# EUR-Lex - 52012PC0447 - EN

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# 52012PC0447

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 /* COM/2012/0447 final - 2012/0216 (COD) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

The Treaty on the Functioning of the
European Union (TFEU) makes a distinction between the powers delegated to the
Commission to adopt non-legislative acts of general application to supplement
or amend certain non-essential elements of the legislative act as laid down in
Article 290(1) of the TFEU (delegated acts), and the powers conferred upon the
Commission to adopt uniform conditions for implementing legally binding Union
acts as laid down in Article 291(2) of the TFEU (implementing acts).

In relation to the adoption of Regulation
(EU) No 182/2011, the Commission made the following statement:

"The Commission will proceed to an
examination of all legislative acts in force which were not adapted to the regulatory
procedure with scrutiny before the entry into force of the Lisbon Treaty, in
order to assess if those instruments need to be adapted to the regime of
delegated acts introduced by Article 290 of the Treaty on the Functioning of
the European Union. The Commission will make the appropriate proposals as soon
as possible and no later than the dates mentioned in the indicative calendar
annexed to this declaration."[1]

In the context of the alignment of
Regulation (EC) No 812/2004 to the new rules of the TFEU, powers currently
conferred to the Commission by that Regulation have been reclassified into
measures of delegated nature and measures of implementing nature.

The Commission should therefore be
empowered to adopt delegated acts to adapt conditions and technical
specifications for the use of acoustic deterrent devices. Likewise the
Commission should be empowered to adopt implementing acts concerning the
procedure and format for reporting obligations for Member States.

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

There was no need for consultation of
interested parties or for impact assessment.

3.           LEGAL ELEMENTS OF THE PROPOSAL

· Summary of the proposed action

To identify the powers conferred upon the
Commission in Council Regulation (EC) No 812/2004 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 182/2004, therefore no concern on
the proportionality principle 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.

2012/0216 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Council Regulation (EC) No
812/2004 laying down measures concerning incidental catches of cetaceans in
fisheries and amending Regulation (EC) No 88/98

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,

Having regard to the opinion of the
European Economic and Social Committee, after transmission of the draft
legislative act to the national Parliaments,

Acting in accordance with the ordinary
legislative procedure,

Whereas:

(1)       Council Regulation (EC) No
812/2004[2]
confers powers upon the Commission in order to implement some of the provisions
of that Regulation.

(2)       As a consequence of the
entry into force of the Lisbon Treaty, the Commission powers conferred for the
implementation of Regulation (EC) No 812/2004 need to be aligned to Articles
290 and 291 of the Treaty on the Functioning of the European Union.

(3)       In order to apply certain
provisions of Regulation (EC) No 812/2004, the power to adopt acts in accordance
with Article 290 of the Treaty on the Functioning of the European Union should be
delegated to the Commission in respect of technical specifications and
conditions of use of acoustic deterrent devices.

(4)       It is of particular
importance that the Commission carry out appropriate consultations during its
preparatory work for the adoption of delegated acts, 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 the provisions of Regulation (EC) No
812/2004 concerning rules on the procedure and format for reporting obligations
for Member States, 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)       Regulation (EC) No
812/2004 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 812/2004 is amended as
follows:

(1)
In Article 3, paragraph 1 is replaced by the
following:

"1. Acoustic deterrent devices used in
application of Article 2(1) shall comply with technical specifications and
conditions of use. The conditions and specifications are defined in Annex II. The
Commission shall be empowered to amend Annex II by means of delegated acts
adopted in accordance with Article 8a, in order to adapt that Annex to
technical and scientific progress."

(2)
Article 8, is replaced by the following:

"Article 8
Implementation

Detailed rules on the procedure and format
for reporting, as set out in Article 6 may be established by means of
implementing acts adopted in accordance with the examination procedure referred
to in Article 8b(2)."

(3)
The following Articles 8a and 8b are inserted:

"Article 8a
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 Article 3(1) shall be conferred for an indeterminate period of
time.

3.           The delegation of powers
referred to in Article 3(1) may be revoked at any time by the European
Parliament or by the Council. A decision of 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 Article 3(1) shall enter into force only if no objection has been
expressed either by the European Parliament or the Council within a period of 2
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 2 months at the initiative of the European Parliament
or the Council.

Article 8b
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 2

This Regulation shall enter into force on
the 20th 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 L 55, 28.02.2011, p.19

[2]               OJ L 150, 30.4.2004, p. 12.

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