Council Regulation (EC) No 734/2008 of 15 July 2008 on the protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears
Date: 2008-07-15
Institutions: Council of the European Union
Subjects: deep-sea fishing, environmental protection, fishery management, fishing permit, fishing rights, marine ecosystem

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Official Journal of the European Union

30.7.2008

COUNCIL REGULATION (EC) No 734/2008

of 15 July 2008

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
Community, and in particular Article 37 thereof,

establishing the European

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

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
instruments
Migratory Fish Stocks. These international
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
fisheries
management organisations or arrangements.

regional

The absence of a regional fisheries management organi­
sation 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 policy (2) provides that the common fisheries
policy is to apply the precautionary approach in taking

(1) Opinion of 4 June 2008 (not yet published in the Official Journal).
(2) OJ L 358, 31.12.2002, p. 59. Regulation as amended by Regulation

(EC) No 865/2007 (OJ L 192, 24.7.2007, p. 1).

(4)

(5)

that

the Commission may

measures to minimise the impact of fishing activities on
the same Regulation
marine ecosystems. Article 7 of
on
provides
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 aquatic resources, or to the marine ecosystem
resulting from fishing activities and requiring immediate
action.

decide

that

scientific

The Community is committed to the conservation of
marine ecosystems such as reefs, seamounts, deep water
corals, hydrothermal vents and sponge beds. There is
the
information showing
abundant
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
the world’s ocean by appropriate
global coverage of
regional
and management
conservation
fisheries
regimes. There are, however, certain areas of the high
such a body
seas
encounters significant difficulties.

for which the establishment of

By Resolution 61/105 of the General Assembly of the
United Nations, adopted on 8 December 2006, the inter­
national 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
work undertaken within the FAO to develop inter­
national guidelines on the management of these fishing
activities in the framework of the Code of Conduct for
Responsible Fisheries is also of high relevance for the
design and adoption of such measures, as well as for
their implementation by Member States.

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(6)

(7)

(8)

(9)

or

organisation

establishment of

The Community has a sizeable fleet conducting bottom
fishing in areas not regulated by a regional
fisheries
management
arrangement with
competence to regulate such fishing activities and for
such organisation or
which the
arrangement cannot be expected in the short
term.
Without prejudice to continued efforts to remedy these
remaining spatial gaps
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
in
respect of
the Community
must act in accordance with the guidance provided by
the General Assembly in Resolution 61/105.

therefore adopt appropriate measures
In doing so,
these fleets.

in the international

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 indi­
vidual bottom fishing activities would have significant
adverse impacts on vulnerable marine ecosystems, and
these activities
to ensure that
would have
are
they
managed to prevent such impacts, or not authorised to
proceed’.

is assessed that
adverse

it
significant

impacts,

if

(10)

(11)

(12)

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 provisions concerning special fishing
permits (1) and Commission Regulation (EC) No 2943/95
of 20 December 1995 setting out detailed rules for
applying Council Regulation (EC) No 1627/94 (2).
In
such permits
the issuance and validity of
addition,
must be subject to specific conditions ensuring that the
the authorised fishing activities has been
impact of
properly assessed and that
fishing
operations complies with such assessment.

the conduct of

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 Systems (3).

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. For this
it is imperative to prohibit the use of bottom
reason,
gears in areas that have not undergone an appropriate
scientific assessment as to the risks of significant adverse
impacts
such fishing activities might have on
vulnerable marine ecosystems.

that

a

encounter with

The violation of specific conditions such as those relating
to unassessed areas, the operation of the Vessel Moni­
toring System and the relocation of activities in case of
unforeseen
vulnerable marine
in irreparable damage to such
ecosystem may result
ecosystems
included
among the list of serious infringements contained in
Council Regulation (EC) No 1447/1999 of 24 June
types of behaviour which
1999 establishing a list of
seriously infringe the rules of
the common fisheries
policy (4).

and deserves

therefore

to be

The protection of
individuals with regard to the
processing of personal data is governed by Regulation
(EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection
of individuals with regard to the processing of personal
data by the Community institutions and bodies and on
fully
the free movement of
applicable to the processing of personal data for the
purposes of this Regulation, in particular as regards the
rights of data subjects to access, rectification, blocking
and erasure of data and notification to third parties,
which have not in consequence been further particu­
larised in this Regulation,

such data (5), which is

HAS ADOPTED THIS REGULATION:

Article 1

Scope

1.
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

2.
vessels whose areas of operation lie within areas:

(a) under the responsibility of a regional fisheries management
organisation or arrangement with competence to regulate
such fishing activities;

(1) OJ L 171, 6.7.1994, p. 7.
(2) OJ L 308, 21.12.1995, p. 15.
(3) OJ L 333, 20.12.2003, p. 17.

(4) OJ L 167, 2.7.1999, p. 5.
(5) OJ L 8, 12.1.2001, p. 1.

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(b) for which a process for the establishment of a regional
fisheries management organisation is under way; 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 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:

Article 2

Definitions

(a)

the intended location of the activities;

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

(b) the targeted species;

(a)

‘marine ecosystem’ means a dynamic complex of plant,
animal and microorganism communities and their non-
living environment interacting as a functional unit;

(c)

the type of gears and the depth at which they will be
deployed, and

impacts

(b) ‘vulnerable marine ecosystem’ means any marine ecosystem
is,
whose integrity (i.e. ecosystem structure or function)
according to the best scientific information available and
threatened by significant
to the principle of precaution,
adverse
contact with
bottom gears in the normal course of fishing operations,
including, inter alia, reefs, seamounts, hydrothermal vents,
cold water corals or cold water sponge beds. The most
vulnerable ecosystems are those that are easily disturbed
and in addition are very slow to recover, or may never
recover;

resulting from physical

(d) the configuration of the bathymetric profile of the seabed in
the intended fishing grounds, where this information is not
already available to the competent authorities of the Flag
State concerned.

The competent authorities shall

2.
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.

issue a special

(c)

adverse

impacts

impacts’ means

in combination or

‘significant
(evaluated
individually,
cumulatively) which
compromise ecosystem integrity in a manner that impairs
the ability of affected populations to replace themselves and
that degrades the long-term natural productivity of habitats,
or causes on more than a temporary basis significant loss of
species richness, habitat or community types;

(d) ‘bottom gears’ means gears deployed in the normal course
of fishing operations in contact with the seabed, including
bottom trawls, dredges, bottom-set gill nets, 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 shall have a special
fishing permit.

2.
The special fishing permit shall be issued in accordance
with Regulation (EC) No 1627/94 and subject to the conditions
established in this Regulation.

scientific and technical

For the purposes of the implementation of the assessment
3.
referred to in paragraph 2, the competent authorities shall rely
on the best
information available
concerning the location of vulnerable marine ecosystems in
the areas in which the fishing vessels concerned intend to
available,
operate. That
scientific data on the basis of which the likelihood of
occurrence of
estimated. The
assessment process shall include appropriate elements of inde­
pendent scientific peer review.

information shall

such ecosystems

include, where

can be

4.
The evaluation of the risk of significant adverse impacts
the
ecosystems
on vulnerable marine
assessment referred to in paragraph 2 shall take into account,
as appropriate, differing conditions prevailing in areas where
fishing activities with bottom gears are well established and in
areas where fishing such activities have not taken place or only
occur occasionally.

carried out under

The

authorities

competent

5.
criteria in the conduct of
paragraph 2.
impacts are significant or not,
likely adverse impacts
provided are significant.

apply precautionary
shall
referred to in
the assessment
In case of doubt as to whether the adverse
the
resulting from the scientific advice

they shall consider that

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6. Where the assessment concludes 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
In the
applicants to amend the fishing plan to avoid them.
absence of such amendments, the competent authorities shall
refrain from issuing the requested special fishing permit.

Article 5

Conditions for validity

1.
The special fishing permit provided for in Article 3(1)
shall make it explicit that fishing activities carried out under
it must conform to the fishing plan submitted in accordance
with Article 4(1) at all times.

2. 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 shall
not authorise them if they entail a relocation of the activities to
areas where vulnerable marine ecosystems occur or are likely to
occur.

If another vulnerable marine ecosystem is encountered in
2.
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 is reached where no vulnerable marine
ecosystems are found.

3.
The fishing vessel shall report each encounter to the
competent authorities without delay, providing precise infor­
mation 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
1.
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 delay in respect of their vessels and
immediately notify the Commission of
closure. The
Commission shall circulate the notification to all Member
States without delay.

the

3.
Failure to conform to the fishing plan provided for in
in circumstances other than those specified in
Article 4(1)
paragraph 2 of this Article shall entail the withdrawal by the
flag State of the special fishing permit issued to the fishing
vessel concerned.

2. Without prejudice to Article 7 of Regulation (EC) No
2371/2002, the Commission shall, where appropriate, submit
proposals to the Council in accordance with Article 37 of the
Treaty for the adoption of Community measures to implement
area closures, whether on the basis of the information notified
by Member States or on its own initiative.

Article 6

Unassessed areas

Article 9

Vessel monitoring system

1.
In the areas where no proper scientific assessment has
been carried out and made available, the use of bottom gears
shall be prohibited. This prohibition shall be subject to the
review of this Regulation foreseen in Article 13.

1.
Notwithstanding Article 11(1) of 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.

2.
Bottom fishing activities shall be permitted under the
conditions laid down in this Regulation where this scientific
assessment shows that vulnerable marine ecosystems will not
be at risk.

Article 7

Unforeseen encounters with vulnerable marine ecosystems

1. 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
resume operations only when it has
concerned.
reached an alternative site at a minimum distance of
five
nautical miles from the site of the encounter within the area
foreseen in its fishing plan provided for in Article 4(1).

shall

It

After returning from the sea trip, the vessel shall not leave
2.
the port again until the satellite tracking device is functioning to
the satisfaction of the competent authorities.

Article 10

Serious infringements

Any fishing activities carried out from the time when the
1.
vessel departed from its fishing plans in circumstances other
than those specified in Article 5(2) shall be considered as
fishing without holding a fishing permit and therefore as
behaviour which seriously infringes the rules of the common
fisheries policy.

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Repeated instances of non-compliance with the obli­
2.
gations laid down in Articles 6, 7 and 9 shall be considered
as behaviour that seriously infringes the rules of the common
fisheries policy.

(b) an employee of the master of the vessel to which he is

assigned;

Article 11

Observers

Observers shall be on-board all vessels to which a special
1.
is issued. The
fishing permit provided for
observers shall observe the fishing activities of
the vessel
throughout the execution of its fishing plan provided for in
Article 4(1).

in Article 3(1)

The number of observers covering fishing activities in a fishing
area shall be reviewed on 30 July 2009.

2.

The observer shall:

logbook,

(a) record independently, in the same format as that used in the
vessel’s
catch information prescribed in
Article 6 of Council Regulation (EEC) No 2847/93 of
12 October 1993 establishing a control system applicable
to the common fisheries policy (1);

the

(b) record any instances of alteration of the fishing plan as

referred to in Article 5(2);

(c) document

any unforeseen encounters 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 following receipt of a
written request.

3.

The observer shall not be any of the following:

(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 12

Information

Insofar as fishing vessels flying their flag fall within the
1.
scope of this Regulation, 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:

(a)

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 observers, broken down by quarter of the year, by type
of gear and by species;

(b) compliance with

the

the
fishing
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 serious infringements as referred to in Article 10;

and with

plans

(c)

their implementation of Article 8.

2.
The reports submitted in accordance with paragraph 1
shall be accompanied by all the impact assessments carried
out by the Member State concerned pursuant to Article 4(2)
during the reported six-month period.

(a) a relative of the master of the vessel or other officer serving

on the vessel to which the observer is assigned;

(1) OJ L 261, 20.10.1993, p. 1. Regulation as last amended by Regu­
lation (EC) No 1967/2006 (OJ L 409, 30.12.2006, p. 11), as
corrected by OJ L 36, 8.2.2007, p. 6.

The Commission shall make the information received
3.
pursuant to paragraphs 1 and 2 publicly available,
inter alia,
through the FAO, and shall also transmit it without delay to the
relevant scientific bodies as well as to Member States at their
request.

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Article 13

Review

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

Article 14

Entry into force
This Regulation shall enter into force on the 30th day following 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, 15 July 2008.

For the Council
The President

M. BARNIER