Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on certain measures in relation to countries allowing non-sustainable fishing for the purpose of the conservation of fish stocks
Date: 2011-12-14
Institutions: European Commission
Subjects: conservation of fish stocks, economic sanctions, fishing rights, import restriction, sea fish, third country, trade restriction

EUROPEAN COMMISSION 

Brussels, 14.12.2011 
COM(2011) 888 final 

2011/0434 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain measures in relation to countries allowing non-sustainable fishing for the 
purpose of the conservation of fish stocks 

{SEC(2011) 1575 final} 
{SEC(2011) 1576 final} 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The UN Convention on the Law of the Sea1 as well as the UN Fish Stocks Agreement2 require 
coastal States and States whose fleets fish for such stocks on adjacent high seas to cooperate 
in managing responsibly straddling and highly migratory fish stocks and stocks occurring in 
adjacent economic exclusive zones in order to ensure their long-term sustainability, either by 
direct consultation amongst each other or via the appropriate Regional Fisheries Management 
Organizations (RFMOs). 

Agreement on the management of straddling and highly migratory stocks is often difficult to 
reach and requires a genuine willingness of all States concerned to cooperate. The adoption of 
unilateral measures by certain States lacking good will to work towards agreed measures may 
lead  to  considerable  depletion  of  the  fish  stock  in  question  even  if  other  States  engage  in 
moderating their fishing effort.  

The  EU  being  a  lucrative  market  of  destination  for  fisheries  products,  it  has  a  particular 
responsibility  in  ensuring  that  the  above-mentioned  obligation  of  cooperation  is  respected. 
Therefore, it is necessary to provide the EU with the means to take effective measures against 
States  not  cooperating  in  good  faith  in  the  adoption  of  agreed  management  measures  or 
responsible  for  measures  and  practices  that  lead  to  over-exploitation  of  stocks,  in  order  to 
create a disincentive for the continuation of this unsustainable fishing. The present proposal 
aims at setting out a swift and effective mechanism to use trade and other type of measures in 
situations like the ones described above. These measures would aim at promoting cooperation 
among  States  concerned  for  the  adoption  of  appropriate  and,  to  the  extent  possible,  agreed 
conservation  measures  for  the  stocks  in  question  so  as  to  ensure  the  optimum  utilization  of 
such stocks. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

The annual consultations with non-EU coastal states on the management of stocks of common 
interest  gives  an  occasion  to  consult  with  stakeholders  on  how  to  react  in  cases  where 
cooperation  by  a  given  third  country  is  not  forthcoming.  Generally  speaking,  stakeholders 
request from the Commission the adoption of trade restrictions and other types of measures as 
a means to put pressure on those countries so that they would agree to enter into a meaningful 
negotiation  and  find  a  fair  solution  guaranteeing  the  sustainability  of  the  stocks  of  common 
interest. 

The  preparation  of  an  impact  assessment  for  this  proposal  was  preceded  by  a  targeted 
consultation on the use of trade and other types of measures as a means to induce a reduction 
in  the  intensity  of  fishing  by  third  countries  allowing  non-sustainable  fishing  .  Most 

1 
2 

United Nations Convention on the Law of the Sea of 10 December 1982 
Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of 
the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks 
and Highly Migratory Fish Stocks of 4 August 1995 

EN 

2 

   EN 

 
                                                 
stakeholders,  with  the  sole  exception  perhaps  of  the  processing  industry,  were  plainly  in 
favour of the adoption of trade-related and other types of measures. 

An  impact  assessment  was  conducted  for  this  proposal  and  its  executive  summary  is 
accompanying this proposal. Essentially, the impact assessment analysed the environmental, 
economic  and  social  impacts  of  measures  ranging  from  a  "zero  option"  to  a  total  ban  on 
importations  of  the  fish  and  fishery  products  in  question,  and  including  both  measures  that 
might extend beyond the trade context and non-legislative approaches. The conclusion of the 
impact  assessment  was  that  it  would  be  pertinent  to  provide  the  EU  with  an  instrument 
allowing  the  swift  adoption  of  measures,  mostly  trade-related.  The  measures  would  be 
introduced against countries which allow fishing that is conducted in a non-sustainable way 
that threatens the conservation of fish stocks. Indications of the possible form and content of 
the  instrument  were  also  suggested  in  the  impact  assessment.  During  preparation  of  the 
measure, it has become clear that the legal basis should be Article 43(2) and 207TFEU since 
the ultimate objective of the regulation is to promote conservation of fish stocks and the range 
of measures considered is not limited to trade-related ones. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Article 1 defines the main purpose of the Regulation: to set out a procedure so that equitable 
cost-effective measures can be taken in order to promote fisheries sustainability. 

Articles 2 to 5 describe which countries are to be targeted by the measures (countries allowing 
non-sustainable  fishing),  the  different  types  of  measures  that  may  be  adopted  and  the 
conditions determining where and when they may be adopted. Article 4 stipulates in particular 
that  the  measures  are  to  be  adopted  as  Commission  implementing  acts  (in  general  the 
examination  procedure  would  be  applicable).  Where  a  requirement  for  measures  to  be 
consistent  with  the  EU  international  commitments  is  mentioned,  compatibility  with  the 
obligations  of  the  EU  under  the  WTO  Agreement  is  meant  in  particular  as  far  as  trade 
restrictions are concerned. 

Article 6 defines certain due process steps than shall be undertaken prior to the adoption of 
the  measures  vis-à-vis  the  countries  allowing  non-sustainable  fishing  .  These  demarches 
should allow the countries concerned to be heard and provide them an opportunity to rectify 
their  actions.  Article  7  determines  the  period  of  application  of  the  measures,  subject  to  the 
adoption of corrective measures by the countries concerned. 

Article  8  defines  the  Committee  that  will  assist  the  Commission  in  implementing  the 
Regulation. 

The entry into force of the Regulation is set out in Article 9 as 20 days after publication. 

4. 

BUDGETARY IMPLICATION  

There is no budgetary implication 

EN 

3 

   EN 

 
2011/0434 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on certain measures in relation to countries allowing non-sustainable fishing for the 
purpose of the conservation of fish stocks 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 43(2) and Article 207, 

Having regard to the proposal from the European Commission, 

Having regard to the opinion of the European Economic and Social Committee3 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

As provided in the United Nations Convention on the Law of the Sea of 10 December 
1982  (hereinafter  referred  to  as  "UNCLOS")  and  in  the  Agreement  for  the 
Implementation of the Provisions of the United Nations Convention on the Law of the 
Sea of 10 December 1982 relating to the Conservation and Management of Straddling 
Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (hereinafter referred 
to as "UN Fish Stocks Agreement"), the management of certain straddling and highly 
migratory fish stocks requires the cooperation of all the countries whose fleets exploit 
that stock. This cooperation may be established in the framework of regional fisheries 
management  organizations  (RFMOs)  or,  where  RFMOs  have  no  competence  for  the 
stock  in  question,  by  means  of  ad-hoc  arrangements  among  the  countries  having  an 
interest in the fishery. 

(2)  Where  third  countries  having  an  interest  in  a  fishery  involving  stocks  of  common 
interest to that country and the Union conduct, without due regard to existing fishing 
patterns and/or the rights, duties and interests of other States and those of the Union, 
fisheries  activities  that  jeopardize  the  sustainability  of  the  stock,  failing  to  cooperate 
with  the  Union  in  its  management,  specific  measures  should  be  adopted  in  order  to 
promote the contribution of those countries to the conservation of the stock. 

(3) 

Fish  stocks  should  be  considered  in  a  sustainable  state  when  they  are  continuously 
maintained  at  or  above  the  levels  than  can  produce  maximum  sustainable  yield  as 
referred to in Articles 61(3) and 119(1) of UNCLOS and Article 5(b) of the UN Fish 
Stocks Agreement. 

3 

OJ C , , p. . 

EN 

4 

   EN 

 
                                                 
(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

(10) 

It  is  necessary  to  define  the  conditions  upon  which  a  country  can  be  considered  as 
allowing  non-sustainable  fishing  and  subject  to  measures  under  this  Regulation, 
including a process granting the countries concerned the right to be heard and allowing 
them an opportunity to adopt corrective action.  

In  addition,  it  is  necessary  to  define  the  type  of  measures  that  may  be  taken  with 
regard  to  countries  allowing  non-sustainable  fishing  and  to  establish  general 
conditions for the  adoption  of such measures so they are based on objective criteria, 
equitable,  cost-effective  and  compatible  with  international  law,  in  particular  the 
Agreement establishing the World Trade Organization. 

Such  measures  should  aim  at  removing  incentives  for  the  fleets  of  the  country 
allowing non-sustainable fishing to fish on the stock of common interest. This can be 
achieved  by,  for  example,  restricting  imports  of  fish  products  caught  by  vessels 
conducting  fisheries  on  a  stock  of  common  interest  under  the  responsibility  of  a 
country allowing  non-sustainable fishing, restricting the provision of port  services to 
those vessels, or avoiding that Union fishing vessels or Union fishing equipment may 
be  used  for  fishing  the  stock  of  common  interest  under  the  responsibility  of  the 
country allowing non-sustainable fishing. 

In  order  to  ensure  effective  and  coherent  Union  action  for  the  conservation  of  fish 
stocks, it is important that the measures set out in Regulation (EC) No 1005/2008 of 
29 September 2008 establishing a Community system to prevent, deter and eliminate 
illegal, unreported and unregulated fishing, 4 are taken into consideration. 

It is necessary that the adoption of such measures be preceded by an evaluation of their 
expected environmental, trade, economic and social effects. 

The measures adopted pursuant to this Regulation should cease to apply whenever the 
country  allowing  non-sustainable  fishing  has  adopted  the  necessary  measures  to 
contribute to the conservation of the stock of common interest. 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  this  Regulation, 
implementing  powers  should  be  conferred  upon  the  Commission.  Those  powers 
should be exercised by implementing acts providing for the examination procedure in 
accordance  with  Article  2(2)  of  Regulation  (EU)  No  182/2011  of  the  European 
Parliament and of the Council of 16 February 2011 laying down the rules and general 
principles  concerning  mechanisms  for  control  of  by  Member  States  of  the 
Commission's  exercise  of  implementing  powers5.  However,  for  reasons  of  urgency, 
the  decisions  whether  the  measures  would  cease  to  apply  should  be  adopted  as 
immediately  applicable  implementing  acts  in  accordance  with  Article  8  of  the  said 
regulation 

(11)  The  Commission  should  adopt  immediately  applicable  implementing  acts  where,  in 
duly justified cases relating to the end of application of measures taken pursuant to this 
Regulation, imperative grounds of urgency so require, 

4 
5 

OJ L 286, 29.10.2008, p.1 
OJ L 55, 28.2.2011, p. 13. 

EN 

5 

   EN 

 
                                                 
HAVE ADOPTED THIS REGULATION: 

Article 1  
Subject matter and scope 

1. 

2. 

This  Regulation  lays  down  the  framework  for  the  adoption  of  certain  measures 
regarding  fisheries-related  activities  and  policies  by  third  countries  with  the  aim  of 
ensuring  long-term  sustainability  of  fish  stocks  of  common  interest  between  the 
European Union and those third countries. 

The  measures  adopted  pursuant  to  this  Regulation  may  apply  in  all  cases  where 
cooperation  with  the  Union  is  required  in  the  joint  management  of  the  stocks  of 
common  interest,  including  where  that  cooperation  takes  place  in  the  context  of  a 
regional fisheries management organization or a similar body. 

Article 2 
Definitions 

For the purposes of this Regulation the following definitions shall apply,  

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

"stock  of  common  interest"  means  a  fish  stock  whose  geographical  distribution 
makes it available to the fleets of both Member States and third countries and whose 
management requires the cooperation between these third countries and the Union; 

"associated species" means any fish species that occur in a mixed fishery with a stock 
of common interest; 

"mixed fishery" means a fishery where more than one species are present in the area 
being fished and are vulnerable to being caught in the fishing gear.  

"regional  fisheries  management  organisation"  means  a  sub-regional,  regional  or  a 
similar  organisation  with  competence,  as  recognised  under  international  law,  to 
establish conservation and management measures for living marine resources placed 
under  its  responsibility  by  virtue  of  the  convention  or  agreement  by  which  it  was 
established; 

"importation" means the introduction of fish or fishery products into the territory of 
the Union, including for transhipment purposes at ports in its territory; 

"transhipment" means the unloading of all or any fish or fishery products on board a 
fishing vessel to another fishing vessel; 

"maximum  sustainable  yield"  means  the  maximum  catch  that  may  be  taken  from  a 
fish stock indefinitely 

EN 

6 

   EN 

 
Article 3 
Countries allowing non-sustainable fishing 

1. 

A  third  country  may  be  identified  as  a  country  allowing  non-sustainable  fishing 
where  

(a) 

it fails to cooperate with the Union in the management of a stock of common 
interest  in  full  accordance  with  the  provisions  of  the  United  Nations 
Convention on the Law of the Sea or of the United Nations Agreement for the 
Implementation  of  the  Provisions  of  the  United  Nations  Convention  on  the 
Law  of  the  Sea  of  10  December  1982  relating  to  the  Conservation  and 
Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 
August 1995, and  

(b) 

that third country 

(a)  has failed to adopt any fishery management measures, or  

(b)  has adopted such measures without due regard to the rights, interests and 
duties  of  others  including  the  European  Union,  and  those  fishery 
management  measures  lead  to  fishing  activities  which  would  lead  the 
stock  below  the  levels  that  can  produce  maximum  sustainable  yield, 
when considered in conjunction with measures taken by the Union either 
autonomously or in cooperation with other countries. 

2. 

For  the  purposes  of  paragraph  1(b)(ii),  the  stock  levels  that  can  produce  maximum 
sustainable yield shall be determined on the basis of best available scientific advice.  

Article 4 
Measures which may be adopted in respect to countries allowing non-sustainable fishing 

1. 

(a) 

(b) 

(c) 

(d) 

The Commission may adopt, by means of implementing acts, the following measures 
in respect to countries allowing non-sustainable fishing: 

identify the countries allowing non-sustainable fishing; 

identify,  where  necessary,  the  specific  vessels  or  fleets  to  which  certain  measures 
apply; 

impose  quantitative  restrictions  on  importations  into  the  Union  of  fish,  and  fishery 
products  made  of  or  containing  such  fish,  stemming  from  the  stock  of  common 
interest  and  that  had  been  caught  under  the  control  of  the  country  allowing  non-
sustainable fishing; 

impose  quantitative  restrictions  of  importations  into  the  Union  of  fish  of  any 
associated  species,  and  fishery  products  made  of  or  containing  such  fish,  when 
caught while conducting fisheries on the stock of common interest under the control 
of the country allowing non-sustainable fishing; in such a case, the Commission shall 
define  appropriate  means  to  determine  which  catches  fall  within  the  scope  of  the 
measure; 

EN 

7 

   EN 

 
(e) 

(f) 

(g) 

(h) 

(i) 

(j) 

(k) 

2. 

impose restrictions of the use of Union ports by vessels flying the flag of the country 
allowing  non-sustainable  fishing  that  fish  the  stock  of  common  interest  and  by 
vessels  transporting  fish  and  fishery  products  stemming  from  the  stock  of  common 
interest that had been caught either by vessels flying the flag of the country allowing 
non-sustainable fishing or by vessels authorised by it while flying another flag; such 
restrictions shall not apply in cases of force majeure or distress within the meaning 
of  Article  18  of  the  UNCLOS  (force  majeure  or  distress)  for  services  strictly 
necessary to remedy those situations; 

prohibit the purchase by Union economic operators of a fishing vessel flying the flag 
of countries allowing non-sustainable fishing ; 

prohibit  the  reflagging  of  fishing  vessels  flying  the  flag  of  a  Member  State  to 
countries allowing non-sustainable fishing; 

prohibit  Member  States  to  authorise  the  conclusion  of  chartering  agreements  with 
economic operators from countries allowing non-sustainable fishing; 

prohibit  the  exportation  to  countries  allowing  non-sustainable  fishing  of  fishing 
vessels  flying  the  flag  of  a  Member  State  or  of  fishing  equipment  and  supplies 
needed to fish on the stock of common interest ; 

prohibit the conclusion of private trade arrangements between nationals of a Member 
State  and  countries  allowing  non-sustainable  fishing  in  order  for  a  fishing  vessel 
flying the flag of that Member State to use the fishing possibilities of such countries; 

prohibit joint fishing operations involving fishing vessels flying the flag of a Member 
State  and  fishing  vessels  flying  the  flag  of  a  country  allowing  non-sustainable 
fishing; 

Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination 
procedure referred to in Article 8(2).  

Article 5 
General requirements concerning the measures adopted pursuant to this Regulation 

1. 

The measures adopted in accordance with this Regulation shall be: 

(a) 

related to the conservation of the stock of common interest; 

(b)  made effective in conjunction with restrictions on fishing by Union vessels or 
on production or consumption within the Union applicable to fish, and fishery 
products made of or containing such fish, of the species for which the measures 
have been adopted pursuant to this Regulation. These restrictions, in the case of 
associated  species,  may  apply  only  when  these  are  caught  while  conducting 
fisheries on the stock of common interest. 

(c) 

compatible with the obligations imposed by international agreements to which 
the Union is a party and any other relevant norms of international law. 

EN 

8 

   EN 

 
2. 

3. 

4. 

5. 

1. 

2. 

3. 

The  measures  adopted  in  accordance  with  this  Regulation  shall  take  into  account 
measures already taken pursuant to Regulation (EC) No 1005/2008. 

The  measures  adopted  in  accordance  with  this  Regulation  shall  not  be  applied  in  a 
manner  which  would  constitute  a  means  of  arbitrary  or  unjustifiable  discrimination 
between  countries  where  the  same  conditions  prevail,  or  a  disguised  restriction  on 
international trade. 

In  adopting  measures  in  accordance  to  this  Regulation,  the  Commission  shall 
evaluate the environmental, trade, economic and social effects of those measures in 
the  short  and  long  terms  and  the  administrative  burden  associated  to  their 
implementation. 

The  measures  adopted  in  accordance  with  this  Regulation  shall  foresee  an 
appropriate system for their enforcement by Competent Authorities. 

Article 6 
Procedures prior to the adoption of measures in respect to countries allowing non-
sustainable fishing  

Where  it  considers  necessary  to  adopt  measures  pursuant  to  Article  4,  the 
Commission  shall  notify  the  country  concerned  of  the  intention  to  identify  itas  a 
country allowing non-sustainable fishing . 

That  notification  shall  include  information  on  the  reasons  for  the  identification  of 
that country as a country allowing non-sustainable fishing and describe the possible 
measures that could be taken in relation to it in accordance with this Regulation.  

Prior to adopting measures pursuant to Article 4, the Commission shall provide the 
third country concerned with a reasonable opportunity to respond to the notification 
in writing and to remedy the situation. 

Article 7 
Period of application of the measures in respect to countries allowing non-sustainably fishing 

1. 

(a) 

(b) 

2. 

The measures adopted in accordance with this Regulation shall cease to apply upon 
adoption  by  the  country  allowing  non-sustainable  fishing  of  appropriate  corrective 
measures for the management of the stock of common interest that 

have  been  agreed  in  the  context  of  consultations  with  the  Union  and,  where 
applicable, other countries concerned, or 

Do not undermine the effect of measures taken by the EU either autonomously or in 
cooperation with other countries on the conservation of the fish stocks concerned. 

The  Commission  shall,  by  means  of  implementing  acts,  determine  whether  the 
conditions  laid  down  in  paragraph  1  have  been  complied  with  and  shall,  where 
necessary,  decide  that  the  measures  adopted  pursuant  to  Article  4  cease  to  apply. 
Those  implementing  acts  shall  be  adopted  in  accordance  with  the  examination 
procedure referred to in Article 8(2). 

EN 

9 

   EN 

 
On duly justified imperative grounds of urgency relating to unforeseen economic or 
social disruption, the Commission shall adopt immediately applicable implementing 
acts to decide that the measures adopted pursuant to Article 4 cease to apply. Those 
implementing  acts  shall  be  adopted  in  accordance  with  the  examination  procedure 
referred to in Article 8(3).  

Article 8 
Committee procedure 

1. 

2. 

The  Commission  shall  be  assisted  by  a  committee.  That  committee  shall  be  a 
committee within the meaning of Regulation (EU) No 182/2011. 

Where  reference  is  made  to  this  paragraph,  Article  5  of  Regulation  (EU)  No 
182/2011 shall apply.  

Where  the  opinion  of  the  committee  is  to  be  obtained  by  written  procedure,  that  procedure 
shall be terminated without result when, within the time-limit for delivery of the opinion, the 
chair of the committee so decides or a simple majority of committee members so requests. 

3. 

Where  reference  is  made  to  this  paragraph,  Article  8  of  Regulation  (EU)  No 
182/2011, in conjunction with Article 5 thereof, shall apply.  

Article 9 
Entry into force 

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

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

10 

   EN