Documents considered by the Committee on 13 March 2013 - European Scrutiny Committee Contents

9 Safety of fishing vessels



COM(13) 38

Draft Council Decision authorising Member States to sign, ratify or accede to the Cape Town Agreement of 2012 on the implementation of the provisions of the 1993 Protocol relating to the Torremolinos International Convention for the Safety of Fishing Vessels, 1997

Legal baseArticles 100(2), 218(5), 218(6)(a)(v) and 218(8) TFEU; co-decision; QMV
Document originated31 January 2013
Deposited in Parliament8 February 2013
Basis of considerationEM of 21 February 2013
Previous Committee ReportNone
Discussion in CouncilNot known
Committee's assessmentLegally and politically important
Committee's decisionDo not clear; request further information


9.1 In 1977 the Torremolinos International Convention for the Safety of Fishing Vessels was established under the auspices of the International Maritime Organization (IMO). Subsequently the Convention was supplemented by the 1993 Protocol. Council Directive 97/70/EC established a harmonised safety regime for fishing vessels. It requires new fishing vessels of 24 metres and over to comply with the Protocol. The Directive applies to third country vessels operating in the waters of or landing catch in the ports of an EU Member State.

9.2 To date the 1993 Protocol has not yet entered into force internationally. In order to assist its entry into force, the IMO identified requirements in the 1993 Protocol that were seen by some flag States, in particular Japan and China, as obstacles to ratification. In October 2012 it convened a Diplomatic Conference to agree amendments to the requirements of the 1993 Protocol to overcome those obstacles to ratification.

9.3 As a result of that conference the Cape Town Agreement (the Agreement) was adopted by the IMO on 11 October 2012 and is currently open for accessions. Changes to the 1993 Protocol brought about by the Agreement are:

·  modifications for new vessels relating to fire-fighting appliances, radio communications, life-saving appliances and competency requirements for radio personnel and introduction of an accompanying progressive implementation system to allow developing Member States to meet the requirements over a period of five years;

·  exemptions from the 1993 Protocol, if the vessel is operating in a Common Fishing Zone in adjoining marine areas of neighbouring States for vessels flying those members flags or in the exclusive economic zone (EEZ)[32] of the flag State or if it has not declared such a zone, the territorial zone and is within 200 miles of its baseline[33] or the EEZ, marine zone of another State or a common fishing zone in accordance with an agreement between the State concerned in accordance with international law; and

·  a revised survey regime that is tighter, with more comprehensive annual and periodic surveys (the five year renewal survey interval is longer than the four year interval currently required in the EU) ¯ States can also exempt vessels from the annual survey if it is deemed unreasonable or impractical.

9.4 The Agreement foresees the entry into force of the 1993 Protocol 12 months after the date on which not less than 22 IMO Member States, the aggregate number of whose fishing vessels of 24 metres in length and over operating on the high seas is not less than 3600, have expressed their consent to be bound by it.

The document

9.5 The Commission's draft Council Decision would authorise Member States to accede to the Agreement and would require them to be bound by the Agreement within two years from entry into force of the Decision. Furthermore, the Commission considers that in order to safeguard the additional requirements to the 1993 Protocol incorporated in Council Directive 97/70/EC, Member States should, when signing and agreeing to be bound by the Agreement, issue a declaration that:

·  the exemptions for vessels operating in Common Fishing Zones or EEZs and in relation to annual surveys are excluded from application within the EU; and

·  third country vessels operating in the waters or landing catch at the ports of a Member State shall be subject to the requirements of Directive 97/70/EC.

9.6 The Commission argues that the Agreement is a subject of exclusive competence of the EU.

The Government's view

9.7 On the question of subsidiarity and proportionality, the Parliamentary Under-Secretary, Department for Transport (Norman Baker) comments that:

·  as the 1993 Protocol has not entered into force internationally, there are differences in the standards of fishing vessels worldwide and given the poor accident record of the fishing industry globally, its entry into force may help to improve safety;

·  as Council Directive 97/70/EC, however, requires Member States and third party vessels in their waters to comply with the 1993 Protocol, the IMO standards have already been achieved in the EU;

·  it is the view of the Government that the objective of the EU is to improve fishing vessel safety through the implementation of the 1993 Protocol ¯ this has been achieved through Directive 97/70/EC;

·  since the Agreement does not increase the safety standards of the 1993 Protocol, the objective of the EU remains achieved; and

·  as such ratification of the Agreement may be viewed as not adhering to the principles of proportionality or subsidiarity.

9.8 Turning to the policy implications the Minister says that:

·  the Government supports the implementation of international measures that would raise fishing vessel safety standards by the wider international community to the level seen in the 1993 Protocol;

·  the UK has not ratified the 1993 Protocol because, prior to it being adopted, the UK had in place national fishing vessel safety legislation that was to a higher standard than the Torremolinos Convention and Directive 97/70/EC implemented the 1993 Protocol and therefore ratification of the Protocol itself was not deemed necessary;

·  the IMO has confirmed that the changes set out in the Agreement to the 1993 Protocol would not affect the more rigorous requirements in Member States;

·  the Government remains unconvinced of the object and purpose of Member States ratifying the Agreement when Directive 97/70/EC establishes a harmonised safety regime for fishing vessels and implements the 1993 Protocol;

·  the Government considers that ratification may not be deemed necessary other than to serve the purpose of increasing the number of ratifications to trigger entry into force on third countries without a broad base of support internationally;

·  it may also be considered unnecessary by the international community for Member States to ratify the Agreement when regional legislation already applies to vessels of a third country operating and landing catch in the EU;

·  the Government is concerned that the proposal might indicate an intention by the Commission to extend EU competence to the governing articles of the 1993 Protocol relating to matters such as the usual obligation to be bound by a convention (usually entitled "general obligations under the Convention"), entry into force, ratification and adoption of amendments, rather than the technical aspects of the 1993 Protocol that are incorporated into Directive 97/70/EC; and

·  the Government is considering its position on the draft Council Decision and is seeking further evidence of its implications.


9.9 We note the Government's concern about competence creep, although we think Article 3 (2) TFEU and Directive 97/70/EC make the Commission's claim of exclusive external competence difficult to undermine. Whether it is necessary for EU Member States to ratify the Cape Town Agreement on behalf of the EU seems, however, open to doubt, for the reasons the Minister gives. Before considering the matter further we should like to know the outcome of the Government's consideration of its position on the proposal and of its search for further evidence of its implications. Meanwhile the document remains under scrutiny.

32   The area extending 200 nautical miles from the baseline (articles 55, 56 and 57 of the United Nations Convention on the Law of the Sea). Back

33   A baseline of a country can be the low water line, a straight baseline (a line that encloses bays, estuaries, inland waters) or a combination of the two. Back

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Prepared 22 March 2013