# EUR-Lex - 52013PC0599 - EN

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# 52013PC0599

**Proposal for a COUNCIL DECISION Amending Council Decision 2007/641/EC, concerning the republic of Fiji Islands and extending the period of application thereof /* COM/2013/0599 final - 2013/0289 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           The military take-over in
December 2006 led to consultations under Article 96 of the revised Cotonou
Agreement. These resulted in April 2007 in agreed commitments concerning human
rights, democratic principles and the rule of law. On 1 October 2007 the
Council, in its Decision 2007/641/EC decided on appropriate measures for Fiji to establish a degree of parallelism between Fiji’s respect for the agreed commitments and
development cooperation.

2.           On 10 April 2009, Fiji’s President abrogated the Constitution, removed all judges and declared that elections
would take place at the latest in September 2014. In doing so, Fiji unilaterally broke key commitments it had given to the EU in April 2007. This happened
the day after the Appeals Court had ruled the appointment of the military-led
government following the coup in 2006 to be illegal. Fiji was also placed under
a state of emergency and freedom of expression substantially curtailed.

3.           Following these negative
developments, the Council decided, on 24 September 2009, in its Decision
2009/735/EC, to extend until 31 March 2010 the validity of the appropriate measures
laid down in Decision 2007/641/EC, which was due to expire on 1 October 2009.
Due to further delays in implementing the commitments agreed with the EU the
Council decided, on 29 March 2010 in its Decision 2010/208/EU, to extend until
1 October 2010, the validity of the appropriate measures for Fiji
established in Decision 2007/641/EC, and then again on 27 September 2010 in its
Decision 2010/589/EU until 31 March 2011, on 31 March 2011 in its Decision
2011/219/EU until 30 September 2011, and on 26 September 2011 in its Decision
2011/637/EU until 30 September 2012.

4.           Following
some positive developments in early 2012, i.e. the lifting of the Public
Emergency Regulations on 7 January 2012 and the launch on 9 March 2012 of a
political process with a view to having a new Constitution by March 2013 and
the re-establishment of a constitutional democracy in the wake of new parliamentary
elections by September 2014, the Council decided on 24 September 2012 in its
Decision No 2012/523/EU to open prospective reengagement toward the programming
of future development assistance whilst extending the validity of the
appropriate measures until 30 September 2013.

5.           The main source of funding
for Fiji is the Accompanying Measures for Former Sugar Protocol Countries
(AMSP). Assistance is channelled through non-governmental bodies (regional
organisations and NGOs) to cushion the economic and social impacts of the sugar
sector restructuring by supporting a diversified market-driven agriculture,
promoting alternative livelihoods and income generating activities for the worst
affected populations and alleviating risks to natural disasters. Of the total
allocation of EUR 60 million under MIP 2008-10 of the 10th EDF, only
EUR 8 million were committed for the Social Mitigation programme (AAP 2010).
EUR 52 million have been lost due to the lack of progress in Fiji's return to democratic rule. Another allocation of EUR 49 million was approved under
the 10th EDF for MIP 2011-13, EUR 17 million were committed in 2011
and 2012 for the Key Services to Agriculture and Alternative Livelihood
programmes and EUR 31 million are to be committed before the end of 2013 for
Support for the Sugar Industry.

6.           A Constitution Commission
was established in June 2012. After extensive public consultations, it
finalised a draft Constitution in December 2012. The police then confiscated
the draft Constitution and the Prime Minister tasked the government's legal
team with drafting a new Constitution to be reviewed and completed by a ConstituentAassembly
by end March 2013. In mid-January 2013 a new controversial ecree on (re-) registration
of political parties was published introducing a number of restrictions many of
which are not in line with customary international law. The decree was amended
in mid-February to introduce even further restrictions. On 21 March in an
address to the nation, the Prime Minister presented the new draft Consitution
to the people, and informed the country that the Constituent Assembly would not
be formed, due to the lack of registration of political parties under the new decree.
Instead the people were invited to convey directly, by diferent means, their
comments on the draft Constitution. Currently the government is finalising the
draft after having received some 1100 comments. It is still not clear to what
extent the public comments will be taken on board in the new Constitution.

7.           Fiji is embarking on a
historical process of new democratisation. The forthcoming steps should lead to
a transparent, credible and participatory electoral process and to democratic
elections. The milestones towards achieving this have been shifting, which is
why the Commission proposes to the Council to extend the current policy and
appropriate measures by 18 months with a possibility at any stage to review the
appropriate measures by way of a new Council decision.

8.           With a view to encouraging Fiji to continue on its path towards the restoration
of democracy, rule of law and full respect for human rights and fundamental
freedoms, and with the final aim of normalising the situation with Fiji, the EU
should step up political engagement with Fiji, and resume political dialogue
with the aim to revise and update the commitments agreed with the Republic of
Fiji in 2007 in order to delete obsolete items and ensure commitment
requirements are in line with the new Constitution. An important part of this
dialogue would be conducted during the crucial period in Fiji's democratisation process as the country moves towards the elections to be held at the
latest in September 2014.

9.           It is proposed to notify
this Decision to the interim Government of Fiji, on the basis of the attached
draft letter to President Nailatikau, and to inform him

· 
a) that the EU looks forward to the next steps
leading to a transparent, participatory and credible electoral process,to free
and fair elections, and to Fiji returning to democratic rule;

· 
b) that the progress made towards a return to
constitutional rule will continue to guide the EU in its upcoming decisions on
development cooperation, and that in this spirit the EU is willing to continue
to engage in preparation for the 11th EDF programming process, and
to notify in due course an indicative national financial allocation, while
finalisation, signature and implementation of 11th EDF programming
documents will be envisaged with the democratically elected government and

· 
c) that the EU proposes to enhance political
dialogue, with a view to reviewing the agreed commitments of 2007 and to adapting
the appropriate measures accordingly, with the ultimate goal of normalising
relationships with Fiji.

10.         The changes to the
appropriate measures will be a consequence of the revision and updating of the
2007 agreed commitments by way of the political dialogue and will reflect the
present political and legal context of Fiji. The programming discussions for
the 11th EDF can continue in line with the Council Decision of 2012
and the notification of Fiji's indicative financing allocation, once the
necessary decisions on the establishment of the next EDF so allow.

Conclusion

In the light of the foregoing, the Council
is requested to adopt the attached draft proposal for a Council Decision
amending and extending the period of application of the appropriate measures for
the Republic of Fiji.

2013/0289 (NLE)

Proposal for a

COUNCIL DECISION

Amending Council Decision 2007/641/EC,
concerning the republic of Fiji Islands and extending the period of application
thereof

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the Partnership Agreement
between the members of the African, Caribbean and Pacific Group of States, of
the one part, and the European Community and its Member States, of the other
part, signed in Cotonou on 23 June 2000[1],
as revised at Ouagadougou, Burkina Faso on 22 June 2010[2] (hereinafter referred to as the
Cotonou Agreement), and in particular Article 96 thereof,

Having regard to the Internal Agreement
between the representatives of the governments of the Member States, meeting
within the Council, on measures to be taken and procedures to be followed for
the implementation of the Cotonou Agreement[3],
and in particular Article 3 thereof,

Having regard 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 (the
Development Cooperation Instrument)[4],
and in particular Article 37 thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       Council Decision
2007/641/EC[5]
was adopted to take appropriate measures following the violation of the
essential elements referred to in Article 9 of the Cotonou Agreement, and the
values referred to in Article 3 of the Development Cooperation Instrument.

(2)       Those measures have been
extended by Council Decision 2009/735/EC[6],
and subsequently by Council Decisions 2010/208/EU[7], 2010/589/EU[8], 2011/219/EU[9], 2011/637/EU[10], and 2012/523/EU[11], since not only has the
Republic of Fiji yet to implement important commitments it made in
consultations held in April 2007 concerning essential elements of the Cotonou
Agreement, but there had also been important regressive developments concerning
a number of these commitments.

(3)       There have been
considerable developments since April 2007 and the commitments agreed with the
Republic of Fiji Islands will need to be revised accordingly. Political
dialogue will be the context for reviewing the commitments with the light of
the current legal situation. Prospective reengagement towards the programming
of future development assistance should continue.

(4)       Decision 2007/641/EC
expires on 30 September 2013. It is appropriate to update its content and
to extend its validity accordingly.

(5)       The European Union will engage in a Political Dialogue in order to review and update
the 2007 Agreed Commitments and adapt the appropriate measures accordingly.

HAS ADOPTED THIS DECISION:

Article 1

Decision 2007/641/EC is hereby amended as
follows:

In Article 3, the second paragraph is
replaced by the following :

‘It shall expire on 31 March 2015. It shall
be reviewed regularly at least once every six months";

Article 2

The letter in the Annex to this Decision
shall be addressed to the Republic of Fiji.

Article 3

This
Decision shall enter into force on the day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX

Draft letter        
H.E. Ratu Epeli NAILATIKAU

President of the Republic of Fiji

Suva

Republic of Fiji 
Your Excellency,

The European Union (EU)
attaches great importance to the provisions of Article 9 of the Cotonou
Agreement and Article 3 of the Development Cooperation Instrument. The ACP-EU
partnership is founded on respect for human rights, democratic principles and
the rule of law, which form the essential elements of the Cotonou Agreement,
and are the basis of our relations.

Six years have elapsed
since the EU took a decision on the appropriate measures following the military
coup of 2006, and since a set of commitments were agreed with Fiji.

The EU notes that that
since 2007 some of the agreed commitments have become outdated and some are in
need of revision in the light of Fiji’s new legal framework. In order to have
an appropriate basis for assessing Fiji's reform progress, we need to revise
these commitments together, taking into account the current situation and the
legal framework.

The EU has therefore
decided to include in its new decision on appropriate measures a requirement that
the EU engage with Fiji in an enhanced political dialogue under Article 8 of
the Cotonou Agreement. This will be with a view to revise together the agreed
commitments of 2007 and to adapt the appropriate measures (annexed to this
letter) accordingly as necessary steps towards ensuring respect for human
rights, the restoration of democracy and respect for the rule of law, until
both parties conclude that the enhanced nature of the dialogue has served its
purpose.

As some restrictions on
certain human rights and fundamental freedoms remain in Fiji and in light of the necessary revision of the agreed commitments, the EU has decided
to extend the appropriate measures by 18 months, until 31 March 2015. This will
provide for the necessary flexibility and will give both the EU and Fiji the time they need to agree on the commitments, to adapt the appropriate measures
accordingly, and for the government to hold its elections planned for September
2014.

The EU will monitor the
progress made towards a return to constitutional rule and this will continue to
guide our upcoming decisions on development cooperation. In this spirit the EU confirms
its willingness to engage in preparations for the 11th EDF programming process,
and to notify in due course an indicative national financing allocation in this
process. The finalisation, signature and implementation of 11th EDF programming
documents will be envisaged with the democratically elected government.

Once Fiji has held free and fair elections and met the revised agreed commitments, an Article 96 review
mission, in line with the Cotonou Agreement, will be conducted in Fiji. Based on an agreement on the recommendations of this assessment, the article 96
appropriate measures can then be concluded for Fiji.

In order to advance cooperation
under the Cotonou Agreement and the Development Cooperation Instrument, the EU
invites the Interim Government to engage in an enhanced political dialogue with
the EU, starting as soon as possible.

The EU also welcomes
the engagement with the Pacific Island's Forum Ministerial Contact Group set up
to monitor the progress of Fiji's preparations for the elections and its return
to democracy and looks forward to the next steps for a transparent,
participatory and credible electoral process, leading to free and fair
elections and Fiji's return to democratic rule.

Yours sincerely,

Done at Brussels,

For the Council || For the Commission

C. ASHTON || A.PIEBALGS

President || Commissioner

Annex 1 to the Annex

The appropriate measures,
which will be adapted following the revision of the agreed commitments under
the enhanced political dialogue, are as follows:

· 
humanitarian aid and direct support to civil
society and vulnerable populations may continue;

· 
the cooperation activities under way, in
particular under the 8th and 9th EDFs, was allowed to
continue;

· 
cooperation activities that would help the
return to democracy and improve governance may be pursued, save under very
exceptional circumstances;

· 
implementation of the sugar reform accompanying
measures for 2006 was allowed to proceed. The Financing Agreement was signed at
the technical level by Fiji on 19 June 2007. It is noted that the Financing
Agreement includes a suspension clause;

· 
the 2007 sugar allocation is zero;

· 
availability of the 2008 sugar allocation was
subject to evidence of credible and timely preparation of elections in
accordance with the agreed commitments, notably regarding a census, the
redrafting of boundaries and electoral reform in accordance with the Constitution,
and measures taken to ensure the functioning of the Elections Office, including
the appointment of a Supervisor of Elections by 30 September 2007 in accordance
with the Constitution. This 2008 sugar allocation was lost on 31 December 2009;

· 
the 2009 sugar allocation was cancelled in May
2009 because the Interim Government decided to delay general elections until
September 2014;

· 
the 2010 allocation was cancelled before 1 May
2010 as no progress was made in the continuation of the democratic process;
however, given the critical situation of the sugar sector part of the
allocation was set aside for direct assistance to the population directly
dependent on sugar production in order to mitigate adverse social consequences.
These funds are centrally managed by the EU's Delegation in Suva and not
channelled through the Government;

· 
the preparation of programming for the 11th
EDF may be launched, so that Fiji could expect to be notified of an indicative
allocation in due course.

· 
specific support for the preparation and
implementation of key commitments, in particular in support of the preparation
and/or holding of elections, could be considered;

· 
regional cooperation, and Fiji’s participation in it, is unaffected;

· 
monitoring of the commitments will be in
accordance with the terms in the Annex to this letter concerning regular
dialogue, and effective cooperation with assessment and monitoring missions and
reporting.

Annex 2 to the Annex

COMMITMENTS AGREED WITH THE
REPUBLIC OF THE FIJI ISLANDS IN 2007

A.           Respect for Democratic
Principles

Commitment No 1

That free and fair
parliamentary elections take place within 24 months from 1 March 2007, subject
to the findings of an assessment to be carried out by the independent auditors
appointed by the Pacific Islands Forum Secretariat. The processes leading to
the holding of the elections will be jointly monitored, adapted and revised as
necessary on the basis of mutually agreed benchmarks. This implies in
particular that:

· 
by 30 June 2007 the Interim Government will
adopt a schedule setting out dates for the completion of the various steps to
be taken in preparation for the new parliamentary elections,

· 
the schedule specifies the timing of a census,
the redrafting of boundaries and electoral reform,

· 
the determination of boundaries and electoral
reform will be carried out in accordance with the Constitution,

· 
measures will be taken to ensure the functioning
of the Elections Office, including the appointment of a Supervisor of Elections
by 30 September 2007 in accordance with the Constitution,

· 
the appointment of the Vice-President will be in
accordance with the Constitution.

Commitment No 2

That the Interim
Government, when adopting major legislative, fiscal and other policy
initiatives and changes, will take into account consultations with civil
society and other relevant stakeholders.

B.           Rule of Law

Commitment No 1

That the Interim
Government will use its best endeavours to prevent statements by security
agencies designed to intimidate.

Commitment No 2

That the Interim
Government upholds the 1997 Constitution and guarantees the normal and
independent functioning of constitutional institutions, such as the Fiji Human
Rights Commission, the Public Service Commission, and the Constitutional
Offices Commission. The substantial independence and functioning of the Great
Council of Chiefs will be preserved.

Commitment No 3

That the independence
of the judiciary is fully respected, that it is allowed to work freely and that
its rulings are respected by all concerned parties, in particular:

· 
that the Interim Government undertakes to
appoint the tribunal pursuant to Section 138(3) of the Constitution by 15 July
2007,

· 
that any appointment and/or dismissal of judges
is henceforth carried out in strict conformity with constitutional provisions and
procedural rules,

· 
that there will be no instances whatsoever of
interference, of whatever form, by the military and the police or by the
Interim Government with the judicial process, including full respect for the
legal profession.

Commitment No 4

That all criminal
proceedings in connection with corruption are dealt with through the
appropriate judicial channels and that any other bodies that may be set up to
investigate alleged cases of corruption will operate within constitutional
boundaries.

C.           Human Rights and
Fundamental Freedoms

Commitment No 1

The Interim Government
will take all necessary steps to facilitate that all allegations of human
rights infringements are investigated or dealt with in accordance with the
various procedures and forums under the laws of the Fiji Islands.

Commitment No 2

The Interim Government
will lift the Public Emergency Regulations in May 2007, subject to any threats
to national security, public order and safety.

Commitment No 3

The Interim Government
is committed to ensuring that the Fiji Human Rights Commission functions with
full independence and in accordance with the Constitution.

Commitment No 4

That freedom of
expression and freedom of the media, in all forms, are fully respected as
provided in the Constitution.

D.        Follow-up
of Commitments

Commitment No 1

That the Interim
Government undertakes to maintain a regular dialogue to allow verification of
the progress made and gives EU and European Commission
authorities/representatives full access to information on all matters relating
to human rights, the peaceful restoration of democracy and the rule of law in
Fiji.

Commitment No 2

That the Interim
Government cooperates fully with any missions from the EU to assess and monitor
progress.

Commitment No 3

That the Interim Government
sends progress reports every three months starting 30 June 2007 regarding the
essential elements of the Cotonou Agreement and the commitments.

It
is noted that certain issues can only be effectively addressed through a
pragmatic approach that acknowledges the realities of the present and which
focuses on the future.

[1]               OJ L 317, 15.12.2000, p.3.

[2]               OJ L 287, 4.11.2010, p. 3.

[3]               OJ L 317, 15.12.2000, p. 376.

[4]               OJ L 378, 27.12.2006, p. 41.

[5]               OJ L 260, 5.10.2007, p. 15.

[6]               OJ L 262, 6.10.2009, p. 43.

[7]               OJ L 89, 9.4.2010, p. 7.

[8]               OJ L 260, 2.10.2010, p.10.

[9]               OJ L 93, 7.4.2011, p.2.

[10]             OJ L 252, 28.9.2011, p. 1.

[11]             OJ L 263, 28.9.2012, p.2.