Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears {SEC(2007) 1315} {SEC(2007) 1317}
Date: 2007-10-17
Institutions: European Commission
Subjects: deep-sea fishing, degradation of the environment, environmental protection, fishing area, fishing regulations, fishing rights, marine ecosystem

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 17.10.2007 
COM(2007) 605 final 

2007/0224 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the protection of vulnerable marine ecosystems in the high seas from the adverse 
impacts of bottom fishing gears 

(presented by the Commission) 

{SEC(2007) 1315} 
{SEC(2007) 1317} 

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EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

The  proposed  Council  Regulation  implements  the  recommendations  issued  by  the 
General  Assembly  of  the  United  Nations  (Resolution  61/105  of  8  December  2006) 
on measures to eliminate destructive fishing practices that threaten vulnerable marine 
ecosystems in the high seas. The proposal applies to EU vessels operating in the high 
seas in areas that are not subject to regulation by a Regional Fisheries Management 
Organisation (RFMO) and thus require unilateral flag State regulation. 

•  General context 

Certain  marine  ecosystems  such  as  seamounts,  deep  water  corals  and  hydrothermal 
vents  are  threatened  by  fishing  practices  that  can  have  destructive  effects  on  the 
physical  integrity  of  the  habitat.  Bottom  fishing  gears,  when  deployed  in  areas 
containing these ecosystems, have been documented to destroy deep water corals and 
sponges, and with them the complex ecosystem they host and support. These habitats 
have  not  been  fully  explored  and  described  yet,  but  there  is  abundant  scientific 
evidence suggesting their high value as biodiversity hotspots. 

The  UN  General  Assembly  has  been  discussing  the  problems  posed  by  high  seas 
destructive  fishing  practices  since  2004.  The  problem  has  therefore  become  a 
sensitive  issue  in  international  fisheries  governance.  It  is  the  subject  of  particular 
concern  in  relation  to  areas  of  the  high  seas  for  which  a  regional  fisheries 
management  organisation  has  not  been  established  to  regulate  fishing  and  its 
environmental impacts. The EU has been a very active participant in this debate and 
was instrumental in defining the package of recommendations on which the general 
Assembly ultimately reached consensus. 

The  UN  debate  was  marked  by  proposal  made  by  certain  UN  Members  to  adopt  a 
general  moratorium  of  bottom  trawling  in  the  high  seas,  whereas  other  countries 
were  initially  reluctant  to  any  collective  action  determined  at  global  level.  The  EU 
promoted,  successfully,  an  alternative  proposal  based  on  stringent  regulation  of 
bottom  fishing  activities  that  should  inform  the  conservation  and  management 
measures  adopted  by  RFMOs,  and  should  also  determine  the  discipline  that  flag 
States must apply in respect of their vessels when these operate in areas of the high 
seas  not  regulated  by  an  RFMO.  This  approach  is  based  on  the  requirement  of  an 
assessment of environmental impacts as a condition for authorising fishing activities, 
complemented  by  safeguard  rules,  increased  efforts  to  identify  and  describe 
vulnerable  marine  ecosystems  through  scientific  research  and  surveys,  and  the 
continued adoption of area-based measures and closures to protect these ecosystems.  

The  EU  counts  a  sizeable  presence  of  bottom  trawlers  in  areas  where  there  is  no 
established  RFMO  to  regulate  bottom  fishing,  notably  the  Southwest  Atlantic.  The 
EU must respond to the UNGA calls by adopting regulations to prevent the risks that 
bottom fishing activities could destroy vulnerable marine ecosystems located in these 
areas.  

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Resolution 61/105 called on States to adopt measures such as those provided for in 
this proposal by December 2008 and the General Assembly will review the response 
given to its calls in 2009 with a view to further recommendations. 

•  Existing provisions in the area of the proposal 

The Community has adopted measures to protect deep sea ecosystems in EU waters, 
has  tabled  proposals  to  the  same  end  in  relevant  Regional  Fisheries  Management 
Organisations - NEAFC and NAFO for the North Atlantic; SEAFO for the Southeast 
Atlantic;  CCAMLR  for  the  Antarctic;  GFCM  for  the  Mediterranean  -  and  has 
transposed  the  measures  so  adopted  into  Community  Law.  The  present  proposal 
completes the coverage of the EU action by addressing activities taking place outside 
EU waters and in areas not placed under the responsibility of an RFMO. 

•  Consistency with the other policies and objectives of the Union 

This proposal integrates the Union's Environmental and Common Fisheries Policies 
by establishing the rules whereby the adverse effects of certain fishing practices on 
the marine environment can be prevented and eliminated. 

2. 

CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

Consultation methods, main sectors targeted and general profile of respondents 

The  views  of  stakeholders  and  of  representatives  of  the  civil  society  have  been 
received throughout the two-year process during which the issue was discussed in the 
context of the United Nations. In particular, the Commission made publicly available 
its  report  to  the  UN  Secretary  General  submitted  in  April  2006  and  a  Commission 
Staff  Working  Document  outlining  the  intended  position  of  the  EU  in  the  General 
Assembly  Consultations  in  September  2006.  Stakeholders  provided  views  to  the 
Commission on both documents, which were also approved by Member States prior 
to submission and publication. 

Summary of responses and how they have been taken into account 

The Commission received essentially two sets of opposing views: on the one hand, 
environmental  non-governmental  organisations  (ENGOs)  pleaded  with  the  EU  to 
support a blanket moratorium of bottom trawling in the high seas as the only means 
to  ensure  effectively  the  preservation  of  vulnerable  deep  sea  ecosystems.  On  the 
other hand, the fishing sector stated its opposition to the blanket ban approach. 

The Commission proposed a negotiating stance that sought a balanced solution that 
would also seek the objective of gathering international consensus. The Commission 
shared  the  views  of  ENGOs  regarding  the  gravity  of  the  threat  and  the  need  for 
decisive  action,  but  agreed  with  the  fishing  sector  that  stringent  regulation  can  be 
more effective than a high seas fishing ban, notably where such a ban would not be 
the  subject  of  consensus  in  the  United  Nations.  In  such  case,  there  would  be  no 
guarantees of a level playing field in the high seas, with certain flag States complying 
with  the  moratorium  and  others  not.  Instead,  the  package  agreed  by  the  General 

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Assembly on a consensus basis provides clear guidance to all States and RFMOs on 
how  to  regulate  bottom  fishing  activities  by  introducing  an  assessment  of  potential 
environmental impacts based on the precautionary approach and make the results of 
this  assessment  determinant  on  whether  the  activities  may  or  not  be  authorised. 
These  recommendations  establish  a  basis  for  decisive  action  not  only  in  the  high 
seas,  but  also  in  RFMOs  and  even  in  areas  within  national  jurisdiction,  and  should 
therefore  have  the  effect  of  bringing  about  broader  environmental  benefits  in  all 
areas.  

•  Collection and use of expertise 

Scientific/expertise domains concerned 

Deep sea ecology, fishery data. 

Methodology used 

Recourse to published scientific literature on deep sea ecosystems - particularly cold 
water corals - and the effect of fishing and other human activities thereon. On-going 
work on the subject by the International Council on the Exploration of the Sea. In-
house  studies  regarding  the  activities  of  the  fleets  in  areas  of  the  high  seas  not 
regulated by an RFMO. Research projects under the 6th Framework Programme (in 
particular HERMES, including an ad-hoc technical meeting with experts involved in 
this project). 

Main organisations/experts consulted 

ICES, HERMES, UNEP publications 

Summary of advice received and used 

The  existence  of  potentially  serious  risks  with  irreversible  consequences  has  been 
mentioned. There is a broad consensus on the existence of such risks. 

The  protection  of  vulnerable  marine  ecosystems  such  as  reefs,  deep  water  corals, 
seamounts,  hydrothermal  vents,  deep  water  sponges,  against  impacts  from  bottom 
fishing gears requires limiting or excluding the use of such gears in areas where these 
ecosystems  are  found.  Although  impacts  are  variable  according  to  different  gears, 
these  ecosystems  are  extremely  fragile  and  should  be  protected  by  means  of  area 
closures. It was also advised, however, that further research to fully document fishing 
impacts  would  be  necessary,  although  action  should  be  taken  urgently  on  a 
precautionary basis. 

Means used to make the expert advice publicly available 

The  Commission  Staff  Working  Document  published  by  the  Commission  in 
September 2006 stated the conclusions of the Commission's analysis based on advice 
and views received. 

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•  Impact assessment 

Option 1: no specific action to transpose Resolution 61/105, as this is a non-binding 
act.  This  option,  however,  does  not  mean  the  EU  would  disregard  these 
recommendations.  They  would  inform  its  position  in  international  fisheries 
cooperation. As for EU vessels operating in non-RFMO areas, the issue would be left 
to  individual  EU  Member  State  responsibility.  This  option  was  assessed  as  having 
negative  impacts  on  the  EU's  international  credibility  and  ability  to  play  a  leading 
role in enhancing international fisheries governance. It also implies abandonment of 
responsibilities falling upon the EU under the Common Fisheries Policy. 

Option  2:  going  farther  than  the  recommendations  made  by  the  General  Assembly 
and  implement  a  prohibition  applicable  to  EU  vessels  unilaterally.  This  option  was 
assessed  as  having  significant  economic  and  social  negative  impacts  on  the  EU 
fleets. It was also assessed that this option would demonstrate a strong commitment 
by the EU to protect vulnerable marine ecosystems. The effectiveness of this effort, 
however,  would  not  be  guaranteed  if  other  flag  States  should  continue  to  authorise 
fishing and thus would make it difficult to justify the constraints imposed on the EU 
fleet. 

Option 3: Clear policy definition and stringent regulation implementing the General 
Assembly recommendations. This option entails taking specific action to implement 
the Resolution by adopting a) a policy document that commits the Commission and 
the  EU  on  a  clear  strategy  in  international  fora,  indicating  objectives  and  intended 
actions; and b) a regulation to implement the measures recommended by the General 
Assembly in respect of EU vessels operating in non-RFMO areas, namely the present 
proposal. This option was assessed to give visibility to the EU's commitment to the 
attainment of the objective and reinforce the EU's credibility and ability to lead in the 
international  scene.  It  will  entail  impacts  on  national  authorities  responsible  for 
implementing  these  rules,  particularly  the prior  assessment  procedure,  but  will  also 
allow the continuation of fishing activities provided they are environmentally sound. 
As  a  result,  the  system  is  geared  to  ensure  the  protection  of  vulnerable  marine 
ecosystems. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

The Proposal subjects fishing activities with bottom gears that are carried out in areas 
not regulated by an RFMO to the requirement of a fishing permit in accordance with 
Regulation (EC) No 1627/94. The issuance of this permit is subject to the condition 
that  the  issuing  Member  State  authority  carries  out  an  assessment  of  potential 
impacts  of  the  activities  on  vulnerable  marine  ecosystems  and  determines  there  are 
no risks of significant adverse impacts. This assessment is based on the submission 
of  fishing  plans  by  the  operators  and  the  examination  of  the  plans  by  the  issuing 
authority in light of available scientific information and advice on the occurrence (or 
likelihood thereof) of the relevant ecosystems in the foreseen area of operations, to 
verify that the intended activities remain clear of vulnerable sites. 

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The permit's validity is then subject to the condition that fishing activities respect the 
fishing  plans,  providing  for  control  means  to  monitor  such  compliance  (includes 
stringent  vessel  monitoring  by  satellite  and  on-board  observers)  and  fixing  legal 
consequences  in  case  of  non-compliance  (includes  falling  under  the  Common 
Fisheries Policy regime for "serious infringements"). The proposal further establishes 
the obligation to withdraw from sites where vulnerable ecosystems are encountered 
and  a  precautionary  limit  for  the  depth  at  which  bottom  gears  can  be  deployed 
(maximum  1 000 m)  to  ensure  a  precautionary  depth-based  protected  area  in  all 
fishing  grounds.  Finally,  the  proposal  establishes  reporting  obligations  falling  on 
Member States and a review clause two years after entry into force. 

•  Legal basis 

Article 37 of the EC Treaty 

•  Subsidiarity principle 

The  proposal  falls  under  the  exclusive  competence  of  the  Community.  The 
subsidiarity principle therefore does not apply. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

The  proposal  relies  on  an  established  regime,  namely  that  contained  in  Regulation 
(EC) No 1627/94 whereby Member States are responsible for the issuance of special 
fishing  permits,  while  ensuring  a  Community-wide  coherence  and  transparency  in 
the application of the system. It does not create a new authorisation regime but relies 
on  the  permit  as  the  vehicle  for  the  compliance  with  requirements  on  how  fishing 
operations  should  be  conducted  to  prevent  the  destruction  of  vulnerable  marine 
ecosystems. 

Currently,  Member  States  are  not  required,  under  CFP  rules,  to  apply  a  prior 
assessment  of  environmental  impacts  as  a  condition  for  authorising  any  individual 
fishing activities. Implementing this system, as called for by the General Assembly, 
will therefore entail an increase in workload for these authorities, even if the fisheries 
concerned are relatively limited. The proposal, however, provides for criteria for this 
assessment,  notably  the  use  of  scientific  advice,  that  Member  States  have  at  their 
disposal  and  will  not  normally  require  an  overhaul  of  the  current  authorisation 
system. It will merely imply a more documented authorisation procedure. These are 
the minimum requirements that the system must implement to respond effectively to 
the approach agreed by the General Assembly. 

•  Choice of instruments 

Proposed instruments: regulation. 

Other means would not be adequate for the following reason(s). 

The  Common  Fisheries  Policy  is  an  area  of  exclusive  competence  by  the 
Community. The rules adopted at Community level should be uniform and binding in 

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order  to  avoid  the  coexistence  of  different  standards  between  Member  States.  It  is 
therefore justified that the measures are contained in a Proposal for a Regulation. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5. 

ADDITIONAL INFORMATION 

•  Review/revision/sunset clause 

The proposal includes a review clause. 

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2007/0224 (CNS) 

Proposal for a 

COUNCIL REGULATION 

on the protection of vulnerable marine ecosystems in the high seas from the adverse 
impacts of bottom fishing gears 

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 Commission1, 

Having regard to the opinion of the European Parliament2, 

Whereas: 

(1) 

(2) 

(3) 

The Community is a Contracting Party to the United Nations Convention on the Law 
of the Sea and to the Agreement on 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.  These  international  instruments  lay  down  the  duty  of  States  to  cooperate  on 
conserving the living resources of the high seas, and prescribe that such cooperation 
shall  be  pursued  directly  by  States  or  through  appropriate  subregional  or  regional 
fisheries management organisations or arrangements. 

The absence of a regional fisheries management organisation or arrangement does not 
exempt States from their obligation under the law of the Sea to adopt with respect to 
their  nationals  such  measures  as  may  be  necessary  for  the  conservation  of  the  living 
resources  of  the  high  seas,  including  the  protection  of  vulnerable  marine  ecosystems 
against the harmful effects of fishing activities. 

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  policy3  provides  that  the  common  fisheries  policy  is  to  apply  the 
precautionary approach in taking measures to minimise the impact of fishing activities 
on marine ecosystems. Article 7 of the same Regulation provides that the Commission 
may decide on emergency measures at the substantiated request of a Member State or 
on its own initiative if there is evidence of a serious threat to the conservation of living 

1 
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OJ C , , p. . 
OJ C , , p. . 
OJ L 358, 31.12.2002, p. 59. 

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(4) 

(5) 

(6) 

(7) 

aquatic  resources,  or  to  the  marine  eco-system  resulting  from  fishing  activities  and 
requiring immediate action; 

The Community is committed to the conservation of marine ecosystems such as reefs, 
seamounts, deep water corals, hydrothermal vents and sponge beds. There is abundant 
scientific information showing that the integrity of these ecosystems is threatened by 
fishing activities using bottom gears. The Community has already adopted measures to 
close  to  bottom  fishing  areas  within  Community  waters  where  such  ecosystems  are 
found.  It  has  also  been  instrumental  in  the  adoption  of  similar  measures  in  the  high 
seas  within  the  areas  of  competence  of  all  existing  regional  fisheries  management 
organisations empowered to regulate bottom fisheries. It has also actively contributed 
to  the  establishment  of  new  organisations  or  arrangements  with  a  view  to  achieving 
global  coverage  of  the  world's  ocean  by  appropriate  regional  fisheries  conservation 
and management regimes. There are, however, certain areas of the high seas for which 
the establishment of such a body encounters significant difficulties. 

By Resolution 61/105  of  the  General  Assembly of the United Nations, adopted on 8 
December  20064,  the  international  community  has  agreed  on  the  pressing  need  to 
adopt measures to protect vulnerable marine ecosystems from the destructive effects of 
bottom  fishing  activities  through  strict  regulation  of  those  activities  by  regional 
fisheries  management  organisations  or  arrangements  or  by  States  in  respect  of  their 
flagged vessels operating in areas where no such organisations or arrangements are in 
place.  The  General  Assembly  has  provided  guidance  as  to  the  kind  of  measures  that 
should be adopted to this end. 

The Community has a sizeable fleet conducting bottom fishing in areas not regulated 
by  a  regional  fisheries  management  organisation  or  arrangement  and  for  which  the 
establishment  of  such  organisation  or  arrangement  cannot  be  expected  in  the  short 
term. Without prejudice to continued efforts to remedy these remaining spatial gaps in 
the  international  fisheries  governance  system,  the  Community  must  discharge  its 
obligations  under  the  law  of  the  sea  with  regard  to  the  conservation  of  the  marine 
living  resources  in  these  areas  and  must  therefore  adopt  appropriate  measures  in 
respect  of  these  fleets.  In  doing  so,  the  Community  must  act  in  accordance  with  the 
guidance provided by the General Assembly in Resolution 61/105. 

A key component of the recommendations made by the General Assembly is measures 
"…  to  assess,  on  the  basis  of  the  best  available  scientific  information,  whether 
individual  bottom  fishing  activities  would  have  significant  adverse  impacts  on 
vulnerable marine ecosystems, and to ensure that if it is assessed that these activities 
would have significant adverse impacts, they are managed to prevent such impacts, or 
not authorised to proceed"5.  

(8) 

The  implementation  of  that  recommendation  requires  that  the  fishing  vessels 
concerned  are  authorised  to  fish  under  a  special  fishing  permit  issued  in  accordance 
with  Council  Regulation  (EC)  No  1627/94  of  27  June  1994  laying  down  general 

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General Assembly Resolution 61/105 Sustainable fisheries, including through the 1995 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, and related instruments. 
Resolution 61/105, paragraph 83 (a). 

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provisions  concerning  special  fishing  permits6  and  Commission  Regulation  (EC)  No 
2943/95  of  20  December  1995  setting  out  detailed  rules  for  applying  Council 
Regulation  (EC)  No  1627/947.  In  addition,  the  issuance  and  validity  of  such  permits 
must  be  subject  to  specific  conditions  ensuring  that  the  impact  of  the  authorised 
fishing activities has been properly assessed and that the conduct of fishing operations 
complies with such assessment. 

(9) 

The  implementation  of  the  Recommendations  made  by  the  General  Assembly  also 
requires relevant monitoring measures to ensure compliance with the conditions under 
which  the  permits  are  issued.  These  include  on-board  observers  and  specific 
provisions  regarding  the  operation  of  satellite-based  Vessel  Monitoring  Systems  to 
address events of technical failure or non-functioning of the system, beyond those set 
forth  by  Commission  Regulation  (EC)  No  2244/2003  of  18  December  2003  laying 
down detailed provisions regarding satellite-based Vessel Monitoring Systems8. 

(10)  The identification of vulnerable marine ecosystems in areas not regulated by a regional 
fisheries management organisation is a work in progress and there is relatively limited 
scientific information in this respect. A depth limit for the deployment of bottom gears 
provides a precautionary protected boundary for deep water corals and sponges within 
the  water  column.  A  depth  of  1 000  m  represents  a  reasonable  choice  providing  a 
suitable  degree  of  protection  while  compatible  with  the  continuation  of  bottom 
fisheries  for  demersal  species  generally  found  at  shallower  depths  such  as  hake  and 
squid.  This  depth  restriction  is  also  compatible  with  the  progressive  development, 
under  this  regulation,  of  area-based  measures  to  fully  protect  sites  where  vulnerable 
ecosystems are known or likely to occur. 

(11)  The violation of specific conditions such as those relating to the depth restriction, the 
operation of the Vessel Monitoring System and the relocation of activities in case of 
unforeseen  encounter  with  a  vulnerable  marine  ecosystem  may  result  in  irreparable 
damage  to  such  ecosystems  and  deserves  therefore  to  be  included  among  the  list  of 
serious infringements contained in Council Regulation (EC) No 1447/1999 of 24 June 
1999 establishing a list of types of behaviour which seriously infringe the rules of the 
common fisheries policy9. 

(12)  The Community has established a specific management regime that applies to fishing 
for  deep  sea  stocks  through  Council  Regulation  (EC)  No  2347/2002  establishing 
specific  access  requirements  and  associated  conditions  applicable  to  fishing  for  deep 
sea  stocks10.  It  is  appropriate  to  ensure  that  the  requirements  set  forth  in  Regulation 
(EC) No 2347/2002 also apply to Community fishing vessels targeting deep sea stocks 
in  areas  where  there  is  no  international  management  measures  or  arrangements  in 
force.  

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7 
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10 

OJ L 171, 6.7.1994, p. 7. 
OJ L 308, 21.12.1995, p. 15. 
OJ L 333, 20.12.2003, p. 17. 
OJ L 167, 2.7.1999, p. 5. 
OJ L 351, 28.12.2002, p. 6. 

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HAS ADOPTED THIS REGULATION: 

Article 1 

Scope 

1. 

2. 

This  Regulation  shall  apply  to  Community  fishing  vessels  carrying  out  fishing 
activities with bottom gears in the high seas. 

This  Regulation  shall  not  apply  to  Community  fishing  vessels  whose  areas  of 
operation lie withing areas : 

(a) 

(b) 

Under  the  responsibility  of  a  regional  fisheries  management  organisation  of 
arrangement with competence to regulate such fishing activities; 

For which a process for the establishment of a regional fisheries management 
organisation  is  underway;  where  the  participants  in  such  process  have  agreed 
on interim measures to protect vulnerable marine ecosystems from destructive 
impacts resulting from the use of bottom gears. 

Article 2 

Definitions 

For the purpose of this Regulation, the following definitions shall apply: 

(a) 

(b) 

'marine ecosystem' means a dynamic complex of plant, animal and micro-organism 
communities and their non-living environment interacting as a functional unit; 

'vulnerable marine ecosystem' means any marine ecosystem whose specific structure 
and  function  is,  according  to  the  best  scientific  information  available  and  to  the 
principle  of  precaution,  likely  to  be  compromised  by  stress  resulting  from  physical 
contact  with  bottom  gears  in  the  course  of  fishing  operations,  including  inter  alia 
reefs, seamounts, hydrothermal vents, cold water corals or cold water sponge beds; 

(c) 

'bottom  gears'  means  bottom  trawls,  dredges,  bottom-set  gillnets,  bottom-set 
longlines, pots and traps. 

Article 3 

Special fishing permit 

1. 

In  order  to  conduct  the  fishing  activities  referred  to  in  Article  1(1),  Community 
fishing vessels must have a special fishing permit. 

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2. 

The  special  fishing  permit  shall  be  issued  in  accordance  with  Council  Regulation 
(EC)  No  1627/9411  and  subject  to  the  conditions  established  in  the  present 
Regulation. 

Article 4 

Conditions for issuance 

1. 

Applications  for  a  special  fishing  permit  provided  for  in  Article  3(1)  shall  be 
accompanied by a detailed fishing plan specifying in particular: 

(a) 

the intended location of the activities, 

(b) 

the targeted species,  

(c) 

the depth at which the gears will be deployed, and 

2. 

3. 

4. 

5. 

(d) 

the  configuration  of  the  bathymetric  profile  of  the  seabed  in  the  intended 
fishing grounds. 

The competent authorities shall issue a special fishing permit after having carried out 
an assessment on the potential impacts of the vessel's intended fishing activities and 
concluded  that  such  activities  are  not  likely  to  have  significant  adverse  impacts  on 
vulnerable marine ecosystems. 

For the purposes of the implementation of the assessment referred to in paragraph 2, 
the  competent  authorities  shall  rely  on  the  best  scientific  information  available 
concerning  the  location  of  vulnerable  marine  ecosystems  in  the  areas  in  which  the 
fishing vessels concerned intend to operate. That scientific information shall include, 
where available, scientific data on the basis of which the likelihood of occurrence of 
such ecosystems can be estimated. 

The  competent  authorities  shall  apply  precautionary  criteria  in  the  conduct  of  the 
assessment  referred  to  in  paragraph  2.  In  case  of  doubt  on  whether  the  adverse 
impacts  are  significant  or  not,  they  shall  consider  that  the  likely  adverse  impacts 
resulting from the scientific advice provided are significant. 

Where the assessment should conclude that activities carried out in accordance with 
the  submitted  fishing  plan  might  result  in significant  adverse  impacts  to  vulnerable 
marine  ecosystems,  the  competent  authorities  shall  specify  the  assessed  risks  and 
allow  applicants  to  amend  the  fishing  plan  to  avoid  them.  In  the  absence  of  such 
amendments,  the  competent  authorities  shall  refrain  from  issuing  the  requested 
special fishing permit. 

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OJ L 171, 6.7.1994, p. 7. 

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Article 5 

Conditions for validity 

1. 

2. 

The special fishing permit provided for in Article 3(1) shall remain valid throughout 
the  execution  of  the  fishing  plan  submitted  in  accordance  with  Article  4(1)  on 
condition that fishing activities conform to such plan at all times.  

Where  circumstances  beyond  the  control  of  the  person  responsible  for  the  vessel 
operations necessitate an alteration of the submitted plans, the person responsible for 
the  vessel's  operations  shall  inform  the  competent  authorities  without  delay, 
indicating the modifications intended to the original plan. The competent authorities 
shall examine such alterations and confirm the validity of the permit only if they do 
not entail a relocation of the activities to areas where vulnerable marine ecosystems 
occur or are likely to occur.  

Article 6 

Depth limits 

The use of bottom gears at depths beyond 1 000 m of depth shall be prohibited.  

1. 

2. 

3. 

1. 

Article 7 

Unforeseen encounters with vulnerable marine ecosystems 

Where, in the course of fishing operations, a fishing vessel encounters a vulnerable 
marine  ecosystem,  it  shall  immediately  cease  fishing,  or  refrain  from  engaging  in 
fishing in the site concerned. It shall resume operations only when it has reached an 
alternative  site  at  a  minimum  distance  of  5  nautical  miles  from  the  site  of  the 
encounter within the area foreseen in its fishing plan provided for in Article 4(1). 

If a new encounter takes place in the alternative site referred to in paragraph 1, the 
vessel  shall  keep  relocating  in  accordance  with  the  rules  set  out  in  that  paragraph 
until a site where no vulnerable marine ecosystems are found is reached. 

The  fishing  vessel  shall  report  each  encounter  to  the  competent  authorities  without 
delay,  providing  precise  information  on  the  nature,  location,  time  and  any  other 
relevant circumstances of the encounter. 

Article 8 

Area closures 

On the basis of the best scientific information available on the occurrence or on the 
likelihood of occurrence of vulnerable marine ecosystems in the region where their 
fishing  vessels  operate,  Member  States  shall  identify  areas  that  shall  be  closed  to 
fishing  with  bottom  gears.  Member  States  shall  implement  these  closures  without 

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2. 

1. 

2. 

1. 

2. 

delay in respect of their vessels and submit a report to the Commission in accordance 
with Article 13.  

Without  prejudice  to  Article  7  of  Council  Regulation  (EC)  No  2371/2002,  the 
Commission shall examine this information and submit, where appropriate, proposals 
to the Council for the adoption of Community measures to protect these areas. The 
Commission  shall  also  consider,  where  appropriate,  the  adoption  of  such  measures 
on its own initiative. 

Article 9 

Vessel monitoring system 

Notwithstanding Article 11(1) of Commission Regulation (EC) No 2244/2003, in the 
event of technical failure or non-functioning of the satellite tracking device fitted on 
board a fishing vessel, the master of the vessel shall report its geographical situation 
to the flag Member State every two hours. 

After  returning  from  the  sea  trip,  the  vessel  shall  not  leave  the  port  again  until  the 
satellite  tracking  device  is  functioning  to  the  satisfaction  of  the  competent 
authorities. 

Article 10 

Serious infringements 

Failure to conform to the fishing plan provided for in Article 4(1) in circumstances 
other than those specified in Article 5(2) shall entail the loss of validity of the special 
fishing  permit  issued  to  the  fishing  vessel  concerned.  Any  fishing  activities  carried 
out from the time when the vessel departed from its fishing plans shall be considered 
as  fishing  without  holding  a  fishing  permit  under  the  terms  of  paragraph  C,  first 
indent, of the Annex to Regulation (EC) No 1447/1999. 

Repeated instances of non-compliance with the obligations laid down in Articles 6, 7 
and 9 shall be considered as conduct that seriously infringes the Common Fisheries 
Policy, according to Council Regulation (EC) No 1447/1999. 

Article 11 

Fishing vessels targeting deep sea stocks 

Community fishing vessels referred to in Article 1(1) and which target deep sea stocks shall 
also  be  subject  to  the  requirements  laid  down  in  Regulation  (EC)  No  2347/2002  of  16 
December 2002.  

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Article 12 

Observers 

1. 

Each Member State shall assign scientific observers to the vessels to which a special 
fishing permit provided for in Article 3(1) is issued. The observers shall observe the 
fishing activities of the vessel throughout the execution of its fishing plan provided 
for in Article 4(1). 

2. 

The scientific observer shall: 

(a) 

(b) 

(c) 

record independently in a logbook the catch information prescribed in Article 6 
of Regulation (EEC) No 2847/9312; 

record  any  instances  of  alteration  of  the  fishing  plan  as  referred  to  in  Article 
5(2); 

document  any  instances  of  unforeseen  encounter  with  vulnerable  marine 
ecosystems referred to in Article 7, including the gathering of information that 
may be of use in relation to the protection of the site; 

(d) 

record depths at which gear is deployed; 

(e) 

present  a  report  to  the  competent  authorities  of  the  Member  State  concerned 
within 20 days following the termination of the observation period. A copy of 
this  report  shall  be  sent  to  the  Commission,  within  30  days  after  receipt  of  a 
written request. 

3. 

The scientific observer shall not be any of the following: 

(a) 

a  relative  of  the  master  of  the  vessel  or  other  officer  serving  on  the  vessel  to 
which the observer is assigned; 

(b) 

an employee of the master of the vessel to which he is assigned; 

(c) 

an employee of the master's representative; 

(d) 

an employee of a company controlled by the master or his representative; 

(e) 

a relative of the master's representative. 

Article 13 

Information 

1. 

Member  States  shall  communicate  to  the  Commission,  for  each  half  calendar  year 
within three months of the expiry of that half calendar year, a report on: 

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OJ L 261, 20.10.1993, as amended. 

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(a) 

(b) 

in addition to the requirements laid down in Article 18 of Regulation (EEC) No 
2847/93,  the  catches  made  by  the  fishing  vessels  referred  to  in  Article  (1), 
established on the basis of the information recorded in logbooks, including full 
records  of  fishing  days  out  of  port  and  reports  presented  by  the  scientific 
observers, broken down by quarter of the year, by type of gear and by species; 

the compliance with the fishing plans and with the requirements laid down in 
Articles  6,  7  and  8  by  the  fishing  vessels  referred  to  in  Article  1(1)  and  the 
measures  taken  to  remedy  and  sanction  instances  of  non-compliance  and  of 
serious infringements referred to in Article 10; 

(c) 

their implementation of Article 8.  

2. 

The Commission shall transmit the information contained in the report referred to in 
paragraph 1 to the relevant scientific bodies without delay. 

Article 14 

Follow-up 

The Commission shall submit to the European Parliament and to the Council a report on the 
implementation  of  this  Regulation  before  30  June  2010.  That  report  shall  be  accompanied 
where necessary by proposals for amendments to this Regulation. 

Article 15 

Entry into force 

This Regulation shall enter into force on the seventh day following that of its publication in 
the Official Journal of the European Union. 

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

Done at Brussels,  

For the Council 
The President 

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