SFPA Presentation to the Joint Oireachtas Committee on Agriculture,
Food and the Marine Tuesday 11 March 2014
Introduction
We welcome the invitation to attend today with the Joint Oireachtas Committee
to discuss Statutory Instrument 3 of 2014, which establishes Ireland’s system
for issuing Points to the licence holders of fishing vessels involved serious
infringements of the Common Fishery policy. We would propose to initially
describe some context for this fishery offences points system. We would then
propose describing the EU obligations, and then how this will be implemented
within Ireland.
Context
First and foremost, the point systems for license holders is just one tool in a
toolbox to deal with non-compliances which might be detected by Sea Fishery
Protection Officers. The SFPA’s legal obligation, and primary strategy is to
promote compliance, and deter non-compliance for the benefit of lawful
fishermen and the support of sustainable commercial fisheries. We want to
spend our days and nights preventing non-compliance, rather than dealing with
non-compliance. Or to put it another way we want to stop the behaviours of
fishermen infringing, not to spend our time catching infringement. So while we
will focus on this system today for dealing with non-compliances, we ask the
committee members to see how these points fit within an overall compliance
strategy which we operate.
A further necessary context here is that of system of sanctions within the
implementation of regulations and the pursuit of compliance. Sanctions for noncompliances are a normal part of implementing regulations in any walk of life.
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Sanctions for infringements serve two main roles; they primarily exist to deter
would-be infringers from infringing in the first instance. Secondarily the
sanctions exist as a form of punishment for the actual infringers. SFPA is
committed to being a fair regulator and that requires a graduated and
proportionate system of sanctions, reflecting the extent of wrongdoing. We are
firmly of the view that there is a substantial difference between the proverbial
sheep and lamb. Sanctions can only serve their primary deterrent purpose if
they are allocated in measured way, sparingly with maximal effect.
By way of final context Points for serious infringements are not something that
should concern the law-abiding fishermen, nor the fishermen who might have a
once-off minor administrative problem. This system is something which will
impact profoundly on those whose fishing vessel license is repeatedly used to
disregard in a deliberate and premeditated manner the laws of our State set
down by these houses. From our work with the Fishing Industry we are aware
of the difference between those who break the rules repeatedly and deliberately
as part of their business strategy and those fishers who break the rules through
poor judgement in a moment of time.
EU Regulations related to a points system for serious infringements
I would like to move on to the reason Ireland has put this system in place.
Ireland as a Member State of the European Union implements the Common
Fisheries Policy where there exist various obligations for fishers; and also for
member state authorities in that regulatory framework.
For the purpose of today’s discussions there are 4 particularly relevant EU
Regulations:
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 European Council Regulation No. 1005 of 2008, on Illegal, Unreported
and Unregulated fishing (The IUU Regulation), and its associated
implementing Commission regulation No. 1010 of 2009
 European Council Regulation No 1224 of 2009 on a community control
system for ensuring compliance with the rules of the common fishery
policy (The Fishery Control Regulation) and its associated implementing
Commission Regulation No. 404 of 2011
These regulations contain general provisions requiring that sanctions for fishery
non-compliances should be effective, proportionate and dissuasive. The Control
Regulation requires Member States to ensure that any enforcement sanction
effectively deprives those responsible of any economic benefit derived from the
infringement, and that sanction take into account the value of the fishery
products and/or the assessment of the impact on the fishery resource and the
marine environment concerned. The Control Regulation additionally sets down
that one component of the required sanctioning system in the case of certain
serious infringements must include the imposition of Points for license holders.
Ireland is meeting this obligation through Stationery Instrument 3 of 2014.
A key part to implementation of this system is to understand what a serious
infringement is. The EU Commission established the concept of a Serious
infringement and a points system for serious infringements with the aim to
ensure compliance with the rules of the Common Fisheries Policy and a level
playing field in all EU waters. Everyone is agreed that there has been an
absence of a level playing field when it comes to applying sanctions to serious
infringements. The European regulations therefore created a defined list of
infringement categories that MIGHT be considered as serious infringement, if
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they are sufficiently grave. Therefore, in order for an infringement to be
considered ‘serious’ it must
1. fall into one of those categories
AND
2. be sufficiently serious.
The competent authority is required to make a judgement of the gravity taking
into account criteria such as the nature of the damage, its value, the extent of the
infringement or its repetition.
The 12 categories of serious infringements which attract Points are listed here.
They include instances whereby a vessel;
(a) Has fished without a valid licence, authorisation or permit issued by
the Flag State or the relevant Coastal State; or
(b) Has not fulfilled its obligations to record and report catch or catchrelated data, including data to be transmitted by satellite vessel
monitoring system, or prior notices under Article 6; or
(c) Has fished in a closed area, during a closed season, without or after
attainment of a quota or beyond a closed depth; or
(d) Has engaged in directed fishing for a stock which is subject to a
moratorium or for which fishing is prohibited; or
(e) Has used prohibited or non-compliant fishing gear; or
(f) Has falsified or concealed its markings, identity or registration; or
(g) Has concealed, tampered with or disposed of evidence relating
to an investigation; or
(h) Has obstructed the work of officials in the exercise of their duties in
inspecting for compliance with the applicable conservation and
management measures; or the work of observers in the exercise of their
duties of observing compliance with the applicable Community rules; or
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(i) Has taken on board, transhipped or landed undersized fish in
contravention of the legislation in force; or
(j) Has transhipped or participated in joint fishing operations with,
supported or re-supplied other fishing vessels identified as having
engaged in IUU fishing under this Regulation, in particular those
included in the Community IUU vessel list or in the IUU vessel list of a
regional fisheries management organisation; or
(k) Has carried out fishing activities in the area of a regional fisheries
management organisation in a manner inconsistent with or in
contravention of the conservation and management measures of that
organisation and is flagged to a State not party to that organisation, or not
cooperating with that organisation as established by that organisation; or
(l) Has no nationality and is therefore a stateless vessel, in accordance
with international law.
Each of the 12 categories is ascribed a defined number of points in the
Implementing rules for the Control regulation.
When an infringement falls into one of those categories, and is deemed to
be sufficiently grave to be regarded as a serious infringement, the
authorities are obliged to allocate that number of points to the license
holder. The number of points to be allocated is set down for each category
and there is no discretion for authorities once an infringement has been
deemed serious. Each serious infringement in one of those categories
attracts a specific number of points between 3 and 7, with a maximum of
12 points for any one inspection. (See Annex for full details)
The deterrent effect on non-law abiding license holders is two-fold. There
is the potential cumulative effect of points. The EU regulations set down
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that when 18 points have accumulated the license should be suspended for
2 months. The vessel would then go back to fish with those 18 points still
on the license, and further points would result in further and longer
suspension periods, specifically at 36 points there should be further 4
months suspension. If the license continues to be associated with serious
infringements the accumulation of 54 points should result in 8 months’
suspension, and 72 points should result in a 1 year suspension. If repeated
serious infringements continue to be associated with that license, despite 4
previous suspensions, then the requirement is that the license be
permanently withdrawn. The EU regulations set out that points remain on
the license for a period of 3 years after the last serious infringement. Thus
even if the points from one serious infringement are almost three years old,
a subsequent serious infringement would both add new points and prolong
the duration of the earlier points for a further 3 years.
There is a specific provision in the EU scheme for licenses with more than 2
and less than 90 points, for two points to be deleted from a licence if the
vessel were to undertake to fish in certain favourable manners. The
voluntary actions which might result in this deletion are listed below
a. The License Holder would volunteer the vessel to use VMS
(electronic satellite based tracking) and ERS (Electronic transmission
of catch) if they had not been subject to that obligation previously.
b. The License holder volunteers the vessel for scientific campaign to
improve gear selectivity
c. The License holder adapts a reduction in 10% fishing opportunity for
1 year
d. The License holder joins an eco-labelling scheme with focus on wellmanaged sustainable fisheries
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One of these could be used to delete two points in a three year period.
In addition to potential suspension or withdrawal for repeat offenders
there is a further deterrent effect for license holder subject to points. The
EU Regulations set out an explicit obligation for points to accompany the
license if it is sold, and for potential sellers to inform would-be purchasers.
In an Irish context this is relevant to the sale of fishing ‘capacity’ and the
sale of any of the capacity associated with a license will bring the number of
points with every portion of that capacity to a new license. Thus there is
likely to be an immediate market effect of devaluation of the potential
market value of capacity with points. Obviously such an effect would only
be realised if any of the capacity associated with the license were to be put
up for sale.
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Irish System for Points to License Holders for Serious Infringements.
We will go on to describe the manner in which the Statutory Instrument
establishes the points system within this State. Some terminology used
within the CFP is the concept of a Flag State, the state in which the vessel is
registered, and the Coastal State, the state which has jurisdiction over the
waters in which the vessel fishes or lands. One basic principle of the CFP is
that the flag state issues license or authorisations, while another basic
principle is that the coastal state has the primary obligation for control and
enforcement within its waters. The matter of points therefore straddles the
obligations of the Coastal State and the Flag State. Arising directly from the
extent of non-Irish fishing in the Irish EEZ, Ireland has fishery control
obligations as a Coastal State which are far in excess of those obligations as
a Flag State. The Statutory instrument 3 of 2014 covers all vessels in
fishing in waters under Irish Jurisdiction, and Irish vessels wherever they
fish, thus three scenarios arise.
 Irish vessels with serious infringement in Irish waters
 Non-Irish vessels with serious infringements in Irish waters
 Irish vessels with serious infringements in non-Irish waters
The process begins with the detection of an infringement by a Sea Fisheries
Protection Officer (usually an officer of the Sea Fisheries Protection
Authority or the Naval Service). This typically takes place during an
inspection at sea or at landing, but might also arise in the context of
administrative cross-checks e.g. fishing logbook data against VMS or fish
sales records. The SFPA is then required to assess if the infringement is
serious, i.e. it is within one of the categories; and is sufficiently grave. If an
infringement is deemed serious the SFPA would then notify the license
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holder of that decision, and the resultant intention to assign the associated
number of points. At this stage, there exists a decision by SFPA, and
associated proposal to apply points to that licence and a notification of that
proposal; no points have yet been assigned. The license holder then can
appeal this decision, within 21 days of the notification by SFPA. The SI
provides for a specific Appeals Officer the administration of which is a
matter for the Department of Agriculture Marine and Food. The appeal
should normally be decided within 28 days. If the appeal is upheld then the
points will not be assigned. If the appeals period expires, or the appeal is
not upheld, then the proposal to assign points stands. The SFPA would
then inform the Licensing Authority of the Flag State of the occurrence of
the serious infringement and the associated need for the assignment of
points to that license.
For non-Irish vessel in Irish waters, they would be subject to the same
procedure, with notification by SFPA to the Flag State authority of the
intention to assign points; notification to the license holder or skipper of
the intention to assign points, then, if exercised, the right of appeal by the
license holder to the Irish Appeals officer. Following that process the SFPA
would inform the Licensing Authority of that flag state of the points to be
assigned to that license. The third category mentioned at the outset, an
Irish vessel in non-Irish waters is also provided for in the SI, whereby SFPA
upon notification by the Coastal State of a serious infringement by an Irish
vessel outside of Irish waters, would inform the Irish Licensing Authority of
the points to be assigned. In that context the natural justice and appeals
considerations rest with the coastal state, and SFPA would be acting
following the expiration/exhaustion of those.
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A key consideration in all of this is the assessment of whether an
infringement within one of the 12 categories is deemed by SFPA to be
serious or not. We would like to refer to the outset of this presentation
whereby we are emphatically of the view that sanctions have maximal
effect if they are used in a proportionate manner. Would-be offenders
should be aware that more serious infringements have more serious
consequences. Accordingly SFPA has drafted procedures to inform this
decision-making process. Our priority is to have a system that minimises
subjectivity, and maximises consistency, fairness and probity, and
ultimately ensures a proportionate outcome. We specifically envisage the
assessment of seriousness to rest with an internal multi-person group,
which might include representatives of the Naval Service and/or might
include other expertise. We have taken legal advice on our draft procedures
and we await final outcomes of those considerations. The SI provides for
publication of guidance around criteria under which the level seriousness
is assessed and we intend doing so once they have been fully developed.
The decision to regard an infringement as serious, and thereby liable to the
assignment of points to the license, is a process that is separate to all other
sanctions that may apply. It may well be the case that, in addition to points
for the license holder a prosecution of the skipper might also be considered
appropriate in the case of serious infringements. That decision would
follow the presentation of a case file to the Director of Public Prosecutions.
Such a prosecution would take its own due course through the Irish courts
and might result in conviction or acquittal of the skipper, but the decision
of applying points to the license holder would stand regardless of such
outcomes.
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Closing Comment
In closing I would like to state that the SFPA welcomes this broadening of
the tools available to us to ensure timely proportionate outcomes in serious
infringements. It is our aim that this tool is applied fairly and to benefit the
Irish Fishing Industry. This system will protect the valuable Irish marine
resource by stopping repeat offenders. We are conscious of the
responsibility this extra tool brings with it and we aim to be transparent,
fair and proportionate in our workings within the system. In a time of
limited resources the implementation is a challenge for the SFPA but we
believe that in the journey to compliance this is an important tool. We
welcome your feedback and comments.
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Excerpt from Commission Regulation EC No. 404 of 2011showing Number
of points to be assigned
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