2019
Master Thesis The pulse fish case
How should the recent decision in the EU regarding pulse fishing be assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”?
LOEKI MAAS U1251789
TILBURG UNIVERSITY Abstract
Electric pulse fishing is a relatively new technique that uses electric pulses to catch flatfish, mostly sole and plaice in the Southern part of the North Sea. This technique is prohibited within Europe, only 5% of the vessels per member state can use this technique for scientific research. However, the Netherlands have found a way to extent their fleet, using different derogations. They believe pulse fishing is contributing to a more environmentally sustainable way of fishing and should be legal within Europe.
This research focusses on the administrative and environmental law aspects of the pulse fish debate. The first part of this research explains the legal basis of pulse fishing, the legal bases of the derogations and who has competence in what situation. The second part of this study analyses the legal meaning of “environmentally sustainable fisheries”, one of the main objectives of the Common Fisheries Policy (the legal basis of the pulse fish technique). Within this area the ecosystem-based approach and precautionary principle are explored. From these two parts I have made two frameworks, which are used in the third part of this study to analyse the pulse fish case. The results show that there is a gap between the results from the frameworks (the theoretical question) and the actual outcome of the pulse fish case. The fourth part of this study explains the influence of politics and lobby to reveal the disconnection between the theoretical outcome and practical outcome of the pulse fish case. The conclusion shows that the pulse fish technique is still in the research phase, but the known results show promising opportunities for the fishing industry and the maritime environment. The influence of politics however resulted in a different outcome for the pulse fish technique. The Union has exclusive competence in this matter and voted for a total ban, which means that the Netherlands will have to change back to the old technique and can no longer conduct scientific research at the current level.
This research uncovers the disconnection between the rule of law and practice and shows the influence of politics in a decision-making process within the European Union.
Acknowledgements
I would like to thank my supervisor, prof. dr. C.J. Bastmeijer, who has been very supporting during the whole process and made be believe in myself. I would like to thank my family and friends for supporting me and I would like to thank my partner, Noud, for supporting me and sticking with me these last months.
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List of abbreviations
TEU: Treaty on European Union
TFEU: Treaty on the Function of the European Union
CFP: Common Fisheries Policy
CAP: Common Agriculture policy
EP: European Parliament
EC: European Council
RAC: Regional Advisory Council
EFCA: European Fisheries Control Agency
MSY: Maximum Sustainable Yield
TAC: Total Allowance Catches
ICES: International Council for the Exploration of the Sea
EU: European Union
STECF: Scientific and Technical Committee of Fisheries
ICES: International Council for the Exploitation of the Sea
IAPF: Impact Assessment of Pulstrawl Fishery
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Research question and approach
On February 13, 2019 the Union voted for a total ban on electric pulse fishing in Europe.1 The debate on pulse fishing in Europe has many aspects. There is a lot discussion on the legality of the contracts and derogations (the derogations make it possible for the Netherlands to use the pulse fish technique), which includes mostly private law. There is speculation that the Netherlands are committing fraud with the way they execute the derogations, which include criminal law. The question is raised whether the Netherlands are abusing a dominant position and if pulse fishing contributes to unfair competition, which falls under European competition law. Then there is the question of “who decides what”; what competences and what decision-making power the member states and the Union have, which falls within administrative law. Finally, pulse fishing is about environmental law. It is a new technique that aims to contribute to a more environmentally sustainable way of fishing.
For this study, I had to make choices and scope my research. Because of my interest in the oceans and marine environment, I wanted to take the administrative and environmental parts of the pulse fish debate as a starting point. I am always very curious about new techniques and methods on sustainability. Supporters of the pulse fish technique strongly believe that this technique is contributing to a more environmentally sustainable way of fishing. They even compare the technique to solar systems, which are universally approved. Taken this into consideration, this study will focus on the administrative- and environmental law aspects of the pulse fish case. This means that I only included in this study the aspects of the pulse fish debate that focus on competences, legislative procedure, environmental law and sustainability. During the process I realised that politics have had a big influence on the policy-making process, therefore I decided to dedicate one small chapter on the influence of politics.
This study uncovers a disconnection between the legal framework of the Common Fisheries Policy and the executed policies, using the pulse fish case to expose this. The research question is the following: How should the recent decision in the EU regarding pulse fishing be assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”? Within this research question, there are the following subquestions: 1. How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy? 2. What is the meaning of “environmentally sustainable fisheries” and what instruments can be used? 3. Would the answers to subquestions 1 and 2 leave space for an allowance of pulse fishing? 4. What has been the role of politics and lobby in the pulse fish case?
1 Vincent Sondermeijer, ‘Helft Nederlandse kotters mag tot 2021 blijven pulsvissen’ (NRC, 13 February 2019)
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Index
Contents Abstract ...... 0 Acknowledgements ...... 1 List of abbreviations ...... 2 Research question and approach ...... 3 Index...... 4 Introduction ...... 6 Chapter 1 – How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy? ...... 7 1.1 Competences within the EU...... 7 1.2 Legislative procedure ...... 8 1.3 The Common Fisheries Policy ...... 9 1.4 The legal basis and objectives of the CFP: ...... 10 1.5 Interim conclusion: ...... 12 Chapter 2 – What is the meaning of “environmentally sustainable fisheries” and what instruments can be used? ...... 13 2.1 Definition of “environmental sustainability”: ...... 13 2.2 Legal meaning of environmental sustainability in the context of the CFP ...... 14 2.3 Legal instruments to achieve environmental sustainability ...... 15 Ecosystem-based approach ...... 15 Precautionary principle ...... 16 2.4 Legal instruments on environmental sustainability within the CFP ...... 16 Ecosystem-based approach and the precautionary principle within the CFP ...... 17 MSY ...... 18 Scientific research ...... 18 2.5 Interim conclusion ...... 19 Chapter 3 – Would the answers to subquestions 1 and 2 leave space for an allowance of pulse fishing? ...... 20 3.1 The pulse fish case ...... 20 The current situation on pulse fishing in Europe ...... 20 Development of pulse fishing within the Netherlands: ...... 21 Derogations ...... 22 3.2 Scientific research on pulse fishing ...... 23 3.3 Comparison with chapter 1 ...... 25 3.4 Comparison with chapter 2 ...... 26
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3.5 Interim conclusion ...... 27 Chapter 4 – What has been the role of politics and lobby in the pulse fish case? ...... 29 4.1 why did the pulse fish case worked out different than planned for the Netherlands? ...... 29 4.2 The influence of politics and lobby ...... 29 4.3 What does this say about the legal system? ...... 30 4.4 Lessons to be learned ...... 31 4.5 Conclusion ...... 31 Bibliography ...... 33
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Introduction
This research deals with the following question: How should the recent decision in the EU regarding pulse fishing be assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”?
This main question leads to the following subquestions and chapters:
Chapter 1: How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy?
The first part of chapter one will deal with the different competences as set out in the EU Treaties, considering the shared and exclusive competences. This chapter will stipulate the relevant legislative procedure. Part two of chapter one will introduce the Common Fisheries Policy (hereinafter: CFP), by explaining its legal basis and considering the division of competences – as set out in the first part of chapter one - within the CFP; and the objectives of the CFP will be introduced. Chapter one will end with an interim conclusion, that will be used in chapter three for pulse fish case.
Chapter 2: What is the meaning of “environmentally sustainable fisheries” and what instruments can be used?
Chapter two will focus on the CFP by analysing the aim of “environmentally sustainable fisheries” and analysing the different instruments that can be used to contribute to this aim. This chapter will take a closer look on what “environmental sustainability” legally means. Chapter two also looks into the ecosystem-based approach and the precautionary principle. Part two of this chapter will look at these principles and analyse how the CFP executes them; ending with an interim conclusion that is used on the pulse fish case.
Chapter 3: Would the answers to subquestions 1 and 2 leave space for an allowance of pulse fishing?
Chapter three will introduce the pulse fish debate, starting with an explanation of what pulse fishing entails, followed by explaining the current state of affairs of the pulse fish case; after this a brief history on the development of this kind of fishing and explanation the Dutch derogations on pulse fishing will follow. Part two of chapter three connects the conclusions as set out in chapters one and two on the pulse fish case. Chapter three will end with an interim conclusion, which summarize the pulse fish case and what the outcome would be when only looking at the conclusion of chapter 1 and 2.
Chapter 4: What has been the role of politics and lobby in the pulse fish case?
Finally, chapter four will explain the influence of politics in the pulse fish debate; whether the current legal system is achieving its goal in the pulse fish case.
Conclusion: Answering main question
This research will end with an overall conclusion, answering the main question: How should the recent decision in the EU regarding pulse fishing be assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”? This study exposes the disconnection between the legal framework and the executed policies in the pulse fish case.
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Chapter 1 – How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy?
1.1 Competences within the EU By establishing the Treaty on the European Union (hereinafter: TEU), “the high contacting parties establish among themselves a European Union, on which the Member States confer competences to attain objectives they have in common”.2 In the TEU it is established that the EU only has competences in areas conferred to by the treaties.3 This means that the Union only has attributed competence. The competences of the Union and its Member States are explained in articles 4 and 5 TEU.
The competences of the Union and its Member States are based on the principle of conferral.4 This principle means that: “the Union shall only act within the limits of the competences conferred upon in by the Member States in the Treaties to attain the objectives set out therein. Competences not referred upon the Union shall remain with the Member States.” As set out in art 5(1) jo. 5(3) jo. 5(4) TEU the principle of conferral is managed by the principles of proportionality and subsidiarity. The principle of proportionality entails that the Union’s competence and followed action should not go beyond the limits of that what is necessary to achieve its objections. The principle of subsidiarity applies in the areas of shared competences.5 This principle describes when action should be taken by the union and when it is preferable that action is taken by its Member States. In short it can be said that ‘competence’ is the ability to decide on specific areas as set out in the treaties. For each area it is important to look at the treaties in order to find out “who can decide what”. Since the establishment of the Lisbon Treaty, the Union “may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action”.6 Article 4 of Treaty on the Function of the EU (hereinafter: TFEU) lists the areas of shared competence; Article 3 TFEU lists the areas in which the Union has exclusive competence.
Paragraph 2 TEU establishes the shared competences between the Union and its Member States. In the event of shared competences, the Member States “shall exercise their competence to the extent that the Union has not”.7 For example, article 4 paragraph 2 under e TFEU establishes that the environment is a shared competence. Title XX TFEU further explains the objectives, policy, principles and such of the environment. Conform article 2 paragraph 1 TFEU the Union has exclusive competence in specific areas, meaning that only the Union may legislate and adopt legally binding acts. Member States can only have influence when empowered by the Union or in case of implementation of the Union acts. The Union has a pre-emptive right in the areas of exclusive competences. These areas are very limited, because the Union alone can adopt legally binding acts, the Member States have completely given up their autonomous legislative competence.8 Once it is established that an area falls within the exclusive competence of the Union, the Member States only have influence through the European institutions.9 The areas of exclusive competence are set out in
2 Consolidated Version of the Treaty on European Union [2012] OJ C326/16 3 Consolidated Version of the Treaty on European Union [2012] OJ C326/18 4 Consolidated Version of the Treaty on European Union [2012] OJ C326/18 5 Paul Craig and Grainne de Burca, EU Law text, cases and materials, (5th edn, Oxford 2011) 94 6 Paul Craig and Grainne de Burca, EU Law text, cases and materials, (5th edn, Oxford 2011) 73 7 Consolidated Version of the Treaty on European Union [2012] OJ C326/17 8 Paul Craig and Grainne de Burca, EU Law text, cases and materials, (5th edn, Oxford 2011) 79 9 David Langlet and Said Mahmoudi, EU Environmental Law and Policy, (Oxford 2016) par. 4.6
7 article 3 (1) TFEU. One of the areas in which the Union has exclusive competence is the conservation of marine biological resources under the Common Fisheries Policy.10
The division of competences is clear in theory, but it should be noted that in practice the limits of competences are often debatable.11 The law is abstract, and for each individual case the division of decision-making power can be different. On top of that, the law has limits. In practice it is not only the law that matters, but it is always a complex mix of different disciplines like politics, sociologists, economics, scientists, environmentalists and lawyers. 12 As is shown further in this study, this makes it sometimes difficult to achieve the aimed goals and might even result in different outcomes than might expected.
1.2 Legislative procedure Unless states otherwise in the treaties, the ordinary legislative procedure will apply. The ordinary legislative procedure as set out in the TFEU is explained in so far as it is relevant for this study.
Article 289 (1) TFEU provides the legal basis for the ordinary legislative procedure, which states that “the ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in article 294”.13
The ordinary legislative procedure14 includes different stages of negotiations between the EP and the Council, with the Commission as facilitator. First, the Commission shall submit a proposal. Then the EP and the Council will have several stages of readings, where they both adopt a position on the proposal and try through amendments and negotiations to come to one agreement on a proposed act. The proposed act will consist of secondary legislation, ex article 288 TFEU.
Three European bodies are involved in this procedure:
1. European Parliament: “shall be composed of representatives of the Union’s citizens”.15 With a total of 750 members and a President, between six and ninety-six members per Member State shall take seat at the EP. According to article 14 (1) TFEU the European Parliament shall exercise legislative and budgetary functions. 2. Council: “shall consist of a representative of each Member State at ministerial level”.16 The Council will decide by qualified majority and its tasks are to exercise legislative and budgetary functions, policy-making and coordinating functions. 3. The Commission: “shall consist of one national of each Member State”17, which means the Commission consists of 28 members. “the members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independent is beyond doubt”.18 Its task is inter alia to promote the general interest of the Union, take initiatives and submit proposals.
10 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/51 11 Paul Craig and Grainne de Burca, EU Law text, cases and materials, (5th edn, Oxford 2011) 77 12 Christopher Lord and Paul Magnette, E Pluribus Unum? Creative Disagreement about Legitimacy in the EU, (JCMS: Journal of Common Market Studies, V42 n1 2014) 184-193 13 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/172 14 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/173 15 Consolidated Version of the Treaty on European Union [2012] OJ C326/22 16 Consolidated Version of the Treaty on European Union [2012] OJ C326/24 17 Consolidated Version of the Treaty on European Union [2012] OJ C326/25 18 Consolidated Version of the Treaty on European Union [2012] OJ C326/25
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Furthermore, it is important to understand that in this context the secondary legislation that will results from the ordinary legislation procedure will mostly concern regulations. Regulations “shall be binding in its entirety and directly applicable in all Member States”.19
1.3 The Common Fisheries Policy The Common Fisheries Policy (hereinafter: CFP) is a complex set of rules and policies, trying to manage all the European fishing fleets in all the European waters and to conserve the fishing stocks. With the CFP the Union tries to manage a common source20, but considering the great variety in different species and areas where fishermen are active. This is not an easy task. To be able to understand the CFP, it is useful to first have a quick overview of its history. The website of the EP explains the history of the CFP in a very clear and brief way. The next paragraph is based on the information from this website21 and based on fragmentations of the book “The Common Fisheries Policy: The Quest for Sustainability”.22
After World war II there was a great need to boost the agriculture in order to feed the population. This resulted in a specific legal basis for the Common Agricultural Policy (hereinafter: CAP).23 There was no need for a specific legal basis for the Common Fisheries Policy, because at that time fisheries were not considered to be an area that needs regulation at European level. The CAP survived the different alterations and has remained almost unchanged in the Lisbon Treaty (TFEU). The objectives are set out in article 38 TFEU. These objectives can be in conflict with each other when applied in the field of fisheries. For example, the more fish you will catch today, the less fish you will catch tomorrow: there can be different effects in the short- or long term. It was not until the Treaty of Maastricht that the CFP was first recognised as a policy on its own, however the objectives as set out in the Treaties remained the same as for the CAP.24 The last reform of the CFP was in 2013. Despite the lack of a separate legal basis, the Common Fisheries Policy has been subject to many alternations and modifications over the last decades. Although it has been one of the longest standing policies of the Union (established in the 1970’s), it has suffered a lot of criticism.
As briefly set out above the CFP has evolved from the Common Agriculture Policy. Since the 1970 the EU adopted secondary legislation to organize a policy and market for fisheries. The first two regulations based on the CFP were adopted in 1983, therefore this date is considered to be the starting point. The first regulations include two basic principles: “1: do not catch too much fish and 2: do not catch small fish”.25 Over the years several regulations have been adopted and improved, however these two principles have remained. Historically the CFP has been a lot about targets and quotas. In 2002 the Council26 adopted several Regulations and reformed the CFP. This reform was mainly focussed on the objective “to ensure a sustainable future for the fisheries sector by guaranteeing stable incomes and jobs for fishermen and supplying consumers, while preserving the fragile balance of marine ecosystems”.27 In 2013 the last reformation of the CFP took place, which
19 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/171 20 European Commission, ‘The Common Fisheries Policy (CFP)’ < https://ec.europa.eu/fisheries/cfp_en> accessed 12 January 2019 21 Carmen-Paz Marti, ‘The Common Fisheries Policy: origins and development’ (European Parliament, October 2018)
9 was proposed by the Commission in 2009. Regulation 1380/201328 is the most important legal document that resulted from this reform. The objectives of this new reform are laid down in article 2 of Regulation 1380/2013. One of the most important aims is “to ensure that the activities of the fishing and aquaculture sector are environmentally sustainable in the long term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits”.29 Regulation 1380/2013 will be mostly used for this research.
Since the reform of 2013 the CFP has been subject to two important legal changes within the TFEU. First, article 3 (1) d TFEU “the conservation of the marine biological resources under the CFP” remains one of the five areas where the Union has exclusive competence. The second change is that of article 43 (2) TFEU, where it has been established that there will be co-decision between the European Parliament and the Council and that they will apply the ordinary legislative procedure. This has been the last reform, and this will form the legal framework for this study.
1.4 The legal basis and objectives of the CFP: There is no explicit reference to the Common Fisheries Policy. The reason why is already explained. Title III TFEU refers to the CAP, which includes articles 38 to 44 TFEU, which forms the legal basis of the CFP. Art 38 TFEU explains that the term ‘agriculture’ within the TFEU shall also include the term fisheries.30 Art 39 TFEU sets out the objectives of the CAP and the CFP but does not provide an overall definition of the CFP. Articles 40 and 41 TFEU further arrange how to enable the objectives as set out in article 39 TFEU. Article 43 TFEU explains the implementing measures and legislative procedure. This articles states that the Commission shall submit proposals for working out and implementing the CAP (and therefore also for the CFP). The European Parliament and the Council will act according to the ordinary legislative procedure31 as set out in art 289 TFEU and explained in chapter 1.1.
The legislative procedure of the CFP is laid down in article 43 TFEU.32 This article states that the ordinary legislative procedure is used to adopt new regulation based on the CFP. The Commission may propose this, and the EP and Council will enter negotiations. Since the last reform of the CFP in 2013, there has been some problems with the interpretation of article 42 and 43 TFEU. But for this study, it is enough to understand that the ordinary legislative procedure, as explained in chapter 1.2, is used.
There is no definition of the CFP in the treaties. European institutions like the European Commission (hereinafter: EC) and the European Parliament (hereinafter: EP) give a definition of the CFP. According to the website of the EC the Common Fisheries Policy is: “a set of rules for managing European fishing fleets and for conserving fish stocks. Designed to manage a common resource, it gives all European fishing fleets equal access to EU waters and fishing grounds and allows fishermen
28 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/22 29 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 30 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/62 31 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/64 32 Carmen-Paz Marti, ‘The Common Fisheries Policy: origins and development’ (European Parliament, October 2018)
10 to compete fairly.”33 According to the website of the European Parliament34 “the primary goal of the CFP is to ensure sustainable fisheries and guarantee incomes and stable jobs for fishermen.”35
I believe one of the reasons why there is not one definition of the CFP is that with each amendment and reform the aims and objective of the CFP change a bit. With this change the content of the CFP also changes, and therefore it can be stated that the definition may be subject to alteration. The definition of the CFP is closely connected to the aims and objectives, because they colour the CFP and help understand what it meant.
The objectives of the CFP originally were focussed on the economy and internal market and had very little to do with the environment and sustainability. In was not until the last reform of the CFP in 2013 that environmental sustainability was implemented. As stated before, the Commission published a Green Paper in 200936 on the last reform of the CFP, which is the most recent Green Paper from the Commission about the reform of the CFP. In this paper the Commission emphasized, among other things, that there is a need for sustainability. The CFP needs to be drastically reformed to tackle current problems like overfishing, fleet overcapacity, subsidies etc.37 The Commission showed five structural failings that needed to be changed in the reformed CFP of 2013:
The Commission considered that the above outcomes are due to five main structural failings:
– a deep-rooted problem of fleet overcapacity;
– imprecise policy objectives resulting in insufficient guidance for decisions and implementation;
– a decision-making system that encourages a short-term focus;
– a framework that does not give sufficient responsibility to the industry;
– lack of political will to ensure compliance and poor compliance by the industry.38
From these failings new/reformed objectives of the CFP have been stated in Regulation 1380/2013. The environment and sustainable fisheries have become more important. The main objectives of the CFP, since its reform in 2013, are the following:
1. “Ensure that fishing and aquaculture activities are environmentally sustainable in the long- term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.” 2. “Shall apply the precautionary approach to fisheries management and 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.” 3. “Shall implement the ecosystem-based approach to fisheries management so as to ensure that negative impacts of fishing activities on the marine ecosystem are minimised and shall endeavour to ensure that aquaculture and fisheries activities avoid the degradation of the marine environment.”
33 European Commission, ‘The Common Fisheries Policy (CFP)’ < https://ec.europa.eu/fisheries/cfp_en> accessed 7 February 2019 34 Carmen-Paz Marti, ‘The Common Fisheries Policy: origins and development’ (European Parliament, October 2018)
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4. “Shall contribute to the collection of scientific data.” 5. “The last objectives focus on different issues as the elimination of discards and unwanted catches, economic conditions and competition, adjustment of fishing capacity, development of sustainable Union aquaculture, transparent internal market and such.”39
The Common Fisheries Policy is meant to regulate the conservation of fishing stocks and to control European fishing fleets. Since the reform of 2013 the CFP has been subject to two important legal changes within the Treaties. First, article 3 (1) d TFEU “the conservation of the marine biological resources under the CFP” remains one of the five areas where the Union has exclusive competence. The second change is laid down in article 43 (2) TFEU, where it has been established that the European Parliament and the Council will co-decide on secondary legislation that flows from the CFP and that they will apply the ordinary legislative procedure. Although these modifications have been made, there is still no separate legal basis for the CFP. One of the main objectives of the CFP since the last reform in 2013 is the aim that the CFP shall ensure environmentally sustainable fisheries.
For this study, only the first objective that aims for “environmentally sustainable fisheries” is important. This objective falls within the exclusive competence of the CFP, namely under the conservation of marine biological resources under the Common Fisheries Policy, according to article 3 (1) under d TFEU.
1.5 Interim conclusion: How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy?
In general, the competences between the Union and its Member States are based on the principle of conferral. The Union “may have exclusive competence, shared competence, or competence only to take supporting, coordinating, or supplementary action”.40
The CFP in general is both part of the area of shared competence and the area of exclusive competence. According to art 4(2) d TFEU a part of the CFP falls within the area of “agriculture and fisheries, excluding the conservation of marine biological resources.” The conservation of marine biological resources falls within the area of exclusive competence, ex art 3(1) d TFEU.
This study solely deals with the part of the CFP that fall within the exclusive competence of the Union, namely objective 1 of Regulation 1380/2013 on “environmentally sustainable fisheries”. What is to be understood is that once an area is of exclusive competence, the Member States have no say in the legislative procedure. The ordinary legislative procedure is used to adopt new legislation that falls under the CFP.
39 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 40 Paul Craig and Grainne de Burca, EU Law text, cases and materials, (5th edn, Oxford 2011) 94
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Chapter 2 – What is the meaning of “environmentally sustainable fisheries” and what instruments can be used?
As explained in chapter one, one of the main objectives of the CFP since the last reform in 2013 is the aim that the CFP shall ensure environmentally sustainable fisheries. The next part analyses this aim and looks at the legal meaning of “environmental sustainability”. The ecosystem-based approach and the precautionary principle are used to uncover the meaning of environmental sustainability in the context of the CFP.
2.1 Definition of “environmental sustainability”: In many European treaties, secondary legislation and policies it is stated that the environment and sustainability need to be considered. Even though “environmental sustainability” is mentioned in the law all around, there is not legal definition to the term. Let us start by looking at the general meaning. The Oxford dictionary gives the following description to the term “sustainability” 41: “The ability to be maintained at a certain rate or level” and the “avoidance of the depletion of natural resources in order to maintain an ecological balance.” The same dictionary describes the environment42 in the context of nature as follows: “The environment: The natural world, as a whole or in a particular geographical area, especially as affected by human activity.” – “The surroundings or conditions in which a person, animal, or plant lives or operates.”
Environmental sustainability is about the balance of (natural) sources and about the way the natural systems function and remain functioning properly. Environmental sustainability means that the environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time. What does this mean in the legal context? Klaus Bosselmann43 has a theory on sustainability. He describes the term as being simple and complex at the same time. In short, sustainability is simple because “the basic rule of human existence is to sustain the conditions life depends on.” Sustainability is also complex, because according to Bosselmann: “sustainability is like justice, it is difficult to categorically say what justice is.” 44 There is not one definition of “environmentally sustainability”. It depends on the circumstances how environmental sustainability can be defined. A good general definition is: “The environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time”.
An example on what “environmentally sustainable” legally means and how it can be enforced is shown in the Urgenda case. In 201545 the District Court of The Hague ruled for the first time ever in the world (!) that the Dutch government could be held legally responsible for not taking effective action on climate change. They ruled that the Dutch government has to take more effective action to cut the greenhouse gas emissions by at least 25% at the end of 2020. The UN Framework Convention on Climate Change was used as a legal basis to show that the Dutch government was not actively participating in making sure that the Netherlands are environmentally sustainable46. This shows that the environmental sustainability can be enforced!
41 Oxford Dictionaries, ‘sustainability’
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2.2 Legal meaning of environmental sustainability in the context of the CFP Objective 1 of Regulation 1380/2013 states: “The CFP shall ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies.”47
In many, if not all, secondary legislation based on the CFP protection of the environment, the protection of the ecosystems and/or sustainability is mentioned. However, none of them define what is meant by this and little guidance is given on how to implement issues regarding environmental sustainability. Because Regulation 1380/2013 is the most relevant regulation for this study, this regulation is evaluated to show what environmental sustainability means in the context of the CFP. Regulation 1380/2013 does not explain what is meant by the term “environmentally sustainable”, but the principle is mentioned in multiple places. In the preamble several paragraphs refer to the protection of the environment. For example, paragraph 11 states that “the CFP should contribute to the protection of the marine environment, to the sustainable management of all commercially exploited species, and in particular to the achievement of good environmental status by 2020.” Paragraph 13 states that “environmental impacts of fishing activities should be limited, and unwanted catches should be avoided and reduced as far as possible.” Paragraphs 39 and 46 stipulate that member states must cooperate at a regional level for the development of conservation measures, and measures in areas protected by environmental law. Member states should collect data on their fishing activities and fleets to provide for the best available scientific data to be able to foresee any potential environmental impact. In article 2(5) sub j of Reg. 1380/2013 it is stated that the CFP shall be coherent with the Union environmental legislation and other policies.
Regulation 1380/2013 mentions that the environment is of great importance and that the fisheries and fishing activities should be environmentally sustainable. Regulation 1380/2013 is part of the CFP, which is part of the TEU and TFEU. This means that the relevant articles and objectives of the treaties should be considered. For the aspect of the environment, the CFP should take into account article 11 TFEU, which states: “Environmental protection requirements must be integrated into the definition and implementation of the Union policies and activities, in particular with a view to promoting sustainable development.”48 Ernesto Penas Lado gives an explanation on what this means for the CFP:
“This does not mean that the CFP is in any way hierarchically dependent on environmental policy. It means that when managing fishery resources, the CFP must take into account environmentally concerns.”49
Within the CFP, environmental sustainability means that the CFP needs to take into account environmental concern when implementing/executing their policies. The general definition of environmentally sustainable “that the environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time”, can be applied to the CFP. It is not explained clearly what is meant by this term: when is an activity environmentally sustainable? The following elements always come back when dealing with this question. First, the environment/ecosystem we are dealing with needs to be uncovered, followed by an explanation of the human role in this part of the
47 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 48 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/53 49 Ernesto Penas Lado, The Common Fisheries Policy: The Quest for Sustainability, (Wiley-Blackwell 2016) 341
14 environment/ecosystem. Finally, the connection the two to see how they are balanced and uncover what level can be maintained when this human activity will continue. Look for aspects that can be improved and needs to be changed to aim for environmental sustainability. An activity is environmentally sustainable when “the environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time”.
2.3 Legal instruments to achieve environmental sustainability In the search for environmental sustainability, the ecosystem-based approach and precautionary principle are relevant. These principles become more and more a spoken topic in legal systems and is broadly discussed by academics. The ecosystem-based approach is a management principle, a strategy to manage water, land and living resources in a sustainable way.50 The precautionary principle deals with areas which can be harmful to the environment and where there is not enough scientific research to back up new legislation. Within the ecosystem-based approach the precautionary principle can be used.
Ecosystem-based approach Jill Wakefield quotes a very clear definition of the ecosystem-based approach in the book: “The Ecosystem Approach on Ocean Governance”51, which is the following:
“The ecosystem-based approach is intended to ensure that human activities are kept to a level that is compatible with the achievement of good environmental status and do not compromise the ability of marine ecosystems to withstand human-induced changes while ensuring inter-generational equity.” This approach aims to balance three objectives: Conservation, sustainable use and fair share of the benefits of genetic resources (the balance). The ecosystem-based approach is “generally seen not as a strategy that manages the ecosystems themselves, but rather one that manages the human activities that have an impact on ecosystems”.52
One of the objectives of the CFP is that the ecosystem-based approach shall be implemented to fisheries management53, with the aim to minimize the negative environmental impacts of fishing activities. This approach involves multiple disciplines which makes it a very complex approach. It is not elaborated in the regulations and treaties how to balance and manage this approach. A few elements are important to consider when dealing with the ecosystem-based approach. First, the identification of the ecosystem (physically, biologically, human-dependency).54 This element is about uncovering the ecosystem. That is the physical place, what flora and fauna is involved and what is the human-dependency to this ecosystem? Secondly, the managing of land, water and living resources, influence of humans. Once the ecosystem is identified, the current management system needs to be exposed to see what changes can be made to apply an ecosystem-based approach. Elements that needs to be considered here are how the land, water and living resources are used by humans and what their influence is. Finally, the aim for conservation, sustainable use and fair share
50 David Langlet and Rosemary Rayfuse, The Ecosystem Approach in Ocean Planning and Governance: An introduction, vol 87 (Brill Nijhoff 2018) p 1-14 51 Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018) 52 Kees Bastmeijer, ‘The Ecosystem Approach for the Marine Environment and the Position of Humans: Lessons from the EU Nature 2000 Regime’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018) 53 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 54 JNCC, ‘The Eco-system based approach’ (JNCC)
15 of benefits (include precautionary principle).55 The aim for conservation may include the precautionary principle, because this method can be used adopt measures to prevent environmental damage when scientific evidence is lacking. This falls within the ecosystem-based approach because the precautionary principle can contribute to good environmental status.
Precautionary principle A good definition of the precautionary principle is the following: “The precautionary approach is an international standard according to which ‘the absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment”.56 According to the website of the EP the precautionary approach, or precautionary principle “enables decision-makers to adopt precautionary measures when scientific evidence about an environmental or human health hazard is uncertain and the stakes are high”.57 Action can be taken in situations where there is a potential threat of health of for the environment, but there is not (yet) enough scientific evidence to prove this. The precautionary principle is used as a reason to take action to protect the environment, when evidence is lacking. The precautionary principle is “a response to this uncertainty”.58
This principle is both a principle of national and international law. The precautionary principle is a far-reaching agreement attempted in the Rio Declaration.59 In the Rio Declaration principle 15 covers the precautionary principle. Here is explained that this principle changes the burden of proof. The question is: “Should policies and regulations “permit-until-proved-harmful” or “prevent-until-proved- safe”?”.60 There is a shift in the burden of proof, in public policy making, when the precautionary principle is applied because “the burden of proof is placed on decision makers such that responsibility falls on the decision-maker to show that a decision will not result in harm to the environment.”61
2.4 Legal instruments on environmental sustainability within the CFP Besides the mentioning of the precautionary principle and ecosystem-based approach in the legislation, the CFP uses two main methods to reach for sustainability, which are the Maximum Sustainable Yield (hereinafter: MSY) and the use of scientific research. The CFP uses the MSY and scientific research to achieve the objective of environmentally sustainable fisheries.
55 European Commission, Commission sets out position on ecosystem-based approach to fisheries (Cmd 556, 2008) 56 Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018) 57Didier Bourguignon, ‘The precautionary principle: definitions, applications and governance’ (European Parliament, December 2015)
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Ecosystem-based approach and the precautionary principle within the CFP The CFP states to implement both the precautionary principle62 and the ecosystem-based approach.63 Furthermore, the Union, and therefore the CFP, is a contracting party of the UN Fish Stock Agreement, which is also referred to in paragraph five of the preamble of Regulation 1380/2013. In this agreement it is stated that ecosystem-based management should be implemented. Within the CFP, in regulation 1380/2013, the precautionary principle is introduced to prevent damage.64 The ecosystem-based approach, including the precautionary principle within the CFP both aim for environmentally sustainable fisheries. These principles include many areas and disciplines, which makes this material complex. It is not elaborated on how to implement these approaches in practice in specific areas, which results in a big search for the best approach.
The CFP explicitly refers to the precautionary principle in the TFEU and in its secondary legislation. In article 191 sub 2 of the TFEU it is stated that the environmental policy of the Union shall be based on the precautionary principle. With this article, the precautionary principle is legally binding under EU law. Paragraph 10 of the preamble of regulation 1380/2013 states that “sustainable exploitation of marine biological resources should be based on the precautionary approach”65; article 4 sub 1 under 8 of the Regulation defines the precautionary principle. One of the objectives66 of the CFP is to apply the precautionary principle. Article 9 sub 2 of Regulation 1380/2013 connects the precautionary principle to the Maximum Sustainable Yield.
In the Guidelines of the International Union for Conservation of Nature Council (hereinafter: IUCN Council) provides a guideline on how “to apply the precautionary principle effectively”.67 When dealing with the precautionary principle the following steps68 needs to be considered. There needs to be a situation of uncertainty. First, there is not enough scientific research (yet) to fully know the consequences of a measure, this makes it an uncertain situation. Secondly, there needs to be a threat of environmental damage. When there is no indication, the principle will not apply. Next, the more serious and/or irreversible the potential harm is, the more important role there is for the precautionary principle. Finally, there needs to be a causal link between the action and environmental damage. The precautionary principle is used as last resort; only when there are no other legal measures to reverse/counter environmental damage. When these steps are met, the precautionary principle might apply to the situation.
62 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 63 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 64 Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018) 65 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/23 66 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 67 IUCN Council, ‘Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management’ (67th meeting of the IUCN Council, May 2007) 5-10 68 IUCN Council, ‘Guidelines for applying the precautionary principle to biodiversity conservation and natural resource management’ (67th meeting of the IUCN Council, May 2007)
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Taken the above into consideration, there are many references to the ecosystem-based approach and precautionary principles, but it is not clear how what they entail exactly and how they are executed.
MSY Since the 2013 reform the CFP also further developed the MSY and legislated it as an objective of the CFP. This means that it is a policy objective and therefore it is now a legal obligation.69 The MSY is the maximum catch that can be taken from a population over an infinite period of time, this is also included in the objectives in Regulation 1380/2013.70 The MSY is only taken into account to the extent that it is relevant for the aim “environmentally sustainable fisheries”. The Commission wrote a communication to the EP and the Council on how to improve the fisheries by gradually phasing out overfishing through the MSY.71 At the World Summit on Sustainable Development at Johannesburg in 2002 the Union and the Member States have committed to maintain and restore fishing stocks by using the MSY.72 The MSY includes formulas and targets that can measure how much fish there can be taken from a stock that is remains intact. Many fish stocks are “unhealthy”, which means that too much fish is taken out of the stock and extinction is around the corner. The MSY aims to restore these stocks. The restore of the MSY is a way to prevent and restore overfishing and ensure that human activities are within the limits of good environmental status.
The MSY is a way to accomplish an environmentally sustainable fishing stock, but there is no guideline provided on which objectives have the privilege when taking decision on the base of the MSY (as spelled out in Chapter 1.2). For example, a different outcome on the MSY is wanted when looking at the environmentally sustainable or economically sustainable aim. It also differs when looking at short- or long-term decisions. This means that on paper the MSY is a great way to accomplish environmentally sustainable fisheries, but this will not always be the case in practice. Non the less, it can be stated that the MSY is one way for the CFP to accomplish the objective of environmentally sustainable fisheries.
Scientific research Conducting scientific research is another way to aim for environmentally sustainable fisheries. Scientific research can be used as evidence in policy making to decide on managing fisheries.73 Scientific research explored the effects of new methods. It is important for the development of policy making within the CFP. Policy makers usually consider these results before taking any decisions. In areas where there are no clear results on the environmental effects, the precautionary principle is a way to act where there is a potential threat of environmental harm.
Multiple scientific bodies are established who consult the Commission on matters of conservation and living marine resources. For example, the Scientific and Technical Committee of Fisheries (hereinafter: STECF) and the International Council for the Exploitation of the Sea (hereinafter: ICES). These bodies collect data from commercial vessels and from surveys, which they analyse. Many European vessels collect data and conduct research while working at sea. This results in a stable
69 Ernesto Penas Lado, The Common Fisheries Policy: The Quest for Sustainability, (Wiley-Blackwell 2016) 451 70 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/29 71 Commission, ‘Implementing sustainability in the EU fisheries through the Maximum Sustainable Yield’ (Communication) COM (2006) 360 final 72 Commission, ‘Implementing sustainability in the EU fisheries through the Maximum Sustainable Yield’ (Communication) COM (2006) 360 final 3 73 Ernesto Penas Lado, The Common Fisheries Policy: The Quest for Sustainability, (Wiley-Blackwell 2016) 315
18 network of available scientific content. These institutions can answer specific scientific questions on request of the Commission and her Member States.
2.5 Interim conclusion What is the meaning of “environmentally sustainable fisheries” and what instruments can be used?
The meaning of environmentally sustainable fisheries is that the environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time. The instruments that can be used, and that are used within the CFP are the ecosystem-based approach, are the precautionary principle, the MSY and conducting scientific research.
The term “environmentally sustainable” is represented everywhere within the law. A good general definition is: “The environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time”. The CFP has multiple ways to integrate “environmentally sustainability”, under which the ecosystem-based approach, the precautionary principle, the MSY and conducting scientific research.
“The ecosystem-based approach is intended to ensure that human activities are kept to a level that is compatible with the achievement of good environmental status and do not compromise the ability of marine ecosystems to withstand human-induced changes while ensuring inter-generational equity.”74 This approach shall be implemented to fisheries management, according to the aims of the CFP, with the aim to minimize the negative environmental impacts of fishing activities. This approach aims to balance three objectives: Conservation, sustainable use and fair share of the benefits of genetic resources (the balance). However, there is little guidance on how to implement this approach.
“The precautionary approach is an international standard according to which ‘the absence of adequate scientific information should not justify postponing or failing to take management measures to conserve target species, associated or dependent species and non-target species and their environment”.75 This approach shift the burden of proof, because this is placed in the hands of the decision makers. To analyse whether the precautionary principle can be applied, the following elements are important. There needs to be a situation of uncertainty; there is not enough scientific research (yet) to fully know the consequences of a measure, this makes it an uncertain situation. Secondly, there needs to be a threat of environmental damage. When there is no indication, the principle will not apply. Next, the more serious and/or irreversible the potential harm is, the more important role there is for the precautionary principle. Finally, there needs to be a causal link between the action and environmental damage. The precautionary principle is used as last resort; only when there are no other legal measures to reverse/counter environmental damage.
The MSY includes formulas and targets that can measure how much fish there can be taken from a stock while it remains intact for an infinite period of time. Many fish stocks are “unhealthy”, which means that too much fish is taken out of the stock and extinction is around the corner. The MSY aims to restore these stocks. Scientific research is used as evidence in policy making to decide on managing fisheries and exploring the effects of new methods and to look for new techniques that aim for more environmentally sustainable fisheries.
74 Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018) 75 Idem
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Chapter 3 – Would the answers to subquestions 1 and 2 leave space for an allowance of pulse fishing?
3.1 The pulse fish case Pulse fishing is a method of fishing for flatfish, mostly used for sole, plaice and scrimps. The Wageningen University explains very clear what the different is between the ‘traditional’ way of pulse fishing and the ‘new’ electrical way of pulse fishing: “The traditional beam-trawl fishery for flatfish uses so-called tickler chains to startle fish like common sole and plaice and make them leap into the net. The chains are dragged over the seabed, disturbing the sediment and causing mortality of organisms in the trawl track. In the fishery using the pulse technique, the tickler chains have been replaced by electric pulses to make the flatfish leap into the net”.76
For this study, the term “pulse fish case” means the debate within Europe on the pulse fish technique and the manifold use of this technique in the Netherlands.
The current situation on pulse fishing in Europe For the last decade, the Netherlands have been granted multiple derogations to conduct pilot projects and conduct research projects on the environmental and ecological effect of electric pulse fishing. It was not before October 201777 that BLOOM association (a French Non-profit organisation that aims to preserves the marine environment and is a form opponent of the pulse fish technique) filed an official complaint against the Netherlands at the Commission. Their complaint entails that the derogations have been granted “illegally” to the Netherlands and should be repealed. On November 21, 201778, the EP conducted a vote on the matter. They voted that, because pulse fishing is still in the “research phase”, that no decision will be made in this matter until the results of these researches are known. Then, merely two months later, on January 16, 201879 the European Parliament voted for total ban on electric pulse fishing in the EU. Finally, on February 13, 201980, after negotiations between the council and EP, the European Union voted for a total ban on pulse fishing. The latest news is that only 5% of the Dutch vessels may keep on using pulse fishing, all other derogations will be withdrawn.81 Because this decision of the Union is very recent, there are no official reports known yet when writing this study. This means I got my information from the news items and not from official reports from the EP, Commission and Council. In the new legislation, that will probably enter into force on June 1, 2019, there will be a clause that allows reconsideration on this decision when new scientific research shows that electric pulse fishing will do no harm to the environment and ecosystems. For the Dutch fishermen, this means that they all must change their fish gear and will most probably lose most, if not all, of their investment.
76 Wageningen University and Research, ‘Pulse Fishing’
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Development of pulse fishing within the Netherlands: The University of Wageningen has done a lot of research on the pulse fishing. They published a report on the effects on landings and discards, the effects on the ecosystems and provide a historical overview. It is not necessary to reinvent the wheel; therefore, the next part is based on the collected information from Wageningen university on the historical development on pulse fishing.82
In the 1970s the use of electric pulse fishing has made its introduction. Because this was an experimental way of fishing it was permitted within the European Union. In 198883 this was put to an end by a total European ban on the use of electric pulse gear for fishing. In 1998 Regulation 850/1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms entered into force. In the years coming several amendments have been made that made it possible to conduct technical research on the effects of electric pulse fishing, starting with the amendment in 2006. These amendments made it possible for the Netherlands (and other Member States) to be granted a derogation from the ban on electric pulse fishing. Paragraph 2 of article 31 (a) of Council Regulation 850/98 states that “electrical pulse fishing shall be allowed only when no more than 5 % of the beam trawler fleet per Member State use the electric pulse trawl”. The Netherlands have been granted several derogations from the ban on pulse fishing, based on three different legal grounds:
a) Based on article 31(a) paragraph 2 Regulation 850/9884, the Netherlands reached the maximum of 5% of the fleet using electric pulse fishing in 2010. This means that by that time 22 vessels are equipped with the electric pulse fish technique. b) In the next few years the European Commission grants multiple derogations, this time based on article 43 of Regulation 850/1998. The legal condition is that pulse fishing operations are conducted solely for scientific research and therefore the ban on pulse fishing as set out in Regulation 850/1998 shall not apply.85 Hence, another 22 derogations are granted. c) In 201386 the Netherlands are granted another 42 derogations, this time based on article 14 of Regulation 1380/2013.87 This article allows Member States to conduct pilot projects, based on the best available scientific advice to aim for the minimisation and elimination of unwanted catches.
Considering the great investments that must be done to make a vessel ready for electric pulse fishing (between 250.000 to 300.000 euros per vessel), not all derogations are being used. The Netherlands have a total of 84 vessels using the electric pulse fishing technique. Around 75 vessels
82Floor Quirijns and others, ‘Flatfish Pulse Fishing: Research Results and Knowledge Gabs’ (IMARES Wageningen UR, 3 December 2013)
21 are used to catch flatfish like sole and plaice, 9 vessels are used to catch North Sea scrimps.88 Because the Union voted for a total ban, many fishermen will lose their investment and might probably lose their job. Derogations The derogations are based on three different legal grounds.
Derogation of maximum 5% of the fleet using pulse fishing:
Article 31 (a) of Regulation 850/1998 states that a derogation can be made from article 31 of Regulation 850/1998, which explains the prohibition of using electric currents as a fishing method. Article 31 (a) under 1 explains the areas in which the derogation may take place, this includes parts of the North Sea (see art 2, ICES divisions IVc and IVb). Paragraph 2 of article 31a explains the conditions under which electric pulse fishing is allowed. These include that no more that 5% of the beam trawler fleet met Member State may use the electric pulse trawl; the maximum electrical power in kW is limited; the effective voltage between the electrodes is limited as well; the vessel must be equipped with an automatic computer management system which records the maximum electrical power and effective voltage and it is prohibited to use one or more tickler chains in front of the footrope. Furthermore, the specific fishing permit shall define the species, areas and time periods.89
Derogations based on article 43 Regulation 850/1998:
The Dutch fleet is granted another 22 derogations under article 43 Regulation 850/1998 by the European Commission. The legal ground for these derogations is that these pulse fishing operations are conducted solely for scientific research and therefore Regulation 850/1998 shall not apply.90
Article 43 of Regulation 850/1998 states that: “this Regulation shall not apply to fishing operations conducted solely for the purpose of scientific investigations which are carried out with the permission and under the authority of the Member State or Member States concerned, and of which the Commission and the Member State or Member States in whose waters the research is carried out have been informed in advance.”91 Between 2011 and 2013 multiple derogations have been granted to the Netherlands to conduct pulse fishing operations solely for scientific investigations.
Derogations based on article 14 of Regulation 1380/2013.
Article 14 of Regulation 1380/2013 grants another great number of derogations to the Dutch fleet, this time under the cloak of pilot projects with the aim to minimize unwanted catches.92 The Dutch were not very eager to conduct scientific research on the pilot projects ones they made use of the derogations; they were mostly focussed on the commercial purposes.
88 Nederlandse Vissersbond, ‘Wat is pulsvisserij?’ (Nederlandse Vissersbond)
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All these derogations have been granted to the Dutch fishing fleet after intense lobby campaigns by the Netherlands. These derogations are granted on the condition that the Netherlands conduct scientific research. One of the biggest research projects on the long-term effect of pulse fishing is called Impact Assessment of Pulstrawl Fishery.93 This project investigates the long-term effect on commercial use of pulse fishing and will be completed in December 2019. Besides this research on the long-term effects, much research has been done on the short-term effects, from which the results are already made public.
3.2 Scientific research on pulse fishing The derogations that have been granted to the Dutch vessels, were in first instance mostly used for commercial interest. Only in 2017, all pulse fish vessels were equipped with computers to conduct research. Before 2017, some vessels were already conducting research, but they could not provide enough inside.
The results of the long-term effects on pulse fishing are not completely known yet, but many data have been collected and research has been done on the short-term effects. A report of the short- term effect on electric pulse fishing from ICES, a comparison study done by ICES, a report from Wageningen University and an article from BLOOM are covered in this paragraph. The reason why only “Dutch” and European reports are used in this study, is that pulse fishing is a typically Dutch issue. This means that other European countries did not conduct this kind of research, they simply did not have the interest. One of the reasons for this is that most European countries do not attach to the North Sea and do not have any vessel there. BLOOM did not conduct research either, they used already conducted research in their articles. To make the comparison of the reports as objective as possible, two European and one BLOOM report is included.
ICES
The Commission requested94 ICES (International Council for the Exploration of the Sea) to collect data and ask several questions about possible effects of the pulse fish technique.95 In its conclusion ICES states that with the available information it can be concluded that using electric pulse trawl gear has a positive effect compared to the traditional bear trawl gear in multiple ways. It reduces the catch rate of undersized sole, there is a lower mortality for several non-targeted species and because of the lighter gear on the vessel the consumption of fuel is reduces by around 40%. Furthermore, there is a decrease in swept area, because the vessel travels with lower speed. E.g., the sand bed is not disturbed that much by the electric beam-trawl than with the traditional flatfish technique. The ICES conclude that further research is needed before there can be a final conclusion of the overall effects on the ecosystems. The results that can be drawn from this research show a more environmentally sustainable effect, compared to the traditional beam-trawl method.
ICES conducted another research, which is titled: “The Netherlands request on the comparison of the ecological and environmental effects of pulse trawls and traditional beam trawls when exploiting the
93 Royal Netherlands Institute for Sea Research, ‘PULS_Impact Assessment of Pulse Trawl Fishery (IAPF)’ (NIOZ)
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North Sea sole TAC”.96 In short, ICES conclude that there are fewer environmental and ecological effects when using the electric pulse trawls than when the traditional beam trawls are used. The main arguments are that injuries on fish during the catch are lower, electric pulse trawls do not penetrate as deep into the sand as traditional beam trawls, which results in less damage on the sea bed. The effects on the ecosystem are less, in so far this can be concluded by the research that has been done so far. The only negative impact is that “round fish” like cod can suffer injuries, however, ICES argues, most “round fish” suffer injuries from the traditional beam trawls as well. This means that there is not more mortality among “round fish” when using electric pulse trawls.
Wageningen University
Wageningen University has reported in December 2016 the current knowledge on the effects of pulse fishing in the North Sea.97 They summarized different elements of the pulse fishing technique. The different kinds of electric pulse fish gear and the strength, voltage and frequency of the electric pulses are evaluated. Wageningen University concludes that the electric pulses have the most catch- effect on sole and less on other species, for example plaice. Compared to the traditional beam-trawl technique, bycatch and undersized fish is lower when electric pulse fish is being used.
Wageningen University also investigated the effects of electric pulse fishing on the marine organisms. Most species showed a flight response and behaved normally in the next ours/weeks. There were no adverse effects detected on the eggs and larval of the species.98
Round fish as cod and whiting may experience injuries when being exposed to electric pulses. Results show that 9% of the caught cod, and 2% of the caught whiting show a spinal fracture. Further research has been done to this, using a less intense electric pulse. The cod and whiting did not suffer any fractures, and the electric pulses were still strong enough to catch the flatfish.99
This report concludes that electric pulse fishing might be sensitive to round fish and may fracture them, because of the cramp response of the electric pulse. The overall conclusion is that the technique is still in the development phase and further research is needed. The report shows positive results for the pulse fish technique, except for round fish.
BLOOM
BLOOM association is a French non-profit organisation who is firmly against the use of electric pulse fishing. They posted an article100 explaining why the ICES report is not based on the truth. BLOOM starts by saying that ICES conduct this report upon request by the Netherlands and that only already published evidence is used. BLOOM states that the conducted research is of poor quality. They say that because electric pulse fishing might be less bad to the environment than the traditional way, this does not make this technique sustainable. BLOOM argues that the sea bed is indeed affected by the electric pulses. They do not explain very clear how this is affected, they say that different data is
96 ICES, ‘The Netherlands Request on the Comparison of the Ecological and Environmental Effects of Pulse Trawls and Traditional Beam Trawls when Exploiting the North Sea Sole TAC’ (ICES CIEM, 30 May 2018)
24 used by ICES for the electric pulse beam and the traditional beam-trawl and therefore the results are not objective.
BLOOM explains that ICES does not uses size selectivity of the species using the electric gear, which makes it impossible to analyse the impact of bycatch. The article ends by saying that the reduction on fuel consumption is based on fraud. With electric gear the catch quota is reached much faster, therefore less hours and therefore less consumption of fuel is needed. This does not mean that electric pulse fishing uses less fuel by the our/distance.
3.3 Comparison with chapter 1 Subquestion 1 is the following:
How are competences divided between the EU and its Member States in general and more specifically in the context of the Common Fisheries Policy?
Chapter 1 concluded that the CFP in general is both part of the area of shared competence and the area of exclusive competence. According to art 4(2) d TFEU a part of the CFP falls within the area of “agriculture and fisheries, excluding the conservation of marine biological resources.” The conservation of marine biological resources falls within the area of exclusive competence, ex art 3(1) d TFEU. Objective 1 of Regulation 1380/2013 on “environmentally sustainable fisheries” falls within the exclusive competence of the Union.
The first subquestion relates to the pulse fish debate as follow:
Pulse fishing consists of a method of fishing for flatfish, using electric pulses to catch the fish. The Netherlands have been granted several derogations, which makes it possible to practice electric pulse fishing. These derogations find their legal basis is several regulations, as shown in chapter 3.1. these regulations are secondary legislation that flow from the CFP as set out in the Treaties.101 Looking at the primary legislation, as set out in the Treaties, articles 38-44 TFEU and article 3 TEU are the legal basis for the CFP. This is because pulse fishing falls under the conservation of marine biological resources. This means that the decision-making process in the pulse fish case falls within the exclusive area of the Union102. This exclusive competence is conferred upon by the Member States and laid down in article 3 sub 1 under d TEU. The Union has decision-making power when it comes to the pulse fish debate. There are three openings in this lack of competence in this case for member states to “get what they want”. First, in every legislation there are exceptions. In the pulse fish case these are the derogations that have been granted. However not successful for the Netherlands because they will be repealed, this is one way in which a member state might be able to “get what they want”. This is only on paper, because as said, in the pulse fish case the derogations will be repealed and strengthen the fact that member states have no competence. The second way is, that within the process-making the EP and Council is involved. In these institutions ministers and citizens from member states are involved and this way they have some indirect competence. The third way in which member state can “get what they want is through politics and lobbying. In the pulse fish case the Netherlands are on the losing end, but the French performed a great lobby and with that contributed to the decision-making process.
The legislative procedure that is used for the regulations in the pulse fish case is the ordinary legislative procedure, as laid down in article 43 sub 2 TFEU. The Commission has proposed new legislation on the pulse fish technique. As shown in chapter 3.1. the EP voted on November 21,2017
101 Consolidated Version of the Treaty on European Union [2012] OJ C326/17 102 Consolidated Version of the Treaty on the Function of the European Union [2008] OJ C115/51
25 and January 16, 2018 on the pulse fish case. According to the ordinary legislative procedure the EP and the Council are co-legislators and have entered into negotiations to adopt new legislation on the pulse fish case. On February 13, 2019 the European Union came to a decision in Strasbourg that there will be a total ban on pulse fishing in Europe.
3.4 Comparison with chapter 2 Chapter 2 dealt with the subquestion:
What is the meaning of “environmentally sustainable fisheries” and what instruments can be used?
This subquestion relates to the pulse fish case as following:
The meaning of environmentally sustainable fisheries is that the environment, a particular part of nature or ecosystems, as affected by humans is balanced in a way that it can be maintained at a certain level for an infinite period of time. Pulse fishing aims for a more sustainable way of fishing, therefore the objective of the CFP that fisheries shall be “environmentally sustainable” is applicable to the pulse fish case. Scientific research on the short-term effects shows that this technique uses a lot less fuel for its vessels, there is less unwanted by catch, the electric beams-trawls do not touch the surface of the send bed that much and no (substantial) harm is done to the flatfish. The negative impact is that round fish like cod might suffer harm because of the pulses. Scientific research shows that this is not more harmful than when the traditional beam trawls are used, because the same percentage of round fish is injured or dead during traditional fishing operations. The long-term effects have not been known yet, because the results will be published at the end of 2019 or beginning of 2020.
The instruments that are used within the CFP are the ecosystem-based approach, the precautionary principle, the MSY and conducting scientific research.
“The ecosystem-based approach is intended to ensure that human activities are kept to a level that is compatible with the achievement of good environmental status and do not compromise the ability of marine ecosystems to withstand human-induced changes while ensuring inter-generational equity.” 103 This approach shall be implemented to fisheries management, according to the aims of the CFP, with the aim to minimize the negative environmental impacts of fishing activities. This approach aims to balance three objectives: Conservation, sustainable use and fair share of the benefits of genetic resources (the balance). The ecosystem in the pulse fish case covers the Southern part of the North Sea, it mostly involves the species sole and plaice and the human dependency involves many job opportunities and products for the food industry. The current management system of pulse fishing and the ecosystem, including land, water and living resources in regulated by the European Union. The derogations on which the Dutch based their pulse fish vessels are legislated by the Union, who aims to implement the ecosystem-based approach. The current management system is mostly focused on the MSY and on the scientific evidence. This cannot be considered as a complete implementation of the ecosystem-based approach. following elements are important to see whether the precautionary principle can be applied. First, there needs to be a situation of uncertainty; there is not enough scientific research (yet) to fully know the consequences of a measure, this makes it an uncertain situation. Secondly, there needs to be a threat of environmental damage. When there is no indication, the principle will not apply. Next, the more serious and/or irreversible the potential harm is, the more important role there is for the
103 Jill Wakefield, ‘The Ecosystem Approach and the Common Fisheries Policy’ in David Langlet and Rosemary Rayfuse (eds), The Ecosystem Approach in Ocean Planning and Governance, vol 87 (Brill Nijhoff 2018)
26 precautionary principle. Finally, there needs to be a causal link between the action and environmental damage. The precautionary principle is used as last resort; only when there are no other legal measures to reverse/counter environmental damage. In the pulse fish debate, there is no reference that the precautionary principle is taken into consideration or that this principle is used as legal argument. It is unclear what the reason behind this is. A good cause can be that the people who are involved in the pulse fish debate are politicians, fishermen and scientists, not lawyers. Because it is a debate, not a case before a court, the supporters might not realise they could use the precautionary principle in the pulse fish case. They would have had a stronger case if they used the precautionary principle. The precautionary principle is an excellent method to use in a case of scientific uncertainty. The main question in the pulse fish case is whether this is an environmentally sustainable and ecologically friendly way of fishing. The answer to this question is that there is not enough scientific certainty to give a complete answer to this question. However, the scientific research that has been done shows that electric pulse fishing is more environmentally and ecologically friendly and sustainable than when the traditional beam trawl is used. The traditional beam trawls do a lot of environmental damage. this damage is serious and can lead to irreversible damage of the ecosystem and even extinction. There is a clear causal link between the action and the damage, namely without the human action – fishing – there would be no environmental damage. The precautionary principle is applicable to the pulse fish case, because there is a lack of scientific research and the research that has been done points towards a more environmentally sustainable way of fishing. The precautionary principle makes it possible to allow pulse fishing even though there is scientific uncertainty.
The MSY includes formulas and targets that can measure how much fish there can be taken from a stock that is remains intact. Many fish stocks are “unhealthy”, which means that too much fish is taken out of the stock and extinction is around the corner. The MSY aims to restore these stocks. Pulse fishers must take into account the MSY. This means that they need to stick to the specific targets on each species as set out in the regulations. According to scientific research, pulse fishing has a lower unwanted bycatch and lower catch rate of undersized species. Scientific research forms the basis of the pulse fish technique. Many scientists have done research on this technique and the results show mostly upsides. The MSY and scientific research form a big aspect of the pulse fish case, because the MSY sets the targets which the fishermen need to comply with. Scientific research makes it possible for the pulse fish technique to be further developed. In fact, the use of scientific research forms the basis of the derogations that have been granted to the Netherlands.
3.5 Interim conclusion Would the answers to subquestions 1 and 2 leave space for an allowance of pulse fishing?
Taking all the facts and circumstances into consideration, electric pulse fishing falls within the exclusive competence of the Union. The pulse fish debate aims for a more sustainable way of fishing, therefore the objective of the CFP that fisheries shall be “environmentally sustainable” is applicable to the pulse fish case. Pulse fishing is, considering the short-term effects, more environmentally sustainable than when the traditional beam trawls are being used, as is shown in the different scientific research that has been done. The pulse fish case is contributing to the ecosystem-based approach, which is regulated by the European Union. There are not enough scientific results about the long-term effects on pulse fishing to draw a final conclusion on this matter, however the prospects look promising when looking at the results on the short-term effects. The precautionary principle has not been used in this case. But it is applicable in this case. If the supporters of the pulse fish technique would have made use of this principle, they would have had a stronger case. The precautionary principle makes it possible to allow pulse fishing even though there is scientific
27 uncertainty. In the pulse fish debate there is no reference to international treaties. For example, principle 15 of the Rio Declaration, which includes the precautionary principle, could have been used.
Taken the above into consideration, the answers to subquestions 1 and 2 would leave space for an allowance of pulse fishing. It would be logical, looking at the legal framework, if the Union would have concluded in the pulse fish case that more research needs to be done and that the technique shows great potential. The conclusion should be that, because the prospect on this technique looks good, the derogations must remain intact and more scientific research must be conducted to further develop the technique. If the Union would only follow the rule of law, as set out by the Union herself, the pulse fish technique would not have been banned in its total form and there would have been more European support for the pulse fish technique.
But, this is not at all what has happened. Because the Union voted in favour of a total ban on pulse fishing, meaning that only 5% of the vessel may use this technique. Chapter 4 looks at the influence of politics and shows the disconnection between the theoretical framework and the what happened in practice, the executed policy.
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Chapter 4 – What has been the role of politics and lobby in the pulse fish case?
This chapter evaluates why the Union concluded different than what you would expect based on the conclusion of chapter 3 and why the Union voted for a total ban on electric pulse fishing. There is a disconnection between the rule of law and the practice. There are always multiple disciplines and stakeholders that have influence on procedures and policy-making. This makes the legal system not always effective.
4.1 why did the pulse fish case worked out different than planned for the Netherlands? Looking back at the previous three chapters, all results basically show that – as far as the results can show - pulse fishing is less harmful to the environment than when the traditional beam trawl is used. Chapter one connected to chapter 3.1 showed that the decision-making power on electric pulse fishing lies, in theory, completely with the Union, because it falls within the exclusive competence of the Union. This would mean, again in theory, that if the Union would follow the rule of law and apply their regulations to the pulse fish case, there would have been more support for electric pulse fishing. Chapter 2 connected to the pulse fish case showed that this technique aims for a more sustainable way of fishing. The MSY and scientific research are used to contribute to this aim and to contribute to the ecosystem-based approach. However, the precautionary principle is not mentioned anywhere in the pulse fish case, even though it is a good argument to use in the pulse fish case.
What happened in the pulse fish case is mostly politics.104 Mostly on the Dutch and French part. This resulted in a situation where politics and emotions took control and the facts were put on the background. Because politics took the lead, the legal aspects (and for example the precautionary principle) are not taken into consideration.
4.2 The influence of politics and lobby First, the derogations that were granted all had the aim to conduct some form of research. In first instances, the Dutch did not use all the derogations for their aim. They used most of the derogation in the first place for commercial purposes and put the scientific research on the back burner. However, once they got aware of the European criticism, they started conducting the research. The Commission agreed and provided the derogations and therefore knew the current state. They never recalled the Dutch government on their behaviour.
It started in 2010 when the Netherlands mobilized an active lobby with the sole purpose to find a way to use the pulse fish technique for their vessels. The Netherlands were focussed on themselves and did not realize that what they were doing would not be received well in Europe, especially in France and Great Britain, who use the traditional beam trawl gear and cannot compete with this new technique of the Netherlands. The Netherlands interpreted the law in a way that fits them well. It was not until 2017 that they realised that what they were doing was not landed well within Europe. The people in favour of the pulse fish technique believe it is the technique of the future, it can be compared to applying solar power systems.
In my opinion, one of the reasons for this can be that the Netherlands have a cultural of toleration and compromising. Therefore, it might be that the Netherlands did not think about the textual
104Thomas Spekschoor, ‘Nederland riep het verbod op pulsvissen over zichzelf af’ NOS (25 March 2018)
29 explanation and did not realise they angered the rest of Europe. They just figured they got the derogations and used that for their own good. Of course, this can be both considered a good and a bad thing. On the one hand, it is a smart move of the Netherlands and they truly believe that pulse fishing is a more environmentally friendly way of fishing. On the other hand, they were blind for the rest of Europe, and even though it seems like an environmentally friendly technique, the long-term results are not known yet. Besides, most of the derogations are mainly used for commercial purposes.
At first, the EP and council were curious about this pulse fishing and voted in November 2017105 that, because the technique is still in the research phase, no decision on any ban should be made yet. Then, the French non-profit organisation BLOOM started their counter-lobby, suddenly the mood within Europe has shifted. A mere two months later, the EP and Council were against pulse fishing. How did this happen? BLOOM focused in their lobby on emotions, they focused on the fact that for some round fish, like cod, pulse fishing might be harmful. They played, very smart, with the emotions of the EP and council. On January 20, 2018 there was another vote on pulse fishing at the EP. The Dutch went to this meeting with all relevant results on the research that has been done. BLOOM brought a modern dance group to this meeting who showed in a performance what a fish must feel when they got hit by a pulse.106 BLOOM believes pulse fishing (and traditional beam trawl fishing as well) should be banned in its entirely. They executed a perfect lobby, based on emotions.
Because pulse fishing is only relevant for countries who are situation next to the Southern part of the North Sea, most European countries have no interest in this topic and don’t know the facts. Hence, they are easily influenced by emotions.
The Netherlands have completely lost the pulse fish debate. On February 13, 2019 there has been another vote, after long negotiations between the commission, council and EP. There is no getting away from it, there will be a total ban on pulse fishing in Europe, only 5% of the vessels may be used purely to conduct scientific research, not for commercial purposes. It is not clear yet when the derogations will be ended and if there will be a transition period for the Dutch pulse fish vessels.
I would like to point out that at this moment, the official reports on the voting have not been made public, so I only know the information that is been made public by news channels.
The vote on a total ban on pulse fishing means that the scientific research cannot be continued as is now. In the new legislation on pulse fishing there will be a clause stating that when new scientific research shows that pulse fishing is not harmful for the environment, the pulse fish technique shall be reconsidered. But this is only a teeny tiny opening in the law in favour of the pulse fish technique.
4.3 What does this say about the legal system? This study shows a disconnection between the rule of law and practice. This raises the question if the current legal system is effective. In my opinion, the legal system is not completely effective and shown several weaknesses. In the pulse fish case, the legal system has not been able to really establish an ecosystem-based approach. The precautionary principle is not even mentioned in the pulse fish case while this is a great opportunity to use this principle. This disconnection between the rule of law and practice is due to the fact that the law never stands alone. When the law is applied,
105 Nederlandse Vissersbond, ‘Nederlandse Vissersbond gematigd positief over besluit pulsvisserij in Europese Visserijcommissie’ (Nederlandse Vissersbond, 21 November 2017)
30 there are always many stakeholders and disciplines involved, it is never just a theoretical question. This is what makes the law not always effective.
In the pulse fish case, politics played a big role, and in my opinion prevail over the rule of law. The derogations that have been granted are granted legally, but not solely used for the purpose as set out in the law, as is explained earlier. The rule of law provides a couple of ways to adopt measures when scientific research and the effects on a matter are lacking, as is explained with the ecosystem- based approach and the precautionary principle. When only looking at the role of law, these methods concluded that the pulse fish technique should not be banned, however the influence of politics has caused a different outcome. All parties agree that the technique is still in the research phase, they only disagree on whether the technique should be allowed or banned when the results are unknown. But based on the law, the lack of scientific research does not mean that measures cannot be adopted, and the precautionary principle should have been used. The role of politics must not be underestimated. Because the pulse fish case is a very uncertain situation, even when only looking at the law, many outcomes can be argued. I believe that this is one of the biggest reasons why there is so much room for politics in this case.
4.4 Lessons to be learned What we can learn from the pulse fish case is that the legal system never stands alone, other disciplines can overrule and not all problems are solved by solely looking at the law. This makes the law sometimes not effective. This means that you always must look at the bigger picture. It is not always enough to show facts and figures, as the Netherlands did in the pulse fish case. The pulse fish case is a good example of how politics and lobbying are used in the process-making. I believe that when the Netherlands would have conducted a successful lobby and used the precautionary principle, the Union would not have voted for a total ban on pulse fishing but would have allowed more scientific research on this matter. Another lesson that can be learnt from this is that even now, when there will be a total ban for pulse fishing within Europe, there is still an opening in the law in favour of the pulse fish technique, because the new legislation will leave space for derogations. Who knows, maybe in a couple of years when more results on the effects are known, there will be a new debate on this matter. One thing is sure, the Netherlands will take the pulse fish case as a lesson and adapt strategies if this occurs again in the future.
4.5 Conclusion What has been the role of politics and lobby in the pulse fish case?
Taken the above into consideration, it can be concluded that politics have a major influence on a decision-making process. The law does not stand on its own and this should not be forgotten. This makes the legal system inefficient in certain cases.
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Conclusion – answering main question
The research question is the following:
How should the recent decision in the EU regarding pulse fishing be assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”?
Answering the main question
The recent decision in the EU that there will be a total ban on pulse fishing in Europe is assessed from the perspective of the legislative competences within the EU and the EU’s Common Fisheries Policy objective: “to ensure that fishing is environmentally sustainable”. The results of this research show that Member States do not have competences within the aim of the CFP “to ensure that fishing is environmentally sustainable”, to develop their own regulations, as is shown in the pulse fish case. The pulse fish case falls within the exclusive competence of the Union. Even though the Netherlands believe this technique is contributing to a more sustainable way of fishing, they cannot have any say in executing the policy. There are three openings in this lack of competence in this case for member states to “get what they want”. First, in every legislation there are exceptions. In the pulse fish case these are the derogations that have been granted. However not successful for the Netherlands because they will be repealed, this is one way in which a member state might be able to “get what they want”. This is only on paper, because as said, in the pulse fish case the derogations will be repealed and strengthen the fact that member states have no competence. The second way is, that within the process-making the EP and Council is involved. In these institutions ministers and citizens from member states are involved and this way they have some indirect competence. The third way in which member state can “get what they want is through politics and lobbying. In the pulse fish case the Netherlands are on the losing end, but the French performed a great lobby and with that contributed to the decision-making. Pulse fishing is, according to the scientific results on the short-term effects, contributing to a more environmentally sustainable way of fishing. Scientists recognise the gabs in the research and therefore it is too early to draw a final conclusion whether pulse fishing is contributing to more environmentally sustainable fisheries. The lack of scientific research makes this case suitable for the use of the precautionary principle, however this is not used in the pulse fish case. Also, the ecosystem-based approach is not executed properly. The MSY and scientific research are the two main instruments that are used to aim for environmental sustainability in the pulse fish case. Politics and lobby played a major role in the pulse fish case, which resulted in a disconnection between the rule of law and practice.
Based on the perspective of the legislative competences within the EU and the objective “to ensure that fishing is environmentally sustainable”, the recent decision in the EU regarding pulse fishing shows a disconnection between the rule of law and the practice. This disconnection shows that the legal system can be ineffective in certain cases and was ineffective in the pulse fish case.
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