1 Reform of the Common
Fisheries Policy
| (a)
(33023)
12519/11
COM(11) 417
(b)
(33027)
12514/11
+ ADDs 1-3
COM(11) 425
|
Commission Communication — Reform of the Common Fisheries Policy
Draft Regulation on the Common Fisheries Policy
|
| Legal base | (a) —
(b) Article 43(2) TFEU: co-decision; QMV
|
| Documents originated | 13 July 2011
|
| Deposited in Parliament | 18 July 2011
|
| Department | Environment, Food & Rural Affairs
|
| Basis of consideration | EM of 16 August 2011
|
| Previous Committee Report | None, but see footnotes
|
| To be discussed in Council | Decision expected by mid 2013
|
| Committee's assessment | Politically important
|
| Committee's decision | For debate in European Committee A
|
Background
1.1 The conservation aspects of the Common Fisheries Policy (CFP)
came into operation in 1983, and have sought to maintain stock
levels by setting annual total allowable catches (TACs) apportioned
between Member States according to a fixed key. These have been
accompanied by so-called technical conservation provisions (dealing
with such issues as mesh sizes, and minimum landing sizes), as
well as by structural measures seeking to bring the catching capacity
of the fleet into line with the fishing opportunities available
to it. However, despite various changes made over the years, including
the reforms introduced in 2002, there
has been general agreement that the Policy has not achieved its
objectives, and that, as a result, many of the Community's fish
stocks are in a parlous state. The Commission believed that, in
order to bring about the dramatic change needed to reverse the
situation, a whole-scale and fundamental reform was required,
rather than the piecemeal incremental reforms made earlier, and
it therefore put forward in April 2009 a Green Paper[1]
to stimulate a public debate on the future of the CFP, its ultimate
aim being to put forward a new basic regulation in the context
of the new Financial Framework after 2013.
1.1 In the light of the responses to that Green Paper
(which were summarised in a subsequent Communication),[2]
the Commission has now produced a number of documents relating
to the reform of the CFP. These comprise a general Communication
and draft Regulation (documents (a) and (b)), together with two
further Communications — one reporting on the operation
of current measures for the conservation of fisheries resources,[3]
and the other dealing with the external dimension of the CFP[4]
— and a separate draft Regulation[5]
on the common organisation of the markets in fishery and aquaculture
products.
The current documents
DOCUMENT (A)
1.2 The Commission notes that the failings identified
in its Green Paper included over-fishing of stocks; the fragile
economic state of part of the fleet, despite high levels of subsidy;
and the precarious situation of many coastal communities which
are dependent on fisheries. At the same time, it says that the
CFP has enormous potential to bring about sustainable fisheries
which respect the ecosystem, whilst providing high quality, healthy
products for European consumers, thriving coastal communities,
and profitable producing and processing sectors. It adds that
sustainability is at the heart of its proposed reform, and in
particular that fishing should be at levels which do not endanger
the reproduction of stocks and which provide high long-term yields,
thereby freeing the catching sector from dependence on public
support, and making it easier to achieve stable prices and to
reduce fleet capacity.
1.3 The Commission then identifies the following
elements in its proposed reform.
Sustainable fishing
1.4 The Commission says that, in accordance with
the objective set at the 2002 World Summit on Sustainable Development,
fish stocks should by 2015 be exploited at maximum sustainable
yields; that the discarding of fish should be eliminated,
and industry obliged to land catches of regulated species;
that increased reliance should be placed on multi-annual and
multi-stock management plans (with the latter replacing the
current single stock approach); that management must be based
on sound scientific advice, incorporating an ecosystem
and precautionary approach; that science-industry partnerships
to improve the quality and availability of data should be encouraged;
and that Member States should be obliged to provide reliable
data relating to both the formulation of policy and its subsequent
implementation and enforcement through an integrated European
information system.
Industry and jobs
1.5 The Commission says that, in order to achieve
a strong and profitable industry, a system of transferable
fishing concessions within individual Member States should
be phased in (except for vessels of less than 12 metres which
use fixed gears), adding that experience suggests this would reduce
fishing capacity and increase economic viability at no cost to
the taxpayer, and lead to a 20% increase in incomes by 2022. It
also considers that such a system would improve the performance
of the processing industry, and offer a social solution for those
wishing to leave the industry, who would be able to sell their
rights to others. More generally, the Commission suggests that
bringing the catching sector back to profitably would help to
make fishing vessels safer and better working places, and so improve
job attractiveness and decent working conditions, which it
says are particularly important for many small-scale coastal fleets;
and it notes the encouragement given to Member States to ratify
a relevant convention adopted in 2007 by the International Labour
Organisation.
1.6 The Communication also addresses the need to
promote the sustainable development of aquaculture, which
it says is essential to meet the growing global demand for fish
and seafood. It notes the variable nature of aquaculture in the
EU, as well as its role in underpinning sustainable economic growth
in rural and coastal communities and its contribution to environmental
preservation and protection. It also says that, since choices
at national level may have an impact beyond national borders,
Member States should be required to prepare national strategic
plans, based on a set of EU guidelines, in order to encourage
economic activity and improve competitiveness, to support sustainable
development and innovation, and to stimulate diversification.
Thriving coastal communities
1.7 The Commission says that it is committed to working
actively to promote growth and jobs in coastal fisheries and aquaculture-dependent
communities, and that this calls for specific measures, supporting
green, smart and inclusive growth, sand contributing to sustainable,
low-impact fishing and aquaculture, innovation, income diversification,
re-conversion, improvement of science and a culture of compliance.
Satisfying informed consumers
1.8 The Commission believes that the marketing
of products must do more to take into account the interests
of consumers and reinforce confidence in those products. It says
that this will involve enhancing the publication of information
on product and production characteristics, including where necessary
voluntary labelling. It says that producer organisations will
be equipped to plan their production more successfully with annual
plans which reconcile sustainable fishing activities with adjusting
supply more accurately to demand, in terms of both quantity and
quality. It also suggested that improved market intelligence
will enhance understanding of the markets and consumer demand.
Better governance through regionalisation
1.9 The Commission says that a centralised top-down
approach makes it difficult to adapt the CFP for different areas,
and that Member States and the industry itself will need to take
more responsibility for the management of fisheries resources
and its relationship with other activities. It therefore considers
that EU fisheries legislation adopted centrally should focus on
objectives, targets, minimum common standards and results, and
the timetables for delivery, but with Member States having the
flexibility to decide on other management measures under the supervision
of the Commission. It suggests that Member States could, for example,
adopt the desired mix of technical conservation and anti-discard
measures, which would then be implemented in their national legislation,
and that regionalisation should extend as far as self-management
by the fishing industry, increasing fishermen's involvement in
policies and thus contributing to better compliance. It says that
it intends to boost the role of producer organisations, and to
provide them with additional opportunities for sustainable resource
exploitation, with effective organisations becoming active players
in managing their members' fishing activities and stabilising
markets.
1.10 The Commission says that it proposes to maintain
and extend the role of Advisory Councils in advising on regional
conservation policy, and that those activities could be extended
to other areas of marine management which affect fishing. It also
believes that the specific nature of the aquaculture sector requires
a focussed body for consultation on policies which might affect
the sector, and it therefore proposes to set up a new Advisory
Council for Aquaculture. In addition, it says that, for issues
not covered by the Advisory Councils, it wants to ensure the broadest
possible involvement of all interested parties in a cost-effective
manner, and that it intends to develop a flexible, streamlined
mechanism to deliver this. Finally, it stresses that the success
of the proposed reform depends greatly on compliance by operators
and effective enforcement by public authorities. It sees the proposal
building on the new Control and IUU Regulations,[6]
and it also notes the concept of conditionality, where the availability
of finance for either Member States or individual operators is
linked to compliance with CFP rules.
Smarter financing
1.11 The Commission suggests that future EU financial
support should be strictly geared to achieving the objectives
of the reformed CFP, and that future public funding for the sector
needs to be reformed and simplified (and also fully aligned with
the Europe 2020 objectives). It says that it intends to modernise
the intervention regime under the Common Market Organisation,
since the present system no longer reflects the changing balance
of supply and demand, with it no longer being justifiable to spend
public money to destroy fish.
Projecting the CFP principles internationally
1.12 The Commission observes that the EU's external
actions must be consistent with the principles and objectives
of the CFP, and it notes that it has addressed these issues in
a separate Communication. It says that the EU will play a stronger
role in Regional Fisheries Management Organisations, and in multilateral
bodies, so as to strengthen them; that it will also promote enhanced
dialogue with key partners; and step up actions to tackle illegal,
unreported and unregulated activities and reduce fleet capacity.
In particular, it envisages Sustainable Fisheries Agreements with
non-EU countries being reoriented so as to ensure that EU vessels
only fish resources which the partner country cannot, or does
not wish, to fish itself, with there also being a greater focus
on science, monitoring, control and surveillance, together with
a clause relating to the respect of human rights.
DOCUMENT (B)
1.13 Although this draft Regulation would repeal
much of existing legislation in this area, it goes on to re-enact
many of its provisions, whilst giving legal effect to the changes
proposed in the Commission's Communication, notably as regards
the discarding of unwanted fish, transferable fishing concessions,
and aquaculture.
1.14 The proposal begins by setting a number of general
objectives relating to long-term sustainability, the use of the
precautionary approach to achieve exploitation at the maximum
sustainable yield by 2015, and to implement an ecosystem-based
approach to fisheries management, and then identifies certain
specific more objectives, including eliminating unwanted catches
of commercial stocks and ensuring that all such catches are landed;
providing conditions for efficient fishing activities within an
economically viable and competitive industry; promoting the development
of EU aquaculture; contributing to a fair standard of living for
those who depend upon fishing; taking into account the interests
of consumers; and ensuring systematic and harmonised collection
and management of data.
1.15 These objectives are accompanied by a statement
of the principles of good governance, based upon:
- clear definition of responsibilities
at EU, national, regional and local levels;
- establishment of measures in accordance with
best available scientific advice, and a long-term perspective;
- broad involvement of stakeholders at all stages;
- the primary responsibility of the flag state;
and
- consistency with the integrated maritime policy
and other EU policies.
The remainder of the proposal deals in turn with
access to waters; conservation measures; access to resources;
management of fishing capacity; the science base; external policy
aquaculture; the common market organisation; control and enforcement;
financial instruments; and Advisory Councils.
ACCESS TO WATERS
1.16 The proposal confirms the principle that EU
fishing vessels have equal access to waters and resources in all
Union waters, other than those up to 12 nautical miles from baselines,
where Member States may continue until 31 December 2022 to restrict
fishing to those vessels which traditionally fish those waters
from adjacent ports. However, vessels from other Member States
may also continue to fish in those waters under existing neighbourhood
agreements, which specify the geographical areas and species concerned.[7]
CONSERVATION MEASURES
1.17 The proposal would enable the adoption of multi-annual
management plans; the establishment of targets for sustainable
exploitation; measures to adapt the number and type of vessels
to available fishing opportunities; the provision of economic
or other incentives to more selective or low impact fishing; the
fixing of fishing opportunities; the adoption of technical measures;
the adoption of measures to oblige the landing of all catches;
and the conducting of pilot projects on alternative fishing management
techniques. It also defines technical measures as including mesh
sizes and the use fishing gear; restrictions on the construction
of fishing gear (including those which improve selectivity or
reduce the incidental capture of endangered, threatened and protected
species); the prohibition of certain gears in certain areas or
seasons; the prohibition or restriction of fishing activities
in certain zones and/or periods; and measures to reduce the impact
of fishing on marine ecosystems and non-target species, or to
protect marine biodiversity.
EU measures
1.18 The proposal provides for multi-annual conservation
plans to achieve stock levels above those producing the maximum
sustainable yield to be established as a priority, and for the
fixing of fishing opportunities and measures to prevent transgressions:
and it requires such plans to be based on the precautionary approach,
and, where possible, to cover either single stock fisheries or
those exploiting a mixture of stocks, according to interactions
between the stocks. It requires a multi-annual plan to specify
its scope (in terms of the stock or fishery involved); its objectives,
including quantifiable targets, such as mortality rates, spawning
stock biomass and the stability of catches; a clear timetable;
technical measures (including those to eliminate unwanted catches);
quantifiable indicators for the monitoring and assessment of progress;
and the minimisation of the impact of fishing on the ecosystem.
These plans must also comply with EU environmental legislation,
with the Commission being given the power to take measures where
there is a serious threat to marine biological resources or to
marine ecosystems.
1.19 The proposal goes on to:
- specify the need for technical
measures to improve the selection of fish sizes (and, where appropriate)
species, to reduce catches of under-sized fish, to reduce catches
of unwanted marine organisms; and to mitigate the impact of fishing
gear on the ecosystem and environment;
- require all catches of stocks subject to catch
limits to be brought and retained on board, and recorded and landed,
with this requirement, in the case of species of principal interest
to the UK, coming into force by 1 January 2014 for mackerel and
herring, by 1 January 2015 for cod, hake and sole, and by 1 January
2016 for other species (including haddock, whiting, megrim, anglerfish,
plaice and saithe): at the same time, it also provides for the
establishment of marketing standards for catches in excess of
fixed opportunities to be established, and for Member States to
ensure that their vessels can provide full documentation of all
fishing and processing activities;
- specify that the fishing opportunities allocated
to Member States must ensure relative stability for each stock
or fishery, and allow opportunities for by-catches to be reserved
under the total opportunities.
Regionalisation
1.20 The proposal would authorise Member States to
adopt under a multi-annual plan conservation measures applicable
to their vessels, provided these are compatible with the scope
and objectives of that plan. Such measures would have to be notified
to the Commission, other Member States and the relevant Advisory
Councils, and their compatibility and effectiveness are subject
to assessment by the Commission, which may also adopt default
measures if those taken by Member States are found to be inadequate.
Similarly, Member States may apply technical measures to their
vessels, provided these are compatible with the wider EU objectives,
and are no less stringent than those laid down in EU legislation.
National measures
1.21 The proposal would enable a Member State to
adopt measures in EU waters to conserve fish stocks which are
applicable to its own vessels, again provided these are compatible
with the wider EU objectives, and are no less stringent than those
laid down in EU legislation. In addition, and so long as the EU
has not adopted measures specifically for that area, they may
take non-discriminatory measures within 12 miles of their baseline,
but, where these could affect vessels of another Member State,
the Commission, the Member State concerned and the relevant Advisory
Council must first be consulted.
ACCESS TO RESOURCES
1.22 The proposal requires each Member State to establish
by 2013 a system of transferable fishing concessions for all its
fishing vessels with a length of 12 metres or more, and for those
under 12 metres fishing with towed gear,[8]
and to allocate individual fishing opportunities to the holders
of such concessions: and, in doing so, they may set fees, and
provide incentives for vessels using gear which eliminates unwanted
by-catches. A transferable fishing concession also establishes
an entitlement to use an allocated individual fishing opportunity,
but, although such concessions may be pooled for collective management,
they may only be allocated by a Member State to an owner of a
vessel flying that Member State's flag, and on the basis of transparent
and objective criteria: however, a Member state may allow the
transfer of concessions to and from other Member States. Finally,
Member States must establish and maintain a register of transferable
fishing concessions and individual fishing opportunities.
MANAGEMENT OF FISHING CAPACITY
1.23 The proposal requires Member States to put in
place measures to adjust the fishing capacity of their fleets
in order to achieve an effective balance between that capacity
and fishing opportunities: where a vessel leaves the fleet having
received public aid, its fishing licence and authorisations must
first be withdrawn, and the fishing capacity in question must
not be replaced. The proposal also establishes fishing capacity
ceilings for each Member State, which may not be exceeded at any
time from 1 January 2013, though Member States may request the
Commission to exclude those vessels subject to a transferable
fishing concession. Finally, Member States must record information
on their vessels needed to manage the measures relating to capacity
and make this available to the Commission, which in turn is required
to use this information to set up a Union fishing fleet register,
the contents of which must be made available to all Member States.
SCIENCE BASE FOR FISHERIES MANAGEMENT
1.24 The proposal obliges Member States to collect,
manage and make available the data necessary for ecosystem based
fisheries management, including that which enables an assessment
of the state of marine biological resources, the level of fishing
and its impact on those resources, and the socio-economic performance
of the fisheries. They must also ensure that these data are accurate
and reliable, avoid duplication with that collected from other
sources, are stored safely, and are made available to the Commission:
and they must also carry out this activity in the framework of
a multi-annual programme as of 2014, and coordinate it with the
activities of other Member States.
EXTERNAL POLICY
1.25 The proposal provides for the EU to participate
in the activities of international fisheries organisations, to
base its position there on the best available scientific advice,
and to actively contribute to the development of scientific knowledge.
In addition, it would have a duty to cooperate with other parties
in order to strengthen compliance with measures adopted by the
organisation.
1.26 The proposal also lays down provisions relating
to Sustainable Fisheries Agreements with third countries, requiring
these to establish a legal, economic and environmental governance
framework for fishing activities carried out by EU vessels in
the waters of those countries. In particular, it specifies that
EU vessels may only catch the surplus of the allowable catch determined
by the third country on the basis of the best available scientific
advice. Finally, the proposal would require the EU to provide
financial assistance under such Agreements in order to support
part of the cost of the access provided to fisheries resources,
and to help develop the necessary scientific, monitoring, control
and surveillance capacity.
AQUACULTURE
1.27 The proposal requires the Commission to establish
by 2013 non-binding EU strategic guidelines on common priorities
and targets for the development of aquaculture, with the aim of
improving the industry's competitiveness and supporting its development
and innovation, encouraging economic activity, diversifying and
improving the quality of life in coastal and rural areas, and
securing a level playing field for aquaculture operators in relation
to access to waters and space. In addition, an Advisory Council
on Aquaculture would have to be established. Member States would
be required to establish by 2014 a multiannual national strategic
plan by the development of aquaculture, including objectives and
measures to achieve them: in particular, such a plan would have
to achieve administrative simplification, certainty for operators,
indicators for environmental, economic and social sustainability,
and an assessment of any possible cross-border effect.
COMMON MARKET ORGANISATION
1.28 The proposal would require the establishment
of a common market organisation in fishery and aquaculture products
to enable the industry to apply the CFP at the appropriate level,
strengthen the industry's competitiveness, improve market transparency,
and ensure a level playing field for all products marketed by
promoting the sustainable exploitation of fisheries resources.
In particular, such an organisation would have to include market
stabilisation measures, and common marketing standards.
CONTROL AND ENFORCEMENT
1.29 The proposal would require compliance with the
rules of the CFP to be achieved through an effective EU control
system, including the fight against illegal, unreported and unregulated
fishing, and for the system to be based on a global and integrated
approach, the use of modern control technologies for the availability
and quality of data, a risk based approach to the systematic and
automated checking of all relevant data, the development of a
culture of compliance among operators, and the establishment of
effective, proportionate and dissuasive sanctions. It would permit
the Commission and Member States to carry out pilot projects on
new technologies and systems, and enable Member States to require
holders of a licence for fishing vessels over 12 metres in length
to contribute proportionately to the costs of implementing an
EU control system.
FINANCIAL INSTRUMENTS
1.30 The proposal would allow EU financial assistance
to contribute to the achievement of the objectives of the CFP,
subject to a Member State complying with the relevant rules. Similarly,
assistance to operators would be conditional on such compliance,
with serious infringements resulting in temporary or permanent
bans of access to such assistance and/or the application of financial
reductions, so long as the nature, extent and duration of these
are proportionate.
ADVISORY COUNCILS
1.31 The proposal would establish for various geographical
areas or groups of species Advisory Councils composed of representative
fisheries organisations, and they may submit recommendations to
the Commission or Member States concerned, inform them of problems
within their area of competence, and contribute to the collection,
supply and analysis if necessary data. They may also apply for
EU financial assistance.
The Government's view
1.32 In his Explanatory Memorandum of 16 August 2011,
the Parliamentary Under-Secretary for Natural Environment and
Fisheries at the Department for Environment, Food & Rural
Affairs (Mr Richard Benyon)
comments that much of the
proposal relates to an area of long-standing exclusive EU competence,
to which the principle of
subsidiarity does not apply. However, he notes that the Commission
wants to use the new CFP to develop and expand aquaculture production,
with an obligation on Member States to produce a multi-annual
national plan, and the creation an Advisory Council on Aquaculture.
He says that the UK has some concern that this will be used to
intervene in Member State management and provide inappropriate
subsidies in developing areas, and that the Government is sceptical
that increased regulation or intervention under the CFP in this
area can add value, bearing in mind its record on wild fisheries.
Consequently, the UK remains to be convinced that the EU should
extend its competence in this area.
1.33 More generally, he says that the
UK is committed to genuine, fundamental reform,
to achieving healthy fish stocks, a prosperous fishing industry
and a healthy marine environment, and that the proposals are welcome
as a good starting point to undertake radical reform, the need
now being to work with the Commission, other Member States, the
European Parliament, NGOs and others with an interest in fisheries
and the marine environment to improve them. In this regard, he
identifies the following key areas:
- Landing obligation on certain
stocks to end discards.
The Minister says that the wasteful practice of discarding fish
must be brought to an end, and that the Government welcomes the
ambition of the Commission's approach. However, it would prefer
discretion on the most appropriate way to reduce discards rather
than a blanket ban, so as to ensure solutions are practical and
enforceable on a fishery by fishery basis and supported by improvements
in gear selectivity. He adds that ultimately the CFP as a whole
must provide the incentives and regulatory framework to drive
the necessary changes in fishing activity and behaviour, and points
out that the UK has already begun implementing bans through its
innovative catch quota schemes.
- Freedom for Member States to implement national
measures. The Minister says that the UK
is seeking genuine decentralisation and simplification of decision
making, and is concerned that the proposal does not detail how
Member States and stakeholders should work together to develop
coherent regional plans. It is also concerned that the proposals
will involve furthers powers being transferred to the Commission
through a wide use of delegated acts which will effectively re-centralise
decision making.
- Achieving Maximum Sustainable Yield (MSY)
by 2015. The Minister says that, while
the UK supports the use of MSY in combination with long term management
plans, it is concerned that the obligation to achieve this by
2015 ignores the complexities of mixed fisheries, will cause unnecessary
hardship to fishermen, and affect markets. He also notes that
the objective of the World Summit on Sustainable Development was
to achieve MSY by 2015 wherever possible.
- The mandatory allocation of transferable fishing
concessions. The Minister says that, whilst
the UK supports the aim of achieving a more rational and economically
efficient fleet and of managing quota rights so that fishermen
are able to plan for the long term, this should not mean imposing
the same system on all. However, he comments that Member State
competence will apparently be respected, with the Commission
allocating the opportunities and leaving Member States to
decide how best to manage the allocations.
- Integrating fisheries policy with EU environmental
legislation. The Minister says that it
will be necessary to make sure the new CFP contributes to the
delivery of Good Environmental Status under the Marine Strategy
Framework Directive (for example, with recourse to robust science
and sensible, consistent objectives in long term management plans
at the centre of the CFP).
- Sustainable Fisheries Agreements with third
countries. The Minister says that the
UK supports the proposal that the same principles of sustainable
use of marine resources should be applied outside EU waters as
within, though the proposals lack detail on how this will be achieved.
- Aquaculture production.
The Minister says that, whilst the UK has some concern that the
policy will be used to intervene in Member State, there is a role
for the EU in supporting the coordination of some areas of research
and for some aquaculture initiatives to remain eligible for funding
under the European Fisheries Fund.
- Improved scientific knowledge about the state
of stocks. The Minister says that the
UK will press for an examination of how scientific evidence is
developed in order to achieve this objective, noting that current
advice from the International Council for the Exploration of the
Sea (ICES) is based on short term, single-species analysis and
takes no account of wider factors such as stock interactions.
He suggests that a better approach would be to improve co-operation
with the fishing sector and enable the Council and European Parliament
to focus on setting longer term targets rather than setting the
annual TAC, and he cautions that resource implications will also
be an issue to consider.
1.34 The Minister concludes by saying that there
is still more work to be done in terms of the detail, including
avoiding creating additional bureaucracy or cost, ensuring key
changes are capable of practical implementation. In particular,
the financial implications will be addressed in the Impact Assessment
which the Government will be preparing.
Other views
1.35 We have also received a submission, dated 2
September 2011, from the organisation Client Earth about
the legality of the proposed system of transferable fishing concessions.
In summary, this contends that:
- The mandatory introduction
of a system of transferable fishing concessions (TFCs) (rather
than the simple allocation of fishing quota/fishing opportunities)
under the Common Fisheries Policy (CFP) proposal is unlawful.
This is because, legally, TFCs are property rights at least in
some (if not all) jurisdictions in the European Union (EU) —
mainly because they can be transferred and are exclusive in nature.
- According to Article 345 of the Treaty on the
Functioning of the European Union (TFEU), the EU is prohibited
from intervening in Member State systems of property ownership.
Therefore, the establishment of a system of property rights, such
as TFCs, is a matter of national sovereignty for, and, therefore,
at the discretion of individual Member States and cannot be mandated
by the EU through an EU-wide Regulation such as the CFP.
- Without prejudice and in addition to the unlawful
nature of TFCs under Article 345 TFEU due mainly to the element
of transferability of the system, the introduction of a mandatory
national trading system of fishing rights in each Member State
would also be contrary to the principle of subsidiarity. The TFC
system is not set up as an EU-wide trading system; EU transferability
is at the discretion of Member States2.
The objectives of setting up this kind of system of property rights
can be better achieved by Member States at central or regional
level (particularly taking account of the individual requirements
of the fisheries under their control and their unique systems
of property ownership). The scale or effects of the proposed TFC
system do not require EU action.
- In addition, and without prejudice to the previous
two points, mandatory TFCs are also contrary to the principle
of proportionality, as they exceed what is necessary to achieve
the objectives of the Treaty in relation to fisheries (either
as regards the conservation, management and exploitation of marine
biological resources or the market objectives of the CFP).
- To comply with EU law, there are two options
for the EU to deal with fishing opportunities. If a system of
transferable fishing opportunities is to be part of the proposal,
then, legally, such a system needs to be voluntary and cannot
be mandatory. Alternatively, a simple system for the allocation
of quota/fishing opportunities or fishing rights (without the
ability to transfer those fishing rights) would be possible.
Conclusion
1.36 It has tended to be our practice to await
an Impact Assessment before deciding how a document should be
handled, but, in the case of this Communication and draft Regulation
— which seek to address the long-standing problems which
have arisen on the Common Fisheries Policy — we have no
hesitation, even at this early stage, in judging them of sufficient
importance to recommend them for debate in European Committee.
Also, given the importance of the subject, we have thought it
right to report on them at some length, including providing a
detailed description of the draft Regulation, which re-acts a
number of familiar provisions from the existing arrangements,
whilst at the same time breaking new ground in such areas as discards
and transferable fishing concessions.
1.37 We will obviously await with interest the
Government's Impact Assessment, in the light of the consultations
it is carrying out and of the points which the Minister has highlighted
in his Explanatory Memorandum. In particular, we note he appears
to regard Member State competence as having been respected in
the case of transferable concessions, in marked contrast to the
position taken by Client Earth, and we would be interested
to have his reactions to the points made by that organisation.[9]
Since we will wish to consider whether these have any bearing
on whether the proposals comply with the principle of subsidiarity,
and whether to issue a Reasoned Opinion in accordance with the
procedures set out in the Protocol on subsidiarity and proportionality,
we would like to have this information in good time before our
next meeting on 12 October.
1 (30556) 8977/09: see HC 19-xviii (2008-09), chapter
2 (3 June 2009). Back
2
SEC(10) 428: see (31497) 7764/10, HC 428-i (2010-11), chapter
81 (8 September 2010). Back
3
(33024) 12508/11: see chapter 15. Back
4
(33025) 12517/11: see chapter 16. Back
5
(33026) 12516/11. Back
6
Council Regulation (EC) No 1224/2009 and Council Regulation (EC)
No 1005/2008. Back
7
These areas - including those in UK waters - are set out in an
Annex to the draft Regulation. Back
8
Subject to informing the Commission, they may also apply such
a system to vessels under 12 metres using other types of gear. Back
9
For the submissions made by Client Earth see: http://www.parliament.uk/business/committees/committees-a-z/commons-select/european-scrutiny-committee/submissions-to-the-committee1/. Back
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