# EUR-Lex - 52013PC0819 - EN

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# 52013PC0819

**Proposal for a COUNCIL IMPLEMENTING DECISION establishing a list of non-cooperating third countries in fighting IUU fishing pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing /* COM/2013/0819 final - 2013/0406 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Grounds for and objectives of the
proposal

This proposal concerns the application of
Council Regulation (EC) No 1005/2008 of 29 September 2008 on establishing a
Community system to prevent, deter and eliminate illegal, unreported and
unregulated fishing (IUU 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]
(the IUU Regulation).

General context

This proposal is made in the context of the
implementation of the IUU Regulation and is the result of investigation and
dialogue procedures which were carried out in line with the substantive and
procedural requirements laid out in the IUU Regulation foreseeing inter alia
that all countries should discharge the duties incumbent upon them under
international law as flag, port, coastal or market State to prevent, deter and
eliminate IUU fishing.

Existing provisions in the area of the
proposal

Commission Decision of 15 November 2012 (OJ
C 354 17.11.2012, p.1-47) on notifying the third countries that the Commission
considers as possible of being identified as non-cooperating countries pursuant
to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent,
deter and eliminate illegal, unreported and unregulated fishing.

Commission Implementing Decision XXXX (OJ C
XXXX, XX.XX.2013, p ...) on identifying the third countries that the Commission
considers 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.

Consistency with other policies and
objectives of the Union

Not applicable.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Consultation of interested parties

Interested parties concerned by the
proceeding have had the possibility to defend their interests during the
investigation and dialogue procedures, in line with the provisions of the IUU
Regulation.

Collection and use of expertise

There was no need for external expertise.

Impact assessment

This proposal is the result of the
implementation of the IUU Regulation.

The IUU Regulation does not contain
provisions for a general impact assessment but contains an exhaustive list of
conditions that have to be assessed.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Summary of the proposed action

On 15 November 2012 the Commission, by
Commission Decision, notified eight third countries (Belize, the Kingdom
of Cambodia, the Republic of Fiji, the Republic of Guinea, the Republic of
Panama, the Democratic Socialist Republic of Sri Lanka, the Togolese Republic
and the Republic of Vanuatu) that the Commission considers as possible of
being identified as non-cooperating countries pursuant to the IUU
Regulation.

The Commission initiated Démarches in
respect of the eight countries. These démarches consisted inter alia of
actions providing reasons of its actions, opportunity for the countries to
respond and refute, right to ask for and provide additional information,
proposed actions plans to remedy the situation as well as adequate time to
answer and reasonable time to remedy the situation.

On XX XXXX 2013 the Commission, by
Commission Implementing Decision, identified Belize, the Kingdom of Cambodia, the Republic of Guinea as third countries that the
Commission considers as non-cooperating third countries pursuant to the
IUU Regulation.

The attached proposal for a Council Implementing
Decision is based on the findings which have confirmed that Belize, the Kingdom
of Cambodia and the Republic of Guinea have failed to discharge the duties
incumbent upon them under international law as flag, port, coastal or market
States.

It is therefore proposed that the Council
adopts the attached proposal for a Decision.

Legal basis

Council Regulation (EC) No 1005/2008 of 29
September 2008 on establishing a Community system to prevent, deter and
eliminate IUU fishing.

Subsidiarity principle

The proposal falls under the exclusive
competence of the European Union. The subsidiarity principle therefore does not
apply.

Proportionality principle

The proposal complies with the
proportionality principle for the following reasons:

The form of action is described in the IUU Regulation
and leaves no scope for national decision.

Indication of how financial and
administrative burden falling upon the Union, national governments, regional
and local authorities, economic operators and citizens is minimised and
proportionate to the objective of the proposal is not applicable.

Choice of instruments

Proposed instruments: decision.

Other means would not be adequate for the
following reason:

Other means would not be adequate because
the IUU Regulation does not provide for alternative options.

4.           BUDGETARY IMPLICATION

The proposal has no implication for the
Union budget.

2013/0406 (NLE)

Proposal for a

COUNCIL IMPLEMENTING DECISION

establishing a list of non-cooperating
third countries in fighting IUU fishing pursuant to Council Regulation (EC) No
1005/2008 establishing a Community system to prevent, deter and eliminate
illegal, unreported and unregulated fishing

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union,

Having regard to Council Regulation (EC) No
1005/2008 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[2],
and in particular Article 33 thereof,

Having regard to the proposal submitted by
the European Commission (the Commission),

Whereas:

1.           INTRODUCTION

(1)       Council Regulation (EC) No
1005/2008 (the IUU Regulation) establishes a Union system to prevent, deter and
eliminate illegal, unreported and unregulated (IUU) fishing.

(2)       Chapter VI of the IUU
Regulation lays down the procedure with respect to the identification of
non-cooperating third countries, démarches 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.

(3)       In accordance with Article
32 of the IUU Regulation, with the Commission Decision of 15 November 2012, the
Commission notified eight third countries that the Commission considered as
possible of being identified as non-cooperating countries pursuant to Council
Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter
and eliminate illegal, unreported and unregulated fishing.

(4)       In its Decision of 15
November 2012 the Commission included the information concerning the essential
facts and considerations underlying such identification.

(5)       On 15 November 2012 the Commission
notified the eight third countries with separate letters of the fact that it
was considering the possibility of identifying them as non-cooperating third
countries.

(6)       The Commission
highlighted, in these letters, that in order to avoid being identified and
proposed for formal listing as a non-cooperating third country as foreseen in
Articles 31 and 33 of the IUU Regulation, the third countries concerned were
invited to establish, in close cooperation, with the Commission an action plan
to rectify the shortcomings identified in the Commission Decision of 15
November 2012.

(7)       As a consequence, the
Commission invited the eight third countries concerned: (1) to take all
necessary measures to implement the actions contained in the action plans
suggested by the Commission; (2) to assess the implementation of the actions
contained in the action plans suggested by the Commission; (3) to send every
six months detailed reports to the Commission assessing the implementation of
each action as regards, inter alia, their individual and/or overall
effectiveness in ensuring a fully compliant fisheries control system.

(8)       The eight third countries
concerned were given the opportunity to respond in writing on issues explicitly
indicated in the Commission Decision of 15 November 2012 as well as on other
relevant information, allowing them to submit evidence in order to refute or
complete the facts invoked in the Decision of 15 November 2012 or to adopt, as
appropriate, a plan of action to improve and measures taken to rectify the
situation. The eight countries were guaranteed of their right to ask for, or to
provide, additional information.

(9)       On 15 November 2012, the
Commission opened a process of dialogue with the eight third countries and
highlighted that it considers a period of 6 months as being in principle
sufficient for reaching an agreement on this matter.

(10)     The Commission continued to
seek and verify all information it deemed necessary. The oral and written
comments submitted by the eight countries following the Commission Decision of
15 November 2012 were considered and, taken into account. The eight countries
were kept informed either orally or in writing on the Commission's
considerations.

(11)     Commission Decision xx XXXX
2013 identifies Belize, the Kingdom of Cambodia and the Republic of Guinea as non-cooperating third countries in fighting IUU fishing. It provides the reasons for
which the Commission considers that these three countries fail to discharge
their duties under international law as flag, port, coastal or market State to
take action, prevent, deter and eliminate IUU fishing in accordance with
Article 31 of the IUU regulation.

(12)     The Council Implementing Decision
placing Belize, the Kingdom of Cambodia and the Republic of Guinea on the list
of non-cooperating third countries in fighting IUU fishing is thus taken in the
context of the implementation of the IUU Regulation and is the result of
investigation and dialogue procedures which were carried out in line with the
substantive and procedural requirements laid out in the IUU Regulation. Those
investigation and dialogue procedures including the correspondence exchanged
and the meetings held, as well as the Commission Decision of 15 November 2012
and Commission decision xx XXXX are at the basis of the present Decision and
form integral part of it. This Implementing Decision placing Belize, the Kingdom of Cambodia and the Republic of Guinea on the list of non-cooperating third
countries in fighting IUU fishing should entail the consequences stated in
Article 38 of the IUU Regulation.

(13)     Pursuant to Article 34 (1)
of the IUU Regulation the Council, acting by qualified majority on a proposal
from the Commission, shall remove a third country from the list of
non-cooperating third countries if the third country concerned demonstrates
that the situation that warranted its listing has been rectified. A removal
decision shall also take into consideration whether the identified third
countries concerned have taken concrete measures capable of achieving a lasting
improvement of this situation.

2.           PROCEDURE WITH RESPECT TO BELIZE

(14)     On 15 November 2012, the Commission
notified Belize with a Commission Decision pursuant to the provisions of
Article 32 of the IUU Regulation that it considered the possibility of
identifying Belize as a non-cooperating third country[3] and invited Belize to establish in close cooperation with its services an action plan to rectify the
shortcomings identified in the Commission Decision. During the period from
December 2012 to August 2013 Belize made written submissions making its views
known and met with the Commission to discuss points pertaining to the matter.
The Commission provided in writing to Belize relevant information. The
Commission continued to seek and verify all information it deemed necessary.
The oral and written comments submitted by Belize following the Commission
Decision of 15 November 2012 were considered and taken into account, while Belize was kept informed either orally or in writing on the Commission's considerations.
The Commission took the view that the areas of concern and shortcomings as
described in the Commission Decision of 15 November 2012 have not been
addressed sufficiently by Belize. Moreover, the Commission concluded that the
measures suggested in the accompanying action plan have not been fully
implemented either.

3.           IDENTIFICATION OF BELIZE AS A NON-COOPERATING THIRD COUNTRY

(15)     In the
Commission Decision of 15 November 2012 the Commission
analysed the duties of Belize and evaluated its compliance with its
international obligations 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.

(16)     Pursuant to Article 31(3)
of the IUU Regulation the Commission reviewed the compliance of Belize with its
international obligations as flag, port, coastal or market State in line with
the findings in the Commission Decision of 15 November 2012 and with relevant
information provided thereon by Belize, with the proposed plan of action as
well as with the measures taken to rectify the situation.

(17)     The main shortcomings
identified by the Commission in the suggested action plan were related to several
failures to implement international law obligations, linked in particular to
the adoption of an adequate legal framework, the lack of an adequate and
efficient monitoring, lack of a control and inspection scheme, lack of a
deterrent sanctioning system, and of a proper implementation of the catch
certification scheme. The identified shortcomings relate, more generally to the
compliance with international obligations including Regional Fisheries
Management Organisations (RFMOs) recommendations and resolutions and conditions
for registration of vessels according to international law. Lack of compliance
with recommendations and resolutions from relevant bodies such as the
International Plan of Action against Illegal, Unreported and Unregulated
fishing of the United Nations (IPOA-UN) has also been identified. However, the
lack of compliance with non-binding recommendations and resolutions has been
considered only as supporting evidence and not as a basis for the
identification.

(18)     In the Commission Implementing
Decision of xx XXXX 2013 the Commission identified Belize as third country
considered as non-cooperating third country pursuant to Council Regulation (EC)
No 1005/2008 establishing a Community system to prevent, deter and eliminate
illegal, unreported and unregulated fishing.

(19)     With respect to the
possible constraints of Belize as developing country it is noted that the
development status and overall performance of Belize with respect to fisheries
are not impaired by its level of development.

(20)     In the
view of all the above decisions, and of the dialogue process with Belize
entertained by the Commission and its outcome, it can be concluded that the actions undertaken by Belize in light of its duties as flag State
are insufficient to comply with the provisions of Articles 91, 94, 117 118 of United
Nations Convention on the Law of the Sea (UNCLOS), Articles 18, 19, 20 of United
Nations Fish Stocks Agreement (UNSFA) and Article II(8) of FAO Compliance
Agreement.

(21)     Therefore,
  Belize has failed to discharge its duties under international law as flag State to take action, prevent, deter and eliminate IUU
fishing and should be included in the Union list of
non-cooperating third countries.

4.           PROCEDURE WITH RESPECT TO THE KINGDOM OF CAMBODIA

(22)     On
15 November 2012, the Commission notified the Kingdom of Cambodia (Cambodia) with
a Commission Decision pursuant to the provisions of Article 32 of the IUU
Regulation that it considered the possibility of identifying Cambodia as a
non-cooperating third country[4] and
invited Cambodia to establish in close cooperation with its services an action
plan to rectify the shortcomings identified in the Commission Decision. During
the period from December 2012 to June 2013 Cambodia made written submissions
making its views known and met with the Commission to discuss points pertaining
to the matter in subject. The Commission provided in writing to Cambodia relevant information. The Commission continued to seek and verify all information
it deemed necessary. The oral and written comments submitted by Cambodia following the Commission Decision of 15 November 2012 were considered and taken into
account, while Cambodia was kept informed either orally or in writing on the
Commission's considerations. The Commission took the view that the areas of
concern and shortcomings as described in the Commission Decision of 15 November
2012 have not been addressed sufficiently by Cambodia. Moreover, the Commission
concluded that the measures suggested in the accompanying action plan have not
been fully implemented either.

5.           IDENTIFICATION OF CAMBODIA AS A NON-COOPERATING THIRD COUNTRY

(23)     In the
Commission Decision of 15 November 2012 the Commission
analysed the duties of Cambodia and evaluated its compliance with its
international obligations 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.

(24)     Pursuant to Article 31(3)
of the IUU Regulation the Commission reviewed the compliance of Cambodia with
its international obligations as flag, port, coastal or market State in line
with the findings in the Commission Decision of 15 November 2012 and with the
proposed plan of action, as further elaborated with the relevant information
provided by Cambodia.

(25)     The main shortcomings
identified by the Commission in the suggested action plan were related to the
failures to implement international law obligations, linked in particular to
the adoption of an adequate legal framework, an adequate and efficient
monitoring, control and inspection scheme, a deterrent sanctioning system. The
identified shortcomings relate, more generally to the compliance with
international obligations and conditions for registration of vessels according
to international law. Lack of compliance with recommendations and resolutions
from relevant bodies such as the IPOA –UN has also been identified. However,
the lack of compliance with non-binding recommendations and resolutions has
been considered only as supporting evidence and not as a basis for the
identification.

(26)     In the Commission
Implementing Decision of xx XXXX 2013 the Commission identified Cambodia as third country considered as non-cooperating third country pursuant to Council
Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter
and eliminate illegal, unreported and unregulated fishing.

(27)     With respect to the
possible constraints of Cambodia as developing country it is noted that the
development status and overall performance of Cambodia with respect to
fisheries are not impaired by its level of development.

(28)     The actions undertaken by Cambodia in light of its duties as flag
State, are insufficient to comply with the provisions of Articles 91 and 94 of the
UNCLOS. It is recalled that it is immaterial whether Cambodia has actually
ratified UNCLOS since the provisions of UNCLOS on the navigation in the High
Seas (Articles 86 to 115 of UNCLOS) have been recognised as customary
international law. These provisions indeed codify pre-existing rules of
customary international law and take over almost literally the wording of the
Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, which Cambodia has respectively ratified and acceded to.

(29)     In the
view of all the above decisions, and of the dialogue process with Cambodia entertained by the Commission and its outcome, it can be concluded that the actions undertaken by Cambodia in light of its duties as flag
State are insufficient to comply with the provisions of Articles 91 and 94 of the
UNCLOS.

(30)     Therefore,
  Cambodia has failed to discharge its duties under international law as flag State to take action, prevent, deter and eliminate IUU
fishing and should be included in the Union list of
non-cooperating third countries.

6.           PROCEDURE WITH RESPECT TO THE REPUBLIC OF GUINEA

(31)     On 15 November 2012, the Commission
notified the Republic of Guinea (Guinea) with a Commission Decision pursuant to
the provisions of Article 32 of the IUU Regulation that it considered the
possibility of identifying Guinea as a non-cooperating third country[5] and invited Guinea to establish
in close cooperation with its services an action plan to rectify the
shortcomings identified in the Commission Decision. During the period from
December 2012 to July 2013 Guinea made written submissions making its views
known and met with the Commission to discuss points pertaining to the matter in
subject. The Commission provided in writing to Guinea relevant information. The
Commission continued to seek and verify all information it deemed necessary.
The oral and written comments submitted by Guinea following the Commission
Decision of 15 November 2012 were considered and taken into account, while Guinea was kept informed either orally or in writing on the Commission's considerations.
The Commission took the view that the areas of concern and shortcomings as
described in the Commission Decision of 15 November 2012 have not been
addressed sufficiently by Guinea. Moreover, the Commission concluded that the
measures suggested in the accompanying action plan have not been fully
implemented either.

7.           IDENTIFICATION OF GUINEA AS A NON-COOPERATING THIRD COUNTRY

(32)     In the
Commission Decision of 15 November 2012 the Commission
analysed the duties of Guinea and evaluated its compliance with its
international obligations 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.

(33)     Pursuant to Article 31(3)
of the IUU Regulation the Commission reviewed the compliance of Guinea with its
international obligations as flag, port, coastal or market State in line with
the findings in the Commission Decision of 15 November 2012 and with Guinea's
relevant information provided thereon, with the proposed plan of action as well
as with the measures taken to rectify the situation.

(34)     The main shortcomings
identified by the Commission in the suggested action plan were related to
reforms still dues in order to ensure a sufficiently adequate and efficient
monitoring of its fishing fleet, an effective implementation of national law
and regulations on fisheries, enforcement of the rules by pursuing and
sanctioning the IUU fishing activities detected, reinforcement of the means for
inspection and surveillance, deterrent sanctioning system, fisheries policy
consistent with administrative capacity in terms of control and surveillance.
The identified shortcomings relate, more generally to the compliance with
international obligations including RFMOs recommendations and resolutions and
conditions for registration of vessels according to international law. Lack of
compliance with recommendations and resolutions from relevant bodies such as the
IPOA – UN has also been identified. However, the lack of compliance with
non-binding recommendations and resolutions has been considered only as
supporting evidence and not as a basis for the identification.

(35)     In the Commission
Implementing Decision of xx XXXX 2013 the Commission identified Guinea as third country considered as non-cooperating third country pursuant to Council
Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter
and eliminate illegal, unreported and unregulated fishing.

(36)     With respect to the
possible constraints of Guinea as developing country it is noted that the
development status of Guinea may be impaired by its level of development.
However, account taken of the nature of the established shortcomings of Guinea,
the assistance provided by the EU and the Member States, and the actions taken
to rectify the situation, the development level of that country cannot explain
the overall performance of Guinea as flag or coastal State with respect to
fisheries and the insufficiency of its action to prevent, deter and eliminate
IUU fishing.

(37)     In the
view of all the above decisions, and of the dialogue process with Guinea
entertained by the Commission and its outcome, it can be concluded that the actions undertaken by Guinea in light of its duties as flag and
coastal State are insufficient to comply with the provisions of Articles 61,
62, 94, 117 and 118 of the UNCLOS and Articles 18, 19 and 20 of the UNFSA.

(38)     Therefore,
  Guinea has failed to discharge its duties under international law as flag and coastal State to take action, prevent, deter and
eliminate IUU fishing and should be included in the Union
list of non-cooperating third countries.

8.           ESTABLISHMENT OF A LIST OF NON
COOPERATING THIRD COUNTRIES

(39)     In view of the conclusions
reached above with regard to Belize, Cambodia and Guinea, those countries
should be included in a list of non-cooperating third countries to be
established containing in accordance with Article 33 of the IUU Regulation.

(40)     The action in respect of Belize, Cambodia and Guinea in the form of measures that shall apply are listed in Article 38 of
the IUU Regulation. The prohibition of importation covers all stocks and
species, as defined in Article 2(8) of the IUU Regulation, since the
identification is not justified by the lack of appropriate measures adopted in
relation to IUU fishing affecting a given stock or species. In line with the
definition in Article 2(11) of the IUU Regulation importation means the
introduction of fishery products into the territory of the Union, including for
transhipment purposes at ports in its territory.

(41)     It is noted that IUU
fishing inter alia depletes fish stocks, destroys marine habitats,
undermines the conservation and sustainable use of
marine resources, distorts competition, endangers food
security, puts honest fishermen at an unfair disadvantage and weakens coastal
communities. In view of the magnitude of the problems related to IUU fishing it
is considered necessary for the Union to implement expeditiously the actions in
respect to Belize, Cambodia and Guinea as non-cooperating countries. In the
light of the foregoing the present Decision should enter into force on the day
following that of its publication in the Official Journal of the European
Union.

(42)     If Belize, Cambodia and Guinea demonstrate that the situation that warranted its listing has been
rectified, the Council, acting by qualified majority on a proposal from the
Commission, shall remove a third country from the list of non-cooperating third
countries in line with Article 34 (1) of the IUU Regulation. A removal decision
shall also take into consideration whether the Belize, Cambodia and Guinea have taken concrete measures capable of achieving a lasting improvement of this
situation.

DECIDES AS FOLLOWS:

Article 1

The Union list of non-cooperating third
countries is established in the Annex to this decision.

Article 2

This Decision shall enter into force on the
day following that of its publication in the Official Journal of the European
Union.

Done at Brussels,

For
the Council

The
President

ANNEX

List of non-cooperating third countries in fighting Illegal
Unreported and Unregulated (“IUU”) fishing

Belize

Kingdom of Cambodia

Republic of Guinea

[1]               OJ L 286, 29.10.2008, p. 1.

[2]               OJ L 286, 29.10.2008, p. 1.

[3]               Letter to the Minister of Agriculture and Fisheries
of Belize of 15.11.2012.

[4]               Letter to the Minister of Agriculture, Forestry and
Fisheries of the Kingdom of Cambodia of 15.11.2012.

[5]               Letter to the Minister of Fisheries and Aquaculture
of Guinea of 15.11.2012.