Documents considered by the Committee on 2 November 2011 - European Scrutiny Committee Contents

1 Reform of the Common Fisheries Policy




COM(11) 417



+ 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

DepartmentEnvironment, Food & Rural Affairs
Basis of considerationMinister's letters of 11, 24 and 27 October 2011
Previous Committee ReportHC 428-xxxvi (2010-12), chapter 1 (14 September 2011)
Discussion in CouncilDecision expected by mid 2013
Committee's assessmentPolitically important
Committee's decisionFor debate in European Committee A (decision reported on 14 September 2011)


1.1  The conservation aspects of the Common Fisheries Policy (CFP), which came into operation in 1983, have endeavoured to maintain stock levels by limiting catches and fishing effort, by so-called technical conservation provisions, and 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, there has been general agreement that the Policy has not achieved its objectives, and that, as a result, many of the EU's fish stocks are in a parlous state.

1.2  The Commission accordingly 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 Financial Framework after 2013. In the light of the responses to that Green Paper, it duly produced in July 2011 this Communication (documents (a)) and draft Regulation (document (b)), together with two further Communications — one reporting on the operation of current measures for the conservation of fisheries resources,[2] and the other dealing with the external dimension of the CFP[3] — and a separate draft Regulation[4] on the common organisation of the markets in fishery and aquaculture products.

1.3  We set out at some length in our Report of 14 September 2011 the contents of document (a), which recalled the failings previously identified in the Green Paper and the main elements in the proposed reform. These included the need for sustainable fishing (involving the elimination of discarding of fish, an obligation to land catches of regulated species, and the placing of greater reliance on multi-annual and multi-annual stock management plans); securing a profitable industry by means of a system of transferable fishing concessions within individual Member States; achieving thriving coastal communities; satisfying informed consumers by means of better marketing and improved market intelligence; achieving better governance through regionalisation; smarter financing, strictly geared to achieving the objectives of the reformed CFP; and by projecting the CFP principles internationally.

1.4  We also spelt out at length the content of the draft Regulation in seeking to give legal effect to the changes proposed in the Communication, notably as regards access to waters, conservation measures at EU and national levels, access to resources, management of fishing capacity, external policy, and control and enforcement. We went on to note that, although the Government had welcomed the proposals as a good starting point, it had said that it needed to work with the Commission and others to improve them, and had identified a number of key areas where further discussion was necessary.

1.5  We concluded by saying that we had no hesitation, even at this early stage, in deeming these proposals of sufficient importance to warrant a debate in European Committee, and in providing a detailed description of the draft Regulation, which would re-enact 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. In particular, we drew attention in the latter case to representations we had received from the organisation Client Earth, challenging the legality of the provisions in question, and we asked the Government to let us have its reaction before our next meeting on 12 October, in order to enable us to consider then whether the points made by that organisation had any bearing on whether the proposals comply with the principle of subsidiarity (and on whether a Reasoned Opinion should be issued in accordance with the relevant Protocol of the Lisbon Treaty).

Subsequent correspondence

1.6  We subsequently received from the Parliamentary Under-Secretary for Natural Environment at the Department for Environment, Food and Rural Affairs (Mr Richard Benyon) a letter of 11 October 2011, which said:

"The Committee asked for additional information on Member State competence in the case of introducing Transferable Fishing Concessions (TFCs), with reference to a submission received by Client Earth on this issue. In response, the original position—as set out in the Explanatory Memorandum [of 16 August 2011]—is maintained. Article 5.3 of the Treaty on the Functioning of the European Union (TFEU) clearly states that the issue of subsidiarity (the principle that the EU may only act where the objectives of the proposal cannot be achieved by the Member States acting individually) does not apply in areas of exclusive Union competence which, as set out in Article 3.1(d) of the TFEU, includes 'the conservation of marine biological resources under the common fisheries policy'.

"This means that the European Commission, under its right of initiative, was entitled to include the proposals for mandatory TFCs as a tool for the conservation of marine biological resources in the draft proposals that were issued in July.

"Client Earth also suggest that the articles requiring the mandatory introduction of TFCs by Member States in the CFP proposals is prohibited by article 345 of the TFEU (which states that 'The Treaties shall in no way prejudice the rules in Member States governing the system of property ownership'). This argument cannot be maintained since the current proposals merely require Member States to limit the amount of fish that can be caught through a system of TFCs—rather than defining individuals' property rights. Consequently, we are content that the current proposals do not infringe Article 345.

"Finally, on the issue of proportionality, Client Earth believe that TFCs are contrary to this principle based on the notion that TFCs exceed what is necessary for the Treaty to achieve its fisheries objectives. The UK does not support the mandatory introduction of TFCs in the way it is currently proposed. However, the Commission are, we believe, entitled to propose the use of TFCs as one way of managing fisheries in support of achieving the CFP objective of sustainable fisheries."

1.7  Despite our very specific request that we should receive comments in good time before our meeting on 12 October, the letter in question reached us barely two hours before it was due to start. As a result, our first opportunity to consider it was on 19 October, meaning that there was then no chance of a Reasoned Opinion being issued before the eight week deadline in the Protocol. Our Chairman therefore wrote to the Minister saying that there had been a lamentable failure on his part to meet his obligations to us and to the House as a whole, and asking him to explain how this came about.

1.8  In addition, he drew attention to a point of substance arising from the Minister's initial response, which he noted strongly contested the position taken by Client Earth, in that it pointed out that the issue of subsidiarity does not apply to areas of exclusive EU competence, which includes the conservation of marine biological resources under the CFP. However, our Chairman suggested that this depends critically upon whether the purpose of transferable fishing concessions is indeed the conservation of marine resources, or whether it is geared more to fleet management, a point the Minister's letter had not addressed.

1.9  In particular, he noted that transferable fishing concessions had been introduced by the Commission in a section of its Communication headed "A future for fisheries and aquaculture industry and jobs", suggesting an emphasis on issues which go beyond strict conservation. Also, they were similarly referred to in the Commission's explanatory memorandum to the draft Regulation under the heading of "Access to resources", as distinct from "Conservation of marine biological resources", and their purpose was described in the following terms:

"The introduction of a system of transferable fishing concessions will constitute a major driver for fleet capacity adjustment. The impact assessment has shown clear positive and significant contributions from such a system of transferable fishing concessions to eliminate over-capacity and to improve economic results of the fishing industry."

1.10  Our Chairman thought that this might well indicate that they are not a tool for the conservation of marine biological resources, as the Minister had suggested, and he pointed out that the exclusive competence granted to the EU over "conservation of marine resources" was an exception to the general rule that the CFP is an area of competence shared between the EU and its Member States. He therefore asked the Minister to let us have a more considered response to this important issue.

1.11  We have since received from the Minister a letter of 24 October 2011, apologising for the delay in meeting our initial deadline of 12 October, and pointing out that we had raised important issues of precedent and principle in an important and technical area, and that ensuring that these issues were properly assessed — including liaising with the devolved administrations — had taken longer than expected.

1.12  This was followed by a letter of 27 October addressing the point of substance involved, in which the Minister says that he sought and received further legal advice which maintains the original position in respect of the issues raised by Client Earth. In particular, he points out:

"On the substantive point raised in your letter, I agree that the distinction about the purpose of Transferable Fishing Concessions (TFCs) is a crucial one. Exclusive EU competence applies in the area of the conservation of marine biological resources under the CFP and the CFP includes a wide range of provisions and tools to manage fisheries with this aim. These include measures to balance capacity with the fishing opportunities available and measures to set a limit on the amount of fish that can be caught.? An argument that these measures are not for the purpose of conservation of marine biological resources would I believe be very difficult to sustain.

"Over-capacity is cited by the Commission as "one of the main obstacles to achieving sustainable fisheries" and it is self evident that matching the fleet's capacity to the fishing opportunities available is an important element of sustainable management. ?The Commission's proposals on TFCs are aimed at ensuring all Member States manage capacity in a rational way so that fishermen can plan for the long term and that they set clear limits on the amount of fish that can be caught. This is important because we want a reformed CFP to incentivise fishing industries to operate in a sustainable way, with fishermen having a stake in the long term health of fish stocks.?? Measures to define and limit catch levels are a basic part of fisheries management, and the conservation of stocks at an EU level, but there are important areas in which the CFP should not impose detailed rules on Member States, nor encroach on Member States' competence to manage their own fleets and fishing rights. Member States must be able to make their own decisions on the allocation of quota, and trading of it within their own fleets, and we would not want to jeopardise the UK's position under "relative stability" of fishing opportunities.?

"I am alert to the risk of "competence creep" in agreeing a new CFP which we need to manage UK fisheries and the fishing industry effectively and to overcome the current CFP's serious failings. This means making the most of all tools available and learning lessons from successful fisheries managers around the globe. Whatever you or I might wish, I remain of the view that the proposals on TFCs lie within the exclusive competence of the EU. In the coming months, we will press for changes to the proposals that we believe are needed in the interests of UK fisheries."


1.13  We are grateful to the Minister for this further explanation of the Government's position as regards the EU competence in relation to transferable fishing concessions, and, with the issues involved having now been thoroughly aired, we are content to draw the correspondence in question to the attention of the House, in advance of the debate on these documents which is due to take place in European Committee A on 7 November.

1.14  Having said that, and whilst recognising that the issues involved made it necessary to seek legal advice, we would like to repeat our concern at the failure of the Minister to meet our original request that this information should reach us in time to consider at our meeting on 12 October. In the first place, the three weeks allowed for this was in our view more than ample, notwithstanding the nature of the issues involved, and more particularly the deadline we set was explicitly intended to enable us to prepare a Reasoned Opinion, had we judged this to be necessary. The fact that we were not able to consider the Minister's response until 19 October effectively denied us — and the House — that opportunity, given the deadline in the subsidiarity Protocol: and, even though the explanation eventually given makes it unlikely that we would have chosen to issue such an Opinion, this does not excuse the very real shortcomings in the way in which this request was handled.

1   (30556) 8977/09: see HC 19-xviii (2008-09), chapter 2 (3 June 2009). Back

2   (33024) 12508/11: see HC 428-xxxvi (2010-12), chapter 15 (14 September 2011). Back

3   (33025) 12517/11: see HC 428-xxxvi (2010-12), chapter 16 (14 September 2011). Back

4   (33026) 12516/11: see HC 428-xxxvii (2010-12), chapter 5 (12 October 2011). Back

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Prepared 10 November 2011