Explanatory Memorandum to COM(2023)425 - EU position in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea - Main contents
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| dossier | COM(2023)425 - EU position in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock ... |
|---|---|
| source | COM(2023)425  |
| 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 annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea 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 Pollock Resources in the Central Bering Sea
The Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Bering Sea Convention) aims, by establishing the annual Conference of the Parties to the Convention, to ensure the long-term conservation and sustainable use of pollock resources in the Convention area. The Convention entered into force on 8 December 1995.
The Republic of Poland is a contracting party to the Bering Sea Convention. The EU is not a party to the Convention. In accordance with Article 6(9) of the Accession Act 1 , fisheries agreements that Member States have concluded with non‑EU countries are to be managed by the EU and the EU is to implement any decisions established under them.
Council Decision 7277/16 of 11 April 2016 authorised Poland to negotiate, in the interest of the EU, an amendment to the Bering Sea Convention with a view to the EU becoming a contracting party. In October 2016, Poland proposed to the Bering Sea Convention Depositary such an amendment. The respective negotiation is still not completed. Council Decision (EU) 2023/575 of 9 March 2023 authorised Poland to ratify, in the interest of the European Union, the amendment to the Bering Sea Convention that would allow the participation of the EU as a party to that Convention. It is understood that, once the EU is accepted as a full contracting party, Poland will withdraw its membership.
2.2.The annual Conference of the Parties
The annual Conference of the Parties is the body established by the Bering Sea Convention to be responsible for the management and conservation of pollock resources in the Convention area. It adopts conservation and management measures to ensure the long-term conservation and sustainable use of fishery resources under its purview.
As a member of the annual Conference of the Parties, Poland has participation and voting rights. As the EU is not a party to the Convention, and the Bering Sea Convention’s scope falls under exclusive competent of the EU, Poland is represented by the Commission at the annual Conference of the Parties. The annual Conference of the Parties usually takes its decisions by consensus.
2.3.Decisions of the annual Conference of the Parties
The annual Conference of the Parties has the authority to adopt measures for the fisheries under its purview and these are binding on the contracting parties.
The measures agreed by the contracting parties enter into force immediately after the contracting parties have been notified of them.
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 and orientations 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 annual Conference of the Parties, this approach is implemented by the Council Decision (EU) 2019/866 of 14 May 2019, which sets out the EU’s position in the Bering Sea Convention for the period 2019-2023. The Decision contains general principles and orientations, but also takes into account to the extent possible the specificities of the Bering Sea Convention. 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) 2019/866 provides for a review of the EU’s position before the 2024 annual meeting. Therefore, this proposal sets out the EU’s position in the Bering Sea Convention for the period 2024-2028, thereby replacing the Council Decision (EU) 2019/866.
Council Decision (EU) 2019/866 incorporated the principles and orientations 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
The current revision 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 annual Conference of the Parties is a body set up by an agreement, namely the Bering Sea Convention.
The acts that the annual Conference of the Parties is called upon to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with the Bering Sea 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 Bering Sea 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. Regulation (EU) No 1380/2013 is the legal act setting out the principles to be reflected in this position.
Therefore, the substantive legal basis of the proposed Decision is Article 43 i TFEU. The Decision is to replace Council Decision (EU) 2019/866.
4.3.Conclusion
The legal basis of the proposed Decision should be Article 43 i TFEU, in conjunction with Article 218(9) TFEU.