Explanatory Memorandum to COM(2023)430 - EU position in the North-East Atlantic Fisheries Commission - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2023)430 - EU position in the North-East Atlantic Fisheries Commission. |
|---|---|
| source | COM(2023)430  |
| date | 11-07-2023 |
This proposal concerns a Decision establishing the position to be taken on the EU’s behalf at meetings of the North-East Atlantic Fisheries Commission (NEAFC) for the period 2024-2028 in connection with the envisaged adoption of conservation and management measures.
2.1.Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries
The Convention on Future Multilateral Cooperation in North-East Atlantic Fisheries (NEAFC Convention) aims, by establishing the NEAFC, to ensure the long-term conservation and optimum utilisation of the fishery resources in the Convention area (‘the regulatory area’). The Convention entered into force on 17 March 1982 and was amended in 2004 and 2006. The 2006 amendment formally entered into force on 29 October 2013.The 2004 amendment has not yet entered into force.
The EU is a party to the NEAFC Convention, having approved it under Council Decision 81/608/EEC 1 . The 2004 and 2006 amendments were approved by Council Decision 2009/550/EC 2 .
2.2.North-East Atlantic Fisheries Commission
The NEAFC is the body established by the NEAFC Convention to be responsible for the management and conservation of fishery resources in the regulatory area. It adopts conservation and management measures to achieve optimum utilisation of the fishery resources for which is it responsible.
As a member of the NEAFC, the EU is entitled to participate in, and vote on, its decisions. The NEAFC takes its decisions on conservation and control measures by a two thirds majority of the votes of all Contracting Parties who are present and who cast affirmative or negative votes.
2.3.NEAFC decisions
The NEAFC has the authority to adopt conservation and management measures for the fisheries for which it is responsible and these are binding on the contracting parties.
In accordance with Article 12 (1) and i of the NEAFC Convention, the measures enter into force 80 days after the date on which the contracting parties are notified of them by the NEAFC. Contracting parties that object to a measure within 50 days of being notified are not bound by that measure. Where more than a third of the contracting parties submit an objection, the remaining 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 NEAFC, this approach is implemented by Council Decision (EU) 2019/865 of 14 May 2019, which sets out the EU’s position in the NEAFC for the period 2019-23. The Decision contains general principles, but also takes into account, as far as possible, the specific features of the NEAFC. 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) 2019/865 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) 2019/865 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 NEAFC for the period 2024-2028, thereby replacing Council Decision (EU) 2019/865.
This proposal takes into account, 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
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 on 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 .
Application to this case
The NEAFC is a body set up by an agreement, namely the NEAFC Convention.
The acts that the NEAFC is called upon to adopt constitute acts having legal effects. They are to be binding under international law in accordance with Article 12 of the NEAFC 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 12 ;
·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy 13 ; 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 14 .
The envisaged acts do not supplement or amend the institutional framework of the NEAFC Convention.
Therefore, the procedural legal basis for the proposed Decision is Article 218(9) TFEU.
4.2.Substantive legal basis
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.
Application to this 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) 2019/865, 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.