COUNCIL OFBrussels, 29 April 2009 (08.05)
THE EUROPEAN UNIONPUBLIC
7337/09 ADD 18
NOTE from :
to : General Secretariat of the Council
No. Cion prop. : 15694/08 PECHE 312 COM(2008) 721 final Subject :
Proposal for a Council Regulation establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy
Delegations will find attached written comments received from the French delegation on the
NOTE TO THE GENERAL SECRETARIAT OF THE COUNCIL OF THE EUROPEAN UNION
DIRECTORATE-GENERAL B3 FISHERIES
Subject: Draft Council Regulation establishing a Community control system for
ensuring compliance with the rules of the Common Fisheries Policy
Annex: Article-by-article review of the draft Council Regulation
I. Aims of the draft Regulation for the French delegation
The draft Regulation should aim to make the rules on monitoring compliance with common
fisheries policy rules and on controlling illegal, unreported and unregulated fishing clearer,
fairer and more effective in order to ensure the sustainable and responsible exploitation of
fisheries resources and a viable fisheries sector by reducing various burdens. The Regulation
should also improve the traceability of fisheries products (poor traceability distorts
competition between fishery sector operators) and ensure that consumers are properly
These aims can be achieved by adopting a new approach in fisheries control procedures which
introduces standard controls throughout the sector, establishing monitoring strategies and
II. Impact of the draft Regulation on France's national control system
Member States are required to adopt appropriate measures, to allocate adequate resources and to set
up the necessary structures for ensuring that the control measures are implemented; this will entail
major adjustment and upgrading of France's national control system, in terms of both its overall
organisation and the human, financial and technical resources allocated to these activities.
France's internal rules, more specifically its system of infringements and penalties, and the powers
vested in control officials will need to be radically overhauled, and in particular:
-Law No 83-582 of 5 July 1983, as amended, on rules on the seizure of property and
supplementing the list of officers authorised to report infringements in the maritime fisheries
sector and its related Decree No 84-846 of 12 September 1984, as amended;
-Decree-Law of 9 January 1852, as amended, on maritime fishing and its implementing
Decree No 90-94 of 25 January 1990, as amended;
-Decree No 89-273 of 26 April 1989 on the first placing on the market of maritime fishery
products and the rules on the communication of statistical data;
-Decree No 90-618 of 11 July 1990, as amended, on recreational sea fishing;
-Decree No 2001-426 of 11 May 2001 regulating professional fishing from the seashore.
The process of revising these instruments is lengthy and complex and unlikely to be completed
III. Summary of the French position: main points
France, which supports the Commission's approach and endorses the general principles and
objectives of the reform, wishes to highlight the following points:
-the sheer scale of the reform raises questions as to whether some of the proposed provisions are
realistic and as to the human and financial implications of adopting provisions which will impose
more obligations on the Member States, requiring resources to be deployed and results to be
obtained against a general background of budgetary constraint. The reform should not give rise to a
system which is oversized and expensive in relation to its envisaged aims and outcomes;
-the implications for fisheries operators must also be considered, given that their resource is
becoming ever less accessible and the industry is undergoing radical restructuring.
Points of substantive agreement, with reservations regarding the details of the provisions
(following the order of the articles)
-Extension of the use of new monitoring technologies (Articles 9 to 13 and Article 15):
the application to vessels between 10 and 15 m must however be assessed in terms of
cost/efficiency/benefit and the exemptions must be the prerogative of the flag State.
Given the cost of radar satellite vessel detection, this system may be used where appropriate
-Standardised inspection procedures and enhanced powers vested in Community
inspectors (Articles 65 to 73): these aspects represent a significant step in ensuring
effective inspections and harmonised practice. However, to ensure that the detection and
infringement procedures are legally secure and that they are recognised and enforced,
inspectors authorised to act outside national territory must have a common standard
qualification. The possibility that Commission or Agency officials may be authorised to
act as Community inspectors conflicts with the principles of their remit and tasks, and the
powers of Member States' inspectors and Commission or Agency inspectors must
continue to be kept separate.
-Introduction of a system of administrative penalties and a penalty points system
(Articles 81 to 85): to be effective a control system depends on a system of proportionate,
deterrent penalties. However, setting a minimum level for an administrative fine is at
odds with the general principles of French law and is therefore unacceptable; the same
is true of the automatic application of penalty points and the period during which
fishing licences are suspended, both of which are contrary to the French legal principle of
individualised sanctions. Consideration of the value of the prejudice caused to the
marine environment as a factor for determining the amount of the penalty should not
be included in a Regulation covering the control of fishery resources.
-Provisions on the closure of fisheries (Articles 26 to 28) and penalties applicable to
Points on which France differs (following the order of the articles)
-The provisions on the management of resources are out of place in a draft control
Regulation, as are those on the technical measures covered by draft Regulations under
discussion in other fora (e.g. the provisions on fishing rights (Articles 6 and 7) and technical
measures (Articles 37 to 40 and 43 to 46)).
The following provisions should be withdrawn from the draft Regulation or amended:
-Concept of "Marine Protected Area" [aire marine protťgťe] (definition in Article 4,
point (10) and Articles 39 and 40): this is not the definition applied by France, which does
not regard marine protected areas as excluding the pursuit of other objectives, such as
controlled fisheries. Directive 2008/56/EC [establishing a framework for Community action
in the field of marine environmental policy] does not as it happens define a marine protected
area, whereas Article 13(5) of that Directive clearly shows that the Council has already held
that such areas [zones marines protťgťes] are not areas from which all human activity is
excluded and thus in particular that fishing may take place in them. "Marine Protected
Area" should be replaced by "Integral Marine Reserve" or by "Closed Area" if the
Commission intends to refer to a sector in which fishing is prohibited.
-Tougher requirements regarding the declaration of fishing activities and landing and
Some provisions (prior notification of landing/transhipment, authorisation to
land/tranship, designated ports, separate stowage, obligatory weighing, deadlines for
transmitting data, data to be transmitted) need to be adjusted, with provision being
made for exemptions to take account of the sensitivity of the fishery, the system of forward
bases, the technical and practical constraints on the various fleets, and the costs of applying
such measures. To apply them systematically, as the Commission proposes, is not realistic.
-Action to be taken on documented information submitted by private citizens
(Article 62(3)): this provision could well release a flood of potentially irrelevant
information, which would nevertheless require a Member State's departments to undertake
preliminary investigations, burdening its control authorities, and also lead to pressure to
deploy resources with the related obligation to produce results in view of the possible media
impact. Without refusing to process information of this type, a Member State's
departments should be able to exercise discretion in handling it.
-Observers' status as fisheries' control auxiliaries (Article 63(1) and (4)): combining tasks
of scientific observation with surveillance tasks gives observers an ambivalent status and is
detrimental to the scientific objectives; moreover, the conditions under which observers are
authorised and exercise their powers are not clearly or adequately specified. This point
should be withdrawn.
-Suspension and cancellation of Community financial assistance (Article 5(6) and
Article 95). France disagrees with this point: this is a Structural Fund which covers sectors
other than the fishing fleet and which also contributes to re-establishing the balance between
fleet capacity and the available resource.
-Emergency measures available to the Commission (Article 101): the 18 months' period is
not compatible with the idea of an emergency. The current arrangements should remain in
-Extension of the remit of the Community Fisheries Control Agency to cover
inspections (Article 112): to confer on the Agency inspection tasks in the Member
States, such as those carried out by the Commission's inspectors and with all that this
entails, would undermine the necessary cooperation between the Agency and the Member
States, which currently takes place in a climate of trust and transparency. This point should
Additional point proposed
-Requirement that Member States set up national audit systems. This requirement
could be inserted after Article 87 of Title IX on control programmes.
Article-by-article comments on France's position on the proposal for a Council Regulation
establishing a Community control system for ensuring compliance with the rules of the
Common Fisheries Policy
1.Title I Articles 1 to 4: General provisions
Articles 1 to 3
The subject matter, scope and definitions require some editorial clarification, in particular an
explicit indication that the Regulation applies only to marine waters and marine aquaculture.
Additions to the definitions are required; definitions must be consistent with those in other
Community regulations on maritime fisheries, i.e.:
-Point (6): the definition of "official" refers only to the concept of inspection, which is more
restrictive than the concept of control.
-Point (10): France is against "Marine Protected Area" being defined as "any area which has
been reserved ... to protect the environment", understood as an integral protection area in
which fishing is prohibited. There is no definition of marine protected areas in
Directive 2008/56/EC. However, Article 13(5) of that Directive clearly shows that the
Council has already held that "Marine Protected Areas" are not areas from which all human
activity is excluded and thus in particular that fishing may take place in them. The definition
-Point (14): the definition of "risk management" does not correspond to the concept of risk
which implies the idea of a hierarchy between situations and data.
-Point (16): very general definition of "lot", which then raises problems of interpretation but
above all of comprehensibility. In practice, this is because of the technical or legal issues
relating to the splitting of lots at the various processing stages. The definition of a "lot" is
different from that commonly recognised, particularly for health monitoring purposes. The
definition states that a lot is a quantity of fishery products [...] which may have come from
the same fishing grounds; from a health monitoring point of view, a lot comes from a single
fishing ground. France stresses that these definitions should be harmonised to make the
regulations more comprehensible to the whole industry.
-Point (17): the definition of "processing" includes cleaning and freezing, which is too
broad a concept. This definition differs from the one in the hygiene package (Regulation
No 852/2004), which states that processing means "any action that substantially alters the
initial product, including heating, smoking, curing, maturing, drying, marinating, extraction,
extrusion or a combination of those processes". For fisheries products, Annex I of the
Regulation laying down specific hygiene rules (Regulation No 853/2004) defines "prepared
fishery products" as "unprocessed fishery products that have undergone an operation affecting
their anatomical wholeness, such as gutting, heading, slicing, filleting, and chopping." France
asks that the existing definitions should be taken over, in conjunction with the reading of
2.Title II Article 5: General principles
A link has to be made with Regulation No 1005/2008 on combating illegal fishing, particularly as
regards control outside Community waters.
While the Commission may be provided with appropriate resources other than the long and
complex infringement procedure to penalise in a proportionate manner non-compliance with the
control obligations by the Member States, the procedure must be clearly defined at Council level
alone and there must be strict rules on definition of the decision-making criteria, the amount and
suspension period, and the deadline for achieving compliance.
It would be more consistent for this point concerning penalties to appear in Title XI "Measures to
ensure compliance by Member States [of] with common fisheries policy objectives", Chapter 1
"Financial Measures", in which Article 95 appears. On the other hand, France refuses its
application at European Fisheries Fund level.
3.Title III Articles 6 to 13: General conditions for access to waters and resources
Provisions on general conditions for access to waters and resources should not appear in a
Regulation which relates to the control and not to the management of resources. This Title should
Articles 6 and 7
It cannot be denied that experience acquired in using some satellite-based monitoring systems with
which the fishing fleet is already equipped has shown that such equipment facilitates and optimises
controls, and France is favourable to them in principle: however, their extension to non-industrial
fleets of vessels of 15 m or less in length must be measured against a cost/effectiveness assessment
based on the vulnerability of the fisheries and the size of the vessels (small non-industrial vessels).
Derogations must remain a matter for the flag State and must not be decided on by the Management
Committee for Fisheries and Aquaculture.
The use and the monitoring of the accuracy of data from the Automatic Identification System must
not be imposed, since this system does not relate to fisheries control but rather to the monitoring of
Without entirely excluding the use of radar satellite vessel detection, its use should be limited, not
systematic. The wording "where appropriate" should be inserted. Care must be taken to limit the
cost of this system, which may be exorbitant, and for which the cost/effectiveness assessment
differs widely between surveillance areas. It would be helpful to provide for the sharing and
exchange of some resources and data between the Member States and via the Community Fisheries
In general, the provisions on the electronic transmission of data must be linked to the provisions
already laid down by Council Regulation (EC) No 1966/2006 of 21 December 2006 on electronic
recording and reporting of fishing activities and on means of remote sensing, and by Commission
Regulation No 1077/2008 of 3 November 2008. This relates in particular to Articles 15, 17, 19,
21 and 54.
Determining the threshold for recording information in the logbook and setting the margin of
tolerance for recording TAC and quota catches kept on board, which is a very sensitive point for
professional fishermen, must be linked (operations). The Commission's proposals (15 kg and 5 %)
are not acceptable and are unrealistic, since they increase the workload of masters excessively and
only allow a very low margin, even when the conditions required for a very precise assessment may
not always be met. A harmonised margin of tolerance of 10 % for all TAC and quota species,
maintaining the requirement to record catches over 50 kg, would be an acceptable compromise.
Consideration must also be given to setting one threshold for recording catches and applying a
margin of tolerance on the basis of a different threshold, to relieve the very constraining effect of
the margin for small catch quantities, must be considered.
Our comments and position regarding the application of Article 9 also apply to Article 15.
Notification of arrival in a port for a purpose other than landing or transhipment is of little interest
and unnecessarily increases the workload of the master and the authorities, as well as the cost of
transmissions. This also applies to the information on "fishing authorisation" (the information is
available elsewhere), "dates of the fishing trip" and "zero catches".
The two-hour deadline for transmission of the landing declaration by electronic means is not
realistic as it is not appropriate for fisheries activities; a 24-hour deadline is an acceptable
The transmission of data about transport presumes electronic recording, which is not obligatory.
To ensure prompt entry into force, the possibility of urgent publication in the OJ of the closure of
fisheries by the Member States should be provided for.
The lack of precision about the factors determining the basis for a Commission decision to close a
fishery is something to which we object. The Commission must be in a position to inform the
Member State concerned of the data and the sources which enabled it to make its choice of the date
The principle of compensation should be maintained; however, the detailed rules call for discussion,
in particular the idea that prejudice suffered by a Member State following a decision by the
Commission to close a fishery should be compensated for by other Member States. It may in fact
be that no Member State has overfished and there will consequently be no available compensation.
Transhipment cannot be defined as the transfer of catches from a vessel to a lorry; this conflicts
with definition in Article 4, point 12, which refers only to transhipment from one vessel to another.
Catches should not have to be weighed only in an auction centre or other body authorised by
Member States: it should also be possible to weigh on board or upon landing, using approved
There is a translation error in the French version: "threshold" has been translated as "plafond"
The simultaneous application of the four criteria proposed for determining a designated port
considerably reduces the number of landing points and ports already designated, and is
incompatible with the geographical reality of fishing activities, the fact that they may involve
Articles 37 and 38
These Articles should be examined in the light of certain provisions of the draft Council Regulation
on technical measures, which has already been discussed, and the related regional Regulations
currently in the form of non-papers, in order to ensure the consistency of, for example, Article 37 on
fishing gear, a measure connected with the "one net" measure, to which France has already stated its
opposition (Article 5 of the draft technical measures Regulation), and Article 38 on catch
composition (provision in the draft regional Regulations but France wants it included in the Council
Regulation). These provisions have no place in a Regulation which deals with control, not technical
Articles 39 and 40
Once again, these Articles assume that no fishing activity is allowed in a "Marine Protected Area".
If the aim is to monitor a zone within a marine protected area closed to all fishing activity, it should
be referred to explicitly as an "Integral Marine Reserve".
The alarm alerting the master of the vessel and the automatic change in the frequency of data
transmissions will necessitate technical changes to be made to the equipment on board vessels and
at the fisheries monitoring centre. Apart from the fact that it is not defined, real-time transmission
might be technically difficult to achieve, will contribute nothing of use for monitoring purposes and
will generate major expenditure for vessels and for fisheries monitoring centres. Transmission
every 15 or 30 minutes is broadly sufficient to ensure that a vessel is not fishing in the closed area.
The transit report is pointless for vessels fitted with a positioning (VMS or AIS) and electronic data
transmission system. It is also unsuitable for small fleets and for certain zones that may include
several "Integral Marine Reserves"; it will represent an excessive burden for the master of the
vessel and the authorities and will generate transmission costs for the vessel. It must go.
Finally, these provisions should apply only to zones defined in a Council Regulation or Decision.
The provisions of this Article will be difficult to monitor.
"Discard" is not defined.
The compulsory recording of discards in the logbook is acceptable, but in view of the work
involved for masters of vessels, and the work involved recording catches, records should start
at 50 kg, with a margin of tolerance. For the sake of consistency, this provision should be included
in Article 14 on the logbook.
France is against giving observers a general role as fishing-activity monitoring auxiliaries on
vessels, involving the use of information collected for control purposes (see comments on
France is in favour of the idea of introducing some rules for recreational fisheries. However, it is
not made clear that catches from recreational fishing are not allowed to be sold and are intended
solely for family consumption; the question also arises whether this covers sport fishing as well.
The requirement of an authorisation is an excessive administrative burden given the potentially
massive numbers involved, and the criteria for authorisation are not specified. A declaration system
would be more flexible and more appropriate to the activity.
Counting catches against the quotas of the flag Member State is difficult in the absence of any
official reference for levels of recreational fishing activity, and France is against it.
Lastly, marketing catches for philanthropic purposes the term is not defined is to be
discouraged, given certain questionable practices that have been observed.
5.Title V Articles 48 to 60: Monitoring of marketing
The definition of "lot" in Article 4, point 16, differs from that used for health monitoring and should
therefore be harmonised.
The live weight in kilograms ceases to be relevant once fish has been processed.
Apart from the fact that it might lead to confusion, to the detriment of the notion of product quality
and freshness, it would be unrealistic, in view of the constraints of on-board stowage and sales at
fish auctions, to require the date of catching or harvesting to be given, and it would also be costly.
It would be difficult to give a date for mixed lots. The requirement must therefore be removed.
The date of landing or of sale would be more acceptable.
It would be difficult to give the name of the vessel in the case of mixed lots.
Operators will not necessarily know what type of gear was used and such information is not really
useful information. This requirement should therefore be removed.
The codified regulatory reference to the catch area giving the sub-area, sub-division or statistic
rectangle will not be comprehensible or useful to the consumer, unless it is given in the form of a
clearer geographical identification defined at individual Member State level.
Articles 5 and 8 of Regulation (EC) No 2065/2001 refer only to the 12 FAO sub-areas.
The basis for reliable traceability and statistical monitoring must be that all catch quantities being
marketed for the first time must be weighed on approved scales before the first sale (on board or on
landing, unless there is some specific reason why they cannot), then registered at an auction centre
or, where there is no such body (in the case of France, on the Mediterranean and overseas coasts
and in estuary fisheries) declared to the authorities online (e-declaration), with a possible exemption
for small undertakings which could simply submit documents, and that all catches must be sold to a
person authorised by the Member State.
This Article is confusing. It needs to be made clear whether it refers to the initial sorting (or initial
processing), which may take place on board before anything is weighed, or the second sorting
(or second processing), which may take place before the first sale. If it is the former, the provision
is not applicable and the word "sorted" should be deleted, as sorting (and to a lesser extent
processing) is very often carried out on board before landing (in some cases on-board sorting is
Furthermore, as certain species can lose a considerable amount of their water content, weighing on
board or on landing or at the first sale after transport may produce different weights, with the
second weighing giving a lower weight than the first. But if the first weighing is carried out on
board, that must be the official weight for the purposes of monitoring and completing any required
In the French version the word "fonctionnaire" should be replaced by "agent" ("official") as defined
in Article 4, point 6.
It should also be made clear whether these provisions apply to both fresh and frozen fish.
The two-hour period for submission is unacceptable. It takes no account of the human element.
A minimum of 24 hours is more realistic. Also, Article 54(3) is unclear.
The reference to the Community fleet register number in the sales note is inappropriate. This
information is not directly available to the buyer, nor is it even known to the seller. The reference
should be removed.
It is hard to see how the buyer can be made responsible for the accuracy of information which he is
unable to verify or ascertain, such as the geographical origin of each species.
In the case of direct sales to consumers the system should allow a general exemption concerning the
registration of buyers (Article 52) and the sales note.
It would be difficult to submit the transport document within 24 hours because this period does not
enable vehicles to be checked when transits are fewer. There should be pre-notification, including
for transit-only States.
The reference to the Community fleet register number in the take-over declaration and the transport
document is inappropriate. This information is not directly available to the transporter, nor is it
even known to the seller. The reference should be removed.
It is hard to see how the person who draws up the take-over declaration and the transporter can be
made responsible for the accuracy of information which they are unable to verify or ascertain, such
as name of vessel, date of landing, geographical origin or quantity and weight of each species, since
the fish can be landed without being sorted.
The exemption from the 20 km requirement is too restrictive given the actual geographical situation
of some Member States and the system of advanced bases. The comments on Article 53 apply to
this Article as well.
6.Title VI Articles 61 to 64: Sightings at sea and observers
Provision is made for a new measure whereby documented information transmitted by private
persons (individual citizens, civil-society organisations, including environmental organisations, and
trade representatives) must undergo examination.
This could well result in a flood of information that might not be relevant but had to undergo
preliminary investigation by government departments, thus overloading the inspection services.
There could also be pressure by way of a best-effort obligation which might lead to an obligation to
produce results in view of the possible media impact. While such information should not be
rejected, Member States must be allowed to make a risk analysis to decide for themselves whether
to accept and act on it. This point should either be amended or withdrawn.
Observers are to be given the task of monitoring a vessel's compliance with the rules of the
Common Fisheries Policy. This turns them into fisheries' control auxiliaries but without the
conditions under which they are authorised and exercise their powers being clearly or adequately
specified, even though a certain legal force is accorded to the observations which they have to
present in the form of a surveillance report (which ought to be reclassified as an observation report).
France is not in favour of a systematic coupling of scientific observations and surveillance tasks.
The status of on-board observer does not provide sufficient guarantees in terms of impartiality and
In any event, the powers given to observers in the context of observation programmes should be
decided case-by-case by the Council. This Article should be either adjusted or deleted.
Surveillance reports drawn up by foreign authorised persons will be equally admissible for
establishing proceedings. Cooperation to deal with illegal fishing makes this type of provision
indispensable; nonetheless, it presupposes a knowledge of authorisations and qualifications.
To ensure the legal certainty of the procedures and facilitate mutual recognition, it is first of all
necessary to define the status of inspector at Community level, with a common standard of
qualifications. The term "persons authorised" could be replaced by "official" as defined in
Article 4, point 6.
The admissibility of proceedings cannot be presumed since the judicial or administrative authority
has a certain amount of discretion. It would also be desirable to take over the definition in
Article 28(5) of Regulation (EC) No 2371/2002. This Article should be linked up with Article 68 as
having an identical purpose regarding the admissibility of inspection reports.
7.Title VII Articles 65 to 80: Inspection procedures
Title VII makes reference to the conduct of inspections but does not deal with prosecution as
mentioned in the heading of Article 77. The reference is therefore inappropriate.
While acceptable in terms of the principle of an adversarial process, the requirement that the
inspection report be signed by the vessel's operator or master (a reference to the master needs to be
added here) and that a copy be handed over could run counter to the dematerialisation of reports
pursued by France since 2007 subject to extension of the practice of electronic signature and copy.
As regards the admissibility of inspection reports by foreign inspectors, see our comments on
In the French text, the word "fonctionnaire" should be replaced by "agent" ("official") as defined in
Article 4, point 6.
The inspection and surveillance reports that have to be entered in the database to ensure an effective
exchange of information between Member States and Commission ought to be subject to a common
It is proposed that staff of the Commission or the Agency should be given powers of inspection.
This is a new measure, to be linked to Titles X and XIII concerning the extension of the mandate
The Member State concerned can refuse authorisation for one reason only (compelling reasons of
national security), which renders virtually meaningless the idea of authorisation. Since inspections
in territorial waters are a matter of sovereignty and in view of the national legislation in force,
authorisation should remain at the discretion of the French authorities, who should not be required
to base a refusal on a compelling reason of national security.
See our comments on Article 70.
The word "immediately" should be replaced by "without delay".
For the concept of serious infringement, reference is made to the definitions in Regulation (EC)
No 1005/2008 on preventing illegal fishing (Articles 3 and 42); however, a serious infringement is
also defined as a misrecording of more than 500 kg or 10 %. That definition may be regarded as
redundant because this type of infringement is covered by Regulation (EC) No 1005/2008
(Article 3(b)), albeit with a more general definition. The figure of 10 % is much too low and France
is opposed to it. It should be reviewed together with the margin of tolerance ultimately adopted for
Article 14. This is all the more necessary as a serious infringement results in the rerouting of the
The procedure for transfer of prosecution should be defined and published so that challenges can be
avoided. A link should be established to the chapter on mutual assistance in the draft Regulation
implementing the Council Regulation on IUU fishing.
In line with our comments on Article 70 in particular, a provision requiring the prosecution of
infringements detected by Community inspectors on the territory and in the territorial waters of
Member States is unacceptable. The prosecution of infringements cannot be an automatic step; the
administrative and judicial authorities still also have to exercise their judgement.
France is opposed to the adoption of corrective measures which provide for quantities to be set
against the national quota of the Member State of landing/transhipment and which penalise
producers who were not responsible for the infringement. Furthermore, no procedure is described
for establishing failure on the part of the Member State or for the Member State to defend itself in
an adversarial process. Everything is referred to the Management Committee for Fisheries and
Aquaculture, which is not acceptable in view of the issues at stake.
8.Title III Articles 81 to 85: Implementation
Article 81(3) refers to serious infringements which are covered by the IUU Regulation. The
reference to "without delay" in paragraph 4 is excessive. A more appropriate formulation would be
"as soon as possible and in any event within 2 months". An obligation to provide information on
the penalty or the operative part of the judgment delivered would be more relevant than information
about the initiation of proceedings of unknown outcome, although this would also mean not setting
a time-limit given the heavy workload of the courts and the fact that judgments can take over a year
Article 82 and 83
Sanctions for serious infringements come under the IUU Regulation and should therefore be
covered by Regulation (EC) No 1005/2008 alone. France is opposed to setting a minimum
administrative fine (paragraphs 2 and 3), which is in conflict with a general principle of French law,
and to taking into account the value of the prejudice caused to the marine environment when fixing
the amount of the fine (paragraph 4), a requirement which has no place in a Regulation dealing with
the control of fishery resources. By contrast, consideration should be given to the type, gravity,
duration and repeated nature of the infringement when setting the amount of the administrative
France supports the principle of penalty points but the proposed system needs reworking. The
number of points per infringement should not be set by each Member State a source of distortions
leading to unfair treatment but rather defined in the Regulation. In addition to being contrary to
Apart from the technical and legal difficulties to be overcome under French in establishing and
updating a national database of infringements (i.e. the problem of the legality of the register
vis-ŗ-vis the French Data Protection Authority), great care must be taken regarding the use, access
and confidentiality of the data collected under this control system and resulting in exchanges with
other Member States. Thus, the length of time during which data are to be kept and the procedures
(i.e. time-limits, formats, individuals involved) for transmission of data between Member States are
elements which need to be defined.
9.Title IX Articles 86 and 87: Common control and specific Community control action
There is no mention in this Title of the need to consult the Community Fisheries Control Agency or
notification of the Regional Advisory Committees, which are represented on the Agency's Advisory
Board and therefore informed of the Agency's work programme.
Considering their human and financial impact, it should not be for the Commission alone to decide
on specific Community control action programmes. The establishment of a specific control action
programme should be provided for in the Council Regulation on the fishery addressed by the
programme, or the specific control action programme should be linked to the adoption of a recovery
plan. The benchmarks should be based on risk management.
Articles 90 and 91
Commission inspectors cannot exercise the full powers of national fisheries inspectors. Under
French law, fisheries inspectors are not allowed to enter private premises without authorisation from
the public prosecutor's office. Certain powers devolved upon French fisheries inspectors (such as
arrest, searching means of transport, including commercial vehicles, and questioning persons) are
also very strictly regulated.
The Commission should not be able to interfere in the internal organisation of the Member States,
particularly the administrative organisation, including the adequacy of the staff and means made
There is no provision for Member States to comment on scheduled or autonomous verification or
inspection reports (as is currently the case), which is unacceptable.
It would be useful to spell out what is a "reasonable time limit" as referred to in Article 94(1)
11.Title XI Articles 95 to 101: Measures to ensure compliance by Member States [of] with
This procedure must be reserved for exceptional circumstances. The expression "where the
Commission has reasons to believe (...)" is too vague and gives the Commission too much leeway
for action, there is no provision for informing the Member State concerned of the evidence of its
shortcomings which have led to closure, the deadline for the Member State's reply is too short
(one month would seem reasonable) and the length of time for which the fishery is closed is not laid
down (see also comments on Articles 26 to 28).
There should be an arrangement for very low quotas (< 100 tonnes cf. Regulation (EC)
No 847/93) with a linear penalty rather than a percentage.
The possibility of deducting the share of stocks fished by a Member State without a quota from that
Member State's other stocks collectively penalises producers which were not responsible for the
infringement, and is thus inappropriate.
"Serious threat" should be defined.
The deadline for the Member State's reply (10 days) is too short in view of the possible
Observance of the respective powers of the Council, the Commission and the Parliament should be
ensured. Emergency measures which may last for 18 months are at odds with the idea of
"emergency", and do not confer all the necessary guarantees of proportionality and impartiality.
France is against this and wants the current arrangements (6 months) to remain in place.
The deadline for replies by the Commission and the Member States should be the same (15 days).
12.Title XII Articles 102 to 108: Data and information
Articles 102 and 103
To require continuous, systematic and thorough cross-checking and validation of all data is going
too far. This measure will generate a substantial volume of data which will be difficult to process
and will swamp information relevant for control purposes. It leaves no room for the risk analysis
needed to enable checks to be targeted on certain vessels, fisheries and data. Member States'
databases and validation systems must be harmonised.
Article 106 to 108
The requirement of cross-checking and validation of all data together with the setting up of an
official website involves complex and costly information systems which take a long time to install.
As in the case of Article 70, France is opposed to publication of the list of officials responsible for
inspections in view of the numbers involved in fisheries controls in France; they are attached
13.Title XIII Articles 109 to 115: Implementation
The provisions on administrative cooperation should be linked to the provisions on mutual
assistance in Regulation (EC) No 1005/2008 on preventing illegal fishing (Chapter XI).
The Agency currently assists and cooperates with Member States; it may also carry out audits.
Against that background, a climate of confidence and transparency in the working relationship
between the Agency and the Member States has been established. To assign inspection tasks such
as those practised by Commission inspectors to the Agency, with all the possible consequences,
could be detrimental to the vital cooperation between the Agency and the Member States. France is
opposed to giving the Agency inspection tasks.
14.Title XIV Article 116: Final provisions and entry into force
The provisions of the draft Regulation will have a considerable impact in legal, financial, technical
and organisational terms. In particular, national rules, specifically concerning infringements and
penalties will need to be thoroughly overhauled and changes made to the national fisheries
information system. These revisions and changes will be lengthy and complex, and will be very
difficult to achieve by 1 January 2010. France proposes that the Regulation enter into force on
1 January 2011 at the earliest.