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 2002

1. introduction

Council Regulation (EC) N° 1447/1999 [1] introduced a list of types of behaviour which seriously infringe the rules of the Common Fisheries Policy. The breaches included in the list are linked to the most important obligations imposed by the Community rules on stock conservation, monitoring and the marketing of fisheries products. Similar lists have been adopted by Regional Fisheries Organisations such as NAFO. Because of its seriousness, such behaviours should attract "proportional, effective and dissuasive" penalties imposed by the national authorities.

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

In view to ensure transparency, Member States are requested to report to the Commission of the action taken when breaches are detected. The assessment of this information could enable a comparison between Member States as regards the action initiated against the operators in the fishing industry who may have committed a "serious infringement" as well as the effective and dissuasive character of the penalties eventually imposed. The legislator's goal was to create a level playing field among the fishermen who would therefore have greater confidence in the control authorities throughout the European Community and adhere to Community rules on conservation of fisheries resources.

The procedure for reporting this data to the Commission is laid down in Commission Regulation (EC) N° 2740/1999 [2]. The information which a Member State has to transmit to the Commission for each "serious infringement" uncovered by the national monitoring authorities and having been the subject of an official report, is the nature and details of the offence (date, zone/port, flag/nationality), the type of proceeding initiated (administrative - criminal), the decisions made at different instances and the nature of the penalties imposed (amount of the fine - withdrawal of fishing authorisation - seizure of catches or gears).

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

This Communication refers to data received from the Member States on the cases of behaviours which seriously infringed the rules of the CFP and for which a proceeding has been opened in 2002. This is the third Communication of its kind. The Commission presented the relevant data for 2000 in its Communication of 12 November 2001 [3] and for 2001 in its Communication of 5 December 2002 [4]. It is not in the present document that the Commission wishes to give its comments on the compliance of the Member States to the CFP rules or on the accuracy of the reports on behaviours which seriously infringe the CFP rules submitted by Member States. It reserves to do so in the forthcoming "Report on the monitoring of the implementation of the Common Fisheries Policy".

[3] COM(2001) 650, 12.11.2001

[4] COM(2002) 687, 05.12.2002

2. reports from member states for 2002

The Member States were required to send to the Commission, not later than 31 March 2003, their report on cases discovered in 2002. In order to allow easier processing of data, this transmission should be made by electronic means and in conformity with the electronic format presented by the Commission at the meeting of the Expert Group on Monitoring and Control on 21 February 2001 (working paper: FIDES II Message Definition [5]).

[5] FIDES: Fisheries Information Data Exchange System

Furthermore, in order to avoid certain technical problems which came to light during the processing of data received from the Member States in the previous years, with the result that some reports could only be partially examined, a letter was sent to all Member States on 6 March 2003 inviting them to take into account the following rules:

- the data on infringements in respect of which proceedings were closed in 2002, but initiated in 2000 or 2001, should be transmitted separately from the data on infringements in respect of which proceedings were initiated in 2002;

- where administrative or legal action is taken by a Member State other than the Member State which detected the infringement, it is the former which must indicate the infringement in its report;

- the CIEM/ICES codes and, where not available (e.g. in the Mediterranean), the FAO codes should be used in order to indicate the area where the infringement was committed. If the infringement took place in territorial waters, it is sufficient to indicate "territorial waters". If the infringement was committed in waters falling within the domain of a regional fishery organisation, reference must be made to that organisation;

- the NUTS [6] 3 code should be used in order to indicate the harbour where an infringement has eventually been recorded;

[6] NUTS: Nomenclature of Territorial Units for Statistics

- where more than one infringement has been recorded with respect to the same behaviour, it would be preferable to initiate separate proceedings in order to allow a more precise calculation of the average fine. If that is not possible for practical or legal reasons, these cases should be referred to the Commission .

Moreover, the Member States were invited to provide, in addition to what is requested by the Commission Regulation, some supplementary information which will allow a more detailed analysis of the situation in the Community. To this end, the Member States were asked to indicate in a separate note:

- the national provisions on the types of serious infringement listed in Regulation (EC) No 1447/99, with an indication of the sanctions provided for (including the range of the fine and the possibility of catches and/or gear being confiscated);

- the legal value and legal basis of verbal and written warnings;

- the total number of vessels inspected in 2002, at sea and in harbours;

- the total number of undertakings and fish auction centres inspected in 2002;

- the species most affected by infringements (using the FAO code);

- the average duration of administrative and/or legal proceedings from the time when they are initiated until the end of the proceeding;

- the legislative measures adopted or proposed in 2002 to make controls more effective.

Unfortunately, the great majority of Member States neither respected the deadline laid down by the Community legislation nor completely followed the invitations concerning codes (see Annex I for details). Moreover, only Belgium, Denmark, France, Portugal, the United Kingdom and partially Spain provided the supplementary information that the Commission requested. These elements are mentioned in the chapter dedicated to each of these Member States.

It is worth noting that the Commission has drawn up the annexed tables exclusively on the basis of data provided by the Member States, in conformity with Regulation (EC) N° 2740/99 and included in its comments, whenever possible, information that could be acquired otherwise.

According to data submitted, the situation in each Member State can be summarised as follows:

2.1. BELGIUM

Belgium discovered and reported 49 cases of serious infringement covering 6 types of behaviour. Twenty four cases concerned vessels flying the Belgian flag or involved Belgian fishermen; for 19 cases, the flag or the nationality were not specified. The majority (21 cases) concerned the falsifying of data required in the control documents [E1]. Twelve infringements were discovered in ports. Criminal proceedings were initiated in all cases and penalties imposed in 31 cases. The average fine was EUR 1 143, concerning in fact only two types of behaviour, the tampering with the VMS [E2], for which the fine was EUR 1 500 and the falsifying of the data required in the control documents [E1] for which the average fine was EUR 1 083. Belgium in addition ordered the seizure of catches or gear in 10 cases but no licence withdrawals were reported.

The Belgian legislation foresees various kinds of fines (from EUR 100 x 5 to EUR 100 000 x 5) and imprisonment (from 15 days to 5 years) to sanction an infringement with respect to fisheries. This penalty may be doubled where there are aggravating circumstances (recurrence, infringement committed at night, refusal to undergo an inspection). Where the offence is detected while it is committed, the catches and gears may be confiscated and the vessel may be seized and detained.

Written warnings must specify the nature of the infringement and the period within which the party concerned is to remedy the situation, and must state that, in the event of a recurrence or failure to act upon the warning, an official report will be drawn up. Oral warnings have the same value as any information and may be used to illustrate the obstinacy of the culprit. They may be taken into account by the court handling the matter when inflicting the sanction.

During 2002, 159 vessels were inspected at sea, 205 vessels were sighted from air and 345 vessels were inspected at port.

Sole, plaice, cod, anglerfish, turbot and blue ling were the species more affected by infringements in 2002.

When an infringement takes place, a criminal proceeding is conducted very swiftly. Administrative proceedings are not foreseen.

No new legislative measure with respect to fisheries control was adopted in 2002.

2.2. DENMARK

Denmark discovered and reported 442 serious infringements (415 concerning vessels flying the Danish flag or involving Danish fishermen, 26 concerning vessels flying the flag of other Member States or involving other Member States' nationals and 1 from a third country). These breaches cover 15 types of behaviour. The two main types of infringement were the falsifying of data required in the control documents [E1] (183 cases) and the use or holding on board of prohibited gear [D1] (95 cases). 339 infringements were discovered ashore. Administrative proceedings were initiated in 215 cases, criminal proceedings in 128 cases and joint administrative and criminal proceedings in 59 cases. Penalties were imposed in 319 cases. The average fine was EUR 622 and ranged from EUR 3 354 for unauthorised fishing [D5] to EUR 393 for the falsifying of the data required in the control documents [E1]. In addition, Denmark ordered the seizure of catches or gear in 34 cases and a licence withdrawal in 111 cases, above all for the use or holding on board of prohibited gear [D1] (82 cases).

In conformity with the Danish legislation, sanctions may be imposed in the form of fines and of confiscation of illegal catches or illegally used fishing gear.

A caution is a fixed method for settling criminal cases and is issued by the police or by the courts. Danish fisheries control can issue reprimands (usually oral) or recommendations. This form of settlement occurs in cases where the infringement of a rule can be proven to be less significant or where the control authority deems a fine to be disproportional to the offence. In such cases the caution is generally written.

In 2002, 809 inspections at sea and 379 ashore were carried out. 3 439 inspections were carried out on edible fish at port and 1 669 landings of fish intended for industrial processing were inspected. A total number of 2 347 inspections of enterprises and fish auctions were carried out.

No statistics of species of fish most frequently affected by infringements are made available by the Danish authorities.

When licences are withdrawn under the administrative procedure, there is an average delay for reaction of two or three days from the recording of the infringement to the date of settlement. Where the licence holder opts for a court trial, it takes one to two years, but this does not mean that the withdrawal is suspended.

In 2002, the rules on the retention of foreign vessels (including vessels from other Member States) were made specific, and the possibility was introduced of penalising, by means of fines, infringements to rules concerning fish auctions and first-time fishing operations. Moreover, the requirements on satellite monitoring of fishing vessels were tightened up, so that the captain of a fishing vessel must suspend his fishing when it can be demonstrated that the equipment does not function, unload his gear and sail to a given port in order to repair the equipment. As an exception to the above, the vessel may be allowed to finish its trip when the vessel activity can be monitored otherwise as the captain accepts to submit a manual report on his position at least every half hour.

2.3. GERMANY

Germany discovered and reported 118 serious infringements covering 8 types of behaviour. All cases concerned vessels flying the German flag or involved German fishermen. The majority (56) concerned the falsifying of the data required in the control documents [E1]. All cases were subject to administrative follow-up and penalties were imposed to 101 cases. The average fine was EUR 820 and ranged from EUR 83 for falsifying, deleting or concealing the identification marks of the vessel [C3] to EUR 3 962 for fishing without holding an authorisation [C1]. No seizures or licence withdrawals were reported by Germany.

2.4. GREECE

Greece discovered and reported 1 021 serious infringements (1 018 concerning vessels flying the Greek flag or involving Greek fishermen) covering 10 types of behaviour. The majority (648 cases) concerned the use of prohibited fishing methods [D2]. 1 003 cases were subject to administrative follow-up and 18 cases to joint administrative and criminal proceeding. In 1 012 cases, Greece imposed penalties. The average fine in 897 cases was EUR 678 and ranged from EUR 300 for fishing using falsified documents [C2], for falsifying the identification marks of fishing vessels [C3] and for directed fishing for, or keeping on board of, a prohibited species [D4] to EUR 1 200 for failure to stow unauthorised gear [D3]. Greece ordered seizures of gear or catches in 980 cases and licence withdrawals in 560 cases (above all, in both cases, for using prohibited fishing methods [D2]).

2.5. SPAIN

Spain discovered and reported 1 785 serious infringements (1 295 concerning vessels flying the Spanish flag or involving Spanish fishermen, 185 concerning vessels flying the flag of other Member States or involved other Member States' nationals, 34 from a third country and, for 271 cases, the flag or the nationality are not specified) covering 13 types of behaviour. The two main types were fishing without holding a licence or another authorisation [C1] (445 cases) and unauthorised fishing [D5] (375 cases). 780 infringements were discovered at ports. Administrative procedures were applied in 1 614 cases and a penalty was imposed in all these cases. The average fine was EUR 2 126 ranging from EUR 105 628 for failure to stow unauthorised gear [D3] to EUR 545 for fishing using falsified documents [C2]. In addition, Spain ordered the seizure of catches or gear and the licence withdrawals in all these cases.

The main penalty applied by Spain is the fine ranging from EUR 301 to EUR 60 000 for serious infringements and from EUR 60 001 to EUR 300 000 for very serious infringements. The supplementary penalties applied are, for the serious infringements, the suspension of the exercise of fishing activities for a period not exceeding three years, the seizure of fishing gear or of the catches and the suspension, withdrawal or non-renewal of authorisations for a period not exceeding three years; for the very serious infringements, the suspension of the exercise of fishing activities for a period not exceeding five years, the seizure of fishing gear or of the catches, the suspension, withdrawal or non-renewal of authorisations for a period not exceeding five years, the suspension from loans, grants and public aid for a period not exceeding five years and the seizure of the vessel. These penalties may be imposed only following an administrative act culminating in an administrative resolution recording the penalty which is enforceable. The maximum duration of the administrative procedure is six months.

2.6. FRANCE

France discovered and reported 288 serious infringements covering 14 types of behaviour (222 concerned vessels flying the French flag or involved French fishermen, 59 concerned vessels flying the flag of other Member States or involved other Member States' nationals and for 7 cases, the flag or the nationality were not specified). The majority (88) concerned the failure to observe the rules on minimum sizes [D6]. 94 infringements were discovered in ports. 20 cases were subject to administrative follow-up and 203 to criminal proceeding. Penalties were imposed in 139 cases. The average fine was EUR 2 367 and ranged from EUR 206 for falsifying the data required in the control documents [E1] to EUR 7 563 for using or holding on board of prohibited gear [D1]. France also ordered the seizure of gear or catches in 84 cases and the licence withdrawal in only one case for failure to observe the rules on minimum sizes [D6].

The penal procedure may entail, when provided for by the law, the seizure of obtained captures, of the gear or even of the vessel.

The written warning drawn up by the Public Prosecutor notes the failure to comply with a rule, the gravity of which does not justify penal prosecution. A later repetition of the offence recorded in the written warning, makes it possible to aggravate the sanction.

More than 2 200 vessels were inspected (on board) in waters under the jurisdiction or sovereignty of France by the maritime services, control bodies or other entities and more than 500 by the customs services. It has not been possible to quantify the number of vessels inspected by the national or departmental coastguards.

13 860 vessels were identified by aerial means.

Approximately 2 700 inspections were carried out during landing.

More than 33 500 inspections were carried out at the sales stage.

The species most concerned by infringements are: hake, plaice, anglerfish, cod, scallops, mackerel.

The duration of the procedures varies according to their type, which can differ on the grounds of whether the defendant is a French national or not .

At the beginning of 2003, the Directorate of Fisheries and Aquaculture adopted an administrative order laying down rules with regard to the control of the mesh size and of the diameter of the wires of the fishing gear at sea.

2.7. IRELAND

Ireland discovered and reported 26 serious infringements covering 8 types of behaviour, the main one being falsifying data in control documents [E1] (13 cases). 20 cases concerned vessels flying the Irish flag or involved Irish fishermen and 6 concerned vessels flying the flag of other Member States or involved other Member States' nationals. Criminal proceedings were initiated in 20 cases and penalties were imposed in 13. The average fine was EUR 11 978 and varied widely from EUR 23 125 for directed fishing for, or the keeping on board of, an unauthorised species [D4] to EUR 4 600 for the landing of products not complying with the control rules [F1]. Ireland reported 7 cases of seizure of gear or catches but no cases of withdrawal of a licence.

2.8. ITALY

Italy discovered and reported 1 074 serious infringements (2 concerning vessels where the flag country was not indicated) involving 14 types of behaviour. The two main types were unauthorised fishing [D5] (479 cases) and fishing without holding a licence or another authorisation [C1] (156 cases). 926 infringements were discovered in ports. In 112 cases an administrative procedure was launched, in 7 cases criminal proceedings and in 1 case both criminal and administrative procedures. Penalties were imposed in 1 025 cases. The average fine in 791 cases was EUR 1 691 and ranged from EUR 2 186 for unauthorised fishing [D5] to EUR 61 for falsifying of the data required in the control documents [E1]. In addition, Italy ordered the seizure of catches and gear in 611 cases, including 276 cases of unauthorised fishing [D5] and 105 of using or holding on board of prohibited gear [D1]. No licence withdrawals were reported.

2.9. LUXEMBOURG

Luxembourg has neither fishing activities nor fisheries processing industry.

2.10. THE NETHERLANDS

The Netherlands discovered and reported 122 serious infringements (101 concerning vessels flying the Dutch flag or involving Dutch fishermen) covering 7 types of behaviour. The majority (49 cases) concerned the falsifying of the data required in the control documents [E1]. 97 infringements were discovered ashore. 122 cases were subject to criminal proceeding. In 67 cases, The Netherlands imposed penalties. The average fine in 33 cases was EUR 1 727, and ranged from EUR 310 for using prohibited fishing methods [D2] to EUR 5 590 for using or holding on board of prohibited gear [D1]. 50 seizures of gear or catches were reported by The Netherlands. No licence withdrawals were reported.

2.11. AUSTRIA

Austria reported no case of serious infringement.

2.12. PORTUGAL

Portugal discovered and reported 1 579 serious infringements (1 560 concerning vessels flying the Portuguese flag or involving Portuguese fishermen, 17 concerning vessels flying the flag of other Member States or involved other Member States' nationals and 2 from a third country) covering 11 types of behaviour (for 5 cases, the type is not specified). The two main types were fishing without holding a licence or another authorisation [C1] (420 cases) and unauthorised fishing [D5] (357 cases). Administrative procedures were applied in 1 437 cases and criminal proceeding in only 3 cases. The number of penalties imposed totalled 550. The average fine was EUR 491 ranging from EUR 139 for falsifying the identification marks of fishing vessels [C3] to EUR 1 232 failure to meet marketing standards [F2]. In addition, Portugal ordered the seizure of catches or gear in 207 cases. No licence withdrawals were reported.

The legal value of notices/warnings is in keeping with the twofold aim of prevention and deterrence.

In 2002, 2 624 vessels were inspected at sea and 4 683 vessels were inspected at port; 880 inspections at fish auction centres and 1 728 within other entities (municipal markets, storage depots, retail outlets, supermarkets, restaurants, vehicles) were carried out.

Hake and horse mackerel were the species more affected by infringements in 2002.

An administrative proceeding needs on average 10 months to go through.

No new legislative measure in respect of fisheries control was adopted by Portugal in 2002.

2.13. FINLAND

Finland discovered and reported 2 serious infringements, both concerning vessels flying the Finnish flag or involving Finnish fishermen and covering only 1 type of behaviour, namely the falsifying of data required in the control documents [E1]. Both infringements were discovered ashore. Administrative proceedings were initiated in both cases but a penalty was imposed in only 1 case. The fine was EUR 420. No seizure or licence withdrawals were reported by Finland.

2.14. SWEDEN

Sweden discovered and reported 125 serious infringements (108 cases concerning vessels flying the Swedish flag or involving Swedish fishermen) covering 10 types of behaviour. The two main types were fishing without holding a licence or other authorisation [C1] (55 cases) and falsifying of the data required in the control documents [E1] (27 cases). Criminal proceedings were initiated in 35 cases and penalties imposed in 6 cases. The average fine was EUR 536 and ranged from EUR 100 for unauthorised fishing [D5] to EUR 741 for falsifying the data required in the control documents [E1]. No seizure or licence withdrawals were reported by Sweden.

2.15. UNITED KINGDOM

United Kingdom discovered and reported 125 serious infringements without specifying the flag of the vessels or the nationality of the fishermen. These cases covered 9 types of behaviour. The majority of cases (89) concerned the falsifying of the data required in the control documents [E1]. Criminal proceedings were initiated in 114 cases and administrative proceedings in 11 cases. Penalties were imposed in all reported cases. The average fine was EUR 8 795 and ranged from EUR 1 999 for using prohibited fishing methods [D2] to EUR 31 980 for tampering with the VMS [E2]. No seizure or licence withdrawals were reported by the United Kingdom.

Verbal and written warnings can be given for minor transgressions. Written warnings are also issued in respect of more serious transgressions where prosecution may not be in the public interest because of the scale of the offence and of insufficient evidence.

In 2002, the number of vessels inspected at sea was 2 426 and 9 980 at harbour. The number of undertakings (processing factories, supermarkets and merchant premises) and fish auction centres inspected was 2 772.

The species most affected by serious infringements were: cod, haddock, saithe, whiting, mackerel, herring, Norway lobster, anglerfish, hake, megrim, plaice, scallops and sole.

No details are available as regards to the duration of proceedings.

In 2002 a consultation took place with the fishery industry on a new scheme for the registration of first sale fish traders. A further round of consultation is scheduled to take place in 2003.

3. serious infringements compared to number of fishing vessels in member states

The following table indicates, for each Member State, the number of vessels included in the Fishing Vessel Register on 1 January 2003 together with the total number of serious breaches discovered and reported by the Member States. It is appropriate to stress that all cases of infringements reported do not necessarily concern fishing vessels.

>TABLE POSITION>

4. observations on the reports submitted by the member states

Member States reported a total number of 6 756 cases of serious infringements covering all types of breaches included in the list of Council Regulation (EC) N° 1447/1999. The number of the breaches detected is thus less than in the previous two years (7 298 in 2000 and 8 139 in 2001).

As in previous years, almost half of the reported cases concerns unlawful fishing either without authorisation [C1] or in prohibited areas [D5]. By order of importance, a considerable number of infringements was reported as regards the use of prohibited fishing methods [D2] and the falsifying of the data required in the control documents [E1]. On the other hand, very few cases were reported as regards obstructing the work of observers [B1], falsifying, destroying or tampering with evidence [A2] and failure to comply with the rules relating to transhipment [D7].

The great number of breaches was done by the national vessels of the reporting Member State. Only 5% of cases concerned vessels of a Member State other than the reporting one and less than 1% concerned third countries' vessels.

2 250 infringements were discovered at ports and mostly in Spain and Italy.

In terms of procedure, in the majority of cases an administrative procedure was launched. Belgium, Ireland, The Netherlands and Sweden exclusively applied a criminal proceeding whenever an infringement was discovered.

74% of infringement procedures were concluded with the application of a penalty. In Greece and the United Kingdom, respectively 99% and 100% of infringements were sanctioned; on the other hand, in Sweden, only 5% of infringements were sanctioned. It cannot be excluded that these figures include to a certain extent procedures which were initiated during previous years but not finalised until 2002.

When comparing fines imposed on fishermen, there are still striking differences between Member States. For the same type of infringement, the level of fine varies from one Member State to another.

For example,

* for fishing without holding a licence or other authorisation [C1], the average fine was EUR 384 in Greece and EUR 21 400 in Ireland;

* for unauthorised fishing [D5], the average fine was EUR 100 in Sweden and EUR 3 354 in Denmark;

* for falsifying data required in the control documents [E1], the average fine was EUR 61 in Italy and EUR 9 148 in the United Kingdom.

In general, the average fine applied in Finland was EUR 420 and in Ireland EUR 11 978. The average fine allows to calculate the amount paid by the fishery industry of each Member State as a consequence of a serious breach (see Annex X). It is worth noting here that Regulation (EC) N° 1447/99 does not indicate any ranking between the 19 types of breaches as regards to their gravity.

The average fine imposed in the proceedings that ended with a penalty amounts to 1 757 EUR which is close to the amount of the previous year. Furthermore, in 3 597 cases the seizure of catches or gears was ordered. Greece, Spain and Italy were the Member States which reported to have applied this measure in a significant number of cases. On the other hand, Germany, Finland, Sweden and the United Kingdom reported no seizure of catches or gears.

As regards licence withdrawals, it appears that Greece, Spain and to a lesser extent Denmark systematically applied this type of penalty. In total, 2 286 cases of serious infringements were sanctioned with licence withdrawals.

It is apparent that both the seizure of catches/gears and withdrawal of licences have a significant economic impact on the fishing enterprises. It is therefore unfortunate that for the time being it is not possible to establish a precise evaluation.

With regard to the number of vessels included in the Fishing Vessel Register on 1 January 2003 (90 342) and the number of infringements for which penalties were imposed (5 003), it entails that procedures were launched in respect of 5,5% of the fleet. This percentage is actually somewhat smaller since some procedures which cannot be numbered, refer to on-shore operators.

5. general comments on findings

The Commission's services are undergoing a survey on the sanctions provided by national legal systems with regard to fishing activities. The following comments are essentially based upon their findings which are, at this point in time, definitive.

Social and economical factors like the value of the catches landed and the dissimilar standards of living of the fishermen within and between Member States, are often used to justify the difference in the level of fines imposed by the different Member States and between their different authorities. The fact that the procedure followed by the authorities is a criminal or an administrative one, does not seem to have a significant impact on the level of the fines. On the other hand, it can be said that the judiciary, and to a considerable extent the prosecuting authorities, are not sufficiently aware or sensitive to the seriousness of fisheries offences. With heavy case loads, prosecutors and courts are unlikely to give priority to these cases, which results in lower penalties and longer handling times. Where good results have been achieved, and where there is good co-operation between authorities, it is invariably due to hard work and dedication, not least on the part of the inspection and investigation authorities.

Moreover, some Member States tend not to include the economic benefit from the infringement as a criteria for the determination of the level of the fine. The economic situation of the offender generally appears to be a much more important factor. In a number of Member States there are possibilities to proceed with sanctioning in a simplified way, either through compounding (normally through the intervention of a prosecutor), through payment order issued by the police/inspection authorities or through voluntary payment. While these simplified procedures can improve the speed of the process, the fines often do not act as a deterrent.

It must be noted that the seizure of catches or gears is still not generally applied, in spite of the fact that these kinds of sanctions may be more effective. The lack of confiscation/forfeiture in combination with a fine that does not even match the economic benefit will have as a result that the sanctions imposed lack all deterrent value. However, in some Member States there is confiscation of both catch and gear, which in combination with the fine will result in very severe penalties.

As regards the possibility to withdraw fishing authorisations, although most Member States already have the legal basis for withdrawing licenses, only three of them apply it (Denmark, Greece, Spain). There seems to be a general resistance to this type of measure, often with reference to human rights issues (the right to make a living), the complex and lengthy procedures involved and the severity of the measure.

The large use of written or even oral warnings, is a matter of concern since their purpose is vague, they are not always recorded and are of little help in the action to discourage infringements.

In some cases, there are indications which suggest that the Member States have a tendency to be more severe with foreign vessels and national vessels with foreign owners.

6. final remarks

As for the previous Communications on the breaches which seriously infringe the rules of the CFP, it must be noted that information gathered is of no easy interpretation since it exclusively consists of sets of figures. When the Member States do not provide the Commission's services with more detailed information which can shed some light on the figures, it is hard to correctly assess the situation.

Moreover, there are indications that the data submitted to the Commission in the context of serious infringements are flawed. In some cases it appears that the number of infringements reported may include recreational fishery and other fishing activities that are not covered by the Common Fisheries Policy. As for the average fines, there are cases where the reported levels probably include confiscation values, which should have been reported separately. There are also indications that there are instances where the outcome of a case goes unreported because the finalisation of the case does not intervene in the same year as the detection of the infringement.

Moreover the accuracy of data collected varies greatly even within the same Member State. For instance, this could be the case when the responsibilities are highly decentralised or when responsibilities are split between different authorities with different organisational structures. There also seems to be a general problem with feedback regarding the outcome of cases, especially from the judiciary, which can lead to reduced reliability of the statistics.

Furthermore, since the Member States do not always use the right codes to the infringement or do not fill correctly the form provided for in Annex I of the Regulation (EC) N° 2740/99, the set of data transmitted cannot be fully exploited. The Commission therefore insists on the need to adhere to the requirements.

Bearing in mind all these shortcomings, the Commission underlines, as a general remark, that the level of sanctions as it appears from the tables annexed to the present Communication, is not yet satisfactory since sanctions do not seem to have a dissuasive effect. To prove it, it will be sufficient to compare the amounts paid by the fisheries industry as a consequence of a sanction (see Annex X) to the landing value : it is roughly one thousandth of the 2001 landing value. The decrease of the number of proceedings opened for breaches of CFP rules in comparison with previous years is also a matter of concern and justification shall be sought.

The Council restated last December, when adopting Regulation n°2371/2002, its commitment to act against those responsible of serious infringements by imposing sanctions proportionate to the seriousness of such infringements hence effectively discouraging to continue to breach the rules. The present report shows that more has to be done in order to put the political will into acts.

In order to comply with the Community rules, each Member State must ensure that its penalties shall be deterrent. Furthermore, Member States must apply or extend the application of other measures like the seizure of catches and gears and the withdrawal of the fishing authorisations. The Commission also recommends initiatives aimed at enhancing awareness of judges and public prosecutors on the need to effectively pursue illegal fishing in order to obtain compliance with the rules designed for the exploitation of marine resources. To this end, the Commission is ready to assist the Member States in adopting measures designed to achieve these objectives.

Finally, as it is laid down in Article 25(4) of the Regulation n°2371/2002, the Commission will propose in due time to the Council a catalogue of sanctions relating to serious infringements of CFP rules. The catalogue is designed to promote compliance with these rules through dovetailed sanctions which shall be applied with similar severity throughout the Community. This will undoubtedly help national authorities to dispel misgivings among its fishermen, create the level playing field which is a condition for the deployment of a fair fishing activity and thus promote more respectful behaviours as regards to the CFP rules.

list of tables

* information transmission dates (Annex I);

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

* number of cases discovered by nationality of the party which committed the infringement and by Member State (Annex III);

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

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

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

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

* number of licence withdrawals by type of behaviour and by Member State (Annex VIII);

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

* amount paid by the fishery industry in each Member State as a consequence of serious infringements (Annex X).

ANNEX I

>TABLE POSITION>

ANNEX II

NUMBER OF SERIOUS INFRINGEMENTS BY MEMBER STATE IN 2002

>TABLE POSITION>

ANNEX III

INFRINGEMENTS BY COUNTRY AND BY NATIONALITY IN 2002

>TABLE POSITION>

ANNEX IV

TYPE OF PROCEDURE INITIATED (*) BY TYPE OF SERIOUS INFRINGEMENT AND BY MEMBER STATE IN 2002

>TABLE POSITION>

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

ANNEX V

NUMBER OF CASES WHERE PENALTIES WERE IMPOSED AND NUMBER OF INFRINGEMENTS BY TYPE OF BEHAVIOUR AND BY MEMBER STATE IN 2002

>TABLE POSITION>

* in brackets, the number of cases discovered

ANNEX VI

AVERAGE FINE AND NUMBER OF INFRINGEMENTS BY TYPE OF BEHAVIOUR AND BY MEMBER STATE IN 2002

>TABLE POSITION>

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

ANNEX VII

NUMBER OF SEIZURES AND NUMBER OF INFRINGEMENTS BY TYPE OF BEHAVIOUR AND BY MEMBER STATE IN 2002

>TABLE POSITION>

* in brackets, the number of cases discovered

ANNEX VIII

NUMBER OF LICENCE WITHDRAWALS AND SERIOUS INFRINGEMENTS BY MEMBER STATE IN 2002

>TABLE POSITION>

>TABLE POSITION>

ANNEX IX

NUMBER OF SERIOUS INFRINGEMENTS BY FISHING PORT IN 2002

>TABLE POSITION>

ANNEX X

AMOUNT PAID BY THE FISHERY INDUSTRY IN EACH MEMBER STATE AS A CONSEQUENCE OF SERIOUS INFRINGEMENTS

>TABLE POSITION>