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The UK and the CFP

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Emma Cardwell

on 18 March 2014

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Transcript of The UK and the CFP

The UK and the CFP
Emma Cardwell
Bristol University School of Law
Fisheries Jurisdiction Case [United Kingdom vs Iceland] judgement of July 25 1974 [1974] ICJ rep. 3
Expansion: Accession of Spain and Portugal

"Quota Hopping"
Free movement of capital Art 294 EC
Freedom of establishment Art 43 EC
UK quota trading: the Shetland case
2012 reform: summary
Results: MSY
Results: replace relative stability with
market based transferable rights
Results: Differentiated regime
for small scale fishers
Results: Integrate the CFP into the
broader maritime policy context
and also... a Discard Ban
Third United Nations Convention on the Law of the Sea
(UNCLOS) 1982.
In Europe, this 12nm zone had been recognised legally since the 1964 European Fisheries Convention.

legally established as the technological basis of the CFP.
[Article 3]
Results: regionalisation
2009 Green Paper:
"differentiated management regimes: one for large-scale fleets, where capacity adjustment and economic efficiency are at the core, and another for small-scale fleets in coastal communities with a focus on social objectives.”
Entered into force 16th November 1994

Regulation (EU) No. 1380/2013

“CFP shall
aim to
ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the MSY”

Regulation (EU) No. 1380/2013

Art 21
: “MS
establish a system of transferable fishing concessions. MS having such a system shall establish and maintain a register of transferable fishing concessions.”
Article 17:
“When allocating the fishing opportunities available to them, as referred to in Article 16, Member States
use transparent and objective criteria
including those of an environmental, social and economic nature
[...] Within the fishing opportunities allocated to them, Member States shall
endeavour to
provide incentives to
fishing vessels deploying selective fishing gear or using fishing techniques with reduced environmental impact
, such as reduced energy consumption or habitat damage.”
"The CFP

implement the ecosystem-based approach to fisheries management
so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised, and shall endeavour to ensure that aquaculture and fisheries activities avoid the degradation of the marine environment."

“CFP shall be guided by the following principles of good governance: c) the establishment of measures in accordance with the best available scientific advice”

: “Where targets relating to the MSY as referred to in Article 2(2) cannot be determined, owing to insufficient data, the multiannual plans shall provide for measures based on the precautionary approach, ensuring at least a comparable degree of conservation of the relevant stocks.”

Art. 16(4)
: “Fishing opportunities shall be fixed in accordance with the objectives set out in Article 2(2) and shall comply with quantifiable targets, time-frames and margins established in accordance with Article 9(2) (precautionary approach) and points (b) and (c) of Article 10(1) (objectives, mortality rate, spawning stock biomass).”

“The Commission shall report annually to the European Parliament and to the Council on the progress on achieving maximum sustainable yield and on the situation of fish stocks, as early as possible following the adoption of the yearly Council Regulation fixing the fishing opportunities available in Union waters and, in certain non-Union waters, to Union vessels.”

1. All catches of species which are subject to catch limits and, in the Mediterranean, also catches of species which are subject to minimum sizes as defined in Annex III to Regulation (EC) No 1967/2006, caught during fishing activities in Union waters or by Union fishing vessels outside Union waters in waters not subject to third countries' sovereignty or jurisdiction [...]
shall be brought and retained on board the fishing vessels, recorded, landed and counted against the quotas where applicable
, except when used as live bait"

Article 16:
Each Member State shall decide how the fishing oppor­tunities that are allocated to it,
and which are not subject to a system of transferable fishing concessions
, may be allocated to vessels flying its flag (e.g. by creating individual fishing oppor­tunities).
..."Member States having a direct management interest affected by those measures may, within a deadline to be stipulated in the relevant conservation measure and/or multiannual plan,
agree to submit joint recommendations for achieving the objectives of the relevant Union conservation measures
, the multiannual plans or the specific discard plans."
"Since all matters related to Europe's oceans and seas are interlinked, the CFP should be implemented in a way that is consistent with other Union policies and, in particular, that
takes into account interactions with Union actions in other maritime policy areas
Reform 2012-2014
To manage stocks in line with the principle of
Maximum Sustainable Yield (MSY)
To replace
relative stability
market-based transferable rights
To create a
differentiated regime
small scale
To give the
industry more responsibility for implementation
of policy objectives
Improve the
knowledge base
for the policy
the CFP into the
broader maritime policy
In years after WWII, UK had a large fleet of trawlers, primarily operating in what are now the waters of Norway, Iceland, Greenland and the Faroe Islands.
R v Joy and Bossom [2006] EWCA Crim 1489 [2006] EuLR 1131.
UKAFPO v Secretary of State for Rural Affairs [2013] EWHC 1959 Case No. CO/4796/2012
The Commission considered that the Scheme resulted in an economic advantage to the fishing undertakings benefiting from it, and was not compatible with common market.
Article 87
of EC Treaty (
Treaty of Amsterdam 1997
2003/612/EC: Commission Decision of 3 June 2003
on loans for the purchase of fishing quotas in the Shetland Islands
(United Kingdom) [2003] OJ L211/3
1988 Merchant Shipping Act
ECJ c-213/89; c221/89; c-46/93; c 48/93;
see also c-3/87 (Aggregate); c-216/87 (Juderow).
provides the
legal basis
for the
Article 3 (d)
of the Treaty provides for the
"adoption of a common policy in the sphere of agriculture"
Article 38 (1)
defines what
"agricultural products"
means and includes in its definition the
"products of ... fisheries and products of first-stage processing directly related to these products"
C-812/79 - Attorney General v Burgoa
, [1980] ECR 2787, [1981] 2 CMLR 193;
Joined cases 180/80 & 266/80 - José Crujeiras Tome v Procureur de la République and Procureur de la République v Anton Yurrita
, [1981] ECR 2997;
Case 181/80 Arbelaiz-Emazabel
, [1981] ECR 2961;
Cases 138/81 & 139/81 Marticorena-Otazo
, [1982] ECR 3819;
Cases 137/81 & 140/81, Campandeguy-Sagarzazu
, [1982] ECR 2847;
Cases 13-28/82 Arantzamendi-Osa
, [1982] ECR 3927.
Cases 50-58/82 Administrateur da Affaires Maritimes v. Dorca Marina
, [1982] ECR 3949
judgement delivered halfway through 1st UNCLOS session
Para. 67
: Iceland's claim violated
article 2
Convention on High Seas (1958)
- though judgement somewhat ambiguous
Churchill (1975)
The Fisheries Jurisdiction Cases
International & Comparative Law Quarterly 24:1 82-105
CFP Basic Regulation:
Introduction of TACs and Quota
1985 licensing conditions

Sovereign Marine Jurisdiction: Cod Wars; United Nations Convention on the Law of the Sea
European Integration: Treaty of Rome; Negotiating and implementing the Common Fisheries Policy
The foundations of the Basic Regulation [1983]
Spanish and Portuguese accession [1986]
"Quota Hopping" and Freedom of Establishment
Two rounds of reform: 1992 and 2002
State aid and competition: Shetland
The 2012 reform: what's changed?
UK background: Cod Wars
In 1972, Iceland unilaterally extended sovereign rights over fisheries 50nm from their coastline
West Germany
appealed to
International Court of Justice
Fisheries Jurisdiction Case [Federal Republic of Germany vs Iceland] judgement of July 25 1974 [1974] ICJ rep. 175
formalized state jurisdiction over a 12nm territorial sea [
part II art. 2-33

granted states jurisdiction and certain sovereign powers over a 200nm
Exclusive Economic Zone
(EEZ) [
part v. art. 55-75
the EC lead-up to the Common Fisheries Policy
Treaty of Rome (1957)
Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources
1970 Regulation 2141/70/EEC
Common structural policy
(size of fleet)
Equal access

(Art. 2)
... principles of economic integration and equal access agreed before UK, Ireland, Denmark and Norway accession negotiations (1970-1972).
Accession and the Common Fisheries Policy
1970-1972: UK, Ireland, Norway and Denmark all negotiating accession
UK delegation torn between protecting own waters, and accessing waters of Norway, Greenland, Faroe Islands
Britain's Entry Into the European Community: Report by Sir Con O'Neill on the Negotiations 1970-1972
Based on principle of
common organisation
, fisheries EC
exclusive competence


Greenland left EC after referendum in 1982
Norway did not join EC
Danish accession did not includ
Faroe Islands in CFP
6-12 territorial sea recognised (temporary, but included in every reform since)
[Art. 6]
Text of CFP represents balance between territoriality and openness
(EC coordinated North Atlantic Member States extension of EEZs in 1977, these were immediately under EC fisheries jurisdiction)
Total Allowable Catch
This ostensibly set by scientists, but then debated in
Council of Ministers
, and often ended up
significantly higher than scientific advice
Quota shares: relative stability
TAC shared out between nation states ("quota") based on principle of
Relative Stability [Article 4]
State's share of TAC based on reported catches 1973-1978
Technical measures
zoning, gear controls, mesh sizes
[art. 2]
member states responsible for managing own fleet - can lead poor enforcement
Spain and Portugal join EC 1st January 1986
Huge fishing fleet - as large as other 10 states' combined
Sp. & Ptg. Fleets fishing limited in EC common pond since EEZ declared in 1977
1985 Act of Accession did not include Spain & Portugal in CFP: access limited 'transitionally' till 1996
No fishing in North or Baltic Seas, no fishing around Ireland
Only limited number of boats allowed in "community" waters
TAC did not represent 'relative stability'

(Art. 161)
1985 Act of Accession OJ 1985 L302/23 Arts. 156-166, 347-353.
1996- management effort of all MS fleets controlled, area based measures:

Council Regs. (EC) 1275/94; 685/95; 2027/95; OJ 1995 L71/5; OJ 1995 L199/1.

Not a "common pond"!
Portugal and Spain not allowed equal access under CFP
UK Government Response:
Quota Trading: Markets & State Aid
Commission suggestions (Green Paper):
Spanish fishing companies began to buy vessels in other European states (UK, Ireland, France) to get access to fishing opportunities and quota in areas closed to them.
Although allowed access to North Sea, Dutch companies also bought foreign vessels for their quota holdings
vessel owners had to prove certain economic linkage to UK (home port, crew, nationality, address)
"Factortame" cases before ECJ:
was a Spanish fishing company registered in UK)
UK lost these cases
Treaty establishing European Community (treaty of Rome)
Since 1999, UK has had an internal market for quota ("transferable fishing concessions")
Some remote regions concerned about losing quota
Shetland Council spent £5.8 million purchasing quota to lease to local fishermen
ECJ ruled Shetland's actions constituted unlawful state aid
Summary: CFP up to now
common structural policy
common market
common pond
not equal access
"relative stability"
12 nm territorial sea
1992 Reform of CFP:
Council Regulation 3760/92
2002 Reform of CFP:
Council Regulation No 2371/2002
Member states given more responsibility for reducing overcapacity
[Chp. 3 Art 11-16]
Longer term: from annual to
[Art. 5 p. 3 & Art. 6 p. 3]
Localisation through
Regional Advisory Councils
(around 30 members including industry, NGOs)

[Art. 31]
Increased environmental focus, shift to conservation and balancing fleet with resources
[preamble, Article 2]
tighter licence controls & reporting to Commission
[Art. 4].
1`995: Expansion, accession of Sweden & Finland
So what did we get?
Regulation (EU) No. 1380/2013:
The new Common Fisheries Policy!

(came into force January 2014)
(and a few other mentions)
so no mandatory market for quota. ALSO:
Env. & Soc. criteria may not be market-compatible. BUT
Does TFC system mean no environmental incentives have to be provided?
Intended to protect small scale fishers from compulsory quota market
UK has a differentiated system, but allocation of quota between two sectors problematic - see:
Defendants argued EU did not impose limits on boats under 10m
So no differentiated regime necessary, although could be created at MS discretion under
Article 17:

("Member States
use transparent and objective criteria

including those of an
and economic nature"
Importantly, adoption of ecosystem approach:
Article 2(3):
Principle 17:
Not in the Green Paper, but a significant change of policy
Article 15:
Member states given greater freedom and responsibility for 'how' of implementation (e.g. of discard ban, MSY)
If CFP framework requirements not met, MS lose this freedom
Member states can cooperate to recommend regional measures to Commission
Article 18 (1):
To manage stocks in line with the principle of Maximum Sustainable Yield (MSY)
To replace relative stability with market-based transferable rights
To create a differentiated regime for small scale fleets
To give the industry more responsibility for implementation of policy objectives
Improving the knowledge base for the policy
To integrate the CFP into the broader maritime policy context.
2012 reform is promising: ecosystem approach, integration with Maritime Policy, social and environmental access criteria, regionalisation
CFP shows tensions between free market openness of EEC/EU project and Member States' territorial concerns
Now it all depends on state implementation: how will member states put CFP into force?
Long & Curran (2008)
Enforcing the Common Fisheries Policy
Churchill & Owen (2010)
The EC Common Fisheries Policy
Hannay (2000) B
ritain's Entry Into the European Union: Report on Negotiations of 1970-1972 by Sir Con O'Neill
Psychology Press
Fisheries important: big increase in size of "common pond"
TAC should be set at MSY
In line with UNCLOS
Potentially biggest impact of new CFP for UK
No legal clarity on
ecosystem approach should be implemented
Don't forget
Regional Advisory Councils
- introduced in 2002 reform
Remember enforcement: important as each state polices own boats - Union polices states (through inspections and ECJ) see
Control Regulation (EC) 1224/2009
shift to conservation as aim of CFP
Evolution & Reform
2009 Control Regulation: improve enforcement
Member states police own boats - disparity in enforcement
inspections and ECJ used to try and level playing field
Full transcript