Explanatory Memorandum to COM(2023)417 - EU position in the South Pacific Regional Fisheries Management Organisation - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)417 - EU position in the South Pacific Regional Fisheries Management Organisation. |
|---|---|
| source | COM(2023)417  |
| 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 South Pacific Regional Fisheries Management Organisation (SPRFMO) for the period 2024-2028 in connection with the envisaged adoption of conservation and management measures.
2.1.Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean
The Convention on the Conservation and Management of High Seas Fishery Resources in the South Pacific Ocean (SPRFMO Convention) aims, by establishing the SPRFMO, to ensure the long-term conservation and sustainable use of fishery resources in the area covered by the Convention. The Convention entered into force on 24 August 2012.
The EU is a party to the SPRFMO, having ratified the Convention under Council Decision 2012/130/EU 1 .
2.2.SPRFMO Commission
The SPRFMO Commission is the body established by the SPRFMO Convention to be responsible for managing and conserving fishery resources in the Convention area. It adopts conservation and management measures to ensure the long-term conservation and sustainable use of the fishery resources for which it is responsible.
As a member of the SPRFMO Commission, the EU is entitled to participate in, and vote on, its decisions. The SPRFMO Commission usually takes its decisions by consensus. However, it may take decisions by a three-quarters majority of its members, except where the SPRFMO Convention expressly provides for consensus.
2.3.SPRFMO Commission decisions
The SPRFMO Commission has the authority to adopt conservation and enforcement measures for the fisheries for which it is responsible, which are binding on the contracting parties.
In accordance with Article 17(1) of the SPRFMO Convention, the measures enter into force 90 days after the date on which the contracting parties are notified of them by the SPRFMO. If any member of the SPRFMO Commission presents an objection to a decision within 60 days of being notified, the decision will not become binding on that member to the extent of the objection. If an objection is presented, a review panel is established within 30 days of the end of the objection period to decide on the objection.
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 SPRFMO, this approach is implemented by Council Decision (EU) 2019/859 of 14 May 2019, which sets out the EU’s position in the SPRFMO for the period 2020-2024. The Decision contains general principles and orientations, but also takes into account as far as possible the specific features of the SPRFMO. 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) 2019/859 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) 2019/859 does not provide for an assessment, and where appropriate, a revision of the EU’s position within the SPRFMO before the 2025 annual meeting. However, the vast majority of Council Decisions concerning the EU’s position in the various RFMOs to which it is a contracting party are due for review before the 2024 annual meetings of those RFMOs. Therefore, to promote consistency among the EU’s positions in all RFMOs and to synchronise the timing for the revision procedures, it is appropriate to bring forward the revision of the EU’s position in the SPRFMO for the period 2024-2028 and thereby replace Council Decision (EU) 2019/859.
The current proposal takes into consideration, in relation to 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 .
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’ 10 .
4.1.2.Application to the present case
The SPRFMO Commission is a body set up by an agreement, namely the SPRFMO Convention.
The acts that the SPRFMO Commission is called on to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with Article 17 of the SPRFMO Convention 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 11 ;
Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy 12 ; 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 13 .
The envisaged acts do not supplement or amend the institutional framework of the SPRFMO Convention.
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) 2019/859.
4.3.Conclusion
The legal basis of the proposed Decision should be Article 43 i TFEU, in conjunction with Article 218(9) TFEU.