Document ID: 32014D0617(02)
Language: ENG

<table><col/><col/><col/><col/><tbody><tr><td><p>17.6.2014&#160;&#160;&#160;</p></td><td><p>EN</p></td><td><p>Official Journal of the European Union</p></td><td><p>C 185/17</p></td></tr></tbody></table>
COMMISSION DECISION
of 10 June 2014
on notifying a Third Country that the Commission considers as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing
(2014/C 185/03)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, amending Regulations (EEC) No 2847/93, (EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and (EC) No 1447/1999 ( 1 ) , and in particular Article 32 thereof,
Whereas:
1. INTRODUCTION
<table><col/><col/><tbody><tr><td><p>(1)</p></td><td><p>Council Regulation (EC) No 1005/2008 (the IUU Regulation) establishes a Union system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(2)</p></td><td><p>Chapter VI of the IUU Regulation lays down the procedure with respect to the identification of non-cooperating Third Countries,<span>d&#233;marches</span> in respect of countries identified as non-cooperating Third Countries, the establishment of a list of non-cooperating countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any emergency measures.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(3)</p></td><td><p>In accordance with Article 32 of the IUU Regulation, the Commission should notify Third Countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification of Third Countries of the possibility of their being identified as non-cooperating countries shall be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission should also take all the<span>d&#233;marches</span> set out in Article 32 with respect to those countries. In particular, the Commission should include in the notification information concerning the essential facts and considerations underlying such identification, the opportunity of those countries to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and measures taken to rectify the situation. The Commission should give to the Third Countries concerned adequate time to answer the notification and reasonable time to remedy the situation.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(4)</p></td><td><p>Pursuant to Article 31 of the IUU Regulation, the Commission may identify Third Countries that it considers as non-cooperating countries in fighting IUU fishing. A Third Country may be identified as a non-cooperating Third Country if it fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(5)</p></td><td><p>The identification of non-cooperating Third Countries will be based on the review of all information as set out under Article 31(2) of the IUU Regulation.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(6)</p></td><td><p>In accordance with Article 33 of the IUU Regulation, the Council may establish a list of non-cooperating countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(7)</p></td><td><p>Pursuant to Article 20(1) of the IUU Regulation, Third Country flag States are requested to notify the Commission of their arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by their fishing vessels.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(8)</p></td><td><p>Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with Third Countries in areas pertaining to the implementation of that Regulation.</p></td></tr></tbody></table>
2. PROCEDURE WITH RESPECT TO THE REPUBLIC OF THE PHILIPPINES
<table><col/><col/><tbody><tr><td><p>(9)</p></td><td><p>The notification of the Republic of the Philippines (the Philippines) as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 15 January 2010.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(10)</p></td><td><p>From 23 to 27 January 2012, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to the Philippines in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(11)</p></td><td><p>The mission sought to verify information concerning the Philippines&#8217; arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by the Philippines in order to implement its obligations in the fight against IUU fishing and to fulfil the requirements and points pertaining to the implementation of the catch certification scheme of the Union.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(12)</p></td><td><p>The Philippines submitted additional information on 3 February 2012.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(13)</p></td><td><p>The final report of the mission was sent to the Philippines on 21 February 2012.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(14)</p></td><td><p>The comments of the Philippines on the final report of the mission were received on 24 March 2012.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(15)</p></td><td><p>A subsequent mission of the Commission to the Philippines to follow up the actions taken in the first mission was conducted from 25 to 27 June 2012.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(16)</p></td><td><p>The Commission provided to the Philippines on 28 June 2012 written observations on the Philippines plan to address IUU issues.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(17)</p></td><td><p>The Philippines submitted additional information on 4 October 2012, 12 December 2012 and 14 February 2013.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(18)</p></td><td><p>A videoconference took place between the Philippines and Commission Services on 8 February 2013.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(19)</p></td><td><p>The Philippines submitted additional information on 22 April 2013.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(20)</p></td><td><p>A technical meeting took place in Brussels on 25 April 2013, where the Philippines submitted additional information.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(21)</p></td><td><p>A further meeting between the Philippines and Commission services was held on 11 June 2013 in Brussels.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(22)</p></td><td><p>The Philippines submitted additional information on 14 June 2013. With this submission the Philippines authorities updated the Commission on the progress made on their action plan to address IUU issues and submitted the draft National Plan of Action on IUU fishing and the initial draft bills to revise the Fisheries Law.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(23)</p></td><td><p>The Commission, with the assistance of the European Fisheries Control Agency (EFCA), and at the request of the Philippines authorities, has organised a capacity building workshop in Manila from 22 to 26 July 2013, focusing on port state measures and risk analysis.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(24)</p></td><td><p>The Philippines submitted additional information on 11 November 2013.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(25)</p></td><td><p>A meeting between the Philippines and Commission services was held on 22 November 2013 in Brussels.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(26)</p></td><td><p>In December 2013 the Commission received the information from the Philippines authorities that it has signed the Executive Order adopting the National Plan of Action for IUU. The authorities have furthermore provided the Commission with the Memorandum of Understanding signed on 9 December 2013, creating a Joint Committee of Fisheries Cooperation between the Philippines and Papua New Guinea authorities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(27)</p></td><td><p>In February 2014, the Commission received a submission containing in particular the National Plan of Action for IUU, the new draft for the revision of the Fisheries Law and the draft regulation on traceability. The draft Fisheries Law had been tabled in the Senate and the Philippine House of Representatives.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(28)</p></td><td><p>A meeting between the Philippines and Commission services was held on 5 March 2014 in Brussels. The Philippines submitted additional information on 25 March 2014, 3 May 2014 and 15 May 2014.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(29)</p></td><td><p>Throughout the exchange described above, the Philippines have adopted a constructive approach in cooperating with the Commission. Indeed, significant progress in addressing the main challenges identified during the on spot missions was made. Nonetheless, there are still series of shortcomings which have not been fully addressed.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(30)</p></td><td><p>The Philippines is a member of the Western and Central Pacific Fisheries Commission (WCPFC), the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC). The Philippines is also a cooperating non-member of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). The Philippines has ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS).</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(31)</p></td><td><p>In order to evaluate the compliance of the Philippines with its international obligations as flag, port, coastal or market State set out in the international agreements mentioned in the recital 30 and established by the relevant Regional Fisheries Management Organisations (RFMOs) mentioned in the recital 30, the Commission sought and analysed all the information it deemed necessary for the purpose of that exercise.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(32)</p></td><td><p>The Commission used information derived from available data published by the relevant RFMOs as well as publicly available information.</p></td></tr></tbody></table>
3. POSSIBILITY OF THE PHILIPPINES OF BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY
<table><col/><col/><tbody><tr><td><p>(33)</p></td><td><p>Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of the Philippines as flag, port, coastal or market State. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.</p></td></tr></tbody></table>
3.1. Recurrence of IUU Vessels and IUU trade flows (Article 31(4) of the IUU Regulation)
<table><col/><col/><tbody><tr><td><p>(34)</p></td><td><p>With respect to Philippines-flagged vessels, on the basis of information retrieved from RFMOs vessel lists there are no vessels in provisional or final IUU lists and no evidence of past cases of Philippines-flagged vessels exists that would enable the Commission to analyse the performance of the Philippines with respect to recurring IUU fishing activities in accordance with Article 31(4)(a).</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(35)</p></td><td><p>Pursuant to Article 31(4)(b), the Commission also examined the measures taken by the Philippines in respect of access of fisheries products stemming from IUU fishing to its market.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(36)</p></td><td><p>The Commission considers, on the basis of an assessment of all the information at its disposal that the Philippines cannot ensure that fishery products entering the Philippines or Philippines-based processing plants do not stem from IUU fishing. This is due to systemic problems undermining the possibility of the Philippines authorities to trace catches because of the lack of available official information about fish landed, imported and/or processed. The main elements at the basis of the Commission&#8217;s assessment are summarised hereinafter.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(37)</p></td><td><p>The Philippines have a large fishing fleet which catches fish in waters under its jurisdiction, as well as on the high seas and in the waters under jurisdiction of other States. According to information provided during the Commission&#8217;s first mission in 2012 and to public available information, the fleet amounted to around 9&#160;300 commercial fishing vessels and around 470&#160;000&#8216;bancas&#8217; (small artisanal fishing vessels)<a>&#160;(<span>2</span>)</a>. Artisanal fishermen do not operate in waters beyond national jurisdiction and their catches are at least in part exported to the EU. The Philippines has a large long distance fleet which includes, as of March 2014, 68 vessels targeting tuna (&#8216;tuna vessels&#8217;) registered on the IOTC list of authorised fishing vessels and 18 tuna vessels registered on the ICCAT list of authorised fishing vessels. According to the information submitted by the Philippines in their Annual Fishery Reports of 2012 and 2013 to the WCPFC, the Philippines had 622 fishing vessels (including transport and carrier vessels) registered as of 1 July 2012 and 722 fishing vessels registered as of 11 June 2013 with that RFMO<a>&#160;(<span>3</span>)</a>. The Philippines vessels target mainly tuna. The yearly catch data of tuna submitted by the Philippines include all the tuna catch unloaded in Philippine ports, regardless of where they were caught and does not distinguish those catches in accordance with their provenance or in accordance with the flag of the catching vessel. This creates doubts about the capacity to effectively trace those catches, as it will be further explained in the recitals 46 to 55.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(38)</p></td><td><p>Based on the data from the Philippines Bureau of Fisheries and Aquatic Resources (BFAR), the usual international fishing grounds of Philippine vessels are: the Celebes Sea, the Indonesian waters, the Malaysian waters, the Palau waters, Papua New Guinea, Western Pacific, and the areas of ICCAT and IOTC. The Philippines has concluded fisheries agreements with Papua New Guinea, Kiribati and the Salomon Islands. According to information provided during the meeting of 5 March 2014, most of the fishing vessels (purse seiners) are operating in Papua New Guinea&#8217;s waters (46) and the high seas pockets of WCPFC (33). So far only two fishing vessels are operating in the Solomon Islands. The catches landed in Papua New Guinea also supply the EU market (canned tuna). Moreover, as of March 2014, there are six active Philippine vessels operating in IOTC area and eight in ICCAT area. The only foreign chartered fishing vessels are fishing carriers and they only operate in the WCPFC area. Indeed, no foreign fishing vessels are currently allowed to fish in the Philippines&#8217; EEZ.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(39)</p></td><td><p>The composition of the Philippine fleet, in combination with the variety of sources of fishery products entering in the supply chain, and with an insufficient traceability system, entails a clear risk of access of IUU products to the Philippines market.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(40)</p></td><td><p>With a view to the tuna processing industry in the Philippines, the Commission analysed the situation pertaining to the activities of this industry and any impact that its operations may have in respect of access of fisheries products stemming from IUU fishing to its market.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(41)</p></td><td><p>The International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) provides guidance on internationally agreed market-related measures which supports reduction or elimination of trade in fish and fish products derived from IUU fishing as well as suggests in point 71 that States should take steps to improve the transparency of their markets in order to allow the traceability of fish or fish products. Equally, the FAO Code of Conduct for Responsible Fisheries outlines, in particular in Article 11, addresses good practices for post-harvest and responsible international trade. Article 11(1)(11) requests States to ensure that fish and fishery products are traded internationally and domestically in accordance with sound conservation and management practices through improving the identification of the origin of fish and fishery products.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(42)</p></td><td><p>Processing plants receive their raw material from Philippines-flagged vessels operating in the waters under national jurisdiction of the Philippines, on the high seas and in waters under the jurisdiction of third States, as well as from foreign-flagged vessels landing fish in the Philippines and from imports.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(43)</p></td><td><p>Some of the vessels landing fish in the Philippines are flying the flags of Korea and Papua New Guinea. In this respect it is recalled that Korea has been notified by the Commission on 26 November 2013<a>&#160;(<span>4</span>)</a> that it is considered as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, whereas Papua New Guinea (PNG) was notified by the Commission on the same date as the Philippines. Fish also originates from Philippines fishing companies operating in Papua New Guinea<a>&#160;(<span>5</span>)</a>.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(44)</p></td><td><p>Fish imported and processed in the Philippines can furthermore originate from Third Countries, including from countries not notified by the Commission such as Vanuatu, Kiribati and the Federated States of Micronesia<a>&#160;(<span>6</span>)</a>. In this respect it is recalled that Vanuatu, Kiribati and Federated States of Micronesia are not able to export fishery products to the European Union as their flag State notifications in accordance with Article 20 of the IUU Regulation have not been accepted by the Commission.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(45)</p></td><td><p>In line with the basic principles of Article 11(1)(11) of the FAO Code of Conduct for responsible Fisheries the Philippines should be able to monitor origin of fish and fisheries products and consequently guarantee that EU non-compliant fish is not exported to the EU. However, the Philippines does not implement the traceability scheme which would be needed to avoid that it imports and re-exports raw material and fish products from non-notified countries and countries identified as non-cooperating countries to the EU. A working traceability system would indeed be necessary from the stage of landing to that of export, or from the stage of import to subsequent export. However, such a system is not in place in the Philippines and the lack of control and monitoring of fishing activities in particular of landing, the dearth of inspections at sea and in port, the lack of checks on the logbooks entail that IUU fishing products may have easy access to the Philippines, and the EU market. In addition, it is common business practice that fish stemming from Philippines flagged vessels is captured in the waters of Third Countries and subsequently either landed to Third Countries for further processing, or transhipped in the waters of Third Countries and subsequently sent for further processing in another country. Therefore, many transactions at risk take place outside the waters of Philippines. Philippines authorities are expected to have full responsibility of their vessels in accordance with Article 94 UNCLOS. However, the Philippines does not implement any measure needed to ensure that authorities are controlling the veracity of information and traceability of transactions pertaining to their vessels activities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(46)</p></td><td><p>The Philippines adopted the Fisheries Administrative Order No 241 on the implementation of the Vessel Monitoring System in the High Seas. Nevertheless, the Philippines does not have operational access to the necessary information on position or activities of some of its own vessels operating in Third Countries waters, such as in Papua New Guinea. This impairs the Philippines&#8217; ability to assume its full responsibilities as flag State regarding the correct issuing of catch certificates. A more detailed analysis of problems related to monitoring, control and surveillance is undertaken in Section 3.2.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(47)</p></td><td><p>While landing declarations are crucial for traceability in order to guarantee control and hence not to lose track of the input and output from the companies, they are not used for all catches landed in the Philippines. To be fully reliable, the content of such a document (in terms of quantities of fish caught and species) must be controlled and confirmed by an independent authority; relying on the figures provided by the company, as the Philippines does in many occasions, is not sufficient. Also, in order to effectively monitor the fishing activities, the filling of landing declarations should be a requirement for fishing vessels, wherever they land their catch, whereas currently, this is only a requirement for landings in the Philippines. The Philippines&#8217; authorities have not implemented any coherent set of measures on documentary checks for landings or transhipments taking place in Third Countries. With regards to catches originated in PNG, the Commission has established during its first mission in the Philippines in 2012 that the authorities were not always aware if fish was landed in PNG or transhipped in PNG waters before being sent to the Philippines.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(48)</p></td><td><p>The Philippines have introduced in their legislation a catch certification scheme. Section 13 of the Fisheries Administrative Order No 238 on Rules and Regulations Governing the Implementation of Council Regulation (EC) No 1005/2008 on the Catch Certification Scheme established the &#8216;catch validation certificate&#8217; (CVC), renamed as &#8216;catch origin landing declaration&#8217; (COLD) by Fisheries Administrative Order No 238-1. The use of COLD, a kind of landing declaration, is compulsory only for vessels landing in a particular port in the Philippines; this excludes application of Order No 238-1 to Philippine flagged vessels landing catch in other countries, which is a regular occurrence.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(49)</p></td><td><p>For commercial fishing vessels, a fish landing certificate is filled in at landing and signed by BFAR inspectors. The problem is that the landing certificate includes information on catching vessels even when catches are landed by carriers. Therefore, inspectors can be certifying landings of fishing vessels still at sea without any information about the fishing operations. Also, the current fish landing certificate system does not ensure sufficient traceability, as it does not link all available and relevant information with each other, such as the landing vessel and the processing plant to which the catches are destined.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(50)</p></td><td><p>In the case of artisanal fisheries, there are almost no controls at sea or at the landing point; fish catch reports are not signed by local authorities but are certified by the processing plants on receipt of the raw material. The authorities explained that due to lack of resources it is very rare that a government agent from the relevant authority is present during landings. Hence, in the absence of an official representative of the Authorities at the time the fish catch report is filled in, there can be several landings declared for one fishing vessel mixing catches from registered and licensed vessels with catches from artisanal vessels non-licensed and non-registered. This is problematic as such reports are one of the main documents used for the issuance of simplified catch certificates.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(51)</p></td><td><p>The BFAR relies on information provided by the operators or processing plants, instead of verifying and validating the data in catch certificates based on its own assessment. The Philippines have failed to develop a coherent control scheme to review the companies&#8217; traceability procedures. For example, despite the large number of documents requested prior to validating the catch certificate (regular and simplified), the BFAR cannot verify whether the weight indicated in the catch certificate is correct as it does not carry out any control inside factories. Therefore, the validation of the catch certificate can be qualified as being &#8216;blind&#8217; and the risk that IUU catches are channelled into export streams is real.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(52)</p></td><td><p>The Commission first mission in 2012 revealed occurrences of lack of control over quantities processed, where the quantities obtained after processing were mainly the same than the ones before processing. In the case of canned tuna this is impossible as some parts of the body of the fish need to be discarded, and may indicate a possible introduction of IUU products into the production and export streams.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(53)</p></td><td><p>During the first mission of the Commission in 2012, it was also established that companies requesting a catch certificate are informally authorised to issue a catch certificate number, which must be a series of specific codes as prescribed by BFAR (to allow identification of e.g. the exporter or region) and a consecutive serial number. In the absence of a database or electronic system, there is no control over these numbers, representing a certain risk for abuse of the same number being used for different consignments.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(54)</p></td><td><p>The problem of traceability is strengthened by practices of uncontrolled transhipment at sea. Access of fishery products to the Philippines&#8217; market is indeed possible through carrier vessels and, in view of the deficiencies on the control and traceability of the landings explained in recital 49, there is a risk of importing fish stemming from IUU fishing to the Philippines. Transhipment is widespread, as most of the fishing operations of the commercial fleet, at the exception of big longliners operating in the IOTC area, are supported by carrier boats, which load fish from fishing vessels known as catchers and bring it to a port or processing facilities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(55)</p></td><td><p>In this respect it must be recalled that the lack of control on transhipment undermines the ability of the authorities to control the catches made by purse seiners and, therefore, creates a risk of under-reporting of catches. The limited presence of patrol vessels, the limited coverage by on-board observers (except during the fish aggregating devices (FAD) closure period, e.g. summer time) and the current weak operational status of the VMS may also favour IUU fishing activities. There are also weaknesses in the control of artisanal fisheries, such as limited control at landing, and limited surveillance at sea. Furthermore, the licence system is still not implemented in all municipalities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(56)</p></td><td><p>The Philippines authorities have recognised in various submissions the deficiencies of their systems with respect to traceability. In their submission of 25 February Philippines has presented a regulation of traceability. However, until now the Commission has not observed any tangible progress with respect to traceability.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(57)</p></td><td><p>Hence, as seen above in recitals 46 to 54, the lack of controls over the catch certificates of imports and over processing plants as well as the number of channels through which the fish can be sourced are incentives for the long-distance fleet to export IUU fishery products together with legal fish, whether domestic catches or foreign ones. The limited control over the activities at sea (fishing and transhipment) further strengthens the problem, as will be examined in recitals 67 to 75 in Section 3.2.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(58)</p></td><td><p>The Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries (FAO Code of Conduct) recommends transparency in fisheries laws and their preparation as well as for respective policy- and decision- making and management processes (paragraphs 6(13) and 7(1)(9) respectively). It provides principles and standards applicable to the conservation, management and development of all fisheries and covers also, amongst others, capture, processing and trade of fish and fishery products, fishing operations and fisheries research. The FAO Code of Conduct, in paragraphs 11(2) and 11(3), specifies further that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures as well as on transparent, simple and comprehensive laws, regulations and administrative procedures.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(59)</p></td><td><p>Although the Philippines is aiming at establishing a joint registration system of fishing vessels, there is currently a vessel registration system at the registration authority (Maritime Industry Authority (MARINA)) and a fishing licensing system. As assessed during the first Commission mission in 2012, there are significant shortcomings in the registration system of vessels. A problem of inconsistence in the number of vessels recorded by the MARINA and the two licensing authorities (Ministry of Agriculture (BFAR)/Local Governments Units (LGUs)) exists, as well as a lack of structured cooperation between these entities. Following the Commission missions, BFAR and MARINA concluded Memorandum of Understanding on their cooperation. Furthermore, a high number of small vessels fishing in municipal waters are not registered by the responsible LGUs (this number is even estimated up to 50 %) making their control difficult. Furthermore, the Commission established during its missions that there are also shortcomings in management of fishing licences since the numbers on issued licences and data recorded by the authorities are incomplete.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(60)</p></td><td><p>The conditions for vessels registration should be linked to fishing licenses, as established in Article 40 IPOA-IUU, and should be clear, transparent and publicly available. However, in the Philippines, a big discrepancy was observed between the numbers of commercial fishing vessels registered and those licensed in the country. Indeed, according to the MARINA only 3&#160;700 fishing vessels including artisanal boats were registered in 2010 although almost 8&#160;000 commercial fishing vessels were licensed in 2011. Therefore, the database managed by the MARINA is not updated as there are more licensed fishing vessels than registered ones, which is actually impossible. Including artisanal and commercial boats in the same database is not appropriate considering that LGUs are not sending accurate data on a regular basis. As a result, the overall figure is incorrect. This leads to the conclusion that the register is not up-to-date.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(61)</p></td><td><p>The variety of types of fishing vessels (operating in municipal fisheries and commercial fisheries, further subdivided in small, medium and large vessels) as well as of fishing licences (issued by BFAR for commercial fisheries vessels and discretionarily issued by LGUs for artisanal fisheries vessels) and the resulting complexity of the licensing system undermines the possibility to trace fishing activities and the monitoring, control and surveillance efforts. The lack of reliable and complete information on vessel registration and licenses affects directly the possibility to issue correct catch certificates.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(62)</p></td><td><p>With the established lack of traceability and lack of information available to the Philippines authorities about the fish landed, these latters cannot ensure that fishery products entering the Philippines or the Philippines-based processing plants do not stem from IUU fishing, as presented in recitals 43 to 56.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(63)</p></td><td><p>In view of the situation explained in this Section of the Decision and on the basis of all factual elements gathered by the Commission as well as the statements made by the country, it could be established, pursuant to Article 31(3) and 31(4) (b) of the IUU Regulation, that the Philippines has failed to discharge the duties incumbent upon it under international law as a coastal and market State to prevent access of fisheries products stemming from IUU fishing to its market.</p></td></tr></tbody></table>
3.2. Failure to cooperate and to enforce (Article 31(5)(a), (b), (c) and (d) of the IUU Regulation)
<table><col/><col/><tbody><tr><td><p>(64)</p></td><td><p>The Commission first analysed whether the Philippines authorities effectively cooperate with the Commission, by providing a response to requests made by the Commission to investigate, provide feed-back or follow-up on IUU fishing and associated activities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(65)</p></td><td><p>The Philippines authorities involved in the implementation of the catch certification scheme of the EU IUU Regulation are generally cooperative to respond and provide feedback to requests for information or verification, the reliability of their replies is compromised by the lack of transparency and the little or no possibilities to ensure traceability of fishery products as established in Section 3(1) of the Decision.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(66)</p></td><td><p>Second, in the framework of the overall assessment of the fulfilment of the Philippines&#8217; duties to discharge its obligations as flag, port and coastal State, the Commission also analysed whether the Philippines cooperates with other flag States in the fight against IUU fishing.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(67)</p></td><td><p>As presented in recital 46, the Philippines does not have access to the necessary information on position or activities of its own vessels operating in Third Countries waters such as in PNG. Whereas cooperation is inadequate, the Philippines continues to allow vessels flying its flag to fish in Third Countries waters and hence it cannot assume its full responsibility as flag State regarding the operations of its vessels outside its waters and the veracity of information when validating catch certificates.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(68)</p></td><td><p>Third, the flag State&#8217;s duty includes an obligation to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, as foreseen by Article 94 of the UNCLOS and by the IPOA IUU. Point 24 of the IPOA IUU advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing, to final destination, including by implementing the Vessels Monitoring System (VMS) in accordance with the relevant national, regional and international standards. This includes the requirement for vessels under its jurisdiction to carry VMS on board. It also includes the obligation to submit regularly logbook information on catches, something which the Commission first mission in January 2012 found that in the Philippines was taking place only at the time of renewal of licence, which occurs every 3 years. As examined hereinafter, the Philippines has failed to comply with the obligation under UNCLOS and to take into consideration the recommendation included in the IPOA IUU, in particular with regard to its control over its fleet, and the monitoring, control and surveillance measures adopted and implemented.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(69)</p></td><td><p>The Philippines&#8217; problems in controlling its fleet are partially due to lack of administrative capacity, because the size of its fishing fleet overcomes its ability to control the vessels. Indeed, the Commission observed a significant imbalance between the administrative capacities of the Philippines to monitor and control fishing activities of vessels operating in its waters, and the number of registered vessels/fishing licences delivered (amounting to around 9&#160;300 commercial fishing vessels and around 470&#160;000&#8216;bancas&#8217;). This situation confirms that, compared to the size of the fishing activity taking place in waters under its jurisdiction, the Philippines has an insufficient enforcement capacity, despite the increase of human and budgetary resources foreseen in 2014. The Commission considers that this lack of means to intervene at sea jeopardises any enforcement effort.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(70)</p></td><td><p>The Philippines adopted in 2012 the &#8216;Fisheries Administrative Order No 241 on the Regulations and Implementation of the Vessel Monitoring System in the High Seas&#8217;. The Order requires that the VMS shall apply to all licensed Philippine flagged commercial fishing vessels authorised by the BFAR to operate in the high seas and also to those fishing vessels enjoying rights of access to fish in other countries&#8217; EEZs. As stipulated by the Order, the VMS requirement shall first be applied to all Philippine flagged vessels authorised to conduct tuna fishing in the high seas or with access rights to fish in other countries&#8217; EEZs. Subsequently, the schedule of application of VMS to other fishing vessels/gears operating in all other fishing areas shall be determined in the future consultations with the stakeholders unless otherwise required by other laws and existing Fisheries Administrative Orders. Up to now, the established facts show that despite the existing rules the Philippines has only made a partial implementation of the VMS obligations.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(71)</p></td><td><p>As described by the Philippines in the NPOA IUU submitted to the Commission, the VMS covers Philippine flagged fishing vessels operating in High Seas Pocket Number 1 and fishing grounds under the jurisdiction of other RFMOs. Through the Fisheries Administrative Order No 241, all Philippine flagged fishing vessels operating in the high seas are required to install VMS transponders. However, the Philippines has not submitted to the Commission the information on its intentions and planning of expanding the coverage of VMS in a phased manner to include fishing vessels operating in the Philippine EEZ, as it would be required by Article 94 UNCLOS and Article 24 IPOA-IUU in order to ensure comprehensive and effective monitoring, control and surveillance of fishing.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(72)</p></td><td><p>In the course of the first Commission mission conducted in the Philippines in 2012, the Commission observed that the Fishing Monitoring Centre (FMC) was only in development/pilot stage. Also, the operational VMS data were not available to the Philippine FMC, in particular in the cases of Philippine flagged vessels operating in the Papua New Guinea waters. Moreover, carrying of VMS was not obligatory for a number of vessels. The number of vessels actually reporting data to the Philippines authorities was insignificant. According to the information gathered during the mission in 2012, for only 53 out of 613 Philippine flagged vessels registered at that time at WCPFC the Philippines authorities had a so-called &#8216;view only&#8217; access to the VMS. This &#8216;view only&#8217; access right was in practice a screen shot with the information on the vessels entering/existing international waters under WCPFC Convention area ant not the actual vessel position. It has been also reported problems in respect to VMS coverage of fishing vessels operating in ICCAT and IOTC areas. In their submission of 15 May 2014, the Philippines informed that competent authority is now receiving VMS positions of only some Philippine catcher vessels from PNG authorities. Moreover, in accordance with the information provided by the Philippines, they are not receiving VMS information of the carrier vessels operating together with the catchers in PNG waters.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(73)</p></td><td><p>Furthermore, the Philippines authorities have not had a complete overview of their vessels or of Third Countries vessels possibly operating in its EEZ.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(74)</p></td><td><p>In addition, the competent authorities do not have information on fishery effort conducted by Philippines&#8217; vessels in waters of PNG.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(75)</p></td><td><p>For all the above, the Philippines failed to comply with the provisions of Article 94 of the UNCLOS. Such operational deficiencies are furthermore not in line with point 24 of the IPOA IUU.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(76)</p></td><td><p>Fourth, with respect to effective enforcement measures, the IPOA IUU in point 21 advises States to ensure that sanctions for IUU fishing by vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. As examined hereinafter, the Philippines does not have the legal framework or the control over its fleet and waters necessary to adequately sanction offenders.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(77)</p></td><td><p>Based on the information retrieved during the Commission missions it was also established that for IUU activities there is an insufficient system of sanctions, which are not effective in securing compliance and do not discourage violations wherever they occur and do not deprive offenders of the benefits accruing from their illegal activities.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(78)</p></td><td><p>With respect to the enforcement measures put in place by the Philippines, the missions conducted by the Commission revealed that there is a need to review the applicable sanctions in respect of violations, as provided for in the Republic Act 8550 or the Philippine Fisheries Code of 1998 (RA 8550), which is the main fisheries legislation currently in force in the country.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(79)</p></td><td><p>The Philippines authorities have acknowledged in their submissions that they do not have a deterrent sanctions scheme in place. The existing level of sanctions is outdated and not proportionate to the seriousness of possible infringements, to the potential impact of the infringements on the resource and to the potential benefit that could derive from such illegal actions to perpetrators. As an example, with regards to the destruction of coral reef in the coast of Cotabato, whose value is deemed at EUR 11,5 billion, the offender would only be punished with a fine of PhP 2&#160;000 (approximately EUR 32) to PhP 20&#160;000 (approximately EUR 320).</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(80)</p></td><td><p>Following the Commission missions in 2012 the Philippine authorities have submitted a draft amending the 1998 Philippine Fisheries Code. The proposed fines, although higher than those stipulated by the currently binding law, appear still not sufficient in severity in order to effectively deprive the offenders of the benefit accruing from IUU fishing. For instance, according to the draft, a fine foreseen for the gear destructive to coral reefs and other marine habitat, which is one of the highest foreseen by this draft, amounts to three times the value of the fish caught through the fishing operation, or two million PhP (approximately EUR 35&#160;000), whichever is higher. This is clearly not sufficient because high economic value of coral reefs as detailed in recital 79. In addition, the draft has been tabled in the Senate and the House of Representatives, but it has not yet been adopted and therefore is not legally binding. The Philippine authorities have not provided a clear timetable for the enactment and implementation of this draft.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(81)</p></td><td><p>Furthermore, the current legislation does not include a definition of IUU fishing, provisions on serious infringements or particular sanctions for recidivists. The new draft foresees the definition of IUU and addresses recidivism. However, it does not include administrative accompaniment measures in a systematic manner. Moreover, while the draft submitted by the Philippines extends the scope of the 1998 Fisheries Code to acts committed in the high seas or in the waters of Third Countries, the current law in force only applies to the waters under the jurisdiction of the Philippines. Hence, as it stands, there is no legal basis for the Philippines authorities to impose sanctions on IUU activities by vessels flying its flag and operating beyond national jurisdiction.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(82)</p></td><td><p>Hence, penalties in their current form are not comprehensive and severe enough to achieve their deterrent function. Indeed, the level of penalties is not adequate to secure compliance, to discourage violations wherever they occur and to deprive offenders of the benefits accruing from their illegal activities, as required by Article 25(7) of the WCPFC Convention. Furthermore, the possibility for sanctioning and effectively following-up infringements is further undermined by the lack of clarity and transparency of laws and procedures, in particular in relation to vessel registration and licensing, traceability and reliability of information and data relating to landings and catch (as presented in recitals 45 to 62), as well as in relation to conservation and management of the resources (as will be described in recitals 100 to 102). This situation makes efficient enforcement and establishment of IUU infringements very difficult. The performance of the Philippines with respect to effective enforcement measures is not in compliance with its obligations under UNCLOS article 94 or in accordance with the recommendations in point 21 of the IPOA IUU.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(83)</p></td><td><p>According to Articles 63 and 64 of UNCLOS, coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. In addition, Article 7(1)(3) of the FAO Code of Conduct recommends that States concerned in the exploitation of straddling and trans-boundary fish stocks establish a bilateral agreement of organisational arrangement to guarantee effective cooperation in order to ensure effective conservation and management of resources. This is further specified in points 28 and 51 of the IPOA IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States. By not sharing the information between the Philippines and PNG enabling to crosscheck the information necessary to validate the catch certificates the application of these provisions is undermined.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(84)</p></td><td><p>In this respect, Article 25(10) of the WCPFC Convention<a>&#160;(<span>7</span>)</a> stipulates that each member of that Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned. However, PNG and the Philippine do not cooperate between each other in exchange of VMS information deemed of paramount importance for compliance by vessels of conservation and management measures. This affects the implementation of this provision.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(85)</p></td><td><p>With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the possibility of assessing these aspects is equally compromised by the described lack of clarity and transparency. As a consequence of such shortcomings, it is not possible to establish, in a reliable way, the potential dimension of IUU fishing related activities. It is however an acknowledged fact that lack of transparency combined with the impossibility of effective controls encourages illegal behaviour.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(86)</p></td><td><p>With respect to the existing capacity of the Philippines authorities, it should be noted that, according to the United Nations Human Development Index<a>&#160;(<span>8</span>)</a>, the Philippines is considered as a medium human development country (114th in 186 countries in 2012). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation<a>&#160;(<span>9</span>)</a> where the Philippines is listed in the category of lower middle income countries and territories, as well as by the information from OECD/DAC of 1 January 2013 for reporting on 2012<a>&#160;(<span>10</span>)</a>. In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of the Philippines to fulfil its cooperation and enforcement duties.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(87)</p></td><td><p>Nevertheless, it should be taken into account that the administrative capacity of the Philippines has been continuously reinforced by Union financial and technical assistance. In particular, the Union has already funded a specific technical assistance action in the Philippines with respect to the fight against IUU fishing in 2011<a>&#160;(<span>11</span>)</a>. In addition, on 22-26 July 2013 the Commission, with the assistance of the European Fisheries Control Agency, and at the request of the Philippines authorities, organised a capacity building workshop in Manila, focusing on the port state measures and risk analysis.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(88)</p></td><td><p>Notwithstanding the analysis under recitals 86 and 87 it is also noted that, on the basis of information derived from the missions carried out in 2012, it cannot be considered that the Philippines authorities are lacking financial resources but rather the necessary legal and administrative environment and ensure efficient and effective performance of their duties.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(89)</p></td><td><p>In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (5) (a), (b), (c) and (d) of the IUU Regulation, that the Philippines has failed to discharge the duties incumbent upon it under international law as coastal and market State in respect of cooperation and enforcement efforts.</p></td></tr></tbody></table>
3.3. Failure to implement international rules (Article 31(6) of the IUU Regulation)
<table><col/><col/><tbody><tr><td><p>(90)</p></td><td><p>The Philippines has ratified the UNCLOS. It is Contracting Party to ICCAT, IOTC and WCPFC as well as cooperating non-member to CCSBT.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(91)</p></td><td><p>The Commission analysed first all information deemed relevant with respect to the status of the Philippines as Contracting Member of IOTC and WCPFC.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(92)</p></td><td><p>The IOTC Compliance Report for the Philippines, issued by the Compliance Committee (CoC) in its Session of 2012<a>&#160;(<span>12</span>)</a>, noted that the Philippines has not incorporated the provisions of IOTC Conservation and Management Measures on marine turtles and thresher sharks into domestic legislation (Resolution 10/6 and 10/12 on seabirds and thresher sharks). Furthermore, it was noted that the Philippines was not fully compliant with the IOTC data reporting requirements, in particular size frequency data that has been only partially reported. The Committee urged the Philippines to make further improvements in data collection and reporting (Resolution 10/02 on minimum reporting requirements). The Philippines has not reported its list of active vessels for 2011 (Resolution 10/08 on the list of active vessels). It has also not submitted the observer reports (Resolution 11/04 on Regional Observer Program). The points of concerns of the Committee about the level of compliance of the Philippines were communicated to this country by the Chair of the IOTC in a letter dated 22 March 2011 as regards the level of implementation of IOTC Conservation and Management Measures identified by the CoC in its 8th session in 2011.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(93)</p></td><td><p>According to the information derived from the IOTC Compliance Report produced on 10 March 2012<a>&#160;(<span>13</span>)</a> the Philippines was not compliant with the reporting obligations, namely: Resolution 09/02 on Fleet Development Plan &#8211; not submitted; Resolution 07/02 on the List of Authorised vessels 24 meters in length overall or more &#8211; some mandatory information missing or not up to IOTC standards. As regards VMS, the Philippines was not compliant with the Resolution 10/01 and the Resolution 06/03 because no information on the summary of VMS record and no VMS report on the progress and implementation have been provided in the Report of Implementation. The Philippines was furthermore non-compliant with the Resolution 10/12 on the prohibition on thresher sharks of all the species of the family Alopiidae, and the Resolution 10/06 on the seabirds report and the implementation of mitigation measures south of 25&#176; South, since it has not provided the required information. As regards observers, the Philippines was not compliant with the Resolution 11/04: it has not provided information on the level of coverage as well as the observer reports. The Philippines was also not compliant with the Resolution 01/06 on the statistical document programme, since it has not provided the annual report.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(94)</p></td><td><p>In the IOTC Compliance Report for the Philippines produced on 2 April 2013<a>&#160;(<span>14</span>)</a>, the Compliance Committee stated that the concerns as regards the Philippines compliance identified by the Compliance Report for of 2012 were communicated to Philippines by the Chair of the Commission in a letter dated 26 April 2012. Having reviewed the 2013 Compliance Report for Philippines, the Compliance Committee has identified significant non-compliance issues. The Philippines has not transposed the ban on large scale driftnet into its domestic legislation in line with the Resolution 12/11. It has not implemented an observer programme as required by Resolution 11/04. It has not provided the mandatory report on transhipments carried out at sea, as required by Resolution 12/05. Further, the Philippines has not provided the mandatory VMS report on the progress and implementation, as required by Resolution 06/03. It has also not provided the mandatory report on comparison of export and import, as required by Resolution 01/06.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(95)</p></td><td><p>In addition, according to the information derived from the IOTC Compliance Report produced on 2 April 2013, the Philippines was non-compliant or only partially compliant with the Resolution 10/08 on the list of active vessels and with the Resolution 07/02 on the list of authorised vessels of 24 metres in length overall due to omission of mandatory information, such as: the owner, target species, gross tonnage, the period authorised, the operating port. As regards VMS, similarly to the previous year, the Philippines was not compliant with the Resolution 06/03 and the Resolution 12/13 because no information on the summary of VMS record and implementation have been provided in the Report of Implementation. The Philippines was only partially compliant with the mandatory statistical requirements resulting from the Resolution 10/02. The Philippines was also not compliant with the Resolution 12/05 on transhipments at sea since it has not provided the mandatory information required. As regards observers, the Philippines was not compliant or partially compliant with the Resolution 11/04; in particular it did not provide observer coverage as required due to the fact that the Indian Ocean is a high risk area and did not provide mandatory observer reports as well as the annual report.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(96)</p></td><td><p>Some of the above mentioned problems, in addition to being violations of RFMOs&#8217; rules, are also breaches of general obligations under UNCLOS, as examined hereinafter.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(97)</p></td><td><p>The failure to transpose the ban on large scale driftnet into its domestic legislation in line with the IOTC Resolution 12/11, as described in the recital 94, undermines the ability of the Philippines to fulfil its obligations under Article 118 of the UNCLOS which establish the duty of cooperation among States in the conservation and management of living resources in the areas of the high seas.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(98)</p></td><td><p>Also, as described in the recitals 93 to 97 the Philippines did not comply with the recording and timely reporting requirements both to the IOTC. In particular, it has not submitted to the IOTC information on statistics, fleet development plan, VMS reporting and recording, observer reports and reports on transhipments. Such deficiencies are not in line with Article 119(2) of the UNCLOS which stipulates that available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organisations, whether subregional, regional or global.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(99)</p></td><td><p>Furthermore, the failure to report to IOTC on the summary of VMS record and VMS report as well as the general difficulty of the Philippines authorities to receive the VMS signal of the Philippine flagged vessels when operating in Third Country waters are not in line with Article 62(4)(e) of the UNCLOS with regard to the requirement to request the VMS position report from fishing vessels. Such deficiency is furthermore not in line with point 24(3) of the IPOA IUU which stipulates that States should undertake comprehensive and effective monitoring, control and surveillance of fishing from its commencement, through the point of landing, to final destination, including by implementing a VMS, in accordance with the relevant national, regional or international standards, including the requirement for vessels under their jurisdiction to carry VMS on board.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(100)</p></td><td><p>In addition, pursuant to Article 62(1) of the UNCLOS and relevant rules in the WCPFC Convention (in particular Articles 2, 5, 7, 8) it is a clear obligation of a coastal State to adopt measures compatible to those applying in the region and in the high seas to ensure the long term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilisation. The Philippines legal framework only provides for limited conservation and management measures for all waters under its national jurisdiction. These measures are not compliant with Philippines&#8217; obligations under international law and RFMO rules.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(101)</p></td><td><p>In particular, waters under the jurisdiction of the Philippines are referred to as territorial, archipelagic and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean (bounded to the south and to the east by defined lines), including waters under jurisdiction of the Philippines. As the Philippines considers that WCPFC rules do not fully apply to waters under its jurisdiction, it is not entirely clear what data is collected and reported to WCPFC; this does not cover assessments of all the Philippines fisheries waters. The Philippines, by considering its archipelagic waters to be beyond the scope of application of the WCPFC measures is in breach of these measures.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(102)</p></td><td><p>Furthermore, as identified during the first Commission Mission in 2012, only few conservation measures exist and most of them have very limited effects. The role of Local Governments in introducing conservation measures in municipal waters also remains unclear. There are 915 Local Governments; they appear to act independently from BFAR, which cannot dictate to them policies and rules in matters pertaining to their jurisdictions, i.e. municipal waters.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(103)</p></td><td><p>This situation leads to a lack of clarity and transparency which, in addition to the lack of transparency of the Philippines laws and procedures in relation to registration and licensing of fishing vessels, as explained in Sections 3(1) and 3(2) of the Decision, compromises and undermines the possibility for effective implementation of efficient conservation and management of the fisheries resources of the Philippines.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(104)</p></td><td><p>The performance of the Philippines in implementing international instruments is not in accordance with the recommendations in point 10 of the IPOA IUU which advises States, as a matter of priority, to ratify, accept or accede to the UNFSA. The Commission considers that, in case of the Philippines, which has a significant fleet of fishing vessels engaged in fishing operations concerning highly migratory species (mainly tuna in the ICCAT, IOTC and WCPFC area), this recommendation is of particular relevance.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(105)</p></td><td><p>In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that the Philippines has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.</p></td></tr></tbody></table>
3.4. Specific constraints of developing countries
<table><col/><col/><tbody><tr><td><p>(106)</p></td><td><p>It is recalled that, according to the United Nations Human Development Index<a>&#160;(<span>15</span>)</a>, the Philippines is considered as a medium human development country (114th in 186 countries in 2012). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 where the Philippines is listed in the category of lower middle income countries and territories, as well as by the information from OECD/DAC of 1 January 2013 for reporting on 2012<a>&#160;(<span>16</span>)</a>.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(107)</p></td><td><p>It should be noted that the notification of the Philippines as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 15 January 2010. The Philippines confirmed, as required by Article 20(1) of the IUU Regulation, that it has national arrangements in place for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(108)</p></td><td><p>The Commission informed the Philippines of the various shortcomings it detected during its first mission conducted in January 2012. Few months later, during its second mission in June 2012, the Commission found the situation unchanged. The Commission sought to achieve cooperation with the Philippine authorities and progress in corrective actions in respect of the detected shortcomings. The Philippines has failed to take sufficient corrective actions and to achieve positive developments in correcting the established shortcomings.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(109)</p></td><td><p>In is also pertinent to note that the Union has already funded a specific technical assistance action in the Philippines with respect to the fight against IUU fishing in 2011<a>&#160;(<span>17</span>)</a>.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(110)</p></td><td><p>In addition, on 22-26 July 2013 the Commission, with the assistance of the European Fisheries Control Agency, and at the request of the Philippines authorities, organised a capacity building workshop in Manila, focusing on the port state measures and risk analysis.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(111)</p></td><td><p>The Commission has taken into consideration the development constraints of the Philippines and offered adequate time to the Philippines to implement actions in order to remedy its non-compliance with its obligations under international law in a coherent, effective and non-detrimental way since 2012.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(112)</p></td><td><p>In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission, as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of the Philippines fisheries governance may be impaired by its level of overall development. However, account taken of the nature of the established shortcomings of the Philippines, the assistance provided by the Union and actions taken to rectify the situation, no corroborating evidence could be established to suggest that the failure of the Philippines to discharge the duties incumbent upon it under international law is the result of lacking development. The development level of the Philippines cannot excuse or justify the overall performance of the Philippines as flag and coastal State with respect to fisheries, and the insufficiency of its action to prevent, deter and eliminate IUU fishing and to ensure respective efficient monitoring, control and surveillance of fishing activities in waters under its jurisdiction.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(113)</p></td><td><p>In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of the Philippines with respect to fisheries are not impaired by its level of development.</p></td></tr></tbody></table>
4. CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION OF NON-COOPERATING THIRD COUNTRIES
<table><col/><col/><tbody><tr><td><p>(114)</p></td><td><p>In view of the conclusions reached above with regard to the failure of the Philippines to discharge the duties incumbent upon it under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, this country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified as a country that the Commission considers to be non-cooperating in fighting IUU fishing.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(115)</p></td><td><p>In accordance with Article 32(1) of the IUU Regulation, the Commission should notify the Philippines of the possibility of it being identified as non-cooperating Third Country. The Commission should also take all the demarches set out in Article 32 of the IUU Regulation with respect to the Philippines. In the interest of sound administration, a period should be fixed within which that countries may respond in writing to the notification and rectify the situation.</p></td></tr></tbody></table>
<table><col/><col/><tbody><tr><td><p>(116)</p></td><td><p>Furthermore, the notification to the Philippines of the possibility of being identified as a country the Commission considers to be non-cooperating for the purposes of this Decision does neither preclude nor automatically entail any subsequent step taken by the Commission or the Council for the purpose of the identification and the establishment of a list of non-cooperating countries,</p></td></tr></tbody></table>
HAS DECIDED AS FOLLOWS:
Sole Article
The Republic of the Philippines is hereby notified of the possibility of being identified as a Third Country that the Commission considers as non-cooperating Third Country in fighting illegal, unreported and unregulated fishing.
Done at Brussels, 10 June 2014.
For the Commission
Maria DAMANAKI
Member of the Commission
( 1 ) OJ L 286, 29.10.2008, p. 1 .
( 2 ) As referred to by the Department of Agriculture – Bureau of Fisheries and Aquatic Resources, Philippine Fisheries Profile 2011, http://www.bfar.da.gov.ph/pages/AboutUs/maintabs/publications/pdf%20files/2011%20Fisheries%20Profile%20(Final)%20(4).pdf
( 3 ) http://www.wcpfc.int/system/files/AR-CCM-19-Philippines-Rev-2.pdf
http://www.wcpfc.int/system/files/AR-CCM-19-Philippines-Part-1.pdf
<note>
( 4 ) OJ C 346, 27.11.2013, p. 26 .
( 5 ) See footnote 2
( 6 ) See footnote 2.
( 7 ) Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, done at Honolulu, 5 September 2000 (http://www.wcpfc.int/doc/convention-conservation-and-management-highly-migratory-fish-stocks-western-and-central-pacific).
( 8 ) Information retrieved from http://hdr.undp.org/en/statistics
( 9 ) OJ L 378, 27.12.2006, p. 41 .
( 10 ) DAC List of ODA Recipients (http://www.oecd.org/dac/stats/daclistofodarecipients.htm)
( 11 ) Accompanying developing countries in complying with the Implementation of Regulation (EC) No 1005/2008 on Illegal, Unreported and Unregulated (IUU) Fishing, EuropeAid/129609/C/SER/Multi.
( 12 ) IOTC Compliance Report for the Philippines by the Compliance Committee, 9th Session of the CoC, Report produced on 10 March 2012, IOTC-2012-CoC09-CR22; CoC09-IR22.
( 13 ) IOTC Compliance Report of 10/03/2012, IOTC-2012-CoC09-CR22_Rev2[E].
( 14 ) IOTC Compliance Report of 02/04/2013, IOTC-2013-CoC10-CR22[E].
( 15 ) See footnote 8.
( 16 ) See footnote 10.
( 17 ) See footnote 11.
</note>