Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea and repealing Decision (EU) 2019/866

EXPLANATORY MEMORANDUM

This proposal concerns a Decision establishing the position to be taken on the behalf of the European Union at meetings of the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea for the period 2024-2028 in connection with the envisaged adoption of conservation and management measures.

The Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (Bering Sea Convention) aims, by establishing the annual Conference of the Parties to the Convention, to ensure the long-term conservation and sustainable use of pollock resources in the Convention area. The Convention entered into force on 8 December 1995.

The Republic of Poland is a contracting party to the Bering Sea Convention. The EU is not a party to the Convention. In accordance with Article 6(9) of the Accession Act ¹ , fisheries agreements that Member States have concluded with non‑EU countries are to be managed by the EU and the EU is to implement any decisions established under them.

Council Decision 7277/16 of 11 April 2016 authorised Poland to negotiate, in the interest of the EU, an amendment to the Bering Sea Convention with a view to the EU becoming a contracting party. In October 2016, Poland proposed to the Bering Sea Convention Depositary such an amendment. The respective negotiation is still not completed. Council Decision (EU) 2023/575 of 9 March 2023 authorised Poland to ratify, in the interest of the European Union, the amendment to the Bering Sea Convention that would allow the participation of the EU as a party to that Convention. It is understood that, once the EU is accepted as a full contracting party, Poland will withdraw its membership.

The annual Conference of the Parties is the body established by the Bering Sea Convention to be responsible for the management and conservation of pollock resources in the Convention area. It adopts conservation and management measures to ensure the long-term conservation and sustainable use of fishery resources under its purview.

As a member of the annual Conference of the Parties, Poland has participation and voting rights. As the EU is not a party to the Convention, and the Bering Sea Convention’s scope falls under exclusive competent of the EU, Poland is represented by the Commission at the annual Conference of the Parties. The annual Conference of the Parties usually takes its decisions by consensus.

The annual Conference of the Parties has the authority to adopt measures for the fisheries under its purview and these are binding on the contracting parties.

The measures agreed by the contracting parties enter into force immediately after the contracting parties have been notified of them.

The position to be adopted on behalf of the EU at the annual meetings of regional fisheries management organisations (RFMOs) is currently established according to a two‑tier approach. A Council Decision sets out the guiding principles and orientations of the EU’s position on a multiannual basis and it is subsequently adjusted for each annual meeting by Commission services non-papers to be endorsed by the Council.

For the annual Conference of the Parties, this approach is implemented by the Council Decision (EU) 2019/866 of 14 May 2019, which sets out the EU’s position in the Bering Sea Convention for the period 2019-2023. The Decision contains general principles and orientations, but also takes into account to the extent possible the specificities of the Bering Sea Convention. In addition, it sets out the standard process for establishing the EU’s position year by year, as requested by Member States.

Council Decision (EU) 2019/866 provides for a review of the EU’s position before the 2024 annual meeting. Therefore, this proposal sets out the EU’s position in the Bering Sea Convention for the period 2024-2028, thereby replacing the Council Decision (EU) 2019/866.

Council Decision (EU) 2019/866 incorporated the principles and orientations of the new common fisheries policy, as laid down in Regulation (EU) No 1380/2013 of the European Parliament and of the Council ² , also taking into account the objectives set out in the Commission Communication on the external dimension of the common fisheries policy ³ . Moreover, it adjusted the EU’s position to the Treaty of Lisbon

The current revision takes into consideration, in relation to fishing, the European Green Deal, notably Biodiversity ⁴ , Climate Adaptation ⁵ and Farm to Fork Strategies ⁶ . It also takes into account the Plastics Strategy ⁷ and the Zero pollution Action Plan ⁸ . Furthermore, it also takes into consideration, the International Ocean Governance Joint Communication ⁹ .

Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the EU’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement’.

‘Acts having legal effects’ include acts that have legal effects by virtue of the rules of international law governing the body in question, and instruments that do not have a binding effect under international law but are ‘capable of decisively influencing the content of the legislation adopted by the EU legislature’ ¹⁰ .

The annual Conference of the Parties is a body set up by an agreement, namely the Bering Sea Convention.

The acts that the annual Conference of the Parties is called upon to adopt constitute acts having legal effects. The envisaged acts are to be binding under international law in accordance with the Bering Sea Convention and are capable of decisively influencing the content of EU legislation, including:

• Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing ¹¹ ; 

• Council Regulation (EC) No 1224/2009 establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy ¹² ; and

• Regulation (EU) 2017/2403 of the European Parliament and of the Council of 12 December 2017 on the sustainable management of external fishing fleets ¹³ .

The envisaged acts do not supplement or amend the institutional framework of the Bering Sea Convention.

Therefore, the procedural legal basis for the proposed Decision is Article 218(9) TFEU.

The substantive legal basis for a Decision under Article 218(9) TFEU depends primarily on the objective and content of the envisaged act in respect of which a position is taken on the EU’s behalf. If that act pursues two aims or has two components, and if one of those aims or components is identifiable as the main one, whereas the other is merely incidental, the Decision under Article 218(9) TFEU must be founded on a single substantive legal basis, namely that required by the main or predominant aim or component.

The main objective and content of the envisaged act relate to fisheries. Regulation (EU) No 1380/2013 is the legal act setting out the principles to be reflected in this position.

Therefore, the substantive legal basis of the proposed Decision is Article 43(2) TFEU. The Decision is to replace Council Decision (EU) 2019/866.

The legal basis of the proposed Decision should be Article 43(2) TFEU, in conjunction with Article 218(9) TFEU.

COUNCIL DECISION

on the position to be taken on behalf of the European Union in the annual Conference of the Parties to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea and repealing Decision (EU) 2019/866

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43(2), in conjunction with Article 218(9) thereof,

Having regard to the proposal from the European Commission,

Whereas:

1. The Republic of Poland is a Contracting Party to the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (‘Bering Sea Convention’). The Union is not a Party to that Convention. In accordance with Article 6(9) of the Accession act ¹⁴ , fisheries agreements concluded by Member States with third countries are managed by the Union and the Union should implement any decisions established under the Bering Sea Convention.

2. Council Decision 7277/16 of 11 April 2016 authorised the Republic of Poland to negotiate, in the interest of the Union, an amendment to the Bering Sea Convention with a view for the Union to becoming a Party to that Convention. In October 2016, Poland proposed such an amendment to the Bering Sea Convention to the Depositary of that Convention.

3. Council Decision (EU) 2023/575 of 9 March 2023 authorised Poland to ratify, in the interest of the European Union, the amendment to the Bering Sea Convention that would allow the participation of the Union as party to that Convention ¹⁵ . It is understood that upon the acceptance of the Union as a full Party to the Bering Sea Convention, the Republic of Poland will withdraw its membership from the Convention.

4. The annual Conference of the Parties to the Bering Sea Convention (‘the annual Conference of the Parties’) is responsible for the management and conservation of the Pollock Resources in the Bering Sea Convention Area. Such measures may become binding upon the Union.

5. Regulation (EU) No 1380/2013 of the European Parliament and of the Council ¹⁶  provides that the Union is to ensure that fishing and aquaculture activities are environmentally sustainable in the long-term and are managed in a way that is consistent with the objectives of achieving economic, social and employment benefits, and of contributing to the availability of food supplies. It also provides that the Union is to apply the precautionary approach to fisheries management, and is to aim to ensure that exploitation of living marine biological resources restores and maintains the population of harvested species above levels which can produce the maximum sustainable yield. It further provides that the Union is to take management and conservation measures based on best available scientific advice, to support the development of scientific knowledge and advice, to gradually eliminate discards and to promote fishing methods that contribute to more selective fishing and the avoidance and reduction, as far as possible, of unwanted catches, to fishing with low impact on marine ecosystem and fishery resources. Besides, Regulation (EU) No 1380/2013 specifically provides that those objectives and principles are to be applied by the Union in the conduct of its external fisheries relations.

6. In line with the Biodiversity ¹⁷ , Climate Adaptation ¹⁸ and Farm to Fork Strategies ¹⁹ , it is essential to protect nature and reverse the degradation of ecosystems. The risks stemming from climate change and loss of biodiversity must not jeopardise the availability of the goods and services that healthy marine ecosystems provide to fishers, coastal communities and humanity at large.

7. The Plastics Strategy ²⁰ refers to specific measures to reduce plastics and marine pollution as well as the loss or abandonment at sea of fishing gear. Furthermore, the Zero pollution Action Plan ²¹ aims at reducing by 50% plastic litter at sea and by 30% micro-plastics released into the environment.

8. Under the International Ocean Governance Joint Communication ²² , marine biodiversity protection and conservation are key priorities under the EU’s external action The EU is the most prominent actor in Regional Fisheries Management Organisations (RFMOs) and fisheries bodies worldwide. There, the EU promotes the sustainability of fish stocks, promotes transparent decision-making based on sound scientific advice, enhances scientific research, and strengthens compliance. 

9. It is appropriate to establish the position to be taken on the Union’s behalf in the meetings of the annual Conference of the Parties to the Bering Sea Convention for the period 2024-2028, as the Bering Sea Convention conservation and enforcement measures will be binding on the Union and capable of decisively influencing the content of Union law, namely, Council Regulation (EC) No 1005/2008 ²³ ; Council Regulation (EC) No 1224/2009 ²⁴ ; and Regulation (EU) 2017/2403 of the European Parliament and of the Council ²⁵ . 

10. Under current practice, the Commission, as the external representative of the Union with regard to the exclusive Union competence in fisheries, represents the Republic of Poland and the Union at the annual Conference of the Parties of the Bering Sea Convention.

11. Currently, the position to be taken on the Union’s behalf in the meetings of the annual Conference of the Parties to the Bering Sea Convention is established by Council Decision (EU) 2019/866 ²⁶ . It is appropriate to repeal that Decision and establish a new Decision for the period 2024-2028.

12. In view of the evolving nature of fishery resources in the Bering Sea Convention Area and the consequent need for the Union’s position to take account of new developments, including new scientific and other relevant information presented before or during the meetings of the annual Conference of the Parties, procedures should be established for the year-to-year specification of the Union’s position for the period 2024-2028. Those positions should be in line with the principle of sincere cooperation among the Union institutions enshrined in Article 13(2) of the Treaty on the European Union.  

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on the Union’s behalf in the meetings of the annual Conference of the Parties to the Bering Sea Convention is set out in Annex I of this Decision.

Article 2

The year-to-year specification of the Union’s position to be taken in the meetings of the annual Conference of the Parties to the Bering Sea Convention shall be conducted in accordance with Annex II.

Article 3

The Union’s position set out in Annex I shall be assessed and, where appropriate, revised by the Council upon a proposal from the Commission, at the latest for the annual Conference of the Parties to the Bering Sea Convention in 2029.

Article 4

Decision (EU) 2019/866 is repealed.

Article 5

1.    Without prejudice to the prerogatives of the Commission on external representation of the Union, this Decision is addressed to the Republic of Poland until the accession of the Union to the Bering Sea Convention..

2.    After the accession of the Union to the Bering Sea Convention, this Decision is addressed to the Commission which shall represent the Union at the meetings of the annual Conference of the Parties to the Bering Sea Convention.

Done at Brussels,

ANNEX I

The position to be taken on the Union’s behalf in the in the annual Conference of the Parties to the Bering Sea Convention

In the framework of the Bering Sea Convention, the Union shall:

1. ensure that measures adopted within the annual Conference of the Parties of Bering Sea Convention are consistent with international law, and in particular with the provisions of the 1982 UN Convention on the Law of the Sea, the 1995 UN Agreement relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, the 1993 Agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas, and the 2009 Food and Agriculture Organization Port State Measures Agreement;

2. promote the objectives of the Agreement under the United Nations Convention on the Law of the Sea on the conservation and sustainable use of marine biological diversity of areas beyond national jurisdiction (BBNJ) and at the 15th Conference of the Parties to the Convention on Biological Diversity (COP 15), in particular as regards stepping up the protection of marine biodiversity and the protection of 30 % of the world’s ocean through marine protected areas;

3. contribute to the implementation of European Green Deal, including the Biodiversity and Climate Adaptation Strategies, notably concerning the protection of nature, and Farm to Fork strategies, and a stronger Europe in the world;

4. pursue the objectives of the Plastics Strategy and the Zero pollution Action plan, notably the reduction of plastics and marine pollution;

5. act in accordance with the objectives and principles pursued by the Union within the common fisheries policy, notably through the precautionary approach and the aims related to the maximum sustainable yield as laid down in Article 2(2) of Regulation (EU) No 1380/2013, to promote the implementation of an ecosystem-based approach to fisheries management, to avoid and reduce, as far as possible, unwanted catches, and gradually eliminate discards, and to minimise the impact of fishing activities on marine ecosystems and their habitats, as well as, through the promotion of economically viable and competitive Union fisheries, to provide a fair standard of living for those who depend on fishing activities and taking account of the interests of consumers;

6. be in line with the Council Conclusions of 19 March 2012 on the Commission Communication on the external dimension of the common fisheries policy ¹ ;

7. be in line with the objectives of the Joint Communication on the EU’s International Ocean Governance agenda ² regarding marine biodiversity conservation, as well as the Council conclusions on that Joint Communication; ³  

8. work towards an appropriate involvement of stakeholders in the preparation phase for Bering Sea Convention measures and ensure that measures adopted within the Bering Sea Convention are in accordance with the objectives of the Bering Sea Convention;

9. promote positions consistent with the best practices of regional fisheries management organisations (RFMOs);

10. seek consistency and synergy with the policy that the Union is pursuing as part of its bilateral fisheries relations with third countries, and ensure coherence with its other policies notably in the field of external relations, environment, trade, development, research and innovation;

11. aim to create a level playing field for the Union fleet within the Bering Sea Convention Area based on the same principles and standards as those applicable under Union law, and to promote the uniform implementation of those principles and standards;

12. promote coordination between the Bering Sea Convention, existing RFMOs and regional sea conventions (RSCs) and cooperation with global organisations, as applicable, within their mandates, where appropriate;

13. promote cooperation mechanisms amongst non-tuna RFMOs similar to the so-called Kobe process for tuna RFMOs.

The Union shall, where appropriate, endeavour to support the adoption of the following actions by the annual Conference of the Parties:

1. conservation and management measures for fisheries resources in the Bering Sea Convention area based on the best scientific advice available, including Allowable Harvest Level (AHL) and individual national quotas or effort regulation for living marine biological resources regulated by the annual Conference of the Parties, including changing Annex to the Bering Sea Convention, which would achieve the maximum sustainable yield exploitation rate on a progressive, incremental basis. Where necessary, those conservation and management measures shall include specific measures for stocks, which suffer from overfishing to keep the fishing effort in line with available fishing opportunities;

2. measures to promote the conservation and full restoration of biodiversity, the sustainability of the stocks, and the integration of climate change considerations in the decision-making process;

3. measures to promote data collection, scientific research and science-based management decisions, the strengthening of its compliance committee, a culture of compliance and periodical independent performance reviews;

4. measures to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing activities in the Bering Sea Convention area, including IUU vessel listing and cross-listing with other RFMOs, and measures to promote the traceability of fish and fishery products based on the Voluntary Guidelines for Catch Documentation Schemes;

5. monitoring, control and surveillance measures in the Bering Sea Convention area in order to ensure efficiency of control and compliance with measures adopted within the Bering Sea Convention including the strengthening of control on transhipment operations based on the FAO Voluntary Guidelines for Transshipment;

6. measures to minimise the negative impact of fishing activities on marine biodiversity and marine ecosystems and their habitats, including protective measures for vulnerable marine ecosystems in the Bering Sea Convention area in line with the Bering Sea Convention and the FAO International Guidelines for the Management of Deep-sea Fisheries in the High Seas, measures to avoid and reduce as far as possible unwanted catches, including in particular vulnerable marine species, and to gradually eliminate discards;

7. measures to reduce marine pollution and prevent the discharge of plastics at sea and reduce the impact on marine biodiversity and ecosystems of plastics present at sea, including measures to reduce the impact of Abandoned, Lost or Otherwise Discarded Fishing Gear (ALDFG) in the ocean and to facilitate the identification and recovery of such gear based on the FAO Voluntary Guidelines on the Marking of Fishing Gear;

8. measures aimed at the prohibition of fisheries conducted solely for the purpose of harvesting shark fins and requiring that all sharks are landed with each fin naturally attached;

9. recommendations, where appropriate and to the extent permitted under the relevant constituent documents, encouraging the implementation of the Work in Fishing Convention of the International Labour Organisation (ILO);

10. common approaches with other RFMOs, where appropriate, in particular those involved in fisheries management in the same region;

11. developing approaches related to tackling impacts of non-fishing activities on the marine biological resources in the Bering Sea Convention area;

12. additional technical measures based on advice from the subsidiary bodies and working groups of annual Conference of the Parties of the Bering Sea Convention.

ANNEX II

Year to year specification of the Union’s position to be taken

at the annual Conference of the Parties

Before each meeting of the annual Conference of the Parties, when that body is called upon to adopt decisions having legal effects on the Union, the necessary steps shall be taken so that the position to be expressed on the Union's behalf takes account of the latest scientific and other relevant information transmitted to the Commission, in accordance with the principles and orientations set out in Annex I.

To this effect, and based on that information, the Commission shall transmit to the Council, or to its preparatory bodies, in sufficient time before each meeting of the annual Conference of the Parties, a written document setting out the particulars of the proposed specification of the Union’s position for discussion and endorsement of the details of the position to be expressed on the Union's behalf.

If in the course of a meeting of the annual Conference of the Parties it is impossible to reach an agreement, including on the spot, in order for the Union’s position to take account of new elements, the matter shall be referred to the Council or its preparatory bodies.