On this 5 June, the International Day against Illegal, Unreported and Unregulated (IUU) fishing is celebrated by the European Union. While the EU can boast of having an ambitious legislation for fighting against IUU fishing, transparency in the implementation of this legislation needs to be improved.
When the European Commission notifies a third country that it could be considered a non-cooperating country in the fight against IUU fishing, it provides that country with an action plan which it considers should be put in place to avoid a 'red card', - the final notification which entails significant sanctions, such as a ban of EU imports of fishery products from that country. The notification procedure is stopped when the EU considers that the third country has implemented the necessary measures. But on what basis does the EU stop the procedure? Hard to say since these elements remain confidential. Therefore, is it guaranteed that the third country has implemented all the necessary measures to effectively combat IUU fishing? In view of what happened in South Korea early 2019, it’s far from certain.
The case of South Korea
On 26 November 2013, the European Commission notified South Korea that it could potentially be considered a non-cooperating country in the fight against IUU fishing. This decision[1] exhaustively and thoroughly describes Korea's failure to comply with the IUU Regulation, including illegal fishing operations off the coast of Africa.
A year and a half later, on 29 April 2015, the Official Journal publishes a short notice of just one page stating that the European Commission is putting an end to the procedure because "The Republic of Korea has introduced the necessary measures for the cessation of IUU fishing activities in question and the prevention of any future such activities, rectifying any act or omission leading to the notification of the possibility of being identified as non-cooperating countries in fighting IUU fishing." (JO C 142).
But in February 2019, a group of NGOs announced that the Korean government had failed in its obligations to fight IUU fishing: "The South Korean government has failed to sanction two vessels found fishing illegally in Antarctic waters, instead allowing the owner to sell this valuable catch on the global seafood market."[2].
Is this a sign that Korea, contrary to what was announced by the EU in 2015, had not implemented all the necessary measures to combat IUU fishing?
Our request for access to documents
To find out for sure, on 20 February 2019, CFFA asked the Commission to communicate the action plan it had proposed Korea to implement in order to avoid being identified as a non-cooperating third country, as well as the report drawn up by DG Mare on the basis of which the Commission had put an end to the notification procedure regarding Korea.
DG MARE replied on 13 March 2019 that the requested documents contained very sensitive information which is at the heart of bilateral relations with Korea to combat IUU fishing and that the success of the formal dialogue with Korea depended on the confidentiality of their exchanges. As a result, these documents could not be disclosed. As for the report prepared by DG MARE which, in our opinion, had necessarily served as a basis for taking the decision to end the process, DG MARE simply replied that it did not exist!
This answer was not acceptable. Why should the publication of the action plan jeopardize bilateral relations with Korea, except to hide from the public elements that would be inconsistent with the decision to end the procedure vis-à-vis this country? And how to believe that this decision would have been adopted without any evaluation report having been drawn up, showing that the deficiencies had been fully addressed?
Therefore, in accordance with Regulation 1049/2001 on public access to EU institutions documents, we decided to confirm our request for information with the General Secretariat of the European Commission, on 25 March 2019.
The General Secretariat replied on 8 May 2019, sending us the following documents, - de facto acknowledging that the categorical rejection by DG MARE of our first request was unfounded.
1) the letter sent on 26 November 2013 to Korea with the action plan attached to this letter
2) three documents, corresponding, according to the General Secretariat, to our demand for the report which formed the basis for the decision to end the procedure regarding Korea:
(i) the "Note to file" established on 10 March 2015, at the end of a mission carried out by a team of DG MARE in Korea on 24 and 25 February 2015,
(ii) the DG Mare note of 17 March 2015 to the Commissioner responsible for fisheries
(iii) the letter of 21 April 2015 from the Commissioner responsible for fisheries to Korea Minister of Oceans and Fisheries
What do we learn from the documents provided?
Many essential passages of the documents sent are hidden. This prevents us from knowing the details of the reasons which led to the Commission decision to end the procedure regarding Korea.
The letter addressed to the Minister of Oceans and Fisheries of Korea only underlines that Korea has revised its legal framework for fisheries by adopting a law on the development of distant water fisheries, by updating the fisheries management system and by strengthening respect for the port State obligations, but it does not describe the evidence leading to that assessment.
One thing is clear though: the position of the Commission lacks coherence.
Indeed, the letter of 26 November 2013 was explicit: all measures proposed in the plan of action should be implemented, without exception[3]. The notice published in the Official Journal in 2015, announcing the end of the procedure, also indicated that Korea had taken “the necessary measures to stop IUU fishing activities and prevent new ones”, and that it had “rectified any act or omission leading to the notification of the possibility of being identified as non-cooperating countries in fighting IUU fishing”.
But then, why, in the response from the General Secretariat of the Commission that we received on 9 May 2019, is it mentioned that "… the evaluation under Regulation (EC) No 1005/2008 is fully ongoing.”[4]?
Either the action plan has been fully implemented or it has not been. Since the evaluation is still ongoing, this means that the second hypothesis is the most probable.
It suggests that the procedure of notification of Korea as a non-cooperating country in the fight against IUU fishing was stopped although the plan of action proposed by the Commission was not fully implemented, contrary to what was required.
Beyond this, it is very unfortunate that the Commission refuses to provide us with the elements that would have allowed us to develop our own opinion of Korea's real - or not - willingness to fight IUU fishing.
This decision is unfounded in law. Since the decision to take action has been the subject of a reasoned decision published in the Official Journal, the decision to terminate the action must, in all legal logic, be the subject of a similar reasoned decision published in the Official Journal. The simple information note that has been published does not correspond to what was required.
The Commission justifies its attitude by the fact that the disclosure of the information contained in the hidden parts of the documents provided to us would undermine the protection of the public interest as regards international relations[5].
This position of the Commission is surprising.
Indeed, while the decision to initiate the procedure, published in the Official Journal, contains very harsh assessments of Korea, on the other hand, the publication of elements which are supposed to show the progress made by that country to fight IUU fishing would undermine the EU relations with this country? This is rather contradictory.
By not disclosing these elements, the Commission is actually acting as if the real progress made is actually much less significant than what was officially announced.
The case of South Korea shows the need for the European Commission to publish the action plans proposed to third countries that are in the process of being notified as non-cooperating parties, as well as the publication of actions taken by these third States, particular when those actions result in the termination of the procedure.
This is essential to guarantee the efficiency of the EU IUU regulation, and, when the notification procedure concerns illegal distant water fishing activities by third countries, to contribute to the protection of developing countries fishing communities who are often the first victims of these illegal activities.
[1] Published in EU Official Journal OJ C 346 of 27 November 2013 https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32013D1127(02)&from=EN
[2] https://ejfoundation.org/news-media/2019/korean-government-allows-illegally-caught-fish-onto-global-seafood-market-1
[3] It reads: « As a consequence, the Commission invites the Republic of Korea : 1. to take all necessary measures to implement the actions contained in the action plan. … »
[4] Page 7
[5] « The EU main interest is to encourage the Republic of Korea (as well as other third countries) to comply with the relevant international obligations in a smooth and peaceful manner without recourse to more onerous international dispute settlement procedures and without any further interference that might aggravate the dispute.
In this context, an atmosphere of trust and confidentiality is a prerequisite for a successful completion of the dialogue with the country concerned in the perspective of inducing them to comply with their conservation and cooperation obligations. The breach of the trust would jeopardise the relations between the EU and the countries concerned. Disclosure of information included in the internal documents and concerning the assessment of the compliance of third countries with their international obligations would compromise the EU objective of resolving this matter with these countries in a cooperative manner and in a climate of mutual trust and in a long standing perspective.
Disclosure of the information relating to internal national reform processes could also be detrimental to legitimate trade flows between the parties and put at stake the credibility of the Republic of Korea as fish supplier at global level. » (cf. p. 6)