EUROPEAN COMMISSION

Brussels, 6.3.2019

COM(2019) 98 final

2019/0048(NLE)

Proposal for a

COUNCIL DECISION

concerning the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission and repealing Decision 9398/1/14 REV 1

EXPLANATORY MEMORANDUM

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 Indian Ocean Tuna Commission (IOTC) for the period 2019-2023 in connection with the envisaged adoption of conservation and management measures.

2.Context of the proposal

2.1.Agreement for the establishment of the Indian Ocean Tuna Commission

The Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC Agreement) aims, by establishing the IOTC, to promote cooperation with a view to ensuring the conservation and optimum utilisation of stocks and encouraging the sustainable development of fisheries based on such stocks. The Agreement entered into force on 23 March 1996.

The Union is a party to the IOTC Agreement, having approved it pursuant to Council Decision 95/399/EC 1 .

2.2.Indian Ocean Tuna Commission

The IOTC is the body established by the Agreement to be responsible for the management and conservation of the fishery resources in the area covered by the Agreement. It adopts conservation and management measures to ensure the conservation of the stocks covered by the Agreement and to promote their optimum utilisation.

As a member of the IOTC, the Union has participation and voting rights. The IOTC takes decisions by consensus, with the possibility of a three-quarters majority vote.

2.3.IOTC decisions

The IOTC has the authority to adopt conservation and enforcement measures for the fisheries under its purview and these are binding on the contracting parties.

In accordance with Article IX.4 of the Agreement, the measures enter into force 120 days after the date on which the contracting parties are notified of them by the IOTC. Contracting parties that object to a measure within 120 days of being notified are not bound by it. If more than a third of the contracting parties submit an objection, the other contracting parties are not obliged to implement the contested measure.

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) is currently established according to a twotier approach. A Council Decision sets out the guiding principles and orientations of the Union’s position on a multiannual basis and it is subsequently adjusted for each annual meeting by Commission non-papers to be discussed in the Council Working Party.

For the IOTC, this approach is implemented by Council Decision 9398/1/14 REV 1 2 of 8 May 2014, which sets out the Union’s position in the IOTC for the period 20142018. The Decision contains general principles and orientations, but also takes into account to the extent possible the specificities of the IOTC. In addition, it sets out the standard process for establishing the Union’s position year by year, as requested by Member States.

Decision 9398/1/14 REV 1 provides for a review of the Union’s position before the 2019 annual meeting. Therefore, this proposal sets out the Union’s position in the IOTC for the period 2019-2023, thereby replacing Decision 9398/1/14 REV 1.

Decision 9398/1/14 REV 1 incorporated the principles and orientations of the new common fisheries policy (CFP), 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 in the Commission’s Communication on the external dimension of the CFP 4 . Moreover, it adjusted the Union’s position to the Lisbon Treaty.

The current revision takes account, in connection with impacts of fishing, of the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European strategy for plastics in a circular economy 5 , the Joint Communication by the High Representative of the Union for Foreign Affairs and Security Policy and the Commission on International ocean governance: an agenda for the future of oceans 6 and the Council conclusions on that Joint Communication 7 .

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 are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ 8 .

4.1.2.Application to the present case

The IOTC is a body set up by an agreement, namely the IOTC Agreement.

The acts that the IOTC is called upon to adopt constitute acts having legal effects. They are to be binding under international law in accordance with Article IX of the IOTC Agreement 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 9 ;

·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the CFP 10 ; 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 11 .

The envisaged acts do not supplement or amend the institutional framework of the IOTC Agreement.

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 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 9398/1/14 REV 1, which covers the period 20142018.

4.3.Conclusion

The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU.

2019/0048 (NLE)

Proposal for a

COUNCIL DECISION

concerning the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission and repealing Decision 9398/1/14 REV 1

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2), in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

(1)By Council Decision 95/399/EC 12 , the Union concluded the Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC Agreement), which established the Indian Ocean Tuna Commission (IOTC).

(2)The IOTC is the body established by the established by the IOTC Agreement responsible for the management and conservation of the fishery resources of the IOTC Agreement area. The Commission adopts conservation and management measures to ensure the conservation of the stocks covered by the IOTC Agreement and to promote their optimum utilisation. Such measures may become binding upon the Union.

(3)Regulation (EU) No 1380/2013 of the European Parliament and of the Council 13  provides that the Union is to ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies. It also provides that the Union is to apply the precautionary approach to fisheries management, and is to ensure that exploitation of living marine biological resources restores and maintains population of harvested species above levels, which can produce the maximum sustainable yield. It further provides that the Union is to take management and conservation measures based on best available scientific advice, to support the development of scientific knowledge and advice, to gradually eliminate discards and to promote fishing methods that contribute to more selective fishing and the avoidance and reduction, as far as possible, of unwanted catches, to fishing with low impact on marine ecosystem and fishery resources. Besides, Regulation (EU) No 1380/2013 specifically provides that those objectives and principles are to be applied by the Union in the conduct of its external fisheries relations.

(4)As stated in the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission on International ocean governance: an agenda for the future of oceans 14 , and the Council conclusions on that Joint communication 15 , the promotion of measures to support and enhance the effectiveness of regional fisheries management organisations (RFMOs) and, where relevant, improve their governance is central to the Union’s action in these fora.

(5)The Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a European Strategy for Plastics in a Circular Economy 16 , refers to specific measures to reduce plastics and marine pollution as well as the loss or abandonment at sea of fishing gear.

(6)It is appropriate to establish the position to be taken on the Union’s behalf in the meetings of the IOTC for the period 2019-2023, as the IOTC conservation and enforcement measures will be binding on the Union and capable of decisively influencing the content of Union law, namely, Council Regulation (EC) No 1005/2008 17 ; Council Regulation (EC) No 1224/2009 18 ; and Regulation (EU) 2017/2403 of the European Parliament and of the Council 19 ;

(7)Currently the position to be taken on the Union’s behalf in the meetings of the IOTC is established by Council Decision 9398/1/14 REV 1 20 . It is appropriate to repeal Decision 9398/1/14 REV 1 and to replace it by a new Decision for the period 2019-2023

(8)In view of the evolving nature of fishery resources in the IOTC Agreement Area and the consequent need for the position of the Union to take account of new developments, including new scientific and other relevant information presented before or during the meetings of the IOTC, procedures should be established, in line with the principle of sincere cooperation among the Union institutions enshrined in Article 13(2) of the Treaty on the European Union (TEU), for the year-to-year specification of the Union’s position for the period 2019-2023.

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union’s behalf in the meetings of the Indian Ocean Tuna Commission (IOTC) is set out in Annex I.

Article 2

The year-to-year specification of the Union’s position to be taken in the meetings of the IOTC shall be conducted in accordance with Annex II.

Article 3

The Union’s position set out in Annex I shall be assessed and, where appropriate, revised by the Council upon a proposal from the Commission, at the latest for the annual meeting of the IOTC in 2024.

Article 4

Decision 9398/1/14 REV 1 of 8 May 2014 is repealed.

Article 5

This Decision is addressed to the Commission.

Done at Brussels,

(1)

   Council Decision 95/399/EC of 18 September 1995 on the accession of the Community to the Agreement for the establishment of the Indian Ocean Tuna Commission (OJ L 236, 5.10.1995, p. 24).

(2)    Council Decision 9398/1/14 REV 1 on position to be adopted, on behalf of the Union, in the Indian Ocean Tuna Commission.

(3)    Regulation (EU) No 1380/2013 of the European Parliament and of the Council on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council Decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22).

(4)    COM(2011) 424, 13.7.2011.

(5)    COM(2018) 28 final, 16.1.2018.

(6)    JOIN(2016) 49 final, 10.11.2016.

(7)    7348/1/17 REV 1, 24.3.2017.

(8)    Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12, ECLI:EU:C:2014:2258, paragraphs 61 to 64.

(9)    OJ L 286, 29.10.2008, p. 1.

(10)    OJ L 343, 22.12.2009, p. 1.

(11)    OJ L 347, 28.12.2017, p. 81.

(12)    Council Decision of 18 September 1995 on the accession of the Community to the Agreement for the establishment of the Indian Ocean Tuna Commission (OJ L 236, 5.10.1995, p. 24).

(13)    Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC) No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and Council decision 2004/585/EC (OJ L 354, of 28.12.2013, p. 22).

(14)    JOIN(2016) 49 final of 10.11.2016.

(15)    7348/1/17 REV 1 of 24.3.2017.

(16)    COM(2018) 28 final, 16.1.2018.

(17)    Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing activities, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 (OJ L 286, 29.10.2008, p. 1).

(18)    Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1).

(19)    Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets, and repealing Council Regulation (EC) No 1006/2008 (OJ L 347, 28.12.2017, p. 81).

(20)    Council Decision 9398/1/14 REV 1 on position to be adopted, on behalf of the Union, in the Indian Ocean Tuna Commission.

EUROPEAN COMMISSION

Brussels, 6.3.2019

COM(2019) 98 final

ANNEXES

to the

proposal for a Council Decision

concerning the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission and repealing Decision 9398/1/14 REV 1

ANNEX I

The position to be taken on the Union’s behalf in the Indian Ocean Tuna Commission (IOTC)

1.PRINCIPLES

In the framework of the IOTC, the Union shall:

a) act in accordance with the objectives and principles pursued by the Union within the common fisheries policy (CFP), notably through the precautionary approach and the aims related to the maximum sustainable yield as laid down in Article 2(2) of Regulation (EU) No 1380/2013, to promote the implementation of an ecosystem-based approach to fisheries management, to avoid and reduce, as far as possible, unwanted catches, and gradually eliminate discards, and to minimise the impact of fishing activities on marine ecosystems and their habitats, as well as, through the promotion of economically viable and competitive Union fisheries, to provide a fair standard of living for those who depend on fishing activities and take account of the interests of consumers;

b) work towards an appropriate involvement of stakeholders in the preparation phase for IOTC measures and ensure that measures adopted within the IOTC are in accordance with the IOTC Agreement;

c) ensure that measures adopted within the IOTC are consistent with international law, and in particular with the provisions of the 1982 UN Convention on the Law of the Sea, the 1995 UN Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, the 1993 Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, and the 2009 Food and Agriculture Organization Port State Measures Agreement;

d) promote positions consistent with the best practices of regional fisheries management organisations (RFMOs) in the same area;

e) seek consistency and synergy with the policy that the Union is pursuing as part of its bilateral fisheries relations with third countries, and ensure coherence with its other policies notably in the field external relations, employment, environment, trade, development, research and innovation;

f)ensure that the Union's international commitments are respected;

g) be in line with the Council Conclusions of 19 March 2012 on the Commission Communication on the External dimension of the common fisheries policy 1 ;

h) aim to create a level playing field for the Union fleet within the IOTC Agreement Area based on the same principles and standards as those applicable under Union law, and to promote the uniform implementation of those principles and standards;

i) be in line with the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission on International ocean governance: an agenda for the future of oceans 2 , as well as the Council conclusions on that Joint communication 3 and promote measures to support and enhance the effectiveness of the IOTC and, where relevant, improve its governance and performance (in particular as regards science, compliance, transparency and decision-making) as a contribution to the sustainable management of oceans in all its dimensions;

j) promote coordination between RFMOs and regional sea conventions (RSCs) and cooperation with global organisations, as applicable, within their respective mandates, where appropriate;

k) promote coordination and cooperation with other tuna RFMOs on issues of common interest, notably via the reactivation of the so-called Kobe process for tuna RFMOs and its extension to all RFMOs.

2.ORIENTATIONS

The Union shall, where appropriate, endeavour to support the adoption of the following actions by the IOTC:

a) conservation and management measures for fisheries resources in the IOTC Agreement area based on the best scientific advice available, including Total Allowable Catches (TACs) and quotas or effort regulation for living marine biological resources regulated by the IOTC, which would achieve the maximum sustainable yield exploitation rate on a progressive, incremental basis at the latest by 2020. Where necessary, specific measures for stocks, which suffer from overfishing shall be considered in order to keep the fishing effort in line with available fishing opportunities;

b) measures to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing activities in the IOTC Agreement area, including IUU vessel listing;

c) monitoring, control and surveillance measures in the IOTC Agreement area in order to ensure efficiency of control and compliance with measures adopted within the IOTC;

d) measures to minimise the negative impact of fishing activities on marine biodiversity and marine ecosystems and their habitats, including measures to reduce marine pollution and prevent the discharge of plastics at sea and reduce the impact on marine biodiversity and ecosystems of plastics present at sea, protective measures for sensitive marine ecosystems in the IOTC Agreement area in line with the UNGA Resolutions, and measures to avoid and reduce as far as possible unwanted catches, including in particular vulnerable marine species, and to gradually eliminate discards;

e)measures to manage the use of fish aggregating devices (FADs) notably to improve collection of data, to accurately quantify, track and monitor FADs use, to reduce impact on vulnerable tuna stocks, to mitigate their potential effects on target and non-target species, as well as on the ecosystem, and to reduce the contribution to marine debris;

f)measures to reduce the impact of Abandoned, Lost or Otherwise Discarded Fishing Gear (ALDFG) in the ocean and to facilitate the identification and recovery of such gear;

g) measures aimed at the prohibition of fisheries conducted solely for the purpose of harvesting shark fins and requiring that all sharks are landed with all fins naturally attached;

h)recommendations, where appropriate and to the extent permitted under the relevant constituent documents, encouraging the implementation of the Work in Fishing Convention of the International Labour Organisation (ILO);

i) additional technical measures based on advice from the bodies and working groups of the IOTC.

ANNEX II

Year to year specification of the Union’s position to be taken

at meetings of the Indian Ocean Tuna Commission

Before each meeting of the IOTC, when that body is called upon to adopt decisions having legal effects on the Union, the necessary steps shall be taken so that the position to be expressed on the Union's behalf takes account of the latest scientific and other relevant information transmitted to the Commission, in accordance with the principles and orientations set out in Annex I.

To this effect, and based on that information, the Commission shall transmit to the Council, or to its preparatory bodies, in sufficient time before each meeting of the IOTC, a written document setting out the particulars of the proposed specification of the Union’s position for discussion and endorsement of the details of the position to be expressed on the Union's behalf.

If in the course of a IOTC meeting it is impossible to reach an agreement, including on the spot, in order for the Union’s position to take account of new elements, the matter shall be referred to the Council or its preparatory bodies.

(1)    7087/12 REV 1 ADD 1 COR 1.

(2)    JOIN(2016) 49 final of 10.11.2016.

(3)    7348/1/17 REV 1 of 24.3.2017.