Fisheries policing: controls and penalties

L'all the rules governing sea fishingThe management of fisheries resources, the marketing of products and company structures cannot be effective without a robust system of controls and penalties. The task of the fisheries police is to ensure compliance with these complex regulations, which stem from both European and national law. Inspections can be carried out at sea or on land, and any infringements detected can have serious administrative and legal consequences for those involved in the industry.

Who are the officers responsible for these checks? How are they carried out? What are the penalties for infringements? Knowing your rights and obligations in the event of an inspection is vital for everyone involved in the sector. This article explains how the fisheries police are organised, the inspection procedures and the range of penalties applicable.

Who carries out the checks? The fisheries police authorities

Monitoring compliance with fisheries rules is a responsibility shared between the European and national authorities.

• At European level The Common Fisheries Policy (CFP) provides for a common control framework, the implementation and supervision of which is primarily the responsibility of the European Commission. To assist it in this task, theEuropean Fisheries Control Agency (EFCA)based in Vigo, Spain (set up after the date of the source document but now a key player), coordinates Member States' control and inspection operations, in particular through joint deployment plans. The Commission also has its own European inspectors. Their role is to verify that Member States are correctly applying EU law and fulfilling their control obligations. They may attend national controls and carry out audits of national control systems, but their direct powers of inspection over operators are limited: they may not act on their own initiative without being accompanied by national officials, and they have no direct powers of coercion over individuals or businesses. If the Commission considers, following its checks or the reports of its inspectors, that irregularities have been committed by a Member State in the application of the rules or in its checks, it can initiate infringement proceedings before the Court of Justice of the European Union (CJEU). A Member State that fails to comply with its control obligations can be condemned, or even fined or fined if it persists in its failure, as France has been in the past.
• At national level The primary responsibility for on-the-ground monitoring lies with the Member States. In France, a large number of officials are empowered to investigate and record breaches of fisheries law. The Code rural et de la pêche maritime and other texts list these authorities:
  • Administrators, inspectors and inspectors of maritime affairs.
  • Officers in the technical and administrative corps of maritime affairs.
  • Commanders and officers of French Navy vessels and captains of government aircraft.
  • Officers of the Gendarmerie maritime.
  • Seafarers' trustees.
  • Customs officers.
  • Judicial police officers (OPJ/APJ).
  • Sworn guards and fishermen's guardians (for certain local offences).
  • Fishing establishment control technicians or veterinary service officers (for health aspects on land).

These officers exercise their powers in maritime areas under French sovereignty or jurisdiction (including remote exclusive economic zones such as those of the French Southern and Antarctic Lands - TAAF). They can also inspect French ships on the high seas or in foreign waters (subject to international law and any agreements).

How are checks carried out? Police operations

Control operations can take various forms, at sea or on land.

• Controls at sea The commanders of government vessels and aircraft responsible for surveillance at sea have extensive powers. A typical control operation takes place in several stages:
  1. Recognition This involves identifying the suspect vessel and verifying its nationality (radio request, visual observation).
  2. Visit If necessary, the captain can order a visit to the vessel being inspected. A survey team then goes on board to inspect the catches (species, sizes, quantities), fishing gear (mesh sizes, conformity), storage or processing facilities, and the mandatory on-board documents (fishing log - often electronic these days), licence, permittraceability documents, etc.).
  3. Unfolding If the master refuses the inspection, or if sea conditions make it dangerous or impossible, the master may order the ship to divert to a designated position or port to allow the inspection to be carried out alongside.
  4. Coercive measures In the event of refusal to comply with orders (refusal to identify oneself, to accept the visit, to divert), the commanding officer of the government vessel may, after regulatory warnings (radio warnings, visual/audible signals), use force in a graduated manner. This may include warning shots (warning shots fired at the bow of the ship, authorised by the prefectural maritime authority), or even shots aimed at stopping the ship (stop shots directed at non-vital parts). Authorisation to fire directly at the ship ("target practice") is exceptional and is decided by the Prime Minister.
• Onshore controls : Authorised officers can also carry out checks in ports (on disembarkation, in the auctions), in fish merchants or processors, hauliers or retailers. They may also visit marine culture farms, catching establishments, and premises and vehicles used for professional purposes. Refusal to allow these officers to carry out checks constitutes a specific offence.
• The minutes At the end of the inspection, if one or more offences are suspected or found (fishing in a prohibited area, exceeding the quota, use of illegal gear, catching undersized species, lack of compulsory documents, false declaration, etc.), the officers draw up an official report. This document, which describes the facts in detail, will serve as the basis for any administrative or legal action that may be taken.

Possible sanctions: a graduated scale

Infringements of fisheries rules can result in a range of penalties, from immediate precautionary measures to criminal convictions and administrative sanctions.

• Immediate precautionary measures To stop the offence and preserve evidence, officers can take action as soon as they see the facts:
  • Apprehension (1983 Act): Officers may seize illegal fishing nets, gear and equipment, as well as presumed illegal fishing products and, potentially, the vessel or boat used to commit the offence. These items must be returned to the owner within 72 hours if they are not formally seized.
  • Data entry Seizure: Seizure is ordered by the competent administrative authority (e.g. the Director of Maritime Affairs) and is mandatory for prohibited fishing gear and illegally caught fish (or their value). Seizure of the vessel itself remains optional and depends on the seriousness of the offence. Release of the vessel may be obtained in return for the posting of a bond set by the judge.
  • Confiscation and destruction If the bond is not paid, or if the vessel poses a risk to safety or the environment, the court can order the confiscation of the seized vessel. In some cases, it may even order the vessel's destruction.
• Administrative penalties In addition to criminal proceedings, the authorities may impose penalties:
  • Suspension or withdrawal of authorisations Any fishing authorisation (national licence, Special Fishing Permit - SFP) or the Licence to Commence Operations (PME) may be temporarily suspended or permanently withdrawn in the event of serious or repeated breaches of management or conservation rules.
  • Administrative fines Administrative fines: The decree-law of 1852 (amended in particular by the Agricultural Guidance Act of 2006) provides for the possibility of imposing administrative fines. For certain quantitative offences (exceeding quotas, undersized fishing, etc.), the amount of the fine can be multiplied by the number of quintals fished, held or marketed illegally.
  • Specific penalty for a real economic link To combat "flags of convenience" within the EU itself, French law (article 3-2 of the decree-law of 1852, amended by the law of 1997) requires a vessel flying the French flag to have a genuine economic link with French territory and to be managed from a permanent establishment in France in order to be able to fish under national quotas or obtain an authorisation. Failure to comply with this requirement may result in an administrative fine or the suspension/withdrawal of the authorisation.
• Judicial sanctions :
  • The transaction A special feature of fisheries litigation is the possibility of a penal transaction. The administration (director of maritime affairs or minister) can propose that the offender pay a lump sum to the Treasury to extinguish the prosecution. This proposal must be approved by the public prosecutor. If the settlement is accepted and implemented, it avoids a criminal trial.
  • Criminal proceedings In the absence of a settlement or for the most serious offences, legal proceedings are brought before the criminal courts (police court for minor offences, criminal court for misdemeanours). There are specific rules on territorial jurisdiction (court of the port of diversion, or of the port of registration, or of the residence of the offending officer for foreign vessels). Prosecutions are conducted by the public prosecutor, but the maritime affairs administration can also initiate them. Professional organisations (fisheries committees), unions or POs can bring a civil action to claim compensation for the damage suffered by the profession.
  • Persons responsible and penalties Most often, it is the ship's captain who is prosecuted as the main perpetrator. Crew members may be prosecuted as accessories. The shipowner, even if he is not on board, may be declared civilly liable for fines and costs resulting from offences committed by his employees (skipper and crew), or even criminally liable in certain cases. The penalties incurred are mainly criminal fines, which can be high, as well as confiscation of the equipment used in the offence or of the proceeds of the offence.

Fisheries inspections are an inescapable fact of life for the fishing industry, and can have major financial and operational consequences. In the event of an inspection or if proceedings are brought against you or your company, it is essential to understand the issues at stake and to assert your rights. Our firm has expertise in maritime law and can help you assist with these proceduresWhether at the administrative stage or before the courts. Do not hesitate to contact us for an assessment of your situation.

Sources

• Code rural et de la pêche maritime (legislative part, Book IX, Title III; corresponding regulatory part - organisation, control, infringements, administrative and criminal penalties).
• Transport Code (Part V: Police and security of maritime transport - may contain provisions on the powers of authorities at sea).
• Code of Criminal Procedure (general rules of criminal procedure, penal transaction).
• Defence Code (powers of military authorities at sea).
• Decree-law of 9 January 1852 on maritime fishing (amended, contains provisions on offences and penalties).
• Law no. 83-582 of 5 July 1983 on seizure (check for possible codification).
• Law no. 2006-1772 of 30 December 2006 on water and aquatic environments (article 97 amending the 1983 law on confiscation/destruction).
• Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the Common Fisheries Policy (current framework regulation on control).  
• Implementing Regulation (EU) No 404/2011 laying down detailed rules for the application of Regulation (EC) No 1224/2009.
• Case law (examples cited in the source if relevant, CJEU rulings on State failings).