Legal opinion has relevance for all EU member states regarding control of seafood imports, according to new commentary

Date: June 15, 2017

Source: Environmental Justice Foundation
Author: Victoria Mundy

Expert opinion provides clarity on member state legal obligations to control seafood imports under the European Union’s illegal fishing regulation – identifies breaches of EU law

An independent, expert opinion[i] commissioned by three non-governmental organisations – the Environmental Justice Foundation (EJF), Oceana and WWF – has provided the first comprehensive legal interpretation of member state (MS) obligations to control seafood imports under the European Union’s (EU) 2008 Regulation to combat illegal, unreported and unregulated (IUU) fishing[ii].

The legal opinion was produced to evaluate Germany’s compliance with its obligations under the IUU Regulation to enforce the EU prohibition on the import of seafood stemming from IUU fishing activities. The opinion concludes that current procedures in Germany are inadequate to effectively enforce the import prohibition and that Germany is thus in breach of EU law.

However, the opinion is of broader significance in that it brings much-needed legal clarity to the content and scope of MS obligations to control seafood imports through the IUU Regulation’s catch certificate (CC) scheme. These obligations are relevant to all 28 MS, thus the opinion’s application extends beyond the German context.

The opinion focuses primarily on Articles 16 and 17 of the IUU Regulation, which set out the obligations on MS to check, inspect and verify CCs based on the risk that the seafood imports concerned stem from IUU fishing activities.

  • Article 16 concerns the obligation on MS to undertake initial documentary checks of CCs for imported seafood.
  • Article 17 concerns the further verification (i.e. more detailed scrutiny) of the information in CCs and consignments themselves based on risk management.

These Articles are currently subject to crucial differences in interpretation between MS, with serious implications for harmonisation and effective implementation of the CC scheme. A recent analysis of MS biennial reports submitted under the IUU Regulation identified wide disparities in implementation of import controls across the EU[iii], resulting in the possible diversion of high-risk trade flows to MS that implement less stringent procedures for the assessment of import CCs and creating uneven standards for operators.

A commentary on the legal opinion, published today, concludes that further precision is required from the European Commission on the content and scope of MS obligations under the IUU Regulation to check and verify CCs on the basis of risk management. A definitive, EU wide interpretation of Articles 16 and 17 is a prerequisite for the harmonised and effective implementation of the import prohibition in all 28 MS.

The commentary argues that any interpretation should specify, as a minimum, the required frequency and quality of checks and risk analysis, including the proportion of CCs concerned, the nature of checks to be carried out, and the mandatory characteristics of the risk management system.

Such clarifications are especially crucial as the Commission continues its work to develop an EU-wide IT system to support MS in their CC controls. Key checks must be automated within the IT system to increase efficiency and reduce administrative burden on MS authorities, with robust risk criteria and data sources integrated into the system to facilitate the identification of high-risk consignments for verification.

The full commentary on the legal opinion may be viewed here.

[i] Verheyen, R. (2017). Legal opinion: The enforcement obligation of Member States based on the IUU Regulation: effective checking of all catch certificates as a prerequisite to halt illegal fishing and to protect natural marine resources. Rechtsanwälte Günther Partnerschaft, Hamburg. February 2017. Available at:

[ii] Council Regulation (EC) No 1005/2008/of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, OJ L 286, 29.10.2008, p. 1.

[iii] The reports submitted by member states for the period 2010-2015 were obtained via access to information requests to the European Commission. The reports include, amongst other information, statistics on imports under the IUU Regulation, details of import control procedures and recommendations to improve current systems and frameworks. These data were analysed to provide an overview of progress towards the full and effective implementation by member states of the IUU Regulation CC scheme. Progress was measured against the following key requirements of the IUU Regulation: (1) routine documentary checks of all import CCs received; (2) application of a risk-based approach to assessing CCs; (3) verification of CCs to ascertain compliance of imports; (4) physical inspections of consignments; (5) rejection of consignments in case of non-compliance; (6) biennial reporting to the Commission on activities under the Regulation.

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