REPORT on the proposal for a Council regulation on the management of fishing fleets registered in the outermost regions
    (COM(2003) 175 – C5‑0243/2003 – 2003/0062(CNS))

    26 November 2003 - *

    Committee on Fisheries
    Rapporteur: Margie Sudre

    Procedure : 2003/0062(CNS)
    Document stages in plenary
    Document selected :  
    A5-0409/2003
    Texts tabled :
    A5-0409/2003
    Debates :
    Texts adopted :

    PROCEDURAL PAGE

    By letter of 26 May 2003 the Council consulted Parliament, pursuant to Article 37 of the EC Treaty, on the proposal for a Council regulation on the management of fishing fleets registered in the outermost regions (COM(2003) 175 – 2003/0062(CNS)).

    At the sitting of 2 June 2003 the President of Parliament announced that he had referred the proposal to the Committee on Fisheries as the committee responsible and the Committee on the Environment, Public Health and Consumer Policy and to the Committee on Regional Policy, Transport and Tourism for their opinions (C5‑0243/2003).

    The Committee on Fisheries had appointed Margie Sudre rapporteur at its meeting of 20 May 2003.

    The committee considered the Commission proposal and draft report at its meetings of 10 June, 8 July, 9 September, 2 October and 24 November 2003.

    By letter of 4 November 2003 the Committee on Legal Affairs and the Internal Market notified the Committee on Fisheries that it had decided to deliver an opinion on the proposal's legal basis pursuant to Rule 63(3).

    At the last meeting it adopted the draft legislative resolution by 13 votes, with 1 abstention.

    The following were present for the vote: Struan Stevenson (chairman), Rosa Miguélez Ramos (vice-chairwoman), Margie Sudre (rapporteur), Elspeth Attwooll, Niels Busk, Giovanni Claudio Fava, Ian Stewart Hudghton, Heinz Kindermann, Carlos Lage, Giorgio Lisi, Ioannis Marinos, James Nicholson (for Brigitte Langenhagen), Bernard Poignant, Catherine Stihler and Daniel Varela Suanzes-Carpegna.

    The opinion of the Committee on Legal Affairs and the Internal Market on the legal basis is attached. The Committee on the Environment, Public Health and Consumer Policy decided on 11 June 2003 not to deliver an opinion and the Committee on Regional Policy, Transport and Tourism decided on 21 May 2003 not to deliver and opinion.

    The report was tabled on 26 November 2003.

    DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

    on the proposal for a Council regulation on the management of fishing fleets registered in the outermost regions

    (COM(2003) 175 – C5‑0243/2003 – 2003/0062(CNS))

    (Consultation procedure)

    The European Parliament,

    –   having regard to the Commission proposal to the Council (COM(2003) 175)[1],

    –   having regard to Article 37 of the EC Treaty, pursuant to which the Council consulted Parliament (C5‑0243/2003),

    –   having regard to the opinion of the Committee on Legal Affairs and the Internal Market on the proposed legal basis,

    –   having regard to Rules 67 and 63 of its Rules of Procedure,

    –   having regard to the report of the Committee on Fisheries (A5‑0409/2003),

    1.   Approves the Commission proposal as amended;

    2.   Calls on the Commission to alter its proposal accordingly, pursuant to Article 250(2) of the EC Treaty;

    3.   Calls on the Council to notify Parliament if it intends to depart from the text approved by Parliament;

    4.   Asks the Council to consult Parliament again if it intends to amend the Commission proposal substantially;

    5.   Instructs its President to forward its position to the Council and Commission.

    Text proposed by the CommissionAmendments by Parliament
    Amendment 1
    Citation 1

    Having regard to the Treaty establishing the European Community, and in particular Article 37 thereof,

    Having regard to the Treaty establishing the European Community, and in particular Article 299(2) thereof,

    Justification

    Article 299(2) is the appropriate legal basis.

    Amendment 2
    Recital 2 a (new)
     

    (2a)   Article 299(2) of the Treaty recognises the particular handicaps affecting the economic and social situation of the outermost regions, made worse by their remoteness and insularity. The same also applies to the fishing industry.

    Justification

    Reference should be made to Article 299(2) which is the article that concerns the OR.

    Amendment 3
    Article 1, paragraph 2

    2.   Implementing rules for this Article shall be adopted in accordance with the procedure referred to in Article 5.

    2.   Implementing rules for this Article shall be adopted in accordance with the procedure referred to in Article 5 and must be the same for all outermost regions with no possibility of discrimination.

    Justification

    The amendment is self-explanatory.

    Amendment 4
    Article 2, point 1a (new)
     

    1a.   by way of derogation from Article 9(1)(a) of Regulation No 2792/1999, public aid to renovate the fleet in terms of tonnage and/or power may be granted until 31 December 2006;

    Justification

    Regulation 2792/1999 states in Article 9(1)(a) that public aid for the renewal of fishing vessels may be granted until 31 December 2004. It is necessary to make a derogation from this provision to allow for aid to be granted until 31 December 2006.

    Amendment 5
    Article 2, point 3

    3.   the derogations laid down in paragraphs 1 and 2 shall cease to apply as soon as the reference levels are reached, and in any case not later than 31 December 2006.

    3.   the derogations laid down in points 1 and 2 shall cease to apply as soon as the reference levels are reached.

    Justification

    Since it is proposed aid can continue to be committed until 2006, it is necessary to extend the derogation for payments until the necessary reference levels are reached.

    Amendment 6
    Article 5 a (new)
     

    Article 5a

     

    Reporting

     

    The Commission shall report on the implementation of these measures by 31 December 2006. With particular regard to the measures referred to in Article 2, it shall suggest any adjustments that may be required in the light of changes in the social and economic needs of the regions concerned and the state of the fish stocks fished by their fleets.

    Justification

    A review clause should be added for the evaluation of these measures in 2006, without prejudging whether they should be abolished definitively or extended.

    • [1] Not yet published in OJ.

    EXPLANATORY STATEMENT

    1.   The Commission Proposal

    Following the adoption of the new arrangements for the Community fleet capacity management in December 2002, OR[1] merited more favourable treatment than that accorded to continental fleets in view of their structural, social and economic situation.

    The Commission proposes to introduce two major waivers:

    -   from Article 13 (fleet entry/exit scheme) of Council Regulation (EC) 2371/2002

    and

    -   from Article 9(1)(c) (fleet modernisation aid) of Council Regulation (EC) 2792/1999 as amended by regulation (EC) 2369/2002

    By introduction of these waivers the Commission intention is to allow for a moderate fleet expansion with the aid from Structural Funds (FIFG) - provided stable resource situation.

    The Commission proposal also includes the following measures:

    –   reference levels for each OR fleet segment corresponding to the objectives of the multi-annual guidance programmes IV (MAGP IV) and the actual fishing opportunities where these objectives do not exist (Canary Islands);

    –   permit the use of public fleet construction and modernisation aid for this purpose,

    –   allowing expansion within the reference limits of the capacity determined for each segment; but once the reference level is reached the standard provisions of Community law shall apply;

    –   end of the waiver on 31 December 2006, this being the last payment date for aid under the general fleet renewal aid scheme, which terminates at the end of 2004;

    –   by way of derogation from the rules covering continental fleets, prevent any transfer of vessels from or to the continent;

    –   provide for adjustment of fleet management and control tools;

    –   provide for possible adoption of a Commission Regulation containing
    implementing rules.

    2.   Background

    Further to a critical decline in the Community 's fish stock the Council and the Commission decided to take the necessary measures and to adjust the CFP to the new situation. Therefore in December 2002, the Council after lengthy and difficult deliberations adopted the Regulation 2371/2002 on the conservation and sustainable exploitation of fisheries resources under the CFP.

    The Regulation which entered into force on 1 January 2003, provides for several major changes in the functioning of the CFP:

    –   fishing effort limitation fixed under multi-annual management plans

    –   fixing reference fleet levels based on MAGP IV objectives

    –   fleet entry/exit system 1 to 1

    –   the abolition of public aid for the renewal of the fleet after 31 December 2004

    –   elimination of aid for transfer of Community over capacity to the third countries

    –   restrictions concerning public aid for investment in fishing vessels

    –   introduction of recovery plans for stocks below Safe Biological Limits (SBL) and management plans for stocks of within SBL

    –   increased premiums for scrapping of vessels in order to achieve additional reductions in fishing efforts resulting from recovery plans for the period 2003-2006

    –   strengthen measures for enforcement and control

    –   establishment of a Regional Advisory Council (RAC)

    –   broadening of the remit of "Scientific Technical and Economic Committee for Fisheries (STECF)

    The Regulation also establishes the procedure whereby the Commission may decide on emergency measures to allow for immediate action the event of a serious threat to conservation of resources, giving in the same time the authority to adopt non discriminatory conservation and management measures within the 12 mile zone to the Member States'.

    The Member States in the event of serious and unpredicted threat to the resources can introduce emergency measures applicable to all vessels in waters under their jurisdiction, but not for longer than three months.

    The Council Regulation maintains the restrictions on the right to fish within 12 mile zone and confirms the continuos use of "Advisory Committee for Fisheries and Aquaculture" (ACFA).

    In recognition of the specific permanent social, economical and geographical handicaps of outermost regions (Article 299(2) of the Treaty), several important adjustments of the application of the Council Regulation 2371/2002 have been included in the Commission Proposal for a Council Regulation on the management of fishing fleets registered in the outermost regions (COM(2003) 175).

    3.   The Rapporteur's comments on the Commission proposal COM (2003)175

    The rapporteur broadly welcomes the Commission's proposal for a Council Regulation granting the OR some flexibility in the application of the CFP.

    On the detail of the proposal, the rapporteur makes the following specific comments:

    The Commission proposal takes Article 37 of the Treaty as the legal basis. The rapporteur regrets that there is no reference to Article 299(2) as the legal basis and believes it is vital that the legal basis should be changed.

    The third change is a proposal to draw up a report at the end of 2006 evaluating the measures undertaken.

    • [1] As referred to in Article 299(2) of the Treaty.

    OPINION OF THE COMMITTEE ON LEGAL AFFAIRS AND THE INTERNAL MARKET ON THE LEGAL BASIS,

    Mr Struan Stevenson

    Chairman

    Committee on Fisheries

    BRUSSELS

    Subject:   Legal basis of the proposal for a Council regulation on the management of fishing fleets registered in the outermost regions
    (COM(2003) 175 - C5-0243/2003 - 2003/0062(CNS))

    Dear Mr Chairman,

    By letter of 24 September 2003 you requested the Committee on Legal Affairs and the Internal Market to verify the legal basis of the above Commission proposal, which is based on Article 37 of the EC Treaty.

    Pursuant to the procedure set out in Rule 63 of the Rules of Procedure, the Committee on Legal Affairs and the Internal Market was asked for its opinion.

    Recital 3 of the above Commission proposal sets out the objective of adapting the provisions of the common fisheries policy 'given the relative importance of the fisheries sector in those regions, ... (in order) to take account of the particular structural, social and economic situation of the Community outermost regions in respect of management of fishing fleets'.

    Recital 4 lays down the objective of limiting 'any capacity increase for fleets registered in ports of outermost regions to that justified by local fishing opportunities and (keeping) the size of fleets in balance with those opportunities. To that end, the objectives fixed by the multiannual guidance programmes IV (MAGP IV) should be considered as reference levels for, or the upper limit to, the expansion of fleets registered in the French overseas departments, the Azores and Madeira'.

    In order to pursue these objectives, Article 1 of the proposal for a regulation lays down specific reference levels for fishing capacity for the fleet segments registered in the outermost regions as indicated in Article 299(2) of the EC Treaty.

    For the fleet segments covered by Article 1(1) of the proposal for a regulation, Article 2 derogates from the general provisions of the common fisheries policy and in particular from:

    -   Article 13 of Council Regulation (EC) No 2371/2002 relating to the entry and exit scheme;

    -   Article 9(1)(c) of Council Regulation (EC) No 2792/1999 on aid for fleet modernisation[1].

    The proposal for a regulation also contains provisions on the transfer of vessels to the continent (Article 3) and on the management of capacity registered in the outermost regions (Article 4).

    The basic question is to determine whether Article 37 or Article 299 of the EC Treaty is the appropriate legal basis for the proposal for a regulation.

    In this particular case, the fact of the matter is that both Article 37(2) of the EC Treaty and Article 299(2) of the EC Treaty provide for adoption by the Council acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament.

    According to settled case law, in the context of the organisation of the powers of the Community the choice of the legal basis for a measure must be based on objective factors which are amenable to judicial review. Those factors include, in particular, the aim and the content of the measure[2].

    It is necessary to examine whether the measures laid down in the proposal for a regulation relate mainly to a particular field of action having only incidental effects on other policies and whether it follows from the aim and content of the proposal for a regulation as enshrined in its actual wording that it relates inseparably both to the fishery sector and the outermost regions.

    However, a dual legal basis is not admissible where the enabling provisions provide for incompatible procedures[3]. Use of a dual legal basis might therefore be likely to divest the consultation procedure of its very substance.

    Article 37 of the EC Treaty relates to agricultural policy. This provision must be interpreted in the light of Article 32 of the EC Treaty and of Annex I (ex-Annex II) to the EC Treaty. Article 32(1) states that 'agricultural products' means the products of the soil, of stockfarming and of fisheries and products of first-stage processing directly related to these products. The operation and development of the common market for agricultural products must be accompanied by the establishment of a common agricultural policy (Article 32(4)).

    The Court of Justice has ruled that Article 37 is the appropriate legal basis for all legislation relating to the production and marketing of the agricultural products listed in Annex II to the Treaty which contribute to the attainment of one or more of the objectives of the common agricultural policy as set out in Article 33 of the Treaty[4].

    Article 299 of the EC Treaty provides for the territorial application of that Treaty. Paragraph 2 empowers the Council to adopt, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, specific measures aimed, in particular, at laying down the conditions of application of the EC Treaty to the regions of the Azores, Madeira and the Canary Islands.

    The Council has to adopt the measures taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.

    On 4 November 2003, in the light of the considerations set out above and of the case law of the Court of Justice of the European Communities, the Committee on Legal Affairs and the Internal Market decided unanimously that the proposal for a regulation must be based on Article 299(2) of the EC Treaty[5].

    Yours sincerely,

    Giuseppe Gargani

    • [1] Council Regulation (EC) No 2792/1999 of 17 December 1999 laying down the detailed rules and arrangements regarding Community structural assistance in the fisheries sector, OJ L 337, 30.12.1999, p.10.
    • [2] See in particular the Judgment of 23 February 1999 in Case C-42/97 Parliament v. Council [1999] ECR I-00869, point 36.
    • [3] Judgment of 11 June 1991 in Case C-300/89 Commission v. Council [1991] ECR I-2867, points 17-21.
    • [4] See Judgment of 23 February 1988 in Case 68/86 United Kingdom v. Council [1988] ECR 855 and Judgment of 23 February 1988 in Case 131/86 United Kingdom v. Council [1988] ECR 905.
    • [5] The following were present for the vote: Giuseppe Gargani (chairman), Ioannis Koukiadis, Willi Rothley (vice-chairmen), François Zimeray (rapporteur), Bert Doorn, Janelly Fourtou, Marie-Françoise Garaud, Malcolm Harbour, Hans Karlsson, Kurt Lechner, Klaus-Heiner Lehne, Sir Neil MacCormick, Manuel Medina Ortega, Marcelino Oreja Arburúa, Barbara O'Toole, Fernando Pérez Royo, Imelda Mary Read and Diana Wallis.