Council Regulation (EU) 2017/127 of 20 January 2017 fixing for 2017 the fishing opportunities for certain fish stocks and groups of fish stocks, applicable in Union waters and, for Union fishing vessels, in certain non-Union waters

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(3) thereof,

Having regard to the proposal from the European Commission,

Whereas:

1. Article 43(3) of the Treaty provides that the Council, on a proposal from the Commission, is to adopt measures on the fixing and allocation of fishing opportunities.

2. Regulation (EU) No 1380/2013 of the European Parliament and of the Council⁽¹⁾ requires that conservation measures be adopted taking into account available scientific, technical and economic advice, including, where relevant, reports drawn up by the Scientific, Technical and Economic Committee for Fisheries (STECF) and other advisory bodies, as well as in the light of any advice received from Advisory Councils.

3. It is incumbent upon the Council to adopt measures on the fixing and allocation of fishing opportunities, including certain conditions functionally linked thereto, as appropriate. In accordance with Article 16(4) of Regulation (EU) No 1380/2013, fishing opportunities should be fixed in accordance with the objectives of the Common Fisheries Policy established in Article 2(2) of that Regulation. In accordance with Article 16(1) of that Regulation, fishing opportunities should be allocated to Member States in such a way as to ensure relative stability of fishing activities of each Member State for each fish stock or fishery.

4. The total allowable catch (TACs) should therefore be established, in line with Regulation (EU) No 1380/2013, on the basis of available scientific advice, taking into account biological and socioeconomic aspects whilst ensuring fair treatment between fishing sectors, as well as in the light of the opinions expressed during the consultation of stakeholders, in particular at the meetings of the Advisory Councils.

5. The landing obligation referred to in Article 15 of Regulation (EU) No 1380/2013 is introduced on a fishery-by-fishery basis. In the region covered by this Regulation, when a fishery falls under the landing obligation, all species in that fishery subject to catch limits should be landed. From 1 January 2017, the landing obligation applies to the species that define the fisheries. Article 16(2) of Regulation (EU) No 1380/2013 provides that, when the landing obligation in respect of a fish stock is introduced, fishing opportunities are to be fixed taking into account the change from fixing fishing opportunities that reflect landings to fixing fishing opportunities that reflect catches. On the basis of the joint recommendations submitted by the Member States and in accordance with Article 15 of Regulation (EU) No 1380/2013 the Commission adopted a number of delegated Regulations laying down specific discard plans applicable on a temporary basis for a maximum period of three years, in preparation for the full implementation of the landing obligation.

6. The fishing opportunities for stocks of species falling under the landing obligation from 1 January 2017 should compensate for former discards and be based on scientific information and advice. In order to ensure fair compensation for the fish that has been previously discarded and that will have to be landed from 1 January 2017, a top-up should be calculated according to the following methodology: the new landings figure should be calculated by subtracting from the International Council for the Exploration of the Sea (ICES) figure of total catches the amounts that will continue to be discarded during the operation of the landing obligation; subsequently a top-up applied to the TAC figure should be proportional to the change between the new calculated landings figure and the previous ICES landings figure.

7. Council Regulation (EC) No 1342/2008⁽²⁾ has been amended by Regulation (EU) 2016/2094 of the European Parliament and of the Council⁽³⁾, deleting Chapter III of Regulation (EC) No 1342/2008. For this reason, and in line with Commission Delegated Regulation (EU) 2016/2250⁽⁴⁾, as of 1 January 2017 the landing obligation of cod will apply to catches of cod in ICES subarea IV, ICES division IIIa and Union waters of ICES division IIa, in accordance with the Articles 1 and 3 of, and the Annex to, the Commission Delegated Regulation. For this reason, fishing opportunities for the cod stock should be fixed in accordance with Article 16(2) of Regulation (EU) No 1380/2013, taking into account the amounts of fish that were discarded in the past and that now will have to be landed.

8. According to scientific advice, sea bass (Dicentrarchus labrax) in the Celtic Sea, Channel, Irish Sea and southern North Sea (ICES divisions IVb, IVc and VIIa, VIId–VIIh) remains in a perilous state and the stock continues to decline. The conservation measures to prohibit fishing for sea bass should therefore be maintained in ICES divisions VIIa, VIIb, VIIc, VIIg, VIIj and VIIk, with the exception of the waters within 12 nautical miles of the baseline under the sovereignty of the United Kingdom. Spawning aggregations of sea bass should be protected with commercial catches restricted further in 2017. On the basis of social and economic impacts limited fisheries using hooks and lines should be permitted, while providing for a closure to protect spawning aggregations. Additionally, due to incidental and unavoidable by-catches of sea bass by vessels using demersal trawls and seines, such by-catches should be limited to 3 % of the weight of the total catch of marine organisms on board with a maximum of 400 kilograms per month. For the same reasons, for fixed gillnets by-catches should be limited to 250 kilograms per month. Catches of recreational fishermen from the Northern stock and, for precautionary reasons, from the stock in the Bay of Biscay should be restricted by a daily limit.

9. For some years, certain TACs for stocks of elasmobranchs (skates, sharks, rays) have been set at zero, with a linked provision establishing an obligation to immediately release accidental catches. The reason for this specific treatment is that the conservation status of those stocks is poor and, because of their high survival rates, discards will not raise fishing mortality rates for them, but are deemed as beneficial for the conservation of these species. As of 1 January 2015, however, catches of those species in pelagic fisheries have to be landed, unless they are covered by any of the derogations from the landing obligation foreseen in Article 15 of Regulation (EU) No 1380/2013. Article 15(4)(a) of that Regulation allows such derogations for species in respect of which fishing is prohibited and which are identified as such in a Union legal act adopted in the area of the Common Fisheries Policy. Therefore, it is appropriate to prohibit the fishing of those species in the areas concerned.

10. Pursuant to Article 16(4) of Regulation (EU) No 1380/2013, for stocks subject to specific multiannual plans the TACs should be established in accordance with the rules laid down in those plans. Consequently, the TACs for stocks of sole in the Western Channel, of plaice and sole in the North Sea and of bluefin tuna in the Eastern Atlantic and the Mediterranean should be established in accordance with the rules laid down in Council Regulations (EC) No 509/2007⁽⁵⁾, (EC) No 676/2007⁽⁶⁾ and (EC) No 302/2009⁽⁷⁾. The objective for the Southern hake stock as set out in Council Regulation (EC) No 2166/2005⁽⁸⁾ is to rebuild the biomass of the stocks concerned to within safe biological limits, while staying in line with the scientific data. In accordance with scientific advice, in the absence of definitive data on a target spawning stock biomass and while taking into account changes in safe biological limits, it is appropriate, in order to contribute to the achievement of the objectives of the Common Fisheries Policy as defined in Regulation (EU) No 1380/2013, to fix the TAC on the basis of maximum sustainable yield advice, as provided by ICES.

11. As regards the stock of pollack in subareas IX and X and Union waters of CECAF 34.1.1, which was previously identified as whiting, it is appropriate to allocate to Portugal, additionally, fishing opportunities not exceeding 98 tonnes. The whiting TAC in those areas should be discontinued.

12. As a result of the recent benchmark exercise, as regards the stock of herring to the west of Scotland, ICES has provided advice for the combined herring stocks in Divisions VIa, VIIb and VIIc (West of Scotland, West of Ireland). The advice covers two separate TACs (for VIaS, VIIb and VIIc on the one hand, and for Vb, VIb and VIaN on the other). According to ICES, a rebuilding plan has to be developed for these stocks. Since, according to scientific advice, the management plan for the northern stock⁽⁹⁾ cannot be applied to the combined stocks and it is not possible to set separate fishing opportunities for these two stocks, a limited TAC is established to permit a commercially operated scientific sampling programme.

13. For stocks for which there is no sufficient or reliable data in order to provide size estimates, management measures and TAC levels should follow the precautionary approach to fisheries management as defined in Article 4(1)(8) of Regulation (EU) No 1380/2013, while taking into account stock-specific factors, including, in particular, available information on stock trends and mixed fisheries considerations.

14. Council Regulation (EC) No 847/96⁽¹⁰⁾ introduced additional conditions for year-to-year management of TACs including, under Articles 3 and 4 of that Regulation, flexibility provisions for precautionary and analytical TACs. Under Article 2 of that Regulation, when fixing the TACs, the Council is to decide to which stocks Articles 3 or 4 of that Regulation shall not apply, in particular on the basis of the biological status of the stocks. More recently, the year-to-year flexibility mechanism was introduced by Article 15(9) of Regulation (EU) No 1380/2013 for all stocks that are subject to the landing obligation. Therefore, in order to avoid excessive flexibility that would undermine the principle of rational and responsible exploitation of marine biological resources, hinder the achievement of the objectives of the CFP and deteriorate the biological status of the stocks, it should be established that Articles 3 and 4 of Regulation (EC) No 847/96 apply to analytical TACs only where the year-to-year flexibility provided for in Article 15(9) of Regulation (EU) No 1380/2013 is not used.

15. Where a TAC relating to a stock is allocated to one Member State only, it is appropriate to empower that Member State in accordance with Article 2(1) of the Treaty to determine the level of such TAC. Provisions should be made to ensure that, when fixing that TAC level, the Member State concerned acts in a manner fully consistent with the principles and rules of the Common Fisheries Policy.

16. It is necessary to establish the fishing effort ceilings for 2017 in accordance with Article 5 of Regulation (EC) No 509/2007, Article 9 of Regulation (EC) No 676/2007, and Articles 5 and 9 of Regulation (EC) No 302/2009.

17. In order to guarantee full use of fishing opportunities, it is appropriate to allow for the implementation of a flexible arrangement between some of the TAC areas where the same biological stock is concerned. It is thus appropriate in particular to allow a limited inter-area flexibility for haddock from area Vb and VIa to area IIa and IV.

18. For certain species, such as certain species of sharks, even a limited fishing activity could result in a serious risk to their conservation. Fishing opportunities for such species should therefore be fully restricted through a general prohibition on fishing those species.

19. At the 11th Conference of the Parties of the Convention on the Conservation of Migratory Species of Wild Animals, held in Quito from 3 to 9 November 2014, a number of species were added to the lists of protected species in Appendices I and II of the Convention, with effect from 8 February 2015. Therefore, it is appropriate to provide for the protection of those species with respect to Union fishing vessels fishing in all waters and non-Union fishing vessels fishing in Union waters.

20. The use of fishing opportunities available to Union fishing vessels set out in this Regulation is subject to Council Regulation (EC) No 1224/2009⁽¹¹⁾, and in particular to Articles 33 and 34 of that Regulation, concerning the recording of catches and fishing effort and the notification of data on the exhaustion of fishing opportunities. It is therefore necessary to specify the codes to be used by Member States when sending data to the Commission relating to landings of stocks subject to this Regulation.

21. It is appropriate, following advice from the ICES, to maintain a specific system to manage sandeel and associated by-catches in Union waters of ICES divisions IIa and IIIa and ICES subarea IV. Given that the ICES scientific advice is expected to become available only in February 2017, it is appropriate to set the TAC and quotas for this stock provisionally at zero until such advice is released.

22. In accordance with the procedure provided for in the agreements or protocols on fisheries relations with Norway⁽¹²⁾ and the Faroe Islands⁽¹³⁾, the Union has held consultations on fishing rights with those partners. In accordance with the procedure provided for in the agreement and protocol on fisheries relations with Greenland⁽¹⁴⁾, the Joint Committee has established the level of fishing opportunities available for the Union in Greenland waters in 2017. It is therefore necessary to include these fishing opportunities in this Regulation.

23. At its Annual Meeting in 2016, North-East Atlantic Fisheries Commission (NEAFC) adopted conservation measures on the two redfish stocks in the Irminger Sea. These measures should be implemented in the law of the Union.

24. At its Annual Meeting in 2016, the International Commission for the Conservation of Atlantic Tunas (ICCAT) adopted an extension of the TAC and quotas for North and South Atlantic albacore and North and South Atlantic swordfish and an extension of the TAC for yellowfin tuna. Furthermore, it also set a catch limit for North Atlantic blue shark, East Atlantic and West Atlantic sailfish, it set a TAC for Mediterranean swordfish and confirmed for 2017 TACs and quotas previously established for bluefin tuna and bigeye tuna. Concerning blue and white marlins, ICCAT confirmed for 2017 the TACs previously established and accepted the proposed payback plan proposed by the EU due to the overharvest by Spain in 2014 and 2015. As it is already the case for the stock of bluefin tuna, it is appropriate that catches in recreational fisheries of all other ICCAT stocks should be subject to the catch limits as adopted by that organisation. Furthermore, Union fishing vessels of at least 20 metre length fishing for bigeye tuna in the ICCAT Convention Area should be subject to the capacity limitations adopted by ICCAT in the ICCAT Recommendation 15-01. All these measures should be implemented in the law of the Union.

25. At its 35th Annual Meeting in 2016, the Parties to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) adopted catch limits for both target and by-catch species for 2016/2017 and 2017/2018. The uptake of such quota during 2016 should be considered when setting fishing opportunities for the year 2017.

26. At its Annual Meeting in 2016, the Indian Ocean Tuna Commission (IOTC) adopted catch limits for yellowfin tuna (Thunnus albacares). It also adopted a measure reducing the use of Fish Aggregating Devices (FADs) and limiting the use of supply vessels. As the activities of supply vessels and the use of FADs are an integral part of the fishing effort exerted by the purse seine fleet, the measure should be implemented in the law of the Union.

27. The Annual Meeting of the South Pacific Regional Fisheries Management Organisation (SPRFMO) will be held on 18-22 January 2017. It is appropriate that current measures in the SPRFMO Convention Area are provisionally maintained until such Annual Meeting is held. However, the stock of jack mackerel should not be targeted before a TAC is set as a result of that Annual Meeting.

28. The Inter American Tropical Tuna Commission (IATTC) failed to conclude its 90th Annual Meeting during 2016 and an Extraordinary Meeting will take place on 7-10 February 2017. It is appropriate that the current measures for yellowfin tuna, bigeye tuna and skipjack tuna in the IATTC Convention Area are provisionally maintained until the Extraordinary Meeting is held.

29. At its Annual Meeting in 2016, the South East Atlantic Fisheries Organisation (SEAFO) adopted a conservation measure for biennial TACs for Patagonian toothfish, deep sea red crab, alfonsinos and pelagic armourhead. A biennial TAC for orange roughy in Division B1 was also adopted, while the TAC for those species in the remainder of the SEAFO Convention Area was limited to one year. The currently applicable measures on allocation of fishing opportunities adopted by SEAFO should be implemented in the law of the Union.

30. At its 13th Annual Meeting, the Western and Central Pacific Fisheries Commission (WCPFC) confirmed the conservation and management measures in place. Those measures should continue to be implemented in the law of the Union.

31. At its 38th Annual Meeting in 2016, the Northwest Atlantic Fisheries Organisation (NAFO) adopted a number of fishing opportunities for 2017 of certain stocks in Subareas 1-4 of the NAFO Convention Area. Those measures should be implemented in the law of the Union.

32. At its 40th Annual Meeting in 2016, the General Fisheries Commission for the Mediterranean (GFCM) adopted catch and effort limits for certain small pelagic stocks for the years 2017 and 2018 in the geographical subareas 17 and 18 (Adriatic Sea) of the GFCM Agreement Area. Those measures should be implemented in the law of the Union. The maximum catch limits established in Annex IL are fixed exclusively for one year and without prejudice to any other measures adopted in the future and any possible allocation scheme between Member States.

33. Taking into account the particularities of the Slovenian fleet, their marginal impact on the stocks of small pelagic species it is appropriate to preserve the existing fishing patterns and to ensure access of the Slovenian fleet to a minimum quantity of small pelagic species.

34. Certain international measures which create or restrict fishing opportunities for the Union are adopted by the relevant Regional Fisheries Management Organisations (RFMOs) at the end of the year and become applicable before the entry into force of this Regulation. It is therefore necessary for the provisions that implement such measures in the law of the Union to apply retroactively. In particular, since the fishing season in CCAMLR Convention Area runs from 1 December to 30 November, and thus certain fishing opportunities or prohibitions in the CCAMLR Convention Area are laid down for a period of time starting from 1 December 2016, it is appropriate that the relevant provisions of this Regulation apply from that date. Such retroactive application does not prejudice the principle of legitimate expectations as CCAMLR members are forbidden to fish in the CCAMLR Convention Area without authorisation.

35. As regards the fishing opportunities for snow crab around the area of Svalbard, the Treaty of Paris of 1920 grants an equal and non-discriminatory access to resources for all parties to that Treaty, including with respect to fishing. The Union's view of this access as regards fishing for snow crab on the continental shelf around Svalbard has been set out in a note verbale to Norway dated 25 October 2016, in respect of a Norwegian regulation of the fishing for snow crab on its continental shelf, which in the Union's view disregards the specific provisions of the Treaty of Paris and in particular those laid down in Articles 2 and 3 thereof. In order to ensure that the exploitation of snow crab within the area of Svalbard is made consistent with such non-discriminatory management rules as may be set out by Norway, which enjoys sovereignty and jurisdiction in the area within the limits of the said Treaty, it is appropriate to fix the number of vessels that are authorised to conduct such fishery. The allocation of such fishing opportunities among Member States is limited to 2017. It is recalled that primary responsibility for ensuring compliance with applicable law lies with the flag Member States.

36. In accordance with the declaration by the Union addressed to the Bolivarian Republic of Venezuela on the granting of fishing opportunities in EU waters to fishing vessels flying the flag of Bolivarian Republic of Venezuela in the exclusive economic zone off the coast of French Guiana⁽¹⁵⁾, it is necessary to fix the fishing opportunities for snapper available to Venezuela in Union waters.

37. Given that certain provisions are to be applied on a continuous basis, and in order to avoid legal uncertainty during the period between the end of 2017 and the date of entry into force of the Regulation fixing the fishing opportunities for 2018, it is appropriate that the provisions concerning prohibitions and closed seasons continue to apply at the beginning of 2018, until the entry into force of the Regulation fixing the fishing opportunities for 2018.

38. In order to ensure uniform conditions for granting an individual Member State an authorisation to benefit from the system of managing its fishing effort allocations in accordance with a kilowatt days system, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council⁽¹⁶⁾.

39. In order to ensure uniform conditions for the implementation of this Regulation, implementing powers should be conferred on the Commission relating to the granting of additional days at sea for permanent cessation of fishing activities and for enhanced scientific observer coverage as well as to establish the formats of spreadsheet for the collection and transmission of information concerning transfer of days at sea between fishing vessels flying the flag of a Member State.

40. In order to avoid the interruption of fishing activities and to ensure the livelihood of the fishermen of the Union, this Regulation should apply from 1 January 2017, except for the provisions concerning fishing effort limits, which should apply from 1 February 2017, and certain provisions in particular regions, which should have a specific date of application. For reasons of urgency, this Regulation should enter into force immediately after its publication.

41. Fishing opportunities should be used in full compliance with the applicable law of the Union,

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