COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the implementation of certain provisions of Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98
Date: 2011-09-21
Institutions: European Commission
Subjects: EU Member State, by-catch, data collection, disclosure of information, fishing controls, fishing vessel, marine mammal, signalling device

EUROPEAN COMMISSION 

Brussels, 21.9.2011 
COM(2011) 578 final 

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the implementation of certain provisions of Council Regulation (EC) No 812/2004 
laying down measures concerning incidental catches of cetaceans in fisheries and 
amending Regulation (EC) No 88/98 

 
 
 
 
  
 
COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN 
PARLIAMENT AND THE COUNCIL 

on the implementation of certain provisions of Council Regulation (EC) No 812/2004 
laying down measures concerning incidental catches of cetaceans in fisheries and 
amending Regulation (EC) No 88/98 

1. 

INTRODUCTION 

Council  Regulation  (EC)  812/20041  lays  down  measures  for  the  reporting  of  incidental 
catches of cetaceans in defined fisheries and measures to mitigate against such catches. The 
Regulation  identifies  fisheries  where  the  use  of  acoustic  deterrent  devices  (ADDs)  is 
mandatory,  the technical  specifications and conditions of use of these devices, and fisheries 
where observer schemes to obtain representative data have to be conducted in order to assess 
the  extent  of  bycatch  of  cetaceans.  Member  States  are  responsible  for  enforcing  the  use  of 
ADDs and monitoring their efficacy over time, as well as implementing monitoring schemes 
according to the guidelines under this Regulation. 

Under Article 6 of the Regulation, Member States must send the Commission an annual report 
on the implementation of certain provisions of the Regulation. In accordance with Article 7, 
the  Commission,  after  receiving  the  second  of  these  reports  from  Member  States,  must 
produce  a  Communication  to  the  European  Parliament  and  the  Council  on  the  operation  of 
this Regulation2. Following the submission of the fourth annual report by Member States, the 
Commission  must  present  an  updated  Communication  to  the  European  Parliament  and  the 
Council.  These  Communications  must  be  based  on  the  assessment  of Member States reports 
and also take account of assessments made by the International Council for the Exploration of 
the Sea (ICES) and the Scientific, Technical and Economic Committee for Fisheries (STECF). 
This document is intended to meet the Commission's second reporting obligation.  

This Communication contains a summary of the information collected during 2007-2009 and 
submitted  by  Member  States  to  the  Commission,  in  accordance  with  Article  6  of  the 
Regulation.  ICES  and  STCEF  were  also  requested  to  analyse  the  scientific  content  of  the 
national  reports,  the  implementation  of  the  Regulation  and  any  additional  scientific  reports 
provided  by  Member  States.  The  conclusions  from  this  analysis  by  ICES  and  STECF  are 
reflected. 

2. 

ANALYSIS OF MEMBER STATES REPORTS  

Reporting by the Member States under Regulation (EC) 812/2004 has improved since the first 
Communication  from  the  Commission  to  Council  and  the  European  Parliament  in  2009. 
However the information delivered by Member States continues to be variable in content and 
format.  Both  ICES  and  STECF  point  out  that  the  inconsistencies  found  in  the  information 

1 

2 

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 
COM(2009) 368 final  

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provided  by  Member  States  limit  the  extent  of  any  assessment  as  to  how  the  Regulation  is 
being implemented. Only some Member States (Ireland, Netherlands, Spain, Seden and UK) 
have  voluntarily adopted the  proposed format for reporting suggested by ICES and STECF. 
This  standard  format  was  formally  adopted  by  Member  States  in  May  2010.  This  should 
improve the consistency of future reporting. 

Among the twenty-two coastal EU Member States all but one has provided at least one annual 
report.  Six  Member  States  (Belgium,  Cyprus,  Greece,  Malta,  Bulgaria  and  Romania)  have 
informed the Commission that they have no reporting obligations under the Regulation. This 
is  either  because  their  fleets  did  not  carry  out  any  fishing  operations  which  fall  under  the 
scope of Annex I (the use of ADDs) or Annex III (onboard observers) of the Regulation or in 
the case of Bulgaria and Romania because their fishing operations take place exclusively in 
the Black Sea, which is not covered under the Regulation. Denmark, Estonia, Finland, France, 
Ireland,  Italy,  Latvia,  Netherlands,  Poland,  Spain,  Sweden  and  UK  have  submitted  reports 
with onboard observer data. All but one has provided some estimates of incidental catches. 

Despite  evidence  of  improvement,  however,  it  is  evident  to  the  Commission  that  many 
Member States still appear to have difficulties with the implementation of the Regulation and 
in particular with the requirements set out below:  

2.1. 

Obligation to use ADDs 

Eight Member States (Denmark, Estonia, France, Germany, Ireland, Poland, Spain and UK) 
currently have fisheries in which ADDs are mandatory. These Member States have reported 
on  their  usage  through  direct  monitoring  by  control  and  enforcement  agencies,  interviews 
with  fishermen  and  through  pilot  studies.  In  general,  the  level  of  implementation  with  the 
provisions in Articles 2 and 3 of the Regulation is not clear and there are indications from the 
national  reports  that  the  actual  usage  by  vessels  and  the  monitoring  carried  out  by  Member 
States remains unsatisfactory.  

All of the Member State using ADDs have concluded that further work is needed to improve 
the  reliability,  effectiveness  and  practical  handling  of  the  current  devices.  These  problems 
have led virtually all of the Member States affected to comission studies to monitor and assess 
the  use  of  ADDs  and  improve  their  practical  handling  and  technical  characteristics  in 
cooperation with several manufacturers. Associated safety hazards with the use of ADDs have 
also  been  considered  but  reports  from  Member  States  indicate  that  these  can  be  largely 
overcome through improved design, better quality control at supplier level and also through 
changes  to  operational  practice.  Testing  of  new  types  of  ADDs  that  have  become 
commercially available has also been carried out by some Member States and at least one of 
these  new  devices  has  given  encouraging  results.  There  has  been  a  good  level  of  industry 
input into all of these trials. Such collaborative research should be continued.  

The  annual  cost  of  deploying  ADDs  also  remains  an  issue.  This  can  vary  considerably  in 
relation to the technology employed in the devices and the rate of loss of ADDs in specific 
fisheries.  The  costs  are  considered  to  be  significant  for  static  net3  fisheries  and  these  costs 
combined with poor reliability and negative impacts on fishing operations have discouraged 
the use of ADDs and compliance with the Regulation. Several Member States have, however, 
instigated  grant  aid  schemes  or  provided  fishermen  with  ADDs  free  of  charge  to  offset  the 

3 

Static nets include gillnets, entangling nets and trammel nets 

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costs and to try and increase usage. This has helped in some cases but is not uniform across 
Member States and seems only a short-term solution. 

Several  Member  States  have  studied  the  effects  of  increasing  the  spacing  between  ADDs 
mounted  on  static  nets,  concluding  that  effectively  doubling  the  spacing  does  not  appear  to 
lower their effectiveness. By doubling the spacing, costs to fishermen can be reduced. Article 
3 of the Regulation allows Member States to temporarily authorise the use of devices different 
to  the  specifications  laid  out  in  the  technical  annex  of  the  Regulation  and  this  does  include 
increasing the spacing of devices. At least two Member States have availed of this derogation. 

There is still ambivalence towards ADDs from NGOs due to perceived habitat exclusion and 
environmental  noise  effects  but  there  is  no  scientific  evidence  of  these  effects.  Habituation 
has also been cited as a reason that ADDs do not work by NGOs although again there is little 
scientific  evidence  that  this  is  in  fact  the  case.  ICES  has  concluded  that  such  effects  are 
unproven and it seems reasonable to assume that as ADDs are effective at reducing incidental 
catches of harbour porpoises, this outweighs any potential collateral effects.  

An additional issue of importance in relation to ADDs is the development of systems to detect 
if they are functioning correctly. Control and enforcement agencies in a number of Member 
States have indicated that the provisions of the Regulation are practically unenforceable given 
the difficulties in testing whether devices are operational or whether fishermen have actually 
deployed  them  on  gear.  The  German  and  Danish  authorities  have  developed  a  monitoring 
device which permits inspection of ADDs at sea. Further assessment of whether this device 
could be adopted should be undertaken by the control authorities of Member States.  

2.2. 

Obligation to design and implement observer schemes 

This obligation has been fulfilled by most Member States through a Combination of dedicated 
monitoring  programmes,  pilot  projects,  observations  carried  under  the  Data  Collection 
Framework  (DCF)  and  from  various  other  scientific  and  technical  trials.  As  per  the 
requirements  of  Article  5  of  the  Regulation  it  is  apparent  that  suitably  qualified  observers 
have been used in all cases.  

Denmark,  France,  Latvia,  Poland,  Spain,  Sweden  and  UK  all  reported  on  observed  fishing 
effort  above  the  levels  required  under  the  Regulation.  Denmark,  Finland,  France,  Ireland, 
Netherlands, Slovenia and UK also achieved the required level of coverage in both ≤15m and 
≥15m vessel groups. Estonia, Portugal and Germany have achieved only low coverage of their 
fisheries for a variety of reasons relating to cost and availability of observers.  

A  series  of  constraints  limiting  observations  and  their  utility  are  reported  by  a  number  of 
Member States and also by ICES. These difficulties concern (a) the deployment of observers, 
(b) achieving fishing effort coverage as required by the Regulation, and (c) administrative and 
economic constraints.  

(a) 

Some  Member  States  report  difficulties  accessing  vessels  due  to  a  lack  of 
notification to observers  of vessel  movements from producer organisations or 
individual fishermen; misunderstanding of the role of observers leading to lack 
of  cooperation  from  fishermen;  lack  of  space  preventing  observers  going  to 
sea,  particularly  on  small  vessels;  or,  lack  of  manpower  (single  observers) 
making sampling difficult when observers are required to combine sampling of 
discards with monitoring cetacean bycatch. 

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(b) 

It is clear from even a cursory review of the reports under the Regulation that 
very  few  Member  Sates  have  managed  to  achieve  estimates  of  incidental 
catches with a coefficient of variation (cv)4 anywhere near to 0.3 as required in 
the  Regulation.  This  is  primarily  due  to  the  low  level  of  bycatch  events 
observed making validation of results obtained statistically difficult. Achieving 
a  cv  of  0.3  requires  a  high  sampling  coverage  which  is  expensive  and 
according  to  ICES  is  not  realistic  in  a  situation  where  incidental  catches  are 
sporadic (i.e. bycatch events are rare meaning a large proportion of hauls need 
to be observed relative to the total number of hauls carried out in the fishery to 
have  any  reasonable  chance  of  observing  such  events).  Member  States  who 
opted to observe the required fisheries at a level of 5% of fishing effort using 
pilot  monitoring  schemes,  as  allowed  for  under  the  Regulation,  also  reported 
difficulties in complying fully with this provision. In some cases Member Sates 
had  to  monitor  a  large  number  of  vessels  to  meet  the  5%  target  or  observe 
multiple fisheries in which their vessels were involved. This generally resulted 
in  some  fisheries  being  observed  at  or  above  the  5%  level  while  others 
observed at levels well below 5% or not at all.  

(c) 

Some  Member  States pointed out  that  the level of observations carried out to 
date  can  no  longer  be  supported  financially  in  the  future,  particularly 
considering  the  current  economic  conditions.  Many  Member  States  have 
concluded that it is not cost effective to have dedicated observer programmes 
solely for this Regulation and have therefore used other observer programmes.  

2.3. 

INCIDENTAL CATCHES  

Based on the reports submitted incidental catches are estimated as being low in many of the 
fisheries  observed,  although  in  most  cases  it  is  difficult  to  extrapolate  observed  catches  to 
estimates  of  total  catches  at  fleet  level.  Therefore  accurate  estimates  of  incidental  catches 
levels  are  not  available.  Both  ICES  and  STECF,  however,  do  highlight  that  significant 
incidental  catches  have  been  consistently  reported  in  several  fisheries.  France,  Netherlands 
and  Spain  reported  incidental  catches  of  cetaceans  in  static  net  fisheries  operating  in  ICES 
subareas IV, VII and VIII. The incidental catches were composed mainly of harbour porpoise, 
,common dolphin and striped dolphin.  

Observations  made  for  pelagic  trawls  operated  by  France  and  Spain  reported  incidental 
catches  of  common  dolphin  in  ICES  subareas  VII  and  VIII.  For  the  same  areas,  France 
reported  the  incidental  catch  of  four  long-finned  pilot  whales.  Observations  made  in  the 
French  fisheries  in  the  Mediterranean  Sea  reported  the  incidental  catch  of  three  striped 
dolphins and one bottlenose dolphin.  

The  remaining  Member  States  reported  no  bycatch  in  any  of  the  observed  fishing  fleets 
requiring  monitoring  under  the  Regulation.  This  was  commonly  explained  due  to  minimal 
interaction  between  cetaceans  and  the  fisheries  involved,  low  observed  coverage  of  the 
fisheries  relative  to  actual  fishing  effort,  or  a  lack  of  coverage  of  fisheries  where  incidental 
catch  tends  to  be  significant  i.e.  the  wrong  fisheries  are  being  monitored.  In  this  later  case, 
this  is  due  to  fisheries  with  a  known  bycatch  not  being  required  to  be  monitored  under  the 

4 

The coefficient of variation (cv) is defined as the ratio of the standard deviation to the mean. 

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Regulation  as  in  these  fisheries  the  use  of  ADDs,  designed  to  mitigate  against  bycatch,  is 
mandatory.  

Several  Member  States  did  go  beyond  the  reporting  requirements  under  the  Regulation  and 
presented results of observations of incidental catches registered in fisheries not required to be 
monitored under the Regulation. These results showed occurrences of bycatch of cetaceans in 
static  net  fisheries  in  the  North  Sea  and  Celtic  Sea  (harbour  porpoise,  common  and  striped 
dolphin) as well surface longline operations in the Mediterranean (long-finned pilot whale).  

Member  States  also  reported  occurrences  of  stranded  marine  mammals,  whose  death  was 
reported as being associated to fishing gears. ICES, point out that care must be taken not to 
over-interpret data from stranded animals, and that protocols for establishing the real cause of 
death  must  be  put  in  place.  Stranded  animals  diagnosed  as  having  died  in  fishing  nets  may 
alert managers to the presence of a potential issue, but should not be used to try to extrapolate 
the scale of such incidental catches.  

3. 

ICES & STECF ADVICE 

The information on cetacean absolute abundance in EU waters, including the Mediterranean 
Sea, is extremely heterogeneous and unsatisfactory from a management perspective. In 2010 
ICES5 carried out an assessment of the population status of the cetacean species concerned by 
the Regulation based on best available information. Table 1 below summarises the findings of 
this assessment. 

Table 1 Population Status of main cetacean species concerned by Regulation 812/2004  

Species 

Area 

Population Status 

Harbour Porpoise 

Baltic Sea 

Very low – critically-endangered 

Kattegat, Belt Seas 

Unknown – cause for concern 

Atlantic (North) 

Stable or Increasing – evidence of migrations from other areas 

Atlantic (South) – 
Iberia 

Low abundance - major cause for concern 

North Sea 

Stable - evidence of southwards migration 

Common Dolphin 

Mediterranean 

Unknown - sharp decline reported over the last 30-40 years 

Atlantic 

North Sea 

Relatively stable 

Stable - small population 

Striped Dolphin 

Mediterranean 

Unknown – vulnerable 

Other Areas 

Unknown - thought to be relatively stable 

5 

ICES, 2010. EU request on cetacean bycatch regulation 812/2004. Item 4, Special request Advice May 
2010. 

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Bottlenose 
Dolphin 

Mediterranean 

Unknown – several sub-populations in coastal areas classed as 
endangered  

Other Areas 

Unknown - thought to be relatively stable 

From this table it can be seen that one population of harbour porpoise in the Baltic is critically 
endanagered, while a further four are at a level that is described by ICES as of being cause for 
concern, either because there are indications of a decline in the population, or because there is 
a lack of information. The harbour porpoise population in the Black Sea, which is not covered 
by the Regulation, is also considered to be under threat. The other populations are considered 
to  be  relatively  stable  but  that  is  not  to  say  that  incidental  catches  of  these  species  are  not 
impacting on the populations and the nature of trends that would have occurred in the absence 
of the regulation is unknown.  

Following  this  assessment,  ICES6  attempted  to  carry  out  an  analysis  of  the  total  incidental 
catches of cetaceans by management region and whether at there current levels they impact on 
populations.  Due,  however,  to  the  incomplete  and  inconsistent  nature  of  the  data  available 
ICES found it only possible to assess bycatch levels in a few fisheries. Existing information 
on cetacean distribution and abundance available cannot be used to evaluate the effects of the 
Regulation.  Nonetheless  ICES  concluded  that  in  the  following  fisheries  incidental  catches 
were of concern so monitoring and mitigation measures should be continued or in the case of 
the Black Sea included under the Regulation: 

–  harbour porpoises in static nets in the Baltic, Kattegat, North Sea and Skaggerrak, 

Atlantic and Black Sea; 

–  common and striped dolphins in static nets in the Atlantic and Black Sea; 

–  common dolphins in pelagic trawls for bass and tuna in the Atlantic; and 

–  bottlenose dolphins in the Mediterranean. 

In  its  assessment  of  reporting  under  the  Regulation,  ICES  advises  adopting  a  more  flexible 
approach to monitoring focusing on areas where incidental catches of cetaceans are known to 
be high, instead of monitoring fisheries with very low observed incidental catches and/or low 
levels of fishing effort.  

Both  ICES  and  STECF  have  identified  several  gaps  in  the  Regulation  that  should  be 
addressed.  Currently  the  Regulation  does  not  include  a  requirement  for  Member  States  to 
report  for  the  Black  Sea,  where  there  are  clearly  bycatch  issues.  The  activities  of  vessels  < 
15m that are known to be responsible for incidental catches are not adequately covered. Under 
Article 4 of the Regulation Member States are requested to collect scientific data on vessels < 
15m through scientific studies and pilot projects. While some Member States have carried out 
such studies and projects, monitoring remains poor. In this regard Member States are obliged 
under  the  Habitats  Directive7  to  monitor  incidental  mortality  of  protected  species,  including 
cetaceans, so all fisheries concerned should be included in the scope of the Regulation. 

6 

7 

ICES,  2010.  EU  request  on  cetacean  bycatch  Regulation  812/2004.  Item  3,  Special  request  Advice 
October 2010. 
Council Directive 92/43/EEC on the Conservation of natural habitats and of wild fauna and flora. 

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Under Article 12.4 of the Habitats Directive, Member States are required to establish a system 
to  monitor  the  incidental  capture  and  killing  of  strictly  protected  animal  species,  such  as 
cetaceans,  listed  under  Annex  IV  of  the  Directive.  Relevant  information  forms  part  of  the 
reporting requirements underr Article 17 of the Habitats Directive and is currently contained 
in an EU database8. ICES assessed the data contained in this database and looked for linkages 
between  data  collected  under  the  Habitats  Directive  and  under  the  Regulation.  ICES 
concluded  that  there  was  a  large  degree  of  duplication  between  the  two  and  very  little 
evidence  of  coordination  among  Member  States  activities  between  addressing  obligations 
under  the  Habitats  Directive  (area  based  management  and  species  protection  including 
bycatch monitoring) and actions undertaken in fulfilment of the Regulation. Furthermore the 
Habitats  Directive  is  focused  on  area  based  management  through  the  creation  of  protected 
areas, yet in most cases this is unlikely to be an effective means of addressing conservation 
issues  for  cetaceans,  most  of  which  range  over  very  wide  areas  and  are  caught  in  many 
different  fisheries.  ICES  therefore  advised  that  it  may  make  sense  to  review  the  national 
arrangements  to  monitor  incidental  catches  under  the  Habitats  Directive  and  their 
coordination with the Regulation.  

ICES  and  STECF  have  pointed  out  the  need  to  extend  monitoring  under  the  Regulation  to 
include bycatch of pinnipeds, seabirds and sea turtles. ICES have highlighted the significant 
incidental  catches  of  loggerhead  turtles  reported  in  a  wide  range  of  fisheries  in  the 
Mediterranean  and  seabirds  in  longline  fisheries.  Again  Member  States  have  obligations 
under the Habitats Directive to monitor incidental catches of these species. 

ICES  have  recommended  that  clear  definitions  of  the  gear  types  to  which  the  Regulation 
applies should be developed and included in the Regulation as it is currently unclear whether 
certain types of fishing gear known to interact with cetaceans are covered by the scope of the 
Regulation (e.g. trammel nets).  

4. 

RESEARCH CONDUCTED  

Over the period 2007-2010, a number of Member States carried out studies with the objective 
of  developing  new  mitigation  measures  or  improving  the  current  ADDs,  improving 
monitoring  programmes  including  the  use  of  novel  monitoring  equipment  (CCTV)  and 
improving  knowledge  on  the  distribution  of  cetaceans  and  interactions  with  fishing 
operations. These studies were either developed at national level or in collaboration with other 
Member States. The EU funded a major research project called NECESSITY that specifically 
looked at mitigating incidental catches in pelagic trawl fisheries. 

In addition to these studies, a great deal of research work has also been undertaken globally, 
recognising  the  importance  of  the  issue  of  incidental  catches  of  cetaceans.  However,  it  is 
apparent  that  there  are  currently  no  alternative  technical  mitigation  measures  to  ADDs  that 
have  been  proven  to  be  effective  at  reducing  the  incidental  catches  of  cetaceans  in  fishing 
gears. Alternative mitigation devices such as excluder grids and net barriers tested primarily 
in pelagic trawls have resulted in high fish losses and are not acceptable to fishermen. Other 
measures such as time and area closures have been shown to reduce the incidental catches but 
only  when  catch  events  are  predictable  and  relatively  restricted  in  time  and  space.  Such 
circumstances  in  European  fisheries  are  rare.  Results  from  trials  with  acoustically  reflective 

8 

http://eionet.europa.eu/article17 

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gillnets  in  Denmark,  Canada  and  South  America  are  more  encouraging  but  require  further 
testing before being considered a viable alternative to ADDs.  

5. 

(1) 

(2) 

(3) 

(4) 

(5) 

CONCLUSIONS 

There has been insufficient sampling in the right fisheries or areas to enabling sound 
management decisions to be made with respect to cetacean bycatch. Of the Member 
States that actually did report to the Commission most reported low or no bycatch in 
EU waters but scientific evidence from at-sea observer schemes or from post-mortem 
analysis  of  stranded  animals  continues  to  indicate  significant  interactions  between 
fisheries  and  cetaceans.  Information  on  cetacean  populations  is  fragmented  and 
population  status  remains  unclear  so  the  actual  impact  of  fishing  on  populations  is 
poorly  understood.  Absolute  estimates  that  might  be  useful  to  inform  management 
actions exist only for a few species in the North Sea, the Baltic Sea and parts of the 
NE Atlantic.  

Currently there appears to be an over emphasis on mitigation measures (i.e. ADDs) 
where  such  measures  are  only  proven  to  work  in  reducing  bycatch  of  harbour 
porpoise in static net fisheries and not for other cetacean species (e.g. common and 
striped dolphin) or with other fishing methods (e.g. pelagic trawls). This has resulted 
in  Article  2  of  the  Regulation  being  ineffective.  There  is  a  general  reluctance  by 
fishermen  to  use  the  devices  currently  available  due  to  practical  and  economic 
reasons that are well documented.  

Many  Member  States  have  made  a  considerable  effort  to  meet  the  reporting 
requirements  of  the  Regulation.  The  improvements  to  the  reporting  format  advised 
by ICES and STECF and accepted by the Member States will further improve this. 
However, the quality and content of the reports from some Member States submitted 
remains inconsistent, making analysis difficult. Reporting by Member States should 
be at a fleet segmentation level that follows the classification set out in the DCF and 
also with a monthly rather than a quarterly resolution. 

Monitoring targets specified in the regulation appear over ambitious and these targets 
could  be  rethought.  Adherence  to  the  monitoring  scheme  mandated  under  the 
Regulation  in  fisheries  where  bycatch  rates  are  known  to  be  low  is  not  the  most 
effective  use  of  resources,  especially  when  bycatch  is  known  to  be  occurring  more 
frequently  in  fisheries  or  areas  where  there  is  currently  no  requirement  for 
monitoring  under  the  Regulation.  According  to  ICES,  a  more  general  approach 
whereby  Member  States  would  be  required  to  demonstrate  their  fisheries  were  not 
exceeding some agreed level of cetacean bycatch would be more appropriate without 
overburdening  Member  States  with  excessive  monitoring  requirements.  Greater 
flexibility and co-ordination is required in allocating monitoring effort.  

Cetacean  distribution  and  interactions  with  fisheries  are  not  constant  through  time. 
The development of dedicated research on mitigation measures and improvement of 
monitoring  interactions  between  cetaceans  and  fisheries  in  parallel  with  the  full 
implementation of the Regulation will contribute to a better understanding of those 
shifts  and  support  the  enhancement  of  sound  management  tools.  Data  collection 
under  the  Habitats  Directive  and  also  the  linkage  with  the  Regulation  needs  to  be 
clarified so the utility of the data collected is maximised and there is not duplication.  

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(6) 

Member  States  have  obligations  under  the  Habitats  Directive  to  monitor  the 
incidental  capture  and  killing  of  all  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 the Regulation, Member States have the responsibility to take appropriate 
measures to safeguard cetacean populations. In particular incidental cetacean bycatch 
in  the  Black  Sea  and  the  incidental  catches  of  pinnipeds,  seabirds  and  turtles  in 
fishing gears in all areas are highlighted as specific cases which are currently outside 
the scope of the Regulation but require monitoring. 

6. 

WAY FORWARD 

Although monitoring targets, data formats and other issues are subjects of ongoing debate, the 
Regulation  has,  according  to  ICES,  "succeeded  in  providing  a  much  more  comprehensive 
picture of cetacean bycatch in European fisheries”. Some Member States have become more 
knowledgeable  about  the  impacts  that  their  fisheries  have  on  cetaceans,  allowing  them  to 
streamline the needs for research and protection of cetaceans and improve the implementation 
of the Regulation.  

The  Regulation  has  been  in  place  for  6  years, and  despite  these  improvements  it  is  still  not 
fully meeting its objective of preventing the accidental capture of cetaceans in fishing gears. 
Bycatch is still evident in a number of fisheries in the North Atlantic, North Sea and the Baltic 
and according to ICES several sub-populations of harbour porpoise and common dolphin in 
these  areas  are  considered  as  endangered.  For  the  Mediterranean  and  the  Black  Sea  it  is 
apparent  that  estimates  of  cetacean  abundance  are  inadequate  making  any  assessment  of 
population or bycatch impossible for these regions but there is enough evidence to conclude 
that bycatch remains high in these sea basins.  

There is therefore a need to ensure that monitoring and mitigation are targeted in the areas and 
for the species most under threat. Improved mitigation measures could be incorporated under 
the  new  technical  measures  framework  that  will  be  developed  as  part  of  the  reform  of  the 
Common Fisheries Policy. This would set out the scope, objectives and targets to be met in 
relation to cetacean bycatch, with the possibility for Member States to take specific mitigation 
measures for specific areas and fisheries. The monitoring requirements could be incorporated 
into  the  DCF,  in  line  with  a  move  to  a  wider  ecosystem  approach  to  fisheries  monitoring 
which  would  include  bycatch  of  non-target  species  such  as  cetaceans,  seabirds  and  benthic 
organisms. Once this is achieved, Regulation (EC) 812/2004 could be repealed. 

EN 

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   EN