Legal action launched against the European Commission for its objection to IOTC FADs resolution

May 10, 2023


Blue Marine Foundation is submitting evidence in support of the legal action being launched today by French environmental NGO BLOOM against the European Commission for its objection to an essential conservation measure recently adopted in the Indian Ocean to combat the region’s chronic overfishing of tuna stocks. This comes in the middle of the annual meeting of the Indian Ocean Tuna Commission (IOTC) – the intergovernmental body that decides how the region’s tuna stocks are managed – taking place this week in Mauritius.

The controversial objection exempts the EU’s entire industrial purse seine fleet from new rules adopted in February to curb the use of harmful drifting fish aggregating devices (FADs) – a type of fishing gear used by the EU fleet to catch juvenile tuna in their millions. The legal action taken by BLOOM and supported by Blue Marine claims that the EU objection is in breach of EU law and, in particular, in breach of the precautionary principle. It will require the European Commission to review its objection on grounds of illegality.

Both yellowfin tuna and bigeye tuna are overfished in the Indian Ocean, and a very high proportion of these tunas – 97% in the case of yellowfin – when caught by purse seine vessels around these controversial drifting FADs in the region, are juveniles, further impacting the health of the stocks.

Despite the perilous state of the region’s tuna stocks, the European Union continues to be the largest harvester of chronically overfished Indian Ocean yellowfin tuna, and of tropical tuna in general in the Indian Ocean. This is achieved largely through the use of drifting FADs by the European Union’s industrial purse seine fleet.

At the last meeting of the IOTC – a special session held just to discuss FADs – Resolution 23/02 on drifting FADs was adopted by a two-thirds majority, following a vote by secret ballot in the final hours of the three-day meeting in Mombasa, Kenya.

The Resolution, which will come into effect on 1 January 2024, includes a phased reduction in the number of drifting FADs permitted per vessel, from 300 to 250 in the first year and to 200 in 2025. It also mandates the creation of a drifting FAD registry, allowing for increased transparency and monitoring of the harmful devices. Most importantly, Resolution 23/02 puts in place a 72-day closure period for drifting FADs in the Indian Ocean.

Jess Rattle, Head of Investigations at Blue Marine Foundation, said: “The EU is happy to go along with FAD closure periods in other oceans with far healthier stocks, but not in the Indian Ocean where its purse seine fleet does most of its fishing. Not only does this defy logic – as two out of three of the Indian Ocean’s tuna stocks are in the red – but it also ignores the wishes of a two-thirds majority of IOTC members who voted to have the measure adopted.”

In its letter of objection in April 2023, the EU suggested that the Resolution would result in “a gradual phasing out of DFADs”, despite the fact that this was shown by Indonesia to be incorrect. However, most importantly, the European Union cited a lack of scientific advice supporting the measure.

The letter of support being submitted by Blue Marine makes it clear that the precautionary approach is a binding and fundamental principle of both European and international fisheries law which dictates particular caution in situations of scientific uncertainty and explicitly prohibits reliance on the inadequacy of scientific advice as an excuse to postpone or prevent the adoption of conservation and management measures.

Priyal Bunwaree, Senior Legal Counsel at Blue Marine Foundation said: “It is a peculiar decision by the European Union to object on the basis of a lack of scientific support, since the new IOTC FADs Resolution explicitly states that the reason for the ban relies on the precautionary approach, as laid out in the United Nations Fish Stocks Agreement, to which the European Union is a party.”

The European Commission will have 22 weeks to act upon the concerns raised by the NGOs. It could reconsider its position and align itself with the law by withdrawing its objection as permitted by IOTC procedures. If the EU Commission fails to act or rejects the NGOs’ points, it could lead to proceedings before the EU courts.


Cover image: Alex Hofford/Greenpeace

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