EUROPEAN COMMISSION Brussels, 7.3.2019 COM(2019) 102 final 2019/0051(NLE) Proposal for a COUNCIL DECISION concerning the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision 9449/1/14 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 Northwest Atlantic Fisheries Organisation (NAFO) for the period 20192023 in connection with the envisaged adoption of conservation and management measures. 2.Context of the proposal 2.1.Convention on Cooperation in the Northwest Atlantic Fisheries The Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO Convention) aims, by establishing the NAFO, to contribute, through consultation and cooperation, to the optimum utilisation, rational management and conservation of the fishery resources of the NAFO Convention area (the regulatory area). The Convention entered into force on 1 January 1979 and has been amended four times. The fourth amendment, which entered into force on 18 May 2017, was designed to modernise NAFO, particularly by: –incorporating an ecosystem approach to fisheries management; –streamlining NAFO’s decision-making process; –strengthening the obligations of the contracting parties, flag states and port states; and –establishing a formal dispute settlement mechanism. The Union is a party to the NAFO Convention, having approved it pursuant to Regulation (EEC) No 3179/78. It ratified the fourth amendment of the Convention by Council Decision 2010/717/EU. 2.2.Commission of the Northwest Atlantic Fisheries Organisation The Commission of the Northwest Atlantic Fisheries Organisation (NAFO Commission) is the body established by the NAFO Convention to be responsible for the management and conservation of fishery resources in the regulatory area. It adopts conservation and enforcement measures to achieve optimum utilisation of the fishery resources under its purview. As a member of the NAFO Commission, the Union has participation and voting rights. The NAFO Commission takes its decisions by consensus. 2.3.NAFO decisions The NAFO Commission 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 XIV.1 of the NAFO Convention, the measures enter into force 60 days after the date on which the contracting parties are notified of them by the NAFO. Any contracting party that presents an objection to a measure within 60 days of being notified is not bound by the 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 NAFO, this approach is implemented by Council Decision 9449/1/14 REV 1 of 19 May 2014, which sets out the Union’s position in the NAFO for the period 2014-2018. The Decision contains general principles and orientations, but also takes into account to the extent possible the specificities of the NAFO. In addition, it sets out the standard process for establishing the Union’s position year by year, as requested by Member States. Decision 9449/1/14 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 NAFO for the period 2019-2023, thereby replacing Decision 9449/1/14 REV 1. Decision 9449/1/14 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 Communication on the external dimension of the CFP. Moreover, it adjusted the Union’s position to the Lisbon Treaty. The current revision takes into consideration, 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 NAFO Commission is a body set up by an agreement, namely the NAFO Convention. The acts that the NAFO Commission is called upon to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with Article XIV of the NAFO Convention 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 Common Fisheries Policy; 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 NAFO Convention. 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 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 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 9449/1/14 REV 1, which covers the period 2014-2018. 4.3.Conclusion The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU. 2019/0051 (NLE) Proposal for a COUNCIL DECISION concerning the position to be taken on behalf of the European Union in the Northwest Atlantic Fisheries Organisation and repealing Decision 9449/1/14 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 Regulation (EEC) No 3179/78, the European Union concluded the Convention on Cooperation in the Northwest Atlantic Fisheries (NAFO Convention), which established the Northwest Atlantic Fisheries Organisation (NAFO). Pursuant to Council Decision 2010/717/EU of 8 November 2010, the Union concluded the fourth amendment to the NAFO Convention that established the Commission of the Northwest Atlantic Fisheries Organisation (NAFO Commission). (2)The NAFO Commission is responsible for the adoption of measures designed to ensure the long-term conservation and sustainable use of the fishery resources in the NAFO Convention area (the regulatory Area) and to safeguard the marine eco-systems in which these resources occur. 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 aim 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 NAFO Commission for the period 2019-2024, and to repeal Council Decision 9449/1/14 REV 1, as the NAFO 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.