Examination of Witness (Questions 655-659)
Mr Harm Koster
7 MAY 2008
Q655 Chairman: Thank you very much
for finding the time to spend with us, particularly on a day like
this, but we have our duty to perform. We are a Sub-Committee
of our House of Lords EU Scrutiny Committee. We are carrying out
an inquiry into the future of the Common Fisheries Policy and
where it should be going. This is a formal evidence session so
a note will be taken and you will get a transcript as soon as
possible. You can look through it and do any corrections that
are necessary. Would it be useful if we started with the questions
and answers?
Mr Koster: That is fine.
Q656 Chairman: Could I start by saying
that the Control Agency is a very recent animal, so could you
give us some idea of how it came about, why was it thought necessary,
and then if you could give us a brief description of its responsibilities
and how it goes about its job that would be very helpful?
Mr Koster: Thank you very much. I am delighted
to share my experience in the Common Fisheries Policy with you.
The Community Fisheries Control Agency was established in 2005
as a product of the 2002 reform. I will say a few words about
the history. Fishing used to take place in international waters
which started beyond territorial waters, so most of the seas in
the past were international waters, and the need to conserve fish
stocks was already recognised long ago. To that end the country
states in the world today have established regional fisheries
organisations which we still have. They are now less important
because international waters are now beyond 200 miles and 80-90%
of the fish are now inside economic zones, but there was already
a tradition in international organisations to agree on conservation
and then subsequently to implement more or less what was internationally
agreed, and that more or less was not always to the letter. There
was already a certain experience of this, so when we started with
the Common Fisheries Policy in 1983 it was basically in the Act
of Accession for the UK and then Norway negotiated as well at
the time and Denmark and Ireland, and then it was certain in that
that in ten years' time there would be a Common Fisheries Policy.
That was in 1983 so in 1983 this policy was started for a period
of 20 years, which brings us to 2002. There was a mid-term review
after ten years. At the start the Member States agreed to give
the Commission a team of Commission inspectors. That was not for
nothing because there was already a certain tradition that you
could agree on conservation, you could agree to catch restrictions
but to implement them was another question and so there was already
a certain—maybe I should not say "mistrust", but
there was—
Q657 Chairman: I think you should.
Mr Koster:— already in 1983 the Commission
a team of inspectors to control Member States because that was
felt necessary. In the mid-term review in 1992 it was recognised
that control was a poor element of the Common Fisheries Policy,
it was not properly implemented, so when we came to 2002, the
reform after 20 years, in the Green Paper the Commission was very
open in noting the shortcomings on the implementation of the policy
side. Basically, in 2002 there were two big problems. The first
problem was that there was too much capacity. Too many vessels
were chasing too few fish—" Mr Fishery" you will
remember was the slogan of Mr Fischler—and the second problem
was control. Subsequently, in all the discussions on the control
side there was a certain consensus among stakeholders in the fishing
industry. Basically, the fishing industry was frustrated about
the way the Common Fisheries Policy was implemented, the way control
was carried out. It was very fragmented. There were lots of holes
in the system. They felt that it was an uneven playing field,
there was not equal treatment and even some fishermen said that
they felt discriminated against when they were fishing in waters
of other Member States; they felt that they were discriminated
against in relation to fishermen from the other Member States,
so the fishing industry came with a consensus position which requested
the Community for a much bigger and more direct involvement in
control, in the process of implementing the policy. Whether this
was all serious is another question because we always said at
the time that probably half of the fishing industry was really
frustrated and they wanted to have better control and enforcement
but for the other half supporting the idea that at Community level
there was more direct involvement in control would be the best
guarantee to continue with very poor enforcement because the Community
would never be able to do this job properly and therefore it would
continue in a situation where there was poor enforcement. Anyway,
they were politically correct and they said that there was unanimity
that there should be more direct involvement at Community level
in control of the rules of the Common Fisheries Policy. We were
reflecting with Mr Fischler at the time on what kind of reply
we should give to this and that was not so easy because there
were some ideas already before—a European coastguard, a
common inspection authority at Community level, but these ideas
were institutionally not correct. Because we have independent
sovereign Member States, in Community policies decisions are taken
in Brussels by the Community institutions but the implementation
is always a question of the sovereignty of Member States. They
have to implement. Of course, if you are a member of the club
you have to respect the rules of these competent authorities to
make sure that an inspector has the right to inspect an economical
person. These kinds of matters really belong to the sovereignty
of Member States and they are matters for Member States to settle.
It is not a matter for the Community to establish a European coastguard
because this is a matter for Member States, and in the UK you
have the Scottish Fisheries Protection Agency in Scotland and
in England it is the Ministry, and now there is an independent
agency as well which is in charge of implementing control and
enforcement of the rules of the Common Fisheries Policy. These
are really national matters. If you establish a European coastguard
you also need inspectors which have to do the job and these inspectors
must have a mandate and it is not institutionally correct in accordance
with the current rules to give them a European mandate. They need
still to have a national mandate, so we have these institutional
problems. There has been quite some discussion about this and
Mr Fischler did not want to make a revolution. He wanted to stick
to the construction of the Community as it was but he was then
prepared to be pragmatic and to do a feasibility study on a European
Community Control Agency to see how such an agency could operate,
and then the idea was not to take away the responsibility of Member
States for the implementation of the Common Fisheries Policy.
On the contrary, in the reform of 2002 it was emphasised what
were the responsibilities of Member States. Member States are
responsible for controlling enforcement, nobody else. The feasibility
study on the Agency was just to study how an agency could help
Member States to implement the rules of the Common Fisheries Policy
in such a way that we would have at Community level a level playing
field, so this agency should assist Member States in co-operating
between them in order to make sure that there was at European
level a level playing field. If you have a common policy, a European
policy, I think the industry, the stakeholders, would see this
as a common policy and they would wish that there was a level
playing field in the Community. If you have 27 Member States and
the implementation of a common policy is done by 27 different
Member States at the end if everybody does it in their own way
it is very difficult to keep a common policy because every Member
State has its own priorities, every Member State has its own organisation
and every Member State applies things in its own way. Therefore,
the idea was to create an agency to help Member States to do the
job, to co-operate between them and do the job together. The feasibility
study, and that is in the best traditions of Community decision,
was contracted but at the same time the heads of state in the
last meeting before the accession of new Member States from eastern
Europe wanted to decide on the place of the agencies, and in the
first drafts they did not include an agency for which the Commission
had not yet made a proposal, but after the negotiation it appeared
that in the last draft there was a kind of recital in which the
Commission was invited to come forward urgently with a proposal
on a Community Control Agency which should be located in Vigo
in Spain. At that moment it was only Spain, but the Spanish Government
at that stage had already said that this would be Vigo in Galicia,
so we had not even started the feasibility study at that time
but—
Q658 Chairman: But we know where
it is going to go!
Mr Koster: But these are the good traditions,
I would say, of decision-making at Community level. That is a
little bit of history of the Agency.
Q659 Viscount Brookeborough: Looking
at your experience to date, what would you identify as the strengths
and weaknesses of your performance thus far, being self-critical,
and what indicators do you rely on in making this assessment?
Mr Koster: It is a little bit early to have
a full assessment of the operation of the Agency. The Agency was
created in 2005 and the Commission formed an administrative board
which met for the first time in February 2006. They nominated
the Director in June and I started my function in September 2006,
so we have been operationally active as from January 2007 but
with very few people. We have tried to make the best out of it
and now we are in 2008 so we are expanding our activities but
I cannot say today that we are fully implementing the regulation
constituting the Agency. It was a political priority that we would
deliver very fast on our core activities. It was felt that after
the reform in 2002 the process to establish the Agency had taken
quite some years and, given the fact that there was not a proper
level playing field, it was a priority to deliver as fast as we
could on the operational co-ordination. We started in 2007 taking
over the NAFO vessel that was in international waters outside
Canadian waters. The Commission have traditionally had an inspection
vessel and Commission inspectors carried out inspections under
the NAFO scheme. That was not really a Commission task and the
Commission has been criticised by its own audit services that
this was not really a task for the Commission because control
and enforcement is a primary task of Member States and the Member
States concerned—Spain, Portugal and other Member States—should
do this by themselves, so we had also as a first urgent duty to
take over this vessel as from January. The Commission still financed
that in 2007 and we had to take over and operate the vessel, which
we have done, with national inspectors on board of the Member
States concerned and with one co-ordinator of the Agency on board,
and so we have run the scheme and this has caused very little
disruption from the activity which was carried out beforehand
by the Commission. During 2007 we brokered a deal between Member
States concerned on burden-sharing because all Member States have
to share the burden, Spain 50%, Portugal about 30%, and then other
Baltic Member States—Poland, Germany—all share smaller
quantities. We have brokered burden-sharing on the basis of the
fishing activities in the reference period. That was all agreed
and so we have chartered on behalf of the Baltic States and Poland
an EU inspection vessel and other Member States decided to deploy
their own inspection vessels in the NAFO area. Meanwhile, also,
Portugal had difficulties with their own navy vessel and so we
had to charter very urgently an inspection vessel for Portugal
as well but that operation is running and we have extended this
year as well with port inspections to having exchange of inspectors
between Member States and to carry out also a number of port inspections
mixed in. In the North Sea we have started discussions with all
those Member States surrounding the North Sea. I want to say here
that I am very grateful for all the co-operation which we got
from all the Member States around the North Sea. We adopted our
first joint deployment plan in July. We did eight campaigns last
year. We had about 130 days of operation during the campaigns
in the second half of last year, which was quite good, so the
experience in the North Sea was good, I think, because we followed
the model that inspection patrol vessels and aeroplanes are pooled
and then they are jointly deployed. There can be only one captain
on a vessel so there must be one who is in charge of the co-ordination,
and since we have not the means to do it by the Agency we have
asked Member States to volunteer that the co-ordination centres
of Member States are in charge of the co-ordination, not only
of their own means but also of the means of other Member States.
The Scottish Fisheries Protection Agency has guided several campaigns
in France and Denmark have guided campaigns. Not all Member States
have the same resources. There are Member States which have much
better resources than others. You have in the North Sea Belgium
which has a very small part of the North Sea. They have not the
same means as, for example, Scotland or England or Denmark, so
there is quite some difference in the number of means. We have
seen that by pooling all these patrol vessels and then we deploy
the patrol vessels just across the borders so we ignore national
borders. We have asked all Member States also for access to territorial
waters. That is still an authorisation to be done by the coastal
Member States. Not all Member States have granted access but most
of them have. Especially in the southern North Sea and the Eastern
Channel it is important because territorial waters take an important
proportion of the areas where fishing activities are taking place
and in that area in the northern North Sea the territorial waters
are not important at all so there we do not need to have access
to territorial waters. If you take an example, Germany has a tiny
part of the North Sea, which is the German part. They have two
very good inspection vessels. If we want to make sure that the
Cod Recovery Plan is properly implemented there is not a lot of
cod fishing going on in the German part of the North Sea so if
we can use these two inspection vessels at a Community level in
the northern North Sea where most activities of cod fishing are
taking place these means are used in a much more rational way
and they are only used in two national waters. In the beginning,
when we had the discussions with Member States, there was the
comment, "Yes, but that means that you are creating holes
in our own system". I think Member States now understand
that it is not a competition between the Agency and a Member State.
They now understand that they have two options: either they do
it themselves in their own waters or we do it together, and if
we do it together it is the Agency which can co-ordinate the whole
operation. That has political advantages because we are also exchanging
inspectors. The inspection vessels operate across the borders.
That gives the industry much more a feeling of a level playing
field. We are trying to operate as uniformly as we can. We exchange
best practices and in this way for an individual Member State
this will have a political advantage because they will not have
their own fishermen on their back who say, "Yes, but you
are much more strict than your neighbour", because this is
a joint operation. We have had quite positive reactions from the
fishing industry even where we found very serious infringements.
It allows us also to discuss with the RAC. Fishermen often complain
about complexity of rules. I think they are right in many cases;
the rules are very complex. Even inspectors sometimes have difficulty
understanding the rules, but on the other hand, if you find infringements,
if they have blinders in their nets, that is not complicated.
If you have a blinder in your net that is pretty deliberate and
it is not very complicated: you put a net inside the other one
to restrict the mesh size. They also have other operations when
they put a chafer around the content and they pull it together
and they fix it with little cords which snap if the net comes
to the surface, which are very deliberate attempts to reduce the
selectivity of the trawl. On the one hand they say yes, the rules
are complicated, which is true, but there are also very deliberate
infringements, so I think if we discover this in a joint operation
that has a political advantage because this is not only one Member
State; it is all the Member States together. It is an advantage
also if there are fundamental problems, because in some cases
this relates to compromises which have been made in December in
the middle of the night. If you take the sole fishery, at a certain
moment the mesh size needed to be increased and the Commission
had proposed 80 millimetres for the mesh size, but in a night
compromise they made a compromise not to adjust the minimum size
of the fish, and so the minimum size of the fish, the small sole,
remained the same, but if you then apply 80 millimetres you are
losing legal fish and there are not many fishermen who want to
lose legal fish because sole is very expensive, so there is an
incentive to use blinders or other restrictions because they can
get a bigger return from legal fish which they take out of the
sea. If we discover these things together the Commission will
have to deal with them because it is not Member State which turns
to the Commission. I think we can turn to the Commission as a
group of Member States around the North Sea and say, "In
this particular case we think that the legislation should be changed".
These are all advantages. We are also more effective if we work
together because the inspection activities become much more coherent
and they therefore become more effective. We can use in the southern
North Sea and the Eastern Channel, because we regularly use four
inspection vessels at the same time and they change areas. The
fishermen have a tendency to follow where the inspection vessel
is and sometimes if it is far away they feel themselves quite
safe, but if you have four inspection vessels which are manoeuvring
just from one area to another they are every time surprised again.
Maybe that is only an effect which we have at the beginning and
later on if they are used to it they adapt, but I think it was
an important experience and Member States felt that doing things
together added to the value. If you ask me which indicators we
need for proper regulation, we are not yet so far, so for the
moment we do not have indicators yet. There was some initial experience.
There was a very good mood among control authorities to do things
together. They felt happy that if they did things together they
could easily accommodate criticism from the fishing industry,
so therefore I think this experience was felt to be more positive,
but we will have to see how it develops further. In terms of how
it develops further, we also should reflect that at sea maybe
it is not the most efficient way to control fisheries. It is very
expensive and we need to think of the landing controls. We did
also quite a number of landing controls with a mixed team of inspectors
but there I think we have to realise that the inspectors who are
working in other Member States are only observers. I think in
the future therefore we have to reflect on whether they should
not have the right to draw up an inspection form. At sea they
have the right because in international waters each inspector,
because we have created Community inspectors with our national
inspectors who are trained in Community and common fisheries legislation,
has the right to draw up an inspection report to ensure security
and continuity of evidence, but if there is an infringement then
again it is the coastal state which has the first right to follow
up the infringement, but the coastal state could also decide to
transfer an infringement to the flag state of the vessel, for
example. There a Community inspector, who is a national inspector
from another Member State, can draw up an inspection report, but
if the same inspector comes into a port and is inspecting in the
port of another Member State he is not mandated to draw up an
inspection report; also not in territorial waters because Member
States are then afraid that this is prejudicing the third pillar
but I think we could live with it if they have no police powers.
That is not necessary but the only right which an inspector should
have is that he is allowed to draw up an inspection report and
then only as a fisheries inspector. There are still many things
which we have to consider. In the Baltic we get a number of complaints
and also in the Baltic we have a lot of experience already. The
Baltic is again a different situation and we have survived in
spite of all the difficulties which we had last year with one
Member State which did not want to comply with Community law,
but we still managed to keep co-operation among all the services,
including the Polish inspection service, and we had some good
experience with that. I think that is the basis of it this year.
We are in discussions with the Member States because the sea campaigns
which we do are not good enough. The main problem is the landing
inspections, and so there also we have already had several meetings
with Member States wherein the Agency is asking Member States
to exchange more inspectors to reinforce the landing inspections,
notably in Poland because there are weaknesses in the system.
This year we also are involved in blue fin tuna. We have set up
a control scheme which is a little bit different because that
is co-ordinated from the Agency and we have these national officials
from France, Spain and Italy who are seconded by their governments
and are working in the Agency. These are national co-ordinators
so every day we share all the information. We get satellite information,
we get information from inspections and surveillance and we then
guide inspection vessels to the areas which at Community level
are the most important for the blue fin tuna fishing activities.
For the moment the fishing has not really started on a large scale
and we also have a lot of co-operation from the Mediterranean
Member States. We have got a lot of means but we have to see how
that continues when it is gets really sensitive in the main part
of the season which starts perhaps in a week's time, and then
the catches will explode, and I think we may reach Community quota
in early June and then it should be stopped very quickly because
if we are one day too late the catches in one day are then huge.
Chairman: Thank you very much. I think what we are
going to have to do, because we have so many questions and relatively
little time, is prioritise the questions and I will start with
Baroness Jones on the culture of compliance.
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