Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 850/98 concerning the conservation of fishery resources through technical measures for the protection of juveniles of marine organisms
Date: 2012-08-02
Institutions: European Commission
Subjects: catch area, catch quota, conservation of fish stocks, fishing fleet, fishing licence, fishing rights

EUROPEAN COMMISSION 

Brussels, 2.8.2012  
COM(2012) 432 final 

2012/0208 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 850/98 concerning the conservation of fishery 
resources through technical measures for the protection of juveniles of marine 
organisms 

EN 

   EN 

 
 
 
  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

The Treaty on the Functioning of the European Union (TFEU) makes a distinction between 
the powers delegated to the Commission to adopt non-legislative acts of general application to 
supplement  or  amend  certain  non-essential  elements  of  the  legislative  act  as  laid  down  in 
Article 290(1) of the TFEU (delegated acts), and the powers conferred upon the Commission 
to  adopt  uniform  conditions  for  implementing  legally  binding  Union  acts  as  laid  down  in 
Article 291(2) of the TFEU (implementing acts). 

In  relation  to  the  adoption  of  Regulation  (EU)  No  182/2011,  the  Commission  made  the 
following statement: 

"The Commission will proceed to an examination of all legislative acts in force which were 
not adapted to the regulatory procedure with scrutiny before the entry into force of the Lisbon 
Treaty, in order to assess if those instruments need to be adapted to the regime of delegated 
acts introduced by Article 290 of the Treaty on the Functioning of the European Union. The 
Commission  will  make  the  appropriate  proposals  as  soon  as  possible  and  no  later  than  the 
dates mentioned in the indicative calendar annexed to this declaration."1 

In  this  context  Regulation  (EC)  No  850/98  needs  to  be  aligned  with  the  new  rules  of  the 
TFEU.  Powers  currently  conferred  upon  the  Commission  by  that  Regulation  should  be 
reclassified into delegated and implementing powers. 

The  Commission  should  therefore  be  empowered  to  adopt  delegated  acts  concerning  the 
division  of  regions  into  geographical  areas,  to  amend  the  rules  for  the  use  of  mesh  size 
combinations  and  to  establish  rules  for  obtaining  the  percentage  of  target  species  taken  by 
more than one fishing vessel in order to ensure that such catch compositions are respected by 
all  the  vessels  involved  in  the  fishing  operation.  Similarly,  the  Commission  should  be 
empowered  to  draw  up  rules  concerning  the  technical  descriptions  and  method  of  use  of 
authorised  devices  that  might  be  attached  to  the  fishing  net,  and  which  do  not  obstruct  or 
diminish the effective mesh opening of the net. The Commission should also be empowered 
to adopt measures on conditions under which certain vessels shall be permitted to use beam 
trawls, the method for measuring engine power and gear dimensions and measures designed 
to address changes in the conservation status of fish stocks with immediate effect. 

Likewise  the  Commission  should  be  empowered  to  adopt  implementing  acts  concerning 
technical  rules  for  measuring  mesh  sizes,  square-meshed  netting  and  twine  thickness, 
technical  rules  related  to  the  construction  of  netting  materials,  listing  of  devices  that  may 
obstruct or otherwise diminish the effective mesh opening in a fishing net, the transmission of 
lists of vessels to which a special fishing permit to use beam trawls has been issued, technical 
rules  related  to  measuring  engine  power  and  gear  dimensions,  measures  concerning  the 
obligation  of  Member  States  to  ensure  that  levels  of  fishing  effort  are  not  exceeded  and 
temporary  measures  where  the  conservation  of  stocks  of  marine  organisms  calls  for 
immediate action.  

1 

OJ L 55, 28.02.2011, p.19 

EN 

2 

   EN 

                                                 
2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

There was no need for consultation of interested parties or for impact assessment. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

•  Summary of the proposed action 

•  The  main  action  is  to  identify  the  powers  conferred  upon  the  Commission  in  Council 
Regulation (EC) No 850/98 and to classify these as delegated or implementing powers.  

•  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  Regulation  (EC)  No  850/98, 
therefore no concern on the proportionality principle 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. 

4. 

BUDGETARY IMPLICATION 

This measure does not involve any additional Union expenditure. 

EN 

3 

   EN 

2012/0208 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 850/98 concerning the conservation of fishery 
resources through technical measures for the protection of juveniles of marine 
organisms 

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, 

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

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

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

Council Regulation (EC) No 850/982 confers powers upon the Commission in order to 
implement some of the provisions of that Regulation. 

As  a  consequence  of  the  entry  into  force  of  the  Lisbon  Treaty,  certain  powers 
conferred under Regulation (EC) No 850/98 need to be aligned with Articles 290 and 
291 of the Treaty on the Functioning of the European Union. 

In order to apply certain provisions of Regulation (EC) No 850/98, the power to adopt 
acts in accordance with Article 290 of the Treaty on the Functioning of the European 
Union should be delegated to the Commission in respect of the following:  

– 

– 

– 

the division of regions into geographical areas; 

to  amend  rules  concerning  the  conditions  for  the  use  of  certain  mesh  size 
combinations;  

to adopt detailed rules for obtaining the percentage of target species taken by 
more  than  one  fishing  vessel,  in  order  to  ensure  that  such  percentages  are 
respected by all the vessels involved in the fishing operation;  

2 

OJ L 125, 27.4.98, p. 1 

EN 

4 

   EN 

                                                 
– 

– 

– 

to  adopt  rules  concerning  the  technical  descriptions  and  method  of  use  of 
authorised devices that might be attached to the fishing net, and which do not 
obstruct or diminish the effective mesh opening of the net;  

conditions under which vessels exceeding eight meters length overall shall be 
permitted to use beam trawls within certain waters of the Union;  

measures  designed  to  address  unexpectedly  small  or  large  recruitments  of 
juveniles,  changes  in  migration  patterns  or  any  other  changes  in  the 
conservation status of fish stocks, with immediate effect. 

(4) 

(5) 

(6) 

It is of particular importance that the Commission carry out appropriate consultations 
during  its  preparatory  work  for  the  adoption  of  delegated  acts,  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 to the Council. 

In  order  to  ensure  uniform  conditions  for  the  implementation  of  the  provisions  of 
Regulation  (EC)  No  850/98  implementing  powers  should  be  conferred  upon  the 
Commission concerning the following: 

– 

– 

– 

– 

– 

– 

– 

– 

technical rules for measuring mesh sizes; 

square-meshed netting and twine thickness; 

technical rules related to the construction of netting materials; 

listing  of  devices  that  may  obstruct  or  otherwise  diminish  the  effective  mesh 
opening in a fishing net; 

transmission  of  lists  of  vessels  to  which  a  special  fishing  permit  to  use  beam 
trawls has been issued; 

technical rules related to measuring engine power and gear dimensions;  

the obligation of Member States to ensure that levels of fishing effort are not 
exceeded in certain areas of ICES Division IXa, and 

temporary  measures  where  the  conservation  of  stocks  of  marine  organisms 
calls for immediate action. 

(7) 

The  implementing  powers  conferred  upon  the  Commission,  except  those  concerning 
the obligation of Member States to ensure that levels of fishing effort are not exceeded 
in  certain  areas  of  ICES  Division  IXa,  should  be  exercised  in  accordance  with 
Regulation  (EU)  No  182/2011  of  the  European  Parliament  and  of  the  Council  of  16 
February  2011  laying  down  the  rules  and  general  principles  concerning  mechanisms 
for control by Member States of the Commission's exercise of implementing powers3. 

3 

OJ L 55, 28.2.2011, p.13 

EN 

5 

   EN 

                                                 
(8) 

Regulation (EC) No 850/98 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 850/98 is amended as follows: 

(1) 

In Article 2, paragraph 3 is replaced by the following:  

"3. 
The  regions  referred  to  in  paragraph  1  may  be  divided  into  geographical  areas,  in 
particular on the basis of the definitions referred to in paragraph 2. The Commission shall be 
empowered to adopt delegated acts in accordance with Article 48a concerning the division of 
regions  into  geographical  areas  for  the  purpose  of  identifying  geographical  areas  where 
specific technical conservation measures apply." 

(2) 

Article 4 is amended as follows: 

(a) 

In paragraph 4, the following point (c) is added: 

"(c) 
The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 48a to amend Annex X and Annex XI, in order to increase the protection of juvenile 
fish in the context of the conservation of fish stocks." 

(b) 

In paragraph 5, point (b) is replaced by the following: 

"(b)  The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article 48a concerning the method of calculation of the percentages of target species and of 
other  species  retained  on  board  when  these  have  been  taken  by  a  net  or  nets  towed 
simultaneously by more than one fishing vessel, and the method of verification for ensuring 
that any fishing vessels involved in the joint fishing operation that retain fish on board comply 
with the percentages of species as set out in Annexes I to V." 

(c) 

Paragraph 6 is replaced by the following: 

"6. 
Technical  rules  for  measuring  mesh  sizes,  including  for  control  purposes,  shall  be 
determined  by  means  of  implementing  acts.  Those  implementing  acts  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 48(2)."  

(3) 

In Article 7 the following paragraph 8 is added:  

"8. 
Technical rules for measuring square-meshed netting, including for control purposes, 
shall  be  determined  by  means  of  implementing  acts.  Those  implementing  acts  shall  be 
adopted in accordance with the examination procedure referred to in Article 48(2)."  

(4) 

In Article 8 the following paragraph 4 is added: 

"4. 
Technical rules concerning the measuring  of twine thickness  and the construction of 
netting  material,  including  for  control  purposes,  shall  be  determined  by  means  of 
implementing  acts.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 48(2)."  

EN 

6 

   EN 

(5) 

Article 16 is replaced by the following: 

"Article 16 

No device shall be used by means of which the mesh in any part of the fishing net is 

1. 
obstructed or otherwise effectively diminished. 

2. 
Paragraph  1  shall  not  exclude  the  use  of  certain  devices  which  may  obstruct  or 
otherwise effectively diminish the mesh in any part of the fishing net but which may serve to 
protect or strengthen the net. The Commission shall be empowered to adopt delegated acts in 
accordance with Article 48a concerning the technical descriptions and the method of use and 
attachment of such devices.  

3 
An exhaustive list of devices  that comply with the  technical  descriptions  established 
according to paragraph 2, and which may be attached to the fishing net, shall be determined 
by  implementing  acts.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 48(2)."  

(6) 

Article 29 is amended as follows: 

(a) Paragraph 6 is replaced by the following:  

"6. 
The  Commission  shall  be  empowered  to  adopt  delegated  acts  in  accordance  with 
Article  48a  concerning  detailed  conditions  for  the  application  of  the  criteria  set  out  in 
paragraph 2 under which vessels exceeding eight meters length overall shall be permitted to 
use beam trawls in the areas set out in paragraph 1." 

(b) the following paragraph 7 is added: 

"7. 
The  Commission  shall  establish  the  operational  requirements  for  transmission  of  the 
lists to be provided to the Commission by Member States as referred to in paragraph 2(c), first 
indent,  by  means  of  an  implementing  act.  Those  implementing  acts  shall  be  adopted  in 
accordance with the examination procedure referred to in Article 48(2)." 

(7) 

In Article 29b, paragraph 6 is replaced by the following: 

"6.  Member  States  shall  communicate  to  the  Commission  their  measures  to  fulfil  the 
obligation laid down in paragraph 5. If the Commission finds that the measures of a Member 
State do not fulfil that obligation, it may propose amendments to those measures. Where no 
agreement  on  the  necessary  measures  is  reached  between  the  Commission  and  the  Member 
State  concerned,  the  Commission  may  establish  such  measures  by  means  of  implementing 
acts." 

(8) 

In Article 34, paragraph 6 is replaced by the following:  

Technical rules for measuring engine power and gear dimensions shall be determined 
"6. 
by  means  of  an  implementing  act.  Those  implementing  acts  shall  be  adopted  in  accordance 
with the examination procedure referred to in Article 48(2)." 

(9) 

Article 45 is replaced by the following:  

EN 

7 

   EN 

"Article 45 

1. 
The Commission shall be empowered to establish, by means of delegated acts adopted 
in accordance with Article 48a, technical conservation measures on the use of towed or fixed 
gear or on fishing activities in certain areas or during certain periods in addition to or by way 
of derogation to this Regulation. Those measures  shall be  designed to address  unexpectedly 
small or large recruitments of juveniles, changes in migration patterns or any other changes in 
the conservation status of fish stocks, with immediate effect. 

Where the conservation of stocks of marine organisms calls for immediate action, the 
2. 
Commission  may  decide  on  temporary  measures  by  means  of  implementing  acts  to  remedy 
the situation. Those implementing acts shall be adopted in accordance with the examination 
procedure referred to in Article 48(3).  

3. 
Where the conservation of certain species or fishing grounds  is seriously threatened, 
and  where  any  delay  would  result  in  damage  which  would  be  difficult  to  repair,  a  Member 
State may take appropriate non-discriminatory conservation measures in respect of the waters 
under its jurisdiction.  

4. 
The measures referred to in paragraph 3, together with an explanatory memorandum, 
shall be communicated to the Commission and the other Member States as soon as they are 
adopted.  

Within ten working days of receipt of such communication, the Commission shall confirm the 
appropriateness and non-discriminatory nature of such measures, or require their cancellation 
or  amendment  by  means  of  implementing  acts.  The  Commission's  decision  shall  be 
immediately notified to the Member States."  

(10) 

In Article 46, paragraph 4 is replaced by the following:  

"4. At the initiative of the Commission, or at the request of any Member State, the question of 
whether a national technical measure applied by a Member State complies with paragraph 1 
of  this  Article  may  be  the  subject  of  a  decision  taken  by  the  Commission  by  means  of 
implementing  acts.  Those  implementing  acts  shall  be  adopted  in  accordance  with  the 
examination procedure referred to in Article 48(2). Should such a decision be taken, the third 
and fourth subparagraphs of paragraph 2 shall apply."  

(11) 

Article 48 is replaced by the following:  

"Article 48 

1.  The  Commission  shall  be  assisted  by  the  Committee  for  fisheries  and  aquaculture 
established by Regulation (EC) No 2371/2002. That committee shall be a committee within 
the meaning of Regulation (EU) No 182/2011. 

2. Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall 
apply. 

3. Where reference is made to this paragraph, Article 8 of Regulation (EU) No 182/2011, in 
conjunction with Article 5 thereof, shall apply." 

EN 

8 

   EN 

(12) 

The following Article 48a is inserted: 

"Article 48a  

1. 

2. 

3. 

4. 

5. 

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

The  delegation  of  power  referred  to  in  Articles  2(3),  4(4)c, 4(5)b,  16(2),  29(6)  and 
45(1) shall be conferred for an indeterminate period of time. 

The delegation of powers referred to in Articles 2(3), 4(4)c, 4(5)b, 16(2), 29(6) and 
45(1) 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 at a later date specified therein. It shall 
not affect the validity of any delegated acts already in force. 

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

A  delegated  act  adopted  pursuant  to  Articles  2(3),  4(4)c,  4(5)b,  16(2),  29(6)  and 
45(1)  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." 

This  Regulation  shall  enter  into  force  on  the  20th  twentieth  day  following  that  of  its 
publication in the Official Journal of the European Union. 

Article 2  

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 

9 

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