the extent to which the measures respond to needs. In addition, NGOs suggested that the application of VMEs protection to depths below 400m is not appropriate to protect VMEs present above that depth. The 800m bottom trawl prohibition has two main expected effects: I)protection of deep-sea habitats against interactions with bottom trawls irrespective of the characteristics of the habitats (i.e. VMEs or not) and II)protection from fishing pressure of deep-sea species living mostly below that depth like grenadier and orange roughy, and commercial deep-sea species for which depths below 800m form a major part of their natural habitat (i.e. black scabbardfish). This measure also protects non-commercial species often caught as by-catches by bottom trawlers below 800m like deep-sea sharks or chimaera. The 800m bottom trawl prohibition is appropriate to address the needs for enhanced protection of deep-sea stocks and their habitats below that depth. Feedback from targeted consultations on the relevance of the 800m bottom trawl prohibition reveals two radically different perceptions of the relevance of the measure. For NGOs, the measure is the most appropriate way of preventing significant adverse impacts on VMEs within the framework of deep-sea fishing and ensuring the long-term conservation of deep-sea fish stocks. This view is shared by 88% of contributors in the public consultation. For fishermen associations, the 800m bottom trawl prohibition is irrelevant as fishing below 800m depth does not entail destruction of VMEs if the gear is towed over muddy bottoms. According to them, the measure has been adopted without reasonable scientific justification. Fishermen associations with fishing interests in South-Western Waters (mainly from Spain and Portugal) further report that such prohibition may be counterproductive as waters deeper than 800m are relatively close to the shore, forcing vessels to move closer to the coast to deploy their gears with increased risks of interactions for small-scale vessels. Member State authorities did not comment on the relevance of the measure but indicated that it was a reasonable compromise to reconcile the opposing positions of civil society and fishing operators.

More stringent monitoring and control rules Article 10 of the DSAR details specific control provisions of the EU control system applying in the context of stocks subject to the multiannual plans referred to in Article 9 of the CFP Regulation and for which compliance with existing rules is assessed as essential to reach conservation objectives. In view of the vulnerability of deep-sea stocks and VMEs, it was relevant to implement the more stringent control rules applied in the context of multiannual plans through the DSAR. The main control rule created by the DSAR (Article 13) is an obligation to report catches on a haul-by-haul basis when engaging in a deep-sea métier or when fishing below 400m, as opposed to on a daily basis under the general rule. This more stringent reporting obligation is essential to improve monitoring of fishing activities on deep-sea stocks or in waters deeper than 400m as fishing vessels may exploit different stocks or areas during the same day. The haul-by-haul reporting obligation generates specific monitoring information on deep-sea fishing operations that would otherwise be amalgamated with information on fishing vessel activities on other non-deep-sea stocks during the same day. None of the stakeholders consulted challenged the relevance of applying the more stringent control rules in the context of EU multiannual plans to deep-sea fisheries. The haul-by-haul reporting requirement is already imposed on fishing vessels operating in the NEAFC Regulatory Area and it was considered logical to apply the same requirement in EU waters. Contributions to the public consultation also indicated a large majority of respondents (>80%) supporting more stringent control rules on vessels exploiting deep-sea species. Enhanced scientific data collection on deep-sea species and on species belonging to the seabed ecosystem Article 15 of the DSAR foresees that scientific data on deep-sea species, including those discarded, and species belonging to the seabed ecosystem are collected by Member States under the mechanisms implemented through the EU Data Collection Framework (DCF). This provision is appropriate to ensure that scientifically-based sampling strategies with data collected are of sufficient quality to be considered for deep-sea fish stock assessment purposes and for improved knowledge on areas where VMEs are known, or likely, to occur. The DSAR also introduced a specific observer scheme for fishing vessels authorised to catch deep-sea species, with quantitative coverage objectives for Member States. The purpose of the DSAR observer scheme was to ensure the collection of data on catches, by-catches of deep-sea species, encounters with VMEs and other relevant information for the effective implementation of the DSAR. The spirit of the DSAR observer scheme was to ensure sufficient scientific monitoring of the activities of the fleet authorised to catch deep-sea species. Therefore the definition of a uniform observer coverage, at levels higher than those generally implemented under the DCF, was appropriate to meet the needs for improved scientific knowledge on deep-sea species and habitats. Contributors to the public consultation widely supported the principle of a specific observer coverage (74% of respondents). Stakeholders consulted, and a large majority of contributors to the public consultation, (>80%) confirmed that enhanced data collection of deep-sea species and their habitats is needed to better inform decision-making. Some fishermen associations (Spain, Portugal) highlighted that it is not suitable for small-scale vessels to host an observer, and the DSAR provides waivers for such cases. Conclusion on the relevance of the DSAR In conclusion, the DSAR measures are relevant and appropriate to address the needs identified to i) improve scientific knowledge on deep-sea species and their habitats and ii) prevent significant impacts on VMEs within the framework of deep-sea fishing and ensuring long-term conservation of deep-sea fish stocks. Stakeholders consulted in the framework of the targeted consultations did not identify other types of measures that could have been relevant to contribute to the DSAR objectives given other CFP conservation and management measures (e.g. Fishing Opportunities Regulations, Technical Measures) in place. Most measures remain relevant as needs identified ex-ante remain the same. By contrast, the capacity management measure of the DSAR Article 6 is probably less relevant now than at the time of the adoption of the DSAR. This assessment is based on the decreasing levels of fishing activities on deep-sea stocks as a result of increased limitations on fishing opportunities (TAC and quotas), strengthened by the landing obligation and spatial measures (800m bottom trawl prohibition), combined with the decreased economic incentive to catch deep-sea species as a result of NGO campaigns targeting market outlets that offer deep-sea species to consumers (as reported by fishermen associations). The relevance of the by-catch fishing authorisation regime remains important as it results in the identification of fishing vessels authorised to catch deep-sea species and in the application of the observer coverage.

B.Effectiveness The DSAR includes four main measures to protect the deep-sea ecosystems, including VMEs: 1.Limitation of deep-sea fishing to defined fishing areas (i.e. the fishing footprint) based on areas exploited in 2009-2011, with a specific authorisation procedure for fishing outside this footprint; 2.Closure for bottom gears of areas where VMEs are present or likely to occur below 400m; 3.Protocol to signal encounters with VMEs and a move-on rule; 4.Prohibition for bottom trawl to fish below 800 meters to ensure full protection of ecosystems and deep-sea fish stocks beyond this depth. The first two measures have not yet been implemented (Article 7.2 for the determination of existing fishing areas and Article 9.6 for the closure of VME areas below 400m to bottom gear). The two other measures (VME encounter protocol and 800m bottom trawl prohibition) were immediately applicable as of 2017. The main reason for the delayed adoption of the implementing act for the first two measures is a scientific advisory process that took longer than the single year established by the DSAR. The delayed implementation of the two measures can be explained: I)by delayed submission of relevant data by some Member States and II)by the relative complexity of the advice to be provided by ICES, which includes new and specific methodologies for the VMEs likelihood, analysis of impact on fishing activities and options for closure of areas based on a trade-off analysis. In the meantime, VMEs areas are not closed to bottom fishing and the footprint is not defined. However, the DSAR includes a safeguard clause, which limits the issuance of targeting fishing authorisations to areas previously exploited by fishing vessels. The safeguard clause has a different temporal coverage (the last three years as opposed to the 2009-2011 period), and does not establish how past fishing areas should be defined. A review of Member States’ annual reports to the Commission suggests that Member States identify authorised fishing areas on a statistical rectangle basis, which may be appropriate, or on an ICES division (e.g. 6a) basis, which is probably too large, or on a mix of both spatial references. The effectiveness of the safeguard clause may be undermined by the fact that Coastal States may not be fully aware of the licensing conditions imposed by each flag state for access to certain areas, possibly hindering monitoring of compliance. The VME encounter protocol, including the move-on rule, was applicable as from 2017 but only to bottom trawls and longlines (Annex IV of the DSAR). However, no VME encounter has been reported to date. This possibly reflects a combination of a general decline in bottom fishing activity in EU waters and an enhanced awareness and capability of vessels to avoid coral and sponge areas. It is also known that bottom trawls are designed to catch fish which makes them poor sampling tools for most sessile benthic organisms while the catchability of VME indicator species is unknown (Auster et al., 2011). Additionally, the sampling effectiveness is likely to be species-specific and for some species the trawl may only retain a very small proportion of the VME species actually impacted (Parker et al., 2009). It cannot be excluded however that the lack of reports also reflects failure to report actual encounters. This may not be intentional as fishermen associations reported that the identification of VME indicator species by masters of fishing vessels is beyond their technical capacity (determination of the dead or live status of coral and/or sponge taxa brought on-board in the net). Scientific observers considered by Article 16 of the DSAR may support through their expertise, but i) their primary task is to collect data without interfering with vessel operations, and ii) they cover 10% or 20% of fishing activities, depending on the nature of the fishing authorisation held. NGOs consulted indicated that the VME encounter protocol should be considered only as a backup/safeguard measure to ensure the protection of undiscovered VMEs that could not be included in stronger spatial protection measures like the footprint or closures of VMEs areas. As a result, the VME encounter protocol seems a useful safeguard measure but it cannot be considered as an effective conservation measure on its own given the poor sampling effectiveness of VME indicator species by commercial fishing gears and the lack of adequate resources on-board to analyse catches of VME indicator species and qualify them as an encounter with a VME.

The prohibition to fish below 800 meters with bottom trawl was applicable immediately at the entry into force of the Regulation. The measure is effective to protect any type of ecosystem below 800m irrespective of their attributes in relation to determination of VME status. Obviously, the measure does not address the protection of VMEs above that depth or protection from significant adverse impacts on VMEs caused by other types of bottom contacting fishing gear (e.g. longlines) below 800m. While it is not within the DSAR’s remit to address the effective protection of VMEs located above 400m depth, it is to note that scientific evidence compiled for this evaluation suggests that VMEs are present in EU waters in the 200 – 400m depth band. As a result of the delayed implementation of two of its key measures (i.e. the definition of the fishing footprint and the closure of areas below 400m for VMEs protection), the DSAR has not been effective to date in protecting deep-sea vulnerable marine ecosystems from significant adverse impacts caused by bottom fishing gear between 400-800m depths. This view was shared by more than 70% of respondents to the public consultation with some feedback highlighting that no VME area has been closed so far despite DSAR commitments. Whilst the delayed implementation of two DSAR key measures for protection of VMEs may be explained by the complexity of the underlying scientific advisory process and associated data requirements, NGOs reported that there is a discrepancy between the Union’s pledges for protection of the deep-sea ecosystems and actual advancement in terms of achievements. To what extent is the DSAR effective in contributing to preserve deep-sea fish stocks? The main measures for conservation and management of deep-sea fish stocks are implemented through other EU CFP-related regulations, in particular the TAC and quota Regulations (fixing levels of fishing opportunities) and the Technical Measures Regulation (defining how, when and where fishing vessels may exploit available fishing opportunities). The DSAR does not include conservation and management measures, which aim to regulate the level of fishing mortality of deep-sea fish stocks. However, two DSAR measures could be expected to contribute to preservation of deep-sea stocks: the capacity management measures (Article 6) and the 800m bottom trawl prohibition (Article 8.4). Capacity management The capacity management measures enacted through Article 6 of the DSAR seek to ensure that the aggregate fishing capacity of fishing vessels issued with a targeting fishing authorisation does not exceed 2009-2011 levels, whichever year provides the highest figure. Although limits to fishing capacity are frequently enforced to contribute to the management of fisheries in EU waters and in waters under the management mandate of RFMOs, the design of the DSAR measures raises doubts regarding the potential effectiveness of the measure: ·The criteria defined by the DSAR to establish capacity levels applicable to vessels having been issued a targeting fishing authorisation leave room for interpretation by Member States. For instance, capacity ceilings are unspecific on gear used. For some Member States, the national capacity ceiling can include capacity of different fishing fleet segments such as large-scale bottom trawlers or pelagic trawlers and small-scale vessels using hooks. As a result, it is likely that capacity limits established by Member States are not defined on a uniform basis, with the consequence that limits might not correspond to the assumed ambition of the DSAR to cap deep-sea fishing capacity levels in EU waters at the levels of fishing capacity deployed in the same waters in 2009-2011. ·The capacity limits defined at Member State levels include all types of vessels. They do not make a distinction regarding the ability of the vessels to catch deep-sea species and the extent of significant adverse impacts on VMEs that the vessels could generate. It is to note that information on the fishing capacity of vessels with a targeting fishing authorisation is not available, nor is the capacity ceiling that the current fishing capacity should not exceed. The evolution of catches of deep-sea species since 2009-2011 follows a decreasing trend (-43% since the reference period), suggesting a corresponding decrease in fishing effort. However, the decreasing trend in catches, and possibly effort, does not provide information on the evolution of the fishing capacity deployed on deep-sea stocks. It may be the result of the deployment of the same amount of fishing capacity, but for fewer days in the year compared to the reference period. However, in practice, contributions from consulted Member States and fishermen associations confirmed that the number of vessels exploiting deep-sea species decreased significantly as a result of decreasing fishing and market opportunities. Other considerations suggest that capacity management regimes may not be fully effective instruments to support fisheries management: ·The European Commission recently raised concerns that capacity management as a whole is undermined due to the lack of compliance by Member States that do not generate reliable capacity indicators for registration and certification purposes. ·Effort management does not equal capacity management. Both can be categorised as input management (as opposed to output management such as quotas), but the two are different in nature. Effort management assumes the existence of capacity, and then limits the use of the available capacity through specific measures, such as technical measures. Overall, it is likely that the effectiveness of the capacity management measures enacted through Article 6 of the DSAR has a somewhat limited contribution to the preservation of deep-sea fish stocks.

The prohibition for bottom trawl below 800 meters The 800 meters bottom trawl prohibition had the immediate effect of preventing bottom trawlers from accessing fishing areas where some commercial deep-sea species are abundant. According to ICES scientific reports and as confirmed by fishermen associations, the 800m bottom trawl ban effectively protects deep-sea species with habitats below that depth, such as orange roughy and grenadiers, and decreases the availability of deep-sea species with the majority of biomass below 800m, such as black scabbardfish. ICES has indeed stated that “fishing effort on black scabbardfish has been decreasing probably associated with the ban of trawling in deeper area”, “before the ban on trawling deeper than 800m, some spatial overlap between orange roughy and fisheries remained […]. Following the application [of the ban], this bycatch might be minor because the fraction of orange roughy biomass occurring shallower than 800m is minor or inexistent” and that “as a consequence of the ban of fishing deeper than 800m, the core depth range of the roundnose grenadier is no longer accessible to trawlers”. Figure 7 shows the evolution of catches of these species and a clear decrease starting from 2016. Source : catch data published in ICES (2020a) Note: 2016 is the last year before prohibition of bottom trawling below 800m A comparison of the results of catch sampling by scientific observers on-board French deep-sea trawlers in 2013 and in 2018 indicates that the 800m trawl prohibition has been effective in reducing discards with a drop from 22.1% to 4.8% (see figure 8 below). The measure also led to a decreased abundance of deep-sea sharks in discards, both in quantity and in the number of species caught, as noted by ICES “the ban in 2016 of trawling deeper than 800m in EU waters might have resulted in reduction of deep-water sharks bycatch to low levels in trawl fisheries”.



Figure 8: Evolution of proportion of total weigh of discards / total weight of catches by French trawlers targeting deep-sea species in the West of Scotland and in the West of Ireland Source: IFREMER – programme OBSMER. Data for métier OTB/OTT_DWS in the West of Scotland and in the West of Ireland The positive effect of the 800m bottom trawl prohibition of 2017 is to be distinguished from the landing obligation, which entered into force for most deep-sea species in 2019 only. Despite the landing obligation applying to greater silver smelt caught in small pelagic fisheries since 1 January 2015, all other deep-sea species are under the landing obligation since 1 January 2019. The only known exemption running until 2021 concerns black scabbardfish caught by longlines in South-Western Waters.

Nevertheless, the 800m bottom trawl prohibition does not yet have a visible effect on the status of all exploited stocks. According to published ICES advice, the exploitation status of deep-sea stocks reviewed has been stable over the past periods (2015-2017 or 2016-2018). There are no stocks exploited sustainably that transitioned to being exploited unsustainably or vice-versa. It will probably take another couple of years to detect any impacts of the measure on deep-sea fish stocks providing it is possible to disaggregate the effects of fishing pressure from the effects of natural variations (i.e. recruitment) on biomass variations. However, information on catches shows that catches of the main deep-sea species remain consistently well below the TACs allocated (figure 9 below) which may suggest that the current fishing pressure is low or very low on certain stocks. Species Stock (TAC code) 2017 2018 2019 TAC 2019* (tonnes) Black scabbardfish (A. carbo) BSF/56712 64% 66% 49% 2 470 BSF/8910 63% 57% 67% 2 832 BSF/C3412 75% 77% 67% 2 189 Alfonsinos (Beryx spp.) ALF/3X14 94% 96% 102% 252 Roudnose grenadier (C. rupestris) RNG/03 0% 0% 0% 50 RNG/5B67 10% 14% 9% 2 558 RNG/8X14 47% 39% 28% 2 281 Red seabream (P. bogaraveo) SBR/678 85% 92% 88% 117 SBR/9 65% 64% 35% 149 SBR/10 94% 83% 65% 576 Deep-sea sharks DWS/56789 16% 15% 4% 7 DWS/10 0% 3% 2% 7 DWS/F3412C 5% 1% 0% 7 Greater silver smelt (A. silus) ARU/3A4-C 30% 18% 7% 1 234 ARU/567 92% 75% 95% 4 661 Blue ling (M. dypterygia) BLI/5B67 15% 19% 19% 11 378 BLI/24 32% 20% 35% 53 Greenland halibut (R. hippogloides) GHL/2A-C46 27% 18% 18% 1 250 GHL/1/2/INT 66% 94% 121% 900 Source: DG MARE Note: TAC 2019 is as published in the relevant Regulations. It does not take into account possible exchanges with third countries for shared stocks. Whilst capacity management measures introduced by the DSAR are unlikely to effectively contribute to the preservation of deep-sea fish stocks, the 800m bottom trawl ban has been effective in reducing the availability of some key commercial deep-sea species to the reach of bottom trawlers, leading to an effective decrease of the quantities of deep-sea species discarded, in particular deep-sea sharks. The DSAR does not include other main conservation and management measures for exploited deep-sea stocks. Results achieved in conserving deep-sea stocks depend largely on the effectiveness of other EU conservation and management measures, including the TAC and quota Regulations and the Technical Measures Regulation. In some cases, results on conservation of deep-sea stocks extending beyond EU waters are also dependent on measures implemented by third countries in their waters. Examples include stocks of greater silver smelt, blue ling or Greenland halibut in North Western Waters shared with Northern third countries (e.g. Norway and Faroes) or stocks of black scabbardfish and red seabream in South Western Waters shared with Morocco. To what extent is the DSAR effective at improving scientific knowledge on the deep-sea environment? The DSAR included two main measures to improve scientific knowledge on deep-sea fish stocks and deep-sea habitats: a scientific data collection scheme placed under the umbrella of the broader EU Data Collection Framework (Article 15) and a specific observer coverage (Article 16). Scientific data collection scheme The DSAR measure ensuring data collection under the overarching framework of the Data Collection Framework (DCF) supported the collection of scientific information on exploited species according to scientific methodologies sufficiently robust and representative for stock assessment purpose. The inclusion of deep-sea species in the list of species subject to collection of biological data by Member States under the DCF ensures the operationalisation of the DSAR measure. As a result of increased scientific data and according to ICES feedback, two deep-sea stocks (black scabbardfish and greater silver smelt) are likely to move from the ICES category 3 that comprises stocks for which MSY reference points are not available, to ICES category 1 that includes stocks subject to full analytical assessment with MSY reference points available. Availability of data was further underpinned by the DSAR obligation to report catches on a haul-by-haul basis when engaged in a deep-sea métiers or when fishing below 400m (Article 13). Without this DSAR requirement, catch data would have been reported on a fishing day basis, amalgamating hauls targeting deep-sea species and hauls targeting other species. Feedback from scientists through the targeted consultations confirmed the positive contribution of the haul-by-haul reporting to scientific knowledge. However, scientific information for most deep-sea species stocks remain insufficient for stock assessment purposes. According to feedback from scientists, and confirmed by fishermen associations, the relatively low catch levels of most deep-sea species prevents any further improvement as the amount of available data will remain insufficient for stock assessment purposes, even if sampling rates are increased. In fact, the DSAR measures resulted in lower catches of some species thus decreasing the amount of data available for stock assessment purposes. ICES noted the example of the stock of grenadiers in subareas 6 and 7 and divisions 5.b and 12.b for which catches decreased significantly as a result of the 800m trawl ban enforced by the DSAR. The stock was downgraded from data-rich category 1 to data-poor category 5 when it was last assessed in 2018. In addition, the DCF exempts Member States from collecting biological data on fish stocks when Member States catches are less than 200 tonnes per year. This is the case for most deep-sea species caught as by-catches or deep-sea species targeted by small fleets, like for deep-sea crabs, which are targeted by German vessels in quantities below that threshold and thus exempted from data collection obligations.

Observer coverage The observer coverage mandated through Article 16 was designed to ensure sufficient coverage of fishing vessels activities by on-board scientific observers to sample landings and discards of deep-sea species as well as species belonging to the seabed ecosystem, in particular VME indicator species. Although the measure was fully relevant to increase amount of data available, its design probably hindered its potential effectiveness. The DSAR sets quantitative targets for observer coverage: 20% for vessels using bottom trawls and bottom set gillnets with a targeting fishing authorisation and 10% for all other vessels with a targeting or bycatch fishing authorisation. But the DSAR does not define the reference for calculating the percentage (e.g. % number of vessels, % number of trips, % number of fishing operations). According to information collected during the targeted consultations, Member States applied the DSAR observer coverage differently, resulting in some Member States applying a higher observer coverage to vessels when their fishing operations target deep-sea species (e.g. 20% or 10% of the number of vessels having a fishing authorisation, or 20% or 10% of the number of trips of the fleet concerned), and the commonly reported national DCF observer coverage (≈ 1% of fishing trips) in other cases. ICES was also unable to provide the advice foreseen by January 2018 mostly because of the difficulty to collect relevant quantitative information on Member States’ implementation of the observer coverage. The diverging implementation of the observer coverage among Member States makes the establishment of quantitative targets, their assessment and comparison, very complex in practice. Nevertheless, all fishing operators boarded scientific observers as evidenced by the absence of sanctions foreseen in Article 14b of the DSAR in case of refusal to board an observer. Thus, potential shortcomings cannot be attributed to a lack of cooperation from fishing operators. The DSAR observer scheme is defined as a scientific observer scheme, as opposed to a control observer scheme in the sense of the Control Regulation (EU) 1224/2009. Member States implemented it as such via observations on vessels authorised to catch deep-sea fish under the overarching rules foreseen by the Data Collection Framework. The DSAR observer scheme as applied by Member States did therefore not monitor compliance with DSAR rules, such as the control of the 800 meters limit and the adherence to the VME encounter protocol by fishing masters, although Article 16.1 of the Regulation states that the observer coverage is expected to also provide “relevant information for the effective implementation of this Regulation”. In terms of data collected, scientific observations on-board vessels have been reported by scientists as effective to collect data on total catches and discards of deep-sea species useful to support stock assessment. Concerning the collection of scientific data on species belonging to the seabed ecosystem, in particular VME indicator species, the DSAR observer scheme has been ineffective as evidenced by the absence of records collected on EU commercial vessels included in the ICES VME database, which provides ICES with an essential resource for some core work, including advice in relation to the implementation of the DSAR. In fact, all VMEs records shared by EU Member States with ICES are coming from scientific surveys. The reason for the lack of effectiveness of the DSAR observer scheme to collect scientific information on VMEs may be attributable to an absence of VMEs indicator species in vessels’ catches while observers where on-board, but may also be attributable to inadequate implementation of the scheme by Member States with scientific observers not being trained for the identification of VME indicator species at the required taxonomic levels. Article 16.3 of the DSAR introduced an obligation for the Commission to seek scientific advice on whether the observer coverage is sufficient to achieve the collection of data on catches and by-catches of deep-sea species and encounters with VMEs and other relevant information for the effective implementation of the Regulation. Although the Commission made a request to ICES, ICES declined and indicated that it was firstly necessary to assess Member States’ compliance with DSAR observer coverage before considering reviewing its functioning. In view of the diverging implementations of Article 16.1 of the DSAR, an assessment of compliance with the DSAR rules is difficult. Conclusion on the effectiveness of the DSAR The DSAR has contributed to the preservation of deep-sea fish stocks through the prohibition to fish below 800 meters with bottom trawls. The prohibition decreased accessibility of some key commercial deep-sea species to bottom trawlers, such as grenadiers, orange roughy and black scabbardfish. This contributed to a decrease in catches of other deep-sea species caught as by-catches, in particular deep-sea sharks. The DSAR, in conjunction with the EU DCF, has effectively improved scientific knowledge on the main commercial deep-sea stocks. Biological data collected by Member States, including data on catches and discards collected by scientific observers on-board fishing vessels, have been adequate to upgrade the quality of the assessment of the status of at least two deep-sea species (three stocks of greater silver smelt and black scabbardfish). However, the relatively small catches of most other deep-sea species prevent any further improvement of their stock status, even if the sampling rate is increased. Data available for stock assessments depend on the amount of catches, and measures to reduce fishing pressure, such as the 800m bottom trawl ban, can limit the quality of stock assessments as evidenced in the case of grenadiers. Contributions to the public consultation acknowledged that scientific knowledge has improved overall, notably as a result of deep-sea research projects co-funded by the EU.

The DSAR observer coverage probably has had limited influence on improving the scientific knowledge on VMEs. Observations on commercial vessels authorised to catch deep-sea species did not result in new information being recorded in the ICES VME database. The reason for the lack of contribution of the DSAR observer scheme to knowledge of VMEs may be attributable to an absence of VME indicator species in vessels’ catches, but may also be attributable to an uneven implementation of the coverage by Member States and a lack of training among observers deployed to identify VMEs indicator species. C.Efficiency No Member State authority could provide detailed quantitative information on the implementation costs of the DSAR. The fishing authorisation regime is the main driver for administrative cost for Member States. Other costs related to the DSAR are a relatively small part of the monitoring, control and surveillance of fishing vessels under Member States competence or of the collection of scientific data under the EU Data Collection Framework. In view of the relatively low share of deep-sea species catches in total national catches (Figure 11), the fraction is likely to be small, and probably too small to support an analytical identification of costs. Based on the number of fishing authorisations issued under the scope of the DSAR by the Member States (Figure 10), the implementation costs of the DSAR are likely to be the highest for the three Member States (Portugal, Spain and France) issuing the largest number of targeting and by-catch fishing authorisations. By contrast, implementation costs are comparatively lower for Member States issuing limited numbers of fishing authorisations (Germany, Estonia, Lithuania, Netherlands, Poland and the UK). There are no DSAR implementation costs for Member States not issuing deep-sea fishing authorisations (Belgium, Denmark, Finland, Ireland, Latvia and Sweden). 2017 2018 2019 2020**** MS Target By-catch Total Target By-catch Total Target By-catch Total Target By-catch Total BE 0 0 0 0 0 0 0 0 0 0 0 0 DE 2 11 13 3 12 14 2 10 1 8 9 DK 0 0 0 0 0 0 0 0 0 0 0 0 EE** 0 3 3 0 3 0 0 0 0 0 0 0 ES 69 5 +599* 184 275 459 198 201 399 196 192 388 FI 0 0 0 0 0 0 0 0 0 0 0 0 FR 42* 17 71 88 19 89 108 16 79 95 IE 12* 0 0 0 0 0 0 LT** 0 2 2 0 5 0 0 3 3 0 0 0 LV 0 0 0 0 1 1 0 0 0 0 0 0 NL 8 7 8 8 6 6 6 6 6 6 PL** 1 1 2 1 1 2 1 1 2 1 1 2 PT*** 624 2 626 324 150 434 429 125 SE 0 0 0 0 0 0 0 0 0 0 0 0 UK 6 51 57 6 45 51 Total 702 75 763 542 571 1 057 Source: Member States report to the Commission (Article 15 of the DSAR) for 2017 and 2018; consultant’s survey for 2019 and 2020 Note: * fishing authorisations issued according to criteria set out by the previous deep-sea Regulation 2347/2002. ** Information reviewed, slightly different from information submitted to the Commission *** For Portugal, numbers of targeting fishing authorisations reported for 2019 include 127 for mainland, 280 for Azores and 22 for Madeira. Number of by-catches authorisations provided only for mainland **** Data collected until April 2020 Anecdotal qualitative information on likely recurring and one-off administrative costs is presented below: Recurring administrative costs ·Two Member States (Germany and Portugal) raised the issue that the management of fishing authorisations entails significant administrative costs but did not provide an estimate of these costs. Other Member States issuing large numbers of fishing authorisations (Spain and France) did not specify this administrative task as entailing significant administrative costs. Note that the DSAR fishing authorisation regime is one of the fishing authorisation regimes implemented through CFP-related regulations. There are several comparable fishing authorisation regimes for access to EU fisheries subject to multiannual plans and for access to waters under third countries’ jurisdictions and international waters under RFMOs’ management mandate.

·No Member State reported specific administrative costs for monitoring, control and surveillance of fishing vessels whose activities fall under the scope of the DSAR. According to feedback received, control of the national fishing vessels authorised to catch deep-sea species is part of the national control strategies with no possibility to separate actions and associated administrative costs stemming from DSAR provisions. ·Two Member States (Germany and Netherlands) highlighted that the annual reports to the Commission pursuant to Article 15.5 of the DSAR entail administrative costs that could be reduced given that part of the information requested by the Commission is already reported or accessible under the provisions of the Control Regulation (EU) 1224/2009 (e.g. catches of deep-sea species against quotas, fishing authorisations issued). One-off implementation costs ·One Member State (France) reported relatively high deployment of resources to define depth contours considered by the DSAR and to introduce them in the VMS software to monitor compliance. ·One Member State (Netherlands) mentioned that the identification of capacity limits considered under Article 6 of the DSAR has been time-consuming. ·One Member State (Netherlands) noted that communication with owners of fishing vessels falling under the scope of the DSAR to explain what the DSAR would require for them mobilised some administrative resources. The implementation cost of the DSAR observer programme was not reported to entail significant administrative costs by and from Member States. The main reasons being: I)the implementation of the DSAR observer programme is part of the implementation of the broader DCF observer scheme, with a likely share of the DSAR observer scheme commensurate with the relative importance of deep-sea fisheries compared to all national fisheries (i.e. often less than 1% for most Member States, except 4% for Portugal, see figure 11 below)

Source: STECF (2019a) for weight of total landings II)costs of implementation of data collection schemes by Member States, including DCF observer schemes, are 80% covered by the EU through the European Maritime and Fisheries Fund (EMFF), with new EMFAF post 2020 carrying over EU support for data collection. However, Member States reported that the DCF budget to support scientific observer programmes is limited with some difficulties encountered to ensure adequate sampling rates of all national fishing fleet segments included in the scope of the DCF. In this respect, Member States raised concerns that if the DSAR observer coverage was to be increased, this would mean fewer resources being deployed on other fishing fleet segments, if the DCF budget is not increased accordingly. Fishermen associations were not concerned about the administrative costs of implementing the DSAR. Feedback received, in particular from fishermen associations representing small-scale vessels (Spain and Portugal) and pelagic vessels (Germany and Netherlands), was more on the relevance of these administrative costs considering their assumed low or insignificant impacts on deep-sea ecosystems (no bottom gear, deep-sea species taken as bycatches). Is there scope for simplification of the DSAR design and operation? Analysis and feedback from consultations supported the identification of scope for possible simplification of the DSAR in relation to: I)the criteria for issuing fishing authorisation II)the by-catch fishing authorisation regime III)the geographical scope of application of the DSAR IV)Member States’ annual reports to the Commission. The criteria for issuing fishing authorisation The DSAR fishing authorisation regime is based on a list of designated deep-sea species and it had the likely unexpected effect of bringing under the scope of the DSAR types of fishing vessels not using bottom gears and hence unlikely to generate significant adverse impacts on VMEs. For instance, pelagic trawls are catching greater silver smelt (A. silus), and small-scale fleets are exploiting deep-sea species when they are available in shallow waters (i.e. red seabream, P. bogaraveo) or close to the coast, with in this case also unmonitored recreational fisheries contributing to fishing mortality. According to feedback from many Member States’ authorities, fishermen associations and NGOs, the fishing authorisation regime could be simplified so as to concentrate the implementation of the DSAR on vessels likely to generate significant adverse impacts on VMEs in deep-waters, which suggests the importance to consider the type of fishing gear used and depths exploited in any simplified fishing authorisation regime. However, this would leave fleet segments out of the scope of the DSAR (footprint, observer coverage, control provisions) and reduce the overview over the EU fleet exploiting deep-sea species. The by-catch fishing authorisation regime

There are few specific measures imposed by the DSAR on fishing vessels, which have been issued a by-catch fishing authorisation. DSAR main rules Targeting fishing authorisation (art. 5.2) By-catch fishing authorisation (art. 5.3) Capacity ceiling (Art. 6) Included Not included Existing fishing areas (Art. 7) Included Not included 800m depth bottom trawl prohibition (Art. 8.4) Included Included VME encounter protocol (Art. 9.2) Irrespective Irrespective VMEs closure to bottom gears (Art. 9.6) Irrespective Irrespective Control provisions (Art. 10-13) Irrespective Irrespective Data collection and reporting (Art. 15) Irrespective Irrespective Observer coverage (Art. 16) 20% bottom trawl and gillnet 10% other gear 10% any gear Source: own analysis of the DSAR / Note: “irrespective” means that DSAR do not refer to the types of fishing authorisations issued for the scope of application of the measure. As detailed in the table above, the two main DSAR measures applying to fishing vessels issued with a by-catch fishing authorisation is the 10% observer coverage, with no further specifications on the reference for calculation of this percentage and the operational conditions to which it applies (i.e. any time or only when the vessel catches deep-sea species), and the 800 meters bottom trawl prohibition. Other DSAR measures apply only to vessels issued with a targeting fishing authorisation (existing fishing areas, capacity ceiling), or apply to any vessel either targeting or catching deep-sea species as by-catches (800m bottom trawl prohibition, VMEs area closure, VME encounter protocol, more stringent control rules, data collection and reporting). The by-catch fishing authorisation also results in the official identification of the fleet authorised to catch deep-sea species in small quantities outside the limits of the footprint. According to many fishermen associations consulted (Spain, Portugal, Netherlands, Germany), the by-catch fishing authorisation could be removed. However, some fishermen associations (France) reported that the issuance of by-catch fishing authorisations provides a vehicle to inform relevant fishermen of the DSAR rules. For Member States, the by-catch fishing authorisation contributes to narrowing down the number of vessels that should be subject to closer monitoring in view of the potential involvement in deep-water fisheries. Concentration of DSAR measures on EU waters The DSAR introduces references to the NEAFC Regulatory Area through Article 16.5 applying mutatis mutandis the observer coverage defined for EU waters to NEAFC waters for EU vessels. According to Member States concerned, Article 16.5 led to the perception of a need to issue the two types of fishing authorisations to their fishing vessels exploiting NEAFC international waters, namely those foreseen under Article 5 of the DSAR to manage deep-sea fishing activities in EU waters, in addition to the NEAFC deep-sea fishing authorisation foreseen by Article 20.3 of the DSAR. Issuance of DSAR fishing authorisations foreseen under Article 5 further creates uncertainty on the extent to which other DSAR provisions apply to their vessels while fishing in the NEAFC Regulatory Area (e.g. capacity management, rules for data collection and reporting, and 800m bottom trawl ban). Member State authorities and fishermen associations suggested that any such references to fishing activities in the NEAFC Regulatory Area should be clarified to streamline and simplify the scope of the DSAR application. The inclusion of international waters of CECAF areas 34.1.1, 34.1.2 and 34.2 in the scope of application might not be necessary as a dedicated EU instrument designed for protection of VMEs, i.e. Regulation (EC) 734/2008 on the protection of vulnerable marine ecosystems in the high seas, already applies in these international waters. Member States annual reports to the Commission One Member State (Netherlands) pointed out that some of the information required by the Commission is already made available by Member States, as a result of the Control Regulation. This includes, in particular, data on deep-sea species quota uptake already submitted to the Commission on a regular basis through the Aggregated Catch Data Reporting (ACDR) database. However, information required from Member States by the Commission in the annual reports corresponds to the information requirements decided by the co-legislators through Article 15.6 of the DSAR.

Conclusion on the efficiency of the DSAR Considering the balance between the resources used for the DSAR and the results generated, the DSAR and its fishing authorisation regime appear to be efficient. The implementation and management of the fishing authorisation regime are the main cost drivers for some Member States (notably for Portugal, Spain and France issuing most fishing authorisations). Other DSAR-related administrative costs are borne within Member States’ programmes for monitoring, control and surveillance of fishing vessels, as well as in the collection of scientific data under the EU Data Collection Framework. Given the relatively small share of deep-sea species in the total national landings, these costs represent small amounts in relative terms and there is no reliable method for their identification and analysis. Based on the contributions from the targeted and public consultations, the DSAR fishing authorisation regime could be simplified by concentrating on fishing vessels likely to generate significant adverse impacts on VMEs below 400m depth (i.e. vessels using bottom gears). However, this would leave certain fishing fleet segments out of the scope of the DSAR and, thus, reduce the overview and control over the EU fleet catching deep-sea species. The rules applicable to deep-sea fishing operations in the NEAFC Regulatory Area could also be made clearer for Member States, and avoid duplicating with Regulation (EC) 734/2008 the rules applying in the international waters of CECAF areas 34.1.1, 34.1.2 and 34.2. Some Member States’ authorities also suggested the simplification of information to be reported to the Commission, noting however that the information requested is in line with the legal reporting obligations of the Regulation. D.Coherence The United Nations General Assembly (UNGA) has adopted three resolutions since 2004 in which the management of bottom deep-sea fisheries and impacts on VMEs are addressed. The three resolutions are Resolution 59/25 (17 November 2004), Resolution 61/105 (8 December 2006) and Resolution 64/72 (4 December 2009). UNGA Resolutions set out principles and standards that apply primarily in areas beyond national jurisdictions, covered (or not) by relevant multilateral arrangements, such as Regional Fisheries Management Organisations (RFMOs). UNGA Resolutions are operationalised by the “FAO International Guidelines for the Management of Deep-Sea Fisheries in the High Seas” adopted in 2008. One of the main objectives of the DSAR is to ensure that EU measures for the management of deep-sea fish stocks are consistent with UNGA Resolutions, in particular Resolutions 61/105 and 64/72. The next paragraphs discuss the coherence between the main relevant UNGA Resolutions and DSAR measures. UNGA 61/105 § 86 (management of high seas areas where there is no RFMO with competence to manage deep-sea fisheries) The DSAR includes international waters of CECAF 34.1.1, 34.1.2 and 34.2 in its scope. This inclusion is consistent with UNGA Resolution 61/105 § 86, which calls upon states to implement measures in areas beyond national jurisdiction to manage deep-sea bottom fisheries where there is no RFMO with competence to regulate such fisheries, which is the case for the CECAF areas covered by the DSAR. Regulation (EC) 734/2008, which also includes CECAF 34.1.1, 34.1.2 and 34.2 in its scope, is also consistent with the UNGA resolution. UNGA 64/72 § 119.a (assess whether bottom fishing activities should have significant adverse impacts, and ensure that vessels do not engage in bottom fishing until such assessment have been carried out) Article 7 of the DSAR sets the legal basis for the determination of existing deep-sea fishing areas exploited in 2009-2011. Article 8.2 of the DSAR prescribes that targeting fishing authorisations shall be issued only for fishing activities within existing deep-sea fishing areas. Modification of existing deep-sea fishing areas can be considered by the Commission, on the basis of the results of a science-based impact assessment conducted in accordance with FAO Guidelines (Article 8.8), with specific provisions for authorising and conducting exploratory fishing outside existing fishing areas (Articles 8.5 to 8.7).

The limitation to the footprint areas applies only to vessels with a targeting fishing authorisation. The limitation to the footprint for all fishing vessels with a targeting fishing authorisation (i.e. midwater trawling that do not interact with the seabed) goes beyond UNGA resolutions which consider only bottom fishing activities. Fishing vessels with a by-catch fishing authorisation are however not bound by the footprint. These fishing vessels may exploit new deep-sea fishing areas with bottom gears, without prior impact assessment, but for catches of less than 10 tonnes per year. The limitation of activities within the footprint for all fishing vessels, not only bottom gears, broadens the DSAR’s ambition and reach by comparison with the UNGA Resolution. However, the DSAR exempts fishing vessels with by-catch authorisation of the obligation to carry out an impact assessment before exploiting new fishing areas but those vessels remain limited to a maximum of 10t of annual catches. UNGA 64/72 § 119.b (identify where VMEs are known or likely to occur and adopt conservation and management measures to prevent significant adverse impacts on such ecosystems, or close such areas until conservation and management measures have been established) In the DSAR, EU Member States and the Commission are prompted to use the best scientific and technical information to identify where VMEs are known, or likely, to occur below a depth of 400m. In addition, a competent advisory body shall be asked by the Commission to carry out an annual assessment of VMEs areas. The Commission shall then adopt an implementing act for the purpose of establishing a list of areas where VMEs are known, or likely, to occur (Article 9.6) which will lead to fishing with bottom gears being prohibited in all those areas below a depth of 400m. The list of VME areas may be amended, if impact assessments suggest that there is sufficient evidence to indicate that VMEs are not present, or that appropriate conservation and management measures have been adopted which ensure that significant adverse impacts on VMEs in the area are prevented. The DSAR is fully consistent with this UNGA resolution for waters below 400m depth in its objective. Full consistency will depend, however, on the extent to which areas where VMEs are “likely to occur” will be included in the forthcoming implementing act. Also, it may be noted that UNGA does not define a depth range in which VME protection measures should be implemented. The 400m depth limit is the reference unilaterally adopted by the DSAR. UNGA 64/72 § 119.c (establish and implement appropriate protocols to cease bottom fishing activities in case VMEs are encountered and to report the encounter, including what constitutes an evidence of an encounter with a VME, in particular threshold levels and indicator species) The DSAR defines what constitutes the evidence of an encounter by providing a list of indicator species (Annex III) and setting thresholds levels (Annex IV) applicable to bottom trawlers and longliners. If the encounter is considered to have taken place, the vessel shall cease fishing operations and resume operations only when reaching an alternative area at least five nautical miles from the encounter. The fishing vessel shall immediately report each VME encounter to the national competent authority which shall notify the Commission without delay. The DSAR is fully consistent with this UNGA resolution. UNGA 64/72 § 119.d (adopt conservation and management measures on the basis of stock assessment, including monitoring, control and surveillance measures, to ensure long-term sustainability of deep-sea fish stocks)

The DSAR supports stock assessments of deep-sea species through specific rules on data collection and reporting and through a mandated scientific observer coverage of 20% (bottom trawls and bottom set gillnets with a targeting fishing authorisation) or 10% (all other vessels authorised to catch deep-sea species) that applies also in the NEAFC Regulatory area. Measures for the conservation and the management of deep-sea stocks fall under the scope of the EU Common Fisheries Policy Regulation and other specific Regulations, namely the TAC and quota Regulations, the Technical Measures Regulation and the Western Waters Multiannual Plan Regulation. The DSAR foresees monitoring and control measures that are more stringent than those applying in the general case (Articles 10, 11, 12 and 13), with provisions for administrative sanctions in case of non-compliance with DSAR rules (Article 14). The DSAR is fully consistent with this UNGA resolution. The DSAR ensures the application into EU law of measures to protect deep-sea ecosystems aligned on initiatives recommended by the United Nations General Assembly, in particular through Resolutions 61/105 and 64/72. The exemption for by-catch vessels to carry out an impact assessment for fishing in new areas could be of concern but the limitation of by-catches allowed and the compulsory 10% observer coverage those vessels constitute a safety net, which is supported by the contributors to the public consultation at 74%. Some contributors to the public consultation also underlined that the extent to which UN resolutions are taken on-board will also depend on relevant consideration of areas where VMEs are likely to occur in the forthcoming implementing acts. To what extent is the DSAR coherent with NEAFC Recommendation 19.2014? NEAFC recommendation 19.2014 on the protection of vulnerable marine ecosystems in the NEAFC Regulatory Area is a binding instrument adopted by all NEAFC contracting parties, including the EU, to implement measures ensuring prevention of significant adverse impacts of bottom fishing activities in areas where VMEs are known or likely to occur. The NEAFC recommendation applies in the NEAFC Regulatory Area (i.e. the high sea areas of the North-East Atlantic), while the DSAR applies in EU waters and some CECAF international waters. In addition, the DSAR foresees that its observer coverage (article 16.5) and provisions on fishing permits, designated ports and reporting (article 20.3) apply to EU vessels operating in NEAFC waters. Importantly, the ban on bottom trawling below 800 meters, established by the DSAR, is the only measure of this type in the Atlantic Ocean: neither NEAFC, nor NAFO have established such restrictions on bottom trawling. The next table compares the main provisions of NEAFC Recommendation 19.2014 and of the DSAR. NEAFC Rec. 19.2014 DSAR Existing bottom fishing areas Existing bottom fishing areas are defined (reference period 1987-2007). Existing deep-sea fishing areas still to be defined (reference period 2009-2011) but no specification on types of vessels concerned for definition (any gear). Depth limit for bottom trawling No limit Bottom trawling banned below 800m Areas closures for protection of VMEs 13 VME areas closed to bottom gear so far. No specification of depth. Ongoing for depth below 400m with closures targeting bottom gears. Impact assessment Deep-sea fishing with bottom gears outside existing areas may be permitted only on the basis of the result of an impact assessment Impact assessment promoted by NEAFC (Annex 4) largely consistent with FAO Guidelines. Deep-sea fishing with bottom gears outside existing areas may be permitted only on basis of the result of an impact assessment in accordance with FAO Guidelines. VME encounter Define evidence of a VME encounter incl. VME indicator species (both similar to DSAR) Move-on rule 2 nm Mandatory reporting of encounter Define evidence of a VME encounter incl. VME indicator species (both similar to NEAFC) Move-on rule 5 nm Mandatory reporting of encounter Observer No observer requirement for bottom fishing within existing fishing areas. 100% coverage for exploratory fishing outside existing bottom fishing areas. Observer coverage 20% for targeting fishing authorisations, 10% for by-catches fishing authorisations 100% coverage for exploratory fishing outside existing bottom fishing areas during first 12 months Source: own analysis of the DSAR To what extent is the DSAR coherent with other non-CFP EU instruments on protection of the marine environment (MSFD, Habitats Directive)? The DSAR is consistent with NEAFC recommendation 19.2014 and the DSAR even goes beyond NEAFC minimal requirements. The DSAR sets a ban on bottom trawling below 800 meters while NEAFC does not, the DSAR defines existing fishing areas based on historical records of all vessels having caught deep-sea species (irrespective of gear) whereas NEAFC existing fishing areas are defined on the basis of historical records of vessels using bottom gear and the DSAR provides a move-on rule of five nautical miles as opposed to two nautical miles for NEAFC. The implementation of NEAFC Recommendation 19.2014 into EU law is considered partial at this stage. Annex XII of the Technical Measures Regulation (EU) 2019/1241 implements some measures of NEAFC Recommendation (such as VME areas closed to bottom fishing and the VME encounter protocol, although in an outdated version for the latter and without specification of what defines a VME encounter). The DSAR focusses on sustainable management of deep-sea resources and it foresees measures to protect related marine environments. It allows targeted fishing activities in areas where deep-sea fishing activity occurred during the reference period 2009-2011 and pledges to avoid negative impact on vulnerable marine ecosystems (VMEs). The environmental component of the DSAR is related to broader EU environmental legislation, in particular the Marine Strategy Framework Directive and the Habitats Directive. Below the main purpose of these two directives and their relation to the DSAR are summarised.

The Marine Strategy Framework Directive (MSFD) The Marine Strategy Framework Directive (MSFD) is a ‘horizontal’ directive, which: “shall contribute to coherence between, and aim to ensure the integration of environmental concerns into, the different policies, agreements and legislative measures which have an impact on the marine environment”. The main aim is to “achieve or maintain good environmental status in the marine environment by the year 2020 at the latest”. The MSFD obliges Member States to formulate marine strategies and action plans, following an ecosystem-based approach, which allow sustainable use of marine resources and ensures achievement of good environmental status (GES). GES is assessed on the basis of 11 qualitative descriptors (Annex I of the MSFD Directive) of which three are relevant for fisheries: ·GES descriptor 1: Biological diversity; ·GES descriptor 3: Status of populations of commercially exploited species; ·GES descriptor 6: Sea-floor integrity. The DSAR is coherent with the EU objective of achieving good environmental status in European seas by 2020 and of minimising the negative impact of fishing activities on marine ecosystems. The DSAR implements capacity management measures and spatial measures (the 800m bottom trawl ban) that contributes with other CFP management measures (e.g. TAC and quota Regulations, Technical Measures Regulation) to the conservation of deep-sea stocks with contribution to GES descriptors 1 and 3. The DSAR also implements a set of spatial measures aiming at ensuring protection of deep-sea habitats (e.g. limitation of exploitation to existing fishing areas, closures of areas below 400m where VMEs are known or likely to occur to bottom gears, 800m bottom trawl ban) that contribute to the achievements of MSFD GES descriptors 1 and 6. The Habitats Directive The aim of the Habitats Directive is “to contribute towards ensuring biodiversity through the conservation of natural habitats and of wild fauna and flora in the European territory of the Member States to which the Treaty applies” (Article 2.1), taking into account “economic, social and cultural requirements and regional and local characteristics” (Article 2.3). The Habitats Directive pursues the establishment of a network of special areas of conservation (Natura 2000) to protect certain habitat types (listed in Annex I) and species (listed in Annex II and Annex IV). The selection of the Natura 2000 areas is the responsibility of the Member States. The criteria to be used for this selection are listed in Annex III of Directive. Annex I of the Habitats Directive considers reefs in the open sea and tidal areas (code 1170) as natural habitat types of EU interest whose conservation requires the designation of special areas of conservation. The opportunities provided by the Habitats Directive have been taken up by some countries (Ireland, Spain and United Kingdom) to define Special Areas for Conservation based on the presence of deep-water coral reefs outside their territorial waters with some of the areas designated subsequently closed to fishing with bottom gears through the Technical Measures Regulation to ensure uniform application to all Member States’ fishing fleets. Since deep-water coral reefs areas closed to bottom fishing under the Habitats Directive are likely