Introduction

This essay will discuss European Union Common Fishery Policy (“CFP”). In particular,
concerning the arrangement of maintaining fish stock on the European Union (“EU”) sea
territory. Firstly, by describing Garret Hardin`s tragedy of the commons notion,
particularly on resource management concerning fishery activities and the necessity to
regulate common ownership of fish. Secondly, providing facts in how EU maintaining
fish stocks under CFP and its derivative regulations by examining total allowable catch
(“TACs”) system. Then, considering the weaknesses of TACs implementation, i.e. (i)
contradict and ununiformed rules, (ii) lack of control in implementation and (iii) lack of
transparency in determining TACs. Lastly, summing up by providing recommendation to
resolve the CFP`s issues as mentioned.

Tragedy of Commons on Fishery Activities

Garret Hardin had pointed out his theory concerning “the tragedy of the commons” of
resource management1. In essence, Hardin`s stated that common ownership of resources
would gradually run out the stock due to overexploitation 2 or over-fishing. In general,
overexploitation in the fishery is a fishing activity that exceeds the number of fish
capacity that notably determined, fishing capacity defined as “the amount of fish that can
be produced over a periodic time”3. Despite the disadvantage of common ownership as
mentioned by Garret Hardin, many experts said that Hardin`s tragedy of the commons is
merely an oversimplification4 because the fishery system is complex materials of
ecological, social and economic sector mixtures 5 and cannot be assessed in such a simple
manner.

Currently, Hardin`s theory is still valuable to consider in particular in the fishery sector
because fishery often deals with migratory species 6, these species are known as a certain
animal that performing periodic movements between two separate geographic areas,
usually from their breed places into other territories 7 (another nation territory) which
means it is necessary to regulate about the ownership of the fish to avoid overexploitation
due to common ownership, there are 4 (four) broad types of ownership which are (i)
private property, (ii) state property, (iii) common property and (iv) non property 8. In this
case, common property generally means the allocation of property rights in natural
resources which the number of owners is equivalent towards their rights to exploit the
resource9.

1
Garret Hardin and John Baden, Managing the Commons (1st ed, WH Freeman 1977).
2
Garret Hardin, ‘The Tragedy of The Commons’ (1968) 162 Science 1243.
3
Report of the Technical Consultation on the Measurement of Fishing Capacity. FAO Fisheries Report No. 615.
Rome.
4
David Feeny, Fikret Berkes, Bonnie J. McCay and James M.Acheson, ‘The Tragedy of the Commons: Twenty-
two Years Later’ (1990) 18 Human Ecology 1-19.
5
De Young ‘Canadian Marine Fisheries in a Changing and Uncertain World’ (1999) 129 Can Spec Publ Fish
Aquat Sci 199.
6
Rouba Al-Fattal, ‘The Tragedy of the Commons: Institutions and Fisheries Management at the Local and EU
Levels’ (2009) 21 Review of Political Economy 537 - 547
7
Klemm Cyril De, ‘Migratory Species in International Law’ (1989) 29 Nat Resources J 935.
8
Daniel W. Bromley, ‘The Commons, Common Property and Environmental Policy’ (1992) 2 Environmental and
Resources Economics 1-17.
9
SV Ciriacy-Wantrup and Richard C Bishop, ‘Common Property as a Concept in Natural Resources Policy’ (1975)
15 Nat Resources J 713.
 To conclude, an unregulated common property of migratory species often leads to
overexploitation that will decline the fishing yield which potentially influences global
economy issue10 and extinction of the fish as well because the fish stock will decrease
lower than its ability to reproduce 11. The point is, governments should regulate a method
to maintain fish stock to avoid misuse of common ownership.

How the European Union Common Fishery Policy Maintaining Fish Stocks
Due to common ownership that leads to overexploitation problem as stated by Hardin`s
tragedy of the commons, EU had established CFP to tackle that issue, CFP itself is a set
of regulations which regulates management and conservation of fish stock in EU waters
as well as vessels of EU member state under third states` jurisdiction or the high seas 12,
the main objectives of CFP are to ensure the utilization of aquatic and living resources by
providing sustainable economic, environmental and social conditions 13, and being
sustainable means maintaining a balance amongst social and economic cultivation with
environmental sustainability14 which explicitly reflected under Article 2 (1) Regulation
(EU) No 1380/2013 on Common Fishery Policy 15 (“Regulation 1380/2013”) and those
elements should be jointly implemented without any shortcomings 16. Furthermore, the
legal foundation of Common Fishery Policy is under Article 11 and Article 38-43 17 FEU
Treaty18 which states obliged to integrate environmental protection under all definitions
and implementation of EU policies as well as activities. In essence, sustainable provisions
played a major role in maintaining fish stocks; one of the instances regarding fish stock
issue well described on the collapse of cod fish stocks on Newfoundland and Labrador
early 1990s.19

In implementing Regulation 1380/2013, EU had stipulated recent regulation namely

Council Regulation (EU) 2020/12320 (“CR 2020/123”) which regulates about TACs and
will be revised annually, the stipulation of CR 2020/123 is based on Regulation
1380/2013 as a backbone of EU Fishery Policy. However, it predecessor which is Council

10
Ilaria Perissi, Ugo Bardi, Toufic El Asmar and Alessandro Lavacchi, ‘Dynamic Patterns of Overexploitation in
Fisheries’ (2017) 359 Ecological Modelling 285-292.
11
HK Lotze and Worm B, ‘Historical Baselines for Large Marine Animals’ (2009) 24 Trends Ecol Evol 254-262.
12
Richard Barnes, James Harrison, Eva van der Marel and Mihail Vatsov, ‘Introduction: External Aspects of the
European Union Common Fisheries Policy’ (2020) 35 The International Journal of Marine and Coastal Law 5-17.
13
Robin Churcill and Daniel Owen, The EC Common Fishery Policy (Oxford University Press, 2010).
14
C Dadge, ‘A Critical Evaluation of the Common Fisheries Policy and Reform Proposals: To What Extent Does
the System of Total Allowable Catches Fail to Meet the Lisbon Goal of Working Towards Sustainable
Development?’ (2012) 24 ELM 60.
15
Regulation (EU) No 1380/2013 of the European Parliament and The Council of 11 December 2013 on the
Common Fisheries Policy, amending Council Regulations (EC) No. 1954/2003 and (EC) No. 1224/2009 and
repealing Council Regulations (EC) N0. 2371/2001 and (EC) No. 639/2004 and Council Decision 2004/585/EC
[2013] OJ L354/22.
16
European Commission ‘The CFP a user`s guide’. <https://ec.europa.eu/fisheries/publications/common-
fisheries-policy-%E2%80%93-users-guide_en> accessed 7 May 2020.
17
https://www.europarl.europa.eu/factsheets/en/sheet/114/the-common-fisheries-policy-origins-and-
development accessed 8 May 2020.
18
Consolidated Version of The Treaty on the Functioning of the European Union [2012] OJ C326/47, art 11.
19
Jeffrey A Hutchings and Ransom A Myers, ‘What Can Be Learned from the Collapse of a Renewable
Resource? Atlantic cod, Gadus morhua, of Newfoundland and Labrador’ (1994) 51 Canadian Journal of
Fisheries and Aquatic Sciences 2126-2146.
20
Council Regulation (EU) 2020/123 of 27 January 2020 on Fixing for 2020 the Fishing Opportunities for Certain
Fish Stocks and Groups of Fish Stocks, Applicable in Union waters and, for Union Fishing Vessels, in Certain
Non-Union Waters [2020] OJ L25/1.
 Regulation (EC) No. 2371/200221 also regulates about TAC, and it does not have a
significant change in provisions until the last amendment in 2013 22, TACs broadly means
by a system to determine each member country catch limit for a period of time 23. On the
other hand, EU defined TACs as quantitative limits on landings which generally
expressed in tonnes that set at the level of stocks or groups 24 and the determination of
TACs has to be agreed by the Council of the EU25.

Lastly, determining and maintaining TACs for each state is not a simple job because EU
should consider demographic, history and population data 26 for preserving equality
between countries and the hardest part of this provision is controlling member country to
comply with TACs because Article 6 CR 2020/123 stated that the implementation of
TACs will be determined by member state itself. For instance, United Kingdom explicitly
implemented TACs under Section F of The Blue Book (Fishing Regulations) 27 and will be
annually revised by relying on TACs revision.

Weaknesses in Implementing Total Allowable Catch Under Common Fishery Policy

The effectiveness of TACs cannot simply determine by its material in the regulations.
Nevertheless, regulations also need to be enforceable and efficient in the implementation.
Theoretically, there are 3 (three) paradigms in order to outline the optimal utilization of
fish resources which are (i) conservation paradigm, (ii) social/community paradigm and
(iii) rationalization paradigm28. Furthermore, conservation paradigm based on managing
biological of fish which provide long run of maximum sustainable yield of fish that could
be exploited from the sea29 and TACs included under conservation paradigm.

Firstly, one of the issues towards CFP in maintaining fish stock is there are some
regulations that contradict one to another 30. For example, the mesh size under CFP is
quite small to catch a fish below legal size 31 this occurs because there is plenty of
regulation which is complicated in implementation as well as TACs which there are no
unified regulation concerning its implementation E.g. member state has to regulate it by
themselves; therefore, it is necessary to make regulation easy to enforce by reducing its
numbers or unified it in order to establish uniformity of law.

21
Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the Conservation and Sustainable
Exploitation of Fisheries Resources Under the Common Fishery Policy [2002] OJ L358/59.
22
Peter Orebech, ‘Getting It Right: The Birth of a New EU Common Fishery Policy? – Legislative and Legal
Perspectives on the Annulling of the “Five Structural Failings”’ (2015) 6 Arctic Review on Law and Politics 111-
131.
23
Thane A Militz, Jeff Kinch, David S Schoeman and Paul C Southgate, ‘Use of Total Allowable Catch to Regulate
a Selective Marine Aquarium Fishery’ (2018) 90 Marine Policy 160-167.
24
Robin (n 12).
25
Lisa Borges, ‘Setting of Total Allowable Catches in the 2013 EU Common Fishery Policy Reform: Possible
Impacts’ (2018) 91 Marine Policy 97-103.
26
Rod Fujita, Daniel J Thornhill, Kendra Karr, Cara H Cooper, Laura E Dee, ‘Assessing and Managing Data-
Limited Ornamental Fisheries in Coral Reefs’ (2014) 15 Fish Fish 661-675.
27
https://www.gov.uk/government/publications/fishing-regulations-the-blue-book/section-f-total-allowable-
catch-tac-and-quota-regulations accessed 7 May 2020.
28
Anthony T Charles, ‘Fishery Conflicts: A Unified Framework’ (1992) 16 Marine Policy 376-393.
29
Carsten Lynge Jensen, ‘A Critical Review of the Common Fishery Policy’ (1999) 6 Working Papers.
<https://ideas.repec.org/p/sdk/wpaper/6.html> accessed 8 May 2020.
30
Setareh Khalilian, Rainer Froese, Alexander Proelss and Till Requate, ‘Designed for Failure: A Critique of the
Common Fisheries Policy of the European Union’ (2010) 34 Marine Policy 1178-1182.
31
Rainer Froese, Amanda Stern-Pirlot , Henning Winker, Didier Gascuel, ‘Size Matters: How Single Species
Management Can Contribute to Ecosystem-based Fisheries Management’ (2008) 92 Fisheries Research 231-41.
 Second, ununiformed law often leads to lack of control issue on each member state.
Currently, EU control system upon CFP regulated under Council Regulation (EC) No
1224/200932 (“CR 1224/2009”) which has been consolidated a few times with the latest
on 14 August 201933. In essence, EU control system mandate member state to solely
inspect vessels from member state within their jurisdiction and control the landed
quantities in order not to exceed TACs 34, the Commission also stated in 2009 that
“fisheries control has generally been weak, penalties are not dissuasive and inspections
not frequent enough to encourage compliance”35. For instance, under Article 33 2 (a) CR
1224/2009 states that before 15 th of each month each member state has to notify the
Commission by computer transmission the data of each stock or group of stock that
subject to TACs and there are no concrete penalties if member state fabricates or modifies
the report on CR 1224/2009 or even on CR 2020/123.

Lastly, there is a lack of transparency in decision-making for setting TACs 36. In

determining TACs, the scientist also provide their recommendation to the Commission.
However, policymaker always set TACs higher than the recommendation because they
are using top-down micromanagement system 37 instead of the bottom-up system, the top-
down system tends to reflect top management intention 38 (in this case, the Commission
who have rights to determine TACs). However, bottom-up system is the opposite of top-
down system. For instance, the most recent issue was published by PEW Charitable
Trusts (“PEW”) that provides an analysis of this lack of transparency, PEW stated that
from 2014 until 2019 the decisionmaker always set TACs higher than scientific advice, in
2019 decision-maker exceeded 42% (forty-two per cent) of scientific advice 39.

I. Conclusion
To sum up, it is possible for countries to regulate fishery in one uniformed and unified
regulation under a sole supranational organization such as EU. Furthermore, the most
effective and rational method for member state to arrange common ownership due to the
tragedy of the commons of resources is to maintain fish stock without repealing member
state rights to exploit the fish but tend to limit the amount of fish that member state can
exploit is by applying TACs system. However, implementing TACs is not merely a
simple work because there are lots of obstacles such as (i) contradict and ununiformed
rules, (ii) lack of control and (iii) lack of transparency.

32
Council Regulation (EC) No. 1224/2009 of 20 November 2009 establishing a Union Control System for
Ensuring Compliance with the Rules of the Common Fishery Policy, amending Regulations (EC) No  847/96, (EC)
No  2371/2002, (EC) No  811/2004, (EC) No  768/2005, (EC) No  2115/2005, (EC) No  2166/2005, (EC) No 
388/2006, (EC) No  509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008
and repealing Regulations (EEC) No  2847/93, (EC) No  1627/94 and  (EC) No  1966/2006 [2009] OJ L343/1.
33
https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32009R1224 accessed 9 May 2020.
34
Carsten (n28).
35
Commission of the European Communities (EC), ‘Green Paper: Reform of the Common Fisheries Policy’
(2009) Brussels: The European Commission 163.
< https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0163:FIN:EN:PDF> accessed 8 May 2020
36
Peter (n 21).
37
Ibid.
38
Yoon Hee Kim, Fabian J Sting and Christoph H Loch, ‘Top-Down, Bottom-Up or Both? Toward an Integrative
Perspective on Operations Strategy Formation’ (2014) 32 Journal of Operations Management 462-474.
39
The PEW Charitable Trusts, ‘EU Fisheries Management Improves but Still Lags Behind Scientific Advice’ (23
September 2019).
<https://www.pewtrusts.org/en/research-and-analysis/articles/2019/09/23/eu-fisheries-management-
improves-but-still-lags-behind-scientific-advice> accessed 8 May 2020.
Furthermore, to tackle contradict rules EU has to simplify and decreasing the number of
rules under CFP because simpler rules mean more enforceable for member state to
incorporate it into their national rules and minimizing colliding regulations as well. Other
than that, uniformity law is crucial to implement it efficiently. For example, EU can
establish technical procedure that applies to all member state. Secondly, lack of control
can be handled by maximizing EU role when member state implements CFP into their
national regulations which means do not let member state incorporate CFP to national
regulations independently without supervision from EU and following up by stipulate
concrete penalty if member state does not comply with TACs. Lastly, in order to
overcome lack of transparency issue, EU should adopt bottom-top system on decision-
making instead of top-bottom system because it will make scientist advice will be more
considered by the decisionmaker of TACs.

Bibliography
International Legislation
- Consolidated Version of The Treaty on the Functioning of the European Union [2012] OJ
C326/47, art 11

- Council Regulation (EC) No. 1224/2009 of 20 November 2009 establishing a Union Control
System for Ensuring Compliance with the Rules of the Common Fishery Policy, amending
Regulations (EC) No  847/96, (EC) No  2371/2002, (EC) No  811/2004, (EC) No  768/2005,
(EC) No  2115/2005, (EC) No  2166/2005, (EC) No  388/2006, (EC) No  509/2007, (EC)
No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing
Regulations (EEC) No  2847/93, (EC) No  1627/94 and  (EC) No  1966/2006 [2009] OJ
L343/1

- Council Regulation (EC) No. 2371/2002 of 20 December 2002 on the Conservation and
Sustainable Exploitation of Fisheries Resources Under the Common Fishery Policy [2002] OJ
L358/59

- Council Regulation (EU) 2020/123 of 27 January 2020 on Fixing for 2020 the Fishing
Opportunities for Certain Fish Stocks and Groups of Fish Stocks, Applicable in Union waters
and, for Union Fishing Vessels, in Certain Non-Union Waters [2020] OJ L25/1

- Regulation (EU) No 1380/2013 of the European Parliament and The Council of 11 December
2013 on the Common Fisheries Policy, amending Council Regulations (EC) No. 1954/2003
and (EC) No. 1224/2009 and repealing Council Regulations (EC) N0. 2371/2001 and (EC)
No. 639/2004 and Council Decision 2004/585/EC [2013] OJ L354/22

Books
- Churcil R and Owen D, The EC Common Fishery Policy (Oxford University Press 2010)

- Hardin G and Baden J, Managing the Commons (1st ed, WH Freeman 1977)

Journal Articles
- Al-Fattal R, ‘The Tragedy of the Commons: Institutions and Fisheries Management at the
Local and EU Levels’ (2009) 21 Review of Political Economy 537-547

- Barnes R, Harrison J, Marel EVD and Vatsov M, ‘Introduction: External Aspects of the
European Union Common Fisheries Policy’ (2020) 35 The International Journal of Marine
and Costal Law 5-17

- Borges L, ‘Setting of Total Allowable Catches in the 2013 EU Common Fishery Policy
Reform: Possible Impacts’ (2018) 91 Marine Policy 97-103

- Bromley D W, ‘The Commons, Common Property and Environmental Policy’ (1992) 2

Environmental and Resources Economics 1-17

- Charles AT, ‘Fishery Conflicts: A Unified Framewok’ (1992) 16 Marine Policy 376-393

- Ciriacy-Wantrup SV and Bishop R C, ‘Common Property as a Concept in Natural Resources

Policy’ (1975) 15 Nat Resources J 713
 - Dadge C, ‘A Critical Evaluation of the Common Fisheries Policy and Reform Proposals: To
What Extent Does the System of Total Allowable Catches Fail to Meet the Lisbon Goal of
Working Towards Sustainable Development?’ (2012) 24 ELM 60

- De Cyril K, ‘Migratory Species in International Law’ (1989) 29 Nat Resources J 935

- Feeny D, Berkes F, McCay B J and Acheson J M, ‘The Tragedy of the Commons: Twenty-
two Years Later’ (1990) 18 Human Ecology 1-19

- Froese R, Stern-Pirlot A, Winker H, Gascuel D, ‘Size Matters: How Single Species

Management Can Contribute to Ecosystem-based Fisheries Management’ (2008) 92 Fisheries
Research 231-41

- Fujita R, Thornhill DJ, Karr K, Cooper CH, Dee LE, ‘Assessing and Managing Data-Limited
Ornamental Fisheries in Coral Reefs’ (2014) 15 Fish and Fisheries 661-675

- Hardin G, ‘The Tragedy of the Commons’ (1968) 162 (3859) SCIENCE 1243-1248

- Hutchings JA and Myers RA, ‘What Can Be Learned from the Collapse of a Renewable
Resource? Atlantic cod, Gadus Morhua, of Newfoundland and Labrador’ (1994) 51 Canadian
Journal of Fisheries and Aquatic Sciences 2126-2146

- Khalilian S, Froese R, Proelss A and Requate T, ‘Designed for Failure: A Critique of the
Common Fisheries Policy of the European Union’ (2019) 34 Marine Policy 1178-1182

- Kim YH, Sting FJ and Loch CH, ‘Top-Down, Bottom-Up or Both? Toward an Integrative
Perspective on Operations Strategy Formation’ (2014) 32 Journal of Operations Management
462-474

- Lotze HK and Worm B, ‘Historical Baselines for Large Marine Animals’ (2009) 24 Trends
Ecol Evol 254-262

- Militz TA, Kinch J, Schoeman DS and Southgate PC, ‘Use of Total Allowable Catch to
Regulate a Selective Marine Aquarium Fishery’ (2018) 90 Marine Policy 160-167

- Orebech P, ‘Getting It Right: The Birth of a New EU Common Fishery Policy? – legislative
and legal perspectives on the Annulling of the “Five Structural Failings”’ (2015) 6 Arctic
Review on Law and Politics 111-131

- Perissi I, Bardi U, El Asmas T and Lavacchi A, ‘Dynamic Patterns of Overexploitation in

Fisheries’ (2017) 359 Ecological Modelling 285-292

- Young D, ‘Marine Fisheries in a Changing and Uncertain World’ (1999) 129 Can Spec Publ
Fish Aquat Sci 199

Online Journal Article

- Jensen CL, ‘A Critical Review of the Common Fishery Policy’ (1999) 6 Working Papers
<https://ideas.repec.org/p/sdk/wpaper/6.html> accessed 8 May 2020

- The PEW Charitable Trusts, ‘EU Fisheries Management Improves but Still Lags Behind
Scientific Advice’ (23 September 2019). <https://www.pewtrusts.org/en/research-and-
analysis/articles/2019/09/23/eu- fisheries-management-improves-but-still-lags-behind-
scientific-advice> accessed 8 May 2020
Others
- Commission of the European Communities (EC), ‘Green Paper: Reform of the Common
Fisheries Policy’ (2009) Brussels: The European Commission 163. < https://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2009:0163:FIN:EN:PDF> accessed 8
May 2020

- European Commission ‘The CFP a user`s guide’. <https://ec.europa.eu/fisheries/

publications/common-fisheries-policy-%E2%80%93-users-guide_en> accessed 7 May 2020

- https://eur-lex.europa.eu/legal-content/EN/ALL/?uri=CELEX:32009R1224 accessed 9 May

2020

- https://www.europarl.europa.eu/factsheets/en/sheet/114/the-common-fisheries-policy origins-
and-development accessed 8 May 2020

- https://www.gov.uk/government/publications/fishing-regulations-the-blue-book/section-f-
total-allowable-catch-tac-and-quota-regulations accessed 7 May 2020

- Report of the Technical Consultation on the Measurement of Fishing Capacity, FAO Fisheries
Report No. 615. Rome