CELEX: 52020PC0438
Language: en
Date: 2020-08-31
Title: Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union at meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean

EUROPEAN COMMISSION
            Brussels, 31.8.2020
            COM(2020) 438 final
            2020/0210(NLE)
            Proposal for a
            COUNCIL DECISION
            on the position to be taken on behalf of the European Union at meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean
            
               
         
         
            
               EXPLANATORY MEMORANDUM
            
            
               1.Subject matter of the proposal
            
            
               This proposal concerns the decision establishing the position to be taken on the Union's behalf at meetings of the Parties to Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean in connection with the envisaged adoption of conservation and management measures. 
            
            
               2.Context of the proposal
            
            
               2.1.The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean
            
            
               The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (‘Agreement’) aims to prevent unregulated fishing in the high seas portion of the Central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks. The Agreement is expected to enter into force later this year.
            
            
               The Union is a party to the Agreement
                  1
               .
            
            
               2.2.The meeting of the Parties 
            
            
               The meeting of the Parties is the decision-making body under the Agreement, which shall meet every two years or more frequently if it so decides. Decisions on questions of procedure are taken by majority and decision on questions of substance are taken by consensus. The Union has participation and voting rights.
            
            
               2.3.Decisions by the meeting of the Parties
            
            
               The meeting of the Parties has the authority to adopt conservation and management measures and these are binding on the contracting parties. 
            
            
               3.Position to be taken on the Union's behalf
            
            
               It is proposed that the position to be adopted on behalf of the Union at the meetings of the Parties is established according to a two-tier approach. A Council Decision will set out the guiding principles and orientations of the Union’s position on a multiannual basis, and it is subsequently adjusted for each meeting by Commission non-papers to be discussed in the Council Working Party.
            
            
               This approach is currently also taken in regional fisheries management organisations (RFMOs) and the position that is to be taken on behalf of the Union in those meetings.
            
            
               The present decision incorporates the principles and orientations of the common fisheries policy (CFP), as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council
                  2
               , also taking into account the objectives set in the Commission Communication on the external dimension of the CFP.
                  3
                It also takes into consideration the Council conclusions on Oceans and Seas, including the Arctic
                  4
               , the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission on ‘An integrated European Union policy for the Arctic’
                  5
               , and the Council conclusions
                  6
                on the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the Commission on ‘International ocean governance: an agenda for the future of oceans’
                  7
               .
            
            
               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’.
            
         
         
            
               ‘Acts having legal effects’ include acts that have legal effects by virtue of the rules of international law governing the body in question. 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’
                  8
               .
            
            
               4.1.2.Application to the present case
            
            
               The meeting of the Parties is a body set up by an agreement, namely the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean.
            
            
               The acts which the meeting of the Parties is called upon to adopt constitute acts having legal effects. The envisaged acts of the meeting of the Parties will be binding under international law and are capable of decisively influencing the content of EU legislation, namely:
            
            
               ·Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing
                  9
               ; 
            
            
               ·Council Regulation (EC) No 1224/2009 establishing a Union control system for ensuring compliance with the rules of the CFP
                  10
               ; and 
            
            
               ·Council Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets
                  11
               .
            
            
               The envisaged acts do not supplement or amend the institutional framework of the 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 in respect of which a position is taken on the Union's behalf. If the envisaged act pursues two aims or has two components and if one of those aims or components is identifiable as the main one, whereas 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.
            
            
               4.2.2.Application to the present case
            
            
               The main objective and content of the envisaged acts relate to fisheries. Regulation (EU) No 1380/2013 is the legal basis setting out the principles to be reflected in this position.
            
            
               Therefore, the substantive legal basis of the proposed Decision is Article 43(2) TFEU. 
            
            
               4.3.Conclusion
            
            
               The legal basis of the proposed decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU.
            
            
               2020/0210 (NLE)
            
            
               Proposal for a
            
            
               COUNCIL DECISION
            
         
         
            
               on the position to be taken on behalf of the European Union at meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean
            
            
               THE COUNCIL OF THE EUROPEAN UNION,
            
            
               Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2), in conjunction with Article 218(9) thereof,
            
            
               Having regard to the proposal from the European Commission,
            
            
               Whereas:
            
            
               (1)The Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (‘Agreement’) was concluded by the Union by Council Decision (EU) 2019/407
                  12
               . The Agreement is expected to enter into force later this year.
            
            
               (2)The meeting of the Parties is responsible for the adoption of measures designed to ensure the Agreement’s implementation in order to achieve the objective of preventing unregulated fishing in the high seas portion of the Central Arctic Ocean through the application of precautionary conservation and management measures as part of a long-term strategy to safeguard healthy marine ecosystems and to ensure the conservation and sustainable use of fish stocks. Such measures may become binding upon the Union.
            
            
               (3)Regulation (EU) No 1380/2013 of the European Parliament and of the Council
                  13
                 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 also provides that the Union is to apply the precautionary approach to fisheries management, and is to aim to ensure that exploitation of marine biological resources restores and maintains population of harvested species above levels which can produce the maximum sustainable yield. It further provides that the Union is to take management and conservation measures based on the 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. Furthermore, 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.
            
            
               (4)As stated in the Council conclusions on Oceans and Seas, including the Arctic
                  14
               , the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission ‘An integrated European Union policy for the Arctic’
                  15
               , and the Council conclusions
                  16
                on the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission 'International ocean governance: an agenda for the future of oceans'
                  17
               , support for the Agreement and the possible creation of a regional fisheries management organisation or arrangement in the Arctic high seas is an important objective for the Union in order to safeguard the Arctic environment and ensure sustainable development in and around the Arctic region on the basis of international cooperation.
            
            
               (5)It is appropriate to establish the position to be taken on the Union's behalf in the meeting of the Parties to the Agreement for the period 2020-2024, as conservation and management measures under the Agreement will be binding on the Union and capable of decisively influencing the content of Union law, namely, Council Regulations (EC) No 1005/2008
                  18
                and (EC) No 1224/2009
                  19
               , and Regulation (EU) 2017/2403 of the European Parliament and of the Council
                  20
               .
            
            
               (6)In view of the limited knowledge on and nature of fishery resources in the Agreement area, 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 Parties, 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's position for the period 2020-2024.
            
            
               (7)This decision on the position to be taken on behalf of the Union in the meetings of the Parties to the Agreement may be followed at a later stage by a further separate Council decision on the opening of negotiations to establish one or more additional regional or subregional fisheries management organisations or arrangements in the Arctic high seas,
            
            
               HAS ADOPTED THIS DECISION:
            
            
               Article 1
            
            
               The position to be taken on the Union's behalf in the meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (Agreement) is set out in Annex I.
            
            
               Article 2
            
            
               The year-to-year specification of the Union's position to be taken in the meetings of the Parties to the Agreement shall be conducted in accordance with Annex II. 
            
            
               Article 3
            
            
               The Union's position set out in Annex I shall be assessed and, where appropriate, revised by the Council upon a proposal from the Commission, at the latest for the meeting of the Parties to the Agreement in 2025.
            
            
               Article 4
            
         
         
            
               This Decision is addressed to the Commission.
            
            
               Done at Brussels,
            
            
               
                     
                        
                        
                        For the Council
               
               
                     
                        
                        
                        The President
               
            
         
         
            
                  
                     (1)
                  
                        Council Decision (EU) 2019/407 of 4 March 2019 on the conclusion, on behalf of the European Union, of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (OJ L 73, 15.3.2019, p. 1.
               
               
                  
                     (2)
                  
                        Regulation (EU) No 1380/2013 of the European Parliament and of the Council 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).
               
               
                  
                     (3)
                  
                        COM(2011) 424, 13.7.2011.
               
               
                  
                     (4)
                  
                        14249/19, 19.11.2019.
               
               
                  
                     (5)
                  
                        JOIN(2016) 21 final, 27.4.2016.
               
               
                  
                     (6)
                  
                        7348/1/17 REV 1, 24.3.2017.
               
               
                  
                     (7)
                  
                        JOIN(2016) 49 final, 10.11.2016.
               
               
                  
                     (8)
                  
                        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. 
               
               
                  
                     (9)
                  
                        OJ L 286, 29.10.2008, p. 1.
               
               
                  
                     (10)
                  
                        OJ L 343, 22.12.2009, p. 1.
               
               
                  
                     (11)
                  
                        OJ L 347, 28.12.2017, p. 81.
               
               
                  
                     (12)
                  
                        Council Decision (EU) 2019/407 of 4 March 2019 on the conclusion, on behalf of the European Union, of the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (OJ L 73, 15.3.2019, p. 1).
               
               
                  
                     (13)
                  
                        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).
               
               
                  
                     (14)
                  
                        14249/19 of 19.11.2019.
               
               
                  
                     (15)
                  
                        JOIN(2016) 21 final of 27.4.2016.
               
               
                  
                     (16)
                  
                        7348/1/17 REV 1 of 24.3.2017.
               
               
                  
                     (17)
                  
                        JOIN(2016) 49 final of 10.11.2016.
               
               
                  
                     (18)
                  
                        Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 (OJ L 286, 29.10.2008, p. 1).
               
               
                  
                     (19)
                  
                        Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Union control system for ensuring compliance with the rules of the Common Fisheries Policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ L 343, 22.12.2009, p. 1).
               
               
                  
                     (20)
                  
                        Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets, and repealing Council Regulation (EC) No 1006/2008 (OJ L 347, 28.12.2017, p. 81).
               
            
      
    ---documentbreak--- 
      
         
               EUROPEAN COMMISSION
            Brussels, 31.8.2020
            COM(2020) 438 final
            ANNEXES
            to the
            Proposal for a COUNCIL DECISION
            on the position to be taken on behalf of the European Union at meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean
            
               
         
         
            
               ANNEX I
            
            
            
               The position to be taken on the Union’s behalf at meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean   (Agreement)
            
            
            
               1. 
                     PRINCIPLES
            
            
               In the framework of the meetings of the Parties to the Agreement, the Union shall:
            
            
               a)
                     act in accordance with the objectives and principles pursued by the Union within the common fisheries policy as laid down in Regulation (EU) 1380/2013, notably through the precautionary approach as laid down in Article 2(2) of that Regulation, to promote the implementation of an ecosystem-based approach to fisheries management, and to minimise the impact of fishing activities on marine ecosystems and their habitats, as well as, through the promotion of economically viable competitive Union fisheries, to provide a fair standard of living for those who depend on fishing activities and take account of the interests of consumers; 
            
            
               b)
                     work towards an appropriate involvement of stakeholders, including relevant scientific and technical organizations, bodies and programs, as well as indigenous and local knowledge, in the preparation phase of measures of the meetings of the Parties, including in the meetings of scientific experts under the Agreement, and ensure that these measures are in accordance with the Agreement;
            
            
               c)
                     ensure that measures adopted under the Agreement are consistent with international law, and in particular with the provisions of the United Nations Convention on the Law of the Sea (UNCLOS)
                  1
               , the 1995 Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA)
                  2
               , the 1993 Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas
                  3
               , and the 2009 Food and Agriculture Organization Port State Measures Agreement
                  4
               ;
            
            
               d)
                     promote positions consistent with the best practices of regional fisheries management organisations (RFMOs) in the same area;
            
            
               e) 
                     seek consistency and synergy with the policy that the Union is pursuing as part of its bilateral fisheries relations with third countries, and ensure coherence with its other policies notably in the field of external relations, employment, environment, trade, development, research and innovation;
            
            
               f)
                     ensure that the Union’s international commitments are respected;
            
            
               g)
                     be in line with the Council Conclusions of 19 March 2012 on the Commission Communication on the external dimension of the common fisheries policy
                  5
               ;
            
            
               h)
                     aim to create a level playing field for the Union fleet within the Agreement area based on the same principles and standards as those applicable under Union Law, and to promote the uniform implementation of those principles and standards;
            
            
               i)
                     be in line with the Council conclusions on Oceans and Seas, including the Arctic
                  6
               , the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission on ‘An integrated European Union policy for the Arctic’
                  7
               ,  the Council conclusions
                  8
                on the Joint communication by the High Representative of the Union for Foreign Affairs and Security Policy and the European Commission on ‘International ocean governance: an agenda for the future of oceans’
                  9
               , and promote measures to support and enhance the effective implementation of the Agreement as a contribution to sustainable management of oceans in all its dimensions;
            
            
               j) 
                     promote coordination between the Agreement and existing RFMOs and regional sea conventions (RSCs), in particular the North East Atlantic Fisheries Commission (NEAFC), and cooperation with global organisations, as applicable, within their mandates, where appropriate; 
            
            
               k)
                     actively support the establishment of a Joint Program of Scientific Research and Monitoring with the aim of improving Parties’ collective understanding of the ecosystems in the High Seas of the Central Arctic Ocean and, in particular, of determining whether fish stocks might exist in now or in the future that could be harvested on a sustainable basis and the possible impacts of such fisheries on these ecosystems;
            
            
               l)
                     ensure compatibility between conservation and management measures established for the same stocks in the waters under national jurisdiction and the measures adopted in respect of the high seas in accordance with Article 118 UNCLOS and Article 8 UNFSA;
            
            
               m)
                     ensure consistency with the Union’s interest in the Arctic as a region of growing strategic importance.
            
         
         
            
               2.
                     ORIENTATIONS
            
            
               Where appropriate, the Union shall endeavour to support the adoption of conservation and management measures, based on the best scientific advice available and the precautionary approach, by the meetings of the Parties to the Agreement.
            
            
               ANNEX II
            
            
               Year to year specification of the Union’s position to be taken in the meetings of the Parties to the Agreement to Prevent Unregulated High Seas Fisheries in the Central Arctic Ocean (Agreement)
            
            
            
               Before each meeting of the Parties to the Agreement, when that body is called upon to adopt decisions having legal effects on the Union, the necessary steps shall be taken so that the position to be expressed on the Union's behalf takes account of the latest scientific and other relevant information transmitted to the Commission, in accordance with the principles and orientations set out in Annex I.
            
            
               To this effect, and based on that information, the Commission shall transmit to the Council in sufficient time before each meeting of the Parties to the Agreement, a written document setting out the particulars of the proposed specification of the Union’s position for discussion and endorsement of the details of the position to be expressed on the Union's behalf.
            
            
               If in the course of a meeting of the Parties to the Agreement it is impossible to reach an agreement, including on the spot, in order for the Union’s position to take account of new elements, the matter shall be referred to the Council or its preparatory bodies.
            
            
            
               _____________________
            
            
         
         
            
                  
                     (1)
                  
                        OJ L 179, 23.6.1998, p. 3.
               
               
                  
                     (2)
                  
                        OJ L 189, 3.7.1998, p. 16.
               
               
                  
                     (3)
                  
                        OJ L 177, 16.7.1996, p. 26.
               
               
                  
                     (4)
                  
                        OJ L 191, 22.7.2011, p. 3.
               
               
                  
                     (5)
                  
                        7087/12 REV 1 ADD 1 COR 1.
               
               
                  
                     (6)
                  
                        14249/19 of 19.11.2019.
               
               
                  
                     (7)
                  
                        JOIN(2016) 21 final of 27.4.2016.
               
               
                  
                     (8)
                  
                        7348/1/17 REV 1 of 24.3.2017.
               
               
                  
                     (9)
                  
                        JOIN(2016) 49 final of 10.11.2016.