Legal background Legal background to the Common Fisheries Policy
Article 2(1) of the Treaty on the Functioning of the European Union (TFEU) provides that the EU has exclusive competence in several areas. These are set out in Article 3(1) TFEU and include: -
"(d) the conservation of marine biological resources under the common fisheries policy".
As an EU Member State, the UK therefore does not have competence to act in relation to the conservation of marine biological resources under the CFP. This means that the EU has made most of the law applicable in the UK in relation to fishing and the need for marine conservation in connection with fishing activities. The CFP does, however, provide for Member States to manage their territorial waters (provided they do so consistently with any CFP rules).
	Under Article 3(2) of the TFEU, the EU generally has exclusive competence in relation to international matters where it has exclusive internal competence. The EU has entered into a large number of fisheries agreements with third countries and is a member of several RFMOs.
	Article 2(2) TFEU provides that in areas of shared competence the Member States may exercise their competence to the extent that the EU has not exercised its competence. The areas of shared competence are set out in Article 4(2) TFEU and include
"(d) agriculture and fisheries, excluding the conservation of marine biological resources;
(e) environment"
	There is therefore shared competence in relation to those aspects of fisheries which do not concern the conservation of marine biological resources, for example, in relation to freshwater fish.
	In some areas, the CFP does allow Member States more autonomy. The CFP allows Member States to restrict access to their 0 to 12 nautical mile area to their own boats and the boats of other Member States which have historic fishing rights in that area and to supplement EU measures in their territorial waters, provided they are non-discriminatory and at least as stringent as measures under EU rules. Member States may also enact measures which apply to their own boats fishing outside territorial waters, provided those measures are consistent with the objectives of the CFP, and are at least as stringent as measures under EU law. This allows the UK to apply technical measures to its own boats, regardless of where they are fishing. In emergencies, Member States can also take temporary measures which apply to all boats, not just their own, in waters within their jurisdiction. Such measures have a time limit of three months.
	Member States have various other powers. These include stipulating which boats may have their nationality and thus fly their flag; licensing their own boats, allocating quota amongst their own boats; administering aspects of the EMFF, and carrying out various tasks in relation to the common organisation of the market in fisheries products. In addition, Member States play a significant role in the enforcement of the CFP.