Steve Peers
The EU’s fisheries policy is
controversial both within the EU and outside it, due to its impact on both fish
stocks and the livelihoods of fishing communities. Until the Treaty of Lisbon,
its application was essentially the sole preserve of the Council. The European
Parliament (EP) tried to obtain joint control of some of the external aspects
of the policy by claiming that its consent was needed for international
fisheries treaties that impacted the EU budget significantly, but the CJEU rejected
this challenge.
Following the Treaty of Lisbon,
however, the EP has joint decision-making power internally over agriculture and
fisheries policies, since Article 43(2) TFEU states that the ordinary
legislative procedure now applies to the adoption of legislation in this field.
However, certain aspects are still reserved to the Council, with the European
Parliament only consulted, namely ‘measures on fixing prices, levies, aid and
quantitative limitations and on the fixing and allocation of fishing
opportunities’ (Article 43(3)).
As regards fishing, this
provision is used each year just before Christmas, to determine the annual allocation
of fish between Member States. It’s safe to say that the tone of these usually
bitter negotiations never induces fisheries ministers to kiss each other under
the mistletoe.
What exactly is the dividing line
between the areas where the EP shares power with the Council, and where
fisheries ministers are left to hold acrimonious discussions among themselves?
There are pending cases on the dividing line as regards internal EU
measures. But today the CJEU ruled on the division of powers externally,
in a case which also raised interesting issues of international law.
The judgment
Today’s judgment concerned a
Council Decision which awarded Venezuelan fishermen the possibility to fish in
the waters of French Guiana (which is a constituent part of French territory).
This confirmed what those fishermen had been doing for some time before. The EU
had felt it was necessary to put this practice on a more formal footing, but
the rather left-wing Venezuelan government did not want to sign a treaty with
such dastardly agents of global capitalism.
So the EU adopted an apparently
unilateral Decision on this issue. The Council believed that it fell within the
scope of Article 43(3), so the EP only had to be consulted, while the EP and
the Commission argued that it fell within the scope of Article 43(2), so that
the EP had the power of consent. The rules on the EP’s role in the approval of
international treaties to which the EU becomes a party are set out in Article 218
TFEU. Basically the EP has the power of consent whenever a treaty concerns an
issue regulated by the ordinary legislative procedure (ie fisheries law
generally), but is only consulted when a treaty falls within the scope of other
decision-making rules internally (ie the non-legislative procedure that applies
when the EU fixes and allocates fishing opportunities). (In fact, the rules on
the EP’s role in approving international treaties are slightly more
complicated, but only this basic distinction is relevant to today’s judgment).
But was the Council Decision an international
agreement in the first place? The Advocate-General’s opinion argued that it was
not. Rather, it was a unilaterally binding declaration, an interesting form of international
law. In fact such legal creatures are so rare that international law had not
yet clarified whether international organisations like the EU could adopt them.
In the Advocate-General’s view, they could. But that left the awkward question
of how exactly the EU could adopt one as a matter of its internal law, since Article
218 clearly only refers to agreements
concluded by the EU (or on behalf of the EU by its Member States). She
considered various options, but ultimately argued that the relevant provisions
of Article 218, including the powers of the EP to give its consent and receive
information on negotiations, as well as the special jurisdiction of the CJEU,
applied by analogy.
In the Court’s view, however, the
Decision did constitute an international agreement. It based itself on the relevant
rules of the UN Convention on the law of the sea, to which the EU and its
Member States (but not Venezuela) are parties, and confirmed its position in
the recent ruling on the Hague Convention on child abduction (discussed here), that treaties
could be concluded in two steps. In this case, the EU had extended an offer,
which Venezuela was free to accept, reject or suggest changes to. It had chosen
to accept.
As for the internal division of
powers, both the Advocate-General and the Court reached the same conclusion:
the Parliament’s argument was correct. In the Court’s view, the main powers
relating to agriculture and fisheries set out in Article 43(2) concerned ‘policy
decision[s] that must be reserved to the EU legislature’. In contrast, Article 43(3)
provided for ‘measures of a primarily technical nature’ to implement the
legislation adopted in the field. Applying that distinction to this case, the ‘treaty’
with Venezuela set out only a general framework, which had then been
implemented by further measures based on Article 43(3). So that ‘treaty’ could
not itself be based on Article 43(3); rather it was subject to the consent of
the European Parliament, as it was based on Article 43(2).
Comments
On the international law issue, the
Advocate-General’s analysis is more convincing than the Court’s, given the
clear unwillingness of Venezuela to engage in any formal negotiations along its
failure to ratify the UN Convention on the law of the sea, which the CJEU
relied on so heavily. Nor is the Court’s use of the language of contract law
very convincing. True, Venezuela’s application for fisheries authorisations
might be described as the acceptance of an offer, but what is the
consideration? Why should Venezuela’s actions be characterised in light of a
treaty it had not ratified? Possibly the relevant rules reflect customary
international law on the law of the sea which apply to Venezuela, but the Court
does not make that argument.
Nor is its analysis of the text
of the Law of the Sea Convention very convincing. The relevant clause refers to
making ‘agreements or other arrangements’ regarding surplus fish. Could not a
unilateral binding declaration constitute a form of ‘other arrangement’? Possibly
that interpretation has been rejected by the Law of the Sea tribunal or by experts
in that field of law (I confess that I’m not one), in accordance with the
sources of international law as defined in the UN Charter. But if that is the
case, the Court needs to bolster its interpretation by citing such evidence.
The distinction between the forms
of international obligation matters mainly as regards the EU’s internal law. If
the Decision was a unilateral binding declaration, the CJEU would have the
awkward job of deciding whether the EU can adopt such measures, and if so how.
Since the Court didn’t have to address these issues today, they must be
considered open. But if it is every necessary to consider them in future, there
is much to recommend the Advocate-General’s very thorough analysis of both of
these points.
As for the internal decision-making
rules, the judgment is more convincing, particularly in light of the Advocate-General’s
arguments that Article 43(3) cannot apply to everything concerning fishing
opportunities, since that would render the main legislative powers set out in Article
43(2) superfluous.
The broader implications of this
judgment remain to be seen. But it’s an early indication that the Court is
inclined to tilt in favour of a broad interpretation of the scope of the EP’s
legislative and treaty approval powers over agriculture and fisheries following
the entry into force of the Treaty of Lisbon.
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