EUROPEAN COMMISSION 
Brussels, 14.12.2011 
SEC(2011) 1576 final 
  
COMMISSION STAFF WORKING PAPER 
Impact Assessment 
Accompanying the document 
 
Commission proposal for a Re gulation of the European parliament and of the Council 
on certain measures directed to non-collaborating countries for the purpose of the 
conservation of fish stocks. 
{COM(2011) 888 final} 
{SEC(2011) 1575 final}  
 
 Table of Contents 
1. SECTION 1: PROCEDURAL I SSUES AND CONSULTATION OF 
INTERESTED PARTIES............................................................................................3 
1.1. Identification: ....................................................................................................3 
1.2. Organisation and timing: ...................................................................................3 1.3. Consultation of the IAB.....................................................................................4 1.4. Consultation and expertise: ...............................................................................4 1.5. Consultation of the Legal Service .....................................................................6 
2. SECTION 2: PROBLEM DEFINITION ....................................................................7 
2.1. What is the issue or proble m that may require action? .....................................7 
2.2. What are the underlying drivers of the problem?..............................................9 2.3. What are the main problems whic h this initiative will address?.....................10 
2.4. Who is affected, in what ways, and to what extent? .......................................10 2.5. How would the problem evolve, all things being equal? N.B. 
Scenario(s) should take into account actions already taken or planned 
by the EU, Member States and other actors. ...................................................11 
2.6. Does the EU have the right to ac t and is EU added-value evident? ................12 
2.6.1. Legal basis and subsidiarity...............................................................12 2.6.2. Fundamental rights limits..................................................................12 
3. SECTION 3: OBJECTIVES .....................................................................................13 
3.1. What are the general policy objectives?..........................................................13 
3.2. What are the more specifi c/operational objectives?........................................13 
3.3. Consistency of these objectives  with other EU policies..................................14 
4. SECTION 4: POLICY OPTIONS.............................................................................16 
5. SECTION 5: ANALYSIS OF IMPACTS.................................................................16 6. SECTION 6: COMPARING THE OPTIONS ..........................................................34 7. SECTION 7: MONITORI NG AND EVALUATION...............................................37 
8. ANNEXES ................................................................................................................38 ANNEX I ANALYSIS OF REPLIES TO THE CONSULTATION ................................39 1. TECHNICAL DETAILS...........................................................................................39 2. REPLIES RECEIVED ..............................................................................................40 3. MAIN RESULTS OF THE CONSULTATION: ......................................................42 4. DESCRIPTION OF THE PROBLEM ........................................................................45 
 
3 5. POSSIBLE APPROACHES .......................................................................................50 
6. POSSIBLE OPTIONS TO ADDRES S THE IDENTIFIED PROBLEM .....................53 
7. POSSIBLE EFFECTS OF IMPORT L IMITATIONS OR RESTRICTIONS ...............56 
ANNEX II  THE PROBLEMS ASSOCIATED WITH THE MANAGEMENT 
OF BLUE WHITING AND MACK EREL IN THE NORTH-EAST 
ATLANTIC ...............................................................................................................61 
1. BLUE WHITING ......................................................................................................61 
1.1. Biology 61 
1.2. Fisheries...........................................................................................................61 
2. MACKEREL.............................................................................................................65 
3. OTHER POTENTIAL CASES .................................................................................69 ANNEX III.  CALCULATION OF ADMINISTRATIVE BURDEN..............................71 
ANNEX IV....................................................................................................................... .74 
LIST OF ACRONYMS.....................................................................................................74 
 
Impact Assessment on EU trade-related measures 
 for the conservation of fish resources 
1. S
ECTION 1: PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES  
1.1. Identification:  
This Impact Assessment results from the need to respond, by using trade-related 
measures, to situations where third countries  fail to cooperate in the management of 
stocks of common interest and put in jeopardy their sustainability. This need has become 
particularly evident following the request s made by the EU Institutions and by all 
stakeholders to use all possible means, w ithout excluding trade sanctions, to solve the 
ongoing dispute between Iceland and Faroe Islands and the EU on the joint management 
of the stock of North East Atla ntic mackerel. For ac tion on these countries  to be effective 
and timely, it is required an ad hoc  legal instrument, for which an impact assessment is 
required.  
It has been inserted in the Agenda  Planning under the reference 2011/MARE/042   
1.2. Organisation and timing:  
The decision to start this initiative was the re sult of a process that started at the Fisheries 
Council of 25 October 2010, when Member St ates asked the Commission to take 
immediate action and use all possible means to  convince Iceland and the Faroe Islands so 
they should abandon their perceived extreme and unsustainable positions during the consultations on mackerel management. Since then several meetings  among the services 
concerned took place exploring different options  and finally it was ag reed to launch the 
 
4 process to prepare a Commission proposal for a legal instrument allo wing to prohibit, in 
an effective manner, the imports from c ountries whose non-cooperating behaviour (such 
Iceland and the Faroe Islands in the case of mackerel) put the manage ment of stocks of 
common interest in jeopardy. The ban on imports  would cover fish products related to the 
species concerned. This de cision was taken w ithout prejudice to continuing the 
exploration of different avenues. 
The first step taken by DG MARE to honour th is decision was to draft a Roadmap and 
nominate an Impact Assessment Steering Gr oup (IASG). Members of this group were 
nominated by the following DGs: MARE (l ead DG), TRADE, ELARG, ENV, SJ, SG 
and the EEAS. The first meeting of IASG took place 14 March 2011 to present and preliminary discuss the Roadmap and the c onsultation document. Subsequent meetings 
of IASG took place 20 May and 16 June 2011.  
The elaboration of this IA report was done transparently, involving preliminary all the 
pertinent services of DG MARE and main taining afterwards regularly updated the 
Commission services represented in the IASG. 
1.3. Consultation of the IAB 
This report was presented to the Impact Assessment Board (IAB) 21 June 2011. The IAB 
Secretariat issued a detaile d IA Quality CheckList (IAQCL) by 15 July 2011 and the IAB 
delivered its opinion 22 July 2011. In essence,  the IAB opinion contained suggestions to 
improve the report on the following fields: 
– Firstly, it should clarify the scope, content and timing of follow up (implementing) 
measures, and should provide greater clarity on the pract ical application of the 
envisaged trade measures, incl uding details on the decision -making process inside the 
EU. 
– Secondly, the report should strengthen the asse ssment of effectiveness of the analysed 
measures, particularly with respect to the ri sk of countries circumventing the potential 
EU import ban.  
– Finally, the assessment of impacts in the EU such as on the fish-processing industry 
and consumers should be improved. 
The present report addresses the suggestio ns made by the IAB and the technical 
comments made in the IAQCL. 
1.4. Consultation and expertise: 
The dispute about mackerel was discussed with  Member States, the EP and stakeholders 
in several occasions, especially during 2010.  
The Committee on Fisheries of  the European Parliament held on 30 September 2010 an 
exchange of views, with the participation of  the Commission and of stakeholders, on the 
dispute with Iceland over significant increases in their catches of mackerel. During the 
debate the majority of participants expre ssed deep concern by the unilateral decision by 
Iceland to increase its mackerel  catches called for a strong response from the EU and also 
advocated long-term and multilateral solutions.  
 
5 Meetings with stakeholders, in particular ec onomic operators involved  in the fishery of 
the mackerel stock of common interest w ith Iceland, have been  held throughout the 
negotiations with Iceland, Norway and the Faroe Islands on the management of the 
aforementioned mackerel stock. Their general view was that the Commission should take 
action against Iceland and Faroe Islands in  all possible fields, including trade and 
bilateral fishing agreements. 
In the context of this Impact Assessment,  it was decided to la unch a new consultation 
focused on the core problem: how to use trade re strictions to deal w ith situations like the 
one found for mackerel. 
Rather than an open public c onsultation, a targeted one was chosen. This was mainly due 
to the highly specialised fields of work associated to the dossier: management of 
straddling and highly migratory stocks and international trade rules, on which the 
awareness of the wide public is supposed to be very low. The target groups were those represented in the main consultation bodi es for the common fisheries policy: the 
Advisory Committee for Fisheries and A quaculture (ACFA), the seven Regional 
Advisory Councils (RACs), and the authorities of Member States. 
The Advisory Committee on Fisheries and Aq uaculture (ACFA) provides a forum for 
ongoing dialogue with the industry. Its 21 members represent the main branches of the 
industry – production, processing an d trade, in both fisheries and aquaculture as well as 
consumer groups and organisations dea ling with environmental protection and 
development. 
ACFA operates through four wo rking groups, which deal with: 
– fisheries resources and management 
– aquaculture 
– markets and trade policy 
– general questions, including economics and the condition of the sector. 
The Regional Advisory Councils (RACs) were created as part  of the 2002 reform of the 
Common Fisheries Policy. They were establishe d to give stakeholders (fishermen, vessel 
owners, processors, traders, fish farmers,  women’s fisheries groups, environmental and 
consumer organisations and others) a vehi cle through which to feed recommendations 
into CFP policy developments. RACs must include stakeholders from at least two 
Member States. They each have a general assembly and an executive committee. The fisheries sector has two thirds  of the representa tives on each body, and other interests one 
third. In addition to five geogr aphical RACs, two others have been established for pelagic 
stocks and the high seas fleet. 
• Baltic Sea RAC  
• Long Distance RAC  • Mediterranean Sea RAC  • North Sea RAC  • North-western waters RAC  • Pelagic stocks RAC  • South-western waters RAC 
The consultation was opened 22 March 2011 and the last contribution was received and 
accepted on 30 May 2011, which makes the whole c onsultation period close to 10 weeks. 
A consultation document (copied in the appendi x to this annex)) wa s distributed to the 
 
6 target groups. It contained an explanation of  the basic problem, a brief analysis of the 
possible approaches and several closed a nd open questions allowing a complete feed-
back. The Commission's minimum standards for consultation1 have been fully met and 
the Guidelines on organisation of st akeholder consultation in DG MARE2 have been 
followed. The Commission had the opportunity to  present and explain the consultation 
document to the two RACs more directly affected by the problem: the LDRAC and the 
PELRAC during the meetings of the Executive Committees of these RACs. 
Results of the consultation: 
A summary of the replies received and the main conclusions are given in Annex I . It 
could be concluded that, generally speaki ng, there is ample support for the way the 
Commission has initially appr oached the problem and for the use of a regulatory 
instrument banning trade of the fish products  affected by the dispute and even going 
beyond these measures in the framework of "c ountermeasures". Attention should be paid 
to the effects on the processing industry in pa rticular and to the possibility of using a 
combination of actions. 
1.5. Consultation of the Legal Service 
DG MARE requested the advice of the Le gal Service on a number of questions 
pertaining to a possible legal instrument allowing to prohibit imports in an efficient 
manner in cases like the mackerel dispute. The questions covered 1)  structure and legal 
basis for the instrument, 2) compatibily with GATT, 3) compatibility with other 
agreements, 4) counter-measures a nd 5) other possible suggestions.  
The reply from the Legal Service can be summarised as follows: – The legal basis should be article 207  TFEU (common commercial policy) 
– The structure of the proposal should pref erably be a basic act adopted under co-
decision (with criteria and pr ocedures) with the empowerment of the Commission to 
adopt specific trade measures (probably as implementing acts under article 291 TFEU. 
– The best ground to possibly justify trade re strictions for certain fisheries products 
from countries that refuse to cooperate a nd that threaten conservation, would be under 
Article XX(g) GATT, subject to the require ments of the so-called “chapeau” of that 
provision (including a predictabl e process with the right to be heard, balance between 
limitations of trade and those applied to domestic fishermen, comparable treatment for situations being in comparable circumstances ). This does not exclude that also Article 
XX(b) could be invoked to justify th e measure in case of WTO litigation.  
– Compatibility with EEA Agreement can be justif ied on the basis of its Article 13 if the 
principle of proportionality is respected. Similar conditio ns apply to the bilateral 
agreements in the case of Iceland and Faroe Islands. 
                                                
 
1  Towards a reinforced culture of consultation and dialogue – General principles and minimum 
standards for consultation of interested parties by the Commission. 
2  Note to Directors – Adonis No D 00166 of 6.01.2010 
 
7 – The option of "countermeasures" would raise complex issues under international law, 
which still need further scrutiny.  
In sum, the result of the consultation of th e Legal Service did not invalidate any of the 
options contemplated in this IA. More impor tantly, its response provided very detailed 
guidance on what conditions s hould be met for the trade measures to be compatible with 
existing law and will be very useful at the tim e of drafting the intended legal instrument. 
2. SECTION 2: PROBLEM DEFINITION  
2.1. What is the issue or proble m that may require action? 
The UN Convention on the Law of the Sea3 as well as the UN Fish Stocks Agreement4 
require coastal states and states fishing for such stocks on adjacent high seas to cooperate 
in managing responsibly stradd ling and highly migratory fish stocks in order to ensure 
their long-term sustainabilit y, either by direct consultation amongst each other or via the 
appropriate Regional Fisheries Mana gement Organizations (RFMOs). 
Disagreement on the management of straddlin g and highly migratory stocks may occur: 
arriving at useful arrangements requires the willingness of all par ties concerned, the EU, 
the EU and coastal states and th ird countries, to cooperate. It is  not infrequent that one or 
more of the third parties lack such a good will and choose to fish at a unilaterally 
established high intensity for a number of years before consultations are concluded 
successfully. Such behaviour may lead to cons iderable depletion of the fish stock in 
question even if other parties engage  in moderating their fishing rates. 
The EU is now suffering the consequences of too long and unsuccessful consultations 
and negotiations, both between the North-East  Atlantic coastal states and in the 
framework of the North-East Atlantic Fish eries Commission (NEAFC), before agreement 
was finally reached on the management of the North-East Atlantic stock of blue whiting. 
In order to satisfy the unrealistic demands of  some of the countries fishing for blue 
whiting and lacking instruments to convince th ese countries to lower their aspirations 
towards more reasonable positions, TACs were  fixed at levels well above (doubling, in 
some years) the levels advised by fishery sc ientists. This has re sulted in disastrous 
consequences for the status of this stock and therefore for certain EU fleets which target 
it. Furthermore, the rebuilding the stock to sustainable levels in the medium term has 
become difficult. In fact, the protracted disagr eement led to a very grave depletion of this 
stock which meant that the Total Allowable Ca tch (TAC) for this species had to be set 
for 2011 at 40,100t, which represents less than  7% of the level for 2010 (540,000t). Such 
outcomes run contrary to the fundamental objectives of the EU 's Common Fisheries 
Policy (CFP). 
At present the EU faces a similar problem with the stock of North-East Atlantic 
mackerel. In this case the l ack of agreement among coastal states, mainly due to Iceland 
and Faroe Islands maintaining inflexible and unrealistic negotiating positions, is compounded by Faroe Islands and Iceland's setting of autonomous catch limits at very high levels, not supported by any objective argu ment either on the basis of historical 
                                                
 
3  United Nations Convention on the Law of the Sea  of 10 December 1982. 
4  The United Nations Agreement for the Implementation of the Provisions of the United Nations 
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management 
of Straddling Fish Stocks and Highly Migratory Fish Stocks  (in force as from 11 December 2001) 
 
8 rights or stock distribution. These levels of fishing, according to scientific advice, may 
threaten the sustaina bility of the stock. 
A more detailed description of thes e two specific probl ems is given in Annex II , together 
with a list of other stocks for which problem s might arise in the future. It should be 
emphasized that these occur in particular in s ituations where there is  no regional fisheries 
management organization (RFMO) in charge  of the management of the stocks in 
question. In these cases, fisheries manage ment rely only on “understandings” and 
“arrangements” made among the fishing countries  that have little legal binding value. 
This is the main reason why recourse to trad e measures is often the only means to deal 
with alleged misconduct of one of the parties.  
The EU cannot remain idle in these situations  and must be able to  induce third countries 
to abandon harmful unilateral behaviour and show the necessa ry good will to achieve an 
arrangement for the management of migra ting fish stocks (such as mackerel). 
Furthermore, to maintain the offer of a lucr ative market as destin ation of the mackerel 
caught by Iceland or the Faroe Islands remains not only a polit ical contradiction but also 
a stimulus for these countries to continue its intensive over-exploit ation of the stock. 
Following this situation, there were clamorous  requests by all stakeholders that the EU 
should prohibit imports from these countries  of, at least, the species in question. 
The use of import prohibition or restrictions in  the broad field of conservation of natural 
resources and, specifically, in fisheries ma nagement, is not uncommon. There are legal 
frameworks for this such as the CITES Convention5, transposed into EU legislation by 
Regulation (EC) No 338/976, certain recommendations made  in the context of RFMOs7 
and the IUU Regulation8. Furthermore, a number of cases exist in the international scene 
where coastal States have adopted import restrictions on their own for conservation 
purposes9 with various degrees of success.  
However, none of the existing legal instrume nts available to the EU for adopting an 
import restriction or prohibition is appropriate  in cases such as the ones described above 
for mackerel and blue whiting. Fo r instance, and taking the case of mackerel fisheries, i) 
the mackerel stock is not in su ch a danger as to fall under the criteria to have  it listed in 
                                                 
5  Convention  on International Trade in Endangered Species  of Wild Fauna and Flora 
6  Council Regulation (EC) No 338/97  of 9 December 1996 on the protec tion of species of wild fauna 
and flora by regulating trade therein. OJ L 61, 3.3.1997, p. 1–69  
7  See, for example, Recommendation No 2009-11 of ICCAT  amending Recommendation No 8-12 on an 
ICCAT bluefin tuna catch documentation programme 
8  Regulation (EC) No 1005/2008  of 29 September 2008 establishing a Community system to prevent, 
deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 
2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999. 
9  Such as the shrimp/ turtle  case, where in 1989 the USA prohibited imports of shrimps from countries 
that did not have mechanisms to protect turtles from by-catch as efficient as those implemented in the 
USA. This prohibition had been challenged by a num ber of countries, which filed suit with the WTO, 
but at the end the US could maintain the prohibitio n and the process helped to establish case law for 
future application of WTO rules. Other cases were the tuna/dolphin  issue, whereby the US banned 
imports of tuna caught with fishing techniques that led to a high associated mortality of dolphins, and 
the Chile-swordfish  case, whereby Chile prohibited the landing and transit in Chilean ports of certain 
fish species, in particular swordfish caught by EU vessels. These masureswere also challenged by the 
exporting countries and led to a better understanding of  how and when import restrictions can be used 
for conservation purposes. . 
 
9 the CITES appendices10; ii) mackerel fisheries by Icel and and the Faroe islands are 
mostly carried out in their economic exclusiv e zones (EEZs) and hence not subject to the 
competence of NEAFC, the RFMO in charge of  management of macker el in international 
waters of the North-east At lantic, and iii), mackerel fi sheries by Iceland and Faroe 
Islands are carried out under domestic law and as such, they are not illegal and therefore 
cannot be covered by the IUU legislation. 
The only means left for the EU to implement a ban or restriction of imports to Iceland 
and the Faroe Islands in the above-mentioned case would either non-regulatory action (e.g. by the use of market forces) or though a newly created legal in strument adopted by 
the ordinary legislative proce dure (co-decision), which may take no less than one year. 
This is not fast enough. 
The problem can then be summarized as the la ck for the EU of an appropriate mechanism
 
to adopt effectively and timely any kind of trade restriction in case its use could be 
justified to protect fish stocks from situati ons such as those described for mackerel and 
blue whiting. The clear response to this prob lem is to creating a framework allowing the 
EU to address this and future  cases timely and efficiently. 
To sum up, the issue requiring action can be seen from two points of view: 
The general problem : When facing situations of unwillingness by any given third country 
to cooperate on the management  of a straddling and highly mi gratory fish stock in which 
the EU shares an interest and, more importan tly, where the attitude of such country poses 
a risk of overfishing  that would require subsequent sacr ifices by all parties in order to 
rebuild the stock to sustainable levels, ther e is a need to use all possible means to 
convince the country in questi on to abandon that risky attitu de. A clear option would be 
to implement trade restrictions , but the EU does not have a fast mechanism allowing their 
implementation in useful timeframes. 
Specific problems : The above-mentioned problem is not a purely theoretical one. At 
present the EU faces the immediate threat of  overexploitation of th e stock of mackerel 
due to what is perceived as an irresponsible  attitude of Iceland and Faroe Islands. It is 
also possible that similar situations could also occur in the short tem due to a lack of cooperation by other parties which would crea te a risk of over-exploitation for other 
shared stocks of the North Atlantic. In addi tion, similar situations cannot be excluded in 
other areas where the EU shares fisheries with other states. 
2.2. What are the underlying drivers of the problem? 
The main driver of the problem is the hi gh demand for fish which creates a lucrative 
market. In the case of blue whiting a nd mackerel, this demand is both for human 
consumption, especially in deve loping countries, and for fish m eal as a constituent of fish 
feed for aquaculture or fodder fo r other farm animals. It is th is demand that is at the root 
of non sustainable fishing practices from certa in third countries. Secondary drivers are: 
– The high technological development of th e industrialised fleets exploiting most 
straddling and highly migratory fish, allowing very intensive exploitation at relatively 
low cost and increasing the risk of over exploitation, 
                                                
 
10  Furthermore, listing North-east Atlantic mackerel  in the CITES appendices would also affect EU 
exports, which is not desirable for the intended scope and effects of the import restriction. 
 
10 – The large lobbying power of fishing firms e xploiting these stocks, who are capable of 
convincing governments to disregard long-term  conservation goals in favour of short-
term advantages. 
– The lack of effective instruments within the EU to deter third countries from deviating 
from the principles of good cooperation on the ma nagement of stocks of joint interest.  
2.3. What are the main problems which this initiative will address? 
The present initiative aims at providing the EU with a mechanism to effectively 
implement trade-related measures for products fro m stocks that are in situations such as 
those described above for blue whiting and mackerel. These measures would mainly aim 
at promoting conservation of the stocks  concerned by induci ng a reduction of the 
intensity of fishing of the third parties con cerned, this without prejudice to the need to 
continue consultations to conclude a durable  arrangement for the management of these 
stocks. 
This mechanism would complement, but not overlap with, the measures adopted under 
the IUU Regulation. The action that is being explored in the pres ent context does not 
target illegal fisheries stri ctly speaking, but fisheries not conducted within a legal 
framework guaranteeing sustainability. 
2.4. Who is affected, in what ways, and to what extent? 
The problem of overfishing as a result of certain  irresponsible attitudes of third countries 
and the lack of appropriate instruments by the EU to avoid that situations is to be seen in 
the short, medium and long terms. The expected effects would be: 
- For the fishing industry : in the short term, increased competition for the limited 
market and a possible decreased income as a result of price flexibility; in the medium 
to long term, decrease of yields due to scarci ty of the resource and the need of drastic 
management measures. This will lead to important economic and job losses. 
- For the processing industry : increased availability of s upply of raw material at low 
prices in the short term, coupled with perhaps increased temporary jobs. In the 
medium to long term, just the opposite effect resulting on the need to find alternative sources of supply at presumably higher prices. 
- The consumers
 will not likely benefit from the in creased supply in the short term; the 
effects in prices will probably be neutraliz ed by increased earni ngs and jobs in the 
processing and distribution industries. They wi ll, in turn, feel the effects of decreased 
supply in the long term by paying higher prices. 
- The EU and national administrations  would be seen, both in the short and long terms, 
as incapable of dealing with the problem. Lack of confidence in  public institutions 
will be reflected in opinion polls and this may have important repercussions in other policy fields. 
The setting up of an instrument enabling the EU to implement trade restrictions would 
per se , even with no implementation in a concre te case, have a dete rrent effect on third 
countries  subject to the temptation of behaving as in the case of mackerel described 
above. 
 
11 Where the legal instrument would be used in  a concrete case, then the list of actors 
affected would depend very much of the type of fish products that would be subject to 
import restriction. As an indication, the following  actors will be most likely affected in 
the short term: 
– The fleets of third country  concerned exploiting the stoc k in question would have the 
EU market closed to their products. This may decrease their interest to fish for that 
stock. The extent to which they would be affected would depend on whether they land 
their catch directly in the EU , or in other countries (inc luding their own country) and, 
in this case, on the part of the catch landed that was destined to the EU.  
– The EU processing firms  that rely on raw material from the stocks and countries 
concerned will have to give up using that ma terial and find out alternative sources or 
solutions. The extent to which this may cons titute a real problem cannot be anticipated 
except on a case-by-case basis. 
– Where the third country was exporting direc tly to EU markets for human consumption  
(mainly supermarkets), the population aff ected would be both these markets and, 
ultimately the consumers . Again, the extent to which di stribution firms, supermarkets 
and consumers would be affected depends highly on the type of product and the 
possibilities to find alternative products to satisfy the demand. 
– Where the products were introduced in the EU  as fish meal, either combined or not 
with other substances to constitute animal feed, then a prohibition or restriction of 
imports could affect the fish, pig or poultry farms  using those feeds to an 
unpredictable extent, which would depend –aga in- on the availabil ity of a lternative 
sources. 
– In cases where the imports would concern raw or elaborated material for other 
industries  (e.g. shark liver oil used in cosmetics) , then these firms would need to adapt 
to the new situation looking for alternative sources. 
In all cases, where the propos ed action achieves its obj ective to contribute to a 
sustainable exploitation of th e stocks concerned, then all the above-mentioned actors will 
be winners in the medium-to-long term. 
2.5. How would the problem evolve, all thin gs being equal? N.B. Scenario(s) 
should take into account actions al ready taken or planned by the EU, 
Member States and other actors. 
Taking the case of mackerel as an example, without an instrument dissuading Iceland and 
Faroe Islands from continued fishing for mackerel  at the present very high levels, there is 
no way to avoid that the stock will rapidly be  depleted to levels from which recovery 
may take very long and difficult periods of very low catch. The EU  fishing industry, and 
more particularly the pelagic fleets, mostly constituted by large and sophisticated vessels 
that required large economic i nvestment, will not be able to stand such a situation. 
Even in case where an arrangement could be found on mackerel, there are no guarantees 
that any of the countries neighbouring the EU  would start taking au tonomous decisions 
to satisfy short-term demands by parts of thei r fishing industry that might endanger the 
sustainability of other fish stocks of co mmon interest. The power  of NEAFC to put 
together North-east Atlantic coastal states in  managing fisheries is limited to the NEAFC 
Regulatory Area, beyond the resp ective EEZs of contracting parties, and there will be an 
 
12 increasing need to adopt ad-hoc  arrangements between coastal States on the management 
of straddling and hi ghly migratory fish. 
It has been claimed that the case of mackerel was originated by climate change which in 
turn induced a change in the migration pa tterns of this fish, making it increasingly 
abundant in Faroe Islands and Iceland. Hors e mackerel being a species ecologically 
similar to mackerel, it could be likely candidate  for a shift in distri bution and for future 
problems of joint management. Other widely-distr ibuted stocks of the North-east Atlantic 
which are not entirely free from such as s ituation are Atlanto-Scan dian herring, redfish, 
Greenland halibut and deep-water stocks. It is clear that there is no r eason to believe that 
these problems will certainly occur, but it is also true that the lack of an instrument as the one foreseen following this impact assessmen t is on its side an additional incentive for 
countries or fleets to  fail to cooperate. 
The analysis of the options presented in Sec tion 5 of this report includes the assessment 
of the effects of Option 1, "taking no action", which illustrates, in the case of mackerel, 
how the problem would likely evolve without specific action. All impacts 
(environmental, economic and social) are negative and substantial. 
2.6. Does the EU have the right to ac t and is EU added-value evident? 
2.6.1.  Legal basis and subsidiarity 
The ultimate purpose of the intended instrume nt is to avoid overe xploitation of fish 
stocks and to promote a responsible mana gement framework for certain straddling 
and highly migratory stocks, i.e. the c onservation of certai n marine biological 
resources, but the intended instrument (r estriction or prohibition of imports) falls 
under the competence of the common comme rcial policy. The Le gal Service has 
however concluded that it is Article 207 TFEU (which refers to the common 
commercial policy) which should be used as  legal basis (see Section 2.5) if a legal 
instrument is to be adopted in this c ontext. That instrument would fall under the 
exclusive competence of the EU and s hould follow the ordinary legislative 
procedure.  
Given the exclusive EU competence for th e intended instrument, the principle of 
subsidiarity does not apply in this case.  
2.6.2.  Fundamental rights limits 
None of the fundamental rights as defined in the EU Charter of  Fundamental Rights 
is affected either by the problem or by the intended instrument. The right of the EU 
to exert its exclusive competence is not  therefore limited by these fundamental 
rights. 
 
13 3. SECTION 3: OBJECTIVES  
3.1. What are the general policy objectives?  
The general policy objective of this initiative is to contribute to the conservation of fish 
resources, which is the main objective of the common fisheries policy, as defined in 
Article 2 of the basic CFP Regulation11: 
The Common Fisheries Policy shall ensure  exploitation of living aquatic resources 
that provides sustainable economic, environmental and social conditions 
Here "sustainable environmental conditi ons" means specifically the conservation 
(sustainability) of fish stoc ks. This objective re sponds to the general objectives of the 
agriculture and fisheries policy as set out in Article 39(1a) TFEU and in particular to 
their first objective: 
To increase agricultural productivity by promoting technical progress and by 
ensuring the rational development of agricultural production and the optimum utilisation of the factors of production, in particular labour. 
This objective should, in accordance with Ar ticle 38(1) TFEU, be understood having 
regard to the specific characteri stic of the fisheries sector. In the fisheries sector, where 
the natural productivity of the sea cannot be  artificially increased, the terms "increase 
agricultural productivity" shoul d be understood as maintaini ng fish stocks at their 
maximum sustainable yield (MSY) . This objective is furthermore consistent with the 
objectives and principles of various inte rnational fishery management instruments12. 
3.2. What are the more specific/operational objectives? 
The CFP has all the necessary instrument s to aim at the above-mentioned general 
objective as far as EU-exclusive fish stocks are concerned. For stoc ks which are shared 
with third countries, the CFP also has the appropriate instruments as long as formal 
international cooperation frameworks have been consolidated, as it is the case of RFMOs 
and fisheries agreements with third countries. 
However, in the case of shared stocks in areas not covered by a RFMO, the EU depends 
too heavily on the good will of other coastal st ates and has no efficient means to force 
                                                 
11  Regulation (EC) No 2371/2002  of 20 December 2002 on the conservation and sustainable exploitation 
of fisheries resources under the Common Fisheries Policy. OJ L 358, 3.12.2002, p. 59 
12  Among these international agreements, the most relevant in this context is the UN Fish Stocks 
Agreement (see footnote No 6). Article 5 makes particular reference to MSY:  
"In order to conserve and manage straddling fish stocks and highly migratory fish stocks, coastal 
States and States fishing on the high seas shall, in giving effect to their duty to cooperate in accordance with the Convention: 
(a)  adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory 
fish stocks and promote the objective of their optimum utilization; 
(b)  ensure that such measures are based on the best scientific evidence available and are designed to 
maintain or restore stocks at levels capable of  producing maximu m sustainable yield, as qualified 
by relevant environmental and ec onomic factors, including the sp ecial requirements of developing 
States, and taking into account fishing patterns, the interdependence of stocks and any generally 
recommended international minimum standards, whether subregional, regional or global"   
 
14 non-cooperative coastal states towards agre eable management solutions (see cases 
described under Section 2 above).  
The operational objective of the initiative cove red by this IA is therefore to provide the 
EU with a trade-based instrument to contri bute to the general obje ctive of maximizing 
fish yields of stocks shared with third count ries by deterring them to adopt measures that 
run against fish stock conservation principles and forcing them to cooperate with the EU 
on the management of the stocks concerned. 
Secondary operational objectives, derived from the above-mentioned one, would be 
securing the competitiveness, income and jobs of the different sectors of the fishing industry in a long-term  sustainable basis. 
3.3. Consistency of these objectives with other EU policies 
The general objective 
The general objective of conservation of fish stocks and maximizing their yields is fully 
compatible with all other EU policies. Perhaps the EU policy more directly related to this objective is the environmental policy
. In this context, it is wo rth noting that the initiative 
covered by this IA not only is compatible with the objectives of the environmental policy 
as defined in Article 191(1) TFEU, but cont ributes very substantially to two of them: 
prudent and rational utilisa tion of natural resources and promoting measures at 
international level to deal with regiona l environmental problems. Furthermore, 
compatibility is also evident with specifi c objectives of some instruments of the 
environmental policy, such as, for example,  the Marine Strategy Framework Directive 
(MSFD)13, whose objective is to achieve good envi ronmental status for European seas 
and for which one of the descriptors of this st atus is maintaining fish stocks at levels 
producing maximum sustainable yield14. 
The extent to which conservation of fish stocks contributes to other EU policies is 
developed in detail in a Communication fr om the Commission to the Council and the 
European Parliament "Implementing sustai nability in EU fisheries through maximum 
sustainable yield"15. 
Furthermore, the general objective of conservati on of fish stocks is fully consistent with 
the Biodiversity Strategy16 and other wide-ranging policies such as the Sustainable 
Development strategy17 and the 2020 Strategy18. It contributes in pa rticular to the 2020's 
flagship initiative "resource Efficient Europe"  
                                                 
13  Directive 2008/56/EC  of the European Parliament and of the Council of 17 June 2008 establishing a 
framework for community action in the field of marine environmental policy (Marine Strategy 
Framework Directive) OJ L 164, 25.6.2008, p. 19–40 
14  Commission Decision  of 1 September 2010 on criteria and methodological standards on good 
environmental status of marine waters (2010/477/EU), OJ L 232, 2.9.2010, p. 14 
15   COM (2006) 360 final  
16  COM(2011)244 final . See in particular target n°4. 
17  As reviewed in 2009: Communication from the Commission to the European Parliament, the Council, 
the European Economic and Social Committee a nd the Committee of the Regions - Mainstreaming 
 
15 The operational objective 
Any trade-related instrument fo r use within the CFP should be  fully consistent with all 
other EU policies. As a matter of  principle, this consistency could be seen as problematic 
in the field of the EU commercial policy , which is designed to contribute to the 
progressive abolition of rest rictions in international tr ade (Article 206 TFEU) and in 
particular as regard the respect for international trade agreements. 
In this context it is to be noted that most international trade agreements by which the EU 
is bound have incorporated rules (general ex ceptions) granting the possibility to adopt 
trade restrictions for reasons of conservati on of natural resources. It is important 
therefore to design the intended instrument  carefully to guarantee that the trade 
restrictions foreseen fall unequivocally w ithin the general exceptions of these 
agreements . 
It is particularly important to analyze the general exceptions granted within the GATT19, 
because these would be of universal applica tion within the intended instrument. Article 
XX of this Agreement stipulates (only the text  that is relevant ha s been copied below): 
"Subject to the requirement that such me asures are not applied in a manner which 
would constitute a means of arbitrary or unjustifiable discrimination between 
countries where the same conditions prevail, or a disguised restriction on 
international trade, nothing in this Agr eement shall be construed to prevent the 
adoption or enforcement by any c ontracting party of measures: 
(...) (b) necessary to protect human, animal or plant life or health; (...) (g) relating to the conservation of exhaustib le natural resources if such measures 
are made effective in conj unction with restrictions on domestic production or 
consumption; (...)" 
The trade restrictions foreseen in the intended instrument can never be taken as "a 
disguised restriction on international trade" b ecause they will be explicit restrictions. But 
care should be taken that they must be: 
– Non discriminatory: should apply to all c ountries where the same conditions prevail 
and 
– Necessary to protect animal  life or health or/and 
– Related to the conservation of exhaustible natural resources. In this case, the EU 
should have adopted restrictions on domestic production and consumption. 
It is to be noted that, although fish is stri ctly speaking a natural renewable resource, in 
the context of GATT it has been considered in  previous cases an exhaustible resource. 
Conditions for the respect of other applicable  agreements should be examined at the time 
of implementing the instrument for a given st ock and country. As an example, where it 
                                                                                                                                                
 
sustainable development into EU policies : 2009  Review of the European Union Strategy for 
Sustainable Development.  COM/2009/0400 final . 
18  http://ec.europa.eu/europe2020/index_en.htm  
19  General Agreement on Tariffs and Trade .  
 
16 were decided to apply an import ban of m ackerel products from Iceland and the Faroe 
Islands, this should be made under conditions compatible with the bilateral commercial 
agreements existing between the EU and each of these countries and, for Iceland, with 
the EEA Agreement.  
4. SECTION 4: POLICY OPTIONS  
The consultation document mentioned five diff erent policy options, as follows (further 
details on each of them are given in section 5): 
1. To take no action; 
2. to take measures in the form of non-leg islative instruments, such as mechanisms 
of the type "blame and shame", sustainabi lity labels or diplomatic démarches in 
different forms; 
3. to provide the common fisheries policy w ith a regulatory instrument allowing a 
quick response to the problem by im posing a ban on trade on fish products 
derived from the relevant fish stock a nd that have an origin in the country 
concerned; 
4. to impose limited trade restrictions including only easily identifiable fish 
products; 
5. to issue a regulatory instrument provid ing for "counter-measures" in response to 
an "internationally wrongful act" committed by another State. 
From the analysis of the opinions of the ta rget groups consulted, a nd following internal 
reflection within DG MARE after having consu lted the IASG, it has been decided not to 
discard any option for the analysis. Furtherm ore, the consultation document requested 
from the target groups consulted to give an opinion on possible additional options to 
include in the analysis. Among the replies re ceived, just two rea lly new options were 
mentioned: the use of the ITLOS mechanism and the banning of all fishmeal imports 
irrespectively of its species composition. Seve ral target groups mentioned also that a 
combination of options is perhaps a good soluti on. While it would be possible to consider 
the combined approach, and this will be done in the analysis below, the two new options 
suggested (ITLOS and fishmeal) were not reta ined. In first place, the ITLOS mechanism 
is too lengthy and does not respond to the impe ratives of short-term risk of overfishing; 
in second place, the ban on all fish meal produc ts is a disproportionate approach that in 
addition will be difficult to implement. Fu rther comments on the problems associated 
with fishmeal are given in  the analysis of option 3. 
5. SECTION 5: ANALYSIS OF IMPACTS  
The impact of each of the options mentioned from an economic, environmental and 
social perspective would depend very much on  many factors, such as the nature of the 
dispute in question, the countries involved, the species concerned, the volume of trade 
concerned and so on. For that reason, a theoretic al analysis of the impact can only be 
made taking a known case as a basis. Since it is the mackerel dispute the one that 
triggered the present exercise, it is natural that  the analysis be done ta king it as a basis. In 
any case, the analysis will also incorporate theoretical reflections on effects that do not 
 
17 apply specifically to mackerel. It must be underlined that the effects commented in this 
IA are highly speculative and appl y just in the case of macker el as it is known at the date 
of drafting this IA. It is possi ble that for other stocks the e ffects could be either magnified 
or attenuated, depending on the population dynami cs of each stock, the relative sharing 
among the parties, the flows of tr ade, the economic value, etc. 
Methods: 
There is no standard met hodology to analyze similar situ ations. What follows is a 
methodology chosen ad hoc  for this case, based on current practice in fisheries science 
and on reasonable assumptions co ncerning the behaviours of th ird countries’ authorities 
in response to one or another option. 
Biological assessment 
The environmental effects, i.e., the conse quences on the evolution of the stock, are 
calculated with a spreadsheet de signed specially for this case. The data source are copied 
from the results of the assessment carried out by ICES20, namely from the 2010 report of 
the Working Group on Widely Distribute d Stocks (WGWIDE). The recruitment21 in 
2011 and successive years is taken as the one  assumed by ICES, based on the geometric 
mean of recent values, since ICES did not find any means to predict the coming 
recruitments.  
The forecasts have been conducted for a period of twelve years, in order to obtain 
theoretical long-term values. However, it should be noted that the catch predictions 
should be taken with great precaution when they  extend for more than two or three years; 
going further ahead would yield results too h eavily dependent on recruitment values that 
cannot be predicted with any accuracy. Furthe rmore, the assessment done by ICES is not 
free from error –in fact ICES warns about th e little precision of  the results of the 
assessment, and on the other hand, the assumpti on of a constant value for recruitment at 
the current high values is perhaps overoptim istic. In any case, the theoretical values 
obtained for the long-term under an assumption of  constant recruitmen t are still valid to 
compare the different management strategies. 
The economic effects are cal culated on the basis of cu rrent price of about 1 €/kg quoted  
in the market for human consumption, acc ording to the most recent report from 
STECF22.  This price is consistent with t hose found from severa l other sources (e.g. 
Eurostat). 
To better assess the consequences of each of the options, a baseline needed to be chosen. 
Since the status quo  is not an option, it was preferred to build up a theoretical scenario on 
the basis of what could be taken as the desirable scenario . This was made assuming the 
following conditions on the management of the stock: 
– The 2011 TACs would remain unchanged (it is  already too late to change them) 
                                                 
20  International Council for the exploration of the Sea . All ICES reports quoted in this IA can easily be 
retrieved from this website. 
21  The number of new individuals becoming available to the fishery each year as a result of reproduction. 
22  The 2010 Annual Economic Repo rt on the European Fishing Fleet 
https://stecf.jrc.ec.europa.eu/reports/economic  
 
18 – For 2012 and successive years, an arrangement is approved by all Coastal States to 
follow the 2008 management plan and to allo cate the resulting catch according to the 
following proportions: EU: 52.49 %; NO: 23.95 %; ICE+FI: 17.02% and NEAFC RA 
(Russian Federation): 6.54%. These figures we re chosen as representative of what a 
hypothetical agreement could have been c oncluded for 2011 where the figures could 
have been: 
EU: 401 000t; NO: 183 000t, as agreed; ICE + FI: 130 000t, a round fi gure reflecting shares for each country close to but 
below 10%. The relative shari ng between these two countri es is controversial and 
unneeded for this exercise. 
NEAFC RA (Russian Federation): 50 000t, a round figure close to the value 
approved for 2011. 
– This would result in the following shares: EU: 52.49%; NO: 23.95%; ICE+FI: 17.01% 
and NEAFC (RF): 5.34% 
These figures are merely chosen for the pur pose of this exercise, without prejudice for 
the EU to consider this as an acceptable solution. 
The benchmarks
 used to assess the performance of one or another option are the 
following: 
1. A spawning stock biomass23 (SSB) of 1.7miot  is taken as the lowest desirable 
level for the spawning stock biomass. A ccording to ICES, this is the lowest 
observed value and below it the dynamics of the stock are unknown. It is taken as the value to avoid with high certainty. In  terms of fisheries management, such 
level is commonly referred to as SSB
lim or, simply, B lim. This value also 
corresponds to level which, according to the NO-EU ag reement, would trigger 
drastic management measures. 
2. A SSB of 2.2miot  has been agreed between Norw ay and the EU as the level 
below which the rate of fishing should be decreased in order to rebuild the stock. 
According to ICES, this is the size of the stock that would produce maximum 
sustainable yield. 
3. A fishing mortality24 of F=0.22  is taken as target value in the long term. This is 
based on the long-term management plan  agreed between Norway and the EU, 
which advocates a target  F between the values of 0.20 and 0.22. ICES has 
assessed the value of F=0.22 as compatible with the precautionary approach, since it ensures a very small probab ility for the stock to fall to the B
lim level. 
ICES has also estimated that a rate of fishing at the level of F=0.22 would lead 
the stock to the level produc ing maximum sustainable yield. 
The results of the desirable scenario can be seen in any of the Options below for which 
assessments and catch forecasts have been conducted. In few words, 
                                                 
23  The weight (biomass) of the part of the stock constituted by sexually mature individuals. 
24  An expression of the rate at which fish are removed from the stock by fishing activity. 
 
19 – For 2012, the EU catches would decrease from  current levels, due to the rather 
lower fishing mortality chosen. But soon the expected catches would be 
stabilized at the long-t erm value of around 302 000t. 
– The SSB would soon stabilise at about 2.450miot, safely above the level of 
2.2miot.  
– With this management strategy, the risk for SSB falling below the limit of 
1.7miot would be negligible (<5%, according to ICES).  
Estimation of the administrative burden 
The administrative burden has been calculated using the ad-hoc  tool provided by the 
Secretariat General website "Better Regulation"25. The calculation is based on the 
determination of the type of obligations generated by a given measure (such as 
production of new data, reporting, inspection, ch ecking, etc), the target groups that carry 
the burden of this work (port authorities, import-export fi rms, etc) and the number of 
times every obligation needs to be executed. The tool then applies standard rates and 
calculates the costs in euros. The details on th e calculation can be seen summarized in the 
spreadsheets of Annex III . The net results are shown unde r each of the options below.  
Option 1: Take no action  
Description of the action  
This would be equivalent to co ntinue as in recent months:  
1. There would be no agreement for catch limitations of mackerel for 2011;  
2. The next round of consultations for 2012 will take place in the autumn; since 
there will be no pressure on Iceland and Fa roe Islands to lower their aspirations 
other than what can be transmitted verbally during the consultations, it is likely that both countries conti nue their excessive demand and there would be no 
agreement either for 2012.  
3. The behaviour of each of the parties in  fixing their management goals for 2012 
and successive years would mimic that observed for the 2011. Iceland and Faroe Islands will continue to fix, at least fo r 2012, an autonomous catch limit at levels 
similar to the one adopted for 2011. While it is difficult to guess the precise figures, one can assume that these countri es will modulate their decision by the 
ratio between the catch forecasted by ICES for 2012 and that forecasted for 2011 if the 2010 management plan were followed
26. In other words, if the catch 
forecasted for 2012 were 550 000t, this represents 85% of the catch forecasted for 2011 (646 000t). Iceland, who set a TAC for 2011 of 154 825t, would then set a 
TAC of 154 825*0.85=131 601t. The other Coastal States would apply the same scheme. 
                                                
 
25  http://adminburden.sg.cec.eu.int/calculator.aspx   
26  This was the basis for Iceland setting the 2011 TAC: the TAC adopted for 2010, multiplied by the ratio 
of the catch forecasted by ICES for 2011 and 2010.  
 
20 4. The trade into the EU would follow the trends obs erved in since 2008, i.e., the 
year when Iceland started the fishery in its EEZ. 
The environmental effects  
The following graphics show the forecasted evolution of SSB and F (po stands for 
desirable scenario) 
050010001500200025003000
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024SSB ('000t)SSB(Opt 1 )
SSB(po)
 
0,0000,0500,1000,1500,2000,2500,3000,3500,400
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024Fishing mortality (F)F(Opt 1 )
F(po)
 
The expected effects of this option are therefore that fishing mortality will remain at 
values slightly above F=0.3, more than 40% above the value decided in the management 
plan, and that the SSB will rapidly decrease to about 2miot, a value decidedly below the 
alert level of 2.2miot, this despite the fact of assuming a continuati on of the high recent 
recruitment values. 
It should be noted that any strategy based on th ese levels of fishing mortality (F=0.3) was 
excluded by ICES in its evaluation of 2008 becau se it was non-precautionary, i.e. it led to 
a high probability of the SSB falling in the mid term below 1.7miot, the lowest 
admissible value for this  stock. The ICES estimate is that at these levels the probability 
for SSB to reach that critical value would be higher than 21% 
 
21 The economic effects  
The following graphic shows the results of this simulation in terms of the expected 
evolution of the EU catch: 
050100150200250300350400450
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024EU catchEU(Opt 1 )
EU catch (po)
 
• Comparison with the desirable option would hence lead to the following conclusions 
for Option 1: 
1. This option would appear to give increased  yields for a two consecutive years, but 
these would decrease afterwards to st abilize at values of 260 000t, which 
represents a long-term loss of potential yield of 14% annually, compared to the 
desirable option value of 302 000t.  
2. Losses in yield are traduced immediat ely in economic losses for the catching 
sector. In absolute figure s these can be evaluated as  40mio€per year. Losses in 
yield also imply a lower supply to the pr ocessing industry, which would be forced 
to search for alternative sources, which always imply an additional cost. This last aspect is controversial because under this scenario the catches by Iceland and Faroe Islands would remain high and ther efore can increase their supply to the 
EU market if EU prices increas e due to the increased demand. 
3. Furthermore, and very importantly, most EU mackerel fisher ies are certified by 
the Marine Stewardship Council (MSC)
27 and can therefore exhibit the MSC 
label, which gives a preferential access for certain markets. Option 1, clearly 
unsustainable by all standards, might lead  to the loss of the MSC certificate and 
therefore to the loss of acce ss to markets based on sustai nability criteria. Neither 
Icelandic nor Faroese mackerel  fisheries are MSC-certified. 
4. The long-term economic loss would be greater than the 14% loss in yield 
because, by fishing at a fishing mortalit y 40% above the value for the desirable 
option, the fishing effort and hence the fish ing costs would be assumed to also be 
                                                 
27  http://www.msc.org/  Up to eight EU mackerel fisheries are MSC-certified, for a production of more 
than 364 000t in 2009. 
 
22 40% higher. Consumers would perhaps pay their part to alleviate these losses 
through increased prices. 
5. According to ICES, for a value of fishi ng mortality F=0.3 like the one under this 
Option, the risk that SSB would fall belo w the value of 1.7miot is above 21%, far 
too high, compared to the need to avoid th at value with a probability higher than 
95%. Achieving those SSB values woul d oblige to adopt very drastic TAC 
reductions when not a total ban on fi shing, which would imply dramatic 
consequences for the fishing industry. 
6. The mackerel fishery is now the most economically important in the EU. Losses 
for the industry associated to mackerel will also mean an important economic 
underperformance of the EU fi shing industry as a whole. 
The social effects:  
These are difficult to predict due in particular to lack of data on the precise structure of 
the pelagic fishing industry, which is in addition very di fferent among Member States. 
However, it is important to note that the low long-term economic performance of this 
option would always have a social repercussi on. Furthermore, low yield or low economic 
revenues obtained at higher fishing effort (w hich includes workforce) would inevitably 
result in either lower wages or increases in  efficiency leading to unemployment, or both. 
The social consequences of this option can also  be assumed to be more severe in fleets 
operating very labour-intensive fishing techni ques, such as hand-liners. These fleets are 
particularly important in south-west Engl and (small-scale vessels operating in the 
mackerel box28) and in the northern Iberian peninsula. 
The administrative costs:  
This option does not entail any a dditional administrative costs  
Option 2: the non-le gislative instrument.  
Measures under this option could be: 
– Guidance to markets and consumers to wards products caught  sustainably and 
according to good management practice. An informed consumer could restrict its 
choices only to products that  are caught within a framewor k of agreed and sustainable 
management practice. This guidance can be  provided by either the fishing industry, 
public authorities of NGOs, in the form of transparent information on what is going on 
about the management of straddling and highly migratory stocks. For it to be efficient, 
guidance should be accompanie d by a detailed labelling syst em enabling consumers to 
determine the origin of the products. 
– A particular case in the context of guidance can  be the use of eco-labels. In the case of 
mackerel, the MSC label (see under the econo mic analysis of Option 1) allows the 
consumer to be sure that a given product satisfies the MSC standards (see comments 
                                                 
28  The mackerel box is a large area around the Cornwall peninsula where juvenile mackerel usually 
concentrate and where pelagic trawling is forbidden. A specialised fleet of ha nd-liners operates here. 
 
23 on MSC under Option 2 below)29. For eco-labels to be effective, they should also 
provide Chain of Custody standards for tr aceability. MSC possesses these standards. 
– Diplomatic action can also be included in this  context. For it to be effective, it should 
be widely know by the public and put in ad equate contexts. In the case of mackerel, 
for example, any diplomatic communicati on made to Iceland referring to its non-
sustainable fishery, will be embarrassing fo r a country so proud of its standards in 
fisheries management. 
It should be noted that th is option received a very weak support from the fisheries 
industry (mostly catching secto r). Only one organization repr esenting the fish processing 
industry showed certain sympat hy for this approach. Member States were neither hostile 
to it nor manifestly in favour. 
Environmental effects:  
This option has no direct environmental effect s. The expected effect of this type of 
measures, in particular eco-labels, is an  indirect one, i.e. the promotion of good 
environmental practices through the forces of the market, by guiding the demand towards 
products having certain envir onmental advantages. Howeve r, according to a recent 
study30, eco-labels in the fisheries domain do no t work as well as in other domains in 
promoting more sustainabl e production practices:  
"(…)The results revealed that there is a large variation in the purchase of 
ecolabelled products across the 18 countri es considered. Sweden, Denmark, 
Austria, and Luxembourg are the leading count ries in the purchase of ecolabelled 
products, whereas consumers in Eastern and Southern European countries tend to 
buy the fewest ecolabelled products. 
Yet, neither the involvement of the state nor the multitude of the ecolabels had a 
strong effect on the purchases of ecolabe lled products. Instead, market supply and 
demand seem to be the most important dr ivers of the consumption of ecolabelled 
products." 
It should be noted that the main consumers of mackerel ar e southern countries (Spain, 
Portugal and Italy) and an eastern country (Poland). 
It is therefore paradoxical that most EU fl eets fishing for mackerel have requested and 
obtained MSC certification for their products, for a market which do not appear as 
"demandeur" of eco-labelled products. This can be explained by the fact that, rather than 
consumers, it has been the large retailers th at, driven by pressure from environmental 
NGOs, have committed to sell only certif ied products. The paradox becomes more 
evident if one examines the results of the consultation for this IA , where virtually all 
fishing organizations representing the catching sector qualified Option 2 as either "a last 
resort" or "ineffective". 
                                                 
29  The MSC standards for sustainable fishing are ba sed on the FAO criteria fo r eco-label certification, 
and are related to both the environmental status of fish stocks, the management system attached to it 
and the environmental effects of fishing practices. 
30  Koos, S. (2011) Varieties of Environmental Labelling, Market Structures and Sustainable 
Consumption across Europe: A Comparative Analysis of Organizational and Market Supply 
Determinants of Environmental-Labelled Goods. Journal of Consumer Policy. 34:127-151. 
 
24 It should also be noted that  there is a possibility that acquiring a certif ication enabling 
fishing products to display an eco-label canno t be possible in the s ituations covered by 
this IA. As a matter of fact, the standards for certification are generally based on the FAO 
guidelines for the eco-labelling of fish and fishery products31 and include criteria for the 
management system such as (for example in MSC Principle No 3): " The fishery is subject 
to an effective management syst em that respects local, nati onal and international laws 
and standards and incorporates institutional and operational frameworks that require 
use of the resource to be responsible and sustainable ". The current situation, where there 
is no effective international management fr amework, might be taken as incompatible 
with this criterion. 
As far as information to the public and diplomatic action ar e concerned, the experience 
through nearly one year of dispute with ampl e press coverage and giving rise to strong 
political messages in exchanges of corre spondence between the EU on one part and 
Faroe Islands and Iceland on th e other part, shows that this  action had only very little 
effect. It led to these countries to resume ta lk but at the end of the day their preparedness 
for a negotiated solution did not appear to have changed.  
In conclusion, it is possible to assume that  the environmental effects of Option 2 would 
be, albeit perhaps positive, very minor. 
Economic effects:  
With such weak environmental effects, the expected net economic impact of the measure 
does not appear very encouraging. Furthermor e, MSC certification is a rather expensive 
process that only powerful fishing companies ca n afford if there is no public financial 
support. In fact, the specialis ed press often reports about fishery operators becoming 
discouraged to engage in a certification proc ess due to the relatively high associated 
costs. As said above, the main consumers from southern and eas tern countries would 
likely pay more attention to prices than to  eco-labelling or divulgation campaigns, so the 
effect on them will not be appreciable. 
Social effects:  
Social consequences in terms of employment, working conditions, rights of workers, etc, 
which are generally associated to economic e ffects, would be neutral or negligible under 
this option. However, improved guidance to  consumers through information campaigns 
associated or not to eco-labels would indirectly have a rather positive effect in increasing the awareness of the public about the fishing sector and its associated management 
problems. This will always be a good thing because public support is essential to 
guarantee implementation and enforcement of fishery management rules. 
Administrative costs:
 
This option entails substantial administrati ve burden both for the public and the private 
sector, since the action it requires in terms of  information is continued and not just one-
off. The eco-label certification process is on its side expensive and, although there may 
be grants available in its s upport, it weights considerably in the economy of the catching 
sector. 
                                                 
31  http://www.fao.org/docrep/012/i1119t/i1119t.pdf   
 
25 Costs associated to eco-label s are, according to MSC: 
– Costs of fishery certification: between 10 500€ and 84 000€ per fishery 
– Costs of certification for the supply chai n: no estimate given by MSC, but one can 
assume about 10 man/days of an auditor specialist, plus a few travel expenses. 
Roughly, about 10 000€  
These two costs are incurred only the first year. 
– Charges for label use: a fixed annual amount  depending on the level of sales, plus 
0.5% of the sales. If one a ssumes that half of the mack erel catch by the EU is MSC-
certified and one fourth of the retailers are willing to display the MSC label, the charges for the label can be estimated as above 37 500€. This cost can be taken as an annual administrative burden that will be ma intained every year. To this, one must add 
the costs of advertising campaigns to info rm consumers and guarantee the success of 
the ecolabels.  
It can be assumed that the total associated ad ministrative costs of ecolabels can easily be 
well above 50 000€ per year, after an initial investment of between roughly 20 000€ and 
95 000€. 
Option 3: Regulatory instrument allowing to prohibit trade on all fishery products 
from the stock in question  
Description of the option:  
This option consists on banning the import into the EU from the third country in question 
(in the present case study, Icel and and the Faroe Islands) of the fish concerned and any 
products derived from it (in this case, any mackerel or  fish products derived from 
mackerel). To do this efficiently, a regulation is to be issued enabling the Commission to 
adopt the import prohibition as soon as there is  a case for doing so and to withdraw the 
prohibition whenever the conditions to tri gger the prohibition are not met anymore. 
According to the advice of the Legal Serv ice, the Commission c ould exert its powers by 
an implementing act. The regulation would also  establish the criteria  and procedures on 
the basis of which the Commissi on would take its decision to either issue or withdraw the 
import prohibition. This would include the sett ing of adequate control Committees in the 
context of the new “comitology” framework32 and detailed criteria to exert the 
implementing powers, such as specific im pact assessments for every implementing 
decision. These impact assessments should include indicators on stock conservation (biological reference levels) and on the poten tial effects on the EU  processing industry, 
which may be highly dependent on the imported products. 
Mackerel can be imported under the main following forms: 
– Fresh or chilled; 
– Whole frozen, Headed and Gutte d (H/G), Flaps and Fillets; 
– Canned; 
                                                
 
32  Regulation (EU) No 182/2011  of the European Parliament and of the Council of 16 February 2011 
laying down the rules and general principles concerni ng mechanisms for contro l by Member States of 
the Commission’s exercise of implementing powers 
 
26 – Roe; 
– Fish waste; 
– A number of highly elaborat ed products such as fishmeal, fish oil, fish feed, 
encapsulated Omega-3 fish oil, Hydrolysates, fish protein. 
In order to foresee the potential effects of a ban on imports of mackerel from Iceland and 
the Faroe Islands, it is important to anal yse the current flows of these products. 
Imports of mackerel into the EU from I celand and the Faroe Islands have become 
important only very recently, following th e expansion of the mackerel fishery: 
 2008 2009 2010 
Mackerel (*) Volume(t) Value('000€) Volume(t) Value('000€) Volume(t) Value('000€) 
From all countries 70 728 107 064 65 221 97 270 56 789 89 759 
From Iceland 331 253 165 186 2 685 2 790 
From FI 1 124 1 130 1 576 1 863 11 760 13 334 
(*)Fresh or chilled;Whole frozen, Headed an d Gutted (H/G), Flaps and Fillets, Canned 
The greatest proportion of these imports (>98%) is in the form of whole round mackerel 
frozen. As far as other fish products that potentially contain mack erel, the imports are 
only significant for fish waste, fish meal and fish oil, as follows: 
 2009 2010 
Fish waste (051191) Volume(t) Value('000€) Volume(t) Value('000€) 
From all countries 173 272 47 031 185 273 53 409 
From Iceland 23 395 3 653 26 887 4 696 
From FI 20 514 3 859 22 727 5 378 
 
 2009 2010 
Fish meal (230120) Volume(t) Value('000€) Volume(t) Value('000€) 
From all countries 562 187 413 949 427 916 472 624 
From Iceland 22 135 19 229 18 098 23 257 
From FI 4 130 3 331 10 860 13 243 
 
 2009 2010 
Fish oil(*) (1504) Volume(t) Value('000€) Volume(t) Value('000€) 
From all countries 173 272 47 031 185 273 53 409 
From Iceland 23 395 3 653 26 887 4 696 
From FI 20 514 3 859 22 727 5 378 
(*) May include oils from marine mammals; however, most of it (at least 80%) is of fish origin 
It is not possible to determine the proportion of mackerel as constituent of these products. 
However, the time at which mackerel is cau ght (the feeding season) implies that its 
contents in fat is excessive for human consumption and the fish is better fitted for transformation into meal and oil. We can th erefore work on the a ssumption that a fair 
proportion of these exports ma y have been produced by c onsiderable quantities of 
mackerel. It should also be noted  that the conversion factor fo r fish meal and oil to live 
weight of pelagic fish  is taken as 1:5. 
One may conclude that a resolu te ban on imports may have a fair important effect on the 
external trade from the Faroe Islands and Iceland. If applied to the above-mentioned 
products, the immediate losses for both Icela nd and Faroe would theo retically be above 
30 mio€ annually before they find alternative markets. Both countries, but especially 
Iceland, have an economy highl y dependent from the fishing sector and therefore it can 
 
27 be expected that the ban on imports will  produce an immediate reaction from the 
authorities of both countries, lobbied by the expo rt firms, to make all possible efforts to 
revert to the availability of the EU market , even if this is done  at the expenses of 
abandoning the current high catching behaviour , which by the way they should recognize 
as non-sustainable. 
In terms of effects on the mackerel stock, it is plausible to assume that the situation 
would revert to the situation foreseen in the desirable scenario, i.e. an immediate 
agreement for 2012 and successive years. Howeve r, to be more realistic, one may also 
suppose that there would be a lag of two year s before the effects are noticed, because the 
implementation of this option would still re quire the completion of the decision-taking 
process for the required legislation. The si mulation for this exercise would be done 
therefore assuming that the agreement woul d take effect only for 2013 and successive 
years.  
Environmental effects:  
The results in terms of SSB, yields and F will be, compared to the desirable scenario (the 
desired situation) described below. The result s of Option 1 are also included because they 
allow a better inter-option comparison.  
050010001500200025003000
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024
SSB (Opt 3)
SSB ( do)
SSB ( Opt  1)
 
The SSB would fall sharply the first two years,  as in option 1, but s oon will it recover, 
reaching the desired levels after six years more . The fishing mortality would revert to the 
target values as soon as the agreement is reached: 
 
 
28 0,0000,0500,1000,1500,2000,2500,3000,3500,400
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024Fishing mortality (F)F(Opt  3)
F(do)
F(Opt  1)
 
 
In all, this can be interpreted as a rapid re turn to "normality" for the fishing mortality and 
a progressive recovery of the SSB towards the desirable situati on. The fisheries would, 
from the agreement, revert to a status of su stainability and there w ould be in principle no 
reason for any of them to lose the MSC or any other certification based on the FAO 
standards. The advantages of this  option over Option 1 are evident. 
Economic effects:  
The EU catches forecasted under this mode l would be, compared to the desirable 
scenario and with Option 1: 
05010 015 0200250300350400450
2011 201 2 201 3 2014 2015 201 6 201 7 2018 201 9 2020 2021 2022 2023 2024EU catchEU(Opt 3)
EU(do)
EU(Opt 1)
 
It can be seen that the EU catch would progre ssively recover to reach the "desired" levels 
6 years after the first agreement entered into force. It should be noted that the longer it 
takes for Option 3 to be implemented, the mo re difficult the recovery would be, as a 
consequence of the "erosion" of the st ock during the years of disagreement. 
In economic terms  
 
29 Although slightly below the desirable scen ario, this option yi elds substantially 
improvement with respect to Option 1 in te rms of catch. The net effects observed can be 
summarised as follows: 
(1) Option 3 would imply making some sacrific es in the short term in terms of 
reduced catch during three consecutive ye ars, but from the fourth year on the 
yearly catches would be c onsistently higher than for Option 1 and from the eight 
year the long-term gains would have b een consolidated at about 300 000t, 16% 
above the long-term catch expected under Option 1 .  
(2) This increase in long term yield is tra duced in economic benefits for the catching 
sector . In absolute figures these can be evaluated as 40mio€per year. Although the 
short term losses, together with the import ban, may create difficulties to the processing sector, the increased production in the EU could help in providing raw 
material for the fish processing industry .  
(3) The fact of agreeing a joint management re gime would be sufficient, even if the 
stock is not yet fully rebuilt to its maximu m productivity level, to satisfy the eco-
labelling requirements of the MSC, and therefore the eco-label certification could 
be maintained .  
(4) Following the same reasoning as for Option 1, the net gains in yield may 
underestimate the effects on economic produc tivity, because the increased yields 
would be taken at lower fishing rate s, which entails lower production costs  and 
hence an additional multiplier of the economic gain. 
(5) An important element of this option is that it provides with a rather high stability 
in catches , which is a good think to plan i nvestments in the fishing industry. 
Social effects:  
The best that can be said of this option is that none of the undesired effects of Option 1 
are to be expected. On the contrary, this op tion would re-establish confidence in fisheries 
managers, would improve the economic performance of the pelagic fishing sector and one could expect better yields by vessel  and hence better revenues for crews. 
Administrative costs
 
Option 3 would be onerous in terms of admi nistrative burden. It would require 1) new 
legislation (co-decision regula tion, plus implementing acts); 2) increased surveillance at 
customs and 3) legislation terminating th e ban whenever it has produced the desired 
effects. Traceability requirements will also increase administrative burden in the exporting countries (analysis of samp les and production of certificates). 
The summary results are (rounded to the nearest 500€): – Administrative burden for business: 19 000€ 
– Administrative burden for public authorities: 13 500€ 
Main drawbacks
 
The problem associated with fishmeal, fish oil,  fish feed and other pr oducts for industrial 
uses is that there is no way to determine whether these were elaborated from mackerel. 
 
30 The current rules in the EU lead to the obligat ion to ensure that fish feed for aquaculture 
is not made up with fish meal or oil made fr om the same species that is to be fed. That 
may allow importers of fish feed to determin e whether a product within this category has 
been made up with salmon, trout, bass, sea br eam and other farmed species or trimmings 
from those, but not from mackerel sin ce there is no farming of this species. 
Banning imports of fishmeal a nd elaborated products origin ated from or containing 
mackerel in its composition necessitates therefore establishing new traceability 
requirements to determine the species com position of these products . These requirements 
should be incorporated in the legal instrument.   
Option 4: Regulatory instrument allowing  to partially prohibit trade on fishery 
products from the stock in question  
Description of the option:  
This option is essentially the same as Option 3 but where the import ban would only 
concern easily identifiable fish products that  do not necessitate any special additional 
traceability or labelling provi sion. The main idea behind this  option is that any possible 
loss of impact of the import prohibition would be compensated by the very few 
additional administrative burden that it mi ght produce, since this burden would be 
limited to the legislative aspect (which would be considerably simplified) and to the 
additional checking effort that would appear at  customs, that in any case would be much 
lower than in the case of option 3. In our  study case on mackerel , the import ban would 
then be limited to the following pr oducts of Atlantic mackerel ( Scomber scombrus ): fresh 
or frozen round fish, flaps, fillets an d canned and smoked Atlantic mackerel 
Environmental effects:  
Given the limitations of this option (it woul d exclude the high volumes  of fish meal and 
oil), it is thought that the dete rrent effect would be much sm aller than in the case of 
Option 3. Again, one cannot predict the respon se by Iceland and Faroe islands to an 
import ban of this nature, but we can imagin e that the export companies affected would 
also lobby the authorities of these countries and later rath er than sooner these would 
reconsider their position vis-à- vis the other Coastal States. 
A reasonable assumption for the purpose of this exercise is that the said authorities will 
not feel in a hurry to achiev e an agreement and therefore, this would only be obtained 
two years after the import ban was put in plac e, i.e., the first agreed TAC would apply in 
2014. 
The forecasted effects on the spawning stock bi omass and on F would hence be as shown 
in the graphs below: 
 
31 0,0000,0500,1000,1500,2000,2500,3000,3500,400
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024Fishing mortality (F)F(Opt 4)
F(do)
F(Opt 1 )
 
Fishing mortality remains high (as in Option 1)  until the year of the first agreement, 
where it adopts the target le vel of F=0.22, and keeps this value all through the period. 
050010001500200025003000
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024SSB ('000t)SSB(Opt 4)
SSB(do)
SSB(Opt 1 )
 
As one could anticipate, recovery of the SSB towards the long-term desired levels 
(2.4miot) takes its time (5-6 years after the agreement). The "alert" level of 2.2miot is 
however never reached.  
Economic effects:  
The following graph shows the catch forecasted, compared to Option 1 and to the 
desirable scenario: 
 
32 050100150200250300350400450
2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024EU catchEU(Opt 4)
EU catch (do)
EU(Opt 1 )
 
The situation is very similar to the one obs erved for Option 3, but with one-year lag and 
with a more difficult recovery, as anticipa ted due to the late reaction to achieve an 
agreement. Once more, this responds to the principle that overfis hing one year will 
require disproportionately large sacrifices later on to rebuild  sustainability of the system. 
This being said, there is no doubt that th is option produces the desired effect of 
restabilising the fishery without appreciab le environmental risks once the import ban 
achieves its deterrent goal. 
Social effects:  
Same comments as above: si milar to Option 3, attenuated 
Administrative costs  
Option 4 would entail a considerable improveme nt with respect to Option 3 in terms of 
administrative burden. It would in any case require 1) new legisl ation (co-decision 
regulation, plus implementing acts), but presum ably much simpler than in the case of 
Option 3, since there would be no imperatives on traceability; 2) increased surveillance at 
customs (but again mitigated since it would be just a few products concerned) and 3) 
legislation terminating the ban whenever it has produced the desired effects.  
The estimates of administrative burden can be summarized as follows: – Administrative burden for business: 4 500€ 
– Administrative burden for public authorities: 3 500€ 
Main drawbacks/other comments
 
The problem associated with this option is that its dissuasive power is weakened with 
respect to Option 3, and a dela y in achieving an agreement results in reduced catch 
opportunities in the following years.  
Option 5: Regulatory instrument allowing to adopt counter-measures  
Description of the option:  
 
33 This would consist of a regulatory inst rument providing for "counter-measures" in 
response to an "internationally wrongful act " committed by another State. Recourse to 
such "counter-measures" is recognised under cu stomary international law provided that 
due process and proportionality  requirements are met. "Counter-measures" could consist 
of trade-restrictive measures, limitations of access to ports and/or of any other measures 
that are capable of inducing the offending State to discontinue its wrongful conduct. 
They are justified if: 
– Taken in response to a wrongful act; 
– Taken after the offending State have been requested to abandon the wrongful conduct 
– They aim at inducing the offending States to take remedial action 
– Their effects are proportional to the effects of the wrongful conduct 
– They are reversible and actually lifted once the offending State has taken remedial 
action 
The nature of the measures to be taken may include impo rt prohibitions, but is not 
limited to those. Other possible measures are the suspension of bilateral agreements and the prohibition of access to ports. It should be  noted that the import prohibitions do not 
strictly need to apply to th e species subject to dispute, but may include other goods. What 
is more important in designing the appropriate set of measures is, in first place, that the 
EU should unambiguously establis h the existence of the wrongful  act on the side of the 
offending State. Ensuring proportionality of the measure is the second most important 
aspect to consider. 
In the case of the mackerel, the most clear argument to establish that Iceland and Faroe 
Islands acted wrongfully is that in fixing their autonomous TACs at such high levels, 
these countries have breached the principle of "due regard" to the rights and duties of 
other States, since i) the magnitude of th eir TACs is completely out of proportion 
compared to existing fishing patterns ii) no sc ientific or objective ar gument has been put 
in support of these quantities an d iii) the long-term losses fo r the EU fishing industry are 
very important (see assessment of Option 1). 
What is more difficult, although not impossi ble, is to establish the proportionality 
condition. In the case of mackerel, if the loss es for the EU fleet ar e evaluated in roughly 
40mio€/year, for the counter-measures to be  effective and proportional, they should 
produce losses in Iceland and Fa roe Islands of the same order of magnitude, but larger, in 
order to have the necessary inducing effect. 
It is not the purpose of this IA to determine exactly the na ture of the counter-measures 
but just to show that there is room to appl y them and means to design them. In the case of 
mackerel such a possibility exists, alt hough not free from controversy and requiring 
careful study. Fields of measures could in principle include  i) access to ports and services 
to fishing vessels, ii) import prohibition of mackerel and other similar species and iii) 
termination, suspension or not impr ovement of bilateral agreements. 
Environmental economic and social effects:
 
Since the scope of counter-meas ures extends beyond the meas ures under Options 2 to 4, 
it is reasonable to assume that they would be as effective as, if not more than, the measures under those options. The environmen tal assessment would yield at least the 
same results as for Option 3, and the same would apply for the economic and social aspects. It would be important to look carefully after the interests of the industrial sectors 
that would be affected on the side of the EU . For example, if the prohibition to import 
 
34 mackerel has little effect on the EU pro cessing industry because the EU production could 
easily fill the gap produced, this  would not be necessarily the case for other species that 
would be included in the import prohibition. Th e termination or suspension of bilateral 
agreements may have an important effect also on the EU side33. 
Administrative burden  
As far as this aspect is concerned, the ad ministrative burden would be even higher than 
for Option 3: on the one hand, it would cover more prohib itions and therefore more 
monitoring effort. The need of a careful anal ysis and selection of the most appropriate 
measures will therefore add weight to the administrative burden for both public 
authorities and the industry. 
In this calculation, applicable to the mackerel case, we can a ssume that, in addition to the 
prohibition of Option 3, there would be a prohibition of access to ports and services that 
would generate administrative costs. The suspension or non-re newal of certain aspects of 
the bi-lateral agreements are taken as not generating additiona l administrative costs, since 
that is to be done in the c ontext of the regular exchanges foreseen in the agreements. 
The estimates of administrative burden can be summarized as follows: – Administrative burden for business19 000€ 
– Administrative burden for public authorities: 19 000€ 
6. S
ECTION 6: COMPARING THE OPTIONS  
In first place, it appears c onvenient to summarize the anal ysis made in Section 6: 
The options were given in the form of a list but in reality they respond to an organised 
scheme allowing to respond to the following questions: 
a) Is it confirmed that EU actio n would have an added value? Is it justified that action 
be taken by the EU?. This may be res ponded by examination of Option 1 against the 
desirable scenario: how bad would the situation would be  if the dispute and the 
behaviour of the non-cooperati ng countries is maintained? Or, can the EU remain 
idle? 
b) If it is confirmed that action should be taken, then can this action be of non-
legislative nature?. Analysis of the likely  effects Option 2 would help to respond to 
this question 
c) If the answer is that legal action should be  taken, then what type of measure should 
be taken? The answer would be a resu lt of the comparative advantages and 
disadvantages of options 3, 4 and 5. 
                                                 
33  As an example, the exchange of fishing opportunities between the EU and the Faroe Islands foreseen 
in the bilateral fisheries agreement has not taken place for 2011, as a conseq uence of the mackerel 
dispute. While this has important consequences for the Faroese fishing sector, many EU fleets are on 
their side suffering a loss of opportunities to fish in Faroese waters. 
 
35 The following analysis will then follow the above-mentioned sequence of questions. 
Question a): Is it justified that the EU should act?  
The environmental, economic and social consequences of letting the current situation to 
perpetuate are in the study case of mackerel, if not disastrous, at least very severe. In 
environmental terms, sustainability would be  very seriously threatened: the high risk 
(>21%) of falling below the limit value of 1.7mi ot (which might lead to a closure of the 
fishery) would mean a very high probability (almost a certainty) that that event would occur once every five years. This, added to  the long-term losses in yield for the EU 
pelagic sector, make the no-action option abso lutely unbearable. Other arguments exist, 
but the environmental and economic argumen ts (especially the known case of blue 
whiting) more than sufficient for an affirmative response to this question
. The fact that at 
present the mackerel fishery is the most  important for the EU in economic terms 
reinforces this assessment. Not acting in the m ackerel case will be seen as disinterest of 
the EU institutions with regard to conservati on of fish stocks and defence of the interests 
EU fishing industry. 
Question b): legislative or  non-legislative action?  
The analysis of Option 2 is admittedly ra ther speculative and centred on eco-labelling 
schemes and information to consumers. It  does not cover other non-legislative action 
taken by the industry such as blocking access to  Faroese vessels to EU ports since we 
need to examine institutional action by the EU  or action by private organizations that 
could be promoted by EU institutions. EU action promoting blockage of access to ports by foreign vessels it is not conceivable if these are legally entitled to  accede to EU ports. 
The analysis done concerns the particular case of mackerel, for which at present there is a 
generalised MSC certification of EU fisheries, whilst it is very unlikely that Iceland and 
Faroe Islands could obtain such a certification.  The situation is ideal in this sense except 
for the fact that most mackerel consumer s would be guided for price, quality and 
freshness rather than by a eco-lab el. It is possible that for ot her products the promotion of 
eco-labels and extended information to cons umers would have a larger influence in 
market demand, but yet this need s to be translated into pressure on the fishing industry of 
the non-cooperating country. 
An important element of judgement is the weak support given by the fishing sector to 
this option, even when they are curr ently users of eco-labelling schemes. 
In general terms, it can be concluded that , while non-legislative action may potentially 
help in some cases, the option to take decisi ve legal action is highly preferable in most 
cases. Even if it were preferable in few cases, this would justify the adoption of the 
necessary legal mechanism so the action coul d really be implemented in such few cases . 
Question c) what type of legal action?  
While the response to the first two questions wa s rather straightforwar d, to respond to the 
third question becomes trickier. It is appropr iate to synthesize the assessments made in 
the previous section. The tabl e below includes a ranking of the options for each topic 
 Option 3 Option 4 Option 5 
Environmental, 
economic and social 
effects • Very rapid recovery 
to desired levels 
• No risks of • As Option 3, but 
effect perhaps 
delayed • As Option 3, perhaps 
in a more effective 
manner 
 
36 depletion(*) 
• MSC certification 
maintained 
•  Improved 
confidence in 
managers 
• Improved wages 
after recovery 
• Better prices for 
consumers 
•   
 
  
 
  
 
  
 
RANK: 
1 2 1 
Heavy: very detailed legislation (traceability), monitoring of many 
products Light: simpler 
legislation, less products to monitor Heavier than for Option 
1: more detailed range of measures; 
controversial legislation, 
complex monitoring Administrative burden   
 
 RANK 
2 1 3 
• Difficulties related 
to determination of products containing 
the species 
• Prove of respect of 
proportionality and 
equity of measures • No major 
difficulties. Easier to prove respect of 
proportionality and 
equity • As for Option 3, but 
more complex set of measures faces more 
complex difficulties 
of compatibility with law.  Main drawbacks   
 
  
 
RANK 
2 1 3 
(*) In the study case of mackerel, of SSB falling below the limit value of 1.7miot 
The environmental, economic and social eff ects are very closely interlinked and very 
similar to the three options; the only differe nce is that it is expected Option 4 may 
produce effects a given time later, since the m easures adopted are not as stringent as in 
options 3 and 5. The lesser effectiveness of  Option 4 is however compensated by a much 
easier application both in term s of drafting of legi slation and of actual enforcement. The 
cumulated rankings (5, 4, 7) does not give dramatic results allowing either to select or 
deselect one or another option. 
It is moreover difficult to generalize the analys is made above for mack erel to other future 
cases. There could be situations where Optio n 3 is not applicable since all imported 
goods made from the species in question are elaborated and transformed into industrial 
products. In other cases, trade measures woul d be inapplicable (for example, if the 
species in question is not subject to trade) but there is scope to adopt counter-measures 
for which an effective EU legal mechanism is lacking. 
With this in mind, one is tempted to conc lude that the best option would be one 
sufficiently flexible to absorb the main adva ntages of the 3 options  above and capable to 
minimize their drawbacks and administrative co sts. A possible description of that option 
would be an EU legal instrument with the following characteristics: 
a. Primarily based on Article 207 TFEU; ot her basis are also conceivable if 
measures envisaged are not trade-related 
b. Describing its field of application as for this exercise: situations of lack of 
cooperation in fisheries management and adopting measures that go far against 
common international sharing practi ce and threaten sustainability. 
 
37 c. Establishing a list of possible measures to apply, from trade restrictions to 
counter-measures of diverse nature. 
d. Setting out the main principles and cr iteria upon which these measures should 
apply: effectiveness, proportionality, equity, compatibility with law, etc; 
e. Giving the Commission implem enting powers to apply the appropriate measures 
to the appropriate solution, in accordance with the above-mentioned criteria; 
f. Specifying the type of impact assessment  that should precede the exertion of the 
above-mentioned powers; 
g. Setting out the specific mechanisms for c ontrol by Member States in accordance 
with the new Comitology Regulation34  
h. Establishing clear rules for the automa tic or very rapid suspension of the 
measures when the non-cooperating Stat e has adopted appropriate corrective 
measures; 
i. The Commission would also be authorised to create, where necessary, new 
monitoring mechanisms whenever the existing ones would be insufficient. 
The field of application shoul d clearly exclude the cases co vered by the IUU legislation 
and by other instruments. The list of meas ures should be sufficiently ambiguous so it 
would not exclude newly conceived effectiv e and uncontroversial measures whenever 
these arise. The principles a nd criteria under d) should inst ead be very strict so the 
margin of manoeuvre for the Commission is unambiguously established. 
This solution should be designed to a llow a rapid adoption by the Commission of 
measures inducing a change in behaviour of  the non-cooperating countries as conceived 
under Options 3 to 5, according to th e specific cases that would arise. 
7. SECTION 7: MONITORING AND EVALUATION  
The objective of the whole exercise (see section 3) is to contribute to the conservation of 
fish resources and to bring them to levels  that can produce maxi mum sustainable yield. 
The indicators commonly used to monitor th e status of fish resources are the spawning 
stock biomass (SSB), i.e., the amount of fi sh that is ready to spawn at the time of 
spawning and the fishing mortality (F), which indicate the rate at which fish is removed 
from the stock by the fishing activity. Other indicators exist that complement these and 
that illustrate the extent to which fishing activ ities do not just have an effect on the stocks 
targeted, but also on other fi sh or marine organisms that are incidentally captured or 
damaged. 
                                                 
34  Regulation (EU) No 182/211,  
http://eur-
lex.europa.eu/Result.do?arg0=modalit%C3%A9s+d e+contr%C3%B4le+par+les+Etats+membres&arg
1=comp%C3%A9tences+d%27%C3%A9xecution& arg2=&titre=titre&chlang=fr&RechType=RECH_
mot&Submit=Rechercher  
 
 
38 At present there is a highly sophisticated system designe d to guarantee a timely and 
scientifically-based monitoring. The system in cludes the collection of data on the fishing 
activity, sampling and collecti on of biological data, scien tific surveys at sea using 
research vessels and a framework for the intern ational collaboration of  fisheries scientists 
allowing to collate and exch ange data and information, c onducted fish stock assessments 
and provide scientific advice for fisheries management. In the case of the North-east 
Atlantic, most of these activities are coor dinated by the International Council for the 
Exploration of the Sea (ICES, see footnote No  20). Similar bodies exist for other fishing 
areas of EU fishing interest. 
The current framework for the collection of data for scientific analysis35 and the mandate 
of the Scientific and Technical Committee for Fisheries also provide a routine basis for 
the production of economic data  useful to monitor the pe rformance of the intended 
measure by indicators such as economic yi elds, turnover of EU fleets and their 
dependence from one or another fish stock. Follow-up of imports is also routine work. 
There is no reason therefore, for the time bei ng, to create new systems or reinforce any of 
the existing systems to monitor the state of fish resources. 
8. ANNEXES  
Annex I: analysis of the replies to the consultation 
Annex II: description of the problems on WHB and MAC 
Annex III: spreadsheets on the asse ssment of administrative burden 
Annex IV: list of acronyms 
 
                                                 
35  Council Regulation (EC) No 199/2008  of 25 February 2008 concerning the establishment of a 
Community framework for the collection, management and use of data in the fisheries sector and 
support for scientific advice regarding the Common Fisheries Policy 
 
39  Annex I 
Analysis of replies to the consultation 
 
Analysis of the replies to the consulta tion launched 22 March 2011 on the basis of 
the consultation document " Impact Assess ment on the possible utilisation by the 
EU of trade-related measures against non- cooperating States for the purpose of 
conservation of fish resources" 
1. TECHNICAL DETAILS  
Rather than an open public consultation, a ta rgeted one was chosen. This is mainly 
due to the highly specialised fields of wo rk associated to the dossier: management 
of straddling and highly migratory stocks a nd international trade rules, on which the 
awareness of the wide public is supposed to be very low. The target groups were 
those represented in the main consultati on bodies for the common fisheries policy: 
the Advisory Committee for Fisheries and Aquaculture (ACFA), the seven Regional 
Advisory Councils (RACs), and the authorities of Member States. 
The Advisory Committee on Fisheries and Aquaculture (ACFA) provides a forum 
for ongoing dialogue with the industry. Its 21 members represent the main branches 
of the industry – production, processing and trade, in bot h fisheries and aquaculture 
as well as consumer groups and organisati ons dealing with environmental protection 
and development. 
ACFA operates through four wo rking groups, which deal with: 
•  fisheries resources and management 
•  aquaculture •  markets and trade policy •  general questions, including economi cs and the condition of the sector. 
The Regional Advisory Councils (RACs) were  created as part of the 2002 reform of 
the Common Fisheries Policy. They were established to give stakeholders (fishermen, vessel owners, processors, trad ers, fish farmers, women’s fisheries 
groups, environmental and consumer orga nisations and others) a vehicle through 
which to feed recommendations into CFP policy developments. RACs must include 
stakeholders from at least two Member St ates. They each have a general assembly 
and an executive committee. The fisher ies sector has two thirds of the 
representatives on each body, and other inte rests one third. In addition to five 
geographical RACs, two others have been established for pelagic stocks and the 
high seas fleet. 
• Baltic Sea RAC  
• Long Distance RAC  • Mediterranean Sea RAC  • North Sea RAC  • North-western waters RAC  • Pelagic stocks RAC  • South-western waters RAC 
 
40 The consultation was opened 22 March 2011 and the last contri bution was received 
and accepted on 30 May 2011, which makes th e whole consultation period close to 
10 weeks. A consultation document (copied in the appendix to this annex)) was 
distributed to the target gr oups. It contained an explana tion of the basic problem, a 
brief analysis of the possible approaches  and several closed and open questions 
allowing a complete feed-back. The Commission's minimum standards for 
consultation36 have been fully met and the Guidelines on organisation of stakeholder 
consultation in DG MARE37 have been followed. The Commission had the 
opportunity to present and e xplain the consultation documen t to the two RACs more 
directly affected by the problem: the LD RAC and the PELRAC during the meetings 
of the Executive Committees of these RACs. 
2. REPLIES RECEIVED  
Very few replies were received within the deadline foreseen in the consultation (10 
May). By 17 May the RACs most direc tly concerned (PELRAC and LDRAC) and 
several organizations constituting these RACs  have already sent their contribution. 
In view of having as many replies from Member States as possible, a reminder was sent 17 May to those having failed to reply by that date. The latest contribution was 
received and admitted for this analysis by 30 May.  
The following is a summary of the contributions received: Target population: Member States:
 
 AT DE DK EE EL ES FR HU IE IT MT NL LT PO PT SI UK 
Date 
18/05 20/05 30/05 23/05 20/05 
10/05 
16/05 
18/05 
13/05 
30/05 
25/05 
18/05 20/05 
16/05 
3/05 
5/05 
19/05  
It should be noted that this list includes  all Member States directly affected by the 
mackerel dispute. 
Target population: st akeholders (RACs):  
– PELRAC (Pelagic RAC):  reply se nt 11/05, but many organizations 
belonging to this RAC also  sent their individual contributions (see below) 
– LDRAC (Long-Distance RAC): its repl y was sent 10/05 but it consisted of 
four contributions by four organizations belonging to this RAC. 
– BSRAC (Baltic Sea RAC): reply sent  16 May but not responding to the 
consultation paper; it gave just a general support to the Commission in 
                                                 
36  Towards a reinforced culture of consultation and dialogue – General principles and minimum 
standards for consultation of interested parties by the Commission. 
37  Note to Directors – Adonis No D 00166 of 6.01.2010 
 
41 seeking to find a solution in dealing w ith third countries that do not live up 
to management issues, consistent with the legal framework in place. 
The no participation by other RACs can be e xplained by the fact that it is just the 
above-mentioned ones that are directly a ffected by disputes like the one existing 
now with Iceland and Faro e Islands on mackerel. 
Target population: st akeholders: (ACFA) : One of the organizations (AIPCE-CEP) 
mentioned in its reply that it was to be considered in the ACFA position. However, there was no contribution from ACFA as collective entity. It is possible that some of the individual stakeholders organizations are represented both in ACFA and in the 
RACs, but it was not possible to attribute their reply to  one or another committee. 
Target population: stakeholders. Indivi dual replies by Organizations and date
: 
– NPWG/EAPO (European Association of  Fish Producers Organisations, 
member of  PELRAC): 9/05 
– SPFA (Scottish Pelagic Fishermen's A ssociation, member of PELRAC): 
10/05 
– KFO (Killybegs Fishermen's Organi sation Ld., member of PELRAC): 
10/05 
– NFFO (National Federation of Fishermen's Organisations, member of 
PELRAC) 
– FEABP (Federación de España de Armadores de Buques de Pesca, 
member of LDRAC): 10/05 
– FEOPE (Federación Española de Orga nizaciones Pesqueras, member of 
LDRAC): 10/05 
– ADAPI (Associação dos Armadores de  Pesca Industrial, member of 
LDRAC): 10/05 
– ARVI (Cooperativa de Armadores de Pe sca del Puerto de Vigo, member of 
LDRAC): 10/05 
– AIPCE-CEP (EU Fish Processors Asso ciation, CEP stands for the EU 
Federation of National Orga nisations of Importers and Exporters of Fish): 
6/05 
– Klondyke FPO (Klondyke Fish Pr oducers Organization): 10/05 
– RSPB Scotland (Royal Society for the Pr otection of Birds, Scotland): 9/05 
Some of the entities consulted did not re ply specifically to the questions of the 
consultation document but gave just a ge neral supportive reply (EE, LT, BSRAC). 
The catching sector was clearly predominan t among the respondents to the consultation. 
The processing industry and the environmen tal NGOs were represented only by one 
organization (AIPCE-CEP and RSPB, respectiv ely). No contributi ons were received by 
the other sectors represented in these commi ttees, such as consumers, fish farmers, 
 
42 traders, etc. In any case, it must be said that  these sectors are only partially or secondarily 
affected by situations like the mackerel dispute. 
Anecdotally, a contribution was received by an individual that in the past was intimately 
associated to the export industry and now is  retired and does not represent any of the 
target groups. His contribution wa s not included in this analysis. 
General comments: 
There is a clear general support for the wa y the problem is perceived and for the 
establishment of trade restrictions. The only exception to this general support came from 
the processing industry (AIPCE-CEP ), a sector that does not wa nt to see their sources of 
raw material restricted in any way. Among the options chosen, the we ight of the opinion 
falls mostly in favour of options 3 (regul atory instrument banning all products) and 5 
(countermeasures). Option 2 (the soft instru ment) received a modera tely enthusiastic 
support by Member States and a clear rejec tion by most stakeholders. Both Member 
States and stakeholders were  clearly in favour of assu ming the possible short-term 
negative implications of an import ban in fa vour of long-term sustainability. As regards 
whether imports should be understood to cover transhipping, there is again clear support, 
especially by stakeholders. Administrative burden associated to a trade ban is not 
perceived as a problem, either for it being relatively small of  because it is fully justified 
as largely outweighed by the possible negative  consequences of no action under a risk of 
overfishing.  
3. MAIN RESULTS OF THE CONSULTATION : 
The main result and conclusions can be summarized as follows: 
1. Representativeness of the replies received . Generally speaking, the replies 
received represented the main groups of stakeholders potentially affected by the 
problem. All Member States having fisher ies of mackerel, blue whiting and other 
Atlantic species for wh ich there is a potential or real problem of non-
collaborating third-counties responded to the consultation. The industry was 
particularly well represented as far as th e catching sector is concerned, but only a 
contribution was received from the pr ocessing industry. Environmental NGOs 
sent only one contribution. 
2. Perception of the problem . Member States fully agreed (47%), mostly agreed 
(47%) or just partially agreed (6%) wi th the perception of the problem as 
described in the consultation paper (essentially, the same description as in this report, see section 3 below). The other stakeholders also showed high support: 
75% fully agreed and 25% mostly agr eed. Comments received point to the 
specific gravity of some elements of the problem (other countries and fish 
species) and to expression of mistrust a bout the Commission's will or capacity to 
react appropriately. 
3. Importance of the problem
. Only one Member State (7 %) perceived the problem 
as of moderate importance; the others felt that the importance was very severe 
(40%) or severe (53%).  Among the other stakeholders, only one (precisely that 
representing the processing industry) consider ed a moderate importance (8%); the 
remainder felt the importance as very se vere (84%) or severe  (one opinion-8%). 
The comments received outlined the possible outcomes of the mackerel problem, 
 
43 the particular economic im portance of the mackerel fishery and the need to 
consider the gravity of the social  consequences of the problem. 
4. Need to act . 67% of Member States fully agreed and 33% mostly agreed on the 
need to act. The opinion of the other stak eholders was fully consistent with the 
opinion given on the importance of the pr oblem: 84% fully agreed, 8% mostly 
agreed and 8% just partially agreed on the need to act. Comments qualified the 
action required as swift (preferably before  the 2011 fishing season) and subject to 
Member States consultation. The proce ssing industry was not convinced on the 
need to act since voluntary approaches by the purchasers and consumers could be 
enough. 
5. Possible approaches . The consultation document gave an analysis of the possible 
approaches to use trade measures in or der to stimulate good fishery management 
behaviour, by going through the existing le gislation, mainly the IUU Regulation, 
the international framework for fisher ies and trade governance and the use of 
trade measures by RFMOs. Among Member States, 47% fully agreed, 33% mostly agreed and 20% just partially agr eed with the analysis. The opinions of the 
other stakeholders were more dispersed:  only one organization 8% fully agreed, 
67% mostly agreed, 8% par tially agreed and 17% did not  agree at all. Comments 
from Member States referred to the need  to analyse settlement procedures under 
UNCLOS and perhaps amend the IUU regula tion. Most stakeholders referred to 
independent legal advice pointing to the a pplicability of the IUU regulation in the 
case of mackerel; others (those disagreei ng with the analysis) stated that the 
international framework is either us eless or can just be disregarded. 
6. Trade restrictions as a solution
. The consultation paper sought confirmation about 
the use of trade measures as a possible solution to problems like those described 
for mackerel and blue whiting. Member St ates were divided: 21% fully agreed, 
43% mostly agreed, 29% partially agreed  and one Member State (7%) barely 
agreed. The other stakeholders were mo re conclusive: 75% fully agreed, 17% 
mostly agreed and only 8% (one organizati on: the processing i ndustry) just barely 
agreed. Observations were made on the n eed to approach the problem overfishing 
more globally while not abandoning other ro utes to push for negotiated solutions. 
7. Analysis of possible options : 
Option 1: no action. 
Among Member States, 20% considered it  just as a last resort, while 80% 
judged it as ineffective. All other stakeholders (100%) considered it 
ineffective. 
Option 2: a soft instrument , non-legislative, such as sust ainability labels, "name and 
shame" exercises, diplomatic demarches and so on. 
Member States believed this option coul d be more or less effective (64%), 
only a last resort (29%) or ineffective (7%). The other stakeholders were more 
conclusive in that all organizations but  one (91%) considered this option as 
ineffective and only one (9%) as more or less effective. 
Option 3: regulatory instrument addressing imports of all products originated in the 
country concerned and made from the species subject to dispute. 
 
44 This option received most support from Member States: 43% considered it as 
effective and 57% as more or less effec tive. The other stakeholders expressed 
also a clear support, consid ering it effective (64%) or  more or less effective 
(36%).  
Option 4: more limited regulatory instrument , including only easily identifiable fish 
products. 
Member States found this option as eff ective (14%), more or less effective 
(72%) or as a last resort (14%). Th e other stakeholders showed weaker 
support, considering it as more or less e ffective (22%), a last  resort (56%) or 
ineffective (22%). 
Option 5: regulatory instrument  providing for countermeasures , of very diverse 
nature, inducing the offending State to  discontinue its wrongful conduct. 
Member States found this option effec tive (36%), more or less effective 
(43%) or as a last resort 21%. The ot her stakeholders to ok this option as 
effective (80%), more or less effective (10%) or as a last resort (10%). 
Other options (ad libitum) 
Some Member States pointed to th e combined use of the options, the 
inclusion of all fish products (and not just the species in cause) in the trade 
restrictions and the ITLOS38 mechanism. The other st akeholders also pointed 
to the combined use of options and included the possibility to suspend the Iceland accession process, the measures that  are put in place in other countries 
such as the USA and the ba nning of imports of fishm eal irrespectively of its 
species composition. 
  
                                                
 
38  International Tribunal for the Law of the Sea  
 
45 Appendix to Annex I 
 
Consultation document including a summary of the replies received. 
Note: all texts in italics belong to the original consultation document 
 
 
CONSULTATION DOCUMENT  
Subject: Impact Assessment on the possible utilisation by the EU of trade-related 
measures against non-cooperating States fo r the purpose of conservation of fish 
resources 
Disclaimer: This paper has been prepared by Commission services to consult 
stakeholders on the above-mentioned issue. Its contents cannot be construed as reflecting 
or pre-empting the European Commission's definitive views or positions of the subject 
matters in issue. The European Commission cannot be held responsible for any use 
which might be made of the information contained therein. 
 
Target Groups consulted: 
- The Advisory Committee for Fisheries and Aquaculture (ACFA) 
- Regional Advisory Councils (RACs)  
- Member States' experts (through the Committee for Fisheries and Aquaculture) 
Expected replies: In written, by post to th e address European Commission, 1049 
Brussels, BELGIUM or by e-mail to: 
MARE-SHARED-STOCKS-CONSULTATIONS@ec.europa.eu  
 Deadline:  10 May 2011 
4. DESCRIPTION OF THE PROBLEM  
The UN Convention on the Law of the Sea39 as well as the UN Fish Stocks Agreement40 
provide for the obligation of coastal States and States fishing for such stocks on adjacent 
high seas to cooperate in managing respons ibly straddling and highly migratory fish 
stocks in order to ensure their long-term sustainability, either by  direct consultation 
                                                 
39  United Nations Convention on the Law of the Sea (Montego Bay Convention), OJ L 179, 23.6.1998, p. 
3. 
40  The United Nations Agreement for the Implementation of the Provisions of the United Nations 
Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and High ly Migratory Fish Stocks (in for ce as from 11 December 2001), OJ 
L 189, 3.7.1998, p. 17. 
 
46 amongst each other or via the appropria te Regional Fisheries Management 
Organizations (RFMOs) in th eir geographical context. 
Disagreement on the management of straddling and highly migratory stocks is frequent 
and to arrive at useful arrangements the willingness of all parties concerned to cooperate, is required, including the EU, and third countries. It is not infrequent that one 
or more of the third parties refuse to show the willingness to coopera te and prefer to fish 
at a unilaterally chosen inte nsity for a number of years. Such behaviour may lead to 
considerable depletion of th e fish stock in question even if other parties engage in 
moderating their fishing rates. 
The EU is now suffering the consequences of too long and unsuccessful consultations 
and negotiations both between the North-East  Atlantic coastal states and in the 
framework of the North-East Atlantic Fi sheries Commission (NEAFC ) before finally an 
arrangement was reached on the management of the North-East Atlantic stock of blue 
whiting. Due to a series of years of disagreemen t that led to very seri ous depletion of the 
stock and as a consequence, the Total Allowable Catch (TAC) for this species had to be set for 2011 at 40100t, less than  7% of the level of 2010 (54 0000t). This has resulted in 
disastrous consequences for the viability of this fish stock and therefore for certain EU 
fleets, and in a very meager probability of rebuil ding the stock to sustainable levels in the 
medium term. Such outcomes run contrary to  the fundamental objectives of the EU's 
Common Fisheries Policy. 
At present the EU faces such a problem with the stock of North-East Atlantic mackerel. 
In this case the lack of ag reement among coastal States, is  compounded by the setting by 
Iceland and Faroe Islands of autonomous catch limits at very high and biologically 
unviable levels, not sustained by any objective argum ent either on the basis of historical 
rights or stock distribution, and c ontrary to scie ntific advice. 
The EU cannot remain inactive in  a situation  where third countries refuse to abandon 
harmful unilateral behaviour and fail to s how the necessary goodwill to achieve an 
arrangement for the management of migrating fis h stocks (such as mackerel).  Indeed, in 
that situation to maintain the unlimited access to a lucrative EU market for such stocks constitutes not only a political contradiction but also a stimul us to continue the intensive 
over-exploitation of the stock by third countri es. The EU should theref ore be able to have 
an instrument to address th ese cases efficiently. 
As a summary, the problem is perceived at two levels: (i) A concrete problem… 
At present the EU faces the immediate th reat of overexploitation of the stock of 
mackerel due to the attitude of certain third States, which appear to exploit the 
short-term benefit for part of their fleet of pelagic fishing in total disregard of the international obligations to cooperate with the other coas tal States and the viability 
of the fish stock.  
(ii) …that raises a general problem 
It is possible that such a lack of coope ration and risk of overexploitation becomes 
evident in the short term for other shared stocks and other parties. Any such situation cannot be excluded in other area s where the EU shares fisheries with 
other States. 
 
47 When facing situations of unw illingness by any given third country to cooperate on the 
management of a straddling and highly migrat ory fish stock on which the EU shares an 
interest, and where the attitude of such country poses a risk of overfishing that would require subsequent sacrifices by all par ties engaged in rebuilding the stock to 
sustainable levels, there is a need to take appropriate action. However, the existing legal 
framework does not provide wi th any effective measure in  support of this approach, and 
it becomes imperative to find new avenues. 
Questions:
 
(1) Do you agree with this perception of the problem? 
Target population: Member States' authorities:  
 Fully Mostly Partially Barely Not at all 
 ES, IE, FR, 
PO, AT, UK, IT PT, SI, NL, 
HU, EL, DE, MT, DK    
 
Observations: 
ES: Iceland and Faroe are willing to get a place in the fishery that they didn't have 
historically. 
FR: The problem becomes aggravated by the suspension of quota exchanges under 
the bilateral agreements (Faroese case) a nd by the distortion of the international 
markets (competition for the Russian market). 
NL: The unilateral TACs by Iceland and Faro e Islands constitute a wrongful act, a 
violation of UNCLOS Articles  63 and 117-119 and in confli ct with Articles 2 and 
4(b) of the NEAFC Convention. 
EL: Lack of cooperation endange rs the viability of stocks. 
UK: It is vital that the blue whiting case is not repeated for mackerel DE: Russia's behaviour on blue whiting a nd redfish should be included in the 
analysis 
DK: Agree that continued setting of unilateral quotas is unsustainable. All 
possibilities for reaching a negotiate d agreement must be exhausted 
Target population: stakeholders:
 
 Fully Mostly Partially Barely Not at all 
 Klondyke, 
EAPO, 
SPFA, RSPB, KFO, FEABP, ARVI, AIPCE, 
FEOPE, 
ADAPI    
 
48 NFFO, 
PELRAC 
 
Observations: 
FEOPE: The problem is also the the EU de legation in negotiations is ill prepared 
and ha snot consulted duly the opinion of the fishing sector. 
NFFO: The EU appears to be looking for delayed mechanisms rather than taking 
action, which is possible now accordi ng to legal analysis available. 
PELRAC: Action in the short term should also be undertak en with priority without 
compromising the interests of the EU pelagic fishing fleet. 
What is your perception of the importance of the problem? 
Target population: Member States' authorities:  
 Very severe Severe Moderate Appreciable Insignificant
 PT, IE, FR, 
PO, AT, UK SI, ES, NL, 
EL, DE, MT, IT, DK HU   
 
Observations: 
ES: In the case of mackerel, the risk is not imminent since the stock is good shape. 
IE: The current behaviour of certain Coastal States will ultimately lead to the 
depletion of stocks to the de triment of all Coastal States. 
NL: The threat to sustainability is conf irmed by scientific pr ojections that point 
towards depletion of the stock of macker el (limit reference point reached) by 2016. 
EL: In particular since there is a documented  risk for the stock to fall outside safe 
biological limits. 
UK: Scientific projections point to a rapi d decline if the situation is maintained. 
Action should be taken therefore sooner than later. 
Target population: stakeholders:  
 Very severe Severe Moderate Appreciable Insignificant
 Klondyke, 
EAPO, SPFA, RSPB, KFO, FEABP, FEOPE, ADAPI, NFFO, PELRAC ARVI AIPCE   
 
49  
RSPB is particularly concerned that th e MSC certification can be lost and that 
mackerel, of high value for human consumption, be converted into fishmeal. 
FEOPE: the socio-economic effects are always ignored. ADAPI: It's about time that the EU addresse s unsustainable fishi ng practices by our 
neighbours in order to avoi d disloyal concurrence. 
PELRAC: Mackerel is th e single most valuable stock for the EU fishing industry. This in 
itself illustrates the importance of the problem. 
Do you agree on the need to take action? 
Target population: Member States' authorities:
 
 Fully Mostly Partially Barely Not at all 
 PT, ES, IE, 
FR, PO, AT, NL, UK, DE, IT SI, HU, EL, 
MT, DK    
 
Observations: 
IE: Strong action needs to be taken as a matter of urgency NL: Time to act swiftly: it would be outra geous to meet the current demands of 
Iceland and Faroe islands. 
UK: Mackerel is extremely important fo r the UK. Support for action that is 
proportionate and tailored to individual circumstances, subject to scrutiny, 
consultation and agreement with Member States. 
DK: Action must include all possibilities  of reaching a negotiated agreement. 
Target population: stakeholders:
 
 Fully Mostly Partially Barely Not at all 
 Klondyke, 
EAPO, SPFA, RSPB, KFO, FEABP, FEOPE, ADAPI, ARVI, 
NFFO, 
PELRAC FEABP AIPCE   
 
Observations: 
 
50 AIPCE: Not convinced that action is n eeded: voluntary action by purchasers and 
consumers would be enough. 
RSPB, NFFO, PELRAC: Furtherm ore, action should be expe dient, with a view to 
solve the problem as a matter of ur gency, before the 2011 fishing season. 
ADAPI: Better late than never. Action should be taken without regard to the 
international importance of the country concerned. 
5. POSSIBLE APPROACHES  
The present initiative aims at exploring the pos sibility of using trade-related measures 
against countries and products from stocks that are in situations such  as those described 
above for blue whiting and mackerel. These measures would mainly aim at promoting conservation of the stocks concerned by induc ing a reduction of the in tensity of fishing of 
the third parties concerned, this without prej udice to the need to co ntinue consultations 
and, where required, use the exis ting mechanisms of dispute settlement. They would only 
be implemented when bilateral or regiona l cooperation has faile d to establish an 
appropriate management regime for the stocks concerned.  
The "IUU Regulation"
41 contemplates inter alia the use of trade restrictions for vessels 
engaged in illegal, unreported and unregulated fishing. However, it is not considered as 
applicable for the problem described above. The IUU Regulation addresses issues of 
lack of compliance with applicable intern ational and domestic conservation and 
management measures, whilst the measures th at are being envisaged in the present 
context target fis heries not covered by agreed c onservation and management measures, 
conducted in absence of cooperation with othe r coastal States and constituting a threat 
to sustainability.  
Other examples of the application of trade re strictions for conservation purposes are the 
CITES Convention, transposed in EU le gislation by Regulation (EC) No 338/9742, and 
certain recommendations made in the context of RFMOs . None of these instruments can 
be used in the cases above-mentioned. In the case of CITES, mainly because this Convention allows trade rest rictions only when the danger is imminent and very serious, 
which may be too late when the threat is  just overexploitatio n and not necessarily 
complete depletion of the stock. In the ca se of RFMOs, trade restrictions have been 
agreed in certain cases (bluefin  tuna in ICCAT, toothfish in CCAMLR), but this is not a 
generalized approach. Furthermore, RFMOs adopt  rules for the mana gement in their 
regulatory area, which does not necessarily co incide with the area where the problem is 
found, as it was the case for mackerel and blue whiting described above.  
The approach that is being envisaged needs to be analyzed in the cont ext of the relevant 
international law, including international customary law, the International Law of the 
                                                
 
41  Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to 
prevent, deter and eliminate illegal, unreported an d unregulated fishing, amending Regulations (EEC) 
No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 
and (EC) No 1447/1999 
42  Council Regulation (EC) No 338/97 of 9 Decembe r 1996 on the protection of  species of wild fauna 
and flora by regulating trade therein. OJ L 61, 3.3.1997, p. 1–69 
 
51 Sea, international treaty law, international trade law, main ly the GATT Agreement, and 
any other bilateral or multilateral inter national agreements such as the EEA. Any 
measure imposing trade restrictions will have to be fully consistent with this legal framework 
Questions: 
Do you agree with this analysis of the possible approaches?  
Target population: Member States' authorities:
 
 Fully Mostly Partially Barely Not at all 
 ES, IE, AT, 
UK, DE, IT, DK SI, FR, PO, 
HU, EL PT, NL, MT   
 
Observations: 
PT: The IUU regulation should be app lied to Iceland and Faroe Islands. 
FR: The economic sanctions should cover all other species concerned. As an 
example, deep water fish from Faroe Islands. 
NL: The analysis of possible measures  should include "countermeasures" and 
dispute settlement procedures under UNC LOS (although it is rec ognized that this 
will be a lengthy process). 
EL: Agree that the existing framework does not allow to cover the cases described. 
UK: Need to re-consider the use of the IUU scheme, possibly by amending the 
Regulation. Further consideration also to  use the ITCLOS mechanism This also a 
good opportunity to reconsider th e remit and powers of RFMOs. 
MT: Better coordination is required in RFMOs. DK: Important to ensure full consistency with international law. 
Target population: stakeholders:
 
 Fully Mostly Partially Barely Not at all 
 ARVI AIPCE, 
Klondyke, EAPO, RSPB, KFO, FEABP, ADAPI, PELRAC NFFO  SPFA, 
FEOPE 
 
Observations: 
 
52 EAPO, KFO, ADAPI, PELRAC: In addition, independent legal advice suggests that 
the IUU regulation could be applied.  
SPFA, NFFO: Action should be taken rega rdless of being outside perceived 
international law 
FEOPE: Do not think that the IUU Re gulation, CITES, UNCLOS, GATT or EEA 
are of any use. Furthermore, RFMO m easures are not always compulsory and 
contracting parties can object. 
Do you agree in particular that trad e restrictions may be a solution? 
Target population: Member States' authorities:  
 Fully Mostly Partially Barely Not at all 
 FR, NL, IT PT, SI, IE, 
PO, DE, MT AT, HU, 
EL, UK DK  
 
Observations: 
PT: Attention to fish products en tering the EU via a third country. 
SI: Trade restrictions ar e largely ineffective. 
ES: The effect of trade restrictions may be limited in the case of mackerel, since 
there are other markets. 
IE: Fully supportive, but are concerned as  to the long time it may take to put 
concrete measures in place. 
AT: The question is whether EU import restrictions can solve the worldwide 
problem of overexploitation of  fish stocks. Aquaculture may give a better solution. 
NL: Yes to trade measures but also c ontinue pushing for a negotiated solution. 
EL: Trade restrictions do not address the problem globally. There should be 
complementary measures 
UK: Trade related sanctions play a role in  encouraging parties back to negotiation 
table, but are not the only means to solve the crisis. 
DE: Trade restrictions could help to push certain countries to adopt more 
constructive positions. 
MT: Trade restrictions serve only partia lly. Soft tools such as eco-labels may 
undermine sustainable development. 
DK: The trade restrictions mentioned are seen  prima facie to be against international 
law (Notably WTO/GATT). Furthermore such  steps could escalate the friction 
between the parties. 
Target population: stakeholders:  
 
53  Fully Mostly Partially Barely Not at all 
 Klondyke, 
EAPO, SPFA, RSPB, KFO, FEABP, ARVI, NFFO, PELRAC FEOPE, 
ADAPI  AIPCE  
 
Observations: 
AIPCE: The legislative route is  not necessarily  appropriate. 
KFO, PELRAC: Yes, and they should pr ogressively include other products and 
other fish, including whitefish. 
FEOPE: Within the current setup it is difficult to get the measures in time. 
ADAPI: Yes, but we need to be careful of possible entries via a third country. 
6. POSSIBLE OPTIONS TO ADDRESS THE IDENTIFIED PROBLEM  
A first option  would be to take no action and expect that external circ umstances change, 
inducing a change in the attitude  of the third countries in c ause. As an example, in the 
case of mackerel one could expect a change in the distribution and migration of the stock, so it becomes unavailable or scarce in  the waters of Faroe Islands and Iceland, as 
it was the case a few years ago. This scenario is however associated to the risk of a 
worsening of the situation if the expected changes operate  in opposite direction.  
A second option
 would be to take measures in the form of non-legislative instruments, 
such as mechanisms of the type "blame and sh ame", sustainability labels or diplomatic 
démarches in different forms. Such measures  would aim at discouraging consumers from 
buying the fish products origi nating from a non-cooperating country or to put direct 
political pressure on that country. Such mec hanisms have to be studied to see if they can 
be effective but there may also be (technical or  other) drawbacks that need to be studied 
carefully, since in addition their associated adm inistrative burden can be non-negligible.  
A third option  would be to provide the common fis heries policy with a regulatory 
instrument allowing a quick response to the problem by imposing trade-related measures 
on fish products derived from the relevant fish stock and that have an origin in the 
country concerned. At first si ght, this would seem to be  an effective approach, but it 
should be carefully defined so that it is co mpliant with multilatera l and bilateral trade 
agreements and obligations. The approach also necessitates identify ing and determining 
the origin of the products at the customs, in particular where the products have been 
transformed or elaborated subst antially in different countries. 
A fourth option  would be to impose limited trade restri ctions so as to exclude from them 
products for which the determination of the or igin would be disproportionately difficult. 
 
 
54 A fifth option  would consist of a regulatory instru ment providing for "counter-measures" 
in response to an "internationally wrongful ac t" committed by another State. Recourse to 
such "counter-measures" is recognised under cu stomary international law provided that 
due process and proportionality requirements are met. "Counter-measures" could consist of trade-restrictive measures, limitations of a ccess to ports and/or of any other measures 
that are capable of induci ng the offending State to disc ontinue its wrongful conduct. 
In the cases of options 2 to 4, the measures taken should be either limited in time or 
subject to revision on account of a change in  the circumstances that had led to their 
adoption. In the case of "counter-measures", th e measures taken must  be reversible; they 
must actually be lifted once the offending St ate has put an end to its wrongful conduct.  
The burden associated to the legislati ve process not only for the adoption of the 
regulation setting out the instrument, but al so for subsequent specific acts applying the 
instrument to one or another situation, s hould also be weighe d against the expected 
benefits.  
Other options are possible and can be suggested for consideration. Questions: 
Which kind of measures would you consider effective in solving the problem 
identified?  
Target population: Member States:
 
 Effective  More or less 
effective Last resort Ineffective 
Option 1 : no action   ES, FR, UK PT, SI, IE, 
PO, AT, NL, HU, EL, UK, DE, MT, IT 
Option 2 : soft 
instrument  PT, SI, ES, 
PO, AT, HU, UK, DE, MT IE, FR, NL, 
EL IT 
Option 3 : regulatory 
instrument (trade restrictions on fish products derived from the relevant fish stock) PT, ES, NL, 
HU, MT SI, IE, FR, 
AT, EL, UK, DE, IT   
Option 4 : regulatory 
instrument (more limited trade restriction) ES PT, SI, IE, 
FR, AT, NL, EL, UK, DE, IT HU, MT  
Option 5 : regulatory 
instrument ("counter-measures") PT, ES, IE, 
NL, IT SI, FR, AT, 
HU, EL, UK DE, MT  
Other options  (describe 
below) IE, FR NL, UK   
 
Observations: 
 
55 ES: Neither the accession process (Iceland)  nor the special relations with Denmark 
(Faroe Islands) should be an obstacle. 
IE: Suggests an incremental approach, starting by prohibition of imports of 
mackerel, followed by prohibiting imports of  fish meal and, if necessary, of any 
fishery product. Shortfalls of fish products can be covered by other imports. 
FR: As said before, import restrictions should cover other species. Diplomatic 
démarches only can aggravate the atmosphere for negotiations. 
PO: For option 2, rather less than more effective. NL: Options 3 and 4 are, respectively, poten tially effective and potentially more or 
less effective. The "name and shame" option might backfire on the EU. 
EL: Better use a combination of options. Use UNCLOS, the Fish Stocks Agreement 
and the FAO Code of Conduct for Responsible Fisheries 
UK: Soft measures may help but are insu fficient by themselves; option 3 should be 
subject to scrutiny and consultation with Member States before its application to individual cases. On option 4, all effo rts should be made to identify as many 
products as possible. Countermeasures could be taken in combination with options 2 
and 3. As "other options", consideration should be given to the ITLOS mechanism. 
DE: the soft instrument is necessary but not sufficient. 
MT: Option 3 is the preferred one. IT: Option 3 requires long time DK: Any measure imposing tr ade restrictions must be fully consistent with 
international law. The outlined trade rest rictive measures give rise to serious 
concern regarding compatibility with intern ational law. This is especially the case 
with option 2, 3 and 5, which risk violat ing the national treatment principle in 
GATT. 
Target population: Stakeholders:
 
 Effective  More or less 
effective Last resort Ineffective 
Option 1 : no action    Klondyke, 
EAPO, SPFA, RSPB, KFO, FEABP FEOPE, 
ADAPI, 
NFFO, PELRAC 
Option 2 : soft 
instrument  ADAPI  Klondyke, 
EAPO, SPFA, RSPB, KFO, 
 
56 FEABP 
FEOPE, NFFO, PELRAC 
Option 3 : regulatory 
instrument (trade restrictions on fish products derived from the relevant fish stock) Klondyke, 
EAPO, SPFA, FEABP, ADAPI, ARVI, NFFORSPB, KFO 
FEOPE, PELRAC   
Option 4 : regulatory 
instrument (more limited trade restriction)  FEABP, 
ADAPI Klondyke, 
EAPO, SPFA, KFO, PELRAC FEOPE, 
NFFO 
Option 5 : regulatory 
instrument ("counter-measures") Klondyke, 
EAPO, SPFA, KFO 
FEOPE, 
ADAPI, NFFO, PELRAC RSPB FEABP  
Other options  (describe 
below) EAPO, 
NFFO Klondyke, 
KFO, PELRAC   
 
Observations: 
AIPCE: None of the said measures is preferred. EAPO, KFO: Use the IUU regulation, susp ension of accession talks. Trade on 
mackerel is relatively small, and therefore trade sanctions should include all fish and 
fish products; 
SPFA: Combinations of measures should also be foreseen. KFO: A major diplomatic offensive w ould be "more or less effective". 
FEOPE: It would be interesting to c opy correlated systems in force in other 
countries as the USA. 
NFFO: Ban all fish meal coming from Icela nd and Faroe islands, since it is difficult 
to recognize whether it contains mackerel. Escalate the ban to include other species 
if necessary. Suspend accession negotiations with Iceland. 
PELRAC: A restriction of the imports of al l fish and fishery products from Iceland 
and the Faroe Islands should be considered as a serious option. 
7. P
OSSIBLE EFFECTS OF IMPORT LIMITATIONS OR RESTRICTIONS  
This section enters into some detail about the specific effects of one  or another option.  
 
57 The EU market of fish products is partly  dependent on impor ts. Any limitation or 
restriction of these may have a non-negligib le impact on the supply to the EU market. 
The degree of such impact will depend very much on the type of product, the quantities 
being subject to restriction or allowed, the possibility to find al ternative sources of 
supply and the final destination of th e product (direct human consumption, fish 
processing industry, fish meal and oil industry,  etc). Although at this juncture it would be 
difficult to evaluate th e effects of trade restrictions as a general measure, perhaps 
stakeholders could give an opini on on the following assertion: 
"It is possible to assume the implications  of a trade restrict ion or limitation on the 
EU market in the short term, if this is done for the sake of ensuring the sustainability of the stock and avoid stock depletions, which is the main condition to 
guarantee the long-term suppl y of the EU market" 
Question:  
Do you agree with this assertion?  
Target population: Member States' authorities:
 
 Fully Mostly Partially Barely Not at all 
 ES, FR, IT PT, SI, IE, 
PO, AT, NL, 
UK HU, EL, 
MT, DK   
 
Observations: 
PT: Need to supply the market; the strate gic orientation of the CFP towards fleet 
reduction does not help. 
ES: The EU fleet production can compensate  largely the losses resulting from an 
import ban. 
IE, FR: Long term losses of mackerel fo r our fishing industry largely outweigh any 
short term discomfort strong trade restrictions may pose. 
AT: Such a general question cannot be usefully commented by stakeholders. 
NL: Attention should be paid to proportionality. EL: As it difficult to assess the effectivene ss of trade restrictions, it is difficult to 
justify whether their imp lications can be assumed. 
UK: In every individual case it should be possible to assess rather accurately the 
positive and negative impacts. UK has a perception of the potential negative impacts to be limited. 
MT: if there are socio-economic negative eff ects, then measures should be taken to 
mitigate them 
Target population: stakeholders:
 
 Fully Mostly Partially Barely Not at all 
 
58  Klondyke, 
EAPO, SPFA, KFO, ARVI, NFFO, PELRAC FEABP 
FEOPE, ADAPI  AIPCE  
 
Observations: 
AIPCE: Trade measures applied only to  the EU might unintentionally have 
significant impact on legitimate trade flows, which do not help to guarantee long-term supply for the EU. 
FEOPE, PELRAC: Add: in order to protec t the EU fishing i ndustry that is to 
disappear soon under the current policy. 
ADAPI: With such a high demand in the EU  market, the downsizing EU fleet will 
not be able to replace losses from an import ban. 
The effects of the possible intr oduction of import limitations or  restrictions will also be 
highly dependent on what is meant by "i mport". For example, the IUU Regulation 
defines importation as "the introduction of fisheries products into the territory of the Community, including for transhipment purposes at  ports in its territory". This definition 
encompasses therefore goods that are landed in the EU in transit towards other countries and has therefore a much wider cove rage than a consider ation of imports as 
goods having the EU market as immediate destination. 
Observations on the definition of imports:  
Target population: Member States:
 
PT, DK, IE: Should include all products AT: The difference is substantial: includi ng all imports may entail considerable 
administrative burden. 
NL: Precise details of the scope of the rest rictions are to be discussed at a later 
stage. 
EL: There is need of a harmonised definition of "imports". UK: The issue should be considered on a case-by-case basis. MT: Regulatory frameworks should be simp le to implement and solution-oriented. 
DK: The IUU Regulation is not relevant in this case, and hence neither its definition 
of “imports”. 
Target population: stakeholders:
 
Klondyke: Should include all products 
 
59 EAPO, SPFA, KFO FEOPE, NFFO : In the case of mackerel apply the restriction to 
all mackerel products entering the EU, include  if their destination is further afield, 
and having been originated in Iceland or Faroes, even if th ey have been rerouted via 
a third country. 
As evoked in the description of the options , any trade restricti on, including by "soft" 
approaches, will impose a certain administr ative burden. In some occasions this 
additional burden may be allevi ated by the rational use of existing administrative 
mechanisms, but in any case the increase in costs may be substantial. You are requested 
to synthetically describe, for your prefer red option, how you perceive this additional 
administrative burden. 
Observations on the administrative burden: 
Target population: Member States:  
PT: Needs to be done despite the cost. SI: It is important not to  add administrative burden. 
AT, DK: Most likely there will be admi nistrative burden, and this should be 
carefully considered. 
IE: Existing structures and procedures for cu stom control are expected to be largely 
sufficient to implement the new legislation. 
NL, UK: Additional administrative cost will always appear, so they need to be 
limited. 
MT: Administrative workload seems higher for option 3. 
Target population: stakeholders:
 
Klondyke, EAPO, SPFA, ADAPI: damage  if not action taken outweighs 
administration costs 
FEOPE: Additional burden can be compen sated with simplific ation of unnecessary 
rules. 
ARVI: The administrative burden should be  similar to what is found following a 
health alert or a safeguard clause 
NFFO. Not an issue: a blanket ban is easy to administrate. 
Final question: Please include below any other comments you may have on this proposal 
Target population: Member States:
 
PT: one could consider can cellation of bilateral agr eements, but with careful 
consideration of the effe cts on our own industry. 
DK: important that introduced measures are proportional. 
 
60 IE: Ireland advocates strong trad e measures including the possi bility to cover all fish 
products.  
EL: The solution should be effective (not simply exhortations) and adopted at the 
international level under the EU leadership. 
EE: The IUU regulation should be applied, an d not only in the case  of mackerel, but 
also on blue whiting and redfish as  far as Russia is concerned. 
LT: The scientific analysis should be of th e higher scale and qua lity, and other third 
countries concerned should be consulted 
UK: concerned by the timing. Measures for m ackerel should be specific, targeted, 
easily reversible. The general instrument should not allow trade measures without 
proper consultation to Member States. On the consultation about options, there are 
not single responses covering all possible case s. Te interests of all sectors, not only 
the catching sector, should be considered. Su stainability should be  at the forfront of 
fisheries and marine management. 
DE: Admits that certain behaviours a nd the shortcomings of the existing 
management frameworks makes it necessary to consider and examine certain trade 
measures. However, this does not predet ermine the German position on any future 
specific proposal in this regard. 
DK: Important that introduced measures are proportional and fully consistent with 
international law. Such measures should only be brought into e ffect if all other 
appropriate measures have been exhausted. 
Target population: stakeholders:  
Klondyke: danger for the Commission to be seen as a weak institution. EAPO, SPFA, KFO: Do not leav e the results of this consultation as an appeasement 
exercise. Keep Norway abreast of developments. 
KFO: the output of the exercise should be  a meaningful short-term solution that 
utilises all existing instruments, follo wed immediately by a wider scoped legal 
instrument. 
ADAPI: cancellation of existing bilateral agreements can be a possibility, but 
careful attention should be  paid to the possible damages to the EU industry. 
NFFO: the EU has left this issue to go on for far too long. Need to act immediately 
following the advice prepared for the No rth Atlantic Fishing Company Limited 
(Owen and Churchill, 2011). 
PELRAC: the issue is very technical and it is  expected that the Commission could take 
note of the discussion held by the PELRAC  Executive Committee on 12 April at Bilbao. 
  
Many thanks for your cooperation 
 
61 Annex II 
 
The problems associated with the ma nagement of Blue whiting and 
mackerel in the North-east Atlantic 
1. BLUE WHITING  
1.1. Biology 
Blue whiting is widely distributed in the eastern part of the North Atlantic with the 
highest concentrations along the edge of the continental shelf between 300 and 600 
m. Most of the spawning takes place along  the shelf edge and banks west of the 
British Isles. Juveniles are abundant in many areas, with the main nursery area 
believed to be the Norwegian Sea. Recent work on stock identification suggests that 
there is likely to be more than one single stock in the Northeast Atlantic. 
1.2. Fisheries 
This main fisheries on blue whiting take pl ace in the Faroes re gion, west of Scotland 
and around the Porcupine Bank (Figure 10.2.1). The fleet targeting blue whiting consists of several types of  vessels but the bulk of the catch is caught with large 
pelagic trawlers. The main countries exploiti ng this fishery, together with the most 
recent catch for which comprehensive and detailed date are available, are given 
below
43. 
 
The Areas mentioned in the first column correspond to the ICES areas as shown in 
the map below: 
                                                 
43  All tables and data shown in this annex are extr acted from the ICES website, in particular from the 
advice given by ICES for the management of blue whiting in 2010: http://www.ices.dk/committe/acom/comwork/report/2010/2010/whb-comb.pdf
 
 
 
62 
 
It must be underlined that the interests of  the EU do not appear fully represented in 
the catch table. In fact, most of the blue whiting that can be fished in EU waters and 
that, as an actual fact, belongs to the EU , is swapped with Norway in exchange for 
quotas of other valuable species to be fi shed by EU vessels in northern Norwegian 
waters (Arctic cod and haddock, mostly). As an example, swaps in 2009 and 2010 
were 63 000t and 59 900t re spectively. Swaps are common ly done also with Faroe 
Islands (10 500t and 9 000t  in the same years). 
Status of the stock 
According to the most recent assessment (see footnote 41 in this annex), the 
spawning stock biomass is below the referenc e points agreed (there  is less spawners 
at sea than what had been agreed as desira ble) and the fishing mortality is above the 
figure required to produce maximum sustaina ble yield. As a result, ICES forecasted 
for 2011 a catch of 40 100t if the management plan were to be adhered to, which implies a reduction of the catch of 93% from the level of 2010. 
Management regime 
 
63 At present blue whiting is managed as a single stock, until a better scientific 
background allows to determine the most  appropriate breakdown of management 
units. Coastal States (the EU, Norwa y, Faroe Islands and Iceland) fix the 
management measures (essentially, catch lim its and mesh sizes) applicable to their 
EEZ, and NEAFC sets out the regime applicab le (catch limits) in the international 
zone (identifiable in the map above), cal led the Regulatory Area. In setting the 
management measures for their respectiv e EEZs, Coastal States consult each other 
in order to keep exploitation consistent with scientific advice. Coastal States also 
propose in NEAF a catch limitation  in internatio nal waters that is consistent with the 
decisions taken for their own respectiv e EEZs. In 2005, Coastal States approved a 
long-term management plan, subse quently amended in 2008, specifying a 
mechanism to decide on catch limits and on the basis of the following44: 
"The Parties agree to implement a long-term management plan for the 
fisheries on the Blue Whiting stock, which is consistent with the precautionary approach, aiming at ensuring harvest with in safe biological limits and 
designed to provide for fisheries consis tent with maximum sustainable yield, 
in accordance with advice from ICES." 
As far as the NEAFC Regulatory Area is concerned, TACs are decided annually on 
that basis of proposals made by Coastal States. Most of the quotas are allocated to 
Russia. 
Until 2005, there was no agreement, either am ong Coastal States or within NEAFC, 
having a binding effect on any of the partie s. The EU fixed TACs of which a part 
was allocated to Member States and quotas we re left aside to swap with Norway and 
Faroe Islands, and the other Coastal States  did similarly, but this was done with no 
overall context guaranteeing that catches we re kept within sust ainable levels. As a 
result, the sum of individual TACs, and therefore the resulting catches, largely exceeded the catch recommended by scientists.  
Lack of agreement, or agreements that were not consistent with sustainability 
criteria, were always the result of excessi ve demands by some of the parties. These 
parties were opportunistically willing to ta ke advantage of th e apparently very 
healthy stock that continued to grow despite heavy fish ing on it. The following table 
(ICES, same source as above) allows a be tter understanding of the situation: 
                                                
 
44  Extract from the agreed record of consultations  between the European Community, the Faroe Islands, 
Iceland and Norway on the management of blue whiting in the North-east Atlantic for 2009.  
 
64 
 
It can be seen that catches exceeded consis tently the advice of scientists since the 
mid nineties and especially at the beginning of the 21st century, as a consequence of 
the lack of an effective agreement with in Coastal States and within NEAFC. 
Furthermore, Coastal States chose to waiv e the management plan agreed in 2005 for 
2006, postponing the necessary catch re ductions for subsequent years45: 
 " 
(1) The management targets are to main tain the Spawning Stock Biomass 
(SSB) of the Blue Whiting stock at levels above 1.5 million tonnes 
(Blim) and the fishing mortality rates at levels of no more than 0.32 
(Fpa) for appropriate age groups as defined by ICES. 
(2) For 2006, the Parties agree to limit their fisheries of Blue Whiting to a 
total allowable catch of no more than 2 million tonnes. 
(3) The Parties recognise that a total outtake by the Parties of 2 million 
tonnes in 2006 will result in a fishing  mortality rate above the target 
                                                 
45  Extract from the agreed record of consultations  between the European Community, the Faroe Islands, 
Iceland and Norway on the management of blue whiting in the North-east Atlantic for 2006. 
 
65 level as defined in paragraph 2. Until the fishing mortality has 
reached a level of no more than 0.32, the Parties agree to reduce their total allowable catch of Blue Whiting by at least 100,000 tonnes 
annually.. "  
The planned reduction in catch for 2007 a nd 2008, was however insufficient to halt 
the decline of the stock, and the multi- annual management plan of 2005 was 
consequently revised in 2008. Although the new management plan was evaluated by ICES as consistent with the precautionary  approach and MSY objectives, the fact is 
that the decision taken for 2009 was for a TAC well above the figure recommended 
by ICES to halt immediately the decline of the stock. 
As a result of this sequen ce of decisions (and lack of decisions), a consistent and 
effective management plan was agreed a nd properly implemented between coastal 
States far too late to allow the stock to quickly recover:  the poor state of the stock 
led to a situation whereby, for 2011, if the management plan were followed (which 
indeed was the decision), catches should be reduced by 93% from their level 2010.  
The rules adopted by NEAFC for the re gulatory Area in 2011 were fortunately 
consistent with this very drastic reduction: a TAC of 5831t
46, but Russia objected in 
31 December 2010 in accordance with Arti cle 12 of the NEAFC Convention, on the 
basis that the scientific advice available contemplated solutions different from a 
drastic catch reduction. Russia adopted  an autonomous catch limit of 45 000t 
together with a delayed start of the fishery by 1 March 2011. 
The consequences of the loss of fishing opportunities on blue whiting are disastrous 
for several key EU sectors. Specialised fl eets will have stopped or drastically cut 
back their activity, with important social consequences in terms of job losses, and 
the traditional swaps with Norway had to  be discontinued, which implies losses of 
fishing possibilities in Arctic waters.   
2. MACKEREL47 
Biology 
The combined northeast Atlantic mackerel is assessed as one stock but composed of three 
spawning components. Spawning areas of ma ckerel are widely spread, and only the 
North Sea component is suffici ently distinct to be clearly identified as a separate 
spawning component. Mackerel from the Southe rn and Western areas migrate to feed in 
the Norwegian Sea and the North Sea during th e second half of the year and then they 
mix with the North Sea component (overw intering). In recent years the “feeding” 
migration appears to take place more to the western approaches of the North-east 
                                                 
46  This TAC includes part of the catch that Coastal St ates can take in their EEZ. As a consequence, the  
additional catch that it represents is only 3192t (of which 2975t for Russia and 217 for Greenland). 
47  Most information and data shown in this annex are extracted from the ICES website, in particular from 
the advice given by ICES for the management of mackerel in 2010 and from the report of the ICES 
working group dealing with widely distributed stocks (WGWIDE). These reports can be found online: http://www.ices.dk/committe/acom/co mwork/report/2010/2010/mac-nea.pdf
 
http://www.ices.dk/workinggroups/ViewWorkingGroup.aspx?ID=273  
 
66 Atlantic, perhaps due to the effects of climat e change, and this has made mackerel more 
available to fisheries in the Icelandic and Faroese EEZs than historically was the case.  
Return to the spawning grounds start in the early spring and goes on until the end of the 
spawning season, which is variable for the di fferent spawning components of the stock. 
State of the stock 
Following recent good recruitments (entry in th e stock of newborn individuals each year) 
in 2002, 2005 and 2006, the stock increased shar ply, reaching a peak of spawning stock 
biomass (the total weight of the individuals capable to reproduce at spawning time) close 
to 3 million tonnes, the highest on record. The fishing mortality, which reached high 
levels (F=0.44) in 2002, was subsequently reduced and re ached a value of F=0.23 in 
2009. These figure compares with reference points established by ICES as follows: 
 
The current value of fishing mortality for macker el is therefore very close to the one that 
would produce MSY in the long term (F=0.22), and the spawning stock biomass is well above the levels associated to MSY (SSB
MSY=2.2 million t) or to a precautionary level 
(SSB pa= 2.3 million t)48. In other words, the stock is now  healthy and fish ed at a rate 
which may lead to maximum sustainable yield.  This is the desired status of any fish 
stock. 
Fisheries 
This species is distributed in  the whole ICES area and currently supports one of the most 
valuable European fisheries (with 2010 la ndings estimated at 930 000t). Mackerel is 
fished by a variety of fleets (ranging from  open boats using hand lines on the Iberian 
coasts to large freezer traw lers and Refrigerated Sea Water (RSW) vessels in the 
Northern Area. The stock is historically di vided into three compone nts, with the North 
Sea component considered to be over fish ed since the late 1970s, and the Western 
component contributing the vast majority  of biomass and catch to the stock. 
The patterns of NEA mackerel  fishing are very variable throughout the wide mackerel 
distribution and between the seasons due to migration, spawning, feeding and over-
wintering. The largest fisheries have been  on the over-wintering and early spawning 
migration phases. The geographic area of th ese fisheries has changed over time, and a 
precise description of their di stribution is given in the repo rt of WGWIDE (see footnote 
                                                 
48  This level of SSB is defined as the one which gu arantees with a high probability that the actual value 
of SSB, which is estimated with a certain inaccuracy, is  not at the level of SSBl im, which is thought to 
lead to stock depletion. 
 
67 45 above). The important feature to underline is that in recent years the fishery has 
shifted towards the north and to the north-w est, perhaps due to oceanographic conditions 
determined by climate change (which led to the recent dispute with Iceland and the Faroe 
Islands).  
The following table (ICES report, updated) shows the recent evolution of catches by 
country: 
 
 
Economic importance of the fishery 
According to an assessment on the basis of  2009 values conducte d by Unit MARE A3, in 
charge of the structural policy and economic analysis, about 800 EU vessels have a 
strong (>39%) dependence on mackerel49. Those vessels employ more than 1 630 
workers generate a gross value added of above 45mio€. Most of these (in numbers) 
belong to the small-scale fishing segment of Irish handliners. 
                                                 
49  Dependence is measured as the ratio between the va lue of catch of mackerel and the value of the total 
catches for ach specific segment. 
 
68 Management 
Until 2007, Norway and the EU were the majo r if not the only shareholders of this 
fishery and have responded to the above-m entioned internationa l requirements by 
consulting each other and reaching a common understanding on the management of the 
stock. Since that year, until 2010, and responding to  an increased availability of mackerel 
in the EEZ of the Faroe Islands, this country  also participated in the consultation on 
mackerel management. The part of the fish ery conducted in international waters (the 
NEAFC Regulatory Area) was managed si nce 2006 and until 2009 by the North-East 
Atlantic Fisheries Organization (NEAFC). 
A management plan was agreed by Norwa y, Faroe Islands and EU in October 2008. 
ICES has evaluated the plan an d concluded that it responds to the preca utionary principle 
and is well designed to achi eve maximum sustainable yield. 
Since 2008, and following a progressively increas ing availability of the stock in the EEZ 
of Iceland, this country started to devel op a fishery on mackerel which by 2009 reached 
levels of more than 130 000 t. This figure was interpreted by the other coastal States 
(Norway, the EU and Faroe islands) as exces sive and incommensurate with what could 
be taken as legitimate rights of Iceland with regard to commonly accepted allocation 
criteria in internati onal practices on sharing of fish resources. For comparison, the TACs 
agreed by the other three coastal States were as follows: EU: 367 000t, Norway: 181 000t, Faroe Islands: 17 000t. Both Norway and th e EU invited Iceland to limit its catches 
to more reasonably levels, but with no avail.  
The attitude of Iceland, not w illing to lower catches and the inability of Norway and the 
EU to force it to reduce its fishing level led the Faroe Islands to break the arrangement agreed with the EU and Norway for 2010 a nd set an autonomous quota of 80 000 t, 400% 
about the previously agreed figure of 17 000t.  
In early 2010, Norway and the EU inv ited Iceland and Faroe Islands to open 
consultations to try to establish a four-band Coastal States arrangement for the long-term 
management of the stock. Meetings among Norway, the EU, Denmark, on behalf of Faroe Islands, and Icelan d took place on 15-18 March 2010 in Alesund (Norway), 28-30 
May 2010 in London (UK), 21-22 Septembe r 2010 in Reykjavik (Iceland), 12-14 
October 2010 in London (UK) and 26 November 2010 in Oslo (Norway).  
In spite of efforts to find a consensus among al l participants, Iceland left the meeting 26 
November 2010 and announced a unilate ral quota of 146 818 tonnes for 2011, 13% 
higher that the already perceived as excessi ve quota for 2010. On their side, the EU and 
Norway agreed on their respective catch limitations and on the exchange of fishing 
opportunities between them. According to this  arrangement, the EU and Norway would 
set for 2011 catch limits of 400 813t an d 183 069, respectively. The EU, after having 
exchanged some fishing possibilities with Norway and kept aside 4 990t for future 
exchanges, adopted catch limits for the three EU management areas as follows
50: 
                                                 
50  For a complete description of these areas, see Council Regulation (EU) No 57/2011 of 18 January 
2011 fixing for 2011 the fishing opportunities for certain fish stocks and groups of fish stocks, 
applicable in EU waters and, for EU  vessels, in certain non-EU waters: http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:024:0001:0125:EN:PDF  
 
 
69 – North Sea: 20 002t 
– Western and northern waters: 258 684t 
– Southern waters: 29 572t 
– Norwegian waters: 11 240t 
As far as international waters are con cerned, NEAFC adopted in November 2010 a 
recommendation to Contracting Parties inviting them to adopt catch limits and to notify 
them to the other Contracting Parties.  
During the winter of 2010-2011, several enco unters took place separately between the 
EU and Iceland, Norway and Faroe Islands, to gether with announcements of the use of 
trade-related measures51. A resumption of Coastal States consultations took place in Oslo 
from 9 to 11 March 2011 but no arrangement s were concluded, notab ly due to escalating 
demands with higher expectations from the Faroe Islands and a still unacceptable 
approach from Iceland. 
The end result of the notifications to NEAFC was the following: – EU (provisionally): 327 298t as  part of the catch limits for the EU fishing zone, which 
also applies to the NEAFC Regulatory Area 
– NO: the 182 827t agreed with the EU can  also be taken in the NEAFC RA 
– ICE: Of the 154 825t catch limit for the Icelandic EEZ, up to 20 000t can be taken in 
the NEAFC RA.  
– FI: The 150 000t catch limit for the Faroes e EEZ can be taken from the NEAFC RA. 
– RF: A catch limit of 49 243t for the NEAFC RA. 
In all, total catch in 2011 may reach 937 950t in both the NEAFC RA and the EEZs of 
Coastal States, i.e. 45% higher than the catch  forecasted by ICES if the management plan 
was followed. According to the ICES catch forecast, such a catch would result in a 
fishing mortality of F=0.33. This figure is 50% higher than the value of F=0.22 that, 
according to ICES, would lead to maximum su stainable yield. F=0.22 also represents the 
upper limit of the range of F-values aime d at by the management plan designed by 
Norway, the EU and Faroe Islands in 2008. 
Although there is no immediate danger of colla pse of the stock, reverting in 2012 to 
catch rates consistent with the management plan may imply importa nt losses of potential 
yield. These losses are to be estimated with some precision following the new assessment that will be conducted in September 2011. 
3. O
THER POTENTIAL CASES  
Other stocks are managed in the complex way described above for blue whiting and 
mackerel. Essentially, NEAFC recommenda tions only apply to the NEAFC RA, and 
                                                 
51  In January 2011, the joint Committee of the European Economic Agreement was convened by the EU 
to announce its intentions to ban all landings of mackerel in the EU ports by Icelandic vessels on the basis of the European Economic Agreement (EEA), which foresees such type of measures in its 
Protocol No 9. 
 
70 management rules in the EEZs of Coastal Stat es are adopted by these, preferably in a 
coordinated manner in the context of "consultati ons". Other stocks subj ect to this regime 
in the North east Atlantic are: redfish, Atla nto-Scandian herring and horse mackerel. Of 
these, only redfish present recurrent problems associated to disproportionate demands of 
coastal States, but no stock is free from the danger of a coastal state breaking the 
equilibrium achieved in the multi-lateral consultations. 
It must be underlined that the results of th ese consultations are not  legally binding: they 
cannot be called "agreements" with the meanin g implied in international law. They are 
instead termed "arrangements" whereby th e parties announce that they will recommend 
their respective fishing authorities the a doption of one or another measure. These 
authorities are free (although bound politically) to adopt or not the measures discussed 
during the consultations. 
This is the reason why, in the case of mackerel , the decision of Faroe Islands to break the 
arrangements concluded in 2008 for the manageme nt plan could not be taken as a breach 
of international law that could led to apply the meas ures of the IUU Regulation. 
In these circumstances, if the EU honours it s ambition to lead good fishery management 
practice in the international s cene, it would be justified to  provide it with the widest 
possible range of instruments to induce ot her countries to do the right management 
choices. 
 
 Annex III.  
Calculation of administrative burden 
 
 
 
72 
 
 
73 
 
 
 
 Annex IV 
List of acronyms 
 
ACFA  Advisory Committee for Fisheries and Aquaculture 
CFP  Common Fisheries Policy CITES Convention on International Trade in Endangered Species of Wild Fauna 
and Flora 
EEA  European Economic Area EEZ  Economic exclusive zone EP  European Parliament EU  European Union F  Fishing mortality FAO  Food and Agriculture Orga nization of the United Nations 
FI  Faroe Islands H/G  Headed and gutted GATT  General Agreement on Tariffs and Trade IA  Impact Assessment IASG  Impact Assessment Steering Group ICE  Iceland ITLOS  International Tribunal for the Law of the Sea ICES  International Council fo r the Exploration of the Sea 
IUU  Illegal, Unreported and Unregulated fisheries 
LDRAC Long-Distance Fleet RAC MSC  Marine Stewardship Council MSFD  Marine Strategy Framework Directive MSY  Maximum sustainable yield NEAFC North-East Atlant ic Fisheries Commission 
NEAFC RA NEAFC Regulatory Area NGO  Non-Governmental Organization NO  Norway PELRAC Pelagic RAC RAC  Regional Advisory Committee RFMO  Regional Fisheries Management Organization 
SSB  Spawning Stock Biomass STECF Scientific, Technical and Economic Committee for Fisheries 
TAC  Total allowable catch TFEU  Treaty on the Functioning of the European Union UN  United Nations UNCLOS United Nations Convention on the Law of the Sea WGWIDE Working Group on Wide ly Distributed Stocks