Report | October 6, 2021
Was Article 11 of the CFP doomed to fail?
- The EU has set out strong objectives for marine protection in its waters. This began with the adoption of the Habitats Directive in 1992 and has been continually re-emphasised in later policy outlines, the latest being the 2030 Biodiversity Strategy which sets a target of protecting 30% of the marine habitat with 10% being strictly protected.
- When it comes to setting fisheries measures in areas outside the 12 nautical miles zone, where multiple countries have fishing interests, measures have been developed for very few Marine Protected Areas (MPAs). Most of the areas that have been designated as MPAs have no measures implemented.
- In the CFP reform of 2013, Article 11 was introduced which sets out the process for Member States to adopt a Joint Recommendation for fisheries measures within MPAs in a regional set-up, which is then transposed into a Delegated Act by the Commission.
- In the eight years since its adoption only three delegated acts related to Article 11 have come into force. All the areas concerned, found within existing MPAs, are small in size and only have two Member States (the initiating Member State and one other) with significant fishing interests in the designated area.
- Even though the CFP allows the Commission to take short-term emergency measures within Natura 2000 sites when there is an urgent conservation need and no measures are taken by Member States, there are no cases of this happening.
- This report reviews the challenges faced in implementing Article 11 through specific case studies and though interviews with stakeholders (from policy, the fishing industry, and NGOs) to pinpoint where improvements can be made.
- We recommend focusing on three distinct areas of improvement: clarity on process & timelines, arbitration & conflict resolution, and transparency & accountability. All three areas require improvements at Member State, regional and Commission level.
- Clarity on process & timelines: the legal text in the CFP leaves room for interpretation on the roles and responsibilities of the different parties, which can be used to stall or derail the process. The initial phase in which the initiating Member State drafts a basic document to share with the regional group has no timeline or formal end point and neither does the deliberation phase in the regional group; information provided needs to be ‘sufficient’ without a definition of what constitutes sufficient information.
- Clarity on process & timelines: the responsibility for development of measures in MPAs is shared between environment and fisheries departments, which tend to operate very differently. Fisheries departments are focused on sustainable extraction of marine resources with their environmental counterparts working to protect (certain elements) of the marine ecosystem. As Article 11 is within the realm of the CFP but the outcomes need to adhere to the EU Nature Directives and the Marine Strategy Framework Directive there is a clear mismatch in how to manage these sites.
- Arbitration & conflict resolution: if parties cannot agree on a joint way forward the whole process can become blocked with no way to move ahead. There is no mechanism to have parties take ownership of the conservation needs. Objectives are often watered down to appease Member States or stakeholders (at a national level) with no way to prevent that from happening if the initiating Member State is not in a capacity to invest political capital in the outcome of the process.
- Arbitration & conflict resolution: a legal interpretation of the relationship between the CFP and the Nature Directives has never been performed. It is unclear how the environmental goals are embedded in the CFP and how the environmental and fisheries legislation are aligned. As the EU legislators are hesitant to take steps in this, the route through the European Court of Justice is a good option to create jurisprudence.
- Arbitration & conflict resolution: the timing of the scientific advice from STECF is late in the process, by which time conflicts may have occurred. As it is not the role of science to solve these conflicts, the process could be strengthened by including a scientific check at an early stage of the Joint Recommendation to review if the proposal meets the environmental objectives, and then suggest improvements and clarifications which can be accommodated in the Joint Recommendation within the agreed time frame.
- Transparency & accountability: the process has very few checks and balances to allow scrutiny of the decision being made. It is left up to the discretion of the initiating Member State to consult with stakeholders at a national level. Regional groups are, at best, only partly open to observers. Advisory Councils have to be consulted but their advice can be put aside with no explanation and the Commission only provides minimal information once it has received the Joint Recommendation.
- We conclude that the current legislative and policy framework as expressed in Article 11 has the potential to reach the EU’s environmental objectives, but that the implementation can be improved by better understanding of the environmental goals embedded in the CFP, in order to align the environmental and fisheries legislation. Moreover, it is essential to create clarity on the roles and responsibilities of all actors in the process and to improve transparency in order to ensure a collective ownership for a successful outcome.
- In future, the legislator, in particular the Commission, can utilise the upcoming opportunities, for example the revision of Multiannual Plans, as well as the further roll out of the Biodiversity Strategy in the form of the EU Action Plan to conserve fisheries resources and protect marine ecosystems or, at a later date, an EU restoration law. By using these political opportunities to set hard targets for implementation and put clear restrictions on practices allowed within MPAs, a better balance can be found among the different interests at play. In this way the implementation deadlock, that many of these areas are in now, can be broken.