The electric fishing scheme exposed… again

09 December 2020

Three years after a first legal analysis of the electric electric fishing case, a new article published by Michel Morin — Doctor of Law and Associate Researcher at the Maritime and Oceanic Law Centre (CDMO) of the Law faculty in Nantes —[1] reviewed the scientific advice produced by the International Council for the Exploration of the Sea (ICES). This analysis is highly critical of the approach taken by the Netherlands and the European Commission to promote electric fishing; an approach that the author considers to be contrary to the precautionary and ecosystem approaches, which are both fundamental pillars of the Common Fisheries Policy.[2]

A “surprising” legal arrangement to derogate from a prohibition

In his first article, “Case study on dysfunctions of the European Union: the example of electric pulse fishing“,[3] Michel Morin highlighted the legal tricks that had allowed for the come-back of electric fishing in the form of derogations. He recalled in his new article that the Netherlands had introduced these derogations in a regulation on quotas — against scientific advice — and then used a number of opaque maneuvers to extend them. According to the author, it would have then been possible to challenge their legality before the Court of Justice of the European Union.[4]

A review of ICES and STECF advices

In his new article, Michel Morin analyses the advice of both ICES and the Scientific, Technical and Economic Committee for Fisheries (STECF) issued since 2006. He notes that despite an unfavorable advice regarding the granting of any derogation in 2006, nothing has been implemented to sweep away any doubt about electric fishing. In 2009, ICES observed a lack of transparency around the electric parameters due to “commercial confidentiality”. The author is astonished by this opacity: “Here is a State which submits a request to ICES, wishing most certainly to get a favourable opinion in return. But this State was not able to provide all the data that would have been useful for ICES to issue such an advice in full knowledge of the facts, even though these data are part of the experiments carried out by a research organization under the said State’s control! How is this possible? Is it because this research was also financed by private funds and the related data are considered as private data and the private parties involved in the study refuse to give their consent to disclosure? This can only raise doubts about the neutrality and fairness of the study.”

In 2016, ICES considered that a number of outstanding issues did not allow for an extension of electric fishing, which would be contrary to the precautionary approach. This advice, the latest to date, is still the valid one. The two documents produced by ICES in 2018 and 2020 do not constitute an advice: ICES was asked by the Netherlands to compare the environmental effects of electric trawling with those of traditional beam trawling. This truncated approach supports the hypothesis of the promoters of electric fishing. According to the author, “The fact that the most recent requests for advice addressed to ICES relate to a comparison between two fishing gears indirectly suggests that a request for an opinion on the use of the electric pulse trawl per se had been deliberately avoided. It looks as if the authors of the request were concerned that they would get too negative a reply to support a possible authorization of this fishing gear.”

The author also refers to Ifremer’s critical position published on 14 June 2018 and emphasizes that “the ICES advice was not a favourable assessment of the electric trawl as such but a comparison of the impacts of the two gears. When this advice deals with the long-term impacts of the electric trawl on marine organisms, on benthic fauna or on any other impact on the ecosystem, it is in comparison with the impacts of the traditional beam trawl.”

This approach is also defended by other researchers, e.g. Didier Gascuel, professor at the Institut Agro in Rennes and member of the STECF, who deplored the lack of knowledge at the ecosystem level. According to him, the lack of knowledge makes it necessary to adopt the precautionary approach.

Electric fishing derogations remain unjustified

Morin’s conclusion is indisputable: simply comparing two gears is contrary to the ecosystem approach. Michel Morin concludes as follows: “To take the example of sole fishing in the North Sea, the ecosystem approach involves going beyond a simple comparison between two particular gears. It involves analysing the impact of the various gears used for this fishery on the ecosystem of the North Sea. It is in that context that the simple comparison between the electric trawl and the traditional beam trawl is insufficient. This should include other fishing gear targeting sole. It is only in compliance with this requirement that it can be claimed that the ecosystem approach has been correctly implemented. Full application of the precautionary approach will only be effective if this condition is met.”

According to Michel Morin, there is no reason to reopen the electric fishing issue. Since their inception,  electric fishing derogations have had no scientific justification. It was just a matter of saving an agonizing, fuel-intensive industry.[5] Since then, electric lobbies have been trying to find virtues to justify their destructive enterprise with the credulity — if not the complicity — of the European Commission. “The various scientific sets of advice that correct application of both the precautionary approach and of the ecosystem approach, which are fundamental pillars of the CFP, would not allow for the authorization of this electric fishery in the North Sea through a derogation. This was the casein 2007 at the time of the first derogation and has remained so throughout the period since. This was also the case when the EP and the Council authorized, via the new Regulation 2019/1241 on technical measures, the continuation of this activity until June 30, 2021. And this would still be the same if one or more Member States wished to reopen this file now since, as we have seen, the ICES advice of 2018 and 2020 do not lift the reservations made in 2016.”

Notes and references

[1] M. Morin, ‘Putting electric fishing to the test against the precautionary approach and the ecosystem approach’, available at: https://tradevenvironment.eu/index.php/2020/11/23/2020-8-m-morin-putting-electric-fishing-to-the-test-against-the-precautionary-approach-and-the-ecosystem-approach/

[2] According to Michel Morin: “little account has been taken in this file of either the precautionary approach or the ecosystem approach, even though these approaches have been among the essential standards of the CFP since January 1, 2003”

[3] Annuaire de Droit Maritime et Océanique, T. XXXVI, 2018. English translation available at: https://tradevenvironment.eu/index.php/2018/03/11/m-morin-case-study-on-dysfunctions-of-the-european-union-the-example-of-electric-pulse-fishing/

[4] p.6, Michel Morin writes: “The legality of this authorization in relation to the Treaty (TEC until November 30, 2009 and then TFEU) and to the basic CFP regulation was not challenged before the CJEU but, if this had been the case, solid arguments could have been put forward to do so”.

[5] G. Van Balsfort et J-P. Grandidier – Fuel saving expectations from experiments conducted on towed gears by French and Dutch fleet, p. 42‐45.

Michel Morin provides this reference and explains this: “The authors noted that the economic viability of the beam trawler fleet was in jeopardy and that the time had come to switch to a different fishing method in order to save fuel, by, for example, switching to gillnet or electric pulse trawl.”