Offers a guide and provides an analysis of how a public European fisheries policy should be evaluated, implemented, and reformed Quo Vadis Common Fisheries Policy?? is an essential book that provides an authoritative guide to the future challenges that face the public European fisheries policy. Written by a noted expert with 30 years' experience in fisheries policies, the book provides the information needed to analyze how a public EU policy should be evaluated, implemented, and reformed. The book examines the difficulties of implementing the new policy including the application of the objectives of the 2013 policy reform. The author explores the myriad challenges that face the new policy due to global warming, pollution, and other global drivers. The book compares the new policy with other fisheries policy, particularly with the United States fisheries policy under the Magnusson-Stevens Act. The book offers an opportunity to address and discuss the challenges and obstacles that are not currently in the public domain. This important book: * Provides a unique view from a noted expert and former policy insider * Offers a critical analysis of a public EU policy from a pro-European standpoint. * Gives a foundational resource to aid in the debate on the future of the Common Fisheries Policy * Includes topics that go beyond EU's policy and have implications for fisheries' management around the world Written for administrations and stakeholders in the European and international fishing industry, Quo Vadis Common Fisheries Policy?? addresses the challenges of EU's new fisheries policy and offers a comparison of the US fisheries policy. The book helps foster much-needed debate about this topic.
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Chapter 1: The common fisheries policy: stability or change?
Introduction: fisheries, a conservative world
Policy implementation and policy change: the challenge of implementing the 2013 reform
The reformed CFP: success or failure?
Chapter 2: The objectives of the CFP
The common fisheries policy in the Treaty
Policy objectives in other countries
The case for full exploitation of fishery resources
Is under‐exploitation a realistic scenario in the CFP?
The consequences of under‐exploitation
Are the fishery objectives of the new CFP too rigid?
Chapter 3: Implementing maximum sustainable yield
What is maximum sustainable yield?
MSY as biomass or as fishing mortality?
Fmsy as a target or as a limit?
Fmsy: a point value or a range?
The on‐going experience: MSY in multiannual management plans
Data‐poor and secondary stocks: manage them to MSY?
Chapter 4: The challenge of mixed fisheries
Mixed fisheries in the new CFP
Alternative management approaches for mixed fisheries
Can associated species in mixed fisheries be dissociated?
Chapter 5: Achieving policy objectives in Mediterranean fisheries
MSY and Mediterranean fisheries
Can MSY be achieved by 2020 for all stocks in Mediterranean fisheries?
Streamlining scientific advice
What instruments to use in Mediterranean fisheries?
The transition: a buy‐out scheme for Mediterranean fisheries
Chapter 6: The landing obligation
The CFP and the problem of discarding
What other countries do on discarding
The effects of a non‐discard policy
Choke species and the “perfect storm” of 2019
Quota swaps as a possible solution
The flexibility mechanisms
Other possible elements of flexibility
Implementing the landing obligation in practice
Is the landing obligation economically viable?
Chapter 7: Beyond single‐stock TACs: the other instruments of the CFP
Management by single‐stock TACs
Technical conservation measures
Chapter 8: Fisheries and the environment
The CFP and environmental policy
The dichotomy between fisheries management and environmental protection: the case of sharks
The effects of fishing on the environment
Preserving marine biodiversity
The ecosystem approach
A provocative idea: balanced harvest
Chapter 9: Fisheries governance and the CFP
The evolution of governance under the CFP
The new paradigm of the CFP: regionalization
The role of stakeholder bodies
Environmental NGOs and the CFP
The role of science
The role of consumers: certification systems
Governance in the reformed CFP: the example of multiannual plans
Addressing variability and uncertainty
Policy complexity: can the CFP be simplified?
Changing the paradigm: from prescriptive to collaborative governance
Chapter 10: The CFP and international fisheries
The external dimension as an essential part of the CFP
Marine Protected Areas: the miracle instrument?
The ultimate MPA: a ban on high seas fishing?
International governance and developing countries
Global fleet capacity
Fisheries enforcement at global level: fighting against illegal fishing
The improvement of RFMOs
The changes in the traditional status quo of the oceans
Chapter 11: The missing elements of the 2013 Policy reform
What the 2013 CFP reform missed
Small‐scale fisheries: no specific policy
The fisheries control system
Fleet policy: does it still have any sense today?
The EMFF: an instrument to accompany the reform?
Chapter 12: The global context: emerging challenges
The status of the world's fishery resources
Does fisheries management work?
The “perfect protein”: can the world afford to under‐exploit its fishing opportunities?
Aquaculture: the seafood of the future?
Fisheries and employment
The property of the means of production: who owns the fishing rights? Does it matter?
Climate change and fisheries management
Marine pollution: the example of micro‐plastics and marine resources
Fisheries in the information age
Chapter 13: Adapting the CFP to emerging challenges
Adapting the CFP beyond reform
Adapting the CFP to climate change
More food from the sea
The integration of fisheries policy into a wider policy context
Recreational fisheries in Europe
Chapter 14: Some ideas for the next CFP reform
A vision of the future CFP
New policy objectives
An improved governance system
The future of regionalization
Relative stability: why it should evolve
The Mediterranean: a new management paradigm
Should the CFP manage recreational fishing?
What future for the fishery structural funds?
Introducing market mechanisms in the CFP?
A specific policy for small‐scale fishing?
A reformulated discard policy
Do we need to change the basic regulation?
End User License Agreement
Table 2.1 Data on the level of consumption of EU TACs in recent years a...
Table 6.1 Fish by‐catch and fish landings by geographical area in the U...
Table 6.2 Evolution of quota swaps, in absolute value and percentage, i...
Figure 1.1 Number of words in the basic regulation of the CFP over the yea...
Figure 1.2 Ratio between current fishing mortality and target fishing mort...
Figure 1.3 Evolution over time of total biomass of exploited fish stocks i...
Figure 1.4 Evolution of number of jobs at sea and average wages in the EU ...
Figure 1.5 Evolution of the level of revenue and profits in EU fishing fle...
Figure 1.6 Evolution over time of the United States' Fish Stock Sustainabi...
Figure 2.1 Consumption of TACs by some key species in EU waters. Average f...
Figure 3.1 Different policy objectives in Article 39 TFEU around MSY.
Figure 3.2 Evolution of fishing mortality and spawning stock biomass for N...
Figure 4.1 North Sea mixed‐fisheries projections for 2016 following standa...
Figure 4.2 Fishing mortality ranges for the main demersal stocks in the No...
Figure 4.3 Evolution over time of fishing mortality relative to F
Figure 5.1 Evolution if the ratio current F/F
for Mediterranean stocks....
Figure 5.2 Evolution of total biomass of Mediterranean stocks since 2003....
Figure 5.3 Evolution of: (a) Gross value added (GVA) and (b) average wages...
Figure 5.4 Chart of the continental shelf in different areas of European s...
Figure 5.5 Location of GSA 7, area for which evaluations of sardine and an...
Figure 6.1 Ratio between the cod and hake quotas in ICES areas VI and VII ...
Figure 9.1 Conceptual relationship between data availability and assessmen...
Figure 9.2 Evolution of the spawning stock biomass of saithe in ICEAS area...
Figure 11.1 Fleet capacity by Member State as a percentage of the total na...
Figure 12.1 Time‐series of the large fish indicator (LFI) for the Greater ...
Figure 13.1 Changes of distribution of anchovy in northern European waters...
Figure 13.2 Evolution of the total production of capture fisheries and aqu...
Figure 13.3 Total apparent consumption of seafood by the EU and self‐suffi...
Table of Contents
Ernesto Penas Lado
This edition first published 2020
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The Common Fisheries Policy (CFP) established in 1983, is one of the most integrated policies of the European Union (EU), and its core purpose, the management of the biological fish stocks, is part of the five exclusive competences of the Union, according to Article 3 of the Treaty of Lisbon. In an earlier book (Penas Lado 2016) I explained the importance of this fact over and beyond the relatively minor weight of the fishing sector in the overall economy of the EU.
The policy has been reformed roughly every 10 years. The last reform in 2013 represented the most substantial policy change in the history of the CFP, notably due to the introduction of three new important policy elements: the regionalization of the policy, the introduction of a ban on discards, and the establishment of a clear‐cut objective for the management of fish stocks: fishing at maximum sustainable yield (MSY) levels by 2020.
Now the policy is at a crossroads: the cumulative effects of the implementation of the reformed CFP, with its very ambitious policy objectives together with policy strands that are difficult to conciliate, the new challenges in world fisheries (including for example climate change) and the effects of the withdrawal of the United Kingdom from the European Union, all together result in a huge challenge for the policy that calls into question old certainties and will require a considerable re‐thinking of many old practices.
The purpose of this work is to complete my own account of the historical development of the CFP with an analysis of how the policy can meet the challenges of the future, using examples of other comparable fisheries policies and taking a step forward to envision further developments for the CFP of the future. On a personal basis, and upon retirement from the European Commission, this could be my last contribution to the CFP, after close to 30 years of work in different parts of its engine room.
At the time these pages are being written, the negotiation for the withdrawal of the United Kingdom from the EU has barely started on the fishery side, and it is obvious that the outcome of such negotiation cannot be anticipated. Given the central position of the UK and the waters under its jurisdiction in the CFP, it seems safe to assume that such withdrawal, whatever the conditions agreed, will have significant consequences for the CFP. The book does not address these questions, but the ideas presented can be of relevance for the future of the CFP whatever the terms and conditions finally agreed on the departure of the United Kingdom from the EU.
The evolution of policy making, in the EU and elsewhere, is characterized by an increasing flood of information and the growing influence of social media, which tend to result in quick, immediate snapshots of superficial information, to the detriment of calm, in‐depth analysis of objective data. The modest aspiration of this book is to provide some elements for an in‐depth discussion of many of the main challenges of the policy. Of course, without any pretension of being objective: the book expresses my subjective views, and I can only invite those who will disagree to write about it and counter my arguments.
The challenges of the CFP are mainly of two sorts: one is the implementation of the 2013 reform which will combine certain new elements (landing obligation) without changing existing ones (individual catch limitations under relative stability) and is likely to produce a quagmire when all the new rules become fully applicable in the coming years. The other challenge is the adaptation of the CFP to the new challenges of the management of fish stocks around the world, and to do so in a way that will not aggravate the complexity and unwieldiness for which the policy has long been known.
A substantial element of this analysis is based on my experience in the United States, where the implementation of the fisheries policy under the Magnuson‐Stevens Act provided a privileged opportunity to compare policies, and this comparison allowed me to look into the CFP under a different light. The US policy has been considered in a recent comparison as “decidedly more successful at meeting its conservation goals than has fisheries management in the EU, as governed by the CFP” (Battista et al. 2019). The debates about the CFP have always tended to be too Eurocentric and, given the very particular nature of this policy (a unique mixture between national and international policy) the experience from abroad is often dismissed as “not applicable to the EU.” However, although “cut and paste” approaches are obviously out of question, the experience of the US in particular sheds extremely interesting light into the way the CFP is trying to achieve its goals. This vision of the CFP from outside by a CFP insider is unprecedented, and this is probably the most interesting part of this book.
This book contains a number of critical views about the CFP as it stands today, and suggests some ideas that many readers may probably consider unrealistic, premature, unacceptable or even outrageous. This only shows that “thinking outside the box” is not necessarily an exercise reserved for the young and inexperienced. In any case, the critical views are written from an unashamedly pro‐European stance. I bring a critical view of the CFP because I care about it and want it to be the policy the European project deserves. The criticism is therefore my personal view on the areas where the CFP needs improvement, and the ideas proposed are intended to be food for thought for those who will implement the policy in the years to come.
The book does not necessarily advocate radical change in the policy. Popular wisdom tells us: “if it is not broken, don't fix it.” But the problem is that perhaps certain things in the CFP may be broken or about to break, and we don't even want to know about it because we don't want to “open Pandora's box.” Moreover, things that are not clearly broken today may start breaking in the future, and good policies are those that try to anticipate change, rather than respond to crisis. This book raises questions that must be discussed. If, at the end, the policy does not change, at least it should be because the current policy is really better than the possible alternatives, and not just because of policy inertia and intellectual laziness.
Finally, some may criticize my bid for the introduction of elements of flexibility in establishing objectives and evaluating results. This may be seen as an attempt to “water down” the policy. But that would miss the point: the ongoing evidence shows that a policy with overambitious or overly rigid objectives can only provide the perfect alibi for poor implementation and enforcement. I believe that it would be in the policy's best interest to have more flexible and realistic goals and then concentrate on achieving them effectively.
Ernesto Penas Lado
Brussels, December 2018
2019 Battista, E.W. , Kelly, R.P. , Erickson, A. , and Fujita, R. (2019). Fisheries governance affecting conservation outcomes in the United States and the European Union.
2016 Penas Lado, E. (2016).
The Common Fisheries Policy. The Quest for Sustainability
, 392. Wiley‐Blackwell.
This work has largely been prepared during my stay at the University of Washington, in Seattle, USA, my alma mater for nine months under a European Commission fellowship. The University of Washington's academic excellence, open mindedness and sense of intellectual freedom provided me with the ideal conditions to learn, teach, read, discuss and write about fisheries management. In that context, the comparison between the CFP and the US fishery management system under the Magnuson‐Stevens Act was particularly illustrative. Although that system cannot necessarily be applied in the EU in many respects, the comparison between the two management regimes allowed an analysis of the CFP, with its strengths and weaknesses, under a new light.
In particular, I am indebted to a number of people who contributed to prepare these pages, or to inspire them.
Ray Hilborn was a fundamental source of help, information and inspiration. His generous support to the organization of a course‐seminar on mixed fisheries in the University of Washington, and my participation in his various activities was extremely enriching. In that course, the lectures by Clara Ulrich, Bill Karp, Kevin Stokes, Dan Holland, Bruce Turris and Jim Armstrong were of the highest interest. He also made very useful comments on key sections of the book.
Dave Fluharty informed me about US fisheries management in his excellent dedicated course and in numerous exchanges. In this course, the contribution from Penny Dalton on the implementation of the Magnuson‐Stevens Act, Andre Punt on the stock management parameters, or Anne Hollowed on the US program to address climate change, among others, were of particular value. His comments on the final manuscript were extremely valuable.
Very special thanks to Bill Karp, who contributed very substantially to this work by providing me with his experience and insight into the US management system through various presentations and exchanges. He also provided extremely useful comments both on substance and style to an earlier version and to key chapters of the final draft.
Andrea Brocato and Tess Ames organized my fellowship at the University of Washington and facilitated all the contacts and activities. Nadine Marcos contributed in finding documents and references on EU fisheries policy, in particular during my stay in Seattle.
Many colleagues provided me with their help and collaboration during my long years as an official in the European Commission. I learned so much from many of them that they also must be considered as contributors to this book, much more than they can probably imagine.
The opinions expressed in this book are those of the author and not those of the European Commission.
In Europe, as elsewhere in the world, fisheries are a traditional activity with a tendency to conservatism, and this is reflected in the Common Fisheries Policy (CFP). Traditionally, fisheries communities tend to be rather resistant to change of policy. While much of this industry is quick to adapt to better technologies that would improve their performance, they tend to be rather reticent to introduce changes in management. This in turn implies that many traditional fisheries administrations, with a deeply‐rooted tradition of paternalism, become equally resistant to change. Yet, the fishing activity is subject to an increasing number of challenges that call for policy change, or at least policy adaptation.
An observer from outside would probably think that the strong and frequent criticism of the policy by its own stakeholders would imply a strong appetite for change. Yet, for many years the criticism in the EU has not necessarily resulted in a strong drive for policy change. This author has named this apparent contradiction the “don't like it but don't change it” syndrome, whereby those who criticize the policy every day hesitate to change it or even consider it exaggerated when the criticism comes from others (Penas Lado 2016). The best proof is the reaction of much of the European fishing industry to the Green Paper on CFP reform published in 2009, where the European Commission made an unprecedented self‐criticism of the policy (EU 2009a): a number of voices, notably from the industry itself, considered that the Commission presented a too negative view of the policy which, in their view, was not justified.
This example illustrates the weight of tradition in the evolution of the policy. In fisheries management in general, and in the CFP in particular, it is impossible to consider policy improvements by starting with a blank page. Any discussion on policy reform must always take account of the complex maze of vested interests to keep the status quo or part thereof, and the limited capacity of the system (the industry as well as administrations) to change course. Any policy change should always be partial and gradual, or it will simply not take place. And, in most cases, change is not necessarily self‐induced, but the result of driving forces from outside the industry/administration complex.
A fundamental part of the difficulty to reform the CFP is its distributive nature. A number of authors have alluded to the origins of the policy that were dominated by considerations of national interest by the Council of Ministers when allocating fishing rights, rather than by the search for a rational system to manage fisheries (Schweiger 2010). Symes and Crean (1995) underlined the fact that when the CFP was established, ministers were simply expected to defend national interest in obtaining a share of the resources, regardless of the consequences for the common good. This created a deeply‐rooted tradition of looking into maximizing the biggest possible piece of the pie in the short term, and that culture has largely survived to this day. Such culture, in addition, has for a long time prevented management from “growing the size of the pie.”
This tradition is also related to the paternalism that has prevailed in fisheries management in most Member State administrations. This led part of the most competitive industry in 1983 to consider that the prevalence of the national interest was not related with free markets, but rather with social welfare (cited in Schweiger, 2010). In other words, national interests were often defined in social welfare terms as opposed to free markets and sustainable harvests.
Although considerable progress has been made to redress these issues since 1983, the difficulty to re‐consider the distributional part of the policy still constitutes a major factor opposing policy change and adaptation. Any change that could be construed as a questioning of the initial distribution of fishing rights (relative stability) finds automatic opposition by a still large majority of Member States and significant parts of the industry.
It has been underlined that over time the distributional part of the policy, the allocation among Member States of single stocks through relative stability, has been inevitably distorted because species have tended to decline or recover at different rates responding to variable changes in stock abundance (Symes 1997). However, this fact has never led Member States to question the status quo, in a demonstration of the extreme conservatism derived from the initial distribution: it is better not to touch it even if in some cases it may be working against the interest of a Member State. This state of mind is also largely shared in the European institutions, where allegations that something may question relative stability immediately translate into stopping the discussion: suggesting that idea is simply a self‐explanatory non‐starter.
In addition, it has been demonstrated in a number of cases that the agreement on allocation of a fish stock is a pre‐condition for the adoption of management measures at EU level. This has two consequences: that the distributional aspects of the policy are a barrier against policy change, but also that effective policy change can only take place if the distributional question is addressed. The latter is probably the biggest challenge to any attempt at future policy change in the CFP.
The CFP, since its inception in 1983, has been subject to a process of reform three times, roughly every 10 years. Reforms have been adopted in 1992, 2002, and 2013 (Penas Lado 2016). The traditional wisdom associated to these reforms has been that there needs to be a balance between (a) the necessary adaptation of the policy as new evidence appears or new challenges are to be faced, and (b) the necessary time of stability to concentrate on implementation.
During the inter‐reform periods, however, a number of policy changes can still be introduced, but these generally do not require a change of the legal basis of the policy, and correspond to practical implementation of new or different approaches that are already foreseen in that legal basis.
The tradition of reform every 10 years continues, and the current basic regulation 1380/2013 foresees in its Article 49 the presentation of a report by the Commission to the European Council and to the Parliament on the functioning of the CFP by 31 December 2022. Although this clause does not imply necessarily another major reform as of 2023, it would seem reasonable to think that the evolution of the policy is such that is difficult to see how it would just stay unchanged for another 10 years for the first time ever, in particular taking account of the influence of important factors such as Brexit or climate change. In the meantime, the next years to come will be fundamentally implementation time.
Indeed, some of the most substantial changes of the policy have been introduced during this inter‐reform period and without changing the previous legal basis. For example, the idea of considering the maximum sustainable yield (MSY) as the long‐term objective of the management of fish stocks (before being enshrined in the 2013 reform) was gradually introduced after the 2002 reform through a Commission Communication (EU 2006a) and gradually applied de facto in some long‐term plans long before the idea was consolidated in legislation in 2013.
This fact is extremely important, because it shows that policy change should not be seen just as a legislative change every 10 years, but rather as an open‐ended process where adaptation can take place through practice when and where it is relevant and necessary, even without a fundamental legislative change in the policy's legal basis. There is, however, a very strong current against policy change notably from two actors: fisheries administrations and major segments of the fishing industry.
In the case of fisheries administrations, there is a deeply‐rooted reticence to policy change. This is understandable: managing a fisheries policy is complex; it requires a lot of work to get familiar with the policy and to set up the administrative and other instruments to run it smoothly. The idea that once they have succeeded to do that the policy will be immediately questioned makes them extremely nervous. As an example, the in‐depth consultation by the Commission on the possible changes to introduce in the control regulation of 2009 after the 2013 CFP reform showed all administrations asking for limited technical challenges: “evolution, not revolution” was the position held by practically all national administrations.
The fishing industry is a more complex case. Always critical with the policy, they often try to shy away from change when necessary: the “don't like it but don't change it” referred to above that much of the European industry has practiced for so long. As an example, in a recent debate on the matter a distinguished representative of the European fishing industry, after expressing strong criticism to the policy, was asked what would be his top priority in the event of a new reform of the CFP. He replied loud and clear: “give us a break” in reference to the need to have stability and not question the policy so often.
While it is very understandable to ask for “policy stability” both by administrations and the industry, the problem of this notion is that it often translates into something else: policy inertia. While the first is desirable, in that stability is necessary to ensure good implementation, and to provide the industry with a clear framework where they can operate and plan future investments, the second is a problem in that it tends to dismiss necessary change and improvement.
Policy stability and policy inertia are definitely not the same. The problem is that distinguishing between the two is not necessarily straightforward and, for sure, is seen by different players from very different standpoints. I would argue, however, that certain cases are clear in distinguishing the two notions:
The regime applicable to the 12 miles is probably a good example of good, positive policy stability: it is not questioned by anyone, it has never been identified as a problem and it provides security to fishermen and administrations alike.
The continuity of certain structural measures like the funding of temporary laying‐ups outside cases of
, after decades of application without any positive evaluation, is a clear case of policy inertia with more than questionable effects.
In policy terms, it is generally expected that policy changes introduced in a reform will enjoy the standard 10‐year period for implementation. This is more than sufficient time to ensure the economic stability of the activity, the need for changes in the management system by national administrations and so on. But when certain policy features remain unquestioned after one or even several inter‐reform periods, despite evidence for the need for change, this is not stability, it is policy inertia, which only means the inability of the policy to face its challenges. Making a clear distinction between the two things can be a very enlightening exercise for future discussions on the need and opportunity for policy reform.
The balance between policy stability and policy change has been described as a function of the interplay between epistemic communities that traditionally dominate the policy debates which tend to lean toward stability, so that policy change takes place when new advocacy coalitions can bring a new policy image and impose it, taking advantage of shifts in political leadership (Meijerink 2005). On their side, Dudley and Richardson (1996) consider that although one of the adversarial communities may hold an advantage over the other at a particular time, the scope for action in a number of different policy‐making arenas makes it unlikely that it will retain supremacy over time. Radical change is most likely to be brought about by factors exogenous to policy communities.
How does this relate to CFP reform? Indeed, the CFP has long been dominated by the fishing industry as the clear epistemic community. One can wonder whether this role actually corresponded to the scientific fisheries community, but if we follow the above definition, the scientific community has long been the only source of “objective” basis for the policy, but the tradition of largely ignoring its advice by decision‐makers clearly points to the fishing industry, and the national administrations that largely reflected its views as the real epistemic communities that have dominated roughly the first two decades of the policy.
In the same context, the main “advocacy coalition” has been that of a public opinion influenced by environmental NGOs, which have been the main drivers of policy change, using to their advantage certain changes in political leadership.
These changes in leadership have indeed contributed to policy change quite substantially. The two last policy reforms (2002 and 2013) have been facilitated by the political leadership in the European Commission, who have been increasingly open to the new advocacy coalitions, albeit in a very variable manner: the 2002 CFP reform was influenced by a Fisheries Commissioner who was sensitive for the first time to views outside the mainstream epistemic community. Still, some of the highlights of that reform (the introduction of Regional Advisory Councils) was clearly a demand of the fishing industry itself, while other reforms (the suppression of aid to new construction of vessels) was clearly not, except for a few cases. This tendency was exacerbated in the 2013 reform, where two of the three main new elements (the landing obligation and the MSY objective by 2020) were adopted contrary to the industry's will, and the third one (regionalization) was supported only by a fraction of the industry.
Another important reason for policy change is the tendency toward clarification of policy objectives and enlargement of policy scope. The tendency over the years clearly goes in the direction of adding more and more layers to the policy, as shown in Figure 1.1. This is explained in particular by the need to enlarge the scope, to include new policy objectives and principles, as well as the need to further clarify questions that the previous policy basis left undefined. And this trend is clearly additive: it adds new policy layers but rarely removes the previous ones, resulting in a policy that accumulates new provisions over time.
Figure 1.1 Number of words in the basic regulation of the CFP over the years.
This tendency has positive aspects, for example that it includes new provisions that are necessary for the policy to address new challenges, but it also has downsides: in particular it adds complexity and increases the likelihood of the different policy layers being conflicting.
The tradition of a legislative reform every 10 years together with implementation changes during the inter‐reform periods has traditionally implied a philosophy that all the important changes in the policy must follow a new legislative basis.
However, it is important to underline that the different legal basis of the policy, starting with the two basic regulations of the policy (EU 1970a,b) actually had certain elements that could have been developed into policy, but never were, or in a very limited way. Among many possible examples, the possibility of using fishing effort as an instrument was part of the initial palette of management instruments in the CFP, but it was not until the first recovery plans for depleted stocks in 2004 that the instrument was incorporated as an additional instrument to the total allowable catches (TACs) and quotas.
This reveals another tradition of the CFP: while it is clear that new management approaches do necessitate a legal basis, very often this legal basis has been there for a long time, but has not been used because the policy never put into place the elements needed to make it happen. In other words: having a legal basis is a necessary, but not sufficient condition for policy change.
There are many examples of this dichotomy between the legal basis and the implementation in practice. A case in hand is that of the “real time closures,” a type of measure to adapt fishing practice quickly once there is evidence, for example, that a certain area is full of juvenile fish and should be avoided. Traditionally recommended by many fishermen's associations and a number of national administrations, a legal basis for its application was indeed included in the new control regulation of 2009 (EU 2009b). However, it was never applied in practice. The reason is simple: the practical implementation of that provision requires inter alia a system of real‐time transmission of information by a reliable source; something that was never put into place. In fact, the only experience of this kind was applied by the Scottish fleet alone.1
The elements for policy change can be varied but always go far beyond the existence of a legal basis:
Sometimes, policy change is brought about simply by applying the policy's own rules with determination and conviction, in cases where the rules had been ignored without consequence.
In certain cases, the legal principle exists, but the mechanisms to make it really applicable in practice are not implemented. The above‐mentioned case of the real‐time closures is a good example.
In other cases, the change takes place in certain areas and/or fisheries, where Member States and the industry concerned take such changes more seriously, while in other areas this is not the case.
Overall, the CFP has always had a very wide range of possibilities in its basic legal texts, but these possibilities have not always been implemented in practice, either because the policy preferred other options, or else because the non‐legislative conditions necessary for their implementation simply were not there. This, in turn, means that before thinking about introducing changes on a legal basis, it is important to try to exploit all the possibilities offered by the existing legal framework, and this represents a certain change of “culture” in the policy.
The CFP has evolved through the three reforms and through the gradual evolution within the successive frameworks. Whether the changes introduced in the policy are too slow and limited, or too quick and substantial, that is of course a matter of different opinions. This author will contend that fisheries policy in general, and the CFP in particular have been very slow to change.
There can be a number of reasons for this:
The high level of uncertainty associated to the activity, which creates a culture very unfavorable to innovations whose consequences are unclear.
The relatively slow pace of technical innovation, which makes regulatory change less necessary to accommodate such innovation as compared to other economic sectors.
The image of fisheries as a highly conflictual sector, where the difficulties associated to policy change offset the benefits of the change itself, at least from the viewpoint of many politicians and managers. This often makes the interest to keep social peace a higher priority than adopting necessary (but conflicting) changes in the policy.
The relatively small size of the fishing industry when compared with other economic sectors in the EU, which generally puts fisheries under the radar of other important policy changes affecting larger economic sectors.
Ultimately, the political drive for reform of the CFP is a result of the imbalance between the low overall economic weight of the fishing activity in the EU as a whole and the (real or perceived) unrest of the sector, that often discourages managers from undertaking difficult and contentious change, because the political price to pay is comparatively high and the rewards low.
That is of course the situation where countries can afford to fail in their fisheries management, and then compensate this failure with a certain level of public funding. On the contrary, countries such as Iceland where the fishing industry is the country's bread and butter (at least until the touristic boom in recent years), simply cannot afford to fail in their fisheries management, and that implies a much greater openness to keep the policy under constant scrutiny and permanent adjustment and improvement. Within the EU, this is also reflected by the position of the regions where fisheries represent a high percentage of income, that are traditionally much more open to policy change.
Because of these elements, what is a slow pace of change for some can actually look like a very speedy and confusing policy evolution to others. The speed of change depends on subjective perceptions, and it is not possible to assess such speed in pure objective terms. The question, however, can be approached from the point of view of the degree of adaptation of the policy to certain challenges or to traditional shortcomings. There, a certain number of experiences can shed some light in that discussion: in a number of substantial issues of the CFP, progress has been extremely slow, or inexistent, for example:
The management areas for the establishment of TACs have been basically unchanged for more than 30 years, despite clear evidence of changes in the areas of distribution of a number of stocks.
The change from the downward trend to the upward trend in stock abundance took more than 20 years (from 1983 to roughly 2000) after the birth of the conservation policy.
In certain areas, such as the Mediterranean Sea, the conservation pillar of the policy is still in its infancy, after the first attempts in 1994 (see
Some ideas (the reduction in discarding) mentioned already in 1992 were only introduced in the policy in 2013, that is, 21 years later!
Similarly, the establishment of MSY as a policy objective, established by international law (The United Nations Convention on the Law of the Sea; UNCLOS) as a binding objective in 1994, was only enshrined in the legal basis of the CFP in 2013, 19 years later.
These few examples illustrate that, at least in a number of important policy areas, policy progress in the CFP has been extremely slow. In any case, perceptions about the pace of change in the CFP are naturally variable. Some Member States, with dynamic, industrial fishery sectors want a quicker pace of policy change and innovation. Others, with more traditional sectors prioritize the preservation of the status quo by all possible means. For the latter, any change tends to be too much.
Ultimately, this division also reflects ideological divisions about the way to handle fisheries: while those favoring an economically‐liberal approach tend to favor policy change, those favoring a more paternalistic, State‐driven economic sector tend to be more adverse to policy change. Interestingly, this division does not depend so much on the color of the government in each Member State: these ideological divisions are remarkably stable within every Member State despite changes of government, and tend to reflect deeply‐rooted and politically transversal traditions of liberal vs. paternalistic management models of their fishing industry.
It would be simplistic to think that the most substantial changes are necessarily those of the 10‐year policy revisions. Sometimes, the most substantial changes have been introduced in the inter‐reform periods. This is illustrated by the experience of implementing the 2002 reform (EU 2002):
This reform failed to incorporate MSY as the objective of the management of stocks, since the political drive from the World Summit on Sustainable Development took place the same year, thus with little time to incorporate that political objective into EU law. However, this did not prevent the Commission promoting this objective years before the following reform, notably through a Communication (EU
) followed by specific MSY objectives in certain long‐term recovery plans.
The experience of the use of effort management as a duplicate instrument to catch limitations, established by the 2002 reform, was considered a negative one and gradually eliminated from subsequent proposals. In some cases, provisions on effort management were simply ignored by Council in practice, despite the requirements of the 2002 legal basis.
The above experience shows that in the period within two reforms there may be very substantial changes to the policy in practice, without necessarily requiring any change in the legal basis. This is very positive, because it shows that the policy needs, and can in practice, be adapted through learning from experience outside the reform periods.
This is another fundamental question when it comes to policy change: if the policy is flexible enough, it does not need to be modified so often. If it is rigid, then it needs to be adjusted every time there is an unforeseen circumstance. In this particular case, it seems clear that the CFP is characterized by a high level of rigidity. Some examples cited by Penas Lado (2016) illustrate this point, such as the case of the Baltic ice cover and the cod summer ban, or that of the adaptation of the European Fisheries Fund to address the effects of the 2008 oil crisis.
There is little doubt that the CFP is a very rigid policy: all the rules, up to a remarkably technical and detailed level, are laid down as legislation that is neither easy nor quick to modify. In addition, the room for maneuver to “interpret” the legislation is limited by the fact that this is a role that corresponds exclusively to the European Court of Justice, which implies that the policy is “interpreted” only when the Court establishes case law through its rulings.
Is this rigidity inevitable or a conscious political choice? This author will contend that this policy rigidity is mainly a tradition established at its inception and subsequently consolidated and even reinforced ever since. There is a good historical reason for this: the difficulty of the long period (1977–1983) of gestation of the policy made it necessary to agree on all details to overcome the lack of trust among the players concerned. This lack of trust has continued or even been exacerbated in successive enlargements of the Union, and thus the need to fix all the details has continued.
This has resulted in a policy that is not only rigid, but also complex, since most if not all the actors have traditionally put emphasis on securing their vested interests and actually prefer a bespoke policy, no matter how complex, to a simple one that could be open to flexible interpretation by different players.
Since 2010 co‐decision between the Council and Ministers and the European Parliament is the ordinary legislative procedure for the CFP. In this context, it is opportune to ask if it has contributed to make the CFP more flexible or more rigid. The answer is not always straightforward, but I will contend that, overall, co‐decision has rendered the CFP even more rigid than before. The reasons are varied:
The process of decision‐making has become so complicated that once a decision is taken the system has little capacity or willingness to introduce amendments to cater for new circumstances.
The sheer amount of regulations of the CFP is difficult to handle by a system with a limited capacity to look at too many projects at the same time; this considerably limits the opportunity for the Commission to make too many proposals in parallel, let alone modify those adopted after very long and complex negotiations.
The balance of power between the two co‐legislators often results in regulations becoming too detailed and rigid, as a result of institutional mistrust: Council and Parliament mistrust each other and often also mistrust the Commission having too much room for maneuver to decide. The result of this mistrust is regulations that establish too many details through co‐decision.
In fact, co-decision is an ideal procedure for a policy where the legislative production is scarce and is made up of a few legal acts, such as directives, that are adopted every so often. But the procedure is ill‐adapted to a policy with a tradition of abundant and detailed legislation. In this case, co‐decision can barely cope with the speed at which the legislation needs to be produced and adopted.
Obviously, any discussion on the future CFP is not going to change the Treaty. But, as we will see in Chapter 14, there is a way out: using co‐decision to adopt much less detailed and prescriptive legislation, and re‐centering the work of co‐legislators on fewer but politically important questions.
This requires a reflection on the role of Parliament in the CFP: while Council is used to decide on all matters pertaining to the CFP, the role of Parliament as a co‐legislator is still relatively recent (2010) and still needs some adjustment, particularly in the way of concentrating its activity on the important political points, not so much on the technical detail. In every political system, Parliaments adopt laws, not regulations. Yet, in the current co‐decision process of the CFP the European Parliament (and the Council) still have the tendency to adopt too many technical details. This requires a fundamental cultural change. We will refer to this in Chapters 9 and 14 in particular.
As these pages are being written, the CFP is in the middle of the inter‐reform period. If we follow the scheme described under “Legal change vs. policy change” above, this is not the time for policy reform, but just for implementation. It is true that any indication, at this juncture, that policy change may be necessary could seriously undermine the efforts to implement the 2013 objectives effectively. The difficulties around the full implementation of the landing obligation are the best example: if a policy change was considered, it would probably follow that all the actors concerned would concentrate on what changes to introduce, not on how to implement the policy adopted already.
However, a number of reasons clearly indicate that the policy implementation cannot necessarily be business as usual until the above‐referred report of 2022. These reasons are the following:
The implementation of the two new CFP objectives: the MSY by 2020 for all stocks, combined with the full implementation of the landing obligation by 2019, and all under the rigid, unchanged quota allocation keys under relative stability will produce an important choke species effect in many fisheries in EU waters, thus affecting the ability of the fishery to deliver the objectives of the policy as according to Article 39, Treaty on the Functioning of the European Union (TFEU) (see
The growing evidence of climate change and its expected effects on fish stocks will change the status quo of the policy, notably as a result of the displacement of the area of distribution of a number of key species in European waters. These changes will inter alia make current management areas obsolete and will aggravate the problem of choke species (see
The achievement of the policy objectives in the Mediterranean lags far behind other EU waters and will require a special effort and special instruments if such objectives are to be achieved at all (see
The CFP is closely linked to the evolution of the international management of fisheries, and this is subject to increasing pressure that the policy has to adapt to, in particular if and when this evolution leads to new international obligations for the EU (see
The effects of the growing influence of public opinion (largely through social networks) on policy decisions, the coming into play of new economic players in the maritime space, and thus the challenge to handle an increasingly complex policy context (see
Last but certainly not least, the effects of the withdrawal of the United Kingdom from the EU, whatever the specific conditions agreed, will fundamentally change the CFP. These changes will require new policy decisions and approaches that may wait until the next policy reform after 2022.
All the above points will make it necessary to adapt the policy sooner rather than later, so the idea that the current inter‐reform period should be business as usual is not granted.
That the CFP has always had a bad press is beyond any doubt. The causes are mixed, but perhaps the very nature of fisheries management (imposing restrictions to preserve tomorrow's fishing is not necessarily popular) and the character of the policy as one of the few exclusive competence policies of the EU makes the CFP or “Brussels” an easy scapegoat. This bad press is particularly acute in the case of the UK, to the point that in the Brexit referendum (see below) the British fishing communities voted massively for Brexit, despite the recent reform (2013) that was very well‐received by the British government of the time.
In addition to the policy's own failings, that are not in short supply, the CFP is also criticized for decisions taken by Member States themselves. A very interesting example is, as recently as 2016, that provided by the British tabloid Daily Mail, which stated in large headlines that the English fishing industry was “sunk by EU quotacrats” based on the fact that 23% of English fish quotas were allocated to a single Dutch‐owned vessel, to the detriment of small operators.2 What the article ignored is that the allocation of the British fish quotas among operators is decided by the British government, without interference from “Brussels.”
Though policy change does not necessarily follow critical views from the media, it would be naive just to ignore the weight of public (or published) opinion in shaping up political positions about the CFP.
Ultimately, the case for CFP reform will be determined by the consideration of the policy as a success or a failure. This consideration, over and beyond superficial evaluations, is more complex than it seems. It is largely a question of expectations, as well as the way in which we report about its results:
The same policy results can be viewed as success or failure depending on expectations, on the interpretation of policy objectives or on the different weight given to the policy's different objectives. There is no single way to consider policy results as success or failure.
To evaluate the degree of success of a policy it is also essential to ensure that the evaluation is done on all the relevant data. Reporting on policy results is crucial because depending upon what aspects of the policy, and what objectives we look at, we may have a very different view of the policy's degree of success.
Let's look at these questions.
The notion of policy success is not univocal. Different actors would have a very different view of what this “policy success” is all about. This is the case in all fisheries around the world because the objectives of fisheries policy are various and often conflicting, and what certain stakeholders may consider a failure is perhaps a success for other stakeholders (Hilborn 2007).
In the CFP, the different objectives of Article 39 TFEU point in the direction of a multi‐faceted notion of success. This is so because the different objectives of the policy may in fact be conflicting among them. The importance of recognizing the conflict between policy objectives is increasingly stressed (Hilborn 2007; Dichmont et al. 2010; Pereau et al. 2012; Zimmermann and Yamazaki 2017). This means that the management system should incorporate ways to assess these conflicts and incorporate the relative importance of the objectives of different stakeholder groups in the institutional framework (Pascoe et al. 2017).
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