[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 25.7.2007

COM(2007) 448 final

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2005

COMMUNICATION FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT

Reports from Member States on behaviours which seriously infringed the rules of the Common Fisheries Policy in 2005

1. INTRODUCTION

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

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

The present Communication refers to the cases of behaviours which seriously infringed the rules of the CFP and for which a file has been opened by a national authority in 2005. This is the sixth Communication on this matter. The Commission presented the most relevant data for 2000 in its Communication of 12 November 2001[4], for 2001 in its Communication of 5 December 2002[5], for 2002 in its Communication of 15 December 2003[6], for 2003 in its Communication of 30 May 2005[7], and for 2004 in its Communication of 14 July 2006[8].

2. REPORTS FROM MEMBER STATES FOR 2005

Council Regulation N° 2740/1999 lays down detailed rules for the transmission of data concerning behaviours which seriously infringed the rules of the Common Fisheries Policy. Data shall be transmitted by electronic means. On the basis of these data, the Commission’ services produce tables annexed to the Communication. These tables are designed to highlight the most interesting features stemming from the Member States’ reports.

It is important to underline that data shown are those provided by Member States. Member States have been given the possibility to verify these figures before the Communication is finalised by the Commission.

3. SUPPLEMENTARY INFORMATION PROVIDED BY MEMBER STATES

As the interpretation of information gathered is not easy since it exclusively consists of sets of figures, and some data could be misleading to some extent, the Commission invited Member States to provide supplementary information that they deemed useful to clarify the analysis of the figures.Supplementary information has been provided by some Member States. The main elements can be summarized as follows:

- The procedures (be they of an administrative or criminal nature) launched for sanctioning infringements of the CFP rules are generally lengthy. 8 to 12 months seems to be the time required on average until termination of the whole procedure. Criminal procedures are in general the longest ones (only criminal procedures are applied by Belgium, Ireland, the Netherlands and Finland);

- Little information has been gathered on the species most concerned by serious infringements: in general those species for which recovery plans or restrictive national measures are in place and those with high commercial value (i.e. cod, herring, anglerfish, turbot, plaice, sea bass, scallop…) and on the areas where serious infringements have been committed;

- It appears that most infringements are detected by Member States within their EEZ - which is obvious - but at present it is not possible for the Commission to specify the ICES zones in which the infringement was committed since most of the national reports do not provide such details.

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

- Ireland enacted on 4 April 2006 the Sea Fisheries and Maritime Jurisdiction Act 2006, in order to update Ireland's national sea fisheries control regulations and ensure compliance with the control obligations of the Common Fisheries Policy. This Act increased penalties for fisheries offences;

- France expressed its intention to modify in the near future the control regime applicable to the CFP in order to make sanctions more effective. A number of administrative measures to reinforce the efficacy of sanctions have already been adopted in 2005;

- The United Kingdom has supplemented in September 2005 their control measures by introducing a new scheme for the registration of first buyers of fish. The Scottish Fisheries Protection Agency (SFPA) also reached an agreement with the Crown Office Prosecution Service according to which cases could be submitted to the Procurator Fiscal who may impose a fiscal fine; these cases are not presented before a court and are dealt with in an administrative procedure;

- Spain adopted in 2005 an administrative act which establishes detailed criteria for administrative sanctions to be applied in case of infringements in the fisheries sector;

- Portugal has adopted guidelines in order to improve inspections and follow-up of infringements;

- Sweden announced the introduction of a modification of the sanction regime that would allow the administration to fix administrative sanctions (seizures, withdrawal of authorisations) once the Court has declared that the wrongdoer is guilty of a serious infringement to fisheries rules.

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

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

Member State | Number of vessels | Serious infringements |

Belgium | 121 | 22 |

Denmark | 3269 | 361 |

Germany | 2121 | 96 |

Greece | 18279 | 377 |

Estonia | 1045 | 19 |

Spain | 13684 | 2949 |

France | 7859 | 864 |

Ireland | 1415 | 109 |

Italy | 14426 | 3280 |

Cyprus | 886 | 9 |

Latvia | 928 | 132 |

Lithuania | 271 | 3 |

Malta | 1420 | 3 |

Netherlands | 828 | 117 |

Poland | 974 | 105 |

Portugal | 9186 | 761 |

Slovenia | 173 | 13 |

Finland | 3267 | 25 |

Sweden | 1639 | 53 |

United Kingdom | 6766 | 234 |

5. THE REPORTS SUBMITTED BY THE MEMBER STATES

The total number of cases reported by Member States is 10 443 spread over the whole list of breaches included in the list of Council Regulation (EC) N° 1447/1999. The number is 8,11% higher than in 2004: the trend towards an increase on the number of detected breaches is thus confirmed, although one should also consider the enlargement of the European Union. Precisely, the Member States have detected 783 breaches more than in 2004, but the fleet has increased by 5697 units since the 2004 Accession. With a view to easing the comparison, it should be noted that the number of serious infringements detected in previous years was 7 298 in 2000, 8 139 in 2001, 6 756 in 2002, 9 502 in 2003 and 9 660 in 2004.It should also be noted that some Member States reported in 2005 a significant, and unexplained, increase or drop in the number of cases detected when compared with 2004 figures. This may be at least be partly due to the fact that, as already underlined in the previous Communications, the number of infringements recorded may or may not include breaches of rules other than the CFP rules and/or related to activities carried out in internal waters or while fishing for recreational purposes, following national guidelines.

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

74% of the infringements have been detected by Spain, Italy and Portugal. These countries are also among those with a larger number of vessels. Unauthorised fishing concerns 23% of cases, while storing, processing, placing for sale and transporting fishery products not meeting the marketing standards in force comes second (17%). Fishing without holding a licence rises to third position (15%). These percentages are similar to those for 2004 and in fact most infringements detected since 2000 relate to these three types of behaviour, while very few cases (less than 10%) concern other types of serious breaches to the rules of the CFP. The number of cases of tampering with the Vessel Monitoring System (VMS) almost doubled in 2005 in comparison with previous years. It seems nevertheless still low when the observations made by the Commission's inspectors are considered.

In 2005 8 665 procedures ended with a sanction. There are still striking and inexplicable differences for the same type of infringement across EU and the average fine imposed across EU in the proceedings that ended with a penalty in 2005 amounts to EUR 1 548 : this figure is less than half the average fine imposed in 2003 (EUR 4 664) and less than the average fine imposed in 2004 (EUR 2 272). There has also been a significant decrease in the number of licences withdrawn, which is also shown in the annexed tables (only 335 compared with 1 226 in 2004). Only Denmark and Greece used this penalty in more than 10% of the infringements sanctioned. Spain and France have reported 1 and 8 withdrawals respectively.

Finally, attention is drawn to the consideration that the amount paid by the fisheries industry as a consequence of monetary penalties imposed in 2005 (€ 10,8 millions) remains rather insignificant since it represents only a 0.17% of the value of landings in 2004.

6. GENERAL REMARKS ON MEMBER STATES ' REPORTS

After having underlined once again how difficult it is to interpret the set of figures shown in the tables without comments from the Member States, the Commission concludes that the situation has not really improved compared with the previous year.What is particularly worrying is that the inadequate level of the sanctions imposed in most of the cases detected as well as the low probability of being caught and pursued by the control authorities may convince the fisherman that the economic benefits that he can draw by breaching the rules outweigh the risk. An incongruous level of penalties allows the fishing industry to consider disbursements imposed for infringements to the CFP rules just as an ordinary running cost of the enterprise and this annuls any real incentive to be compliant.

The Commission again calls on Member States to ensure a system of sanctions that has a deterrent effect and to amend as appropriate their legislation so that sanctions have a dissuasive effect. To this end the Commission suggests that, as a general rule, the value of the catches on board should be taken into consideration by the authority when computing a penalty. Moreover, although Member States are free to adopt procedures they deem to be the most appropriate, the Commission wishes to restate its opinion that an administrative sanction like the suspension of an entitlement to fish or to carry out a professional activity is a very effective tool in enhancing compliance with CFP rules, because it can be quickly applied and it has an immediate effect. The Commission has noted that some Member States have introduced this measure which was previously unknown in their legal system. It is regrettable that the majority of Member States do not use this tool yet, at least when a breach of the rules is so serious as to justify opening a criminal procedure.

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

Several RFMOs have put in place or are about to adopt control schemes which foresee the recording of infringements. For instance, such schemes exist within the Northwest Atlantic Fisheries Organisation (NAFO), the North East Atlantic Fisheries Organisation (NEAFC) and the Commission for the Conservation of the Antarctic Living Resources (CCAMLR).

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

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

In the context of RFMOs, it appears that 11 apparent infringements, (i.e. alleged) as regards Community vessels were detected in the NEAFC area in 2005. No infringement by Community vessels was detected in the CCAMLR area. Concerning NAFO, 10 apparent infringements by Community vessels were notified by other contracting parties. This figure is still subject to validation by NAFO.

For the sake of transparency, the Commission would have wished to compare the number of serious infringements committed by Community vessels and detected in the areas of competence of RFMOs with the number of serious infringements committed by other Contracting Parties in the same areas. Any progress in this field will be, nevertheless, subject to changes in the policy of RFMOs responsible for the publication of statistics on serious infringements detected in their areas of competence.

8. THE WAY FORWARD

The Commission still considers this Communication to be potentially a useful tool to compare Member States' performance in ensuring compliance with the CFP rules. Most Member States share the Commission's view.The value of the annual publication of the Communication on "serious infringements" will be assessed in the context of the need to ensure a level playing field across Member States, as it was underlined when the CFP reform was decided in 2002. It is a common opinion that it is of paramount importance to secure full transparency on sanctions applied by the Member States for breaches of CFP rules in order to improve enforcement. However the experience gained through the Communications on "serious infringements", from the year 2000 to 2005, has clearly proved that it will not be possible without major adaptations of Community legal texts and of national procedures.

As regards legal texts, following its commitment to improve the content of the document, as recorded in the previous Communications, the Commission has been holding consultations with Member States in order to collect their suggestions. The debate highlighted that one fundamental issue concerns the definition of the behaviours which seriously infringe the CFP rules: it is generally felt that the types listed in the Community legal texts are not sufficiently specific, a situation which leads to different interpretations amongst Member States

With a view to addressing this point, the Commission presented on 31 May 2006 to the Group of Experts on Fisheries Control suggestions on a new typology of infringements to be scrutinised as well as on how the Communication outline could be amended.

The Commission proposed in particular:

- to narrow the scope of the Communication by monitoring exclusively the infringements of those CFP rules deemed to be the most important amongst the "serious" ones. Infringements of national rules or committed by non-professional fishermen will not be recorded anymore;

- to better describe each type of infringement; and

- to broaden the content of the reports from Member States which will in particular include information on the socio-economic situation of the lawbreakers and on the effective impact of the sanctions imposed.

The Commission will continue discussing the matter with Member States prior to a formal proposal for a revision of the legal framework, in particular within the context of the recasting of Community legislation relating to control in the fisheries area and to the fight against illegal fishing practices . Meanwhile, the Commission has to insist that it is necessary that Member States provide the Commission with information which goes beyond the statistical data in order to improve the quality of the next Communication and to make it become a more useful instrument of transparency.

As regards the Member States' responsibilities, the Commission shall again call upon them to give appropriate consideration to the obligation to ensure compliance with CFP rules with all possible means. The Commission has to state that Member States do not fulfil all their obligations arising from the CFP rules. One example will suffice: the Member States are currently not properly equipped with the suitable means which would allow them to collect, process and assess data related to "serious infringements" of the CFP rules, as they should do. Member States have not set up databases for encoding relevant aspects relating to each single case. The Commission would like to insist on this point. Without a computerized database comprising information pertaining, to the law breaker, the vessel or the enterprise, the legal provisions, the species and fisheries areas, the economic context, the administrative costs, the main and ancillary sanction inflicted; it will not be possible to properly assess behaviours, administrative performance and efficacy of legislation in force. Only through processing these data and those contained in the databases already foreseen by Community law (such as Fleet register, statistics, VMS records), it would be possible to assess Member States' performance, compare them and eventually adjust administrative procedures and legislative texts, so that CFP rules would be effectively enforced.The Commission has already suggested a format to be used by national administration to that purpose[9]. It is ready to assist the Member States, also financially through existing budget lines, to set up new tools.The Commission urges member States to adapt their legislation and administrative organisation accordingly.

List of tables in annex

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

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

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

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

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

VI number of licences withdrawn by type of infringement and by Member State;

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

VIII average fine in each Member State as a consequence of serious infringements and value of landings in each Member State;

IX. draft form for a set of information relating to a "serious infringement".

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ANNEX IX

FORM TO BE FILLED IN BY MEMBER STATES

N° file |

Data relating to the breach Code of the breach : Legal provisions : Fleet register number : * Vessel owner : * Captain name : * Carrier name : * Corporate name : … File linked to file n : * Codes such VAT number may be used |

Data relating to the procedure Authority which established the record : Place and date of the record : Reference to the legislation : Authority responsible for the procedure : Type of procedure : administrative criminal Date of final decision : Date of the execution of the decision : |

Data relating to the decision Amount imposed € : Suspension of professional entitlement months Seize of catches value € Seize of gears value € Value of catches illegally caught/sold value € Decision published newspaper |

Data relating to main species concerned and area where infringement occurred Codes FAO and ICES RFO responsible Recovery plan concerned |

Data relating to economic and social aspects Length of the vessel : > 10 mt; > 15 mt > 24 mt, > 40 mt Annual turnover of the enterprise Number of employees Community funding Risk of bankruptcy |

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

[2] Art. 25 R. 2371/2002

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

[4] COM (2001) 650, 12.11.2001

[5] COM (2002) 687, 05.12.2002

[6] COM (2003) 782, 15.12.2003

[7] COM (2005) 207, 30.05.2005

[8] COM (2006) 387, 14.07.2006

[9] See Annex IX.