ELECTRIC FISHING: EUROPEAN COMMISSION EVADES PROSECUTION

02 February 2021

BLOOM had lodged two complaints[1] with the European Commission against the Netherlands for issuing illegal licences allowing electric fishing. In the absence of a response, our organisation had twice referred the matter to the European Ombudsman against the European Commission for alleged maladministration. Although these complaints twice led the European Commission to admit that the Netherlands was indeed in breach[2], this Member State was not sanctioned, and this without valid explanations. Dutch industry even continues to enjoy illegal derogations. Unfortunately, the Ombudsman is left powerless in the face of the European Commission’s proven collusion with Dutch lobbies. She therefore cannot intervene with regard to our complaints against this institution.

THE OMBUDSMAN JUDGES THE PROCEDURE AND NOT THE SUBSTANCE

The European Ombudsman has decided to close the BLOOM complaints because, in her view: “There has been no maladministration by the European Commission as regards the replies given.” In a detailed report, the Ombudsman states that she cannot judge the substance of the explanations but only the form. She wrote as follows: “While the Ombudsman recognises the importance of the issue raised by the complainant, namely the preservation of marine ecosystems and coastal communities, it is not for her to comment on the substance of the explanation given to the complainant.” Therefore, even if the Commission’s replies are inappropriate, the Ombudsman is unable to act. BLOOM regrets this decision, which feeds a feeling of helplessness in the face of an industry that has knowingly trampled on European law in order to impose a destructive technique, with the active support of the Dutch government.

COMPLAINTS THAT HAVE HAD A POSITIVE IMPACT DESPITE EVERYTHING

These complaints have not been in vain, however. If a Trilogue agreement was reached between the three institutions in February 2019, it is partly because the European Commission had to admit, under pressure from the European Ombudsman, that there was indeed an infringement of European law. Indeed, it had become politically impossible to legalise a fraudulently developed device in the face of a European Parliament determined to obtain its total ban. Another positive consequence was the withdrawal of 62 illegally issued derogations for scientific research[3], although the Netherlands had unilaterally extended these derogations for several months without being concerned by the European Commission. At present, 22 derogations remain, seven of which are still illegal. The Dutch Minister, after taking advice from the electric fishing lobbies, decided to bypass the regulation and proposed a rotation of vessels so that no more than 15 equipped vessels would fish at the same time[4]. This erroneous interpretation of the regulation was validated by the Commission, which informed us of it in a letter dated 29 July 2020.

THE MEDIATOR DEMANDS A DETAILED RESPONSE FROM THE COMMISSION

Before closing our complaints, the Ombudsman asked the European Commission for a detailed report. She wrote as follows: “In its reply to the Ombudsman, the Commission explained that it intends to close the cases, provided that the Dutch authorities submit detailed reports on the checks carried out on the implementation of the measures taken to comply with Regulation (EU) 2019/1241 by the end of 2020. The Ombudsman trusts that the Commission will inform the complainant of its findings, once it has examined these reports. Similarly, the Ombudsman is confident that the complainant will receive a response to her observations before the Commission decides to close the cases in question.” Although she cannot sanction the Commission, the Ombudsman uses a rather harsh tone that sounds like an ultimatum.

COMPLAINTS PENDING PROCESSING

BLOOM reminds that there are other ongoing complaints to the European Commission. The first concerns a complaint against Germany, filed on 20 July 2020, which issued an illegal “electric fishing” licence to the vessel BRA2 “BUTENDIEK” (with Dutch capital). Indeed, Regulation 1241/2019 stipulates that it is forbidden to issue new derogations. In addition, nearly 27,000 citizens have lodged complaints against the still illegal number of derogations held by the Netherlands. These complaints, which are being treated as a multiple complaint, have not yet received a response. Clearly, the Commission is running the clock in order to safeguard the private interests of Dutch industry. Such behaviour is detrimental to our democracy. It feeds citizens’ mistrust in our institutions and makes them feel disempowered.

NOTES AND REFERENCES

[1] Reminder of the facts

2 October 2017: BLOOM lodged a complaint (reference CHAP(2017)03012) with the European Commission against the Netherlands, which at that time held 84 ‘research’ derogations. The regulation allowed them to have 15 licences.

6 November 2018: In the absence of a response to our complaint of 2 October 2017, BLOOM referred the matter to the European Ombudsman, who is responsible for arbitrating cases of maladministration of the European institutions, of transparency and ethics, so that she could establish the serious mismanagement of the European Commission.

18 September 2019: BLOOM has again lodged a complaint against the Netherlands (reference CHAP(2019)02717) with the European Commission. A maximum of 5% of each Member State’s beam trawler fleet may engage in electric fishing before its total ban on 1 July 2021. However, the Netherlands continues to infringe this regulation by retaining 42 licences at the date of the complaint.

5 June 2020: Faced with repeated infringements of European regulations by the Netherlands and in the absence of a satisfactory response from the European Commission to our complaints, BLOOM once again referred the matter to the European Ombudsman and requested sanctions against this refractory Member State.

[2] The European Commission’s confessions

– In a letter received on 1 February 2019, the Commission services indicated that they would propose to the College of Commissioners to formally open a complaint procedure.

– In a letter dated 29 July 2020, DG-MARE considers that the measures envisaged to remedy the illegal use of electric fishing by the Netherlands on the effective implementation of the short-term measures are sufficient grounds for closing our complaints CHAP(2017)03012 and CHAP(2019)02717. Thus, DG-MARE implicitly acknowledges that there had been a infringement of the rules governing the use of the electric trawl until that date.

[3] Although the new regulation on “Technical Measures” stipulates that 5% of the beam trawler fleet may continue electric fishing until 30 June 2021, Fisheries Minister Carola Schouten has not complied with the rules by taking the initiative to extend the 42 illegal licences until 1 June 2019, even though they had expired in February 2019, as Carola Schouten states in her letter to electric trawler fishers. She had also decided to extend the derogations for the 20 “research” vessels until 31 December 2019.

[4] Carola Schouten writes in a letter: “Following consultation with the fishing organisations VISNED and the Dutch Fishermen’s Union, I have decided to allocate the remaining period until 1 July 2021 to the 22 fishing vessels that have been granted an impulse fishing authorisation. The aim is to ensure that the forced reduction in the number of vessels that can be active at the same time will have as proportionate an effect as possible on all electric trawl fishermen authorised to do so. The alternative for reaching the required number of 15 impulse fishing vessels would have been to terminate 7 impulse fishing licences. I did not choose this option as it would have a very disproportionate impact on the electric trawl fishermen concerned.“