Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL amending Council Regulation (EC) No 812/2004 laying down measures concerning incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98
Date: 2012-08-08
Institutions: European Commission
Subjects: by-catch, comitology, delegation of power, disclosure of information, signalling device, technical standard

EUROPEAN COMMISSION 

Brussels, 8.8.2012  
COM(2012) 447 final 

2012/0216 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 812/2004 laying down measures concerning 
incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 

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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  the  context  of  the  alignment  of  Regulation  (EC)  No  812/2004  to  the  new  rules  of  the 
TFEU,  powers  currently  conferred  to  the  Commission  by  that  Regulation  have  been 
reclassified into measures of delegated nature and measures of implementing nature. 

The Commission should therefore be empowered to adopt delegated acts to adapt conditions 
and  technical  specifications  for  the  use  of  acoustic  deterrent  devices.  Likewise  the 
Commission should be empowered to adopt implementing acts concerning the procedure and 
format for reporting obligations for Member States.  

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 

To  identify  the  powers  conferred  upon  the  Commission  in  Council  Regulation  (EC)  No 
812/2004 and to classify these as delegated or implementing powers. 

•  Legal basis 

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

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OJ L 55, 28.02.2011, p.19 

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•  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 
182/2004, 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. 

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2012/0216 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Council Regulation (EC) No 812/2004 laying down measures concerning 
incidental catches of cetaceans in fisheries and amending Regulation (EC) No 88/98 

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  Committee,  after 
transmission of the draft legislative act to the national Parliaments, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

Council Regulation (EC) No 812/20042 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, the Commission powers 
conferred for the implementation of Regulation (EC) No 812/2004 need to be aligned 
to Articles 290 and 291 of the Treaty on the Functioning of the European Union.  

In  order  to  apply  certain  provisions  of  Regulation  (EC)  No  812/2004,  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  technical 
specifications and conditions of use of acoustic deterrent devices. 

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  812/2004  concerning  rules  on  the  procedure  and  format  for 
reporting  obligations  for  Member  States,  implementing  powers  should  be  conferred 

2 

OJ L 150, 30.4.2004, p. 12. 

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upon  the  Commission.  Those  powers  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. 

(7) 

Regulation (EC) No 812/2004 should therefore be amended accordingly, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 812/2004 is amended as follows: 

(1) 

In Article 3, paragraph 1 is replaced by the following:  

"1. Acoustic deterrent devices used in application of Article 2(1) shall comply with technical 
specifications and conditions of use. The conditions and specifications are defined in Annex 
II.  The  Commission  shall  be  empowered  to  amend  Annex  II  by  means  of  delegated  acts 
adopted in accordance with Article 8a, in order to adapt that Annex to technical and scientific 
progress." 

(2) 

Article 8, is replaced by the following: 

"Article 8 
Implementation 

Detailed  rules  on  the  procedure  and  format  for  reporting,  as  set  out  in  Article  6  may  be 
established  by  means  of  implementing  acts  adopted  in  accordance  with  the  examination 
procedure referred to in Article 8b(2)." 

(3) 

The following Articles 8a and 8b are inserted: 

"Article 8a 
Exercise of the delegation  

1. 

2. 

3. 

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  Article  3(1)  shall  be  conferred  for  an 
indeterminate period of time. 

The delegation of powers referred to in Article 3(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. 

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OJ L 55, 28.2.2011, p.13 

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4. 

5. 

1. 

2. 

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  Article  3(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. 

Article 8b 
Committee procedure 

The  Commission  shall  be  assisted  by  the  Committee  for  Fisheries  and  Aquaculture 
established by Article 30 of Regulation (EC) No 2371/2002. That committee shall be 
a committee within the meaning of Regulation (EU) No 182/2011.  

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

This Regulation shall enter into force on the 20th 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 

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