Select Committee on European Union Fortieth Report


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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