Explanatory Memorandum to COM(2021)785 - EU position in the North Pacific Fisheries Commission - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
dossier | COM(2021)785 - EU position in the North Pacific Fisheries Commission. |
---|---|
source | COM(2021)785 ![]() |
date | 10-12-2021 |
1. Subject matter of the proposal
This proposal concerns a Decision establishing the position to be taken on the Union’s behalf at meetings of the North Pacific Fisheries Commission (NPFC) between 2022 and 2027 to adopt conservation and management measures.
2. Context of the proposal
2.1.Convention on the Conservation and Management of High Seas Fishery Resources in the North Pacific Ocean
The Convention on the Conservation and Management of High Seas Fishery Resources in the North Pacific Ocean (NPFC Convention) aims, by establishing the NPFC, to ensure the long-term conservation and sustainable use of fishery resources in the Convention area. The Convention entered into force on 19 July 2015.
The Union is a party to the NPFC, having ratified the Convention pursuant to Council Decision 2022/XX/EU 1 .
2.2.NPFC
The NPFC Convention set up the NPFC to manage and conserve fishery resources in the Convention area. The NPFC adopts measures to ensure the long-term conservation and sustainable use of fishery resources under its purview.
As a member of the NPFC, the Union has participation and voting rights. The NPFC usually takes its decisions by consensus; however, it may take decisions by a three-quarters majority of its members, except where the NPFC Convention expressly provides for consensus.
2.3.NPFC decisions
The NPFC has the authority to adopt conservation and enforcement measures for the fisheries under its purview, which are binding on the contracting parties.
In accordance with Article 9(1)(b) of the NPFC Convention, the measures enter into force 90 days after the date on which the contracting parties are notified of them by the NPFC.
If any member of the NPFC presents an objection to a decision at least two weeks in advance of the date that the decision becomes binding, the decision will not become binding on that member to the extent of the objection. Objections may be based solely on the grounds that the decision is inconsistent with the provisions of the NPFC Convention, the 1982 UN Law of the Sea Convention or the UN Fish Stocks 1995 Agreement, or that the decision unjustifiably discriminates in form or in fact against the objecting member.
3. Position to be taken on the Union’s behalf
The position to be adopted on behalf of the Union at the annual meetings of regional fisheries management organisations (RFMOs) will be established according to a two‑tier approach.
A Council Decision sets out the guiding principles and orientations of the Union’s position on a multiannual basis and will subsequently be adjusted for each annual meeting by Commission non-papers to be discussed in the Council Working Party.
The Decision contains general principles and orientations, but also takes the specificities of the NPFC into account as far as possible. In addition, it sets out the standard process for establishing the Union’s position year by year, as requested by Member States.
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 Union’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 which are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 2 .
4.1.2.Application to the present case
The NPFC is a body set up by an agreement, namely the NPFC Convention.
The acts that the NPFC is called upon to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law, in accordance with Article 8 of the NPFC 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 (IUU) fishing 3 ;
·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy 4 ; and
·Council Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets 5 .
The envisaged acts do not supplement or amend the institutional framework of the NPFC 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 Union’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. Regulation (EU) No 1380/2013 is the legal basis setting out the principles to be reflected in this position.
Therefore, the substantive legal basis of the proposed Decision is Article 43(2) TFEU. The Decision is to replace Decision 9784/17.
4.3.Conclusion
The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU.