Quo Vadis Common Fisheries Policy? 9781119576860, 1051051061, 1119576865

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Quo Vadis Common Fisheries Policy?

Quo Vadis Common Fisheries Policy? Ernesto Penas Lado Brussels, Belgium

This edition first published 2020 © 2020 John Wiley & Sons Ltd All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, except as permitted by law. Advice on how to obtain permission to reuse material from this title is available at http://www.wiley.com/go/permissions. The right of Ernesto Penas Lado to be identified as the author of this work has been asserted in accordance with law. Registered Offices John Wiley & Sons, Inc., 111 River Street, Hoboken, NJ 07030, USA John Wiley & Sons Ltd, The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK Editorial Office The Atrium, Southern Gate, Chichester, West Sussex, PO19 8SQ, UK For details of our global editorial offices, customer services, and more information about Wiley products visit us at www.wiley.com. Wiley also publishes its books in a variety of electronic formats and by print-on-demand. Some content that appears in standard print versions of this book may not be available in other formats. Limit of Liability/Disclaimer of Warranty While the publisher and authors have used their best efforts in preparing this work, they make no representations or warranties with respect to the accuracy or completeness of the contents of this work and specifically disclaim all warranties, including without limitation any implied warranties of merchantability or fitness for a particular purpose. No warranty may be created or extended by sales representatives, written sales materials or promotional statements for this work. The fact that an organization, website, or product is referred to in this work as a citation and/or potential source of further information does not mean that the publisher and authors endorse the information or services the organization, website, or product may provide or recommendations it may make. This work is sold with the understanding that the publisher is not engaged in rendering professional services. The advice and strategies contained herein may not be suitable for your situation. You should consult with a specialist where appropriate. Further, readers should be aware that websites listed in this work may have changed or disappeared between when this work was written and when it is read. Neither the publisher nor authors shall be liable for any loss of profit or any other commercial damages, including but not limited to special, incidental, consequential, or other damages. Library of Congress Cataloging-in-Publication Data has been applied for: 9781119576860 Cover Design: Wiley Cover Images: © Igor_C/Shutterstock, © khlongwangchao/Shutterstock, © divedog/Shutterstock, © Dado Daniela/Getty Images, © Monty Rakusen/Cultura/Getty Images Set in 9/12.5pt MeridienLTStd by SPi Global, Chennai, India

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Contents

Preface

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Acknowledgments

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Disclaimer

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1 The common fisheries policy: stability or change?

Introduction: fisheries, a conservative world A distributional policy Policy change vs. policy stability Why do policies change? Legal change vs. policy change Does the CFP change too much or too little? Policy rigidity vs. policy flexibility: why is the CFP so rigid? Policy implementation and policy change: the challenge of implementing the 2013 reform The challenges of implementation The CFP’s legendary bad press The reformed CFP: success or failure? The notion of “policy success” in fisheries management Policy results: how good are they? Improving reporting of policy performance If the CFP is not so bad, why advocating policy change? References 2 The objectives of the CFP

Introduction The common fisheries policy in the Treaty Fisheries policy: a multi-objective policy The objectives in Article 39 of the Treaty Other legal principles applicable to the CFP Policy objectives in other countries The United States Australia New Zealand

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Norway The case for full exploitation of fishery resources Preventing overfishing or fully exploiting? Is under-exploitation positive? Is under-exploitation a realistic scenario in the CFP? The example of the US Under-exploitation in the EU? Under-exploitation vs. over-exploitation The consequences of under-exploitation The effects on other marine areas The effects on land: is livestock production better than fishing? The public debate Are the fishery objectives of the new CFP too rigid? The lessons from the US system Socio-economic objectives vs. biological delivery: should the policy establish specific socio-economic targets? References

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3 Implementing maximum sustainable yield

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What is maximum sustainable yield? Defining MSY MSY in the reformed CFP MSY in international law MSY and the Treaty Is maximum economic yield a better option? An area around MSY MSY as biomass or as fishing mortality? Introduction Bmsy as an “aspirational objective” The interpretation by environmental NGOs

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Contents Single stock objectives in the marine ecosystems: can all stocks be “above Bmsy ” in mixed fisheries? Bmsy , an elusive parameter The US system Estimating Fmsy Single-stock Fmsy vs. ecosystem-based Fmsy Proxies for data-poor fisheries Alternative approaches: escapement strategies Fmsy as a target or as a limit? The notion of risk in fishery management The US case Fmsy : a point value or a range? Background The case for fishing mortality ranges F ranges: handle with care. Are they precautionary? The on-going experience: MSY in multiannual management plans F ranges and the choke species problem: the Baltic precedent The consolidation of F ranges The safeguards: biomass thresholds Should all plans reproduce that precedent? Fmsy for all stocks: what does it mean? Data-poor and secondary stocks: manage them to MSY? Introduction Which stocks to manage? Are the EU-managed stocks the right ones? Problem stocks References

4 The challenge of mixed fisheries

Mixed fisheries in the new CFP Can MSY be achieved for all stocks in mixed fisheries? Mixed fisheries and choke species Choke species: some experience outside the EU Choke species under the new CFP Alternative management approaches for mixed fisheries Multispecies approaches What potential for multispecies models?

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Pretty good yield The Fcube model Multi-stock reference points Managing stock aggregates? How much can we sacrifice weak stocks? An ecological cap on TACs? Trophic models Multispecies models and trade-offs: is multispecies management compatible with relative stability? Is multispecies management compatible with the objectives of the CFP? Can associated species in mixed fisheries be dissociated? The US experience in dissociating stocks How to dissociate stocks in mixed fisheries in the EU? References

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5 Achieving policy objectives in Mediterranean fisheries

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MSY and Mediterranean fisheries Time to catch-up The status of Mediterranean fisheries Sustainable overfishing? Economic performance The Mediterranean specificity Global warming: a game-changer Can MSY be achieved by 2020 for all stocks in Mediterranean fisheries? The point of departure What stocks to manage in the Mediterranean? A focus on EU stocks Avoiding “cut and paste” approaches A fishery approach? Streamlining scientific advice The need for a “client” for the scientific community Data poor stocks and MSY proxies Revising stock boundaries The CFP and GFCM What instruments to use in Mediterranean fisheries? Fishing effort plans TACs

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96 96 97 98 98 99 100 100 101 102 103 103 104 104

The multispecies approach: a better alternative for the Mediterranean? Closed areas Mesh sizes The transition: a buy-out scheme for Mediterranean fisheries References 6 The landing obligation

The CFP and the problem of discarding Discarding in the CFP: how much? Why? The 2013 policy on discards A critique of the landing obligation of 2013 Discards and direct human consumption What other countries do on discarding The US case Norway Iceland The effects of a non-discard policy Biological effects Economic effects Choke species and the “perfect storm” of 2019 Relative stability as a contributor to choke species Quota swaps as a possible solution How efficient is the quota swap system? Are quota swaps increasing to facilitate the discard ban? Can quota swaps be enhanced? The flexibility mechanisms The de minimis allowance The survival exemption The cross-reporting of catches Ex-ante and ex-post quota adjustments: banking and borrowing Other possible elements of flexibility TAC uplifts Reducing minimum conservation reference sizes? Working on the fringes of relative stability? Other possible mechanisms Implementing the landing obligation in practice

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By-catch avoidance: mitigation Controlling the landing obligation What to do with unwanted fish? The need for monitoring Is the landing obligation economically viable? References

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7 Beyond single-stock TACs: the other instruments of the CFP

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Management by single-stock TACs The advantages of TAC management The limits of TACs as an instrument Other instruments available in the CFP Effort management Is effort a good management instrument? The Faroese system as an example The experience of effort management in the CFP Effort management and technological creep The potential for a (different) effort management in the CFP Technical conservation measures The objectives of TCM The difficulty in increasing selectivity Technical measures in the new CFP Mesh sizes Closed areas/seasons Minimum conservation reference sizes Technical measures and the landing obligation References

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8 Fisheries and the environment

The CFP and environmental policy Introduction Incorporating environmental concerns into the CFP Overlapping legislation The dichotomy between fisheries management and environmental protection: the case of sharks Sharks: protect or manage? Shark finning Some ideas on management The effects of fishing on the environment Fishing: the evil of the seas? Fishing down the food web?

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Contents Does sustainable fishing increase productivity? Preserving marine biodiversity How to measure biodiversity: existing indicators Protecting biodiversity on land as a comparison Marine Protected Areas: the ultimate instrument? How to evaluate the preservation of biodiversity: the notion of ecosystem services The ecosystem approach The ecosystem approach and the CFP Ecosystem-based fisheries management A test case: managing forage fish What future for ecosystem-based management in the CFP? A provocative idea: balanced harvest Is selective fishing always a good idea? The notion of “balanced harvest” Is balanced harvest applicable in practice? References

9 Fisheries governance and the CFP

The evolution of governance under the CFP Introduction The balance between discipline and flexibility Policy flexibility: the example of the United States Can the CFP be more flexible? The notion of “level playing field” in the CFP The new paradigm of the CFP: regionalization The example of the US: a regionalized fisheries policy Regionalization of the CFP: the experience of discard plans The role of stakeholder bodies The example of the US: what can we learn from the US Regional Councils? The EU’s Advisory Councils’ structure and composition: are they equipped to do their job?

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A note on consensus: is this the best method? Are the ACs worth the investment? The role of Producer Organizations Environmental NGOs and the CFP NGOs and legitimacy: funding NGOs and their influence NGOs and Advisory Councils Is cooperation between industry and NGOs possible? The role of science The new CFP and fisheries science Improving scientific advice Data and science Streamlining the evaluation process: stock prioritization Science and the management system Economic advice Science in the information age The role of consumers: certification systems The case of MSC The dolphin safe certification Other certification systems Public or private labels? What to certify in the future? Governance in the reformed CFP: the example of multiannual plans Background Multiannual plans and the role of the institutions How has co-decision fared for the CFP? Addressing variability and uncertainty Communicating the uncertainty Spatial dynamics A governance system that quickly incorporates variability How to make the CFP more adaptive to variability and uncertainty? Policy monitoring: from description to causality Policy complexity: can the CFP be simplified? Is policy complexity inevitable? The complex political/geographical/ jurisdictional context The evolution of the decision-making workflow in the CFP The example of the US

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Contents Can regionalization reduce complexity? Can guidelines replace regulations in the CFP? Changing the paradigm: from prescriptive to collaborative governance Results-based management Does the CFP have the structures for collaborative management? Creating trust References 10 The CFP and international fisheries

The external dimension as an essential part of the CFP Introduction The EU as the crucial actor in international fisheries governance The external dimension of the CFP and international governance Marine Protected Areas: the miracle instrument? MPAs: what objectives? The Aichi targets The notion of “ocean grabbing” The ultimate MPA: a ban on high seas fishing? High seas fishing: economic nonsense? A ban on high seas trawling? International governance and developing countries International fisheries governance: a rich country’s agenda? Capacity building Fight against poverty Access to fishing rights Large-scale MPAs and developing countries Global fleet capacity A problem of global governance The Kobe process A key factor: the allocation of fishing rights Fisheries enforcement at global level: fighting against illegal fishing Introduction The success of the EU IUU policy A multilateral IUU policy

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What future for the fight against IUU fishing? The improvement of RFMOs Why RFMOs are so important The necessary improvements NEAFC and the “coastal states arrangement” The changes in the traditional status quo of the oceans The increasing privatization of the world’s oceans The emergent fishing nations References

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11 The missing elements of the 2013 Policy reform

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What the 2013 CFP reform missed The issues beyond the “big four” Rights-based management Is rights-based management good or bad? Why did TFCs fail in the 2013 reform? The experience of third countries The experience of some EU Member States Rights-based management and discards Is there a market of fishing rights in the EU? Small-scale fisheries: no specific policy Defining small-scale fishing: more difficult than it seems What small-scale and large-scale can provide The comparative impacts of small-scale vs. large-scale fishing What can we learn from aboriginal fishing rights? The fisheries control system The dichotomy between EU policy and national control Harmonization of sanctions? Enhanced powers for EFCA? The control of the landing obligation: a test case The management system: is cost-recovery possible in the CFP? Is self-control an option? Fleet policy: does it still have any sense today?

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Contents Background Fleet policy in the 2013 reform The US case Are capacity ceilings limiting anything? Is there a case for fleet policy? The EMFF: an instrument to accompany the reform? Some positives . . . . . . and some negatives The structural measures of the US as a point for reflection References

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12 The global context: emerging challenges

The status of the world’s fishery resources The Pauly/Hilborn controversy So, who is right and who is wrong? The case of the EU Does fisheries management work? The “perfect protein”: can the world afford to under-exploit its fishing opportunities? Hunger and poverty: fish consumption and the global demand for fish Are the land-based alternatives better? Protein from livestock A question of equity: the notion of “leakage” Fisheries: a key component of future diets Aquaculture: the seafood of the future? Aquaculture and capture fisheries: are they compatible? Is aquaculture ecologically sustainable? Fisheries and employment Employment at sea The property of the means of production: who owns the fishing rights? Does it matter? Why the structure of property matters What possible effects on management? Climate change and fisheries management Global warming and the oceans Global warming and food production The effects of climate change on fisheries and aquaculture

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How to address the problem: the case of Alaska Marine pollution: the example of micro-plastics and marine resources Distribution and incorporation to the food chain The effects of micro-plastics on consumers What to do? Fisheries in the information age The influence of the information society on policy making The bad image of industrial fishing References

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13 Adapting the CFP to emerging challenges

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Adapting the CFP beyond reform Emerging challenges and the value of long-term strategic thinking Adapting the CFP to climate change The evidence of climate change in EU fisheries A case study: Atlantic cod The consequences of climate change in the CFP The US example A strategic plan to adapt the CFP to climate change More food from the sea Seafood vs. land-based food Is the EU producing enough food from the oceans? Some background Are there untapped fish resources? Exploiting the lower trophic levels Improving quota consumption Changing the policy paradigm: a policy based on exploiting the surplus of the marine ecosystem, not individual stocks Developing new aquaculture practice The integration of fisheries policy into a wider policy context The wider notion of fisheries management The relationship between fisheries and other economic sectors

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The challenge of science vs. social influence Bridging the chasm: a “new deal” between the fishing industry and environmental NGOs? Recreational fisheries in Europe The US case References 14 Some ideas for the next CFP reform

A vision of the future CFP The 2009 vision: is it still valid today? New elements of a vision of the future CFP New policy objectives An improved governance system A more flexible, adaptive CFP A new legislative culture: concentrating on political objectives, not on micro-management A new decision support framework The future of regionalization The notion of co-creation and the “irrational” part of decision-making Creating breathing space for the ACs A new structure for an enhanced role for the Advisory Councils Relative stability: why it should evolve Why question the CFP’s cornerstone? Are individual annual quotas under relative stability biologically and economically rational? An enhanced market of fishing rights among Member States A European market of fishing rights? The case of milk quotas

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Evolution through adjustment A revamping of relative stability: from single-stock shares to combined shares The Mediterranean: a new management paradigm Should the CFP manage recreational fishing? What future for the fishery structural funds? An instrument to promote policy change, not to maintain the status quo What structural funds for the future CFP? Introducing market mechanisms in the CFP? An alternative approach: RBM partial and optional A specific policy for small-scale fishing? A reformulated discard policy New objectives Accepting (while discouraging) over-quota landings Do we need to change the basic regulation? Policy changes not requiring legislative change Policy changes requiring clarification or interpretation Policy changes requiring legislative change References

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Glossary

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Abbreviations

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Index

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Preface

The Common Fisheries Policy (CFP) established in 1983, is one of the most integrated policies of the European Union (EU), and its core purpose, the management of the biological fish stocks, is part of the five exclusive competences of the Union, according to Article 3 of the Treaty of Lisbon. In an earlier book (Penas Lado 2016) I explained the importance of this fact over and beyond the relatively minor weight of the fishing sector in the overall economy of the EU. The policy has been reformed roughly every 10 years. The last reform in 2013 represented the most substantial policy change in the history of the CFP, notably due to the introduction of three new important policy elements: the regionalization of the policy, the introduction of a ban on discards, and the establishment of a clear-cut objective for the management of fish stocks: fishing at maximum sustainable yield (MSY) levels by 2020. Now the policy is at a crossroads: the cumulative effects of the implementation of the reformed CFP, with its very ambitious policy objectives together with policy strands that are difficult to conciliate, the new challenges in world fisheries (including for example climate change) and the effects of the withdrawal of the United Kingdom from the European Union, all together result in a huge challenge for the policy that calls into question old certainties and will require a considerable re-thinking of many old practices. The purpose of this work is to complete my own account of the historical development of the CFP with an analysis of how the policy can meet the challenges of the future, using examples of other comparable fisheries policies and taking a step forward to envision further developments for the CFP of the future. On a personal basis, and upon retirement from the European Commission, this could be my last

contribution to the CFP, after close to 30 years of work in different parts of its engine room. At the time these pages are being written, the negotiation for the withdrawal of the United Kingdom from the EU has barely started on the fishery side, and it is obvious that the outcome of such negotiation cannot be anticipated. Given the central position of the UK and the waters under its jurisdiction in the CFP, it seems safe to assume that such withdrawal, whatever the conditions agreed, will have significant consequences for the CFP. The book does not address these questions, but the ideas presented can be of relevance for the future of the CFP whatever the terms and conditions finally agreed on the departure of the United Kingdom from the EU. The evolution of policy making, in the EU and elsewhere, is characterized by an increasing flood of information and the growing influence of social media, which tend to result in quick, immediate snapshots of superficial information, to the detriment of calm, in-depth analysis of objective data. The modest aspiration of this book is to provide some elements for an in-depth discussion of many of the main challenges of the policy. Of course, without any pretension of being objective: the book expresses my subjective views, and I can only invite those who will disagree to write about it and counter my arguments. The challenges of the CFP are mainly of two sorts: one is the implementation of the 2013 reform which will combine certain new elements (landing obligation) without changing existing ones (individual catch limitations under relative stability) and is likely to produce a quagmire when all the new rules become fully applicable in the coming years. The other challenge is the adaptation of the CFP to the new challenges of the management of fish stocks xiii

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Preface

around the world, and to do so in a way that will not aggravate the complexity and unwieldiness for which the policy has long been known. A substantial element of this analysis is based on my experience in the United States, where the implementation of the fisheries policy under the Magnuson-Stevens Act provided a privileged opportunity to compare policies, and this comparison allowed me to look into the CFP under a different light. The US policy has been considered in a recent comparison as “decidedly more successful at meeting its conservation goals than has fisheries management in the EU, as governed by the CFP” (Battista et al. 2019). The debates about the CFP have always tended to be too Eurocentric and, given the very particular nature of this policy (a unique mixture between national and international policy) the experience from abroad is often dismissed as “not applicable to the EU.” However, although “cut and paste” approaches are obviously out of question, the experience of the US in particular sheds extremely interesting light into the way the CFP is trying to achieve its goals. This vision of the CFP from outside by a CFP insider is unprecedented, and this is probably the most interesting part of this book. This book contains a number of critical views about the CFP as it stands today, and suggests some ideas that many readers may probably consider unrealistic, premature, unacceptable or even outrageous. This only shows that “thinking outside the box” is not necessarily an exercise reserved for the young and inexperienced. In any case, the critical views are written from an unashamedly pro-European stance. I bring a critical view of the CFP because I care about it and want it to be the policy the European project deserves. The criticism is therefore my personal view on the areas where the CFP needs improvement, and the ideas proposed are intended to be food for thought for those who will implement the policy in the years to come.

The book does not necessarily advocate radical change in the policy. Popular wisdom tells us: “if it is not broken, don’t fix it.” But the problem is that perhaps certain things in the CFP may be broken or about to break, and we don’t even want to know about it because we don’t want to “open Pandora’s box.” Moreover, things that are not clearly broken today may start breaking in the future, and good policies are those that try to anticipate change, rather than respond to crisis. This book raises questions that must be discussed. If, at the end, the policy does not change, at least it should be because the current policy is really better than the possible alternatives, and not just because of policy inertia and intellectual laziness. Finally, some may criticize my bid for the introduction of elements of flexibility in establishing objectives and evaluating results. This may be seen as an attempt to “water down” the policy. But that would miss the point: the ongoing evidence shows that a policy with overambitious or overly rigid objectives can only provide the perfect alibi for poor implementation and enforcement. I believe that it would be in the policy’s best interest to have more flexible and realistic goals and then concentrate on achieving them effectively. Ernesto Penas Lado Brussels, December 2018

References Battista, E.W., Kelly, R.P., Erickson, A., and Fujita, R. (2019). Fisheries governance affecting conservation outcomes in the United States and the European Union. Coastal Management https://doi.org/10.1080/ 08920753.2018.1498711. Penas Lado, E. (2016). The Common Fisheries Policy. The Quest for Sustainability, 392. Wiley-Blackwell.

Acknowledgments

This work has largely been prepared during my stay at the University of Washington, in Seattle, USA, my alma mater for nine months under a European Commission fellowship. The University of Washington’s academic excellence, open mindedness and sense of intellectual freedom provided me with the ideal conditions to learn, teach, read, discuss and write about fisheries management. In that context, the comparison between the CFP and the US fishery management system under the Magnuson-Stevens Act was particularly illustrative. Although that system cannot necessarily be applied in the EU in many respects, the comparison between the two management regimes allowed an analysis of the CFP, with its strengths and weaknesses, under a new light. In particular, I am indebted to a number of people who contributed to prepare these pages, or to inspire them. Ray Hilborn was a fundamental source of help, information and inspiration. His generous support to the organization of a course-seminar on mixed fisheries in the University of Washington, and my participation in his various activities was extremely enriching. In that course, the lectures by Clara Ulrich, Bill Karp, Kevin Stokes, Dan Holland, Bruce Turris and Jim Armstrong were of the highest interest. He also made very useful comments on key sections of the book.

Dave Fluharty informed me about US fisheries management in his excellent dedicated course and in numerous exchanges. In this course, the contribution from Penny Dalton on the implementation of the Magnuson-Stevens Act, Andre Punt on the stock management parameters, or Anne Hollowed on the US program to address climate change, among others, were of particular value. His comments on the final manuscript were extremely valuable. Very special thanks to Bill Karp, who contributed very substantially to this work by providing me with his experience and insight into the US management system through various presentations and exchanges. He also provided extremely useful comments both on substance and style to an earlier version and to key chapters of the final draft. Andrea Brocato and Tess Ames organized my fellowship at the University of Washington and facilitated all the contacts and activities. Nadine Marcos contributed in finding documents and references on EU fisheries policy, in particular during my stay in Seattle. Many colleagues provided me with their help and collaboration during my long years as an official in the European Commission. I learned so much from many of them that they also must be considered as contributors to this book, much more than they can probably imagine.

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Disclaimer

The opinions expressed in this book are those of the author and not those of the European Commission.

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CHAPTER 1

The common fisheries policy: stability or change?

Introduction: fisheries, a conservative world In Europe, as elsewhere in the world, fisheries are a traditional activity with a tendency to conservatism, and this is reflected in the Common Fisheries Policy (CFP). Traditionally, fisheries communities tend to be rather resistant to change of policy. While much of this industry is quick to adapt to better technologies that would improve their performance, they tend to be rather reticent to introduce changes in management. This in turn implies that many traditional fisheries administrations, with a deeply-rooted tradition of paternalism, become equally resistant to change. Yet, the fishing activity is subject to an increasing number of challenges that call for policy change, or at least policy adaptation. An observer from outside would probably think that the strong and frequent criticism of the policy by its own stakeholders would imply a strong appetite for change. Yet, for many years the criticism in the EU has not necessarily resulted in a strong drive for policy change. This author has named this apparent contradiction the “don’t like it but don’t change it” syndrome, whereby those who criticize the policy every day hesitate to change it or even consider it exaggerated when the criticism comes from others (Penas Lado 2016). The best proof is the reaction of much of the European fishing industry to the Green Paper on CFP reform published

in 2009, where the European Commission made an unprecedented self-criticism of the policy (EU 2009a): a number of voices, notably from the industry itself, considered that the Commission presented a too negative view of the policy which, in their view, was not justified. This example illustrates the weight of tradition in the evolution of the policy. In fisheries management in general, and in the CFP in particular, it is impossible to consider policy improvements by starting with a blank page. Any discussion on policy reform must always take account of the complex maze of vested interests to keep the status quo or part thereof, and the limited capacity of the system (the industry as well as administrations) to change course. Any policy change should always be partial and gradual, or it will simply not take place. And, in most cases, change is not necessarily self-induced, but the result of driving forces from outside the industry/administration complex.

A distributional policy A fundamental part of the difficulty to reform the CFP is its distributive nature. A number of authors have alluded to the origins of the policy that were dominated by considerations of national interest by the Council of Ministers when allocating fishing rights, rather than by the search for a rational system to manage fisheries (Schweiger 2010). Symes and Crean (1995) underlined the fact that when the

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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CFP was established, ministers were simply expected to defend national interest in obtaining a share of the resources, regardless of the consequences for the common good. This created a deeply-rooted tradition of looking into maximizing the biggest possible piece of the pie in the short term, and that culture has largely survived to this day. Such culture, in addition, has for a long time prevented management from “growing the size of the pie.” This tradition is also related to the paternalism that has prevailed in fisheries management in most Member State administrations. This led part of the most competitive industry in 1983 to consider that the prevalence of the national interest was not related with free markets, but rather with social welfare (cited in Schweiger, 2010). In other words, national interests were often defined in social welfare terms as opposed to free markets and sustainable harvests. Although considerable progress has been made to redress these issues since 1983, the difficulty to re-consider the distributional part of the policy still constitutes a major factor opposing policy change and adaptation. Any change that could be construed as a questioning of the initial distribution of fishing rights (relative stability) finds automatic opposition by a still large majority of Member States and significant parts of the industry. It has been underlined that over time the distributional part of the policy, the allocation among Member States of single stocks through relative stability, has been inevitably distorted because species have tended to decline or recover at different rates responding to variable changes in stock abundance (Symes 1997). However, this fact has never led Member States to question the status quo, in a demonstration of the extreme conservatism derived from the initial distribution: it is better not to touch it even if in some cases it may be working against the interest of a Member State. This state of mind is also largely shared in the European institutions, where allegations that something may question relative stability immediately translate into stopping the discussion: suggesting that idea is simply a self-explanatory non-starter.

In addition, it has been demonstrated in a number of cases that the agreement on allocation of a fish stock is a pre-condition for the adoption of management measures at EU level. This has two consequences: that the distributional aspects of the policy are a barrier against policy change, but also that effective policy change can only take place if the distributional question is addressed. The latter is probably the biggest challenge to any attempt at future policy change in the CFP.

Policy change vs. policy stability The CFP, since its inception in 1983, has been subject to a process of reform three times, roughly every 10 years. Reforms have been adopted in 1992, 2002, and 2013 (Penas Lado 2016). The traditional wisdom associated to these reforms has been that there needs to be a balance between (a) the necessary adaptation of the policy as new evidence appears or new challenges are to be faced, and (b) the necessary time of stability to concentrate on implementation. During the inter-reform periods, however, a number of policy changes can still be introduced, but these generally do not require a change of the legal basis of the policy, and correspond to practical implementation of new or different approaches that are already foreseen in that legal basis. The tradition of reform every 10 years continues, and the current basic regulation 1380/2013 foresees in its Article 49 the presentation of a report by the Commission to the European Council and to the Parliament on the functioning of the CFP by 31 December 2022. Although this clause does not imply necessarily another major reform as of 2023, it would seem reasonable to think that the evolution of the policy is such that is difficult to see how it would just stay unchanged for another 10 years for the first time ever, in particular taking account of the influence of important factors such as Brexit or climate change. In the meantime, the next years to come will be fundamentally implementation time. Indeed, some of the most substantial changes of the policy have been introduced during this

The common fisheries policy: stability or change? inter-reform period and without changing the previous legal basis. For example, the idea of considering the maximum sustainable yield (MSY) as the long-term objective of the management of fish stocks (before being enshrined in the 2013 reform) was gradually introduced after the 2002 reform through a Commission Communication (EU 2006a) and gradually applied de facto in some long-term plans long before the idea was consolidated in legislation in 2013. This fact is extremely important, because it shows that policy change should not be seen just as a legislative change every 10 years, but rather as an open-ended process where adaptation can take place through practice when and where it is relevant and necessary, even without a fundamental legislative change in the policy’s legal basis. There is, however, a very strong current against policy change notably from two actors: fisheries administrations and major segments of the fishing industry. In the case of fisheries administrations, there is a deeply-rooted reticence to policy change. This is understandable: managing a fisheries policy is complex; it requires a lot of work to get familiar with the policy and to set up the administrative and other instruments to run it smoothly. The idea that once they have succeeded to do that the policy will be immediately questioned makes them extremely nervous. As an example, the in-depth consultation by the Commission on the possible changes to introduce in the control regulation of 2009 after the 2013 CFP reform showed all administrations asking for limited technical challenges: “evolution, not revolution” was the position held by practically all national administrations. The fishing industry is a more complex case. Always critical with the policy, they often try to shy away from change when necessary: the “don’t like it but don’t change it” referred to above that much of the European industry has practiced for so long. As an example, in a recent debate on the matter a distinguished representative of the European fishing industry, after expressing strong criticism to the policy, was asked what would be his top priority in the

3

event of a new reform of the CFP. He replied loud and clear: “give us a break” in reference to the need to have stability and not question the policy so often. Policy stability vs. policy inertia: are they one and the same? While it is very understandable to ask for “policy stability” both by administrations and the industry, the problem of this notion is that it often translates into something else: policy inertia. While the first is desirable, in that stability is necessary to ensure good implementation, and to provide the industry with a clear framework where they can operate and plan future investments, the second is a problem in that it tends to dismiss necessary change and improvement. Policy stability and policy inertia are definitely not the same. The problem is that distinguishing between the two is not necessarily straightforward and, for sure, is seen by different players from very different standpoints. I would argue, however, that certain cases are clear in distinguishing the two notions:

• The regime applicable to the 12 miles is probably a good example of good, positive policy stability: it is not questioned by anyone, it has never been identified as a problem and it provides security to fishermen and administrations alike. • The continuity of certain structural measures like the funding of temporary laying-ups outside cases of force majeure, after decades of application without any positive evaluation, is a clear case of policy inertia with more than questionable effects. In policy terms, it is generally expected that policy changes introduced in a reform will enjoy the standard 10-year period for implementation. This is more than sufficient time to ensure the economic stability of the activity, the need for changes in the management system by national administrations and so on. But when certain policy features remain unquestioned after one or even several inter-reform periods, despite evidence for the need for change, this

4

Chapter 1

is not stability, it is policy inertia, which only means the inability of the policy to face its challenges. Making a clear distinction between the two things can be a very enlightening exercise for future discussions on the need and opportunity for policy reform.

Why do policies change? The balance between policy stability and policy change has been described as a function of the interplay between epistemic communities that traditionally dominate the policy debates which tend to lean toward stability, so that policy change takes place when new advocacy coalitions can bring a new policy image and impose it, taking advantage of shifts in political leadership (Meijerink 2005). On their side, Dudley and Richardson (1996) consider that although one of the adversarial communities may hold an advantage over the other at a particular time, the scope for action in a number of different policy-making arenas makes it unlikely that it will retain supremacy over time. Radical change is most likely to be brought about by factors exogenous to policy communities. How does this relate to CFP reform? Indeed, the CFP has long been dominated by the fishing industry as the clear epistemic community. One can wonder whether this role actually corresponded to the scientific fisheries community, but if we follow the above definition, the scientific community has long been the only source of “objective” basis for the policy, but the tradition of largely ignoring its advice by decision-makers clearly points to the fishing industry, and the national administrations that largely reflected its views as the real epistemic communities that have dominated roughly the first two decades of the policy. In the same context, the main “advocacy coalition” has been that of a public opinion influenced by environmental NGOs, which have been the main drivers of policy change, using to their advantage certain changes in political leadership. These changes in leadership have indeed contributed to policy change quite substantially. The two last policy reforms (2002 and 2013)

have been facilitated by the political leadership in the European Commission, who have been increasingly open to the new advocacy coalitions, albeit in a very variable manner: the 2002 CFP reform was influenced by a Fisheries Commissioner who was sensitive for the first time to views outside the mainstream epistemic community. Still, some of the highlights of that reform (the introduction of Regional Advisory Councils) was clearly a demand of the fishing industry itself, while other reforms (the suppression of aid to new construction of vessels) was clearly not, except for a few cases. This tendency was exacerbated in the 2013 reform, where two of the three main new elements (the landing obligation and the MSY objective by 2020) were adopted contrary to the industry’s will, and the third one (regionalization) was supported only by a fraction of the industry. Another important reason for policy change is the tendency toward clarification of policy objectives and enlargement of policy scope. The tendency over the years clearly goes in the direction of adding more and more layers to the policy, as shown in Figure 1.1. This is explained in particular by the need to enlarge the scope, to include new policy objectives and principles, as well as the need to further clarify questions that the previous policy basis left undefined. And this trend is clearly additive: it adds new policy layers but rarely removes the previous ones, resulting in a policy that accumulates new provisions over time. This tendency has positive aspects, for example that it includes new provisions that are necessary for the policy to address new challenges, but it also has downsides: in particular it adds complexity and increases the likelihood of the different policy layers being conflicting.

Legal change vs. policy change The tradition of a legislative reform every 10 years together with implementation changes during the inter-reform periods has traditionally implied a philosophy that all the important changes in the policy must follow a new legislative basis.

The common fisheries policy: stability or change?

5

Number of words in basic regulation 25000 20000 15000 10000 5000 Figure 1.1 Number of words in the basic

0 1983

1992

2002

However, it is important to underline that the different legal basis of the policy, starting with the two basic regulations of the policy (EU 1970a,b) actually had certain elements that could have been developed into policy, but never were, or in a very limited way. Among many possible examples, the possibility of using fishing effort as an instrument was part of the initial palette of management instruments in the CFP, but it was not until the first recovery plans for depleted stocks in 2004 that the instrument was incorporated as an additional instrument to the total allowable catches (TACs) and quotas. This reveals another tradition of the CFP: while it is clear that new management approaches do necessitate a legal basis, very often this legal basis has been there for a long time, but has not been used because the policy never put into place the elements needed to make it happen. In other words: having a legal basis is a necessary, but not sufficient condition for policy change. There are many examples of this dichotomy between the legal basis and the implementation in practice. A case in hand is that of the “real time closures,” a type of measure to adapt fishing practice quickly once there is evidence, for example, that a certain area is full of juvenile fish and should be avoided. Traditionally recommended by many fishermen’s associations and a number of national administrations, a legal basis for its application was indeed included in the new control regulation of 2009 (EU 2009b). However, it was never applied in practice. The reason is simple: the practical implementation

2013

regulation of the CFP over the years.

of that provision requires inter alia a system of real-time transmission of information by a reliable source; something that was never put into place. In fact, the only experience of this kind was applied by the Scottish fleet alone.1 The elements for policy change can be varied but always go far beyond the existence of a legal basis: • Sometimes, policy change is brought about simply by applying the policy’s own rules with determination and conviction, in cases where the rules had been ignored without consequence. • In certain cases, the legal principle exists, but the mechanisms to make it really applicable in practice are not implemented. The above-mentioned case of the real-time closures is a good example. • In other cases, the change takes place in certain areas and/or fisheries, where Member States and the industry concerned take such changes more seriously, while in other areas this is not the case. Overall, the CFP has always had a very wide range of possibilities in its basic legal texts, but these possibilities have not always been implemented in practice, either because the policy preferred other options, or else because the non-legislative conditions necessary for their implementation simply were not there. This, in turn, means that before thinking about introducing changes on a legal basis, it is important to try to exploit all the possibilities 1 www.fishingforthetruth.co.uk/sustainability/ conservation-credits/

6

Chapter 1

offered by the existing legal framework, and this represents a certain change of “culture” in the policy.

Does the CFP change too much or too little? The CFP has evolved through the three reforms and through the gradual evolution within the successive frameworks. Whether the changes introduced in the policy are too slow and limited, or too quick and substantial, that is of course a matter of different opinions. This author will contend that fisheries policy in general, and the CFP in particular have been very slow to change. There can be a number of reasons for this: • The high level of uncertainty associated to the activity, which creates a culture very unfavorable to innovations whose consequences are unclear. • The relatively slow pace of technical innovation, which makes regulatory change less necessary to accommodate such innovation as compared to other economic sectors. • The image of fisheries as a highly conflictual sector, where the difficulties associated to policy change offset the benefits of the change itself, at least from the viewpoint of many politicians and managers. This often makes the interest to keep social peace a higher priority than adopting necessary (but conflicting) changes in the policy. • The relatively small size of the fishing industry when compared with other economic sectors in the EU, which generally puts fisheries under the radar of other important policy changes affecting larger economic sectors. Ultimately, the political drive for reform of the CFP is a result of the imbalance between the low overall economic weight of the fishing activity in the EU as a whole and the (real or perceived) unrest of the sector, that often discourages managers from undertaking difficult and contentious change, because the political price to pay is comparatively high and the rewards low.

That is of course the situation where countries can afford to fail in their fisheries management, and then compensate this failure with a certain level of public funding. On the contrary, countries such as Iceland where the fishing industry is the country’s bread and butter (at least until the touristic boom in recent years), simply cannot afford to fail in their fisheries management, and that implies a much greater openness to keep the policy under constant scrutiny and permanent adjustment and improvement. Within the EU, this is also reflected by the position of the regions where fisheries represent a high percentage of income, that are traditionally much more open to policy change. Because of these elements, what is a slow pace of change for some can actually look like a very speedy and confusing policy evolution to others. The speed of change depends on subjective perceptions, and it is not possible to assess such speed in pure objective terms. The question, however, can be approached from the point of view of the degree of adaptation of the policy to certain challenges or to traditional shortcomings. There, a certain number of experiences can shed some light in that discussion: in a number of substantial issues of the CFP, progress has been extremely slow, or inexistent, for example: • The management areas for the establishment of TACs have been basically unchanged for more than 30 years, despite clear evidence of changes in the areas of distribution of a number of stocks. • The change from the downward trend to the upward trend in stock abundance took more than 20 years (from 1983 to roughly 2000) after the birth of the conservation policy. • In certain areas, such as the Mediterranean Sea, the conservation pillar of the policy is still in its infancy, after the first attempts in 1994 (see Chapter 5). • Some ideas (the reduction in discarding) mentioned already in 1992 were only introduced in the policy in 2013, that is, 21 years later! • Similarly, the establishment of MSY as a policy objective, established by international law

The common fisheries policy: stability or change? (The United Nations Convention on the Law of the Sea; UNCLOS) as a binding objective in 1994, was only enshrined in the legal basis of the CFP in 2013, 19 years later. These few examples illustrate that, at least in a number of important policy areas, policy progress in the CFP has been extremely slow. In any case, perceptions about the pace of change in the CFP are naturally variable. Some Member States, with dynamic, industrial fishery sectors want a quicker pace of policy change and innovation. Others, with more traditional sectors prioritize the preservation of the status quo by all possible means. For the latter, any change tends to be too much. Ultimately, this division also reflects ideological divisions about the way to handle fisheries: while those favoring an economically-liberal approach tend to favor policy change, those favoring a more paternalistic, State-driven economic sector tend to be more adverse to policy change. Interestingly, this division does not depend so much on the color of the government in each Member State: these ideological divisions are remarkably stable within every Member State despite changes of government, and tend to reflect deeply-rooted and politically transversal traditions of liberal vs. paternalistic management models of their fishing industry. Changes in policy reform or in inter-reform periods It would be simplistic to think that the most substantial changes are necessarily those of the 10-year policy revisions. Sometimes, the most substantial changes have been introduced in the inter-reform periods. This is illustrated by the experience of implementing the 2002 reform (EU 2002): • This reform failed to incorporate MSY as the objective of the management of stocks, since the political drive from the World Summit on Sustainable Development took place the same year, thus with little time to incorporate that political objective into EU law. However, this did not prevent the Commission promoting this objective years before the following reform, notably through

7

a Communication (EU 2006a) followed by specific MSY objectives in certain long-term recovery plans. • The experience of the use of effort management as a duplicate instrument to catch limitations, established by the 2002 reform, was considered a negative one and gradually eliminated from subsequent proposals. In some cases, provisions on effort management were simply ignored by Council in practice, despite the requirements of the 2002 legal basis. The above experience shows that in the period within two reforms there may be very substantial changes to the policy in practice, without necessarily requiring any change in the legal basis. This is very positive, because it shows that the policy needs, and can in practice, be adapted through learning from experience outside the reform periods.

Policy rigidity vs. policy flexibility: why is the CFP so rigid? This is another fundamental question when it comes to policy change: if the policy is flexible enough, it does not need to be modified so often. If it is rigid, then it needs to be adjusted every time there is an unforeseen circumstance. In this particular case, it seems clear that the CFP is characterized by a high level of rigidity. Some examples cited by Penas Lado (2016) illustrate this point, such as the case of the Baltic ice cover and the cod summer ban, or that of the adaptation of the European Fisheries Fund to address the effects of the 2008 oil crisis. There is little doubt that the CFP is a very rigid policy: all the rules, up to a remarkably technical and detailed level, are laid down as legislation that is neither easy nor quick to modify. In addition, the room for maneuver to “interpret” the legislation is limited by the fact that this is a role that corresponds exclusively to the European Court of Justice, which implies that the policy is “interpreted” only when the Court establishes case law through its rulings. Is this rigidity inevitable or a conscious political choice? This author will contend that this policy rigidity is mainly a tradition established at

8

Chapter 1

its inception and subsequently consolidated and even reinforced ever since. There is a good historical reason for this: the difficulty of the long period (1977–1983) of gestation of the policy made it necessary to agree on all details to overcome the lack of trust among the players concerned. This lack of trust has continued or even been exacerbated in successive enlargements of the Union, and thus the need to fix all the details has continued. This has resulted in a policy that is not only rigid, but also complex, since most if not all the actors have traditionally put emphasis on securing their vested interests and actually prefer a bespoke policy, no matter how complex, to a simple one that could be open to flexible interpretation by different players. Co-decision and policy rigidity Since 2010 co-decision between the Council and Ministers and the European Parliament is the ordinary legislative procedure for the CFP. In this context, it is opportune to ask if it has contributed to make the CFP more flexible or more rigid. The answer is not always straightforward, but I will contend that, overall, co-decision has rendered the CFP even more rigid than before. The reasons are varied: • The process of decision-making has become so complicated that once a decision is taken the system has little capacity or willingness to introduce amendments to cater for new circumstances. • The sheer amount of regulations of the CFP is difficult to handle by a system with a limited capacity to look at too many projects at the same time; this considerably limits the opportunity for the Commission to make too many proposals in parallel, let alone modify those adopted after very long and complex negotiations. • The balance of power between the two co-legislators often results in regulations becoming too detailed and rigid, as a result of institutional mistrust: Council and Parliament mistrust each other and often also mistrust the Commission having too much room for maneuver to decide. The result of

this mistrust is regulations that establish too many details through co-decision. In fact, co-decision is an ideal procedure for a policy where the legislative production is scarce and is made up of a few legal acts, such as directives, that are adopted every so often. But the procedure is ill-adapted to a policy with a tradition of abundant and detailed legislation. In this case, co-decision can barely cope with the speed at which the legislation needs to be produced and adopted. Obviously, any discussion on the future CFP is not going to change the Treaty. But, as we will see in Chapter 14, there is a way out: using co-decision to adopt much less detailed and prescriptive legislation, and re-centering the work of co-legislators on fewer but politically important questions. This requires a reflection on the role of Parliament in the CFP: while Council is used to decide on all matters pertaining to the CFP, the role of Parliament as a co-legislator is still relatively recent (2010) and still needs some adjustment, particularly in the way of concentrating its activity on the important political points, not so much on the technical detail. In every political system, Parliaments adopt laws, not regulations. Yet, in the current co-decision process of the CFP the European Parliament (and the Council) still have the tendency to adopt too many technical details. This requires a fundamental cultural change. We will refer to this in Chapters 9 and 14 in particular.

Policy implementation and policy change: the challenge of implementing the 2013 reform As these pages are being written, the CFP is in the middle of the inter-reform period. If we follow the scheme described under “Legal change vs. policy change” above, this is not the time for policy reform, but just for implementation. It is true that any indication, at this juncture, that policy change may be necessary could seriously

The common fisheries policy: stability or change? undermine the efforts to implement the 2013 objectives effectively. The difficulties around the full implementation of the landing obligation are the best example: if a policy change was considered, it would probably follow that all the actors concerned would concentrate on what changes to introduce, not on how to implement the policy adopted already.

The challenges of implementation However, a number of reasons clearly indicate that the policy implementation cannot necessarily be business as usual until the above-referred report of 2022. These reasons are the following: • The implementation of the two new CFP objectives: the MSY by 2020 for all stocks, combined with the full implementation of the landing obligation by 2019, and all under the rigid, unchanged quota allocation keys under relative stability will produce an important choke species effect in many fisheries in EU waters, thus affecting the ability of the fishery to deliver the objectives of the policy as according to Article 39, Treaty on the Functioning of the European Union (TFEU) (see Chapter 6). • The growing evidence of climate change and its expected effects on fish stocks will change the status quo of the policy, notably as a result of the displacement of the area of distribution of a number of key species in European waters. These changes will inter alia make current management areas obsolete and will aggravate the problem of choke species (see Chapters 12 and 13). • The achievement of the policy objectives in the Mediterranean lags far behind other EU waters and will require a special effort and special instruments if such objectives are to be achieved at all (see Chapter 5). • The CFP is closely linked to the evolution of the international management of fisheries, and this is subject to increasing pressure that the policy has to adapt to, in particular if and when this evolution leads to new international obligations for the EU (see Chapter 12).

9

• The effects of the growing influence of public opinion (largely through social networks) on policy decisions, the coming into play of new economic players in the maritime space, and thus the challenge to handle an increasingly complex policy context (see Chapter 12). • Last but certainly not least, the effects of the withdrawal of the United Kingdom from the EU, whatever the specific conditions agreed, will fundamentally change the CFP. These changes will require new policy decisions and approaches that may wait until the next policy reform after 2022. All the above points will make it necessary to adapt the policy sooner rather than later, so the idea that the current inter-reform period should be business as usual is not granted.

The CFP’s legendary bad press That the CFP has always had a bad press is beyond any doubt. The causes are mixed, but perhaps the very nature of fisheries management (imposing restrictions to preserve tomorrow’s fishing is not necessarily popular) and the character of the policy as one of the few exclusive competence policies of the EU makes the CFP or “Brussels” an easy scapegoat. This bad press is particularly acute in the case of the UK, to the point that in the Brexit referendum (see below) the British fishing communities voted massively for Brexit, despite the recent reform (2013) that was very well-received by the British government of the time. In addition to the policy’s own failings, that are not in short supply, the CFP is also criticized for decisions taken by Member States themselves. A very interesting example is, as recently as 2016, that provided by the British tabloid Daily Mail, which stated in large headlines that the English fishing industry was “sunk by EU quotacrats” based on the fact that 23% of English fish quotas were allocated to a single Dutch-owned vessel, to the detriment of small operators.2 What the article ignored is that the allocation of the British fish quotas among

2 Mail

Online. Thursday, 7 July 2016.

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Chapter 1

operators is decided by the British government, without interference from “Brussels.” Though policy change does not necessarily follow critical views from the media, it would be naive just to ignore the weight of public (or published) opinion in shaping up political positions about the CFP.

The reformed CFP: success or failure? Ultimately, the case for CFP reform will be determined by the consideration of the policy as a success or a failure. This consideration, over and beyond superficial evaluations, is more complex than it seems. It is largely a question of expectations, as well as the way in which we report about its results: • The same policy results can be viewed as success or failure depending on expectations, on the interpretation of policy objectives or on the different weight given to the policy’s different objectives. There is no single way to consider policy results as success or failure. • To evaluate the degree of success of a policy it is also essential to ensure that the evaluation is done on all the relevant data. Reporting on policy results is crucial because depending upon what aspects of the policy, and what objectives we look at, we may have a very different view of the policy’s degree of success. Let’s look at these questions.

The notion of “policy success” in fisheries management The notion of policy success is not univocal. Different actors would have a very different view of what this “policy success” is all about. This is the case in all fisheries around the world because the objectives of fisheries policy are various and often conflicting, and what certain stakeholders may consider a failure is perhaps a success for other stakeholders (Hilborn 2007). In the CFP, the different objectives of Article 39 TFEU point in the direction of a multi-faceted notion of success. This is so because the different

objectives of the policy may in fact be conflicting among them. The importance of recognizing the conflict between policy objectives is increasingly stressed (Hilborn 2007; Dichmont et al. 2010; Pereau et al. 2012; Zimmermann and Yamazaki 2017). This means that the management system should incorporate ways to assess these conflicts and incorporate the relative importance of the objectives of different stakeholder groups in the institutional framework (Pascoe et al. 2017). The notion of policy success is extremely important because fisheries management fundamentally consists of applying restrictions to ensure the sustainability of the resources that the fishery depends on. Asking people to make sacrifices is better understood when the people concerned can see the future rewards of such sacrifices. However, if and when the results of these sacrifices are an improvement of the biological status of the resources, but not a long-term improvement in the socio-economic condition of the industry, the sacrifices will be seriously questioned as being unjustified, inequitable, or simply unfair. As we will see in subsequent chapters, the management of fish stocks in certain areas of the United States has improved the biological status of the stocks, but has not increased yields. There are more fish at sea, but the proportion of the fish caught is lower. Any sacrifice made to rebuild resources has benefited the resources but not necessarily the fishermen. Whether this was intended from the beginning, and whether all fishermen concerned knew this from the start, that is an interesting question. In any case, the nature of fisheries management is such that it requires clarity and transparency to the industry as to what is the ultimate objective of the policy, that is, what is its real measure of “success”. In these pages, and in connection with Article 39 TFEU (see Chapter 2), this author will argue that the real measure of the “success” of the CFP is not simply to have more abundant fish resources, or fewer overexploited ones, but also, or primarily, to ensure high sustainable yields and ensure the maximum sustainable level of production of seafood.

The common fisheries policy: stability or change? The different meanings of policy success Policy success can have a very different meaning in different places, or for different societal interests and governments. There are plenty of examples, but one that easily comes to mind is the difference between management in a country like Iceland, where fisheries is the main industry, and other countries where fishing is a small, secondary industry in the context of the country’s economy. In the first case, the economic self-sufficiency of the fleets is essential for the whole country. Thus, the objectives for management must privilege competitiveness and economic output; the sector (and the whole country!) simply can’t survive without them. Here, the notion of policy success is necessarily related to an industry that can generate wealth for the country. In contrast, many countries in the EU have small fishing industries, representing much less than 1% of the country’s gross domestic product (GDP). In such cases, management can focus more on social objectives such as preserving the employment or the social fabric of coastal communities, even at the cost of lower profitability and competitiveness. In such cases, the country can even afford to subsidize the industry to buy social peace. Here, the notion of policy success can be more related to the preservation of the social fabric of coastal communities, even at the cost of a very low contribution to the country’s overall wealth. In the CFP, the establishment of a specific objective of reaching Fmsy levels by 2020 has been an important step to provide a clear long-term operational objective to the management of fish stocks, so as to end up with a long tradition of short-term decision-making. However, this operational objective does not mean that all the CFP is to be judged only by this indicator. In fact, the Fmsy is a situation around which one may expect that the other objectives of the policy (as stated in Article 39 TFEU) are more likely to be achieved. But this is just an expectation: MSY is a compromise that provides maximum biological production, but does not maximize employment, ecosystem preservation or economic profitability.

11

In other words, Fmsy is an operational objective that is expected to contribute to achieve the broader Article 39 objectives, but that does not replace them. Policy success is therefore a much broader notion than having all stocks at Fmsy . Policy success and realistic policy objectives Policy success is also strongly dependent upon the degree of realism of the policy objectives. Before the 2013 reform, the CFP suffered from lack of clear objectives for the management of fish stocks. This problem was (at least partially) resolved in this reform. The question now is whether the new objectives are realistic. The problem is not so much whether we have all the answers at this point in time. As this author has explained, the European law-makers were very conscious that when adopting new policy objectives nobody had all the answers to the numerous questions on practical implementation, and that this was seen as the only way to prevent these questions standing in the way of establishing the objectives (Penas Lado 2016, chapter 16). But the question is different: are these objectives really all fully attainable, and if so, by 2020? The reply to this question is certainly not simple and, for sure, is highly variable for different fisheries and areas. But it is necessary to bear in mind the relative “attainability” of these objectives, at least in certain circumstances, to better evaluate the policy results as a reasonable success, or as a complete failure. For example, the discard ban established under Article 15 of regulation 1380/2013 is basically the same for all areas, and the degree of flexibility to achieve it (notably the de minimis tolerance) is limited to 5% in all areas. Obviously, if in certain EU fisheries after 2019 we have discard levels of around 7% or 8%, down from current levels of around 40%, that can be viewed as a failure because the target is not attained, but such a dramatic reduction of discards would be an extraordinary accomplishment in reality. If we look at other places, for example the US, we see very different levels of discards and also a different level of ambition in the policy

12

Chapter 1

for different fisheries; the results are evaluated in terms of the realized reductions in discarding levels as compared to the initial levels, but without trying to obtain exactly the same results in all fisheries (NOAA 2016). In comparison, in the new CFP even reasonably good success in reducing discard levels more than in the US would be considered a failure, when comparing such results with a very rigidly defined objective. The same applies to the MSY objective, particularly to the “aspirational” objective of having all stocks at levels of biomass “above Bmsy .” As we will see below, scientists agree in saying that having all stocks in a marine ecosystem at Bmsy is probably not attainable, because of inter-species considerations. In addition, we have also seen that having all stocks at Fmsy cannot be done without serious foregone yields, which can be considered as not corresponding to some of the objectives of Article 39 TFEU. This is of particular relevance when we deal with mixed fisheries, where individual stock parameters are difficult to combine meaningfully. In these cases, Gaichas et al. (2017) conclude: There is no single combination of fishing mortalities that provides for MSY for all species simultaneously, so accounting for stock productivity and ecosystem trade-offs is key to providing reliable advice and to avoid unrealistic expectations. (Emphasis added)

If, as a result of the implementation of the CFP, we have a majority of stocks within Fmsy values, and many of them with increased trends in biomass, even if they are not all above Bmsy that would be a historical success for the policy. Yet, when comparing such results with the policy objectives as defined legally in Article 2 of Regulation 1380/2013, they will certainly appear as a failure. This illustrates how policy objectives, when defined in a very rigid manner, can make reasonably good results look like policy failure. This is extremely important and deserves a careful discussion on how to interpret, evaluate and present the delivery of the policy objectives of the CFP.

Is 100% biological success possible? The way Article 2 of Regulation 1380/2013 is formulated seems to leave little doubt about the new objective of the policy: having all regulated stocks at Fmsy by 2020. Over and beyond the above considerations about the nature of the policy objectives, the question can also be asked in strict biological terms: can all biological objectives be achieved at 100%? And if so, at what cost? Species interactions take place at biological (predator–prey relationships) and technological level (species caught by the same gear). The level of fishing mortality potentially applicable to a prey species, for example, depends on the fishing mortality applied to its predators, and its competitors for the same food (Jacobsen et al. 2014). Conversely, the productivity of predators also depends on the abundance of their prey, as well as that of their competitors (Cury et al. 2011). All this has consequences when it comes to the management of mixed fisheries through single-species TACs. Mike Sissenwine, Pamela Mace, and Hans Lassen have summarized this in a very important paper (Sissenwine et al. 2014): In light of scientific uncertainty, natural variability in fish stock productivity (e.g. recruitment variability), ecosystem dynamics (species interactions that prevent all stocks from achieving MSY simultaneously), and the technological constraints in mixed fisheries that prevent optimal management of individual stocks, it seems unlikely that the amount of overfishing will ever be zero. What research and management costs and cumulative foregone yields are necessary to approach perfection (zero cases of overfishing and overfished stocks)? (Emphasis added)

The implications of this fact are very clear: the only way to achieve the objective enunciated in Article 2.2 of Regulation 1380/2013 is to accept “cumulative foregone yields” for a number of stocks. In other words, the only way to achieve MSY in all stocks is in fact to fish at less than MSY for a number, perhaps many of the stocks concerned, and thus failing to achieve the objective of Article 39 TFEU to maximize the production of sustainable seafood.

The common fisheries policy: stability or change? Rindorf et al. (2017) make the case for policy objectives that are more broadly defined with fisheries and ecological considerations: Management is more likely to meet policy objectives if it incorporates fishery and ecological interactions than would be the case if advice is just given from a single species perspective.

This clearly points to a more flexible way in evaluating the success or failure of the policy. In other words, the simple statistics on the percentages of individual stocks being overexploited or not is too a simplistic way to report and evaluate policy progress. A more flexible and multi-faceted reporting is necessary. Different Member States’ expectations It is also important to bear in mind that, over and beyond such Article 39 objectives, the reality of fisheries management in Europe is that different Member States have different expectations and objectives. While certain Member States want their industry to be self-sufficient economically and manage it like any other economic sector, including free market mechanisms, other Member States have self-declared social objectives that are best achieved through social engineering management, away from market mechanisms. The latter is typical of Member States where the fisheries sector is a frequent source of political contestation. In this case, the idea of MSW (“minimum sustainable whinge”) has been described as the way many governments handle fisheries management: to achieve a minimum level of complaining by the stakeholders (Pope 1983). Clearly, the notion of policy success or failure is viewed very differently in different Member States, and even among different regions within Member States. That only underscores the need to have a definition of “policy success” that goes far beyond the achievement of the operational objectives of Fmsy in 2020.

Policy results: how good are they? On the basis of the above, how can we judge the results of the CFP in recent years? These

13

results are evaluated by the Commission in at least two ways: • Since 2006, the annual “policy statement” (more recently called “Communication on fishing opportunities”) has summarized the status of fish stocks in Europe. Initially restricted to stock status, the annual document has been gradually extended to other policy questions, and in recent years has gradually become a more integrated evaluation of policy results in an increasingly wide range of policy outcomes. This report is traditionally based on independent scientific evaluations and this provides it with an important credibility. The 2018 Communication on fishing opportunities (EU 2018a) represents the best example of this trend. • Every 10 years, the policy is also evaluated in the documents presented by the Commission as justification for the next round of policy reform. This kind of evaluation is more a political one, and is entirely done by the Commission itself. I will base the evaluation of the policy on the above communication on fishing opportunities and, in particular, its technical annex (EU 2018b), because this is the most recent and updated analysis of policy delivery. In doing so, I will refer to the different objectives of the policy in Article 39 TFEU to discuss how much such objectives are being met in practice. Status of stocks Though not spelled out in Article 39 TFEU, it is obvious that the status of fish stocks is an essential measure of the success of the policy, notably because the objectives of Article 39 can only be reached if fish stocks are healthy and highly productive. Since the objectives of the policy are expressed in fishing mortality, the best indicator of stock status is the ration between the fishing mortality exerted on the stocks and the target fishing mortality established by the policy: Fmsy . Figure 1.2 shows these ratios for different areas where EU fisheries take place. Are these good results? In the Mediterranean, clearly not, in particular because there is not

Chapter 1

14

3

F/FMSY

2

Indicator

1

MED&BS: EU waters NEA: EU waters NEA: outside EU waters 0 2003

2006

2012

2016

Figure 1.2 Ratio between current fishing mortality and target fishing mortality in EU fisheries. Source:

Commission Staff Working Document SWD (2018) 329. Brussels, 11.6.2018.

even a positive trend. It is not just a matter of getting there on time, or completely: in this basin, the trend is not even positive. There is no possible way around it: the conservation policy in the Mediterranean is a complete failure. However, the results in the Atlantic are positive: the trend goes clearly in the direction of achieving fisheries at Fmsy on average. One can discuss if the trend is too slow, if the objective to have all stocks at Fmsy by 2020 will be achieved. We have seen above the difficulties in achieving perfection. In this context, the conservation policy in the Atlantic and outside can certainly be seen more as a success than a failure. Concerning the attainment of the expectation of biomass rebuilding “above Bmsy ” Figure 1.3 shows the evolution over time of total biomass of EU stocks. Again, the Atlantic shows a positive trend whereas such a trend cannot be observed on Mediterranean stocks. Given that achieving biomass objectives is much more elusive than achieving fishing mortality objectives (as we will see in Chapter 3) the policy in the Atlantic can be considered a reasonable success. In the Mediterranean, again, we must talk about policy failure. The scientific world has also looked at this question. A large study conducted by

Marchal (2016), comparing the CFP with the fisheries policy of Iceland, Australia and New Zealand, widely considered to be among the most advanced in the world of fisheries management, concluded that: The situation of EU fisheries has substantially improved over the period 2004-2013 in the North East Atlantic, with fishery status getting close to that of other jurisdictions, but the lack of recovery for the Mediterranean fish stocks remains a concern.

With the obvious exception of Mediterranean fisheries, the results of the CFP particularly over the last two decades, is in this sense a reasonable success. Fisheries productivity The above figures show a first result: fish abundance is increasing – in the Atlantic. However, if we talk about productivity in the sense of Article 39 TFEU we must refer not only to the amount of fish at sea, but rather at how much fish is actually being landed, sustainably. An increase in fish abundance at sea accompanied by a lower rate of exploitation of that fish is not an increase in productivity in that context. We will see in Chapter 13 that the CFP is not increasing the production of seafood.

The common fisheries policy: stability or change?

15

2.0

B/B2003

1.5

1.0

Indicator 0.5

Biomass in MED&BS Biomass in NEA

0.0 2003

2006

2012

2016

Figure 1.3 Evolution over time of total biomass of exploited fish stocks in EU waters, comparing the Mediterranean and Black Sea (MED&BS) with the North East Atlantic (NEA). Source: Commission Staff Working Document SWD (2018) 329. Brussels, 11.6.2018.

Figure 13.2 in Chapter 13 shows that the total landings from EU capture fisheries does not show a very clear upward trend despite the general increase in stock abundance since 2006 as shown in Figure 1.3. Only as of 2012 there seems to be a certain tendency to an increased in overall yields. This has to be looked at in connection with the rate of consumption of available quotas which, as we will see in Chapter 2, varies around 75%, which means that the policy results in roughly a quarter of all fishing possibilities not being used, something that cannot be considered satisfactory in a policy that is meant to promote food security. As for aquaculture, total EU production remains stagnant since the turn of the century (see Figure 13.2 in Chapter 13), despite many initiatives and important investment of public funds. Overall, the objective of increasing productivity is not (yet) achieved. This constitutes an important challenge that is discussed in Chapter 13. Optimum utilization of the factors of production, in particular labor The number of jobs on board European vessels has been diminishing since the inception

in the policy. Even in recent years, despite improvements in stock status, the total number of employed fishermen has fallen from 140 000 in 2008 to 125 000 in 2017 (Figure 1.4). This is often referred to as a failure of the CFP (even though the socio-economic model to fish EU resources remains a national decision) and the EU itself is often criticized (and blamed) for it. But is this fair? Let’s look at this from another angle, beyond numbers. Actually, the fishing industry suffers the same phenomenon than any other established industry: the increases in productivity due to the introduction of new technologies inevitably reduces the labor necessary to produce a given product. As technical improvement takes place, the same amount of fish can be caught with fewer vessels and these vessels can be crewed by fewer workers. The reduction of employment in the fisheries sector, from that perspective, is the inevitable result of technical progress, like in any other established industry, and not necessarily an indication of failure. In addition, the reduction of employment is also an imperative of the improvement of habitability and working conditions on board fishing vessels. This author is familiar with

Chapter 1

30

employment (thousand)

160 140

25

120 20

100

15

80 60

10

40 5

20

average wage (EUR per FTE)

16

2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 Total employed

FTE

Average wage per FTE

Figure 1.4 Evolution of number of jobs at sea and average wages in the EU fishing fleet. Source: The 2017

Annual Economic Report on the EU Fishing Fleet (STECF 17-12). European Commission. JRC Science for Policy Report. Edited by Natacha Carvalho, Michael Keatinge and Jordi Guillen.

fishing vessels of around 400 GT accommodating, in the 1970s, 15 or 16 crewmen, all crammed in tiny cabins and without a shower. When one considers the reduction of jobs at sea as a “policy failure” one must look instead at what this reduction also represents: a substantial improvement in habitability and working conditions for European fishermen. The reduction of employment in the fishing sector is strongly resented in many fishing areas of the EU, and often blamed on the failure of the CFP to preserve employment. However, the most successful countries in the world in terms of management (often presented as the model the EU should follow) have been losing jobs at sea in recent decades, as a result of greater automation and increased fishing power of modern vessels. In Iceland, the official Government’s website3 indicates that: The highest number of people working in the fishing industry was in the 1980s about 16 thousand employees. After that the number of people has declined constantly to the current level of about eight thousand.

This reduction, however, corresponds also to an increase in the average levels of salaries by 3 www.government.is/fisheries/

fishermen. This shows the trends toward fewer but better jobs. In Norway, the number of jobs has been steadily decreasing for many years. According to FAO, full-time employment in the catching sector decreased from 17 087 in 1996 to 13 260 in 2003 (FAO 2016). These two examples, coming from countries generally acknowledged as successful examples of preserving a thriving and competitive catching sector, illustrate the point that the reduction of jobs at sea is not necessarily a sign of policy failure, but rather an inevitable tendency in modernizing fisheries. In this context, the data of Figure 1.4 show a very gradual reduction of employment, accompanied by a certain increase in average wages, an evolution that can be considered generally positive. This picture is variable regionally, with positive trends in the Atlantic and more stable in the Mediterranean, but its shows that in terms of employment, the CFP can claim reasonably good results, particularly in recent years, coinciding with the positive trend in the status of (Atlantic) stocks. Standard of living of producers In recent years, the profitability levels of EU fisheries have improved substantially. This has translated in some cases in improved wage

The common fisheries policy: stability or change?

17

Revenue and profits 193%

2

179%

176%

134%

136%

113%

110%

112%

2016

2017

2018

1.8 151%

1.6

142%

1.4 1.2

124%

129%

123%

107%

125%

120%

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106%

106%

2014

2015

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100%

1

152%

104%

105%

2009

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110%

104%

101%

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0.8 2008

Revenue

2011

Gross Value Added

Gross profit

Figure 1.5 Evolution of the level of revenue and profits in EU fishing fleets. Source: Commission Staff Working Document SWD (2018) 329. Brussels, 11.6.2018.

levels; In some cases, however, there is a trend toward higher profitability but not better salaries: the substantial increase in foreign crews in many EU Member States (in some cases with very low salary levels) indicates a reverse trend: that of higher profitability through lower wages. As a result, there is a trend toward higher wage levels (Figure 1.4) but this is much less clear than the increase in profitability levels (Figure 1.5). By region, the Atlantic is doing better than the Mediterranean. Not surprisingly, the positive trend in the status of fish stocks in the Atlantic area results in generally higher profits and better wages, while in the Mediterranean, the lack of progress on stock status (see Chapter 5) translates in profitability and wage levels that are also generally stagnant (EU 2018c). In fact, these profitability levels have been achieved at a constant level of revenue, which implies the improvement corresponds to gains in productivity, and this in some cases may be based on lower wage levels in certain fleet segments. This shows a picture that raises mixed feelings. Profitability levels are on the rise, but these do not always translate into better wages. Another element that must be also evaluated as part of the standard of living is the

question of working conditions and safety on board. Although these are rather elusive to report quantitatively, anyone involved with the fishing sector will agree with the dramatic improvement that has taken place in safety levels and working conditions on board European fishing vessels, at least in those fleets that have been renovated (up until 2004, with EU public aid). These improvements, difficult though it may be in quantitative terms, is without doubt one of the biggest successes of the CFP. Stability of markets and availability of supplies at reasonable prices The CFP is not able to supply the consumption levels of fisheries and aquaculture products in the EU. While fish production in the EU amounts to 5.88 million tonnes, 1.9 million tonnes are exported, while 8.68 million tonnes have to be imported to account for a total supply of 14.56 million tonnes, corresponding to an apparent consumption of 12.77 million tonnes (EU 2017). That means that the CFP supplies only 46% of the total consumption of fisheries and aquaculture products by European consumers. And this self-sufficiency is not only low: it is also decreasing. This hardly looks as a policy success. However, considering the size of the European

18

Chapter 1

fishing grounds as compared with Europe’s population, even the most successful CFP could not, in all likelihood, cover 100% of the consumption of these products. So in any case it is a mitigated failure: even with increased productivity of the wild stocks and higher aquaculture production, it is difficult to see how the EU could one day become entirely self-sufficient. The 46% figure represents a partial failure, not a complete one. And it can be attributed to several factors: • The inability on obtaining the maximum sustainable production from the wild fish resources, for a number of reasons that will be examined in Chapter 2. • The sluggish development of aquaculture production, practically stagnant from the beginning of the century. • The consumption patterns of European consumers, who tend to dismiss low value fish and demand high-end quality products that the EU waters have in limited supply. The two first questions are an indication of relative policy failure. Other questions: integration of environmental concerns As we will see in the next chapter, the integration of environmental concerns is also an objective of the policy, according to Article 11 TFEU. In general terms, this integration has gone a long way, and includes the EC Natura 2000 areas in European seas, the prohibition to catch a number of protected species, rules for the protection of marine mammals and seabirds and so on. Although this is and will always be a matter for discussion, one can safely assume that Article 11 TFEU is being reasonably well-implemented in the CFP. We will look at this in more detail in Chapter 8. Is this good enough? With all the above caveats, the CFP can be considered as a policy that at least in the Atlantic and Baltic area, is slowly achieving its main objectives and gradually delivering most of the objectives of Article 39 TFEU. Though certainly not a resounding success, it is certainly not

the kind of failed policy that is presented by a number of stakeholders, and even scholars (Khalilan et al. 2010). Overall, the results of the policy are moderately positive. And even the poor results (in biological and economic terms) of the Mediterranean fisheries do not seem to trigger a strong appetite for change: the preservation of the social fabric of coastal areas, even at the cost of low productivity and low profitability, seems to be stronger than the drive for change. Overall, the results of the CFP are moderately positive, particularly in recent years. For this reason, there is no justification for dramatic evaluations of the CFP as a complete failure. Even if not all objectives are achieved, and their achievement may not be complete and still take time, the policy is on the right track. And where it is not (the Mediterranean) this can be clearly related to the relative absence until recent times of a real policy to manage fishery resources. The CFP is actually better than it has traditionally been given credit for.

Improving reporting of policy performance As indicated above, the evaluation of the CFP as a success or as a failure also depends largely on what we look at, and this in turn is a result of what we report about. It is important to underline that in most fisheries policies around the world, while the objectives are socio-economic as well as biological, the reporting on policy performance has been almost exclusively biological. The CFP has also suffered from this for a long time. This is why it is so important that the reporting on policy performance actually includes all the relevant questions that constitute the various policy objectives, and not just the status of fish stocks. The current reporting Policy progress toward MSY must be reported regularly by the Commission, as required by Article 50 of Regulation 1380/2013: The Commission shall report annually to the European Parliament and the Council on the progress on achieving maximum sustainable yields and on the situation of fish stocks . . .

The common fisheries policy: stability or change? In addition, reporting is also due on the implementation of the landing obligation. So far, the Commission has reported on policy progress by showing statistics of the number of stocks that are fished at Fmsy level, as this is the operational objective of the new CFP (EU 2018a,b). Indeed, the new reporting requirement of the reformed CFP continues the tendency of the dichotomy between “socioeconomic objectives but biological delivery.” This makes the exercise very simple and objective (under the condition that the evaluation be done by independent scientists). However, it carries a risk: as the objective applies to all stocks, a pure statistical analysis can present a reasonably good result as a policy failure. For example, if by 2020 all the important stocks are within Fmsy but a few secondary ones are not, this could be considered, particularly in historical terms, as an important achievement. Yet, the pure statistical analysis showing that the proportion of stocks at Fmsy is not 100% would appear as a failure, and calls for more dramatic management measures. In addition, the current reporting referring only to MSY achievement would ignore some of the objectives of Article 39 TFEU, notably those on providing European consumers with abundant affordable fish, or that of ensuring a high standard of living to the producers. A more complex question is that related to the aspiration of achieving Bmsy levels as a result of the Fmsy -based policy objectives. Mixing Fmsy levels and Bmsy levels may be confusing, giving the impression that whenever Fmsy levels have been achieved but Bmsy levels are still not reached, then the policy may be inadequate. The solution devised by the Commission is to ask ICES to report on general levels of biomass, as a result of the management of the stock concerned, but also as a result of any other ecological factor influencing biomass levels. In this way, the evaluation of biomass would not be a duplicate reporting on how individual stocks respond to management, but rather a more general evaluation of how the ecosystem is reacting to management, together with other relevant factors. This approach should show, in the years

19

to come, a picture of the ecosystem response to the management of the individual stocks, and cast more light as to whether the maximum levels in biomass for all the stocks can be reached all at once. A positive evolution: the 2018 policy statement The Commission has identified the above problem and, in recent years, the annual communication on fishing opportunities is gradually including a wider scope of policy outcomes, beyond the simple delivery of MSY by individual stocks. The last of these reports (EU 2018a,b) includes, in addition to reporting on stock status, the results of the policy in socio-economic terms, thus making reporting increasingly corresponding to the wide scope of objectives of Article 39 TFEU. Although this is just a preliminary step, it is a very important one in that it is a turning point in the traditional reporting about the CFP: it introduces reporting on the evolution of socio-economic and ecological parameters that match much better the multi-objective nature of the policy. The US example: The Fish Stock Sustainability Index In the US, the National Oceanic and Atmospheric Administration (NOAA) measures the performance of U.S. federal fisheries through the Fish Stock Sustainability Index (FSSI). First implemented in 2005, the FSSI is a quarterly index that currently includes 199 fish stocks selected because of their importance to commercial and recreational fisheries. The FSSI measures the performance of these important fish stocks, which represent 85% of total catch. The FSSI increases when NOAA Fisheries determines the status of a stock and when a stock’s status improves (either no longer subject to overfishing, no longer overfished, biomass increases to at least 80% of target, or is rebuilt). The number of stocks in the index may be revised as new fisheries develop and stocks are assessed. The US system is equivalent to the one established in the EU since 2006 as explained above,

20

Chapter 1 secondary in the US because of the absence of a clear-cut time limit for reaching the objectives, but the idea could be useful for Europe, as we will see below.

in that it puts together regularly the statistics corresponding to the status of the stocks regulated according to their biological status. However, the index does not refer to any of the other objectives or considerations included in the objectives of the Magnuson-Stevens Act. In particular, under the US 10 national standards (see Chapter 2 “Policy objectives in other countries; The United States”), the first one being to “Achieve optimum yield and prevent overfishing” the index is clear in expressing the level of overfishing, but does not indicate if the stocks concerned are exploited at their “optimum yield”. In fact, as we will see below, the extremely positive picture shown by this index (see Figure 1.6) must be compounded with the significant level of under-exploitation of a number of these stocks (see Chapter 2 “the US case”), for which it is debatable whether they are exploited at “optimum yield” levels. A final comment on this index: it reflects net results, not the process leading up to them. The difference between “over-exploiting” (F > Fmsy ) and “over-exploited” (B > 0.5Bmsy ) would allow the establishment of a difference between the stocks that are no longer overexploited and those that are on the right track (at fishing mortality levels) but that are not yet at the biomass level. This differentiation is perhaps

Possible future improvements in reporting on the CFP The reporting under Article 50 of Regulation 1380/2013 must be done seriously and carefully every year. This reporting is currently being done by STECF. This is a guarantee of objectivity and independence. Although the reporting is done under a Commission Communication, therefore a document under its own responsibility, its credibility requires that the data on MSY and discard levels be prepared by independent scientists without political meddling. While it is obvious that the reporting required under Article 50 of Regulation 1380/2013 should continue, the question is whether, in the light of the objectives of Article 39 TFEU, it would not also be important to report on the achievement of the other objectives of such article of the Treaty. The idea could be to refer to the biological status of the stocks, as ever before, but to add considerations on the level of achievements of the different objectives of Article 39 TFEU, to underline that the ultimate objective of the management of fish stocks is to achieve all such goals.

800

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Year Figure 1.6 Evolution over time of the United States’ Fish Stock Sustainability Index (FSSI) between 2000 and

2015. Source: NOAA (www.nmfs.noaa.gov/sfa/fisheries_eco/status_of_fisheries/fssi.html).

The common fisheries policy: stability or change? In any case, the policy changes introduced by Brexit will also inevitably change the reporting about CFP performance: since many more decisions will have to be taken in the context of bilateral or trilateral (with Norway) negotiations, it will become more difficult to attribute credit or blame to any particular party in explaining policy outcomes. Hilborn (2018) provides an example of how reporting on stock status can be made more complete by referring not only to the number of stocks fished at or beyond Fmsy levels, but also on how much yield is being lost as a consequence of suboptimal abundance and fishing pressure. Thus conveying more useful information on the management system is maximizing long-term sustainable yield, and not just eliminating overfished stocks. In the CFP, some ideas for improved reporting are presented below. A more meaningful reporting on stock status Current reporting on stock status is basically a statistical exercise on the number and percentage of stocks that are on target. Yet, this statistical exercise may have relatively little meaning, both ecologically and economically. For example, if from one year to the next two very small stocks with low economic value reach their Fmsy objective, but one very large (and economically valuable) stock is fished at higher than Fmsy , the annual statistics would look good: one more stock at Fmsy level! Yet, economically this can be negative, even ecologically negative if the large stock has a crucial role in the marine ecosystem concerned. It is therefore important to find more meaningful ways of reporting on the state of the stocks. Some ideas can be: • To report on the total biomass of the stocks fished at Fmsy as compared to the rest. • To report on the total market price of stocks fished at Fmsy as compared to the rest. With these two relatively simple indicators, the state of the stocks can be at an ecologically and economically more meaningful way.

21

The traditional reporting on biological objectives could be more nuanced with the following ideas: • Overall evolution of the biomass of the species under management, as a better ecological indicator of the evolution of the ecosystem. The evolution to the biomass of individual stocks “above Bmsy ” would be better understood in that context. • The evolution of the F levels. Even if certain stocks do not achieve the Fmsy target by 2020 in some cases, the evolution of F values would show whether the F values are at least being reduced, in other words if, for the stocks where the target is not reached, at least the F reduction is on track. • In the Mediterranean, the choice of fewer, more representative stocks should be made to ensure that annual reporting really reflects an evolution in comparable terms that would allow progress to be detected. In any case, strong emphasis should be made on the trends. Beyond annual ups and downs, it is the trends toward achieving the objectives which matter most. Socio-economic results As we saw, Article 39 TFEU establishes clear socio-economic objectives, however, the reporting on policy progress never included these. This new reporting could include: • A summary of the value of all the landings of all species confounded, as an indicator of the total revenue generated by the sustainable exploitation of the stocks and a summary of average income of fishermen in different fleet segments across Europe, as an indication of the evolution of the standard of living of the producers. • A description of the trends in the average prices of fish, to evaluate whether the CFP is providing for affordable fish for European consumers, taking account as much as possible the effects of imports, to the extent that such effects can be evaluated. • A description of the trends observed in salary levels and other indications of working conditions, to complement the data on number

22

Chapter 1

of workers with the evaluation of the quality of the employment of these workers. • An overall reporting on the total amount of seafood produced by the CFP, not only in capture fisheries, but perhaps also through aquaculture, as a result of the EU policy to favor this development since the beginning of the structural policy. This kind of reporting would indicate to what extent the CFP is making progress to deliver one of the objectives of Article 39 TFEU. Environmental results Beyond Article 39, the CFP must also contribute to larger environmental objectives. These could also be subject to regular reporting. This reporting would include: • A summary of all fish abundance in the fishing grounds, as an indicator of the potential biomass, for all stocks confounded, that can be extracted by fishing. This would complement the information corresponding to individual stocks with an evaluation of the status of the marine ecosystem and its carrying capacity. In this context, the reporting on the achievement of levels of stock abundance at levels “above Bmsy ” would be much better understood. • A summary of a simple indicator of marine biodiversity. Such an indicator (see Chapter 8, in the section “The effects of fishing on the environment”) would illustrate how the fishing activity is affecting biodiversity levels in EU waters. To the extent possible, this reporting should put the evolution of biodiversity into perspective, evaluating the different causes for biodiversity loss (or gain) including other human activity. This could also include an evaluation of the evolution of the “mean trophic level” that has been proposed to measure the alteration of marine food webs by fishing (see Chapter 8, under “Preserving marine biodiversity”). This would make it transparent if the CFP is really producing a “fishing down the food web” effect. • In that vein, progress in protecting areas of high biodiversity in European waters could

be added. This would be important to judge overall progress on biodiversity: in theory there could be a certain loss of biodiversity in heavily fished areas but that could be compensated by a higher proportion of areas protected from fishing as part of the Natura 2000 network. This reporting would shed objective light on the question of the real contribution of fishing activity in relation to biodiversity conservation. Results on the achievement of high, sustainable supply of food Since Article 39 TFEU is basically an article about food security and, whatever the changing circumstances, the article has never been changed by the European lawmakers, the reporting could also refer to the way in which the CFP contributes to food security in Europe. This would include, for example: • A summary of all catches taken from the stocks, as a general indicator of the amount of protein being produced; and an indication of the percentage that such catches represent as compared with the total biomass. In other words, what percentage of the biomass are we exploiting? • A description of the sources of any mismatch between the maximum potential yield and the realized yield; the relative contribution of over-exploitation and under-exploitation of resources as a source of inefficiency in fully exploiting the biological potential of the European fish resources. The above ideas would provide the reporting on the status of European fisheries with a much wider scope of considerations and elements of analysis to evaluate the extent at which the objectives of Article 39 TFEU are being achieved by the CFP.

If the CFP is not so bad, why advocating policy change? This would seem to be contradictory: the strong advocacy of policy change in these pages does not seem to correspond to an evaluation of policy performance that we can summarize at least as “not so bad” and certainly better

The common fisheries policy: stability or change? than is usually given credit for. Why should we introduce further changes in the policy then? The reasons for change are three-fold: • Even if “not so bad”, the policy has the potential to be much better in many regards, and the policy should aspire to be much better than just “not so bad.” There is plenty of opportunity for improvement in many areas so there is no reason for self-complacency with the moderate achievements. • The new policy targets established in the 2013 reform will in some cases be very difficult to achieve. Even if the best efforts are made to that effect, the results are likely to be disappointing, and this requires these policy objectives to be revised in the light of the ongoing experience to evaluate whether they are achievable in the first place, and at what cost. • The policy has to face a number of challenges that may seriously question the positive trends observed in recent years. Even policy strands that work relatively well today will be under pressure from other factors, such as climate change and other global trends. The policy can never assume that what has worked in recent years will necessarily continue to do so under the new context that is unfolding. It is essential that the relatively positive view of policy performance does not lead to self-indulgence: there is absolutely no reason to relax; recent trends can be reversed and new challenges may seriously question the achievement of policy objectives. It is for these reasons that a policy that is, arguably, not so bad, should never rest on its moderate laurels, and always be ready for improvement.

References Cury, P.M., Boyd, I.L., Bonhommeau, S. et al. (2011). Global seabird response to forage fish depletion – one third for the birds. Science 334 (6063): 1703–1706. https://doi.org/10.1126/ science.1212928. Dichmont, C., Pascoe, S., Kompas, T. et al. (2010). On implementing maximum economic yield in

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commercial fisheries. Proceedings of the National Academy of Sciences 107: 16–21. Dudley, G. and Richardson, J. (1996). Why does policy change over time? Adversarial policy communities, alternative policy arenas and British trunk roads policy. 1945–1995. Journal of European Public Policy 3 (1): 63–83. EU (1970a). Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources. OJ. No L 24. 27.1.83. EU (1970b). Council Regulation (EEC) No 171/83 of 25 January 1983 laying down certain technical conservation measures for the conservation of fishery resources. OJ. No L 24. 27.1.83. EU (2002). Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. Official Journal of the European Communities L 358 of 31.12.2002 59. EU (2006a). Communication from the Commission to the Council and the European Parliament implementing sustainability in EU fisheries through maximum sustainable yield. COM (2006) 360 final. Brussels, 4.7.2006. EU (2009a). Green Paper. Reform of the Common Fisheries Policy. Brussels, 22.04.2009. COM (2009) 163 final. EU (2009b). 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. OJEU. No L343 of 22.12.2009, pp. 1–50. EU (2017). The EU Fish Market. 2017 edn. EUMOFA. European Market Observatory for Fisheries and Aquaculture Products. 94 pp. EU (2018a). Communication from the Commission to the European parliament and the Council on the State of Play of the Common Fisheries Policy and Consultation on the Fishing Opportunities for 2019. COM (2018) 452. EU (2018b). Commission Staff Working Document accompanying Communication (2018) 452 final. Brussels, 11.6.2018. SWD (2018)329. EU (2018c). The 2018 Annual Economic Report on the EU Fishing Fleet (STECF 18-07) (eds. N. Carvalho, M. Keatinge and J. Guillen). Brussels: European Commission.

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FAO (2016). The State of World Fisheries and Aquaculture. Opportunities and Challenges. Rome: Food and Agriculture Organization, 200 pp. Gaichas, S.K., Fogarty, M., Fay, G. et al. (2017). Contribution to the supplement: ‘long term fisheries management symposium’ combining stock, multispecies, and ecosystem level fishery objectives within an operational management procedure: simulations to start the conversation. ICES Journal of Marine Science 74: 552–565. https://doi .org/10.1093/icesjms/fsw119. Hilborn, R. (2007). Defining success in fisheries and conflicts in objectives. Marine Policy 31: 153–158. Hilborn, R. (2018). Measuring fisheries performance using the “Goldilocks plot”. ICES Journal of Marine Science https://doi.org/10.1093/icesjms/fsy138. Jacobsen, N.S., Gislason, H., and Andersen, K.H. (2014). The consequences of balanced harvesting of fish communities. Proceedings of the Royal Society B: Biological Sciences 281 (1775): 20132701. Khalilan, S., Froese, R., Proelss, A., and Requate, T. (2010). Designed for failure: a critique of the Common Fisheries Policy of the European Union. Marine Policy 34 (6): 1178–1182. Marchal, P., Andersen, J.P., Martin, A. et al. (2016). A comparative review of fisheries management experiences in the European Union and in other countries worldwide: Iceland, Australia and New Zealand. Fish and Fisheries 17 (3)): 803–824. Meijerink, S. (2005). Understanding policy stability and change. The interplay of advocacy coalitions and epistemic communities, windows of opportunity, and Dutch coastal flooding policy 1945–2003. Journal of European Public Policy 12 (6): 1060–1077. NOAA (2016). National Marine Fisheries Service. U.S. National Bycatch Report. First Edition, Update 2. L.R. Benaka, D. Bullock, J. Davis, E.E. Seney, and H. Winarsoo (eds). U.S. Department of Commerce, 90 pp. Pascoe, S.D., Plaganyi, E.E., and Dichmont, C.M. (2017). Modelling multiple management objectives in fisheries: Australian experiences. ICES Journal

of Marine Science http://dx.doi.org/10.1093/icesjms/ fsw051. Penas Lado, E. (2016). The Common Fisheries Policy. The Quest for Sustainability. Wiley Blackwell 392 pp. Pereau, J.-C., Doyen, L., Little, L., and Thebaud, O. (2012). The triple bottom line: meeting ecological, economic and social goals with individual transferable quotas. Journal of Environmental Economics and Management 63: 419–434. Pope, J. (1983). Fisheries resource management theory and practice. In: New Zealand Finfish Fisheries: The Resources and their Management (eds. J.L. Taylor and G.G. Baird), 56–62. Auckland: Trade Publications. Rindorf, A., Dichmont, C.M., Thorson, J.T. et al. (2017). Quo vadimus. Inclusion of ecological, economic, social and institutional considerations when setting targets and limits for multispecies fisheries. ICES Journal of Marine Science 74 (2): 453–463. https://doi.org/10.1093/icesjms/fsw226. Schweiger, L. (2010). The Evolution of the Common Fisheries Policy: Governance of a Common-Pool Resource in the Context of the European Integration. Institute for the European Integration. Austrian Academy of Sciences. Working Paper No 07/2010, 88 pp. Sissenwine, M.M., Mace, P., and Lassen, H.J. (2014). Preventing overfishing: evolving approaches and emerging challenges. ICES Journal of Marine Science 71 (2): 153–156. https://doi.org/10.1093/icesjms/ fst236. Symes, D. (1997). The European Community’s common fisheries policy. Ocean and Coastal Management 35: 137–155. Symes, D. and Crean, K. (1995). Historical prejudice and invisible boundaries: dilemmas for the development of the Common Fisheries Policy. In: The Peaceful Management of Transboundary Resources (eds. G.H. Blake et al.). London: Graham and Trotman. Zimmermann, F. and Yamazaki, S. (2017). Exploring conflicting management objectives in rebuilding of multi-stock fisheries. Ocean and Coastal Management 138: 124–137.

CHAPTER 2

The objectives of the CFP

Introduction The first fundamental element for a successful fisheries policy is to have clear objectives. The Common Fisheries Policy (CFP) has for a long time lacked clear operational and fisheryspecific objectives. The general policy objectives enunciated in the treaties are an extension those of the Common Agricultural Policy and are not sufficiently specific for fisheries management, resulting in decisions that all too often have been the result of short-term considerations or pure political negotiations, rather than the outcome of an objective pursuit of clearly defined goals. The 2002 reform introduced the objective of achieving “ecological, economic, and social sustainability” (EU 2002), as a way to translate the objectives of the Common Agricultural Policy in the Treaty into the management of wild, exhaustible resources. This was an improvement, but still did not provide a clear target for the management of fish stocks, and did not establish a deadline to achieve such a target either. Thus, the problem largely remained, and after 2002 many management decisions were still taken on short-term, political considerations. This was referred to by the Commission itself as one of the five structural deficiencies of the policy in the context of its diagnostic prior to the last reform (EU 2009a).

The 2013 reform adopted for the first time a clear objective for fisheries management: achieving maximum sustainable yield (MSY) for all regulated stocks by 2020. This was a breakthrough, in that it provided for the first time a measurable objective as well as a time limit to achieve it. However, this breakthrough does not resolve all the problems. The scientific literature is already referring to this: the principles are promising, but the specific implementation is not necessarily always conducive to smooth implementation. For example, certain authors indicate that although the mentioned reform elements are in general very promising, their concrete design does not always meet existing expectations (Salomon et al. 2014). In particular, the notion of MSY is one that can be implemented in many different ways: expressed in biomass or fishing mortality, used as a limit or a target and so on. Some of these questions were addressed in the trilogue to adopt the new regulation, but others were not. So even under the much clearer policy objectives there is still ample room for interpretation, and this has implications also on the consideration of policy implementation as a success or a failure. Such discussion can have very far-reaching consequences on the way the new CFP is implemented, with implications on the amount of fishing possibilities and their conditions

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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for exploitation that can affect fishermen’s livelihoods. In the context of these discussions, many different interpretations could be taken and they could indeed be all legitimate. Some of these interpretations find inspiration in the experience of other countries having encountered similar issues before. There has been a recent trend to compare the performance of the CFP with that of the fisheries policy of countries such as the US, Norway, or New Zealand. These comparisons have underlined the greater success of these policies to reduce overfishing as compared to the CFP. On that basis, certain stakeholders such as environmental Non-Governmental Organizations (NGOs) often suggest that the CFP should seek inspiration in the policies of these third countries. However, while recognizing the value of these experiences, Europe has to find its own way to interpret and implement these provisions, and in that sense, there is no better source of inspiration than Article 39 Treaty on the Functioning of the European Union (TFEU).

The common fisheries policy in the Treaty Fisheries policy: a multi-objective policy As we will see below, fisheries management is in general a multi-objective policy around the world, and the CFP is no exception. Although most fisheries management systems across the world often focus on delivering pre-determined biological targets, these are practically never the only declared objective of the policy. This implies that fisheries management must evaluate the trade-offs across different and often conflicting ways in which people value and use the marine resources (Halpern et al. 2012; Longo et al. 2015). Different models of fishery management provide different solutions to this problem. The objectives in Article 39 of the Treaty The objectives of the CFP in the Treaty are the same established for the Common Agricultural

Policy originally in the Treaty of Rome. These objectives apply mutatis mutandis to the CFP, as laid down in Article 39 TFEU. Article 39 TFEU reads as follows: 1 The objectives of the common agricultural policy shall be: (a) to increase agricultural productivity by promoting technical progress and by ensuring the rational development of agricultural production and the optimum utilization of the factors of production, in particular labor; (b) thus to ensure a fair standard of living for the agricultural community, in particular by increasing the individual earnings of persons engaged in agriculture; (c) to stabilize markets; (d) to assure the availability of supplies; (e) to ensure that supplies reach consumers at reasonable prices. 2 In working out the common agricultural policy and the special methods for its application, account shall be taken of: (a) the particular nature of agricultural activity, which results from the social structure of agriculture and from structural and natural disparities between the various agricultural regions; (b) the need to effect the appropriate adjustments by degrees; (c) the fact that in the Member States agriculture constitutes a sector closely linked with the economy as a whole.

These objectives reflect the need in 1958 to ensure that EU policy would provide for food security in Europe. The fact that the Treaty of Lisbon in 2009 did not change these objectives at all can only be interpreted as meaning that agriculture (and by extension fisheries) continue to be policies to ensure Europe’s food security. In subsequent Treaties after 1958 other horizontal considerations were added, such as the need to ensure compatibility with environmental policy, but the main thrust of the agricultural/fisheries policy has remained unchanged and clearly focused on ensuring the provision of a steady supply of food for Europeans as well as adequate economic standards for producers. If the objectives of the new CFP as defined in Regulation 1380/2013 need to be considered against the background of Article 39 TFEU,

The objectives of the CFP the question is then to determine what of the different interpretations of that regulation contributes better to the achievement of the objectives in the Treaty. The different objectives of Article 39 can be best achieved in a situation characterized by an abundant, steady supply of fish and by a well-functioning market: • The increase in productivity requires that resources be brought to the level where they can produce high yields on a stable basis. • The high standard of living for producers require that there is a good balance between the number of fishermen and their means of production and the natural resources they exploit. • The stability of markets requires professional organizations that control supply and demand. • To assure the availability of supplies (these being highly fluctuating natural resources) requires managing these resources at a point at which their biological variability is reduced as much as possible. • To ensure reasonable prices it is necessary to have a well-functioning open market avoiding monopolies. From the above one can suggest that bringing resources to levels around maximum sustainable yield and exploiting them through efficient market conditions are the best way to implement the objectives of Article 39. It is also worth noting that paragraph 2(b) states that the policy should establish its adjustments by degrees. This is a very important element for the CFP. Indeed, the new CFP has incorporated this principle by enshrining the long-term management plans as the centerpiece of fisheries management, and also by establishing phasing-in periods for the new objectives, such as the landing obligation. But beyond these cases this principle must be considered also as a basis to try to avoid too dramatic changes in fishing possibilities where possible: although fishery resources are fluctuating by nature, so that very stable catch quotas are an illusion, the policy should try to develop all possible mechanisms to ensure that the natural

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fluctuations in fishery resources are smoothed out as much as practicable. It is important to bear this in mind because the CFP of 2013, when it defined clear operational objectives and specific deadlines for the first time, still left ample room for interpretation on how these objectives should be implemented in practice. This requires further guidance on policy implementation. When looking for such guidance as to how the objectives must be implemented, it seems clear that it is the text of Article 39 TFEU that should be at the source. However, it is frequent in the public debate to hear that the objectives of Article 39 TFEU for fisheries are old-fashioned, food security objectives for the post-war European agriculture, and that they are out of tune with today’s principles on the management of fishery resources, with other countries having much better fishery objectives. Is this the case? We will examine below the fundamental principles that inspire the fisheries legislation of third countries often cited as a possible model for the EU.

Other legal principles applicable to the CFP Although Article 39 TFEU constitutes the legal basis for the CFP, this basis is not isolated: many other principles apply. Integration of environmental concerns An obvious example is that of the application of environmental objectives, laid down in Article 11 TFEU: Environmental protection requirements must be integrated into the definition and implementation of Community policies, in particular with a view to promoting sustainable development.

It is to be noted the emphasis of this provision is on the “promotion of sustainable development,” showing that the intention of the legislator was not to view environmental protection as a good in itself, but rather to promote development in a way that will ensure sustainability. The nuance is important, because it means that when environmental protection will

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conflict with other policy areas, the objective of the Treaty is certainly not to prevent development, but rather to ensure it is sustainable. The EU’s four freedoms and the internal market Beyond this most obvious case (because of the frequent overlap between fisheries and environmental policy) it is also important to underline that all other principles applicable to EU policies also apply to fisheries policy: there is no exception to this. Principles such as the “four freedoms” of the internal market are also of full application to the fisheries policy. These freedoms (free movement of people, goods, capital, and services) constitute the backbone of the EU internal market and, although their seamless implementation is still not fully achieved, it remains a key objective of EU policy, with a potential overall gain of three trillion Euros, according to a recent report (EU 2017). The objective of the single market, in turn, is to be conducive to increased competition, increased specialization, larger economies of scale, allowing factors of production to move to the area where they are the most valued, thus improving the efficiency of the allocation of resources.1 This clearly points to economic dynamism, not to the preservation of the status quo that so often has characterized the CFP. All this means that, when looking at the performance of the CFP as an EU policy, one must, for sure, look at the way in which the biological resources are preserved, at how the marine ecosystem is protected, but also whether the four freedoms of the single market are fully achieved, even more so in a policy which is among the few exclusive competences of the EU. This is, however, a question that is rarely looked at in the context of mainstream discussion and debates on fisheries policy. The principle of proportionality It is also relevant to refer to the principle of proportionality. Under this principle, the action of the EU must be limited to what is necessary to achieve the objectives of the Treaties. In other 1 https://ec.europa.eu/growth/single-market_en/

words, the content and form of the action must be in keeping with the aim pursued. The principle of proportionality is laid down in Article 5 of the Treaty on European Union. The criteria for applying it are set out in the Protocol (No 2) on the application of the principles of subsidiarity and proportionality annexed to the Treaties. This principle has implications for the CFP too, in particular when dealing with very marginal and secondary species, which may have on occasion a disproportionate influence on the policy despite their minor importance. The example that comes to mind is that of some “choke species” under the landing obligation (see Chapter 6), that could stop a fishery with plentiful quota thus producing disproportionate effects on the overall delivery of policy objectives. The precautionary principle The precautionary principle, enshrined in Article 191 TFEU allows the EU to take precautionary measures in cases of significant human or environmental risks even if the scientific basis available is uncertain. This principle is of high relevance for the CFP, because the nature of the scientific advice for fisheries management is, by its own nature, highly uncertain. The CFP has long suffered from what has been called a “reverse precautionary principle”: many measures were not adopted because the scientific evidence was not certain enough (Penas Lado 2016). It is important to bear in mind that the CFP is a policy that concerns highly variable natural resources for which the scientific evidence is and will always be uncertain: the CFP must work on the basis of uncertain science, and for this reason the precautionary principle should always inspire decision-making. Otherwise there is a clear risk of decisions not being taken. This clearly translates into the principle of basing decisions on the best scientific advice available.

Policy objectives in other countries It is interesting to compare the objectives of fisheries policy of the EU with those of certain

The objectives of the CFP countries around the world. While the notion of sustainability is a fundamental element of all legislation, it is also true that this notion is always accompanied by references to the socio-economic benefits related to the full exploitation of the resources available. Let’s look at some examples.

The United States The Magnuson-Stevens Act (MSA) was first adopted in 1976, just in advance of the declaration of a 200-mi exclusive economic zones (EEZ) in order to eliminate foreign fishing and develop a sustainable US fishing industry. Re-authorized twice (1996 and 2006) it constitutes the basis for the entire US fishery management system. By the time these pages are written, a third re-authorization is under way.2 The broad goal of sustainability is implemented through the 10 national standards of the MSA which provide direction for achieving specific goals to: 1 Achieve optimum yield and prevent overfishing. 2 Require the use of the best available scientific information. 3 Manage stocks as a unit. 4 Ensure that allocations are fair and equitable, promote conservation, and prevent excessive shares. 5 Consider efficiency in utilization; not have economic allocation as sole purpose. 6 Allow for variations and contingencies. 7 Minimize costs, avoid duplication. 8 Consider fishing communities to provide for their sustained participation and to minimize adverse economic impacts. 9 Minimize by-catch, and by-catch mortality. 10 Promote safety of human life at sea. It should thus be noted that the policy has multiple objectives, not only biological but also social. It is also true that the way these objectives are defined does not establish a hierarchy among them, which means that, like in the CFP, the management should seek a reasonable balance among them.

2 https://naturalresources.house.gov/

magnusonstevens/

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These standards are further detailed through guidelines. These provide a way to interpret the standards, but in a very flexible way: these guidelines constitute a basis on which the proposals from the stakeholder bodies, the Regional Fishery Management Councils, are evaluated. At the same time, these guidelines are updated from time to time to incorporate the on-going experience and lessons learnt from implementation and changes in policy and priority. This flexibility contrasts with the new CFP’s rigidity in some of its objectives. While very detailed and legally-binding provisions are useful in certain contexts, excess rigidity can prove poorly adapted to changing circumstances, varied situations and emerging evidence on implementation. The overall balance between rigidity and flexibility is a crucial question to ensure the success of a policy. The MSA includes, in its Section 2 on “Findings, purposes, and policy”: to encourage the development by the United States fishing industry of fisheries which are currently underutilized or not utilized by United States fishermen, including bottom fish off Alaska, and to that end, to ensure that optimum yield determinations promote such development in a non-wasteful manner.

The emphasis on developing the industry to fully utilize the resources available is noteworthy. As we will see below, the consequences of a policy based on catch limitations on individual stocks, combined with a discard policy, contribute to a considerable extent to significant under-exploitation of a number of US stocks. However, the policy in general is considered a success because it reduces overfishing. This is an apparent contradiction, which shows that even if the legal basis established long ago indicates certain principles related to industry development and social and economic use of the resources, this has not prevented the evolution of the policy toward a de facto conservation-driven implementation. In terms of level of ambition, the US policy in 1996 required the recovery of fish stocks

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within 10 years with certain exceptions, while the CFP, when it established its MSY objective, considered a shorter period of six years, and no exceptions. The US experience shows a positive relationship between the implementation of rebuilding plans and the recovery of biomass for 44 stocks (Oremus et al. 2014). However, as we will see below, this positive trend in biomass was not necessarily accompanied by higher yields. It is also true that some of these stocks “recovered” as a result of updated and improved information rather than changes required in rebuilding plans. On-going changes At the time of writing, there is an on-going re-authorization of the MSA. Interestingly, this includes the challenge to balance conservation and utilization of fish populations. In effect, Bill H.R. 200, adopted by the US Congress on July 11 2018, is named “Strengthening Fishing Communities and Increasing Flexibility in Fisheries Management Act.”3 Among other proposals, the bill proposes the following changes: • When specifying a time period for rebuilding stocks, H.R. 200 would amend the current section from “as short as possible” to “as short as practicable.” H.R. 200 would replace the 10-year rebuilding requirement with a time frame that “may not exceed the time the stock would be rebuilt without fishing occurring plus one mean generation.” • Bill H.R. 200 would add exceptions to stock rebuilding requirements such as: ✓ the cause of stock depletion is outside the jurisdiction of the Council or the rebuilding program cannot be effective only by limiting fishing activities; ✓ one or more components of a mixed-stock fishery is depleted but cannot be rebuilt within the specified time without significant economic harm to the fishery or without causing another component to approach a depleted status; ✓ management activities by another country under informal trans-boundary 3 https://fas.org/sgp/crs/misc/IF10267.pdf/

agreements hinder conservation and management efforts by US fishermen; and ✓ the stock is affected by unusual events that make rebuilding within the specified time improbable without significant economic harm to fishing communities. • The bill also would replace the term overfished with depleted and would define depleted as a decline in stock biomass, regardless of its cause. The above points are of extraordinary interest, and show that the US policy is trying to learn from the experience, while trying to reduce the burden to the industry. The flexibility in the recovery time of depleted stocks, the introduction of elements of third country influence in management and the increased attention to mixed-fisheries aspects are a clear indication that a policy focused so prominently on eliminating overfishing in all individual stocks may produce undesirable effects that now must be corrected. A very important lesson for the CFP.

Australia The Fisheries Management Act of 1991 also sets out our responsibilities in relation to the pursuit of ecologically sustainable development. This objective is a requirement to manage the longterm sustainability of fisheries resources for the benefit of all users and interest groups both now and in the future. The objectives, as enunciated in Article 3 of the Act4 are as follows: The following objectives must be pursued by the Minister in the administration of this Act and by the Australian Fisheries Management Authority (AFMA) in the performance of its functions: a implementing efficient and cost-effective fisheries management on behalf of the Commonwealth; and b ensuring that the exploitation of fisheries resources and the carrying on of any related activities are conducted in a manner consistent with the principles of ecologically sustainable development (which include the exercise of the precautionary principle), in particular the need to have regard to the impact of fishing activities 4 www.legislation.gov.au/Details/C2017C00363/

The objectives of the CFP on non-target species and the long-term sustainability of the marine environment; and c maximizing the net economic returns to the Australian community from the management of Australian fisheries; d ensuring accountability to the fishing industry and to the Australian community in AFMA’s management of fisheries resources; and e achieving government targets in relation to the recovery of the costs of AFMA. In addition to the objectives mentioned in subsection (1), or in Section 78 of this Act, the Minister, AFMA, and Joint Authorities are to have regard to the objectives of: a ensuring, through proper conservation and management measures, that the living resources of the Australian Fishing Zone (AFZ) are not endangered by over-exploitation; and b achieving the optimum utilization of the living resources of the AFZ.

Once again, we see a multi-purpose policy where the biological requirements are combined with the notion of “cost effectiveness,” high economic return and full utilization of the resources.

New Zealand The fisheries policy of New Zealand is often cited as a success story in terms of the ecological and economic sustainability it has achieved. But what is the objective of this policy? In effect, according to the 1996 Fisheries Act, the purpose of the fisheries policy is: to provide for the utilization of fisheries resources while ensuring sustainability.

The term “utilization” meaning: conserving, using, enhancing, and developing fisheries resources to enable people to provide for their social, economic, and cultural well-being.

The policy objective is clearly one that puts emphasis not only on sustainability, but just as much on utilization and social benefit. Interestingly, like in the US, these objectives are made more precise through standards. In respect of harvest strategy these standards are three (Anon. 2008): 1 A specified target about which a fishery or stock should fluctuate;

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2 A soft limit that triggers a requirement for a formal, time-constrained rebuilding plan; and 3 A hard limit below which fisheries should be considered for closure. These standards have certain characteristics that made them extremely interesting as an example: • They consider a target not a limit as the basis for management, and recognize the natural fluctuation of fish stocks, so the system is not based on a fixed point but one around which there is room for fluctuation. • A limit to trigger special action, which is set at 0.5 Bmsy and a hard limit to establish a fishery closure. But there is no requirement for stocks to be all “above Bmsy .” New Zealand has, reputedly, one of the best fisheries management systems in the world, despite the flexibility of its objectives in the law. Its example shows that making the basic legal texts or the standards very ambitious and demanding is not necessarily a condition for policy success.

Norway In Norway, another example frequently cited as an example for the CFP, the objective of the fisheries policy is:5 The Fisheries policy shall contribute to establish a sound basis for an economically viable development of the fisheries industry. A sustainable management of the living marine resources is pre-conditional. Through market orientation and increased value adding, the fisheries sector shall contribute to good employment and living opportunities in the coastal communities.

Again, beyond the very general notion of “sustainability” as a pre-condition, socioeconomic considerations are at the core of the declared objectives of the policy. Rigid vs. flexible objectives One important lesson that can be drawn from the above comparative analysis is that the most successful fisheries policies in the world do 5 www.imr.no/filarkiv/2010/06/norwegian_ fisheries_and_aquaculture_fkd.pdf/nb-no/

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not necessarily have very ambitious and rigid objectives in law. These best examples show how, even with built-in flexibility in the legal text, it is serious implementation that can lead to success, rather than very rigid, ambitious objectives on paper that may be unrealistic or very difficult to implement.

The case for full exploitation of fishery resources Preventing overfishing or fully exploiting? It is obvious that keeping stocks at unsustainable levels, and even at levels that will not produce MSY is not compatible with the objectives of the CFP and does not contribute to achieve the objectives of Article 39 TFEU. As fish stocks have traditionally been markedly below sustainable levels it is logical that the CFP, for many years, has focused on ensuring such sustainability. Not surprisingly, the fish stock management policy has been traditionally called “conservation” policy, a term that indicates the philosophy behind it and is arguably responsible for its bad image among EU fishermen. This author has named his own account of the development of the CFP as “the quest for sustainability” (Penas Lado 2016). This quest is by no means finished and, despite positive trends in recent years, self-indulgence is absolutely to be avoided. However, as the status of stocks in Europe gradually reach more sustainable levels (in the Atlantic and Baltic), and as the CFP clearly establishes the MSY objective by 2020, the issue will gradually be raised of the possible under-exploitation of the resources, either as a result of the management system or because of market failures. Indeed, this is the case in the US, as we will see below. This opens a new debate: if Article 39 TFEU undoubtedly requires sustainable fish stocks, it can also be argued that this article also requires full and complete exploitation of the resources available sustainably. And there are at least three reasons why the exploitation of the EU’s sustainable fishery resources may not be complete even if sustainability is achieved:

• the effects of the policy in mixed fisheries; • inefficiencies in the sharing of fishing rights; and • inefficient markets. These are explained in subsequent pages. It is important to understand that low, inefficient exploitation levels of available – sustainable – resources may hinder the achievement of some of the objectives of Article 39 TFEU.

Is under-exploitation positive? As we will see below, certain combination of policy provisions, particularly when applied to mixed fisheries, can lead to significant under-exploitation of stocks that could be exploited sustainably at higher harvest levels. In the context of a policy where the only operational targets established are biological, this under-exploitation is often not seen as a problem. But, is it? If the management of mixed fisheries leads to under-exploitation of certain stocks, then it is true that this can have certain positive consequences: • Creating a “safety net” for the stocks concerned that would ensure they are farther away from possible over-exploitation. In other words, under-exploitation could be seen as the practical establishment of a lower risk of over-exploitation of fishery resources. • Reducing the overall pressure on the marine environment, with positive consequences for the ecosystem. For the above reasons, a policy leading to under-exploitation of sustainable levels of fishing is generally seen, by environmentalists, as a positive development. In contrast, the under-exploitation can certainly be seen as a problem in economic and social terms, in that it represents significant loss of sustainable revenue and negative effects on employment. However, if we look into this question from a wider perspective, the negative effects of under-exploitation of resources go much beyond that: • The objectives of Article 39 TFEU would be more difficult to achieve: the abundant, steady supply of fish would not be assured; including consequences on European consumers.

The objectives of the CFP • The dependence of Europe on imported seafood would increase. As we will see below, the under-exploitation may increase pressure on resources in third countries where management is weak. • It would put additional pressure on land ecosystems. The unexploited fish would need to be replaced by alternative animal protein. If this is chicken, for example, what would be the implication in terms of additional production of maize or soya to feed that poultry? How much forest would need to be chopped down to provide for the extra farmland? And if this is farmed fish, the effects of this sector on the conservation of wild forage fish are also very controversial. • Relative stability (the cornerstone of the CFP) may not be, de facto, fully respected, in particular if the under-exploitation would affect some Member States more than others. • To sum up: the objectives of Article 39 TFEU may not be fully achieved. Ultimately, the question is: what is the best way of implementing the objectives of Article 39 TFEU? Again, over-exploitation of resources cannot guarantee any of these objectives, certainly not in the long term. But what about under-exploitation? Is the under-exploitation of fishery resources conducive to the objectives of Article 39? I will try to demonstrate that the answer is no; that the best way to achieve these objectives is to ensure sustainable but full exploitation of these resources. We will see below that certain combination of circumstances, in particular the achievement of MSY objectives for individual stocks, combined with the landing obligation and all under relative stability could lead mixed fisheries to a situation of considerable partial under-exploitation. This risk could be avoided by providing for a wider interpretation of the mandate of Article 2.2 of Regulation 1380/2013, which establishes specific objectives for all regulated stocks individually. The idea that will be developed in these pages is to interpret this objective as one that delivers a beneficial overall outcome along the lines of what the economists call a “central tendency” that holds for the most part but not always.

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The risk of under-exploitation, in any case, must be compounded with the possibility of a backlash in the tendency toward better management of resources in recent years. The danger to avoid is to use the full exploitation argument as an excuse to undermine all efforts to ensure sustainability. This idea should therefore be understood as an attempt to strike the right balance, not to jettison all the efforts made in recent years to advance toward sustainability.

Is under-exploitation a realistic scenario in the CFP? The obvious problem with the over-exploitation of so many fishery resources around the world (FAO 2016) may give the impression that under-exploitation is not an issue, or one that is far less important than that of over-exploitation. The long history of overexploitation of European fishery resources and the slow progress accomplished may give the impression that this question is not worthy of attention. Some may even argue that it would be counter-productive to raise it, when the full sustainability of resources in Europe is still not achieved. This is true, and nothing in this book should be understood as a reason to undermine the continuous struggle to phase out overfishing from European fisheries. However, as that objective is gradually approached, and as the new combination of CFP measures (individual [Total Allowable Catch] TAC + landing obligation + relative stability) kick in fully in 2019, the possible under-exploitation of EU fishery resources becomes a potential problem. It is in this light that the question should be examined.

The example of the US The experience of other countries shows that the theoretically “successful” fisheries management can lead to a substantial underexploitation of the resources. The US rightly claims that, because of fisheries management, overfishing has largely been eliminated in US waters (Anon. 2014). The Magnuson-Stevens Act has led to a high degree of sustainability of the main fishery

34

Chapter 2

resources . . . and to a considerable underexploitation of these resources. The US situation can be roughly characterized by a considerable reduction of the fishing pressure, but without an increase in yields as a result. In other words, the success of the US system consists of fishery resources being more abundant, but exploited less heavily. This conservative management approach takes into account as well the difficulty of estimating yield and it provides a de facto “insurance” policy or hedge that avoids inadvertent over-exploitation. In the case of the New England groundfish fishery, under the 2005–2009 management plan the annual catch limits increased substantially, while the total landing remained roughly constant. Between 2005 and 2011, the underfishing of the sustainable catch limits was estimated at more than 550 000 tonnes, worth US$ 1.8 billion. In 2010, the catch of all managed groundfish species was under the prescribed catch limits; in fact, only 37% of the aggregate catch limit was caught (Rothschild et al. 2014). In the west coast of the US, the total consumption of TACs has been lower than 40% and the trend has been downwards for years (Ray Hilborn, personal communication). If we look at other examples in North America, we see a similar trend: in the groundfish fishery of western Canada, the rate of consumption of quotas varies around 50% only (Bruce Turris, personal communication). The above results must be interpreted with care. In particular, the low percentages are not ascribed to whether they are due to choke species effects, market considerations, or other factors. The figures show a level of underexploitation of available fishing opportunities that raises many questions as to whether the US system is effectively delivering all its declared economic objectives. We will see below how that table compares with the percentages of quota consumption in Europe under the CFP.

Under-exploitation in the EU? In the CFP, there is also a certain level of under-exploitation of the resources, although

Table 2.1 Data on the level of consumption of EU

TACs in recent years according to the official catch-reporting system. 2014

2015

2016

2017

70.43%

77.81%

75.66%

73.85%

Source: Data elaborated by the author.

the level is of a completely different dimension than that of the US. As shown in Table 2.1, the overall level of quota consumption in the EU is considerably higher than in the US, with quota consumption levels between 70 and 80%, and an apparent downward trend since 2015, the first year in which the landing obligation kicked in. A more detailed analysis by species (see Figure 2.1) shows a very wide variation in the percentage of quota consumption for different species and different geographical areas, so there are indeed certain levels of under-utilization of quotas under the EU. And this is all before the full implementation of the discard ban and the full impact of choke species. Why? Current under-exploitation of certain resources can be the result of several factors: • Theoretically, the effects of the management system in mixed fisheries, where the combination of individual fish stock objectives and the ban on discarding can lead to fisheries being stopped before all quotas are consumed (the “choke species” effect). However, given the low level of implementation of the landing obligation during these years, it is unlikely that choke species have been responsible for this decrease. • The “paper fish” effect, that is, in some cases the quotas established may be higher than the real abundance of the fish. Although this is a phenomenon that has been considerably reduced over time, there can still be cases where quotas are set artificially high. • In a number of cases certain quotas may not be fished because of market inefficiencies. These can be of very different nature: (a) In some cases, the species concerned has just a low market value so that its full exploitation is not economical;

The objectives of the CFP

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100,00 90,00 80,00 70,00 60,00 50,00 40,00 30,00 20,00 10,00 W h An iting gl er fis h Sp ra t So le Pl ai c M ac e ke re l M eg H or rim se m ac k. H ak H e er r H ing ad do ck Bl C od ue w hi tin g

0,00

Figure 2.1 Consumption of TACs by some key species in EU waters. Average for years 2014–2016. Source: Data elaborated by the author.

(b) In some other cases, the quotas available may not be fished because they are allocated to Member States that have no economic interest while other Member States may be more than willing to catch them. This is an undesirable effect of the rigidity of relative stability that will be dealt with in subsequent chapters. While the effect of choke species is still to be evaluated, since the combination of individual TACs under the landing obligation is still in the phase-in period, there is no doubt about the effects of the market inefficiencies. These percentages are variable geographically. For 2015 the overall consumption of TACs was 77.8%, but percentages were higher in certain areas such as the Baltic or North East Atlantic Fishery Commission (NEAFC) but significantly lower in the main area, the western waters, that accounts for 3/4 of all TACs. As indicated above, there can be several reasons to explain that. What is remarkable is that this question has actually never been fully investigated institutionally. In other words, why is this not seen as a problem, or even as a question to ask? Perhaps it’s about time that this question be seriously investigated. TAC consumption is also variable for different stocks, as shown in Figure 2.1: while sole, sprat,

or herring have consumption levels over 80% other species such as plaice have barely a utilization over 50% and a very valuable stock such as hake has less than 80% consumption. If secondary species are considered, utilization levels are lower, for example tusk TACs are fished at around only 30%. These results, however, must be considered carefully. In particular, they correspond to official catches, that is, they do not take into account unaccounted catches, or “black landings.” If such unaccounted landings are taken into account (whatever their real magnitude may be), the figure of under-exploitation would be smaller, though it would probably still be significant. On the other hand, however, the table has been made not from the original TACs but from the “adjusted TACs” that is, after the quota swaps among Member States (around 2000 per year, involving around 13–14% of total catch possibilities). This implies that even after the adjustments through quota swaps, the level of quota consumption is far from complete. The trend in Table 2.1 is not straightforward to interpret. Although the reduction coincides with the gradual implementation of the landing obligation, it would be premature to explain the reduction on account of choke species

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Chapter 2

effects (see Chapter 6). There may be some cause/effect relationship with first sale fish prizes which, according to European Market Observatory for Fisheries and Aquaculture Products (EUMOFA),6 have been declining in certain years for certain groups of species: • Prices of groundfish increased until 2011, but have declined since, from an average of over €2/Kg in 2011 to less than €1.5/Kg in 2015. • Prices of small pelagic fish show an identical trend, with a reduction from €0.75/Kg in 2011 to less than €0.60/Kg in 2015. • On the contrary, flatfish prices have remained stable, at around €4.5/Kg from 2011 to 2015. The objective of the above data is not to play down the threat of overfishing. In fact, the figures correspond to landings, not total catches. If discards are added to these figures, the effects on the resources are obviously significantly higher. Last but not least, the referred TACs are, in a number of cases, higher than those necessary to ensure sustainability. The real objective of the above table is to demonstrate that in the CFP there is also a problem of under-exploitation of a number of TACs, and that the problem seems to be getting worse, even if there is little evidence of choke species effect so far. If this was evident even before full implementation of the landing obligation, what can we expect as the policy becomes fully effective?

Under-exploitation vs. over-exploitation It is also true that the under-exploitation of certain quotas may also be considered as a minor problem if we compare it with the over-exploitation of many other quotas due to poor enforcement of catch limits, which is still very significant in many European fisheries, as regularly reported by the European Fishery Control Agency (EFCA). Indeed, the main problem of the CFP for many years has been that of quota over-exploitation. In that context, talking about under-exploitation may sound like comparing a real problem with a 6 www.eumofa.eu/

theoretical one, or like establishing the wrong priorities. There is no doubt that the over-exploitation of quotas in the CFP has been and continues to be a serious concern. But it is a well-known concern that has been subject to many initiatives in terms of recognizing the problem (EU 2007), taking offenders to the Court of Justice, reshuffling the control legislation (EU 2009b) or improving compliance by Member States through the coordinated approach of EFCA. In contrast, the question of under-exploitation of certain stocks in European waters has not been subject to any initiative, or indeed been considered an issue at all. Recent studies suggest that there is still a potential for an increase in global fish production, to be achieved both by improving management of currently over-exploited fisheries but also by expanding catches in certain well-managed stocks (Costello et al. 2016). In turn, Hilborn and Costello (2018) after a complete analysis of world fisheries through meta-analysis, concluded that: There is considerable room for increased profit in most of these fisheries from better management. Increased yield will come from rebuilding overexploited stocks, reducing fishing mortality on stocks that are still fished at high rates, and surprisingly from fishing some stocks harder. Indeed, in Europe and North America the primary potential for increased yield comes from fully exploiting stocks that are now lightly exploited.

As we saw above, many stocks in EU waters are not fully exploited. It is noteworthy that, unlike EU waters, in third countries, where EU fleets fish under bilateral agreements, there have been initiatives designed to ensuring that the fishing opportunities paid with European tax-payers’ money, are fully used. In EU waters, on the contrary, the fact that fishing opportunities are not paid by tax-payers money has led to a tradition where such underexploitation, whenever it happens, is not seen as a problem. However, if we look again at the terms of Article 39 TFEU, this will have to be addressed one day.

The objectives of the CFP

The consequences of under-exploitation As we saw above, there is an obvious consequence of the under-exploitation of fishery resources: it does not contribute to achieve the objectives of Article 39 TFEU. However, for many societal interests this may not be undesirable: under-exploiting fishery stocks has positive ecological effects in reducing pressure on the marine ecosystems. But is this really so simple? It is simple if we look at the European marine environment alone. It is not simple at all if we look at the globe as a whole and particularly at the world’s food-producing systems. The reason is simple: all the animal protein that does not come from sustainable exploitation of European fisheries will have to be replaced by animal protein coming from other fisheries in the world (some of them poorly managed), or from the already over-stretched land-based agriculture and livestock systems.

The effects on other marine areas The EU fish market is not self-sufficient: according to Eurostat, in 2014 the EU exported 2 145 169 t of fish (worth EUR 4.3 billion) but imported 5 947 708 t (worth EUR 21 billion), so the EU market runs a deficit of nearly 4 million tons of fish a year. While much of the imported production comes from well-managed capture fisheries, from countries with sustainable fisheries policies such as Norway or Iceland, a significant part of the EU’s seafood imports also corresponds to catches from countries where such production is not always sustainable, or where it takes place under socially-unsound conditions. In other cases, seafood imports come from countries known to have produced such seafood at the cost of considerable degradation of their coastal habitats. The effect of the possible under-exploitation of EU resources may also be looked at from this viewpoint: what are the ecological effects in the exporting countries of any increase in production to replace the resources that Europe itself will not be able to exploit sustainably?

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The three main world’s markets for fish (the EU, Japan, and the US) consume 30% of the world’s fish supply, although they represent only 12% of the population (Swartz et al. 2010). The three importing blocs have very clear spheres of influence. It is obvious then that if these three importers do not fully use their sustainable resources, this will result in considerable pressure on the exporting countries, many of which are developing countries with little means to ensure good management. This means that under-exploitation of resources protects the marine environment in the importing countries, but aggravates it in the exporting ones; a new form of environmental neo-colonialism, that certain authors call “leakage” (Helvey et al. 2017). Indeed, importing countries should have an interest to preserve the exporting countries’ ecosystems, on which they also depend. An adequate level of exploitation of the importing countries’ own resources may also contribute to that. It is also pertinent to ask the question of how much fish originated in illegal, unreported, and unregulated (IUU) fisheries is being imported to fill the gap of Europe’s inability to extract the maximum possible sustainable yield from its marine resources? The above points only reflect one basic fact: in the world everything is interconnected, and what Europe (the world’s first consumer of seafood) does with its own fish resources will have a bearing in the rest of the world; it is in this light that the debate on over-exploitation/ under-exploitation must be looked at.

The effects on land: is livestock production better than fishing? Land ecosystems are already under tremendous pressure from farming, urbanization, and many other uses (Lambin and Meyfroidt 2011). Many initiatives are taking place to find solutions to increase food production while, at the same time, reducing deforestation. Some of these initiatives involve proposals to reduce the average dependence of human populations on animal protein. Among all land uses, it is important to underline in the present context the use

38

Chapter 2

of land for the production of livestock, which competes with seafood as the main source of animal protein for human consumption. FAO produced in 2006 a complete review of the effects of livestock production (FAO 2006): • Worldwide, the production of livestock accounts for 70% of total agricultural land and 30% of the land surface of the planet. The expansion of livestock production is a key factor in deforestation, in particular in Latin America, where 70% of the former surface of the Amazon is occupied by pastures and feed crops. • The livestock sector is responsible for 18% of anthropogenic CO2 emissions. The largest share of this comes from land use change due to expansion of pastures and arable land for feed crops. The sector also emits 37% of anthropogenic methane (with 23 times the global warming potential of CO2 ). • The sector also represents a major source of biodiversity loss, due to massive deforestation. Last but not least, the sector represents 8% of global human water use, mostly for the irrigation of feed crops. This was the picture in 2006. All the above effects must have been aggravated in recent years. Even in the most efficient transformer of vegetable crops into animal protein among terrestrial livestock (poultry) it is estimated that an average of 3 800 m3 of water are necessary to produce 1 tonne of chicken. FAO summarized that: Over the past decades, the poultry sector’s growth and trends toward intensification and concentration have given rise to a number of environmental concerns. A direct consequence of these structural changes (industrialization, geographical concentration and intensification) in poultry production is that far more waste than can be managed by land disposal is produced, resulting in environmental problems.

Other important works have estimated the effects on livestock production and have made projections of estimated surplus and deficits (Steinfeld et al. 2006). But perhaps the most meaningful information about the

effects of livestock production is the estimation of its contribution to the global production of greenhouse gases: according to the World Watch organization, livestock production is responsible for 51% of the total production of greenhouse gases, more than any other sector of the human economy. In addition, livestock production is the single largest driver of habitat loss (Machovina et al. 2015) due to the cutting down of forest land to produce feed crops. As we will see in Chapter 13, fish protein is healthy; its consumption is highly recommended by doctors and nutritionists, and the world’s appetite for fish is on the rise. The fish not exploited sustainably will have to be replaced by other animal proteins. Even if such proteins are mainly from poultry (with much lower impact than swine or dairy livestock) its production will only contribute to increase the ecological impact on land, notably due to the necessary increase in feed crops, with all the effects on global warming, fresh water and pesticide use and loss of biodiversity that we have seen above. It is really in this light, by considering the world ecosystem as a whole, that we must examine the problem of the potential underutilization of fishery resources: as an extra pressure on the world’s already overstretched land ecosystems.

The public debate The above data clearly shows that in terms of influence in the world’s ecosystems and climate balance, livestock is far more important, and has a much greater effect than fisheries. Yet, while there is abundant public debate about the negative effects of overfishing, little is said about the negative effects of excessive livestock production. Why? One of the causes may be the different degree of interest shown by environmental NGOs. In Europe, the most dynamic NGO in recent years has been the Pew Charitable Trust, which has launched impressive campaigns and which has been in recent years extremely active in the fight against overfishing. Yet, the website

The objectives of the CFP of this important NGO7 includes no mention of the problem of livestock in the world’s environment. This author has no evidence to explain this, but this fact casts a certain doubt as to the legitimacy of the strong focus to fight against the interests of the fishing industry, whose negative effects on the world’s ecosystem clearly falls behind those of other human activities, and which produces a high quality, relatively low impact food for humankind. Fisheries management is at present subject to a high level of public scrutiny, and this must be welcomed as a good development, since the issues related to fisheries management are of interest for society at large. But such societal scrutiny should also take account the larger impact on the world’s ecosystem of the other human, food-producing activities, and how they compare with the fishing activity itself in terms of benefits and impacts in the world’s ecosystems.

Are the fishery objectives of the new CFP too rigid? All the above considerations lead to a substantial question: the objectives for the management of stocks under the new CFP, are they too rigid? Would more flexibility be necessary to ensure a better balance between the necessary avoidance of over-exploitation and the risk of underexploitation? The answer is not straightforward and can be a function of policy development. Typically, fishery management systems have been put into place to react to serious situations of over-exploitation of fishery resources. In those cases, the introduction of specific, more prescriptive objectives is very useful because they replace more flexible systems that were prone to abuse, leading to over-fishing. However, as these more prescriptive systems tend to be based on biological parameters only, and as 7 www.pewtrusts.org/en/

39

the main situation of over-fishing are phased out, there is a need to examine the trade-offs between precaution and conservation and the social and economic benefits that the fisheries can provide (Sissenwine et al. 2014). Another important consideration is whether the prescriptive objectives established for individual stocks are flexible enough to deal with technical and biological interactions in multispecies fisheries and ecosystems or in data-poor situations where scientific certainty cannot be quantified. This clearly calls for management systems to evolve in response to changes in fisheries, in the environment and in society at large (Sissenwine et al. 2014). Certainly, providing greater flexibility in management objectives may lead again to abuse leading to over-exploitation. However, overly prescriptive rules may lead to large foregone yields in mixed fisheries (see next chapter). Where to strike the right balance is one of the fundamental challenges for the implementation of the CFP. The failure of the CFP to ensure sustainable fisheries over many years certainly supports the idea of a policy with very rigid and specific policy objectives with relatively little room for interpretation, as the only way to create “selfdiscipline” to go in the right direction (Penas Lado 2016, chapter 4). However, if we look at the future of the CFP, and especially if we look at the new policy adopted in 2013, which combines increased rigidity with the combination of measures that can be difficult to conciliate in mixed fisheries, one can question whether there is a need to provide certain internal flexibility in the policy while at the same time keeping certain basic elements to ensure that the main objective of ensuring sustainability be preserved.

The lessons from the US system The US system provides an excellent example in terms of the balance between specificity of policy objectives and the flexibility of the means to achieve them. The US system has a number of advantages to adapt policy outputs through flexible combinations of solutions, and

40

Chapter 2

above all, to keep up with the evolution of the industry and the conditions under which it operates. Many of these elements of flexibility are certainly a source of inspiration for the CFP. However, the US system has also certain rigidities that are preventing the achievement of the overall balance above mentioned. In particular, the US system is failing to ensure that the exploitation of its resources is not only sustainable, but also complete. The most important element of flexibility in the US, as compared with the EU, is that the guidance on how to achieve the overall objectives of the policy are specified by the 10 national standards, that can be implemented under a considerable degree of flexibility, including the consideration of different levels of risk. The EU does not have a similar instrument, and the way in which the basic tenets of the policy are specified in more specific rules always takes the form of legally-binding regulations, thus removing room for maneuver when implementing the policy. The tendency in the CFP has been to build ever more detailed regulations to pin down all players to a – theoretical – strict delivery of policy goals, showing a remarkable lack of trust among the players concerned. The US experience in providing for flexibility would not be easy to replicate in the EU. The main reason lies probably in the multinational nature of the CFP that adds a fundamental element of distrust among key players. In the US, with all participants being from the same country, there is a relatively high level of trust among the actors, whose legitimacy is not fundamentally questioned by anyone, although this is very variable and has exceptions. In the EU, on the contrary, the traditional mistrust among fleets from different Member States places an extra pressure on the so-called “level playing field” that ends up requiring hard law solutions to problems that, in the US, are resolved by providing for flexibility for different fisheries, in different regions, taking different solutions and even different levels of risk. This author has repeatedly advocated the need to establish trust as the basis for a more

flexible, and arguably simpler policy. Only with more trust among Member States, industries and EU institutions could the CFP establish simpler rules, allowing for different solutions in different areas, even if they are not perfectly equivalent. The idea that any regional difference may constitute a “discrimination” is still so deeply rooted in the EU system, and this makes the kind of flexibility of the US system very difficult to apply. Only if the CFP can develop that sense of trust will the policy be able to evolve from a detailed, prescriptive approach, where all the rules are established as hard law to one based on recommendations with an ample room for maneuver for implementation in different places and circumstances.

Socio-economic objectives vs. biological delivery: should the policy establish specific socio-economic targets? As we saw above, fishery legislations in general establish objectives that are economic and social as well as biological. The scientific literature includes the development of the notion of “Maximum Social Yield” which captures the trade-offs between social, economic, and ecological sustainability (Charles 1988). Yet, the general tendency is also that the operational parameters used for stock management tend to be primarily, if not exclusively, biological. Why? The reason for this has been very wellexplained by some authors, for the specific case of Australia. In this country, the regional authorities responsible have chosen a role limited to ensuring biological sustainability, with the economic management being left to the commercial industry (Emery et al. 2017). The reasons for this are generally applicable to many countries, and certainly to the EU as well: • The industry tends to be resistant to change, even sometimes to changes that would increase their economic benefit, since change requires modification of existing business structures. • There is lack of information on the reasons for the proposed regulations, creating confusion as to the real motives for the proposed change.

The objectives of the CFP • The industry is heterogeneous, and any measure is viewed differently by diverse business structures. • That heterogeneity also results in difficulties for the industry to reach consensus or wide agreement on management changes aligned with overarching legislation objectives. In the specific case of the EU, we must add the very different culture of management among Member States, some of which consider the fishing industry as any other economic sector that must stand on their own economically, while others see it as a strategic sector where State policies should pursue specific economic and social objectives. Thus, it is impossible to agree on a common definition of the “maximum social yield” that is valid in all Member States. For these reasons, it seems inevitable that the CFP, even though Article 39 TFEU has a number of socio-economic objectives, will always have trouble in establishing its operational objectives in specific socio-economic terms. But that also means that the operational biological objectives should facilitate and promote the achievement of the larger socio-economic objectives loosely defined in Article 39. In other words, the target of having all stocks at the biological level of maximum sustainable yield, should be construed in a way that will allow the achievement of a range of socio-economic objectives. This calls for a flexible interpretation of MSY as an area around which different socio-economic objectives can be achieved. This represents a challenge, because social objectives seem quite far from being integrated into the current fisheries management, despite a wealth of research on the topic (Rindorf et al. 2017). This is due to a lack of coupling of knowledge gained with qualitative and quantitative methods (Rockmann et al. 2015) and the lack of well-defined and broadly agreed social objectives and associated indicators (Pascoe et al. 2017). In other words, the social objectives of Article 39 TFEU have never been incorporated into the mainstream scientific advice for the CFP, until very recently. The result is that “social” considerations have traditionally been included as part of political

41

negotiations, without transparency and often mixing genuine social questions with opportunistic or partisan politics, which in turn has traditionally undermined the credibility of the “social” arguments in fisheries management under the CFP.

References Anon. (2008). Harvest Strategy Standard for New Zealand Fisheries. New Zealand Government. Ministry of Fisheries, October 2008, 25 pp. Anon (2014). Ocean Studies Board. Evaluating the Effectiveness of Fish Stock Rebuilding Plans in the United States. National Academies Press. Charles, A.T. (1988). Fishery socioeconomics: a survey. Land Economics 11: 201–211. Costello, C., Ovando, D., Clavelle, T. et al. (2016). Global fishery prospects under contrasting management regimes. Proceedings of the National Academy of Sciences of the United States of America 113 (18): 5125–5129. Emery, T.J., Gardner, C., Hartmann, K., and Cartwright, I. (2017). Beyond sustainability: is government obliged to increase economic benefit from fisheries in the face of industry resistance? Marine Policy 76: 48–54. EU (2002). Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy. Official Journal of the European Communities L 358 of 31.12.2002, p. 59. EU (2007). Court of Auditors report strengthens the case for a reform of fisheries control. IP/07/1862. Brussels, 5 December 2007. EU (2009a). European Commission. Green Paper: Reform of the Common Fisheries Policy. Com. 163 final. Brussels: European Commission (22-4-2009). EU (2009b). 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. Official Journal of the European Union L 343/1. EU (2017). Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic

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and Social Committee and the Committee of the Regions. Reinforcing integrated supervision to strengthen Capital Markets Union and financial integration in a changing environment. Brussels, 20.9.2017. COM (2017) 542 final. FAO (2006). Livestock’s Long Shadow. Environmental Issues and Options, 390. Rome: FAO. FAO (2016). The State of World Fisheries and Aquaculture. Opportunities and Challenges, 200. Rome: Food and Agriculture Organization. Halpern, B.S., Longo, C., Hardy, D. et al. (2012). An index to assess the health and benefits of the global ocean. Nature 488: 615–620. Helvey, M., Pomeroy, C., Pradham, N.C. et al. (2017). Can the United States have its fish and eat it too? Marine Policy 75: 62–67. Hilborn, R. and Costello, C. (2018). The potential for blue growth in marine fish yield, profit and abundance of fish in the ocean. Marine Policy 87: 350–355. https://doi.org/10.1016/j.marpol .2017.02.003. Lambin, E.F. and Meyfroidt, P. (2011). Global land use change, economic globalization and the looming land scarcity. Proceedings of the National Academy of Sciences of the United States of America 108 (9): 3465–3472. Longo, C., Hornborg, S., Bartolino, V. et al. (2015). Role of trophic models and indicators in current marine fisheries management. Marine Ecology Progress Series 538: 257–272. https://doi.org/10 .3354/meps11502. Machovina, B., Feeley, K.J., and Ripple, W.J. (2015). Biodiversity conservation. The key is reducing meat consumption. Science of the Total Environment 536: 419–431. Oremus, K.L., Suatoni, L., and Sewel, B. (2014). The requirement to build US fish stocks: is it working? Marine Policy 47: 71–75.

Pascoe, S.D., Plaganyi, E.E., and Dichmont, C.M. (2017). Modelling multiple management objectives in fisheries: Australian experiences. ICES Journal of Marine Sciences http://dx.doi.org/10.1093/icesjms/ fsw051. Penas Lado, E. (2016). The Common Fisheries Policy. The Quest for Sustainability, 392. Wiley-Blackwell. Rindorf, A., Dichmont, C.M., Thorsen, J.T. et al. (2017). Quo vadimus. Inclusion of ecological, economic, social and institutional considerations when setting targets and limits for multispecies fisheries. ICES Journal of Marine Sciences 74 (2): 453–463. https://doi.org/10.1093/icesjms/fsw226. Rockmann, C., van Leeuwen, J., Goldsborough, D. et al. (2015). The interaction triangle as a tool for understanding stakeholder interactions in marine ecosystem-based management. Marine Policy 52: 155–162. Rothschild, B.J., Keiley, E.F., and Jiao, Y. (2014). Failure to eliminate overfishing and attain optimum yield in the New England groundfish fishery. ICES Journal of Marine Science 71 (2): 226–233. https://doi .org/10.1093/icesjms/fst118. Salomon, M., Markus, T., and Dross, M. (2014). Masterstroke or paper tiger – the reform of the EU′ s common fisheries policy. Marine Policy 47: 76–84. Sissenwine, M.M., Mace, P., and Lassen, H.J. (2014). Preventing overfishing: evolving approaches and emerging challenges. ICES Journal of Marine Science 71 (2): 153–156. https://doi.org/10.1093/icesjms/ fst236. Steinfeld, H., Gerber, P., Wassenaar, T. et al. (2006). Livestock’s Long Shadow, 229. Rome: FAO. Swartz, W., Rashid Sumaila, U., Watson, R., and Pauly, D. (2010). Sourcing seafood for the three major markets: the EU, Japan and the USA. Marine Policy 34: 1366–1373.

CHAPTER 3

Implementing maximum sustainable yield

What is maximum sustainable yield? Maximum sustainable yield (MSY) is the basic objective of fisheries management in international law (United Nations Convention on the Law of the Sea, UNCLOS), in a number of countries around the world and, since 2013, in the Common Fisheries Policy (CFP).

Defining MSY The most common definition of MSY is that provided by the Organization for Economic Co-operation and Development (OECD):1 Maximum sustainable yield (MSY) is the largest long-term average catch or yield that can be taken from a stock or stock complex under prevailing ecological and environmental conditions.

The notion of MSY as an objective for fisheries management has been applied in a wide number of cases, including the World Summit for Sustainable Development of 2002 in Johannesburg (United Nations 2002). A number of countries and organizations have also used this concept as a fisheries management objective (Mace 2001; Worm et al. 2009). It has been argued that this notion has always addressed the biological conservation of the fish stocks, but does not consider that other possible objectives such as maximizing economic or 1 https://stats.oecd.org/glossary/detail.asp?ID=1644/

social benefit do not necessarily occur at MSY levels (Zabel et al. 2003; Anderson et al. 2015; Hilborn et al. 2015). However, the introduction of the MSY objective can also be associated with economic benefit. Guillén et al. (2016) estimated that in NE Atlantic fish stocks were to be exploited at MSY, the EU fishing sector could get an additional €4.64 billion per year in profits than they would if current exploitation rates were maintained. This forecast seems to be proving right, since the improvement of stock status observed in recent years is producing a net increase in the profitability levels of the EU fleets (EU 2018a). The concept of MSY is very old and has always been hotly debated. Though consolidated in international and EU law, it has important detractors. Some even wrote its epitaph long ago, based on the view that MSY “advocated yields too high” (Larkin 1977). MSY has also been dismissed as the wrong objective for fisheries management: a world’s renowned scientist like Sidney Holt considered MSY “the worst idea on fisheries management” based on the argument that it “both enthrones and institutionalizes greed” after recognizing his earlier support to the idea as a better objective than the existing over-exploitation of certain stocks.2 2 https://breachingtheblue.com/2011/10/03/ maximum-sustainable-yield-the-worst-idea-infisheries-management/

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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MSY in the reformed CFP Regulation 1380/2013 established, for the first time in the history of the CFP, a long-term objective for the management of fish stocks. This objective, the MSY, was considered as the best way to achieve the objectives of Article 39 Treaty on the Functioning of the European Union (TFEU). At the same time, this objective was established for the first time under a specific time frame: 2020. This represented a breakthrough for the CFP, in that it corrected one of the CFP’s most clearly identified problems: the lack of a specific objective for the management of stocks (EU 2009), leading to decision-making that for many years favored short-term political considerations rather than the long-term sustainability. The effects of this decision are, inter alia, to tie down the EU institutions to a very clear agenda to achieve such an objective within the required time frame and thus eliminate the short-termism that has plagued the policy for so many years. Before being enshrined in the basic regulation of the CFP in 2013, the notion of MSY was first introduced at a time when the policy was clearly failing to address overfishing and, in that context, moving to MSY represented a net improvement of the situation at that stage. I would be wrong to blame the notion of MSY for the earlier failure of the CFP to address over-exploitation: the major danger of assigning the notorious failure of the CFP to a wrong culprit, MSY, is to distract research efforts away from investigating the real causes that likely lay in the institutional set-up (Mesnil 2012). Indeed, policies based on MSY objectives have been very successful in reducing overfishing to very low levels in the US (Hilborn 2007). However, the inclusion of MSY as the objective of fisheries management under the CFP came at a cost: the MSY notion has many implications that are difficult to handle in a political negotiation, particularly as this was the first time EU legislators were confronted with this concept in hard law. While certain aspects of it were discussed explicitly (the implementation of MSY through biomass or fishing mortality

objectives) other questions (MSY as a limit or as an objective, MSY as point values or as a range) were not discussed at all by the EU legislators. For these reasons, it was not possible to discuss harvest strategies in relation to reference points and the explicit acceptance of particular levels or risk with reference to these points. All these questions are essential to determining how the policy works. Several strategies can be employed for implementing the notion of MSY and the effects of each strategy will differ. Thus, the basic regulation on MSY by 2020, essential though it is, does not consider all options for implementation. This necessitates a discussion on each strategy and its likely effects. This is not always happening, at least in a structured, purposeful way, and the way the basic objective of achieving MSY by 2020 is being implemented is more the result of specific regulations, notably the Baltic Sea management plan (EU 2016a) and the subsequent North Sea plan (EU 2018b) establishing a precedent and thus paving the way for future cases, rather than that of a deliberative consideration of possible pros and cons of the different options. This is the objective of this chapter.

MSY in international law The idea of MSY as a flexible concept is reflected in international law. Article 119 of UNCLOS3 requires States to: maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield, as qualified by relevant environmental and economic factors.

This “as qualified” clearly indicates that other considerations about economics and ecology should be considered, so the implementation of MSY may actually deviate from a single point Fmsy value. The EU is a signatory of UNCLOS, so the achievement of that objective in EU fisheries has been a legal obligation for the EU since UNCLOS became effective in 1994. The fact that it has 3 www.un.org/depts/los/convention_agreements/

texts/unclos/unclos_e.pdf/

Implementing maximum sustainable yield taken so much time to become enshrined in the CFP (only in 2013) is yet another demonstration of the slow pace of evolution and adaptation of the CFP itself. At the same time, the rather flexible definition of MSY in UNCLOS is important to bear in mind while considering the following pages. While certain policy players (some environmental Non-Governmental Organizations [NGOs]) advocate the notion of MSY as a strict limit that must be respected in all stocks, the above definition in international law recognizes that the notion of MSY must take into account socio-economic considerations.

MSY and the Treaty All the preceding sections can be summarized as one: is MSY the best target to achieve the objectives of Article 39 of the Treaty? And what interpretation of MSY can best achieve that? This is one, if not the most, quintessential question for the management of fish stocks under the CFP. The objectives laid down in Article 39 TFEU are varied, and under some circumstances incompatible. That means that a reasonable balance among such objectives should be achieved. No single point can maximize the delivery of all the different objectives. In fact, the Commission presented its proposal for MSY as the operational objective of the CFP as the best way to achieve the objectives of Article 39 TFEU based on that idea. This author consistently presented the notion of MSY in the CFP as: “an area within which we can strike the best balance among the different objectives of Article 39.” This implies that MSY must not be seen as a miracle point that will deliver all goals, but rather that, the goals being varied, the MSY should be a wider notion around which different balanced combinations of these goals can be considered. But then, what should be that area? As we will see in Chapter 4, this is of particular importance in the context of mixed fisheries, where the scientific literature clearly indicates that setting Fmsy as a management target without any flexibility for compromises may lead to disappointment by some of the stakeholders (Kempf et al. 2016).

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The MSY objective established in regulation 1380/2013 is subject to considerably different interpretations. For example, some environmental NGOs present the notion of MSY as a limit, implying that fishing mortality levels should be at Fmsy levels or lower, and that these F levels should be such that will ensure that biomass levels of all stocks are above Bmsy . These different interpretations are legitimate, in the light of the not-so-clear legal text. However, the point value interpretation that environmental NGOs promote has a basic flaw: it does not take account of a number of legal elements in the Treaty: • As we will see in Chapter 4, a strict interpretation of Fmsy as a limit will lead, in mixed fisheries, to very low levels of exploitation of certain healthy stocks. This would not correspond to Article 39’s objective of maximizing production. • In some cases, keeping a very strict interpretation would imply dramatic cuts in fishing opportunities, and this runs counter with Article 39’s point about “the need to effect the appropriate adjustments by degrees.” • The choke species effect (see Chapter 4) may lead to closures of important and healthy fisheries because the Fmsy of a very secondary species may be overshot. This may not correspond to the principle of proportionality established in the Treaty. In any case, the question remains controversial. MSY is not a straightforward question, and different ways of implementing the notion are possible – and legitimate. I would strongly argue that the main reference to help us interpret what we should mean by MSY, remains the Treaty, notably its Article 39. This is so obvious that is often forgotten.

Is maximum economic yield a better option? Part of the above debate has concerned the possible alternative use, as a policy objective, of the notion of maximum economic yield (MEY). As shown in Figure 3.1 the costs of fishing increase linearly with the increase in fishing effort, but fisheries yield does not. The point

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Chapter 3 Costs

Yield Revenue

to increase (agricultural) productivity

...by increasing the individual earnings of persons engaged

...optimum utilisation of the factors of production, in particular labour Benefit

Maximum Economic Yield

Maximum Sustainable Yield

Maximum Employment

Fishing effort

Figure 3.1 Different policy objectives in Article 39 TFEU around MSY.

that maximizes the difference between costs and yields (that is, the point that maximizes sustainable profits in the fishery) is generally found at lower fishing levels than MSY. This makes MEY an attractive alternative to MSY, both from the point of view of economists (maximizing economic yield) but also for environmental NGOs, since MEY corresponds to lower levels of fishing than MSY. This author has already argued why the objective of MEY did not make headway in the recent reform of the CFP: because a number of Member States do not consider maximizing economic yield as their objective for fisheries management, and they prefer more “social” objectives instead, even at the cost of lower profitability (Penas Lado 2016, chapter 16). In addition, the experience of trying to manage fisheries at MEY, for example, in Australia, show that this leads to additional complexity (Pascoe et al. 2017). So, if MSY is not necessarily a fixed point, and MEY is not necessarily a clearly better alternative, in what area should fisheries management in the CFP be situated?

An area around MSY If we consider the objective: “to increase agricultural productivity” and “to assure the availability of supplies” one should consider MSY

as the ideal target for fish stock management. However, if we consider the objective “to ensure a fair standard of living for the agricultural community,” in particular by “increasing the individual earnings of persons engaged in (agriculture)” one would tend to think that management should move to the MEY target, where higher profitability would allow better income for the producers. These two elements together would probably lead to the idea that the objectives of the CFP should be best delivered when fish stocks are managed somewhere between MEY and MSY. Indeed, this is what happens in the US system. However, in the CFP these objectives do not exist today in a vacuum: they have to be delivered in a policy characterized by: (i) objectives and catch limits for individual stocks; (ii) fixed allocation keys under relative stability; and (iii) the landing obligation. As we will see in subsequent chapters, if we try to apply the idea of management “somewhere between MEY and MSY” we must address the factors which contribute to under-exploitation, notably choke species and market failures. As a consequence, the theoretical advantage of the “between MEY and MSY” approach is offset by the fact that in the context of mixed fisheries, that approach can result in a high level of under-exploitation of many resources, which in turn means that

Implementing maximum sustainable yield the MSY would not in fact be achieved, and the increase in agricultural productivity or the availability of supply of Article 39 TFEU would not be delivered. For this reason, and if the CFP is to ensure also these objectives, in a sector where the EU is not self-sufficient and must import a large amount of the fish it consumes, it is necessary to look beyond the “MEY to MSY” approach and look for a wider concept of MSY as an area around which we can strike the best balance among the objectives of Article 39. This is shown in Figure 3.1, where different policy objectives of Article 39 TFEU are placed against the central MSY point for a given stock: if maximum biological yield is privileged, the central MSY point will provide it. If more economic efficiency is the priority, the MEY notion will be the ideal reference. If maintaining employment levels is preferred, this will be achieved at fishing mortality levels (Fsoc ) higher than MSY, even at the cost of a lower economic profitability. Since we saw in Chapter 2 that the CFP has several objectives with different socio-economic values, one cannot expect that the single MSY central point will provide all the best performance for all these objectives. Rather, the delivery of a reasonable combination of policy objectives does require that management is kept within an “area” around the central MSY point. Within this area, different options with different trade-offs are possible. This requires the implementation of the MSY objective under two basic options: • To aim higher than the “MEY to MSY” range and trying to maximize sustainable food production even at the cost of a higher risk of over-exploitation of certain individual stocks; or • To allow some flexibility in determine the relative importance of individual Total Allowable Catch (TACs)/landing obligation/relative stability so as to minimize the choke species effect. Both ideas are not mutually exclusive and will be develop in subsequent pages of this work.

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MSY as biomass or as fishing mortality? Introduction The notion of MSY can basically be expressed through two different approaches: the biomass corresponding to MSY, Bmsy , and the fishing mortality corresponding to that objective, Fmsy . In the first case, the approach consists of bringing the abundance of the stock to the level where it can produce a maximum yield on a sustainable, stable basis. In the second case, the approach is the ensure that, whatever the abundance of the stock (influenced largely by natural factors outside our control) we will exploit only that part of the stock that will allow a maximum yield on a sustainable, stable basis. Both approaches are possible and can somewhat be combined. They have pros and cons that must be examined. This question was hotly debated in the negotiation leading up to the 2013 reform. The position of the Commission (that management should be based on fishing mortality, not on biomass) finally made headway, for several reasons: • Fishing mortality reference points are more robust to scientific uncertainty than biomass reference points (Sissenwine et al. 2014). Bmsy estimates are highly variable, and it is not a good idea to have very fluctuating long-term objectives: moving targets make policy difficult to understand and implement. • While Fmsy can be reasonably established through management, Bmsy is partly the result of natural factors outside our control. • Experience shows that Bmsy can sometimes not be reached even if the fishery is closed for several years. Cod in Flemish Cap (Perez-Rodriguez et al. 2012), North Sea herring (Diockey-Collas et al. 2010), Pacific sardine off California;4 all these are examples of fisheries that collapsed and were closed for many years without biomass recovering until many years later. This shows that the Bmsy 4 https://swfsc.noaa.gov/publications/CR/1990/9067

.PDF/

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Chapter 3 of Bmsy cannot be assured in such a timeframe, if at all. Figure 3.2 illustrates this point: for the Northern Hake stock fishing mortality started to be dramatically reduced in 2005, but only in 2009 did the spawning stock biomass start to increase as a result. Other examples show how this time gap between the reduction of fishing mortality and the increase in biomass is extremely variable, and in some stocks can reach around 10 years. The implications of this discussion are clear: if the policy objectives are implemented in terms of biomass, then the management system must take account of the natural factors that can influence such biomass, and this implies the establishment of catch limits that are much more precautionary. By fixing objectives in

objectives may be unachievable even under the most restrictive management regime for a relatively long period of time. • It is not known if all estimates of Bmsy for different associated stocks can all be achievable at the same time. Sometimes Bmsy estimates may correspond to abundance levels of a certain species that may be incompatible with maximum abundances for another species. As the biomass of different species increases, part of these increases may be dissipated by ecosystem effects, • It is not possible to set a time limit to reach Bmsy . Experience shows that between the reduction of F and the increase in B there is always a time gap, roughly between 3 and 10 years. That means that if Fmsy is reached within a given time frame, the achievement F

1.2

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200 150 100 50 0 1978 1982 1986 1990 1994 1998 2002 2006 2010 2014

Figure 3.2 Evolution of fishing mortality and spawning stock biomass for Northern Hake, showing how F started

to be reduced around 2005 but biomass levels only started to increase toward 2009. Source: www.ices.dk/sites/ pub/Publication%20Reports/Advice/2017/2017/hke.27.3a46-8abd.pdf/

Implementing maximum sustainable yield terms of biomass, the influence of fishing in the overall stock abundance must be minimized to reduce the chances of other ecological factors affecting the target biomass. On the contrary, approaches based on fishing mortality simply discount from the management strategy the effects we cannot control, assuming that stock abundance can never be perfectly managed, and simply ensuring that whatever nature will provide us with, we will only exploit a sustainable part of it.

Bmsy as an “aspirational objective” The above discussion confronted two philosophies in the CFP reform negotiation, and the solution was very much a typical EU product, where legislators try to avoid winners and losers. It was accepted that fisheries under the CFP would be managed based on the achievement of Fmsy objectives by 2020, as the basic operational parameter, but that language was introduced to the effect that the objective of the CFP would have the aspiration of bringing the biomass of the stocks to levels higher than those producing MSY. The compromise was in fact clear that the policy would be based on Fmsy parameters, but that Bmsy would remain an “aspirational” objective, to be expected from a sound implementation of the former. Specific wording was established to that effect, which was believed by legislators to clearly reflect the above conclusion (EU 2013, Article 2.2): In order to reach the objective of progressively restoring and maintaining populations of fish stocks above biomass levels capable of producing maximum sustainable yield, the maximum sustainable yield exploitation rate shall be achieved by 2015 where possible and, on a progressive, incremental basis at the latest by 2020 for all stocks.

However, this phrase has created considerable confusion. Although nobody questions that the operational parameters for stock management should be the fishing mortality levels, it is argued (notably by NGOs) that the Fmsy values to be used are those that will ensure that the biomass (even without time limit) will be

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above Bmsy . It is now necessary to determine how the management based on Fmsy objectives can meet the expectation of biomass levels above MSY. The confusion has also reached the scientific world: certain authors claim that the objective of the policy has two phases: reaching Fmsy by 2020 and subsequently continue reducing fishing mortality until all stocks are above Bmsy levels (Froese et al. 2018). This interpretation has absolutely no basis. The idea of a second phase where fishing mortality levels would be reduced further than Fmsy in order to achieve biomass levels above Bmsy never crossed the mind of the EU co-legislators. Yet, the interpretation is there and has significant advocates. Clearly this requires a clarification. In this regard, it is important to underline that this aspirational objective cannot have a specific deadline. We have seen in Figure 3.2 above that there is a time gap between the reduction of fishing mortality and the increase in spawning stock biomass. This time gap is in fact very variable for different stocks. In some cases, the biomass reacts quickly to the reduction in fishing pressure: following the reduction of fishing mortality on North Sea whiting, around year 2000, the biomass reached a rapid peak in 2002. In other cases, however, this takes much longer: the cod stock in the same area took five to six years to show any sign of recovery of biomass following the general reduction of fishing mortality on gadoids around the year 2000. In certain other cases, such as west of Scotland cod, the reduction of fishing mortality (although with ups and downs) since approximately 2005 has not yet produced any significant increase in spawning stock biomass.5 In other cases, such as blue whiting, the relationship between F and B is much less clear-cut, and since 2011, for example, the biomass has been increasing despite an increase in fishing mortality in parallel, due to increasing recruitments.6 5 www.ices.dk/sites/pub/Publication%20Reports/

Advice/2017/2017/cod.27.6a.pdf/ 6 www.ices.dk/sites/pub/Publication%20Reports/ Advice/2015/2015/whb-comb.pdf/

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This simply illustrates the point that the relationship between fishing mortality and spawning stock biomass is not simple; it can take different forms for different stocks and is difficult to predict. But, crucially, while fishing mortality is a parameter that can be established through fisheries management, biomass cannot, even less so in relation with any specific time limit. Ultimately, the very notion of a policy objective that is so difficult to achieve must also be raised. Even if only aspirational, the idea that policy success means having all stock above Bmsy is misleading. Trying to project individual Bmsy parameters to all species in the ecosystem is just not straightforward. As International Council for the Exploration of the Sea (ICES) clearly states (ICES 2016): As a population of fish increases one cannot expect that growth and mortality for that species remains constant as there will be increasing competition for food and habitat within that population.

This implies that trying to pursue the objective of having all stocks above Bmsy simply ignores ecosystem considerations, and does not correspond to a credible ecosystem approach to fisheries management. Since such an objective may be unachievable even if all fisheries were closed, given the ecosystem effects mentioned above, taking it too literally can give rise to frustration and a false impression of policy failure. There is clearly a need for a very flexible interpretation of that aspirational objective, as the expectation that bringing stocks within fishing mortality targets is expected to produce overall good levels of biomass of all stocks confounded, rather than specific single-stock biomass reference points.

The interpretation by environmental NGOs Despite all the above, the debate lingers on, particularly stirred up by some environmental NGOs, who have a very different reading of the basic regulation. Granted, the text of the basic regulation as regards the above Bmsy objective can be read and interpreted in different ways, and these readings can of course be legitimate.

But it is important to underline the real meaning of some of these interpretations by some NGOs. These argue that the ultimate objective, through the management of fishing mortality, is to ensure that the management bring all stocks above Bmsy levels. For example, Pew states that: To bring the stock back to BMSY or above, in a defined timeframe, fishing pressure needs to be reduced even further below FMSY. 7

This interpretation of the above Bmsy objective clearly implies that achieving Fmsy levels is not enough. Furthermore, the scientific community agrees that it is practically impossible to have all stocks above Bmsy levels at the same time, at least in mixed fisheries (see next chapter). This implies that this interpretation of the law by NGOs would amount to setting a policy objective that is practically impossible to achieve. This was never the intention of the legislators. And even if it was, it can certainly not be expected that the policy will deliver it. Given that achieving biomass objectives does not only depend on fisheries management, but also on ecological factors outside our control, any policy that purports to “ensure” that certain biomass levels should be achieved simply does not make any sense. The legislators simply cannot force nature to behave in any particular way.

Single stock objectives in the marine ecosystems: can all stocks be “above Bmsy ” in mixed fisheries? As we have explained, the “aspirational” objective of the new CFP is that the Fmsy policy by 2020 will be such that we should expect, as a result, that biomass levels of all stocks will be “above Bmsy .” The question is: even in the best of scenarios, even if all stocks are effectively fished at their Fmsy values, is it possible, and likely, that all stocks will reach biomass values “above Bmsy ”? And, if not, does this mean that the policy is failing? 7 www.pewtrusts.org/-/media/assets/2015/03/

turning_the_tide_msy_explained.pdf/

Implementing maximum sustainable yield Already at the level of a single species, it is difficult to determine what is the real level of Bmsy . This parameter is defined, for a number of stocks, with limited consideration of multi-species effects. Bmsy estimates are generally based on single stock population dynamics, and their estimation has a low robustness due to climatic and other effects on the abundance of the fish stocks. If we add the ecological relationships among different species, then the individual Bmsy estimate becomes even more elusive. In fact, there is little evidence that if we take all the estimates of single-stock Bmsy , all these values could actually be reached at once. In some cases, perhaps the Bmsy of a predator species may prevent that of a prey species from being reached, or the Bmsy of two competing species in the same trophic level may not be possible because of competition between the two. In these circumstances, it seems prudent not to take this aspirational objective of having all stock biomass levels beyond Bmsy as a very strict measure of policy success, but simply as something to be monitored and re-evaluated, to better know how the biomass of the different stocks in the ecosystem react to the policy of keeping all exploitation rates at around Fmsy levels. One way or another, this problem is recognized in different management systems around the world. For example, in the US and New Zealand, a stock is considered “overfished” when its biomass is lower than half Bmsy , which is a recognition that having all stocks at the individual Bmsy estimate is not realistic, although it is not necessarily clear if the .5 Bmsy cut-off recognizes ecosystem/multispecies factors.

Bmsy , an elusive parameter In addition to the above, Bmsy is a very elusive parameter to estimate. Largely dependent on ecological conditions that can be highly fluctuating, Bmsy is not a “stable” parameter. ICES define Bmsy (ICES 2016) as: The expected average biomass if the stock is exploited at Fmsy for a long time.

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This is extremely important: ICES define Bmsy not as a fixed parameter, but rather as an average of the level of biomass that can be expected if the fishery is conducted at Fmsy level on a stable basis. In this regard, the notion of Bmsy as an aspirational objective rather than as a legally-binding target, corresponds much better to the scientific basis for the policy. In the same document, ICES remind us that: Fishing mortality is the only variable that can be directly controlled by fisheries management. A management strategy that harvests variable yield in response to natural variability in stock size will on average give yields closer to the long-term MSY than a strategy operating with the maximum constant yield that could be taken sustainably.

This is a clear indication that management should be based on fishing mortality, not on estimations of constant maximum stock abundance or yields, at least from the point of view of harvest levels. However, it must be recognized that from an economic standpoint, the industry may prefer in some cases a strategy based on constant TACs, even at the cost of a lower overall harvest levels.

The US system As we saw in Chapter 2 under the headings “Policy objectives in other countries; The United States”, the first of the 10 national standards under the Magnuson-Stevens Act (MSA) establishes as an objective “optimum yield” and the avoidance of “overfishing.” While the notion of “optimum yield” is difficult to grasp, because it cannot necessarily be equated to the biological notion of MSY, the avoidance of overfishing is a clearer objective. To achieve that, the US system uses a combination of fishing mortality and biomass. But the way they are applied is interesting: • A fishery is considered to be undergoing “overfishing” when the fishing mortality is higher than Fmsy (F > Fmsy ). • A stock is considered “overfished” when its biomass is lower than a certain threshold called “minimum stock size threshold” (MSST), which is established at half the value of Bmsy (B < MSST = 0.5 Bmsy ).

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It is important to understand that the notion of overfished does not necessarily mean unsustainable. In fact, it is possible for a fishery to be sustainable and stable at low levels of biomass. It is also interesting to note that while the criterion on fishing mortality is very strict (any level of fishing mortality higher than Fmsy corresponds to overfishing) the criterion on biomass is far less demanding, considering that a stock is not overfished even if its biomass is considerably lower than Bmsy , just as long as it higher than 50% of that value. In other words, that while the US policy is very strict on fishing mortality levels, it is much more flexible on biomass levels. From this perspective, the US and the EU system are very different, with the US policy being much more flexible in its aspirations for high levels of biomass for all stocks as a result of sound management. This is important to have the right expectations when analyzing the performance of the CFP.

Estimating Fmsy The notion of Fmsy can be implemented in different ways according to the type of stock managed, the type of fishery where it is caught, and the type and quality of the scientific advice available. It is not possible to use one single definition and estimation method and extend it automatically to all stocks and fisheries. This implies that the notion of MSY as a magic figure is neither realistic not possible in many cases.

Single-stock Fmsy vs. ecosystem-based Fmsy The traditional Fmsy estimates, such as those regularly produced by ICES, are primarily based on single-stock considerations that do not fully incorporate aspects of the ecosystem functioning, such as density-dependent population dynamics, sexual maturity, and so on. The consideration of these factors in the estimation of Fmsy values results in higher levels of mortality and thus higher sustainable yields. In other words, ignoring ecosystem factors leads to estimates of Fmsy that can cause foregone yields.

Certain authors have estimated these foregone yields to be very substantial, in the order of magnitude of 40% (Gislason 1999; Collie et al. 2003; Sparholt and Cook 2009; Fernandes and Cook 2013). ICES is also aware of this fact (ICES 2013a). This has very important implications for management: single-stock Fmsy estimates that ignoring ecosystem effects may produce in fact a very ineffective way of exploiting fishery resources sustainably. This is of high relevance considering that the policy itself is meant to promote the ecosystem approach. In the perspective of increasing the production of seafood (see Chapter 13) the need to include ecosystem elements in the estimation of Fmsy levels, replacing the current single-stock approach, must be put on the table.

Proxies for data-poor fisheries Fmsy can be well-estimated in data rich stocks. However, not all stocks are data-rich, and many will, arguably, never be. What to do in those cases? In these cases, a heuristic approach is necessary, through the use of Fmsy proxies that provide estimates of Fmsy -like objectives that can be derived from the data available. The scientific literature provides for a number of proxies that can be adequate for different cases. ICES (2015) has summarized the approaches on MSY proxies for data-poor stocks. This report shows the wide range of methodologies used by ICES to estimate MSY proxies depending upon stock characteristics and level of data availability: • Life history indicators • A stochastic production model in continuous time (SPiCT) • A mean length mortality estimator • The length-based spawning potential ratio (SPR) method • The catch-based MSY method • The age-based methods • ICES also indicate that for certain stocks, such as silver smelt, the MSY remains difficult to assess.

Implementing maximum sustainable yield There are also very creative approaches where data-poor stocks can be evaluated through analogy to similar, data-rich stocks. This is known as the “Robin Hood approach” whereby values for parameters of selectivity functions are provided to data-poor assessments in the form of penalties on the estimated parameters, which leads to stock assessments for the most data-poor stocks being informed by those for the data-rich stocks (Punt et al. 2011). New approaches are also being developed based on the life story parameters of the species: a datapoor stock can “borrow” the evaluation of data-poor stocks having a similar life story in the same area. The above consideration shows two important things: (i) that MSY is not a magic figure that can be obtained with similar methods in all cases; and that (ii) the objective of MSY by 2020 may have to rely on different management approaches for different stocks. A standard, unified approach for all stocks is not possible.

Alternative approaches: escapement strategies In some cases, the notion of Fmsy is poorly adapted to the population structure. In particular, the abundance of short-lived stocks (anchovy, sandeel, etc.) depends primarily on annual recruitment. In these cases, rather than an elusive Fmsy concept (which would be very variable in different years), these stocks can be better managed by the so-called escapement strategies, which consist of evaluating the strength of the annual year class as the main component of the spawning stock biomass, and then reserving a proportion of that biomass that should “escape” fishing mortality to reproduce the stock, the rest of the biomass being available to fishing. In some cases, managers establish not two, but three components: one for reproduction, another one as food for predators, and the third one as quota for fishing. This is in fact a further step in the implementation of the ecosystem approach, by introducing a trophic element into the evaluation of the amount of fish that

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needs to remain in the sea, not just for stock reproduction, but for the preservation of a prey species. We will refer to this in Chapter 8. ICES has recently reviewed the different methodological options (ICES 2017). The real question from the point of view of the policy is: is an escapement strategy an equivalent to MSY? The answer is yes: an escapement strategy can establish, with different levels of probability, the annual amount of fish that can be removed while maintaining a high probability of avoiding reproductive failure. From that point, the MSY can be considered as the very fluctuating yield that could be harvested every year based on the natural fluctuations of the stock.

Fmsy as a target or as a limit? Fmsy can be applied either as a target or a limit. If it is a target, this implies that the management uncertainty can result in real F levels that are either higher or lower than the Fmsy established, so that such objective would be reached only on average. On the contrary, if Fmsy is considered a limit, then it would be necessary to establish the probability of the real fishing mortality to be lower than the limit. This probability cannot be 100%: this would imply closing down all fisheries. The question is then: if Fmsy is a limit, what is the acceptable probability of managing the fishery within the limit in practice: 95%? 90%? 51%? Obviously, depending upon the probability established the management would give extremely different results: if the probability is established at 95%, very low catch limits would be established. The lower the probability, the higher the catch levels, and if the probability was 51% this would be almost identical to Fmsy as a target. This question may look technical but it has considerable legal and political implications, in terms of policy output and also in terms of the evaluation of the success of the policy (see Chapter 1). If we implement Fmsy as a target, the good implementation of the policy would still lead to a situation where in any year stocks

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would be equally likely to be above or below Fmsy . This would not be a bad result at all, if we look at the history of the CFP, but it would “look” to some as not corresponding to the policy objective of the 2013 reform. If we implement Fmsy a limit, a new discussion would be necessary to determine the probability level that such limit would be overshot. And in any case, even under the “limit” scenario, there would still be a certain number of stocks whose fishing mortality still may be higher than the limit Fmsy , thus giving the impression of policy failure if the number of stocks at Fmsy is not 100% in 2020, even if we succeed in having all stocks around the target. In any case, considering Fmsy as a limit, the result would be that on average the level of exploitation of stocks would be lower than Fmsy . The problem is that this issue was not discussed at all in the trilogue, so any definition would be legitimate. In practice, the Commission has implemented Fmsy as a target in the first proposal for a multiannual plan, for Baltic stocks, although the final decision by the co-legislators was to apply this as a limit with exceptions (EU 2016a). The same approach has been adopted for the North Sea (EU 2018b). This seems to establish this as the standard to follow, but the discussion lingers on and it is far from obvious that this will be consolidated in the future.

The notion of risk in fishery management The above discussion on the use of Fmsy as limit or target boils down to the discussion of the notion of risk in fishery management. As is always the case in the management of natural resources, the management system has to deal with a high level of uncertainty, that no amount of science will ever be able to eliminate completely. The question of risk is also double-faced, in the light of the above considerations on full utilization of resources: the most obvious risk is that the rate of exploitation of many stocks will be higher than that corresponding to long-term sustainability, but another risk would be to

establish a level of fishing that will be so low (at least for a number of stocks) that the fishery will fail to deliver its full potential. The consideration of these two risks together changes substantially the notion of risk which, traditionally, only referred to the risk of overexploitation. The level of risk acceptable is not a simple question. It depends on many factors and ultimately, it depends on the weight given by managers and stakeholders to different factors, such as the economic and social consequences of their choice of risk level. It is then logical that in different cases, different fisheries and different places the level of acceptable risk may be different. Traditionally, the notion of risk has been associated only with the biological aspects: provided that the risk of biological over-exploitation is averted, all other risks tended to be ignored. It is important that this risk continues to be averted: the CFP’s job to ensure sustainable stocks is not yet achieved, and all efforts should continue to be done toward that objective. However, as we move to a future where the individual stock objectives will be combined with the landing obligation and all under relative stability, the risk of under-exploitation will have to start being looked at just as well, since such under-exploitation is also contrary to the objectives of Article 39 TFEU. The level of risk will obviously determine the relative success of the policy: a very low risk management will ensure that most stocks will not be overfished, but at a cost: a lower level of exploitation of potential yields and potential food production. A higher risk can lead to a certain number of stocks being overfished, but a potentially higher overall level of exploitation and food production. To be sure, the biological health of the resources is a pre-condition for the other objectives of Article 39 TFEU to be achieved. Biological sustainability must therefore be a priority in terms of risk evaluation. But the question is: when certain levels of sustainability are achieved, at least for the main species, the further pursuit of biological recovery may lead to very significant foregone yields, which in

Implementing maximum sustainable yield turn can be considered as not corresponding to some of the objectives of Article 39.

The US case In the case of the US, the first of the 10 national standards talk about “optimum yield.” This optimum yield is defined as: Maximum Sustainable Yield as reduced by social, economic or ecological factors (emphasis added).

The word “reduced” was introduced in the 2006 reauthorization of the MSA to replace the term “modified,” as it was understood that the MSY modified by social and economic factors gave rise often to TAC levels that did not ensure the sustainability of the stocks. The term “as reduced” clearly indicates that the MSY notion is a limit, not a target. However, there is no indication of what is the probability level to overshoot MSY, as we indicated above. This level of risk of overshooting the limit is decided on a case-by-case basis, following the advice of the Regional Councils, each of which have a risk management policy. Many use a P* (probability of overfishing) concept.8 This implies that, in some cases, the TACs are established at F values considerably lower than Fmsy , that is, at a very low level of risk, while in other cases the TACs corresponds to F values much closer to Fmsy (higher levels of risk). In those cases, there is little difference between the F as a limit and the F as a target. In any case, the US system has an obvious effect: it leads to lower levels of fishing than those corresponding to a full exploitation of resources at MSY levels. This has been described as a system of “conscious under-exploitation of natural marine resources so that marine ecosystems are preserved in perpetuity while contributing to food production” (Mace 1999). This is, however, an objective that reflects what one can qualify as a US perspective that is, the philosophy that under-exploiting fishery resources is not a problem, because the 8 http://archive.nefmc.org/tech/cte_mtg_docs/ 101102-03/abc_control_rules/5_Fisheries%20Forum %20-%20Regl%20Risk%20Policy%20Report.pdf/

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country has very extensive and fertile farmland to ensure food security. While this is understandable for countries like the US or Canada, the idea of a policy of “conscious underexploitation” of fishery resources is less obvious for countries with limited capacity to produce food, or even for countries relying on imported fish (as we will see in Chapter 12).

Fmsy : a point value or a range? Background Regulation 1380/2013 does not define how to express Fmsy . While it is true that in the absence of such definition it is generally understood that Fmsy is a point value of fishing mortality, it is also true that other interpretations are also possible, such as considering Fmsy as a range of F levels that would tend to deliver MSY. The question is important for a very simple reason: it is not clear that in mixed fisheries all stocks can be fished exactly at their individual Fmsy levels. That means that if some stocks in the mix are fished at their individual Fmsy value, other stocks may be fished at higher or lower values of fishing mortality. And the only option to ensure that no individual stock is fished at levels higher than Fmsy is probably to fish some of the stocks in the mix at F levels lower than Fmsy : it is clear that all stocks cannot be fished at Fmsy simultaneously. The Commission, in the framework of longterm plans, has proposed to express Fmsy values for individual stocks as F ranges, not point values. There are two reasons: • The need to find a solution to the institutional deadlock on the relationship between Council and Parliament on the interpretation of Articles 43§2 and 43§3 TFEU; and • The need to find a solution to the possible effects of the combination of three policy elements: MSY for individual stocks, discard ban and relative stability in mixed fisheries, possibly leading to the need to close fisheries when the quota of the weakest stock is exhausted while plentiful quotas for other associated stocks remain uncaught (see the

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“choke species” issue in Chapter 4); a scenario that could be considered as contrary to Article 39 TFEU. In the first long-term plan adopted (for the Baltic Sea) the co-legislators accepted this approach but including a considerable number of conditions on the use of the upper and lower part of the F ranges. In any case, the issue remains controversial, and NGOs in particular consider that Fmsy values in the upper part of the range are higher than Fmsy , that means, they consider that Fmsy can only be a point value.

The case for fishing mortality ranges The idea that the Fmsy notion is necessarily a point value is not warranted. Selecting a target fishing mortality rate within a range allows optimization of sustainable yields while allowing consideration of other aspects to be included in decision-making (Hilborn 2010). In addition, the flatness of the yield curves of many stocks (Pope 1983) allows for a large space to operate in that regard. In economic terms, it is obvious that in mixed fisheries, achieving overall economic benefits may require certain low-productivity stocks to be fished at fishing mortality rates higher than those corresponding to their individual Fmsy (Pascoe and Mardle 2001). This suggested the consideration by the Commission of fishing mortality ranges as a possible solution. This was also aided by the need to resolve a long-standing inter-institutional irritant that had blocked the adoption of new management plans and even the amendment of existing ones since the entry into force of the Treaty of Lisbon in 2010. F ranges and the inter-institutional problem It is important to leave a written record of the institutional reasons why the Commission proposed, and the legislators finally accepted, to implement the fishing mortality objectives as F ranges in the Baltic Sea multispecies management plan (EU 2016a), establishing a precedent for subsequent plans.

The first recovery and management plans, adopted under the previous basic regulation (EU 2002) were prior to co-decision in fisheries. That means that both the multiannual plans and the corresponding annual TACs were adopted by the Council of Ministers alone. This allowed the plans to establish “harvest control rules” that would turn the annual decisions on TACs into an exercise of implementation of a multiannual strategy. This was institutionally acceptable, although not exempt of implementation problems, because it meant annual self-discipline, imposed by Council onto itself. But everything changed with the Treaty of Lisbon, which established that co-decision (under Article 43§2 TFEU) would be the ordinary legislative procedure for the CFP, while certain annual regulations, such as annual TACs and fish guide prices would remain as an exclusive competence of Council (under Article 43§3 TFEU). As a consequence, the multiannual management plans would have to be adopted by co-decision (Art. 43§2) while annual TACs would still be adopted only by Council (Art. 43§3). This introduced a new problem: if the multiannual plans continued to include detailed “harvest control rules” establishing the “formula” to calculate annual TACs for the stocks concerned, then the decisions on annual TACs would be just “rubber-stamping” of the multiannual plans, and therefore the Council under Art. 43§3 would have no room for maneuver (TACs would be automatically established by the harvest control rule, and Art. 43§3 would then be devoid of content, at least for the stocks under these plans). This was politically unacceptable for Council that saw the establishment of annual TACs as a prerogative that it was not ready to give up. The alternative proposed by Council (that multiannual plans would not include a harvest control rule) was not acceptable for the Parliament, or indeed for the Commission: • For the Parliament, because excluding the harvest control rule from multiannual plans would remove from co-decision some of the

Implementing maximum sustainable yield most important decisions in the CFP: those concerning the basic balance between the biological need to recover the resources, and the consideration of gradual approaches to take economic and social factors into account. This balance is best expressed in the harvest control rule of the plans. For the European Parliament, the position of Council meant leaving Art. 43§2 empty of content as regards fundamental decisions on resource management. • For the Commission, because a multiannual plan without a long-term strategy on how to establish annual TACs would be worthless, and also because a plan without self-discipline by Council would be a step backwards: without any rules on TAC setting, the annual TAC setting process would revert to past practice as stand-alone decision-making procedure based on shortterm considerations. In this context, the lack of agreement between the two co-legislators resulted in a period of more than five years (from the entry into force of the Lisbon Treaty in January 2010 to the adoption of the Baltic multiannual plan in early 2016) in which no single plan was adopted or even amended. This situation clearly had to be resolved. And the solution was so difficult that the Commission proposed and the co-legislators agreed to avoid the question in the context of the negotiations for the reform of the CFP concluded in 2013. In fact, article 10.1 of regulation 1380/2013 reads: As appropriate, and without prejudice to the respective competences under the Treaty, multiannual plans shall include . . .

This language was crafted to ensure that the institutional impediment did not stand in the way of an agreement on the reform package, so the question would have to be resolved at a later stage. Once the CFP reform was adopted the co-legislators established a Task Force to find a solution to the problem. This Task force was

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structured as a trilogue, and worked on the basis of Commission non-papers proposing compromise solutions. After a number of meetings of the Task Force, a final text was agreed, providing for a satisfactory and balanced solution to the problem. The key to the agreement was the Commission’s idea to implement the Fmsy objectives as ranges instead of point values. This means that the multiannual plans would not determine an exact formula to calculate annual TACs, but only a framework within which different TACs would be possible. This provided a win–win situation: • For Parliament, it ensured that they had a say in determining the basic balance between biology and socio-economics in the management of EU fisheries, by fixing the fishing mortality limits and timetable (as well as the safeguards, see below) of stock recovery and management within multiannual plans; • For Council, it ensured that annual TACs would not be entirely constrained by codecision: within the established framework, annual TACs could still vary to some extent, depending on Council-alone decisions. The conclusions of the Task Force were a breakthrough, in terms of how to find a solution to the problem and how to move forward. Meaningfully, the Task Force was composed, in the three institutions (Council, Parliament, and Commission) by the same people who had negotiated the reform, which clearly indicates that the Task Force was ideally placed to interpret the intentions of the legislators in 2013 when finding a solution to this problem. The conclusions of the Task Force were not formally adopted by the co-legislators, so their value is more political than legal. They were instrumental in agreeing on the Baltic plan and subsequent ones, which demonstrates their considerable policy value.

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Chapter 3

F ranges: handle with care. Are they precautionary? The main problem associated to the use of F ranges is the allegation that the upper part of the F ranges may not be precautionary. As we saw above, the Baltic plan established limitations on the use of the upper part of the F ranges. In fact, scientists have warned that sustained fishing in the upper part of the ranges may lead to unacceptable risks when technical interactions occur (Ulrich et al. 2017). The reply to this question is not straightforward. In a meta-analysis carried out by European scientists, to assess if “pretty good yield” F ranges can be used without impairing recruitment, it is demonstrated that the reply to this question is different in different cases. By analyzing a limited number of cases, they found that fishing at Fmsy is generally precautionary with respect to impairing recruitment for highly exploited teleost species in Northern waters, whereas the upper part of the range providing 95% of MSY is not necessarily precautionary for small and medium-size teleost fish. The study further concludes that these results do not apply to non-teleost fish, such as sharks and rays, with lower reproductive potential (Rindorf et al. 2016). This points to the consideration of an asymmetrical range around the Fmsy point value, with more flexibility for the lower than the upper part of the range. This implies that the use of F ranges must be subject to the evaluation of the precautionary character of the upper part of the range, and this has to be assessed case-by-case. In other words, F ranges must not be a right but just a possibility to address the mixed fishery problems described above, and always within a framework of achieving sustainability. The solution to this is already available: scientists can calculate ranges that correspond to “precautionary” levels, understood as 95% chance of spawning stock biomass staying above Blim . In the case of the North Sea multiannual plan, the higher number of species involved, and the secondary nature of some species, introduced a new element: the possible choke species effects. Such effects would be especially unwelcome if

caused by minor species of minimal value in the overall economic performance of the fleet. This introduced a new element in the picture: the definition of two categories of stocks: those with specific F objectives (target stocks) and the secondary stocks (by-catch stocks) for which other measures would be established. The comparison between the two cases shows a positive evolution, demonstrating that some of the lessons of the Baltic case were learnt. In addition to the distinction among target and by-catch species, particularly necessary because of the much higher number of stocks managed in the North Sea as compared with the Baltic, the North Sea plan included a much more flexible approach for the provision of scientific information and deriving management advice.

The on-going experience: MSY in multiannual management plans Whatever the theoretical considerations, the notion of MSY, both related to fishing mortality and to spawning stock biomass is already subject to practical implementation, notably in the context of multiannual management plans (MAPs). At the time of writing this volume, two of such plans have been adopted under the new CFP, and others are in the pipeline. MAPs already in place are those for the Baltic Sea (EU 2016a) and for demersal stocks in the North Sea (EU 2018b). Moving forward, the tendency of the CFP to “cut and paste” precedents to ensure a level playing field is very likely to establish these two MAPs as the “gold standard” in terms of how the MSY approach is implemented.

F ranges and the choke species problem: the Baltic precedent The negotiation of the Baltic multiannual plan was a first opportunity to apply the guidelines adopted to resolve the institutional deadlock, but also to recognize that individual Fmsy values in mixed fisheries could result in certain sustainable quotas not being fully exploited, due

Implementing maximum sustainable yield to choke species effects. This discussion was made difficult by the lack of experience: the arguments were theoretical, and it was not easy for the co-legislators to grasp the problem in practice. On the other hand, the insistence from certain groups in the European parliament, who were reluctant to accept the idea of Fmsy being represented by a range, led to the adoption of a solution that would minimize the use of the upper part of the range and would establish safeguards in case stock abundance would fall under certain levels. For example, according to Article 4.4 of the regulation, the upper part of the F range could be used only in the following cases: (a) if, on the basis of scientific advice or evidence, it is necessary for the achievement of the objectives laid down in Article 3 in the case of mixed fisheries; (b) if, on the basis of scientific advice or evidence, it is necessary to avoid serious harm to a stock caused by intra- or inter-species stock dynamics; or (c) in order to limit variations in fishing opportunities between consecutive years to not more than 20%. In addition, legislators also adopted certain safeguards, laid down in Article 5 of the regulation to the effect that, if the biomass of the stocks regulated would fall under a certain threshold level, this would trigger special action. Overall, this was a compromise that preserved the basis of the inter-institutional agreement and provided for some flexibility in the implementation of fishing mortality targets, but with limits and guarantees to prevent possible negative effects of an excessive flexibility. The difficulty in adopting this regulation was justified not only on the differences of approach allowed under Regulation 1380/2013, but also based on the value of this proposal as a precedent for others, in yet another example of the tendency of the CFP to ensure a level playing field that stifles the necessary flexibility of approach in different circumstances.

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The consolidation of F ranges The Fmsy ranges were consolidated in the first two multiannual plans referred to above. The plans established an F range divided in two parts, upper and lower, separated by the Fmsy point value, with associated conditions for the use of both parts. In fact, these plans introduced the idea of F levels in the lower part of the range (that is, using Fmsy as a limit) as the normal criterion, leaving the use of the upper part of the range to very special conditions: • When the stocks concerned have a spawning stock biomass higher than an estimated threshold level (MSY Btrigger ); and • When it was necessary for the purpose of avoiding choke species effects and preventing too high inter-annual variations of the TACs (up to 20%). This implies that Fmsy should be considered to be a limit in normal circumstances, and only in case of healthy stocks, and on additional considerations of choke species or inter-annual stock variation, can the upper part of the range be used. In other words: Fmsy is used as a limit, and in special circumstances as a target. The question of how frequently will the plan actually allow for the use of the upper part of the range will depend on how the scientific advice interprets the notion of MSY Btrigger . In fact, the Baltic multiannual plan defines MSY Btrigger as: MSY Btrigger means the MSY trigger reference point, expressed as spawning stock biomass, below which specific and appropriate management action is to be taken to ensure that the exploitation rates, in combination with natural variations, rebuild the stocks above levels capable of producing maximum sustainable yield in the long term (emphasis added).

This definition is different than the one provided by ICES, and this only introduces an undesirable confusion. In effect, ICES define MSY Btrigger simply as “the value of spawning stock biomass (SSB) that triggers specific management action” 9 . 9 www.ices.dk/community/Documents/Advice/ Acronyms_and_terminology.pdf/

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In addition, the idea that MSY Btrigger should “ensure” anything when combined with natural variations is an example of trying to legislate the behavior of nature, something obviously hopeless. The idea of ensuring a given result in terms of biomass for a highly fluctuating fish stock is alien to the management of natural resources. Finally, it is difficult to interpret what is meant by “in combination with natural variations.” If this definition is treated literally by scientists, it may result in fisheries being closed when the biomass is lower than MSY Btrigger , and even so this would never “ensure” that biomass rebuilds to any given level. In fact, this definition tries in practice to recover the proposal by the Greens during the 2013 reform process, who wanted the objective of the policy to be expressed in biomass. In a way, this language implies that the fishing mortality should be determined by the obligation to reach a certain biomass level, rather than considering the biomass level as an expectation if and when the right fishing mortality is applied. Finally, having a definition of MSY Btrigger in EU law that does not correspond to the ICES definition is a perfect formula to create confusion. The alignment of the EU definition to the one used by ICES would be the best solution to avoid any confusion or wrong expectations.

The safeguards: biomass thresholds The two MAPs also established a system of safeguards. Although the co-legislators understood that the intention of the basic regulation as regards the MSY objective was to use fishing mortality, and not biomass as the operational parameter, the aspiration on Bmsy strongly influenced the outcome of the trilogue on the two MAPs. In particular, under strong pressure by the Greens the two MAPs included biomass-related safeguards. They imply that if the estimated spawning stock biomass of the stocks concerned were below certain threshold levels, then exceptional measures would apply. This implies that one of the declared objectives of the F ranges, as mentioned above, the

avoidance of “choke species” problems, can only take place in certain cases, when biomass levels are in excess of threshold levels. This limits considerably the value of F ranges.

Should all plans reproduce that precedent? Under the CFP, there is a strong tendency to follow precedent. The question is, then: should other areas, where circumstances are different, follow the same model? This is of particular relevance for the establishment of MAPs in the Mediterranean. If precedent is followed, once a strategy for implementing MSY has been established for one MAP, the same strategy should be employed in subsequent plans to ensure a level playing field. However, there is a fundamental problem with this approach: it corresponds to the deeply-rooted tradition of the CFP that maintaining a level playing field implies legislative harmonization, something that the US system (see Chapter 2) proves wrong: the same standards can be reached with very different solutions. A “cut and paste” strategy based on the Baltic precedent may be politically easier, but has important downsides: • It ignores the capacity of the system to learn from experience. • It ignores the different characteristics of the different fisheries in question, which can have, inter alia, very different needs to address choke species problems. • It ignores the differences in the management instruments used. While these safeguards can work for a TAC-based system, they may be inadequate for the effort-based system used in the Mediterranean. Overall, the development of multiannual management plans, the centerpiece of EU fisheries management under the new CFP, should respond to the philosophy that inspired the regionalization of the policy: to achieve the same standards while adapting to the characteristics of different fisheries and sea basins. This implies an important change in current practice, as we will see in Chapter 9.

Implementing maximum sustainable yield

Fmsy for all stocks: what does it mean? Article 2.2 of the basic CFP regulation establishes MSY objectives for all stocks. But is it obvious what that means in practice? Although the standard interpretation in the Atlantic and the Baltic is that “all stocks” means those with a TAC, a number of doubts have been raised regarding the exact interpretation, particularly in the context of multiannual management plans: • For some stocks there is no standard estimate of MSY, so they can hardly be treated as those having such estimates. • Some stocks are small and marginal, and the value of their management at Fmsy is almost nil, as the fishery is conducted on the basis of the main stocks. Some of these stocks can also be important choke species. This poses a serious question of proportionality. • In the Mediterranean, where TAC management does not exist, the whole notion of “all stocks” is open and subject to different possible approaches. • Finally, the regulation itself has an alternative to Fmsy objectives, as laid down in Article 9.5 of Regulation 1380/2013 for cases where increases in selectivity in mixed fisheries may not be possible. In this case, specific alternative measures shall be taken. The term “all stocks” has to be defined on a case-by-case basis in the context of the multiannual plan. In fact, an important precedent has already been set in the North Sea management plan for demersal stocks (EU 2018b): the distinction between target stocks for which specific Fmsy ranges are established as objectives, and the by-catch stocks for which an alternative approach is set. In the case of the Mediterranean, the question is even more complex. The recent proposal for a multiannual plan for the management of demersal stocks in the western Mediterranean (EU 2018c) establishes F ranges as objectives for a relatively wide range of stocks. This approach, largely influenced by the aforementioned Baltic and North Sea MAP development approaches, poses a new problem: since the management

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instrument proposed is primarily an effort regime: how can the effort level ensure that the fishing mortality of all these stocks is kept within the range? This is a question where only the ongoing discussion and the future experience of implementation will tell.

Data-poor and secondary stocks: manage them to MSY? Introduction All fishery management systems in the world have to cope with stocks for which there is too little scientific information to ensure proper scientific evaluation. As fisheries research tends to concentrate on the most commercially important species, data-poor stocks tend to be those of minor economic importance, although there are exceptions to this general rule. All management systems, to a different degree, handle this question on the basis of two different kinds of solution: • Trying to regulate all stocks, even at the cost of many of them being subject to very simplistic and unsophisticated advice and management, as data-poor stocks. • Trying to regulate only the main stocks (generally the most important commercially, but this can also vary) and leaving secondary stocks outside the evaluation/management cycle, and assuming that the management of the main stocks can provide sufficient assurance that secondary stocks will be reasonably healthy. Different management systems have a different combination of these two solutions, although some, like the US or the New Zealand systems, tend to solve the problem by enlarging the evaluation to the widest possible range of stocks. This implies that while the main species are fully evaluated, the less important ones must have simplified evaluation. In New Zealand, for example, more than 600 stocks have been defined (most of them in inshore waters) but only around 24 have a “state of the art” evaluation. For the rest, simplified methods are used (Kevin Stokes, personal

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communication). In the US west coast, 2/3 of the 90+ managed stocks are without traditional assessments to help define stock status in relation to management targets. For those cases, stock complexes are often employed for management purposes. Productivity–susceptibility analysis (PSA) is used to assess the vulnerabilities of these stocks (Cope et al. 2011). The evaluation and management of data-poor stocks have been subject to different approaches, in the US (Cope et al. 2015), Australia (Dowling et al. 2015) and other countries. Interestingly, some of the US regional councils have encouraged the preparation of guidelines on the assessment of data-poor stocks (Anon. 2011). Progress in the evaluation of data-poor single stocks has been important in recent years (Thorson et al. 2013; Rosenberg et al. 2014), so there are fewer and fewer excuses for failing to address the management of these stocks. In the case of the CFP, the approach is mixed. The evaluation/management system applies to the main but not all stocks occurring in EU waters, but among them many are data-poor and subject to a different evaluation methodology. In fact, a number of EU-regulated stocks have always been data-poor and have long suffered from almost total absence of scientific advice. An important improvement was introduced in 2012 through the data-limited stocks (DLS) approach, which provides precautionary quantitative advice on data-deficient stocks (ICES 2012). This new approach has in fact established a new scenario, where the number of stocks without advice has been dramatically reduced. The issue has also received attention from the European Parliament, which commissioned a very useful study on the subject in 2013 (O’Brien and Le Quesne 2013).

Which stocks to manage? We referred above to the question of what stocks should be considered subject to the MSY objective as the basic regulation refers to all stocks. But the question of the stocks to manage is wider: over and beyond the specific management of all regulated stocks under a specific MSY objective, the question of whether

certain secondary stocks should be managed at all must also be discussed. The debate is complex. In principle, it would seem as though the largest the number of stocks evaluated and managed, the better, from the point of view of ensuring sustainability and ecosystem stability. However, the question is not so simple, and the extension of the number of species evaluated and management ad infinitum would also have downsides: • Evaluation and management are costly. In the US it is estimated that relatively simple assessment can cost between $30 000 and $50 000 (excluding the cost of basic research), while a more complex evaluation can cost $250 000–$300 000 (Lapointe et al. 2012). And this cost does not include data collection or peer review. This is higher than the annual revenue generated by certain secondary stocks. There is, therefore, an important consideration of cost effectiveness of the management system. • The increase in the number of regulated stocks makes management more complex (including more complicated rules on quota management, technical measures, choke species effects, etc.) with less than obvious benefits in terms of the overall fishing pressure on the main species. • Some of the secondary species represent a very low percentage of the catches, and even a low percentage of the biomass in the ecosystem. It is estimated that, in the North Sea, the main seven species regulated account for 90% of the catches, while the remaining 10% accounted for 15–20 species. A number of these secondary species are indeed part of the TAC and quota system, representing increased complexity and cost and little, if any, benefit in terms of the overall management of the North Sea fishery. The CFP, like most fisheries management systems around the world, does not manage all the species of the ecosystem. In general terms, only the main commercial species are regulated, while species of minor economic importance are generally left out of the management system. This has been justified, for

Implementing maximum sustainable yield example in the case of Norway, by at least two reasons (Gullestad et al. 2014): • The management of minor species is not cost-effective. • Many of these species are coastal and largely exploited by an unknown number of recreational fishermen. By and large, these reasons can also be applied to the management of stocks in the Atlantic and Baltic under the CFP. Certain stocks represent such a low economic interest that the cost of their management could actually be greater than the economic value of the landings. In some other cases, very local, coastal fish are only exploited by very artisanal or recreational fishermen, and do not lend themselves to management at European level.

Are the EU-managed stocks the right ones? As the policy applies to the regulated stocks, it is pertinent to ask the question whether the stocks currently regulated under the CFP are the right ones. Does the CFP need to include more stocks? Or perhaps certain secondary stocks should not necessarily be managed? The achievement of the Fmsy objectives for stocks of secondary importance poses several kinds of problem: • A number of them are data-poor, and do not have estimates of Fmsy . It is necessary to use proxies. • Some of them do not have any real influence on the decisions made by the skippers. The question is then whether it is worth to invest in their research and management. Should these stocks be kept under the TAC and quota system? • Some secondary stocks must be subject to the discard ban from 2019 onward because they have a TAC. This aggravates the “choke species” problem (see Chapter 6). Actually, the list of regulated stocks in European waters is not necessarily the result of an objective analysis of the cost/effectiveness of their inclusion in the management system, but rather the result of many years of development of the policy, very often responding to

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political considerations, over and beyond pure cost/effective management. Stocks that perhaps should be managed by the CFP Some stocks of considerable importance are not managed under the CFP. There can be several reasons to explain this: • Certain stocks were not present, or sought after by fishermen at the time of establishing the list of regulated stocks (1983 for the initial ones, with more stocks added as a result of successive enlargements). In recent times, however, either their presence has increased (due to global warming?) or new commercial interest has been developed. This case is exemplified by stripped red mullet (Mullus surmulentus) in the North Sea, now abundant and commercially exploited in this area but not yet subject to management under the CFP. The reason is that the management would require an allocation key among Member States, a question for which there is no appetite in any administration. • In other cases, the difficulty of solving allocation problems among Member States concerned prevented the EU from taking measures to manage stocks that were always considered commercially and biologically very important. There is no better example of this than Iberian sardine, shared by Spain and Portugal and essential for both Member States, but traditionally not subject to EU management under the CFP because no agreement on allocation could be reached. Only in recent years has the EU agreed to delegate the management of this stock to the two Member States concerned. • Finally, in other cases the key importance of recreational fishing in the management of the stock represents a major obstacle for traditional EU management, which as we saw generally excludes recreational fishing. This is the case of sea bass (Dycentrarchus labrax) where the already difficult question of allocation among Member States only adds to the difficulty of regulating the massive level of recreational catches. Recent measures

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adopted for this stock demonstrate the difficulty of addressing that combination of problems in a stock that should benefit from high priority for management on account of its economic and ecological importance in EU waters. The solution to this problem is not straightforward. Bringing these stocks under CFP management would in effect require an agreement on allocation. This has proven difficult enough but in the context of the implementation of the new CFP of 2013, bringing more species into the TAC and quota system would only aggravate the choke species problem. In addition, these species are not unregulated; either they have some kind of provisional management, or management by Member States through delegation, with results that must be carefully evaluated. For these reasons, the balance of pros and cons of such an initiative must be carefully balanced. Beyond that, there is also a question of need and priority. Put it another way, a question of cost/efficiency. If we take the three cases above, there is a different degree of need to bring these stocks in the CFP. • For stripped red mullet in the North Sea and adjacent areas, ICES have produced advice. Nothing therefore prevents its management. However, the question must be evaluated in the light of several questions: how does a fishery for this stock interact with other stocks subject to EU TACs and relative stability? What would be the added value for the overall management of North Sea stocks? How much of a choke species effect would this produce? The fact that there seems to be no particular demand to manage this stock tend to give a certain indication that the possible management of this stock may be seen more as a problem than a solution to anything. • For Iberian sardine, the stock is regularly evaluated (ICES 2013b), so the scientific basis is available (and better than that for other stocks under EU TACs). The question is whether the bilateral management between Spain and Portugal, now enshrined in EU

law, is equivalent to that under direct EU management. • For sea bass, the status of the stock, with increasing fishing mortality and plummeting biomass, together with its widely-distributed nature and the complex mix of gears and Member States involved, should make it a real priority to bring this stock under the mainstream EU management system. Recent arrangements (EU 2017) in the absence of such management, can only be considered an exceptional, transitional situation. In addition, it is perhaps the best example of how an efficient management regime for a stock cannot take place if recreational fishing is not included in management. Overall, the question of which stocks should be managed under the EU regime is not only about reducing the number of stocks, but also about the need and opportunity to include a few, key ones. Furthermore, it is important for the future of the CFP that the discussion on which stocks to include under the EU management system should take the form of a science-based analysis of advantages and disadvantages, and not consideration on political opportunity. Stocks that perhaps should not be managed by the CFP The CFP has brought into the TAC and quota system a certain number of species of secondary importance. The reasons are varied, but in general they originated from the idea of ensuring that no fishery can develop outside the TAC and quota system itself or, in some cases, to use the management (and the associated relative stability) to consolidate fishing rights. While these are legitimate considerations for Member States and their industries, the result is a system where the need and opportunity to regulate certain species can be questioned. In effect, certain species are secondary in economic terms; there are almost no directed fisheries for them, and their catches do not determine fisheries behavior: what happens with them is more likely to be the result of management and business decisions that are taken

Implementing maximum sustainable yield based on the main target species in the fishery. There is very limited scientific knowledge about some of these, and given their relatively low overall value, it is doubtful whether the scientific community should invest their limited research resources to investigate them. These species, generally included in the datapoor category, have been managed on the basis of very simple considerations and often produced “paper fish.” Overall, these species were not considered a problem, since they never drew too much attention or efforts to manage them. Under the current regulatory scenario, however, their inclusion in the list of species to be subject to the landing obligation as of 2019, introduces a new factor: they can contribute to aggravate the choke species effect without their management being necessary to manage the target species in fishery. In this context, it is opportune to ask the question of what is the added value of having such species in the management system. Should they continue being managed by the CFP? Two cases are worth looking at: dab and flounder in the North Sea and boarfish in western waters. Dab and flounder in the North Sea These are secondary species in the beam-trawl flatfish fishery. The reason why they were included in the TAC and quota system was to prevent the development of a fishery by Spanish vessels in the North Sea, upon the Spanish accession in 1986. Upon accession, Spain did not obtain quotas of regulated species in this area, where it had no track record of fishing. But theoretically Spain could have developed a fishery entirely based on non-regulated species in these waters. For this reason, certain secondary stocks, hitherto non-regulated, were subject to TACs since 1985. It is to be noted that the likelihood of Spain developing such a fishery for non-regulated species alone was extremely low. The annual TACs for these species is practically meaningless because there is no evaluation of these stocks, and the fishery where they are caught is governed by the sole and plaice. However, when it comes to the landing obligation,

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the two species will have to be retained on board, and could become choke species. In fact, the Commission has already taken the initiative of asking ICES what would be the effect of removing these stocks from the management system under the CFP. The ICES report concluded that: ICES advises that the risk of having no catch limits for the dab and flounder stocks is currently considered to be low and not inconsistent with the objectives of the Common Fisheries Policy (CFP). The advice is valid as long as dab and flounder remain largely by-catch species, with the main fleets catching dab and flounder continuing to fish the target species (plaice and sole) sustainably within the FMSY ranges provided by ICES.

The message is very clear: the inclusion of dab and flounder in the annual TAC and quota regulation is not really necessary. This certainly constitutes a precedent of a type of analysis that could well be extended to other stocks and areas. Boarfish The boarfish represents a very different case. This small fish (Capros aper) started to be exploited by Irish fishermen at the beginning of the 2000s, and by 2006 had reached significant levels (Stange 2016). As the fishery (used for fish meal) expanded, a TAC was established for the first time in 2011 (EU 2011). At the time, the idea was to ensure adequate management of the fishery – and to “fix” relative stability on it by the initiators of the fishery. However, the by-catches of this species in fisheries targeting other stocks were not considered. Following the adoption of the landing obligation, concerns that this species would “choke” for other fisheries arose, and a number of fishing interests in Europe have questioned the wisdom of having a TAC on this stock. This case is much less clear-cut than the previous one, at least for two reasons: • This stock is subject to a directed fishery by some Member States, it is not simply a bycatch. Thus, the need for management, as the stock is not indirectly managed through the management of the main target species

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in the fishery, as in the case of dab and flounder. • The relative stability for this stock is very unbalanced, so the removal of the TAC would have a very different meaning for different Member States. Other stocks? The discard ban provides a good opportunity to revise the list of species subject to TACs and quotas, for the purpose of ensuring that those regulated are those that determine the behavior of the fleets, while ensuring that no unnecessary complexity or burden is imposed on either the industry, the scientific community or fisheries managers. A recent ICES report (ICES 2018), requested by the European Commission, has concluded that removing the EU TACs for the following stocks would generate a low risk of stocks being exploited unsustainably. This report does not refer to the landing obligation, but only to the cost/efficiency of continuing adopting single-stock TACs for them: • Plaice in ICES Division VII.a • Plaice in ICES divisions VII.f and VII.g • Tusk (Brosme brosme) in ICES Division III.a and Subarea IV • Plaice in ICES Subdivision III.a.21 • Lemon sole (Microstomus kitt) in ICES Division III.a, Subarea IV, and Division VII.d • Cod in ICES Division V.b • Haddock in ICES Division V.b. This exercise, however, cannot be done simply on the basis of an evaluation of the added value of the TAC from the point of view of management: it also has to take account of whether the possible removal of the TAC would have an effect in altering relative stability. This is yet another example of how the distributional questions in the CFP often stand in the way of a possible rationalization of the management, and shows the increasing contradiction of a very integrated EU policy that still relies on a fixed, rigid distribution of rights among Member States, something that has been addressed in other policies, but that has always been taboo in the CFP.

The case of deep-sea stocks The above considerations have already resulted in the elimination of several TACs in the specific case of the deep-sea stocks, regulated since 2004 through biannual TACs. The last regulation on these stocks (EU 2018d) eliminated certain TACs existing in the previous one (EU 2016b): for example no TAC for black scabbardfish in ICES subareas 1–4 (North Sea and Skagerrak) was set due to the low quota uptake and due to the fact that no targeted fisheries were taking place, and no TACs for roundnose grenadier in ICES subareas 1, 2 and 4 (North Sea) and greater forkbeard in ICES subareas 1–10, 12, and 14 were set, on the basis of scientific advice. ICES advice establishes that removing the TACs would generate no or a low risk of unsustainable exploitation. These examples clearly show that the list of stocks should not be considered fixed forever, but revised regularly on the basis of relevance of such management and its cost effectiveness.

Problem stocks The management system also has to handle the case of the so-called problem stocks. In effect, while a number of stocks respond positively to management (though with variable response times) there are certain stocks that do not seem to respond to management efforts, or respond only in a limited way. In these cases, the lack of response to management (notably to a reduction of fishing mortality) casts doubts on the efficiency of the policy itself, and often justifies the call for more dramatic action, that in turn poses a serious problem for the industry concerned. How to handle these cases? Steadman et al. (2014) have studied 10 stocks in EU waters that, after numerous attempts to improve management, are still considered outside safe biological limits. Among other considerations, the difficulty in bringing these stocks to Fmsy by 2020 without unacceptable economic hardship or without seriously affecting fisheries for healthier stocks illustrates why these can be considered problem stocks. These stocks raise fundamental issues of fishery management: why are they so difficult to

Implementing maximum sustainable yield rebuild? Are there ecological reasons, outside our control, that prevent rebuilding? What sacrifices would be necessary to recover them if possible? Are such sacrifices acceptable and compatible with other policy objectives? Many more questions than answers, but another fundamental challenge for management. Some of the difficulties in rebuilding these stocks may come from the mixed species nature of the fisheries where they are caught, thus preventing the intended reduction of fishing mortality required on a single-stock basis. But part of the problem too may come from ecological factors: in some cases, positive recoveries have been associated to favorable climatic conditions and subsequent strong recruitments while in other cases such conditions are not present and recruitments have remained low (Zimmermann and Yamazaki 2017). In the case of North Atlantic cod, it appears that the depletion of one stock can trigger trophic shifts that may prevent rebuilding through increased predation and competition (Frank et al. 2005). These factors raise an uncomfortable question: in a policy defined by the need to reach the same objective for all individual stocks, what is the price of introducing strong measures and sacrifices to recover a stock to pre-determined levels against ecological factors in a complex ecosystem and a mixed fishery? Is this price worth paying in economic, social and even ecological terms? This is a difficult question because it is always difficult to determine the ultimate cause of the depletion of a stock. But the number of cases in which a stock has collapsed at least partially for natural causes raises the issue of how far do we need to go in sacrificing other fisheries to recover one that, whatever our efforts, simply may not come back for a long time, at least at the levels traditionally known. There is no straightforward answer to this, since the chances of recovery of such species may be extremely elusive, but this kind of scenario calls for a policy that can handle uncertainty with much more flexibility than is the case under the current CFP. We will refer to this question in Chapters 9 and 14.

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CHAPTER 4

The challenge of mixed fisheries

Mixed fisheries in the new CFP The special challenges posed by the management of mixed fisheries are well-recognized in the new Common Fisheries Policy (CFP) (see below) as well as in important international instruments of fisheries managements, such as FAO’s Code of Conduct for Responsible Fisheries (FAO 1995). The difficulties associated with mixed fisheries were identified very early in the process of development of fishery assessment methods. As early as the late 1950s, Ricker (1958) already indicated that when two or more populations of a species, characterized by different reproduction potentials, are fished in common, total potential catch is less than when each can be fished separately at its optimum level. Paulik et al. (1967) already presented solutions to the problem of finding the common rate of exploitation that maximizes total sustained yield from a mixture of stocks, and Hilborn (1976) offered in the 1970s a new methodology to calculate optimal harvest rates for mixed stocks. There has always been some scientific basis for the idea that mixed stocks cannot simply be managed through the sum of management systems for individual stocks. Yet, fisheries management, in the EU and elsewhere, has continued to this day fundamentally based on single-stock considerations. This leaves the question open as to whether the new CFP that is still based on the achievement of single-stock

management objectives, can really deliver such objectives, and at what cost.

Can MSY be achieved for all stocks in mixed fisheries? The notion of maximum sustainable yield (MSY) was based on the productivity of individual species, ignoring interactions within the fishing process, and aiming to maximize the weight or value of landings under assumptions of constant vital rates (Rindorf et al. 2017). Over time, it has become obvious that assumptions on constancy and independence in vital processes are rarely fulfilled, so a dynamic approach is necessary if interactions among species and with their environment are to be considered (Fogarty 2014). If the linkages in fisheries systems are ignored, unintended and perverse consequences may occur (Degnbol and MacCay 2006). As we saw in Chapter 2 individual MSY objectives are very difficult to achieve for all stocks in mixed fisheries, at least without a high management cost and considerable foregone yields (Sissenwine et al. 2014). In a multispecies context, there is no single combination of fishing mortalities that provides for MSY for all species simultaneously (Gaichas et al. 2017). Other authors have indicated that single-species total allowable catch (TACs) are not consistent with each other when the stocks are caught by the same fleets (Baudron et al. 2010). Zimmermann and Yamazaki (2017) point to the need to consider inter-stock relationships:

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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Chapter 4 Not accounting for such inter-stock dependence hinders or even reverses the conservation and economic benefits of stock rebuilding and increases the risks that rebuilding strategies fail to achieve their management objectives. . . . this underlines that constant, single-species management targets such as precautionary spawning biomass or MSY biomass may be unattainable for all stocks in the ecosystem.

This strongly contrasts with the very strict interpretation of the basic regulation of the CFP as regards the possibility of having all stocks above Bmsy levels.

Mixed fisheries and choke species The term “choke species” has been defined by International Council for the Exploration of the Sea (ICES) as follows:1 A choke species is a term used to describe a species with a low quota that can cause a vessel to stop fishing even if they still have quota for other species.

The problem of choke species exists, one way or another, in all fisheries managed through single-stock catch limitations combined with a policy or restrictions on discarding. But even without them, choke species effects may also occur on economic grounds: even if certain fisheries for secondary species can be conducted when the quotas for the main ones are exhausted, the economic interest of such practice may not be obvious. The scale and extent of this phenomenon depends on a number of factors, including quota availability, the spatial overlap of target and by-catch species, and the ability of businesses to avoid catch-limiting species while maintaining economic viability (through temporal or spatial avoidance, gear selectivity, etc.). The effects of choke species can be direct (early closures of a fishery even when quotas of certain species are still available), or indirect economic ones, when the spatial overlap of fish stocks with respect to target and by-catch species may determine where effort is displaced and hence 1 www.ices.dk/news-and-events/Blogs/

Inotherwords/Lists/Posts/Post.aspx?ID=13/

whether steaming costs may increase and catch rates decrease (Simons et al. 2015). The choke species effect has been reported for a number of fisheries around the world (Kraak et al. 2015), associated with single-stock TACs with no-discard policies. In the specific case of the CFP, the choke species phenomenon is the result of two combined factors: • Different TAC levels. The application of individual objectives for individual stocks combined with a ban on discards. In these cases, when the TAC of the weakest stock is reached, it is no longer possible to continue fishing for other (healthier) stocks without discarding the former. The fishery must then stop. • The allocation of TACs in national quotas. The fact that, in the CFP, the TACs are allocated among Member States in national quotas, and these allocations are extremely different for different stocks. As a result, it is possible that two species with no choke effect between them in terms of total TAC, may be choke for individual Member States if their quota allocation is very unbalanced: one stock may be choke for one Member State and a different stock may be choke for another Member State. In this chapter we will examine the question from the point of view of the TAC levels: What can be the effect of different TAC levels combined with the discard ban in mixed fisheries? The other source of choke species, the fixed allocation of the different stocks among Member States under relative stability is looked at in Chapter 6. The consequences of the choke species effect can be that healthy stocks are substantially under-exploited. This may be acceptable in certain political systems, but not in others. The evidence of this emerging problem has alerted the European fishing industry that is deploying its best efforts to find practical solutions.

Choke species: some experience outside the EU The experience of the US on choke species is very illustrative, as we saw in Chapter 2.

The challenge of mixed fisheries True, this phenomenon may not be due only to choke species effects. Other factors such as low economic interest of many of the stocks under the management policy may be at the origin of this phenomenon. And so far, relatively little is known about the different causes of the low quota consumption. However, expert advice points at the management of weak stocks to avoid by-catch as a strong reason why fish are left in the sea (Dave Fluharty, personal communication). In the US, where the policy establishes clear objectives by individual stocks, like in the CFP, there is on-going debate on the need to introduce, through the next reauthorization of the Magnuson-Stevens Act, special provisions for mixed fisheries, since “it is a rare fisheries scientist who would contend that all stocks in a multispecies complex are able to be demonstrably abundant simultaneously” (Frulla and Hawkins 2017). This evidence has led the US Congress in its on-going proposal to reauthorize the Magnuson-Stevens Act (Bill H.R. 200, July 2018) to introduce changes that would add exceptions to stock rebuilding requirements when “one or more components of a mixed-stock fishery is depleted but cannot be rebuilt within the specified time without significant economic harm to the fishery or without causing another component to approach a depleted status.”2 What this means in catch share fisheries or in fisheries with prohibited species by-catch (e.g., Pacific halibut and herring) the by-catch is limiting on the quota fisheries. There are established constituencies to whom these by-catch species are allocated. Further, if one species in a fishing complex is determined to be overfished the rebuilding plan limits by-catch by others. See under “How much can we sacrifice to weak stocks?” below. This is a clear example of the recognition that mixed fisheries pose serious problems in the way of the rebuilding of individual stocks in the mix, and how policy has to introduce flexibility to deal with these cases.

2 https://fas.org/sgp/crs/misc/IF10267.pdf/

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Choke species under the new CFP The importance of the problem of choke species was anticipated by the co-legislators in the CFP reform of 2013. Although the regulation foresees the increase in selectivity as the primary solution, it also recognizes that there will be a need to provide advice on the appropriate fishing mortality levels (EU 2013, recital 8): Management decisions relating to maximum sustainable yield in mixed fisheries should take into account the difficulty of fishing all stocks in a mixed fishery at maximum sustainable yield at the same time, in particular where scientific advice indicates that it is very difficult to avoid the phenomenon of “choke species” by increasing the selectivity of the fishing gears used. Appropriate scientific bodies should be requested to provide advice on the appropriate fishing mortality levels in such circumstances (emphasis added).

The problem is that such requirements must be applied in the legal context of Article 2.2, which lays down MSY as an objective “for all stocks.” If we take these elements literally, then it would in principle seem that the “appropriate fishing mortality levels” would in many cases have to be lower than Fmsy , so the policy may lead to the kind of under-exploitation observed in some mixed fisheries in the US. Although it is still relatively early to fully understand the effects of choke species (since the landing obligation is still in its phase-in period) the scientific community is already evaluating the potential effects. For example, it has been predicted that in the North Sea demersal mixed fishery, the full implementation of the discard ban would result in the closure of the fishery when approximately half the available quotas are still uncaught, producing a proportional reduction in revenue as compared to the situation prior to the landing obligation (ICES 2016a). This is shown in Figure 4.1, drawn from Ulrich et al. (2017) concerning the mixed fishery for demersal stocks in the North Sea. The left-hand side box represents the scenario of full consumption of the haddock TAC: all other TACs are overshot, leading to significant discards (stripped part of the columns) in the other species. Upon implementation of

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Figure 4.1 North Sea mixed-fisheries projections for 2016 following standard display as in ICES (2015). Source:

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the landing obligation, this is no longer possible. The second box from the left represents the scenario under which none of the TACs are exceeded and no discards take place. This would correspond to the full, effective implementation of the new policy. It is apparent that only the TAC for sole would be fully harvested, while the remaining TACs would be significantly under harvested. This illustrates the problem very well: combining MSY-based TACs for individual stocks under the landing obligation in mixed fisheries can lead to significant under-exploitation of a number of stocks in the fishery. The choke species problem, in addition, can actually be aggravated by the improvement of certain stocks. Such is the case for hake in the North Sea, where higher abundances of this stock contrast with low quota shares, thus contributing to turn the healthy hake stock into a problematic choke species. This calls for a more holistic and responsive approach to the management of the multispecies fishery. This assumes a full implementation of the landing obligation, without the effects of the flexibility mechanisms foreseen in Article 15 of Regulation 1380/2013. That means that only

the future practice, including the possible partial or full application of these flexibility mechanisms, and the possible perverse incentives to discard illegally will determine the real extent of the problem of choke species. The European fishing industry has frequently drawn attention to the negative effects of the choke species effect.3,4 Its potential consequences are clear: failure to resolve the problem would result in lower profitability levels for the industry, even serious economic difficulties, and it would potentially contribute to under-exploitation of healthy resources, thus failing to deliver on some of the objectives of Article 39 TFEU. The economic effects of choke species are potentially considerable. In a study conducted on two stocks (saithe and cod) caught by bottom trawling in the North Sea, Mortensen et al. (2018) found that cod would choke the fishery

3 www.seafish.org/about-seafish/blog/2014/1/20/

addressing-the-issue-of-choke-species-in-a-mixedfishery/ 4 www.webmeets.com/files/papers/EAERE/2016/

904/Choke%20species%20and%20quota%20prices .pdf/

The challenge of mixed fisheries early in the absence of quota balancing options, resulting in an 87% reduction in revenue, while saithe could choke the fishery later, resulting in a 43% reduction in revenue.

Alternative management approaches for mixed fisheries The “choke species” problem is a consequence of the single-stock management policy. The difficulty in resolving the problem favors the concept of “multispecies” management, where in theory the management would focus more on the relationship among different stocks, their effects on single-stock objectives and eventually on fishery-related objectives rather than stockrelated objectives.

Multispecies approaches Multispecies approaches to manage mixed fisheries would imply lower emphasis on single stock objectives and more focus on the overall maximum yield of a group of species taken in the same fishery. By changing the focus from individual stocks to groups of associated stocks the management gets closer to the management of the surplus of the ecosystem, and from that perspective it can be considered as a step toward the ecosystem approach to fisheries. Of course, the interactions among species also have a significant economic dimension, as different species have different market prices and levels of interest for fishermen. This implies that multispecies approaches require the consideration of trade-offs between biological yields and economic benefits. The importance of incorporating multispecies effects in the management of fish stocks has been recognized by many authors (Kempf et al. 2016; Zimmermann and Yamazaki 2017). In fact, Anderson (1975) or Wilson (1982) among others have recognized the problem in earlier contributions. In recent times, the importance of these inter-stock relationships is considered a key aspect of the ecosystem approach to fisheries (Garcia and Cochrane 2005; Morishita 2008). However, these relationships are

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complex, difficult to model and always datahungry. Thus, Skern-Mauritzen et al. (2016) estimate that only 2% of the world’s fish stocks are managed including these multispecies interactions. The idea of multispecies management is indeed recognized as an objective in the context of Regulation 1380/2013. However, it is proving very difficult to implement in practice. There are a number of reasons for this, and the first one is the absence of a sound, reliable scientific basis for it. The term “multispecies management” can have more than one interpretation. Furthermore, scientists have proposed several approaches for managing fisheries taking into account multispecies considerations. Following Zimmermann and Yamazaki (2017), two modeling approaches can be identified: • Analytical, multi-stock models and • Models that encompass entire food web effects, such as competition and predator-prey relationships. Many authors have proposed different models for multispecies fisheries, some of them a long time ago (May et al. 1979) and more recently, attempts to model species interactions include Hollowed et al. (2000) and Plagányi et al. (2014) among others. Some of these models also include consideration of socio-economic factors (Ratz and Lloret 2016). The question is then: can this type of modeling approach inform the CFP in the near future, or is it better to try to advance individual stock objectives based on traditional approaches?

What potential for multispecies models? In the early 1990s the public concern that industrial fisheries were “robbing the food” of the target species in the North Sea was a major motivator behind the development of multispecies models, beginning in the 1970s with the seminal work by Andersen and Ursin (1977). At present, ICES run multispecies virtual population analysis (VPA) from time to time and the results are used to update the natural mortality values used in the single-species assessments

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used for the routine ICES advice. That means that even the single-species advice from ICES is to some extent informed by multispecies considerations. The new CFP will require a new type of scientific basis, focused on multispecies approaches. In some cases, this advice is already emerging. For example, multispecies considerations are already taken into account by ICES in the context of the best-evaluated European sea basin: the North Sea. Already in 2013, ICES5 concluded, inter alia that: • There is no single MSY solution in a multispecies context, and policy choices will have to be made. • Yield of virtually all species is strongly affected by the abundance of cod and saithe, which are the main predator fish species. Changing management target fishing mortality (target F) for cod and saithe therefore influences the yield of other stocks more than the management targets for these other stocks. • Due to predation, it is unlikely that all stocks can be maintained above precautionary single-species biomass reference points simultaneously. • Target fishing mortalities leading to close-tomaximum average yield (Fmsy ) in a multispecies context are in general higher than the agreed single-species Fmsy values. • Due to a successful reduction in fishing mortality for many stocks, natural mortality is becoming the dominant source of mortality in the North Sea. This means that the stock dynamics are increasingly more influenced by natural processes than by fisheries. The implications of the above report are extraordinary: a policy based on single-stock parameters and objectives in a multispecies context clearly leads to unreasonable expectations, derived from the difficulties of achieving these individual objectives all at once. And, as F levels are reduced, the fisheries become more

5 www.ices.dk/sites/pub/Publication%20Reports/

Advice/2013/2013/mult-NS.pdf/

dependent upon natural effects that are not possible to manage.

Pretty good yield Introduction As we saw above, the incorporation of MSY targets in the CFP has been a very important step forward in providing for clear objectives for the management of fisheries in Europe. However, it can be argued that the optimum biological yield may not be the only legitimate objective of fisheries management. We have argued above that the objectives of Article 39 TFEU can be best met in “an area around the notion of MSY.” That means that MSY may not necessarily be seen as a single figure but rather as an area within which other elements may also legitimately be taken into consideration. This idea has given rise to the introduction of the notion of pretty good yield (PGY) by Alec McCall of the US National Marine Fisheries service, defined as the 80% of the optimum yield (Hilborn 2010). This notion reflects the fact that most fisheries management systems have multiple objectives, so that rather than a point, a broad range of harvest policies can provide good yield while also producing other desired outputs, be they biological and/or economic. Pretty good multispecies yield More recently, the notion of PGY has evolved in connection with mixed fisheries in Europe, as pretty good multispecies yield (PGMY) also as a possible solution to the “choke species” problem. The obvious use of the notion of pretty good yield is its use in a scenario of mixed fisheries where individual stock objectives are difficult to achieve all at once. Then the notion is called pretty good multispecies yield (Rindorf et al. 2016). In this context, the notion of PGMY could be considered as a proxy of MSY that also contributes to fully implement the landing obligation by reducing substantially the “choke species” effect. PGMY is defined by Rindorf et al. (2017) as: achieving at least a specified percentage of the MSY while allowing scope for achieving additional objectives.

The challenge of mixed fisheries Other authors (Kempf et al. 2016) indicate, for the North Sea, that the current approach of treating each stock separately and ignoring trade-offs may result in unacceptable ecosystem, economic or social effects, leading to disappointment by stakeholders, and that to treat Fmsy no longer as a point estimate but rather as a pretty good yield within sustainable ranges was seen as a promising way forward to avoid unacceptable outcomes when trying to fish all stocks simultaneously at Fmsy levels. Although the notion is not specifically referred to, the Commission has already adopted this approach in the context of the Baltic and the North Sea management plans, with the introduction of fishing mortality ranges. These correspond to an implementation of the PGMY, in the sense that some stocks can, under very specific circumstances, be fished at mortalities higher than the individual Fmsy , but always within a limit that is considered precautionary. This notion is extremely useful in that it provides managers with flexibility to manage trade-offs in multispecies mixed fisheries. It is clear that high long-term yields and lower risks of stock collapse are achieved when all individual stocks are managed at fishing mortalities lower than Fmsy , that is, when they are managed within the lower part of the fishing mortality ranges (Thorpe et al. 2017). The notion of pretty good yield makes environmental non-governmental organizations (NGOs) nervous, notably in the sense that it opens the door to the management of certain stocks at levels higher than the individual Fmsy value. One possible way to ensure that the flexibility provided for by the pretty good yield concept applied to individual stocks is to combine it with some safeguards, as we will see below. How would PGMY solve the choke species problem? PGY would not resolve in itself the problem of choke species in all fisheries, but in a number of them it would certainly reduce the effects of the phenomenon. In particular, it would contribute to solve the choke species effect at TAC level.

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By providing for a range of fishing mortality options for individual stocks in mixed fisheries, managers can establish TAC levels corresponding to the fishing mortalities per stock that will maximize overall yields, or minimize the amount of foregone yields due to the exhaustion at an early stage of the TACs for the less productive stock in the mixed fishery. Figure 4.2 shows the fishing mortality ranges for the main demersal species in the North Sea, as presented by Ulrich et al. (2017). The figure shows the central Fmsy point, the ranges and the optimum F levels to maximize MSY in the context of the mixed fishery. It can be observed that the optimum F corresponds to different parts of the F range for different stocks. The different combinations of F values within the ranges can be modeled in terms of avoidance of choke species effects, but can also be evaluated in terms of economic yield. This allows for annual decisions on TAC levels that, while respecting the overall objective of MSY, provide for flexibility to deliver other policy objectives just as well.

The Fcube model Another interesting development is that of the so-called Fcube model. Fcube stands for the 3 Fs: “Fleet and Fisheries Forecast.” This model is based on the idea, as we explained above, that applying single-species assessment and quotas in multispecies fisheries can lead to overfishing or quota underutilization, because advice can be conflicting when different stocks are caught within the same fishery. The Fcube model offers different scenarios of fishing effort and calculates the level of overfishing and underfishing of each stock in a mixed fishery as compared with the catch levels of the stocks based on single-stock comparisons. Scenarios of different levels of effort and corresponding multispecies catches have been developed for the North Sea by Ulrich et al. (2011) and for the Iberian Peninsula (Iriondo et al. 2010). As we will see in Chapter 5, this type of model also has considerable potential for multispecies management in the Mediterranean Sea.

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The notion of Fcube is also relatively adaptable to bio-economic modeling: the FcubEcon management framework for effort allocation between fleets and fisheries is based on the economic optimization of a fishery’s earnings while complying with stock-preservation criteria (Hoff et al. 2010). The Fcube model is very useful for mixed fisheries where multispecies objectives would be allowed. On the contrary, in a context where the individual Fmsy objectives have to be applied to all stocks, the effort levels would those necessary to ensure that no single stock is exploited at an F > Fmsy , thus producing foregone yields.

Multi-stock reference points This kind of approach is based on developing an algorithm that characterizes bio-economic reference points that optimize economic and biological benefits. When tested in the mixed fishery for hake in northern waters, including the interaction with two other associated species (anglerfish and megrim), the model predicts that when TAC levels are established under this scheme, management performs better in economic and biological terms than that corresponding to single-stock reference points for the three species separately (Da Rocha et al. 2012).

SOL

Figure 4.2 Fishing mortality ranges for the main demersal stocks in the North Sea. Source: Ulrich et al. (2017).

This concept has also been explored also in the Iberian fisheries by Garcia et al. (2017), where TAC advice was generated under the traditional single stock approach and compared with such advice based on multi-stock reference points using a bio-economic optimization model. The multi-stock scenarios in principle allow for a better utilization of combined TACs. The model allows for reference points to be all considered precautionary in the sense of ICES: that the probability of being below Blim was less than 5%. The authors also indicate that the model can be adapted to be used within the limits imposed by the fishing mortality ranges that have been introduced in the Baltic plan and are likely to be used in subsequent ones. This type of model can allow the development of reference points for stocks associated in a given fishery that will be more consistent among them, that will correspond to a more efficient use of available fishing opportunities (thus reducing choke species effects), and where the condition that all TACs be precautionary can be imposed.

Managing stock aggregates? Another possible approach to handle mixed fisheries is to define the notion of MSY not for an individual stock, but for an assembly of

The challenge of mixed fisheries closely related stocks. This would allow the establishment of objectives and measures for the management of the aggregate as a whole, allowing for changes in the result of individual stocks within the aggregate. Edwards et al. (2004) describe this approach as “portfolio management” whereby management combines fish stocks that are joined by ecology (e.g. predation, competition) and unspecialized fishing techniques (e.g. mixed species trawls) into a portfolio which balances expected aggregate returns against the risks associated with single-stock uncertainties. Managing stocks under this approach can significantly increase benefits for society relative to single-species approaches. A very interesting article (Fogarty et al. 2012) describes the development of surplus production models for 12 demersal fish species in the Gulf of Maine (NE USA) at both single-species and aggregate levels, as a possible way to manage species assemblages rather than individual stocks. Interestingly, the equilibrium yield (MSY) and biomass at MSY (Bmsy ) levels for the summed-up single-species production model reference points exceeded the aggregate model results by 28.0 and 27.5% respectively. Biological interactions such as competition and predation are potential reasons for the difference. Not accounting for biological interactions may result in overly optimistic predictions of long-term yields and unrealistically high estimates of Bmsy . This begs the question about flexibility associated with fishing some individual stocks at >Fmsy . These results are extremely interesting, in various aspects: • They confirm that setting reference points for single stocks without ecological considerations may produce overestimations of Bmsy , which in turn implies that the aspirational objective of having all stocks at biomass levels “above Bmsy ” may simply not be achievable at all. • Managing aggregates actually produces lower estimates of sustainable yield. This is not surprising but raises serious management implications.

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That means that concerns that not focusing on the weakest stock may lead to its overexploitation in the mix, are to be compounded with a substantially lower level of overall fishing effort corresponding to the total level of catches of the aggregate. This kind of approach, however, is not easy to implement, notably due to the difficulty of putting together all the scientific information necessary to develop such complex ecological models (Hilborn 2011). But this underscores the interest on relatively simple models where species relationships are implicit rather than explicit. The advantages of these models, even if simplified, are that system-level properties (including total biomass, total catches, aggregate size composition) tend to be much more stable for the species aggregate than for any of its individual species (Fogarty and Murawski 1998; Auster and Link 2009). These characteristics appear to reflect compensatory processes related to a sequence of species replacements under the constraint of overall energy limitations of the ecosystem (Fogarty et al. 2012).

How much can we sacrifice weak stocks? All the above options have an obvious downside: if they provide some kind of “averaging out” of fishing mortality among associated stocks as a solution to the choke species problems, that implies that certain stocks would be exploited at higher F levels than those corresponding to the individual Fmsy values. Put it another way: this would mean accepting a certain level of over-exploitation of a certain number of stocks. The question would then be: how far can we go with this? How much can we over-exploit certain individual stocks in order to minimize choke species effects and maximize the sustainable production of seafood? The answer is not straightforward, particularly from an ecological point of view. While the idea of fishing down a weak stock can have little economic effect, if and when such stock has a low economic value, the question of the evaluation of the ecological value of the

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over-exploitation of an individual stock is much less clear. Actually, if we move toward the concept of ecosystem-based management, the emphasis on weak stocks could be compounded by the overall status of the ecosystem. Marine ecosystems can be very stable even if their individual species fluctuate to a substantial degree. This is shown in Figure 4.3, drawn from the ICES ecosystem overview of the greater North Sea ecoregion (ICES 2016a): the ratios F/Fmsy and spawning stock biomass (SSB)/MSY Btrigger for different groups of stocks fluctuate considerably over time. Yet, the averages for all stocks together are much more stable. This simple image suggests that, rather than focusing on individual stocks, whose abundance is in any case naturally fluctuating, fisheries management could focus more on the overall surplus that the ecosystem can produce, which is in fact remarkably stable.

An ecological cap on TACs? The idea of the multispecies pretty good yield could be combined with a safety net applicable to the whole fishery: a limitation of the overall catch of all stocks combined. This would correspond to a kind of ecological cap to the catches

of all stocks combined in a mixed fishery, to compensate the higher risk taken for some individual stocks. This measure can indeed be complementary to the individual TACs, and in a longer perspective could be considered a fundamental element in a new kind of management system for mixed fisheries. In the Bering Sea/Aleutian groundfish fishery in Alaska, management established an ecosystem cap for the annual TACs of groundfish for this region by requiring that the optimum yield range must fall between 1.4 and 2 million tonnes. This has limited the sum of TACs for all species concerned to 2 million tons, a lower figure than would result from adding the individual TACs of the same species when considering single-stock considerations, which some years amounted to 2.8 million tons (Witherell et al. 2000). This implies that certain stocks, particularly flatfish, have been exploited well below sustainable levels (Witherell 1995). Interestingly, the origin of the measure was initially not related to ecosystem considerations, but to limit foreign fishing at a time when the US fishing capacity was lower than it is today. This long-term experience is very illustrative of what can be an alternative approach to the low-risk strategies for individual stocks: to

Greater North Sea 5 F/FMSY

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Figure 4.3 Evolution over time of fishing mortality relative to Fmsy and biomass relative to MSY Btrigger for

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The challenge of mixed fisheries consider a wide range of options for individual stocks (with higher risk for some of them) but in the framework of an overall low-risk strategy for the whole fishery and its ecosystem. This TAC cap concept has been further developed by other authors into a step-by-step multispecies approach based also on the idea of an overall cap on all catches combined. This approach consists of four steps (Gaichas et al. 2017): • Limit total removals from the ecosystem • Allocate the total removals limit across among aggregate species groups • Maintain individual species above minimum stock size thresholds • Optimize the species mix (within aggregates) based on bio-economic portfolio analysis. The above proposal (that the authors themselves present as very preliminary) deserves attention in that it provides internal flexibility (among stocks) within an overall limit established as an ecological cap. This would allow taking a higher risk for some individual stocks but in the context of an overall low ecological risk. It is placing the evaluation of risk at the level of aggregate species more than at the level of individual stocks. Although the concept of higher risk is not part of the current thinking in Alaska, the theoretical possibility is there to consider in other contexts. Of course, such a strategy would need to be developed in much more in detail, particularly its second step, which may not necessarily be neutral under relative stability in the EU context. In addition, the level of risk of the overall level of the total removals would need to be carefully compounded with step 3 on the level of protection of individual stocks. In addition, the above kind of management requires a very sophisticated level of discussion with stakeholders and a very adaptive system to address the numerous, different and changing scenarios and their respective trade-offs (Jennings et al. 2016). This also includes the treatment of the individual target for stock management (MSY) as a limit rather than as a target, in what has been described as a “conscious under-exploitation

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of marine resources” (Mace 1999). Can this experience be translated to the CFP?

Trophic models Trophic models are a consequence of the application of the ecosystem approach to fisheries management, and we will refer to this in Chapter 8. However, it is important also to refer to this type of model here. In recent decades, studies on how fisheries and marine food webs interact have been developed. However, by and large fisheries management continues to be based on singlespecies considerations. Trophic models have been demonstrated to be difficult and costly to develop. They are data hungry and require a substantial level of knowledge regarding interactions among different species in the fishery (and their ecosystem). This makes progress slow and difficult. The Commission tried to use the opportunity of the new CFP to produce the first multispecies model for the Baltic Sea, including trophic relationships. The (theoretically) simple food chains of this sea were considered an ideal place to start such models. But the task proved too complex and in the end the current management plan for the Baltic Sea (EU 2016a) is still based on individual stock parameters. An ultimate use of trophic models, such as those developed by Gascuel et al. (2011) is to provide a theoretical basis to explain complex patterns, such as cascading effects, maximum sustainable ecosystem yield and fishing down the food web. The value of these models in the CFP has to be put in context. While it is difficult to see such models entirely replacing the current single-stock management, they can provide as a complementary tool that may be extremely useful to management: • They can help understand the effects of fisheries management on the ecosystem, and to better understand the role of fisheries management in achieving the “good environmental status” of the Marine strategy Framework Directive (see Chapter 8). • They can serve to establish a general cap on the overall use of the ecosystem, thus

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allowing greater flexibility among individual species targets, provided such cap is respected. • They can allow better understanding of the achievability of the aspirational objective of maintaining all stocks above Bmsy . Tropho-dynamic models have been developed in recent years and can in many cases already provide a sound basis for management. However, fisheries management still relies largely on individual stock decisions, with little regard to species interactions. Among the reasons to explain this, the increased complexity of such models, the need to bring in more expertise and stakeholder input, is in most cases at odds with the management system’s strong inertia (Longo et al. 2015). An associated explanation is that the benefits of this kind of approach are generally only visible over relatively long periods, and the management system tends to favor quick solutions where the results of management become apparent as soon as possible (Daily et al. 2009). Overall, despite the growing scientific basis available for trophic models, their utilization is still extremely restricted. Many authors have analyzed the reasons for this and, according to Longo et al. (2015) the main ones are: • The lack of decision-support tools helping with the integration of ecological and social assessments of fisheries (see also Koen et al. 2013). • The need for a more effective institutional process to translate this interdisciplinary knowledge into action. In the specific case of the EU, the first problem should actually be resolved: the Scientific, Technical and Economics Committee for Fisheries (STECF) does have the capacity to integrate the different contributions from biological, economic, and social science. On the contrary, the institutional framework and relative stability (see below), does not favor such approach. The implementation of this approach would necessitate a change in paradigm in the way the CFP adopts its policy, as we will see in Chapter 9.

Multispecies models and trade-offs: is multispecies management compatible with relative stability? In addition to the many implications and trade-offs associated with application of multispecies models, issues associated with specific concerns arise in the EU because different levels of exploitation or under-exploitation, and their associated economic performances, would not necessarily be neutral under relative stability. Thus, different scenarios would affect Member States differently, so that any discussion on the overall merits of any given scenario would likely be hampered by allegations that such scenarios undermine relative stability. This could even be more delicate in the case of trophic models. If these models are developed, this would lead inevitably to decisions on whether the management should “manipulate” the trophic levels: would it be advisable, for example, to under-exploit prey species in the expectation that this would imply more food for predators and higher yields for these? Or the other way around? During the bilateral negotiation between the EU and the Russian Federation to establish the new bilateral arrangement in the Baltic Sea following the EU enlargement of 2004, Russia insisted in the inclusion of Western Baltic cod in the list of stocks to be managed jointly, even though this stock occurs entirely in EU waters. The reason? Cod feeds on sprat, the main interest for Russia. By having a say on the management of cod, they could favor higher exploitation rates of this stock, resulting theoretically in lower cod abundance, lower predation on sprat and higher abundance of the latter (Penas Lado 2016). Within the EU, a case in hand can be the balance between cod and one of its principal prey items, sandeel, in the North Sea. If trophic considerations are included, one could for example, favor a higher rate of exploitation of the cod (predator) and a relatively lower one for sandeel (prey), on the basis of the higher economic value of the former. However, while the fishing rights for cod in this area are mainly in the hands of the UK (47% of the quota) the

The challenge of mixed fisheries TAC for sandeel is mainly allocated to Denmark (over 90%). That implies that any strategy to favor economic factors would benefit the UK more than Denmark, something that the latter would no doubt consider a de facto breach of relative stability. All these difficulties are associated with the traditional definition, entirely dependent upon quotas for individual stocks. These difficulties could be overcome if relative stability were to be defined as a more general notion of allocating Member States a fixed amount of the total biological and economic production from the European seas. This could remove the difficulty that single stock-based relative stability represents. In Chapter 14 we develop some ideas as to how this could be done.

Is multispecies management compatible with the objectives of the CFP? In principle, one may think that the different multispecies approaches referred to above are not compatible with the specific policy objectives of the CFP as laid down in Article 2.2 the new basic regulation 1380/2013 since these objectives clearly state that MSY must be reached for all stocks. That seems to indicate that there is little or no room for any solution that would depart from the achievement of Fmsy levels for each one of the individual stocks managed under the CFP. For example, the notion of PGMY referred to above, would seem in principle incompatible with the notion of MSY applicable to all stocks, enshrined in the basic regulation. Yet, as we have seen, different multispecies or ecological models are based on some degree of “averaging out” fishing mortality levels for the stocks associated in mixed fisheries. The question, however, is less clear-cut than it appears to be. In fact, the differences between the two notions are due to the consideration of MSY as a point value of fishing mortality without any flexibility. But the text of Article 2.2 does not say anywhere that MSY should be considered necessarily as a point value, as we explained above. If, for a number of reasons, the notion of MSY is to be considered

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as associated to some level of flexibility, the difference between MSY and PGMY blurs considerably. What are, then, the elements of flexibility that can justify the interpretation of MSY not as a point value, but an “area around a point value”? Let’s look at some considerations: • In some cases, the yield curve of certain stocks is flat-top that is, the maximum yield does not correspond to a fixed F point but rather a range around it. • Importantly, the consideration of Fmsy as a range of F levels rather than a point value, as established by the Baltic Management Plan (EU 2016a) and the North Sea Management Plan (EU 2018) provides a precedent of interpreting MSY as a kind of PGMY. It is important to underline that this provision is not a derogation to the policy objectives set in Article 2.2 of the basic regulation 1380/2013; it is a proportionate way to implement them. • The need to ensure that the two main new objectives in the new CFP (MSY and the landing obligation) can be achieved simultaneously. We saw above (Figure 4.2) that in mixed fisheries the implementation of the MSY objective can lead to very significant levels of under-exploitation of TACs. If a very extreme implementation of MSY can prevent practical implementation of the landing obligation, then the implementation of the policy is not balanced. Both objectives must be achieved in parallel, and neither objective should become an obstacle to the other. • All the earlier considerations on Article 39 TFEU (see Chapter 2). Furthermore, Regulation 1380/2013 recognizes explicitly the problem of mixed fisheries, and allows for special considerations in this regard, in the context of multiannual management plans. Article 9(5) of this regulation reads: Multiannual plans may contain specific conservation objectives and measures based on the ecosystem approach in order to address the specific problems of mixed fisheries in relation to the achievement of the objectives set out in Article 2(2) for the mixture of stocks covered by the plan in cases where scientific advice indicates

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Chapter 4 that increases in selectivity cannot be achieved. Where necessary, the multiannual plan shall include specific alternative conservation measures, based on the ecosystem approach, for some of the stocks that it covers.

For these reasons, at least, it is not far-fetched to consider that Regulation 1380/2013 could indeed allow implementation of the PGMY or other multispecies approaches in mixed fisheries, as a way of ensuring that the notion of MSY contains the necessary flexibility to be what it was always conceived to achieve: the objectives of Article 39 TFEU.

Can associated species in mixed fisheries be dissociated? As we have seen, mixed fisheries are a problem because different species are associated together in the catch. But is this association permanent? Is it inevitable? Another solution to the problem of choke species is the possibility of dissociating species that normally appear associated in the catch. It is true that the notion of associated species is not an absolute one. On the contrary, stocks that appear “associated” can show very different degrees of association when we look at a more detailed breakdown of this association in terms of areas, gear, and time of the year: • Some stocks are associated in certain areas but not in others. A case in hand is plaice and sole in the North Sea. Plaice cannot be fished without catching sole in its southern part. But in the northern part where sole is less abundant, it is possible to conduct a plaice fishery with much lower catches of sole. • The gear is also an essential factor. Gadoids are strongly associated with Norway lobster (Nephrops norvegicus) in certain trawl fisheries, but not at all in long-line or pot fisheries. • As seasonal abundances of different stocks vary, so does their degree of association in the catch.

From the above it follows that a management based on a gear/area/time breakdown of fishing activities could indeed contribute to dissociate different stocks in the catch. However, the extent to which this can be done without major economic disruption to the industry is much less clear. Furthermore, some of the differences in the degree of association among stocks are not permanent; they fluctuate with time and are not necessarily amenable to a management through fixed technical measures.

The US experience in dissociating stocks In the US system, technical measures are used alongside catch limitations as management instruments. The Northeast coast of the US has been subject to numerous efforts in establishing technical measures to dissociate associated species in the catch as a way to avoid choke species effects and other undesirable outcomes. These experiences tend to show that the best way to achieve that objective is the use of dynamic measures, that is, to use real-time information on the presence of the target and bycatch species to inform skippers in real time about the areas where species discrimination may be high. For example, Dunn et al. (2014) found that the use of empirical move-on rules could reduce catch of juvenile and choke stocks between 27 and 33%, and depredation events between 41 and 54%. Dunn et al. (2016) further found that dynamic closures (which typically involve setting relatively small portions of the ocean off-limits for shorter periods, based on fine-scale, real-time assessments of changing conditions) are up to three times more efficient at reducing by-catch with lower costs to fishermen than static measures that close large areas and remain in force longer. These real-time closures were not initially acceptable to the industry, because their target and by-catch species were different in various fisheries, and because the basis for such real-time decisions has to be objective. In this regard, the partnership between the fishing industry and governmental agencies seems to be the crucial factor. For example, in the

The challenge of mixed fisheries Gulf of Maine, through support from the National Oceanic and Atmospheric Administration (NOAA) Fisheries Northeast Cooperative Research Program, the Gulf of Maine Research Institute has developed a near real-time spatial/temporal fishing area selectivity tool (FAST) in partnership with the groundfish industry, which skippers trust to make their decisions on avoidance of choke species and by-catch (Peros et al. 2014). Other experiencers suggest that wide-ranging studies of species’ life histories, potential changes in fleet behavior and individual incentives are important for developing and implementing mitigation programs (O’Keefe et al. 2014).

How to dissociate stocks in mixed fisheries in the EU? For the above purpose there can be two types of solution: either through technical conservation measures, or through the individual behavior of skippers. They are largely complementary, and a combination of the two may in fact allow a certain level of dissociation of species that, under current circumstances, are strongly associated in mixed fisheries. Special measures for weak stocks: spatial management One obvious possibility to dissociate stocks would be to adopt area-based restrictions, when and where the weak stocks would be welllocalized. To protect the weak stocks in question would need to show either a particular geographical distribution (so as to allow for specific area limitations) or certain characteristics that would allow for technical measures to increase selectivity against such stock. These characteristics are not necessarily there in all cases. That means that the use of that provision (that the co-legislators introduced largely in order to address the choke species problem) depends on the existence of practical solutions allowing dissociation of species in the catch in fisheries where they are traditionally caught together. The case of demersal elasmobranchs (for example, skates and rays) is illustrative. In

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general data-limited, TACs for these species tend to have little value. Instead, scientists have suggested spatial proxies to MSY as the best option (ICES 2012). These tools have been recently developed further (Dedman et al. 2015). More recently, Dedman et al. (2017) developed a tool to allow for different scenarios for the management of these stocks based on closed areas of different dimensions, to inform stakeholders and managers on the options available and their effects. These tools are extremely promising for managing weak stocks, at least for stocks with a clear (and relatively stable) spatial distribution. However, the above methods must be compounded with their economic effects, which must always be evaluated. In particular, the potential risk of spatial approaches is that they determine a displacement of the fishing effort to different areas than those initially intended by the fishers. This may have negative economic effects. In addition, the displacement may also generate negative biological effects: in a study conducted on the cod/saithe fishery in the North Sea, the spatial displacements of the fleets to avoid catching cod (choke species in this fishery) would increase effort in the area where juvenile saithe is most abundant, thus provoking a reduction of the saithe spawning stock biomass in the long run (Simons et al. 2015). Clearly, these measures are promising but their effects, both biological and economic must be evaluated on a case by case basis. The role of technical conservation measures Many of these measures may allow a certain dissociation of species. The association of species is never identical in different areas, so area-based approaches to catching available TACs can play only a limited role in the dissociation. Similarly, gear structure and rigging may also reduce catches of the associated species. There are many examples of gear that select different species differently: grids, square mesh panels, etc. For this type of solution to be workable, technical measures have to be flexible and adaptive, something that the traditional approach of

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Regulation 850/98 for example does not allow. In that regard, the recent proposal by the Commission for a new framework on technical measures (EU 2016b) is intended to provide such possibility. In addition, in the EU system such measures should be, to the extent possible, neutral under relative stability, to ensure that the limitations adopted for the protection of the weak stock do not affect different individual Member States very differently. If we look at the US experience, the solution of the dynamic move-on measures seems more promising. This can be done as private schemes by the industry. This is very flexible and must be applied through a real-time system largely based on trust. So far, attempts to use this real-time instrument have been limited, and the Scottish example of the “conservation credits” despite its presumed success, has been rather limited and its effect, rather uncertain (Anon. 2010). A different model is when the avoidance measures initiated by the industry are subsequently enshrined in law. For example, in the US, when fishing under the specific management regime for Bering Sea pollock, fishery cooperatives are empowered to hold operators accountable for moving on. This is no longer a voluntary scheme and the trust concern is much less (Karp et al. 2001). In fact, real time closures have been already regulated, in the context of the control regulation: Articles 51 to 54 of Regulation 1224/2009 lay down conditions for the establishment of real time closures within the CFP, including closures by Member States and by the Commission (EU 2009). However, these provisions have practically never been applied. Beyond the question of the wrong place of these provisions (they are technical rather than control measures) the reason behind this failure is probably the absence of a practical mechanism to make them work, requiring the two crucial factors that allow its successful use in the US: in particular the system of real-time information gathering and dissemination, and the trust by operators. If real time closures are to be implemented in practice in the CFP, those are the questions to look at in

particular, rather than a legal basis without implementation. The role of new technologies Fisheries technology is constantly improving since the development of industrial fishing more than a century ago (Walsh et al. 2002). Not surprisingly this evolution continues today. In fact, the policy-driven evolution toward ever more selective fishing is leading to the development of new gear technologies that allow for a much better discrimination among species (and even sizes) in the catch. The question is: how much can these new technologies facilitate the dissociation of species within mixed fisheries? A report by ICES documents the wide range of improvements in gear technology that are taking place throughout the world (ICES 2016b). These include improvements in trawl door design, underwater imaging and many other technologies that improve the skipper’s ability to discriminate species. The idea that, in particular trawl fishing is basically a blind operation where one cannot control which fish is caught by the gear is gradually being replaced by one where the skipper has an increasing number of options on what to catch and what to avoid. It is gradually becoming possible to some degree to increase the species selectivity of fishing gear so as to better dissociate different species in the catch in mixed fisheries. However, these technologies will reduce mixed species effects, but it is difficult to see how this dissociation will ever be perfect and complete. In addition, with better selectivity may come an economic problem: improved avoidance of unwanted species and/or sizes may also reduce efficiency (and increase cost) for harvesting target species. Better selectivity does not necessarily translate into better profits since these will depend on the basket of fishing rights available to fishermen. The real use of these new technologies can only come through their combination with management: only by ensuring that fishermen have real economic incentives to use these new technologies will they provide a substantial contribution to dissociate

The challenge of mixed fisheries species and reduce choke species effects in mixed fisheries. Can skipper behavior do the job? Beyond the role of technical conservation measures, it is also true that individual skippers can do a lot in terms of dissociating species in their catch, through a combination of factors such as depth, area, speed, haul duration, etc. as well as gear-rigging based on experience and in-depth knowledge of the fishing grounds. Modern technologies allow for an increasingly selective fishing,6 thus opening the door for more avoidance of unwanted catches through the behavior of skippers. This kind of behavior is not amenable to legislative approaches, so its application probably depends entirely on the existence of the right incentives. What can those incentives be? The experience of Scottish skippers as part of the conservation credits scheme has been studied by O’Neill et al. (2014). The introduction of more selective gear that would help dissociate certain species in the catch was fundamentally dependent upon the incentives available to ensure that no loss of daily income took place in the short term. In addition, the authors illustrate how larger mesh sizes can also provide indirect benefits such as a reduction in fuel consumption. Overall, they found that more selective fishing is possible, even on a voluntary basis, provided that the right incentives are on offer. These take notably the form of increased quotas or increased days at sea when and where these are limited. This experience shows that there is a potential for a more selective fishing, that skippers themselves may be able to opt for voluntarily, on the basic condition that the adequate incentives (notably in terms of better access to the resource) be provided for, and that these incentives should guarantee short-term incomes, not just long-term benefits.

6 For example, the use of cameras attached to trawl gear allow for better discrimination of the species to be caught.

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Here again the US experience is useful: one of the most sophisticated systems of bycatch avoidance is that of the fishery for Alaskan pollock, whose stakeholders don’t have a right to catch salmon in principle, and have put together a system of salmon avoidance. These rules are known as “rolling hotspots” where the areas with a relatively high density of salmon are identified and reported in real time (Jim Armstrong, personal communication). The system is entirely run by the fishermen’s cooperatives, who agree by contract to cooperate in running the system and abide by its rules, without direct intervention by the Federal Government (Dave Fluharty, personal communication). But a key to the success of this type of scheme is that the cooperatives are allowed by law to penalize vessels that fail to apply the move-on directions. So in the end it is a mandatory program, with management delegated to cooperatives. This example, among others, illustrates that industry-run systems have a considerable potential to allow for by-catch avoidance. The questions here are two-fold: (i) what kind of incentive is necessary to make this work and (ii) can this kind of system work in the EU? In terms of incentives, a lot could be done at national level in terms of quota allocation, since the allocation of national quotas to the fishing industry remains a national competence that all Member States defend fiercely. At EU level, the precedent of the quota top-ups allowed to Member States using CCTV cameras, agreed by Council for a few stocks means that the idea is not necessarily far-fetched. The main difficulty, however, would be to allow this kind of system as a scheme run by the industry itself. Although not necessarily incompatible with EU law, the difficulty could be to broker an agreement among all industry interests (or at least the main ones, fishing beyond territorial waters) that they would all agree to implement. This would require a new paradigm in terms of governance, where a collaborative, rather than a prescriptive approach would be developed. We will look into this question in Chapter 9.

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impacts on marine ecosystems? ICES Journal of Marine Science 57 (3): 707–719. https://doi.org/10 .1006/jmsc.2000.0734. ICES (2012). Report of the Working Group on Elasmobranch Fishes (WGEF), 19–26 June 2012, Lisbon, Portugal. ICES CM 2012/ACOM:19. 547 pp. ICES (2015). Mixed-fisheries advice for Subarea IV (North Sea) and divisions IIIa North (Skagerrak) and VIId (Eastern Channel). In: ICES Advice 2015, Book 6, 13. Copenhagen, Denmark: ICES. ICES (2016a). Greater North Sea Ecoregion – Ecosystem overview. Published 04 March 2016. Version 2; 13 May 2016. ICES (2016b). Report of the Working Group on Fishing Technology and Fish Behaviour. 25–29 April 2016. ICES WGFTFB Report 2016. ICES CM 2016/SSGIEOM:22. Iriondo, Ane, García, Dorleta, Santurtún, Marina et al. (2010). Managing mixed fisheries in the European Western waters: application of Fcube methodology. Fisheries Research, 134–136: 6–16. Jennings, S., Pascoe, S., Hall-Aspland, S. et al. (2016). Setting objectives for evaluating management adaptation actions to address climate change impacts in south-western Australian fisheries. Fisheries Oceanography 25: 29–44. Karp, W.A., Rose, C.S., Gauvin, J.S. et al. (2001). Government-industry cooperative fisheries research in the North Pacific under the MSFCMA. MFR 63 (1): 40–46. Kempf, A., Mumford, J., Levantin, P. et al. (2016). The MSY concept in a multi-objective fisheries environment – lessons from the North Sea. Marine Policy 69: 146–158. Koen, J.Z., Reineman, D.R., and Kittinger, J.N. (2013). Progress and promise in spatial human dimensions research for eco-system-based ocean planning. Marine Policy 42: 31–38. Kraak, S.B.M. Reid, D.G. and Codling, E.A. (2015). RTI ("Real-Time Incentives") outperforms traditional management in a simulated mixed fishery and cases incorporating protection of vulnerable species and areas. Fisheries Research, 172: 209–224. Longo, C., Hornborg, S., Bartolino, V. et al. (2015). Role of trophic models and indicators in current marine fisheries management. Marine Ecology Progress Series 538: 257–272. https://doi.org/10 .3354/meps11502. Mace, P.M. (1999). Current status and prognosis for marine capture fisheries. Fisheries 24 (3): 30. May, R.M., Beddington, J.B., Clark, C.W. et al. (1979). Management of Multispecies Fisheries. Science 205: 4401.

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Morishita, J. (2008). What is the ecosystem approach for fisheries management. Marine Policy 32: 19e26. Mortensen, L.O., Ulrich, C., Hansen, J., and Hald, R. (2018). Identifying choke species challenges for an individual demersal trawler in the North Sea, lessons from conversations and data analysis. Marine Policy 87: 1–11. O’Keefe, C.E., Cadrin, S.X., and Stokesbury, K.D.E. (2014). Evaluating effectiveness of time/area closures, quotas/caps, and fleet communications to reduce fisheries by-catch. ICES Journal of Marine Science 71: 1286–1297. O’Neill, F.G., Lines, E.K., Kynoch, R.J. et al. (2014). A short-term economic assessment of incentivised selective gears. Fisheries Research 157: 13–23. Paulik, G.J., Hourston, A.S., and Larkin, P.A. (1967). Exploitation of multiple stocks by a common fishery. Journal of the Fisheries Research Board of Canada 24 (12): 2527–2537. Penas Lado, E. (2016). The Common Fisheries Policy. The Quest for Sustainability, 392. Wiley-Blackwell. Peros, Jonathon; Morse, Riley; Salerno, Daniel; Ogilvie, Ian; Labaree and Jonathan Peros. (2014). Reducing bycatch in New England’s groundfish sectors: The development of a fishing area selectivity tool. Lowell Wakefield Fisheries Symposium Series, Issue 29, p. 54. Plagányi, E.A., A. E Punt, R. Hillary et al. (2014). Multispecies fisheries management and conservation: tactical applications using models of intermediate complexity. Fish and Fisheries, 15: 1–22. DOI: https://doi.org/10.1111/j.1467-2979 .2012.00488.x. Rätz, H.-J. and Lloret, J. (2016). Optimising sustainable management of mixed fisheries: differentiating and weighting selective strategies. Ocean and Coastal Management 134: 150–162. Ricker, W.E. (1958). Maximum sustained yields from fluctuating environments and mixed stocks. Journal of the Fisheries Research Board of Canada 15: 991–1006. Rindorf, A., Dichmont, C.A., Levin, P.S. et al. (2016). Food for thought: pretty good multispecies yield. ICES Journal of Marine Science, DOI:https://doi.org/ 10.1093/icesjms/fsw071. Rindorf, A., Dichmont, C.M., Thorson, J. et al. (2017). Quo vadimus. Inclusion of ecological, economic, social and institutional considerations when setting targets and limits for multispecies fisheries. ICES Journal of Marine Science 74 (2): 453–463. https://doi .org/10.1093/icesjms/fsw226.

Simons, S.L., Doring, R., and Temming, A. (2015). Modelling fishers’ response to discard prevention strategies: the case of the North Sea saithe fishery. ICES Journal of Marine Science 72 (5): 1530–1544. https://doi.org/10.1093/icesjms/fsu229. Sissenwine, M.M., Mace, P., and Lassen, H.J. (2014). Preventing overfishing: evolving approaches and emerging challenges. ICES Journal of Marine Science 71 (2): 153–156. https://doi.org/10.1093/icesjms/ fst236. Skern-Mauritzen, M., Ottersen, G., Handegard, N.O. et al. (2016). Ecosystem processes are rarely included in tactical fisheries management. Fish and Fisheries 17: 165–175. Thorpe, R., Jennings, S., and Dolder, P.J. (2017). Risks and benefits of catching pretty good yield in multispecies mixed fisheries. ICES Journal of Marine Science https://doi.org/10.1093/icesjms/fsx062. Ulrich, C., Reeves, S., Vermard, Y., and Van Hee, W. (2011). Reconciling single-species TACs in the North Sea demersal fisheries using the Fcube mixed-fisheries advice framework. ICES Journal of Marine Science 68 (7): 1535–1547. https://doi.org/10 .1093/icesjms/fsr060. Ulrich, C., Vermard, Y., Dolder, P.J. et al. (2017). Achieving maximum sustainable yield in mixed fisheries: a management approach for the North Sea demersal fisheries. ICES Journal of Marine Science 74 (2): 566–575. https://doi.org/10.1093/icesjms/ fsw126. Walsh, S.J., Engås, A., Ferro, R. et al. (2002). To catch or conserve more fish: the evolution of fishing technology in fisheries science. In: 100 Years of Science Under ICES: Papers from a Symposium Held in Helsinki, 1–4 August 2000, vol. 215 (ed. E.D. Anderson), 493–503. ICES Marine Science Symposia. Wilson, J.A. (1982). The economical management of multispecies fisheries. Land Economics 58: 417–434. http://dx.doi.org/10.2307/3145690. Witherell, D. (1995). Management of flatfish fisheries in the North Pacific. In Proceedings of the International Symposium on North Pacific Flatfish, pp. 573–589. Alaska Sea Grant College Program Report AK-SG-95-04, University of Alaska, Fairbanks, 643 pp. Witherell, D., Pautzke, C., and Fluharty, D. (2000). An ecosystem-based approach for Alaska groundfish fisheries. ICES Journal of Marine Science 57: 771–777. Zimmermann, F. and Yamazaki, S. (2017). Exploring conflicting management objectives in rebuilding of multi-stock fisheries. Ocean & Coastal Management 138: 124–137.

CHAPTER 5

Achieving policy objectives in Mediterranean fisheries

MSY and Mediterranean fisheries The policy objective of maximum sustainable yield (MSY) by 2020 in the 2013 reform applies to all European Union (EU) stocks, including obviously the Mediterranean stocks. This is the first time in the history of the Common Fisheries Policy (CFP) that the policy objectives are specifically applicable to Mediterranean fisheries. Given that such fisheries have been subject to a different management regime this represents a major challenge for the CFP. The status of resources, and the lack of tradition and “culture” of fisheries management at EU level make it necessary to catch up with the Atlantic and Baltic, both technically and politically, and all that in a very limited period of time: before 2020. This is just one fundamental challenge for Mediterranean fisheries within the CFP, but there are others, as well as interesting opportunities.1

Time to catch-up When looking at Mediterranean fisheries, it is essential to bear in mind the very different timing of the development of a stock management policy as compared with the Atlantic. In the latter, the total allowable catch (TAC) and quota 1 https://ec.europa.eu/fisheries/inseparable/sites/ inseparable/files/ogs_italy_research_topic_eu_cfp .pdf/

policy has worked since 1983, and in fact only started to produce results in terms of reduction of fishing mortality at the turn of the century. This means that the CFP only managed to get its act together in starting to reduce overfishing after 17 years of its inception! In contrast, the conservation policy was not applied to the Mediterranean in 1983 and the first attempt to look at the management of stocks took place only in 1994, with the first technical measures regulation (EU 1994). Even this first attempt was limited to consolidating existing national measures on mesh sizes in EU law, but there was no attempt to address the question of the management of Mediterranean stocks. A real management policy only started (somewhat modestly) in 2006 with the new regulation (EU 2006) which established effortbased management plans as the basis for stock management. Only the multilateral management of an iconic stock (bluefin tuna) took place in the 1990s, but that was a result of the work of ICCAT (International Commission for the Conservation of Atlantic Tunas),2 not a CFP initiative. The first attempts to manage Mediterranean fisheries in a more systematic manner are very recent: some management plans were adopted by the General Fisheries Commission for the Mediterranean (GFCM) in recent years (Food and Agriculture 2 International Commission for the Conservation of Atlantic Tunas, see chapter 10.

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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Organization [FAO] 2018) and, at EU level, two proposals were made for long-term management plans, for small pelagic fish in the Adriatic Sea (EU 2017) and that for demersal stocks in the western Mediterranean (EU 2018a). These are still not adopted by the EU co-legislators at the time of writing. This clearly implies that the management of stocks in the Mediterranean is more than two decades behind that of the Atlantic. This is important to remember when evaluating the slow progress observed since 2006.

The status of Mediterranean fisheries Figure 5.1 shows the magnitude of the problem: not only fishing mortality levels are very far from the Fmsy objective. Even worse, they are not even being significantly reduced. The general status of Mediterranean stocks is bad, and certainly much worse than in the Atlantic (EU 2016a). This has always been the impression in the scientific community, but only in recent years this has been made clear through more complete and systematic scientific advice. According to the Scientific, Technical, and Economics Committee for Fisheries (STECF), more than 95% of the Mediterranean assessed stocks are exploited at levels larger or much larger than Fmsy (EU 2015; Osio et al. 2015). Other authors consider that 85% of the assessed stocks are overfished

compared to sustainable yield reference values of MSY (Collocca et al. 2013). These differences may appear surprising, but they are probably the consequence of the fact that the “assessed stocks” have traditionally not been the same from one year to the next, so overall evaluations carried out in different years (on a different set of stocks) can provide different results. In any case, all possible combinations of reporting on stock status coincide with the high level of overfishing of most Mediterranean stocks. In terms of fishing mortality, other authors show that, up to 2014, the average exploitation rate for the main demersal and small pelagic stocks of the Mediterranean Sea is around three times the estimated level of Fmsy (Cardinale et al. 2017). In addition, the exploitation pattern of most Mediterranean fisheries is extremely inadequate, with most fisheries having a very low selectivity, resulting in extremely high levels of mortality of juvenile fish (Collocca et al. 2013). These high levels of over-exploitation also seem to have significant effects on the Mediterranean ecosystems, where the overexploitation of the fish has altered and simplified the food webs over time, especially by reducing the proportions of top predators and increasing the presence of non-commercial species at lower trophic levels (Coll et al. 2010; Lotze et al. 2011).

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Achieving policy objectives in Mediterranean fisheries

Sustainable overfishing? One can certainly wonder why, if the resources are so over-exploited, there are relatively few cases of fishery collapse in this area, or even why this situation is not necessarily seen as a complete disaster by the fishing industry, and why the calls for urgent action to remedy this situation have always been received with a mixture of disbelief and resistance. The prevailing view has always been that Mediterranean fisheries are somehow “protected” by a number of factors, such as the high diversity (and high resilience to change), the existence of safe havens for a number of stocks (adult fish situated in deep waters, outside the reach of trawling, that can ensure relatively stable recruitments) or the relatively high price of fish (all for direct human consumption) that make low yields relatively profitable. This situation has led to an extended belief that Mediterranean fisheries are in a state of “sustainable overfishing”. Is this true? Theoretically, a fishery can be over-exploited (in terms of yield per recruit) and be sustainable, in the sense that the reproductive capacity is not impaired. Indeed, Figure 5.2 shows the evolution of biomass in Mediterranean stocks and,

somehow surprisingly, shows a rather stable situation. This looks like a contradiction: with the very high fishing mortality levels shown in Figure 5.1, how is it that biomass levels are stable instead of collapsing? This sustainable overfishing would be characterized by a low yield per recruit, but a relatively stable one for most stocks. This would be easy to test if there were, as in the Atlantic, long time series of stock abundance. Yet, as we saw above, the information on time series is patchy, and this makes a systematic and complete evaluation of this question difficult. However, for smaller groups of stocks certain time series exist that can shed some light on this question: in areas where relatively long time series exist, a decreasing trend in the abundance of commercial species has been observed (Coll et al. 2009). More specific cases, such as small pelagic fish (GFCM 2015) and common sole in the Adriatic Sea (EU 2016b) show the old and significant decline in biomass levels of the stocks concerned. Other recent studies also cast serious doubts about the sustainable overfishing theory. A meta-analysis of 42 Mediterranean stocks of nine species in 1999–2010 showed that the exploitation rate has been steadily increasing,

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Figure 5.2 Evolution of total biomass of Mediterranean stocks since 2003. Source: Commission Staff Working Document SWD (2018) 329. Brussels, 11.6.2018.

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selectivity has been deteriorating and the abundance of the stocks has been shrinking (Vasilakopoulos et al. 2014). Overall, however, beyond more specific cases, Figure 5.2 seems to confirm that the Mediterranean is characterized by a strong growth overfishing, but not so clearly a recruitment overfishing.

Economic performance We have noted the generally positive trend in the economic indicators of EU fishing fleets in recent years. These trends, however, are due to significant progress in the Atlantic basin, but Mediterranean fisheries do not follow the trend. Figure 5.3 shows the evolution of the gross value added and average wages for Mediterranean fisheries in recent years, broken down between small-scale and large-scale fleets. Contrary to the very positive trend shown in Figure 1.5 in Chapter 1 for the whole EU fleet, Mediterranean fleets hardly show significant improvements in recent years, and this is particularly the case for the small-scale sector. A superficial analysis reveals how this can be associated with the status of the stocks: in both areas, the economic improvement follows quite closely that of the overall abundance of the biological stocks, in a very clear demonstration of the case for the improvement of stock status as the fundamental precondition to any improvement in the socio-economic status of Mediterranean fisheries.

The Mediterranean specificity The Mediterranean fisheries show certain differences as compared with the Atlantic. These differences (traditionally grouped under the heading of “Mediterranean specificity”) are frequently mentioned: • The high diversity of the ecosystem and the high number of species in the catch, with sometimes no clear target species identified. For example, in a bottom trawl fishery off the Turkish coast, 135 different species belonging to 10 classes, 26 orders, and 71 families were identified (Gökçe et al. 2016). This makes it difficult sometimes to distinguish a clear target species. • The very bad conservation of most stocks, in particular in terms of growth overfishing (EU 2016b and 2016c). • The poor tradition of systematic and coordinated scientific advice, lacking the tradition of TAC-related advice by International Council for the Exploration of the Sea (ICES) and partially duplicated between STECF and GFCM. • The tradition of local or at best regional management due to the coastal nature of many fisheries. • The traditional weakness of the multilateral management in the sea basin under GFCM, although this is changing for good: in recent times, GFCM has been responsible for important initiatives regarding scientific advice and management (FAO 2018).

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(LSF) fishing vessels in the Mediterranean. Source: EU (2018c).

Achieving policy objectives in Mediterranean fisheries • Last but not least, the narrowness of the Mediterranean continental shelf, which determines a fundamental difference with the Atlantic (see Figure 5.4): the coastal nature of most fisheries, the absence of large common fishing grounds for fleets of different nationalities, and the different jurisdictional regime of these waters. This is in stark contrast with the width of the continental shelf in the waters of the EU-10 where the CFP originated. This chart alone explains probably more than anything else the real Mediterranean specificity. Another important difference that has a considerable bearing on the management of Mediterranean fisheries is the fact that the EU is not alone in the basin: A key factor is that only nine out of the 23 country-members of the GFCM are members of the EU. Thus, in many cases, the EU has to call upon other international legislative agreements in an attempt to protect fish stocks. These non-EU GFCM members are known as the Mediterranean Partner Countries and in 2006 they accounted for 54% of fish caught in the area whereas the EU Member States accounted for the rest. The importance of catches by non-EU countries in the Mediterranean is not only high: it is also growing over time: between 1990 and 2006, the total catches by Partner Countries in the Mediterranean increased by 47%, with Egypt, Lebanon, and Syria showing the greatest relative increase of 105%, 148%, and 113%, respectively (Hadjimichael et al. 2010). This is extremely important because it creates an understandable fear in EU Member states and their industries that any effort to reduce catches to recover overfished stocks will only result in an increase by their competitors, with no benefit for the resources. The above differences are both the cause and the consequence of very different policy approaches under the CFP between the Atlantic/Baltic and the Mediterranean. And these differences are not only quantitative (“a sea of difference” for Symes 1999) but also quantitative: Mediterranean fishermen are subject to considerable fewer EU regulations

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(Hadjimichael et al. 2010), corresponding to a very late and incomplete incorporation to the acquis of the conservation pillar of the CFP. In any case, these differences should not be considered as an excuse for the obvious failure of the policy in this basin. These differences have been known for a long time. Sometimes, Mediterranean Member States have, to different degrees, hidden behind this specificity to avoid taking specific measures to address the situation. If anything, the specificity means that the conservation policy should have specific instruments and probably a specific timing to achieve objectives, but it cannot be taken as an excuse for the long-standing lack of will by many players to address the problem seriously.

Global warming: a game-changer In Chapter 12 we will look at the effects of climate change on the world’s fisheries and the challenge that this represents. In the Mediterranean these effects are particularly acute: the warming of the waters together with the easy access of warmer water species from the Red Sea are producing an extraordinary invasion of alien species in the basin. More than 900 alien species have been identified in the Mediterranean in recent decades.3 The Eastern part is particularly affected, and the effects of these species has been known for a number of years (Galil 2000; Streftaris and Zenetos 2006), as are the increasingly complex interactions between incoming and native species (Mills et al. 2004). The effects are different from those in the Atlantic. As we will see, in the open Atlantic waters global warming produces a northward displacement of the area of distribution of many stocks. In the Mediterranean this is not possible: species that would normally migrate northwards are “squeezed” by newcomers to the northern part of the basin, where they are increasingly overlapping with the alien species, producing new types of interactions that are still not entirely known. 3 www.sciencedaily.com/releases/2011/05/ 110523171111.htm/

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Bathymetry >200 m 55% of the ocean area, and that “the absolute footprint of fishing is much larger than those of other forms of food production” (Kroodsma et al. 2018). This article received considerable attention by the media and projected a very negative view of the fishing activity and in particular trawling by industrial vessels. However, as we saw in Chapter 8, the comment on that article by Amoroso et al. (2018) demonstrates that when more detailed resolution is applied, the effect of bottom trawling is very significantly lower.

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That bottom trawling affects the sea bottom has been abundantly illustrated (Kaiser 1998; Jennings and Kaiser 1998; Hinz et al. 2009; Lindholm et al. 2015). These effects are variable depending on the type of trawling and the nature of the sea bottom, but may include smoothing bed-forms, removing structure-forming invertebrates and removing structure-building organisms that create habitat. While these effects are more clear-cut in the case of sea bottoms with complex communities of invertebrates, such as coral, sponges, and the like, the effects on sandy or muddy bottoms can indeed be very limited (Lindholm et al. 2015). This implies that the generalization of conclusions on the effects of trawling must be taken with care, as these effects are largely the result of the type of sea bottom under consideration. There is abundant scientific literature on the real effect of bottom trawling in the world’s oceans. A recent study confirms that bottom trawling is highly aggregated, with effects on seabed biota being dependent upon penetration in the sediment; this is lower for otter trawls (6% of biota removed) and highest for hydraulic dredges (41% of biota removed). Median recovery times post-trawling (from 50% to 95% of unimpacted biomass) ranges between 1.9% and 6.4% years. The study also established a methodology that enables the assessment of the trawling impacts on an unprecedented spatial scale (Hiddinck et al. 2017). For European waters, another study has recently evaluated the footprint of bottom trawling and has identified the areas and the level of impact of this technique (Eigaard et al. 2017). These studies (among others) allow for an objective consideration of the problem based on very specific evidence, and should be the basis for any possible future decision on this topic, over and beyond the more media-savvy approach by Kroodsma et al. cited above. There is still however a lot to investigate on this question, and the need for more data is well-assessed, including data leading to best practice (Kaiser et al. 2017).

Another question is that of the alternatives to trawling: if the problem with this activity is the disturbance of the sea bottom, would it be possible to shift from trawling to other kind of fishing (i.e. long-lining?) as an alternative? This is certainly worthy of consideration, and the existence of a number of profitable long-line fisheries for deep-sea resources demonstrates that at least in some cases the ban on trawling could perhaps be compensated by fishing with other gear with less impact on the sea bottom. This, in any case, would have to be fully evaluated before a dramatic measure like a complete ban on trawling in the high seas is considered.

International governance and developing countries In Chapter 12 we will look into the question of the state of conservation of the world’s fishery resources. An important conclusion emerges: while the overall trend worldwide is rather negative, this trend has many exceptions: those of developed countries, and multilateral organizations dominated by these, that in recent years have managed their fisheries relatively well and can now enjoy a positive trend in the abundance of their fishery resources. This implies that the problem of the conservation of the world’s resources lies to a considerable extent in developing countries and in poorly managed international fisheries. This may be the result of their lack of means, lack of tradition or even in some cases lack of political priority to carry out fisheries management. Any future global governance of fisheries should take this into account.

International fisheries governance: a rich country’s agenda? Ocean governance is a notion often developed and advocated by developed countries, while many developing countries view that notion with some suspicion. Yet, it is in developing countries that there is a clearer need to improve fisheries management. International ocean governance is seen by a number of

The CFP and international fisheries developing countries as an attempt by rich countries to limit their access to the resources, by establishing restrictions that generally tend to perpetuate a status quo that prevents new entrants in the system. From that perspective, progress in this area seems only possible if developing countries are given what they see as a fair opportunity to enter the club of those who benefit from the ocean’s riches. This has at least two components: (1) capacity building, through aid to development and (2) access to the fishing rights. In the absent of good ocean governance, certain countries benefit unfairly. However, all too often developing countries see little incentive in investing in this question, preferring unilateral action instead. This is somehow a vicious circle: developing countries see little benefit in engaging in improved management if there is no guarantee of a better deal in the overall share of the ocean’s resources. On the other hand, some developed countries (including those of the EU) promote ocean governance but at the same time want to preserve their acquired rights to exploit the ocean’s resources. How can a deal be struck? As we will see below, partnership seems the way to go.

Capacity building The need for capacity building is wellrecognized under UNCLOS as well as in the EU development policy. Indeed, the UN has established a specific Assistance Fund to help developing States improve their governance. However, an analysis of the UN webpage concerned reveals that most of the contributions to this fund are focused at supporting legal claims for sovereignty or jurisdiction by coastal States, but not to support actions on scientific advice, management, and control of fisheries. In addition, the Fund is currently exhausted.4 Clearly, the UN trust fund is still not a significant contributor to improved fisheries management in practice. 4 www.un.org/depts/los/convention_agreements/ fishstocktrustfund/fishstocktrustfund.htm/

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The EU is the world’s first contributor to aid to development, and this important policy has always been available for matters pertaining to fisheries management in the incumbent countries. However, this policy does not impose priorities. The EU cannot decide that part of its budget be dedicated to improve fisheries management if the countries concerned prefer other priorities. For this reason, the contribution of this policy to improve fisheries management has always been incomplete. Perhaps the most important element to convince many of the receiving countries of the need to use part of the development funds for this purpose is the EU’s action against IUU fishing. Countries being investigated and identified as contributing to this fishing have consistently showed interest in improving their management, using if possible, development funds. For these reasons, the combination of the development policy and the parallel pressure exerted by the EU on this question seems to be a far more efficient system to build capacity in developing countries, and underscores the positive side-effects of the EU’s IUU policy in recent years.

Fight against poverty Among the objectives to be sought by good governance in developing countries, the use of fishing for poverty alleviation is an obvious one. The sustainable livelihood approach (SLA) has been defined and applied as the main standard to apply in fisheries development policy (Allison and Horemans 2006). However, the needs and aspirations of many developing States are not reduced to that. The SLA mentioned above is actually an issue for countries with extreme poverty and famine. However, for many other countries also considered as “developing” (let’s bear in mind that China still considers itself a “developing country”!) the challenges are different. They include in some cases the need for capacity building, but most importantly, the aspiration for a larger “part of the cake” of the ocean’s resources. Beyond that, the fight against poverty does not mean that the fish to be caught will be

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eaten by the local populations in developing countries. In fact, more often than not, fish (even local fish) is more a cash crop than a direct source of food. In a number of cases, the fishing rights by developing countries are exerted by operators whose interest is to sell the fish abroad, in exchange for cash. Certain African countries with abundant resources in their EEZs see how much of this wealth goes away to produce fishmeal, to feed other sources of animal protein, generally in very distant countries such as, again, China.5 These are, in any case, sovereign choices by the developing States, and nobody has the right to tell them what they should do with their fish. The question boils down to one: to alleviate poverty, do these countries have a fair access to the ocean resources?

Access to fishing rights We have seen in various sections of this document how crucial it is for good fisheries management that the allocation of fishing rights be resolved. In certain Regional Fisheries Management Organizations (RFMOs), existing allocation keys are under almost permanent questioning. In some cases, the problem has been tackled through the preparation of allocation criteria to inspire future allocation exercises. This type of initiative, however, is of very limited use, as the experience of ICCAT in 1999 clearly demonstrates: on that occasion, ICCAT did actually agree on a set of allocation criteria, but to strike a deal the criteria were so general that almost any allocation key could possibly be justified on that basis. This issue is extremely difficult, yet it is essential if progress is to be made in fisheries governance. The difficulty can be easily understood from both sides: • From the developing States’ side, it is impossible, either legally or politically, to deny them access to their fair share of the ocean’s resources.

5 www.dw.com/en/foreign-appetite-for-fish-meal-

threatens-west-africans-livelihood/a-44506336/

• From the developed States’ side, it is difficult to convince the industry to give up rights that they obtained after years of effort, risky investment and hard work. Some developing nations often claim fishing rights without having the capital, the technology, the tradition and the markets for fishing. In addition, more often than not they want to fish to export their catch to the same countries they want to replace in the world’s fishing grounds. How can this be resolved? As we saw above, the idea of closing all fishing in the high seas has been presented also as a way to redistribute fishing rights on a fairer way, to the benefit of developing countries (Sumaila et al. 2015). However, in that analysis we see that some of the “winners” of this measure would be, inter alia, the US, Guam (US) and the United Kingdom, which are hard to classify as developing countries. This is certainly counter-intuitive. One promising way forward would be to develop the idea presented already by the European tropical tuna industry to invest in third countries in a way that these would benefit from the revenues of the fishing activity, but using Europe’s technology and capital, as well as the European markets. In fact, language to this effect was included in the conclusions of the third session of the Kobe process (see section on “Global fleet capacity” below). This idea would provide a win–win situation for both parties, and would have the crucial advantage of being agreed by the party that would in principle have more to lose: the industry from developed countries. Unfortunately, this idea has not made significant headway in practice. A new partnership The key to resolve the above problem is partnership. Partnership between the industry in developed States and the local interests in developing countries to jointly run a healthy and sustainable fishery, using developing countries’ increased fishing rights through developed countries’ capital and technology. Failure to establish these partnerships can only lead to frustration in both sides, for the benefit of third

The CFP and international fisheries parties, such as China, that do not hesitate to extend their investment in the world fisheries squeezing out existing interests and preventing the development of new ones. Such partnership, to be sure, also has opponents: for many NGOs, the development of fisheries in developing countries must be done based on a small-scale basis, away from large industrial interests. Theoretically, this is supposed to represent a more inclusive, labor-intensive, and autonomous way of developing fisheries, for the benefit of local populations. This deserves careful analysis: while it is true that small-scale fishing can be extremely important in many areas of the world (and not only in developing countries), it is also important to remember that the small-scale option must not necessarily be the only one, or even the best, for a number of reasons: • Developing countries have the right to choose their own socio-economic model to develop their fisheries. Trying to impose a specific model on them is somehow neo-colonialist. • In many cases, small-scale development is simply not viable. There is no better example than Namibia. Its extremely rough seas and absence of coastal population in very large areas of their territory makes it impossible to rely on small-scale fishing. Certain NGOs have criticized the Namibian model of fisheries development because it is based on large-scale industrial fishing through foreign investment. However, just looking at a map of Namibia, and knowing a little about the Namibian Sea under the Benguela current, is more than enough to understand the Namibian approach. • Another case in hand is that of the countries (small Pacific Island States) constituting the Parties to the Nauru Agreement (PNA) who exploit their abundant tuna resources through licensing of foreign (very large) vessels. It is difficult to see how the tuna occurring in a maritime area of 14.3 million km2 and producing 25–30% of world’s tuna catches and 60% of Pacific

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catches6 could be exploited through smallscale fishing. Overall, the above partnership is indeed a very valid model for at least those cases where small-scale fishing is not a practical option, or perhaps even more simply, for those cases that developing countries in question would choose based on their own sovereignty.

Large-scale MPAs and developing countries Large-scale MPAs and the defense of small-scale fishing often go hand in hand, notably because they tend to share certain advocates (environmental NGOs). However, both things are not necessarily compatible; in fact, they tend to work in opposite directions. Indeed, large-scale MPAs have a much greater impact for small-scale fishing than for large-scale fishing. No-take zones affect much more those who cannot displace their fishing activity to other areas, whereas most ocean-going vessels can easily change fishing area and continue fishing outside MPAs. When considering MPAs, one should not take for granted that they would benefit mostly small-scale fishermen from developing countries. Depending upon how they are designed, they may have the opposite effect. There is another important side-effect of a policy on large-scale MPAs: since their establishment implies the termination of certain economic activities, there is much more resistance for their establishment in areas densely populated and intensively exploited. These generally correspond to developed States. This, in turn, combined with the quantification of objectives (the 10% Aichi target) may produce a tendency to establish large MPAs in remote areas with low activity and low social and economic resistance, or simply in areas where vested interests are less articulate in defending their economic activity. These circumstances may generally coincide with developing countries. As a result, the need to achieve quantified targets, 6 http://awsassets.panda.org/downloads/factsheet_7 .pdf/

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combined with different levels of political/ economic resistance, may result in MPAs being established disproportionately in developing countries’ remote areas, both questioning the objectives established in the first place, and especially the fairness of the whole process: in the end those excluded may tend to be small-scale interests from developing countries.

Global fleet capacity A problem of global governance The uncontrolled development of fishing fleets (very particularly from the Far East) represents one of the main threats to the world’s ocean resources today. While the need to cap total capacity is recognized by everybody, practical efforts to do so at a global level have failed. Roughly speaking there are three groups of countries regarding fleet capacity: • Countries having voluntarily capped their fleet capacity. Mostly developed countries, they have decided to limit the size of their fleets even in the absence of an international agreement to do so. The EU, Japan, and the US are part of that group. • Countries having small fleets but wishing to expand them. Typically developing States that see fisheries as a possible area for economic development. Many of them, however, lack the finance or the know-how to do so, but maintain their aspirations. India or Brazil are good examples. • Countries developing their fleets without limitation. These are increasing dramatically their capacity without control. China, Taiwan, and Korea are leading this group. They do so both with vessels under their own flag or vessels under third countries’ flags (notably in flag-of-convenience countries). A significant part of this uncontrolled growth is linked at different degrees with IUU fishing, notably in the case of China. The overall trend is one of continuous increase in the global world’s fishing effort, particularly in the tonnage class of 100–149 gross registered tonnes (GRT) (Anticamara

et al. 2011). This is clearly due to the fact that the self-restraint practiced by certain blocs (the EU, Japan, USA) is more than compensated by the increase in fishing capacity and effort by a number of developed countries, notably in the Far East. In the above context, the exponential growth of the Chinese long-distance fleet is a major cause of concern. According to FAO, China has increased its total combined power of its fleets in recent years notably through an increase in the average engine power from 64 to 68 kW between 2010 and 2012, while for example the EU the downward trend in terms of numbers, tonnage, and power has continued (FAO 2014). Data from the Chinese Association of Vessel Owners show that in 2016 China had more than 2400 ocean-going vessels. Of these, around two-thirds are flagged in China and around one-third are flagged in third countries, most of them flag-of-convenience ones. According to FAO, most Asian countries have shown considerable increases in marine catches in the last 10 years, with the exception of Japan and Thailand. Myanmar, Vietnam, Indonesia, and China have shown continuous growth, sometimes in an astonishing decadal increase (FAO 2014). The Asian fleet is more than an order of magnitude larger than any other region in both capacity and effort, and continues to increase. Most other regions have stabilized capacity, in particular Europe where such capacity has declined. Overall, the developed world as a whole has reduced capacity in recent years while developing countries are showing the greatest relative increase (Bell et al. 2016).

The Kobe process The so-called Kobe process was an initiative to try to find a solution to the problem of the world’s tuna fishing capacity. Originated in Japan, who organized the first meeting in Kobe, the process organized two subsequent gatherings, in Spain and the USA, but went no further due to lack of progress. The process, attended by most tuna-fishing countries and by the five RFMOs dealing with

The CFP and international fisheries tuna fish, was made very difficult notably by two factors: • The absence of China, whose fleet has grown in recent years into the largest in the world. This made it difficult for participants to make strong commitments on self-restraint in fleet development when the biggest player did not even attend. • The legitimate interest of certain developing countries to develop their fishing rights. In particular, the small island developing States of the Pacific viewed the process as an excuse by wealthy, long-distance fishing nations to preserve the status quo. The Kobe 3 process adopted some recommendations on the question of capacity. However, it did not create any over-arching system to deal with the transfer of capacity among oceans and charged every tuna RFMO to evaluate capacity. On that basis it recommended that: Kobe III participants recommend that developed fishing members freeze large-scale purse seine capacity under their flag. Based on the status of the stocks, each RFMO should consider a scheme for: • Reduction of overcapacity in a way that does not constrain the access to, development of, and benefit from sustainable tuna fisheries, including on the high seas, by developing coastal States, in particular small island developing States, territories, and States with small and vulnerable economies; and • Transfer of capacity from developed fishing members to developing coastal fishing members within its area of competence where appropriate.

It also adopted some vague language by participants to cooperate in the fight against IUU fishing. Overall, the Kobe process made limited progress in addressing the problem: • Some RFMOs have adopted capacity freezing measures, but some of these have in fact been completely undermined by the need to accommodate new entrants from coastal States having a genuine right to fish in the high seas. • These limitations are not adhered to by a number of countries that act as flags of convenience.

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• There has been very limited transfer of capacity from developed to developing States, at least in terms of genuine investment. In fact, most of the investments have taken place as IUU to flag-of-convenience countries by Far East operators. As a result, the increase in the world’s fleets still continues fundamentally unchecked, and not only for tuna fishing, but also in other types of fishing. In the context of the IUU dialog between the EU and China, the latter showed no intention whatsoever to check the tendency described above of an explosive increase in their oceangoing fishing fleet. This is the clearest demonstration that the problem has not yet been resolved. The current initiative by the Commission on global ocean’s governance would have been an ideal context for new political initiatives in this regard. Unfortunately, this idea did not make the “final cut” of the selected initiatives (EU 2016). Although the important initiative on IUU will help in this regard (as much of the current development of the Chinese fleet is through flags of convenience) this kind of initiative alone will not solve the problem.

A key factor: the allocation of fishing rights The limitation of the world’s fleets is made extremely difficult by the lack of agreement on how to share the capacity ceilings. As we saw above in the section “A problem of global governance,” any attempt to limit global capacity is still seen by many countries as a way to limit their legitimate right to develop their own fishing industry and take their fair share of the world’s fishery resources. This implies that there is no possible solution to the problem of global fleet capacity unless there is some agreement on how to allocate such capacity among the countries. There are some examples of how this can be done. The best example of a limitation of fleet capacity as an instrument for management is that of the Inter-American Tropical Tuna Commission (IATTC) which at the end of the

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1990s, upon the increased interest in fishing in the area by a growing number of countries, established a vessel capacity ceiling. This was difficult to establish because of the need to accommodate the legitimate rights of all States with a right to fish. The allocation of capacity rights even gave fishing rights to countries like Costa Rica that at the time did not want to develop a fleet. Even so, at the end of the 1990s a difficult agreement was reached and IATTC established a capacity ceiling allocated to participating countries. In subsequent years, however, the closed nature of the allocation raised problems with coastal nations, such as Peru, that could not accept that a coastal State like them would be denied the right to fish in the area, by virtue of their lack of a capacity quota. Similar claims by other countries resulted in a repeated adaptation of the capacity ceilings that, by admitting new entrants, ended up losing much of its value as a management instrument. This experience is an excellent illustration of how the legitimate aspirations of countries to have a share of the cake stands in the way of a stable agreement on capacity. The solution is not simple or straightforward, because industrialized nations having the tradition (and the markets) are understandably reluctant to give up the status quo to accommodate new entrants, but also because some developing nations regularly make over-ambitious, unrealistic claims for fishing rights, not supported by a real capacity to use them in practice. In the end, only a few countries in the Far East, as mentioned above, have benefitted from this situation, by taking advantage of the lack of limitations to increase their fleets at unprecedented levels in recent years. There is probably no single solution to this problem, but at least some ideas can be explored: • Extending the approach initiated by IATTC in the 1990s to other RFMOs, even if their efforts to cap capacity have to be re-opened regularly. • Establish within the RFMOs a system to facilitate investment by industrialized nations

in developing ones, so that the legitimate aspirations of the latter can be satisfied through partnership with the former, thus preventing IUU investment. • Opening fishing rights to a market mechanism that would ensure a minimum share of the total capacity to developing countries, so that these could use them either through their own development or through foreign investment. In any case, there is hardly a more pressing question of international fisheries management than this one. One way or another, the EU will have to play a key role in finding a solution. As indicated above, the current emphasis by the EU on the improvement of the world’s ocean governance should provide the right framework where this important question could be addressed.

Fisheries enforcement at global level: fighting against illegal fishing Introduction IUU fisheries are one of the main problems of today’s fisheries around the world. Its impact on the world fisheries is, by its own nature, difficult to estimate, but different sources advance amounts ranging between 11 and 26 million tonnes a year, in a context of total catches of wild fish being around 90 million tonnes. The European Commission estimates the economic value of IUU fishing to be around €10 billion a year, that is, 19% of the worldwide reported value of catches.7 It is important to emphasize that IUU fishing, in the context of the CFP, is not just any illegal fishing activity, but rather an illegal activity that takes place regularly and is not controlled or penalized. This is an important distinction because many vessels can commit infractions, even serious ones, but that does not make them IUU, if they are sanctioned by either the coastal 7 https://ec.europa.eu/fisheries/sites/fisheries/files/

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The CFP and international fisheries or their flag States. IUU is therefore about illegal behavior mixed with impunity. The negative effects of IUU fishing are obvious: • They discourage compliance by non-IUU fleets. • They produce unfair competition in the markets for the law-abiding fishermen. • They undermine the ability of developing countries to develop their own, legitimate fishing industries. • Their unreported nature undermines data collection and the production of good scientific advice. • In some cases, IUU fishing is also associated with very poor working conditions, and even slavery. In the US, the IUU activity is also strongly resented as a source of revenue and job losses for local communities. For example, the Alaska Bering Sea Crabbers have estimated that unofficial over-quota catches of king crab by Russian vessels amounted to 10 million pounds in 2014, mainly from vessels with Russian ownership and crews but flagged in such countries as Sierra Leone, Myanmar, or Belize, and imported into the US market partially processed without indication of origin. This provokes important losses of revenue notably through depressed prices in the US market (Anon 2016). The fight against illegal, unreported, unregulated (IUU) fishing must be therefore a fundamental objective of any international governance of fisheries.

The success of the EU IUU policy The fight against illegal fishing is one of the most significant and successful policies within the framework of the CFP. Although other countries around the world are also applying measures against illegal fishing, the EU system, based on Regulation 1005/2008 (EU 2008), is the most advanced and effective one available today. The system is based on documenting the origin of fish imports to the EU. When and where there is evidence of IUU fishing from a given country, an investigation is conducted.

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Failure to address the problem leads to a pre-identification of the country concerned, followed by a cooperation initiative from the EU to improve fisheries management in the country in question. Only consistent and repeated failure to engage in that cooperation can lead to the identification of that country as non-cooperating and thus to the application of trade measures as a very last resort. Both the pre-identification and the identification are lifted when the country in question improves its fisheries management. The system is not protectionist: in case that trade measures are applied to a third country, the EU operators fishing in that country would be first affected: they would not be able to sell their fish in their own market. The whole system is not based just on the “threat” of trade measures, but on cooperation. A number of developing countries have benefited from the EU development aid, or from the new generation of bilateral fisheries agreements to improve their fisheries management systems. Thanks to this cooperation, more than 30 third countries have improved their systems to fight IUU. In some cases, such as Indonesia or South Korea, the improvements in their fisheries management and in their handling if illegal fishing has been nothing short of extraordinary.

A multilateral IUU policy The EU’s IUU policy, successful as it certainly is, still has a major drawback: it is applied by the EU alone. Neither the US system nor the Japanese one (the other world’s largest fish markets) are nearly as efficient as the European system. Ensuring that this policy is applied by an increasing number of countries, and particularly by the biggest importers of fish is essential to “close the circle” and increase the effectiveness of the policy. In this regard, the recent entry into force of FAO’s Port State Agreement is excellent news. With 51 ratifications (including the EU, Japan, and USA, three main fish markets, but still excluding China and Russia)8 the Agreement 8 www.fao.org/fishery/psm/agreement/parties/en/

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is formally in force. FAO itself recognizes, that now the priority must be the effective implementation of this agreement. This requires inter alia the development of the access to information. The High Sea Vessels Authorization Record is a fundamental step. Current coverage and completeness of this instrument is variable. Even more importantly, imposing as an obligation the vessels International Maritime Organization (IMO) number as Unique Vessel Identifier would provide an extremely valuable instrument that would allow tracing all vessels regardless of any change of name, flag, or owner: the ultimate instrument to track and act on identified IUU offenders. The EU has identified the need to make further progress at a multilateral level on the fight against IUU fishing one of the priorities in its recent approach on the improvement of the global ocean governance referred to above. Today, IUU operators can still sell their illegal fish to a number of alternative markets around the world in the event of a trade ban from the EU. Only when all the large fish markets around the world establish a coordinated ban on that fish will the illegal activity be severely curtailed. This calls for a stepwise approach to further increase coordination with like-minded countries. But this is difficult and time consuming, and requires a level of priority for the external EU fisheries policy that is not easy to meet in today’s context of reduction of human resources in the EU institutions.

What future for the fight against IUU fishing? Beyond the very obvious need to develop a more multilateral approach in fighting IUU activity, there is another crucial question: the overlap between illegal fishing and other illegal or illegitimate activities in the world’s oceans. Illegal activities such as slavery (or illegitimate such as extremely poor working conditions in certain third country vessels without adequate legislation), smuggling, and piracy have been conducted a number of times using fishing vessels, and certain IUU offenders are also involved in other kinds of illegal activity.

In the long run, there will have to be an increasing integration and coordination by the different services concerned in the fight against these other activities. This is not simple, inter alia because the legal basis to act in these areas is not always necessarily there, at least to use trade measures as a deterrent as in the case of IUU fishing. However, the recent example of the establishment of an EU Coast Guard facility, integrating different maritime surveillance systems dealing with different types of crime at sea clearly sets the tone of the kind of cooperation that can be developed in the future. And, in this case, the question is effectively included in the Commission’s global ocean’s governance initiative. Dreaming on: a “social IUU”? There are very many examples where vessels (IUU or not) apply very poor working conditions which, if not properly slavery, undermine basic human rights and represent a distortion of the competition against vessels that respect such rights. Among them, it has been demonstrated that certain IUU vessels actually employed slave labor. Certain countries, such as Indonesia, have taken action against this practice (following an EU investigation on alleged IUU activity by Indonesian vessels) and have actually taken very dramatic measures to publicly discourage illegal operators, such as sinking confiscated IUU vessels. However, the international legislation to deter IUU activities (see FAO’s Port State Agreement above) and the EU’s legislation provide a legal basis to act against activities in contravention to fisheries measures, but they do not provide a basis to act in case of contravention against basic human rights. The entry into force of the Work in Fishing Convention (No. 188) of 2007 by the International Labour Organization (ILO) represents a unique opportunity to provide a legal basis and an international political legitimacy for countries to act against vessels that do not respect basic workers (or simply human) rights on board fishing vessels around the world. So far, only ten States have ratified this instrument,

The CFP and international fisheries including two EU Member States (Estonia and France).9 Certain NGOs are very active fighting against these practices. Upon entry into force of the 2007 ILO Convention the opportunity is there to launch an initiative to act decisively against vessels involved in these practices and even against flag States tolerating them in their vessels. This will not be straightforward, in particular because lack of progress at the level of the World’s Trade Organization (WTO) in matters pertaining to social policy. While WTO rules allow measures to protect natural resources, the lack of progress on issues related to social dumping would make the above initiative legally difficult, since any trade measure to be applicable by the EU would have to be impeccably compatible with WTO rules. However, an increasing number of people, in view of the success of the EU’s policy on IUU, are wondering why it is possible to apply trade barriers to protect the fish, but not to protect human beings. Different sectors of the industry are calling for action against forced labor on board European fishing vessels, but this cannot be handled by Europe alone. Sooner or later this question will have to be addressed as a fundamental global maritime governance issue.

The improvement of RFMOs Why RFMOs are so important RFMOs are the fundamental instrument for carrying out the multilateral management of fisheries. The Commission has clearly identified the reinforcement of RFMOs as one of the keystones of the improvement of the world’s ocean governance (EU 2016). This is justified for a number of reasons: • RFMOs promote and develop cooperation among coastal States that would probably would not exist otherwise. Areas such as the Indian Ocean benefit from the data collection, scientific advice and management 9 www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB: 11300:0::NO::P11300_INSTRUMENT_ID:312333/

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measures promoted by such RFMOs as the Indian Ocean Tuna Commission (IOTC), where the weaknesses of many of the coastal States of the region are addressed through cooperation (and funding) from long-distance fishing interests such as the EU or Japan. • Where RFMOs are not present or are not operational, there is little cooperation among coastal States. West Africa with the Fishery Committee for the Central Eastern Atlantic (CECAF), or South America (outside IATTC) are examples of non-operational or inexistent RFMOs. In these areas, the cooperation among coastal States for the purpose of the management of shared resources is very small. Where such cooperation exists (for example, the PNA on Pacific tuna) it is difficult to see if such cooperation would have ever taken off without the previous establishment of the Western and Central Pacific Tuna Fisheries Commission. Again, the establishment of an operational RFMO was instrumental for the cooperation among coastal states to take shape. • Strong, operational RFMOs are the best guarantee against illegal fishing. A number of them elaborate lists of IUU vessels, thus facilitating the implementation of measures against such vessels and those providing them support or tolerating their activity. Reinforcing RFMOs is also essential to ensure that fisheries management remains in the hands of fisheries management organizations. Failure to do their job results in environmental organizations (i.e. The Convention on International Trade in Endangered Species of Wild Fauna and Flora [CITES], etc.) taking over the management. The case of sharks is well-known: NGO-led boycotts of the transport of shark fins resulted from the failure by ICCAT to regulate shark stocks.

The necessary improvements FAO (2014) has made an excellent summary of the situation of all the RMFOs in the world. A number of these have made a lot of progress but still have a number of weaknesses, inter alia:

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• Incomplete geographic or species coverage. • Coordination among RFMOs. • Insufficient participation of developing States. • Patchy scientific advice. • Limited capacity for enforcement. • Need to adapt to new challenges such as climate change. Let’s look at these issues one by one. Geographical and species coverage While the coverage of tuna organizations is practically complete, for non-tuna organizations, there are still large areas of the world that are not covered by operational RFMOs. The particular case of NW Africa is paramount: although there is an organization to manage resources in this area, the CECAF mentioned above, this organization is hardly operational. Little wonder that this is one of the areas around the world that suffers a significant amount of IUU fishing and mismanagement. Other areas are also unregulated internationally. A case in hand is that of the fishery for squid between Argentina and the Falkland Islands, where earlier attempts to establish a RFMO failed because of the conflict over the sovereignty of the Falkland Islands. In a 2016 report FAO maps the areas of the world where there are significant fishery resources that are still not managed by an international management organization. While tuna fish are well-covered by these bodies, demersal resources still suffer from a number of unregulated areas including international waters (FAO 2016). Beyond the geographical coverage, there is also an issue of species coverage. In particular, the management of sharks has in some cases suffered from an alleged lack of mandate of certain RFMOs to manage them, even when the geographical coverage was assured by existing ones. For example, the case for a dedicated fishery organization has been already convincingly made (Herndon et al. 2010).

Improving scientific advice We saw above that a basic pre-condition for fisheries management is the availability of scientific advice, and that most of the problems with fisheries management around the world are related to unassessed or poorly-assessed stocks. Although this is a question that can be partially addressed by individual countries, in many occasions the very wide distribution of certain stocks and the small size of a number of coastal States makes it very difficult to improve scientific assessment on a country-by-country basis. Here, the importance of RFMOs to improve regional scientific advice is key. In particular, for widely distributed stocks (notably small and large pelagic fish), and in areas where coastal States are small and even coastal resources are straddling among several countries, tackling scientific advice on a country-by-country basis is not efficient. The case of the numerous small countries in the Gulf of Guinea in Western Africa is the best example. In these cases, the scientific bodies established under RFMOs can play a key role in improving scientific advice. In this context they can provide coordination, training, appropriate geographical coverage and strong incentives to collect scientific data and advice. In addition, their activity and their bids for research funds can be very effective in mobilizing sources of funding for such research from various sources, such as the EU or even the World Bank and other institutions. Coordination among RFMOs Even in the case of tuna organizations where geographical coverage is practically complete, there is an issue with the coordination among the existing RFMOs. Many vessels fishing for tuna are ocean-going and can fish anywhere in the world. That implies that if one particular RFMO becomes much stricter and more effective than others, there is always a genuine chance that many vessels will displace their activity to another ocean, where the

The CFP and international fisheries corresponding RFMO would be less effective in controlling abusive practice. We saw above the case of the Kobe process, where all RFMOs participated exactly for that reason; controlling fleet capacity in one place is useless if this can produce a displacement of the excess capacity from one ocean to another. This issue can only be resolved through coordination among the RFMOs in different oceans so as to make such displacements impossible. Failure to address this can lead to problems even beyond fisheries. Pinsky et al. (2018) have summarized it in very dramatic terms: An alternative future of widespread non-cooperative management over new transboundary stocks risks extensive overfishing, decline in global food and livelihood provisioning from the ocean, fractured international relationships, and political conflicts that could spill over into other, non-fishery areas of international politics.

These words may sound overdramatic for some, but for all those who have witnessed how fisheries non-cooperation can quickly escalate into much more serious conflict, addressing this question is of the highest importance. Further improving developing states’ participation: the allocation of fishing rights Even more important than capacity building to improve the participation of developing states is the question of the fair allocation of fishing rights. In reality, many of these countries have a very limited access to the fishery, either because they have low quotas for the fisheries where catch opportunities are limited and allocated, or in the case of open fisheries because they lack the capacity to compete in such open circumstances. While this is not necessarily unfair for developed states that have traditionally invested in developing these fisheries, this situation is certainly seen as unfair by many developing States. These tend to consider that the weight of historical track records makes it difficult for them to expand their own fisheries. As we will see in Chapter 12, this fact may be

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aggravated by climate change that seems to be producing a displacement of fish abundance away from tropical and subtropical waters to higher latitudes. We saw this question above in the context of the global fleet capacity, but obviously the same applies for the allocation of catch limitations that apply in a number of RFMOs. It is important to underline that this is typically a developing country issue: in those shared only by developed states, such as NAFO or NEAFC, existing allocation keys based on historical track records are fundamentally unquestioned, with the exception of the cases of important recent displacements of biomass as a consequence of climate change. The experience of ICCAT, with a growing number of members who legitimately claim their share of the cake, constitutes the best example, in particular because this continuous pressure for re-opening allocation keys has an important risk: that in order to accommodate new entrants while minimizing the effects on existing quota holders, the overall catch limitations will be increased well over scientific advice. There is not obvious solution to this problem, particularly in areas where developing countries may wake up to their rights under the Law of the Sea as coastal States. Over and beyond the regular updating of allocation keys (an extremely difficult process that would deviate the efforts of the RFMO from management to allocation) it is necessary to look at more creative initiatives, like for example that suggested by European tropical tuna operators, which consider the possible establishment of a market of fishing rights that can potentially benefit all States involved. Enforcement The level of enforcement by different RFMOs is extremely variable. While some, such as NAFO or NEAFC, have quite effective control mechanisms, other organizations still lack appropriate

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mechanisms. This is particularly grave in certain cases, notably around Africa, where important IUU activity is still rampant. The lack of “teeth” has been one of the most common criticism of RFMOs as the main instrument for international fisheries management. Certain coastal States, known for aggressive policies of extending jurisdiction beyond the current 200-mile EEZ, regularly resort to this argument to justify their bid for a wider jurisdiction by coastal States. From that perspective, ensuring good enforcement is indirectly a very effective way to prevent developments by coastal States outside the rules established by the UNCLOS. Perhaps the most effective instrument to ensure compliance, over and beyond the very costly joint inspection and control schemes, is the decision by RFMOs to identify IUU activities, and to propose trade measures to them. Already in the late 1990s, ICCAT identified certain countries as not respecting bluefin tuna and swordfish total allowable catches (TACs) and, on that basis, the Union adopted its first trade measures against the countries concerned, in anticipation of later measures under the IUU framework. Today, a number of RFMOs draw lists of IUU vessels that subsequently are included in the EU list of vessels not authorized to land their catches in EU territory. Although spectacular progress has been carried out through the EU’s IUU policy, the role of RFMOs will remain fundamental. They can provide two precious elements in the fight against illegal fishing: the access to detailed, reliable information on illegal activities in the fishing area concerned, and especially its multilateral character, which will protect trade measures from challenges in the World Trade Organization much better than any unilateral measure. Enforcement is the weakest part of any international system for the governance of fisheries. While certain RFMOs (NEAFC, NAFO, ICCAT) have established good control and enforcement schemes, many activities in world fisheries still remain largely uncontrolled. This is due to several factors:

• Lack of multilateral efforts. Many initiatives (such as the EU’s IUU policy) are still unilateral and not applicable by everybody. • Control and enforcement is expensive and is not necessarily a high priority, in particular for developing countries. • Many undesirable activities in the world’s fisheries do not have a clear legal basis in international law to allow for international action. Bad enforcement is not in the interest of sustainable fisheries and, in most cases, benefits only certain illegitimate economic interests. The need to improve enforcement is crucial to ensure the survivability of legitimate fishing interest in both developed and developing countries. Beyond the highly successful anti-IUU policy of the EU, the issue has also raised considerable interest in the US. It has been estimated that between 20% and 32% ($1.3–2.1 billion) of wild-caught seafood US imports are illegal (Pramoda et al. 2014). These estimates, however, have been seriously questioned as exaggerated, and very recently the above article has been retracted.10 US policy was boosted in 2015 through the establishment of a Presidential Task Force on combating IUU Fishing and Seafood Fraud, to be developed through a 15-point Action Plan for implementing the task force recommendations. Under the new US Administration, however, it is still to be seen if and how this plan will be followed up in practice. Getting ready for climate change Climate change will have consequences on the work of RFMOs. In particular, the following issues emerge as particularly relevant: • The number of trans-RFMO stocks will increase. There are already cases of shared stocks, for example, between NAFO and NEAFC. • In certain RFMOs, the evidence that some stocks may be migrating poleward may 10 www.intrafish.com/fisheries/1670981/

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The CFP and international fisheries produce a race to fish while the fish are still there that will do nothing to ensure sustainability. • Conversely, in the RFMOs “receiving” the fish, there is the risk that slowness in regulating the new resources will endanger their sustainability. • And in all cases, because the inter-area movements of fish will call into question existing allocation exercises, not only among RFMOs, but also within them, since the gradual “loss” of a fish from its traditional area of distribution, no matter how slow and gradual, will alter the status quo. A status quo which, in addition, is seriously questioned by many countries already. These issues must be addressed by RFMOs in a cooperative way, something that will require a new approach among them, when for so many years they have worked as separate entities (perhaps with the exception of the tuna RFMOs under the Kobe process), completely independent from each other.

NEAFC and the “coastal states arrangement” A case of particular interest for the EU is the so-called “coastal States arrangement” which decides on the management of the widely-distributed stocks (Atlanto-Scandian herring, Atlantic mackerel, horse mackerel and blue whiting) in the North East Atlantic, the area theoretically regulated by NEAFC. Under this arrangement, NEAFC decides on management measures applicable only to international waters and only once the coastal States arrangement has been decided in the first place. This is a completely unusual arrangement: while NAFO or ICCAT take measures that are applicable both to EEZs and international waters, in NEAFC nothing is decided unless there is previous agreement by the coastal States. The problem is: this arrangement is informal, has no solid legal basis, no voting or enforcement mechanisms and no dispute-settlement procedures either. As a result, measures tend to be taken only by consensus, thus allowing some States to

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block any agreement for years. This was the case for Atlantic mackerel, that for several years lacked a management system since the “coastal States” could not agree on a new allocation key, so they established autonomous quotas corresponding to their own claim for a quota share: the total sum of these autonomous quotas by the coastal States was, for years, largely in excess of the total TAC recommended by science. This system, however, despite its obvious inefficiency, seems to be extremely difficult to change, and it constitutes an anomaly in the context of an international cooperation that is full of examples of much better management systems. It is all the more an anomaly since the coastal States are signatories of UNCLOS and some of them are widely regarded as having very successful fisheries management at a national level. In the context of international fisheries management, this anomaly will have to be addressed one day. Any improvement of international fisheries governance, even more so in the EU’s own backyard, would be very difficult to understand if this question is not addressed. Climate change (see Chapter 12) will only exacerbate this problem, notably by altering the geographical distribution of the stocks (as was the case with mackerel). This only underscores the urgent need to address this question head-on.

The changes in the traditional status quo of the oceans This is an important emerging challenge, which cannot be identified with any particular event, but whose effects are becoming increasingly apparent. The most important questions are: (i) the increasing privatization of the world’s oceans; and (ii) the change in the rapport de force among traditional and emerging fishing nations around the world. But it is also important to refer to another challenge whose effects are less obvious, but that have a significant potential to affect the place of fisheries in an increasingly complex world: the effects of the information

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society in the way decisions are made, and in the way different interests defend their case. The challenges mentioned below require a new thinking about how the fishing sector must situate itself within this emerging world, characterized by the emergence of new players in the marine space and the development of a much wider policy context than ever before.

The increasing privatization of the world’s oceans Traditionally, we used to think about the oceans as free space, free of physical barriers for fishermen to chase their resources. The only barriers were those established by law, but beyond that the ocean was free space. This is changing. An increasing proportion of the world’s oceans are being occupied by other economic activities that affect fishing, that prevent or limit it, or that can affect it in different ways. The number of marine wind parks is sky-rocketing in many areas of the world. In Europe, the shallowness of the North Sea makes it an ideal area for such development. The high priority accorded to the development of sustainable sources of power makes these developments a high political priority that is without comparison with the small weight of the fishing sector in the economy. For obvious safety reasons, wind parks are incompatible with fishing. In the North Sea alone, 40 wind parks have been established up to 2016 and many more are planned. These are not just coastal: some parks are beyond 100 km from the coast. Added to other uses (see below) and to the environmental protection through Natura 2000 sites, fishing activity will be increasingly squeezed out of its traditional area of activity. If this is resolved through a law of the jungle approach there is little doubt who will be on the losing side. This is why it is so important for the fishing sector to embrace the maritime spatial planning that the EU has adopted as a Directive (EU 2014). Oil and gas drilling are older than wind parks, but the activity is still important. In the North Sea alone, there are 184 offshore oil

rigs, more than anywhere else in the world. This implies that a significant part of the North Sea has become incompatible with fishing activity. Seabed mining is still relatively undeveloped, but the potential for a much higher levels of exploitation is obvious. Since its inception in 1982, the International Seabed Authority (ISA), charged with regulating human activities on the deep-sea floor beyond the continental shelf, has issued 27 contracts for mineral exploration, encompassing a combined area of more than 1.4 million km2 . Many of the regions identified for future seabed mining are already recognized as vulnerable marine ecosystems (Miller et al. 2018). And this is only the beginning. As we saw above, the international community (including the EU) is committed to establish 10% of the oceans as MPAs, and important initiatives are taking place to increase that target to 30%. These MPAs may have different characteristics, but they all coincide in the need to make them “no-take” zones, that is, zones where fishing is prohibited. In some specific cases, this development is however compatible with the development of high-end coastal tourism, including recreational fishing, in what corresponds to a real privatization of hitherto public areas for the benefit a few interests.

The emergent fishing nations In recent years, the development of new fishing fleets is dramatically altering the traditional status quo. While the traditional developed fishing countries (Japan, the US, the countries of the EU) have applied policies to self-limit their fishing fleets, and while many developing countries have not yet succeeded to fully realize their plans for an expansion of their fishing sectors, a few countries around the world account for an unprecedented increase in the overall capacity of their ocean-going fleets, in particular China, Taiwan, and Korea. The countries of the Organization for Economic Co-operation and Development (OECD) have been reducing their capacity in recent years from 5 120 000 gross tonnage (GT) in

The CFP and international fisheries 2005 to 4 021 000 GT in 2015.11 In the same period the fleets by the three Asian countries mentioned above have increased considerably. Today, Asian fishing capacity represents 80% of the world’s fishing capacity of motorized vessels, and Asian fleets also claim the highest percentage of vessels of more than 24 m of length (FAO 2016). It is also important to underline that economic interests from Asian countries account for a very large percentage of the fleets registered in flag-of-convenience countries around the world. These developments are extremely challenging, both in terms of the overall management of ocean resources, but also in terms of the role that international fisheries will play in the emerging context. The current initiative on the global ocean’s governance (EU 2016) is largely motivated by the need and opportunity to develop the ocean economy in a well-governed, sustainable, and fair manner. While fisheries represent a relatively small part of the potential blue economy, the opportunity to use such an important initiative to improve international fisheries management should not be missed.

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EU (2006). Council Regulation (EC) No 1967/2006 of 21 December 2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea, amending Regulation (EEC) No 2847/93 and repealing Regulation (EC) No 1626/94. Official Journal of the European Union L 36/6 of 8.2,2007. EU (2008). Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999. OJ L 286, 29.10.2008, p. 1. EU (2009). Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (codified version). Official Journal of the European Union, L 20 of 26/1/2010, p. 7. EU (2014). Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning. Official Journal of the European Union L 257, 28.8.2014, p. 135. EU (2015). Report from the Commission to the European parliament and the Council on the progress in establishing marine protected areas (as required by Article 21 of the Marine Strategy Framework Directive 2008/56/EC). Brussels, 01.10.2015. EU (2016). Joint Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. International ocean governance: an agenda for the future of our oceans. JOIN (2016) 49 final. SWD (2016) 352 final Brussels, 10.11.2016. EU (2018). The 2018 Annual Economic Report on the EU Fishing Fleet (STECF 18-07). Edited by Natacha Carvalho Michael Keatinge and Jordi Guillen. Scientific, Technical and Economic Committee for Fisheries (STECF). Joint Research Centre. EUR 28359 EN. FAO (2014). The state of world fisheries and aquaculture. In: Opportunities and Challenges, vol. 223. Rome: Food and Agriculture Organization. FAO (2016). The State of World Fisheries and Aquaculture. Opportunities and Challenges. Rome: Food and Agriculture Organization, 200 pp. FAO (2017). Marine Protected Areas: interactions with fishery livelihoods and food security. FAO Fisheries and Aquaculture Technical Paper 603, 158 pp.

Harmelin-Vivien, M., Le Diréach, L., Bayle-Sempere, J. et al. (2008). Gradients of abundance and biomass across reserve boundaries in six Mediterranean marine protected areas: evidence of fish spillover? Biological Conservation 141: 1829–1839. Herndon, A., Gallucci, V.F., DeMaster, D., and Burke, W. (2010). The case for an international commission for the conservation and management of sharks (ICCMS). Marine Policy 34 (6): 1239–1248. Hiddinck, J.G., Jennings, S., Sciberras, M. et al. (2017). Global analysis of depletion and recovery of seabed biota after bottom trawling disturbance. Proceedings of the National Academy of Sciences of the United States of America. https://doi.org/10.1073/ pnas.1618858114. Hilborn, R., Stokes, K., Maguire, J.J. et al. (2004). When can marine reserves improve fisheries management? Ocean and Coastal Management 47: 197–205. Hinz, H., Prieto, V., and Kaiser, M.J. (2009). Trawl disturbance on benthic communities: chronic effects and experimental predictions. Ecological Applications 19: 761–773. Jennings, S. and Kaiser, M.J. (1998). The effects of fishing on marine ecosystems. Advances in Marine Biology 34: 201–352. Jones, P.J.S. and De Santo, E.M. (2016). Viewpoint – is the race for remote, very large marine protected areas (VLMPAs) taking us down the wrong track? Marine Policy 73: 231–234. Kaiser, M.J. (1998). Significance of bottom-fishing disturbance. Conservation Biology 12: 1230–1235. Kaiser, M.J., Hilborn, R., Jennings, S. et al. (2017). Prioritization of knowledge-needs to achieve best practices for bottom trawling in relation to seabeds habitats. Fish and Fisheries 17: 637–663. Kroodsma, D.A., Mayorga, J., Hochberg, T. et al. (2018). Tracking the global footprint of fisheries. Science 359: 904–908. Lester, S., Halpern, B., Grorud-Colvert, K. et al. (2009). Biological effects within no-take marine reserves: a global synthesis. Marine Ecology Progress Series 384: 33–46. Lindholm, J., Gleason, M., Kinne, D. et al. (2015). Ecological effects of bottom trawling on the structural attributes of fish habitat in unconsolidated sediments along the central California outer continental shelf. Fishery Bulletin 113: 82–96. Miller, K.A., Thompson, K.F., Johnston, P., and Santillo, D. (2018). An overview of seabed mining including the current state of development, environmental impacts, and knowledge gaps. Frontiers

The CFP and international fisheries in Marine Science 4: 418. https://doi.org/10.3389/ fmars.2017.00418. Pauly, D., Christensen, V., Guenette, S. et al. (2002). Towards sustainability in world fisheries. Nature 418: 689–695. Pauly, D., Watson, R., and Alder, J. (2005). Global trends in world fisheries: impacts on marine ecosystems and food security. Philosophical Transactions of the Royal Society of London, Series B: Biological Sciences 360: 5–12. Pinsky, M.L., Reygondeau, G., Caddell, R. et al. (2018). Preparing ocean governance for species on the move. Science 360 (6394): 1189–1191. Pramoda, G., Katrina Nakamura, K., Pitcher, T.J., and Delagran, L. (2014). Estimates of illegal and unreported fish in seafood imports to the USA. Marine Policy 48: 102–113. Roberts, C. (2007). The Unnatural History of the Sea. Island Press, 423 pp. Sala, E., Mayorga, J., Costello, C. et al. (2018). The economics of fishing in the high seas. Science Advances 4: eaat2504.

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Sen, S. (2010). Developing a framework for displaced fishing effort programs in marine protected areas. Marine Policy 34: 1171–1177. Singleton, R.L. and Roberts, C.M. (2014). The contribution of very large marine protected areas to marine conservation: Giant leaps or smoke and mirrors? Marine Pollution Bulletin 87: 7–10. Sumaila, U.R., Lam, V.W.Y., Miller, D.D. et al. (2015). Winners and losers in a world where the high seas is closed to fishing. Nature Scientific Reports 5: 8481. https://doi.org/10.1038/srep08481. Walters, C., Pauly, D., and Christensen, V. (1999). Ecospace: prediction of mesoscale spatial patterns in trophic relationships of exploited ecosystems, with emphasis on the impacts of marine protected areas. Ecosystems 2: 539. White, C. and Costello, C. (2014). Close the high seas to fishing? PLoS Biology. Perspective 12 (3)): e1001826, 5 pp.

CHAPTER 11

The missing elements of the 2013 Policy reform

What the 2013 CFP reform missed The 2013 Common Fisheries Policy (CFP) reform achieved three major policy changes: the landing obligation, the objective of maximum sustainable yield (MSY) by 2020 and the regionalization (EU 2013). These have been discussed in previous chapters. There were, however, certain other issues where the CFP reform did not achieve any substantial change, and where the Commission proposals did not succeed.

The issues beyond the “big four” The 2013 CFP reform was dominated by discussions on the so-called “big four” issues: MSY, landing obligation, regionalization, and rights-based management. While the first three were adopted in the new CFP, the fourth (rights-based management) was not. This issue therefore remained as a pending one that, short of a majority in favor, received nonetheless support from a number of Member States in Council and a number of stakeholders. In addition, many other issues were subject to important discussions that, ultimately, did not result in important innovations in the CFP. But their importance is such that it is easy to anticipate that they will remain on the agenda of future issues to discuss in the CFP. Among these, it is important to mention the fleet policy, the dilemma between small-scale and

large-scale fishing, the control system (that had been subject to a reform in 2009) including the idea of cost-recovery, and the fleet policy as an alternative to rights-based management. As for the structural policy, a new regulation was adopted with a number of interesting new features, but it is legitimate to question whether the new regulation (EU 2014) really met all the expectations. The issues that were not incorporated into the CFP in 2013 are still important; they will be around in future discussions and they had important support. It would be a mistake to dismiss them; they should be part of the on-going and future debate because the relative balance between support and rejection is not necessarily fixed in time, and there is plenty of experience showing that yesterday’s political “non-starters” can become tomorrow’s opportunity for a number of actors as circumstances change.

Rights-based management Rights-based management is a generic group of management instruments based on the notion that fishing rights are allocated to private owners, generally as percentage shares of the resources available. Among rights-based management (RBM) systems, the best known are the individual transferable quotas (ITQs) where the fishing rights can be freely traded

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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among operators. Many such systems are used to manage fisheries around the world. New Zealand, Iceland, Canada, the US and Norway, among others, use this kind of system for all or many of their fisheries. The Commission has discussed RBM on various occasions, particularly in recent years, as examples of this kind of management have multiplied in many countries around the world including some EU Member States. In 2007, the Commission issued an unprecedented communication on this issue (EU 2007), recognizing the difficulties of conciliating this principle with relative stability but inviting Member States nevertheless to debate it. As with some other initiatives, no real debate took place following this communication and the question of RBM remained a non-issue until the Commission revived it in the context of the preparation of the 2013 reform. In that context, RBM was considered only at national level. The initial idea of RBM between Member States was abandoned at an early stage of the consultation process prior to the Commission’s proposal, due to very strong opposition by many Member States, which considered that such a possibility would lead to a breach of relative stability.

Is rights-based management good or bad? In the EU, RBM systems are used at national level in several Member States. The systems used by the Netherlands and Denmark are the best known. The generally positive results of these systems led the Commission to propose them in the context of the 2013 CFP reform, in the form of transferable fishing concessions (TFCs) at national level (and allowing for the exclusion of small-scale vessels). However, for a number of reasons explained by this author (Penas Lado 2016, chapter 16), this proposal did not succeed. It is however important to re-examine the case of the RBM instruments, notably to evaluate if they could contribute to a better implementation of the CFP as reformed in 2013 and in particular the landing obligation.

In general terms, both theory and empirical evidence suggest a robust link between strong RBM systems such as ITQs and economic performance of a fishery, although the link with ecological performance is more tenuous. The idea behind such systems is that, once the fishermen have a financial stake in the returns from sensible investment in sustainable practices, they are more easily convinced to make the sacrifices required to rebuild and sustain fisheries at high levels of economic and biological productivity (Costello et al. 2008). In the specific case of the EU, it has long been shown that economic gains can be achieved in each Member State through the introduction of RBM, particularly in mixed fisheries (Squires et al. 1998). This confirms that the opposition to this kind of mechanism by many actors of the CFP is not necessarily based on economic grounds, and stands in the way of an improvement of the economic outlook of the industry in Europe. The proposal by the Commission for the 2013 reform in 2011 introduced RBM through a formula, the TFCs, which carefully avoided the impression that the instrument would amount to privatization of the fishery resources, something contrary to the constitution of certain Member States. The Commission proposed the instrument based on the existing experience showing how RBM improves economic performance and reduces fleet capacity. In consequence, it also proposed to eliminate the fleet policy (as unnecessary) and the scrapping funds: no taxpayer money should be used to reduce capacity if a market mechanism could successfully do it. Despite the above arguments in favor, there were also very critical voices against this kind of system. As a few examples: • For some authors, RBM systems do not guarantee sustainability themselves, and must be combined with other management instruments (Chu 2009). • For others, the advantages of strong RBM systems may be obvious when studied under certain disciplines (economics), but not so under different ones (social science), and

The missing elements of the 2013 Policy reform their evaluation must take account of all relevant effects (Gibbs 2009). • Social scientists tend to be very critical of ITQs on account of their effects on certain small-scale communities, who tend to lose out when market instruments are applied. For example, when studying the French system to allocate non-transferable quotas through producer organizations, it was found that this non-transferable system successfully avoided concentration of fishing rights; it included greater equity within particular sub-fleets; and in some cases greater benefits for the small-scale fleets (Bellanger et al. 2016). • European NGOs are very critical because ITQ systems do not necessarily contribute to favor more ecologically-sound fishing practices: the market of fishing rights tends to be dominated by economic muscle and competitiveness, not by environmental friendliness. It is therefore of interest to review the use of these systems in different contexts, to try to draw some conclusions based on experience and considering their overall effects as regards the different policy objectives. A meta-analysis carried out by Costello et al. (2008) on data on stocks managed from 1970 shows that well-designed catch-shares (another name for RBM) may prevent fishery collapse across diverse taxa and ecosystems. Although the global rate of adoption of catch-share systems has grown since 1970, the fraction of fisheries managed under catch-shares still remains small. This implies a considerable potential for improvement if these systems are extended further. By comparison, in the US, a very interesting study in 2013 of the 15 fisheries subject to a catch-share system at the time revealed interesting conclusions. The catch-share programs were successful in having fishermen improve quota limits, improving efficiency and economic benefits, and ending the race to fish, thereby reducing the pressure of fishermen to fish during unsafe conditions. They were also effective in reducing capacity. However, they

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had distributional consequences, in that the lower number of vessels tended to be counterbalanced by reductions in the number of shareholders (Brinson and Thunberg 2013). When considering RBM, it is important to have clear expectations as to what these systems can provide and what they cannot. Traditionally, there is little doubt that RBM systems are positive for the economic rationalization of the fishing sector, providing for higher profitability, high industry involvement and responsibility and higher flexibility to deal with discard ban policies. It is equally clear that RBM has distributional consequences, with the number of quota holders tending to be reduced. But what remains less clear and always controversial is whether RBM systems actually contribute to fish conservation.

Why did TFCs fail in the 2013 reform? The reasons why the Commission proposal on TFCs failed in the 2013 reform have been explained by this author (Penas Lado 2016, chapter 16). It is important to revisit this question in the light of the further development in the policy. TFCs represented for a number of fishing industry segments and Member States’ administrations a radical breach with a long tradition of paternalistic, government-led management of fishing rights. The very notion of submitting fishing rights to a “market” (even one limited to operators owning vessels flagged in a given member State) was considered by many actors in the policy as a sign of an “ultraliberal” socio-economic model, and opposed on ideological grounds. In other cases, the national administrations responsible felt that TFCs would remove their power and influence and this would turn upside down a tradition of paternalism. Others clearly declared that their objective for fisheries management was led by “social engineering” incompatible with free market considerations. These considerations are not likely to disappear any time soon. In some specific cases, opposition came from fear that the TFCs, even if proposed only at national level, would actually be extended to

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EU level as a result of a possible case in the Court of Justice, based on the case law of the Agigate ruling. On the other hand, the opposition was not unanimous. A number of Member States actually supported the proposal, and so did some MEPs in Parliament. The European industry was very divided, and not only along national lines: in the larger fishing Member States, different positions had to be combined, and even different regions held opposite views. For example, in the case of Spain the regional fisheries minister from Galicia was in favor, but the regional minister from Andalusia was against, curiously for fear that Andalusian fishing rights could be bought by Galician operators. The support to TFCs was, albeit in a minority, very strong and also based on a variety of arguments, and notably on its demonstrated merits to favor economic self-sufficiency and rationality. This confirms something that is very important for future policy debates on the question: that the use of rights-based management is extremely divisive, and although short of majority support, it also enjoys many favorable views around Europe. While its universal application seems out of the question in the foreseeable future, its partial application when and where Member States and the industry would agree seems an option worth exploring. We will come back to this question in Chapter 14.

The experience of third countries The experience of a number of third countries on the use of RBM is extremely interesting as a source of inspiration. Let’s see some of the best-known cases. The US case According to the catch-share policy in the US, part of the catch – or a share – of a species is allocated to individual fishermen or groups. Each holder of a catch-share must stop fishing when he reaches his limit. In most cases, fishermen can buy/sell or lease shares in a given year. This allows them to plan their fishing around the weather, markets, or other considerations

and allows other fishery-dependent businesses to plan more effectively. The catch-share system is voluntary. Catch-share programs are just one management option regional fishery management councils can choose to meet their management objectives. Catch-shares are not required and are not appropriate for every fishery.1 Regular evaluations of the catch-share systems of the US are carried out. They consistently show that the expectations for economic performance are met. Capacity of active vessels is reduced, prices have improved, average revenues per vessels have increased, and the season length has been restored in fisheries where effort control had been required to spread out landings and avoid early closures. However, the system has distributional consequences, in particular the consolidation of quota use and the accumulation of ownership (Brinson and Thunberg 2016). Iceland The Icelandic case is of particular interest for one main reason: fishing is the bread and butter of the country, and that implies that they absolutely have to get their fisheries management right: their economic survival largely depends on that. Iceland applies a very complete ITQ system to manage its quotas. Today, Iceland’s fishing industry is one of the most competitive and profitable in the world, and has remarkably recovered from the effects of the financial bubble. This has required losing employment, closing down factories and scrapping vessels, but has allowed an increase in profitability, in particular for the enterprises dealing with fish processing, less affected by the high costs of fuel and license fees (Gunnlaugsson and Saevaldsson 2016). As in the Norwegian case, the increases in profits may not be attributed entirely to the ITQ system, but it is the ITQ system that has allowed the concentration of the activity in the hands of the most competitive. The Icelandic system is led by the need for economic efficiency. However, this does not 1 www.fisheries.noaa.gov/insight/catch-shares/

The missing elements of the 2013 Policy reform mean that the system is socially blind: on the contrary, the system allocates 17% of the fishing opportunities for small coastal communities based on small-scale fishing. This is an extremely interesting example of how an ITQ system can indeed combine two different objectives: a main one geared up to economic efficiency, and another one with a clear social objective in mind. This is an example that the EU policy should bear in mind. Norway RBM have been applied in Norway on a gradual basis, with an increase over time of the number of vessels and fisheries involved in the system. According to Hannesson (2013), the process was gradual because of significant “ideological” opposition to this kind of system from certain quarters, as well as from other operators as a result of the observed changes in the number, location, and type of vessels benefiting from the system. The system has produced an enormous increase in the value of landings per fisherman. This conclusion has been nuanced by Heen (2014) in the sense that the increase in profitability cannot necessarily be associated to the ITQ system alone. In any case, it is significant that, despite the above hesitations, the system has been gradually extended to more operators (by 2013 Hannesson considered that ITQs covered the bulk (75–80%) of Norwegian fisheries), without any significant backlash: once the system was established, it has continued being extended without major calls for a return to the old system. New Zealand The ITQ system established in New Zealand as of 1986 is one of the best known and better studied and evaluated in the world. Mace et al. (2014) offer a very complete evaluation of how the system has operated and delivered on policy goals. The above authors recognize that at the time of the initial design, a number of issues were not adequately considered and subsequent efforts to address these issues have been challenging, many not yet fully resolved. They conclude

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that the outcomes for fisheries science, stock status, multispecies management, ecosystem effects, and fishing industry accountability have been mixed, although mostly positive. New initiatives to further improve the system continue to be researched and implemented. Overall, the authors believe that the positives considerably outweigh the negatives, and the initial design has proved to be a system that can be built upon. Interestingly, and like in Norway, the number of species subject to ITQs was initially limited and grew only gradually over time (Bess 2005), so the system is not a one-off effort to manage all fisheries, but a system gradually extended and improved over time. Within New Zealand there is growing evidence that their Quota Management System has lessened the ecological consequences of the incentive for fishers to “race for fish” at the same time that the industry has experienced substantial growth in the volume and value of production (Bess and Harte 2000). The security of tenure in access to the fisheries resources allows ITQ holders to develop high value products that improve their competitiveness in overseas markets. The system has also been an effective means for the Government to meet its obligations to the ¯ Maori under the Settlement Act 1992 (Bess 2001). This implies that the system is amenable to taking into consideration the special rights of certain communities within the countries concerned. A remarkable feature of the New Zealand system is its total absence of social objectives: all quota holders exploit their shares as they see fit. This implies, for example, that the fishing rights ¯ held by the Maori are not subject to any particular management system, or any protection ¯ to small-scale fishing. In fact, the Maori exploit their fishing rights largely by leasing those rights to other fishermen, including foreign large-scale fleets. This is another important point for reflection: there is an alternative to the active protection of the small-scale interests: providing them with a fair allocation of the resources and allowing them to exploit them as they wish. We will discuss this question below.

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Some lessons learned Overall, ITQ programs have been incorporated into many marine fisheries management strategies for 30 years, but their implementation and utility remain controversial. According to a study in 2008, eighteen countries used ITQs to manage several hundred stocks of at least 249 species. ITQs were adopted in these countries for many reasons: overcapitalization, economic gains, safety concerns for fishers and political change. The implementation of ITQs did not translate into consistent changes in stock biomass. This suggests that alternative or complementary measures are needed to sustain those fisheries, such as combining ITQs with more effective total allowable catches, better enforcement and monitoring, and implementing aspects of ecosystem-based fisheries management (Chu 2009). This is also important to bear in mind: ITQs seem to be much more a system of economic rationalization of the fishery, but it is not a system to manage biological resources in its own right. This is important to remember because it shows that RBM systems are neither a closed, fixed system nor a one-size-fits-all approach. On the contrary, the experience of the three countries referred to above shows that RBM is a methodology that: (i) can be designed to deliver different goals, according to the political/economic priorities of the governments in question; and (ii) even if getting the initial design right, RBM is amenable to continuous evaluation and improvement, so the initial scheme can always be improved over time on the basis of the on-going experience. This adaptability is in sharp contrast with the system of management and allocation established under the CFP, which clearly lacks adaptability: the stocks covered and their management and allocation have been fundamentally unchanged since 1983. All experiences show that ITQs are extremely variable in design and objectives, and that different countries and communities will react very differently to the idea and its implementation. A comparative study of ITQs in the US and Canada showed the critical importance of

decisions about transferability of quotas and the political and historical context, and preexisting industry structure, to the acceptance and performance of ITQs (McCay et al. 1995). This certainly explains the different attitudes about this instrument from different Member States, and from different regions and fleet segments within them. This, in any case, clearly indicates that one-size-fits-all ITQs in Europe cannot work. Much more differentiated and partial approaches should be necessary to adapt any ITQ system to the different political and historical context. Importantly, the implementation of RBM is not incompatible with measures of “social engineering” to protect certain collectives from open competition. In fact, most such systems around the world consider different ways to protect certain interests; from the allocation of resources to tribes or first nations in North America, to the reserve of around 17% of quotas to small-scale fishing by rural communities in Iceland, there are many ways in which the rights of certain interests can be protected. The only case where no such “social engineering” takes place is that ¯ of New Zealand, where in fact the Maori community owns a very significant part of the country’s fishing rights that they are free to sell if they wish. This social engineering is not always successful, and certain regions and collective interests generally tend to lose out regardless. In addition, in a number of systems the high value attached to the fishing rights makes it difficult for newcomers to invest and buy new fishing rights, thus undermining generational change. For this reason, all systems are dynamic and evolve gradually as problems come up. Finally, it is also important to mention that a number of RBM systems around the world are associated to different forms of cost-recovery. While in New Zealand the industry pays for research and control, and in NW Canada the industry pays between 7% and 10% of their profits to fund the management system, in Iceland the industry pays a fee (up to 6% of the value of catches, and 3% of the value of exports) that goes to the state’s coffers. And

The missing elements of the 2013 Policy reform this fee does not cover the cost of observers on board, also paid for by the industry. Under all these models, the high profitability of the fisheries activity under RBM allows for the industry to pay all or at least part of the cost of the management system, thus reducing the burden on taxpayers.

The experience of some EU Member States ITQs or similar systems have been applied in a number of Member States, to manage all or part of their national quotas. The two better studied cases are those of the Netherlands, that established ITQs in 1985, and Denmark that introduced the system in 2007 although there are also other cases. The Dutch case Among EU Member States, the most important experience is that of the Netherlands that introduced an ITQ system shortly after the inception of the CFP. This system is very well-analyzed by Salz (1996) and Van Hoof (2013). Interestingly, the transferability of the quotas, initially established in 1975, was introduced following the evidence that the system was not being effectively enforced and that a de facto, non-transparent market of quota transfers was actually developing. The ultimate motivation was the improvement of quota compliance and economic performance, with open and transparent markets, and the co-management groups established between industry and government were considered a key of the success of the system. It is important to draw a comparison between this and the also de facto and non-transparent market in fishing rights developing under relative stability through foreign investment and intra-company transfers and swaps. The result of the implementation was a rapid improvement in the profitability levels of the industry, with a reduction of input of capital and labor and a more efficient and sustainable use of the resource. Van Hoof (2013) further indicates that the limits to transferability, such as those proposed by the Commission in its

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initial proposal for TFCs in the last reform (EU 2011) would defer economic efficiency in the long run. The system also had its downsides: in particular the reduction in the size of the fleets. However, this was the case also in other fleet segments in other Member States not subject to ITQs, and it is not warranted that the fleet reduction was due mainly to the implementation of the ITQ system. In addition, the loss of activity observed in certain ports as a result of their fishing rights being purchased from other ports is also a typical effect of ITQs, but in the Dutch case this was compensated by alternative jobs from other sectors as well as by fish processing of fish coming from abroad. It is important to underline that the Dutch system is based on the marketization of catch rights, not on privatizing fish ownership. This is important because one of the main difficulties encountered in the discussion on the Commission proposal on TFCs was the legal and political opposition in some Member States to what they considered a “privatization” of fishery resources. Other EU cases The Danish ITQ system, introduced in 2007, is analyzed by Anderson et al. (2010). The findings confirm that resource rents are larger under an ITQ system than in fisheries regulated by various form of entry restrictions and effort regulations. However, this improvement is not neutral: evidence shows that such a system favors larger vessels over small ones. This, however, seems to be a result of the design of the system, where economic efficiency considerations prevailed over social engineering arguments. In Sweden, the introduction of an ITQ system for demersal fisheries has been subject to a study on its consequences. Waldo and Palrud (2013) estimated the reduction in the number of vessels between 30% and 50%, with an important increase in profitability, allowing for competitive wages and future contribution of the industry to the costs of management. The design also allowed for special measures to protect small-scale fleets.

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The above examples are very illustrative, but both cases underline the importance of adapting the design of the system to local circumstances. No “cut and paste” is possible.

Rights-based management and discards A very important question to analyze is the contribution of ITQs and similar systems to address the challenges of a non-discard policy. The experience in this regard is extremely useful. The European Parliament commissioned a very illustrative study on this topic (Anon. 2014). This study confirms that nations that have adopted rights-based management generally have comparatively low discards. The reasons are obvious: ITQ systems allow for real-time purchase of the quotas of any choke species that the individual operators may encounter. ITQs, in this regard, maximize the efficiency in the use of national quotas and minimize choke species effects. As an example, in an interesting case study on the groundfish fishery in British Columbia, discard levels declined after the introduction of observers on board. When ITQs were additionally introduced, total discard fractions declined for most species (Branch et al. 2006). Despite these evidences, the relationship between RBM and the implementation of the landing obligation was not discussed in the process of adoption of the reform. The Commission did make the case repeatedly, but the RBM and the landing obligation debates took place separately without enough discussion on their relationship. Any attempt to link both issues met opposition on the grounds that the CFP already has a system of exchanging quotas: the quota swap system. However, given the limits shown by this system (see Chapter 6), this remains a pending question. Is there a market of fishing rights in the EU? Fishing rights can be exchanged by Member States under the quota swap system (see Chapter 6). Whether this would correspond to a real “market” of fishing rights, that is another

question. Indeed, the quota swap system lacks many of the features of an open EU market like those operating under the single market legislation. In particular, quotas are swapped among national administrations only, not by particulars, and in the form of swaps as in a barter economy. And, especially, the system has no transparency. In Chapter 2 we referred to the application of the principles of the internal market to EU policies, and how this includes fisheries policy. The European Commission insists on the high economic value of implementing the internal market through: increased competition, increased specialization, larger economies of scale, allowing factors of production to move to the area where they are the most valued, thus improving the efficiency of the allocation of resources.2

This raises a simple, straightforward question: does relative stability contribute to achieve the EU internal market? In this section we will try to argue that it represents an obstacle to the achievement of the internal market, in particular as regards the idea of “allowing factors of production to move to the area where they are the most valued.” Overall, there is no such thing as an EU market of fishing rights worthy of that name. However, based in the four freedoms within the EU, it is possible that foreign operators buy vessels and their associated fishing rights in another Member State. This practice is very common and means, for example, that certain vessels flying the flag and exploiting the quotas of a Member State can have ownership, crews and landing and marketing sites in another Member State. Attempts to prevent this through national law, as in the famous case of the UK’s Merchant Shipping Act of 1988, were annulled through landmark rulings of the European Court of Justice: the well-known cases Agigate and Jaderow. In other cases, this practice may be limited by national legislation requiring different conditions to foreign ownership to 2 https://ec.europa.eu/growth/single-market_en/

The missing elements of the 2013 Policy reform ensure the economic link between the quota holders and the Member State concerned, as established in the Jaderow case law. In some other cases, the practice is made difficult by requirements of affiliation of all crewmen to the Social Security of the Member States where the vessel is flagged, regardless of their EU nationality. Although there is little information about the extent of this “hidden” quota market EU-wide, the question can be examined based on the best-known case: the so-called “quota-hoppers” in the UK: the Spanish and Dutch interests having bought UK-flagged vessels and UK quotas. Despite the high political profile of this kind of investment, a study of the European Parliament has shown that the impacts in the UK were not very significant, in terms of employment for example (cited in Hatcher et al. 2002). From an exclusive economic perspective, there are good economic arguments to grant fishing rights to other nations (Munro et al. 1985, 1989). Foreign operators investing in UK fisheries place a greater value in quota assets than did the former UK owners. Hatcher et al. (2002) argue that if the benefits from resource rental charges and/or access fees outweigh any cost in terms of lost domestic production and employment then it is rational (if not always politically acceptable) to use one’s own human and capital resources elsewhere in the economy and to sell fishing rights to foreign currency. The authors also conclude, crucially, that: While this could result in increased efficiency . . . there would undoubtedly be distributional impacts.

That is the real problem of an EU-wide market of fishing rights: while it would undoubtedly contribute to economic rationality, it is the distributional impact that makes it so politically difficult, in a policy shaped in the late 1970s on the basis of distributional difficulties. Different authors (Symes and Crean 1995; Schweiger 2010; Penas Lado 2016) have stressed the crucial importance of the distributional aspects in the birth of the CFP (the search for national interest rather than the common good) and how these have continued to shape the policy

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up to now. The fact that the CFP, after more than 30 years, has not been able to evolve along the lines of other economic sectors in the EU in developing a real internal market is a clear sign of backwardness of this policy from the point of view of European integration. Having clear and transparent information about this quota swap system may be a very useful tool to determine to what extent the national quotas under relative stability have been exchanged through this non-transparent market, and what is really the magnitude and importance of the “economic link” between Member States and their national quotas. Although there may be certain reticence to do this (the exercise would show up the level and the Member States withholding unused quota without clear justification) the potential contribution to this idea to facilitate the implementation of the landing obligation should be a powerful motivation for it to be explored and developed. Some ideas are presented in Chapter 14.

Small-scale fisheries: no specific policy The issue of small-scale fisheries has always attracted a lot of attention in all fisheries management fora. In the EU, the discussion about some kind of special treatment for this sector features every time the policy is reformed. In practice, a certain special treatment is already granted to this sector, notably in the form of exemption from a number of EU obligations that apply only to larger vessels. For example, certain obligations under the control regulation (1224/2009, EU 2009a), such as the electronic logbook or the vessel monitoring system only apply to larger vessels. In addition, under the new structural instrument, the European Maritime and Fisheries Fund (EMFF) (EU 2014), they enjoy a higher aid intensity than larger vessels, and Member States are under an obligation to elaborate a specific strategic program for this part of the fleet, to ensure they are not squeezed out of

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the structural financing under Regulation 508/ 2014 (EU 2014). Small-scale fishing seems to be everybody’s priority, from national and local authorities to NGOs. Yet, this is clearly not enough, as the small-scale sector is generally not doing well economically and continues to be largely excluded from investment. Recent evidence on the economic performance of EU fishing fleets shows that despite the overall improvement in the economic performance of EU fishing fleets, most of the fleet segments that are making losses are small-scale (EU 2018a). This is clearly a cause of concern. The theoretical political priority they enjoy does not translate into a positive trend in their levels of profitability. In Europe, they are largely lagging behind more industrial sectors. They are often squeezed out from financing under the structural funds and innovation in the sector is almost inexistent. The issue was debated in the reform process. However, the final text of the basic regulation 1380/2013 does not contain specific provisions or a separate regime for small-scale fishing. Only in the context of the structural policy, the new structural fund, the European Maritime and Fisheries Fund, EMFF (EU 2014) contains certain elements of positive discrimination in favor of these sectors, consisting of higher financing levels and the obligation for Member States to present a specific plan for their artisanal sectors and secure priority financing for them. This was done on the initiative of the European Parliament and met considerable opposition from Council, notably because Member States wanted to have free hands on the priorities for spending, and because certain Member States (i.e. the Netherlands or Belgium) do not have a small-scale sector. The question is important because there is a significant trend toward the consideration of small-scale fishing as being more sustainable. NGOs are well-known for favoring this type of fishing and academia often expresses support for this view (Pitcher and Cheung 2013). When analyzing the merits of small-scale vis-à-vis large-scale fishing we must consider at least two aspects: (i) those related to

sustainability and impact on the environment; and (ii) those related to economic and social equity. Both are important. In this document, however, we concentrate on the first one, since the question of social and economic equity is much more a political question where different national governments within the EU, and beyond, have entirely different (but equally legitimate) views, aspirations, and objectives.

Defining small-scale fishing: more difficult than it seems One of the problems encountered when discussing issues related to small-scale fisheries is the definition of this sector. The EU, traditionally, has defined the sector through the size of vessels and the gear they use. Small-scale are vessels less than 12 m in length and that do not fish with trawl gear. This definition, however, has always been questioned by many and, during the negotiation of the 2013 CFP reform, a lot of time was devoted to discuss this very issue. Critics of this definition argue that many vessels can be longer than 12 m and still have many of the characteristics of small-scale fishing, such as coastal activity, social structure based on the owner/skipper model, catching local fish for local consumers, low capitalization, and so on. On that basis, alternative ways of defining small-scale have been proposed, including parameters such as the time of fishing or the structure of property. In the end, however, the advantage of the under-12 m, non-trawler definition is its great simplicity and its easiness to control and manage. A vessel size is simple to measure and is stable: it does not change over time, and the trawler structure is also stable and not easy to modify for different gear. This makes this definition very easy and stable. On the contrary, all other criteria are complex and crucially, non-stable. It is easy to see how complex it would be (in a policy already considered too complex) having to check a vessel’s individual fishing time and structure of property to decide whether it would be entitled to a special measure. As for stability, property, and fishing

The missing elements of the 2013 Policy reform time can change, and so would the vessel’s qualification for certain measures. Not surprisingly, the traditional definition has survived to this day.

What small-scale and large-scale can provide At global level, FAO considers that strengthening small-scale fisheries is crucial to empowering the sector’s operators to secure their livelihoods and to contribute to food security nutrition and rural poverty reduction (FAO 2014). From a European perspective, small-scale fishing can provide a series of well-known advantages: • It is more intensive in terms of employment, as shown by the annual Commission report on the economic performance of EU fleets (EU 2018a). • It can provide consumers with fish of exceptionally high freshness, quality, and variety. • It can interact positively with other economic sectors such as tourism. The prospect of finding fresh, local fish in local restaurants constitutes an important added value in coastal touristic areas. • It contributes to fix the population in small coastal towns that may otherwise tend to be deserted for lack of economic opportunities. • It generally provides women with a more substantial role, notably in shaping the management by local communities. All these advantages are true. However, large-scale fishing also has a certain number of advantages: • It can exploit resources in more distant, rough fishing grounds where the small-scale sectors could never accede. These resources are either exploited by large-scale vessels or are not exploited at all. • Contrary to extended belief, some large-scale fleets are based in small coastal towns with little or no economic alternative. Ports like Concarneau (population 20 000) in France or Bermeo (population 17 000) in Spain are the base for the large-scale tropical tuna vessels. Burela (population 9000) in Spain is the base

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of vessels that operate in distant Irish waters. This clearly shows that long-distance fleets are often based in relatively small ports well outside metropolitan areas. In all these cases, the protection of local communities would imply the protection of these large-scale sector vessels. • It can provide certain economies of scale that can allow for productivity gains, as demonstrated by the recent Commission evaluations of the economic performance of the European fishing industry (EU 2018a): long distance fleets enjoy a very healthy 15% of net profit margin. Trends are positive (not only in economic performance but also in catch per unit effort [CPUEs]) and net profits have increased in recent years. • Experience shows that large-scale fishing tends to be more strategic and amenable to rationalization, long-term planning and selfmanagement, and can assume costs of management, thus reducing taxpayers’ intervention. • Certain large-scale fisheries are among the best managed and most sustainable in the world. The fishery for Alaskan pollock is the best example: conducted by large industrial vessels, it is fully sustainable and includes a number of advanced measures of by-catch avoidance. The above indicates that the two sectors are not mutually excluding. In fact, the conflict between the two exists only in a certain number of areas of overlap. Resolving these areas of overlap seems the best way to promote small-scale fishing, rather than proposing the suppression of large-scale fishing altogether, presenting them as “monster vessels”, as some NGOs advocate.3

The comparative impacts of small-scale vs. large-scale fishing The debate on vessel size is often accompanied with allegations that small-scale fishing is more selective, or implies fewer discards, or 3 www.greenpeace.org/archive-international/en/ campaigns/oceans/Fish-Fairly/boat_list/

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has a lower impact on marine ecosystems, or even that it is more desirable economically or socially. Are these allegations true? This analysis is made very complex by a number of factors that go beyond vessel size. Some of these factors are: • The gear used. Many of the effects on the environment largely depend on the gear used. And, although certain gear are more typical of large vessels, they can also be used by small ones. Trawl is the best example: while trawl fishing is generally associated with large vessels, there are also many examples of trawling activities by small-scale vessels such as the small-scale dredges to fish for bivalve molluscs or the UK’s “super under-10s”. • The areas of fishing. Sometimes artisanal boats operate in fragile coastal ecosystems. The activity of the French gangui (a small-scale trawl) in Mediterranean seagrass beds (important breeding areas for many species) is an example among many. • The distance from the base port, with implications on fuel consumption and on impact of coastal zones of high biodiversity. • The different end markets of the catch concerned, that can change substantially the proportion of the catch retained on board or that discarded as by-catch. • Ultimately, sustainability is about the total fishing pressure exerted on a stock, not a question of how many vessels are fishing and of what size. All these elements must be studied carefully to avoid simplistic generalizations that tend to consider small-scale fishing as “sustainable” as opposed to larger scale fishing. A very variable picture In terms of environmental impact, small-scale sectors can also be very detrimental for the environment: their focus on small, juvenile fish in many cases, their activity within coastal areas that are often breeding grounds for many fish species, the high density of their activity in coastal areas, etc. are all factors that can generate a very substantial impact on

the environment where they operate. Often enough, the rather “social” perspective that has often dominated their management can result in levels of activity that are more difficult to rationalize (and reduce) than those of the larger fleets. The difficulties to reduce fishing pressure and improve selectivity in the Mediterranean (comparatively dominated by small-scale fishing) is perhaps the best demonstration that small-scale does not necessarily mean sustainability or low environmental impact. Overall, it is difficult to conclude as a general point that small-scale is “sustainable” while larger scale is not, as some NGOs like to describe. Apart from the fundamental point that the sustainability of a fishery depends from the amount of fish removed and not from the number and size of vessels responsible for the removals, small-scale fishing represents a very important social component of fisheries management, which one can defend and promote on very many legitimate grounds (employment, fixation of local populations and preservation of cultural values in remote areas, provision of local fish for tourists, etc.) but these arguments do not require the simplistic consideration that small-scale fishing is either more sustainable or ecologically sound.

What can we learn from aboriginal fishing rights? In several countries around the world there are specific policies focused, if not on small-scale fishing, at least on fishing by traditional communities that tend to use traditional fishing methods as a way to preserve their cultural heritage and lifestyle. Although these can vary ¯ considerably, the cases of the Maori in New Zealand, the First Nations in Canada and the tribes in the US are good examples of policies where a part of the fishing rights is reserved for fishing by these local communities. Although there is no equivalent in the EU to these communities, the experience of managing two different worlds in the same system is worth looking at. ¯ The model of the Maori in New Zealand is very particular in that they chose to operate as

The missing elements of the 2013 Policy reform any other quota owner, as we saw above. But the US tribes and the Canadian First nations offer a number of experiences where the same stock is exploited under two separate regimes: (i) one for the aboriginal communities, often using traditional fishing methods and managed following their own social traditions; and (ii) another for commercial operators using modern fishing methods and management systems. What is particularly interesting is that the two systems can be used for the same stocks, whose TACs are divided in quotas for the two kinds of community. The main lesson that can be drawn from these examples is that a good management system can incorporate two entirely different regimes, that the fishing rights can be allocated to these different regimes in a meaningful way ensuring the overall responsible management of the resources, and that this is in no way seen as discriminatory or unfair.

The fisheries control system In the 2013 CFP reform, the control system was not discussed, since a new control regulation had been adopted a few years earlier (2009a), so it was considered unnecessary to reopen a recent policy decision. However, it is obvious that the reform of 2013 introduced new policy elements that were not considered in the 2009 control reform. Despite its very important improvements, the new control regulation of 2009 has quickly become somehow obsolete, for a number of reasons: • The regulation was adopted just before the political drive toward CFP reform started with the 2009 Green Paper (EU 2009b) and still represents the “old approach” to policy making. • This regulation was the last important one adopted before the entry into force of the Lisbon Treaty and co-decision for the CFP. The regulation therefore represents what Council wanted, not what the two co-legislators want under co-decision now. This is very

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significant, because the European Parliament has demonstrated to have very different (and generally more ambitious) positions on fisheries control than Council. • The proposal is not adapted at all to some new features of the CFP and, in particular, to regionalization. For, at least, the above reasons the European Commission has introduced a proposal for a reform of this policy, with the aim, inter alia, of adapting it to the reformed CFP (EU 2018b). This proposal reflects very well the position of Member States’ administrations, that can be summarized as “evolution, not revolution”, implying that such administrations are averse to dramatic changes and to very creative ideas, and prefer instead to introduce rather limited changes in the existing framework. This is very important to bear in mind. If the CFP is largely conservative, as we saw in Chapter 1, it is all the more so in matters pertaining to fisheries control, a national prerogative of national administrations. The possibilities to innovate policy approaches in this area are particularly low.

The dichotomy between EU policy and national control The CFP is an exclusive competence of the EU. However, its control is an exclusive competence of Member States. This dichotomy is one of the sources of what has long been considered a significant weakness of the CFP: the insufficient control of the rules. This dichotomy is difficult to understand outside the EU, where it is generally believed that those who manage the policy should also be those responsible to enforce it. In Europe, control is still a full competence of Member States, and these are still very adamant in wanting to keep this activity under national competence. Yet, national competence to control a European policy is in itself a contradiction, and a source of inefficiency. In addition, as happens in other policy areas, the necessary cooperation among national administrations on control matters is still riddled with reticence and lack of trust.

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A report of the Court of Auditors in 2007, denouncing the insufficient control of the CFP, was one of the main drivers of the ambitious reform of the policy proposed by the Commission two years later. After one new control regulation, an important investment by the European Fisheries Control Agency (EFCA) and increased control means through EMFF, the situation continues to be unsatisfactory, as summarized by a new report of the European Court of Auditors (EU 2017): The Member States were not yet carrying out all the required controls, and that the control system itself needed to be updated. There were weaknesses with the verification of the accuracy of their fleets’ capacity, with the control of small vessels, with the reliability of reported catch data and with the equal treatment of fishing operators in the application of sanctions.

In other words, despite significant progress, the poor control continues to be a fundamental weakness as well as an important embarrassment for the CFP. As the control regulation of 2009 is currently under the five-year review, it is opportune to revise certain aspects where progress has been slow or non-existent. In particular, the issues of the harmonization of sanctions, and the powers of the European Fisheries Control Agency must be discussed. But other possibilities must also be explored, such as for example the use of industry-based self-control mechanisms, and also the possible contribution by the industry to the very important costs of fisheries control. Ultimately, the challenge of controlling the main new element of the reformed policy in 2013 (the landing obligation) will certainly be a test case of the ability of the control system of the CFP to face up to the challenge.

Harmonization of sanctions? The harmonization of fishery sanctions among Member States is an issue as old as the CFP itself. Even though the value of such harmonization is recognized by all, in terms of ensuring a real level playing field among national administrations, it has never been

possible to make any progress in this regard since national administrations consider this a question of national sovereignty. It is also true that although most sanctions for fisheries infractions are considered administrative penalties, some of them in at least a number of Member States pertain to penal law. While Member States may be ready to harmonize administrative sanctions, they are not ready to do so in penal law. Having an effective system of fisheries sanctions is not only necessary as an instrument of the CFP for its own sake, but it becomes even more important in the context of the current IUU policy, where the EU requires that the countries exporting fish to the EU market have, inter alia, an effective system of deterrent sanctions for fisheries. On the occasion of the adoption of the control regulation in 2009 (Regulation 1224/2009) there was no question of including any harmonization of fisheries penalties. However, it is to be borne in mind that this regulation was adopted just before the entry into force of the Treaty of Lisbon, that is, it was decided by Council alone. In the context of the on-going revision of that regulation, the picture changes dramatically since any amendment of Regulation 1224/2009 will have to be done under co-decision, and one can certainly expect the European Parliament (which tends to have strong views on control and enforcement) to take a much more positive view of harmonizing sanctions than Council ever had in the past. There can be ways of addressing the strong opposition of Member States to the harmonization of penal law in fisheries policy. A strict harmonization would not as such be adequate, because the same sanction would have different meanings for different fleet segments and for different Member States with different standards of living. However, some common criteria could be established, such as sanctions representing a certain percentage of the value of the catch. That is, the proportionality of the penalty taking account of several parameters could at least be established. And, ultimately, the possibility of a recommendation by the

The missing elements of the 2013 Policy reform Commission, that would not be legally binding but would have an orientation effect, could also contribute to a better harmonization. This question is important because nonharmonized sanctions are a source of mistrust among Member States, and do therefore contribute negatively to the necessary trust building that this document strongly advocates as a precondition for a simpler and more collaborative policy governance.

Enhanced powers for EFCA? This is another very important question for the future of the control of the CFP. EFCA, established in 2002 (EU 2002), was conceived as an instrument to ensure coordination of the national fishery control system, but not to establish a fully-fledged EU inspection system. However, there are reasons to justify a possible re-thinking of this state of affairs: • The experience of EFCA over the last 10+ years, showing that, although the coordination of inspections among national administrations has been a big success, there are areas where progress has not been made, notably the follow-up of the detected infractions by the Member States’ legal systems. • The precedent of the establishment of the European Coast Guard facility in 2016 (EU 2016), notably to respond to the challenge of immigration in the Mediterranean basin, has shown that the level of integration and cooperation of Europe’s national maritime surveillance systems has reached a point that not so long ago was unthinkable. In this context, the idea could be that EFCA inspectors would have the status of Community inspectors and would have the power to establish infraction reports that Member States’ authorities would subsequently have the obligation to follow up in national law. If combined with harmonized sanctions, this would create a real level playing field that could eventually build up the level of trust that, in turn, could allow more creative systems of control, simpler, and more adapted to particular local circumstances. But this level playing

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field would not be based on an excessively prescriptive legislation, but rather on the idea that different and simpler control systems could exist in different areas while avoiding the impression that such systems mean getting one particular fleet segment or Member State “off the hook” in terms of control. The CFP is today nowhere near admitting this possibility. But today the CFP has many features that would have seemed unthinkable not so long ago. If the EU wants to advance in a simplified yet effective control policy, including a much higher involvement of the industry itself, the idea of these enhanced powers for EFCA should not remain forever a taboo.

The control of the landing obligation: a test case The introduction of the landing obligation represents a huge challenge for the CFP, and one where the very credibility of the policy will be at stake. Controlling the level of discards on board is difficult and costly, and almost inevitably requires monitoring of the activity on board the vessel. No amount of control on landings can provide the necessary evidence to effectively enforce a non-discard policy. The methodologies available for on-board monitoring are of two main types: observers on board and CCTV cameras. The control of the EU landing obligation has been subject to important methodological development by EFCA. Yet, the current level of control of this measure is generally considered very low. There can be different explanations for this, but the one that looks more obvious is that, in the early stages of the implementation, when the rules are still under development and when the economic effects of this policy on the industry are still to be fully evaluated, most control authorities of Member States, if not all, apply a prudent policy of warning but not necessarily sanctioning the observed infractions. This does not seem to be a problem for the time being, but it is just a question of time that it will become so. A policy on discarding (a very ambitious one in fact, if we compare it with

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that of other countries) can be easily discredited if it is seen as not being seriously enforced in practice. This could be a very serious source of embarrassment for the CFP in the not so distant future, and measures should be taken to address it. As we saw above, a serious enforcement of a discard ban requires monitoring on board. The CCTV cameras, strongly advocated by Denmark in the last decade can be an effective mechanism, but their use is still limited, despite the quota top-ups applied in certain TACs to encourage their use. Strong opposition by some Member States still stand in the way of their extension to many more fisheries. In addition, technical difficulties remain to be solved as related to the use of CCTV cameras in fisheries with high diversity, where the small sizes and large number of species would make species identification through TV imaging very difficult. As for observers, these have been used only in a few specific circumstances, such as for example in deep-sea fisheries, and also in certain international fisheries (the Northwest Atlantic Fisheries Organization [NAFO] is the best example) but in these cases the observers have been the result of international agreement. Overall, if the landing obligation and, by extension, the whole of the CFP is to be credible, the EU will have to tackle, sooner or later, the question of the effective enforcement of this new policy. And, despite the best efforts by EFCA to develop methodologies; there seems to be no better alternative than either cameras or observers on board. These methods do not necessarily have to apply to all vessels, but at least it would be important that a significant number of them are seriously monitored, either as (i) a percentage of the total; or (ii) on the basis of vessel size; (iii) on the basis of the level of discarding; or even (iv) on those volunteering, in connection with some kind of incentive. The EU should not wait too much to resolve this question as a matter of fundamental credibility. As in many other instances, this question could well be subject to another test case, where a given fleet segment of fishery could lead the way in exchange for some kind of incentive.

The management system: is cost-recovery possible in the CFP? In certain countries the costs associated to the management of fisheries (notably research and control) are – at least partially – paid for by the industry enjoying the fishing rights. This seems to increase the sense of “ownership” and responsibility vis-à-vis a responsible implementation of the management system. The question is: is this kind of – at least partial – cost recovery a good idea worth developing for Europe? The question is inevitably linked to many others: if fishing quotas are a public property in Member States, should their exclusive users enjoy them free of charge? Many other activities where private interests enjoy exclusive access to public property are subject to payment of a canon: the concessions for the occupation of public land are subject to concessions against a canon in all Member States. Should fisheries be an exception? The costs of fisheries management have never been evaluated at EU level. However, this kind of analysis has been carried out in certain important fishing nations or provinces. For example, Arnasson et al. (2000) evaluated the costs of fisheries management as a percent of gross value of landings to be very high in Newfoundland, Canada (15–25%), very low in Iceland (about 3%) and more moderate in Norway (about 10%). This raises the question of the economic efficiency of the management system, and whether the same benefits could be obtained at lower costs. In this regard, the authors conclude that the lowest costs are found in the country having, arguably, the best managed fisheries, which implies that better management is possible with a lower cost for the taxpayer. For many years, the popular wisdom was that the European fishing industry was economically weak, so that the idea of taxing them further under a cost-recovery scheme would be fatal. At present, however, the economic situation of the fleets (though not all of them) is improving, as shown by the Commission’s recent reports on the economic performance of the European fishing fleets (EU 2018a). In particular, the resource rent

The missing elements of the 2013 Policy reform in European fisheries is increasing, and this means that European fisheries already produce a net benefit to society. In this scenario, the old wisdom must perhaps be revised, and the idea of some, at least limited cost recovery should not necessarily be seen as out of the question. There is also a potential link between the use of RBM (see above) and the possibility of applying cost recovery. The above study by Waldo and Palrud (2013) demonstrates how the implementation of rights-based management can produce the resource rent allowing for some cost-recovery to be implemented. In any case, the fact remains that the CFP is still very closed to this possibility and its legislation is sending a very clear message: the funding of science and control are important priorities but must be assured by the administrations, with a very high contribution from the EU. The new basic regulation stipulates that Member States are responsible for discharging these obligations (EU 2013, Articles 25 and 36) and the new structural instrument EMFF provides extremely generous EU public funding for those two purposes (EU 2014, Article 13). This has a positive angle, as mentioned above, but it also has a negative one: by putting so much emphasis on paying for control with taxpayers’ money, the opportunity for cost recovery seems to vanish as unnecessary. This question should be discussed eventually. Cost recovery in third countries A number of countries around the world have systems of partial cost recovery, that is, the industry pays a part of the budget dedicated notably to fisheries research. The best example of cost recovery is that of New Zealand. The introduction of a cost-recovery regime for fisheries services in New Zealand took place from 1994 onwards. This was possible following the establishment of the quota management system in 1986 based on individual transferable quotas that allowed for a considerable capitalization of quota holders. A critical review of this system by the industry reveals success in providing high-quality research largely funded by those that benefit

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from it, but only limited progress toward the objectives of increasing efficiency and accountability and devolving responsibility to stakeholders. The industry still requests greater public funding of marine research (although not as an alternative to industry’s paying its share); and improvement of government planning processes to provide clear linkages between fisheries-management needs and all required research, less research-provider influence, and use of the most appropriate funding mechanism (Stokes et al. 2006). Interestingly, there are no significant allegations of bias in the scientific advice toward the industry that finances it. Arguably, the property rights lead the industry to request the best possible advice to ensure long-term profitability of their investment, so that the incentive for advice that would privilege short-term benefit does not seem to be there.

Is self-control an option? Among other issues to examine, one is particularly innovative and worth exploring: self-control by the industry. Top–down control is expensive, largely ineffective and always burdensome and complex. The idea that the fishing industry will take care of controlling itself under certain circumstances is appealing, but its feasibility is in question. The idea in fact has been floated a number of times, but it never went far. The main reason is the importance attached to the notion of a level playing field and the lack of trust among Member States and fleet segments within them. If applied seriously, self-control by the industry could actually be stricter than that exerted by the authorities. The experience of self-regulation of fishing time in certain Mediterranean ports is encouraging: peer pressure ensures that these self-imposed rules are strictly adhered to. Arguably, much more so than the rules imposed by EU or national law. However, such rules apply today without any problem when they are locally applied and enforced, but when different fishermen from different ports share a resource in a common

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fishing area, such schemes are much more problematic. As in other examples related to policy governance, it would be a mistake to think always in terms of adapting all the policy to this alternative approach, under the principle of level playing field that stifles policy innovation. The CFP should be more open to experimentation. The idea could be to make self-control an experience applicable by a certain fleet segment in a certain area, where the industry and the Member States involved would agree to do so. The conditions for the experiment could be fixed in a way that would ensure that the industry concerned would not be considered positively discriminated, and would be closely monitored to study the effects of such scheme. In Chapter 14 we refer to the fundamental question of testing new policy options as one of the fundamental steps to make the CFP more adaptive to the emerging challenges. Delegated management? An idea that would be interesting to test is that referred to in Chapter 4 and applicable to certain fisheries in Alaska: the possibility of having certain rules (in that example, moving-on rules for by-catch avoidance) agreed by the sector but enshrined in legislation so as to allow private fishing cooperatives to penalize those who do not respect the rules. This is a creative combination: the rules are legally-binding legislation, but their management in practice, including enforcement measures, is delegated to the cooperatives. With all the necessary legal adaptations, this type of scheme could be one day tested in the EU.

Fleet policy: does it still have any sense today? Background This policy has always been controversial, complex and, arguably, also ineffective. Nominal fleet capacity has been reduced all across the EU (EU 2018c), and the current status of fishery resources in the EU indicates an improvement

that, one way or another, would have not been possible without a reduction of fishing capacity. Another question, however, is whether the reduction has really been the result of the fleet policy or the effect of the economic evolution of the industry, where gains in productivity allow for the same fishing with fewer vessels (and lower costs). What is clearer, however, is that the respect of the capacity ceilings of the current policy does not prevent the possible increase in capacity of specific fleet segments. As a result, some authors consider this policy ineffective, both in terms of its overall effect and also in terms of its inability to curb the important development of certain fleet segments within the overall ceiling of some Member States (Villasante 2010). Criticism of the ineffectiveness of the EU fleet policy has been around for a long time. Certain authors, already in 2000, considered that the reduction in harvesting capacity is less than the nominal reduction in physical capacity and that there is potential for harvesting capacity to increase, if the remaining vessels improve their efficiency (Pascoe and Coglan, 2000). Indeed, the Commission itself has not shied away from self-criticism in this respect. In addition to the above arguments from academia, it recognized that the nominal fleet capacity ceilings did not reflect a real level of harvesting capacity and, in addition, even had room for maneuver for increase (EU 2009b).

Fleet policy in the 2013 reform The fleet policy was necessary in the past, to revert the tendency to increase capacity in the first years of the CFP, instead of adapting it to available resources. The obligation to achieve objectives of fleet reduction was suppressed in 2002, and since then the fleet policy has been reduced to a general obligation to respect an overall capacity ceiling (high enough so that all Member States respect it without problem) and to ratchet down that ceiling when capacity withdrawal takes place with public money, to ensure that it is not rebuilt. This was combined with abundant EU funds for voluntary scrapping that has been phased out since 2017. The

The missing elements of the 2013 Policy reform question is: given that EU fleets have all been reduced, to levels that today appear to be much better in balance with resources (although with exceptions) and that the existing policy is in fact not limiting capacity (all Member States have voluntarily reduced capacity below their ceiling), is the fleet policy still relevant? As mentioned above, the biggest disappointment of the 2013 reform was the failure to make RBM compulsory at national level so as to replace the traditional fleet policy. This failure led to an alternative fleet policy consisting of an enhancement of the existing system since 2002. The only improvement was a greater emphasis on the need to evaluate properly the existing overcapacity by fleet segment, and the linkage of that evaluation with the access to certain structural measures under EMFF. On the contrary, the elimination of aid to scrapping after 2017 meant the loss of the only instrument left in the policy to remover overcapacity.

The US case The US system does not impose restrictions on fleet capacity, but it does not subsidize the fleet either. It is a system where the industry enjoys more freedom and fewer limitations, but where they have to be economically self-sufficient: the only public funds available are for scrapping, through the capacity reduction programs,4 but not for modernization and other actions as is the case in the CFP under the EMFF. The US system also includes a fishery disaster assistance5 to compensate for the losses incurred by natural disasters. Interestingly, these buy-out schemes have been proposed on different occasions, but always according to a bottom–up approach. This approach is very interesting because it removes any subsidy that might be considered as capacity-enhancing, so any possible irresponsible growth in fleet capacity will not be 4 www.fisheries.noaa.gov/national/funding-andfinancial-services/fishing-capacity-reductionprograms/ 5 www.fisheries.noaa.gov/national/funding-andfinancial-services/fishery-disaster-assistance/

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carried out on taxpayers’ money. It then offers the possibility of addressing specific cases of scrapping for those who volunteer on the basis of their own interests. This makes fleet adjustments an economic, not a political decision, an idea that was behind the Commission proposal for RBM. Sooner or later, this question will have to be re-discussed.

Are capacity ceilings limiting anything? Since the current policy is based on the principle of national ceilings in capacity, the obvious question is: are these ceilings really limiting anything? The reply is very clear in Figure 11.1: all Member States have nominal capacity levels that are below the ceilings, sometimes well below. This means that current capacity in Member States is not being limited by these ceilings. One can certainly ask the question of what is the added value of a policy on capacity ceilings that do not limit anything. Is there really a risk that, in the absence of such ceilings any Member States would actually increase its fleet capacity beyond that point? The key to the answer is the ban, introduced in 2002, on the financing of the construction of new vessels. With such aid, one could hold the view that there is a risk of the capacity being rebuilt. However, since the suppression of such aid, new vessels are to be built without public aid. In these circumstances, the on-going experience shows that such new capacity is simply not being built, and thus the risk of removing the ceilings seems in principle rather low. Another related question is that of the alleged influence of capacity ceilings on vessel safety. The EU has been criticized frequently for risking human lives through its limitations to increase capacity. As the argument goes, the fleet policy would limit vessel size and this would prevent fishermen from building larger, safer vessels. This is a completely unfounded allegation. Firstly, the EU fleet policy does not limit individual vessel size at all. Secondly, there is room for an increase in overall capacity if need be, as shown in Figure 11.1. And thirdly, it is a false assumption that smaller vessels are less safe. On

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100.00% 90.00% 80.00% 70.00% 60.00% 50.00% 40.00% 30.00% 20.00% 10.00% BE BG CY DE DK ES EE FI FR EL HR IR IT LT LV ML NL PO PR RO SI SE UK TOT

0.00%

GT

KW

Figure 11.1 Fleet capacity by Member State as a percentage of the total national capacity ceilings. Source: EU

(2018c).

the contrary: a very interesting report by the US Coast Guard on fishing vessel fatalities shows how the rate of accidents per 1000 vessels increases with vessel size, to reach a maximum for vessels between 60 and 70 ft6 (Dickey 2008). That means that small-scale vessels are actually safer than mid-sized vessels. The reasons are also specified in the above report: mid-sized vessels, unlike small-scale ones, venture farther away from the coast or in worse weather conditions, thus actually taking more risks.

Is there a case for fleet policy? The nominal capacity of European fleets has been diminishing for the last 30 years (Penas Lado 2016, chapter 5). Today, all European Member States have overall capacity ceilings comfortably within the capacity ceilings established by the CFP’s fleet policy as we saw above. However, this does not mean that the real capacity, understood as the “ability of the fleet to catch fish” has been reduced at the same level, or even that it has been reduced at all. The question of the balance between the reduction in nominal capacity, expressed in gross tonnage and engine power, and the

6 18

to 21 m.

“technical creep” provided for by the investment in better gear, more efficient fish-finding equipment, storage techniques and so on, has always been open and inconclusive. According to a recent study, in only a few years the reduction of overall capacity has been higher than the estimated technical progress. This means that in general terms the technological efficiency always grew faster than the real reduction of fishing capacity (Villasante and Sumaila 2010). This conclusion seems to be at odds with the general improvement in the state of EU resources in the last decade (at least in the Atlantic) as a result of a reduction in overall fishing effort since the turn of the century (see Figure 12.1 in Chapter 12), and the more recent increase in the profitability levels of many fleets segments (EU 2018a). These improvements are difficult to conciliate with an increasing overall fishing power. There is, however, a possible explanation to this apparent contradiction: the increased number and total capacity of the “inactive” vessels in a number of Member States, as demonstrated by the annual report on the EU fishing industry. In other words, according to this hypothesis, the European fleet is being reduced in total numbers, but also being reduced in terms of the percentage of active vessels.

The missing elements of the 2013 Policy reform The best example of the limited use of the fleet policy is the Mediterranean. The 2013 reform established the same objective, MSY by 2020 for all stocks, in all EU areas, including the Mediterranean. However, as shown by the annual Commission communication of fishing opportunities (EU 2018c), the levels of fishing mortality with respect to Fmsy in this area are so high, that it will be necessary to reduce them dramatically to get anywhere close the policy objective. If this is to be done under the current capacity levels, the fishing effort corresponding to the necessary reductions in fishing mortality would not be sustainable economically. The only way in which the reductions in fishing mortality could take place while ensuring a reasonable level of economic viability in the fleets concerned is by reducing the capacity of certain segments substantially. This is completely at odds with the existing fleet policy that indicates a total capacity that is lower than the ceiling, and also with the associated policy on scrapping, phased out after 2017. It can certainly be argued that, insofar as quotas are adhered to, it is not important if part of the European vessels are inactive. However, to the extent that European fleets have a “dormant” part that could theoretically be activated at any given time (without overshooting the legal capacity limits!), this poses a question of whether the fleet policy as it stands today is of any practical use. In a CFP so criticized for its complexity, it is worth discussing if a policy with so little demonstrable effect deserves to be continued.

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But with a few years of experience, is this really true?

The EMFF: an instrument to accompany the reform?

Some positives . . . The EMFF of 2014 has included a number of positive elements to become effective in supporting policy implementation: • The emphasis on the financing of control and data collection, essential elements to ensure a good policy implementation. • The different conditionality mechanisms, that make access to the funds conditional on the fulfillment of a number of obligations under the policy, both in terms of the obligations of individual operators, and those of Member States. Another question is the level of implementation of these mechanisms in practice. • The continued emphasis on some social objectives, such as safety on board. • The special conditions given to small-scale fleets, demonstrably squeezed out of structural funding in previous exercises. • The continuous emphasis on communitybased local development, a useful tool to promote local development in fishing communities. • The emphasis in funding actions to develop more sustainable and selective fisheries, as well as to improve industry/science cooperation. • The funding of actions to improve the respect of environmental legislation. These elements are objectively important to ensure that the new structural instrument contributes to the implementation of the new policy. However, this regulation fell short of what was necessary to tie up the public funds with the achievement of the new CFP goals.

The EMFF (EU 2014) was adopted a year later than the new basic regulation of the reform (EU 2013). This provided for an unprecedented opportunity to shape up the new structural instrument as a tool to facilitate and promote the implementation of the reform. Indeed, the idea that the EMFF is a bespoke instrument to promote reform has become a commonplace.

. . . and some negatives The least positive aspects can also be identified: • The regulation has too wide a focus, with too many measures many of which have no relationship with the achievement of policy goals. This makes the regulation an all-purpose tool, more than one focused on accompanying policy change.

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• The main instrument to cut any remaining overcapacity (scrapping premiums) is phased out. • Excessive harmonization, and no possibility for regionally-specific measures. For example, scrapping could be much more necessary in certain regions than in others, but conditions are identical. The same applies to temporary laying-ups. • No clear objectives to be achieved, and weak links with the main policy objectives (MSY, landing obligation, etc.). • No progress at all on industry responsibility: everything is paid for by public administrations. There is little in the way of co-responsibility by the fishing industry in co-financing necessary changes in control requirements or fishing practice. • The regulation is also too reticent on climate change, while its effects were already known in 2014. It is premature to evaluate what is the contribution of the EMFF to the implementation of the policy adopted in 2013. Many actions are on-going, the level of budget execution is still low and much of the best use of that budget may be yet to come. However, something seems to be already apparent: if one of the objectives of the fund was to facilitate the implementation of the new policy obligations, the evidence shows that the level of investment by Member States in more selective gear to contribute to implement the landing obligation is very low, and that the contribution of the structural instrument to accompany the substantial reductions of fishing mortality necessary to make progress on the conservation policy in the Mediterranean is also disappointingly small. At least on these questions it seems easy to conclude that, for the time being, the EMFF is not significantly contributing to facilitate the implementation of the most prominent feature of the reformed policy. This is a cause of concern.

The structural measures of the US as a point for reflection The experience of the US is certainly not one that Europe should “cut and paste,”

because there are more than obvious differences between the two. However, looking at the US system is always a good way to discuss internally in Europe about our own policies, and perhaps to reconsider if some of the things we tend to take for granted in policy-making should not also be part of our reflection on the future structural policy. The US structural policy is made up of two types of measure: • Fisheries catastrophe relief. This is a type of measure intended to palliate various effects of unforeseen circumstances that are not attributable to normal management or to the normal conduct of a private business. It is applied generally on request from the Regional Councils in a very flexible manner. The unforeseen circumstances are generally natural events (such as red tides, oil spillages) but theoretically can be applied also to other type of catastrophe. • Transition to sustainable fisheries through fishing capacity withdrawal. This instrument, like the EU’s scrapping premiums, is applied in the US on an ad hoc basis, at the request of the States or the Regional Councils, and applied on a case by case basis. These measures have something in common: they are not permanent schemes, but measures to be taken if and when necessary, as determined notably by recommendation from the Regional Management Councils. Is this kind of structural policy thinkable in the EU? This type of structural policy cannot be just copied in the EU. At least two factors make this type of policy difficult to apply: • The fact that the funds are not previously allocated to anybody, but used when and where necessary. This would be difficult to conciliate with an EU policy where allocation of structural funds is considered as part of the political status quo of the policy. The possibility that, for example, much of these funds may end up being used to pay French oyster producers to palliate high mortalities produced by an uncontrolled disease, instead of benefiting modest artisanal fishermen’s

The missing elements of the 2013 Policy reform communities in poorer Member States would be politically difficult. • The fact that this type of policy would require the funds to be managed centrally by the Commission (thus requiring probably more staff), and this runs counter to the tendency to decentralize the management of structural funds to Member States and to reduce the Commission’s staff means. Despite the above caveats, the US system provides a good opportunity to reflect on what changes may be desirable (or inevitable) in the structural pillar of the CFP if it is to deliver its declared goals.

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CHAPTER 12

The global context: emerging challenges

The status of the world’s fishery resources The future of the Common Fisheries Policy (CFP) will certainly be influenced by the global trends in the perception of the status of the world’s fishery resources. The use of the word “perception” in this context is intended to underline the growing importance that images and stereotypes have for the public at large in shaping up societal positions on fisheries management around the world, over and beyond the real situation of the world’s fishery resources based on the best scientific advice. This perception will have a crucial role in future political debates where the place of the fishing activity in the framework of ocean activity and governance will be at stake. This perception will have serious consequences on the way modern societies will look at fishing activity in general and the fishing industry in particular. In these times, when public perceptions are so easily influenced by superficial information, it is essential that the future development of the policy be based on in-depth knowledge of the reality.

The Pauly/Hilborn controversy In recent years, certain authors have predicted the collapse of the world’s fishery resources by 2048 (Worm et al. 2006). These forecasts have given rise to a hot public debate. Although this article has been abundantly questioned

by many prominent scientists (Stokstad 2009) including Worm himself, the image of a total collapse of the world’s fisheries by the middle of the century is so powerful that it remains strongly anchored in social media and is frequently cited in public debate, often being taken at face value as the undisputable scientific evidence. That doomsday scenario has been supported by well-known scientists such as Daniel Pauly, who successfully took the debate to the public media, stating that (Pauly 2009a): There are basically two alternatives for fisheries science and management: one is obviously continuing with business as usual. This would lead, in addition to further depletion of biodiversity, to intensification of ‘fishing down marine food webs,’ which ultimately involves the transformation of marine ecosystems into dead zones.

He also created a new, catchy term to refer to this apocalyptic situation: Aquacalypse. In this analysis, the critical view of the status of the world’s fish resources included a critique of Food and Agriculture Organization’s (FAO’s) evaluations, notably on the basis of a presumed under-estimation of the catches by the small-scale sector (Pauly and Froese 2012). According to this school of thought, fishing capacity has increased 10-fold (25-fold in Asia) since the 1950s and, if real catches are properly recorded or reconstructed, the global marine yield is not stable, but has actually halved in that period (Watson et al. 2013).

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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Such a doomsday scenario, prominently displayed in newspapers worldwide, imply that current management systems are not effective so that new, more dramatic approaches are necessary. These views have been actively used by environmental Non-Governmental Organizations (NGOs) to call for dramatic solutions for the management of fisheries. In the wake of this campaign, important personalities have joined the debate, often advocating very extreme solutions. Such is the case of Professor E.O. Wilson, Professor Emeritus at Harvard University, who proposes that humankind should set aside 50% of the planet undisturbed for environmental protection, including the elimination of fishing in the open sea.1 Another example is that of Dr. Sylvia Earle, highly-regarded marine biologist and sea-explorer, who currently advocates a stop in all fishing of predator fish (considering them equivalent to Bengal tigers) and considers all fishing “a torture to wildlife.”2 All these contributors depict a very negative image of fishing activity and promote the idea that current management methods are neither sufficient nor adequate to handle the current threats to the oceans from the fishing activity. Among these alternative management scenarios, the establishment of very large marine protected areas has been suggested as the ideal solution, giving rise to a tendency, largely favored by many environmental NGOs, to promote this kind of instrument as the solution to the world’s fishery management failures (Pauly 2009b). The debate has gone public, and some media have called it an “epic battle” notably between Daniel Pauly and Ray Hilborn, the two best known personalities representing opposite views on this question. Branch (2008) inter alia have questioned the methodologies proposed by the Pauly school and have underlined that, although the global picture is not necessarily rosy, with 1 http://cfooduw.org/eo-wilson-fishing/ 2 www.outsideonline.com/2030946/marine-

biologist-sylvia-earle-profile/

many resources being overexploited, there are positive trends in many fisheries around the world, so there is not objective basis for that doomsday scenario. Later studies to resolve this question have shed new light on the debate, showing that fisheries management is providing for the recovery of stocks in many areas of the world, and that the current trends in stocks status show stability in fish abundance, and not a collapse (Worm et al. 2009). As regards highly-migratory fish, in 2015, 76% of the world catches of tuna came from healthy stocks, which contradicts doomsday scenarios about stocks collapsing, according to data from the tuna multilateral organizations (Juan-Jorda et al. 2011; Pons et al. 2016). Other studies present themselves as being in the middle of the debate, and propose as a solution a community and ecosystem-based management favoring small-scale fisheries (Pitcher and Cheung 2013). FAO, in its 2014 report on the state of world’s fisheries, estimates global capture fisheries production as representing “a continuation of the generally stable situation reported previously” (FAO 2014, p. 5). Although there is a recognition that a lot remains to be done (For 2011, FAO estimated that 71.2% of stocks were exploited at biologically sustainable levels, but 28.8% were exploited at unsustainable levels), little in this report hints at the doomsday scenario first described by Worm et al. (2006). Overall, most of the scientific evidence shows a trend: where serious management takes place, fishery resources seem to be increasing, while the decline appears notably in areas where management is poor or non-existent. In fact, the 28.8% of stocks that FAO considers as exploited unsustainably, come largely from areas where traditional fishery management is still lacking or is very weak. Costello et al. (2012) indicate that in particular small unassessed stocks are in substantially worse condition than assessed fisheries, and that, if correctly managed, could bring about important increases in abundance (56%) and fishery

The global context: emerging challenges yields (between 8% and 40%). This implies that current management is not the problem; the problem is its absence in many areas and fisheries. Overall, with good management, FAO considered in 2014 that fishery resources will not only not collapse, but they have a potential for an extra increase of around 16.5 million tonnes, worth US$ 32 billion (FAO 2014, p. 7). In its more recent analysis, FAO (2016) gives a slightly more negative view, stating that marine fish stocks have not improved overall, despite notable progress in some areas. For FAO (2016) the number of stocks fished at unsustainable level has been increasing since the 1970 although the increase has leveled off in recent years. As for the under-exploited stocks, these have been decreasing up to the level of 10% in 2013. In any case, the total production of capture fisheries reached a peak in the late 1980s and has remained stable, fluctuating around 90 million tons a year ever since. Clearly, capture fish production is stagnant, but it is not collapsing. Importantly, FAO continues to think that there is a potential for increase of that production, coming from two sources: the limited (and shrinking) under-exploited stocks and, specially, the increase in over-exploited stocks thanks to better management. More recent estimates identify significant room for increase in fish production. Meaningfully, this increase may come from two sources: the improvement of management in currently overfished stocks, but also from fishing harder (at least in the developed world) stocks that are currently fished lightly (Costello et al. 2016; Hilborn and Costello 2017), although this later possibility is limited by consideration on economic feasibility. In any case, this study shows how the world’s fishery resources can indeed produce higher yields than today, rather than collapsing towards the middle of the century. These increases are compatible with increases of the biomass of the fish in the sea. This is in contrast with other economic sectors where economic growth implies trade-offs with the environment (Hilborn and Costello 2017).

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So, who is right and who is wrong? The evaluation of the state of the world’s fishery resources has been attempted by different methodologies, inter alia: 1 FAO Sofia (FAO 2016). This report is the most complete overview of capture fish production and stock status, with trends and geographical breakdown, thus allowing for an analysis of trends and differences among fisheries and regions. 2 The random access memory (RAM) Legacy Stock Assessment Database (Ricard et al. 2012), a permanent database regularly updated and improved which includes time series of fishing mortality and biomass by region, thus allowing for a dynamic evaluation of trends in stock status as a result of management. 3 The panel regression by Costello et al. (2016) assembled the largest-of-its-kind database and coupled it to state-of-the-art bioeconomic models for more than 4500 fisheries around the world. 4 The “ensemble approach” by Rosenberg et al. (2017) which analyzed 785 stocks and classified them on the basis of the relationship between current biomass and Bmsy. 5 The expert opinion survey by Melnychuk et al. (2016), where fishery experts from diverse backgrounds were invited to complete a survey characterizing the management systems for 10 species in their country of familiarity, to arrive to a global picture on stock status and the effects of management. 6 The Ocean Health Index3 which calculates the status of the world’s fishery resources on the basis of the relationship between their biomass and the biomass that would deliver maximum sustainable yield (MSY). 7 “The Sea Around Us,” a research group of scientists of the University of British Columbia. This group represents the views of Daniel Pauly and his school of thought

3 www.oceanhealthindex.org/methodology/ components/fisheries-status/

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referred to above. They base their methodology largely on the notion that the evolution of catches (which they recalculate from FAO’s statistics) is directly proportional to fish abundance. These methodologies, not surprisingly, arrive at different conclusions and refer to common concepts such as “overfished” with different standards. For example, if we take as a reference the work of FAO (2016), the 2048 doomsday scenario is not confirmed. Although the situation clearly needs to improve in many places, there is no basis to say that the fisheries will collapse by the middle of the century. However, FAO’s idea that world’s capture fisheries are stable is still strongly disputed by certain authors, who believe that the “stability” of catches referred to by FAO is an artifact of their (allegedly poor) estimation of real catches, suggest that FAO’s “stability” is a myth, that the situation is being degraded, and on that basis consider that if the situation continues, there will be a crisis by mid-century (Pauly and Zeller 2017). That point is made stronger in a book by Pauly and Zeller (2016)4 who insist on using catches as an indicator of fish abundance and, by “reconstructing” historical catches make the point that what FAO considers stable situations in reality correspond to declining abundances. The problem of this approach is, as stated by Paul Fernandes in his review of the book,5 that: trends in catch simply do not always reflect trends in biomass, particularly where there have been significant successful management interventions.

In the managed fisheries, lower catches correspond to lower levels of fishing mortality due to management and not to lower fish abundances. In fact, as we will see below, in the NE Atlantic a reduction in catches is compatible with an increase in fish abundance, as a result of the restrictions imposed by the

4 The

book summarizes the work of 15 years financed by the NGO Pew Charitable Trust. 5 http://orcid.org/0000-0003-4135-115X/

management systems and the improvements in enforcement. When evaluating this question, it is necessary to be very careful about how different authors refer to “over-exploited” and other related terms. Rosenberg et al. (2017) evaluate 785 fisheries around the world and found that 56% of these (439 stocks) were below Bmsy and considered that, contrary to the FAO classification referred to above, these stocks were “over-exploited” and not “fully-exploited” as FAO indicates. To add to the confusion, let’s remember that the US considers over-exploited only those stocks with an abundance lower than half Bmsy , and if all stocks were exploited at Fmsy half would be below Bmsy at any time. The different evaluation methods produce different results. They all coincide, however, to underline that there is still a lot to achieve and that many stocks around the world are overfished and need effective management to ensure their sustainability. Only one approach, that of The Sea Around Us actually insists on the doomsday scenario of a major fish stock collapse in the middle of the century. However, they do not look region by region to show that stocks are increasing or stable in countries where 1/2 of the world’s fish catch comes from. These examples clearly show that easy, popular messages about the status of the world’s fisheries must always be taken carefully and with a clear idea of how the different categories of stocks are defined in terms of their conservation status. In other words, that doomsday scenarios about the collapse of fisheries must not be taken at face value, and that the question must be considered seriously looking at different sources to have a balanced picture. In that regard, the bulk of the scientific evidence shows that the situation of the world’s fishery resources is very variable, with many problems still to be resolved, but with many cases where the trends are positive, as a result of sound management with traditional and well-tested methods. Over and beyond the overall trend, the areas of the world where

The global context: emerging challenges good, traditional fisheries management is conducted, the evolution of fishery resources is positive. Doomsday scenarios are not warranted by a large majority of the scientific evidence.

The case of the EU The European experience, in this context, must be considered: while the status of stocks (in the Atlantic where the time series of data allows this) showed a negative trend for many years, stock abundance has been increasing in recent years, and the number of overfished stocks is diminishing during this period. This was shown in Figures 1.2 and 1.3 in Chapter 1. In the case of the European Union, after many years of failure to manage fish stocks, the changes introduced in the turn of the century have resulted in a positive trend in recovering stocks, to levels that are close to producing MSY (Cardinale et al. 2013). This is also confirmed by the annual analysis commissioned to the Scientific, Technical and Economics Committee for Fisheries (STECF) by the European Commission. These trends appear in the last decade. However, it is important to underline that the reduction of fishing mortality that has made that possible started years earlier, as shown in the figures referred to above. These positive trends, however, do not take place in the Mediterranean, where the state of stocks is still that of an extremely high level of over-exploitation (Cardinale et al. 2017).

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These data show for the EU what is true for the whole world: fisheries management, though slowly, works. The poor state of Mediterranean fisheries can certainly be related to the traditional absence or insufficiency of a fisheries management worthy of that name, both at EU level and even more, at multilateral level for the whole of the basin. It is also important to check on the allegation that overfishing around the world is reducing the average size of fish. A 2014 report by International Council for the Exploration of the Sea (ICES) for the North Sea shows how this index, which was considerably reduced in the 1980s and 1990s to an all-time low towards 2001 (see Figure 12.1) has increased since then, following the overall reduction in fishing mortality as of the turn of the century.6 Figures 1.2, 1.3 (Chapter 1), and Figure 12.1 together clearly show that where management takes place, the status of the stocks improves. It can certainly be argued that progress is not quick enough, but it can certainly not be argued that the doomsday scenarios described above are about to turn into reality in EU Atlantic waters.

6 www.ices.dk/explore-us/Action%20Areas/ESD/ Pages/Greater-North-Sea-Pressures-Selectiveextraction-of-species,-including-incidental-nontarget-catch.aspx/

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indicator (LFI) for the Greater North Sea. Source: ICES (2014).

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Does fisheries management work? All the above discussion has a very obvious consequence: if resources are collapsing it means that current management of fisheries is not succeeding, so that a different, more dramatic kind of approach to fisheries management is necessary. On the contrary, if fisheries are not collapsing, this means that existing management is bringing gradual positive results, so it is necessary to continue with current management efforts and improve them where they are not yet effectively applied. This is therefore a debate on whether traditional fisheries management can and is providing results and whether dramatic alternatives would be necessary and justified. What we understand by traditional fisheries management is best represented by that exerted notably by developed countries. It is clear that the poor state of conservation of many fisheries around the world corresponds to developing countries where such traditional fisheries management is not applied, or only very inefficiently so. In fact, comparative studies based on meta-analysis have shown a very clear correlation between the status of conservation of stocks and the development of fisheries management, and this, in turn, is also correlated with the socio-economic status of the country in question (Melnychuk et al. 2016). An evaluation of the traditional fisheries management methods has also been realized using meta-analysis by Hilborn and Ovando (2014). This showed that stocks that are scientifically assessed are in better shape and indeed are not typically declining but rebuilding, and that large stocks appear to be in better shape than small ones. The latter may be due to the fact that larger stocks generally receive more attention and investment in research and management than small ones. This implies that current management methods can (and often do) lead to sustainable fisheries, so that more precautionary management is not necessary. In other words, what is necessary is not to

re-invent fisheries management with more dramatic or precautionary systems, but rather to ensure that all significant stocks are managed properly. Put it another way: the problem is not current management; it is the lack thereof. On this basis, some authors propose that management should concentrate on a number of “hot spots” where effective fisheries management is basically missing (Worm and Branch 2012). Costello et al. (2016) state that, although business as usual management would produce a continued collapse of many of the world’s fisheries, sound management “common sense” reform could generate annual increases exceeding 16 million tons in catch US$ 53 billion in profit and 619 million tons in biomass. In other words, common sense fisheries management has the potential to bring about a very substantial improvement in both the situation of global fish stocks and in their biological and economic outputs. The above authors also showed that business as usual did not lead to overall collapse and long-term yield wasn’t much lower than the current one. In Europe, Smith (2013) has summarized the contribution of traditional management to the improvement in the state of European stocks: Fishery management is widely perceived to be failing, and proposals for new approaches abound. However, evidence is accumulating that traditional approaches, where properly applied, do work. European management of fish stocks in the north-east Atlantic may be the latest case in point.

It is important to bear this in mind. If properly conducted, fisheries management works. In Europe too, under the CFP, this is also the case. While it is important to keep the policy under a permanent critical scrutiny, it would be a mistake to discredit the policy entirely as useless or ineffective. It is not the implementation of the CFP that is a problem, it is its absence or its bad implementation. And while it is obviously imperfect and should always be improved, it is not justified to use legitimate criticism to propose its dismantling and its replacement by an unknown, untested alternative.

The global context: emerging challenges We have referred above to the failure to improve fish stock status in the Mediterranean basin. Apart from other factors (the responsibility of non-EU countries in this basin) one can also conclude that it is the absence of management of Mediterranean fisheries under the CFP that is the problem. Despite its shortcomings, the CFP is succeeding to rebuild stocks in the Atlantic after many years of management. In the Mediterranean area, it is the traditional lack of management under the CFP that can be held responsible for the failure.

The “perfect protein”: can the world afford to under-exploit its fishing opportunities?

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in subsequent years. In 2013, fish accounted for about 17% of the global population’s intake of animal protein and 6.7% of total protein consumed (FAO 2016). The growing demand for fish in recent decades has been met notably thanks to farmed fish, both marine and fresh water. While capture fisheries have been stable since the late 1980s, aquaculture production has been increasing steadily and in 2014 a milestone was reached when the sector’s contribution to the supply of fish for human consumption overtook that of wild-caught fish for the first time (FAO 2016). FAO data also show very important elements:

Fish are caught without fertilizers, pesticides, antibiotics, or freshwater. Combining that with the generally low carbon footprint of most fisheries compared to land-based animal protein alternatives, and we have “the perfect protein” (Sharpless and Evans 2013). Still today, the main source of worry about the capacity of the world’s oceans to sustainably feed the world is the over-exploitation of resources, and the fight about it must continue to enjoy full priority, in particular in these areas of the world where effective fisheries management is still not applied. However, as the example of certain developed nations shows, the new emphasis on the preservation of biodiversity is raising a new problem, namely, the under-exploitation of certain resources. The question is, while we need to continue to fight against over-exploitation, can we at the same time afford to under-exploit other resources?

• Arable land in the world has been stable since the mid-1980s. This means that progress in agriculture requires more intensive practices, or chopping down more forestland. • As people improve their income and get out of poverty, their preference for animal protein increases. • Poorer countries tend to fulfill their demand for animal protein with more fish, as compared to wealthier countries. This means that fish is “animal protein for the poor.” What this means is that fish represent a key component of any strategy of reducing poverty and hunger around the world. In view of the projections on the growth of human populations, there is little doubt that fish protein will be called to represent an increasingly crucial role in supplying humankind with high quality animal protein. Any attempt to conserve the world’s ocean resources largely as nature reserves, or to manage resources in a way that produces significant under-exploitation of sustainable resources should bear this in mind.

Hunger and poverty: fish consumption and the global demand for fish According to FAO, world per capita apparent fish consumption increased from an average of 9.9 kg in the 1960s to 14.4% in the 1990s and 19.7% in 2013, and preliminary estimates point to at an increasing trend beyond 20 kg

Are the land-based alternatives better? Protein from livestock The challenge of producing protein for a growing global population is subject to endless discussion, including many advocates of an increasingly vegetarian diet as the only possibility, in view of the effect of animal farming on biodiversity and climate change. However,

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animal protein has been essential in human evolution, and it is not obvious that the future of humankind should necessarily be vegetarian. Besides, people like animal protein, so the question is: what is the kind of animal protein that is healthier and has a lower impact on biodiversity and climate change? Are the land-based alternatives to capture fishing and aquaculture better in that regard? We saw in Chapter 2 the effects of animal protein production based on livestock, and how they compare very unfavorably to fish in terms of biodiversity reduction and contribution to greenhouse effects. This clearly points to fish and other aquatic animals as not only the healthiest, but also the most environmentally-friendly of all animal proteins. The global impact of different food production systems has been studied in recent years. Although these effects can vary up to 50-fold even for the same products, depending upon production methods, transport, and other factors, certain patterns clearly emerge. In general terms, it appears that the impacts of the lowest-impact animal products typically exceed those of vegetable substitutes, providing new evidence for the importance of dietary change (Poore and Nemecek 2018). The production of food on land is very resource-intensive: covering 43% of the world’s ice and desert-free land, it creates c. 32% of the global terrestrial acidification. It is also responsible for 2/3 of total freshwater consumption, driving 90–95% of global scarcity-weighted water use. Concerning the production of animal protein, a study carried out reviewing 148 animal sources of food (comparing them in terms of energy use, greenhouse effect, release of nutrients and acidifying compounds) showed that the lowest impact forms of animal protein come from species that feed naturally in the ocean and that can be harvested with low fuel requirements. In more specific terms, the study found that the lowest impact production methods were small pelagic fisheries and mollusk aquaculture, whereas the highest impact production methods were beef production and

catfish production in freshwater (Hilborn et al. 2018). All these data must be compounded with the growing evidence that consumers deprived of one food source will shift their demand for other (Brashares et al. 2004). This is extremely important: any policy that will restrict the exploitation of marine protein more than is necessary to ensure full sustainability will result in an increase of the consumption of animal protein produced on land, with a higher environmental impact. When judging the merits of seafood protein and its environmental impact, this has to be done in the context of the comparison of such effects with the land-based alternative. The two lowest-impact production methods of protein are certainly capture fisheries and marine aquaculture practices, while the two highest impact methods are cattle raising and freshwater aquaculture. This emphasizes the key importance of seafood in the future of animal protein supply to humankind.

A question of equity: the notion of “leakage” The question is not just one of balance between supply and demand of seafood, and their subsequent effects on the world’s ecosystems; it is also about equity, because the effects of fishing policy are differently felt across the globe. We referred above to the very dramatic proposals by highly-respected personalities about massive reductions in fishing activity in the world. Besides the point that these measures would reduce considerably fish supply and thus aggravate pressure on land ecosystems to produce animal protein, it is obvious that the effect of the shortage of seafood would be felt primarily by developing nations. This raises a question of equity. As we saw above, fisheries management is producing reasonably good results in a number of developed countries around the world, but where sound management does not apply, resources tend to be over-exploited. Actually, both things are related: given the global demand for fish, good management in some areas of

The global context: emerging challenges the world can contribute to a greater impact of fisheries in other areas. We saw above the high level of under-exploitation of fish resources in the US. Yet, the US imports seafood from third countries. In this connection, it has been argued (Helvey et al. 2017) that: The full impact of US seafood consumption patterns needs to be considered at the global level in light of continuing efforts to further marine biodiversity protection. Failing to do so only serves to counteract the effectiveness of domestic actions by externalizing negative environmental costs to others.

The effect of exporting to third countries the environmental protection of the importing countries, thus increasing pressure on the exporting ones is referred to by the above authors as “leakage.” The authors examine a series of possible solutions to this problem, including the support of good management in third countries, but also a recognition of the externalities of management decisions and the consideration of capture fisheries as part of the food system. A number of years ago, the EU policy of financing the export of redundant fleet capacity to third countries was criticized as “the EU exporting its overcapacity problems to other countries.” This policy was discontinued largely due to this bad image. It is interesting to observe that the more the US and the EU protect their waters to preserve biodiversity, the more pressure will be put into third countries ecosystems. Given their seafood consumption patterns, it will also become clear that the main import markets in the world: Japan, the US and EU would be, allegedly, exporting their impact on marine ecosystems to third countries if they fail to exploit fully their own resources. This is something to reflect upon. The solution to the problem of leakage is not simple, and it varies for different countries. It is clear that while the US could reduce its leakage through full exploitation of its resources, Japan has limited or no room for maneuver to do so, and the EU is somehow in the middle. In any case, it seems clear that one of the most

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obvious solutions to the problem of leakage is to ensure that the import markets fully exploit the resources at their disposal in their own waters, so as to minimize their impact on third countries.

Fisheries: a key component of future diets All the above considerations must also be combined with considerations of the value of fish as health food. It is obvious that the world’s future needs for food simply cannot be fulfilled in quantity and quality without an increasing contribution from fish and other marine organisms. This makes, on a global scale, the potential under-exploitation of fishery resources a problem as serious as that of over-exploitation, in that it contributes to exploit inefficiently a fundamental source of healthy animal protein that the world will so badly need in the years to come. This will be very variable for different countries around the world. Certain countries with very extensive farmland will still be able to feed all their people and even export food without exploiting their fishery resources, and may be tempted to under-exploit these resources and consider the oceans as areas of low priority for food production and high priority for recreation and biodiversity preservation. However, the world as a whole simply cannot afford that option, and many countries around the world see today’s emphasis on the conservation of marine biodiversity through the extension of “no-take zones” as a “rich country agenda.” This makes full (sustainable) exploitation of marine resources a world need, but not a need for a number of influential countries, thus making the solution very complicated. This author has already referred to the crucial importance of the distributive aspects of fisheries management in the EU (Penas Lado 2016; chapter 2). On a global scale, the above situation represents a huge challenge which will, sooner or later, have to be addressed. This challenge is all the more important in the context of climate change, as we will see below. Certain forms of aquaculture and

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capture fisheries are among the lowest-impact systems for the production of animal protein (Hilborn et al. 2018), and thus represent an advantage as compared to livestock production on land in that particular context.

Aquaculture: the seafood of the future? FAO (2016) has reported on the growing role of aquaculture in the overall global supply of seafood. While the production of wild fish from capture fisheries has been stable since the 1990s, aquaculture production continues growing and has already overtaken capture fisheries, and the trend continues. There is no doubt about the crucial role that aquaculture will play in the world’s future supply of seafood. This is the fastest growing animal-foodproducing sector in the world, but there are considerable growth disparities among countries. One factor that contributes substantially to these disparities is the stringency of environmental legislation. A cross-country analysis showed that developed countries with stringent policies have a difficulty in balancing act when promoting aquaculture development, to the benefit of developing economies with more lenient regulations (Abate et al. 2016). The difficulties for aquaculture development are generally similar in much of the developed world, including for example the US (Knapp and Rubino 2016) where social opposition and the governance system, inter alia, hinder the development of the industry. Aquaculture development also poses a number of questions, notably in terms of the relationship between this activity and capture fisheries.

Aquaculture and capture fisheries: are they compatible? Aquaculture has shown an impressive growth in the last decades. Since the 1990s, while the production of capture fisheries has remained stable around 90 million tons a year, aquaculture production has been growing steadily to around 70 million tons a year. If the production

of aquatic food has reached levels of around 160 million tons in recent years it has been only thanks to the development of aquaculture (FAO 2014). Yet, certain types of aquaculture still suffer from frequent criticism as being “unsustainable”: the farming of carnivorous fish is often believed to cause undue pressure on the capture fisheries for the forage fish used to produce fish feed. While it is true that using wild fish to produce farmed fish can be considered an inefficient way to use fish protein, it is also true that the general state of forage fish stocks is not necessarily worse than that of human consumption fish, an argument that tends to dissipate the fear that this development will be detrimental for forage fish species. Certain authors have warned that aquaculture development (at least fish farming for carnivorous fish) requires huge amounts of wild fish as feed and this raises issues of food security and malnutrition in developing countries (Pauly and Zeller 2017). However, different authors have indicated that, despite certain bad practices, aquaculture has a lower ecological footprint than other, land-based animal protein production systems (Ye et al. 2017). Importantly, the dependence of fish farming on wild fish is steadily decreasing. FAO (2016) indicates that the amount of fishmeal and fish oil used for animal feed has been decreasing, and is now being used more selectively as a strategic ingredient in lower concentrations, particularly in key stages of production, such as hatchery, broodstock, and finishing diets. In fact, despite the spectacular growth of aquaculture around the world, the share of human consumption of the capture fish has increased in recent decades up from 67% in the 1960s to 87% in 2014. In other words, aquaculture production has been sky-rocketing despite a reduction of the use of wild fish as feed. There has been an impressive tendency in recent years toward replacing the use of forage fish from the production of fish meal toward direct human consumption. This is largely due to the development of alternative fish feeds notably from vegetable origin. The proportion

The global context: emerging challenges of fish meal and fish oil in the diets of farmed fish are decreasing (Little et al. 2016). For example, the contribution of fish meal and fish oil from capture fish to the diet of farmed salmon decreased from 65% to 24% and from 19% to 11% between 1990 and 2013 (Ytrestoyl et al. 2015). The food conversion ratios (the ratio of food fed to fish produced) over the past 25 years has fallen from 3 : 1 to 1.3 : 1 (Ye et al. 2017). These trends, however, must also be compounded by the fact that vegetable alternatives to fish feed may actually have higher environmental impacts than capture fisheries for forage fish. For this reason, the alternative use of fish trimmings, and other low value marine by-products for the production of fish feed constitutes an extraordinary development and an excellent example of circular economy. With these evidences at hand, there seems to be no major conflict between further development of aquaculture and the sustainable exploitation of capture fisheries, including that of the forage fish species. A different problem altogether is the conflict between aquaculture and other uses of the limited coastal space. Competition for space has long been identified by the European Commission as one of the main bottlenecks for the development of aquaculture in Europe. Finding physical space devoid of conflict with other uses is perhaps the single most important barrier to this development in Europe and in many other places in the world. In many cases, the activities potentially overlapping with aquaculture development are unrelated to fisheries, so that the interaction of fisheries–aquaculture, from that point of view too, is not the crucial one. Two kinds of solutions clearly emerge in any case: integrated coastal management, and the development of the offshore sector. • Integrated coastal management is an obligation for Member States under the new CFP. As a precondition for benefitting from European Maritime and Fisheries Funds (EMFFs) for the development of aquaculture, member States should “do their homework” in terms of integrated coastal management.

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• As for the offshore dimension, the new directive on maritime spatial planning should provide the basis for Member States to identify potential areas for offshore aquaculture while reducing conflict with fisheries (and other uses). That means that the instruments to ensure development without major conflict with capture fisheries are in place. Whether they provide a solution and prevent conflict between the two activities will rely heavily on the way Member States implement such instruments in practice and on the level of priority that they will accord to aquaculture in the context of their ocean and coastal management.

Is aquaculture ecologically sustainable? Aquaculture has a negative image among environmental organizations. This image has important consequences: the licenses in coastal zones are frequently opposed on grounds of their presumed effects on the marine and coastal ecosystems. In some EU Member States, this has resulted in an extremely low number of new licenses being granted for aquaculture in recent years. Of particular relevance is the conflict between aquaculture and coastal areas protected by the Natura 2000 network that has been a frequent cause of conflict and litigation. The (real or perceived) negative effects of aquaculture Aquaculture tends to have a negative image in terms of environmental impact. NGOs are very critical of this sector (particularly when it is for sale, not for self-consumption) and science has also been extremely critical with the farming of carnivorous fish, considered as a practice to “raise tigers” in reference to its allegedly low trophic efficiency (Naylor and Burke 2005). This negative environmental image is due to a number of reasons: • The preference of aquaculture facilities for Natura 2000 areas, due to the importance of clean water for this sector. • The traditional use of antibiotics in fish farms. Although impressive progress has

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been made, the bad image resulting from this old practice still remains. • The “genetic pollution”: the escapees from fish farms (with a very low genetic diversity) mix with the wild stocks reducing the genetic diversity of the wild populations. This also remains as a perceived problem despite important progress in reducing escapees from farms in recent years. • The production of residues that accumulate in the bottom of the farms, producing anoxic conditions. • Beyond Europe, the production of certain species, such as shrimp, has been made in many cases at the cost of cutting down mangroves or other highly valuable coastal ecosystems. These are (or were) real concerns, and the future of aquaculture certainly requires that these concerns be addressed and resolved.

excessive and the areas affected can regenerate. In other cases, the accumulated detritus can be extracted and used for other purposes on land; certain pilot projects have been carried out in this regard. • The question of the destruction of mangroves in some developing countries is a problem in principle beyond the CFP. But the more the EU is self-sufficient in the production of seafood, the less it will put pressure on third countries to cut down their mangroves to export to the European market. Overall, the environmental problems traditionally associated with aquaculture are being addressed at different levels. While it would be too simplistic to pretend they have disappeared, they must be examined in the context of the advantages that this sector represents as a fundamental source of food.

Can the negative effects be solved or mitigated? The aquaculture industry and the administrations responsible, conscious of the above problems, have taken numerous steps to address them, inter alia: • The conflict between aquaculture and Natura 2000 sites is complex, and can give rise to different solutions. In Ireland, for example, the conflict with Natura 2000 has led to the development of salmon farming offshore.7 In other cases, such as Galicia, NW Spain, coastal planning has addressed these concerns by establishing a zonation that preserves Natura 2000 areas while identifying zones for aquaculture development8 . • Escapees have been reduced considerably, thanks to new practice and protocols based on accumulated experience. • The accumulation of detritus is handled with different methods. One in particular consists of moving the cage sites periodically, so the accumulation of detritus from the pens is not

The positive effects Over and beyond the increasing ability to address its well-known (and much publicized) shortcomings, aquaculture development can also have direct positive effects on the environment: • Compared with the production of animal protein on land, protein from aquaculture, and particularly mollusk production, has a generally low carbon footprint (see for example Hilborn et al. 2018) and can therefore contribute to mitigate climate change. • Mollusk aquaculture is well-known to contribute to clean fouled water9 . • Aquaculture needs clean water. Producers are, unlike many other economic sectors, strong advocates of high standards of water quality. In this regard, they should be natural allies to environmental NGOs. For these reasons, among others, aquaculture, and very particularly mollusk production, must be seen as an opportunity more than as an environmental problem.

7 www.bim.ie/media/bim/content/downloads/

Farming,the,Deep,Blue.pdf/

9 https://e360.yale.edu/features/how_mussel_

8 www.intecmar.gal/esga/PDAL/Default.aspx/

farming_could_help_to_clean_fouled_waters/

The global context: emerging challenges The offshore option

In recent years aquaculture has initiated its development offshore. The advantages of their offshore option can be summed up by the traditional saying: “out of sight out of mind”. In other words, when aquaculture is no longer visible in the coastal zones, conflict with other uses and worries about its effects tend to disappear. In recent years, technological development has been impressive. Today, offshore fish pens can be entirely submerged, and be equipped with automatic feeding systems (thus reducing the costs of transport and handling of the feeding operation) and with cameras to monitor all aspects of the farm from land. In addition, offshore farms have also an advantage in terms of the high energy environment where the detritus they produce is much more effectively diluted and recycled by the marine environment. The real potential of marine aquaculture is illustrated by the estimation that the current total landings of wild-capture fisheries could be produced by using less than 0.015% of the global ocean area. That means that if we consider the offshore option, the limiting factor for development would not be the limitation of physical space, but other factors such as governance and economics (Gentry et al. 2017). Offshore aquaculture can still pose problems of conflict with other uses of the maritime space, such as capture fishing, tourism, or sea transport, but the development of maritime spatial planning can be the answer to these potential problems. Overall, offshore aquaculture is an option that, particularly in countries with a high population density in coastal zones, holds the promise of further development largely devoid of the kind of conflict that has so far held back development in the EU. Furthermore, there is a potential to develop certain types of sea farming simultaneously with other uses of the marine space, such as windfarms.

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Aquaculture and wind parks One of the most promising developments is that of the multi-use of wind farm projects. The combination of wind farms and aquaculture facilities may actually represent an opportunity rather than a threat. Incompatible with other uses (navigation, capture fishing, mining, etc.) wind farms can be easily made compatible with certain sea farming practices. By associating itself with wind farms, aquaculture can benefit from the high priority that wind energy enjoys in most if not all coastal countries. Some authors have identified the opportunity of developing a fourth dimension in the planning of wind farms, by making them adaptable to farming practices through “eco-engineering.” These can actually produce a better resistance of the ecosystem in the long run to anthropogenic pressures and reduce multi-user conflict in the maritime space (Lacroix and Pioch 2011). Specific projects such as MERMAID10 are developing the potential to combine offshore production of food and energy by developing ideas on how different industries can work together (Christensen et al. 2015). Other studies, on complementary benefits of alternative energy and suitability of offshore wind farms as aquaculture sites11 revealed that less than 3% of the total area leased for an offshore wind farm is actually occupied by the offshore wind farm piles and foundations, so there is ample space between the piles to start aquaculture operations without disturbing the main activity of electricity generation. Many other initiatives and studies exist in this area and, while the energy industry may not be enthusiastic about sharing their maritime space with aquaculture, they can be receptive to study habitat enhancement as a means of mitigating the impact of offshore wind farms on the marine environment. This can be an opportunity to develop a strategic partnership.

10 www.coastalwiki.org/wiki/Portal:MERMAID/ 11 www.seafish.org/media/Publications/10517_

Seafish_aquaculture_windfarms.pdf/

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Land-based marine aquaculture The very enunciation of this possibility seems a contradiction in terms, except that it is not. In addition to already existing practice (for example, turbot farming in land-based tanks), in recent times different projects have been testing farming of seawater species in greenhouse facilities on land. These tend to be based on closed systems with re-circulated seawater, powered by solar energy and with combined species and full recycling of waste, including the use of the waste organic matter as fertilizer for associated greenhouse farming. The advantages of this kind of aquaculture are that they avoid competition for space in the overcrowded coastal zones, they can ensure zero waste and the production can be much better planned and controlled to fit market needs, regardless of weather conditions or other random factors. This kind of practice is extremely promising, in that it can resolve many of the problems mentioned above, in particular related to the competition for space in coastal areas, a problem that is practically impossible to resolve on most of the European coasts.

Fisheries and employment As we saw in Chapter 2, Article 39 9 of the Treaty on the Functioning of the European Union (TFEU) establishes, inter alia, the objective of: The optimum utilisation of the factors of production, in particular labour.

This clearly implies that optimum employment is among the key objectives of the fisheries policy. The Treaty, however, does not provide further guidance as to what this “optimum utilization” is about. Traditionally, in any case, the CFP has been criticized for the continued loss of employment, at least on board the fishing levels. However, judging the performance of the CFP on the basis of the losses of jobs on board is far too simplistic: the fishing industry, like any other industry, is always subject to technical progress which increases labor productivity.

And in a context of limited natural resources to exploit, this implies that the gradual reduction of jobs at sea is a natural trend, not necessarily a policy failure. Figures 1.4 and 1.5 in Chapter 1 show how the reduction in the number of jobs at sea is accompanied by an overall increase in salary levels and in the overall profitability of the sector. And, although this is very difficult to quantify, the safety and working conditions on board fishing vessels have dramatically improved under the CFP. Despite this, in recent years the problem of employment in EU fisheries is not just the loss of jobs on board; it is also, or even primarily, the lack of attractiveness of the jobs. This is shown by the tendency for crews to be made up largely of foreign workers: in many European fleets, young people simply do not want to work on board a fishing vessel anymore. This turns the whole question from one of job losses to another one of lack of attractiveness of such jobs. For the above reasons, the question of employment in the CFP must be examined from the point of view of employment quality, and not just quantity. The normal evolution in a healthy fisheries sector is to have fewer jobs at sea, but better paid, safer, and more attractive jobs.

Employment at sea The mechanization of the fishing activity inevitably leads to a reduction of the number of jobs at sea. The EU is frequently criticized for having produced a substantial reduction in the number of jobs in the fishing industry. However, this is by no means a result of a specific EU policy. Rather, it is the inevitable result of the technical progress in fishing vessels that makes it possible to fish more with fewer vessels and smaller crews. In the most successful fishing countries, the tendency in recent years is very similar. What happens in other countries? The reduction of employment in the fishing sector is strongly resented in many fishing areas of the EU, and is often blamed on the “failure

The global context: emerging challenges of the CFP to preserve employment.” However, the most successful countries in the world in terms of management (often presented as the model the EU should follow) have been losing jobs at sea in recent decades, as a result of greater automation and increased fishing power of modern vessels. In Iceland, the official Government’s website indicates that: The highest number of people working in the fishing industry was in the 1980s about 16 thousand employees. After that the number of people has declined constantly to the current level of about eight thousand.

This reduction, however, corresponds also to an increase in the average levels of salaries by fishermen. This shows the trends toward fewer but better jobs. In Norway, the number of jobs has been steadily decreasing for many years. According to FAO, full-time employment in the catching sector decreased from 17 087 in 1996 to 13 260 in 2003. And the trend continues. These two examples, coming from countries generally acknowledged as successful examples of preserving a thriving and competitive catching sector, illustrate the point that the reduction of jobs at sea is not necessarily a sign of policy failure, but rather an inevitable tendency in modernizing fisheries. From the above data it follows that the tendency toward fewer jobs at sea is neither an exclusive EU problem, nor an exclusive problem of the fishing industry. Other industrial sectors also have a clear reduction in the number of jobs, all as a consequence of productivity gains. The question then is not just number of jobs at sea, but also the quality of these jobs. The ILO convention Convention 188 of the International Labour Organization (ILO) is an international instrument concerning working conditions on board of vessels with three clear objectives, notably to improve: • Safety on board fishing vessels;

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• Food, accommodation, and medical care at sea; and • Employment practices, insurance, and liability. This convention must be ratified by EU Member States, which are competent on social policy. In the EU, only two member States had ratified this instrument by the time these pages are written. However, the EU social partners in the sea fisheries sector, European Transport Workers’ Federation (ETF), Europêche, and European Farmers and European AgriCooperatives (COPA-COGECA), agreed on a common text implementing the provisions of the ILO Convention in 2013 and requested the Commission to implement their Agreement by a Council decision (in accordance with art. 155 and 153 TFEU). In 2016, the Council adopted a Directive to implement the Social Partners Agreement. Both the Convention and the EU Directive entered into force on 16 November 2017 (EU 2017). In the context of the future implementation of this convention, which we must consider a fundamental step in ensuring better working conditions in a sector that has long been characterized by extremely long working hours, less than perfect safety and often low hygienic conditions, the full implementation of this convention will imply better working conditions and, hopefully, higher attractiveness of the fishing industry for young Europeans. However, this will obviously come at a cost. Such better working conditions cannot be achieved with very high numbers of workers on board with low wages. The inevitable consequence of the convention is better, but fewer jobs at sea. The Commission reports on the performance of European fleets show a correlation between the quality of jobs (in terms of salary levels) and the gains in productivity (higher profits and lower employment) in the sectors concerned (EU 2016). This only underscores the need to consider the question of employment in the fishing industry not just as a quantitative question, but notably a qualitative one, where the inevitable

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loss in the number of jobs at sea should be considered against the gains in the quality of these jobs. In this vein, as we suggested in Chapter 1 under the heading: “Optimum utilization of the factors of production, in particular labor,” the improvement of working conditions on board EU fishing vessels, including high levels of income, should be considered an element of policy success according to Article 39 TFEU.

The property of the means of production: who owns the fishing rights? Does it matter? Why the structure of property matters The question of the property of the means of production and its possible influence in fisheries management has gone completely unnoticed for many years in the context of the CFP. Yet, it is easy to imagine that depending upon the ownership of the fleets and the ancillary industry, certain policy options may or may not be acceptable by the industry. An obvious example can be that of rights-based management: where the ownership of the vessels and the fishing rights is distributed among a myriad of boat owners strongly attached to their local communities the industry is likely to oppose such a mechanism. However, where the ownership is concentrated in fewer hands, and particularly those of investors from foreign countries, such a mechanism can be much more desirable. Few studies are available on this question, largely due to the less than transparent structure of ownership in the fishing sector. This is particularly true for the large-scale fleets, where ownership is often hidden behind instrumental ownership. On the contrary, the structure of small-scale sectors is generally clearer and more transparent; here, the figure of the boat owner/skipper is still largely predominant. The European Commission has recently commissioned a first study on this question, which by and large has long remained opaque at EU level.

The question of ownership remains controversial, in at least two aspects: • The rapport de force between small-scale owners and large-scale owners which determines important policy positions in the industry and administrations concerning the extent of the use of market mechanisms in fisheries management. • The question of foreign ownership of the fishing fleets and fishing rights. Although this should not be a problem under the four freedoms of the EU (capital, citizens, investments, and services) it is certain that investment in the fishing fleets (particularly the small-scale ones) by foreign interests is still surprisingly resented in many Member States as an unacceptable invasion of their coastal communities. In addition to the well-known case of the UK’s Merchant Shipping Act of 1988, other Member States also voice strong opposition to any foreign investment (even from other EU countries!) in their fishing industry. This of course does not stop the significant changes in ownership of fishing vessels and their associated fishing rights. Despite the lack of data and the lack of transparency of many of these changes in ownership, such changes continue to be significant in Europe and they often concern non-EU interests as well. In certain Member States, for example, there is an important penetration of Icelandic fishing interests, and the important penetration of Norwegian interests in the EU aquaculture industry is also a well-known phenomenon. For these reasons, it is clear that the question is important and has a bearing on the management of European fisheries. Investing in the fisheries sector may be considered by many as a risky business, given the troublesome image often projected on the fishing industry and its management. However, it has been argued that investing in well-managed fisheries can indeed be very profitable, due to potential large and quick returns on investment in well-selected cases (Serge Garcia, personal communication). In any case, the fact is that the ownership of the fleets and

The global context: emerging challenges fishing rights in Europe is, from abundant anecdotal information, changing intensely, which suggests that ownership is not necessarily stable over time. And this raises the following question: if the ownership of fishing rights is changing, can these changes lead to changing positions in the European fishing industry as regards its position on management options? And can these changes influence the position of their national administrations on these issues?

What possible effects on management? In the absence of data in Europe, one can only theorize about the possible effects of different structures of ownership in the attitude of the fishing industry to different fisheries management options: • The use of market mechanisms as rightsbased management is much more acceptable for large interests than for small owners. • Relative stability is also seen differently by large owners with fishing interests in more than a Member State than by small owners entirely dependent upon national quotas. • Non-EU owners are unlikely to have the same views on the rigid allocation keys under relative stability as the owners from Member States depending upon national quotas. The stakeholders’ position on the above points (and, by implication, the position of their national governments) is likely to evolve as changes in ownership take place. This is of course a slow process, as these changes in ownership are gradual and often discreet. In addition, the changing position of stakeholders are probably slow to trickle-down into national positions on management. In any case, this is a question where the Commission cannot and should not intervene (except in cases of breach of internal market, competition, or state aid rules for example). But monitoring the situation and investigating where we stand on this question will be important to gauge the industry’s readiness to accept certain policy changes.

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As a matter of free markets, the Commission should take a hands-off attitude, except to ensure that the EU’s four freedoms are strictly respected. But beyond that, the monitoring of what is happening should be a matter of interest, in so far as it could have a bearing on what the EU “industry” may be ready to accept at any given moment. Overall, the question of the property of the means of production is not as such a policy strand: the market should work properly under general EU rules. However, providing transparency as to what is happening can shed some very interesting light as to the possibilities for developing certain management instruments in the future.

Climate change and fisheries management Despite the existence of well-organized global warming deniers (Dunlap and McCright 2011) this author takes the view that the proofs of the existence of a phenomenon of global warming induced by human activity are so overwhelming that they are impossible to ignore. This is more than a personal opinion. At least for two reasons the CFP must assume that global warming is real and that it will have effects on European fisheries: • The precautionary approach, which means the CFP should take measures to address well-identified problems even if the proofs are not definitive. • The obligation of the CFP to base itself on the best scientific advice available. Even if certain voices disagree, this is, beyond any doubt, that of the International Panel on Climate Change (IPCC) (see below). The last report of the IPCC, published in 2014, contains specific sections on the effects of global warming on the world’s ocean systems (chapter 6) and on the “Food security and food production systems” (chapter 7) including fisheries and aquaculture. It is important to revise their main conclusions because their implications are simply impossible to overlook by managers of ocean and fishery resources worldwide.

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Global warming and the oceans Chapter 6 of the panel summarizes its findings adding an evaluation of the level of confidence of the conclusions, to allow managers to evaluate the associated risks. A number of the conclusions are important for the CFP. Importantly, the panel qualifies its conclusions with a level of confidence, to fend-off allegations of scare-mongering by certain parts of public opinion, who think that governments and people should not be scared on the basis of uncertain conclusions. Some of the conclusions by the panel clearly demonstrate the effects of global warming on the world’s oceans with a high degree of confidence. The consequences, however, are not necessarily always negative for all oceanic systems, and the effects may combine and may result in unforeseen consequences: • Climate change alters physical, chemical, and biological properties of the ocean (high confidence). • The fossil record and current laboratory work confirm the link between key environmental drivers and responses of ocean systems to climate change (high confidence). • Vulnerability of most organisms to warming is set by their physiology, which defines their temperature ranges. • The warming-induced shifts in abundance, geographic distribution, migration patterns, and timing of seasonal activities of species (very high confidence) have been and will be paralleled by a reduction in their maximum body size (medium confidence). This will further result in changing interactions between species (high confidence). • By the mid-twenty-first century, spatial shifts of marine species will cause species richness to increase at mid and high latitudes (high confidence), resulting in global redistribution of catch potential for fish and invertebrates, with implications for food security (medium confidence). • Rising CO2 changes carbonate chemistry producing ocean acidification, with impacts ranging from organismal physiology and behavior to population dynamics. However,

the observed responses to acidification are not yet outside the natural range of variation so the overall effects remain more uncertain. • The expansion of anoxic zones (“dead zones”) will constrain the habitats of oxygenbreathing organisms and favor anaerobic microbes (medium confidence). • In certain ecosystems, water cooling will take place, resulting in more intense upwelling and higher productivity (medium confidence) but also enhanced hypoxia, acidification, and associated biomass reduction in fish and invertebrates. • Environmental drivers acting simultaneously on ocean organisms often lead to complex responses (high confidence) which are difficult to anticipate. • The combination of global and regional climate change with local anthropogenic factors (overfishing, pollution, etc.) results in enhanced vulnerability of natural and human systems (high confidence). • The progressive redistribution of species and the reduction in marine biodiversity in sensitive regions and habitats puts the sustained provision of fisheries productivity at risk (high confidence). • With continuing climate change, local adaptation measures (such as conservation) or a reduction of human activities such as fishing may not sufficiently offset global-scale effects on marine ecosystems (high confidence). In the light of all the above points, it is clear that global warming poses a huge challenge to the oceans and the human activities that depend from them. It is particularly important from the above conclusions of the IPCC that: • There have to be global solutions because local solutions may not suffice. • Many effects are difficult to foresee, and this implies more research and more precaution in management. • Many effects will be different in different geographical areas, so one-size-fits-all fixes will not work. Although the effects of sea temperature on species distribution are much better assessed than those of ocean acidification, studies show

The global context: emerging challenges that future levels of acidification could mediate temperature-driven shifts in species distributions, thereby influencing future biogeography and the functioning of marine ecosystems (Calosi et al. 2017). A problem that may be of particular relevance in the Mediterranean is that of the invasion of non-native species. This has been considered as the biggest threat for the world’s ecosystems (Margolis 2007). Although the problem is caused by the Suez Canal that opens the basin to Red Sea species, the problem is certainly aggravated by climate change: without it, many species of the Red Sea would not be able to colonize the Mediterranean due to the temperature difference. The EU as a fundamental contributor to the world’s maritime agenda has to consider all these challenges as a fundamental part of its future initiatives on maritime governance.

Global warming and food production The report of the panel also dedicates an extremely important chapter to the effects of global warming on the production of food. A number of its conclusions are of relevance, directly or indirectly for the management of the world’s fisheries: • Climate trends are affecting the abundance and distribution of harvested aquatic species, both freshwater and marine and aquaculture production systems in different parts of the world. These will have negative consequences on nutrition and food security especially for more vulnerable people in some tropical developing countries, although in other regions there can be benefits in aquatic food production (medium confidence). • All aspects of food security are potentially affected by climate change, including food access, utilization, and price stability (high confidence). • Global temperature increases of c. 4∘ C or more above late twentieth century levels, combined with increased food demand would pose large risks to food supply globally and regionally, particularly in low-latitude areas (high confidence).

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• Changes in temperature and precipitation will contribute to increased food prices by 2050 (medium confidence). • Adaptation in fisheries, aquaculture, and livestock production will potentially be strengthened by the adoption of multi-level, adaptive strategies to minimize impacts. For fisheries this implies preserving ecosystem resilience, enabling occupational flexibility and developing early warning systems for extreme events (medium confidence). • A range of potential adaptation options, beyond production, includes food processing, packaging, transport, storage, and trade. • The points above are extremely important as food for thought, particularly with regard to the following aspects. • The different regional implications of global warming, with more negative effects on tropical areas, pose a difficult distributive problem, which only adds to the problem mentioned above of the level of exploitation of marine resources and its implications on food security. Global warming will certainly aggravate these distributive problems. • The negative effects on land, with lower production and higher prices of land-based food, would only make more crucial our future dependence on seafood. Again, the point made above on the need to fully and sustainably exploit the world’s fishery resources becomes more crucial in the light of global warming. The world simply cannot count on producing all the future food needs through agriculture and livestock alone. • A recent study on economic effects estimates that global fisheries revenues could drop by 35% more than the projected decrease in catches by the 2050s under high CO2 emission scenarios. Regionally, the projected increases in fish catch in high latitudes may not translate into increases in revenues because of the increasing dominance of low value fish, and the decrease in catches by these countries’ vessels operating in more severely impacted distant waters. Also, developing countries with high fisheries

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dependency are negatively impacted (Lam et al. 2016). FAO has also evaluated the effects of climate change on the world’s fisheries.12 These effects are summarized as follows: • Indirect wider socio-economic effects (e.g. fresh water use conflicts affect all food production systems; adaptation and mitigation strategies in other sectors impact aquatic systems in general or fisheries and aquaculture directly). • Biological and ecological responses to physical changes (e.g. productivity, species abundance, ecosystem stability, stock locations, pathogen levels and impacts). • Direct physical effects (e.g. sea level change, flooding, storm impacts). The growing evidence of the effects of global warming has led certain countries, and certain regions of the world, to develop very forward-looking strategies to adapt. A case in hand is the US State of Alaska.

The effects of climate change on fisheries and aquaculture The effects of climate change on fisheries and aquaculture have been studied for a while. Although the evidence is still preliminary and much more research is needed, the situation was summarized by FAO through a dedicated overview (FAO, 2018). A first question is the possible reduction in ocean productivity. As surface waters warm up, sea water stratification will increase and this may cause lower levels of upwelling and thus lower primary production of phytoplankton. However, in high latitudes the residence times in the euphotic zone will increase and so will primary production through an extended growing season. Overall, it is difficult to predict if the global primary production of phytoplankton will be reduced or increased, but it certainly seems that there will be increased geographical differences in ocean productivity, generally in favor of waters closer to the poles and against

12 www.fao.org/fishery/climatechange/en/

tropical and sub-tropical waters (Barange and Perry 2009). A recent study using satellite imaging found no significant trend in global annual median chlorophyll from 1998 to 2015 (Gregg et al. 2018). However, in certain areas like the Indian Ocean, there is an important change in the composition of the phytoplankton species, with mid-sizes species such as diatoms and chlorophytes declining dramatically and their decline being compensated partially by much smaller cyanophytes. This is significant because cyanophytes may not be retained by filter feeders such as pelagic fish, so even if total productivity does not decline substantially, the ability of primary production to be incorporated to the food chain may actually change. Changes in sea temperature are expected to drive most marine species ranges toward the poles, expanding the range of warmer-water species and contracting that of colder-water species. A possible effect of these displacements is that they will affect different species differently, thus potentially accentuating predatorprey mismatches. In the specific case of the Mediterranean, the narrowness of the basin makes it difficult for traditional species to mover northwards. This results in these species being gradually squeezed by new species to the northern rim of the basin, thus increasing biodiversity and substantially altering traditional species composition. As for ocean acidification, due to the increase in the CO2 dissolved in sea waters, the effects are still very difficult to predict, but they will likely be particularly severe for shell-borne organisms, tropical coral reefs and cold-water corals. Important uncertainties and research gaps remain, in particular the effects of synergistic interactions among stressors (fishing, pollution, etc.), the occurrences and roles of critical thresholds and the ability of different marine organisms to adapt to the evolving circumstances (Barange and Perry 2009). However, the effects are not only to be expected on marine biota. Fisheries are social–

The global context: emerging challenges ecological systems, and the changes of productivity and distribution will mean that populations dependent on fishing will be exposed to a number of direct and indirect impacts, including displacement and migration of human populations, impacts on coastal communities and infrastructures due to sea level rise and changes in the intensity and distribution of tropical storms. The vulnerability of human population to these changes varies considerably, with poorer and less empowered countries suffering the most acute effects, and with higher exposure by those countries already suffering from over-exploitation and over-capacity (Daw et al. 2009). These effects will have a strong bearing on fisheries management: in developed countries these changes mean the need for the management system to adapt to changing distribution patterns by adapting management areas. For the international community it means that there may be increased inequality in terms of access to the changing resources, with important consequences in terms of food security. As for aquaculture, climate change will imply significant impacts notably through sea level and temperature rise, changes in monsoonal rain patterns and extreme climatic events and water stress. The increase in water temperatures may have negative effects on aquaculture in temperate zones because such increases would exceed the optimal temperature range for the organisms currently cultured. However, it may have certain positive effects such as an increase in growth rates in tropical and subtropical waters (De Silva and Soto 2009). Beyond the effects on the farmed species themselves, another source of concern is the possible effects of the warming of waters in the extension and prevalence of certain diseases. It has been reported, for example, that warmer waters are increasing the prevalence of certain bacteria in oysters, not only increasing oyster mortality, but also representing a threat to human health. Other species may also contribute to increase toxicity such as certain species of toxic algae.

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How to address the problem: the case of Alaska In the US a number of initiatives are being taken to address the problem of global warming on fisheries. Recently the US National Oceanic and Atmospheric Administration (NOAA) has set up the OceanAdapt website, with the objective of tracking fish populations as the climate changes. The case of Alaska is of particular relevance. The SeaGrant Alaska project has developed ideas on how to adapt Alaskan fisheries including the necessary adaptations in science, governance, action by fishermen and fishing communities and so on (Johnson 2016). Although the adaptation to global warming has to be adapted to local conditions, the South Eastern Bering Sea Regional Climate Science Strategy has the value of including all the essential elements of what should be a general strategy to adapt to climate change. This plan has six steps: 1 Identify climate informed reference points for managing living marine resources. This implies, for example, revising the estimations of parameters such as Bmsy to adapt them to the new climatic conditions emerging. 2 Identify robust strategies for managing resources under changing climate conditions. This implies identifying management strategies that will not be so dependent from climate-related uncertainty. 3 Design adaptive decision processes that respond to changing climate conditions. This implies that fisheries management cannot be based on instruments and principles that are too heavy or difficult to modify and adapt. 4 Identify the resources and dependent human communities most affected by climate change. This is very far-reaching because it implies that the traditional distributive policies may not correspond to future needs under changing climatic conditions. 5 Identify the mechanisms of climate impacts on resources and dependent communities. This is essential to identify the type of corrective or compensatory action that may be needed.

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6 Track trends in ecosystems and depending human communities and provide early warning of changes. This means that adaptation to climate change also implies a permanent monitoring of the situation to ensure that negative changes can, to the extent possible, be anticipated. The above six points are an extremely useful source of inspiration to adapt any fisheries management system to climate change. In addition, however, and beyond this regional strategy, a worldwide strategy is also necessary, notably to address the global distributive problems identified above.

Marine pollution: the example of micro-plastics and marine resources In addition to the effects of climate change, the future of fisheries is also dependent upon a number of challenges concerning the preservation of the marine ecosystems. It is opportune to bear in mind that, although fishing alters the marine environment, this activity is by no means the only threat to the preservation of the marine ecosystems. Marine pollution represents a fundamental threat as well, and the problems to fishing and the environment posed by oil pollution, heavy metals, pesticides, and the like have been well known for many years. However, among the different problems related to marine pollution, there is one that emerges as a problem for the fishing and aquaculture activity in the future: the problem of micro-plastics, for which new evidence is being put together by scientists about their abundance, accumulation and, crucially, their incorporation to the food webs and its effects on consumers. The emergence of this problem and its potential effects on the future of marine ecosystems and their exploitation deserves much attention as an important challenge. Micro-plastics have been traditionally defined as plastic elements of less than 5 mm in size, but lower threshold levels (0.5–1 mm) are also used by other scientists. They may pose a risk to

aquatic environments due to their documented ubiquity in marine ecosystems, long residence times, and propensity to be ingested by biota (Anderson et al. 2016). Micro-plastics have different origins, but can be classified in two categories: (i) those produced intentionally through specific manufacturing processes (microbeads, resin pellets, etc.) generally called “primary micro-plastics”; and (ii) those resulting from breakdown of larger plastic material, generally called “secondary micro-plastics” (Andersson 2014). Recent evidence also suggests some may come from shedding of synthetic fibers from textiles. In any case, their presence in the ocean is often associated with poor wastewater management (Markic and Nicol 2014).

Distribution and incorporation to the food chain Plastics have been well-known to accumulate in oceanic subtropical gyres, such as the Sargasso Sea (Law and Thompson 2014). In the North Pacific gyre, a study found six times higher abundance of micro-plastics than zooplankton (Moore et al. 2001). However, given their floatability and longevity, they are also distributed throughout the marine environment through hydrodynamic processes (Law et al. 2010). This includes also accumulation in marine sediments. Micro-plastics are of extremely varied sizes, including microscopic ones, equivalent to many components of plankton. The potential for their incorporation to the marine food chains through suspension feeders is obvious. As for their incorporation into sediments, it has been observed that they can also be ingested by detritus feeders, thus entering the benthic food chain (Murray and Cowie 2011). Micro-plastics may also have other secondary effects: in particular they can also provide surface for the attachment of other marine pollutants and toxic chemicals, thus enhancing and aggravating the effects of such chemicals (Mato et al. 2001). There is also evidence of plastics providing hard surfaces for fouling, thus allowing sessile

The global context: emerging challenges species to find adequate substrate in these plastic particles, which may subsequently drift to other marine areas, increasing the risks of invasive species, with subsequent risks for ecosystems as well as for aquaculture practices. There is abundant evidence of toxic effects by plastics or at least a number of its chemical components (Markic and Nicol 2014; Anderson et al. 2016). These may have direct toxic effects on many marine biota after being ingested. Although the research on this topic is recent and still largely under development, its potential effect on the marine ecosystem is extremely worrying, particularly considering the persistence of micro-plastics and the continuous rate of production and dumping of plastic material around the world.

The effects of micro-plastics on consumers The incorporation of micro-plastics in fish and mollusks poses the next question: what is their effect on consumers? This is an area where research is very recent and still largely inconclusive. In addition, as it happens always with toxicology, the levels of risk for consumers are not only a function of the toxicity of the product in question, but also of the total amount of product ingested. The potential effects of the ingestion of micro-plastics in vertebrates can in principle be considered similar to those of macro-plastics, which includes a variety of negative effects on health and reproductive capacity (Wright et al. 2013). The most obvious threat for consumers is that of bivalve mollusks that feed by filtering plankton and that are known to accumulate micro-plastics present in their environment. In a study conducted with blue mussel and oyster, Van Cauwenberghe and Janssen (2014) concluded that: The annual dietary exposure for European shellfish consumers can amount to 11,000 micro-plastics per year. The presence of marine micro-plastics in seafood could pose a threat to food safety, however, due to the complexity of estimating micro-plastic toxicity, estimations of the potential risks for human health posed by micro-plastics in food stuffs is not (yet) possible.

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This advice represents a serious warning that the issue of possible toxicity of marine species that have ingested micro-plastics deserves a lot of attention and must be addressed head-on, sooner rather than later.

What to do? The problem is more difficult to address than that of macro-plastics. The European Commission has recently proposed a strategy to address the latter, notably on the basis of the concept of circular economy, which includes inter alia, collection, and recycling (EU 2018a). However, micro-plastics and microfibers are much more difficult to handle, since physical collection of existing plastics cannot take place, or at least not with current methodologies. The problem is technically very difficult to resolve. Methods devised to remove plastics from the sea are effective only for relatively large pieces of plastic, but micro-plastics are much more difficult to remove, at least using physical methods. At least two types of solution are necessary: • For primary micro-plastics, where removal is probably impossible, the only solution seems to be the phasing out of their production. Indeed, certain European Member States, led by the Netherlands, have taken initiatives in this regard in the context of the United Nations Environmental Programme in 2015. This type of initiative should be fundamentally supported and encouraged not just as an environmental problem, but also one that can potentially affect human health and food security. • For secondary micro-plastics there can be other solutions, such as current initiatives to remove large plastic materials, better waste water management and the development of biodegradable plastics. There is a need to invest on research on methods to detect high-content micro-plastics in fish to protect consumers. But in particular there is a need to address this issue as one of global ocean governance. In this regard, the recent initiative by the Commission on the matter provides for the right platform where solutions must

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be found. These will require active policies to reduce and eventually eliminate the production of non-biodegradable plastics around the world and substantial improvements in wastewater management. But it will also require the much more difficult problem of how to remove (if at all possible) the high amount of plastics already present in the oceans that are gradually being incorporated into the food chains. This is also clearly an issue where the interest of the fishing industry and that of NGOs will tend to converge. In Chapter 9, we discussed the relationship between NGOs and the fishing industry, and how the future should be one of cooperation rather than confrontation. This issue is probably one where this cooperation may take place: the fishing industry here is clearly on the receiving end of an environmental problem. It is not the industry that is creating it: it is suffering from it, and the industry’s interest and the environmental one should coincide almost seamlessly. For the above reasons, the fishing industry should take a clear initiative. Although the solution to this problem involves a wide range of governmental and industrial interests, well beyond the reach of the fishing industry, the latter should lead by example. Anyone familiar with wild beaches in coastal areas of high exposure will have seen the accumulation of plastics brought ashore by the tides and the currents. It is safe to assume that most of these plastics come from vessels at sea, which simply throw their rubbish (including plastics) overboard. Many of these are probably fishing vessels, oblivious of the possible negative effects of these plastics on the very resource they depend on. Over and beyond some existing experiences of collaboration to remove plastics from the marine environment, the fishing industry could lead by example by adopting an active policy of not dumping plastics in the sea, and use it as an example to the rest of society about the dangers of plastics in the marine environment, and about how an industry can take a problem head on and actively contribute to solve it by setting the example.

Fisheries in the information age Today’s information society is changing the basis for decision-making in all policy areas, notably by the increasing influence of short-term, superficial messaging in public opinion, and consequently in political positions and priorities. Fisheries are no exception.

The influence of the information society on policy making Ultimately, fisheries management suffers from all the problems of the information age, just like traditional politics, increasingly questioned by the flow of superficial information that can somehow replace the in-depth analysis of objective data and evidence. A characteristic of current populism is the presentation of reality in very negative terms, to undermine the ways of addressing societal problems, thus giving rise to social demand for radical, untested alternative approaches. As Pinker (2018) points out, today’s populist view of the world’s affairs is based on a false image that the world is relentlessly deteriorating, when the contrary is true, as shown by the objective data and in-depth analysis. The alternative is the attachment, more than ever, to the values of the enlightenment: science, reason, humanism, and progress. A similar phenomenon occurs with fishing, particularly with the publication of certain scientific papers that depict very dramatic doomsday scenarios, such as for example those predicting a total collapse of the world fisheries by the middle of the century, as we saw under “The Pauly/Hilborn controversy” above. The publicity given to these publications, and the multiplication by the social media constitute a powerful tool to carry a message that fisheries are leading to collapse with the implication that fisheries management does not work so that more radical solutions are necessary. A good case in hand is the article by Kroodsma et al. (2018) mentioned in Chapter 8, which provided a very negative view of the effects of the fishing activity on the world’s oceans, and received considerable attention in the mass

The global context: emerging challenges media and the social networks. A reply to that article by Amoroso et al. (2018) providing a much more accurate view on the question received practically no media attention. This represents a challenge not only for the fishing sector, but also for the scientific community: the recent trend to publicize certain scientific works may introduce a bias in public opinion, in that this most publicized work is certainly not the only available and, also arguably, not the best-informed and more balanced either.

The bad image of industrial fishing In a world where the superficial image on an activity can have significant effects on the position that public opinion (and subsequently governments) can take on that activity, it is important to refer to the important problem of image of the fishing activity in general and industrial fishing in particular. This is leading to increasing initiatives to declare larger zones as protected from commercial fishing in certain countries (Hilborn 2018). The divide between small-scale coastal fishing and long-distance industrial fishing is clearly influenced by the position of a number of NGOs, which consider large scale industrial fisheries as unsustainable by definition, regardless of their relative merits in terms of conducting sustainable fisheries. Public campaigns such as Greenpeace’s “monster boats” are a good example: they consider that large vessels are bad per se, without reference to whether they conduct sustainable fisheries.13 The argument is biological, but also social: industrial fishing is always presented as removing fish resources that could (and should) be exploited by small-scale coastal communities. The fact that some of the industrial fisheries around the world (for example the Alaskan pollock fishery in the North Pacific) are among the most sustainable and that they exploit a resource in an area that could not possibly be exploited by small-scale fishers, does not change the negative image of this segment. 13 www.greenpeace.org/sweden/se/hav/FishFairlyOLD/boat_profile.

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The bad image is largely unfair: • Many resources are accessible only through industrial fishing. Fisheries for Greenland halibut in the Northeast Atlantic Fishery Organization (NAFO) area, at more than 200 nautical miles from the Canadian coast in the NW Atlantic, in ice cold, rough seas, can simply never be conducted by small-scale fishing. • Industrial fisheries can be sustainable. In addition to the example above, a number of fisheries for tuna by industrial vessels are also sustainable (Pons et al. 2016). • The sector tends to be more strategic, take initiatives and assume part of the cost of management. • It is generally easier to control. For example, in the Inter-American Tropical Tuna Commission (IATTC) tuna fisheries, all vessels over 400 gross tonnage (GT) have an observer on board. • Economically, it can be profitable and efficient, and not necessarily more dependent on subsides (EU 2018b). • In some cases, industrial fishing is actually the preferred option to exploit certain fishery resources by coastal communities. The eight small island States of the Pacific constituting the PNA (Parties to the Nauru Agreement) have chosen a system of licensing large-scale foreign fishing vessels as the most efficient model to exploit profitably their immense tuna resources of their exclusive economic zones (EEZ). Overall, there is no basis to say that industrial fishing is less sustainable than artisanal fishing per se. Yet, the campaigning against it continues to be rife. It has been suggested (Hilborn 2018) that one way to fend off these unfair allegations is for the industry to voluntarily ensure full transparency in their activity. This coincides with the experience of this author in connection notably with the non-discard policy (Penas Lado 2016); in the face of a challenge, what the industry will not do voluntarily will probably end up being imposed on them top–down. The industry should be proactive to respond to the allegations about the destructive nature of their

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activity; either the industry does it, or it will ultimately be imposed on them in much worse terms.

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CHAPTER 13

Adapting the CFP to emerging challenges

Adapting the CFP beyond reform In Chapter 1 we referred to the balance between policy stability and policy change. This balance is tested repeatedly on the occasion of the reform of the common fisheries policy (CFP) that takes place roughly every 10 years. But policy reform is much more than that: • Policy reform is also a gradual but determined change of practice within a given legislative framework. • Policy change is also anticipating problems and planning possible solutions before their consequences are fully realized. • Policy reform is also implementing the policy in an intelligent way in the light of emerging evidence. • Policy reform is also learning from mistakes and correcting measures when necessary. All this means that the period between two policy reforms should not be necessarily a period where no change takes place and the policy is applied automatically, but rather a period where the policy should improve gradually under the existing legal basis. As has been argued in previous chapters, a number of significant changes of practice could take place without modifying a comma of the basic regulation of the CFP.

Emerging challenges and the value of long-term strategic thinking One of the reasons why the policy should always be subject to improvement and adaptation, even in the absence of legislative change,

is the emergence of new challenges that were not so obvious when the last reform took place. Facing these challenges simply cannot wait for 10 years until the next reform. The policy has to try to adapt to these challenges within the existing legal framework. This is desirable and possible. Some of these challenges may be gradual, and their effects may become evident only in the mid-term. This may give the impression that they are not “urgent,” and that addressing them can be a matter for the next policy reform. But that would be a mistake: good policies should always anticipate problems, not just address their consequences when they become obvious. We can distinguish several ways in which this gradual change can take place: • In some cases, the policy can develop through strategic plans that will identify a problem and propose a roadmap to addressing it, using policy elements already existing or proposing a combination of these existing policy elements with others to be developed in the future. The adaptation of the policy to the “perfect storm” referred to in Chapter 4 is a good example. But perhaps a better example would be a strategic plan to adapt the CFP to climate change. • In other cases, the policy can be adapted by learning from experience and introducing new elements (all under the existing basic regulation). A very good example is the evolution of long-term management plans, where the second plan (for the North Sea, EU

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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2018) introduced two important elements compared with the first one (for the Baltic Sea, EU 2016): the target and non-target species approach, and the fast-track adaptation of the biomass and fishing mortality parameters. • The evolution of the policy can also take place, still under the same legal basis, by developing the non-legislative elements to facilitate or promote the implementation of policy instruments hitherto not implemented. We have referred to the possible implementation of real-time closures as an effective tool to reduce discards, and how the legal basis exists and only needs other accompanying factors to be applied in practice. The crucial factor for the timely adaptation of the policy (indeed, of any policy) to these emerging challenges is strategic thinking. This is one of the most important roles of the European Commission: the instrument of the Communications to the European Parliament and the Council are an ideal format to put forward strategic thinking and proposing a long-term plan to implement the necessary policy changes. In a time where policy complexity is on the rise and where the everyday responsibilities leave those responsible with very little time for strategic thinking, it is important to underline the value of this kind of instrument.

Adapting the CFP to climate change We saw in the previous chapter how global warming is starting to affect fisheries management worldwide. The question immediately arises: how does global warming affect the CFP? What changes or adaptations would be justified on this basis? And in what time scale? The changes introduced by climate change are gradual, and their effects become apparent very gradually too. This implies a risk: thinking that these changes are minimal, so no urgent change of policy is necessary. For this reason,

the adaptation to climate change constitutes a test case of the ability of the CFP to think ahead, to try to anticipate the problems rather than reacting to them. In other words, climate change provides the CFP with an opportunity to demonstrate that it can be a proactive, not just a reactive policy. But for that to be the case, it is important that the evidence of the effects, present and future, be clearly spelled out. In any case there is an obvious effect of climate change on the traditional management system of the Atlantic and Baltic Seas, based on single-stock management in rigid management areas with rigid allocation keys: climate change is a very dynamic process for which the fixed, rigid management system applied since 1983 is fundamentally ill-adapted. The management system applicable in the CFP for more than 30 years and its fixed nature will have to be adapted to face the challenge of an increasingly dynamic marine ecosystem. This also means that in the Mediterranean, where fisheries management is 30 years behind, there is an opportunity to establish a management system that, from the beginning, will develop a more flexible and adaptive fisheries management system that will address the dynamic nature of the processes taking place in that basin.

The evidence of climate change in EU fisheries This fundamental question has been subject to a specific analysis by ICES, on request from the Commission (ICES 2016). This report, of exceptional importance for the future of the CFP, refers to a number of different causes for the shift in stock distribution. Temperature changes (and thus the effects of climate change) seem to be the main driver for the observed changes in distribution. And, ultimately, what is important is to evaluate to what extent these shifts, whatever their cause, may have on the management of the stocks. ICES found that, among the 19 species studied, most exhibit some changes in their distribution, with the exception of Greenland halibut, Norway pout and spurdog, for which no

Adapting the CFP to emerging challenges evidence was found. Among them, eight were identified as being subject to very significant displacements of their traditional areas of distribution; these are called by ICES “big movers.” The following species were identified as “big movers” by ICES: • Anchovy (Northward shift in the North Sea) • Anglerfish (regional changes in the North Sea) • Cod (northward shift) • Hake (expansion in the North Sea) • Herring (changes among different management areas) • Mackerel (major changes across northeast Atlantic) • Megrims (regional changes in the North Sea, Bay of Biscay, and Celtic Sea) • Plaice (changes among different management areas). Figure 13.1 shows the changes in distribution of anchovy in recent years. The presence/ absence method shows clear increasing patterns in anchovy occurrence probability in northern divisions.

The consequences of these shifts are very clearly spelled out by ICES: The main management implication is the mismatch between regional abundances and TAC allocation, with hake and mackerel as clear examples. This mismatch, in combination with the landing obligation, could result in choke species issues and challenges the relative stability currently used to distribute quotas.

Climate change is likely to continue aggravating these shifts. According to ICES, the main risk areas are the North Sea (warming and latitudinal shift), Celtic Sea and below (warming and lower primary production), west of Scotland (northward shift), Norwegian Sea and Skagerrak and Kattegat (increase in abundance). It must also be borne in mind that not all shifts in abundance and structure are due to climate, some of these changes are due to fishing (Bell et al. 2015). It is important to distinguish the effects of climate change from the effects of fishing: adaptation to climate change should not be an alibi for poor fishery management.

Anchovy 2011–2015

Figure 13.1 Changes of distribution of anchovy in northern European waters, between 2011 and 2015.

Source: ICES (2016).

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A case study: Atlantic cod The above conclusions are applicable globally, but the problem for Europe and the CFP is better illustrated by a case study: Atlantic cod, an iconic species that has been at the origin of many of the innovations and changes introduced in the CFP. The potential effects of climate change on the distribution and productivity of cod were already studied some time ago by Drinkwater (2005). Already at that time it was considered that stocks in the Celtic and Irish Seas were expected to disappear under predicted temperature changes by the year 2100, while those in the southern North Sea and Georges Bank would decline. Cod would likely spread northwards along the coasts of Greenland and Labrador, occupy larger areas of the Barents Sea, and may even extend onto some of the continental shelves of the Arctic Ocean. In addition, spawning sites would be established further north than was the case at the time. However, this does not mean that overall productivity would be lower since individual growth rates for many of the cod stocks would increase, leading to an overall increase in the total production of Atlantic cod in the North Atlantic. More recent studies in the Kattegat confirm that future and ongoing rises in sea surface temperature may increasingly deprive cod in this region from shallow feeding areas during summer, which may be detrimental for local populations of the species (Freitas et al. 2015). In contrast, in waters of the Barents Sea the situation is the reverse. According to a recent study (Kjesbu et al. 2014) the Barents Sea cod stock has recently increased markedly and the spawning stock biomass (SSB) is now at an unprecedented high. The study shows that management alone was not solely responsible; prevailing climate, operating through several mechanistic links, positively reinforced management actions. Beyond the effects of temperature, other studies are evaluating the effects of ocean acidification. It has recently been estimated that increasing ocean acidification could double the

mortality of newly hatched cod larvae, thus resulting in a decrease in recruitment between one quarter and one twelfth of last decade’s recruitment (Stiasny et al. 2016). These predictions, uncertain though they are, clearly point at a fundamental change in the way the CFP will have to handle the management of fisheries in European waters and the relationship with the Union’s northern neighbors.

The consequences of climate change in the CFP The effects of climate change will, beyond reasonable doubt, have consequences for the CFP. These will concern both the domestic management in EU waters and the bilateral and multilateral management of shared fisheries and fisheries in international and third country waters. This has already been recognized in the scientific literature (Arnason 2012). The total allowable catch (TAC) and quota system and the relative stability are established on the basis of the ICES management areas. However, as we saw above, the areas of distribution of many stocks have been changing over the years, and this change is being accelerated by climate change. This means that the traditional management associating stocks and their relative stability to specific ICES areas is gradually becoming obsolete. The already mentioned 2016 ICES report on this question illustrates the scale and importance of the geographical displacement of the area of distribution of a number of European stocks. The problem is similar in the case of resources shared between the Union and third countries of the NE Atlantic, such as Norway, Iceland, and the Faroe Islands. The case of Atlantic mackerel can be considered, arguably, the first case in which the displacement of the area of distribution of a stock (arguably due to climate change) altered the traditional agreement on allocation among the parties concerned, leading to a conflict over the distributive arrangements for that stock. This kind of phenomenon is likely to happen with other stocks as their area of distribution gradually changes.

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Beyond issues of management and allocation, changes in stock distribution may also have effects on economic performance, due to changes in the abundance of the traditional species and the difficulty to replace them with new, emerging ones in traditional markets. In the international context, an obvious consequence is that the traditional allocations agreed in the context of Regional Fisheries Organizations, already subject to questioning and tension, will likely aggravate in the future, as we saw in Chapter 10. Global warming will also question many other aspects of the CFP. The higher frequency of storms and the possible deterioration of coastal infrastructure may displace the main focus of the structural policy toward mitigation. The changes in economic expectations as a result of the geographical displacement of traditional stocks may aggravate conflict among Member States, regions, fishing communities or fleet segments. The growing public interest in climate change may also introduce new demands by consumers, which can be an opportunity for those taking measures to mitigate negative effects on global warming. The markets may also have to start looking at species currently unknown or having a low value. All these questions are of such gradual nature that they may not seem to justify urgent action. That is their main risk: that they will be considered as a low priority, and that could mean that the CFP may one day have to address their negative effects rather than anticipate the possible adaptations to mitigate them.

a 7-point plan to adapt the US management system to global warming, based on a new science strategy to address all the presumed effects of climate change. The points are: • Determine climate-informed reference points. • Identify robust strategies for managing marine resources under changing climate conditions. • Design decision processes that are robust to climate change scenarios. • Predict future states of resources and ecosystems and dependent human communities. • Determine the mechanisms of climate change related effects on ecosystems. • Track trends in resources, ecosystems, and human communities to provide early warning to change. • Build and maintain the science structure to fulfill the mandate of the NMFS under changing conditions. These steps are of a general nature, not country-specific and can constitute a reference of what the EU could look into when considering a similar plan. But specially, they are anticipative, not reactive, something the CFP must improve on for the future, thus reflecting the fact that the gradual nature of the climate change effects can induce the error of considering that “we have plenty of time” to react. In practice, the above strategy responds to the opposite philosophy: that it is not too early to adapt, and that if no change is introduced, then the effects of climate change will no doubt catch up when it is too late.

The US example There are good examples of how this is being addressed in other places. A fundamental step by the National Oceanic and Atmospheric Administration (NOAA) has been to adopt a strategy to adapt the science basis for the policy to climate change.1 And NOAA’s National Marine Fisheries Service (NMFS) has adopted

A strategic plan to adapt the CFP to climate change The US example above is an important source of inspiration for what is a fundamental debate for the future of the CFP. The consequences of climate change are such that the CFP needs to develop a strategic plan to adapt to this challenge. This plan cannot wait until the next policy reform; it has to be addressed now, among other reasons because much, if not most of what needs to be done, is possible under the

1 www.st.nmfs.noaa.gov/ecosystems/climate/ national-climate-strategy/

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current legal framework. Possible elements for such a strategy are presented below. New scientific advice There are several questions that will have to be integrated in the scientific advice as the CFP will try to grapple with the effects of climate change. Some of the most obvious ones are: • Re-evaluating parameters such as Bpa , Bmsy , and even fishing mortality rates as a function of changing circumstances. • Observing changes in the natural distribution of the stocks, (ICES 2016) further to the 19 stocks already studied by ICES. • Observing the changes in the composition of species, including the presence of invasive species, and assessing the ecological effects, including the new species relationships. • Assessing possible changes in the overall productivity of fish stocks in different areas, and the contribution of different species to that productivity. • Evaluating how the changes in stock abundance and location can affect the economies of coastal communities depending upon them. This should be subject to a specific debate where all possible questions of interest should be discussed between science, managers, and stakeholders. Revising management areas This is the most important and clear challenge for adapting the CFP to the effects of climate change. The traditional management areas for the EU-managed stocks (the areas for which catch limitations and allocation keys are established), were established in many cases several decades back, and are becoming obsolete, as an increasing part of the biomass of the stocks concerned may occur outside these management areas. This has the potential effect of undermining management and creating conflict. There are precedents in the way changes in management areas have influenced quota allocations. On the occasion of the division of the Baltic cod stock into two stocks (east

and west) the new scenario required a new allocation key, which was negotiated ex novo (Penas Lado 2016). It is difficult to see how the displacement of the fish could simply be followed by a corresponding displacement of the traditional fleets catching it, without any change in allocation. If we take the above example of anchovy, the extension of the stock to the North Sea would have very clear implications for the fleets having the traditional fishing rights; coastal purse-seiners from Northern Spain could not possibly go to Kattegat to fish that anchovy, while Danish industrial vessels would probably not be able to avoid catching it in that area. In these circumstances, keeping the traditional allocation keys would be an extremely inefficient way to allocate resources to the fleets that could catch them profitably. Obviously, the same would apply to all other stocks subject to significant displacements. This would be difficult to do because it may have some inevitable consequences on relative stability. But failing to do so will only lead to an increasing number of conflicts. As we will see in Chapter 14, it is better to take these issues head-on, and try to resolve them through a transparent, deliberative process rather than having to resolve the emerging crisis on an ad hoc basis. The effects on the EU shares of international fisheries The allocation of shared stocks is and will always be controversial and subject to pressure for change. These pressures exist in certain international organizations even regardless of climate change: as coastal States develop an interest to fish for certain stocks, the existing status quo becomes more difficult to accept by them. The best example is ICCAT, where the allocation of bluefin tuna is permanently subject to pressures to allow new entrants. In the neighboring EU policy, it is already obvious through the example of Atlantic mackerel that the displacement of the biomass northward will create new expectations for higher quotas by countries of the North Atlantic. And, given the important role that some of the

Adapting the CFP to emerging challenges shared stocks have in the overall balance of quota exchanges between the EU and Norway, climate change will likely exacerbate these effects. These cases call for a forward-looking EU strategy to combine the defense of the legitimate traditional fishing rights while addressing the changing picture in which new players are claiming a higher share of the common resources, as we referred to in Chapter 10. Revised structural policy to facilitate adaptation The European Maritime and Fisheries Fund (EMFF) adopted in 2014 represented probably the biggest departure from the traditional status quo of the structural policy since 1970, perhaps with the exception of the suppression of aid to the construction of new fishing vessels adopted in the 2002 reform. Even so, regulation 508/2014 still contains many elements and eligible actions that make it look relatively similar to previous instruments. Article 41 of Regulation 508/2014 on Energy efficiency and mitigation of climate change lays down a number of measures aiming at reducing the effects of fishing on global warming, but these are practically limited to reducing the carbon footprint through improvements in engines, and there is no obligation for Member States to prioritize the adoption of such measures. As the effects of climate change unfold, the structural policy should become much more ambitious in this regard, and should consider a whole new set of possible measures, including for example: • Funding of projects to develop new markets for the new species compositions that may appear. • Funding of projects to compensate local losses due to the displacement of traditional species. • Infrastructure actions to cater for the possible displacement of adequate areas for different types of aquaculture. These are just examples of what should be, sooner rather than later, a new emphasis on

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focusing the future structural policy to more clearly defined objectives. A mitigation strategy We have seen in the previous chapter how different systems of food production have very different levels of impact on climate change. Beyond that, a recent study has also shown that these impacts can vary up to 50-fold for producers of the same food (Poore and Nemecek 2018). This implies that there is a considerable room for mitigation at the level of producers. An associated question, also developed by the above authors, is the active participation of consumers in a mitigation strategy. Through increased information on the carbon footprint of different types of seafood (and other source proteins) consumers may have a fundamental role to play in choosing food items with a (certifiable) lower impact on climate change. . . . And a new policy approach The above adaptations are also an opportunity to advance in the new paradigm of policy making under the CFP, as explained in Chapter 9. Indeed, the effects of climate change are likely to be gradual but continuous. Its very nature means that the changes to the policy are not necessarily radical changes every 10 years, but rather a slow and gradual process of policy adaptation and adjustment in small steps, and this, in turn, calls for a much more flexible policy, where technical rules could be easily adapted through collaborative management, and hard-law regulations are kept to the minimum necessary.

More food from the sea As we saw in the previous chapter, protein from seafood will have to play an essential role in the future supply of food for humankind. And the effects of global warming on agriculture and husbandry on land will only exacerbate this role. So far, the CFP (just as the fishery policy of most developed countries around the world) has been judged fundamentally on its

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performance to reduce overfishing and achieve sustainable fisheries. In the future, however, the policy should also be fundamentally judged on its ability to maximize the production of sustainable seafood. An objective that, after all, is that of Article 39 TFEU. Europe is well-known to have a significant deficit of fish: the EU produces only 46% of the fish it consumes (see Chapter 1). This represents a policy failure since Article 39 TFEU is clearly about food security. And while much of the imported fish comes from countries with well-managed fisheries (Norway, Iceland, etc.) much also comes from poorly-managed fisheries. This implies that the EU’s failure to take full advantage of its fishery resource also contributes to over-exploitation in certain third countries (see “leakage” in Chapter 10). For this reason, improving the production of seafood in the EU is also an imperative of the EU’s legal basis.

Seafood vs. land-based food This debate is also important from another point of view: the comparison between the effects of seafood as compared to land-based food. This is important because it shows not only the possibilities of developing seafood production, but also the need and opportunity to do so. Emerging evidence of the carbon footprint and other environmental effects of seafood clearly show how it compares favorably to many land-based animal protein production systems. In a recent meta-analysis of ca. 150 animal protein production systems around the world (comparing them for energy use, greenhouse gas emissions, release of nutrients and acidifying compounds) many seafood sources have a lower carbon footprint and a lower environmental impact than livestock production on land (Hilborn et al. 2018). This puts the production of seafood in a very positive light in terms of the challenge of feeding the planet while fighting climate change and reducing impact on the ecosystems. In effect, the study shows that the production systems of animal protein with the lowest environmental impact are mollusk aquaculture and

capture fisheries for small pelagic fish, whereas the highest impact methods are beef production and catfish farming in freshwater. This is extremely important, because it gives a signal that the development of seafood production is preferable to that of land-based animal protein, and that the production of the extra food that humankind requires should be produced from the oceans as much as possible.

Is the EU producing enough food from the oceans? As we saw in Chapter 2, Article 39 TFEU is clearly based on the notion of food security for Europe. In this context, the above question is not rhetoric: it amounts to asking whether the fundamental objective of the fisheries (and agriculture) policy is being achieved. The answer for fisheries is straightforward: no. Figure 13.2 shows the evolution of the production of capture fisheries and aquaculture in the EU. The figure shows that the EU is not being able to increase substantially its production of seafood. While capture fisheries seems to look more promising (the lowest level of production took place in 2012 and has increased slightly ever since), aquaculture production remains stagnant. As a result, the self-sufficiency rate of the EU in seafood is in the vicinity of 40%, and not growing, as shown in Figure 13.3. Some background The need to produce more food from the sea has been clearly identified by the European Commission as a very important strategic objective, and a fundamental element of its global ocean’s governance strategy. A report by the High-Level Scientific group appointed by the EC (EU 2017) considered in particular 15 options to work on, as follows: 1 Improve management of the established fisheries on wild species. 2 Tackle the problem of discards and other wastes. 3 Redirect part of the landings from reduction to direct human consumption. 4 Harvest wild species at lower trophic levels. 5 Support mariculture.

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9000 8000 7000

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Figure 13.2 Evolution of the total production of capture fisheries and aquaculture in the EU since 2000. In

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6 Integrate multi-trophic aquaculture. 7 Support rights-based management. 8 Support start-ups. 9 Ensure the long-term viability of start-ups. 10 Provide trustworthy consumer information. 11 Cultivate new approaches to social responsibility.

12 13 14 15

Involve citizens and relevant stakeholders. Prioritize resulting new jobs. Introduce financial strategies. Design new coastal and engineering developments. The above ideas are an interesting approach to the question, but from a fisheries management point of view they are of very variable

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interest, and in some cases do not go far enough in analyzing potential issues of interest. Some of the above ideas have been discussed in previous chapters (rights-based management, mariculture development, redirecting low value fish for direct human consumption, etc.) and we will not revisit them here. But there are certain questions that require a more in-depth analysis.

Are there untapped fish resources? The increasing pressure on the world’s sources of animal protein makes it opportune to ask this question. In principle, there can be three sources of additional capture fisheries. The first and most obvious one is that of existing, well-known resources that are not fully exploited. As referred to above, many scientists have identified a number of resources where additional yields from the ocean can be derived from fishing harder. But beyond these, there are also other resources where the extra potential is identified but not fully realized. Two examples are worth mentioning: krill and mesopelagic species. Krill Krill (Euphausia superba) is not a new or untapped resource, but it is still one that, by virtue of its sheer productivity and abundance, is still often referred to as amenable to expansion. Some countries are already exploiting the krill (Norway) or having plans for a substantial development of this fishery, like China. CCAMLR has established a number of management measures for this species. Total catches are, however, not increasing, and have evolved from levels around 40 000 tons between the late 1970s and the early 1990s to levels in the order of 20 000 tons in recent years, so there seems to be a substantial potential for additional catches.2 However, even CCAMLR catch limits are seriously questioned by NGOs. The reasons are obvious: krill constitutes the main food source for a number of whales and other

species. This example encapsulates the debates between sustainable exploitation of marine resources and environmental conservation. In any case, the quotas established by CCAMLR, based on the best scientific advice available, do take into account the role of krill as food for whales. Theoretically, nothing should oppose (if the science is right) that the full potential of krill be exploited as is the case with so many forage fish around the world. Mesopelagic fish These stocks are known to occur in relative deep waters of the continental slope and the open sea, and tend to be associated to the ocean’s thermoclines. They live at greater depths in daylight (several hundred meters) but migrate to shallower waters (up to 50 m) at night to feed and be fed upon. Neither pelagic nor demersal, these stocks have long been relatively ignored by the fishing industry, although scientists have referred to their potential for some time. The main difficulty to exploit these species is their still unclear role in the pelagic ecosystem. In particular, their role as food for large pelagic fish that are either exploited (tuna, swordfish) or need protection (threatened sharks). FAO carried out a study on the potential of mesopelagic species for commercial harvesting,3 and considered that several factors should be taken into account: behavior in relation to fishing techniques (schooling behavior), diel migrations, attraction to light, potential yield and variability, and marketing and processing possibilities. Overall, it seems prudent not to count on these resources as a real possibility until their ecological role is clarified further. When the idea of reserving a part of the biomass of forage fish for their predators is making headway in a number of management systems, the possible exploitation of mesopelagic fish should first be assessed in the light of its possible contribution to sustain the biomass of tunas and other large pelagic fish. 3 https://archive.org/details/

2 www.ccamlr.org/en/fisheries/krill/

reviewoftheworld034721mbp/page/n1/

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Exploiting the lower trophic levels This idea is based on the evidence that the abundance of marine organisms decreases as trophic level increases. Traditional wisdom assumes that as we escalate on the trophic pyramid of the sea, each trophic level has roughly 10% of the overall abundance of the trophic level just below: zooplankton production is roughly 10% of that of phytoplankton and so on. The implication is obvious: by shifting consumption patterns to low trophic level organisms the total production of seafood would be much higher. The fact that a significant part of the production of low-level fish (short-lived, plankton-feeding fish) is used to produce food for farmed fish of high trophic level encourages this idea: by shifting from salmon to sandeel we could dramatically increase the production of food for humans. This is in fact the most prominent idea of the above study commissioned by the EU. Things are not that simple. For that overall strategy to work, a number of considerations should be made: • The human consumption market would need to accept the low-value species, something that may be culturally difficult to do in mature fish markets. • In terms of prices for fishers, the advantages are not obvious: while most low-level fish fetch very low prices, the highest prices are always associated to high-trophic level fish. • The ecological effects of a higher rate of exploitation of low-trophic level organisms and a lower rate of high-level would need to be evaluated. This is far from being obvious, particularly in the light of the notion of balanced harvest (see Chapter 8). The idea in any case is attractive and would need to be studied more in depth to address the above (and possibly other) shortcomings. Improving quota consumption As we saw in Chapter 2, the consumption of quotas in EU fisheries is lower than 80%. An obvious way to increase food production would be to increase the efficiency of quota consumption. This would imply a certain number of

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initiatives, some of which have already been referred to in different chapters: • Advancing toward more multispecies management (see below), thus eliminating choke species affects. • Promoting the consumption of low value species, through European-wide campaigns. • Revising relative stability to have a better match between the basket of fishing rights by Member States and fleets and the economic interest of their markets (see Chapter 14). These ideas can be developed gradually, some of them without necessarily changing the legal basis of the policy.

Changing the policy paradigm: a policy based on exploiting the surplus of the marine ecosystem, not individual stocks We have abundantly referred to the inefficiencies of a fishery management system based on objectives and strategies designed to manage individual stocks. To address this question the policy could evolve by introducing the notion of maximum sustainable yield (MSY) of the ecosystems or, at least, of well-defined groups of stocks. The changes suggested above would require a change of paradigm in the definition of policy objectives. To achieve the change of policy necessary to support the above ideas, the basic regulation of the CFP would need to reflect the maximization of the production of sustainable seafood as a central policy objective. Such strategy would also have another advantage: it would provide for a much higher stability in the supply of fish. Figure 4.3 in Chapter 4 shows the evolution of the abundance indicator SSB/MSY Btrigger in a number of groups of fish in the greater North Sea. It can be observed that while the specific groups of species are very highly variable in abundance over time, the total portfolio of species remains remarkably stable. This would of course also have significant downsides, such as those of the market prices of different species and would also require a more flexible way of allocating fishing quotas: the same amount of fish would have different

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market value depending upon the catch composition of the total production of fish at any given moment. This implies that an important part of this part of the strategy would be to use the market mechanisms of the CFP to promote the consumption (directly or through processing) of species with hitherto a low market value and/or largely unknown for most consumers. In any case the focus on total sustainable output from the oceans may actually contribute to a more efficient and more stable supply of fish for European consumers. This is an idea with far-reaching consequences for the policy, some of them probably requiring some changes in the basic regulation of the CFP. But if the objective of food security the Treaty is to be taken as a real priority, a discussion on possible options to bring about this change may have to start sooner rather than later.

Developing new aquaculture practice As we saw in Chapter 12, aquaculture can still have a significant potential for growth in the EU, but this will require a new approach, based on diversification and on exploiting the physical spaces where competition with other activities would be lower than in coastal zones. We have already identified offshore and land-based greenhouse aquaculture as two promising possibilities. Their development would require a dedicated approach to the EU policy to promote their investments, with new policy components such as for example maritime spatial planning.

The integration of fisheries policy into a wider policy context The wider notion of fisheries management The CFP, and in general all fisheries management policies, are a sectorial policy that “only” deals with fisheries. However, the meaning of “fisheries management” is one that evolves over time. While in 1983 the initial CFP only dealt with a narrow range of questions, all restricted

to the conduct of the fishing activity, the range of associated issues being considered as part of the overall heading of “fisheries management” has not ceased to expand. At present, the management of marine fisheries is at a crossroads where, beyond the management of commercial fisheries, there are important associated questions related to the restoration of marine habitats, biodiversity conservation, greater returns to fishing communities, food security or poverty alleviation (Grafton et al. 2008). In recent years, the CFP has gradually lost its traditional policy isolation, and today it is increasingly influenced by other policies, notably environmental policy (Princen 2010). This has inter alia, one important consequence: fisheries management is no longer a matter of interest for fisheries constituencies alone, but for society at large. Yet, this gradual but substantial change is still largely ignored by many stakeholders, and often not fully taken into account in the management system. The recent development of the integrated maritime policy, together with the new Commission’s integrated approach to ocean management, as represented by the Marine Strategy Framework Directive (MSFD) change the place of the CFP in the context of maritime affairs (van Hoof and van Tatenhove 2009). Once isolated and protected as a stand-alone policy, the CFP will have to face in the future a growing influence from these two policies, which imply different stakeholders (some of them far wealthier and more influential than the fishing industry) and a different institutional competence. The MSFD is mixed competence, unlike the CFP, and this means that the isolated EU decision-making will be exposed to a completely different decision-making process, where the most influential stakeholders will not be the fishing industry, and where decisions will be made, affecting the fishing activity, in a way that the CFP itself would probably never do. This may have different consequences, some of them difficult to predict. However, it would seem clear that the fishing activity will have

Adapting the CFP to emerging challenges to fight for its place and legitimate interests in an increasingly complex world. This will require, inter alia, an institutional setting and governance systems that put fisheries in a fair place when it comes to considering trade-offs among different maritime activities, but it will also require a fishing industry that will be well organized and integrated to defend its legitimate interests, and this means that the traditional paternalism must gradually disappear.

The relationship between fisheries and other economic sectors Fishing is commonly considered as a relatively small economic sector within the maritime economy, somewhat dwarfed by the sheer economic force of the energy or transport sectors. However, in terms of its socio-economic importance, marine fisheries is probably second to none of its competitors in the world’s oceans. Capture fisheries employ tens of millions of people (FAO 2014). The total value of capture fisheries is estimated at US$ 80 billion and, including processing and retailing, the total value is estimated at US$ 200 billion. While the total economic value of fishing in the oceans is relatively small compared to oil and gas and maritime transport, the importance for employment is far greater, and its role in food security is of utmost importance (Hilborn and Costello 2018). Fisheries have never been an isolated activity, but in recent times the interaction between fisheries and other uses of the maritime space are increasing. There are some clear examples such as fisheries and energy, where the development of marine wind farms is reducing the sea surface available for fishing; or environmental protection, where different initiatives both at EU and international level are calling for the protection of larger and larger marine areas to preserve marine biodiversity, thus reducing the surface available for commercial fishing. In the future, these interactions will require ever more complex policy decisions. Today, some of these decisions are made on the basis of political influence or sheer economic power,

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something where the fisheries sector cannot compete with other societal interests. For this reason, it is important that an integrated ocean governance system be developed which gives fisheries (and aquaculture) a place at the negotiating table on an equal footing with other maritime sectors. A good example of how this can be achieved is the implementation of maritime spatial planning. The EU Directive adopted in 2014 (EU 2014) brings an opportunity to discuss all the uses of the marine environment in a structured, objective, and fair way, thus preventing that the occupation of the maritime space will respond to the “first come first served” principle, which in the long run would certainly not favor the fishing industry. The opportunities offered by this directive should be seized by the fishing industry as the best way to defend its legitimate interests in a context of growing, and increasingly conflicting, occupation and use of the maritime space.

The challenge of science vs. social influence The fishing industry must also consider the wider context of the current trend toward the increasing influence of public opinion by quick information and campaigning, largely through social media, which increasingly seem to replace in-depth analysis as the main driver for policy action. Fisheries issues that years ago were discussed only in fisheries constituencies and based on scientific advice, are now increasingly dominated by a public opinion understandably influenced by the easy and quick access to many different sources of information, including a number of them of doubtful legitimacy, or many others defending vested interests. In today’s world, the effect of public opinion on fisheries policy is increasing, and is clearly there to stay. This implies that there is a growing challenge in keeping the knowledge base for fisheries decisions away from campaigning and the various influences available in social media, and in keeping such decisions well anchored on a solid, reliable knowledge basis that, by its

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own nature, is hardly amenable to quick, easy dissemination. A good example of this is the tendency to consider the repercussion on social media of an idea or a position as a measure of its success, regardless of its own merits when analyzed with calm and objective criteria. The risk of taking decisions on the basis of this social influence (not always innocent or objective) instead of well thought-out arguments is very real for the fishing industry. This is also the case for many other economic sectors, but in the specific case of fisheries, its relatively small size and economic muscle when compared to other sectors present in the maritime environment (energy, transport, etc.) or competitors in the food production market (livestock) makes this industry particularly exposed to the above risk. This question has wider implications, in that the above trend is part of a much larger phenomenon where social media introduce an element of superficiality and immediateness in the way different societal interests shape up policies through influence. In this new context, it becomes increasingly difficult to separate the solid evidence from the noise, and the real position of society from the trends visible in the social media. In recent times, there has been a multiplication of headlines in the mass media coming from well-publicized scientific articles (see for example, Kroodsma et al. 2018). These have a remarkable capacity to mobilize public opinion. However, whether these articles really represent the best available science is a different question. This challenge calls for a reinforcement of the instruments to provide a reliable, objective basis for policy making. For the fisheries sector, this implies that the scientific advice (including of course economic and social data) must be preserved as the basic source of information for decision-making. The fishing industry, with little capacity to win the battle of economic and social influence, must wholeheartedly cooperate with the provision of good, reliable science. This is their best defense, but this also implies that fisheries managers, particularly in

the Commission services, must ensure a high level of understanding of the scientific basis for management. A high level of scientific literacy is absolutely essential to be able to tell apart the reliable scientific information from the noise from today’s information society.

Bridging the chasm: a “new deal” between the fishing industry and environmental NGOs? As we saw in previous chapter, particularly in Chapter 9 on governance, the differences between the fishing industry and NGOs is a source of continuous friction in fisheries management. The question is: could what seems an inevitable confrontation based on two opposite conceptions of the management of the oceans’ resources, one day become some kind of alliance? From enemies to strategic allies? The idea is not necessarily far-fetched, in particular if we look into this question from a strategic point of view. In effect, as we have seen in this section, the world’s oceans are subject to an increasing degree of utilization by a number of human activities with an economic interest. Many of the economic uses of the seas, such as transport, energy production, seabed mining, oil and gas drilling, and so on, do not depend on a clean environment to prosper. On the contrary, if certain areas are environmentally degraded, those industries could claim that any objection against their activity would be unjustified, since there would be no pristine nature to protect in these areas. Often too, the tourist industry is also responsible for a high degree of occupation of the coastal space, with the inevitable loss of coastal ecosystems. In turn, the industries that do require clean, healthy marine ecosystems to thrive are mainly fisheries and aquaculture. If we look at this question from that particular perspective, one could actually think that these industries should be potentially the best natural allies of NGOs in preserving the health of marine ecosystems. Can this potential be really developed in the future?

Adapting the CFP to emerging challenges How to promote the strategic partnership The strategic partnership cannot be established with all NGOs. These are very varied in terms of their agendas, methods, objectives and, crucially, funding. Some NGOs have their raison d’être in a permanent struggle against a number of fishing practices, and no cooperation with the industry seems likely to happen. However, other NGOs are based on a different principle, that of cooperation with the industry. In Europe, an NGO like WWF has successfully engaged in a number of cooperation projects with the fishing industry.4 Another example is the Environmental Defense Fund (EDF). Founded by scientists, EDF members are evidence-based advocates. They find economic incentives to drive environmental progress.5 EDF advocates using sound science, economics, and law to find solutions that work. It is non-partisan, and its work often advocates market-based solutions to these problems. EDF has a long history of partnerships with corporations, fund managers, landowners, farmers, fishermen, and other groups.6 In the US, they have become a crucial actor in the development of a sound policy from both an economic and an environmental standpoint, notably through their work within Regional Advisory Councils. An idea to consider is that of developing specific collaboration projects in areas where there is a clear common interest. For example, developing a plan to make the European fishing industry “plastic free” (by phasing out the use of plastics on board fishing vessels and by contributing to the recovery and subsequent recycling of plastics in the sea) would be a win–win for both parties. The idea of developing a new prototype of fishing vessel, with a low environmental impact, low carbon footprint and optimal safety and working conditions on board could also be an excellent opportunity for

4 www.worldwildlife.org/pages/partnerships/ 5 www.edf.org/ 6 https://en.wikipedia.org/wiki/Environmental_ Defense_Fund/

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collaboration, that will be, again, of common interest. In the emerging context of marine management, and taking into account the sheer financial muscle and political power of some of the players, the fishing industry needs allies to continue its legitimate operation. They need allies who advocate the preservation of the ocean space as an area of high production of seafood, which in turn requires healthy marine ecosystems. It does not take much to realize the strategic challenge and opportunity.

Recreational fisheries in Europe Recreational fisheries are very important in Europe, probably much more than they are usually given credit for. This importance is twofold: • They represent a very significant level of economic activity, notably through ancillary activities, such as travel, boat rentals, lodging, etc. • They represent in a number of cases a very substantial contribution to the fishing mortality of certain stocks and have therefore a significant impact in the management of such stocks. The fact that this mortality is often not evaluated and incorporated in the evaluation of stocks can undermine the quality of the advice and the management measures adopted. Yet, recreational fisheries have traditionally been practically absent from fishery management under the CFP, and different attempts to include them have met considerable resistance. Overall, however, the exclusion of recreational fisheries from the CFP is at loggerheads with the emerging evidence of its importance. The current status of this activity certainly deserves a re-evaluation. Hyder et al. (2014) provide an excellent summary of what recreational fisheries represent today in Europe: 8 million anglers spending over EUR 8 billion a year. A study in the UK revealed that recreational sea fishing represented EUR 1.55 billion in 2012, supporting

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an estimated 10 000 full-time equivalent jobs (Armstrong et al. 2013). In France a similar study estimated EUR 1.3 billion in 2006 and 2007 (Herfaut et al. 2013). In terms of contribution to fishing mortality of stocks regulated under the CFP, studies in several Member States estimated that recreational fishing was responsible for around a quarter of all fishing mortality on sea bass in the North Sea, English Channel, Celtic Sea and Irish Sea (ICES 2014a,2014b). In Germany, recreational fishing for cod has represented as much as 70% of the German commercial cod landings! (Eero et al. 2014). The effects are obvious, not only in terms of the total fishing mortality, but also, in the case of catch and release, there can be mortality due to hooking and handling stress (Suski et al. 2003) and behavioral changes that may favor mortality from other causes (Cooke and Philipp 2004). A more recent study revealed that among 20 stocks studied, the percentage contribution to total removals (recreational + commercial removals) by recreational fishing ranged between 2% for Atlantic mackerel in the North Sea and Skagerrak to 43% for Atlantic pollack in the Celtic Seas and English Channel (Radford et al. 2018). It is remarkable that the CFP has so far ignored such a significant source of fishing mortality in a certain number of stocks. This is due to political opportunity, and the idea that trying to regulate recreational fisheries would amount to typical EU over-regulation that has been subject to so much criticism. For a stock known for a high incidence of recreational mortality, on the occasion of a very difficult discussion on how to handle such mortality, only one Member State (Germany) actually provided data on recreational catches. The incomplete information about recreational fishing seriously undermines the EU’s efforts to manage the stocks properly.

The US case In the US, recreational fishing is an increasingly popular activity that, for some species, takes a significant amount of the total number of fish caught in a year – sometimes more than

commercial fishing. To ensure that fish populations are not over-exploited, managers monitor recreational fisheries through surveys. These surveys are regularly reviewed. The management of these fisheries is part of the mainstream fisheries management through the eight Regional Fishery Management Councils. These Councils discuss, inter alia, crucial questions of the allocation of total catches between commercial and recreational fisheries. For this purpose, NOAA’s Southeast Fisheries Science Center has produced three technical papers to inform councils’ discussion related to allocations between 2008 and 2014. In the US, recreational fishing has a very high profile. The Magnusson-Stevens Act includes recreational fishing among the key activities. In its Section 2 on “Findings, Purposes and Policy” it states that the US fishery resources: . . . contribute to the food supply, economy, and health of the Nation and provide recreational opportunities.

Recreational fisheries are an integral part of the core purposes of the law. This contrasts with the lack of references about this activity in EU law. The consequence of the above text is that recreational fishing constitutes in principle an integral part of the US fish management system. It is one that is subject to specific considerations: in 2018, US Congress adopted the Modernizing Recreational Fisheries Act,7 which recognized that commercial and recreational fisheries are different and their management, though science-based, should take into account these differences. Overall, however, the management of recreational fisheries in the US is not necessarily a success story. The complexity of the activity and the extraordinary number of participants, the sheer difficulty of collecting data, the almost hopeless enforcement in many cases, and even the differences between the Federal Government and the States, all these factors raise frequent questions as to what is the purpose 7 www.congress.gov/bill/115th-congress/senate-bill/

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Adapting the CFP to emerging challenges and the added value of this management. However, the US system has the merit that the whole activity is not simply ignored, and that whatever the management solutions, at least the dimension of the activity and its influence on the overall resource management system are addressed and taken into account. This certainly goes beyond what the CFP has traditionally done.

References Armstrong, M., Brown, A., Hargreaves, J., Hyder, K., Pilgrim-Morrison, S., Munday, M. et al. (2013). Sea Angling 2012 – a survey of recreational sea angling activity and economic value in England. Defra report, © Crown copyright 2013. Arnason, R. (2012). Global warming: new challenges for the common fisheries policy? Ocean and Coastal Management 70: 4–9. Bell, R.J., Richardson, D.E., Hare, J.A. et al. (2015). Disentangling the effects of climate, abundance and size on the distribution of marine fish: an example based on four stocks from the Northeast US shelf. ICES Journal of Marine Science 72 (5): 1311–1322. Cooke, S.J. and Philipp, D.P. (2004). Behavior and mortality of caught-and-released bonefish (Albula spp.) in Bahamian waters with implications for a sustainable recreational fishery. Biological Conservation 118: 599–607. Drinkwater, K.F. (2005). The response of Atlantic cod (Gadus morhua) to future climate change. ICES Journal of Marine Science 6 (7): 1327–1337. Eero, M., Hjelm, J., Behrens, J., et al. (2014) Eastern Baltic cod in distress: biological changes and challenges for stock assessment. ICES Journal of Marine Science, 72 (8): 2180–2186 EU (2014). Directive 2014/89/EU of the European Parliament and of the Council of 23 July 2014 establishing a framework for maritime spatial planning. OJ L 257, 28.8.2014, p. 135–145. EU (2016). Regulation (EU) 2016/1139 of the European Parliament and of the Council of 6 July 2016 establishing a multiannual plan for the stocks of cod, herring and sprat in the Baltic Sea and the fisheries exploiting those stocks, amending Council Regulation (EC) No 2187/2005 and repealing Council Regulation (EC) No 1098/2007. Official Journal of the European Union L 191 of 15.7.2016, p. 1. EU (2017). Food from the oceans. High Level Group of Scientific Advisors. Scientific Opinion No. 3/2017, 71 pp.

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EU (2018). Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks, specifying details of the implementation of the landing obligation in the North Sea and repealing Council Regulations (EC) No 676/2007 and (EC) No 1342/2008. OJEU L179 of 16.7.2018, p. 1. FAO (2014). The State of World Fisheries and Aquaculture: Opportunities and Challenges. Rome: Food and Agriculture Organization, 223 pp. Freitas, C., Olsen, E.M., Moland, E. et al. (2015). Behavioral responses of Atlantic cod to sea temperature changes. Ecology and Evolution 5 (10): 2070–2083. https://doi.org/10.1002/ece3.1496. Grafton, R.Q. Hilborn, R., Ridgeway, L., et al. (2008) Positioning fisheries in a changing world. Marine Policy 32 (4): 630–634 Herfaut, J., Levrel, H., Thébaud, O., and Véron, G. (2013). The nationwide assessment of marine recreational fishing: a French example. Ocean and Coastal Management 78: 121–131. Hilborn, R. and Costello, C. (2018). The potential for blue growth in marine fish yield, profit and abundance of fish in the ocean. Marine Policy 87: 350–355. https://doi.org/10.1016/j.marpol .2017.02.003. Hilborn, R., Banobi, J., Hall, S.J. et al. (2018). The environmental cost of animal source foods. Frontiers in Ecology and the Environment https://doi.org/ 10.1002/fee.1822. van Hoof, I. and van Tatenhove, J. (2009). EU marine policy on the move: the tension between fisheries and maritime policy. Marine Policy 33 ((4): 726–732. Hyder, K., Armstrong, M., Ferter, K. and H. Strehlow (2014). Recreational sea fishing – the high value forgotten catch. ICES News and Events. Available at: www.ices.dk/news-and-events/news-archive/ news/Documents/Pages%20from%20ICES %20Insight%202014.pdf/ ICES (2014a). Report of the Working Group for the Celtic Seas Ecoregion (WGCSE) 2014, 13–22 May, Copenhagen, Denmark. ICES CM 2014/ACOM: 12. ICES (2014b). Report of the Working Group on Recreational Fisheries Surveys. 2–6 June 2014. Sukarrieta, Spain. ICES CM 2014\ACOM:37. ICES (2016). Report of the Working Group on Fish Distribution Shifts (WKFISHDISH). 22–25 November 2016. International Council for the Exploration of the Sea. ICES CM 2016/ACOM: 55. Kjesbu, O.S., Bogstad, B., Devine, J.A. et al. (2014). Synergies between climate and management for Atlantic cod fisheries at high latitudes. Proceedings

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of the National Academy of Sciences of the United States of America 111 ((9)): 3478–3483. Kroodsma, D.A., Mayorga, J., Hochberg, T. et al. (2018). Tracking the global footprint of fisheries. Science 359: 904–908. Penas Lado, E. (2016). The Common Fisheries Policy: The Quest for Sustainability. Wiley Blackwell, 392 pp. Poore, J. and Nemecek, T. (2018). Reducing food’s environmental impacts through producers and consumers. Science 360: 987–992. Princen, S. (2010). Venue shifts and policy change in EU fisheries policy. Marine Policy 34 (1): 36–41.

Radford, Z., Hyder, K., Zarauz, L. et al. (2018). The impact of marine recreational fishing on key fish stocks in European waters. PLoS One 13 (9): e0201666. https://doi.org/10.1371/journal.pone .0201666. Stiasny, M.H., Mittermayer, F.H. et al. (2016). Ocean acidification effects on Atlantic cod larval survival and recruitment to the fished population. PLoS One 11 (8): e0155448. Suski, C., Svec, J., Ludden, J. et al. (2003). The effect of catch-and-release angling on the parental care behavior of male smallmouth bass. Transactions of the American Fisheries Society 132: 210–218.

CHAPTER 14

Some ideas for the next CFP reform

A vision of the future CFP In Chapter 1 we discussed the case for policy reform and adjustment. It is important that any idea of future policy evolution will be inspired by a long-term vision. This was the case in the 2013 reform, that started by the Green Book on policy reform published in 2009 (EU 2009a). For the first time in the Common Fisheries Policy (CFP), the analysis of the (then) current policy was carried out based on a future vision of how the policy should look like in the future. The question is: is the Commission’s vision of the future of the CFP still valid today? Or does it need to be updated?

• The CFP is cheaper and simpler to manage. • Fishing operators are given incentives to behave responsibly and fully participate in the decision-making process. • The EU contributes to improved fisheries governance around the world. In fact, this vision is still perfectly valid today. The question is then twofold: (i) is the CFP reform in 2013 contributing to achieve that vision? And (ii) are there new important challenges that the policy must address for the future? The best basis for a possible future reform of the CFP would be a revised vision of the European fishing sector toward 2030.

The 2009 vision: is it still valid today? That vision in 2009 depicted a CFP in 2020 that should ideally be characterized by: • Fishery resources recovered from overfishing with more and larger fish at sea. • Fishermen earn more and become financially self-sufficient, attracting young people in coastal regions to the activity again. • The fishing activity is conducted with environmentally-friendly gear and practices. • Small-scale fishing produces high-quality local produce that benefits from a favorable image by the consumers. • The aquaculture sector supplies a growing percentage of Europe’s seafood consumption. • The fishing activity is fully integrated with other economic sectors in Europe’s coastal zones.

New elements of a vision of the future CFP By and large, the vision of 2009 is still valid for the future. However, it needs to be updated, notably in the light of the relative failures to implement such vision under the 2013 reform, but also to adapt the policy to new challenges that in 2009 were not as evident as they are today. A vision of the CFP in 2030 should include at least some more elements: • The Mediterranean fisheries are fully integrated into the policy, with bespoke management methods adapted to its particular features, realistic objectives being achieved and coastal communities, largely based on small-scale fishing, thriving based on highquality fish for local markets.

Quo Vadis Common Fisheries Policy?, First Edition. Ernesto Penas Lado. © 2020 John Wiley & Sons Ltd. Published 2020 by John Wiley & Sons Ltd.

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• The policy has been considerably simplified, and the new stakeholder bodies take the initiative to design policy instruments that are best adapted to deliver the objectives established by the CFP legislation. • The policy is adaptive, it allows for testing new approaches and incorporates quickly new ideas and improvements resulting from experience. • The policy is well-adapted to the gradual effects of global warming: it monitors existing changes and is adaptive to mitigate their negative effects. • European fisheries and aquaculture increase their sustainable production of seafood, through exploitation of capture fisheries at maximum sustainable yield (MSY) levels, and an effective system to ensure that all available quotas can be effectively caught, as well as through further development of aquaculture. • European fisheries have a low level of discarding and waste, and many species formerly discarded are used for various commercial purposes. • Although the total number of fishermen has continued to shrink, those remaining are well-paid and enjoy good working conditions; the job of fisherman in Europe is again attractive for young Europeans. • Coastal communities are thriving through a combination of varied economic activities related to the maritime economy. All members of these communities can benefit from these activities and not just a few. • Fisheries management is well-integrated into a wider policy context including a seamless coordination with environmental objectives and effective mechanisms to decide on priorities among maritime activities. • International governance will be more effective, based on multilateral solutions, with developing States playing an active role in international efforts. These elements of a future vision represent an important update to the 2009 vision. Having such vision is extremely important because long-term objectives can only be defined if we

know what we really want to achieve. The points above are all desirable and achievable objectives. The vision would imply the re-thinking of a number of questions in the policy, from the definition of objectives to the revision of certain pillars of the policy. These are presented below.

New policy objectives In Chapter 2 we touched upon the question of policy objectives. The way these objectives are formulated is extremely important to determine the course of policy implementation, as well as to ensure realistic policy expectations. From the experience of implementation of the policy reformed in 2013 one can identify a number of questions where the policy objectives could be reformulated. • The MSY objective should be modulated to make it clear that it is not a magic single point but an area around which different combinations of policy objectives can be sought. • The policy should dissipate any doubt that the operational parameter is fishing mortality, not biomass. • Future policy objectives should be better aligned with those of Article 39 TFEU, and could set out to gradually develop more multi-species approaches to management and, to start the process, establish that the estimation of parameters such as Fmsy should be done taking into account ecosystem effects, as we saw in Chapter 3. • The policy should focus on the main stocks, not all stocks. This would require a definition on how to determine the stocks that will be directly subject by management, including Fmsy objectives. • The date of delivery of the fishing mortality objectives could be made more flexible to account for certain factors: ✓ The Mediterranean case. Given the situation of the stocks in this area, the policy could establish more modulated times for the delivery of policy objectives, due to the

Some ideas for the next CFP reform much larger distance between current F levels and Fmsy target levels; ✓ The particular difficulties of mixed fisheries. • The policy should open the door to the possibility that management will focus more on groups of stocks and not only on individual stocks. • The objectives for the reduction of discards could be reformulated to ensure that different situations can be treated differently, while establishing in all cases the guidance to reduce discards as much as practicable. • The policy could establish among its objectives the maximization of the – sustainable – production of seafood. • The objective of adapting the policy to the effects of global warming should also be clearly specified. • The new set of objectives could also include the improvement of the economic efficiency of the management system (to improve the economic output from the available resources) and the improvement in employment quality in the industry. • That objective could also include the contribution of the CFP to achieve the EU internal market. Beyond the objectives, the future policy should also establish adapted tools, such as: • An enlargement of the scope of regionalization to include more policy pillars (including for example control), so as to allow for “package approaches” by sea basin. • Further clarification of the principles applicable to the co-decision acts, where these would concentrate more on principles and objectives and less on micro-management of technical questions. • Inclusion of the consideration of guidelines as an instrument to help implement the objectives, including possible delegation to industry organizations. These elements are not necessarily all entirely new, but they could be worked out in a way that will be clearly identified as priorities for the future evolution of the policy.

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An improved governance system To be flexible and adaptive, the CFP must revise its governance system. The CFP will continue to be governed under the terms of Articles 43§2 and 43§3 TFEU, but this actually allows for a considerable improvement in practice.

A more flexible, adaptive CFP We have advocated that the CFP needs to be, even beyond regionalization, more flexible and adaptive. Can this be done under the reformed policy of 2013? In Chapter 9 we referred to the idea of developing guidelines instead of legislation to provide such flexibility. Can that be done in the future CFP? Can a legislative approach be flexible and adaptive? There is room for the development of a more flexible and adaptive approach to the CFP. Ultimately, the amount of flexibility is inversely proportional to the level of detail of the legislation. The fewer the rules the more room for implementation by non-legislative instruments. And with certain exceptions, nothing in regulation 1380/2013 obliges the co-legislators or the Member States under regionalization, to produce very detailed legislation. The real difficulty for a more adaptive CFP it is the long-standing tradition of micro-management by the administrations and the tendency to ensure a level playing field that always pushes governance toward the definition of very detailed rules and harmonized legislation. This is not disappearing through regionalization. Actually, this process seems to be simply producing the same phenomenon albeit at a regional scale. As we indicated in Chapter 9 and will see below, the real difficulty is not the legal basis, but the need to create trust among the policy actors, a trust that can allow the industry to devise flexible solutions through approaches that can be modified more quickly and flexibly as they are implemented, a trust that will reassure Member States that different solutions don’t mean less demand on producing results, so that nobody is seen as “getting off the hook”

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on fundamental obligations, a trust that the Commission will respect these solutions. A possibility to explore is that of the industry-led initiatives that are endorsed by the EU, so as to provide industry organizations the capacity to manage and enforce the rules, based on the results-based principle. How to build trust? This is perhaps the most difficult question of all. By definition, trust cannot be legislated. It is an intangible value that often results from long historical traditions that simply cannot be reproduced in areas without such tradition. This author has already written about the differences in the level of trust between, for example, two areas like the Baltic Sea and the EU’s western waters: while in the Baltic there are no “fishermen from abroad” (only Baltic coastal states fish there) and have a long tradition of joint management through the old IBSFC; in western waters the presence of Spanish or French fishermen in British or Irish waters is still resented in the British Isles and this is a considerable obstacle to build trust. However, this is not an impossible task. In Chapter 9 we already identified a certain number of specific actions that can favor the development of trust. And experience shows that a number of factors may contribute to increase such trust, beyond the specific action by the institutions: Investment abroad is probably a key factor. As fishing interests become more entangled through foreign investments, the national factors that are at the origin of much of the CFP’s mistrust may tend to diminish over time. As an example, no matter how adverse the British public may be of Spanish or Dutch investment in the UK fishing sector, this author has witnessed how a Spanish operator owning a UK-flagged vessel has seen his interests defended by a well-known UK industry representative. The increase in cross-investment in the EU fishing industry can be a significant contributor to build trust. All these questions, of course are not easy, or doable in the short term. But they deserve attention because the US experience shows that

it is this trust among operators and between them and the authorities that allows them to have a successful policy.

A new legislative culture: concentrating on political objectives, not on micro-management Co-decision can allow a new legislative approach: more concentrated on deciding policy objectives (deciding the “what”) but leaving much more flexibility on the means to achieve such objectives (not deciding the “how”). This would imply leaving much more freedom for regional decision-making with a muchenhanced role for the Advisory Councils (ACs), and also more fast-track procedures to adapt legislation through Commission acts. This would have several advantages: • It would allow for greater involvement of the Advisory Councils, thus increasing their “buy-in” to the policy. • The policy would be much more quickly adaptable to changing circumstances, or to learning from experience. It would also be more open to experimental approaches. • It would help make the co-decision process more efficient: by legislating in less detail, co-legislators could increase the number of important regulations they could deal with. This would also allow the whole system to be more responsive to new challenges. There would be difficulties too: for example, greater emphasis on monitoring results or, arguably, increased risk of objectives not being achieved. This should of course be considered against the advantages: a compromise between these and the possible risks would need to be struck. The main difficulty of this approach may be the resistance to change by certain administrations, and possibly also from certain industry segments that may be more at ease with the traditional paternalistic management. This implies that this kind of approach could be introduced gradually, in those cases where the administrations and the stakeholders concerned would be willing to accept the challenge.

Some ideas for the next CFP reform

A new decision support framework The introduction of multispecies fisheries considerations, trophic relationships, choke species effects and so on will have a very clear effect on governance: increased complexity. Today, it is already difficult to discuss the biological, economic, and political implications of setting a single-stock total allowable catch (TAC) at levels corresponding to two different values of fishing mortality. It will then be much more difficult to fathom how to come to terms with a matrix of different possibilities with different trade-offs. This calls for the development of tools that will translate these trade-offs and their biological and economic implications in a user-friendly manner. These decision support tools will have to be used within the institutional framework, which will not change under CFP reform. The EU research program MareFrame1 is developing very interesting tools to allow for a better implementation of the ecosystem approach in the CFP. What is of particular interest of this program is that it provides for instruments for what will be a more complex decision-making framework, that will need to evaluate the trade-offs of different policy options. The program develops four main areas, which we can consider as the essential elements of support to decision-making in the emerging scenario of more ecosystem based (particularly more multi-specific) management: (a) The co-creation process, whereby stakeholders participate from the beginning in the conception of the management instruments. (b) The further development of ecosystem models, to respond to the increasing need to include multi-species and other ecosystembased elements in management. (c) Decision-support tools, to facilitate the evaluation of options, and their consequences, of an increasingly complex decision framework.

1 https://cordis.europa.eu/result/rcn/231290_en .html/

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(d) Educational resources, to ensure a high level of scientific and management literacy among all players involved. The future CFP simply cannot continue to be run based exclusively on an extremely heavy and slow procedure where everything, from fundamental to technical or secondary is decided by co-decision. And, since future policy will inevitably introduce additional elements of complexity, it is necessary that the governance of the CFP will have these instruments to facilitate decision-making.

The future of regionalization I have advocated in these pages the extension of the scope of regionalization as one of the ideas for the future. Article 18 of Regulation 1380/2013 does not necessarily limit the scope, since it states that this process will apply “where the Commission has been granted powers” but then it clarifies that this includes multiannual plans, discard plans and regulations to implement environmental legislation. Article 18§7 allows Member States to present joint recommendations, but does not clarify what follow-up should be considered. Overall, Article 18, even if formally does not limit regionalization to the above questions, it does however put emphasis on them, and makes it a political question for co-legislators to decide if in a different context they may decide to grant powers to the Commission. And in any case, Article 18 is within Part III of the regulation, on conservation measures, which seems to imply that regionalization does not apply to other policy pillars of the CFP. This represents an important limitation, because a new governance requires the preparation of package approaches, that could put together different policy strands in coherent, mutually supportive policy elements. The future legal basis could foresee the possibility of these package approaches implying regionalized decision-making involving different policy choices.

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As an example, the recent proposal for a management plan for demersal stocks for the Mediterranean (EU 2018a) foresees an effort management system for trawlers. To be completed, this plan would ideally include, for example: • A special control regime to cater for the need to focus control on the effort levels. • A special system of incentives to promote better gear selectivity that may need to derogate from some current technical measures. • A specific scrapping program to remove excess capacity and allow the remaining vessels to be able to operate under profitable conditions within a framework of reduced overall effort levels. These ideas are not possible today under regionalization. To introduce such elements, the proposal would have needed to propose amendments to three important regulations, and this completely discourages such initiatives. A new paradigm of governance would imply the possibility of allowing regionalization to foresee bespoke packages of measures that would achieve the general goals of the policy but would be tailor-made for the specific features of the fisheries concerned.

The notion of co-creation and the “irrational” part of decision-making Those associated with decision-making processes know all too well how decision-making is, very often, subject to political considerations that may not correspond to rational criteria, be it scientific advice or long-term versus short-term economic interest. These decisions are often considered “irrational” since they do not seem to correspond to well-supported “objective” criteria. Actually, these “irrational” parts of the decision-making probably only show the level of ignorance of decision-makers as regards the interests of the social groups concerned, for whom the alleged irrationality simply corresponds to their societal and cultural values and expectations. The notion of rational is by definition arguable, since it may reflect a very wide variety of considerations that are

not even just economic (profit levels) or social (employment levels) but very often impinge upon other values such as, for example, pride, the preservation of tradition, and so on. These considerations lead to decision-making being often based on what is socially acceptable, whatever the values behind such acceptability. Including these considerations in decisionmaking, as part of the objective criteria, is extremely difficult, if not impossible. For this reason, the idea has been developed in a number of cases of including such considerations from the very beginning of the decision-making process, through the so-called co-creation, that is, the participation of stakeholders from the initial stages of policy design.

Creating breathing space for the ACs The above ideas imply very pro-active Advisory Councils. This, in turn, requires the ACs to be ready for such an enhanced role, but it also requires that the other actors involved in decision-making leave the ACs sufficient breathing space for them to have a substantial role to play. If co-legislators, the Commission and national administrations continue to decide on everything, including details, there will be no space for the ACs to do a meaningful job. Asking the ACs to do more implies the other actors of the policy to do less: • Co-legislators should legislate with less detail. This is essential. If the tradition of prescriptive legislation continues by the co-legislators (with an important influence by the Commission) then there will be no breathing space for ACs. One cannot motivate ACs to invest in developing policy if their role is restricted to very narrow, or very secondary policy elements. In particular, it will continue to be for co-legislators to decide the “what,” but the ACs should have more of a say in the “how” and this can only be done if co-legislators don’t try to do both. • National administrations should not try to dominate the decision-making process under regionalization as a purely political process. If this is the case, the process will fail to

Some ideas for the next CFP reform get decision-making closer to the fishing grounds as it was intended in 2013. • The Commission and the ACs should ensure a positive dialogue where sufficient flexibility and trust should be provided to ensure that the ACs see that it is worth investing in their recommendations. This is not necessarily a question for legislation, at least not the only factor. Rather, this would correspond to a change of culture, where the legislators would set principles, but not technical details. In addition, more breathing space would also be created for the ACs by admitting regionalized decision-making for a wider range of policy instruments. As I have argued, the scope of regionalization in the 2013 reform was rather narrow. Once regionalization reaches cruise speed, the question must be asked whether this procedure shouldn’t be allowed for a wider range of policy pillars, so as to give the ACs the possibility of developing “package approaches” on policy that would fit their particular circumstances.

A new structure for an enhanced role for the Advisory Councils Under the new governance scenario, the structure and function of the ACs should be enhanced. Some ideas are worth exploring: • Getting data collection and scientific advice closer to the ACs, following the US system. • Organizing training sessions for AC members, so they can become more familiar with the basic concepts of fisheries science. • Allowing for certain decisions to be implemented through industry private agreements, outside legislation, but with an obligation to achieve results. • Providing for special aid to currently underrepresented interests, such as small-scale sectors, so as to ensure an inclusive level of decision-making within the ACs. As mentioned in Chapter 9, it would be important to analyze how the industry can take up the challenge of a more bottom–up policy where their participation in the ACs would be more proactive. This would be very demanding

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in terms of resources, and in this context the possibility of revamping the mandate and the funding of producer Organizations, to play a crucial role in governance, over and beyond their original mandate focused on markets, could be an idea to explore.

A more executive role for the Advisory Councils? In the context of a more collaborative CFP, with an increasing weight of bottom–up initiatives under less prescriptive legislation, the idea of the industry making private arrangements beyond legislation must also be posed. Indeed, some US Regional Councils have demonstrated that the industry can accomplish certain objectives through private deals outside the control of the federal government. Can this be done in the CFP? In a policy with a tradition of top–down prescriptive rules, this possibility seems rather unlikely ever to materialize. However, certain precedents may actually point to the contrary. For example, the Southwestern Regional Advisory Council struck a deal on the management of anchovy in the Bay of Biscay through agreement between the industries of the two Member States concerned. In more recent times, the industry-led management plans agreed and proposed by the pelagic industry, even if devoid of legal value, are important attempts to establish management frameworks that decision-makers can at least consider as important guidance on what industry can do. In previous chapters we have seen the need to develop strategic partnerships between the fishing industry and the environmental NGOs. These partnerships could well be developed in the framework of the ACs, thus giving these bodies a much more proactive role, including the possibility of using private deals, which could subsequently be endorsed by EU or national law. This development can be facilitated by new technologies. A very good example is the approach proposed by Kraak et al. (2012) whereby a detailed spatial management of the

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fishing activity can be used to refine management and promote responsibility by the industry, through a system of “fishing impact credits.” Current technologies already allow fine tracking of individual vessel behavior, thus opening the door to that kind of approach. That is just an example, but current technologies, starting with the electronic logbook, cameras on board, submarine cameras to monitor the catch composition of trawls before they happen, and so on, change the traditional wisdom that fishermen don’t know what will fall in their nets, or that they cannot all be tracked individually. These new technologies have the potential to allow for new policy approaches which are more reliant on individual fishermen’s behavior. As we have seen in Chapter 7, these are much more efficient than general, static rules to obtain results, if and when the adequate incentives are provided. Who would be the arbiter? In order to develop the idea for ACs to be more influential, there would need to be more issues regionalized and more flexibility of objectives (and possibly some guidelines). However, this requires an arbiter. In the USA, this is the National Marine Fisheries Service (NMFS), widely recognized (even despite frequent litigation) as an efficient arbiter because it is an agency (not a political body) and has full technical credibility. Who would be the arbiter in the EU? Could the Commission do it? This would be ideal, but it is difficult in practice for a number of reasons: • The Commission is seen as a political body, not a government agency made up of neutral professionals. While the services of the institution do enjoy a reputation of competence and neutrality, the Fisheries Commissioner is, on the contrary, seen as a politician. • As for the technical ability, the NMFS has a human resource base, made up of prestigious scientists and other officials that offer more than sufficient guarantee of technical ability. The Commission services, on the contrary, tend to be increasingly made of overstretched non-specialized officials

What would then be the alternative? The idea of a specialized EU Agency has been floated by some. Although a new agency seems out of the question, the possibility of using the European Fisheries Control Agency (EFCA) (whose reputation for technical competence and neutrality is solid) with an extended mandate (and additional resources) could eventually be discussed.

Relative stability: why it should evolve In Chapter 6 we saw a number of possible adjustments to the fringes of relative stability to facilitate the implementation of the landing obligation as of 2019. But in the long term, the policy, for a number of reasons, requires that the possibility of seriously revamping relative stability be considered as a possible element for the next round of policy reform.

Why question the CFP’s cornerstone? Relative stability is here to stay. Not only does it enjoy ample political support from most actors in the policy (as every CFP reform demonstrates) but it has proven over the years to be a pre-condition for the establishment of a meaningful fishery management policy: in other parts of this book I have indicated that in the absence of a system of sharing out fishing rights, no effective management system can be adopted. However, the idea that a stable system of sharing of fishing rights necessarily means allocations fixed forever is not warranted. Over and beyond the cases where the allocation is left to market mechanisms (individual transferable quotas [ITQs]), there are examples where allocations are decided at governmental level, but the specific percentages assigned to specific management areas and quota holders is variable according to the distribution of biomass, which is regularly monitored through surveys. The case of the International Pacific Halibut Commission, between the US and Canada is perhaps the best example. In the CFP, the experience showed that the establishment of the policy required six years of

Some ideas for the next CFP reform difficult negotiation to agree on the initial allocation of resources. Only when this was adopted was it possible to put into place a conservation policy. This fact is always important to bear in mind. The question is, however: if relative stability is here to stay, does it have to stay without any change or should it evolve to adapt to the evolution of the policy? Questioning relative stability is not a choice, it is a necessity, because of choke species (see Chapter 6), climate change (see Chapter 12), low quota consumption/inefficiency to produce food (see Chapter 2) and ultimately, Brexit. Under these circumstances, maintaining an allocation system fixed in time and space more than 30 years ago is simply not possible. While the principle can be maintained, the specific allocation keys and the areas to which they apply will inevitably have to be adapted if the CFP is to stand a chance of delivering its objectives. Adapting relative stability: legally easy, politically difficult Curiously, what the most deeply-rooted principle of the CFP is, in strict legal terms, extremely easy to modify: it is a prerogative of the Council of Ministers, under Article 32§3 TFEU and can be modified at will by Council by qualified majority. However, even if legally easy, a substantial revamping of relative stability is so delicate politically that it is hard to see how it could take place outside the framework of an important policy reform, including other substantial elements in the package.

Are individual annual quotas under relative stability biologically and economically rational? The concept of relative stability has been criticized directly or indirectly from a number of angles, as an inefficient system to ensure good decision-making. For example, Carpenter et al. (2016) and Khalilian et al. (2010) have criticized the decision-making on TACs, showing how the system substantially produces higher TACs than would be biologically and economically rational. The fixed allocation of

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fishing rights among Member States makes ministers focus on “their” national quota, not on the TAC level, and as a result TAC levels have been frequently raised over sustainable levels to accommodate one minister, while the rest did not ask for such an increase. As an example, a former British fisheries minister declared, following a TAC decision in excess of scientific advice that “the arguments about TACs are not about conservation, unless of course you are arguing about another country” (cited in Carpenter et al. 2016). Beyond the cynicism or sense of humor of the statement, that phrase encapsulates the problem of relative stability: it places the emphasis on securing a national quota entitlement the following year, frequently to the detriment of the biological and even economic rationality of the whole system. And then one can always be very conservationist with somebody else’s TACs. On the contrary, fisheries economists have evaluated the gains associated with a liberalization of fishing quotas within the EU, and have clearly concluded that they would provide economic gains for all (Andersen et al. 2009). In addition, scientists have long emphasized that the success of the management system of the CFP is severely constrained by the strong and systemic focus on maintaining relative stability among Member States (Schwach et al. 2007), which stifles innovation and prevents more economically rational approaches. From a biological point of view, relative stability is also far from satisfactory. Reiss et al. (2010) indicate that a policy based on TACs for the main target species is unlikely to mitigate the impacts of fishing on non-target species. It can be added that the tendency of relative stability to raise TAC levels far beyond scientific advice only aggravates this effect. Overall, relative stability has been remarkably stable over the years, but this is due much more to the inertia of the system, and the lack of appetite to embark on a difficult and complex exercise of revision, than on the basis of its objective biological and economic rationality. However, these considerations will not necessarily apply forever. There are several reasons

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why some current allocation keys may have to be adapted in certain cases: • They were established in many cases a long time ago, and since then the stocks and their abundance have moved geographically. This is clearly aggravated by climate change. • The economic interests of the fishing exploiting the stocks concerned has also changed, with many stocks of importance not having relative stability while other, secondary ones still being subject to it. • The introduction of the new CFP objectives has raised the problem of “choke species” (see Chapter 6) that risks derailing the smooth implementation of the new CFP. • Relative stability resolves – partially – its rigidity by a “market” mechanism: quota swaps. But this mechanism is proving very inefficient to meet the challenges of the new CFP. In fact, the relative stability established in the CFP of 1983 was a principle, with the intention of being adapted as necessary. Article 4 of Regulation 170/83 (EU 1983) reads: 1 The volume of the catches available to the Community referred to in Article 3 shall be distributed between the Member States in a manner which assures each Member State relative stability of fishing activities for each of the stocks considered. 2 On the basis of the contents of the report referred to in Article 8, the Council, acting in accordance with the procedure laid down in Article 43 of the Treaty, shall enact provisions effecting the adjustments that it may prove necessary to make to the distribution of the resources among Member States in consequence of the application of paragraph 1. (emphasis added)

In practice several allocation keys have been modified or created over the years (Penas Lado 2016). This means that it is conceivable that, while the principle of relative stability will be preserved, some of its specific management units and/or allocation keys could be modified. This need has in fact been recognized by a certain number of interests in the industry, notably in relation with choke species.

There can be different ways to introduce the necessary adaptations to allocation keys so that it can face today’s challenges and still be an extremely useful instrument. There could be in fact a number of possibilities, as below.

An enhanced market of fishing rights among Member States The current system of voluntary quota swaps is insufficient to re-balance the rigidities of relative stability. Since the implementation of the landing obligation, the number of swaps is actually being reduced, not increased (see Chapter 6). The reason seems to be that in the new context, Member States become more prudent before agreeing to a swap, since they do not know if, at the end of the year, some of the stock they are ready to swap may actually become “choke” at a later stage. In other cases, Member States seem to shy away from swapping to reduce total catches and keep prices high. Given the voluntary nature of this system, it is difficult to see how it could be enhanced. In addition, the lack of transparency of the system of quota swaps casts serious doubts about its fairness. For example, given the practice of intra-company swaps (swaps promoted by companies owning vessels in more than one Member State) some operators complain that such intra-company exchanges do not fairly allow them to participate in swaps negotiated by their national administrations (Hoefnagel et al. 2015). In addition, the annual nature of the quota entitlements and the lack of guarantee of obtaining supplementary quotas from the market seriously limit the fishermen’s ability to plan their economic activity in the long-term, and tends to result in year-by-year economic planning (Andersen et al. 2009). One possibility, suggested by industry representatives, would be to ensure full public transparency of the levels of quota consumption by Member States. The industry frequently complains that they don’t always know who has quotas left of their choke species. By making the quota management database fully available to the public, the industry could check out where available opportunities lie, and may indicate to

Some ideas for the next CFP reform their national authorities the interest in agreeing on certain swaps with other Member States. There may be reticence to do this, particularly from the Member States that under-exploit their quotas, as such transparency would clearly expose the level of inefficiency of the current system. However, the need to ensure the efficiency of the CFP, in terms of implementing the discard ban and also on the wider objective of ensuring a high level of exploitation of its sustainable resources, should be more than enough motivation to overcome this possible reticence.

A European market of fishing rights? The case of milk quotas An extreme proposal would be to create a European-wide market of fishing rights, for example though the establishment of a system of tradable fishing rights. This idea was indeed initially considered by the Commission services in the preparation of its proposals for the 2013 CFP reform. However, the idea found such strong opposition from much of the industry and most Member States that it was discarded as an option at a very early stage. Obviously, the opposition to this idea was based mainly on the evidence that such a market of fishing rights would change relative stability. The example of fish quotas could draw some interesting conclusions from the case of the milk quotas as part of the Common Agricultural Policy (CAP). The milk quotas per Member State were very different from the fish quotas: rather than an instrument to limit catches of an exhaustible resource, milk quotas were set up in 1984 as an instrument to prevent excess production and associated falling milk prices. The comparison should not be made between milk quotas and fish TACs, but rather between the use of Member State-specific limits to milk production and the Member State-specific and fixed catch limitations derived from the overall TACs. Unlike national fish quotas that continue unquestioned, milk quotas were discontinued in 2015, to allow EU producers to increase production, improve competitiveness and conquer emerging foreign markets. One obvious

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result of this is that the production of milk is increasing much more in some Member States than in others and thus the traditional status quo is being broken. Could the fisheries status quo ever be broken? Always bearing in mind the differences between the two instruments, what is interesting about the case is the explanation of the reasons why the EU scrapped milk quotas. In short, milk quotas were suppressed for four main reasons: • Milk quotas raise prices; • They distort the market; • They are costly to administer; and • They are unfair. As indicated above, milk quotas are not the same as fish quotas. However, what is interesting to note is that both quotas are based on the same article of the Treaty (Article 39). Yet, the CFP has never questioned the role of fish quotas under relative stability on their effect on market prices, on whether they distort the markets, on the cost of their administration and on their fairness. Nor has the CFP ever wanted to analyze the competitiveness of its industry that must compete in an increasingly open market. Why? It is also true that the European Court of Justice has, on several occasions, clearly withheld the principle of relative stability, therefore its questioning may have also legal implications. However, in the present context, the emphasis is not so much whether the principle should survive, but rather if the specific quota allocations agreed more than 30 years ago are still the right ones, notably in the context of the new policy after the 2013 reform. Does relative stability raise prices? There are no studies on this question. It is therefore difficult to ascertain if relative stability has any influence on prices. However, the very fact that there are no studies on this question exposes the problem: relative stability is applied because it is always considered a cornerstone of the CFP, regardless of its economic rationality. It is a striking example of a policy that has survived for over 30 years without ever

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being questioned from the point of view of its economic rationality. In any case, anecdotal information confirms that some Member States refuse swaps of unused quotas as a mechanism to keep prices high: if certain unused quotas are transferred to other Member States and caught, they fear prices may be reduced by the increased offer. Does relative stability distort the markets? There is at least one significant element of market distortion in relative stability: the catches of national fleets are not always adjusted to their national markets. In some cases, Member States under-exploit stocks of high value in other European markets, while Member States having those markets have low or no quota of such stocks. There are no specific studies to quantify this. However, abundant anecdotal information and expert advice shows a disconnection between the basket of fishing rights of Member States and the demands from their markets. For example, according to data from the European Market Observatory for Fisheries and Aquaculture (EUMOFA), a stock such as horse mackerel (Trachurus trachurus) is caught by the Dutch fleet and sold largely for export at prices around €1/Kg, while in Portugal the same stock is sold for around €2/Kg in the domestic market. Another case in hand is blue whiting (Micromesistius poutassou) which the Danish fleets catch for fish meal at prices around €0.1–0.2/Kg, while Spanish vessels catch the same stock for human consumption at prices around €2.5/Kg. It can certainly be argued that this is not a problem since the market is the whole of the EU, so Dutch and Danish fleets could sell their fish at much better prices in the Iberian markets, and help supply their markets. However, it is not always easily doable and economically rational to land fish for a variety of different European markets, some of them perhaps quite distant. The effect of this disconnection is that the overall economic rationality and effectiveness of the system is probably lower than it could be: operators may have fishing rights that are not always well-adapted to their usual markets. This is not fully compensated

by the limited and non-transparent market of fishing rights (the quota swap system) and cannot always be compensated by intra-EU trade, often constrained by the cost and conditions of transport and other factors. Are quotas under relative stability costly to manage? The notion of “costly” management is of course relative. If preserving the system of relative stability is a high priority for most Member States, it is probably fair to say that running the system is not expensive. The question, however, is whether there is a simpler system to manage fishing rights. In any case, the management of quotas involves in most cases a high degree of involvement of national administrations, including notably all the control and enforcement system, the sampling and reporting and the IT applications to run the system. Overall, these systems are complex and expensive, and even relatively well-off Member States frequently complain about difficulties in running the system effectively and on time, based on the heavy administrative burden it represents. The example of other countries (New Zealand, certain fisheries in Canada and the US, etc.), where the quotas are managed largely through market mechanisms and with a financial and operational contribution from the industry itself are the best examples of how these expenses can be reduced to a minimum. This means that the heavy administrative burden of running a government-led quota management system is not an inevitable consequence of fisheries management, it is the result of a political choice not to let the market play its part in such management. Are quotas unfair? This is by far the most difficult question to answer. It is for sure, however, that if that question is asked to different operators, most of them would reply yes, albeit for opposite reasons: it is unfair to many of them, but for different reasons for different people. A non-written principle of EU policy is that a good policy is the one

Some ideas for the next CFP reform that leaves everybody “moderately unhappy,” that is, that the policy is a good compromise without winners and losers. Is this the case with relative stability? Traditionally, it has strong defenders who consider that allocation keys should not be touched at all. They are fully satisfied with existing keys. Others, however, are very unhappy, although for the opposite reasons: • Spain is by far the unhappiest Member State, on grounds that the allocation keys agreed upon accession did not reflect at all Spain’s track record in the fishery and current economic interest and dependence from the fisheries concerned. • Ireland is another traditionally unhappy Member State, for the opposite reason: Irish waters include a high percentage of EU fishery resources, but Irish quotas are lower than such a percentage. Both arguments cancel each other in any discussion on relative stability, but the above examples illustrate that, at this point in time, the allocation keys agreed more than 30 years ago are not necessarily something that leaves everyone “moderately unhappy.” But this traditional situation is now changing fast, due to the implementation of the landing obligation in the CFP. Here, even Member States that always defended the continuity of relative stability, are now questioning certain aspects of it, namely, those leading to the choke species problem. For all the Member States or fleet segment affected by this problem, it is difficult to see the current allocation keys as fair. The above (very superficial) analysis shows that there may also be reasons to question relative stability, or at least some of the allocation keys under it, and to suggest its revision.

Evolution through adjustment A full renegotiation of all allocation keys would seem out of the question, as too complex, delicate and, probably, also unnecessary. A softer approach would seem more realistic. In this regard, there can be very different ways in which much-needed flexibility or adjustment can be introduced in relative stability. All

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these ideas are not mutually-excluding, so a combination of some of these ideas, even in different TACs, may be a way forward. As I have repeatedly advocated in these pages, the search for a one-size-fits-all solution can seriously stand in the way of more effective, partial, and fishery-specific solutions in different cases.

Renegotiation of a limited number of allocation keys A limited number of TACs could be subject to a revision, while maintaining existing keys for the rest. The choice of the stocks could be done, for example, based on the following characteristics:

• A well-demonstrated problem of choke species. • A very low level of quota utilization, over time, by one or more of the quota holders. • A consistent history of swaps, showing the permanent need for adjustment of certain national quotas. A precondition for this exercise would to ensure the transparency of the information on quota utilization and exchange, so the adjustment would be designed on systematic and transparent criteria and based on experience. It has been reported (Penas Lado 2016) that at least on two occasions, important relatively stability keys have been re-negotiated: Baltic cod and blue whiting are examples that, when needed, Council can indeed re-negotiate well-established allocation keys. While not minimizing the difficulties, these examples show that, at least for a reduced number of well-identified stocks with important mismatch problems, such re-negotiation is actually possible. Although there is a tendency to avoid re-opening allocation keys, or even to talk about it, under the all-embracing argument that this would amount to “opening Pandora’s box,” the above cases show that this fear is overstated, and often reflects a simple desire not to engage in difficult exercises, a kind of “institutional inertia” to avoid difficult problems even if solutions are badly needed.

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A partial application of rights-based management As we have explained, the idea of an EU-wide market of fishing rights was opposed by a majority of stakeholders at an earlier stage of the preparation of the proposals for the 2013 reform. This opposition is most unlikely to change any time soon. However, for certain segments of the industry (notably the pelagic trawler industry) this idea was worth considering, and even extending it to Norway! This points to the possibility of introducing certain TACs where part of the national quotas (those corresponding to the large-scale industry ready to play into this) could be allocated initially to Member States, but be subsequently subject to quota transfers among the different vessel owners at European level. This could even be considered as an experiment and depending upon results, could perhaps be extended partially to other TACs and fleet segments interested, always on a voluntary basis. All the above considerations are, in any case, unlikely to lead to the dismantling of relative stability and its replacement by a liberalization in the trade of fishing rights among Member States. However, when looking at rights-based management (RBM) one must always bear in mind that their application does not necessarily have to be universal. In fact, only the New Zealand system applies to all fisheries without restrictions. Many examples around the world show how RBM systems can work for part of their fisheries, for very different reasons. This has also been the case (see Chapter 10) with the EU Member States that have implemented these systems: they have introduced them at different times for different fisheries, showing that RBM-managed fisheries can coexist with traditionally-managed ones. All this implies that it is perfectly possible to apply RBM to a certain fleet segment, and/or to part of the fishing possibilities available. This is already applied in some countries. At EU level, the idea could be to reserve part of the TACs, at least for certain species, to management through RBM, leaving the rest of the TAC and/ or the rest of the species to traditional allocation

through fixed national quotas. This could be done as a test for those willing to experiment with the system, without any obligation of it becoming the rule in all areas and all fisheries. The effects of RBM could then be examined on the basis of the results by those willingly accepting the system. A revision of the species under relative stability The species currently subject to relative stability (or not subject to it) is largely the result of the historical evolution of the policy, not necessarily the result of an analysis of what are the key species, the ones that determine the behavior of skippers in the fishing grounds. As a result, today certain very important species in European waters (i.e. sardine, sea bass) are still not included into the TAC and quota system, notably due to the difficulty of agreeing to an allocation key, while other, very secondary species (i.e. pollack, dab, and flounder) have TACs and are subject to the discard ban even though they are very marginal in the fisheries where they are caught. In Chapter 6 we examined the question from the point of view of contributing to reduce choke species effects. But the revision of species under TAC could be done on more general objectives, taking into account the overall value of TAC setting of secondary stocks on the target species and on the general effects on the marine ecosystem. As we saw in that chapter, the scientific basis for this exercise is beginning to be available: a recent International Council for the Exploration of the Sea (ICES) report2 states that TACs of certain secondary stocks could be removed without a significant risk of contributing to overfishing of the target species. Such a revision would not only resolve some of the rigidities of relative stability, but would also re-focus the policy to the most important issues and would increase the cost/efficiency and simplicity of the whole policy. 2 www.ices.dk/sites/pub/Publication%

20Reports/Advice/2018/Special_requests/eu.2018.24 .pdf/

Some ideas for the next CFP reform The establishment of a two-tier quota system The philosophy of this system was that the allocation of fishing rights should be done on the basis of the main species (the first tier), those that determine the basic activity of fishermen. On the contrary, the allocation of secondary species (the second tier) should not necessarily follow the same allocation, but rather a complementary one where catch allowances for such species are calculated based on the –inevitable – by-catches of these secondary species when fishing for the target ones, and all based on the best scientific advice on by-catch levels. This is of course easier said than done, mainly because among different fleets and Member States there is a different notion of what is a first-tier or a second-tier species. But defining these species as first or second-tier is something that can be agreed for different areas, for example by asking the Advisory Councils do so. In the US, certain fisheries allocate the main target species and then, following recommendations from the industry itself, certain by-catch quotas are established to avoid choke species effects. The experience in some of these cases is that the industry is often more efficient to take this kind of decisions than public authorities. The establishment of limited by-catch quotas The idea of establishing certain – limited – bycatch quotas is not new, and has been used in many management systems around the world. Meaningfully, there are also some precedents in the CFP. That is their biggest advantage: they are a well-known feature of the CFP already, so their introduction in certain stocks would not be a revolution, but just an extension to new stocks of an approach already applied under the CFP. Examples of existing by-catch quotas are: • Tusk in ICES areas I, II, and XIV • Tusk in ICES area IV • Tusk in ICES areas V, VI, and VII • Blue ling in ICES areas Vb, VI, and VII • Blue ling in ICES area XII • Blue ling in ICES areas II and IV

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• Ling in ICES areas I and II • Bluefin tuna in the East Atlantic and Mediterranean • Swordfish in the North Atlantic • Black scabbardfish in ICES areas V, VI, VII, and XII • Roundnose grenadier in ICES areas Vb, VI, and VII • Red seabream in ICES areas VI, VII, and VIII. The system of by-catch quotas is largely used in the US system to ensure that the quota holders of the main target species are not held back because of their absence of quota of certain secondary ones that are impossible to avoid. It is relevant, in this context, that these by-catch quotas are established according to recommendations from regional Advisory Councils based on information of real levels of – inevitable – by-catches. It is important to emphasize that by-catch quotas can provide a level of flexibility that can successfully reduce discards, protect fish stocks and enhance profits of the fleets in the long term (Simons et al. 2015). This means that such a solution is not a “desperate” one to resolve choke species effects. Handling over-quota catches Another solution can be to allow certain levels of catches of fish beyond quota, but to subject them to a different market regime that would discourage economically such practice. In that sense, while inevitable by-catches of over-quota fish could still be landed (avoiding the species concerned to become choke) the market value of such fish would be lower, thus discouraging such a practice to the extent possible. Two examples can be mentioned in this context: New Zealand’s “catch balance regime” and Iceland’s system of retaining 50% of the value of the over-quota fish. The catch balance regime was introduced in New Zealand in 2001 to cater for situations where vessels would catch in excess of their individual quota. Rather than using penalties, the system uses economic incentives: if fishermen do not manage to buy quota to cover all their catches, they can still land and sell their

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excess catches, but they have to pay a high “deemed value” of such catch, which is set at a high value to encourage fishermen to obtain all the necessary quotas in advance. Such a system requires the existence of a market for quotas, something that does not exist at EU level and at national level only in a few Member States. Beyond the obvious interest of such a system at the level of Member States, the use of the economic incentives at EU level could also be explored, for example by admitting excess catches but against a high sale price that could be used to fund fisheries control and research. In Iceland, for example, a system operates by allowing the landing of over-quota fish but discounting 50% of the sale value of such fish that is subsequently dedicated to research. The above systems, with perhaps certain adaptations, could be at least tested in the EU. In Chapter 9 we referred to the need to include the possibility of testing new approaches. This possibility could be used to run tests in reduced fleets to see what effects they would produce.

A revamping of relative stability: from single-stock shares to combined shares All the above options are based on the same model: preserving the notion of relative stability based on single-stock TACs and their respective allocation keys. But a different, more radical approach is possible: turning the principle from a system of fishing rights on individual stocks to one based on the overall production and economic benefit obtained from all the fisheries as a whole. This would be surprisingly easy to do in a few steps, as follows: 1 Summing up all national quotas for all stocks combined. 2 Doing that sum for a number of years (say, the last 10 years) to average out changes in TAC levels affecting different Member States differently. The average total quota for the last 10 years would represent the total amount of fish that every Member State obtains under the current allocation keys.

3 That sum, however, would represent tonnes of fish, not value. And a tonne of sole is worth much more than a tonne of sandeel. To compensate for that, the same calculation as above would be done by multiplying the average number of tonnes per stock by their cod equivalent, which is a well-accepted proxy to market value. 4 This would provide a total average quota entitlement for every Member State expressed in cod equivalents, as the best proxy of the entitlement of every Member State to benefit from Europe’s fishery resources. This would be the new expression of the existing relative stability. 5 The above entitlements being fixed by Member States, then the individual quota entitlements by stock per Member State would be compared with every Member State catch composition in the fishing grounds. From that comparison, transfers would be done to match, as much as possible, national quota entitlements with the real catch composition by Member State, and all respecting the overall cod equivalent quota by Member State. This method would allow something extremely important: it would maintain the essence of relative stability (every Member State would keep its proportional share of the fisheries’ bonus) but the specific allocation by stock would be much more adapted to the real world. The advantages of this approach would be clear: • This new system would practically eliminate the choke species generated by today’s allocation keys, thus facilitating the practical implementation of the landing obligation. • This would allow a much more efficient rate of quota consumption, thus increasing the sustainable production of seafood. • This would also reduce considerably the need for quota swaps. • The system would also likely increase the profitability of the industry by matching fishing rights with the species found in the fishing grounds. This idea could be implemented if there are two main conditions: political will to re-open

Some ideas for the next CFP reform a politically difficult issue, and a very good communication and education strategy, to overcome the likely resistance that may occur by all those who consider relative stability a sacred cow that cannot even be discussed. However, the price of not doing this exercise would be higher: unless it evolves, relative stability will become farther and farther away from the reality of the fishing grounds and this will make it increasingly at odds with the effective implementation of the policy and with the industry’s economic performance. In other words, it will lose the very reason why it was established in the first place.

The Mediterranean: a new management paradigm In Chapters 1 and 5 we stressed the enormous differences between the Mediterranean and the Atlantic in terms of policy development and results. Attempts to “cut and paste” Atlantic policy to the Mediterranean have failed, and will continue to do so. It is therefore opportune to discuss if, in the context of the next reform, the CFP could change the paradigm in Mediterranean fisheries and adopt a distinct policy, with specific policy objectives and, perhaps, even with specific instruments. This idea runs counter to the EU tradition of ensuring a level playing field through policy harmonization. But given the very different situation and policy results as shown in Chapter 1 it is necessary to be bold and think about an entirely different approach. This approach could include the following components: • A new definition of policy objectives, focused on a high and sustainable yields of mixed fisheries, and much less dependent on specific objectives for individual stocks. In other words, more ecosystem-based policy objectives where the emphasis would be put on the notion of “optimal harvest” of the marine ecosystem, a somewhat equivalent to an “ecosystem MSY”. • The deadline to achieve this objective should also be realistic: the point of departure is

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so distant from any MSY-related objective that it would be necessary to provide for more time to achieve the objective, so that the necessary reduction in fishing activity would be possible to achieve by the industry. The need to advance at multilateral level within General Fisheries Commission for the Mediterranean (GFCM) also calls for a more gradual approach. • Effort management combined with time/area closures would seem to be the preferred instrument, but TACs might also be applied to certain fisheries, such as for example those on small pelagic fish. • Specific instruments in the structural policy, to address the exceptional circumstances existing in this sea basin, and this could include specific scrapping programs. • A very flexible system to take into account the need to learn from experience and adapt the approach as necessary. • Specific provisions to adapt the management to the effects of climate change and the associated invasive species. • A special effort to facilitate the adoption of a full and systematic system of management of the main fisheries at the level of GFCM. In sum, the Mediterranean needs a special effort to bring stock recovery and thus should as much as possible reflect the specific characteristics of this sea basin. Otherwise, the current approach based on a theoretical level playing field with the Atlantic becomes only an alibi for failing to make any effective progress.

Should the CFP manage recreational fishing? This question has always been politically charged. In a policy characterized by a high degree of detail as corresponding to exclusive EU competence, certain attempts to interfere with the national (even regional) management of this activity has been resented and opposed as an undue interference by the EU on issues that are best managed at national or local level. However, in certain specific cases, there is an obvious need to include considerations about

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this activity to ensure that the EU fish management policy can achieve its objectives: when and where the contribution of recreational fisheries to the overall fishing mortality of a stock is very significant, it seems necessary that the EU system should at least take this activity into account. The recreational fisheries interests are increasingly active in vindicating their activity. They are already represented in the Advisory Councils, and regularly advocate their case publicly, underlining its economic importance. In other cases, such as the Mediterranean, the impact of recreational fishing is such that this led the industry to request some management measures: the prohibition by fishermen to use professional gear, as established in Regulation 1967/2006 (EU 2006). The issue of recreational fishing was not touched upon during the negotiation for the 2013 CFP reform, but it was discussed on the occasion of the negotiation of the current regulation on the fisheries control system of the CFP. The solution found was to consider that only in special circumstances will the Council take management measures (EU 2009b): Where a recreational fishery is found to have a significant impact, the Council may decide . . . to submit recreational fisheries . . . to specific management measures such as fishing authorisations and catch declarations.

This provision, however, has never been invoked in practice. Apart from being misplaced (it is not a control provision), this article has implications for which the CFP traditionally has preferred to stay out. Yet, reality shows that recreational fishing can be a very significant component of the fishing mortality of a certain number of stocks in the EU. In such cases, experience shows that the exclusion of recreational activities from the purview of the CFP only complicates management. Short of direct regulation, at least on the most important cases the CFP has to ensure that the effects of recreational fisheries are taken into account in the evaluation of certain stocks and that the corresponding catches be reported and counted against overall catch limits.

The current situation has to be revised, at the very least for those stocks where recreational fishing represents a substantial contribution to fishing mortality. Drawing from the example of the US, recreational fishing should not be taboo in the CFP. It should be openly integrated in management, at least for certain cases. And this may provide certain surprises, in particular that in some cases the recreational catches may not correspond to relative stability. This probably contributes in no small measure to Member States’ reticence to consider this activity. However, the lack of information on these fisheries only hampers good scientific advice and contributes to establish an unrealistic picture of the biological and economic implications of management. The CFP should integrate the effects of recreational fishing in the evaluation and management of those stocks in which recreational catches represent a significant part of total fishing mortality. ICES should bring all the data on recreational catches and integrate such data in the evaluations. TACs should subsequently be established taking these catches into account. Subsequently, each Member State should decide what part of its national quota should be exploited commercially and what part would be set aside for recreational purposes. The recreational fisheries themselves should continue to be subject to national management: “Brussels” should not be establishing the specific rules applicable to these fisheries. This would not apply to all stocks, but only for those where the scientific advice would show a high contribution of recreational fishing to the total fishing mortality. The CFP would establish criteria to determine what “high contribution” means.

What future for the fishery structural funds? The structural funds have been an integral part of the CFP from the beginning. In fact, the first regulation providing for structural measures

Some ideas for the next CFP reform for the fisheries sector dates back to 1970 that is, 13 years before the birth of the CFP itself. Despite the changes over time, the CFP’s structural pillar has been extremely stable in many other respects, such as for example regarding certain measures that have continued for a very long time: • Aid for the modernization of vessels, under evolving conditions. • Aid for temporary cessation of fishing, also under evolving conditions and with an end date in 2017. • Clear support for the development of aquaculture. • Aid to equip vessels with control and surveillance material becoming compulsory under EU law. These measures have continued in a context of insufficient or completely absent evaluation of their effects. In some cases, one can also argue that certain types of aid are not always necessarily consistent with the basic philosophy of the EU structural funds. For example, one can wonder why the EU should pay for the equipment on surveillance and control (video management system [VMS], electronic logbook) that EU legislation requires. The general trend in the structural funds is that they should not be used to allow for the fulfillment of legal obligations under EU law. Yet, this funding creates a certain dependency from the EU funds: Member States can argue that if such funds are not available, it would not be possible to fully comply with EU law! This compares with the situation in other non-EU countries where the costs of management (scientific advice and control) are totally or partially paid for by the industry itself.

An instrument to promote policy change, not to maintain the status quo EU structural funds are there to address Member States’ structural deficiencies, so as to make itself unnecessary when such deficiencies are corrected. In practice however, much of the structural policy has been used to maintain the status quo and even in some cases to prevent change. The policy has perpetuated itself, by taking for granted that a number of measures

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continue to be necessary even in the absence of any objective analysis demonstrating if they actually address market failures. As we saw in Chapter 9 as regards economic advice, there has been little progress in identifying the real market failures in the fisheries policy. There are also important interests, both in the industry and certain national administrations, who consider that the fishing industry is a strategic food-producing sector that, by its own strategic nature, should enjoy public economic support over and beyond market considerations. That philosophy has contributed to create a tradition where structural measures are renewed without analysis of their real effects and needs, but rather as an acquired right. If this philosophy continues to be applied by co-legislators, the risk that the policy will not be used to support policy change, but rather to preserve the status quo will continue to be significant. For that reason, it is important that the future discussions on the Commission proposal for a new fisheries fund (EU 2018b) will address this question as the one that should inspire the final shape of the fund.

What structural funds for the future CFP? The discussion of the future structural funds will, unfortunately, be de-coupled with that of the possible policy reform. Unlike the exceptional circumstances of the current fund, adopted in 2014 right after the 2013 policy reform, in this case the new fund should be ready by 2021, before any decision on possible future CFP reform will be made. This makes it particularly challenging to ensure that the new fund will reflect the possible changes of the policy and ensure it can be a real tool to accompany such changes. The new proposal By the time these pages are written a proposal for a new structural instrument will has been adopted by the European Commission, to cover the period 2021–2027 (EU 2018c). It is, again, premature to anticipate how the proposal will fare in the future trilogue with the co-legislators,

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but at least the proposal contains a number of interesting elements that could address the above shortcomings: • The proposal recognizes that the ex-post evaluation of the European Maritime and Fisheries Fund (EMFF) 2014–2020 recommended improving the link between the funding and policy objectives, a clear recognition of the weakness mentioned above. • It establishes four objectives, including “fostering sustainable fisheries and the conservation of marine biological resources.” This priority includes support for achieving MSY objectives, implementing the landing obligation and, support to science and control and, crucially, inclusion of well-targeted scrapping funds. • The identification of climate change as a fundamental objective of all the structural policy (30% of all funds should be related to that objective). It will however be important to see if the specific nature of the measures finally agreed by the co-legislators will indeed contribute to achieve the ambitious goals established. • A second objective is focused on the EU’s food security including aquaculture and market measures. This is a very important point to address the fundamental strategic question of maximizing the production of seafood (see Chapter 13). These are promising elements. The upcoming negotiation of this fund will be essential to see if the structural pillar of the CFP can, once and for all, become the fundamental financial support that the policy needs to accompany necessary change, both to address policy objectives and to face emerging challenges, and not just to preserve the status quo. The following are some ideas for reflection with a view to the future discussion about the instrument that will replace the current EMFF after 2020. The need for better targeting The budget of the EMFF for the period 2014–2020 is €5 749 331 600 (EU 2014, Article 13). When decided, this amount was considered very satisfactory, even surprisingly

high, given that the discussion on the 2014–2020 financial perspectives was difficult at macroeconomic level, and also the fact that new policies (i.e. climate change) came into play. This success in securing a very substantial package of structural funds for fisheries and maritime policy was due, inter alia, to the presentation of this fund as an instrument to accompany the implementation of a newly modified policy. These favorable circumstances may not necessarily be repeated when it comes to decide on the structural priorities for the period 2021–2027, for at least two reasons: • Brexit may imply a reduction of contribution to the EU budget, as the UK is a net contributor. • There may not be a reform agenda justifying a substantial fisheries fund. • There may be a tendency to simplify the funds and eliminate the smallest of the five ESI funds currently available. If the current EMFF is subsumed into a larger fund, there is a possibility that total funds really available for fisheries may diminish. The above scenarios are all theoretical. By the time these pages are written, it is too early to anticipate what changes will be produced in the structural funds as of 2021. However, the scenario of a reduction in the fisheries funds must at least be considered as a possibility, and scenarios must be prepared on the future shape of such funds if the budgetary reduction ever takes place. One obvious consequence of a reduction of the structural budget would be the need to target better the lower funds available. The current EMFF, despite its consideration of a fund “to accompany the implementation of the new CFP” as adopted the year before, actually enlarged the scope of the measures available more than ever before. In doing so, it clearly lost focus on the main objectives of the CFP. If anything, the future structural policy should try to recover the philosophy of the initial Commission proposal for the EMFF: to focus on fundamental policy objectives to be an effective instrument to accompany their achievement. Some of these possible new challenges are referred to below.

Some ideas for the next CFP reform Adaptations to new challenges: from global warming to Brexit The EMFF was theoretically adapted to the new context of global warming. However, it is not straightforward to see the results of this. We have presented the idea of the need for an ambitious plan to adapt the CFP to the challenge of global warming. This will have to imply a shake-up to some traditional visions of the structural policy that are traditionally based on business as usual. Brexit will be another challenge for the structural funds, and not only because of the likely reduction in funds, but also because of likely changes in areas of fishing and even traditional market circuits. The need to create new market opportunities outside the UK is already a well-identified problem by the Irish industry, for example. This implies that the industry of the EU-27 will have to undergo adaptations to this effect. This, incidentally, may also have other effects: as the effects of Brexit will be very different for different Member States (high for Ireland, Spain, France, and North Sea Member States, low for Mediterranean and Baltic Member States). This may also prompt a re-discussion of the allocation of fisheries fund among EU Member States, with those most affected by the possible loss of UK fishing grounds, and markets claiming a higher share of funds on account of the higher impact of Brexit on their fishing industries. A mechanism driven by market failures The future EMFF could focus more on the market failures of the policy. The CFP, like all EU policies, develops under an open market economy. This is, after all, one of the essential conditions for membership to the EU. The structural policy is not there to replace the markets, but to correct their inefficiencies. This initial philosophy has long been ignored since the different structural instruments of the CFP have indeed applied many instruments that, at least in theory, could and should have been handled by the free and open markets. Then the next question is: what are the market failures of the CFP?

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The answer is not straightforward. One reason for this is that the idea of a market failure is not unequivocal; different Member States and stakeholders have different views about this question, but perhaps more importantly, because the effect of the different structural measures on the CFP have never been really evaluated from that perspective. This is changing, notably since the services of the Commission undertook to revamp the economic advice to the CFP, on the basis of the time series of economic data now available under the data collection policy. One of the uses of these new analyses can be (and should be) to evaluate the effect of different structural measures of the CFP into the general delivery of policy objectives. For example, the need and opportunity of continuing with policies such as the co-financing of vessel modernization, or temporary cessation of fishing, has never been evaluated on the basis of a serious economic analysis. How do these two instruments influence the larger question of fleet overcapacity? Have they delayed the solution to the overcapacity problem? And, especially, have they contributed to achieve any of the objectives of Article 39 TFEU? And the problems they have addressed, are they difficult or impossible to solve through market mechanisms? As these questions are increasingly answered by economic analysis, it should be possible to start looking into the different measures today still available under EMFF to see which ones are really necessary to favor the achievement of the policy objectives of the CFP and that the market forces themselves do not guarantee. Financing the fulfillment of legal obligations? This is a necessary, though politically delicate debate. Theoretically, the structural policy is not meant to subsidize the investments necessary for private operators to fulfill their legal obligations related to EU law. Yet, this is exactly what the CFP has been doing all along, for example in the case of VMS and other control equipment. Should this continue forever? The question is

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related to the opportunity of discussing some form of (at least partial) cost-recovery by the industry. The EU policy in this question is in stark contrast with the tendencies observed in the most successful cases of fisheries management around the world. To the extent that the structural funds will continue taking for granted that control equipment to fulfill legal obligations will always be paid for by the administration, any possible debate on cost recovery will never happen. Another related question is whether the structural funds should continue co-financing Member States’ investments on control, which remains their exclusive competence. The traditional wisdom that this aid has been instrumental in improving Member States’ control capabilities should not prevent a discussion on an important question: why should the EU continue to pay a large part of the investment (and even running costs in some cases!) on control when Member States fiercely keep this policy pillar under national competence? Financing the contribution to governance? I have advocated above that a more collaborative approach to governance would mean, inter alia, a heavier investment from the industry in the decision-making process. This involvement would be burdensome for the industry, even more than today, when certain sectors of the industry already wonder if participation in ACs is worth the investment. Whether it is through providing Producer Organizations a role in this context, or through other means, it would be important to consider the financing of the participation in the Advisory Councils and perhaps other forms of getting involved in governance. Today, ACs enjoy a Commission financing through a lump sum of €300 000 a year. This can cover travel costs to participants, but it is more than questionable if this sum can really cover all the involvement necessary (including outside AC meetings) for a collaborative, bottom–up decision-making system. And this is particularly important for small-scale fishermen. We have already referred to the de facto under-representation of this sector that

often fails to attend meetings even if financing is available. Lack or insufficiency of a public support system to the full participation of the industry will benefit the most industrial sectors that, unlike artisanal ones, can afford to invest in governance. If the future CFP considers moving in the direction of a more collaborative system, it will have to provide the means to ensure that all the industry sectors are given a fair chance of being well-represented in the process. This point may appear contradictory with the previous one, but it is not. While control is a national competence, the management of fish stocks is part of the core responsibilities of the EU. And while the obligation to abide by EU law is an obligation for private operators regardless of any financial aid scheme, the management system is an EU competence where it makes sense that the EU tries to ensure all possible support mechanisms to facilitate its successful functioning.

Introducing market mechanisms in the CFP? In Chapter 11 we saw why and how the Commission to apply RBM at national level did not make headway in the 2013 reform. For the next reform, it is relevant to raise the question again, albeit under a different perspective, learning from the 2013 experience. RBM can have several advantages: • It can contribute to introduce much-needed flexibility into the fixed allocation of fishing rights under relative stability, as we saw in the section on “Relative stability” above. • It would facilitate the resolution of the problem of choke species and would contribute to make the landing obligation more effective in practice. • It can contribute to a better balance between fleet capacity and resources and to a general improvement in profitability and competitiveness. • It can increase the industry’s responsibility in the management of the stocks. • It can facilitate the introduction of cost recovery and other mechanisms of direct

Some ideas for the next CFP reform participation of the industry in the costs of management. Yet, as we saw in Chapter 11, the idea of introducing RBM even at national level was rejected in 2013. Should the Commission try again? The answer to this question is, in principle, straightforward: no. That is, if the proposals are the same as in 2013. But we have to remember that in 2013 there was also a number of Member States and members of the European parliament that were in favor. This makes it opportune if RBM could be proposed again but under different conditions.

An alternative approach: RBM partial and optional In Chapter 11 we examined the reasons for the failure of the RBM proposal in RBM. These reasons are legitimate, and are not likely to disappear any time soon. A possible alternative would be to introduce RBM only partially and voluntarily at EU level, and then let the experience determine if other Member States and or fishing segments would consider the experience positive and would like to join in the system. This is, after all, how RBM systems have tended to be introduced: first in some fisheries and then extended to others if and when the experience showed positive results. Under this different light, some options may be worth considering: • Partial application of RBM to a limited number of fisheries, for example those where the industry concerned would be in favor. In the past, the European pelagic fleet (including Norwegian interests) has been open to this possibility. This would not constitute a precedent to other fleet segments if they are not ready to go down that road. • Allocating part of the TACs for this purpose, thus leaving a percentage of national quotas to Member States (notably for their more artisanal fleets) but bringing to the market a given percentage of the national quotas. This would combine a traditional policy (for small-scale fisheries for example, or for those unwilling to participate) with RBM, in relative percentages that would be agreed among

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those Member States participating voluntarily. The percentages and conditions could be recommended by the Advisory Councils. The above debate is politically delicate and difficult. But the potential benefits of RBM systems, particularly under the new CFP with a discard ban and a serious problem with choke species, the question could be given some consideration. The idea of testing this kind of instrument as a pilot project within a certain fleet sector willing to give it a try justifies the need to accommodate the possibility of testing new management approaches in the CFP as suggested in Chapter 9.

A specific policy for small-scale fishing? The possible establishment of a more specific policy for small-scale fishing within the CFP could be discussed for a number of reasons: • A separate policy could include an allocation of fishing rights for the small-scale sector that would be “protected” from market mechanisms. This in turn would perhaps allow the consideration of market mechanisms for the large-scale part of the fleets without the fear of undermining the small-scale sector. • The use of structural funds has always been dominated by larger fishing interests, and the small-scale sector has been, very often, squeezed out from the structural investment. As mentioned above, the key for the success of a separate policy would be to ensure these interests a fair share of the resources. At present, since the responsibility of allocating national quotas is an exclusive competence of the Member States, the CFP cannot impose, only recommend that Member States allocate a fair amount of these national fishing rights to small-scale fishing. However, for future debates, the idea that the CFP itself will establish some minimum share of the overall resources to be allocated only among small-scale sectors of the EU could be explored, in the context of the revision of relative stability advocated above. This

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share could enjoy, for example, the protection of not being transferable to larger scale sectors under any circumstance. This share would not be the same in all Member States: it would have to take into account the relative importance of small-scale fishing in different Member States and even the absence of such a sector in a few ones, like the Netherlands or Belgium. This would have a twofold effect: • Providing the small-scale sector with a sense of protection that would allow them to look at their own future in a more creative way, without the fear of being swallowed by larger interests. This would also allow the adoption of special regimes on control, technical measures and so on, well-adapted to this sector. • Liberating the larger scale sector and allowing them to take more business-like management practices, that today the CFP does not favor, notably for fear of affecting the smallscale sectors. Possible elements for a specific small-scale policy could be, for example: • Provide a specific framework for these fleets, including control, the collection of data, and so on. It should be a simpler, lighter system, based on sampling. • Ring-fence a proportion of national quotas to this sector. That proportion would be different for different Member States, but it could be enshrined in EU law to ensure its long-term stability. These quotas would be protected from quota trading mechanisms. • Establish an obligation for Member States to limit access by larger boats to certain areas of fishing, so small-scale vessels would have exclusive access to certain fishing grounds within Member States’ territorial seas. • Have a specific chapter of the structural policy with ring-fenced and specific measures for small-scale fleets. These ideas would need to be modulated differently in different Member States according to the relative weight of this sector in each of them, and even simply not applied for those Member States where this sector does not exist.

A reformulated discard policy Even before the overall evaluation of the policy that usually precedes any policy revision, the current experience on the implementation of the landing obligation of 2013 allows us to draw some conclusions on the need for certain changes in the way the policy is defined.

New objectives In the section on “New policy objectives” above we introduced the idea of new objectives for the policy on discard reduction. These new objectives could have inter alia the following elements: • A general objective to reduce discards as much as practicable in all fisheries, taking into account the different levels of discarding in different fisheries, with a special consideration for mixed fisheries. • The setting up of a mechanism to enhance quota exchanges when necessary to facilitate implementation. • An obligation to monitor discard levels (through observers or cameras on board) at a significant part of the fleets. This is important because a more flexible approach should be accompanied by more strict rules on implementation to ensure the credibility of the approach. • A general objective of increasing selectivity so as to minimize the amount of unwanted catches. • The establishment of a plan to take care of inevitable unwanted catches, along the lines of existing experience in third countries. The overall objective should be to have more flexible objectives for the reduction of discards. In exchange for this flexibility, the policy should give itself more instruments to ensure that this flexible approach is really implemented in practice, in what would be a fundamental change of philosophy as compared with today’s policy. In any case, the need for these new objectives would be determined by other factors, notably the full use of existing and other possible flexibility mechanisms advocated in these

Some ideas for the next CFP reform pages. Questions such as the evolution of the policy toward more multi-species approaches or toward the introduction of changes in relative stability or to the partial introduction of RBM would have an important impact on the discard policy. The more such flexibility mechanisms are introduced, the less necessary it would be to introduce flexibility in the policy objectives themselves. These questions should be discussed together at some stage.

Accepting (while discouraging) over-quota landings In certain countries, there are also mechanisms to admit over-quota landings under certain conditions that reduce choke species effects but at the same time encouraging avoidance of such catches in the first place: • The New Zealand system of “deemed value” allows over-quota catches to be landed, but sold for a price fixed by the government with the intention of rendering such landings unattractive. • In Canada, the groundfish fishery of the west coast has for many years already accepted over-the-quota landings, but the value such landings has not benefited the fishermen concerned, and has been used instead to finance fisheries science and monitoring. • In Iceland, a similar system allows over-quota fish to be landed on condition that 50% of their sale value be taken by the State to help finance fisheries research. Such mechanisms are not foreseen in the CFP. True, they may not be simple to implement, in particular in the cases where catches of a given stock can be landed in very different places, and where official landing statistics take some time to collate and become official. These are real problems that cannot be ignored. However, the increasing use of the electronic logbook introduces the possibility of real-time monitoring of catch levels by Member States, at least for the largest vessels equipped with this technology. This opens up the possibility of developing, perhaps as a first pilot phase, the idea of allowing certain landings of over-quota species, under the condition that their value

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would be entirely dedicated to support fisheries science and monitoring (for example, to pay for observers).

Do we need to change the basic regulation? A number of the changes suggested above would not require modifications of the current basic regulation. As explained in Chapter 1, this basic regulation contains a number of features that have not been fully developed in practice, so introducing certain new policy strands may simply require the political will to do so, and can be done under the current legal basis. In other cases, however, the implementation of alternative approaches may require either legislative change or at least legislative clarification. In this section we provide examples of whether the ideas suggested in this book could be carried out on the current legal basis or whether changes or clarifications would be necessary. This is done based on experience, not on legal expertise. This experience points at a long tradition of legislative flexibility when needed.

Policy changes not requiring legislative change Examples of policy reform that do not require change in the current basic regulation can be: • Less detailed and prescriptive legislation. As we have argued, nothing prevents the co-legislators, under the current legal basis, to concentrate EU legislation more on principle and objectives and less on prescriptive, detailed rules. This interpretation may be questioned by lawyers, particularly those specialized in institutional questions. A tendency to leave more details to regionalization, or to other forms of decision-making, could be considered by some as a failure to preserve legal prerogatives. • A revamped relative stability. Relative stability is a principle, not necessarily a specific set of allocation keys. Indeed, some substantial changes in specific allocation keys have been introduced in the CFP without any legislative

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change at all. The example of blue whiting in December 2005 has been explained by this author (Penas Lado 2016). This demonstrates that relative stability can be revamped even in the absence of legislative change. A different question, however, is whether such revamping could take place outside the framework that a policy reform can establish, but that is more a political than a legal question.

Policy changes requiring clarification or interpretation Certain policy changes may not require a new legal basis, but perhaps simply an interpretation of the current one. Among these: • The role of Bmsy . In Chapter 3 we explained how the MSY concept, and the “aspirational” objective of Bmsy could be worked out in practice. While the text of Regulation 1380/2013 can legitimately be interpreted along the lines of the ideas exposed in this book, this is by no means agreed by everybody, and a number of decision-makers (notably some MEPs in the European Parliament) and stakeholders (notably environmental NGOs) are either unconvinced or adverse to such interpretations. This is therefore an area where, short of legislative changes, at least the future policy should make an effort to clarify the interpretation of the basic objectives, to dissipate disagreements that only add complexity and difficulty in the adoption of management measures. • Multi-species approaches. Theoretically they can be applied, but the legal basis does not entirely resolve the conflict between that option and the reference to “all stocks” in other parts of the text. A clarification of the real meaning of “all stocks” could be made without changing the legal text. Policy changes requiring legislative change Certain reforms will require changes or adjustments to the language of the basic regulation to create a new legal basis and, in other cases, to further clarify provisions that are too vague and open to different interpretation. These can be, for example:

• A new definition of MSY objectives, specifying the elements of flexibility referred to in the section “New policy objectives” above. • Some of the new policy objectives mentioned in that section above would need to be included to complement the terms of current Article 2.2 of Regulation 1380/2013. • Variable objectives of the landing obligation. The new approach advocated above would require changes in Article 15 of regulation 1380/2013. • A larger scope for regionalization. Article 18 of regulation 1380/2013 would need to be adapted to include more policy areas that could be subject to regionalization. • A possible new role for EFCA in the context of the above process. • A new regime for small-scale fisheries. A new article would be needed establishing a clear definition of small-scale, the possible derogations from the general rules applicable to this sector, and the possible specific instruments to be applicable to them. • A new regime for recreational fisheries. Over and beyond Articles 51–54 of the control regulation (1224/2009), a new article would precise the specific scope of fisheries and measures to be subject to EU management, as well as the policy elements that would stay at Member State level. This list is non-exhaustive and only shows the possible need for legislative change that may be needed depending upon the intentions of the Commission and the co-legislators on policy reform. Although much can still be done without questioning the current basic regulation, some policy changes or adjustments would make it desirable to revise some of the existing provisions of Regulation 1380/2013.

References Andersen, J.L., Nielsen, M., and Lindebo, E. (2009). Economic gains of liberalising access to fishing quotas within the European Union. Marine Policy 33: 497–503. Arnason, R. (2012). Global warming: new challenges for the common fisheries policy? Ocean and Coastal Management 70: 4–9.

Some ideas for the next CFP reform Carpenter, G., Kleinjans, R., Villasante, S., and O’Leary, B.C. (2016). Landing the blame: the influence of EU member states on quota setting. Marine Policy 64: 9–15. Drinkwater, K.F. (2005). The response of Atlantic cod (Gadus morhua) to future climate change. ICES Journal of Marine Science 6 (7): 1327–1337. https://doi .org/10.1016/j.icesjms.2005.05.015. EU (1983). Council Regulation (EEC) No 170/83 of 25 January 1983 establishing a Community system for the conservation and management of fishery resources. OJ L 24, 27.1.1983, p. 1–13. EU (2006). Council Regulation (EC) No 1967/2006 of 21 December 2006 concerning management measures for the sustainable exploitation of fishery resources in the Mediterranean Sea, amending Regulation (EEC) No 2847/93 and repealing Regulation (EC) No 1626/94. Official Journal of the European Union L 36/6 of 8.2.2007. EU (2007). Communication from the Commission to the Council and the European Parliament – A policy to reduce unwanted by-catches and eliminate discards in European fisheries. COM (2007) 0136 final. Brussels, 28 March 2007. EU (2009a). Green Paper. Reform of the Common Fisheries Policy. Brussels, 22.04.2009. COM (2009)163 final. EU (2009b). 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. Official Journal of the European Union L 343/1 of 22.12.2009. EU (2014). Regulation (EU) no 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund and repealing Council Regulations (EC) No 2328/2003, (EC) No 861/2006, (EC) No 1198/2006 and (EC) No 791/2007 and Regulation (EU) No 1255/2011 of the European Parliament and of the Council. Official Journal of the European Union L 149/1, 20.5.2014. EU (2018a). Proposal for a Regulation of the European Parliament and of the Council establishing

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a multi-annual plan for the fisheries exploiting demersal stocks in the western Mediterranean Sea. COM/2018/0115 final – 2018/050 (COD). EU (2018b). Proposal for a Regulation of the European Parliament and of the Council on the European Maritime and Fisheries Fund and repealing Regulation (EU) No 508/2014 of the European Parliament and of the Council. COM/2018/390 final – 2018/0210 (COD). EU (2018c). Proposal for a Regulation on the European Maritime and Fisheries Fund. Brussels 12/06/2018. COM (2018) 390. Hoefnagel, E., de Vos, B., and Buisman, E. (2015). Quota swapping, relative stability and transparency. Marine Policy 57: 111–119. Holden, M. (1994). The Common Fisheries Policy: Origin, Evaluation and Future. Fishing News Books Ltd, 274 pp. Khalilian, S., Froese, R., Proelss, A., and Rerquiate, T. (2010). Designed for failure: a critique of the common fisheries policy of the European Union. Marine Policy 34 (6): 1178–1182. Kraak, S.B.M., Reid, D.G., Gerritsen, H.D. et al. (2012). 21st century fisheries management: a spatio-temporally explicit tariff-based approach combining multiple drivers and incentivising responsible fishing. ICES Journal of Marine Science 69 (4): 590–601. https://doi.org/10.1093/icesjms/ fss033. Penas Lado, E. (2016). The Common Fisheries Policy: The Quest for Sustainability. Wiley Blackwell, 392 pp. Reiss, H., Greenstreet, S.P.R., Robinson, L. et al. (2010). Unsuitability of TAC management within an ecosystem approach to fisheries: an ecological perspective. Journal of Sea Research 63: 85–92. Schwach, V., Bailly, D., Christensen, A.S. et al. (2007). Policy and knowledge in fisheries management: a policy brief. ICES Journal of Marine Science 64: 798–803. Simons, S.L., Doring, R., and Temming, A. (2015). Modelling fishers’ response to discard prevention strategies: the case of the North Sea saithe fishery. ICES Journal of Marine Science 72 (5): 1530–1544. https://doi.org/10.1093/icesjms/fsu229. Stiasny, M.H., Mittermayer, F., Sswat, M. et al. (2016). Ocean acidification effects on Atlantic cod larval survival and recruitment to the fish population. PLoS One 11 (8): e0155448. https://doi.org/10 .1371/journal.pone.0155448.

Glossary

Advisory Councils (ACs): Stakeholder bodies established under the CFP to advise on policy decisions. Acquis communautaire or acquis: EU legislation applicable at any given moment. Blim : Limit reference point for spawning stock biomass (SSB). Bmsy : Spawning stock biomass (SSB) that results from fishing at FMSY for a long time. Benthic community: The benthic community is made up of organisms that live in and on the bottom of the ocean floor. These organisms are known as benthos. Benthos include worms, clams, crabs, lobsters, sponges, and other tiny organisms that live in the bottom sediments. Biodiversity: The variety of plant and animal life in the world or in a particular habitat, a high level of which is usually considered to be important and desirable. “Brexit”: Neologism referring to the exit of the United Kingdom from the European Union. Choke species: A term used to describe a species with a low quota that can cause a vessel to stop fishing even if they still have quota for other species. Co-decision: A procedure, in the European Union, that requires consensus to be reached between the Council and the Parliament for legislation to be adopted. Since 2010 it is the ordinary legislative procedure for the CFP. Council of Ministers: Government ministers from each EU country meet to discuss, amend and adopt laws, and coordinate policies. Demersal fish: Demersal fish live and feed on or near the bottom of the sea. Discards: Discards are the portion of a catch of fish which is not retained on board during commercial fishing operations and are returned, often dead or dying, to the sea. Ecosystem approach: Ecosystem approach to fisheries management. Management that takes into

account the effects of fisheries on the ecosystem and the effects of the ecosystem on the fish stocks. Fmsy : Fishing mortality consistent with achieving maximum sustainable yield. Fish mortality: Fish mortality is a parameter used in fisheries population dynamics to account for the loss of fish in a fish stock through death. The mortality can be divided into two types: • Natural mortality: The removal of fish from the stock due to causes not associated with fishing. Such causes can include disease, competition, cannibalism, old age, predation, pollution or any other natural factor that causes the death of fish. In fisheries models natural mortality is denoted by (M). • Fishing mortality: The removal of fish from the stock due to fishing activities using any fishing gear. It is denoted by (F) in fisheries models. Marine Protected Area (MPA): Protected areas of seas, oceans or estuaries. These marine areas can come in many forms ranging from wildlife refuges to research facilities. They restrict human activity for a conservation purpose, typically to protect natural resources. Maximum Economic Yield (MEY): The value of the largest positive difference between total revenues and total costs of fishing (including the cost of labor and capital) with all inputs valued at their opportunity costs. Maximum Sustainable Yield (MSY): The maximum level at which a natural resource can be routinely exploited without long-term depletion. Pelagic fish: Fish living in the open ocean near the surface, as opposed to coastal areas or the ocean floor. Spawning Stock Biomass (SSB): The combined weight of all individuals in a fish stock that are capable of reproducing. Regionalization: In the context of the EU’s Common Fisheries Policy, procedure whereby groups of

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Member States are authorized to develop basic EU fisheries legislation applicable in a given area. Relative stability: Principle according to which fishery resources managed by the EU are shared out among EU Member States as fixed percentages. Total Allowable Catch (TAC): A catch limit set for a particular fishery, generally for a year or a fishing season. TACs are usually expressed in tonnes of live-weight equivalent, but are sometimes set in terms of numbers of fish. Trawl: The trawls are cone-shaped nets (made from two, four or more panels) which are towed, by

one or two boats, on the bottom or in midwater (pelagic). The cone-shaped body ends in a bag or cod end. Treaty on the Functioning of the European Union (TFEU): Current legal basis for the EU. Adopted in 2009, entered into force in 2010. Also referred to as “Treaty of Lisbon.” Trilogue Neologism referring to the “dialogue of three” (Council of Ministers, European Parliament and European Commission) whereby the three institutions negotiate EU legislation under the co-decision procedure.

Abbreviations

ACs: Advisory Councils EFCA: European Fisheries Control Agency FAO: Food and Agriculture Organization GFCM: General Fisheries Commission for the Mediterranean ICCAT: International Commission for the Conservation of Atlantic Tunas ICES: International Council for the Exploration of the Sea ITQ: Individual Transferable Quota MCRS: Minimum Conservation Reference Size MSY: Maximum Sustainable Yield NAFO: Northeast Atlantic Fishery Organization NEAFC: North East Atlantic Fishery Commission

NMFS: National Marine Fisheries Service NOAA: National Oceanic and Atmospheric Administration RBM: Rights-Based Management RFMO: Regional Fishery Management Organization STECF: Scientific, Technical and Economics Committee for Fisheries TAC: Total Allowable Catch TCM: Technical Conservation Measures TFEU: Treaty on the Functioning of the European Union UNCLOS: United Nations Convention on the Law of the Sea

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Index

Advisory Councils, 99, 120, 130, 155, 195, 196, 198, 199, 200, 201, 202, 205, 206, 207, 226, 231, 232, 233, 234, 331, 338, 340, 341, 349, 352, 356, 357 Aquaculture, 15, 17, 18, 22, 36, 120, 135, 165, 171, 176, 178, 180, 206, 295, 296, 297, 298, 299, 300, 301, 302, 304, 305, 307, 308, 309, 310, 311, 323, 324, 325, 328, 329, 330, 335, 336, 346, 353, 354 Baltic, 7, 18, 32, 35, 44, 54, 56, 57, 58, 59, 60, 61, 63, 77, 78, 81, 82, 83, 91, 95, 96, 97, 98, 99, 100, 101, 107, 114, 127, 129, 142, 144, 145, 148, 149, 150, 157, 162, 166, 181, 220, 221, 225, 228, 234, 318, 322, 338, 347, 355 Biomass, 12, 14, 19, 20, 21, 22, 25, 30, 44, 45, 47, 48, 49, 50, 51, 52, 53, 58, 59, 60, 62, 64, 72, 76, 79, 80, 85, 93, 101, 151, 166, 174, 182, 205, 220, 222, 241, 246, 257, 262, 270, 291, 292, 294, 306, 318, 320, 322, 326, 336, 342 Climate change, 2, 9, 23, 95, 96, 98, 105, 120, 177, 203, 207, 224, 244, 256, 257, 258, 259, 286, 295, 296, 297, 300, 305, 306, 307, 308, 309, 310, 317, 318, 319, 320, 321, 322, 323, 324, 343, 344, 351, 354 Co-decision, 8, 56, 57, 108, 192, 194, 218, 219, 220, 221, 225, 229, 231, 277, 278, 337, 338, 339 Council (of ministers), 1, 2, 7, 8, 18, 30, 55, 56, 57, 87, 106, 127, 146, 163, 192, 194, 219, 220, 221, 234, 265, 274, 277, 278, 303, 318, 331, 343, 344, 347, 352 Court of Justice, 7, 36, 127, 268, 272, 345 Discard(s), discarding, 6, 11, 12, 29, 34, 36, 55, 63, 66, 73, 74, 97, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 140, 142, 143, 145, 146, 148, 151, 155, 156, 157, 162, 169, 181, 185, 186, 191, 193, 195, 196, 201, 207, 218, 224, 227, 231, 267, 272, 275, 276, 279, 280, 313, 318, 324, 336, 337, 339, 345, 348, 349, 357, 358, 359

Ecosystem approach, 50, 52, 53, 75, 81, 83, 84, 149, 151, 161, 162, 164, 176, 179, 180, 181, 182, 206, 339 EFCA, 132, 133, 234, 278, 279, 280, 342, 360 Environment, 4, 18, 22, 26, 27, 28, 31, 32, 37, 38, 39, 43, 44, 45, 46, 50, 71, 77, 81, 117, 118, 121, 142, 145, 151, 161, 162, 163, 164, 165, 166, 167, 168, 169, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 183, 184, 185, 192, 197, 198, 199, 200, 202, 203, 205, 206, 207, 211, 216, 217, 218, 220, 222, 223, 225, 226, 229, 230, 231, 233, 240, 244, 245, 249, 255, 260, 267, 274, 276, 285, 290, 291, 296, 297, 298, 299, 300, 301, 306, 310, 311, 312, 324, 326, 328, 329, 330, 331, 335, 339, 341, 360 (European) Commission, 1, 2, 3, 4, 7, 8, 13, 18, 19, 20, 25, 45, 47, 54, 55, 56, 57, 62, 65, 66, 77, 81, 86, 97, 100, 103, 104, 111, 112, 113, 114, 120, 122, 123, 124, 125, 126, 129, 142, 145, 146, 151, 152, 155, 161, 162, 166, 183, 184, 194, 195, 196, 199, 202, 204, 206, 207, 209, 212, 213, 215, 217, 219, 220, 221, 224, 225, 227, 230, 231, 234, 251, 252, 254, 255, 265, 266, 267, 271, 272, 275, 277, 278, 279, 280, 282, 283, 285, 293, 299, 303, 304, 305, 311, 318, 324, 327, 328, 330, 335, 338, 340, 341, 342, 345, 353, 354, 355, 356, 357 (European) Parliament, 2, 8, 18, 55, 56, 57, 59, 60, 62, 106, 127, 129, 144, 154, 183, 192, 194, 218, 219, 220, 234, 268, 272, 273, 274, 277, 278, 318, 357, 360 Fishing mortality, 13, 14, 20, 25, 36, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 64, 66, 67, 73, 76, 77, 78, 79, 83, 91, 92, 93, 96, 101, 104, 106, 107, 112, 117, 120, 126, 141, 142, 143, 144, 145, 147, 150, 153, 155, 162, 166, 182, 183, 192, 198, 207, 219, 220, 225, 285, 286, 291, 292, 293, 318, 322, 331, 332, 336, 339, 352 Fleet, 5, 11, 17, 21, 36, 40, 43, 58, 65, 66, 71, 77, 78, 85, 90, 94, 95, 104, 108, 112, 115, 121, 122, 125, 130, 131, 132, 133, 134, 136, 137, 143,

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Fleet (cont’d), 5, 11, 17, 21, 36, 40, 43, 58, 65, 66, 71, 77, 78, 85, 90, 94, 95, 104, 108, 112, 115, 121, 122, 125, 130, 131, 132, 133, 134, 136, 137, 143, 146, 148, 150, 152, 155, 156, 166, 168, 169, 170, 171, 172, 181, 195, 198, 213, 214, 216, 218, 227, 231, 234, 239, 240, 241, 245, 248, 250, 251, 252, 253, 257, 260, 261, 265, 266, 267, 269, 270, 271, 273, 274, 275, 276, 278, 279, 280, 282, 283, 284, 285, 297, 302, 303, 304, 321, 322, 327, 346, 347, 348, 349, 350, 355, 356, 357, 358

Multiannual plan, 54, 56, 57, 58, 59, 61, 68, 83, 84, 99, 105, 142, 192, 207, 218, 219, 220, 221, 225, 339 North Sea, 44, 47, 49, 54, 58, 61, 62, 63, 64, 65, 66, 73, 74, 75, 76, 77, 80, 82, 83, 84, 85, 99, 111, 112, 114, 118, 120, 125, 130, 136, 153, 167, 168, 175, 182, 183, 204, 205, 212, 220, 221, 222, 224, 225, 230, 260, 293, 317, 319, 320, 327, 332, 355 Plastics, 171, 179, 310, 311, 312, 331

Governance, 87, 123, 129, 130, 147, 152, 163, 181, 183, 191, 192, 199, 200, 202, 206, 210, 211, 218, 219, 220, 221, 222, 223, 224, 225, 226, 231, 232, 233, 237, 238, 239, 240, 243, 244, 245, 246, 247, 248, 250, 251, 252, 253, 254, 255, 258, 259, 279, 282, 289, 298, 301, 307, 309, 311, 324, 329, 330, 335, 336, 337, 339, 340, 341, 356 IUU, 37, 170, 202, 205, 239, 244, 247, 250, 251, 252, 253, 254, 255, 256, 258, 278 Landing obligation, 4, 9, 19, 27, 28, 33, 34, 35, 36, 46, 47, 54, 65, 66, 68, 73, 74, 76, 83, 88, 111, 112, 113, 114, 115, 118, 119, 120, 122, 123, 124, 126, 127, 128, 129, 131, 132, 133, 136, 137, 142, 149, 151, 155, 156, 157, 185, 195, 265, 266, 272, 273, 278, 279, 280, 286, 319, 342, 344, 347, 350, 354, 356, 358, 360 Marine protected area, 106, 174, 177, 240, 290 Maximum economic yield, 45 Maximum sustainable yield, 3, 18, 25, 27, 41, 43, 44, 49, 55, 59, 71, 73, 91, 144, 166, 191, 265, 291, 327, 336 Mediterranean, 6, 9, 13, 14, 16, 17, 18, 21, 60, 61, 77, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 112, 114, 124, 131, 142, 147, 148, 149, 151, 156, 157, 162, 165, 195, 221, 230, 240, 245, 276, 279, 281, 285, 286, 293, 295, 307, 308, 318, 335, 336, 340, 349, 351, 352, 355 Mesh size(s), 87, 91, 106, 107, 112, 147, 149, 150, 151, 152, 156, 157

Regionalization, 4, 60, 146, 151, 152, 156, 163, 192, 193, 194, 195, 196, 199, 201, 218, 221, 224, 225, 226, 227, 231, 232, 265, 277, 337, 339, 340, 341, 359, 360 Relative stability, 2, 9, 33, 35, 46, 47, 54, 55, 64, 65, 66, 72, 81, 82, 83, 86, 105, 112, 120, 121, 122, 124, 125, 126, 127, 128, 136, 142, 143, 147, 148, 149, 181, 182, 183, 219, 266, 271, 272, 273, 319, 320, 322, 342, 343, 344, 345, 346, 347, 348, 350, 351, 356, 357, 359, 360 RFMO, 170, 248, 250, 251, 252, 255, 256, 257, 258, 259 Seafood, 10, 12, 14, 22, 33, 37, 38, 52, 79, 164, 177, 184, 215, 216, 218, 258, 296, 297, 298, 300, 303, 311, 323, 324, 327, 331, 335, 336, 337, 350, 354 Selectivity, 53, 61, 72, 73, 84, 85, 86, 92, 94, 99, 106, 107, 117, 126, 127, 129, 130, 136, 149, 150, 151, 152, 153, 156, 157, 184, 185, 226, 228, 276, 340, 358 STECF, 20, 82, 92, 94, 101, 102, 103, 104, 129, 145, 147, 196, 199, 200, 204, 207, 211, 212, 293 Technical measures, 62, 84, 85, 86, 91, 97, 107, 112, 129, 130, 149, 150, 151, 152, 155, 157, 162, 192, 206, 207, 226, 227, 231, 340, 358 Treaty, 8, 9, 20, 25, 26, 27, 28, 44, 45, 56, 57, 161, 167, 191, 219, 229, 277, 278, 302, 328, 345 Trilogue, 25, 54, 57, 60, 128, 220, 221, 353 Western waters, 35, 65, 122, 125, 137, 146, 229, 234, 338

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