Download Janez Potočnik Member of the European Commission Cc. Timo

Janez Potočnik
Member of the European Commission
Cc. Timo Makela
E. International Affairs, Life and Eco-innovation
Nicolas Hanley
E.1 International Relations and Enlargement
Stefan Leiner
B.3 Nature
15 January, 2013
Dear Sirs,
We write regarding the Commission Draft Common Position on Iceland’s Accession (16831/12) in response to Iceland’s
Negotiating Position (CONF-IS 23/12) which has come to our attention.
We would note that Iceland is subject to the requirement of full acceptance by a candidate state of the European Union
(EU) acquis (Community Patrimony). The European Parliament has reinforced the acquis in its interpretation as a
‘criterion of global integration’.1 We believe that Iceland, as a potential new Member State, must accept without
reservation the full body of EU law and the full suite of obligations thereunder, from the commencement of its
membership.
As you will be aware Iceland's foreign policy is strongly influenced by whaling interests linked to its politically influential
fishing industry; it currently self-allocates quotas2 to hunt fin and minke whales under a claim to a ‘reservation’ to the
1
In its resolution on the structure and strategy for the EU with regard to its enlargement adopted on t20/01/1993, the European
Parliament emphasised that all candidate states must accept the acquis communitaire, including the TEU and the objective of
further integration (A3-0189/92)
2
Iceland’s Fisheries Minister issued a regulation allowing commercial whaling to resume again in 2009, for a block of five
years 2009-2013, to be based on quota advice from the Marine Research Institute, HAFRO. HAFRO has issued such advice
for each of the years.
moratorium on commercial whaling imposed by the International Whaling Commission (IWC), and exports thousands of
tonnes of whale products annually under a reservation to the Appendix I listing of whales by the Convention on
International Trade in Endangered Species of Wild Fauna and Flora (CITES). It is clear from CONF-IS 23/12 that Iceland
intends to continue commercial whaling and exports under special arrangements negotiated with the EU, including
amendments, adaptations and derogations to key Directives and Regulations. CONF-IS 23/12 even suggests that Iceland
is considering expanding its hunt to three more protected species - sperm, sei and humpback whales. It is imperative
that the EU dissuades Iceland from this course of action in the accession negotiations and we are grateful to see the
positive aspects of the position that the Commission proposes to be taken.
We urge the Commission and member states to strongly assert the negotiating position that the EU will not accept any
temporary or permanent derogation to any EU laws and policies providing protection of cetaceans, and that Iceland
must permanently cease whaling and trade in whale products and remove its IWC and CITES reservations in order to join
the EU. We have the following specific comments on the draft Common Position:
Iceland’s negotiation position on whaling
In addition to indicating that it intends to take various derogations to Directives 92/43/EEC (the Habitats Directive) to
permit its whaling to continue, Iceland proposes to remove whale species from the strict protection of Annex IV. This is a
substantive amendment that affects the ‘unity of the Member States’ and their pursuit of joint policy with respect to the
strict protection of cetaceans (and other marine mammals) and should be rejected. We therefore support the stated
position of the Commission in the Draft Common Position in, “invit[ing] Iceland to reconsider its request, recalling that
all whale species fall under Annex IV of strictly protected species of the Habitats Directive and also recalling the
International Whaling Commission's moratorium on whaling to which the EU adheres”.
In addition we urge the Commission and member states to strongly assert the negotiating position that Iceland must
adhere to the Habitats Directive irrespective of any future position adopted by the IWC with respect to commercial
whaling.
We anticipate that in seeking to exempt itself from the prohibitions in Article 12 (1) and 12(2) of the Habitats Directive,
Iceland will claim that at least one of the conditions for a derogation in Article 16 apply. We urge the Commission and
member states to pre-empt each of these arguments in negotiations, warning that they are unlikely to be accepted by
the European Court of Justice. For example, Iceland is likely to claim that whaling is necessary "to prevent serious
damage, in particular to crops, livestock, forests, fisheries and water and other types of property." However, there is no
clear and accepted evidence that whales are a threat to Iceland’s fish stocks or that culling whales would protect them.3
The Commission and member states should reject Iceland’s claim, draw attention to the lack of evidence and to IUCN
resolution 4.027 Relationship between fisheries and great whales which "ACKNOWLEDGES that the great whales play no
significant role in the current crisis affecting global fisheries".
We would also note that the European Court of Justice has looked to various sources to assist with its interpretation of
EU law; of particular interest, whilst not binding, is the ‘Guidance document on the strict protection of animal species of
Community interest under the Habitats Directive 92/43/EEC’4, herein known as the ‘Guidance’. The ‘Guidance’ at (21)
notes that,
“However, for some species and in some situations, the adoption and implementation of purely prohibitive measures
may not be sufficient, and may not guarantee effective implementation of Article 12. In such cases, Article 12 requires
the adoption and implementation of preventive measures. It is also evident from the wording of Articles 12 and 1(i),
and from the objective of “maintaining” a favourable conservation status, that Member States are bound by their
obligations under Article 12 even before any reduction in numbers of the species has been confirmed or the risk of this
3
See for example, Corkeron, P.J. 2006. Opposing views of the “ecosystem approach” to fisheries management.
Conservation Biology 20: 617-619; Corkeron, P.J. 2008. Iceland, Whaling and Ecosystem-based Fisheries Management,
Report for the Whale and Dolphin Conservation Society (WDCS), UK, 32 pp, and Corkeron,P.J.2009 Marine mammals’
influence on ecosystem processes affecting fisheries in the Barents Sea is trivial. Biol Lett5:204–206.
4
http://www.lcie.org/Docs/Legislation/Art_12_guidance_final_E.pdf
protected species disappearing has become a reality. Even if a species has a favourable conservation status and is likely
to have this in the foreseeable future, Member States should take preventive measures to protect the species by
effectively prohibiting the activities indicated in Article 12.” [Emphasis added in bold.]
Consequently, for some species, ‘requisite measures to establish a system of strict protection’ … and the requirements
‘to implement concrete and specific protection measures’ requires preventative measures’ on both the domestic and
international level. It is thus argued that active opposition to commercial whaling qualifies as the “adoption of coherent
and coordinated measures of a preventive nature” at a “high level of protection” that “anticipate[s] the threats and risks
the species may face”. The IWC’s moratorium (zero quotas) on commercial whaling meets the requirements that a fully
“comparable international regulatory framework is in place” for the objectives of the Habitats Directive to be achieved –
that is “strict protection” for cetaceans. Active opposition to any existing or proposed commercial whaling on any
population of a species that has a natural range that is trans-boundary to EU territory, even if “a species has a
favourable conservation status and is likely to have this in the foreseeable future”, is an obligation that Member States
owe to fulfill EU law and policy.
Similarly, we urge EU member states and the Commission to explicitly refute Iceland’s claim that its whaling “will not be
detrimental to the maintenance of the whale populations at a favourable conservation status”. Although Iceland will
likely refer to advice from the North Atlantic Marine Mammal Commission (NAMMCO) in an effort to justify its whaling,
EU member states and the Commission should note that the IWC is the legally competent international authority for the
management of whales and its Scientific Committee is undertaking an ongoing evaluation of the status of the whales
concerned. The IWC Scientific Committee using its Revised Management Procedure (RMP) has calculated the annual
sustainable catch limit for the population of fin whales hunted by Iceland as 46. Iceland is therefore setting quotas for fin
whales which are more than three times higher than the best available scientific advice would allow if the IWC adopted
a management regime and permitted the resumption of commercial whaling.
Iceland’s negotiating position on international trade in whale products
On page 19, Iceland requests adaptation measures to the CITES Regulations (EC) No. 338/97 and 865/2006 that take into
account and incorporate its reservations under the CITES Convention. This would allow Iceland to maintain its
reservations and continue trading in products of the relevant whale species with other States that have corresponding
reservations (Japan, Norway and Palau) or non-Parties to CITES.
We agree with the Commission’s conclusion that ‘Incorporating Iceland's reservations under the CITES Convention into
EU law would go against the EU policy and objectives for protecting species which are or may become threatened by
extinction through international trade. This would also create a major loophole in the EU wildlife trade framework as it
would allow the import into Iceland of CITES-listed specimens without consideration of the provisions of Regulations (EC)
No. 338/97 and 865/2006; once on the Icelandic territory, those specimens could be freely moved into the rest of the
European Union, thereby by-passing the rules on the introduction into the EU for such specimens laid down in
Regulations (EC) No. 338/97 and 865/2006.
We support the Commission’s invitation to Iceland to reconsider this request. However, we would urge the EU to adopt
a stronger negotiating position that Iceland must withdraw its CITES reservations in order to join the EU to ensure full
legislative alignment with the rest of the EU.
Other issues
1. The Commission proposes a transitional derogation with respect to designation of Natura 2000 sites (page 17). ‘The
list of sites of Community importance shall then be decided within three years of accession in accordance with
Article 4 (3) of the Habitats Directive.’ We believe that a maximum three-year transitional period is adequate for
Iceland to collect data and submit proposals for sites of Community importance.
2. Iceland requests to exclude harbour porpoises and bottlenose dolphins from the obligation under Annex II to
designate Special Areas for Conservation (SAC) for these two species. (Page 17). We request that Member States
oppose this substantive amendment, which is effectively a permanent derogation from Directive 92/43/EEC. While
“the EU invites Iceland to provide extensive scientific information on population status and geographical distribution
of harbour porpoises and bottle nosed dolphins and justification for these requests”, this should not be interpreted
by Iceland as an indication of its future ability to obtain such derogation. Iceland must evaluate the species and
population levels for these two species and submit SACs if they are found to be qualifying features.
In conclusion, we believe that Iceland must accept the full acquis, and urge the EU Commission to advise that the EU
should reject Iceland’s requests for any temporary or permanent special arrangements, including amendments or
derogations, to the body of EU laws that protect cetaceans and other marine mammals.
Yours sincerely,
Sandra Altherr
ProWildlife
On behalf of:
Animal Welfare Institute
Environmental Investigation Agency (EIA)
Eurogroup for Animals
Gesellschaft zum Schutz der Meeressäugetiere (Society for the Conservation of Marine Mammals (GSM))
Humane Society International
M.E.E.R. e.V.
Robin de Bois
Whale and Dolphin Conservation (WDC)
WSPA
WWF