IUU fishing – a new regime for the CFP
Andrew Oldland QC, partner at UK solicitors Michelmores, looks at illegal fishing from a legal perspective.
On 1 January 2010 the face of EU fisheries regulation changed with the introduction Council Regulations 1005/2008 (‘the IUU Regulation’) and 1224/2009 (‘the Control System Regulation’).
The primary objective of both regulations is better control of fishing in EU waters and of the trade in fisheries products entering or leaving the EU market. The IUU Regulation in particular focuses on traceability and seeks to exclude products from rogue vessels or from non-cooperating flag states from entering the EU market. Although early enforcement activity, and industry perception, has focused on non-EU vessels and companies, its greatest impact will fall on the EU fishing industry.
Understandably attention has been focused on the new systems and controls, which comprise 95% of the EU Handbook, but the risks to operators from the new, and much tougher, enforcement regime are often overlooked. Massive financial penalties, the seizure and sequestration of vessels and other assets, withdrawal of licences and blacklisting now face those who commit serious infringements.
These new regulations have also heralded a move from administrative sanctions towards criminal sanctions for offenders, including imprisonment.
Although fishing fleets will continue to attract enforcement attention, there is a new emphasis on fish processing and importing companies.
Both regulations contain an explicit recognition in their preamble that the pre-existing system of policing and enforcing the EU common fisheries policy (CFP) was inadequate. In particular the preamble in both regulations states:
“The persistence of a high number of serious infringements against the rules of the common fisheries policy within Community waters or by Community operators lies to a large extent in the non-deterrent level of sanctions prescribed within Member States' legislation in relation to serious infringements to those rules. This weakness is compounded by the wide variety of sanctions levels across Member States...”
Article 44 of the IUU Regulation provides that “Sanctions for serious infringements” should be "effective, proportionate and dissuasive" administrative or criminal sanctions. Paragraph 2 requires the imposition of a sanction at least five times the value of the fisheries products obtained or, in the case of a second such infringement within five years, eight times the value.
Potential accompanying sanctions include the sequestration of the fishing vessels involved, the confiscation of gear and the withdrawal of fishing licences and quota entitlements.
The definition of what constitutes a 'serious infringement' is widely cast. It is not confined to those committing systematic, high value offending. Article 42 defines serious infringements as:
- Any IUU fishing considered by the enforcing member state to be serious taking into account the damage done, value, extent of the infringement or its repetition or
- The conduct of business directly connected to IUU fishing which includes the trade in or the importation of fisheries products or
- The falsification of documents
By far the most common infringements relate to the deliberate under-declaration of catches which necessarily involve the falsification of log books and/or electronic data – ordinarily such infringements fall within the definition of serious.
Ultimately the determination of whether or not an infringement is serious falls to the enforcing member state. Offenders could now face massive penalties for what had hitherto been treated by some member states as relatively trivial.
Ensuring a common approach to sanctions
Historically, member states have adopted wildly different views on appropriate sanctions.
In the UK in July 2012 the Truro Crown Court imposed a fine and other financial penalties totalling £1.62m (approx. €2m) on the Spanish company Hijos de Vidal Bandin SA for systematically under-declaring catches landed into Northern Spain and for failing to record transhipments. This was the highest ever financial penalty imposed by a UK court for fisheries offences.
The Court had regard to the IUU Regulation in deciding the appropriate level of penalty.
A sign of the times is that the Marine Management Organisation (MMO), the UK fisheries enforcement agency, had brought criminal fraud charges against the individuals involved who, if convicted, would have faced prison sentences. However, following the guilty pleas to the (non-imprisonable) fisheries offences, the MMO discontinued these charges.
The UK is widely perceived to take a robust approach to fisheries enforcement.
It is unlikely that had the same Spanish company been pursued in its own country for the same offending that it would have faced anything like the level of sanction imposed.
However, things may well be changing. Although the European Commission cannot itself impose sanctions on operators, it can take action against member states who fail to implement and apply EU fisheries legislation adequately – so any departure by a member state from the level of sanctions set out in the IUU Regulation must be justified.
The European Commission also has the power to include fishing vessels on its 'IUU Blacklist'. Besides prohibiting the blacklisted vessel from fishing in EU waters, it also prohibits any EU company from dealing with the vessel or its produce, wherever caught, in any way. Any EU company so doing commits its own breaches of the IUU Regulation.
A vessel can be blacklisted if it is or has been involved in IUU fishing and its flag state fails to apply effective sanctions against it.
The current blacklist has largely been lifted from the lists of other world fisheries bodies and does not yet contain any EU flagged vessel. However, blacklisting may well prove a much quicker and more efficient way for the Commission to ensure that EU member states comply with their obligations under the IUU Regulation.
It is unlikely to be long before the first EU flagged vessels appear on the blacklist. It will be revealing to see where those vessels are flagged.
The IUU regime also provides for the mandatory exchange of information between member states. This includes first sales notes, which can be vital in proving the under-declaration of catches. Obtaining relevant information from other member states had been a major hindrance to effective enforcement action.
Although it may take some time to have full effect, the new regime will at last tackle one of the CFP's greatest bug bears and provide equal treatment of offenders regardless of flag state.
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