Explanatory Memorandum to COM(2004)289 - Community Fisheries Control Agency and amending Regulation (EC) No 2847/93 establishing a control system applicable to the Common Fisheries Policy

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dossier COM(2004)289 - Community Fisheries Control Agency and amending Regulation (EC) No 2847/93 establishing a control system applicable to the ...
source COM(2004)289 EN
date 28-04-2004
1. Summary

The Green Paper i on the reform of the Common Fisheries Policy (CFP) sets out, inter alia, problems in the area of control and enforcement of the rules of the CFP by Member States as well as possible solutions including the establishment of a Joint Inspection Structure (JIS). The Commission's action plan for the reform of the CFP and its implementation was presented in the Communication on the reform of the CFP (the 'roadmap') i in which the Commission announced an Action Plan on cooperation in enforcement as well as, following a feasibility study, a proposal establishing a JIS at Community level.

The Communication 'towards uniform and effective implementation of the CFP' i gives effect to these initiatives listed in the Roadmap. The concept of a Community Fisheries Control Agency (CFCA) was set out in this Communication for the purpose of the feasibility study. The Council and the European Parliament both supported this concept and the study.

Representatives of Member States, meeting at Head of State or Government level, on 13 December 2003, in Brussels, welcomed the Commission's intention to submit, before the end of March 2004, a proposal on the establishment of a Community Fisheries Control Agency: they agreed on the urgency to establish such Agency and that such Agency shall have its seat in Spain.

By means of the present regulation the Commission proposes the establishment of the CFCA (The Agency). Its core task will be operational coordination of inspection and surveillance by Member States. It is expected that the Agency will create a solid partnership with and between Member States and the Commission and that it well contributes to a Community culture of control and enforcement in the fisheries sector.

Contents

1.

2. Introduction


2.

2.1. Motives of the Commission


The application of the rules of the CFP by Member States requires a sound operational control and inspection structure on the level of the Community, sufficient means of control and inspection and an appropriate strategy for the co-ordinated deployment of these means.

The objectives to be achieved are:

* the effective implementation of the CFP; and

* uniform inspection and enforcement throughout the Community.

Achieving these objectives is essential if the support of the fishing industry is to be gained for the CFP.

The experience with the current control and inspection arrangements as organised by each Member State has shown that these new objectives can only be achieved by reinforcing the national control and inspection structures through the creation of an organisation structure at Community level.

Currently, control and inspection activities of the competent authorities in Member States are not coordinated in a systematic manner. Efforts of Member States are not matched by other Member States which may have other priorities and practices. Therefore, gaps and weaknesses in control and enforcement occur at the level of the Community. The fishing industry complains about fragmented and uneven control and enforcement which is sometimes even experienced as discriminatory by fishermen.

Most Member States have assigned, within the context of their legal and administrative systems, the responsibility for control and enforcement of the CFP to several established authorities at both national and regional levels (such as fisheries inspectorates, coastguards, navy, customs, police, etc.). Many of these authorities have duties not only in fisheries but also in other domains which make it difficult to coordinate fisheries control.

It has been observed, notably in Member States where several authorities are involved in control and enforcement of the rules of the CFP, that coordination between these authorities, even where based on clear rules, does not offer in all cases sufficient flexibility to respond in a timely manner to the operational challenges of fisheries control and enforcement.

The Community's performance on the international level is seen by third parties as complex when it comes to cooperation in matters pertaining to control and enforcement of applicable rules as Member States are responsible. Member States apply the rules of the CFP in accordance with their own traditions and practices. Third Parties experience cooperation with the Community in such areas as complex, in particular by the multiplicity of partners and traditions. Problems in these areas may have repercussions for the Community as a whole.

Against this background, and notably in order to ensure effective control and inspection in accordance with the Community's international obligations, the Commission assumed over the past decade operational tasks in the area of inspection and surveillance in international waters. Pursuant to the Community's international obligations under the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, since 1990, the Commission has chartered a surveillance vessel in order to fulfil these tasks in the North Atlantic including, since 2000, some tasks in the North East Atlantic under the NEAFC. Moreover since 1995, the Commission has operated an observer scheme for observers on board Community fishing vessels operating in the NAFO Regulatory Area.

The Commission will cease to undertake these tasks for which Member States are now responsible in accordance with Articles 23, 24, 25 and 28 of Regulation (EC) No 2371/2002. The involvement of the Commission in operational matters pertaining to control and inspection is not compatible with its task of controlling and evaluating the application of the rules of the CFP by Member States in accordance with Article 27 of Regulation (EC) No. 2371/2002. The Commission will concentrate on its core tasks under the Treaty and the CFP and should not be involved in control and inspection activities carried out by Member States and should not deal with operational matters such as inspection and surveillance and operation of observer schemes.

The carrying out of these operational tasks by the Commission has been appreciated by third countries, the Member States concerned and the fishing industry. The undertaking of these activities by the Commission at sea must be followed up by inspections of landings by Member States of vessels returning from the international waters. However, the quality of those inspections is not always guaranteed and, therefore, compliance with applicable rules cannot always be ensured.

3.

2.2. Operational coordination


The Commission proposes that:

* coherent control and inspection programmes to be adopted by the Commission (MCS i Programmes);

* national means of control and inspection are pooled by Member States for joint deployment organised by a Community body in accordance with such control and inspection Programmes.

The Agency will assist Member States in complying with their obligations under Community law pursuant to agreements concluded between the Community and third Parties. It should coordinate control and inspection activities by Member States to fulfil notably the international obligations of the Community in a clear, transparent and uniform manner.

The establishment of the Agency will not change the responsibility of Member States for control and enforcement within the scope of the CFP. Moreover, the proposed structure will not amend the provisions of Chapter V of Regulation (EC) No 2371/2002 nor go beyond the provisions of Art. 28 of the said Regulation.

Joint deployment of national means of control and inspection, in line with an appropriate Community strategy, will be the core task. The Agency will ensure operational co-ordination of control and inspection by Member States in the genuine interest of the Community as a whole.

Operational coordination will include:

- planning the deployment of means of control and inspection pooled by Member States;

- organising the deployment of means of control and inspection by Member States.

Planning the deployment of means of control and inspection will include forming multinational teams for inspection at sea and ashore in the interest of the Community. Organising deployment will include issuing instructions concerning the geographical areas, the stocks, fisheries and the fleets to be surveyed and inspected in a given period.

In practice, an efficient working relationship between the Agency and national authorities must be developed. In the interest of the Community, the Agency should assume leadership in the deployment of means of control and inspection in close co-operation with the competent national authorities concerned.

The Agency will ensure that control and inspection activities by national authorities are fully co-ordinated. Joint deployment should optimise the use of national means.

The Agency will have at its disposal as tool for organising joint deployment of control and inspection means, a Community Fishing Vessel Monitoring Centre providing on-line, real time access to information on positions of fishing vessels flying the flag of the Member States concerned. The Agency will dispose of all information whilst Member States have only the information regarding their vessels and their waters.

The strength of the proposed structure lies in the clear reference framework adopted by the Commission (priorities, benchmarks etc), whilst the Agency organises the achievement of these objectives on the basis of national means of control and inspection. The Member States, on their part, must pool their means and remain responsible for their basic obligations in the field on control and inspection.

4.

2.3. Tasks


As a specialised technical Community body, the Agency will carry out in addition to operational coordination other tasks in the area of control and inspection within the scope of the CFP.

The Agency will carry out tasks relating to the obligations of the Community under regional fisheries organisations and bilateral fisheries agreements. It will assist notably Member States in complying with their obligations in the area of control and inspection and it may carry out tasks on behalf of Member States.

To this end, the Agency may provide contractual services to Member States at their request and on their expense. These services may include the chartering and operation of surveillance vessels and the contracting of observers for Joint use of the Member States concerned.

Furthermore, the Agency will assist Member States in the following areas:

* training of inspectors,

* joint procurement of goods for control and inspection (gauges, logbooks) and the coordination of the implementation of joint pilot projects for testing new control and inspection technologies,

* development of joint operational control and inspection procedures,

* elaboration of criteria for provision and exchange of means of control and inspection.

5.

3. Choice of Community structure


The creation of a specialised technical body at Community level, to serve as a permanent platform for cooperation between Member States, is an appropriate solution to achieve the above objectives. This body should take the form of an Agency.

In the case of the proposed CFCA i, the Community legislator may centralise the execution of specific tasks of a technical nature in an Agency in so far as these tasks do not interfere with the functions of Community institutions as laid down in the Treaty and secondary Community legislation. Against this background, the tasks of the CFCA are defined in the area of operational coordination and cooperation between Member States. These tasks do not interfere with the functions of the Commission under the Treaty and the CFP.

Control and enforcement of the rules of the CFP is primarily a matter for public authorities by Member States. The Agency shall be a public body of the Community having legal personality. The presence of representatives of the Member States and the fishing industry together with representatives of the Commission in the Administrative Board of the Agency will enhance the quality of decision making. The Director will be in charge of the operation of the Agency. In order to guarantee the effectiveness of operational coordination by this Agency, the Administrative Board will not be involved in the day-to-day work of the staff concerning planning and organisation of deployment of national means of control and inspection by Member States.

In connection with multi-annual recovery or management plans referred to in Articles 5 and 6 of Regulation (EC) No 2371/2002, Regional Advisory Councils may be concerned by control and enforcement of these rules. In accordance with Article 31 i of Regulation (EC) No 2371/2002, Regional Advisory Councils may submit recommendations or suggestions to the Commission on the basis of which the latter may act in accordance with Art. 9 i of the proposed regulation.

As a Community body, the Agency is bound by all Community requirements applicable to it. The proposed regulation is drawn up in accordance with the Financial Regulation applicable to the general budget of the European Communities i and its implementing rules i, where possible the new staff rules for Community personal entering into force on 1st May 2004 as well as a number of other regulations. The proposal should reflect best practice and experience acquired to date regarding the establishment and functioning of Community agencies.

6.

4. CFP


7.

4.1. Common Fisheries Policy


In the framework of the reform of the Common Fisheries Policy (CFP), Chapter V of Council Regulation (EC) No 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the CFP, i provides for a new legal framework for a Community control and enforcement system. This Chapter consolidates the basic principles and requirements of previous regulations.

The Community control and enforcement system is designed to ensure that access to and exploitation of fish stocks is controlled throughout the whole fisheries chain and that compliance with the rules of the CFP, including structural and market policies, is enforced. The responsibilities of the Member States and the Commission are clarified, as well as the conditions for engaging in fishing and associated activities. Furthermore, the system lays down the control and enforcement instruments and the conditions for co-operation and co-ordination between Member States with third Parties.

As regards control and inspection of fishing activities beyond Community waters, the Community has entered into international obligations pursuant to joint international control and enforcement schemes and bilateral Fisheries Agreements. These obligations have been incorporated into Community law in specific regulations such as Regulation (EC) N° 2791/1999 laying down certain control measures applicable in the area covered by the Convention on Future multilateral cooperation in the North-east Atlantic Fisheries i. In accordance with Article 11 of that Regulation the obligations of the Community in the field of inspection and surveillance are complied with by the Member States concerned. Similar provisions exist in the framework of other international agreements or will be proposed by the Commission.

8.

4.2. Responsibilities of Member States


The basic responsibilities of the Member States in the area of control and enforcement of the rules of the CFP are laid down in Articles 23, 24, 25 and 28 of Regulation (EC) N° 2371/2002. Member States are required to ensure effective control, inspection and enforcement of the rules of the Common Fisheries Policy. To this end, Member States must adopt the measures, allocate the financial and human resources and set up the administrative and technical structure necessary for this purpose. Moreover, Member States are required to cooperate with each other and with third countries to ensure compliance with the rules of the Common Fisheries Policy and ensure that the control and inspection activities are coordinated.

9.

4.3. Responsibilities of the Commission


The responsibilities of the Commission in the area of control and enforcement of the rules of the CFP are laid down in particular in Articles 26 and 27 of Regulation (EC) N° 2371/2002 as well as in the Treaty. Under the CFP, the Commission shall evaluate and control the application of the rules of the CFP by the Member States and facilitate coordination and cooperation between them. For the purpose of evaluating and controlling the application of the rules of the CFP by Member States, the Commission may, of its own accord and by its own means, initiate and carry out audits, inquiries, verifications and inspections concerning the application of the rules of the CFP by the Member States.

As regards international agreements, the Commission negotiates, on behalf of the Community, with third parties which may include joint international control and enforcement schemes. Also in this context certain tasks have been allocated to the Commission in accordance with Community law in particular in order to facilitate coordination on the level of the Community.

In accordance with Article 34c of Regulation (EC) No. 2847/93, the Commission must determine which fisheries should be subject to specific monitoring programmes and the conditions governing such programmes. Member States must adopt the necessary measures including human resources and material resources, to facilitate the implementation of these programmes. This article needs to be adapted to the structure proposed by the present regulation.

In accordance with Article 11 i of Regulation (EC) No 2791/1999, the Commission may draw up joint operational surveillance and inspection programmes for the purpose of fulfilling its obligations under the NEAFC i scheme. Similar provisions will be proposed for NAFO i and other similar international agreements.

10.

5. The functioning of the CFCA


The Agency will need a budget allocation that is large enough to enable it to hire its personnel, as described above, to fulfil its tasks and to ensure its smooth and efficient functioning. For the first year (2006) this annual budget can be estimated at approximately EUR 4.9 millions increasing to approximately EUR 5.0 million when the Agency is fully operational. (Approximately the same amount is saved on the Budget for the Commission relating to 'international control' (110703) once the Commission has withdrawn from providing an inspection vessel and observers in NAFO).

The Agency's budget will be mainly financed by a contribution from the Community. Other sources of income would include charges to Member States for specific services provided to them on a contractual basis. The Agency could also charge for some fees for its publications as well as for the provision of training and other services. It is likely, however, that such charges and fees would remain a minor part of the total income of the Agency.

The Agency will have an advantage in providing the independent high quality technical expertise, know how and managerial capacity necessary for the implementation of parts of the CFP.

The inclusion of Member States on the Administrative Board will allow them to be involved in the performance of activities that relate, and give effect, to Member State competences. The inclusion of fishing industry representatives on the Administrative Board will improve the relations with the fishing industry and increase the quality of decision making thus enhancing the acceptability within the industry of the activities of the Agency.

The full optimisation of the operational functioning of the Agency is subject to a study contracted by the Commission. The report of this study will be available in the autumn of 2004.

11.

6. Choice of the legal basis


The legal basis of the proposed Regulation is Article 37 which is consistent with the objective of the proposal and with all legislation adopted so far in connection with the Common Fisheries Policy.

12.

7. Subsidiarity and proportionality


The establishment of an Agency is necessary to serve as a permanent independent platform to ensure operational cooperation and coordination between Member States. Operational coordination will be activated in all cases where it is opportune for the achievement of Community objectives.

Other solutions based on voluntary cooperation between Member States or ad hoc Community programmes without a permanent Community body would not achieve the objectives whilst operational coordination is not compatible with the functions of the Commission under the Treaty and the CFP.

Its independence from the Commission in its capacity as 'controller of the controllers' will permit it to establish a sound relationship with the national competent authorities in Member States regarding the organisation of control and inspection by Member States.

The Agency will support Member States in complying with their obligations under the CFP in the area of cooperation and coordination of control and inspection by organising a rational deployment by Member States of pooled means of control and inspection in accordance with Community objectives, benchmarks, priorities and uniform inspection procedures adopted by the Commission

The establishment of the Agency will also improve the relations between the Community and outside partners by centralising contact points and promoting uniform traditions and practices.

The above mechanism is needed to balance interests of individual Member States against the collective interest of ensuring proper control and enforcement of the rules of the CFP in areas where their fishing fleets jointly exploit fish stocks subject to conservation and control measures adopted by the Community. Moreover, this mechanism will allow the optimisation of the cost/benefit ratio of deployment strategies for national means of inspection and surveillance.

13.

8. Commentary on articles


Objective (Article 1)

This Article deals with the objective of the Regulation, which is to establish the Agency so as to provide for the organisation of the operational coordination of fisheries control and inspection activities by the Member States and to assist them to cooperate as required by the CFP.

14.

Scope of operational coordination (Article 2)


This Article makes clear the scope of the responsibilities of the Agency regarding operational coordination of fisheries control and inspection activities, ranging form international waters and the waters of third countries, through Community waters on to the territory of Member States up to the point of first sale.

15.

Definitions (Article 3)


This Article sets out some basic definitions of key terms used in the Regulation.

16.

Mission (Article 4)


The mission of the Agency is defined in this Article and lies in the field of operational coordination both in connection with the obligations of the Community concerning inspection and surveillance of fishing activities in international waters and in Community waters, and the provision of assistance to Member States in the area of control and enforcement.

The mission of the Agency must ensure proper implementation of notably Article 28 of Regulation (EC) No 2371/2002.

17.

Tasks relating to the control and inspection obligations of the Community (Article 5)


This Article is concerned with the tasks of the Agency that seek to give effect to the obligations of the Community regarding control and inspection. Such obligations are undertaken by the Community on the basis of international agreements concluded through Regional Fisheries Organisations and also those agreements concluded with third countries. The Member States are in turn bound to fulfil and give effect to those obligations. The tasks of the Agency are therefore to assist the Community and the Member States in this process, principally through the operational coordination of the control and inspection activities of the Member States. Consequently the Article confers the necessary powers on the Agency within tightly bound parameters.

18.

Organisation of operational coordination (Article 6)


This Article is concerned with the operational coordination of inspection and control by Member States within Community Waters. A key element of this Article is the reference to the Community Fisheries Monitoring Centre which will use satellite tracking technology to provide a real-time picture of fishing activities and inspection and control opportunities.

19.

Provision of contractual services to Member States (Article 7)


This Article will permit the Agency to provide, on a contractual basis, services to Member States regarding inspection and control. Such services might include the chartering and operation of an inspection vessel to enable Member States to fulfil their obligations within Community waters or beyond as well as the provision of observers for existing observer schemes such as those relating to the NAFO.

20.

Assistance to Member States (Article 8)


This Article will permit the Agency to provide assistance to the Member States with regard to duties pertaining to inspection and control.

21.

Control and inspection obligations of the Community (Article 9)


This Article identifies one of the triggers for the Agency to undertake operational coordination, namely the undertaking by the Community of control and inspections obligations pursuant to an agreement relating to a regional fisheries organisation or an agreement with a third country. Such obligations would, of course, relate to fisheries activities beyond Community waters.

22.

Implementation of specific control and inspection programmes (Article 10)


The other trigger for Agency activity is the adoption by the Commission of a specific monitoring control and inspection programme pursuant to Article 34c of Regulation (EEC) No 2847/93 (as amended by this Regulation).

23.

Content of joint deployment plans (Article 11)


Operational coordination is to take place on the basis of joint deployment plans which must comply with the provisions specified in this Article. Key points to note are that such plans are addressed to specific Member States, those having an interest in a given fishery, and their obligation to pool means of inspection and control as regards the implementation of such plans is dependent on their relative interest in the fishery, as defined in paragraph 2.

24.

Procedure for the adoption of joint deployment plans (Article 12)


The procedure whereby joint deployment plans are to be developed and adopted is set out in this Article. Evidently, the content of such plans must take account of the obligations of Member States arising from existing joint deployment plans as well as applicable control and inspection programmes.

25.

Implementation of joint deployment plans (Article 13)


This Article imposes the basic duty on Member States with regard to the implementation of joint deployment plans.

26.

Assessment of joint deployment plans (Article 14)


The annual assessment by the Agency of each joint deployment plan, and the transmission of such assessments to the Commission, is a necessary element of evaluation.

27.

Notification of means of control and inspection (Article 15)


The notification of available means of control and inspection to the Agency provides a key element of the basic information that the Agency will require in order to draw up joint deployment plans.

28.

Fisheries that are not subject to control and inspection programmes (Article 16)


Where Member States have agreed between them to coordinate their monitoring, control, inspection and surveillance activities in certain areas or fisheries, the Agency may provide assistance if so requested.

29.

Information network (Article 17)


This article provides for the connection of the Agency to Community and international networks for exchange of information in accordance with Community legislation.

30.

Detailed rules (Article 18)


This Article permits the making of detailed rules by the Commission regarding operational coordination.

31.

Legal status and principal office (Article 19)


This Article deals with the legal status of the Agency and its location.

32.

Staff (Article 20)


This Article contains the general rules concerning the staff of the Agency. The Agency will recruit temporary staff (of which some on secondment from the Commission) and contractual agents through Community procedures (European Personal Selection Office).

33.

Privileges and immunities (Article 21)


This Article deals with the privileges and immunities conferred on the Agency and its staff.

34.

Liability (Article 22)


This Article stipulates the liability of the Agency.

35.

Languages (Article 23)


This Article is concerned with the languages of the Agency.

36.

Creation and powers of the Administrative Board (Article 24)


This Article deals with the Administrative Board of the Agency. The Work Programme will be an important instrument for the management of the Agency. The Agency should match its priorities and in particular Community priorities in several areas with its human resources. The internal organisation and the allocation of staff to tasks should be done in transparent manner and ensure in particular balance between areas concerned.

37.

Composition of the Administrative Board (Article 25)


This Article describes the composition of the Administrative Board of the Agency. As regards the Member States, only those which have fishing vessels that engage in marine fisheries are entitled to appoint a representative. Since the Agency coordinates activities carried out by inspection craft operated by national competent authorities which may have duties beyond the fisheries field it is important that all Member States concerned are represented in the Board. The Commission is entitled to appoint 4 representatives as well as nominates 4 representatives of the fishing industry.

38.

Chairmanship of the Administrative Board (Article 26)


This Article deals with the chairmanship of the Administrative Board of the Agency. Given that the Agency will have responsibilities regarding regional fisheries organisations and third countries it is appropriate that the Chairperson should be elected from among the Commission representatives on the Administrative Board. More specifically, the Chairperson should represent the interests of the Community as a whole rather than a national interest.

39.

Meetings (Article 27)


This Article contains provisions on the meetings of the Administrative Board of the Agency.

40.

Voting (Article 28)


This Article contains provisions on voting in the Administrative Board of the Agency. Representatives of the Member States shall hold each one vote whilst the Commission members hold jointly 10 votes.

41.

Declaration of interests (Article 29)


This Article applies to the industry representatives on the Administrative Board.

42.

Duties and powers of the Executive Director (Article 30)


This Article describes the functions and powers of the Executive Director of the Agency.

43.

Appointment of the Executive Director (Article 31)


This Article addresses the appointment of the Executive Director of the Agency. The Commission will make a short list of suitable candidates from which the Administrative Board of the Agency appoints the Director.

44.

Transparency and communication (Article 32)


This Article deals with the transparency of the Agency and the rules applicable to its communication.

45.

Confidentiality (Article 33)


This Article imposes a duty of confidentiality on the members of the Administrative Board, the Executive Director and the staff of the Agency. Confidentiality will apply to information concerning fishing activities of individual vessels (VMS).

46.

Commission access to information (Article 34)


This Article requires the Agency to fully cooperate with the Commission regarding the provision of information that it holds.

47.

Budget (Article 35)


This Article deals with the budget of the Agency and is consistent with the existing legislation (see footnotes 6 and 7).

48.

Implementation and control of the budget (Article 36)


This Article is concerned with the implementation and control of the budget of the Agency and is based on the new financial regulation.

49.

Combating fraud (Article 37)


This Article provides for combating fraud.

50.

Financial provisions (Article 38)


This Article deals with the adoption and content of the Agency's financial rules.

51.

Evaluation (Agency 39)


This Article contains an evaluation clause according to which the Agency shall submit itself to an independent external evaluation within five years form the date on which it takes up its responsibilities, and every five years thereafter.

52.

Start of the Agency's activities (Article 40)


This Article requires the commencement of the operation of the Agency within twelve months of the entry into force of the Regulation.

53.

Amendment (Article 41)


This Article amends Article 34c of Regulation (EEC) N° 2847/93.

54.

Entry into force (Article 42)


This Article addresses the issue of the date of entry into force of the Regulation.