This was a different kind of December Council in a number of important ways. Many delegations…
Regionalisation of the CFP Taking stock
It is almost two years since it was decided to introduce a degree of regionalisation into decision-making within Common Fisheries Policy. We reflect on what it has meant so far.
One size fits all
The NFFO was amongst the first to argue that one central reason why the CFP had repeatedly failed to deliver effective management measures was fundamentally down to its reliance on top-down, over- centralised, decision making. We argued, persuasively as it turned out, that the Council of Ministers, and the Commission, were too remote from the many complex and diverse fisheries under the CFP, to have any hope of designing management measures that could be implemented effectively. The law of unintended consequences seemed to be particularly active in fisheries managed from the centre in Europe. Initially rejected by many as the renationalisation of the CFP by the back door, the idea of decentralising the CFP gradually gained currency as the only politically realistic route away from blunt, one-size-fits-all measures with an unacceptable failure rate.
In one sense, the Commission’s hand was called, as the Lisbon Treaty introduced co-decision which meant that the European Parliament would in future have direct jurisdiction in policy decisions for European fisheries. In an unguarded moment one Commission official reflected that this meant that CFP decisions had shifted from 28 people who don’t know what they’re talking about to 751 people who don't know what they’re talking about. Under co-decision a new regulation could be expected to take two years to pass through the legislative process. Regionalisation was a conscious step away from this type of cumbersome centralised decision-making, albeit in a heavily circumscribed and limited way.
Regional Advisory Councils
The recognition that management decisions within the CFP were too remote from the people that they affected, breaching all the rules of good governance, was actually evident in the 2002 reform of the CFP . The regional advisory councils were introduced as a tentative way of addressing mounting criticism of the way that the CFP went about its business. Few at the time anticipated however that fishermen from the different member states could sit down with each other and thrash out meaningful, well founded, advice; much less that in most cases it would be possible to agree compromise positions with other stakeholders such as the environmental NGOs. But in all of the regional advisory councils this has been the experience, to a greater or lesser degree. It is widely agreed that the RACs were the most successful aspect of the 2012 reform.
It was the 2002 reform however, that saw the regionalisation agenda shift from the advisory directly into the area of policy formulation. The lawyers ensured that the EU Treaties were respected and that there was no question that member states would have direct legislative powers; but the intention was that member states would be given explicit authority to work collaboratively at regional seas level to produce joint recommendations and that those joint recommendations would have privileged status as they are fast tracked by the Commission through delegated act into legislation.
It is reasonable to ask the question: after two years, how is regionalisation working?
It would be too glib to say that it's too early to say. But it is also true that it will be over time that the effectiveness of regional policy formulation will be assessed. We should probably not rush to intemperate and premature judgements. Regionalisation has been a long time coming. It is in its infancy and we can expect it to take a few tumbles as it take its first baby steps.
And it hasn't helped that in its first outing, regionalisation has been tasked to deliver joint recommendations on the most far-reaching, most indigestible, piece of European fisheries legislation yet to emerge: implementation of the EU landings obligation.
What we can say is that member states are working collaboratively (not to say feverishly) at regional seas level to deliver regional discard plans by June. Member states with direct fisheries interests in the North Sea and in North West Waters have been meeting regularly at fisheries director level and at technical level in an intense programme of work. They have to make joint recommendations on questions of critical importance, such as phasing the introduction of the landings obligation and the exemptions that should apply – or hand the whole matter back to the Commission, which would then come forward with its own plan by default.
A rational approach to a discard ban would have been to build up the knowledge base on actual discard rates in the different fisheries, and to do the science on high survival to underpin decisions on exemptions - before implementation decisions are made. The basic CFP Regulation however precludes that and forces a timetable that is bound to lead to casualties. These are the less-than-optimal conditions in which the member states are working.
Under the CFP reform RACs became ACs but despite regionalisation, their essential function remains the same: to provide advice. The difference is in who that advice is delivered to. The regionally cooperating member states rather than the Commission are the main recipients of the ACs’ advice on the discard ban. The ACs have been invited to participate in parts of the High Level (Fisheries Directors) and Technical meetings to explain their respective positions on phasing, definition of fisheries, high survival and de minimis exemptions.
But this is not co-management or anything like it. The decisions made within the joint recommendations may or may not reflect elements of AC advice. The signs are that to a large extent their advice on the big ticket items will not be followed.
It is well to remember how new all this is to member states, who are used to dealing more or less individually with the Commission; and are now obliged to forge joint recommendations. It is possible to see national characteristics as well as different fleet interests, personalities and politics all at work within the groups. Some member states insist on focusing on a workable and practical approach, whilst others argue for the most rigid interpretation of the (deeply ambiguous) legislation.
We will soon learn the contents of the joint recommendations for regional discard plans. The signs seem to be that what will emerge will be a landings obligation that for the demersal fisheries will require vessels to land one or perhaps two species in the first year. Fisheries will be defined in relation to area of operation, gear used or target species. There will be some high survival and de minimis exemptions. Later, we will learn about quota uplift and quota flexibilities. The ACs will have a brief opportunity to comment on the joint recommendations before they go to the Commission, and STECF for evaluation.
So, what conclusions can we arrive at? Is regionalisation a damp squib, or the path to a more rational and effective CFP?
In our judgement, it is both. The jointly agreed discard plans will not offer the best way to implement the landings obligation; we can expect many of the characteristic of the old CFP to emerge during their implementation: Unintended consequences by the bucket load, conflicting, contradictory rules; confusion; and mistrust can all be expected to be part of the mix, as well as vessel operators trying their best to comply with the new and confusing rules and keep their fishing businesses viable.
The fault for all of this will not primarily lie with regionalisation or the member states, rather the problem is the same old story. The CFP basic regulation, and in particular Article 15 is overly-prescriptive and ties member states’ hands to an unacceptable degree. More than anything else, the content of the discard plans will reflect the views, not of the member states, or the advisory councils but the “28 people who don't know what they are talking about and the 751 who know even less.”
Regionalisation is the first step in decentralising the CFP and it is more important than ever that it is developed and nurtured. But it is clear from Article 15, and from the Commission’s bizarre proposal to ban small-scale drift nets, that the discredited command-and-control way of thinking has not gone away. Top down is far from dead.
The challenge is not to throw the regionalisation baby out with the bathwater because the landings obligation is a car crash but to work, stepwise, towards a form of co-management that provides a solid basis for a collaborative approach to fisheries management; only that that will relegate top-down decision-making to history because it isn't needed. This will take time; but there will be a proposal for a new technical measures framework later this year and that will provide a good place to start in making the shift from prescriptive top-down micromanagement to a more flexible approach that decentralised a real measure of authority to regional level.
Decentralising the CFP was never going to be a simple or straightforward process but we have little choice but to work hard to make it work. We already know that the alternative is far worse.