EUROPEAN COMMISSION Brussels, 6.3.2019 COM(2019) 98 final 2019/0048(NLE) Proposal for a COUNCIL DECISION concerning the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission and repealing Decision 9398/1/14 REV 1



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 Indian Ocean Tuna Commission (IOTC) for the period 2019-2023 in connection with the envisaged adoption of conservation and management measures. 2.Context of the proposal 2.1.Agreement for the establishment of the Indian Ocean Tuna Commission The Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC Agreement) aims, by establishing the IOTC, to promote cooperation with a view to ensuring the conservation and optimum utilisation of stocks and encouraging the sustainable development of fisheries based on such stocks. The Agreement entered into force on 23 March 1996. The Union is a party to the IOTC Agreement, having approved it pursuant to Council Decision 95/399/EC. 2.2.Indian Ocean Tuna Commission The IOTC is the body established by the Agreement to be responsible for the management and conservation of the fishery resources in the area covered by the Agreement. It adopts conservation and management measures to ensure the conservation of the stocks covered by the Agreement and to promote their optimum utilisation. As a member of the IOTC, the Union has participation and voting rights. The IOTC takes decisions by consensus, with the possibility of a three-quarters majority vote. 2.3.IOTC decisions The IOTC has the authority to adopt conservation and enforcement measures for the fisheries under its purview and these are binding on the contracting parties. In accordance with Article IX.4 of the Agreement, the measures enter into force 120 days after the date on which the contracting parties are notified of them by the IOTC. Contracting parties that object to a measure within 120 days of being notified are not bound by it. If more than a third of the contracting parties submit an objection, the other contracting parties are not obliged to implement the contested measure. 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) is currently established according to a twotier approach. A Council Decision sets out the guiding principles and orientations of the Union’s position on a multiannual basis and it is subsequently adjusted for each annual meeting by Commission non-papers to be discussed in the Council Working Party. For the IOTC, this approach is implemented by Council Decision 9398/1/14 REV 1 of 8 May 2014, which sets out the Union’s position in the IOTC for the period 20142018. The Decision contains general principles and orientations, but also takes into account to the extent possible the specificities of the IOTC. In addition, it sets out the standard process for establishing the Union’s position year by year, as requested by Member States. Decision 9398/1/14 REV 1 provides for a review of the Union’s position before the 2019 annual meeting. Therefore, this proposal sets out the Union’s position in the IOTC for the period 2019-2023, thereby replacing Decision 9398/1/14 REV 1. Decision 9398/1/14 REV 1 incorporated the principles and orientations of the new common fisheries policy (CFP), as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council, also taking into account the objectives set in the Commission’s Communication on the external dimension of the CFP. Moreover, it adjusted the Union’s position to the Lisbon Treaty. The current revision takes account, in connection with impacts of fishing, of 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, 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 and the Council conclusions on that Joint Communication.

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 are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’. 4.1.2.Application to the present case The IOTC is a body set up by an agreement, namely the IOTC Agreement. The acts that the IOTC is called upon to adopt constitute acts having legal effects. They are to be binding under international law in accordance with Article IX of the IOTC Agreement 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 CFP; 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 IOTC 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 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 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 9398/1/14 REV 1, which covers the period 20142018. 4.3.Conclusion

The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU. 2019/0048 (NLE) Proposal for a COUNCIL DECISION concerning the position to be taken on behalf of the European Union in the Indian Ocean Tuna Commission and repealing Decision 9398/1/14 REV 1 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 95/399/EC, the Union concluded the Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC Agreement), which established the Indian Ocean Tuna Commission (IOTC). (2)The IOTC is the body established by the established by the IOTC Agreement responsible for the management and conservation of the fishery resources of the IOTC Agreement area. The Commission adopts conservation and management measures to ensure the conservation of the stocks covered by the IOTC Agreement and to promote their optimum utilisation. 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 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 meetings of the IOTC for the period 2019-2023, as the IOTC 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)Currently the position to be taken on the Union’s behalf in the meetings of the IOTC is established by Council Decision 9398/1/14 REV 1. It is appropriate to repeal Decision 9398/1/14 REV 1 and to replace it by a new Decision for the period 2019-2023 (8)In view of the evolving nature of fishery resources in the IOTC Agreement 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 IOTC, 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’s position for the period 2019-2023. HAS ADOPTED THIS DECISION: Article 1 The position to be taken on the Union’s behalf in the meetings of the Indian Ocean Tuna Commission (IOTC) is set out in Annex I.