1 Reform of the Common Fisheries Policy
| (a)
(33023)
12519/11
COM(11) 417
(b)
(33027)
12514/11
+ ADDs 1-3
COM(11) 425
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Commission Communication: Reform of the Common Fisheries Policy
Draft Regulation on the Common Fisheries Policy
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| Legal base | (a) —
(b) Article 43(2) TFEU: co-decision; QMV
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| Department | Environment, Food & Rural Affairs
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| Basis of consideration | Minister's letters of 11, 24 and 27 October 2011
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| Previous Committee Report | HC 428-xxxvi (2010-12), chapter 1 (14 September 2011)
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| Discussion in Council | Decision expected by mid 2013
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| Committee's assessment | Politically important
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| Committee's decision | For debate in European Committee A (decision reported on 14 September 2011)
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Background
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."
Conclusion
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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