Enforcing the Common Fisheries Policy: The Implementation of …€¦ · Fisheries Policy: The Implementation of the EU Control Regulation in Spain”, Madrid: Instituto Internacional

Enforcing the Common Fisheries Policy:

The Implementation of the EU Control

Regulation in Spain

Enforcing the Common Fisheries Policy:

The Implementation of the EU Control Regulation

in Spain

The Instituto Internacional de Derecho y Medio Ambiente, IIDMA (International Institute for Law and the En-vironment) is a non-profit organization registered in Spain and founded in 1996 with the aim of contributing to environmental protection and to sustainable development through the study, development, implementation and enforcement of Law from an international and multidisciplinary approach. IIDMA was accredited as observer to the UNEP Governing Council in 1998, today the United Nations Environmental Assembly of UNEP. In 2001 it was declared of public interest by the Spanish Ministry of Home Affairs.

This document contains the summary of the document entitled Enforcing the Common Fisheries Policy: The Implementation of the EU Control Regulation in Spain which was the outcome of IIDMA’s project with the same titled executed during 2014-2015. The main objective of this project has been to contribute to the achievement of the objectives and principles of the Common Fisheries Policy embodied in its 2013 Regulation, and to foster the correct implementation and compliance of this policy in accordance with the provisions set out in the EU Fisheries Control Regulation. This project, carried out by IIDMA from October 2014 to September 2015, has counted with the support from Oak Foundation. The projects’ development consisted of analysing the imple-mentation of the Fisheries Control Regulation in Spain by carrying out a legal gap analysis, researching data, conducting interviews and surveys to professionals related to fisheries with the purpose of gathering information and confronting the preliminary results of the project and organizing a closed workshop on 29 June 2015, which was held at the Office of the European Commission’s Representation in Spain, with the participation of more than thirty professionals from various fields (public administration, professionals of fisheries, and NGOs). In this workshop, the preliminary document of the project was presented, with the purpose of collecting opinions, suggestions and comments.

With this document, IIDMA intends to offer an information and consultation tool which encloses the main legal mechanisms related to the implementation of the Fisheries Control Regulation in Spain, with the objective of facilitating the task of stakeholders in the field of fisheries.

Note on the authors:

Ana Barreira López, Director of IIDMA. She is a law graduate (U. Complutense) and holds a LL.M in Environ-mental Law (London University) and a LL.M on International Legal Studies (New York University)

Olaya Carlota Ruiz Bautista, Lawyer of IIDMA. She holds a degree in Law and Political Science (U. Autónoma of Madrid).

David Izquierdo Álvarez, Lawyer of IIDMA. He holds a degree in Law and Political Science (U. Autónoma of Madrid) and a LL.M on International Public Law and International Relations (U. Internacional Menéndez Pelayo).

Jakub Łukaczynski, Lawyer of IIDMA, holds a degree and LL.M in Law (U. of Gdansk).

Direction of the project: Ana Barreira

A WORD OF THANKS

IIDMA would like to thank Oak Foundation for its support to our Project whose main outcome is this document. In addition, we want to thank Gopal Shilpakar for his work on the management and logistics of this project. Equally we express our gratitude for her support on research tasks to this project to Lucía Gomez, graduated in Law and Journalism (U. Rey Juan Carlos). We also want to acknowledge Sarah Katherine Moore, intern stu-dent from Boston College and Ayla Virginia Peters intern student from University of California for their support in logistics and translation research. We also thank Oscar Montes Eriksen for his work to support this project. Finally, we would like to acknowledge Datum Electronics Ltd, Pladesemapesga, Guardia Civil and Cofradía de Pescadores de Sanlúcar de Barrameda for the cession of their reproduction rights on the images illustrating this document.

This report can be reproduced always citing its source: Barreira. A., Ruiz. C., et alter, “Enforcing the Common Fisheries Policy: The Implementation of the EU Control Regulation in Spain”, Madrid: Instituto Internacional de Derecho y Medio Ambiente (IIDMA), 2015.

Cover photograph: Cartagena Actualidad

IIDMA, C/ Campoamor 13 1º Izda, 28004 Madrid, tel: +34 91 308 68 46; e-mail: [email protected]; web: www.iidma.org

mailto:[email protected]

http://www.iidma.org

Table of Contents

Presentation ........................................................................................................................................................ 8

Acronyms ........................................................................................................................................................... 10

Summary ............................................................................................................................................................. 12

A. INTRODUCTION ............................................................................................................................................ 26

1. Context ................................................................................................................................................... 26

1.1. Why is a fisheries policy necessary? ........................................................................................ 26

1.2. History of the fisheries policy in the European Union ................................................ 27

1.3. The Fisheries Sector in Spain ........................................................................................................ 30

1.4. The importance of Control Regulations ................................................................................ 31

1.5. The Evolution of the Common Fisheries Policy Control Regulations ............. 32

B. FISHERIES CONTROL IN THE EUROPEAN UNION ........................................................................ 35

1. The Control and Enforcement of the CFP .......................................................................... 35

1.1. The Enforcement and Control in the CFP Regulation ................................................ 35

1.2. The Enforcement and Control in the European Maritime and Fisheries Fund Regulation ................................................................................................................................... 37

1.3. European Union Fisheries Control Regulation ................................................................ 39

2. Institutional Framework for Enforcement and Control of the Common Fish-eries Policy ............................................................................................................................................ 43

2.1. The competences of the European Union and Member States .............................. 43

2.2. The Distribution of Fishing Competences in Spain ....................................................... 44

2.3. Main institutions responsible for fisheries control ...................................................... 46

2.3.1. The european commission ................................................................................................... 46

2.3.2. european fisheries conTrol agency ................................................................................ 48

2.3.3. The general secreTariaT of fisheries ............................................................................ 50

2.3.4. auTonomous communiTies ................................................................................................... 52

C. THE IMPLEMENTATION OF THE FISHERIES CONTROL REGULATION IN SPAIN ............. 55

1. General conditions on Access to Waters and Resources .......................................... 55

1.1. The fishing license ................................................................................................................................. 56

1.2. The fishing authorization ................................................................................................................ 57

1.3. Marking and identification of fishing vessels and fishing gear ............................ 59

1.3.1. The marking and idenTificaTion of fishing vessels ..................................................... 59

1.3.2. marking and idenTificaTion of fishing gear and crafTs ........................................... 60

1.4. The vessel monitoring system ........................................................................................................ 62

1.5. The automatic identification system ........................................................................................ 71

1.6. The vessel detection system ............................................................................................................. 72

2. Fisheries Control ............................................................................................................................... 73

2.1. Control of the use of fishing opportunities .......................................................................... 73

2.1.1. compleTion and submission of documenTs To ensure conTrol of The use of fishing opporTuniTies ........................................................................................................................ 74

2.1.1.1. Fishing logbook, transshipment declaration, and landing declaration in printed format ... 74

2.1.1.2. Fishing logbook, transshipment declaration and landing declaration in electronic format. 88

2.1.2. conTrol of The fishing efforT .......................................................................................... 96

2.1.2.1. Notification of fishing gears .............................................................................................. 100

2.1.3. recording of caTches and The fishing efforT ............................................................ 104

2.1.4. closure of fisheries ......................................................................................................... 105

2.2. Control of the fleet management .............................................................................................. 107

2.2.1. fishing capaciTy .................................................................................................................. 107

2.2.2. engine power ...................................................................................................................... 112

2.2.2.1. Certification of engine power ............................................................................................. 113

2.2.2.2. Verification of engine power ............................................................................................... 116

2.3. Multiannual Plans .............................................................................................................................. 120

2.3.1. conTrol of mulTiannual plans ....................................................................................... 122

2.3.1.1. Transshipment in port ....................................................................................................... 122

2.3.1.2. Designated ports ................................................................................................................ 123

2.3.1.3. Separate stowage of demersal catches ............................................................................... 124

2.3.1.4. Utilization of quotas in real time ...................................................................................... 125

2.3.1.5. National Control Programs ............................................................................................... 125

2.3.2. failure To comply wiTh obligaTions concerning mulTiannual plans ................... 126

2.4. Management of Technical Measures ...................................................................................... 127

2.4.1. uTilizaTion of fishing gears .......................................................................................... 128

2.4.1.1. Fisheries where fishing is only allowed with one type of fishing gear ................................ 128

2.4.1.2. Retrieval of lost gear .......................................................................................................... 130

2.4.1.3. Catch composition .............................................................................................................. 134

2.4.2. conTrol of resTricTed fishing areas ........................................................................... 135

2.4.3. real-Time closure of fisheries ..................................................................................... 136

2.5. Control of Recreational Fisheries ............................................................................................ 139

2.5.1. markeTing of caTches from recreaTional fisheries ................................................ 144

2.5.2. specific conTrol acTions regarding recreaTional fisheries .................................. 145

2.5.3. fisheries of blue-fin Tuna and swordfish .................................................................. 146

2.6. Control of marketing ......................................................................................................................... 148

2.6.1. common principles and sTandards ................................................................................. 150

2.6.2. TraceabiliTy ....................................................................................................................... 154

2.6.2.1. General principles .............................................................................................................. 154

2.6.2.2. Labeling requirements and information ............................................................................ 155

2.6.2.3. Information available to consumers .................................................................................. 158

2.6.3. posT-landing acTiviTies ................................................................................................... 159

2.6.3.1. Weighing of fishery products ............................................................................................. 159

2.6.3.2. First sale ............................................................................................................................ 162

2.6.3.3. Sales notes .......................................................................................................................... 163

2.6.3.4. Take-over declaration ........................................................................................................ 165

2.6.3.5. Transport document ........................................................................................................... 166

2.6.3.6. Contents of the sales notes, take-over declaration and transport document ...................... 167

2.6.4. producer organizaTions and price and inTervenTion arrangemenTs ................. 172

2.7. Surveillance .............................................................................................................................................. 174

2.8. Inspection and Proceedings .......................................................................................................... 178

2.8.1. conducT of inspecTions .................................................................................................... 180

2.8.2. duTies of The operaTor ................................................................................................... 188

2.8.3. The inspecTion reporT ..................................................................................................... 190

2.8.3.1. Electronic database ............................................................................................................ 191

2.8.4. communiTy inspecTors ...................................................................................................... 192

2.9. Inspections outside the waters of the inspecting Member State ........................ 194

2.10. Infringements detected during the conduction of inspections .......................... 195

2.10.1. enhanced follow-up wiTh regard To cerTain serious infringemenTs ............... 196

2.11. Proceedings resulting from infringements detected during the conduction of inspections ......................................................................................................................................... 196

2.12. Observance ............................................................................................................................................. 197

2.12.1. sancTioning procedure ................................................................................................. 198

2.12.2. enforcemenT measures .................................................................................................. 204

2.12.3. imposiTion of sancTions .................................................................................................. 205

2.12.4. financial sancTions and fines ...................................................................................... 208

2.12.5. assignaTion of poinTs ...................................................................................................... 210

2.12.6. naTional regisTer of infringemenTs .......................................................................... 213

2.13. Data and Information ................................................................................................................... 214

2.13.1. daTabases and The compuTerised validaTion sysTem .............................................. 214

2.13.2. exchange of and access To daTa .................................................................................. 218

2.13.3. access To daTa and iTs limiTaTions ............................................................................... 220

2.13.4. access To informaTion .................................................................................................... 221

2.13.4.1. Protection of personal data .............................................................................................. 222

2.13.4.2. Confidentiality and commercial secrecy ........................................................................... 224

D. CONCLUSION ............................................................................................................................................. 226

Bibliography ...................................................................................................................................................... 229

Annex I. List of illustrations and tables ............................................................................................ 231

Presentation

Our vision at the International Institute of Law and the Environment (IIDMA) consists of protecting and restoring the environment as well as natural resources. This implies many challenges. To achieve our vision, the main challenge lies in making international and

national institutions as well as the public aware that law and other regulatory instruments are one of the most important instruments to transform environmental and development policies into action or practice. However, this transformation only occurs when those laws and regulatory instruments are properly implemented.

Our mission, therefore, is to contribute to environmental protection and promoting sustainable development through the study, development, and effective implementation of law, with special emphasis on its Implementation, Compliance and Enforcement.

At the beginning, our work focused on the development of new legal instruments. Nevertheless, in our eighteen years of existence we have realized that the correct implementation of law is scarce at all levels: international, regional and national. There are great efforts and resources dedicated to elaborating and adopting new international conventions, European Union legislative acts, laws and other regulations. However, there are insufficient resources and efforts dedicated to ensure their effective and valid implementation, including resources to the training and education of members of the judiciary. Therefore, our work has increasingly concentrated on improving the situation of implementation deficit.

In this context is where this project is framed. Enforcing the Common Fisheries Policy: The Imple-mentation of the EU Control Regulation in Spain was developed by IIDMA between October 2014 and September 2015 with the aim of contributing to the achievement of the objectives and prin-ciples of the Common Fisheries Policy set out in the Regulation of 2013 by promoting the correct implementation and compliance of this policy in accordance with the provisions of the Fisheries Control Regulation of the European Union.

From 2008-2009, IIDMA carried out the project “Legal Mechanisms for the Protection of the Marine Environment in Spain: State of the Art”. This project analyzed both the institutional and legal frame-work (at the international, European, and Spanish levels) for the protection of the marine environment including fishing, marine protected areas, the introduction of invasive species, pollution from ships and land-based sources of pollution, offshore wind energy production, and the exploration and exploitation of oil. One of the issues which was pointed out by the stakeholders of the project was that we have a highly developed and detailed legal framework but its implementation, as well as the monitoring of its effectiveness is very weak. From that project arose the idea for developing this new project focused on fishing.

Now, our aim is to raise awareness among all the stakeholders involved in the fishing sector — such as administrations, operators, and NGOs, among others — about the importance of the implemen-tation of the Common Fisheries Policy and to create a culture of respect and compliance with the same. If we achieve our purpose, at the same time we will be contributing to the achievement of the objectives of the new Common Fisheries Policy, which was negotiated for over four years, impact-ing positively on the state of our oceans, including the state of fish stocks in addition to contributing to the credibility of our institutions and the rule of law, that eventually impacts our democracy.

You now have in your hands the result of a work of research and analysis which also reflects the point of view of different stakeholders which participated in a workshop we organized in June 2015 to present the preliminary results of our work and to collect their views.

This document is divided into four parts. The first one introduces the context in which the control instruments of the Common Fisheries Policy are applicable, emphasizing the importance of achiev-ing the efficiency and effectiveness of said policy. The second part examines the regulatory and institutional framework of the control of the Common Fisheries Policy throughout the years. The third part shows an in-depth analysis of how the Control Regulation of the Common Fisheries Policy is being implemented in Spain, examining each one of its instruments and mechanisms. Finally, a series of conclusions are presented.

Ana Barreira Director of IIDMA

AcronymsAA.CC Autonomous CommunitiesAEPD Spanish Data Protection AgencyAGE General State AdministrationAIS Automatic Identification SystemALDFG Abandoned, lost or otherwise discarded fishing gearBOE Spanish Official JournalCAP Common Agricultural PolicyCBPM Census of Marine Fishing VesselsCFP Common Fisheries PolicyCJUE Court of Justice of the European UnionCOM Regulation Common organization of the markets in fishery and aquaculture products

RegulationCVS Computerized Validation SystemDEA On-Board Electronic LogbookDG Directorate GeneralDG MARE Directorate-General for Maritime Affairs and FisheriesDGRPA DG for Fisheries and Aquaculture ResourcesEC European CommissionECA European Court of AuditorsEEC European Economic CommunityEEZ Exclusive Economic ZoneECHR European Convention of Human RightsEFCA European Fisheries Control AgencyEMFF European Maritime and Fisheries FundEP European ParliamentERS Electronic Recording and Reporting SystemEU European UnionFAO Food and Agriculture Organization of the United NationsFMC Fisheries Monitoring CenterFIP Fisheries Inspection PlanGFCM General Fisheries Commission for the MediterraneanGRT Gross RegisterTonnageGSF General Secretariat of FisheriesICES International Council for the Exploration of the SeaIRCS International Radio Call SignIUU Illegal, Unreported and Unregulated FishingLRJPAC Law 30/1992 of 26 November on the Spanish Administrative ProcedureMAGRAMA Ministry of Agriculture, Food and EnvironmentMS Member StatesNAFO North Atlantic Fisheries OrganizationNEAFC North East Atlantic Fisheries Commission

OJEU Official Journal of the European UnionRD Royal DecreeREVIPES Fishing Surveillance NetworkRFMO Regional Fisheries Management OrganizationRTC Real Time ClosureSGCI Sub-directorate General for Control and InspectionSTC Constitutional Court JudgmentsSTECF Scientific, Technical and Economic Committee for FisheriesTAC Total Allowable CatchesTFEU Treaty on the Functioning of the European UnionTEU Treaty of the European UnionUNCLOS United Nations Convention on the Law of the SeaUNEP United Nations Environment ProgramVDS Vessel Detection SystemVMS Vessel Monitoring SystemWTO World Trade Organization

Summary

We live on Planet Earth but it is, in fact, the “Blue” Planet. The oceans and seas cover most its surface, and much of our population is settled around these waters. In the European Union (EU), 200 million Europeans live in coastal areas. We can say, both metaphorically

and literally, that there is a network of connections between humans and the sea.

The technological level of vessels and fishing gear — like many other areas of interaction between man and Earth — improved significantly during the twentieth century. This has allowed an increase in the extraction of living aquatic resources, which, undoubtedly, has affected their availability and the environment where they develop. No one questions that measures must be taken to prevent their depletion; hence the need to develop a reasonable, coherent and sustainable fisheries policy to organize such measures.

In 1958, the United Nations convened the first Conference on the Law of the Sea in Geneva that developed, among other treaties, the Convention on Fishing and Conservation of Living Resources of the High Seas. The Convention’s text acknowledges in its Preamble that:

“… the development of modern techniques for the exploitation of the living resources of the sea, increasing man’s ability to meet the need of the world’s expanding population for food, has ex-posed some of these resources to the danger of being over-exploited.

Considering also that the nature of the problems involved in the conservation of the living re-sources of the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international cooperation through the concerted action of all the States concerned.”

The Treaty of Rome, which created the European Economic Community (EEC), was signed one year before the 1958 Geneva Convention. The text of the Treaty did not cover fisheries. Thus, its Article 38, described fisheries products as agricultural products. This led to similar perceptions of agricul-ture and fisheries. The Common Agricultural Policy (CAP) is characterized by subsidy payments for crops and farmland. Fisheries operate differently. Fisheries are shared amongst many fishermen and this lack of control can lead to the depletion of resources.

The impel to establish the fisheries policy itself were the EEC enlargement negotiations. The coun-tries that acceded the EEC had significant fishing fleets. The adoption of the first relevant regulations for the Common Fisheries Policy (CFP) took place in 1970.

Upon approval of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) called “A Constitution for the Oceans,” the way of thinking about marine regions changed significantly. The Convention establishes an exclusive economic zone (EEZ) of 200 nautical miles and grants coastal States sovereign rights to exploit and manage natural resources (both living and nonliving).

In 1983, the pressure of a new enlargement required Member States (MS) to agree on fisheries management, as the two Iberian fishing states, Portugal and Spain, were about to join the Com-munity. Council Regulation 170/83 was then adopted, establishing a Community regime for the conservation and management of fisheries resources that formally established the CFP.

The CFP was reformed in 2002 to address the environmental, economic, and social aspects of fish-

eries through Council Regulation (EC) No 2371/2002, of 20 December 2002, on the conservation and sustainable exploitation of fisheries resources under the CFP. However, after this reform, the need for further reforms was identified, due essentially to the depletion of fish stocks, the alarm-ing deterioration of marine ecosystems, and the consequent impact on the fishing industry and communities dependent on fishing. The latest reforms were adopted in December 2013 and are currently in force. These legislative measures include the following three regulations:

a) The Common Fisheries Policy: Regulation (EU) No 1380/2013 of the European Parlia-ment and of the Council of 11 December 2013 on the Common Fisheries Policy.

b) The Common Organization of the Markets in fisheries and aquaculture products: Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organization of the markets in the fishery and aquacul-ture products sector.

c) European Maritime and Fisheries Fund (EMFF): Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund.

The Fisheries Sector in SpainFisheries activities have a great historical tradition in Spain and the national fisheries sector is one of the most important in all Europe. In February 2014, the Spanish fleet had 9,895 vessels, which rep-resented 11.3% of the total EU-28 considering the number of vessels, and 22.0% considering the tonnage (Gross Register Tonnage-GRT). Spain is also among the countries with the highest volume of catches (17.59% of the entire EU in 2011) and it holds the highest number of jobs in the sector. It is also the country with the highest level of imported fish tons and the main exporter of the EU.

The Importance of Control RegulationsPolicies, once passed, have to be implemented and consequently obeyed to yield the expected results. This is fundamental for the rule of law which is one of the values of the EU. Directives, regu-lations and other kind of rules are the most important tools to transform policy into action. However, this transformation only occurs when they are effective and valid. Their effectiveness (achieving the purpose of the rule, e.g. reducing discards) and validity (a rule is obeyed but its objective is not achieved) depend on the degree of implementation and compliance.

Ensuring compliance with the obligations by all those to whom they are addressed is vital to achiev-ing their objectives. The EMFF Council Regulation recognizes that “the success of the CFP depends on an effective system of control, inspection and enforcement, as well as on the availability of reli-able and complete data, both for scientific advice purposes and for implementation and control purposes”.

The Evolution of the Common Fisheries Policy Control RegulationsThe introduction of the system of total allowable catches required the EEC to create control meas-ures. In 1982, Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the Member States was passed. Subsequently, two other control regulations were developed in 1987 and 1993. The latter was the object of an assess-ment by the European Court of Auditors (ECA) in 2007 whose balance was negative, resulting in the adoption of the regulation currently in force: Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the com-mon fisheries policy (Fisheries Control Regulation).

The Fisheries Control Regulation establishes the so-called “European control system”. The scope of this Council Regulation covers all activities regulated by the CFP that:

a) are carried out in EU MS territory or in Union waters, or

b) are carried out by EU fishing vessels, or

c) without prejudice to the primary responsibility of the flag MS, by nationals of MS.

A variety of actors are involved in this system: the MS, the European Commission (EC), and the European Fisheries Control Agency (EFCA), thus the Fisheries Control Regulation has improved cooperation and coordination between them to promote compliance with the CFP regulations. Addi-tionally, operators and other officers, such as captains of fishing vessels, are equally involved.

After an extensive preamble, general principles and provisions, there are sections devoted specif-ically to particular matters of fisheries control:

� Title III provides the general conditions for access to waters and resources. The rules relevant to fishing licenses and authorizations are found here. Additionally, this title reg-ulates other control instruments: the marking of fishing gear, vessel monitoring systems, vessel detection systems (VDS), and automatic identification systems (AIS).

� Title IV specifically provides for the control of fisheries. Chapter I focuses on the use of fishing opportunities. It prohibits transhipment operations at sea and provides rules for the development and completion of relevant documents such as fishing logbooks and transhipment and landing declarations. The Regulation requires MS to ensure the control of fishing effort and a mechanism for this is the recording of catches and fishing effort. In the event that quotas or fishing effort are exhausted, the closure of fisheries is required. Chapter II regulates the control of fleet management. It requires MS to control their fish-ing capacity and to verify and control the engine power by means of certifications and verifications, both through data checks and physical inspections. Chapter III regulates the control of multiannual plans, for example it requires the separate stowage of different fish populations and regulates national control action programs. Chapter IV regulates the control of technical measures as well as the control of fishing restricted areas and Chapter V, the control of recreational fishing, prohibiting the marketing of those catches.

� Title V provides for the control of marketing, including the rules on traceability, weighing,

sales notes, take-over declarations and transport documents. The control of producer organizations and price and intervention arrangements are also regulated in this title.

� Title VI regulates surveillance and sets out the rules for control observers.

� Title VII regulates inspection and proceedings, establishing rules on inspections conduc-tion, inspection reports and procedures in the event of infringement.

� Title VIII regulates enforcement, establishing the rules for the imposition of sanctions and penalty points, in addition to regulating the national register on infringements.

� Title IX regulates control programmes.

� Title X regulates evaluation and control by the EC.

� Title XI provides the measures to ensure compliance by MS with the CFP objectives (financial measures, closure of fisheries, deduction of quotas and fishing effort, and emergency measures).

� Title XII regulates data and information. Access to data is an important issue for effective control.

� Title XIII regulates implementation.

In the end, as usual, rules relating to amendments and repeals (which make up Title XIV), final pro-visions (Title XV), and annexes (Annex I - Specific inspection benchmarks for multiannual plans, Annex II - Correlation table) are provided.

It is important to highlight that the Fisheries Control Regulation provides for the adoption of detailed rules and measures to implement certain provisions. In accordance with the Treaty on the Func-tioning of the European Union (TFEU), where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the EC. To this end, Com-mission Implementing Regulation (EU) No 404/2011 of 8 April 2011, laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009, was adopted.

Fisheries

Competences provided by the TFEU and Article 149.1.19 of the Spanish Constitution developed by the State Maritime Fisheries Law and regional fisheries laws

EU

The CFP regulates the conservation of marine biological resources, the man-agement of fisheries and the fleets that exploit these resources, fresh water and aquaculture biological resources and the processing and marketing of fisheries and aquaculture products, where such activities take place in the territory of MS or EU waters, or by nationals of MS, without prejudice to the primary responsibility of the flag MS.

All EU regulations in this matter are directly applicable in Spain.

Continuation

State (Spanish Ministry of Agriculture, Food and

Environment-MAGRAMA)

Exclusive jurisdiction over the matters of maritime fisheries in external waters and over the development of basic rules on the management of the fishing sector.

Autonomous Communities (Competent authorities in

fisheries matters)

Exclusive jurisdiction over fishing in internal waters, shellfish and aquacul-ture and the development and implementation of basic national rules on the management of the fishing sector.

Source: Own elaboration

The purpose of this document is to analyze the implementation of the Fisheries Control Regulation in Spain, examining the measures that have been adopted to ensure the effectiveness and efficien-cy of the CFP.

We must recall that EU regulations have general application, binding in their entirety and directly applicable in all MS. However, many of the regulations that are adopted require the adoption of specific measures by MS, which can be adopted either through the development of rules or by implementing actions. In fact, the TFEU requires MS to adopt all national legal measures necessary to implement legally binding EU acts.

The analysis on the implementation of the Fisheries Control Regulation by Spain was based on a legal gap analysis, examining the rules adopted by Spain as well as through data search and the conducting of interviews and surveys. It must also be noted in this context that some obligations are complied with through the implementation of acts such as reaching specific agreements with other MS or the adoption of sampling plans.

General Conditions on Access to Waters and ResourcesThe Fisheries Control Regulation establishes, as general conditions on access to waters and resources, to hold a fishing license and in certain cases a fishing authorization; it requires the marking of fishing gear, as well as having a VMS and an AIS, depending on vessel length. It also recommends MS to use a VDS and that they are capable of transmitting the data collected by the VMS the AIS and the VDS to ensure compliance with the law.

In this regard, Spanish legislation is in line with the requirements of the Fisheries Control Regulation, with one exception, and in some cases is stricter.

� Regarding fishing authorizations, Article 25.2 of the States Maritime Fisheries Law allows the issuing of a collective special fishing permit in the case of a group of vessels, while the Implementing Regulation requires that an authorization is only valid for one fishing vessel from the EU. Therefore, Spanish legislation does not comply with the Fisheries Control Regulation on this point.

� The authorization is always required when fishing in waters which are not under Spanish sovereignty or jurisdiction. This requirement under Spanish Law is not provided by the Fisheries Control Regulation.

� Although Spanish legislation includes some inconsistencies regarding buoy signaling, it must also be noted in this context that Spanish provisions in this area are prior to the approval of the Implementing Regulation. Thus, it should be understood that these incon-sistencies should not be required nor implemented.

� While the Implementing Regulation allows the margin of error regarding the latest posi-tion of the fishing vessel issued by the VMS to be less than 500 meters, Spanish law requires that this margin of error does not exceed 100 meters.

Fisheries ControlFisheries control is carried out through Member State supervision of the activities of their fishing vessels in and outside EU waters. This control is carried out through the control of:

� The use of fishing opportunities,

� Fleet management,

� Multiannual plans,

� Technical measures, and

� Recreational fishing.

Control of the use of fishing opportunities

In the first chapter of Title IV, the Fisheries Control Regulation includes the following measures to ensure control of the use of fishing opportunities:

a) The requirement to complete and submit a fishing logbook, transhipment declaration and landing declaration, in paper or electronic formats;

b) The requirement to control and manage fishing effort in those areas where there is a maximum allowable fishing effort;

c) The requirement to register the data related to catches as well as to fishing effort and exchange it with the EC, and

d) The requirement for MS or the EC to close fisheries, when necessary, according to the circumstances provided in the Fisheries Control Regulation.

In the Spanish legislation, the obligation to complete and submit the fishing logbook, transhipment declaration and landing declaration in paper format is not well developed, since, according to the State Maritime Fisheries Law it must be developed through a regulation. However, although we were unable to identify the existence of a national regulation developing this rule, the requirements for the completion and transmission of these documents have been developed in detail by the Euro-pean regulations and are directly applicable in Spain; thus, the captains of fishing vessels flying the Spanish flag should respect them.

As for the requirement to have an authorization before completing any transhipment operation, the State Maritime Fisheries Law only provides it for third country vessels. EU vessels only need to sub-

mit a prior communication to the Subdirectorate General for Control and Inspection. The prohibition of transhipments at sea is correctly reflected in the Spanish legislation and, in some cases, is more restrictive; for example, the Spanish system expressly prohibits transhipments between vessels in certain fishing plans.

The requirements relating to the electronic completion and transmission of fishing logbook data, transhipment declaration or landing declaration are correctly reflected in the Spanish legislation, mainly through Order ARM/3145/2009, from November 19th, regulating the establishment of the electronic recording and transmission of data on the activity of Spanish fishing vessels. However, we have identified certain requirements that are regulated differently compared to what is required by EU rules:

� If landing in a country other than Spain, the requirement to give prior notice of arrival is upon the master of the fishing vessel instead of the Spanish authorities.

� The deadlines for submission of transhipment and landing declarations in electronic for-mat are established within 48 hours after the completion of transhipment or landing, whereas the EU rules are within 24 hours.

� In case of failure or non-functioning of an electronic recording and reporting system (ERS), Spanish law requires transhipment and landing declaration data to be transmitted within 48 hours after the completion of the transhipment or landing operation, while EU legislation requires, among other cases, transmissions to be performed once a day.

Spanish law does not highly regulate requirements on the control of fishing effort. However, given the direct applicability of EU regulations, we have found that, in practice, the measures to comply with EU requirements are being implemented; for example, the closure of fisheries, the existence of a catch record or the regulation of measures concerning the management of fishing effort.

As for the notification of fishing gear, there are differences between EU and Spanish regulation. The first one requires the master of the fishing vessel or his representative to notify the gear that will be used before starting their fishing activities in an area under fishing effort management. Spanish legislation, although in some cases specifies this notification requirement, in general has opted to authorize vessels to carry out fishing activities according to their fishing mode and fishing ground, and can only operate in a single census according to those terms.

Regarding the catch record, the existence of some shortcomings in the past led to the overfish-ing of certain stocks, but the ruling of the Court of Justice of the European Union (CJEU) in Case T-260/11 and the adoption of the Action Plan by the EC to address the shortcomings in the Spanish Fisheries Control System in 2012 have been fundamental to improving the computer system for data collection.

The Directorate General (DG) of Fishery Management is ordering the closure of fisheries and adopting the necessary measures according to the Fisheries Control Regulation.

Control of fleet management

The CFP has among its objectives the promotion of sustainable fishing, which requires, among other factors, a balance between fisheries resources and the fleet in order to avoid overexploitation of fish stocks.

To ensure compliance with the measures taken to manage the fleet, fleet capacity control mech-anisms have been established such as monitoring the power of the engine of fishing vessels. To this end, MS are required to take steps to ensure that the total capacity of granted fishing permits does not exceed the maximum capacity levels set for that Member State and that the power of the engine of a vessel does not exceed its certified engine power. This is done through certification and verification of the engine power.

To control fisheries capacity, the Fisheries Control Regulation requires MS to carry out the neces-sary checks to ensure that the total capacity corresponding to the fishing licenses issued by a MS, in gross tonnes (GT) and kilowatts (kw), does not at any time exceed the maximum capacity levels for that MS. However, the annual activity report of the fishing fleet for 2014 submitted to the EC by Spain does not refer to the control mechanisms required in this sense by that Regulation, in particu-lar the applied checking methods.

Although the Fisheries Control Regulation prohibits fishing with a vessel equipped with an engine whose power exceeds the one provided in the fishing license, the previous wording of Article 117 of the State Maritime Fisheries Law allowed the legalization of their registration to fishing vessels whose hull material, engine power or values of length, width, strut or tonnage did not coincide with their registry information in the Register of Ships and Shipping Companies, under the Ministry of Public Works as well as in the Census of Operational Fishing Fleets, until July 31, 2015. In this way, it has been implicitly acknowledged that, prior to this date, vessels that did not comply with the provided prohibition were allowed, even though the Fisheries Control Regulation forbids them from January 1, 2010.

In Spain the certification of engine power corresponds to the DG of Merchant Marine, which can authorize collaborating organizations to undertake the certification. It should be noted that, although the Regulation does not allow certification if the engine is capable of developing more than the maximum continuous engine power indicated on the engine certificate, Royal Decree (RD) No. 1549/2009 allows the admission of a weighed limit of 20 percent of the maximum power recog-nized for the corresponding model and type of engine that will be installed on the new unit, which is contrary to EU legislation.

The verification of engine power, which includes data verification and physical inspection if incon-sistencies in data verification are found, is in principle the responsibility of the fishing authorities of the Autonomous Communities (AA.CC).

Control of multiannual plans

One of the measures that the CFP provides for the sustainable exploitation of fishing resources is the management of specific fish stocks through multiannual plans.

Multiannual plans are adopted on the basis of scientific, technical and economic advice, in con-sultation with advisory councils, fisheries operators, scientists and other stakeholders in fisheries management. The plans may target a single species, or multiple stocks in cases where they are jointly exploited in a particular geographical area, and they are intended to maintain or reestablish, where appropriate, the volume of these stocks above levels capable of producing the maximum sustainable yield.

The Fisheries Control Regulation establishes various control measures for multiannual plans relat-ing to:

� The weight requirements of catches of stocks subject to multiannual plans, when tran-shipments occur.

� The designation of ports for landing catches subject to multiannual plans, above a cer-tain quantity.

� Separate stowage of demersal catches subject to multiannual plans.

� The use of quotas in real time, for the purposes of regular communication of catches data with the EC.

� The adoption of national control programs applicable to each multiannual plan.

� Prior notification, before arriving to port.

Spain has adopted detailed regulations regarding the control of Atlantic Bluefin tuna populations. However, for other species, the adoption of legislation is more limited or, in some cases, non-ex-istent. Nevertheless, as European legislation is directly applicable, the requirements concerning fisheries affecting Spain should be applied correctly.

The Fisheries Control Regulation regulates the direct obligation for all MS to designate a number of authorized landing ports for certain stocks. Therefore, Spain has designated ports for every spe-cies under this obligation, although we were unable to identify the instrument by which ports for landing catches of black halibut are designated.

The requirement on the separate stowage of demersal catches subject to multiannual plans for certain vessels is not covered under Spanish legislation. However, we could identify the existence of an infringement proceeding decision and a court ruling, considering the failure to file a stowage plan as an infringement. This ruling shows that the requirement is being implemented correctly.

The Spanish authorities have notified the EC the national control programs for those species for which there is an obligation to do so, in accordance to the Fisheries Control Regulation.

Control of technical measures

Technical measures are one of the pillars on which the EU bases the management of fisheries resources, in order to ensure their conservation and sustainable exploitation. These measures, although they are applicable in all European sea basins, will differ depending on the characteristics of the basin.

In order to ensure that MS effectively implement these technical measures, the Fisheries Control Regulation adopted control measures relating to:

� The use of fishing gear.

� Restricted fishing zones.

� The real-time closure of fisheries (RTC).

The Spanish legal system, in general, does not include specific regulations on the control of tech-nical measures, with some exceptions. However, as these measures are directly applicable, the Spanish legal system must ensure that adequate mechanisms to fulfill them are employed.

The obligation for the stowage and lashing of fishing gear that will not be used in the fisheries where fishing is permitted with only one type of gear, in general, is not reflected in the Spanish legislation. However, for some fisheries, there is a stricter regulation:

� Preventing the carrying on board of any other type of gear, or

� Making it impossible to carry out any other fishing activity with another fishing gear dur-ing the same fishing day.

As for the requirement to recover lost fishing gear, it is only reflected in the Order AAA/2794/2012, of December 21st, regulating the fishing with passive gear and smaller gear in the external waters of the Mediterranean. It is unclear whether Spain has taken appropriate measures to retrieve lost gear and whether there are procedures for effective communication in case of not being able to recover such gear. In addition, the existence of declarations of RTC of fisheries by the State of Spain has not been identified.

Control of recreational fishing

Recreational fishing comprises any non-commercial fishing activities exploiting marine biological resources for recreation, tourism or sporting purposes. Over time, the practice of these activities has been increasing in coastal areas. An increasing number of vessels are engaged in non-commercial fishing, in organizing tours to facilitate recreational fishing for others, and in sports competitions organized with the purpose of encouraging such practices. The proliferation of recreational fishing activities has led to a growing impact on fisheries resources. Therefore, a specific control system to ensure that all these activities are conducted in a manner consistent with the CFP is required.

In terms of the control of recreational fishing, the Spanish legislation complies with the requirements set out in the Fisheries Control Regulation, and in some cases is stricter:

� For the fishing of all species with differentiated protection, Spanish legislation requires an authorization and the declaration of catches. However, the Fisheries Control Regulation provides the adoption of such specific measures as a discretionary power of the Europe-an Council and only in the case that the Scientific, Technical and Economic Committee for Fisheries (STECF) proves that the recreational fishing of species subject to recovery plans has a significant biological impact.

Along these lines, although Spain has not adopted the sampling plan referred to Article 55.3 of the Fisheries Control Regulation, the control of catches of species of differentiated protection within the framework of recreational fishing is carried out through specific measures such as fishing authoriza-tions and catch declarations. Therefore, we believe the control measures adopted by Spain ensure more reliable data on catches of these species than could be obtained from a sampling plan.

Control of MarketingTitle V of the Fisheries Control Regulation has a number of procedures that MS and other partic-ipating actors must comply with at different stages of the marketing of fisheries and aquaculture products. The EC Implementing Regulation more rigorously specifies the rules concerning this pro-cess such as traceability, weighing, sales notes, take-over declarations and transport documents.

Marketing is one of the aspects that form part of fisheries management. In accordance with the Spanish Constitution, the development and execution of basic State legislation on the management of the fishing sector is responsibility of the AA.CC. Thus, AA.CC are responsible for marketing con-trol from the first sale of fishery products.

Overall, Spain satisfactorily complies with European regulations concerning common principles and regulations of marketing control.

The approval of RD No. 418/2015, of May 29th, which regulates the first sale of fisheries products (RD 418/2015 on first sale), improved the rules regarding the traceability system, providing the consumer more complete information on fisheries products. At the regional level, it should be noted that some competent bodies of the AA.CC, in collaboration with other institutions, have developed various documents, which state the minimum information that fisheries products must incorporate to comply with European legislation on traceability.

With regards to the weighing of fisheries products, there is no particular regulation—in neither the State nor regional level—that expressly regulates this aspect. However, the failure to fulfill all of the weighing obligations and requirements before the first sale is classified as a serious infringement under Article 100.2.t) of the States Maritime Fisheries Law.

In relation to the first sale of fishery products, RD No. 418/2015 on first sale thoroughly regulates this matter, establishing landing and discharges sites as well as requirements to be met by fish markets and other authorized marketing establishments. Additionally, it specifies the procedures for first sale and recognizes the non-compulsory nature of the auction as a system to carry out the first sale.

As for sales notes, Article 103.j) of the State Maritime Fisheries Law classifies unissued sales notes and the issuing of sales notes which include false data as a serious infringement. RD No. 418/2015, on first sale, establishes more restrictive provisions than the Fisheries Control Regulation in terms of submission deadlines and the transmission format of sales notes. It establishes the obligation to electronically transmit sales notes within 24 hours after the first sale has occurred, whether or not the annual turnover in first sale is inferior or superior to 200,000 Euros. However, the Fisheries Con-trol Regulation establishes a deadline of 48 hours for the first case and does not require, but only recommends, the electronic transmission.

In the case of take-over declarations, RD No. 418/2015, on first sale, also requires electronic sub-mission and a deadline of 24 hours from the completion of landing.

In addition, the minimum content regulated by RD 418/2015 on first sale for sales notes, take-over declarations and transport declarations is more comprehensive than the EU regulations.

Regarding transport documents, Spanish legislation regulates the transport of fishery products without the appropriate required documentation, in accordance with Article 103.d) of the State Mar-itime Fisheries Law, as a serious infringement.

Finally, regarding producer organizations, both State and regional legislation regulate, in line with European legislation, all aspects of the requirements for the recognition of these entities, including the granting and withdrawal of such recognition.

InspectionIn order to ensure that the rules of the CFP are met, EU legislation regulates the completion of inspections, which are carried out by designated agents by the national authorities of the MS, by the EC or by the European Agency for Fisheries Control. These inspections can be differentiated into four categories depending on where they are carried out: inspections at sea, inspections in port, transport inspections and market inspections.

In the Spanish legal system, the obligation to carry out inspections of fishing activities is regulated in the State Maritime Fisheries Law and RD No. 176/2003, of February 14th. In addition, AA.CC have their own regulations on the inspections that occur in issues related to the management of the fish-ing sector and marketing.

Since 2012, following the reorganization of ministerial departments and the emergence of the cur-rent MAGRAMA, the coordination of all powers relating to fishing control activity corresponds to the Sub-Directorate General for Control and Inspection, which works with the AA.CC, other MS and the EU.

In this matter, the Spanish legal system complies with EU regulations. Although, in some cases it is more stringent and, in other cases, there are contradictions:

� Regarding inspection reports, there is a contradiction between, on one hand, the provi-sions of EU regulations and the States Maritime Fisheries Law, and, on the other hand, the requirements of RD No. 176/2003. The first two require inspectors to prepare a report after each of their inspections, conveying their findings. The latter only requires to pre-pare such a report in case an infringement is detected. In this case, the requirements of the Law prevail over the RD because of the hierarchical superiority of the Law, and there-fore Spanish fishing inspectors are not only required to complete an inspection report in the case of an infringement, but they must complete after every inspection, starting the report from the minute they begin each inspection.

� If it is suspected that a vessel may have committed a series of specific serious or very serious infringements as classified in the Fisheries Control Regulation, it provides that the authorities of the flag Member State or the coastal Member State may divert the vessel suspected of having committed the offense to port. RD No. 176/2003, however, provides for the possibility of adopting this measure if it is suspected that there has been any infringement classified as serious or very serious and the inspector must be the one to make the decision to divert the vessel to port.

EnforcementIn order to ensure compliance with legislative and regulatory instruments, one of the deterrent measures consists of the characterization of infringements and sanctions in the law.

The Fisheries Control Regulation requires MS to take appropriate measures against the natural persons or legal entities suspected of having infringed the regulations of the CFP. EU regulation establishes both direct applicable measures as well as basic measures, whose development cor-responds to the MS:

� Adoption by MS of administrative or criminal proceedings in accordance with their nation-al legislation.

� Enforcement of sanctions and ancillary sanctions proportionate to the seriousness of the infringement.

� Possibility of imposing fines proportionate to the turnover of the legal person or to the economic advantage achieved, or thought to be achieved, through the infringement.

� Taking immediate enforcement measures.

� Adoption of a point system for having committed a serious infringement to be allocated to the owner of the fishing license. The accumulation of points may result in suspension or permanent withdrawal of the license.

� Obligation to establish a national register of infringements where all infringements, com-mitted by Spanish fishing vessels or by Spanish citizens, are entered indicating the imposed sanctions and the number of assigned points.

The Spanish legal system correctly reflects the direct implementation measures provided for in EU regulations regarding enforcement. Spain has also adopted regulatory instruments to regulate the measures requiring further development by MS. Although Spain has been implementing the system of assigning points for all offenses since January 1st, 2012, RD No. 114/2013 was adopted after the date set by the Implementing Regulation.

However, there are some inconsistencies between Spanish and EU legislation:

� RD No. 114/2013 regulates the need only to record licenses in the National Register of Fishing Vessels and the European Register of Vessels when they have been withdrawn. Whereas European legislation also provides the need to record licenses that have been suspended.

� Spanish law does not provide for the requirement to record the list of licenses indicating assigned points, suspensions and permanent withdrawals in the secure part of the offi-cial website. At the time of preparing this document, no such website exists.

Data and InformationThe implementation of the Fisheries Control Regulation generates a significant amount of data and information, such as data received by Fisheries Monitoring Centers (FMC) or data and information contained in electronic logbooks, which must be processed in order to verify and effectively monitor compliance with the requirements under the CFP. But to be useful for this purpose, the data must be subject to checks, analysis and verifications. Therefore, the Fisheries Control Regulation contains a series of requirements for MS to ensure that the data and information generated is used optimally for purposes of control. Thus, generated data and information should be included in a database and subject to a computerized validation system (CVS).

In the same way, access to generated information can be useful not only for control, but also for operators to fulfill their obligations properly, for research projects, to assess the implementation of the regulations in this area and many other purposes. Given the usefulness of the data, it is impor-

tant not to forget that transparency is one of the principles of good governance on which the current CFP should be guided.

Spain has databases and a CVS. However, the latter should be strengthened. One of the tools for accessing data is an official website that has a publicly accessible part and a secure part. Such official website, at the time of writing this document, is not available in Spain.

The access to data is very strictly regulated in the Fisheries Control Regulation. However, these limitations should be interpreted in accordance with other applicable legislation in Spain, such as legislation on transparency and on access to environmental information.

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A. Introduction

1. Context

1.1. Why is a fisheries policy necessary?

We live on Planet Earth but it is in fact, the “Blue” Planet. The oceans and seas cover most of its sur-face. And much of our population is settled around these waters. In the EU, 200 million Europeans live in coastal areas1. We can say, both metaphorically and literally, that there is a web of connec-tions between humans and the sea.

Living marine resources, especially fish, have occupied an important place in society for thousands of years and still occupy it now, in the second decade of the 21st century not only as an important source of nutrition but also from a socio-cultural point of view. Early humans caught fish, shellfish and other forms of aquatic life along the shores of lakes, rivers, and oceans. Our ancestors used fishing spears 90,000 years ago, nets 40,000 years ago and hooks 35,000 years ago. The old-est documented human communities who depended on fishing prospered in the vicinity of Lake Mungo (Australia) 30,000 years ago and in Crete 8,000 years ago. At least 4,000 years ago the Egyptian aristocrats fished for leisure2. In Spain, fishing activities also have a long history root-ed in the development of civilizations of the ancient Mediterranean. This knowledge occupies the minds of scholars from various disciplines, including archaeologists and architects3. In the Middle Ages, commercial fishing began with the development of better preservation techniques (drying, smoking and salting) and the improvement of transportation, going from local small-scale activities to large-scale commercial enterprises. The improvement of the design and construction of ships and fish conservation techniques allowed for long-term storage and large-scale distribution of fish products4. In 1883, Thomas Huxley, an English biologist, in his opening speech at the Interna-tional Exhibition of Fishing assured that the resources of cod, herring, sardine and mackerel were

1 http://ec.europa.eu/environment/iczm/home.htm 16.12.2014. For the demographics of coastal areas in general, see: Balk D., Mont-gomery M. & McGranahan G. (2014). Coastal Demography: Distribution, Composition and Dynamics. Bowen R.E. et al. (Ed.) Oceans and Human Health: Implications for Society and Well-Being (pp. 49-69). Chichester: Wiley-Blackwell. 2 Lackey, R.T. (2005). Fisheries: history, science, and management. Lehr J.H. et.al. (Ed.) Water Encyclopedia: Surface and Agricultural Water (pp. 121-129). New York: John Wiley and Sons.3 See for example the materials of the international conference History of fishing in the area of the Strait, June 1-5 2004, Port of Santa María, Cádiz.4 Lackey, R. T. Op. cit.

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CHAPTER 1 / INTRODUCTION / Page 27

inexhaustible and that human activity did not seriously affect the amount of fish5. However, in the twentieth century, the technological level of the vessels and fishing gear — as in many other areas of interaction between man and the Planet — improved significantly. This affected the availability of marine living resources and the environment where they develop. The optimism of Thomas Huxley is no longer possible. No one questions that it is necessary to take measures to prevent the worst-case scenario. Thus, we need to formulate a reasonable, coherent, and sustainable fisheries policy to organize such measures.

1.2. History of the fisheries policy in the European Union

The contemporary world is facing a wide variety of problems, many of which cannot be solved at the national level. The management of fisheries is one of them. Neither fishery resources nor the marine environment know of borders.

Although the first attempts to use international law to organize the issue of fisheries management in international waters are as old as international law itself6, here we do not intend to return to the times of Francisco of Vitoria and Hugo Grotius, regardless of their contribution to the problem and the importance of the concept of freedom of the seas which, for a long time, dominated the issue. We will begin with the second half of the 20th century, given that it was in that time when the paral-lel development of international law and fishing technology took place. In 1958 the United Nations Organisation convened the first Conference on the Law of the Seas in Geneva which produced, among other treaties, the Convention on Fishing and Conservation of Living Resources of the High Seas7. The text of the Convention recognizes in its preamble that:

“(…) The development of modern technique for the exploitation of the living resources of the sea, increasing man’s ability to meet the need of the world’s expanding population for food, has ex-posed some of these resources to the danger of being over-exploited,

Considering also that the nature of the problems involved in the conservation of the living re-sources of the high seas is such that there is a clear necessity that they be solved, whenever possible, on the basis of international cooperation through the concerted action of all the States concerned”8.

Article 1.2 of the Convention required MS to adopt or to cooperate with other States in adopting the measures, for their respective nationals as may be necessary for the conservation of the living resources of the high seas. Article 2 defines “conservation of the living resources of the high seas” as the aggregate of the measures rendering possible the optimum sustainable yield from those resources, so as to secure a maximum supply of food and other marine products.

The Treaty of Rome9 establishing the EEC, was signed a year before the Geneva Convention of 1958. With regards to fishing, the text of the Treaty did not show any remarkable achievement although

5 To be fair to Mr. Huxley, he admitted that he could not say the same about other species: http://aleph0.clarku.edu/huxley/SM5/fish.html (last entry: 17.04.2014).6 Orrego Vicuña, F. (1999). The Changing International Law of High Seas Fisheries: From Freedom of Fishing to Sustainable Use (pp. 3 and following). Cambridge: Cambridge University Press.7 Convention on Fishing and Conservation of Living Resources of the High Seas (adopted on 29.04.1958, entered into force on 20.03.1966), 559 UNTS p. 285. Available online at: http://www.profepa.gob.mx/innovaportal/file/3385/1/convencion_sobre_pesca_y_conservacion_de_los_recrusos_vivos_del_alta_mar.pdf.8 Ibid. 9 Treaty establishing the European Economic Community (adopted on 25.03.1957, entered into force on 01.01.1958), 294, 295, 296, 297, 298 UNTS. Currently, the treaty in force is the TFEU.

http://aleph0.clarku.edu/huxley/SM5/fish.html

http://aleph0.clarku.edu/huxley/SM5/fish.html

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as pointed out by Eduardo Díez Pater: “Ever since the creation of the Community, the six found-ing states10 committed to elaborating a common fisheries policy in the framework of the common agricultural policy”11. Article 38 of the Treaty of Rome described fisheries products as “agricultural products”. This resulted in the adoption of a similar point of view in the perception of agriculture and fisheries. The CAP is characterized by the payment of subsidies for crops and farmland12. Fisheries work differently. Fisheries resources are shared among many fishermen and lack of control can lead to a lack of resources — “the resources a fisherman captures today cannot be captured tomorrow by another”13. As fishing started growing, Garrett Hardin, American ecologist, published an article in Science Magazine entitled “The tragedy of the commons”. The author explains this concept, and applies it among other matters, to the field of fisheries depletion:

“the oceans of the world continue to suffer from the survival of the philosophy of commons. Mari-time nations still respond automatically to the shibboleth of the “freedom of the seas”. Professing to believe in the “inexhaustible resources of the oceans”, they bring species after species of fish and whales closer to extinction”14.

In 1964, in London, some European countries decided to reserve two 6 nautical mile zones (within the belt of six miles measured from the baseline of the territorial sea, where the coastal State had the exclusive right to fish and exclusive jurisdiction in matters of fisheries and within the belt between 6 and 12 miles measured from the baseline of the territorial sea where the right to fish was not exclu-sive)15.

The incentives for the development of an EEC common fisheries policy were the negotiations about the enlargement of the Community. The countries that joined the EEC had significant fishing fleets16. The adoption of the first relevant regulations for the CFP took place in 1970 (Regulation 2141/70 laying down a common structural policy for the fishing industry17 and 2142/70 about a common organization of the market in fishery products18). This first stage was generally marked by the prin-ciple of non-discrimination, with certain conditions to protect local fisherman19.

In 1982 with the adoption of the text of the UNCLOS20 called “the constitution of the oceans”21, the

10 Belgium, France, Italy, Luxembourg, the Netherlands and Federal Republic of Germany. 11 Díez Patier, E. (1986) History of the Common Fisheries Policy (lecture given at the seminar on “Analysis of the fisheries sector. Effects of the integration of Spain into the E.C.C”, University of Menéndez Pelayo, La Coruña, 22.27.07.1985), Journal of Agrosocial Studies, 134, p. 148. 12 Khalilian S., R. Froese, Proelss A. & Requate T. (2010). Designed for failure: A critique of the Common Fisheries Policy of the Eu-ropean Union, Marine Policy, 34(6), p. 5. On subsidies in the Common Fisheries Policy under the system of the previous Regulation (2371/2002) see - Lutchman I., C. Grieve, des Clers S. & De Santo E. (2009). Towards a Reform of the Common Fisheries Policy in 2012 - CFP Health Check. (p. 43-49).IEEP:London.13 European Commission, 2011. “Executive summary of the impact assessment accompanying the document Proposal for a regulation of the European Parliament and of the Council on the Common Fisheries Policy” SEC (2011) 892 final, p. 2.14 Hardin, G. (1968). The Tragedy of the Commons, Science, 162(3859), 1243-1248. 15 The European Fisheries Convention (adopted on 09.03.1964, entered into force on 06.12.1966) 581 UNTS. See Law 20/1967 of 8 April, on the extension of the waters under Spanish jurisdiction to twelve miles for the purpose of fishing (BOE no. 86 of 04.11.1967).16 Britain, Denmark, Ireland and Norway (the latter did not agree to end EEC) Lutchman I., C. Grieve, des Clers S., De Santo E., Towards a Reform of the Common Fisheries Policy in 2012- a CFP Health Check, IEEP, London, 2009. p. 12.17 OJ L 236 of 27.10.1970, p. 1. 18 OJ L 236 of 27.10.1970, p. 5. 19 Diez Patier, E.(1986). History of the Common Fisheries Policy, Journal of Agrosocial Studies 134, p. 150. 20 United Nations Convention on the Law of the Sea (adopted on 10.12.1982, entered into force on 16.11.1994), 1833 UNTS p. 3.21 “A constitution for the oceans” is the title of the statements by Tommy T.B. Koh of Singapore, President of the Third United Nations Conference on the Law of the Sea, 18.12.2014. Available online at: http://www.un.org/depts/los/convention_agreements/texts/koh_span-ish.pdf.

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way of thinking about marine areas changed considerably. The Convention established the EEZ of 200 nautical miles and granted sovereign rights to coastal States to exploit and manage the natu-ral resources (both living and non-living). In 1976 in the Hague, the States of the EEC had already declared the sovereignty over the 200-mile EEZ. The EEZs cover 20% of the area of the oceans, but at the same time up to 90-95% of the fisheries22. This explains their importance for fishing activities. The common EEZ implied that MS would lose access to some of their catch areas, which would put more pressure on the fisheries resources of the EU23. To compensate the losses, “total allowable catches” (TAC) - a system of quotas and distribution between the MS - was introduced. In 1983 the pressure of a new enlargement forced MS to reach an agreement on the management of fisheries, since the two large Iberian fishing States, Portugal and Spain, were about to join the EEC24. There-fore, it was adopted the Regulation 170/83, establishing a community system for the conservation and management of fishery resources25, which formally established the CFP. Since then, approx-imately every 10 years a new regulation was introduced to reform it (Regulation (EEC) 3760/92 of the Council26 and Regulation (EC) 2371/2002 of the Council27).

The CFP was reformed in 2002 to address the environmental, economic and social dimensions of fisheries by Regulation (EC) No. 2371/2002 of December 20, on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. In 2002, the reform identified the need to limit fishing effort and the catch level as well as to make certain technical measures effective. To ensure sustainable fishing, the quantity of fish extracted from the sea is not the only important element, but also the species of fish, its size, and the techniques used to capture it, as well as the area where they are caught.

However, after the reform, the need to introduce further reforms was determined due to, essentially, the depletion of fish stocks, the overall threat to the marine ecosystem and the consequent impact on the fishing industry and fishing communities dependent on fisheries. The latest reforms of the CFP were adopted in December 2013 and are currently in force. The legislative packet includes the following three regulations:

� The Common Fisheries Policy: Regulation (EU) 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy28.

� The Common Organisation of the Markets in fisheries and aquaculture products: Reg-ulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organisation of the markets in the fishery and aquaculture products sector29.

� The European Maritime and Fisheries Fund: Regulation (EU) No 508/2014 of the

22 A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources, ed. Ebbin S.A., Hoel A.H., Sydnes A.K. 2005, Dordrecht, Springer, p. xi. 23 Churchill R. & Owen D. (2010), The EC Common Fisheries Policy, (pp. 6-7), Oxford: Oxford University Press,24 Ibid. 25 OJ L 24, 27.1.1983, p.1.26 Council Regulation (EEC) No 3760/92 of 20 December 1992 establishing a Community system for fisheries and aquaculture, OJ L 389, 31.12.1992, p.1.27 Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ L 358 of 31.12.2002) This Regulation was in force until 31.12.2013.28 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 (OJ L 354 of 28.12.2013 p. 22).29 OJ L 354, of 28.12.2013.


European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund30.

1.3. The Fisheries Sector in Spain

Spain has one of the largest fishing fleets in the EU, in terms of engine power, along with Italy, France and the United Kingdom31. However, in terms of gross tonnage, the Spanish fishing fleet in 2012 was the largest with 388,000 gross tons — this figure was two times higher than in UK which had the next largest fleet in those terms. The Norwegian fishing fleet was only slightly smaller than the Spanish one in terms of gross tonnage, although in terms of power it was the largest in the EU (1.2 million kW)

In 1997, the total catches of EU-28 amounted to 7.6 million tons of fish weight — calculated as the sum of the catches in the seven regions which are covered by statistics addressed by legislative acts of the EU — however, that total decreased almost every subsequent year, although it was relatively stable between 2007 and 2011. The total catches in 2012 (4.4 million Tons of fish weight) was a 28% lower than in 2002 (6.1 million tons) and a 42.1% lower than in 1995. The total catches by fishing fleets from Denmark, Spain, France and the UK accounted for just over half (53.1%) of all catches by the fishing fleets of the 28 EU countries in 2012.

About 74% of the catches made by the 28 EU countries in 2012 were performed in the northeast Atlantic Ocean. The Mediterranean and the Baltic Sea were the second areas in terms of fishing importance.

30 OJ L 149, of 25.05.2014.31 In 2012 the fleet of each of these countries had a total power of in between 0.8 million kW and 1 million kW.

Illustration 1:

The fishing fleet in the EUSource: Eurostat (online data code: fish_fleet)

1500

1000

500

0

60

40

20

0

Bel

gium

Bul

garia

Den

mar

k

Ger

man

y

Esto

nia

Irela

nd

Gre

ece

Spa

in

Fran

ce Italy

Cyp

rus

Latv

ia

Lith

uani

a

Mal

ta

Net

herla

nd

Pol

and

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tuga

l

Rom

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Slo

veni

a

Finl

and

Sw

eden

Uni

ted

Kin

gdom

Icel

and

Nor

way

Total power (left-hand scale, 1000 kW)

Total tonnage (right-hand scale, 1000 GT)

(1) The Czech Republic, Luxembourg, Hungary, Austria and Slovakia: landlocked countries without a marine fishing fleet. Croatia: not available.Source: Eurostat (online data code: fish_fleet)


Fisheries activities have a great historical tradition in Spain and the national fisheries sector is one of the most important in all of Europe. In February of 2014, the Spanish fleet had 9,985 vessels which represented 11.3% of the total EU-28 considering the number of vessels and 22.0% considering the tonnage (GRT)32. Spain is also among the countries with the highest volume of catches (17.59% of the entire EU in 2011)33 and it is the country with the highest number of jobs in the sector. It is also the country with the highest level of imported fish tons and the main exporter of the EU.

The historic series of catches of the Spanish fishing fleet shows two clear trends: a rise until 1966, in which the maximum was 1,455,000 tons and a downward trend with different cycles that extends from 1967 until now. In 2010, the level of catches of Spanish vessels stood below one million tons, similar to the year 196134.

1.4. The importance of Control Regulations

Assuming that a fisheries policy is necessary and that in Europe the basis for organizing it is estab-lished by the EU, the following question is: What do we do with policies? The policies, once passed, must be implemented and consequently obeyed to yield the expected results. This is fundamental for the rule of law which is one of the values of the EU35. Directives, regulations and other kind of rules are the most important tools to transform policy into action36. However, this transformation only occurs when they are effective and valid. Their effectiveness (achieving the purpose of the rule, e.g. reducing discards) and validity (a rule is obeyed but its objective is not achieved) depend on the degree of implementation and compliance37.

The EU developed a system of legislative instruments that can either be transposed into the MS legal order (Directives) or which can be implemented directly in MS (Regulations). The latter are more present in the scope of the CFP and have evolved over time, as we have already mentioned

32 EU, “The Common Fisheries Policy in facts and figures, basic statistic information”. Ed. 2014, ISBN 978-92-79-34193-9.33 Ibid.34 Greenpeace Report “Employment on Board: analysis of employment in the Spanish fishing sector and its economic impact”.35 Art. 2, Treaty of the European Union (TEU). 36 In very similar terms, this idea is provided in Chapter 8 of Agenda 21.37 Barreira, A. Implementation of and compliance with international commitments: an imperative for Rio+20, in the author’s archives.

Ilustration 2:

Catches in the EUSource: Eurostat (online data code: fish_ca_main)

Eastern central Atlantic

(FAO area 34)7%

North eastAtlantic

(FAO area 27)74%

Totalcatch EU-28:

4.42 million tonnes

Other regions9%

Mediterranean& Black sea

(FAO area 37)10%

(1) Total catches in the seven regions covered by legal acts, namely: 21-Atlantic Northwest; 27-Atlantic, Northeast; 34-Atlantic, Eastern Central; 37-Mediterranean and Black Sea;41-Atlantic, Southwest; 47-Atlantic, Southeast; and 51-Indian Ocean, Western. Consequently cathces in inland water waters are excluded.Source: Eurostat (online data code: fish_ca_main)


above. One of the weaknesses of the CFP has always been, without doubts, its enforcement. In fact, since fisheries started being regulated by the EEC, then by the European Community and now by the EU, enforcement has been a problem38. As in any normative area, it is not enough to impose the adequate rules to the persons to whom they are addressed.

Ensuring compliance with the obligations by all those to whom they are addressed is vital to achieve their objectives. Failure to comply with these obligations limits the efficiency of commitments, dam-ages the legal processes and may lead to instability of the legal order. In addition, it weakens the credibility of public institutions at all levels: international, regional and national. Failure to com-ply with obligations may include failure to develop standards, not complying with the procedural requirements, failure to comply with an institutional obligation, or not respecting the obligations set out in regulatory instruments39.

MS and the EC should ensure that this policy actually works. For that purpose there are a large number of instruments established by European legislation that will be explained in more detail below. The EU certainly provides a platform for cooperation, exchange of experience and scientific data to assist MS in this task. However, the adoption of a general regulation is just the beginning. The decision to preserve fisheries resources, seems to have no alternative40 if we are to ensure sustainability, lead the EEC and now the EU to the TAC system — which cannot operate efficiently without a control system. The Council Regulation on the European Maritime and Fisheries Fund recognizes that “the success of the CFP depends on an effective system of control, inspection and enforcement, as well as on the availability of reliable and complete data, both for scientific advice purpose and for implementation and control purposes”41.

1.5. The Evolution of the Common Fisheries Policy Control Regulations

The introduction of the TAC system required the EEC to create control measures. In 1982, Council Regulation (EEC) No 2057/82 of 29 June 1982 establishing certain control measures for fishing activities by vessels of the MS42 was passed. Subsequently, two other control regulations were developed in 1987 and 1993:

� Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing certain control meas-ures for fishing activities43,

� Council Regulation (EEC) No 2847/93 of 12 October 1993, establishing a control system applicable to the Common Fisheries Policy44.

In the 1993 regulation, progress was made as the concept of “certain measures” was substituted to

38 Sissenwine M.& Symes D.(2007) Reflections on the Common Fisheries Policy: Report to the General Directorate for Fisheries and Maritime Affairs of the European Commission, p. 9.39 Barreira, A. (2012) Public participation in MEAs compliance: A proposal to improve the Institutional Framework for Sustainable De-velopment. Outreach.40 In addition, the EU has international obligations to fulfill this purpose – see Froese R., M. Quaas (2013) Rio + 20 and the reform of the Common Fisheries Policy in Europe, Marine Policy 39 pp. 53-55.41 Regulation (EU) No 508/2014 of the European Parliament and of the Council of May 15 2014, on the European Maritime and Fisheries Fund (OJ L 149 of 20.05.2014).42 OJ L 220 of 29.07.1982, p. 1. 43 OJ L 207 of 29.07.1987, p. 1.44 OJ L 261 of 20.10.1993, p. 1.


“a system of control”. It is necessary to carry out an overall assessment of the 1993 Regulation as it directly precedes de 2009 Control Regulation, which is currently in force45. In order to do so, a very valuable source of information is the Special Report No. 7/2007 of the ECA on the control, inspec-tion and sanction systems46. The negative assessment of the past situation by the ECA resulted in the approval of Regulation 1224/2009 by the European Community.

The text of the report says, “The Common Fisheries Policy, was instituted in 1983 with the objec-tive of sustainable exploitation of living aquatic resources. Setting total allowable catches (TAC) and national quotas in order to limit catch volumes is the cornerstone of this policy. The existence of complete and reliable data and the application of effective inspection and penalty systems are essential to the success of such an approach47”. The ECA report concluded that:

� Catch data are neither complete nor reliable and the real level of catches is thus unknown. As a consequence this prevents proper application of the TAC and quota systems. In the MS, the regulatory framework and the procedures in force guarantee neither that the data collected are complete, nor that inconsistencies are detected when validated. For its part, the Commission is not in a position to identify satisfactorily errors and misstate-ments in the data forwarded by the MS and to take the timely decisions necessary to protect the resource (paragraphs 18 - 51),

� The inspection systems do not provide assurance that infringements are effectively pre-vented and detected; the absence of general control standards is an impediment to adequate control pressure and optimization of inspection activities in the Member States. Moreover, in actual fact it restricts the extent and scope of the Commission’s work of eval-uating national arrangement and consequently limits the latter’s ability to give an opinion of the overall effectiveness of national systems (paragraphs 52 - 87),

� The procedures for dealing with reported infringements do not support the assertion that every infringement is followed up and still less that infringements attract penalties; even when penalties are imposed their deterrent effect is, on the whole, limited. As regards infringements of Community legislation by a Member State, the only instrument of proven effectiveness available to the Commission is an action before the Court of Justice for fail-ure to fulfill an obligation; however, some of the inherent characteristics of such actions limit the utility of such actions and make this an insufficiently responsive instrument (par-agraphs 88 - 106),

45 Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343 of 22.12.2009, p.1).46 European Court of Auditor’s Special Report No. 7/2007 on the control, inspection and sanction systems relating to the rules on con-servation of Community fisheries resources together with the Commission’s replies ( OJ C 317 of 28.12.2007, p.1).47 Ibid.


48

Continuation

� Overcapacity detracts from the profitability of the fishing industry and in a context of decreasing authorized catches is an incitement to non-compliance with these restric-tions. It also affects the quality of the data forwarded. After the failure of the programmes for adapting fishing capacity, the current approach, which is essentially based on reduc-ing the fishing effort, is unlikely to resolve the problem of overcapacity (paragraphs 107 - 120). If this situation continues, it will bring grave consequences not only for the natural resource, but also for the future of the fishing industry and the areas associated with it48.

Among the recommendations to the authorities, the ECA emphasized the need to strengthen the means of inspection, examination, and sanctions. The ECA’s recommendations were directed to:

� The EC to ensure the implementation of an electronic system for recording and reporting fishing activity data as quickly and widely as possible, and the strengthening of controls on the data forwarded to it.

� MS, to improve the quality of their catch data, to develop analytical, programming and follow-up tools for their inspection activities and to remind their competent authorities of the need to impose deterrent sanctions.

The recommendations for both the EC and the MS was to adopt active measures to reduce struc-tural overcapacity in the dishing industry. In addition, the ECA made clear the need to specify in the regulations the various elements, essential to an effective inspection and sanction system and the need to reinforce the Commission’s ability to put pressure on defaulting MS49.

48 Ibid.49 Special Report Nº7/2007, p. 4-5.

35

1. The Control and Enforcement of the CFPWhen the ECA elaborated its report, the EC was consolidating the control regulation of 1993 with the intention of submitting a proposal to the Council in 2008. As a consequence of the ECA report, a new control regulation of the CFP was adopted: Council Regulation (EC) No. 1224/2009, of 20 November 2009, establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy (Fisheries Control Regulation)50. That Regulation defines control as “monitoring and surveillance”51 and enforcement as “any action taken to ensure compliance with the rules of the common fisheries policy”52. At the same time, surveillance is defined as “the observation of fishing activities on the basis of sightings by inspection vessels or official aircrafts and technical detection and identification methods”53.

The current Fisheries Control Regulation was adopted while the previous regulatory instrument of the CFP of 2002 was still in force. This Fisheries Control Regulation is still in force under the current Regulation of the CFP of 2013 although it has been amended by Regulation (EU) 2015/812 of the European Parliament and of the Council, of 20 May 2015 amending Council Regulations (EC) No 850/98, (EC) No 2187/2005, (EC) No 1967/2006, (EC) No 1098/2007, (EC) No 254/2002 (EC) No 2347/2002 and (EC) No 1224/2009 and Regulations (EU) No 1379/2013 and (EU) No 1380/2013 of the European Parliament and of the Council, as regards the landing obligation, and repealing Council Regulation (EC) No 1434/98 (Regulation (EU) 2015/812)54.

1.1. The Enforcement and Control in the CFP Regulation

To achieve the objectives of the CFP, provided for in Article 2 of the Regulation, it is necessary to ensure the implementation and compliance of the CFP. Therefore, in its preamble it recognizes that:

“(59) in order to ensure compliance with the rules of the CFP, an effective system of control, in-

50 OJL 343, of 22.12.2009, p. 1.51 Art.4.3, Fisheries Control Regulation.52 Art. 4.26, Ibid.53 Art. 4.5, Ibid.54 OJ L 133, of 29.5.2015.

B. Fisheries control in the European Union

CHAPTER 2 / FISHERIES CONTROL IN THE EUROPEAN UNION / Page 36

spection, and enforcement should be established (…)55

(60) the use of modern and effective technologies should be promoted in the framework of the Union system for control, inspection and enforcement (…)

(61) In order to ensure that the conditions in the different Member States for the application of con-trol and enforcement rules are comparable, cooperation between Member States on identifying effective, proportionate, and dissuasive penalties should be encouraged”.

Part IX of the CFP Regulation focuses on control and enforcement. Article 36 of this Regulation provides:

1. Compliance with the CFP shall be ensured through an effective Union fisheries system, in-cluding the fight against IUU fishing.

2. Control and enforcement of the CFP shall in particular be based on and shall include the following:

a. a global, integrated and common approach;

b. cooperation and coordination between Member States, the Commission and the Agency;

c. cost-efficiency and proportionality;

d. the use of efficient control technologies for the availability and quality of data on fish-eries;

e. a Union framework for control, inspection, and enforcement;

f. a risk-based strategy focused on systematic and automated cross-checks of all avail-able relevant data;

g. The development of a culture of compliance and cooperation among all operators and fishermen.

The Union shall adopt appropriate measures with regard to third countries which allow non-sustainable fishing.

3. Member States shall adopt appropriate measures for ensuring control, inspection and en-forcement of activities carried out within the scope of the CFP measures, including the estab-lishment of effective, proportionate, and dissuasive penalties

The CFP Regulation provided for the creation of a group of experts on compliance in order to assess, facilitate and strengthen the implementation of, and compliance with, the obligations under the Union fisheries control system56. This group was created by the Commission by means of Deci-sion C (2014) 9643 of 16.12.2014 setting up the expert group on compliance with the obligations under the Union fisheries control system57. Their first meeting took place in March 2015. It is com-posed of representatives of national administrations, chaired by a representative of the Directorate

55 The preamble of Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014, on the European Mari-time and Fisheries Fund, sets out “(3) the success of the CFP depends on an effective system of control, inspection and enforcement, as well as on the availability of reliable and complete data, both for scientific advice purposes and for implementation and control purposes. The European Maritime and Fisheries Fund should therefore support those policies”.56 Art. 37, CFP Regulation.57 Available on http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3291&NewSearch=1&New-Search=1.

http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3291&NewSearch=1&NewSearch=1

http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3291&NewSearch=1&NewSearch=1


General for Maritime Affairs and Fisheries (DG MARE) of the EC, its access is restricted and its tasks include:

a) Assisting the EC in elaborating legislation or defining policies.

b) Ensuring the coordination of and establishing cooperation between MS authorities and the EC in order to contribute to the enforcement of CFP rules.

c) Following the development of national policies and the implementation of EU regulation by national authorities.

d) Exchanging experiences and encouraging good practices and transparency in the implementation of the obligations of fisheries control.

In addition, the CFP Regulation provides for the possibility to carry out pilot projects on new control technologies and data management systems as well as the possibility for MS to require their opera-tors to contribute proportionally to the operational costs of implementing the Union fisheries control system and of data collection58.

1.2. The Enforcement and Control in the European Maritime and Fisheries Fund Regulation

Among the objectives of the EMFF is to promote the implementation of the CFP59. In order to do so, the EMFF shall pursue the following specific objectives60:

a) The improvement and supply of scientific knowledge as well as the improvement of the collection and management of data;

b) The provision of support to monitoring, control and enforcement, thereby enhancing institutional capacity and the efficiency of public administration, without increasing the administrative burden.

The EMFF Regulation requires, in connection with the latter objective, that the operational program contain a number of requirements of the system of control, inspection and enforcement, the control measures and the specific objectives which are to be implemented61.

In accordance with the requirements of Article 17.3 of the EMFF Regulation, the EC adopted the Implementing Decision of 15 July 2014 identifying the priorities of the Union policy for enforcement and control policy in the framework of the European Maritime and Fisheries Fund62.

The EMFF can finance measures with regard to enforcement and control in accordance with the

58 Arts. 38 and 39, CFP Regulation.59 Art.5.b), EMFF Regulation.60 Art. 6.3 Ibid.61 Art. 18.1.o), Ibid.62 OJ L 209, of 16.7.2014.


principles of shared and direct management63. Budgetary resources under shared management amount to 580,000,000 Euros for the following types of control and enforcement measures64:

a) the purchase, installation and development of technology, including computer hardware and software, VDS, closed-circuit television systems and IT networks enabling the gath-ering, administration, validation, analysis, risk management, presentation (by means of the websites related to control) and exchange of, and the development of sampling methods for, data related to fisheries, as well as interconnection to cross-sectoral data exchange systems;

b) the development, purchase and installation of the components, including computer hard-ware and software, that are necessary to ensure data transmission from actors involved in fishing and the marketing of fishery products to the relevant Member State and Union authorities, including the necessary components for ERS, VMS and AIS used for control purposes;

c) the development, purchase and installation of the components, including computer hardware and software, which are necessary to ensure the traceability of fishery and aquaculture products, as referred to in Article 58 of Regulation (EC) No 1224/2009;

d) the implementation of programmes for exchanging data between MS and for analysing them;

e) the modernisation and purchase of patrol vessels, aircrafts and helicopters, provided that they are used for fisheries control for at least 60% of the total period of use per year;

f) the purchase of other control means, including devices to enable the measurement of engine power and weighing equipment;

g) the development of innovative control and monitoring systems and the implementation of pilot projects related to fisheries control, including fish DNA analysis or the development of websites related to control;

h) training and exchange programmes, including between MS of personnel responsible for the monitoring, control and surveillance of fisheries activities;

i) cost/benefit analyses and assessments of audits performed and expenditure incurred by competent authorities in carrying out monitoring, control and surveillance;

j) initiatives, including seminars and media tools, aimed at enhancing awareness, among both fishermen and other players such as inspectors, public prosecutors and judges, as well as among the general public, of the need to fight illegal, unreported and unregulated fishing (IUU) and of the implementation of the CFP rules;

63 Arts. 7, 13.3, 76, 85.b) and 87, Ibid. In accordance with the principle of shared management, the EC delegates implementation tasks to EU Member States. In accordance with the principle of direct management, the EC is responsible for all tasks of implementation of the EU budget. These tasks are carried out directly by their services either at headquarters, at the EU delegations or through executive agencies of the European Union. 64 The measures listed in points (h) to (l) shall only be eligible for support if they relate to control activities carried out by a public au-thority. In the case of the measures listed in points (d) and (h), the Member States concerned shall designate the managing authorities responsible for the project.


k) operational costs incurred in carrying out more stringent control for stocks subject to specific control and inspection programmes established in accordance with Article 95 of Regulation (EC) No 1224/2009 and subject to control coordination in accordance with Article 15 of Council Regulation (EC) No 768/2005;

l) programmes linked to the implementation of an action plan established in accordance with Article 102 (4) of Regulation (EC) No 1224/2009, including any operational costs incurred.

The following types of operations aimed at implementing a system of control, inspection and enforcement are eligible under direct management:

a) joint purchase and/or chartering by several MS belonging to the same geographical area, of patrol vessels, aircrafts and helicopters, provided that they are used for fisheries control for at least 60 % of the total period of use per year;

b) expenditure relating to the assessment and development of new control technologies, as well as of processes for the exchange of data;

c) all operational expenditure related to control and evaluation by the Commission of the implementation of the CFP, in particular that relating to verification, inspection and audit missions, equipment and training for Commission officials, the organisation of or partic-ipation in meetings, including the exchange of information and best practices between MS, studies, IT services and suppliers, and the charter or purchase by the Commission of inspection means as specified in Titles IX and X of Regulation (EC) No 1224/2009;

d) international training programmes for personnel responsible for monitoring, control and surveillance of fisheries activities;

e) initiatives, including seminars and media tools, for standardising the interpretation of regulations and associated controls in the Union.

This Fund can support up to 90% of the total operating costs of control activities.

1.3. European Union Fisheries Control Regulation

The Fisheries Control Regulation establishes the so-called “Community control system”, which now must be called “European system of control”. The success of the CFP involves implementing an effective system of control. Therefore, the measures provided in the Fisheries Control Regulation “seek to establish a Community system for control, inspection, and enforcement with a global and integrated approach in accordance with the principle of proportionality, so as to ensure compliance with all the rules of the common fisheries policy in order to provide for the sustainable exploitation of living aquatic resources by covering all aspects of this policy65”.

The control policy seeks to ensure that the rules of the CFP are obeyed and requires compliance with them when necessary. Overall, it aims to ensure:

65 Paragraph 2, Preamble of the Fisheries Control Regulation.


� the catch of fish solely in the authorized quantities and the availability of data relating to fisheries management;

� the timely performance of the respective roles of MS and the EC;

� the even implementation of the rules to all fisheries, with harmonized sanctions through-out the EU;

� the traceability along the entire supply chain, “from sea to plate”.

Regarding the above, the adoption of said measures falls under the competence of the bodies of the EU, while MS are primarily responsible for their implementation and to impose sanctions in cas-es of violation within their jurisdiction.

The scope of this Regulation covers all activities regulated by the CFP that66:

a) are carried out on the territory of MS or in EU waters, or

b) are carried out by EU fishing vessels, or

c) without prejudice to the primary responsibility of the flag Member State, by nationals of MS.

In this control system a diversity of stakeholders are involved. Thus, the FFCR has improved coop-eration and coordination among them: the MS, the EC and the European Fisheries Control Agency (EFCA) to promote compliance with the rules of the CFP. Other agents such as operators67 and captains of fishing vessels are also involved.

� The EC is responsible for adopting measures to implement the Regulation as well as emergency measures and to carry out inspections without previous notice. It is also empowered to close a fishery when the quota or TAC of a Member State are exhausted, and to deduct quotas and effort allocations to ensure full compliance with the limitation of fishing opportunities. The EC shall ensure that MS fulfill their obligations in terms of equity and efficiency. It periodically prepares an assessment report, intended for the Parliament and the Council regarding the actions undertaken by MS in relation to the implementation of the CFP rules.

� The EFCA supports the harmonised implementation of the control system of the CFP, ensures the organization of operational cooperation, assists the Member States, and enables to create emergency units where a serious risk to the CFP is foreseen. In addi-tion it carries out joint deployment plans68, and cooperates in the implementation of the integrated maritime policy of the EU.

� MS are responsible for monitoring the activities included in the scope of the CFP which are carried out by natural and legal persons in its territory and in the waters under its sovereignty or jurisdiction. In particular fishing activities, transhipments, transfer of fish to cages (including fattening cages) or aquaculture installations including fattening,

66 Art.2, Fisheries Control Regulation.67 Article 4.19 Ibid. An operator is defined as a “natural or legal person who operates or holds any undertaking carrying out any of the activities related to any stage of production, processing, marketing, distribution and retail chains of fisheries and aquaculture products”.68 In accordance with article 2.c) of Council Regulation (EC) No 768/2005 of 26 April 2005, a ‘joint deployment plan’ is defined as a plan setting out operational arrangements for the deployment of available means of control and inspection.


landing, import, transport, processing, marketing and storage of fishery products and aquaculture.

� Agents relating to the fishing activities, from catching to marketing including transpor-tation and handling, must comply with the provisions of national law at every stage of production.

It is important to highlight that, under this regulation, controls are now carried out in all the links of the chain. Thus, fishing vessels may not leave port without a fishing license. For each shipment of fish, information must be provided proving the fish were caught legally. This system applies to all fishing activities in the waters of the Union and to all fishing vessels and citizens of the Union, regardless of where they operate. It also applies to recreational fishing of certain stocks of sensitive fish and aquaculture if these are covered by European standards; for example, eels or certain types of recreational fishing of bluefin tuna.

Similarly, modern technologies applicable to monitoring and control are an important tool of control, together with traditional inspections.

Since the Fisheries Control Regulation was elaborated to integrate control regulations in a single regulatory instrument, its text is broader than the previous regulation69. This Regulation was cre-ated with a clear intention to simplify the existing regulations. However, taking into consideration the several regulatory instruments that it integrated, as well as its objectives, it is a complex and fundamental element of the CFP.

How is the Fisheries Control Regulation structured? After an extensive preamble, general provisions and principles, there are specific sections which are dedicated to particular issues of fisheries control:

� Title III provides the general conditions for access to waters and resources. The rules regarding fishing licenses and authorizations are found here. Additionally, this title regu-lates other control instruments: marking of fishing gear, VMS, VDS, and AIS.

� Title IV specifically sets out the conditions for the control of fisheries. Chapter I focuses on the use of fishing opportunities. It prohibits transhipment operations at sea and pro-vides rules for the elaboration and completion of relevant documents such as fishing logbooks and transhipment and landing declarations. The Fisheries Control Regulation requires MS to ensure the control of fishing effort and a mechanism for this is the record-ing of catches and fishing effort. In the event that quotas or fishing effort are exhausted, the closure of fisheries is required either by the Member State or by the EC. Chapter II regulates the control of fleet management. It requires MS to control their fishing capacity and to verify and control the engine power of their vessels by means of certifications and verifications, both through data checks and physical inspections. Chapter III regulates the control of multiannual plans, by for example designating port for the transshipment or landing of certain species, by requiring the separate stowage of demersal catches sub-ject to multiannual plans or by regulating the national control action programs. Chapter IV regulates the control of technical measures as well as the control of fishing restricted

69 For example, previously the general regulation of control was separated from the electronic control measures, The latter were regulat-ed in Regulation No 1966/2006 of 21 December 2006 on electronic recording and reporting of fishing activities and on means of remote sensing). This matter is now included in the Fisheries Control Regulation.


areas. Finally, Chapter V regulates the control of recreational fishing, by prohibiting the marketing of those catches, among others.

� Title V regulates the control of marketing, including the rules on traceability, weighing, sales notes, take-over declarations and transport documents. The control of producer organizations and price and intervention arrangements are also regulated in this title.

� Title VI regulates surveillance and sets out the rules for control observers.

� Title VII regulates inspection and proceedings, establishing rules for conducting inspec-tions and elaborating inspection reports as well as setting out the procedures to be carried out in the event of infringement.

� Title VIII regulates enforcement, establishing the rules for the imposition of sanctions and points, in addition to regulating the national register on infringements.

� Title IX regulates control programmes.

� Title X regulates evaluation and control by the EC.

� Title XI provides the measures to ensure compliance by MS with the CFP objectives (financial measures, closure of fisheries, deduction of quotas and fishing effort and emer-gency measures).

� The Title XII regulates data and information. Access to data is an important issue for effective control70.

� The Title XIII regulates implementation.

� In the end, as usual, rules relating to amendments and repeals (which make up Title XIV), final provisions (Title XV), and annexes (Annex I - Specific inspection benchmarks for multiannual plans, Annex II - Correlation table) are provided.

It is important to highlight that the Fisheries Control Regulation provides for the adoption of detailed rules and measures to implement certain provisions. In accordance with the TFEU, where uniform conditions for implementing legally binding Union acts are needed, the competent authority will be the EC71. For this purpose, the Commission Implementing Regulation (EU) No. 404/2011 of April 8, 2011, laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy72 (Implementing Regulation) was adopted.

Currently, the EC is conducting an assessment of the impact of the Fisheries Control Regulation on the CFP control as required by Article 118.3 of the Fisheries Control Regulation. This assessment is planned in the work program of the EC for 201573. The EC intends to submit this assessment report to the European Parliament (EP) and the Council based on the reporting obligations of the MS74 and an external review to be carried out in the first quarter of 2016.

70 Hinz H, Murray L.G., Lambert G.I., Hiddink J.G., Kaiser M.J.(2013) Confidentiality over fishing effort data threatens science and man-agement progress, Fish and Fisheries, Vol. 14(1), pp. 110-117.71 Art. 291.2, TFEU.72 OJ L 112, of 30.04.2011.73 Available online at: http://ec.europa.eu/atwork/pdf/cwp_2015_en.pdf.74 According to Art. 118.1 of the Fisheries Control Regulation, MS shall transmit a report to the EC on the application of this Regulation every five years.

http://ec.europa.eu/atwork/pdf/cwp_2015_en.pdf


It should be noted that, at the time of preparing this document, a new Regulation modifying the Fisheries Control Regulation has been approved: Regulation (EU) 2015/812. In addition, there is a proposal pending for another Regulation which will also modify the Fisheries Control Regulation:

Regulation of the European Parliament and of the Council amending Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, COM (2013) 09 final. The EP’s first reading of this proposal took place on 5 Febru-ary 2014.

2. Institutional Framework for Enforcement and Control of the Common Fisheries Policy

To analyze the institutional framework, it is necessary to analyze the distribution of competences in the field of fisheries beforehand.

2.1. The competences of the European Union and Member States

The EU Treaties provide that the EU must act in accordance with the limits of the competences that have been conferred to it by the MS. Thus, the categories of competences of the EU are: exclusive, shared and supportive.

In the field of the CFP, following the entry into force of the Lisbon Treaty, most of the legislative power of the EU is now subject to the so-called ordinary legislative procedure. Thus, the EC and the EP must agree on the legislation which will be adopted75. However, the EP does not participate in the decision-making when adopting measures relating to the fixing of prices, levies, aid and quantita-tive limitations, as well as in the fixing and allocation of the fishing opportunities76.

In accordance with the TFEU, the EU has exclusive competence in the field of conservation of marine biological resources within the CFP77. This means that only the EU can legislate in this area and MS can only act when the EU rules authorize them to do so78. Although the TFEU does not define “marine biological resources”, the CFP Regulation defines them as “marine aquatic species live, available and accessible living marine aquatic species, including anadromous and catadromous species during their marine life”79. The species to which this definition applies include fish, sharks, and creatures such as octopuses, crustaceans and mollusks. However, cetaceans, including dol-phins and whales are considered as by-catch by the CFP. The EU legislation on cetaceans relies on the environmental competences of the EU. In some circumstances, including those regarding fisheries matters covered by the CFP, the EU has exclusive competence to sign international agree-ments with third countries which are not members of the EU80. In order to do so, the EC negotiates

75 Art. 43.2, TFEU.76 Art. 43.3, Ibid.77 Art. 3.d), Ibid.78 Article 2.1. Ibid, provides the following with regards to exclusive competences: “When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts”.79 Art. 4.2, CFP Regulation.80 Art. 3.2, TFEU.


with third countries on behalf of the EC on the access to EU waters by vessels from third countries and on access to fishing grounds of third countries by EU vessels. In addition, the EU is also part of the majority of the regional fisheries management organizations (RFMO) that regulate fishing in the high seas.

The EU also has exclusive competence to sign agreements with third countries on international trade in fish products81. Such trade is subject to the rules of the World Trade Organization (WTO).

In addition, the EU has shared competence with MS in the field of fishing, obviously excluding the conservation of marine biological resources82. This means that both the EU and MS can legislate on this subject, which includes the aquaculture and fishing in fresh water. However, if the EU has adopted rules, MS can only act only in accordance with them83.

The EU policy on aquaculture and fisheries management in fresh water, including the stages of the life cycle of the freshwater fish, are subject to shared competence because they are not related to the conservation of biological resources. The requirements of the EU affect these types of fisheries through the environmental legislation of protection of the marine environment and water or through the legislation of the Single Market of fisheries products.

Under EU law, MS hold the capacity to adopt legislation on fisheries matters in their own territories in relation to a number of limited topics that do not fall under the legislation of the EU or on issues in which EU legislation authorizes States members to act. Thus, for example, MS have some powers to implement their own measures of fisheries management. In some cases, they may decide how to achieve the objectives of the CFP or implement measures that are not provided for within the framework of the CFP.

2.2. The Distribution of Fishing Competences in Spain

The Spanish Constitution provides in Article 149.1.19, that the State has exclusive jurisdiction in the field of “maritime fisheries”, without prejudice to the jurisdiction that is attributed to AA.CC in the “management of the fisheries sector”. This article must be interpreted in relation to article 148.1.11. Thus, the State has exclusive jurisdiction on fisheries matters in external waters, (the territorial sea, the EEZ and international waters). The AA.CC have exclusive jurisdiction on fisheries matters in internal waters as well as in aquaculture and shellfish-gathering.

According to several Constitutional Court judgments (STC)84, within the matter of fisheries, there are two different areas: maritime fisheries and the management of the fisheries sector. “Maritime fish-eries” refers to the extractive activity and the protection of the resource. In particular, it includes85:

� The regulations concerning resources and areas where they can be fished (seabeds, fishing grounds, distances, quotas).

� Periods in which it is possible to fish (closures, hours).

81 Art. 3.1.e), Ibid.82 Art. 4.2.d), Ibid.83 Article 2.2 Ibid, provides the following with regards to shared competences: 2. “When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States again shall exercise their competence to the extent that the Union has decided to cease exercising its competence”.84 For example, STC 44/1992, 2 April (RTC 1992, 44); 57/1992, 9 April (RTC 1992, 57).85 STC 166/2013, FD.3.


� The way and means of carrying out extraction activities in the sea (fishing gear, methods of fishing).

� The system of protection, conservation and enhancement of fishery resources.

On the other hand, “Management of the fisheries sector” incorporates the issues related to the economic and productive sectors of fisheries which are not directly related to the extractive activity (professionals, organizational structure and conditions, official records, the fleet and fish markets, among others).

Based on this distinction, the State can intervene in fisheries matters in two ways: it can have exclu-sive jurisdiction or it can be limited to the development of basic rules. With regards to the exclusive jurisdiction, maritime fisheries is determined by spatial criterion based on the division between internal waters, and external waters. With regards to the management of the fisheries sector, the State has the jurisdiction to establish the legal bases. Thus, Law 3/2001 of 26 march of State Mari-time Fisheries (SMFL)86 has among its objectives87:

a) To regulate maritime fisheries, over which the State has exclusive jurisdiction, pursuant to article 149.1.19 of the Spanish Constitution.

b) To establish the basic rules of management of the fisheries sector, in accordance with article 149.1.19 of the Spanish Constitution.

On the other hand, the AA.CC with coastlines have also assumed, competences in fisheries matters in their Statutes of Autonomy, Firstly, they hold exclusive jurisdiction over fishing in internal waters, aquaculture and shellfish gathering. These last two activities remain outside the spatial delimita-tion of internal/external waters. Precisely, the STC No. 103/1989, of 8 June, reaffirms the exclusive jurisdiction of AA.CC over shellfish-gathering and aquaculture, even when it is carried out in the territorial sea, which is under the definition of “external waters” (Article 132.2 of the Spanish Consti-tution). Moreover, the AA.CC are also competent in the development and implementation of basic national rules in the management of the fisheries sector.

Table 1: DISTRIBUTION OF COMPETENCES IN FISHERIES MATTERS

FisheriesCompetences provided by the TFEU and Article 149.1.19 of the Spanish Constitution developed by the State Mari-

time Fisheries Law and regional fisheries laws

EU

The CFP regulates the conservation of marine biological resources, the man-agement of fisheries and the fleets that exploit these resources, fresh water and aquaculture biological resources and the processing and marketing of fisheries and aquaculture products, where such activities take place in the territory of MS or EU waters, or by nationals of MS, without prejudice to the primary responsibility of the flag Member State.

All EU regulations in this matter are directly applicable in Spain.

86 BOE No. 75, of 28.03.2001.87 Art. 1, SMFL.


Continuation

State (Spanish Ministry of

Agriculture, Food and Environment -

MAGRAMA)

Exclusive jurisdiction over the matters of maritime fisheries in external waters and over the development of basic rules on the management of the fishing sector.

Autonomous Communities (Competent

authorities in fisheries matters)

Exclusive jurisdiction over fishing in internal waters, shellfish and aquaculture and the development and implementation of basic national rules on the man-agement of the fishing sector.


An analysis of the main institutions responsible for enforcement and control of the CFP can be found below.

2.3. Main institutions responsible for fisheries control

2.3.1. The european commission

The Fisheries Control Regulation increased the responsibilities of the EC in the field of fisheries control, allowing it to take effective corrective measures88. To do this, it increased its management capability and its ability to intervene proportionately to the degree of non-compliance by MS. Addi-tionally, it empowered the EC to carry out unannounced and independent inspections to verify the control operations carried out by MS.

DG MARE, under the Commission for Environment, Maritime Affairs and Fisheries, has a specific unit in charge of the fisheries control policy under the Policy Development and Coordination Unit.

The EC controls and evaluates the implementation of the CFP by MS by examining the information and related documents as well as by conducting verifications, autonomous inspections and audits. It also facilitates the coordination and cooperation between MS.

The EC carries out verifications concerning89:

a) the implementation and application of the rules of the common fisheries policy by MS and their competent authorities;

b) the implementation and application of the rules of the common fisheries policy in the waters of a third country in accordance with an international agreement with that country;

c) the conformity of national administrative practices and inspection and surveillance activ-ities with the rules of the common fisheries policy;

88 The ECA Special Report No 7/2007 indicates that the effectiveness of the means of applying pressure by the EC to Member States was only effective exceptionally. Thus, it indicated that the EC had two choices: “(…) recourse to the Court of Justice and the general procedure for failure to fulfil an obligation, or it may use one of the procedures specific to the CFP. Each of these procedures, however, has features that make it difficult to use and effective only exceptionally.” (Paragraph 95, Page 18).89 Art.96.1, Fisheries Control Regulation.


d) the existence of the required documents and their compatibility with the applicable rules;

e) the circumstances in which control activities are carried out by MS;

f) the detection and proceedings of infringements;

g) the cooperation between MS.

The verifications are carried out by agents of the EC. They can take place on fishing vessels, as well as in business establishments and other bodies which carry out activities related to the CFP90. The operations of verification can be carried out following a verification program developed jointly with the Member State, although the EC can also carry out these operations without prior notice.

The EC performs autonomous inspections91 if it has reason to believe that there have been irreg-ularities occur in the implementation of the rules of the CFP. In this case, it conducts inspections on its own initiative and without the presence of agents of the Member State concerned.

Additionally, the EC can conduct audits of MS control systems92, and can evaluate:

a) the quota and the effort management system;

b) data validation systems, including systems of cross-checks of VMS, catch, effort and marketing data and data related to the Community fishing fleet register as well as the verification of licences and fishing authorisations;

c) the administrative organisation, including the adequacy of the available staff and the available means, the training of staff, the delimitation of functions of all authorities involved in control as well as the mechanisms in place to coordinate the work and the joint evalu-ation of the results of those authorities;

d) the operational systems, including procedures for control of designated ports;

e) national control action programmes including the establishment of inspection levels and their implementation;

f) the national system of sanctions, including the adequacy of the sanctions imposed, dura-tion of proceedings, economic benefits forfeited by offenders and the deterrent nature of such system of sanctions.

After the verifications, inspections and audits, the EC must elaborate a report on its findings and later on conduct a follow up. Thus, if the EC considers that there have been irregularities in the implementation of the CFP or that the provisions and control methods are not effective, they inform the Member State so that it conducts an administrative investigation in which EC agents can par-ticipate. If the investigation does not lead to the removal of the irregularities or if the EC detects deficiencies in the control system, the EC will elaborate an action plan which the Member State

90 Art. 98, Ibid.91 Art. 99, Ibid.92 Art. 100, Ibid.


must comply with. The EC has adopted a series of action plans in this regard for Malta, Spain, Italy, Latvia and France93.

2.3.2. european fisheries conTrol agency

Council Regulation (EC) No. 768/2005 of 26 April 200594, created the Community Fisheries Control Agency, today the EFCA. Its objective is to organize the operational coordination of fisheries control and inspection activities by the Member States and to assist them to cooperate so as to comply with the rules of the CFP in order to ensure its effective and uniform application95. The EFCA’s head office is in Vigo (Spain).

The mission of the EFCA is96:

a) to coordinate control and inspection by MS relating to the control and inspection obliga-tions of the EU;

b) to coordinate the deployment of the national means of control and inspection pooled by MS concerned;

c) to assist MS in reporting information on fishing activities and control and inspection activ-ities to the EC and third parties;

d) in the field of its competences, to assist MS to fulfill their tasks and obligations under the rules of the CFP;

e) to assist MS and the EC in harmonizing the application of the CFP throughout the EU;

f) to contribute to the work of MS and the EC on research into and development of control and inspection techniques;

g) to contribute to the coordination of inspector training and the exchange of experiences between MS;

h) to coordinate the operations to combat IUU in accordance with EU rules;

i) to provide assistance for the uniform implementation of the control system of the CFP, including in particular:

� the organization of operational coordination of the control activities of MS for the implementation of specific control and inspection programs, control programs of IUU and international programs of control and inspection,

� inspections, as required, to fulfill its objective.

The EFCA also performs tasks derived from international obligations of the EU in the fields of control and inspection97 as well as tasks on matters of operational coordination developing joint deploy-

93 Source: http://europa.eu/rapid/press-release_MEMO-14-404_en.htm.94 OJ L 128, 21.5.2005. The European Union Fisheries Control Regulation modified this Regulation.95 Art. 1, EFCA Regulation.96 Art. 3, Ibid.97 Art. 4, Ibid.

http://europa.eu/rapid/press-release_MEMO-14-404_en.htm


ment plans and organizing the operational coordination of the control and inspection of Member State activities98.

It also provides assistance to the EC and MS by providing, among other things, training of fisheries inspectors99.

Since the entry into force of the new CFP, the EFCA has focused on the adoption of new measures to improve the culture of compliance and equal conditions in the whole fisheries sector. Among the tools that will allow progress in the achievement of this objective, are the following:

� Regional joint deployment plans: an instrument through which the EFCA organizes the deployment of national human resources and materials of control and inspection put in common by MS. These plans promote a cost-effective and coordinated use of the human and material resources of MS; the EFCA has begun to expand their scope to give them a regional and multi-species dimension: North East Atlantic Fisheries Commis-sion (NEAFC), Northwest Atlantic Fisheries Organization (NAFO) and pelagic species in Western waters). The EFCA provides an extension to regional, mixed and permanent fisheries. Joint deployment plans are adopted when the concerned fishery is subject to a recovery plan or a multiannual management plan and, in addition, the EC, in consul-tation with concerned MS, has adopted a program of specific inspection and control. The EFCA is responsible for coordinating the implementation of the specific control and inspection programs established through joint deployment plans100. Currently five joint deployment plans are being implemented: the North Sea, Baltic Sea, Western waters, Mediterranean and NAFO-NEAFC.

� Control strategies of discard bans: These are preferably applicable through the region-al joint deployment plans, so that strategic decisions are adopted by the steering groups. The EFCA will contribute, in turn, to the fulfillment of an effective monitoring. Depending on the characteristics of the fishery, different methods will be implemented and the avail-able tools will be tested and used. It is an essential element to accompany the new CFP.

� Focus groups of evaluation of compliance and profitability: the creation of two the-matic groups to assess the level of compliance and profitability of control operations.

� Basic training: the existence of a core-training plan for fisheries inspectors of MS to achieve uniform implementation of the CFP.

� Computer Systems of the EFCA: designed to complement the different national sys-tems. They are unique systems developed by the EFCA and made available to MS to support the control of the CFP at the EU level. These electronic tools enable continuous and real-time exchange of data and knowledge, thus limiting the potential for manipula-tion of information and helping to reduce infringements.

98 Art. 5, Ibid.99 Art. 7, Ibid.100 Art. 9.1, Ibid. Arts. 10 to 14 of this Regulation set out the provisions on the content of the plans, the procedure for their adoption and on their implementation and evaluation.


2.3.3. The general secreTariaT of fisheries

In accordance with RD 401/2012, of 17 February, which develops the basic organizational structure of the MAGRAMA, the General Secretariat of Fisheries (GSF), under the direction of the Minister of Agriculture, Food and Environment, exercises the following competences101:

� Planning and enforcement of the policy of maritime fisheries in external waters and aqua-culture,

� Basic management of the fisheries sector,

� Bases of the marketing and processing of fisheries products,

� Participation in the planning of research policies on fisheries matters,

� Institutional relations with professional organizations and other representative entities of interest in the fisheries sector, without prejudice to the competences of the Subsecretar-iat of the department,

� Fisheries agreements of the EU and third countries,

� Those arising from the participation of Spain, by itself or within the delegation of the EU, in international fisheries organizations and the international cooperation in fisheries and aquaculture matters in coordination with the Ministry of Foreign Affairs and Cooperation,

� The determination of the Spanish position before the EU on these matters.

The bodies which are dependent on this are the following:

a) The General Directorate of Fisheries and Aquaculture.

b) The General Directorate of Fisheries Management.

The General Directorate of Fisheries Management is responsible for the comprehensive control of fishing activities throughout its chain of production, import, and marketing, so that the GSF meets the obligations derived from the CFP102 and based on the analysis of identified risks. The General Sub-directorate of Control and Inspection (GSCI)103 is specifically in charge of this. Its fields of activity include104:

Control of fisheries activity � Issuance of licenses, authorisations and fishing permits.

� Collection, processing, analysis and exploitation of all information regarding fisheries activity, from different sources of information.

� Monitoring and continuous follow-up of fishing activity by the satellite tracking devices on board the vessels.

101 Art. 15.1, RD 401/2012.102 Art. 17.1.s), Ibid.103 Art. 17.2.b), Ibid.104 Source: www.magrama.gob.es.

http://www.magrama.gob.es


Fisheries Inspection � Planning and development of fisheries inspection activities including coordination of

peripheral inspection services.

� Coordination of fisheries inspection activities with the AA.CC and other bodies of the General Administration of the State, such as the Navy and the Civil Guard.

Import controls and combating illegal fishing � Control of imports of fishery products in Spain, under the EU regulation to combat illegal

fishing.

� Liaison office with the EU with regards to the messages of Mutual Assistance.

The Fisheries Control Regulation requires MS to create FMC to carry out the monitoring of fisher-ies activities and fishing effort, and ensure their functioning105. The FMC of each Member State must monitor fishing vessels flying its flag, whatever the waters in which they are operating or the port they are in, as well as of fishing vessels flying the flag of other MS and fishing vessels of third countries to which a VMS applies operating in waters under the sovereignty or jurisdiction of that particular Member State. In addition, the Fisheries Control Regulation also requires the Member State to appoint the competent authorities responsible for the FMC and ensure they are have the proper staffing and technical resources106. In Spain the FMC is located in Madrid in the premises of the SGCI of the GSF which functions 24 hours a day and has been operational since 1999107. The FMC is responsible for receiving, analyzing and storing all information provided by the blue box-es108 of Spanish vessels. Thus the control authorities may verify whether the ship:

� Is operating in an area where no fishing activities are allowed;

� Has the necessary fishing licenses and to fish in the area or,

� Has gone to port without declaring its landings.

It also enables the FMCs of other countries to see the positions of Spanish vessels in their waters, and likewise, receives the positions of foreign vessels which are in Spanish waters.

In addition, there is a Communications Center in the MAGRAMA which is in charge of the electronic exchange of data of fishing activities (fishing logbook, transhipment declaration and landing decla-ration), sales notes and transport documents.

The GSF is therefore the single authority responsible for coordinating the control activities of all control authorities in Spain, in accordance with the provisions of Article 5.5 of the Fisheries Control Regulation.

It should be noted that the Spanish Navy of the Minister of Defense and the Directorate General of the Civil Guard of the Ministry of Home affairs also conduct inspection and surveillance work of maritime fishery.

105 Art. 9.7, Fisheries Control Regulation.106 Ibid.107 Source: http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/default.aspx.108 See Part A, Section 1.4 of this report.

http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/default.aspx


2.3.4. auTonomous communiTies

As the Spanish Constitution foresees there are different competent authorities in fisheries matters. In particular, AA.CC carry out inspection tasks in the area of fisheries management and fishing in internal waters. In addition, in the area of maritime fishery, the AA.CC of Andalusia, Catalonia and Galicia collaborate in the tasks of surveillance and inspection through cooperation agreements with the MAGRAMA109.

Table 2: COMPETENT BODIES OF THE AUTONOMOUS COMMUNITIES IN FISHERIES CONTROL110 111 112 113 114

Autonomous Community

Competent bodies

Cataluña

The Department of Agriculture, Livestock, Fisheries, Food and Natural Environment is the competent authority to exercise control over the activities of fisheries and aquaculture. Therefore, it ensures compliance with the control regulations by car-rying out inspections, adopting interim measures and imposing the appropriate sanctions110.

The Sub-Directorate General of Fisheries is responsible for coordinating actions in the areas of control and inspection of all fisheries activities within the competence of the General Directorate and to propose the General Plan of control and inspec-tion111.The department of Control and Inspection of the Marine Resources Service, a body under the Sub-directorate General of Fisheries has the following responsi-bilities related to control112:

b) Coordinate, support and monitor the actions performed by persons authorized for the control and inspection on fisheries and maritime affairs aimed at ensuring compliance with current regulations.

c) Elaborate the reports, programs and plans of control, acts and statistics of the actions carried out on control and inspection of fisheries, maritime affairs and water sports.

e) To draft and monitor projects to improve the activities of control and inspection of fisheries and maritime affairs.

Comunidad Valenciana

The Directorate General of Agriculture, Livestock and Fisheries113, under the Region-al Ministry of Agriculture, Environment, Climate Change and Rural Development has a specific Sub-directorate General for Fisheries divided into two departments: Planning of the Fisheries Sector and Conservation of Fisheries Resources. Both have relevant competences in the implementation of the Fisheries Control Regula-tion. The first one concerning the marketing and processing of fisheries products in general and the first sale at an auction in particular and the second one on inspec-tion, monitoring, control and sanction of activities related to fisheries resources114.

109 EMFF Spanish Operating Plan period 2014-2020 version 1.1, Chapter 12.110 Art. 117, Law 2/2010 of 18 February, of fisheries and maritime action (OJ-GC 5580 of 04.03.2010).111 Article 50.1 e) Decree 270/2013, of 23 December, restructuring the Department of Agriculture, Livestock, Fisheries, Food and the Natural Environment (OJ-GC 6529 of 27.12.2013).112 Art. 52.2.2, Ibid.113 Decree 103/2015, of 7 July, of the Council, by which establishes the basic organizational structure of the Presidency and the region-al ministries of the Generalitat (OJ-CV 7566, of 08.08.2015).114 Art. 9.4, Decree 158/2015, of 18 September, of the Consell, which approves the organic and functional regulation of the Regional Ministry of Agriculture, Environment, Climate Change and Rural Development is adopted (OJ-CV 7620, of 22.09.2015).


115 116 117 118 119 120 121 122

Continuation


Competent bodies

Canarias

The control of the fisheries activities and aquaculture corresponds to the Regional Ministry of Agriculture, Livestock, Fisheries and Water, and is carried out by the personnel of the Fisheries Inspection Agents Corps115. The Service of Fisheries Development is responsible for, among other tasks, directing and coordinating matters related to the control, landing, first sale and labeling of fisheries products116.

Galicia

The Regional Ministry of the Countryside and Sea, and the Galician Agricultur-al Guarantee Fund is the competent body to regulate fisheries management in inland waters, shell fishing and aquaculture117. To perform control tasks, the General Sub-directorate of Fisheries and Fisheries Markets has an admin-istrative unit (the Service of Fisheries) which is responsible for planning, coordination, implementation and monitoring of the measures and actions in vocational and recreational fishing as well as monitoring of fishing activity118.

Andalucía

In the Ministry of Agriculture, Fisheries and Rural Development is found the General Directorate of Fisheries and Aquaculture responsible for, among oth-er functions, the management and coordination of inspection and monitoring of aquaculture, shellfish and fishing in the waters indicated, inspection of catches landed at auction and inspection resulting from the competences of the fisheries sector management and, in particular, the approval of Inspec-tion Plans and instructions to carry them out, and the adoption of specific actions119.

It also assigned the general regulation of fisheries marketing and in particular the first sale at an auction, as well as determining agents authorized to exer-cise the activity120.

The General Fisheries Branch depends on the General Directorate to have the services of Management of the Fisheries and Aquatic Resources, Fish-eries and Aquaculture Structures, Marketing and Transformation of Fisheries and Aquaculture, and Fisheries and Aquaculture Inspection.

MurciaIn the Ministry of Water, Agriculture and Environment121, is the General Directorate of Agriculture, Livestock, Fisheries and Aquaculture whose com-petencies include maritime inland fisheries, aquaculture and shell fishing122.

115 Art. 62, Law 17/2003, 10 April, of Canarian Fisheries (BOIC No. 77 of 23.04.2003).116 Source: http://www.gobiernodecanarias.org/agricultura/otros/direcciones/vice_pesca.html.117 Art. 1 Decree 132/2014, of October 2, whereby the organic structure of this Department (DOG 198 of 16.10.2014, p. 44385) is approved.118 Art.15.2.2.1, Ibid.119 Art. 9.b) Decree 215/2015 of 14 July, the organizational structure of the Ministry of Agriculture, Fisheries and Rural Development (BOJA no. 136 of 07.15.2015) is established.120 Art. 9.e), Ibid.121 Decree No 26/2011 of 25 February, the organizational structure of the Ministry of Agriculture and Rural Water (BORM no. 51 of 03.03.2011) is established.122 Art. 7 Decree No 106/2015 of 10 July, of the Governing Council, by which the Governing Bodies of the Ministry of Water, Agriculture and Environment (BORM no. 158 of 07.11.2015) are established.

http://www.gobiernodecanarias.org/agricultura/otros/direcciones/vice_pesca.html


123 124 125 126 127 128 129 130

Continuation


Competent bodies

Balearic Islands

The Ministry of Environment, Agriculture and Fisheries123 for the General Directorate of Fisheries and the Marine Environment exercises powers in the following areas: fisheries management; marine resources; fishermen’s asso-ciations; nautical-fishing lessons; sea fishing in inland waters of the Balearic Islands; marine aquaculture, shell fishing and professional diving; initiation and resolution of disciplinary proceedings in matters under its own jurisdic-tion124. The Service of Fisheries Management and Marine Resources depends on this General Directorate.

Asturias

Under the General Directorate of Maritime Fisheries is the Department of Rural Development and Natural Resources125, which is responsible for the management and development of skills in the authorization and protection of fisheries resources, shellfish and marine fish farming, inspection and sur-veillance in the area of marketing and processing126. Under this General Directorate is the Fisheries Management Service in charge of, among other functions, inspection and surveillance of extraction, transportation, marketing and consumption centers127 and the Service of Fisheries Structures in charge of, among other functions, improving marketing128.

País Vasco

Their competence in fisheries matters corresponds to the Department of Eco-nomic Development and Competitiveness129. Thus, it should take appropriate measures to protect and preserve, according to sustainable criteria, marine resources and the development of coastal communities. Specifically, it is the Directorate of Fisheries and Aquaculture who exercises the functions relating to the control of fishing activities.

Cantabria

The Ministry of Rural Environment, Fisheries and Food130 has within its struc-ture a General Directorate of Fisheries and Food responsible for overseeing activities on fisheries control and ensuring compliance with current regula-tions.


123 Decree 24/2015, of August 7, the president of the Balearic Islands, by which skills and basic organizational structure of the ministries of the Administration of the Autonomous Community of the Balearic Islands (BOIB are established. 120, of 08.08.2015).124 Art. 8.b), Ibid.125 Art. 9 Decree 6/2015 of 28 July, the President of the Principality of Asturias, of the restructuration of the Departments comprising the administration of the Autonomous Community (BOPA no. 175 of 29.07. 2015).126 Art. 21.1. Decree 69/2015, of 13 August, establishing the basic organizational structure of the Ministry of Rural Development and Natural Resources (BOPA no. 189 of 14.08.2015) is established.127 Art. 22, Ibid.128 Art. 23, Ibid.129 Decree 20/2012, of 15 December, the Basque President, creation, deletion and modification of the Departments of the Administra-tion of the Basque Country and determining functions and areas of operation thereof (BOPV no. 243, of 12.17.2013).130 Art. 3 Decree 3/2015, of July 10, reorganization of the Departments of the Administration of the Autonomous Community of Cantabria (BOC no. Extraordinary 56 of 10.7.2015).

55

As previously indicated in this document, the purpose of this analysis concerning the implementa-tion of the Fisheries Control Regulation in Spain is to examine the measures that have been adopted to ensure the efficiency and effectiveness of the CFP. This test will serve as a basis for opening the debate with key players in the sector, and later on, release measures with the aim to create a culture of compliance. This will ensure that we will find ourselves before a genuine rule of law in the field of fisheries.

We must remember that EU regulations are of general application, binding in their entirety and directly applicable in each MS131. However, many of the regulations implemented require the adop-tion by MS of specific measures, which can be taken either through the elaboration of rules or through the enforcement of an action. In fact, the TFEU requires MS to adopt all necessary meas-ures of national law for enforcing legally binding acts of the EU132.

The undertaken analysis on the implementation of the Fisheries Control Regulation in Spain has been based on a legal gap analysis, by examining the rules adopted by Spain, by searching through data, as well as by conducting interviews and surveys. It must be taken into account that some obligations are met through the enforcement of acts such as reaching specific agreements with other MS.

1. General conditions on Access to Waters and Resources

The Fisheries Control Regulation requires, for having access to waters and resources, fishing licenses as a general condition for accessing water and resources, and in certain cases, a fishing authorization. It is also required that fishing gear is marked in addition to having a vessel monitoring 131 Art. 288, TFEU. 132 Art. 291, Ibid.

C. THE IMPLEMENTATION OF THE FISHERIES CONTROL REGULATION IN SPAIN

CHAPTER 3 / THE IMPLEMENTATION OF THE FISHERIES CONTROL REGULATION IN SPAIN / Page 56

system (VMS) and an AIS, depending on the length of the vessel. Furthermore, in order to ensure compliance with the law, it recommends MS to use a vessel detection system in order to transfer the collected data by the VMS, AIS and the VDS.

1.1. The fishing license

Article 6 of the Fisheries Control Regulation requires holding a valid fishing license133 to use EU fishing vessels for commercial exploitation of living aquatic resources. It requires MS to ensure that the information contained in the fishing license is accurate and consistent with that contained in the European fishing fleet register. Furthermore, it also requires them to temporarily suspend the fishing license of those vessels subject to temporary immobilization or which has had its fishing authorization suspended in accordance with the provisions of Regulation (EC) No. 1005/2008 of September 292008, establishing a Community system created to prevent, deter and eliminate ille-gal, unreported, and unregulated fishing134 (IUU Regulation). Likewise, it requires MS to revoke the fishing licenses when an exit from the fleet supported by public aid is allowed (Art.22.5 of the CFPR) or concerning the withdrawal of fishing authorizations pursuant to the IUU Regulation.

Article 3 of the Implementing Regulation contains provisions regarding the granting and manage-ment of fishing licenses:

� They are valid for one EU fishing vessels only.

� They shall be issued, managed, and withdrawn by MS for their fishing vessels.

� They must contain as a minimum the information set out in Annex II, which includes data for fishing vessels, information about the holder of the license135 /ship-owner/ master of the vessel and characteristics concerning fishing capacity, and other national measures of application. Those licenses which were issued under Regulation (EC) No 1281/2005, of August 3 2005, on the management of fishing licenses and the minimal information to be contained therein, will be considered as valid if they contain136 the minimum informa-tion provided in Annex II.

� The validity of the licenses is always subject to compliance of their conditions.

It can be stated that Spain has adopted the necessary domestic legal measures to comply with the Fisheries Control Regulation requirements on fishing licenses.

Thus, the State Maritime Fisheries Law 3/2001 of 26 March (“Law 3/2001”) provides in its Article 23 concerning fishing authorizations the following:

1. All vessels engaged in the exercise of the professional maritime fishing in external waters shall carry on board an temporary administrative authorization issued by the Ministry of Ag-riculture, Fisheries and Food, so-called “fishing license” and count with number provided by the General Sanitary Register of Food.

133 Article 4.9 of the Control Regulation defines “fishing license” as an “official document entitling the holder, under national rules, to use a certain fishing capacity for commercial exploitation of living aquatic resources. It contains minimum requirements for the identifi-cation, technical characteristics and equipment of a Community fishing vessel”. Article 4.24 of the Regulation of the CFP defines “fishing capacity” as “the tonnage of a vessel expressed in GT (GrossTonnage) and its power in kW (kilowatts), as defined in Articles 4 and 5 of Regulation No 2930/86”. 134 OJ L 286, of 29.10.2008.135 Article 2.3 of the Implementing Regulation defines “holder of a fishing license” as “a natural or legal person that has been issued a fishing license as that to which it refers in Article 6 of the Control Regulation”.136 OJ L 203 of 04.08.2005. The implementing Regulation repealed this Regulation.


2. The fishing license, which is non-transferable, is an inherent document to the fishing vessel and shall at least collect the data of the owner, their technical characteristics, the fishing zone or ground, the modality of fishing and the duration of the same. The first license issued to a fishing vessel shall also contain data on the vessel decline provided for its construction and the port facility.

3. In the case of transference of the vessel´s ownership, the new owner shall inform about it to the Ministry of Agriculture, Fisheries and Food for the purpose of knowledge about the subro-gation in the use of the license.

4. The non-utilization of the fishing license without a justified reason during its validity period shall be considered a waiver of the owner to access the vessel into the fishery and the ground for which it was authorized, leading to its final decline in the specific corresponding census attending to the modalities, fishing grounds or fisheries (…).

We understand that the requirement to ensure that the information contained in the fishing license is accurate and consistent with that contained in the European fishing fleet register is guaranteed through the provisions concerning the General Register of the Fishing Fleet provided in Article 57 of Law 3/2001. Such register refers to fishing vessels operating in external waters, those operating simultaneously in external and internal waters contained in the Census of the Operational Fishing Fleet regulated in Article 22 and those vessels exclusively operating in internal waters. It is import-ant to note that, although such Registry and Census were already regulated in Law 3/2001, later on Law 33/2014, of 26 December, amending Law 3/2001, of 26 March, of State Maritime Fisheries137 introduced certain amendments to both. The functioning of the register is pending on the corre-sponding regulatory development.

The Census of Operational Fishing Fleet shall contain a relationship of the Spanish flagged ves-sels that are allowed to carry out the fishing activity in the waters subject to the scope of applica-tion of this title, that is, vessels operating in external waters and those simultaneously operating in external and internal waters, and its functioning will be developed in regulations. The Census shall contain all the parameters of vessels likely to have an impact on the fishing effort developed by the fleet, including the modalities, fisheries, and fishing grounds. Its content is part of the General Register of the Fishing Fleet which is created in Article 57.

Article 105 of Law 3/2001 foresees among the sanctions to be imposed for the commission of the infringements regulated therein the following:

“(...) h) suspension, withdrawal or non-renewal of authorizations, licenses or permits which may not exceed a period of three years in case of serious infringements or seven in the case of very serious infringements. It may not apply in the case of minor infringements. (...)

k) Temporary immobilization of the vessel which shall not exceed a period of six months for cases of minor infringements, a year in case of serious infringements or three in case of very serious infringements.”

These sanctions can be imposed primarily, likely to be cumulative where appropriate.

1.2. The fishing authorization

According to the Fisheries Control Regulation, a fishing authorization is issued in respect of a Euro-pean fishing vessel in addition to its fishing license, entitling it to carry out specific fishing activities during a specified period, in a given area or for a given fishery under specific conditions138. Article

137 BOE No. 313, of 27.12.2014.138 Art. 4.10, Fisheries Control Regulation.


7.1 of this Regulation requires EU fishing vessels which operate in EU waters to have a valid fishing authorization when the fisheries or fishing zones where the activities are authorized:

a) Are subject to a fishing effort regime;

b) Are subject to a multiannual plan;

c) Are part of a fishing restricted area;

d) Are subject to fishing for scientific purposes;

e) Are subject to other cases covered by European regulations.

This requirement is reflected in Article 25.1 of Law 3/2001which provides:

When the special characteristics of a fishery advise fishing effort limitations or specific measures for the conservation of fishery resources, the Ministry of Agriculture, Fisheries and Food may pro-vide that the exercise of the activity is subject to the granting of a special temporary fishing permit, supplementing the fishing license, which shall l be carried on board.

However, the Implementing Regulation requires an authorization to be valid for a EU fishing vessel139, whereas Article 25.2 of Law 3/2001allows the granting of permits for special fishing collectively in cases where there is a group of vessels. Therefore, this is not in line with the EU requirements. Nonetheless, this same Article states that: “The special fishing permit shall be necessary, in all cases, for the exercise of the fishing activity in waters outside the Spanish jurisdiction” (Art.25.2, last sentence). In this regard, Law 3/2001 is more restrictive than the Fisheries Control Regulation.

The minimum information to be contained in authorizations is set out in Annex III of the Implement-ing Regulation140, which refers to the identification of the vessel and the authorization conditions (basically concerning species, area, fishing gears and other conditions). This requirement is cor-rectly provided in Article 25.2 of Law 3/2001141.

Article 4.5 of the Implementing Regulation excludes from the obligation to have a fishing authori-zation those EU fishing vessels of less than 10 meters length overall which fish exclusively in the territorial waters of their flag Member State.

The same regulation requires MS to make available in the secure part of their official websites the list of their fishing vessels that have received fishing authorizations142. These official websites had to be operational no later than 1 January 2012143. However although it was not possible to identify at the time of this report the existence of this website in Spain, which has to contain one secure part and another part publicly accessible144, source from the MAGRAMA confirmed in July 2015 that they were finalizing the preparation of such website under the Action Plan adopted by the EC for Spain145.

139 Art. 4.1., Implementing Regulation. 140 Art. 4.2., Ibid. 141 “Such permit shall contain at least the data on vessel identification, validity period, area and type of fishing authorized species (...)”.142 Art. 5, Implementing Regulation. 143 Art. 114, Fisheries Control Regulation . See section 2.13.2 of this document.144 Arts, 114, 115 and 116, Ibid.145 See section C, point 2.3.1 of this document.


1.3. Marking and identification of fishing vessels and fishing gear

The Fisheries Control Regulation requires masters of fishing vessels to comply with the conditions and restrictions relating to the marking and identification of fishing vessels and their gears. The rules on marking and identification of fishing vessels and their gear are developed by Chapter III of Title II of the Implementing Regulation.

1.3.1. The marking and idenTificaTion of fishing vessels

Section 1 of that Chapter of the Implementing Regulation relates to the marking and identification of fishing vessels, and is developed by Articles 6 and 7, respectively.

Article 6 provides very specific requirements concerning:

� The location of the letter or letters of the port or district in which the vessel is registered, which can be painted or displayed.

� The height of the letters depending on the length of the ship.

� The possibility that MS demand to paint on the vessel the international radio call sign (IRCS).

� The contrasting colors shall be: white and black.

� The characteristics of the external registration letters and numbers painted or displayed shall not be: removable, effaced, altered, illegible, and must not be covered or con-cealed.

According to Article 15 of Order AAA/2794/2012 of 21 December, regulating fishing with fixed and minor gear in the Mediterranean external waters146 refers to that chapter of the Implementing Reg-ulation.

Articles 12 and 13.1.of the RD 1027/1989 of 28 July, which regulates the flagging, registration of vessels and maritime registry147, refers to the port of registry148.

Article 7 of the Implementing Regulation provides the documents to be carried on board EU fishing vessels, which must be under the guard of captains, and which must be presented for purposes of control and inspection to the agents asking for it:

1) In the case of EU vessels whose length overall exceeds 10 meters, documents issued by the competent authority of the MS where the vessels is registered including data relating to: name, letters corresponding to the port or maritime district where it is registered and the registration number, the IRCS in case it has the same name and addresses of the owner(s) and, where appropriate the charterer(s), the total length, propulsion engine power and the gross tonnage.

2) In the case of EU vessels with 17 meters length overall or more which have fish rooms,

146 BOE N. 312, of 28.12.2012.147 BOE N. 194, of 15.08.1989.148 This RD has been subject of clarification and amplification by: Circular 4/90: Clarification of RD 1027/89 and Circular 11/90: Enlarge-ment of the Circular 4/90 on flagging, ship registration and maritime registry.


they must keep on board drawings with accurate information on it, and certified by the competent authority of the flag MS.

3) If a vessel has chilled or refrigerated seawater tanks, it shall keep on board an up-to-date document indicating the calibration of the tank in cubic meters, in 10 centimeters inter-vals, certified by the competent authority of the flag MS.

Law 14/2014, of July 24, of Maritime Shipping149, requires vessels to carry on board a certificate of registration150, together with other documents. Article 79 of this Law specifically refers to the certif-icate of registration.

Considering that the requirements on the marking and identification of vessels have been devel-oped in great detail by the EC, they are directly applicable in our country. Thus, it is not necessary to adopt further development measures, and the masters on Spanish flagged fishing vessels must respect them.

1.3.2. marking and idenTificaTion of fishing gear and crafTs

Articles 8 to 17 of the Implementing Regulation develop in a comprehensive manner all require-ments concerning the marking of fishing gear and crafts.

Article 8 requires that crafts and fish aggregation devices151 are marked with external registration letters and numbers of the fishing vessel(s) which use them.

The rules concerning passive gear, beam trawls152, and labels apply to EU fishing vessels operat-ing in all EU waters153. The rules on the buoys, cords, fixing of end marker buoys and intermediary marker buoys apply in EU waters outside 12 nautical miles from the baseline of coastal MS154. To carry out fishing activities in EU waters, all identification and marking standards must be respect-ed155.

Table 3: RULES ON GEAR AND CRAFTS

Types of gear and crafts Standards

Beam TrawlsIt shall display the external registration letters and numbers of the respec-tive EU fishing vessel over the beams of the beam trawl. Otherwise, it is forbidden its carry on board (Arts. 9.3 and 10).

149 BOE No.180, of 25.07.2014.150 Article 78.1 of this Law, after listing all documents, ends by establishing “(…) notwithstanding the existing reservations and partic-ularities or those that could be established in accordance with regulations in relation to State vessels and other determined categories of vessels”.151 “Fish aggregating device: any equipment floating on the sea surface or anchored with the objective of attracting fish”, (Art.2.5, Implementing Regulation).152 “These are defined as “any towed trawl in which the mouth of the trawl is held open by a beam or similar device, irrespectively of whether they are supported or not when dragged along the seabed”, (Art. 2.7, Ibid).153 Arts. 9.1., 10, 11 y 12, Ibid. 154 Arts. 13 to 17, Ibid.155 Art. 9.2., Ibid.


Continuation

Types of gear and crafts

Standards

Passive Gear

It shall permanently display the external registration letters and numbers dis-played on the hull of the EU fishing vessel and the passive gear used for fishing (otherwise, transport is forbidden): � The networks: on a label attached to the upper first row, � Lines and long lines: on a label at the point of contact with the mooring

buoy, � Pots and traps: on a label attached to the ground rope, � Passive gear extending more than 1 nautical mile: on labels attached in

accordance with what established for the remaining passive gears (Art 9.3 and 11.2.).

LabelsIt shall be made of durable material, be securely fitted to the gear, are have at least 65 millimeters broad and 75 millimeters long. They shall not be remova-ble, effaced, altered, illegible, covered or concealed (Art.12).

Source: Implementing Regulation

Just Article 15 of Order AAA/2794/2012 of 21 December, which regulates fishing with fixed gear and minor gear in the Mediterranean external waters refers to such rules contained in the Imple-menting Regulation.

In the case of rules concerning buoys, cords, end marker buoys, including standards for its instal-lation as well as intermediary marker buoys, there are other regulatory instruments relating to them. The Implementing Regulation is very detailed in terms of rules on marking, size, and other specifi-cations of it.

Together with the reference to the Implementing Regulation made at Order Execution AAA/2794/2012, of December 21, in Article 10 of RD 1428/1997, of 15 September, which regulates fishing with minor gear in the Gulf of Cadiz156 there are also rules concerning buoys.

RD 410/2001, of April 20, which regulates fishing with fixed gear in the National Cantabric and North-east Fishing Ground157, contains in its Article 10 rules on navigational gear and crafts. It deserves attention the rule contained in that Article concerning the color of buoys, which allows them to be red, orange or yellow. However, Article 15.3 of the Implementing Regulation allows them to be of any color, except red or green. Therefore, the possibility set in RD 410/2001 for the buoy to be red is no longer applicable. Furthermore, it establishes that lights shall be white, while the Implementing Regulation requires them to be yellow. RD 1428/1997 contains the same provision in relation to the color of lights. It is necessary to bear in mind that these provisions which contravene the Imple-mentation Regulation were adopted long before the adoption of the Fisheries Control Regulation. Therefore, masters of fishing vessels must comply with the latter.

156 BOE No. 235, of 01.10.1997.157 BOE No. 96, of 21.04.2001.


1.4. The vessel monitoring system

The Fisheries Control Regulation includes the use of technologies such as VMS158, AIS159, and the VDS160, since they allow for an effective monitoring and for undertaking systematic crosschecks quickly updated, and provide administrative control procedures.

VMS monitors the activity of fishing vessels, and that those vessels can actively report the catch undertaken to the authorities on fisheries management. VMS provides control bodies the exact location of those fishing vessels participating in the system. It also informs the control body, at reg-ular intervals of time, about where a vessel is located and where it was previously. The information about the geographical position can be supplied to the control authority in real time (in less than 30 minutes), wherever those vessels may be in the world. It can also provide information on the course and speed of the vessel. VMS allows the transmission of data on catches and fishing effort from the fishing vessel to the control body practically in real time. However, this information cannot be gener-ated automatically by the vessel’s equipment, but it must be entered by the operator of the vessel161.

Article 9.1 of the Fisheries Control Regulation requires MS to use a VMS for effective monitoring of fishing activities of vessels flying their flag. This requirement was already introduced by Regulation (EEC) 2847/93, being introduced in our legal system through the approval of the Order of 1998162. At present, Order APA/3660/2003 of 22 December, is the one currently in force, which regulates the satellite-based VMS in Spain and establishes the regulatory basis regarding aids for the purchase and installation of fishing VMS163. Its Preamble states that “the vessel monitoring system must be integrated by a FMC on land, responsible for monitoring fishing activities and fishing effort, and through the tracking devices for vessels satellite-based monitoring installed in vessels, which shall automatically report to the Monitoring Centre”.

158 “vessel monitoring system” means satellite-based fishing vessel monitoring system providing to the fisheries authorities data at reg-ular intervals on the location, course and speed of vessels (Art. 2.8., Implementing Regulation).159 “Automatic Identification System” means an autonomous and continuous vessel identification and monitoring system which pro-vides means for ships to electronically exchange with other nearby ships and authorities ashore ship data including identification, posi-tion, course and speed (Art. 4.11., Fisheries Control Regulation).160 “Vessel Detection System” means satellite-based remote sensing technology which can identify vessels and detect their positions at sea (Art 4.13., Fisheries Control Regulation).161 FAO Fishing Operations 1. Vessel Monitoring Systems. FAO Technical Guidelines for Responsible Fisheries. No. 1, Suppl. 1. Avail-able at: http://www.fao.org/docrep/003/w9633e/w9633e00.htm.162 Order of 12 November 1998, regulating the satellite-based vessel monitoring system in Spain.163 BOE No. 313, of 31.12.2003. This Order has undergone a number of amendments.

http://www.fao.org/docrep/003/w9633e/w9633e00.htm


The Fisheries Control Regulation requires that all fishing vessels of 12 meters length overall or more have installed on board a fully functioning device which allows that vessels to be automati-cally located and identified through the VMS and allows the FMC of the flagged MS to send and receive signals from the vessel. This device is known as the “blue box”164, precisely because of the color of the device saver. This obligation has been reflected in our legal system through Orders APA/3660/2003 and AAA/158/2012 of 30 January, laying down the rules on aid for the purchase and installation of vessel monitoring satellite-based equipments165.

Despite the obligation to have this device on vessels of 12 meters length overall or more, the Fish-eries Control Regulation also allows MS for exemption from this obligation if the vessels flying their flag of less than 15 meters length overall, if166:

a) They operate exclusively within the territorial seas of the flag Member State, or

164 Art 2.3, Order APA/3660/2003:“The equipments will consist of an antenna and a sealed box, so-called “blue box”, which shall con-tain jointly the positioning devices and satellite communications, as well as the necessary electronics for meeting all the functions in the technical specifications”.165 BOE No. 27, of 1.02.2012.166 Art. 9.5., Fisheries Control Regulation.

Illustration 3:

Functioning of the Vessel Monitoring System (VMS)Source: European Commission


b) They never spend more than 24 hours at sea from the time of departure to the return port.

Spain has opted to implement this derogation, so as to exempt those national fishing vessels whose activity does not fall within the exemptions previously referred and which have more than 12 meters

length overall and less than 15 meters, from the obligation to have installed on board the VMS (Pre-amble, article 1.a) of Order AAA/158/2012).

No EU fishing vessel subject to the VMS can leave a port without a fully operational satellite-tracking device installed on board167. However, after notifying the Spanish FMC and the coastal MS, where appropriate, the satellite-tracking device may be switched off by pressing the corresponding but-ton, when the vessels is in port, provided that the following communication of the equipment power up is made from the same position at the port where it was previously switched off168.

167 Art. 18.1, Implementing Regulation.168 Art. 7, O APA/3660/2003. In line with the provisions contained in article 18.2 of the Implementing Regulation.

Illustration 4:

Blue box or VMS deviceSource: MAGRAMA


Table 4: DATA TO BE TRANSMITTED AUTOMATICALLY AND PERIODICALLY TO THE FMC

Implementing Regulations Order APA/3660/2003

Art. 19.1a. Identification of EU fishing vessel;b. The most recent geographical position

of the fishing vessel, with a position error which shall be less than 500 meters, with a confidence interval of 99%;

c. The date and time (expressed in Coor-dinated Universal Time (UTC)) of the fixing of the said position of the fishing vessel, and

d. The instant speed and course of the fishing vessel.

Art. 23

The FMC should control through the VMS the date and time of entry into and arrival:a. any maritime areas where specific

rules on access to waters and resourc-es applies;

b. fishing restricted areas referred to in Article 50 of the Control Regulation;

c. regulatory areas of RFMO to which the EU or MS are a part;

d. waters under the sovereignty and juris-diction of a third country.

Art. 3.1.a. Vessel identification.b. Geographical position with heading and speed.c. Date and time the position is determined.d. Entry into and exit from fishing areas subject to a fish-

ing effort regime.e. Entry into and exit in third country waters.f. Entry into and exit in the regulatory areas of the

Regional Fisheries Bodies in which Spain or the EU are members.

g. Events relating to the operation of the equipment.

Annex II 3.3.1.

1. Position messages

The Vessel Monitoring equipment shall be able to auto-matically transmit messages or position reports (on request or newspapers) which include the following infor-mation:a. Identity of the Vessel Monitoring Equipment.b. Date (year, month, day) and time (hour and minutes)

UTC in which the vessel’s position has been deter-mined.

c. Latitude.d. Length.e. Current course.f. Current speed.g. Activity (fishing/no fishing).2. The geographical position within the position report must be provided with an error not exceeding 100 meters.

As can be seen, although the Implementing Regulation allows a position error concerning the most recent geographical position of the fishing vessel to be less than 500 meters, the Spanish legisla-tion requires this error position no to exceed 100 meters. This matter regarding the position error was subject to a question submitted by the EP to the Commission. This is because in Greece authorities had imposed severe sanctions to fishermen because of the utilization of crafts at prohib-ited distances from the coast, based on the geographical position provided by the VMS. According to the question raised, these measures differed from the legal fishing limits in an average of 200 meters, and such distance was covered by the margin of error on the geographical position169. The Commissioner for Fisheries and Maritime Affairs, during this time, Ms. Damanaki, answered that although the margin of error required by the Implementing Regulation must be of less than 500 meters, a MS may impose an obligation on their vessels to be equipped with stricter VMS require-ments, including a stricter position error.

The MS flag is required to ensure the continuous, systematic monitoring and control of the accuracy of data that is being transmitted, and must act quickly in case they receive incorrect or incomplete 169 Question E-005152-14 submitted on April 17, 2014 by MEP RodiKratsa-Tsagaropoulou (PPE). available in http://www.europarl.euro-pa.eu/sides/getDoc.do?type=WQ&reference=E-2014-005152&language=EN.

http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2014-005152&language=EN

http://www.europarl.europa.eu/sides/getDoc.do?type=WQ&reference=E-2014-005152&language=EN


data170. In addition, the Spanish FMC must ensure that it receives such data transmitted by Spanish fishing vessels at least once every two hours171. Moreover, the Spanish FMC must be able to obtain the actual position of each one of the Spanish fishing vessels172. We understand that this capability is guaranteed through, the blue boxes that must communicate its geographical position in a relia-ble and safe manner, while maintaining the confidentiality of messages against third parties173, as well as through the communications architecture of the FMC. Thus, the VMS involves the following elements:

� The blue boxes installed in vessels.

� Positioning and communication satellites.

� The FMC itself.

The MAGRAMA explains how the VMS works, as follows174:

� The positioning unit, through the GPS system, receives the necessary data to calculate its position, course and speed. This data, together with the date and time, are transmitted through the Inmarsat-C (inside the blue box) to a ground station every two hours.

� The ground station receives the satellite data and sends them to the Reception and Sending Center, which analyzes incoming messages and automatically forwards them to the corresponding destination or destinations (See illustration 6).

According to figures provided by the MAGRAMA, are taken from a permanent satellite tracker which tracked 2,183 Spanish vessels in 2013 (Table 5).

The Fisheries Control Regulation requires MS to ensure that the satellite tracking devices are pro-tected against input or output of false positions and they cannot be handled manually. Thus, Order APA/3660/2003 requires the establishment of a procedure for fixation of seals or labels sealed in order to prevent unauthorized opening of the box, antenna, or separation of the vessel monitoring equipment175. It also prohibits any manipulation entailing the opening of the blue box or antenna,

170 Art. 21., Implementing Regulation.171 Art. 22.1., Ibid.172 Art. 22.2., Ibid.173 Annex II, 1.2.2, O APA/3660/2003.174 Annual Report MAGRAMA 2013.175 Art. 4.7. O APA/3660/2003.

Illustration 5:

Functioning of the VMSSource: MAGRAMA Report 2013


the separation bulkhead holding, the disconnection or obstruction of the antenna communications, power changes, or any other action that alters or may alter the normal functioning of the equipment, except those foreseen in the repair and maintenance operations when are conducted by authorized personnel176.

176 Art. 5.3, Ibid. Annex II of this Order, requires in its points 3.1.9 that “in any case will be possible the modification of data concerning identification or vessel position by others which are false”.

Illustration 6:

Architecture of the Spanish FMCSource: Sheet of technical specifications for contracting through opened procedure the mainte-nance of the FMC of the SGM (May 2009) https://contrataciondelestado.es/wps/wcm/connect/

ffaa42e4-1c36-49e0-8610-


Table 5: VESSELS UNDER PERMANENT SATELLITE-TRACKING

Fleet Vessels

International waters longline surface 150

Cod fishing boats, NAFO trawling and international waters 21

Trawling freezers South Atlantic 19

Tuna freezers 40

Pole-and-line tuna vessels and others 7

Morocco 53

Cephalopod Mauritania 26

Alborán trawling 55

Ibiza trawling 50

EU trawling and longlining 114

Portugal trawling 13

Cantabrico and NW > 20 m. 0 > 24 m 205

Cantabrico and NW > 15 m 140

Cantabrico and NW > 18 m 127

South Atlantic National Ground > 20 m. 0 > 24 m 9

South Atlantic National Ground > 15 m 105

South Atlantic National Ground > 18 m 84

Mediterráneo National Ground > 20 m. 0 > 24 m 165

Mediterráneo National Ground > 15 m 310

Mediterráneo National Ground > 18 m 332

Canarias 5

Canarias > 15 m 10

Canarias > 18 m 3

National fishing grounds longline surface 11

National fishing grounds longline surface >15 m 42

National fishing grounds longline surface >18 m 25


Continuation

Fleet Vessels

Agreements with third countries 31

Fishing auxiliaries 18

Tugs 13

TOTAL 2.183

Source: MAGRAMA Report 2013

Furthermore, Article 9.3 of the Fisheries Control Regulation requires a flagged MS operating in the waters of another MS to communicate the VMS data of that vessel by an automatic transmission to the FMC of the coastal MS. Furthermore, if requested, the VMS data shall also be made available to the MS of the port a fishing vessel is likely to land its catches in or in the waters of which a fishing vessel is likely to continue its fishing activities. Article 24 of the Implementing Regulation establish-es guidelines for the transmission of data to the coastal MS:

� The transmission must be simultaneous with receipt at the FMC of the flag MS and be conducted in accordance with the format set out in Annex V.

� The carrying coastal MS monitoring jointly an area may specify a common destination for the transmission of data to be provided.

� Each MS is obliged to transmit to other MS and the Commission that is compatible, (electronic format where possible) with the World Geodetic System 1984 (WGS 84) a comprehensive list of latitude and longitude coordinates that delimit the EEZ or exclusive fishing zone. It shall also communicate all changes occurring in these coordinates177.

� MS must ensure effective coordination between their competent authorities regarding the transmission of VMS data.

Order APA/3660/2003 states that the devices must have permanent coverage in all fishing grounds in which such vessel can exercise the fishing activity, and its Preamble establishes that the FMC is allowed to communicate with FMC installed in other countries. However, it does not specifically reg-ulate the process for transmitting data to the coastal MS, nor when such transmission of data must be carried out. Nevertheless, these are procedures to be agreed on with the coastal MS.

The Implementing Regulation establishes how to proceed in case of technical failure or non-func-tioning of the blue box:

1) The master or his representative shall communicate to the FMC of the flag MS every four hours the up-to-date geographical coordinates of the fishing vessel by the appropriate telecommunication means starting from the time when the event was detected178 or from the time they had knowledge179. Either the technical failure is detected on board, or if it has been notified by the FMC, the master, captain or ship-owner shall communicate to the Spanish FMC and the FMC of the coastal MS every four hours, from the time the event

177 MS may choose, as an alternative, to publish the list in question on the website referred to in Article 115 of the Fisheries Control Regulation.178 Either because they have been informed by the authorities of the flag MS or coastal MS or because the FMC has informed them about the 12 hours without receiving data transmissions.179 Art. 25.1, Implementing Regulations.


is detected: data concerning the vessel, up-dated geographical position, date and time either by e-mail, telex, fax, telephone message or by radio through a broadcaster radio authorized by EU legislation180. These media to be used shall be described in the publicly accessible part of the website that Spain should have in accordance with the Fisheries Control Regulation181.

2) The FMC of the flag MS shall introduce without delay in the VMS database upon receiv-ing the geographical positions referred to in paragraph 1. The manual VMS data must be clearly distinguished in the database of the automatic messages. Where appropriate, manual VMS data shall be transmitted immediately to the coastal MS.

3) Following a technical failure or non-functioning of the vessel satellite-tracking device installed on board, the vessel may not leave port until it has been repaired and checked the correct functioning by the FMC, or has obtained a express authorization of the GSF to leave with the damaged equipment182.

4) In the event that the satellite-tracking device installed on board of an EU fishing vessel may be defective or may not function properly, the FMC should notify it183.

5) Removal of the satellite-tracking device for its repair or replacement must be approved by the competent authorities of the flag MS. We understand that this obligation is, in an implicit manner, reflected in Article 4.7 of Order APA/3660/2003 which states: “A pro-cedure for the establishment of seals or sealing labels will be established to prevent unauthorized opening of the box, antenna, or separation of the vessel monitoring equip-ment”.

Article 26 of the Implementing Regulation establishes obligations on how to proceed in case of non-receipt of data for twelve consecutive hours. Furthermore, if this occurs more than three times within a period of a calendar year, the Spanish authorities shall require the blue box to be thoroughly checked.

Although not reflected in national legislation, Spain is required to use the data received by the FMC for the effective control of the activities of fishing vessels. For that purpose, it shall184:

a) Ensure that data received are recorded in a computer-readable form and is safely stored in computerized databases for at least three years;

b) Take all necessary measures to ensure that they are only used for official purposes, and

c) Take all necessary technical measures to protect such data against any accidental or illicit destruction, accidental loss, deterioration, distribution or unauthorized consultation.

When a Spanish vessel operates in waters of a third country or in areas of high seas in which the management of fisheries resources is under the responsibility of an international organization, and the agreement with the third country or the applicable rules of the international organization so provide, such data should also be communicated to the referred country or organization. The Spanish FMC exchanges VMS data in real time with 20 international destinations, in whose waters

180 Art. 8.1, O APA/3660/2003. 181 See Section 2.13.2 of this document.182 Art. 8.2, O APA/3660/2003, which accurately reflects what required by Art. 25.3. of the Implementing Regulation.183 Art. 8.1, Ibid. 184 Art. 27, Implementing Regulation.


the Spanish fleet operates such as Norway, Seychelles, Madagascar, Mauritania, Morocco, NAFO and NEAFC185.

The obligations relating to VMS also apply to third-country fishing vessels with 12 metres length overall or more and to third countries auxiliary fishing vessels engaged in activities ancillary to fish-ing activities operating in EU waters186.

1.5. The automatic identification system

Along with the VMS, the AIS is another device used to achieve the efficiency of fisheries control. The main aim of the AIS is to allow vessels to communicate their position and other relevant information for other vessels to be aware and avoid collisions.

The AIS was originally designed to prevent collisions between vessels but has become a corner-stone of maritime position alerts as it signals where the vessel is at sea. However, the AIS is prone to interference and distortion, and the alteration of reported data reported is expected to increase in the future. Recently, the Joint Research Center of the EU, in collaboration with the Italian coastguard service, has developed a new method to verify if the positions reported by the AIS are correct187.

In accordance with Article 10 of the Fisheries Control Regulation, RD 210/2004 of 6 February, establishing the monitoring and information system for maritime traffic188 requires fishing vessels exceeding 15 meters length overall flagged and registered in an EU MS, or which operate in internal waters or in the Spanish territorial sea, or landing their catches in an Spanish port, to be equipped with an AIS class A189 which meets the performance standards drawn up by the International Mariti-me Organisation (IMO190).

Table 6: DATA BROADCASTED BY THE AIS

Data Class A (Send and Receive)

Vessel Name √

Type √

Indicative √

IMO Number √

185 Source: http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/default.aspx .186 Art. 9.6, Fisheries Control Regulation.187 Source: https://ec.europa.eu/jrc/en/news/new-method-verify-reported-vessel-positions.188 BOE. 39, of 02.14.2004. This Decree was amended by RD 1593/2010, of November 26 and RD 201/2012 of 23 January. 189 Class A uses SOTDMA (Self Organised Time-Division Multiple-Access) and is used in large vessels. Class A systems comprise a VHF transmitter of 12,5W, a system of global positioning satellite (GPS for example), two VHF TDMA receivers, a DSC VHF receiver, and a standardized sea interface type IEC 61162/NMEA 0183 for communicating data with other teams of the vessel. Source: www.allaboutais.com.190 IMO established the obligation to have an AIS in a 2002 amendment to the International Convention for the Safety of Life at Sea, 1974. Specifically, in its Chapter V Regulation 19 concerning Carriage requirements for shipborne navigational systems and equipment. In April 23, 2009 was published Directive 2009/17/EC regarding the establishment of a Community vessel traffic monitoring and information system which amended the previous Directive 2002/59/EC, making mandatory the use of AIS for fishing vessels.

http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/default.aspx

https://ec.europa.eu/jrc/en/news/new-method-verify-reported-vessel-positions

http://www.allaboutais.com

http://www.allaboutais.com


Continuation

Length and Beam √

Antenna location √

Draft √

Cargo Information √

Destination √

ETA (Estimated time of arrival) √

Other relevant information √

Time √

Vessel Point √

Course Over Ground (COG) √

Speed Over Ground (SOG) √

Gyroscopic direction √

Spin Speed √

Navigation Status √

Vessel Speed √

State of the Vessel √

Alarms √

Security √

Source: Wikitel

MS can use the AIS data, when these are available, in order to compare them with other available data. For this purpose, the FMC must have access to the AIS data of Spanish fishing vessels.

1.6. The vessel detection system

Article 11 of the Fisheries Control Regulation requires MS to use a VDS that allows them to match the positions derived by remotely sensed images sent to earth by satellites or other equivalent systems with the data received through the VMS or SIA, in order to assess the presence of fishing vessels in a given area, provided they have clear evidence that this proceeding has advantages in terms of cost benefit compared to the traditional control means in the detection of fishing vessels. Furthermore, it requires the FMC of MS to have the technical capacity to use a VDS. As foreseen in the previous section, Spain counts with a VDS since it has a satellite remote sensing technology which can identify vessels and detect their positions at sea, and the FMC counts with the necessary technical capacity to use that system.


Data collected by the VMS, AIS, and the VDS under application of the Fisheries Control Regulation can be useful for purposes of maritime safety and security, borders control, protection of the marine environment, and for other purposes in order to ensure compliance with the Law so they can be communicated to other EU agencies and other MS.

GENERAL CONDITIONS OF ACCESS TO WATERS AND RESOURCES

In this matter, the Spanish legal system is in accordance with the Fisheries Control Reg-ulation, with one exception and in some cases is more stringent.

� With regard to fishing authorizations, Article 25.2 of Law 3/2001 allows the granting of a special fishing permit collectively when concerning a group of vessels, while the Implementing Regulation requires an authorization to be only valid for an EU fishing vessel. Therefore, in this matter the Spanish legal system does not comply with the Fisheries Control Regulation.

� Although Spanish legislation includes some inconsistencies regarding the signal-ing of buoys, it is necessary to take into account that the rules in this area are prior to the approval of the Implementing Regulation, and it should be understood that these inconsistencies should not be required nor applied.

� While Implementing Regulation allows the margin of error to the latest position of the fishing vessel issued by the VMS to be less than 500 meters, the Spanish legislation states that this margin of error must not exceed 100 meters.

2. Fisheries ControlFisheries control is undertaken through monitoring by MS of the activities of their fishing vessels both in and outside of EU waters. This control is conducted by controlling:

� The use of fishing opportunities,

� Management of the fleet,

� Multiannual plans,

� Technical measures, and

� Recreational fishing.

2.1. Control of the use of fishing opportunities

In the first chapter of Title IV, the Fisheries Control Regulation envisages measures to ensure the control of the use of fishing opportunities191:

191 Article 4.32. of the Fisheries Control Regulation defines “fishing opportunities” as the “quantified legal entitlement to fish, expressed in terms of catches or fishing effort”.


a) The obligation to complete and submit the fishing logbook, transhipment declaration and landing declaration, either in print or electronic format192;

b) The obligation to monitor and manage fishing effort in areas where there is maximum allowable fishing effort193;

c) The obligation to record both the data related to catches and fishing effort and exchange them with the Commission194, and

d) The obligation of closure of fisheries by MS or the EC, where necessary, under the cir-cumstances provided for in the Fisheries Control Regulation195.

2.1.1. compleTion and submission of documenTs To ensure conTrol of The use of fishing opporTuniTies

The Fisheries Control Regulation regulates the obligation of the master196 to complete and submit to the competent authorities a series of documents that will be an essential part of the control and inspection procedures concerning the monitoring of consumption quotas.

Among these documents are the logbook, the transhipment declaration and the landing declara-tion, which can be either in printed or in electronic format.

2.1.1.1. Fishing logbook, transshipment declaration, and landing declaration in printed format

In 1982, with the adoption of Regulation (EEC) No 2057/82, many obligations relating to the keeping of a logbook197 and the completion of a landing declaration198 were already regulated. In the case of transhipment199, the masters of fishing vessels were required to inform competent authorities of the date of transhipment, as well as concerning the quantities to be transshipped and the place of catching. However, these obligations were only provided for those stocks or groups of stocks sub-ject to a total allowable catch (TAC).

With the successive adoption of the regulations concerning the control of CFP200, the list of species for which these obligations applied to was broadened. However, it was not until the adoption of the current Fisheries Control Regulation201 when this obligation was regulated for the first time for all species.

192 Section 1, Chapter I, Title IV, Fisheries Control Regulation.193 Section 2, Ibid.194 Section 3, Ibid.195 Section 4, Ibid.196 The Fisheries Control Regulation envisages, in certain cases, the possibility that the representative of the master of the fishing vessel completes and submits the transhipment and landings declarations in printed or in electronic format, or to communicate the logbook data, transhipment declarations and landing declarations in electronic format.197 Art. 3, Regulation (EEC) 2057/82.198 Art. 6, Ibid.199 Art. 7, Ibid.200 See part A, Section 1.5 of this document.201 Article 1, paragraph 5 of Regulation (EC) No 2846/98 of the Council of 17 December 1998 amending Regulation (EEC) No 2847/93 establishing a control system applicable to the common fisheries policy (OJ L 358, 31.12.1998) amended Article 6.2 of Regulation (EEC) No 2847/93 and replaced by the following: “2. As of January 1, 2000, any amount greater than 50 kg of live weight equivalent of any species retained on board must be recorded in the logbook in areas other than the Mediterranean. For the fisheries operations in the


The fishing logbook

Article 14 of the Fisheries Control Regulation, as it was worded before its amendment by Regulation (EU) 2015/812, required masters of fishing vessels of 10 meters length overall or more to keep a fishing logbook where they record all its operations, indicating the quantities captured and trans-ported, provided that these had above 50 kg of live-weight equivalent202, and record all discards203

weighing more than 50 kilograms. However, one of the main objectives of the latest reform of the CFP in 2013 was the progressive elimination of discards in all fisheries in the EU204, through the establishment of the landing obligation under Article 15 of the Fisheries Control Regulation, in accordance with the following calendar:

Mediterranean Sea, must be recorded in the logbook any amount greater than 50 kg of live weight equivalent of any species indicated on a list adopted in accordance with the provisions of this Article with quantity”. This new editorial, affected the obligations concerning the landing and transhipment.Subsequently, Regulation (EC) No. 1967/2006 of December 21, 2006 concerning management measures for the sustainable exploita-tion of fishery resources in the Mediterranean Sea and amending Regulation (EEC) No 2847/93 was adopted, and Regulation (EC) No 1626/94 (OJ L 409, 30.12.2006) was amended by which the second sentence of this article was replaced by repealing the following: “For the fisheries operations in the Mediterranean, must be recorded in the logbook any sustained amount greater than 15 kg of live weight equivalent board of any species indicated on a list adopted in accordance with the provisions of paragraph 8. However, in the case of the species highly migratory and small pelagic species shall be recorded in the logbook any more than 50 kg of live weight equivalent amount”.202 Art. 14.1, Fisheries Control Regulation. Article 50.1 of the Implementing Regulation provides that “The fish live weight shall be ob-tained by multiplying the fish processed weight by the conversion factors referred to in Article 49 of this Regulation for each species and presentation.”.Furthermore, Article 49 states: “1. For the completion and submission of fishing logbooks referred to in Articles 14 and 15 of the Control Regulation, the conversion factors of the EU set out in Annexes XIII and XIV apply XV, in order to convert the weight of stored or pro-cessed fish live weight. They shall apply to fisheries products on board or transhipped or landed by EU fishing vessels. 2. Notwithstanding paragraph 1, where a regional fisheries management organization of which the European Union is a Contracting Party or Cooperating non-Contracting Party established coefficients conversion regarding its regulatory area or a third country with which the European Union has a fisheries agree-ment established conversion factors regarding the waters under the sovereignty or jurisdiction of such third country, these coefficients are applied. 3. Where no conversion factors as referred to in paragraphs 1 and 2 with respect to a given species and presentation, the conversion factor adopted by the flag Member State shall apply. 4. Notwithstanding paragraph 2, the competent authorities of the Member States shall use the conversion factors of the EU referred to in paragraph 1 to calculate the live weight of transhipments and landings in order to monitor the use of quotas”.203 Art. 14.4, Fisheries Control Regulation. Article 4.1.10 of the Fisheries Control Regulation defines discards as “the catch returned to the sea”.204 Paragraph 26 of the preamble to the Fisheries Control Regulation establishes that “Measures are needed to reduce the current high levels of unwanted catches and to gradually eliminate discards. Unwanted catches and discards constitute a substantial waste and neg-atively affect the sustainable exploitation of marine biological resources and marine ecosystems and the financial viability of fisheries. An obligation to land all catches (“the landing obligation”) of species which are subject to catch limits and, in the Mediterranean Sea, also catches of species which are subject to minimum sizes, made during fishing activities in Union waters or by Union fishing vessels should be established and gradually implemented and rules that have so far obliged fishermen to discard should be repealed.”.


Illustration 7:

Calendar for the implementation of the landing obligationSource: Own elaboration

January 1, 2019 January 1, 2017 January 1, 2016 January 1, 2015

a) Small Pelagic Fish-eries: mackerel, herring, horse mackerel, blue whiting, boarfish, ancho-vy, argentine, sardine and sprat.b) Large Pelagic Fish-eries: bluefin tuna, swordfish, albacore tuna, bigeye tuna, and white marlin.c) Fisheries for indus-trial purposes (among others, capelin, sandeel and Norwegian pout); d) Salmon Fisheries in the Baltic Sea.e) Species which define fisheries in Union waters of the Baltic Sea and subject to catch limits other than those covered by points a) and d).

For the species which define the fisheries in:f) the North Sea: fish-eries for cod, hadcock, whiting, and saithe; fisheries for lobster; fish-eries for common sole and plaice; fisheries for hake; and fisheries for Northern prawn.g) North Western waters: fisheries for cod, hadcock, whiting, and saithe; fisheries for lobster; fisheries for common sole and plaice; and fisheries for hake.h) South Western waters: fisheries for lobster, fisheries for common sole and plaice; and fisheries for hake.i) Other fisheries for species subject to catch limits.

j) All other species in fisheries in the waters of the Baltic Sea Union subject to catch limits other than those species listed under points a) and d).k) Species defining fisheries in the Med-iterranean Sea, the Black Sea and all other waters of the EU and in waters which are not under the sovereignty or jurisdiction of third countries and which are distinct from the sepecies referred to in points a) and d).

l) All other species in the North Sea, North-western Waters and Southwestern Waters.m) All other species not referred to in points a) and d) in the Mediter-ranean Sea, the Black Sea and all other EU waters and non-EU waters which are under the sovereignty or jurisdiction of third countries.

According to the this obligation, Regulation (EU) 2015/812 was adopted, which amended, among others, certain provisions concerning the obligation of the logbook in order to bring them in line with the landing obligation:


Table 7: AMENDMENTS OF ARTICLES 14.1 AND 14.4 OF THE FISHERIES CONTROL REGULATION

Fisheries Control Regulation Regulation (EU) 2015/812

Art. 14.1.

Without prejudice to specific provisions contained in multiannual plans, masters of Community fishing vessels of10 metres’ length overall or more shall keep a fish-ing logbook of their operations, indicating specifically all quantities of each species caught and kept on board above 50 kg of live-weight equivalent.

Art. 14.1.

Without prejudice to specific provisions contained in multiannual plans, the master of each Union fishing ves-sel of 10 metres length overall or more shall keep a fishing logbook of operations, indicating specifically, for each fish-ing trip, all quantities of each species caught and kept on board above 50 kg of live-weight equivalent. The 50 kg threshold shall apply as soon as catches of a species exceed 50 kg.

Art. 14.4.

Masters of Community fishing vessels shall also record in their fishing logbook all estimated discards above 50 kg of live weight equivalent in volume for any spe-cies.

Art. 14.4.

Masters of Union fishing vessels shall record in their fishing logbook all estimated discards above 50 kg of live-weight equivalent in volume for any species not subject to the landing obligation.

Masters of Union fishing vessels shall also record in their fishing logbook all estimated discards in volume for any species not subject to the landing obligation pursuant to Article 15(4) and (5) of Regulation (EU) No 1380/2013 of the European Parliament and of the Coun-cil.


This obligation to keep a fishing logbook, in which all the details of fishing operations are recorded, is contained in Law 3/2001205.

With the aim to undertake a monitoring of the quotas consumption on the basis of the fishing log-book notes, the masters shall reflect the following information in the fishing logbook:

a) the external identification number and the name of the fishing vessel.

b) the Food and Agriculture Organization of the United Nations (FAO)206 alpha-3 code of each species and the relevant geographical area207 in which the catches were taken.

c) the date of catches.

205 Art. 33.1, Law 3/2001.206 Is one of the three codes assigned by the FAO to each item of species. “unique code made of three letters that is widely used for the exchange of data with national correspondents and among fishery agencies.” ASFIS list of species for fishery statistics purposes, FAO, Rome, 2002, p.9. Available online at: ftp://ftp.fao.org/docrep/fao/006/y7527t/y7527t00.pdf.207 Article 4.30 of the Fisheries Control Regulation defines “relevant geographical area” as a sea area that is considered as a unit for the purposes of geographical classification in fisheries expressed by reference to a Food and Agriculture Organization of the United Nations (FAO) sub-area, division or sub-division, or where applicable an International Council for the Exploration of the Sea (ICES) statisticalrect-angle, fishing effort zone, economic zone or area bounded by geographical coordinates”.Furthermore, Art. 4.2 of the CFPR states that “for the purposes of this Regulation the following geographical areas shall apply:a) “North Sea”, ICES zones (1) Illa and IV; b) “Baltic Sea”, ICES zones IIIb, IIIc and IIId;c) “North Western waters”, ICES zones V (excluding Va and only Union waters of Vb), VI and VII; d) “South Western waters”, ICES zones VIII and X (waters around Azores), and CECAF zones (2) 34.1.1, 34.1.2 and 34.2.0 (waters around Madeira and the Canary Islands); e) “Mediterranean Sea”, Maritime Waters of the Mediterranean to the East of line 5º 36’ West; f) “Black Sea”, GFCM (General Fisheries Commission for the Mediterranean) geographical sub-area as defined in Resolution GFCM/33/2009/2”.

ftp://ftp.fao.org/docrep/fao/006/y7527t/y7527t00.pdf


d) The date of departure from and of arrival to port, and the duration of the fishing trip208. During a fishing trip, the time spent in a specific zone for those vessels which are operat-ing in a fishery subject to an EU regime of fishing effort, or which have crossed an effort zone where they are authorized to fish will be counted differently depending on the type of fishing gear used209:

Table 8: WAYS TO DELIMITATE TIME DEPENDING ON THE FISHING GEAR

Towed gear

� entry into, and exit from the port located in that area; � each entry into, and exit from maritime areas where specific rules on

access to waters and resources apply; � the catch retained on board by species in kilograms liveweight at the

time of exit from that area or before entry into a port located in that area.

Static gear

� entry into, and exit from the port located in that area; � each entry into, and exit from maritime areas where specific rules on

access to waters and resources apply; � the date and time of setting or re-setting of the static gear in these areas; � the date and time of the completion of fishing operations using the static

gear; � the catch retained on board by species in kilograms liveweight at the

time of exit from that area or before entry into a port located in that area.


e) the type of gear, mesh size and dimension.

f) the estimated quantities of each species in kilograms liveweight or, where appropriate, the number of individuals, including the species catched for live bait210. Furthermore, the quantities or individuals below the applicable minimum conservation reference size shall be reflected as a separate entry211. 10% margin of tolerance shall be permitted for all species, among the quantities recorded in the fishing logbook and the quantities reta-ined on board212.

g) the number of fishing operations.

Depending on the fishing zone concerned, there exist different standardized models of fishing log-books which will be the same for all EU fishing vessels, even if fishing activities are carried out in waters of a third country, waters regulated by a RFMO or in waters located outside the EU that are not regulated by an RFMO213. Exceptionally, and in the case that the third country or the RFMO reg-ulating the waters where the vessel is operating requires the submission of information in a different manner, that must be completed as ordered214.

208 Article 2.10 of the Implementing Regulation defines “fishing trip” as “any voyage of a fishing vessel during which fishing activities are conducted that starts at the moment when the fishing vessel leaves a port and ends on arrival in port”.209 Article 14.5, Fisheries Control Regulation and Art, 51.4, Implementing Regulation.210 Article 51.3 Implementing Regulation.211 Article 7.2.b), Regulation (EC) 2015/812, which replaced Article 14.2.f) of the Fisheries Control Regulation.212 Article 14.3, CFPR.213 Article 30 of the Implementing Regulation states that for NAFO sub area 1 and ICES divisions V (a) and XIV, it will be used the model shown in Annex VIII of the Implementing Regulation. Model shown in Annex VII of the Implementing Regulations will be used for fisheries operations carried out in the Mediterranean and provided that daily fishing trips are exclusively done in a single fishing zone. For all the other zones the model shown in Annex VI of the Implementing Regulation will be used.214 Article 30.3, Implementing Regulation.


The fishing logbook must be completed by the master of the fishing vessel as follows215:

Table 9: RULES FOR COMPLETION OF THE LOGBOOK IN PRINTED FORMAT 216 217 218

When?

� daily, always before 24:00 hours. � prior to entry into port. � upon inspection at sea. � on cases determined by the EU regulations or the Spanish State.

How?

� the records must be legible and indelible216. � it will not be allowed to delete or modify any annotation. In the event of an error, the

annotation must be crossed out with a single line and the new entry will be written and signed by the master217.

� The master should complete and initiate a new line in the logbook: - For each day at sea; - if on the same day they fish in a new division International Council for the

Exploration of the Sea (ICES) or in another fishing zone; - by recording data on fishing effort218.

� The captain shall complete a new page in the logbook: - In case of using different gear, or a net of different size mesh than previously

used; - for catches after transhipment or an intermediate landing; - when the columns of the previous page are insufficient; - when leaving a port, if no landing had taken place; - or when leaving port, following completion of a transshipment operation, when

catches remain on board, stating the quantities of each species.


The masters, which are the only ones responsible for the accuracy of the data recorded219, must present the original fishing logbook to their respective guilds or corresponding producer organi-zations, which will be in charge of collecting, managing and sending them220 within 48 hours after the landing to the General Department of Control and Inspection221, regardless of the place of landing222 and even if no catch has been landed after a fishing trip223. However, it is not common for vessels landing outside Spain to perform this procedure, since most of them are equipped with an On-Board Electronic Logbook (in Spanish, DEA). Furthermore, in case the landing has taken place in a place close to the coast or in the port of another MS, the master shall present the first copy of the logbook to the authorities of that MS no later than 48 hours after landing occur224.

The obligation to register and submit the fishing logbook to the competent authorities of the MS where catches are landed will also applied to vessels of third countries operating in EU waters225.

215 Art. 33, Ibid.216 Ibid.217 Art. 4.1.21) of the Fisheries Control Regulation defines “fishing effort” as “the product of the capacity and the activity of a fishing vessel; for a group of vessels, the sum of the fishing effort of all vessels in the group”.218 Art. 31.3, Ibid.219 Art. 14.9, Fisheries Control Regulation. 220 La Voz de Galicia, 31.01.2013. Accessible online en: http://www.lavozdegalicia.es/noticia/carballo/2013/01/31/cofradias-asu-men-tramitacion-diarios-descarga-pesca/0003_201301C31C3993.htm.221 Art. 14.6.a, Fisheries Control Regulation and Art.32.1, Implementing Regulation.222 Art. 32, Implementing Regulation. In case a third country or the rules of an RFMO require a different type of fishing logbook, the master of the fishing vessel must present a copy of it before the SGF.223 Art. 32.2, Ibid.224 Art. 14.6.b, Fisheries Control Regulation and Art. 32.3, Implementing Regulation. 225 Art. 14.8, Fisheries Control Regulation.

http://www.lavozdegalicia.es/noticia/carballo/2013/01/31/cofradias-asumen-tramitacion-diarios-descarga-pesca/0003_201301C31C3993.htm

http://www.lavozdegalicia.es/noticia/carballo/2013/01/31/cofradias-asumen-tramitacion-diarios-descarga-pesca/0003_201301C31C3993.htm


According to Article 4.1 of Order AAA/627/2013 of April 15, establishing a Management Plan for vessels of the census of the Gulf of Cadiz national fishing ground226, and to Article 7.1 of Order AAA/1307/2013 of 1 July, establishing a Management Plan for the vessels of the census of the National Fishing Ground of the Cantabrian Sea and Northwest227, vessels of less than 10 meters´ overall length are not required to keep the fishing logbook and, consequently, control is conduct-ed through the sales notes in accordance with the provisions of article 16 of the Fisheries Control Regulation228.

For the purposes of monitoring, controlling and verifying the data, the GSF has different databases, among which are found those concerning information from logbooks and sales notes229. In order to verify the accuracy of the data reported in fishing logbooks, crosses are performed both within the database itself, as with the database of sales notes230 and the VMS database, especially thanks to the FMC web console, a tool through which the staff part of the Fisheries Inspection can obtain real-time location data of all fishing vessels integrated into the satellite-tracking system within their scope of activity231. If any inconsistency is detected during the verification process, it would lead to the opening of an administrative procedure. During 2013, an overall 1,259 resolutions concerning sanctioning procedures were adopted, and among them, the highest percentage corresponded to violations of Article 96.1 l) of Law 3/2001232, as worded prior to its amendment by Law 33/2014:

“Failure in filling the fishing logbook or the landing declaration or make changes to the data relat-ing to catches, fishing effort or non complying with the rules in force, as well as not carrying on board the referred logbook”.

All of these actions, in addition to not carrying the logbook on board or failing to submit the logbook to the competent authorities upon arrival at port within the established terms, are considered as serious infringements under the Spanish legal system233.

226 Article 4.1.b) Vessels not required to complete the On Board Electronic Logbook. For those vessels not required to keep the On Board Electronic Logbook (...), the Directorate General for Fisheries Management will conduct the monitoring of quotas consumption on the basis on the fishing logbook annotations, in the landing declaration and in the sales notes, when concerning vessels of 10 metres overall length, and exclusively on the basis of the data disclosed in the sales notes when the vessels have less than 10 metres´ overall length” (BOE No. 92, of 17.04.2013).227 Art. 7.1. “b) Vessels not required to complete the On Board Electronic Logbook. For those vessels not required to keep the On Board Electronic Logbook (...), the Directorate General for Fisheries Management will conduct the monitoring of quotas consumption on the basis on the fishing logbook annotations, in the landing declaration and in the sales notes, when concerning vessels of 10 metres overall length, and exclusively on the basis of the data disclosed in the sales notes when the vessels have less than 10 metres overall length”. It is necessary to stress that this Order has been declared void by the Spanish National High Court, whose ruling has been appealed on cassation by the MAGRAMA before the Supreme Court. (BOE No. 165, of 11.07.2013). This Order was declared void by the First Cham-ber of the Administrative Section of the National High Court (AN) through Judgment 87/2015, of 17 February. The MAGRAMA appealed the ruling on cassation on March 2015. Therefore, the AN ruling has not arrived to a final resolution yet and the Order is still in force. 228 Article 16 of the Fisheries Control Regulation states that “1. Each Member State shall monitor, on the basis of sampling,the activities of fishing vessels which are not subject to the requirements specified in Articles 14 and 15 in order to ensure compliance by these ves-sels with the rules of the common fisheries policy. (...) 4. By way of derogation (...) sales notes (...) shall be accepted as an alternative measure to sampling plans”.229 Spain Operational Programme for the EMFF (2014-2020).230 This database allows the monitoring of fishing quotas consumed by vessels under 10 meters, something which cannot be checked with the logbook to be exempt from this obligation for vessels less than 10 meters in length. Moreover, this junction is applied per vessel and thin, for certain species subject to TACs and quotas. This crossing can detect ships engaged sales without landing declaration and vice versa. Annual Report of Proceedings of MAGRAMA, 2009.231 2013 MAGRAMA Annual Report on Activities. Data obtained through the FMC web console are crossed with data concerning the days of activity and fishing zones where this takes place, in accordance with the provisions of the fishing logbook. This also allows for the detection of inconsistencies.232 2013 MAGRAMA Annual Report of the Spanish Fleet Activities.233 Art. 100.2, paragraphs b, c and e, Law 3/2001.


Transhipment Operations

Paragraph 16 of Article 4 of the Fisheries Control Regulation, defines transhipment as:

“The unloading of all or any fisheries or aquaculture products on board a vessel to another vessel”

Notwithstanding the above, paragraph 3 of Article 20 of the Fisheries Control Regulation provides that:

“1. Transhipments at sea shall be prohibited in Community waters. They shall be allowed only subject to an authorisation and to the conditions laid down in this Regulation in ports or places close to the shore of Member States designated for this purpose(...).

3. For the purposes of this Article, relocation, pair trawling activities and fishing operations involv-ing joint action by two or more Community fishing vessels shall not be considered as tranship-ment.”

In this line, Law 3/2001 requires the obtainment of an authorization from the General Sub-Direc-torate for Control and Inspection for vessels of third countries aiming to undertake transshipment operations in Spanish ports. Nevertheless, to masters of EU fishing vessels it is only required a prior communication234.

The requirement for an authorization for third country vessels wishing to tranship their fisheries products in EU ports brings cause of the IUU Regulation, which reinforces the European rules gov-erning the access of third country vessels to EU ports. In accordance with the IUU Regulation and the developing rules, as reflected in Regulation 1010/2009 of the Commission of 22 October 2009, setting detailed rules for the implementation of Regulation 1005/2008 of 29 September 2008235 (IUU Regulation Implementing Regulation) as a requirement for the introduction of fishery products in the EU, the masters of vessels must provide accurate and certified information on the legality of their catches236 as well as land their catches in ports designated for that purpose by the MS237, since it is through offshore transshipments of fish that the agents involved in IUU fishing easily conceal the illegal nature of their catches.

In order to facilitate the application of both regulations, the Ministry of Rural Environment and Rural and Marine Affairs, today known as MAGRAMA, adopted Order ARM/2077/2010, of July 27, for the control of access by third country vessels, transit operations, transhipment and import and export of fisheries products to prevent, deter and eliminate illegal, unreported and unregulated fishing, (O ARM/2077/2010)238 which regulates the conditions for a third country vessel to access EU ports239.234 Art. 39.6, Law 3/2001.235 DO L 280, of 27.10.2009.236 Art. 7, IUU Regulation.237 Art. 5, Ibid.238 BOE No. 185, of 31.07.2010.239 This report does not aim to analyze IUU fishing, which is extensively regulated by EU law and, in this case and for this specific obli-gation, through O ARM/2077/2010. Nevertheless, by way of summary, here there is a mention of the conditions to comply by masters of third countries fishing vessels if they wish to undertake transhipment operations in Spanish ports: firstly, the master of the fishing vessel or his representative shall complete the prior notification form established in Article 6.1 of the IUU Regulation (form contained in Annex II.A of the IUU Regulation Implementing Regulation) and submit it to the SGF and to the MAGRAMA offices of the province where the port of access is located, together with the attached documentation established in Article 4.f) of O ARM 2077/2010 at least three working days before the estimated time of arrival at the port or of four hours in case of fresh products. In case of keeping the catch certificate obtained in accordance with the requirements contained in Chapter III of the IUU Regulation, the simplified form of prior notification established in Annex IIB of the IUU Regulation Implementing Regulation shall be completed and submitted to the SGF and to the MAGRAMA offices of the province where the port of access is located, under the same conditions established above. Access to port will not be allowed until the reception of the corresponding authorization from the port competent authorities, upon receipt of a favourable report by the


Nevertheless, some plans contain more restrictive regulations, as is the case of the fishing plans concerning purse seine fishing mode of both Gulf of Cadiz240 and Northwest Cantabrian241 fishing grounds enclosed by the and the fishing grounds, where transshipments between vessels are explicitly prohibited. Another example of more restrictive transshipment regulations involves the blue-fin tuna fishery in the Eastern Atlantic and the Mediterranean, which will be so, precisely because it is a population subject to a multiannual plan242.

Transhipment Declaration

The obligation of the transhipment declaration provided in Article 21 of the Fisheries Control Regu-lation is reflected in Law 3/2001243. It requires that following a transhipment operation, the masters of EU fishing vessels involved in a transhipment operation must complete and submit before the GSF a declaration containing the information on the transhipment of fishery products undertaken on behalf of other vessels, or received from them, and keep this declaration in their possession.

The regulation of the transhipment declaration is very similar to the fishing logbook in printed for-mat, although they differ in some aspects:

Table 10: COMPLETION AND SUBMISSION OF THE TRANSHIPMENT DECLARATION IN PRINTED FORMAT

244 245

Individual subject to obligation

Masters of the donor or receiving fishing vessels, or their representatives on the master’s behalf, whose vessels have 10 meters length overall or more , provided that they are not obliged to electronic completion and transmission of data244 and that they are participating in a transhipment operation245.

SGF. Furthermore, transhipment operations will be only allowed to start upon receipt of a favourable report from the SGF. After the au-thorization receipt, the masters of the donor or receiving vessels, or their representatives, shall complete the form for pre-transhipment declaration established in Annex III.B of the IUU Regulation Implementing Regulation, and regulated in Article 8 of the IUU Regulation. These documents shall be submitted to the SGF and to the MAGRAMA offices of the province where the transhipment operations are intended to take place, at least four hours before the estimated time for starting the transhipment operations. In addition, catches will be only allowed to be transhipped in designated ports according to Agreement of the Council of Ministers of 20 May 2010, amending annex of Agreement of the Council of Ministers of 4 December 2009, on the designation of ports where transhipment and landing operations of fishery products are permitted, and regarding the provision of port services to third country vessels, and includes the port of Barbate (BOE No. 156 of 28.06.2010).240 Art. 6.3, Annex I, O AAA/627/2013.241 Art. 5.c, Annex I, O AAA/1307/2013.242 See part C, Section 2.3.1.1 of this document.243 Art. 35, Law 3/2001.244 Art. 29.1, Implementing Regulation. Fishing vessels which have an overall length between 10 and 12 meters are not required to electronically complete data on the transhipment declaration. Furthermore, vessels with less than 15 meters length overall, are neither required to transmit that data electronically, provided that they operate exclusively in Spanish territorial waters or never spend more than 24 hours at sea from the time of departure from port to their returning. See part C, Section 2.1.1.2 of this document.245 Art. 21.1, Fisheries Control Regulation.


246 247 248 249 250 251 252 253 Continuation

Content of the transshipment

declaration

� All quantities of each species transhipped or received above 50kg of live-weight equivalent246, expressed in kilograms in product weight247, broken down by type of product presentation248 or, where appropriate, by the num-ber of individuals. There should also be recorded separately the amounts or individuals that do not meet the applicable minimum size reference249. These amounts must correspond to the weight of the product once landed. That is, prior to the application of conversion factors by MS to calculate the equivalent live-weight. - The amounts stated in the declaration shall reflect the actual weight

of quantities transshipped250, provided that the products have been weighed on board vessels and that the receiver or transferor has adopt-ed a sampling plan251. Although Spain has adopted a sampling plan that was approved by the EC through Decision of July 31, 2013252, this possibility is not specified therein.

� The external identification number and the name of the transshipping and receiving fishing vessels;

� The FAO alpha-3 Code for each species and the relevant geographical area in which the catches were taken;

� The port of destination of the receiving fishing vessel; � The designated port of transhipment.

Models for transhipment declaration253

� North Atlantic Fisheries Organization (NAFO) Subzone1 and divisions V (a) and XIV of ICES: Annex IX, Implementing Regulation.

� Mediterranean Sea exclusively, provided that the masters of fishing vessels are not subject to the obligation to transmit the data electronically and when daily fishing trips are made in a single fishing zone: Annex VII, Implementing Regulation.

� All other areas: Annex VI, Implementing Regulation.

246 Ibid.247 Art. 2.2.b of Annex X of the Implementing Regulation indicates that if the measurement unit is different (for instance; baskets, boxes, etc.), an indication of the unit used shall be given and the weight of the unit in kilograms product weight.248 Article 48.1 of the Implementing Regulation defines “presentation” as “the form into which the fish is processed while on board of the fishing vessel and prior to landing, as described in Annex I”. That Annex assigns an alpha-3 code based on the product presentation (i.e. filleted, filleted skinned, filleted with skin and bones etc.) and provides a brief description of each one.249 Art. 7.4 Regulation 2015/82, replacing Article 21.2.c of the Fisheries Control Regulation.250 Annex X, paragraph 2.2 of the Implementing Regulation provides that “Where fisheries products that have been landed or tran-shipped, and if they have been weighed using systems approved by the competent authorities of Member States, on either the donor or receiving fishing vessel, then in such circumstances the actual weight of quantities landed or transhipped shall be indicated in kilograms product weight on the landing or transhipment declaration by species (...)”.251 Art. 60.3, Fisheries Control Regulation.252 Commission Implementing Decision of July 31, 2013 on the approval by the Commission of sampling plans, control plans and com-mon control programmes for the weighing of fisheries products in accordance with Articles 60 and 61 of Regulation (EC) No 1224/2009 (OJ L 206 of 02.08.2013).253 Art. 30, Implementing Regulation.


254 255 256 257 258 259 260 261 262 263 Continuation

Instructions for the completion

and submission of the transhipment

declaration254

� Entries must be legible and indelible. � In case of mistake, they shall be crossed out and the new correct entry must

be initialed by the master. � The master must initial each line. � The transhipment declaration shall be signed or initialed by the master or his

representative to certify that the data contained therein is correct. � In case of inspection, the declaration must include the signature, name and

address of the agent255.

Accuracy of data at the transhipment

declaration

Those responsible for the accuracy of the reported data will be the masters of fishing vessels and the transshipping and receiving vessels respectively256.

In the estimates of fish kilograms transhipped or received and recorded in the declaration, a tolerance margin of 10% is allowed for all species.

If there is a difference between the quantities listed in the transhipment decla-ration from the transshipping vessel to the receiving vessel, the higher quantity shall be considered to have been transhipped257.

Deadlines for submission258

To the SGCI

The originals of the transhipment declaration shall be submitted, at the latest, within 48 hours after the completion of the transshipment: � When the transfer has taken place in a port or place close to the Spanish

shore259. � When the transfer has taken place in a port or place close to the coast of

another MS260. � When the transfer has taken place in a port or place close to the shore of a

third country261. � When the transfer has occurred on the high seas. � When no catch is landed262.

In the case that the transhipment declaration has been made in a different model than that referred to in Annex VI of the Regulation, as required by a third country or a RFMO, they should hand over a copy of the declaration, at the latest, within 48 hours after transhipment263.

254 Art. 31, Ibid.255 Art. 2.2, Annex X, Ibid.256 Art. 21.5, Fisheries Control Regulation.257 Art. 53, Implementing Regulation.258 These deadlines apply in the event that a Spanish vessel is involved in a transhipment operation.259 Art. 32.1, Implementing Regulation.260 Art. 32.3, Ibid.261 Art. 32.4, Ibid.262 Art. 32.2, Ibid.263 Art. 32.5, Ibid.


264 265 Continuation

To the competent authorities of other MS

In the event that the transhipment has taken place in a port or place close to the shore of another MS, the first copy of the transhipment declaration must be submitted no later than 48 hours after the transhipment264.

To the masters or representatives of the transshipping and receiving ves-sels

At the end of a transhipment operation, the master or representative of the donor vessel shall give a copy of the transhipment declaration to the master or representative of the receiving vessel, and vice versa265.


Landing declaration

The landing declaration is the document that every master of a Spanish fishing vessel with 10 metres length overall or more or his representative, shall complete indicating specifically all quanti-ties of each species landed266. In the case of Spanish fishing vessels, the landing declaration shall be submitted to the SGCI and to the MS authorities of the place of landing, if different.

To complete this declaration, all fishery products267 which are landed, shall be weighed as required by the Spanish Sampling Plan268 at the time of landing, before they are stored, transported or resold269. It is important to note that the Fisheries Control Regulation allows the weighing to take place on board the fishing vessel when there is a sampling plan, provided that it is authorized by the competent authorities, an option that has not been implemented by Spain270. The quantities reflected in the landing declaration shall correspond to those obtained by the methods reflected in the sampling plan271.

This regulation on the weighing of landings provided by the Fisheries Control Regulation, responds to a comment made by the ECA in its Special Report No. 7/2007 on control, inspection and sanc-tion. It stated that, as regulated by Regulation (EEC) 2847/93, there were numerous inaccuracies in the declarations.This demonstrated one of the many deficiencies of national catch registration sys-tems. This was due, inter alia, to the fact that the Council had been excessively flexible in regulating this aspect and, for example, did not consider the weighing of catches as a general obligation, but applied only in specific fisheries272.

264 Art. 32.3, Ibid.265 Art. 34, Ibid.266 Art. 23.1, Fisheries Control Regulation.267 Article 5.a of Regulation 1379/2013 of the European Parliament and the Council of 11 December 2013 on the common organization of the markets in fishery and aquaculture products defines “fishery products” as “aquatic organisms resulting from any fishing activity or products derived therefrom, as listed in Annex I”.268 This Sampling Plan will be in force until 31 July 2016. During that period, the EC needs to supervise the implementation of the plan to ensure that weighing of fishery products is performed correctly. To this end, the EC requested the Spanish State to send a report on the implementation of the plan before 1 April 2014. There is no evidence about such report.269 Art. 60.2, Fisheries Control Regulation. 270 Art. 60.3, Fisheries Control Regulation provides that “By way of derogation from paragraph 2, Member States may permit fisheries products to be weighed on board the fishing vessel subject to a sampling plan as referred to in paragraph 1”.271 The sampling plan shall apply to all species, except bluefin tuna, monkfish, albacore tuna, bigeye tuna, bonito and swordfish, whose amounts should be weighed fully.272 Part 21.b, ECA Special Report N. 7/2007.


In response to this report, the EC reflected in the Fisheries Control Regulation the obligation to establish a system that would determine the weight of fish landed, thus strengthening the monitor-ing and control of quota consumption.

Spain has reflected the obligation on the landing declaration in Article 34 of Law 3/2001, as follows:

“1. Masters of vessels landing catches in Spanish territory must submit to the competent authori-ties a landing declaration, which should reflect the quantities landed of each species, the area of origin and further data established by way of regulation.

2. Masters of Spanish vessels landing fishery products outside national territory are obliged to communicate the corresponding data to the Ministry of Agriculture, Fisheries and Food in the manner established by way of regulation.”.

Until regulatory development comes up on this matter, the provisions contained in EU regulations will apply.

Table 11: COMPLETION AND SUBMISSION OF THE LANDING DECLARATION IN PRINTED FORMAT

273 274 275 276 277 278 279 280 281 282

Individuals subject to the obligation

� Masters of Spanish fishing vessels of 10 metres length overall or more273, provided they are not subject to the obligation to complete an submit data electronically274 and that have landed their catches in a Spanish port275, in a port of another MS276, or in a third country port277.

� Representatives of the master are also entitled to complete and submit the landing declaration278.

� Catches shall always be allocated to the vessel which has landed the fishery products, regardless of the number of EU fishing vessels involved in the operation279.

Content of the landing declaration280

� The external identification number and name of the fishing vessel. � The FAO alpha-3 code of each species and the relevant geographical

area in which the catches were taken. � All quantities of each species landed expressed in kilograms of prod-

uct weight and broken down by type of product presentation or, where appropriate, the number of individuals. The quantities or individuals that do not meet the minimum reference size should also be recorded sepa-rately281. These quantities must correspond to the weight of the product once landed; that is, prior to the application of conversion factors by MS to calculate the equivalent live-weight282.

� The port of landing.

273 Art. 23.1, Fisheries Control Regulation.274 Art. 29, Implementing Regulation.275 Art. 32.1, Ibid.276 Art. 32.2, Ibid.277 Art. 32.3, Ibid.278 Art. 29.1, Implementing Regulation.279 Article 55 Ibid. provides that “Without prejudice to special rules in the case of fishing operations involving two or more EU fishing vessels: - from different Member States, or - from the same Member State but where the catches are landed in a Member States of which they do not fly the flag, the landed catch shall be attributed to the EU fishing vessel landing the fisheries products”.280 Art. 23.2, Fisheries Control Regulation.281 Art. 7.5, Regulation 2015/182, which replaces Article23.2.c of the Fisheries Common Regulation.282 Art. 2.2.d, Annex X, Implementing Regulation.


283 284 285 286 287 288 289 290 291 292 Continuation

Models for the landing declaration283

� NAFO Subarea 1 and divisions ICES V (a) and XIV: Annex IX Implement-ing Regulation.

� Mediterranean Sea exclusively, provided that the masters of fishing ves-sels are not subject to the obligation to transmit the data electronically and when daily fishing trips are made in a single fishing zone: Annex VII, Implementing Regulation. All other areas: Annex VI Implementing Regulation.

Instructions for comple-tion and submission of landing declarations284

� Entries must be legible and indelible. � They shall be crossed out and the new correct entry must be initialed by

the master. � The master must initial each line. � Each page of the landing declaration shall be signed by the master or

his representative to certify that the data contained therein is correct, before delivery285.

� In case of inspection, the declaration must include the signature, name and address of the agent286.

Accuracy of data at the landing declaration

The master shall be responsible for the accuracy of the reported data287.

Deadlines for submission

To the SGCI

The masters of Spanish fishing vessels, or their representatives, must pres-ent the originals of the landing declaration at the latest within 48 hours after it occurred: � When the landing has taken place in a Spanish port288. � When the landing has taken place in the port of another MS289. � When the landing has taken place in the port of a third country290.

In the case that the landing declaration has been made in a different model than that referred to in Annex VI of the Regulation, as required by a third country or RFMO, a copy of the declaration should be presented no later than 48 hours after the landing291.

To the Competent Authorities of other MS

In the event that the Spanish vessel has made the landing in a port of another MS, they must submit the first copy of the landing declaration, no later than 48 hours after it occurs292.


For those vessels that are not required to complete a landing declaration in printed or electronic format293, Article 25 of the Fisheries Control Regulation provides for the control of fishing activities through sampling plans or, if not adopted, through sales notes. In the Spanish case, we were not 283 Art. 30, Ibid.284 Art. 31, Ibid.285 Art. 35, Ibid.286 Art. 2.2, Annex X, Ibid.287 Art. 23.4, Fisheries Control Regulation.288 Art. 32.1, Implementing Regulation.289 Art. 32.3 Ibid.290 Art. 32.4, Ibid.291 Art. 32.5, Ibid.292 Art. 32.3, Ibid.293 The masters of vessels with 12 metres length overall or more shall submit the landing declaration in electronic format. See Section C, point 2.1.1.2 of this document.


able to identify the existence of such sampling plans, so we understand that the control is performed by means of sales notes for all vessels with less than 10 metres length overall, as it is regulated for vessels of both the Gulf of Cadiz294 and the Cantabrian and Northwest295 fishing grounds.

Likewise with the rest of the printed documents, the Spanish legal system provides the regulatory development of this obligation. Until such development takes place, it must be in compliance with the provisions of the EU regulations.

2.1.1.2. Fishing logbook, transshipment declaration and landing declaration in electronic format.

In order to comply with the regulatory framework established by Regulation (EC) 2371/2002296, the Council adopted Regulation (EC) 1966/2006 of 21 December 2006 on electronic recording and reporting of fishing activities and on means of remote sensing297, which provided for the partial and gradual replacement of paper declarations by means of an electronic filing system, which would be gradually incorporated, depending on the length of the vessel and starting on 1 January 2010298.

This requirement was imposed in order to achieve better control of fishing activities. Transmission by electronic means would ensure greater accuracy of information, as well as greater speed and reliability in transmitting and verifying data299.

With the entry into force of the Fisheries Control Regulation and its Implementing Regulation, all previous legislation concerning the electronic recording and reporting of fishing activities was repealed and, as a general rule, the obligation was extended from 1 January 2012 for vessels with 12 meters length overall or more.

Order ARM/3145/2009 of 19 November 19 which regulated the implementation of the register and electronic transmission of Spanish fishing vessels (O ARM/3145/2009), regulates the adoption of all internal measures to ensure that masters of fishing vessels whose overall length is equal to or greater than 12 meters have installed and carry on board the vessel during the entire duration of a trip a device for the electronic collection and transmission of fishing activity data. This consists of a computer with a transceiver device connected thereto300. The computer must be equipped with a computer application known in Spanish as “DEA”. Through this equipment, information regarding fishing activity data301 should be recorded and transmitted, as required by both the Fisheries Con-trol Regulation and Implementing Regulation.

Notwithstanding this obligation, Articles 15.4, 22.3 and 24.3 of the Fisheries Control Regulation also

294 Art. 4.1.b), O AAA/627/2013.295 Art. 7.1.b), O AAA/1307/2013.296 Article 22.1.c of Regulation 2371/2002 required the Council to decide in 2004 on the obligation to transfer electronically such data concerning fishing activities, including landings and transhipments, based on the assessment of the different pilot projects carried out by MS, in collaboration with the Commission, before 1 June 2004.297 OJ L 409, of 30.12.2006.298 Regulation (EC) 1077/2008 of 3 November 2008 laying down detailed rules for the implementation of Council Regulation (EC) No 1966/2006 on electronic recording and reporting of fishing activities and on means of remote sensing and repealing Regulation (EC) No 1566/2007 provides in Article 1.1 that the obligation to register and transmit electronically data relating to the fishing logbook, tranship-ment declarations and landing declarations shall apply to “(a) Community fishing vessels exceeding 24 metres length overall, as from 1 January 2010; (b) Community fishing vessels exceeding 15 metres length overall, as from 1 July 2011(...)”. (OJ L 295 of 04.11.2008, p.3). 299 Setting or approving the rules for implementing Regulation 1966/2006 in order to improve control deficiencies relating to the data contained in these statements was one of the recommendations made by the ECA in its Special Report N. 7/2007 (p .21).300 Art. 2, O ARM/3145/2009.301 Art. 1, O ARM/3145/2009.


allow MS to be exempted from the obligation to electronically transmit the data referred to these documents, to fishing vessels with less than 15 meters length overall if:

a) They operate exclusively within waters of their flag MS, or

b) They never spend more than 24 hours at sea, from the time they leave the port to the time they return.

Spain decided to adopt this exemption and, therefore, vessels complying with these requirements will not be obliged to comply with the electronic recording and transmission of fishing activity data302.

According to the wording of the O ARM/3145/2009303, DEA transmissions should be made to the DG for Fisheries and Aquaculture Resources (DGRPA)304, which is the single body provided under Article 46.1 of the Implementing Regulation305. This Order was issued by the Ministry of Environment and Rural and Marine Affairs, whose structure attributed to the DGRPA functions of inspection, monitoring and control of fishing activities and the coordination of outreach services in this area306. Nevertheless, with the restructuring of ministerial departments and the emergence of the current MAGRAMA307, the SGCI within DG for Fisheries Management took over these responsibilities308. Given the above, the FMC attached to the Directorate General for Control and Inspection309 receives the DEA data, as stated in the 2013 MAGRAMA Annual Report310. Therefore, although the current legislation indicates to send all transmissions to the DGRPA, they should be sent to the Communi-cations Center.

Transmissions must be carried out in any case in accordance with the format determined by each MS311. In the Spanish case, this format is regulated by O ARM/3145/2009:

Before initial communications start

� Send a “Message of Registration” from the vessels’ owner or the representative to the Communications Center, with the information contained in Annex III of the O

302 Art. 1.2.b, O ARM/3145/2009.303 BOE No. 283, of 24.11.2009. This Order has been subject to a number of amendments, the latter was produced by Order AAA/1359/2012 (BOE No. 151 of 25.06.2012).304 Article 5.1, Ibid. 305 Art. 46.1 of the Implementing Regulation provides that “In each Member State, the single authority referred to in Article 5 (5) of the Control Regulation shall be responsible for transmitting, receiving, managing and processing all data covered by this Chapter”.“Article 5.5 of the Fisheries Control Regulation sets out: In each Member State, a single authority shall coordinate the control activities of all national control authorities. It shall also be responsible for coordinating the collection, treatment and certification of information on fishing activities and for reporting to, cooperating with and ensuring the transmission of information to the Commission, the Community Fisheries Control Agency established in accordance with Regulation (EC) No 768/2005, other Member States and, where appropriate, third countries”. 306 Art. 18.1.m, RD 1443/2010, of 5 November, on the development of the basic organic structure of the Ministry of Environment and Rural and Marine Affairs (BOE No. 269, of 06.11.2010).307 RD 1823/2011 of 21 December, regarding the restructuring of the government departments. (BOE No. 307 of 22.12.2011).308 Article 17.1.s in relation to Art. 17.2.c of RD 401/2012, of 17 February, developing the organic structure of the Ministry of Agriculture, Food and Environment (BOE No.42, of 18.02.12) states that the SGCI will undertake functions concerning “s) the integral control of the fishing activity in all its production, import and marketing chain, in order that the SGF complies with all the obligations derived from the Common Fisheries Policy”.309 The Communications Center which is part of the SGCI counts with specialized staff on a call center working 24 hours a day, 7 days a week, helping to solve all issues concerning registration raised by Spanish vessels. 310 2013 MAGRAMA Annual Report, p. 1326. Available online at: http://www.magrama.gob.es/es/ministerio/servicios/publicaciones/m_pesca_tcm7-347421.pdf311 Art. 37, Implementing Regulation.

http://www.magrama.gob.es/es/ministerio/servicios/publicaciones/m_pesca_tcm7-347421.pdf



ARM/3145/2009312. Should there be any changes in this data, it shall be communicated immediately to the Communications Center313.

� Acknowledgement from the Communications Center and sending of the equipment reg-istration certificate in the communications system314.

Before the start of each fishing trip

� Sending the captain’s “Starting Fishing Trip” message to the Communications Center before leaving the port and starting the fishing trip315.

� Acknowledgement from the Communications Center, and allocation of the “fishing trip code”316.

Start of the Fishing Trip

� Data transmission in the following cases317:

312 Annex III O ARM/3145/2009: “1. Identification of the owner: a) Name and address. b) ID number. c) VAT number. d) Address. e) Population. f) Province. g) Postcode. h) Telephone. i) Mobile Phone. j) Email address. 2. Vessel identification a) Name. b) Registration/sheet. c) CFPO Code. d) GRT/GT. e) Overall length. f) Length. g) Type of vessel. h) Base port. i) Fishing mode. j) Fishing ground. k) Guild/Association. 3. Identification of the computer: a) Operative system. b) Memory. 4. Identification of transceiver equipment: a) com-pany manufacturer. b) Brand and model. c) Serial number. 5. Installation: a) Installation company. b) Date of installation. c) Date of entry into service. 6. Certification of the installation or maintenance company, as appropriate, in accordance with the installation requirements set out in Article 2.3”.313 Art. 6.1, Ibid.314 Ibid.315 Art. 6.2, Ibid.316 Ibid. This same Article provides that “the fishing trip code will serve as unique identifier of the vessel and the fishing trip in question. It will be used during the fishing trip for the Exchange of information of the fisheries activity with the Directorate General for Fisheries and Aquaculture Resources”. 317 The content of the electronic transmissions will be the same as for the fishing logbook, transhipment declaration and landing decla-ration in printed format. The legislation regarding the accuracy of the data referring to tolerance margins, or attribution of landed catches in case of joint fishing operations will also be the same.


Table 12: TRANSMISSION OF DATA FROM DEA, TRANSHIPMENT DECLARACION AND LANDING DECLARATION

318 319 320 321 322 323 324 325

Fishing logbookTranshipment

declarationLanding

declaration

Once a day and always before 24:00 GMT, even if no catches have been made318. If the vessel is in port, does not carry fishery products on board and the master has complied with the obligation of filing the corresponding landing declaration, the transmissions of such data may be suspended upon notice to the FMC and provided that the transmission is restarted once the vessel leaves port. The previous, unless the vessel has a VMS device, in which case no such notice shall be required319.

In addition, it should be transmitted not only the data concerning the catches taken320, but also all data relating to the fishing logbook321: � After the last fishing operation. � Before entering the port. � In case of inspection at sea. � When required by the Communications Center.

At the latest, with-in 48 hours after the transhipment takes place322.

This provision is in non conformity with the obligation established under the Fisheries Control Regulation, since the latter pro-vides for a period of 24 hours from the completion of the tran-shipment operation for the transmission of the data concerning the declaration323.

Within 48 hours after the landing324.

The deadline set by the Fisheries Control Regulation for the transmission of the information referred to in this declara-tion is 24 hours. So this provision does not comply with EU rules325.


� Response message and acknowledgment when performing any of the previous trans-missions, which should be kept on the vessel to prove that communications are being done correctly326 until the end of the fishing trip.

� Updating of data regarding the fishing activity of the vessel by the Communications Center327.

� In case the operations were carried out in the waters of another MS, the Communications Center will forward all information received by its vessels to the single body of the MS in question328.

� The master of the vessel will have the possibility to correct the data transmitted from the fishing logbook or transhipment declaration until the communication corresponding to the last fishing operation and before entering the port329. While EU rules do not provide

318 Art. 7.1, O ARM/3145/2009.319 Art. 47.4, Implementing Regulation.320 Art. 7.2, O ARM/3145/2009.321 Art. 47.1, Implementing Regulation.322 Art. 7.3, O ARM/3145/2009.323 Art. 22.1, Fisheries Control Regulation.324 Art. 7.4, O ARM/3145/2009.325 Art. 24.1, Fisheries Control Regulation.326 Art. 7.7, Order ARM/3145/2009.327 Art. 7.8, Ibid.328 Art. 7.9, Ibid.329 Art. 8.1, Ibid.


this aspect, corrections to data contained in the landing declarations will be allowed, provided that they are justified330.

� The possibility to suspend the connection of the electronic recording equipment and data transmission, provided that the master confirms that the Communications Center has received the data corresponding to the landing declaration or transhipment, as the case may be. In the event that the vessel is in port and does not carry fish on board once the fishing trip has ended, the suspension shall be made after notification to the Communications Center with the obligation to restart the connection before leaving the port again331.

According to the EU Regulations332, in the event of failure or non-functioning ERS, the master shall inform the his representatives or the vessel´s owner from the time the event was detected or from notification of the event333. These shall be responsible for transmitting to the Communications Cen-tre the data relating to the fishing logbook, the transhipment declaration and landing declaration using an alternative DEA computer application, which must be installed on land in a computer belonging to the vessel´s owner or a representative with an Internet connection. This equipment will be different for all applicable vessels334.

As shown in the Table below, the timelines in which the data regarding the transhipment and the landing declarations must be transmitted are regulated differently in the EU legislation and in Order ARM/3145/2009. This is most likely due to the fact that O ARM/3145/2009 is previous to the Imple-menting Regulation. In any case, the EU legislation prevails over national law.

If a mistake has been detected before the beginning of the fishing trip, the vessel cannot leave port until the Communication Center has verified that the computer is working correctly again. The latter, unless the master or owner of the vessel ensures the transmission of data by another alternative route and this is authorized by the Communications Center335.

330 Art. 8.2, Ibid.331 Art. 2.7, Ibid.332 Art. 39, Implementing Regulation.333 Art. 9.1, O ARM/3145/2009.334 Art. 6.1.1.2, Resolution of the General Secretariat of the Sea which develops Article 3.3 on the registration of the computer applica-tion DEA in the Directorate General for Fisheries Resources, and establishes actions to be followed in case of failure of communication as established in Article 9 of the Order ARM/314/2009 of 19 November, which regulates the introduction of electronic recording and transmission of data on the activity of Spanish fishing vessels.335 Art. 9.4, O ARM3145/2009.


Table 13: FREQUENCY OF DATA TRANSMISSION FROM FISHING LOGBOOKS, TRANSHIP-MENT DECLARATIONS, AND LANDING DECLARATIONS IN ELECTRONIC FORM ON FAILURE OR NON-FUNCTIONING OF ELECTRONIC RECORDING AND REPORTING SYSTEMS

336 337

Implementing Regulation336 Order ARM/3145/2009337

Fishing Logbook

� Once a day (not later than 24.00 hours).

� When required by the competent authority of the flag MS.

� Immediately after the last fishing operation.

� Before entering port. � When an inspection takes place at

sea. � When determined by EU regulations.


� When required by the Communica-tions Center.

� Immediately after the last fishing operation.


sea. � When determined by EU regula-

tions.

Transhipment Declaration



� Immediately after completion of the transhipment.


sea. � When determined by EU regulations.

� Within 48 hours following the trans-shipment operation.

Landing Declaration



� When determined by EU regulations.

� Within the following 48 hours follow-ing the landing operation.


In the event that the vessel is found to be fishing in the waters of a different MS at the time of detection of the failure, the Communications Center, or if not possible, the master, the owner or the representative shall communicate the situation and send the mandatory data to the competent authorities of the corresponding MS338. In case the Communications Center does not receive such information, for whatever reason, the Center will prohibit the vessel in question from fishing in those waters339.

In case that the failures in communication occur more than three times over a period of 12 months, the Communications Center shall request the vessel´s owner to verify the transmission equipment and data collection340 and, where necessary, replace or repair any equipment prior to authorizing the vessel341.

336 Art. 39.1, Implementing Regulation.337 Art. 9.1, Order ARM/3145/2009.338 Art. 9.2 y 9.6, Ibid.339 Art. 9.7, Ibid.340 Art. 9.5, Ibid.341 Art. 39.5, Implementing Regulation.


The development of communications between Spanish fishing vessels and the Communication Center through the DEA has led to the creation of an automatic information342 exchange system in Spain. This has facilitated knowledge in real time of all the information concerning both fishing activ-ities of vessels flying the Spanish flag and/or unloading in waters of other MS, as well as vessels of other MS fishing and/or unloading in Spanish waters343. This information exchange, which must at least cover the data within the period from the last departure from port to the end of landing344, facilitates the coordination of actions between MS and also with third countries which they have fishery agreements. It also improves the inspection activities345 since when verifying the accuracy of the data, the MS conducting an inspection outside their jurisdictional waters346 can access to data of the Spanish vessel concerning at least the period between the last departure from the port to the time where the data is requested347. Also, the use of new technologies and the computerization of the processes optimize the efficiency of the control activities.

This exchange of information must take place through a secure and permanent connection to the Internet. The data received which should be used only for official purposes, should be recorded and stored in computerized databases for at least three years348.

The master of the vessel required to use the DEA and engaged in fishing stocks subject to a mul-tiannual plan349 shall give prior notice at least four hours before the estimated time of arrival at port and shall notify the SGCI of the following information350 in the notice:

� External identification number and name of the fishing vessel.

� Name of the destination port and the purpose of the scale, such as landing, transhipment or access to services.

� Dates of the fishing trip and the relevant geographical areas in which the catches were taken.

� Date and estimated time of arrival in port.

� Quantity of each species recorded in the fishing logbook, including those that do not meet the minimum reference size of application for the purposes of conservation, as a separate annotation351.

� Quantity of each species to be landed or transhipped, including those that do not meet the minimum reference size of application for purposes of conservation, as a separate annotation352.

While Spain has accepted some of the multiannual plans adopted by the EU before the approval of

342 2013 MAGRAMA Annual Report. 343 Art. 44, Implementing Regulation.344 Art. 44.4, Ibid.345 Art. 44.2, Ibid.346 Art. 44.2, Ibid.347 Art. 44.4, Ibid.348 Art. 45, Ibid.349 Art. 4.24 of the Fisheries Control Regulation defines “multiannual plans” as ”recovery plans as referred to in Article 5 of Regulation (EC) No. 2371/2002, management plans as referred to in Article 6 of Regulation (EC) No 2371/2002 as well as other Community pro-visions adopted on the basis of Article 37 of the Treaty and providing for specific management measures for particular fish stocks for several years”.350 Art. 17, Fisheries Control Regulation.351 Wording given by Art. 7.3 of Regulation (EU) 2015/82, which replaces Article 17.1.e of the Fisheries Control Regulation.352 Wording given by Art. 7.3 of Regulation (EU) 2015/812, which replaces Article 17.1.f) of the Fisheries Control Regulation.


the new CFP353, it has placed special emphasis on the development of its own regulations for blue-fin tuna, through different policy instruments, including Order AAA/642/2013, of 18 April, regulating the blue-fin tuna fishery in the eastern Atlantic and Mediterranean354.

This order regulates the obligation to inform the prior notice of arrival as follows:

Table 14: REGULATION FOR THE CONTROL IN PORT OF THE BLUEFIN TUNA FISHERY355 356 357 358

Landing in Span-ish State port355

� Advance notice of arrival to the GSF, four hours before the estimated time of arrival containing at least the following information: - Estimated time of arrival, - Estimated quantity of blue-fin tuna retained on board, and,

� Information on the geographical area where the catch was taken. � Opportunity to modify the estimated quantities of transported tuna in the event

that the fishing ground is less than four hours away from the port of arrival356.

Landing in the port of another

MS357

� Advance notice of arrival to the GSF, four hours before the estimated time, con-taining the information specified in Article 13.3 of the O AAA/642/2013.

� Advance notice of arrival to the competent authority of the MS where landing takes place in the terms indicated by that MS.

� Possibility to modify the estimated quantities of transported tuna in the case that the fishery is less than four hours away from the port of arrival.

Landing in a third country

port358

� Advance notice of arrival to the GSF, four hours before the estimated time, con-taining the information specified in Article 13.3 of the O AAA/642/2013.

� Advance notice of arrival to the competent authority of the third country where landing takes place, in the manner indicated therein.

� Possibility to modify the estimated quantities of transported tuna in the case that the fishery is less than four hours away from the port of arrival.

� Immediate shipment via fax to the SGCI, of the copy of a sheet from the fishing logbook containing all the landing data.


This regulation differs from that of Article 17 of the Fisheries Control Regulation in two aspects:

� It only regulates the minimum content that must be included in the notice of arrival, although all the information reflected in the Fisheries Control Regulation must be includ-ed.

� It transfers from the competent authorities of the flag MS to the master the obligation to provide notice of arrival in case of landing in a country different than the flag state359.

This notice of arrival shall also be done in the case of landing of more than 10 tonnes of herring, mackerel or horse mackerel, which are pelagic species subject to special monitoring of entry into

353 The first proposal of multiannual plan after the entry into force of the new CFP is about fisheries management of several populations in the Baltic Sea. 354 BOE No. 95, of 20.04.2013. This Order was modified by Order AAA/339/2014, of 6 March. (BOE No. 58, of 08.03.2014).355 Art. 13.3, O AAA/642/2013.356 Art. 13.4, Ibid.357 Art. 13.5, Ibid.358 Art. 13.6, Ibid.359 Art. 17.2, Fisheries Control Regulation.


port360. In Spain this is regulated in Article 4 of Order ARM/2017/2011 of 11 July, establishing control of landings of more than 10 tonnes of herring, mackerel and horse mackerel361.362

Control of the utilization of fishing opportunities

Given the analysis, it can be stated that the obligation regarding the completion and submission of the fishing logbook, transhipment declaration and landing declaration in paper format is not reflected in a detailed manner in Spanish law, as it is still planned to carry out its regulatory development362. However, although we were unable to identify the existence of a national policy instrument to develop this obligation, the requirements for the completion and transmission of these documents have been developed in detail by European law and are directly applicable in Spain. Therefore masters of fishing ves-sels flying the Spanish flag must respect them.

As for the obligation to rely on an authorization for being able to carry out any tranship-ment operations, Law 3/2001 only applies to vessels from third countries. EU vessels must only submit prior communication to the SGCI. The prohibition to undertake trans-shipments at sea is correctly reflected in Spanish law, and even in some cases, is more restrictive, i.e.: expressly prohibiting transhipment between vessels in certain fishing plans.

The obligations concerning the electronic completion and transmission of fishing log-book data, the transhipment declaration or the landing declaration are also correctly reflected in the Spanish legal system. However, we have identified some obligations that are regulated differently with respect to the requirements of EU law:

� In case of landing in a country different than Spain, the obligation to send the prior notice of arrival is transferred from the Spanish competent authorities to the master.

� The deadlines for the submission of transhipment and landing declarations are fixed within 48 hours after the completion of said transhipment or landing, while the EU legislation sets a deadline within 24 hours.

� In case of failure or non-functioning ERS, Spanish legislation states that transhipment and landing declarations must be transmitted within 48 hours after the completion of the transhipment or landing operation, while EU regulations require, among other assumptions, transmissions to be performed once a day.

2.1.2. conTrol of The fishing efforT

Both the CFPR and Law 3/2001 offer similar definitions of fishing effort. Article 4.21 of the CFPR defines it as “the product of the capacity and the activity of a fishing vessel; for a group of vessels it is the sum of the fishing effort of all vessels in the group”. Meanwhile, Article 2 of Law 3/2001

360 Art. 80, Implementing Regulation.361 BOE No. 171, of 18.07.2011.362 Arts. 33-35, Law 3/2001.


defines it as “the intensity with which fishing activity is exercised, measured as the ability of a ves-sel, depending on its power and tonnage, the time of activity and other parameters that may affect their fishing intensity. Fishing effort developed by a group of vessels is the sum of the effort exer-cised by each of them”.

Within the CFP, fishing effort restrictions are measures that have been mainly introduced in relation to the management of stocks or groups of stocks, and generally, depending on the area, to adapt the effort of the fishing fleets to the status of fishery resources363.

Nevertheless, the management of a particular fishing area or population cannot be based exclu-sively on the fishing effort because, as this is the result of multiplying capacity (Gross Tonnage GT or kW) by an activity (days at sea) its reduction could be achieved by only reducing one of the fac-tors, i.e.: if the activity is reduced, it could be offset by increasing the productivity of fishing activities by investing in technological equipment, such as sonar systems or more efficient gears. Thus, in practice, fishing effort would be reduced, but however, the effective fishing capacity of the vessel in question would increase364.

To avoid these consequences, the CFPR introduced maximum fishing capacity for the fleets of S365, replacing the provision of Regulation 2371/2002 which only regulated the existence of reference values of fishing capacity of EU vessels366.

The management of fishing effort in a particular geographical area is based primarily on the dis-tribution of quotas and fishing opportunities367 between fishing vessels carrying out activities in that area368, and are implemented through various measures aimed at combining the limitations of capacity of the vessel and the time they spend at sea369.

Although the most obvious way to control fishing effort through direct measures, (i.e.: directly regu-lating the catch or the amount of effort), there are indirect methods such as the regulation of mesh or establishing closed seasons or area that is frequently used370.

Law 3/2001371, provides for the following measures regulating fishing effort:

363 Art. 3.c), Law 3/2001. 364 Section 114, ECA Special Report No. 7/2007, on the control, inspection and sanction systems relating to the rules on conservation of Community fisheries resources together with the Commission’s replies (OJ C 317, of 28.12.2007).365 Art. 22.7, CFPR. The maximum capacity for each MS, expressed in GT and kW, are reflected in Annex II of the same law.366 Article 12.1 of Regulation 2371/2002 provided that “1. The Commission shall establish for each Member State reference levels expressed in GT and kW for the total fishing capacity of Community fishing vessels flying the flag of that Member State in accordance with the procedure set out in paragraph 2 of Article 30. reference levels shall be the sum of the objectives of the multiannual guidance program for the period 1997-2002 for each segment as fixed for December 31, 2002 under Decision 97/413/EC as”. 367 Article 2 Law 3/2001 defines “fishing opportunities” as “catches, fishing effort or time in an area that corresponded to a vessel under the distribution based on the criteria established in this law”.368 The preamble to the LPME provides that “(...) such distribution has traditionally made on the basis of objective criteria of regularity in the fishery and the suitability of the vessel for the type of fishing in question, without prejudice to assess other circumstances which can occur on the ship, the situation of the fishery and the state of its resources, such possibilities can be attributed to vessel or group of vessels belonging to one or more census and for certain areas or fisheries, while generally encrypted catches or fishing time, without prejudice to use another sole discretion of fisheries policy (...)”.369 Article 26.5, Fisheries Control Regulation provides that “Member States shall regulate the fishing effort of their fleet in geographical areas subject to a regime of fishing effort (...) by taking appropriate action in cases that are about to measures reach the maximum allowable fishing effort in order to ensure that the fishing effort does not exceed the limits”.370 Beddington, J.R. and R. B. Rettig, Approaches to the regulation of fishing effort. FAO FisheriesTechnical Paper, 1984. Accessible online at: http://fao.org/docrep/003/x6846s/X6846S00.htm#toc.371 Art. 8, LPME.

http://fao.org/docrep/003/x6846s/X6846S00.htm#toc


� Limiting the number of vessels in relation to the incidence of its characteristics in the fishing effort of the entire fleet in a fishery,

� Limitation of time of the fishing activity,

� The closure of the fishery,

� The limitation of networks, arts dimension, number of hooks or any other measure used in the arts that can regulate the fishing effort deployed by each vessel;

� The reduction of fishing capacity.

These measures have materialized through the adoption of different regulatory instruments:

Table 15: REGULATORY INSTRUMENTS GOVERNING THE CONTROL OF FISHING EFFORT IN SPAIN

372 373 374 375 376 377 378 379 380

Indirect measures(establishment of closed areas, defining the closed area or time during which fishing is prohibited and fishing gear for the ban, either for specific species is established, well unspeci-fied species).

� Fisheries plan for certain fixed gears in the maritime provinces of Gijón, Santander, Gipuzkoa, and Bizkaia372.

� Fishing plan for the form of bottom trawling in the Cantabrian Sea and Northwest373.

� Limitations on the exercise of certain fixed gear fishing in certain areas of the Cantabrian fishing area and Northwest374.

� Plan Octopus fishing in the fishing area in the Gulf of Cadiz375. � Plan for fishing lobster pot, in particular area of Eastern Cantabria376. � Fishery plan with snare gear in the external waters of the Island of

Fuerteventura377. � Different Orders for which temporary closures, i.e.: Order APA/831/2005

of 30 March, a temporary ban on fishing “raor ‘and’ Verderol” in the offshore waters of the Balearic set are set Balears378, Order AAA/1087/2014 of 24 June, by establishing closed seasons for fishing in the mode of bottom trawling in certain areas of the coast of Barcelo-na, Tarragona and Castellon379, Order AAA/1974/2014, of October 24, on establishing a temporary fishing ban in the form of bottom trawling on the coast of Murcia380, among others.

372 Annex II, OR AAA/1307/2013, of 1 July, for which a management plan is established for vessels census National Cantabrian fishing area and Northwest.373 Annex III, Ibid.374 Annex IV, Ibid.375 Annex III, O AAA/627/2013.376 Order APA/1589/2005, of 31 May, by which a plan for the lobster pot in a particular area of Eastern Cantabria (BOE No. 130 of 01.06.2005).377 Order AAA/948/2013 of 22 May, establishing a fishery plan with snare gear in the external waters of the Island of Fuerteventura (BOE. 129 of 05.30.2013). This plan ended its term on 22 May 2015. In principle it has not been extended.378 BOE No. 79, of 02.04.2005.379 BOE No. 155, of 26.06.2014. The ban ended on 22 July 2014.380 BOE No. 262, of 29.10.2014. The ban ended on 30 November 2014.


381 382 383 384 385 386 387 388 389 Continuation

Direct Measures(fishing plans specifically regulating the kind of gear that should be used in that particular area, the fish-ing effort for each vessel, including, where appropri-ate, specific measures for monitoring fishing effort i.e., VMS campaign evaluation scientific reports, among others)

� Plan for purse seine fishing in the Gulf of Cadiz381. � Plan for fishing trawling in the Gulf of Cadiz Fund382. � Order ARM/3019/2011, of 3 November, establishing the necessary

measures to regulate the activity of bottom trawl vessels operating in distant fishing grounds of the Gulf of Lions383.

� Order AAA/1589/2012 of 17 July, regulating the voracious fishery (pagellus bogaraveo) by art called voracera in Strait of Gibraltar384.

� Order APA/1728/2005, of June 3, regulating the activity of the pensin-sular bottom trawl vessels operating in deep waters in the fisheries of Ibiza and Formentera islands385.

� Order APA/3238/2006 of 13 October, establishing a fishing plan for bot-tom trawling in certain areas of the southern Mediterranean coast386.

� Order APA/3456/2006, of 2 November, regulating the anchovy fishery in the Gulf of León387.

� RD 1440/1999, of 10 September, regulating the exercise of bottom trawling fishing in the Mediterranean national fishing ground388.

� Order AAA/1688/2013, of September 10, regulating the fishing of dolphinfish (coryphaena hippurus) and associated species, with the lampuguera gear, in the offshore waters of the Balearic archipelago389.


In Spain, all parameters of vessels likely to have an influence on the fishing effort developed by the fleet-including modalities, fisheries and fishing grounds-, are contained in the Census of Marine Fishing Vessels (in Spanish “CBPM”)390. The inclusion of this data in the Census will be useful for monitoring inconsistencies in the way fishing vessels are carrying out their fishing activities and the parameters for which the vessels are registered.

To ensure compliance with the fishing effort regimes established in each particular geographical area, Spanish authorities will have to take the necessary actions to ensure that391:

� Spanish fishing vessels are only present in an area subject to a fishing effort regime when carrying on board or have installed a fishing gear or gears authorized by that regime effort, or that,

� Spanish fishing vessels operate in a fishery subject to a fishing effort regime only if the maximum allowable fishing effort available has not been reached, and if the fishing effort assigned has not been exhausted.

The Fisheries Control Regulation also regulates in detail a number of rules on how to allocate the

381 Annex I, O AAA/627/2013.382 Annex II, Ibid.383 BOE No. 271, of 10.11.2011.384 BOE No. 171, of 18.07.2012.385 BOE No. 138, of 10.06.2005.386 BOE No. 251, of 20.10.2006.387 BOE No. 269, of 10.11.2006.388 BOE No. 251, of 20.10.1999.389 BOE No. 226, of 20.09.2013.390 Art. 22, Law 3/2001.391 Art. 26.1, Fisheries Control Regulation.


fishing effort to vessels, depending on the fishing gear and the geographical areas where vessels conduct their fishing activities392:

Table 16: RULES FOR THE ALLOCATION OF FISHING EFFORT TO FISHING GEAR AND GEO-GRAPHICAL AREA

393

Vessel CharacteristicsCondition for the

allocation of the fishing effort

Allocation of the fishing effort

Vessel which: � Carries on board or has installed

a fishing gear subject to a fish-ing effort regime or

� Operates in a fishery subject to a fishing effort regime.

When crossing on the same day two393 or more geographical areas sub-ject to the same fishing effort regime.

� To the maximum allowable fishing effort for the referred gear or fish-ery, and

� To the geographical area where the vessel has spent most of the time during that day,

Vessel which: � Is authorized to use more than

one fishing gear during a given fishing trip in a geograph-ical area subject to such effort regime.

If that fishing gear belongs to more than one grouping of fishing gears subject to a fishing effort regime.

� To the maximum allowable fishing efforts established for the MS in relation to each gear or grouping of gears, and

� To the geographical area in ques-tion.

Vessel which: � Is authorized to use more than

one fishing gear or gears dur-ing a given fishing trip in a geographical area subject to that regime.

If the fishing gear belongs to the same group of fish-ing gears subject to a fishing effort regime.

� To the maximum allowable fishing effort established for a grouping of gears and,

� To the geographical area in ques-tion.


2.1.2.1. Notification of fishing gears

In case an area is regulated by restrictions on fishing gear, the area is subject to a maximum allow-able fishing effort. European legislation requires the master of the vessel of their representatives to notify the Spanish authorities prior to them beginning fishing in an area with restricted gear394.

When the fishing effort regime of the area allows the use of gears belonging to more than one grouping of fishing gears and it is intended the use of that option during a fishing trip, masters of vessels must first obtain an authorization from the competent authority395. When intending to use fishing gear in an area that allows the use of gear belonging to more than one grouping of fishing gear, the master of the vessel must obtain authorization from the competent authority.

In the Spanish legal system, this obligation is regulated differently depending on the fishing plan

392 Art. 26, sections 2, 3 and 4, Ibid.393 Article 26.6, Ibid. defines “day present within an area” as “(...) any continuous period of 24 hours or part thereof during which a fish-ing vessel is present within the geographical area and absent from port or where appropriate deploying its fishing gear (...)”. The start of the “present day” will start to run as established by the flag MS of the vessel concerned.394 Art. 27.1, Ibid.395 Art. 27.2, Ibid.


concerned, and it does not foresee the use of gears belonging to different grouping of fishing gears during the same fishing trip:

Table 17: REGULATION OF THE OBLIGATION TO NOTIFY FISHING GEARS396 397 398 399 400 401 402 403 404 405 406 407 408

Plans establishing specific obligations on communication

� Lobster pot fishing in certain areas of Western Cantabrico: - Authorized fishing gear: pots396. - Fishing season: from June 1 to September 15, every year397. - Requirement for vessels’ owners to communicate the starting of their

activity to the GSF, at the beginning of each season398. � Fishing of dolphinfish and other associated species with lampuguera in the

external waters of the Balearic islands: - Authorized gear: lampuguera399. - Fishing season: from August 25 to December 31400. - Requirement for owners or employers concerned to communicate before

15 June each year, to the DG for Fisheries Management of the Baleric Islands, which shall forward the information to the DGRPA401.

� Fishing with snare gear in the external waters of Fuerteventura: - Authorized gear: fishing brown drums and pots for fish402. - Fishing season: from November 1 to April 30403. - For pot fishing: fishing with this gear is only permitted to 66 vessels of

certain basis ports404. The fishermen Guilds of these ports shall submit to the DGRPA, with at least fifteen days before the beginning of the fishing season, the list of vessels intending to fish, for the DG to issue the corre-sponding special fishing authorizations405.

� Fishing with voracera in the Strait of Gibraltar: - Fishing gear authorized: voracera406. - Temporary cessation of fishing: from February 1 to March 31, each

year407. - Obligation to prove regularity in the fishery with the voracera gear in rela-

tion to all fishing vessels intending to carry out the fishing activity with that gear in the Strait of Gibraltar408.

396 Art. 5, O APA/1589/2005.397 Art. 4, Ibid.398 Art. 2.2, Ibid.399 Art. 2, O AAA/1688/2013.400 Art. 5, Ibid.401 Art. 3, Ibid. Likewise, paragraphs 1 and 3 of this Article provide that “1. Fishing lampuguera gear may only be performed by those vessels that have participated in the draw for the catnip of swaths and which have been authorized by the Directorate General for Fisheries and Aquaculture Resources of the Ministry of Agriculture, Food and Environment (...) 3.The owners or masters of the vessels which evidence the holding of a lampuguera and which have enrolled a minimum of 2 crew during the fishing season will be allowed to participate in the draw”.402 Art. 2, O AAA/948/2013.403 Art. 5.2.b, Ibid.404 According to Article 3, Ibid. “(...) The distribution of these vessels by base port shall be the following: a) Corralejo: 27 vessels. b) Gran Tarajal: 28 vessels. c) Morro Jable: 11 vessels (...)”.405 Ibid.406 Art. 2, O AAA/1589/2012.407 Art. 7.3, Ibid.408 Art. 4, Ibid. The list of authorized vessels is referred to in Annex I of the Order.


409 410 411 412 413 414 415 416 417 418

Continuation

� Plan of octupus fishing in the Gulf of Cadiz: - Authorized fishing gear: minor gears (pots, alcatruces, jigging and/or

chivos)409. - Temporary prohibitions depending on the choice of gears410. - Obligation to have an authorization from the GSF specifying the gear or

gears for which the vessel is authorized411.

Plans requiring vessels to be regis-tered in a particular

modality for the geographical area

in question

Most of regulatory instruments governing areas subject to a fishing effort regime do not regulate the obligation to notify the gear that will be used, but that they shall be registered in the intended modality for that fishery and the particular geographical area, i.e.: Plan for purse seine fishing in the Gulf of Cadiz412, Plan for trawling bottom fishing in the Gulf of Cadiz Fund413, Fisheries plan for certain fixed gears in the maritime provinces of Gijón, Santander, Gipuzkoa, and Biz-kaia414, O ARM/3019/2011415, or, O APA/3238/2006416, among others.

According to the provisions of Law 3/2001 all fishing vessels wishing to exer-cise fishing activities in external waters should be registered in the Census for Operational Fishing Fleet, in a single census by modality and fishing ground417. In case fishing vessels wish to carry out the fishing activity with different gears than those established in the census, inside the same fishing ground, the SGCI will be able to authorize a temporary change of modality for a period not exceeding six months, prior report from the AC of the base port of the vessel in question, and always taking into account the state of the resources or regulato-ry needs of the fishing ground418.


Regarding fishing gear subject to a fishing effort regime, the Fisheries Control Regulation419 fore-sees the application of certain exemptions. Nonetheless, we have been not able to identify that these exemptions are contained in the Spanish legal system:

� Fishing vessels may transit across an area subject to a fishing effort regime if they carry

409 Art. 2, Annex III, O AAA/627/2013.410 Art. 3, Annex III, Ibid.411 Art. 2, Annex III, Ibid.412 Article 1.1, of Annex I, Ibid states that “This plan will apply to the Spanish fishing vessels carrying out purse seine fishing in the external waters of the National Fishing Ground of the Gulf of Cadiz, which is between the Guadiana and the meridian of Punta Marroquí (005º 36’ W)”.413 Article 1 of Annex II, Ibid. states that “(...) this Plan shall apply to the Spanish vessels that exercise drag bottom fishing in waters outside the National Fishing Gound of the Gulf of Cádiz (...)”.414 Article 1 of Annex II of the O AAA/1307/2013 provides that “(...) it shall apply to vessels flying the Spanish flag which are registered in the Register of Fishing Vessels, are included in the census of volanta, scratched or minor gears, as appropriate, of the National and Northwest Cantabrian Fishing Ground (...)”.415 Article 1 of the ARM/3019/2011 states that “(...) it has the purpose to regulate the fishing activity aimed to caught demersal species by Spanish flag vessels, registered in the modality of trawling bottom fishing of the Mediterranean fishing ground, with base on the ports of the Girona province, when operating in the area of the Gulf of León fishing ground (…).”416 Article 1 of O APA/3238/2006 states that “it has the purpose to regulate a fishing plan adopting specific and singular measures for the trawling bottom fishing in the deep areas of the parallel 36º 35.0’ North, and inside the area between the meridians 002º 06.0’ and 002º 56.0’ West.417 Art. 22, Law 3/2001. 418 Art. 8, O AAA/1307/2013; Art. 5, O AAA/627/2013; and Art. 3, Order ARM/2529/2011, of 21 September, regulating the fishing ac-tivity with purse seine gears in the Mediterranean fishing ground (BOE No. 230, of 24.09.2011), amended by Order AAA/2793/2012, of 21 December (BOE No. 312, of 28.12.2012); information available online at the MAGRAMA website: http://magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/licencias-autorizaciones-permisos-pesca/.419 Art. 29, Fisheries Control Regulation.

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on board fishing gear subject to that regime, provided that they are securely lashed and stowed420 in the event that:

a) They do not have a fishing authorization that would allow them to fish in the specific area, or

b) If they have notified to the competent authorities their intention to transit the area.

� MS may decide not to allocate a maximum allowable effort for a geographical area the activity of a fishing vessel which is not related to fishing activities in that area, provided that:

a) Those vessels do not carry on board fishing gear or fish stocks during that time.

b) They have previously notified the authorities of their flag MS and their intention to carry out those activities and,

c) They renounce to their fishing authorization during that time.

� MS may decide not to allocate a maximum allowable fishing effort of a geographical area, the activity carried out by a vessel which has been unable to fish in the event that:

a) It has been providing emergency assistance to another vessel, or

b) It has transported an injured person who needed urgent medical attention.

After one month, the MS shall submit evidence to the EC concerning that the emergency aid provided.

Measures concerning the fishing effort regime will not affect those vessels that are exempted from the application of a fishing effort regime421, i.e.: Article 1 b) of Regulation (EC) No 754/2009 of 27 July 2009 excluding certain groups of vessels from the fishing effort regime laid down in Chapter III of Regulation (EC) 1342/2008422, excluded certain fishing vessels flying the Spanish flag from the fishing effort regime foreseen in the long-term plan for cod stocks and the fisheries exploiting those stocks in the Kattegat, North Sea, Skagerrak, Eastern Channel, West of Scotland and the Irish Sea423. Nevertheless, this article was derogated by Regulation (EU) 1182/2013 of the Council of 19 November424, because given the information provided by Spain in 2013, the STECF was not able to determine whether the conditions set in Regulation (EC) 1342/2008 were being fulfilled, and there-fore considered necessary to remove the exemption to which Spanish vessels were subject to425.

420 See section 2.4.1.1 of this document.421 Art. 31, Fisheries Control Regulation.422 OJ L 214, of 19.08.2009.423 Regulation (EC) 1342/2009 of 18 December 2009 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks, and repealing Regulation (EC) No. 423/2004 (OJ L 348, of 24.12.2008).424 Regulation (EU) No 1182/2013 of the Council of 19 November 2013 amending Regulations (EC) No 754/2009, (EU) No 1262/2012, (EU) No 39/2013 and (EU) 40/2013 as regards certain fishing opportunities (OJ L 313, of 11.22.2013).425 Paragraph 4, Preamble, Regulation (EU) 1182/2013.


2.1.3. recording of caTches and The fishing efforT

Article 33 of the Fisheries Control Regulation requires each MS to record all data concerning fishing opportunities426, expressed both in terms of landings and, where appropriate, fishing effort. These data, which are in particular obtained from the fishing logbooks, transhipment declarations, landing declarations and sales notes427 shall be kept for a period of three years or longer.

Based on the data recorded, European legislation requires MS to comply with a series of obliga-tions regarding the communication of this data to the EC:

� The MS must communicate the EC by computer transmission before the 15th of each month the recorded data that relate to either a stock or group of stocks subject to landed quotas428 in the previous month429, or either to the effort deployed430 during the previous month in each zone or fishery subject to a fishing effort regime.

� The MS must notify the EC by computer transmission before the end of the first month of each calendar quarter, the data relating to the quantities of stocks in aggregated form which are not subject to landed quotas during the preceding quarter431.

In addition, if deemed to have been reached 80%, either of the allowed quotas for a given stock or group of stocks or the maximum allowable fishing effort corresponding to certain fishing gear or fishery and to a certain area, the EC shall be informed immediately432.

In case the EC is not informed about the data referred to in Article 33 with the frequency set in the Fisheries Control Regulation, the EC may fix the data when considers that such 80% has been reached and the estimate data when considers that the fishing opportunities have been exhausted. It may proceed to the prohibition of fishing activities in that area, fishing gear, the stock or group of stocks in question or regarding the fleet engaged in this activities433.

The Spanish legal system enables for the existence of a system of catches and control aimed to control the consumption of quotas for each species. It also regards measures in case it is verified

426 The fishing opportunities or TACs are set annually by the Council of Ministers for Fisheries based on Commission proposals and are shared among EU countries as national quotas. Source: http://ec.europa.eu/fisheries/cfp/fishing_rules/tacs/index_es.htm.427 Article 33.1 of the Fisheries Control Regulation included within the data to be recorded, as indicated in the reports of fishing effort referred to in Article 28 of the same law. However, the decision to require a report of fishing effort for vessels not equipped with a VMS or not electronically transmit the data relating to the logbook, but are subject to a regime of fishing effort, is a discretion of the Council. At this time, there is no Council decision concerning the obligation to make this report.428 Article 33.5, Fisheries Control Regulation provides that All catches of EU vessels fishing for a stock or group of stocks subject to quo-tas are charged against the quotas allocated to the flag Member State for that stock or group of stocks, wherever they landed. “Catches made in the context of scientific research, including those that do not meet the applicable minimum reference size, are counted against the quota applicable EM vessel flag when they exceed 2% of the shares in question”, as is regulated in Article 33.6, Fisheries Control Regulation, as amended by Regulation (EU) 2015/812.429 Article 7.6 of Regulation (EU) 2015/812 amended this section to include “(...) the quantities or units that do not meet the minimum size applicable for the purposes of conservation, as a separate entry (...)”.430 Article 33.8 of the Fisheries Control Regulation states that “(...) all fishing effort deployed by Community fishing vessels when carrying on board or, where appropriate, using a fishing gear or gears subject to a fishing effort regime or operating in a fishery subject to a fish-ing effort regime in a geographical area subject to that fishing effort regime shall be counted against the maximum allowable fishing effort related to such geographical area and to such fishing gear or such fishery available to the flag Member State”. Fishing effort deployed in the framework of scientific research, shall be counted against the maximum allowable fishing effort related to such fishing gears or fishery and geographical area “if the catches taken during the deployment of this effort (...) exceed 2% of the fishing effort allocated”, according to article 33.9, Ibid.431 Art.33.4, Ibid. 432 Art. 34, Ibid. The EC may request to send more detailed and more frequent information than is required by Article 33 Ibid.433 Art. 36, Ibid.

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that this quote has been reached or is next to it434, i.e.: closure of fisheries or deductions of quotas, in line with the provisions contained in Article 105 of the Fisheries Control Regulation435.

Said catch registration system has been and is audited by the EC. Following these audits, a num-ber of shortcomings in the system of information recording which led to the imposition of several measures by the EU. For instance, the penalty imposed on Spain in 2010 for overfishing of mackerel due to failures in the control system applied during those years. This entailed catches of 79% more than permitted for this species436, or the approval in 2012 of the Commission Implementing Decision of 30 July establishing an Action Plan to address the deficiencies of the Spanish fisheries control system437.

From the adoption of the Action Plan, there has been an improvement to the IT system for data collection, and the creation of a Technical Control Group with the main objective of coordinat-ing all authorities with control competencies, both at the General State Administration (AGE) and the AA.CC levels, and create information exchange procedures guaranteeing the consistency of actions on the inspection activity throughout all the Spanish territory438.

2.1.4. closure of fisheries

The DG for Fisheries Management shall be the competent body to order the closure of a fishery in the event that:

� It is considered that Spanish vessels have exhausted the allocated quotas439 to them for a given stock or group of stocks, or

� It is considered that the overall Spanish fleet or either a certain group of fishing vessels has reached the maximum allowable fishing effort corresponding to a fishing gear and to a given geographical area.

Decisions concerning the closure of fisheries as well as their openings are contained in the MAGRA-MA website440 and have been published in the Official Journal of the European Union (OJEU) in line with Article 35.3 of the Fisheries Control Regulation. At the same time, the EC shall notify all the MS in the case of being notified about the closure of a fishery.

434 Art. 4.2, O AAA/627/2013 European Fisheries Control Regulation Art. 7.2, O AAA/1307/2013. 435 Article 105, Fisheries Control Regulation provides that “When the Commission has established that a Member State has exceeded the quotas which have been allocated to it, the Commission shall operate deductions from future quotas of that Member State.”.436 Judgment of the General Court of 18 June 2014 (Fourth Chamber) in Case T-260/11, Kingdom of Spain vs European Commission. 437 Response given by Ms Damanaki on behalf of the Commission in relation to the parliamentary question by MEP José Blanco López (S & D). “(...) In July 2012, the Commission adopted a Decision establishing an action plan established to remedy deficiencies in the Spanish fisheries control system. The Commission services have closely followed the implementation of this action plan and have seen significant improvements in said control system (...)”. Available online at :http://europarl.europa.eu/sides/getAllAnswers.do?refer-ence=E-2014-006474&language=ES.438 2013 MAGRAMA Annual Report.439 Although Article 4.2 of O AAA/627/2013 and Art. 7.2 AA/1307/2013 contemplate closures in case that the quotas are “close to ex-haustion”, decisions on closures published in the MAGRAMA website, only take place when these quotas have been exhausted.440 Examples of these closures are: Communication of the DG for Fisheries Management issued on 14 May 2015 regarding the pre-cautionary closure of coalfish fishing in Zone VI and EU and international waters of Vb, XII and XIV from May 16; Resolution of the DG for Fisheries Management establishing the interim and precautionary closure of the fishery for mackerel (Scomber scombrus) stock MAC/8C3411 for vessels of gears other than trawling and purse in the Cantabrian Northwest, with port based in La Coruña, Lugo and Pontevedra from April 18, 2015; Communication of the DG for Fisheries Management issued on 9 April 2015, on the prohibition for fishing tusk (brosme brosme) in EU waters and international waters of V, VI and VII (USK/567EI), among others.

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Measures adopted by the DG for Fisheries Management are in line with those provided in the Fish-eries Control Regulation441 and consist of:

a) Prohibit all Spanish vessels, or part thereof, to fish a particular stock or group of stocks whose quota has been exhausted,

b) Prohibit all Spanish vessels, or part thereof, to fish in a geographical area while carrying on board fishing gear for which has reached the maximum allowable effort,

c) Prohibit the carrying on board, tranship, transfer, and landing of fish caught after the closing date, in the case of fish belonging to the stock or group of stocks whose quota has been exhausted or has fished in the geographical area and with the fishing gear for which has reached the maximum allowable effort442.

From the date on which the closing takes place, the Spanish authorities should ensure compliance with the measures taken443. Failure to comply with these measures is classified as a serious infringe-ment and is punishable as provided in Chapter I of Title V of Law 3/2001444.

Control of fishing effort

Obligations concerning the control of fishing effort are not widely regulated in the Spanish legislation. However, since they are directly applicable, we have checked that these meas-ures are being applied in order to comply with the EU regulations; for example, closure of fisheries, existence of the catch registration, or regulation of measures concerning the fishing effort regime.

Regarding notification of fishing gear, there are differences in the EU and the Spanish regu-lations one. The first one requires the master of the fishing vessel or his representative to notify the fishing gear to be used before starting their fishing activities in an area under a fishing effort regime. The Spanish law, although in some cases foresees this obligation on notifica-tion, in general it has opted for authorizing vessels to carry out fishing activities depending on the modality and the fishing ground registered, being only allowed to operate in a single census by modality and fishing ground.

As for the recording of catches, the existence of some shortcomings in the past led to over-fishing of certain stocks. However, judgment of the ECJ (Case T-260/11) and the adoption of an Action Plan by the CE addressing the deficiencies in the Spanish fisheries control system have been fundamental to improve the IT system for electronic data gathering.

As for the DG for Fisheries Management, Spain is ordering closures of fisheries and adopt-ing the necessary measures in accordance with the Fisheries Control Regulation provisions.

441 Art. 33.2, Fisheries Control Regulation.442 In line with the above, Article 35.2, Fisheries Control Regulation provides that “(...) and shall the date until which transhipments, transfers and landings or final declarations of catches will be allowed”.443 Art. 35.3, Ibid.444 See section 2.12 of this document.


2.2. Control of the fleet management

One of the objectives of the CFP is the promotion of sustainable fishing, which requires, among other factors, a balance between fishing resources and the fleet to avoid excessive exploitation of fish stocks.

To ensure compliance with measures destined towards the control of the fleet management, there have been established instruments for the control of the fleet capacity, such as the monitoring of the engine power of fishing vessels. To this end, MS are required to adopt measures to ensure that the capacity set in the granted fishing permits does not exceed the maximum capacity levels for that MS and to ensure that the engine power of the vessel does not exceed its certified engine power. This is done through the certification and verification of the engine power.

2.2.1. fishing capaciTy

The ECA Special Report No 12/2011 used the following question as a title: “Have EU measures contributed to adapting the capacity of the fishing fleets to available fishing opportunities?”445. In that report, the ECA examined the framework in which measures to reduce the excess of fishing capacity were taken, as well as the way in which the EC and MS had formulated and implemented those measures. The ECA found some serious inconsistencies in this framework:

a) The existing definitions of fishing capacity did not accurately reflect the capacity of ves-sels to capture fish446;

b) The limits of fleet capacity only served to adapt their fishing capacity to fishing opportu-nities;

c) The excess of fishing capacity had not been defined nor quantified;

d) The possibility of transferring fishing rights had not sufficiently been taken into account.

According to the ECA Report “overcapacity of the fishing fleet continues to be one of the main reasons for the failure of the CFP in assuring a sustainable fishing activity”. For that reason the ECA made the following recommendations to the EC and MS.

445 ECA, Special report no. 12/2011. Available at: http://www.europarl.europa.eu/meetdocs/2009_2014/documents/cont/dv/sr12_/sr12_es.pdf. 446 In this line the ECA stated: “21. Fishing capacity as defined by GT and KW is a key concept used to monitor the size of Member States’ fishing fleets, and implement fishing effort controls and measures to adapt fishing fleets to fishing opportunities. The relative simplicity of the fishing capacity definition facilitates its use for these purposes. However, in order to match fleet capacity with fishing opportunities, the real ability of the fleets to catch fish is more important than formal measures of capacity. ‘GT and kW’ are not reliable indicators of the ability of vessels to catch fish, especially considering the advances in fishing technology. Such advances were estimat-ed by the Commission, in its mid-term review of the CFP of 2008, to increase the ability of fishing vessels to catch fish by around 3% per year. This was estimated by the Court to result in an overall increase of 60% over the 16-year period 1992 to 2008. While the capacity of the EU-12 fishing fleet in terms of GT and kW decreased by 29% in the same period, the effective capability taking into account the impact of technological improvements is estimated to have increased by 14%”.

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Table 18: ECA’S RECOMMENDATIONS TO ADDRESS THE EXCESS OF THE FISHING FLEET CAPACITY

The EC should take the necessary initiatives and evaluate whether it is necessary to amend the basic regulations, in order to: a. better define fishing capacity and overcapacity, and consider stronger and more adequate

measures to facilitate actions for balancing the fishing capacity with the fishing opportunities; b. establish effective limits for fishing fleet capacity;c. ensure that the design and implementation of Fishing Effort Adjustment Plans effectively tar-

get the reduction of the fishing effort;d. clarify the destination of fishing rights at the time of decommissioning of vessels with granted

public aids;e. clarify whether the adjustment programmes of fishing rights have a relevant role in reducing

the fishing fleet overcapacity;f. determine whether the programme of public aids for onboard investments must be reviewed

in light of the difficulties for avoiding investments increasing the fishing capacity. In case of continuation of said programme, it shall be necessary to clarify which investments on board are eligible for public aid and which are not;

g. establish unambiguous obligations on MS to ensure that the fleet register is correctly updat-ed, and to ensure that that the reports concerning their efforts to balance fishing capacity with fishing opportunities contain the required information and are of suitable quality.

When implementing CFP measures concerning the adaptation of the fleet capacity to the availa-ble fishing resources, MS should:a. adopt corrective measures to eliminate delays in the implementation of the old European

Fisheries Fund;b. ensure that measures to aid investments on board are strictly applied and do not increase

the fishing capacity;c. ensure that the fishing fleet register is up to date; d. ensure that selection criteria for fishing vessel decommissioning programs are designed to

have a positive impact on the sustainability of the targeted fish stocks and avoid the granting of public aid for decommissioning inactive fishing vessels;

e. ensure that public aid rates for decommissioned fishing vessels take into account their cost effectiveness on the basis of sufficiently objective criteria;

f. implement the EC guidelines at the time of elaborating annual reports on their fishing efforts to achieve a sustainable balance between the fishing capacity and the fishing opportunities, and give reasoned conclusions on the state of that balance.

Source: ECA Special report no. 12/2011

Although EP Committee on Fisheries prepared a proposal of Resolution about this Special Report447, it was finally withdrawn448.

However, in 2012 a study conducted by the EP affirmed, as already done by the ECA Special Report that “excess fishing capacity is and has been a chronic and recurring problem that the Common Fisheries Policy (CFP) has failed to solve”449. Also, in line with that Special Report, said study outlined “(...) In the absence of a clear definition450, excess fishing capacity has never been

447 http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+REPORT+A7-2012-0228+0+DOC+XML+V0//EN.448 http://www.europarl.europa.eu/oeil/popups/ficheprocedure.do?reference=2012/2009(DEC)&l=EN#tab-0.449 Iborra Martin, Jesus, Excess Fishing Capacity in the Reform of the Common Fisheries Policy, the European Parliament, December 2012, p. 9. Available at: http://www.europarl.europa.eu/studies.450 This study explains: “Fishing capacity is a ship’s potential to capture fishery resources. From an economic viewpoint, it is a ship’s extraction potential (output), while from a biological viewpoint it is the potential contribution (input) of the ecosystem to the fishing activ-ity.” (p.9).

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quantified precisely. However, there are clear indications that overcapacity exists. These include an excess of fishing mortality in some stocks, low capacity utilization in some fisheries and a constant decrease in the profitability of fishing activity. Traditionally, the management of fishing capacity under the CFP has been far from effective”.

Despite what stated in the EP study, the 2013 CFPR has practically maintained the same defini-tion of fishing capacity as that set by the 2002 Regulation: “the tonnage and power of a vessel expressed in GT (gross tonnage) and power kW (kilowatt) as defined in Articles 4 and 5 of Regula-tion (EEC) No 2930/86”451.

On the basis of this definition the study expressed “A ship’s gross tonnage is based on the total volume of its enclosed spaces, or part of them, and has been harmonized since 1994. The power of a fishing ship is its propulsion power and does not take account of auxiliary power. However, auxil-iary power has increased progressively, has made it possible to use larger gears and is particularly important for trawling”452. Likewise, the study referred to the limited reliability of the measuring and certification system of the engine power453, an issue that from a legal point of view has been

451 Article 4 of Regulation 2930/86: “Tonnage: 1. a) The tonnage of a vessel shall be gross tonnage as specified in Annex I of the Con-vention of 1969. b) The gross tonnage is measured in accordance with Annex I of the Convention of 1969 in the case of all new vessels of length equal to or greater than 15 meters whose construction has started on July 18, 1994 and thereafter. c) The gross tonnage is measured according to the formula set out in the Annex hereto in the case of current and future vessels with less than 15 meters overall length . d) Prior to July 18, 1994, the gross tonnage is remeasured in accordance with Annex I to the 1969 Convention in the case of all existing vessels with an overall length between perpendiculars or 24 meters. For vessels in this category which do not engage in interna-tional voyages within the meaning of the 1969 Convention, and are therefore exempt from the provisions of that Convention, the deadline shall be postponed until 31 December 1994. e) Subject the provisions of paragraphs 2 and 3, in the case of active existing vessels with an overall length equal to or greater than 15 meters but less than 24 meters, gross tonnage may be calculated by the method of Annex hereto where the Commission considers sufficient degree of accuracy obtained. However, Member States shall measure the tonnage of vessels in this category in Annex I to the 1969 Convention when any of the following circumstances:- At the request of the shipowner;- On application by the shipowner, in behalf of his vessel, a claim for financial support with the option of community financial aid, where such aid depends on the tonnage of the vessel. Community aid granted under Commission Regulation (EC) No 3699/93 of 21 December 1993, which defines the criteria’s and conditions of the community interventions regarding structural assistance in the fishing sector, aquaculture and the transformation and commercialization of its products, shall be applied, however, in accordance with the provisions in force of that Regulation. Up until January 1, 2004, the reference to the unit of measurement expressed in GRT may be maintained in the implementation of aid schemes concerning Articles 8 and 9 of Regulation (EC) No 3699/93, provided that the data relating to that unit of measurement have been notified to the Commission before July 18, 1994 within the framework of the procedures referred to in Regulation (EC) No 109/94, of January 19, 1994 concerning the community register of fishing vessels;- In the case of alteration or modifications being introduced, in the opinion of the competent authority of the Member State, it can lead to an essential change of tonnage.Member States shall ensure that, before January 1, 2004, all remaining vessels in this category undergo a new measurement in accor-dance with Annex I from the 1969 convention.2. In the community regulation, the net tonnage will correspond to the definition given in Annex I previously cited”.Article 5 of Regulation 2930/86: “ Potential engine power: 1. The engine power shall be the total of the maximum continuous power which can be obtained at the flywheel of each engine and which can, by mechanical, electrical, hydraulic or other means, be applied to vessel propulsion. However, where a gearbox is incorporated into the engine, the power shall be measured at the gearbox output flange. No deduction shall be made in respect of auxiliary machines driven by the engine. The unit in which engine power is expressed shall be the kilowatt (kW).2. The continuous engine power shall be determined in accordance with the requirements adopted by the International Organization for Standardization in its recommended International Standard ISO 3046/1, second edition, October 1981.3. The amendments necessary for adapting the requirements provided for in paragraph 2 to technical progress shall be adopted in accordance with the procedure provided for in Article 14 of Regulation (EEC) No 170/83.”452 Iborra Martín, Jesús, Excess Fishing Capacity in the Reform of the Common Fisheries Policy, the European Parliament, December 2012, pages 9-10.453 In 2007, the EC recognized that the system of measurement and certification of the engine power had serious deficiencies which did not prevent that “an engine can be certified with a power much lower than its maximum power”. Communication from the Commission to the Council and the European Parliament, of 5 February 2007, on improving fishing capacity and effort indicators under the common


enhanced thanks to the rules established by the Fisheries Control Regulation in this respect, which will be analyzed in this section. The study concluded calling for an improvement of the situation through an amendment of the CFP which, at that time, was already on-going.

The measures introduced by the CFP in 2013 to manage fishing capacity are454:

� The system for transferable fishing concessions455, the adjustment of fishing capacity to fishing opportunities456 and the management of said capacity through the adoption of measures in relation to studies and assessments457. In particular, Article 22 requires MS to elaborate and submit to the EC an annual report on the balance between the fishing fleet capacity and its fishing opportunities, which should include an evaluation of the national fleet capacity and of all segments of the MS’s fleet458. Said assessment should be based on an analysis of the balance between their fleet fishing capacity and their fishing capacities. If as the results of these assessments clearly stated that there is no balance, the MS shall elaborate and include in a report and Action Plan for the fleet seg-ments that have an excess of structural capacity. The assessment conducted by Spain showed an imbalance and as a result, Spain has elaborated its 2015 Action Plan for segments with overcapacity459. At the same time, the EC must prepare an annual report for the EP and the Council on the balance between the fishing capacity of the MS fleet and their fishing opportunities.

From 1 January 2014, Spain is required to guarantee that the fishing capacity of its fleet, including the Canary Islands, does not at any time exceed the maximum limit of 423,550 TAB, which counted with 353,110.76 TAB as of 31 December 2014460, and 964,826 kW461, counting with 804,387.19 kW on that same time462.

� Management of the arrivals463 and departures of fleets464, and

� Management of the registration of the fishing fleets465.

In order to control the fishing capacity, the Fisheries Control Regulation requires MS to carry out the necessary checks to ensure that the overall capacity corresponding to the fishing licenses issued

Fisheries Policy [COM (2007) 39 final - not published in the Official Journal], p. 5.454 Part IV “Management of the Fishing Capacity” (Arts. 21-24), Fisheries Control Regulation. 455 Article 28 of Law 3/2011provides for the transfer of distributed fishing opportunities.456 Operations increasing the fishing capacity of a vessel or equipment which increase the vessels capability to detect fish are not subsidized under the EMFF (art. 11.a), FEMP Regulation).457 The guidelines for the preparation of these reports and assessments were developed by the Communication from the Commission to the European Parliament and the Council. Guidelines for the analysis of the balance between fishing capacity and fishing opportunities in accordance with Article 22 of Regulation (EU) No. 1380/2013 of the European Parliament and the Council on the common Fisheries Policy [COM/2014/0545 Final].458 The report submitted by Spain to the EC in 2013 is available at: http://www.magrama.gob.es/es/pesca/planes-y-estrategias/informean-ualactividadflotaano2013espfinal_tcm7-374731.pdf y http://www.magrama.gob.es/es/pesca/planes-y-estrategias/anexo2013version3final2_tcm7-374733.pdf.459 Said plan is available at: http://www.magrama.gob.es/en/pesca/planes-y-estrategias/plandeaccionactualizadojulio2015final_tcm7-390448.pdf.460 Complementary documentation to the 2014 annual report of the Spanish fleet activity, p.5 Available at: http://www.magrama.gob.es/es/pesca/planes-y-estrategias/anexo2014alinformeflotamayo15_tcm7-385043.pdf.461 Art. 22, RCFP and its Annex II.462 Report submitted by Spain to the EC in 2013, p. 5.463 Art. 4.6) of RCFP defines’ “entry into the fleet” as ”registration of a fishing vessel in the fishing fleet register of a Member State”.464 Art. 23, RCFP. At the moment, this issue is regulated in Spain by RD 1549/2009 of 9 October on fisheries management and adapta-tion to the European Fisheries Fund (BOE No. 45 of 10.10.2009) which has undergone a series of amendments.465 Article 57 of Law 3/2001establishes the General Register of the Fishing Fleet.

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http://www.magrama.gob.es/es/pesca/planes-y-estrategias/anexo2013version3final2_tcm7-374733.pdf

http://www.magrama.gob.es/en/pesca/planes-y-estrategias/plandeaccionactualizadojulio2015final_tcm7-390448.pdf

http://www.magrama.gob.es/en/pesca/planes-y-estrategias/plandeaccionactualizadojulio2015final_tcm7-390448.pdf

http://www.magrama.gob.es/es/pesca/planes-y-estrategias/anexo2014alinformeflotamayo15_tcm7-385043.pdf

http://www.magrama.gob.es/es/pesca/planes-y-estrategias/anexo2014alinformeflotamayo15_tcm7-385043.pdf


by a MS, in gross tonnes (GT) and kilowatts (kw), does not at any time exceed the fixed maximum capacity for that MS, in accordance with the provisions set in a series of regulations, which includes Article 23 of the Fisheries Control Regulation concerning arrivals and departures of fleets466.

Among the data collected from the Census for the Operational Fishing Fleet467 and the General Reg-ister of the Fishing Fleet468 it is included the propulsive power of fishing vessels. This is a necessary data to regulate and limit the fishing capacity of the national fleet.

Article 58 of Law 3/2001requires an authorization to conduct alterations of tonnage and/or of pro-pulsive power of vessels included in the third list of the Registry of Ships and Shipping Companies. In case of absence of authorization, the law requires to present a registered withdrawal equivalent to the increases on tonnage or on the propulsion power, without prejudice to other legal or regula-tory consequences arising from the absence of such authorizations.

In addition, Article 59 of Law 3/2001 requires that once the construction of units of fishing vessels is authorized, these can replace one or more vessels appearing as a withdrawal in the General Register of Ships and Shipping Companies. Article 60.2 of this Law requires the submission of withdrawals from other vessels registered in the General Registry of the Fishing Fleet, in the form or with the regulatory exemptions established, when modernization and restructuring works lead to an increase of the fishing effort.

RD 1549/2009 of 9 October on the management of the fishing sector and the adaptation to the Euro-pean Fisheries Fund establishes, among others, basic management rules applicable to the renewal and modernization of fishing vessels. However, those standards correspond to the CFR 2002 Regu-lation. We understand that these standards will be subject to amendment although RD 952/2014, of 14 November, amending RD 1549/2009 has extended to one more year the implementation period of certain rules less restrictive concerning the conditions for withdrawals for construction and mod-ernization of fishing vessels, the application processing, and the consequences for the annulment or modification of the files. That is, until 26 November 2015.

Article 38.3 of the RCFP requires MS to communicate the EC about the applicable testing methods, and the name and the address of the bodies responsible for carrying out the necessary checks on a five-year report whose first term of submission was 1 January 2015.

We understand so far that some of the checks undertaken to ensure the absence of imbalance between the overall capacity corresponding to the fishing licenses issued by Spain and the corre-sponding maximum capacity have been made in accordance with the provisions of RD 1549/2009. The section covering the fleet management which is included in the 2013 Annual Report of the Fish-ing Fleet Activity submitted to the EC indicates the strengths and weaknesses and the improvement plan for that management. The report includes in section F.iii information concerning the general level of compliance of the provisions on fleet policy, where there is a summary of the controls under-taken through the DEA monitoring, the activities on inspection and surveillance, the FMC activities, and the certification and verifications of the engine power. However, this information does not clear-

466 It is also necessary to take into account the provisions of Regulation (EU) No 1013/2010 of the Commission on 10 November 2010 laying down implementing rules on the Union Fleet Policy as defined in Chapter III of Council Regulation (EC) no 2371/2002. However, although it is still in force at the time of elaborating this report, this Regulation, as its name suggests, established rules for the fleet policy in accordance with the provisions of Chapter III of the previous CFP regulation on the CFP already repealed.467 Art. 22, Law 3/2001.468 Art. 57, Ibid.


ly indicate the control mechanisms required by the RCFP469, in particular the testing methods of application.

2.2.2. engine power

The RCFP requires MS to control the engine power of their fishing vessels. To do this, the engine power must be certified and verified through two main steps: data verification or checking and physical verification.

Article 39.1 of the Fisheries Control Regulation requires that:

1) It is forbidden to fish with a fishing vessel equipped with a motor whose engine power exceeds that established in its fishing license.

2) MS must ensure that the certified engine power is not exceeded470. In such case, the five year report must communicate to the EC that the control measures undertaken to ensure that the certified engine power is not surpassed.

In Spain, until 31 July 2015, it was permitted to regularize the entries in the Register of Ships and Shipping Companies, dependant on the Ministry of Development, as well as in the Census of Oper-ational Fishing Fleet471 of the fishing vessels in which the hull material, propulsion power or values of length, width, strut or tonnage do not match with the registry information472. Likewise, it was stat-ed that the obligations for owners or masters to present the withdrawal of the necessary fishing units to compensate the excess of tonnage or engine power, in conformity with the criteria applicable for construction and modernization of fishing vessels contained in RD 1549/2009473. This means that, up to 31 July 2015, in an implicit manner, Spain was not compliant with the prohibition established, and there were no guarantees to ensure the non excess of the certified engine power, apart from other technical characteristics, despite the fact that the Fisheries Control Regulation prohibited it from 1 January 2010, which was the date for its implementation474.

In fact, Article 113 of Law 62/2003 of 30 December on Fiscal, Administrative and Social Meas-ures475, regulated the extraordinary update of the registrations in the Register of Ships and Shipping Companies, and set a deadline of six months for the submission of applications and nine months to resolve and give notification of the proceedings. This measure on the regularization of the fish-ing fleet did not have the intended effect, leading to the approval of Law 9/2007 of 22 June on the regularization and update of registrations of fishing vessels in the Register for Ships and Shipping Companies, and in the Census of Operational Fishing Fleet476. Despite the implementation of this

469 Art.38, Fisheries Control Regulation.470 Art. 4.27 of the Fisheries Control Regulation defines ‘certified engine power’ as the maximum continuous engine power which can be obtained at the output flange of an engine according to the certificate issued by the Member State’s authorities or classification societies or other operators assigned by them.471 The Census of Fishing Fleet Operations and Registration of Ships and Shipping Companies are the instruments through which the Central Government registered vessels become part of the Spanish fishing fleet, and that includes data on their technical and structural characteristics. The reliability of the information contained in these records is essential, among other reasons, to carry out a thorough survey and accurate finding of the fishing effort of the national fleet.472 Article 115, Law 3/2001 valid until July 31, 2015.473 Article 117, Law 3/2001 valid until July 31, 2015.474 Article 124, Fisheries Control Regulation.475 BOE No. 313, of 31.12.2003.476 The main purpose of that law was “the regulation and renovation of entries in the Register of Ships and Shipping Companies under the Ministry of Development, as well as the Census of Fishing Fleet Operations under the Ministry of Agriculture, Fisheries and Food, those fishing vessels in which the material of the hull, propulsion power or values of length, width, strut or tonnage not match their cor-


law, RD 1081/2012, of 31 July establishing the regularization procedure of fishing vessels and their update in the census of operational fishing fleet and the register of ships and shipping companies was approved477. As indicated in its Preamble, it was proved the existence of a significant number of vessels that were excluded from the application of Law 9/2007 for being subject to previous regularization procedures, and there were some difficulties for the submission of the necessary withdrawals. Fortunately, these provisions have been repealed.

Article 113 of Law 3/2001 envisages as serious infringements within the management of the fishing sector either: “b) The undertaking of construction or modernization of fishing vessels failing in com-plying with the required authorizations of the respective competent bodies of the AA.CC or of the State, while in the scope of their respective competences”, as well as “e) The non compliance of the regulations in force in relation to engine power or other parameters established for fishing vessels in respect of each fishing ground and fishing modality”.

This is in line with the provisions contained in Article 90.1.b) of the RCFP which requires MS to consider as a serious infringement, among others, “the manipulation of a fishing vessel to increase its power above the maximum engine power indicated in the engine certificate”. It should be emphasized that, within Spanish law, this type of infringement is categorized within the category of infringements concerning the management of the fishing sector. Thus, the obligation to control compliance on this matter corresponds to the AA.CC478.

To ensure that the certified engine power is not exceeded it is necessary to establish control meas-ures. To this end, the engine power of fishing vessels must be both certified and verified.

2.2.2.1. Certification of engine power

Article 40 of the RCFP requires MS to certify the engine power and to issue the engines certificates of EU fishing vessels whose propulsion engine power exceeds 120 Kw, except vessels using exclu-sively static gear or dredge gear, auxiliary vessels and vessels used exclusively in aquaculture. To this end, MS competent authorities are required to officially certify that all new propulsion engine, a replacement propulsion engine, and a propulsion engine that has been technically modified479 in fishing vessels do not have the capacity to produce more that the maximum continuous engine power that is indicated in the engine certificate. Such certification shall only be issued if the engine is not capable of developing more than the stated maximum continuous engine power. Competent authorities are allowed to assign the certification of engine power to classification societies or other operators. The RCFP allows MS to fine operators of fishing vessels a part of or the total cost resulted from the certification of the engine power.

The Implementing Regulation states that such certification shall be issued in accordance with Reg-

responding registry data”. In the event that the changes they supposed tonnage increases or propulsion power, its owners or operators must provide at low operating fishing units necessary to offset these increases.477 BOE No. 168, of 14.07.2012. 478 Art.11 of Law 3/2001: “Sanctioning power within the management of the fishing sector and the marketing of fishing products: Cor-responds to the competent bodies of the AA.CC the regulatory development, the processing and resolution of files corresponding to infringements within the management of the fishing sector and of marketing of fishery products categorized in this law”. 479 A propulsion engine shall be considered to have been technically modified when any of its main components (parts), including but not limited to, injection equipment, valves, turbocharger, pistons, cylinder liners, connecting rods, cylinder heads, have been modified or replaced by new parts with different technical specifications resulting in a modified power rating or when the engine adjustments, such as the injection settings, turbocharger configuration, or the valve timings have been modified. The nature of the technical modification shall be clearly explained in the certification.


ulation (EEC) no 2930/86 of the Council, in which Article 5 defines engine power, as seen before in this document.

The EMFF provides the possibility of granting aid for the modernization and replacements of main engines and auxiliaries, with the aim to mitigate the effects of climate change and improve the ener-gy efficiency of fishing vessels, provided that active operators on small-scale coastal fishing take precedence in the selection procedure for improving their access to financial aid, and as far as the larger vessels contribute to the reduction of engine power480. Likewise, among the aids destined to the enforcement of the control, inspection and surveillance systems, the purchase of other control means are eligible for funding, among them, equipment for measuring engine power481. Article 5 of RD 1549/2009, of 9 October provides a definition of propulsion engine of a fishing vessel, under-stood as “the maximum power to brake measured at the output of the propulsion engine (BHP power) accredited by the certificates issued by an organization recognized and authorized by the Ministry of Development, as a result of the testing of each model and type of inboard engine; in the case of outboard engines, the measurement and declaration of the power is in accordance with the Standard UNE EN ISO 8665”.

With regard to the calibration, paragraph 2 of Article 5 states that “it shall be admitted a flexible lim-it of 20% of the maximum recognized power for the corresponding model and engine type to be installed in a new unit”. The setting on outboard engines is expressly prohibited by paragraph 3 of this Article. We understand that this provision is contrary to the requirements of Article 40 of the Fisheries Control Regulation, since it does not allow the certification if the engine is capable of developing more than the indicated maximum continuous engine power.

Finally, Article 5.4 provides the limitations of “maximum continuous engine power (BHP power) for engines of fishing vessels up to 12 meters length overall, of new construction and those installed for modernization works, based on their total length”. These powers are indicated in the following table:

480 Art 41, EMFF Regulation. “1. In order to mitigate the effects of climate change and improve the energy efficiency of fishing vessels, the EMFF may support: a) investments in equipment or on board aimed at reducing the emission of pollutants or greenhouse gases and increasing the energy efficiency of fishing vessels. Investments in fishing gear are also eligible provided that they do not undermine the selectivity of that fishing gear; (...).2. Support for the replacement or modernisation of main or ancillary engines may be granted only: a) for vessels up to 12 metres in over-all length, provided that the new or modernised engine does not have more power in kW than the current engine;; b) for vessels between 12 and 18 metres in overall length, provided that the power in kW of the new or modernised engine is at least 20% lower than that of the current engine; c) for vessels between 18 and 24 metres in overall length, provided that the power in kW of the new or modernised engine is at least 30% lower than that of the current engine.3. Support under paragraph 2 for the replacement or modernisation of main or ancillary engines may only be granted in respect of ves-sels belonging to a fleet segment for which the report on fishing capacity, referred to in Article 22(2) of Regulation (EU) No 1380/2013, has shown a balance with the fishing opportunities available to that segment.4. Support under paragraph 2 of this Article shall only be granted for the replacement or modernisation of main or ancillary engines which have been officially certified in accordance with Article 40 (2) of Regulation (EC) No 1224/2009. It shall only be paid after any required reduction of capacity in kW has been permanently removed from the Union fishing fleet register.5. For fishing vessels not subject to a certification of engine power, support under paragraph 2 of this Article shall only be granted for the replacement or modernization of main or ancillary engines in respect to which the consistency of engine power has been verified in accordance with Article 41 of Regulation (EC) No 1224/2009 and which have been physically inspected to ensure that the engine power does not exceed the engine power established in the fishing licenses.6. The reduction of engine power referred to in points (b) and (c) of paragraph 2 may be achieved by a group of vessels for each cate-gory of vessel referred to in points b) and c). (...)”.481 Art. 72.2.f), Ibid.


Table 19: BHP DEPENDING ON THE LENGTH OF VESSELS

Length Artisanal and Barnacle Fleet

Up to 4 meters 45

Up to 5 meters 50

Up to 6 meters 65

Up to 7 meters 80

Up to 8 meters 110

Up to 9 meters 140

Up to 10 meters 180

Up to 11 meters 220

Up to 12 meters 270

Source: RD 1549/2009, of 9 October

The Implementing Regulation requires the holder of a fishing license to inform the competent author-ities prior to the installation of a new propulsion engine, the replacement of an existing propulsion engine or its technical modification. In Spain, according to Article 60.3 of Law 3/2001482 and Article 17 of RD 1549/2009483 an authorization is necessary. In fact, as explained in the previous section, Law 3/2001 foresees as a serious infringement of the undertaken of construction or modernization operations of fishing vessels non complying with the mandatory authorizations of the AA.CC or State competent authorities, within the scope of their respective competencies484.

RD 1837/2000, of 10 November, on the approval of the Regulation on Inspection and Certification of Civil vessels485, establishes a specific legal framework which regulates the general conditions and the procedure for conducting inspections486 and controls over vessels. In this context, the approvals and homologations of equipment, materials and elements of the vessel for reasons of protection of the maritime safety, human life at sea and navigation are included. The inspection activities will aim to verify that the vessel, its appliances, elements, materials, equipment, the crew, its cargo, and its operation procedures meet all requirements and conditions applicable both in national and

482 “The modernization and conversion works shall be authorized by the Autonomous Community in accordance with the relevant basic legislation, following a prior favorable report from the Ministry of Agriculture, Fisheries and Food over those matters of their exclusive competence in relation to maritime fisheries, notwithstanding of the competencies of the Ministry of Development”. The website of the Ministry of Development provides information on the documents for submission in the event of change of engine, conversion works and modifications and tonnage. http://www.fomento.gob.es/MFOM/LANG_CASTELLANO/DIRECCIONES_GENERALES/MARINA_MERCAN-TE/Subdireccion_Trafico/procedimientos/default.htm?lang=gl.483 “It may allow the authorization of modernization and equipment of fishing vessels, including changes over the propulsion engine, in accordance with the management rules established in this RD, notwithstanding the Ministry of Development competencies within vessels safety”.484 Art. 103.b), Law 3/2001. 485 BOE No. 285, of 28.11.2000.486 Inspection activities are understood as all the inspections and controls, as well as recognitions, approvals, homologations, certifi-cations and other activities.

http://www.fomento.gob.es/MFOM/LANG_CASTELLANO/DIRECCIONES_GENERALES/MARINA_MERCANTE/Subdireccion_Trafico/procedimientos/default.htm?lang=g

http://www.fomento.gob.es/MFOM/LANG_CASTELLANO/DIRECCIONES_GENERALES/MARINA_MERCANTE/Subdireccion_Trafico/procedimientos/default.htm?lang=g


international regulations in force in Spain in terms of maritime safety and prevention of pollution of the marine environment caused by fishing vessels487.

The inspection activities conducted in the different stages of construction and service of the vessel address concerns regarding maritime safety and the prevention of pollution of the marine environ-ment, which includes the propulsion power equipment488 whose inspection corresponds to maritime inspectors of machines489, unless such inspection is delegated to other public bodies or collaborat-ing entities490. Article 42 of said RD refers to the certification of appliances, elements, materials and equipments on board Spanish vessels, and refers to compliance with the provisions established in RD 809/1999, of 14 May, regulating the requirements to be met by marine equipments destined to be loaded into vessels491. These are marine equipments included in Annex A.1 which includes pro-pulsion engines. Therefore, on the basis of this regulation the power of vessels is certified in Spain including the propulsion engine. Consequently, the certification of the engine power corresponds to the Ministry of Development, in particular to the DG of the Merchant Marine who may authorize other collaborating entities that must be authorized for certification.

2.2.2.2. Verification of engine power

In addition to certifying the power of new propulsion engines, replacement propulsion engines and engines that have been subjected to technical modification, MS must undertake verification to check the consistency of engine power following the guidelines set by the Fisheries Control Regu-lation and the Implementing Regulation:

Table 20: EU REGULATION ON THE VERIFICATION OF ENGINE POWER

Fisheries Control Regulation Implementing Regulation

Verification of engine power

Article 41

(1) after conducting a risk assessment, Member States shall undertake verification of data, accord-ing to a sampling plan based on the methodology adopted by the EC under the procedure referred to in Article 119, to verify the consistency of the engine power and using all the information in the possession of the administration concerning the technical characteristics of the vessel in question. In particular they shall verify the information found in:a) records of the VMS;b) the fishing logbook;

Verification and sampling plan

Article 62

1. For the purpose of verifying the engine power under Article 41 of the Control Regulation, Member States shall establish a sampling plan for the identification of those fishing vessels or groups of fishing vessels in their fleet with a risk of under-declaration of propulsion engine power. As a minimum, the sampling plan shall be based on the following high-risk criteria:a) fishing vessels operating in fisheries subject to fishing effort regimes, in particular, those fishing vessels to which an individual effort allocation in kW*days has been allocated;

487 Art. 1.3, RD 1837/2000. 488 Art. 6.2.a), Ibid. 489 Art. 9.2, Ibid490 Art. 8.3, Ibid. 491 BOE No. 128, of 29.05.1999.


Continuation


c) the international Certificate of prevention of atmospheric pollution for engines (EIAPP Certif-icate) issued for the engine in accordance with Annex VI of MARPOL 73/78;d) the certification of classification issued by an inspection organization and the survey of vessels within means of Directive 94/57/EC;e) certification of sea trials;f) community registration of the fishing fleet;g) any other documents providing relevant infor-mation on vessel power or any related technical characteristics.

(2) If, after analyzing the information covered in paragraph 1, there are indications that the engine power of a given fishing vessel is greater than the power stated on its fishing license, Member States shall proceed to a physical verification of its engine power.

b) fishing vessels subject to limitations of power in accordance with national or EU legislation.c) fishing vessels for which the ratio of vessel pow-er (kW) to vessel tonnage (GT) is 50% lower than the average ratio for the same type of fishing ves-sel, gear type and target species. For the purpose of that analysis, Member States may divide the fleet according to one or several of the following criteria:

- fleet segmentation or management units defined in national law,

- length categories, - tonnage categories, - gears used, - target species.

2. Member States may consider other risk criteria following their own assessment.

3. Member States shall draw up a list of their fishing vessels which meet one or more of the risk criteria referred to in paragraph 1 and, where appropriate, the risk criteria referred to in paragraph 2.

4. Member States shall take a random sample from each group of fishing vessels established in accordance to one of the risk criteria referred to in paragraph 1 and 2. The size of the sample shall be equal to the square root rounded to the nearest whole number of fishing vessels in the group con-cerned.

5. For each fishing vessel included in the random sample, Member States shall verify all technical documents as referred to in Article 41(1) of the Control Regulation in their possession. Among the other documents as referred to under letter (g) of Article 41(1) of the Control Regulation, Member States shall pay special attention to the engine maker catalogue specifications, where available.

6. This Article shall apply as from 1 January 2012. Physical verifications as referred to in Article 41(2) of the Control Regulation shall priorities trawlers operating in a fishery subject to a fishing effort regime.

Physical Verification

Article 63

(1) When propulsion power measurements are per-formed on board a fishing vessel in the framework of a physical verification of propulsion engine pow-er as referred to in Article 41(2) of the Control


Continuation


Regulation, the propulsion engine power may be measured at the most accessible point between the propeller and the engine.

(2) If the power of the propulsion engine is meas-ured after the reduction gear, an appropriate correction shall be applied to the measurement in order to calculate the propulsion engine power at the engine output flange according to the defini-tion in Article 5(1) of Regulation (EEC) No 2930/86. That correction shall take into account the power losses resulting from the gearbox on the basis of the official technical data provided by the gearbox manufacturer.

It is important to note that verification should be performed to check if the engine power of the vessel corresponds to the power stated on their fishing license. Therefore, it is understood that this verification should be performed by authorized fishing authorities. If we take into account, as already explained, that Law 3/2011 considers as a serious infringement within the management of the fishing sector the non compliance with the legislation in force concerning engine power. There-fore, there should be the competent fishing authorities of the AA.CC the ones in change of carrying out this verification.

According to the 2013 MAGRAMA report on activities, the sampling plan and control of the engine power corresponding to 2013 had been performed492. This sampling plan is not publicly available.

The 2014 report on the balance between the fishing capacity and the fishing possibilities required by Article 22 of the Fisheries Control Regulation provides that “from a total of 7,163 vessels with an engine on board which were part of the Spanish fleet by 31 December 2011, a sample of 97 vessels were randomly chosen and the documentation required in Article 41 of said Regulation was veri-fied. In 16 cases certain signs were detected which indicated that the vessels engines could have a higher power than the certified one. Navigation tests were carried out in these 16 vessels, install-ing a torsiometer in the engine which measures the actual power of the engine. Severe anomalies were found in four of these vessels. An administrative procedure has been opened against these vessels, requesting them to withdraw certain engine power, making the power already withdrawn compensate the excess of power measured in the verification”493.

There is no information available on how control of engine power in Spain is conducted. Meanwhile, in other places there is vast information over the control process. For example, the Scottish Navy, manages control in three phases494:

1) Auditing pre-inspection based on data verification sampling plan.

2) Initial inspection of the vessel; a visit is to be made to each of the vessels selected in the sampling plan to inspect the installation of the motor and compare the details with the documentation examined during the audit. If the engine details match those found in

492 Page. 1287, available online at: http://www.magrama.gob.es/es/ministerio/servicios/publicaciones/m_pesca_tcm7-347421.pdf.493 Page 8 of this report. See section C, paragraph 2.2.1. of this document.494 Source: http://www.gov.scot/Resource/0044/00449974.pdf.


http://www.gov.scot/Resource/0044/00449974.pdf


the audit and that the engine is not modified, the vessel will in principle not be subject to further action.

3) Physical check of the engine: engine power is determined through shaft from a power measurement kit by Datum Electronics.

The provisional version 1.1 of the 2014-2020 EMFF of the Spanish Operating Program stated the following: “Due to the large number of vessels that compose the Spanish fleet and the different existing modalities, a new system of control and verification of the engine power is required”495. Therefore, although there is a sampling plan, in the light of this document it can be assumed that the Administration is not satisfied.

Control of fleet management

To control fishing capacity, the Fisheries Control Regulation requires MS to carry out the necessary checks to ensure that the total capacity corresponding to the fishing licenses issued by a MS, in gross tonnes (GT) and kilowatts (kw) and to ensure that they do not exceed the maximum capacity levels set by MS at any given time. However, the 2014 annual report of fishing fleet activity submitted to the EC by Spain does refer to the control mechanisms required by the RCFP, in particular the applicable testing methods.

The Fisheries Control Regulation prohibits operating with fishing vessel equipped with an engine whose power exceeds that established in the fishing license. However, the previous wording of Article 117 of Law 3/2001 allowed until 31 July 2015, to regularize the entries in the Register of Ships and Shipping Companies, dependant on the Minis-try of Development, as well as in the Census of Operational Fishing Fleet, in relation to those fishing vessels whose hull material, propulsion power or values of length, width, strut or tonnage do not coincide with their registry information. Thus, it has been implic-itly recognized that, up to the referred date, there could have been vessels that did not comply with the prohibition established; despite the fact the Fisheries Control Regula-tion prohibited it from 1 January 2010.

495 We assume that in 2014 there was not still such system of control and verification of the engine power.

Illustration 8:

Power measuring kitSource: Datum Electronics http://www.datum-electronics.co.uk/


The DG for Merchant Marine is in charge of the certification of engine power in Spain and may authorize collaborating entities to undertake such verification. It should be noted that although the Fisheries Control Regulation does not allow certification in cases where the engine has the capac-ity to develop more maximum continuous engine power than stated in the engine certificate, RD 1549/2009, allows a limit of 20% of the maximum recognized power for the corresponding model and engine type to be installed in a new unit which is contrary to the EU regulations.

In principle, the verification of engine power corresponds to the fishing authorities of the AA.CC. Nevertheless, it has been recognized the need to improve the verification system in Spain.

2.3. Multiannual Plans

One of the measurements that the PPC foresees in order to achieve a sustainable exploitation of fishing resources is the management of specific fish stocks through multiannual plans.

Multiannual plans are adopted on the basis of scientific, technical and economic496 advice, and in conjunction with advisory councils, operators from the fishing sector, scientists and third parties interested with fisheries management497. They can be directed to a single species or to multiple stocks if these are jointly exploited in a particular geographical area498, and there is intention to maintain or restore the volume of these stocks above levels capable to producing the maximum sustainable yield499.

The long-term management of fishing activities through multi-annual recovery500 and manage-ment501 plans were introduced in the 2002 CFP reform. However, with the entry of the CFPR in 2013 it was included for the first time the objective of the maximum sustainable yield and a deadline for its achievement, measures concerning the implementation of the landing obligation502, objectives for technical measures, and if necessary, review clauses503.

496 Art. 9.1, CFPR. 497 Ibid. Section 24, Preamble.498 Ibid. Art. 9.3.499 Ibid. Art. 9.1, Article 4.7, Ibid. defines “maximum sustainable yield” as “maximum theoretical equilibrium yield that on average can be extracted continuously, from a population under existing environmental conditions without significantly affecting their reproduction process. 500 Art. 5, Regulation (EC) 2371/2002.501 Ibid. Art. 6.502 In this line, Article 15.5 of the CFPR states Details of the implementation of the landing obligation referred to in paragraph 1 shall be specified in multiannual plans referred to in (...) including: a.) specific provisions regarding fisheries or species covered by the landing obligation (...); b) the specification of exemptions to the landing obligation of species (...), c.) provisions for de minimis exemptions of up to 5 % of total annual catches of all species subject to the landing obligation (...) d.) provisions on documentation of catches; e.) where appropriate, the fixing of minimum conservation reference sizes (...).”503 Art. 10, Ibid. states “1. As appropriate and without prejudice to the respective competences under the Treaty, a multiannual plan shall include: a) the scope, in terms of stocks, fishery and the area to which the multiannual plan shall be applied; b) objectives that are consistent with the objectives (...); c) quantifiable targets such as fishing mortality rates and/or spawning stock biomass; d) clear time-frames to reach the quantifiable targets; e)conservation reference points consistent with the objectives set out in Article 2; f) objectives for conservation and technical measures to be taken in order to achieve the targets set out in Article 15, and measures designed to avoid and reduce, as far as possible, unwanted catches; g) safeguards to ensure that quantifiable targets are met, as well as remedial action, where needed, including for situations where the deteriorating quality of data or non-availability put the sustainability of the stock at risk. 2. (...) may also include: a) other conservation measures, in particular measures to gradually eliminate discards (...) or to minimize the negative impact of fishing on the ecosystem (...); b) quantifiable indicators for periodic monitoring and assessment of progress in achiev-ing the targets of the multiannual plan; c)where appropriate, specific objectives for the freshwater part of the life cycle of anadromous and catadromous species. 3. A multiannual plan shall provide for its revision after an initial ex-post evaluation, in particular to take account of changes in scientific advice.


Within the current CFP framework, the EC has only adopted a proposal for a multiannual plan for the management of fishing activity of several fish stocks in the Baltic Sea504, which was approved by the EP on 28 April 2015. At this moment, there are still negotiations pending between the EP and the Council on the prospects of reaching an agreement in first reading505.

Prior to enforcement of the CFPR, the following multiannual plans were adopted which are still in force:

� The cod recovery plan: North Sea, Kattegat, Skagerrak, Eastern Channel, Irish Sea, and West of Scotland506.

� The Northern hake recovery plan507.

� The Southern hake and Norway lobster recovery plan508.

� Multi-annual plan for sole, Bay of Biscay509.

� Multi-annual plan for sole, Western Channel510.

� Multi-annual plan for sole and the European plaice, North Sea511.

� Measurements for the recovery of the European eel512.

� The Baltic cod multi-annual recovery513.

� The West Scotland herring long term514.

� The Black halibut recovery plan515.

504 Proposal for a Regulation of the European Parliament and of the Council establishing a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea and the fisheries exploiting those stocks, amending Regulation (EC) No 2187/2005 and repealing Council Regulation (EC) No1098/2007. (COM (2014)614).505 MEPs vote for sustainable fishing in the Baltic Sea, Press note of 28.04.2015. Available online at: http://www.europarl.europa.eu/news/es/news-room/content/20150427IPR46519/html/MEPs-vote-for-sustainable-fishing-in-the-Baltic-Sea. 506 Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploit-ing those stocks and repealing Regulation (EC) No 423/2004. This regulation was amended by Council Regulation 1243/2012 of 19 December 2012.507 Council Regulation (EC) No 811/2004 of 21 April 2004 establishing measures for the recovery of the Northern Hake (OJL 50, of .04.30.2004, p. 1). This regulation was modified with the entry into force of the CFPR.508 Council Regulation (EC) No 2166/2005 of 20 December 2005, establishing measures for the recovery of the Southern hake popula-tion and Norway lobster stocks in the Cantabrian Sea and western Iberian Peninsula and amending Regulation (EC) No 850/98 for the conservation of fishery resources through technical measures protection of juveniles of marine organisms (OJ L 345, of 12.28.2005, p.5).509 Council Regulation (EC) No 388/2006 of 23 February 2006 establishing a multiannual plan for the sustainable exploitation of the stock of sole in the Bay of Biscay (OJ L 65, of 03.07.2006, p. 1). This Regulation was amended after the CFPR entered into force. 510 Council Regulation (EC) No 509/2007 of 7 May 2007 establishing a multi-annual plan for the sustainable exploitation of the stock of sole in the Western Channel (OJ L 122, of 05.11.2007, p.7). This Regulation was amended through the entry into force of the CFPR.511 Council Regulation (EC) No 676/2007 of 11 June 2007 establishing a multiannual plan for fisheries exploiting stocks of plaice and sole in the North Sea (OJ L 157, of 06.19.2007, p.1). This Regulation was amended through the entry into force of the CFPR. 512 Council Regulation (EC) No 1100/2007 of 18 September 18 2007 establishing measures for the recovery of the stock of European eel (OJ L 248, of 09.22.2007, p.17).513 Council Regulation (EC) No 1098/2007 of 18 September 2007 establishing a multiannual plan for the cod stocks in the Baltic Sea and the fisheries exploiting those stocks, amending Regulation (EEC) No 2847/93 and repealing Regulation (EC) No 779/97 (OJ L 248, of 09.22.2007, p. 1). This Regulation was amended by the CFPR, Regulation 2015/812, and others. Its replacement is expected when the proposal for a multi-stock multi annual plan for the management of fisheries in the Baltic is approved (COM (2014) 614).514 Council Regulation (EC) No 1300/2008 of 18 December 2008 establishing a multi-annual plan for the stock of herring distributed to the west of Scotland and the fisheries exploiting that stock (OJ L 344, of 12.20.2008, p. 6). This Regulation was amended after the CFPR entered into force. 515 Council Regulation (EC) No 2115/2005 of 20 December 2005 establishing a recovery plan for Greenland halibut in the framework of the Northwest Atlantic Fisheries Organization (OJ L 340, of 12.23.2005, p. 3). This Regulation was amended by Regulation (EC) 1197/2007 of the Council of 30 November 2009 (OJ L 322, of 09.12.2009, p. 1) and the CFPR.

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� The Bluefin tuna recovery plan516.

Spain has adopted measures in relation to the multiannual plans which have an impact on fisheries where the Spanish fleet operates, (i.e.: Northern hake, Southern hake or the black halibut, among others). Among these, the regulation concerning the fishery of Bluefin tuna is the further developed.

2.3.1. conTrol of mulTiannual plans

The Fisheries Control Regulation regulates different control measures for multi-annual plans con-cerning:

� The conditions for weighing catches of fish species subject to multiannual plans when transfers occur517.

� The designation of ports for the landing of catches subject to multiannual plans, above the appointed quantity518.

� The separate stowage of catches of demersal species subject to multiannual plans519.

� The utilization of quotas in real time, for the purpose of frequent access to data regarding fishing catches with the EC520.

� The adoption of national control programs applicable to each multiannual plan521.

� Prior notification before reaching port522.

2.3.1.1. Transshipment in port

All the species subject to a multiannual plan which are going to be transhipped either to designated ports or in waters near the coastline must be weighed in accordance with the requirements set in Article 60 of the CFPR523.

In the Spanish case, the weighing of these catches may be conducted on the basis of a sampling plan approved by the EC, with the exception of Bluefin tuna524.

Transhipment of Pelagic catches which are subject to multiannual plans without being weighed is allowed, provided that the following conditions are met525:

� It is on board a control observer526, or an agent527, designated by the MS of the receiving fishing vessel.

516 Council Regulation (EU) No 302/2009 of 6 April 2009 concerning a multiannual recovery plan for Bluefin tuna in the eastern Atlantic and Mediterranean, amending Regulation (EC) No 43/2009 and repealing Regulation (EC) No 1559/2007 of 17 December 2007. This Regulation was amended by Regulation (EU) 500/2012 of 13 June (OJ L 157, of 06.16.2012, p.1).517 Art. 42, CFPR. 518 Art. 43, Ibid.519 Art. 44, Ibid.520 Art. 45, Ibid.521 Art. 46, Ibid.522 Art. 17, Ibid. See paragraph C, section 2.1.1.2 of this document.523 See section 2.6.3.1 of this document.524 According to paragraph 4 of the Spanish Sampling Plan, this will not be applicable to monkfish, bluefin tuna, albacore tuna, bigeye tuna, bonito and swordfish. Among these species, the bluefin tuna is the only one subject to a multiannual plan. 525 Art. 42.2, CFPR.526 See section 2.7 of this document.527 See section 2.8 of this document.


� An inspection must be conducted before the departure of the receiving vessel. For this to happen, the captain of the receiving vessel shall inform the designated authorities of the MS 24 hours before the vessel’s departure.

� In case the receiving vessel carries out fishing activities following transhipment528, it must always keep on board an observer or agent until the received catches are landed.

� The received catches must be weighted once products are landed in the designated port.

In Spain, there are only detailed regulations concerning the fishery for Blue fin tuna. Order AAA/642/2013 requires the weighing and documentary control of any quantity of Blue fin tuna that is to be landed or transhipped529, not making use of the exemption contained in article 42.2 of the Fisheries Control Regulation.

The weighing shall always be carried out by the competent authorities of ports where the tran-shipment of catches is taking place given that transhipment of Bluefin tuna at sea is absolutely prohibited530.

2.3.1.2. Designated ports

When within the framework of a multiannual plan, the Council sets a maximum quantity in live-weight of catches above which masters of fishing vessels shall land its catches in a designated port or in a place close to the shore531, MS shall be responsible for designating said ports and their locations532.

The designated ports and locations shall meet the following characteristics:

� Have established landing or transhipment times and locations533.

� Established inspection and surveillance procedures, in case the national control pro-gram534 does not include a plan approved by the EC on the modalities of control in the designated ports that guarantees authorities the same level of control535.

The Council has only approved this measurement for the following fisheries:

� Bluefin Tuna, at any quantity536.

� Northern Hake, for quantities exceeding two tons537.

� Cod of the North Sea, Kattegat, Skagerrak, Eastern Channel, Irish Sea, and West of Scot-land, for quantities exceeding two tons538.

� Cod in the Baltic Sea, for quantities exceeding 750 Kg539.

528 Article 42.2, CFPR states that the presence of an observer or agent on board the receiving vessel until the landing of the catches transhipped shall be also required in the event that the receiving vessel has carried out fishing activities prior to transhipment.529 Art. 7.2, O AAA/642/2013.530 Art. 12, Ibid.531 Art. 43 paragraph 1 and 2, Fisheries Control Regulation.532 Art. 43.4, Ibid.533 Art. 43.5, a.) and b.), Ibid.534 See paragraph C, section 2.3.1.5 of this document.535 Art. 43.5, c.), in conjunction with paragraph 7, CFPR.536 Art. 17, Regulation (EU) No. 302/2009.537 Art. 9, Regulation (EC) 811/2004.538 Art. 25, Regulation (EC) No 1342/2008.539 Art. 18, Regulation (EC) 1098/2007. Spain has not adopted any legal instrument designating ports where such catches can be land-


� Black Halibut, at any quantity540.

In compliance with the obligation set in Article 43.4 of the Fisheries Control Regulation, Spain has designated ports for the landing of Bluefin tuna with an indication of the days of the week and time-lines set for carrying out the landings and transhipments 541 of the northern hake542, and codfish in the geographical areas of the Northern Sea, Kattegat, Skagerrak, Eastern Channel, Irish Sea, and West of Scotland543.

In the case of black halibut, a reference is made relating to “the authorized ports for the unloading of the black halibut” in Article 10 of Order from 21 December 1999, which regulates the activity of the Spanish fleet operating in the zone subject to regulation of the Northwest Atlantic fisheries organization544. However, we have not been able to identify the existence of a legal instrument des-ignating said ports.

Spain has also adopted other legal instruments which designate ports for the landing of other spe-cies not subject to multiannual plans, (i.e.: landing of more than 10 tons of herring, mackerel and horse mackerel545, landing of more than 100 kg of deep sea species546, and landing of fisheries products of fishing vessels from third countries547, among others). Nevertheless, these instruments have been adopted based on other obligations established by the EU, and not under Article 43 of the Fisheries Control Regulation.

2.3.1.3. Separate stowage of demersal catches

The Fisheries Control Regulation establishes the obligation to stow separately catches of demersal

ed since they don’t have fishing interests in that fishery.540 Art. 8, Regulation (EC) No 2115/2005.541 Annex 1, Resolution of the General Secretariat of Fisheries of 9 March 2015 establishing the rules for implementing the recovery plan of Blue-fin tuna in the Eastern Atlantic Ocean and the Mediterranean Sea. 542 Annex 1, Resolution of 31 October 2005, of General Secretariat of Fisheries amending the list of ports authorized for landing of more than two tons of Northern hake originating from certain areas of the International Council for the Exploration of the Sea established in Order APA/2086/2004 of 22 June (BOE No. 273 of 11.15.2005).543 These ports shall be the same as those designated for the landing of more than two tonnes of Northern hake. Source: National Pro-gram for Control Measures in accordance with Annex III of Council Regulation (EC) No 1342/2008 of 18 December 2008 establishing a long-term plan for cod stocks and the fisheries exploiting those stocks. Available online at: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32008R1342.544 BOE No. 4, of 01.05.2000. This Order was amended by Order APA/2137/2005, of 23 June (BOE No. 159, of 07.05.2005).545 Order ARM/2017/2011. The obligation to designate authorized ports for landing was established in line with Commission Regulation (EC) No 1542/2007, of 20 December 2007 on landing and weighing procedures for herring, mackerel and horse mackerel (OJ L 337, of 21.12.2007, p. 56). This Regulation was repealed by the Implementing Regulation, in order to facilitate the implementation of the fisheries control system through a single instrument. 546 Order APA/874/2003 of 10 April, establishing the ports where to carry out landings of more than 100 kg of deep sea species orig-inating from subareas I to XIV of the International Council for the Exploration of the Sea (ICES), and in European waters located within CECAF Areas 34.1.1, 34.1.2, 34.1.3 and 34.2 (BOE No. 89, of 14.04.2003). This Order has been amended later on in various occasions. The obligation to designate ports for the landing of these quantities of stocks has been adopted in line with Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific access requirements and associated conditions applicable to fishing for deep-sea stocks (OJ L 351, of 28.12.2002, p. 16). This Regulation has been amended to bring it in line with the landing obligation, last time through Regulation (EU) 2015/812.547 Resolution of 28 May 2010, of the Directorate General for Fisheries and Aquaculture Resources publishing the Agreement of the Council of Ministers of 20 May 2010, which amended the Annex to the Agreement of the Council of Ministers of 4 December 2009, on the designation of ports where landing and transhipment operations of fisheries products are permitted and concerning the provision of port services third country vessels, including the port of Barbate. This Regulation is in line with the provisions of the IUU Regulation. See footnote No. 243 of this document.

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stocks subject to multiannual plans that are retained on board fishing vessels of 12 meters length overall or more.

These catches must be stowed in accordance with a stowage plan548 and each species in question must be placed in boxes, compartments, or separate containers549.

Although this obligation is not regulated by Spanish law, we identified the existence of a resolution concerning a sanctioning procedure and a judgment considering as an infringement the failure to comply with the obligation to submit a sewage plan. Therefore, we understand that this obligation is being correctly applied550.

2.3.1.4. Utilization of quotas in real time

In the event that catches of stocks subject to multiannual plans reach a certain threshold of the national quota allocated for said stock in that year, competent authorities shall communicate the EC more frequently than what is established in Articles 33 and 34 of the Fisheries Control Regula-tion551. Nevertheless, given that the Council has not adopted a decision regarding the frequency of this communication, it is understood that Article 34 is also the basic reference for stocks subject to multiannual plans552.

2.3.1.5. National Control Programs

MS have the responsibility to adopt and notify the EC´s control program for each multiannual plan. Inspections carried out within these national control programmes shall be in line with the parame-ters set out in the EU legislation553, and will be periodically reviewed in such manner that they will gradually evolve until reaching the objective parameters reflected in paragraph 4 of Annex 1, Fish-eries Control Regulation554.

In the Spanish case, there is knowledge about the existence of these national control programs 548 Art. 44.2, of the Fisheries Control Regulation states that: “(…) a stowage plan that shows the location of the different species in the holds”.549 Art. 44, Ibid. 550 Sanctioning Procedure No. 6/11, Asturias Fishing “Playa de Arbela” Judgment of the National High Court of 8 July 2010. Appeal No. 27/2010, PO No. 133/2008.551 See paragraph C, section 2.1.3 of this document.552 Art. 45. Fisheries Control Regulation states: “1. When accumulated catches of stocks subject to a multiannual plan have reached a certain threshold of the national quota, data on catches shall be sent more frequently to the Commission. 2. The Council shall decide on the relevant threshold to apply and the frequency of the communication of the data referred to in paragraph 1”.553 Annex I, Ibid. states: “1. Each Member State shall set specific inspection benchmarks in accordance with this Annex. 2. Inspection and surveillance of fishing activities shall concentrate on fishing vessels likely to catch species subject to a multiannual plan. Random inspections of transport and marketing of species subject to a multiannual plan shall be used as a complementary cross-checking mech-anism to test the effectiveness of inspection and surveillance. 3. Different gear types shall be subject to different levels of prioritization, depending on the extent to which the fleets are affected by fishing opportunity limits. For that reason, each Member State shall set spe-cific priorities. 4. Not later than one month from the date of entry into force of a Regulation establishing a multiannual plan, Member States shall implement their inspection schedules taking account of the targets set out below Member States shall specify and describe which sampling strategy will be applied. The Commission shall have access on request to the sampling plan used by the Member State (…)”.554 “(…) a) Level of inspection in ports: as a general rule, the accuracy to be achieved should be at least equivalent to what would be obtained by a simple random sampling method, where inspections shall cover 20 % of all landings of species subject to a multiannual plan by weight in a Member State. (b) Level of inspection of marketing: Inspection of 5 % of the quantities of species subject to a multi-annual plan offered for sale at auction. (c) Level of inspection at sea: Flexible benchmark: to be set after a detailed analysis of the fishing activity in each area. Benchmarks at sea shall refer to the number of patrol days at sea in the management areas, possibly with a sepa-rate benchmark for days patrolling specific areas. (d) Level of aerial surveillance: Flexible benchmark: to be set after a detailed analysis of the fishing activity conducted in each area and taking the available resources at the Member State’s disposal into consideration”.


for those stocks which are subject to that obligation. Although the content of these programmes is private, they have been notified to the EC.

2.3.2. failure To comply wiTh obligaTions concerning mulTiannual plans

The Fisheries Control Regulation provides several measures that the EC can apply in case a MS fails to comply with their obligation to implement a multiannual plan:

� Temporary closure of the particular fishery of that MS, when there is evidence that the failure to comply with the obligations of the MS entail a serious threat to the conservation of the affected fish species555.

� Deduction in that year or following years of the national quotas for that stock or group of stocks in that MS, when there is evidence that the failure in compliance could lead to a serious threat for the conservation of such stocks. Such deduction shall be undertaken by applying the proportionality principle based on the damage caused to the stocks in question556.

Likewise, falsification in the recording of catches regarding stocks subject to a multiannual plan in more than 500 Kg or 10%, which is calculated as a percentage of the fishing logbooks figures, is classified as a serious infringement according to European law557, and will therefore entail the cor-responding sanction558.

Control of Multiannual Plans

From this analysis, it can be concluded that the rules adopted by Spain in relation to the control of multiannual plans are in line with the European legislation.

Spain has adopted detailed regulation concerning the control of Bluefin tuna stocks. However, for the rest of fish stocks, the adopted legislation is barely limited, and in some cases nonexistent. Nonetheless, since the European legislation is directly applicable, obligations concerning those fisheries directly affecting Spain should be correctly applied.

The Fisheries Control Regulation regulates the direct obligation for all MS to desig-nate a series of authorized ports for the landing of certain fish stocks. Therefore, Spain has designated ports for all species subject to this obligation. However, we have been unable to identify the instrument which designates those ports for the landing of black halibut catches.

555 Art. 104. Ibid.556 Art. 107, Ibid.557 Art. 84.1, a), Ibid.558 See sections 2.12.3, 2.12.4, and 2.12.15 of this document.


Continuation

The obligation concerning the separate stowage of demersal catches subject to multian-nual plans for designated vessels does not appear to be regulated in the Spanish legal system. However, we have been able to identify the existence of a sanctioning proceed-ings resolution and a judgment considering as an infringement the failure in compliance with the obligation to submit a stowage plan. Thus, we understand that this obligation is being correctly applied.

The Spanish competent authorities have notified the EC on the national control pro-grams for those species subject to the obligation in accordance with the provisions set in the Fisheries Control Regulation.

2.4. Management of Technical Measures

Technical measures are one of the main pillars on which the EU is based in terms of managing fishing resources, with the aim to ensure their sustainable conservation and exploitation559. These measures, although are applicable to all European maritime basins, they will be different based on the characteristics of the basin.

According to Article 7.2 of the CFPR, technical measures may include the following elements:

a) Characteristics of fishing gears and rules concerning their use;

b) Specifications on the construction of fishing gear, including:

� Modifications or additional devices to improve selectivity or to minimize the negative impact on the ecosystem;

� Modifications or additional devices to reduce the incidental capture of endangered, threatened and protected species, as well as to reduce other unwanted catches;

c) Limitations or prohibitions on the use of certain fishing gear and on fishing activities, in certain areas or periods;

d) Requirements for fishing vessels to cease operating in a defined area for a defined minimum period in order to protect temporary aggregations of endangered species, spawning fish560, fish below minimum conservation reference size, and other vulnerable marine resources;

e) Specific measures to minimize the negative impact of fishing activities on marine bio-diversity and marine ecosystems, including measures to avoid and reduce, as far as possible, unwanted catches.

559 Article 4.20 of the CFPR defines “technical measure” as a measure that regulates the composition of catches by species and size and the impacts on components of the ecosystems resulting from fishing activities by establishing conditions for the use and structure of fishing gear and restrictions on access to fishing areas”. 560 Spawning is defined as “set of eggs of a fish or group of fish freshly coming out of them”.


In order to ensure that MS effectively implemented these technical measures, control measures were adopted with the Fisheries Control Regulation relating to:

� The utilization of fishing gears;

� Restricted fishing zones, and

� RTC.

2.4.1. uTilizaTion of fishing gears

In general, fishing gears are classified in two main categories: passive and active. This classifica-tion is based on the relative behavior of the target species subject to fishing and the fishing gear, notwithstanding the existence of specialized varieties within each type of gear561:

Table 21: GENERAL CLASSIFICATION OF FISHING GEAR562

Active Fishing Gear Passive Fishing Gear563

Its use requires an active movement of the gear, directed towards the target species of fish: � Spears and harpoons. � Trawls and dredges. � Seine nets. � Beach seines. � Purse seines.

Its use does not require active movement and depends on the movement of the target species towards the gear: � Gillnets, entangling nets, trammel nets, and trap

nets. � Drifting gillnets, and drifting trammel nets, any of

which may be equipped with anchoring, floating and navigational gear.

� Long lines, hand lines, trolls. � Pots and traps.


The use of one type of fishing gear or another always depends on the type of fish species being tar-geted. Other factors taken into account include its size or minimum catch weight and the period or fishing zone in which vessels are authorized to fish. The MAGRAMA shall be the responsible body for establishing all the conditions relating to fishing gear, including their technical characteristics, use conditions, transport or stowing or even their prohibition on board563.

2.4.1.1. Fisheries where fishing is only allowed with one type of fishing gear

There are fisheries564 in which fishing is only allowed with one type fishing gear because of the char-acteristics of the fishery. This is reflected in national law through different legal instruments:

� Order APA/2586/2002, of 11 October regulating fishing under the, “to the point” method

561 Bjordal, A., The use of technical measures in responsible fisheries: Regulation of fishing gear. In: FAO: A fishery manager’s guide-book Management Measures and Their Application. FAO Corporate Document Repository No. 424, Rome, 2005. Available at: http://www.fao.org/docrep/005/y3427e/y3427e04.htm#bm04.2.562 Art. 2.6, Implementing Regulation.563 Art. 10.2 Law 3/2001.564 Fishery is defined as: “the sum of all fishing activities on a given resource, for example a hake fishery, or shrimp fishery, or the activi-ties of a single type or method of fishing for a resource e.g. net fishing beach fencing or trawling”. FAO, technical measures in Fisheries FAO, Fisheries Management. Technical guidelines for responsible fishing No 4, Rome, 1999. Available online at: http://www.fao.org/docrep/003/w4230s/w4230s09.htm.

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“al puyón” 565 modality in a certain areas of the National Fishery of the Canary Islands. This modality is foreseen for the fishing of the species known as old parrotfish566.

� Order APA/1589/2005, of 31 May establishing a plan for lobster fishing with pots in cer-tain areas of the Eastern Cantabrian.

� Order APA/3456/2006, of 2 November regulating the anchovy fishery in the Gulf of León567.

� Order APA/2150/2007 of 13 July 13establishing an extensive management plan for the anchovy fishery in the Bay of Vizcaya568.

� Order AAA/1589/2012 of 17 July regulating the voracious fishery (Pagellus bogaraveo) with the fishing gear known as “Voracera” 569 in the Strait of Gibraltar.

� Order AAA/627/2013 of 15 April establishing a Management Plan for vessels of the national fishing ground Gulf of Cadiz census. Annex II of this Order regulates the fishing plan for bottom trawling in external waters of the Gulf of Cadiz. This model is the only one that expressly provides for lobster fishing during periods expressly authorized by the MAGRAMA570.

� Order AAA/923/2013 of 16 May regulating fishing of blue and red shrimp (Aristeus anten-natus) with bottom trawling gear in certain sea areas nearby Palamós571.

� Order AAA/1688/2013 of 10 September regulating the fishing of dolphin fish (Coryphae-na hippurus) and associated species, with lampuguera gear572 in the external waters of the Balearic archipelago.

� Order AAA/658/2014 of 22 April, regulating fishing with surface long line gear573 for cap-turing highly migratory species574. In this case, the species that should be exclusively caught with surface long line gear are the blue shark, shortfin mako shark, and pelagic sharks575.

565 Art. 2 of Order APA/2586/2002 of October 11 states that “It is known as al puyón fishing, that undertaken with the gear so-called “puyón” by one or more professional fishermen with operate swimming free lung, on the water surface nearby the fishing vessel. The “puyón” gear consists on a hand line conveniently hampered at the end and provided with a hook”. 566 BOE No. 252, of 10.21.2002.567 Art. 2 states that all vessels authorized for anchovy fishing in this zone will be those taking part of the census for operational fishing fleet in the seine fishing mode in the Mediterranean fishing ground.568 BOE No. 169, of 07.16.2007. As a condition to carry out this activity, Art. 2.b) states that vessels shall “belong to the Cantabrian and Northwest seine modality”.569 Article 2 of Order AAA/1589/2012 defines “voracera” as “the fishhook gear consisting on a main line so-called mother line from which snood hooks hang at regular intervals. The lower end of the gear carries a drag rig attached to the main line by a falsetto made with thin wire, which aims to break the hoisting rigging, leaving the ballast in the bottom and widespread rigging on it”.570 For 2015 these periods were regulated through Order AAA/142/2015, of 2 February, establishing for 2015 allowed fishing periods for the bottom trawling fleet of the Gulf of Cadiz fishing ground to capture lobster. (BOE No. 30, of 04.02.2015).571 BOE No. 126, of 05.27.2013. 572 Art. 2 of Order AAA/1688/2013 defines “lampuguera” as “a gear of an almost rectangular shape formed by several pieces of nets of different sizes, armed between two bolt-ropes, the top provided with flotation elements and the bottom of weights, with or without purse seines. The maximum dimensions of this gear will be 200 meters in length and 22 meters in height.573 Article 1.2 of Order AAA/658/2014 defines “surface long line as “a craft or fishing gear which comprises a main line mother called out, variable length, the other hanging at intervals called snoods, which hooks of different sizes are tied, according to the fishery re-source to which they apply. At the ends and along the stem out the elements necessary funding and flotation are arranged to keep the rigging at different depths but without support or have any contact with the seabed”.574 BOE No. 102, of 28.04.2014.575 Art 1.2 of Order ARM/1647/2009 of 15 June regulating fishing of highly migratory species.(BOE No.150, of 22.06.2009). This Order was later on amended by Order ARM/1793/2011, 27 June (BOE No. 155, of 06.30.2011).


For this type of fishery, Fisheries Control Regulation expressly regulates the obligation to stow and tie all those fishing gears that are not to be used and establishing how this should be done576:

� Nets, weights and similar gear shall be disconnected from their trawl boards and towing and hauling wires and ropes;

� Nets which are on or above the deck must be safely secured and stowed;

� Long lines shall be stowed in the lower decks.

This obligation is directly applicable in Spain and is enough regulated by the EU legislation. So, it is understood that it applies to all fisheries mentioned above. In fact, among the serious infringements foreseen in Law 3/2001 it refers to the non-compliance with the regulations concerning the transport and stowage of fishing gear577.

However, it is necessary to mention that, among these regulations, only Order AAA/923/2013 of 16 May regulating fishing for blue and red shrimp (Aristeus) with bottom trawling gear in certain sea areas nearby Palamós refers to EU law concerning all provisions developing the implementation of the obligation to only use one type of fishing gear for a particular fishery578. All other Orders either do not reflect this obligation, or even, in some cases regulate this obligation more restrictively:

Table 22: FISHERIES WITH STRICTER REGULATIONS THAN THOSE ESTABLISHED IN THE FISHERIES CONTROL REGULATION

579 580 581

Order AAA/1589/2012 of 17 July regulating the voracious fishery (Pagellus bogaraveo) with the fishing gear known as voracera in

the Strait of Gibraltar.

� Impossibility to carry out any other fishing activity with any other type of gear during the same day in which the voracera is used.

� Impossibility to carry onboard any other type of gear or craft579.

Order AAA/1688/2013 of 10 September regulating the fishing of dolphin fish

(Coryphaena hippurus) and associated species, with lampuguera gear in the

external waters of the Balearic archipelago.

� Impossibility to carry out any other fishing activity with any other type of gear during the same day in which the lampuguera is used580.

Order AAA/658/2014 of 22 April, regulating fishing with surface long line gear for capturing highly migratory species.

� Vessels operating within the Mediterranean Sea may only carry on board one single type of gear.

� In the event of fishing trips longer than two days, a second set of mounted hooks with the same charac-teristics shall be permitted on board, provided that they are properly fastened and stowed in a separate deck than the one used for the gears length581.


2.4.1.2. Retrieval of lost gear

The Fisheries Control Regulation regulates the obligation to retrieve, as soon as possible, those 576 Art. 47, Fisheries Control Regulation.577 Art. 100.4.c), Law 3/2001. 578 Art. 5, O AAA/923/2013.579 Art. 5, O AAA/1589/2012.580 Art. 9, AAA/1688/2013.581 Art. 4.3, O AAA/658/2014.


gears that had been lost establishing a communication procedure to the competent authorities of the flag MS in the event that they could not have been retrieved.

Lost fishing gear, as well as those abandoned or discarded (Abandoned Lost or Otherwise Discard-ed Fishing Gear-ALDFG), are an issue of growing concern in the international community due to the serious threats posed on the ecosystem, the economy and the safety for navigation.

In 2011, the FAO together with the United Nations Environment Program (UNEP) published a report entitled, “Abandoned, lost or otherwise discarded fishing gear (ALDFG)” in which extensive research was undertaken concerning the impact of ALDFG and possible measures to handle them582.

The authors of this report explain that, among the principle impacts caused by ALDFG, are found:

“The ability of ALDFG to continue to fish (often referred to as “ghost fishing”) has detrimental im-pacts on fish stocks and potential impacts on endangered species and benthic environments583. Fishing gear has been abandoned, lost or otherwise discarded since fishing began, but increases in the scale of fishing operations and technologies used in recent decades mean that the extent and impact of ALDFG debris have increased significantly with the use of synthetic materials, the overall increase in fishing capacity and the targeting of more distant and deepwater grounds. ALDFG is also a concern because of its potential to become a navigational hazard (with associ-ated safety issues) in coastal and offshore areas”.

The report also explains that there are several measures to specifically address the problem of ALDFG and they can be divided into three groups:

� Preventative measures: identified as the most effective way to tackle ALDFG, as they avoid the occurrence of ALDFG, (i.e., the use of onboard technology to avoid loss, improvement of the location of gear; limitation of the number of gear to be used or the time gear can remain in water (soak-time), increase of the efficiency of measures to pre-vent IUU fishing…).

� Mitigation measures: these measures are not used very often since they can entail an increase of the gears price or limit their effectiveness (biodegradable mesh grid).

� Curative measures: are not the most effective measures to avoid the presence of ALD-FG, but have proven effective enough to reduce the impacts (i.e.: the side scan sonar for sea-bed surveys, systems to report lost gear; gear recovery programs, or disposal and recycling of gear...).

These last measures are those regulated by the Fisheries Control Regulation, establishing the obli-gation for all fishing vessels to retrieve, as soon as possible, any gear lost through equipment that is carried onboard mandatorily584.

The equipment will depend on the type of gear attempting to be retrieved. Those commonly used are:

� Creeping to retrieve lost and abandoned gillnets. It is usually attempted by towing some form of “creeper” to hook onto the nets and to provide a means of bringing them to the sea surface585.

582 FAO, UNEP, Abandoned, lost or otherwise discarded fishing gear, FAO Technical Document on Fisheries and Aquaculture N0 523. UNEP, Regional Seas Reports and Studies No. 185, Rome 2009, Pg. XX. Available online at: http://www.fao.org/3/a-i0620e.pdf.583 “Benthos” is defined as the flora and fauna found on the bottom, or in the bottom sediments, of a sea or lake (i.e.,coral, some crus-taceans, corals, certain crustaceous, pelmatozoos, ascidias, gastropods and pelecypods, gasteropods, pelecipods...).584 Art. 48.1, Fisheries Control Regulation.585 Final Report FISH/2006/15/Lot No. 5. Recuperation of fishing nets lost or abandoned at sea Studies and Pilot Projects for carrying

http://www.fao.org/3/a-i0620e.pdf


Illustration 9:

Traditional fishing gearSource: Final Report FISH/2006/15/Lot No. 5 http://ec.europa.eu/fisheries/documentation/studies/recuperation_of_fishing_net/fishing_nets_part1_en.pdf

� Ghost Nets: According to reports, ghost fishing is particularly problematic in deep water. In deep waters there are fewer currents to distort and reduce the effective fishing area of the net, no sunlight to degrade the materials, little growth of algae on the net and no other form of fishing (e.g. trawling or Danish seining) to accidently recover the gear. This means that lost or abandoned fishing gear gradually accumulates until the problem becomes very acute586. Although they are less effective than the creeping technique, they are used for sweeping the area where fishing gear has been lost. The results are especially safe, resulting specially effective for reducing negative impacts in gillnets and traps. This system cannot be used in shallow water or on reef bottoms587.

� Divers.

� Remotely operated vehicles.

The Fisheries Control Regulation foresees the possibility to exempt vessels with less than 12 meters length overall from carrying on board the equipment to retrieve lost gear, provided that they operate exclusively in Spanish jurisdictional waters or if they never spend more than 24 hours at sea from the time of departure. This exception shall be adopted by each MS.

In the Spanish case, the obligation to retrieve fishing gear is only contained in Order AAA/2794/2012 of 12 December regulating fishing with static gear and minor gear in the Mediterranean external

out the Common Fisheries Policy for the European Commission Directorate - General for Fisheries and Maritime Affairs, September 2009. Available online at: http://ec.europa.eu/fisheries/documentation/studies/recuperation_of_fishing_net/fishing_nets_part1_en.pdf.586 FAO, World inventory of fisheries. Retrieval of lost gear. Issues Fact Sheets. FAO, Fisheries and Aquaculture, Rome, May 2005. Available online at: http://www.fao.org/fishery/topic/14833/en.587 FAO, World inventory of fisheries. Retrieval of lost gear. Issues Fact Sheets. FAO, Fisheries and Aquaculture, Rome, May 2005. Available online at: http://www.fao.org/fishery/topic/14833/en.

http://ec.europa.eu/fisheries/documentation/studies/recuperation_of_fishing_net/fishing_nets_part1_en.pdf

http://www.fao.org/fishery/topic/14833/en

http://www.fao.org/fishery/topic/14833/en


waters588, which expressly refers to EU regulations regarding measures for the recovery of static or minor fishing gear lost at sea589. Therefore, it is to be understood that Spain has not applied this exemption and the obligation to carry equipment to retrieve lost fishing gear will affect all fishing vessels.

If the lost gear cannot be retrieved, the master of the vessel must communicate to the SGCI within 24 hours the loss of the gear, indicating the following information590:

� Vessel identification data (external identification number and the name of the fishing vessel);

� Type of gear lost;

� Time when the gear was lost;

� Position where the gear was lost;

� Measures undertaken to retrieve the gear.

In the event that the fishing gear is lost in jurisdictional waters of another MS, the Spanish authority will be responsible for communicating to the authorities of that MS all the data referred to above.

EU regulations provide for the possibility that when the MS finds lost gear that has not been report-ed as lost, that they may recover the cost from the master of the fishing vessel that lost the gear. This provision is not contained in Spanish law. However, Law 3/2011 foresees as minor infringe-ments, failure in complying with the obligations on reporting to the AGE591, as well as the actions or omissions involving breach of the obligations laid down in EU fisheries law592. As a result, it can be understood that the absence of reporting to the SGCI concerning the loss of any type of fishing gear is classified as an infringement within the Spanish legal system and will result in the imposition of a sanction regulated in Chapter IV, Title V of Law 3/2001593.

The provisional version 1.1 of the 2014-2020 EMFF Operational Programme for Spain foresees the development of good practices codes and collaboration programmes for the collection of fishing gear and marine waste among the specific needs to promote sustainable fishing594. Nonetheless, in 2014 existed some programmes particularly at a local level, promoting good practices within fishing communities595.

Furthermore, within the operations in which Spain intends to focus its controls, inspections and

588 BOE No. 312, of 28.12.2012.589 Art. 14, O AAA/2794/2012.590 Art. 48.3, Fisheries Control Regulation.591 Art. 99.e), Law 3/2001.592 Art. 99.g), Ibid.593 See section 2.12.13 and 2.12.14 of this document.594 Version 1.1. Operative Program of the FEMP 2014-2020 EMFF Operational Programme for Spain, p.134. Article 7.a) of Commission Delegated (EU) 2015/531 of 24 November 2014 supplementing Regulation (EU) No 508/2014 of the European Parliament and of the Council by identifying the costs eligible for support from the EMFF in order to improve hygiene, health, safety and working conditions of fishermen, protect and restore marine biodiversity and ecosystems, mitigate climate change and increase the energy efficiency of fishing vessels, states that “(…) costs relating to the following actions are eligible for support, a.) the removal of lost fishing gear from the sea, in particular in order to combat ghost fishing (…)”. On October 8, 2015 the Minister of Foreign Affairs and Cooperation, and the Undersecretary of Foreign Affairs and Cooperation approved Operative approved the EMFF. This resolution included conservation and biological recovery periods.595 Fishing equipment, lost, abandoned, or discarded. A threat for marine ecosystems and navigation, Revista Mar, No. 533, Ministry of Employment and Security, January 2014. Available online at: http://www.seg-social.es/prdi00/groups/public/documents/binario/184865.pdf.

http://www.seg-social.es/prdi00/groups/public/documents/binario/184865.pdf

http://www.seg-social.es/prdi00/groups/public/documents/binario/184865.pdf


enforcement activities for the period of 2014-2020 are found, among others, the control of technical measures of trawling gear in the Mediterranean and Gulf of Cadiz596.

2.4.1.3. Catch composition

The size of the mesh is one of the most important characteristics when determining the selective properties of a net597. The characteristics of the mesh size, as well as the concerning regulations, will be essential to reduce the chances of accidentally catching juvenile fish stocks or to avoid catching larger fish groups of a stock. As a result, it will increase the survival of the species. Net selectivity will not only depend on mesh size, but also on other conditions such as the mesh capture load or the growth characteristics of the species598.

In the case that catches are made with nets with different minimum mesh sizes during the same voyage, the Fisheries Control Regulation requires the species composition to be calculated sep-arately and to be recorded in the fishing logbook with all changes in mesh size that may have occurred, as well as the composition of catches taken on board before the changes occurred599.

While the specific dimensions of mesh openings appear to be well defined in Spanish legislation within different fisheries plans, the obligation to separately calculate the composition of captured species with the nets with different mesh sizes is not regulated. However, this obligation is clear enough in EU law that is directly applicable in Spain.

After the adoption of Regulation (EU) 2015/812 new obligations have been introduced in relation to the control of catch compositions600:

� All catches below the applicable minimum conservation reference size retained on board a Union fishing vessel shall be placed in boxes, compartments or containers in such a way that they are identifiable from other boxes, compartments or containers. Those catches shall not be mixed with any other fishery products.

- This obligation shall not apply when catches contain more than 80% of one or more small pelagic species or species for industrial use, as referred to in Article 15.1.a of Regulation (EU) No 1380/2013601;

- Fishing vessels with a total length of less than 12 meters shall be exempt from this requirement when catches below the minimum conservation reference size have been correctly sorted, estimated and recorded in the logbook602. In these cases, MS should control the composition of the catches by sampling measures.

� Obligation of MS to ensure that catches eligible for the de minimis exemption foreseen in Article 15.5.c of CFPR603, do not exceed the exemption percentage.

596 Version 1.1 2014-2020 EMFF Operational Programme for Spain, pg. 162.597 The mesh size is the distance between two knots of mesh in a fishing net.598 Bjordal, A., The use of technical measures in responsible fisheries: Regulation of fishing gear. In: FAO: A fishery manager’s guide-book Management Measures and Their Application. FAO Corporate Document Repository No. 424, Rome, 2005. Available at: http://www.fao.org/docrep/008/y3427s/y3427s04.htm.599 Art. 49, Fisheries Control Regulation.600 Art. 7.7, Regulation (EU) 2015/812.601 See Illustration 7, points a, b, c, and d, in this document.602 Art. 14, Fisheries Control Regulation. 603 Article 15.5c) CFPR, states “(…) provisions for de minimis exemptions of up to 5% of total annual catches of all species subject to the landing obligation referred to in paragraph 1. The de minimis exemption shall apply in the following cases: (i) where scientific evidence indicates that increases in selectivity are very difficult to achieve; or

http://www.fao.org/docrep/008/y3427s/y3427s04.htm

http://www.fao.org/docrep/008/y3427s/y3427s04.htm


� Catches landed below the applicable minimum reference size shall be stored separately in such a way that they are distinguished from fishery products intended for direct human consumption. MS shall ensure that compliance with this obligation is fulfilled.

2.4.2. conTrol of resTricTed fishing areas

The Fisheries Control Regulation establishes several measures to control restricted fishing zones604 that have been established by the Council. These measures shall apply to EU or third country fish-ing vessels with 12 meters length overall or more605:

Table 23: MEASURES OF CONTROL FOR RESTRICTED FISHING AREAS606 607 608

Individual subject to the obligation Obligation

FMC of Coastal States606. � Control of fishing activities undertaken by vessels author-ized to fish in that zone.

EU or third country fishing vessels with 12 meters length overall or more that are not authorized to fish in that restricted area, but willing to transit across that zone.

� Control of entries, passage and exits of that zone through a system for detection and registration.

� All gears carried on board must be lashed and stowed during the passage across that zone.

� The speed during transit across the area must not fall below six knots, except in case of force majeure or adverse con-ditions.

� In the case of force majeure or adverse conditions, the master shall immediately inform the FMC of the flag MS607.

All EU or third country fishing vessels with 12 metres length overall or more entering a restricted fishing area.

� Carry out transmissions of data concerning the fishing log-book608 in time intervals of, at least, every 30 minutes.


We have been able to identify four restricted fishing areas, all of which are regulated in Regulation (EU) No 1343/2011 of the European Parliament and the Council of 13 from December 2011 on certain provisions for fishing in the GFCM (General Fisheries Commission for the Mediterranean) Agreement area and amending Council Regulation (EC) No 1967/2006 concerning management

(ii) to avoid disproportionate costs of handling unwanted catches, for those fishing gears where unwanted catches per fishing gear do not represent more than a certain percentage, to be established in a plan, of total annual catch of that gear. Catches under the provisions referred to in this point shall not be counted against the relevant quotas; however, all such catches shall be fully recorded. For a transitional period of four years, the percentage of the total annual catches referred to in this point shall increase: (i) by two percentage points in the first two years of application of the landing obligation”.604 Art. 4.14, Fisheries Control Regulation defines ‘fishing restricted area’ as “any marine area under the jurisdiction of a Member State which has been defined by the Council and where fishing activities are either limited or banned”.605 Art. 50.5 Ibid.606 Art. 4.25 , CFPR defines ‘coastal State’ as “the State in the waters under the sovereignty or jurisdiction or in the ports of which an activity takes place”.607 Art. 50.4 b.) of the Fisheries Control Regulation states that there shall be the FMC of the flag Member State the one informing about this situation to the competent authorities of the coastal Member State.608 Art. 50.3) of the Fisheries Control Regulation states “The frequency of data transmissions shall be of at least once every 30 minutes when a fishing vessel enters a fishing restricted area”. It does not specify the type of data that shall be transmitted, but we understand that it is related to the fishing journals, since they will serve at the time of controlling whether captures have been done in that area, and in that case, the quantities captured of each species.


measures for the sustainable exploitation of fishery resources in the Mediterranean Sea (Regulation (EU) 1343/2011)609:

� Deep-sea fishing restricted area known as ‘Lophelia Reef off Capo Santa Maria di Leu-ca’, where fishing with towed dredged and bottom trawl net is forbidden610.

� Deep-sea fishing restricted area known as ‘Cold Hydrocarbon Filtration in the Nile Delta Area’ where fishing with towed dredged and bottom trawl net is forbidden611.

� Deep-sea fishing restricted area known as ‘The Eratosthenes Seamount’, where fishing with towed dredged and bottom trawl net is forbidden612.

� A restricted fishing area of demersal species in the eastern part of the Gulf of León613.

The latter is reflected in Spanish law through Order AAA/1857/2012 of 22 August establishing a restricted area for fishing demersal species in the Gulf of León614. This order aims to regulate fishing efforts undertaken by Spanish vessels registered in the modalities of bottom trawls, bottom long-lines and the minor gear of the Mediterranean fishing ground on these demersal species within an area of the eastern part of the Gulf of León615. This Order contains stricter measures for monitoring and controlling the fishing effort undertaken by vessels operating in that restricted area. The owners or masters of any vessel undertaking the fishing activity in this area are apart from the obligations required by the Fisheries Control Regulation, submit a weekly message to the DG for Fisheries Management616 containing the following information:

� Ship identification data (name and registration number).

� Registration number of the EU fleet.

� Date when the fishing activity was conducted.

� Duration of fishing activity.

� Fishing gear used.

� Catches (by species, counting the weight of each one).

2.4.3. real-Time closure of fisheries

Measures involving temporary or definitive restrictions on determined geographical zones are wide-ly used to ensure the protection and recovery of fishing resources. There exists three large groups of this type of measure established under the Fisheries Control Regulation:

� Closure of fisheries.

� Restricted fishing areas.

609 OJ L 347, of 12.30.2011, p. 44.610 Art. 10.a), Regulation (EU) 1343/2011.611 Art. 10.b), Ibid.612 Art. 10.c), Ibid.613 Art. 4, Ibid.614 BOE No. 208, of 30.08.2012.615 Art. 2, O AAA/1857/2012. Article3, Ibid. States that “In order to achieve the aims pursued by that provision, a fisheries restricted area is considered as the area bounded by the following geographical coordinates: Latitude 42° 40,0’ north; longitude 004º 20.0’ east. Latitude 42° 40,0’ north; longitude 005º 00.0’ east. Latitude 43º 00.0’ north; longitude 004º 20.0’ east. Latitude 43º 00.0’ north; longitude 005º 00.0’ east”.616 Art. 5 of O AAA/1857/2012 refers to the DGRPA as the competent authority, as it was with the old structure of the MAGRAMA. With the current structure of the MAGRAMA, this competencies correspond to the DG for Fisheries Management.


� RTCs.

What differentiates RTCs from the other two measures is that they are targeted at specific geo-graphical areas and have a very clear objective, for example, to protect juveniles in areas where their percentage is above average, to reduce discards, accidental catches or mortality of certain species, etc617.

To this end, when an RTC is issued, it shall only apply to fishing vessels granted with a fishing authorization in that particular fishing ground and which are equipped with the necessary gear for fishing the species concerned618.

In addition, the closure of the concerned area requires a quick management and processing a large amounts of data obtained from various sources, (i.e.: level of catches, composition of catches, data obtained from the VLS or data obtained from the fishing effort, among others). This is because RTCs are determined when agents, coastal MS observers or participants in joint operations under a Joint Deployment Plan619 determine “in real time” that the trigger catch level620 for specific species or groups of species has been reached. In this moment, they must inform the competent authorities of the coastal MS. Within the EU, although there is not a common RTC program these measures have been adopted in several countries such as France, England, Wales and Scotland. The main objective of these measures has been to reduce the mortality of cod in the North-East Atlantic and associated seas. Furthermore, the EU adopted, through an agreement with Norway, Commission Regulation (EU) 724/2010 of 12 August 2010 laying down detailed rules for the implementation of RTCs of certain fisheries in the North Sea and Skagerrak621.

The specific measures of each closure will vary, mainly depending on the area and the protected species. However, decisions establishing RTCs shall clearly define the following elements622:

� The geographical area of the affected fishing grounds.

� The duration and the conditions of the closure, based on the object of protection.

RTCs can be ordered either by the MS or by the EC:

617 Real Time Closure of Fisheries, Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Policies. Avail-able online at: http://www.europarl.europa.eu/RegData/etudes/note/join/2010/438598/IPOL-PECH_NT%282010%29438598_EN.pdf.618 Art. 53.4, Fisheries Control Regulation.619 Art. 53.1, Ibid.620 Art. 51.2, Ibid. states: “The trigger catch level shall be calculated on the basis of a sampling methodology adopted by the Commis-sion in accordance with the procedure referred to in Article 119, as the percentage or weight of a particular species or group of species compared to the total catch in a haul of the fish concerned.”.621 OJ L 214, of 19.8.2009, p. 1. This Regulation was amended later on by Regulation (EU) 783/2011 (OJ L 203, of 06.08.2011, p.7). It contains the conditions for the establishment of RTCs at cod, haddock, saithe and whiting, captured with fishing gear different from pelagic trawl nets, purse seines and drift nets to capture herring, mackerel and horse mackerel, pots, scallops dredges and gillnets in the North Sea or Skagerrak.622 Art. 53.2, Fisheries Control Regulation.

http://www.europarl.europa.eu/RegData/etudes/note/join/2010/438598/IPOL-PECH_NT%282010%29438598_EN.pdf


Table 24: PROCEDURES TO ORDER AN RTC623 624 625 626

Coastal MS

� MS authorities will issue the RTC, clearly defining the geographical area of the affected fishing grounds, the duration of the closure and the fishing conditions in that area during the closure.

� The coastal MS authorities shall communicate this decision to the EC, to the authorities of all other MS, and to the authorities of third coun-tries, in case they have any vessel authorized to operate in that area623.

� The EC shall verify data relating to the trigger level624: - If the information is correct: the RTC will be maintained during the

time set by the MS. - If the information is insufficient to prove that the catch trigger level

has been reached: the EC may request the MS to cancel or modify the RTC at any time and with immediate effect.

Two or more MS with jurisdiction in the affected

zone625

� The MS which has detected that the catch trigger level for a given spe-cies in that area has been reached, must communicate its findings to all other MS with jurisdiction in those waters.

� Each MS shall independently enact the RTC for its specific zone.

EC626

� The RTC will be enacted by the EC if the scope of a trigger catch level has been detected and demonstrated, and the MS has not issued it.

� The Commission shall inform without delay all MS and third countries whose fishing vessels operate in the closed area.

� The EC shall publish, without delay, in its official website a map with the coordinates of the area temporarily closed, specifying the duration of the closure and the fishing conditions in that specific closed area.


There also exist cases in which the quantity of catches exceeds a trigger level in two consecutive hauls. In this case, an RTC will not be issued, but the vessel shall change the fishing area by at least five nautical miles, or two nautical miles in the case of vessels with less than 12 meters length overall before continuing fishing. In addition, the vessel shall inform without delay the competent authorities of the coastal MS, in order to guarantee a greater monitoring and control of the area627.

In 2008, the twenty-first report of the European Committee of the House of Lords in the United King-dom published a memorandum of the Spanish Government about the management of the CFP628. In it, the Spanish Government recognized RTCs as an effective measure to avoid catching juvenile fish stocks. However the memorandum also stated that they preferred to focus on identifying areas where there was a large presence of juveniles and establishing accurate timing closures during certain periods of the year, which would ensure better activity planning and lower socioeconomic consequences than the adoption of RTCs. During the elaboration of this report, we have not been able to identify the declaration of the Spanish RTC. This leads to the conclusion that Spain still holds a similar position on RTC to that hold in 2008.

623 Art. 53.5, Ibid.624 Art. 53.6, Ibid.625 Art. 53.3, Ibid.626 Art. 54, Ibid.627 Art. 52, Ibid.628 Memorandum by the Spanish Government, Minutes of Evidence, European Union Twenty First Report, House of Lords, May 2008. Available online at: https://publications.parliament.uk/pa/ld200708/ldselect/ldeucom/146/8050704.htm.

https://publications.parliament.uk/pa/ld200708/ldselect/ldeucom/146/8050704.htm


Control of the technical measures

Based on the analysis undertaken, we can state that, with some exceptions, the Spanish legal system does not generally contain specific regulations concerning the manage-ment of technical measures. However, since these measures are directly applicable, adequate mechanisms should be used in order to ensure compliance.

In general, the obligation to stow and lash fishing gear that will not be used in those fish-eries where fishing with only one type of gear is permitted, is not reflected in the Spanish legal system. However, in some cases, we have been able to identify the existence of a stricter regulation:

� preventing any other type of fishing gear from being carried on board.

� making impossible to conduct any other fishing activity with any other gear during the same fishing day.

The obligation to retrieve fishing gear lost at sea only appears contained in Order AAA/2794/2012 of 21 December 21 regulating fishing with static gear and minor gear in the Mediterranean waters is not known whether Spain has adopted adequate measures to retrieve lost fishing gear, and if there is an effective communication procedure in cas-es of not retrieval of the fishing gear.

Likewise, we have not been able to identify the declaration of the RTC issued by the Spain.

2.5. Control of Recreational Fisheries

‘Recreational fisheries’ comprises all “non-commercial fishing activities exploiting marine living aquatic resources for recreation, tourism or sport”629. Over time, the practice of these activities has been increasing in coastal zones, and there are more vessels engaged in non-professional fishing, boats dedicated to organize excursions to facilitate recreational fisheries for third parties or sports competitions encouraging these types of practices. The proliferation of recreational fisheries activ-ities has led to an increased impact on fishery resources, making therefore necessary to require a specific control system to ensure that these activities are carried out in line with the CFP630.

In order to improve the regulation of this activity in Spanish waters, it was adopted RD 347/2011, of 11 March regulating recreational fisheries in external waters (RD 347/2011)631, which was issued in accordance with Article 36 of Law 3/2001632. This RD repealed an Order of 26 February 1999 of the

629 Art. 4.28, Fisheries Control Regulation.630 Art. 55, Ibid.631 BOE No. 81, of 04.05.2011.632 Art. 36.1, Law 3/2001 states that “The Minister of Agriculture, Fisheries and Food, after hearing the AA.CC, may establish specific measures for recreational fisheries in foreign waters because of protection and conservation of fisheries resources, and ensure that it does not interfere or harm professional fishing.”.


Ministry of Agriculture, Fisheries and Food, establishing the rules governing maritime recreational fisheries (Order of February 26, 1999)633.

This new regulation guarantees better control of recreational fisheries, through the following meas-ures:

� Catch limits for species of fish and cephalopods listed in Annex I, and always respecting the minimums634 established by RD 560/1995 of 7 April, which establishes the minimum sizes of certain fish species635.

� The obligation for each vessel to keep a fishing license issued by the competent author-ities of the corresponding AC, or, in certain cases, of the cities of Ceuta and Melilla for carrying out any recreational fisheries activity. These licenses must be updated each year636.

Notwithstanding the fact that the AGE owns exclusive powers within maritime fisheries in external waters637, it will be the AC where the vessel has its home port638, or the auton-omous cities, as appropriate, the ones issuing the licenses639 or fishing authorization to all recreational vessels willing to engage in recreational fisheries, either in internal or external waters. The latter, provided that the fishing activity is not directed at protected endangered aquatic species640.

Table 25: COMPETENT AUTHORITIES TO ISSUE RECREATIONAL FISHING LICENSES

AndalucíaProvincial Delegation of the corresponding Department for Agriculture, Fisheries and Rural Development.

CanariasVice-Department for Fisheries and Water of Gran Canaria, which is part of the Department for Agriculture, Livestock, Fisheries and Water.

CantabriaGeneral Directorate for Fisheries and Food, which is part of the Department for Rural Environment, Fisheries and Food.

CataluñaGeneral Directorate for Fisheries and Maritime Affairs, part of the Department for Agriculture, Livestock, Fisheries, Food and Environment.

633 BOE No. 53, of 03.03.1999.634 Art. 4, RD 347/2011.635 BOE No. 84, of 04.08.1995. This RD was amended by RD 1615/2005, of 30 December (BOE No. 16, of 01.19.2006).636 Art. 22, RD 347/2011.637 Art. 149.1.19, Spanish Constitution. 638 Additional Provision No. 5, RD 347/2011.639 Art. 3.a) of RD 2127/2004 of 29 October, establishing the safety requirements of pleasure crafts, jetskis and its components, and the regulation of its engines exhaust emissions. (BOE No. 262, of 10.30.2004) defines “recreational craft” as “any boat of any type, re-gardless of the means of propulsion, hull length from 2.5 to 24 m, measured according to the criteria laid down in harmonized standards intended for sports purposes or of leisure. Furthermore, such vessels are subject to the provisions set in this RD when used for profit or for training of recreational boating.”.640 Species subject to differential protection measures in maritime recreational fisheries are found in Annex II of RD 347/2011: blue-fin tuna, albacore tuna, bigeye tuna, swordfish, marlins, needles, sailfish and hake.


641

Continuation

CeutaDepartment for Aquaculture, Shellfish and Fisheries, part of the Department for Environment and Sustainability641.

Comunidad Valenciana

Corresponding Provincial Delegation of the Department for Agriculture, Environ-ment, Climate Change and Rural Development.

Galicia

General Directorate for Planning and Management of Marine Resources corre-sponding to: � Provincial Department of AA Coruña. � Regional Delegation of Ferrol. � Regional Delegation of Pontevedra. � Provincial Department of Pontevedra. � Regional Delegation of Ribeira. � Provincial Department of Vigo. � Regional Delegation Carril-Villagarcía of Arouse. � Provincial Department of Lugo.

Islas BalearesGeneral Directorate for Fisheries and Marine Affairs, part of the Department for Environment, Agriculture and Fisheries.

MelillaGeneral Directorate for Technical Management of the Environment, part of the Department for Environment.

País VascoDirectorate for Fisheries and Aquaculture, part of the Department for Economic Development and Competitiveness.

Principado de Asturias

General Directorate for Maritime Fisheries, part of the Department for Rural Devel-opment and Natural Resources.

Región de Murcia

General Directorate for Agriculture, Livestock, Fisheries and Aquaculture, part of the Department for Water, Agriculture and Environment.


In the case of species of differential protection, the vessel owner must, in addition to the license, have an authorization issued by the DG for Fisheries Management642, which shall be kept on board while conducting the activity, and will be valid for three years643.

In addition, in order to control the fishing effort of these vessels, the holder of the authorization must

641 Presidential Decree 5712/2015, of 22 June establishing the structure of the Administration of the Autonomous City of Ceuta (BOCCE No. 11 of 06.23.2015).642 Art. 10.1, RD 347/20111, While in RD 347/11, it is established that the competent authority shall be the DG for Fisheries and Aqua-culture, with the restructuring of the nowadays known as MAGRAMA, this competition was transferred to the DG Fisheries Management. See section C Section 2.1.1.2 of this document.643 Art. 10.2, Ibid.


complete and submit to the SGCI a signed catch and release declaration within the first five days of each month, even if they have not obtained any obtained any catches644. In addition to the hold-er’s data and the vessel identification data, such declaration must include the fishing area in which the catches were made and a list of quantities caught, specifying the number of catches, weight, species and the day in which they were captured645. Among these species of differential protection, there exist two which are subject to more restrictive regulations. While for the Blue-fin tuna will be regulated according to its recovery plan, in compliance with Art. 10.4 of RD 347/2011646, for the swordfish, the MAGRAM have recognized the possibility of limiting the volume of catches for a giv-en species in line with Article 9 of Law 3/2001647.

Under Order of 26 February 1999, there was already an obligation to have an authorization and declare catches by means of a landing declaration648 for all differential protected species. There-fore, Spanish law is in this sense stricter than that established by the Fisheries Control Regulation which does not consider it an obligation, but as a discretionary power of the Council649.

� Creation of a register within the DG for Fisheries Management, which will contain all the vessels subscribed in the AC registers of recreational boats, and which have a valid license for the exercise of the recreational fishing activity650.

� Prohibition for carrying out transhipments651.

� Prohibitions on fishing methods, gear, or instruments and general prohibitions depending on the type of recreational fishing.

644 Art. 10.3, Ibid.645 Annex IV, Ibid. 646 Art. 10.4, Ibid states that: “species of differential protection which are subject to a recovery plan, will be regulated by the specific regulations in accordance with the recovery plans that may be adopted”.647 According to Article 9 of Law 3/2001 “The Ministry for Agriculture, Fisheries and Food may adopt the necessary measures for the limitation of volume of catches, with respect to certain species or group of species, by fishing grounds or zones, periods of time, fishing modalities, by vessel or groups of vessels, or other criteria established by regulations”.648 RD 347/2011 amended the obligation to submit a landing declaration and substituted it for the obligation to submit a catches and release declaration.649 Art. 22, RD 347/2011. Article 55.4 of the Fisheries Control Regulation states “The Scientific, Technical and Economic Committee for Fisheries (STECF) shall evaluate the biological impact of recreational fisheries as referred to in paragraph 3. Where a recreational fishery is found to have a significant impact, the Council may decide, in accordance with the procedure referred to in Article 37 of the Treaty, to submit recreational fisheries as referred to in paragraph 3 to specific management measures such as fishing authorisations and catch declarations”.650 Art. 22, RD 347/2011. 651 Art. 5.2, Ibid.


Table 26: FISHING GEARS AND PROHIBITIONS BY TYPE OF RECREATIONAL FISHERIES652 653 654 655 656

Recreational fisheries from land652

No prohibition or specification.

Recreational fisheries from a vessel653

In general, fishing is allowed with: hand line, rod, trolling, jigging and fish-ing line as well as with accessories essential to gear up the pieces on board654.

Prohibitions: - Use or keeping on board fishing gears or instruments different than

those permitted. - Interfere with commercial fishing. - Use more than two electric655 reels per vessel. - Use any artificial means of attraction or concentration of the tar-

get species, especially the use of lights, except for small pelagic brumes.

- The use or possession of any kind of poisonous, narcotic, explosive or pollutant.

Under-water recreational fisheries656

� Fishing is only permitted with a manual harpoon or that which is driven by mechanical means, and can have one or various points.

� The obligation on divers to mark their position with a clearly visible buoy sig which should not move away from more than 0.013 nautical miles or a 25 meters radius.

� Prohibitions: - Practicing recreational under-water fisheries is prohibited when

carrying on board the vessel, simultaneously, underwater catching gear instruments and underwater breathing equipment.

- Interfering with commercial fishing. - The use of any means of attraction or artificial concentration of the

target species and, explicitly, the use of lights for that purpose, with the exception of the small pelagic brumes.

- The use or possession of any kind of poisonous, narcotic, explosive or pollutant.

- Having loaded the gun out of the water. - The use of catch instruments with explosive electrical or electronic

tip, as well as light sources, except for flashlights. - The use or possession of hydrofoils artifacts and similar vehicles. - The practice of this activity at night, from sunset to sunrise.


In addition, Law 3/2001 regulates the possibility for the MAGRAMA to establish temporary closure areas for recreational fishing657, ex. Blue-fin tuna658. The MAGRAMA can also limit the volume of dai-652 Chap. III, Ibid.653 Chapter IV, Ibid.654 Article 11.2, Ibid states that “the MAGRAMA may authorize other gears and regulate their technical characteristics for each fishing zone regulated in article 2”.655 An electric reel is a reel or drum where a fishing line entangles with a motor powered by batteries, equipped with a device plug and reverse gear. Art 3.c). Law 3/2001 defines “Underwater recreational fishing” as: “that practiced by diving free without using any instru-ment allowing breathing in immersion or a propulsion mechanical measure”.656 Art 3.c). Law 3/2001defines “Underwater recreational fishing” as: “that practiced by diving free without using any instrument allowing breathing in immersion or a propulsion mechanical measure”. This fishing modality is regulated in Chapter V of RD 347/2011.657 Art. 36.2.a), Ibid.658 Art. 9 of Order AAA/642/2013 of 18 April regulating the Blue-fin tuna fishery in the Eastern Atlantic and Mediterranean Sea, estab-


ly catches659 obtained by each fishing zone660. At the time of elaborating this document, there are no approved regulations limiting these fishing volumes. Thus, according to Single Transitory Provision of RD 347/2011661, they shall remain subject to provisions contained in Art. 3 of Order of 26 February 1999, establishing rules regulating recreational maritime fisheries:

a) For species that are not under differential protection, fishing of no more than 5 kilograms of the species will be allowed per license and day, allowing for one of the captured piec-es to not be weighed.

b) For whole albacore, bigeye, and hake, no more than 5 pieces per license and day are permitted, with a maximum of 20 total parts per vessel and day. It must be taken into account that this wording makes sense in context of the old regulation of recreational fishing licenses, where a vessel could have more than one license. However, currently this regulation is somehow confusing, since from the entry into force of RD 347/2011, the number of licenses per vessel has been limited to one. Thus, the maximum of 20 parts per vessel/day would not be applicable.

c) For marlins, needlefish, and sailfish, there is a limit of one piece per license per day, with a maximum of four pieces per vessel per day. This regulation is somewhat confusing because of the reasons mentioned above.

d) This Order also set a certain volume for the fishing of Blue-fin tuna and swordfish. How-ever, under the current regulation, the catch of these species is not permitted662.

2.5.1. markeTing of caTches from recreaTional fisheries

Although Article 55.2 of the Fisheries Control Regulation explicitly prohibits the marketing of catch-es from recreational fisheries, it should be noted that Spanish legislation expressly authorizes the profitable exploitation of recreational fisheries by vessels as well as the holding of contests. For the latter, it is regulated a prohibition to sell or give up catches obtained for commercial purposes663.

lishes the prohibition to capture from 15 June to 15 October for sport and recreational fisheries. During this period, the capture of this species is absolutely forbidden. In case of incidental caught, it shall be always release back into the sea. Furthermore, Resolution issued by the SGF on 9 March 2015, on the establishment of the applicable provisions of the Blue-fin tuna recovery plan of the Oriental Atlantic Ocean and Mediterranean Sea states in its Article 10, paragraph 9 that: “any closure of the sport fisheries of the Blue-fin tuna taking place before the official date of its finalization, either for having reached the quota consumption, or for being close to its consumption, shall be officially communicated by Resolution of the General Directorate for Fisheries Management, and shall be published in the MAGRAMA website”.659 Art. 5, RD 347/2011.660 Article 2 of RD 347/2011 divides Spain in four fishing areas representing different management units: Cantabrico and Northwest, Gulf of Cadiz, Mediterranean and Canarias: “a) The Cantabrico and Northwest entails waters extending from the border of France, in the mouth of the Bidasoa River (1º47’ W), to the border of Portugal, in the mouth of Miño River (41º 52’). b) The Gulf of Cadiz zone extends between the medidian of Punta Marroquí, in the surroundings of Tarifa (5º 35’ W) and the border of Portugal in the mouth of Guadiana River (7º 24’ W). c) The Mediterranean zone entails waters located in the Balearic Islands, the Alborán Island, the cities of Ceuta and Melilla and the fisheries protected area of the Mediterranean defined in RD 1315/1997, of 1 August, on the establishment of a fisheries protected area in the Mediterranean Sea until Cerbere Cape (42º 26’ N). d) The Canaria’s area entails the external waters of the Canarian Archipielago.”.661 The Single Transitory Provision of RD 347/2011 states “As long as implementing legislation is not approved, as required in Article 5 of this RD on the maximum limits of catches for every fishing areas and other technical considerations, the provisions on the maximum limits of catches and minimum sizes of Order of 26 February of 1999, establishing the rules which regulate recreational fishing will continue in force”.662 See section 2.5.3 of this document.663 Art.19, RD 347/2011.


In the first case, certain vessels are allowed to organize excursions for third parties that want to engage in recreational fisheries. It requires the owners of these vessels, in addition to having the required license or authorization, to communicate the DG for Fisheries Management about the exercise of that extractive commercial activity each year, as well as a month before starting664. In addition, if they are authorized to catch species of differential protection, the owners of each vessel must send a monthly report to the same DG concerning the catch and release of these species665.

In the case of willing to organize any type of fishing contest in external waters, the person or organ-izer is required to have an authorization666:

� If the contests concerns species different than those under differential protection, the competent AC for granting the operating license will be responsible for issuing this authorization. However, within a 15 days period from the granting of the authorization, the AC in question shall communicate the holding of the contest and the catches ceilings that may be established by the DG for Fisheries Management.

� If the contest affects species of differential protection, the authorization will be issued by the DG for Fisheries Management. Such authorizations shall be requested by the organ-izers of the contest one month before it starts. The organizers will also be responsible for the practicing of both catch and release of the individual of species that are caught alive and subject to recovery plans, as well as of any of the juveniles of other species. Within a maximum period of 15 days since the end of the contest, they shall also send to the DG for Fisheries Management the declaration of catch and release referred to each vessel and fishing zone667.

2.5.2. specific conTrol acTions regarding recreaTional fisheries

In order to ensure that all regulatory measures for recreational fisheries are being carried out proper-ly and are compatible with the CFP objectives and standards, Law 3/2001 requires the undertaking of specific actions on surveillance and control668.

Within these specific control actions, the Fisheries Control Regulation regulates the obligation to control catches of stocks subject to recovery plans by Spanish vessels or third country vessels which are engaged in recreational fisheries practiced from Spanish waters, on the basis of a sam-pling plan. Fishing from shore shall be excluded from that obligation669.

Sampling plans must collect such data biannually670, and the MS will be able to use the data col-lected under the multiannual community program provided for in Council Regulation 199/2008 of 25 February 2008 concerning the establishment of a Community framework for the collection, manage-ment, and use of data in the fisheries sector and support for scientific advice regarding the CFP671.664 The communication will be in compliance with Annex VIII, Ibid.665 Art. 20, Ibid.666 Art. 17, Ibid.667 Art. 18, Ibid.668 Art. 36.4, Law 3/2001.669 Art. 55.3, Fisheries Control Regulation.670 Art. 64.1, Implementing Regulation.671 OJ L 60, of 05.03.2008, p.1. This EU programme has the aim to collect and manage biological, technical, environmental and so-cio-economic data concerning, among others, recreational fisheries carried out within the EU waters, including the recreational fisheries for eels and salmon in internal waters in line with the CFP objectives. In accordance with this programme, MS shall collect this type of data within the framework of their national multi-annual programmes (national programmes) which shall be sent to the EC. The informa-tion obtained from this programmes are the basic necessary data for providing a scientific advisory in the sustainable management of


Sampling plans shall include a sampling design for estimating catches, the fishing gear used and the relevant geographical area where these catches were made672.

MS must submit their sampling plans to the EC no later than 9 April 2012 for those species subject to recovery plans that were in force on 9 April 2011. This is the date on which the Implementing Regulation entered into force. For recovery plans that were not in force on that date, the MS must submit its sampling plan no later than 12 months after its approval673. Every 5 years from the notifi-cation, the STECF will evaluate the sampling plans to ensure compliance with EU regulations. It will control the methods used, the sampling design, and make recommendations, where appropriate674.

Regarding the Spanish sampling plan for recreational fisheries, there have been criticisms from some sectors within professional fishing. They argue that, apart from not having knowledge about the plan’s content, a control system based solely on a sampling plan is insufficient to control recre-ational activities and should be subject to the same control as applying for professional fishing675.

We have been unable to identify the existence of a Spanish sampling plan regarding recreational fisheries of species subject to recovery plans. In Spain, the control of catches for species of differ-ential protection within the framework of recreational fisheries is carried out through the requirement of authorizations and the completion of catch declarations. As previously mentioned, this is reflect-ed in the Fisheries Control Regulation as a discretionary power of the Council.

Although the Fisheries Control Regulation requires an obligation to have a sampling plan, we con-sider that the control measures chosen by Spain guarantee a more precise control of catches of species of differential protection.

2.5.3. fisheries of blue-fin Tuna and swordfish

Recreational or sport fisheries, as well as holding of contests, sporting events or competitions targeting the Bluefin tuna species are prohibited676. Order AAA/642/2013 of 18 April on the regu-lation of Bluefin tuna fisheries in the Eastern Atlantic and Mediterranean Sea exclusively foresees the catch and release of live individuals, which has to be reflected in the declaration of catch and release established in Annex IV of RD 347/2011677.

While it is obligatory to adopt all necessary measures to return back to the sea, still alive, the Blue-fin tuna, in the event that death is unavoidable, the captains of the vessels or the holders of the recreational fishing licenses should stop fishing and undertake the required catch declaration678.

fisheries resources. In 2011, Spain approved the Data Collection and Management Programme within the framework of the 2011-2013 Community programme, adopted through Commission Decision of 18 December 2009. This programme has been an extended until 2016 with the aim to adopt during this period a new framework which allows to achieve the goals set in the 2020 European Strategy, and address the requirements of the new CFP.672 Art. 64.3, Implementing Regulation.673 Article 65.1 of the Implementing Regulation states: “Member States shall notify their sampling plans to the Commission 12 months after the entry into force of a recovery plan. For recovery plans which are already in force at the time of entry into force of this Regulation, the sampling plan shall be notified within 12 months after entry into force of this Regulation. Amendments of the sampling plan shall be notified before they become effective.”.674 Art. 65.2, Ibid.675 National Federation of Fishermen Guilds, Note 49/12, of 05.08.2012.676 Art. 10.2, Resolution of the Secretary General of Fisheries issued on 9 of March 2015.677 Art. 18, O AAA/642/2013.678 Art. 18.2, Ibid.


Furthermore, before the arrival to port, they are required to submit a catch communication to the SGCI via email679.

In cases where these catches have been made, it will be allowed only one individual per fishing trip, with a maximum of two authorized individuals in all the authorized season. When this limit is reached, the corresponding authorization will be suspended for Bluefin tuna during the season in question680.

Catches made shall always be landed, although they will be exempted from the landing require-ments681 referred to in Article 7 of O AAA/642/2013682.679 Art. 10.4, Resolution of the GSF issued on 9 March 2015.680 Art. 10.7, Ibid.681 Art. 10.8, Ibid.682 Article 7 of O AAA/642/2013 states: “1. It is prohibited to land and to tranship any quantity of Blue-fin tuna caught in the Eastern

Illustration 10:

Catch communication concerning blue-fin tuna in the modality of recreational fisheriesSource: Resolution of the GSF of 9 March 2015, on the establishment of provisions concerning the implementation of the bluefin tuna recovery plan in the Oriental Atlantic Ocean and the Mediterranean


In the case of swordfish, their catch by any vessel not included in the Unified Surface Longline Census is also forbidden, including incidental or unintentional catch. The latter applies in accor-dance with the provisions set in Order ARM/1647/2009 of 15 June, regulating fishing of highly migratory species.

Recreational Fisheries

Taking into account the undertaken analysis, it can be stated that in terms of control of recreational fisheries Spanish law meets the Fisheries Control Regulation requirements, and in some cases can even be considered much stricter:

� For the fishing of species under differential protection, Spanish legislation requires to have an authorization and catch declaration, while the Fisheries Control Regu-lation considers these specific measures as a discretionary power of the Council and only when the STECF proves that recreational fisheries of species subject to recovery plans have a significant biological impact.

In this context, although Spain has not adopted the sampling plan referred to in Article 55.3 of the Fisheries Control Regulation, the control of catches of species under dif-ferential protection within the framework of recreational fisheries is conducted through specific measures such as fishing authorizations and catch declarations. We therefore consider that the control measures adopted by Spain ensure more reliable data on catches of these species than that data which could be obtained from a sampling plan.

2.6. Control of marketing

A comprehensive control regime should apply not only to the production chain but also to the mar-keting chain. Title V of the Fisheries Control Regulation establishes a series of procedures that MS and participating agents must meet at the different stages of the commercialization of fishery and aquaculture products. The Implementing Regulation establishes in more detail all rules concerning the traceability procedures, weighing, sales notes, declaration of catches, and transportation doc-uments.

Regulation (EU) No 1379/2013 of the European Parliament and of the Council of 11 December 2013 on the common organization of the markets in fishery and aquaculture products (COM Regulation), defines ‘making available on the market’ as “any supply of a fishery or aquaculture product for dis-tribution, consumption or use on the Union market in the course of a commercial activity, whether in return for payment or free of charge”683. Law 3/2001defines ‘marketing of fishery shellfish and aqua-culture products’ as “each of the operations that take place from the first sale to final consumption,

Atlantic and Mediterranean outside authorized ports, and in days and times not authorized . Any landing or transhipment undertaken out of the above ports, or in days or hours unauthorized, or by a vessel with no authorization will be considered as illegal landing. 2. It is also obligatory to subject any quantity of Blue-fin tuna landed or transhipped in authorized ports to documentary checks and weighing. This control will be conducted by the competent authorities designated for that purpose in each port and within o the times indicated by the General Secretariat for Fisheries. 3. The relation of designated ports will be established by resolution of the General Secretariat for Fisheries.”.683 Art. 5 e), COM Regulation.


and comprises, among others, the possession, transportation, storage, display and sale, including sale taking place at restaurant establishments”684.

With the entry into force of RD 418/2015 of 29 May regulating the first sale of fishery products (RD 418/2015 on first sale)685, the terms and conditions for the adequate control of marketing were established in line with EU law. Thus, this RD simplified the previous existing legal framework reg-ulating the sector, and amended some basic State regulations applying to this marketing stage686.

Marketing is one of the aspects taking part of the management of the fisheries sector. In accordance with the Spanish Constitution, the development and implementation of the basic State legislation in this context corresponds to the AA.CC. Therefore, it can be stated that control, considered as an implementation task, corresponds to the AA.CC from the first sale of fishery products.

Table 27: AA.CC LEGISLATION687 688 689 690

Autonomous Communities

Legislation Provisions

Andalucía

Law 2/2011 of 25 March, regarding the Agricultural Food and Fisheries Quality of Andalucía (Fisheries Quality Law of Andalucía)687.

Law 1/2002, of 4 April, regarding the management, promotion, and control of maritime fishery, shellfish and aquacul-ture of Andalucía (Andalucía Fisheries Law)688.

Traceability

Article 6.1, 2 and 3, Fisheries Fish-eries Quality Law of Andalucía.

First Sale

Article 65, Andalucía Fisheries Law.

Producers organization

Chapter IV, Fisheries Quality Law of Andalucía.

CanariasLaw 17/2003, of 10 April on Fisheries in Canarias689 (Fisheries Law of Canarias).


Article 53, 54 and 55.

Cataluña

Law 2/2010, of 18 February of Fisheries and Maritime Action of Cataluña, (Cata-luña Fisheries Law)690.

Traceability

Article 93.

First Sale

Article 90.


Article 65.

684 Art. 76, Law 3/2001. 685 BOE No. 149, of 06.23.2015.686 Among the legislation amended with the entry into force of RD 418/2015 on first sale are the following: RD 1822/2009 of 27 Novem-ber, on the regulation of the first sale of fisheries products (BOE No. 306, of 21.12.2009); RD 121/2004 of 23 January, on the identification of fishery, aquaculture and shelfish products alive, fresh, frozen or boiled (BOE No. 31, of 05.02.2004) and RD 1380/2002 of 20 Decem-ber on the identification of fishery, aquaculture and shelfish products frozen and deep-frozen (BOE No. 3, of 03.01.2003).687 BOJA No. 70, of 8.04.2011.688 BOJA No. 45, of 18.04.2002.689 BOIC No. 77, of 23.04.2003.690 DOGC No. 5580, of 4.03.2010.


691 692 693 694Continuation

Valencian Community

Law 9/1998, of 15 December on Maritime Fisheries in the Valencian Community (Fisheries Maritime law of the Valencian Community)691.

Traceability

Article 63.

First Sale

Article 60.

Galicia

Law 11/2008, of 3 December of Fisher-ies of Galicia (Galician Fisheries Law)692.

Traceability

Article 100.

First Sale

Article 99.


Article 90.

Balearic Islands

Law 6/2013, of 7 November on Maritime Fisheries, Shellfish and Aquaculture in the Balearic Islands (Balearic Islands Fisheries Law)693.

Traceability

Article 57.

First Sale

Article 54.


Article 42 and 43.

Murcia Region

Law 2/2007 of March 12, Marine Fish-eries and Aquaculture of the Región de Murcia (Región de Murcia Fisheries Act)694.

Traceability

Article 66.

First Sale

Article 58.

Catches Declaration

Article 59.2 and 3.


Article 65.


2.6.1. common principles and sTandards

Chapter 1 of Title V of the Fisheries Control Regulation establishes as a general rule in Articles 56 and 57 the obligation for MS to ensure throughout the marketing of fisheries and aquaculture products compliance with the control standards in accordance with European law695. To comply with the minimum standards on marketing, operators responsible for purchasing, selling, stocking or transporting lots of fishery and aquaculture products, it is are required that the vessel able to prove that the products comply with the obligations required in all marketing stages696. To this end,

691 DOCV No. 3395, of 17.12.1998.692 DOG No. 243 ,of 16.12.2008.693 BOIB No. 156, of 13.11.2013.694 BORM No. 83, of 12.04.2007.695 Art. 56, RCFP was replaced by the following amendment, in accordance with Article 7.8.a) of Regulation (EU) 2015/812: “Each Member State shall be responsible for controlling on its territory the application of the rules of the common fisheries policy at all stages of the marketing of fisheries and aquaculture products, from the first sale to the retail sale, including transport. Member States shall in particular ensure that the use of fishery products below the applicable minimum conservation reference size that are subject to the landing obligation set out in Article 15 of Regulation (EU) No 1380/2013 is restricted to purposes other than direct human consumption.”.696 Art. 57.3, Fisheries Control Regulation.


the Implementing Regulation provides that all operator’s subject to inspection shall facilitate and provide relevant information concerning their fishing activities upon request by the agents697.

Law 3/2001 is the legal instrument establishing the basic rules both for the management of the fisheries sector, as well as for the management of the marketing activity of fishery and aquaculture products, and the regulation of their external trade698. Further development of the regulation con-cerning both sectors corresponds to the AA.CC.

With regard to the legislation adopted by the AA.CC in this area, some simply envisage the pro-visions established in the State and EU laws 699. Others, as it can be seen in the following table, provide a more comprehensive development of the objectives and regulatory measures to ensure an adequate control of marketing.

Table 28: OBJECTIVES DURING THE MARKETING PROCESS

Law 2/2010, of 18 February of Fisheries and Maritime Action of Cataluña, (Cataluña Fisheries Law)

Law 11/2008, of 3 December of Fisheries of Galicia

(Galician Fisheries Law)

Article 89. Regulation.

Without prejudice to the fact that interested parties shall obtain the required authorizations or concessions from the competent authorities in accordance with regulations in force, the department responsible for fisheries and maritime action will be involved in the marketing of fishery, aquaculture and shellfish products, through the following regulatory measures:

a) Authorizing the activity of first sale at auction centres (lonjas) or other authorized establishments which meet the requirements estab-lished by law.

b) Controlling the statement data and other documents required by the regulations in force in relation to first sale and transport.

c) Enforcing existing regulations in relation to traceability and labe-ling.

d) Establishing by regulation the size and weight of the marketing of fishery products within the framework and under the development of European provisions, and ensure compliance with the applicable regulations in force.

e) Regulating the designations of origin or other signs or marks of quality concerning fishery products.

Article 119. Objectives.

The purpose of the inspection, control, maritime rescue and fight against pollution system is to ensure compliance with the currently in force legislation concerning fisheries, shellfish and aquaculture, to monitor and carry out inspections over the activities included in the scope of this law, to envisage and perform all necessary actions for the protection of marine resources in all its stages, from capture or production to final marketing stage, to support the Galician fishing fleet, provide services on search, rescue and maritime rescue operations, and envisage and fight against the pollution of the marine environ-ment.


Another principle governing the control of marketing is the requirement to prove the relevant geo-graphical zones from which fishery products come from related to species for which European legislation has established a minimum size700. This obligation will affect those operators responsible

697 Art. 113.2.a), Implementing Regulation.698 Art. 1, b and c, Law 3/2001.699 This is the case of the Valencian Community Fisheries Law, the Andalucian Fisheries Law , the Fisheries Law of Canary Islands and Law 2/1993, of 29 October, of Maritime Fisheries in Internal Waters and the Utilization of Marine Resources in the Principado de Asturias (BOPA No. 264, of 15.11.1993).700 The CFPR defines in Art. 4.1.17), “minimum conservation reference size” as the “size of a living marine aquatic species taking into account maturity, as established by Union law, below which restrictions or incentives apply that aim to avoid capture through fishing activity; such size replaces, where relevant, the minimum landing size”. The EU law contains several regulations in the corresponding


for purchasing, selling, stocking or transporting such products701, with the aim to ensure the sus-tainability of the sector.

In order to allow operators to comply with this obligation, the Implementing Regulation refers to the type of specific information to be included in order to prove the relevant geographical area702:

a) The relevant geographical area, as defined in Article 4.30 of the Fisheries Control Regu-lation703 is, when concerning the catches of stocks or stocks or group of stocks subject to quota and/or minimum sizes under EU law, or

b) The catching zone, in accordance with Article 5 of the Commission Regulation (EC) No 2065/2001704, for the rest of stocks or groups of stocks. The COM Regulation recognizes in its Article 35.1 c) recognizes this requirement as mandatory information for consum-ers. Likewise, Article 38.1 a) states that the indication of the catching or production zone shall be determined in the following manner, “in the case of fishery products caught at sea, the name in writing of the sub-area or division listed in the FAO fishing areas, as well as the name of such zone expressed in terms understandable to the consumer, or a map or pictogram showing that zone, or, by way of derogation from this requirement, for fishery products caught in waters other than the Northeast Atlantic (FAO Fishing Area 27) and the Mediterranean and Black Sea (FAO Fishing Area 37), the indication of the name of the FAO fishing area”.

In addition, as discussed below, the relevant geographical area is one of the requirements that is required and must be included in the content of sales notes, the take-over declaration and the transport document. This is some of the proceedings required for the marketing of fishery products. Therefore, it can be understood that operators will be able to comply with the obligation set under Article 56.2 of the Fisheries Control Regulation by submitting these documents.

In relation to the traceability requirement, which will be discussed in the next section, it must be tak-en into account that the Fisheries Control Regulation requires all MS to ensure that all fisheries and

indications on the minimum size that must apply to some maritime species. For example, Regulation (EC) No. 850/98 of 30 March 1998 for the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms (OJ L 125, 27.04.1998, p. 1) provides in its Annex XII for the minimum dimensions of certain species. Similarly, Regulation (EC) No. 2187/2005, EEC of 21 December 2005 on the conservation, through technical measures of fisheries resources in waters DELMAR Baltic, the Belts and the Sound, amending the Regulation (EC) No 1434/98 and Regulation (EC) No 88/98 is repealed, (OJ L 349, 31.12.2005, p. 1), contains in its Annex IV specify a section where the minimum landing sizes. For its part, Annex III of Regulation (EC) No. 1967/2006 of 21 December 2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea, this type of requirement also signals for conservation purposes. These three Regulations were amended several times, most recently by Regulation (EU) 2015/812. Regarding the state and regional level, and the duty to meet regulations set minimum sizes are recognized, but not expressly reflects the duty to prove the relevant geographic zone (Art. 1 RD 560/1995 of 7 April, the minimum sizes of certain species is established is-fishing, art. 6.1 c), RD 418/2015 on first sale, art. 89 Fisheries Act of Catalonia and art. 6.2 g), Fisheries Act of the Balearic Islands).701 Art. 56.2, Fisheries Control Regulation.702 Art. 67.13, Implementing Regulation.703 See footnote No. 208.704 Commission Regulation (EC) Nº2065/2001 of 22 October 2001, laying down detailed rules for the application of Council Regulation (EC) No. 104/2000 as regards informing consumer about fishery and aquaculture products (OJ L 278, of 21.10.2001, p.6) was amended on 12 December 2014 by Commission Implementing Regulation (EU) No. 1420/2013 of 17 December 2013 (OJ L 353, of 28.12.2013, p.48) after the adoption of the COM Regulation.


aquaculture products from catching or harvesting are put into lots705 prior to first sales706. The 2014 National Programme for the Control of Traceability of Fisheries and Aquaculture products within the scope of the Fisheries Control Regulation had among its specific objectives to control that all fisher-ies and aquaculture products from catching or harvesting were put into lots prior to their first sale707.

Catches originating from the same relevant geographical area but coming from different vessels which do not exceed 30 kilograms per species, may be placed in lots by the producers organi-zation708 to which the operator of the fishing vessel belongs, or by an authorized buyer prior to its first sale709. Under this exception, in December 2011 an MEP raised a question to the EC claiming that discharges of those catches assumed high costs and proposed an interpretation of the more flexible standard, in order to authorize the mixture of fish in mixed lots of up to 30 kilograms per species, quality, and screening, instead of only 30 kilograms per species710. Likewise, in relation to this article of the Fisheries Control Regulation, Regulation (EU) 2015/812 added the following paragraph, “5. Quantities of fishery products of several species, consisting of individuals below the applicable minimum conservation reference size coming from the same relevant geographical area and the same fishing vessel, or group of fishing vessels, may be put into lots prior to the first sale.”.

705 Art. 4.20, Fisheries Control Regulation defines ‘lot’ as: “a quantity of fisheries and aquaculture products of a given species of the same presentation and coming from the same relevant geographical area and the same fishing vessel, or group of fishing vessels, or the same aquaculture production unit”.706 Art. 56.3, Ibid.707 National Programme on the Control of Traceability of Fishery and Aquaculture products within the scope of the Fisheries Control Regulation (EC) 1224/2009, p.4.708 A producer organization is defined as “any organization or association formed by initiative of the producers with the objective of adopting the necessary measures to guarantee the rational exercise of fishing and the improvement of the sale conditions of their pro-duction”. Available at: http://www.magrama.gob.es/ministerio/pags/Biblioteca/fondo/pdf/29259_7.pdf.709 A producers organization is defined as “any organization or association established by iniciative of the producers with the aim to adopt of necessary measures to guarantee the rational exercise of fisheries and the improvement of the selling conditions of production”. Available at: http://www.magrama.gob.es/ministerio/pags/Biblioteca/fondo/pdf/29259_7.pdf.710 The question was raised on 15 December 2011, by the MEP Ole Christensen (from the Progressive Alliance of Socialists and Democrats) and was answered by the Commissioner of Maritime Affairs and Fisheries, Mrs. Damanaki on 11 July 2012. Mrs. Damanaki rejected said proposal arguing that a restrictive interpretation of the law is the best way to guarantee traceability, as required by Article 58 (1) of the Fisheries Control Regulation.

Illustration 11:

Herrera species put into lots prior to first sale in an auction CentreSource: Sanlúcar Fishermen Guild.

http://www.magrama.gob.es/ministerio/pags/Biblioteca/fondo/pdf/29259_7.pdf


2.6.2. TraceabiliTy

2.6.2.1. General principles

The guarantee recognized in Article 58.1 of the Fisheries Control Regulation, according to which all lots of fisheries and aquaculture products shall be traceable711 at all stages of production, pro-cessing and distribution, from catching or harvesting to retail stage712 is ensured under a series of conditions specified at the Fisheries Control Regulation. In the Spanish case, RD 418/2015 on first sale reflects the obligation contained in that Regulation by which all lots of fisheries and aquaculture products must be traceable. The regional legislation is also aimed at recognizing and ensuring the traceability requirement by promoting preventive control measures713. The Andalucian Fisheries Law, deserves special mention, whose Article 6 requires operators to implement a management system for marketing714 quality to, among others, define the “traceability of lots or consignments of food products and materials and elements for food production and marketing”715. In relation to the traceability requirement, in January of 2015 an MEP raised a question to the EC on the status of implementation of this requirement by MS and the existing initiatives to ensure compliance with it716.

The requirement on an adequate labeling for all fishery and aquaculture products which are placed on the market or likely to be placed on the European market is an essential element to ensure the traceability of each lot717. Indeed, one of the requirements necessary to ensure traceability is the labeling of products, being therefore necessary to make a distinction between the concepts of “traceability” and “labeling”. While the former is an essential tool to ensure the control and sus-tainability of fisheries resources, the second is a component which allows the identification of the product in question. Law 3/2001 foresees the following principles for the correct identification of the products:

711 Article 3.15 of Regulation (EC) 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law (OJ L 31, of 01.02.2002, p.1) defines “traceability” as “the ability to trace and follow a food, feed, food-producing animal or substance intended to be, or expected to be incorporated into a food or feed, through all stages of production, processing and distribution”. 712 Article 4.23 of the Fisheries Control Regulation defines ‘retail’ as the “handling and/or processing of products of living aquatic re-sources and their storage at the point of sale or delivery to the final consumer, and includes distribution.”.713 Art. 100, Galician Fisheries Law, Art. 57, Fisheries Law of the Balearic Islands, and Art. 93.1 Fisheries Act of the Fisheries Law of Cataluña. 714 Vilar Hernández, J. Stahnke, W. B. Nuñez Torres, Systems of quality management in the food industry, Agrolim vol.9, No. 18, 2004, pp. 87-93. Available at: http://www.scielo.org.ve/scielo.php?pid=S1316-03542004000100007&script=sci_arttext.715 For further information, please see: http://grupodaboconsulting.com/la-ley-de-la-calidad-agroalimentaria-y-pesquera-de-andalucia/.716 The question was raised on 6 January 2015 by the Euro Deputy Ole Christensen (part of the Progressive Alliance of Socialists and Democrats), and was answered by the Commissioner for the Environment, Maritime Affairs and Fisheries, Mr. Vella on April 20, 2015. Mr. Vella said that the EC was waiting to collect the various reports by Member States that had to be delivered in order to verify whether the provisions of RCFP are met in each territory. In addition, Mr. Vella said that the EC actively supports Member States for the implementa-tion, application and control of an effective system of traceability, having been funded by the EU to twenty projects for a total amount of thirty million euros, without specifying which consisted on funded initiatives to ensure compliance with this requirement.717 Art. 58.2, Fisheries Control Regulation.

http://www.scielo.org.ve/scielo.php?pid=S1316-03542004000100007&script=sci_arttext

http://grupodaboconsulting.com/la-ley-de-la-calidad-agroalimentaria-y-pesquera-de-andalucia/


Table 29: GENERAL PRINCIPLES FOR THE IDENTIFICATION OF FISHERY PRODUCTS

Article 78 Law 3/2001

The identification of fishery products through labeling, presentation and advertising is subject to the following principles:

a) They shall incorporate or allow in a certain and objective manner effective, accurate and suffi-cient information concerning its origin and its essential characteristics.b) Do not leave any doubt about the nature of the product, being mandatory to reflect in any case the species.c) Shall not mislead or deceive through inscriptions, signs, logos, drawings or forms of presenta-tion that could lead to confusion with other products.d) Shall not omit or falsify data, in a way that may entail a false image of the product.e) Shall declare the quality of the product or its main elements based on specific quality standards.

Source: Law 3/2001

In this regard, the AA.CC refer to the principles contained in Law 3/2001 with the aim to ensure an adequate identification of products718.

The 2014 National Program for the Control of the Traceability of Fishery and Aquaculture products states that lots of product may only be merged or split after first sale, if it is possible to trace them back to catching or harvesting stage in line with Article 58.3 of the Fisheries Control Regulation. The Implementing Regulation develops this provision and species that, in the case where as a result of the merging or splitting of the lots after first sale, fisheries and aquaculture products from several fishing vessels or aquaculture production units are mixed, operators shall be able to identify each lot of origin at least by means of their identification number referred to and make possible to trace them back to catching or harvesting stage719.

On the other hand, the Fisheries Control Regulation states that MS shall ensure that operators have in place systems and procedures to identify any operator from whom they have been supplied with lots of fisheries and aquaculture products and to whom these products have been supplied720. The Implementing Regulation states that these systems and procedures will allow operators to identify the immediate supplier(s) and, except when they are final consumers, the immediate buyer(s) of the fisheries and aquaculture products721.

2.6.2.2. Labeling requirements and information

Each lot of products shall comply with the minimum requirements on labeling and information referred to in Article 58 (5) of the Fisheries Control Regulation, in a way to ensure the information of fishery products722. Thus, operators are required to:

� Provide the information on fisheries and aquaculture products referred to in Article 58 (5) of the Fisheries Control Regulation.

718 Art. 66, Fisheries Law of the Murcia Region; Art. 60.1 of the Fisheries Law of the Balearic Island, and Art. 6.3 a) of the Fisheries Quality Law of Andalucía.719 Art. 67.3, Implementing Regulation.720 Art. 58.4, Fisheries Control Regulation.721 Art. 67.4, Implementing Regulation.722 Art. 67.5, Ibid.


� Update the information resulting from the merging or splitting of lots after first sale.

� Establish a way of identification to affix such information (throughout the implementation of bar codes, electronic chip or a similar device or marking system).

� Make this information available at all stages of production, processing and distribution in such a way to be the most accessible to the competent authorities of MS To this end, MS shall cooperate among them.

Table 30: MINIMUM REQUIREMENTS ON LABELING AND INFORMATION

723

Article 58.5 Fisheries Control Regulation

Among the minimum requirements on labeling and information concerning each lot of fisheries and aquaculture products, it shall be included:

a) the identification number of each lot;b) the external identification number and name of the fishing vessel or the name of the aquaculture production unit;c) the FAO Alpha-3 code of each species;d) the date of catches or the date of production;e) the quantities of each species in kilograms expressed in net weight or, where appropriate, the number of individuals723;f) fthe name and address of the suppliers;g) the information to consumers provided for in Article 8 of Regulation (EC) No 2065/2001: the commercial designation, the scientific name, the relevant geographical area and the production method;h) whether the fisheries products have been previously frozen or not.

Source: Fisheries Control Regulation

It should be noted that most of the AA.CC have not carried out a legal development in this area, therefore they directly apply European and national law. However, the Fisheries law of the Valencian Community establishes on a mandatory basis in Article 63.5 requirements on additional information that are not enforceable either in EU or State law, such is the price in origin of the product, the name of port and the date of landing724.

The Fisheries Control Regulation recognizes that the information listed in Article 58.5, points (a) to (f) shall not apply to fisheries and aquaculture products imported into the EU with catch certificates submitted in accordance with the IUU Regulation725. The Implementing Regulation extends in its Art. 67.11 the list of products to which such information is not applicable726:

723 Art. 7.9, Regulation (EU) 2015/812.724 This has motivated the submission by an association on 28 January 2015 of a brief before the Secretariat of the Council for the Market Unit claiming “the existence of obstacles to the freedom of establishment and free movement in relation to the requirements on label-ling of fresh, refrigerated or boiled fishery products which are transported or placed on the market in establishments of the Valencian Community”. Available at: http://www.mineco.gob.es/stfls/mineco/economia/ficheros/pdf/COMERCIOetiquetadoproductospesca1.pdf.725 Art. 58.7, Fisheries Control Regulation.726 In fact, the Proposal for Regulation of the European Parliament and of the Council amending Regulation (EC) No 1224/2009 of the Council establishing a Community control system for ensuring compliance with the rules of the common fisheries policy (COM (2013) 09 final), adds a new paragraph to Article 58.7 specifying the products mentioned in the previous paragraph.

http://www.mineco.gob.es/stfls/mineco/economia/ficheros/pdf/COMERCIOetiquetadoproductospesca1.pdf


a) imported fisheries and aquaculture products which are excluded from the scope of appli-cation of the catch certificate in accordance with Article 12 (5) of the IUU Regulation;

b) fisheries and aquaculture products caught or farmed in freshwater; and

c) ornamental fish, crustaceans and mollusks.

Art. 58.8 of the Fisheries Control Regulation727 states foresees an exemption by which MS may be exempted from the requirements set to guarantee the correct traceability of fishery and aquaculture products which are sold in small quantities directly from fishing vessels to consumers, provided that their value does not exceed 50 EUR per day.

The Implementing Regulation adds that the information referred to in points a) to h) of Article 58 (5) of the Fisheries Control Regulation shall not apply to fishery and aquaculture products included in the tariff headings 1604 and 1605 of the Combined Nomenclature728.

2.6.2.3. Information available to consumers

Among the above-mentioned labeling and information requirements, some of them must be avail-able for the knowledge of consumers at the retail stage, in accordance with Article 58.6 of the Fisheries Control Regulation. To this end, the Implementing Regulation calls on MS to ensure that the information relating to “trade name, scientific name of the species, catch area referred to in Article 5 of Regulation (EC) No 2065/2001729 and the method of production” appears on the label or in an appropriate brand730. In addition, there is a duty to ensure that the word “defrosted” appears on the label or on the brand on frozen products731. The COM Regulation expressly differentiates between the information that must be mandatorily included in the labeling and available to the final consumer or groups732, and that which has additional voluntary character733.

Information to consumers has become a key issue for the EU, so that Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on food information to consum-ers (Regulation (EU) 1169/2011)734, seeks to enhance consumer protection by providing the widest possible information735. The concern in this area is such that one MEP raised in February 2011 a question to the EC showing their disagreement with the lack of information on the place of origin of fish preserves, unlike the informative content that was offered for fresh fishery and aquaculture products736.

727 The proposal for amendment of the Fisheries Control Regulation (COM (2013) 09 final) replaces this paragraph.728 The proposal for amendment of the Fisheries Control Regulation (COM (2013) 09 final) adds paragraph 7 ter to reflect the content of this provision in the provisionprovision in the Fisheries Control Regulation. The combined nomenclature is the nomenclature for goods of the EU common customs system.729 As seen in the previous section, this Regulation was repealed by the COM Regulation.730 Art. 68.1, Implementing Regulation.731 Art. 68.3, Ibid.732 Art. 35, COM Regulation: “1. (…) a) the commercial designation of the species and its scientific name, b) the production method (…), c) the area where the product was caught or farmed and the category of fishing gear in capture of fisheries (…), d) whether the product has been defrosted, e) the date of minimum durability, where appropriate (…)”.733 Art. 39, Ibid.734 OJ L 304, of 22.11.2011.735 Art. 1.1, Implementing Regulation.736 The question was raised on 7 february 2011 by the MEP Guido Milana (from the Group of the Progressive Alliance of Socialists and Democrats) and was answered by the Commissioner for Maritime Affairs and Fisheries, Mrs. Damanaki on 23 March 2011. Mrs. Dam-anaki acknowledged that there was an open debate on this, bearing in mind that the information given to consumers is something of vital


In this respect, we can refer to some examples of regional legislation where it is explicitly stated who is responsible for reporting such data to the consumer, such it is the Fisheries Law of Cataluña. In its Article 93.2 provides that retail establishments will provide all the information related to the traceability of the product to consumers. In addition, Decree 124/2010 of 15 July on the regulation of the references to the origin or Galician provenance in the labeling, presentation and advertising of food products737 states that the operators will be the ones to introduce the product’s origin or provenance in the labeling process.

2.6.3. posT-landing acTiviTies

Once the fishery products have landed in the territory of a MS, they must undergo a series of procedures to ensure the integrated control of the fishing activity. These activities are as follows: weighing, placing the product on its first sale, compliance with the sales note, the take-over decla-ration or, failing this, the transport document.

2.6.3.1. Weighing of fishery products

As a general rule, the Fisheries Control Regulation states that fishery products will be weighed at the time of landing, before they are stored, transported or sold738. The Regulation provides that products transhipped between EU fishing vessels, which are to be landed in a port outside the EU, will have to be weighed before being transported away from the port or place of transshipment739.

For the weighing procedure to be performed within the legal parameters, the Fisheries Control Regulation requires the MS weighing the products to be carried out through systems approved by the competent authorities, unless they have adopted a sampling plan740 counting with the approval of the EC741. The Implementing Regulation lists a number of requirements for the implementation of the weighing systems742:

� Weighing systems shall be calibrated and sealed according to national systems.

� The person responsible for the weighing system must keep a calibration record.

� When the weighing is carried out on a conveyor system, a visible device must be installed to record the cumulative total weight.

However, Article 60.3 of the Fisheries Control Regulation provides an exemption at the time of carry-ing out the weighing of products. In such a way MS may authorize the weighing of fishery products on board the vessel if a sampling plan has been adopted. The Implementing Regulation stipulates that for fishery products weighed on board an EU fishing vessel and re-weighed on land after land-

interest to the EU. In this manner, the EC raised the possibility of amending the CFP to offer a more precise information regarding the origin of fisheries and aquaculture products.737 DOG No. 143, of 28.07.2010, p. 13670.738 Art. 60.2, Fisheries Control Regulation.739 Art. 71.1, Implementing Regulation.740 Art. 60.1, A sampling plan “shall include a sampling procedure and decision criteria to be applied to the lots based on examination of the prescribed number of sample units and subsequent analytical units of the size indicated in the methods determined”. Available at: FAO, WHO, Sampling, methods and manipulation plans. In Joint Programme FAO/WHO on food standards, Codex Alimentarus. Gen-eral Requirements (Food sanitation) Supplement to volume 1B, Rome, 1998. Available at: http://www.fao.org/docrep/w6419s/w6419s0l.htm#6.%20planes%20de%20muestreo,%20m%C3%A9todos%20y%20manipulaci%C3%B3n.741 Art. 60.1, Fisheries Control Regulation.742 Art. 72, Implementing Regulation.

http://www.fao.org/docrep/w6419s/w6419s0l.htm#6.%20planes%20de%20muestreo,%20m%C3%A9todos%20y%20manipulaci%C3%B3n

http://www.fao.org/docrep/w6419s/w6419s0l.htm#6.%20planes%20de%20muestreo,%20m%C3%A9todos%20y%20manipulaci%C3%B3n


ing, the figure resulting from ground weighing shall be used to complete the landing declarations, the transport document, the sales notes and the take-over declaration743.

The regulation of sampling plans is reflected in Article 76 of the Implementing Regulation. This pro-vision develops the procedure for the adoption and modification of the sampling plans.

a) The sampling plan will be adopted by the EE.MM in accordance with the methodology based on the risk analysis described in Annex XIX.

b) If the sampling plan allows for weighing on board the fishing vessel, it will be adopted by the MS in accordance with the methodology based on the risk analysis described in Annex XX.

MS willing to adopt a sampling plan, should have submitted them preferably within six months from the entry into force of the Implementing Regulation, and should have contained the weighing pro-cedures in question for a period of three years744. If it is adopted or amended after that date, it shall be submitted for approval three months before the end of the year in question745.

In the case of Spain, a sampling plan was submitted to the EC on 27 February 2013, which was finally approved by Commission Implementing Decision 2013/418/EU on 31 July 2013. With the adoption of this plan, it is sought to carry out the weighing of only a representative sample of the products to be landed, without the need to weigh the total of catches746.

To this end, the operators responsible for the vessels will select the boxes containing fishery prod-ucts according to the fishing modality and the fishing ground from which they originate747. However, the weighing of catches according to the Spanish Sampling Plan can only be carried out at the time of landing, since weighing on board of the vessel has not been approved.

In addition to allowing weighing on board the vessel, in some circumstances, Article 61 of the Fish-eries Control Regulation748 allows weighing of fishery products to be carried out after transport, in the following cases:

a) When they are transported to a destination within the same MS territory in question and the latter has adopted a control plan for the weighing of fishery products after transport from the place of landing, approved by the EC. The Implementing Regulation subjects the presentation of this control plan to a period of six months from the entry into force of that Regulation749. That is, no later than November 2011.

b) When products are transported to another MS, provided they are intended for registered buyers, licensed markets or other agencies or persons responsible for their first com-

743 Art. 71.2, Ibid.744 Art. 76.3, Ibid.745 Art. 76.4, Ibid.746 Except for monkfish, blue-fin tuna, albacore tuna, bigeye tuna, tuna and swordfish which must be weighed in their totality, as re-quired in part 4 of the Spanish Sampling Plan.747 Circular N. 76/13 of the National Federation of Fishermen’s Organisation. Available at: http://www.cofradiaburela.org/multimedia/adjuntos/1376902737.pdf.748 The proposal of amendment of the Fisheries Control Regulation (COM (2013) 09 final) will substitute this last article, adding that both the control plans and the common control plans will be approved by the Commission through an implementing act. In both cases, their adoption must be based on a risk based assessment methodology in order to determine the size of the samples, the risk levels, risk criteria and content of the control plans. But for the moment, the methodology to establish a sampling plan in accordance to Articles 60 (1) or 60 (3) of the Fisheries Control Regulation is developed in Annexes XIX, XX, XXI and XXII of the Implementing Regulation.749 Art. 77.2, Implementing Regulation.

http://www.cofradiaburela.org/multimedia/adjuntos/1376902737.pdf

http://www.cofradiaburela.org/multimedia/adjuntos/1376902737.pdf


Illustration 12:

Weighing of lots of fishSource: Calafellvalo, Blanes, Girona

mercialization in another MS. This authorization shall be subject to the prior adoption of a common control program, as defined in Article 94 of the Fisheries Control Regulation, between the MS concerned. Likewise, the Implementing Regulation establishes a period of six months from its entry into force for the presentation of the common control pro-gram750.

Spain is not authorized to weigh fishery products after transport from the place of landing, since it has not adopted any control plan or takes part in any common control program.

If weighing is carried out after landing, those responsible for the accuracy of the weighing operations shall be the authorized buyers, the authorized auctions or other bodies or persons responsible for the first marketing of the fishery products751. If the weighing is carried out on board the fishing ves-sel, the captain of that vessel is responsible. At the state level, RD 418/2015 on first sale establishes as responsible subject for this obligation the auctioned markets and authorized establishments and concessionaires who are required to elaborate a sales note752. The Implementing Regulation estab-lishes the duty to register the weighing undertaken in accordance with the following information753:

a) FAO’s alpha-3 code for heavy species;

b) the result of the weighing of each quantity of each species expressed in kilograms of the product;

c) the external identification number and the name of the fishing vessel from which the weighted quantity originates;

d) the presentation of fishery products weighed;

e) the date of weighing (YYYY-MM-DD).

The registration of this information must be kept for a period of three years. The authorized purchas-ers, the authorized auctions or other bodies or persons who are responsible for the first marketing, or storage prior to the first marketing, of fishery products, or, where appropriate, the captains of EU fishing vessels754.

750 Art. 77.4, Ibid.751 Art. 60.4, Fisheries Control Regulation.752 Art. 6.1 b), RD 418/2015 on first sale.753 Art. 70.1, Implementing Regulation.754 Art. 70.2, Ibid.


In addition, the Fisheries Control Regulation provides for the possibility that the MS competent authorities may require fishery products to be weighed before official agents prior to transport755. This power is envisaged by the Implementing Regulation by recognizing the competent authorities have full capacities for access to weighing systems and registers, among others756.

In general, the Implementing Regulation develops with a broad regulatory content the weighing of fishery products. In this way, it establishes weighing procedures for frozen products, the need for fishery products to be cleaned of ice before being weighed, as well as the application of a series of special rules for the catches of herring, mackerel and horse mackerel as regards weighing, such as: prior notification of entry and landing to ports, unloading, use of public management facilities for the weighing of herring, mackerel and horse mackerel and private management facilities for weighing fresh fish, weighing of frozen products, preservation of weighing records and monitoring of weighing757.

2.6.3.2. First sale

Once fishery products have been weighed at the time of landing, MSMS have a duty to ensure that they are registered or sold for the first time in an auction centre or to authorized buyers or producer organizations758. At the State level, RD 418/2015 on first sale contains a very detailed regulation, since it establishes the requirements of concessionaires and establishment authorized for first sale of fishery products759 and recognizes that auction will not be obligatory at the time to commercialize the products760.

With regard to regional legislation, the majority of the AA.CC establish that the first sale of fishery products will take place at auction centres or establishments authorized by the competent author-ity761. However, the Andalucian Fisheries Law contains a more detailed regulation in this regard, since apart from recognizing auction centres as the places where first sale of fresh fishery products will take place762, it also includes the improvement of first sale procedures by encouraging supple-mentary formulas to auction763.

According to article 59.2 of the Fisheries Control Regulation, buyers of fishery products must be registered before the competent authorities of the MS where the first sale is made. In this regard, RD 418/2015 on first sale expressly indicates this obligation, in accordance with the European regulations764. On the regional level, the Galician Fisheries Law is the only one that recognizes to the competent department for fisheries express powers to establish, inter alia, a “Registry for pro-cessing, conservation and marketing companies”765. In addition, the Fisheries Control Regulation

755 Art. 60.6, Fisheries Control Regulation.756 Art. 75, Implementing Regulation.757 Art. 73-81, 83-86 y 89, Ibid.758 Art. 59.1, Fisheries Control Regulation.759 Art. 6.1, RD 418/2015 on first sale. 760 Art. 4.1, Ibid.761 Art. 89, Fisheries Law of Cataluña; art. 60.2, Fisheries Law of the Valencian Community; art. 58.1, Fisheries Law of the Region of Murcia; art. 54, Fisheries Law of Balearic Islands; and art. 99 (3rd para.), Fisheries Law of Galicia.762 Art. 65.2, Fisheries Law of Andalucía.763 Art. 73.2 b), Ibid establishes as complementary measures the supply contracts, fixing withdrawal prices, and the implementation of assurance systems allowing purchasers to have access to the auction.764 The Preamble states the following: “According to Article 59(2) of Regulation (EC) No. 1224/2009 of 20 November, for those products subject to the completion of a sales note, operations may only be carried out by buyers registered in auction centers or authorized es-tablishments, which have communicated to the AA.CC their register”. 765 Art. 126.1 d), Fisheries Law of Galicia.


Illustration 13:

Auction centreSource: Fishermen Guild of Sanlúcar de Barrameda, and the Civil Guard

states that for the purposes of registration, purchasers must be identified with their VAT number, tax identification number or other identifying element. Identification, in this sense, is an indispensable condition to carry out any economic activity.

The obligations set out in this paragraph shall not apply to purchasers purchasing fishery products of less than 30 kilograms in weight and not being marketed, that is, intended solely for private con-sumption766.

2.6.3.3. Sales notes

When fishery products have been landed and subsequently sold, such products must be recorded in a sales note.

Authorized purchasers, authorized auctions and other bodies or persons authorized by the MS which are responsible for the first sale of landed fishery products shall submit a sales note767 to the MS competent authorities of the territory where first sale took place.

The deadlines for the submission of sales notes will depend on the annual turnover on first sale of those responsible subjects:766 Art. 59.3 of the Fisheries Control Regulation. The proposal for amendment (COM(2013)09 final) replaces it by the following: 3. A buy-er acquiring fisheries products up to a certain weight threshold which are not thereafter placed on the market but used only for private consumption shall be exempted from this Article”; “4. The weight threshold referred to in paragraph 3 shall initially not exceed 30 kg per day”; and “5. The Commission shall be empowered to adopt delegated acts in accordance with Article 119 a concerning the modifica-tion of the weight threshold provided for in paragraph 4 taking into account the status of the stock concerned.”. 767 Article 91 of the Implementing Regulation regulates the format which must be used for the completion and transmission of sales notes.


� If the annual turnover of first sales of fishery products is less than 200,000 EUR, the sales note must be submitted no later than 48 hours after first sale. The sales note should pref-erably be sent via electronic means768.

� If the annual turnover in first sales of fishery products is equal or higher than 200,000 EUR, the sales note must be submitted no later than 24 hours after first sale. The sales note must be sent electronically769.

Likewise, Fisheries Control Regulation Control Regulation envisages the obligation to submit a copy of the sales note to the following authorities and in the following cases:

Table 31: OBLIGATION TO SUBMIT A COPY OF THE SALES NOTE770

770 771

To the competent authorities of the flag MS

� If the MS where first sale takes places is not the flag MS of the fishing vessel which landed the fish.

� If the MS where first marketing of fishery products takes places is not the MS where products were landed.

� If landing takes place outside the EU and the first sale takes place in a third country.

To the authorities responsible for monitoring the landing of fishery

products

� If the MS where first marketing takes place is not the MS where products were landed.

To the competent authorities of the MS affected by the special

rules on the weighing of certain pelagic species771

� Upon express request, if sales notes relate to herring, macker-el and horse mackerel.


The AA.CC regulations do not expressly provide any reference to this matter, thus it is understood that they comply with the deadlines established in the European and State regulations. However, RD 418/2015 on first sale introduces some substantial modifications since it requires shipment, electronically, within a period of 24 hours to both the AA.CC competent body and the DGF772. This obligation is different if the first sale takes place in a third country: the master of the vessel or its representative will have a period of 48 hours to send the sales note to the DGF, which shall transfer the information to the AA.CC where the vessel has established its base port within 24 hours from its receipt773.

768 Art. 62.1, Fisheries Control Regulation. According to paragraph 2: “A Member State may oblige or authorise registered buyers,reg-istered auctions or other bodies or persons authorised by Member States with an annual financial turnover in first sales of fisheries products of less than EUR 200 000 to electronically record and transmit the data mentioned in Article 64(1)”. 769 Art. 63, Fisheries Control Regulation. 770 Art. 62, paragraphs 3, 4 y 5, Fisheries Control Regulation. As for the obligation for transmitting data electronically, it will follow the rules of the annual volume of business explained above.771 Art. 78, Implementing Regulation. This obligation will also apply for the take-over declaration.772 Art. 12.2, RD 418/2015, on first sale.773 Art. 12.3, Ibid.


Illustration 14:

Design of sales noteSource: Order of 4 June 2002, which determines the content and format of documents related to first sale of fishery prod-ucts in the ports of the Autonomous Community of Canarias (BOC No. 81, of 17.06.2002).

Article 65 of the Fisheries Control Regulation provides that the EC may be exempt from the require-ments relating to sales notes774:774 The proposal of the modification of the Fisheries Control Regulation (COM (2013) 09 final) replaces this article. The proposal for amendment of the Fisheries Control Regulation (COM (2013) 09 final) replaces this article by the following: “1. An exemption from the obligation to submit the sales note to the competent authorities or other authorised bodies of the Member State for fisheries products landed from certain categories of Union fishing vessels referred to in Articles 16 and 25 or for small quantities landed of fisheries prod-ucts may be granted. That small quantity shall initially not exceed 50 kg of live weight equivalent by species. The Commission shall be empowered to adopt delegated acts in accordance with Article 119a to grant such exemptions and adapt the small quantities taking into account the status of the stock concerned. 2. A buyer acquiring products up to a certain weight threshold which is not thereafter placed on the market but used only for private consumption shall be exempted from the provisions laid down in Articles 62, 63 and 64. That weight threshold shall initially not exceed 30 kg. The Commission shall be empowered to adopt delegated acts in accordance with


� Certain categories of fishing vessels with less than 10 metres length overall or landed quantities not exceeding 50 kilograms in live weight equivalent per species, provided that the MS in question has established a sampling system.

� Buyers purchasing fishery products weighing less than 30 kilograms not intended for marketing, but only used for private consumption.

2.6.3.4. Take-over declaration

If the fishery products landed are to be sold for a subsequent sale, authorized buyers, authorized auctions or other bodies or persons authorized by MS which are responsible for the first placing of products on the market shall submit a take-over declaration to the competent authorities of the MS where take-over takes place. The take-over declaration is also subject to two delivery times:

� If the annual financial turnover in first sales of fishery products is less than 200,000 EUR, the take-over declaration shall be submitted no later than 48 hours after the completion of landing775.

� If the annual financial turnover in first sale of fishery products fishery is equal or more than 200,000 EUR, the take-over declaration shall be registered and submitted no later than 24 hours after the completion of landing. The take-over declaration shall be trans-mitted mandatorily by electronic means776.

Likewise with sale notes, RD 418/2015 on first sale establishes a period of 24 hours for transmitting the take-over declaration by electronic means to the AC and the GSF777. On the other hand, with regard to the AC legislation, the Fisheries Law of the Region of Murcia expressly states in Article 59.3 that the take-over declaration must be submitted to the competent department within the peri-od established by the regulation in force.

In cases where the take-over takes place is not the flag MS of the fishing vessel which landed the fish, the MS shall ensure that a copy of the take-over declaration is submitted, if possible by elec-tronic means, to the competent authorities of flag MS concerned778.

2.6.3.5. Transport document

This document is mandatory for fishery products which are landed within the EU, either unpro-cessed or after having been processed on board 779, for which neither a sales note nor a take-over declaration has been submitted and provided that they are transported to a place other than that of landing780. The transport document shall be submitted by the transporter to the competent author-ities of the MS in whose territory the landing took place, within 48 hours after the loading of the products on the transport vehicle. In addition, it must always accompany the fishery products up to the time of the first sale, unless the transporter has submitted, by electronic means, the transport document to the MS authorities before the transport begins.

Article 119a concerning the modification of that weight threshold taking into account the status of the stock concerned”. 775 Art. 66.1, Fisheries Control Regulation.776 Art. 67, Ibid.777 Art. 12.2, RD 418/2015 on first sale.778 Art. 66.2, Fisheries Control Regulation.779 Art. 4(21), Ibid, Fisheries Control Regulation defines “processing” as “the process by which the presentation was prepared. It in-cludes filleting, packing, canning, freezing, smoking, salting, cooking, pickling, drying or preparing fish for market in any other manner”.780 Art. 68.1, Ibid.


If the products are transported to a MS other than the MS of landing, the MS in whose territory the first marketing is declared to take place shall receive the transport document781:

� Either electronically, by the competent authorities of the flag MS, if the transporter has transmitted it before the beginning of the transport.

� Either a copy of the transport document transmitted by the transporter, within 48 hours following the loading of the fishery products in the transport vehicle.

According to the Spanish law, this document must be submitted before the AA.CC and the DGF electronically and within a period of 24 hours782.

The figure of the transporter is essential for the completion and presentation of the transport docu-ment, to the extent that the Fisheries Control Regulation makes him responsible for the accuracy of the content of the transport document783. However, RD 418/2015 on first sale amends this regulation by making the “concession holder of the auction or authorized establishment of the port or place where the products are landed” responsible for completing the transport document. They will have the obligation to deliver it to the transporter, except in certain cases where the AA.CC may authorize the transporter to comply with this obligation784.

Finally, the Fisheries Control Regulation provides for exemptions to the obligation to complete and submit the transport document785:

� In the case the fishery products are transported within a port area786 or not more than 20 kilometers from the place of landing.

� In the case where the transportation document is replaced by a copy of the landing declaration787 pertaining to the quantities transported, or any equivalent document con-taining the same level of information.

781 Art. 68, paragraphs 2 and 3, Ibid.782 Art. 12.2, RD 418/2015 on first sale.783 Art. 68.4, Fisheries Control Regulation.784 Art. 10.2, RD 418/2015 on first sale.785 Art. 68, paragraphs 6 and 8, Fisheries Control Regulation. 786 Art. 10.5 of RD 418/2015 on first sale foresees this exemption provided that the property of the lots is accredited. 787 See section C, point 2.1.1.1, of this document.


2.6.3.6. Contents of the sales notes, take-over declaration and transport document

Table 32: CONTENTS OF THE SALES NOTES788

Fisheries Control Regulation RD 418/2015 of first sale

Article 64.1

The sales notes referred to in Articles 62 and 63 shall contain at least the following information:a) the external identification number and the name of the fishing vessel that has landed the product concerned;b) the port and date of landing;c) the name of the fishing vessel´s operator or master if different, the name of the seller;d) the name of the buyer and its VAT number, its tax identification number, or other unique identifier;e) the FAO alpha-3 code of each species and the relevant geographical area in which the catches were taken;f) the quantities of each species in kilograms in product weight, broken down by type of product presentation or, where appropriate, the number of individuals where appropriate, the number of indi-viduals;g) for all products subject to marketing standards, as appropriate, the individual size or weight, grade, presentation and freshness;h) where appropriate, the destination of products withdrawn from the market (carry-over, use for ani-mal feed, for production of meal for animal feed, for bait or for non-food purposes)788;i) the place and date of sale;j) where possible, the reference number and the date of invoice and, where applicable, the sales contract; k) where applicable, reference to the take-over declaration referred to in Article 66 or the transport document referred to in Article 68;

Article 7.1

At the time of the first sale of fishery products in any of the modalities of Article 5, except for paragraphs 5.1.c) and 5.3, auction centres or authorized establishments shall complete a sales note and transmit it by electronic means.

Each sales note shall have a unique identification code, which shall contain at least the following fields, as well as those that may be determined by the AA.CC, notwithstanding what is established in Law 20/2013 of 9 December:a) Lots Number.b) The trade name, scientific name and the FAO Alpha-3 code for each species.c) Date of capture.d) the relevant geographical area or catch area as appropriate.e) Identification of the production unit. In the case of fishing vessels of 10 meters length overall or more, the fishing trip code of the logbook shall also be indicated.f) The name, port code and date of landing or place and date of unloading.g) Name and surnames or business name and addresses of the seller and the buyer, as well as the corresponding tax identification numbers. The name of the owner or master of the fishing vessel should be entered in any case where appropriate.h) Method of production.i) Place and date of sale.j) the quantities of each species sold, determin-ing the net weight in kilograms or number of units per kilogram as appropriate and the price per kilogram.

788 Regulation (EU) 2015/812 on the landing obligation replaces this paragraph by the following: “h) where appropriate, the destination of products withdrawn from the market for storage of fishery products in accordance with Article 30 of Regulation (EU) No 1379/2013; and h bis) where appropriate, the quantities in kilograms expressed in net weight, or the number of individuals, below the applicable minimum conservation reference size, and the destination thereof”.


789Continuation

l) the price789. k) Method of presentation, as provided in Annex I of the Implementing Regulation.l) Fishing gear, according to Annex III of the COM Regulation.m) In the case of species subject to common marketing standards, their size and freshness or other information in force shall be expressed.n) In the case of products which may be stored by producer organizations pursuant to Article 30 of the COM Regulation, this circumstance and the place of storage shall be indicated.o) In the case of products under the minimum conservation size, they must indicate their destina-tion, which cannot be direct human consumption.p) Reference to food contract or other prior agreements in the case of contractual transac-tions.q) If applicable, the reference to the transport document or take-over declaration shall be indi-cated. In the case of European products caught in non- EU waters, the reference to the T2M Customs document must be indicated.


With the approval of RD 418/2015 on first sale, the regulation of this subject becomes more exhaus-tive than that regarded in the Fisheries Control Regulation, since it is required to include the lot number, commercial name and scientific name of Species, the method of production, the fishing gear used, the size (in addition to freshness or other information) for species subject to common marketing standards, the relevant indication of whether products are going to be stored by produc-ers organizations as well as the place of storage and, finally, reference to the food contract or other previous agreements.

789 Art. 62(6) of the Fisheries Control Regulation provides: “Where a sales note does not correspond to the invoice or to a document replacing it, as referred to in Articles 218 and 219 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, the Member State concerned shall adopt the necessary provisions to ensure that the information on the price exclud-ing tax for deliveries of goods to the purchaser is identical to that indicated on the invoice. Member States shall adopt the necessary provisions to ensure that the information on the price excluding tax for deliveries of goods to the purchaser is identical to that indicated on the invoice”.


Table 33: CONTENT OF THE TAKE-OVER DECLARATION790

Fisheries Control Regulation

RD 418/2015 on first sale

Article 66.3 790

The take-over declaration referred to in paragraph 1 shall contain at least the fol-lowing information: a. the external identification

number and the name of the fishing vessel which has landed the products;

b. the port and the date of landing;

c. the name of the vessel´s operator or master;

d. the FAO 3-alpha code for each species, and its rel-evant geographical area in which the catches were taken;

e. the quantities of each species stored in kilo-grams in product weight, broken down by type of products presentation or, where appropriate, the number of individuals;

f. the name and address of the facilities where the products are stored;

g. where applicable, ref-erence to the transport document specified to in Article 68.

Article 9.1

When fishery products which must comply with a sales note are intend-ed to be stored alive or stabilized in any of the ways set out in Article 30.d) of the COM Regulation for subsequent sale, fish auction centre or authorized establishments shall complete a take-over declaration and deliver it to producers.

Each take-over declaration shall have a unique identification code, which shall contain at least the following fields, as well as those that may be determined by the AA.CC, notwithstanding what established in Law20/2013 of 9 December:a. Lots Number.b. The trade name, scientific name and the FAO Alpha-3 code for

each species.c. Date of capture.d. The relevant geographical area or catch area as appropriate.e. Identification of the production unit. In the case of fishing vessels

of 10 meters length overall or more, the fishing trip code of the log-book shall also be indicated.

f. The name, port code and date of landing or place and date of unloading.

g. Name and surname or business name and addresses of the seller, as well as their tax identification number. The name of the owner or master of the fishing vessel must be entered in any case.

h. Method of production.i. Mode of presentation at the entrance and exit of take-over in

accordance with Annex I of the Implementing Regulation.j. The quantities of each species, determining the net weight in kilo-

grams or number of individuals’ per kilogram.k. In the case of species subject to common marketing standards,

their size and freshness or other information in force shall be expressed.

l. The name and address of the place where the products are stored.m. Fishing gear, in accordance with Annex III of the COM Regulation.n. If applicable, the reference of the transport document or the T2M

customs document.o. If the storage is produced outside the port facilities, the transport

vehicle will be identified on each route with the registration number, and the transporter must have a copy of the take-over declaration. Also, this document will be valid for returning to the auction centre of origin for first sale.


If compared to the Fisheries Control Regulation, RD 418/2015 on first sale adds new requirements for the completion of the take-over i.e., take-over i.e., the lots number, trade name and scientific name of each species, method of production, size (in addition to freshness or other information) for

790 Regulation (EU) 2015/812 in relation to the landing obligation adds the following letter: “h) where appropriate, the quantities in kilograms expressed in net weight, or the number of individuals, below the applicable minimum conservation reference size; and the destination thereof”.


species subject to common marketing standards, the fishing gear used and the identification of the transport vehicle, in case the storage is carried out outside the port facilities.

With regard to AA.CC legislation, the Fisheries Law of the Region of Murcia provides for the possi-bility of the competent Department to introduce, in addition to the minimum conditions required by the State and EU regulations, some additional modifications such as those relating to the format of the document791.

Table 34: CONTENT OF THE TRANSPORT DOCUMENT792

Fisheries Control Regulation

RD 418/2015 of first sale

Article 68.5792

The transport document shall indicate:a. the place of destination

of the consignment(s) and the identification of the transport vehicle;

b. the external identification number and the name of the fishing vessel that has landed the products;

c. the FAO 3-alpha code for each species, and the relevant geographical area in which the catch-es have been made;

d. the quantities of each species transported in kilograms by products weight, broken down by type of product pre-sentation or, where appropriate, the number of individuals;

e. the name(s) and address(es) of the consignee(s);

f. place and date of load-ing.

Article 10.4

Each transport document will have a unique identification code, which must contain at least the following fields, as well as those that can determine the AA.CC, notwithstanding the provisions of Law 20/2013, of 9 December:a. Lots number.b. The trade name, scientific name and the FAO Alpha-3 code for

each species.c. Date of capture.d. the relevant geographical area or catch area as appropriate.e. Identification of the production unit. In the case of fishing vessels

of 10 meters length overall or more, the fishing trip code of the logbook shall also be indicated.

f. The name, port code and date of landing or place and date of unloading.

g. Identification of the consignee or consignees, indicating name, address and the corresponding tax identification numbers. In any case, the name of the owner or master of the fishing vessel should be given where appropriate.

h. Method of production.i. Method of presentation, as set out in the Annex I of the Implement-

ing Regulation.j. the quantities of each species, determining the net weight in

kilograms or number of individuals per kilogram as appropriate, subject to the exceptions provided for under Article 61 of the Fish-eries Control Regulation.

k. In the case of species subject to common marketing stand-ards, their size and freshness or other information in force shall be expressed.

l. Place and date of loading.m. In the case of products stored by means of a take-over declara-

tion, when the first sale takes place in an auction centre or at an authorized establishment other than the one of origin, the refer-ence to the take-over declaration must be indicated.

n. Fishing gear, in accordance with Annex III of the COM Regula-tion.

o. Name and address of the place of destination of the shipment or consignments and the identification of the transport vehi-cle, with expression of the registration.


791 Art. 59.2, Fisheries Law of the Region of Murcia. 792 Regulation (EU) 2015/812 on the landing obligation adds the following: “(g) where appropriate, the quantities in kilograms expressed in net weight, or the number of individuals, below the applicable minimum conservation reference size”.


RD 418/2015 on first sale broadens the mandatory content of the transport document and introduc-es as requirements: the lots number, trade name and scientific name of each species, production method, caliber (in addition to freshness or other type of information) in the case of species subject to common marketing standards, the gear used and the reference to the place of destination of the consignment(s) and the identification of the transport vehicle.

2.6.4. producer organizaTions and price and inTervenTion arrangemenTs

European legislation does not define producer organizations, therefore it is necessary to attend to national legislation, in particular to Article 52 of Law 3/2001 where it defines it as “officially rec-ognized entities established on the initiative of producers with the aim to guarantee the rational exercise of fisheries and to improve the sale conditions of its production”. To control the exercise of their activities, the Fisheries Control Regulation states that the MS shall be the ones responsible for performing this function. MS shall have the power to grant and withdraw the recognition to these entities in accordance with Chapter II of the COM Regulation.

The COM Regulation lists a number of requirements, in a way that the recognition of producer orga-nizations will be subject to the fact that793:

a) They comply with the principles laid down in Article 17794 and the rules adopted for its application;

b) They develop a sufficient economic activity in the territory of the concerned MS, or in part thereof, in particular as regards the number of members or the volume of marketing production;

c) They have recognized legal personality under the MS national law of application, and being established and having the registered office in their territory;

d) Being able to pursue the objectives referred to in Article 7795;

e) Comply with the competition rules referred to in Chapter V;

f) Do not entail any abuse of dominant position in a certain market;

g) Provide the relevant information concerning their affiliation, governance and financing sources.

793 Art. 14.1, COM Regulation.794 These are: compliance by its members with the rules adopted by the organisation in terms of fisheries exploitation, production and marketing; non-discrimination among members; the levying of a financial contribution from its members in order to finance the organiza-tion; a democratic functioning that enables the members to scrutinise their organisation and its decisions; the imposition of penalties for infringement; the definition of rules on the admission of new members and the withdrawal of membership and the definition of accounting and budgetary rules necessary for the management of the organisation.795 The COM Regulation differentiates the objectives to be pursued by producer organizations at the fishery sector from those to be accomplished by producer organizations at the acuaculture sector: the first shall promote sustainable fishing activities in full compliance with the conservation policy established, respect the minimum conservation reference size to which certain catches are subject, con-tributing to the traceability of fishery products and access to clear and comprehensive information for consumers as well as contributing to the elimination of IUU fishing. Furthermore, producer organizations shall comply with two or more of the following general objectives: improving the conditions for the placing on the market of their members’ fishery and aquaculture products, improving economic returns, stabilising the markets, contributing to food supply, promoting high food quality and safety standards as well as contributing to employ-ment and reducing environmental impact through measures to improve the selectivity of fishing gears.


In national legislation, Law 3/2001 requires producer organizations to be legally established and to carry out “a sufficient and developed economic activity in certain geographical areas”, among others796. Otherwise, the MAGRAMA and the AA.CC may be able to withdraw their recognition797. This is also recognized under RD 724/2003 of 13 June, which regulates fisheries and aquaculture producer organizations and their associates798. With regard to the AA.CC, regional laws recognize the competent Department for fisheries as the responsible body for carrying out those controls and for granting or withdrawing the recognition to producer organizations799.

According to the 2013 MAGRAMA Annual Report on Activities, as of 31 December 2013 there were forty-six recognized producers’ organizations, of which seventeen were of national level and twen-ty-nine were of regional level800.

On the other hand, the COM Regulation also recognizes the EC as a competent body to carry out controls over producer organizations, in such a way that it may request MS to withdraw the recogni-tion of such entities801. In this regard, MS shall notify by electronic means any decision concerning the granting or withdrawal of recognition802.

Finally, with regard to the control of the price and intervention arrangements established in Article 70 of the Fisheries Control Regulation, the regulation on this matter was repealed with the approval of the current COM Regulation803.

Marketing control

In general terms, it can be stated that Spain success in complying the European rules concerning the common principles and standards for the control of marketing. However, the obligation set in Article 56.2 of the Fisheries Control Regulation based on proving the geographical area of catches to which a minimum reference size has been established, is not covered by either the national nor AA.CC legislation. Nonetheless, we understand that this obligation is being implemented given that EU legislation is directly applicable in Spain.

The approval of RD 418/2015 on first sale has improved the regulation of the traceability system, providing consumers information more complete in relation to fishery products. At the regional level, it should be noted that some competent bodies of the AA.CC, in collaboration with other institutions, have elaborated some documents setting out the minimum information that fishery and aquaculture products must incorporate with the aim to comply with the aim to comply with the European requirements on traceability803.

796 Art. 54, Law 3/2001.797 Art. 55.2, Ibid.798 BOE No. 153, of 27.06.2003. Arts. 1 and 5. 799 Art. 65.1, Fisheries Law of Cataluña; art. 48.3, Fisheries Law of the Region of Murcia; art. 14.2, Decree 147/1997, of 27 May, which requires, regulates and promotes the marketing of fisheries products (BOJA No. 70, of 19.06.1997); art. 43, Fisheries Law of Balearic Islands; art. 54.1, Fisheries Law of Canary Islands; and art. 91, Fisheries Law of Galicia.800 2013 MAGRAMA Annual Report on Activities, p. 1300.801 Art. 20.1, COM Regulation.802 Art. 20.2, ibid.803 Given the broad content, it is necessary to highlight the “Guide of good practices for sanitation of fishery lots in Cataluña and related activities”. Available at: http://www.gencat.cat/salut/acsa/html/ca/dir1312/dd16863/guia_llotges_peix.pdf.

http://www.gencat.cat/salut/acsa/html/ca/dir1312/dd16863/guia_llotges_peix.pdf


Continuation

Regarding the weighing of fishery products, there is no specific rule either in national or in the AA.CC legislation specifically regulating this aspect. However, failure to comply with all weighing obligations and requirements prior to first sale of products is classified as a serious infringement as established in Article 100.2 (t) of Law 3/2001.

In relation to the first sale of fishery products, RD 418/2015 on first sale provides an exhaustive regulation on this matter, establishing the places for landing and unloading as well as the requirements to be met by auction centres and other authorized estab-lishments for marketing. It also specifies the conditions for first sale and recognizes the non-binding nature of auction as a marketing system to carry out first sale.

Regarding the sales notes, Article 103 j) of Law 3/2001 classifies as a serious infringe-ment the non issuance of sales notes, or the inclusion of false information in it. National law, through RD 418/2015 on first sale, is more restrictive than the Fisheries Control Regulation in terms of the transmission and format for transmitting sales notes, requiring to transmit sales notes electronically within 24 hours from the first sale, irrespective of whether the annual financial turnover in first sale is less or higher than 200,000 EUR. However, the Fisheries Control Regulation establishes a deadline of 48 hours for the first case, and does not require but just recommends electronic transmission.

In the case of the take-over declaration, RD 418/2015 on first sale also requires submit submitting it by electronic means and within a period of 24 hours from the end of landing.

In addition, the minimum content of sales notes the take-over declaration and the trans-port document regulated in RD 418/2015 on first sale is more exhaustive than in EU regulations.

In regards to the transport document, Spanish law classifies it as a serious infringe-ment to transport fishery products without the corresponding transport documentation in accordance with the provisions of Article 103.d of Law 3/2001.

Finally, in relation to the producer organizations, both national and regional legislation regulate all aspects concerning these entities recognition requirements in line with the EU legislation (COM Regulation).

2.7. Surveillance

MS must carry out surveillance activities in EU waters under their jurisdiction and adopt the neces-sary measures when the information received through sighting804 or detection does not correspond to the information available.

Surveillance must be carried out based on:

a) Sightings of fishing vessels by inspection vessels or surveillance aircrafts,

804 Article 2.15, Implementing Regulation.


b) The VMS,

c) Any other detection and identification methods.

According to Version 1.1 of the 2014-2020 EMFF Operational Program for Spain to carry out surveil-lance and inspection activities there exist a Framework Agreement between the Ministry of Defense and the MAGRAMA concerning inspection and surveillance on maritime fishing activities. These ministerial departments count with inspection vessels and surveillance aircrafts. Likewise, to carry out these functions, there is a Framework Agreement between the Ministry of Domestic Affairs and the MAGRAMA. These inspection and surveillance activities are developed in accordance with the Annual General Plan and the Annual Programme for the Integral Control of Fishing Activities. Ver-sion 1.1 of the Operational Programme included the need the implementation of new technologies and to develop pilot projects within the field of fisheries control and surveillance.

The General Directorate of the Civil Guard, the AA.CC and the EFCA are also allowed to conduct surveillance activities.

When sighting or detecting data does not correspond with the other available information, rele-vant investigations should be undertaken. The Fisheries Control Regulation requires a surveillance report to be drawn up:

a) If the sighting or detection refers to a fishing vessel of another MS or a third country, and the information does not correspond to any other available information that is available to the coastal State.

b) If an official of a MS sights or detects a fishing vessel engaged in activities that may be considered to be an infringement of the rules of the common fisheries policy.

This surveillance report shall be sent, if possible by electronic means, to the competent authorities of the flag MS or third country, and in the latter case, to the EC as well. It must also be sent to the competent authorities of the coastal MS in the first case. In these cases there is a requirement to take prompt action and undertake the necessary investigations and checks to determine appropri-ate follow-up805.

805 Article 72.1 and 2, Fisheries Control Regulation.


Table 35: CONTENT OF A SURVEILLANCE REPORT

General Information � Date of sighting. � Originating MS and name of single authority.

Details of Fishing Vessel

� Flag State. � Name. � External identification. � IRCS. � Lloyds/IMO (*) Number, if applicable. � Description of vessel if observed visually. � Type. � Position in latitude and minutes, longitude and minutes. � Fishing area, sub-area, and division. � Details of how sighting or detection was made. � Visual VMS Radar Radio traffic Other (as applicable). � State if radio contact was made with vessel. � Details of person communicated with. � Time and activity of sighting or detection of the vessel. � Date... Time... Activity... Position... Course... Speed. � Record of sightings made. � Photograph... Video... Audio... Written. � Attached photograph or sketch of vessel if applicable. � Reporting Official.

Notes on information for surveillance report

1) Submit as comprehensive information as possible.2) Vessel name, call sign, flag and if possible registration and Lloyd

IMO (*) number are to be obtained from what is seen/detected of, or regarding, the vessel or from radio contact with the vessels (the source of the information must be reported).

3) Distinguishing markings as applicable: Indicate if the name and port of registry of the ship were visible. Record hull and superstructure colours, number of masts, and position of bridge, the size of the chimney etc.

4) Type of vessel as applicable: Describe the type of vessel and gear sighted (e.g. longliner, trawler, factory ship, freighter).

5) Position: Record the initial sighting of the vessel, including fishing area/subarea/division.

6) Activity of the sighted/detected vessel as applicable: Record the time of the sighting, activity of the vessel at that time and heading (degrees). Record whether the vessel was fishing, setting fishing gear, hauling or other activities.

7) Record of sighting/detection: Indicate if the sighting/detection of the vessel was recorded through video or photograph.

8) Comments: indicate the course and speed of the vessel. Summarize any radio conversation that took place with indication of the name, nationality, position given by the person(s) contacted on board of the sighted/detected vessel.

9) Diagram of the vessel as applicable: draw the profile of the vessel, indicating any distinguishing markings that could be used for identi-fication.

Source: Annex XXIII of the Commission Implementing Regulation

Surveillance reports must be incorporated in an electronic database, which contains the inspection


and surveillance reports drawn up by their officials. These reports must be available during at least a period of 3 years, according to article 78 of the Fisheries Control Regulation.

In addition to sightings carried out by fishing vessels and surveillance aircrafts, individual citizens, civil society organizations, including environmental protection organisations, as well as representa-tives of fisheries or fish trade stakeholder interests can submit documented information regarding sighted vessels to the EC or the body designated by it, or, where appropriate, to the flag MS and other MS, which shall examine it806.

Likewise, functions undertaken by observers are of great utility for surveillance purposes. The observers’ programmes vary according to the management aim. The main three purposes are:

� Scientific: including stock assessments (target species/accidental fishing) and predic-tions of future fisheries stocks. The observer’s tasks include collecting environmental/ecological information, the composition of the catch, and the biological samples of the catches.

� Control and surveillance: it includes assessments of the fisheries activities or the tran-shipments to ensure respect to the management measures. The observer’s duties include verification of the fishing logbooks with fisheries activities and transhipments apart from the duty of making a registry of compliance with applicable rules.

� Fishing: it includes the scientific observer’s aims and the ones of control and surveil-lance. The observer’s duties also include the tasks of the previous types of observer’s programs.

The Fisheries Control Regulation includes the “control observer”, defined as the “person authorized by a national authority to observe the implementation of the rules of the common fisheries policy807. It also includes the specific figure of the control observers for monitoring of the landing obligation”808.

The functions of the control observers are based on observation programs, and they must particu-larly verify and record the fishing activities of the vessel, as well as the appropriate documents809. When a control observer notices a serious infringement, he/she must promptly report to the compe-tent authorities of the flag MS. Moreover, they must draw up an observer report810 within 30 days, if possible electronically, and forward it without delay, using, if deemed necessary, electronic means of transmission on board the fishing vessel, to their competent authorities and to the flag MS.

806 Article 72.3, Ibid.807 Art. 4.8, Fisheries Control Regulation. 808 Art. 73 bis, Ibid: “Without prejudice to Article 73(1) of this Regulation, Member States may deploy control observers on board fishing vessels flying their flag for the monitoring of fisheries subject to the landing obligation set out in Article 15 of Regulation (EU) No 1380/2013. Article 73(2) to (9) of this Regulation shall apply to those control observers”. This article was introduced by Regulation 2015/812.809 Annex XXV of the Implementing Regulation establishes how the observers must perform their tasks by taking down notes of the fisheries activities.810 This report should be inserted in the inspection and surveillance database (Art. 78, Fisheries Control Regulation).


Table 36: CONTENT OF A CONTROL OBSERVER REPORT

� Observer details. � Fishing vessel details. � Gear types carried and gear observed used during trip. � Details of fishing operations (i.e. fishing operation reference number if applicable, date, gear type

used, dimensions, mesh size, among others). � Catch. � Observations of non compliance. � End of trip summary.

Source: Annex XXVI, Implementing Regulation

For instance, the Fisheries Control Regulation provides for the possibility of permitting the tran-shipment, at designated ports or near shore locations, of pelagic catches subject to multiannual plans that have not been weighed. The latter is subject to the condition that a control observer or an agent is present on board the receiving vessel or an inspection has been carried out prior to the departure of the receiving vessel after the completion of the transhipment. Conducting this type of transhipments without weighing the catches is prohibited if the observer or agent is not present. Thus, Order AAA/658/2014 of 22 April regulating fishing with long line gear of highly migratory spe-cies811 provides that:

The General Secretariat for Fisheries will establish an observer program on board the vessels included in the CUPS (unified census of fishing longline), in accordance with the minimal require-ments established in the scope of each Regional Fisheries Management Organization, by follow-ing Articles 93 to 96, and annexes XXV and XXVI of the Commission Implementing Regulation no. 404/2011, laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy.

Likewise, a control observer may also detect that a trigger catch level has been reached, being obliged to inform without delay, the competent authorities of the coastal MS812.

2.8. Inspection and Proceedings

In order to control compliance with the CFP rules, the EU regulates the conduct of inspections813, which is carried out by agents designated by national authorities of MS, by the EC or by the EFCA814.

In the Spanish legal system, this obligation is regulated by the State Maritime Fisheries Law 3/2001, RD 176/2003 of 14 February regulating the control and inspection functions over maritime fisheries activities (RD 176/2003)815, and the specific legislation of the AA.CC for inspection activities which takes place within the management of the fisheries sector and marketing.

Since 2012, after the restructuring of the ministerial departments and the creation of the current

811 BOE No. 102, of 28.04.2014.812 Art. 53.1, Fisheries Control Regulation.813 Article 4.4, Ibid defines “inspection” as “any check which is carried out by officials regarding compliance with the rules of the com-mon fisheries policy and which is noted in an inspection report”.814 Art. 4.6, Ibid.815 BOE No. 50, of 27.02.2003.


MAGRAMA, the coordination of all competences within the control of the fishing activity corre-sponds to the SGCI.

To better ensure the exercise of the inspection function, the SGCI cooperates with816:

� The AA.CC, through joint action plans and coordinated actions through the creation of a Technical Control Group817, in which representatives of both the AA.CC and the SGCI and other civil officials meet quarterly to exchange information, create unified control proceedings and to coordinate all authorities with control competencies, among others.

� Other MS and the EU, through the participation in joint surveillance and inspection oper-ations of the UE and other States, as both in national and foreign territory and in EU or internal fishing grounds.

Within this cooperation framework, either common control programmes818 as well as specific control and inspection programmes can be implemented.

The latter are determined by the EC in cooperation with the concerned MS for certain fisheries. They must specify the applicable objectives, priorities and legal proceedings, as well as the reference standards of inspection activities. MS concerned must adopt the necessary measures to guaran-tee the implementation of the specific control and inspection programme, particularly with respect to human means and necessary materials, periods and areas in which these resources must be deployed819. So far, the following specific control and inspection programmes have been approved:

� Commission Implementing Decision of 19 March 2014 establishing a specific control and inspection programme for fisheries exploiting stocks of bluefin tuna in the Eastern Atlan-tic and the Mediterranean, swordfish in the Mediterranean and for fisheries exploiting stocks of sardines and anchovies in the Northern Adriatic Sea820.

� Commission Implementing Decision of 25 June 2013 establishing a specific control and inspection programme for fisheries exploiting cod, plaice and sole in the Kattegat, the North Sea, the Skagerrak, the eastern Channel, the waters west of Scotland and the Irish Sea821.

� Commission Implementing Decision of 21 June 2013 establishing a specific control and inspection programme for fisheries exploiting cod, herring, salmon and sprat in the Baltic Sea822.

� Commission Implementing Decision of 19 December 2012 establishing a specific con-trol and inspection programme for pelagic fisheries in Western Waters of the North East Atlantic823.

816 2013 MAGRAMA Annual Report on Activities.817 The Technical Control Group was created in the framework of an Action Plan to rectify the deficiencies found in the Spanish fisheries control system, established by the Commission Implementing Decision of 30 July 2012.818 According to what established in Article 94.1 of the Fisheries Control Regulation, the common control programmes may be carried out by own initiative and between MS, in relation to control, inspection and surveillance of fisheries activities. For instance, in 2013 Spain participated together with France, Ireland and the United Kingdom in the Common Control Programme for the South West Area. The operation took place in EU waters as well as in the EEZ of Spain, France, United Kingdom and Ireland. During the development of the operation an overall of 35 sightings and 20 inspections took place, resulting in the detection of 3 suspected infringements. Source: 2013 MAGRAMA Annual Report.819 Art. 95, Fisheries Control Regulation.820 OJ L 85, of 21.03.2014, p. 15.821 OJ L 175, of 27.06.2013, p. 61.822 OJ L 170, of 22.06.2013, p. 66.823 OJ L 350, of 20.12.2012, p. 99–108.


� Commission Implementing Decision of 29 March 2011 establishing a specific control and inspection programme related to the recovery of blue-fin tuna in the eastern Atlantic and the Mediterranean824.

2.8.1. conducT of inspecTions

RD 176/2003 regulates the functions of control and inspection in external waters, which are under competency of the AGE825.

In relation to management of the fisheries sector and marketing, it will be the AA.CC that are com-petent for establishing the corresponding regulations, in accordance with provisions set in Article 111 of Law 3/2001, which enables them to perform inspection functions on these matters826.

In accordance with EU regulations, each MMS will draw up a list of fisheries inspectors who will be in charge of carrying out surveillance, control and inspection over fishing activities827. In the Span-ish case, the AGE has a total of 98 fisheries inspectors, distributed in fourteen fisheries inspection headquarters, while the AA.CC has a total of 241 fisheries inspectors828.

Inspectors hold the condition of “authority officials” while performing their functions829 and must always be duly accredited with an identity card showing their identification and office830.

In line with European legislation831, inspectors conducting their functions in external waters may adopt the necessary control measures to guarantee compliance with the CFP rules, either at sea, docks or in port832, before the first sale, or before their transport in case of products not sold at the auction centre located at the landing port833.

In order to carry out inspection correctly, during the performance of their duties, inspectors may request assistance from the necessary staff (including those in the crew of the inspected vessel), equipment, or materials and from the State Security Forces and AA.CC bodies and policemen834.

824 OJ L 87, of 02.04.2011, p. 9. This Decision has been amended later on, last time through the Implementing Decision of 13 August 2013 (OJ L 219, of 15.08.2013, p. 33).825 Art.1, RD 176/2013.826 Art. 111 of Law 3/2001 states that: “1. The inspection function of the AA.CC within the management of the fisheries sector will start from the moment of landing or unloading of catches in the terms established by the applicable legislation. 2. The inspection function of the AA.CC within the marketing of fisheries products, regardless of their origin, will start after the first sale in auction centres of ports or from the first sale when such products are not sold for the first time in said auction centres”. 827 Art. 74.1, Fisheries Control Regulation.828 Version 1.1 of the 2014-2020 EMFF Operational Programme for Spain, p. 165.829 Art. 38.1, Law 3/2011and Art. 2.2, RD 176/2003.830 Art. 32 Law 3/2001 in accordance with article 97.1 of the Implementing Regulation. The model fisheries inspector card is regulated through Resolution issued on 22 September 2003 of the General Directorate for Fisheries Resources establishing the card model of fisheries inspector (BOE No. 253, of 22.10.2003).831 Art. 74.2, Fisheries Control Regulation states that “Officials shall carry out their duties in accordance with Community law. They shall conduct inspections in a non-discriminatory manner at sea, in ports, during transport, on processing premises and during the marketing of the fisheries products”.832 Art. 39.2, Law 3/2001.833 Art. 39.3, Ibid.834 Art. 4, RD 176/2003.


Table 37: SCOPE OF THE INSPECTION ACTIVITY IN EXTERNAL WATERS835 836 837 838 839 840 841

At sea

� Waters under Spanish jurisdiction or sovereignty835: - Spanish, EU Members and third country fishing vessels. - Transhipments by EU or third countries fishing vessels. - Transhipments in which a Spanish fishing vessel participates. - Any other fishing activity.

� EU waters outside the sovereignty or jurisdiction of an EU Member State: - Any EU fishing vessel under the condition that EU requirements are met836. - Any Spanish fishing vessel. - Transhipment operation in which a Spanish fishing vessel participates837.

� In international waters838: - Any EU fishing vessel. - Transhipment operation in which a Spanish fishing vessel participates.

� In any third country waters839: - Any EU fishing vessel. - Transhipment operation in which a Spanish fishing vessel participates.

� RFMO waters if that is foreseen in the specific RFMO convention or rules or if that is an obligation derived from the application of international treaties, conventions and agreements on fisheries840.

In-land841

� On loading platforms and ports: - Fishing gears and catches after their landing, before their first sale or before

being transported, in cases where fisheries products are not sold in the land-ing fish auction.

- Processing operations on board. � In warehouse, fish auctions and other establishments and places in which fisheries

products are deposited or discharged: - Before their first sale. - Before their transportation in case the fisheries products are not sold in the

fish auction of the landing port. - Imported fisheries products, landed or discharged.


Functions assigned to inspectors in matters corresponding to the scope of jurisdiction of AA.CC are regulated differently depending on the AC:

835 Article 3, paras a), b) and e), Ibid.836 See section 2.9 of this document.837 Article 3. d), RD 176/2003.838 See section 2.9 of this document.839 Ibid.840 Article 3.2. c), RD 176/2003.841 Article 3.2, paras. f) y g), Ibid.


Table 38: INSPECTION FUNCTIONS IN THE AA.CC842 843 844 845

Valencian Community842

� Surveillance and inspection, within the scope of competence of the Valencian Community, of vessels, activities and establishments related to fisheries, shellfish-ing and aquaculture; and concerning markets and establishments for processing, marketing and consumption of the products.

� The inspection of vehicles destined to the transport of fish, shellfish or other sea-food products, where inspectors are entitled to order the detention of vehicles.

Murcia843

� The surveillance and inspection of vessels, activities and establishments related to professional and recreational fisheries, shell-fishing and aquaculture; as well as markets, establishments for processing, marketing and consumption of products.

� The inspection of vehicles destined to the transport of fish, shellfish or other sea-food products, where inspector are entitled to order the detention of vehicles.

Balearic Islands844

� The surveillance and inspection of vessels, activities and establishments related to professional and recreational fisheries, shell-fishing and aquaculture; as well as markets, establishments for processing, marketing and consumption of products, without prejudice to the competences affecting other public bodies, especially those concerning health care protection.

� The inspection of vehicles for fisheries transport, where inspector are entitled to order the detention of vehicles Inspectors of maritime fisheries, since the moment they get knowledge about the commission of an infringement, may adopt the nec-essary provisional measures in accordance with Art. 144 of this law.

� Inspections function within the management of the fisheries sector. � Inspection functions concerning sanitation in primary production of fishery prod-

ucts before their first sale, without prejudice to the competences affecting other public bodies.

� Inspectional functions within the marketing of fishery products, regardless of their origin, which shall start after their first sale in auction centres or other authorized establishments, or from their first sale when these products have not been sold for the first time in such auction centres.

Cataluña845

� Freely access vessels, auxiliary vessels and other boats, to establishments of the fisheries sector, shellfish and marine aquaculture establishments, fish auction cen-tres or other facilities attached to these establishments and, in general, to any place where fisheries resources are extracted, produced, stored, distributed, com-mercialized and served.

� Access to immersion centres, nautical schools and academies and, in general, to all corresponding establishments based on the competencies assigned to the General Directorate for Fisheries and Maritime Affairs of the Department of Agricul-ture, Livestock and Fisheries of the Generalitat de Cataluña.

� Access to administrative, industrial and commercial documents, and to any other type related to physical and legal persons being the object of an inspection, and to their activities, which shall be in any case confidential.

842 1st Additional Provision, Maritime Fisheries Law 9/1998 of the Valencian Community.843 Art. 94.3, Maritime Fisheries and Aquaculture Law 2/2007 of the Region of Murcia.844 Art. 97.3, Maritime Fisheries, Shell-fishing and Aquaculture Law 6/2013 of the Balearic Islands.845 Art. 13.2, Decree 197/2003 of 26 August, regulating the inspection functions of activities under competency of the General Director-ate for Fisheries and Maritime Affairs (DOGC of 5.09.2003).


846 847 848 849 Continuation

� To require all the necessary information to clarify the facts being object of an inspection.

� To order the vessel’s master, from the moment of the suspected infringement was committed, and in the cases provided by regulations; to detain them and if nec-essary, to drive him to port once the necessary insurance measures have been adopted to prevent the destruction or deterioration of evidence.

� To order the master of the fishing or shell-fishing vessel who has been accused for non-compliance with the technical protection and conservation measures for fishery resources, to set sail immediately to open sea to return the illegal seizure catches if the inspection takes place at port and if the vessel is docked. The mini-mal distance to the coast from the returning point should not be less than 3 miles, and could be increased under criteria of the authorised staff to avoid the arrival of the catches returned to the Catalan coast.

� To leave on deposit the officially seized products to the person who is being object of an inspection.

Canary Islands846

� Access within the exercise of their inspection functions, without any kind of prior authorization to any type of recreational or professional fishing vessels founded in waters or ports of the Canary Islands, as well as to all kind of in-land fisheries establishments, registers and documents related to the fishing activity or to the obtained catches, their storage, conservation, ownership, distribution, marketing and consumption. Inspectors shall reflect these situations in inspection minutes together with the circumstances and the results of the inspection.

Galicia847

� Access to industries and establishments developing activities defined in this Arti-cle, as well as to vessels and floating hatcheries and vehicles for the transport of fisheries products.

Andalucía848

� Access to industries and establishments developing activities regulated by this law, particularly the following : - Floating vessels and devices. - Port facilities. - Industries for vessels construction, repairing and maintenance, and their mate-

rials, equipment and facilities for naval provisioning fishing gear and nets. - Aquaculture establishments. - Marketing establishments of origin and destination of fisheries products. - Vehicles and other ways of transporting fisheries products.

Cantabria849

� Access to vessels, points for first sale, aquaculture establishments and other establishments for processing, marketing and consumption of maritime products, subject to their identification and provided that these places do not entail private homes.


Officials, when carrying out inspection functions, should focus on the guidelines of the Fisheries Inspection Plan (FIP), which is annually elaborated by the SGCI850. The FIP, which is drawn up in 846 Art. 65.1, Fisheries Law 17/2003 of Canary Islands.847 Art. 3.3, of Law 2/2004, on the creation of the Coastguard Service of Galicia (DOG 78 of 23.04.2004).848 Art. 88.1, Law 1/2002 on planning, promotion and control of Maritime Fisheries, Shellfishing and Maritime Aquaculture in Andalusia.849 Art. 5, Decree 91/1998 on the regulation of the inspection and surveillance service on Fisheries, Aquaculture and Shell-fishing of Cantabria.850 Art. 8, RD 176/2003. This article recognizes the DGFAR as the responsible in relation to control and inspection matters, but after the ministerial restructuration these competences fall within the SGCI.


accordance with the national control programmes provided in Article 46 of the Fisheries Control Regulation, will set the annual inspection objectives on the basis of the most common infringe-ments at any time which have major impacts on fishery resources851. Likewise, special plans may be adopted in the framework of the FIP, between the SGCI and the AA.CC to coordinate inspection actions between State and regional inspectors852.

Prior to conduct an inspection, and in accordance with the provisions of the Implementing Regu-lation853, the officials must carry out actions directed to collect all the information available to get to know better the fishing activity of vessels subject to be inspected. Officials may collect all the information originating from:

Fishing permits and authorizations.

� Data from the VMS corresponding to the actual fishing trip854.

� Aerial surveillance and other sightings.

� Previous inspection registers and available information in the secure part of the website of the flag MS in relation to the fishing vessel concerned.

At the time of conducting an inspection, either the agents855 as well as the competent authorities which have designed the former856 will have to comply with the obligations provided in EU regula-tions.

The areas in which inspectors can carry out their activities are reflected in both the EU and the Spanish regulations, although there are some differences:

851 Article 98.2 of the Implementing Regulation provides that “Member States shall coordinate their control, inspection and enforcement activities. To this end, they shall adopt and execute national control action programmes as referred to in Article 46 of the Control Regu-lation and common control programmes as referred to in Article 94 of the Control Regulation covering both activities at sea and on land as necessary to ensure compliance with the rules of the Common Fisheries Policy”.852 Art. 8.3, RD 176/2003.853 Article 99, Implementing Regulation.854 In Spain, this has been provided through the Consola Web of the FMC. Through it, the fisheries inspection staff can have in real time the location data of every vessels integrated in the satellite tracking device VMS in their scope of action. This allows them to know better the fishing activity on the area, the optimal programme for surveillance activities at ports and fishing grounds, as well as the verification of declared data in fishing logbooks. Source: 2013 MAGRAMA Annual Report.855 Article 100, Implementing Regulation states “1 Officials authorised to conduct inspections shall verify and note the relevant items defined in the appropriate inspection module of the inspection report in Annex XXVII. For this purpose they may take pictures, video and audio recordings in accordance with national law, and, where appropriate, samples. 2. Officials shall not interfere with the right of any operator to communicate with the competent flag state authorities during inspection operations. 3. Officials shall take into account any information provided in accordance with Article 95(2) of this Regulation by a control observer on board the fishing vessel to be inspect-ed. 4. On completion of an inspection officials shall debrief operators as appropriate on fisheries regulations relevant to the prevailing circumstances. 5. Officials shall leave as soon as possible the fishing vessel or the inspected premise following the completion of the inspection if no evidence of an apparent infringement is detected. 856 Article 101, Ibid. states: “1. The competent authorities of Member States, and, where appropriate, the Commission and the European Fisheries Control Agency, shall ensure that their officials, whilst being courteous and sensitive, conduct inspections professionally and to a high standard. 2. The competent authorities of each Member State shall establish procedures to ensure that any complaint made by operators regarding the conduct of inspections carried out by their officials is investigated in a fair and thorough manner in accordance with national law. 3. Coastal Member States may, subject to appropriate arrangements with the flag Member State of a fishing vessel, invite officials of the competent authorities of that Member State to participate in inspections of fishing vessels of that Member State, whilst those vessels are operating in waters of the coastal Member State or landing in its ports”.


Table 39: SCOPE OF CONTROL OF THE INSPECTION ACTIVITY 857 858

Fisheries Control Regulation857 RD 176/2003858

Officials shall check in particular:a. The legality of the catch kept on board, stored,

transported, processed or marketed and the accuracy of the documentations or electronic transmissions relating to it;

b. the legality of the fishing gear used for the targeted species and for the catches kept on board;

c. if appropriate, the stowage plan and the sep-arate stowage of species;

d. the marking of gears; ande. the information on the engine referred to in

Article 40.

The aim of the control and inspection activities will be carried out in relation to:a. Permits and fishing authorizations.b. Fishing gear and tools.c. The geographical area where the inspection

takes place.d. VMS by satellite-tracking devices (blue box-

es).e. Fishing logbooks, landing declarations and

transhipment and all those books and docu-ments where the fishing activity is registered, with verifications of their content included.

f. Fishery products, included those subject to import with regard to provisions set in the additional provision No 4 of Law 3/2001.

g. The general undertaking of the fishing activity.


Although RD 176/2003 does not expressly regulate the obligation to inspect the stow plan and the separate stowage of different species, this obligation shall be understood as included in the Span-ish legal system, in particular in its article 3.3. g) taking into account that this legal instrument was approved before the entry into force of the Fisheries Control Regulation which is directly applicable.

Inspections concerning information on engines are not regulated in RD 176/2003, given that inspec-tions within the management of the fisheries sector fall within the competence of the AA.CC.

Agents must conduct inspections in an objective manner, preventing the disturbance or inconven-ience of the vessel or transport vehicle and its activities, such as storing, processing and marketing 857 Art. 74.3, Fisheries Control Regulation.858 Art. 3.3, RD 176/2003.

Illustration 15:

Inspection of fish-ing gearSource: Ardomendi carrying out a fish-eries inspection https://www.flickr.com/photos/armadamde/11336295494


of catches. They shall, as far as possible, prevent any degradation of the catch during the inspec-tion859. To carry out their functions, MS shall confer them a number of attributions in the framework of Article 74.4 of the Fisheries Control Regulation860.

In this regard, Law 3/200120012001 in general envisages the access by inspectors to “all plac-es, registers and documents” when conducting their functions861, while RD 176/2003 provides an exhaustive list of inspection functions, as follows862:

a) Access, prior identification to vessels, ports, warehouses and other installations, places and points for first sales.

b) To halt vessels to be inspected, order the adoption of all necessary measures to facili-tate the boarding of inspectors and their auxiliaries, as well as the presence of the of the master or owner of the vessels subject to inspection or any other person on board, being obliged to facilitate the inspection.

c) To conduct evidence, investigations and convenient exams to ensure compliance with current legal provisions concerning maritime fisheries.

d) To keep and retain documents related to infringements and make copies of them, if the inspection ends with an infringement report.

e) To request whatever documents and registers are in custody or possession, referring to catches, landings, transhipments, disposal, sale or transfers of said fishery products.

f) To halt the landing or unloading activities of any means of transport when there is evi-dence that those activities do not comply with the applicable legal requirements.

g) To carry out controls and inspections from aircrafts using on-board systems, over fishing vessels transporting fishery products in Spanish waters and over Spanish vessels wher-ever they are, and communicating the necessary measures necessary to restore legality through appropriate technology to the masters or owners of the vessels.

h) To adopt, according to article 7, the necessary provisional measures863 to ensure the effectiveness of the resolution that might be adopted, the good end of the proceeding, avoid maintenance of the effects of the breach, and guaranteeing the protection of the general interest.

In this line, the AA.CC in accordance with the European and national legislation, recognizes that officials engaged in inspections have the power to access the places and elements necessary to comply with the exercise of their functions864.859 Art. 74.5, Fisheries Control Regulation.860 Art. 74.4, Ibid states: “Officials may examine all relevant areas, decks and rooms. They may also examine catches, processed or not, nets or other gear, equipment, containers and packages containing fish or fisheries products and any relevant documents or electronic transmissions which they deem necessary to verify compliance with the rules of the common fisheries policy. They may also question persons deemed to have information on the matter that is the subject of the inspection.”.861 Art. 38.2, Law 3/2001.862 Art. 4.1, RD 176/2003.863 Article 7, Ibid allows fisheries inspectors to adopt provisional measures from the moment they detect a suspected infringement, including the detention of the vessel and its deviation to port in case of serious or very serious infringements.864 Art. 120, Law 2/2010 of 18 February on Fisheries and Maritime Action of Cataluña, Art. 88, Law 1/2002, of 4 April, on the planning, promotion and control of Maritime Fisheries, Shellfishing and Aqualculture of Andalucia and Art. 94.1, Law 2/2007, of 12 March, on


Apart from complying with the requirements established RD 176/2003 or in the regional legislation, the inspections conducted shall comply with the requirements contained in the Implementing Reg-ulation, based on the context where they are carried out or the element subject to inspection:

Table 40: INSPECTION PROCEEDINGS DEPENDING ON THE PLACE OF INSPECTION865 866 867 868 869 870

Inspections at sea865

� A boarding craft used to facilitate the transfer of officials carrying out inspections shall fly a similar flag or pennant of a size appropriate866. Moreover, they shall have due regard to the rules of seamanship and manoeuvre at a safe distance from the fishing vessel subject to an inspection.

� The inspection will usually be carried out by two officials and won’t last more than four hours. That period may be prolonged in certain cases867, including when a suspected infringement is detected 868.

� Among the measures taken by officials, those may require the master to haul fish-ing gear for inspection.

Inspections in port869

� Inspections in port will be carried out: - In a routine way. - In a random way. - When an infringement of the PPC rules is suspected, where officials shall

receive the vessel concerned at its arrival to port. � They will be subject to an inspection:

- Installations used according to the fisheries activities and the later transfor-mation of the fishing products.

- Transhipment and landing proceedings870.

Maritime Fisheries and Aqualculture of the Region of Murcia. 865 Articles 102-104 EU, Implementing Regulation.866 To visualize the type of flag used by inspectors in EU waters, please check on http://www.crwflags.com/fotw/flags/int-fish.htm-l#cieuw.867 Article 104.4, Implementing Regulation provides that “(…) The duration of an inspection shall not exceed 4 hours, or until the net is hauled in, and the net and catches are inspected, whichever is longer. (…)”.868 Article 104.5, Ibid. states “In the case of an apparent infringement being detected, identification marks and seals may be affixed securely to any part of the fishing gear or the fishing vessel, including containers of fisheries products and the compartment(s) in which they may be stowed, and the official(s) may remain on board for the time necessary for the completion of appropriate measures to ensure security and continuity of all the evidence of the apparent infringement.”.869 Articles 105-107, Ibid.870 Article 106.2, Ibid. states “(…) A cross-check shall be carried out between the quantities by species recorded in the prior notifica-tion of arrival to land fishery products, the quantities by species recorded in the fishing logbook and the quantities by species landed or transhipped whichever is applicable (…)”. For landings of herring, mackerel and horse mackerel “(…) the competent authorities of a Member State shall ensure that at least 15% of the quantities of this fish landed and at least 10 % of the landings of this fish are inspect-ed”, in accordance with Article 107, Ibid.

http://www.crwflags.com/fotw/flags/int-fish.html#cieuw

http://www.crwflags.com/fotw/flags/int-fish.html#cieuw



Transport inspections871

� They may take place anywhere and at anytime from the point of landing to the arrival of the fisheries products at the place of sale or processing.

� The inspections will include: - Necessary measures to guarantee the maintenance of the cold chain of the

fisheries products inspected. - A Physical examination of the products transported, when possible872. - A verification that the quantities of fisheries products transported correspond

to the data indicated at the transport document. - The possibility of sealing the inspected vehicle or container, to avoid manip-

ulations of the cargo873.

Market inspections874

� Officials may inspect cold stores, gross and retail markets, restaurants and any other premises where fish is stored and/or sold after landing has taken place.


2.8.2. duTies of The operaTor

At the time of carrying out inspections, the persons responsible for the fishing vessels, products or installations, which are subject to inspection, will cooperate with officials in order to facilitate the inspection activities875. In particular, they must provide them with secure access to the vessel, 871 Arts. 108 and 109, Ibid.872 Article 108.3, Ibid. specifies that “The physical examination of the transported fishery products shall involve the taking of a sample representative of the different sections of the lot or lots transported”.873 Article 109, Ibid. states: “1. When a vehicle or a container has been sealed to avoid manipulation of the cargo, competent authorities of Member States shall ensure that serial numbers of seals are noted on the transport document. Officials shall inspect that the seals are intact and that the serial numbers correspond with the details on the transport document. 2. Where seals are removed to facilitate inspection of the cargo before the cargo arrives at the final destination, officials shall replace the original seal with a fresh seal, recording the seal details in the transport document and the reasons for the removal of the original seal”.874 Articles 110-112, Ibid.875 Article 38.3, Law 3/2001 and article 9, RD 176/2003.

Illustration 16:

Inspection at seaSource: Tarifa vessel ending the campaign of the Mediterranean nationa fishing ground http://plade-semapesga.com/Article45977.phtml


transport vehicle or place where fisheries products are stored, processed or marketed. The safety of officials must be guaranteed, and operators must not obstruct, intimidate or interfere with the officials in the performance of their duties876.

The Implementing Regulation regulates a series of obligations for operators subject to inspection, and establishes others for the master of the fishing vessel:

Table 41: OBLIGATION DURING INSPECTION PHASE877 878 879 880

General obligations of operators877Obligations of the master or its representatives

during inspections878

� Facilitate and provide officials on request with the necessary information and documents, including, where possible, copies thereof, or access to relevant databases, regarding fishing activities as required to be completed and held in electronic or paper format in accordance with the rules of the CFP.

� Facilitate access to all parts of vessels, premis-es and any transport means, including aircraft and hovercraft used in connection or associat-ed with fishing and processing activities.

� Ensure at any moment the safety of officials, and actively assist and cooperate with the officials in the performance of their inspection duties.

� Not obstruct, intimidate or interfere, not cause any other person to obstruct, intimidate or inter-fere, and prevent any other person to obstruct, intimidate or interfere with officials carrying out the inspection.

� Provide, where possible, a meeting facility in isolation for a briefing of officials by a control observer879.

� Facilitate safe and effective boarding of officials in accordance with good seamanship when the appropriate signal of the International Code of Signals is given or when the intention to board is established through radio communication by a vessel or helicopter carrying an official185.

� Provide a boarding ladder meeting the require-ments of Annex XXIX to facilitate safe and convenient access to any vessel which requires a climb of 1,5 metres or more.

� Facilitate the officials to perform their inspection duties, providing such assistance as is request-ed and is reasonable.

� Permit the official(s) to communicate with the authorities of the flag State, the coastal State and the inspecting State.

� Alert officials to particular safety hazards on board fishing vessels.

� Provide access by officials to all areas of the vessel, all processed or unprocessed catches, all fishing gears and all relevant information and documents.

� Facilitate safe disembarkation by officials on completion of the inspection.


Although Spanish Law states the obligation of operators to cooperate, it does not specify the functions to be conducted, merely detailing that “they must cooperate with the inspection staff in the exercise of their duties and contribute the required documentation to facilitate the inspection work”881. In cases of non compliance or obstruction of the inspections work, the operator is in risk

876 Article 75.1, Fisheries Control Regulation. 877 Article 113.2, Implementing Regulation.878 Article 114.1, Ibid.879 Article 95.2, of the Implementing Regulation provides that: “Control observers on board an EU fishing vessel shall, where appropri-ate, brief the officials who are about to proceed to an inspection of that fishing vessel upon arrival on board. If the facilities on board the EU fishing vessel so allow and where appropriate the brief shall take place in a closed meeting.”.880 Article 114.1 b), Ibid states that they shall “Provide a boarding ladder meeting the requirements of Annex XXIX to facilitate safe and convenient access to any vessel which requires a climb of 1,5 metres or more”.881 Art 9.1, RD 176/2003.


of being sanctioned882. However, they are obliged to comply with the obligations provided in the Fisheries Control Regulation and in the Implementing Regulation.

The AA.CC legislation states, in line with the EU and State legislation, the obligation of operators to facilitate access to facilities and establishments where inspections may be carried out, and the obligation to cooperate with officials if they request information which is necessary to verify the compliance with fisheries rules883.

2.8.3. The inspecTion reporT

Each time an inspection is conducted, Spanish officials, as well as those from other MS, shall draw up884 an inspection minute after the completion of each inspection and forward it, preferably through electronic means885, to the SGCI. This inspection report886 must include, among other things887:

� Identification of the vessel, master, owner or any other person who manages the fishing operations.

� Geographical coordinates of the vessel location.

� Identity of the official and actions taken in the exercise of his functions.

Despite RD 176/2003 only requires drawing up an inspection minute when an infringement has been detected, Article 38.2 of Law 3/2001 requires inspectors to take an inspection minute while implementing their functions where they shall record “all the circumstances and the results of their actions”. Although there exists a contradiction between both legal instruments, since Law 3/2001 has a higher hierarchy in the legal system it prevails. Therefore, the obligation to take an inspection minute shall be implemented every time an inspection takes place, in accordance with the EU reg-ulations.

If the inspection has taken place on a fishing vessel of another MS or in a third country or in waters of a another MS, but an infringement is detected, the agent shall send a copy of the inspection minute as soon as possible to the competent authorities of the concerned MS or the third country888.

Once the inspection is completed, officials shall record it in the fishing logbook of the vessel con-cerned and communicate their findings resulting from the inspection to the operator, so he/she can provide comments in relation to the inspection and its results. All the comments provided by the operator shall be reflected in the inspection minute889, which should be signed by both the operator

882 Art. 38.3, Law 3/2001.883 Art. 118.3, Law 2/2010 of 18 February on Fisheries and Maritime Action of Cataluña, Additional Provision 1º, Law 9/1998 of 15 De-cember on Maritime Fisheries of the Valencian Community, Art. 65 of Law 17/2003 of 10 April, on Fisheries of Canarias, Art. 88.4 of Law 1/2001 of 4 April on planning, promotion and control of Maritime Fisheries, Shellfishing and Marine Aquaculture of Andalucia, Art. 94.2, Law 2/2007 of 12 March on Maritime Fisheries and Aquaculture of the Region of Murcia and Art. 97.2, Law 6/2013 of 7 November on Maritime Fisheries, Shellfishing and Aquaculture of the Balearic Islands. 884 According to Article 115 of the Implementing Regulation: “The reports shall be completed by officials during the inspection or as soon as possible after the completion of the inspection”. 885 Even though article 76.1 of the Fisheries Control Regulation states that “(…) this report shall be recorded and transmitted by electron-ic means (…)”, Article 116 of the Implementing Regulation requires the completion of the inspection reports in paper format.886 Article 76.1, Fisheries Control Regulation.887 Art. 6.1, RD 176/2003 in relation to Annex XXVII of the Implementing Regulation, which sets the minimum necessary content to com-plete an inspection report.888 Article 76.1, Fisheries Control Regulation.889 Art. 76.2, Ibid.


and the inspector890. In addition, EU regulations require sending a copy of the inspection minute as soon as possible to the operator at the latest within 15 working days after the completion of the inspection891.

Although RD 176/2003 only expressly regulates the obligation to send a copy of the inspection minute to the master of the vessel or the representative company, and in case it is not possible, to indicate the justifying reasons in the minute892. EU Regulations are directly applicable and, there-fore, legally binding.

All the inspection and surveillance reports will have evidential value within administrative or judicial proceedings of any MS893. This aspect is already reflected by both the national894 and AA.CC895 regulations.

2.8.3.1. Electronic database

Pursuant with Article 78.1 of the Fisheries Control Regulation896, Spain has a web system called Fishing Surveillance Network (REVIPES) whereby fisheries inspectors record at the end of each inspection, both the inspection minutes taken and the activity carried out after each working day.

The REVIPES, is designed to optimize the work of inspectors as well as of the Navy and the Civil Guard in inspection and surveillance fisheries operations, resulting in a database with three fea-tures897:

� Database of inspection and vessel activities.

� Database of surveillance, patrol and aircraft activities.

� Database for the management of fisheries inspectors activities from an employment point of view.

This data shall be kept available at the database for at least 3 years and shall also be accessible to other MS in the context of a joint deployment plan898.

890 Art. 116.2, Implementing Regulation states: “The operator shall be invited to sign the report (…) his/her signature shall constitute an acknowledgement of the report and shall not be regarded as an acceptance of the contents therein.”.891 Art. 76.3, Fisheries Control Regulation.892 Art. 6.1 RD 176/2003.893 Art. 77, Fisheries Control Regulation.894 Art. 6.3, RD 176/2003 states that “the taken minute and the inspector’s report referred to in the previous paragraphs will have eviden-tial value of the facts contained therein, notwithstanding the results of the previous actions carried out in each case and the evidences presented by the individuals on the defense of their rights and interests”. 895 Art. 118.2, Law 2/2010, of 18 February on Fisheries and Maritime Action of Cataluña, Art. 89.1, Law 1/2001 of 4 April on planning, promotion and control of Maritime Fisheries, Shellfishing and Marine Aquaculture of Andalucia, Art. 93.2, Law 2/2007 of 12 March on Maritime Fisheries and Aquaculture of the Region of Murcia y Art. 96.2, Law 6/2013 of 7 November on Maritime Fisheries, Shellfishing and Aquaculture of the Balearic Islands. 896 This Article states that “Member States shall set up and keep up to date an electronic database where they upload all inspection and surveillance reports drawn up by their officials”.897 2013 MAGRAMA Annual Report on Activities.898 Art. 118.2, Implementing Regulation.


2.8.4. communiTy inspecTors

In addition to the inspectors designed by MS, the European law regulates the existence of EU inspectors899. The list of the EU inspectors will be adopted by the EC taking into account the agents proposed by MS and the EFCA900.

Pursuant to the Implementing Regulation, by October of each year at the latest, both MS and the EFCA shall notify the EC of any amendment intended to be introduced in the proposed list901. Nowadays, the list of EU inspectors in force is the one adopted by the Commission Implementing Decision (EU) 2015/645 of 20 April 2015 establishing the list of Union inspectors who may carry out inspections pursuant to Council Regulation (EC) No 1224/2009902.

EU inspectors must meet the requirements set in Article 119 of the Implementing Regulation903 and may be assigned to904:

a) The implementation of specific control and inspection programmes adopted in accord-ance with Article 95;

b) International fisheries control programs, where the EU is required to conduct controls905.

In order to carry out their functions, EU inspectors are granted with a number of powers and obli-gations, notwithstanding the obligation of MS to facilitate their tasks and provide them with the necessary assistance906.

899 Art. 4.7, Fisheries Control Regulation.900 Arts. 119.1, Implementing Regulation in relation to Art. 120.1.901 Arts 120.3 and 121, Ibid state that this list and their amendments shall be published in the official website of the EFCA, notwithstand-ing if it is communicated to each regional fisheries management organization the list of inspectors willing to carry out inspections within the framework of the organization in question.902 OJ L 106, of 24.04.2015, p. 31.903 Art. 119.2 states that: “Officials to be included in the list shall: a) have a thorough experience in the field of fisheries control and inspection; b) have an in-depth knowledge of fisheries legislation of the European Union; c) have a thorough knowledge of one of the official languages of the European Union and a satisfactory knowledge of a second; d) be physically fit to perform their duties; e) have, where appropriate, received the necessary training with regard the safety at sea.”904 Art. 79.3, Fisheries Control Organization.905 The implementation of the programmes aims to develop the international obligations relating to control and surveillance to which the EU is subject to. This is established in the Preliminary of the Council Regulation (EC) No 768/2005 of 26 April 2005 establishing a Com-munity Fisheries Control Agency and amending Regulation (EEC) No 2847/93 establishing a control system applicable to the common fisheries policy.906 Art. 122.3, Implementing Regulation.


Table 42: ASSIGNMENTS AND OBLIGATIONS OF EU INSPECTORS907 908 909 910 911 912 913 914 915 916

Assignments

� To carry out inspections in EU waters. � To carry out inspections on EU fishing vessels outside European waters 907. � For the accomplishment of their tasks, European inspectors shall have access

to908: - all areas on board EU fishing vessels and any other vessels carrying out

fishing activities, public premises or places and means of transport subject to inspection;

- all the information and documents needed to carry out the intended inspec-tion909.

� They shall not have police or enforcement powers910. � To assist national inspectors in the conduction of the corresponding inspections

provided that Spanish competent authorities allow this assistance911.

Obligations

� To present an identification service card reflecting their positions every time that an inspection takes place912. When inspections take place in the EU territory, inspections shall be conducted in accordance with the EU legislation in force and the national law of the MS where the inspection is conducted913.

� When the inspection takes place outside EU waters, they shall be conducted in accordance with the law of the flag MS of the inspected vessel, as well as in line with relevant international law.

� Submit a daily summary on their inspection activities to914: - the competent authorities of the MS in whose waters the inspection took

place, if conducted in EU waters or, - the competent authorities of the flag MS of the inspected EU fishing vessel,

and the EFCA, if conducted outside EU waters. � They shall immediately submit a summary inspection report in case of detection

of an infringement in the course of an inspection to915: - the competent authorities of the coastal MS, if conducted within EU waters, - the competent authorities of the flag MS of the inspected vessel and to the

EFCA, if conducted outside EU waters. � To submit a copy of the full inspection report within 7 days following the date of

inspection to916:

907 Art. 79.2, Fisheries Control Regulation.908 Art. 79. 4 states that: “(…) Community inspectors shall have access without delay (…) to the same extent and under the same con-ditions as officials of the Member State in which the inspection takes place”.909 Art. 79.4 b), Fisheries Control Regulation.910 Art. 79.6, Ibid.911 Art. 122.4, Implementing Regulation.912 Art. 122. 2 provides that : “(…) For this purpose they shall be provided with an identification document issued by the Commission or the European Fisheries Control Agency stating their identity and capacity”.913 Art. 122.1, Implementing Regulation.914 Art. 123, Ibid, states that in the daily summary “(...) they should include the name and identification number of each fishing vessel or craft inspected and the type of inspection carried out (...)”.915 Art. 123.2, Ibid. This Article states that: “(…) such summarized inspection report shall specify at least the date and place of the in-spection, identification of the inspection platform, identification of the inspected target and type of infringement detected”.916 Art. 123.3, Ibid. The inspection report shall contain the relevant items listed in Annex XXVII of the Implementing Regulation. That is, the format is the same than that to be completed by the agents designated by MS.


917 Continuation

- the competent authorities of the flag State of the inspected fishing vessel, - the competent authorities of the MS in whose waters the inspection took

place, - the EFCA in case of detection of an infringement.

� To submit the daily summarize reports on activities and the inspection reports to the EC, upon request917.


Once the competent authorities of MS have received the inspection reports, they may take the necessary measures to ensure compliance with the CFP in case an infringement was detected918.

2.9. Inspections outside the waters of the inspecting Member State

Spanish authorities may inspect Spanish fishing vessels and vessels of other MS operating in waters outside the Spanish jurisdiction919.

Table 43: INSPECTIONS OF FISHING VESSELS BY SPANISH AUTHORITIES OUTSIDE THE WATERS OF THE INSPECTING MEMBER STATE920

920 921 922 923

EU waters not subject to the

jurisdiction of other MS

� Spanish vessels. � Fishing vessels of other MS, provided that:

- The coastal Member State has previously authorized it921. - A specific control and inspection program has been adopted 922.

International waters � Fishing vessels of other MS. � Spanish vessels923.

Third countries waters

� Spanish vessels. � Fishing vessels of other MS.


In line with the EU regulations, RD 176/2003 envisages in Article 3.2 bis the possibility of carrying 917 Art. 123.4, Ibid.918 Art. 124.2, Ibid. states that “The Member State that nominated the Union inspector or, where appropriate, the Commission or the European Fisheries Control Agency shall cooperate with the Member State acting on a report submitted by the Union inspector in order to facilitate judicial and administrative proceedings.” See section 2.12.1 of this document.919 “Waters under the sovereignty of a Member State” are understood as those which are outside the inland waters of the coastal Mem-ber State and outside of its territorial sea” Source: Churchill, R; y Owen, D; EC Common Fisheries Policy, Oxford EC Law Library, 2010, p. 220.920 Art. 80, Fisheries Control Regulation.921 According to article 81, Ibid: “Requests for authorisation of a Member State to carry out inspections on fishing vessels in Community waters outside waters under its sovereignty or jurisdiction, as referred to in Article 80(2)(a), shall be decided by the coastal Member State concerned within 12 hours of the time of the request or within an appropriate period where the reason for the request is a hot pursuit commenced in the waters of the inspecting Member State. 2. The requesting Member State shall be informed of the decision without delay. Decisions shall also be communicated to the Commission or the body designated by it. 3. Requests for authorisations shall only be refused, in whole or in part only to the extent necessary, for compelling reasons. Refusals and the reasons underlying them shall be sent without delay to the requesting Member State and to the Commission or the body designated by it”.922 Art. 9.5, Ibid.923 Article 3.2 b), RD 176/2003 establishes that: “Such surveillance, inspection and control functions of fishing activities will be carried out in (…) b) waters outside European fishing waters, (…) over Spanish fishing vessels (…)”.


out inspections outside Spanish waters “within the scope of cooperation and coordination of control and inspection fishing activities regulated in the Regulation (EU) No 1380/2013 of 11 December 2013 and other community legislation implementing it, or of that which replaces it”924.

The SGCI will be the Spanish competent authority aimed to coordinate this type of inspection activ-ities925.

2.10. Infringements detected during the conduction of inspections

Spanish law, in accordance with Article 82 of the Fisheries Control Regulation, provides for a num-ber of measures to be taken by inspector in case of detection of an action during the course of an inspection that may entail an infringement of the CFP rules:

� Record the suspected infringement in the inspection report926.

� To inform the natural or legal person suspected of having committed an infringement about the possibility of assigning a number of points927 in accordance to article 92 of the Fisheries Control Regulation.

� In Spain, RD 176/2003 is prior to the existence of the penalty point system, so that it does not provide any regulation about it. However, after the approval of RD 114/2013 of 15 February regarding the creation and regulation of the national register of serious infringements to the common fisheries policy, the establishment of application rules of the penalty point system, and updating the amount of sanctions foreseen in Law 3/2001, of 26 March, of State Maritime Fisheries (RD 114/2013)928, and taking into account that this obligation is directly applicable, it can be understood that it is being correctly applied.

� To transmit the inspection report without delay to the competent authorities for the start-ing of the sanctioning procedure, which will assess whether to initiate the procedure or not, in accordance with the content of the inspection minute929.

� To adopt, when appropriate, the provisional measures necessary930 to save the evidence conforming the suspected infringement, i.e.: the seizure of species caught or trans-shipped or imported being of a size or weight below the legal standards or being species whose capture is forbidden931; the seizure of all species, processed or not, caught with banned fishing gear or whose capture has taken place in prohibited areas or periods 932 and the seizure of prohibited fishing gear933, among others.

924 Article 80 of the Fisheries Control Regulation develops the obligations on cooperation and coordination of control and inspection activities foreseen in Regulation (EC) 2371/2002. This Regulation was replaced by the CFPR in 2013, which following this line, states in Article 36.2.b) that: “The control and implementation of the CFP will be based on: (…) b) cooperation and coordination between Member States, the Commission and the Agency”.925 Art. 80.5, Ibid.926 Article 6, RD 176/2003.927 See section 2.12.5 in this document.928 BOE Num 51, of 28.02.2013.929 Art. 20.1.e), RD 182/2015, of 13 March, approving the proceedings for the sanctioning regime over maritime fisheries in external waters. See section 2.12.1 of this document.930 See section 2.12.5 of this document.931 Article 7.3, RD 176/2003.932 Ibid.933 Art. 7.5, Ibid.


In case an infringement is detected during the conduction of an inspection outside Spanish waters, the EU regulations require the inspector MS to send immediately a brief inspection report to the competent authorities of the coastal MS where the inspection took place or to the flag State of the inspected vessel934. Furthermore, within 15 days following the conduction of the inspection, at the latest, a copy of the full inspection report shall be submitted to them935.

2.10.1. enhanced follow-up wiTh regard To cerTain serious infringemenTs

In cases where a fishing vessel is suspected of having committed one of the following serious infringements936, the flag MS or the coastal MS937 in whose waters a fishing vessel is suspected of having committed the infringement may, among other measures938, require the fishing vessel to proceed immediately to a port for a full investigation939.

� Failure to record catches of stocks subject to a multiannual plan of more than 500 kg or 10%, calculated as a percentage of the fishing logbook figures, whichever is the higher, or.

� Commit any of the serious infringements referred to in Article 42 of Regulation (EC) No 1005/2008940.

� Commit any of the serious infringements referred to in Article 90.1 of the Fisheries Control Regulation within one year of committing a first such serious infringement941.

� RD 176/2003 provides for the diversion of fishing vessels to port in case of serious or very serious infringements. It differs from EU regulations in the fact that it applies to all types of serious or very serious infringements established under Law 3/2001, and not only to those referred to in Article 84 of the Fisheries Control Regulation942.

2.11. Proceedings resulting from infringements detected during the conduction of inspections

After the conduction of an inspection, if an infringement to the CFP has been detected, the compe-tent authorities of the inspecting MS shall take the appropriate measures against the master of the vessel in question or against any other legal or natural person responsible for the infringement943.

934 Art. 83.1, Fisheries Control Regulation. 935 Art. 83.2, Ibid.936 Art. 84, Ibid.937 In case the coastal MS is the one initiating the investigation, it shall immediately inform the flag MS according to Article 84.2 Ibid.938 Article 84.1, Ibid refers to Chapter IX of IUU Regulation to regulate the measures that can be adopted in this case. Article 43 of the IUU Regulation foresees the following measures: a) the immediate cessation of fishing activities; b) the rerouting to port of the fishing vessel; c) the rerouting of the transport vehicle to another location for inspection; d) the ordering of a bond; e) the seizure of fishing gear, catches or fisheries products; f) the temporary immobilisation of the fishing vessel or transport vehicle concerned; g) the suspension of the fishing authorisation.939 In such cases, officials may remain on board a fishing vessel until a full investigation has been undertaken, in accordance with Article 84.3 of the Fisheries Control Regulation.940 See footnote No. 998 of this document.941 See section 2.12.1 of this document.942 Article 7.1, RD 176/2003 states that “maritime fisheries inspectors shall adopt since the moment they acknowledge the commission of a suspected infringement, the necessary provisionary measures including the capture of the vessel and its deviation to port, in the cases of serious or very serious infringements”.943 Article 85, Fisheries Control Regulation. See section 2.12 of this document.


These measures aim to deprive the offender of the economic benefits derived from their infringe-ment, as well as to discourage dissuade him/her from committing further infringements.

To reach these objectives, EU law944 foresees two cases in which it may be possible to transfer the competency in relation to the infringement proceeding, provided that this transfer guarantees the increasing of possibilities to achieve these objectives:

� The MS in the territory or waters in which the infringement has been discovered may transfer the proceeding relating to the infringement to the competent authorities of the flag MS, or to the MS of which the offender holds citizenship945.

� The flag MS of the fishing vessel may transfer the proceedings to the authorities of the inspector MS.

Inspection and Proceedings

In this regard, the Spanish legal system is in accordance with the European legislation. Although in some cases national law is more restrictive, in other cases, there exist incon-sistencies:

� In relation to the inspection report, there is a contradiction between the EU regula-tions and Law 3/2001 which require officials to draw up an inspection report in each one of their inspection actions reflecting the circumstances and results, and RD 176/2003, which only states the obligation to submit a report in case of detection of an infringement. Taking into account the legal hierarchy of rules, Law 3/2001 pre-vails over the RD. Thus, Spanish inspectors must draw up an inspection report not only in cases of infringement, but every time they perform their functions.

� In case it is suspected that certain serious or very serious infringements have been committed under the Fisheries Control Regulation, the latter foresees the obligation of the authorities of the flag MS or of the coastal MS to divert the vessel suspected of having committed the infringement to a port. However, RD 176/2003 provides for the possibility to adopt such measure if it is suspected that any infringement classified as serious or very serious has been committed, and the decision should be taken by the inspector agent.

2.12. Observance

In order to ensure the enforcement of the law946, one of the deterrent mechanisms consists on clas-sifying infringements and sanctions in the legal system.

The Fisheries Control Regulation requires MS to adopt appropriate measures against physical or legal persons suspected of having committed an infringement to the CFP rules. EU legislation establishes both measures directly applicable by MS and basic measures whose development corresponds to MS:

944 Article 86, Ibid.945 Article 88.1, Ibid.946 Article 4.26, Ibid defines “enforcement” as “any measures taken to ensure compliance with the rules of the common fisheries policy”.


� Adoption by MS of administrative or criminal proceedings according to their national legislation947,

� Imposition of sanctions and accompanying sanctions which are proportionate to the seri-ousness of the offense948,

� The possibility to impose fines which are proportional to the financial turnover of the legal person or the economic advantage achieved or expected to be achieved through the infringement949,

� Adoption of immediate enforcement measures950,

� Adoption of a penalty point system for serious infringements, in which points are assigned to the holder of the fishing license according to the infringement committed. The accu-mulation of points may lead to the suspension or definitive withdrawal of the fishing license951.

� Obligation to establish a national register of infringements where all infringements com-mitted by Spanish fishing vessels or by Spanish nationals will be registered, indicating the imposed sanctions and the number of points assigned952.

2.12.1. sancTioning procedure

The sanctioning regime concerning both maritime fisheries in external waters as well as the basic rules of the sanctioning regime within the management of the fishing sector and marketing of fishery products 953 are regulated in Title V of Law 3/2001. Later on, Law 33/2014 introduced a series of amendments, in order to adapt it to the European legislation.

This amendment of the sanctioning regime over maritime fisheries in external waters lead to the approval of RD 182/2015 of 13 March, approving the proceedings for the sanctioning regime over maritime fisheries in external waters954. This RD develops the sanctioning procedure concerning maritime fisheries in external waters, which will serve as supplementary law for the AA.CC in those matters under their exclusive competence, and replaced RD 747/2008 of 9 May 9, on the establish-ment of the sanctioning regime within maritime fisheries in external waters955.

Through this new regulation, a substantial amendment on the infringement and sanctions regime on fisheries at the Spanish legal system was introduced, with the aim of promoting an administra-tive action focused on control policies as a guarantee for the sustainability of fisheries resources in line with EU and international law. Moreover, this new regime introduces within the sanctioning procedure the provisions concerning the penalty point system to be assigned to holders of fishing licenses as a result of having committed a serious infringement. This point system is regulated under RD 114/2013.

947 Art. 89.1, Ibid.948 Art. 89.2, Ibid.949 Art. 89.3, Ibid.950 Art. 91, Ibid.951 Art. 92, Ibid.952 Art. 93, Ibid.953 Article 89.b) of Law 3/2001 states that “the legislative development and enforcement of this type of materials corresponds to the competent bodies of the AA.CC”.954 BOE No. 63, of 14.03.2015.955 BOE No. 129, of 28.05.2008.


The sanctioning procedure will be applicable to ion action or omission classified as an infringement in Chapter II of Title V of Law 3/2001 which is committed956:

� Within the Spanish territory or in external waters under Spanish jurisdiction.

� Outside the Spanish territory or maritime waters that are under Spanish jurisdiction by natural or legal persons on board Spanish national flag vessels or by means thereof.

� Outside the territory or waters under Spanish jurisdiction by natural or legal persons holding Spanish nationality:

- On board stateless vessels or vessels with no nationality;

- On board foreign flag vessels or by means of the same, provided that the flag State has not exercised its sanctioning power according to the regulation in force957.

� In the territory or maritime waters under Spanish jurisdiction, and being acts or omissions considered as IUU fishing, in accordance with the terms and conditions established in the EU and international law, even if they have been committed outside this scope, with-out prejudice of the nationality of the offenders and the flag vessel, provided that the flag State has not exercised its sanctioning power in accordance with the regulations in force.

At the time of classifying infringements as “serious”, MS shall have some discretion958, but in any case, shall be understood as serious infringements in accordance with Article 90 of the Fisheries Control Regulation, as follows:

� Those referred to in Article 42 of the IUU Regulation959.

� The non-transmission of the landing declaration or a sales note when the landing the catch has taken place in the port of a third country960.

� The manipulation of an engine with the aim of increasing its power beyond the maximum continuous engine power according to the engine certificate961.

� Failure to comply with the requirement to carry and maintain at the fishing vessel any catches of species covered by the landing obligation under Article 15 of the CFPR, unless the upload and maintenance on board and the landing of such catches are con-trary to the obligations or are subject to the exemption referred to in the CFP rules, in fisheries or in the fishing zones where such rules apply962.

The legal term applying for processing, resolution, and notification of the sanctioning procedure to the interested parties will be of six months in case or minor infringements and of nine months for serious or very serious ones. The latter without prejudice of the possibility for the extension or

956 Art. 90, Law 3/2001.957 Article 34.2, RD 182/2015, for the purposes of applying this procedure provides that “it is understood that the flag State does not exercise its sanctioning power when, within three months after the suspected infringement conduct is notified by official means, either does not respond by official means or does not carry out the necessary punitive actions”. 958 Response of Ms. Damanaki on behalf of the Commission Parliamentary question, dated on 02.02.2012, by the MEP Crescenzio Rivellini (PPE) on the point system (OJ C 235 of 14.8.2013).959 Article 42 of the IUU Regulation states that “1. For the purposes of this Regulation, the term ‘serious infringement’ encompasses: a) the activities considered to constitute IF fishing in accordance with the criteria set out in Article 3; b) the conduct of business directly connected to IF fishing, including the trade in or the importation of fishery products; c) the falsification of documents referred to in this Regulation or the use of such false or invalid documents”.960 Art. 90.1, Fisheries Control Regulation.961 Art. 90.1.b, Ibid.962 Art. 7.14, Regulation (EU) 2015/812, which replaces Article 90.1.c of the Fisheries Control Regulation.


suspension of the proceeding963. If a sanctioning procedure is not opened within those terms, the competent body will declare the expiry of the proceeding964 and the infringement will not be likely for prosecution anymore.

This limitation term will start to apply from the adoption of the agreement to initiate the proceedings and will be officially established after the staring of the procedure. The start of the sanctioning pro-cedure will always be ex officio965:

� By the own initiative of the competent body to initiate the procedure.

� As a consequence of a higher order.

� At the request of the General Directorate for Fisheries and Aquaculture Resources or other bodies or authorities within maritime fisheries.

� As a result of a complaint concerning any fact or behavior which may represent an infringement report966.

� As a result of the inspection minute drawn up by the inspectors of maritime fisheries or other officials or authorities.

The competent bodies to initiate an infringement procedure are:

a) The Government Delegates of the relevant AC967. These may vary depending on the type of infringement and the offender:

Table 44: COMPETENT GOVERNMENT DELEGATES FOR INITIATING AN INFRINGEMENT PROCEDURE

Competent Body Type of Violation Individual who has committed the

infringement

Government Delegate of the AC where the vessel has its home port at the time of the beginning of the file.

All except those related to rec-reational fishery.

Individual linked to a Spanish flag ship.

Government Delegate of the AC where the infringement was detected.

� Those associated with recre-ational fishery.

� Those not linked to any ves-sel.

Spanish national.

National of another MS or a third country that has committed the infringement in Spanish territory.

963 Article 15, RD 182/2015 provides that “1. One may remember the extension of processing time for disciplinary proceedings when, for justified and properly reasoned cause, it is deemed necessary to ensure the accuracy and legality of the decision when missing sufficient evidence, or when stakeholders are domiciled outside of Spanish territory. 2. Likewise, the maximum period of the previous article shall be suspended, in accordance with Articles 27 and 35 of these Regulations, or for reasons attributable to the stakeholders, and others under the law. 3. This extension or suspension shall be agreed by the competent body to resolve the procedure, either auto-matically or at the reasoned proposal of the examining body and notified to the interested party, except as provided in paragraph 5 (...)”.964 Art. 14, Ibid.965 Art. 20, Ibid.966 According to Article 20.3, Ibid, the complainant should be informed, in any case, whether or not a sanctioning proceeding is opened.967 Art. 3, Ibid. This article specifies that Government Delegates should initiate the file in case of serious and very serious infringements. We understand that this body will also initiate the procedure in case of minor infringements.


Continuation

Competent Body Type of Violation Individual who has committed the

infringement

Government Delegate of the AC of the port of arrival.


Vessel of another MS or a third coun-try.

Government Delegate of the AC where the natural or legal person who has committed the infringement holds resi-dence.


Spanish national linked to a vessel of another MS or a third country that does not reach Spanish port.


b) The General Secretary for Fisheries, when required by economic, social, legal or territo-rial circumstances968.

c) The competent bodies of the AC in the case of infringements within the management of the fisheries sector and the marketing of fishery products969.

While the initiation agreement is not necessarily at the discretion of the competent body, and the competent body is required to commence it whenever the request for initiation is well founded, RD 182/2015 provides that, in the case that the Government Delegate considers as not necessary to initiate the proceeding, they must reasonably communicate this to the body that requested the initiation of the proceeding, stating the reasons why there is no need to open the proceedings970. The latter applies except for those cases where the request for starting the proceeding brings to light actions raised by an inspector or another official agent. In this case, the reasons explaining the non-initiation of the procedure shall be sent to the DG for Fisheries Management971.

Prior to the start of a sanctioning procedure, previous actions may be undertaken972 in order to determine in a more accurate manner either the actions likely to be sanctioned as well as the per-son or persons which may be responsible973.

Moreover, as soon as there is knowledge on the commission of an infringement, the Government Delegate of the competent AC to initiate the sanctioning proceeding the competent authorities with-

968 Article 3.2 of RD 182/2015 states that only in exceptional cases the General Secretary for Fisheries may initiate an infringement pro-ceeding on maritime fisheries in external waters and, in any case, this should be adopted through a reasoned agreement, which shall be transferred to the corresponding Government Delegate and interested parties shall be notified of any developments taking place in the proceeding. 969 Art. 113, Law 3/2001.970 Art. 20.2, RD 182/2015.971 Art. 20.4, Ibid.972 Article 95.3 of Law 3/2001 provides that “The investigation actions or instruction may consist on a review of documents, books, main and auxiliary accounts, files, invoices, receipts, relevant correspondence for research purposes, computerized databases, pro-grammes, records and computer files relating to economic activities, as well as the inspection of goods, items, exploitations and any record or information to be provided to the administration or necessary to the requirement of the obligations established at the fisheries and marketing of fishery products regulations.”.973 According to Article 95.1, Ibid “Within the framework of preliminary proceedings (...), the relevant officials will investigate the natural or legal persons who may directly or indirectly have some kind of legal, commercial, or financial relationship with any other fishing activity or with the marketing of fisheries products”.


in maritime fisheries and the agents and authorities acting by delegation or any other legal form974 may adopt the necessary provisional measures975.

Subsequently, the sanctioning proceeding shall start consisting primarily on three main phases:

� Initiation phase.

� Instruction phase.

� Resolution phase.

Table 45: SANCTIONING PROCEDURE WITHIN MARITIME FISHERIES IN EXTERNAL WATERS976 977 978 979 980 981 982 983

Initiation

� The initiation shall be always ex officio976. � Initiation agreement, with the minimum content specified in RD 182/2015977. � Communication of the agreement to the instructor and transfer, if there exists, in any

case, of any existing legal actions. � Notification to the complainant, if any, and to the suspected responsible person or per-

sons978, as well as to other interested parties during the proceeding979.

Instruction

� Performance of the actions by the instructor ex officio980. � Observations made by the interested parties and/or submission of documents, infor-

mation they deem appropriate and, if necessary, proposal for evidence within 15 days from the notification of the initiation of the proceeding981.

� Possibility to open a trial period982 for between ten and thirty days983.

974 Art. 97.1, Ibid.975 See section 2.12.2 of this document.976 Art. 20, RD 182/2015.977 Article 21.1, RD 182/2015 provides that the initiation agreement for a sanctioning proceeding should contain at least the following specifications: “a) Identification of the suspected responsible person or persons, b) Summary of the facts underlying the procedure’s ini-tiation, their possible classification and the penalties that may correspond, without prejudice toward the possible results, c) Appointment of the instructor and, where appropriate, the secretary, with express reference to their area of challenge, d) Competent body for adopting a decision on the proceeding and the rules that are attributed to its competence, e) Provisional measures adopted, if any, without any prejudice about their possible adoption after the starting of the proceeding. In case of adopting provisional measures prior to the initia-tion of the procedure, an express statement shall be issued concerning its fate, maintenance, modification or removal. f) the maximum legal period for granting and notifying the resolution. g) Indication of the right to submit observations and holding a hearing procedure and the legal terms for implementation”. Also, in accordance with Article 6 of RD 114/2013, it is required to inform on the possibility for the infringements to entail the assignment of the corresponding points to the holder of the fishing license and to the master of the fishing vessel that has committed the infringement in accordance with Article 8.3 of this RD.978 Article 21.3, Ibid. regulates that in the case of edictal notification, it must be carried by notice published in the Official Journal (BOE).979 Article 96.1 of Law 3/2001 provides that “In accordance with Articles 58 and 59 of Law 30/1992 of 26 November on the Spanish Administrative Procedure, masters and owners, or interested parties who manage fishing activities, shall be deemed as notified once notification is given to the holder of the fishing license where they operate”. It is necessary to take into account that interested parties in a sanctioning procedure are those referred to in Article 31 of Law 30/1992, of 26 November, governing the Legal Regime of Public Administrations and the Common Administrative Procedure (LRJPAC) (BOE No. 285, of 27.11.1992). This Law has been amended on numerous occasions.980 According to Article 23.3 of RD 182/2015, “If as a result of the instruction of the proceeding the initial determination of the facts end-ed up modified, the possible classification of the sanctions or liabilities subject to sanction shall be notified to the suspected offender”.981 Art. 23.1, Ibid.982 According to Article 24, Ibid, “The instructor will order the practice of as many evidences as considered necessary in order to prove the existence of the unlawful conduct and determine the identity of the suspected offenders”. As to “evidences” must be understood” “all those different to documents that interested parties can bring at any stage of the proceeding”.983 The trial period will take place in accordance with provisions of Article 81 of the LRJAP-PAC.


984 985 986 987 988 989 990 991 992 993 994 Continuation

Instruction

� Development of the proposed resolution by the instructor body, outlining984: - Established facts and their legal classification. - Infringement, or, where applicable, proposal for the declaration of the absence of

an infringement or responsibility. - Responsible person or persons. - Proposed sanctions to be imposed. - Provisional measures, if any, that have been adopted. - The possibility that infringements entail the assignation of points to the holder of

the fishing license. - The possibility that infringements entail the assignation of points to the master of

the fishing vessel which has committed the infringement. � Notification of the proposed resolution to interested parties and opening of a hearing

within 15 days to submit observations or present relevant documents and information before the instructor of the proceeding985.

� Send a copy of the draft proposal for resolution to the competent body, together with all the documents, observations and information.

Resolution

� Possibility of undertake complementary actions by the competent body986. � Notification of complementary actions, if applicable, to interested parties. � Suspension of the legal period to resolve the proceeding until the completion of com-

plementary actions987. � Sanctioning decision issued by the competent body988, establishing:

- Facts989. - Assessment of evidence. - Responsible person or persons. - Infringement or infringements committed. - Assignation of points to the holder of the fishing license, if any990. - Assignation of points to the master of the vessel who committed the infringement,

if any991. - Imposed sanction or sanctions992. - Declaration of nonexistence of infringement or liability, if applicable. - Possibility to adopt the necessary precautionary measures to ensure the effective-

ness of the resolution993, as long as it is not enforceable994.

984 Art. 25, RD 182/2015.985 Art. 26, Ibid.986 According to Article 27.2, Ibid, “complementary actions shall be understood as those reports or extensions to the existing ones which are determinant for the adoption of the resolution, that is, those considered as essential by reasoned agreement of the competent body for the correct determination of the facts and the effective resolution of the proceeding”.987 Ibid. Article 27.1. provides that the complementary actions “should be practiced in a period not exceeding fifteen days and the result should be notified to the interested parties”.988 See Table 48 of this document.989 Article 28.3, RD 182/2015 specifies that “The resolution cannot accept facts different than those determined in the initial phase of the proceeding or, where applicable, those resulting from the complementary actions without prejudice of their different legal assessment.”990 Art. 6.1, RD 114/2013 and Art.126.3, Implementing Regulation.991 Art. 8.2, RD 114/2013.992 According to Article 28.4, RD 182/2015, “the competent body to resolve shall not be bound the sanction established in the proposed resolution of the instructor; however, if it considers that the infringement is more serious than that established in accordance with Arti-cles100 and 101 of Law 3/2001, the suspected offenders shall be notified to present as many comments as necessary within a period of fifteen days”.993 Article 28.7, Ibid provides that “These measures may include the maintenance of the provisional measures which, if any, had been taken earlier in accordance with Article 17”.994 According to Article 28.2, Ibid. “The resolution is enforceable when it becomes final in the administrative procedure, without preju-dice to Article 110 of Law 3/2001, of 26 March, concerning the conditional suspension”.



Resolution � Notification of the sanctioning decision to interested parties and to the administrative

body which submitted the request, in the case the administrative proceeding was ini-tiated as a result of a superior or reasoned request995.

Legal actions after the

adoption of resolution

� Possibility for interested parties to file an appeal before the superior legal body approv-ing the decision within the legal term established by LRJPAC996.

� Enforceability of the decision once declared as final at the administrative proceed-ing997.

� Period of 20 days to make the voluntary payment for the reduction of the financial sanction998.


This administrative proceeding may be replaced by a simplified one999, in cases where the compe-tent body could directly incorporate a proposal for resolution into the initiation agreement, provided that the infringements in question were only minor or serious ones corresponding to a financial pen-alty in its minimum grade1000. The proceeding may also be replaced by the simplified one in cases where the competent body had at the initiation of the proceeding enough evidence to prove that the infringement committed was classified as minor1001.

2.12.2. enforcemenT measures

In line with Article 91 of the Fisheries Control Regulation, the Spanish legal system regulates the possibility to impose provisional measures1002 either prior to the initiation of the procedure or once

995 Art. 28.2, Ibid.996 Art. 28.6, Ibid.997 This shall be understood without prejudice of Article 110 of Law 3/2001, in relation to the conditional suspension of the enforce-ment of sanctions: “1. When concerning sanctions within maritime fisheries, once adopted the final decision bringing to an end the administrative procedure , the offender may request within one month from the date of notification , for the conditional suspension of the enforcement of the sanction imposed, through a reasoned writing sent to the Ministry of Agriculture, Food and Environment, expressing his/her commitment to comply with the established conditions, in order to ensure, during the suspension period, compliance with the regulations governing the fishing activities. The submission of the request shall determine the automatic suspension of the enforcement of the sanction until the resolution of the file concerning the conditional suspension. The period for the conditional suspension shall be of six to nine months for minor infringements and of nine to sixteen months for serious infringements, attending in offenses, in both cases the suspension being tailored to the circumstances of the infringement committed. There is no possibility for suspension in cases of very serious infringements. 2. The requirements to apply for conditional suspension are the following: a) There have been no sanctions in the past five years. b) The amount of the financial sanction imposed is no greater than 30.000 EUR (thirty thousand). 3. (…) After compliance with the established requirements, the Ministry of Agriculture, Food and Environment may decide to grant or deny the conditional sus-pension of the sanction. 5. (…) The conditions that must be respected by the offender during the suspension period shall include, in any case: a) Do not commit any infringements on fisheries. b) Duly comply with precautionary measures that are imposed and maintained (if any) c) Precautionary measures shall, in all cases, be automatically extended for the period of validity of the conditional suspension. 7. (…) Once having completed the established suspension period, if the offender, in view of the reports that may be required for this purpose, has fulfilled the conditions and has not been sanctioned by other fisheries infringements, the Minister of Agriculture, Food and Environment will agree to retract the sanction previously imposed as long as the administrative decision adopted is final and has not been adopted a judicial ruling”.998 Art. 108, Ibid. Article 109.4, Ibid of the same law says that “This reduction will not apply in case of adoption of the conditional sus-pension”.999 Art. 30, RD 182/2015.1000 See section 2.12.4 of this document.1001 Art. 31, RD 182/2015.1002 Article 17.2, Ibid. states that “Provisional measures will entail, among others: a) Vessel boarding and seizure of fishing gears. b) sei-zure of the vessel. c) The return of the vessel to port. d) The temporary suspension of activities. e) Suspension of fishing authorizations. f) The seizure of fishing catches or fishery products or products or goods obtained as a result of the infringement committed, including the monetary amount from the sale of goods or products seized. g) The warranty. In the event of warranty requirement, it cannot exceed


it has already been initiated. They must always be imposed in a reasoned manner and in writing1003 in order to1004:

� Ensuring the effectiveness of the resolution that might be adopted.

� Guaranteeing the good ended of the proceeding.

� Avoiding maintenance of the effects of the breach.

� Guaranteeing the protection of the general interest.

Provisional measures must be adopted under reason, and confirmed, modified or drawn up at the start of the administrative sanctioning procedure within a period of 15 days from their adoption. Otherwise, they will have no legal effects1005.

Once the proceeding has started, the competent body for the resolution of the proceeding1006 may adopt further provisional measures or, in cases of urgency, these may be adopted by the body that initiated the procedure or the instructor body1007. Provisional measures may also be adopted during the course of the proceeding as well as modify those already adopted1008.

Once the administrative decision has been adopted bringing the proceeding to the end, the adopt-ed provisional measures will lose their legal effect1009.

2.12.3. imposiTion of sancTions

The type of sanctions as well as the competent body to impose them will depend on the serious-ness of the infringement:

Table 46: TYPES OF SANCTIONS DEPENDING ON THE INFRINGEMENT1010

Minor Infringements Serious Infringements

Very Serious Infringements

Type of Sanction1010

� A warning. � Public reprimand. � Financial sanctions � Seizure of fishing

catch, products or goods obtained as a result of the infringement.

� Public reprimand. � Financial sanctions. � Attribution of points. � Inability to exercise

fishing activities (max. 3 years).

� Financial sanctions. � Attribution of points Inability to

exercise fishing activities (max. 5 years).

� Seizure of fishing gears. � Seizure of fishing catch, prod-

ucts or goods obtained as a result of the infringement.

the amount of the financial penalty that may correspond to maximum the infringement or infringements suspected to have been offenses allegedly committed. The measures in paragraphs a), b), e) and f) shall only apply for cases of serious or very serious infringements”.1003 Article 97.3, Law 3/2001allows the adoption of provisional measures under verbal form “(...) When it is necessary, for reasons of urgency or need (...) reasoning its adoption, reflecting the agreement and the written motivation as soon as possible, and in any event, within a period not exceeding five days, giving transfer of it to the interested parties”.1004 Art. 17.1, RD 182/2015.1005 Article 17.4, Ibid. Exempts form this period “in the case provided for in section 8.a of these rules, when a notice to the flag State prior to the start of sanctioning proceedings, in which case the measures can be confirmed and the opening of the procedure can remain suspended until the completion of that process.”.1006 See table 46 of this document.1007 Art. 17.6, RD 182/2015.1008 Ibid Article 17.8. provides that this can be done either at the initiative of the party, or ex officio.1009 Art. 17.9, Ibid.1010 Art. 105.2, Law 3/2001.


1011Continuation

Minor Infringements Serious Infringements


� Inability to obtain loans, subsidies or public aid (max. 2 years).

� Temporary deten-tion of the vessel (max. 6 months).

� Suspension of the status of approved economic operator (max. 2 years).

� Seizure of fishing gear in case of infringements con-cerning species and use of fishing gears.

� Seizure of fishing catch, products or goods obtained as a result of the infringe-ment.

� Suspension, remov-al or non-renewal of authorisations licens-es or permits (max. 3 years).

� Inability to obtain loans, subsidies or public aid (max. 3 years).

� Temporary detention of the vessel (max. 1 year).


� Reduction or can-cellation of rights or fishing opportunities in case of infringe-ments concerning control and inspec-tion, and species.

� Suspension, removal or non-renewal of authorisations, licenses or permits (max. 7 years).

� Inability to obtain loans, subsi-dies or public aid (max. 7 year).

� Vessel seizure temporal deten-tion of the vessel (max. 3 years)3 years).


� Reduction or cancellation of rights or fishing opportunities.

Body responsible for imposing sanctions in relation to maritime fisheries in external waters1011

Government Dele-gates.

Director General for Fishery Resources and Aquaculture.

� Secretary General for Fisher-ies in the case of very serious infringements, if the amount of the financial sanction does not exceed 300,000 EUR.

� Minister of Agriculture, Food and Environment, when the infringement is classified as very serious if the amount of the penalty exceeds 300,000 EUR.

1011 Art. 112, Ibid.


1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023Continuation

Minor Infringements

Serious Infringements


Body responsible for imposing sanctions in relation to the management of the fishing sector and marketing of fishery products1012

Cataluña Director of the Department for Agriculture, Livestock, Fisheries, Food and Environment of the corresponding provincial service (Barcelona, Girona, Lleida, Tarragona, Central Cataluña, Ebro Territory)1013.

Valencian Community1014

Director of the Pro-vincial Service of the Ministry of Agricul-ture, Fisheries and Food of the corre-sponding province.

DG for Fisheries and Livestock and Fisheries.

Department for Agriculture, Envi-ronment, Climate Change and Rural Develop-ment.

Canary Islands Deputy Department for Fisheries and Water1015.

Department for Agriculture, Livestock, Fisheries and Water1016.

Galicia Head of the Provin-cial Delegation of the Department for Rural Environment and the Sea1017 of the corresponding prov-ince.

Head of the Pro-vincial Delegation of the Department for Rural Environ-ment and the Sea, in cases that the sanction exceeds 15,000 EUR1018.

Sub-d i rec to ra te General for Fish-eries and Fish Markets, in the oth-er cases1019.

Department for Rural Environ-ment and the Sea and the Galician Agricul-tural Guarantee Fund1020.

Andalucia Provincial Del-egation of the Department for Agri-culture, Fisheries and Rural Develop-ment1021.

General Directorate for Fisheries and Aquaculture1022.

D e p a r t m e n t for Agriculture, Fisheries and Rural Develop-ment1023.

1012 Art. 113, Ibid.1013 Art. 149.2, Law 2/2010, on Fisheries and Maritime Action of Cataluña. This law was amended by Law 2/2014.1014 Art. 1, Decree 180/2001, of 30 October, of the Valencian Government, determining the competencies on sanctioning infringements concerning the management of the fishing sector (DOCV No. 4121 of 06.11.2001).1015 Art. 12.1 C) a), Decree 40/2012 of 17 May , on the approval the Organic Regulation of the Ministry of Agriculture, Livestock, Fish-eries and Water (BOIC No. 103 of 05.25.2012).1016 Art. 3.2 b), Ibid.1017 Art. 153.3 a) of Law 11/2008, on Fisheries of Galicia.1018 Ibid.1019 Art. 153.3 b), Ibid.1020 Art. 153.3 c), Ibid.1021 Art. 121), Law 1/2002 on. planning, organization, promotion and control of Maritime Fisheries, Shellfishing and Marine Aquaculture of Andalucía. Through Decree 215/2015 of 14 July the basic structure of the Department for Agriculture, Fisheries and Rural Develop-ment of Andalucia suffered some modifications, among them the General Directorate for Fisheries turned to be called as the General Directorate for Fisheries and Aquaculture.1022 Art. 121), Ibid.1023 Art. 121), Ibid.


1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035Continuation

Minor Infringements

Serious Infringements Very Serious Infringements

Region of Murcia

Directorate General for Livestock and Fisher-ies1024.

Department for Water, Agriculture and Environment, in relation to sanc-tions not exceeding 150,000 EUR1025.

Governing Council of the Region of Murcia, in relation to sanctions not exceeding that amount1026.

Balearic Islands Directorate General for Fisheries and Marine Environment1027.

Department for Environment, Agri-culture, and Fisheries in relation to sanctions of up to 150,000 EUR1028.

Governing Council of the Balear-ic Islands for sanctions exceeding 150,000 EUR1029.

Asturias Directorate General for Maritime Fisheries1030.

Department for Rural Development and Natural Resources1031.

Basque Country Directorate General for Fisheries and Aquacul-ture1032.

Department for Economic Develop-ment and Competitiveness1033.

Cantabria Directorate General for Fisheries and Food1034.

Department for Rural Environment, Fisheries and Food1035.


2.12.4. financial sancTions and fines

The Fisheries Control Regulation requires the amount of the sanction to be proportionate to the seriousness of the infringement, to prevent the offender from obtaining economic benefits from the

1024 Art. 107), Law 2/2007 on Marine Fisheries and Aquaculture of the Region of Murcia. The organic structure of the Department for Water, Agriculture and Environment was amended through Decree No. 106/2015 of 10 July of the Government Deputy. Thus the directive bodies referred to in Law 2/2007 now have a different denomination.1025 Art. 107 b), Ibid.1026 Art. 107 c), Ibid.1027 Art 140.3 a), Law 6/2013, on Maritime Fisheries, Shellfishing and Aquaculture of the Balearic Islands. The Departments of the AC of the Balearic Islands were amended through Decree 24/2015, of 7 August on the president of the Balearic Islands. Thus the bodies referred to in Law 6/2013 have been replaced by the ones contained in such Decree.1028 Art. 140.3 b), Ibid.1029 Art. 140.3 c), Ibid.1030 Art. 52.3 a), Law 2/1993 on Maritime Fisheries in Internal Waters and Exploitation of Marine Resources. 1031 Art. 52.3 b), Ibid. Through Decree 6/2015, of 28 July, of the President of the Principado de Asturias, on the restructuration of the De-partments involving the Administration of the Autonomous Community (BOPA, No. 175, of 29.07.2015), the functions assigned to the pre-vious Department for Agrolivestock and indigenous resources became the Department for Rural Development and Natural Resources.1032 Art. 65.1 a), Law 6/1998, on Fisheries of the Basque Country.1033 Art. 65.1 b), Ibid.1034 Art. 17.a, Law 7/1997 of 30 December on Fiscal and Administrative Measures of Cantabria (BOE No. 33, 07.02.1998).1035 Art. 17. b, Ibid. Through Decree 3/2015 of 10 July, the organization of the Departments of the Administration of the AC of Cantabria, the Department for Livestock, Agriculture and Fisheries were replaced by the Department for Rural Development, Fisheries and Food.


commission of the infringement, while guaranteeing his/her legitimate right to exercise their profes-sion1036.

For that reason, sanctions will be imposed by the competent Spanish authorities in order to make them effective, dissuasive and proportionate to the infringement committed.

Depending on the seriousness of the infringement, Law 3/20012001regulates the imposition of this type of sanctions by thresholds1037:

� Minor infringement: from 60 to 600 EUR,

� Serious infringements: from 601 to 60,000 EUR,

� Very serious infringements: from 60,001 to 600,000 EUR.

Within the different thresholds, the competent sanctioning body shall impose the sanction at their minimum, medium, or maximum grade1038 depending on different circumstances such as1039:

� The economic benefit obtained or envisaged as a consequence of the infringement;

� The size and engine power of the fishing vessel;

� The value and nature of the prejudice caused to fishing resources, to third parties, public domain goods, or to areas under environmental or fisheries protection;

� The possibilities for restitution of the damage caused;

� The existence of aggravating circumstances1040 (i.e. the degree of intentionality and rep-etition, the continuation of the offence, the threatening of public health or human life as a result of the infringement 1041, among others).

Law 3/2001, in accordance with what has been outlined in Article 89.3 of the Fisheries Control Regulation, also provides for the possibility to adopt a system of fines, whose amount must be pro-portionate to the turnover of the legal person or to the financial advantage achieved or envisaged,

1036 Art. 89.2, Fisheries Control Regulation.1037 Art. 106.2, Law 3/2001. In this regard, it is worth noting the response of Ms. Damanaki on behalf of the Parliamentary Commission question dated on 14.09.2012 made by the MEP Alain Cadez (PPE) on the coordination of financial sanctions under the CFP in the EU system: “The Commission is aware of the situation in the Member States that implies a certain disparity in deciding the level of the sanctions taken by the national administrative or judicial authorities (...). In order to end with the unequal treatment between operators and ensure legal certainty, Regulation 1005/2008, Chapter IX introduces a number of provisions aimed at coordinating the system of sanctions to be imposed in each Member State for serious infringements (...). The level of sanctions should be decided by national authorities, according to the degree of severity of infringements and the responsibility of the offenders. In order to coordinate the impo-sition of effective, proportionate and dissuasive sanctions, Article 44.2 of Regulation 1005/2008 provides that the maximum level of a sanction shall be an amount equal to at least 5 times the value of the fishery products obtained by committing the offense (...). Regulation 1224/2009 completes this system with provisions governing the imposition of sanctions for serious infringements, including those of Reg-ulation 1005/2008. This regulation also establishes a penalty point system to the holders of fishing licenses when they commit a serious infringement of the CFP rules of the CFP” (OJ C 243, of 20.08.2011).1038 Article 106.2 of Law 3/2001 provides that: “Within the preceding sections, the fines will be imposed in minimum, medium or max-imum levels as follows: a) Financial sanction for minor infringements: Level 1 (Minimum): 60-200 EUR. Level 2 (Intermediate): 201-400 EUR. Level 3 (Maximum): 401-600 EUR. b) Financial sanctions for serious infringements: Level 1 (Minimum): 601-15,000 EUR, Level 2 (Intermediate): 15,001-40,000 EUR 15001-40,000 Euros. Level 3 (Maximum): 40,001-60,000 EUR. c) Financial penalty for a very serious offense: Level 1 (Minimum): 60,001-120,000 EUR 60,001-120,000 EUR. Level 2 (Intermediate): 120,001-240,000 EUR. Level 3 (Maxi-mum): 240,001-600,000 EUR”.1039 Art. 106.3, Ibid.1040 Article 13.3, RD 182/2015 specifies that “the graduation or aggravating criteria contained collected in the preceding paragraphs may not be used to aggravate or mitigate the infringements when they are contained in the description of the infringement itself or are an integrated part of the administrative unlawful act”.1041 Art. 13.2, Ibid.


but which in any case, 20% of the value of the financial sanction corresponding to the category of infringement committed1042.

2.12.5. assignaTion of poinTs

The penalty point system regulated under EU law1043 as a deterrent measure to prevent the commit-ment of serious infringements in the fisheries sector, as well as the creation of a national register of all infringements to the CFP rules which are committed by vessels or nationals flying their flag are correctly recorded in national law under RD 114/2013.

The category of serious infringements which will entail the assignment of points1044 are those the that assign points listed in Article 42 of the IUU Regulation and in Annex X of the Implementing Regulation1045 as well as:

� The failure to bring and retain on board the fishing vessel and to land any catches of species subject to the landing obligation set out in Article 15 of Regulation (EU) No 1380/2013, unless the bringing and retention on board and the landing of such catches would be contrary to obligations or subject to exemptions provided for in the rules of the common fisheries policy in fisheries or fishing zones where such rules apply1046.

In case of having committed a serious infringement also classified as that under Law 3/20012001, regardless of whether it has been committed in Spain or in another MS1047, the GDF or the body des-ignated by each AC (if an infringement has been committed within internal waters or shellfishing1048) will assign through a sanctioning resolution the appropriate number of points to the holder of the fishing license of the fishing vessel1049.

1042 Art. 105.3, Law 3/2001.1043 Art. 92, Fisheries Control Regulation, developed by Title VII of the Implementing Regulation.1044 Arts 92.1, CR and 126.1, Implementing Regulations.1045 Annex III of the Implementing Regulations assigns points if the following offenses committed: “1. Breach of obligations to record and report catch or catch-related data, including data to be transmitted by the vessel monitoring system by satellite. 2. Use of gear prohibited by or non-complaint with EU legislation. 3. Falsification or concealment of markings, identity or registration. 4. Concealing, tampering with or disposing of evidence from an investigation. 5. Boarding, transhipment of, or landing of fish under the regulation size (thus infringing legislation). 6. Conducting, in the zone of a regional fisheries management organization, fishing activities which are in-compatible with or contradict conservation and management measures of that organization. 7. Fishing without a license, authorization, or permit issued by the flag state or relevant coastal state. 8. Fishing in a closed area, during a closed season, or without having a quota, or after exhausting a certain quota, or fishing beyond a certain depth. 9. Fishing for a population under moratorium or for which fishing is prohibited. 10. Obstructing the work of those responsible for inspection in their work of enforcement of conservation and management measures, or the work of observers in the exercise of their duties of observing compliance with the applicable standards of the Union. 11. Participation in transhipment or joint fishing operations with vessels of which there is evidence that they have been engaged in IF fishing within the meaning of Regulation (EC) No 1005/2008, particularly those vessels registered on the IF Union vessel list or in the IF vessel list of a regional fisheries management organization, or has supported or replenished such ships. 12. Use of a fishing vessel without nationality and is therefore a stateless vessel, in accordance with international law”.1046 Art. 7.14, Regulation (EU) 2015/812, which replaces Article 92.1, CR.1047 Art. 126.5, Implementing Regulation.1048 Article 3 of RD 114/2013 provides that: “The General Secretariat of Fisheries is designated as the national competent authority within infringements on maritime fisheries in external waters for the purposes of the provisions set in Article 125 of the Commission Reg-ulation (EU) No. 404/2011 of 8 April 2011. 2. Furthermore, each Autonomous Community shall designate and inform the General Secre-tariat for Fisheries about the competent authority in charge to perform the functions set out in points a), b) and c) of that article for the infringements committed within shellfishing and fisheries in internal waters of its autonomous community.” In addition, Article 125 of the Implementing Regulation states that: “Each Member State shall designate the competent national authorities which shall be responsible for: a) setting up the system for the attribution of points for serious infringements, as referred to in Article 92(1) of the Control Regulation; b) assigning the appropriate numbers of points to the holder of a fishing licence; c) transferring assigned points to any future holder of a fishing licence for the fishing vessel concerned where the latter is sold, transferred or otherwise changes ownership and (…)”.1049 Art. 6.1, Ibid. RD 114/2013.


The number of points to be assigned for each serious infringement foreseen in Annex III of the Implementing Regulation, is the result of negotiations between the EC and the MS, and reflects the seriousness of the infringement. MS have some discretion at the time of deciding which infringe-ments will be considered serious under their legal system. Thus, they will decide depending on the circumstances of each case, whether it is serious infringement or not, and accordingly, the appro-priate number of points for the infringement1050.

All points assigned for serious infringements1051 will accumulate and may lead to the temporary suspension or withdrawal of the fishing license1052:

� 18 points: suspension for two months.

� 36 points: Suspension for four months.

� 54 points: eight-month suspension.

� 72 points: one-year suspension.

� 90 points: indefinite withdrawal of the license.

On the other hand, if within the period of three years since the commission of the last infringement no other infringement has been committed, all points assigned to the holder of the fishing license will be deleted1053. Furthermore, it will be possible to delete two points every three years since the date of the last serious infringement in those cases contained in Article 133.3 of the Implementing Regulation, and provided that the reduction does not result in the deletion of all points reflected in the license1054.

Both the assignment1055, as well as the deletion of those two points shall be communicated to the holder of the license1056.

1050 Response by Ms. Damanaki on behalf of the EC question dated on 02.02.2012 made by the MEP Crescenzio Rivellini (PPE) on the penalty point system which, together with other circumstances, was accused of ruining the Italian fishing fleet, as this rules were it was difficult to apply and overly restrictive: “The number of points assigned for each serious infringement is the result of intensive negotiations with Member States and reflects, in particular, the gravity of the infringement. For example, the system does not apply to minor infringements. Member States have some discretion in classifying infringements as serious, and may, in that context, take note of the circumstances of each particular case (...). Also, the system of points also provides incentives for compliance and provides for the deletion of points when a fishing vessel has not committed any serious infringement within three years after it committed the last serious infringement. Therefore the Commission considers that the current regulations of the point system established under Regulation 1224/2009 is fair and will help to deter potential offenders from committing infringements, thereby contributing to develop and promoting a culture of compliance” (OJ C 235 of 14.8.2013).1051 In accordance with Article 126.2 of the Implementing Regulation, in case of detection of two or more serious infringements during the same inspection, the corresponding points will be assigned to each infringement up to a maximum of 12 points.1052 Art. 7 paragraphs 2 and 4, RD 114/2013, together with Article 129.1 of the Implementing Regulation.1053 Art. 92.4, Fisheries Control Regulation. 1054 Article 133.3 of the Implementing Regulation states that: “3. Two points shall be deleted provided that the total amount of points assigned to the holder of the fishing licence for the fishing vessel concerned exceeds two, if: a) the fishing vessel which has been used in committing the infringement for which points were assigned uses thereafter VMS or records and transmits thereafter fishing logbook, transhipment and landing declaration data electronically without being legally subject to these technologies; or b) the holder of the fishing licence volunteers after the assignation of points to take part in a scientific campaign for the improvement of the selectivity of the fishing gear; or c) the holder of the fishing licence is a member of a producer organisation and the holder of the fishing licence accepts a fishing plan adopted by the producer organisation in the year following the assignation of the points involving a reduction of 10 % of the fishing opportunities for the holder of the fishing licence; or d) the holder of the fishing licence joins a fishery covered by an eco-labelling scheme that is designed to certify and promote labels for products from well-managed marine capture fisheries and focus on issues related to the sustainable use of fisheries resources. (…) the holder of a fishing licence can avail himself of one of the options under (a), (b), (c) or (d) (…)”.1055 Art. 126.3, Ibid.1056 Art. 133.4, Ibid.


In case of suspension or permanent withdrawal of the license, the DG for Fisheries Management1057, in accordance with Article 131.1 of the Implementing Regulation, should record this decision both in the National Register of Fishing Vessels and the EU fishing Fleet Register, indicating that the vessel in question does not have a license. Furthermore, the list of fishing licenses to be contained within the secure part of the website referred to in Article 116 of the Fisheries Control Regulation must be updated immediately1058, stating all the new conditions relating to the fishing license and the date of entrance into force (assignment of points, suspension of license, duration and perma-nent withdrawal of the license)1059.The Sub-directorate General for Legal Affairs of the SGF must communicate this condition to the holder of the license1060, which shall immediately cease in their fishing activities of the vessel concerned and return to its home port or to that indicated by the Sub-directorate General for Legal Affairs1061.

If the fishing vessel engages in fishing activities during the period in which its license is suspend-ed or withdrawn, the Sub-directorate General for Legal Affairs may take appropriate enforcement actions, and include the vessel on the list of EU fishing vessels that are engaged in IUU fishing, where appropriate1062.

Although Article 7.8 of RD 114/2013 provides that in relation to any matter which is not regulated, the provisions contained in the Implementing Regulation shall apply, the. The legal text contains some inconsistencies if compared to the provisions of the Implementing Regulation in three aspects:

� It only requires communicating to the National Register of Fishing Vessels and the EU fishing Fleet Register the permanent withdrawal of a license1063, while the Implementing Regulation also requires communicating the cases of suspension of fishing licenses.

� Replaces the obligation to communicate both Registers the suspension of the license foreseen by the Implementing Regulation, by communication the DG for the Marine Mer-chant and the Social Marine Institute1064. Sources from the MAGRAMA confirmed at the end of July 2015 that, in addition to these communications, there was an intention to apply the obligation to communicate the registers in the coming future.

� While updating the list of licenses provided in the secure part of the website would be directly applicable, we have not been able to find the existence of such website. Nonethe-less sources from the MAGRAMA confirmed at the end of July 2015 that the preparation of this website was almost finished.

Regardless of the points assigned to the fishing license, which will be transferred to any future holder thereof in case a change of ownership occurs1065, there is also a penalty point system apply-ing to the master of the fishing vessel who has committed a serious infringement1066. Points will be 1057 Article 7.4 of RD 114/2013 provides that “(...) the competent body responsible for granting licenses shall communicate this circum-stance to the National Register of Fishing Vessels and to the EU Fishing Fleet Register, for the purposes specified in Article 131 of the Commission Regulation (EU) Num 404/2011 of 8 April 2011”.1058 See Section 2.13.2 of this document.1059 Art. 131, Implementing Regulation.1060 Art. 130.2, Implementing Regulation. 1061 Ibid. This article also states that “During the voyage the fishing gear shall be lashed and stowed in accordance with Article 47 of the Control Regulation. The holder of the fishing licence shall ensure that any catch on board the fishing vessel is dealt with in accordance with the instructions of the competent authorities of the flag Member State”.1062 Art. 7.7, RD 114/2013, together with Article 132 of the Implementing Regulation.1063 Art. 7.4, RD 114/2013.1064 Art. 7.5, Ibid.1065 Art. 92.2, Fisheries Control Regulation.1066 Art. 8, RD 114/2013, together with Article 134 of the Implementing Regulation.


assigned through sanctioning resolution and, once communicated the accumulation of points, it may lead to the prohibition in the exercise of the fishing activity1067. This situation shall be communi-cated to the DG for the Merchant Marine and the Social Institute of the Navy by the competent body adopting the sanctioning resolution1068.

Spain was one of the first MS to apply the penalty point system for infringements detected from 1 January 2012. Nonetheless, RD 114/2013 was approved on 15 February 2013, although Article 134 of the Implementing Regulation stated January 2012 as the maximum deadline to communicate the EC about the adoption of the point system.

2.12.6. naTional regisTer of infringemenTs

All infringements committed by Spanish nationals or Spanish fishing vessels both in internal or external waters, including those prosecuted in other MS1069, will be included at the National Regis-ter for Serious Infringements to the CFP rules, indicating the sanctions imposed and the number of points assigned. This Register was established after the entry into force of RD 114/2013 and it is ascribed to the DGF1070.

Data in the register shall be recorded by the DGF in the case of serious infringements within mari-time fisheries in external waters, or by the competent authorities of the AA.CC infringements relate to the management of the fishing sector or marketing1071. Such data must be registered within a maximum period of one month from the adoption of the sanctioning resolution, expressly stating its provisional character in case the competent authority has not adopted a final decision1072.

If after 3 years from the year after the sanction was legally enforced, no other offense has been registered, the imposed sanctions will be deleted either automatically by the DGF or at the request of the interested party. In this case, the DGF shall proceed to cancel and notify such deletion within a period of a month1073.

If the competent authority of another MS requires information regarding the content of the national register, it will be the DGF the competent national authority to reply to the requests for assistance. If the information requested refers to a matter falling within the AA.CC, it shall be transferred by the SGP to the corresponding AA.CC for the purposes of gathering all relevant information1074.

1067 Article 8.4 of Decree 114/2013 provides that “the prohibition to exercise the fishing activity will apply when the following points are reached and for the following periods: a) 2 months: 30 points. b) 4 months: 70 points, c) 8 months: 100 points, d) 1 year: 130 points”.1068 See table 46 of this document. 1069 Art. 93.1, Fisheries Control Regulation.1070 Art. 2, RD 114/2013.1071 Art. 4 paragraphs 1 and 2, Ibid, together with Article 113 of Law 3/2001.1072 Art. 4.3, Ibid.1073 Art. 5.3, Ibid. 1074 Art. 9, Ibid. together with Articles 93 and 155 and et seq. of the Implementing Regulation.


Enforcement

Direct enforcement measures contained in EU law are properly reflected in the Spanish legal system. Spain has also adopted legal instruments to regulate those measures requiring further development by MS. Although the penalty point system started to be applied in Spain for all the infringements detected from 1 January 2012, RD 114/2013 was approved later on, that is after the deadline established by the Implementing Reg-ulation.

However, as a result of this analysis, we have identified some inconsistencies between Spanish law and EU regulations:

RD 114/2013 only regulates the recording in the National Register of Fishing Vessels and the EU Fishing Fleet Register those licenses which have been withdrawn, while the European regulations also requires the recording of the suspended licenses.

In the Spanish legal system it has not foreseen the obligation to display the list of licenses indicating the assigned points, suspensions, and permanent withdrawals in the secure part of the website referred to in Article 116 of the Fisheries Control Regula-tion, given that, at this time, such website does not exist.

2.13. Data and Information

The enforcement of the Fisheries Control Regulation generates a significant amount of data and information, such as the data received by the FMC or data and information contained at the elec-tronic fishing logbook or DEA, which should be processed with the aim to effectively verify and monitor compliance with the CFP obligations. However, in order to be useful, data must be subject to controls, analysis and verifications. Thus, the Fisheries Control regulation provides a set of obli-gations on MS to ensure that all data and information generated is used correctly in terms of control. Likewise, access to information can be useful not only for control purposes, but also for operators to comply with their obligations, for research projects, for assessing the enforcement of the fisheries laws and others.

Taking into account the usefulness of this data, it is important not to forget that transparency is one of the rules of good governance that must guide the application of the CFP rules1075.

2.13.1. daTabases and The compuTerised validaTion sysTem

Pursuant to Article 109 of the Fisheries Control Regulation, Spain should have had no later than 31 December 2013:

1) A computerized database in order to validate the data recorded in accordance with the Regulation, and

1075 Art. 3.k), CFP Regulation.


2) A computerized validation system.

In accordance with the RD 401/2012 of 17 February, regulating the basic structure of the MAGRA-MA, among the functions corresponding to the DG for Fisheries Management are the collection, processing and verification of the information concerning the activities included within the scope of the CFP1076.

The Fisheries Control Regulation1077 requires Spain to ensure that all recorded data is accurate and complete, and that is submitted within the deadlines established in the CFP. Particularly, the CFP requires:

a) Cross-checking, data analyses and verifications of the following data through automated computerized algorithms and mechanisms:

i. VMS data,

ii. Fishing activities data, in particular fishing logbooks, the landing and transhipment declaration, and prior notifications,

iii. Data from take-over declarations, transport documents and sales notes,

iv. Data from fishing licenses and authorizations,

v. Data from inspection reports,

vi. Data on engine power;

b) That Spain conduct, when appropriate, cross-checks, analysis, and verifications of the following data:

i. VDS data,

ii. Data on sightings,

iii. Data relating to international fisheries agreements,

iv. Data on entries into and exits from fishing areas, maritime areas where specific rules on access to waters and resources apply, regulatory areas of regional fisheries management organizations and similar organizations, and waters of third country,

v. AIS data.

This data must be stored in computerised databases1078. These databases must clearly indicate all the inconsistencies1079 that have been detected by the data validation system and indicate the reasons for such correction1080.

1076 Art. 17.1.t), RD 401/2012.1077 Art. 109.2, Fisheries Control Regulation.1078 Art. 144.1, Implementing Regulation. 1079 If there exist inconsistencies between connected data, an investigation should be carried out and Spain should adopt all the neces-sary measures if there exist reasons to suspect the commission of an infringement. The dates on the receipt, entrance and validation of data shall be recorded for further actions if inconsistences are detected receipts (Art. 109.4-5, Fisheries Control Regulation). 1080 Art. 109.4., Fisheries Control Regulation .


The CVS1081 should allow the immediate identification of inconsistencies, errors, and missing infor-mation in data. Particularly, this system should include1082:

a) One or more databases which store all data to be validated by this system;

b) Validation procedures including data quality checks, analysis and cross-checks of all the data;

c) Procedures for the access to all such data by the EC or by a designated body.

The provisional version 1.1 of the 2014-2020 EMFF Operational Programme for Spain, in the part relating to the DAFO analysis for the implementation of the CFP includes as a threat: “the length of time required to implement the data validation system”1083 and includes the need to, “continue reinforcing the validation systems for databases”1084.

The Fisheries Control Regulation requires MSMS to establish a national plan for the implemen-tation of the validation systems allowing them to prioritize validations and cross-checks and subsequent follow up on inconsistencies based on a risk assessment1085. The Spanish National Plan was approved by the Commission Implementing Decision of 13 February 2013 on the Com-mission’s approval of national plans for the implementation of validation systems in accordance with Article 109, paragraph 8, of the Council Regulation (EC) no 1224/20091086.

Table 47: THE COMPUTERIZED VALIDATION SYSTEM1087 1088

Elements of the Validation System

Guidelines

Databases in which the data to be validated by the system is stored (Article 144, Implementing Regula-tion)

Along with the data to be stored in computerised databases1087, it should include (as minimum): � All items that must be included to complete the surveillance reports

concerning sightings and detections of fishing vessels (Annex XXIII Implementing Regulation: general information, data of the fishing ves-sel I and information on sightings and detection)1088.

1081 This is defined by the Implementing Regulation as “a system capable of verifying that all data recorded in Member States’ databas-es are accurate, and complete, and they have been submitted within the deadlines” (Art. 2.17).1082 Art. 143, Ibid.1083 Provisional Version 1.1 of the 2014-2020 EMFF Operational Program for Spain, p. 50.1084 Ibid, p. 51.1085 This plan should cover the data to be stored in the database and the research of inconsistencies (Art. 109.8, Fisheries Control Regulation).1086 Decision C (2013) 651, OJ L 44 of 15.02.2013. This decision also approved the national plans for implementation of validation systems of: Belgium, Bulgaria, Cyprus, Denmark, Spain, Estonia, Finland, France, Italy, Ireland, Latvia, Lithuania, Malta, Netherlands, Poland, Portugal, Sweden and the United Kingdom.1087 If the data is not automatically stored in a database, they should be manually entered or scanned for integration without delay and subject to the terms established in the applicable legislation. The receipt and entry of data shall be recorded in the database.1088 See Section 2.7 of this document.


1089 1090 1091Continuation

� The information to be included in the inspection reports1089 (Annex XXVII Implementing Regulation): - Fishing vessel at sea; - Transhippemt of fishing vessel; - Fishing vessel in port or in landing and before first sale; - An inspection conducted in markets; - An inspection conducted on transport vehicles.

� EU conversion coefficients for fresh fish (Implementing Regulation Annex XIII).

� Additional data to supplement the validation system (Annex XXX-II: Business rules, validation inconsistencies, validation information, VMS data, etc.).

� Any other data necessary for validation procedures.This data shall be accessible to the CVS on a continuous basis and in real time, allowing direct access to all these databases without human intervention. Thus databases shall be interconnected.

Validation procedures (Art. 145 Implementing Regulation)

The CVS validates each dataset on the basis of automated comput-erized algorithms and procedures in a continuous, systematic, and thorough manner1090.

For each validation procedure shall be a rule or a set of business rules that will define which validations are executed by the procedure as well as where the results of these validations are stored. Where appropriate, the relevant reference to the legislation whose application is being ver-ified will be indicated.

All the results of the CVS, both positive and negative, are stored in a database that allows for the immediate identification of any inconsist-ency or non compliance issue detected by the validation procedures, as well as to follow-up on these inconsistencies. Identification may also be retrieved for fishing vessels, vessel masters or operators for which inconsistencies and possible non-compliance issues were detected repeatedly in the course of the past 3 years.

Procedures for access to data (Art. 146 Implementing Regu-lation)

It must be ensured that the EC or designated body has at any time access to data in real-time:

a) All data stored in the databases.

b) All business rules defined for the CVS, including the definition, rel-evant legislation and the place where the validation results are stored.

c) All validation results and follow-up measures, with a marker if the data item has been corrected, and with a link to infringement proce-dures, if applicable.

All of these data shall be accessible through the secure website1091.


The provisional version 1.1 of the 2014-2020 EMFF Operational Program for Spain refers to a series of actions to be taken in order to establish and improve the collection, storage and validation of data:

1089 See Section 2.8 of this document.1090 Validation shall entail procedures to control the quality of basic data, checking the data format and the minimum applicable require-ments, as well as more advanced verification procedures through the detailed analysis of dataset in several registers, using statistical methods or collation of data from different sources.1091 Article 2.18 of Implementing Regulation defines “web service” as “a software system designed to enable interoperable interaction between machines on a network”.


� Implementation of a project on increasing VMS messaging1092.

� Advancement to an OLAP system (On-line Analytical Processing) in the control database, which will allow for a more efficient analysis and provide fast and accurate answers, even in recreational fisheries. Another expected improvement is the development of a VALID tool for automatic crossings of information detecting any existing consistency and facili-tating data checks1093.

The MAGRAMA Annual Reports corresponding to years 2009 to 2013 inform that, among their activities the undertaken of crossings of data to verify compliance with the European legislation concerning fisheries control1094. For example, the Communications Center of the SGCI, “facilitates both the recording of information as well as its analysis, improving the flow of data crossings”1095.However, the MAGRAMA recognizes the need to strength such validation systems, as it was already stated in the provisional version of the EMFF Operational Programme1096.

2.13.2. exchange of and access To daTa

The Fisheries Control Regulation requires the electronic exchange of data between MS1097 and the EC or designated body, in order to facilitate the control functions.

Table 48: DATA TO BE ELECTRONICALLY EXCHANGED BETWEEN THE MS AND THE EC

Data whose exchange has to be guaranteed by the flag MS

Data whose exchange has to be guaranteed by the coastal MS

a. VMS data when its vessels are in another MS´s waters.

b. Fishing logbook information when its vessels are fishing in another MS´s waters.

c. Landing and transshipment declarations when such operations take place in another MS´s ports.

d. Prior notification when the intended port is in another MS.

a. Sales notes information to the flag MS when a first sale originated from another MS´s fishing vessel.

b. Take-over declaration information when the fish is placed in storage in MS other than the flag MS or the MS of landing.

c. Sales notes and take-over declarations to the MS where the landing took place.


1092 P. 170, Section 12.5.1093 P. 174, Section 13.2.1094 For example instance, it was reported that “During 2009, 2010 and 2011 respectively, there have been established mechanisms for administrative control, through the undertaken of consultations to the database and crossings between the junction with the different data sources have been established, which allow to verify enable verification of compliance with the European legislation Community legislation in relation to:• Control of the tolerance range (difference between the quantities caught and landed, noted in the fishing logbook and landing decla-ration). (...)• Control of landings of deep-sea species made to unauthorized ports. (...)• Control of the quantities of species with catch limits per fishing trip. (...)• Control of landings of North and South hake made to unauthorized ports. (...)• Control of vessels of a length greater than 10 meters that have made sales and have not submitted landing declaration or vice versa (...)• Control on compliance with the 48 hour deadline after landing for delivery of the landing declaration and the logbook sheets (...)”.Source: MAGRAMA Annual Report on Activities Memorandum on Agriculture, Food and Environment 2011, p. 1147.1095 2013 MAGRAMA Annual Report on Activities, p. 1326.1096 EMFF 2014-2020 Operational Programme for Spain, version 1.1, p.51.1097 Art. 111, Fisheries Control Regulation.


Data received by the Spanish FMC shall be exchanged in real time with other countries1098. Further-more, some legal provisions reflect this obligation to exchange data, such as Order ARM/3145/2009 of 9 November regulating the creation of data electronic transmissions and register concerning the activity of Spanish fishing vessels. In its Article 5.2, which relates to the reception of communication from the DGRPA, addresses this issue:

The Directorate General for Fisheries and Aquaculture Resources shall also be in communication with the single authority foreseen in Article 17 of Commission Regulation (EC) 1077/2008, and with other Member States, to receive the information on fishing activities referred to in Articles 7 and 8 of this order, on European fishing vessels that are carrying out activities in waters subject to Spanish jurisdiction or landing in Spanish ports, or to transmit information on fishing activity of Spanish vessels when they are operating in the waters of the MS in question.

Another example is found in the Preamble of RD 418/2015 of 29 May 2015, on first sale of fishery products, which states that:

The Ministry of Agriculture, Food and Environment should facilitate the electronic exchange be-tween national and European Administrations of the information corresponding to the documents referred to in this RD, according to Article 58.4 of Regulation (EC) no 1224/2009 of 20 November 2009.

To this purpose, the coordination between AA.CC and the General Secretariat for Fisheries is necessary, in a way that the information generated by auction centres and authorized establish-ments is held by all the competent authorities within a period of 24 hours. To this end, the General Secretariat for Fisheries will make available to the AA.CC, the concessionaires of auction centres and authorized establishments and other operators a common computerized information system.

Together with the exchange of data, MS were required to create before 1 January 2012 an official website through the Internet where to include and maintain up-to-date all necessary data for pur-poses of control. This official website shall have a publicly accessible part1099 and another secure site1100. The information to be included in this official website is reflected in the table below:

Table 49: INFORMATION TO BE INCLUDED IN THE OFFICIAL WEBSITE

Publicly accessible part Secure part

� The names and addresses of the competent authorities for issuing fishing licenses and fish-ing authorizations;

� The list of designated ports for the purpose of transhipment (article 20, Fisheries Control Reg-ulation), specifying their operating hours;

� One month after the entry into force of a multian-nual plan, and after approval of the EC, the list of designated ports for landing (article 43, Fisheries Control Regulation) specifying their operating hours, and the associated condi-tions for recording and reporting the quantities of species under the multiannual plan for each landing;

� The lists of officials in charge of inspections; � The electronic database for the treatment of

inspection and surveillance reports drawn up by the officials;

� VMS computer files recorded by its FMC; � The electronic database containing the list

of all fishing licences, and fishing authoriza-tions issued and managed in accordance with this Regulation, with a clear indication of the conditions set out and the information on all sus-pensions and withdrawals;

� The way of measuring the continuous period of 24 hours;

1098 Source: http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/.1099 Article 148 of the Implementing Regulation provides instructions on the design and content of the publicly accessible part of the official website.1100 Article 149, Ibid provides instructions on the design and content of the secure part of the official website.

http://www.magrama.gob.es/es/pesca/temas/control-e-inspeccion-pesquera/control-actividad-pesquera/


Continuation

Publicly accessible part Secure part

� The decision establishing the RTCs, and defin-ing clearly the geographical area of the affected fishing grounds, the duration of the closure and the conditions governing fisheries in that area during the closure;

� The contact point details for the transmission or submission of fishing logbooks, prior noti-fications, transhipment declarations, landing declarations, sales notes, take-over declara-tions and transport documents;

� The map with the coordinates of the area of temporary RTCs as referred to in Article 54, specifying the duration of the closure and the conditions governing fisheries in that area dur-ing the closure;

� The decision to close a fishery by a MS as well as all relevant details.

� An electronic database that contains all relevant data on fishing opportunities (registry of catch-es and fishing efforts);

� National control action programmes to each multiannual plan;

� Electronic database for the purpose of verifying the completeness and quality of the collected data referred to in Article 109 of Fisheries Con-trol Regulation.

Source: Fisheries Control Regulation

The EC or the bodies designated by it shall have access to both parts of the official website1101 based on electronic certificates. Also, in relation to the web services included in the secure part, the EC shall have access to the storage database as well as to the validation results1102. Finally, the electronic exchange of information with other MS should also be guaranteed.

The MAGRAMA website contains some of the information required to be included in the publicly accessible part. However, according to MAGRAMA sources, at the end of July 2015 this website was almost going to be launched. Nevertheless, this website has not been created yet in Spain1103.

2.13.3. access To daTa and iTs limiTaTions

The Fisheries Control Regulation, although it does not intervene on the level of protection of indi-viduals when regarding the treatment of personal data, it requires the EC and MS to adopt the necessary measures to ensure that collected and received data are treated in accordance with applicable rules on commercial and professional secrecy.

Therefore, once the control rules are applied, access to information and generated data may be limited by the application of the legislations on the protection of personal data1104 and rules on busi-ness confidentiality and professional secrecy. It is important to emphasize that the personal data protection system only applies to natural and not legal persons. The Implementation Regulation defines “commercially sensitive information” as “information the release of which is likely to preju-dice the commercial interests of an operator”1105.

1101 Arts.110 y 116, Fisheries Control Regulation.1102 Art. 146, Implementing Regulation.1103 An example of this official website is the Italian one available online at: https://www.controllopesca.politicheagricole.it/flex/cm/pag-es/ServeBLOB.php/L/IT/IDPagina/1. This website counts with a publicly accessible part and a secure part. 1104 The European Data Protection Supervisor issued two opinions regarding the regulations of the CFP Control: Opinion of the European Data Protection Supervisor on the proposal for a Council regulation establishing a Community control system to ensure compliance with the rules of the Common Fisheries Policy (OJ C 151 of 03.07.2009) and an Opinion of the European data Protection Supervisor on the Commission Implementing Regulation (EU) No 404/2011, which establishes the rules for implementing Regulation (EC) No 1224/2009, establishing a Community control system to ensure compliance with the rules of the Common fisheries Policy (OJ C 37 of 10.02.2012).1105 Art. 2.16, Implementing Regulation.

https://www.controllopesca.politicheagricole.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/1

https://www.controllopesca.politicheagricole.it/flex/cm/pages/ServeBLOB.php/L/IT/IDPagina/1


As indicated at the beginning of this section, one of the principles of good governance which must guide the CFP is:

Transparency of data handling in accordance with existing legal requirements, with due respect for private life; the protection of personal data and confidentiality rules; availability of data to the appropriate scientific bodies, other bodies with a scientific or management interest, and other defined end-users.

In addition to the respect of the applying law concerning the protection of personal data and con-fidentiality rules on business and commercial secrecy, it is necessary to take into account the implementation of the rules on transparency and access to environmental information, which already has exemptions for the access to information. The information resulting from the implementation of the CFP is information falling within the category of environmental information, if taking into account its definition1106 and the objectives pursued by the CFP1107.

Access to information, including access to data, is a matter of great importance given that the cor-rect implementation of the law also requires a high level of transparency.

2.13.4. access To informaTion

Freedom of information contained in Article 111108 of the Charter of Fundamental Rights of the Euro-pean Union1109 and in Article 10 of the European Convention of Human Rights (ECHR)1110, protects not only information sharing but its reception. It is evident the importance of the transparency of governments for the functioning of a democratic society. As a result, in the last two decades, the right of access to information and documents held by public authorities has been recognized as an important right of EU citizenship, concerning both natural and legal persons, living or having a registered office in a MS1111.

Within the EU, the main policy instruments in this area are the following:

1106 “Environmental information means any information in written, visual, aural, electronic or any other material form on: the state of the elements of the environment, such as air and atmosphere, water, soil, land, landscape and natural sites including wetlands and coastal and marine areas, biological diversity and its components, including genetically modified organisms, and the interaction among these elements; factors, such as substances, energy, noise, radiation or waste, including radioactive waste, emissions, discharges and other releases into the environment, affecting or likely to affect the elements of the environment referred to in point a); measures (including administrative measures) such as policies, legislation, plans, programs, agreements on environment and activities affecting or likely to affect the elements and factors referred to in points a) and b), as well as activities or measures to protect those elements; reports on the implementation of environmental legislation; Cost-benefit analysis and other economic analyses and assumptions used within the framework of the measures and activities referred to in subparagraph c) relationship; and the state of the health and safety of persons, including, where appropriate, the contamination of the food chain, conditions of human life, cultural sites and built structures inasmuch as they are or may be affected by the state of the elements of environment referred to in point a) or, through those elements, by any of the matters referred to in subparagraphs b) and c).” (Art. 2.1. Directive 2003/4/EC).1107 According to Article 2 of the Regulation of the CFP, within its objectives of the CFP it has been guaranteed that fishing and aquacul-ture activities are environmentally sustainable. The CFP applies the precautionary approach, which follows the precautionary principle Article 191 TFEU, and an ecosystem approach to fisheries management. It must also be consistent with EU environmental legislation, in particular with the aim of achieving good ecological status by 2020 in accordance with Directive 2008/56/EC of the European Parliament and the Council of June 17, 2008, establishing a framework for Community action in the marine environment policy (under the Marine Strategy Directive) (OJ L 164 of 25.06.2008).1108 This article states: “Everyone has the right to freedom of expression. This right includes freedom to hold opinions and freedom to receive information and ideas without interference by public authority and regardless of boundaries”.1109 This Charter has the same legal status as EU treaties (art. 6.1 TEU).1110 The first paragraph of this article is identical to art. 11 of the Charter.1111 Article 15.3. TFEU provides that: “Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to documents of the Union’s institutions, bodies, offices and agencies, whatever their medium, subject to the principles and the conditions to be defined in accordance with this paragraph”.


1) Regulation (EC) No 1049/2001 of the European Parliament and Council of 30 May 2001 regarding public access to European Parliament, Council, and Commission docu-ments1112.

2) Regulation (EC) No 1367/2006 of the European Parliament and Council of 6 September 2006, regarding the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environ-mental Matters to Community Institutions and bodies1113, known as the Aarhus Regulation.

3) Directive 2003/4/EC of the European Parliament and the Council of 28 January 2003 on public access to environmental information and repealing Directive 90/313/EEC1114.

The main legislation on transparency within the Spanish legal system is:

1) Law 19/2013 of 9 December on transparency, access to public information and good governance1115 (Transparency Law) and

2) Law 27/2006 of 8 July, on the regulation of the rights on access to information, public participation and access to justice in environmental matters1116.

This national law provides for the right to access public information1117 upon request1118, as well as the right to environmental information either through its dissemination by public authorities as well as through its prior request1119.

This regulation also contains a number of limitations on the right to access that information; including cases in which such access to information may negatively affect personal data of an individual1120 or the confidentiality of data of commercial character and professional secrecy1121.

It is very important to take into account the interpretation of these limitations or exemptions for the access to information shall be undertaken in a restrictive manner. That is, this limitation shall not be applied absolutely, being required to weigh the public interest served by disclosure against the interest served by the refusal1122. Furthermore, the use of these exemptions must be justified and proportionate1123. Finally, partial access to information shall be granted when the limitations affect some part of the information requested, unless this information results to be distorted or meaning-less as a result1124.

2.13.4.1. Protection of personal data

The right to the protection of personal data is one of the rights outlined in Article 8 of the ECHR,

1112 OJ L 145, of 31.5.2001.1113 OJ L 264, of 25.9.2006.1114 OJ L 41, of 14.2.2003.1115 BOE. No. 295, of 10.12.2013.1116 BOE. No.171, of 19.07.2006.1117 “It is understood by public information, all contents or documents, whatever their format or medium, which are held by any of the subjects included in the scope of this title (e.g.: AGE, Administration of AA.CC, autonomous bodies, state agencies ...) and have been produced or obtained in the exercise of their functions” (Art. 13 Transparency Law).1118 Art. 17, Transparency Law.1119 Arts. 6,7 and 10, Law 27/2006.1120 Art. 15, Transparency Law and Art. 13.2.f), Law 27/2006.1121 Art. 14.1 h) and j), Transparency Law and Art. 13.2.d), Law 27/2006.1122 Art. 13.4, Law 27/2006.1123 Art. 14.2, Transparency Law.1124 Art. 16, Transparency Law and Art. 14, Law 27/2006.


which guarantees the right to respect private and family life, home and correspondence, and also establishes the conditions for the application of restrictions to these rights1125. Furthermore, Article 8 of the EU Charter of Fundamental Rights provides:

“1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.”

It is necessary to take into account that the protection of the right to personal data is not an absolute right and its exercise should be weighted taking into account the exercise of other rights1126.

Table 50: RULES ON THE PROTECTION OF PERSONAL DATA1127 1128 1129 1130

EU Spain

Directive 95/46/EC of the European Parliament and the Council of 24 October 1995, on the pro-tection of individuals with regard to the processing of personal data and on the free movement of such data1127.

Regulation (EC) No. 45/2001 of the European Parliament and Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies of the Community and on the free movement of such data1128.

Law 15/1999 of 13 December, on the Protection of Personal Data1129.

RD 1720/2007 of 21 December on the approval of the regulation developing Law 15/1999 of 13 December on the protection of personal data1130.


“Personal data” is defined as any information concerning identified or identifiable natural persons1131.

The Fisheries Control Regulation provides in relation to the exercise of the people’s rights when concerning their registered data treated by national systems, that this rights shall be exercised in accordance with the MS legislation where this data is recorded. Therefore, when regarding data recorded by Spanish authorities it shall apply to the provisions contained in Law 15/1999 as well as in RD 1720/1999 which develops the former. It is excluded from the protection regime of personal data:

1125 Art. 8.2, ECHR: “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the as provided for by law and is necessary, in a democratic society in the interests of , for national security, public safety or the, national economic well-being, the defense of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.1126 The fundamental right to protection of personal data under Article 8 of the Charter “is not absolute, but must be considered in relation to its function in society” ECJ Joined Cases C 92/09 and C 93/09, Volker and Markus Schecke GbR and Hartmut Eifert v. Land Hessen, 9 November 2010, para. 48.1127 OJ L 281, of 25.11.1995.1128 OJ L 8, of 12.1.2001, p.8.1129 BOE No. 298, of 14.12.1999.1130 BOE No. 17, of 19.01.2008.1131 Art. 3 a), Law 15/1999. Art. 5.1.o) of RD 1720/1999 defines “identifiable person: any person who can be identified, directly or indi-rectly, through any information regarding his physical, physiological, mental, economic, cultural or social identity. An individual shall not be deemed identifiable if such identification requires disproportionate amounts of time or energy”.


� The processing of data relating to legal persons and of files limited to incorporate data of those individuals who provide services for such entities only based on their names and surnames, functions or positions developed, as well as their professional addresses, emails, telephones, or fax numbers.

� Data on individual employers, when referring to them in their role as traders, entrepre-neurs, or ship-owners1132, will also be excluded from the protection regime of personal data.

Taking into account this exclusion from the protection regime of personal data, the Spanish Data Protection Agency (AEPD) has stated the following1133:

“...The protection afforded by Law 15/1999, of 13 December, on the Protection of Personal Data is not applicable to legal persons who do not benefit from any of the guarantees established by the law, and by extension this will also apply to professionals who organize their business activities in the form of a company (consequently flaunting the commercial status referred to in Articles 1 and the following articles from the Commercial Code) and also to individual entrepreneurs who participate in commercial activity, for which it is possible to differentiate his/her business from his/her own private activity, being in the first case also excluded from the scope of Law 15/1999.

Therefore, ultimately, legal persons, professionals and sole traders (the latter two only under the strict terms set forth in the preceding paragraph, that is, when the data has been processed only under the consideration of entrepreneurs) are outside the protection scope of Law 15/1999”.

Therefore, the restrictions to the access of information foreseen in the Fisheries Control Regulation shall apply in accordance with this legislation.

2.13.4.2. Confidentiality and commercial secrecy

As noted, the Implementing Regulation defines “commercially sensitive information” as “infor-mation the release of which is likely to prejudice the commercial interests of an operator”. Trade secrecy refers to any information that gives a company a competitive edge and covers industrial, manufacturing, or trade secrets. Professional secrecy (that held by doctors, journalists, lawyers, accountants, bankers, etc.) refers to the confidential information provided during a service which requires a certain scientific or technical knowledge from the professional.

The Second Additional Provision of Order APA/3660/2003 of 22 December establishes that “all infor-mation on the movements and activities of vessels obtained through the satellite tracking device system regulated in this provision shall be strictly confidential, and its sole purpose shall be to con-trol fishing activities through the competent authorities.” We believe that this call to confidentiality is made under very general terms and when applied against the right on access to information, it is necessary to take into consideration the entire existing legal framework.

Article 113 of the Fisheries Control Regulation contains some rules which limit in some manner the right on access to information1134:

“4. Data communicated in the framework of this Regulation to persons working for competent

1132 The terms of ship owners and shipping are considered interchangeable. It is considered as owner or operator of any natural person or legal commercial exploitation, that is, whoever is the owner of the shipping company or merchant-maritime, either the ship is of their property or owned by other. 1133 Legal report of the AEPD Scope of the data protection legislation. Application to individual entrepreneurs and “contact persons (Art. 2.2 and 2.3 of the Regulation)”, 2008.1134 Art. 113.4, Fisheries Control Regulation.


authorities, courts, other public authorities and the Commission or the body designated by it, the disclosure of which would undermine:

i. the protection of the privacy and the integrity of the individual, in accordance with Commu-nity legislation regarding the protection of personal data;

ii. the commercial interests of a natural or legal person, including intellectual property;

iii. court proceedings and legal advice; or

iv. the scope of inspections or investigations;

shall be subject to applicable rules on confidentiality. Information may always be disclosed if this is necessary to bring about the cessation or prohibition of an infringement of the rules of the common fisheries policy.”

Therefore, to deny access to information it is necessary to show the undermining that the disclosure of that information would entail. Furthermore, the Fisheries Control Regulation also provides for the disclosure of information if that entails the cessation of an infringement committed.

Likewise, the provided restrictions “shall not be construed as an obstacle to the use of the data, obtained pursuant to this Regulation, in the framework of legal actions or proceedings subsequent-ly undertaken for failure to respect the rules of the common fisheries policy”1135.

Taking into account what established by the Fisheries Control Regulation, the exercise of the right on access to data and information resulting from the application of the fisheries control system can represent a matter of legal conflicts, given that the limitations envisages are far too restrictive if compared with the existing legal framework concerning that right. We must not forget that in other economic sectors, such as industrial activity, despite from the commercial secrecy and the law on patents, the right to access to information also must apply. For instance, inspection reports are required to be publicly accessible within four months from the inspection in situ1136. Also in the Spanish Register of Emissions and Pollutant Sources, which is of public character, it is possible to have access to the integrated environmental permits and get to know the production procedures of an industrial facility or the emission of pollutants of each facility.

1135 Art. 113.6, Ibid.1136 Art. 23.6, Directive 2010/75/EU of the European Parliament and the Council of 24 November 2010, on industrial emissions (OJ L 334, of 17.12.2010, p.17).


Data and Information

The implementation of the Fisheries Control Regulation generates a significant amount of information and data that can be very useful not only for purposes of controlling the CFP. Such data and information, apart from being included in a database, must be subject to CVS.

Spain has established the databases and the CVS. However, the latter must be strength-ened.

One of the tools for accessing to data is the official website which counts with a public-ly accessible part and a secure one. This official website has not been established in Spain yet.

Access to data is regulated in a very restrictive manner under the Fisheries Control Regulation. However, these limitations should be interpreted in accordance with other applicable legislation such as the regulations concerning transparency and access to environmental information.

226

D. Conclusion

As it has been analyzed in this document, the Fisheries Control Regulation and its Implementing Regulation have established an exhaustive regime in order to guarantee compliance with the CFP.

In some cases, this regime poses certain inconsistencies with other applicable EU legal systems. Thus, for example, confidentiality norms regarding the access to data generated from the applica-tion of the control regulations, represent a threat to the right of access to information. In the case of data referred to legal persons, it is excluded from the legal regime of data protection. However, the Fisheries Control Regulation pretends to restore it. Likewise, in the case of inspection reports, these should be of public access as it happens in other fields, such as environmental inspections on industrial systems. Such strict confidentiality norms obstruct the necessary transparency in the current European society.

Even though both Regulations are directly applicable, they require the adoption of legal instru-ments. It could be asserted that Spain has adopted a number of legal instruments that reflect and in some cases, develop with more detail the obligations set by said Regulations. Furthermore, it has to be taken into account that despite it is not necessary, in some cases, to reflect the obligations of an EU regulation in the legal system of a MS, it is necessary to carry out actions to ensure it is implemented correctly. In the Spanish case, as a consequence of the Action Plan approved by the EC in 2012, many legal deficiencies of the Spanish fisheries control system have been corrected. Nevertheless, it is still necessary to carry out certain actions to complete its implementation, such as the creation of an official website, regulated in Chapter III, of Title XII of the Fisheries Control Regulation1137. These types of EC Plans, have very positive effects on the effective implementation of the European regulation on fisheries by Spain, and could serve as a precedent to encourage accomplishment from other MS of other EU legal instruments, such as the ones specifically directed to environmental protection.

Although the majority of the obligations are correctly reflected by Spanish laws, and in the cases where they are not it should be taken into account that they are of direct applicability, there are some inconsistencies with the European regulations. Thus, for example, in relation with fishing authorisa-tions, article 25.2 of the State Maritime Fisheries Law allows to give a special collective permit to a group of vessels whilst the Implementing Regulation sets that an authorisation is only valid for one

1137 See section 2.13.2 of this document.

CHAPTER 4 / CONCLUSION / Page 227

single vessel1138. Another example lies in RD 114/2013 of 15 February which creates and regulates the national registry of serious infringements to the CFP, establishes the rules of implementation of the point system and updates the quantities of the sanctions provided by Law 3/2001 of 26 march of State Maritime Fisheries, as it only provides the inclusion in the National Registry of Fishing Vessels of those permits that have been retired whilst the European Registry of Vessels also provides for the inclusion of the permits that have been suspended.

On the other hand, some obligations have been regulated in a stricter manner by the Spanish legal system. For example, a fishing authorisation is always obligatory when carrying out fishing activities in waters outside the Spanish jurisdiction, although this is not mentioned in the Fisheries Control Regulation1139. RD 418/2015 of 28 may of first sales, also sets a stricter regulation by establishing the obligation to transmit by electronic mechanisms the sales notes of first sales whose value is lesser or higher than 200.000 Euros in a 24 hour time-span, whilst the Fisheries Control Regulation provides a 48 hours time-span in the first case. Although the Fisheries Control Regulation recom-mends transmitting the sales notes by electronic mechanisms, this RD sets an obligation for the transmission is done electronic mechanisms1140.

With regards to some concrete obligations, certain stakeholders to which this project was addressed deem that the obligations set by the regulations of the CFP are excessively strict and particulari-ties of each fleet and fishery should be regarded, e.g.: comply with a tolerance margin of the 10% between quantities provided in the fishing logbook or the transhipment declaration and the quanti-ties which were really landed, as it is very difficult to fulfil this obligation in the Mediterranean Sea, where there is a high level of species. Meanwhile, for other obligations, stakeholders deem that the Fisheries Control Regulation is excessively flexible, e.g.: the majority of them are dissatisfied and consider that the control measures applicable to recreational fishing are insufficient, especially regarding bans in the marketing of catches.

However, in general, they value positively the control instruments established in both Regulations. Thus, both the use of technologies such as the VMS, the electronic data logbook or the verifica-tion information system of data are tools which facilitate this efficiency, as well as the strategies based on risk management using cross-checking procedures of all available data in a systematic and comprehensive way. Likewise, they consider that since the entry into force of the Regulations, the implementation of the CFP has improved. Even though Fisheries Control Regulation is can be improved, it has been and is a valuable tool to achieve the objectives of the current CFP. The fact that Spain has adopted, for the most part, the measures for the correct implementation of the Con-trol Regulation means we can contribute positively to reach such aims.

Nevertheless, and in line with the FEMP Operational Programme for Spain (2014-2020), it is still necessary to continue reinforcing the fisheries control measures, both to improve the collection of and access to data (enhancing the collection of data of certain fisheries and of the impact of recre-ational fishing, enhancing access and availability of data by the operator or the civil society, among others) and to improve human and technical means for control and inspection activities (enhanc-ing the interconnection between different databases through computing applications, reinforcing verification information systems, increasing human resources for control and inspection, raising awareness within fishing professionals and civil society and increasing the number of inspections,

1138 See section 1.2 paragraph C of this document.1139 See section 1.2 paragraph C of this document.1140 See section 2.6.3 of this document.

CHAPTER 4 / CONCLUSION / Page 228

among others). We consider that together with these administrative mechanisms, it is necessary that members of the judiciary have sufficient training in this matter, given that administrative pro-cedures may fail in the implementation of control mechanisms. Thus, court proceedings play a relevant role.

Review, improvement and constant reinforcement of the fisheries control measures that are current-ly being implemented, are without a doubt, necessary to guarantee a permanent improvement in the achievement of the objectives of the current CFP.

Bibliography

Balk D., Montgomery M., McGranahan G., 2014 “Coastal Demography: Distribution, Composition and Dynamics” en: Bowen R.E. et al. (Ed.) (2014). Oceans and Human Health: Implications for Society and Well-Being ed. Bowen R.E. et alia, John Wiley and Sons, Chichester. p. 49-69.

Barreira, A. Implementation of and compliance with international commitments: an imperative for Rio+20, file with the author.

Barreira, A. Public participation in MEAs compliance: A proposal to improve the Institutional Frame-work for Sustainable Development, en Outreach, March 2012.

Beddington, J.R. y R.B. Rettig, Criteria for regulation of fishing effort. FAO Fisheries Technical Doc-uments, No. 243, 1984.

Churchill R., Owen D., 2010, The EC Common Fisheries Policy, Oxford University Press, Oxford, p.6-7.

Díez Patier, E. Historia de la Política Pesquera Comunitaria (lecture given in the seminar “Analysis of the fisheries sector. Effects of the Spanish integration in the EEC”, Universidad Internacional Menéndez Pelayo, La Coruña, 22-27.07.1985), Revista de Estudios Agrosociales, No. 134, 1986.

Directorate General for Internal Policies, Policy Department B: Structural and Cohesion Policies,Re-al Time Closure of Fisheries.

Ebbin S.A., Hoel A.H., Sydnes A.K., A Sea Change: The Exclusive Economic Zone and Governance Institutions for Living Marine Resources, Ed. 2005, Dordrecht, Springer.

FAO, Fisheries Management. Technical Guidelines for Responsible Fisheries No 4, Roma, 1999.

FAO, Fisheries Operations, 1. Vessel Monitoring Systems. Technical Guidelines for Responsible Fisheries No.1, Supl. 1.

FAO, The use of technical measures in responsible fisheries: regulation of fishing gear. A fishery Manager´s Guidebook-Management Measures and Their Application. Fisheries Technical Paper No 424, Roma, 2005.

FAO, World inventory of fisheries. Retrieval of lost gear. Issues Fact Sheets. FAO, Fisheries and Aquaculture Department, Roma, May 2005.

FAO, PNUMA, “Abandoned, lost or otherwise discarded fishing gear” FAO, Fisheries and Aquacul-ture Technical Paper No. 185. Roma, 2011

EMFF 2014-2020 Version 1.1. Operational Programme for Spain.

Froese R., Quaas M., Rio+20 and the reform of the Common Fisheries Policy in Europe Marine Pol-icy No. 39, 2013.

Greenpeace, Report “Empleo a Bordo: análisis del empleo en el sector pesquero español y su impacto socioeconómico”.

Hardin, G. The Tragedy of the Commons, Science 13, December 1968, Vol. 162 No. 3859 p. 1243-1248.

Hinz H, Murray L.G., Lambert G.I., Hiddink J.G., Kaiser M.J., Confidentiality over fishing effort data threatens science and management progress, Fish and Fisheries, Marzo 2013, Vol. 14, No.1, March 2013.

House of Lords, Memorandum by the Spanish Government, Minutes of Evidence, European Union Twenty First Report No. 7, May 2008.

Iborra Martín, Jesús, El exceso de la capacidad pesquera en la reforma de la Política Pesquera Común, European Parlament, December 2012.

Khalilian S., Froese R., Proelss A., Requate T. Designed for failure: A critique of the Common Fish-eries Policy of the European Union, Marine Policy, Vol. 34, No. 6, Nov. 2010.

Lackey, R. T. 2005. Fisheries: history, science, and management. p. 121-129. En: Water Encyclope-dia: Surface and Agricultural Water, Lehr J.H. y Keeley J., editors, John Wiley and Sons, New York, p.121-129.

Lutchman I., Grieve C., des Clers S., De Santo E., Towards a Reform of the Common Fisheries Pol-icy in 2012 – a CFP Health Check, IEEP, London, 2009.

Ministry of Agriculture, Food and Environment 2011 Annual Report.

Ministry of Agriculture, Food and Environment 2013 Annual Report.

Ministry of Employment and Social Security, “Aparejos de pesca abandonados, perdidos o des-cartados. Una amenaza para los ecosistemas marinos y la navegación”, Revista Mar, No. 533, January 2014.

Orrego Vicuña, F., The Changing International Law of High Seas Fisheries: From Freedom of Fishing to Sustainable Use, Cambridge University Press, Cambridge, 1999.

Sissenwine M., Symes D., Reflections on the Common Fisheries Policy, Report to the General Direc-torate for Fisheries and Maritime Affairs of the European Commission. 2007.

The European Commission Directorate - General for Fisheries and Maritime Affairs, Recuperation of fishing nets lost or abandoned at sea, Studies and Pilot projects for carrying out the common fisheries policy .Final Report FISH/2006/15/Lot No. 5 September 2009.

UE, Facts and figures of the Common Fisheries Policy. Basic Statistical Data. Ed. 2014, ISBN 978-92-79-34193-9.

Vilar Hernández, J., Stahnke, W. B., y Nuñez Torres, S., “Sistemas de gestión de la calidad en el sector agroalimentario”, Agroalim, Vol.9, No 18, 2004, p. 87-93.

Annex I. List of illustrations and tables

Illustrations

Illustration 1. The fishing fleet in the EU .......................................................................................................... 30

Illustration 2. Catches in the EU ....................................................................................................................... 31

Illustration 3. Functioning of the Vessel Monitoring System (VMS) ......................................................... 63

Illustration 4. Blue box or VMS device ............................................................................................................ 64

Illustration 5. Functioning of the VMS ............................................................................................................. 66

Illustration 6. Architecture of the Spanish FMC ............................................................................................ 67

Illustration 7. Calendar for the implementation of the landing obligation ............................................... 76

Illustration 8. Power measuring kit ................................................................................................................. 119

Illustration 9. Traditional fishing gear ............................................................................................................. 132

Illustration 10. Catch communication concerning blue-fin tuna in the modality of recreational fish-eries ............................................................................................................................................ 147

Illustration 11. Herrera species put into lots prior to first sale in an auction Centre ......................... 153

Illustration 12. Weighing of lots of fish .......................................................................................................... 160

Illustration 13. Auction centre .......................................................................................................................... 162

Illustration 14. Design of sales note ............................................................................................................... 164

Illustration 15. Inspection of fishing gear ...................................................................................................... 184

Illustration 16. Inspection at sea ..................................................................................................................... 187

Tables

Table 1. Distribution of competences in fisheries matters ........................................................................ 45

Table 2. Competent bodies of the Autonomous Communities in Fisheries Control .......................... 52

Table 3. Rules on gear and crafts .................................................................................................................... 60

Table 4. Data to be transmitted automatically and periodically to the FMC ........................................ 65

Table 5. Vessels under permanent satellite-tracking .................................................................................. 68

Table 6. Data broadcasted by the AIS ........................................................................................................... 71

Table 7. Amendments of Articles 14.1 and 14.4 of the Fisheries Control Regulation ....................... 77

Table 8. Ways to delimitate time depending on the fishing gear ............................................................. 78

Table 9. Rules for completion of the logbook in printed format .............................................................. 79

Table 10. Completion and submission of the transhipment declaration in printed format ............... 82

Table 11. Completion and submission of the landing declaration in printed format .......................... 86

Table 12. Transmission of data from DEA, transhipment declaracion and landing declaration ...... 91

Table 13. Frequency of data transmission from fishing logbooks, transhipment declarations, and landing declarations in electronic form on failure or non-functioning of electronic recording and reporting systems .................................................................................................. 93

Table 14. Regulation for the control in port of the bluefin tuna fishery .................................................. 95

Table 15. Regulatory instruments governing the control of fishing effort in Spain ............................. 98

Table 16. Rules for the allocation of fishing effort to fishing gear and geographical area .............. 100

Table 17. Regulation of the obligation to notify fishing gears ................................................................. 101

Table 18. ECA’s recommendations to address the excess of the fishing fleet capacity ................. 108

Table 19. BHP depending on the length of vessels ................................................................................. 115

Table 20. EU Regulation on the verification of engine power ............................................................... 116

Table 21. General Classification of Fishing Gear ....................................................................................... 128

Table 22. Fisheries with stricter regulations than those established in the Fisheries Control Regulation ......................................................................................................................................... 130

Table 23. Measures of control for Restricted Fishing Areas ................................................................... 135

Table 24. Procedures to Order an RTC ....................................................................................................... 138

Table 25. Competent authorities to issue recreational fishing licenses ............................................... 140

Table 26. Fishing Gears and Prohibitions by Type of Recreational Fisheries ..................................... 143

Table 27. AA.CC Legislation ........................................................................................................................... 149

Table 28. Objectives during the Marketing process ................................................................................. 151

Table 29. General principles for the identification of fishery products ................................................. 155

Table 30. Minimum requirements on labeling and information ............................................................. 156

Table 31. Obligation to submit a copy of the sales note ......................................................................... 164

Table 32. Contents of the sales notes .......................................................................................................... 167

Table 33. Content of the take-over declaration ......................................................................................... 169

Table 34. Content of the transport document ........................................................................................... 171

Table 35. Content of a surveillance report .................................................................................................. 175

Table 36. Content of a control observer report .......................................................................................... 177

Table 37. Scope of the inspection activity in external waters ................................................................ 181

Table 38. Inspection functions in the AA.CC .............................................................................................. 182

Table 39. Scope of control of the inspection activity ............................................................................. 185

Table 40. Inspection Proceedings depending on the place of inspection .......................................... 187

Table 41. obligation during inspection phase ............................................................................................. 189

Table 42. Assignments and obligations of EU Inspectors ...................................................................... 193

Table 43. Inspections of fishing vessels by Spanish authorities outside the waters of the inspecting Member State ................................................................................................................................... 194

Table 44. Competent Government Delegates for initiating an infringement procedure .................. 200

Table 45. Sanctioning procedure within maritime fisheries in external waters .................................. 202

Table 46. Types of sanctions depending on the infringement ............................................................... 205

Table 47. The computerized validation system .......................................................................................... 216

Table 48. Data to be electronically exchanged between the MS and the EC .................................. 218

Table 49. Information to be included in the official website .................................................................... 219

Table 50. Rules on the protection of personal data .................................................................................. 223

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Documents

Enforcing the Common Fisheries Policy: The Implementation of …€¦ · Fisheries Policy: The Implementation of the EU Control Regulation in Spain”, Madrid: Instituto Internacional