[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 14.7.2006

COM(2006) 387 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2004

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2004

1. INTRODUCTION

WITH A VIEW TO INCREASING THE LEVEL OF TRANSPARENCY ON HOW MEMBER STATES ACCOMPLISH THEIR OBLIGATIONS TO ENFORCE COMMUNITY RULES, COUNCIL REGULATION (EC) N° 1447/1999 [1] introduced the obligation for the Member States to report yearly to the Commission on how many “serious” infringements have been detected and on the sanctions imposed. For this purpose the said Regulation established a list of 19 types of breaches of the Community rules deemed to be particularly serious. Member States are obliged to ensure that the appropriate measures are taken against the natural or legal person who infringes the rules of the Common Fisheries Policy[2].The behaviours listed are linked to the most important obligations imposed by Community rules on stock conservation, monitoring and the marketing of fisheries products.

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

The present Communication refers to the cases of behaviours which seriously infringed the rules of the CFP and for which a file has been opened in 2004. This is the fifth Communication on this matter. The Commission presented the most relevant data for 2000 in its Communication of 12 November 2001[4], for 2001 in its Communication of 5 December 2002[5], for 2002 in its Communication of 15 December 2003[6], and for 2003 in its Communication of 20 May 2005[7].

2. REPORTS FROM MEMBER STATES FOR 2004

COUNCIL REGULATION N° 2740/1999 LAYS DOWN DETAILED RULES FOR THE TRANSMISSION OF DATA CONCERNING BEHAVIOURS WHICH SERIOUSLY INFRINGED THE RULES OF THE COMMON FISHERIES POLICY. DATA SHALL BE TRANSMITTED BY ELECTRONIC MEANS SO THAT THE COMMISSION’ SERVICES ARE IN A POSITION TO PRODUCE TABLES, WHICH ARE ANNEXED TO THE COMMUNICATION. THESE TABLES ARE DESIGNED TO SHOW THE MOST INTERESTING FEATURES STEMMING FROM THE MEMBER STATES’ REPORTS.

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

As the interpretation of information gathered is not easy since it exclusively consists of sets of figures, and some data could be misleading to some extent, the Commission invited Member States to provide supplementary information that they deemed useful to clarify the analysis of the figures.Comments sent by Member States have been taken into consideration and there is an explicit reference whenever it appears to be appropriate.

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

With a view to presenting some quantitative parameters, the following table indicates the number of vessels listed in the Fishing Vessel Register for each Member State on 1st January 2005, together with the total number of serious infringements discovered and reported by Member States for (exclusively) those vessels flying their flag. The data received do not allow a distinction between breaches committed by fishermen or by operators in the fishing sector other than fishermen. The number of serious infringements shown below does not therefore exclusively concern fishermen.

Member State | Number of vessels | Serious infringements |

Belgium | 123 | 32 |

Denmark | 3416 | 258 |

Germany | 2163 | 87 |

Greece | 18723 | 1487 |

Estonia | 1050 | Na |

Spain | 14053 | 3813 |

France | 7884 | 492 |

Ireland | 1431 | 50 |

Italy | 14923 | 3398 |

Cyprus | 897 | 5 |

Latvia | 942 | 175 |

Lithuania | 303 | Na |

Malta | 2133 | Na |

Netherlands | 862 | 141 |

Poland | 1248 | 73 |

Portugal | 10082 | 1729 |

Slovenia | 148 | Na |

Finland | 3394 | 5 |

Sweden | 1598 | 94 |

United Kingdom | 7034 | 76 |

4. NUMBER OF INFRINGEMENTS DETECTED COMPARED TO THE NUMBER OF INSPECTIONS CARRIED OUT BY MEMBER STATES

In order to compare data provided by Member States, it would be appropriate to assess the number of infringements detected over a period against the number of inspections carried out by the control authorities during the same period of time. Unfortunately, Member States have not provided the Commission with enough data which would have allowed the Commission services to prepare a specific table. Furthermore, the definition of “inspection” may vary amongst Member States, so that homogeneity of data cannot be ensured.

Some Member States have provided the Commission with the number of inspections carried out during 2004. Significant differences between Member States data raise doubts about the correctness of some figures: for instance the ratio of infringements detected compared to the number of inspections recorded for Poland is 2%, while for Spain it is 6%, Cyprus 12% and Greece 65%.

5. INFRINGEMENTS DETECTED IN THE FRAMEWORK OF REGIONAL FISHERIES ORGANISATIONS (RFOS)

Several RFOs have put in place or are about to adopt control schemes which foresee the recording of infringements. Such schemes exist within the Northwest Atlantic Fisheries Organisation (NAFO), the North East Atlantic Fisheries Organisation (NEAFC) and the International Commission for the Conservation of Atlantic Tunas (ICCAT).

It is assumed that any “serious” infringements of the CFP rules committed by vessels operating within the framework of the above mentioned RFOs, are recorded amongst the cases notified to the Commission for the purposes of the present Communication.

It is worth remembering at this point that the European Community submits a yearly report to the said Organisations on the infringements detected and notified to the Commission services by the national control authorities. It is not possible however to compare data transmitted to RFOs and those shown in the annexes to the present Communication since types of infringements are not identical.

In the context of RFOs, it appears that no apparent infringements, (i.e. alleged) as regards Community vessels were detected in the NEAFC area in 2004. Concerning NAFO, 18 apparent infringements by Community vessels were notified by other contracting parties, though this figure is still subject to validation by NAFO.

6. OBSERVATIONS ON THE REPORTS SUBMITTED BY THE MEMBER STATES

THE TOTAL NUMBER OF CASES REPORTED BY MEMBER STATES IS 9 660. For each type of breach included in the list of Council Regulation (EC) N° 1447/1999, infringements have been detected. The number is thus slightly higher than in 2003(the number of serious infringements detected in previous years was 7 298 in 2000, 8 139 in 2001, 6 756 in 2002 and 9 502 in 2003), but the number of Member States with interests in the sea-fisheries sector has meanwhile increased by seven. In fact, the number of serious infringements detected by Member States which adhered during 2004 represents only 2,7% of the total (258 cases were reported by Cyprus, Estonia, Latvia and Poland).

As already underlined in the previous Communications, the number of infringements detected may include breaches related to activities carried out in internal waters or for recreational purposes. This is the case for the figures transmitted by Spain.

79,6% of the infringements have been detected by Spain, Italy and Portugal. These countries are also those with a larger number of vessels. Unauthorised fishing concerns 22% of cases, while storing, processing, placing for sale and transporting fishery products not meeting the marketing standards in force comes second (19%). Fishing without holding a licence rises to third position (14%). These percentages are similar to those for 2003 and in fact most infringements detected since 2000 relate to these three types of behaviour, while very few cases (less than 10%) concern other types of serious breaches to the rules of the CFP. For instance, it is surprising that tampering with the Vessel Monitoring System accounted for only 60 cases in 2004, throughout the European Community.

82% of infringement procedures were concluded with the application of a penalty. In Germany, Estonia, United Kingdom, Spain, Cyprus, Latvia and Poland, 100% of infringements were sanctioned. In Italy more than 90% were also sanctioned. However, only 17% of infringements were sanctioned in Sweden. No sanctions were declared by Finland. These data also should be subject to caution since it is not excluded that Member States included cases which were opened during previous years, but not finalised until 2004. They may also have recorded only cases opened and finalized in 2004.

When comparing fines imposed on offenders, there are striking differences between Member States for the same type of infringement. For example:

- for using or keeping on board prohibited fishing gear, the average fine was EUR 108 in one Member State and EUR 15 000 in another, although only one case was reported;

- for unauthorised fishing, the average fine was EUR 58 in one Member State but raised to EUR 13 788 in another;

- for directed fishing of species subject to a prohibition, the average fine was EUR 10 only in one Member State and EUR 3 334 in another;

- for falsifying data required in the control documents, the average fine was EUR 48 in one Member State and EUR 18 900 in another.

Obviously, the average should also be compared with the occurrence of a specific type of infringement and with the gravity of the individual case. Moreover, some of the fines reported may include the value of the seizures while others do not, meaning that comparisons between fines in different Member States can be biased. Regulation (EC) N°1447/1999 does not indicate any ranking between the 19 types of breaches as regards their gravity.

In general, the average fine applied by each Member State ranges from EUR 48 to EUR 13 099 and the average fine imposed across EU in the proceedings that ended with a penalty in 2004 amounts to EUR 2 272. This figure is less than half the average fine imposed in 2003 (EUR 4 664). This down-trend is not a positive signal. The figures relating to the amount of the fines imposed to the EU fishing industries compared with the value of the fish products landed (see Annex VIII) support the conclusion that the amounts of the fines imposed have been decreased since 2003. The significant fines imposed on a limited number of cases (up to EUR 120.000) only prove that Member States are too lenient in most cases.

When assessing the amount of the sanctions imposed, two main aspects shall be taken into consideration: firstly, the sum recorded may or may not include the value of the catches and/or the gear confiscated as an ancillary penalty. Since the value of catches can easily exceed the fine, the average could be affected significantly. Commission’ services are not in a position to ascertain whether the value of the catches and gear has been taken into consideration, unless Member States provide details.

Furthermore, in case of a breach punished through a suspension of the entitlement to fish or to carry out a professional activity, there is no possibility to evaluate, and thus record, the loss of profit for the operator who has been compelled to stop his professional activity. Losses could be significant, but they can not be taken into account.

Tables also show that in 3 203 cases the seizure of catches or gear was ordered. Significant increases were reported from the 444 seizures in 2000 to the 4 720 seizures in 2003. In 2004, the number of seizures has decreased. Greece, Italy, Portugal and the United Kingdom are the Member States which reported the application of this measure in a significant number of cases. On the other hand, Germany, Estonia, Spain, Finland, Cyprus, Latvia and Poland reported no seizures of catches and gears.

Finally, using the supplementary information provided by some Member States, the following remarks can be made: the procedures (both administrative and criminal) followed for sanctioning infringements of the CFP rules are generally lengthy. 8 to 12 months seems to be the time required on average until termination of the whole procedure. Criminal procedures are in general the longest ones (only criminal procedures are applied by Belgium, Ireland, the Netherlands, Sweden, the United Kingdom and Finland).

Although the Commission services have repeatedly asked for details, little information has been gathered on the species most concerned by serious infringements (in general those for which recovery plans or restrictive national measures are in place and those with high commercial value and on the areas where serious infringements have been committed). Obviously it appears that most infringements are detected by Member States within their EEZ, but at present it is not possible to identify precisely the ICES zones.

7. FUTURE DEVELOPMENTS AND FINAL REMARKS

Following its commitment as recorded in the previous Communication, the Commission held a series of consultations with Member States in order to collect opinions on how the content of the Communication could be improved. The Commission firstly organised a meeting of the Directors General for Fisheries on 30 September 2005. This meeting allowed participants to have an open debate on the goals of the Communication on serious infringements and on the results obtained so far. The general feeling was that the Communication is a useful tool to assess the enforcement of the Community rules. However it has been found that there is a need to improve its content, namely with a view to avoiding incorrect interpretation of figures shown in the tables. It has in particular stressed the importance of giving some reference to the context in which the breach has been committed such as the size of the vessel, the type of fisheries and, in general terms, on the economic aspects.

It was however agreed that the format of the 2004 Communication will not be changed.

Other fundamental issue concern the list of the behaviours: it is generally felt that the types are not sufficiently specific, a situation which leads to different interpretations amongst Member States.

The possibility of simplifying the reporting obligations was also examined.

The issues discussed with the Directors General were examined subsequently within a control experts group convened by the Commission on 8 November 2005. On this occasion, Member States had the opportunity to comment on the tables prepared by the Commission services.

Taking duly into account the Member States’ comments, the Commission is committed to improve the text of the Communication which it considers to be a useful tool for increasing transparency and effective enforcement. It shares with the Member States the view that the list of “serious infringements” shall be revised, in particular in relation to the setting up of the “catalogue of sanctions” foreseen in Article 25.4 of Council Regulation No 2371/2002. The Commission will also endeavour to reduce to the greatest possible extent, Member States’ obligations on reporting.

However, with a view to improving the content of the next Communications on serious infringements, Member States will be asked to provide the Commission with a set of information, namely on the economic impact on each wrongdoer of the sanctions imposed, including the suspension to carry out a professional activity, compared to his turnover. Indeed, only an analysis of these elements may allow an assessment of the deterrent effect of a sanction.

Member States will also be asked to specify which cases refer to breaches to CFP rules or to national rules committed by professional or not professional fishermen.

As regards the present Communication, having underlined once again that is rather difficult to interpret the set of figures shown in the tables without comments from the Member States, the Commission shall conclude by saying that the situation has not really improved compared with the previous year.Although statistics show that more than 10% of the vessels has been sanctioned, the amount paid by the fisheries industry as a consequence of sanctions imposed in 2004 (€ 13,8 millions[8]) is roughly equal to 2 thousandths of the 2003 landing value[9]. Such an amount entails the risk that fishing industry may consider penalties imposed for infringements to the CFP rules just as an ordinary running cost of the enterprise and see no real incentive to be compliant.Furthermore, analysis of figures in Annex IV shows that most of the penalties imposed on offenders are clearly insufficient to have a real deterrent effect.

The Commission therefore calls on Member States to amend their legislation in an appropriate manner. In this context, the Commission suggests that, as a general rule, the value of the catches on board should be taken into consideration by the authority when imposing a penalty.Furthermore, although Member States are free to adopt procedures they deem to be the most appropriate, the Commission wishes to restate its opinion that an administrative sanction like the suspension of an entitlement to fish or to carry out a professional activity is a very effective tool in increasing compliance with CFP rules due to the fact that it can be quickly applied. Some Member States are now using the possibility which was previously unknown in their legal systems, but it is regrettable that the majority of Member States do not use this tool yet, at least when breach of the rules is not so serious to justify a criminal sanction.

List of tables in annex

I number of cases discovered by type of infringement and by Member State;

II number of cases discovered by nationality of the party which committed the infringement and by Member State;

III number of cases where penalties were imposed by type of infringement and by Member State;

IV average fine by type or infringement and by Member State;

V number of seizures by type of infringement and by Member State;

VI number of suspensions by type of infringement and by Member State;

VII amount paid by the fishing industry in each Member State as a consequence of serious infringements.

VIII amount paid by the fishing industry in each Member States as a consequence of serious infringements and value of landings in 2003 in each Member State

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VIII AMOUNT PAID BY THE FISHING INDUSTRY IN 2004 IN EACH MEMBER STATE AS A CONSEQUENCE OF SERIOUS INFRINGEMENTS AND VALUE OF LANDINGS IN 2003 IN EACH MEMBER STATE

MEMBER STATE | AMOUNT PAID BY THE FISHING INDUSTRY IN 2004 | VALUE OF LANDINGS IN 2003[10] | % |

BEL | 2.050 | 78.000.000 | 0,0026 |

CZE | N.A. | N.A. | N.A. |

DNK | 42.910 | 390.000.000 | 0,011 |

DEU | 29.603 | 81.000.000 | 0,036 |

EST | 238 | N.A. | N.A. |

GRC | 284.850 | 267.000.000 | 0,10 |

ESP | 5.084.061 | 1.873.000.000 | 0,27 |

FRA | 116.825 | 823.000.000 | 0,014 |

IRL | 44.451 | 253.000.000 | 0,017 |

ITA | 6.456.507 | 1.012.000.000 | 0,64 |

CYP | 5.820 | N.A. | N.A. |

LTU | N.A. | N.A. | N.A. |

LVA | 28.118 | N.A. | N.A. |

LUX | N.A. | N.A. | N.A. |

HUN | N.A. | N.A. | N.A. |

MLT | N.A. | N.A. | N.A. |

NLD | 16.410 | 313.000.000 | 0,005 |

AUT | N.A. | N.A. | N.A. |

POL | 39.269 | N.A. | N.A. |

PRT | 269.176 | 205.000.000 | 0,13 |

SVN | N.A. | N.A. | N.A. |

SVK | N.A. | N.A. | N.A. |

FIN | N.A. | 19.000.000 | N.A. |

SWE | 9.652 | 95.000.000 | 0,01 |

GBR | 1.349.236 | 666.000.000 | 0,20 |

Total EM | 13.779.175 | 6.075.000.000 | 0,22 |

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

[2] Art. 25 R. 2371/2002

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

[4] COM (2001) 650, 12.11.2001

[5] COM (2002) 687, 05.12.2002

[6] COM (2003) 782, 15.12.2003

[7] COM (2005) 207, 30.05.2005

[8] Details can be found in Annex VII.

[9] The global landing value in the European Union in 2003 amounts to ¬ 6 075 millions (Eurostat, Fishery Statistics D30.05.2005

[10] Details can be found in Annex VII.

[11] The global landing value in the European Union in 2003 amounts to € 6 075 millions (Eurostat, Fishery Statistics Data 1990-2004, 2005 Edition)

[12] Eurostat, Fishery Statistics Data 1990-2004, 2005 Edition