Trade in fishery products
Abstract and Keywords
This chapter considers EC law relating to trade in fishery products between Member States, and the legal regime governing trade in fishery products between the EC and third States. The EC is a customs union. That means that not only are there in principle no barriers to trade between EC Member States but also that, as far as trade with Third States is concerned, the EC is to be considered as a single unit. It would seem to follow from the latter proposition that external trade relations, at least as far as trade in goods is concerned, ought to fall within the EC's exclusive competence (under the common commercial policy): that is implied in Article 133 EC, and has been confirmed to be so by the Court.
The EC is a major player in global trade in fishery products.1 During the period 2004–06 inclusive the now twenty-seven EC Member States collectively imported on average each year fishery products to the value of US$18.6 billion from third States, which represented 27.7 per cent of total global imports (excluding imports in intra-EC trade), making the EC the largest importer of fishery products in the world, ahead of Japan (21.3 per cent) and the USA (18.5 per cent).2 The EC was also a modest exporter, exporting on average some US$3.2 billion worth of fishery products a year to third States, making it the world's sixth largest exporter of such products.3 Overall, however, the EC is, and for many years has been, a large net importer of fishery products. During the period 2004–06 the EC was the largest net importer in the world, just ahead of Japan.4 Imports from third States account for about 60 per cent of consumption of fishery products in the EC.5
Apart from trade between the EC and third States, there is also a considerable volume of intra-EC trade in fishery products, facilitated by the fact that under EC law fishing vessels registered in one Member State have the right to land their catches in the ports of any other Member State.6 Over the period 2004–06 such trade represented around US$13.9 billion a year on average.7
In spite of its economic importance, trade in fishery products is the most obscure and least written about aspect of the Common Fisheries Policy (CFP). Indeed, it is questionable whether such trade falls within the scope of the CFP. (p. 462 ) That scope is defined in Article 1 of Regulation 2371/2002 (hereafter, ‘the Basic Regulation’).8 There is no specific reference there to trade. The nearest that Article 1 of the Regulation comes to referring to trade is when it states that the CFP ‘shall cover … the processing and marketing of fishery and aquaculture products’ and ‘shall provide for coherent measures concerning … (g) common organisation of the markets, and (h) international relations’. As will be seen below, the basic Regulation on the common organization of the markets in fishery products9 has provisions dealing with some, though not all, aspects of trade with third States. This suggests that such aspects fall within the concepts of ‘marketing’ and the ‘common organisation of the markets’. The phrase ‘international relations’ is arguably broad enough to include all aspects of trade with third states. While intra-EC trade in fishery products appears to fall outside the scope of the CFP, it would give an incomplete picture were it not dealt with in this chapter.
Accordingly, the next section of this chapter considers EC law relating to trade between Member States, while the following section deals with the legal regime governing trade in fishery products between the EC and third States. The EC is a customs union.10 That means that not only are there in principle no barriers to trade between EC Member States but also that, as far as trade with third States is concerned, the EC is to be considered as a single unit. It would seem to follow from the latter proposition that external trade relations, at least as far as trade in goods is concerned, ought to fall within the EC's exclusive competence (under the common commercial policy): that is implied in Article 133 EC and has been confirmed to be so by the Court.11
2 The legal regulation of intra-EC trade
The EC is not only a customs union, as mentioned above, but also constitutes an internal market.12 The latter is defined by Article 14(2) EC as ‘an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured’. In the same vein, Article 3 EC, which sets out a list of the ‘activities of the Community’, describes an internal market as ‘characterised by the (p. 463 ) abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital’. It follows from those provisions that there is in principle complete freedom of trade in goods between EC Member States (although when new Member States accede to the EC, there may be some temporary restrictions on free trade between those Member States and the old Member States), which is governed by the provisions of the EC Treaty dealing with free movement of goods, as interpreted and applied by the Court. The term ‘goods’ is, surprisingly (given its importance), nowhere defined in the EC Treaty or secondary legislation. That omission has been cured by the Court, which has defined ‘goods’ as ‘products which can be valued in money and which are capable, as such, of forming the subject of commercial transactions’.13 Clearly fishery products fall within that definition. This means that trade in fishery products between EC Member States is governed by the provisions of the EC Treaty dealing with the free movement of goods.14 By trade in fishery products between EC Member States is meant where such products are imported by one Member State from another Member State (or, from the perspective of the latter Member State, where goods are exported from that Member State to the importing Member State). A fishery product is imported where it originates in one Member State (a concept whose meaning is explained below) and enters another Member State, either by being landed at a port in that Member State or by entering the territory of that Member State by road, rail, air or some other form of transport. The Treaty provisions on free movement of goods, in broad outline, prohibit, in intra-EC trade, customs duties and charges having equivalent effect, discriminatory taxation, and quantitative restrictions and measures having equivalent effect. Before exploring how those three sets of prohibitions apply to trade in fishery products, it is necessary to consider more precisely the circumstances in which the EC Treaty's provisions on free movement of goods are applicable.
Article 23(2) EC states that the provisions of the Treaty on free movement of goods apply to ‘products originating in Member States’ and to ‘products coming from third countries which are in free circulation in Member States’. As regards the latter, according to Article 24 EC, ‘products coming from a third country shall be considered to be in free circulation in a Member State if the import formalities have been complied with and any customs duties or charges having equivalent effect which are payable have been levied in that Member State’. That category of (fishery) product is therefore relatively straightforward. The position is less clear-cut in relation to ‘products originating in Member States’, particularly in relation to fishery products. That is because many fishery products originate from fish caught at sea: in the latter situation it may be questioned whether they do, in fact, originate in a Member State.
(p. 464 ) Rather curiously, perhaps, neither the EC Treaty nor secondary legislation directly defines the phrase ‘products originating in Member States’. That origin of goods is defined for the purposes of trade between the EC and third States by the Community Customs Code,15 and that definition may be applied by analogy to intra-EC trade, as was implicitly done by the Advocate General in Pansard. 16 Article 23(1) of the Code provides that goods originate in a country if they are ‘wholly obtained in that country’. Article 23(2) goes on to provide that the expression ‘goods wholly obtained in a country’ includes, inter alia, ‘(e) products of hunting or fishing carried on therein’ and ‘(f) products of sea-fishing and other products taken from the sea outside a country's territorial sea by vessels registered or recorded in the country concerned and flying the flag of that country’. Article 23(3) provides that for the purposes of Article 23(2) ‘country’ includes ‘that country's territorial sea’. There is a degree of ambiguity about the first use of the word ‘country’ in Article 23(2)(f). Does ‘a country's territorial sea’ refer to the territorial sea of any country or only to the territorial sea of the country where the vessel is registered and whose flag it flies?
In Pansard, which concerned a request for a preliminary ruling from a French court as to whether scallops caught by a French vessel in the territorial sea of Jersey (one of the Channel Islands) and landed in France were to be regarded as imports from another Member State,17 the French government (supported by the Dutch government) argued that ‘a country’ in the phrase ‘a country's territorial sea’ in Article 23(2)(f) referred to the country where the vessel concerned was registered. The Advocate General disagreed. In his view ‘a country’ referred to any country.18 The Court found that it was not necessary to consider this question. If the Advocate General's view is correct, fish originate in a Member State for the purposes of the free movement of goods if they are caught within the territorial sea of that Member State, if they are caught by a vessel registered in that Member State in the exclusive economic zone (EEZ) or exclusive fishing zone (EFZ) of another Member State or a third State, or if they are caught on the high seas, but not if they are caught within the territorial sea of another Member State or of a third State. That interpretation of Article 23(2)(f) produces some rather odd consequences. Take the situation where a vessel registered in Member State A takes part of its catch in Member State B's EEZ and part in Member State B's territorial sea (p. 465 ) (something that is quite possible under EC rules on access to fishing grounds, discussed in Chapter 4) and then lands its catch in Member State A. That part of the catch taken in State B's EEZ will not be an import into State A because it originates in State A. However, that part of the catch taken in State B's territorial sea will be an import into State A from another Member State and therefore subject to EC rules on the free movement of goods. Likewise, where a vessel registered in an EC Member State takes part of its catch in a third State's EEZ and part in that State's territorial sea (something that is possible in practice under at least one of the EC's agreements on the access of Community vessels to the waters of third States, discussed in Chapter 5) and then lands its catch in its home Member State, that part of the catch taken in the third State's EEZ will not be an import, whereas that part taken in the territorial sea will be an import and subject to Community rules on trade with third States. It is doubtful whether in practice the national authorities at the port of landing distinguish catches in that way or whether indeed it is practicable for them to do so. The position just described would be avoided if the French government's interpretation of Article 23(2)(f) were adopted, an interpretation that seems a more natural reading of at least the English version of Article 23, whereby the term ‘the country concerned’ in Article 23(2)(f) would refer back to ‘a country’ earlier in the sentence. That interpretation also accords with the way that the original version of the Community Customs Code was drafted.19 It is also supported by the Commission Regulation implementing Regulation 2913/92, namely Regulation 2454/93.20 The latter contains two provisions that govern the origin of goods for the purposes of certain trade regimes. Article 68(1) provides that ‘[t]he following shall be considered as wholly obtained in a beneficiary country or in the Community … (f) products of sea fishing and other products taken from the sea outside its territorial waters by its vessels’ (emphasis added). The natural reading of this provision is that, as regards the Community, ‘its’ refers to the territorial waters of, and vessels registered in, EC Member States. Article 99(1) is identically worded except that in subparagraph (f) the phrase ‘the territorial waters’ appears, rather than ‘its territorial waters’ (emphasis added). The phrase ‘the territorial waters’ in Article 99(1)(f) is ambiguous and could be taken as referring to the territorial waters of any State, with the consequence that Article 99(1)(f) would not cover fish caught in the territorial sea of a third State. However, ‘the territorial waters’ appears to be a drafting error, as the Danish, French, German, and Italian versions of Article 99(1)(f) are identical to Article 68(1)(f), although, compared with the English version, all use ‘their’ rather than ‘its’ (‘their territorial waters’, ‘their vessels’): other language versions have not been consulted.
(p. 466 ) The Advocate General in Pansard supports his view by reference to the purpose of the Code, which is to raise income for the EC in the form of customs duties. He presumably considers that such income would be reduced if fish caught in the territorial sea of a third State by Community vessels were not considered to be imports. That overlooks the fact that under Article 188 of the Code customs duties are not levied on such fish (see further subsection 3.2 below). The Advocate General also appears to overlook the practical difficulties of determining the origin of fish according to the maritime zone in which the catch was taken. Those difficulties would be avoided if the origin of the catch were determined by the nationality of the vessel making the catch rather than its location, which would follow from the French government's interpretation. Nevertheless, whatever problems there may be with the Advocate General's interpretation of Article 23 of the Customs Code, that interpretation is supported by Article 188 of the Code, which, as mentioned, exempts fish caught by a Community vessel in a third State's territorial sea from customs duties: that provision must presuppose that such fish would otherwise be subject to duties, ie that they do not originate in a Member State. The Advocate General's interpretation is also supported by the rules of origin applying to exports from third States to the EC (discussed in subsection 3.2 below) and Article 325 of Commission Regulation 2454/93, which lays down a system of documentation for fish to be considered as originating in the EC: that system applies to ‘the products of sea-fishing caught by a Community fishing vessel, in waters other than the territorial waters of a country or territory outside the customs territory of the Community’. The Advocate General's position also reflects the fact that under international law the territorial sea is considered to be part of the territory of a State,21 as is indeed implicitly recognized in Article 23(3) of the Customs Code (referred to above).
As mentioned above, Regulation 2913/92 is gradually being replaced by Regulation 450/2008. The provision of Regulation 450/2008 that is said by the latter to correspond to Article 23 of Regulation 2913/92 is Article 36.22 The latter only corresponds to Article 23(1) of Regulation 2913/92, however. There is nothing in Article 36 (or elsewhere in Regulation 450/2008) that corresponds to Article 23(2) and (3) of Regulation 2913/92. Article 4(18) of Regulation 450/2008 defines ‘Community goods’ as ‘goods wholly obtained in the customs territory of the Community’, and the latter territory includes, according to Article 3(1), the territorial sea of that territory. Article 133 of Regulation 450/2008 corresponds to Article 188 of Regulation 2913/92 (dealing with fish caught by Community vessels in the territorial sea of third States). Thus, there is no provision in Regulation 450/2008 that deals with the customs status of fish caught by Community vessels outside the territorial sea of a Member State or of a third State. In its proposal for what became Regulation 450/2008, the Commission explained that (p. 467 ) no provisions on rules of origin were included in the draft regulation because international harmonization work under the World Trade Organization (WTO) Agreement on Rules of Origin had not been completed at that time: such provisions would subsequently be included in legislation implementing Regulation 450/2008.23 Until such legislation is adopted, Regulation 2454/93 will govern the situation, in particular Articles 68, 99, and 325 (discussed above).
The question as to the origin of fish for trade purposes has also arisen in the context of the, presumably rather unusual, situation where fish are caught by a vessel registered in a third State and the nets with the catch still in them are then transferred to a Community vessel. In Commission v United Kingdom the Court held that in such circumstances the catch does not originate in a Member State but in the third State concerned.24 The same reasoning would appear to be applicable to the rather more common situation of transhipment, a matter that is not addressed by the Community Customs Code and its implementing legislation. If so, fish caught by a vessel registered in a third State and transhipped to a Community vessel would not be of Community origin. That would be so regardless of where the transhipment took place; otherwise by transhipping to a Community vessel in the territorial sea or port of a Member State, a third State vessel would easily be able to avoid the custom duties that would otherwise be payable. While the Community Customs Code does not deal with the issue of transhipment, it does cover the situation where catches are transferred from the vessel making the catch to another vessel for processing. Article 23(2)(g) of Regulation 2913/92 (and Articles 68(1)(g) and 99(1)(g) of Regulation 2454/93) provide that where goods are produced on board a factory ship registered in a Member State from fish caught by a Community vessel, they will be of Community origin: if either the factory ship or the catching vessel is not registered in a Member State, the processed goods will not be of Community origin.
To sum up: fishery products will ‘originate’ in a Member State for the purposes of EC law on the free movement of goods, if: (a) they are wholly produced on the territory of that Member State (for example, from aquaculture, inland fishing, or the processing of fish either originating in that Member State or, if imported from a third State, in free circulation in that Member State); (b) they are caught by Community fishing vessels registered in that Member State in (i) the internal waters or territorial sea of that Member State, (ii) the EEZ or EFZ of that or any other Member State, (iii) on the high seas or (iv) the EEZ or EFZ of a third State; or (c) they are produced on board a factory ship registered in that Member State from fish caught by a Community fishing vessel registered in the same Member State. Fishery products will not originate in a Member State if transhipped to a vessel registered in that Member State from a vessel registered in another Member (p. 468 ) State or a third State. There is uncertainty as to the status of origin of fish caught by Community fishing vessels registered in a Member State in the territorial sea of another Member State or a third State.
2.2 Customs duties and charges of equivalent effect
As mentioned above, the free movement of goods provisions of the EC Treaty contain three sets of prohibitions designed to achieve free trade between Member States. First, Article 25 EC prohibits customs duties on imports and exports between Member States and ‘charges having equivalent effect’. While the concept of customs duties is well known and straightforward, that of ‘charges having equivalent effect’ is much less so. There are a number of significant terms relating to the free movement of goods used in the EC Treaty (including ‘charges having equivalent effect’) for which no definition is provided either in the Treaty or secondary legislation. In all those cases the Court has provided definitions that it has applied consistently over many years. In the case of ‘charges having equivalent effect’, the term has been defined by the Court to mean ‘any pecuniary charge, however small and whatever its designation and mode of application, which is imposed unilaterally on domestic goods by virtue of the fact that they cross a frontier, and which is not a customs duty in the strict sense … even if it is not imposed for the benefit of the State, is not discriminatory or protective in effect and if the product on which the charge is imposed is not in competition with the domestic product’.25 There are, however, two types of charge that may be levied by a Member State on imports or exports that will not be regarded as ‘charges having equivalent effect’ to customs duties and so will not fall foul of Article 25. The first is a charge for a service that is of direct benefit to the trader and that represents no more than the cost of that service.26 The second is a charge for the inspection of goods crossing a frontier that is required by EC law, provided that the fee for such an inspection does not exceed its actual cost, that the inspection is mandatory and uniform for all the products concerned in the EC and is prescribed by EC law in the general interest, and that such inspection promotes the free movement of goods, in particular by neutralizing obstacles to trade that could arise from unilateral inspections.27 As far as fishery products are concerned, there is EC legislation that requires the inspection of some such products.28
(p. 469 ) Only two cases concerning Article 25 EC that relate to fishery products appear to have come before the Court. In United Foods 29 the Court considered that Belgian legislation imposing a levy to cover the cost of health checks on imported fish was contrary to Article 25 because that levy lacked ‘objective justification, in accordance with particular criteria concerning the nature or condition of the goods, which [were] not comparable to the criteria used in fixing pecuniary charges on domestic products of the same kind’.30 In Koornstra 31 a Dutch regulation imposed a levy on Dutch vessels transporting shrimp in order to finance the purchase and operation by the Fish Marketing Board of shrimp sieves and peelers. The levy was payable whether the shrimp were landed in the Netherlands or another Member State. In a request for a preliminary ruling the Court was asked whether the levy constituted either a charge of equivalent effect to a customs duty, contrary to Article 25 EC, or discriminatory taxation, contrary to Article 90 EC (discussed in subsection 2.3 below). Having noted that the levy imposed a heavier burden on vessels landing shrimp in another Member State (ie for export) than in the Netherlands because they received no benefit from the equipment financed by the levy, the Court held that it was for the national court to determine whether the levy fell within Article 25 or Article 90 in the light of all the circumstances. If ‘the advantages stemming from the use of the revenue’ from the levy ‘fully offset the burden borne’ by vessels landing shrimp in the Netherlands (the ‘advantages’ to which the Court refers are presumably the benefits to such vessels of the equipment purchased out of the levy), the levy would be a charge equivalent to a duty on exports, contrary to Article 25 EC. If, on the other hand, the advantages referred to ‘offset only partially the burden borne’ by vessels landing shrimp in the Netherlands, the levy would constitute discriminatory taxation contrary to Article 90 EC (presumably because while both those landing shrimp in the Netherlands and those landing elsewhere would bear a financial burden, that burden would fall less heavily on those landing shrimp in the Netherlands).32
2.3 Discriminatory taxation
The second set of prohibitions designed to ensure free movement of goods is that concerned with discriminatory taxation. If imported goods are taxed more heavily than domestic goods, the latter will gain a competitive advantage, thus undermining the idea of the EC as a single market. Article 90 EC aims to prevent that. Article 90(1) provides that ‘no Member State shall impose, directly or indirectly, on the products of other Member States any internal taxation of any kind in excess (p. 470 ) of that imposed directly or indirectly on similar domestic products’. That provision thus prohibits both directly and indirectly discriminatory taxation. There is direct discrimination if a tax is levied only on imported goods and not on ‘similar domestic products’. According to the Court, products are similar if they have similar characteristics and meet the same needs of consumers;33 or, put another way, if they can be substituted interchangeably. There is indirect discrimination if a tax, although applicable to all goods of a particular kind, falls in practice more heavily on imported goods than domestic products. However, indirectly discriminatory tax will not be contrary to Article 90(1) if based on objective criteria that are designed to achieve economic policy objectives that are compatible with EC law and applied so as to avoid discrimination.34 Article 90(2) prohibits the taxation of imported goods which, even if not ‘similar’ to domestic goods, are in some degree of competition with them, if such a tax is of ‘such a nature as to afford indirect protection’ to domestic goods.35 The only case concerning Article 90 and fishery products appears to be Koornstra (discussed above).
2.4 Quantitative restrictions and measures of equivalent effect
The final set of provisions of the EC Treaty designed to ensure free movement of goods between Member States deals with quantitative restrictions and measures of equivalent effect. Article 28 provides that ‘[q]uantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States’, while Article 29 contains a similar prohibition in respect of exports. The Court has defined quantitative restrictions as ‘measures which amount to a total or partial restraint of … imports, exports or goods in transit’.36 ‘Measures having equivalent effect’ to quantitative restrictions have been defined by the Court, in what is known as the Dassonville formula, as ‘all trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade’.37 That formula is extremely wide and is capable of catching a large number of national measures relating to trade, production, and marketing. It includes not only overtly protective measures or measures that apply solely to imports or exports (which are known as distinctly applicable measures), but also measures that apply equally to imported (or exported) and domestic products alike, often for apparently beneficial purposes (such as regulating (p. 471 ) the quality of goods), but which may nevertheless have a restraining effect on intra-Community trade. The latter kinds of measures are known as indistinctly applicable measures.38
There are two exceptions to the prohibition in Article 28. The first, which also applies to Article 29, is contained in Article 30, and reads as follows:
The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archaeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States.
The Court has added that for a measure to be justified under Article 30 it must be necessary to achieve the objective desired (in terms of the grounds listed in Article 30) and it must not be possible to achieve that objective by means that are less restrictive of intra-EC trade (the principle of proportionality).39 Furthermore, the matter with which the national measure is concerned must not be governed by specific EC legislation intended to harmonize the area in question, at least where harmonization is total.40
Of the various grounds listed in Article 30, the one that in practice is likely to be most relevant to trade in fishery products is the protection of the health and life of humans and animals. However, as indicated, that ground cannot be invoked if EC legislation totally harmonizing national laws in that field already exists. In the case of fishery products, there is, in fact, a considerable body of legislation on public health. (There is some discussion of that legislation in subsection 3.2 below, but it is beyond the scope of this book to attempt a comprehensive discussion.) Where there is no comprehensive EC legislation in existence, a Member State may invoke the public health exception in Article 30, but the Court has held that to do so, the Member State must be able to produce convincing scientific evidence of the threat to health that the measure in question seeks to counter and to demonstrate that the measure meets a real need.41
The second exception to the prohibition on measures having equivalent effect to quantitative restrictions on imports is the so-called ‘rule of reason’ developed by (p. 472 ) the Court in the Cassis de Dijon case, so known because of the eponymous liqueur at the centre of the case. The Court held that:
In the absence of common rules … [o]bstacles to movement within the Community resulting from disparities between the national laws relating to the marketing of the products in question must be accepted in so far as those provisions may be recognized as being necessary in order to satisfy mandatory requirements relating in particular to fiscal supervision, the protection of public health, the fairness of commercial transactions and the defence of the consumer.42
Thus, for a trading measure to satisfy the rule of reason it must relate to a ‘mandatory requirement’, be ‘necessary’, and not relate to a matter covered by a Community harmonization measure (‘the absence of common rules’). A national measure that satisfies those requirements will not contravene Article 28, even though it appears to fall within the Dassonville formula. The Court has added to the (non-exhaustive) list of mandatory requirements set out in Cassis de Dijon in a number of later cases, notably by including protection of the environment.43
At first sight there appears to be a substantial degree of overlap between Article 30 and the rule of reason. One of the most frequently invoked grounds under Article 30 (protection of public health) is the same as one of the mandatory requirements of the rule of reason, and both Article 30 and the rule of reason require national trading measures to be necessary and not relate to a matter totally covered by an EC measure. However, in practice the two serve different purposes. Article 30 is used in practice by the Court to test the lawfulness of a distinctly applicable measure (ie a measure applying solely to imports or exports) that falls within the Dassonville formula of being equivalent to a quantitative restriction, whereas the rule of reason is used by the Court to judge the lawfulness of an indistinctly applicable measure (ie one applying equally to imported and domestic products alike): if such a measure satisfies the rule of reason it will not contravene Article 28.44
About a dozen cases concerning fishery products and the prohibition on quantitative restrictions and measures of equivalent effect have come before the Court. Three cases concern catch quotas. In those cases it was argued that such quotas breach Article 29 by restricting the amount of fish that may be exported. The Court has consistently rejected such arguments, taking the view that catch quotas introduced for reasons of fisheries conservation fall outside the scope of Article 29 because they are concerned with production, whereas the prohibition on quantitative restrictions and equivalent measures is concerned with a different stage of the economic process, namely marketing: in any case, quotas are designed to increase supplies to consumers by restricting production in the short term in (p. 473 ) order to lead to a sustainable optimum yield in the long run.45 The Court's consistent approach in those cases is obviously to be welcomed.
The remaining cases all involve what were fairly obviously breaches of Article 28, with the question in most of the cases being whether those breaches were saved by the exception in Article 30. A first group concerns bans or restrictions on the landing of catches. In Commission v Ireland the Court found a complete prohibition imposed by Ireland on the landing in Ireland of catches by British vessels unless 75 per cent of the crew were EC nationals and ordinarily resident in the UK (which was designed to address the problem of quota hopping, discussed in Chapter 4) was contrary to Article 28.46 Ireland did not attempt to justify the measure under Article 30. Pansard (discussed above) concerned a prohibition on the landing of scallops in France (wherever caught) that was designed to reinforce a ban on scallop fishing in France's territorial sea during the summer months. Pansard was prosecuted for landing scallops caught in Jersey's territorial sea during the prohibited period but argued in her defence that the landing ban was contrary to EC law. While the Court discussed the issue purely in terms of the scope of the competence of the Member States to adopt fisheries conservation measures (see Chapter 4), the Advocate General also discussed the matter from the point of view of free movement of goods. He concluded that the prohibition on landings breached Article 28. Although the prohibition was for the protection of the health and life of animals within the meaning of Article 30, it was not justified by that Article because it was disproportionate as it applied to scallops wherever caught, whereas the ban on catching scallops applied only to France's territorial sea.47 The third case of the group concerned with landing bans is Commission v United Kingdom .48 That case related to the validity in EC law of a number of national measures adopted by the UK, one of which was a restriction on the number of ports at which Irish fishermen could land herring caught in British waters. The Commission argued that that restriction was a breach of Article 28. The Court did not find it necessary to discuss that point, but the Advocate General appeared to favour the Commission's argument.49 The question of whether a Member State may restrict the number of ports at which catches may be landed for the purpose of facilitating the enforcement of fisheries conservation measures (which was the motive for the UK's measure at issue in Commission v United Kingdom ) has since been clarified by the Community legislature. Regulation 2847/93 (hereafter, ‘the Control Regulation’) (discussed extensively in Chapter 4) recognizes that as part of its powers to (p. 474 ) adopt national measures going beyond the requirements of that Regulation, a Member State may designate (and hence restrict the number of) ports at which catches must be landed, subject to the right of the Commission to adopt limited and temporary exceptions.50
A second group of fisheries cases where there was clearly a breach of Article 28 all concerned bans imposed on imported fish for health reasons, and turned on whether such bans were justified under Article 30. In Hahn, a preliminary ruling, the Court held that a ban by Austria on imports of smoked salmon from Denmark because such imports contained listeria was saved by Article 30 because it was scientifically justified and proportionate.51 On the other hand, in Commission v Italy the Court held that a ban on the import of fish with dead or devitalized nematode larvae as a result of prior treatment was not justified under Article 30 because Italy had failed to prove that the fish were a threat to health.52 In Commission v Germany a prohibition imposed by Germany on imported live crayfish (except where licensed) because of the risk of spreading disease to native crayfish, of which hardly any were left in the wild, was found to be disproportionate, and therefore not justified by Article 30, because the same objective (to prevent the spread of disease) could have been achieved with less restrictive measures.53 In Motte, a preliminary ruling, the Court left it to the national court to determine whether Belgian legislation prohibiting the addition of colourants to potted roe met the requirements of Article 30 in terms of scientific justification and proportionality.54
A final group of cases concerns inspections of imported fish on health grounds. Such inspections breach Article 28 unless authorized under EC legislation, but are in principle justifiable under Article 30. In United Foods (one aspect of which was discussed above), the Court, in response to a request for a preliminary ruling, considered that Belgian inspections of imported fish for health control purposes appeared to constitute a disguised restriction on trade, contrary to Article 30, because of the length of notice that the importer had to give of import, the fact that inspections could take place only at certain locations and times, and the fact that the fish had to undergo inspection even if they had already been inspected in their State of origin. A definitive determination was, however, a matter for the national court.55 In the other case in this group, Commission v Italy , the Italian authorities prohibited imports of fish from other Member States that contained nematode larvae (as mentioned above) and inspected consignments of fish to reinforce that prohibition. The Court found that such inspections were in principle permitted (p. 475 ) under Article 30, but insofar as Italy had carried out systematic checks on imported fish that were accompanied by a health certificate from the exporting State to the effect that the fish were free of nematode larvae, its actions were not justified under Article 30. Such systematic checks were disproportionate; spot checks would have been sufficient.56
Finally, it is worth moving briefly from decided cases to the realms of speculation. If a Member State were to seek to ban imports of fish from another Member State on the ground that such fish had been taken in contravention of applicable EC measures to conserve fish stocks or, pursuant to Article 6 EC, to minimize the impact of fishing on the wider marine environment (hereafter, in this subsection, ‘EC measures’), would that be contrary to EC law? The Court has held that measures adopted for reasons of fisheries conservation (whether at national level or at EC level) do not constitute measures having an effect equivalent to quantitative restrictions because such measures aim to ensure a sustainable yield from fishing in the long term (see case law cited at footnote 45). It is arguable that the same should be said of actions, including import bans, intended to enforce fisheries conservation measures. That said, any import ban adopted at the national level for that purpose would presumably have a greater degree of protection from a challenge based on trade restriction arguments if it were to have been adopted pursuant to a power or duty established by EC legislation. Therefore, the following analysis will consider briefly EC legislation adopted under the CFP that requires or allows import bans on fishery products in the context of intra-EC trade.
A Member State is not explicitly authorized by EC legislation as currently applicable to ban the landing in its ports of catches taken by the vessels of another Member State. However, it is implicitly authorized to do so by the Control Regulation. Under Articles 31(1)–(3) and 32(1) of that Regulation a Member State must take ‘appropriate’ measures, including by administrative action or criminal proceedings, where the rules of the CFP have not been ‘respected’: the sanctions ‘arising from [such] proceedings’ may include the seizure of prohibited catches. (Those provisions also apply in respect of the importing Member State's own vessels, so what is being considered here is in fact an indistinctly applicable measure.) It would seem to follow from Articles 31 and 32 of the Control Regulation that a Member State may temporarily hold a catch that the vessel of another Member State wishes to land where the first Member State (the port Member State) suspects that the catch has been taken in breach of EC measures (for example, because some of the fish are undersized or of a species for which the flag Member State does not hold a quota) until the port Member State's suspicions are confirmed in administrative or criminal proceedings or proceedings are transferred to the flag Member State. Where the port Member State's suspicions are confirmed, the catch may be confiscated. There will be some reinforcement of the above provisions of the Control Regulation from the beginning of 2010, when (p. 476 ) Regulation 1005/2008 (hereafter, ‘the IUU Regulation’), which is aimed at combating illegal, unreported, and unregulated (IUU) fishing, takes effect.57 Under Article 37(5) of that Regulation a Community vessel on the Community IUU vessel list may not enter the port of another Member State except for reasons of force majeure or distress; and if it does so, its catch must be confiscated. Alternatively a Member State may authorize the entry of such a vessel into its ports on the condition that catches on board are confiscated. Under Article 43(1), where a Member State suspects a natural person of having committed, or finds her/him in the act of committing, a ‘serious infringement’ (defined as including, inter alia, activities that constitute IUU fishing within the meaning of Article 3 of the Regulation58), or suspects a legal person of being liable for such an infringement, that State must start a full investigation of the infringement and take immediate enforcement measures such as seizure of the catch and fishery products. Articles 37(5) and 43(1) require (or in the case of Article 43(1), at least allows) a Member State, in effect, to ban the landing of catches by vessels of another Member State in the circumstances there specified.
The previous paragraph has considered EC legislation adopted under the CFP that requires or allows, explicitly or otherwise, a Member State to ban the landing in its ports of catches taken by the vessels of another Member State. It is also necessary to consider the situation whereby fishery products from one Member State are imported into another Member State by some means other than being landed in the latter's ports (eg by air, rail or road). There is currently no EC law that authorizes a Member State to refuse such imports where the fish from which they have been produced have been caught in contravention of EC rules. The IUU Regulation, when it comes into operation, will not in principle change that position, since, aside from the landing of catches in port, it will regulate ‘importation’, a term defined in Article 2(11) of the Regulation as meaning ‘the introduction of fishery products into the territory of the Community’. The authors take this phrase to refer to the introduction of fishery products from outside the EC, as opposed to products that originate in the EC. It may be recalled from the discussion in subsection 2.1 above that, broadly speaking, fishery products originate in the EC if they have been caught by a Community fishing vessel anywhere, with the possible exception of the territorial sea of third States. Consequently ‘importation’ covers only products from third States (including products caught by third State vessels and landed directly in a Member State port) and possibly the relatively small amount of fishery products caught by Community vessels in the territorial sea of third States.
Despite the exclusion from the scope of the IUU Regulation of imports from Member States (other than in the form of catches landed by a vessel registered in (p. 477 ) one Member State in the ports of another), there are two provisions of the IUU Regulation that somewhat obliquely, and in certain circumstances, might permit a Member State to prohibit imports from another Member State. The first is Article 39, which provides that nationals of Member States shall not ‘support’ IUU fishing and that Member States must take ‘appropriate action’ with regard to such nationals. One could argue that ‘supporting’ IUU fishing could include exporting the products of IUU fishing, and that ‘appropriate action’ could include banning the import of such products. However, the examples of ‘support’ given in Article 39(1) suggest that that term is not intended to cover support in the form of selling and trading fishery products. The second provision that might permit a Member State to prohibit imports from another Member State is Article 43(1), which, as noted above, requires a Member State to take immediate enforcement measures (which may include seizure of the catch) in cases of the suspected or actual commission of a ‘serious infringement’. The latter term includes, inter alia, ‘the conduct of business directly connected to IUU fishing, including the trade in/or the importation of fishery products’.59 It is not altogether clear that the reference to ‘trade’ includes intra-EC trade, since as seen, ‘importation’ has, at best, very limited application to imports from Member States.
It is difficult to see how, in practice, a Member State could prohibit imports of fishery products derived from fish caught in breach of EC rules from other Member States (other than when landed by Community fishing vessels in its ports) without some form of catch documentation scheme. However, any attempt by a Member State unilaterally to introduce such a scheme for imports from other Member States is likely to be condemned by the Court as disproportionate (since under the Control Regulation the Member State of export should have prevented the landing in its ports of catches taken in breach of EC rules60) and perhaps also as amounting to arbitrary discrimination and a disguised restriction on trade. Given that fishing that breaches EC rules falls within the definition of IUU fishing in the IUU Regulation61 and that recital (5) of the Regulation states that the EC ‘should substantially enhance its action against IUU fishing and adopt new regulatory measures designed to cover all facets of the phenomenon’ (emphasis added), it is perhaps a matter of regret that the catch certification scheme that the IUU Regulation introduces for imports from third States into the EC (discussed in subsection 3.2 below) does not apply to intra-EC trade. Recital (9) justifies that position by pointing out that the provisions of the Control Regulation, especially on the monitoring of catches, establish a ‘comprehensive system designed to monitor the legality of catches from Community fishing vessels’. That justification would have (p. 478 ) some force if the Control Regulation was strictly applied by all Member States, but, as was seen in Chapter 4, that appears still to be some way from being the case.
So far the discussion has concerned the possibility for one Member State to ban imports of fishery products from another Member State where such products have been taken in breach of EC measures. Under Articles 8 and 9 of the Basic Regulation a Member State may, in certain circumstances, adopt national measures applicable to the vessels of other Member States (on which, see Chapter 4). These measures may apply to conservation of fish stocks or protection of the wider environment from fishing activities. May a Member State ban imports of fishery products from another Member State where such products have been taken in breach of national measures adopted by the first Member State? Arguably, the points made above in the context of EC measures—about the scope for applying the case law cited at footnote 45 to enforcement actions—are equally applicable in the context of national measures (cf the Advocate General’s approach in Pansard—see above). Where the imports took the form of fishery products being landed directly in port, it is arguable that the points made above regarding Article 31(1)–(3) of the Control Regulation in the context of EC measures should apply likewise to national measures adopted under the CFP. However, where the act of import was by another means, the same kind of considerations would apply as in the case of a Member State attempting to prohibit imports of fishery products taken in breach of EC measures, as discussed above.
3 The regulation of trade between the EC and third States
The legal framework regulating trade in fishery products between the EC and third States has a number of components. First, there is the basic Regulation on the common organization of the markets in fishery products (hereafter, ‘the Markets Regulation’)62 and measures adopted thereunder. As was explained in Chapter 6, there has been a succession of such Regulations since 1970. Each has contained a title dealing with trade with third States (Title V in the current Regulation). Over time the provisions in that title have gradually decreased in number and become less complex. That development is largely due to the need to comply with various agreements concluded in 1974 within the framework of the WTO (of which the EC and all its Member States are members). Article 40 of the Markets Regulation provides that it is to be applied so that it takes account at the same time of the objectives both of the CFP and of the common commercial policy (the objectives (p. 479 ) of the latter being set out in Article 131 EC). The second component of the legal framework regulating trade in fishery products between the EC and third States is the general body of EC trade law, particularly that concerned with customs duties, dumping, and subsidies, which applies as much to trade in fishery products as any other kinds of goods. The third component is a number of trade and commercial agreements between the EC and individual third States or groupings of third States (such as the African, Caribbean, and Pacific (ACP) States) that contain provisions on trade in fishery products. The fourth component is the general body of international trade law, particularly that stemming from the WTO, which provides an overarching framework within which EC trade with third States must operate. For the reasons explained in Chapter 5, trade and commercial agreements with third States and agreements concluded within the framework of the WTO are part of EC law. However, as also explained in Chapter 5, the provisions of those agreements cannot be invoked by natural or legal persons in proceedings before national courts to challenge the validity of acts of the EC institutions. A further component of the legal framework regulating trade in fishery products between the EC and third States is the Convention on International Trade in Endangered Species of Wild Fauna and Flora,63 which regulates trade in, inter alia, a number of commercially exploited aquatic species. That Convention and its implementation by the EC are discussed in Chapter 5, and therefore are not considered further in this chapter.
The law regulating the import of fishery products from third States into the EC is quite different from that regulating the export of such products from the EC to third States. Each is therefore considered separately.
3.2 The regulation of imports
Since its inception the EC has never been self-sufficient in fish and therefore has always been a net importer of fishery products.64 It is thus obviously not in the interests of consumers for the EC to discourage the import of fish, provided that it is of good quality: to the latter end, there is EC legislation (discussed below) that imposes health and quality controls on imported fish. Processors also require a liberal import regime for many kinds of fish used as the raw material in fish processing. While the unrestricted import of fish may be in the interests of consumers and many processors, it is not necessarily in the interests of EC fishermen. The EC uses a number of forms of regulation—customs duties, reference prices, anti-dumping and countervailing duties, and safeguard measures—that influence the price and/or volume of imported fish in order to prevent excessive (p. 480 ) damage to EC fishermen by competition from imports. It is also worth recalling here a non-trade measure to aid EC fishermen, the compensatory allowance for tuna producers, discussed in Chapter 6, which is designed to provide some protection to EC tuna fishermen from fluctuating prices due to conditions on the world market.
It is EC policy to give products caught by EC fishermen priority on the EC market by means of the forms of regulation just mentioned.65 The Court has, however, emphasized that such Community preference is a matter of policy, not a legal requirement: EC law does not prevent the adoption of tariff measures that increase competition for EC producers.66 Import regulation for a rather different objective has developed in recent years with the EC seeking to encourage sustainable fishing by prohibiting the import of fishery products into the EC that are the product of IUU fishing.
In this section each of these different forms of regulating imports is examined in turn, beginning with measures to provide some protection to EC fishermen from imports. At the outset it should be borne in mind that, just as with intra-EC trade, import from a third State into the EC may be by means not only of carriage by road, rail, sea, or air, but also of a third State vessel directly landing its catch at a designated port of an EC Member State, provided that certain conditions are observed.67 A new set of conditions will have to be met from the beginning of 2010 when the IUU Regulation takes effect.68 Under that Regulation a third State fishing vessel wishing to access the port of a Member State (and only designated ports may be accessed) will be required, inter alia, to notify the Member State whose port it wishes to use at least three days before its estimated time of arrival, to carry a catch certificate validated by its flag State to the effect that its catches carried on board have been made in accordance with all applicable laws and regulations, and to submit a declaration indicating the amount of fish to be landed and when and where it was caught.69 Further measures applying to third State vessels under the IUU Regulation are discussed below.
A first means of protecting EC fishermen is to impose customs duties on imported fish, thereby increasing its price and reducing the possibility of EC fishermen being undercut by cheaper imports. As the EC is a customs union, only the EC, (p. 481 ) and not its individual Member States, may impose customs duties on imports. Nor may Member States impose charges of equivalent effect to customs duties on imports.70 The products subject to such duties and the level of duties—the common customs tariff (CCT)—are laid down for all products (including fish) in Part Two of Annex I to Regulation 2658/87.71 Since the CCT is frequently revised, an amended version of Annex I is adopted each year. In general customs duties are higher on processed fishery products than on unprocessed fish, thus reflecting the interests of EC fish processors in particular. The CCT applies to goods of non-Community origin. As was seen in subsection 2.1 above, Article 23 of the Community Customs Code provides that fishery products will be of non-Community origin if they were caught by a non-Community vessel outside the territorial sea of an EC Member State or produced on a non-Community factory ship. Where a Community vessel lands its catch in a third State for processing and such processing ‘result[s] in the manufacture of a new product or represent[s] an important stage of manufacture’, any such processed fish that is subsequently exported to the EC will also be of non-Community origin.72 According to the Advocate General's interpretation of Article 23 of the Community Customs Code in Pansard (see subsection 2.1 above), fish will also be of non-Community origin if they are caught by a Community vessel in the territorial sea of a third State (although as pointed out in subsection 2.1 above, there are counter-arguments to that interpretation). As mentioned in subsection 2.1, the current Community Customs Code is in the process of being replaced.
There are, however, many cases where the customs duties set out in the CCT do not apply. First, because the EC is not self-sufficient in fish, duties are frequently reduced or suspended autonomously by the EC, for longer or shorter periods, in order to encourage increased supplies of fish for consumers and especially processors. By an ‘autonomous’ reduction or suspension is meant one that is not required as a consequence of a treaty to which the EC is a party. Autonomous reductions and suspensions are provided for by Article 28 of the Markets Regulation. The latter reduces or suspends duties on various kinds of fish (listed in Annex VI to the Markets Regulation) indefinitely in order to ensure an adequate supply of raw material for EC processors. In order not to jeopardize the various intervention measures applicable to EC fishermen (discussed in the previous chapter), imports of the fish listed in Annex VI must comply with the relevant reference price (explained below) if they are to benefit from the reduced or suspended duties. If, despite such compliance, there is a ‘serious market disturbance’, the Council, acting on a proposal from the Commission, may reinstate the full customs duty due under the CCT for the product (p. 482 ) concerned.73 In addition to reductions and suspensions of customs duties under Article 28 of the Markets Regulation, there are further autonomous reductions or suspensions by the Council from time to time for specified quotas74 of particular products (usually those in more direct competition with EC fishermen) for certain periods of time, provided that the declared customs value of the products is at least equal to the reference price.75 Once the quota is exhausted, the full duty becomes payable. In a report on the implementation of the Markets Regulation published in 2006, the Commission observed that the arrangements just described appeared insufficient to meet the needs of processors, but that it would be inappropriate to change the system until the then ongoing WTO negotiations on market access were concluded.76 At the time of writing such negotiations had still not been concluded.
A second reason why the full customs duties under the CCT are not payable on many imports of fishery products is because of provisions in various trade agreements between the EC and third States. Such agreements include bilateral trade agreements with a number of developing States, such as Algeria,77 Chile,78 Mexico,79 Morocco,80 (p. 483 ) South Africa,81 and Tunisia,82 under which imports of fishery products from those States enter the EC at nil or reduced duty (although in some cases a quota is set for the amount of imports that enjoy such tariff concessions); the Agreement on the European Economic Area (EEA),83 under which customs duties are reduced or abolished for many (but by no means all) fishery products from Iceland, Liechtenstein, and Norway; an agreement with the Faroe Islands under which duties on nearly all imports of fishery products from the Faroe Islands are abolished;84 and a protocol concerning Greenland under which duties on all fishery imports from Greenland are abolished.85
The Cotonou Agreement, between the seventy-nine ACP States and the EC,86 likewise provides for a departure from the customs duties applicable under the CCT. Article 36(3) and Annex V, which continue the position applying under the predecessor Lomé Conventions, provide that fishery products from the ACP States may enter the EC duty-free. However, the Cotonou Agreement requires its parties ‘gradually’ to replace its original trading arrangements, including those in Article 36(3) and Annex V, by ‘WTO compatible trading arrangements’, in the form of economic partnership agreements (EPAs), by the end of 2007.87 It was determined that EPAs should be concluded primarily with different groups of ACP States that were engaged in a regional economic integration process, rather (p. 484 ) than with individual ACP States.88 Of the various ways in which trade arrangements with ACP States might be made WTO-compatible, it was decided to follow the rules of the General Agreement on Tariffs and Trade (GATT) on free trade areas.89 That would allow the EC to continue to admit goods (including fishery products) from the ACP States free of customs duties, but it would require the ACP States to do likewise for imports from the EC.90 The negotiation of EPAs has, however, proved tough, complex, and protracted, and the 2007 deadline was not met. By the time of writing (the end of November 2008), only one EPA had been signed, namely an Agreement with fifteen Caribbean ACP States members of CARIFORUM, which was signed in October 2008.91 That agreement, in line with the policy position just referred to, provides for the duty-free access of fishery products from the CARIFORUM States to the EC.92 Seven interim EPAs had also been initialled (in November and December 2007).93 In order to provide temporary arrangements for trade with ACP States after the 2007 deadline, pending the conclusion and entry into force of EPAs, the EC adopted Regulation 1528/2007.94 (p. 485 ) Under that Regulation fishery products originating from the thirty-six ACP States listed in Annex I to the Regulation with which the EC has conducted negotiations ‘establishing or leading to the establishment of’ EPAs may be imported into the EC free of customs duties,95 thus continuing the position under the Cotonou Agreement and anticipating the position under the EPAs as far as fishery products are concerned. Those ACP States to which Regulation 1528/2007 does not apply comprise least-developed States enjoying tariff concessions under the system of generalized preferences (see below), States that have no significant exports to the EC, and South Africa, which has its own agreement with the EC (as seen above).
To benefit from the reduction or abolition of customs duties provided for in the agreements surveyed above, imports from the third States concerned must satisfy the rules of origin contained in those agreements.96 Under those rules, which are all very similar, goods must be wholly obtained in the third State concerned. In the case of fishery products, that means that they must be caught in the territory (including the territorial sea) of the third State concerned, or caught by a vessel having the nationality of that State outside the territorial sea, or processed on a factory ship having the nationality of that State from fish caught by a vessel having the same nationality. Furthermore, fishing vessels and factory ships must not only have the nationality of the third State concerned, they must also be owned to the extent of at least 50 per cent by natural persons who are nationals of that State or by a company with its head office in that State, of which a majority of the members of the board and a majority of the shareholders are nationals of that State. In addition, at least 75 per cent (50 per cent in the case of the Cotonou Agreement) of the crew (including the master and officers) must also be nationals of the third State concerned. The purpose of those provisions, at least in part, is to prevent the EC's tariff concessions being taken advantage of by flags of convenience or by vessels having the nationality of States not party to the agreement in question which land their catches in, or have their catches processed on factory ships of, the third State concerned. As the Court put it in a case involving the interpretation of various aspects of the rules of origin in earlier arrangements relating to the Faroe Islands, the purpose of the provisions relating to the ownership and crew of fishing vessels is to ensure that vessels of the third State have a ‘genuine economic link’ with that State.97 The (p. 486 ) requirements of the rules of origin relating to the ownership and crew of fishing vessels have caused some unhappiness among ACP States98 because the structure of the fishery sector in many of those States is based on vessel-chartering arrangements, joint ventures, and so on, which makes it impossible for many of the catches landed in those States to comply with the rules of origin and thus benefit from tariff concessions.99 In 2005 the Commission proposed some relaxation to the rules of origin in relation to vessel requirements.100 Some such relaxation is now starting to take place. Thus, Regulation 1528/2007, applying interim arrangements for trade with certain ACP States from the beginning of 2008, lays down rules of origin under which a vessel must be registered in and fly the flag of an ACP State, and be owned to at least 50 per cent by natural persons who are nationals of that ACP State or by a company having its head office and main place of business in that State and which is at least 50 per cent owned by public authorities or nationals of that State: there is no longer a crewing requirement.101 Furthermore, fishery products will also originate in an ACP State if caught by a vessel chartered or leased by that State to undertake fisheries activities in its EEZ provided that that State offered the EC the opportunity to negotiate a fisheries agreement which the EC declined and that the charter or lease contract has been accepted by the Commission as providing adequate opportunities for the development of the capacity of that State to fish on its own account and as conferring on that State responsibility for the nautical and commercial management of the vessel.102 Similar provisions are found in the first EPA that the EC has signed, that with the CARIFORUM States.103 There are, however, indications that there is not complete satisfaction with the rules of origin contained in the CARIFORUM Agreement. In a Joint Declaration attached to that Agreement,104 the parties agree that those rules ‘have to be examined in order to determine what possible changes may have to be made in the light of the first paragraph’, in which the EC ‘acknowledges the right of the coastal CARIFORUM States to the development and rational exploitation of the fishery resources in all waters within their jurisdiction’. The Declaration goes on to state that, ‘conscious of their respective concerns and interests’, the parties ‘agree to continue examining the problem posed by the entry, onto EC Party markets, of the fishery products from (p. 487 ) catches made in zones within the national jurisdiction of the CARIFORUM states, with a view to arriving at a solution satisfactory to both sides’.
A third means whereby customs duties on fishery products laid down by the CCT are not fully applied results from the EC's system of generalized preferences for imports from developing States, which has been in place since 1971.105 Under that system the EC has autonomously reduced customs duties for fishery products by 3.5 percentage points in general.106 For some fourteen States included in the special incentive arrangement for sustainable development and good governance and for some fifty least-developed States, duties on fisheries products are suspended entirely.107 To benefit from those concessions, the States and territories concerned must comply with rules of origin that are very similar to those of the agreements with Algeria etc discussed above.108 Interestingly and importantly, the tariff concessions made by the EC may be withdrawn if the State or territory concerned has engaged in ‘serious and systematic infringements of the objectives’ of regional fisheries management organizations (RFMOs) of which the EC is a member relating to the conservation and management of fishery resources.109
Fourthly, fishery products from the overseas countries and territories listed in Annex II to the EC Treaty (hereafter, ‘OCTs’, on which see Chapter 2) may be imported into the EC free of customs duties, provided that they comply with the rules of origin.110 The latter are similar to those applicable under the Cotonou Agreement, with the added proviso that fishery products will also originate in an OCT if caught by a vessel chartered or leased by that OCT to undertake fisheries activities in its EEZ provided that: (a) that OCT offered the EC the opportunity to negotiate a fisheries agreement which the EC declined; (b) at least 50 per cent of the crew of the vessel are OCT, Member State, or ACP nationals; and (c) the charter or lease contract has been accepted by the Commission as providing adequate opportunities for the development of the capacity of that OCT to fish on its own account and as conferring on that OCT responsibility for the nautical and commercial management of the vessel.111
Lastly, under Article 188 of the Community Customs Code fish caught by a Community vessel in a third State's territorial sea are exempted from the CCT (p. 488 ) (see also subsection 2.1 above).112 That position will not change when the new Customs Code comes into effect.113
The result of all the exceptions just described is that around two-thirds of imported fishery products are not subject to the CCT.114
Article 29 of the Markets Regulation provides for a system under which certain tariff concessions are withdrawn where they result in the price of imported fish falling below the reference price. Article 29(1) provides that reference prices may be fixed for three different types of imported fishery product: (a) those products that are subject to ‘tariff reduction or suspension arrangements, where the rules binding them in the WTO provide for compliance with a reference price’; (b) those products subject to the autonomous reduction or suspension of customs duties under Article 28(1) of the Markets Regulation (discussed above); and (c) those products that are subject to other arrangements that provide for compliance with a reference price and are in line with the EC's international obligations. Reference prices are fixed by the Commission each year by means of a Regulation, and in most cases relate to the various prices set under the Markets Regulation for intervention in the market that are discussed in the previous chapter. Thus, for the products listed in Parts A and B of Annex I to the Markets Regulation, which include fresh and chilled products of various finfish species (fourteen) and genera (six) and two cuttlefish species as well as certain products of two shrimp species, reference prices are the same as the Community withdrawal prices fixed for those products; and for the products listed in Part C of Annex I (which include certain products of sole, edible crab, and Norway lobster) and the frozen products listed in Annex II, they are the same as the Community selling prices for those products. For other kinds of products covered by the Markets Regulation, the reference price is to be fixed, in particular, on the basis of the weighted average of customs values recorded on import markets or ports of import in the Member States during the preceding three years, ‘taking account of the need to ensure that [reference] prices reflect the market situation’.115
Reference prices operate as follows. Where the ‘declared customs value’ of an imported product is lower than the reference price for that product, the ‘quantities concerned shall not qualify for the tariff arrangements in question’,116 ie for the arrangements listed in Article 29(1), whereupon customs duties under the CCT will then apply fully to such imports. This will presumably lead to an increase in the price of such imports.
(p. 489 ) The current system of reference prices is much more straightforward than the system of references prices found in the predecessors to the Markets Regulations.117 That is due to the need to comply with WTO obligations.118
Anti-dumping and countervailing duties
Where EC producers are facing competition from imports that is considered to be unfair either because imported fishery products are being dumped on the EC market (ie sold at artificially low prices) or subsidized, it is possible for the EC to step in and provide protection under the commercial defence instruments of general EC trade law. Where products are dumped, the EC may impose an anti-dumping duty on the products concerned under Regulation 348/96.119 In the case of subsidized imports, the EC may impose a countervailing duty under Regulation 2026/97,120 which is designed to offset the subsidy granted to the import concerned. Both Regulations implement the WTO agreements dealing with those matters.121
As far as fishery products are concerned, the main use of anti-dumping and countervailing duties has been in respect of Norwegian farmed salmon, in what has become quite a saga of legislation and litigation. In response to complaints from Scottish salmon farmers, the Council from 1997 onwards adopted a succession of Regulations imposing anti-dumping or countervailing duties on imports of Norwegian farmed salmon. The most recent Regulation, Regulation 85/2006,122 was challenged both before the CFI by individual Norwegian salmon farmers123 and under the WTO's Dispute Settlement Understanding by the Norwegian government. In addition, an Estonian court requested a preliminary ruling on the meaning of certain provisions of the Regulation.124 In the WTO case a panel found, in a report adopted by the WTO Dispute Settlement Body in January 2008, that the EC had acted inconsistently with a number of provisions of the WTO's Anti-Dumping Agreement.125 The EC accepted the panel's ruling and repealed (p. 490 ) the anti-dumping duty imposed by Regulation 85/2006.126 That action was also the outcome of an internal EC review of Regulation 85/2006, initiated in April 2007 at the request of several Member States which argued that Norwegian farmed salmon was no longer being dumped on the EC market.127 However, Regulation 85/2006 as a whole was not repealed in order to allow the market situation to continue to be monitored until the end of the period provided for by that Regulation, namely the end of 2011.128 The two cases brought by Norwegian salmon farmers, which seek the annulment of Regulation 85/2006, were still pending before the CFI at the time of writing, as was the request for a preliminary ruling from the Estonian court. The way in which earlier anti-dumping Regulations were applied to individual salmon farmers has also been the subject of litigation before the CFI.129
Under the EC's body of general trade law, various safeguard measures may be taken where a product is imported into the EC in such greatly increased quantities and/or such conditions and terms as to threaten or cause serious injury to EC producers.130 This general power is particularized for fishery products in Article 30 of the Markets Regulation, which provides that ‘where, by reason of imports or exports’, the EC market for one or more fishery products is ‘affected by, or is threatened with, serious disturbance likely to jeopardise the achievement of the objectives set out in Article 33 of the [EC] Treaty, appropriate measures may be applied in trade with third countries until such disturbance or threat of disturbance has ceased’. There has been little use of safeguard measures in relation to fishery products under the current Markets Regulation to date, although equivalent powers under predecessors to the Markets Regulation were used on a number of occasions.131 The main use under the current Markets Regulation has been in respect of farmed salmon. Following complaints from Ireland and the UK in 2004 over the rapid increase in imports of farmed salmon, the Commission adopted provisional safeguard measures in August 2004. Those measures lapsed in December 2004. In February 2005 the Commission imposed definitive safeguard measures, which included the imposition of quotas for the amount of farmed salmon that could be imported from Chile, the Faroe Islands, and Norway and a (p. 491 ) minimum import price.132 Almost immediately Chile and Norway initiated proceedings under the WTO's Dispute Settlement Understanding, arguing that the EC's measure was contrary to the WTO Safeguards Agreement.133 Possibly as a consequence, the Commission revoked the safeguard measures134 and replaced them with a provisional anti-dumping duty on Norwegian farmed salmon.135 Chile then terminated proceedings against the EC. Norway did not do so, but proceedings in that case have been dormant. Subsequently, the form of the EC's anti-dumping measure was changed to a minimum import price and applied until January 2006,136 at which point the measure was replaced by Regulation 85/2006 imposing a definitive anti-dumping duty (discussed above).
In general terms safeguard measures are seen as less effective than anti-dumping measures and in any case are intended to be used only in exceptional situations.137
Health and quality controls
We turn now from controls on imports primarily designed to protect the interests of EC fishermen and processors to those that serve other purposes, beginning with controls in the interests of consumers. There is a considerable volume of EC legislation that is designed to ensure that fishery products imported from third States do not pose a health risk to EC consumers.138 The basic principle of that legislation is that the EC applies the same food safety and hygiene standards to imported fishery products as it applies to fishery products originating and traded within the EC.139 In order to export fishery products to the EC, a third State must be approved by the EC.140 To be so approved, the third State must have a (p. 492 ) competent authority responsible for official health controls throughout the production chain in that State, which has been duly recognized by the Commission. To check whether such a competent authority exercises its responsibilities effectively, the Commission may visit the third State concerned and inspect the authority's activities.141 Where a third State has been duly approved, exports to the EC are permitted only from those establishments and vessels of that State that have been approved by its competent authority as meeting EC standards.142 Furthermore, imports of fishery products from third States must enter the EC through an approved Border Inspection Post where each consignment is subject to a systematic documentary check, identity check, and, where appropriate, physical check.143 The above provisions do not apply to fresh fish landed at an EC port directly from a vessel registered in a third State. Such landings are subject only to the same hygiene controls as Community vessels landing their catches in EC ports.144
Developing States, particularly ACP States, have complained that the EC's food safety and hygiene controls on imported fishery products are unnecessarily strict and constitute a significant obstacle to their ability to export fishery products to the EC, which is their most important export market.145 The point has also been made that the EC's system of controls penalizes well-managed seafood companies in States that do not have the resources or capacity to set up an effective competent authority recognized by the Commission because it prohibits such companies from exporting their products to the EC.146 As far as the authors have been able to discover, no complaint has (yet) been made to the WTO about the EC's health controls on imported fishery products.
(p. 493 ) The common marketing standards and labelling requirements that the EC has adopted for fishery products that are marketed for human consumption, discussed in the previous chapter, apply to imported products.147 In their application to imports, such standards and requirements are subject to international trade rules since they constitute potential obstacles to trade. In a case brought by Peru against the EC under the WTO's Dispute Settlement Understanding, the Appellate Body upheld a panel finding that the EC's then marketing standards for preserved sardines did not comply with Article 2.4 of the Agreement on Technical Barriers to Trade because they permitted too narrow a range of species to be marketed as ‘preserved sardines’.148 In response, the EC accepted the Appellate Body's ruling,149 and amended the relevant Regulation accordingly.150 In an earlier WTO case, Canada brought a complaint against the EC that a French order relating to the labelling of scallops violated Articles I and III of the GATT and Article 2 of the Agreement on Technical Barriers to Trade.151 Peru and Chile subsequently made similar complaints.152 A single panel was constituted and completed its substantive work, but did not give a ruling as the parties had in the meantime reached a mutually agreed solution that involved France amending the offending order.153 The cases appear to have been brought against the EC rather than France because Canada had been unable to settle the dispute with France, despite efforts to do so, whereas subsequent consultations with the EC enabled a temporary solution to be identified.154 The offending French order does not appear to have been intended to implement any EC measure.
Measures to combat IUU fishing
EC fisheries trade policy with third States also has a dimension that goes beyond traditional measures to regulate trade. In recent years trade measures have become increasingly used as a means of trying to combat IUU fishing. As was seen in (p. 494 ) Chapters 3 and 5, a number of RFMOs have adopted trade-related measures as a means of trying to secure compliance with their conservation and management measures.155 Such trade-related measures fall into three principal categories.
First, and most commonly, there are measures against individual vessels that are included on lists of vessels regarded as having participated in IUU fishing. The lists are drawn up by RFMOs, and the RFMOs’ members are then required to apply certain measures against the listed vessels. The required measures usually include, inter alia, prohibitions on landing of catches; such prohibitions are related to trade because in effect they reduce access to the market. Although the said prohibitions are directly against individual vessels, they may indirectly have an effect on the flag State of the vessel and so may be seen as trade-related measures against States. Almost all of the major RFMOs have adopted IUU vessel lists and associated measures.
Secondly, but far less commonly, there are measures against named flag States whereby an RFMO's members are required to prohibit the import of certain fishery products from States which have been identified as not complying with that RFMO's conservation and management measures. Although several RFMOs have adopted framework provisions enabling them to adopt such measures, the only RFMO to have adopted measures of this kind in practice is the International Commission for the Conservation of Atlantic Tunas (ICCAT). The ICCAT's measures in this respect currently comprise import bans against Bolivia and Georgia in respect of certain fishery products.156
Thirdly, some RFMOs have adopted schemes that require certain documentation to accompany fishery products as they travel along the supply chain, such documentation being intended as evidence that the products have not been caught by IUU fishing. Depending on the scheme in question, the absence of such documentation may then mean that a particular product is not permitted to enter (or leave) the market of an RFMO member. At the very least, the schemes may enable an RFMO to detect evidence of IUU fishing and then take appropriate action. Such RFMO schemes will be referred to in this chapter as ‘catch documentation schemes’, although not all such schemes go by this label.
The three kinds of RFMO trade-related measure just described have been implemented by the EC in respect of those RFMOs of which it is a member by means of an array of Regulations (see further Chapter 5). In addition, more (p. 495 ) generally, where catch has been taken by a third State vessel on the high seas inside the regulatory area of a competent RFMO of which the EC is a member, Article 28g of the Control Regulation requires Member States to authorize landing only if the species retained on board have been caught in compliance with that RFMO's conservation and management measures.157 The IUU Regulation, discussed earlier, will repeal Article 28g of the Control Regulation when the former becomes applicable at the beginning of 2010 and will replace it, and parts of the aforementioned array of Regulations, with a wide ranging set of measures for controlling imports.
Some compliance measures in the IUU Regulation relating to imports in the form of direct landings by third State vessels in Member States’ ports have already been outlined at the beginning of this subsection. (Others are described later below.) More generally, the IUU Regulation establishes an EC catch documentation scheme labelled as a ‘catch certification scheme’. This provides that fishery products158 may be imported into the EC only when accompanied by a catch certificate validated by the flag State of the fishing vessel from whose catch the products in question have been obtained: that certificate must certify that the catch was made ‘in accordance with applicable laws, regulations and international conservation and management measures’.159 That requirement applies not only where the exporting third State is the flag State, but also where it is not.160
In the latter situation, where the catch has simply been transported to the exporting State without undergoing processing there, the importer must provide documentation evidencing this, as well as the catch certificate validated by the flag State.161 Where the product has been processed in the State of export, the importer must submit to the authorities of the Member State of import not just the catch certificate but also a statement from the processing plant in the exporting State and endorsed by the latter's authorities which, inter alia, shows that the product in question was processed from catches that were accompanied by a catch certificate validated by the flag State.162
As a general rule, a catch certificate must be submitted by the importer to the competent authorities of the relevant Member State at least three working days before the estimated time of arrival of the imported product.163 That requirement (p. 496 ) does not apply to importers who have been granted the status of ‘approved economic operator’, who need simply advise of the estimated arrival of the product at least three days beforehand and keep the catch certificate available to the authorities for checking.164 The information required to be provided on a catch certificate is set out in the IUU Regulation's Annex II.165
Catch certificates will only be accepted if the validating flag State has notified the Commission that it has in place ‘national arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels’ and that its authorities are empowered ‘to attest the veracity’ of the information contained in catch certificates and to carry out verification of such certificates at the request of an EC Member State.166
Member States must check the catch certificates required from the importer and verify compliance with the Regulation's requirements on catch certification.167 Article 18 specifies the circumstances in which importation must be refused. Most, but not all, of these circumstances relate to non-compliance with the Regulation's catch certification requirements. Reflecting the potential economic impact on the importer, and possibly others, of decisions to refuse importation, the Regulation states that ‘[a]ny person shall have the right to appeal against [such] decisions … which concern him’.168
‘[W]here appropriate’, the Commission is to ‘cooperate administratively’ with a third State with the aims of, inter alia, ensuring that fishery products imported into the EC originate from catches made in compliance with the applicable rules; facilitating the accomplishment by the flag State of its obligations under the EC's catch certification scheme; and enabling the Commission to conduct ‘on-the-spot-audits … to verify the effective implementation of the cooperation arrangement’.169
As mentioned above, some RFMOs have adopted their own catch documentation schemes. Article 13(1) of the IUU Regulation provides that where an RFMO's catch documentation scheme is recognized as complying with the requirements of the Regulation, a catch document validated in conformity with such a scheme is to be accepted as equivalent to a catch certificate under the IUU Regulation. That provision is to apply ‘without prejudice’ to the various EC Regulations implementing RFMO catch documentation schemes.170 In the case of fishery products imported from a third State other than the flag State, a re-export certificate of an RFMO catch documentation scheme recognized under Article 13 may replace the documentation otherwise required.171
(p. 497 ) The EC's catch certification scheme is aimed at preventing fishery products derived from IUU fishing from entering the EC. The IUU Regulation also contains other provisions that may affect the ability of third States to export products to the EC. Article 11(2) requires that if the results of a port inspection ‘provide evidence that a third country fishing vessels has engaged in IUU fishing’, the port Member State must not authorize that vessel to land its catch. Article 37(5) requires a port Member State to refuse port entry to a third State fishing vessel on the Community IUU vessel list except in cases of force majeure or distress; in the latter circumstances, the catch must be confiscated. Alternatively, a port Member State may authorize entry into its ports by such vessels on the condition that the catch is confiscated. Article 37(9) requires that the importation of fishery products caught by fishing vessels on the Community IUU vessel list must be prohibited.172
Imports of fishery products caught by vessels whose flag States have been identified as ‘non-cooperating third countries’ are also generally prohibited.173 Procedures for identifying, and establishing a list of, such States are set out in Articles 31–33 of the IUU Regulation.174 In cases where there is evidence that the measures adopted by a third State are undermining conservation and management measures adopted by an RFMO, the Commission may adopt emergency measures, which may, inter alia, include a prohibition on fishing vessels registered in that State from having routine access to EC ports (and thereby losing the possibility of landing their catches there).175 Presumably this provision is intended to apply in cases of States that have not (yet) been placed on the list of ‘non-cooperating third countries’.
The IUU Regulation, if properly implemented, may turn out to have a significant impact on the volume and pattern of the EC's imports of fishery products from third States, as around 10 per cent (by value) of such imports are estimated currently to come from IUU fishing.176 If such products cannot find an alternative market, the Regulation will also make a significant impact on IUU fishing. On the other hand, the catch certification scheme established by the Regulation will impose on third States exporting fishery products to the EC (especially developing States) considerable administrative burdens, perhaps as great as those resulting from the EC's health and quality rules, described above.
It may be asked whether the IUU Regulation is compatible with the EC's WTO obligations, in particular those under the GATT. Any prohibitions on imports adopted under the IUU Regulation would clearly breach Article XI(1) of the GATT, which prohibits quantitative and similar restrictions on imports. (p. 498 ) However, any such breaches of Article XI may be justifiable under Article XX of the GATT. This provides that nothing in the GATT shall prevent the adoption by any party of measures, inter alia, for the protection of human or animal life or health (paragraph (b)) or ‘relating to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption’ (paragraph (g)). Such measures must, however, satisfy the requirements of the ‘chapeau’ of Article XX, namely that they ‘are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where the same conditions prevail, or a disguised restriction on international trade’.
As far as ground ‘(g)’ is concerned, the IUU Regulation is clearly concerned with ‘the conservation of exhaustible natural resources’, a term that the WTO Appellate Body has held includes renewable marine living resources.177 The IUU Regulation ‘relates to’ such conservation because, to employ the analysis of the Appellate Body in the first Shrimp/Turtle case,178 the means (restricting imports from IUU fishing) are reasonably related to the end of conserving what are generally fully or over-exploited fish stocks and seeking to ensure that stocks are managed sustainably.
To be justifiable under ground ‘(g)’, it is also necessary that the IUU Regulation is ‘made effective in conjunction with restrictions on domestic production or consumption’, ie that there are equivalent restrictions on EC Member States including, in particular, in respect of Community fishing vessels, or, as the Appellate Body has put it, that there is ‘even-handedness in the imposition of restrictions, in the name of conservation, upon the production or consumption of exhaustible natural resources’.179 There are ‘restrictions on domestic production’ in the form of EC legislation. Such EC legislation includes, inter alia, the IUU Regulation itself (although many of the trade-related provisions of this Regulation relate only to third States) and the Control Regulation. Lack of space precludes an analysis as to whether EC Member States are subject to restrictions that are equivalent to those that may be applied to third States under the IUU Regulation. However, some idea of the complexities that may arise in judging even-handedness is provided by the following example relating to the Regulation's provisions on the Community IUU vessel list.
As indicated above, being on the said list could have significant implications related to trade. Article 27(8) of the IUU Regulation states that: ‘Community fishing vessels shall not be included in the Community IUU vessel list if the flag (p. 499 ) Member State has taken action pursuant to this Regulation and [the Control Regulation] against breaches constituting serious infringements as laid down in Article 3(2), without prejudice to the action taken by [RFMOs].’ (Emphasis added.) It is questionable whether a comparison can easily be made between the economic impact of being placed on the Community IUU vessel list and the actions referred to in Article 27(8). Furthermore, Article 27(8) places an emphasis on enforcement action taken by Member States, which introduces a need to analyse practice. Overall, in this example, it would probably not be easy to reach a decision on whether or not there was equivalence.
It is also possible that any restrictions on imports from third States provided for in the IUU Regulation could be justified under paragraph (b) of Article XX, which is concerned with the protection of animal life and health. To be so justified, a measure must be ‘necessary’. That means that no GATT-consistent alternative is reasonably available and that the measure in question entails the least degree of inconsistency with other GATT provisions.180
As mentioned above, both grounds ‘(g)’ and ‘(b)’ in Article XX must also meet the requirements of that Article's chapeau. In the first Shrimp/Turtle case the Appellate Body found that the USA had not met the requirements of the chapeau because it had unilaterally sought to impose a conservation policy (compulsory use of turtle excluder devices in shrimp fishing) for a migratory marine resource (turtles) that was not confined to US maritime zones but was also found in the maritime zones of other States and on the high seas, without first attempting to negotiate a multilateral conservation agreement with those States whose imports it had banned. That amounted to unjustifiable discrimination.181 On the other hand, in the second Shrimp/Turtle case, where Malaysia challenged the way in which the USA had implemented the ruling in the first Shrimp/Turtle case, the Appellate Body held that it was sufficient that the USA had tried to obtain an agreement; it was not necessary that an agreement had actually been concluded.182
How can the lessons from the two Shrimp/Turtle cases be applied in the context of the IUU Regulation? It is necessary to make a distinction at this point, between the trade-related provisions of the IUU Regulation that may be regarded as implementing RFMO compliance measures and those that go beyond such measures. In the former case, any challenge to the provisions in question would presumably involve scrutiny of whether the RFMO compliance measures they implemented met the requirements established by the Appellate Body in the (p. 500 ) Shrimp/Turtle cases.183 In that regard, if the challenging third State was not a member of the RFMO in question, it might not be sufficient that the RFMO itself, and the measures it had adopted, represented a multilateral agreement. In such a case, it would presumably also be necessary to consider what attempts had been made by the RFMO to seek to persuade the State in question to join the RFMO or otherwise cooperate with it.
In the case of those provisions of the IUU Regulation that go beyond RFMO compliance measures,184 the situation is potentially quite different. In this case, such provisions should probably be regarded as unilateral measures adopted by the EC. Logically the focus should then be on the EC, rather than on any RFMO, as needing to pass the tests established in the Shrimp/Turtle cases or, more generally, the tests in the chapeau of Article XX. The mere fact that a measure is unilateral does not necessarily mean that it will be found to be incompatible with the chapeau.185 Furthermore, it should not be overlooked that the purpose of the unilateral measure in question would be to ensure compliance with RFMOs’ conservation and management regimes. However, regarding trade-related measures to ensure such compliance, the FAO's International Plan of Action on IUU fishing (on which, see Chapters 3 and 5) places emphasis on such measures being adopted on a multilateral basis.186 It will be interesting to see whether or how the EC seeks to implement the relevant provisions of the IUU Regulation in a way that minimizes the likelihood of a successful challenge under the WTO's Dispute Settlement Understanding.
Even if the provisions of the IUU Regulation going beyond RFMO compliance measures could not be justified under Article XX of the GATT, the question arises whether they could instead be justified as a legitimate countermeasure in international law.187 In this context it is interesting to note that Schoenbaum states that it would have been ‘a permissible countermeasure’ for Canada to have adopted ‘environmental trade restrictions’, such as ‘a ban on imports of fish products’, against Spain in response to intensive fishing in 1995 by (p. 501 ) Spanish vessels on the high seas adjacent to Canada's EEZ that was ‘disrupting Canadian efforts to rebuild fish stocks’ and that ‘violated several provisions’ of the relevant RFMO treaty.188
Individual Member State measures
As mentioned earlier in this section, because the EC is a customs union, Member States are not permitted to impose customs duties (or charges of equivalent effect) on fishery products imported from third States. Member States may, however, under Article 24(2) of Regulation 3285/94, adopt prohibitions, quantitative restrictions, or surveillance measures in respect of imports from third States on grounds similar to those in Article 30 EC (discussed in subsection 2.4 above in the context of intra-EC trade), provided that they first notify the Commission. The authors do not know to what extent, if at all, this power has been exercised in practice in respect of fishery imports.
3.3 The regulation of exports
At the time of writing there was very little applicable EC law relating specifically to the export of fishery products. The only such law was legislation implementing RFMO catch documentation schemes (referred to above) and legislation implementing the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES, discussed in Chapter 5; and see further subsection 3.1 above). That position will change at the beginning of 2010 when the IUU Regulation, and the EC's catch certification scheme that it establishes, takes effect. The Regulation contains a number of provisions dealing with the export and re-export of fishery products. Article 15 of the Regulation will make the ‘exportation’ of catches made by ‘fishing vessels flying the flag of a Member State’ subject to having a catch certificate validated by the flag Member State, but only if that is required within the framework of cooperation under Article 20(4) between the EC and third States relating to catch certification (referred to in subsection 3.2 above). ‘Exportation’ is defined as ‘any movement to a third country of fishery products harvested by fishing vessels flying the flag of a Member State, including from the territory of the Community, from third countries or from fishing grounds’.189 Article 21 of the IUU Regulation deals with ‘re-exportation’. It provides that where fishery products are to be re-exported from the EC following their import into the EC accompanied by a catch certificate, the EC Member State from which re-exportation is to take place must validate the appropriate section of the certificate. ‘Re-exportation’ is defined as ‘any movement from the territory of (p. 502 ) the Community of fishery products which had been previously imported into the territory of the Community’.190 The IUU Regulation also contains a separate stricter provision on export and re-export of products from fishing vessels included in the Community IUU vessel list. Export and re-export of such products ‘for processing’, specifically, is prohibited.191 This wording implies that the prohibition does not apply where fish is exported for a purpose other than processing (for example, for direct human consumption).
Where the export of fishery products is not subject to the provisions of the IUU Regulation, Regulations implementing RFMO trade-related measures or Regulations implementing the CITES, general EC law relating to the export of goods applies. In principle, such export is free of restrictions.192 There are two exceptions to this principle that appear to be potentially relevant to fishery products. First, under Article 6 of Regulation 2603/69, ‘in order to prevent a critical situation from arising on account of a shortage of essential products, or to remedy such a situation, and where Community interests call for immediate intervention’, the Commission, acting at the request of a Member State or on its own initiative, and taking account of the nature of the products and of the other particular features of the transactions in question, may make the export of a product subject to the production of an export authorization. Conditions for the granting of such authorizations are to be laid down by the Commission. As far as the authors are aware, the Commission has never made use of its powers under Article 6 in respect of fishery products. The second potential exception is Article 11 of Regulation 2603/69. This provision allows individual Member States to restrict exports on grounds similar to those in Article 30 EC (on intra-Community trade; see subsection 2.4 above). Article 11 would therefore allow a Member State to ban exports of fishery products from its territory to a third State that it believed to be a threat to human health. It might also allow a Member State to prohibit the export of illegally caught fish that was not covered by the IUU Regulation on the ground of public policy or the protection of the health and life of animals. The authors are not aware to what degree, if any, Member States have used their powers under Article 11 in respect of fishery products.
Exports of fishery products from the EC to a third State may well have to face customs duties imposed by that third State. However, some of the agreements referred to in subsection 3.2 above under which the EC has reduced or abolished customs duties on imports of fishery products from third States also provide that the third State concerned shall take more or less similar action in respect of exports from the EC. Such agreements include the EEA Agreement193 and the EC's Agreements with Algeria,194 the CARIFORUM States,195 Chile,196 the Faroe (p. 503 ) Islands,197 and South Africa.198 Otherwise, where EC exports are to States that, like the EC, are members of the WTO, they will enjoy most-favoured-nation treatment and national treatment under Articles I and III of the GATT.
EC exporters obviously have to comply with any relevant laws of third States relating to imports of fishery products (for example, health and quality standards). If the EC considers that any such national laws violate the WTO obligations of the State concerned, it may initiate proceedings against that State under the WTO's Dispute Settlement Understanding. So far this has been done on only one occasion. In 2000 the EC commenced proceedings against Chile in respect of a Chilean law that prohibited the unloading in Chile's ports of swordfish caught by Community vessels on the high seas of the south-east Pacific. The EC claimed that that law violated Articles V and XI of the GATT (which prohibit restrictions on trade in transit and quantitative restrictions on imports and exports, respectively). A panel was constituted to hear the dispute, but proceedings were suspended in March 2001 when the EC and Chile announced that they had come to a provisional arrangement concerning the dispute: proceedings have remained suspended ever since then.199 The dispute is linked to the Chile/EC Swordfish case before the International Tribunal for the Law of the Sea (discussed briefly in Chapter 5), proceedings in which are also currently suspended.
As far as trade in fishery products between EC Member States is concerned, the basic principle is complete freedom of trade, in keeping with the fundamental nature of the EC as a single market. There are, however, some qualifications to that principle. First, the EC may restrict trade between Member States in furtherance of Community objectives. Currently, it does so only in respect of health and hygiene standards and, especially in the light of the IUU Regulation, IUU fishing. Secondly, by virtue of Article 30 EC or the rule of reason enunciated in Cassis de Dijon, Member States may unilaterally restrict trade through measures that constitute, or are equivalent in effect to, quantitative restrictions.
The position in relation to trade in fishery products between the EC and third States is quite different and altogether more complex. While there is a general freedom in EC law to export (other than where the fish is the product of IUU fishing or where the export is regulated by the CITES), imports are subject to a (p. 504 ) significant degree of regulation. Such regulation serves a number of different and, to some extent, competing purposes: to protect EC fishermen from excessive competition from imports (by means of customs duties, reference prices, anti-dumping and countervailing duties, and, very exceptionally, safeguard measures); to facilitate the access of EC processors to the necessary supply of raw material for processing (by relaxing customs duties on such raw material) while protecting them from undue competition from processed products (by maintaining customs duties on such products); to satisfy the increasing demands of consumers for fish of high quality (by reducing or abolishing some customs duties while maintaining strict sanitary and quality standards); to promote the sustainability of fish stocks (by prohibiting the import of fish taken in IUU fishing); and to fulfil the EC's development obligations (by reducing or abolishing customs duties on imports from developing States). In legislating to regulate imports, the EC has not only to seek to satisfy the differing demands of the various interest groups mentioned, but also has to comply with its international trade law obligations, notably those stemming from its membership of the WTO. Not surprisingly, it has not always succeeded in satisfying these competing demands.200
It is of interest to note that the EC has recently begun to acknowledge in agreements with third States that its trade regime for fishery products may have a negative impact on such States. In particular, the EC's relatively liberal import regime may encourage producers in third States to export to the EC rather than helping to provide food for the local population. Conversely, EC exports to third States may have a damaging effect on local producers. These potential dangers are referred to in the first EPA with ACP States that the EC has signed (that with the CARIFORUM States),201 and are likely also to be considered in any further such agreements.
As mentioned at the end of Chapter 6, the Commission indicated in October 2008 that it would put forward a legislative proposal on reform of the common organization of the markets in fishery and aquaculture products during the second half of 2009. At the time of writing it was not clear whether significant changes to the provisions of the Markets Regulation relating to trade with third States were likely to be proposed.
(1) The term ‘fishery products’ is used in this Chapter to refer to the fish and other aquatic organisms covered by the CFP, whether processed or unprocessed. The term includes the products of marine fisheries, inland fisheries, and aquaculture. However, it should also be noted that Reg 104/2000 (Art 1) and Reg 1005/2008 (Art 2(8); see also Art 12(5)), both introduced below, each have their own, more limited, definitions of the term ‘fishery products’. See further Chapters 2 and 6.
(2) Food and Agriculture Organization of the United Nations (FAO), Yearbook of Fishery Statistics Summary Tables 2006 (available on the website of the Fisheries and Aquaculture Department of the FAO), Table A-3 and Appendix III, Table 1-1-1.
(4) This conclusion follows from the figures given in FAO, Yearbook of Fishery Statistics Summary Tables 2006, Table A-3 and Appendix III, Table 1-1-1.
(5) Commission Working Document, Reflections on further reform of the Common Fisheries Policy (2008), available on the website of DG Mare.
(6) Council Regulation (EC) No 104/2000 of 17 December 1999 on the common organisation of the markets in fishery and aquaculture products, OJ 2000 L17/22, as amended and corrected, Art 33.
(7) FAO, Yearbook of Fishery Statistics Summary Tables 2006, Appendix III, Table 1-1-1.
(8) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, OJ 2002 L358/59, as amended and corrected.
(9) Reg 104/2000.
(10) Art 23(1) EC.
(11) Opinion 1/75 (re Understanding on a Local Cost Standard)  ECR 1355. See further Eeckhout, P, External Relations of the European Union: Legal and Constitutional Foundations (Oxford: Oxford University Press, 2004), ch 2 and Barnard, C, The Substantive Law of the EU (2nd edn, Oxford: Oxford University Press, 2007), 211–20.
(12) Art 14(1) EC.
(13) Case 7/68 Commission v Italy  ECR 423 at 428–429.
(14) This was confirmed by the Court in Joined Cases 3, 4, and 6/76 Officier van Justitie v Kramer  ECR 1279, paras 53–54; and in Case C-228/91 Commission v Italy  ECR I-2701, para 11.
(15) Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, OJ 1992 L302/1, as amended and corrected. Reg 2913/92 has been repealed and will gradually be replaced by Regulation (EC) No 450/2008 of the European Parliament and the Council of 23 April 2008 laying down the Community Customs Code (Modernized Customs Code), OJ 2008 L145/1. The provisions of Reg 450/2008 that correspond to the provisions of Reg 2913/92 that are discussed below will not come into force until 24 June 2009 at the earliest: see Reg 450/2008, Art 188.
(16) Case C-265/01 Criminal proceedings against Annie Pansard and Others  ECR I-683, AG Opinion, paras 29–30.
(18) Pansard, AG Opinion, paras 30–35.
(19) Council Regulation (EEC) No 802/68 of 27 June 1968 on the Common Definition of the Concept of the Origin of Goods, OJ S Ed 1968 (I), 165, as amended (and now repealed), Art 4.
(20) Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, OJ 1993 L253/1, as amended and corrected.
(22) Reg 450/2008, Annex, Correlation Tables.
(23) Implementing the Community Lisbon Programme. Proposal for a Regulation of the European Parliament and the Council laying down the Community Customs Code (Modernized Customs Code), COM(2005) 608, 30.11.2005, p 9.
(24) Case 100/84 Commission v United Kingdom  ECR 1169, paras 19–22.
(25) Case 24/68 Commission v Italy  ECR 193, para 9.
(26) See, for example, Case 170/88 Ford España v Spain  ECR 2305.
(27) Case 18/87 Commission v Germany  ECR 5427, para 8. For further discussion of these two types of charge, see Barnard, The Substantive Law of the EU, 41–4.
(28) The main such legislation is Council Directive 2002/99/EC of 16 December 2002 laying down animal health rules governing the production, processing, distribution and introduction of products of animal origin for human consumption, OJ 2003 L18/11; and Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, OJ 2004 L226/83, as amended and corrected.
(29) Case 132/80 NV United Foods and Van den Abeele v Belgian State  ECR 995.
(30) Case 132/80, para 43.
(31) Case C-517/04 Visserijbedrijf D J Koornstra & Zn vof v Productschap Vis  ECR I-5015.
(32) Case C-517/04, para 26. See also para 28.
(33) Case 106/84 Commission v Denmark  ECR 833 (especially para 12).
(34) Case 140/79 Chemial Farmaceutici v DAF  ECR 1.
(35) Case 184/85 Commission v Italy  ECR 2013. For further discussion of the scope of Art 90, see Barnard, The Substantive Law of the EU, 45–63.
(36) Case 2/73 Geddo v Ente Nazionale Risi  ECR 865, para 7.
(37) Case 8/74 Procureur du Roi v Dassonville  ECR 837, para 5.
(38) However, the Court has held that the Dassonville formula does not apply to indistinctly applicable measures relating to selling arrangements: see Joined Cases C-267/91 and C-268/91 Keck and Mithouard  ECR I-6097 and Case C-405/98 Gourmet International  ECR I-1795.
(39) Case C-131/93 Commission v Germany  ECR I-3303, para 18; and Case C-24/00 Commission v France  ECR I-1277, para 52.
(40) Case C-169/89 Van den Burg  ECR I-2143, para 8; and Case C-350/97 Monsees  ECR I-2921, para 24. See further Barnard, The Substantive Law of the EU, 88–90.
(41) Case C-228/91 Commission v Italy , para 28; and Case C-24/00 Commission v France , para 53.
(42) Case 120/78 Rewe-Zentrale AG v Bundesmonopolverwaltung für Branntwein  ECR 649, para 8.
(43) Case 302/86 Commission v Denmark  ECR 4607.
(45) Joined Cases 3, 4, and 6/76 Officier van Justitie v Kramer , paras 55–60; Case 46/86 Albert Romkes v Officier van Justitie for the District of Zwolle  ECR 2671, para 24; and Case C-535/03 R ex p Unitymark Ltd and North Sea Fishermen’s Organisation v Department for Environment, Food and Rural Affairs  ECR I-2689, paras 50–51.
(46) Case C-280/89 Commission v Ireland  ECR I-6185, para 14.
(47) Pansard, AG Opinion, paras 41–64.
(48) Case 32/79 Commission v United Kingdom  ECR 2403.
(49) Case 32/79, AG Opinion, at 2473–2474.
(50) Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy, OJ 1993 L261/1, as amended, Arts 7 and 38.
(51) Case C-121/00 Walter Hahn  ECR I-9193.
(52) Case C-228/91 Commission v Italy , para 28.
(53) Case C-131/93 Commission v Germany .
(54) Case 247/84 Motte  ECR 3887.
(55) Case 132/80 NV United Foods and Van den Abeele v Belgian State , paras 19–31.
(56) Case C-228/91 Commission v Italy , paras 17–26.
(57) Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999, OJ 2008 L266/1.
(58) Reg 1005/2008, Art 42(1)(a).
(59) Reg 1005/2008, Art 42(1)(b).
(60) Where the fishery product to be exported from the Member State of export had been imported from a third State or processed from such imports, its import would be subject to compliance with the catch certification scheme introduced by the IUU Regulation (see subsection 3.2 below).
(61) See Art 2(2). See also Arts 3, 41, and 42.
(62) Reg 104/2000.
(63) 993 UNTS 243.
(64) Lequesne, C, The Politics of Fisheries in the European Union (Manchester: Manchester University Press, 2004), 14–15 and 131.
(65) Commission, Reform of the Common Organisation of the Markets in fishery and aquaculture products, Information Notes, 22.12.1999, 2, available on the website of DG Mare.
(66) Case C-342/03 Spain v Council  ECR I-1975, paras 18–19 and 24.
(67) Council Regulation (EC) No 1093/94 of 6 May 1994 setting out the terms under which fishing vessels of a third country may land directly and market their catches at Community ports, OJ 1994 L121/3.
(68) Reg 1005/2008, Arts 56 and 57. Art 57 repeals Reg 1093/94.
(69) Reg 1005/2008, Arts 4(2) and 5–8. See also the Regulation’s provisions on port inspections of third State vessels, in Arts 9–11. The catch certification scheme referred to is discussed below.
(70) Case C-125/94 Aprile  ECR I-2919, paras 34–37.
(71) Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, OJ 1987 L256/1, as amended and corrected.
(72) Reg 2913/92, Art 24.
(73) Reg 104/2000, Art 29(3).
(74) The term ‘quotas’ as used in this subsection refers to tariff quotas, ie amounts of fishery product subject to particular tariff arrangements. Such quotas are to be distinguished from catch quotas referred to in, inter alia, Chapters 3–5.
(75) For examples of such measures, see Council Regulation (EC) No 975/2003 of 5 June 2003 opening and providing for the administration of a tariff quota for imports of canned tuna covered by CN codes 1604 14 11, 1604 14 18 and 1604 20 70, OJ 2003 L141/1; and Council Regulation (EC) No 824/2007 of 10 July 2007 opening and providing for the management of autonomous Community tariff quotas for certain fishery products for the period 2007 to 2009, OJ 2007 L184/1. Reg 975/2003, which resulted from WTO mediation of a dispute between Thailand and the Philippines on one side and the EC on the other (see recital (1) of the Regulation), was the object of an unsuccessful challenge by Spain in Case C-342/03 Spain v Council . For a brief account of the WTO mediation, see Van den Bossche, P, The Law and Policy of the World Trade Organization (2nd edn, Cambridge: Cambridge University Press, 2008), 177–8.
(76) Report from the Commission to the Council and the European Parliament on the implementation of Council Regulation (EC) No 104/2000 on the common organisation of the markets in fishery and aquaculture products, COM(2006) 558, 29.9.2006, p 10.
(77) Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, OJ 2005 L265/2, Arts 14 and 18, and Protocol 3.
(78) Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part, OJ 2002 L352/3, Arts 60 and 68.
(79) Economic Partnership, Political Coordination and Cooperation Agreement between the Euro?pean Community and its Member States, of the one part, and the United Mexican States, of the other part, OJ 2000 L276/45, Art 5; and Decision No 2/2000 of the EC-Mexico Joint Council of 23 March 2000, OJ 2000 L157/10, Arts 7–10.
(80) Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Kingdom of Morocco, of the other part, OJ 2000 L70/2, Arts 15–18 and Protocol 2.
(81) Agreement on Trade, Development and Co-Operation between the European Community and its Member States, of the one part, and the Republic of South Africa, of the other part, OJ 1999 L311/3, Arts 13 and 14 and Annex V. The latter provides that tariff concessions shall not begin to operate until the fisheries agreement provided for in Art 62 has entered into force. Art 62 provides that the parties shall conclude a ‘mutually beneficial’ fisheries agreement providing for cooperation in promoting sustainable management and use of fishery resources. As no such agreement has yet been concluded, tariff concessions have not begun to operate. Although South Africa is a party to the Cotonou Agreement (discussed below), the provisions of its bilateral Agreement with the EC take precedence over the Cotonou Agreement: see Protocol 3 to the latter Agreement.
(82) Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Tunisia, of the other part, OJ 1998 L97/2, Arts 15–18 and Protocol 2.
(83) Agreement on the European Economic Area, OJ 1994 L1/3, Arts 8(3) and 20, and Protocol 9. Reduction in customs duties is coupled with increased access for Community fishing vessels to the maritime zones of Iceland and Norway: see further Chapter 5. For discussion of the trade provisions of the Agreement, see Churchill, RR and Ørebech, P, ‘The European Economic Area and Fisheries’, IJMCL 8 (1993), 453 at 454–7.
(84) Agreement between the European Community, of the one part, and the Government of Denmark and the Home Government of the Faroe Islands, of the other part, OJ 1997 L53/2, Protocol 1, as replaced by Decision No 1/1999 of the EC/Denmark–Faroe Islands Joint Committee, OJ 1999 L178/58, as amended.
(85) Protocol No 15 to the EC Treaty on Special Arrangements for Greenland, OJ 2006 C321E/254, Art 1. Abolition is conditional on ‘the possibilities for access to Greenland fishing zones granted to the Community’ being ‘satisfactory to the Community’ and on compliance with ‘the mechanisms of the common market organisation’. See further Chapter 2.
(86) [Cotonou] Partnership Agreement, 2000, OJ 2000 L317/3, as amended.
(87) Cotonou Agreement, Arts 36(1) and (2) and 37.
(88) Communication from the Commission to the European Parliament and the Council. Economic Partnership Agreements, COM(2007) 635, 23.10.2007, p 3.
(89) COM(2007) 635, p 4. The rules of the GATT on free trade areas are contained in Art XXIV. The text of the GATT is available on the website of the WTO.
(90) COM(2007) 635, p 4.
(91) Economic Partnership Agreement between the CARIFORUM States, of the one part, and the European Community and its Member States, of the other part, OJ 2008 L289/I/3.
(92) CARIFORUM-EC EPA, Art 15.
(93) Most of those agreements had been published in the COM series at the time of writing, as follows: Proposal for a Council Decision on the signature and provisional application of the stepping stone Economic Partnership Agreement between the European Community and its Member States, of the one part, and Côte d’Ivoire, of the other part, COM(2008) 438, 10.7.2008; Proposal for a Council Decision on the signature and provisional application of the stepping stone Economic Partnership Agreement between the European Community and its Member States, of the one part, and Ghana, of the other part, COM(2008) 440, 10.7.2008; Proposal for a Council Decision on the signature and provisional application of the stepping stone Economic Partnership Agreement between the European Community and its Member States, of the one part, and Central Africa, of the other part, COM(2008) 445, 10.7.2008; Proposal for a Council Decision on the signature and provisional application of the agreement establishing a framework for an Economic Partnership Agreement between the European Community and its Member States, of the one part, and the East African Community Partner States, of the other part, COM(2008) 521, 30.9.2008; and Proposal for a Council Decision on the signature and provisional application of the Interim Economic Partnership Agreement between the European Community and its Member States, of the one part, and the SADC EPA States, of the other part, COM(2008) 562, 18.9.2008. Two further agreements had not been published in the COM series at the time of writing but are referred to on the website of the European Commission’s Directorate General for Trade. Those agreements are the Interim Partnership Agreement between the European Community and its Member States, of the one part, and the Pacific States, of the other part; and the Interim Agreement establishing a framework for an Economic Partnership Agreement between Eastern and Southern Africa States on the one part and the European Community and its Member States on the other part. Because the above seven agreements are nearly all interim ones and have been no more than initialled, they are not discussed further in this chapter.
(94) Council Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic? Partnership Agreements, OJ 2007 L348/1, as amended.
(95) Reg 1528/2007, Arts 1, 2(1), and 3(1).
(96) EC-Algeria Agreement, Protocol 6, Arts 2 and 6; EC-Chile Agreement, Annex III, Arts 2 and 4; Decision No 2/2000 of the EC-Mexico Joint Council of 23 March 2000, Annex III, OJ 2000 L245/953, Art 4; EC-Morocco Agreement, Protocol 4, Arts 2 and 6; EC-South Africa Agreement, Protocol I, Arts 2 and 4; EC-Tunisia Agreement, Protocol 4, Arts 2 and 6; EEA Agreement, Protocol 4, Art 3; EC-Faroe Islands Agreement, Protocol 3 (as amended), OJ 2006 L110/1, Arts 2 and 5; and Cotonou Agreement, Protocol 1 to Annex V, Arts 2–3. The Protocol with Greenland does not contain any rules of origin. That means, according to Art 188 EC, that the rules of origin applying to the OCTs (discussed below) apply to Greenland.
(97) Joined Cases C-153/94 and C-204/94 The Queen v Commissioners of Customs & Excise, ex parte Faroe Seafood Co Ltd, F⊘roya Fiskas⊘la L/F and The Queen v Commissioners of Customs & Excise, ex parte Smith  ECR I-2465, para 44.
(98) Expressed, inter alia, in Declaration XXXIX attached to the Cotonou Agreement.
(99) Coalition for Fair Fisheries Arrangements, Comparing EU free trade agreements: Fisheries, In Brief No 6J (2006), 7 and Ibid , ACP-EU Economic Partnership Agreements: Fisheries, Discussion Paper No 69 (2005), 12, both available on the website of the European Centre for Development Policy Management.
(100) Communication from the Commission to the Council, the European Parliament and the European Economic and Social Committee. The rules of origin in preferential trade arrangements. Orientations for the future, COM(2005) 100, 16.3.2005, pp 8–9. See also COM(2007) 635, pp 5–6.
(101) Reg 1528/2007, Annex II, Art 3.
(103) CARIFORUM-EC EPA, Protocol I, Art 6.
(104) Joint Declaration relating to Protocol I on the Origin of Fishery Products, OJ 2008 L289/II/1954.
(105) The current legislation governing the matter is Council Regulation (EC) No 980/2005 of 27 June 2005 applying a system of generalised tariff preferences, OJ 2005 L169/1, as amended. The Regulation lays down arrangements until the end of 2008.
(106) Reg 980/2005, Art 7(2) and Annex II.
(107) Reg 980/2005, Arts 8 and 12.
(108) Reg 980/2005, Art 5(2) and Reg 2454/93, Art 68.
(109) Reg 980/2005, Art 16(e).
(110) Arts 184(1) and 185 EC; and Council Decision 2001/822/EC of 27 November 2001 on the association of the overseas countries and territories with the European Community, OJ 2001 L314/1, as amended and corrected, Art 35. On Dec 2001/822, see further Chapter 2.
(111) Dec 2001/822/EC, Annex III, Art 3. Art 37 provides for the possibility of derogations from the rules of origin: see, regarding fishery products, Commission Decs 2007/767, OJ 2007 L310/19; 2007/?167, OJ 2007 L76/32; 2005/578, OJ 2005 L197/31; 2003/673, OJ 2003 L243/106; 2002/644, OJ 2002 L211/16; and 2001/936, OJ 2001 L345/91.
(112) Further provision for this category of goods is made by Reg 2454/93, Art 856a.
(113) See Reg 450/2008, Art 133.
(114) Lequesne, The Politics of Fisheries, 132. It is not clear to which year(s) Lequesne’s statement relates.
(115) Reg 104/2000, Art 29(3)(d).
(116) Reg 104/2000, Art 29(2).
(117) As to which, see Churchill, RR, EEC Fisheries Law (Dordrecht: Martinus Nijhoff, 1987), 264–7.
(118) Proposal for a Council Regulation (EC) on the common organisation of the markets in fishery and aquaculture products, COM(1999) 55, 16.02.1999, p 6.
(119) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ 1996 L56/1, as amended.
(120) Council Regulation (EC) No 2026/97 of 6 October 1997 on protection against subsidized imports from countries not members of the European Community, OJ 1997 L288/1, as amended.
(121) See further Barnard, The Substantive Law of the EU, 236–7.
(122) Council Regulation (EC) No 85/2006 of 17 January 2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of farmed salmon originating in Norway, OJ 2006 L15/1.
(123) Case T-113/06 Fjord Seafood Norway and Others v Council , OJ 2006 C131/47; and Case T-115/06 Fiskeri og Havbruksnæringens Landsforening and Others v Council , OJ 2006 C143/32.
(124) Case C-56/08 Pärlitigu , judgment pending, OJ 2008 C92/19.
(125) WTO, European Communities—Anti-Dumping Measure on Farmed Salmon from Norway, Report of the Panel, WT/DS337/R, 16 November 2007, available on the website of the WTO.
(126) Council Regulation (EC) No 685/2008 of 17 July 2008 repealing the anti-dumping duties imposed by Regulation (EC) No 85/2006 on imports of farmed salmon originating in Norway, OJ 2008 L192/5.
(127) Reg 685/2008, recitals (2)–(5).
(128) Reg 685/2008, recitals (104)–(106).
(129) Case T-178/98 Fresh Marine Company AS v Commission  ECR II-3331, appealed as Case C-472/00P Commission v Fresh Marine Company AS  ECR I-7541; and Case T-340/99 Arne Mathisen AS v Commission  ECR II-2905.
(130) Council Regulation (EC) No 3285/94 of 22 December 1994 on common rules for imports and repealing Regulation (EC) No 518/94, OJ 1994 L349/53, as amended, Title V. The latter is based on the WTO Agreement on Safeguards.
(131) Berg, A, Implementing and Enforcing European Fisheries Law (The Hague: Kluwer, 1999), 57–8.
(132) Commission Regulation (EC) No 206/2005 of 4 February 2005 imposing definitive safeguard measures against imports of farmed salmon, OJ 2005 L33/8, as amended. Pursuant to Art 30 of the Markets Regulation, Reg 206/2005 was adopted under Reg 3285/94.
(133) WTO, European Communities—Definitive Safeguard Measure on Salmon, Disputes DS326 and DS328.
(134) Commission Regulation (EC) No 627/2005 of 22 April 2005 revoking Regulation (EC) No 206/2005 imposing definitive safeguard measures against imports of farmed salmon, OJ 2005 L104/4.
(135) Commission Regulation (EC) No 628/2005 of 22 April 2005 imposing a provisional anti-dumping duty on imports of farmed salmon originating in Norway, OJ 2005 L104/5, as amended.
(136) Commission Regulation (EC) No 1010/2005 of 30 June 2005 amending Commission Regu?lation (EC) No 628/2005 of 22 April 2005 imposing a provisional anti-dumping duty on imports of farmed salmon originating in Norway, OJ 2005 L170/32, as corrected.
(137) Barnard, The Substantive Law of the EU, 235–6.
(138) For a helpful overview of such legislation, see European Commission, Directorate-General for Health and Consumer Protection, Guidance Document: Key questions related to import requirements and the new rules on food hygiene and official controls (Brussels, 2006).
(139) Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety, OJ 2002 L31/1, Art 11.
(140) Regulation (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption, OJ 2004 L226/83, as amended and corrected, Art 11(1).
(141) Reg 854/2004, Art 11(2)–(5). For examples of unsuccessful challenges by EC importers of fishery products to Commission decisions withholding approval from third States, see Case C-183/95 Affish BV v Rijksdienst voor de keuring van Vee en Vlees  ECR I-4315; and Case T-155/99 Dieckmann & Hansen GmbH v Commission  ECR II-3143. An appeal in the latter case, as Case C-492/01, was dismissed, OJ 2003 C135/7.
(142) Reg 854/2004, Arts 12 and 15. Specific provisions relating to the import of aquaculture products, similar to the system laid down in Reg 854/2004, are contained in Council Directive 2006/88/EC of 24?October 2006 on animal health requirements for aquaculture animals and products thereof, and on the?prevention and control of certain diseases in aquatic animals, OJ 2006 L328/14, as amended and corrected, Chapter IV and Art 58(2).
(143) Council Directive 97/78/EC of 18 December 1997 laying down the principles governing the organisation of veterinary checks on products entering the Community from third countries, OJ 1998 L24/9, as amended; and Regulation (EC) No 882/2004 of the European Parliament and of the Council of 29 April 2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, OJ 2004 L191/1, as amended, Chapter V.
(144) Reg 854/2004, Art 15(1) and Annex III.
(145) Coalition for Fair Fisheries Arrangements, ACP-EU Economic Partnership Agreements: Fisheries (Maastricht: European Centre for Development Policy Management, Discussion Paper No 69, 2005), 11 and 21. It should also be noted that the EC provides financial aid to help ACP States meet the EC’s health standards: see Fishing for the truth: is Europe really destroying African fisheries’ industry?, 25 July 2008, p 2 (available on the website of the European Commission’s Directorate General for Trade).
(146) FAO, The State of World Fisheries and Aquaculture 2006 (Rome: FAO, 2007), 137.
(147) Reg 104/2000, Art 2(2); Council Regulation (EC) No 2406/96 of 26 November 1996 laying down common marketing standards for certain fishery products, OJ 1996 L334/1, as amended, Art 2(1); and Commission Regulation (EC) No 2065/2001 of 22 October 2001 laying down detailed rules for the application of Council Regulation (EC) No 104/2000 as regards informing consumers about fishery and aquaculture products, OJ 2001 L278/6, as amended and corrected, Art 1.
(148) European Communities—Trade Description of Sardines, Report of the Appellate Body, WT/DS231/AB/R (2002). For discussion of the case, see Tarasofsky, RG, Regional Fisheries Organizations and the World Trade Organization: Compatibility or Conflict? (Cambridge: TRAFFIC International, 2003), 13–?14.
(149) WTO Doc WT/DS231/18, 29 July 2003.
(150) Commission Regulation (EC) No 1181/2003 of 2 July 2003 amending Council Regulation (EEC) No 2136/89 laying down common marketing standards for preserved sardines, OJ 2003 L165/17.
(151) European Communities—Trade Description of Scallops, Dispute DS7.
(152) European Communities—Trade Description of Scallops, Disputes DS12 and DS14.
(153) European Communities—Trade Description of Scallops, WTO Docs WT/DS7/R and WT/DS7/12, both of 19 July 1996.
(154) European Communities—Trade Description of Scallops, WTO Docs WT/DS7/1, 24 May 1995.
(155) For a useful survey and review of such measures, see Lack, M, Catching On? Trade-related Measures as a Fisheries Management Tool (Cambridge: TRAFFIC International, 2007). See also Lodge, MW, Anderson, D, L⊘bach, T, Munro, G, Sainsbury, K, and Willock, A, Recommended Best Practices for Regional Fisheries Management Organizations (London: Chatham House, 2007), 54–63; and Owen, D, Practice of RFMOs regarding Non-Members, Recommended Best Practices for Regional Fisheries Management Organizations: Technical Study No 2 (London: Chatham House, 2007), passim.
(156) For a description of the EC’s implementation of the ICCAT’s measures against Bolivia and Georgia, see Owen, D, Practice of RFMOs regarding Non-Members, 133–4.
(157) Reg 2847/93, Art 28g, 2nd indent.
(158) The definition in the IUU Regulation of the term ‘fishery products’ is not as broad as that used by the authors in the first footnote to this Chapter (see section 1 above). See further Reg 1005/2008, Arts 2(8) and 12(5). Of note, the IUU Regulation’s definition does not include products listed in Annex I to the Regulation, namely certain molluscs as well as ‘[f]reshwater fishery products’, ‘[o]rnamental fish’, and certain aquaculture products.
(159) Reg 1005/2008, Art 12(2) and (3). Art 12(4) provides, inter alia, that within the framework of a cooperative arrangement with a third State (on which see below) a catch certificate may be replaced by ‘electronic traceability systems’ ensuring the same level of control as a catch certificate.
(160) Reg 1005/2008, Art 14.
(161) Reg 1005/2008, Art 14(1).
(162) Reg 1005/2008, Art 14(2).
(163) Reg 1005/2008, Art 16(1).
(164) Reg 1005/2008, Art 16(2). Criteria for the granting of approved economic operator status are set out in Art 16(3), and provisions on the suspension or withdrawal of such status in Art 45(8).
(165) Reg 1005/2008, Art 12(4).
(166) Reg 1005/2008, Art 20(1). See also Art 12(4).
(167) Reg 1005/2008, Arts 16, 17, and 24.
(168) Reg 1005/2008, Art 18(4).
(169) Reg 1005/2008, Art 20(4).
(170) Reg 1005/2008, Art 13(2). See also Art 6(2).
(171) Reg 1005/2008, Art 14(1) and (2).
(172) See also Reg 1005/2008, Art 18(1)(f).
(173) Reg 1005/2008, Art 38(1). See also Art 18(1)(g).
(174) See also Reg 1005/2008, Arts 34 and 35.
(175) Reg 1005/2008, Art 36.
(176) Commission staff working document—Accompanying document to the Proposal for a Council Regulation establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing—Impact Assessment, SEC(2007) 1336, 17.10.2007, section 2.1.3.
(177) United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, WT/DS58/AB/R (1998), paras 128–34.
(178) United States—Import Prohibition of Certain Shrimp and Shrimp Products, Report of the Appellate Body, paras 135–41.
(179) United States—Standards for Reformulated and Conventional Gasoline, Report of the Appellate Body, WT/DS2/AB/R (1996), pp 20–1.
(180) Schoenbaum, TJ in Birnie, P and Boyle, A, International Law and the Environment (2nd edn, Oxford: Oxford University Press, 2002), 702 and 710–11. See also Tarasofsky, Regional Fisheries Organizations and the World Trade Organization, 13.
(181) Shrimp/Turtle case, Report of the Appellate Body, paras 161–76.
(182) United States—Import Prohibition of Certain Shrimp and Shrimp Products. Recourse to Article 21.5 by Malaysia, Report of the Appellate Body, WT/DS58/AB/RW (2001).
(183) See Tarasofsky, Regional Fisheries Organizations and the World Trade Organization, especially at 18–?29, for a detailed study of the compatibility of RFMO trade-restrictive measures with WTO obligations. He reaches the conclusion that most such measures are compatible with the GATT and other WTO agreements. See also Roheim, CA and Sutinen, J, Trade and Marketplace Measures to Promote Sustainable Fishing Practices, ICTSD Natural Resources, International Trade and Sustainable Development Series Issue Paper No 3 (Geneva: International Centre for Trade and Sustainable Development, 2006).
(185) See further Schoenbaum in Birnie and Boyle, International Law and the Environment, 712.
(187) On the conditions and limitations applicable to the taking of countermeasures, see Articles 49–54 of the International Law Commission’s 2001 Articles on State Responsibility, UN General Assembly Official Records, Fifty-sixth session, Supplement No 10 (A/56/10).
(189) Reg 1005/2008, Art 2(13).
(190) Reg 1005/2008, Art 2(14).
(191) Reg 1005/2008, Art 37(10).
(192) Regulation (EEC) No 2603/69 of the Council of 20 December 1969 establishing common rules for exports, OJ 1969 L324/25, as amended, Art 1.
(193) Protocol 9, Art 1.
(194) Protocol 4.
(195) Art 16 and Annex III.
(196) Art 69.
(197) Protocol 1, Art 4.
(198) Art 15 and Annex VII. The concessions made by South Africa will not begin to operate until the concessions made by the EC have begun to take effect: as seen earlier, this had not happened as at the end of November 2008.
(199) Chile—Measures affecting the Transit and Importing of Swordfish, Dispute DS193. For the most recent information about the continuing suspension of proceedings, see WTO Doc WT/DS193/3/Add. 4, 17 December 2007.
(200) For an interesting discussion of the EC’s attempts to resolve the conflicting interests of processors and EC fishermen, see Lequesne, The Politics of Fisheries, 134–6.
(201) See CARIFORUM-EC EPA, Arts 37(4), 40(1), and 40(2).