# EUR-Lex - 52012PC0155 - EN

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# 52012PC0155

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1098/2007 of 18 September 2007 establishing a multi-annual plan for the cod stocks in the Baltic Sea and the fisheries exploiting those stocks /* COM/2012/0155 final - 2012/0077 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

CONTEXT OF THE PROPOSAL

The objective of this proposal is to amend Council
Regulation (EC) No 1098/2007 of 18 September 2007 establishing a multi-annual
plan for the cod stocks in the Baltic Sea and the fisheries exploiting those
stocks ("the plan"). This act was adopted prior to the entry into
force of the Treaty on the Functioning of the European Union (TFEU).

The plan has as its core objective to
ensure that Baltic cod stocks can be exploited under sustainable economic,
environmental and social conditions. To attain it, the plan lays down rules for
the establishment of the annual fishing opportunities for this stock in terms
of total allowable catch and fishing effort. Such rules use certain technical parameters,
by reference to which the stock can be considered to be in better or worse
conservation status, therefore closer to or further away from the plan's
objective. These parameters are science-based and not a policy choice. Science
may evolve and improve, and the plan needs to contain the necessary provisions
to ensure it is kept up to date with the best science available.

Furthermore, Article 27 of the Regulation
stipulates that if scientific advice indicates that that the fishing mortality
rates are disaccording with the objectives of the plan, the Council must by
qualified majority revise mortality rates as to ensure that the plan can attain
its management objectives. The current text therefore confers the power to
amend these non-essential elements of the plan on the Council. Such
decision-making procedure is no longer possible under the TFEU.

Similarly, Article 26 provides
for modification by the Council of certain non-essential elements of the plan
to ensure that the objectives are met.

Article 290 of the TFEU provides that a legislative
act may delegate to the Commission the power to adopt non-legislative acts of
general application to supplement or amend certain non-essential elements of
the legislative act. By way of consequence, the decision-making procedure
foreseen in Article 26 and 27 of the Regulation should be converted into a
system of delegated powers to be exercised by the Commission under the
conditions set out in the plan itself. The plan should therefore be amended
accordingly.

The plan requires evaluation of the impact
of the management measures on the stocks concerned and on the fisheries
concerned. The timeline set in the Regulation in force is neither feasible nor
efficient. This requirement encounters considerable
difficulties due to the limited availability of relevant data to carry out
appropriate assessment. According to scientific advice a full evaluation of 3
year performance of the plan cannot be conducted until 5 years from the
commencement of the plan. Consequently, the timeline for evaluation of the plan
should be modified.

Implementing powers should be given to the
Commission to confirm whether the conditions established in Article 29 of this
Regulation are fulfilled and, consequently whether relevant provisions apply in
the subdivisions concerned.

Additionally, the
Commission and Member States signed up to the aim of achieving a maximum
sustainable yield (MSY) for depleted stocks by 2015 at the latest, but it is not indicated as objective of the plan. To avoid any ambiguities
in the plan the reference to the maximum sustainable yield should be included
in the plan.

Article 5 and 8 should be amended
accordingly to clarify that the procedure at issue is that provided for by the
Treaty.

This amendment is primarily aimed at
changes enabling this plan to work efficiently within the new decisional
framework set up by the Lisbon Treaty.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Not applicable

3.           LEGAL ELEMENTS OF THE
PROPOSAL

• Summary of the proposed action

The main legal action is to identify the
powers conferred upon the Commission in Council Regulation (EC) No 1098/2007
and to classify these as delegated or implementing powers.

• Legal basis

Article 43(2) of the Treaty on the
Functioning of the European Union.

• Subsidiarity principle

The proposal falls under exclusive
competence of the European Union.

• Proportionality principle

The proposal is amending measures which
already exist in Council Regulation (EC) No 1098/2007, therefore no concern on
the principle of proportionality arises.

• Choice of instrument

Proposed instrument: Regulation of the
European Parliament and of the Council.

Other means would not be adequate for the
following reason: a Regulation must be amended by a Regulation.

4.           BUDGETARY IMPLICATION

This measure does not involve any
additional Union expenditure.

2012/0077 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Council Regulation (EC) No
1098/2007 of 18 September 2007 establishing a multi-annual plan for the cod
stocks in the Baltic Sea and the fisheries exploiting those stocks

THE EUROPEAN PARLIAMENT AND THE
COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the
European Commission,

After transmission of the draft legislative
act to the national Parliaments,

Having regard to the opinion of the
European Economic and Social Committee[1],

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       To avoid any ambiguity and
ensure consistency with international commitments of the Union for achieving a maximum sustainable yield for
depleted stocks, the objectives of multi-annual plan
for the cod stocks in the Baltic Sea and the fisheries exploiting those stocks,
established by Council Regulation (EC) No 1098/2007[2], should be clarified
accordingly.

(2)       Regulation (EC) No
1098/2007 provides for the follow-up and revision of the minimum fishing mortality
rates specified therein in case of inadequacy of those rates to meet the objectives
of that plan.

(3)       In accordance with Article
290 of the Treaty the Commission may be empowered to supplement or amend
non-essential elements of a legislative act by means of delegated acts.

(4)       In order to achieve in an
efficient way the targets set out in Regulation (EC) No 1098/2007 and be able
to react swiftly to changes in stock conditions or in fishery, the power to
adopt acts in accordance with Article 290 of the Treaty should be delegated to the
Commission in respect of the revision of the minimum fishing mortality rates,
when scientific data indicate that the rates are no longer appropriate and
measures are not sufficient to reach the objectives of the plan. It is of
particular importance that the Commission carry out appropriate consultations
during its preparatory work, including at expert level.

(5)       The Commission, when
preparing and drawing up delegated acts, should ensure a simultaneous, timely
and appropriate transmission of relevant documents to the European Parliament
and to the Council.

(6)       In order to ensure uniform
conditions for the implementation of Article 29 of Regulation (EC) No 1098/2007,
implementing powers should be conferred upon the Commission. Those powers
should be exercised in accordance with Regulation (EU) No 182/2011 of the
European Parliament and of the Council of 16 February 2011 laying down the rules
and general principles concerning mechanisms for control by Member States of
the Commission’s exercise of implementing powers[3].

(7)       To ensure the efficiency
of an evaluation of the plan's performance the timeline of evaluation provided
for in Regulation (EC) No 1098/2007 should be modified.

(8)       In addition, the decision
making procedure concerning the setting of fishing opportunities referred to in
Regulation (EC) No 1098/2007 should be clarified following the entry into force
of the Treaty on the Functioning of the European Union.

(9)       The proposed amendments
are therefore primarily aimed at changes enabling the plan to work efficiently
within the new decisional framework set up by the Lisbon Treaty.

(10)     Regulation (EC) No
1098/2007 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1098/2007 is amended as
follows:

(1)
In Article 4, the introductory phrase is
replaced by the following :

"The plan
shall ensure the sustainable exploitation of the cod stocks concerned on the
basis of maximum sustainable yield by gradually reducing and maintaining the
fishing mortality rates at levels no lower than:"

(2)
In Article 5, paragraph 1 is replaced by the
following:

"1. Each year the Council shall decide in
accordance with the Treaty on the TACs for the cod stocks concerned for the
following year."

(3)
In Article 8, paragraph 3 is replaced by the
following:

"3. The Council shall decide each year in
accordance with the Treaty on the maximum number of days absent from port
outside periods specified in paragraph 1 in the following year when fishing
with the gear referred to in paragraph 1 is allowed, in accordance with the
rules set out in paragraphs 4 and 5."

(4)
Article 26 is replaced by the following:

"Article
26

Evaluation of the
plan

"Every five years from 18 September 2007,
the Commission shall evaluate the operation and performance of this
multi-annual plan. Where appropriate, the Commission may propose adaptations to
the multi-annual plan or adopt delegated acts in accordance with Article 27."

(5)
Article 27 is replaced by the following:

"Article
27

Revision of minimum
fishing mortality rates

The Commission shall be empowered to adopt
delegated acts in accordance with Article 29a to revise the minimum fishing
mortality rates set out in Article 4, when scientific data indicates that the
values for the minimum fishing mortality rates are disaccording with the
objectives of the management plan."

(6)
In Article 29 paragraphs 2, 3 and 4 are replaced
by the following:

"2. Article 8(1)(b), (3), (4) and
(5) shall not apply to ICES Subdivisions 27 and/or 28.2 if there is evidence that
catches of cod in those ICES Subdivisions are lower than 3% of the total cathes
of cod in Area B. The Commission shall, each year, by means of implementing
acts and on the basis of the reports from Member States referred to in
paragraph 1 and of scientific data, confirm whether such evidence exists and,
consequently, whether the restrictions provided for in Article 8(1)(b), (3),
(4) and (5) apply in the subdivisions concerned. Those implementing acts shall
be adopted in accordance with the examination procedure referred to in Article
29b(2)"

3. Article 8(1)(b), (3), (4) and (5) shall only
apply to ICES Subdivision 28.1, if there is evidence that the catches of cod
are higher than 1.5% of the total catches of cod in Area B. The Commission
shall, each year, by means of implementing acts and on the basis of the reports
from Member States referred to in paragraph 1 and of scientific data, confirm
whether such avidence exists and, consequently, whether the restrictions
provided for in Article 8(1)(b), (3), (4) and (5) apply in the subdivision
concerned. Those implementing acts shall be adopted in accordance with the
examination procedure referred to in Article 29b(2)"

4. The implementing acts referred to in paragraphs
2 and 3 shall apply from 1 January to 31 December of the following year."

(7)
The following Chapter VIa is inserted:

"Chapter VIa

"Article 29 a

Exercise of the
delegation

1. The power to adopt delegated acts is
conferred on the Commission subject to the conditions laid down in this
Article.

2. The delegation of power referred to in Articles
26 and 27 shall be conferred on the Commission for an indeterminate period of
time.

3. The delegation of power referred to in
Articles 26 and 27 may be revoked at any time by the European Parliament or by
the Council. A decision to revocation shall put an end to the delegation of the
power specified in that decision. It shall take effect the day following the
publication of the decision in the Official Journal of the European Union
or at a later date specified therein. It shall not affect the validity of any delegated
acts already in force.

4. As soon as it adopts a delegated act, the
Commission shall notify it simultaneously to the European Parliament and to the
Council.

5. A delegated act adopted pursuant to Articles
26, and 27 shall enter into force only if no objection has been expressed
either by the European Parliament or the Council within a period of two months
of notification of that act to the European Parliament and the Council or if,
before the expiry of that period, the European Parliament and the Council have
both informed the Commission that they will not object. That period shall be
extended by two months at the initiative of the European Parliament or the
Council."

"Article 29b

Committee procedure

1. The Commission shall be assisted by the Committee for Fisheries and Aquaculture established by Article 30 of
Regulation (EC) No 2371/2002. That Committee shall be a
committee within the meaning of Regulation (EU) No 182/2011.

2. Where reference is made to this paragraph,
Article 5 of Regulation (EU) No 182/2011 shall apply."

"Article
29c

Council
decisions

Where this Regulation provides for decisions to
be taken by the Council, the Council shall act in accordance with the
Treaty."

Article 2

This Regulation shall enter into force on
the twentieth day following that of its publication in the Official Journal
of the European Union.

This Regulation shall be binding
in its entirety and directly applicable in all Member States.

Done at Brussels,

For the European Parliament                       For
the Council

The President                                                 The
President

[1]               OJ C, , p. .

[2]               OJ L 248, 22.9.2007

[3]               OJ L 55, 28.2.2011, p. 13.