Adoption of detailed EU fishing rules
Committee’s assessment
Commission Report in respect of the delegation of powers referred to in Article 11(2), Article 15(2), (3), (6), (7) and Article 45(4) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy
Department - Environment, Food and Rural Affairs
Document Number
(39516), 6579/18, COM(18) 79
Summary and Committee’s conclusions
3.1 Most fisheries policy falls within the exclusive competence of the European Union — the Common Fisheries Policy (CFP). The European Parliament and Council of Ministers set the framework for the policy, but detailed decisions — such as the practical implementation of the discard ban (landing obligation) in the North Sea — are formally taken by the European Commission, but with the close involvement of national experts and stakeholders. Known as Delegated Acts, these decisions can be opposed, and ultimately blocked, by either the European Parliament or Council. The Commission’s document reports on how the Commission has exercised its delegation of powers in this area. During the post-Brexit implementation period, such Acts will apply to the UK, including those Acts adopted after the UK has left the EU in March 2019.
3.2 Since the entry into force of the CFP Regulation (Regulation (EU) No 1380/2013), 15 UK-relevant Delegated Acts have been adopted under it (see Annex), most of which related to implementation of the discard ban.
3.3 As an EU Member State, the UK is involved in the development of these Acts at different stages. The first stage involves those Member States with a direct management interest agreeing to submit a Joint Recommendation to the Commission on how the objectives can be achieved. When shaping Joint Recommendations, Member States should consult the relevant stakeholder Advisory Councils, which include UK representatives from both industry and non-governmental organisations. The draft Acts are then submitted to scientific experts on the Scientific, Technical and Economic Committee for Fisheries (STECF) — four of the 32 members are currently from the UK — and, finally, to the Expert Group for Fisheries and Aquaculture, comprising representatives of the Member States. The European Parliament and Council (including the UK and UK Members of the European Parliament) can object within two months following adoption by the Commission.
3.4 According to the draft Withdrawal Agreement (“the Agreement”), the UK will no longer be a member of any EU institutions or bodies during the post-Brexit implementation period. The UK may, however, be invited to meetings of Commission expert groups as long as: either the discussion concerns individual acts to be addressed during the transition period to the UK or to natural or legal persons residing or established in the UK; or the presence of the UK is necessary and in the interest of the EU, in particular for the effective implementation of EU law during the transition period. Furthermore, the UK shall be consulted by the EU on draft EU acts which identify or refer directly to specific Member State authorities, procedures, or documents. Both sides are required under the Agreement to operate under the concept of “good faith”, without prejudice to the application of Union law pursuant to the Agreement, in particular the principle of sincere cooperation. Finally, a Joint Committee will be charged with overseeing implementation of the Agreement and will be able to seek appropriate ways and methods of preventing problems that might arise or of resolving disputes.
3.5 The Minister for Agriculture, Fisheries and Food (George Eustice) considers that no policy implications arise. The UK has actively contributed to Joint Recommendations for existing Delegated Acts applicable to the UK fleet and the UK is currently working within the North Sea and North Western Waters regional groups of Member States on Joint Recommendations for 2019 discard plans that will outline rules for full implementation of the landing obligation from 1 January 2019.
3.6 We note the Minister’s view that no policy implications arise from this document, but we do not agree. By contrast, we consider that the document provides a stark illustration of the challenge that the UK will need to meet in engaging with relevant EU fisheries rules affecting its fleet during the post-Brexit implementation period.
3.7 The UK can currently influence Delegated Acts adopted under the CFP Regulation in a number of ways as set out above. As we interpret the draft Agreement, there are no arrangements at all for UK engagement in Joint Recommendations or the Advisory Councils. The UK may be invited to the Expert Group for Fisheries and Aquaculture, and potentially to the STECF. It clearly would not be able to participate in either the Council or the European Parliament. The Commission might be obliged to consult the UK on draft Delegated Acts should they be deemed to identify or refer directly to specific Member State authorities, procedures, or documents, although it is unclear what such consultation would constitute and at what stage it would be.
3.8 Noting the UK’s active contributions to date in discussions on Joint Recommendations relevant to the UK, and noting the likelihood that UK-relevant fisheries Delegated Acts will be proposed, adopted and implemented during the implementation period, we ask the Minister to explain:
- how, if at all, the UK might be able to engage in discussions on relevant Joint Recommendations and how its stakeholders might be involved in Advisory Council discussions;
- whether the UK would be invited to relevant meetings of the STECF and the Fisheries and Aquaculture Expert Group and, if so, how the UK would assess whether it was being invited to all of the appropriate meetings and for all of the appropriate agenda points;
and
- whether draft Delegated Acts proposed under the CFP Regulation would be likely to constitute “draft Union acts” on which the EU will be required to consult the UK according to Article 123(7) of the draft Agreement and, if so, what arrangements for such consultation will apply.
3.9 We note that the draft Agreement includes both the obligation on both parties to operate under the principle of good faith and the possibility for any disputes to be considered by the Joint Committee. How either of these mechanisms will work in practice is yet to be considered in any detail, and we note that significant caveats apply to the good faith provision. That said, these are potentially helpful back-stop provisions, aiming to ensure that the EU does not take action that would harm the UK (and vice versa). We would nevertheless hope that the UK Government would aspire not simply to avoid harm but to ensure that law applicable to UK fisheries is well-suited to UK circumstances. We therefore ask the Minister how confident — irrespective of the good faith clause and the Joint Committee mechanism — the Government is that it will be able to represent UK fisheries and marine environment interests during the implementation period as effectively as it currently does, taking into account the considerations that we have set out above.
3.10 We note that the delegation power will be tacitly extended for another five years unless opposed by either the European Parliament or the Council by 29 September 2018. Given that the acts adopted under the delegation power will apply during the implementation period, but without full UK involvement, we ask whether the UK would consider opposing the extension.
3.11 We hold the Report under scrutiny and draw it to the attention of the Environment, Food and Rural Affairs Committee.
Full details of the documents
Commission Report in respect of the delegation of powers referred to in Article 11(2), Article 15(2), (3), (6), (7) and Article 45(4) of Regulation (EU) No 1380/2013 of the European Parliament and of the Council of 11 December 2013 on the Common Fisheries Policy: (39516), 6579/18, COM(18) 79.
Background
3.12 The Commission Report sets out how the Commission has exercised delegated powers within the CFP Regulation (Regulation (EU) No 1380/2013) and provides a list of the Delegated Acts adopted.
3.13 Delegated Acts can be adopted in respect of:
the implementation of the discard ban;
conservation measures relating to Member States’ environmental obligations; and
the functioning of Advisory Councils (industry and environmental stakeholders).
3.14 This power to adopt Delegated Acts is conferred on the Commission for a period of five years from 29 December 2013. The delegation of power will be tacitly extended for further five-year periods unless the European Parliament or the Council opposes this extension. If they do choose to oppose, this should be done no later than three months ahead of the end of the current five-year period.
Explanatory Memorandum of 13 March 20
3.15 The Minister considers that no policy implications arise from this Report. He adds:
“The UK has actively contributed to Joint Recommendations for existing delegated acts that are applicable to the UK fleet. The UK is currently working within the North Sea and North Western Waters regional groups on Joint Recommendations for 2019 discard plans that will outline rules for full implementation of the landing obligation from 1 January 2019.”
UK-relevant Delegated Acts adopted under Regulation (EU) No 1380/2013
Delegated Acts in Force:
Commission Delegated Regulation (EU) 2017/118 of 5 September 2016 establishing fisheries conservation measures for the protection of the marine environment in the North Sea;
Commission Delegated Regulation (EU) 2017/1180 of 24 February 2017 amending Delegated Regulation (EU) 2017/118 establishing fisheries conservation measures for the protection of the marine environment in the North Sea;
Commission Delegated Regulation (EU) No 1393/2014 of 20 October 2014 establishing a discard plan for certain pelagic fisheries in north-western waters (expiration date: 31 December 2017);
Commission Delegated Regulation (EU) No 1395/2014 of 20 October 2014 establishing a discard plan for certain small pelagic fisheries and fisheries for industrial purposes in the North Sea (expiration date: 31 December 2017);
Commission Delegated Regulation (EU) 2016/2250 of 4 October 2016 establishing a discard plan for certain demersal fisheries in the North Sea and in Union waters of ICES Division IIa (expiration date: 31 December 2018);
Commission Delegated Regulation (EU) 2016/2375 of 12 October 2016 establishing a discard plan for certain demersal fisheries in North-Western waters (expiration date: 31 December 2018);
Commission Delegated Regulation (EU) 2017/1393 of 24 May 2017 amending Delegated Regulation (EU) No 1395/2014 establishing a discard plan for certain small pelagic fisheries and fisheries for industrial purposes in the North Sea (expiration date: 31 December 2017);
Commission Delegated Regulation (EU) 2015/242 of 9 October 2014 laying down detailed rules on the functioning of the Advisory Councils under the Common Fisheries Policy;
Commission Delegated Regulation (EU) 2017/1575 of 23 June 2017 amending Delegated Regulation (EU) 2015/242 laying down detailed rules on the functioning of the Advisory Councils under the common fisheries policy.
Delegated Acts adopted by the Commission but not yet in force
Commission Delegated Regulation (EU) No …/... establishing a discard plan for certain demersal fisheries in the North Sea and in Union waters of ICES division IIa for the year 2018, adopted on 20/10/2017;
Commission Delegated Regulation (EU) No …/... establishing a discard plan for certain demersal and deep sea fisheries in North-Western waters for the year 2018, adopted on 20/10/2017;
Commission Delegated Regulation (EU) No …/... amending Delegated Regulation (EU) No 1395/2014 establishing a discard plan for certain small pelagic fisheries and fisheries for industrial purposes in the North Sea, adopted on 23/11/2017;
Commission Delegated Regulation (EU) No …/.. amending Delegated Regulation (EU) No 1393/2014 establishing a discard plan for certain pelagic fisheries in North-Western waters, adopted on 24/11/2017.
Delegated Acts that have expired or been repealed
Commission Delegated Regulation (EU) 2015/2438 of 12 October 2015 establishing a discard plan for certain demersal fisheries in north-western waters, repealed by Commission Delegated Regulation 2016/2375 as of 1 January 2017;
Commission Delegated Regulation (EU) 2015/2440 of 22 October 2015 establishing a discard plan for certain demersal fisheries in the North Sea and in Union waters of ICES Division IIa, expired on the 31 December 2016.