Anne Friel and Jenni Grossmann from ClientEarth on how the Council’s lack of transparency in fisheries negotiations damages Europe

Anne Friel (L) and Jenni Grossmann (R)

EU Member States were obliged to deal with overfishing and to achieve sustainable use of fish stocks by 2015. They failed. Then, the Common Fisheries Policy (CFP) asked Member States to achieve the targets by 2020. This time too, they failed, as fish stocks continue to deplete at unsustainable rates in the Atlantic, North, Baltic, Mediterranean and Black Seas. 

Part of the problem lies in the lack of transparency and accountability in the decision-making process of the Council of the EU. These negotiations are held behind closed doors, giving ministers the opportunity to set total annual catches (TACs) that exceed the amounts suggested by scientific experts.

This time around too, EU ministers seem to have made decisions damaging the European seas. “Based on our initial analysis, many fishing limits were still set above advice, despite the Commission’s efforts to move things in the right direction. Examples include several stocks like southern hake, pollack in the Bay of Biscay and Atlantic Iberian waters and Kattegat cod. For all these stocks, data are limited and more caution is needed,” commented Jenni Grossmann, Fisheries Science and Policy Advisor at ClientEarth, about the December 2020 negotiations. “This is not good enough. One year after missing the legal deadline to end overfishing, the Council has once again set many limits above the scientific advice, jeopardising stock recovery.”

Investigate Europe interviewed Jenni Grossman, along with Anne Friel, a lawyer from ClientEarth, an organisation that focusses on enforcing access to information and justice rights at the EU level. In 2019, ClientEarth filed a complaint to the European Ombudsman about the lack of transparency in the decision-making process of the Council of the EU, leading to the adoption of the annual regulations setting total allowable catches.  In April 2020, the EU watchdog accused the Council of maladministration and decided that the Council should make documents related to the adoption of the TAC Regulation public when they are circulated to Member States, or as soon as possible.

ClientEarth also published a report in 2019 (with an updated version and key-points article in 2020) in which it found how “progress since 2015 towards setting TACs in line with scientific advice has been very limited, with more than half of the TACs assessed still exceeding advice for 2019”. 

Excerpts from the interview:

How important is scientific advice in dealing with overfishing and achieving sustainable fish stocks in the European Seas?

JG: Scientific advice is at the very basis of the whole process. We can all agree that we want sustainable fisheries in the long-term and in order to get there, we need an indication of how much fish we can get out without damaging the fish stocks. [Scientists] use data and estimate how much fish there is and how much we can take out, so that there will still be fish stocks in the future and we won’t jeopardise the health of the marine ecosystems. Without science, we would be fishing in the dark.

What role does scientific advice play in the EU’s decisions on fishing quotas in the European Seas?

JG: Fisheries management is quite complex and there are lots of different measures you can take in order to achieve sustainable use of fish stocks. For example, you can create marine protected areas. However, one of the key tools is to set fishing limits, which means limiting how much fish you take out from the sea. In the EU, we use advice provided by a scientific body called International Council for the Exploration of the Sea (ICES) which goes through data collected by Member States, in order to do assessments on fish stocks and advise the policymakers not to exceed a certain limit for each species, otherwise, fishing will be unsustainable. This scientific advice is then handed to the European Commission, which comes up with a proposal for the new fishing limits. This proposal, also accessible to the public, goes to the Council of the European Union, where EU fisheries ministers set total annual catches (TACs) for next year. We have different Council meetings for different seas and stocks. For example, we normally have a Council meeting in October for the Baltic stocks, we have another Council meeting every two years in November for the deep-sea stocks and then in December we have the main Council meeting setting catch limits for Northeast Atlantic stocks. Unfortunately, decision-makers do not always follow the scientific advice but often set TACs above the sustainable levels proposed by experts.

Scientific advice and the proposal from the Commission are accessible to the citizens. Do we have the same level of transparency in the Council?

AF: No, the decision making-process in the Council is very secretive. When negotiations start at the Council, everything becomes dark and we have no oversight while the legislative process is ongoing. Information is often released by the Council, but only after the final decision regarding the fishing quotas has been adopted. While the process is ongoing, the secretariat of the Council is circulating documents among the different delegations of the Member States. But we don’t have access to these documents and we don’t know the positions governments express. We don’t know which Member States push for limits above the sustainable level. We can make a request for access to documents, but then the information will [only] come to us after the end of the negotiations.

This lack of transparency is a common phenomenon in every level of the Council’s decision-making process. During this process, we have three stages. The first one is the Working Party on Internal Fisheries Policy, where national civil servants meet to discuss the Commission’s proposal. Based on these discussions, the Committee of Permanent Representatives, so Ambassadors, holds negotiations on the proposal about one week before the Agriculture and Fisheries Council. Only then the Agriculture and Fisheries Council comes together in order to set TACs. No information comes out from these stages until the decision has formally been taken. And bear in mind that the level of preparatory bodies and ambassadors is crucial as important decisions are taken there before ministries come to decide at the end of the process.

What happens to the Commission’s proposal after it gets behind the closed doors of the Council?

JG: By and large I would start by saying that the Commission is rather the good guy and the Council is rather the bad guy in our story. Whatever the Council decides is usually worse than what comes from the Commission. I have never seen the Council doing something more sustainable compared to the Commission’s proposal. Usually, they make it worse or in the best-case scenario, they stick with it. But there’s still a lot to be done. Our analysis of the Commission’s proposals and Council’s decisions over the last six years shows that both have come closer to the scientific advice, but as for the 2020 fishing limits, about 48% of the agreed fishing limits were set above scientific advice and about 45% in the proposal were already too high. So the Commission sometimes gives the governments what they want and they don’t have to push for more.

ClientEarth made a complaint to the European Ombudsman about the transparency of the Council’s decision-making process for fishing quotas. The Ombudsman found maladministration and asked for more transparency. What is your comment on this?

AF: The Ombudsman’s decision was crucial. Publishing documents that show Member States’ positions in a timely manner would help the public participate in the decision-making process and hold governments to account. Being more transparent would also incentivise ministers to follow advice from scientists rather than caving to industry demands. However, there’s a point in our complaint that the Ombudsman didn’t accept. More specifically, there are many many different meetings involved in the Council’s negotiations where different positions of the governments are reconciled before they agree and move on to the next stage. But we have no idea about what happens in these meetings as the Council doesn’t keep any minutes. I don’t want to question the integrity of the Council, but I find the practice of not taking minutes very strange and very symptomatic of a wider problem in the function of the Council and the lack of transparency and accountability. This is not what modern democracies do. The Council has the obligation to give us documents that exist. For documents that don’t exist, there’s no obligation. However, the European Court of Justice has said in a case that in some situations, failure to produce a document may already be a breach of the transparency rules.

Do you think that Council violates the EU legislation and Treaties, or do we need better laws?

AF: I think that the Council violates the transparency rules. Obviously, there could be improvements in the legislation, but what we have now definitely requires much more transparency. The case law from the European Court of Justice is very clear that there should be more transparency in the decision-making process of the Council and the public must have access to the positions that Member States express during the legislative process. And this access should be provided when the decision-making process is ongoing so that the citizens can participate in it. The Treaties clearly made a normative choice for both representative democracy and participative democracy in the EU. They state that citizens must be able to participate in the decisions of the Union. That’s why the European Court of Justice has decided for more transparency, despite the fact that the Council is really dragging its heels. This is very problematic as we have quite strong transparency laws which are also well interpreted by the European Court of Justice. Only the Council fails to stick to the letter and spirit of them.

If the Council didn’t decide behind closed doors, do you think governments would follow scientific advice more frequently

JG: More transparency would definitely help. I don’t think that magically all the decision-makers would suddenly do the right thing. But ministers do not want to be portrayed as people doing something environmentally embarrassing. If you allow things to be done behind closed doors, while no one is kept accountable for their decisions, it’s easier to defy science. If governments know they will be kept accountable for what they decide, it will be harder for them to take decisions damaging marine ecosystems as this will be met with hard criticism from the public.

As we are approaching the end of 2020, we are sure that Member States failed to comply with the EU legislation and achieve sustainable use of fish stocks by the end of this year. What’s your comment on that?

JG: It’s frustrating. This is the second legal deadline the Member States missed. The first deadline to achieve sustainable use of fish stocks by 2015 or, at the latest, 2020. Ministers should have known this was coming. Instead of sticking to scientific advice, they set, again and again, TACs above the sustainable levels and now it’s harder to follow the science because scientists ask them to fish much less than before and ministers use that as an excuse in order to continue setting TACs above the scientific advice. It’s a vicious circle.

If the governments had followed the scientific advice since 2015, would we have dealt with overfishing?

JG: I can’t go back in time and project what would’ve happened because ecosystems are quite dynamic. You can’t predict everything exactly. But I really believe that if governments had followed scientific advice sooner, today we would be in a better position. Scientific data shows us that stocks definitely respond to good fisheries management. We have cases like the North Sea Cod, which proves that when we listen to scientific advice and bring fishing pressure down, fish stocks can rebound. Sadly this also goes the other way around, and since fishing pressure has gone up again, North Sea cod is now back on the brink. This makes the whole management by the governments even more disappointing. We have marine ecosystems that are already subject to much human pressure caused by climate change, plastic pollution and toxic run-off from rivers. Despite that, we add more pressure with unsustainable fisheries. This is frustrating as fishing is something we can control quite directly by just setting limits in a sustainable way and making sure that people comply with them.

The Ombudsman and the ECJ ask for more transparency, citizens and NGOs demand more transparency and we all agree that this would bring better decisions for the EU citizens. Only governments keep resisting this change. So, what’s the next move?

AF: I think we should keep applying pressure and advocating for more transparency, including through litigation before the Court of Justice. It’s a battle worth fighting. This lack of transparency and accountability really damages Europe, because it allows the governments to blame Brussels for decisions made by them. They take credit for the good measures, while they blame Brussels for the tough decisions. We can see the results of the long mistreating of the EU legislative process. But let’s not be pessimistic. Over the last months, we have made several requests in order to have access to documents regarding the Member States’ positions in the legislative process reforming the Common Agricultural Policy and we got access to a lot more information than we had done in the past. This gives me hope that things will improve. We make small steps, but we make steps.

Why do you think the governments reject change?

AF: Reading the Council’s explanation and justification I understand that they see themselves as part of international negotiations rather than a legislative chamber. They see themselves as intergovernmental negotiators and this is why it is so difficult for them to accept the right to information EU citizens have. Of course, they are diplomats or ambassadors, representatives of national governments but they are not acting in an international context. They are part of a legislative process. This is also what the Treaties say. The Council is a co-legislator (together with the directly elected European Parliament, although that institution does not have a formal role in setting TACs) and therefore it has obligations towards EU citizens. This is the cultural shift we need to see the governments and the Council make.

How is Brexit going to change the situation regarding fish stocks in the European Seas?

AF: So far the vast majority of fish stocks have been negotiated within the Council. After Brexit, the EU and the UK will have to negotiate in an international context. In this context, there will be even less transparency and accountability than in the decision-making process of the Council. Access to information and documents may be refused because they will be subject to international negotiations. The policymakers won’t hesitate to use this argument in order to keep the negotiations secretive and it will be difficult to make the Court decide differently on that. And of course, any improvement regarding the transparency and accountability in the Council will not be implemented in the international relations between the UK and the EU. We will go from a legislative process to an international process and I am concerned that a lot of information will be kept in the dark in the name of that change.