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Research for PECH Committee – Common Fisheries Policy and Brexit

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Research for PECH Committee – Common Fisheries Policy and Brexit DIRECTORATE-GENERAL FOR INTERNAL POLICIES Policy Department for Structural and Cohesion Policies FISHERIES Research for PECH Committee - Common Fisheries Policy and BREXIT WORKSHOP This document was requested by the European Parliament's Committee on Fisheries. RESPONSIBLE FOR THE POLICY DEPARTMENT Research managers: Carmen-Paz Marti, Priit Ojamaa Project and publication assistance: Virginija Kelmelytė, Adrien Borka, Jeanette Bell Policy Department for Structural and Cohesion Policies European Parliament B-1047 Brussels E-mail: [email protected] LINGUISTIC VERSIONS Original: EN Translations: DE ES FR ABOUT THE PUBLISHER To contact the Policy Department or to subscribe to its monthly newsletter please write to: [email protected] Manuscript completed in June 2017. © European Union, 2017. Print ISBN 978-92-846-0758-7 doi: 10.2861/670902 QA-01-17-230-EN-C PDF ISBN 978-92-846-0757-0 doi: 10.2861/621765 QA-01-17-230-EN-N This document is available on the internet at: http://www.europarl.europa.eu/RegData/etudes/STUD/2017/585912/IPOL_STU(2017)58591 2_EN.pdf DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. DIRECTORATE-GENERAL FOR INTERNAL POLICIES POLICY DEPARTMENT B: STRUCTURAL AND COHESION POLICIES FISHERIES Research for PECH Committee - Common Fisheries Policy and BREXIT WORKSHOP Abstract This is the reference document of the Workshop on “Common Fisheries Policy and BREXIT” of 21th June 2017, organised by the Committee on Fisheries (COMPECH) and the Policy Department B (PECH Research) of the European Parliament. It is structured in three parts: 1. Legal framework for governance 2. Trade and economic related issues 3. Resources and fisheries June 2017 PE 601.981 EN Common Fisheries Policy and BREXIT Table of Contents Common Fisheries Policy and BREXIT - Legal framework for governance 5 Common Fisheries Policy and BREXIT - Trade and economic related issues 45 Common Fisheries Policy and BREXIT Resources and Fisheries: a Case Study 105 3 Policy Department for Structural and Cohesion Policies 4 DIRECTORATE-GENERAL FOR INTERNAL POLICIES Policy Department for Structural and Cohesion Policies FISHERIES Research for PECH Committee - Common Fisheries Policy and BREXIT - Legal framework for governance STUDY Abstract This study identifies and describes the main aspects of the CFP, both internal and external, that could potentially be legally affected by Brexit. It assesses the legal framework for governance between the EU and the UK and analyses, in broad terms, previous exits from the EU and the Preferential Agreements between the EU and third countries covering fisheries matters. It also examines possible future EU-UK agreements on fisheries issues. IP/B/PECH/IC/2017-032 May 2017 PE 585.912 EN This document was requested by the European Parliament's Committee on Fisheries. AUTHOR UNIVERSITY OF A CORUÑA (SPAIN): José Manuel SOBRINO HEREDIA, Professor of Public International Law ABOUT THE PUBLISHER To contact the Policy Department or to subscribe to updates on our work for the PECH Committee please write to: [email protected] Manuscript completed in May 2017 © European Union, 2017 Please use the following reference to cite this study: Sobrino Heredia, J M, 2017, Research for PECH Committee – Common Fisheries Policy and BREXIT - Legal framework for governance, European Parliament, Policy Department for Structural and Cohesion Policies, Brussels Please use the following reference for in-text citations: Sobrino Heredia (2017) DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorized, provided the source is acknowledged and the publisher is given prior notice and sent a copy. 6 Common Fisheries Policy and BREXIT - Legal framework for governance Contents LIST OF ABBREVIATIONS 9 EXECUTIVE SUMMARY 11 GENERAL INFORMATION 13 1. LEGAL IMPACT ON THE INTERNAL/EXTERNAL FISHERIES POLICY 15 1.1 Access to fishing grounds in UK and EU waters and relative stability 15 1.2 EU investments in fisheries in the UK 19 1.3 Free movement of fishermen 21 1.4 Sustainable fisheries partnership agreements with third countries, in particular neighbouring northern countries 23 1.5 Participation in regional and international fisheries bodies and organisms with competence in fisheries 27 1.6 The role of the Court of Justice of the European Union in the solution of future conflicts 28 2. LEGAL FRAMEWORK FOR GOVERNANCE BETWEEN THE EU-27 AND THE UK 31 2.1 Legal procedure for Brexit and previous exits from the EU: the specific case of fisheries 31 2.2 Preferential agreements between the EU and third countries including fisheries matters 33 2.3 Future EU-UK agreements for the governance of fisheries issues 38 CONCLUSIONS 41 REFERENCES 44 7 Policy Department for Structural and Cohesion Policies 8 Common Fisheries Policy and BREXIT - Legal framework for governance LIST OF ABBREVIATIONS CCAMLR Commission for the Conservation of Antartic Marine Living Resources CETA EU-Canada Comprehensive Economic and Trade Agreement CFP Common Fisheries Policy CJEU Court of Justice of the European Union EEA European Economic Area EEC European Economic Community EC European Community EFTA European Free Trade Association EU European Union EEZ Exclusive Economic Zone FAO Food and Agriculture Organisation of the United Nations ICJ International Court of Justice IUU Illegal, Unreported, Unregulated NAFO Northwest Atlantic Fisheries Organization NEAFC North East Atlantic Fisheries Commission RFMO Regional Fisheries Management Organisation TAC Total Allowable Catch TEU Treaty on European Union TFEU Treaty on the Functioning of the European Union UNCLOS United Nations Convention on the Law of the Sea UK United Kingdom UNFSA 1995 Fish Stocks Agreement 9 Policy Department for Structural and Cohesion Policies 10 Common Fisheries Policy and BREXIT - Legal framework for governance EXECUTIVE SUMMARY Background The notification by the British government, on 29 March 2017, of its decision to withdraw from the EU was the first step in a process that will lead to the UK’s disengagement from EU law, the internal market and other European policies, including the Common Fisheries Policy. The EU and the UK will thereupon have to negotiate and choose a legal formula to enable subsequent cooperation between them. In these bilateral negotiations with the UK, now as a third country, what place will fisheries hold? In the author’s view, although they will not be a central issue in and of themselves, they will be strongly conditioned by the terms of any agreements on other core issues such as the internal market or fundamental freedoms. For that is where the fate of British fishery products’ access to the EU market (and vice versa), the free movement of seafarers, and the freedom to set up fishery businesses in the UK will be decided. A separate matter is that of access to fisheries resources in British or EU waters, which will need to be dealt with specifically, probably through an ad hoc fisheries agreement between the EU and the UK. The fact that these issues will be negotiated in separate legal frameworks should not lead to the fragmentation of fisheries issues, which should be addressed in their entirety and together, so as to ensure that the free movement of fishery products is linked to free access to waters and resources and vice versa. In the meantime, until the UK’s exit from the Union is legally complete, European law will continue to apply in that country. Therefore, the rules comprising the CFP will remain in force. This interim situation generates uncertainty with regard to the EU fisheries legislation to be drafted and implemented during this period and beyond. Aim Following its effective withdrawal from the Union, the UK will become a third country for the purposes of the CFP. What consequences will that have? How will it affect the legal framework for fisheries governance? The present study aims to examine these questions. To this end, the first chapter identifies and analyses different internal and external areas of the CFP that might be legally impacted by the UK’s withdrawal from the Union. In particular, it examines: access to fishing grounds in UK and EU waters and relative stability (the obligation to negotiate as provided for under international law, taking historical catches into account); EU investments in fisheries in the UK (‘substantive legitimate expectation’); the free movement of fishermen (‘vested or acquired rights’); fisheries agreements (outstanding financial commitments); participation in regional and international fisheries bodies and organisms with competence in fisheries (loss by the UK of its Member State status and possible new partnerships); the role of the CJEU in the solution of future conflicts (pending cases, the UK’s rejection of the CJEU’s jurisdiction, the nature of the conflicts, the Court’s residual role, and the search for other settlement mechanisms). 11 Policy Department for Structural and Cohesion Policies The second chapter of this study analyses the legal framework for governance between the EU and the UK in the area of fisheries with a view to answering the question: how will the future relations with the UK – now a third country – be channelled and to what extent will it affect fisheries? To this end: first, it offers an overview of the few precedents of withdrawal in the history of the EU and the role played by fisheries in them; it then offers a non-exhaustive overview of some of the preferential agreements between the EU and third countries covering fisheries issues; finally, it addresses the question of future EU-UK agreements for the governance of fisheries issues.
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