“The legal text does not match the Commission’s rhetoric”

Commissioner Maria Damanaki has said she wants an ambitious CFP reform that ends overfishing. But, as a legal document, the CFP reform proposal does not define clearly enough the terms and provisions to realise its goal, writes Sandy Luk, Senior lawyer at ClientEarth.

As the process of debating the European Commission’s proposal for reform of the Common Fisheries Policy (CFP) is set to last well into 2013, it’s easy to forget the excitement that heralded its announcement only a few months ago. For once, fishers, environmentalists, journalists, politicians, and scientists from all European Member States seemed to be in concert: the Common Fisheries Policy is damaging both the environment and commercial interests – it must be improved.

On July 13 Maria Damanaki’s speech introducing the Commission’s proposal was greeted with such fanfare that you would have been forgiven for thinking that the new CFP would solve Europe’s fisheries woes almost instantaneously. At long last, here was a Commissioner who was prepared to state the cold facts about Europe’s appalling fisheries management: “75% of EU fish stocks are still overfished…” she explained, “if we don’t make structural changes to the way we do business now, we will lose one fish stock after the other, with a possible chain reaction for the ecosystem that is hard to predict.”

The speech’s stated intentions were, and are, hugely welcome in an area of policy that has not progressed nearly fast enough for many years. However, having analysed the proposal over a period of months ClientEarth has found that the text of the proposal doesn’t deliver the expressed intentions of that promising speech. It could – but it needs some detailed redrafting.

Where does the proposal fall short? Put simply: it won’t stop overfishing. As a legal document, it does not define clearly enough its terms and provisions to realise its goals.

A key area illustrating this problem relates to multiannual plans (a welcome concept to secure greater long-term thinking to the CFP). Multiannual plans are used to keep exploitation of fish stocks at the ‘maximum sustainable yield ‘ (MSY) – the maximum amount of fish you can take from a stock indefinitely without damaging the stock. However, the scientific reference points for MSY are many. Without further details on which reference point is to be used, ‘sustainable’ becomes wildly open to interpretation. Further, the proposal does not say what species multiannual plans would cover and when. As a result, a group that favours ecosystems based fisheries management might assume that this means the plans will be like ecosystem/regional management plans. On the other hand, if you are against EU interference you might as well assume that multiannual plans exclusively cover species that are already subject to long-term/recovery plans. It would also be logical to assume that there should be multi-annual plans at least for all the species subject to a discard ban, or subject to EU catch limits.

If allowed to stand as it is, the proposal will inevitably frustrate all parties as none of these assumptions are correct or incorrect – they are just assumptions. If we want the CFP to work, the new regulation needs to precisely specify what multi-annual plans are for and what they cover.

Regionalisation is another case in point. The text of the proposal is unclear and, again, lends itself to assumption. According to the Commissioner Member States should be able to pass certain regional measures. Member States who want regionalisation hope that this will allow them room for manoeuvre, while those who don’t hope it means power will stay with the EU.

The truth is even less clear. Under the proposal Member States may be empowered to take more measures, but it does not indicate in what circumstances. Nor does it say who will take those measures if Member States are not so empowered; or impose any duty on the Commission to act if Member States do not act or act insufficiently. So we potentially have a system under which whole sea regions could go unmanaged on a practical working basis.

It is precisely because the proposal features such positive environmental goals that it is tempting to overlook the fact that it won’t necessarily deliver them: the Commission clearly wants to eliminate discarding, but the proposal doesn’t include any obligation to avoid unwanted catch – the surest way of ending discards.

Interpreting the proposal’s gaps and weaknesses as being “not what the Commission wants” is not satisfactory. Many have made the assumption that we have to fill in the missing elements of the proposal’s governance framework and legal loopholes with further assumptions about what should go in their place. However, with no guarantee that two parties will make the same assumptions (no matter how ‘obvious’ they may appear) the debate begins on an unsteady footing because its participants have conflicting ideas about what the proposal provides.

The process of hammering out the shape of Europe’s fisheries law was always going to be long and complex – as it should be. Maria Damanaki’s speech of July 13 signalled the beginning of the process, and like the start gun in a marathon, it is easy to lose sight of that initial excitement when the miles stretch out ahead. However, that speech gave us more than a little cause for hope. There is political will to end overfishing; we just need to get it down in law.

Technical and summary briefings outlining ClientEarth’s full assessment of the legal issues in the CFP proposal and their solutions can be read here.

Sandy Luk
Senior lawyer, Biodiversity programme, ClientEarth

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