How to improve the link between the Common Fisheries Policy and the Nature Restoration Law proposal?
Résumé
This note explores how greater coherence between the Common Fisheries Policy (CFP) and the
Nature Restoration Law (NRL) proposal can be achieved. It first addresses the issue of the legal
basis. We conclude that the NRL has a mainly environmental purpose and that even though
fisheries are mentioned, they only constitute an incidental purpose. Therefore the legal basis
of the NRL is the sole article 192 TFEU. This note goes on to explore links between the CFP and
the environmental legislation. It shows that despite substantial integration of environmental
concerns into the CFP, links between legislations remain difficult. Indeed, the principle of equal
access to EU waters limits the ability of Member States to adopt environmental measures
restricting fishing activity in the waters under their sovereignty or jurisdiction, hence the need
for a specific procedure to ensure coherence between these legislations. In the CFP Regulation,
this is established by article 11 and based on regional cooperation. It provides for the adoption
by all interested Member States of a joint recommendation and empowers the Commission to
adopt the measures through a delegated act. But the procedure remains underused. Accordingly,
while the EU is in the process of adopting a new environmental legislation, the NRL, this note
explores how this procedure can be improved to ensure greater coherence between the NRL
and the CFP. It concludes that two main elements can be strengthened. An additional article
dedicated to this link should be added to the NRL. The most suitable option appears to be to
allow the initiating Member State to submit a recommendation even without the unanimous
agreement of the other Member States having a direct management interest. In this case, the
provision has to make clear which part of the initial art. 11 CFP procedure applies and the
specific NRL elements to be included in the procedure. In addition, in order to avoid perverse
effects, the NRL could indicate that the Commission will give particular attention to mitigating
any negative effects of displacing the fishing activity to other sensitive areas. Governance issues
also need to be addressed. Greater involvement of scientific bodies and stakeholders would
appear to be key to avoiding deadlocks in the process. Finally, it is crucial to strike a better
balance of the environmental obligations placed on interested Member States for discussing
joint recommendations. Explicitly introducing flag State obligations and reporting on them could
be a useful course of action
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