A Tale of Two Reforms – CFP & CAP
An Analysis of the 2002 Review of the Common Fisheries Policy-
The death of British fishing
16 June 2002
Reform is in the air. Within months of each other, two of the major and longest established polices of the European Union – the Common Fisheries Policy (CFP) and the Common Agricultural Policy (CAP) – are to be subject to the reform process. In the case of the CFP, this is to be a “fundamental reform” while the CAP reforms are to be more modest, amounting to a mid-term review of the Agenda 2000 agreement reached in Berlin in 1999.
Both reforms are and will be critical to the EU. Both policies are widely regarded as having failed and the actions of the EU as they undertake their reforms will be carefully watched as indicators of whether (or not) the Commission and the Council can deal with the fundamental defects of their policies.
But the issues are by no means straightforward and the proposals for reform that are being offered are less so. Therefore, in these two papers, the backgrounds and natures of the reforms are explored and analysed. This first paper examines the CFP reforms.
Dr Richard North, aged 54, works in the European Parliament as Research Director for the Group of European Democracies and Diversities. He works closely with a multi-national group of MEPs, from Denmark, France, Holland and the British contingent from the UK Independence Party.
A former local government officer, and then food safety specialist, Richard came to EU politics though his increasing concern at the progressive intrusion of EU measures in his professional field. He widened his scope working for trade associations representing egg producers and small abattoirs and then through collaborating with author and Sunday Telegraph Journalist, Christopher Booker, with whom he has co-authored two books – The Mad Officials and The Castle of Lies.
Recently having published his own book, The Death of British Agriculture, Richard now specialises in agriculture and fisheries politics but covers the whole range of EU policy issues, in support of his MEPs in Brussels and Strasbourg.
Much of background reported in this paper is informed by Christopher Booker’s work on the CFP, about which he is an acknowledged authority. I have also relied for historical detail on Mike Holden’s book, The Common Fisheries Policy. For contemporary material and analysis, I am indebted to John Ashworth and Tom Hay, both of the Save Britain’s Fish campaign, and to my MEPs, Jeffrey Titford and Nigel Farage, and their staff, without whose support and encouragement a brutally difficult task would have long ago become impossible.
2. Background to the CFP
- Britain’s entry and the 200-mile limit
- Legal base for the CFP
- The fisheries management system
- Relative stability
- Enter Spain
- The first ten-year review
- Failure of the CFP
3. The Reforms
- The reform proposals
- The environment “card”
- Natura 2000
- Technical measures
- The 12-mile limit
- Control and enforcement
- Regional Advisory Councils
4. Analysis and Conclusions
- More Integration
- The problem for British politicians
Just over thirty years since the CFP was set in train, the fishing industry is in crisis, with some commercial fish species near extinction. To address this crisis, the EU Commission in May 2002 published a raft of reform proposals.
Although limited control over 12-mile fishing limits is to remain, there is to be a “new approach to fisheries management”, refocusing on a more long-term approach with “multi-annual programmes” for setting fishing quotas. This is to be accompanied by a reduction of “time at sea” of up to 60 percent, and the scrapping of an estimated 8,600 fishing boats - 8.6 percent of the EU’s 100,000 fleet. Additionally, the payment of subsidies to build vessels with one hand, while paying fishermen to scrap their boats with the other, is to end.
The “cuts” are not uniform. They are biased against northern states, in order to permit greater access for Spain to “community waters”. The UK is being required to scrap 23.1 per cent of its gross tonnage. Denmark faces a 27.3 percent reduction and Sweden 49.7 percent. Spain, by contrast, with the largest fleet in the EU, escapes with a cut of only 9.4 per cent, Greece with less than 2 percent and Italy 7.3 percent.
Behind the “headline” proposals, however, there is a whole raft of detailed measures. Some, which rely on the environmental powers added by the Maastricht and Amsterdam Treaties, have considerable technical merit and may be sufficient to halt the alarming decline in European fishing stocks. But, if adopted, they will also represent a major advance in the process of European integration - in three vital areas:
7 key aspects of the management of the CFP will pass from the Council of Ministers to the Commission;
7 the role of Member States in the enforcement of CFP rules will be weakened and the powers of the Commission will be greatly strengthened;
7 new “trans-border” Regional Advisory Committees will be appointed which will report to the Commission and thereby bypass the national authorities, diminishing the authority of Member States.
Overall, the proposals are so stacked against British interests that, if enacted, they will spell the end of Britain as a serious fishing nation and, effectively, the death of British fishing. Perversely, however, the fate of the British industry will essentially be the same if the reforms are not enacted, but in this event the whole of the “European” fishing industry will be similarly affected.
Thus, British politicians are being confronted with a choice. They must either accept proposals that may rescue European fish stocks, to the detriment of their fishermen and at the price of a massive increase in political integration, or risk a collapse of the entire European fishing industry. The only other alternative is “repatriation” of British fishing waters.
It is just over thirty years since the European Union’s Common Fisheries Policy (CFP) was set in train. Since then, the policy has been subject to ten-yearly reviews and is currently in the throes of its third. This event was heralded by the publication in May 2002 of a raft of Commission proposals detailing with what has been claimed to be “fundamental reform”.
Overlaying the normal publicity attendant on such occasions – not least that arising from a proposal to impose drastic cuts in the “community” fishing fleet, with those cuts falling disproportionately on the northern Member States - has been a further drama. This has been occasioned by the intervention of the Spanish commissioner and vice-president of the Commission, Loyola de Palacio. She is alleged to have pressured fisheries commissioner Franz Fischler into sacking his Danish director general, Steffen Smidt - the principal author of the reform package.
Smidt, in fact, had been the focus of Spanish wrath for some time, but the antipathy towards him has been but one facet of their broader dissatisfaction with the CFP, from which – as latecomers – their fleet has been partially excluded. In what has already been called by Le Monde “La guerre du poisson”, the scene is thus set for a major confrontation at fisheries council meetings. Already, under the Spanish presidency, the first clashes have occurred but, ironically, the real battles will be fought after the presidency passes to the Danes. Then the Spanish and, no doubt, others will try to carve out a more favourable deal for their fishermen. Since any gains will necessarily have to be balanced by losses, there promises to be a number of high level rows, for which the EU is justifiably famous.
While these may provide good copy and some entertainment for those not immediately involved, there is a great danger that political grandstanding will obscure the detail of the broader proposals. The even greater danger is that, while the politicians and the media concentrate on the “above the line” issues, like the respective shares of the diminished Community fish stocks, the bulk of the Commission’s proposals will go through “on the nod”, for want of proper scrutiny and understanding, followed – as usual – by British ministers arriving home to declare another “victory” for British fishermen.
Some of these proposals have considerable technical merit and there will be some praise for them. They may even be sufficient to halt the alarming decline in European fishing stocks. But they are so stacked against British interests that, if enacted, they will also spell the end of Britain as a serious fishing nation and, effectively, the death of British fishing. Perversely, however, the fate of the British industry will essentially be the same if the reforms are not enacted, but in this event the whole of the “European” fishing industry will be similarly affected. Thus, British politicians are being confronted with a choice. They must either accept proposals that may rescue European fish stocks, to the detriment of their fishermen, or risk a collapse of the entire European fishing industry.
And that is not their only problem. If adopted, the proposals will also represent a major advance in the process of European integration - in three vital areas. Firstly, key aspects of the management of the CFP will pass from the Council of Ministers to the Commission. Secondly, the role of Member States in the enforcement of CFP rules will be weakened and the powers of the Commission will be greatly strengthened. Thirdly, new Regional Advisory Committees will be appointed, devised apparently to “involve stakeholders more closely in fisheries management”. But these will operate on a “trans-border” basis and will report to the Commission, thereby bypassing the national authorities and diminishing the authority of Member States.
That the proposals should lead to further integration is not surprising. The CFP has always been more than a fishing policy. In addition to its objectives of achieving sustainable fishing and “avoiding undesirable redistributional effects on communities heavily dependent on fishing”, it is intended to contribute to “economic and social cohesion” - integration by any other name. After a thirty-year wait, the Commission is considerably closer to achieving this long-standing ambition.
Nevertheless, for all their integrationalist tendencies, there is nothing in the proposals that will require boats registered in EU Member States to fly the “ring of stars” flag, or to report directly to Brussels. They are much more subtle than that and, because they are cloaked by the promise of reform, more dangerous for so being. In this paper, they are explored and evaluated, and conclusions are drawn. But, to enable the reader to identify and highlight the key negotiating issues, and to put the more detailed proposals in context, the paper starts with an account of the background to the CFP and the current review.
2. The background to the CFP
Although European Economic Community (EEC), with the signing of the Treaty of Rome in 1957, brought with it the Common Agriculture Policy, no similar provision was made at the time for a common fisheries policy. There was reference in the Treaty only to a common market in “the products of… fisheries”, as distinct from the fisheries themselves. In fact, there was barely any interest in a fisheries policy, not least because the six founding countries of the EEC had control of very little fishing resource. Fishing limits then generally extended only to three miles and 90 percent of the catch by the original Six was taken from outside these limits, in international waters.
Britain’s entry and the 200-mile limit
However, events were to change the situation drastically. Firstly, in 1970, four new countries were about to apply for membership of the then Common Market: Britain, Ireland, Denmark and Norway – all with significant fishing resources. Secondly, concern had been growing over the unrestrained exploitation of fish stocks in international waters. For instance, in 1968, the levels of cod extracted from Newfoundland and Labrador waters had reached crisis point with a near-collapse in the fishery, while in 1972 Iceland extended its fisheries limit to 50 miles to exclude the UK distant water fleet, triggering the second of three disputes known as the “Cod Wars”.
Primarily to resolve this and the Newfoundland/Labrador issue, the United Nations Convention on the Law of the Sea (UNCLOS) had been convened in 1972 to discuss an extension of fishing limits to 200 miles. If, as was widely anticipated, 200-mile limits became the norm, this would bring massive new resources under the control of the Member States, original and prospective. And Britain’s waters in particular contained up to 85 percent of all the fish off western Europe.
The prospect of gaining access to these resources was too attractive to ignore and the Six set about rapidly constructing a scheme that would turn the separate fishing grounds of the Member States into a “common resource”. Therein lay the genesis of the CFP. A regulation was drafted and passed with such unseemly haste that it was only adopted in principle by the morning of 30 June 1970, just hours before the applications from the prospective members arrived.
Legal base for the CFP
Although some commentators latterly claimed that the legal base for the CFP was the same Article as that used to establish the common Agriculture Policy, the original regulations made no reference to it. Instead, the “basic regulation”, Council Regulation 2141/70, which set the CFP in train (later replaced by 101/76), relied for its legal base on Articles 7, 42, 43 and 235. The operative article was, in fact, Article 235, which allowed action if “one of the objectives of the Community and this Treaty has not provided the necessary powers”. The use of the “catch-all” provision clearly demonstrated the slender base on which the policy was determined.
But the key article was Article 7 which, in the application of the Treaty, prohibited “discrimination on grounds of nationality”. In the basic regulation, this was translated as:
Rules applied by each Member State in respect of fishing in the maritime waters coming under its sovereignty or within its jurisdiction shall not lead to differences in treatment of other Member States…
with the rider that:
Member States shall ensure in particular equal conditions of access to and use of the fishing grounds situated in the waters referred to… for all fishing vessels flying the flag of a Member State and registered in Community territory.
That was (and remains) the core of the CFP - giving all Member States the right of “equal access” to each other’s fishing waters, without discrimination as to nationality. By establishing it as Community law before the applications from the prospective members had arrived, the original Six prevented them from taking part in framing the policy. They would be required then to accept the policy, ex post facto, as part what is known as acquis communautaire - the established body of Community law – and be forced to hand over control of their fisheries to the EEC.
It is now a matter of record that the prospective members, particularly Britain and Norway, refused to accept this sleight of hand. Norway eventually refused to join the EEC because of the CFP. In Britain, Ministers of Edward Heath’s government initially promised the House of Commons that they would renegotiate the policy, but the Six refused to budge. In the event, time ran out. Accession negotiations had to be completed by the end of 1971 to allow Britain to join the Common Market on 1 January 1973, on which Heath had set his heart. Insistence on a new fishing deal threatened this timetable so, on Heath’s insistence, the then fisheries minister, Geoffrey Rippon, capitulated. Britain’s surrendered control of its fishing, right up to the beaches. The pill was sweetened with a derogation in the accession Treaty, allowing the UK and other countries to limit access to their waters out to 12 miles until 31 December 1982, but the surrender was otherwise absolute.
The fisheries management system
Then, as expected, the extension of fishing rights to 200 miles followed (except in the Mediterranean and the Baltic), this being formally adopted on 1 January 1977 by EEC member states, not long after a third “Cod War” between the UK and Iceland. However, these new areas under national control also came within the CFP and were subject to “equal access” provisions. British fishermen, excluded from traditional fishing grounds now under Icelandic control, were not to get any compensating benefit from their own waters.
In anticipation of the forthcoming extension, the Commission in October 1976 had offered proposals for the management of the fisheries, which included two central provisions for the management of access into the new areas. These were “total allowable catches” (TACs), relating to each of the main commercial species, and “quotas”. These concepts which were to become and remain the dominant issues in fisheries politics.
By any measure, the TACs were a political fudge. Having grabbed the resources in “community waters”, the Member States recognised that they were limited and thus acquired the problem of how to determine how many fish were available to catch, in order to share out the booty. With limited scientific data (and in some cases none at all) as to the populations of different fish species in different zones, they were thus forced to estimate (i.e, guess). Following protracted horse trading between the nations, the first TACs were agreed, which bore no known relationship to actual stocks available. But the negotiations set the pattern for what were to become annual rounds to determine the TACs for each forthcoming year.
If the TACs were a “fudge”, more so were the quotas, the chosen method for dividing up the spoils between Member States. Here, the Commission proposed, for what was to be the first ten-year review of the policy, a formula based on “historic catches” (sometimes known as “track record”) – the level of catch brought in by each member state fleet from the different fishing grounds. This proved unacceptable to Member States and another factor was added to the calculation – special provision for areas heavily dependent on fishing. The modification was accepted, later to become known as “vital needs” and then the “Hague Preferences”, following an elaboration of what these preferences were to be in a declaration of the Council at a meeting in the Hague in October 1976. Then, to complicate the matter further, provision was made for compensation (by way quota) for those fleets which had lost fishing rights as a result of waters coming under the control of third countries, where access was no longer allowed.
Working all this out took the best part of six years of fractious and protracted negotiations, from which emerged a formula which would fix for the time being the percentage of each species TAC awarded to each of the Member States, proportions which would remain constant even though the TACs themselves might (and did) vary from year to year. This system of apportionment acquired the description “relative stability” and was incorporated in a new basic regulation, Council Regulation 2807/83. Although the coastal waters derogation was renewed, in all other areas Britain had lost out. Despite 85 percent of fish stocks coming within UK waters, her fishermen were allocated only 37 percent of the total catch, representing a mere 12 percent by value.
Despite this, the uneasy compromise represented by “relative stability” worked after a fashion, on a political level. As a fisheries management tool, however, it was progressively to create a world-class conservation disaster, leading to the near-collapse of major fish stocks – of which more, later in this paper. And even on the political level, within the system lay the germ of much further grief: it totally contradicted the central principle of the CFP set out first in Regulations 2141/70 and 101/76 - that of “equal access”. By giving preferential access to particular Member States, the arrangements discriminated on the basis on nationality, the very antithesis of “equal access” – although the system was endorsed by the European Court of Justice (ECJ) on the basis that it was a justifiable derogation from the principle, as long as the TAC system was in force.
That “discrimination” was to have a particularly aggravating effect on two potential members of the “club”, Spain and Portugal, who submitted their applications in the mid-1980s. Spain in particular, with 20,000 vessels equating in tonnage and power to three-quarters of the rest of the EC fleet, had by far the largest fishing fleet in Europe - more than three times the size of Britain’s. However, when Spain joined the EC in 1986, she brought in with her very little “marine resource”, yet demanded “equal access” to “community waters”, irrespective of the “relative stability principles” which had been so laboriously hammered out.
In its pre-accession negotiations, Spain had had a very strong hand to play. As a recently democratic nation – emerging from Franco’s Fascist regime, only to suffer an attempted military coup - Member States were anxious to have Spain in the EEC in order to lock her into the “community of democratic nations”. This, they believed, would avoid regional instability which could spill over into France in particular, and possibly beyond. However, when it came to negotiating Spain’s participation in the CFP, the collective Member States, having expended such tortuous effort on hammering out the ground rules for “relative stability”, were distinctly unenthusiastic about opening the regime up for renegotiation. They thus convinced Spain that she should wait until 2002 for full access to “community waters”, but only by dint of hard negotiating and offering multiple inducements.
This gave the Commission 15 years for the unenviable task of preparing the ground. But, even then, Spanish fleet owners were not content to wait. In a direct challenge to the national quota system, they registered their vessels in other EC countries, spending large sums of money, an unknown proportion from public funds, on buying up licenses in those countries, with fishing quotas attached. British boats were particularly targeted in this way, being operated under the Red Ensign (hence the term “flag boats”) while being Spanish owned and crewed.
Known as “quota hoppers”, by 1988 - only two years after Spanish accession – these boats were presenting such a serious problem that the British government, in an attempt to make the practice illegal, passed the Merchant Shipping Act. To qualify for a share in UK quotas, vessels would have to be owned and crewed in Britain. But immediately one of the Spanish companies affected, a single-vessel shell company by the name of Factortame, took a case to the ECJ which ruled in 1991 that this constituted discrimination on grounds of nationality and was therefore contrary to Article 7 of the Treaty of Rome. It also ruled that, where there was a conflict, European law was superior to Acts of the British Parliament. The Merchant Shipping Act had to be set aside.
Quota hopping thus became established as something Britain was powerless to stop. And the Spanish companies which had been forced to stop fishing during the 18 months the Act had been in force sued the British government for a minimum of #30 million, to compensate them for income of which they had illegally been deprived.
The first ten-year review
By now, the policy was coming up for its next ten-year review, and the derogation for coastal waters was due again to expire. The Commission was both alarmed at growing evidence of declining fish stocks – arising largely as a result of the failure to manage the fisheries effectively – and conscious of the need to “integrate” Spanish vessels into the “community fleet”. The result was a new basic regulation, Council Regulation 3760/92, in the proposals for which the Commission sought to redefine “relative stability”. It eschewed TACs and instead offered “fishing effort”, measured not in tonnage of fish to be caught but in hours fished, hooks or lengths of nets used. At the behest of Spain, it also called for “shares in the fishing opportunity” to be “fairly divided” among the Member States. The Commission also sought to move allocation of quotas out of the political sphere, from the Council to a management committee working under the aegis of the Commission. The proposals were given short shrift and none survived into the final version of the new basic regulation. The coastal derogation was, however, renewed for a further ten years, set to expire on 31 December 2002.
The impasse on the “relative stability” issue remained problematical. It left the Commission only one further option to prepare for the advent of the Spanish fleet. That was to reduce the overall “fishing effort”. To do this it proposed requiring each Member States to cut back their fleets – either by selling boats to third country owners for operation outside “community waters”, or by decommissioning them. This was what was known as the “Multi-Annual Guidance Programme” (MAGP). Although promoted as a “conservation measure”, its true objective became clearly evident from the scale of cut-backs imposed on each country. Britain’s MAGP target was 19 percent, equivalent to nearly a fifth of her entire fleet, while the huge Spanish fleet was required to cut back by only four percent. Meanwhile, structural funds poured into the Spanish regions to enable them to modernise their fleets, while the EU negotiated (and paid for) access to lucrative third country fishing grounds, mainly down the west coast of Africa, to keep their fishermen and their boats employed until they were to be allowed full access to community waters.
For Britain, the MAGP was an unmitigated disaster, not least because the British government refused to allocate more than #25 million compensation for boat decommissioning. This was nothing like enough to meet the target, leaving Britain without enough quota to support her fleet, this having been cut in anticipation of the targeted cuts. And still Spain had not finished. Having failed to get the changes she wanted written into the new basic regulation, in 1994 she dramatically upped the ante. She issued an ultimatum that, unless her vessels were given access to what were now called “European Union” waters in 1996, seven years earlier than she had agreed under her Treaty of Accession, she would veto the accession of Austria, Finland, Sweden and Norway. This blackmail partially succeeded. Some 40 Spanish boats were admitted under license to an area known as the “Irish Box” and much greater access was given to other “Western waters” where the Spanish already had limited historical fishing rights.
By then – and for some considerable time - the notoriously predatory Spanish fleet had acquired a reputation for ruthless exploitation of stocks and disregard for conservation rules. This reputation was confirmed in 1995, when the Canadian government arrested a Spanish vessel just outside Canadian waters for blatantly flouting its conservation rules. After Spanish trawlers had contributed to the devastation of fish stocks in the area – and the collapse of the fishery - an international agreement had been drawn up, involving the EU on behalf of Spain, and under which the Canadians themselves had agreed to lay off 50,000 people in their own fishing industry. But when the Spaniards continued to flout the rules, and one of her boats, the Estai, was caught concealing her illegal catch in a secret hold, and with a fraudulent log book, the row turned into an international crisis – the so-called “Turbot War”.
If the behaviour of the Spanish was creating political tensions, so too was another aspect of the CFP, whereby Denmark took by far the largest tonnage of fish from “EU waters” as “industrial fishing”. By a curious anomaly of the system, it was quite legally entitled to land 1,600,000 tons a year for this purpose, nearly three times the legal British catch. The target was small sand eels and sprats to be processed into fishmeal, mainly to feed pigs and poultry in intensive farms – as well as farmed fish - and for use as fertiliser. This meant the Danish trawlers were removing from the marine food chain vast quantities of tiny fish, including hundreds of thousand of tons of juvenile herring, mackerel, cod and other valuable species, which represented a significant proportion of the fish stocks of the future.
Failure of the CFP
All of this was fuelling broader concerns that the CFP had failed, a perception magnified by evidence of the way the quota system operated, requiring fish caught for which fishermen did not have a specific quota to be thrown dead back into the sea. Known as “discards”, these were estimated to account for up to 40 percent of the total EU catch, millions of fish amounting to thousands of tons of valuable protein, simply wasted, creating nothing other than pollution on the sea bed.
The reason for the decline in catches, however, was diagnosed by the Commission – and echoed faithfully by British ministers – as “too many fishermen chasing too few fish”, for which remedy the Commission sought to intensify the MAGP cuts. Britain, among the most vociferous critics of the CFP, was singled out for criticism for not meeting its 1992 targets and subjected to a barrage of propaganda by then fisheries Commissioner Mrs Emma Bonino. She falsely claimed the British fleet had “more than doubled in size” since 1986, from 116,000 tonnes to 239,000 tonnes, when official figures which the Commission itself had accepted showed that her figures were completely fictitious – all to justify still more cuts. All national fleets would have to be cut back by a further 40 percent but, in Britain’s case, a total reduction of nearer 60 percent was demanded.
Then new conservation measures were proposed by Mrs Bonino in the summer of 1996, which greatly increased the minimum permissible mesh sizes of nets, the effect of which was drastically to reduce permissible catches, making it much harder for fishermen to earn a living. That this was its purpose was confirmed at a meeting of DG XIV’s Scientific, Technical and Economic Committee in May 1996. There, it was minuted that “measures to reduce activity and catchability will improve the willingness of fishermen to leave the industry”. But, in a bizarre contradiction, the minimum sizes of fish it was permissible to land were reduced, while inspection rules were relaxed.
In December 1998 the House of Commons carried out a reckoning of the effects of the CFP, prior to the annual fisheries council ministers to set the coming year’s quotas. It was noted that the North Sea fish catch in 1953 had included an estimated 3-4,000 tuna. Now there were none. In the 1960s and 70s, the North Sea populations of herring and mackerel had collapsed. The mackerel never returned. The herring did - for a time. By 1990 there were an estimated one million tons in the North Sea. But in five years the level had fallen to a mere 24,000 tons. In 1995, it is estimated that EU boats had discarded an estimated 27 million tons of fish - enough fish to supply China for a year and a half. Yet the Danes had even been catching fish to fuel a power station.
As regards the staple fish, cod, in 1965 the total spawning population in the North Sea had been 205,000 tons. In the 1980s, average annual landings had been an unsustainable 300,000 tons. Thus, by the year 2000, when the catch had been set at 80,000 tons, fish had been so scarce that landings had amounted to only 50,000 tons. There were only an estimated 70,000 tons of adult cod left. The minimum stock level to guarantee the species’ survival was estimated at 150,000 tons.
So bad had the situation become that, by the year 2000, the Commission had been driven to prohibit cod fishing for three months in the 80-mile stretch of coastal waters between Cape Ortegal and Cape Vilan on Spain’s northwest coast. Fishing was also banned for a time in part of the Irish Sea cod spawning grounds and, by October of the same year, conservationists were claiming that the UK’s cod stocks had fallen to such a perilous level that catches would have to be banned in the North Sea. By December, the British government bowed to the inevitable and agreed to endorse cuts in North Sea cod quotas of 40 percent, to just 48,600 tons. But, by the following year, even more desperate measures were being taken. A 40,000 square mile swath of the North Sea, almost a fifth of its entire area, was closed from February to the end of April to cod, haddock and whiting fishing, in order to protect juveniles. However – amazingly - in much of the closed area, industrial fishing was allowed to continue, with trawls of mesh size less than 16mm pulling out the very juvenile fish that were supposed to be protected by the ban.
It was left to the Parliamentary Select Committee on the European Union to draw the obvious conclusions. Members wrote:
The Common Fisheries Policy (CFP)… has totally failed to achieve its fundamental objective of ensuring that fishing capacity and effort is consistent with self-sustaining fish populations and food chains. Instead there is chronic fishing fleet over-capacity and, despite quota controls and a range of technical and administrative measures designed to restrict fishing effort, fishing continues at an unsustainable rate. This has happened despite repeated warnings from the International Council for the Exploration of the Sea (ICES) and despite reports from Committees of both Houses of Parliament and others.
The news had even spread across the Atlantic. Roger Bate in the prestigious Wall Street Journal wrote: “By any reasonable measure the European Union’s Common Fisheries Policy, the sickly sibling of its ailing Common Agricultural Policy, has failed”. And, from a European Parliament report came: “It is surprising that more effort has not been put into obtaining effective fisheries management, given that success could have been used as a flag-bearer for the success of Europe as a political institution”.
3. The Reforms
By way of a curtain raiser to the CFP reforms, the Commission in March 2001 had published a “Green Paper”. This opened with an admission that: “the policy has not delivered sustainable exploitation of fisheries resources and will need to be changed if it is to do so”.
The shortcomings of the CFP could, according to the Commission, be expressed in conservation, economic and political terms. As far as conservation was concerned, many stocks were outside safe biological limits. They were too heavily exploited or had low quantities of mature fish or both. And, if current trends continued, many stocks would collapse. The available fishing capacity of the “Community fleets” far exceeded that required to harvest fish in a sustainable manner.
And the reason for the problem, in the view of the Commission, was simple. It arose “to a good extent” from “setting annual catch limits in excess of those proposed by the Commission on the basis of scientific advice, and from fleet management plans short of those required”. Poor enforcement of decisions actually taken had also contributed to over-fishing.
Pointing the way to possible reforms, the Commission concluded that the “Community” fisheries sector would have to be “significantly smaller than it is today”. And, reverting to baffling “Euro-speak”, it announced that “stakeholders do not feel sufficiently involved in the management of the policy and many believe that there is no level-playing field in terms of compliance and enforcement”. The overall answer was “thorough and urgent reform of the CFP”.
The reform proposals
When reform proposals were finally published in May 2002 – a month overdue - the Commission offered a “roadmap” which highlighted what it wanted to be taken as its substantive proposals. On offer was a “new approach to fisheries management”, the thrust of which was that management should be refocused on a more long-term approach, in line with the need to “manage fishing effort in line with sustainable catching opportunities”. This, the Commission warned – somewhat predictably – would require “an immediate and significant reduction of fishing effort”. That amounts to a reduction of “time at sea” of up to 60 percent, and the scrapping of an estimated 8,600 fishing boats - 8.6 percent of the EU’s 100,000 fleet. Additionally, the payment of subsidies to build vessels with one hand, while paying fishermen to scrap their boats with the other, was to end.
What made the headlines was that these “cuts” were not to be uniform. As before, the UK emerges a loser, being required to scrap 23.1 per cent of its gross tonnage. Spain, with the largest fleet in the EU, escaped with a cut of only 9.4 per cent. This brought howls of protest from, amongst others, Struan Stevenson, chairman of the European Parliament fisheries -committee, and a member a Conservative party that rejoices in the slogan “In Europe but not ruled by Europe”. And other fishing nations in the northern EU faced even heavier sacrifices, such as a proposed 27.3 percent reduction in tonnage for Denmark, and 49.7 percent for Sweden. By contrast, the cuts would constitute less than 2 percent of Greece’s fishing fleet, and 7.3 percent for Italy’s, the EU’s second largest fleet.
Nevertheless, this was a storm that the Commission was going to have to weather and, in the final analysis, the fisheries ministers are going to have to accept. A commitment had been made to Spain in her treaty of accession that her fishermen would be afforded “equal access” by 1 January 2003. Room had to be made for her fleet. That was a treaty obligation and the Commission was, after all, guardian of the Treaty. Protests were, essentially, political “grandstanding” for the sake of domestic audiences.
Yet the Spanish were not happy either, despite doing relatively well out of inevitable cuts – given the near-collapse in fish stocks, which made them unavoidable even without having to accommodate the rest of the Spanish fleet. Spanish MEPs said that Fischler would be remembered for “burying a socially and economically important sector of the Union”. Loyola de Palacio accused him of “provocation” and of taking “brutal decisions”. The Spanish government threatened to block the “reforms”.
Something of an explanation for this antipathy could be found in the proposal to end subsidies, couched as “the elimination of public aid for the modernisation or renewal of the fishing fleet except for aid to improve safety or product quality not likely to increase fishing capacity” - in more lurid terms, what The Guardian described as the “farcical” system of paying some countries, such as Spain, to enlarge and modernise their fleets while they and other countries were also being paid to destroy their boats.
But there was more to it than that. To a very superficial degree, some of the media did pick up on a few the reasons. The Independent, for instance, noted that the Commission wanted to end the horse-trading that had EU ministers sitting up all night once a year trying to increase their fishing quotas. Instead, it wanted scientists to dictate the amount of fish caught, with targets set over several years. That indeed had been one of the primary objectives of the Commission, signaled in the Green Paper where it had dumped much of the blame for the failure of the CFP on “setting annual catch limits in excess of those proposed by the Commission on the basis of scientific advice, and from fleet management plans short of those required”.
The political implications of this were and are profound. It spelt an end to the power of the Council to determine TACs, the annual beanfest of snarling, bickering national fisheries ministers, posturing and manoeuvring through the long nights of negotiations to extract the last ounce of advantage for their own national fleets, awarding themselves quotas determined without any reference to the biological realities, plundering the seas for political advantage – something at which Spanish politicians excelled. Spain, like all the other countries, was going to have to take a back seat to the scientists and officials, and do as it was told.
The mechanism devised by the Commission was “multi-annual management plans”, where quotas were to be determined over a number of years. For the first year, the Council was to be allowed to set the catch – defined as “fishing mortality targets” - and the fishing effort limit. But, in subsequent years, the operation of the plan was to be undertaken by the Commission. It would be assisted by a management committee, known as the Committee for Fisheries and Aquaculture, composed of civil servants from the Member States. In other words, the politicians could have their share of the limelight for the first year and then the power would pass to civil servants. Furthermore, provision had already been made, when management committees were used, for formal consultation with the European Parliament, by which means the Commission’s staunchest ally was to be enlisted, helping further to sideline the Council.
Already, in 1992, the Commission had tried to achieve something similar, with its proposal that “fishing effort” should be determined by a management committee working under its own control. Fisheries ministers at the time had been aware that this represented a major transfer of power, and had thrown out the proposal. Here it was, back again.
The environment “card”
If the Commission’s “power-grab” is a throw-back to earlier times, what makes the current proposals very different - and goes more to explaining the incandescence of the Spanish – is a completely new stratagem, employed by the Commission. It invokes the Maastricht and Amsterdam Treaties which introduced what amounted to the environment “card”, in the form of Article 6 of the amended Treaty Establishing the European Community, and Article 174.
Article 6 requires that:
Environmental protection requirements must be integrated into the definition and implementation of the Community policies and activities referred to in Article 3 (which includes the CFP), in particular with a view to promoting sustainable development.
Article 174 specifies that community policy on the environment shall contribute inter alia to preserving, protecting and improving the quality of the environment and the prudent and rational utilisation of natural resources.
Between 1992 and the current reform round, therefore, integrating environmental protection into the CFP had become a Treaty obligation. The effect would be to take TACs out of the political arena, where scientific advice – rather than political horse-trading – had to predominate. Although the concepts of “equal access”, “relative stability” and the so-called “Hague preferences” are to remain, they do so in a much diluted form. The Commission, within the framework of its proposed multi-annual management plans, is mandated to reduce “fishing pressure on fishing grounds to sustainable levels” and empowered to target fishing activities “having adverse effects both on the sustainability of fish stocks and on the favourable conservation status of non-commercial species and habitats”.
By this means, certain types of fishing can be curtailed, and different fish species within a given area can be protected under differing control regimes. Since the different Member State fleets tend to specialise, the effects of these measures could be to exclude boats from some nationalities but not others, albeit that the discrimination is not primarily made on the basis of nationality.
Thus bolstered by the environmental provisions, the Commission has felt confident enough to propose the repeal of Council Regulation 101/76 – which incorporates “equal access” into the acquis communautaire. To replace it, it has offered a new basic regulation that enacts a “Community Action Plan”.
From all this, other powers will flow, including the issue that has exercised so many commentators. The Commission is to devise an Action Plan on discards and proposals to protect sharks, cetaceans and sea birds from adverse effects of fishing. In addition, biodiversity has been called in aid, with “the setting up of long-term management plans for the most important and the most vulnerable fish stocks, the identification of key habitats and biotopes, the setting up of “temporal and spatial closures” including ‘no take zones’ and the development of guidelines for Best Fishing Practice”.
Then there is the “nuclear option”. Member States are being told to fulfill “within the shortest deadlines”, their obligations concerning the nature protection directives: Directives 79/409/EEC - on the conservation of wild birds - and 92/43/EEC, on the conservation of natural habitats, and especially those regarding the designation and management of marine areas forming part of the Natura 2000 framework. These directives give legislative force to the Commission’s proposed “no take zones”, effectively protected marine reserves where no fishing at all is allowed and young stock can safely develop. These are widely regarded by many experts as the best way of conserving fish stocks and ensuring a plentiful supply of “recruits” to commercial fishing grounds.
Backing up these provisions is a raft of proposals on technical measures, including the introduction of more selective fishing gear, such as nets with larger meshes, square-mesh panels, separator grids, and changes in design and rigging of such gear in order to improve selectivity. There are to be restrictions on fishing to protect juvenile fish, sensitive non-target species and habitats; minimum landing sizes in line with the selectivity of the gear concerned; “discard ban trials” in which representative samples of fishing vessels would be encouraged by economic incentives to retain their entire catch; and the targeting of economic incentives for the use of more selective fishing practices. And industrial fishing, like other types of fishing, are to be subject to the conservation and management measures, including multi-annual management plans.
The 12-mile limit
All of this makes the new proposals very substantially different from anything that had come before. But there were some familiar landmarks. Despite dire predictions to the contrary, the 12-mile “exclusive” coastal zones had survived, this time with no end date specified. It had, in fact, been the end of the ten-year derogation, scheduled to terminate on 31 December 2002, that had set the timetable for the current reform.
Lacking agreement from the Council, theoretically the expiry of the derogation, without alternative measures in place, would allow foreign trawlers to fish “up to the beaches”, although this risk has been over-stated. In the first place, fishing effort is still subject to TACs and national quotas and, in any event, in the absence of agreement by the deadline, the Commission has powers to extend existing arrangements by six months. This notwithstanding, what had started as a derogation thirty years before, and renewed every ten years, is set to become a permanent feature of the CFP.
For the rest of the “community waters”, “equal access” – with some limited exceptions – was to be the rule, subject, of course, to the massive tranche of conservation measures, which made it “equal” in name only. These simply underlined the fact that there was not and never would be “equal” access. What was on offer was a new method of managing the inequality. As for the precise details, the Commission deferred proposals for detailed rules “concerning access to resources”, committing itself only to a report that would allow the Council to decide by 31 December 2004 “on any adjustments to be made to these rules”. No doubt, this delay is to afford time to deal with the negotiations for projected entry to the EU of Poland, and the integration of its fleet to “community waters”.
Equally vague were the provisions for allocating “Community fishing opportunities for each stock”, which is left to the Council to decide, with the rider that it should ensure “each Member State a share of those fishing opportunities and/or of the fishing effort to be distributed, having regard to the need to assure each Member State as to relative stability of fishing activities”. And it was also left for each Member State to decide on the method of allocating fishing opportunities to their own flag-carrying vessels, from their national quotas.
That, however, was by no means the end of the matter. Two other important elements formed part of the Commission’s proposals – the “Community control and enforcement system” and “Regional Advisory Councils (RACs)”.
Control and enforcement
Control and enforcement provisions were, of course, built into earlier regulations but there are significant differences in the new proposals – all with a heavily integrationalist bias. Up front, licensing requirements for vessels are carried over from Regulation 3670/92 (which is to be repealed if the new proposals are accepted) but, unlike 3670 which defined a national licence, there is no specification as to which authority now issues the license – the Member State or the “Community”. Whether this is significant or not remains to be seen but there are suspicions that “Brussels” wishes to take over direct licensing of fishing vessels. However, the proposals make the Member States responsible for controlling the “activities carried out within the scope of the Common Fisheries Policy on their territory”, which appears to leave licensing with the Member State.
But what are unequivocally different are some of the proposals for inspection and enforcement. Each Member State remains primarily responsible for these functions, including spot checks and inspections on fishing vessels, and the Member States are instructed to impose sanctions on infringing vessels. These traditionally have included such things as fines, seizure of prohibited fishing gear and catches, sequestration of the vessel and even withdrawal of the license. What is now to be different is that the Council is to acquire the power to decide on the level of sanctions to be applied by the Member States for “behaviour which constitutes a serious infringement”. The EU now is to set the penalties.
As for the Commission, it has to “evaluate and control the application of the rules of the CFP by the Member States”, and facilitate co-ordination and co-operation between them. If a Member State does not properly enforcing the rules, the Commission can set a 10-day deadline for it to demonstrate compliance. After the deadline, the Commission can suspend “fishing activities or landings of catches by certain categories of vessel or in certain ports, regions or areas”. In other words, the Commission is to hold reserve enforcement powers. It can also penalise Member States by withdrawing quota from its fishermen.
In the inspection functions, there are also very important enhancements of powers. Under previous regimes, inspections could only be carried out by national authorities, with Commission inspectors’ rights limited to that of observing. Those inspectors had no access to vessels or premises unless accompanied by agents of the Member State. This is to change. The Commission, under the proposed rules, may “of its own accord and by its own means” initiate and carry out its own audits, inquiries, verifications and inspections, on vessels as well as land.
Furthermore, Member States have to coordinate their inspections with each other, including exchanging inspectors, and are required to authorise each other’s inspectors, inspection vessels and aircraft to carry out inspections of any “community” vessel. Inspectors’ names have to be registered with the Commission and the inspectors acquire the status of “Community” inspectors. Their inspection and surveillance reports “constitute admissible evidence in administrative of judicial proceedings of any Member State” and have the same value as reports of the Member States. A “Community” inspectorate is in the making.
Regional Advisory Councils
Finally, of the substantive proposals, it is proposed to establish Regional Advisory Councils (RACs), ostensibly “to ensure greater stakeholder involvement in the development of fisheries management at regional and local level”. They are to be composed of representatives of all parties “with an interest in fisheries management in a given sea area or fishing zone”, including environmental protection and consumer interests. Crucially, they have to be “trans-national”, covering sea areas “falling under the jurisdiction of at least two Member States”.
They may be consulted by the Commission in respect of proposals for CFP measures and they themselves may submit recommendations and suggestions, of their own accord or at the request of the Commission or a Member State, on “matters relating to fisheries management to the Commission or the Member State concerned”. They can also inform the Commission or the Member State concerned about problems relating to the implementation of Community rules in the area they cover and submit recommendations and suggestions addressing such problems to the Commission or the Member State concerned. Geographic areas have not yet been established and it is for the interested Member States to come out with requests for the setting-up of RACs in a given sea areas.
4. Analysis and Conclusions
If Steffen Smidt, the recently deposed Director General of the Fisheries Commission, is the author of this current round of “reform” proposals – as is widely held – it is not surprising that the Spanish wanted rid of him – even if they deny having exerted direct pressure for his removal. In framing the proposals by reference to the amendments to the environmental provisions of the Maastricht and Amsterdam Treaties, he has neatly circumvented many of the fixtures of the CFP regulations, which have previously inhibited serious reform, and dashed their hopes of a massive increase in their fishing allocations.
In many respects, the proposed reforms have admirable qualities. For instance, “no take” areas are an acknowledged mechanism for safeguarding fisheries and the use of the Natura 2000 provisions to designate them is inspired. Where the directives on which the Natura system is based are applied, they prevent Member States invoking economic considerations to over-ride conservation. If the Spanish were expecting generous “equal access” to the “Community water” from which they had hitherto been wholly or partly excluded, they are going to be disappointed.
This “over-ride” provision arises from an important judgement of 11 July 1996, when the European Court of Justice decided that Member States were not authorised to take account of economic requirements when classifying Special Protection Areas (SPA) – which would be the basis of “no take” areas - and defining their boundaries. The ruling applies even where “economic requirements constitute a general interest which is superior to that represented by the ecological objective of the Birds Directive or represent imperative reasons of overriding public interest of the kind referred to in Article 6(4) of the Habitats Directive”.
The case arose from the exclusion, for economic reasons, of a small section of ornithologically important mudflats called Lappel Bank from the area of the Medway Estuary (Kent) that was classified by the United Kingdom as an SPA in 1993. The Royal Society for the Protection of Birds (RSPB) challenged this decision in the UK courts. When the matter was referred to the Court of Justice the European Commission supported RSPB’s view.
This notwithstanding, the proposals have to be assessed at different levels. Technically admirable they may be in many respects, but their very merits stem from characteristics which model that which many nation states would be happy to incorporate in their own policies. But, for those opposed to the economic and political integration process at the core of the EU, that is the problem. With its centralised allocation of fishing effort, its centralised inspection and control, and its Regional Advisory Committees reporting to the Commission, this is effectively a national fisheries policy. The only problem is that the “nation” is the EU – the putative Peoples’ Republic of Europe.
Broadly, until now, the CFP has included a strong component of “intergovernmentalism”, with fisheries ministers controlling vital aspects of the policy. Clearly, this has not worked, not least because those ministers – elected politicians all – have been unable to rise above national interests, in a manner which is essential for a “common” policy to work effectively in the context of a supranational organisation.
Thus, in proposing what amounts to a “take-over”, the Commission is treading a well-worn path where policies are initially pioneered through the intergovernmental system and progressively pass to the officials for management, thus completing the integration process – a process foreseen by the father of the EU, Jean Monnet, in what has become known as the “Monnet Method”. In this case, it has taken the impending collapse of European fisheries to facilitate the take-over, the utilisation of the “beneficial crisis”, by which the Commission exploits crises to further integration.
And there can be no doubt that the reforms have a strongly integrationalist character, but also one which reflects the most recent thinking from the Commission’s White Paper on EU governance. In establishing its inspection system, the Commission is employing only seven new staff. But, in acquiring powers to coordinate the general inspection effort, to require Member State inspectors to cooperate and be exchanged between Member State bodies, and in insisting that they are cross-authorised, we are seeing a move by the Commission to take over the member state civil services from the inside – the ultimate in integration. These officials may still be employed by Member States – and paid by them – and will retain an outward identity of their Member States but they will effectively be organised as a “network” and will work solely for the Commission, to which they will be directly responsible.
Similarly, the Regional Advisory Committees reporting directly to the Commission and, being “trans-national”, have only a marginal relationship with any single Member State. This is the embodiment of “perforated sovereignty”, a deliberate attempt to create regional authorities which bypass the national authorities.
Working as part of a networks, with Brussels at the hub, they undermining the nation state by breaking the natural monopoly of nations to deal with external relations. Although flagged up as “devolution”, these committee arrangements are anything but. The represent a major part of the centralisation process as links between local areas and their central governments are progressively detached, only to be replaced by more distant links in Brussels, managed by unelected technocrats who can play off the aspirations of the different regions to impose central diktats under the guise of arbitrating on competing demands.
The problem for British politicians
All of these proposals create problems for British politicians. Ostensibly, these reform proposals are as thorough and as potentially effective as it is possible for them to be. If they work, they will be the saviour of the collective fishing industries. But they are also highly integrationalist and, although we may end up with a workable CFP as a result - if the Council permits them to be implemented without their being unduly savaged - any future success will have been to the detriment of the British fishing industry, British fishermen – and national sovereignty.
The British industry, decimated by politically-inspired agreements, fatally weakened by the inadequacies of the historical implementation of the policy, and the indifference and mendacity of domestic politicians, is in poor condition to weather the rigours that will accompany the transition from the existing to any newly-constructed policy. There is the very real spectre, if the current round of fleet cuts are implemented, of the British industry declining still further, to a shadow of its current dire straits, with the share for Britain’s fishermen possibly reduced to only 10 percent or less of the entire catch. Then, when the reforms “kick in”, there is the distinct possibility of an economic renaissance in commercial fishing. But it will be the “Community” industry that will benefit, a bonanza from which the British will largely have been excluded.
Perversely, without successful reform, the “Community” industry will almost certainly collapse – and the British industry with it. Thus, the only option on offer is a successful rescue attempt, from which Britain loses out, with a hefty price tag of further political integration. The other alternative, of course, is the “repatriation” of the control of British waters – and the negotiation of fishing rights with other EU Member States. Short of leaving the EU, however, this is unlikely to be achieved. But the reward could be a revitalised British industry. In the context of our fishing rights having been taken from us under false pretences, many believe that this alone is sufficient reason to leave the EU. It is certainly the only means by which the British industry can be saved.
 12 June 2002. Les Quinze engagent une difficile nigociation sur la riforme de la pjche.
 European Parliament Working Document - Agriculture, Fisheries and Forestry Series, E-7/FINAL. 03-1997
 Article 38, Treaty of Rome (original numbering)
 European Parliament, op cit.
 Commission of the European Communities, COM(2001) 135 final, Green Paper on the Future of the Common Fisheries Policy.
 Commission of the European Communities, COM(2002) 181 final, Communication from the Commission on the reform of the Common Fisheries Policy (“Roadmap”)
 30 May, 2002, The Times, “Fishing cuts are unfair, says MEP”.
 29 May 2002, The Independent: Brussels proposes scrapping thousands of trawlers to save dwindling fish stocks, by Leyla Linton.
 Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (1999/468/EC).
 Commission of the European Communities, COM(2002) 185 final, Proposal for a Council Regulation on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy.
 For instance: Callum M. Roberts and Julie P Hawkins, authors of: Fully protected marine reserves: a guide. WWF Endangered Seas Campaign and Environment Department, University of York.
 Council Regulation (EEC) 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture. Article 15(1): “In the event of serious and unexpected upheaval liable to jeopardize conservation of resources, the Commission, at the request of a Member State or on its own initiative, shall decide on appropriate measures which shall last no more than six months, and which shall be communicated to the Member States and the European Parliament and which shall have immediate effect”.
 See: Farage N. Democracy in Crisis – the White Paper on European Governance. Occasional Paper No. 44. London: The Bruges Group.
 See: Gren J. The New Regionalism in the EU. Stockholm: Fritzes Offenliga Publikationer.