Explanatory Memorandum to COM(2023)438 - EU position in the Indian Ocean Tuna Commission - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)438 - EU position in the Indian Ocean Tuna Commission. |
|---|---|
| source | COM(2023)438  |
| date | 11-07-2023 |
This proposal concerns a Decision establishing the position to be taken on the behalf of the European Union at meetings of the Indian Ocean Tuna Commission (IOTC) for the period 2024-2028 in connection with the envisaged adoption of conservation and management measures.
2.1.Agreement for the establishment of the Indian Ocean Tuna Commission
The Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC Agreement) aims, by establishing the IOTC, to promote cooperation with a view to ensuring the conservation and optimum utilisation of stocks and encouraging the sustainable development of fisheries based on such stocks. The Agreement entered into force on 23 March 1996.
The EU is a party to the IOTC Agreement, having approved it pursuant to Council Decision 95/399/EC 1 .
2.2.Indian Ocean Tuna Commission
The IOTC is the body established by the Agreement to be responsible for the management and conservation of the fishery resources in the area covered by the Agreement. It adopts conservation and management measures to ensure the conservation of the stocks covered by the Agreement and to promote their optimum utilisation.
As a member of the IOTC, the EU is entitled to participate in, and vote on, its decision. The IOTC takes decisions by consensus, with the possibility of a three-quarters majority vote.
2.3.IOTC decisions
The IOTC has the authority to adopt conservation and enforcement measures for the fisheries under its purview and these are binding on the contracting parties.
In accordance with Article IX.4 of the Agreement, the measures enter into force 120 days after the date on which the contracting parties are notified of them by the IOTC. Contracting parties that object to a measure within 120 days of being notified are not bound by it. If more than a third of the contracting parties submit an objection, the other contracting parties are not obliged to implement the contested measure.
3.Position to be taken on the EU’s behalf
The position to be adopted on behalf of the EU at the annual meetings of regional fisheries management organisations (RFMOs) is currently established according to a two‑tier approach. A Council Decision sets out the guiding principles of the EU’s position on a multiannual basis and it is subsequently adjusted for each annual meeting by Commission services non-papers to be endorsed by the Council.
For the IOTC, this approach is implemented by Council Decision (EU) 2019/860 2 of 14 May 2019, which sets out the EU’s position in the IOTC for the period 2014‑2018. The Decision contains general principles, but also takes into account as far as possible the specific features of the IOTC. In addition, it sets out the standard process for establishing the EU’s position year by year, as requested by Member States.
Council Decision (EU) 2019/860 incorporated the principles of the new common fisheries policy, as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council 3 , also taking into account the objectives set out in the Commission’s Communication on the external dimension of the common fisheries policy 4 . Moreover, it adjusted the EU’s position to the Treaty of Lisbon.
Council Decision (EU) 2019/860 provides for an assessment, and where appropriate, a revision of the EU’s position before the 2024 annual meeting. Therefore, this proposal sets out the EU’s position in the IOTC for the period 2024-2028, thereby replacing Council Decision (EU) 2019/860.
The current revision takes into consideration, in relation to fishing, the European Green Deal, notably Biodiversity 5 , Climate Adaptation 6 and Farm to Fork Strategies 7 . It also takes into account the Plastics Strategy 8 and the Zero pollution Action Plan 9 . Furthermore, it also takes into consideration, the International Ocean Governance Joint Communication 10 .
4.Legal basis
4.1.Procedural legal basis
4.1.1.Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the EU’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement’.
‘Acts having legal effects’ include acts that have legal effects by virtue of the rules of international law governing the body in question, and instruments that do not have a binding effect under international law, but are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 11 .
4.1.2.Application to the present case
The IOTC is a body set up by an agreement, namely the IOTC Agreement.
The acts that the IOTC is called on to adopt constitute acts having legal effects. They are to be binding under international law in accordance with Article IX of the IOTC Agreement and are capable of decisively influencing the content of EU legislation, including:
·Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing 12 ;
·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy 13 ;
·Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets 14 , and
·Regulation (EU) 2022/2343 of the European Parliament and of the Council of 23 November 2022 laying down management, conservation and control measures applicable in the Indian Ocean Tuna Commission (IOTC) Area of Competence, amending Council Regulations (EC) No 1936/2001, (EC) No 1984/2003 and (EC) No 520/2007 15 .
The envisaged acts do not supplement or amend the institutional framework of the IOTC Agreement.
Therefore, the procedural legal basis for the proposed Decision is Article 218(9) TFEU.
4.2.Substantive legal basis
4.2.1.Principles
The substantive legal basis for a Decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the EU’s behalf. If that act pursues two aims or has two components, and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the Decision must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.
4.2.2.Application to the present case
The main objective and content of the envisaged act relate to fisheries. The legal basis setting out the principles to be reflected in this position is Regulation (EU) No 1380/2013.
Therefore, the substantive legal basis of the proposed Decision is Article 43 i TFEU. The Decision will replace Council Decision (EU) 2019/860, which covers the period 2019‑2023.
4.3.Conclusion
The legal basis of the proposed Decision should be Article 43 i TFEU, in conjunction with Article 218(9) TFEU.