(1)

Regulation (EU) No 1380/2013 of the European Parliament and of the Council (1) requires the adoption of conservation measures taking account of available scientific, technical and economic advice, including, where relevant, reports drawn up by the Scientific, Technical and Economic Committee for Fisheries (STECF) and other advisory bodies, and any advice received from advisory councils.

(2)

It is incumbent on the Council to adopt measures on the fixing and allocation of fishing opportunities, including conditions functionally linked thereto, as appropriate. Under Article 16(4) of Regulation (EU) No 1380/2013, fishing opportunities are to be fixed in accordance with the objectives of the common fisheries policy (CFP) set out in Article 2(2) of that Regulation. In addition, for stocks subject to specific multiannual plans, total allowable catches (TACs) should be established in accordance with the targets and measures laid down in those plans. Under Article 16(1) of that Regulation, fishing opportunities are to be allocated among the Member States so as to ensure the relative stability of fishing activities of each Member State for each fish stock or fishery.

(3)

TACs should therefore be established, in accordance with Regulation (EU) No 1380/2013, on the basis of available scientific advice, taking into account biological and socio-economic aspects while ensuring fair treatment between fishing sectors, and in the light of opinions expressed during the consultation of stakeholders, in particular in meetings of the advisory councils.

(4)

Under Article 15 of Regulation (EU) No 1380/2013, all stocks for which there are catch limits have been subject to the landing obligation since 1 January 2019, although certain exemptions apply. Article 16(2) of that Regulation provides that, where the landing obligation in respect of a fish stock is introduced, fishing opportunities are to reflect catches rather than landings. On the basis of joint recommendations by the Member States and in accordance with Article 15 of Regulation (EU) No 1380/2013, the Commission has adopted a number of delegated regulations laying down details for the implementation of the landing obligation in the form of specific discard plans.

(5)

Fishing opportunities for stocks covered by the landing obligation should take account of the fact that discarding is in principle no longer allowed. Therefore, they should be based on the advice figure for total catches (rather than that for wanted catches) provided by the International Council for the Exploration of the Sea (ICES). The quantities that, by way of exemption from the landing obligation, may continue to be discarded should be deducted from that advice figure for total catches.

(6)

There are certain stocks for which ICES has advised zero catches. However, if TACs for those stocks are established at the advised level, the obligation to land all catches, including by-catches from those stocks in mixed fisheries, would give rise to the phenomenon of ‘choke species’. In order to strike a balance between maintaining fisheries, in view of the potentially severe socio-economic implications of failing to do so, and the need to achieve a good biological status for those stocks, taking account of the difficulty of fishing all stocks in a mixed fishery at maximum sustainable yield (MSY), it is appropriate to establish specific TACs for by-catches for those stocks. Those TACs should be set at levels that ensure that the mortality for those stocks is decreased and that provide incentives to improve selectivity and to avoid by-catches of those stocks. In order to reduce catches of the stocks for which by-catch TACs are set, fishing opportunities for the fisheries in which fish from those stocks are caught should be set at levels that help the biomass of vulnerable stocks to recover to sustainable levels. Technical and control measures that are intrinsically linked to fishing opportunities should also be established to prevent illegal discarding.

(7)

In order to guarantee, to the extent possible, the use of fishing opportunities in mixed fisheries in accordance with Article 16(2) of Regulation (EU) No 1380/2013, it is appropriate to establish a pool for quota exchanges for Member States that have no quota to cover their unavoidable by-catches.

(8)

In accordance with the Western Waters multiannual plan established by Regulation (EU) 2019/472 of the European Parliament and of the Council (2), the target fishing mortality for the stocks listed in Article 1(1) of that Regulation is to be maintained within the ranges of fishing mortality values resulting in MSY (‘ranges of FMSY’) defined in Article 2, point (2), of that Regulation, in accordance with Article 4 thereof. The overall fishing mortality for European seabass (Dicentrarchus labrax) in ICES divisions 8a and 8b should therefore be set in accordance with ICES MSY advice and with the FMSY point value, taking into account commercial and recreational catches, and including discards. FMSY point value is the fishing mortality value that gives the long-term MSY. The relevant Member States (France and Spain) should take appropriate measures to ensure that the fishing mortality from their fleets and recreational fishers does not exceed the FMSY point value, as required by Article 4(3) of Regulation (EU) 2019/472.

(9)

Measures for recreational fisheries for European seabass should be maintained, in view of the significant impact of recreational fisheries on the stocks concerned. The bag limits should be maintained in line with the scientific advice. Fixed nets should be excluded, as they are not sufficiently selective and likely to catch a number of specimens exceeding the established limits. In view of the environmental, social and economic circumstances, especially the dependency of commercial fishers in coastal communities on the stocks in question, the measures for European seabass strike an appropriate balance between the interests of commercial and recreational fishers. In particular, the measures allow recreational fishers to fish by taking account of their impact on the stocks.

(10)

On 4 November 2021, ICES issued a scientific advice for European eel (Anguilla anguilla) throughout its natural range. ICES advised that, when the precautionary approach is applied, there should be zero catches in all habitats in 2022. This applies to both recreational and commercial catches and includes catches of glass eels for restocking and aquaculture. In accordance with this advice, it is considered appropriate to maintain the consecutive three-month closure for all fishing of eel whilst the Commission carries out a stakeholder-based consultation on European eel in 2022. The prohibition should apply to all fishing activities as defined in Article 4(1), point (28), of Regulation (EU) No 1380/2013. The Member States should determine the consecutive three-month closure, which should fall within the periods of the highest migration of European eel and report it with supporting information to the Commission by 1 June 2022.

(11)

The scientific advice for anchovy (Engraulis encrasicolus) in ICES subarea 8 (Bay of Biscay) for 2022 was released by ICES only on 17 December 2021. Given the need to have a TAC in place for the start of the fishing season on 1 January 2022, a provisional TAC should be set. This TAC should be set at 24 000 tonnes and cover the period from 1 January 2022 to 30 June 2022. Such a level would correspond to approximately the catches of that stock in the period from 1 January 2021 to 30 June 2021.

(12)

In ICES divisions 8c, 8d, 8e and subareas 9 and 10 and in Union waters of CECAF 34.1.1, three distinct species of sole are managed within a single TAC. As fishing opportunities for one of those stocks, namely for common sole (Solea solea) in ICES divisions 8c and 9a, should be set in line with Article 4 of Regulation (EU) 2019/472, a separate catch limit should be established for that species, in line with the MSY advice.

(13)

Scientific advice for stocks of elasmobranchs (skates, sharks, rays) is zero catches, due to their poor conservation status. In addition, high survival rates mean that discarding is not considered to raise their fishing mortality and would be beneficial for their conservation. Fishing of such species should therefore be prohibited. Under Article 15(4), point (a), of Regulation (EU) No 1380/2013, the landing obligation does not apply to species for which fishing is prohibited.

(14)

The North Sea multiannual plan was established by Regulation (EU) 2018/973 of the European Parliament and of the Council (3) and entered into force in 2018. The Western Waters multiannual plan was established by Regulation (EU) 2019/472 and entered into force in 2019. Fishing opportunities for stocks listed in Article 1(1) of those Regulations should be fixed in accordance with the targets (ranges of FMSY) and safeguards provided for in those Regulations. The ranges of FMSY have been set out in the relevant ICES advice. Where no adequate scientific information is available, fishing opportunities for by-catch stocks should be fixed in accordance with the precautionary approach, as set out in Regulations (EU) 2018/973 and (EU) 2019/472.

(15)

In accordance with Article 7 of Regulation (EU) 2018/973, where scientific advice indicates that the spawning stock biomass of any of the stocks referred to in Article 1(1) of that Regulation is below the limit biomass reference point (Blim), further remedial measures are to be taken to ensure the rapid return of the stock to levels above those capable of producing MSY. In particular, those remedial measures can include suspending the targeted fishery for the stock in question and the adequate reduction of fishing opportunities for those or other stocks in the fisheries.

(16)

The TACs for bluefin tuna (Thunnus thynnus) in the eastern Atlantic and the Mediterranean should be established in accordance with the rules laid down in Regulation (EU) 2016/1627 of the European Parliament and of the Council (4).

(17)

For stocks for which there is a lack of sufficient or reliable data on which to base stock size estimates, management measures and TAC levels should follow the precautionary approach to fisheries management, as defined in Article 4(1), point (8), of Regulation (EU) No 1380/2013, while taking account of stock-specific factors, in particular available information on stock trends and mixed fisheries considerations.

(18)

Council Regulation (EC) No 847/96 (5) introduced additional conditions for the year-to-year management of TACs including flexibility provisions for precautionary and analytical TACs (Articles 3 and 4). Under Article 2 of that Regulation, when establishing TACs, the Council is to decide to which stocks Article 3 or 4 of that Regulation is not to apply, in particular on the basis of their biological status. In 2014, another year-to-year flexibility mechanism was introduced under Article 15(9) of Regulation (EU) No 1380/2013 for all stocks that are subject to the landing obligation. In order to avoid excessive flexibility that would undermine the principle of rational and responsible exploitation of marine biological resources, the achievement of the objectives of the CFP and the biological status of the stocks, Articles 3 and 4 of Regulation (EC) No 847/96 should apply to analytical TACs only where the year-to-year flexibility provided for in Article 15(9) of Regulation (EU) No 1380/2013 is not used.

(19)

Where a TAC is allocated to one Member State only, it is appropriate to empower that Member State, in accordance with Article 2(1) of the Treaty on the Functioning of the European Union (TFEU), to determine its TAC. It should be ensured that, when determining the TAC level, the Member State acts in a manner that is fully consistent with the principles and rules of the CFP.

(20)

It is necessary to establish the fishing effort ceilings for 2022 in accordance with Articles 5, 6, 7 and 9 of, and Annex I to, Regulation (EU) 2016/1627.

(21)

In order to guarantee full use of fishing opportunities, it is appropriate to allow for the implementation of a flexible arrangement between certain TAC areas where the same biological stock is concerned.

(22)

For certain species, such as certain species of sharks, even limited fishing activity could give rise to a serious conservation risk. Fishing opportunities for such species should therefore be fully restricted through a general prohibition on fishing them.

(23)

At the 12th Conference of the Parties of the Convention on the Conservation of Migratory Species of Wild Animals (Manila, 23-28 October 2017), a number of species were added to the lists of protected species in Appendices I and II to that Convention. Therefore, it is appropriate to provide for the protection of those species with respect to Union fishing vessels fishing in all waters and non-Union fishing vessels fishing in Union waters.

(24)

The use of fishing opportunities available to Union fishing vessels set out in this Regulation is subject to Council Regulation (EC) No 1224/2009 (6), and in particular to Articles 33 and 34 of that Regulation, concerning the recording of catches and fishing effort, and the notification of data on the exhaustion of fishing opportunities. It is therefore necessary to specify the codes to be used by Member States when sending the Commission data on landings of stocks subject to this Regulation.

(25)

The Union TAC for Greenland halibut (Reinhardtius hippoglossoides) in international waters of ICES subareas 1 and 2 is without prejudice to the Union’s position on the appropriate Union share in that fishery.

(26)

At its annual meeting in 2021, the North-East Atlantic Fisheries Commission (NEAFC) adopted a conservation measure for the two redfish (Sebastes marinus and Sebastes mentella) stocks in the Irminger Sea and adjacent waters, prohibiting directed fisheries of those stocks. In addition, in order to minimise by-catches, the NEAFC prohibited fishing activities in the area where redfish aggregates. Those measures, based on the ICES advice for zero catches, should be implemented in Union law. The NEAFC was unable to adopt a recommendation for redfish in ICES subareas 1 and 2. For that stock, the relevant TAC should be established in line with the Union position expressed in NEAFC.

(27)

For Greenland halibut in international waters of ICES subareas 1 and 2, taking into account the ICES scientific advice for 2022, a TAC of 1 766 tonnes should be fixed.

(28)

At its 2021 annual meeting, the International Commission for the Conservation of Atlantic Tunas (ICCAT) decided to maintain in 2022 the current TACs for bluefin tuna, swordfish (Xiphias gladius), blue marlin (Makaira nigricans), white marlin (Tetrapturus albidus), yellowfin tuna (Thunnus albacares) and blue shark (Prionace glauca). ICCAT also established a TAC for bigeye tuna (Thunnus obesus) of 62 000 tonnes for 2022. Those measures should be implemented in Union law.

(29)

In order to reduce the fishing mortality of juvenile bigeye and yellowfin tuna, ICCAT also established a maximum limit of 300 fish-aggregating devices (FADs) per vessel in 2022 and a closure period for the use of FADs. Those measures should be implemented in Union law.

(30)

ICCAT also adopted a 15-year rebuilding plan for Mediterranean albacore (Thunnus alalunga) from 2022 to 2036. For 2022, ICCAT set the TAC for Mediterranean albacore at 2 500 tonnes. In addition, ICCAT adopted a TAC for North Atlantic albacore of 37 801 tonnes for the period from 2022 to 2023, based on the harvest control rule with a view to adopting a long-term management procedure for this stock. Those measures should be implemented in Union law.

(31)

At its 2021 annual meeting, ICCAT also adopted a recovery plan for North Atlantic shortfin mako (Isurus oxyrinchus) caught in association with other ICCAT fisheries to end overfishing and gradually achieve biomass levels sufficient to support MSY by 2070. The recovery plan includes a two-year retention ban starting in 2022. The total fishing mortality was set at a maximum of 250 tonnes until new scientific advice is provided. Those measures should be implemented in Union law.

(32)

Under several ICCAT recommendations, the Union is allowed, upon request, to carry over a set percentage of its unused quota of fishing opportunities from 2020 to 2022. Pending the implementation of those ICCAT recommendations in Union law, the quotas for individual Member States for certain stocks should be established on the basis of a total Union quota for 2022 as determined by ICCAT before any carry-over of unused quotas or deductions for quantities overfished made by ICCAT. The adjustments to the quotas of individual Member States for 2022 reflecting any carry-overs and deductions should be carried out at a later stage on the basis of Union rules on carry-over and deductions, such as Regulation (EC) No 847/96, Article 15(9) of Regulation (EU) No 1380/2013 or Article 105 of Regulation (EC) No 1224/2009.

(33)

Northern albacore was overfished by some Member States in 2019, resulting in overfishing of the total Union quota and the application of a deduction by ICCAT, despite the fact that other Member States did not exhaust their individual quotas in the same year. In order to address this particular situation, Council Regulation (EU) 2021/92 (7) should be amended by establishing quotas for northern albacore for individual Member States in accordance with the principle of relative stability and on the basis of the total Union quota as determined by ICCAT for 2021 before any adjustments due to overfishing or underfishing by Member States are made. Quota adjustments should then be applied on the basis of Union rules on carry-over and deductions such as Regulation (EC) No 847/96, Article 15(9) of Regulation (EU) No 1380/2013 or Article 105 of Regulation (EC) No 1224/2009 in order to ensure that the total Union quota for northern albacore takes into account the adjustments made by ICCAT.

(34)

At its 2021 annual meeting, the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) adopted catch limits for target and by-catch species for the period from 1 December 2021 to 30 November 2022. Those measures should be implemented in Union law.

(35)

At its 2021 annual meeting, the Indian Ocean Tuna Commission (IOTC) revised the previously adopted conservation and management measures. Those measures should already be implemented in Union law. The revised catch limits for yellowfin tuna were confirmed by the IOTC Secretariat only after the end of the official period of objection on 17 December 2021. The confirmed revised catch limits for yellowfin tuna should be implemented in Union law later.

(36)

The annual meeting of the South Pacific Regional Fisheries Management Organisation (SPRFMO) will be held from 24 to 28 January 2022. The current measures in the SPRFMO Convention Area that are functionally linked to the TACs should therefore be provisionally maintained until the annual meeting is held and the TACs for 2022 are determined.

(37)

At its 2021 annual meeting, the Inter-American Tropical Tuna Commission (IATTC) adopted new conservation and management measures for tropical tunas for the period 2022–2024, which included a revision of the numbers of active FADs. Those measures should be implemented in Union law.

(38)

At its 2021 annual meeting, the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) set the annual TAC for southern bluefin tuna (Thunnus maccoyii) for a three-year period (2021 to 2023), at the same level as for the previous three-year period. That measure should be implemented in Union law.

(39)

At its 2021 annual meeting, the South East Atlantic Fisheries Organisation (SEAFO) decided to maintain most of the current TACs for the main species under its purview until its 2023 annual meeting. The TACs for Patagonian toothfish (Dissostichus eleginoides) and deep-sea red crabs (Chaceon spp.) were slightly reduced in accordance with the scientific advice. Those measures should be implemented in Union law.

(40)

At its 2021 annual meeting, the Western and Central Pacific Fisheries Commission (WCPFC) decided to maintain the current measures applicable in the WCPFC Convention Area. Those measures should be implemented in Union law.

(41)

At its 43rd annual meeting in 2021, the Northwest Atlantic Fisheries Organisation (NAFO) adopted a number of fishing opportunities for 2022 for certain stocks in subareas 1 to 4 of the NAFO Convention Area. Those measures should be implemented in Union law.

(42)

At its 8th meeting in 2021, the Southern Indian Ocean Fisheries Agreement (SIOFA) maintained the TACs adopted in 2020 for the stocks covered by that Agreement. Those measures should be implemented in Union law.

(43)

As regards the fishing opportunities for snow crab (Chionoecetes spp.) around the area of Svalbard, the Treaty of 9 February 1920 relating to Spitsbergen (Svalbard) (‘the 1920 Treaty of Paris’) grants equal and non-discriminatory access to resources around Svalbard for all parties to that Treaty, including with respect to fishing. The view of the Union concerning that access, as regards fishing for snow crab on the continental shelf around Svalbard, has been set out in several notes verbales to Norway, the latest of which dated 26 February 2021 and 28 June 2021. In order to ensure that the exploitation of snow crab around Svalbard is made consistent with such non-discriminatory management rules as may be set out by Norway, which enjoys sovereignty and jurisdiction in the area in accordance with the relevant provisions of the United Nations Convention on the Law of the Sea and the 1920 Treaty of Paris, it is appropriate to fix the number of vessels that are authorised to conduct such fishery. The allocation of such fishing opportunities among Member States is limited to 2022. It is recalled that, in the Union, primary responsibility for ensuring compliance with applicable law lies with the flag Member States.

(44)

As the discussions with Norway on equal and non-discriminatory access to Svalbard waters for Union fleets fishing for cod (Gadus morhua) in that area are ongoing and should be concluded in the beginning of 2022, it is appropriate that the Union establishes for the first quarter of 2022 a provisional Union quota. The level of that provisional quota should be fixed at 4 500 tonnes, taking into account the seasonality of the fishery. The quotas should be allocated to the Member States in accordance with Council Decision 87/277/EEC (8) subject to the adaptations necessary due to the withdrawal of the United Kingdom from the Union and due to the ratio of the level of the provisional Union quota to the Union share of the stock.

(45)

In accordance with the Union’s Declaration addressed to the Bolivarian Republic of Venezuela on the granting of fishing opportunities in Union waters to fishing vessels flying the flag of Venezuela in the exclusive economic zone off the coast of French Guiana (9), it is necessary to fix the fishing opportunities for snapper available to Venezuela in Union waters.

(46)

Given that certain provisions should be applied on a continuous basis, and in order to avoid legal uncertainty in the period between the end of 2022 and the date of entry into force of the Regulation fixing the fishing opportunities for 2023, the provisions of this Regulation concerning prohibitions and closed seasons should continue to apply at the beginning of 2023 until the entry into force of the Regulation fixing the fishing opportunities for 2023.

(47)

In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission to authorise individual Member States to manage fishing effort allocations in accordance with a kilowatt days system; to grant additional days at sea for the permanent cessation of fishing activities and for enhanced scientific observer coverage; and to establish spreadsheet formats for the collection and transmission of information on transfers of days at sea between fishing vessels flying the flag of a Member State. The Commission should exercise those powers in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (10).

(48)

In order to avoid the interruption of fishing activities and to ensure the livelihood of Union fishers, this Regulation should apply from 1 January 2022, except for the provisions on fishing effort limits, which should apply from 1 February 2022, and certain provisions on particular regions, which should have a specific date of application. For reasons of urgency, this Regulation should enter into force immediately after its publication.

(49)

Certain international measures that create or restrict fishing opportunities for the Union were adopted by the relevant regional fisheries management organisations (RFMOs) at the end of 2021 and became applicable before the entry into force of this Regulation. The provisions that implement such measures in Union law should therefore apply retroactively. In particular, as the fishing season in the CCAMLR Convention Area runs from 1 December to 30 November, and as certain fishing opportunities or prohibitions in the CCAMLR Convention Area are laid down for a period starting from 1 December 2021, the relevant provisions of this Regulation should apply from that date. Such retroactive application does not prejudice the principle of legitimate expectations as it is forbidden for CCAMLR members to fish in the CCAMLR Convention Area without authorisation. Moreover, in accordance with ICCAT rules, Member States should ensure that their vessels do not deploy FADs during the 15 days before the start of the closure period, i.e. from 17 December 2021 onwards.

(50)

In accordance with the procedure provided for in the Sustainable Fisheries Partnership Agreement between the European Union, of the one part, and the Government of Greenland and the Government of Denmark, of the other part, and the Protocol implementing that Agreement (11), the Joint Committee has established the level of fishing opportunities available for the Union in Greenland waters in 2022. Those measures should be implemented in Union law.

(51)

In 2021, the Union, the United Kingdom and Norway held trilateral consultations on six shared and jointly managed stocks in the North Sea area, with the aim to agree on management of those stocks including the fishing opportunities for the next year. Those consultations were conducted between 28 October and 10 December 2021, on the basis of the Union position agreed by Council. The outcome of the consultations was documented in an Agreed Record, signed by the Head of Delegations of the Union, the United Kingdom and Norway on 10 December 2021. It is therefore proposed to set the relevant fishing opportunities at the level agreed with the United Kingdom and Norway, together with the other provisions of the Agreed Record.

(52)

In 2021, the Union and Norway held bilateral consultations on two shared and jointly managed stocks in the Skagerrak area, with the aim to agree on management of those stocks including the fishing opportunities for the next year, as well as exchanges of fishing opportunities. These consultations were conducted between 8 November and 10 December 2021, on the basis of the Union position agreed by Council. The outcome of the consultations was documented in three Agreed Records, signed by the Head of Delegations of the Union and Norway on 10 December 2021. It is therefore proposed to set the relevant fishing opportunities implementing the agreed record with Norway, together with the other provisions of the Agreed Record.

(53)

The fishing opportunities for North Sea cod should be established in order to ensure a level playing field for Union operators and to provide for the recovery of that stock. Functionally linked measures jointly agreed with the United Kingdom and Norway should be maintained to allow for the recovery and long-term sustainable management of the stock.

(54)

ICES noted in 2019 that the herring (Clupea harengus) catches for ICES division 3a should be as close to zero as possible given that without additional area or time restriction on the herring fishery, a catch of western Baltic spring-spawning (WBSS) herring would be inevitable. Recent information by ICES indicates the increasing intermixing of WBSS herring with North Sea herring in the Skagerrak and North Sea, where the majority of WBSS herring catches now occur in the Skagerrak and to a lesser extent in the eastern North Sea.

(55)

In the Agreed Record from the bilateral consultations between the Union and Norway for Skagerrak, the Union commits to limit its actual catches in the Skagerrak to 969 tonnes, while Norway agreed to transfer at least 95 % of its quota to the North Sea to protect WBSS herring. Accordingly, it is proposed to limit the overall catches of C (HER/03A.) and D (HER/03A-BC) fleets for the relevant Member States by adding a special condition footnote to the TAC tables of those quotas, while maintaining the level of the quotas in the tables to reflect the relative stability and to regulate the associate inter-area flexibility (IAF). In the case of Norway, the maximum actual catches that could take place in Union waters of ICES division 3a would correspond to 167 tonnes (5 % of its quota).

(56)

According to paragraph 13.11 of the Agreed Record from the bilateral consultations between the Union and Norway for Skagerrak, Norway and the Union should be able to fish up to 100 % of their Skagerrak herring quota in the North Sea in order to protect WBSS herring. Pending the conclusion of the bilateral consultations with the United Kingdom for 2022, it could not be confirmed on 20 December that the IAF into United Kingdom waters for 2022 for HER/03A would be maintained. Therefore, it is necessary to make explicit that IAF into United Kingdom waters would not be applicable in the relevant footnotes of the C fleets until the Union and the United Kingdom agreed on such flexibility in the bilateral consultations between those two parties.

(57)

In paragraph 13.12 of the Agreed Record from the bilateral consultations between the Union and Norway for Skagerrak, the Union announced its intention to use certain flexibility in the North Sea areas 4a and 4b equal to the Union part of 5,7 % of the A fleet level, or 21 038 tonnes.

(58)

The Union held bilateral consultations annually with the Faroe Islands on the exchange of quotas and reciprocal access for 2022. Those consultations did not lead to the conclusion of an agreement in 2021.

(59)

Under Article 498(2) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (12) (‘Trade and Cooperation Agreement’), the Union and the United Kingdom are to hold annually consultations to agree, by 10 December of each year, the TACs for the following year for the stocks listed in Annex 35 of the Trade and Cooperation Agreement. Under Article 499(2) of the Trade and Cooperation Agreement, if such TACs are not agreed on 20 December, the Parties are to set provisional TACs.

(60)

The bilateral consultations with the United Kingdom were concluded on 21 December. This was too late for the outcome to be included in this Regulation, taking into account that it should apply from 1 January 2022. The Council should therefore, in full respect of the United Nations Convention on the Law of the Sea and rights and obligations of the coastal states as well as their sovereignty and jurisdiction, fix provisional TACs to be fished in Union and international waters, and waters to which the Union fishing vessels are granted access by third countries. The outcome of the consultations under Article 498 of the Trade and Cooperation Agreement, as expressed in the Written Record signed on 21 December 2021, should be reflected in an amendment to this Regulation, which should be adopted as soon as possible.

(61)

The provisional TACs should aim to ensure legal certainty for the Union operators and to ensure the continuation of sustainable fishing activities until such an amendment is adopted.

(62)

That approach is based on Article 499(2) of the Trade and Cooperation Agreement, which provides that, if a stock listed in Annex 35 to that Agreement or in Tables A and B of Annex 36 to that Agreement remains without an agreed TAC, each Party is to set a provisional TAC corresponding to the level advised by ICES, applying from 1 January. Pursuant to Article 499(3), (4) and (5) of the Trade and Cooperation Agreement, and by way of derogation from paragraph 2 of that Article, the TACs for special stocks are to be set in accordance with the guidelines that were to be adopted by the Specialised Committee on Fisheries by 1 July 2021.

(63)

Therefore, as a general approach, the provisional fishing opportunities for the Union should be based on the ICES advice for 2022. They should correspond to the Union share agreed under the Trade and Cooperation Agreement.

(64)

Without prejudice to, and taking into account the absence of, the guidelines for special stocks, the TACs for those stocks should be consistent with Article 499 of the Trade and Cooperation Agreement.

(65)

The provisional TACs should also comply with the applicable Union legal framework, in particular Article 4, Article 5(3) and Article 8 of Regulation (EU) 2019/472 and Article 4, Article 5(3) and Article 7 of Regulation (EU) 2018/973.

(66)

There are certain stocks for which ICES has issued scientific advice for no catches. If provisional TACs for those stocks were established at the level indicated in the scientific advice, the obligation to land all catches, including by-catches from those stocks, in mixed fisheries would lead to the phenomenon of ‘choke species’. In order to strike the right balance between continuing fisheries in view of the potentially severe socio-economic implications and the need to achieve a good biological status for those stocks, taking into account the difficulty of fishing all stocks in a mixed fishery at MSY at the same time, it is appropriate to establish provisional TACs for by-catches for those stocks. The level of those TACs should be such that mortality for those stocks is decreased and that it provides incentives for improvements in selectivity and avoidance of catches of those stocks. In order to reduce catches of the stocks for which by-catch provisional TACs are set, fishing opportunities for the fisheries in which fish from those stocks are caught should be set at levels that help the biomass of vulnerable stocks to recover to sustainable levels.

(67)

As a general approach, the provisional TACs should be based on a rollover of the TACs adopted by the Council for 2021, applying a 25 % ratio to the 2021 TAC levels, in order to cover the first quarter of 2022. That approach does not prejudge the definitive TACs.

(68)

The stocks for which a percentage higher than 25 % should apply should be determined on the basis of the analysis of the quota uptake in the first quarter of the last four years (2018–2021) by the Member States. Provisional TACs have been assessed in accordance with the scientific advice and taking into account the Union shares established in the Trade and Cooperation Agreement and do not exceed the definitive TACs agreed with the United Kingdom. Those increased provisional TACs should be in accordance with the ICES advice, the applicable Union legal framework and the Trade and Cooperation Agreement. They will enable Union fishing vessels to use the fishing opportunities to which they are entitled and of which they would be otherwise deprived, due to the seasonality of fishing of the stocks concerned.

(69)

This level is considered in principle to be sufficient for the Union fishing vessels at least until 31 March 2022.

(70)

The Union has consulted the United Kingdom on the approach for setting provisional TACs.

(71)

Northern European seabass is a stock shared with the United Kingdom, therefore provisional measures should be set for the first quarter of 2022 for this stock, pending the implementation of the outcome of the consultations with the United Kingdom.

(72)

In order to take into account the application of the landing obligation and to make quotas for certain by-catches available to Member States without a quota, a quota-exchange mechanism should be established for a number of stocks.

(73)

Seasonal closures for sandeel (Ammodytes spp.) fisheries with certain towed gear in ICES divisions 2a and 3a and in ICES subarea 4 should be continued to allow for the protection of spawning grounds and limitation of juvenile catches,