by
R. Simonnet
Director
Directorate A - Resources
Directorate General - Fisheries
Commission of European Communities
1. MEMBERS AND CONSTITUTIVE INSTRUMENTS OF THE EUROPEAN ECONOMIC COMMUNITY
Since 1 January 1981, ten European States are members of the European Economic Community: Belgium, Denmark, France, the Federal Republic of Germany, Greece, Italy, Luxembourg, the Netherlands, and the United Kingdom.
The treaty establishing the European Economic Community (EEC) was signed in Rome on 25 March 1957 by the original six founding States. After ratification by the signatory States, the treaty entered into force on 1 January 1958 1/.
1
/ The treaty establishing the EEC was registered with the United Nations Secretariat on 24 April 1958 (United Nations Treaty Series, Vol. 294, No. 4300)
Under the treaty signed at Brussels on 22 January 1972, Denmark, Ireland and the United Kingdom acceded to the treaty of Rome and became EEC members as from 1 January 1975. Greece became by 1 January 1981 the tenth member of the EEC under the treaty of accession signed in Athens on 28 May 1979. Accession negotiations between the Community and Portugal and Spain have been initiated with a view to their accession to the Community.
2. AREAS AND MODALITIES OF COMPETENCE OF THE EUROPEAN ECONOMIC COMMUNITY
According to Article 2 of the EEC treaty: "The Community shall have as its task, by establishing a common market and progressively approximating the economic policies of member States, to promote throughout the Community a harmonious development of economic activities, a continuous and balanced expansion, an increase in stability, an accelerated raising of the standard of living and closer relations between the States belonging to it".
Community action for the attainment of these objectives comprises:
- The creation of a custom union covering all trade in goods and involving the prohibition between member States of customs duties on imports and exports and all charges having equivalent effect. The adoption of a common customs tariff in relation with third countries and the establishment of a common commercial policy towards third countries.- The establishment of a common policy within the sphere of agriculture, including fisheries.
- The abolition, as between member States, of obstacles to the freedom of movement for persons, services and capital.
- The adoption of a common policy in the sphere of transport.
- The institution of a system ensuring that competition in the common market is not distorted.
- The coordination of the economic policies of its member States, including i.a. common action within the framework of international organizations of an economic character in matters which are of particular interest to the common market.
- The approximation of legislation in member States, to the extent required for the establishment or functioning of the common market.
The list of actions entrusted to the EEC is not exhaustive. The process of integration in which the member States are engaged is of an evolutionary character and can extend to new spheres of activity when such extension should prove necessary to attain one of the objectives of the Community. To specify in detail the matters over which competence might develop is difficult due to the general terms used in this respect in the treaty instituting the Community. As example, could be mentioned the adoption by the Community of an environmental policy.
All measures decided by the competent institutions of the Community are published in its Official Journal (O.J.), which secures their legal validity on the internal as well as on the external level.
3. INSTITUTIONS
The achievement of the tasks given by the treaty to the Community is assured by the latter's institutions, which comprise:
- An Assembly: the European Parliament, whose members since June 1979 are elected by direct universal elections.- A Council: made up of representatives of the governments of member States.
- A Commission: consisting of members nominated by the governments of member States but independent of these in the exercise of their functions.
- A Court of Justice: consisting of judges nominated by the governments of member States, whose task it is to ensure the respect of law in the interpretation and implementation of the treaty.
In exercising the powers attributed to them, the institutions of the European Community act by virtue of a transfer of competence agreed to by its member States in the framework of the treaty of Rome, and they have competence to take, in various forms (regulations, directives, decisions) actions which are binding on member States. In the case in particular of regulations, these are directly applicable in the respective legal orders of member States without any intervention on the part of member States.
3.1 Treaty making power
In different fields, the Community has power to negotiate and conclude bilateral or multilateral agreements with third countries or international organizations.
The Community has the competence, exclusive of its member States, to negotiate and conclude agreements with third States in domains where the Community has, on the internal plane, adopted uniform rules for the application of its common policies.
4. COMMUNITY COMPETENCE ON FISHERIES MATTERS
4.1 Conservation and utilization of marine living resources
Community control over fisheries is derived from explicit mention in the Treaty itself 2/, as enacted by the Council of Ministers through regulations in 1970 3/. They were consolidated in 1976 4/, with derogations provided for by the Treaty of Accession in respect of Denmark, Ireland and the United Kingdom. Regulation 2141/70/EEC, established a common structural policy for the fishing industry and in particular aimed to ensure equal access to the fishing grounds of each member State "coming under its sovereignty or within its jurisdiction". 5/
2
/ Article 38 - para. 1, and Articles 39-46, read in conjunction with Annex II which brings fisheries within the overall common agricultural policy
3/ O.J. 1970 L 236/1 and 5 - Council Regulations 2141 and 2142/70/EEC
4/ O.J. 1976 L 20/1 and 19 - Council Regulations 100 and 101/76/EEC
5/ Article 2 of Regulation 2141/70 and restated in Article 2 of Regulation 101/76
By a resolution adopted on 5 November 1976, the Council of the European Communities agreed that the member States, by a concerted action, would extend, from 1 January 1977, the limits of their fishing zones to 200 miles from their coasts bordering on the North Sea and the North Atlantic.
The Court of Justice of the European Communities relying on the pertinent provisions of the Treaty (Article 38 et seq.), on the provisions of the Act concerning the conditions of accession to the Community of Denmark, Ireland and the United Kingdom (Article 102) and on the basic regulations adopted by the Community concerning fishing (Regulation Nos. 100 and 101/76 of 19 January 1976), recognized that the Community was competent to take conservation measures for the biological resources in all areas of the sea in an autonomous manner as well as by contractual undertakings with third countries or within the framework of international organizations, and it made it clear that this competence, once exercised, was exclusive of all diverging provisions of the member States. 6/
6
/ Court rulings of 14.7.1976, Cases 3, 4 and 6/76, European Court Record (E/C/R/) 1976, p.1279, and case 61/77, E/C/R/ 1978, p.413
A Common Fisheries Policy (CFP) has been established by the regulations and other decisions made by the Council on 25 January 1983.
In order to ensure the protection of fishing grounds, the conservation of the biological resources of the sea and their balanced exploitation on a lasting basis and in appropriate economic and social conditions, a Community system for the conservation and management of fishery resources has been established by Regulation 170/83. 7/
(a) The access regime to the coastal band of 12 miles, applicable until 31 December 1992 and renewable for a further period of 10 years, is based on the maintenance of the derogation regime defined in Article 100 of the 1972 Act of Accession and on the generalization up to 12 miles of the limit of six miles laid down in that Article. It also specifies for each member State the nature and the importance of the rights which they may enjoy in the coastal waters of the other member States. Furthermore, the access regime contains provisions for the establishment of a sensitive area around the Shetland Islands.(b) In accordance with Article 2 of Regulation 170/83 conservation measures have to be formulated in the lights of the available scientific advice, and in particular of the report prepared by the Scientific and Technical Committee for Fisheries.
Such conservation measures include technical measures and the limitations of catches by establishing a total allowable catch (TAC) for each stock, shares available to the Community, taking into account arrangements with third countries, and the distribution of these Community shares between the member States (quotas) in a manner which assures each member State relative stability of fishing activities.
Member States are authorized to determine, in accordance with the applicable Community provisions, detailed rules for the utilization of the quotas allocated to them.
(c) Technical measures for the conservation of fishery resources in Community waters, except the Baltic Sea and the Mediterranean Sea, specifying inter alia the mesh, size by-catch rates and fish size permitted as well as the limitation of fishing within certain areas and periods and with certain gear are laid down in Regulation No. 171/83. 8/ Additional national measures of a strictly local character may be maintained or taken subject to examination by the Commission of their compatibility with Community law and conformity with the common fisheries policy.
(d) In conformity with Article 10 of Regulation 170/83, Regulation 2057/82, which became applicable on 1 January 1983, lays down rules for the control of catches in order to ensure that the quotas fixed are observed. The inspection is basically carried out by member States' authorities. However, the Commission of the European Communities may verify on the spot the implementation of this Regulation.
7/ O.J. 1983 L 24/1
8/ O.J. 1983 L 24/14
4.2 Relations with third countries
(a) Bilateral fisheries relations
In its Resolution of 3 November 1976, the Council of the European Communities also decided that, from 1 January 1977, the exploitation by fishing boats from third countries of resources located in the fishing zones of the member States extended to 200 miles would be regulated by agreements between the Community and interested third countries and that the acquisition of rights for Community fishermen in the waters of third countries, as well as the maintenance of existing rights, would be ensured by such agreements.
In conformity with these decisions, fisheries agreements have been concluded with third countries on the basis of the following principles;
(a) The allocation of surpluses (Article 62 of the Draft Law of the Sea Convention): By the agreement concluded on 3 June 1977, the USA allowed access for Community vessels to harvest an allocation of that portion of the total allowable catch (TAC) for a specific fishery that will not be harvested by United States fishing vessels.(b) Reciprocity: The agreements concluded with Norway, Sweden, Faroe Islands and Spain are based on the principle of reciprocal access to resources. Recently some third countries have developed a new approach which is not derived from the agreed text of the Law of the Sea Convention, and which is aiming at agreements involving import concessions in return for fishing rights. This approach may create difficulties for international trade. The Community had to accept an agreement with Canada based on this principle of access to resources/access to markets.
(c) Financial contributions: The agreements Concluded with Senegal, Guinea-Bissau and Guinea provide the obligation that in return for the fishing opportunities accorded under these agreements the Community shall pay compensation.
At present, access by vessels from third countries (Norway, Sweden, Faroe Islands and Spain) to Community waters is only granted on the basis of reciprocal access by vessels from member States of the Community to the third country's waters concerned. No fees, even not administrative fees, are charged for access to Community waters.
The licensing arrangements with those third countries are fixed directly in the framework of the yearly quota consultations.
These arrangements fix the provisions concerning:
- The number of licences for each quota or group of quotas on the basis of statistical and technical aspects (types of vessels, average daily catch rates)- The application procedure
- The obligations of the captains of the vessels (catch-reports, logbook requirements)
- Penalty clauses (withdrawal or refusal of licences)
The licences arrangements thus agreed are afterwards laid down in the regulation adopted by the Council of Ministers, authorizing fishing by third country vessels in Community waters. Simultaneously, with the issuing of licences by the Commission of the European Communities, the control authorities of the member States are informed for inspection reasons.
The allocation between the member States of quotas obtained by the Community in waters of third countries forms part of the overall quota allocation and reflects both traditional fisheries and actual experience in the fisheries in the waters concerned.
Compliance with Community regulations. Fishing by vessels from third countries in Community waters is authorized by a Regulation adopted by the Council. In the Community's legal system, a regulation is directly binding in each member State. This implies that a Community regulation has the same legal effects as a national law adopted by a member State. The authorities responsible in a member State for the enforcement of laws, including fisheries inspection services and the Courts, are therefore bound to enforce a Community regulation in the same manner as national law.
(b) Multilateral fisheries relations
In the above mentioned Council Resolution of 3 November 1976 the Council also decided that the Community should replace its member States as party to international fisheries conventions. In accordance with this decision the Community has become a Contracting Party to certain international conventions regulating fisheries on the high seas and has undertaken negotiations or conducted exploratory conservations with a view to acceding to several other such conventions. The Community is a Contracting Party to the conventions establishing the North-West Atlantic Fisheries Organization (NAFO), the North-East Atlantic Fisheries Commission (NEAFC), the Convention for the Conservation of Antarctic Marine Living Resources and the Convention for the conservation of salmon in the North Atlantic Ocean. The Community is also on the point of becoming a Contracting Party to the Baltic Convention, ICCAT and ICSEAF.
In its capacity as a member of NAFO the Community has adopted Regulations submitting Community vessels fishing in areas which do not fall under the jurisdiction of any coastal State to conservation measures including a scheme of international enforcement.
