TOOTHFISH: CATCH DOCUMENTATION SCHEME
Letter from Rt Hon Geoff Hoon MP, Minister
for Europe, Foreign and Commonwealth Office to the Chairman
An Explanatory Memorandum relating to the above
was deposited by the Foreign and Commonwealth Office on 7 October
2004, and cleared by the Committee. I am now writing to update
you on further developments concerning the UK's position in respect
of the adoption of this draft EC Regulation. Regrettably, we have
been unable to resolve some textual difficulties, and therefore
intend to abstain when the Regulation is considered at a meeting
of the Council of the European Union on 27 June.
The Explanatory Memorandum deposited by the
Foreign and Commonwealth Office explained that the proposed Council
Regulation 2004/0179 (CNS) amending Council Regulation (EC) No
1035/2001 would be subject to further review at the next annual
meeting of the Commission for the Conservation of Antarctic Marine
Living Resources (CCAMLR) in Hobart in November 2004. Concerns
were in fact raised prior to that meeting over the definitions
of certain terms such as "import", "export",
"re-export", "trans-shipment" and "landing"
which were not defined in the existing CCAMLR Conservation Measure.
Draft Council Regulation 2004/0179 was therefore put on hold,
pending the agreement of a revised Conservation Measure. Following
CCAMRL 2004, an intersessional group of CCAMLR Parties corresponded
to define these terms. Definitions were agreed at the CCAMLR meeting
in November 2005 and the CCAMLR Conservation Measure was amended
accordingly.
To reflect the outcome of the CCAMLR meeting,
amendments to the draft text were tabled at expert level in the
Council of Ministers. These amendments followed precisely the
definitions of the CCAMLR Conservation Measure as amended. The
UK argued that this was inappropriate and undesirable, however
the Commision stuck by them and received the support of all other
Member States.
The UK's concerns reflect a fundamental principle
of the Catch Documentation Scheme which is that the movement of
toothfish between Member States, ie internal movement within the
Community, or intra-Community movement, has not been considered
as an import, export or re-export. Imports are only registered
when a consignment (ie of toothfish) first enters the Territory
of a Member State of the Community. Only if the consignment subsequently
leaves the Community for a third State is an export (or more likely
re-export) registered.
The proposed amendments to Council Regulation
No 1035/2001 mirror those adopted by CCAMLR in November 2005.
However, those definitions cause technical difficulties when applied
to intra-Community movements. The terms "export" and
"re-export" explicitly refer not just to "the geographical
territory under the control of a State", but also to "free
trade zone of landing" and "customs union". However,
the definition of "import" is silent on these latter
terms referring instead only to the "geographical territory
under the control of a State". The incorporation of the definitions
of CCAMLR into Community law would therefore seem to overturn
the practice to date of regarding intra-Community movements as
not constituting "imports".
The UK believes that the principle of free internal
movement will be overridden on the face of the draft Council Regulation,
if it is adopted in its current form. We believe that the definitions
in the Regulation should, as appropriate, have been tailored to
the needs of EU Member States. This we believe could easily be
accomplished by minor amendments to the draft Regulation without
in any way undermining the intent behind the CCAMLR Conservation
Measure. The technical drafting problems in the Measure could
then be dealt with in CCAMLR if necessary.
Attempts by the UK to reach agreement with other
Member States on a more appropriate Council Regulation text have
failed. This is of course regrettable. We have received some informal
reassurances from the Council Legal Service that the provisions
of Community law on free movement of goods will override the requirements
of the CDS Regulation to monitor intra-Community imports of toothfish,
and that the Commission could not bring infraction proceedings
against a Member State which did not implement the Regulation
in this respect ie the Regulation can effectively be ignored.
We believe the CLS's approach is correctly argued but unsatisfactory
because it will result in apparently conflicting legal obligations,
and that it would be preferable to redraft the proposal rather
than accept the current text. Since we have no support for this
position, the UK now intends to abstain when the draft Regulation
is considered by the Council of the European Union on 27 June
2006. Abstention reflects the fact that the UK has no difficulties
with the principle of the draft Regulation, but regards some of
the technical content of the text as inappropriate.
22 June 2006
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