Spain appeals to the Court of Justice of the European Union against the deep-sea fishing regulation

News - 2022.11.14

The Government of Spain has today lodged an action for annulment before the Court of Justice of the European Union (EU), by telematic registration, of the Implementing Regulation 2022/1614 of the European Commission which prohibits fishing in 87 areas of the Atlantic shelf at depths of between 400 and 800 metres, considered to be vulnerable marine ecosystems.

The Ministry of Agriculture, Fisheries and Food has considered the closure of fishing in the areas established by the regulation to be disproportionate and unfair, as it does not have the most up-to-date scientific information available, does not have an impact report and thus violates the principles of the Common Fisheries Policy (CFP), which establishes the necessary balance, in the decisions adopted, between the protection of marine biodiversity and the maintenance of sustainable fishing.

The complaint, which due to its technical complexity has required intense and coordinated work between the services of the Ministry of Agriculture, Fisheries and Food, the Spanish Institute of Oceanography and the State Attorney's Office, highlights the deficiencies of form and substance which the European Commission would have made in the preparation of this implementing act.

In its application, Spain sets out the substantiated reasons why it considers that this implementing regulation should be annulled, since it infringes the provisions of Regulation 2016/2336 ('the basic regulation'), as well as the principle of proportionality, which is one of the general principles of EU law, with the aim of ensuring that the acts of the Community institutions are in accordance with the objectives pursued by the regulation and that, therefore, the measures adopted are proportionate to the objectives pursued.

The Government considers that the contested measure is not consistent with the objectives it is intended to pursue (the necessary protection of fishery resources and sustainable fishing activity), which are set out both in the basic regulation and in the resolutions adopted by the United Nations General Assembly and in the international guidelines for the Management of Deep-sea Fisheries in the High Seas of the Food and Agriculture Organisation of the United Nations (FAO).

It understands that it does not do so because the stated objective is the protection of vulnerable marine ecosystems, as well as areas where they are likely to exist, from 'considerable', 'major' or 'significant' adverse impacts of certain fishing gears.

The Government considers that the lack of proportionality is evident in the case of fixed fishing gear used on the seabed, whose significant adverse impact has not been established either by the International Council for the Exploration of the Sea (ICES) or by the European Commission, and whose activity has not been taken into account when designing possible scenarios for action.

The flawed design of this regulation leads to the paradox that, despite the fact that it was conceived to address the specific circumstances of bottom trawling, it has been longlining and other fixed fishing gear that have been seriously affected by being deprived of their usual fishing grounds. The trawl fishery, which operates down to 400 metres depth, is hardly affected by this regulation.

Proportionality must also be ensured in terms of taking into account the three pillars of the Common Fisheries Policy, environmental sustainability, the generation of economic and social benefits and employment. It is felt that this balance has not been sufficiently taken into account in the drafting of a regulation that lacks the minimum analysis of the socio-economic impact on the fleet concerned.

In relation to the use of the best available scientific knowledge, ICES acknowledges in its report that it has not taken account of fixed gear fishing activity in the design of the scenarios. This fishing activity does not have a significant adverse impact, and ignoring the information is a breach of the rules set out in the basic regulation.

Similarly, the complaint filed by Spain also questions the proportionality of the system for determining the areas of vulnerable marine ecosystems, since the polygons identified are not uniform according to latitude, generating much larger closed areas in Spanish waters than in other more northerly latitudes. This methodology ultimately results in the closure of excessively large areas around where vulnerable ecosystems have been detected, which particularly affects Spain due to its smaller continental shelf.

It also questions whether the best available information has been used, such as that from projects such as INDEMARES and INTEMARES, with knowledge of the marine environment for the management of Natura 2000 Network sites, which are co-financed by the European Union and whose data would have enabled better decision-making.

The complaint also questions the fact that the basic regulation can establish an indiscriminate prohibition between different types of gear, without infringing the provisions of the Common Fisheries Policy and, once again, the principle of proportionality. It also raises the question of whether the European Commission's choice of the scenarios set out in the ICES report is an implementing act.

In any case, in line with the Spanish Government's commitment to the sustainability and protection of marine ecosystems, Spain will continue to work and collaborate with the European Commission, in parallel to the legal proceedings, to achieve a solution as soon as possible so that the Spanish and Community fisheries sector is not affected by this unfair situation.

Non official translation