Recommendation from the Commission to the Council in order to authorise the Commission to conduct negotiations for the elaboration of an international legally-binding instrument on port state measures to prevent, deter and eliminate illegal, unreported and unregulated fishing
Date: 2008-05-28
Institutions: European Commission
Subjects: EU Member State, application of EU law, committee (EU), fishing controls, fishing port, fishing regulations, international law, international negotiations

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 28.5.2008 
COM(2008) 333 final 

RECOMMENDATION FROM THE COMMISSION TO THE COUNCIL 

in order to authorise the Commission to conduct negotiations for the elaboration of an 
international legally-binding instrument on port State measures to prevent, deter and 
eliminate illegal, unreported and unregulated fishing 

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I. 

EXPLANATORY MEMORANDUM 

At the latest meeting of the FAO Committee for Fisheries, it was agreed that an international 
legally binding instrument on Port State measures to prevent, deter and eliminate IUU fishing 
should  be  elaborated  in  view  of  its  presentation  at  the  28th  session  of  the  FAO  COFI  in 
February 20091 

An expert consultation on this issue took place in Washington in September 2007.  

A technical consultation, open to all FAO Parties, will aim at finalizing the draft international 
instrument on Port State measures during a session to be held from 23 to 27 June 2008.  

Port  State  measures  have  been  identified  as  a  key  tool  in  the  fight  of  the  international 
community  against  IUU  fishing.  This  resulted  in  particular  in  the  adoption  in  2005  by  the 
FAO  of  the  Model  Scheme  on  Port  State  Measures  to  Combat  IUU  Fishing.  This  Model 
Scheme provides for minimum standards which should underpin the adoption of measures by 
States in order to monitor, control and inspect foreign-flagged fishing vessels wishing to use 
their harbours. It is a voluntary and non-binding instrument. 

In  addition,  some  Regional  Fisheries  Management  Organisations  have  put  in  place  binding 
Port  State  mechanisms  which  shall  be  applied  by  Parties  to  these  Organisations  in  order  to 
monitor the legality of landing, transhipment and other operations in their ports. Specific rules 
have  also  been  enacted  in  some  Regional  Fisheries  Management  Organisations  (RFMOs) 
aiming  to  deny  port  access  to  vessels  listed  by  the  organisation  as  having  engaged  or 
supported IUU fishing activities.  

The  Community  is  a  member  of  the  FAO  as  well  as  of  13  RFMOs.  Port  State  mechanisms 
adopted  within  RFMOs  have  been  implemented  into  Community  law.  Community  law  also 
provides  for  general  rules  applying  to  the  landing  of  fisheries  products  by  third  country 
vessels in Community ports.  

The  fight  against  IUU  fishing  constitutes  an  essential  component  of  the  Common  Fisheries 
Policy and the Community should be able to foster international cooperation on this matter by 
participating actively and constructively in the negotiations on an international instrument on 
Port State measures. 

In addition to the above considerations, the following should be noted: 

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Cf. para 68 of the Report of the twenty-seventh session of the FAO Committee on Fisheries (Rome, 5-9 
March  2007)  "Acknowledging  the  urgent  need  for  a  comprehensive  suite  of  port  State  Measures,  the 
Committee took note of the strong support for the Norwegian proposal to develop a new legally binding 
instrument based on the Model Scheme on Port State Measures to Combat IUU Fishing and the IPOA-
IUU. The Committee endorsed the following timetable: an Expert Consultation to be convened during 
the  latter  half  of  2007  to  prepare  a  draft  agreement  and  a  Technical  Consultation  to  finalize  the 
instrument's text during the first half of 2007 to prepare a draft agreement and a Technical Consultation 
to finalize the instrument's text during the first half of 2008 and present it to the twenty-eighth COFI 
Session in 2009. Many Members stressed that the new instrument would represent minimum standards 
for port States, with flexibility to adopt more stringent measures and some Members also stressed that it 
should not detract from other previously agreed measures such as the need for capacity reduction." 

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–  in line with settled case law of the ECJ (based on Kramer et al and consistently confirmed 
thereafter) the EC has exclusive external competence in matters of fisheries for the purpose 
of conservation of the biological resources of the sea; 

–  the  Commission  has  adopted  on  17  October  2007  the  proposed  Regulation  on  IUU 

Fisheries; 

–  the EC's declaration of competence made upon accession to the FAO provides in point I b) 
that  the  EC  has  exclusive  competence  for  matters  of  fisheries  for  the  purpose  of  the 
conservation of the biological resources of the sea; 

–  Point 2.1 of the inter-institutional arrangement Council/Commission made upon accession 
of the EC to the FAO provides that the Commission intervenes and votes on behalf of the 
EC for issues arising under exclusive EC competence; 

–  In  Case  C-25/94  regarding  the  FAO  Compliance  Agreement  the  ECJ  has  held  that  this 
arrangement  Council/Commission  also  applies  when  FAO  organs  are  conducting 
negotiations for an FAO convention.  

II. 

RECOMMENDATION 

In the light of the above, the Commission recommends: 

– 

– 

that  the  Council  authorise  the  Commission  to  negotiate  with  other  interested 
parties  with  a  view  to  the  elaboration  of  an  international  legally-binding 
instrument  on  port  State  measures  to  prevent,  deter  and  eliminate  illegal, 
unreported and unregulated fishing; 

that,  since  in  accordance  with  the  Treaty,  the  commission  will  conduct  these 
negotiations  on  behalf  of  the  European  Community,  the  Council  appoint  a 
special committee to assist it in this task ; and 

– 

that the Council issue the appended negotiating directives. 

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ANNEX 

Negotiating Directives 

The Commission shall conduct negotiations on behalf of the Community with a view to the 
elaboration of an international legally binding instrument on Port State measures which shall 
be geared towards preventing, deterring and eliminating IUU fishing.  

The Commission shall make sure that the text of the agreement is consistent with international 
law, and in particular with the provisions of the UN Convention on Law of the Sea, the UN 
Agreement  relating  to  the  Conservation  and  Management  of  Straddling  Fish  Stocks  and 
Highly  Migratory  Fish  Stocks  and  the  Agreement  to  promote  compliance  with  international 
conservation and management measures by fishing vessels on the high seas. 

The Commission shall also act in accordance with the objectives pursued by the Community 
within the framework of the Common Fisheries Policy and, insofar as the agreement affects 
developing countries, take into account the orientations defined in the context of the "Policy 
coherence for development" process. 

The Commission shall support the establishment of an instrument which binds its Parties to 
enact measures: 

- to deter vessels engaged in or supporting IUU fishing activities from using their ports; 

- to inspect vessels present in their ports and presumed to have engaged in or supported such 
activities; 

- to ensure a proper follow up of inspections and adopt appropriate measures, in accordance 
with international law, towards vessels for which it can be established that they were engaged 
in or have supported IUU fishing activities. 

The  Commission  shall  promote  the  insertion  of  the  agreement  into  an  integrated  approach 
designed  to  deter,  prevent  and  eliminate  IUU  fishing,  based  notably  on  international 
cooperation and monitoring and control measures applying to the whole chain of fishing and 
related activities ("from the net to the plate"). 

The  Commission  shall  make  sure  that  the  agreement  is  effectively  designed  to  target  IUU 
fishing  activities  without  discriminating  against  vessels  which  operate  in  compliance  with 
applicable laws, regulations or conservation and management measures. 

The  Commission  shall  support  the  position  that  the  provisions  of  the  agreement  shall  be 
constitutive  of  minimum  standards  which  do  not  prevent  its  Parties  from  enacting,  as  Port 
States and in accordance with international law, more stringent measures against IUU fishing.  

The Commission shall ensure that the agreement contains appropriate provisions enabling the 
Community to become a Party thereto. 

The  Commission  shall  report  to  the  Council  on  the  outcome  of  the  negotiations  and,  where 
appropriate, on any problem that may arise during the negotiations. 

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