Communication from the Commission to the European Parliament and the Council - Cetacean incidental catches in Fisheries : report on the implementation of certain provisions of Council Regulation (EC) No 812/2004 and on a scientific assessment of the effects of using in particular gillnets, trammel nets and entangling nets on cetaceans in the Baltic Sea as requested through Council Regulation (EC) No 2187/2005
Date: 2009-07-16
Institutions: European Commission
Subjects: Baltic Sea, fishing controls, fishing net, fishing regulations, law of the sea, marine mammal, protection of animal life, research report, scientific committee (EU)

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 16.7.2009 
COM(2009) 368 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Cetacean incidental catches in Fisheries: Report on the implementation of certain 
provisions of Council Regulation (EC) No 812/2004 and on a scientific assessment of the 
effects of using in particular gillnets, trammel nets and entangling nets on cetaceans in 
the Baltic Sea as requested through Council Regulation (EC) No 2187/2005 

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COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

Cetacean incidental catches in Fisheries: Report on the implementation of certain provisions 
of Council Regulation (EC) No 812/2004 and on a scientific assessment of the effects of using 
in  particular  gillnets,  trammel  nets  and  entangling  nets  on  cetaceans  in  the  Baltic  Sea  as 
requested through Council Regulation (EC) No 2187/2005 

1. 

BACKGROUND  

1.1. 

Council Regulation (EC) No 812/2004 

Council  Regulation  (EC)  No  812/20041  lays  down  measures  aimed  at  mitigating  incidental 
catches of cetaceans by fishing vessels. The Regulation identifies the fisheries where the use 
of acoustic deterrent devices, also known as pingers, is mandatory, the technical specifications 
and conditions  of use of these  instruments, and the fisheries where at-sea observer schemes 
have to be conducted. Member States are responsible for the implementation of the acoustic 
devices, for monitoring its efficiency, and implementing monitoring schemes according to the 
guidelines under this Regulation. 

1.1.1.  Reporting obligations  

According  to  Article  6  (EC)  Regulation  812/2004,  Member  States  must  send  to  the 
Commission  a  comprehensive  annual  report  on  the  implementation  of  certain  provisions  of 
the Regulation including "estimates of the overall incidental catches of cetaceans in each of 
the fisheries concerned". 

In  accordance  with  Article  7  of  that  Regulation  the  Commission,  after  receiving  Member 
States second annual report, has the obligation to report to the European Parliament and the 
Council  on  the  operation  of  this  Regulation.  The  report  should  be  based  on  an  assessment 
carried out by ICES and STECF of the Member States reports. 

1.2. 

Council Regulation (EC) No 2187/2005 

Council Regulation (EC) No 2187/20052 contains technical measures for the conservation of 
fisheries resources in the Baltic Sea.  

1.2.1.  Reporting obligations 

According to Article 27 of (EC) Regulation 2187/2005, the Commission shall "by 1 January 
2008,  (…)  ensure  that  a  scientific  assessment  of  the  effects  of  using  in  particular  gillnets, 

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Council Regulation (EC) No 812/2004 adopted in April 2004 lays down measures concerning incidental 
catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 
Council Regulation (EC) No 2187/2005 of 21 December 2005, for the conservation of fishery resources 
through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 
1434/98 and repealing Regulation (EC) No 88/98 

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trammel nets and entangling nets on cetaceans is conducted and its findings presented to the 
European Parliament and Council". 

1.3.  Merging of the two reports 

The  information  required  for  the  scientific  assessment  of  the  effects  of  using  in  particular 
gillnets, trammel nets and entangling nets on cetaceans under Regulation (EC) No 2187/2005 is 
very  similar  to  information  on  incidental  catches  derived  from  the  "At-sea  observer  schemes" 
and collected by Member States according to Regulation (EC) 812/2004. In particular, the report 
of  the  Commission  under  Article  7  of  the  latter  Regulation  shall  be  based  on  reports  from 
Member States, which shall include, among other, estimates of the overall incidental catches of 
cetaceans  in  each  of  the  fisheries  concerned.  Moreover,  reports  from  Members  States  shall 
include  an  assessment  of  the  conclusions  of  the  observers'  reports  and  any  other  appropriate 
information  including  any  research  conducted  within  Member  States  to  reduce  the  incidental 
capture of cetaceans in fisheries. Both reports would hence cover partly the same information on 
incidental  catches  of  cetaceans  from  fishing  gears.  Therefore,  the  Commission  has  decided  to 
merge the two requested reports to the European Council and Parliament.  

Following a preliminary assessment of the Member States' reports by the Commission, and in 
an interest to improve the application of the Regulation, the Commission proposed to organise 
a workshop on incidental catches of cetaceans (24-25 March 2009,  Brussels).  It was agreed 
that  conclusions  of  the  workshop  should  be  included  in  the  merged  report  to  make  it  as 
complete as possible on the basis of all available information. Due to this circumstance and the 
delayed  reception  of  some  Member  States  reports  it  was  not  possible  to  deliver  the  required 
report as requested by (EC) Regulation 2187/2005 in due time.  

2. 

CONTENT AND METHODOLOGY OF CURRENT REPORT 

The Commission has received the national reports for the years 2004-2005 and 2006 submitted 
by  the  Member  States  according  to  Article  6  of  (EC)  Regulation  812/2004.  The  International 
Council  for  the  Exploration  of  the  Sea  (ICES)  and  the  Scientific,  Technical  and  Economic 
Committee for Fisheries (STECF) have been asked to analyse these national reports with regard 
to  their  scientific  content  and  the  implementation  of  (EC)  Regulation  812/2004.  Their 
conclusions are reflected in this report. 

ICES  was  also  asked  to  conduct  a  scientific  assessment  of  the  effects  of  using  in  particular 
gillnets, trammel nets and entangling nets on cetaceans in the Baltic Sea. This report contains 
the results of this assessment as well as other available data on incidental catches of cetaceans in 
the Baltic Sea. 

As part of the process of assessing the implementation of (EC) No 812/2004, the Commission 
organised a workshop in Brussels 24-25 March 2009. The main outcomes of the workshop as 
well as a proposed way forward are also presented in the report.  

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3. 

ANALYSIS OF MEMBER STATES REPORTS ON (EC) REGULATION 812/2004 

ICES3 and STECF4 review of the national annual reports found "considerable variation in the 
format and content. There is little evidence of cooperation between Member States, and most 
of  the  work  reported  has  been  the  result  of  independent  national  efforts."  As  regards 
incidental catches information, "few recent estimates of total by-catch of small  cetaceans in 
individual fisheries are available from European waters"3. 

The Commission concludes that the received national annual reports rarely offer a clear image 
of  the  actions  carried  out  by  Member  States  in  accordance  with  (EC)  Regulation  812/2004. 
Only a few Member States have been able to prioritise the mitigation of cetacean incidental 
catches. France and U.K. are the only Member States providing information on estimated total 
annual incidental catches. 

It has become evident to the Commission that most Member States appear to have difficulties 
with  the  implementation  of  (EC)  Regulation  812/2004  and  in  particular  with  the  following 
requirements: 

3.1. 

Obligation  to  use  acoustic  deterrent  devices.  Technical  specifications  and 
conditions of use 

Those Member States who have reported on the use of acoustic deterrent devices, also known 
as  pingers,  concluded  that  these  instruments  are  highly  costly  and  that  they  do  not  always 
prove  to  be  effective,  i.e.  what  could  act  as  a  deterrent  device  for  some  cetacean  species, 
could  also  offer  an  attractive  signal  to  other  animals.  The  handling  of  the  instruments  is 
reported  to  be  problematic  and  to  represent  a  safety  hazard  for  fisherman.  However,  a  few 
Member States are undertaking research projects aiming at the development of more effective 
acoustic deterrents.  

The  Commission  is  aware  of  the  difficulties  in  the  use  of  pingers  and  recognises  the  effort 
undertaken by some Member States in their research on pingers, including those which are not 
obliged  to  use  pingers.  Research  on  the  effectiveness  of  these  devices  and  other  mitigation 
measures  is  still  ongoing,  at  national  and  international  level.  Research  and  dissemination  of 
best-practices among the different Member States should be a priority. 

Considering  Member  States  incomplete  and  inconclusive  reporting  on  pingers  use  and  the 
insufficient available information, the Commission can not draw a clear conclusion from the 
Member States reports on the effectiveness of the use of pingers to reduce cetacean incidental 
catches. 

3.2. 

Obligation  to  design  and  implement  at-sea  observer  schemes,  and  monitor 
cetaceans' incidental catches 

Concerning  the  set  up  of  at-sea  observer  schemes,  this  measure  seems  to  have  a  weak 
application.  Some  Member  States  claim  not  to  have  enough  resources  (financial  or  human)  to 
implement  these  programmes  and/or  are  not  able  to  cover  all  areas  and  information  on  the 

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ICES  advise  2008.  1.5.1.2  Status  of  small  cetaceans  and  by-catch  in  European  waters  (document 
available on-line) 
28th  PLENARY  MEETING  REPORT  OF  THE  SCIENTIFIC,  TECHNICAL  AND  ECONOMIC 
COMMITTEE FOR FISHERIES (PLEN-08-02) (Document available on request) 

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schemes adopted and observers' reports are often incomplete. Six of the twenty-two Member 
States  reported  that  their  fishing  activity  did  not  fall  under  the  scope  of  the  Regulation.  Some 
Member States presented information based on research studies being developed at national 
level  or  through  international  partnerships.  Other  Member  States  collect  information  from 
their  national  port  authorities  or  in  interviews  with  fishermen.  Only  a  few  Member  States 
reported  cetaceans'  incidental  catches  and  the  Commission  hence  concludes  that  the  scarce 
information does not provide a clear picture of the interaction between fisheries and cetacean 
populations and the Commission is therefore not in a position to carry out a comprehensive 
and objective analysis of cetacean incidental catches in EU Waters. 

3.3. 

Discussion  

The reporting on the measures implemented under (EC) Regulation 812/2004 shows that only 
a few Member States are making sufficient efforts to enforce this Regulation. It is clear that 
its implementation requires a great commitment and effort from Member States, and most of 
them have not been able to comply with it for the reasons explained above. The Commission 
can  conclude  that  the  reduction  of  cetacean-fisheries  conflicts  is  still  in  an  early  stage  of 
commitment. 

The disparity in the results can be explained by the fact that Member States had to apply this 
Regulation at different times for different areas. Additionally, due to the problems inherent to 
the  use  of  pingers,  some  Member  States  have  delayed  its  application  and  instead 
coordinated/participated in different national and international research projects aimed at the 
improvement of mitigation devices and techniques. 

The  Commission  co-finances  several  projects  through  LIFE,  the  EU’s  financial  instrument 
supporting  environmental  and  nature  conservation  projects,  and  some  of  these  projects 
contribute  to  the  implementation  of  Natura  2000  in  the  marine  environment.  Ways  of 
avoiding,  reducing,  or  otherwise  mitigating  incidental  catches  of  marine  mammals  are 
frequently addressed in these LIFE projects. 

Whilst (EC) Regulation 812/2004 indicates the fisheries to which Member States should pay 
extra  attention  as  regards  the  impact  on  the  incidental  capture  and  killing  of  cetacean,  it 
should  also  be  highlighted  that  measures  to  reduce  the  impacts  of  fisheries  on  cetacean 
species are not exclusive to this Regulation. Member States already have an obligation under 
Article  12  of  Council  Directive  92/43/EEC,  the  Habitats  Directive,  to  take  research  or 
conservation  measures  to  ensure  that  incidental  capture  of  cetaceans  does  not  have  a 
significant negative impact on the species. Under the Habitats Directive, all cetacean species 
benefit from a system of strict protection in their natural range. Member States shall undertake 
surveillance of the conservation status of cetaceans, as well as establish a system to monitor 
their incidental capture and killing. Furthermore, in accordance with Article 6, Member States 
shall take appropriate steps to avoid, in the special areas of conservation, the deterioration of 
the habitats of the species, as well as the significant disturbance of the species for which those 
areas  have  been  designated.  A  number  of  such  areas  have  been  designated  for  the  species 
Phocoena phocoena and Tursiops truncatus. 

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4. 

SCIENTIFIC  ASSESSMENT  ON  THE  EFFECT  OF  GILLNETS,  TRAMMEL  NETS  AND 
ENTANGLING NETS ON CETACEANS IN THE BALTIC SEA 

The cetacean usually present in the Baltic Sea is the harbour porpoise (Phocoena phocoena). The 
population is estimated at less than 1000 individuals5. According to Member States reports no 
cetaceans were incidentally caught in the Baltic Sea by the observed fisheries during 2005 and 
2006.  In  April  2008  ICES  reported  to  the  Commission  that  the  data  supplied  by  Member 
States were insufficient to make a scientific assessment on the effect of gillnets, trammel nets 
and entangling nets on cetaceans in the Baltic Sea.  

There  is  also  an  obvious  lack  of  other  information  on  incidental  catches  of  cetaceans  in 
fishing  gear  in  the  Baltic  Sea.  Available  sources  are  mainly  on  stranded  animals  with 
markings  suggesting  that  the  animals  have  died  in  nets.  A  recent  German  study  reports  on 
more than 150 stranded harbour porpoises in 2007 along the German Baltic shores with 47% 
regarded  incidental  catches  or  suspected  incidental  catches6.  In  order  to  make  a  full 
assessment of the effect of gillnets, trammel nets and entangling nets on incidental catches of 
Baltic  cetaceans,  data  on  strandings  is  however  not  enough  because  it  does  not  give 
information on where and in which gear the animals were trapped. Consequently, at this stage, 
no precise conclusions on the effect of gillnets, trammel nets and entangling nets on cetaceans 
in the Baltic Sea can be drawn. 

4.1. 

Discussion 

The  current  Baltic  harbour  porpoise  population  is  alarmingly  low  with  less  than  1000 
individuals remaining5. Historical accounts both on population and by-catch levels show that 
the species has been both more numerous and spread further north in the Baltic not that long 
ago7,8.  Except  for  the  risk  of  depleted  genetic  diversity  which  limits  the  possibility  for  the 
population  to  adjust  to  changes  in  the  environment,  depleted  populations  are  also  more 
vulnerable to incidental catches than healthy populations. 

As regards, the lack of data on incidental catches of harbour porpoise in the Baltic Sea, it is 
probably linked to the following reasons: 

(1) 

(2) 

The small population of the Baltic harbour porpoises.  

The non-reporting of fishermen when cetaceans are caught. Indications of by-
caught  harbour  porpoises  being  dumped  overboard  are  reports  of  stranded 
cetaceans with net marks on the Baltic coast9, 10.  

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ASCOBAN, Recovery plan for Baltic Harbour Porpoises. Draft, 8 April 2009 
ICES  WKFMMPA  Report  2008  ICES  CM  2008/MHC:11  Report  of  the  Workshop  on  Fisheries 
Management in Marine protected areas 
Koschinski, S (2002) Current knowledge on harbour porpoises (Phocoena phocoena) in the Baltic Sea. 
Ophelia. 
Lindroth,  A  (1962)  Baltic  salmon  fluctuations  2:  porpoise  and  salmon.  Reports  of  the  institute  of  the 
Swedish Freshwater Research Drottningholm 
Siebert U. et al (2006) A decade of harbour porpoise occurrence in German waters – analyses of aerial 
surveys, incidental sightings and strandings. Journal of Sea research.  
Swedish  Federal  Agency  for  Nature  conservation  and  the  Swedish  board  of  Fisheries  (2008)  Action 
plan for the conservation of harbour porpoise 2008-2013 

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The conclusions in the latest Recovery plan for Baltic Harbour Porpoises from ASCOBAN5 
(Conservation of Small Cetaceans of the Baltic and North Seas), confirm these assumptions: 
"With  an  extremely  low  density  of  porpoises,  the  animals  are  rarely  seen  or  caught  by 
fishermen  …  and  (fishermen)  are  reluctant  to  accept  any  claims  by  scientists  or 
conservationist  that  by-catch  is  a  serious  threat  to  the  porpoise's  population.  Therefore, 
without by-catch mitigation, porpoises will remain scarce (making it difficult to obtain better 
abundance  estimates),  the  by-catch  will  remain  small  (making  it  difficult  to  quantify 
removals) and fishermen will remain incredulous towards the idea that fishery by-catch is a 
problem for porpoise conservation". In the light of this, it would be quite hazardous to conclude 
that no reporting of by-catch means that there is no problem with by-catch. 

5. 

WORKSHOP ON THE IMPLEMENTATION OF (EC) REGULATION 812/2004  

The  Commission  is  aware  of  the  difficulties  inherent  to  the  implementation  of  the  (EC) 
Regulation 812/2004 and aims to improve the situation. It therefore organised a workshop on 
this subject in Brussels, 24-25 March 2009. The workshop aimed to collect information and to 
set a basis for reflection and define a follow-up of (EC) Regulation 812/2004. The programme 
covered the following points: 

•  Presentation  from  the  Commission  on  the  assessment  of  four  years  of 

implementation of (EC) Regulation 812/2004; 

•  Status of cetaceans populations in EU waters; 

•  An overview of the implementation of the Regulation in the different EU marine 

regions; 

•  The  most  recent  scientific  and  technical  developments  on  acoustic  deterrent 

devices and other mitigation measures. 

The  workshop  participants 
representatives, scientists and the two relevant Commission services for this subject.  

included  national  administrations,  RACs  and  ACFA 

Some main outcomes of the workshop: 

•  There is a need for improved knowledge on cetacean abundance and distribution 
in  all  EU  waters.  The  workshop  also  showed  that  occurrence  of  cetaceans  is 
variable.  

•  Participants  agreed  that  pingers  are  effective  deterrents  for  harbour  porpoise. 
However,  further  developments  are  needed  to  improve  their  technical  and 
practical  applications,  without  jeopardizing  the  safety  of  fishermen.  Fishermen 
should  be  involved  from  the  testing  trials  to  the  practical  application  of  those 
devices. There is also on going research considering other mitigation devices and 
techniques.  In  case  these  prove  to  be  efficient,  alternatives  to  pingers  should  be 
considered.  

•  The use of mitigating devices and observations schemes for smaller vessels than 

12 m and 15 m should be considered.  

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•  Some Member States managed to implement at-sea monitoring schemes according 
to  the  specifications  required  in  (EC)  Regulation  812/2004.  Results  showed  that 
the  level  of  data  precision  required  in  the  Regulation  is  very  ambitious  and 
sometimes impossible to achieve for rare by-caught species. 

•  Monitoring  schemes  should  be  made  more  efficient  i.e.  through  cross-regulation 
monitoring and by aggregating national datasets. Areas where the use of pingers is 
mandatory should also be considered for monitoring. 

•  Cooperation  with  fishing  industry  needs  to  be  improved,  namely  to  increase 
information on the use of mitigation measures to reduce the incidental catches of 
cetaceans, or any other group of animals with no commercial interest.  

6. 

CONCLUSIONS AND WAY FORWARD 

The  conclusions  are  based  on  the  analysis  of  the  national  reports,  on  the  outcome  of  the 
workshop  on  the  implementation  of  (EC)  Regulation  8l2/2004  (see  point  5)  and  the 
conclusions  from  the  scientific  assessment  of  the  effects  of  using  gillnets,  trammel  nets  and 
entangling  nets  on  cetaceans  in  the  Baltic  Sea.  Although  most  Member  States  have  reported 
low  or  no  incidental  catches  in  EU  waters,  scientific  evidences  from  at-sea  monitoring 
schemes or from post-mortem analysis of stranded animals continue to show existing conflicts 
between  cetacean  and  fisheries.  Information  on  cetacean  populations  is  fragmented  and 
population status remains unclear.  

The  Commission  recognizes  that  some  Member  States  have  made  considerable  efforts  to 
correctly  implement  (EC)  Regulation  8l2/2004  but  also  acknowledges  that  some  Members 
States are lagging behind. Although the Commission recognizes that there could be reasons to 
amend the regulation at a later stage, full implementation across Member States has not been 
achieved  so  far  and  therefore  it  has  not  been  possible  to  assess  the  impact  of  the  existing 
measures to mitigate incidental catches of cetaceans. Best practices presented in the workshop 
show  that  it  is  possible  to  achieve  good  results  under  the  present  circumstances.  The 
Regulation provides for flexibility which must be used to the full.  

Considering the need to reduce the impact of fisheries on cetacean populations in EU waters, 
the  Commission  urges  Member  States  to  take  all  the  necessary  measures  to  improve  the 
implementation of (EC) Regulation 812/2004. The Commission would also like to emphasize 
Member States obligations under the Habitats Directive to monitor the incidental capture and 
killing of all whales and cetaceans and ensure that incidental capture or killing do not have a 
significant impact on the populations. In this regard, for other fishing activities and for other 
areas where incidental catches are problematic and not covered by (EC) Regulation 812/2004, 
Member  States  have  the  responsibility  to  take  appropriate  measures  to  safeguard  cetacean 
populations.  

As a follow-up to the workshop the Commission will however carefully consider these main 
points: 

•  the  full  use  of  the  flexibility  in  (EC)  Regulation  812/2004,  in  reply  to  problems 

concerning monitoring schemes, gears and areas;  

•  including the Black Sea in (EC) Regulation 812/2004; 

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•  encouraging  Member  States  to  widen  current  monitoring  schemes,  to  integrate 
observations  on  incidental  catches  of  cetaceans,  following  the  example  of  some 
Member States.; 

•  encouraging the debate on mitigation measures with industry within the RACs 

•  identifying measurable objectives for maximum acceptable incidental-catch levels 

for different cetacean populations 

The  Commission  will  also,  in  order  to  harmonise  information  reported  by  Member  States, 
revise  the  format  for  reporting  received  from  ICES11  and  revised  by  STECF12,  and  make  it 
available  to  Member  States.  As  from  next  year,  the  Commission  would  hence  expect  to 
receive complete National Reports from all Member States concerned with all the information 
required in the Regulation as well as any other appropriate information as requested in article 
6(2).  

The critical state of the Baltic harbour porpoise population also needs to be further addressed 
by the Community and consequent actions need to be considered. According  to  ICES latest 
advice  on  cetaceans  "The  best  conservation  efforts  are  likely  to  include  stakeholder 
involvement"3.  The  Commission  agrees  with  this  approach  and  would  like  to  encourage 
Member  States  and  stakeholder  organisation  to  investigate  ways  of  minimising  incidental 
catches of harbour porpoises in the Baltic. In order to improve  the current  knowledge base, 
the  Commission  launched  recently  a  call  for  tenders  to  carry  out  a  study  on  "cetacean  by-
catch data collection in the Baltic, Kattegat and the Sounds". 

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ICES proposal is available in ICES website.  
Available  under  point  3.6.6.  of  the  28th  plenary  meeting  report  of  the  Scientific,  Technical  and 
Economic Committee for Fisheries (PLEN-08-02). 

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