Published in Fishing News this week is the response of outgoing fisheries commissioner Franz Fischler to Conservative claims that we can leave the CFP without leaving the EU. His view of the legal position is as follows:
As Community law currently stands (Article 3(1)(e) of the EC Treaty) the Community’s activities include a common fisheries policy whereby it holds exclusive authority on matters of fisheries resource conservation in both inland waters and at sea.
That, of course, is the "legal" position. However, if the UK did "depart from its obligation to apply the common rules", what is the EU going to do about it – invade us? For sure, the commission or member states could refer the UK to the ECJ and, as a result, fines could be levied. But if Britain refuses to pay, and subtracts any money taken by the commission from its own contribution, what then would the EU do?
This exclusive authority as regards organisation of the sector and conservation of marine biological resources arises from Article 37 of the EC Treaty and Article 102 of the 1972 Act of Accession.
The Court of Justice has determined the range of the Community’s authority, confirming that it has replaced that of the member states in both Community waters and beyond these.
The Community’s exclusive authority where non-Community waters are concerned involves international commitments entered into with either individual countries (negotiation and conclusion of agreements) or groups of countries (Community representation in international fishery organisations).
The scope of the (CFP) was recently confirmed by Article 1 of Council Regulation (EC) No 2371/2002. Thus there are two aspects to the Community’s authority: it embraces live aquatic resources, aquaculture, and the processing and marketing of fishery and aquaculture products in waters falling under the sovereignty or jurisdiction of the member states, and covers all fishing activities in these waters, whether carried out by fishermen and vessels of the member states or by those of other countries.
It takes in all fishing by fishermen and vessels of the member states both within Community waters and on the high seas and within the fishing zones of other countries, in the latter instances in conformity with the rules of international law.
The regulatory corpus of the (CFP) is directly applicable in the member states’ domestic legal systems and takes precedence over their domestic laws. Accordingly, national authorities would be in violation of their obligations if they were to adopt legal acts setting aside application of the EC Treaty or of Community Law adopted under it. Nothing a member state does can affect the uniform validity of Community law throughout the Community.
The provisions of the EC Treaty can be modified only by a fresh treaty ratified by all member states.
Article 58 of the draft treaty establishing a Constitution for Europe makes provision for voluntary withdrawal from the Union but not for withdrawal from a specific Union policy.
It will be clear from that has been said that, as Community law stands at present and would stand under the draft constitution, a member state cannot depart from its obligation to apply the common rules adopted within the compass of the (CFP).
Fischler’s opinion, therefore, while legally correct, is a legal rather than a political statement. Legally, withdrawal from the CFP might not be possible, but there are no such political constraints.