Legal requirements to protect bluefin tuna under EU law: implications for ICCAT negotiations

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1 Legal requirements to protect bluefin tuna under EU law: implications for ICCAT negotiations Legislative briefing October 2010 Summary The EU is legally obliged under provisions of European and international law to protect bluefin tuna. This briefing sets out the most important legal obligations in relation to bluefin tuna arising out of the EU Treaties, secondary European legislation and international law and applies them to the scientific evidence included in the 2010 report of the Standing Committee on Research and Statistics (SCRS). It reaches clear conclusions, in light of current scientific evidence, about the obligations the EU is under to protect bluefin tuna and provides recommendations about the steps the EU, and in particular the European Commission, should take to protect bluefin tuna at the meeting of the International Commission for the Conservation of Atlantic Tunas (ICCAT) in November Summary of recommendations: Having considered the scientific evidence and relevant international and EU law it is clear that the EU is obliged: to apply the precautionary approach and take preventive action (applying the EU principle of integration) as regards EU bluefin tuna fisheries: because of the uncertain and critical state of Eastern Atlantic and Mediterranean bluefin tuna stocks, this means a Total Allowable Catch (TAC) of zero needs to be set for (this is explained further in section 2); to set zero TACs in in order to be able to comply with obligations contained in the Marine Strategy Framework Directive 1 for the bluefin tuna stock to be at sustainable levels (specifically at the sustainable stock biomass associated with maximum sustainable yield (SSBMSY)) by 2020 at the latest, based on figures in the SCRS 2010 report (legal obligations in relation to maximum sustainable yield (MSY) are set out in section 3); to deduct a total of 5,192.60t (or, if the provisions of the Control Regulation 2 can be applied, of 15,577.80t) from France s future quota allocations to penalise France s overfishing in 2007 in accordance with the rules on the payback of quota and therefore (i) not to allocate any bluefin tuna quota to France in 2011 and (ii) to impose quota reductions on France every year until the total due has been repaid in 1 Directive 2008/56/EU 2 Regulation EC/1224/2009

2 full (based on the legal obligations set out in section 4); to support the creation of sanctuaries corresponding to the bluefin tuna spawning grounds based on ICCAT commitments and legal obligations arising out of the Mediterranean Regulation 3 (set out in section 5); and in the meantime, before the stock spawning biomass can recover to MSY levels, to take action in cooperation with ICCAT to protect bluefin tuna at a favourable state of conservation in accordance with obligations contained in the Barcelona Convention 4 (the EU s legal obligations in this regard are set out in section 6). 3 Regulation EC/1967/ Convention for the Protection of the Mediterranean Sea Against Pollution 2

3 1. The EU, ICCAT and other international law Bluefin tuna fisheries are a matter of both international law (mainly under the International Convention for the Conservation of Atlantic Tunas the ICCAT Convention, which entered into force in December ), and EU law (see below). It is therefore important to set out the most important legal obligations regarding bluefin tuna both under EU and international law in order to be able to establish the actions that the EU is obliged to take in relation to bluefin tuna protection and bluefin tuna fisheries. It is the aim of the ICCAT Convention to enable its Contracting Parties to cooperate in maintaining the populations of these fishes at levels which will permit the maximum sustainable catch for food and other purposes 6. In addition, it is the duty of the International Commission for the Conservation of Atlantic Tunas (ICCAT) (which is established under the ICCAT Convention) to maintain the populations of tuna at levels which will permit the maximum sustainable catch (Article 8(1)(a)). As the EU itself is a Contracting Party to ICCAT and European Member States are not, (except, in certain cases, in relation to their overseas territories 7 ) the EU is represented by the European Commission in ICCAT negotiations (the Commission being the body responsible for representing the EU externally under Article 16, TEU). This means that the European Commission must comply with the aims of ICCAT set out above. In addition, when engaging in ICCAT negotiations, the European Commission is also required by EU law to ensure the application of the Treaties, and measures adopted by the institutions pursuant to them (Article 17(1), TEU). Importantly, this last requirement means the European Commission is obliged to take into account not only all the provisions of the Treaties that could apply in the context of ICCAT negotiations (for example provisions relating to fisheries and to the environment), but also requirements contained in secondary EU legislation and in other relevant international conventions to which the EU is a party (and which are therefore an integral part of EU law see Note 2 below). This briefing discusses the relevant legal requirements in the European Treaties, secondary European legislation and international law and applies them, in conjunction with relevant scientific evidence, to make recommendations in relation to the EU s duties in the forthcoming ICCAT negotiations. 5 The EU ratified the Convention in 1986 by Council Decision 86/238/EEC. 6 Preamble to the International Convention on the Conservation of Atlantic Tunas. 7 France and the United Kingdom are signatories to ICCAT but represent only their overseas territories in ICCAT negotiations. 3

4 Notes: 1. This briefing does not specifically consider ICCAT recommendations made in previous years or the relevant EU legislation implementing them (for example ICCAT recommendations 06-07, and and Commission Decisions 2009/296/EC and 2010/210/EU). The reasons for this are that much of the content of these recommendations is no longer relevant as it was agreed by the ICCAT Commission in 2009 that at the meeting in 2010 the Commission will establish a three-year recovery plan for Previous recommendations are, therefore, largely no longer relevant. Moreover, a number of the commitments made in previous ICCAT recommendations, such as the commitment to take action that will have at least a 60% probability of achieving BMSY by do not comply with the requirements of European legislation (as explained in section 3 below). In order to comply with the legal requirements discussed in this briefing, recommendations adopted by ICCAT in 2010 must ensure that decisive action is taken to protect bluefin tuna and to achieve MSY by 2020 at the latest. 2. A number of international law requirements are discussed throughout this briefing and for the purposes of the arguments set out in the briefing it is important to bear in mind that Article 216, TFEU, requires that international agreements concluded by the EU are binding on the institutions of the Union and on its Member States. This Treaty obligation (in combination with settled EU law case law 10 ) means that when the EU has signed and ratified an international agreement, the provisions of that agreement are automatically an integral part of EU law and binding on the EU institutions and EU Member States. Enforcement action can therefore be taken against any EU institution or Member State that has not complied with relevant provisions of international conventions which the EU has signed (whether or not they are separately implemented). Such enforcement action can be taken under Article 263, TFEU and possibly under Article 265, TFEU, as such institutions or Member States would be acting in breach of the powers and duties conferred upon them by the Treaty; see for example Article 13(2), TEU, which requires all European institutions to act within the limits of the powers conferred on it in the Treaties 11. Enforcement action can also be taken, of course, if primary or secondary EU law is not complied with. This would include, for example, non compliance with the integration principle and the requirement for consistency between different EU policies, (obligations under the Treaty (Article 7 and 11, TFEU) or obligations under Regulation EC/2371/2002 (the CFP Basic Regulation) or Directive 2008/56/EC (the Marine Strategy Framework Directive) (see discussion below). Both types of non-compliance are relevant in the context of legal obligations in relation to bluefin tuna and should therefore be borne in mind throughout this briefing. 8 ICCAT recommendation ICCAT recommendation Case C-181/73, R. & V. Haegeman v. Belgian State, 1974 E.C.R. 449; para 5 11 See also Article 17(1), TEU with regard to the Commission and Article 4(3), TEU for Member States duties to apply the Treaties and, in the case of Member States, not to take any measure that could jeopardise the achievement of the EU s objectives. 4

5 2. Obligations to apply the integration principle, the precautionary approach and to ensure consistency between EU policies One of the most important legal considerations in relation to the management and protection of bluefin tuna in the EU is the obligation to integrate environmental protection requirements into all EU legislation and policy (the integration principle). The integration principle is expressed as a provision of EU law having general application in Article 11, TFEU, and has also been recognised by settled EU case law as a binding principle of EU law. 12 In relation to the ICCAT negotiations, the EU is therefore obliged to apply the integration principle and ensure EU environmental protection requirements are applied. The environmental protection requirements referred to in Article 11 include in particular the requirements set out in Article 191, TFEU. This article includes, in particular, a requirement for the application of the precautionary principle and the principle that preventive action should be taken (Article 191(2)), the precautionary principle also being a general principle of EU law according to settled EU case law 13. When preparing environmental policy there is also a particular requirement for EU policy to take account of available scientific and technical data [and] the potential benefits and costs of action or lack of action (Article 191(3)). The requirements to integrate environmental protection and conservation into decision making, to take preventive action and to apply the precautionary principle are also requirements under international law. 14 The UN Fish Stocks Agreement provides a detailed explanation of the precautionary principle and requires that states that signed the agreement (including the EU) apply the precautionary approach widely to conservation, management and exploitation of highly migratory fish stocks in order to protect the living marine 15 resources and preserve the marine environment. The UN Fish Stocks Agreement requires signatories to act more cautiously when information is uncertain (but not to postpone taking action due to an absence of scientific information). 16 It also requires that, when implementing the precautionary approach, states should improve decision making in fisheries, determine stock specific reference points and take into account uncertainties relating to stock assessment. 17 In addition to being required to apply the precautionary approach as a principle of EU law and of international agreements signed by the EU, in relation to fisheries, the EU is also legally 12 See R v Minister of Agriculture - Case C-157/96 at paras 63-64; Greece v Council - Case C-62/88, at para UK v Commission; Case C-180/96 14 See for example UN Fish Stocks Agreement 1995, article 6; the Convention on Biological Diversity 1992, articles 6(b) and 10(a); Chapter 17, Agenda 21; the Convention for the Protection of the marine environment of the North-East Atlantic 1992 (the OSPAR Convention), Article 2(1)(a); the Convention on the Protection of the Marine Environment of the Baltic Sea Area 1974 (the Helsinki Convention), article 3(1); the SPA and Biodiversity Protocol of Barcelona Convention 1995, Article 3(1)(a); the Johannesburg Plan of Implementation 21 (under the World Summit on Sustainable Development 2002); paras 30(b) and(e). 15 Article 6(1), UN Fish Stocks Agreement. 16 Article 6(2), UN Fish Stocks Agreement. 17 Article 6(3), UN Fish Stocks Agreement. 5

6 obliged to apply the precautionary approach under Article 2(1) of the CFP Basic Regulation (Regulation EC/2371/2002). This article states that the Community shall apply the precautionary approach in taking measures designed to protect and conserve living aquatic resources, to provide for their sustainable exploitation and to minimize the impact of fishing activities on marine eco-systems. 18 The precautionary approach is stated in the CFP Basic Regulation to mean that the absence of adequate scientific information should not be used as a reason for postponing or failing to take management measures to conserve target species and their environment. Article 4(1) of the CFP Basic Regulation also requires the Council to establish Community measures to achieve the objectives mentioned in Article 2(1). These measures must be established taking into account available scientific, technical and economic advice. 19 This requirement for Community measures adopted by the Council under Article 4(1) to take scientific advice into account is important. Any decision by the Council to adopt measures deviating significantly from scientific advice could be challenged for a failure to adhere to the requirements of this Article. The EU is therefore legally required to act to prevent fishing practices from resulting in the unsustainable exploitation of bluefin tuna, any failure to take such action would contravene Articles 2(1) and 4(1) of the CFP Basic Regulation. Moreover, Article 5 of the CFP Basic Regulation requires the Council to adopt recovery plans when fish stocks are outside safe biological limits. These recovery plans should have the aim of ensuring the recovery of stocks to within safe biological limits and should include conservation reference points such as targets against which the recovery of the stocks to within safe biological limits shall be assessed. The data in relation to bluefin tuna is so poor that it would be difficult to assess accurately whether the stock is outside safe biological limits and therefore whether this obligation to adopt recovery plans is triggered. No conservation reference points have been defined for bluefin tuna but the evidence that is available shows that as recently as 2008 scientists stated that the high fishing mortality, low spawning stock biomass and severe overcapacity indicated a...high risk of fisheries and stock collapse." 20 In October 2009, ICCAT scientists found there is a greater than 95% probability that the current spawning biomass of Atlantic bluefin is less than 15% of what it was before industrial fishing began. 21 EU law therefore imposes a clear obligation on the EU to apply the precautionary approach and not to postpone taking action on bluefin tuna due to a lack of available data. 18 Regulation EC/2371/ Regulation EC/2371/2002; article 4(2) 20 SCRS report 2008; p SCRS report 2009; document PA2-604 / 2009, p9 6

7 This requirement to take a precautionary approach and to take management measures in the absence of clear scientific information is particularly important in relation to bluefin tuna, for which the scientific data is very poor and for which it is therefore particularly crucial that the precautionary approach (of taking action to prevent harm being done) be applied. The critical state of the stock makes the application of the precautionary principle particularly important to conserve bluefin tuna stocks. In addition to the integration and precautionary principles, there is also a connected obligation under Treaty law and under the CFP Basic Regulation which requires consistency between EU policies (see Article 7, TFEU and Article 2(2)(d) of the CFP Basic Regulation Regulation EC/2371/2002). In the context of the ICCAT negotiations, Article 7, TFEU means that the EU is required to ensure that its policy in relation to ICCAT negotiations is consistent with other EU policies and legislation. As the European Commission represents the EU in the ICCAT Commission and is able to influence ICCAT s decisions, the European Commission is therefore under a particular obligation to try to ensure recommendations adopted by ICCAT are consistent with all other European policies and legislation. This includes all the legislation discussed in this briefing. Applying articles 13(2), TEU and Article 263, TFEU means that if the EU (the Commission and the Council) fails to ensure that any EU acts arising out of the ICCAT negotiations (which are intended to produce legal effects) comply with EU law, then it would be possible to challenge the European Commission and/or the Council in the Court of Justice of the European Union. 3. Requirements to achieve Maximum Sustainable Yield (MSY) The Marine Strategy Framework Directive 22 imposes obligations on Member States to take the necessary measures to achieve or maintain good environmental status by the year 2020 at the latest (emphasis added). To achieve this, Member States are required to develop and implement marine strategies to protect and preserve the marine environment, prevent its deterioration or, where practicable, restore marine ecosystems in areas where they have been adversely affected. Each Member State s responsibilities extend to the outermost limit of their EEZ. 23 The Marine Strategy Framework Directive defines a set of qualitative descriptors, which Member States must use to determine whether a good environmental status has been achieved at regional level. Amongst them is included at descriptor 3 [p]opulations of all commercially exploited fish and shellfish are within safe biological limits, exhibiting a population age and size distribution that is indicative of a healthy stock Directive 2008/56/EC. 23 Directive 2008/56/EC; article 3(1)(a) and United Nations Convention on the Law of the Sea Articles Directive 2008/56/EC; Annex 1 (3) 7

8 By means of Commission Decision 2010/447/EU, 25 the EU adopted additional criteria and methodological standards for Member States to use to assess the extent to which good environmental status is being achieved. The Commission Decision states that this descriptor is made up of three separate indicators: the level of pressure of fishing activity, the reproductive capacity of the stock and the population age and size distribution. In relation to fishing pressure, Commission Decision 2010/447/EU states: Achieving or maintaining good environmental status requires that F values [levels of fishing mortality] are equal to or lower than FMSY, the level capable of producing Maximum Sustainable Yield (MSY). Maximum Sustainable Yield (MSY) is an assessment of the optimal catch that may be taken from a fishing stock year after year without endangering its capacity to regenerate for the future. 26 Assessments of MSY are necessarily specific to an individual stock which means that, in order to achieve good environmental status, fishing mortality for all species must be equal to or lower than FMSY. Because bluefin tuna is not caught in a mixed fishery it is not necessary to consider in any detail the relationships between species and the impact that the exploitation of one species at FMSY could have on other species. It is important to note however that under the Commission Decision 2010/447/EU, FMSY should be taken as a limit rather than a target and that the failure to reach FMSY cannot be justified on the basis of complex interactions between species. 27 In relation to bluefin tuna, the Marine Strategy Framework Directive therefore implies an obligation on all Member States within whose EEZ s bluefin tuna live to ensure that, by 2020 at the latest, the of bluefin tuna stocks are at or above SSBMSY. In addition at the 2002 World Summit on Sustainable Development, the EU committed to the goals set out in the Plan of Implementation adopted by the Summit. In relation to fisheries this included a commitment to achieve sustainable fisheries, in particular by taking action to: [m]aintain or restore stocks to levels that can produce the maximum sustainable yield with the aim of achieving these goals for depleted stocks on an urgent basis and where possible not later than While the language of this commitment acknowledges that it will not always be possible to achieve maximum sustainable yield (MSY) by 2015, the goal of achieving MSY on an urgent basis and by 2015 remains a goal the EU is working to achieve. 25 Commission Decision 2010/447/EU adopted under Article 9(3), Directive 2008/56/EC. 26 pdf 27 The Commission Decision states that in mixed fisheries it may be necessary to exploit some stocks more lightly than at FMSY in order not to prejudice the exploitation at FMSY of other species (emphasis added). This indicates that the requirement for stocks to be exploited at FMSY should be taken as a limit rather than a target no stocks should be exploited at above FMSY but in order to enable some stocks to be exploited at FMSY it may be necessary to exploit other stocks to a lesser extent. 28 Plan of Implementation adopted by the World Summit on Sustainable Development; para 31(a). 8

9 The Commission Decision 29 on criteria to be used to determine good environmental status states that the reproductive capacity of the stock should be assessed with reference to the Spawning Stock Biomass (SSB) for stocks. To achieve good environmental status, the SSB must be equal to or greater than SSBMSY i.e. the spawning stock biomass that would correspond to MSY under a fishing mortality equal to FMSY. 30 In relation to population age and size distribution, the Commission Decision also states that Healthy stocks are characterized by a high proportion of old, large individuals. The Decision states that expert judgment is required for determining whether there is a high probability that the intrinsic genetic diversity of the stock will not be undermined. 31 Member States are therefore required to ensure that all species in their waters, including (where appropriate) bluefin tuna, is at SSBMSY and exhibits a healthy population distribution with little or no risk of compromising the genetic diversity of the stock by The Marine Strategy Framework Directive is environmental legislation (with a Treaty basis of Article 175(1) TEC, now Article 192, TFEU) and is therefore subject to shared competence under TFEU article 4(2)(e). The Directive envisages Member States taking action to achieve good environmental status. However, it also recognises that some of the elements of good environmental status are linked to the Common Fisheries Policy and that EU action may be necessary in some instances to help Member States achieve good environmental status. 32 As the EU is required to ensure the application of EU legislation, including the provisions of the Marine Strategy Framework Directive, and is prohibited from adopting policies and legal acts that would contradict existing legislation (discussed in section 2 above), the EU is therefore bound to support Member States in their efforts to achieve good environmental status by 2020, including the requirement to reach SSBMSY for bluefin tuna by This obligation requires the Commission to push for a TAC in the forthcoming ICCAT meeting that reflects this requirement. To be able to demonstrate whether or not the Commission s legislative proposals comply with the requirements to achieve MSY by 2020, Commission proposals should be framed in terms of scientific reference points, in particular F, FMSY and SSBMSY. This should be the case not only in relation to bluefin tuna but also in relation to all commercially exploited fish stocks that are required to be at SSBMSY by 2020 under the Marine Strategy Framework Directive. There are significant concerns about the information available on the state of Atlantic bluefin tuna stocks. The lack of accurate information has led to the Standing Committee on Research and Statistics (SCRS), in its 2010 report, 33 deciding to adopt F0.1 as the proxy for FMSY Commission Decision 2010/447/EU. 30 Commission Decision 2010/447/EU. 31 Commission Decision 2010/447/EU; Annex, B, Recitals 31 and 39 and Article 15, Directive 2008/56/EC 33 SCRS report; document number SCI-018B / Section 8.5, page 6 of report SCI-018B /

10 The table titled BFTE-Table from the Atlantic bluefin tuna section of the SCRS 2010 report (attached at Annex 1) shows that the scientists assessment is that by 2020 there is an 89% likelihood that SSBF0.1 will be reached if the TAC is set at zero. The table also indicates that it will be near impossible to achieve MSY by 2015 even if the TAC is set at zero every year until 2015 (even with a zero TAC there is only a 14% chance of achieving MSY by 2015). This then means that, to comply with the goal of reaching MSY by and the legal obligation to reach SSBMSY (or SSB0.1) by 2020, 36 the EU must set a zero TAC. One of the other options mentioned by the SCRS, implementing a TAC of 13,500t (which is suggested as it would apparently comply with the target of having a 60% probability of reaching MSY by ), would result in a 70% likelihood that SSB0.1 or SSBMSY would not be reached by This option therefore does not go far enough to secure compliance with the Commission s legal obligations to support the Member States in their objective of achieving SSBMSY by Deduction of quotas for overfishing In 2007 the EU admitted catching significantly more than its quota of 16,779.55t. 38 Based on a provisional declaration of 21,219.9t (representing overfishing of 4,440.35t), in 2007 ICCAT adopted recommendation imposing an annual deduction of 1,480.13t on the EU s annual quota from In 2008 ICCAT amended this agreed timetable for deductions and agreed that the payback of the European Community for its overage in 2007 shall be spread over (500t in 2009 and 2010, 1510t in 2011 and 2012). 39 According to this agreement, in 2011 the EU therefore has to enforce deductions of 1,510t against quotas allocated to its Member States. The EU has acknowledged that in 2007 France and Italy both overfished their bluefin tuna quotas. 40 According to the EU s figures, in 2007 France caught 10,786.20t of bluefin tuna, representing overfishing of 5, t on their quota of 5,593.60t. In the same year Italy caught 4,663.80t, t more than their quota of 4,336.30t. 41 Even according to the EU s own figures (which are lower than figures obtained from France s reported bluefin tuna catch available on ICCAT s website which show an over catch of 5,293.35t in ), France s report to ICCAT of having overfished by 5,192.60t in 2007 is higher than the EU as a whole admitted to ICCAT to having overfished in 2007 (4,400.35t). 43 This clearly shows 35 Plan of Implementation adopted by the World Summit on Sustainable Development; para 31(a). 36 Directive 2008/56/EC and Commission Decision 2010/447/EU 37 SCRS report SCI-108B p 6 of section ICCAT recommendation 06-05; Annex 4 39 ICCAT recommendation 08-05; para 14(d) 40 Commission Regulation 446/2008; Annex 41 Commission Regulation 446/2008; footnote to table in Annex 42 ar=all&lorder=speciescode&lregion=blank&cregion=all&btsearch=search 43 Recommendation

11 that the EU s acknowledgement of overfishing by 4,400.35t does not represent a true admission of the extent of overfishing by the EU fleet in As a result of France and Italy having overfished their bluefin tuna quotas in 2007, the EU is obliged to impose quota deductions against France and Italy under the CFP Basic Regulation which states at Article 23(4): When the Commission has established that a Member State has exceeded the fishing opportunities which have been allocated to it, the Commission shall operate deductions from future fishing opportunities of that Member State. 44 The Commission stated in 2008 that, having acknowledged that both France and Italy overfished their bluefin tuna quotas in 2007, 45 it was therefore appropriate to make deductions from the 2008 bluefin tuna quotas of France and Italy. 46 In 2008 the Commission imposed deductions totaling 500t on France (412.54t) and Italy (26.06t). 47 Following the conclusion of negotiations regarding the TAC for bluefin tuna to be set in 2011, 1,510t is due to be deducted from the EU s allocation to comply with ICCAT recommendation Unless the TAC is set at such a level as to mean that the EU is allocated less than 1,510t in total, this deduction is likely to be imposed. The EU has however not yet made clear how this deduction will be passed on to the Member States when quotas are allocated within the EU. As stated above, the EU is required under the CFP Basic Regulation to operate deductions from future fishing opportunities when it has established that overfishing has occurred. In this case, the acknowledgement in Commission Regulation 446/2008 that France overfished by 5,192.60t (and Italy by t) in 2007 makes clear that the Commission has established overfishing. It is therefore obliged to operate deductions against France which, in total, should reflect the figure of 5,192.60t and against Italy to reflect the figure of t. The fact that the EU has negotiated with ICCAT to only pay back 4,440.35t does not affect the Commission s obligation under Article 23(4), Regulation 2371/2002/EC to impose deductions based on the actual level of overfishing, in the case of France 5,192.60t according to the EU s figures (or 5,293.35t according to the catches reported to ICCAT 48 ) and in the case of Italy t. It is clear from the provisions of the Control Regulation (Regulation EC/1224/2009) discussed below that the system of deductions is meant to be used by the Commission to penalize Member States found to have been overfishing. The CFP Basic Regulation and the Control Regulation (discussed below) do not allow for negotiation between the Commission and the Member State concerned of the amounts to be deducted following overfishing being established. To ensure consistency with the aims of the Control Regulation (discouraging overfishing) the Commission should therefore deduct a total (taking account of deductions already imposed) of either 5,192.60t or the higher figure of 15, t discussed below from France s quotas. The fact 44 Regulation 2371/2002/EC; article 23(4). 45 Regulation 446/ Commission Regulation 446/2008; recital Commission Regulation 446/ ar=all&lorder=speciescode&lregion=blank&cregion=all&btsearch=search. 11

12 that a lower deduction is to be imposed on the EU by ICCAT should have no bearing on the level of deductions imposed by the EU against France. In 2009 the EU adopted the Control Regulation (Regulation 1224/2009/EC) which clarifies the Commission s obligations to enforce deductions. The Control Regulation expands significantly on this obligation to deduct quota in the event of overfishing by requiring the Commission to multiply the amount of quota overfished in order to penalize the Member State involved. Article 105(2) of the Control Regulation states: In the case of an overfishing of a quota, allocation or share of a stock or a group of stocks available to a Member State in a given year the Commission shall operate deductions in the following year or years from the annual quota, allocation or share of the Member State which has overfished by applying a multiplying factor according to the following table: Extent of overfishing relative to the Multiplying factor permitted landings Up to 5 % Overfishing * 1,0 Over 5 % up to 10 % Overfishing * 1,1 Over 10 % up to 20 % Overfishing * 1,2 Over 20 % up to 40 % Overfishing * 1,4 Over 40 % up to 50 % Overfishing * 1,8 Any further overfishing greater than 50 % Overfishing * 2,0 France s bluefin tuna overfishing in 2007 of 5,192.60t 49 represents overfishing in that year of 92.8%. This means that if this Regulation can be applied, the figure of 5,192.60t would need to be multiplied by 2, resulting in an amount that France should be required to pay back under Article 105(2) of 10,385.20t. Because of the lesser extent of Italy s overfishing in 2007, which amounted to overfishing of 7.5% of their quota, these multiplication factors do not have the same impact on the deductions that should be imposed on Italy. The amount Italy overfished should be multiplied by 1.1, leading to a total deduction of t. In addition, Article 105(3) of the Control Regulation requires these figures to be multiplied by a further 1.5 if any of the following apply: (a) a Member State has repeatedly overfished its quota, allocation or share of the stock or group of stocks over the previous two years and these overfishings have been the subject of deductions as referred to in paragraph 2; (b) the available scientific, technical and economic advice and in particular the reports drawn up by STECF have established that overfishing constitutes a serious threat to the conservation of the stock concerned; or (c) the stock is subject to a multiannual plan Commission figures: Commission Regulation 446/2008; footnote to table in Annex 50 Regulation EC/2009; Article 105(3) 12

13 Overfishing has been acknowledged by the Standing Committee on Research and Statistics as a problem in the bluefin tuna fishery for a number of years. 51 The 2008 SCRS report acknowledged that substantial overfishing is occurring. 52 The 2008 SCRS report stated that Continuing fishing at the current level fishing mortalities is expected to drive the spawning stock biomass, to very low levels; i.e. to about 18% of the SSB in 1970 and 6% of the unfished SSB. This combination of high F, low SSB and severe overcapacity result in a high risk of fisheries and stock collapse. (Emphasis added). At the time of the overfishing by France and Italy, (b) above was clearly satisfied. In addition, ICCAT recommendation 06-05, on the establishment of a multi-annual recovery plan for bluefin tuna, was adopted at the 2006 ICCAT meeting; (c) above is therefore also satisfied. This means that, if the Control Regulation applies to France and Italy s 2007 overfishing, it will not be necessary to demonstrate that these Member States had repeatedly overfished bluefin tuna in for the Commission to be required to multiply the figures of 10,385.20t and t by 1.5. If the Control Regulation can be applied, then a total of 15,577.80t of quota should be deducted from France s allocations to reflect the 2007 overfishing and a total of t should be deducted from Italy s allocations. These totals should clearly include any quota France and Italy have already repaid (in 2008, 2009 and 2010) in relation to the 2007 overfishing. Unless France is prohibited from fishing bluefin for many years, this level of deduction is clearly unfeasible. Article 105(4) recognizes that in some circumstances (such as this), multiplying the quota will mean the deduction cannot be made as there is insufficient quota from which to deduct the amount due to be paid back. Article 105(4) therefore states: If a deduction cannot be operated on the quota, allocation or share of a stock or group of stocks that was overfished as such because that quota, allocation or share of a stock or group of stocks is not or not sufficiently available to the Member State concerned, the Commission may deduct in the following year or years quotas for other stocks or groups of stocks available to that Member State in the same geographical area, or with the same commercial value. 53 (Emphasis added) This gives the Commission the right to enforce the quota reduction against other species, either in terms of the total quota allocated within the same geographical area, or of quotas within other geographical areas with the same commercial value as the amount to be deducted. As bluefin tuna is an extremely valuable species, if the Commission chose to utilise this option, France s non-bluefin quotas would need to be very significantly reduced. The obligations to enforce deductions and to use the multiplying factors set out above are not discretionary. The option in Article 105(4) of the Control Regulation is intended to provide some flexibility in the management of quota deductions; it does not detract from the obligation to impose deductions but provides an alternative mechanism for payment of the deductions due. If 51 SCRS reports of 3 October 2008 and 8 October SCRS report of 3 October 2008; p Regulation EC/1224/2009; Article 105(4) 13

14 the provisions of the Control Regulation and Regulation 1224/2009/EC apply, the Commission is therefore obliged not only to cut France s bluefin tuna quota to zero for 2011 (and to impose quota deductions in following years until deductions totaling 5,192.60t or 15,557.80t have been made), but also has the option to enforce very significant quota cuts against France for other species. Although France s overfishing occurred before the Control Regulation came into force, the new regulation does not contain any restriction on when the overfishing must have occurred for the provisions of the regulation to apply. Even if the Control Regulation does not yet apply in this case, at a very minimum the provisions of the Control Regulation should guide the EU s decision on the required deductions, given that deductions are in any event required by Article 23(4) of the CFP Basic Regulation and as the EU has not yet decided on the deductions that it will enforce against France in 2011 (see above). Neither the Basic Regulation nor the Control Regulation (Regulations 2371/2002 and 1224/2009) clarify a timetable within which deductions need to be made. However, it is very clear from Article 105 of the Control Regulation that the system of quota deductions is intended to penalize Member States and to discourage them from overfishing. Even if these rules cannot apply to the 2007 quotas, they will clearly need to be applied in future to any overfishing occurring after The Commission should therefore impose a strict timetable for the payback of France and Italy s overfished quota. Deductions totaling t against Italy, and 5,192.60t against France should be imposed even if the Control Regulation is not applied. If the Control Regulation is applied, these deductions should total t against Italy and 15,577.80t against France. France s quota has historically been approximately 18% of the annual bluefin tuna TAC set by ICCAT. 54 This means that, based on the 2010 SCRS report advising that the TAC for bluefin tuna should not exceed t, the highest quota France is likely to be allocated in 2011 is 2,430t. As France has to pay back more than double the maximum quota that it would otherwise be likely to be allocated in 2011 based on the Commission s figures, and over six times this figure if the Control Regulation is applied, France cannot under EU law be allocated any quota in The Commission s legal duties to impose deductions are independent of ICCAT s decisions. The Commission should go further than the deduction of 1,510t that is likely to be imposed on the EU as a whole by ICCAT and the Commission must deduct quota from France s future allocations that reflects the true extent of France s overfishing in Protection of spawning grounds The creation of sanctuaries corresponding to the bluefin tuna spawning grounds will be discussed at the 2010 ICCAT meeting. 55 The Mediterranean Regulation (Council Regulation (EC) No 1967/2006) contains obligations for the EU to protect spawning grounds and requires both 54 Based on France s 2007 quota of 5, compared to the overall TAC in 2007 of 29, ICCAT Recommendation 08-05; 25 14

15 Mediterranean Member States and the Council to designate protected areas that correspond to known spawning grounds. The Mediterranean Regulation requires the establishment of fishing protected areas both within Member States territorial waters and in the waters beyond territorial waters with the aim of securing the protection of nursery areas, of spawning grounds or of the marine ecosystem from harmful effects of fishing. 56 Under the Mediterranean Regulation, Member States are first obliged to provide the Commission with information relevant to the establishment of fishing protected areas. 57 Following this, the Council is obliged to designate fishing protected areas occurring essentially beyond the territorial seas of Member States, concerning the types of fishing activities banned or authorized in such areas. 58 Member States have an equivalent obligation to designate fishing protected areas within their territorial seas under Article 6 of the Mediterranean Regulation. If Member States fail to comply with their obligation, the Commission has the right to challenge the Member State and can propose that a fishing protected area is designated by the Council rather than the Member State. The scientific information on bluefin tuna spawning grounds is currently poor, however SCRS have included in their 2010 report a map showing six areas which are believed to represent the dominant spawning areas. 59 A copy of this map is included at Annex 2 of this briefing. At least two of the spawning grounds identified by SCRS (areas 1 and 2 on the map at Annex 2) are likely to be at least partially situated in European waters or in the waters of European Member States (likely to be Spain and Italy). In order to comply with the provisions of the Mediterranean Regulation, Member States should have already provided information about bluefin tuna spawning grounds to the Commission to comply with the requirement in Article 5, Regulation 1967/2006/EC. However, in light of the new evidence of the locations of bluefin tuna spawning grounds provided by SCRS, they are now under a renewed obligation to provide information to the Commission and to initiate the designation of bluefin tuna spawning grounds as fishing protected areas. In light of the SCRS evidence of the location of bluefin tuna spawning grounds, both the relevant Member States and the Council are now under obligations to designate fishing protected areas that correspond to the bluefin tuna spawning grounds shown in the map at Annex 2. The Commission s position in the ICCAT negotiations regarding the creation of sanctuaries must be consistent with the requirements under Articles 5 and 6 of Regulation 1967/2006/EC for the EU to protect spawning grounds. The EU must therefore support the creation of sanctuaries correlating to bluefin tuna spawning grounds at ICCAT Regulation 1967/2006; Article 5 57 Regulation 1967/2006; Article 5 58 Regulation 1967/2006; Article 6 59 SCRS report SCI-018B / 2010;

16 6. Protecting bluefin tuna at a favourable state of conservation The Convention for the Protection of the Mediterranean Sea Against Pollution (the Barcelona Convention) was signed by the EU in 1976 and amended in 1995 to become the Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean. 60 The Barcelona Convention has not been transposed into EU legislation but the Convention and a number of its Protocols have been signed by the EU and have been adopted by way of Council Decision. 61 Amendments to the Barcelona Convention and the Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterranean (the SPA Protocol) were both ratified by the EU in The protocol came into force with the EU s ratification in The Barcelona Convention and all the Protocols to the Convention adopted by the EU are international agreements which have been concluded by the EU. As already set out above, this means that they are binding on EU institutions and on Member States and form an integral part of EU law. In particular, the European Court of Justice has clearly stated that the provisions of the Barcelona Convention and protocols of the Barcelona Convention adopted by the EU are binding on both the EU and on its Member States. 63 Article 4(1) of the Barcelona Convention states: The Contracting Parties shall individually or jointly take all appropriate measures in accordance with the provisions of this Convention and those Protocols in force to which they are party to protect and enhance the marine environment in that Area so as to contribute towards its sustainable development. (Emphasis added). Article 14(1) of the Convention clarifies that the obligation to take measures includes an obligation to legislate: The Contracting Parties shall adopt legislation implementing the Convention and the Protocols. This places an obligation on the EU (and its Member States) to take all appropriate measures, in particular by introducing legislation and to comply with the requirements of the Protocols the EU has ratified (and which are in force) including the SPA Protocol. Article 12(1) of the SPA Protocol states: The Parties shall adopt cooperative measures to ensure the protection and conservation of the flora and fauna listed in the Annexes to this Protocol relating to... the List of Species whose Exploitation is Regulated. Article 12(4) states: 60 Council Decisions 77/585/EEC of 25 July 1977 and 1999/802/EC 61 Council Decisions 1999/800/EC and 1999/802/EC 62 Council Decisions 1999/800/EC and 1999/802/EC 63 Case C-239/03,Commission v France, paras

17 The Parties, in cooperation with competent international organisations, shall take all appropriate measures to ensure the conservation of the species listed in the Annex relating to the List of Species whose Exploitation is Regulated while at the same time authorizing and regulating the exploitation of these species so as to ensure and maintain their favourable state of conservation. (Emphasis added). Thunnus thynnus, bluefin tuna, is listed in Annex III, the List of Species whose Exploitation is Regulated. For the purposes of conserving and regulating the exploitation of bluefin tuna, ICCAT is a competent international organisation. 64 Article 12(4) is significant as it requires the EU, as a party to the Convention, to act together with ICCAT to conserve bluefin tuna. The fact that this article provides for the exploitation of bluefin tuna does not detract from its conservation aims the purpose of the parties actions should be to ensure exploitation is at such a level so as to secure the favourable state of conservation of the species. Although this article seeks to regulate the bluefin tuna fishery, the principal purpose of this provision is environmental. The requirement in Article 12(4) of the SPA Protocol is for bluefin tuna to be maintained at a favourable state of conservation. This is not defined in the SPA Protocol or elsewhere in the Barcelona Convention and has not been clarified by subsequent caselaw. However, this wording very closely reflects wording in article 1(i) of the EU Habitats Directive (Directive 92/43/EEC). Although bluefin tuna is not a protected species under the Habitats Directive, it makes sense to use the definition of favourable conservation status under the Habitats Directive to help clarify the meaning of favourable state of conservation under the SPA Protocol to the Barcelona Convention. Favourable conservation status is defined in Article 1(i) of the Habitats Directive: the conservation status of a species will be taken as favourable when: population dynamics data on the species concerned indicate that it is maintaining itself on a long-term basis as a viable component of its natural habitats, and the natural range of the species is neither being reduced nor is likely to be reduced for the foreseeable future, and there is, and will probably continue to be, a sufficiently large habitat to maintain its populations on a long-term basis. Although the two terms in the Habitats Directive and the SPA Protocol are not identical, they are clearly very similar. It therefore makes sense that any interpretation of favourable state of conservation should be consistent with the clear definition of favourable conservation status that is part of EU law under the Habitats Directive. It could also be argued that under article 7, TFEU, the EU is under an obligation to ensure that the interpretation of these two terms is consistent. 64 International Convention for the Conservation of Atlantic Tunas, preamble and article 3 17

18 As a result of the obligations under the Barcelona Convention and the SPA Protocol, the EU and its Member States are under a clear obligation to cooperate with ICCAT to take action to protect bluefin tuna. If the Habitats Directive definition of favourable conservation status is applied, this obligation means that the EU is obliged to take action, in cooperation with ICCAT, to ensure the long term viability of bluefin tuna. Because the long term viability of a species can be secured before a stock reaches MSY (for example with a higher fishing mortality and a lower spawning stock biomass), this target of ensuring long term viability may therefore impose less stringent requirements for stock protection than the requirements to achieve MSY discussed in section 3 above. This means that the Barcelona Convention obligation regarding a favourable state of conservation must be seen as an immediate minimum obligation for the protection of bluefin tuna. Action taken to comply with the Barcelona Convention obligations will help the EU to achieve the requirements of the Marine Strategy Framework Directive discussed above. ClientEarth 25 October 2010 Contact details: Rowan Ryrie Marine Biodiversity Lawyer Marine Programme t +44 (0) m +44 (0) e 18

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