EUROPEAN COMMISSION Brussels, 14.12.2020 COM(2020) 802 final 2020/0354(NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at meetings of the Parties to the Port State Measures Agreement to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing



EXPLANATORY MEMORANDUM 1.Subject matter of the proposal This proposal concerns the decision establishing the position to be taken on the Union's behalf at meetings of the Parties to the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. 2.Context of the proposal 2.1.The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing The Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (‘the Agreement’) is the first binding international agreement to specifically target Illegal Unreported and Unregulated (IUU) fishing. Its main objective is to prevent, deter and eliminate IUU fishing by preventing vessels engaged in IUU fishing from using ports and introducing their catches into the markets. In this way, the Agreement reduces the incentive of such vessels to continue to operate while it also blocks fishery products derived from IUU fishing from reaching national and international markets. The effective implementation of the Agreement ultimately contributes to the long-term conservation and sustainable use of living marine resources and marine ecosystems. The provisions of the Agreement apply to fishing vessels seeking entry into a port of a State which is different to their flag State. The Agreement has been negotiated in the framework of the Food and Agriculture Organisation (FAO), of which the European Union is a member. It was approved by the FAO Conference at its Thirty-sixth Session on 22 November 2009, through Resolution N° 12/2009, under Article XIV, paragraph 1 of the FAO Constitution. It entered into force on 5 June 2016 and has now 67 Parties. The European Union was among the first to become a party to the Agreement, in 2011. 2.2.The meeting of the Parties The meeting of the Parties is the decision-making body under the Agreement, which shall meet every two years or more frequently if it so decides. Article 24 paragraph 2 of the Agreement also provides that, four years after the entry into force of the Agreement, FAO shall convene a meeting of the Parties to review and assess the effectiveness of this Agreement in achieving its objective. The Parties shall then decide on further such meetings as necessary. Special meetings of the Parties can also be held at such other times as may be deemed necessary by the Parties, or at the written request of any Party. 2.3.Decisions by the meeting of the Parties The meeting of the Parties has the authority to adopt measures to prevent, deter and eliminate illegal, unreported and unregulated fishing and these are binding on the contracting parties. In principle, the Parties take decisions on substance by consensus but, where the Chairperson determines that all efforts to reach consensus have been exhausted, the decision shall be taken by a simple majority of the votes cast. Amendments to the Rules of Procedure for the Meetings of the Parties may be adopted by consensus and, if consensus cannot be achieved, the decision shall be taken by a two-thirds majority of the votes cast, provided that such majority is more than half of all the Parties. The Union has participation and voting rights. 3.Position to be taken on the Union's behalf It is proposed that the position to be adopted on behalf of the Union at the meetings of the Parties is established according to a two-tier approach. A Council Decision will set out the guiding principles and orientations of the Union’s position on a multiannual basis, and it is subsequently adjusted for each meeting by Commission non-papers to be discussed in the Council Working Party.

This approach is currently also taken in regional fisheries management organisations (RFMOs) and the position that is to be taken on behalf of the Union in those meetings. The present decision incorporates the principles and orientations of the common fisheries policy (CFP) as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council and is guided by the Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing established by Regulation (EC) No 1005/2008. It takes into account the provisions of the Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the CFP, 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, Council Regulation (EU) 2019/1241 of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures and Commission Implementing Regulation (EU) 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy. This decision also takes into consideration the international commitments of the EU under the United Nations Convention on the Law of the Sea of 10 December 1982 (UNCLOS), the United Nations Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks of 4 August 1995 (UN Fish Stocks Agreement), the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas of 24 November 1993 of the Food and Agriculture Organization of the United Nations (FAO Compliance Agreement), as well as other relevant multilateral and bilateral agreements. This decision reflects the objectives set in the Commission Communication on the external dimension of the CFP and the related Council conclusions, the Council conclusions on Oceans and Seas, the Council conclusions on 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’, including in relation to cooperation with third countries for the implementation of the Port State Measures Agreement. It also considers the IUU fishing aspects of the EU Maritime Security Strategy and its revised implementing Action Plan. Finally, it is inspired by the Commission’s statement in its Communication on The Green Deal that it would take a zero-tolerance approach to illegal, unreported and unregulated fishing, an objective that was then reaffirmed in the two Commission Communications on an “EU Strategy Biodiversity Strategy for 2030” and “A Farm to Fork for a Fair, Healthy and Environmental-Friendly Food System”. 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. It also includes instruments that do not have a binding effect under international law, but that are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’. 4.1.2.Application to the present case The meeting of the Parties is a body set up by an agreement, namely the Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing. The acts which the meeting of the Parties is called upon to adopt constitute acts having legal effects. The envisaged acts of the meeting of the Parties will be binding under international law and are capable of decisively influencing the content of EU legislation, namely: ·Council Regulation (EC) 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing; ·Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the CFP; ·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; ·Council Regulation (EU) 2019/1241 of the European Parliament and of the Council of 20 June 2019 on the conservation of fisheries resources and the protection of marine ecosystems through technical measures; ·Commission Implementing Regulation (EU) 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy. However, the envisaged acts do not supplement or amend the institutional framework of the 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 the envisaged 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 acts 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. 4.3.Conclusion The legal basis of the proposed decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU. 2020/0354 (NLE) Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at meetings of the Parties to the Port State Measures Agreement to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing 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)The Port State Measures Agreement to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (the ‘Agreement’), negotiated under the aegis of the Food and Agriculture Organisation (FAO), of which the Union is a Member, was approved by the Union by Council Decision (EU) 2011/443. The Agreement has entered into force on 5 June 2016. (2)The meeting of the Parties is the decision-making body under the Agreement and has the authority to adopt measures to prevent, deter and eliminate illegal, unreported and unregulated fishing that are binding on the Parties. It shall meet every two years or more frequently if it so decides. (3)Article 24 paragraph 2 of the Agreement also provides that, four years after the entry into force of the Agreement, FAO shall convene a meeting of the Parties to review and assess the effectiveness of the Agreement in achieving its objective. The Parties shall then decide on further such meetings as necessary. Special meetings of the Parties can also be held at such other times as may be deemed necessary by the Parties, or at the written request of any Party. (4)It is appropriate to establish the position to be taken on the Union's behalf in the meeting of the Parties to the Agreement for the first review meeting of the Agreement as set out in its Article 24(2) of the Agreement, and the three subsequent biennial meetings of the Parties and any related inter-sessional meetings in that regard as from the adoption of the current position, as measures under the Agreement will be binding on the Union and capable of decisively influencing the content of Union law, namely, Council Regulations (EC) No 1005/2008 and (EC) No 1224/2009, Regulation (EU) 2017/2403 of the European Parliament and of the Council and Commission Implementing Regulation (EU) 404/2011 laying down detailed rules for the implementation of Council Regulation (EC) 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy.