Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the framework of the Convention for the Conservation of Salmon in the North Atlantic Ocean as regards the application for accession to that Convention submitted by the United Kingdom
Date: 2019-04-10
Institutions: Directorate-General for Maritime Affairs and Fisheries, European Commission
Subjects: Atlantic Ocean, United Kingdom, accession to an agreement, conservation of fish stocks, fishing agreement, fishing area, international convention, sea fish

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 10.4.2019  COM(2019) 184 final 2019/0094 (NLE)  Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the framework of the Convention for the Conservation of Salmon in the North Atlantic Ocean  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 body established by the Convention for the Conservation of Salmon in 
the  North  Atlantic  Ocean  (“the  NASCO  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 either at the date of entry into force of the Withdrawal Agreement or, failing that, 
on  13  April  2019,  unless  a  later  date  is  decided  unanimously  by  the  European  Council  in 
agreement with the UK. 

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 NASCO 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  and  21  March 
2019,  for  work  on  preparedness  and  contingency  at  all  levels  for  the  consequences  of  the 
United Kingdom's withdrawal to be intensified, taking into account all possible outcomes. 

The  NASCO  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 NASCO 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 L 47 I, 19.2.2019, p. 1). 

EN 

1 

  EN 

 
                                                 
The principal objective of the NASCO Convention is “to contribute through consultation and 
co-operation  to  the  conservation,  restoration,  enhancement  and  rational  management  of 
salmon stocks, taking into account the best scientific evidence available to it”. The NASCO 
Convention  entered  into  force  on  1  October  1983.  The  Council  of  the  European  Union  is 
Depositary for the NASCO Convention.  

2.1. 

The North Atlantic Salmon Conservation Organisation 

The  North  Atlantic  Salmon  Conservation  Organisation  is  an  international  organisation 
established  under  the  NASCO  Convention.  It  was  established  taking  direct  account  of  the 
specific  provisions  on  anadromous  fish  stocks  of  fish  set  out  in  Article  66  of  the  United 
Nation Convention on the Law of the Sea of 10 December 1982 ("UNCLOS").  

The  Convention  applies  to  the  wild  salmon  stocks  which  migrate  beyond  areas  of  fisheries 
jurisdiction  of  coastal  States  of  the  Atlantic  Ocean  north  of  36°N  latitude  throughout  their 
migratory range.  

NASCO is therefore responsible for the regulation of the fishing activity of wild salmon at sea 
throughout  the  North  Atlantic.  It  also  deals  with  other  relevant  questions  in  respect  of  the 
conservation of the wild salmon stocks. In a broader context, NASCO also considers further 
and appropriate measures for waters under the jurisdiction of the contracting Parties, in order 
to ensure the survival of the wild Atlantic salmon.  

NASCO 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. 

2.2. 

The NASCO 

NASCO consists of a council, three regional Commissions (the North American Commission, 
the North-East Atlantic Commission and the West Greenland Commission) and a Secretariat. 
The  council  has  representatives  from  all  Contracting  Parties  to  the  Convention:  Canada, 
Denmark  (in  respect  of  the  Faroe  Islands  &  Greenland),  the  European  Union,  Norway,  the 
Russian  Federation  and  the  United  States  of  America.  France  (in  respect  of  St.  Pierre  & 
Miquelon) attends NASCO's meetings as an observer. 
The  European  Union  is  a  Party  to  the  NASCO  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 NASCO Convention pursuant to Union 
law.  

The  European  Union  is  a  full  member  of  both  the  North-East  Atlantic  Commission  and  the 
West Greenland Commission.  In the North American Commission, the European Union has 
the  right  to  submit  and  vote  on  proposals  for  regulatory  measures  concerning  wild  salmon 
stocks originating in Union territories. For this purpose, the Union is deemed to be a member 
of this Commission insofar as the consideration of such proposals is concerned. 

2.3. 

The envisaged act of the NASCO 

The  NASCO  Convention  is  open  for  accession,  subject  to  the  approval  of  the  NASCO 
council, by any State that exercises fisheries jurisdiction in the North Atlantic Ocean or is a 
State of origin for salmon stocks.  

In  its  letter  of  28  February  2019,  the  United  Kingdom  submitted  an  application  to  the 
President  of  the  NASCO  council,  requesting  an  approval  of  its  accession  to  the  NASCO 

2 

OJ L 378, 31.12.1982, p. 24.  

EN 

2 

  EN 

 
                                                 
Convention.  On  11  March  2019,  the  NASCO  Secretariat  notified  all  parties  to  the 
Convention,  including  the  European  Commission,  thereof.  In  accordance  with  Article  17  of 
the NASCO Convention, a prior approval of the NASCO council is needed for the accession 
of the United Kingdom to be considered valid.   

Decisions of the NASCO council are to be taken by a three-quarters majority of the votes of 
the  members  present  and  casting  an  affirmative  or  negative  vote.  A  vote  can  only  be  taken 
unless two thirds of the members of the council are present.  

Instruments of approval  or accession are thereafter to be deposited with the Depositary. For 
each Party acceding to the NASCO Convention after the deposit of the requisite instruments 
of  ratification,  approval  or  accession,  it  shall  enter  into  force  on  the  date  of  deposit  of  the 
instrument of accession.  

The United Kingdom has clarified that its application was submitted as part of a contingency 
planning  in  the  absence  of  a  withdrawal  agreement.  In  its  application,  the  United  Kingdom 
specifies that “[i]n the event that the Withdrawal Agreement is signed, ratified and approved 
[…]  the  United  Kingdom  will  refrain  from  depositing  its  Instrument  of  Accession  to  bring 
about  membership  of  NASCO  in  its  own  right  with  effect  from  the  point  of  its  withdrawal 
from the European Union.” 

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  NASCO  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 to the NASCO should only be 
communicated when Union law ceases to apply to the United Kingdom.  

A  core  objective  of  the  Common  Fisheries  Policy,  as  set  out  in  Regulation  (EU) 
No 1380/2013  of  the  European  Parliament  and  of  the  Council3  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 
salmon stocks 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  Article 66 of the UNCLOS,  States in  whose rivers anadromous stocks originate 
have  the  primary  interest  in  and  responsibility  for  such  stocks.  The  State  of  origin  of 
anadromous  stocks  must  ensure  their  conservation  by  the  establishment  of  appropriate 
regulatory  measures  for  fishing  in  all  waters  landward  of  the  outer  limits  of  its  exclusive 
economic  zone.  In  cases  where  anadromous  stocks  migrate  into  or  through  the  waters 
landward of the outer limits of the exclusive economic zone of a State other than the State of 
origin, such State must cooperate with the State of origin with regard to the conservation and 
management of such stocks. 

3 

OJ L 354, 28.12.2013, p. 22. 

EN 

3 

  EN 

 
                                                 
The  State  of  origin  of  anadromous  stocks  and  other  States  fishing  these  stocks  must  make 
arrangements  for  the  implementation  of  Article  66  of  UNCLOS.  Such  cooperation  may  be 
established in the framework of regional fisheries management organisations. 

The United Kingdom, as a State of origin and as a State exercising fisheries jurisdiction has 
legitimate  interests  within  the  NASCO  Convention  Area  insofar  as  the  waters  under  the 
exclusive  economic  zone  of  the  United  Kingdom  and  the  adjacent  high  seas  fall  within  the 
NASCO Convention Area.  

The  accession  of  the  United  Kingdom  to  the  NASCO  Convention  will  allow  the  United 
Kingdom to cooperate on the necessary salmon management and conservation measures with 
due regard to the rights, interests and duties of other countries and the European Union, and to 
ensure that 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 NASCO 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  NASCO  Decisions  upon 
accession  of  the  United  Kingdom,  the  Commission  recommends  that  the  application  by  the 
United Kingdom is accepted.  

It  is  proposed  that  the  Commission  be  authorised  to  inform  the  President  of  the  NASCO 
council of the Union position in favour of the United Kingdom’s accession from the moment 
Union law ceases to apply to the United Kingdom and to cast its vote along these lines in the 
context of the NASCO council which will decide on membership of the United Kingdom.  

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 
NASCO 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.  

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’4. 

4.1.2.  Application to the present case 

The  NASCO  Convention  is  open  for  accession,  subject  to  the  approval  of  the  NASCO 
council, by any State that exercises fisheries jurisdiction in the North Atlantic Ocean or is a 
State of origin for salmon stocks.  

4 

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, 

EN 

4 

  EN 

 
                                                 
Decisions of the NASCO council are to be taken by a three-quarters majority of the votes of 
the  members  present  and  casting  an  affirmative  or  negative  vote.  A  vote  can  only  be  taken 
unless two thirds of the members of the NASCO council are present.  

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 the instruments of approval 
or  accession  deposited,  and  notifies  the  date  and  the  Parties  in  respect  of  which  this 
Convention enters into force. 

The accession of the United Kingdom, once effective, will be binding under international law 
in  accordance  with  Article  17(3)  of  the  NASCO  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 NASCO 
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. 

EN 

5 

  EN 

 
2019/0094 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the position to be taken on behalf of the European Union in the framework of the 
Convention for the Conservation of Salmon in the North Atlantic Ocean  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) 

The  Convention  for  the  Conservation  of  Salmon  in  the  North  Atlantic  Ocean5  (‘the 
NASCO  Convention’)  was  approved  by  Council  Decision  82/886/EEC6  and  entered 
into force on 1 October 1983.  

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,  on  13  April  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. 

(6) 

The  NASCO  Convention  currently  applies  to  the  United  Kingdom  as  a  result  of  the 
Union being a Contracting Party to that Convention.  

5 
6 

OJ L 378, 31.12.1982, p. 25. 
Council Decision 82/886/EEC of 13 December 1982 concerning the conclusion of the Convention for 
the Conservation of Salmon in the North Atlantic Ocean (OJ L 378 , 31.12.1982, p. 24).  

EN 

6 

  EN 

 
 
                                                 
(7) 

(8) 

(9) 

Pursuant  to  Article  17(3)  of  the  NASCO  Convention,  that  Convention  is  open  for 
accession,  subject  to  the  approval  of  the  council  of  the  North  Atlantic  Salmon 
Conservation Organisation established by the NASCO Convention, by any State that 
exercises fisheries jurisdiction in the North  Atlantic Ocean or is a State of origin for 
salmon stocks. 

On 28 February 2019, the United Kingdom submitted an application to accede to the 
NASCO  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  Article  66  of  the  United  Nations  Convention  on  the  Law  of  the  Sea 
(UNCLOS)7,  States  in  whose  rivers  anadromous  stocks  originate  have  the  primary 
interest in and responsibility for such stocks. The State of origin of anadromous stocks 
must  ensure  their  conservation  by  the  establishment  of  appropriate  regulatory 
measures  for  fishing  in  all  waters  landward  of  the  outer  limits  of  its  exclusive 
economic zone. In cases where anadromous stocks migrate into or through the waters 
landward of the outer limits of the exclusive economic zone of a State other than the 
State of origin, such State must cooperate with the State of origin with  regard to the 
conservation and management of such stocks.  

(10) 

In  order  to  prevent  unsustainable  fisheries,  it  is  in  the  interest  of  the  Union  that  the 
United  Kingdom  cooperates  in  the  management  of  the  salmon  stocks  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)8 or 
any other international agreement or norm of international law. 

(11)  As provided in Article 66 of the UNCLOS, the State of origin of anadromous stocks 
and other States fishing these stocks must make arrangements for the implementation 
of  that  Article.  Such  cooperation  may  be  established  in  the  framework  of  regional 
fisheries management organisations. 

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

(13) 

It is therefore in the interest of the Union to approve the application for accession to 
the  NASCO  Convention  submitted  by  the  United  Kingdom  from  the  moment  Union 
law ceases to apply to the United Kingdom,  

7 
8 

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

EN 

7 

  EN 

 
                                                 
HAS ADOPTED THIS DECISION: 

Article 1 

The  position  to  be  taken  on  the  Union's  behalf  in  the  council  of  the  North  Atlantic  Salmon 
Conservation Organisation established by the Convention for the Conservation of Salmon in 
the  North  Atlantic  Ocean  shall  be  to  approve  the  application  for  accession  of  the  United 
Kingdom to that Convention provided that this approval takes effect from the moment Union 
law ceases to apply to the United Kingdom.  

This Decision is addressed to the Commission. 

Done at Brussels, 

Article 2 

For the Council 
The President 

EN 

8 

  EN