The Common Fisheries Policy
UK fisheries are managed under the EU’s Common Fisheries Policy (CFP). This provides for:
– Shared access for EU vessels to all Member States’ waters, meaning other Member State vessels have access to UK waters and UK vessels have access to other Member State waters;
– Total Allowable Catch (TAC) and quota for key fish stocks for each Member State to be agreed annually in December between EU Member States, as well as limits on days at sea (effort) for non-quota stocks; and
– Directly applicable fisheries management legislation, including on detailed technical measures and control and enforcement.
The European Commission represents the EU including the UK in negotiations with third countries on fisheries and international fisheries agreements.
Under the CFP, EU Member States have agreed to share access to one another’s’ Exclusive Economic Zones (EEZs) and territorial (inshore) waters in the following way:
– 0–6 nautical miles: national vessels only unless permitted under voisinage (neighbourhood) agreements between adjacent Member States. The UK has two such voisinage agreements:
– Granville Bay which allows French and Jersey vessels mutual access to each other’s territorial waters; and
– UK-Republic of Ireland which allows the Republic of Ireland and UK vessels mutual access to each other’s 0–6 mile limit.
– 6–12 nautical miles: national vessels and vessels from Belgium, France, Germany, the Netherlands and the Republic of Ireland, have access to specified areas of the UK 6–12 mile zone, for specified species. UK vessels have some reciprocal access to the 6–12 mile zones of France, Germany, the Netherlands and the Republic of Ireland. There is no third country access to the UK 6–12 mile zones; and
– 12–200 nautical miles: EU waters, shared access between all Member States.
Norway and the Faroe Islands are the only third countries to have access to the UK 12–200 mile zone for certain species. There is reciprocal access for UK vessels into Norwegian and Faroese waters.
Under the CFP, all fishing vessels undertaking the commercial exploitation of aquatic resources require an appropriate licence.
The devolved fisheries administrations, Crown Dependencies and (within England) the Marine Management Organisation (MMO) are responsible for the administration of their own vessels. The nationality of a vessel, and therefore which administration has responsibility for that vessel, is determined by the port of registry. Fishing vessels must adhere to the control and technical conservation conditions specified in the licence. The schedule and annexes of the licence specify where the vessel can fish and what quota limitations there are for different stocks.
The UK operates a restricted licensing scheme, whereby no new licences are created, thus capping the overall fishing effort. There are also different categories of licence and permits attached to the licence, to cap effort within certain sectors. The Government does not place any monetary value on a licence; however a market has developed in the trade of fishing vessel licences.
Quota setting and management
The objective of the CFP is for fishing to be environmentally, economically and socially sustainable.
Total Allowable Catch
Most fish stocks are managed through the setting of TACs and the sharing of quota between Member States. TACs cover 36 species split into 203 stocks, of which the UK has access to around 150.TACs are agreed following scientific advice provided by the International Council for the Exploration of the Sea (ICES). EU Member States and other countries that fish in the North East Atlantic, such as Norway, Iceland, the Faroe Islands and Russia, contribute to this advice by providing stock assessments produced by their national scientific bodies and by passing on catch data.
Although ICES makes recommendations for each TAC which reflect different management scenarios consistent with sustainable management of the stock, the TAC level is ultimately negotiated and agreed between the parties fishing the stock.
Fishing effort management
Non-quota stocks, such as shellfish, are managed under the EU Western Waters effort regime (Council Regulation 1954/2003) which establishes a framework for a fishing effort regime applicable to vessels 15 metres and over in length in Western Waters (all waters around the UK except the North Sea). The Regulation sets annual days at sea allocations for scallops, edible crab, spider crab and demersal species.
The objective of the Regulation is to limit the maximum amount of fishing effort that can be exerted in given areas, and control access of vessels to Member States’ sea areas (i.e. vessels can only fish in areas where effort has been allocated).
Fishing effort ‘swaps’
Additional effort can be obtained through ‘swaps’ with other Member States, for example in exchange for quota or adherence to closed fishing seasons. Effort swaps are more commonly utilised by the scallop sector rather than the crab sector, largely due to the fact that the majority of the scallop fleet are members of Producer Organisations, who can take forward swaps on behalf of industry and often hold the quota to do so.
Coastal State negotiations
International law, including the UN Convention on the law of the sea (UNCLOS) and the UN Fish Stocks Agreement (UNFSA), provide that coastal states control fisheries in their own EEZ, and must cooperate with one another other to manage shared fish stocks.
TACs and shares are agreed between the EU and interested countries e.g. bilaterally with Norway and the Faroe Islands, within the coastal states consultations framework, or within Regional Fisheries Management Organisations (RFMOs).
RFMOs are international organisations formed by countries with fishing interests in an area (and driven by obligations within UNCLOS and UNFSA). Some of them manage all the fish stocks found in a specific area, while others focus on particular highly-migratory species, notably tuna.
December Fisheries Council
The final TACs for each stock for the next year are agreed annually at the December Fisheries Council. This involves negotiations between each Member State and the Commission and the Presidency.
Once EU TACs have been set, they are divided between Member States in the form of national quotas. The EU distributes quota to Member States in accordance with a method known as ‘relative stability’ – this grants EU countries a fxed percentage of quota for each fish stock covered by a TAC. The relative stability shares were agreed in 1983, and are based on Member States’ historical fishing patterns dating back to the 1970s.
Member States then distribute their share of the quota between fishermen. This must be based on transparent and objective criteria. Following agreement at December Council, Defra allocates shares of the UK’s quotas to each of the UK’s four Fisheries Administrations. Allocations are based on Fixed Quota Allocation (FQA) units. Each unit entitles the FQA holder to a specific percentage share of a given stock. FQAs were allocated to vessel owners in 1999 based on historical fishing track records.
In the case of over 10-metre vessels, FQAs are attached to vessel licences. Most large vessels owners come together in cooperatives known as Producer Organisations which manage the quota for their members.
In the case of 10-metre and under vessels, the FQAs are managed as a pool by each Fisheries Administration. In England, this pool is managed by the MMO. Vessels are given monthly allocations and, based on the level of catches recorded, the MMO will make decisions on whether the levels of quota allocated each month need to be changed.
Trading of quota in UK and with the EU
FQAs can be bought and sold between vessels in the UK. Under the CFP it is also possible for Member States to trade quota directly with each other.
Management regime. The CFP has undergone a number of reforms since it was introduced. The most recent reform took place in 2013 and introduced a range of measures designed to conserve fisheries resources. These include a commitment to fish at maximum sustainable yield, a ban on discarding unwanted fish, and increased regionalisation of fisheries governance.
Key regulations in relation to EU fishing
The main legislation relating to fisheries includes:
– Council Regulation 1380/2013 on the CFP. Sets out how the CFP operates and includes overarching rules on setting of access and quota arrangements,conservation measures, the implementation of the landing obligation, regional cooperation, management of fleet capacity, data collection, scientific research, cooperation with third countries and regional management organisations, funding, marketing and control and enforcement;
– Council Regulation (EU) 2017/127 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters. This is the current annual regulation which sets out how much quota each Member State has for fish stocks in EU waters, third countries and waters managed by Regional Fisheries Management Organisations;
– Council Regulation (EU) 1379/2013 on the common organisation of the markets in fishery and aquaculture products, the European Union’s instrument for the management of the market for fishery and aquaculture products;
– Council Regulation (EC) 850/98 on the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms, sets out the technical conservation requirements under which fishers must operate within EU waters;
– Council Regulation (EU) 508/2014 on the EMFF, sets out financial measures to help achieve more sustainable fishing, helping communities to diversify their economies and creating new jobs in coastal communities;
– Council Regulation EC 1224/2009 establishes a Community control system for ensuring compliance with the rules of the CFP which provides a system for enforcing CFP rules and includes rules on the import of fish from third countries;
– Council Directive 2006/88/EC on animal health requirements for aquaculture animals, sets out the main requirements covering aquaculture production, which takes place in the UK and particularly in Scotland; and
– Council Regulation EC 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing (IUU Regulation), imposes obligations on third countries wishing to land fish into the EU and provides for countries and vessels to be blacklisted if they do not.
Environmental rules relevant to fishing include the following:
– The Habitats Directive (Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora) and the Wild Birds Directive (Directive 309/147/EEC. The Directive provides for Member States to create an EU system of protected sites, including in the marine area, and affords protection to certain marinespecies, such as cetaceans;
– The Marine Strategy Framework Directive (Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy). The Directive obligates Member States to designate protected areas and requires Member States to impose environmental controls to protect those areas; and
– The Water Framework Directive (WFD) (Directive 2000/60/EC of the European Parliament and of the Council establishing a framework for the Community action in the field of water policy)
Amongst the key objectives of the WFD is the requirementto integrate the management of surface water bodies (rivers, lakes, streams,estuaries and coastal waters) and groundwater (water in aquifers) to protect and enhance the environment.Existing frameworks
Following exit from the EU, the UK will continue to be subject to international law on fisheries management; this includes UNCLOS and UNFSA.
68. Under UNCLOS, Coastal states have jurisdiction over their EEZs (up to 200 miles offshore or the median line between Coastal States). The Coastal state has the right to exploit, develop, manage and conserve all the natural resources (including fish) found in the waters of the EEZ, and on the ocean floor and in the subsoil of its continental shelf. Contracting states must, however, coordinate/cooperate with other states where the same stock or stocks straddle two or more EEZs, the EEZ and the high seas, or where the stock is a highly migratory species, which is the case for virtually all stocks fished by the UK.
Both the EU and the UK are parties to this global agreement, a multilateral mixed agreement where each party owes separate obligations to the others.41 After exit, the UK will assume the rights and obligations currently exercised for it by the EU, including those related to fisheries.
UNCLOS is supplemented by UNFSA. Both the UK and the EU are Parties to UNFSA. Elaborating on UNCLOS provisions, UNFSA provides a more detailed framework for states to cooperate, either directly or through RFMOs, to ensure the conservation and management of fisheries resources within and beyond their EEZs. It covers straddling and highly migratory fish stocks.
In addition to such rules and standards, UN instruments including UN General Assembly resolutions on fisheries, the outcome of the UN Conference on Sustainable Development (‘Rio+20’ 2012) and Sustainable Development Goals (2015) contain political commitments, notably to fish sustainably, which are currently implemented through the CFP.
Bilateral Fisheries Agreements
The EU also has bilateral agreements with non-EU countries covering access and fishing opportunities. In the North Atlantic, the EU has fisheries agreements with Norway42 and the Faroe Islands43 on access and fishing opportunities. The agreement with Norway is the larger in terms of both the volume of fishing activity and the management of key stocks.
Fisheries Partnership Agreements
The EU also has a number of sustainable fisheries partnership agreements elsewhere, for example in Africa and the Indian Ocean. Under these agreements, the EU provides financial contributions (e.g. for sustainable development projects in the fisheries sector and to improvements governance structures in partner countries) in exchange for access to waters and fishing opportunities. The UK fishing industry benefits from these agreements to only a limited degree. The UK currently only have a direct interest in theagreement with Greenland.
In addition to fisheries access agreements, the EU is a party to trade and other agreements with a trade component both in the WTO context and bilaterally with certain countries and regions. In the last 15 years the EU has become more dependent on imports to meet its consumption of fish products (EU production covers only 44 per cent of the EU processors needs).45 Autonomous Tariff Rate Quotas (ATQs) ensure a steady supply of raw fish from third countries, duty free or subject to reduced duties, to the EU fish processing sector.
Sea fisheries is largely devolved. The CFP does not apply to the Crown Dependencies, Gibraltar or any of the Overseas Territories, but the Crown Dependencies fish as part of the UK fleet and have access to EU waters and land fish into EU ports.
Each Devolved Administration has control over its own commercial fishing fleets within a UK wide system. The Fisheries Concordat between the four Administrations deals with the management of the UK’s fish quotas and fishing vessel licensing.
The Crown Dependencies are not members of the EU and the CFP does not apply to them. However, certain aspects of EU law relating, in particular, to trade in goods and the Customs Union, do apply to the Crown Dependencies, as set out in Protocol 3 to the UK’s Treaty of Accession. The more detailed rules setting out conditions with respect to trade in agricultural products, including fisheries products, are set out in Regulation
Crown Dependency vessels are British-flagged and are treated as EU vessels when they land fish in an EU Member State (but only for that purpose). Although EU fisheries conservation measures do not apply directly to the Crown Dependencies under Protocol , they agree generally to comply with these under Fisheries Management Agreements (FMAs) with the UK. Under the terms of the FMAs, Crown Dependency catches of fish stocks to which the EU quota rules apply count against UK quota. The Crown Dependencies do not pay into or receive money from the EU, or UK, budgets, including the EMFF.
The CFP does not apply to the UK’s overseas territories (including Gibraltar). Overseas territories have quota free and duty free access to European markets for fish and fish products as well as preferential Rules of Origin and some direct financial assistance (Overseas Association Decision (2013/755). This is particularly beneficial for the Falkland Islands and Tristan da Cunha.