Explanatory Memorandum to COM(2007)605 - Protection of vulnerable marine ecosystems in the high seas from the adverse impacts of bottom fishing gears

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- Grounds for and objectives of the proposal

The proposed Council Regulation implements the recommendations issued by the General Assembly of the United Nations (Resolution 61/105 of 8 December 2006) on measures to eliminate destructive fishing practices that threaten vulnerable marine ecosystems in the high seas. The proposal applies to EU vessels operating in the high seas in areas that are not subject to regulation by a Regional Fisheries Management Organisation (RFMO) and thus require unilateral flag State regulation.

- General context

Certain marine ecosystems such as seamounts, deep water corals and hydrothermal vents are threatened by fishing practices that can have destructive effects on the physical integrity of the habitat. Bottom fishing gears, when deployed in areas containing these ecosystems, have been documented to destroy deep water corals and sponges, and with them the complex ecosystem they host and support. These habitats have not been fully explored and described yet, but there is abundant scientific evidence suggesting their high value as biodiversity hotspots.

The UN General Assembly has been discussing the problems posed by high seas destructive fishing practices since 2004. The problem has therefore become a sensitive issue in international fisheries governance. It is the subject of particular concern in relation to areas of the high seas for which a regional fisheries management organisation has not been established to regulate fishing and its environmental impacts. The EU has been a very active participant in this debate and was instrumental in defining the package of recommendations on which the general Assembly ultimately reached consensus.

The UN debate was marked by proposal made by certain UN Members to adopt a general moratorium of bottom trawling in the high seas, whereas other countries were initially reluctant to any collective action determined at global level. The EU promoted, successfully, an alternative proposal based on stringent regulation of bottom fishing activities that should inform the conservation and management measures adopted by RFMOs, and should also determine the discipline that flag States must apply in respect of their vessels when these operate in areas of the high seas not regulated by an RFMO. This approach is based on the requirement of an assessment of environmental impacts as a condition for authorising fishing activities, complemented by safeguard rules, increased efforts to identify and describe vulnerable marine ecosystems through scientific research and surveys, and the continued adoption of area-based measures and closures to protect these ecosystems.

The EU counts a sizeable presence of bottom trawlers in areas where there is no established RFMO to regulate bottom fishing, notably the Southwest Atlantic. The EU must respond to the UNGA calls by adopting regulations to prevent the risks that bottom fishing activities could destroy vulnerable marine ecosystems located in these areas.

Resolution 61/105 called on States to adopt measures such as those provided for in this proposal by December 2008 and the General Assembly will review the response given to its calls in 2009 with a view to further recommendations.

- Existing provisions in the area of the proposal

The Community has adopted measures to protect deep sea ecosystems in EU waters, has tabled proposals to the same end in relevant Regional Fisheries Management Organisations - NEAFC and NAFO for the North Atlantic; SEAFO for the Southeast Atlantic; CCAMLR for the Antarctic; GFCM for the Mediterranean - and has transposed the measures so adopted into Community Law. The present proposal completes the coverage of the EU action by addressing activities taking place outside EU waters and in areas not placed under the responsibility of an RFMO.

- Consistency with the other policies and objectives of the Union

This proposal integrates the Union's Environmental and Common Fisheries Policies by establishing the rules whereby the adverse effects of certain fishing practices on the marine environment can be prevented and eliminated.



- Consultation of interested parties

Consultation methods, main sectors targeted and general profile of respondents

The views of stakeholders and of representatives of the civil society have been received throughout the two-year process during which the issue was discussed in the context of the United Nations. In particular, the Commission made publicly available its report to the UN Secretary General submitted in April 2006 and a Commission Staff Working Document outlining the intended position of the EU in the General Assembly Consultations in September 2006. Stakeholders provided views to the Commission on both documents, which were also approved by Member States prior to submission and publication.


Summary of responses and how they have been taken into account

The Commission received essentially two sets of opposing views: on the one hand, environmental non-governmental organisations (ENGOs) pleaded with the EU to support a blanket moratorium of bottom trawling in the high seas as the only means to ensure effectively the preservation of vulnerable deep sea ecosystems. On the other hand, the fishing sector stated its opposition to the blanket ban approach.

The Commission proposed a negotiating stance that sought a balanced solution that would also seek the objective of gathering international consensus. The Commission shared the views of ENGOs regarding the gravity of the threat and the need for decisive action, but agreed with the fishing sector that stringent regulation can be more effective than a high seas fishing ban, notably where such a ban would not be the subject of consensus in the United Nations. In such case, there would be no guarantees of a level playing field in the high seas, with certain flag States complying with the moratorium and others not. Instead, the package agreed by the General Assembly on a consensus basis provides clear guidance to all States and RFMOs on how to regulate bottom fishing activities by introducing an assessment of potential environmental impacts based on the precautionary approach and make the results of this assessment determinant on whether the activities may or not be authorised. These recommendations establish a basis for decisive action not only in the high seas, but also in RFMOs and even in areas within national jurisdiction, and should therefore have the effect of bringing about broader environmental benefits in all areas.

- Collection and use of expertise

Scientific/expertise domains concerned

Deep sea ecology, fishery data.


Methodology used

Recourse to published scientific literature on deep sea ecosystems - particularly cold water corals - and the effect of fishing and other human activities thereon. On-going work on the subject by the International Council on the Exploration of the Sea. In-house studies regarding the activities of the fleets in areas of the high seas not regulated by an RFMO. Research projects under the 6th Framework Programme (in particular HERMES, including an ad-hoc technical meeting with experts involved in this project).


Main organisations/experts consulted

ICES, HERMES, UNEP publications

Summary of advice received and used

The existence of potentially serious risks with irreversible consequences has been mentioned. There is a broad consensus on the existence of such risks.

The protection of vulnerable marine ecosystems such as reefs, deep water corals, seamounts, hydrothermal vents, deep water sponges, against impacts from bottom fishing gears requires limiting or excluding the use of such gears in areas where these ecosystems are found. Although impacts are variable according to different gears, these ecosystems are extremely fragile and should be protected by means of area closures. It was also advised, however, that further research to fully document fishing impacts would be necessary, although action should be taken urgently on a precautionary basis.


Means used to make the expert advice publicly available

The Commission Staff Working Document published by the Commission in September 2006 stated the conclusions of the Commission's analysis based on advice and views received.

- Impact assessment

Option 1: no specific action to transpose Resolution 61/105, as this is a non-binding act. This option, however, does not mean the EU would disregard these recommendations. They would inform its position in international fisheries cooperation. As for EU vessels operating in non-RFMO areas, the issue would be left to individual EU Member State responsibility. This option was assessed as having negative impacts on the EU's international credibility and ability to play a leading role in enhancing international fisheries governance. It also implies abandonment of responsibilities falling upon the EU under the Common Fisheries Policy.

Option 2: going farther than the recommendations made by the General Assembly and implement a prohibition applicable to EU vessels unilaterally. This option was assessed as having significant economic and social negative impacts on the EU fleets. It was also assessed that this option would demonstrate a strong commitment by the EU to protect vulnerable marine ecosystems. The effectiveness of this effort, however, would not be guaranteed if other flag States should continue to authorise fishing and thus would make it difficult to justify the constraints imposed on the EU fleet.

Option 3: Clear policy definition and stringent regulation implementing the General Assembly recommendations. This option entails taking specific action to implement the Resolution by adopting a) a policy document that commits the Commission and the EU on a clear strategy in international fora, indicating objectives and intended actions; and b) a regulation to implement the measures recommended by the General Assembly in respect of EU vessels operating in non-RFMO areas, namely the present proposal. This option was assessed to give visibility to the EU's commitment to the attainment of the objective and reinforce the EU's credibility and ability to lead in the international scene. It will entail impacts on national authorities responsible for implementing these rules, particularly the prior assessment procedure, but will also allow the continuation of fishing activities provided they are environmentally sound. As a result, the system is geared to ensure the protection of vulnerable marine ecosystems.



- Summary of the proposed action

The Proposal subjects fishing activities with bottom gears that are carried out in areas not regulated by an RFMO to the requirement of a fishing permit in accordance with Regulation (EC) No 1627/94. The issuance of this permit is subject to the condition that the issuing Member State authority carries out an assessment of potential impacts of the activities on vulnerable marine ecosystems and determines there are no risks of significant adverse impacts. This assessment is based on the submission of fishing plans by the operators and the examination of the plans by the issuing authority in light of available scientific information and advice on the occurrence (or likelihood thereof) of the relevant ecosystems in the foreseen area of operations, to verify that the intended activities remain clear of vulnerable sites.

The permit's validity is then subject to the condition that fishing activities respect the fishing plans, providing for control means to monitor such compliance (includes stringent vessel monitoring by satellite and on-board observers) and fixing legal consequences in case of non-compliance (includes falling under the Common Fisheries Policy regime for 'serious infringements'). The proposal further establishes the obligation to withdraw from sites where vulnerable ecosystems are encountered and a precautionary limit for the depth at which bottom gears can be deployed (maximum 1 000 m) to ensure a precautionary depth-based protected area in all fishing grounds. Finally, the proposal establishes reporting obligations falling on Member States and a review clause two years after entry into force.

- Legal basis

Article 37 of the EC Treaty

- Subsidiarity principle

The proposal falls under the exclusive competence of the Community. The subsidiarity principle therefore does not apply.

- Proportionality principle

The proposal complies with the proportionality principle for the following reasons.

The proposal relies on an established regime, namely that contained in Regulation (EC) No 1627/94 whereby Member States are responsible for the issuance of special fishing permits, while ensuring a Community-wide coherence and transparency in the application of the system. It does not create a new authorisation regime but relies on the permit as the vehicle for the compliance with requirements on how fishing operations should be conducted to prevent the destruction of vulnerable marine ecosystems.

Currently, Member States are not required, under CFP rules, to apply a prior assessment of environmental impacts as a condition for authorising any individual fishing activities. Implementing this system, as called for by the General Assembly, will therefore entail an increase in workload for these authorities, even if the fisheries concerned are relatively limited. The proposal, however, provides for criteria for this assessment, notably the use of scientific advice, that Member States have at their disposal and will not normally require an overhaul of the current authorisation system. It will merely imply a more documented authorisation procedure. These are the minimum requirements that the system must implement to respond effectively to the approach agreed by the General Assembly.

- Choice of instruments

Proposed instruments: regulation.

Other means would not be adequate for the following reason(s).

The Common Fisheries Policy is an area of exclusive competence by the Community. The rules adopted at Community level should be uniform and binding in order to avoid the coexistence of different standards between Member States. It is therefore justified that the measures are contained in a Proposal for a Regulation.






- Review/revision/sunset clause

The proposal includes a review clause.