Article 47 - Some Background
Jan 26,2009 00:00 by SACN

From a document passed to SACN:

The implications, (as seen by certain Continentals) for British Recreational Sea Anglers, of the European Union

Proposal for a COUNCIL REGULATION establishing a Community control system for ensuring compliance with the rules of the

Common Fisheries Policy (CFP)

{SEC(2008) 2760}

{SEC(2008) 2761}

"Grounds for and objectives of the proposal

Due to its global and integrated approach, focusing on every aspect of the CFP, the reform of the control policy should not only improve control capacity and management of fisheries resources and establish a level playing field in the EU, but also have a positive structural impact on the fishing industry and on the market and, thus, combat the environmental, economic and social consequences of non-compliance.

More specifically, the proposal aims to achieve:

A new, common approach to control and inspection

Introduction of harmonised inspection procedures and higher standards should ensure uniform

implementation of control policy at Member State level, while taking account of and

respecting the diversity and specific characteristics of different fleets.

A culture of compliance

The objective is to influence the behaviour of all stakeholders involved in the full cycle of fishing activities (catching, processing, distribution and marketing), so that compliance with the CFP policies and regulations is achieved not only by means of monitoring and control activities, but also as a result of a general culture of compliance where every part of the industry invests in compliant activities and the legitimacy of the CFP rules is restored.

Effective application of CFP rules

The objective is to strengthen the Commission’s management powers and capacity to intervene proportionately to the level of non-compliance by the Member States.

The responsibilities of the Commission and of the Member States will be clearly defined in order to avoid overlaps and to ensure that the Commission sticks to its core activity of controlling and verifying implementation of the CFP rules by Member States.

The current system of microdecisions should be progressively replaced by a macromanagement-based approach."

The European Angling Association (EAA) under the secretaryship of Jan Kappel has long demanded recognition as a stakeholder in the CFP.

The Recreational Sea Anglers (RSA's) in certain countries, notably France, Portugal and Spain, are not affiliated to the EAA because they are licensed by their own governments, and through official channels are recognised as existing stakeholders.

To date, no formal control has existed for the activities of RSA's in the United Kingdom.

This is incompatible with the goal of a general culture of compliance.

Some form of control mechanism is therefore inevitable, and that will equally inevitably be in conformity with the more structured mechanisms already existing in certain member countries, thus achieving a macromanagement-based approach.

In simple language, what does this mean?

For the Bureaucracy, an extension of activity, influence and power.

For the Conservationists, a tighter control and ideally a reduction in the catching of marine fish stocks.

For the RSA's, the introduction of a licence, or tax, on their activity.

Will this apply to shore angling as well as boats?

Yes.

Article 2

Scope

This Regulation shall apply to all activities carried out on the territory of Member States or in Community waters or by Community fishing vessels or, without prejudice to the primary responsibility of the flag State, nationals of Member States, which relate to

(a) the conservation, management and exploitation of living aquatic resources,

(b) aquaculture,

(c) processing, transport and marketing of fishery and aquaculture products.

Angling, whether from the shore or on a boat, is considered exploitation of living aquatic resources.

The act of catching, or using material with the intent to catch, living aquatic resources, with the intent to either retain or return the catch, is classed as exploitation.

Article 4

Definitions

For the purposes of this Regulation, the definitions set out in Regulation (EC) No 2371/2002 shall apply. The following definitions shall also apply:

(1) "Fishing activity" means searching for fish, shooting, setting, hauling of a fishing gear, taking catch on board, transhipping, retaining on board, processing on board, transferring and caging of fish and fishery products;

Angling, whether from the shore or on a boat, is considered searching for fish.

The use of material with the intent to catch, living aquatic resources, with the intent to either retain or return the catch, is classed as searching for fish.

Article 5

General principles

1. Member States shall control the activities carried out by any natural or legal person within the scope of the Common Fisheries Policy on their territory and within waters subject to their sovereignty or jurisdiction, in particular fishing, transhipments, transfer of fish to cages or aquaculture installations including fattening installations, landing, import, transport, marketing and storage of fishery products.

2. Member States shall also control access to waters and resources and control activities outside Community waters carried out by Community fishing vessels flying their flag and, without prejudice to the primary responsibility of the flag Member State, by their nationals.

3. Member States shall adopt appropriate measures, allocate adequate financial, human and technical resources and set up all administrative and technical structures necessary for ensuring inspection, monitoring, surveillance and enforcement of activities carried out within the scope of the Common Fisheries Policy. They shall make available to their competent authorities and officials all adequate means to enable them to carry out their tasks.

4. Each Member State shall ensure that control, inspection, monitoring, surveillance and enforcement is carried out on a non-discriminatory basis as regards the sectors, vessels or persons chosen for inspection, and on the basis of risk management

5. In each Member State, a single authority shall coordinate the control activities of all national control authorities. It shall also be responsible for coordinating the collection and verification of information on fishing activities and for reporting to, and cooperating with the Commission, other Member States and third countries.

6. The payment of contributions from the European Fisheries Fund pursuant to Council Regulation (EC) No 1198/2006 and of Community financial contributions to measures referred to in Article 8, paragraph a, of Council Regulation (EC) No 861/2006 shall be conditional upon respect by the Member States of their  obligation

to ensure compliance with and enforcement of the rules on conservation, control, inspection and enforcement under the Common Fisheries Policy related to, or having an impact on the effectiveness of, the measures being financed, and to operate and maintain an effective inspection, monitoring, surveillance and enforcement regime to this effect.

Article 5 (2) control access to waters and resources implies the end of the "Freedom to Roam" principle. In addition, in the UK the tidal area of foreshore is Crown property, and this Article will necessitate national legislation to enable application.

Article 5 (3) Member States shall adopt appropriate measures, etc. This will require extensive legislation, particularly in view of Article 47 below.

Article 5 (5) a single authority shall coordinate the control activities. Prima Facie DEFRA, although under the British Constitution certain acquired powers may be outside the remit of that Department without new legislation.

Article 5 (6) Clearly states that unless all the measures are implemented, EU funding will not be forthcoming.

And specifically for boat anglers

But with clauses that will equally apply to shore anglers.

Article 47

Recreational fisheries

1. Recreational fisheries on a vessel in Community waters on a stock subject to a multiannual plan shall be subject to an authorisation for that vessel issued by the flag Member State.

2. Catches in recreational fisheries on stocks subject to a multiannual plan shall be registered by the flag Member State.

3. Catches of species subject to a multiannual plan by recreational fisheries shall be counted against the relevant quotas of the flag Member State. The Member States concerned shall establish a share from such quotas to be used exclusively for the purpose of recreational fisheries.

4. The marketing of catches from a recreational fishery shall be prohibited except for philanthropic purposes.

Article 47 (1) authorisation for that vessel.

There are two basic interpretations of this.

First, the vessel itself will carry the authority, requiring registration of the vessel with an authorised personnel capacity and a periodic authorisation (licence) to fish.

This in the same manner as charter vessels in certain EU countries.

Second, the master of the vessel will carry personal authority in the form of a licence, as will all other persons engaged in fishing activity on board that vessel. This interpretation obviates the need for vessel registration.

Article 47 (2) registered. Again, there are two basic interpretations of this.

First, mandatory registration of the real caught quantity/weight by species.

This would require extensive monitoring & control involving a costly administrative structure.

Second, a quota limit per species per licence per time period. For example, an individual licence would allow a maximum of 5kg per day of cod, with a maximum of 50kg for the duration of the licence.

Note that this clause refers to Recreational fisheries not just to vessels employed in recreational fishing.

Article 47 (3) shall establish a share from such quotas.

The basis for the justification of the cost of a licence - plus administrative costs.

Article 47 (4) philanthropic purposes.

Included in recognition of angling competitions, where in many countries the fish "weighed in" are traditionally sold or auctioned off for charitable purposes.

This may be used as a way by certain Mediterranean countries to exempt their small-scale fishermen who supply their own community, often on an exchange basis.

Article 81

Measures to ensure compliance

1. Member States shall ensure that appropriate measures are systematically taken, including administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons suspected of a breach of any of the rules of the Common Fisheries Policy.

2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements and of producing results proportionate to the seriousness of such infringements, thereby effectively discouraging further offences of the same kind.

3. Member States may apply a system whereby a fine is proportionate to the turnover of the legal person, or to the financial advantage achieved or envisaged by the commission of the serious infringement.

4. The competent authorities of the Member State having jurisdiction in the event of an infringement shall, without delay and in compliance with their procedures under national law, notify the flag Member States, the Member State of which the offender holds the citizenship, or any other Member State with an interest in the follow up of the infringement of the criminal or administrative proceedings or other measures taken and of any definitive ruling relating to such infringement, including the number of points assigned.

Article 81 (1) administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons suspected This covers not only professional fishermen, but RSA's, and prohibits fishing in any form without the proper authority within the territorial waters of another member state.

Article 81 (2) effectively depriving those responsible of the economic benefit. In addition to the direct interpretation of this - that the penalty should be equal to the potential gain, this article has been interpreted by the Spanish as acceptance of their normal procedure - the impounding of the vessel suspected of an infringement.

Article 81 (3) achieved or envisaged by the commission. This clause gives the Commission powers to alter penalties handed down by a member state's legal system.

Article 81 (4) their procedures. Wording reportedly insisted upon by the Spanish.

Who benefits?

The Bureaucratic machine? - Yes. Increased work load = increased personnel = increased power/earnings.

The Marine Environmentalists and Conservationists? - Yes. They will have more accurate data upon which to base their evaluations.

The Anti-Blood Sports lobby - Yes. They wish to stop all forms of Angling, and will interpret this as a positive step.

The Fish stocks? - Perhaps. Even assuming an average 30kg per capita per annum take-home by 1.4m sea anglers, this means 42,000 tonnes of fish. In 2007, 610,000 tonnes of fish were landed by UK commercial fishermen alone in UK ports, and an estimated 200,000 further tonnes by foreign vessels. Add the fish dumped at sea and a total commercial catch approaching 900,000 tonnes is a reasonable total. The RSA catch is therefore around 5% of the fish caught.

The Tourist Industry? - No. It is questionable how much benefit Sea Angling brings to the tourist industry overall. Game fishing is of more significance as a net importer of tourist income, but local impact in certain areas would be significant should the sea angling charter business be adversely affected.

The Fishing Tackle Industry? - No. Statistically, the RSA's make up some 25% of the angling community, but their consumption of tackle is proportionately higher than that of Coarse and Game anglers, and accounts for nearly one-third of tackle purchases. Any significant reduction in the number and/or frequency of sea angling purchases would put most small tackle suppliers at risk.

The Charter Boats? - No. Extra costs imposed by the provisions of the Regulations would have to be passed on to the charterers, with the inevitable reduction in business levels which will render many boats unsustainable in economic terms.

The Recreational Sea Angler? - No. Of the 1.4m RSA's, only a minority fish with a frequency of more than once a week, and many of those whose fishing is confined to a dozen or less days a year will consider having to buy a licence too much of an imposition.

Case Study

Consider the situation in France.

Licence.

Essentially all fishing is licensed in France except for privately owned waters.

A national fresh water licence currently costs €65.50 for the year, and allows game and coarse fishing.

A salt water licensing system was brought in some years ago after protests from the fresh water anglers and pressure from the commercial sector. In basic terms -

A national salt water shore licence currently costs €27 for the year.

A national salt water boat licence costs €45.

These licence costs are determined by pragmatic judgement - what the market will stand.

There is almost no control of licences for sea angling for shore fishing, and boat fishing licences are only controlled during a safety control by the "gendarmerie maritime" when boat registration documents, insurance, boat "driving" licence, flares, life jackets and buoyancy aids are checked.

There are almost three million fresh water licence holders in France, and less than 300,000 salt water licence holders.

French sea anglers are like British sea anglers - they object to paying for a licence.

But as with the small under 10 metre sector local boats, EU regulation framed with the large industrial boats in mind, has a habit of being applied universally with little thought for its appropriateness in all circumstances.

But as with the small under 10 metre sector local boats, EU regulation framed with the large industrial boats in mind, has a habit of being applied universally with little thought for its appropriateness in all circumstances.