Explanatory Memorandum to COM(2023)437 - EU position in the General Fisheries Commission for the Mediterranean - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)437 - EU position in the General Fisheries Commission for the Mediterranean. |
|---|---|
| source | COM(2023)437  |
| 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 General Fisheries Commission for the Mediterranean for the period 2024-2028 in connection with the envisaged adoption of conservation and management measures.
2.1.Agreement establishing the General Fisheries Commission for the Mediterranean
The Agreement establishing the General Fisheries Commission for the Mediterranean (‘the GFCM Agreement’) aims to ensure the conservation and sustainable use, in the biological, social, economic and environmental terms, of living marine resources, as well as the sustainable development of aquaculture in the area covered by the Agreement. The GFCM Agreement entered into force in 1952. Amendments to the GFCM Agreement were approved in 1963, 1976, 1997 and 2014.
The European Union is a contracting party to the GFCM Agreement, having accepted it under Council Decision 98/416/EC 1 . Bulgaria, Greece, Spain, France, Croatia, Italy, Cyprus, Malta, Romania and Slovenia are also contracting parties to the GFCM Agreement.
2.2.General Fisheries Commission for the Mediterranean
The General Fisheries Commission for the Mediterranean (GFCM) is the body established by the GFCM Agreement to ensure the conservation and sustainable use, in the biological, social, economic and environmental terms, of living marine resources, as well as the sustainable development of aquaculture in the Mediterranean, Black Sea, and connecting waters. It adopts conservation and management measures to manage the fishery resources for which it is responsible.
As a member of the GFCM, the EU is entitled to participate in, and vote on, its decisions. There is a declaration of EU competence for the GFCM Agreement. The EU exercises the voting rights of its Member States that are contracting parties: where the EU votes, no EU Member States vote and vice-versa. The GFCM takes its decisions by two-thirds majority of GFCM members present and voting.
2.3.GFCM decisions
The GFCM has the authority to adopt conservation and management measures for the fisheries for which it is responsible, which are binding on the contracting parties.
In accordance with Article 13.3 of the GFCM Agreement, the measures enter into force 120 days after the date on which the contracting parties are notified of them by the GFCM. Contracting parties that object to measures adopted by the GFCM within 120 days from the date of the notification are not bound by that measure. Where more than one 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 will set 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 in the Council.
For the GFCM, this approach is implemented by Council Decision (EU) 2019/869 of 14 May 2019, which sets out the EU’s position in the GFCM for the period 2019-2023. The Decision contains general principles but also takes into account as far as possible the specific features of the GFCM. 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) 2019/869 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 2 , also taking into account the objectives set out in the Commission Communication on the external dimension of the common fisheries policy 3 . Moreover, it adjusted the EU’s position to the Treaty of Lisbon.
Council Decision (EU) 2019/869 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 GFCM for the period 2024‑2028, thereby replacing Council Decision (EU) 2019/869.
The current proposal takes account, in connection with fishing, the European Green Deal, notably Biodiversity 4 , Climate Adaptation 5 and Farm to Fork Strategies 6 . It also takes into account the Plastics Strategy 7 and the Zero pollution Action Plan 8 . Furthermore, it also takes into consideration, the International Ocean Governance Joint Communication 9 .
The current revision also takes into account the commitments made by the EU at international level on the Mediterranean and the Black Sea in the Malta MedFish4Ever Ministerial Declaration 10 , the Sofia Ministerial Declaration 11 and the GFCM 2030 Strategy for sustainable fisheries and aquaculture in the Mediterranean and the Black Sea 12 .
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’ 13 .
4.1.2.Application to the present case
The GFCM is the body set up by an agreement, namely the GFCM Agreement.
The acts that the GFCM is called upon to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with Article 13 of the GFCM 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 14 ;
Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy 15 ; and
Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets 16 .
The envisaged acts do not supplement or amend the institutional framework of the GFCM 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 under Article 218(9) TFEU 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) 2019/869, 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.