# EUR-Lex - 52014PC0628 - EN

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# 52014PC0628

**Proposal for a COUNCIL IMPLEMENTING DECISION amending the list of non-cooperating third countries in fighting IUU fishing pursuant to Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing /* COM/2014/0628 final - 2014/0294 (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 of DATE MONTH 2014 (OJ C XXXX, XX.XX.2014, 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 DATE MONTH 2014
the Commission, by Commission Implementing Decision, identified Sri Lanka as a third country that the Commission considers as a non-cooperating third
country pursuant to the IUU Regulation.

The attached
proposal for a Council Implementing Decision is based on the findings which
have confirmed that Sri Lanka has failed to discharge the duties incumbent upon
it under international law as flag, port, coastal or market State.

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.

2014/0294 (NLE)

Proposal for a

COUNCIL IMPLEMENTING DECISION

amending the list of non-cooperating third
countries in fighting IUU fishing pursuant to 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 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[2], and in particular
Article 33 thereof,

Having regard to the proposal submitted by
the European Commission,

Whereas:

1.           INTRODUCTION

(1)       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, the Commission notified by a Decision of 15 November
2012[3] (Decision of 15 November
2012) eight third countries of the possibility of their being identified as third
countries that the Commission considers as non-cooperating third countries.

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

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

(6)       The Commission
highlighted, in those letters, that in order to avoid being identified and
proposed for formal listing as a non-cooperating third country as envisaged 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 Decision of 15 November 2012.

(7)       As a consequence, the
Commission invited the eight third countries concerned: (i) to take all
necessary measures to implement the actions contained in the action plans
suggested by the Commission; (ii) to assess the implementation of the actions
contained in the action plans suggested by the Commission; and (iii) 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 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 assured 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 indicated
that it considered a period of 6 months as being in principle sufficient for
reaching an agreement.

(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 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)     On 24 March 2014, the
Council Implementing Decision 2014/170/EU establishing a list of
non-cooperating third countries in fighting IUU fishing pursuant to Regulation
(EC) No 1005/2008 establishing a Community system to prevent, deter and
eliminate illegal, unreported and unregulated fishing[4] was adopted. Three of the eight countries concerned by the Decision
of 15 November 2012 were listed as non-cooperating countries as they, despite
taking some measures, still failed to discharge their
duties under international law as flag and coastal State
to take action to prevent, deter and eliminate IUU fishing.

(12)     By an Implementing Decision
of DATE MONTH 2014[5],
the Commission identified the Democratic Socialist Republic of Sri Lanka (Sri Lanka) as a non-cooperating third country in fighting IUU fishing. In accordance with
the IUU Regulation, the Commission provided the reasons why it considered that Sri Lanka failed to discharge its duties under international law as flag, port, coastal or
market State to take action, prevent, deter and eliminate IUU fishing.

(13)     A Council Implementing
Decision placing Sri Lanka on the list of non-cooperating third countries in
fighting IUU fishing should therefore be taken in the context of the
implementation of the IUU Regulation as a result of investigation and dialogue
procedures which were carried out in line with the substantive and procedural
requirements laid out in the IUU Regulation. This Decision is based on those
investigation and dialogue procedures, including the correspondence exchanged
and the meetings held, as well as the Decision of 15 November 2012 and Decision
of DATE MONTH 2014. The reasons underlying those procedures and acts are the
same as those underlying this Decision. This Decision placing Sri Lanka on the list of non-cooperating third countries in fighting IUU fishing should
entail the consequences stated in Article 38 of the IUU Regulation.

(14)     Upon the adoption of the
Council Implementing Decision placing Sri Lanka on the list of non-cooperating
third countries in accordance with Article 33 of the IUU Regulation, the
Decision of DATE MONTH 2014 identifying Sri Lanka as a non-cooperating third
country will become obsolete.

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

2.           PROCEDURE WITH RESPECT TO SRI LANKA

(16)     On 15 November 2012, the
Commission notified Sri Lanka pursuant to Article 32 of the IUU Regulation that
it considered the possibility of identifying Sri Lanka as a non-cooperating
third country and invited Sri Lanka to establish in close cooperation with its
services an action plan to rectify the shortcomings identified in the Decision
of 15 November 2012. During the period from December 2012 to June 2014, Sri Lanka made written submissions making its views known and met with the Commission to
discuss relevant points. The Commission provided Sri Lanka with relevant information
in writing. The Commission continued to seek and verify all information it
deemed necessary. The oral and written comments submitted by Sri Lanka following the Decision of 15 November 2012 were considered and taken into account, while Sri Lanka was kept informed either orally or in writing of the Commission's considerations.
The Commission took the view that the areas of concern and shortcomings as
described in the Decision of 15 November 2012 had not been addressed
sufficiently by Sri Lanka. Moreover, the Commission concluded that the measures
suggested in a plan of action had not been fully implemented.

3.           IDENTIFICATION OF SRI LANKA AS A NON-COOPERATING THIRD COUNTRY

(17)     In the
Decision of 15 November 2012, the Commission analysed
the duties of Sri Lanka and evaluated its compliance with its international
obligations as flag, port, coastal or market State. For the purpose of that
review, the Commission took into account the parameters listed in Article 31(4)
to (7) of the IUU Regulation.

(18)     The Commission reviewed the
compliance of Sri Lanka in line with the findings of Decision of 15 November
2012, and having regard to relevant information provided thereon by Sri Lanka, the suggested plan of action, and the measures taken to rectify the situation.

(19)     The main shortcomings
identified by the Commission in the suggested plan of action related to several
failures to implement international law obligations, linked in particular to
the lack of adoption of an adequate legal framework, lack of an adequate and
efficient monitoring system, lack of an observer scheme, lack of a deterrent
sanctioning system, and to improper implementation of the catch certification
scheme. Other identified shortcomings relate, more generally to compliance with
international obligations including Regional Fisheries Management Organisations
(RFMOs) recommendations and resolutions, and the conditions for registration of
vessels according to international law. A 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-IUU) was also identified. However, the lack of compliance
with non-binding recommendations and resolutions was considered only as
supporting evidence and not as a basis for the identification.

(20)     In its Implementing
Decision of DATE MONTH 2014, the Commission identified Sri Lanka as a non-cooperating third country pursuant to the IUU Regulation.

(21)     With respect to the
possible constraints upon Sri Lanka as a developing country, it is noted that
the specific development status and overall performance of Sri Lanka with respect to fisheries are not impaired by its general level of development.

(22)     Having
regards to the Decision of 15 November 2012 and the Decision of DATE MONTH
2014, and to the dialogue process with Sri Lanka carried out by the Commission
and its outcome, it can be concluded that Sri Lanka's actions
in light of its duties as flag State are insufficient to comply with Articles 94,
117 and 118 of the United Nations Convention on the Law of the Sea (UNCLOS) and
Articles 18, 19 and 20 of United Nations Fish Stocks Agreement (UNFSA).

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

4.           ESTABLISHMENT OF A LIST OF NON-COOPERATING
THIRD COUNTRIES

(24)     In view of the conclusions
reached with regard to Sri Lanka, that country should be added to the list of
non-cooperating third countries established by the Decision of 24 March 2014 in
accordance with Article 33 of the IUU Regulation. The Annex to the Implementing
Decision 2014/170/EU should therefore be amended accordingly.

(25)     Actions in respect of Sri Lanka in the form of measures that should be applied are listed in Article 38 of the
IUU Regulation. The prohibition of importation covers all fishery products as defined
in Article 2(8) of the IUU Regulation since the identification as a
non-cooperating third country is not due to the lack of appropriate measures
adopted in relation to IUU fishing affecting a given stock or species.

(26)     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 Sri Lanka as a non-cooperating country. In the light of the foregoing, this Decision should
enter into force on the day following that of its publication in the Official
Journal of the European Union.

(27)     If Sri Lanka demonstrates that the situation that warranted its listing has been rectified, the
Council, acting by qualified majority on a proposal from the Commission, is to remove
  Sri Lanka from the list of non-cooperating third countries in line with
Article 34 (1) of the IUU Regulation. Any removal decision shall also take into
consideration whether Sri Lanka has taken concrete measures capable of
achieving a lasting improvement of the situation,

DECIDES AS FOLLOWS:

Article 1

The Annex to Implementing Decision
2014/170/EU is replaced by the text set out 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

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

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

[3]               Commission Decision of 15 November 2012 on notifying
the third countries 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 (OJ C 354, 17.11.2012, p.
1).

[4]               OJ L 91, 27.3.2014, p.43

[5]               Commission Implementing Decision of DATE MONTH 2014
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 (OJ C XX, dd.mm.2014, p.X).

ANNEX

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

to the

Proposal for a COUNCIL IMPLEMENTING
DECISION

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

Belize

Kingdom of Cambodia

Republic of Guinea

Democratic Socialist Republic of Sri Lanka