The ENAFA has hired top lawyer Torbin Foss to question the Norwegians regarding the cut in EU fishing quota in the Svalbard Zone for 2021
The European North Atlantic Fisheries Association (ENAFA) has hired a top lawyer to question the Norwegian government about this year’s EU quota cuts in the Svalbard.
Torben Foss of PricewaterhouseCoopers (PwC), a law and advisory firm, has approached the Norwegian Ministry of Foreign Affairs for a more detailed explanation of this year’s quota cuts to the EU in the Svalbard zone of close to 10,000 tonnes, according to a report in Fiskeribladet.
Torben Foss told Fiskeribladet that he would assist the ENAFA. The head of the organisation is Diek Parlevliet of the Dutch company Parlevliet van der Plas. This company owns or owns in five of the trawlers that fish in the Svalbard zone.
It is reported that the ENAFA is behind a subpoena of the Norwegian state at the Ministry of Trade, Industry and Fisheries. They require that the Quota Regulations of the Norwegian authorities must be set aside, and that the shipowners’ trawlers receive the fishing quotas set by the EU and the trawlers’ home states.
Foss has previously worked as director general of the Ministry of Fisheries and as assistant director general of fisheries.
The companies behind the subpoena believe that Norway’s quota decision has significantly reduced their ability to fish cod in the protected zone around Svalbard. This is stated by Foss in an email correspondence with the Ministry of Foreign Affairs.
The companies have asked Foss and PwC for assistance in explaining the Norwegian decision.
“The reduced quotas can result in a confrontation with the EU,” Foss writes in an email he sent to State Secretary Jens Frølich Holte. Holte has overall responsibility for ocean issues in the Ministry of Foreign Affairs.
“All vessels have quotas in the Svalbard zone and suffer, as we see it, a legal loss in that Norway have abandoned previous practices and reduced the quota in the fishing year 2021,” writes Foss.
Foss points out that for more than 30 years the EU has had a fixed programme for the distribution of quotas that member states fish in the Fisheries Protection Zone. He also points out that the EU has regarded the quota in the Svalbard zone as something they can set on their own basis. Now he believes that Norway have abandoned this practice.
“The EU and Norway do not agree on how far Norway’s expertise extends in the Fisheries Protection Zone, but the fixed distribution pattern between member states has meant that this disagreement has not had practical consequences,” Foss writes.
The lawyer points out that until 2020, Norway and the EU separately set a cod quota for EU vessels in the Svalbard zone, where the size of the quota was the same.
The EU has adhered to the third country quota set by Norway and Russia in the Norwegian-Russian Mixed Fisheries Commission. Russia, for its part, has not interfered in which third countries Norway grants fishing access to.
Foss is calling for an explanation of how Norway has concluded that the third country’s quota to the EU would be reduced by almost 10,000 tonnes of cod.
State Secretary Audun Halvorsen of the Ministry of Foreign Affairs explains the reduction by stating that the quota to the EU is set based on the catches the EU member states had before the zone was established in 1977.
In the first few years, quotas were specified in the individual EU countries, but since the EU adopted a common fisheries policy in 1983, the EU has since 1987 received an annual quota from Norway, Halvorsen points out in an e-mail.
Norway has awarded the EU a quota of 17,855 tonnes in 2021. The Norwegian Secretary of State believes this is the right proportion of the total quota, after the UK’s 45.57 per cent share has been deducted from the EU quota.
Halvorsen also points out in his response that the calculation of the quota is now completely in line with the approach Norway have always applied when the EU has expanded with new Member States.
Disagree with the explanation
Foss does not share the Secretary of State’s understanding of history. He pointed out that the UK has not received “its” share, which Norway has withdrawn from the EU quota. A proportion that the EU has distributed among other EU countries for years, and which the UK has been close to fishing since 1987.
“Norway have cut other EU countries’ fishing access considerably without warning. The proportion that the EU has been withdrawn has also not been awarded to the UK. The majority of the quota that has been drawn is distributed between Norway and Russia. No explanation has ever been given for this; Foss points out in his response to Halvorsen.
Lawyer Torben Foss told Fiskeribladet that Norway’s explanation is contradictory. He means Norway speaks with two tongues. Norway cannot use an explanation related to the EU and another related to the UK as a justification for reducing the EU and the UK’s overall quota base in the Fisheries Protection Zone.
“The EU argues Norway with fishing rights accrued between 1967 and 1977, while pointing out to the UK that the British have not fished their quotas for the past 34 years and that Norway can thus reduce the quota to the UK,” he says.
If Norway had been consistent in its argument, the UK should have been allowed to retain its share of 45.57 per cent of the third country’s quota previously allocated to the EU, Foss said.
“But the proportion deducted from the EU quota has not been allocated to the UK,” he points out. The half has Norway kept itself, and the half has Norway passed on to the Russians.
Foss also believes that the regulations that reduce EU fishing may be in violation of Norwegian law.
“Norway consistently and persistently asserts that the non-discrimination principle in the Regulations on the Fisheries Protection Zone is respected. In this case, the authorities must also take into care what the Supreme Court has said on this principle, namely that when catches must be restricted, those who have an established fishing activity must be given priority, he says.
The lawyer points out that the reality is that since the late 1980s, Spanish and Portuguese vessels have fished a much larger part of the quota in the Svalbard zone than they did in the years 1966–76.
“It has to be these last few decades that provide legal protection,” he says. Foss points out that this allocation key has been included in EU regulations that go as far back as the Norwegian quota regulations.
“Norway have never reacted to this internal distribution between EU member states or to the fact that Spanish and Portuguese trawlers have fished these shares,” he says.
Professor and international law expert at the University of Oslo, Geir Ulfstein, says that there seems to be agreement between Norway and the EU that it is historical fishing that will form the basis for the distribution of cod quotas around Svalbard. He is also clear that Norway have the right to set quotas in the Svalbard zone.
In an email to Fiskeribladet, Ulftstein answers this to a question about the right Norway have to set quotas for the EU in the Svalbard zone:
“It is undoubtedly that it is Norway that has the authority to set quotas in the fisheries protection zone around Svalbard, not the EU. EU fishermen must respect these quotas to avoid arrest. They can take legal action claiming that the quotas have been set in an invalid manner. But both sides seem to agree that it is historical fishing that will form the basis for the distribution of cod quotas around Svalbard, as has been done in recent years.
Resolved politically or legally
About the fact that Norway has used two different reasons in the calculation of quotas to the EU and to the UK, Ulfstein replies:
“Both parties seem to accept historical fishing as the basis for the quotas, but it is unclear to me why they come to different results in terms of the size of the quotas. The disagreement seems to be about how much quota the EU should have, after the UK withdrew. There’s obviously a lot of disagreement here. But this must be resolved politically or legally, not by defying Norwegian regulations.”