Steve Peers
The EU’s fisheries policy generates disagreement both within and outside the EU because of its effects on fish populations and the economic well-being of fishing communities. Prior to the Treaty of Lisbon, its implementation was essentially under the sole authority of the Council. Although the European Parliament (EP) attempted to gain shared control over some of the policy’s external aspects by asserting its consent was required for international fisheries agreements that significantly impacted the EU budget, the Court of Justice of the European Union (CJEU) dismissed this claim.
However, after the Treaty of Lisbon, the EP gained joint decision-making power internally concerning agriculture and fisheries policies, as Article 43(2) of the Treaty on the Functioning of the European Union (TFEU) mandates that the ordinary legislative procedure now applies to adopting legislation in this domain. Nevertheless, certain matters remain under the Council’s purview, with the EP only being consulted, specifically ‘measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities’ (Article 43(3)).
In the context of fishing, this provision is invoked annually just before Christmas to establish the yearly allocation of fish among Member States. It’s fair to say that the tenor of these often contentious negotiations doesn’t usually inspire fisheries ministers to embrace the holiday spirit of goodwill.
What precisely distinguishes the areas where the EP shares authority with the Council from those where fisheries ministers are left to engage in heated debates amongst themselves? Currently, ongoing legal cases are examining this boundary concerning internal EU measures. However, the CJEU recently issued a ruling on the division of powers externally in a case that also raised compelling points about international law.
The Judgment
The recent judgment pertained to a Council Decision granting Venezuelan fishermen permission to fish in the waters of French Guiana (an integral part of French territory). This formalized a practice these fishermen had been engaged in for a period. While the EU felt it was necessary to formalize this practice, the left-leaning Venezuelan government was reluctant to enter into a treaty with entities it perceived as agents of global capitalism.
Consequently, the EU adopted a seemingly unilateral Decision on this matter. The Council maintained that this fell under the scope of Article 43(3), necessitating only consultation with the EP. Conversely, the EP and the Commission contended it fell within Article 43(2), requiring the EP’s consent. The rules governing the EP’s role in approving international agreements to which the EU becomes a party are outlined in Article 218 TFEU. Essentially, the EP holds the power of consent when a treaty pertains to an issue regulated by the ordinary legislative procedure (such as general fisheries law). However, it is only consulted when a treaty falls under other internal decision-making rules (like the non-legislative procedure employed when the EU sets and distributes fishing opportunities). (While the rules governing the EP’s involvement in ratifying international treaties are more intricate, this basic distinction is pertinent to the recent judgment).
However, was the Council Decision even an international agreement in the first place? The Advocate-General’s opinion posited that it was not, but rather a unilaterally binding declaration, an uncommon instrument in international law. Such legal entities are so infrequent that international law hasn’t yet definitively determined whether international organizations like the EU can adopt them. The Advocate-General believed they could. Yet, this presented the challenging question of how the EU could adopt one under its internal law, as Article 218 explicitly refers only to agreements concluded by the EU (or by its Member States on its behalf). After exploring various possibilities, the Advocate-General argued that the relevant provisions of Article 218, including the EP’s authority to grant consent and receive information on negotiations, as well as the CJEU’s special jurisdiction, applied by analogy.
However, the Court determined that the Decision did constitute an international agreement. It based its decision on the pertinent rules of the UN Convention on the Law of the Sea, to which the EU and its Member States (but not Venezuela) are parties. It reaffirmed its stance from the recent ruling on the Hague Convention on child abduction, stating that treaties could be established in two stages. In this instance, the EU extended an offer that Venezuela was free to accept, reject, or propose modifications to, and Venezuela chose to accept.
Regarding the internal division of powers, both the Advocate-General and the Court reached the same conclusion: the Parliament’s argument was valid. The Court held that the primary powers concerning agriculture and fisheries laid out in Article 43(2) involved “policy decision[s] that must be reserved to the EU legislature.” Conversely, Article 43(3) stipulated “measures of a primarily technical nature” to execute legislation enacted in this area. Applying this distinction, the “treaty” with Venezuela established a general framework later implemented by further measures based on Article 43(3). Therefore, the “treaty” itself couldn’t be founded on Article 43(3); it required the European Parliament’s consent, as it was based on Article 43(2).
Comments
Concerning the international law aspect, the Advocate-General’s analysis appears more persuasive than the Court’s, considering Venezuela’s apparent reluctance to engage in any formal negotiations and its failure to ratify the UN Convention on the Law of the Sea, a document central to the CJEU’s reasoning. The Court’s reliance on contract law terminology is also not entirely convincing. While Venezuela’s application for fishing authorizations could be interpreted as accepting an offer, the consideration remains unclear. Why should Venezuela’s actions be viewed through the lens of a treaty it hasn’t ratified? Perhaps the pertinent rules reflect customary international law on the law of the sea that applies to Venezuela, but the Court does not present this argument.
Furthermore, the Court’s analysis of the Law of the Sea Convention’s text is not entirely persuasive. The relevant clause refers to establishing “agreements or other arrangements” concerning surplus fish. Could a unilaterally binding declaration not qualify as another form of “arrangement”? It’s possible that this interpretation has been dismissed by the Law of the Sea tribunal or experts in that field of law (an area I admittedly am not an expert in), aligning with the sources of international law as defined in the UN Charter. However, if this is the case, the Court needs to substantiate its interpretation by citing such evidence.
This distinction between forms of international obligation is primarily significant regarding EU internal law. If the Decision were a unilaterally binding declaration, the CJEU would face the complex task of determining whether the EU can adopt such measures and, if so, how. As the Court did not need to address these questions in this case, they remain open for consideration. However, if these issues require examination in the future, the Advocate-General’s thorough analysis of both points is highly commendable.
Regarding the internal decision-making rules, the judgment is more compelling, especially considering the Advocate-General’s arguments that Article 43(3) cannot encompass every aspect of fishing opportunities, as this would render the primary legislative powers outlined in Article 43(2) redundant.
The broader ramifications of this judgment remain to be observed. However, it suggests that the Court may favor a broad interpretation of the EP’s legislative and treaty approval powers concerning agriculture and fisheries following the Treaty of Lisbon’s implementation.
Barnard & Peers: chapter 5