The Commission presents a Communication on the implementation of certain provisions of Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries. It is recalled that the Regulation identifies fisheries where the use of acoustic deterrent devices (ADDs) is mandatory, the technical specifications and conditions of use of these devices, and fisheries where observer schemes to obtain representative data have to be conducted in order to assess the extent of by-catch of cetaceans. Member States are responsible for enforcing the use of ADDs and monitoring their efficacy over time, as well as implementing monitoring schemes according to the guidelines under this Regulation.

This Communication contains a summary of the information collected during 2007-2009 and submitted by Member States to the Commission. ICES and STCEF were also requested to analyse the scientific content of the national reports, the implementation of the Regulation and any additional scientific reports provided by Member States. The conclusions from this analysis by ICES and STECF are reflected.

The Regulation has been in place for 6 years, and despite these improvements it is still not fully meeting its objective of preventing the accidental capture of cetaceans in fishing gears. By-catch is still evident in a number of fisheries in the North Atlantic, North Sea and the Baltic and according to ICES several sub-populations of harbour porpoise and common dolphin in these areas are considered as endangered. For the Mediterranean and the Black Sea it is apparent that estimates of cetacean abundance are inadequate making any assessment of population or by-catch impossible for these regions but there is enough evidence to conclude that by-catch remains high in these sea basins.

The report makes the following points:

Lack of information for cetacean by-catch : there has been insufficient sampling in the right fisheries or areas to enabling sound management decisions to be made with respect to cetacean by-catch. Of the Member States that actually did report to the Commission most reported low or no by-catch in EU waters but scientific evidence from at-sea observer schemes or from post-mortem analysis of stranded animals continues to indicate significant interactions between fisheries and cetaceans. Information on cetacean populations is fragmented and population status remains unclear so the actual impact of fishing on populations is poorly understood. Absolute estimates that might be useful to inform management actions exist only for a few species in the North Sea, the Baltic Sea and parts of the NE Atlantic.

ADDs : currently there appears to be an over emphasis on mitigation measures (i.e. ADDs) where such measures are only proven to work in reducing bycatch of harbour porpoise in static net fisheries and not for other cetacean species (e.g. common and striped dolphin) or with other fishing methods (e.g. pelagic trawls). This has resulted in Article 2 of the Regulation, on the obligation to use ADDs, being ineffective. There is a general reluctance by fishermen to use the devices currently available due to practical and economic reasons. All Member State using ADDs have concluded that further work is needed to improve the reliability, effectiveness and practical handling of the current devices, and the annual cost of deploying ADDs also remains an issue.

Inadequate reporting by Member States : many Member States have made a considerable effort to meet the reporting requirements of the Regulation. The improvements to the reporting format advised by ICES and STECF and accepted by the Member States will further improve this. However, the quality and content of the reports from some Member States submitted remains inconsistent, making analysis difficult. Reporting by Member States should be at a fleet segmentation level that follows the classification set out in the Data Collection Framework (DCF) and also with a monthly rather than a quarterly resolution.

Monitoring targets : targets specified in the Regulation appear over ambitious and these targets could be rethought. Adherence to the monitoring scheme mandated under the Regulation in fisheries where by-catch rates are known to be low is not the most effective use of resources, especially when bycatch is known to be occurring more frequently in fisheries or areas where there is currently no requirement for monitoring under the Regulation. According to ICES, a more general approach whereby Member States would be required to demonstrate their fisheries were not exceeding some agreed level of cetacean bycatch would be more appropriate without overburdening Member States with excessive monitoring requirements. Greater flexibility and co-ordination is required in allocating monitoring effort.

Research : cetacean distribution and interactions with fisheries are not constant through time. The development of dedicated research on mitigation measures and improvement of monitoring interactions between cetaceans and fisheries in parallel with the full implementation of the Regulation will contribute to a better understanding of those shifts and support the enhancement of sound management tools. Data collection under the Habitats Directive (Directive 92/43/EEC) and also the linkage with the Regulation needs to be clarified so the utility of the data collected is maximised and there is no duplication. Member States have obligations under the Habitats Directive to monitor the incidental capture and killing of all cetaceans and ensure that incidental capture or killing does not have a significant impact on the populations. In this regard, for other fishing activities and for other areas where incidental catches are problematic and not covered by the Regulation, Member States have the responsibility to take appropriate measures to safeguard cetacean populations. In particular incidental cetacean by-catch in the Black Sea and the incidental catches of pinnipeds, seabirds and turtles in fishing gears in all areas are highlighted as specific cases which are currently outside the scope of the Regulation but require monitoring.

Way forward : although monitoring targets, data formats and other issues are subjects of ongoing debate, the Regulation has, according to ICES, succeeded in providing a much more comprehensive picture of cetacean by-catch in European fisheries. Some Member States have become more knowledgeable about the impacts that their fisheries have on cetaceans, allowing them to streamline the needs for research and protection of cetaceans and improve the implementation of the Regulation.

There is a need to ensure that monitoring and mitigation are targeted in the areas and for the species most under threat. Improved mitigation measures could be incorporated under the new technical measures framework that will be developed as part of the reform of the Common Fisheries Policy. This would set out the scope, objectives and targets to be met in relation to cetacean by-catch, with the option for Member States to take specific mitigation measures for specific areas and fisheries. The monitoring requirements could be incorporated into the DCF, in line with a move to a wider ecosystem approach to fisheries monitoring which would include bycatch of non-target species such as cetaceans, seabirds and benthic organisms. Once this is achieved, Regulation (EC) 812/2004 could be repealed.

This communication concerns cetacean incidental catches in fisheries. It is the follow-up report to the implementation of 2 regulations: (i) Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98; (ii) Council Regulation (EC) No 2187/2005 relating to the conservation of fishery resources through technical measures in the Baltic Sea, the Belts and the Sound, amending Regulation (EC) No 1434/98 and repealing Regulation (EC) No 88/98.

Council Regulation (EC) No 812/2004 : Council Regulation (EC) No 812/2004 lays down measures aimed at mitigating incidental catches of cetaceans by fishing vessels. The Regulation identifies the fisheries where the use of acoustic deterrent devices, also known as pingers, is mandatory, the technical specifications and conditions of use of these instruments, and the fisheries where at-sea observer schemes have to be conducted. Member States are responsible for the implementation of the acoustic devices, for monitoring its efficiency, and implementing monitoring schemes according to the guidelines under this Regulation. According to Article 6 (EC) Regulation 812/2004, Member States must send to the Commission a comprehensive annual report on the implementation of certain provisions of the Regulation including "estimates of the overall incidental catches of cetaceans in each of the fisheries concerned". In accordance with Article 7 of that Regulation the Commission, after receiving Member States second annual report, has the obligation to report to the European Parliament and the Council on the operation of this Regulation. The report should be based on an assessment carried out by ICES and STECF of the Member States reports. Council Regulation (EC) No 2187/2005 : Council Regulation (EC) No 2187/2005 contains technical measures for the conservation of fisheries resources in the Baltic Sea. According to Article 27, the Commission shall by 1 January 2008 ensure that a scientific assessment of the effects of using in particular gillnets, trammel nets and entangling nets on cetaceans is conducted and its findings presented to the European Parliament and Council. Merging of the two reports : the information required for the scientific assessment of the effects of using in particular gillnets, trammel nets and entangling nets on cetaceans under Regulation (EC) No 2187/2005 is very similar to information on incidental catches derived from the "At-sea observer schemes" and collected by Member States according to Regulation (EC) 812/2004. Both reports would hence cover partly the same information on incidental catches of cetaceans from fishing gears. Therefore, the Commission has decided to merge the two requested reports to the European Council and Parliament.

Conclusions and way forward : this report concludes that, although most Member States have reported low or no incidental catches in EU waters, scientific evidences from at-sea monitoring schemes or from post-mortem analysis of stranded animals continue to show existing conflicts between cetacean and fisheries . Information on cetacean populations is fragmented and population status remains unclear.

The Commission recognises that some Member States have made considerable efforts to correctly implement ( EC) Regulation 812/2004 but also acknowledges that some Members States are lagging behind. Although it recognises that there could be reasons to amend the Regulation at a later stage, full implementation across Member States has not been achieved so far and, therefore, it has not been possible to assess the impact of the existing measures to mitigate incidental catches of cetaceans . Best practices presented in the workshop show that it is possible to achieve good results under the present circumstances. The Regulation provides for flexibility which must be used to the full.

Considering the need to reduce the impact of fisheries on cetacean populations in EU waters, the Commission urges Member States to take all the necessary measures to improve the implementation of the Regulation . It would also like to emphasise Member States’ obligations under the Habitats Directive to monitor the incidental capture and killing of all whales and cetaceans and ensure that incidental capture or killing do not have a significant impact on the populations. In this regard, for other fishing activities and for other areas where incidental catches are problematic and not covered by the Regulation, Member States have the responsibility to take appropriate measures to safeguard cetacean populations.

As a follow-up to the workshop on the implementation of the Regulation, the Commission will carefully consider the following main points:

the full use of the flexibility in (EC) Regulation 812/2004, in reply to problems concerning monitoring schemes, gears and areas; including the Black Sea in (EC) Regulation 812/2004; encouraging Member States to widen current monitoring schemes , to integrate observations on incidental catches of cetaceans; encouraging the debate on mitigation measures with industry within the RACs; identifying measurable objectives for maximum acceptable incidental-catch levels for different cetacean populations.

The Commission will also, in order to harmonise information reported by Member States , revise the format for reporting received from ICES and revised by STECF, and make it available to Member States. As from next year, the Commission would hence expect to receive complete National Reports from all Member States concerned with all the information required in the Regulation as well as any other appropriate information as requested.

Lastly, the critical state of the Baltic harbour porpoise population also needs to be further addressed by the Community and consequent actions need to be considered. According to ICES latest advice on cetaceans, the best conservation efforts are likely to include stakeholder involvement. The Commission agrees with this approach and would like to encourage Member States and stakeholder organisations to investigate ways of minimising incidental catches of harbour porpoises in the Baltic. In order to improve the current knowledge base, the Commission launched recently a call for tenders to carry out a study on cetacean by-catch data collection in the Baltic, Kattegat and the Sounds.