European Scrutiny Committee Contents

38 Fishing opportunities in 2010-11




COM(10) 306




COM(10) 374

Draft Council Regulation amending Regulation (EU) No. 53/2010 as regards certain fishing opportunities for cod redfish and bluefin tuna and excluding certain groups of vessels from the fishing effort laid down in Chapter III of Regulation (EC) No. 1342/2008

Draft Council Regulation establishing the fishing opportunities in the Bay of Biscay for the 2010-11 fishing season and amending Regulation (EU) No. 53/2010

Legal baseSee para 38.5 below
Document originated(a) 11 June 2010

(b) 7 July 2010

Deposited in Parliament(a) 16 June 2010

(b) 12 July 2010

DepartmentEnvironment, Food and Rural Affairs
Basis of consideration(a) EM of 30 June 2010

(b) EM of 16 July 2010

Previous Committee ReportNone
To be discussed in Council26 July 2010
Committee's assessment(Both)Legally important
Committee's decisionCleared, but further information requested


38.1 Each year, the EU fixes the fishing opportunities for its vessels, and those for 2010 were set out in Regulation (EU) No. 53/2010. However, in-year adjustments are frequently made in order to reflect changes in circumstances, including the updating of relevant scientific advice and subsequent decisions taken by regional fisheries organisations of which the EU is a member.

The current proposals

38.2 The Commission has accordingly put forward these two proposals, which would make certain changes to the fishing arrangements applying in 2010. Document (a) would amend Regulation (EU) No. 53/2010 to reflect changes agreed internationally by the North Atlantic Fisheries Organisation (which regulates catches in the North West Atlantic) and by the International Commission for the Conservation of Atlantic Tunas. Also, Regulation (EC) No 1342/2008 enables the Council to grant requests from Member States for certain vessels to be exempted from the effort limitation provisions laid down under long-term recovery plans, and this proposal would enable such requests from Germany, Ireland and France to be approved. Document (b) would amend the total allowable catches (TAC) set for anchovy in the Bay of Biscay in the light of newly available scientific advice.

The Government's view

38.3 The UK has no direct interest in the Bay of Biscay fishery, and in a Explanatory Memorandum of 30 June 2010, the Parliamentary Under-Secretary for Natural Environment and Fisheries at the Department for Environment, Food & Rural Affairs (Mr Richard Benyon) said that the UK supports the proposed changes, and that the Government will be putting in on behalf of UK vessels a similar request for an exemption from the effort limitation provisions.


38.4 These proposed changes have a minimal impact on the UK, and, since they therefore raise no important policy issues, we are clearing these documents. However, they do raise a legal issue which concerns us, and on which we would welcome the Government's views.

38.5 In each case, the Explanatory Memorandum provided gives Article 43(3)TFEU as the legal base, and says that the proposal is subject to special legislative procedure. In a letter from the previous Minister for Europe on 11 January 2010[154] on the definition of "legislative act" under the EU Treaties, we were told that an act could only be adopted by the ordinary or a special legislative procedure, and therefore be considered a legislative act, if the relevant legal base "explicitly" referred to the legislative procedure. Yet Article 43(3) is silent on this. We would be grateful, therefore, if the Minister would confirm whether the Government has departed from the view of the previous Government when he states in his Explanatory Memorandum that these Regulations are adopted by special legislative procedure. The question of legislative procedure is significant because it determines the application of the Protocols on national parliaments and on the principle of subsidiarity, and in particular whether national parliaments have an eight week period in which to consider a proposal.

38.6 We would also be grateful if the Minister could tell us whether, prior to the Lisbon Treaty coming into force, the Council considered that it was acting "in its legislative capacity" in accordance with Article 7 of the Council's 2004 rules of procedure when adopting these types of Regulation on fishing opportunities. If it did (which would seem likely) national parliaments would have had a Treaty-enshrined right to six weeks for scrutiny before adoption in the Council under Article I(3) of the pre-Lisbon Protocol on national parliaments, but would now be denied even this if the current proposals were deemed not to be legislative acts.

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