Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 as regards the targets for fixing fishing opportunities
Date: 2023-12-06
Institutions: Directorate-General for Maritime Affairs and Fisheries, European Commission
Subjects: Atlantic Ocean, authorised catch, catch by species, catch quota, conservation of fish stocks, deep-sea fishing, fishing area, fishing controls, fishing rights, sea fish

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   EUROPEAN COMMISSION  Brussels, 6.12.2023  COM(2023) 771 final 2023/0449 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 as regards the targets for fixing fishing opportunities  
 
EXPLANATORY MEMORANDUM 

1. 

• 

CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  European  Parliament  and  the  Council  adopted  Regulations  (EU)  2016/11391,  (EU) 
2018/9732 and (EU) 2019/4723 establishing multiannual plans for certain stocks fished in the 
Baltic Sea, the North Sea and the Western Waters, and for fisheries exploiting those stocks 
(‘the  MAPs’).  The  MAPs  are  one  of  the  main  instruments  to  achieve  the  objectives  of  the 
common fisheries policy (‘CFP’).  

In  accordance  with  the  principles,  objectives  and  content  set  out  in  Articles  9  and  10  of 
Regulation  (EU)  No  1380/2013  (‘the  CFP  Regulation’)4,  the  MAPs  set  out  targets  and 
measures  for  the  long-term  management  of  certain  stocks  and  fisheries  at  sea  basin  level, 
including safeguards and remedial actions where needed. In addition, the MAPs provide for 
flexibility  by  allowing  the  fixing  of  fishing  opportunities  within  the  ‘range  of  FMSY’,  as 
defined in  Article 2(2) of the Baltic  and Western Waters MAPs, and in  Article 2(1) of the 
North Sea MAP.  

The MAPs contain an identical provision in Article 4(6) of the Baltic and North Sea MAPs 
and Article 4(7) of the Western Waters MAP, which provides that ‘fishing opportunities shall 
in any event be fixed in such a way as to ensure that there is less than a 5 % probability of the 
spawning stock biomass falling below Blim’ (‘the 5% rule’)5.  

However,  under  certain  circumstances  relating  to  the  status  of  a  given  fish  stock  and  the 
short-term forecast for its biomass development, the application of the 5% rule may result in 
a situation that would be inconsistent with the other rules of the MAPs governing the fixing 
of fishing opportunities and have potentially severe socioeconomic implications. 

On  the  one  hand,  the  5%  rule  may  mean  that  fishing  opportunities  cannot  be  set  and  the 
targeted fishery must be suspended. On the other hand, the safeguard provisions in the MAPs 
require the adoption of remedial measures to bring the stock above Btrigger, based on a case-
by-case  assessment  on  the  appropriateness  for  choosing  such  measure,  in  accordance  with 
the  criteria  set  out  in  the  MAPs.  Moreover,  the  MAPs  refer  to  the  possibility,  and  not  the 

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Regulation (EU) 2016/1139 of the European Parliament and of the Council of 6 July 2016 establishing 
a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea and the fisheries exploiting 
those stocks, amending Council Regulation (EC) No 2187/2005 and repealing Council Regulation (EC) 
No 1098/2007 (OJ L 191, 15.7.2016, p. 1). 
Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a 
multiannual  plan  for  demersal  stocks  in  the  North  Sea  and  the  fisheries  exploiting  those  stocks, 
specifying  details  of  the  implementation  of  the  landing  obligation  in  the  North  Sea  and  repealing 
Council Regulations (EC) No 676/2007 and (EC) No 1342/2008 (OJ L 179, 16.7.2018, p. 1). 
Regulation  (EU)  2019/472  of  the  European  Parliament  and  of  the  Council  of  19  March  2019 
establishing  a  multiannual  plan  for  stocks  fished  in  the  Western  Waters  and  adjacent  waters,  and  for 
fisheries  exploiting  those  stocks,  amending  Regulations  (EU)  2016/1139  and  (EU)  2018/973,  and 
repealing  Council  Regulations  (EC)  No  811/2004,  (EC)  No  2166/2005,  (EC)  No  388/2006,  (EC)  No 
509/2007 and (EC) No 1300/2008 (OJ L 83, 25.3.2019, p. 1). 
Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on 
the  Common  Fisheries  Policy,  amending  Council  Regulations  (EC)  No  1954/2003  and  (EC)  No 
1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council 
Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22). 
Article  2(7)  of  the  North  Sea  MAP  and  Article  2(8)  of  the  Baltic  and  Western  Waters  MAPs  define 
‘Blim’  as  ‘the  spawning  stock  biomass  reference  point  provided  for  in  the  best  available  scientific 
advice, below which there may be reduced reproductive capacity’. 

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obligation,  to  suspend  the  targeted  fishery,  provided  that  such  a  measure  is  considered 
appropriate in accordance with the criteria set out in the MAPs.   

For those reasons, it is therefore appropriate to delete the 5% rule in the MAPs.  

• 

Consistency with existing policy provisions in the policy area 

The proposal is consistent with the CFP Regulation and will ensure the internal consistency of 
the rules of the MAPs governing the fixing of yearly fishing opportunities by the Council.  

• 

Consistency with other Union policies 

The proposal is consistent with other Union policies, in particular with the policies in the field 
of the environment. 

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

The proposal amends the MAPs and is therefore based on the same legal basis, namely Article 
43(2) of the Treaty on the Functioning of the European Union (TFEU). 

• 

Subsidiarity (for non-exclusive competence)  

The  proposal  falls  under  the  Union’s  exclusive  competence  as  referred  to  in  Article  3(1)(d) 
TFEU. Therefore, the subsidiarity principle does not apply. 

• 

Proportionality 

The objective of this proposal is to ensure the internal consistency of the rules of the MAPs 
governing  the  fixing  of  yearly  fishing  opportunities  by  the  Council.  The  proposed 
modification is necessary to do so and the most suitable measure to achieve this objective.  

• 

Choice of the instrument 

Given that the proposal amends existing regulations, the most appropriate legal instrument is 
a regulation. 

3. 

• 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

Ex-post evaluations/fitness checks of existing legislation 

Not applicable.  

• 

Stakeholder consultations 

In  2023,  the  Commission  discussed  the  5%  rule  with  stakeholders,  notably  the  Baltic  Sea 
Advisory  Council  and  the  regional  CFP  group  of  EU  Member  States  of  the  Baltic  Sea 
(‘BaltFish’).  The  majority  of  stakeholders  expressed  their  deep  concerns  about  the 
consistency of the 5% rule with the other rules of the MAPs governing the fixing of fishing 
opportunities and its potentially severe socio-economic implications.   

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• 

Collection and use of expertise 

Each  year,  the  Union  seeks  scientific  advice  on  the  state  of  important  fish  stocks  from  the 
International Council for the Exploration of the Sea (‘ICES’)6. ICES scientific advice is based 
on an internal advice framework developed by its expert groups and decision-making bodies, 
which incorporates a precautionary approach based on a risk of no more than 5% in the long 
7. Moreover, ICES scientific advice is issued in line with the 
term that a stock falls below Blim
framework partnership agreement with the Commission.   

• 

Impact assessment 

The objective of this proposal is to ensure the internal consistency of the rules of the MAPs 
governing the fixing of yearly fishing opportunities by the Council. The proposed amendment 
of  the  MAPs  is  necessary  to  do  so  and  the  most  suitable  measure  to  achieve  this  objective. 
This is a targeted and limited amendment of a specific provisions of the MAPs, which aims to 
address an internal inconsistency in those regulations. Given that there are no policy options, 
no impact assessment or public consultation is necessary.  

• 

Regulatory fitness and simplification 

The proposal contains no new rules or new administrative procedures proposed for (Union or 
national) public authorities that could increase administrative burden. It also has no link with 
regulatory burdens, micro-enterprises, SMEs or digital matters.  

• 

Fundamental rights 

The proposal does not have any foreseeable consequences for the protection of fundamental 
rights. 

4. 

BUDGETARY IMPLICATIONS 

The proposal has no implications for the Union budget. 

5. 

• 

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

Not applicable.  

• 

Detailed explanation of the specific provisions of the proposal 

See Section 1 ‘context of the proposal’ above.  

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http://www.ices.dk/advice/Pages/Latest-Advice.aspx 
ICES Advice 2015, Book 6, p.4  “EU request to ICES to provide FMSY ranges for selected North Sea 
https://ices-
and 
library.figshare.com/Articles/report/EU_request_to_ICES_to_provide_FMSY_ranges_for_selected_No
rth_Sea_and_Baltic_Sea_stocks/18629411/1 

stock”, 

Baltic 

Sea 

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2023/0449 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 as regards the 
targets for fixing fishing opportunities 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national parliaments, 
Having regard to the opinion of the European Economic and Social Committee8, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

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One of the objectives of the common fisheries policy (CFP), as set out in Regulation 
(EU) No 1380/2013 of the European Parliament and of the Council9, is to ensure that 
exploitation  of  marine  biological  resources  restores  and  maintains  populations  of 
harvested  species  above  levels  which  can  produce  the  maximum  sustainable  yield 
(MSY). According to Regulation (EU) No 1380/2013, the MSY exploitation rate had 
to be achieved by 2015 where possible and, on a progressive, incremental basis at the 
latest by 2020 for all stocks. 
To achieve the objectives of the CFP, Regulations (EU) 2016/113910, (EU) 2018/97311 
and  (EU)  2019/47212  of  the  European  Parliament  and  of  the  Council  established 

OJ C , , p. . 
Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on 
the  Common  Fisheries  Policy,  amending  Council  Regulations  (EC)  No  1954/2003  and  (EC)  No 
1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council 
Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22,  http://data.europa.eu/eli/reg/2013/1380/2023-01-
01). 
Regulation (EU) 2016/1139 of the European Parliament and of the Council of 6 July 2016 establishing 
a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea and the fisheries exploiting 
those stocks, amending Council Regulation (EC) No 2187/2005 and repealing Council Regulation (EC) 
No 1098/2007 (OJ L 191, 15.7.2016, p. 1, http://data.europa.eu/eli/reg/2016/1139/2020-12-01). 
Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a 
multiannual  plan  for  demersal  stocks  in  the  North  Sea  and  the  fisheries  exploiting  those  stocks, 
specifying  details  of  the  implementation  of  the  landing  obligation  in  the  North  Sea  and  repealing 
Council  Regulations  (EC)  No  676/2007  and  (EC)  No  1342/2008  (OJ  L  179,  16.7.2018,  p.  1, 
http://data.europa.eu/eli/reg/2018/973/2019-08-14). 
Regulation  (EU)  2019/472  of  the  European  Parliament  and  of  the  Council  of  19  March  2019 
establishing  a  multiannual  plan  for  stocks  fished  in  the  Western  Waters  and  adjacent  waters,  and  for 
fisheries  exploiting  those  stocks,  amending  Regulations  (EU)  2016/1139  and  (EU)  2018/973,  and 
repealing  Council  Regulations  (EC)  No  811/2004,  (EC)  No  2166/2005,  (EC)  No  388/2006,  (EC)  No 
509/2007 
1, 
1300/2008 
(EC) 
http://data.europa.eu/eli/reg/2019/472/2019-08-14). 

25.3.2019, 

and 

(OJ 

83, 

No 

p. 

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(3) 

(4) 

(5) 

(6) 

(7) 

multiannual  plans  for  the  long-term  management  of  certain  stocks  in  the  Baltic  Sea, 
the  North  Sea,  and  the  Western  Waters,  for  fisheries  exploiting  those  stocks  and, 
where those stocks extend beyond the Western Waters, in their adjacent waters (‘the 
MAPs’). 

In accordance with Article 10(1)(c) of Regulation (EU) No 1380/2013, the MAPs set 
quantifiable targets in the form of target fishing mortality rates. These rates provide for 
flexibility by establishing a range of values (FMSY ranges with upper and lower limits) 
consistent with reaching and maintaining MSY for the target stocks.  

Fishing  opportunities  are  set  within  those  FMSY  ranges.  Those  ranges  are  based  on 
scientific advice from the International Council for the Exploration of the Sea (‘ICES’) 
or a similar independent scientific body recognised at Union or international level, and 
determined in such a way that all levels of fishing mortality within the range result in 
MSY in the long term without significantly affecting the reproduction process for the 
stock in question. 

In accordance with Articles 2(2) of Regulations (EU) 2016/1139 and (EU) 2019/472, 
and Article 2(1) of Regulation (EU) 2018/973, the FMSY range is calculated to deliver 
no  more  than  a  5  %  reduction  in  long-term  yield  compared  to  the  MSY  and  it  is 
capped so that the probability of the stock falling below Blim is no more than 5%. 

Article  4(6)  of  Regulations  (EU)  2016/1139  and  (EU)  2018/973,  as  well  as  Article 
4(7) of Regulation (EU) 2019/472, further provide that ‘fishing opportunities shall in 
any event be fixed in such a way as to ensure that there is less than a 5 % probability 
of the spawning stock biomass falling below Blim’ (‘the 5% rule’).  

Under certain circumstances relating to the status of a given fish stock and the short-
term forecast for its biomass development, the application of the 5% rule may result in 
a situation that would be inconsistent with the other rules of the MAPs governing the 
fixing  of  fishing  opportunities  and  have  potentially  severe  socio-economic 
implications. 

(8)  When  scientific  advice  indicates  that  for  a  given  year  the  spawning  biomass  of  the 
targeted  stock  or,  in  the  case  of  Norway  lobster  stocks,  the  abundance  of  specific 
stocks,  are  below  MSY  Btrigger,  the  safeguard  rules  set  out  in  Regulations  (EU) 
2016/1139,  (EU)  2018/973  and  (EU)  2019/472  provide  that  all  appropriate  remedial 
measures shall be adopted to ensure rapid return of the stock concerned to levels above 
those  capable  of  producing  MSY.  In  particular,  fishing  opportunities  shall  be  set  at 
levels  consistent  with  a  fishing  mortality  that  is  reduced  below  the  upper  range  of 
FMSY, taking into account the decrease in biomass.  

(9) 

The safeguard rules in the MAPs also provide that further remedial measures are to be 
adopted  where  the  spawning  stock  biomass  of  the  targeted  stock  or,  in  the  case  of 
Norway  lobster  stocks,  the  abundance  of  specific  stocks,  is  below  Blim,  in  order  to 
ensure rapid return of the stock concerned to levels above those capable of producing 
MSY.  In this  context, Article 5(2) of Regulation (EU) 2016/1139,  as well  as  Article 
7(2) of Regulations (EU) 2018/972 and (EU) 2019/472), refer specifically not only to 
the suspension of the targeted fishery, but also to other possible measures such as the 
adequate reduction of fishing opportunities, the adoption of emergency measures or of 
technical measures.  

(10)  The MAPs further provide that the choice of measures in both cases is to be made in 
accordance with  the nature, seriousness,  duration and repetition of the situation. The 
MAPs therefore require the suspension of the targeted fishery only if, according to the 

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criteria in the MAPs, it is considered to be the appropriate remedial measure required 
to  ensure  the  rapid  return  of  the  stock  to  levels  above  those  capable  of  producing 
MSY. 

(11)  Therefore, on the one hand, the 5% rule may mean that fishing opportunities cannot be 
set  and  the  targeted  fishery  must  be  suspended.  On  the  other  hand,  the  safeguard 
provisions in the MAPs require the adoption of remedial measures to bring the stock 
above Btrigger, based on a case-by-case assessment on the appropriateness for choosing 
such  measure,  in  accordance  with  the  criteria  set  out  in  the  MAPs.  Moreover,  the 
MAPs refer to the possibility, and not the obligation, to suspend the targeted fishery, 
provided that such a measure is considered appropriate in accordance with the criteria 
set out in the MAPs. 

(12) 

It  is  therefore  necessary  to  address  this  inconsistency  in  the  legal  framework  by 
deleting  the  provisions  in  Regulations  (EU)  2016/1139,  (EU)  2018/973  and  (EU) 
2019/472 providing that fishing opportunities shall in any event be fixed in such a way 
as to ensure that the probability of the stock falling below Blim is no more than 5%. 

(13)  Regulations (EU) 2016/1139, (EU) 2018/973 and (EU) 2019/472 should therefore be 

amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Article 1 
Amendment to Regulation (EU) 2016/1139 

Article 4(6) of Regulation (EU) 2016/1139 is deleted. 

Article 2 
Amendment to Regulation (EU) 2018/973 

Article 4(6) of Regulation (EU) 2018/973 is deleted. 

Article 3 
Amendment to Regulation (EU) 2019/472 

Article 4(7) of Regulation 2019/472 is deleted. 

This  Regulation  shall  enter  into  force  three  days  following  that  of  its  publication  in  the 
Official Journal of the European Union. 

Article 4 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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