Council Regulation (EC) No 812/2004 of 26.4.2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98
Date: 2004-04-26
Institutions: Council of the European Union
Subjects: Baltic Sea, fishing controls, fishing net, marine mammal, protection of animal life

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COUNCIL REGULATION (EC) No 812/2004 

of 26.4.2004

laying down measures concerning incidental catches 

of cetaceans in fisheries and amending Regulation (EC) No 88/98 

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Article 37 

thereof, 

Having regard to the proposal from the Commission, 

Having regard to the Opinion of the European Parliament 1, 

1

Opinion delivered on 10.2.2004. 

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Whereas: 

(1) The objective of the Common Fisheries Policy, as defined in Article 2 of Council 

Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable 

exploitation of fisheries resources under the Common Fisheries Policy 1, is to ensure

exploitation of living aquatic resources that provides sustainable economic, environmental 

and social conditions.  To this end, the Community should, among other things, minimise the 

impact of fishing activities on marine ecosystems, and the Common Fisheries Policy should 

be consistent with other Community policies, in particular with environmental policy.

(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of 

wild fauna and flora 2 gives strict protection status to cetaceans and requires Member States to 

undertake surveillance of the conservation status of these species. Member States should also 

establish a system to monitor the incidental capture and killing of these species, to take further 

research and conservation measures as required to ensure that incidental capture or killing 

does not have a significant impact on the species concerned. 

(3) The scientific information available and the techniques developed to reduce incidental capture

and killing of cetaceans in fisheries justify additional measures being taken to further the 

conservation of small cetaceans in a consistent and cooperative manner at Community level. 

1

2

OJ L 358, 31.12.2002, p. 59. 
OJ L 206, 22.7.1992, p. 7.  Directive as last amended by Regulation (EC) No 1882/2003 of 
the European Parliament and of the Council (OJ L 284, 31.10.2003, p. 1). 

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(4)

Some acoustic devices have been developed to deter cetaceans from fishing gear, and have 

proven successful in reducing by-catch of cetacean species in static net fisheries.  The use of 

such devices should therefore be required in areas and fisheries with known or foreseeable 

high levels of by-catch of small cetaceans, and taking into account the cost/efficiency of such 

requirement.  It is also necessary to establish the technical specifications for the efficiency of 

the acoustic deterrent devices to be used in such fisheries.  Scientific studies or pilot projects 

are needed to increase knowledge about the effects over time of the use of acoustic deterrent

devices. 

(5)

Scientific and technical research, in particular on new forms of active deterrent devices, 

should not be hindered by this Regulation. While Member States should, therefore, be

allowed, for the purpose of this Regulation, to authorise the use of newly developed and 

efficient types of acoustic deterrent devices not in conformity with the technical  

specifications laid down in this Regulation on a temporary basis, it is also necessary to

provide for technical specifications of acoustic deterrent devices to be brought up to date 

as soon as possible in accordance with Council Decision No 1999/468/EC laying down the 

procedures for the exercise of implementing powers conferred on the Commission 1. 

1

OJ L 184, 17.7.1999, p. 23. 

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(6)

Independent observations of fishing activities are essential to provide reliable estimates of the 

incidental catch of cetaceans.  It is therefore necessary for monitoring schemes with 

independent on-board observers to be set up and for the designation of the fisheries where 

such monitoring should be given priority to be coordinated. In order to provide representative 

data on the fisheries concerned, the Member States should design and implement appropriate 

monitoring programmes for vessels flying their flag engaged in these fisheries. For small-

sized fishing vessels less than 15 m overall length, which sometimes are unable to allow an 

additional person permanently on board as an observer, data on incidental catches of 

cetaceans should be collected through scientific studies or pilot projects. Common monitoring 

and reporting tasks also need to be set.  

(7)  To enable regular evaluation at Community level and thorough assessment in the medium 

term to take place, the Member States should report annually on the use of pingers and the 

implementation of the on-board observer programmes and include all information collected 

on the incidental capture and killing of cetaceans in fisheries. 

(8) The risk created by driftnet fishing to the critically endangered population of harbour porpoise 

in the Baltic Sea area requires the use of driftnets in this area to be stopped.  Community 

vessels which fish with driftnets in this area will be subject to economic and technical 

constraints necessitating a phasing-out period before a total ban on this gear by 

1 January 2008. Council Regulation (EC) No 88/98 of 18 December 1997 laying down 

technical measures for the conservation of fishery resources in the waters of the Baltic Sea, 

the Belts and the Sound 1 should be amended to incorporate these measures, 

HAS ADOPTED THIS REGULATION: 

1

OJ L 9, 15.1.1998 p.1. Regulation as last amended by Regulation (EC) No 48/1999, (OJ L 13, 
18.1.1999, p. 1). 

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Article 1

Subject-matter 

This Regulation lays down measures aimed at mitigating incidental catches of cetaceans by 

fishing vessels in the areas indicated in Annexes I and III. 

Article 2

Use of acoustic deterrent devices  

1.   Without prejudice to other Community provisions, it shall be prohibited for vessels of 12 m 

or over in overall length to use the fishing gear defined in Annex I in the areas, for the periods, and 

as from the dates indicated therein without the simultaneous use of active acoustic deterrent

devices. 

2.   The masters of the Community fishing vessels shall ensure that the acoustic deterrent devices 

are fully operational when setting the gear. 

3.   By way of derogation, paragraph 1 shall not apply to fishing operations conducted solely for the 

purpose of scientific investigation which are carried out with the authorisation and under the 

authority of the Member States or Member States concerned and which aim at developing new 

technical measures to reduce the incidental capture or killing of cetaceans.

4.   Member States shall take necessary steps to monitor and assess, by means of scientific studies 

or pilot projects, the effects of pinger use over time in the fisheries and areas concerned. 

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Article 3

Technical specifications and conditions of use 

1.   Acoustic deterrent devices used in application of Article 2(1) shall comply with one set of the 

technical specifications and conditions of use defined in Annex II. 

2.   By way of derogation to paragraph 1, Member States may authorise the temporary use of 

acoustic deterrent devices which do not fulfil the technical specifications or conditions of use 

defined in Annex II, provided that their effect on the reduction of incidental catches of cetaceans 

has been sufficiently documented.   An authorisation shall be valid for no more than two years. 

3.   Member States shall inform the Commission of the authorisations in accordance with 

paragraph 2 within two months of the date of issue.  They shall provide the Commission with 

technical and scientific information on the acoustic deterrent device authorised and its effects on 

incidental catches of cetaceans. 

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Article 4

At-sea observer schemes 

1.   Member States shall design and implement monitoring schemes for incidental catches of 

cetaceans using observers on board the vessels flying their flag and with an overall length of 15 m 

or over, for the fisheries and under the conditions defined in Annex III.  The monitoring schemes 

shall be designed to provide representative data of the fisheries concerned.

2.   Member States shall take the necessary steps to collect scientific data on incidental catches of 

cetaceans for vessels with an overall length less than 15 m and involved in fisheries defined in 

Annex III paragraph 3 by means of appropriate scientific studies or pilot projects. 

Article 5

Observers 

1.   In order to discharge their obligation to provide observers, Member States shall appoint 

independent and properly qualified and experienced personnel.  In order to carry out their tasks the 

personnel selected must have the following qualifications: 

(a)

sufficient experience to identify cetacean species and fishing practices; 

(b)

basic maritime navigation skills and appropriate safety instruction;

(c)

the capacity to accomplish elementary scientific tasks, for example taking of samples 

where necessary and making accurate observations and records in that connection;

(d)

a satisfactory knowledge of the language of the flag Member State of the vessel being

observed. 

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2.   The task of observers is to monitor incidental catches of cetaceans and to collect the data 

necessary to extrapolate the by-catch observed to the whole fishery concerned.  In particular, the 

observers shall: 

(a)  monitor the fishing operations of the vessels concerned and record the appropriate data on 

fishing effort (gear characteristics, location and timing of beginning and end of effective 

fishing operation); 

(b) monitor incidental catches of cetaceans. 

Observers may also carry out such other observations, as may be determined by Member States, for 

the purposes of contributing to the scientific understanding of the catch composition of the vessels 

concerned and the biological status of fishery stocks. 

3.   The observer shall send a report containing all the data collected on the fishing effort and 

observations on incidental catches of cetaceans, including a summary of his main findings, to the 

competent authorities of the flag Member State concerned. 

The report shall contain in particular the following information for the period in question: 

(a)

the vessel's identity; 

(b) 

the name of the observer and the period during which the observer was on board; 

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(c) 

the type of fishery concerned (including gear characteristics, areas with reference to the 

Annexes I and III and target species); 

(d) 

the duration of the fishing trip and the corresponding fishing effort (expressed as total 

net length x fishing hours for passive gear and numbers of fishing hours for towed gear); 

(e)

the number of incidentally-caught cetaceans, including species and where possible additional 

information on size or weight, sex, age, and, where appropriate, indications on animals lost 

during hauling the gear or released alive; 

(f) 

any additional information the observer deems useful to the objectives of this Regulation, 

including any failure of acoustic deterrent device during a fishing operation, or any additional 

observation on cetacean biology (such as sightings of cetaceans or particular behaviour 

in relation with the fishing operation). 

The master of the vessel may request a copy of the observer's report. 

4.   The flag Member State shall keep the information contained in observer's reports for at least 

five years after the end of the relevant reporting period.

Article 6

Annual reports 

1.   Each year, Member States shall send the Commission, by 1 June, a comprehensive annual report 

on the implementation of Articles 2, 3, 4 and 5 during the previous year.  The first report shall cover 

both the remaining part of the year following the entry into force of this Regulation and the entire 

year that follows. 

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2.   On the basis of the observers' reports provided according to Article 5(3) and all other 

appropriate data, including those on fishing effort collected in application of Council 

Regulation (EC) No 1543/2000 of 29 June 2000 establishing a Community framework for the 

collection and management of the data needed to conduct the common fisheries policy 1, the annual 

report shall include estimates of the overall incidental catches of cetaceans in each of the fisheries 

concerned.  This report shall include an assessment of the conclusions of the observers' reports and

any other appropriate information, including any research conducted within the Member States to 

reduce the incidental capture of cetaceans in fisheries.  When reporting on the results of 

scientific studies or pilot projects as provided for in Articles 2(4) and 4(2), Member States shall 

ensure that sufficiently high quality standards are reached in their design and implementation and 

shall provide detailed information concerning those standards to the Commission. 

Article 7

Overall assessment and review 

1.   One year at the latest after the submission by Member States of their second annual report, 

the Commission shall report to the European Parliament and the Council on the operation of this 

Regulation in the light of the information available as a result of the application of Article 6 and of

the assessment by the Scientific, Technical and Economic Committee for Fisheries of the reports of 

the Member States.  The report shall consider in particular the application of this Regulation to 

types of vessel and areas, the quality of information derived from observer schemes and the quality 

of pilot projects and may be accompanied by appropriate proposals. 

2.   This report shall be updated following the submission of the fourth annual report by

Member States. 

1

OJ L 176, 15.7.2000, p. 1. 

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Adaptation to technical progress and additional technical guidance

Article 8

1.   The following shall be adopted in accordance with the management procedure laid down in 

Article 30(2) of Regulation (EC) No 2371/2002: 

(a)

operational and technical guidance on the tasks of the observers, as set out in Article 6;

(b)

detailed rules on reporting requirements, as set out in Article 6.

2.   Amendments to Annex II which are necessary in order to adapt it to technical and 

scientific progress shall be adopted in accordance with the regulatory procedure laid down in 

Article 30(3) of Regulation (EC) No 2371/2002. 

Article 9

Amendment of Regulation (EC) No 88/98 

The following Articles shall be inserted: 

"Article 8a 

Restrictions on drift-nets

1.   From 1 January 2008, it shall be prohibited to keep on board, or use for fishing, driftnets. 

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2.   Until 31 December 2007, a vessel may keep on board, or use for fishing, driftnets if authorised

to do so by the competent authorities of the flag Member State. 

3.   In 2005, the maximum number of vessels which may be authorised by a Member State to keep 

on board, or use for fishing, driftnets shall not exceed 60% of the fishing vessels which used 

drift-nets during the period 2001 to 2003. 

In 2006 and 2007, the maximum number of vessels shall not exceed 40% and 20% respectively of 

the fishing vessels which used driftnets during the period 2001 to 2003. 

4.   Member States shall communicate to the Commission by 30 April of each year, the list of 

vessels authorised to carry out fishing activities using driftnets; for 2004, the information shall be

sent not later than 31 August 2004. 

Article 8b 

Conditions for drift-nets

1.   Floating buoys, with radar reflectors, must be moored to each end of the netting, so that its 

position can be determined at any time.  The buoys must be permanently marked with the 

registration letter(s) and number of the vessel to which they belong. 

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2.   The master of a fishing vessel using driftnets shall keep a logbook in which he must record the 

following information on a day-to-day basis:

(a)

the total length of the nets on board; 

(b)

the total length of the nets used in each fishing operation; 

(c)

the quantity of by-catches of cetaceans; 

(d)

the date and position of such catches.

3.   All fishing vessels using driftnets shall keep on board the authorisation referred to in 

Article 8a (2)." 

Article 10

Entry into force 

This Regulation shall enter into force on 1 July 2004. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Luxembourg, 26.4.2004. 

For the Council 

The President 

J. WALSH 

______________ 

 
 
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ANNEX I

Fisheries in which the use of acoustic deterrent devices is mandatory 

Area 

Gear 

A.  Baltic Sea Area 

(a)  Any bottom-set 

Period 

All year 

Starting date 

1 June 2005 

gillnet or 

entangling net 

(b)  Any drift-net 

All year 

1 June 2005 

delimited by a line 
running from the 
Swedish coast at the 
point at longitude 13°E, 
thence due south to 
latitude 55° N, thence 
due east to longitude 
14° E, thence due north 
to the coast of Sweden; 
and,  
Area delimited by a 
line running from the 
eastern coast of 
Sweden at the point at 
latitude 55° 30' N, 
thence due east to 
longitude 15 E, thence 
due north to latitude 
56° N, thence due east 
to longitude 16° E 
thence due north to the 
coast of Sweden

 
 
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Area 

Gear 

Period 

Starting date 

B. 

ICES sub area IV and 

(a)  Any bottom-set 

(a) 

1 August - 

1 August 2005 

division III a 

gillnet or 

31 October 

entangling net, or 

combination of 

these nets, the total 

length of which 

does not exceed 

400 metres

(b)  Any bottom-set 

(b)  All year 

1 June 2005 

gillnet or 

entangling net with 

mesh sizes 

> 220 mm 

C. 

ICES divisions VII e, f, 

(a)  Any bottom-set 

(a)  All year 

1 January 2006 

g, h, and j 

gillnet or 

entangling net 

D. 

ICES division VII d 

(a)  Any bottom-set 

(a)  All year 

1 January 2007 

gillnet or 

entangling net 

E.  Baltic Sea 

(a)  Any bottom-set 

(a)  All year 

1 January 2007 

subdivision 24 (except 

gillnet or 

for the area covered 

entangling net 

under A) 

(b)  Any drift-net 

(b)  All year 

1 January 2007 

 
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Technical specifications and conditions of use of acoustic deterrent devices 

ANNEX II

Any acoustic deterrent devices used in application of Article 2(1) shall meet one of the following 

sets of signal and implementation characteristics: 

Set 1 

Set 2 

SIGNAL CHARACTERISTICS 

* 
* 
* 

* 

* 

* 

* 

Digital 

Signal synthesis 
Tonal/wide band  Wide band / tonal 
Source levels 
(max-- min) 
re 1 µPa@1m
Fundamental 
frequency 

145 dB 

(a) 

20 - 160 KHz 
wide band sweeps 

High-frequency 
harmonics 
Pulse duration 
(nominal) 
Interpulse interval 

(b)  10 kHz tonal 
Yes 

300 ms 

(a) 

4 - 30 seconds 
randomised;  

(b)  4 seconds  

Analogue 
Tonal 
130-150 dB 

10 kHz 

Yes 

300 ms 

4 seconds 

*  Maximum spacing 
between two
acoustic deterrent 
devices along nets 

IMPLEMENTATION CHARACTERISTICS 

200 m, with one acoustic 
device fixed at each end 
of the net (or 
combination of nets 
attached together) 

100 m, with one acoustic 
device fixed at each end 
of the net (or 
combination of nets 
attached together) 

 
 
 
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ANNEX III

Fisheries to be monitored and minimum level 

of fishing effort subject to on-board observers 

1.  General monitoring obligations

Monitoring schemes shall be designed on an annual basis and established to monitor cetacean 

by-catch, in a representative manner, in the fisheries defined in the table in paragraph 3.  

Monitoring schemes shall be made sufficiently representative by adequately spreading 

observer coverage over the fleets, time and fishing areas. 

As a general rule, monitoring schemes shall be based on a sampling strategy designed to 

allow the estimation of the by-catch rates of cetaceans, for the most frequent species in the 

by-catch per unit effort by a given fleet to achieve a coefficient of variation not 

exceeding 0,30.  The sampling strategy shall be designed on the basis of existing information 

on the variability of previous by-catch observations. 

2. 

Pilot monitoring schemes

Where, due to absence of information on variability of by-catch, the sampling strategies 

cannot be designed to achieve the coefficient of variation within the limit set in paragraph 1, 

Member States shall implement pilot on-board observer schemes for two consecutive years, 

starting at the dates in paragraph 3 for the concerned fisheries.

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These pilot observer schemes shall be based on a sampling strategy aimed at determining the 

variability of by-catch which will provide the basis for the design of subsequent 

sampling strategies under the conditions of the paragraph 1, and shall also provide estimates 

of by-catch of cetaceans per unit effort, broken down by species. 

The pilot schemes shall cover, at least, the following minimum value of fishing effort: 

(a)

For all fisheries defined in paragraph 3, with the exception of pelagic trawls (single and 

pair) from 1 December to 31 March in ICES sub areas VI, VII and VIII: 

Fleets of more than 

Fleets of more than 

Fleets of less than 

400 vessels 

60 and less than 

60 vessels 

400 vessels 

Minimum effort 

The fishing effort 

5% of the fishing 

5%, covering at 

covered by the 

of 20 vessels 

effort 

least 3 different 

pilot schemes 

vessels 

(b)

For pelagic trawls (single and pair) from 1 December to 31 March in ICES sub areas VI, 

VII and VIII: 

Fleets of more than 

Fleets of less than 

60 vessels 

60 vessels 

Minimum effort 

10% of the fishing 

10%, covering at 

covered by the 

effort 

least 3 different 

pilot schemes 

vessels 

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3. 

Fisheries to be monitored and monitoring starting dates 

Area 

Gear 

Starting date 

A. 

ICES sub areas VI, 

Pelagic trawls (single and 

1 January 2005 

VII and VIII. 

pair) 

B.  Mediterranean Sea 

Pelagic trawls (single and 

1 January 2005 

(of the east of line 

pair) 

5°36’ west 

C. 

ICES divisions VIa, 

Bottom-set gillnet or 

1 January 2005 

VII a and b, VIIIa, b 

entangling nets using mesh 

and c, and IXa 

sizes equal to or greater than 

80 mm 

D. 

ICES sub area IV, 

Driftnets 

1 January 2006 

division VIa, and 

sub area VII with the 

exception of 

divisions VIIc 

and VIIk 

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E.  

ICES sub areas III a, 

Pelagic trawls (single and 

1 January 2006 

b, c, III d south of 

pair) 

59°N, III d north of 

59°N (only from 

1 June to 

30 September), IV 

and IX 

F.  

ICES sub areas VI, 

High-opening trawls 

1 January 2006 

VII and VIII and IX 

G. 

ICES sub area III b, 

Bottom-set gillnet or 

1 January 2006 

c, d 

entangling nets using mesh 

sizes equal to or greater than 

80 mm