The TCA adjustment period: Which Fish 4 is the fight about?

It is interesting to read the Reports to the States of Jersey on the Brexit Negotiations in relation to the current fishing dispute particularly those toward the end of the negotiating process which outlined the shifts in the European position under the guiding hand of Michel Barnier who was consistently accusing the British of changing their position. This is not a legal opinion in any way, but rather a set of sceptical personal observations as a French national living in Jersey.

What was predicted in those reports is in fact coming to pass. The tactics currently adopted in France and also in Europe were perhaps unwittingly predicted in the Report.

I wish to make it clear that I support the hard working fishermen on both sides of the water who can be trusted to deal with the matters themselves. It is rather that the issues have been escalated to the State level involving political prejudices and "parties prises" by politicians and ill-informed sensationalist journalists alike which is the main concern here.

Many people could be pardoned for making the error of believing that Michel Barnier was and remains a pure Eurocrat, and see no further than that. There is no doubt that the position as to the inclusion of the Crown Dependencies into the definition of the UNited Kingdom (only for for the purposes of the Withdrawal Agreement and the subsequent TCA) was a constitutional fallacy, as appears from the prior and correct position taken in the EU Treaties since 1972. Barnier's main faute was to have bundled the Jersey Waters into the lobster pot of the negotiations with the United Kingdom over the separate waters fished in the Manche/English Channel between the United Kingdom and France and for the United Kingdom to have accepted that for its own advancement or rather reduction in the number of steps backwards it took.

That has been compounded by the UK's position as to claiming that it has the right as opposed to a responsibility to "negotiate" the Island's position on the somewhat quaint basis of its notion of a "British" family. It is from that stance that the local issue has gone awry as the problem which could have been defined from the issues has been warped and the "solutions" adopted therefore are locally insoluble.

As all politicians looking to their future advancement do, M. Barnier was preparing his re-entry into French politics, for example as a possible French presidential candidate during the negotiations. That is no longer likely owing to the triangular match between Le Pen and Mélenchon on the extremes and M. Macron in the middle. He was preparing the ground for the current politicians such as Annick Girardin who is currently and deliberately attempting to drive her country into a collective hysteria by stirring up the usual consensus against paradis fiscaux. and appealing to the European Parliament for help on that basis. The presence of the Calvados MEP Stéphanie Yon-Courtin waving the same banner now in Normandy is no coincidence either.

What is purely a sub-regional issue, perfectly capable of being resolved and managed at that level has now become a pan-European political battleground through which French politicians can revert to Paris bearing political trophies and spoils of little substance other than economic loss.

The political drive underlying the Franco-European undertaking has been to appear to seek the same object as the fishermen on both sides of the water, by proposing the reintroduction of a form of sub regional agreement similar but probably by no means identical to the Granville Treaty, but using the concept of unconnected sanctions against Jersey via its Finance Industry by way of example as a form of Neanderthal club.

The issues on the sea-bed bear no resemblance to that "solution".

At present, following the "Exit" of the United Kingdom to the North, there is no French permit system for Jersey vessels to actually fish in neighbouring French waters. They still have landing rights which are being blocked. The issue is over access to the Jersey waters to which French vessels have had access historically but now under "Fish.10", they have to show a history of presence over the past four years. For various reasons known only to the French vessels and their administration, or perhaps even the documentary circuit between the Cotentin, Paris, Brussels and London the evidence of that required under the Fisheries section of the TCA has not been forthcoming in certain instances, with the result that some French vessels are complaining that they are being denied access. It is open to question whether that same argument would work on their own administration were they to be applying for a French subsidy. It is tempting to suggest that the French administration has some responsibility in this, I will not do so here. Jersey has set up a French language helpline to assist them in knowing the status of their applications and assisting them in providing the evidence needed. I will simply refer the Parisians back to Pneumatix (Postaldistrix), Vitalstatistix, in the absence of any Breton ENArequista, Polytechnix and finally Ekonomikrisis.

The French fishermen seeing no solution in view, are currently blockading any Jersey vessel attempting to enter the supposedly "open" Port of Saint Malo, which on the surface only demonstrates that neither the French nor the European politicians involving themselves are simply in control of their own negotiating position.

Shouldn't any attempt to negotiate such an arrangement therefore carry the ability for the Jersey administration to revoke licenses to “European” vessels (i.e. the French vessels exercising historical rights) on the implementation of any such sanctions in unconnected areas? Given the Gallic hypocrisy currently being formulated, I am tempted to say at the slightest hint or threat of such idiotic sanctions being inflicted and at the instant that any Jersey vessel is refused landing rights or access to the Granville Criée or other French fish auction market.

Make no mistake, political profiteering and enhancing reputation is the norm in France, unlike our small Island’s comparatively healthy small democracy.

The Norman and Breton fishermen may have chosen the wrong armada in the long term and become the instruments of forces that really only care about their own political advancement and survival and not their fishermen’s better interests in the long term. The politicians have encouraged the "fishing out" of their own stocks by granting historical subsidies encouraging larger vessels to obtain larger profit and are attempting to compensate by over-fishing in Jersey waters which are regulated under a vessel-size calibrated conservation policy. That conservation policy does not tolerate easily the larger French vessels which have to land more fish and shellfish to be profitable. Add the fact that a significant part of the Breton fishing zone to the south is about to disappear under a wind turbine farm, and it is clear that Jersey is being treated as the fall-guy and being treated as a paradis fiscal to disguise the trick.

La mauvaise foi sinon rien.

The latest foray from #Falballa or is it now #Andrenaline is to attempt to take control of the Jersey waters by insisting that a French team of experts (who undoubtedly will have already certified that the French waters are not overfished) to 'study' the Jersey waters to see how much more fishing they can tolerate, on a French "industrial" level.

Sinking to the same depth, given that the French policy is to ground the Jersey fishing fleet, shouldn't the Island not announce the initiation of plans for a wind turbine farm in the Jersey waters concerned, rather than allow the French fleets to decimate (perhaps the wrong power of 10); our stocks with no counterparty as to landing rights in the French market ?

They are our waters after all and there is no harm in having a renewable source of electricity following the daft French threat initiated by Annick Girardin #Adrenaline implementing what seems to be part of the plan initiated by Michel Barnier and now the EP. She has in fact called on Europe for support: cue in the local MEP as #Falballa (Ex Freshfields, Allen & Overy and French competition administration) and the continued closure of French Ports despite the lifting of the decree closing them to Jersey vessels. It is all too well timed and organised to be coincidental. Perhaps she might be reminded that the counterbalancing economic rules to competition law are state aid and, as the Court of Justice of the European Union has pointed out now on at least three occasions, that has nothing to do with Taxation or the lack of it. Any form of local agreement would best have to integrate French local, prefectoral and regional subsidies which would otherwise enable boats of a larger size and equipment to be used in Jersey waters. If the French want to overfish their own waters so be it, but why ours?

The simplest solution would be to allow the French vessels who feel aggrieved as to the definition of their current rights by reference to the TCA Fish terms as to history to have less limited license rights under the Jersey fishery management, but that would rely upon ecologically restrained fishing in our breeding waters by the French vessels concerned which they may not be willing or economically able to achieve owing to industrial boat-size. However, neither the French administration nor the French vessels can dispense themselves from keeping the records required under the TCA to prove their effort in the area until 2026.

It is one thing to accuse everyone else of not keeping to the agreement - incorrectly - but the French do not appear to be able to keep their side of it either.

Their main problem is that in the future, their fishing effort will need to be measured under the current TCA Fish régime for review in 2026. The collective, not necessarily individual, failure to produce sufficient evidence of fishing history over the last four years is of practical concern to Jersey, but not of legal concern. The right to fish is not denied, it is simply the extent to which that right has been exercised in the prior four years and can be evidenced as having been exercised. The irony would be were Annick Girardin to be confronted with possibility that the French fishing vcssels concerned had not been keeping "evidence" simply to elude verification of their French turnover or corporate or income taxation whilst treating Jersey as a paradis fiscal (tax haven) which it is agreed -at a higher level than hers- no longer to be.

The French and the European politicians who have chosen to involve themselves in this fish-fight might do better to read and consider the Chatham House report on the reasons why the West in general and Europe in particular is unable to apprehend Vladimir Putin's policies, unfortunately the French politicians and the EU policies which they appear to invoke are starting to resemble them.

The fact that Jersey vessels have to pay a substantial license fee and that the French vessels do not for fishing in the same waters appears to have been lost at sea.