EUROPEAN COMMISSION
Brussels, 10.12.2021
COM(2021) 785 final
2021/0413(NLE)
Proposal for a
COUNCIL DECISION
concerning the position to be taken on behalf of the European Union in the North Pacific Fisheries Commission
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 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.
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’.
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;
·Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy; 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.
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.
2021/0413 (NLE)
Proposal for a
COUNCIL DECISION
concerning the position to be taken on behalf of the European Union in the North Pacific Fisheries Commission
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 2022/XX/EU of February 2022, the Union concluded the Convention on the Conservation and Management of High Seas Fishery Resources in the North Pacific Ocean (NPFC Convention), which established the North Pacific Fisheries Commission (NPFC).
(2)The NPFC is responsible for the adoption of conservation and management measures to achieve the objectives of the NPFC Convention. Such measures may become binding upon the Union.
(3)Regulation (EU) No 1380/2013 of the European Parliament and of the Council 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 aim 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, and the Council conclusions on that Joint communication, 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, 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 NPFC for the period 2022-2027, as the NPFC 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; Council Regulation (EC) No 1224/2009; and Regulation (EU) 2017/2403 of the European Parliament and of the Council.
(7)In view of the evolving nature of fishery resources in the NPFC Convention 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 NPFC, 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 position for the period 2022-2027.
HAS ADOPTED THIS DECISION:
Article 1
The position to be taken on the Union’s behalf in the meetings of the North Pacific Fisheries Commission (NPFC) 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 NPFC 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 NPFC in 2028.
Article 4
This Decision is addressed to the Commission.
Done at Brussels,
For the Council
The President
EUROPEAN COMMISSION
Brussels, 10.12.2021
COM(2021) 785 final
ANNEXES
to the
proposal for a Council Decision
concerning the position to be taken on behalf of the European Union in the North Pacific Fisheries Commission
ANNEX I
1.PRINCIPLES
In the framework of the NPFC, 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, and, by promoting economically viable and competitive Union fisheries, to provide a fair standard of living for those who depend on fishing activities, while also taking account of the interests of consumers;
b) work towards appropriate involvement of stakeholders in the preparation of NPFC measures and ensure that measures adopted within the NPFC are in accordance with the objectives of the NPFC Convention;
c) ensure that measures adopted within the NPFC 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 fields of external relations, 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;
h) aim to create a level playing field for the Union fleet within the NPFC Convention 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, as well as the Council conclusions on that Joint Communication, and promote measures to support and enhance the effectiveness of the NPFC and, where relevant, improve its governance and performance (in particular as regards science, compliance, transparency and decision-making);
j) promote coordination between RFMOs and regional sea conventions (RSCs) and cooperation with global organisations within their mandates, where appropriate;
k)promote cooperation mechanisms amongst non-tuna RFMOs similar to the Kobe process for tuna RFMOs.
2.ORIENTATIONS
The Union shall, where appropriate, endeavour to support the adoption of the following actions by the NPFC:
a) conservation and management measures for fisheries resources in the Convention 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 NPFC, which would achieve the maximum sustainable yield exploitation rate on a progressive and incremental basis. Where necessary, those conservation and management measures shall include specific measures for stocks which suffer from overfishing 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 Convention area, including IUU vessel listing;
c) monitoring, control and surveillance measures in the Convention area to ensure efficiency of control and compliance with measures adopted within the NPFC;
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 vulnerable marine ecosystems in the NPFC Convention area, in line with the NPFC Convention and the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas, and measures to avoid and reduce as far as possible unwanted catches, including vulnerable marine species in particular, and to gradually eliminate discards;
e)measures to reduce the impact of abandoned, lost or otherwise discarded fishing gear (ALDFG) in the ocean and to help identify and recover such gear;
f)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);
g) measures that aim to prohibit fisheries conducted solely for the purpose of harvesting shark fins and requiring that all sharks are landed with each fin naturally attached;
h)common approaches with other RFMOs, where appropriate, in particular those involved in fisheries management in the same region;
i) additional technical measures based on advice from the subsidiary bodies and working groups of the NPFC.
ANNEX II
Year-to-year specification of the position to be taken
by the Union at meetings of the North Pacific Fisheries Commission
Before each meeting of the NPFC, 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 European Commission, in accordance with the principles and orientations set out in Annex I.
To this effect, and based on that information, the European Commission shall transmit to the Council, or to its preparatory bodies, in sufficient time before each meeting of the NPFC, a written document setting out the proposed specification of the Union’s position for discussion and endorsement.
If, in the course of a NPFC 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.