Explanatory Memorandum to COM(2023)429 - EU position in the Western Central Atlantic Fishery Commission - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)429 - EU position in the Western Central Atlantic Fishery Commission. |
|---|---|
| source | COM(2023)429  |
| 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 parties of the Western Central Atlantic Fishery Commission (WECAFC) in 2024-2028 on the adoption of non-binding resolutions and recommendations regarding the conservation and management of living marine resources.
2.1.The FAO Resolution establishing the Western Central Atlantic Fishery Commission
The WECAFC was established in 1973 by Resolution 4/61 of the Council of the Food and Agriculture Organization (FAO) of the United Nations, under Article VI (1) of the FAO Constitution. The WECAFC aims to promote the effective conservation, management and development of the living marine resources for which it is responsible in accordance with the FAO Code of Conduct for Responsible Fisheries and address common problems of fisheries management and development faced by its members.
The EU is a member of the WECAFC 1 , as are Spain, France and Netherlands.
2.2.The Western Central Atlantic Fishery Commission
The WECAFC is a consultative technical and regional fisheries body (RFB) established under Article VI (1) of the FAO Constitution. The WECAFC’s Secretariat is managed and financed by the FAO. Its main functions include promoting, coordinating and facilitating governance and activities related to the conservation and management of living marine resources for which it is responsible. The WECAFC can also provide advice to its members and relevant fisheries organisations on fisheries management, monitoring, control and surveillance. It can also assist its members, where appropriate, in the implementation of relevant international fisheries instruments and, on request, in conserving, managing and developing transboundary and straddling stocks under their respective national jurisdictions 2 .
As a member, the EU is entitled to participate in, and vote on, its decisions. The WECAFC endeavours to take its decisions by consensus. In other cases, decisions are taken by a majority of the votes cast, except as otherwise provided by its rules of procedure.
2.3.Decisions adopted by the Western Central Atlantic Fishery Commission
Under Article 6(h) of its revised statutes, the WECAFC gives advice on management measures (‘recommendations’ and ‘resolutions’) to member governments and the relevant fisheries organisations. Because of its advisory status, the WECAFC’s decisions are not binding on its members.
3.Position to be taken on the EU’s behalf
Consistent with the procedures applicable to regional fisheries management organisations (RFMOs), the position to be adopted on behalf of the EU at the annual meetings of RFBs such as the WECAFC shall be established using 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 before each annual meeting by Commission services non-papers to be endorsed by the Council.
For the WECAFC, this approach is implemented by Council Decision (EU) 2019/1563 of 16 September 2019, which sets out the EU’s position in the WECAFC for the period 2019-2023. The Decision contains general principles, but also takes into account as far as possible the specific features of the WECAFC. 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) 2019/1563 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 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) 2019/1563 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 WECAFC for the period 2024-2028, thereby replacing Council Decision (EU) 2019/1563.
The current proposal 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 (‘the Treaty’) 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’.
The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the rules of international law governing the body in question. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 11 .
4.1.2.Application to this case
The WECAFC is a technical and regional fisheries body set up by FAO resolution 4/61 of 1973, under Article VI (1) of the FAO Constitutions. While the WECAFC decisions (‘recommendations’ and ‘resolutions’) are not binding on its members, acts that the WECAFC is called on to adopt do constitute acts capable of decisively influencing the content of the legislation adopted by the EU legislature.
The envisaged act does not supplement or amend the institutional framework of the agreement.
Therefore, the procedural legal basis for the proposed decision is Article 218(9) of the Treaty.
4.2.Substantive legal basis
4.2.1.Principles
The substantive legal basis for a decision under Article 218(9) of the Treaty depends primarily on the objective and content of the envisaged act in respect of which a position is being taken on the EU’s behalf. If the envisaged 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) of the Treaty must have a single substantive legal basis, which is that required by the main aim or component.
4.2.2.Application to this case
The main objective and content of the envisaged act relates to fisheries. The legal basis that sets 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) 2019/1563, which covers the period 2019-2023.
4.3.Conclusion
The legal basis of the proposed decision should therefore be Article 43 i of the Treaty, in conjunction with Article 218(9) of the Treaty.