After repeated illegal operations by vessels of Italian origin in Africa, the author reviews the European legal framework and recommends that the European Commission be stricter with Member States when they fail to control and sanction their vessels operating in third-country waters. The Commission should also provide a better framework for reflagging.
Note: editor’s title.
Reading time: 15 minutes
Last September, the Gambian authorities reported that a vessel of Italian origin, the TWENTY, had not complied with the provisions of the fishing authorisations (undersized nets, no logbook, no transmission of AIS data). The authorities also seized shrimp cartons that had been labelled “sustainable” by the certification standard “Friend of the Sea” and were presumably intended for the European market.
However, this vessel - which, according to online sources, is now presumably reflagged to the Gambia, still belongs to an Italian company, ASARO, as well as other vessels, all of which are known by the European Union for repeated illegal fishing operations in West Africa. Back in 2019, CFFA, along with other organisations, filed a complaint with the European Commission about the illegal operations of these vessels in Sierra Leone. In 2015, some of them had also been arrested in the Gambia for illegal fishing (use of non-compliant gear).
Since that date, and despite months of dialogue with the Commission [Ed. See chronologies at the end of the article], nothing has been done. The Commission had informed us that, as part of an audit of the EU's external fleet (2019-2020), it had started a pre-litigation dialogue procedure (EU pilot) with Italy. The country provided “convincing answers” on the performance of its control system. We subsequently requested access to the entire document, in the name of the fundamental right of public access to documents held by Union institutions. All we received was a heavily censored report in which we could find nothing of interest. Eventually, the Commission closed our complaint. Yet, these vessels continue to fish illegally in West Africa...
Reflagging: a weakness of EU law
In 2013, the Sub-Regional Fisheries Commission was already concerned by the same Italian vessels and requested for an advisory opinion from the International Tribunal for the Law of the Sea (ITLOS) on the question of the responsibilities of the flag State and the coastal State in the event of IUU fishing. Currently, these vessels do not appear on any IUU list.
A Sustainable Fisheries Partnership Agreement (SFPA) exists between the EU and the Gambia, giving access to tuna and hake resources for EU vessels. Under the exclusivity clause in the SFPA, these vessels of Italian origin shall not operate in the Gambia under the flag of a Member State. But that is not a problem: they simply would have reflagged their ship to a non-EU country. Their last registration under Italian flag dates back to February 2020, when they used to operate in Sierra Leone under direct authorisations issued by local authorities (which is possible in Sierra Leone since no SFPA is currently in force). Consulted in November 2023, the Register of fishing authorisations issued for EU vessels fishing outside EU waters no longer lists them. We can assume that they reflagged in the Gambia because the tuna SFPA was in force and they could not be included in it. However, even if they fly the flag of another country, the owners remain Italian, and therefore European.
The EU must impose the same standards on European beneficial owners as those it imposes on other states in the fight against IUU fishing. Photo: A trawler of Russian origin, Wikimedia Commons.
The reflagging of EU vessels to countries unable or unwilling to control their fishing activities, the difficulty to obtain information on these vessels’ activities and, in the event of IUU fishing, to make beneficial owners subject to penalties are a weakness in the EU law. Although we have been sounding the alarm for years, these vessels that are repeat offenders continue to slip through the cracks because of regulatory loopholes and the inaction of the European Commission towards its Member States. This type of activity can no longer be tolerated. In the fight against IUU fishing, the EU imposes standards on other States that it should also impose on European beneficial owners, by finding means to make them subject to sanctions.
A clear legal framework?
The European Union’s Common Fisheries Policy (CFP) makes it possible to monitor, control and surveillance (MCS) the fishing fleets of Member States, both inside and outside EU waters, and to avoid the landing of IUU fishing products on the EU market, regardless of the origin of the vessels and the companies that own them. The main MCS measures are contained in the European Control Regulation, the IUU Regulation, the Sustainable Management of External Fishing Fleets Regulation ("SMEFF" Regulation), and the Regulation on the European Fisheries Control Agency (EFCA). The EU external fleet is also subject to the rules of the Sustainable Fisheries Partnership Agreements (SFPAs) and Regional Fisheries Management Organisations (RFMOs).
The implementation of MCS measures is a primary responsibility of EU Member States: they must enforce CFP rules on their vessels wherever they operate, and therefore ensure the necessary controls and sanctions even for vessels operating outside EU waters.
The Commission must ensure that its Member States comply with these obligations and must initiate proceedings (infringement procedure, Pilot case) if they fail to do so. Therefore, it obviously applies to the activities of external fleets, which was confirmed by ITLOS Advisory Opinion No 21, issued on 2 April 2015: In the context of a fisheries agreement concluded between a coastal State and an international organisation which has exclusive competence in fisheries matters, the obligations of the flag State become mutatis mutandis the obligations of the international organisation, as a contracting party to the agreement. Only the international organisation, and not its member states, may be held liable for failing to comply with its duty under the agreement. The EU is therefore clearly responsible in the current circumstances.
Every year, each Member State must provide the European Commission with information on its fisheries sector. It is therefore possible to trace vessels that leave a Member State's fleet and reflag. However, there is no obligation for a Member State to monitor a vessel that withdrew from its fleet, or to refuse to remove it from its national register, even if the vessel is reflagging to a country known to be complacent about IUU fishing. European regulations (SMEFF, art. 6) only stipulate that a vessel that left the EU fleet can reintegrate it if it proves that it did not engage in IUU fishing during the five years preceding the request for reinstatement on the EU fleet register.
BOX 1: Request for access to information regarding BALTREIDS’ beneficial owners
On 30 November 2020, CFFA and two other NGOs, Oceana and Clientearth, initiated another procedure requesting access to information concerning the beneficial owners of BALTREIDS. This Latvian fishing company based in Europe was created in 1998 and operates in the Baltic Sea and, since 2002, also has large freezer trawlers operating in the Atlantic waters off the African coast.
Two of the company's vessels catch small pelagics under the Sustainable Fisheries Partnership Agreement (SFPA) protocol in Mauritania, and it has been reported on several occasions that the vessels were not complying with the legal obligations set by the agreement; they were spotted operating in coastal areas reserved for local small scale fishing, and they systematically refuse to have observers on board. BALTREIDS was also named in a Canadian media investigation that highlighted the company's involvement in suspicious transactions with Russian money and money laundering through shell companies set up by Russian businessmen in Latvia and Canada. Today, according to online sources, KAPITAN MORGUN and FISHING SUCCESS still fly the Latvian flag, but the former no longer appears as belonging to BALTREIDS.
The request for information access was related to vessels KAPITAN MORGUN and FISHING SUCCESS and contains information recorded in the EU fishing authorisation database, in accordance with Article 39 of the SMEFF Regulation. In particular: the fishing authorisations granted to them, documents containing the name, city, country of residence of the owner of the two vessels and documents containing the name, city, country of residence of the owner and the five main beneficial owners, as well as the nature and extent of the beneficial interest held by BALTREIDS.
At the end of a procedure that consistently exceeded legal deadlines to reply (see Box 2 below for more details), as in the case of Italian vessels (see chronology below), the Commission only provided CFFA with meagre data, which was already available online.
At the level of international law, only the FAO Voluntary Guidelines on Flag State Performance require that the flag State must settle pending sanctions against a vessel (shipowner/captain) before it deregisters the vessel (§24). FAO’s International Plan of Action to Prevent, Deter and Eliminate IUU fishing (IPOA-IUU) states that “States should discourage their nationals from flagging fishing vessels under the jurisdiction of a State that does not meet its flag State responsibilities” (§19). This recommendation should be reinforced at EU level, where each Member State defines its own conditions for granting and withdrawing a flag. A European rule should be introduced requiring Member States to refuse to deregister a vessel if it intends to reflag to a State that is pre-identified or identified as non-cooperating in the fight against IUU fishing.
Finally, the EU has a unique tool: the IUU Regulation, that not only concerns external relations with the dialogue and identification procedure of non-cooperating States, but also the EU market. The regulation acts as a framework that prevents the importation of IUU fishing-derived products on the European market, notably through the catch documentation scheme (CDS), guaranteeing product traceability. In addition, this regulation requires Member States to take all appropriate measures to identify nationals supporting or engaging in IUU fishing and to take the necessary action (art. 39). In other words, if the - allegedly "sustainable" - shrimps on the TWENTY were destined for the European market, they should not enter it and the operators should be subject to sanctions.
However, progress is made with the new EU control regulations. Under review since 2018, this regulation was adopted by the Parliament on 22 October 2023 after an interinstitutional trialogue that lasted almost five years and has entered into force on 1st January 2024.
From that date, Member States will have to ensure that they have no beneficial owners in fleets operating in pre-identified countries(see amendments to article 38 of the Control Regulation). The Parliament explicitly asked the Commission to take measures to put an end to the use of flags of convenience, and it "calls for public access to information on the beneficial ownership of fishing vessels of all flags". Parliament therefore calls on the Commission to improve the identification system of vessels engaged in IUU fishing activities so that it is possible to trace the country of origin of the vessel even if the flag state is uncertain and to add vessels where there are proven cases of human rights violations.
UNSCRUPULOUS OPERATORS FACING A POWERLESS... OR COMPLACENT COMMISSION?
The monitoring of ships that reflag and their beneficial owners is still widely unregulated under EU law. As a result, these vessels and activities escape more binding European rules and standards, as well as controls and sanctions. Despite the reflagging, the interests remain European, because the owner companies are European.
European anti-money laundering directives, which are currently being revised, make Member States responsible regarding the identification of companies that engage in this type of activity and the recording of information on beneficial owners in centralised registers. The Commission has access to all these national registers, which are available to the public.
BOX 2: The European Ombudsman initiated an investigation against the European Commission for its excessive delays in dealing with requests for public access to documents
Since the Commission consistently exceeded legal deadlines to reply, CFFA referred two cases to the European Ombudsman: the case of Italian vessels and the case of the Latvian company BALTREIDS (see Box 1 above). In both cases, the Ombudsman urged the Commission to reply, which resulted in CFFA to finally get a response, and she also integrated our two appeals into a wider enquiry in this field.
It concluded that when citizens ask the Commission to reconsider its initial access decision, “the transparency regulation (1049/2001) deadlines are missed in 85% of cases” and called for support and action from the European Parliament: “These delays undermine citizens’ ability to scrutinise EU decisions and policies in a direct and timely way. The Commission needs [...] to correct this systemic problem.”
Photo: Emily O’Reilly, European Ombudsman, during a hearing at the European Parliament. © Union européenne 2013 - Parlement européen.
In addition, the European Regulation on the sustainable management of external fishing fleets (SMEFF Regulation) requires the European Commission to manage an electronic database of fishing authorisations, including information on the beneficial owners of operations carried out by vessels flagged in an EU Member State. To this day, the information on beneficial owners remains confidential.
Nevertheless, we have serious questions about the quality of the information the Commission gathers. Along with other NGOs, we initiated a similar procedure concerning access to information on the beneficial owners of BALTREIDS (see box at the end of the article and the chronology), a Latvian company regularly involved in illegal fishing activities in West Africa. We defended our request for information to the Commission on the basis of the Aarhus Convention and the overriding public interest in having access to this information. Our efforts yielded no results, the Commission provided only limited information, which is already available on the Internet, something that indicates that either the inability of the Commission to obtain more information on the beneficiary owners, or an obstinacy in not providing it...
This hinders the public's right to access information for better participation in the decision-making process and in the name of transparency in fisheries, so much advocated by the EU itself. Facilitating public access to the information on beneficial owners contained in this database (name, city, country of residence of the owner and of the five main beneficial owners, as well as the nature and extent of the beneficial interest held) would be a promising sign in creating transparency on beneficial owners.
The Commission's response on the Baltreids procedure makes us wonder about the data collected in the SMEFF database and what control the Commission has over its Member States if they do not provide all the data? If this database contains no more information on these companies than that available on the Internet, how can we expect the Commission to really ensure the traceability of its ships and manage to identify the companies at risk?
But if the Commission holds this data, EU law requires it to be made available to the public.
IN ANY CASE, COMPLACENT TOWARDS ITS MEMBER STATES…
A 2022 audit by the European Court of Auditors on the implementation of the EU IUU policy highlighted irregularities of Member States and showed that they were not equally rigorous. Between 2015 and 2020, the Commission has opened 34 "EU Pilot" cases in order to address the identified weaknesses through dialogue. Nevertheless, between 2015 and 2021, the Commission initiated 11 infringement procedure against Member States for failings relating to the effective application of the landing obligation, the control of their fisheries or external fleets, the application of an effective system of sanctions in the event of serious infringements or the control of catch registration and weighing systems.
Of all Member States, Italy has the highest number of "EU Pilot" procedures underway or completed (all policies combined). In addition, in 2021 the country was the subject of an infringement procedure in maritime affairs and fisheries, even though it had already been convicted in 2009 for failing to impose sanctions that were not sufficiently effective, proportionate, and dissuasive.
A close look at the statistics shows that Member States are subject to less infringement procedures under maritime affairs and fisheries policy than under other policies. Sanctioning Member States as well as operators for proven and repeated infringements or failings is the key to effective implementation of the CFP, the EU contributes to its ambitions of sustainable fishing and zero tolerance regarding IUU fishing.
Our recommendations
The Commission should...
1. Pursue legal actions against Member States for failure to comply with their obligation to implement CFP regulations and pay particular attention to Member States whose fleets repeatedly infringe rules.
2. Facilitate public access to beneficial owner information (which could be limited to the name, country of residence and nationality of beneficial owners, and the nature and extent of beneficial interest) when the public interest overrides the disclosure of such information: for example, in cases of documented involvement of IUU fishing, bribery or money laundering. That would align the implementation of the SMEFF Regulation with:
· regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents;
· regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters; and
· the 5th EU Anti-Money Laundering Directive, providing that Member States must set up public registers of the beneficial owners of companies (with conditions).
3. Reinforce the monitoring of the implementation of IUU Regulation by Member States, notably those identified in the European Court of Auditors report and those for which there is reason to believe that they do not effectively apply the regulation and allowing IUU-fishing products to enter the EU market.
4. Ensure that Member States effectively sanction their nationals involved in IUU-fishing activities in application of Article 39 of the IUU Regulation.
5. Devise a regulatory measure providing a framework that prohibits vessel reflagging from an EU Member State to a pre-identified country as non-compliant with IUU Regulations.
The chronicle of the exchanges about Italian vessels activities in Sierra Leone
Here is a recap of CFFA’s exchanges with the Commission (click on the dates to open and download the communications):
Italian vessel engaged in IUU in Sierra Leone
A joint surveillance mission by Greenpeace and Sierra Leone fisheries authorities found an Italian vessel engaged in IUU (shark finning).
Six Italian trawlers fail to comply with provisions of SL authorizations
Six Italian trawlers were delivered direct fishing authorizations but, according to local sources (participatory surveillance) and VMS/AIS data, these did not comply with the provisions of the authorisations. Namely: 1) The prohibition to fish in the inshore zone reserved for artisanal fishing; 2) The need to request permission for transhipments at sea and 3) The prohibition to catch octopus and cuttlefish in zones where they are coming to spawn.
CFFA & other organisations file a complaint to the EC
CFFA, CAOPA, PRCM, Danish Living Seas and Bloom file a joint complaint to the European commission for “Failure of Italian competent authorities to adopt measures to monitor their vessels operating in the waters of Sierra Leone and, where relevant, to sanction them if they were operating illegally, in contravention of EU fisheries rules”.
Informal meeting with DG MARE
Meeting between CFFA and DG MARE where additional information was provided.
DG MARE requests additional evidence
Letter from DG MARE asking us to provide the Commission with additional clarifications and supporting evidence. We considered that we had already given enough elements about the infringements of the Italian vessels concerned so that the Commission could inquire about the activity of the Italian vessels in Sierra Leone waters.
CFFA sends a letter reminding of EC obligations
CFFA sent a letter noting that it is the duty of the Commission, as Guardian of the Treaty, to carry out the relevant inquiries and reminded that, according to ITLOS, case n° 21, the obligations of the flag States become those of the international organisation, which may be held liable for any breach of its obligations.
DG MARE: The complaint is integrated in a pilot case
Letter from DG MARE saying that our complaint had been integrated in an EU Pilot case launched on 29 November in the context of an audit carried out by DG MARE.
DG MARE: “Not in a position to arrive at a decision”
Short letter from DG MARE saying only that the Commission was not in a position to come to a decision. Now, end of June 2020, almost again 5 months later, we have not received anything new from the Commission.
CFFA writes to Commissioner Sinkevičius: “The Commission dragging its feet”
CFFA sent a letter to the Commissioner for Environment, Oceans and Fisheries complaining that the Commission is dragging its feet: “There are no grounds on which the Commission should delay any action that it must take, as Guardian of the Treaty, against Italy which fails to fulfil its obligations as an EU Member State” and stating that if the Commission does not inform CFFA “of any concrete follow-up” to the complaint within one month”, CFFA “is ready to refer the case to the European Ombudsman”.
DG MARE: “Commission cannot coerce coastal states to apply their national laws”
The Acting Director for DG MARE responded that “full implementation and enforcement of the rules is one of the priorities of our Commissioner’s mandate” and that her services were “following closely the investigations being made by Italy as the flag state of the vessels indicated”. However, further to that, “it is in the interest of local fisher(wo)men who feel aggravated to bring the matter to the attention of their national authorities as managers of the fish stocks occurring in their EEZ. In this respect, it is highlighted that the fishing licences are issued by Sierra Leone as the coastal state and it is within its power to withdraw or deny fishing licences and to take enforcement measures where it deems that its national laws have been breached. In this context, whilst the Commission should take up the matter with any Member State, as we did, it cannot coerce coastal states to apply their national laws.”
Informal communication with DG MARE: “Investigations are confidential”
CFFA contacted informally DG MARE for an update on the EU Pilot case. The response was that investigations were still ongoing and DG MARE clarified that a Pilot case is meant to resolve an infringement of EU law without formally opening a procedure. This means that the Commission guarantees the confidentiality of investigations “that could lead to an infringement procedure”.
CFFA requests access to the external fleet audit: “if necessary, resort to a formal access to information request”
CFFA wrote officially to DG MARE legal services to know “if the investigation has been closed” as “the delays are almost (or already?) expired. It is of great importance to know the deadline of the procedure, and as a matter of fact, the outcome, knowing that Italy has the highest number of Pilot cases in course at the moment (18) in various domains and it seems that it often exceeds the average response time (settled at 70 days).” CFFA insisted that the audit "on the external fleet is “essential for the understanding of EU fishing activities outside EU waters, and would be of great interest for our partners and the public in general” and insisted that “if necessary, we will resort to a formal access to information request.”
DG MARE: “All issues should be concluded before the end of January 2021”
DG MARE legal services informed that they had received all necessary information from Italy and that they “should be able to conclude on all issues covered by the EU Pilot case that relate to your complaint before the end of January 2021.” However, access to the audit of the external fleet could not be granted because “the investigation following this audit is still ongoing” and recalled that “the scope of the EU Pilot case EUP(2019)9562 is larger than the issues included in your complaint.”
CFFA asks for an update via an email to DG MARE legal services
CFFA wrote an email to legal services of DG MARE as according to the delays expected in a Pilot case, “the process should be over by now” and insisted on the importance on knowing the results of the case “in order to inform our partners in West Africa and to request access to the audit on the external fleet”. CFFA further stressed that the audit is “essential for the understanding of EU fishing activities outside EU waters, and would be of great interest for our partners and NGOs in general. The publication of this audit will be part of the EU great efforts towards better transparency of its fishing activities outside its waters.”
DG MARE sends a pre-closure letter: Commission concludes that “no illegal activities of the operators can be proven”
Third holding reply from DG MARE
CAPE files a complaint with the European Ombudsman
Not only did the Commission fail to respond within the time limit, but after more than 3 months of waiting, it provided another holding reply, with no guarantee to reply. What's more, CFFA had not asked for any additional work, but for access to existing work and information.
Ombudsman urges Commission to provide a reply and includes our request in wider process
After reminding the Commission of its obligations, the Ombudsman informed us that her team would get back to us and that our case would, with our agreement, be part of a wider investigation regarding the Commission's delays in responding to requests for access to documents. The Commission replied to the Ombudsman on 9 February stating that "the extension of the time limit to reply to the applicant's confirmatory application was justified and proportionate" in the circumstances.
The Commission finally replies: disappointment
Seventeen months after CFFA filed its initial complaint, after months of exchanges, a confirmatory application, numerous delays and referrals to the Ombudsman, the Commission finally replies. The audit of the external fleet was not communicated to us, nor the information concerning the Italian vessels, because according to the Commission, we had not "demonstrated the existence of an urgent and specific need for the public to obtain access to the document requested". The Commission informed us that it initiated the pre-closure of the case, and then closed it.
The chronicle of the exchanges about the request for access to BALTREIDs’ (fishing company) data
CFFA applies for access to documents on Baltreids
CFFA, Oceana and ClientEarth applied to the Commission for access to documents containing information on the beneficial owners of BALTREIDS, a European-based company engaged in fishing activities in West Africa.
First holding reply of the Commission
The Commission uses its legal extension. A reply is expected on 21 January 2021.
CFFA receives a second holding reply from the Commission
The Commission requests an additional 2 weeks to reply
CFFA reminds the Commission's obligation to reply.
The Commission refuses access to documents
Confirmatory request from CFFA
CFFA, Oceana and ClienthEarth send a confirmatory request to access documents concerning information on the suspicious activities of Baltreids’ fishing vessels operating in West Africa.
Another holding reply
The Commission gives us new deadline to reply by 3 May.
*NOTE: We did not receive this first holding reply, although the Commission refers to it in the communication of 3 May (below).
Additionnal delay from the Commission
After using its 15 working-days extension period to reply, the Commission sent an e-mail reading that CFFA should expect an additional delay “following the reply from the Latvian authorities we have been able to finalise the assessement of your confirmatory application. The adoption process of the confirmatory decision will be launched this week.”
The Commission replies: further disappointment
The Commission provides information that is of no interest because it is already available online. By not providing the requested information the Commission does not answer the questions asked.
CFFA seizes the European Ombudsman
Complaint to the Ombudsman for failure to reply within the time limit to a request for an access document, in accordance with the procedure laid down in Article 8 of Regulation No 1049/2001.
The European Ombudsman replies to CFFA
In the meantime, the Ombudsman sent a reminder to the Commission.
Banner photo: Unsplash @fer_nando
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