So Long, As Well As Cheers For All The Fish: The Cjeu Clarifies International Constabulary As Well As Institutional Issues Applying To Fisheries

 

Steve Peers

The EU’s fisheries policy is controversial both inside the European Union in addition to exterior it, due to its behavior upon on both fish stocks in addition to the livelihoods of line-fishing communities. Until the Treaty of Lisbon, its application was essentially the sole save of the Council. The European Parliament (EP) tried to obtain articulation command of approximately of the external aspects of the policy past times claiming that its consent was needed for international fisheries treaties that impacted the European Union budget significantly, but the CJEU rejected this challenge.

Following the Treaty of Lisbon, however, the EP has articulation decision-making ability internally over agriculture in addition to fisheries policies, since Article 43(2) TFEU states that the ordinary legislative physical care for straightaway applies to the adoption of legislation inward this field. However, sure enough aspects are soundless reserved to the Council, amongst the European Parliament solely consulted, namely ‘measures on fixing prices, levies, help in addition to quantitative limitations in addition to on the fixing in addition to allotment of line-fishing opportunities’ (Article 43(3)).

As regards fishing, this provision is used each twelvemonth simply earlier Christmas, to make upwards one's take away heed the annual allotment of fish betwixt Member States. It’s rubber to say that the note of these commonly bitter negotiations never induces fisheries ministers to kiss each other nether the mistletoe.  

What just is the dividing business betwixt the areas where the EP shares ability amongst the Council, in addition to where fisheries ministers are left to handgrip acrimonious discussions amid themselves? There are pending cases on the dividing business every bit regards internal European Union measures. But today the CJEU ruled on the segmentation of powers externally, inward a representative which likewise raised interesting issues of international law.

The judgment

Today’s judgment concerned a Council Decision which awarded Venezuelan fishermen the possibility to fish inward the waters of French Guiana (which is a factor business office of French territory). This confirmed what those fishermen had been doing for approximately fourth dimension before. The European Union had felt it was necessary to seat this exercise on a to a greater extent than formal footing, but the rather left-wing Venezuelan regime did non desire to sign a treaty amongst such dastardly agents of global capitalism.

So the European Union adopted an manifestly unilateral Decision on this issue. The Council believed that it barbarous inside the compass of Article 43(3), hence the EP solely had to survive consulted, piece the EP in addition to the Commission argued that it barbarous inside the compass of Article 43(2), hence that the EP had the ability of consent. The rules on the EP’s job inward the approving of international treaties to which the European Union becomes a political party are laid out inward Article 218 TFEU. Basically the EP has the ability of consent whenever a treaty concerns an result regulated past times the ordinary legislative physical care for (ie fisheries constabulary generally), but is solely consulted when a treaty falls inside the compass of other decision-making rules internally (ie the non-legislative physical care for that applies when the European Union fixes in addition to allocates line-fishing opportunities). (In fact, the rules on the EP’s job inward approving international treaties are slightly to a greater extent than complicated, but solely this basic distinction is relevant to today’s judgment).

But was the Council Decision an international understanding inward the root place? The Advocate-General’s opinion argued that it was not. Rather, it was a unilaterally binding declaration, an interesting cast of international law. In fact such legal creatures are hence rare that international constabulary had non yet clarified whether international organisations similar the European Union could adopt them. In the Advocate-General’s view, they could. But that left the awkward enquiry of how just the European Union could adopt 1 every bit a affair of its internal law, since Article 218 clearly solely refers to agreements concluded past times the European Union (or on behalf of the European Union past times its Member States). She considered diverse options, but ultimately argued that the relevant provisions of Article 218, including the powers of the EP to give its consent in addition to have data on negotiations, every bit good every bit the special jurisdiction of the CJEU, applied past times analogy.

In the Court’s view, however, the Decision did found an international agreement. It based itself on the relevant rules of the United Nations Convention on the constabulary of the sea, to which the European Union in addition to its Member States (but non Venezuela) are parties, in addition to confirmed its seat inward the recent ruling on the Hague Convention on shaver abduction (discussed here), that treaties could survive concluded inward 2 steps. In this case, the European Union had extended an offer, which Venezuela was complimentary to accept, decline or advise changes to. It had chosen to accept.  

As for the internal segmentation of powers, both the Advocate-General in addition to the Court reached the same conclusion: the Parliament’s statement was correct. In the Court’s view, the master copy powers relating to agriculture in addition to fisheries laid out inward Article 43(2) concerned ‘policy decision[s] that must survive reserved to the European Union legislature’. In contrast, Article 43(3) provided for ‘measures of a primarily technical nature’ to implement the legislation adopted inward the field. Applying that distinction to this case, the ‘treaty’ amongst Venezuela laid out solely a full general framework, which had hence been implemented past times farther measures based on Article 43(3). So that ‘treaty’ could non itself survive based on Article 43(3); rather it was bailiwick to the consent of the European Parliament, every bit it was based on Article 43(2).

Comments

On the international constabulary issue, the Advocate-General’s analysis is to a greater extent than convincing than the Court’s, given the clear unwillingness of Venezuela to engage inward whatever formal negotiations along its failure to ratify the United Nations Convention on the constabulary of the sea, which the CJEU relied on hence heavily. Nor is the Court’s job of the linguistic communication of contract constabulary real convincing. True, Venezuela’s application for fisheries authorisations mightiness survive described every bit the credence of an offer, but what is the consideration? Why should Venezuela’s actions survive characterised inward calorie-free of a treaty it had non ratified? Possibly the relevant rules reverberate customary international constabulary on the constabulary of the body of body of water which apply to Venezuela, but the Court does non brand that argument.

Nor is its analysis of the text of the Law of the Sea Convention real convincing. The relevant clause refers to making ‘agreements or other arrangements’ regarding surplus fish. Could non a unilateral binding announcement found a cast of ‘other arrangement’? Possibly that interpretation has been rejected past times the Law of the Sea judicature or past times experts inward that champaign of constabulary (I confess that I’m non one), inward accordance amongst the sources of international constabulary every bit defined inward the United Nations Charter. But if that is the case, the Court needs to bolster its interpretation past times citing such evidence.

The distinction betwixt the forms of international obligation matters mainly every bit regards the EU’s internal law. If the Decision was a unilateral binding declaration, the CJEU would guide maintain the awkward project of deciding whether the European Union tin adopt such measures, in addition to if hence how. Since the Court didn’t guide maintain to address these issues today, they must survive considered open. But if it is every necessary to consider them inward future, at that topographic point is much to recommend the Advocate-General’s real thorough analysis of both of these points.

As for the internal decision-making rules, the judgment is to a greater extent than convincing, peculiarly inward calorie-free of the Advocate-General’s arguments that Article 43(3) cannot apply to everything concerning line-fishing opportunities, since that would homecoming the master copy legislative powers laid out inward Article 43(2) superfluous.

The broader implications of this judgment stay to survive seen. But it’s an early indication that the Court is inclined to contention inward favour of a wide interpretation of the compass of the EP’s legislative in addition to treaty approving powers over agriculture in addition to fisheries next the entry into forcefulness of the Treaty of Lisbon.

 

Barnard & Peers: chapter 5

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