Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 1300/2008 of 18 December 2008 establishing a multi-annual plan for the stock of herring distributed to the west of Scotland and the fisheries exploiting that stock
Date: 2011-11-22
Institutions: European Commission
Subjects: Atlantic Ocean, Scotland, authorised catch, catch quota, fishing rights, sea fish

EUROPEAN COMMISSION 

Brussels, 22.11.2011 
COM(2011) 760 final 

2011/0345 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 1300/2008 of 18 December 2008 establishing a 
multi-annual plan for the stock of herring distributed to the west of Scotland and the 
fisheries exploiting that stock 

 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The  objective  of  this  proposal  is  to  amend  Council  Regulation  (EC)  No  1300/2008  of  18 
December  2008  establishing  a  multi-annual  plan  for  the  stock  of  herring  distributed  to  the 
west  of  Scotland  and  the  fisheries  exploiting  that  stock  ("the  Plan").  This  act  was  adopted 
prior to the entry into force of the Treaty on the Functioning of the European Union (TFEU).  

The Plan has as its core objective to ensure the exploitation of the herring stock in the area 
west  of  Scotland  on  the  basis  of  maximum  sustainable  yield  (Article  3(1)).  To  attain  it,  the 
Plan lays down rules for the establishment of the annual fishing opportunities for this stock in 
terms  of  total  allowable  catch.  Such  rules  use  certain  technical  parameters,  by  reference  to 
which  the  stock  can  be  considered  to  be  in  better  or  worse  conservation  status,  therefore 
closer to or further away from the Plan's objective. These parameters are science-based, not a 
policy choice. Science may evolve and improve, and the Plan needs to contain the necessary 
provisions to ensure it is kept up to date with the best science available. 

Thus, Article 7 of the  Regulation  stipulates that if it appears that the fishing mortality  rates 
and associated spawning stock biomass levels used for the purposes of the Plan are no longer 
appropriate  in  light  of  scientific  advice,  the  Council  must  revise  such  parameters  so  as  to 
ensure that the plan can attain its management objectives. The current text therefore confers 
the power to amend these non-essential elements of the Plan on the Council. Such decision-
making procedure is no longer possible under the TFEU. 

Similarly, Article 8 provides for modification by the Council of certain elements of the plan 
(including  the  biological  reference  levels  set  out  in  Article  3(2)  and  further  mentioned  in 
Articles  4(2)  to  4(5)  and  9)  and  for  adoption  by  the  Council  of  measures  alternative  or 
additional  to  the  plan.  Article  1  currently  indicates  the  area  of  application  of  the  plan.  It  is 
appropriate to delete the reference to the geographical area of application of the plan, which 
should become part of the definition of the stock. This is because, when setting annual TACs 
or  regulating  the  long-term  exploitation  via  the  plan,  both  the  TACs  and  the  plan  should 
follow the stock's biology, and not the other way around. The contrary would lead to illogical 
results:  if,  for  example,  the  stock's  biological  behaviour  changed  and  it  migrated  on  a 
permanent  basis  somewhere  else,  the  plan  and  the  TACs  would  be  applying  to  an  area 
"empty" of herring.  

Article 290 of the TFEU provides that a legislative act may delegate to the Commission the 
power  to  adopt  non-legislative  acts  of  general  application  to  supplement  or  amend  certain 
non-essential  elements  of  the  legislative  act.  By  way  of  consequence,  the  decision-making 
procedure foreseen in Article 7 and 8 of the Regulation should be converted into a system of 
delegated powers to be exercised by the Commission under the conditions set out in the Plan 
itself  and  where  the  analysis  has  shown  that  the  currently  envisaged  procedures  may  be 
qualified as delegated powers in accordance with Article 290 of the TFEU. The Plan should 
therefore be amended accordingly.  

This amendment is limited to changes enabling this plan to work efficiently within the new 
decisional framework set up by the Lisbon Treaty.  

EN 

1 

   EN 

 
2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Not applicable. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

• Summary of the proposed action 

Identify  the  powers  to  be  delegated  to  the  Commission  in  Council  Regulation  (EC)  No 
1300/2008  and  establish  the  corresponding  procedure  for  adoption  of  these  acts  and  adapt 
certain provisions to the decision-making procedures of the Lisbon Treaty. 

• Legal basis 

Article 43(2) of the Treaty on the Functioning of the European Union. 

• Subsidiarity principle 

The proposal falls under exclusive competence of the European Union. 

• Proportionality principle 

The  proposal  is  amending  measures  which  already  exist  in  Council  Regulation  (EC)  No 
1300/2008, therefore no concern on the principle of proportionality arises. 

• Choice of instrument 

Proposed instrument: Regulation of the European Parliament and of the Council. 

Other means would not be adequate for the following reason: a Regulation must be amended 
by a Regulation. 

The proposal modifies Articles 1, 2, 7 and 8 of the Plan to grant the delegation of powers to 
the Commission, and introduces a new Article 9a stipulating the conditions under which this 
delegation  is  granted.  The  drafting  follows  the  standard  clauses  attached  to  the  "Common 
Understanding"  on  delegated  acts  between  the  European  Parliament,  the  Council  and  the 
Commission. No urgency procedure is required. 

EN 

2 

   EN 

 
2011/0345 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 1300/2008 of 18 December 2008 establishing a 
multi-annual plan for the stock of herring distributed to the west of Scotland and the 
fisheries exploiting that stock 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 43(2) thereof, 

Having regard to the proposal from the European Commission, 

Having regard to the opinion of the European Economic and Social Committee1,  

After transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Council Regulation (EC) No 1300/2008 establishing a multi-annual plan for the stock 
of  herring  distributed  to  the  West  of  Scotland  and  the  fisheries  exploiting  that  stock 
empowers  the  Council  to  follow-up  and  revise  the  maximum  fishing  mortality  rates 
and associated spawning stock biomass levels specified in Article 3(2) and referred to 
in Articles 4(2), 4(5) and 9 thereof. 

In accordance with Article 290 of the Treaty the Commission may be empowered to 
supplement or amend non-essential elements of a legislative act by means of delegated 
acts.  

In order to allow for an efficient achievement of the targets set in the multi-annual plan 
and for a swift reaction to changes in stock conditions, the power to revise maximum 
fishing mortality rates and associated spawning stock biomass levels, when scientific 
data indicate that these values are no longer appropriate to reach the objective of the 
plan,  should  be  delegated  to  the  Commission  in  accordance  with  Article  290  of  the 
Treaty. 

(4) 

Since  herring  in  the  west  of  Scotland  is  a  migrating  species,  the  specification  of  the 
area it currently inhabits should serve to identify it from other stocks, but should not 

1 

EN 

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prevent  this  plan  for  applying  in  the  event  that  the  species  changes  its  mobility 
patterns. Articles 1 and 2 should be modified accordingly. 

(5) 

(6) 

(7) 

It is of particular importance that the Commission carry out appropriate consultations 
during its preparatory work, including at expert level. 

The  Commission,  when  preparing  and  drawing  up  delegated  acts,  should  ensure  a 
simultaneous,  timely  and  appropriate  transmission  of  relevant  documents  to  the 
European Parliament and Council. 

At  the  occasion  of  this  amendment,  a  mistake  in  the  heading  of  Article  7  should  be 
corrected. 

(8) 

Regulation (EC) No 1300/2008 should therefore be amended accordingly,  

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 1300/2008 is amended as follows: 

(1) 

Article 1 is replaced by the following: 

"Article 1 
Subject matter 

"This  Regulation  establishes  a  multi-annual  plan  for  the  fisheries  exploiting  the  stock  of 
herring in the West of Scotland." 

(2) 

[In Article 2 the following pont (e) is added: 

"(e) "stock of herring in the West of Scotland" means the stock of herring (clupea harengus) 
which inhabits Union and international waters of ICES divisions Vb, VIa and VIb." 

(3) 

Article 7 is replaced by the following: 

"Article 7 

Revision of maximum fishing mortality rates and associated spawning stock biomass levels 

Where  scientific  data  indicates  that  the  values  for  the  fishing  mortality  rates  and  associated 
spawning stock biomass levels specified in Article 3(2), Article 4(2) to 4(5) and Article 9 are 
no longer appropriate to reach the objective set forth in Article 3(1), the Commission shall fix 
new  values  for  such  rates  and  levels  by  means  of  delegated  acts  in  accordance  with  Article 
9a." 

(4) 

Article 8 is replaced by the following: 

EN 

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   EN 

 
 
"Article 8 

Evaluation and review of the multi-annual plan 

"Every four years from 18 December 2008, the Commission shall evaluate the operation and 
performance  of  the  multi-annual  plan.  Where  appropriate,  the  Commission  may  propose 
adaptations to the multi-annual plan or adopt delegated acts in accordance with Article 7." 

(5) 

The following Article 9a is inserted: 

"Article 9a 

Exercise of the delegation 

"1.  The  power  to  adopt  delegated  acts  is  conferred  on  the  Commission  subject  to  the 
conditions laid down in this Article. 

2.  The  delegation  of  power  referred  to  in  Article  7  and  8  shall  be  conferred  for  an 
indeterminate  period  of  time  from  [dd/mm/yyyy]  [insert  date  of  entry  into  force  of  this 
regulation]. 

3. The delegation of power referred to in Articles 7 and 8 may be revoked at any time by the 
European  Parliament  or  by  the  Council.  A  decision  of  revocation  shall  put  an  end  to  the 
delegation  of  the  power  specified  in  that  decision.  It  shall  take  effect  the  day  following  the 
publication  of  the  decision  in  the  Official  Journal  of  the  European  Union  or  a  later  date 
specified therein. It shall not affect the validity of any delegated acts already in force. 

4. As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the 
European Parliament and to the Council. 

5.  A  delegated  act  adopted  pursuant  to  Articles  7  and  8  shall  enter  into  force  only  if  no 
objection  has  been  expressed  either  by  the  European  Parliament  or  the  Council  within  a 
period of 2 months of notification of that act to the European Parliament and the Council or if, 
before the expiry of that period, the European Parliament and the Council have both informed 
the Commission that they will not object. That period shall be extended by 2 months  at the 
initiative of the European Parliament or the Council. 

Article 2 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

EN 

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