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Networked Enforcement in the Common Fisheries Policy through Data Sharing: Is There Room Left for Traditional Accountability Paradigms?

  • Federica CACCIATORE (a1) and Mariolina ELIANTONIO (a1)

Abstract

The Common Fisheries Policy (CFP) is one of the ever-increasing policy areas that have witnessed the creation of forms of “networked enforcement”, meaning enforcement structures in which several national and EU authorities cooperate. Amongst those are a number of legal requirements and applications for sharing data on fisheries between national and European competent authorities. This form of networked enforcement casts some questions as regards the existence of corresponding accountability mechanisms, which serve to legitimate the enforcement activities in the CFP. The aim of this paper is to examine the networked enforcement mechanisms arising from the CFP, with a special focus on the data-sharing activities and the role of European Fisheries Control Agency as pivotal to the cooperation between national authorities, with a view to assessing the gaps of accountability arising from them, and analysing the possible alternative ways to provide the enforcement phase with legitimacy.

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Copyright

Footnotes

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The authors wish to thank Francesco Spera for his research support. This article is a result of a common undertaking. However, sections II and IV can be directly attributed to Federica Cacciatore; sections III and V can be directly attributed to Mariolina Eliantonio; finally, section I, “Introduction” and section VI, “Conclusions”, contain common reflections.

Footnotes

References

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1 OECD, Regulatory Enforcement and Inspections, OECD Best Practice Principles for Regulatory Policy (Paris, OECD Publishing 2014 ); Scholz, JT, “Voluntary compliance and regulatory enforcement” (1984) 4 Law & Policy 385 .

2 García Quesada, M, “The EU as an ‘enforcement patchwork’: the impact of national enforcement for compliance with EU water law in Spain and Britain” (2014) 2 Journal of Public Policy 331 ; Tallberg, J, “Paths to Compliance: Enforcement, Management and the European Union” (2002) 56 International Organization 609 ; Vervaele, J, Compliance and Enforcement of European Community Law (The Hague, Kluwer 1999 ).

3 See, for all, Scholten, M et al, “The proliferation of EU enforcement authorities: a new development in law enforcement in the EU” in Scholten, M and Luchtman, M (eds), Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability (Cheltenham, Edward Elgar 2017) p 1 .

4 By direct enforcement, we mean the cases in which the Commission or an ad hoc agency are endowed with direct inspection or sanction powers against citizens and/or enterprises, that they can exert without involvement of a national competent authority. See Scholten, M, “Mind the Trend! Enforcement of EU law has been moving to ‘Brussels’” (2017) 24 Journal of European Public Policy 1348.

5 Over the last decades many EU agencies have been set up with enforcement powers: see Wonka, A and Rittberger, B, “Credibility, Complexity and Uncertainty: Explaining the Institutional Independence of 29 EU Agencies” (2010) 33 West European Politics 730 .

6 See, eg, the ESMA with regard to some specific types of insurance enterprises, which are now under its direct inspecting and sanctioning powers.

7 Van der Heijden, J, “The long, but promising, road from deterrence to networked enforcement” in Drake, S and Smith, M (eds), New Directions in the Effective Enforcement of EU Law and Policy (Cheltenham, Edward Elgar 2016) p 77 .

8 Ayres, I and Braithwaite, J, Responsive Regulation. Transcending the Deregulation Debate (Oxford, Oxford University Press 1992).

9 Eberlein, B and Newman, AL, “Escaping the International Governance Dilemma? Incorporated Transgovernmental Networks in the European Union” (2008) 21 Governance 25 .

10 Coen, D and Thatcher, M, “Network governance and multi-level delegation: European networks of regulatory agencies” (2008) 28 Journal of Public Policy 49 .

11 JP Olsen, “Democratic Accountability and the Changing European Political Order”, ARENA Working Paper 8/2017 (2017).

12 ibid, p 1.

13 J Polak and E Versluis, “The virtues of interdependence and informality: an analysis of the role of transnational networks in the implementation of EU directives” in Drake and Smith, supra, note 7, p 105; Van der Heijden, supra, note 7.

14 Sørensen, E and Torfing, J, “Making governance networks effective and democratic through metagovernance” (2009) 87 Public Administration 234 .

15 Börzel, T and Heard-Lauréote, K, “Networks in EU Multi-level Governance: Concepts and Contributions” (2009) 29 Journal of Public Policy 135 .

16 Van der Heijden, supra, note 7, p 102.

17 Mastenbroek, E and Martinsen, DS, “Filling the gap in the European administrative space: the role of administrative networks in EU implementation and enforcement” (2018) 25(3) Journal of European Public Policy 422 . See also Heidbreder, EG, “Multilevel policy enforcement: innovations in how to administer liberalized global markets” (2015) 93(4) Public Administration 940 .

18 Kim, J, “Networks, Network Governance, and Networked Networks” (2006) 11 International Review of Public Administration 22 .

19 ibid. See also Powell, WW, “Neither Markets nor Hierarchy” in Staw, B and Cummings, LL (eds), Research in Organizational Behavior (Greenwich, JAI Press 1990) p 295 .

20 Klijn, E-H, “Governance and Governance Networks in Europe” (2008) 10 Public Management Review 505 .

21 Blauberger, M and Rittberger, B, “Conceptualizing and theorizing EU regulatory networks” (2015) 9 Regulation & Governance 367 ; Levi-Faur, D, “Regulatory networks and regulatory agencification: towards a Single European Regulatory Space” (2011) 18 Journal of European Public Policy 810 ; Van Boetzelaer, K and Princen, S, “The Quest for Co-ordination in European Regulatory Networks” (2012) 50(5) Journal of Common Market Studies 819 .

22 Scholten, M and Luchtman, M (eds), Law Enforcement by EU Authorities. Implications for Political and Judicial Accountability (Cheltenham, Edward Elgar 2017).

23 Van Boetzelaer and Princen, supra, note 21, p 820.

24 F Cacciatore and M Eliantonio, “Fishing in troubled waters? Shared enforcement of the Common Fisheries Policy and accountability gaps” in Scholten and Luchtman, supra, note 22, p 168.

25 Mastenbroek and Martinsen, supra, note 17.

26 Jans, JH et al (eds), Europeanisation of Public Law (Groningen, 2nd edn, Europa Law Publishing 2015).

27 Mastenbroek and Martinsen, supra, note 17.

28 Cacciatore and Eliantonio, supra, note 24.

29 European Parliament, Monitoring the application of European Union law. 2016 Annual Report (Brussels, European Commission 2017) p 29.

30 For more information see <ec.europa.eu/maritimeaffairs/documentation/facts_and_figures/index_en.htm>, accessed 11 May 2019.

31 European Union, Maritime affairs and fisheries (Luxembourg, Publications Office of the European Union 2014).

32 Johnson, C, “Fisheries Enforcement in European Community Waters Since 2002-Developments in Non-Flag Enforcement” (2008) 2 The International Journal of Marine and Coastal Law 249 ; Symes, D, “Reform of the European Union’s Common Fisheries Policy: Making Fisheries Management Work” (2009) 2 Fisheries Research 99 .

33 Gray, T and Hatchard, J, “The 2002 reform of the Common Fisheries Policy’s system of governance – rhetoric or reality?” (2003) 27 Marine Policy 545 ; DaRocha, J-M et al, “The Common Fisheries Policy: An enforcement problem” (2012) 36 Marine Policy 1309 . The CFP has long been accused of “being unable to provide sustainable fisheries”: Hegland, TJ and Raakjær, J, “Recovery Plans and the Balancing of Fishing Capacity and Fishing Possibilities: Path Dependence in the Common Fisheries Policy” in Gezelius, SS and Raakjær, J (eds), Making Fisheries Management Work. Implementation of Policies for Sustainable Fishing (New York, Springer 2008) p 131 .

34 Eliasen, SQ et al, “Decentralising: The implementation of regionalization and co-management under the post-2013 Common Fisheries Policy” (2015) 62 Marine Policy 224 .

35 Council Regulation (EC) 768/2005 establishing a Community Fisheries Control Agency and amending Regulation (EEC) 2847/93 establishing a control system applicable to the common fisheries policy [2005] OJ L128/1.

36 CFCA, Community Fisheries Control Agency Work Programme for 2007 (Vigo, Community Fisheries Control Agency 2007).

37 Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy [2009] OJ L343/1.

38 On the CFP’s high percentage of non-compliance, see González Laxe, F, “Dysfunctions in common fishing regulations” (2010) 34 Marine Policy 182 . See also Hadjimichael, M et al, “Distribution of the burden of fisheries regulations in Europe: The north/south divide” (2010) 34 Marine Policy 795 .

39 Scholten et al, supra, note 3. See also the specific findings from the research team on the verticalisation of enforcement established within the Renforce group: <renforce.rebo.uu.nl/bouwsteenprojecten/verticalisering-en-toezichthouders/>.

40 Cacciatore and Eliantonio, supra, note 24.

41 EFCA, Core curriculum for the training of fisheries inspectors & union inspectors - 3 General principles and specific types of fisheries inspection (Luxembourg, Publications Office of the European Union 2015).

42 See <www.efca.europa.eu/en/content/mediterranean>. See specifically Art 10 of 2014/156/EU: Commission Implementing Decision of 19 March 2014 establishing a specific control and inspection programme for fisheries exploiting stocks of bluefin tuna in the Eastern Atlantic and the Mediterranean, swordfish in the Mediterranean and for fisheries exploiting stocks of sardine and anchovy in the Northern Adriatic Sea OJ L 85/15.

44 Equipment Identity Register (EIR) helps operators to protect their networks and revenues against the use of stolen and unauthorised devices.

46 Cacciatore and Eliantonio, supra, note 24.

47 Hofmann, HCH et al, Administrative Law and Policy of the European Union (Oxford, Oxford University Press 2011) p 16 .

48 Schneider, J-P, “Basic Structures of Information Management in the European Administrative Union” (2014) 20 European Public Law 89 . See also Galetta, DU et al, “Information Exchange in the European Administrative Union: An Introduction” (2014) 20 European Public Law 68 ; Wettner, F, “The General Law of Procedure of EC Mutual Administrative Assistance” in Jansen, O and Schöndorf-Haubold, B (eds), The European Composite Administration (Antwerp, Intersentia 2011) p 314 .

49 Cacciatore and Eliantonio, supra, note 24.

50 Bovens, M, “Analysing and Assessing Accountability: A Conceptual Framework” (2007) 13 European Law Journal 450 .

51 For the “Mediterranean” JDP, the SCIP was issued by Commission Implementing Decision 2014/156/EU of 14 March 2014, OJ L 85/15. The data to be exchanged are listed in Art 12.

53 EFCA, AB Decision 17-III-4 of 18/10/2017 Budget and establishment plan of the European Fisheries Control Agency for year 2018 (Vigo, EFCA 2018) p 7 .

54 Decreto Legislativo 9 gennaio 2012 no 4, Misure per il riassetto della normativa in materia di pesca e acquacoltura, a norma dell’articolo 28 della legge 4 giugno 2010, n. 96, Official Journal of the Italian Republic, 1 December 2012, no 26.

55 In Italy, the competent authority in charge of the application of Regulation no 1224/2009 is, pursuant to Legislative Decree no 4/2012, the Ministry of agriculture, food and forestry, with its Directorate General for Fisheries and Aquaculture. Control and inspection activities are carried out by the national Harbour masters, through the territorial partition into maritime districts, under the authority of the Ministry. Other central and local maritime authorities then support the General commander, which coordinates the activities: the Coast Guard, the Navy and the Carabinieri, all headed by the Ministry of Defence; the national police, belonging to the Ministry of Interior; the finance police, headed by the Ministry of Finance; and, finally, the Ministry of Health, as regards veterinary issues.

56 Arrêté du 30 décembre 2017 portant organisation et attributions de la direction des pêches maritimes et de l’aquaculture, Official Journal of the French Republic, 31 December 2017, no 305.

57 In France, the competent authority in charge of fisheries management is the Ministry of Agriculture and Food, with its Directorate of Maritime Fisheries and Aquaculture. Control and inspection activities are carried out, on the basis of national and regional plans, by a number of local authorities, depending on their respective area of competence and on the nature of the controls themselves. The list of the competent authorities, both for administrative and judicial controls, is given in the Rural and Maritime Fisheries Code. In practice, most of the controls are conducted by the maritime affairs administration, the Navy, and the national and maritime gendarmerie. See further the consolidated version of the Rural and Maritime Fisheries Code available at <www.legifrance.gouv.fr/affichCode.do?cidTexte=LEGITEXT000006071367>.

58 The Fund was established by Regulation (EU) No 508/2014 of the European Parliament and of the Council of 15 May 2014 on the European Maritime and Fisheries Fund [2014], OJ L 149/1. See <ec.europa.eu/fisheries/cfp/emff_en>.

59 For Italy: Programma operativo del FEAMP, available at <ec.europa.eu/fisheries/sites/fisheries/files/docs/body/op-italy_it.pdf>. For France: Programme Operationnel Période 2014-2020, available at <ec.europa.eu/fisheries/sites/fisheries/files/docs/body/op-france_fr.pdf>.

60 Respectively: Italian OP, 62; French OP, 107.

61 Hofmann, H, and Tidghi, M, “Rights and Remedies in Implementation of EU Policies by Multi-Jurisdictional Networks” (2014) 20 European Public Law 154 . See also Eliantonio, M, “Judicial Review in an Integrated Administration: the Case of ‘Composite Procedures’” (2014) 7 Review of European Administrative Law 65 and specifically on data sharing activities, M Eliantonio, “Information Exchange in European Administrative Law: A Threat to Effective Judicial Protection?” (2016) 23 Maastricht Journal of European and Comparative Law 531.

62 Case 22/70 Commission v Council (ERTA) ECLI:EU:C:1971:32, para 42.

63 Case C-521/04 P(R) Tillack v Commission ECLI:EU:C:2005:240. See, however, Joined Cases F-5/05 and F-7/05 Violetti and Others v Commission, ECLI:EU:F:2009:39, where a claim against the forwarding of information from OLAF to the Italian authorities was considered as a reviewable act by the Civil Service Tribunal. The ruling was, however, overturned on appeal by the General Court on the basis of the IBM case law. Case T-261/09 P [GC] Commission v Violetti and Others, ECLI:EU:T:2010:215.

64 Case C-322/88 Grimaldi v Fonds des maladies professionnelles ECLI:EU:C:1989:646, para 8; Case T-193/04 Tillack v Commission ECLI:EU:T:2006:292, para 80.

65 Although this does not seem to have ever occurred, according to a search for the keyword “EFCA” in the Curia database.

66 Case T-193/04 Tillack v Commission, para 80.

67 Pellissier, G, Recours pour excès de pouvoir: conditions de recevabilité (Encyclopedie Dalloz, Repertoire du contentieux administratif 2010); Cerulli Irelli, V, Lineamenti del diritto amministrativo (Milan, Giuffrè 2009) p 385 .

68 For France, see eg Conseil d’Etat, 19 January 2011, no 332635, Mazroui; Conseil d’Etat, 15 Janaury 1997, no 177989 and 180694, Assoc. Radio Sud-Vendée-Pictons; for Italy, see eg Consiglio di Stato, sez. V, 20 August 2015, no 3955; TAR Lecce, Puglia, sez. II, 18 February 2016, no 346.

69 For France, see eg Conseil d’Etat 29 July 1994, no 140976, Assoc. pour la promotion et la défense du cadre de vie à Bartenheim; for Italy, see eg Consiglio di Stato, sez. IV, 28 March 2012, no 1829.

70 Opinion of AG Bobek in Case C-557/16 Astellas Pharma GmbH ECLI:EU:C:2017:957, para 92.

71 Conseil d’Etat, 9 June 1999, no 190384, Forabosco. See also Conseil d’Etat, 23 May 2003, no 237934, Catrina.

72 See further the reflections contained in Eliantonio (2014), supra, note 61, and Eliantonio (2016), supra, note 61.

73 Cacciatore and Eliantonio, supra, note 24.

The authors wish to thank Francesco Spera for his research support. This article is a result of a common undertaking. However, sections II and IV can be directly attributed to Federica Cacciatore; sections III and V can be directly attributed to Mariolina Eliantonio; finally, section I, “Introduction” and section VI, “Conclusions”, contain common reflections.

Networked Enforcement in the Common Fisheries Policy through Data Sharing: Is There Room Left for Traditional Accountability Paradigms?

  • Federica CACCIATORE (a1) and Mariolina ELIANTONIO (a1)

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