Documents considered by the Committee on 14 December 2016 Contents

7EU external borders: role of the European Fisheries Control Agency

Committee’s assessment

Legally and politically important

Committee’s decision

Cleared from scrutiny

Document details

Proposal for a Regulation amending Council Regulation (EC) No. 768/2005 establishing a Community Fisheries Control Agency

Legal base

Article 43(2) TFEU, ordinary legislative procedure, QMV


Environment, Food and Rural Affairs

Document Numbers

(37402), 15395/15, COM(15) 669

Summary and Committee’s conclusions

7.1A Commission Communication38 at the end of 2015 on the effective management of Europe’s external border launched a new package of measures, intended to address “weaknesses and gaps” in the management of the EU’s external borders, and proposed the establishment of a European Border and Coast Guard Agency (EBCA), based on the existing External Borders Agency (Frontex), with enhanced powers and a right to intervene in crisis situations.

7.2The wider package of measures put forward by the Commission included two proposed Regulations—one39 to amend the remit of the European Maritime Safety Agency (EMSA) to allow it to cooperate with the new agency in support of national authorities’ coastguard activities, and this document, which would have a similar effect as regards the remit of the European Fisheries Control Agency (EFCA). In particular, the proposal would require the Agency to cooperate with the other two agencies, and introduce a new article, aimed at supporting national authorities carrying out coastguard functions at national, EU and, where appropriate, international level.

7.3As we noted in our Report of 24 February 2016, the Government said that it was considering its detailed position in the context of the Commission’s wider migration package, but noted that information gathered by the EFCA and shared with the other two Agencies and with other Member States would be used for the prevention, detection and investigation of crime, as well as for migration control. It therefore considered that the proposal constituted a partial Justice and Home Affairs measure triggering the UK’s opt-in, and said that it would press for the legal bases in Title V of Part III of the Treaty on the Functioning of the European Union to be cited. It also said that, even if this was not agreed, it would, in line with its current approach, take an opt-in decision by the deadline of 16 March 2016, having regard to the benefits that would arise from the proposal, and its effect on UK assets and resources.

7.4We subsequently noted in our Report of 26 October 2016 that there had been a number of developments on this proposal and on the parallel proposals regarding the EBCA and EMSA, and that, in each instance, the UK was now broadly content with the policy content. In the case of the EFCA, it had satisfied itself that potentially problematic elements—such as capacity sharing and joint multipurpose operations—would be voluntary for Member States, and had confirmed that the UK chose not to exercise its pre-adoption opportunity to opt-in, but might wish to do so after the measure was adopted.40

7.5We went on to note that the proposal had now been adopted as Regulation 2016/1626, had come into force, and that the Government had asserted that the UK opt-in was engaged. However, we said that we did not agree, commenting that the Government’s position therefore was that some or all of the Regulation does not apply to the UK when the text of it makes no such indication, but that this might change if the Government opted in post adoption, which it was thinking of doing.

7.6We asked the Minister whether the Government had decided to opt-in post adoption and, if so, to what extent: and, if the response was that the Government was not going to opt-in, we asked it to indicate whether it had taken any other step (such as a minute statement) to make it clear that the UK opt-in applies and that the UK has not opted in. We also asked:

7.7We have now received a letter of 7 December 2016 from the Minister of State at the Department for Environment, Food and Rural Affairs (George Eustice) saying that:

“Regulation 2016/1626 formally requires the European Fisheries Control Agency (EFCA) to cooperate, through the sharing of fisheries information with the European Border and Coastguard Agency (EBCA) and the European Maritime Safety Agency (EMSA), in the prevention, detection and investigation of criminal offences and in tackling illegal migration and organised crime. As such the Government’s view is that the Regulation 2016/1626 contains elements that fall within the scope of the Justice and Home Affairs (JHA) section of the Treaties and is therefore subject to the UK’s JHA opt-in.

“The Government decided not to opt-in, both within the initial 3 month period and post-adoption. We tried to secure a JHA legal base for the Regulation 2016/1626 but were unable to do so. The Commission refused to change the legal base as the Regulation which established the EFCA, which Regulation 2016/1626 amended, has a Common Fisheries Policy legal base. We do not intend to challenge the legal base before the Court of Justice of the European Union as we broadly support the EFCA Regulation. We therefore consider that in line with the former Home and Justice Secretary’s letter of June 2014, as the measure is a partial JHA measure, the UK is bound by the amending Regulation 2016/1626.

“The obligations set out in the Regulation 2016/1626 fall primarily on EFCA itself and not directly on the Member States and we will continue to provide information to the EFCA for fisheries purposes. EFCA may use that information for the broader purposes set out in the Regulation.

“A Written Ministerial Statement will be tabled in Parliament shortly, to record that the UK’s JHA opt-in applies and that the UK has decided not to opt-in.”

7.8We clear this document from scrutiny. In doing so, we draw the attention of the House to this instrument. The Government claim that some part of it does not apply to the UK as the UK opt-in is engaged but the UK has not opted in. Nowhere on the face of the instrument is this apparent and, in the absence of a legal basis from Title V of part Three TFEU42 it is very unlikely that any other Member State or EU institution will regard the UK as not participating in part of this Regulation. In these circumstances we regard the proposed Written Ministerial Statement as ineffective and simply a symbolic exercise.

Full details of the documents

Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EC) No. 768/2005 establishing a Community Fisheries Control Agency: (37402), 15395/15, COM(15) 669.

Previous Committee Reports

Twenty-fourth Report HC 342-xxiii (2015–16), chapter 4 (24 February 2016) and Fifteenth Report HC 71-xiii (2016–17), chapter 2 (26 October 2016).

38 (37406), 15403/15: Twentieth Report HC 342–xix (2015–16), chapter 10 (20 January 2016); see other relevant chapters (37403), 15398/15: Eleventh Report HC 71-ix (2016–17), chapter 8 (14 September 2016); Sixth Report HC 71-iv (2016–17), chapter 7 (15 June 2016); Twenty-eighth Report HC 342-xxvii (2015–16), chapter 11 (13 April 2016); and Twenty-fifth Report HC 342-xxiv (2015–16), chapter 10 (9 March 2016).

39 (37401), 15390/15: Twenty-fourth Report HC 342-xxiii (2015–16), chapter 6 (24 February 2016).

40 All three proposals have been progressed simultaneously by written procedure in order to ensure consistency between each component, with final Council approval having been given on 14 September. The Regulation has now come into force (on 6 October 2016).

41 Setting out the Government Position on the JHA Opt-in. See the fourth and fifth paragraphs.

42 Relating to the Area of Freedom, Security and Justice.

16 December 2016