European Scrutiny Committee Contents

18 Multi-annual plan for west of Scotland herring



COM(11) 760

Draft Regulation amending Council Regulation (EC) No 1300/2008 establishing a multi-annual plan for the stock of herring distributed to the west of Scotland and the fisheries exploiting that stock

Legal baseArticle 43(2) TFEU; co-decision; QMV
Document originated22 November 2011
Deposited in Parliament28 November 2011
DepartmentEnvironment, Food & Rural Affairs
Basis of considerationEM of 5 December 2011 and Minister's letter of 30 January 2012
Previous Committee ReportNone
Discussion in CouncilNo date set
Committee's assessmentPolitically important
Committee's decisionCleared


18.1 Whilst the general state of the fish stocks in EU waters has given rise to concern, particular problems have been identified in respect of certain stocks, including west of Scotland herring, where Council Regulation (EC) No 1300/2008 established a multi-annual plan which seeks to ensure its exploitation on the basis of the maximum sustainable yield.

18.2 In particular, the Regulation provides for that objective to be achieved by maintaining the fishing mortality rate at levels which differ according to the size of spawning stock biomass, and by achieving this through annual variations of ±20% in the total allowable catch (TAC), again depending on the situation of the stock. However, the Regulation provides where, on the basis of scientific advice, the Commission finds that the specified mortality rate and associated spawning stock biomass are no longer appropriate, it may propose a revision of those rates and/or levels for the Council to decide by qualified majority. Similarly, the Commission has to review at least every four years the geographical area to which the plan applies, along with the biological reference levels and the rules for setting TACs, with the Council again deciding by qualified majority any Commission proposal to amend these.

The current proposal

18.3 In November 2011, the Commission put forward this proposal under which decisions to amend the parameters in question would in future be taken, not by the Council as at present, but by the Commission using its new powers under Article 290 TFEU to adopt non-legislative acts of general application to supplement or amend non-essential elements of a legislative act. The proposal would confer these powers for an indefinite period, but — as provided for in Article 290 TFEU — the delegation in question could be revoked at any time by European Parliament or Council, and any delegated act may enter into force only if no objection from the European Parliament or Council has been received within two months (or the Parliament and Council have indicated within that period that they will not object).

The Government's view

18.4 We first received from the Parliamentary Under-Secretary for Natural Environment and Fisheries at the Department for Environment, Food & Rural Affairs (Mr Richard Benyon) an Explanatory Memorandum of 5 December 2011, in which he said that "there may be some discussion by Member States as to whether the function being delegated to the Commission relates to 'essential' elements, and should, therefore be reserved". However, as he did not indicate what the UK view was, our Chairman wrote on 14 December 2011 saying that we would find it helpful if this could be spelt out.

18.5 The Minister replied on 30 January 2012 saying essential elements in the context of Article 290 would, in the Government's view, relate to the fundamental objectives and structure of the multi-annual plan. However, in this case, the elements proposed for potential delegation to the Commission are limited to making adjustments to the biological parameters (for example, fishing mortality rates; spawning stock biomass levels; biological reference levels) in the light of ongoing scientific advice, and are thus science-based rather than points for political agreement. Consequently, whilst important, the Government considers them to be "non-essential".

18.6 At the same time, the Minister goes on to refer to the wider question of whether the future use of delegated acts is the best model to follow for this purpose. He says that the model may still be of some limited use if taking that route will enable short term progress under the current Common Fisheries Policy, and where the use of delegated acts may therefore serve as an interim (and strictly time limited) measure while the current CFP continues to apply. However, he suggests that, for the longer term, the model represents much criticised and centralised control from Brussels, which is not considered appropriate for regional implementation, and that there is an important read-across to the decentralising elements of the Government's CFP reform agenda, where its aim is to establish how ongoing operation and adaptation of a plan will work in a regionalised model.

18.7 The Minister adds that this is predicated on the proposed legal base Article 43 (2) TFEU, requiring full co-decision of the plan itself, and he recalls that this is a major bone of contention for those Member States which consider that any elements related to fishing opportunities should be a matter for Council only (and therefore requiring a legal base of Article 43 (3) TFEU). He describes this as the core difficulty underlying the impasse which has arisen on the development of multi-annual plans, and says that he would prefer to see focused discussions to resolve the over-arching issue, rather than further proposals being brought forward in a piecemeal fashion, noting that the Danish Presidency has identified resolution of this impasse amongst the priorities of its work programme, and confirming that he will continue to report on developments.


18.8 Since the Minister has indicated that he is content that the Commission's implementing powers under Article 290 TFEU should be used in this instance, we are clearing this document. However, we think it right to draw to the attention of the House the Minister's more general comments on the future use of delegated acts under the Common Fisheries Policy, as well as the difference of view which has arisen within the Council on the whether the correct legal base for proposals of this kind should be Article 43(2)TFEU (which involves co-decision with the European Parliament) or Article 43(3)TFEU (which would be a matter solely for the Council).

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