Source: EURLEX
Language: en
Format: md

**Council of the**
**European Union**

**Interinstitutional File:**

**2021/0174(NLE)**

**PROPOSAL**

**Brussels, 29 June 2021**
**(OR. en)**

**10285/21**

**UK 163**
**PECHE 240**

From: Secretary-General of the European Commission, signed by Ms Martine
DEPREZ, Director

date of receipt: 29 June 2021

To: Mr Jeppe TRANHOLM-MIKKELSEN, Secretary-General of the Council
of the European Union

No. Cion doc.: COM(2021) 353 final

Subject: Proposal for a COUNCIL DECISION on the position to be taken on
behalf of the European Union, for the period 2021-2026, in the
Specialised Committee on Fisheries established by the Trade and
Cooperation Agreement between the European Union and the
European Atomic Energy Community, of the one part, and the United
Kingdom of Great Britain and Northern Ireland, of the other part

Delegations will find attached document COM(2021) 353 final.

Encl.: COM(2021) 353 final

10285/21

## TFUK EN

EUROPEAN

COMMISSION

Brussels, 29.6.2021
COM(2021) 353 final

2021/0174 (NLE)

Proposal for a

**COUNCIL DECISION**

**on the position to be taken on behalf of the European Union, for the period 2021-2026, in**

**the Specialised Committee on Fisheries established by the Trade and Cooperation**
**Agreement between the European Union and the European Atomic Energy Community,**

**of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the**

**other part**

# **EN EN**

**EXPLANATORY MEMORANDUM**

**1.** **S** **UBJECT OF THE PROPOSAL**

The proposal is for a Council decision establishing the position to be taken on the EU’s behalf
in the Specialised Committee on Fisheries established under Article 8(1)(q) of the Trade and
Cooperation Agreement between the European Union and the European Atomic Energy
Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland,

–
of the other part [1] (Trade and Cooperation Agreement for the period 2021 2026. This position
covers the tasks of the Specialised Committee on Fisheries that involve the adoption of acts
having legal effects under the Trade and Cooperation Agreement.

**2.** **C** **ONTEXT OF THE PROPOSAL**

**2.1.** **The EU-UK Trade and Cooperation Agreement**

The Trade and Cooperation Agreement sets out preferential arrangements in areas such as
trade in goods and in services, digital trade, intellectual property, public procurement, aviation
and road transport, energy, fisheries, social security coordination, law enforcement and
judicial cooperation in criminal matters, thematic cooperation and participation in Union
programmes. Its provisions aim to ensure a level playing field and respect for fundamental
rights. The Trade and Cooperation Agreement applied provisionally from 1 January 2021 and
entered into force on 1 May 2021.

**2.2.** **The Specialised Committee on Fisheries**

Article 8(1)(q) of the Trade and Cooperation Agreement establishes the Specialised
Committee on Fisheries. Article 508 of the Trade and Cooperation Agreement lists, in a nonexhaustive manner, the tasks and areas of competence of the Specialised Committee on
Fisheries.

Under Article 8(4) of the Trade and Cooperation Agreement, the Specialised Committee on
Fisheries in its area of competence has the power to:

    - monitor and review the implementation and ensure the proper functioning of the
Trade and Cooperation Agreement or any supplementing agreement;

    - assist the Partnership Council in the performance of its tasks and, in particular, report
to the Partnership Council and carry out any task assigned to them by it;

    - adopt decisions, including amendments, and recommendations on all matters where
this Agreement or any supplementing agreement so provides or for which the
Partnership Council has delegated its powers to a Specialised Committee in
accordance with point (f) of Article 7(4) of the Trade and Cooperation Agreement;

    - discuss technical issues arising from the implementation of this Agreement or any
supplementing agreement;

    - provide a forum for the Parties to exchange information, discuss best practices and
share implementation experience;

    - establish, supervise, coordinate and dissolve working groups; and

1 OJ L149, 30.4.2021, p. 10-2539.

# EN 1 EN

    - provide a forum for consultation in line with Article 738(7) of the Trade and
Cooperation Agreement.

Under Article 8(10) of the Trade and Cooperation Agreement, and by derogation from Article
8(9) of the Trade and Cooperation Agreement, the Specialised Committee on Fisheries may
adopt and subsequently amend its own rules that shall govern its work.

Under Article 508(1) of the Trade and Cooperation Agreement, the Specialised Committee on
Fisheries may in particular:

    - provide a forum for discussion and cooperation on sustainable fisheries management;

    - consider developing multi-year conservation and management strategies as the basis
for the setting of TACs and other management measures;

    - develop multi-year strategies for the conservation and management of non-quota
stocks;

    - consider fisheries management and conservation measures, including emergency
measures and measures to ensure selectivity of fishing;

    - consider approaches for collecting data for science and fisheries management
purposes, for sharing such data (including information relevant to monitoring,
controlling and enforcing compliance), and for consulting scientific bodies on the
best available scientific advice;

    - consider measures to ensure compliance with the applicable rules, including joint
control, monitoring and surveillance programmes and the exchange of data to
facilitate monitoring uptake of fishing opportunities and control and enforcement;

    - develop guidelines for the setting of provisional TACs for special stocks;

    - make preparations for annual consultations;

    - consider matters relating to the designation of ports for landings, including
facilitating timely notification by the Parties of such designations and of any changes
to those designations;

    - establish timelines for notifying new fisheries management measures and for
communicating the lists of vessels for which authorisations or licences to fish are
sought, as well as the notice to the other Party before setting or amending total
allowable catches (TACs) for the stocks listed in Annex 37 to the Trade and
Cooperation Agreement;

    - provide a forum for consultations on further specific access conditions for: (a) the
fishing opportunities agreed; (b) any multi-year strategies for non-quota stocks; and
(c) any technical and conservation measures and a forum for consultation on the
issues addressed in Article 506(4) of the Trade and Cooperation Agreement;

    - develop guidelines to support the practical application of access to waters (Article
500 of the Trade and Cooperation Agreement);

    - develop a mechanism for voluntary in-year transfers of fishing opportunities between
the Parties; and

    - consider the application and implementation of Article 502 on specific access
arrangements for the Bailiwick of Guernsey, the Bailiwick of Jersey and the Isle of
Man, and consider the application and implementation of Article 503 of the Trade

# EN 2 EN

and Cooperation Agreement on notification periods for the importation and direct
landing of fishery products.

**2.3.** **The envisaged acts of the Specialised Committee on Fisheries**

Under Article 508(2) of the Trade and Cooperation Agreement, the Specialised Committee on
Fisheries may adopt acts or measures, including decisions and recommendations:

    - recording matters agreed by the Parties following consultations under Article 498 of
the Trade and Cooperation Agreement;

    - on any of the matters referred to in points (b), (c), (d), (e), (f), (g), (i), (j), (l), (m) and
(n) in paragraph 1 of Article 508 of the Trade and Cooperation Agreement;

    - amending the list of pre-existing international obligations referred to in Article
496(2) of the Trade and Cooperation Agreement;

    - on any other aspect of cooperation on sustainable fisheries management under the
fisheries heading of the Trade and Cooperation Agreement; and

    - on the modalities of a review under Article 510 of the Trade and Cooperation
Agreement Trade and Cooperation Agreement.

The purpose of such measures will be to implement the fisheries heading of the Trade and
Cooperation Agreement.

**3.** **P** **OSITION TO BE TAKEN ON THE** **EU'** **S BEHALF**

Pursuant to Article 218(9) of the Treaty on the Functioning of the European Union (TFEU),
the Council shall adopt, on a proposal from the Commission, the position to be adopted on
behalf of the Union in the Specialised Committee on Fisheries, on decisions adopted under
Article 508(2) of the Trade and Cooperation Agreement.

Positions within the Specialised Committee on Fisheries should be established using a twotier approach. First, a Council Decision should set out the guiding principles and orientations
of the EU's position on a multi-annual basis. Second, for each meeting where the Specialised
Committee on Fisheries may be called upon to adopt acts or measures having legal effects, the
position should be supplemented by non-papers prepared by the Commission and discussed in
the Council Working Party.

This proposal aims to set out the EU's position within the Specialised Committee on Fisheries.
The proposal implements the principles and orientations of the common fisheries policy
(CFP) as laid down in Regulation (EU) No 1380/2013, in particular its Articles 2, 28 and 33.
It also implements the provisions of multi-annual plans as laid down in Regulation (EU)
2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a
multiannual plan for demersal stocks in the North Sea [2] and Regulation (EU) 2019/472
establishing a multiannual plan for stocks fished in the Western Waters [3] .

2 Regulation (EU) 2018/973 of the European Parliament and of the Council of 4 July 2018 establishing a
multiannual plan for demersal stocks in the North Sea and the fisheries exploiting those stocks,
specifying details of the implementation of the landing obligation in the North Sea and repealing
Council Regulations (EC) No 676/2007 and (EC) No 1342/2008, OJ L 179, 16.7.2018, p. 1–13.
3 Regulation (EU) 2019/472 of the European Parliament and of the Council of 19 March 2019
establishing a multiannual plan for stocks fished in the Western Waters and adjacent waters, and for
fisheries exploiting those stocks, amending Regulations (EU) 2016/1139 and (EU) 2018/973, and

# EN 3 EN

The proposal aligns with the objectives and principles established in Article 494 of the Trade
and Cooperation Agreement and takes account of the specific characteristics of the fisheries
heading in the Trade and Cooperation Agreement. It also incorporates the standard process for
the in-year specifications of the EU’s position to be taken in the Specialised Committee on
Fisheries.

In line with Article 218(10) TFEU and Council Decision (EU) 2021/689 [4], the European
Parliament is to be immediately and fully informed of the activities of the Specialised
Committee on Fisheries, subject to the necessary arrangements in order to preserve
confidentiality. As a general rule, the Commission will provide the information to the
European Parliament through the responsible parliamentary committee. Such information
should include the briefing and debriefing before and after meetings of the Specialised
Committee on Fisheries, as well as all documents pertaining to its meetings at the same time
the Commission shares them with the Council.

These working modalities are to be based on the principle of mutual sincere cooperation
between the Union institutions, as enshrined in Article 13(2) TEU.

**4.** **L** **EGAL BASIS**

**4.1.** **Procedural legal basis**

_4.1.1._ _Principles_

Article 218(9) of the TFEU provides for a Council decision 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_ .’

‘Acts having legal effects’ include acts that have legal effects by virtue of the rules of
international law governing the body in question, and instruments that do not have a binding
effect under international law, but are ‘capable of decisively influencing the content of the
legislation adopted by the Union legislature’ [5] .

_4.1.2._ _Application to the present case_

The Specialised Committee on Fisheries is a body set up by an international agreement,
namely the Trade and Cooperation Agreement.

The measures adopted by the Specialised Committee on Fisheries may be binding on the
Parties in accordance with Article 10 of the Trade and Cooperation Agreement, which
provides that: ‘The decisions adopted by the Partnership Council, or, as the case may be, by a
Committee, shall be binding on the Parties and on all the bodies set up under this Agreement
and under any supplementing agreement, including the arbitration tribunal referred to in Title
I of Part 6. Recommendations shall have no binding force.’

repealing Council Regulations (EC) No 811/2004, (EC) No 2166/2005, (EC) No 388/2006, (EC) No
509/2007 and (EC) No 1300/2008, OJ L 83, 25.3.2019, p. 1–17.
4 Council Decision (EU) 2021/689 of 29 April 2021 on the conclusion, on behalf of the Union, of the
Trade and Cooperation Agreement between the European Union and the European Atomic Energy
Community, of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the
other part, and of the Agreement between the European Union and the United Kingdom of Great Britain
and Northern Ireland concerning security procedures for exchanging and protecting classified
information, OJ L 149, 30.4.2021, p. 2-9.
5 Judgment of the Court of Justice of 7 October 2014, Germany v Council, C-399/12,
ECLI:EU:C:2014:2258, paragraphs 61 to 64.

# EN 4 EN

Recommendations and other acts or measures adopted by the SCF, may be capable of
decisively influencing the content of the legislation adopted by the Union legislature, even if
they do not have a binding effect under international law.The acts or measures adopted by the
Specialised Committee on Fisheries will not supplement or amend the institutional framework
of the Trade and Cooperation Agreement.

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 for which a position is taken on the Union's
behalf. If it pursues two aims or has two components, and if one of those aims or components
can be identified as the main one, meaning that the other is 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.

For an envisaged act that pursues a number of objectives simultaneously, or that has several
components that are inseparably linked without one being incidental to the other, the
substantive legal basis of a decision under Article 218(9) TFEU will have to include,
exceptionally, the various corresponding legal bases.

_4.2.2._ _Application to the present case_

The main objective and content of the envisaged decision relate to fisheries. Regulation (EU)
No 1380/2013 is the legal basis setting out the principles to be reflected in this position.

Therefore, the proposed Decision is based on Article 43 TFEU.

**4.3.** **Conclusion**

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

# EN 5 EN

2021/0174 (NLE)

Proposal for a

**COUNCIL DECISION**

**on the position to be taken on behalf of the European Union, for the period 2021-2026, in**

**the Specialised Committee on Fisheries established by the Trade and Cooperation**
**Agreement between the European Union and the European Atomic Energy Community,**

**of the one part, and the United Kingdom of Great Britain and Northern Ireland, of the**

**other part**

**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) On 29 April 2021, the Council adopted Decision (EU) 2021/689 [6] on the conclusion of
the Trade and Cooperation Agreement between the European Union and the European
Atomic Energy Community, of the one part, and the United Kingdom of Great Britain
and Northern Ireland, of the other part [7] (the ‘Trade and Cooperation Agreement’). The
Trade Cooperation Agreement entered into force on 1 May 2021.

(2) Article 8(1)(q) of the Trade and Cooperation Agreement establishes the Specialised
Committee on Fisheries. Its competences are set out in Article 8(4) of the TCA.

(3) Article 8(4)(f) of the Trade and Cooperation Agreement empowers the Specialised
Committee on Fisheries to establish, supervise, coordinate and dissolve Working
Groups.

(4) In accordance with Article 8(10) of the Trade and Cooperation Agreement, and by
derogation from Article 8(9), the Specialised Committee on Fisheries may adopt and
subsequently amend its own rules that shall govern its work.

(5) Article 508 of the Trade and Cooperation Agreement lists, in a non-exhaustive
manner, the tasks and areas of competence of the Specialised Committee on Fisheries.

(6) The Specialised Committee on Fisheries is responsible for the adoption of measures,
including decisions and recommendations, in support of the objectives of Article 494
of the Trade and Cooperation Agreement, in particular of cooperation with a view to
ensuring that fishing activities for shared stocks in the Parties’ waters are
economically sustainable in the long-term and contribute to achieving economic and
social benefits, while fully respecting the rights and obligations of independent coastal
States as exercised by the Parties, and the objective of exploiting shared stocks at rates
intended to maintain and progressively restore populations of harvested species above

6 OJ L 149, 30.4.2021, p. 2.
7 OJ L 149, 30.4.2021, p. 10.

# EN 6 EN

biomass levels that can procude the maximum susainable yield. Such measures may
become binding upon the Union.

(7) Regulation (EU) No 1380/2013 of the European Parliament and of the Council [8]
provides that the Union is to ensure that fishing and aquaculture activities are
environmentally sustainable in the long-term and are managed in a way that is
consistent with the objectives of achieving economic, social and employment benefits,
and of contributing to the availability of food supplies. It provides that the Union is to
take management and conservation measures based on best available scientific advice,
to support the development of scientific knowledge and advice, to gradually eliminate
discards and to promote fishing methods that contribute to more selective fishing and
the avoidance and reduction, as far as possible, of unwanted catches, to fishing with
low impact on marine ecosystem and fishery resources. Regulation (EU)
No 1380/2013 specifically provides that those objectives and principles are to be
applied by the Union in the conduct of its external fisheries relations.

(8) It is appropriate to establish the position to be taken on behalf of the Union in the
meetings of the Specialised Committee on Fisheries, in regard of acts of the
Specialised Committee on Fisheries that are binding on the Union or are capable of
decisively influencing the content of Union law.

(9) The European Parliament is to be immediately and fully informed, as provided for in
Article 218(10) TFEU, to allow it to exercise fully its prerogatives in accordance with
the Treaties.

(10) In view of the evolving nature of fishery resources covered by the Trade and
Cooperation Agreement and the consequent need for the position of the Union to take
account of new developments, including new scientific and other relevant information
presented before or during the meetings of the Specialised Committee on Fisheries,
procedures should be established, in line with the principle of sincere cooperation
among the Union institutions enshrined in Article 13(2) of the Treaty on European
Union, for the year-to-year specification of the Union position for the period 20212026,

HAS ADOPTED THIS DECISION:

_Article 1_

The position to be taken on behalf of the Union in the meetings of the Specialised Committee
on Fisheries established by Article 8(1)(q) of the Trade and Cooperation Agreement, shall be
set out in Annexes I and II.

_Article 2_

The specifications of the Union position to be taken in the meetings of the Specialised
Committee on Fisheries referred to in Article 1 shall be set out in accordance with Annex III.

8 Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on
the Common Fisheries Policy, amending Council Regulations (EC) No 1954/2003 and (EC)
No 1224/2009 and repealing Council Regulations (EC) No 2371/2002 and (EC) No 639/2004 and
Council decision 2004/585/EC (OJ L 354, 28.12.2013, p. 22).

# EN 7 EN

_Article 3_

The Union position referred to in Article 1 shall be assessed and, where appropriate, revised
by the Council upon a proposal from the Commission, by 30 June 2026.

This Decision is addressed to the Commission.

Done at Brussels,

_For the Council_

_The President_

# EN 8 EN