Master Thesis the Pulse Fish Case
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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. 1 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 2 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) 3 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 ..............................................................................................................................................