The Sea Fishing (EU Control Measures) (Scotland) Order 2015

Made: 2nd September 2015

Laid before the Scottish Parliament: 4th September 2015

Coming into force: 5th October 2015

The Scottish Ministers make the following Order in exercise of the powers conferred by section 30(2) of the Fisheries Act 1981 and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972 and all other powers enabling them to do so.

This Order makes provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to the Scottish Ministers that it is expedient for references in this Order to the Control Regulation and the Implementing Regulation (as both defined in article 2) and Regulation (EU) No 1380/2013 of the European Parliament and of the Council 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) 639/2004 and Council Decision 2004/585/EC (in relation to the amendment at article 26(2)) to be construed as references to those instruments as amended from time to time.

PART 1 — GENERAL PROVISIONS

Citation, commencement and extent

1

• (1) This Order may be cited as the Sea Fishing (EU Control Measures) (Scotland) Order 2015 and comes into force on 5th October 2015.

• (2) Subject to paragraph (3), this Order extends to Scotland and the Scottish zone only.

• (3) So far as this Order extends beyond Scotland and the Scottish zone, it does so only as a matter of Scots law.

• (4) Nothing in paragraph (2) is to be treated as prejudicing the effect of section 30(2A) of the Fisheries Act 1981 in the rest of the United Kingdom in relation to, or for purposes incidental to, any provision which creates an offence.

Interpretation

2

• (1) In this Order—

• “British sea-fishery officer” has the same meaning as in section 7 of the Sea Fisheries Act 1968 ;

• “control measure” means a requirement contained in a provision of the Control Regulation or Implementing Regulation, as read with any qualifying or supplementary provision in assimilated law (within the meaning of section 6(7) of the European Union (Withdrawal) Act 2018);

• “Control Regulation” means Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 , as amended from time to time;

• “equivalent provision” means any provision in any other order made under section 30(2) of the Fisheries Act 1981 or any other order, regulations, rules or scheme made under section 2(2) of the European Communities Act 1972 for the purpose of implementing any control measure or third country control measure—which extends to any part of the United Kingdom and has equivalent effect to a provision in this Order; andproceedings in respect of which may be commenced in any place in the United Kingdom by virtue of section 30(2A) of the Fisheries Act 1981;

• ...

• ...

• ...

• ...

• “first sale fisheries product” means a fisheries product (other than farmed fish) which is being sold for the first time;

• “fisheries product” includes fish which is landed from a fishing boat;

• “Implementing Regulation” means Commission Implementing Regulation (EU) No 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy , as amended from time to time;

• “licensed fishing boat” means a fishing boat in respect of which a licence has been issued under section 4 of the Sea Fish (Conservation) Act 1967 or under similar provisions by another Member State or by another country;

• “PLN number” means a fishing boat's port number and register number within the meaning of regulation 31 of the Merchant Shipping (Registration of Ships) Regulations 1993 ;

• “recording and reporting requirement” means any requirement under the Control Regulation or the Implementing Regulation to record, keep, notify, submit, transmit or communicate any information or document;

• “registered auction” means a centre or site registered or designated by the Scottish Ministers in accordance with article 10, at which fisheries products are marketed for sale by competitive bidding;

• “registered buyer of fisheries products” means a person who is registered by the Scottish Ministers in accordance with article 6 (and includes an agent who buys fisheries products on behalf of that person);

• “registered seller of fisheries products” means a person who is registered by the Scottish Ministers in accordance with article 8 (and includes an agent who sells fisheries products on behalf of that person);

• ...

• ...

• “relevant offence” means an offence under any provision of this Order except article 21(2), or under any equivalent provision extending to any other part of the United Kingdom, proceedings in respect of which were brought in Scotland by virtue of section 30(2A) of the Fisheries Act 1981;

• “Scotland” and “the Scottish zone” have the same meaning as in section 126(1) of the Scotland Act 1998 ;

• “Scottish fishing boat” means a fishing vessel which is registered in the register maintained under section 8 of the Merchant Shipping Act 1995 and whose entry in the register specifies a port in Scotland as the port to which the vessel is to be treated as belonging; and

• “third country” means any country other than the United Kingdom,

• “third country control measure” means a provision of ... the Control Regulation, relating to third country fishing boats, as read with any qualifying or supplementary provision in assimilated law (within the meaning of section 6(7) of the European Union (Withdrawal) Act 2018), and in particular— ...Article 9(6) of the Control Regulation,Article 14(8) of the Control Regulation,Article 50(4) and (5) of the Control Regulation;

• “third country fishing boat” means a fishing vessel as defined in Article 4 of the Control Regulation, which flies the flag of, or is registered in, a third country.

• (2) In this Order, except where otherwise indicated, any reference to—

• (a) a numbered article is a reference to the article so numbered in this Order;

• (b) a numbered paragraph is a reference to the paragraph so numbered in the article in which it appears in this Order; and

• (c) a numbered Part is a reference to the Part so numbered in this Order.

• (3) For the purposes of this Order, any reference to a logbook, declaration or document includes, in addition to a logbook, declaration or document in writing any—

• (a) map, plan, graph or drawing;

• (b) photograph;

• (c) data, however reproduced, communicated via a satellite-based vessel monitoring system established under Article 9 of the Control Regulation;

• (d) data, however reproduced, communicated to a fisheries monitoring centre established under Article 9(7) of the Control Regulation;

• (e) disk, tape, sound track or other device on which sounds or other data (not being visual images) are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced; and

• (f) film (including microfilm), negative, tape, disk or other device on which one or more visual images are recorded so as to be capable (with or without the aid of some other equipment) of being reproduced.

• (4) Any information provided to any authority for the purpose of any provision of this Order is to be treated as also provided for the purpose of any equivalent provision.

• (5) Expressions used in this Order that appear in the Control Regulation or Implementing Regulation and which are not defined in this Order, have the same meaning in this Order as in those Regulations.

• (6) In this Order, a reference to anything done in writing includes an electronic communication as defined in section 15(1) of the Electronic Communications Act 2000 which has been recorded and is consequently capable of being reproduced.

Competent authority

3

The Scottish Ministers are—

• (a) the competent authority responsible for the fisheries monitoring centre under Article 9(8) of the Control Regulation for Scottish fishing boats and ... third country fishing boats in Scotland or the Scottish zone; and

• (b) the competent national authority for the purposes of Article 125 of the Implementing Regulation for Scottish fishing boats.

PART 2 — FIRST SALE OF FISHERIES PRODUCTS

First sale of fisheries products

4

• (1) In Article 59(1) of the Control Regulation, the reference to “auction centre” is to be construed as a reference to a registered auction.

• (2) Pursuant to Article 59(1) of the Control Regulation, it is an offence—

• (a) for first sale fisheries products to be offered for sale at an auction other than a registered auction;

• (b) for any person, other than a registered seller, to offer for sale first sale fisheries products at a registered auction.

• (3) In paragraph (2)(a), “auction” includes any business, premises or land used for the purpose of the first marketing of fisheries products.

Purchase of fisheries products by an unregistered buyer

5

Pursuant to Article 59(2) and (3) of the Control Regulation—

• (a) subject to paragraph (b), it is an offence for any person other than a registered buyer of fisheries products to purchase first sale fisheries products from a fishing boat;

• (b) paragraph (a) does not apply to a person who, in a single day, purchases first sale fisheries products weighing no more than 30 kilogrammes which are not subsequently placed on the market but are used only for private consumption.

Registration of buyers of fisheries products

6

• (1) For the purposes of Article 59(2) of the Control Regulation, a registered buyer of fisheries products is to be regarded as registered with the competent authority.

• (2) Any person may apply to the Scottish Ministers to be registered as a registered buyer of fisheries products.

• (3) Such an application must be in writing and must also—

• (a) be made in such form and manner;

• (b) include such information and undertakings; and

• (c) be delivered to such address,

as the Scottish Ministers may specify in a notice or from time to time require.

• (4) Having considered the application, the Scottish Ministers may—

• (a) register the applicant unconditionally;

• (b) register the applicant subject to such conditions as they consider appropriate; or

• (c) refuse the application.

• (5) The Scottish Ministers must notify the applicant in writing—

• (a) whether or not the application has been approved; and

• (b) where the application has been approved—

• (i) of any conditions that may be attached to the registration under paragraph (4)(b); and

• (ii) of the registration number allocated to the applicant for the purposes of this Part.

• (6) The Scottish Ministers must publish the fact that a person is a registered buyer of fisheries products in such manner as they see fit.

• (7) A registered buyer of fisheries products commits an offence if that buyer fails to comply with any—

• (a) condition to which the registration of that buyer is subject; or

• (b) undertaking provided in the application for registration.

• (8) A person commits an offence if that person, in an application under this article—

• (a) makes a statement which is false or misleading in a material way, knowing the statement to be false or misleading;

• (b) makes a statement which is false or misleading in a material way, being reckless as to whether the statement is false or misleading; or

• (c) intentionally fails to disclose any material information.

• (9) The registration of a registered buyer of fisheries products may be suspended where, in the view of the Scottish Ministers, the registered buyer of fisheries products has not—

• (a) complied with a condition of registration; or

• (b) complied with any requirement of Article 62, 63, 64, 66 or 67 of the Control Regulation.

Obligation of registered buyers of fisheries products to keep records

7

• (1) Subject to paragraph (2), a registered buyer of fisheries products must keep records of each purchase of first sale fisheries products made by that buyer at the place in the United Kingdom which is notified to the Scottish Ministers for that purpose in the buyer's application for registration.

• (2) Where a registered buyer of fisheries products does not operate that buyer's business from the United Kingdom, or where a registered buyer of fisheries products is not established in the United Kingdom, the registered buyer of fisheries products must send records of every purchase of first sale fisheries products made by the buyer to the Scottish Ministers by 31st December in each year.

• (3) The records referred to in this article must include all of the following information in relation to each individual purchase—

• (a) the date and location of the purchase;

• (b) the quantity of each species purchased;

• (c) the price paid for each species purchased;

• (d) the name and PLN number of the vessel which landed the fish;

• (e) the name, address and registration number of the seller; and

• (f) the reference number of the invoice or contract of sale.

• (4) A registered buyer of fisheries products must keep the records of each purchase, as required by this article, for the period of 3 years beginning with the date of that purchase.

• (5) A registered buyer of fisheries products must produce the records referred to in this article—

• (a) upon the request of a British sea-fishery officer; and

• (b) where the registered buyer of fisheries products does not operate that buyer's business from the United Kingdom, or where the registered buyer of fisheries products is not established in the United Kingdom, to the Scottish Ministers within 28 days of receiving a request from a British sea-fishery officer under sub-paragraph (a) to produce those records.

• (6) A registered buyer of fisheries products who fails to keep or send the records required by this article, or to produce the records in accordance with paragraph (5), commits an offence.

• (7) A person commits an offence if that person, in purported compliance with this article, keeps, sends or produces records which are false or misleading in a material way—

• (a) knowing the records to be false or misleading; or

• (b) being reckless as to whether the records are false or misleading.

Registration of sellers of fisheries products

8

• (1) A registered seller of fisheries products is authorised for the purposes of Chapter II of Title V of the Control Regulation (control of marketing: post-landing activities), so far as that seller sells first sale fisheries products by way of competitive bidding at a registered auction.

• (2) Any person may apply to the Scottish Ministers to be registered as a registered seller of fisheries products.

• (3) Such an application must be in writing and must also—

• (a) be made in such form and manner;