The legal impact of the common fisheries policy on the Galician fisheries sector
Introduction
Spain is a fishing nation; its ships have been, and continue to be, present in many seas and oceans (Giráldez et al., 2011; López Veiga, 2000; Sobrino Heredia and Vellas, 1990). Over the centuries, as a result of the freedom of fishing that prevailed in the classical law of the sea, it developed a thriving fishing industry that afforded it a prominent place in the global fishing economy. In recent decades, Spain and its fishing fleet have had to adapt to two major developments: first, the new international fisheries law landscape resulting from changes in the law of the sea, as reflected in the proliferation of maritime areas and the curtailing of the freedom of fishing enshrined in the United Nations Convention on the Law of the Sea (hereinafter, UNCLOS) (United Nations Convention on the Law of the Sea, 1982); and, second, the far-reaching consequences of Spain's accession, on 1 January 1986, to the then European Communities (hereinafter, EU) and its gradual integration into the Common Fisheries Policy (hereinafter, CFP).
Galicia may be the region of Spain most affected by both the new international fisheries scenario and the new European regional fisheries environment defined in the CFP. Fishing and shellfishing are strategic activities in Galicia, and they have given rise to a dense industrial fabric that spans a wide variety of sectors, including shipbuilding, canning, freezing, etc. (Meixide and Ares, 1985). This fabric is estimated to encompass 74 of the 81 areas in which the Galician economy is concentrated (García Negro, 2017). Traditionally, Galicia's extractive fishing activity has relied on three fleet segments: a traditional fleet (coastal or inshore fishing), a deep-sea fleet (mostly operating in the current waters of the EU), and a freezer fleet (which mainly works in the Atlantic and Indian Oceans). These economic realities are today reflected in Galician society itself, which has incorporated maritime culture into its identity as a people and a social organization. This, in turn, helps to explain why the regional government, which is endowed with legislative powers, has a Ministry of the Sea.
The economic, social and environmental importance of fishing for Galicia explains the impact that Spain's accession to the EU had, and continues to have, for the region, especially given that it overlapped with the launch of the ‘blue Europe’ initiative, under a nascent CFP. All of this moreover explains the institutional and legal activism of the Galician private and public sectors in the bottom-up and top-down creation and application of European fisheries law, the proliferation of disputes brought before the Court of Justice of the European Union (hereinafter, CJEU) involving Galician fisheries interests, and the Galician presence in the processes of review of European fisheries regulations.
Thus, the evolution of the Galician fisheries sector has been shaped by the Treaty of Accession of Spain to the EU of 12 June 1985 (hereinafter, Treaty/Act of Accession) itself, as well as by the legal development of European fisheries law that has taken place since. A few figures may be instructive in this regard. In 1985, on the eve of Spain's integration into the EU, the Spanish fleet, consisting of 17,948 vessels, accounted for 37% of the entire fleet and more than half of the gross registered tonnes (hereinafter, GRT), of the group formed by Spain itself and the five main Member States at the time with significant fishing interests in the Atlantic (i.e. France, the United Kingdom, the Netherlands, Denmark and Ireland) (Cooperativa de Armadores de Pesca del Puerto de Vigo (ARVI), 2013; Facts and figures on the Common Fisheries Policy, 2012). That year it landed a total of 1,488,528 tonnes of fish (Pradas Regel, 1995). The same year, the Galician fishing fleet comprised 5677 vessels, which landed a total of 697,518 tonnes of fish, or 40.5% of the Spanish total (Fundación Pedro Barrié de la Maza, 1986). Two decades later, Spain had only 13,846 fishing vessels, of which 6700 were Galician; in other words, the Galician fishing fleet accounted for 42.1% of the Spanish fishing fleet as a whole (Giráldez et al., 2011). Moreover, over the same time period, certain segments of the Spanish fishing fleet, such as its cod fleet, its fleet in the Gran Sol fishing grounds and its fleet in the NAFO area, experienced large reductions in capacity of more than 50% (Cooperativa de Armadores de Pesca del Puerto de Vigo (ARVI), 2013). Significantly, by 2011, Spain had become the EU Member State that had most reduced its number of vessels, with a fleet consisting of 10,678 vessels, or 12.9% of the entire EU fishing fleet. In contrast, over the same period, other Member States, such as France and the United Kingdom, had significantly increased their fishing presence in the EU as a whole (Facts and figures on the Common Fisheries Policy, 2012). It is also considered that, for the period 1990–2006, the decrease in fishing power, in terms of tonnage for the inshore fleet, mainly occurred in the United Kingdom (hereinafter, UK) (187,000 Kw), Italy (158,170 Kw), Greece (123,802 Kw) and Spain (118,659 Kw). Nevertheless, in 2006 the fishing vessels of these EU Member States were modern, more powerful and technologically more effective (Villasante, 2010).
Today, thirty years after Spain's accession to the EU as it existed then, and as a result of the profound changes to which it has had to adapt over this period, the Spanish fishing fleet consists of a total of 9299 fishing vessels. With 4534 vessels, the Galician fleet accounts for 48.76% of this fleet, followed at some distance by: Andalusia (with 1486 vessels; 15.98%), the Canary Islands (with 786 vessels; 8.21%), Catalonia (with 763 vessels; 8.21%), the Valencian Community (with 587 vessels; 6.31%), etc. (Ministerio de Agricultura y Pesca, Alimentación y Medio Ambiente (MAPAMA), 2017a). The downward trend in the number of fishing vessels registered in Galicia continues. According to data from the Galician Ship Registry, as of 25 November 2017, a total of 4420 fishing vessels were registered in Galicia, of which 100 engage in deep-sea fishing in international waters, 67 engage in deep-sea fishing in EU waters, and the remainder (4,253) operate in national fishing grounds. Of course, there is also a large number of Galician-owned vessels sailing under the flags of other EU Member States and third countries.
This significant reduction in the Spanish fishing fleet in general, and of the Galician one in particular, should be understood not only as the result of the draconian conditions – restrictive and discriminatory – with which Spain had to comply in this area to accede to the EU, as will be seen in the following section, but also as a consequence of the downsizing of the EU's fishing fleet as a whole. This, in turn, is due to the successive Regulations that have gradually built the sectoral policy on fishing structures within the context of the CFP, aimed at bringing the fishing fleet into line with the available fisheries resources. As a result of this policy, the EU fleet has shrunk in terms of both tonnage and engine power, despite the significant increase in the number of EU Member States.
Notwithstanding this reduction, the aforementioned figures show that Spain in general and Galicia in particular still have large fleets and a very significant fish market. Both these fleets and the need to supply this market necessitate the use of additional fishing grounds, located in the waters of other Member States, third countries and the high seas. Although Spain traditionally accessed these fishing grounds freely, changes in international and European fisheries law have made them much less accessible.
In this context, a series of legal factors that have conditioned, and continue to condition, the development of the Spanish and Galician fisheries sectors are especially relevant. In terms of equal access to waters and resources of Member States, this would include the limitations imposed by the transitional regime established in Spain's Treaty of Accession to the EU and by the three successive framework regulations that have defined the CFP in this area. Meanwhile, fishing activities in the waters of non-EU Member State third countries went from being covered by a very active Spanish conventional policy on fisheries-related matters to an increasingly modest and moderate European one within the framework of the external dimension of the CFP. This shift has also impacted joint ventures set up in third countries with Spanish capital, which ceased to be legally regulated and became, instead, lost in a European legal limbo. Finally, with regard to access to resources in international waters, the fishing carried out by Spanish-flagged vessels largely came to fall under the legal framework of regional fisheries management organizations (hereinafter, RFMOs), in which their interests were often defended by European officials and in which they frequently had to fend off smear campaigns related to their alleged illegal, unreported and unregulated fishing (hereinafter, IUU fishing) practices.
The Spanish and Galician fishing fleets have had to adapt to these new European and international legal scenarios. In so doing, they have paid a steep price, particularly with regard to the accommodation of their activities within the EU's legal framework (regime for access to resources, relative stability criterion, discards, etc.). These challenges are now compounded by the uncertainty arising from the process of the withdrawal of the UK from the EU as a result of the referendum held in the country on 23 June 2016. This process was initiated on 29 March 2017, following the formal notification by the British government to the European Council. The results of the related negotiations will have a profound impact on the CFP and on the aspects of the internal market affecting fishing activities (free movement of fishery products, freedom to set up fishery companies, free movement of fishermen, etc.). As will be discussed below, this impact will be reflected in the exit agreement (i.e. the legal agreement for the UK's withdrawal), in any transitional period that might be established (most likely to last two years), and in the future international agreement that will provide for the ‘independence in interdependence’ that will shape future EU-UK relations, which, in the authors' view, will require a supplementary international fisheries agreement.
This paper focuses on the two fisheries sectoral policies that, within the CFP, have required the Member States to attribute exclusive competences to the European institutions, namely, the conservation and management of fisheries resources and external fisheries relations. To this end, it is divided into two parts. The first part will look at the status of the Galician fisheries sector within the framework of current European fisheries law. The second will focus on those aspects in which the legal impact is most obvious, placing special emphasis on the potential consequences of Brexit for them.
Section snippets
The status of the Galician fisheries sector within the framework of current European fisheries law
In the mid-1980s, Spain was, in economic terms, the main European fishing power. At the time, the country had a long and extensive international conventional practice: it had signed several multilateral fisheries agreements and a score of international ones with various countries, especially in Africa (Pradas Regel, 1995; Sobrino Heredia and Vellas, 1990). Additionally, Spanish fishery companies participated in numerous fishing joint ventures in countries with which, for various reasons, it had
The United Kingdom's withdrawal from the European Union and its potential consequences for the Galician fisheries sector
As is well known, as a result of the referendum held in the country on 23 June 2016, the UK decided to leave the EU after more than 40 years of membership in the international organization. The decision to leave was made formal following the official notification by the government of Theresa May on 29 March 2017 and the consequent triggering of Article 50 TEU. This was the first step in a process that will lead to the UK's disengagement from EU law, the internal market and other European
Final considerations
The Spanish fisheries sector, in general, and the Galician one, in particular, have experienced the ups and downs of the European fisheries sector intensely. Since Spain's accession to the EU in the 1980s, the Spanish/Galician fleet has undergone profound and significant changes. On the one hand, it has had to adapt to the demanding conditions negotiated in the area of fisheries for the country's accession to the EU, and, on the other, it has had to learn to defend its interests in the context
Funding
This article has been written within the framework of the Research Project “Proceso de negociación internacional para la conservación de la biodiversidad marina en las aguas más allá de la jurisdicción de los Estados' [‘International negotiation process for the conservation of marine biodiversity in waters beyond the jurisdiction of States’] (ref. DER2016-78979-R), financed by the Spanish Ministry of Economy and Competitiveness for the period December 2016–December 2019.
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