Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the framework of the Convention on Future Multilateral Co-operation in the North-East Atlantic Fisheries as regards the application for accession to that Convention submitted by the United Kingdom
Date: 2019-03-12
Institutions: Directorate-General for Maritime Affairs and Fisheries, European Commission
Subjects: Atlantic Ocean, United Kingdom, accession to an agreement, conservation of resources, fishery resources, fishing agreement, fishing area, fishing controls, international convention, management of resources

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   EUROPEAN COMMISSION  Brussels, 12.3.2019  COM(2019) 140 final 2019/0081 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the framework of the Convention on Future Multilateral Co-operation in the North-East Atlantic Fisheries  as regards the application for accession to that Convention submitted by the United Kingdom  
 
 
EXPLANATORY MEMORANDUM 

1. 

SUBJECT MATTER OF THE PROPOSAL 

This  proposal  concerns  the  Decision  establishing  the  position  to  be  taken  on  the  European 
Union's  behalf  in  the  Convention  on  Future  Multilateral  Cooperation  in  the  North-East 
Atlantic  Fisheries  (“the  NEAFC  Convention”)  in  relation  to  the  accession  of  the  United 
Kingdom of Great Britain and Northern Ireland ("the United Kingdom") to that Convention. 

2. 

CONTEXT OF THE PROPOSAL 

On  29  March  2017,  the  United  Kingdom  notified  the  European  Council  of  its  intention  to 
withdraw from the European Union, pursuant to Article 50 of the Treaty on European Union. 
Consequently, the United Kingdom will become a third country and Union law will cease to 
apply to it from 30 March 2019, unless another date is established in a withdrawal agreement 
between the Union and the United Kingdom, or if the European Council, in agreement with 
the United Kingdom, unanimously establishes another date. 

Until its withdrawal from the Union, the United Kingdom remains a Member State enjoying 
all  the  rights  and  is  bound  by  all  obligations  stemming  from  the  Treaties,  including  the 
compliance with the principle of sincere cooperation. In its Guidelines of 29 April 2017, the 
European Council recognised the need, in  the international  context,  to  take into account  the 
specificities of the United Kingdom as a withdrawing Member State, provided it respects its 
obligations and remains loyal to the Union's interests while still a Member State. 

The  Union  and  the  United  Kingdom  have  negotiated  a  withdrawal  agreement  pursuant  to 
Article 50 of the Treaty on European Union, which was endorsed by the European Council of 
25 November 2018 (the "Withdrawal Agreement"). The internal procedures for the conclusion 
of  this  Agreement  are  ongoing  at  the  level  of  the  Union1.  Part  Four  of  the  Withdrawal 
Agreement provides for  a transition  period during  which Union law, including international 
agreements  concluded  by  the  Union,  will  continue  to  be  applicable  to  and  in  the  United 
Kingdom,  ("transition  period").  The  Union  will  inform  its  international  partners  of  the 
specific arrangements foreseen in the Withdrawal Agreement under which, during a transition 
period,  the  UK  would  be  treated  as  a  Member  State  for  the  purposes  of  the  international 
agreements concluded by the Union, including the NEAFC Convention.   

The Commission Communication ‘Preparing for the withdrawal of the United Kingdom from 
the European Union on 30 March 2019: a Contingency Action Plan’ of 13 November 2018 set 
out the contingency measures it plans to take if no withdrawal agreement enters into force on 
the withdrawal date. In that Communication, the Commission listed the actions it considered 
necessary while recalling that additional actions may be necessary at a later stage.  

The  European  Council  (Article  50)  reiterated  its  call,  on  13  December  2018,  for  work  on 
preparedness  at  all  levels  for  the  consequences  of  the  United  Kingdom's  withdrawal  to  be 
intensified, taking into account all possible outcomes. 

The  NEAFC  Convention  currently  applies  to  the  United  Kingdom  as  a  result  of  the  Union 
being a Contracting Party to this Convention. This will end on the date the United Kingdom is 
no longer covered by the NEAFC Convention as a Member State of the Union. 

1 

See  Council  Decision  (EU)  2019/274  of  11  January  2019  on  the  signing,  on  behalf  of  the  European 
Union  and  of  the  European  Atomic  Energy  Community,  of  the  Agreement  on  the  withdrawal  of  the 
United  Kingdom  of  Great  Britain  and  Northern  Ireland  from  the  European  Union  and  the  European 
Atomic Energy Community (OJ L471, 19.2.2019, p. 1). 

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The  principal  objective  of  the  NEAFC  Convention  is  to  “promote  the  conservation  and 
optimum  utilisation  of  the  fishery  resources  of  the  North-East  Atlantic  area  within  a 
framework appropriate to the regime of extended coastal State jurisdiction over fisheries, and 
accordingly  to  encourage  international  cooperation  and  consultation  with  respect  to  these 
resources”.  The  NEAFC  Convention  entered  into  force  on  17  March  1982.  The  United 
Kingdom is Depositary for the NEAFC Convention.  

The 1982 NEAFC Convention replaced the original North-East Atlantic Fisheries Convention 
of  1959,  as  the  result  of  the  withdrawal  of  the  Member  States  of  the  European  Union  as 
individual members from the 1963 NEAFC organisation and the extension of States of fishery 
limits  to  200  miles  in  1977.  The  1959  NEAFC  Convention,  in  turn,  had  replaced  the  1946 
Convention for the Regulation of Meshes and Fishing Nets and the Size Limits of Fish.  

The 1982 NEAFC Convention was amended in 2004 (adding dispute settlement procedures) 
and  2006  (bringing  the  NEAFC  Convention  in  line  with  developments  in  international  law 
and instruments). The 2004 and 2006 amendments have not gone through the full process of 
ratification in all Contracting Parties. Through the 2006 "London Declaration" it was agreed 
among  Parties  to  apply  the  amendments  on  a  voluntary  basis  until  ratification  has  been 
finalised. 

For the purposes of the NEAFC Convention, the Contracting Parties established a North-East 
Atlantic  Fisheries  Commission  ("NEAFC").  NEAFC  has  legal  personality  and  enjoys  in  its 
relations with other international organisations and in the territories of the Contracting Parties 
such legal capacity as may be necessary to perform its functions and achieve its ends. 

There  are  five  Contracting  Parties,  all  coastal  States  in  the  NEAFC  Convention  Area:  the 
European  Union  (EU),  Denmark  (with  respect  to  Faeroe  Islands  and  Greenland),  Iceland, 
Norway  and  the  Russian  Federation.  Flag  States  with  a  real  interest  in  fisheries  in  the 
Northeast Atlantic can be granted a Co-operating non-Contracting Party status, allowing them 
to authorise vessels flying their flag to operate in the NEAFC Convention Area, agreeing to 
enforce  NEAFC  measures.  There  are  at  present  six  Co-operating  non-Contracting  Parties: 
Bahamas, Canada, Curaçao, Liberia, Panama and New Zealand. 
The  European  Union  is  a  Party  to  the  NEAFC  Convention2  because  its  subject  matter  falls 
within  the  scope  of  the  Common  Fisheries  Policy,  for  which  the  Union  has  exclusive 
competence. The Member States are covered by the NEAFC Convention pursuant  to  Union 
law.  

The  NEAFC  is  the  competent  organisation  to  adopt  recommendations  for  management 
measures concerning fisheries beyond the areas under fisheries jurisdiction of the Contracting 
Parties (the Regulatory Area), and for areas under the fisheries jurisdiction of a Contracting 
Parties  if  the  relevant  Contracting  Party  requests  this.  Adopted  recommendations  become 
binding  on  the  Contracting  Parties  unless  a  Contracting  Party  submits  a  timely  objection  to 
the recommendation. 

On 8 January 2019, the  United Kingdom  submitted an application to  accede to  the NEAFC 
Convention as a Contracting Party.  On the same  date, the  Depositary  notified the European 
Commission thereof. 

According  to  the  NEAFC  Convention,  any  State  (except  a  Member  State  of  the  European 
Union), may accede to the Convention at any time, provided that an application for accession 
of  that  State  meets  with  the  approval  of  three-fourths  of  all  the  Contracting  Parties.  The 
application  is  approved,  if  within  90  days  from  the  date  of  notification  three-fourths  of  the 

2 

OJ L 227, 12.8.1981, p. 21. 

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Contracting  Parties  have  notified  the  Depositary  of  their  approval  of  the  application3.  The 
Depositary  shall  notify  the  State  applying  for  accession  and  all  Contracting  Parties  of  the 
result  of  the  application.  Accession  shall  be  effected  by  the  deposit  of  an  instrument  of 
accession with the Depositary and shall take effect on the date of its receipt.   

The United Kingdom has clarified that its application was submitted as part of a contingency 
planning  in  the  absence  of  a  withdrawal  agreement  and  that  otherwise  it  will  refrain  from 
effecting the accession to the NEAFC Convention until a suitable time during the transition 
period, in accordance with the Withdrawal Agreement. 

3. 

POSITION TO BE TAKEN ON THE UNION'S BEHALF 

This Council Decision should enable the Commission to approve, on behalf of the Union, the 
accession  of  the  United  Kingdom  to  the  NEAFC  Convention,  taking  into  account  the 
following condition: given the uncertainty at present on the date and the terms of the United 
Kingdom’s withdrawal from the Union, the Union’s approval should only be communicated 
to the NEAFC Depositary if the withdrawal will take place without a withdrawal agreement 
by the expiry of the notification period referred to in Article 20(4) of the NEAFC Convention. 

A  core  objective  of  the  Common  Fisheries  Policy,  as  set  out  in  Regulation  (EU) 
No 1380/2013  of  the  European  Parliament  and  of  the  Council4  is  “to  ensure  that  fishing 
activities  are  environmentally,  economically  and  socially  sustainable  and  are  managed 
consistently with the objectives of achieving economic, social and employment benefits, and of 
restoring and maintaining fish stocks above levels which can produce maximum sustainable 
yield and that they are contributing to the availability of food supplies”.  

It is in the interest of the Union that the United Kingdom cooperates in the management of the 
stocks  of  common  interest  in  full  compliance  with  the  provisions  of  the  United  Nation 
Convention  on  the  Law  of  the  Sea  of  10  December  1982  ("UNCLOS")  and  the  United 
Nations  Agreement  for  the  implementation  of  the  provisions  of  the  United  Nations 
Convention  on  the  Law  of  the  Sea  of  10  December  1982  relating  to  the  conservation  and 
management  of  straddling  fish  stocks  and  highly  migratory  fish  stocks  of  4  August  1995 
("UNFSA"), or any other international agreement or norm of international law.  

Pursuant  to  Articles  56,  63  and  116  of  the  UNCLOS,  the  United  Kingdom  has  legitimate 
fishing interests within the Convention Area of the NEAFC Convention (high seas) and as a 
coastal State insofar as the waters under the exclusive economic zone of the United Kingdom 
fall within the Convention Area of the NEAFC Convention. 

As provided in Article 63(2) of the UNCLOS and in Article 8 of the UNFSA, where the same 
stock or stocks of associated species occur both within the exclusive economic zone and in an 
area beyond and adjacent to the zone, the coastal State and the States fishing for such stocks 
in the adjacent area must cooperate to agree upon the measures necessary for the conservation 
of these stocks in the adjacent area. This cooperation may be established in the framework of 
regional  fisheries  management  organisations  or,  where  regional  fisheries  management 
organizations    have  no  competence  for  the  stock  in  question,  by  means  of  ad  hoc 
arrangements among the countries having an interest in the fishery. 

The  accession  of  the  United  Kingdom  to  the  NEAFC  Convention  will  allow  the  United 
Kingdom to cooperate on the necessary fishery management measures with due regard to the 
rights,  interests  and  duties  of  other  countries  and  the  European  Union,  and  to  ensure  that 

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Regarding the United Kingdom’s application submitted on 8 January 2019, the 90-day period expires 
on 8 April 2019. 
OJ L 354, 28.12.2013, p. 22. 

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fishing  activities  are  carried  out  without  resulting  in  the  stock(s)  being  exploited 
unsustainably. 

In light of the legitimate fishing interests of the United Kingdom in the NEAFC Convention 
Area,  the  obligation  of  the  United  Kingdom  to  cooperate  on  the  necessary  fisheries 
management, and the need to ensure the binding character of the NEAFC Recommendations 
upon accession of the United Kingdom, the Commission recommends that the application by 
the United Kingdom is accepted, while taking into account the terms under which the United 
Kingdom will withdraw from the Union.  

It  is  proposed  that  the  Commission  be  authorised  to  inform  the  Depositary  of  the  NEAFC 
Convention of the Union position in favour of the United Kingdom’s accession if the United 
Kingdom withdraws from the Union without a withdrawal agreement by the end of the United 
Kingdom’s application period to the NEAFC Convention.  

In  the  event  that  the  United  Kingdom  withdraws  from  the  Union  under  the  terms  of  the 
Withdrawal Agreement and the related transition period, the Union will notify its international 
partners  upon  signature  of  the  Withdrawal  Agreement,  including  the  other  Parties  to  the 
NEAFC Convention, that during this transition period the United Kingdom is to be treated as 
a Member State for the purposes of the international agreements to which the Union is a party.  
Consequently,  the  United  Kingdom  application  to  the  NEAFC  Convention  would  require 
resubmission, in accordance with the terms of the Withdrawal Agreement. 

4. 

LEGAL BASIS 

4.1. 

Procedural legal basis 

4.1.1.  Principles 

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for 
decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by 
an  agreement,  when  that  body  is  called  upon  to  adopt  acts  having  legal  effects,  with  the 
exception of acts supplementing or amending the institutional framework of the agreement.’ 

The concept of ‘acts having legal effects’ includes acts that have legal effects by virtue of the 
rules of international law. It also includes instruments that do not have a binding effect under 
international law, but that are ‘capable of decisively influencing the content of the legislation 
adopted by the EU legislature’5. 

4.1.2.  Application to the present case 

Any State may accede to the NEAFC Convention at any time. The application is approved if 
within 90 days from the date of notification by the Depositary of the receipt of the application, 
three-fourths of all the  Contracting Parties  have notified the Depositary  of their approval  of 
the application by that date. The Depositary shall notify the State applying for accession and 
all Contracting Parties of the result of the application. 

Accession  is  effected  by  the  deposit  of  an  instrument  of  accession  with  the  Depositary  and 
takes effect on the date of its receipt. The Depositary informs all Signatories and all acceding 
Parties  of  all  instruments  of  ratification,  acceptance,  approval  or  accession  deposited,  and 
notifies Signatories of the date and the Parties in respect of which this Convention enters into 
force. 

5 

Judgment  of 
ECLI:EU:C:2014:2258, paragraphs 61 to 64.  

the  Court  of  Justice  of  7  October  2014,  Germany  v  Council,  C-399/12, 

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The accession of the United Kingdom, once effective, will be binding under international law 
in  accordance  with  Article  24  of  the  NEAFC  Convention  and  is  capable  of  decisively 
influencing the content of EU legislation.  

The envisaged act does not supplement or amend the institutional framework of the NEAFC 
Convention. Therefore, the procedural legal basis for the proposed decision is Article 218(9) 
TFEU. 

4.2. 

Substantive legal basis 

4.2.1.  Principles 

The  substantive  legal  basis  for  a  decision  under  Article  218(9)  TFEU  depends  primarily  on 
the objective and content of the envisaged act in respect of which a position is taken on the 
Union's behalf. If the envisaged act pursues several aims or has several components and if one 
of  those  aims  or  components  is  identifiable  as  the  main  one,  whereas  the  others  are  merely 
incidental, the decision under Article 218(9) TFEU must be founded on a single substantive 
legal basis, namely that required by the main or predominant aim or component. 

4.2.2.  Application to the present case 

The main objective and content of the envisaged act relate to the Common Fisheries Policy. 

Therefore, the substantive legal basis of the proposed decision is Article 43 TFEU. 

4.3. 

Conclusion 

The  legal  basis  of  the  proposed  decision  should  be  Article  43,  in  conjunction  with  Article 
218(9) TFEU. 

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2019/0081 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the framework of the 
Convention on Future Multilateral Co-operation in the North-East Atlantic Fisheries  as 
regards the application for accession to that Convention submitted by the United 
Kingdom 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 43, in conjunction with Article 218(9) thereof, 

Having regard to the proposal from the European Commission, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

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The  Convention  on  Future  Multilateral  Cooperation  in  the  North-East  Atlantic 
Fisheries6 
(‘the  NEAFC  Convention’)  was  approved  by  Council  Decision 
81/608/EEC7 and entered into force on 17 March 1982.  

On 29 March 2017, the United Kingdom submitted the notification of its intention to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. The 
Treaties will cease to apply to the United Kingdom from the date of entry into force of 
a withdrawal agreement or, failing that, two years after that notification, namely from 
30 March 2019, unless the European Council, in agreement with the United Kingdom, 
unanimously decides to extend that period.  

Until  its  withdrawal  from  the  Union,  the  United  Kingdom  remains  a  Member  State 
enjoying  all  the  rights  and  is  bound  by  all  obligations  stemming  from  the  Treaties, 
including compliance with the principle of sincere cooperation.  

In the guidelines of 29 April 2017, the European Council recognised the need, in the 
international context, to take into account the specificities of the United Kingdom as a 
withdrawing  Member  State,  provided  it  respects  its  obligations  and  remains  loyal  to 
the Union's interests while still a Member State.  

The Withdrawal Agreement contains arrangements for the application of provisions of 
Union law to and in the United Kingdom beyond the date the Treaties cease to apply 
to the United Kingdom (‘transition period’). If that agreement enters into force, Union 
law, including international agreements to which the Union is a party, will continue to 
apply  to  and  in  the  United  Kingdom  during  the  transition  period  in  accordance  with 
that agreement and will cease to apply at the end of that period. 

The  NEAFC  Convention  currently  applies  to  the  United  Kingdom  as  a  result  of  the 
Union  being  a  Contracting  Party  to  that  Convention,  while  Article  20(4)  of  the 
NEAFC Convention excludes the accession of Member States of the Union.  

OJ L 227, 12.8.1981, p. 22. 
Council Decision 81/608/EEC of 13 July 1981 concerning the conclusion of the Convention on  Future 
Multilateral Cooperation in the North-East Atlantic Fisheries (OJ L 227, 12.8.1981, p. 21). 

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(7) 

(8) 

(9) 

(10) 

Pursuant  to  Article  20(4)  of  the  NEAFC  Convention,  any  State  may  accede  to  the 
NEAFC Convention provided that an application for accession of that State meets with 
the  approval  of  three-fourths  of  all  Contracting  Parties  to  the  Convention  within  90 
days from the date of notification by the Depositary of the receipt of the application. 

On  8  January  2019,  the  United  Kingdom  submitted  an  application  to  accede  to  the 
NEAFC  Convention  as  a  Contracting  Party  in  view  of  a  possible  absence  of  a 
withdrawal agreement by the date the Treaties cease to apply to it.  

Pursuant to Articles 56, 63 and 116 of United Nations Convention on the Law of the 
Sea  (UNCLOS)8,  the  United  Kingdom  has  legitimate  fishing  interests  within  the 
Convention Area of the NEAFC Convention (high seas) and as a coastal State, insofar 
as  the  waters  under  the  exclusive  economic  zone  of  the  United  Kingdom  fall  within 
the Convention Area of the NEAFC Convention.  

In  order  to  prevent  unsustainable  fisheries,  it  is  in  the  interest  of  the  Union  that  the 
United  Kingdom  cooperates  in  the  management  of  the  stocks  of  common  interest  in 
full  compliance  with  the  provisions  of  the  UNCLOS  and  the  United  Nations 
Agreement for the implementation of the provisions of the United Nations Convention 
on  the  Law  of  the  Sea  of  10  December  1982  relating  to  the  conservation  and 
management  of  straddling  fish  stocks  and  highly  migratory  fish  stocks  of  4  August 
1995  (UNFSA)9 or any other international agreement or norm of international law. 

(11)  As provided in Article 63(2) of the UNCLOS and in Article 8 of the UNFSA, where 
the  same  stock  or  stocks  of  associated  species  occur  both  within  the  exclusive 
economic zone and in an area beyond and adjacent to that zone, the coastal State and 
the States fishing for such stocks in the adjacent area must cooperate to agree upon the 
measures  necessary  for  the  conservation  of  those  stocks  in  the  adjacent  area.  Such 
cooperation  may  be  established  in  the  framework  of  regional  fisheries  management 
organisations or, where such regional organisations have no competence for the stock 
in question, by means of ad hoc arrangements among the countries having an interest 
in the fishery. 

(12)  The  accession  of  the  United  Kingdom  to  the  NEAFC  Convention  will  allow  the 
United  Kingdom  to  cooperate  on  the  necessary  fishery  management  measures  with 
due regard to the rights, interests and duties of other countries and the Union, with a 
view  to  ensuring  that  fishing  activities  are  carried  out  in  a  way  that  results  in  the 
sustainable exploitation of the stock or stocks concerned.   

(13) 

It is therefore in the interest of the Union to  approve the application for accession to 
the  NEAFC  Convention  submitted  by  the  United  Kingdom  if  the  withdrawal  of  the 
United Kingdom from the Union takes place without a withdrawal  agreement by the 
expiry  of  the  notification  period  referred  to  in  Article  20(4)  of  the  NEAFC 
Convention,  

8 
9 

OJ L 179, 23.6.1998, p. 3. 
OJ L 189, 3.7.1998, p. 14. 

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HAS ADOPTED THIS DECISION: 

Article 1 

1. 
The position to be taken on the Union's behalf in the framework of the Convention on 
Future  Multilateral  Cooperation  in  the  North-East  Atlantic  Fisheries  (‘the  NEAFC 
Convention’) shall be to approve the application for accession of the United Kingdom to the 
NEAFC Convention.  

The  Commission  shall  be  authorised  to  notify  the  Depositary  of  the  NEAFC 
2. 
Convention of the Union’s position only  if the withdrawal of the United Kingdom from the 
Union  takes  place  without  a  withdrawal  agreement  by  the  expiry  of  the  notification  period 
referred to in Article 20(4) of the NEAFC Convention.  

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

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