Brussels, 09/02/2015 (Agence Europe) - Despite the latest ruling by the Court of Justice of the EU (joined cases C-103/12 and C-165/12) on the legal basis for fisheries agreements between the EU and third countries, the legal wrangling between the Council and the Commission (supported by the Parliament) shows no sign of abating.
On Monday 9 February, the Council adopted the legal acts, without debate, on the new EU-Sao Tome and Principe fisheries agreement. The new protocol came into effect (provisionally) on 23 May 2014 for a period of four years. It allows 34 EU vessels (28 tuna seiners and six surface longliners) to fish in Sao Tome and Principe waters. The annual financial contribution was set at €710,000 for the first three years and €675,000 for the fourth.
Legal quarrel
In its ruling of 24 November 2014, the Court of Justice annulled Council Decision 2012/19/EU of 16 December 2010 on the declaration on the granting of fishing opportunities in EU waters to Venezuelan fishing vessels in the exclusive economic zone off the coast of French Guiana. “The Court of Justice clearly confirmed that decisions relating to the conclusion of external fisheries agreements fall fully within the scope of Article 43(2) TFEU (Treaty on the Functioning of the EU) and rejected the position that such decisions could fall within the scope of Article 43(3) TFEU”, states the Commission in a statement. With regard to the EU-Sao Tome and Principe agreement, the Commission “regrets the Council's amendment replacing the legal basis of Article 43(2) (co-decision procedure between the Council and the Parliament) with Article 43 (without mentioning the paragraph)”.
In a separate statement, the Council says it “disagrees” with the Commission statement according to which it would flow from the judgment that all decisions on the conclusion of external fisheries agreements fall within the scope of Article 43(2) TFEU.
The Council considers that no such conclusion can be drawn from that judgment. “The choice of the legal basis for a Union act must be based on objective factors which are amenable to judicial review and which include, in particular, the aim and content of the measure in question”, the Council argues. In the specific case of the European Union declaration to Venezuela, the Court took the view that the aim of the declaration was not to ensure the fixing and allocation of fishing opportunities. “However, the present Protocol contains a crucial element of fixing fishing opportunities available to the Union in the waters over which the Democratic Republic of Sao Tome and Principe has sovereignty or jurisdiction”, the Council says. Consequently, in view of the aim and the content of the protocol, which includes the fixing and allocation of fishing opportunities within the meaning of Article 43(3) TFEU, it is appropriate, in the view of the Council, that the substantive legal basis for the decision on the conclusion of the protocol refers to Article 43 TFEU as a whole.
Protection of sharks. In a further statement, the United Kingdom and the Netherlands recognise progress on areas of concern in the recently negotiated proposal for the renewal of the EU-Sao Tome and Principe agreement. Both delegations regret that this protocol contains no clear management system to provide for the necessary protection of sharks. Direct fishery and by-catches of shark are a concern in tuna fisheries in the Atlantic Ocean, they say. The United Kingdom and the Netherlands decided, therefore, to abstain from voting on the text and would wish to see the EU putting forward shark management measures in any future Joint Committee meetings under this protocol.
Seychelles. The Council also adopted, without debate, the decision on the conclusion of the agreement between the EU and the Republic of the Seychelles on access for fishing vessels flying the flag of the Seychelles to waters and marine biological resources of Mayotte, under the jurisdiction of the European Union. This text follows on from the change to the status of Mayotte which became an outermost region of the EU on 1 January 2014. Council and Commission statements also relate to the argument over the legal basis of fisheries agreements between the EU and third countries. (Lionel Changeur)