Commission Delegated Regulation (EU) 2023/340 of 8 December 2022 amending Delegated Regulation (EU) 2017/118 as regards conservation measures in Sylter Aussenriff, Borkum-Riffgrund, Doggerbank and Östliche Deutsche Bucht, and in Klaverbank, Friese Front and Centrale Oestergronden

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (1), and in particular Article 11(2) thereof,

Whereas:

(1) Pursuant to Article 11(1) of Regulation (EU) No 1380/2013, Member States are empowered to adopt fisheries conservation measures in their waters that are necessary to comply with their obligations under Article 6 of Council Directive 92/43/EEC (‘Habitats Directive’) (2), Article 4 of Directive 2009/147/EC of the European Parliament and of the Council (‘Birds Directive’) (3) and Article 13(4) of Directive 2008/56/EC of the European Parliament and of the Council (‘Marine Strategy Framework Directive’) (4).

(2) Article 6 of the Habitats Directive requires Member States to establish the necessary conservation measures for special areas of conservation that correspond to the ecological requirements of the natural habitat types and species present on the sites as listed in the Annexes of that Directive.

(3) Article 4 of the Birds Directive requires Member States to establish special conservation measures concerning the habitat types listed in Annex I thereto and of the species listed in Annex II thereto, that are present on the sites. It also requires Member States to take appropriate steps to avoid the deterioration of natural habitats and species habitats, as well as significant disturbance of the species for which the areas have been designated.

(4) In accordance with Article 13(4) of the Marine Strategy Framework Directive, Member States are to adopt programmes of measures, including spatial protection measures to achieve or maintain good environmental status that contribute to coherent and representative networks of marine protected areas, and adequately cover the diversity of the constituent ecosystems, such as special areas of conservation pursuant to the Habitats Directive, special protection areas pursuant to the Birds Directive and marine protected areas as agreed by the Union or Member States concerned in the framework of international or regional agreements to which they are parties.

(5) Pursuant to Article 11(2) of Regulation (EU) No 1380/2013, where a Member State considers that measures need to be adopted to comply with the obligations under Union environmental legislation referred to in Article 11(1) of Regulation (EU) No 1380/2013 and other Member States have a direct management interest in the fishery to be affected by such measures, the Commission is empowered to adopt such measures by means of delegated acts upon a joint recommendation submitted by the Member States.

(6) Commission Delegated Regulation (EU) 2017/118 (5) establishes conservation measures for the protection of the marine environment in certain areas of the North Sea.

(7) On 4 February 2019, after having consulted the North Sea Advisory Council (NSAC), Germany together with Belgium, Denmark, France, the Netherlands, Sweden and the United Kingdom, submitted to the Commission a joint recommendation regarding fisheries conservation measures in four Natura 2000 sites, DE1209-301 Sylter Aussenriff (Sylt Outer Reef), DE2104-301 Borkum-Riffgrund (Borkum Reef Ground), DE1003-301 Doggerbank (Dogger Bank) and DE1011-401 Östliche Deutsche Bucht SPA (Eastern German Bight), in the German exclusive economic zone in the North Sea.

(8) The joint recommendation contains fisheries management measures to protect sandbanks (habitat type 1110) and reefs (habitat type 1170) in Sylter Aussenriff and Borkum-Riffgrund from the impact of mobile bottom contacting gear, to protect the harbour porpoise in Sylter Aussenriff, Borkum-Riffgrund and Doggerbank and to protect six seabird species in Östliche Deutsche Bucht from being caught and/or killed in gillnets and entangling nets, in order to comply with obligations under Article 6 of the Habitats Directive and Article 4 of the Birds Directive. The joint recommendation also contains fisheries management measures to protect seafloor areas with the biotope type ‘Species-rich gravel, coarse sand and shell-gravel areas’ in Sylter Aussenriff and Borkum-Riffgrund from the impact of fishing activities, in order to comply with obligations under Article 13(4) of the Marine Strategy Framework Directive.

(9) The Scientific, Technical and Economic Committee for Fisheries (STECF) reviewed and assessed the joint recommendation in its plenary session of 25-29 March 2019 (6) and concluded that the proposed conservation measures are a first step forward to avoid further degradation of the marine environment and to reduce negative impacts of fishing activities on sandbanks and reefs habitats, on the biotope ‘Species-rich gravel, coarse sand and shell gravel areas’, on the harbour porpoise and on some seabird populations. Although STECF stated that freezing the fishing effort with gillnets and entangling nets will not reduce their impacts, the fact that the fishing intensity cannot increase in the future will already have a positive influence on the habitats and species in the protected areas. In addition, STECF raised some particular points regarding the control, enforcement and monitoring of the effectiveness of the proposed measures, which could be further improved.

(10) The Commission asked for additional clarifications and invited the regional group of North Sea Member States (‘Scheveningen Group’) to consider further improvements of the proposed conservation measures. The Commission’s requests and subsequent amendments were discussed with the Member States having a direct management interest and the revised joint recommendation was submitted to the Commission on 17 June 2021.

(11) The Commission presented the delegated act on 2 March 2022 to the Fisheries and Aquaculture Expert Group attended by the European Parliament as an observer.

(13) On 17 June 2019, after having consulted the NSAC, the Netherlands together with Belgium, Denmark, France, Germany, Sweden and United Kingdom, submitted to the Commission three further joint recommendations regarding fisheries management measures in two Natura 2000 sites, NL2008002 Klaverbank SAC (Cleaver Bank), NL2016166 Friese Front SPA (Frisian Front), and in the Friese Front and Centrale Oestergronden (Frisian Front and Central Oyster Grounds) marine protected areas, in the North Sea. The joint recommendations contain fisheries management measures to protect reefs (habitat type 1170) from the impact of mobile bottom contacting gear in the Klaverbank (Cleaver Bank), to protect the common guillemot from being caught and/or killed in gillnets and entangling nets in the Friese Front (Frisian Front), and to protect substantial parts of the seabed from the impact of mobile bottom contacting gear. These measures will contribute to comply with the obligations under Article 6 of the Habitats Directive, Article 4 of the Birds Directive and Article 13(4) of the Marine Strategy Framework Directive.

(14) The STECF reviewed and assessed those joint recommendations in August 2019 (7) and concluded that the proposed conservation measures represent a positive step forward to avoid further degradation of the marine environment and to reduce the negative impacts of fishing activities on reefs, the common guillemot and substantial seabed areas. Although STECF stated that consideration should be given to introduce a total ban of gillnet and entangling net fisheries during the closure period, the fact that the intensity of the fishing activities cannot increase in the future will already have a positive influence on the habitats and species in the protected area. In addition, STECF expressed some concern regarding the effectiveness of the control, enforcement and monitoring of the proposed measures, which, in its view, could be further improved.

(15) The Commission asked for additional clarifications and invited the Scheveningen Group to consider further improvements of the proposed conservation measures. The requests of the Commission and the subsequent amendments were discussed with the Member States having a direct management interest and the revised joint recommendations were submitted to the Commission on 1 July 2021.

(17) In all of the joint recommendations submitted by Germany and the Netherlands as initiating Member States and the other Member States having a direct management interest, the control and enforcement of fishing activities in the proposed management areas is performed mainly through the vessel monitoring system (VMS) installed on board of fishing vessels of 12 m length overall or more, in accordance with Article 9(2) of Regulation (EC) No 1224/2009.

(18) In addition to the provisions of Regulation (EC) No 1224/2009, an additional control and enforcement measure is proposed considering the need to effectively track fishing vessels in the relatively small areas covered by some proposed management measures. The VMS reporting frequency in these areas should be increased to once every 10 minutes, in the absence of a general frequency reference for Marine Protected Areas.

(19) Both Delegated Regulation (EU) 2017/118 and the joint recommendations submitted by Germany and by the Netherlands as initiating Member States cover only those bottom contacting gears that are mobile. Therefore and for the sake of clarity, that Regulation should be amended to define mobile bottom contacting gears.

(20) Delegated Regulation (EU) 2017/118 should therefore be amended accordingly to include the conservation measures proposed in the joint recommendation submitted by Germany on 17 June 2021 and in the three joint recommendations submitted by the Netherlands on 1 July 2021.

(21) The measures in this regulation applicable to Union waters are in pursuit of the objectives set out in Article 494(1) and (2) of the Trade and Cooperation Agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part (8), and have regard to the principles referred to in Article 494(3) of that agreement.

(22) This Delegated Regulation is without prejudice to the need for additional conservation measures necessary to comply with the relevant provisions of and the Commission’s position regarding compliance by the interested Member States with their obligations under the relevant Union environmental legislation,

HAS ADOPTED THIS REGULATION:

Article 1

Delegated Regulation (EU) 2017/118 is amended as follows:

(1) Article 1 is replaced by the following: ‘Article 1 Subject matter and scope

(4) Article 4 is replaced by the following: ‘Article 4 Transit

(6) Article 6 is replaced by the following: ‘Article 6 Review From 8 March 2023, Member States concerned shall monitor, assess and report on the implementation of the measures set out in Articles 3, 4 and 5, every three years for measures in areas 4(1) and 4(4) (Annex VI) under the Birds Directive, and every six years for measures in areas 1(10) to 1(13) (Annex I), area 2(28) (Annex II) and areas 4(2) and 4(3) (Annex VI) under the Habitats Directive and the Marine Strategy Framework Directive.’

(7) Annex I is amended in accordance with point 1 of the Annex to this Regulation;

(8) Annex II is amended in accordance with point 2 of the Annex to this Regulation;

(9) Annex VI is added in accordance with point 3 of the Annex to this Regulation.

Article 2

This Regulation shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 8 December 2022.

For the Commission The President Ursula VON DER LEYEN

(1) Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22).

(2) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ L 206, 22.7.1992, p. 7).

(3) Directive 2009/147/EC of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ L 20, 26.1.2010, p. 7).

(4) Directive 2008/56/EC of the European Parliament and of the Council of 17 June 2008 establishing a framework for community action in the field of marine environmental policy (Marine Strategy Framework Directive) (OJ L 164, 25.6.2008, p. 19).

(5) Commission Delegated Regulation (EU) 2017/118 of 5 September 2016 establishing fisheries conservation measures for the protection of the marine environment in the North Sea (OJ L 19, 25.1.2017, p. 10).

(6) Scientific, Technical and Economic Committee for Fisheries (STECF) – 60th Plenary Meeting Report (PLEN-19-01). Publications Office of the European Union, Luxembourg, 2019, ISBN 978-92-76-02904-5, doi:10.2760/56785, JRC116423.

(7) Scientific, Technical and Economic Committee for Fisheries (STECF) – Review of Joint Recommendations for Natura 2000 sites at Dogger Bank, Cleaver Bank, Frisian Front and Central Oyster Grounds (STECF-19-04). Publications Office of the European Union, Luxembourg, 2019, ISBN 978-92-76-11227-3, doi: 10.2760/422631, JRC117963.

(8) Trade and cooperation agreement between the European Union and the European Atomic Energy Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the other part, signed on 30 December 2020 (OJ L 149, 30.4.2021, p. 10).