Proposal for a Council Decision establishing the position to be adopted on behalf of the European Community with regard to proposals for amendments to the schedule of the International convention on the regulation of whaling
Date: 2007-12-19
Institutions: European Commission
Subjects: European Community, hunting regulations, international cooperation, marine mammal, protected species, protection of animals

EN 

EN 

   EN 

 
 
COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 19.12.2007 
COM(2007) 821 final 

Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Community with 
regard to proposals for amendments to the Schedule of the International Convention on 
the Regulation of Whaling  

(presented by the Commission) 

EN 

   EN 

 
 
 
  
(1) 

(2) 

(3) 

(4) 

(5) 

EXPLANATORY MEMORANDUM 

According  to  Article  174.1  of  the  EC  Treaty,  one  of  the  objectives  of 
Community environment policy is the promotion of measures at international 
level  to  deal  with  regional  or  worldwide  environmental  problems.  This 
objective  encompasses  the  conservation  of  species  at  global  level,  including 
whales.  The  European  Community  is  committed  to  the  conservation  of 
whales and other cetaceans and has put in place environmental legislation that 
ensures a high level of protection in this regard. 

The Habitats Directive1 lists all cetacean species in its Annex IV. This means 
that  all  whale  species  are  strictly  protected  from  deliberate  disturbance, 
capture  or  killing  within  Community  waters.  The  same  Directive  also 
prohibits  the  keeping,  transport  and  sale  or  exchange,  of  specimens  taken 
from the wild. This legislation does not allow the resumption of commercial 
whaling on any stock totally or partially occurring in Community waters. Due 
to the migratory character of whale stocks, it is clear that the objectives of the 
Habitats Directive can only be achieved in full if a comparable international 
regulatory framework is in place. 

Council Regulation 338/97/EC on the protection of species of wild fauna and 
flora  by  regulating  trade  therein,2  implementing  the  provisions  of  the 
Convention on International Trade in Endangered Species of Wild Fauna and 
Flora  (CITES)  in  the  EC,  bans  the  introduction  of  cetaceans  into  the 
Community for primarily commercial purposes.3 This high level of protection 
is  further  reinforced  by  the  EC  Marine  Strategy4  and  the  proposed  Marine 
Directive5  that  is  expected  to  strengthen  whales'  protection  in  the  EC  by 
fostering the overall objective of good environmental status of the EU oceans 
and seas. 

Therefore,  the  ultimate  objective  of  Community  environmental  policy  in 
relation  to  whales  is  to  seek  their  strictest  protection.  The  above  mentioned 
environmental  legislation  ensures  a  highest  level  of  protection  through 
extensive rules harmonisation.  

Furthermore, under the Common Fisheries Policy (CFP), the Community has 
exclusive competence for the conservation of biological resources of the sea6. 
In addition, cetaceans fall within the scope of Annex I to the EC Treaty and 
are subject to Articles 33 to 38 thereof7. Moreover, Council Regulation (EC) 

1 

2 
3 

4 

5 

6 

7 

Directive  92/43/EEC  on  the  conservation  of  natural  habitats  and  of  wild  fauna  and  flora,  OJ  L  206, 
22.7.1992, p. 7. 
OJ L 61, 3.3.1997, p. 1. 
In  addition,  Council  Regulation  (EEC)  348/81  on  common  rules  for  imports  of  whales  and  other 
cetacean products only allows imports of listed products if they are not used for commercial purposes. 
Communication from the Commission to the Council and the European Parliament: Thematic strategy 
on the protection and conservation of the Marine Environment COM(2005) 504 final. 
Proposal for a Directive of the European Parliament and of the Council establishing a Framework for 
Community Action in the field of Marine Environmental Policy COM(2005) 505 final. 
See  for  instance  Cases  C-141/78  [1979]  ECR  2923,  paragraph  6,  and  C-804/79,  [1981]  ECR  1045, 
paragraph 17. 
See Art. 32, paragraph 3 of the EC Treaty 

EN 

2 

   EN 

 
                                                 
2371/2002  on  the  conservation  and  sustainable  exploitation  of  fisheries 
resources  under  the  Common  Fisheries  Policy8  states  that  the  scope  of  the 
CFP extends to conservation, management and exploitation of living aquatic 
resources. On this basis, the Community has concluded fisheries agreements 
dealing,  partly  or  exclusively,  with  marine  mammals9.  Similarly,  cetaceans 
are  addressed  by  secondary  legislation  adopted  under  the  CFP,  aimed  to 
implement  international  commitments  undertaken  in  the  context  of  fisheries 
agreements and to address the protection of whales in the high seas10.  

EC  policy  on  whales  will  not  be  effective  within  Community  waters  if  it  is 
not  backed  by  coherent  worldwide  action.  .  In  the  context  of  the  integrated 
maritime policy for the EU, the Commission will work for the coordination of 
European interests' on international issues. 

The International Whaling Commission (IWC) is the competent international 
organisation  regarding  the  conservation  and  management  of  whale  stocks  at 
global  level  and  it  was  set  up  under  the  International  Convention  for  the 
Regulation of Whaling ('the Convention') signed in 1946. The purpose of the 
Convention is to "provide for the effective conservation and management of 
whale stocks, and thus make possible the orderly development of the whaling 
industry" (preamble of the Convention). Membership of the IWC is only open 
to  governments  that  adhere  to  the  Convention.  An  amendment  to  the 
Convention  allowing  the  EC  to  become  a  member  would  require  the 
ratification  of  a  protocol  by  all  IWC  members.  The  Commission  adopted  a 
proposal  in  199211  to  negotiate  the  accession  of  the  Community  to  the 
Convention  but  the  Council  has  not  given  any  follow  up  to  this  proposal. 
However, the Community has observer status thereto. 

Commercial  whaling  was  suspended  in  1986  as  a  result  of  a  moratorium 
agreed by the majority of countries represented in the IWC. Uncertainties in 
the scientific analyses concerning the status of various whale stocks were the 
main reasons for this pause in commercial whaling. Ever since, the main issue 
regularly discussed at IWC meetings is whether whale stocks have recovered 
enough to lift the ban on commercial whaling in a controlled fashion.  

The  dual  mandate  of  the  IWC  of  both  managing  whaling  and  conserving 
whales  has  led  to  extremely  polarised  positions  over  the  years  between 
leading  'pro-  whaling'  States  and  'anti-whaling'  ones.  Leading  pro-whaling 
States  (e.g.  Japan,  Iceland  and  Norway)  have  consistently  contested  the 

(6) 

(7) 

(8) 

(9) 

8 
9 

10 

11 

OJ L 358, 31.12.2002, p.59. 
See e.g. Council Decision 2005/938/EC on the approval on behalf of the European Community of the 
Agreement on the International Dolphin Conservation Programme, OJ L 348, 30.12.2005, p. 26. 
See e.g. Council Regulation (EC) 973/2001 laying down certain technical measures for the conservation 
of  certain  stocks  of  highly  migratory  species,  OJ  L  137,  19.5.2001,  p.  1;  Council  Regulation 
(EC)1936/2001  laying  down  control  measures  applicable  to  fishing  for  certain  stocks  of  highly 
migratory fish, OJ L 263, 3.10.2001, p. 1; Regulation 1967/2006 concerning management measures for 
the sustainable exploitation of fishery resources in the Mediterranean Sea, OJ L 36, 8.2.2007, p. 6. 
Draft  Council  Decision  authorizing  the  Commission  to  negotiate,  on  behalf  of  the  Community,  a 
protocol amending the international Convention on the regulation of whaling, Washington, 2 December 
1946 COM (92)316. 

EN 

3 

   EN 

 
                                                 
moratorium and still carry out whaling for what they call scientific purposes 
or other exceptions.  

(10)  The  general  ban  on  commercial  whaling  decided  within  the  IWC  is  in  line 
with  EC  policies,  as  defined  by  the  above-mentioned  legislation.  It  is 
important  that  the  IWC  ensures  the  continuation  of  the  moratorium  on  the 
basis  of  the  currently  available  scientific  information.  However,  in  virtually 
all  IWC  meetings  since  the  entry  into  force  of  the  ban,  Japan  has  proposed 
amendments  to  the  'Schedule'  to  the  Convention  to  authorise  whaling  under 
certain conditions and de facto lift the ban for certain stocks. Therefore, the 
20 EU Member States that are IWC members12 have to express at each IWC 
meeting  their  position  on  such  proposals  which  fall  within  Community 
competence. It is anticipated that this will happen again at 60th IWC Annual 
meeting in 2008 in Santiago (Chile) and at subsequent meetings. 

(11) 

In accordance with the principle of loyal cooperation reflected in Article 10 
of  the  EC  Treaty  and  with  the  principle  of  the  unity  in  the  external 
representation  of  the  Community,  it  is  essential  that  Member  States  prepare 
the next meetings of the IWC by reaching a common position in the Council. 
Such  position,  due  to  the  limitations  intrinsic  to  the  observer  status  of  the 
Community  should  be  expressed  by  the  Member  States  acting  jointly  in  the 
interest  of  the  Community  within  the  IWC.  It  is  also  essential  that  the 
remaining 7 Member States that are not yet Parties to the IWC accelerate their 
accession  procedure.  Only  acting  together  and  developing  a  Community 
position  the  EU  Member  States  would  stand  a  chance  to  ensure  the 
development  and  enforcement  of  an  adequate  and  strict  international 
regulatory framework for the protection of whales.  

(12)  To this end, the Commission is proposing a decision to the Council with three 
legal  bases:  Articles  37  (fisheries  policy)  and  175  (environment  policy)  and 
Article 300 (2) (2) for the purpose of establishing the position to be adopted 
on behalf of the Community in a body set up by an agreement when that body 
will adopt decisions with legal effects. 

(13)  The  proposed  Council  decision  has  a  twofold  component  as  the  expected 
proposals  for  amendments  to  the  Convention  would  fall  within  both 
environment and fisheries policy as neither of them can be identifiable as the 
main or predominant purpose, the other being merely incidental, secondary or 
indirect.  

(14)  Moreover,  IWC  decisions  to  amend  the  Schedule  to  the  Convention  have 
legal effects as they become effective within a prescribed period without the 
need  for  ratification13.  It  is  not  possible  for  the  Community  to  initiate  and 
complete its internal procedures to establish its position only after other IWC 
Members have tabled amendment proposals as these can come until 60 days 
before  the  next  IWC  meeting.  In  addition,  as  the  proposed  objective  of  the 

12 

13 

Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, 
Luxembourg, Netherlands, Portugal, Slovak Republic, Slovenia, Spain, Sweden, UK. 
See  Article  V  of  the  Convention.  Under  paragraph  3,  Parties  become  bound  by  amendments  to  the 
Schedule within ninety days unless they present an objection. 

EN 

4 

   EN 

 
                                                 
Community  is  to  oppose  initiatives  to  lift  the  moratorium  on  commercial 
whaling,  the  Council  can  already  establish  the  Community  position  for  the 
60th meeting of the IWC in 2008 and for future IWC meetings. 

(15)  Furthermore,  the  Community  should  also  support  amendments  to  the 
Schedule  aimed  at  setting  up  whale  sanctuaries  and  oppose  proposals  to 
amend  the  rules  of  procedure  of  the  IWC  to  broaden  the  scope  of  secret 
ballots, as this would be contrary to the objectives of the Aarhus Convention, 
to which the Community and its Member States are Parties, and particularly 
its Article 3(7).  

EN 

5 

   EN 

 
Proposal for a 

COUNCIL DECISION 

establishing the position to be adopted on behalf of the European Community with 
regard to proposals for amendments to the Schedule of the International Convention on 
the Regulation of Whaling  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty establishing the European Community, and in particular Articles 
37 and 175(1), in conjunction with the second subparagraph of Article 300(2) thereof, 

Having regard to the proposal from the Commission14, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

14 
15 
16 
17 

18 

Article  174.1  of  the  EC  Treaty  states  that  one  of  the  objectives  of  Community 
environment  policy  is  the  promotion  of  measures  at  international  level  to  deal  with 
regional or worldwide environmental problems. 

According to Directive 92/43/EEC on the conservation of natural habitats and of wild 
fauna  and  flora  (the  Habitats  Directive)15  all  cetacean  species  are  listed  in  its  Annex 
IV.  Therefore,  all  whale  species  are  strictly  protected  from  deliberate  disturbance, 
capture  or  killing  within  Community  waters.  The  same  Directive  also  prohibits  the 
keeping, transport and sale or exchange, of specimens taken from the wild. 

Council Regulation 338/97/EC on the protection of species of wild fauna and flora by 
regulating  trade  therein,16  implementing  the  provisions  of  the  Convention  on 
International  Trade  in  Endangered  Species  of  Wild  Fauna  and  Flora  (CITES)  in  the 
EC, bans the introduction of cetaceans into the Community for primarily commercial 
purposes17. 

Under the Common Fisheries Policy (CFP), the Community has exclusive competence 
for the conservation of biological resources of the sea18. 

EC policy on whales will not be effective within Community waters if it is not backed 
by coherent worldwide action. 

OJ C , , p. . 
OJ L 206, 22.7.1992, p. 7. 
OJ L 61, 3.3.1997, p. 1. 
In  addition,  Council  Regulation  (EEC)  348/81  on  common  rules  for  imports  of  whales  and  other 
cetacean products only allows imports of listed products if they are not used for commercial purposes. 
See  for  instance  Cases  C-141/78  [1979]  ECR  2923,  paragraph  6,  and  C-804/79,  [1981]  ECR  1045, 
paragraph 17. 

EN 

6 

   EN 

 
                                                 
(6) 

(7) 

(8) 

(9) 

The  International  Whaling  Commission  (IWC)  is  the  competent  international 
organisation  regarding  the  conservation  and  management  of  whale  stocks  at  global 
level and was set up under the International Convention for the Regulation of Whaling 
(the Convention) signed in 1946. The purpose of the Convention is to "provide for the 
effective  conservation  and  management  of  whale  stocks  and  thus  make  possible  the 
orderly development of the whaling industry". Membership of the IWC is only open to 
governments.20  Member  States  of  the  European  Union  are  parties  to  the  IWC19.The 
European Community has only observer status at the IWC and it is represented by the 
Commission. 

Commercial whaling was suspended in 1986 as a result of a moratorium agreed by the 
majority  of  countries  represented  in  the  IWC.  Leading  pro-whaling  States  have 
consistently  contested  the  moratorium  and  still  carry  out  whaling  for  what  they  call 
scientific purposes or under other exceptions.  

The  IWC  works  on  the  basis  of  a  Schedule  that  governs  the  conduct  of  whaling 
throughout the world. The Schedule is annexed to the Convention and is defined as an 
integral  part  of  it.  It  is  binding  on  Parties  and  provides  detailed  whaling  regulations 
with respect to the conservation and utilization of whale resources. 

Proposals for decisions to amend the Schedule adopted within the IWC may have legal 
effects  and  affect  the  achievement  of  the  objectives  of  Community  policies  and 
legislation  in  relation  to  cetaceans.  Some  of  the  proposals  regularly  put  forward  for 
decision at each meeting of the IWC aim at authorising whaling activities, through the 
establishment of quotas and the application of management measures, or at the setting 
up of whale sanctuaries, and require the establishment of a Community position.  

(10)  Member States have a duty of loyal cooperation under Article 10 of the EC Treaty and 
cannot  take  on  obligations  outside  the  framework  of  Community  legislation  which 
might affect Community rules or alter their scope. 

(11)  The Community being an observer, the Community position should be decided by the 
Council  and  expressed  by  the  Member  States  acting  jointly  in  the  interest  of  the 
Community.  

(12)  At the 60th meeting of the IWC in 2008 and at future IWC meetings, the Community 
and the Member States should cooperate closely to ensure that any amendments to the 
Convention and its Schedule are consistent with the objectives of Community policies 
and legislation on whales. 

HAS DECIDED AS FOLLOWS: 

Article 1 

The  position  of  the  Community  at  the  60th  meeting  of  the  IWC  in  2008  and  at  future  IWC 
meetings shall be in accordance with the Annex to this Decision and shall be expressed by the 
Member States acting jointly in the interest of the Community. 

19 

Austria, Belgium, Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Ireland, Italy, 
Luxembourg, Netherlands, Portugal, Slovak Republic, Slovenia, Spain, Sweden, UK. 

EN 

7 

   EN 

 
                                                 
Article 2 

Where  the  position  referred  to  in  Article  1  is  likely  to  be  affected  by  new  scientific  or 
technical information presented before or during the meetings of the IWC or where proposals 
are  made  on  the  spot  on  matters  which  are  not  yet  the  subject  of  a  Community  position,  a 
position  shall  be  established  on  the  proposal  concerned  through  co-ordination,  including  on 
the spot, before the proposal is put to a vote. 

Done at  

For the Council 
The President 

EN 

8 

   EN 

 
 
 
 
 
ANNEX  

(1) 

(2) 

The  overarching  objective  of  the  European  Community  in  relation  to  the  IWC  is  to 
ensure an effective international regulatory framework for the protection of whales.  

Subject  to  any  future  review  having  regard  to  relevant  developments,  the  Member 
States acting jointly in the interest of the Community shall take the following position 
on proposals for decisions by the IWC: 

(a) 

(b) 

(c) 

(d) 

(e) 

(f) 

(g) 

(h) 

Oppose  any  proposal  to  amend  the  Schedule  having  the  effect  of  a  total  or 
partial lifting of the moratorium on commercial whaling;  

Support proposals to amend the Schedule for the creation of whale sanctuaries;  

Support  proposals  for  the  continuation  of  aboriginal  subsistence  whaling,  on 
the condition that the conservation of the relevant stocks is not compromised, 
having  due  regard  to  the  principle  of  precaution  and  to  the  advice  by  the 
Scientific Committee; 

Support  proposals  aimed  to  address  comprehensively  all  whaling  activities 
carried  out  under  the  different  legal  headings  of  the  Convention,  including 
scientific whaling. 

Support proposals which are coherent with the Community position adopted in 
relation  to  the  Convention  on  International  Trade  on  Endangered  Species 
(CITES) and other international agreements to which the EC is a Party;  

Support proposals to continue the activities of the Conservation Committee and 
proposals to address the conservation concerns on small cetaceans;  

Support  proposals  to  encourage  collection  of  scientific  data  using  non 
destructive methods and research on conservation of whale populations; 

Oppose any proposals to amend the rules of procedure of the IWC to broaden 
the scope of secret ballot.  

EN 

9 

   EN