Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears - COM(2007) 605 final — 0227/0224(CNS)
Date: 2008-05-29
Institutions: European Economic and Social Committee
Subjects: deep-sea fishing, degradation of the environment, environmental protection, fishing area, fishing regulations, fishing rights, marine ecosystem

30.8.2008

EN

Official Journal of the European Union

C 224/77

Opinion of the European Economic and Social Committee on the

— Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the

high seas from the adverse impacts of bottom fishing gears and the

— Communication from the Commission to the European Parliament, the Council, the European
Economic and Social Committee and the Committee of the Regions — Destructive fishing
practices in the high seas and the protection of vulnerable deep sea ecosystems

COM(2007) 605 final — 0227/0224(CNS)

COM(2007) 604 final

(2008/C 224/17)

On 4 December 2007, the Council decided to consult the European Economic and Social Committee, under
Article 37 of the Treaty establishing the European Community, on the

Proposal for a Council Regulation on the protection of vulnerable marine ecosystems in the high seas from the adverse
impacts of bottom fishing gears.

On 17 October 2007, the European Commission decided to consult the European Economic and Social
Committee, under the Cooperation Protocol signed on 7 November 2005, on the

Communication from the Commission to the European Parliament, the Council, the European Economic and Social
Committee and the Committee of the Regions — Destructive fishing practices in the high seas and the protection of
vulnerable deep sea ecosystems.

The Section for Agriculture, Rural Development and the Environment, which was responsible for preparing
the Committee's work on the subject, adopted its opinion on 29 April 2008. The rapporteur was Mr Espuny
Moyano, and the co-rapporteur was Mr Adams.

At its 445th plenary session, held on 28 and 29 May 2008 (meeting of 29 May), the European Economic
and Social Committee adopted the following opinion by 101 votes in favour, with one abstention.

1. Conclusions and recommendations

1.1
The EESC supports the general policy orientation set out
by the Commission in this Proposal and Communication but
believes the content, effectiveness and impact of the proposed
regulation could be improved by incorporating the recommen-
dations set out in sections 4 and 5 of this Opinion.

2.2
Bottom fishing requires highly specialist gear, which
generally can be used without serious damage where the sea bed
is sandy or muddy. However, some types of gear are necessarily
heavy and robust and in fragile deepwater ecosystems can
severely degrade habitats and destroy ancient and largely irre-
placeable structures, particularly coral.

2. Introduction

2.1
It has become clear in recent years that ecosystems in
deep waters can be the source of immense biodiversity and
the world's
abundant marine life. They are one of
last
remaining, significant groupings of natural
resources. Cold
water reefs, seamounts, corals, hydrothermal vents and sponge
beds are increasingly at
risk from human activities. Such
systems exist in much less productive environments than those
found in shallow waters and consequently may take centuries to
regenerate. Hydrocarbon exploration,
laying, waste
dumping and particular types of bottom fishing activity (1), as
well as other human activities, can have negative effects. Cold-
water corals are also found in continental shelf areas in tempe-
rate latitudes (2).

cable

(1) These include bottom trawls, dredges, bottom-set gillnets, bottom-set
longlines, pots and traps. See Friewald, A., Fosså, J.H., Koslow, T.,
Roberts, J.M. 2004. Cold-water coral reefs. UNEP-WCMC, Cambridge, UK.

(2) Ibid.

As is often the case with global environmental issues it
2.3
was understood that only by introducing balanced, effective,
enforceable measures on a worldwide basis could this problem
be comprehensively tackled. The UN General Assembly has
been discussing the problems posed by high seas fishing prac-
tices since 2004. On 8 December 2006, it adopted Resolution
61/105 on Sustainable Fisheries, which issued a strong call for
action by states and organisations with authority over bottom
fisheries on the high seas to regulate such fishing to protect
vulnerable marine ecosystems from damage (3).

2.4
This Opinion deals with two Commission documents on
the protection of vulnerable marine ecosystems. The first, (COM
(2007) 604), details the general policy orientation which it is
proposed should guide and inform specific actions to be taken
by the EU. This results from FAO recommendations developed

(3) UN General Assembly resolution 61/105,. Paragraphs 83-86.

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after extensive consideration of this issue by the UN General
Assembly (4), in which the EU played a major role. The second
document (COM(2007) 605), is a proposed Council regulation
which will apply to EU vessels operating in the high seas not
covered by a Regional Fisheries Management Organisation
(RFMO) and should be seen as a direct legislative response.

issuing of special fishing permits. When applying for a permit, a
vessel will have to submit a fishing plan setting out where it will
be fishing, which species it will target, the depth at which it will
fish and a bathymetric profile of the seabed in the area. The
authorities will then have to assess the fishing plan and its
potential impacts on any vulnerable marine ecosystems, relying
on the best scientific information available.

2.5
It is in the long-term interest of both the industry and
the conservation community to see seabed habitats protected to
ensure the long-term sustainability of fish stocks as well as the
conservation and protection of marine biodiversity.

3. Summary of

the Commission's

general

(COM(2007) 604) and specific proposal
605)

approach
(COM(2007)

3.1
The two key elements of the framework for the manage-
ment of bottom fisheries on the high seas are the prior environ-
mental impact assessment of a proposed fishing area as a condi-
tion for the authorisation of individual fishing activities and the
ability to demonstrate no significant adverse impacts as a condi-
tion for continued fishing. In support of this, improved research
and data collection must be developed to identify the known or
likely locations and ecological dynamics of vulnerable systems.

3.6
The proposal also sets out a few clear limitations. Use of
bottom gears at depths beyond 1 000 metres shall be prohib-
ited. Use of bottom gears at depths beyond 1 000 metres shall
be prohibited. Fishing vessels encountering vulnerable marine
ecosystems will be required to cease fishing immediately and
will only be allowed to resume fishing five nautical miles or
more away from the site. The responsible authorities should be
informed of the location of the encounter, and may then decide
to close the area for fishing with bottom gears. All vessels will
also be required to use satellite-based Vessel Monitoring Systems
(VMS) as well as have scientific observers onboard.

3.7 Member States will be required to report to the Commis-
sion on the implementation of the Regulation every six months.
The Commission will then prepare a report to the European
Parliament and the Council before June 2010, including propo-
sals for any necessary amendments.

4. General comments

A particularly valuable measure is

the adoption of
3.2
geographically-based closures or special management areas. This
would take place, by agreement, within an RFMO. Protection
outside an RFMO is the responsibility of individual States in
respect to vessels which carry their flag.

4.1
The EESC supports the general policy orientation set out
by the Commission which is consistent with its previously
expressed position on halting
loss of biodiversity
(NAT/334).

the

The proposed Regulation will

3.3
impose the stringent
control of high seas bottom fishing through measures similar to
those already adopted by nations fishing on the high seas in the
Northwest Pacific, South Pacific and Antarctic waters and which
have been tabled for adoption in RFMOs in the North and
Southeast Atlantic, the Antarctic and the Mediterranean.

3.4
The Commission received wide-ranging representations
from member States, industry and environmental conservation
bodies during the three years the issue was under negotiation at
the UN General Assembly. It promoted a regulatory approach
(as opposed to a ban) with the intention that this be applied by
flag States through RFMOs and by flag States where their
vessels operate on the high seas in areas where no RFMO
currently exists.

3.5
will

In the proposal, the management of deep sea fisheries
largely be left to EU member states and linked to the

(4) Resolutions 59/25 (2004) and particularly 61/105 (paras. 80-95) of 8

December 2006.

4.2
In recent years the EESC has thoroughly explored in
various opinions (5) the positive and problematic issues arising
from the objectives of the Common Fishing Policy (CFP), and
how to sustainably exploit aquatic resources in the context of
sustainable development, taking account of the environmental,
economic and social aspects in a balanced manner. These
aspects should all be taken into account when analysing the
Commission's proposal for a Regulation.

4.3
Both the Communication and the Commission staff
working document assessing the impact of the proposed Regu-
lation mention that it will apply at present only to Community
bottom trawlers fishing in the Southwest Atlantic (SWA) outside
Argentina's Exclusive Economic Zone (EEZ).

(5) NAT/264 — Regulation on the European Fisheries Fund (OJ C 267,
27.10.2005); NAT/280 — Regulation establishing Community finan-
cial measures for the implementation of the common fisheries policy
and in the area of the Law of the Sea (OJ C 65, 17.3.2006), NAT/316
(OJ C 318, 23.12.2006), NAT/333 (OJ C 168, 20.7.2007), NAT/334 –
Halting the loss of biodiversity (OJ C 97, 28.4.2007); NAT/364 —
Regulation concerning the establishment of a Community framework
for the collection, management and use of data in the fisheries sector
and support for scientific advice regarding the Common Fisheries
Policy (OJ C 10, 15.1.2008).

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4.4
This fishing is carried out by around 30 Community
vessels in the Southwest Atlantic (SWA), where a RFMO has not
yet been set up, owing to the long-standing political conflict
between the United Kingdom and Argentina over the Falkland
Islands. This fishing activity can be described as follows:

— The high seas portion of this fishery is conducted on the
continental shelf and upper slope of the Patagonian Shelf. It
has existed for 25 years and the fishing industry and scien-
tists assure that it covers the same sandy and flat bottom
areas. Two types of fish are caught: shortfin squid (Illex) and
common squid (Loligo), and hake (Merlucius hubsi). None of
these species are classified as deep-water fish: classification is
based either on the criterion of depth (6) (now rejected by
the FAO) or biological nature (high longevity, late maturity,
slow growth or low fecundity (7)), which argues against addi-
tional protection. (8) In other words, it involves species of
medium and high productivity, without
significant by-
catches, in areas which are not thought to contain especially
vulnerable ecosystems.

— This fishing began thanks to EU funding of exploratory
fishing voyages intended to redistribute the Community
fleet. These voyages took place with on-board observers,
and the European Commission should have comprehensive
information about them.

— The Commission has also funded assessment studies, and
Spain — through the Spanish Oceanographic Institute (IEO)
— has run a programme of on-board scientific observers
over the entire period to provide continuing information on
these fishing activities, in addition to other information. (9)

— The species caught incidentally (by-catch) are minimum, the
main ones being pink cusk-eel or conger eel
(Genipterus
is a non-commercial
blacodes) and rock cod;
species and attempts are being made to introduce it to the
Community market.

the latter

— All the Community vessels work with special fishing permits
issued by individual Member States and controlled by satel-
lite (VMS). Moreover, around 20 % of the fleet carries scien-
tific observers on board.

— Both fishing for cephalopods (shortfin and common squid)
and hake takes place in two small high-sea areas that are
part of a much larger area of fishing activity that includes
both the Argentinean and Uruguayan EEZs, as well as the
Falklands government, where
area

controlled by the

(6) Data collected by the Spanish Oceanographic Institute (IEO observers),
which is consistent with satellite information from ‘blue boxes’, show
that over 95 % of fishing by the Spanish bottom trawling fleet fishing
on the high seas of the Patagonian shelf takes place at depths of less
than 400 metres.

(7) Study by Koslow et al., published in 2000 in the ICES Journal of Marine
Science: J.A. Koslow, G.W. Boehlert, J.D.M. Gordon, R.L. Haedrich, P.
Lorance and N. Parin, 2000. Continental Slope and deep-sea fisheries:
implications for a fragile ecosystem.

(8) See recital (10) of the proposal for a Regulation.
(9) See point 2.2. of the Commission Staff Working Document.

around 100 vessels from Argentina, third-countries and the
Falklands (10) operate.

— Of

the deep-water species listed in Annexes I and II of
Council Regulation (EC) No 2347/2002 establishing specific
access requirements and associated conditions applicable to
fishing for deep-sea stocks (11), only wreckfish (Polyprion
americanus) live in Patagonian waters, but no captures of this
species have been recorded either by the IEO or by the Com-
munity fleet.

— The jobs and wealth generated by these vessels are concen-
trated in a region of the Community that is highly depen-
dent on fishing (12).

In view of the above, the EESC suggests that should the
4.5
comprehensive oceanographic
area being
presently conducted conclusively demonstrate no evidence of
vulnerable marine ecosystems then the area (specifically geogra-
phically defined) should be exempted from the requirements of
the proposed regulation.

survey of

this

the Commission's
the EESC considers that
4.6 Moreover,
proposal does not ensure effective application and harmonisa-
tion of the regulations by Member States. As a result, the EESC
calls on the Commission to play a more prominent role in coor-
dinating and ensuring the effective implementation of the regu-
lation by Member States.

The EESC considers that the Commission should encou-
4.7
rage independent
in addition to the
scientific assessments
impact studies provided by the Member States. To this end, it
should make provision for the necessary funds to cover these
assessments.

4.8
Lastly, the EESC points out that the FAO is drawing up a
series of International Guidelines for the Management of Deep-
Sea Fisheries in the High Seas, and suggests that the Commis-
sion take into consideration the conclusions thereof.

5. Specific comments

5.1
The EESC considers that Article 1.1 of the proposal for a
Regulation refer to Community fishing vessels which carry out
fishing activities with bottom gears on virgin, unexploited fish-
eries in the high seas and that should take into account what is
mentioned in point 4.5 above.

(10) Korea, Japan, China, Taiwan and Uruguay
(11) OJ L 351, 28.12.2002, p.6.
(12) Input-output tables on the fish-canning industry in Galicia, published
by the regional government, show that of the 74 activities comprising
the Galician economy, 61 are dependent on fishing.

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The EESC believes that

5.2
‘vulnerable
marine ecosystem’ in Article 2 of the proposal for a Regulation
is vague and unclear, and could cause problems of interpreta-
tion. The work being carried out by the FAO could help to
clarify it.

the definition of

5.3
Under Article 4, paragraph 5, the EESC is concerned to
ensure that any amendments to fishing plans should also be
reviewed to make certain there are no significant adverse
impacts — i.e.
the amendments effectively address the
potential problems identified in the impact assessments. The
EESC is also concerned that the system set up will not be flex-
ible enough to adapt to fishing activities, which can be very
changeable and hard to predict.

that

fishing permit

5.4
The EESC believes that Article 5 could also be confusing,
as it does not differentiate between expiry and withdrawal of
the permit. The special
is an administrative
authorisation that will be valid if the procedures required for its
issue by the competent administration are met, as long as it is
not suspended or withdrawn by this administration. The admin-
istration should expressly inform the permit-holder of the with-
drawal or suspension of the fishing permit, and grant him/her a
hearing. Therefore, the EESC proposes the following wording:
‘The special fishing permit provided for in Article 3(1) shall be
withdrawn if the fishing activities fail to conform at any time to
the fishing plan submitted in accordance with Article 4(1)’.

Consequently, the second sentence of Article 5(2) should
5.5
read ‘The competent authorities shall examine such alterations
and may only modify the conditions of the permit if they do not
entail a relocation of the activities to areas where vulnerable
marine ecosystems occur or are likely to occur.’

5.6
Article 6 proposes that the use of bottom gears at depths
beyond 1 000 metres be prohibited. The EESC believes that this
provision should be deleted because there is not sufficient scien-
tific evidence to back this restriction, as has emerged from the
the
FAO's discussions on the International Guidelines
Management of Deep-Sea Fisheries in the High Seas. The fact
there is currently no fleet operating at depths beyond
that
1 000 metres does not mean that
the Regulation should
prevent this in the future, as long as the activity is sustainable.
Moreover, as the Commission itself acknowledges, this measure
is not recommended by Resolution 61/105 of the UN General
Assembly.

for

The EESC is concerned about the ambiguity of Article 8
5.7
of the proposed regulation. There seems no guarantee that all

Brussels, 29 May 2008.

areas where vulnerable ecosystems occur, or are likely to occur,
will be closed to fishing with bottom gear. There is no clear
obligation on Member States, having identified likely vulnerable
areas, to close them to their flagged vessels.

5.8
Article 10 (as is the case with Article 5) confuses expiry
with the revocation or withdrawal of a permit. The EESC there-
fore suggests the following wording for Article 10(1): ‘Failure to
in
conform to the fishing plan provided for in Article 4(1)
circumstances other than those specified in Article 5(2) shall
entail the withdrawal of the special fishing permit issued to the
fishing vessel concerned. Any fishing activities carried out from
the time of withdrawal of the special fishing permit shall be consid-
ered as fishing without holding a fishing permit …’.

5.9 With regard to Article 12, proposing the assignment of
observers on board 100 % of fishing vessels, the EESC considers
this measure disproportionate, unnecessary and, in some cases,
unenforceable, as not all vessels are equipped to accommodate
an extra person on board. Moreover, this aspect would mean a
further increase in running costs for enterprises. On the whole,
scientific bodies consider that a specific percentage of on-board
observers is sufficient to meet the proposed objectives.

5.10 With regard to Article 14, the EESC would also recom-
mend that the Commission provide a report to Council and
Parliament by 30 June 2009 as opposed to 30 June 2010, the
date currently stipulated in the article. The UN General
Assembly has agreed to review the implementation of the 2006
resolution in 2009 and it would be important for the Commis-
sion to provide a report in time for the UN General Assembly
Review.

The EESC believes that the timeframe for entry into
5.11
force (seven days after publication in the Official Journal of the
European Communities)
is not sufficient to allow vessels to
submit fishing plans and the Commission to assess and approve
them, and therefore proposes that a reasonable, realistic deadline
be set, making it possible for the obligation to be complied with
and the permit granted by the Commission.

5.12
Finally, the EESC considers that the regulation should
incorporate a provision or article requiring that an assessment
be conducted to ensure that the regulation of the fisheries will
provide for the long-term sustainability of the fish stocks and
the conservation of bycatch species. The former is called for in
the UN General Assembly resolution and both the former and
the latter are obligations contained in the 1995 UN Fish Stocks
Agreement for fisheries on the high seas.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS