The vast majority of these common dolphin strandings in Cornwall and Devon occurred during the period November – April, which coincides with trawling activity, including pair trawling in the Western Approaches.

In Section 4 of the Green Paper, it states that one of the objectives for the future is “…to protect public and animal health and safety…”  

This objective must include the health and safety of cetaceans, as these are the horrific injuries suffered by porpoises, dolphins and whales when they become entangled in fishing nets or gear:

Gill nets, trammel nets, and tangle nets: lacerations on the head, body, fins and tail fluke caused by the net; penetrating wounds, often in the lower jaw and head area, made by gaffs used by fishermen to remove the cetaceans from the net; broken bones; broken teeth; internal haemorrhage and signs
of asphyxiation.

Drift nets: lacerations on the head, body, fins and tail fluke caused by the net; bite marks on all parts of the body caused by scavengers such as sharks; severed flukes, fins, and tails caused by fishermen using gaffs to remove the cetaceans from the nets: internal injuries and signs of asphyxiation.

Trawl nets and gear: deep wounds to the head and body; severed beaks, fins, and tails caused by fishermen using gaffs to remove the cetaceans from the nets; severe internal injuries including crushed organs; puncture wounds made by fishermen so that the body will sink.
At least one post-mortem of a stranded dolphin, found on a beach in Devon, showed that the animal had been punctured whilst it was alive, and that it had bled to death in the sea.

During 1993 and 1994, carcasses of by-caught dolphins and porpoises were taken ashore by the Dutch fishing fleet for scientific studies. The lungs were examined histologically and results were compared with findings from drowning and asphyxia of other mammals and humans
The findings of Knieriem and Hartmann for known by-caught dolphins and porpoises coincided with the description of 'atypical drowning lung' in humans and other terrestrial mammals.

A responsible fisheries policy must ensure effective conservation, management and development of living aquatic resources with due respect for the ecosystem and biodiversity.
All fishing activities have an impact on the ecosystem, but the severity of this impact and the time to reverse its effects are unknown. Removals of individuals from natural populations have dire consequences in relation to biodiversity and the functioning of ecosystems.
In their study, “Historical Overfishing and the Recent Collapse of Coastal Ecosystems”, Jackson et al state that “ severe overfishing drives species to ecological extinction , because over fished populations no longer interact significantly with other species  … many more marine ecosystems may be vulnerable to collapse in the future”. The study clearly illustrates the consequences to the marine ecosystem when top predators, such as whales and dolphins, are removed in large numbers – a collapse of the marine ecosystem.

Article 6 of the Amsterdam Treaty stipulates that environmental protection requirements must be integrated into Community policies, and allows for legislation to be amended to address   environmental concerns. Thus the Common Fisheries Policy could and should be amended to incorporate cetacean bycatch mitigation measures.  

Article 174 of the Treaty requires, inter-alia, that Community policy on the environment shall be based on the precautionary principle.

Principle 15 of the Rio Earth Summit states "In order to protect the Environment, the precautionary approach shall be adopted by States. Where there are threats of serious damage, lack of full scientific certainty shall not be used as reason for postponing measures to prevent environment degradation".

However, although in the last 10 years, there have been in excess of 20 EU funded reports dealing with cetacean bycatch, and all concluding that there is a threat of serious damage to cetacean populations, lack of full scientific certainty HAS been used as a reason for postponing measures to prevent the present level of cetacean bycatch.  
In response to Written Question P-2078/01 by Mr. Pat Gallagher, regarding pair trawling and the deaths of common dolphins, Commissioner Fischler, in his Written Answer P-2078/01EN stated “ The Commission as such has no self-generated evidence on this topic…The Commission is aware that most studies on the state of conservation of small cetaceans point to the risk that bycatch of some species is attaining levels that might put at risk the sustainability of some cetacean species… However, the relative contribution of different fishing methods to this problem as well as its extent is still to be quantified”.   
Given the evidence in numerous scientific reports, the statements by the IWC, ASCOBANS and UNEP, Principle 15 of the Rio Summit and Article 174 of the Treaty, and given that cetaceans are protected under the Bern, Bonn (ASCOBANS, and ACCOBAMS), and Biological Diversity Conventions, the Habitat and Species Directive (92/43/EEC) and are treated as having Appendix I Status CITES, within the European Union, it would appear that the Commission does not appear to consider the precautionary principal to be relevant when considering the issue of cetacean bycatch.

During his recent visit to Lesconil, Commissioner Fischler, underlining the importance of
re-thinking the Common Fisheries Policy stated, “ We can no longer pretend that the problems are not there….  We have a responsibility…”. This statement applies equally to the problem of cetacean bycatch.

The fishing activities of Member States are regulated under the Common Fisheries Policy and enforced by the Commission.  
The sole exception to this is the incidental capture of marine mammals. It is the responsibility of each Member State to monitor cetacean bycatch and to enforce the Habitat and Species Directive (92/43/EEC).

Evidence would suggest that NOT one Member State fully complies with the Directive, and yet the only complaint filed against a Member State for non-compliance has been filed by
environmental groups in Sweden.
The European Commission has the responsibility for the enforcement of Directives, and has taken steps to fine the governments of Member States for non-compliance with other Directives.

It is irrational that the principal of subsidiarity should only apply to cetacean bycatch.
Fishermen from all the Member States have to comply with the same CFP regulations relating to fishing activities, but they are not all subject to the same level of enforcement in relation to cetacean bycatch.   
In Section 3.5 it states that “current arrangements are insufficient and cannot ensure a level playing field…. The organisation and control is fragmented. Better co-ordination and optimal use of monitoring and inspection resources are needed…A satisfactory follow-up of infringements has not been achieved “ This is an accurate assessment of the use of the principal of subsidiarity in relation to the Habitats and Species Directive.
A Cetacean Bycatch Response Strategy must be incorporated into the Common Fisheries Policy.

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