The Landing Obligation introduced in the 2013 CFP in its article 15 (EU 2013) includes four specific exemptions: species for which fishing is prohibited, species that have high survival rates after being discarded, catches which fall under the de minimis
exemption, and catches damaged by predators. It should be noted that the interpretation of these exemptions is not always straightforward. This must be taken into account when evaluating the implementation.
2.3.1 The Flexibility Mechanisms
Species with scientific evidence of high survival rates after being discarded can have an exemption from the obligation to be landed. However, the definition of what is ‘high’ survival is unclear, while STECF (2013)
has concluded that defining a single value cannot be scientifically rationalised and therefore assessing proposed exemptions on the basis of high survival need to be considered on a case-by-case basis, taking account of the species and fisheries involved (Rihan et al., this volume).
This provision has been adopted in several fisheries since 2015. In pelagic fisheries, the application of the exemptions for survival (and the de minimis) in some fisheries have provided the flexibility that allowed the industry to formally comply with the Landing Obligation without any significant change in their operations (PELAC 2015; MEDAC 2017).
As for the inter-species quota flexibility, this instrument had not yet been used by April 2017 (Veits 2017).
2.3.2 Predator-Damaged Fish
A further exemption to the LO was introduced with the Omnibus regulation (European Union 2015a)
, where caught fish damaged by predators should be returned to sea. The reason detailed in the regulation was that such catches “can constitute a risk to humans, to pets and to other fish by virtue of pathogens and bacteria which might be transmitted by such predators”.
Nevertheless, this exemption was seen as particularly important for Baltic Sea fisheries targeting salmon, due to the increase in the predatory behaviour of seals consuming salmons caught mainly in longlines (Fitzpatrick and Nielsen 2016). This exemption has indeed been applied to salmon fisheries in the Baltic Sea. But there are no safeguards to limit this mechanism to any particular species or area.
2.3.3 Discard Plans and Minimum Sizes
18.104.22.168 Discard Plans
With the delay in the agreement of the multispecies, multiannual plans foreseen in the 2013 CFP between European institutions, and under the objective of introducing the LO progressively, several so-called discard plans were, in accordance with the CFP, adopted by the EC between 2014 and 2017 through delegated acts
. The discard plans identify the specific fisheries and species entering the LO and applicable exemptions by sea area for a period of 3 years, based on joint recommendations by regional Member States groups in consultation with the relevant Advisory Councils.
Although the discard plans were originally planned as an intermediate legislative measure to be substituted gradually by the agreed multiannual management plans in each sea basin, these are now well-established legislative procedures that continue to be adopted and amended regardless of the adoption of a corresponding multiannual plan.
22.214.171.124 Reduction of Minimum Sizes
The 2013 CFP reform introduced specific provisions which allow changing minimum landings/conservation sizes under discard plans and multiannual plans, still under the prevailing aim of ensuring the protection of juveniles of marine organisms. Catches below minimum conservation reference sizes (MCRS
, comparable, but not equivalent, to the previously known MLS) have limited use and cannot be sold for human consumption to avoid creating markets for undersized fish.
In the Baltic Sea, the size at which cod can be sold for human consumption was reduced in 2015, i.e. the MLS of 38 cm changed to a MCRS of 35 cm (EU 2014a). As expected, there was an increase in cod landings between 35 and 38 cm, which in turn caused an increase in national quota consumption, because the average fish size of Baltic cod stocks is small (MRAG 2016). At the same time, the industry reported difficulty in increasing gear selectivity due to the restrictions in the trawl gear allowed in the Baltic Sea (BSAC 2016; Valentinsson et al., this volume). This resulted in decreased selectivity by incentivizing commercialization of smaller size eastern cod, while there was no apparent reduction in discard rates (ICES 2017a). This ran counter to the idea of the legislators about the need for increasing selectivity in order to facilitate the implementation of the Landing Obligation.
Furthermore, in south western Atlantic waters, anchovy caught in CECAF area 34.1.2 and in ICES subarea 9 also had a reduction in minimum size with the introduction of the LO in 2015, from a MLS of 12 cm to a MCRS of 9 cm (EU 2014b). In the Skagerrak and Kattegat in 2016, Nephrops human consumption size was also reduced from 130 mm total length and 40 mm carapace length to 105 mm and 32 mm respectively (EU 2015b); while clam (Venus spp.) size limits in the Adriatic Sea went from 25 mm to 22 mm in 2017 (EU 2016a).
2.3.4 Additional Regulatory Mechanism: TACs and Prohibited Species
With the phased introduction of the LO between 2015 and 2019, several other regulatory mechanisms have since been used to deal with the LO.
126.96.36.199 TAC Footnotes
Historically, the TAC and quota regulations have included footnotes for some pelagic stocks TACs (e.g. horse mackerel) detailing specific percentages (2% or 5%) of catches of non-target species (e.g. boarfish, haddock, whiting and mackerel) that can be taken as bycatch in pursuit of that target TAC, without being accounted for in the respective non-target stock but on the target pelagic TAC. However, only in 2018 have the footnotes included the LO provisions on interspecies flexibility and its 9% maximum combined catch, and more importantly that the non-target stocks be within safe biological limits.
As the catches of non-target stocks are not necessarily accounted for in their respective TACs, there is a risk of overexploitation of those non-target stocks. STECF
(2013, 2017b) highlighted that there is the potential to significantly increase the mortality on non-targeted bycatch species to levels inconsistent with achieving FMSY to the extent that stock biomass could be reduced below safe biological limits. This underlines the importance of ensuring that the use of flexibility mechanisms needs to be consistent with the achievement of the Maximum Sustainable Yield (MSY) objective of the CFP.
188.8.131.52 TAC Increases
Since 2015, catches by fisheries subject to the phased introduction of the LO (with some exemptions) should have been brought to shore and landed. To accommodate the predicted increase in landed catch from such fisheries, the relevant 2015, 2016 and 2017 TACs were increased in accordance with the estimated catch that formerly would have been discarded (Borges 2018). According to the European Commission (2017a, b)
, TAC adjustments are part of the overall package of measures to implement the LO but they should nevertheless not jeopardise the FMSY objective or increase fishing mortality.
According to Borges (2018), of the 40, 64 and 88 TACs under the LO between 2015 and 2017, respectively, around 30% (the majority of which being TACs for demersal stocks) were increased in 2016–2017 to account for the LO, and of these, 10 TACs were set already above landings advice before any adjustments were made. Therefore, the author concludes that the LO is likely to have contributed to TAC increases above maximum advised catch in 2016 and particularly in 2017 to accommodate the predicted increase in landed catch, and will continue to do so until 2019 when all EU TAC regulated stocks and fisheries in the Atlantic come under the LO. In addition, the fact that these TAC increases have been allocated according to relative stability limits considerably compromises their ability to resolve choke species situations for Member States having zero quota or very low quotas of the stocks concerned.
184.108.40.206 TACs Suppression
Removing TACs from annual TAC regulations so that associated stocks are removed from the LO has been put forward by several stakeholders as a way to deal with problematic stocks, i.e. where discarding is high due to low commercial value and/or where quotas are insufficient to cover catches.
In 2017, following a request from the EC, ICES assessed the sustainability risk to the stock of dab and flounder of having no catch limits as low, as long as dab and flounder remains largely bycatch species (ICES 2017b)
. With this advice, the EC proposed, and Council agreed, to delete the combined TAC for dab and flounder in the North Sea (EC 2017a). With the suppression of the TAC, these two stocks were removed from the LO and no longer constitute a risk for premature closure of the target fisheries for plaice and sole where they are bycaught. However, they continue to be discarded in high numbers, likely to have between 10% and 30% survival after discarding and low commercial value, but continue to be caught in fisheries that no longer have the incentive to improve selectivity.
In 2018a, discussion is going on regarding several additional TAC removals (EC 2017b).
220.127.116.11 Zero TACs
Zero TACs have been used for a number of years in cases where specific stocks are considered extremely overexploited and in need of complete protection from fishing. In the TAC 2017 regulation (EU 2017), picked dogfish (spurdog, Squalus acanthias) were listed as a prohibited species. Specimens should therefore not be harmed and if caught should be released immediately, with the exception for vessels operating in a specific area where landings of up to 270 tonnes of dead picked dogfish are allowed, as long as vessels are engaged in a ‘bycatch avoidance programme
’. Furthermore, any vessel engaged in such a programme may land not more than 2 tonnes per month of picked dogfish that is dead at the moment when the fishing gear is hauled on board.
The listing of spurdog on the prohibited species list, but with a TAC, has initiated a discussion on how to deal with zero TAC species under the LO: in terms of which species should be listed as prohibited, how species are chosen to be on the list, their level of protection and the level of enforcement. NGOs’ position is that designating stocks with zero TAC advice as prohibited species will not protect them from overfishing, and provides little incentive for fishers to improve the selectivity of their fishing practices.
Listing a species on the prohibited species list means discarding can continue, and without a post-release high survival, this measure adds little to the sustainability of the stock.
2.3.5 Prohibited Species List
Both the annual TAC and the technical measures regulations include a list of species for which deliberate catching, retention on board, transshipment or landing is prohibited. Furthermore, when caught, specimens should not be harmed and should be promptly released back into the sea. Species listed in the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) Appendix I are included on the prohibited list. However, except for when listed in CITES, no other specific criteria are known for granting inclusion. As stated in the previous section about zero TACs, several species and stocks have been recently added and removed from the list when they pose a specific issue with the implementation of the LO.
According to STECF (2017c)
, the prohibited species list should ideally only be used for species which are biologically sensitive to any exploitation. Without additional management measures to improve survival, listing a species will not necessarily lead to a decrease in mortality. Furthermore, the decision to include, or remove, any species on or off the list should be made according to transparent criteria developed in a participatory process.
2.3.6 Technical Measures
Technical measures at EU level are specified through several regulations dating back to 1998, when the original technical measures regulation was adopted (Council Regulation (EC) No 850/98). This regulation specifies areas and seasons where fishing is prohibited, prohibited fishing methods, minimum landing sizes, minimum mesh sizes, among many other measures to minimise the impact of fishing on the marine environment.
In light of the reformed CFP, to simplify rules, and to allow for the introduction of new mechanisms to increase selectivity to facilitate the Landing Obligation, the EC has proposed a new framework for technical conservation measures (EC 2016a). At the time of writing, this proposal was still being discussed by the EU co-legislators.
2.3.7 Multiannual Management Plans
There have also been indirect effects of the LO in other fisheries management measures. The argument that the reality of mixed fisheries associated with the LO is incompatible with reaching MSY for all stocks simultaneously has been gaining momentum in Europe and has been addressed inter alia by Sissenwine et al. (2014) and in the EU research project MYFISH (Rindorf et al. 2017). The discussion concerns different maximum allowed MSY catch opportunities, associated with premature closure of mixed fisheries under the LO, and under- or over-utilization of some of those catch opportunities.
18.104.22.168 FMSY Upper Range
The management plans in the reformed CFP have no explicit harvest control rules (HCRs) but include FMSY ranges between which fishing opportunities can be set when pre-determined conditions are met (EC 2016b; EU 2016b).
The use of the FMSY upper range has been justified to allow for mixed fisheries to adapt to the LO. Managers argued that extra flexibility is needed to cope with the LO and avoid premature fisheries closures, while NGOs defend that the objective of “above MSY levels” enshrined in the CFP is not in line with any F value above FMSY.
Actually, the case for a flexible consideration of FMSY values is based on various arguments: from the need to address choke species problems to the multi-objective nature of the legal basis of the policy both in the EU Treaty and in international fisheries law.
This question has been resolved in the framework of the two first management plans adopted after the reform: the plans for the Baltic (EC 2016b) and the plan for demersal stocks in the North Sea (EU 2018). In both cases, the implementation of FMSY as a range was consolidated, albeit under certain conditions: that the upper limit be precautionary and that the upper part be used only when SSB is above certain thresholds.
It is too soon to evaluate the results of these conditions, whether they will provide the necessary flexibility to address choke species issues (at the level of the TAC) or whether the conditions associated will limit this flexibility to a very low number of cases.
22.214.171.124 Target and Bycatch Species
The new multiannual management plan for the North Sea basin (EU 2018) considers species: (a) that should be managed through MSY (FMSY by 2020) (b) species that may be managed by precautionary approach if MSY advice is not available and (c) other species not subject to catch limits to be managed according to the precautionary approach.
Although the Landing Obligation must apply to all stocks under TAC management, regardless of whether they are target or bycatch stocks, this classification has implications for the implementation of the policy: the classification of the stocks concerned as ‘target’ or ‘bycatch’ stocks seems to respond, at least to some extent, to their consideration as ‘choke’ species, so this would seem to be a case where the implementation of the Landing Obligation has implications for the approach towards MSY objectives.
2.3.8 Monitoring, Control and Enforcement
Monitoring and enforcement are essential parts of the implementation of the Landing Obligation. Not only the credibility of the policy depends on effective enforcement, but also its expected positive effects will only be realised if adequate monitoring takes place. For example, the improvement of data (due to reporting on everything that is removed from the sea) is an expected side benefit of the Landing Obligation, but only if effective monitoring takes place. On the other hand, the flexibility mechanisms available will only be used to the full extent if the industry feels the pressure of enforcement; otherwise there would be little incentive to use such mechanisms, which would in turn give the impression that the whole policy is inapplicable.
The move to managing catches instead of landings requires new forms of monitoring (James et al., this volume; Nuevo et al., this volume) and it is partly through this monitoring that the incentive for compliance with the LO and the motivation to avoid unwanted catches can be generated (see also Kraak and Hart, this volume).
126.96.36.199 Postponement of Serious Infringement
Failing to comply with the Landing Obligation is categorized as a serious infringement under the control regulation (Regulation (EC) No. 1224/2009; EC 2009), but a 2 year delay was agreed in the so-called Omnibus regulation in 2015. Sanctions only took effect from the January 1st, 2017 (EU 2015a); from this date MSs had to start applying the points system for illegal discarding.
Although the omnibus regulation did not delay the enforcement and control of the LO, MSs have taken a soft approach in these two first years of the introduction of the LO and have focused on information sharing and training activities rather than on LO compliance (STECF 2017a)
188.8.131.52 Reporting on the Implementation of the LO
The Omnibus regulation (EU 2015a) introduced the obligation to the EC to submit an annual report, starting in 2016 until 2020, on the implementation of the Landing Obligation. This report should be based on information given by the Member States, the Advisory Councils and other relevant sources.
The 2015, 2016 and 2017 MSs reports were reviewed and summarised by STECF (2016, 2017a, 2018)
and show a qualitative analysis of the efforts made by MSs on the different areas of the LO implementation (Rihan et al., this volume). Nevertheless, in 2017 STECF noticed that, “overall, Member States indicate that difficulties encountered so far have been minimal but several reports have highlighted that the most significant issue they face is the industries’ reluctance to implement the Landing Obligation
, despite considerable efforts to disseminate information to them. They also report that fishers seem slow to change fishing practices; and in many areas, a “business as usual” mentality seems to prevail”.
184.108.40.206 Revision of the Control Regulation
EC is proposing a revision of the Control Regulation (EC) No. 1224/2009 (EC 2009) with a draft proposal adopted in 2018 (EC 2018b). The EC has started a discussion on the elements of this review, and have stated their intention to include the use of Remote Electronic Monitoring (REM or EM, video and sensors system; James et al., this volume) to monitor the implementation of the LO on selected fisheries on a voluntary basis (EC 2017b).
In this context, and in a letter inviting inputs from Advisory Councils on its proposal for establishing Specific Control and Inspection Programmes, the EC stated that “independent research, audits of the MS control systems conducted by the Commission, and the ‘last-haul’ (Nuevo et al., this volume) and other project initiatives driven by the European Fisheries Control Agency (EFCA) alongside the MS authorities, all indicate a general lack of compliance
with the LO and that illegal and unrecorded discarding is widespread”.