EUROPEAN COMMISSION Brussels, 7.9.2020 COM(2020) 489 final 2020/0246(NLE) Proposal for a COUNCIL IMPLEMENTING DECISION on the authorisation of the United Kingdom to express its consent to be bound, in its own capacity, by certain international agreements to be applied during the transition period in the area of the Union's common fisheries policy



EXPLANATORY MEMORANDUM This proposal concerns the Council Implementing Decision on the authorisation of the United Kingdom to express its consent to be bound in its own capacity, by certain international agreements entering into force during the transition period in the area of the Union's common fisheries policy. 1.Context of the proposal The Union and the United Kingdom have negotiated a withdrawal agreement pursuant to Article 50 of the Treaty on European Union. The Withdrawal Agreement (hereinafter “WA”) entered into force on 1 February 2020, after having been agreed on 17 October 2019, together with the Political Declaration setting the framework of the future EU-UK partnership. Article 127(1) WA provides for a transition period during which Union law will continue to be applicable to and in the United Kingdom, ("transition period"). The transition period ends on 31 December 2020. Article 129(1) WA provides that, during the transition period, the United Kingdom is bound by the obligations stemming from the international agreements concluded by the Union, by Member States acting on its behalf, or by the Union and its Member States acting jointly. The Union has informed its international partners of the specific arrangements foreseen in the WA under which, during a transition period, the United Kingdom will be treated as a Member State for the purposes of the international agreements concluded by the Union. Article 129(3) WA provides that, in accordance with the principle of sincere cooperation, the United Kingdom must refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests, in particular in the framework of any international organisations, agency, conference or forum of which the United Kingdom is a party in its own right. In accordance with Article 129(4) WA, during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union. Council Decision 2020/135 sets out the conditions and procedure for granting such authorisations. Pursuant to Article 3(1) of Council Decision 2020/135, the Council may authorise the United Kingdom to express its consent to be bound, in its own capacity, by an international agreement intended to enter into force or be applied during the transition period, in an area of exclusive competence of the Union. In accordance with Article 3(1) of Council Decision 2020/135, such authorisation may only be granted if: (a)the United Kingdom has demonstrated a specific interest in the international agreement in question already entering into force or applying during the transition period; (b)the international agreement in question is compatible with Union law applicable to and in the United Kingdom in accordance with Article 127 WA and is compatible with the obligations referred to in Article 129(1) of the Agreement; and (c)the entry into force or application of the international agreement in question during the transition period would neither put at risk the attainment of an objective of the Union’s external action in the area concerned nor be otherwise prejudicial to the Union’s interests. Pursuant to Article 3(2) of Council Decision 2020/135, an authorisation granted pursuant to paragraph 1 may be conditional upon the inclusion in or removal from the agreement in question of any provision or may be conditional upon the suspension of the application of any provision of that agreement, where necessary to ensure consistency with the conditions set out in paragraph 1. By means of its letter of 3 April 2020, the United Kingdom notified the European Commission of its intention to express its consent to be bound, in its own capacity, by five international agreements - establishing five regional fisheries management organisations (hereinafter RFMOs) - intended to be applied during the transition period, in the area of the Union’s exclusive external competence on fisheries. The RFMOs concerned are the North-East Atlantic Fisheries Commission (NEAFC), the Northwest Atlantic Fisheries Organization (NAFO), the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Indian Ocean Tuna Commission (IOTC), and the North Atlantic Salmon Conservation Organization (NASCO). The United Kingdom justifies its interest in acceding to these RFMOs, during the transition period, in light of Articles 63 and 64 of the United Nations Convention on the Law of the Sea (hereinafter UNCLOS) and Articles 7 and 8 of the United Nations Fish Stocks Agreement (hereinafter UNFSA), in particular the obligations of the Union and of the United Kingdom to cooperate through appropriate regional organisations in the conservation and management of shared stocks.

As provided in Article 63(2) of the UNCLOS and in Article 8 of the UNFSA, where the same stock or stocks of associated species occur both within the exclusive economic zone and in an area beyond and adjacent to that zone, the coastal State and the States fishing for such stocks in the adjacent area are to cooperate to agree upon the measures necessary for the conservation of those stocks in the adjacent area. Such cooperation may be established in the framework of regional fisheries management organisations. The United Kingdom considers that neither it, nor the Union can give full effect to those obligations unless the United Kingdom is able during the transition period to cooperate independently with the EU and other relevant States on matters affecting the UK as an independent coastal State and fishing State after the transition period ends. The United Kingdom thus wants to participate in discussions during the transition period on fisheries management decisions that would take effect after the transition period. The United Kingdom’s request was discussed in the Council Working Party on the United Kingdom. On 8 April 2020, the request was presented together with an initial assessment prepared by the Commission services taking into account the conditions to be fulfilled and the lack of clarity on the extension of the transition period. On 28 August 2020, matter was again presented in the Council Working Party on the United Kingdom. Several meetings in the period between September and December are scheduled to take place under the auspices of the RFMOs concerned will entail discussions on fisheries conservation and management that would take effect after the transition period. 1.1.The North-East Atlantic Fisheries Commission The Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries (‘the NEAFC Convention’) currently applies to the United Kingdom as a result of the Union being a Contracting Party to that Convention, while Article 20(4) of the NEAFC Convention excludes the accession of Member States of the Union. The NEAFC Commission is the competent organisation for recommending management measures to Contracting Parties concerning fisheries beyond the areas under fisheries jurisdiction of the contracting parties and also, if the relevant Contracting Parties request it, for areas under the fisheries jurisdiction of the Contracting Parties. NEAFC's objective is to ensure the long-term conservation and optimum utilisation of the fishery resources in the Convention Area, providing sustainable economic, environmental and social benefits. NEAFC adopts management measures for various fish stocks and control measures to ensure proper implementation. Pursuant to Articles 56, 63 and 116 of the UNCLOS, the United Kingdom has legitimate fishing interests within the Convention Area of the NEAFC Convention (high seas) and as a coastal State, insofar as the waters under the exclusive economic zone of the United Kingdom fall within the Convention Area of the NEAFC Convention. In order to prevent unsustainable fisheries, it is in the interest of the Union that the United Kingdom cooperates in the management of the stocks of common interest in full compliance with the provisions of the UNCLOS and the UNFSA. The United Kingdom has demonstrated its interest to participate in discussions on fisheries conservation and management decisions during the transition period that would take effect after the transition period. That would allow the United Kingdom to prepare the application and implementation of those measures effectively. The United Kingdom has confirmed that the entry into force or application of the NEAFC Convention during the transition period will neither put at risk the attainment of an objective of the Union’s external action in the area of the common fisheries policy nor be otherwise prejudicial to the Union’s interests. Without prejudice to the Union’s interests and provided that the United Kingdom only participates in meetings on issues that concern matters to be applied from the end of the transition period, it is appropriate to authorise the United Kingdom to express its consent, in its own capacity, to be bound by the NEAFC Convention. 1.2.The Northwest Atlantic Fisheries Organization The Northwest Atlantic Fisheries Organization (NAFO) Convention y applies to the United Kingdom as a result of the Union being a Contracting Party to that Convention. The NAFO is an intergovernmental fisheries science and management body. The NAFO Convention applies to most fishery resources of the Northwest Atlantic except salmon, tunas/marlins, whales, and sedentary species (e.g. shellfish). Pursuant to Article 116 of the UNCLOS, the United Kingdom has active fishing interests within the NAFO Convention area. Its vessels currently fish for the NAFO cod stocks in the "Regulatory Area" (the area covered by the NAFO Convention beyond the jurisdiction of any of the Contracting Parties). In order to prevent unsustainable fisheries, it is in the interest of the Union that the United Kingdom cooperates in the management of the stocks of common interest in full compliance with the provisions of UNCLOS and UNFSA. The United Kingdom has demonstrated its interest to participate in discussions on fisheries conservation and management decisions during the transition period that would take effect after the transition period. That would allow the United Kingdom to prepare the application and implementation of those measures effectively. The United Kingdom has confirmed that the entry into force or application of the NAFO Convention during the transition period will neither put at risk the attainment of an objective of the Union’s external action in the area of the common fisheries policy nor be otherwise prejudicial to the Union’s interests. Without prejudice to the Union’s interests and provided that the United Kingdom only participates in meetings on issues that concern matters to be applied from the end of the transition period, it is appropriate to authorise the United Kingdom to express its consent, in its own capacity, to be bound by the NAFO Convention. 1.3.The International Commission for the Conservation of Atlantic Tunas The International Convention for the Conservation of Atlantic Tunas (hereinafter ICCAT) applies in and to the UK by virtue of its membership of the EU. The UK has also separately adhered to the Convention on behalf of some of its Overseas Territories.

The main objective of ICCAT is to promote conservation and optimum utilization of tuna and tuna-like species covered by the ICCAT Convention. ICCAT has competence to adopt binding conservation and management measures to support the conservation and optimum utilisation of these stocks. The UK has an active fishing interest within the ICCAT Convention area. Its vessels currently fish for ICCAT stocks in the area covered by the ICCAT Convention beyond the jurisdiction of any of the Parties. The United Kingdom has demonstrated its interest to participate in discussions on fisheries conservation and management decisions during the transition period that would take effect after the transition period. That would allow the United Kingdom to prepare the application and implementation of those measures effectively. The United Kingdom has confirmed that the entry into force or application of the ICCAT Convention during the transition period will neither put at risk the attainment of an objective of the Union’s external action in the area of the common fisheries policy nor be otherwise prejudicial to the Union’s interests. Without prejudice to the Union’s interests and provided that the United Kingdom only participates in meetings on issues that concern matters to be applied from the end of the transition period onwards, it is appropriate to authorise the United Kingdom to express its consent, in its own capacity, to be bound by the NAFO Convention. 1.4.The Indian Ocean Tuna Commission The Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC) applies in and to the United Kingdom by virtue of its membership to the EU and as a result of the Union being a Contracting Party to the IOTC Agreement. The UK has also separately accepted the Agreement on behalf of the British Indian Ocean Territory ("BIOT'). The Indian Ocean Tuna Commission ("IOTC"), is responsible for the conservation and optimum utilization of stocks covered by the IOTC Agreement and encouraging sustainable development of fisheries based on such stocks. The United Kingdom has an active fishing interest within the IOTC competence area. Its vessels currently fish for stocks in the area covered by the IOTC Agreement beyond the jurisdiction of any of the States member of the IOTC. The United Kingdom has demonstrated its interest to participate in discussions on fisheries conservation and management decisions during the transition period that would take effect after the transition period. That would allow the United Kingdom to prepare the application and implementation of those measures effectively. The United Kingdom has confirmed that the entry into force or application of the IOTC Agreement during the transition period will neither put at risk the attainment of an objective of the Union’s external action in the area of the common fisheries policy nor be otherwise prejudicial to the Union’s interests. Without prejudice to the Union’s interests and provided that the United Kingdom only participates in meetings on issues that concern matters to be applied from the end of the transition period, it is appropriate to authorise the United Kingdom to express its consent, in its own capacity, to be bound by the IOTC Agreement. 1.5.The North Atlantic Salmon Conservation Organisation The North Atlantic Salmon Conservation Organisation (NASCO) is responsible for the regulation of the fishing activity of wild salmon at sea throughout the North Atlantic. It is in the interest of the Union that the United Kingdom cooperates in the management of salmon stocks in full compliance with the provisions of UNCLOS and UNFSA. Pursuant to Article 66 of the UNCLOS, States in whose rivers anadromous stocks originate have the primary interest in and responsibility for such stocks. The State of origin of anadromous stocks must ensure their conservation by the establishment of appropriate regulatory measures for fishing in all waters landward of the outer limits of its exclusive economic zone. In cases where anadromous stocks migrate into or through the waters landward of the outer limits of the exclusive economic zone of a State other than the State of origin, such State must cooperate with the State of origin with regard to the conservation and management of such stocks. The United Kingdom, as a State of origin and as a State exercising fisheries jurisdiction has legitimate interests within the NASCO Convention Area insofar as the waters under the exclusive economic zone of the United Kingdom and the adjacent high seas fall within the NASCO Convention Area. The United Kingdom has demonstrated its interest to participate in discussions on fisheries conservation and management decisions during the transition period that would take effect after the transition period. That would allow the United Kingdom to prepare the application and implementation of those measures effectively. The United Kingdom has confirmed that the entry into force or application of the NASCO Convention during the transition period will neither put at risk the attainment of an objective of the Union’s external action in the area of the common fisheries policy nor be otherwise prejudicial to the Union’s interests. Without prejudice to the Union’s interests and provided that the United Kingdom only participates in meetings on issues that concern matters to be applied from the end of the transition period, it is appropriate to authorise the United Kingdom to express its consent, in its own capacity, to be bound by the NASCO Convention. 2.Position to be taken on the authorisation By its letter of 3 April 2020, the United Kingdom has demonstrated a specific interest in the international agreements in question already applying during the transition period. Therefore, the condition referred to in Article 3(1)(a) of Council Decision 2020/135 is fulfilled. A core objective of the Common Fisheries Policy, as set out in Regulation (EU) No 1380/2013 of the European Parliament and of the Council is “to ensure that fishing activities are environmentally, economically and socially sustainable and are managed consistently with the objectives of achieving economic, social and employment benefits, and of restoring and maintaining fish stocks above levels which can produce maximum sustainable yield and that they are contributing to the availability of food supplies The five international agreements are compatible with Union law, in particular the objectives of the Common Fisheries Policy, applicable to and in the United Kingdom in accordance with Article 127(1) WA and with the obligations referred to in Article 129(1) WA. Therefore, the conditions set out in Article 3(1)(b) of Council Decision 2020/135 are fulfilled.

The United Kingdom has not requested a prolongation of the transition period, which will consequently end at 31 December 2020 without any possibility for another extension. As the transition period end on 31 December 2020, the United Kingdom will not be able to participate in Union decision-making on issues that fall after the end of the transition period. The conditions referred to in Article 3(1)(c) of Council Decision 2020/135 are fulfilled. The entry into force or application of the international agreements in respect of the United Kingdom in its own right, during the transition period, does not put at risk the attainment of the objectives of the Union’s external action in the area of the common fisheries policy and does not risk to be prejudicial to the Union’s interests. Therefore, in accordance with the provisions of Article 129(4) WA, it is recommended that the Council authorises the United Kingdom during the transition period, to sign and ratify the five international conventions entered into in its own capacity in the areas of exclusive competence of the Union. This will facilitate and enable the United Kingdom to give full effect to the obligations emanating from UNCLOS, especially its Articles 63, 66 and 116. In order to ensure the good functioning of the Union’s common fisheries policy during the transition period, the United Kingdom should not participate in matters applied or taking effect during the transition period. Moreover, in order not to prejudice the ongoing negotiations on fisheries in the future EU-UK partnership agreement, in particular as regards fishing opportunities for which the Union’s quota includes currently the United Kingdom share, the United Kingdom should enter into consultation with the EU prior to discussing such quota. 3.Legal basis 3.1.Substantive legal basis 3.1.1.Principles The substantive legal basis for a Council Implementing Decision Council authorising the United Kingdom to express its consent, in its own capacity, to be bound by an international agreement intended to enter into force, in its own capacity, or be applied during the transition period, in an area of exclusive competence of the Union is Article 3 of Council Decision 2020/135. 3.1.2.Application to the present case The main objective and content of the envisaged act relate to the Common Fisheries Policy. Therefore, the substantive legal basis of the proposed decision is Article 43 TFEU. 3.2.Conclusion The legal basis of the proposed decision should be Article 3 of Council Decision 2020/135. 2020/0246 (NLE) Proposal for a COUNCIL IMPLEMENTING DECISION on the authorisation of the United Kingdom to express its consent to be bound, in its own capacity, by certain international agreements to be applied during the transition period in the area of the Union's common fisheries policy THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union,

Having regard to Council Decision (EU) 2020/135 of 30 January 2020 on the conclusion of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, and in particular Article 3(1) thereof, Having regard to the proposal from the European Commission, Whereas: (1)Article 129(1) of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (Withdrawal Agreement) provides that, during the transition period, the United Kingdom is to be bound by the obligations stemming from the international agreements concluded by the Union, by Member States acting on its behalf, or by the Union and its Member States acting jointly (2)Article 129(3) of the Withdrawal Agreement provides that, in accordance with the principle of sincere cooperation, the United Kingdom is to refrain, during the transition period, from any action or initiative which is likely to be prejudicial to the Union's interests, in particular in the framework of any international organisation, agency, conference or forum of which the United Kingdom is a party in its own right. (3)In accordance with Article 129(4) of the Withdrawal Agreement, during the transition period, the United Kingdom may negotiate, sign and ratify international agreements entered into in its own capacity in the areas of exclusive competence of the Union, provided those agreements do not enter into force or apply during the transition period, unless so authorised by the Union. (4)Decision (EU) 2020/135 sets out the conditions and procedure for granting such authorisations. (5)Pursuant to Article 3(1) of Decision (EU) 2020/135, the Council may authorise the United Kingdom to express its consent, in its own capacity, to be bound by an international agreement intended to enter into force or be applied during the transition period, in an area of exclusive competence of the Union. (6)On 3 April 2020, the United Kingdom notified the Commission of its intention to express its consent to be bound, in its own capacity, by five international agreements - establishing five regional fisheries management organisations (RFMOs) - intended to be applied during the transition period, in the area of the Union’s exclusive external competence on fisheries. Those agreements are the Convention on Future Multilateral Cooperation in the North-East Atlantic Fisheries establishing the North-East Atlantic Fisheries Commission (NEAFC), the Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries establishing the Northwest Atlantic Fisheries Organization (NAFO), the International Convention for the Conservation of Atlantic Tunas establishing the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Agreement for the establishment of the Indian Ocean Tuna Commission (IOTC) and the Convention for the Conservation of Salmon in the North Atlantic Ocean establishing the North Atlantic Salmon Conservation Organization (NASCO). (7)The United Kingdom justifies its interest in acceding to those Agreements, during the transition period, in light of Articles 63 and 64 of the United Nations Convention on the Law of the Sea (UNCLOS) and Articles 7 and 8 of the United Nations Fish Stocks Agreement (UNFSA), in particular the obligations of the Union and of the United Kingdom to cooperate through appropriate regional organisations in the conservation and management of shared stocks. The United Kingdom considers that neither it nor the Union can give full effect to those obligations unless the United Kingdom is able during the transition period to cooperate independently with the Union and other relevant States on matters affecting the United Kingdom as an independent coastal State and fishing State after the transition period ends. The United Kingdom thus wants to participate in discussions during the transition period on fisheries management decisions that would take effect after the transition period. (8)By its letter of 3 April 2020, the United Kingdom has demonstrated a specific interest in the international agreements in question already applying during the transition period. Therefore, the condition referred to in Article 3(1)(a) of Decision (EU) 2020/135 is fulfilled. (9)The five international agreements are compatible with Union law to and in the United Kingdom in accordance with Article 127(1) of the Withdrawal Agreement and with the obligations referred to in Article 129(1) of the Withdrawal Agreement. Therefore, the conditions set out in Article 3(1)(b) of Decision (EU) 2020/135 are fulfilled. (10)The United Kingdom confirmed as well that its accession to those international agreements would not be prejudicial to the Union’s interests. Moreover, the United Kingdom only intends to participate in meetings on issues that concern matters having effect after the end of the transition period. The conditions referred to in Article 3(1)(c) of Decision (EU) 2020/135 are considered fulfilled. In particular, the United Kingdom’s membership in its own right, during the transition period, does not put at risk the attainment of the objectives of the Union’s external action in the area of the common fisheries policy and does not risk to be prejudicial to the Union’s interests. (11)Pursuant to Article 3(2) of Decision (EU) 2020/135, such authorisation may be conditional. The authorisation should be granted provided that the United Kingdom only participates in meetings on issues that concern matters to be applied and to take effect from the end of the transition period. (12)The United Kingdom is bound by the obligations resulting from the UNCLOS and the UNFSA and consequently has to manage and conserve marine living resources in a sustainable manner. Those objectives are in line with the Union’s objective of ensuring sustainability, and of securing continued responsible fisheries that ensures the long-term conservation and sustainable exploitation of marine biological resources. (13)Therefore, in accordance with Article 129(4) of the Withdrawal Agreement, during the transition period, the United Kingdom may, in its own right, sign and ratify the five international agreements underlying the five RFMOs to which it seeks accession. This is to facilitate and enable the United Kingdom to give full effect to the obligations emanating from the UNCLOS, especially its Articles 63 and 64, at the moment the transition period ends and Union law ceases to apply to it. (14)The United Kingdom should be authorised to express its consent, in its own capacity, to be bound by the international agreements intended to be applied during the transition period, (15)In order to ensure the good functioning of the Union’s common fisheries policy during the transition period, the United Kingdom should not participate in matters applied or taking effect during the transition period. Moreover, in order not to prejudice the ongoing negotiations on fisheries in the future EU-UK partnership agreement, in particular as regards fishing opportunities for which the Union’s quota includes currently the United Kingdom share, the United Kingdom should enter into consultation with the EU prior to discussing such quota. HAS ADOPTED THIS DECISION: Article 1