not exercised with respect to all human activities, but only in relation to fishing,
fishing-related activities and research.
The Opinion of Advocate General Kokott notes that “the planned CCAMLR rules
on the establishment of various” MPAs “are by no means restricted to fisheries
activities but also, for example, prohibit the discharging or dumping of waste”.
58
This overlooks the long-standing and consistent practice of CCAMLR to impose
such prohibitions only on fishing vessels and, occasionally, also on vessels
conducting scientific research activities.
59 Moreover, in support of the argument
that the context of the envisaged MPAs is “not characterised solely by fisheries
policy, but encompasses general environmental protection considerations”, Kokott
arguably interprets Article V(2) of the CAMLR Convention too widely. This
provision ensures that parties to the CAMLR Convention that are non-parties to
the Antarctic Treaty are bound to measures for “the protection of the Antarctic
environment from all forms of harmful human interference” adopted and in effect
under that Treaty. Kokott then offers the following observations:
Such interference of human origin can undoubtedly occur in areas other than fishing. The
Council very rightly points to possible drilling operations to extract mineral resources.
Furthermore, I think it conceivable that sooner or later the construction of wind farms
could be discussed.
60
While these observations aptly illustrate the broader context of the ATS in which
CCAMLR is positioned, they seem to ignore the crucial point that CCAMLR would
not have any competence whatsoever on these other human activities.
In the end, both of the European Commission’s substantive pleas in favor of the
EU’s exclusive competence were dismissed by the Court. The plea relating to the
EU’s exclusive external competence based on Article 3(2) of the TFEU
61 was
dismissed as incompatible with international law, inter alia, because the EU does
not have a fully autonomous status within CCAMLR.
62 The Judgement is thereby a
success for those EU Member States that participate in CCAMLR as Members
alongside the EU and want to have the ability to exercise within CCAMLR their
shared competence in matters that fall outside the domain of the CFP. The Judgement is also expected to have removed any remaining juridical obstacles to the
Netherlands’ application for membership prior to the 38th (2019) Annual CCAMLR
Meeting.
63
58 Opinion of Advocate General Kokott of 31 May 2018, at para. 94.
59 See note 53 supra.
60 Para. 95.
61 Treaty on the Functioning of the European Union (consolidated version available at http://eur-lex.
europa.eu/collection/eu-law/treaties.html).
62 Judgement, at paras 128 and 130. The Court relies in this regard on Arts V(1) and (2), VII(2)
(c) and XXIX(2) of the CAMLR Convention.
63 The Netherlands became an Acceding State to the CAMLR Convention in 1990. While the
Netherlands intended to apply for membership in 2018 (Report of the 36th (2017) Annual
CCAMLR Meeting, paras 2.4 and 12.15), its application was put on hold to await the ECJ’s
5 Regional Fisheries Management Organizations
95
fishing-related activities and research.
The Opinion of Advocate General Kokott notes that “the planned CCAMLR rules
on the establishment of various” MPAs “are by no means restricted to fisheries
activities but also, for example, prohibit the discharging or dumping of waste”.
58
This overlooks the long-standing and consistent practice of CCAMLR to impose
such prohibitions only on fishing vessels and, occasionally, also on vessels
conducting scientific research activities.
59 Moreover, in support of the argument
that the context of the envisaged MPAs is “not characterised solely by fisheries
policy, but encompasses general environmental protection considerations”, Kokott
arguably interprets Article V(2) of the CAMLR Convention too widely. This
provision ensures that parties to the CAMLR Convention that are non-parties to
the Antarctic Treaty are bound to measures for “the protection of the Antarctic
environment from all forms of harmful human interference” adopted and in effect
under that Treaty. Kokott then offers the following observations:
Such interference of human origin can undoubtedly occur in areas other than fishing. The
Council very rightly points to possible drilling operations to extract mineral resources.
Furthermore, I think it conceivable that sooner or later the construction of wind farms
could be discussed.
60
While these observations aptly illustrate the broader context of the ATS in which
CCAMLR is positioned, they seem to ignore the crucial point that CCAMLR would
not have any competence whatsoever on these other human activities.
In the end, both of the European Commission’s substantive pleas in favor of the
EU’s exclusive competence were dismissed by the Court. The plea relating to the
EU’s exclusive external competence based on Article 3(2) of the TFEU
61 was
dismissed as incompatible with international law, inter alia, because the EU does
not have a fully autonomous status within CCAMLR.
62 The Judgement is thereby a
success for those EU Member States that participate in CCAMLR as Members
alongside the EU and want to have the ability to exercise within CCAMLR their
shared competence in matters that fall outside the domain of the CFP. The Judgement is also expected to have removed any remaining juridical obstacles to the
Netherlands’ application for membership prior to the 38th (2019) Annual CCAMLR
Meeting.
63
58 Opinion of Advocate General Kokott of 31 May 2018, at para. 94.
59 See note 53 supra.
60 Para. 95.
61 Treaty on the Functioning of the European Union (consolidated version available at http://eur-lex.
europa.eu/collection/eu-law/treaties.html).
62 Judgement, at paras 128 and 130. The Court relies in this regard on Arts V(1) and (2), VII(2)
(c) and XXIX(2) of the CAMLR Convention.
63 The Netherlands became an Acceding State to the CAMLR Convention in 1990. While the
Netherlands intended to apply for membership in 2018 (Report of the 36th (2017) Annual
CCAMLR Meeting, paras 2.4 and 12.15), its application was put on hold to await the ECJ’s
5 Regional Fisheries Management Organizations
95