The appeal: The NGO Sea Shepherd asked the urgent applications judge of the Conseil d’État to suspend fishing that poses a risk of dolphin bycatch in the Bay of Biscay from January to March and from mid-July to mid-August, and to reinforce control mechanisms in order to reduce such catches.
The decision of the Conseil d’État: The NGO's requests exceed the powers of the urgent applications judge, who judges urgent matters and provides solutions that are in principle immediate and provisional.
According to data from the CNRS, the judge noted that there had been a significant increase in the number of dolphins washing up on beaches in the Bay of Biscay since 2016, and that in most cases these deaths were caused by fishing vessels.
By injunction of the Conseil d’État following a ruling on the merits of a case in July 2020, the French Minister of the Sea - in November of that year - extended the obligation for all French vessels over 12 metres to use sound repellents, which are supposed to make it possible to achieve a 21% decrease in cetacean bycatch. An action plan followed this initial measure, including: mandatory reporting of bycatches, aerial observation programmes to estimate the dolphin population size and the area concerned, as well as an international project with Spain and Portugal.
This year, the number of dolphins that washed up was 657, after an average of 850 over the last four years.
Although the NGO considers that the measures recently put in place are still insufficient, the urgent applications judge today rejected its requests.
A four-month closure of the fishing zone would only be effective if it were implemented year after year, over a long period of time. This amounts to asking the urgent applications judge to order the French State to implement a regulatory measure that is not provisional, which is beyond the judges powers as an urgent applications judge. The NGO's request that the court order the presence of observers and remote monitoring devices on French fishing vessels is also a non-provisional measure, which the urgent applications judge cannot grant.