28.12.2007   

EN

Official Journal of the European Union

C 317/1

I-III

1-13

1-5

6-9

10-11

12-13

14-17

14

15-17

18-120

18-51

19-43

44-51

52-87

53-58

59-73

74-87

88-106

89-94

95-106

107-120

108-112

113-120

121-136

127-128

129-130

131-133

134-136

CFP

common fisheries policy

DG FISH

Directorate-General for Fisheries and Maritime Affairs

EEZ

exclusive economic zone

EFF

European Fisheries Fund

EU

European Union

GT

gross tonne, unit for measuring vessel capacity

ICES

International Council for the Exploration of the Sea

ISO

International Organization for Standardization

kW

kilowatt, unit for measuring vessel engine power

MAGP

multiannual guidance programme

STECF

Scientific, Technical and Economic Committee for Fisheries

TAC

total allowable catch

VMS

Vessel Monitoring System — system whereby vessels transmit their positions to the control authorities at regular intervals

I.

The Common Fisheries Policy was instituted in 1983 with the objective of sustainable exploitation of living aquatic resources. Setting total allowable catches (TAC) and national quotas in order to limit catch volumes is the cornerstone of this policy. The existence of complete and reliable data and the application of effective inspection and penalty systems are essential to the success of such an approach.

II.

The audit covered these three elements, and the results of testing at the Commission and in the six principal Member States (1) in fisheries terms led the Court to conclude that:

If this situation continues, it will bring grave consequences not only for the natural resource, but also for the future of the fishing industry and the areas associated with it.

III.

If the political authorities want the CFP to achieve its objective of sustainable exploitation of the fisheries resources, the present control, inspection and sanction systems must be strengthened considerably, in particular by implementing the following recommendations:

1.

Each year more than 4,4 million tonnes of fish and crustaceans with a total value of EUR 6 100 million are landed in Community ports (2). The fishing industry accounts for 230 000 jobs in the European Union (EU) and in certain coastal regions plays a major role for which there is no easy substitute.

2.

The Community fishery resources (3) are part of our common heritage. The objective of the common fisheries policy (CFP) is to ‘ensure exploitation of living aquatic resources that provides sustainable economic, environmental and social conditions’ (4). Even though the formulation was different, the concept of sustainable fishing has existed since the CFP was instituted in 1983 (5).

3.

Almost twenty years later the Commission could not avoid a negative assessment of the CFP, recognising that the policy had not attained its target and had ‘not delivered sustainable exploitation of fisheries resources’ (6). It stated that the failure was environmental, ‘many stocks are at present outside safe biological limits’, as well as economic and social, ‘the fisheries sector is characterised by economic fragility resulting from over-investment, rapidly rising costs and a shrinking resource base: this is reflected in poor profitability and steadily declining employment’.

4.

This diagnosis is confirmed by the latest figures available. Scientists at the International Council for the Exploration of the Sea (ICES), which is responsible for biological appraisal, have studied the exploitation rate for a number of stocks in the north-eastern Atlantic, the area where most of the Community fisheries resources are concentrated (7). Their work showed that 81 % of the stocks evaluated were over-exploited (8). From the economic viewpoint, the diagnosis of failure is supported by the Eurostat figures which showed a steady decrease in the volume of Community catches in the north-eastern Atlantic. Over the period 1995-2005 the overall decrease was 30 %.

5.

Moreover at the Johannesburg Earth Summit on sustainable development in 2002 the European Union subscribed to an action plan whose objectives included restoring all fish stocks to levels that can produce the maximum sustainable yield by 2015 at the latest.

6.

Fish is a renewable natural resource that is not easily quantifiable, and the reproduction and movement factors are not directly controllable. Catch limitation is therefore the only way of influencing stocks and ‘conservation, control and enforcement’ activity thus plays a key role in that its aim is, firstly, to define the arrangements for conserving and managing resources and, secondly, to ensure that the corresponding regulations are properly implemented.

7.

The European Union's main resource management measure is limiting catch volumes by setting total allowable catches (TAC) for the main species and dividing them between the various Member States in the form of quotas. The TAC are adopted annually by the Council on the basis of Commission proposals which, in turn, are based on scientific opinions (9). The latter provide an indication of the quantity of fish that can be taken without jeopardising the renewal of stocks. The data used by the scientists are the results of their own work, together with the catch quantities declared by the fishing industry.

8.

In the past, limitation of authorised catches was accompanied by a compulsory policy of reducing fishing fleet capacity. However, this policy was abandoned as self-defeating in the 2002 CFP reform. Today's Community measures simply set an upper limit on capacity and influence the fishing effort, i.e. the activity of the fishing fleet. The last element of the system is the ‘technical measures’. Basically, these ‘measures’ specify the characteristics of fishing gear and/or set minimum sizes for particular species.

9.

Although the various policies are defined at Community level, it is the Member States (10) who have general responsibility for ensuring effective control, inspection and enforcement of the CFP rules (11). This means they have total freedom with regard to arrangements for administering their quotas, organising inspections and the nature of sanctions to be applied in cases of infringement. For its part, the Commission is responsible for evaluating and controlling the application of CFP rules by the Member States and for facilitating coordination and cooperation between them.

10.

The Community contribution to ‘control and enforcement’ activity is limited to 46 million euro if only the appropriations directly allocated (12) to it are considered. The financial issues are far more substantial if one takes into account all the activities designed to deal, if only partially, with the consequences of the serious shortcomings of the resource management policy, especially the structural assistance for fisheries (837 million euro) and the international fisheries agreements (156 million euro).

11.

Moreover fish stocks are an asset which is the direct concern of the European Union in that the EU is responsible for managing them. The difficulties of evaluating that asset in monetary terms must not obscure the reality and significance of it.

12.

The base regulation is the Council Regulation on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (13). Chapter V specifies the objectives and the different Community means of action for achieving them.

13.

The provisions on the control system (14), on the one hand, and the collection of catch data (15), on the other hand, form part of older specific regulations. Other obligations relating to control are included in annexes to the annual ‘TAC and quota’ regulations (16) and in the regulations establishing recovery measures or multiannual plans for the sustainable exploitation of specific stocks (17).

14.

Limitation of catch volumes, by setting TAC and quotas, is the cornerstone of the Community policy for the management of the fisheries resources. The existence of complete and reliable data and the application of effective inspection and penalty systems are essential to the success of such an approach. The Court therefore deemed it appropriate to perform an audit that aimed to answer the following question:

‘Are the Commission and the Member States taking the necessary steps for an effective system of control, inspection and sanctions for the conservation of fisheries resources?’

Four specific audit objectives were investigated:

15.

The audit work focused mainly on analysis of data collection, inspection and sanction systems, and was carried out at Commission headquarters and in the Member States. Audit evidence was collected and examined by means of interviews and analysis of documents and data. In order to supplement, test and cross-check their knowledge of the system the auditors carried out a series of tests of control on catch records, on the one hand, and inspection reports on the other. In the absence of specific regulatory requirements the criteria adopted were the standards recognised by international organisations and generally applicable to this area (18).

16.

The basis on which these six Member States were selected for the audit was the size of catch volumes and the value of their landings. The Member States in question were Denmark, Spain, France, Italy, the Netherlands and the United Kingdom, which together account for almost 70 % of catch volumes and more than 80 % of the value of landings (19). On-the-spot visits took place between April and November 2006.

17.

This report is being published almost five years after the publication of the last general regulation on the CFP, at a time when the Commission is preparing to begin the recasting of the ‘control’ regulation with a view to presenting the text of a proposal to the Council in 2008.

18.

The basis for the TAC and quota system is catch quantity limitation. The quality of its implementation depends on the existence of, firstly, a recording and validation system (see Annex) that provides complete and reliable data, and secondly, an effective system for monitoring that data, in order to avoid quota overruns. However, neither of the systems mentioned, taken as a whole, met these criteria.

19.

The national systems for collecting, validating and compiling catch data are affected by numerous shortcomings, some of them serious, so that the quality of the data forwarded to the Commission is unreliable.

20.

Quota uptake monitoring relies on a declaration system fed via three main types of document completed by fishermen or first buyers: logbooks (20), landing declarations (21) and sales notes (22). These documents, or copies of them, as appropriate, must be forwarded to the authorities of the flag Member State and/or Member State of landing and/or of first sale: up to three Member States may thus be involved. The Member State of landing is always the one responsible for forwarding the catch data to the Commission and may, therefore, be a different State from the one that holds the quota from which the catches will be deducted (the flag Member State).

21.

The conditions for establishing the declaration data, as laid down by Community regulations, are the first weak point in the system. They do not, in fact, ensure that the data obtained are as accurate and precise as possible:

22.

The Commission was aware of these weaknesses and for some specific fisheries undertook to introduce special provisions, with the aim of remedying some of the shortcomings. For example, within the framework of recovery plans, the tolerance margin was reduced to 8 %, and weighing at auction and submission of the logbook copy immediately on entering port were made obligatory. Some Member States went further and extended or generalised this type of provision.

23.

In addition, a Regulation published in December 2006 (26) provides that paper declarations are, in part, gradually to be replaced by an electronic declaration system. This should save time and produce gains in terms of reliability and cost. Furthermore, the obligatory transmission of logbook data before entering port will eliminate the control weakness associated with the period of 48 hours allowed for lodging the paper document. However, this obligation will only begin to be effective 24 months after the implementing procedures enter into force — and they still have to be drafted and approved.

24.

One country outside the EU, namely Norway, has instituted procedures that control sales operations more strictly and provide improved safeguards. Once the last catch has been taken, the fisherman forwards a detailed cargo list to a sales organisation. The cargo is then sold in an electronic auction the same day (27), before landing and compulsory weighing; the sales note is made out and signed by the buyer and the fisherman before the ship leaves the quay. The presence of the sale proceeds and the corresponding supporting document in the same place at the same time makes the inspectors' work easier.

25.

Quantities of fish, most of them already dead, are thrown overboard for either statutory (28) or economic (29) reasons. This phenomenon, estimated at 13 % for the north-east Atlantic zone (30), is not only a significant waste of the resource, but also entails a reduction in the quality of the information used by the scientists responsible for evaluating the state of fish stocks.

26.

In Norway, on the other hand, if a fisherman catches fish that he is not authorised to take, he is not allowed to throw them overboard. In order to make this obligation as economically neutral as possible for fishermen, the latter receive a small proportion of the proceeds of the sale of these ‘illegal’ fish to cover their costs and the remainder is transferred to public funds.

27.

Firstly, in some Member States some fishing activities were completely outside the catch declaration data collection system:

28.

Secondly, some Member States had not yet integrated collection of one or another of the three key declaration documents into their information systems, even though this has sometimes been obligatory for more than 20 years:

29.

Furthermore, the collection systems in place in the Member States did not always allow missing documents to be identified and requested:

30.

Lastly, delays in the collection and validation of data may also adversely affect its completeness. This applies where catches are not validated before the final date for forwarding final figures for the previous year to the Commission. Several anomalies of this type were discovered:

31.

The Community Regulations (35) require Member States to establish a validation system that includes cross-checks and validation of the data obtained from the various obligatory declarations and VMS data. The Regulations also provide that each Member State is to create a database in order to facilitate these checks, but they specify neither the nature nor the scope of the validation checks to be carried out.

32.

No Member State had a fully integrated validation system, i.e. that allowed all declaration data of a similar type to be checked automatically and systematically:

33.

Moreover, in all the Member States visited, with the exception of the Netherlands, any figures obtained from counts carried out during physical inspections were not included in the system for validating catch declarations, even though they are, a priori, more reliable than those in the declarations.

34.

In all the countries visited, cross-checks were insufficiently documented for it to be possible to verify whether they were actually carried out and whether anomalies identified had been the subject of appropriate follow-up.

35.

In France the validation system is weakened by legal considerations. There is an ongoing debate within the national administration about the statistical nature (or otherwise) of declaration data. Also, in the absence of legal certainty, inspectors are not systematically notified when deviations in excess of the tolerance margin are detected by the departments responsible for processing catch data.

36.

Finally, in all the Member States visited, shortcomings in the validation systems made it possible for the Court to discover declaration anomalies (38) that had not been detected or dealt with.

37.

The lack of inter-operability and inter-connection between the different national systems for collecting catch data reduces the opportunities for checking, and thus limits the extent of the validation systems' effectiveness. For example, in the case of first sale in a country other than the flag state or country of landing, it is not possible to perform an automatic control by cross-checking the sales note data, on the one hand, against the data in the logbook and the landing declaration on the other hand (39).

38.

TAC and quotas are set in tonnes expressed as live-weight equivalent (LWE), i.e. whole fish at the time of catch. On the other hand, in the declaration documents used as reference material for monitoring catches (40), it is the net weight that is used. The difference between the two units is mainly due to the fish being cut up on board ship. Conversion factors are available for converting from one set of units to the other. They are based on long established data (41) which were never rigorously validated, and often differed from one Member State to another. The result is lack of precision in validated catch figures and unjustified, and sometimes significant, differences between the tonnages used to monitor quotas, depending on whether landing took place in one country rather than another (42).

39.

The traceability of data was not assured in two of the countries visited, that is to say, it was not possible to verify whether the consolidated data forwarded to the Commission actually corresponded to the sum of the individual validated data. This is a major anomaly, since it is not possible to make the link between the data used for quota monitoring and the data appearing in individual declarations:

40.

None of the Member States visited had carried out a comprehensive audit of the catch data collection and validation systems to evaluate the quality of the IT applications. Similarly, the data produced by the systems and forwarded to the Commission had never been subject to a procedure involving certification by an independent body.

41.

In the original version of the Regulation on control (45), however, it was stipulated that in the year following the entry into force of the Regulation, each Member State was to submit to the Commission a report describing the way in which data are collected and verified, and specifying the reliability of such data. This obligation was not retained in later versions of the text (46).

42.

The Commission is aware of the unreliable quality of the data that it receives (47), and it has already said so publicly.

43.

Nevertheless it is these data of unreliable quality that are being used by the Commission in trying to prevent and, where appropriate, penalise quota overruns.

44.

As the Member States have primary responsibility for managing and monitoring their quotas, it is they who must take the necessary steps to avoid quota overruns, if necessary by closing the fisheries concerned. It is for the Commission, for its part, to verify that the Member States fulfil their obligations. For this purpose it has the possibility of halting fishing for a particular stock on its own initiative (48).

45.

There are a number of shortcomings in the information system through which the Commission receives monthly the catch data prepared by the Member States. Firstly, as stated above, the quality of the information forwarded is unreliable. Secondly, not all Member States systematically forward their reports within the specified deadlines, thereby reducing the Commission's scope for reaction. Moreover, since the information is cumulative over the year, it is possible neither to test the consistency of data from one year to the next over specified periods, nor to identify processing delays. Lastly, in the absence of some simple logical tests it is not possible to identify even gross misstatements in declarations immediately (49).

46.

Data are forwarded to DG Fish as part of fisheries policy implementation, but the Commission does not cross-check them against similar data received through Eurostat (50), which in some cases are significantly different.

47.

Since 1999 the Commission has had a right of access to duplicates of national IT files (51). This facility should enable it to evaluate the quality of the data forwarded to it. It was not until 2007, however, that it sent its first request on the subject of catch data to the Member States. The Commission attributes the low utilisation of this facility to the fact that its control and inspection units do not have sufficient staff with real data analysis, processing and control skills.

48.

For each of the stocks subject to quota (52) the early warning and monitoring system established by the Commission consists of automatic comparison of quota totals and reported catches. When the uptake level reaches a predefined limit, a warning notice is sent to the Member State concerned, inviting it to forward information about the action that it intends to take.

49.

The delays affecting catch declarations and the monitoring of quota trading between Member States, together with the complexity engendered by the existence of special conditions (53), possibilities for compensation, carryovers or proportionate deductions the following year and under various conditions, as well as the low volume of human resources assigned to this procedure, all combine to weaken the effectiveness of this procedure. In 2005, the system did not prevent 26 quotas from being officially exceeded, 11 of them significantly so (54).

50.

The Commission has the right to close a fishery on its own initiative (55). In practice, because of the necessity of assembling sufficient evidence to provide assurance that a quota has been used up, the scope of this provision is confined to stocks involving a small number of ships and landings. In addition, because of the desire to avoid any legal risk, the Commission sets a very high confidence level as a preliminary to action, thereby deferring the date of its decision and hence reducing the effectiveness of the measure.

51.

In conclusion, quota monitoring is deficient because the data on which it is based are of doubtful quality, subject only to limited checks by the Commission and without any real possibility of coercive action. Furthermore, administrative checks, even if they are efficient, do not always guarantee the substance of the information in declarations. They must be supplemented by physical inspections.

52.

The success of the policy on the sustainable management of fisheries resources depends on effective application of the various regulatory provisions. That presupposes the existence of effective control and inspection systems capable of preventing and detecting infringements. This requires general reference standards, adequate inspection pressure, and optimisation of inspection activities. None of these three conditions could be substantiated.

53.

Community legislation places an obligation on Member States to take the necessary measures to implement effective control and inspection of CFP rules (56). However, no guideline as yet defines these concepts.

54.

After the reform of the CFP in 2002, in the recovery plans in particular, the Commission added inspection standards, quantitative control objectives and obligations on the existence of national control programmes to the legislation. However, these are still limited to specific cases, and there is a risk that the multiplication of such requirements will merely lead to overlapping and confused obligations that cannot easily be administered and adhered to without significantly weakening the level of control on fisheries that are not targeted by these plans.

55.

In the absence of common standards, each Member State has implemented its own system in its area of responsibility, with its own characteristics. These multiple national approaches have resulted in varying procedures and practices. This diversity gives operators the opportunity to criticise practices which they consider discriminatory and to question the relevance of the CFP, thereby making them less inclined to observe the rules.

56.

The task of the Commission is to evaluate and monitor the application of the CFP rules by Member States (57) and, in particular, the way in which they discharge their obligations to implement effective control and inspection systems. The results of their work are published in triennial reports (58).

57.

Having no legislative norms at its disposal, and not having developed universally accepted standards, the Commission has not carried out general evaluations of the systems in place in the Member States. Its inspection work has tended to focus on those procedures in the national systems that are the subject of specific legislative norms, as the only way of reaching conclusions that are viable in legal proceedings. However, this approach does not allow it to form an opinion of the overall effectiveness of the inspection and control systems that each Member State is obliged to set up under the terms of Community legislation.

58.

For its part, the Court used the standards applicable to any control system (59) as the basis for its evaluation of the effectiveness of the inspection and control systems of the various Member States visited. These standards fall into two large categories: those which provide adequate overall inspection pressure and those which ensure that inspections are effectively targeted.

59.

Every control system, in order to be effective, needs a minimum level of physical inspection aimed at checking on the ground that regulations are being observed. This level must be evaluated from the point of view of both quantity and quality. This requires definition of the minimum characteristics of an inspection, monitoring of inspection activity and tests of the reality and quality of inspection operations.

60.

As stated above, the concept of inspection is not defined in Community law. The term ‘inspection’ can, therefore, equally refer to a check on a fishing licence, which takes a few minutes, or to an operation taking place over several days, involving numerous inspectors, and including an exhaustive inspection of cargo, fishing gear and all documentation. Moreover, this situation allows some Member States to include in their control statistics inspections that are not directly related to compliance with the provisions on resource conservation but which concern, for example, health or safety conditions.

61.

Not every check has to be exhaustive in order to be useful. To be effective, however, each inspection, depending on its nature, must have certain features. For example, a landing inspection where the inspectors are not present from the start to the finish of the operation and do not check the contents of the hold at the end of their work, cannot be used as the basis for an opinion on the accuracy of the catch quantities declared.

62.

Not all Member States have actually defined the criteria necessary for each of the main types of inspection to be effective. It was not until 2007 that the Commission took such a step, by defining the criteria to be met by national inspections if they are to be counted as such in its triennial evaluation reports. However, the weakness of the information systems in place in the Member States could make identification and counting of the inspections that meet these criteria problematic.

63.

Proper documentation of inspections is essential. Firstly, it allows verification of the individual quality and scope of the checks carried out, and it then becomes a vital factor as regards the effectiveness of any action taken in cases of infringement.

64.

Community Regulations do not provide model inspection forms for use by all inspectorates (60). In the absence of standardised practice, however, this would provide greater transparency and facilitate cooperation between the various inspection bodies in all the Member States.

65.

In the Member States, the Court's audit identified the following weaknesses with regard to the documentation of inspection work:

66.

Centralised recording of all inspection reports in a computerised database is essential. This in itself, by facilitating the process of tracing and using data, allows a global assessment of inspection activity, and of its volume and results in particular.

67.

In this area also, Community law has not defined any obligations or standards, leaving each Member State to develop (or not develop) the system of its choice.

68.

At the time of the Court's audit visits, Spain, France, Italy and the United Kingdom did not have any centralised systems for recording inspection reports.

69.

An effective control system depends on the existence of a quality control system providing assurance that the work performed complies with the applicable standards on the subject. Although all the countries visited review work that results in proposed sanctions, review of other inspection reports is non-existent, which prevents the identification of certain inspection anomalies and prevents remedial action.

70.

In five of the six Member States visited, the Court noted cases where infringements had been found but the follow-up action provided for in the procedures had not been taken, and the reasons for this decision had not been documented. In the sixth, Italy, this was not a possibility, since inspections are documented only if they result in an infringement being found.

71.

The number of inspectors and the proportion of their activity devoted to fisheries policing must be sufficient to provide a satisfactory volume of inspections and constitute a deterrent presence. However, it is not possible to establish universal norms on this aspect, because of variations in local circumstances (62).

72.

Nevertheless, by the end of the audit, the inadequacy of the volume of inspection activity was recognised or recorded in several Member States:

73.

In France and Italy, by contrast, it was not possible to form a judgement of the volume of activity devoted to fisheries policing by some inspection units. In fact, these units performed control duties in other fields and lacked an adequate analytical tool and were thus unable to provide precise, verifiable information about their fisheries control activities (see paragraph 83).

74.

In addition to adequate overall inspection pressure, the effectiveness of a control system requires optimum use of the available resources.

75.

Sound knowledge of the various fishery activities, the actors involved, infringements found and penalties imposed in the past is essential for the establishment of sound risk analysis, the definition of a suitable control strategy and the preparation of a relevant programme.

76.

Similarly, at the operational level, the effectiveness of inspections depends on the inspectors' ability to select from different potential control targets the one that is most interesting in view of its characteristics (63). To achieve this, it is essential to have databases containing the various types of information and data that is reliable, complete and up-to-date. Lastly, each inspector must have immediate direct access to them from the place of inspection.

77.

In some cases, Member States did not have any information system for collecting, archiving and retrieving data:

78.

In other cases the systems were not accessible to all personnel who might need them:

79.

Most Member States did not carry out a risk analysis leading to a formal strategy document that identified inspection priorities and could be used as the basis for a rational allocation of resources, particularly as regards the cost/benefit aspect of inspections. Even where general inspection programmes existed, they did not always specify the resources to be deployed and the quantified objectives to be observed.

80.

In this situation, it is not possible to ensure a correct balance between the type of resources deployed, the programmed inspection tasks, and the principal inherent risks of the fishing activities carried out in the area for which a particular Member State is responsible. In Spain, in the two regions visited, it was noted that a large part of the inspections concentrated on fishing activities with a relatively low rate of infringement.

81.

At the operational level, the absence of relevant targeting of inspections impaired the efficiency of inspections. In the United Kingdom, it was found that the inspectors had increased inspections of vessels where no infringement could be found, while at the same time other, nonetheless active and sizeable vessels had never been inspected.

82.

However, conducting integrated inspections incorporating verification of businesses' accounting data, e.g. in joint inspections with the tax administration, was seen to be effective in several countries, such as Denmark, the Netherlands and the United Kingdom. These inspections in fact showed up inconsistencies between the data forwarded to the fisheries administrations and management data, particularly in those businesses which combined fisheries activity with that of first buyer. However, in the absence of statutory requirements this approach is still marginal.

83.

The multiplicity of inspecting bodies may increase the risk of overlap or of an area of activity falling into a ‘blind spot’ when their areas of operations are allocated, and may lead to rigid structures which limit the scope for redeploying inspection resources in the light of changing priorities:

84.

Performance measurement is one of the basic components of an effective inspection system. Indicators need to be put in place so that the quality of the overall control system can be evaluated, as well as the validity of the approaches taken in individual areas.

85.

Among the Member States studied, only one had developed a true performance indicator, but the quality of the indicator was affected by the weakness of the system for monitoring inspections (65). In other cases, the evaluation indicators employed only measured overall operational activity (66) and supplied no information about specific regions or fisheries. It was therefore not possible to form an opinion regarding the effectiveness of control and inspection activity.

86.

A Community fisheries control agency, with its headquarters in Vigo (Spain), has been created ‘to organise operational coordination of fisheries control and inspection activities by the Member States and to assist them to cooperate so as to comply with the rules of the Common Fisheries Policy in order to ensure its effective and uniform application’ (67). Contrary to what its name might suggest, the Agency has no powers of its own in relation to fisheries control.

87.

Since the first work programme adopted by the Agency was the programme for 2007, it is still too soon to judge the eventual impact of its activities on the various weaknesses identified during the audit. However, it is already possible to regret that the power of the so-called Community inspectors (68) is limited to action at sea and that cooperation as regards following up and penalising offences lies outside the Agency's sphere of competence.

88.

An effective system for following up infringements and imposing penalties presupposes that every presumed offence is dealt with and that when a penalty is imposed, it serves as a deterrent. This applies equally to infringements by operators subject to the jurisdiction of national authorities and Member States whose failings have been identified by the Commission.

89.

National systems for following up offences and imposing penalties must, according to Community law, ensure that every infringement is subject to appropriate follow-up proceedings leading, if necessary, to a deterrent penalty (69). Weaknesses at both the procedural level and in the sanctions imposed are a hindrance to the observance of this obligation.

90.

In some cases, the applicable procedures are not implemented because they are deemed too expensive by the responsible authorities, or are not applied for legal reasons, which prevents any convictions:

91.

In several Member States visited, there is no central computerised repository for all the information relating to fisheries offences and perpetrators of them. For this reason, prosecuting authorities are not able to base their decision on complete knowledge of the previous history. Moreover, due to the lack of information about the penalties awarded for each type of offence it is not possible to evaluate the effectiveness of inspection activities, and that same lack is therefore an impediment to good strategic planning and appropriate targeting of inspections (see paragraph 63). In Spain, France, Italy and the United Kingdom there is no database that contains all sanctions imposed in the area of fisheries. In Denmark, it has only existed since 2004.

92.

The lack of Community integration and harmonisation impairs the effectiveness of sanctions. An initial difficulty is that of effectively applying the penalty imposed on a foreign national once he or she is beyond the jurisdiction of the State in which the offence was committed. A second is the difficulty, or even impossibility, of the authorities in one country taking into account infringements recorded by another Member State, whether for reasons of access to information or for legal reasons.

93.

A catalogue of measures to be applied by Member States in relation to serious infringements (71) was to be drawn up by the Council, but has not yet been created. To date, the Commission has still not presented the Council with a proposal to this end.

94.

Nevertheless, even without precise tools, the Commission was able to conclude that overall the penalties imposed were not a good deterrent. It stated it publicly in these terms, ‘the amount paid by the fisheries industry as a consequence of sanctions imposed […] is roughly equal to two thousandths of the […] landing value. Such an amount entails the risk that the fishing industry may consider penalties imposed for infringements to the CFP rules just as an ordinary running cost for the enterprise and see no real incentive to be compliant’ (72).

95.

In order to get Member States to respect their obligations, the Commission may either have recourse to the Court of Justice and the general procedure for failure to fulfil an obligation, or it may use one of the procedures specific to the CFP. Each of these procedures, however, has features that make it difficult to use and effective only exceptionally.

96.

Proceedings for failure to fulfil an obligation are inherently long. In fact, before they reach the Court of Justice the observed failure must be the subject of a formal notice, then of a reasoned opinion. Each of these stages not only requires extensive preparatory work and formal consultation between the relevant departments of DG Fish, but also involves the Commission's legal service. The delays inherent in each of these tasks are compounded by the fact that decisions on infringements are taken by the Commission only once in every quarter. In total, for fisheries as for other areas, proceedings for failure to fulfil an obligation take several years.

97.

Furthermore, proceedings for failure in the implementation of control, inspection or sanctions procedures require a significant volume of inspection work on the part of the Commission. Due to the absence of easily verifiable assessment criteria, the Commission has to increase the volume of evidence in order to demonstrate that the failure is both general and permanent. This requires numerous missions; especially as in practice Commission inspectors cannot officially record an infringement without national inspectors being present. All in all, the size of the task in fact makes it difficult to pursue more than one case of this type at a time (73).

98.

And lastly, a judgment of failure to fulfil an obligation (74) is not in itself effective, since the Member State's obligation is confined to taking the measures required to execute the judgment. In order to result in a financial penalty, the first judgment must be followed by a second one (75), for non-implementation of the provisions of the first one. For that the Commission must bring evidence that the failure has continued without any interruption since the first judgment.

99.

In practice, in the area of fisheries, there has only been one case in which a Member State was sentenced to pay a financial penalty (76). The judgment in question was delivered in 2005 for non-compliance with a 1991 judgment concerning a case in which the first infringements had been recorded in 1984, 21 years earlier.

100.

Nevertheless the impact of this one decision was very important. It allowed national authorities to impose within months the introduction and application of numerous procedures that had previously been absent or deficient, despite having been compulsory for many years, not only in the country fined but also in the other Member States against which similar proceedings were in progress.

101.

One of the specific lines of action available to the Commission is the possibility of taking preventive measures (77) where there a risk that fishing activities pose a serious threat to conservation of resources. But the difficulty of gathering the necessary evidence and observing the principle of proportionality have so far dissuaded the Commission from taking such action, especially as the effect of such a decision would be limited, with a maximum application period of six months.

102.

On the other hand, where it is found that previous quotas were exceeded (78), the Commission has the power to reduce the future fishing opportunities of the offending Member State (79). This possibility requires the Commission to obtain sufficient evidence that the final catch figures submitted by the Member States are erroneous. In practice it has been possible to implement this provision only once (80), on the basis of information obtained in national inspections of one of the Member States sanctioned.

103.

The Commission does not have the possibility of suspending aid allocated to a Member State under the CFP in case of failure to apply the control rules.

104.

Furthermore, it has never assessed the extent to which Member States have implemented the obligation imposed upon them to recover aid granted under the fisheries structural funds from beneficiaries who do not comply with CFP rules (81).

105.

Finally, in view of the weaknesses just described in the system of sanctions, it is not surprising that the Court was able to find serious inadequacies in Member States' application of measures aimed at sustainable management of fisheries resources, even though the Commission has been aware of this situation for several years.

106.

This situation is also linked to the fact that, following its inspection reports, the Commission does not formally ask national authorities to comment on the failings found and, where appropriate, present an action plan to rectify them.

107.

In addition to the weaknesses described above, the effectiveness of inspection and control systems is impeded by the existence of a very high inherent risk associated with the existence of significant fishing overcapacity. This situation is, in fact, a strong incitement for the fishing industry not to observe the regulations, and, everything else being equal, the only way to achieve effective controls is to step up inspection resources and pressure of controls. Although the situation has been known about for many years, it has not been dealt with effectively.

108.

Overcapacity may be defined as a fleet's excess catch capacity relative to the level of catch that would allow the resource to be sustainably exploited. Despite the difficulties in measuring it, the finding of overcapacity in the Community fleet is highlighted in the Green Paper (82). According to the Commission, ‘What is clear, in any event, is that the fleet is currently much too large’ and ‘that the necessary reductions of fishing mortality for the prudent management of stocks should be about 40 % and in many cases much higher’.

109.

Overcapacity is a factor in over-fishing. It influences the behaviour of the industry and the legislator, by reducing the profitability of enterprises in the sector, which have to bear the costs associated with the overcapacity of their means of production.

110.

The fishing industry is exposed to the temptation of exploiting its over-sized vessels to the full and to fish beyond the authorised limits. There is a risk of their underdeclaring their catches or throwing the less profitable part overboard (see paragraph 25).

111.

When the Council of Ministers adopts the TAC and quotas it acts as an arbiter between divergent short-term interests, environmental on the one hand, and socio-economic on the other. In doing so it may authorise catch quantities that are higher than those recommended by the scientists (see Table 3), in order to protect the immediate social and economic interests of those employed in the industry. Furthermore, the Council's choices are made without any means of evaluating objectively how the catch levels will impact on any of those interests.

112.

The first action aimed at reducing the overcapacity in the Community fleet goes back to 1986, the date at which the first multiannual guidance programme (MAGP) was put in place. This was followed by three other similar programmes setting ceilings for capacity or effort (83) for various segments of the Community fleet. However, the combined effects of over-modest objectives, management problems, and the use of structural funds for shipbuilding and modernisation resulted in the failure of these programmes. This led the Commission to abandon this approach in 2003.

113.

With the reform of the CFP in 2002, the European Community ceded its powers to the Member States as regards reducing fishing capacity and confined itself to provisions that aimed to control the fishing effort.

114.

Capacity reduction objectives have been replaced by the concept of reference ceilings which are expressed in capacity units and constitute maximum levels which national fleets may not exceed. These ceilings were set on the basis of historic levels and are only reduced in cases where vessels are decommissioned from the fleet with Community aid. This system does not oblige, or even encourage, Member States to reduce their overcapacity.

115.

Community action is now directed essentially towards limiting the fishing effort Since this is defined as the product of capacity (in GT or kW) times activity (days at sea), a reduction in it can be obtained by simply decreasing one of these factors, activity. In this case, overcapacity continues to have a direct bearing on the profitability of the fishing industry, which may even be tempted to compensate for its reduced activity by increasing its productivity and investing in technological equipment, such as sonar or more efficient fishing gear, which will de facto increase its effective fishing capacity.

116.

The statutory mechanisms for limiting fishing effort apply to an ever-increasing number of fisheries, making their implementation and control increasingly complex and problematic.

117.

Furthermore, measurement of fishing capacity in terms of tonnage (GT) and engine power (kW) has two major weaknesses. One is the inadequacy of the standard units used for evaluating the true catch capacity, and especially the productivity gains associated with advanced technology, which, according to the Commission, may be between 1 and 3 % per year, or even more in some fisheries (84). The other comes from the difficulty of actually measuring the data corresponding to these two units of measurement (85) consistently and accurately.

118.

Each Member State must also send an annual report to the Commission on the efforts it has employed to achieve a sustainable balance between fishing capacity and fishing opportunities (86). However, only some of them present an evaluation of their situation in terms of overcapacity. Moreover, different States use different methodological approaches. Consequently, the Commission does not have a precise picture of the imbalances that exist and has not, so far, verified the quality of the evaluations provided.

119.

The new European Fisheries Fund (EFF) grants aid to renew the engines of fishing vessels, provided that the rating of the new engine is, according to circumstances, lower than or equal to that of the old one. Knowing the problems of monitoring kilowatts, a provision like this could, in fact, lead to a real increase in fishing capacity.

120.

In conclusion, Community policies have not been able to end significant overcapacity in the European fleet (87). The current system of giving responsibility for managing capacity to the Member States and focusing Community action on fishing effort limitation does not include any measure of constraint which could lead to a reduction in this overcapacity. The problem of overcapacity therefore seems likely to persist in years to come and will continue to have a bearing on compliance with CFP rules in general, and TAC and quotas in particular.

121.

The incompleteness and unreliability of catch data prevent the TAC and quota system, which is a cornerstone in the management of Community fisheries resources, from functioning properly. The regulatory framework and the procedures in force guarantee neither the exhaustiveness of data collection, nor the detection of inconsistencies during validation. Nor is the Commission in an overall position to identify errors and anomalies in the data forwarded by Member States, and, to take all the timely decisions required to protect the resource (see paragraphs 18 to 51).

122.

The inspection systems do not prevent infringements and do not ensure that they are effectively detected. The absence of general standards has resulted in the existence of divergent national systems that neither ensure adequate inspection pressure nor optimise inspection activities. Furthermore, it actually limits the scope and effect of the Commission's work of evaluating national arrangements, and as a consequence limits the latter's capacity to form an opinion as to the overall effectiveness of the national systems (see paragraphs 52 to 87).

123.

The procedures for dealing with infringements found do not support the assertion that every infringement is followed up and even less that it is subject to penalty. Even when penalties are imposed, taken as a whole they prove to have very little deterrent effect. With regard to infringements of Community legislation by a Member State, the only instrument of proven effectiveness available to the Commission is an action before the Court of Justice for failure to fulfil an obligation. This however has certain features which limit its use and make it an insufficiently responsive instrument (see paragraphs 88 to 106).

124.

Overcapacity affects the profitability of the fishing industry and, in a context of decreasing authorised catches, is an incitement to non-observance of these restrictions and affects the quality of the data forwarded. After the failure of programmes to adapt fishing capacity, the current approach, based essentially on managing the fishing effort, is unlikely to resolve the problem of overcapacity (see paragraphs 107 to 120).

125.

In all, the Court's work has shown that, despite recent improvements, the control, inspection and sanction mechanisms in place are not capable of ensuring that the rules on managing the fisheries resources, and the TAC and quota system in particular, are effectively applied. This situation is all the more problematic in that the existing imbalance between capacity and fishing opportunities creates a context that is unlikely to promote spontaneous compliance with the regulatory provisions. After a significant downturn in landings in recent years, the continuance of this situation will inevitably have serious repercussions not only on the resource itself but also on the future of the fishing industry and the regions associated with it.

126.

If the political authorities want the CFP to achieve its objective of sustainable exploitation of the fisheries resources, the present control, inspection and sanction mechanisms must be strengthened considerably, in particular by implementing the recommendations listed below.

127.

In order to improve the quality of the catch data used for management of fisheries resources the systems for collecting, validating and monitoring catch data should also be improved. This presupposes that the Member States:

128.

This improvement also requires the Commission to:

129.

For the effectiveness and consistency of controls and inspections implemented by the Member States, and so that the Commission improves its knowledge and evaluation of them, the Member States must, where they do not yet do so:

130.

On the other hand, the Commission should:

131.

To ensure that penalties have a deterrent effect, Member States should remind the competent authorities that, before imposing a sanction, it is their duty to take into account, in accordance with European law, both the deterrent nature of the penalty in relation to the economic advantage which the operator derives from his offence and the seriousness of the damage that it has caused to the Community resource.

132.

In order to avoid the migration of offenders to Member States where infringements are punished less severely, it is desirable for the Council to encourage Member States to compare and harmonise the penalties imposed by, amongst other things, publishing a catalogue of measures applicable by Member States for the most serious infringements, as provided in the legislation (89).

133.

To reinforce the Commission's capacity to put pressure on the Member States, it is desirable that the Community legislator should ensure that the management measures adopted are verifiable; examine whether strengthening the powers of the Commission inspectors and broadening the mandate of the Community Fisheries Control Agency would be appropriate; and lastly introduce more responsive instruments of sanction such as, for example, the capacity to suspend payments of Community aid in the fisheries sector if a Member State fails to respect its control obligations.

134.

The efforts made by the Member States and the Commission in order to reduce the pressure of excessive fishing must be reinforced by setting ambitious targets for capacity reduction and adopting socio-economic measures to benefit populations which make their living by fishing.

135.

Since definition of appropriate measures requires a sound knowledge of the socio-economic realities of the fishing industry and the impact of decisions regarding catch limitation, the Commission must develop its information tools and analytical applications in this area.

136.

In addition to the technical improvements recommended for control, inspection and sanctions systems, the success of the CFP and the continuation of this activity can only be achieved through the awareness of all parties and by granting appropriate financial aid to facilitate the development of sources of income that are supplements or alternatives to exploitation of this natural resource.