of the marine environment and not for the conservation of fisheries resources only.
However, unlike the advocate general, who concluded on the application of Article 2
(2) TFEU on the definition of shared competences of the EU, the Court stated on the
facts that “to permit the European Union to have recourse, within the CCAMLR, to
the power which it has to act without the participation of its Member States in an area
of shared competence, when, unlike it, some of them have the status of Antarctic
Treaty consultative parties, might well, given the particular position held by
the Canberra Convention within the system of Antarctic agreements, undermine
the responsibilities and rights of those consultative parties—which could weaken the
coherence of that system of agreements [. . .].”
45 The Council, finally, was competent
to adopt the contested documents not only in order to ensure internal coherence, as
regards the definition of shared competences, but also to protect the external
coherence of the Antarctic Treaty System, although it acted in the field of shared
competences without member States’ participation.
In conclusion to an article on “The Protection of Biodiversity in the Framework of
the Common Fisheries Policy: What Room for the Shared Competence?”, Marta
Chantal Ribeiro focused on the “balance and tension between exclusive and shared
competences” of the EU.
46 The same argument could be made here: there is indeed
undoubtedly a tension (substantive and institutional) between shared and exclusive
competences of the EU regarding the conservation of marine environment and
biodiversity.
3 The European Union and the Substance of the Future
International Legally Binding Instrument on Marine
Biodiversity
3.1 The Balanced and Pragmatic Position of the European
Union Regarding the Elements of the Package Deal
As mentioned above, the future regime of areas beyond national jurisdiction should
fit the elements of the package deal agreed on in 2011.
47 The elements of the package
indeed remain at the centre of the discussions of the intergovernmental conference,
with the mandate of negotiating a legally binding instrument on the basis of
Resolution 69/292 and of the recommendations of the Preparatory Committee. The
conference met for the first time from 4th to 17th September 2018
48 as settled in
45 European Commission v. Council of the European Union, Judgment of the Court (Grand
Chamber), 20 November 2018, joined cases C-626/15 and C-659/16, §133.
46 Ribeiro (2017), pp. 65–86.
47 Annex to Resolution 66/231 of the UNGA.
48 IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on
an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the
390
P. Ricard
However, unlike the advocate general, who concluded on the application of Article 2
(2) TFEU on the definition of shared competences of the EU, the Court stated on the
facts that “to permit the European Union to have recourse, within the CCAMLR, to
the power which it has to act without the participation of its Member States in an area
of shared competence, when, unlike it, some of them have the status of Antarctic
Treaty consultative parties, might well, given the particular position held by
the Canberra Convention within the system of Antarctic agreements, undermine
the responsibilities and rights of those consultative parties—which could weaken the
coherence of that system of agreements [. . .].”
45 The Council, finally, was competent
to adopt the contested documents not only in order to ensure internal coherence, as
regards the definition of shared competences, but also to protect the external
coherence of the Antarctic Treaty System, although it acted in the field of shared
competences without member States’ participation.
In conclusion to an article on “The Protection of Biodiversity in the Framework of
the Common Fisheries Policy: What Room for the Shared Competence?”, Marta
Chantal Ribeiro focused on the “balance and tension between exclusive and shared
competences” of the EU.
46 The same argument could be made here: there is indeed
undoubtedly a tension (substantive and institutional) between shared and exclusive
competences of the EU regarding the conservation of marine environment and
biodiversity.
3 The European Union and the Substance of the Future
International Legally Binding Instrument on Marine
Biodiversity
3.1 The Balanced and Pragmatic Position of the European
Union Regarding the Elements of the Package Deal
As mentioned above, the future regime of areas beyond national jurisdiction should
fit the elements of the package deal agreed on in 2011.
47 The elements of the package
indeed remain at the centre of the discussions of the intergovernmental conference,
with the mandate of negotiating a legally binding instrument on the basis of
Resolution 69/292 and of the recommendations of the Preparatory Committee. The
conference met for the first time from 4th to 17th September 2018
48 as settled in
45 European Commission v. Council of the European Union, Judgment of the Court (Grand
Chamber), 20 November 2018, joined cases C-626/15 and C-659/16, §133.
46 Ribeiro (2017), pp. 65–86.
47 Annex to Resolution 66/231 of the UNGA.
48 IISD Reporting service, “Summary of the First Session of the Intergovernmental Conference on
an International Legally Binding Instrument under the UN Convention on the Law of the Sea on the
390
P. Ricard