# EUR-Lex - 52012PC0332 - EN

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# 52012PC0332

**Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing /* COM/2012/0332 final - 2012/0162 (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 the context
of the alignment of Regulation (EC) No 1005/2008 to the new rules of the TFEU,
powers currently defined by that Regulation have been re-classified into
delegated and implementing powers.

Following this
exercise, a draft proposal for amendment of Regulation (EC) No 1005/2008 has
been prepared.

Pursuant to
Article 290 of the Treaty, the Legislator gives the Commission the task to
complete or modify certain non-essential elements of that Regulation. The Commission
should be empowered to adopt delegated acts to grant exemption from
notification of information by fishing vessels or to establish different
notification periods, to determine benchmarks for inspections of landing and
transhipment operations by third country fishing vessels, to adapt the catch
certification scheme for some fishery products obtained by small fishing
vessels, including the possibility of using a simplified catch certificate, to
amend the list of products not included in the scope of the Regulation, to
adapt the catch certificate submission deadline to the type of fishery product,
the distance to the place of entry or the transport means used, to establish
rules for the granting, amendment or withdrawal of approved economic operators'
certificates or for the suspension or revocation of the status of approved
economic operator and on the conditions of validity of approved economic
operators’ certificates, and to establish Union criteria for verifications in
the context of risk management.

Pursuant to
Article 291 of the Treaty, the Legislator confers implementing powers to the
Commission to ensure uniform conditions for the implementation of Regulation
(EC) No 1005/2008, specifically: the establishment of prior notification forms,
the establishment of landing and transhipment declaration procedures and forms,
the adoption, in agreement with flag States, of catch certificates established,
validated or submitted by electronic means or based on electronic traceability
systems ensuring the same level of control by authorities, the determination
and modification of the list of catch certification schemes adopted by regional
fisheries management organisations complying with the EU IUU Regulation, the
establishment of common conditions in all Member States for procedures and
forms on the application for and issuing of approved economic operators’
certificates, of rules on verifications of approved economic operator and of
rules on the exchange of information between the approved economic operator and
the authorities in the Member States, between the Member States and between
Member States and the Commission, the establishment of the Union IUU vessel
list, the removal of vessels from the Union IUU vessel list, the inclusion of
IUU vessel lists adopted by regional fisheries management organisations in the
Union IUU vessel list, the identification of non-cooperating third countries,
the inclusion of identified third countries on a list of non cooperating third
countries, the removal of third countries from the list of
non-cooperating third countries, the adoption of emergency measures towards third countries in specific circumstances, the establishment of the format for submission by Member States of the
information regarding sighted fishing vessels and the
establishment of rules on mutual assistance.

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

Identify the
powers conferred upon the Commission in Council Regulation (EC) No 1005/2008
and classify these as delegated or implementing powers and adapt certain
provisions to the decision-making procedures of the Lisbon Treaty.

· 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
1005/2008, 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.

2012/0162 (COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL

amending Council Regulation (EC) No
1005/2008 establishing a Community system to prevent, deter and eliminate
illegal, unreported and unregulated fishing

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,

Acting in
accordance with the ordinary legislative procedure,

Whereas:

(1)       Council Regulation (EC) No
1005/2008[1]
of 29 September 2008 establishing a Community system to prevent, deter and
eliminate illegal, unreported and unregulated fishing confers powers upon the
Commission in order to implement some of the provisions of that Regulation and
reserves certain implementing powers to the Council.

(2)       As a consequence of the
entry into force of the Lisbon Treaty, certain powers conferred under Regulation
(EC) No 1005/2008 need to be aligned with Articles 290 and 291 of the Treaty on
the Functioning of the European Union.

(3)       In order to apply some of
the provisions of Regulation (EC) No 1005/2008, 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 the following:

–
the exemption from certain information
requirements imposed on fishing vessels or the establishment of different
notification periods for certain categories of fishing vessels,

–
the establishment of benchmarks for inspections
of landing and transhipment operations by third country fishing vessels,

–
the establishment of the list of products
excluded from the scope of implementation of the catch certificate,

–
the adaptation of the catch certification scheme
for some fishery products obtained by small fishing vessels, including the
possibility of using a simplified catch certificate,

–
the adaptation of the deadline for submitting
the catch certificate, on the basis of the type of fishery product, the
distance to the place of entry into the territory of the Union or the transport
means used,

–
the establishment of rules for the granting,
amendment or withdrawal of approved economic operators' certificates or for the
suspension or revocation of the status of approved economic operator and on the
conditions of validity of approved economic operators’ certificates, and

–
the establishment of Union criteria for
verifications in the context of risk management.

(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.
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 Council.

(5)       In order to ensure uniform
conditions for the implementation of Council Regulation (EC) No 1005/2008 implementing
powers should be conferred upon the Commission in accordance with Article 291
of the Treaty on the Functioning of the European Union in respect of the
following:

–
the establishment of prior notification forms,

–
the establishment of landing and transhipment
declaration procedures and forms,

–
the adoption, in agreement with flag States, of
catch certificates established, validated or submitted by electronic means or
based on electronic traceability systems ensuring the same level of control by
authorities,

–
the determination and modification of the list
of catch certification schemes adopted by regional fisheries management
organisations complying with the EU IUU Regulation,

–
the establishment of common conditions in all
Member States for procedures and forms on the application for and issuing of
approved economic operators’ certificates, of rules on verifications of
approved economic operator and of rules on the exchange of information between
the approved economic operator and the authorities in the Member States,
between the Member States and between Member States and the Commission,

–
the establishment of the Union IUU vessel list,

–
the removal of vessels from the Union IUU vessel
list,

–
the inclusion of IUU vessel lists adopted by
regional fisheries management organisations in the Union IUU vessel list,

–
the identification of non-cooperating third
countries,

–
the inclusion of identified third countries on a
list of non cooperating third countries,

–
the removal of third countries from the list of non-cooperating third countries,

–
the adoption of emergency measures towards third countries in specific circumstances,

–
the determination of the format for submission by
Member States of the information regarding sighted fishing vessels, and

–
the establishment of rules on mutual assistance.      
Where the control of Member States is required those
powers should be exercised in accordance with Regulation (EU) No 182/2011[2] 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.

(6)       As a consequence of the
entry into force of the Lisbon Treaty, Article 52 needs to be deleted. This
Article was already used for the establishment of the legal framework for the
simplified catch certificate and for the establishment of administrative
arrangements with thrid countries under Article 12(4) and 20(4). It is still needed
to provide the necessary powers to the Commission to adopt delegated acts for
the adaptation of the catch certification scheme for some fishery products obtained
by small fishing vessels, including the possibility of using a simplified catch
certificate and implementing powers for the adoption by the Commission, in
agreement with flag States, of catch certificates that are established,
validated and submitted by electronic means or replaced by electronic
traceability systems ensuring the same level of control by authorities.

(7)       As a consequence of the
entry into force of the Lisbon Treaty, the provision on temporary measures
which provides for the referral of certain Commission measures to the Council
under certain conditions needs to be adapted.

(8)       The provisions of
Regulation (EC) No 1005/2008 concerning the establishment of a list of
non-cooperating third countries and the removal of third countries from that
list confer decision-making powers upon Council. As a consequence of the entry
into force of the Lisbon Treaty those provisions need to be brought into line
with the new procedures applicable to the common fisheries policy.

(9)       Regulation (EC) No
1005/2008 should therefore be amended accordingly,

HAVE ADOPTED THIS REGULATION:

Article 1

Regulation (EC) No 1005/2008 is amended as
follows:

1.           Article 6 is amended as
follows:

a) the following paragraph 1a is added

“1a) The Commission may establish the form for
prior notification referred to in paragraph 1 above by means of implementing
acts in accordance with the examination procedure referred to in Article 54(2).

b) paragraph 3 is replaced by the following:

"3. The Commission shall be empowered, in
accordance with Article 54a, to adopt delegated acts exempting certain
categories of third country fishing vessels from the obligation stipulated in
paragraph 1 for a limited and renewable period, or making provision for another
notification period taking into account, inter alia, the type of fishery
product, the distance between the fishing grounds, landing places and ports
where the vessels in question are registered or listed.

2.           in Article 8, paragraph 3
is replaced by the following:

"3. Landing and transhipment declaration
procedures and forms shall be determined by means of implementing acts. Those
implementing acts shall be adopted in accordance with the examination procedure
referred to in Article 54(2)".

3.           in Article 9 paragraph 1
is replaced by the following:

"1. Member States shall carry out
inspections in their designated ports of at least 5 % of landing and
transhipment operations by third country fishing vessels each year, in
accordance with the benchmarks determined on the basis of risk management,
without prejudice to the higher thresholds adopted by regional fisheries
management organisations. The Commission shall be empowered, in accordance with
Article 54a, to adopt delegated acts determining those benchmarks."

4.           Article 12 is amended as
follows:

a) Paragraph 4a is added:

"4a The Commission shall, by means of
implementing acts, adopt the catch certificates established in the framework of
the cooperation set out in Article 20(4). Those implementing acts shall be
adopted in accordance with the examination procedure referred to in Article
54(2).

b) paragraph 5 is replaced by the following:

"5. The list in Annex I of the products
excluded from the scope of implementation of the catch certificate may be
reviewed each year. The Commission shall be empowered, in accordance with
Article 54a, to adopt delegated acts amending the list on the basis of:

(a)     the inspections of third country
fishing vessels in Member States ports;

(b)     the implementation of catch
certification scheme for importation and exportation of fishery products;

(c)     the implementation of the Union alert
system;

(d)     the identification of fishing vessels
engaged in IUU fishing;

(e)     the identification of nationals supporting
or engaged in IUU fishing;

(f)      the implementation of provisions
adopted within certain regional fisheries management organisations pertaining
to fishing vessels sightings;

(g)     the reports from Member States."

c) the following paragraph 6 is added:

"6. The Commission shall be empowered, in accordance with
Article 54a, to adopt delegated acts adapting the catch certification scheme to fishery products obtained
by small fishing vessels including, if necessary, a specimen for simplified
catch certificate."

5.           in Article 13, paragraph 1
is replaced by the following:

1. Catch documents, and any related documents,
validated in conformity with catch documentation schemes adopted by a regional
fisheries management organisation which are recognised as complying with the
requirements laid down in this Regulation, shall be accepted as catch
certificates in respect of the fishery products from species to which such
catch documentation schemes apply and shall be subject to the check and
verification requirements incumbent upon the Member State of importation in
accordance with Articles 16 and 17 and to the provisions on refusal of
importation laid down in Article 18. The list of such catch documentation
schemes shall be determined by means of implementing acts. Those implementing
acts shall be adopted in accordance with the examination procedure referred to
in Article 54(2).

6.           Article 16 is amended as
follows:

a) paragraph 1 is replaced by the following:

"1. The validated catch certificate shall be
submitted by the importer to the competent authorities of the Member State in
which the product is intended to be imported within a deadline initially set at
least three working days before the estimated time of arrival at the place of
entry into the territory of the Union. Such deadline of three working days may
be adapted, by means of delegated acts adopted in accordance with Article 54a,
according to the type of fishery product, the distance to the place of entry
into the territory of the Union or the transport means used. Those competent
authorities shall, on the basis of risk management, check the catch certificate
in the light of the information provided in the notification received from the
flag State in accordance with Articles 20 and 22."

b) paragraph 3 is replaced by the following:

“3. The criteria for granting the status of
approved economic operator to an importer by the competent authorities of a
Member State shall include:

(a)     the establishment of the importer on the
territory of that Member State;

(b)     a sufficient number and volume of import
operations to justify the implementation of the procedure referred to in
paragraph 2;

(c)     an appropriate record of compliance with
the requirements of conservation and management measures;

(d)     a satisfactory system of managing
commercial and, where appropriate, transport and processing records, which
enables the appropriate checks and verifications to be carried out for the
purposes of this Regulation;

(e)     the existence of facilities with regard
to the conduct of those checks and verifications;

(f)      where appropriate, practical standards
of competence or professional qualifications directly related to the activities
carried out; and

(g)     where appropriate, proven financial
solvency.

Member States shall communicate to the Commission
the name and address of the approved economic operators as soon as possible
after having granted this status. The Commission shall make available this
information to the Member States by electronic means.”

c) the following paragraphs 4 and 5 are added:

"4. On the basis of the criteria set out
in paragraph 3, the Commission shall be empowered, in accordance with Article
54a, to adopt delegated acts establishing:

(a)     rules on the
suspension or revocation of the status of approved economic operator,

(b)     rules on the
conditions of validity of approved economic operators' certificates,

(c)     rules on the granting, amendment or withdrawal of approved economic
operators' certificates.

5. The Commission shall adopt implementing acts
in accordance with the examination procedure referred to in Article 54(2) concerning:

(a)     procedures and
forms on the application for and issuing of approved economic
operators' certificates,

(b)     rules on how to carry out
verifications of approved economic operators,

(c)     rules on the exchange of information
between the approved economic operator and the authorities in the Member
States, between the Member States and between Member States and the Commission."

7.           in Article 17, paragraph 3
is replaced by the following:

"3. Verifications shall be focused towards risk identified on the basis of criteria
developed at national or Union level under risk management. Member States shall
notify to the Commission their national criteria within 30 working days after
29 October 2008 and update this information. The Commission
shall be empowered, in accordance with Article 54a, to adopt delegated acts
determining the Union criteria to allow timely risk
analyses and global assessment of relevant control information.

8.           in
Article 27, paragraph 1 is replaced by the following:

"1. The Commission shall establish a Union IUU
vessel list by means of implementing acts adopted in
accordance with the examination procedure referred to in Article 54(2). The list shall include the fishing vessels in relation to which,
further to the measures taken pursuant to Articles 25 and 26 and on the basis
of the criteria contained in the same provisions, the information obtained in
accordance with this Regulation establishes that they are engaged in IUU
fishing as referred to in Article 3 and whose flag States have not complied
with the official requests referred to in Article 26(2)(b) and (c) and Article
26(3)(b) and (c), in response to such IUU fishing."

9.           in
Article 28, paragraph 1 is replaced by the following:

"1.The Commission shall remove a fishing
vessel from the Union IUU vessel list, by means of implementing acts adopted in
accordance with the examination procedure referred to in Article 54(2), if the
fishing vessel's flag State demonstrates that:

(a)     the vessel did not engage in any of the
IUU fishing activities for which it was placed on the list; or

(b)     proportionate, dissuasive and effective
sanctions have been applied in response to the IUU fishing activities in
question, notably for the fishing vessels flying the flag of a Member State in
accordance with Regulation (EC) No 1224/2009"

10.         in Article 30, paragraph 1 is
replaced by the following:

"1. In addition to the fishing vessels
referred to in Article 27, fishing vessels included in the IUU vessel lists adopted
by regional fisheries management organisations shall be included in the Union IUU
vessel list by means of implementing acts. Those implementing acts shall be
adopted in accordance with the examination procedure referred to in Article
54(2). Removal of such vessels from the Union IUU vessel list shall be governed
by the decisions taken with regard to them by the relevant regional fisheries
management organisation."

11.         in Article 31, paragraph 1 is
replaced by the following:

"1. The Commission shall, by means of
implementing acts, identify the third countries that it considers as
non-cooperating third countries in fighting IUU fishing on the basis of the
criteria listed in this Article. Those implementing acts shall be adopted in
accordance with the examination procedure referred to in Article 54(2)."

12.         in Article 33, paragraph 1
is replaced by the following:

"1. The Commission shall, by means of
implementing acts, include the third countries identified in accordance with
Article 31(1) on a list of non cooperating third countries. Those implementing
acts shall be adopted in accordance with the examination procedure referred to
in Article 54(2)."

13.         in Article 34, paragraph 1 is
replaced by the following:

"1. The Commission shall, by means of implementing acts, remove a third country from the list of non-cooperating third countries if the third country concerned demonstrates that
the situation that warranted its listing has been rectified. A removal decision
shall also take into consideration whether the identified third countries
concerned have taken concrete measures capable of achieving a lasting
improvement of the situation. Those implementing acts
shall be adopted in accordance with the examination procedure referred to in
Article 54(2)."

14.         Article 36 is replaced by
the following

"Article
36

Temporary
measures

1. If there is evidence that the measures adopted
by a third country undermine the conservation and management measures adopted
by a regional fisheries management organisation, the Commission may establish, by
means of implementing acts and in line with its international obligations, temporary
measures lasting no more than six months to alleviate
the effects of such third country measures. The Commission
may take a new decision to extend those temporary measures for no more than six
months.

2. The temporary measures referred to in paragraph
1 may provide that:

(a)     fishing vessels authorised to fish and
flying the flag of the third country concerned shall not be granted access to
the ports of Member States, except in case of force majeure or distress as
referred to in Article 4(2) for services strictly necessary to remedy those
situations;

(b)     fishing vessels flying the flag of a
Member State shall not be authorised to engage in joint fishing operations with
vessels flying the flag of the third country concerned;

(c)     fishing vessels flying the flag of a
Member State shall not be authorised to fish in maritime waters under the
jurisdiction of the third country concerned, without prejudice to the provisions
set out in bilateral fishing agreements;

(d)     provision of live fish for fish farming
in maritime waters under the jurisdiction of the third country concerned shall
not be authorised;

(e)     live fish caught by fishing vessels
flying the flag of the third country concerned shall not be accepted for the
purposes of fish farming in maritime waters under the jurisdiction of a Member
State.

3. Temporary measures shall have immediate
effect. They shall be notified to the Member States and to the third country
concerned and published in the Official Journal of the European Union."

15.         in Article 49, paragraph 1 is
replaced by the following:

"1. Member States which obtain suitably
documented information regarding sighted fishing vessels shall transmit this
information without delay to the Commission or to the body designated by it
with the format determined by means of implementing acts. Those implementing
acts shall be adopted in accordance with the examination procedure referred to
in Article 54(2)."

16.         in Article 51, paragraph 3 is
replaced by the following:

"3. The Commission shall be empowered to
adopt, by means of implementing acts, rules on mutual assistance concerning:

(a)     administrative cooperation between Member
States, third countries, the Commission and the body designated by it,
including protection of personal data and use of information and protection of
professional and commercial secrecy,

(b)     costs of executing a requests for
assistance,

(c)     designation of Member States' single
authority,

(d)     communication of follow-up measures taken
by national authorities further to exchange of information,

(e)     request for assistance, including
requests for information, requests for measures and requests for administrative
notifications and establishing deadlines for replies,

(f)      information without prior request and

(g)     Member States' relations with the
Commission and with thrid countries.

Those implementing acts shall be adopted in
accordance with the the examination procedure referred to
in Article 54(2).”

17.         Article
52 is deleted.

18.         Article 54 is replaced by
the following:

"Article 54
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."

19.         the following Article 54a
is inserted:

"Article
54a

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 powers referred to
in Articles 6(3), 9(1), 12(5), 12(6), 16(1), 16(4) and 17(3) shall be conferred
for an indeterminate period of time.

3.       The delegation of powers referred to
in Articles 6(3), 9(1), 12(5), 12(6), 16(1), 16(4) and 17(3) 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
Articles 6(3), 9(1), 12(5), 12(6), 16(1), 16(4) and 17(3) 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 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 L 286, 29.10.2008

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