Radical opinion from the European Court of Justice’s Advocate-General suggests EU Commission is closing down the EU’s non-scientific, short-term, socio-economic approach to total allowable catches of cod, whiting and plaice when those overfished stocks are caught as inevitable by-catch.
By Tony Lowes.
The EU Commission dealt with this in a way similar to the ‘no more chocolate from Monday’ promise; because, if Monday is not understood as a fixed deadline, one will keep eating chocolate and Monday will never come
The abundance of marine life described by fifteenth-century seafarers is almost unimaginable today.
As Callum Roberts records in his 2007 ‘The Unnatural History of the Sea’, they “described encounters with enormous shoals of fish that appeared almost limitless. The shoals were so dense that they could be seen from afar, darkening the surface of the water as far as the eye could see. The seas were alive with movement and colour as fish of all shapes and sizes darted through the water in a mesmerising ballet. The richness of the marine ecosystem was unparalleled, with an abundance of cod, herring, sardines, and other species that sustained both seafarers and coastal communities for generations. The seafarers spoke of a world that seemed untouched by human intervention, a paradise of natural abundance that existed in harmony with the oceans”.
In her support of the challenge brought to the European Court of Justice by Friends of the Irish Environment to overfishing in Irish waters, Advocate General Tamara Ćapeta cited the Irish spirit of the oceans, Manannán Mac Lír. “Such was the abundance of his crop in the waters surrounding Ireland that when consecutive Royal Commission examined the fishing industry in 1863 and 1885, the leading ichthyologists of the day concluded that the fisheries were ‘inexhaustible'”.
“Alas”, she continues, “they were wrong. Fish stocks are not a perpetual self-renewing resource, independent of human influence. As we have learned in this century, fish stocks require careful management in order to secure their survival”.
Friends of the Irish Environment, supported by the resources of Client Earth, challenged the quota for total allowable catches [TACs] set in 2020 for cod, whiting and plaice when those overfished stocks are caught as inevitable by-catch
Friends of the Irish Environment, supported by the resources of Client Earth, challenged the quota for total allowable catches [TACs] set in 2020 for cod, whiting and plaice when those overfished stocks are caught as inevitable by-catch during fishing operations that target other stocks, undermining the principle of ‘Maximum Sustainable Yield’ [MSY]. To protect these species from being part of the inevitable by-catch the target fisheries would have to be closed to allow them to recover, with financial ruin running “from northern Scotland to the southern Azores”, according to the industry. Certainly, achieving the scientifically recommended TAC at ‘0’ for whiting in the Irish Sea would temporarily close the Dublin Bay prawn fisheries, as they inevitably catch whiting because of the way they must carry out their trawling.
As Ćapeta explains: “The concept of the Maximum Sustainable Yield (‘MSY’) is a harvest strategy globally used in fisheries. It assumes that there is a certain level of catch that can be taken from a fish stock without affecting its equilibrium population size. In essence, the idea is to harvest only the surplus of fish that naturally occurs as the stock reaches its equilibrium point and its reproduction rates slow down. Hence, by ‘shaving off’ that surplus, the reproduction rates remain maximised and the fish stock annually repletes itself without affecting its long-term survival”.
Forty years ago, the European Union brought in the Common Fisheries Policy to ensure the sustainable management of fisheries resources. Citing the subsequent EU 2009 Green Paper review of the Common Fisheries Policy Basic Regulation, the Advocate General reported that “the Commission then found ‘the [previous] CFP has not worked well enough” and warned that an “ecological and sustainable vision of the CFP is a far cry from the current reality of overfishing and decline in the volume of fish caught by European fishermen”.
The EU legislature dealt with this in a way similar to the ‘no more chocolate from Monday’ promise; because, if Monday is not understood as a fixed deadline, one will keep eating chocolate and Monday will never come
The experts say that in the EU it is estimated that at least 38% of fish stocks in the North East Atlantic and Baltic Sea, and 87% in the Mediterranean and the Black Sea, are being fished beyond their maximum sustainable yield.
According to experts, overfishing not only reduces fish biomass but threatens biodiversity, alters the marine food web, and degrades marine habitats. The experts estimate that in the EU at least 38% of fish stocks in the North East Atlantic and Baltic Sea, and 87% in the Mediterranean and the Black Sea, are being fished beyond their maximum sustainable yield.
Hence, Article 2(2) of the 2013 CFP Basic Regulation provided that fisheries management “shall aim to ensure that exploitation of living marine biological resources restores and maintains populations of harvested species above levels which can produce the maximum sustainable yield by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks”.
Critically, Ćapeta rebutted the attempts of the Commission to claim to have amended the binding targets through other measures, such as the Western Waters 2019 Regulation purportedly providing “implicit amendments”. Such amendments, even if valid (which she held were not) are “not transparent for the public”. They are “the very enemy of transparent lawmaking”, undermining the “requirement to allow for participation in the legislative process”, especially when “it concerns amendments of core elements of policy which may be of interest to the public”.
As with many environmental restrictions, there is an argument for discretion, ostensibly here to allow the “balancing of the competing ideals of sustainability and fisheries management, on the one hand, with the economic and social objectives of the communities dependent on the sea for their livelihood, on the other”.
“To my mind, however”, the Advocate General continued, “as of 2020, Article 2(2) of the CFP Basic Regulation removed from the Council those elements of discretion which relate to the decision as to whether and by when to achieve Maximum Sustainable Yield levels for the stocks covered by the Common Fisheries Policy Basic Regulation. Indeed, I consider that, by setting a fixed deadline, the EU legislature aimed to prevent the Council from putting short-term economic interests before the overarching long-term goal of progressively restoring and maintaining populations of fish stock above biomass levels capable of producing MSY. The EU legislature dealt with this in a way similar to the ‘no more chocolate from Monday’ promise; because, if Monday is not understood as a fixed deadline, one will keep eating chocolate and Monday will never come”.
“Until 2020”, she explained, “it was still possible to balance the objective of achieving MSY against other socioeconomic objectives. From that year, however, that possibility fell away, and with it the Council’s discretion to depart from the objective to achieve MSY when setting its annual Total Allowable Catches. In other words, by reason of Article 2(2) of the 2013 CFP Basic Regulation, the EU legislature seems to have aimed at excluding short-term socioeconomic pressures from overriding the achievement of long-term sustainability goals after 2020”.
Ćapeta noted that “the Commission itself has, in the past, observed that fishing at MSY levels is actually more profitable for the fishing industry in the long run than continuously undermining those levels. Therefore, separating the short-term socioeconomic objectives from decisions on measures to achieve the MSY goal serves, in the long term, not only the environmental objectives of the CFP, but also its economic, social, employment and food-supply objectives”.
“Allowing certain stocks to be caught as ‘by-catch’ despite scientific advice of zero TAC would mean that the Council could set fishing opportunities contrary to the very principles of good governance that the EU legislature sought to enshrine in the management of the CFP”. In setting the TACs at a level representing a significant amount of the spawning stock biomass of the four stocks at issue, the Council did not abide by its obligation to seek and formulate that level on the basis of the “best available scientific advice” or the “precautionary approach”.
Even if Ćapeta’s compelling and comprehensive recommendation is adopted by the final Court decision (expected later this year), a return to the abundance of the days before steam replaced sail – and rail and refrigeration extended markets – is a long way off. The failure to provide strictly protected and patrolled Marine Protection Areas, ongoing bottom trawling, and the plunder of the international super-trawlers will prevent that.
Tony Lowes is a Director of Friends of the Irish Environment
