In March 2023, in a case brought by several environmental groups, the Conseil d’État ordered the Government to act within six months to close fishing grounds in the Bay of Biscay at certain times of the year to reduce the number of accidental deaths of dolphins and porpoises. Following this ruling, the French Secretary of State for the Sea prohibited fishing with certain dangerous types of net, for four weeks in 2024, 2025 and 2026. The banning order included a number of exemptions for 2024. The Conseil d’État today found that these exemptions are too broad for the fishing ban to have sufficient impact on bycatch, and to have any chance of reducing small cetacean mortality rates to sustainable levels from 2024 onwards. It also noted that the purse seine net is not on the list of banned, high-risk nets, even though it is responsible for a significant amount of dolphin bycatch. On these grounds, the Conseil d’État revoked part of the order.
On 20 March 2023, in a case brought by various environmental groups, the Conseil d'État ordered the government to act within six months to close fishing grounds in the Bay of Biscay at certain times of the year. The aim of these closures was to reduce the number of deaths of common dolphins, bottlenose dolphins and harbour porpoises due to bycatch during fishing operations, and thus ensure favourable conservation status for these species in the North-East Atlantic, in accordance with obligations under European fisheries law and the 1992 Habitats Directive.
In an order dated 24 October 2023, the Secretary of State for the Sea banned vessels of 8 metres or more equipped with certain nets (pelagic trawls, bottom pair trawls, trammel nets and set gillnets) from fishing in the Bay of Biscay from 22 January to 20 February in 2024, 2025 and 2026. For 2024, vessels equipped with acoustic deterrent devices or on-board cameras were exempt from the ban, with allowances to be made in the event of these devices’ failure and for shipowners who had undertaken to equip their boats with these devices. A number of environmental groups challenged the Secretary of State's order as a matter of urgency before the Conseil d'État.
The Conseil d'État noted that the planned exemptions would affect a large number of vessels, thereby reducing the effectiveness of the fishing ban in 2024. Scientific assessments, meanwhile, indicate that a four-week ban will only achieve a sustainable level of mortality among small cetaceans if it is applied to all high-risk activities. The judge also found that the exemptions, intended as a temporary measure for 2024, could not be justified as an incentive, nor due to implementation constraints.
They also noted that the contested order did not include purse seines (nets used on the surface to encircle schools of fish) among the high-risk equipment prohibited during the ban, despite the fact that these nets were responsible for a significant amount of dolphin bycatch in the Bay of Biscay between 2019 and 2021, according to a report by the International Council for the Exploration of the Sea (ICES). The order also puts an end to the testing of acoustic deterrent devices along with on-board cameras on gillnetters (vessels that use gillnets and other entangling nets) without introducing any alternative, compensatory measures.
Taking into account both the urgency to protect small cetaceans, whose incidental capture cannot continue at an unsustainable level for another winter, and the economic impact of its decision on many fishing companies, the Conseil d'État revoked 1) the exemptions to the 2024 ban on fishing with high-risk nets in the Bay of Biscay between 22 January and 20 February, 2) the exclusion of purse seines from the scope of this ban, and 3) the repeal of gillnetter testing. In its ruling, it pointed out that the main effect of the revocation was to bring forward to 2024 the full application of the four-week ban on fishing with certain nets, for which the Government had planned from the outset to compensate the companies concerned. It upheld, however, the exemptions provided for in the order for vessels under 8 metres and for the use of Danish seine nets.
Decisions Nos. 489926, 489932, 489949 – Association France Nature Environnement et al.