COMMISSION STAFF WORKING PAPER Impact Assessment
Date: 2011-12-14
Institutions: European Commission
Subjects: aquaculture, conservation of fish stocks, conservation of resources, exhaustion of resources, fishery resources, third country

EUROPEAN COMMISSION 

Brussels, 14.12.2011 
SEC(2011) 1576 final 

COMMISSION STAFF WORKING PAPER 

Impact Assessment 

Accompanying the document 

Commission proposal for a Regulation of the European parliament and of the Council 

on certain measures directed to non-collaborating countries for the purpose of the 
conservation of fish stocks. 

{COM(2011) 888 final} 
{SEC(2011) 1575 final} 

 
 
 
 
  
 
 
Table of Contents 

1.  SECTION  1:  PROCEDURAL  ISSUES  AND  CONSULTATION  OF 

INTERESTED PARTIES............................................................................................ 3 

1.1. 

Identification: .................................................................................................... 3 

1.2.  Organisation and timing: ................................................................................... 3 

1.3.  Consultation of the IAB..................................................................................... 4 

1.4.  Consultation and expertise: ............................................................................... 4 

1.5.  Consultation of the Legal Service ..................................................................... 6 

2.  SECTION 2: PROBLEM DEFINITION .................................................................... 7 

2.1.  What is the issue or problem that may require action? ..................................... 7 

2.2.  What are the underlying drivers of the problem?.............................................. 9 

2.3.  What are the main problems which this initiative will address? ..................... 10 

2.4.  Who is affected, in what ways, and to what extent? ....................................... 10 

2.5.  How  would  the  problem  evolve,  all  things  being  equal?  N.B. 
Scenario(s) should take into account actions already taken or planned 
by the EU, Member States and other actors. ................................................... 11 

2.6.  Does the EU have the right to act and is EU added-value evident? ................ 12 

2.6.1.  Legal basis and subsidiarity............................................................... 12 

2.6.2.  Fundamental rights limits .................................................................. 12 

3.  SECTION 3: OBJECTIVES ..................................................................................... 13 

3.1.  What are the general policy objectives?.......................................................... 13 

3.2.  What are the more specific/operational objectives? ........................................ 13 

3.3.  Consistency of these objectives with other EU policies.................................. 14 

4.  SECTION 4: POLICY OPTIONS............................................................................. 16 

5.  SECTION 5: ANALYSIS OF IMPACTS................................................................. 16 

6.  SECTION 6: COMPARING THE OPTIONS .......................................................... 34 

7.  SECTION 7: MONITORING AND EVALUATION............................................... 37 

8.  ANNEXES ................................................................................................................ 38 

ANNEX I ANALYSIS OF REPLIES TO THE CONSULTATION ................................ 39 

1.  TECHNICAL DETAILS........................................................................................... 39 

2.  REPLIES RECEIVED .............................................................................................. 40 

3.  MAIN RESULTS OF THE CONSULTATION: ...................................................... 42 

4.  DESCRIPTION OF THE PROBLEM........................................................................ 45 

 
 
5.  POSSIBLE APPROACHES ....................................................................................... 50 

6.  POSSIBLE OPTIONS TO ADDRESS THE IDENTIFIED PROBLEM..................... 53 

7.  POSSIBLE EFFECTS OF IMPORT LIMITATIONS OR RESTRICTIONS............... 56 

ANNEX  II    THE  PROBLEMS  ASSOCIATED  WITH  THE  MANAGEMENT 
OF  BLUE  WHITING  AND  MACKEREL  IN  THE  NORTH-EAST 
ATLANTIC ............................................................................................................... 61 

1.  BLUE WHITING ...................................................................................................... 61 

1.1.  Biology 61 

1.2.  Fisheries........................................................................................................... 61 

2.  MACKEREL ............................................................................................................. 65 

3.  OTHER POTENTIAL CASES ................................................................................. 69 

ANNEX III.  CALCULATION OF ADMINISTRATIVE BURDEN.............................. 71 

ANNEX IV........................................................................................................................ 74 

LIST OF ACRONYMS..................................................................................................... 74 

Impact Assessment on EU trade-related measures 
 for the conservation of fish resources 

1.  SECTION 1: PROCEDURAL ISSUES AND CONSULTATION OF INTERESTED PARTIES 

1.1.  Identification:  

This  Impact  Assessment  results  from  the  need  to  respond,  by  using  trade-related 
measures,  to  situations  where  third  countries  fail  to  cooperate  in  the  management  of 
stocks of common interest and put in jeopardy their sustainability. This need has become 
particularly  evident  following  the  requests  made  by  the  EU  Institutions  and  by  all 
stakeholders  to  use  all  possible  means,  without  excluding  trade  sanctions,  to  solve  the 
ongoing dispute between Iceland and Faroe Islands and the EU on the joint management 
of the stock of North East Atlantic mackerel. For action on these countries to be effective 
and timely, it is required an ad hoc legal instrument, for which an impact assessment is 
required.  

It has been inserted in the Agenda Planning under the reference 2011/MARE/042  

1.2.  Organisation and timing:  

The decision to start this initiative was the result of a process that started at the Fisheries 
Council  of  25  October  2010,  when  Member  States  asked  the  Commission  to  take 
immediate action and use all possible means to convince Iceland and the Faroe Islands so 
they  should  abandon  their  perceived  extreme  and  unsustainable  positions  during  the 
consultations on mackerel management. Since then several meetings among the services 
concerned took place exploring different options and finally it was agreed to launch the 

3 

 
 
process to prepare a Commission proposal for a legal instrument allowing to prohibit, in 
an effective manner, the imports from countries whose non-cooperating behaviour (such 
Iceland and the Faroe Islands in the case of mackerel) put the management of stocks of 
common interest in jeopardy. The ban on imports would cover fish products related to the 
species  concerned.  This  decision  was  taken  without  prejudice  to  continuing  the 
exploration of different avenues. 

The first step taken by DG MARE to honour this decision was to draft a Roadmap and 
nominate  an  Impact  Assessment  Steering  Group  (IASG).  Members  of  this  group  were 
nominated  by  the  following  DGs:  MARE  (lead  DG),  TRADE,  ELARG,  ENV,  SJ,  SG 
and  the  EEAS.  The  first  meeting  of  IASG  took  place  14  March  2011  to  present  and 
preliminary  discuss  the  Roadmap  and  the  consultation  document.  Subsequent  meetings 
of IASG took place 20 May and 16 June 2011.  

The  elaboration  of  this  IA  report  was  done  transparently,  involving  preliminary  all  the 
pertinent  services  of  DG  MARE  and  maintaining  afterwards  regularly  updated  the 
Commission services represented in the IASG. 

1.3.  Consultation of the IAB 

This report was presented to the Impact Assessment Board (IAB) 21 June 2011. The IAB 
Secretariat issued a detailed IA Quality CheckList (IAQCL) by 15 July 2011 and the IAB 
delivered its opinion 22 July 2011. In essence, the IAB opinion contained suggestions to 
improve the report on the following fields: 

–  Firstly,  it  should  clarify  the  scope,  content  and  timing  of  follow  up  (implementing) 
measures,  and  should  provide  greater  clarity  on  the  practical  application  of  the 
envisaged trade measures, including details on the decision-making process inside the 
EU. 

–  Secondly, the report should strengthen the assessment of effectiveness of the analysed 
measures, particularly with respect to the risk of countries circumventing the potential 
EU import ban.  

–  Finally, the assessment of impacts in the EU such as on the fish-processing industry 

and consumers should be improved. 

The  present  report  addresses  the  suggestions  made  by  the  IAB  and  the  technical 
comments made in the IAQCL. 

1.4.  Consultation and expertise: 

The dispute about mackerel was discussed with Member States, the EP and stakeholders 
in several occasions, especially during 2010.  

The Committee on Fisheries of the European Parliament held on 30 September 2010 an 
exchange of views, with the participation of the Commission and of stakeholders, on the 
dispute  with  Iceland  over  significant  increases  in  their  catches  of  mackerel.  During  the 
debate the majority of participants expressed deep concern by the unilateral decision by 
Iceland to increase its mackerel catches called for a strong response from the EU and also 
advocated long-term and multilateral solutions.  

4 

 
Meetings with stakeholders, in particular economic  operators involved in the fishery of 
the  mackerel  stock  of  common  interest  with  Iceland,  have  been  held  throughout  the 
negotiations  with  Iceland,  Norway  and  the  Faroe  Islands  on  the  management  of  the 
aforementioned mackerel stock. Their general view was that the Commission should take 
action  against  Iceland  and  Faroe  Islands  in  all  possible  fields,  including  trade  and 
bilateral fishing agreements. 

In  the  context  of  this  Impact  Assessment,  it  was  decided  to  launch  a  new  consultation 
focused on the core problem: how to use trade restrictions to deal with situations like the 
one found for mackerel. 

Rather than an open public consultation, a targeted one was chosen. This was mainly due 
to  the  highly  specialised  fields  of  work  associated  to  the  dossier:  management  of 
straddling  and  highly  migratory  stocks  and  international  trade  rules,  on  which  the 
awareness of the wide public is supposed to be very low. The target groups were those 
represented  in  the  main  consultation  bodies  for  the  common  fisheries  policy:  the 
Advisory  Committee  for  Fisheries  and  Aquaculture  (ACFA),  the  seven  Regional 
Advisory Councils (RACs), and the authorities of Member States. 

The  Advisory  Committee  on  Fisheries  and  Aquaculture  (ACFA)  provides  a  forum  for 
ongoing dialogue with the industry. Its 21 members represent the main branches of the 
industry – production, processing and trade, in both fisheries and aquaculture as well as 
consumer  groups  and  organisations  dealing  with  environmental  protection  and 
development. 

ACFA operates through four working groups, which deal with: 

–  fisheries resources and management 
–  aquaculture 
–  markets and trade policy 
–  general questions, including economics and the condition of the sector. 

The Regional Advisory Councils (RACs) were created as part of the 2002 reform of the 
Common Fisheries Policy. They were established to give stakeholders (fishermen, vessel 
owners,  processors,  traders,  fish  farmers,  women’s  fisheries  groups,  environmental  and 
consumer  organisations  and  others)  a  vehicle  through  which  to  feed  recommendations 
into  CFP  policy  developments.  RACs  must  include  stakeholders  from  at  least  two 
Member  States.  They  each  have  a  general  assembly  and  an  executive  committee.  The 
fisheries sector has two thirds of the representatives on each body, and other interests one 
third. In addition to five geographical RACs, two others have been established for pelagic 
stocks and the high seas fleet. 

•  Baltic Sea RAC  
•  Long Distance RAC  
•  Mediterranean Sea RAC  
•  North Sea RAC  
•  North-western waters RAC  
•  Pelagic stocks RAC  
•  South-western waters RAC 

The consultation was opened 22 March 2011 and the last contribution was received and 
accepted on 30 May 2011, which makes the whole consultation period close to 10 weeks. 
A  consultation  document  (copied  in  the  appendix  to  this  annex))  was distributed to the 

5 

 
target  groups.  It  contained  an  explanation  of  the  basic  problem,  a  brief  analysis  of  the 
possible  approaches  and  several  closed  and  open  questions  allowing  a  complete  feed-
back.  The  Commission's  minimum  standards  for  consultation1  have  been  fully  met  and 
the  Guidelines  on  organisation  of  stakeholder  consultation  in  DG  MARE2  have  been 
followed.  The  Commission  had  the  opportunity  to  present  and  explain  the  consultation 
document to the two RACs more directly affected by the problem: the LDRAC and the 
PELRAC during the meetings of the Executive Committees of these RACs. 

Results of the consultation: 

A  summary  of  the  replies  received  and  the  main  conclusions  are  given  in  Annex  I.  It 
could  be  concluded  that,  generally  speaking,  there  is  ample  support  for  the  way  the 
Commission  has  initially  approached  the  problem  and  for  the  use  of  a  regulatory 
instrument  banning  trade  of  the  fish  products  affected  by  the  dispute  and  even  going 
beyond these measures in the framework of "countermeasures". Attention should be paid 
to  the  effects  on  the  processing  industry  in  particular  and  to  the  possibility  of  using  a 
combination of actions. 

1.5.  Consultation of the Legal Service 

DG  MARE  requested  the  advice  of  the  Legal  Service  on  a  number  of  questions 
pertaining  to  a  possible  legal  instrument  allowing  to  prohibit  imports  in  an  efficient 
manner in cases like the mackerel dispute. The questions covered 1) structure and legal 
basis  for  the  instrument,  2)  compatibily  with  GATT,  3)  compatibility  with  other 
agreements, 4) counter-measures and 5) other possible suggestions.  

The reply from the Legal Service can be summarised as follows: 

–  The legal basis should be article 207 TFEU (common commercial policy) 

–  The  structure  of  the  proposal  should  preferably  be  a  basic  act  adopted  under  co-
decision (with criteria and procedures) with the empowerment of the Commission to 
adopt specific trade measures (probably as implementing acts under article 291 TFEU. 

–  The  best  ground  to  possibly  justify  trade  restrictions  for  certain  fisheries  products 
from countries that refuse to cooperate and that threaten conservation, would be under 
Article XX(g) GATT, subject to the requirements of  the so-called  “chapeau” of  that 
provision (including a predictable process with the right to be heard, balance between 
limitations of trade and those applied to domestic fishermen, comparable treatment for 
situations being in comparable circumstances). This does not exclude that also Article 
XX(b) could be invoked to justify the measure in case of WTO litigation.  

–  Compatibility with EEA Agreement can be justified on the basis of its Article 13 if the 
principle  of  proportionality  is  respected.  Similar  conditions  apply  to  the  bilateral 
agreements in the case of Iceland and Faroe Islands. 

1   Towards  a  reinforced  culture  of  consultation  and  dialogue  –  General  principles  and  minimum 

standards for consultation of interested parties by the Commission. 

2   Note to Directors – Adonis No D 00166 of 6.01.2010 

6 

 
                                                 
–  The option of "countermeasures" would raise complex issues under international law, 

which still need further scrutiny.  

In sum, the result of the consultation of the Legal Service did not invalidate any of the 
options  contemplated  in  this  IA.  More  importantly,  its  response  provided  very  detailed 
guidance on what conditions should be met for the trade measures to be compatible with 
existing law and will be very useful at the time of drafting the intended legal instrument. 

2.  SECTION 2: PROBLEM DEFINITION 

2.1.  What is the issue or problem that may require action? 

The UN Convention on the Law of the Sea3 as well as the UN Fish Stocks Agreement4 
require coastal states and states fishing for such stocks on adjacent high seas to cooperate 
in  managing  responsibly  straddling  and  highly  migratory  fish  stocks  in  order  to  ensure 
their long-term sustainability, either by direct consultation amongst each other or via the 
appropriate Regional Fisheries Management Organizations (RFMOs). 

Disagreement on the management of straddling and highly migratory stocks may occur: 
arriving at useful arrangements requires the willingness of all parties concerned, the EU, 
the EU and coastal states and third countries, to cooperate. It is not infrequent that one or 
more  of  the  third  parties  lack  such  a  good  will  and  choose  to  fish  at  a  unilaterally 
established  high  intensity  for  a  number  of  years  before  consultations  are  concluded 
successfully.  Such  behaviour  may  lead  to  considerable  depletion  of  the  fish  stock  in 
question even if other parties engage in moderating their fishing rates. 

The  EU  is  now  suffering  the  consequences  of  too  long  and  unsuccessful  consultations 
and  negotiations,  both  between  the  North-East  Atlantic  coastal  states  and  in  the 
framework of the North-East Atlantic Fisheries Commission (NEAFC), before agreement 
was finally reached on the management of the North-East Atlantic stock of blue whiting. 
In  order  to  satisfy  the  unrealistic  demands  of  some  of  the  countries  fishing  for  blue 
whiting  and  lacking  instruments  to  convince  these  countries  to  lower  their  aspirations 
towards more reasonable positions, TACs were fixed at levels well above (doubling, in 
some  years)  the  levels  advised  by  fishery  scientists.  This  has  resulted  in  disastrous 
consequences for the status of this stock and therefore for certain EU fleets which target 
it.  Furthermore,  the  rebuilding  the  stock  to  sustainable  levels  in  the  medium  term  has 
become difficult. In fact, the protracted disagreement led to a very grave depletion of this 
stock which meant that the Total Allowable Catch (TAC) for this species had to be set 
for 2011 at 40,100t, which represents less than 7% of the level for 2010 (540,000t). Such 
outcomes  run  contrary  to  the  fundamental  objectives  of  the  EU's  Common  Fisheries 
Policy (CFP). 

At  present  the  EU  faces  a  similar  problem  with  the  stock  of  North-East  Atlantic 
mackerel. In this case the lack of agreement among coastal states, mainly due to Iceland 
and  Faroe  Islands  maintaining  inflexible  and  unrealistic  negotiating  positions,  is 
compounded  by  Faroe  Islands  and  Iceland's  setting  of  autonomous  catch  limits  at  very 
high  levels,  not  supported  by  any  objective  argument  either  on  the  basis  of  historical 

3   United Nations Convention on the Law of the Sea of 10 December 1982. 
4   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 (in force as from 11 December 2001) 

7 

 
                                                 
rights  or  stock  distribution.  These  levels  of  fishing,  according  to  scientific  advice,  may 
threaten the sustainability of the stock. 

A more detailed description of these two specific problems is given in Annex II, together 
with  a  list  of  other  stocks  for  which  problems  might  arise  in  the  future.  It  should  be 
emphasized that these occur in particular in situations where there is no regional fisheries 
management  organization  (RFMO)  in  charge  of  the  management  of  the  stocks  in 
question.  In  these  cases,  fisheries  management  rely  only  on  “understandings”  and 
“arrangements”  made  among  the  fishing  countries  that  have  little  legal  binding  value. 
This is the main reason why recourse to trade measures is often the only means to deal 
with alleged misconduct of one of the parties.  

The EU cannot remain idle in these situations and must be able to induce third countries 
to abandon harmful unilateral behaviour and show the necessary good will to achieve an 
arrangement  for  the  management  of  migrating  fish  stocks  (such  as  mackerel). 
Furthermore,  to  maintain  the  offer  of  a  lucrative  market  as  destination  of  the  mackerel 
caught by Iceland or the Faroe Islands remains not only a political contradiction but also 
a  stimulus  for  these  countries  to  continue  its  intensive  over-exploitation  of  the  stock. 
Following  this situation, there were clamorous  requests  by  all  stakeholders  that  the  EU 
should prohibit imports from these countries of, at least, the species in question. 

The use of import prohibition or restrictions in the broad field of conservation of natural 
resources  and, specifically, in fisheries management,  is  not  uncommon.  There  are  legal 
frameworks  for  this  such  as  the  CITES  Convention5,  transposed  into  EU  legislation  by 
Regulation (EC) No 338/976, certain recommendations made in the context of RFMOs7 
and the IUU Regulation8. Furthermore, a number of cases exist in the international scene 
where  coastal  States  have  adopted  import  restrictions  on  their  own  for  conservation 
purposes9 with various degrees of success.  

However,  none  of  the  existing  legal  instruments  available  to  the  EU  for  adopting  an 
import restriction or prohibition is appropriate in cases such as the ones described above 
for mackerel and blue whiting. For instance, and taking the case of mackerel fisheries, i) 
the mackerel stock is not in such a danger as to fall under the criteria to have it listed in 

5   Convention on International Trade in Endangered Species  of Wild Fauna and Flora 
6   Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna 

and flora by regulating trade therein. OJ L 61, 3.3.1997, p. 1–69 

7   See, for example, Recommendation No 2009-11 of ICCAT amending Recommendation No 8-12 on an 

ICCAT bluefin tuna catch documentation programme 

8   Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system  to prevent, 
deter  and  eliminate  illegal,  unreported  and  unregulated  fishing,  amending  Regulations  (EEC)  No 
2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and 
(EC) No 1447/1999. 

9   Such as the shrimp/ turtle case, where in 1989 the USA prohibited imports of shrimps from countries 
that did not have mechanisms to protect turtles from by-catch as efficient as those implemented in the 
USA. This prohibition had been challenged by a number of countries, which filed suit with the WTO, 
but at the end the US could maintain the prohibition and the process helped to establish case law for 
future  application  of  WTO  rules.  Other  cases  were  the  tuna/dolphin  issue,  whereby  the  US  banned 
imports of tuna caught with fishing techniques that led to a high associated mortality of dolphins, and 
the Chile-swordfish case, whereby Chile prohibited the landing and transit in Chilean ports of certain 
fish species, in particular swordfish caught by EU vessels. These masureswere also challenged by the 
exporting countries and led to a better understanding of how and when import restrictions can be used 
for conservation purposes. . 

8 

 
                                                 
the  CITES  appendices10;  ii)  mackerel  fisheries  by  Iceland  and  the  Faroe  islands  are 
mostly carried out in their economic exclusive zones (EEZs) and hence not subject to the 
competence of NEAFC, the RFMO in charge of management of mackerel in international 
waters  of  the  North-east  Atlantic,  and  iii),  mackerel  fisheries  by  Iceland  and  Faroe 
Islands are carried out under domestic law and as such, they are not illegal and therefore 
cannot be covered by the IUU legislation. 

The only means left for the EU to implement a ban or restriction of imports to Iceland 
and  the  Faroe  Islands  in  the  above-mentioned  case  would  either  non-regulatory  action 
(e.g. by the use of market forces) or though a newly created legal instrument adopted by 
the ordinary legislative procedure  (co-decision), which  may  take no less than one year. 
This is not fast enough. 

The problem can then be summarized as the lack for the EU of an appropriate mechanism 
to  adopt  effectively  and  timely  any  kind  of  trade  restriction  in  case  its  use  could  be 
justified to protect fish stocks from situations such as those described for mackerel and 
blue whiting. The clear response to this problem is to creating a framework allowing the 
EU to address this and future cases timely and efficiently. 

To sum up, the issue requiring action can be seen from two points of view: 

The general problem: When facing situations of unwillingness by any given third country 
to cooperate on the management of a straddling and highly migratory fish stock in which 
the EU shares an interest and, more importantly, where the attitude of such country poses 
a  risk  of  overfishing  that  would  require  subsequent  sacrifices  by  all  parties  in  order  to 
rebuild  the  stock  to  sustainable  levels,  there  is  a  need  to  use  all  possible  means  to 
convince the country in question to abandon that risky attitude. A clear option would be 
to implement trade restrictions, but the EU does not have a fast mechanism allowing their 
implementation in useful timeframes. 

Specific  problems:  The  above-mentioned  problem  is  not  a  purely  theoretical  one.  At 
present  the  EU  faces  the  immediate  threat  of  overexploitation  of  the  stock  of  mackerel 
due  to  what  is  perceived  as  an  irresponsible  attitude  of  Iceland  and  Faroe  Islands.  It  is 
also  possible  that  similar  situations  could  also  occur  in  the  short  tem  due  to  a  lack  of 
cooperation  by  other  parties  which  would  create  a  risk  of  over-exploitation  for  other 
shared stocks of the North Atlantic. In addition, similar situations cannot be excluded in 
other areas where the EU shares fisheries with other states. 

2.2.  What are the underlying drivers of the problem? 

The  main  driver  of  the  problem  is  the  high  demand  for  fish  which  creates  a  lucrative 
market.  In  the  case  of  blue  whiting  and  mackerel,  this  demand  is  both  for  human 
consumption, especially in developing countries, and for fish meal as a constituent of fish 
feed for aquaculture or fodder for other farm animals. It is this demand that is at the root 
of non sustainable fishing practices from certain third countries. Secondary drivers are: 

–  The  high  technological  development  of  the  industrialised  fleets  exploiting  most 
straddling and highly migratory fish, allowing very intensive exploitation at relatively 
low cost and increasing the risk of overexploitation, 

10   Furthermore,  listing  North-east  Atlantic  mackerel  in  the  CITES  appendices  would  also  affect  EU 

exports, which is not desirable for the intended scope and effects of the import restriction. 

9 

 
                                                 
–  The large lobbying power of fishing firms exploiting these stocks, who are capable of 
convincing governments to disregard long-term conservation goals in favour of short-
term advantages. 

–  The lack of effective instruments within the EU to deter third countries from deviating 
from the principles of good cooperation on the management of stocks of joint interest.  

2.3.  What are the main problems which this initiative will address? 

The  present  initiative  aims  at  providing  the  EU  with  a  mechanism  to  effectively 
implement trade-related measures for products from stocks that are in situations such as 
those described above for blue whiting and mackerel. These measures would mainly aim 
at  promoting  conservation  of  the  stocks  concerned  by  inducing  a  reduction  of  the 
intensity  of  fishing  of  the  third  parties  concerned,  this  without  prejudice  to  the  need  to 
continue  consultations  to  conclude  a  durable  arrangement  for  the  management  of  these 
stocks. 

This  mechanism  would  complement,  but  not  overlap  with,  the  measures  adopted  under 
the  IUU  Regulation.  The  action  that  is  being  explored  in  the  present  context  does  not 
target  illegal  fisheries  strictly  speaking,  but  fisheries  not  conducted  within  a  legal 
framework guaranteeing sustainability. 

2.4.  Who is affected, in what ways, and to what extent? 

The problem of overfishing as a result of certain irresponsible attitudes of third countries 
and the lack of appropriate instruments by the EU to avoid that situations is to be seen in 
the short, medium and long terms. The expected effects would be: 

-  For  the  fishing  industry:  in  the  short  term,  increased  competition  for  the  limited 
market and a possible decreased income as a result of price flexibility; in the medium 
to long term, decrease of yields due to scarcity of the resource and the need of drastic 
management measures. This will lead to important economic and job losses. 

-  For  the  processing  industry:  increased  availability  of  supply  of  raw  material  at  low 
prices  in  the  short  term,  coupled  with  perhaps  increased  temporary  jobs.  In  the 
medium to long term, just the opposite effect resulting on the need to find alternative 
sources of supply at presumably higher prices. 

-  The consumers will not likely benefit from the increased supply in the short term; the 
effects  in  prices  will  probably  be  neutralized  by  increased  earnings  and  jobs  in  the 
processing and distribution industries. They will, in turn, feel the effects of decreased 
supply in the long term by paying higher prices. 

-  The EU and national administrations would be seen, both in the short and long terms, 
as  incapable  of  dealing  with  the  problem.  Lack  of  confidence  in  public  institutions 
will be reflected in opinion polls and this may have important repercussions in other 
policy fields. 

The  setting  up  of  an  instrument  enabling  the  EU  to  implement  trade  restrictions  would 
per se, even with no implementation in a concrete case, have a deterrent effect on third 
countries  subject  to  the  temptation  of  behaving  as  in  the  case  of  mackerel  described 
above. 

10 

 
Where  the  legal  instrument  would  be  used  in  a  concrete  case,  then  the  list  of  actors 
affected would depend very much of the type of fish products that would be subject to 
import restriction. As an indication, the following actors will be most likely affected in 
the short term: 

–  The fleets of third country concerned exploiting the stock in question would have the 
EU  market  closed  to  their  products.  This  may  decrease  their  interest  to  fish  for  that 
stock. The extent to which they would be affected would depend on whether they land 
their catch directly in the EU, or in other countries (including their own country) and, 
in this case, on the part of the catch landed that was destined to the EU.  

–  The  EU  processing  firms  that  rely  on  raw  material  from  the  stocks  and  countries 
concerned will have to give up using that material and find out alternative sources or 
solutions. The extent to which this may constitute a real problem cannot be anticipated 
except on a case-by-case basis. 

–  Where the third country was exporting directly to EU markets for human consumption 
(mainly  supermarkets),  the  population  affected  would  be  both  these  markets  and, 
ultimately the consumers. Again, the extent to which distribution firms, supermarkets 
and  consumers  would  be  affected  depends  highly  on  the  type  of  product  and  the 
possibilities to find alternative products to satisfy the demand. 

–  Where  the  products  were  introduced  in  the  EU  as  fish  meal,  either  combined  or  not 
with  other  substances  to  constitute  animal  feed,  then  a  prohibition  or  restriction  of 
imports  could  affect  the  fish,  pig  or  poultry  farms  using  those  feeds  to  an 
unpredictable  extent,  which  would  depend  –again-  on  the  availability  of  alternative 
sources. 

–  In  cases  where  the  imports  would  concern  raw  or  elaborated  material  for  other 
industries (e.g. shark liver oil used in cosmetics), then these firms would need to adapt 
to the new situation looking for alternative sources. 

In  all  cases,  where  the  proposed  action  achieves  its  objective  to  contribute  to  a 
sustainable exploitation of the stocks concerned, then all the above-mentioned actors will 
be winners in the medium-to-long term. 

2.5.  How would the problem evolve, all things being equal? N.B. Scenario(s) 
should  take  into  account  actions  already  taken  or  planned  by  the  EU, 
Member States and other actors. 

Taking the case of mackerel as an example, without an instrument dissuading Iceland and 
Faroe Islands from continued fishing for mackerel at the present very high levels, there is 
no  way  to  avoid  that  the  stock  will  rapidly  be  depleted  to  levels  from  which  recovery 
may take very long and difficult periods of very low catch. The EU fishing industry, and 
more particularly the pelagic fleets, mostly constituted by large and sophisticated vessels 
that required large economic investment, will not be able to stand such a situation. 

Even in case where an arrangement could be found on mackerel, there are no guarantees 
that any of the countries neighbouring the EU would start taking autonomous decisions 
to satisfy short-term demands by parts of their fishing industry that might endanger the 
sustainability  of  other  fish  stocks  of  common  interest.  The  power  of  NEAFC  to  put 
together North-east Atlantic coastal states in managing fisheries is limited to the NEAFC 
Regulatory Area, beyond the respective EEZs of contracting parties, and there will be an 

11 

 
increasing need to adopt ad-hoc arrangements between coastal States on the management 
of straddling and highly migratory fish. 

It has been claimed that the case of mackerel was originated by climate change which in 
turn  induced  a  change  in  the  migration  patterns  of  this  fish,  making  it  increasingly 
abundant  in  Faroe  Islands  and  Iceland.  Horse  mackerel  being  a  species  ecologically 
similar to mackerel, it could be likely candidate for a shift in distribution and for future 
problems of joint management. Other widely-distributed stocks of the North-east Atlantic 
which are not entirely free from such as situation are Atlanto-Scandian herring, redfish, 
Greenland halibut and deep-water stocks. It is clear that there is no reason to believe that 
these problems will certainly occur, but it is also true that the lack of an instrument as the 
one  foreseen  following  this  impact  assessment  is  on  its  side  an  additional  incentive  for 
countries or fleets to fail to cooperate. 

The analysis of the options presented in Section 5 of this report includes the assessment 
of the effects of Option 1, "taking no action", which illustrates, in the case of mackerel, 
impacts 
how 
(environmental, economic and social) are negative and substantial. 

likely  evolve  without  specific  action.  All 

the  problem  would 

2.6.  Does the EU have the right to act and is EU added-value evident? 

2.6.1.  Legal basis and subsidiarity 

The ultimate purpose of the intended instrument is to avoid overexploitation of fish 
stocks and to promote a responsible management framework for certain straddling 
and  highly  migratory  stocks,  i.e.  the  conservation  of  certain  marine  biological 
resources,  but  the  intended  instrument  (restriction  or  prohibition  of  imports)  falls 
under  the  competence  of  the  common  commercial  policy.  The  Legal  Service  has 
however  concluded  that  it  is  Article  207  TFEU  (which  refers  to  the  common 
commercial policy) which should be used as legal basis (see Section 2.5) if a legal 
instrument  is  to  be  adopted  in  this  context.  That  instrument  would  fall  under  the 
exclusive  competence  of  the  EU  and  should  follow  the  ordinary  legislative 
procedure.  

Given  the  exclusive  EU  competence  for  the  intended  instrument,  the  principle  of 
subsidiarity does not apply in this case.  

2.6.2.  Fundamental rights limits 

None of the fundamental rights as defined in the EU Charter of Fundamental Rights 
is affected either by the problem or by the intended instrument. The right of the EU 
to  exert  its  exclusive  competence  is  not  therefore  limited  by  these  fundamental 
rights. 

12 

 
3.  SECTION 3: OBJECTIVES 

3.1.  What are the general policy objectives?  

The general policy objective of this initiative is to contribute to the conservation of fish 
resources,  which  is  the  main  objective  of  the  common  fisheries  policy,  as  defined  in 
Article 2 of the basic CFP Regulation11: 

The Common Fisheries Policy shall ensure exploitation of living aquatic resources 
that provides sustainable economic, environmental and social conditions 

Here  "sustainable  environmental  conditions"  means  specifically  the  conservation 
(sustainability)  of  fish  stocks.  This  objective  responds  to  the  general  objectives  of  the 
agriculture  and  fisheries  policy  as  set  out  in  Article  39(1a)  TFEU  and  in  particular  to 
their first objective: 

To  increase  agricultural  productivity  by  promoting  technical  progress  and  by 
ensuring  the  rational  development  of  agricultural  production  and  the  optimum 
utilisation of the factors of production, in particular labour. 

This  objective  should,  in  accordance  with  Article  38(1)  TFEU,  be  understood  having 
regard to the specific characteristic of the fisheries sector. In the fisheries sector, where 
the  natural  productivity  of  the  sea  cannot  be  artificially  increased,  the  terms  "increase 
agricultural  productivity"  should  be  understood  as  maintaining  fish  stocks  at  their 
maximum  sustainable  yield  (MSY).  This  objective  is  furthermore  consistent  with  the 
objectives and principles of various international fishery management instruments12. 

3.2.  What are the more specific/operational objectives? 

The  CFP  has  all  the  necessary  instruments  to  aim  at  the  above-mentioned  general 
objective as far as EU-exclusive fish stocks are concerned. For stocks which are shared 
with  third  countries,  the  CFP  also  has  the  appropriate  instruments  as  long  as  formal 
international cooperation frameworks have been consolidated, as it is the case of RFMOs 
and fisheries agreements with third countries. 

However, in the case of shared stocks in areas not covered by a RFMO, the EU depends 
too heavily on the good will of other coastal states and has no efficient means to force 

11   Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation 

of fisheries resources under the Common Fisheries Policy. OJ L 358, 3.12.2002, p. 59 

12   Among  these  international  agreements,  the  most  relevant  in  this  context  is  the  UN  Fish  Stocks 

Agreement (see footnote No 6). Article 5 makes particular reference to MSY:  
"In  order  to  conserve  and  manage  straddling  fish  stocks  and  highly  migratory  fish  stocks,  coastal 
States  and  States  fishing  on  the  high  seas  shall,  in  giving  effect  to  their  duty  to  cooperate  in 
accordance with the Convention: 
(a)   adopt measures to ensure long-term sustainability of straddling fish stocks and highly migratory 

fish stocks and promote the objective of their optimum utilization; 

(b)   ensure that such measures are based on the best scientific evidence available and are designed to 
maintain or restore stocks at levels capable of producing maximum sustainable yield, as qualified 
by relevant environmental and economic factors, including the special requirements of developing 
States, and taking into account fishing patterns, the interdependence of stocks and any generally 
recommended international minimum standards, whether subregional, regional or global"  

13 

 
                                                 
non-cooperative  coastal  states  towards  agreeable  management  solutions  (see  cases 
described under Section 2 above).  

The operational objective of the initiative covered by this IA is therefore to provide the 
EU  with  a  trade-based  instrument  to  contribute  to  the  general  objective  of  maximizing 
fish yields of stocks shared with third countries by deterring them to adopt measures that 
run against fish stock conservation principles and forcing them to cooperate with the EU 
on the management of the stocks concerned. 

Secondary  operational  objectives,  derived  from  the  above-mentioned  one,  would  be 
securing  the  competitiveness,  income  and  jobs  of  the  different  sectors  of  the  fishing 
industry in a long-term sustainable basis. 

3.3.  Consistency of these objectives with other EU policies 

The general objective 

The general objective of conservation of fish stocks and maximizing their yields is fully 
compatible with all other EU policies. Perhaps the EU policy more directly related to this 
objective is the environmental policy. In this context, it is worth noting that the initiative 
covered by this IA not only is compatible with the objectives of the environmental policy 
as  defined  in  Article  191(1)  TFEU,  but  contributes  very  substantially  to  two  of  them: 
prudent  and  rational  utilisation  of  natural  resources  and  promoting  measures  at 
international  level  to  deal  with  regional  environmental  problems.  Furthermore, 
compatibility  is  also  evident  with  specific  objectives  of  some  instruments  of  the 
environmental  policy,  such  as,  for  example,  the  Marine  Strategy  Framework  Directive 
(MSFD)13,  whose  objective  is  to  achieve  good  environmental  status  for  European  seas 
and  for  which  one  of  the  descriptors  of  this  status  is  maintaining  fish  stocks  at  levels 
producing maximum sustainable yield14. 

The  extent  to  which  conservation  of  fish  stocks  contributes  to  other  EU  policies  is 
developed  in  detail  in  a  Communication  from  the  Commission  to  the  Council  and  the 
European  Parliament  "Implementing  sustainability  in  EU  fisheries  through  maximum 
sustainable yield"15. 

Furthermore, the general objective of conservation of fish stocks is fully consistent with 
the  Biodiversity  Strategy16  and  other  wide-ranging  policies  such  as  the  Sustainable 
Development strategy17 and the 2020 Strategy18. It contributes in particular to the 2020's 
flagship initiative "resource Efficient Europe"  

13   Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a 
framework  for  community  action  in  the  field  of  marine  environmental  policy  (Marine  Strategy 
Framework Directive) OJ L 164, 25.6.2008, p. 19–40 

14   Commission  Decision  of  1  September  2010  on  criteria  and  methodological  standards  on  good 

environmental status of marine waters (2010/477/EU), OJ L 232, 2.9.2010, p. 14 

15  

 COM (2006) 360 final 

16   COM(2011)244 final. See in particular target n°4. 
17   As reviewed in 2009: Communication from the Commission to the European Parliament, the Council, 
the  European  Economic  and  Social  Committee  and  the  Committee  of  the  Regions  -  Mainstreaming 

14 

 
                                                 
The operational objective 

Any trade-related instrument  for  use within the CFP should be fully  consistent with all 
other EU policies. As a matter of principle, this consistency could be seen as problematic 
in  the  field  of  the  EU  commercial  policy,  which  is  designed  to  contribute  to  the 
progressive  abolition  of  restrictions  in  international  trade  (Article  206  TFEU)  and  in 
particular as regard the respect for international trade agreements. 

In this context it is to be noted that most international trade agreements by which the EU 
is  bound  have  incorporated  rules  (general  exceptions)  granting  the  possibility  to  adopt 
trade  restrictions  for  reasons  of  conservation  of  natural  resources.  It  is  important 
therefore  to  design  the  intended  instrument  carefully  to  guarantee  that  the  trade 
restrictions  foreseen  fall  unequivocally  within  the  general  exceptions  of  these 
agreements. 

It is particularly important to analyze the general exceptions granted within the GATT19, 
because these would be of universal application within the intended instrument. Article 
XX of this Agreement stipulates (only the text that is relevant has been copied below): 

"Subject to the requirement that such measures are not 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,  nothing  in  this  Agreement  shall  be  construed  to  prevent  the 
adoption or enforcement by any contracting party of measures: 
(...) 
(b) necessary to protect human, animal or plant life or health; 
(...) 
(g)  relating  to  the  conservation  of  exhaustible  natural  resources  if  such  measures 
are  made  effective  in  conjunction  with  restrictions  on  domestic  production  or 
consumption; (...)" 

The  trade  restrictions  foreseen  in  the  intended  instrument  can  never  be  taken  as  "a 
disguised restriction on international trade" because they will be explicit restrictions. But 
care should be taken that they must be: 

–  Non  discriminatory:  should  apply  to  all  countries  where  the  same  conditions  prevail 

and 

–  Necessary to protect animal life or health or/and 

–  Related  to  the  conservation  of  exhaustible  natural  resources.  In  this  case,  the  EU 

should have adopted restrictions on domestic production and consumption. 

It is to be noted that, although fish is strictly speaking a natural renewable resource, in 
the context of GATT it has been considered in previous cases an exhaustible resource. 

Conditions for the respect of other applicable agreements should be examined at the time 
of implementing the instrument for a given stock and country. As an example, where it 

sustainable  development  into  EU  policies  :  2009  Review  of  the  European  Union  Strategy  for 
Sustainable Development. COM/2009/0400 final. 

18   http://ec.europa.eu/europe2020/index_en.htm 
19   General Agreement on Tariffs and Trade.  

15 

 
                                                                                                                                                 
were  decided  to  apply  an  import  ban  of  mackerel  products  from  Iceland  and  the  Faroe 
Islands, this should be made under conditions compatible with the bilateral commercial 
agreements  existing  between  the  EU  and  each  of  these  countries  and,  for  Iceland,  with 
the EEA Agreement.  

4.  SECTION 4: POLICY OPTIONS 

The  consultation  document  mentioned  five  different  policy  options,  as  follows  (further 
details on each of them are given in section 5): 

1.  To take no action; 

2.  to take measures in the form of non-legislative instruments, such as mechanisms 
of the type "blame and shame", sustainability labels or diplomatic démarches in 
different forms; 

3.  to  provide  the  common  fisheries  policy  with  a  regulatory  instrument  allowing  a 
quick  response  to  the  problem  by  imposing  a  ban  on  trade  on  fish  products 
derived  from  the  relevant  fish  stock  and  that  have  an  origin  in  the  country 
concerned; 

4.  to  impose  limited  trade  restrictions  including  only  easily  identifiable  fish 

products; 

5.  to issue a regulatory instrument providing for "counter-measures" in response to 

an "internationally wrongful act" committed by another State. 

From the analysis of the opinions of the target groups consulted, and following internal 
reflection within DG MARE after having consulted the IASG, it has been decided not to 
discard  any  option  for  the  analysis.  Furthermore,  the  consultation  document  requested 
from  the  target  groups  consulted  to  give  an  opinion  on  possible  additional  options  to 
include  in  the  analysis.  Among  the  replies  received,  just  two  really  new  options  were 
mentioned:  the  use  of  the  ITLOS  mechanism  and  the  banning  of  all  fishmeal  imports 
irrespectively  of  its  species  composition.  Several  target  groups  mentioned  also  that  a 
combination of options is perhaps a good solution. While it would be possible to consider 
the combined approach, and this will be done in the analysis below, the two new options 
suggested (ITLOS and fishmeal) were not retained. In first place, the ITLOS mechanism 
is too lengthy and does not respond to the imperatives of short-term risk of overfishing; 
in second place, the ban on all fish meal products is a disproportionate approach that in 
addition  will  be  difficult  to  implement.  Further  comments  on  the  problems  associated 
with fishmeal are given in the analysis of option 3. 

5.  SECTION 5: ANALYSIS OF IMPACTS 

The  impact  of  each  of  the  options  mentioned  from  an  economic,  environmental  and 
social  perspective  would  depend  very  much  on  many  factors,  such  as  the  nature  of  the 
dispute  in  question,  the  countries  involved,  the  species  concerned,  the  volume  of  trade 
concerned  and  so  on.  For  that  reason,  a  theoretical  analysis  of  the  impact  can  only  be 
made  taking  a  known  case  as  a  basis.  Since  it  is  the  mackerel  dispute  the  one  that 
triggered the present exercise, it is natural that the analysis be done taking it as a basis. In 
any case, the analysis will also incorporate theoretical reflections on effects that do not 

16 

 
apply specifically to mackerel. It must be underlined that the effects commented in this 
IA are highly speculative and apply just in the case of mackerel as it is known at the date 
of drafting this IA. It is possible that for other stocks the effects could be either magnified 
or attenuated, depending on the population dynamics of each stock, the relative sharing 
among the parties, the flows of trade, the economic value, etc. 

Methods: 

There  is  no  standard  methodology  to  analyze  similar  situations.  What  follows  is  a 
methodology chosen ad hoc for this case, based on current practice in fisheries science 
and on reasonable assumptions concerning the behaviours of third countries’ authorities 
in response to one or another option. 

Biological assessment 

The  environmental  effects,  i.e.,  the  consequences  on  the  evolution  of  the  stock,  are 
calculated with a spreadsheet designed specially for this case. The data source are copied 
from the results of the assessment carried out by ICES20, namely from the 2010 report of 
the  Working  Group  on  Widely  Distributed  Stocks  (WGWIDE).  The  recruitment21  in 
2011 and successive years is taken as the one assumed by ICES, based on the geometric 
mean  of  recent  values,  since  ICES  did  not  find  any  means  to  predict  the  coming 
recruitments.  

The  forecasts  have  been  conducted  for  a  period  of  twelve  years,  in  order  to  obtain 
theoretical  long-term  values.  However,  it  should  be  noted  that  the  catch  predictions 
should be taken with great precaution when they extend for more than two or three years; 
going further ahead would yield results too heavily dependent on recruitment values that 
cannot be predicted with any accuracy. Furthermore, the assessment done by ICES is not 
free  from  error  –in  fact  ICES  warns  about  the  little  precision  of  the  results  of  the 
assessment, and on the other hand, the assumption of a constant value for recruitment at 
the  current  high  values  is  perhaps  overoptimistic.  In  any  case,  the  theoretical  values 
obtained for the long-term under an assumption of constant recruitment are still valid to 
compare the different management strategies. 

The economic effects are calculated on the basis of current price of about 1€/kg quoted  
in  the  market  for  human  consumption,  according  to  the  most  recent  report  from 
STECF22.    This  price  is  consistent  with  those  found  from  several  other  sources  (e.g. 
Eurostat). 

To better assess the consequences of each of the options, a baseline needed to be chosen. 
Since the status quo is not an option, it was preferred to build up a theoretical scenario on 
the basis of what could be taken as the desirable scenario. This was made assuming the 
following conditions on the management of the stock: 

–  The 2011 TACs would remain unchanged (it is already too late to change them) 

20   International Council for the exploration of the Sea. All ICES reports quoted in this IA can easily be 

retrieved from this website. 

21   The number of new individuals becoming available to the fishery each year as a result of reproduction. 
22   The 2010 Annual Economic Report on the European Fishing Fleet 

https://stecf.jrc.ec.europa.eu/reports/economic 

17 

 
                                                 
–  For  2012  and  successive  years,  an  arrangement  is  approved  by  all  Coastal  States  to 
follow the 2008 management plan and to allocate the resulting catch according to the 
following proportions: EU: 52.49 %; NO: 23.95 %; ICE+FI: 17.02% and NEAFC RA 
(Russian  Federation):  6.54%.  These  figures  were  chosen  as  representative  of  what  a 
hypothetical agreement could have been concluded for 2011 where the figures could 
have been: 

EU: 401 000t; NO: 183 000t, as agreed; 

ICE  +  FI:  130  000t,  a  round  figure  reflecting  shares  for  each  country  close  to  but 
below  10%.  The  relative  sharing  between  these  two  countries  is  controversial  and 
unneeded for this exercise. 

NEAFC  RA  (Russian  Federation):  50  000t,  a  round  figure  close  to  the  value 
approved for 2011. 

–  This would result in the following shares: EU: 52.49%; NO: 23.95%; ICE+FI: 17.01% 

and NEAFC (RF): 5.34% 

These  figures  are  merely  chosen  for  the  purpose  of  this  exercise,  without  prejudice  for 
the EU to consider this as an acceptable solution. 

The  benchmarks  used  to  assess  the  performance  of  one  or  another  option  are  the 
following: 

1.  A  spawning stock biomass23 (SSB)  of 1.7miot is taken as the lowest desirable 
level  for  the  spawning  stock  biomass.  According  to  ICES,  this  is  the  lowest 
observed value and below it the dynamics of the stock are unknown. It is taken as 
the  value  to  avoid  with  high  certainty.  In  terms  of  fisheries  management,  such 
level  is  commonly  referred  to  as  SSBlim  or,  simply,  Blim.  This  value  also 
corresponds  to  level  which,  according  to  the  NO-EU  agreement,  would  trigger 
drastic management measures. 

2.  A  SSB  of  2.2miot  has  been  agreed  between  Norway  and  the  EU  as  the  level 
below which the rate of fishing should be decreased in order to rebuild the stock. 
According  to  ICES,  this  is  the  size  of  the  stock  that  would  produce  maximum 
sustainable yield. 

3.  A fishing mortality24 of F=0.22 is taken as target value in the long term. This is 
based  on  the  long-term  management  plan  agreed  between  Norway  and  the  EU, 
which  advocates  a  target  F  between  the  values  of  0.20  and  0.22.  ICES  has 
assessed  the  value  of  F=0.22  as  compatible  with  the  precautionary  approach, 
since  it  ensures  a  very  small  probability  for  the  stock  to  fall  to  the  Blim  level. 
ICES has also estimated that a rate of fishing at the level of F=0.22 would lead 
the stock to the level producing maximum sustainable yield. 

The results of the desirable scenario can be seen in any of the Options below for which 
assessments and catch forecasts have been conducted. In few words, 

23   The weight (biomass) of the part of the stock constituted by sexually mature individuals. 
24   An expression of the rate at which fish are removed from the stock by fishing activity. 

18 

 
                                                 
–  For 2012, the EU catches would decrease from current levels, due to the rather 
lower  fishing  mortality  chosen.  But  soon  the  expected  catches  would  be 
stabilized at the long-term value of around 302 000t. 

–  The  SSB  would  soon  stabilise  at  about  2.450miot,  safely  above  the  level  of 

2.2miot.  

–  With  this  management  strategy,  the  risk  for  SSB  falling  below  the  limit  of 

1.7miot would be negligible (<5%, according to ICES).  

Estimation of the administrative burden 

The  administrative  burden  has  been  calculated  using  the  ad-hoc  tool  provided  by  the 
Secretariat  General  website  "Better  Regulation"25.  The  calculation  is  based  on  the 
determination  of  the  type  of  obligations  generated  by  a  given  measure  (such  as 
production of new data, reporting, inspection, checking, etc), the target groups that carry 
the  burden  of  this  work  (port  authorities,  import-export  firms,  etc)  and  the  number  of 
times  every  obligation  needs  to  be  executed.  The  tool  then  applies  standard  rates  and 
calculates the costs in euros. The details on the calculation can be seen summarized in the 
spreadsheets of Annex III. The net results are shown under each of the options below. 

Option 1: Take no action 

Description of the action 

This would be equivalent to continue as in recent months:  

1.  There would be no agreement for catch limitations of mackerel for 2011;  

2.  The  next  round  of  consultations  for  2012  will  take  place  in  the  autumn;  since 
there will be no pressure on Iceland and Faroe Islands to lower their aspirations 
other than what can be transmitted verbally during the consultations, it is likely 
that  both  countries  continue  their  excessive  demand  and  there  would  be  no 
agreement either for 2012.  

3.  The  behaviour  of  each  of  the  parties  in  fixing  their  management  goals  for  2012 
and successive years would mimic that observed for the 2011. Iceland and Faroe 
Islands will continue to fix, at least for 2012, an autonomous catch limit at levels 
similar  to  the  one  adopted  for  2011.  While  it  is  difficult  to  guess  the  precise 
figures, one can assume  that these  countries will modulate  their decision  by the 
ratio between the catch forecasted by ICES for 2012 and that forecasted for 2011 
if  the  2010  management  plan  were  followed26.  In  other  words,  if  the  catch 
forecasted for 2012 were 550 000t, this represents 85% of the catch forecasted for 
2011 (646 000t). Iceland, who set a TAC for 2011 of 154 825t, would then set a 
TAC of 154 825*0.85=131 601t. The other Coastal States would apply the same 
scheme. 

25   http://adminburden.sg.cec.eu.int/calculator.aspx  
26   This was the basis for Iceland setting the 2011 TAC: the TAC adopted for 2010, multiplied by the ratio 

of the catch forecasted by ICES for 2011 and 2010.  

19 

 
                                                 
4.  The  trade  into  the  EU  would  follow  the  trends  observed  in  since  2008,  i.e.,  the 

year when Iceland started the fishery in its EEZ. 

The environmental effects 

The  following  graphics  show  the  forecasted  evolution  of  SSB  and  F  (po  stands  for 
desirable scenario) 

)
t
0
0
0

'
(

B
S
S

3000

2500

2000

1500

1000

500

0

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

)
F
(
y
t
i
l

a
t
r
o
m
g
n
h
s
F

i

i

0,400

0,350

0,300

0,250

0,200

0,150

0,100

0,050

0,000

SSB(Opt 1)

SSB(po)

F(Opt 1)

F(po)

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

The  expected  effects  of  this  option  are  therefore  that  fishing  mortality  will  remain  at 
values slightly above F=0.3, more than 40% above the value decided in the management 
plan, and that the SSB will rapidly decrease to about 2miot, a value decidedly below the 
alert level of 2.2miot, this despite the fact of assuming a continuation of the high recent 
recruitment values. 

It should be noted that any strategy based on these levels of fishing mortality (F=0.3) was 
excluded by ICES in its evaluation of 2008 because it was non-precautionary, i.e. it led to 
a  high  probability  of  the  SSB  falling  in  the  mid  term  below  1.7miot,  the  lowest 
admissible value for this stock. The ICES estimate is that at these levels the probability 
for SSB to reach that critical value would be higher than 21% 

20 

 
 
 
 
 
 
The economic effects 

The following graphic shows the results of this simulation in terms of the expected 
evolution of the EU catch: 

h
c
t
a
c
U
E

450

400

350

300

250

200

150

100

50

0

EU(Opt 1)

EU catch (po)

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

•  Comparison with the desirable option would hence lead to the following conclusions 

for Option 1: 

1.  This option would appear to give increased yields for a two consecutive years, but 
these  would  decrease  afterwards  to  stabilize  at  values  of  260  000t,  which 
represents  a  long-term  loss  of  potential  yield  of  14%  annually,  compared  to  the 
desirable option value of 302 000t.  

2.  Losses  in  yield  are  traduced  immediately  in  economic  losses  for  the  catching 
sector.  In  absolute  figures  these  can  be  evaluated  as  40mio€per  year.  Losses  in 
yield also imply a lower supply to the processing industry, which would be forced 
to search for alternative sources, which always imply an additional cost. This last 
aspect  is  controversial  because  under  this  scenario  the  catches  by  Iceland  and 
Faroe  Islands  would  remain  high  and  therefore  can  increase  their  supply  to  the 
EU market if EU prices increase due to the increased demand. 

3.  Furthermore,  and  very  importantly,  most  EU  mackerel  fisheries  are  certified  by 
the  Marine  Stewardship  Council  (MSC)27  and  can  therefore  exhibit  the  MSC 
label,  which  gives  a  preferential  access  for  certain  markets.  Option  1,  clearly 
unsustainable by all standards, might lead to the loss of the MSC certificate and 
therefore to the loss of access to markets based on sustainability criteria. Neither 
Icelandic nor Faroese mackerel fisheries are MSC-certified. 

4.  The  long-term  economic  loss  would  be  greater  than  the  14%  loss  in  yield 
because, by fishing at a fishing mortality 40% above the value for the desirable 
option, the fishing effort and hence the fishing costs would be assumed to also be 

27   http://www.msc.org/ Up  to  eight EU  mackerel  fisheries  are  MSC-certified, for  a production of  more 

than 364 000t in 2009. 

21 

 
 
 
                                                 
40%  higher.  Consumers  would  perhaps  pay  their  part  to  alleviate  these  losses 
through increased prices. 

5.  According to ICES, for a value of fishing mortality F=0.3 like the one under this 
Option, the risk that SSB would fall below the value of 1.7miot is above 21%, far 
too high, compared to the need to avoid that value with a probability higher than 
95%.  Achieving  those  SSB  values  would  oblige  to  adopt  very  drastic  TAC 
reductions  when  not  a  total  ban  on  fishing,  which  would  imply  dramatic 
consequences for the fishing industry. 

6.  The mackerel fishery is now the most economically important in the EU. Losses 
for  the  industry  associated  to  mackerel  will  also  mean  an  important  economic 
underperformance of the EU fishing industry as a whole. 

The social effects: 

These are difficult to predict due in particular to lack of data on the precise structure of 
the  pelagic  fishing  industry,  which  is  in  addition  very  different  among  Member  States. 
However,  it  is  important  to  note  that  the  low  long-term  economic  performance  of  this 
option would always have a social repercussion. Furthermore, low yield or low economic 
revenues  obtained  at  higher  fishing  effort  (which  includes  workforce)  would  inevitably 
result in either lower wages or increases in efficiency leading to unemployment, or both. 

The social consequences of this option can also be assumed to be more severe in fleets 
operating very labour-intensive fishing techniques, such as hand-liners. These fleets are 
particularly  important  in  south-west  England  (small-scale  vessels  operating  in  the 
mackerel box28) and in the northern Iberian peninsula. 

The administrative costs: 

This option does not entail any additional administrative costs  

Option 2: the non-legislative instrument. 

Measures under this option could be: 

–  Guidance  to  markets  and  consumers  towards  products  caught  sustainably  and 
according  to  good  management  practice.  An  informed  consumer  could  restrict  its 
choices only to products that are caught within a framework of agreed and sustainable 
management  practice.  This  guidance  can  be  provided  by  either  the  fishing  industry, 
public authorities of NGOs, in the form of transparent information on what is going on 
about the management of straddling and highly migratory stocks. For it to be efficient, 
guidance should be accompanied by a detailed labelling system enabling consumers to 
determine the origin of the products. 

–  A particular case in the context of guidance can be the use of eco-labels. In the case of 
mackerel,  the  MSC  label  (see  under  the  economic  analysis  of  Option  1)  allows  the 
consumer to be sure that a given product satisfies the MSC standards (see comments 

28   The  mackerel  box  is  a  large  area  around  the  Cornwall  peninsula  where  juvenile  mackerel  usually 
concentrate and where pelagic trawling is forbidden. A specialised fleet of hand-liners operates here. 

22 

 
                                                 
on  MSC  under  Option  2  below)29.  For  eco-labels  to  be  effective,  they  should  also 
provide Chain of Custody standards for traceability. MSC possesses these standards. 

–  Diplomatic action can also be included in this context. For it to be effective, it should 
be widely know by the public and put in adequate contexts. In the case of mackerel, 
for  example,  any  diplomatic  communication  made  to  Iceland  referring  to  its  non-
sustainable  fishery,  will  be  embarrassing  for  a  country  so  proud  of  its  standards  in 
fisheries management. 

It  should  be  noted  that  this  option  received  a  very  weak  support  from  the  fisheries 
industry (mostly catching sector). Only one organization representing the fish processing 
industry showed certain sympathy for this approach. Member States were neither hostile 
to it nor manifestly in favour. 

Environmental effects: 

This  option  has  no  direct  environmental  effects.  The  expected  effect  of  this  type  of 
measures,  in  particular  eco-labels,  is  an  indirect  one,  i.e.  the  promotion  of  good 
environmental practices through the forces of the market, by guiding the demand towards 
products  having  certain  environmental  advantages.  However,  according  to  a  recent 
study30,  eco-labels  in  the  fisheries  domain  do  not  work  as  well  as  in  other  domains  in 
promoting more sustainable production practices:  

"(…)The  results  revealed  that  there  is  a  large  variation  in  the  purchase  of 
ecolabelled  products  across  the  18  countries  considered.  Sweden,  Denmark, 
Austria, and Luxembourg are the leading countries in the purchase of ecolabelled 
products, whereas consumers in Eastern and Southern European countries tend to 
buy the fewest ecolabelled products. 

Yet,  neither  the  involvement  of  the  state  nor  the  multitude  of  the  ecolabels  had  a 
strong effect on the purchases of ecolabelled products. Instead, market supply and 
demand  seem  to  be  the  most  important  drivers  of  the  consumption  of  ecolabelled 
products." 

It  should  be  noted  that  the  main  consumers  of  mackerel  are  southern  countries  (Spain, 
Portugal and Italy) and an eastern country (Poland). 

It  is  therefore  paradoxical  that  most  EU  fleets  fishing  for  mackerel  have  requested  and 
obtained  MSC  certification  for  their  products,  for  a  market  which  do  not  appear  as 
"demandeur" of eco-labelled products. This can be explained by the fact that, rather than 
consumers,  it  has  been  the  large  retailers  that,  driven  by  pressure  from  environmental 
NGOs,  have  committed  to  sell  only  certified  products.  The  paradox  becomes  more 
evident  if  one  examines  the  results  of  the  consultation  for  this  IA,  where  virtually  all 
fishing organizations representing the catching sector qualified Option 2 as either "a last 
resort" or "ineffective". 

29   The  MSC  standards  for  sustainable  fishing  are  based  on  the  FAO  criteria  for  eco-label  certification, 
and are related to both the environmental status of fish stocks, the management system attached to it 
and the environmental effects of fishing practices. 

30   Koos,  S.  (2011)  Varieties  of  Environmental  Labelling,  Market  Structures  and  Sustainable 
Consumption  across  Europe:  A  Comparative  Analysis  of  Organizational  and  Market  Supply 
Determinants of Environmental-Labelled Goods. Journal of Consumer Policy. 34:127-151. 

23 

 
                                                 
It  should  also  be  noted  that  there  is  a  possibility  that  acquiring  a  certification  enabling 
fishing products to display an eco-label cannot be possible in the situations covered by 
this IA. As a matter of fact, the standards for certification are generally based on the FAO 
guidelines for the eco-labelling of fish and fishery products31 and include criteria for the 
management system such as (for example in MSC Principle No 3): "The fishery is subject 
to  an  effective  management  system  that  respects  local,  national  and  international  laws 
and  standards  and  incorporates  institutional  and  operational  frameworks  that  require 
use of the resource to be responsible and sustainable". The current situation, where there 
is  no  effective  international  management  framework,  might  be  taken  as  incompatible 
with this criterion. 

As far as information to the public and diplomatic action are concerned, the experience 
through nearly one year of dispute with ample press coverage and giving rise to strong 
political  messages  in  exchanges  of  correspondence  between  the  EU  on  one  part  and 
Faroe  Islands  and  Iceland  on  the  other  part,  shows  that  this  action  had  only  very  little 
effect. It led to these countries to resume talk but at the end of the day their preparedness 
for a negotiated solution did not appear to have changed.  

In conclusion, it is possible to assume that the environmental effects of Option 2 would 
be, albeit perhaps positive, very minor. 

Economic effects: 

With such weak environmental effects, the expected net economic impact of the measure 
does not appear very encouraging. Furthermore, MSC certification is a rather expensive 
process  that  only  powerful  fishing  companies  can  afford  if  there  is  no  public  financial 
support.  In  fact,  the  specialised  press  often  reports  about  fishery  operators  becoming 
discouraged  to  engage  in  a  certification  process  due  to  the  relatively  high  associated 
costs.  As  said  above,  the  main  consumers  from  southern  and  eastern  countries  would 
likely pay more attention to prices than to eco-labelling or divulgation campaigns, so the 
effect on them will not be appreciable. 

Social effects: 

Social consequences in terms of employment, working conditions, rights of workers, etc, 
which are generally associated to economic effects, would be neutral or negligible under 
this option. However, improved guidance to consumers through information campaigns 
associated or not to eco-labels would indirectly have a rather positive effect in increasing 
the  awareness  of  the  public  about  the  fishing  sector  and  its  associated  management 
problems.  This  will  always  be  a  good  thing  because  public  support  is  essential  to 
guarantee implementation and enforcement of fishery management rules. 

Administrative costs: 

This option entails substantial administrative burden both for the public and the private 
sector, since the action it requires in terms of information is continued and not just one-
off. The eco-label certification process is on its side expensive and, although there may 
be grants available in its support, it weights considerably in the economy of the catching 
sector. 

31   http://www.fao.org/docrep/012/i1119t/i1119t.pdf  

24 

 
                                                 
Costs associated to eco-labels are, according to MSC: 

–  Costs of fishery certification: between 10 500€ and 84 000€ per fishery 

–  Costs  of  certification  for  the  supply  chain:  no  estimate  given  by  MSC,  but  one  can 
assume  about  10  man/days  of  an  auditor  specialist,  plus  a  few  travel  expenses. 
Roughly, about 10 000€  

These two costs are incurred only the first year. 

–  Charges  for  label  use:  a  fixed  annual  amount  depending  on  the  level  of  sales,  plus 
0.5% of the sales. If one assumes that half of the mackerel catch by the EU is MSC-
certified  and  one  fourth  of  the  retailers  are  willing  to  display  the  MSC  label,  the 
charges for the label can be estimated as above 37 500€. This cost can be taken as an 
annual administrative burden that will be maintained every year. To this, one must add 
the costs of advertising campaigns to inform consumers and guarantee the success of 
the ecolabels.  

It can be assumed that the total associated administrative costs of ecolabels can easily be 
well above 50 000€ per year, after an initial  investment of between roughly 20 000€ and 
95 000€. 

Option 3: Regulatory instrument allowing to prohibit trade on all fishery products 
from the stock in question 

Description of the option: 

This option consists on banning the import into the EU from the third country in question 
(in the present case study, Iceland and the Faroe Islands) of the fish concerned and any 
products  derived  from  it  (in  this  case,  any  mackerel  or  fish  products  derived  from 
mackerel). To do this efficiently, a regulation is to be issued enabling the Commission to 
adopt the import prohibition as soon as there is a case for doing so and to withdraw the 
prohibition  whenever  the  conditions  to  trigger  the  prohibition  are  not  met  anymore. 
According to the advice of the Legal Service, the Commission could exert its powers by 
an implementing act. The regulation would also establish the criteria and procedures on 
the basis of which the Commission would take its decision to either issue or withdraw the 
import prohibition. This would include the setting of adequate control Committees in the 
context  of  the  new  “comitology”  framework32  and  detailed  criteria  to  exert  the 
implementing  powers,  such  as  specific  impact  assessments  for  every  implementing 
decision.  These  impact  assessments  should  include  indicators  on  stock  conservation 
(biological reference levels) and on the potential effects on the EU processing industry, 
which may be highly dependent on the imported products. 

Mackerel can be imported under the main following forms: 

–  Fresh or chilled; 
–  Whole frozen, Headed and Gutted (H/G), Flaps and Fillets; 
–  Canned; 

32   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 by Member States of 
the Commission’s exercise of implementing powers 

25 

 
                                                 
–  Roe; 
–  Fish waste; 
–  A  number  of  highly  elaborated  products  such  as  fishmeal,  fish  oil,  fish  feed, 

encapsulated Omega-3 fish oil, Hydrolysates, fish protein. 

In order to foresee the potential effects of a ban on imports of mackerel from Iceland and 
the Faroe Islands, it is important to analyse the current flows of these products. 

Imports  of  mackerel  into  the  EU  from  Iceland  and  the  Faroe  Islands  have  become 
important only very recently, following the expansion of the mackerel fishery: 

2008 

2009 

2010 

Volume(t)  Value('000€)  Volume(t)  Value('000€)  Volume(t)  Value('000€) 

Mackerel (*) 
107 064 
From all countries 
253 
From Iceland 
From FI 
1 130 
(*)Fresh or chilled;Whole frozen, Headed and Gutted (H/G), Flaps and Fillets, Canned 

65 221 
165 
1 576 

97 270 
186 
1 863 

70 728 
331 
1 124 

56 789 
2 685 
11 760 

89 759 
2 790 
13 334 

The greatest proportion of these imports (>98%) is in the form of whole round mackerel 
frozen.  As  far  as  other  fish  products  that  potentially  contain  mackerel,  the  imports  are 
only significant for fish waste, fishmeal and fish oil, as follows: 

Fish waste (051191) 
From all countries 
From Iceland 
From FI 

2009 
Volume(t)  Value('000€) 

2010 
Volume(t)  Value('000€) 

173 272 
23 395 
20 514 

47 031 
3 653 
3 859 

185 273 
26 887 
22 727 

53 409 
4 696 
5 378 

Fish meal (230120) 
From all countries 
From Iceland 
From FI 

2009 
Volume(t)  Value('000€) 

2010 
Volume(t)  Value('000€) 

562 187 
22 135 
4 130 

413 949 
19 229 
3 331 

427 916 
18 098 
10 860 

472 624 
23 257 
13 243 

2009 
Volume(t)  Value('000€) 

2010 
Volume(t)  Value('000€) 

Fish oil(*) (1504) 
From all countries 
From Iceland 
From FI 
(*) May include oils from marine mammals; however, most of it (at least 80%) is of fish origin 

173 272 
23 395 
20 514 

185 273 
26 887 
22 727 

47 031 
3 653 
3 859 

53 409 
4 696 
5 378 

It is not possible to determine the proportion of mackerel as constituent of these products. 
However,  the  time  at  which  mackerel  is  caught  (the  feeding  season)  implies  that  its 
contents  in  fat  is  excessive  for  human  consumption  and  the  fish  is  better  fitted  for 
transformation  into  meal  and  oil.  We  can  therefore  work  on  the  assumption  that  a  fair 
proportion  of  these  exports  may  have  been  produced  by  considerable  quantities  of 
mackerel. It should also be noted that the conversion factor for fish meal and oil to live 
weight of pelagic fish is taken as 1:5. 

One may conclude that a resolute ban on imports may have a fair important effect on the 
external  trade  from  the  Faroe  Islands  and  Iceland.  If  applied  to  the  above-mentioned 
products, the immediate losses for both Iceland and Faroe would theoretically be above 
30  mio€  annually  before  they  find  alternative  markets.  Both  countries,  but  especially 
Iceland, have an economy highly dependent from the fishing sector and therefore it can 

26 

 
 
 
 
 
 
 
be  expected  that  the  ban  on  imports  will  produce  an  immediate  reaction  from  the 
authorities of both countries, lobbied by the export firms, to make all possible efforts to 
revert  to  the  availability  of  the  EU  market,  even  if  this  is  done  at  the  expenses  of 
abandoning the current high catching behaviour, which by the way they should recognize 
as non-sustainable. 

In  terms  of  effects  on  the  mackerel  stock,  it  is  plausible  to  assume  that  the  situation 
would  revert  to  the  situation  foreseen  in  the  desirable  scenario,  i.e.  an  immediate 
agreement  for  2012  and  successive  years.  However,  to  be  more  realistic,  one  may  also 
suppose that there would be a lag of two years before the effects are noticed, because the 
implementation  of  this  option  would  still  require  the  completion  of  the  decision-taking 
process  for  the  required  legislation.  The  simulation  for  this  exercise  would  be  done 
therefore  assuming  that  the  agreement  would  take  effect  only  for  2013  and  successive 
years.  

Environmental effects: 

The results in terms of SSB, yields and F will be, compared to the desirable scenario (the 
desired situation) described below. The results of Option 1 are also included because they 
allow a better inter-option comparison.  

3000

2500

2000

1500

1000

500

0

SSB (Opt 3)

SSB(do)

SSB(Opt 1)

2011

2012

2013

2014

2015

2016

2017

2018

2019

2020

2021

2022

2023

2024

The SSB would fall sharply the first two years, as in option 1, but soon will it recover, 
reaching the desired levels after six years more. The fishing mortality would revert to the 
target values as soon as the agreement is reached: 

27 

 
 
 
)
F
(
y
t
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l
a
t
r
o
m
g
n
h
s
i
F

i

0,400

0,350

0,300

0,250

0,200

0,150

0,100

0,050

0,000

F(Opt 3)

F(do)

F(Opt 1)

2011

2012

2013

2014

2015

2016

2017

2018

2019

2020

2021

2022

2023

2024

In all, this can be interpreted as a rapid return to "normality" for the fishing mortality and 
a progressive recovery of the SSB towards the desirable situation. The fisheries would, 
from the agreement, revert to a status of sustainability and there would be in principle no 
reason  for  any  of  them  to  lose  the  MSC  or  any  other  certification  based  on  the  FAO 
standards. The advantages of this option over Option 1 are evident. 

Economic effects: 

The  EU  catches  forecasted  under  this  model  would  be,  compared  to  the  desirable 
scenario and with Option 1: 

h
c
t
a
c
U
E

450

400

350

300

250

200

150

100

50

0

EU(Opt 3)

EU(do)

EU(Opt 1)

2011 2012

2013 2014 2015 2016 2017

2018 2019 2020 2021 2022 2023 2024

It can be seen that the EU catch would progressively recover to reach the "desired" levels 
6 years after the first agreement entered into force. It should be noted that the longer it 
takes  for  Option  3  to  be  implemented,  the  more  difficult  the  recovery  would  be,  as  a 
consequence of the "erosion" of the stock during the years of disagreement. 

In economic terms 

28 

 
 
 
 
 
 
 
Although  slightly  below  the  desirable  scenario,  this  option  yields  substantially 
improvement with respect to Option 1 in terms of catch. The net effects observed can be 
summarised as follows: 

(1) 

(2) 

(3) 

(4) 

Option  3  would  imply  making  some  sacrifices  in  the  short  term  in  terms  of 
reduced  catch  during  three  consecutive  years,  but  from  the  fourth  year  on  the 
yearly catches would be consistently higher than for Option 1 and from the eight 
year  the  long-term  gains  would  have  been  consolidated  at  about  300  000t,  16% 
above the long-term catch expected under Option 1.  

This increase in long term yield is traduced in economic benefits for the catching 
sector. In absolute figures these can be evaluated as 40mio€per year. Although the 
short  term  losses,  together  with  the  import  ban,  may  create  difficulties  to  the 
processing sector, the increased production in the EU could help in providing raw 
material for the fish processing industry.  

The fact of agreeing a joint management regime would be sufficient, even if the 
stock is not yet fully rebuilt to its maximum productivity level, to satisfy the eco-
labelling requirements of the MSC, and therefore the eco-label certification could 
be maintained.  

Following  the  same  reasoning  as  for  Option  1,  the  net  gains  in  yield  may 
underestimate the effects on economic productivity, because the increased yields 
would  be  taken  at  lower  fishing  rates,  which  entails  lower  production  costs  and 
hence an additional multiplier of the economic gain. 

(5) 

An important element of this option is that it provides with a rather high stability 
in catches, which is a good think to plan investments in the fishing industry. 

Social effects: 

The best that can be said of this option is that none of the undesired effects of Option 1 
are to be expected. On the contrary, this option would re-establish confidence in fisheries 
managers,  would  improve  the  economic  performance  of  the  pelagic  fishing  sector  and 
one could expect better yields by vessel and hence better revenues for crews. 

Administrative costs 

Option  3  would  be  onerous  in  terms  of  administrative  burden.  It  would  require  1)  new 
legislation (co-decision regulation, plus implementing acts); 2) increased surveillance at 
customs  and  3)  legislation  terminating  the  ban  whenever  it  has  produced  the  desired 
effects.  Traceability  requirements  will  also  increase  administrative  burden  in  the 
exporting countries (analysis of samples and production of certificates). 

The summary results are (rounded to the nearest 500€): 

–  Administrative burden for business: 19 000€ 

–  Administrative burden for public authorities: 13 500€ 

Main drawbacks 

The problem associated with fishmeal, fish oil, fish feed and other products for industrial 
uses is that there is no way to determine whether these were elaborated from mackerel. 

29 

 
The current rules in the EU lead to the obligation to ensure that fish feed for aquaculture 
is not made up with fish meal or oil made from the same species that is to be fed. That 
may allow importers of fish feed to determine whether a product within this category has 
been made up with salmon, trout, bass, sea bream and other farmed species or trimmings 
from those, but not from mackerel since there is no farming of this species. 

Banning  imports  of  fishmeal  and  elaborated  products  originated  from  or  containing 
mackerel  in  its  composition  necessitates  therefore  establishing  new  traceability 
requirements to determine the species composition of these products. These requirements 
should be incorporated in the legal instrument.   

Option  4:  Regulatory  instrument  allowing  to  partially  prohibit  trade  on  fishery 
products from the stock in question 

Description of the option: 

This  option  is  essentially  the  same  as  Option  3  but  where  the  import  ban  would  only 
concern  easily  identifiable  fish  products  that  do  not  necessitate  any  special  additional 
traceability or labelling provision. The main idea behind this option is that any possible 
loss  of  impact  of  the  import  prohibition  would  be  compensated  by  the  very  few 
additional  administrative  burden  that  it  might  produce,  since  this  burden  would  be 
limited  to  the  legislative  aspect  (which  would  be  considerably  simplified)  and  to  the 
additional checking effort that would appear at customs, that in any case would be much 
lower than in the case of option 3. In our study case on mackerel, the import ban would 
then be limited to the following products of Atlantic mackerel (Scomber scombrus): fresh 
or frozen round fish, flaps, fillets and canned and smoked Atlantic mackerel 

Environmental effects: 

Given the limitations of this option (it would exclude the high volumes of fish meal and 
oil),  it  is  thought  that  the  deterrent  effect  would  be  much  smaller  than  in  the  case  of 
Option  3.  Again,  one  cannot  predict  the  response  by  Iceland  and  Faroe  islands  to  an 
import ban of this nature, but we can imagine that the export companies affected would 
also  lobby  the  authorities  of  these  countries  and  later  rather  than  sooner  these  would 
reconsider their position vis-à-vis the other Coastal States. 

A reasonable assumption for the purpose of this exercise is that the said authorities will 
not  feel  in  a  hurry  to  achieve  an  agreement  and  therefore,  this  would  only  be  obtained 
two years after the import ban was put in place, i.e., the first agreed TAC would apply in 
2014. 

The forecasted effects on the spawning stock biomass and on F would hence be as shown 
in the graphs below: 

30 

 
)
F
(
y
t
i
l
a
t
r
o
m
g
n
h
s
i
F

i

0,400

0,350

0,300

0,250

0,200

0,150

0,100

0,050

0,000

F(Opt 4)

F(do)

F(Opt 1)

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

Fishing  mortality  remains  high  (as  in  Option  1)  until  the  year  of  the  first  agreement, 
where it adopts the target level of F=0.22, and keeps this value all through the period. 

)
t
0
0
0

'
(

B
S
S

3000

2500

2000

1500

1000

500

0

SSB(Opt 4)

SSB(do)

SSB(Opt 1)

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

As  one  could  anticipate,  recovery  of  the  SSB  towards  the  long-term  desired  levels 
(2.4miot)  takes  its  time  (5-6  years  after  the  agreement).  The  "alert"  level  of  2.2miot  is 
however never reached.  

Economic effects: 

The  following  graph  shows  the  catch  forecasted,  compared  to  Option  1  and  to  the 
desirable scenario: 

31 

 
 
 
 
 
 
h
c
t
a
c
U
E

450

400

350

300

250

200

150

100

50

0

EU(Opt 4)

EU catch (do)

EU(Opt 1)

2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2023 2024

The situation is very similar to the one observed for Option 3, but with one-year lag and 
with  a  more  difficult  recovery,  as  anticipated  due  to  the  late  reaction  to  achieve  an 
agreement.  Once  more,  this  responds  to  the  principle  that  overfishing  one  year  will 
require disproportionately large sacrifices later on to rebuild sustainability of the system. 
This  being  said,  there  is  no  doubt  that  this  option  produces  the  desired  effect  of 
restabilising  the  fishery  without  appreciable  environmental  risks  once  the  import  ban 
achieves its deterrent goal. 

Social effects: 

Same comments as above: similar to Option 3, attenuated 

Administrative costs 

Option 4 would entail a considerable improvement with respect to Option 3 in terms of 
administrative  burden.  It  would  in  any  case  require  1)  new  legislation  (co-decision 
regulation,  plus  implementing  acts),  but  presumably  much  simpler  than  in  the  case  of 
Option 3, since there would be no imperatives on traceability; 2) increased surveillance at 
customs  (but  again  mitigated  since  it  would  be  just  a  few  products  concerned)  and  3) 
legislation terminating the ban whenever it has produced the desired effects.  

The estimates of administrative burden can be summarized as follows: 

–  Administrative burden for business: 4 500€ 

–  Administrative burden for public authorities: 3 500€ 

Main drawbacks/other comments 

The  problem  associated  with  this  option  is  that  its  dissuasive  power  is  weakened  with 
respect  to  Option  3,  and  a  delay  in  achieving  an  agreement  results  in  reduced  catch 
opportunities in the following years.  

Option 5: Regulatory instrument allowing to adopt counter-measures 

Description of the option: 

32 

 
 
 
This  would  consist  of  a  regulatory  instrument  providing  for  "counter-measures"  in 
response  to  an  "internationally  wrongful  act"  committed  by  another  State.  Recourse  to 
such  "counter-measures"  is  recognised  under  customary  international  law  provided  that 
due process and proportionality requirements are met. "Counter-measures" could consist 
of trade-restrictive measures, limitations of access to ports and/or of any other measures 
that  are  capable  of  inducing  the  offending  State  to  discontinue  its  wrongful  conduct. 
They are justified if: 

–  Taken in response to a wrongful act; 
–  Taken after the offending State have been requested to abandon the wrongful conduct 
–  They aim at inducing the offending States to take remedial action 
–  Their effects are proportional to the effects of the wrongful conduct 
–  They  are  reversible  and  actually  lifted  once  the  offending  State  has  taken  remedial 

action 

The  nature  of  the  measures  to  be  taken  may  include  import  prohibitions,  but  is  not 
limited to those. Other possible measures are the suspension of bilateral agreements and 
the prohibition of access to ports. It should be noted that the import prohibitions do not 
strictly need to apply to the species subject to dispute, but may include other goods. What 
is more important in designing the appropriate set of measures is, in first place, that the 
EU should unambiguously establish the existence of the wrongful act on the side of the 
offending  State.  Ensuring  proportionality  of  the  measure  is  the  second  most  important 
aspect to consider. 

In the case of the mackerel, the most clear argument to establish that Iceland and Faroe 
Islands  acted  wrongfully  is  that  in  fixing  their  autonomous  TACs  at  such  high  levels, 
these  countries  have  breached  the  principle  of  "due  regard"  to  the  rights  and  duties  of 
other  States,  since  i)  the  magnitude  of  their  TACs  is  completely  out  of  proportion 
compared to existing fishing patterns ii) no scientific or objective argument has been put 
in support of these quantities and iii) the long-term losses for the EU fishing industry are 
very important (see assessment of Option 1). 

What  is  more  difficult,  although  not  impossible,  is  to  establish  the  proportionality 
condition. In the case of mackerel, if the losses for the EU fleet are evaluated in roughly 
40mio€/year,  for  the  counter-measures  to  be   effective  and  proportional,  they  should 
produce losses in Iceland and Faroe Islands of the same order of magnitude, but larger, in 
order to have the necessary inducing effect. 

It is not the purpose of this IA to determine exactly the nature of the counter-measures 
but just to show that there is room to apply them and means to design them. In the case of 
mackerel  such  a  possibility  exists,  although  not  free  from  controversy  and  requiring 
careful study. Fields of measures could in principle include i) access to ports and services 
to  fishing  vessels,  ii)  import  prohibition  of  mackerel  and  other  similar  species  and  iii) 
termination, suspension or not improvement of bilateral agreements. 

Environmental economic and social effects: 

Since the scope of counter-measures extends beyond the measures under Options 2 to 4, 
it  is  reasonable  to  assume  that  they  would  be  as  effective  as,  if  not  more  than,  the 
measures  under  those  options.  The  environmental  assessment  would  yield  at  least  the 
same  results  as  for  Option  3,  and  the  same  would  apply  for  the  economic  and  social 
aspects. It would be important to look carefully after the interests of the industrial sectors 
that would be affected on the side of the EU. For example, if the prohibition to import 

33 

 
mackerel has little effect on the EU processing industry because the EU production could 
easily fill the gap produced, this would not be necessarily the case for other species that 
would be included in the import prohibition. The termination or suspension of bilateral 
agreements may have an important effect also on the EU side33. 

Administrative burden 

As far as this aspect is concerned, the administrative burden would be even higher than 
for  Option  3:  on  the  one  hand,  it  would  cover  more  prohibitions  and  therefore  more 
monitoring  effort.  The  need  of  a  careful  analysis  and  selection  of  the  most  appropriate 
measures  will  therefore  add  weight  to  the  administrative  burden  for  both  public 
authorities and the industry. 

In this calculation, applicable to the mackerel case, we can assume that, in addition to the 
prohibition of Option 3, there would be a prohibition of access to ports and services that 
would generate administrative costs. The suspension or non-renewal of certain aspects of 
the bi-lateral agreements are taken as not generating additional administrative costs, since 
that is to be done in the context of the regular exchanges foreseen in the agreements. 

The estimates of administrative burden can be summarized as follows: 

–  Administrative burden for business19 000€ 

–  Administrative burden for public authorities: 19 000€ 

6.  SECTION 6: COMPARING THE OPTIONS 

In first place, it appears convenient to summarize the analysis made in Section 6: 

The options were given in the form of a list but in reality they respond to an organised 
scheme allowing to respond to the following questions: 

a)  Is it confirmed that EU action would have an added value? Is it justified that action 
be taken by the EU?. This may be responded by examination of Option 1 against the 
desirable  scenario:  how  bad  would  the  situation  would  be  if  the  dispute  and  the 
behaviour  of  the  non-cooperating  countries  is  maintained?  Or,  can  the  EU  remain 
idle? 

b)  If  it  is  confirmed  that  action  should  be  taken,  then  can  this  action  be  of  non-
legislative nature?. Analysis of the likely effects Option 2 would help to respond to 
this question 

c)  If the answer is that legal action should be taken, then what type of measure should 
be  taken?  The  answer  would  be  a  result  of  the  comparative  advantages  and 
disadvantages of options 3, 4 and 5. 

33   As an example, the exchange of fishing opportunities between the EU and the Faroe Islands foreseen 
in  the  bilateral  fisheries  agreement  has  not  taken  place  for  2011,  as  a  consequence  of  the  mackerel 
dispute. While this has important consequences for the Faroese fishing sector, many EU fleets are on 
their side suffering a loss of opportunities to fish in Faroese waters. 

34 

 
                                                 
The following analysis will then follow the above-mentioned sequence of questions. 

Question a): Is it justified that the EU should act? 

The environmental, economic and social consequences of letting the current situation to 
perpetuate  are  in  the  study  case  of  mackerel,  if  not  disastrous,  at  least  very  severe.  In 
environmental  terms,  sustainability  would  be  very  seriously  threatened:  the  high  risk 
(>21%) of falling below the limit value of 1.7miot (which might lead to a closure of the 
fishery)  would  mean  a  very  high  probability  (almost  a  certainty)  that  that  event  would 
occur  once  every  five  years.  This,  added  to  the  long-term  losses  in  yield  for  the  EU 
pelagic sector, make the no-action option absolutely unbearable. Other arguments exist, 
but  the  environmental  and  economic  arguments  (especially  the  known  case  of  blue 
whiting) more than sufficient for an affirmative response to this question. The fact that at 
present  the  mackerel  fishery  is  the  most  important  for  the  EU  in  economic  terms 
reinforces this assessment. Not acting in the mackerel case will be seen as disinterest of 
the EU institutions with regard to conservation of fish stocks and defence of the interests 
EU fishing industry. 

Question b): legislative or non-legislative action? 

The  analysis  of  Option  2  is  admittedly  rather  speculative  and  centred  on  eco-labelling 
schemes  and  information  to  consumers.  It  does  not  cover  other  non-legislative  action 
taken  by  the  industry  such  as  blocking  access  to  Faroese  vessels  to  EU  ports  since  we 
need  to  examine  institutional  action  by  the  EU  or  action  by  private  organizations  that 
could be promoted by EU institutions. EU action promoting blockage of access to ports 
by foreign vessels it is not conceivable if these are legally entitled to accede to EU ports. 

The analysis done concerns the particular case of mackerel, for which at present there is a 
generalised MSC certification of EU fisheries, whilst it is very unlikely that Iceland and 
Faroe Islands could obtain such a certification. The situation is ideal in this sense except 
for  the  fact  that  most  mackerel  consumers  would  be  guided  for  price,  quality  and 
freshness rather than by a eco-label. It is possible that for other products the promotion of 
eco-labels  and  extended  information  to  consumers  would  have  a  larger  influence  in 
market demand, but yet this needs to be translated into pressure on the fishing industry of 
the non-cooperating country. 

An  important  element  of  judgement  is  the  weak  support  given  by  the  fishing  sector  to 
this option, even when they are currently users of eco-labelling schemes. 

In  general  terms,  it  can  be  concluded  that,  while  non-legislative  action  may  potentially 
help in some cases, the option to take decisive legal action is highly preferable in most 
cases.  Even  if  it  were  preferable  in  few  cases,  this  would  justify  the  adoption  of  the 
necessary legal mechanism so the action could really be implemented in such few cases. 

Question c) what type of legal action? 

While the response to the first two questions was rather straightforward, to respond to the 
third question becomes trickier. It is  appropriate  to  synthesize  the  assessments  made  in 
the previous section. The table below includes a ranking of the options for each topic 

Environmental, 
economic and social 
effects 

Option 3 
•  Very rapid recovery 
to desired levels 

•  No risks of 

Option 4 
•  As Option 3, but 
effect perhaps 
delayed 

Option 5 
•  As Option 3, perhaps 
in a more effective 
manner 

35 

 
 
depletion(*) 
•  MSC certification 

• 

maintained 
 Improved 
confidence in 
managers 
Improved wages 
after recovery 
•  Better prices for 
consumers 

• 

RANK: 

Administrative burden 

RANK 
Main drawbacks 

• 
1 
Heavy: very detailed 
legislation (traceability), 
monitoring of many 
products 

2 
•  Difficulties related 
to determination of 
products containing 
the species 

•  Prove of respect of 
proportionality and 
equity of measures 

2 
Light: simpler 
legislation, less products 
to monitor 

1 
•  No major 

difficulties. Easier to 
prove respect of 
proportionality and 
equity 

1 
Heavier than for Option 
1: more detailed range 
of measures; 
controversial legislation, 
complex monitoring 
3 
•  As for Option 3, but 
more complex set of 
measures faces more 
complex difficulties 
of compatibility with 
law.  

RANK 

2 

1 

3 

(*) In the study case of mackerel, of SSB falling below the limit value of 1.7miot 

The  environmental,  economic  and  social  effects  are  very  closely  interlinked  and  very 
similar  to  the  three  options;  the  only  difference  is  that  it  is  expected  Option  4  may 
produce effects a given time later, since the measures adopted are not as stringent as in 
options 3 and 5. The lesser effectiveness of Option 4 is however compensated by a much 
easier application both in terms of drafting of legislation and of actual enforcement. The 
cumulated  rankings  (5,  4,  7)  does  not  give  dramatic  results  allowing  either  to  select  or 
deselect one or another option. 

It is moreover difficult to generalize the analysis made above for mackerel to other future 
cases.  There  could  be  situations  where  Option  3  is  not  applicable  since  all  imported 
goods made from the species in question are elaborated and transformed into industrial 
products.  In  other  cases,  trade  measures  would  be  inapplicable  (for  example,  if  the 
species in question is not subject to trade) but there is scope to adopt counter-measures 
for which an effective EU legal mechanism is lacking. 

With  this  in  mind,  one  is  tempted  to  conclude  that  the  best  option  would  be  one 
sufficiently flexible to absorb the main advantages of the 3 options above and capable to 
minimize their drawbacks and administrative costs. A possible description of that option 
would be an EU legal instrument with the following characteristics: 

a.  Primarily  based  on  Article  207  TFEU;  other  basis  are  also  conceivable  if 

measures envisaged are not trade-related 

b.  Describing  its  field  of  application  as  for  this  exercise:  situations  of  lack  of 
cooperation  in  fisheries  management  and  adopting  measures  that  go  far  against 
common international sharing practice and threaten sustainability. 

36 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
c.  Establishing  a  list  of  possible  measures  to  apply,  from  trade  restrictions  to 

counter-measures of diverse nature. 

d.  Setting  out  the  main  principles  and  criteria  upon  which  these  measures  should 

apply: effectiveness, proportionality, equity, compatibility with law, etc; 

e.  Giving the Commission implementing powers to apply the appropriate measures 
to the appropriate solution, in accordance with the above-mentioned criteria; 

f.  Specifying the type of impact assessment that should precede the exertion of the 

above-mentioned powers; 

g.  Setting out the specific mechanisms for control by Member States in accordance 

with the new Comitology Regulation34  

h.  Establishing  clear  rules  for  the  automatic  or  very  rapid  suspension  of  the 
measures  when  the  non-cooperating  State  has  adopted  appropriate  corrective 
measures; 

i.  The  Commission  would  also  be  authorised  to  create,  where  necessary,  new 

monitoring mechanisms whenever the existing ones would be insufficient. 

The field of application should clearly exclude the cases covered by the IUU legislation 
and  by  other  instruments.  The  list  of  measures  should  be  sufficiently  ambiguous  so  it 
would  not  exclude  newly  conceived  effective  and  uncontroversial  measures  whenever 
these  arise.  The  principles  and  criteria  under  d)  should  instead  be  very  strict  so  the 
margin of manoeuvre for the Commission is unambiguously established. 

This  solution  should  be  designed  to  allow  a  rapid  adoption  by  the  Commission  of 
measures inducing a change in behaviour of the non-cooperating countries as conceived 
under Options 3 to 5, according to the specific cases that would arise. 

7.  SECTION 7: MONITORING AND EVALUATION 

The objective of the whole exercise (see section 3) is to contribute to the conservation of 
fish resources and to bring them to levels that can produce maximum sustainable yield. 
The indicators commonly used to monitor the status of fish resources are the spawning 
stock  biomass  (SSB),  i.e.,  the  amount  of  fish  that  is  ready  to  spawn  at  the  time  of 
spawning and the fishing mortality (F), which indicate the rate at which fish is removed 
from the stock by the fishing activity. Other indicators exist that complement these and 
that illustrate the extent to which fishing activities do not just have an effect on the stocks 
targeted,  but  also  on  other  fish  or  marine  organisms  that  are  incidentally  captured  or 
damaged. 

34   Regulation (EU) No 182/211,  

http://eur-
lex.europa.eu/Result.do?arg0=modalit%C3%A9s+de+contr%C3%B4le+par+les+Etats+membres&arg
1=comp%C3%A9tences+d%27%C3%A9xecution&arg2=&titre=titre&chlang=fr&RechType=RECH_
mot&Submit=Rechercher 

37 

 
                                                 
 
At  present  there  is  a  highly  sophisticated  system  designed  to  guarantee  a  timely  and 
scientifically-based monitoring. The system includes the collection of data on the fishing 
activity,  sampling  and  collection  of  biological  data,  scientific  surveys  at  sea  using 
research vessels and a framework for the international collaboration of fisheries scientists 
allowing to collate and exchange data and information, conducted fish stock assessments 
and  provide  scientific  advice  for  fisheries  management.  In  the  case  of  the  North-east 
Atlantic,  most  of  these  activities  are  coordinated  by  the  International  Council  for  the 
Exploration of the Sea (ICES, see footnote No 20). Similar bodies exist for other fishing 
areas of EU fishing interest. 

The current framework for the collection of data for scientific analysis35 and the mandate 
of the Scientific and Technical Committee for Fisheries also provide a routine basis for 
the  production  of  economic  data  useful  to  monitor  the  performance  of  the  intended 
measure  by  indicators  such  as  economic  yields,  turnover  of  EU  fleets  and  their 
dependence  from  one  or  another  fish  stock. Follow-up  of  imports  is  also  routine  work. 
There is no reason therefore, for the time being, to create new systems or reinforce any of 
the existing systems to monitor the state of fish resources. 

8.  ANNEXES 

Annex I: analysis of the replies to the consultation 

Annex II: description of the problems on WHB and MAC 

Annex III: spreadsheets on the assessment of administrative burden 

Annex IV: list of acronyms 

35   Council  Regulation  (EC)  No 199/2008  of  25  February  2008  concerning  the  establishment  of  a 
Community  framework  for  the  collection,  management  and  use  of  data  in  the  fisheries  sector  and 
support for scientific advice regarding the Common Fisheries Policy 

38 

 
 
                                                 
 Annex I 
Analysis of replies to the consultation 

Analysis of the replies to the consultation launched 22 March 2011 on the basis of 
the consultation document " Impact Assessment on the possible utilisation by the 
EU of trade-related measures against non-cooperating States for the purpose of 
conservation of fish resources" 

1.  TECHNICAL DETAILS  

Rather than an open public consultation, a targeted one was chosen. This is mainly 
due to the highly specialised fields of work associated to the dossier: management 
of straddling and highly migratory stocks and international trade rules, on which the 
awareness  of  the  wide  public  is  supposed  to  be  very  low.  The  target  groups  were 
those represented in the main consultation bodies for the common fisheries policy: 
the Advisory Committee for Fisheries and Aquaculture (ACFA), the seven Regional 
Advisory Councils (RACs), and the authorities of Member States. 

The Advisory Committee  on  Fisheries and Aquaculture (ACFA) provides a forum 
for ongoing dialogue with the industry. Its 21 members represent the main branches 
of the industry – production, processing and trade, in both fisheries and aquaculture 
as well as consumer groups and organisations dealing with environmental protection 
and development. 

ACFA operates through four working groups, which deal with: 

•  fisheries resources and management 
•  aquaculture 
•  markets and trade policy 
•  general questions, including economics and the condition of the sector. 

The Regional Advisory Councils (RACs) were created as part of the 2002 reform of 
the  Common  Fisheries  Policy.  They  were  established  to  give  stakeholders 
(fishermen,  vessel  owners,  processors,  traders,  fish  farmers,  women’s  fisheries 
groups,  environmental  and  consumer  organisations  and  others)  a  vehicle  through 
which to feed recommendations into CFP policy developments. RACs must include 
stakeholders from at least two Member States. They each have a general assembly 
and  an  executive  committee.  The  fisheries  sector  has  two  thirds  of  the 
representatives  on  each  body,  and  other  interests  one  third.  In  addition  to  five 
geographical  RACs,  two  others  have  been  established  for  pelagic  stocks  and  the 
high seas fleet. 

•  Baltic Sea RAC  
•  Long Distance RAC  
•  Mediterranean Sea RAC  
•  North Sea RAC  
•  North-western waters RAC  
•  Pelagic stocks RAC  
•  South-western waters RAC 

39 

 
 
The consultation was opened 22 March 2011 and the last contribution was received 
and accepted on 30 May 2011, which makes the whole consultation period close to 
10  weeks.  A  consultation  document  (copied  in  the  appendix  to  this  annex))  was 
distributed to the target groups. It contained an explanation of the basic problem, a 
brief  analysis  of  the  possible  approaches  and  several  closed  and  open  questions 
allowing  a  complete  feed-back.  The  Commission's  minimum  standards  for 
consultation36 have been fully met and the Guidelines on organisation of stakeholder 
consultation  in  DG  MARE37  have  been  followed.  The  Commission  had  the 
opportunity to present and explain the consultation document to the two RACs more 
directly affected by the problem: the LDRAC and the PELRAC during the meetings 
of the Executive Committees of these RACs. 

2.  REPLIES RECEIVED 

Very few replies were received within the deadline foreseen in the consultation (10 
May). By 17 May the RACs most directly concerned (PELRAC and LDRAC) and 
several organizations constituting these RACs have already sent their contribution. 
In view of having as many replies from Member States as possible, a reminder was 
sent 17 May to those having failed to reply by that date. The latest contribution was 
received and admitted for this analysis by 30 May.  

The following is a summary of the contributions received: 

Target population: Member States: 

AT  DE  DK 

EE 

EL 

ES 

FR 

HU 

IE 

IT 

MT  NL 

LT 

PO 

PT 

SI 

UK 

e
t
a
D

5
0
/
8
1

5
0
/
0
2

5
0
/
0
3

5
0
/
3
2

5
0
/
0
2

5
0
/
0
1

5
0
/
6
1

5
0
/
8
1

5
0
/
3
1

5
0
/
0
3

5
0
/
5
2

5
0
/
8
1

5
0
/
0
2

5
0
/
6
1

5
0
/
3

5
0
/
5

5
0
/
9
1

It should be noted that this list includes all Member States directly affected by the 
mackerel dispute. 

Target population: stakeholders (RACs): 

–  PELRAC  (Pelagic  RAC):    reply  sent  11/05,  but  many  organizations 
belonging to this RAC also sent their individual contributions (see below) 

–  LDRAC (Long-Distance RAC): its reply was sent 10/05 but it consisted of 

four contributions by four organizations belonging to this RAC. 

–  BSRAC  (Baltic  Sea  RAC):  reply  sent  16  May  but  not  responding  to  the 
consultation  paper;  it  gave  just  a  general  support  to  the  Commission  in 

36   Towards  a  reinforced  culture  of  consultation  and  dialogue  –  General  principles  and  minimum 

standards for consultation of interested parties by the Commission. 

37   Note to Directors – Adonis No D 00166 of 6.01.2010 

40 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                 
seeking to find a solution in dealing with third countries that do not live up 
to management issues, consistent with the legal framework in place. 

The no participation by other RACs can be explained by the fact that it is just the 
above-mentioned  ones  that  are  directly  affected  by  disputes  like  the  one  existing 
now with Iceland and Faroe Islands on mackerel. 

Target  population:  stakeholders:  (ACFA):  One  of  the  organizations  (AIPCE-CEP) 
mentioned in its reply that it was to be considered in the ACFA position. However, 
there was no contribution from ACFA as collective entity. It is possible that some of 
the individual stakeholders organizations are represented both in ACFA and in the 
RACs, but it was not possible to attribute their reply to one or another committee. 

Target population: stakeholders. Individual replies by Organizations and date: 

–  NPWG/EAPO  (European  Association  of  Fish  Producers  Organisations, 

member of  PELRAC): 9/05 

–  SPFA  (Scottish  Pelagic  Fishermen's  Association,  member  of  PELRAC): 

10/05 

–  KFO  (Killybegs  Fishermen's  Organisation  Ld.,  member  of  PELRAC): 

10/05 

–  NFFO  (National  Federation  of  Fishermen's  Organisations,  member  of 

PELRAC) 

–  FEABP  (Federación  de  España  de  Armadores  de  Buques  de  Pesca, 

member of LDRAC): 10/05 

–  FEOPE  (Federación  Española  de  Organizaciones  Pesqueras,  member  of 

LDRAC): 10/05 

–  ADAPI  (Associação  dos  Armadores  de  Pesca  Industrial,  member  of 

LDRAC): 10/05 

–  ARVI (Cooperativa de Armadores de Pesca del Puerto de Vigo, member of 

LDRAC): 10/05 

–  AIPCE-CEP  (EU  Fish  Processors  Association,  CEP  stands  for  the  EU 
Federation of National Organisations of Importers and Exporters of Fish): 
6/05 

–  Klondyke FPO (Klondyke Fish Producers Organization): 10/05 

–  RSPB Scotland (Royal Society for the Protection of Birds, Scotland): 9/05 

Some  of  the  entities  consulted  did  not  reply  specifically  to  the  questions  of  the 
consultation document but gave just a general supportive reply (EE, LT, BSRAC). 

The catching sector was clearly predominant among the respondents to the consultation. 
The  processing  industry  and  the  environmental  NGOs  were  represented  only  by  one 
organization (AIPCE-CEP and RSPB, respectively). No contributions were received by 
the  other  sectors  represented  in  these  committees,  such  as  consumers,  fish  farmers, 

41 

 
traders, etc. In any case, it must be said that these sectors are only partially or secondarily 
affected by situations like the mackerel dispute. 

Anecdotally, a contribution was received by an individual that in the past was intimately 
associated  to  the  export  industry  and  now  is  retired  and  does  not  represent  any  of  the 
target groups. His contribution was not included in this analysis. 

General comments: 

There  is  a  clear  general  support  for  the  way  the  problem  is  perceived  and  for  the 
establishment of trade restrictions. The only exception to this general support came from 
the processing industry (AIPCE-CEP), a sector that does not want to see their sources of 
raw material restricted in any way. Among the options chosen, the weight of the opinion 
falls  mostly  in  favour  of  options  3  (regulatory  instrument  banning  all  products)  and  5 
(countermeasures).  Option  2  (the  soft  instrument)  received  a  moderately  enthusiastic 
support  by  Member  States  and  a  clear  rejection  by  most  stakeholders.  Both  Member 
States  and  stakeholders  were  clearly  in  favour  of  assuming  the  possible  short-term 
negative implications of an import ban in favour of long-term sustainability. As regards 
whether imports should be understood to cover transhipping, there is again clear support, 
especially  by  stakeholders.  Administrative  burden  associated  to  a  trade  ban  is  not 
perceived as a problem, either for it being relatively small of because it is fully justified 
as largely outweighed by the possible negative consequences of no action under a risk of 
overfishing.  

3.  MAIN RESULTS OF THE CONSULTATION: 

The main result and conclusions can be summarized as follows: 

1.  Representativeness  of  the  replies  received.  Generally  speaking,  the  replies 
received represented the main groups of stakeholders potentially affected by the 
problem. All Member States having fisheries of mackerel, blue whiting and other 
Atlantic  species  for  which  there  is  a  potential  or  real  problem  of  non-
collaborating  third-counties  responded  to  the  consultation.  The  industry  was 
particularly well represented as far as the catching sector is concerned, but only a 
contribution  was  received  from  the  processing  industry.  Environmental  NGOs 
sent only one contribution. 

2.  Perception  of  the  problem.  Member  States  fully  agreed  (47%),  mostly  agreed 
(47%)  or  just  partially  agreed  (6%)  with  the  perception  of  the  problem  as 
described  in  the  consultation  paper  (essentially,  the  same  description  as  in  this 
report,  see  section  3  below).  The  other  stakeholders  also  showed  high  support: 
75%  fully  agreed  and  25%  mostly  agreed.  Comments  received  point  to  the 
specific  gravity  of  some  elements  of  the  problem  (other  countries  and  fish 
species) and to expression of mistrust about the Commission's will or capacity to 
react appropriately. 

3.  Importance of the problem. Only one Member State (7%) perceived the problem 
as  of  moderate  importance;  the  others  felt  that  the  importance  was  very  severe 
(40%) or severe (53%).  Among the other stakeholders, only one (precisely that 
representing the processing industry) considered a moderate importance (8%); the 
remainder felt the importance as very severe (84%) or severe (one opinion-8%). 
The comments received outlined the possible outcomes of the mackerel problem, 

42 

 
the  particular  economic  importance  of  the  mackerel  fishery  and  the  need  to 
consider the gravity of the social consequences of the problem. 

4.  Need to act. 67% of Member States fully agreed and 33% mostly agreed on the 
need  to  act.  The  opinion  of  the  other  stakeholders  was  fully  consistent  with  the 
opinion  given  on  the  importance  of  the  problem:  84%  fully  agreed,  8%  mostly 
agreed  and  8%  just  partially  agreed on  the  need  to  act.  Comments  qualified  the 
action required as swift (preferably before the 2011 fishing season) and subject to 
Member  States  consultation.  The  processing  industry  was  not  convinced  on  the 
need to act since voluntary approaches by the purchasers and consumers could be 
enough. 

5.  Possible approaches. The consultation document gave an analysis of the possible 
approaches to use trade measures in order to stimulate good fishery management 
behaviour, by going through the existing legislation, mainly the IUU Regulation, 
the  international  framework  for  fisheries  and  trade  governance  and  the  use  of 
trade  measures  by  RFMOs.  Among  Member  States,  47%  fully  agreed,  33% 
mostly agreed and 20% just partially agreed with the analysis. The opinions of the 
other stakeholders were more dispersed: only one organization 8% fully agreed, 
67% mostly agreed, 8% partially agreed and 17% did not agree at all. Comments 
from Member States referred to the need to analyse settlement procedures under 
UNCLOS and perhaps amend the IUU regulation. Most stakeholders referred to 
independent legal advice pointing to the applicability of the IUU regulation in the 
case  of  mackerel;  others  (those  disagreeing  with  the  analysis)  stated  that  the 
international framework is either useless or can just be disregarded. 

6.  Trade restrictions as a solution. The consultation paper sought confirmation about 
the use of trade measures as a possible solution to problems like those described 
for  mackerel  and  blue  whiting.  Member  States  were  divided:  21%  fully  agreed, 
43%  mostly  agreed,  29%  partially  agreed  and  one  Member  State  (7%)  barely 
agreed.  The  other  stakeholders  were  more  conclusive:  75%  fully  agreed,  17% 
mostly agreed and only 8% (one organization: the processing industry) just barely 
agreed. Observations were made on the need to approach the problem overfishing 
more globally while not abandoning other routes to push for negotiated solutions. 

7.  Analysis of possible options: 

Option 1: no action. 

Among  Member  States,  20%  considered  it  just  as  a  last  resort,  while  80% 
judged  it  as  ineffective.  All  other  stakeholders  (100%)  considered  it 
ineffective. 

Option 2: a soft instrument, non-legislative, such as sustainability labels, "name and 
shame" exercises, diplomatic demarches and so on. 

Member  States  believed  this  option  could  be  more  or  less  effective  (64%), 
only a last resort (29%) or ineffective (7%). The other stakeholders were more 
conclusive  in  that  all  organizations  but  one  (91%)  considered  this  option  as 
ineffective and only one (9%) as more or less effective. 

Option 3: regulatory instrument addressing imports of all products originated in the 
country concerned and made from the species subject to dispute. 

43 

 
This option received most support from Member States: 43% considered it as 
effective and 57% as more or less effective. The other stakeholders expressed 
also  a  clear  support,  considering  it  effective  (64%)  or  more  or  less  effective 
(36%).  

Option 4: more limited regulatory instrument, including only easily identifiable fish 
products. 

Member  States  found  this  option  as  effective  (14%),  more  or  less  effective 
(72%)  or  as  a  last  resort  (14%).  The  other  stakeholders  showed  weaker 
support, considering it as more or less effective (22%), a last resort (56%) or 
ineffective (22%). 

Option  5:  regulatory  instrument  providing  for  countermeasures,  of  very  diverse 
nature, inducing the offending State to discontinue its wrongful conduct. 

Member  States  found  this  option  effective  (36%),  more  or  less  effective 
(43%)  or  as  a  last  resort  21%.  The  other  stakeholders  took  this  option  as 
effective (80%), more or less effective (10%) or as a last resort (10%). 

Other options (ad libitum) 

Some  Member  States  pointed  to  the  combined  use  of  the  options,  the 
inclusion  of  all  fish  products  (and  not  just  the  species  in  cause)  in  the  trade 
restrictions and the ITLOS38 mechanism. The other stakeholders also pointed 
to  the  combined  use  of  options  and  included  the  possibility  to  suspend  the 
Iceland accession process, the measures that are put in place in other countries 
such as the USA and the banning of imports of fishmeal irrespectively of its 
species composition. 

38   International Tribunal for the Law of the Sea 

44 

 
  
                                                 
Appendix to Annex I 

Consultation document including a summary of the replies received. 

Note: all texts in italics belong to the original consultation document 

CONSULTATION DOCUMENT 

Subject: Impact Assessment on the possible utilisation by the EU of trade-related 
measures against non-cooperating States for the purpose of conservation of fish 
resources 

Disclaimer:  This  paper  has  been  prepared  by  Commission  services  to  consult 
stakeholders on the above-mentioned issue. Its contents cannot be construed as reflecting 
or  pre-empting  the  European  Commission's  definitive  views  or  positions  of  the  subject 
matters  in  issue.  The  European  Commission  cannot  be  held  responsible  for  any  use 
which might be made of the information contained therein. 

Target Groups consulted: 

- The Advisory Committee for Fisheries and Aquaculture (ACFA) 
- Regional Advisory Councils (RACs)  
- Member States' experts (through the Committee for Fisheries and Aquaculture) 

Expected  replies:  In  written,  by  post  to  the  address  European  Commission,  1049 
Brussels, BELGIUM or by e-mail to: 

MARE-SHARED-STOCKS-CONSULTATIONS@ec.europa.eu 

 Deadline: 10 May 2011 

4.  DESCRIPTION OF THE PROBLEM 

The UN Convention on the Law of the Sea39 as well as the UN Fish Stocks Agreement40 
provide for the obligation of coastal States and States fishing for such stocks on adjacent 
high  seas  to  cooperate  in  managing  responsibly  straddling  and  highly  migratory  fish 
stocks  in  order  to  ensure  their  long-term  sustainability,  either  by  direct  consultation 

39   United Nations Convention on the Law of the Sea (Montego Bay Convention), OJ L 179, 23.6.1998, p. 

3. 

40   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 (in force as from 11 December 2001), OJ 
L 189, 3.7.1998, p. 17. 

45 

 
 
 
 
 
                                                 
amongst  each  other  or  via 
Organizations (RFMOs) in their geographical context. 

the  appropriate  Regional  Fisheries  Management 

Disagreement on the management of straddling and highly migratory stocks is frequent 
and  to  arrive  at  useful  arrangements  the  willingness  of  all  parties  concerned  to 
cooperate, is required, including the EU, and third countries. It is not infrequent that one 
or more of the third parties refuse to show the willingness to cooperate and prefer to fish 
at  a  unilaterally  chosen  intensity  for  a  number  of  years.  Such  behaviour  may  lead  to 
considerable  depletion  of  the  fish  stock  in  question  even  if  other  parties  engage  in 
moderating their fishing rates. 

The  EU  is  now  suffering  the  consequences  of  too  long  and  unsuccessful  consultations 
and  negotiations  both  between  the  North-East  Atlantic  coastal  states  and  in  the 
framework of the North-East Atlantic Fisheries Commission (NEAFC) before finally an 
arrangement  was  reached  on  the  management  of  the  North-East  Atlantic  stock  of  blue 
whiting. Due to a series of years of disagreement that led to very serious depletion of the 
stock and as a consequence, the Total Allowable Catch (TAC) for this species had to be 
set for 2011 at 40100t, less than 7% of the level of 2010 (540000t). This has resulted in 
disastrous consequences for the viability of this fish stock and therefore for certain EU 
fleets, and in a very meager probability of rebuilding the stock to sustainable levels in the 
medium  term.  Such  outcomes  run  contrary  to  the  fundamental  objectives  of  the  EU's 
Common Fisheries Policy. 

At present the EU faces such a problem with the stock of North-East Atlantic mackerel. 
In this case the lack of agreement among coastal States, is compounded by the setting by 
Iceland  and  Faroe  Islands  of  autonomous  catch  limits  at  very  high  and  biologically 
unviable levels, not sustained by any objective argument either on the basis of historical 
rights or stock distribution, and contrary to scientific advice. 

The EU cannot remain inactive in  a situation  where third countries refuse to abandon 
harmful  unilateral  behaviour  and  fail  to  show  the  necessary  goodwill  to  achieve  an 
arrangement for the management of migrating fish stocks (such as mackerel).  Indeed, in 
that situation to maintain the unlimited access to a lucrative EU market for such stocks 
constitutes not only a political contradiction but also a stimulus to continue the intensive 
over-exploitation of the stock by third countries. The EU should therefore be able to have 
an instrument to address these cases efficiently. 

As a summary, the problem is perceived at two levels: 

(i) A concrete problem… 

At  present  the  EU  faces  the  immediate  threat  of  overexploitation  of  the  stock  of 
mackerel  due  to  the  attitude  of  certain  third  States,  which  appear  to  exploit  the 
short-term benefit for part of their fleet of pelagic fishing in total disregard of the 
international obligations to cooperate with the other coastal States and the viability 
of the fish stock.  

(ii) …that raises a general problem 

It is possible that such a lack of cooperation and risk of overexploitation becomes 
evident  in  the  short  term  for  other  shared  stocks  and  other  parties.  Any  such 
situation  cannot  be  excluded  in  other  areas  where  the  EU  shares  fisheries  with 
other States. 

46 

 
When facing situations of unwillingness by any given third country to cooperate on the 
management of a straddling and highly migratory fish stock on which the EU shares an 
interest,  and  where  the  attitude  of  such  country  poses  a  risk  of  overfishing  that  would 
require  subsequent  sacrifices  by  all  parties  engaged  in  rebuilding  the  stock  to 
sustainable levels, there is a need to take appropriate action. However, the existing legal 
framework does not provide with any effective measure in support of this approach, and 
it becomes imperative to find new avenues. 

Questions: 

(1) 

Do you agree with this perception of the problem? 

Target population: Member States' authorities: 

Partially 

Barely 

Not at all 

Fully 
ES, IE, FR, 
PO, AT, 
UK, IT 

Mostly 
PT, SI, NL, 
HU, EL, 
DE, MT, 
DK 

Observations: 

ES: Iceland and Faroe are willing to get a place in the fishery that they didn't have 
historically. 

FR: The problem becomes aggravated by the suspension of quota exchanges under 
the  bilateral  agreements  (Faroese  case)  and  by  the  distortion  of  the  international 
markets (competition for the Russian market). 

NL: The unilateral TACs by Iceland and Faroe Islands constitute a wrongful act, a 
violation of UNCLOS Articles 63 and 117-119 and in conflict with Articles 2 and 
4(b) of the NEAFC Convention. 

EL: Lack of cooperation endangers the viability of stocks. 

UK: It is vital that the blue whiting case is not repeated for mackerel 

DE:  Russia's  behaviour  on  blue  whiting  and  redfish  should  be  included  in  the 
analysis 

DK:  Agree  that  continued  setting  of  unilateral  quotas  is  unsustainable.  All 
possibilities for reaching a negotiated agreement must be exhausted 

Target population: stakeholders: 

Fully 

Mostly 

Partially 

Barely 

Not at all 

AIPCE, 
FEOPE, 
ADAPI 

Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 
FEABP, 
ARVI, 

47 

 
 
 
 
 
 
 
 
 
 
 
 
NFFO, 
PELRAC 

Observations: 

FEOPE:  The  problem  is  also  the  the  EU  delegation  in  negotiations  is  ill  prepared 
and ha snot consulted duly the opinion of the fishing sector. 

NFFO:  The  EU  appears  to  be  looking  for  delayed  mechanisms  rather  than  taking 
action, which is possible now according to legal analysis available. 

PELRAC: Action in the short term should also be undertaken with priority without 
compromising the interests of the EU pelagic fishing fleet. 

What is your perception of the importance of the problem? 

Target population: Member States' authorities: 

Very severe 
PT, IE, FR, 
PO, AT, UK 

Severe 
SI, ES, NL, 
EL, DE, 
MT, IT, DK 

Moderate 

Appreciable 

Insignificant

HU 

Observations: 

ES: In the case of mackerel, the risk is not imminent since the stock is good shape. 

IE:  The  current  behaviour  of  certain  Coastal  States  will  ultimately  lead  to  the 
depletion of stocks to the detriment of all Coastal States. 

NL:  The  threat  to  sustainability  is  confirmed  by  scientific  projections  that  point 
towards depletion of the stock of mackerel (limit reference point reached) by 2016. 

EL: In particular since there is a documented risk for the stock to fall outside safe 
biological limits. 

UK:  Scientific  projections  point  to  a  rapid  decline  if  the  situation  is  maintained. 
Action should be taken therefore sooner than later. 

Target population: stakeholders: 

Severe 

Moderate 

Appreciable 

Insignificant

ARVI 

AIPCE 

Very severe 
Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 
FEABP, 
FEOPE, 
ADAPI, 
NFFO, 
PELRAC 

48 

 
 
 
 
 
 
 
 
 
 
 
RSPB  is  particularly  concerned  that  the  MSC  certification  can  be  lost  and  that 
mackerel, of high value for human consumption, be converted into fishmeal. 

FEOPE: the socio-economic effects are always ignored. 

ADAPI: It's about time that the EU addresses unsustainable fishing practices by our 
neighbours in order to avoid disloyal concurrence. 

PELRAC: Mackerel is the single most valuable stock for the EU fishing industry. This in 
itself illustrates the importance of the problem. 

Do you agree on the need to take action? 

Target population: Member States' authorities: 

Mostly 
SI, HU, EL, 
MT, DK 

Fully 
PT, ES, IE, 
FR, PO, AT, 
NL, UK, 
DE, IT 

Observations: 

Partially 

Barely 

Not at all 

IE: Strong action needs to be taken as a matter of urgency 

NL:  Time  to  act  swiftly:  it  would  be  outrageous  to  meet  the  current  demands  of 
Iceland and Faroe islands. 

UK:  Mackerel  is  extremely  important  for  the  UK.  Support  for  action  that  is 
proportionate  and  tailored  to  individual  circumstances,  subject  to  scrutiny, 
consultation and agreement with Member States. 

DK: Action must include all possibilities of reaching a negotiated agreement. 

Target population: stakeholders: 

Fully 

Mostly 

Partially 

Barely 

Not at all 

FEABP 

AIPCE 

Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 
FEABP, 
FEOPE, 
ADAPI, 
ARVI, 
NFFO, 
PELRAC 

Observations: 

49 

 
 
 
 
 
 
 
 
 
 
 
 
 
AIPCE:  Not  convinced  that  action  is  needed:  voluntary  action  by  purchasers  and 
consumers would be enough. 

RSPB,  NFFO,  PELRAC:  Furthermore,  action  should  be  expedient,  with  a  view  to 
solve the problem as a matter of urgency, before the 2011 fishing season. 

ADAPI:  Better  late  than  never.  Action  should  be  taken  without  regard  to  the 
international importance of the country concerned. 

5.  POSSIBLE APPROACHES 

The  present  initiative  aims  at  exploring  the  possibility  of  using  trade-related  measures 
against countries and products from stocks that are in situations such as those described 
above  for  blue  whiting  and  mackerel.  These  measures  would  mainly  aim  at  promoting 
conservation of the stocks concerned by inducing a reduction of the intensity of fishing of 
the third parties concerned, this without prejudice to the need to continue consultations 
and, where required, use the existing mechanisms of dispute settlement. They would only 
be  implemented  when  bilateral  or  regional  cooperation  has  failed  to  establish  an 
appropriate management regime for the stocks concerned.  

The "IUU Regulation"41 contemplates inter alia the use of trade restrictions for vessels 
engaged in illegal, unreported and unregulated fishing. However, it is not considered as 
applicable  for  the  problem  described  above.  The  IUU  Regulation  addresses  issues  of 
lack  of  compliance  with  applicable  international  and  domestic  conservation  and 
management  measures,  whilst  the  measures  that  are  being  envisaged  in  the  present 
context target fisheries not covered by agreed conservation and management measures, 
conducted in absence of cooperation with other coastal States and constituting a threat 
to sustainability.  

Other examples of the application of trade restrictions for conservation purposes are the 
CITES  Convention,  transposed  in  EU  legislation  by  Regulation  (EC)  No  338/9742,  and 
certain recommendations made in the context of RFMOs . None of these instruments can 
be  used  in  the  cases  above-mentioned.  In  the  case  of  CITES,  mainly  because  this 
Convention allows trade restrictions only when the danger is imminent and very serious, 
which  may  be  too  late  when  the  threat  is  just  overexploitation  and  not  necessarily 
complete  depletion  of  the  stock.  In  the  case  of  RFMOs,  trade  restrictions  have  been 
agreed in certain cases (bluefin tuna in ICCAT, toothfish in CCAMLR), but this is not a 
generalized  approach.  Furthermore,  RFMOs  adopt  rules  for  the  management  in  their 
regulatory area, which does not necessarily coincide with the area where the problem is 
found, as it was the case for mackerel and blue whiting described above.  

The approach that is being envisaged needs to be analyzed in the context of the relevant 
international  law,  including  international  customary  law,  the  International  Law  of  the 

41   Council  Regulation  (EC)  No  1005/2008  of  29  September  2008  establishing  a  Community  system  to 
prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) 
No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 
and (EC) No 1447/1999 

42   Council Regulation (EC) No 338/97 of 9 December 1996 on the protection of species of wild fauna 

and flora by regulating trade therein. OJ L 61, 3.3.1997, p. 1–69 

50 

 
                                                 
Sea, international treaty law, international trade law, mainly the GATT Agreement, and 
any  other  bilateral  or  multilateral  international  agreements  such  as  the  EEA.  Any 
measure  imposing  trade  restrictions  will  have  to  be  fully  consistent  with  this  legal 
framework 

Questions: 

Do you agree with this analysis of the possible approaches? 

Target population: Member States' authorities: 

Fully 
ES, IE, AT, 
UK, DE, IT, 
DK 

Mostly 
SI, FR, PO, 
HU, EL 

Partially 
PT, NL, MT 

Barely 

Not at all 

Observations: 

PT: The IUU regulation should be applied to Iceland and Faroe Islands. 

FR:  The  economic  sanctions  should  cover  all  other  species  concerned.  As  an 
example, deep water fish from Faroe Islands. 

NL:  The  analysis  of  possible  measures  should  include  "countermeasures"  and 
dispute  settlement  procedures  under  UNCLOS  (although  it  is  recognized  that  this 
will be a lengthy process). 

EL: Agree that the existing framework does not allow to cover the cases described. 

UK:  Need  to  re-consider  the  use  of  the  IUU  scheme,  possibly  by  amending  the 
Regulation.  Further  consideration  also  to  use  the  ITCLOS  mechanism  This  also  a 
good opportunity to reconsider the remit and powers of RFMOs. 

MT: Better coordination is required in RFMOs. 

DK: Important to ensure full consistency with international law. 

Target population: stakeholders: 

Fully 

Mostly 

Partially 

Barely 

Not at all 

NFFO 

SPFA, 
FEOPE 

ARVI 

AIPCE, 
Klondyke, 
EAPO, 
RSPB, KFO, 
FEABP, 
ADAPI, 
PELRAC 

Observations: 

51 

 
 
 
 
 
 
 
 
 
 
EAPO, KFO, ADAPI, PELRAC: In addition, independent legal advice suggests that 
the IUU regulation could be applied.  

SPFA,  NFFO:  Action  should  be  taken  regardless  of  being  outside  perceived 
international law 

FEOPE: Do not think that the IUU Regulation, CITES, UNCLOS, GATT or EEA 
are  of  any  use.  Furthermore,  RFMO  measures  are  not  always  compulsory  and 
contracting parties can object. 

Do you agree in particular that trade restrictions may be a solution? 

Target population: Member States' authorities: 

Fully 
FR, NL, IT 

Mostly 
PT, SI, IE, 
PO, DE, MT 

Partially 

Barely 

Not at all 

AT, HU, 
EL, UK 

DK 

Observations: 

PT: Attention to fish products entering the EU via a third country. 

SI: Trade restrictions are largely ineffective. 

ES:  The  effect  of  trade  restrictions  may  be  limited  in  the  case  of  mackerel,  since 
there are other markets. 

IE:  Fully  supportive,  but  are  concerned  as  to  the  long  time  it  may  take  to  put 
concrete measures in place. 

AT:  The  question  is  whether  EU  import  restrictions  can  solve  the  worldwide 
problem of overexploitation of fish stocks. Aquaculture may give a better solution. 

NL: Yes to trade measures but also continue pushing for a negotiated solution. 

EL:  Trade  restrictions  do  not  address  the  problem  globally.  There  should  be 
complementary measures 

UK: Trade related sanctions play a role in encouraging parties back to negotiation 
table, but are not the only means to solve the crisis. 

DE:  Trade  restrictions  could  help  to  push  certain  countries  to  adopt  more 
constructive positions. 

MT:  Trade  restrictions  serve  only  partially.  Soft  tools  such  as  eco-labels  may 
undermine sustainable development. 

DK: The trade restrictions mentioned are seen prima facie to be against international 
law  (Notably  WTO/GATT).  Furthermore  such  steps  could  escalate  the  friction 
between the parties. 

Target population: stakeholders: 

52 

 
 
 
 
 
Fully 

Mostly 

Partially 

Barely 

Not at all 

FEOPE, 
ADAPI 

AIPCE 

Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 
FEABP, 
ARVI, 
NFFO, 
PELRAC 

Observations: 

AIPCE: The legislative route is not necessarily appropriate. 

KFO,  PELRAC:  Yes,  and  they  should  progressively  include  other  products  and 
other fish, including whitefish. 

FEOPE: Within the current setup it is difficult to get the measures in time. 

ADAPI: Yes, but we need to be careful of possible entries via a third country. 

6.  POSSIBLE OPTIONS TO ADDRESS THE IDENTIFIED PROBLEM 

A first option would be to take no action and expect that external circumstances change, 
inducing a change in the attitude of the third countries in cause. As an example, in the 
case  of  mackerel  one  could  expect  a  change  in  the  distribution  and  migration  of  the 
stock, so it becomes unavailable or scarce in the waters of Faroe Islands and Iceland, as 
it  was  the  case  a  few  years  ago.  This  scenario  is  however  associated  to  the  risk  of  a 
worsening of the situation if the expected changes operate in opposite direction.  

A  second  option  would  be  to  take  measures  in  the  form  of  non-legislative  instruments, 
such as mechanisms of the type "blame and shame", sustainability labels or diplomatic 
démarches in different forms. Such measures would aim at discouraging consumers from 
buying  the  fish  products  originating  from  a  non-cooperating  country  or  to  put  direct 
political pressure on that country. Such mechanisms have to be studied to see if they can 
be effective but there may also be (technical or other) drawbacks that need to be studied 
carefully, since in addition their associated administrative burden can be non-negligible.  

A  third  option  would  be  to  provide  the  common  fisheries  policy  with  a  regulatory 
instrument allowing a quick response to the problem by imposing trade-related measures 
on  fish  products  derived  from  the  relevant  fish  stock  and  that  have  an  origin  in  the 
country  concerned.  At  first  sight,  this  would  seem  to  be  an  effective  approach,  but  it 
should  be  carefully  defined  so  that  it  is  compliant  with  multilateral  and  bilateral  trade 
agreements and obligations. The approach also necessitates identifying and determining 
the  origin  of  the  products  at  the  customs,  in  particular  where  the  products  have  been 
transformed or elaborated substantially in different countries. 

A fourth option would be to impose limited trade restrictions so as to exclude from them 
products for which the determination of the origin would be disproportionately difficult. 

53 

 
 
 
 
 
 
 
A fifth option would consist of a regulatory instrument providing for "counter-measures" 
in response to an "internationally wrongful act" committed by another State. Recourse to 
such "counter-measures" is recognised under customary international law provided that 
due process and proportionality requirements are met. "Counter-measures" could consist 
of trade-restrictive measures, limitations of access to ports and/or of any other measures 
that are capable of inducing the offending State to discontinue its wrongful conduct. 

In  the  cases  of  options  2  to  4,  the  measures  taken  should  be  either  limited  in  time  or 
subject  to  revision  on  account  of  a  change  in  the  circumstances  that  had  led  to  their 
adoption. In the case of "counter-measures", the measures taken must be reversible; they 
must actually be lifted once the offending State has put an end to its wrongful conduct.  

The  burden  associated  to  the  legislative  process  not  only  for  the  adoption  of  the 
regulation setting out the instrument, but also for subsequent specific acts applying the 
instrument  to  one  or  another  situation,  should  also  be  weighed  against  the  expected 
benefits.  

Other options are possible and can be suggested for consideration. 

Questions: 

Which  kind  of  measures  would  you  consider  effective  in  solving  the  problem 
identified? 

Target population: Member States: 

Effective 

 More or less 
effective 

Last resort 

Ineffective 

PT, SI, IE, 
PO, AT, NL, 
HU, EL, UK, 
DE, MT, IT 
IT 

Option 1: no action 

ES, FR, UK 

IE, FR, NL, 
EL 

PT, SI, ES, 
PO, AT, HU, 
UK, DE, MT 
SI, IE, FR, 
AT, EL, UK, 
DE, IT 

PT, ES, NL, 
HU, MT 

ES 

PT, ES, IE, 
NL, IT 

PT, SI, IE, 
FR, AT, NL, 
EL, UK, DE, 
IT 
SI, FR, AT, 
HU, EL, UK 

HU, MT 

DE, MT 

IE, FR 

NL, UK 

Option 2: soft 
instrument 

Option 3: regulatory 
instrument (trade 
restrictions on fish 
products derived from 
the relevant fish stock) 
Option 4: regulatory 
instrument (more limited 
trade restriction) 

Option 5: regulatory 
instrument ("counter-
measures") 
Other options (describe 
below) 

Observations: 

54 

 
 
 
 
 
 
 
 
 
 
 
 
ES: Neither the accession process (Iceland) nor the special relations with Denmark 
(Faroe Islands) should be an obstacle. 

IE:  Suggests  an  incremental  approach,  starting  by  prohibition  of  imports  of 
mackerel,  followed  by  prohibiting  imports  of  fish  meal  and,  if  necessary,  of  any 
fishery product. Shortfalls of fish products can be covered by other imports. 

FR:  As  said  before,  import  restrictions  should  cover  other  species.  Diplomatic 
démarches only can aggravate the atmosphere for negotiations. 

PO: For option 2, rather less than more effective. 

NL: Options 3 and 4 are, respectively, potentially effective and potentially more or 
less effective. The "name and shame" option might backfire on the EU. 

EL: Better use a combination of options. Use UNCLOS, the Fish Stocks Agreement 
and the FAO Code of Conduct for Responsible Fisheries 

UK: Soft measures may help but are insufficient by themselves; option 3 should be 
subject  to  scrutiny  and  consultation  with  Member  States  before  its  application  to 
individual  cases.  On  option  4,  all  efforts  should  be  made  to  identify  as  many 
products as possible. Countermeasures could be taken in combination with options 2 
and 3. As "other options", consideration should be given to the ITLOS mechanism. 

DE: the soft instrument is necessary but not sufficient. 

MT: Option 3 is the preferred one. 

IT: Option 3 requires long time 

DK:  Any  measure  imposing  trade  restrictions  must  be  fully  consistent  with 
international  law.  The  outlined  trade  restrictive  measures  give  rise  to  serious 
concern  regarding  compatibility  with  international  law.  This  is  especially  the  case 
with  option  2,  3  and  5,  which  risk  violating  the  national  treatment  principle  in 
GATT. 

Target population: Stakeholders: 

Effective 

 More or less 
effective 

Last resort 

Ineffective 

Option 1: no action 

Option 2: soft 
instrument 

Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 
FEABP 
FEOPE, 
ADAPI, 
NFFO, 
PELRAC 
Klondyke, 
EAPO, 
SPFA, 
RSPB, KFO, 

ADAPI 

55 

 
 
 
 
 
 
 
FEABP 
FEOPE, 
NFFO, 
PELRAC 

Option 3: regulatory 
instrument (trade 
restrictions on fish 
products derived from 
the relevant fish stock) 

Option 4: regulatory 
instrument (more limited 
trade restriction) 

Option 5: regulatory 
instrument ("counter-
measures") 

Other options (describe 
below) 

Observations: 

RSPB, KFO 
FEOPE, 
PELRAC 

Klondyke, 
EAPO, 
SPFA, 
FEABP, 
ADAPI, 
ARVI, NFFO

FEABP, 
ADAPI 

RSPB 

Klondyke, 
EAPO, 
SPFA, KFO, 
PELRAC 
FEABP 

FEOPE, 
NFFO 

Klondyke, 
KFO, 
PELRAC 

Klondyke, 
EAPO, 
SPFA, KFO 
FEOPE, 
ADAPI, 
NFFO, 
PELRAC 
EAPO, 
NFFO 

AIPCE: None of the said measures is preferred. 

EAPO,  KFO:  Use  the  IUU  regulation,  suspension  of  accession  talks.  Trade  on 
mackerel is relatively small, and therefore trade sanctions should include all fish and 
fish products; 

SPFA: Combinations of measures should also be foreseen. 

KFO: A major diplomatic offensive would be "more or less effective". 

FEOPE:  It  would  be  interesting  to  copy  correlated  systems  in  force  in  other 
countries as the USA. 

NFFO: Ban all fish meal coming from Iceland and Faroe islands, since it is difficult 
to recognize whether it contains mackerel. Escalate the ban to include other species 
if necessary. Suspend accession negotiations with Iceland. 

PELRAC: A restriction of the imports of all fish and fishery products from Iceland 
and the Faroe Islands should be considered as a serious option. 

7.  POSSIBLE EFFECTS OF IMPORT LIMITATIONS OR RESTRICTIONS 

This section enters into some detail about the specific effects of one or another option.  

56 

 
 
 
 
 
 
 
 
The  EU  market  of  fish  products  is  partly  dependent  on  imports.  Any  limitation  or 
restriction  of  these  may  have  a  non-negligible  impact  on  the  supply  to  the  EU  market. 
The degree of such impact will depend very much on the type of product, the quantities 
being  subject  to  restriction  or  allowed,  the  possibility  to  find  alternative  sources  of 
supply  and  the  final  destination  of  the  product  (direct  human  consumption,  fish 
processing industry, fish meal and oil industry, etc). Although at this juncture it would be 
difficult  to  evaluate  the  effects  of  trade  restrictions  as  a  general  measure,  perhaps 
stakeholders could give an opinion on the following assertion: 

"It is possible to assume the implications of a trade restriction or limitation on the 
EU  market  in  the  short  term,  if  this  is  done  for  the  sake  of  ensuring  the 
sustainability of the stock and avoid stock depletions, which is the main condition to 
guarantee the long-term supply of the EU market" 

Question: 

Do you agree with this assertion? 

Target population: Member States' authorities: 

Fully 
ES, FR, IT 

Mostly 
PT, SI, IE, 
PO, AT, NL, 
UK 

Partially 

Barely 

Not at all 

HU, EL, 
MT, DK 

Observations: 

PT:  Need  to  supply  the  market;  the  strategic  orientation  of  the  CFP  towards  fleet 
reduction does not help. 

ES:  The  EU  fleet  production  can  compensate  largely  the  losses  resulting  from  an 
import ban. 

IE, FR: Long term losses of mackerel for our fishing industry largely outweigh any 
short term discomfort strong trade restrictions may pose. 

AT: Such a general question cannot be usefully commented by stakeholders. 

NL: Attention should be paid to proportionality. 

EL:  As  it  difficult  to  assess  the  effectiveness  of  trade  restrictions,  it  is  difficult  to 
justify whether their implications can be assumed. 

UK:  In  every  individual  case  it  should  be  possible  to  assess  rather  accurately  the 
positive and negative impacts. UK has a perception of the potential negative impacts 
to be limited. 

MT: if there are socio-economic negative effects, then measures should be taken to 
mitigate them 

Target population: stakeholders: 

Fully 

Mostly 

Partially 

Barely 

Not at all 

57 

 
 
 
 
 
 
 
FEABP 
FEOPE, 
ADAPI 

Klondyke, 
EAPO, 
SPFA, KFO, 
ARVI, 
NFFO, 
PELRAC 

AIPCE 

Observations: 

AIPCE:  Trade  measures  applied  only  to  the  EU  might  unintentionally  have 
significant  impact  on  legitimate  trade  flows,  which  do  not  help  to  guarantee  long-
term supply for the EU. 

FEOPE,  PELRAC:  Add:  in  order  to  protect  the  EU  fishing  industry  that  is  to 
disappear soon under the current policy. 

ADAPI: With such a high demand in the EU market, the downsizing EU fleet will 
not be able to replace losses from an import ban. 

The effects of the possible introduction of import limitations or restrictions will also be 
highly  dependent  on  what  is  meant  by  "import".  For  example,  the  IUU  Regulation 
defines  importation  as  "the  introduction  of  fisheries  products  into  the  territory  of  the 
Community, including for transhipment purposes at ports in its territory". This definition 
encompasses  therefore  goods  that  are  landed  in  the  EU  in  transit  towards  other 
countries and has therefore a much wider coverage than a consideration of imports as 
goods having the EU market as immediate destination. 

Observations on the definition of imports: 

Target population: Member States: 

PT, DK, IE: Should include all products 

AT:  The  difference  is  substantial:  including  all  imports  may  entail  considerable 
administrative burden. 

NL:  Precise  details  of  the  scope  of  the  restrictions  are  to  be  discussed  at  a  later 
stage. 

EL: There is need of a harmonised definition of "imports". 

UK: The issue should be considered on a case-by-case basis. 

MT: Regulatory frameworks should be simple to implement and solution-oriented. 

DK: The IUU Regulation is not relevant in this case, and hence neither its definition 
of “imports”. 

Target population: stakeholders: 

Klondyke: Should include all products 

58 

 
 
 
 
 
EAPO, SPFA, KFO FEOPE, NFFO: In the case of mackerel apply the restriction to 
all mackerel products entering the EU, include if their destination is further afield, 
and having been originated in Iceland or Faroes, even if they have been rerouted via 
a third country. 

As  evoked  in  the  description  of  the  options,  any  trade  restriction,  including  by  "soft" 
approaches,  will  impose  a  certain  administrative  burden.  In  some  occasions  this 
additional  burden  may  be  alleviated  by  the  rational  use  of  existing  administrative 
mechanisms, but in any case the increase in costs may be substantial. You are requested 
to  synthetically  describe,  for  your  preferred  option,  how  you  perceive  this  additional 
administrative burden. 

Observations on the administrative burden: 

Target population: Member States: 

PT: Needs to be done despite the cost. 

SI: It is important not to add administrative burden. 

AT,  DK:  Most  likely  there  will  be  administrative  burden,  and  this  should  be 
carefully considered. 

IE: Existing structures and procedures for custom control are expected to be largely 
sufficient to implement the new legislation. 

NL,  UK:  Additional  administrative  cost  will  always  appear,  so  they  need  to  be 
limited. 

MT: Administrative workload seems higher for option 3. 

Target population: stakeholders: 

Klondyke,  EAPO,  SPFA,  ADAPI:  damage  if  not  action  taken  outweighs 
administration costs 

FEOPE: Additional burden can be compensated with simplification of unnecessary 
rules. 

ARVI:  The  administrative  burden  should  be  similar  to  what  is  found  following  a 
health alert or a safeguard clause 

NFFO. Not an issue: a blanket ban is easy to administrate. 

Final question: 

Please include below any other comments you may have on this proposal 

Target population: Member States: 

PT:  one  could  consider  cancellation  of  bilateral  agreements,  but  with  careful 
consideration of the effects on our own industry. 

DK: important that introduced measures are proportional. 

59 

 
IE: Ireland advocates strong trade measures including the possibility to cover all fish 
products.  

EL:  The  solution  should  be  effective  (not  simply  exhortations)  and  adopted  at  the 
international level under the EU leadership. 

EE: The IUU regulation should be applied, and not only in the case of mackerel, but 
also on blue whiting and redfish as far as Russia is concerned. 

LT: The scientific analysis should be of the higher scale and quality, and other third 
countries concerned should be consulted 

UK:  concerned  by  the  timing.  Measures  for  mackerel  should  be  specific,  targeted, 
easily  reversible.  The  general  instrument  should  not  allow  trade  measures  without 
proper consultation to Member States. On the consultation about options, there are 
not single responses covering all possible cases. Te interests of all sectors, not only 
the catching sector, should be considered. Sustainability should be at the forfront of 
fisheries and marine management. 

DE:  Admits  that  certain  behaviours  and  the  shortcomings  of  the  existing 
management frameworks makes it necessary to consider and examine certain trade 
measures. However, this does not predetermine the German position on any future 
specific proposal in this regard. 

DK: Important that introduced measures are proportional and fully consistent with 
international  law.  Such  measures  should  only  be  brought  into  effect  if  all  other 
appropriate measures have been exhausted. 

Target population: stakeholders: 

Klondyke: danger for the Commission to be seen as a weak institution. 

EAPO, SPFA, KFO: Do not leave the results of this consultation as an appeasement 
exercise. Keep Norway abreast of developments. 

KFO:  the  output  of  the  exercise  should  be  a  meaningful  short-term  solution  that 
utilises  all  existing  instruments,  followed  immediately  by  a  wider  scoped  legal 
instrument. 

ADAPI:  cancellation  of  existing  bilateral  agreements  can  be  a  possibility,  but 
careful attention should be paid to the possible damages to the EU industry. 

NFFO: the EU has left this issue to go on for far too long. Need to act immediately 
following  the  advice  prepared  for  the  North  Atlantic  Fishing  Company  Limited 
(Owen and Churchill, 2011). 

PELRAC: the issue is very technical and it is expected that the Commission could take 
note of the discussion held by the PELRAC Executive Committee on 12 April at Bilbao. 

Many thanks for your cooperation 

60 

 
 
 
Annex II 

The problems associated with the management of Blue whiting and 
mackerel in the North-east Atlantic 

1.  BLUE WHITING 

1.1.  Biology 

Blue whiting is widely distributed in the eastern part of the North Atlantic with the 
highest concentrations along the edge of the continental shelf between 300 and 600 
m.  Most  of  the  spawning  takes  place  along  the  shelf  edge  and  banks  west  of  the 
British  Isles.  Juveniles  are  abundant  in  many  areas,  with  the  main  nursery  area 
believed to be the Norwegian Sea. Recent work on stock identification suggests that 
there is likely to be more than one single stock in the Northeast Atlantic. 

1.2.  Fisheries 

This main fisheries on blue whiting take place in the Faroes region, west of Scotland 
and  around  the  Porcupine  Bank  (Figure  10.2.1).  The  fleet  targeting  blue  whiting 
consists  of  several  types  of  vessels  but  the  bulk  of  the  catch  is  caught  with  large 
pelagic trawlers. The main countries exploiting this fishery, together with the most 
recent  catch  for  which  comprehensive  and  detailed  date  are  available,  are  given 
below43. 

The Areas mentioned in the first column correspond to the ICES areas as shown in 
the map below: 

43   All tables and data shown in this annex are extracted from the ICES website, in particular from the 

advice given by ICES for the management of blue whiting in 2010: 
http://www.ices.dk/committe/acom/comwork/report/2010/2010/whb-comb.pdf 

61 

 
 
 
                                                 
 
It must be underlined that the interests of the EU do not appear fully represented in 
the catch table. In fact, most of the blue whiting that can be fished in EU waters and 
that, as an actual fact, belongs to the EU, is swapped with Norway in exchange for 
quotas of other valuable species to be fished by EU vessels in northern Norwegian 
waters (Arctic cod and haddock, mostly). As an example, swaps in 2009 and 2010 
were 63 000t and 59 900t respectively. Swaps are commonly done also with Faroe 
Islands (10 500t and 9 000t in the same years). 

Status of the stock 

According  to  the  most  recent  assessment  (see  footnote  41  in  this  annex),  the 
spawning stock biomass is below the reference points agreed (there is less spawners 
at sea than what had been agreed as desirable) and the fishing mortality is above the 
figure required to produce maximum sustainable yield. As a result, ICES forecasted 
for 2011 a  catch of 40 100t if the  management plan were to be adhered to, which 
implies a reduction of the catch of 93% from the level of 2010. 

Management regime 

62 

 
 
At  present  blue  whiting  is  managed  as  a  single  stock,  until  a  better  scientific 
background  allows  to  determine  the  most  appropriate  breakdown  of  management 
units.  Coastal  States  (the  EU,  Norway,  Faroe  Islands  and  Iceland)  fix  the 
management measures (essentially, catch limits and mesh sizes) applicable to their 
EEZ, and NEAFC sets out the regime applicable (catch limits) in the international 
zone  (identifiable  in  the  map  above),  called  the  Regulatory  Area.  In  setting  the 
management measures for their respective EEZs, Coastal States consult each other 
in  order  to  keep  exploitation  consistent  with  scientific  advice.  Coastal  States  also 
propose in NEAF a catch limitation in international waters that is consistent with the 
decisions taken for their own respective EEZs. In 2005, Coastal States approved a 
long-term  management  plan,  subsequently  amended  in  2008,  specifying  a 
mechanism to decide on catch limits and on the basis of the following44: 

"The  Parties  agree  to  implement  a  long-term  management  plan  for  the 
fisheries on the Blue Whiting stock, which is consistent with the precautionary 
approach,  aiming  at  ensuring  harvest  within  safe  biological  limits  and 
designed to provide for fisheries consistent with maximum  sustainable yield, 
in accordance with advice from ICES." 

As far as the NEAFC Regulatory Area is concerned, TACs are decided annually on 
that basis of proposals made by Coastal States. Most of the quotas are allocated to 
Russia. 

Until 2005, there was no agreement, either among Coastal States or within NEAFC, 
having a binding effect on any of the parties. The EU fixed TACs of which a part 
was allocated to Member States and quotas were left aside to swap with Norway and 
Faroe Islands, and the other Coastal States did similarly, but this was done with no 
overall context guaranteeing that catches were kept within sustainable levels. As a 
result,  the  sum  of  individual  TACs,  and  therefore  the  resulting  catches,  largely 
exceeded the catch recommended by scientists.  

Lack  of  agreement,  or  agreements  that  were  not  consistent  with  sustainability 
criteria, were always the result of excessive demands by some of the parties. These 
parties  were  opportunistically  willing  to  take  advantage  of  the  apparently  very 
healthy stock that continued to grow despite heavy fishing on it. The following table 
(ICES, same source as above) allows a better understanding of the situation: 

44   Extract from the agreed record of consultations between the European Community, the Faroe Islands, 

Iceland and Norway on the management of blue whiting in the North-east Atlantic for 2009.  

63 

 
                                                 
It  can  be  seen  that  catches  exceeded  consistently  the  advice  of  scientists  since  the 
mid nineties and especially at the beginning of the 21st century, as a consequence of 
the  lack  of  an  effective  agreement  within  Coastal  States  and  within  NEAFC. 
Furthermore, Coastal States chose to waive the management plan agreed in 2005 for 
2006, postponing the necessary catch reductions for subsequent years45: 

  " 

(1) 

(2) 

(3) 

The management targets are to maintain the Spawning Stock Biomass 
(SSB)  of  the  Blue  Whiting  stock  at  levels  above  1.5  million  tonnes 
(Blim)  and  the  fishing  mortality  rates  at  levels  of  no  more  than  0.32 
(Fpa) for appropriate age groups as defined by ICES. 

For 2006, the Parties agree to limit their fisheries of Blue Whiting to a 
total allowable catch of no more than 2 million tonnes. 

The Parties recognise that a total  outtake by the  Parties of  2 million 
tonnes in 2006 will result in a fishing mortality rate above the target 

45   Extract from the agreed record of consultations between the European Community, the Faroe Islands, 

Iceland and Norway on the management of blue whiting in the North-east Atlantic for 2006. 

64 

 
 
                                                 
level  as  defined  in  paragraph  2.  Until  the  fishing  mortality  has 
reached a level of no more than 0.32, the Parties agree to reduce their 
total  allowable  catch  of  Blue  Whiting  by  at  least  100,000  tonnes 
annually.."  

The planned reduction in catch for 2007 and 2008, was however insufficient to halt 
the  decline  of  the  stock,  and  the  multi-annual  management  plan  of  2005  was 
consequently revised in 2008. Although the new management plan was evaluated by 
ICES as consistent with the precautionary approach and MSY objectives, the fact is 
that the decision taken for 2009 was for a TAC well above the figure recommended 
by ICES to halt immediately the decline of the stock. 

As  a  result  of  this  sequence  of  decisions  (and  lack  of  decisions),  a  consistent  and 
effective  management  plan  was  agreed  and  properly  implemented  between  coastal 
States far too late to allow the stock to quickly recover: the poor state of the stock 
led to a situation whereby, for 2011, if the management plan were followed (which 
indeed was the decision), catches should be reduced by 93% from their level 2010.  

The  rules  adopted  by  NEAFC  for  the  regulatory  Area  in  2011  were  fortunately 
consistent with this very drastic reduction: a TAC of 5831t46, but Russia objected in 
31 December 2010 in accordance with Article 12 of the NEAFC Convention, on the 
basis  that  the  scientific  advice  available  contemplated  solutions  different  from  a 
drastic  catch  reduction.  Russia  adopted  an  autonomous  catch  limit  of  45  000t 
together with a delayed start of the fishery by 1 March 2011. 

The consequences of the loss of fishing opportunities on blue whiting are disastrous 
for  several  key  EU  sectors.  Specialised  fleets  will  have  stopped  or  drastically  cut 
back  their  activity,  with  important  social consequences  in  terms  of  job  losses,  and 
the traditional swaps with Norway had to be discontinued, which implies losses of 
fishing possibilities in Arctic waters.   

2.  MACKEREL

47 

Biology 

The combined northeast Atlantic mackerel is assessed as one stock but composed of three 
spawning  components.  Spawning  areas  of  mackerel  are  widely  spread,  and  only  the 
North  Sea  component  is  sufficiently  distinct  to  be  clearly  identified  as  a  separate 
spawning component. Mackerel from the Southern and Western areas migrate to feed in 
the Norwegian Sea and the North Sea during the second half of the year and then they 
mix  with  the  North  Sea  component  (overwintering).  In  recent  years  the  “feeding” 
migration  appears  to  take  place  more  to  the  western  approaches  of  the  North-east 

46   This TAC includes part of the catch that Coastal States can take in their EEZ. As a consequence, the  
additional catch that it represents is only 3192t (of which 2975t for Russia and 217 for Greenland). 

47   Most information and data shown in this annex are extracted from the ICES website, in particular from 
the advice given by ICES for the management of mackerel in 2010 and from the report of the ICES 
working group dealing with widely distributed stocks (WGWIDE). These reports can be found online: 
http://www.ices.dk/committe/acom/comwork/report/2010/2010/mac-nea.pdf 
http://www.ices.dk/workinggroups/ViewWorkingGroup.aspx?ID=273 

65 

 
                                                 
Atlantic, perhaps due to the effects of climate change, and this has made mackerel more 
available  to  fisheries  in  the  Icelandic  and  Faroese  EEZs  than  historically  was  the  case.  
Return to the spawning grounds start in the early spring and goes on until the end of the 
spawning season, which is variable for the different spawning components of the stock. 

State of the stock 

Following recent good recruitments (entry in the stock of newborn individuals each year) 
in 2002, 2005 and 2006, the stock increased sharply, reaching a peak of spawning stock 
biomass (the total weight of the individuals capable to reproduce at spawning time) close 
to  3  million  tonnes,  the  highest  on  record.  The  fishing  mortality,  which  reached  high 
levels  (F=0.44)  in  2002,  was  subsequently  reduced  and  reached  a  value  of  F=0.23  in 
2009. These figure compares with reference points established by ICES as follows: 

The current value of fishing mortality for mackerel is therefore very close to the one that 
would produce MSY in the long term (F=0.22), and the spawning stock biomass is well 
above the levels associated to MSY (SSBMSY=2.2 million t) or to a precautionary level 
(SSBpa=  2.3  million  t)48.  In  other  words,  the  stock  is  now  healthy  and  fished  at  a  rate 
which  may  lead  to  maximum  sustainable  yield.  This  is  the  desired  status  of  any  fish 
stock. 

Fisheries 

This species is distributed in the whole ICES area and currently supports one of the most 
valuable  European  fisheries  (with  2010  landings  estimated  at  930  000t).  Mackerel  is 
fished  by  a  variety  of  fleets  (ranging  from  open  boats  using  hand  lines  on  the  Iberian 
coasts  to  large  freezer  trawlers  and  Refrigerated  Sea  Water  (RSW)  vessels  in  the 
Northern  Area.  The  stock  is  historically  divided  into  three  components,  with  the  North 
Sea  component  considered  to  be  over  fished  since  the  late  1970s,  and  the  Western 
component contributing the vast majority of biomass and catch to the stock. 

The  patterns  of  NEA  mackerel  fishing  are  very  variable  throughout  the  wide  mackerel 
distribution  and  between  the  seasons  due  to  migration,  spawning,  feeding  and  over-
wintering.  The  largest  fisheries  have  been  on  the  over-wintering  and  early  spawning 
migration  phases.  The  geographic  area  of  these  fisheries  has  changed  over  time,  and  a 
precise description of their distribution is given in the report of WGWIDE (see footnote 

48   This level of SSB is defined as the one which guarantees with a high probability that the actual value 
of SSB, which is estimated with a certain inaccuracy, is not at the level of SSBlim, which is thought to 
lead to stock depletion. 

66 

 
 
                                                 
45  above).  The  important  feature  to  underline  is  that  in  recent  years  the  fishery  has 
shifted towards the north and to the north-west, perhaps due to oceanographic conditions 
determined by climate change (which led to the recent dispute with Iceland and the Faroe 
Islands).  

The  following  table  (ICES  report,  updated)  shows  the  recent  evolution  of  catches  by 
country: 

Economic importance of the fishery 

According to an assessment on the basis of 2009 values conducted by Unit MARE A3, in 
charge  of  the  structural  policy  and  economic  analysis,  about  800  EU  vessels  have  a 
strong  (>39%)  dependence  on  mackerel49.  Those  vessels  employ  more  than  1  630 
workers  generate  a  gross  value  added  of  above  45mio€.  Most  of  these  (in  numbers) 
belong to the small-scale fishing segment of Irish handliners. 

49   Dependence is measured as the ratio between the value of catch of mackerel and the value of the total 

catches for ach specific segment. 

67 

 
 
 
                                                 
Management 

Until  2007,  Norway  and  the  EU  were  the  major  if  not  the  only  shareholders  of  this 
fishery  and  have  responded  to  the  above-mentioned  international  requirements  by 
consulting each other and reaching a common understanding on the management of the 
stock. Since that year, until 2010, and responding to an increased availability of mackerel 
in  the  EEZ  of  the  Faroe  Islands,  this  country  also  participated  in  the  consultation  on 
mackerel  management.  The  part  of  the  fishery  conducted  in  international  waters  (the 
NEAFC  Regulatory  Area)  was  managed  since  2006  and  until  2009  by  the  North-East 
Atlantic Fisheries Organization (NEAFC). 

A  management  plan  was  agreed  by  Norway,  Faroe  Islands  and  EU  in  October  2008. 
ICES has evaluated the plan and concluded that it responds to the precautionary principle 
and is well designed to achieve maximum sustainable yield. 

Since 2008, and following a progressively increasing availability of the stock in the EEZ 
of Iceland, this country started to develop a fishery on mackerel which by 2009 reached 
levels  of  more  than  130  000  t.  This  figure  was  interpreted  by  the  other  coastal  States 
(Norway, the EU and Faroe islands) as excessive and incommensurate with what could 
be  taken  as  legitimate  rights  of  Iceland  with  regard  to  commonly  accepted  allocation 
criteria in international practices on sharing of fish resources. For comparison, the TACs 
agreed  by  the  other  three  coastal  States  were  as  follows:  EU:  367  000t,  Norway:  181 
000t, Faroe Islands: 17 000t. Both Norway and the EU invited Iceland to limit its catches 
to more reasonably levels, but with no avail.  

The attitude of Iceland, not willing to lower catches and the inability of Norway and the 
EU to force it to reduce its fishing level led the Faroe Islands to break the arrangement 
agreed with the EU and Norway for 2010 and set an autonomous quota of 80 000 t, 400% 
about the previously agreed figure of 17 000t.  

In  early  2010,  Norway  and  the  EU  invited  Iceland  and  Faroe  Islands  to  open 
consultations to try to establish a four-band Coastal States arrangement for the long-term 
management  of  the  stock.  Meetings  among  Norway,  the  EU,  Denmark,  on  behalf  of 
Faroe Islands, and Iceland took place on 15-18 March 2010 in Alesund (Norway), 28-30 
May  2010  in  London  (UK),  21-22  September  2010  in  Reykjavik  (Iceland),  12-14 
October 2010 in London (UK) and 26 November 2010 in Oslo (Norway).  

In spite of efforts to find a consensus among all participants, Iceland left the meeting 26 
November  2010  and  announced  a  unilateral  quota  of  146  818  tonnes  for  2011,  13% 
higher that the already perceived as excessive quota for 2010. On their side, the EU and 
Norway  agreed  on  their  respective  catch  limitations  and  on  the  exchange  of  fishing 
opportunities between them. According to this arrangement, the EU and Norway would 
set  for  2011  catch  limits  of  400  813t  and  183  069,  respectively.  The  EU,  after  having 
exchanged  some  fishing  possibilities  with  Norway  and  kept  aside  4  990t  for  future 
exchanges, adopted catch limits for the three EU management areas as follows50: 

50   For  a  complete  description  of  these  areas,  see  Council  Regulation  (EU)  No  57/2011  of  18  January 
2011  fixing  for  2011  the  fishing  opportunities  for  certain  fish  stocks  and  groups  of  fish  stocks, 
in  certain  non-EU  waters:  http://eur-
applicable 
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:024:0001:0125:EN:PDF 

in  EU  waters  and, 

for  EU  vessels, 

68 

 
                                                 
 
–  North Sea: 20 002t 
–  Western and northern waters: 258 684t 
–  Southern waters: 29 572t 
–  Norwegian waters: 11 240t 

As  far  as  international  waters  are  concerned,  NEAFC  adopted  in  November  2010  a 
recommendation to Contracting Parties inviting them to adopt catch limits and to notify 
them to the other Contracting Parties.  

During  the  winter  of  2010-2011,  several  encounters  took  place  separately  between  the 
EU and Iceland, Norway and Faroe Islands, together with announcements of the use of 
trade-related measures51. A resumption of Coastal States consultations took place in Oslo 
from 9 to 11 March 2011 but no arrangements were concluded, notably due to escalating 
demands  with  higher  expectations  from  the  Faroe  Islands  and  a  still  unacceptable 
approach from Iceland. 

The end result of the notifications to NEAFC was the following: 

–  EU (provisionally): 327 298t as part of the catch limits for the EU fishing zone, which 

also applies to the NEAFC Regulatory Area 

–  NO: the 182 827t agreed with the EU can also be taken in the NEAFC RA 

–  ICE: Of the 154 825t catch limit for the Icelandic EEZ, up to 20 000t can be taken in 

the NEAFC RA.  

–  FI: The 150 000t catch limit for the Faroese EEZ can be taken from the NEAFC RA. 

–  RF: A catch limit of 49 243t for the NEAFC RA. 

In all, total catch in 2011 may reach 937 950t in both the NEAFC RA and the EEZs of 
Coastal States, i.e. 45% higher than the catch forecasted by ICES if the management plan 
was  followed.  According  to  the  ICES  catch  forecast,  such  a  catch  would  result  in  a 
fishing  mortality  of  F=0.33.  This  figure  is  50%  higher  than  the  value  of  F=0.22  that, 
according to ICES, would lead to maximum sustainable yield. F=0.22 also represents the 
upper  limit  of  the  range  of  F-values  aimed  at  by  the  management  plan  designed  by 
Norway, the EU and Faroe Islands in 2008. 

Although  there  is  no  immediate  danger  of  collapse  of  the  stock,  reverting  in  2012  to 
catch rates consistent with the management plan may imply important losses of potential 
yield. These losses are to be estimated with some precision following the new assessment 
that will be conducted in September 2011. 

3.  OTHER POTENTIAL CASES 

Other  stocks  are  managed  in  the  complex  way  described  above  for  blue  whiting  and 
mackerel.  Essentially,  NEAFC  recommendations  only  apply  to  the  NEAFC  RA,  and 

51   In January 2011, the joint Committee of the European Economic Agreement was convened by the EU 
to announce its intentions to ban all landings of mackerel in the EU ports by Icelandic vessels on the 
basis  of  the  European  Economic  Agreement  (EEA),  which  foresees  such  type  of  measures  in  its 
Protocol No 9. 

69 

 
                                                 
management  rules  in  the  EEZs  of  Coastal  States  are  adopted  by  these,  preferably  in  a 
coordinated manner in the context of "consultations". Other stocks subject to this regime 
in the North east Atlantic are: redfish, Atlanto-Scandian herring and horse mackerel. Of 
these, only redfish present recurrent problems associated to disproportionate demands of 
coastal  States,  but  no  stock  is  free  from  the  danger  of  a  coastal  state  breaking  the 
equilibrium achieved in the multi-lateral consultations. 

It must be underlined that the results of these consultations are not legally binding: they 
cannot  be  called  "agreements"  with  the  meaning  implied  in  international  law.  They  are 
instead termed "arrangements" whereby the parties announce that they will recommend 
their  respective  fishing  authorities  the  adoption  of  one  or  another  measure.  These 
authorities  are  free  (although  bound  politically)  to  adopt  or  not  the  measures  discussed 
during the consultations. 

This is the reason why, in the case of mackerel, the decision of Faroe Islands to break the 
arrangements concluded in 2008 for the management plan could not be taken as a breach 
of international law that could led to apply the measures of the IUU Regulation. 

In these circumstances, if the EU honours its ambition to lead good fishery management 
practice  in  the  international  scene,  it  would  be  justified  to  provide  it  with  the  widest 
possible  range  of  instruments  to  induce  other  countries  to  do  the  right  management 
choices. 

70 

 
Annex III.  
Calculation of administrative burden 

 
 
 
 
72 

 
 
73 

 
 
 
Annex IV 

List of acronyms 

ACFA  
CFP 
CITES 

Advisory Committee for Fisheries and Aquaculture 
Common Fisheries Policy 
Convention on International Trade in Endangered Species of Wild Fauna 
and Flora 
European Economic Area 
Economic exclusive zone 
European Parliament 
European Union 
Fishing mortality 
Food and Agriculture Organization of the United Nations 
Faroe Islands 
Headed and gutted 
General Agreement on Tariffs and Trade 
Impact Assessment 
Impact Assessment Steering Group 
Iceland 
International Tribunal for the Law of the Sea 
International Council for the Exploration of the Sea 
Illegal, Unreported and Unregulated fisheries 
Long-Distance Fleet RAC 
Marine Stewardship Council 
Marine Strategy Framework Directive 
Maximum sustainable yield 
North-East Atlantic Fisheries Commission 

EEA 
EEZ 
EP 
EU 
F 
FAO 
FI 
H/G 
GATT  
IA 
IASG   
ICE 
ITLOS  
ICES 
IUU 
LDRAC 
MSC 
MSFD  
MSY 
NEAFC 
NEAFC RA  NEAFC Regulatory Area 
NGO 
NO 
PELRAC 
RAC 
RFMO  
SSB 
STECF 
TAC 
TFEU   
UN 
UNCLOS 
WGWIDE  Working Group on Widely Distributed Stocks 

Non-Governmental Organization 
Norway 
Pelagic RAC 
Regional Advisory Committee 
Regional Fisheries Management Organization 
Spawning Stock Biomass 
Scientific, Technical and Economic Committee for Fisheries 
Total allowable catch 
Treaty on the Functioning of the European Union 
United Nations 
United Nations Convention on the Law of the Sea