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 and repealing Council Decision (EU) 2019/510
Date: 2020-09-07
Institutions: Directorate-General for Maritime Affairs and Fisheries, European Commission
Subjects: Atlantic Ocean, United Kingdom, accession to an agreement, conservation of fish stocks, fishery resources, fishing agreement, fishing area, fishing controls, international convention, sea fishing

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   EUROPEAN COMMISSION  Brussels, 7.9.2020  COM(2020) 488 final 2020/0243 (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 and repealing Council Decision (EU) 2019/510  
 
EXPLANATORY MEMORANDUM 

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  - in  its  own right 
during  the  transition  period  -  of  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland 
("the United Kingdom") to that Convention. 

1. 

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.  

The  Union  and  the  United  Kingdom  have  negotiated  a  withdrawal  agreement  pursuant  to 
Article  50  of  the  Treaty  on  European  Union.  The  Withdrawal  Agreement1    (hereinafter 
“WA”) entered into force on 1 February 2020, after having been agreed on 17 October 2019, 
together  with  the  Political  Declaration  setting  the  framework  of  the  future  EU-UK 
partnership.  

Article 127(1) WA provides for a transition period during which Union law will continue to 
be applicable to and in the United Kingdom, ("transition period"). The transition period ends 
on  31  December  2020.  Article  129(1)  WA  provides  that,  during  the  transition  period,  the 
United  Kingdom  is  bound  by  the  obligations  stemming  from  the  international  agreements 
concluded  by  the  Union,  by  Member  States  acting  on  its  behalf,  or  by  the  Union  and  its 
Member  States  acting  jointly.  Article  129(3)  WA  provides  that,  in  accordance  with  the 
principle  of  sincere  cooperation,  the  United  Kingdom  must  refrain,  during  the  transition 
period, from any action or initiative which is likely to be prejudicial to the Union's interests, 
in particular in the framework of any international organisations, agency, conference or forum 
of which the United Kingdom is a party in its own right.  

The Union has informed its international partners of the specific arrangements foreseen in the 
WA under which, during a transition period, the United Kingdom will be treated as a Member 
State for the purposes of the international agreements concluded by the Union.  

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 

1 

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 C 384I, 12.11.2019, p. 1. 

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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. 

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 
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.   

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.  
Council Decision (EU) 2019/5104 established the Union’s position to approve the application 
for  accession  of  the  United  Kingdom  to  the  NEAFC  Convention  and  authorised  the 
Commission to notify the Depositary of the NEAFC Convention of the Union’s position only 
if  the  withdrawal  of  the  United  Kingdom  from  the  Union  took  place  without  a  withdrawal 
agreement by the expiry of the notification period referred to in Article 20(4) of the NEAFC 
Convention.  

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4 

OJ L 227, 12.8.1981, p. 21. 
Regarding the United Kingdom’s application submitted on 8 January 2019,  the 90-day period expires 
on 8 April 2019. 
Council  Decision  (EU)  2019/510  of  25  March  2019  on  the  position  to  be  taken  on  behalf  of  the 
European Union in the  framework of the Convention on  future  multilateral cooperation in the North-
East  Atlantic  fisheries  as  regards  the  application  for  accession  to  that  Convention  submitted  by  the 
United Kingdom, OJ L 85, 27.3.2019, p. 22. 

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The application for accession by the United Kingdom did not meet the required approval of 
three-fourths  of  all  the  Contracting  Parties:  the  quorum  of  three-fourths  of  the  Contracting 
Parties required to notify the Depositary of their approval of the application was not reached.  

In accordance with Article 129(4) WA, during the transition period, the United Kingdom may 
negotiate, sign and ratify international agreements entered into in its own capacity in the areas 
of exclusive competence of the Union, provided those agreements do not enter into force or 
apply  during  the  transition  period,  unless  so  authorised  by  the  Union.  Council  Decision 
2020/1355 sets out the conditions and procedure for granting such authorisations. 

By  means  of  its  letter  of  3  April  2020,  the  United  Kingdom  notified  the  European 
Commission of its intention to express its consent to be bound in its own capacity during the 
transition  period  by  the  NEAFC  Convention.  Council  Implementing  Decision  XXX6 
authorises the United Kingdom to express its consent to be bound, in its own capacity, by the 
NEAFC  Convention  as  the  conditions  set  out  in  Article  3(2)  of  Council  Decision  2020/135 
are fulfilled.  

2. 

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, 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  Council7  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  Nations 
Convention  on  the  Law  of  the  Sea  of  10  December  19828  ("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  19959 
("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 

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Council  Decision  (EU)  2020/135  of  30  January  2020  on  the  conclusion  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 29, 31.1.2020, p. 1. 
(OJ L xxx, xxx, p. xxx). 
OJ L 354, 28.12.2013, p. 22. 
United Nations Convention on the Law of the Sea, OJ L 179, 23.6.1998, p. 3. 
Agreement on 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  -  Declaration  concerning  the  competence  of  the  European  Community  - 
Interpretative declarations, OJ L 189, 3.7.1998, p. 17. 

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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  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 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.  

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 to the NEAFC 
Convention.  

3. 

LEGAL BASIS 

3.1. 

Procedural legal basis 

3.1.1.  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’10. 

3.1.2.  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. 

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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. 

3.2. 

Substantive legal basis 

3.2.1.  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. 

3.2.2.  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. 

3.3. 

Conclusion 

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

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2020/0243 (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 and repealing Council Decision (EU) 2019/510 

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) 

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The  Convention  on  Future  Multilateral  Cooperation  in  the  North-East  Atlantic 
Fisheries1 
(‘the  NEAFC  Convention’)  was  approved  by  Council  Decision 
81/608/EEC2 and entered into force on 17 March 1982.  

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.  

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. On the same date, the Depositary notified 
the European Commission thereof. 
On 25 March 2019, the Council adopted Decision (EU) 2019/5103 on the position to 
be  taken  on  behalf  of  the  European  Union  in  the  framework  of  the  NEAFC 
Convention as regards the application for accession  to  that Convention submitted by 
the United Kingdom. That decision was favourable to the United Kingdom’s accession 
to the NEAFC Convention and was adopted in order to anticipate the situation where 
the  United  Kingdom  would  leave  the  Union  without  a  withdrawal  agreement. 
Consequently,  Decision  2019/510  only  authorised  the  Commission  to  notify  the 
Union’s position in case not withdrawal agreement was concluded. 

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). 
Council  Decision  (EU)  2019/510  of  25  March  2019  on  the  position  to  be  taken  on  behalf  of  the 
European Union in the  framework of the Convention on  future  multilateral cooperation in the North-
East  Atlantic  fisheries  as  regards  the  application  for  accession  to  that  Convention  submitted  by  the 
United Kingdom (OJ L 85, 27.3.2019, p. 22).  

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(6)  Moreover,  the  application  for  accession  by  the  United  Kingdom  did  not  meet  the 
required approval of three-fourths of all the Contracting Parties: the quorum of three-
fourths of the Contracting Parties required to notify the Depositary of their approval of 
the application was not reached.  

(7) 

(8) 

(9) 

In accordance with Article 129(4) 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,  during  the  transition  period,  the  United 
Kingdom  may  negotiate,  sign  and  ratify  international  agreements  entered  into  in  its 
own  capacity  in  the  areas  of  exclusive  competence  of  the  Union,  provided  those 
agreements  do  not  enter  into  force  or  apply  during  the  transition  period,  unless  so 
authorised  by  the  Union.  Council  Decision  2020/1354  sets  out  the  conditions  and 
procedure for granting such authorisations. 

By  means  of  its  letter  of  3  April  2020,  the  United  Kingdom  notified  the  European 
Commission  of  its  intention  to  express  its  consent  to  be  bound  in  its  own  capacity 
during the transition period by the NEAFC Convention.  
Council  Implementing  Decision  (EU)  XXX5  authorises  the  United  Kingdom  to 
express its consent to be bound, in its own capacity, by the NEAFC Convention as the 
conditions set out in Article 3(1) of Decision (EU) 2020/135 are fulfilled. 

(10)  Pursuant to Articles 56, 63 and 116 of United Nations Convention on the Law of the 
Sea  (UNCLOS)6,  the  United  Kingdom  has  legitimate  fishing  interests  within  the 
Convention Area of the NEAFC Convention (high seas) 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.  

(11) 

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)7 or any other international agreement or norm of international law. 

(12)  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. The accession  of the United Kingdom  to  the NEAFC Convention will 
allow  the  United  Kingdom  to  cooperate  on  the  necessary  fishery  management 

4 

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7 

Council  Decision  (EU)  2020/135  of  30  January  2020  on  the  conclusion  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 29, 31.1.2020, p. 1). 
Council Implementing Decision (EU) 2020/XXX of [date] on the authorisation of the United Kingdom 
to express its consent to be bound, in its own capacity, by certain international agreements entering into 
force or be applied during the transition period in the area of the Union’s common fisheries policy (OJ 
L xxx, xxx, p. xxx). 
OJ L 179, 23.6.1998, p. 3. 
OJ L 189, 3.7.1998, p. 14. 

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measures, 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)  That  accession  still  before  the  expiry  of  the  transition  period  will  enable  the  United 
Kingdom to give full effect to the obligations emanating from the UNCLOS in respect 
of  conservation  and  management  measures  taking  effect  as  from  the  moment  the 
transition period ends and Union law ceases to apply to it. It is therefore in the interest 
of  the  Union  to  approve  the  application  for  accession  to  the  NEAFC  Convention 
submitted by the United Kingdom by the expiry of the notification period referred to 
in Article 20(4) of the NEAFC Convention. 

(14) 

In the interest of clarity and legal clarity, Decision (EU) 2019/510 should be repealed,  

HAS ADOPTED THIS DECISION: 

Article 1 

1. 

2. 

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 
Convention of the Union’s position by the expiry of the notification period referred 
to in Article 20(4) of the NEAFC Convention.  

Decision (EU) 2019/510 is repealed.  

Article 2 

Article 3. 

This Decision is addressed to the Commission. 

Done at Brussels, 

For the Council 
The President 

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