The Management of Fisheries within the UK Zone Post-Brexit
New EU Technical Conservation Regime
The Commission has recently adopted its long-awaited proposal for a new Technical Conservation Framework Regulation. This will replace the long-lasting but unloved, and frankly ineffectual, existing regulation (EU 750/98) along with a number of subsidiary regulations.
The Commission’s explicit aim is to usher in a radically different approach to selectivity that is fully aligned with the other elements of the reformed CFP. The new approach is in itself a recognition that the previous regulation failed at a number of levels. Prescriptive micromanagement, through blanket top-down rules, has not delivered improvements in selectivity and exploitation patterns.
Two previous attempts to replace the Technical Conservation Regulation stalled, even though it has been the best example of all that has been wrong with the CFP. The second attempt was a genuine attempt to simplify and regionalise decision making in the area of technical rules; but prior to the 2013 reform, there was no legal basis to shift decision making away from the Council of Ministers, other than by delegating it to the Commission – and such was the lack of trust in the Commission that no member state felt inclined to do that. The 2013 reform with the enhanced role for policy formulation at a regional seas level provides a new legal base.
The main features of the new approach are:
⦁ A policy adapted to policy objectives laid down in the CFP
⦁ A shift away from complex, prescriptive rules towards decentralised measures
⦁ A framework that is open to bottom-up approaches, avoiding the need for co-decision on detailed technical rules
⦁ Easily and speedily adaptable rules that can cope with a rapidly changing world
⦁ Measures that are more adapted to local conditions
⦁ A means to move progressively towards more selective fishing through continuous and gradual improvement
⦁ A focus on outcomes (results based management)
⦁ Above all, the new approach involves a change in governance.
⦁ A conscious decision was made not to use the new regulation to impose new selectivity requirements – in terms of immediate impact therefore, the new proposal represents the status quo. Incrementally, additional measures will be added through regional initiatives over time
⦁ The proposal integrates the environmental objectives that are already in the CFP
⦁ A number of basic rules are included in the proposal but the idea is that these would be modified over time through a bottom-up approach in which member state, working together collaboratively at regional seas level, would be the main drivers
⦁ As it is compulsory for member states to consult the relevant advisory council, it is expected that the ACs will become important contributors to the evolution of the technical measures regime over time. However there is no guarantee about this and we will have to see how it plays in practice, including whether member states, on the advice of the ACs put certain technical measures into their Joint Recommendations for discard plans
1. Horizontal and permanent measures, with wide coverage and applicable to everyone. These measures are considered absolutely necessary and uncontroversial (examples given were the ban on the use of explosives for fishing and the prohibition on catching basking sharks)
2. Objectives will be set for the first time. For example in due course there may be rules which limit the catch of undersized fish to a certain percentage, although the means of meeting that requirement will not be specified; it will be for vessels and perhaps regional member states to decide how this is to be achieved
3. Simplification: new ways of expressing mesh sizes that avoid catch composition rules will be adopted, using simpler language
4. Elimination of a number of closed areas generated in the past by the CFP but which have no coherent justification; this will not include closed areas generated by other areas of European legislation such as the requirements of the Marine Strategy Framework Regulation/Habitats Directive
5. Regionalised measures contained in a number of specific annexes; these are the measures that will be built on over time through regional bottom up initiatives
Drift Net Ban
The proposal provides definitive confirmation that the Commission have dropped its misconceived proposal to apply a blanket ban on small-scale drift nets. This has been a major embarrassment to the Commission; reflecting a complete lack of homework and the previous Commissioner’s intemperate personality. If a prohibition on a specific drift net fishery is considered necessary, it will now be dealt with at regional seas, not EU level. This should act as a brake on any repeat.
Even at the level of a proposal, this new framework represents a compromise within the Commission. The purity of a vision of wholly a regionalised, bottom-up technical measures regime is qualified by various considerations. Even if not every aspect aligns with what we would want to see, it is possible to recognise that this is indeed a radically different approach and an attempt to learn from the past.
There are however real fears that the coherence of the proposal and the attempt to achieve a decisive shift away from prescriptive micro-management will be thwarted by too many accretions as it proceeds through the co-decision process. The interinstitutional dispute between the Council and the European Parliament does not provide a very healthy context for sensible outcomes. If the proposal becomes another part of the turf war between the European Parliament and the Council of Ministers we could find ourselves back in the realm of prescriptive micro-management – a definite recipe for failure.
The NFFO will be working through Europeche and the advisory councils to ensure that the co-legislators do not backslide, beginning with a presentation to the European Parliament Fisheries Committee on 21st March.