# Official Journal C 144/2016

| | ISSN 1977-091X |
| --- | --- |
| Official Journal
  of the European Union | C 144 |
| | |
| English edition | Information and Notices | Volume 5923 April 2016 |

ISSN 1977-091X

Official Journal

of the European Union

C 144

English edition

Information and Notices

Volume 5923 April 2016

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2016/C 144/01 | Non-opposition to a notified concentration (Case M.7976 — Deutsche Alternative Asset Management (Global) Limited/Ermewa/Akiem) (
  1
  ) | 1 |
| 2016/C 144/02 | Non-opposition to a notified concentration (Case M.7943 — Dow/DCC) (
  1
  ) | 1 |
| 2016/C 144/03 | Non-opposition to a notified concentration (Case M.7851 — USS Nero / OPTrust / PGGM / Global Via) (
  1
  ) | 2 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2016/C 144/01

Non-opposition to a notified concentration (Case M.7976 — Deutsche Alternative Asset Management (Global) Limited/Ermewa/Akiem) (
  1
  )

1

1

2016/C 144/02

Non-opposition to a notified concentration (Case M.7943 — Dow/DCC) (
  1
  )

1

1

2016/C 144/03

Non-opposition to a notified concentration (Case M.7851 — USS Nero / OPTrust / PGGM / Global Via) (
  1
  )

1

2

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| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES |
| | European Commission |
| 2016/C 144/04 | Euro exchange rates | 3 |
| 2016/C 144/05 | Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing | 4 |
| 2016/C 144/06 | Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing | 9 |
| 2016/C 144/07 | Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing | 14 |
| | Court of Auditors |
| 2016/C 144/08 | Special Report No 12/2016 — Agencies’ use of grants: not always appropriate or demonstrably effective | 19 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

2016/C 144/04

Euro exchange rates

3

2016/C 144/05

Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

4

2016/C 144/06

Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

9

2016/C 144/07

Commission Decision of 21 April 2016 on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

14

Court of Auditors

2016/C 144/08

Special Report No 12/2016 — Agencies’ use of grants: not always appropriate or demonstrably effective

19

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| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY |
| | European Commission |
| 2016/C 144/09 | Prior notification of a concentration (Case M.7992 — Starwood Capital Group/Banco Sabadell/JV) — Candidate case for simplified procedure (
  1
  ) | 20 |
| 2016/C 144/10 | Prior notification of a concentration (Case M.7877 — Warburg Pincus/General Atlantic/UniCredit/Santander/SAM/Pioneer) (
  1
  ) | 21 |
| 2016/C 144/11 | Prior notification of a concentration (Case M.7910 — Kesko/Onninen) (
  1
  ) | 22 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

2016/C 144/09

Prior notification of a concentration (Case M.7992 — Starwood Capital Group/Banco Sabadell/JV) — Candidate case for simplified procedure (
  1
  )

1

20

2016/C 144/10

Prior notification of a concentration (Case M.7877 — Warburg Pincus/General Atlantic/UniCredit/Santander/SAM/Pioneer) (
  1
  )

1

21

2016/C 144/11

Prior notification of a concentration (Case M.7910 — Kesko/Onninen) (
  1
  )

1

22

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| --- | --- |
| | (1)   Text with EEA relevance |

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(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

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II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 23.4.2016 | EN | Official Journal of the European Union | C 144/1 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/1

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Non-opposition to a notified concentration

(Case M.7976 — Deutsche Alternative Asset Management (Global) Limited/Ermewa/Akiem)

(Text with EEA relevance)

(2016/C 144/01)

On 18 April 2016, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English language and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7976. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7976. EUR-Lex is the online access to European law.

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(1)  OJ L 24, 29.1.2004, p. 1.

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/1 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/1

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Non-opposition to a notified concentration

(Case M.7943 — Dow/DCC)

(Text with EEA relevance)

(2016/C 144/02)

On 20 April 2016, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7943. EUR-Lex is the online access to European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7943. EUR-Lex is the online access to European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/2 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/2

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Non-opposition to a notified concentration

(Case M.7851 — USS Nero / OPTrust / PGGM / Global Via)

(Text with EEA relevance)

(2016/C 144/03)

On 5 February 2016, the Commission decided not to oppose the above notified concentration and to declare it compatible with the internal market. This decision is based on Article 6(1)(b) of Council Regulation (EC) No 139/2004 (1). The full text of the decision is available only in English language and will be made public after it is cleared of any business secrets it may contain. It will be available:

| — | in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes, |
| --- | --- |

—

in the merger section of the Competition website of the Commission (http://ec.europa.eu/competition/mergers/cases/). This website provides various facilities to help locate individual merger decisions, including company, case number, date and sectoral indexes,

| — | in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7851. EUR-Lex is the online access to the European law. |
| --- | --- |

—

in electronic form on the EUR-Lex website (http://eur-lex.europa.eu/homepage.html?locale=en) under document number 32016M7851. EUR-Lex is the online access to the European law.

---

(1)  OJ L 24, 29.1.2004, p. 1.

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IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS, BODIES, OFFICES AND AGENCIES

European Commission

| 23.4.2016 | EN | Official Journal of the European Union | C 144/3 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/3

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Euro exchange rates (1)

22 April 2016

(2016/C 144/04)

1 euro =

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,1263 |
| JPY | Japanese yen | 124,86 |
| DKK | Danish krone | 7,4413 |
| GBP | Pound sterling | 0,78335 |
| SEK | Swedish krona | 9,1381 |
| CHF | Swiss franc | 1,0991 |
| ISK | Iceland króna | |
| NOK | Norwegian krone | 9,2443 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 27,046 |
| HUF | Hungarian forint | 310,10 |
| PLN | Polish zloty | 4,3506 |
| RON | Romanian leu | 4,4753 |
| TRY | Turkish lira | 3,1886 |
| AUD | Australian dollar | 1,4570 |
| CAD | Canadian dollar | 1,4342 |
| HKD | Hong Kong dollar | 8,7368 |
| NZD | New Zealand dollar | 1,6364 |
| SGD | Singapore dollar | 1,5211 |
| KRW | South Korean won | 1 287,41 |
| ZAR | South African rand | 16,1846 |
| CNY | Chinese yuan renminbi | 7,3159 |
| HRK | Croatian kuna | 7,4900 |
| IDR | Indonesian rupiah | 14 871,07 |
| MYR | Malaysian ringgit | 4,3943 |
| PHP | Philippine peso | 52,658 |
| RUB | Russian rouble | 74,2513 |
| THB | Thai baht | 39,432 |
| BRL | Brazilian real | 4,0218 |
| MXN | Mexican peso | 19,6823 |
| INR | Indian rupee | 74,9425 |

Currency

Exchange rate

USD

US dollar

1,1263

JPY

Japanese yen

124,86

DKK

Danish krone

7,4413

GBP

Pound sterling

0,78335

SEK

Swedish krona

9,1381

CHF

Swiss franc

1,0991

ISK

Iceland króna

NOK

Norwegian krone

9,2443

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

27,046

HUF

Hungarian forint

310,10

PLN

Polish zloty

4,3506

RON

Romanian leu

4,4753

TRY

Turkish lira

3,1886

AUD

Australian dollar

1,4570

CAD

Canadian dollar

1,4342

HKD

Hong Kong dollar

8,7368

NZD

New Zealand dollar

1,6364

SGD

Singapore dollar

1,5211

KRW

South Korean won

1 287,41

ZAR

South African rand

16,1846

CNY

Chinese yuan renminbi

7,3159

HRK

Croatian kuna

7,4900

IDR

Indonesian rupiah

14 871,07

MYR

Malaysian ringgit

4,3943

PHP

Philippine peso

52,658

RUB

Russian rouble

74,2513

THB

Thai baht

39,432

BRL

Brazilian real

4,0218

MXN

Mexican peso

19,6823

INR

Indian rupee

74,9425

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(1)  Source: reference exchange rate published by the ECB.

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/4 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/4

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COMMISSION DECISION

of 21 April 2016

on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

(2016/C 144/05)

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

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

(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 to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures. |
| --- | --- |

(2)

Chapter VI of the IUU Regulation lays down the procedure to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures.

| (3) | In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation. |
| --- | --- |

(3)

In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation.

| (4) | Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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. |
| --- | --- |

(4)

Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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.

| (5) | The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation. |
| --- | --- |

(5)

The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

| (6) | In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries. |
| --- | --- |

(6)

In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.

| (7) | Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries. |
| --- | --- |

(7)

Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries.

| (8) | In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation. |
| --- | --- |

(8)

In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation.

2.   PROCEDURE WITH RESPECT TO THE REPUBLIC OF KIRIBATI

| (9) | The Republic of Kiribati (hereafter ‘Kiribati’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission. |
| --- | --- |

(9)

The Republic of Kiribati (hereafter ‘Kiribati’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission.

| (10) | Between 2010 and 2016 the Commission cooperated administratively with the authorities of Kiribati. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Kiribati. It entailed exchange of oral and written comments as well as an on-the-spot visit. The Commission sought and verified all information deemed necessary concerning Kiribati’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Kiribati in order to implement its obligations in the fight against IUU fishing. |
| --- | --- |

(10)

Between 2010 and 2016 the Commission cooperated administratively with the authorities of Kiribati. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Kiribati. It entailed exchange of oral and written comments as well as an on-the-spot visit. The Commission sought and verified all information deemed necessary concerning Kiribati’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Kiribati in order to implement its obligations in the fight against IUU fishing.

| (11) | Kiribati is a member of the Western and Central Pacific Fisheries Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC). Kiribati ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). It is a party to the South Pacific Forum Fisheries Agency (FFA) Convention (FFA Convention) (2) and to the Nauru Agreement (PNA) concerning cooperation in the management of fisheries of common interest (3). |
| --- | --- |

(11)

Kiribati is a member of the Western and Central Pacific Fisheries Commission (WCPFC) and the Inter-American Tropical Tuna Commission (IATTC). Kiribati ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). It is a party to the South Pacific Forum Fisheries Agency (FFA) Convention (FFA Convention) (2) and to the Nauru Agreement (PNA) concerning cooperation in the management of fisheries of common interest (3).

| (12) | In order to evaluate the compliance of Kiribati with its international obligations as flag, port, coastal or market State set out in the international agreements referred to in recital (11) and established by the relevant RFMOs referred to in that recital, the Commission sought, collected and analysed all the information it deemed necessary for the purpose of such an exercise. |
| --- | --- |

(12)

In order to evaluate the compliance of Kiribati with its international obligations as flag, port, coastal or market State set out in the international agreements referred to in recital (11) and established by the relevant RFMOs referred to in that recital, the Commission sought, collected and analysed all the information it deemed necessary for the purpose of such an exercise.

3.   POSSIBILITY OF THE REPUBLIC OF KIRIBATI BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

| (13) | Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Kiribati as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation. |
| --- | --- |

(13)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Kiribati as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation.

3.1.   Recurrence of IUU fishing activities and IUU trade flows (Article 31(4) of the IUU Regulation)

| (14) | On the basis of information retrieved by the Commission during its on-the-spot visit and of publically available information, there are strong indications that Kiribati is not in a position to provide information on the characteristics of the highly migratory species caught by its fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products. Indeed, Kiribati control in port appear to consist merely on a series of documentary checks (license status, Vessel Monitoring System tracks, observer reports, FFA Good standing record) before a fishing vessel is authorised to entry into the port. Similarly, it appears that there is a documentary cross-check on the quantities on the cargo manifest of the fishing vessel against the quantities in the mate receipt of the carrier before issuing the outward clearance document and the transhipment declaration. However, there would not exist further instructions for the physical control of the landing or transhipment operations. |
| --- | --- |

(14)

On the basis of information retrieved by the Commission during its on-the-spot visit and of publically available information, there are strong indications that Kiribati is not in a position to provide information on the characteristics of the highly migratory species caught by its fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products. Indeed, Kiribati control in port appear to consist merely on a series of documentary checks (license status, Vessel Monitoring System tracks, observer reports, FFA Good standing record) before a fishing vessel is authorised to entry into the port. Similarly, it appears that there is a documentary cross-check on the quantities on the cargo manifest of the fishing vessel against the quantities in the mate receipt of the carrier before issuing the outward clearance document and the transhipment declaration. However, there would not exist further instructions for the physical control of the landing or transhipment operations.

| (15) | Kiribati acknowledged not having a traceability system for fishery products caught by vessels flying its flag or for third country vessels fishing and transhipping in its waters and ports. Once the fish is landed or transhipped in the ports of Kiribati, there is no mechanism to trace the products in the next steps of the supply chain. Furthermore, the traceability of products would be hindered by the weak control performed by competent authorities on landings and transhipments taking place in Kiribati ports, as described in recital (14). Kiribati would therefore not be in a position to guarantee the transparency of its markets to allow the traceability of fish or fish products as established in point 71 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) which advises States to take steps to improve transparency of their markets. |
| --- | --- |

(15)

Kiribati acknowledged not having a traceability system for fishery products caught by vessels flying its flag or for third country vessels fishing and transhipping in its waters and ports. Once the fish is landed or transhipped in the ports of Kiribati, there is no mechanism to trace the products in the next steps of the supply chain. Furthermore, the traceability of products would be hindered by the weak control performed by competent authorities on landings and transhipments taking place in Kiribati ports, as described in recital (14). Kiribati would therefore not be in a position to guarantee the transparency of its markets to allow the traceability of fish or fish products as established in point 71 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) which advises States to take steps to improve transparency of their markets.

| (16) | Account taken of the apparent lack of traceability and lack of information available to Kiribati authorities on the fish landed or transhipped in its ports, it is unlikely that the country can ensure that trade of fishery products conducted in this country do not stem from IUU fishing. In that regard, it would appear that Kiribati fails to comply with the port State obligation to take action to promote the effectiveness of international conservation and management measures, including port inspections of documents, gears or catches and the prohibition of landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of those international conservation and management measures, as established in Article 23 of UNFSA. Kiribati would also fail to take into consideration the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing to final destination. |
| --- | --- |

(16)

Account taken of the apparent lack of traceability and lack of information available to Kiribati authorities on the fish landed or transhipped in its ports, it is unlikely that the country can ensure that trade of fishery products conducted in this country do not stem from IUU fishing. In that regard, it would appear that Kiribati fails to comply with the port State obligation to take action to promote the effectiveness of international conservation and management measures, including port inspections of documents, gears or catches and the prohibition of landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of those international conservation and management measures, as established in Article 23 of UNFSA. Kiribati would also fail to take into consideration the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing to final destination.

| (17) | In view of the situation explained in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and Article 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law as a flag and market State to prevent access of fisheries products stemming from IUU fishing to its market. |
| --- | --- |

(17)

In view of the situation explained in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and Article 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law as a flag and market State to prevent access of fisheries products stemming from IUU fishing to its market.

3.2.   Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)

| (18) | The importance of efficient cooperation mechanisms is to be emphasised account taken of the importance of foreign-flagged vessels in waters under jurisdiction of Kiribati. According to the information provided by the authorities of Kiribati during the Commission’ visit in November 2015, there are a total of 13 bilateral agreements with fisheries associations. In that respect, the fleet authorised to operate in waters of Kiribati is composed by 178 purse seine and 195 longline vessels, from which only 13 purse seine vessels are flagged to Kiribati. |
| --- | --- |

(18)

The importance of efficient cooperation mechanisms is to be emphasised account taken of the importance of foreign-flagged vessels in waters under jurisdiction of Kiribati. According to the information provided by the authorities of Kiribati during the Commission’ visit in November 2015, there are a total of 13 bilateral agreements with fisheries associations. In that respect, the fleet authorised to operate in waters of Kiribati is composed by 178 purse seine and 195 longline vessels, from which only 13 purse seine vessels are flagged to Kiribati.

| (19) | Whereas fishing vessels flagged to different 13 countries are licenced to operate within Kiribati waters, competent authorities acknowledged that no cooperation channels with the concerned flag States had been setup to ensure that Kiribati complies with its obligations to cooperate with flag States as described in recital (21). |
| --- | --- |

(19)

Whereas fishing vessels flagged to different 13 countries are licenced to operate within Kiribati waters, competent authorities acknowledged that no cooperation channels with the concerned flag States had been setup to ensure that Kiribati complies with its obligations to cooperate with flag States as described in recital (21).

| (20) | Kiribati has been so far rather reluctant to cooperate with the Commission in the improvement of the transparency of the Vessels Day Scheme (VDS) for the management of the purse seine fishery in the Western and Central Pacific. The Commission sent a series of letters both to the coastal and flag States concerned requesting that the latter have access to the information on fishing effort consumed by their fishing vessels under VDS. With this objective, three letters were addressed to Kiribati authorities on 18 November 2014, 19 December 2014 and 27 April 2015. None of the three requests were replied before the Commission visited Kiribati. While Kiribati authorities expressed during the visit in November 2015 that they would be willing to share VDS information, they have not provided to date any evidence of the arrangements ensuring the access by the authorities of concerned flag States. |
| --- | --- |

(20)

Kiribati has been so far rather reluctant to cooperate with the Commission in the improvement of the transparency of the Vessels Day Scheme (VDS) for the management of the purse seine fishery in the Western and Central Pacific. The Commission sent a series of letters both to the coastal and flag States concerned requesting that the latter have access to the information on fishing effort consumed by their fishing vessels under VDS. With this objective, three letters were addressed to Kiribati authorities on 18 November 2014, 19 December 2014 and 27 April 2015. None of the three requests were replied before the Commission visited Kiribati. While Kiribati authorities expressed during the visit in November 2015 that they would be willing to share VDS information, they have not provided to date any evidence of the arrangements ensuring the access by the authorities of concerned flag States.

| (21) | The performance of Kiribati described in recital (20) prevents the country from fulfilling its obligations pursuant to Articles 63 and 64 of UNCLOS establishing that coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of UNFSA further develop the obligation to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. In addition, Article 7(1)(3) of the FAO Code of Conduct (4) recommends that States concerned by the exploitation of straddling and trans-boundary fish stocks establish bilateral agreements 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. |
| --- | --- |

(21)

The performance of Kiribati described in recital (20) prevents the country from fulfilling its obligations pursuant to Articles 63 and 64 of UNCLOS establishing that coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of UNFSA further develop the obligation to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. In addition, Article 7(1)(3) of the FAO Code of Conduct (4) recommends that States concerned by the exploitation of straddling and trans-boundary fish stocks establish bilateral agreements 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.

| (22) | The legal framework, setup on the Fisheries Act 2010 as amended by Fisheries (Amendment) Act 2015 (5), is incomplete, in particular with regards to the sanctioning system. In concrete, the legal framework in force does not include a definition of IUU in line with IPOA IUU. The Act does not contain either explicit sanctions in case of breach of RFMO rules, transhipment at sea and fishing for a stock which is subject to a moratorium or for which fishing is prohibited. |
| --- | --- |

(22)

The legal framework, setup on the Fisheries Act 2010 as amended by Fisheries (Amendment) Act 2015 (5), is incomplete, in particular with regards to the sanctioning system. In concrete, the legal framework in force does not include a definition of IUU in line with IPOA IUU. The Act does not contain either explicit sanctions in case of breach of RFMO rules, transhipment at sea and fishing for a stock which is subject to a moratorium or for which fishing is prohibited.

| (23) | The notion of ‘serious violations’ established in Article 19(2) of the UNFSA and adopted by WCPFC in CMM 2006-8 (6) on boarding and inspection procedures reinforces deterrence of a sanctioning system by means of adapting the level of the sanction to the seriousness of the illegal activity, the objective being to deprive the economic benefit obtained by the offender. The current legal framework however does not contain the notion of ‘serious violations’ nor any other criteria for the modulation of sanctions between minimum and maximum levels to tackle the economic benefit derived from the illegal activity. |
| --- | --- |

(23)

The notion of ‘serious violations’ established in Article 19(2) of the UNFSA and adopted by WCPFC in CMM 2006-8 (6) on boarding and inspection procedures reinforces deterrence of a sanctioning system by means of adapting the level of the sanction to the seriousness of the illegal activity, the objective being to deprive the economic benefit obtained by the offender. The current legal framework however does not contain the notion of ‘serious violations’ nor any other criteria for the modulation of sanctions between minimum and maximum levels to tackle the economic benefit derived from the illegal activity.

| (24) | In addition, it appears that the Fisheries Act does not address recidivism. The treatment of repeated offences is also crucial to ensure deterrence of the sanction system. The fact that repeated offences are not explicitly targeted with higher penalties undermines the proportionality and deterrence of the sanction system of Kiribati. The gains of a repeated illegal activity would not be neutralised with increased sanctions and thus, potential offenders would not be deterred to continue IUU activities. |
| --- | --- |

(24)

In addition, it appears that the Fisheries Act does not address recidivism. The treatment of repeated offences is also crucial to ensure deterrence of the sanction system. The fact that repeated offences are not explicitly targeted with higher penalties undermines the proportionality and deterrence of the sanction system of Kiribati. The gains of a repeated illegal activity would not be neutralised with increased sanctions and thus, potential offenders would not be deterred to continue IUU activities.

| (25) | In conclusion, it seems that the sanction system in its current form, as examined in recitals (22) to (24) is not comprehensive and severe enough to achieve its deterrent function. In this respect, it seems that the treatment of serious violations 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 19(2) of UNFSA and Article 25(7) of the WCPFC Convention. |
| --- | --- |

(25)

In conclusion, it seems that the sanction system in its current form, as examined in recitals (22) to (24) is not comprehensive and severe enough to achieve its deterrent function. In this respect, it seems that the treatment of serious violations 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 19(2) of UNFSA and Article 25(7) of the WCPFC Convention.

| (26) | In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (5) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law in respect of cooperation and enforcement efforts. |
| --- | --- |

(26)

In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (5) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law in respect of cooperation and enforcement efforts.

3.3.   Failure to implement international rules (Article 31(6) of the IUU Regulation)

| (27) | The Commission analysed all information deemed relevant with respect to the status of Kiribati as contracting party of UNCLOS, UNFSA, WCPFC and IATTC. |
| --- | --- |

(27)

The Commission analysed all information deemed relevant with respect to the status of Kiribati as contracting party of UNCLOS, UNFSA, WCPFC and IATTC.

| (28) | According to the information provided by Kiribati during the visit in November 2015, tuna catches in Kiribati economic exclusive zone (EEZ) amounted in 2014 to approximately 600 000 metric tonnes (mt). |
| --- | --- |

(28)

According to the information provided by Kiribati during the visit in November 2015, tuna catches in Kiribati economic exclusive zone (EEZ) amounted in 2014 to approximately 600 000 metric tonnes (mt).

| (29) | On the basis of the figures presented in recital (28) it appears that Kiribati manages important global tuna resources and thus has the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, which should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery. |
| --- | --- |

(29)

On the basis of the figures presented in recital (28) it appears that Kiribati manages important global tuna resources and thus has the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, which should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery.

| (30) | In that respect, it appears that the legal framework of Kiribati would not ensure efficient and effective management of vessels operating in waters under its jurisdiction, in apparent contravention of the obligations and recommendations detailed in recital (29). Furthermore, the legal framework appears not to provide with clear and transparent conservation and management measures for all types of waters under the jurisdiction of Kiribati. The Tuna Management Plan updated in 2014 contains a comprehensive overview of the tuna fisheries in the country but would fail to propose concrete management actions with clear benchmarks and objectives. |
| --- | --- |

(30)

In that respect, it appears that the legal framework of Kiribati would not ensure efficient and effective management of vessels operating in waters under its jurisdiction, in apparent contravention of the obligations and recommendations detailed in recital (29). Furthermore, the legal framework appears not to provide with clear and transparent conservation and management measures for all types of waters under the jurisdiction of Kiribati. The Tuna Management Plan updated in 2014 contains a comprehensive overview of the tuna fisheries in the country but would fail to propose concrete management actions with clear benchmarks and objectives.

| (31) | The general principles to be followed by coastal States for the management of straddling fish stocks and highly migratory fish stocks are established in Article 5 of UNFSA. In this respect, the Kiribati Fisheries Act establishes as objectives the promotion of sustainable management of fisheries and the protection of fish stocks and the marine environment. Nonetheless, it seems that other principles established in UNFSA such as the precautionary approach, the maximum sustainable yield or the avoidance of excess fishing capacity and overfishing, are not addressed in the legal framework. |
| --- | --- |

(31)

The general principles to be followed by coastal States for the management of straddling fish stocks and highly migratory fish stocks are established in Article 5 of UNFSA. In this respect, the Kiribati Fisheries Act establishes as objectives the promotion of sustainable management of fisheries and the protection of fish stocks and the marine environment. Nonetheless, it seems that other principles established in UNFSA such as the precautionary approach, the maximum sustainable yield or the avoidance of excess fishing capacity and overfishing, are not addressed in the legal framework.

| (32) | Waters under Kiribati’ jurisdictions are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under Kiribati’ jurisdiction. However, Kiribati would appear to exclude its territorial and archipelagic waters from the application of the VDS, a system that limits fishing effort of the purse seine fleet through the allocation of fishing days. Therefore, the main legal instrument for the conservation of fisheries resources in the waters of Kiribati appears not to apply to a considerable part of the waters under its jurisdiction. |
| --- | --- |

(32)

Waters under Kiribati’ jurisdictions are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under Kiribati’ jurisdiction. However, Kiribati would appear to exclude its territorial and archipelagic waters from the application of the VDS, a system that limits fishing effort of the purse seine fleet through the allocation of fishing days. Therefore, the main legal instrument for the conservation of fisheries resources in the waters of Kiribati appears not to apply to a considerable part of the waters under its jurisdiction.

| (33) | The shortcomings as regards clarity and transparency of the applicable conservation and management rules described in recitals (30) to (32), including the control over fishing effort under VDS, in addition to the access of 360 foreign fishing vessels as detailed in recital (18), undermine the effective implementation of conservation and management measures, and compromise compliance with the obligations set out in Article 61(2) to (5), Article 62(1) and Article 64 of UNCLOS concerning optimum utilisation of resources through proper conservation and management measures. |
| --- | --- |

(33)

The shortcomings as regards clarity and transparency of the applicable conservation and management rules described in recitals (30) to (32), including the control over fishing effort under VDS, in addition to the access of 360 foreign fishing vessels as detailed in recital (18), undermine the effective implementation of conservation and management measures, and compromise compliance with the obligations set out in Article 61(2) to (5), Article 62(1) and Article 64 of UNCLOS concerning optimum utilisation of resources through proper conservation and management measures.

| (34) | Furthermore, according to public available information found in internet, it seems that Kiribati keeps an International Ship Registry (7) responsible for vessel registration which is located outside Kiribati. Considering the apparent low level of control by competent authorities to the registration process and the lack of relevant requirements such as those established in point 14 of the FAO Guidelines for Flag State Performance, Kiribati would be in a difficult position to ensure that vessels flying the flag of Kiribati have a genuine link with the country. The lack of such genuine link between the State and the vessels that are registered in its registry would be in contradiction with the conditions set out for the nationality of ships under Article 91 of the UNCLOS. |
| --- | --- |

(34)

Furthermore, according to public available information found in internet, it seems that Kiribati keeps an International Ship Registry (7) responsible for vessel registration which is located outside Kiribati. Considering the apparent low level of control by competent authorities to the registration process and the lack of relevant requirements such as those established in point 14 of the FAO Guidelines for Flag State Performance, Kiribati would be in a difficult position to ensure that vessels flying the flag of Kiribati have a genuine link with the country. The lack of such genuine link between the State and the vessels that are registered in its registry would be in contradiction with the conditions set out for the nationality of ships under Article 91 of the UNCLOS.

| (35) | In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law with respect to international rules, regulations and conservation and management measures. |
| --- | --- |

(35)

In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by Kiribati, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Kiribati failed to discharge its duties under international law with respect to international rules, regulations and conservation and management measures.

3.4.   Specific constraints of developing countries

| (36) | According to the United Nations Human Development Index (UNHDI) (8), Kiribati was considered in 2015 to be a medium human development country (ranked 137 out of 188 countries). |
| --- | --- |

(36)

According to the United Nations Human Development Index (UNHDI) (8), Kiribati was considered in 2015 to be a medium human development country (ranked 137 out of 188 countries).

| (37) | Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of Kiribati derived from its level of development cannot justify an absence of specific provisions in the national legal framework referring to international instruments to combat, deter and eliminate IUU fishing activities. In addition, it appears that the deficiencies of monitoring, control and surveillance system result from the imbalance between the limited capabilities of Kiribati to control fishing activities in its EEZ and the extent of the foreign fleet having access to its waters. |
| --- | --- |

(37)

Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of Kiribati derived from its level of development cannot justify an absence of specific provisions in the national legal framework referring to international instruments to combat, deter and eliminate IUU fishing activities. In addition, it appears that the deficiencies of monitoring, control and surveillance system result from the imbalance between the limited capabilities of Kiribati to control fishing activities in its EEZ and the extent of the foreign fleet having access to its waters.

| (38) | In view of the situation explained in this Section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of Kiribati fisheries governance may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Kiribati and actions taken to rectify the situation, Kiribati’ development level cannot fully excuse or otherwise justify its overall performance as flag, coastal or port State and the insufficiency of its action to prevent, deter and eliminate IUU fishing. |
| --- | --- |

(38)

In view of the situation explained in this Section and on the basis of all factual elements gathered by the Commission as well as the statements made by Kiribati, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of Kiribati fisheries governance may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Kiribati and actions taken to rectify the situation, Kiribati’ development level cannot fully excuse or otherwise justify its overall performance as flag, coastal or port State and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

4.   CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY

| (39) | In view of the conclusions reached with regard to Kiribati’s failure of to discharge its duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing. |
| --- | --- |

(39)

In view of the conclusions reached with regard to Kiribati’s failure of to discharge its duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing.

| (40) | In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Kiribati of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Kiribati. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation. |
| --- | --- |

(40)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Kiribati of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Kiribati. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.

| (41) | Furthermore, the notification to Kiribati of the possibility of being identified as a country which 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, |
| --- | --- |

(41)

Furthermore, the notification to Kiribati of the possibility of being identified as a country which 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,

HAS DECIDED AS FOLLOWS:

Sole Article

The Republic of Kiribati shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.

Done at Brussels, 21 April 2016.

For the Commission

Karmenu VELLA

Member of the Commission

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(1)  OJ L 286, 29.10.2008, p. 1.

1

(2)  http://www.ffa.int/

2

(3)  Nauru Agreement (http://www.ffa.int/node/93#attachments).

3

(4)  Code of Conduct for responsible fisheries, Food and Agriculture Organization of the United Nations, 1995.

4

(5)  Republic of Kiribati (No 6 of 2010) Act for the conservation, management and development of Kiribati fisheries and control of foreign fishing and connected purposes, amended by Republic of Kiribati (No 1 of 2015) Act to amend the Fisheries Act 2010.

5

(6)  https://www.wcpfc.int/system/files/Conservation%20and%20Management%20Measure-2006-08%20%5BHSB%26I%20Procedures%5D.pdf

6

(7)  Kiribati Ship Registry, http://www.kiribaship.com/EN/Default.aspx

7

(8)  Information retrieved from http://hdr.undp.org/en/statistics

8

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/9 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/9

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COMMISSION DECISION

of 21 April 2016

on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

(2016/C 144/06)

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

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

(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 to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures. |
| --- | --- |

(2)

Chapter VI of the IUU Regulation lays down the procedure to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures.

| (3) | In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation. |
| --- | --- |

(3)

In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation.

| (4) | Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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. |
| --- | --- |

(4)

Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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.

| (5) | The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation. |
| --- | --- |

(5)

The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

| (6) | In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries. |
| --- | --- |

(6)

In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.

| (7) | Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third-country flag states is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries. |
| --- | --- |

(7)

Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third-country flag states is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries.

| (8) | In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation. |
| --- | --- |

(8)

In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation.

2.   PROCEDURE WITH RESPECT TO THE REPUBLIC OF SIERRA LEONE

| (9) | The Republic of Sierra Leone (hereafter ‘Sierra Leone’) has not submitted its notification as a flag state pursuant to Article 20 of the IUU Regulation to the Commission. |
| --- | --- |

(9)

The Republic of Sierra Leone (hereafter ‘Sierra Leone’) has not submitted its notification as a flag state pursuant to Article 20 of the IUU Regulation to the Commission.

| (10) | Between 2014 and 2016 the Commission cooperated administratively with the authorities of Sierra Leone. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Sierra Leone. It entailed exchange of oral and written comments as well as an on-the-spot visit. The Commission sought and verified all information deemed necessary concerning Sierra Leone’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Sierra Leone in order to implement its obligations in the fight against IUU fishing. |
| --- | --- |

(10)

Between 2014 and 2016 the Commission cooperated administratively with the authorities of Sierra Leone. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Sierra Leone. It entailed exchange of oral and written comments as well as an on-the-spot visit. The Commission sought and verified all information deemed necessary concerning Sierra Leone’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Sierra Leone in order to implement its obligations in the fight against IUU fishing.

| (11) | Sierra Leone is a member of the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC). Sierra Leone has ratified the 1982 United Nations Convention on the Law of the Sea (Unclos). |
| --- | --- |

(11)

Sierra Leone is a member of the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC). Sierra Leone has ratified the 1982 United Nations Convention on the Law of the Sea (Unclos).

| (12) | In order to evaluate the compliance of Sierra Leone with its international obligations as flag, port, coastal or market State as set out in the international agreements referred to in recital 11 and established by the relevant regional fisheries management organisations (RFMOs), the Commission sought, collected and analysed all necessary information. |
| --- | --- |

(12)

In order to evaluate the compliance of Sierra Leone with its international obligations as flag, port, coastal or market State as set out in the international agreements referred to in recital 11 and established by the relevant regional fisheries management organisations (RFMOs), the Commission sought, collected and analysed all necessary information.

3.   POSSIBILITY OF THE REPUBLIC OF SIERRA LEONE BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

| (13) | Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of the Republic of Sierra Leone as flag, port, coastal or market state. For the purpose of this review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation and applicable international law. |
| --- | --- |

(13)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of the Republic of Sierra Leone as flag, port, coastal or market state. For the purpose of this review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation and applicable international law.

3.1.   Recurrence of IUU fishing activities and IUU trade flows (Article 31(4) of the IUU Regulation)

| (14) | The 1994 Fisheries Management and Development Decree and the 1995 Fisheries Regulations only cover the activities of Sierra-Leone-flagged fishing vessels in waters under the jurisdiction of Sierra Leone. |
| --- | --- |

(14)

The 1994 Fisheries Management and Development Decree and the 1995 Fisheries Regulations only cover the activities of Sierra-Leone-flagged fishing vessels in waters under the jurisdiction of Sierra Leone.

| (15) | On the basis of publically available information as well as information gathered by the Commission, the Commission has established that there is evidence vessels previously flagged to Sierra Leone have been involved in IUU fishing activities. These vessels are mentioned on RFMO IUU vessel lists (2) as having flown the flag of Sierra Leone after their inclusion on these lists (3). These vessels are Baroon, Gorilero, Kunlun, Viking and Yongding. |
| --- | --- |

(15)

On the basis of publically available information as well as information gathered by the Commission, the Commission has established that there is evidence vessels previously flagged to Sierra Leone have been involved in IUU fishing activities. These vessels are mentioned on RFMO IUU vessel lists (2) as having flown the flag of Sierra Leone after their inclusion on these lists (3). These vessels are Baroon, Gorilero, Kunlun, Viking and Yongding.

| (16) | There are strong indications that the authority in charge of vessel registration does not systematically inform the fisheries authorities about the registration of new fishing vessels or request fisheries history checks on these vessels. Similarly, it appears that the entity in charge of the international vessel registry does not consult the national authorities before registering any fishing vessel which will operate outside Sierra Leone’s Exclusive Economic Zone (EEZ). Thus, the list of fishing vessels flying the flag of Sierra Leone could be considered to not be consolidated: it appears the authority in charge of fisheries does not have any information on Sierra Leone fishing vessels operating beyond the Sierra Leone EEZ, while the authority responsible for the registration of vessels only has partial information on the status of Sierra Leone’s fleet register. The apparent lack of cooperation between the entity in charge of the international vessel registry and the national authorities could be considered to diminish Sierra Leone’s ability to monitor the size and activities of its fleet potentially allowing illegal operators to use the flag of Sierra Leone without detection. |
| --- | --- |

(16)

There are strong indications that the authority in charge of vessel registration does not systematically inform the fisheries authorities about the registration of new fishing vessels or request fisheries history checks on these vessels. Similarly, it appears that the entity in charge of the international vessel registry does not consult the national authorities before registering any fishing vessel which will operate outside Sierra Leone’s Exclusive Economic Zone (EEZ). Thus, the list of fishing vessels flying the flag of Sierra Leone could be considered to not be consolidated: it appears the authority in charge of fisheries does not have any information on Sierra Leone fishing vessels operating beyond the Sierra Leone EEZ, while the authority responsible for the registration of vessels only has partial information on the status of Sierra Leone’s fleet register. The apparent lack of cooperation between the entity in charge of the international vessel registry and the national authorities could be considered to diminish Sierra Leone’s ability to monitor the size and activities of its fleet potentially allowing illegal operators to use the flag of Sierra Leone without detection.

| (17) | The Commission established that there are up to 50 Sierra-Leone-flagged fishing vessels operating beyond Sierra Leone’s EEZ without authorisation from the relevant Sierra Leonean authorities. This appears to be in contravention of the national Cabinet Decision of 2010 that suspended the registration of fishing vessels through the international registry. Moreover, the Sierra Leone authorities acknowledged that these Sierra-Leone-flagged fishing vessels operating beyond the EEZ are not subject to monitoring, control and surveillance by the fisheries authority. They do not report their geographic position to Sierra Leone’s fisheries monitoring centre or share information with Sierra Leone’s fisheries authorities on catch data, landings or transhipments. |
| --- | --- |

(17)

The Commission established that there are up to 50 Sierra-Leone-flagged fishing vessels operating beyond Sierra Leone’s EEZ without authorisation from the relevant Sierra Leonean authorities. This appears to be in contravention of the national Cabinet Decision of 2010 that suspended the registration of fishing vessels through the international registry. Moreover, the Sierra Leone authorities acknowledged that these Sierra-Leone-flagged fishing vessels operating beyond the EEZ are not subject to monitoring, control and surveillance by the fisheries authority. They do not report their geographic position to Sierra Leone’s fisheries monitoring centre or share information with Sierra Leone’s fisheries authorities on catch data, landings or transhipments.

| (18) | The Commission examined the measures taken by Sierra Leone in respect of access of fisheries products stemming from IUU fishing to its market. Sierra Leonean vessels operating beyond the EEZ of Sierra Leone are not subject to any form of control by Sierra Leone’s authorities. These vessels do not report or transmit any information regarding their activities, landings and transhipments to the Sierra Leonean authorities. Therefore it is unlikely the traceability of fish or fish products stemming from these vessels can be guaranteed. |
| --- | --- |

(18)

The Commission examined the measures taken by Sierra Leone in respect of access of fisheries products stemming from IUU fishing to its market. Sierra Leonean vessels operating beyond the EEZ of Sierra Leone are not subject to any form of control by Sierra Leone’s authorities. These vessels do not report or transmit any information regarding their activities, landings and transhipments to the Sierra Leonean authorities. Therefore it is unlikely the traceability of fish or fish products stemming from these vessels can be guaranteed.

| (19) | The performance of Sierra Leone described in recitals 15 to 18 is not in line with Articles 94(1) and (2) of Unclos which provide that every state shall effectively ensure its jurisdiction and control over ships flying its flag. It is also not in line with point 24 of the Food and Agriculture Organisation of the United Nations’ (FAO) International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) that provides for the obligation to undertake comprehensive and effective control of fishing activities and point 35 of the IPOA IUU that provides that a flag state should ensure that, before it registers a vessel, it can exercise its responsibility to ensure that the vessel does not engage in IUU fishing. It also contravenes point 36 of the IPOA IUU, that provides that flag states should avoid flagging vessels with a history of non-compliance and point 42 of IPOA IUU which provide that every state shall maintain a register of ships containing the names and particulars of ships flying its flag. It also failed to comply with point 71 of the IPOA IUU which advises states to take steps to improve the transparency of their markets in order to ensure the traceability of fish or fish products. Equally, it failed to comply with Article 11 of the FAO Code of Conduct for Responsible Fisheries (FAO Code of Conduct) which sets good practices for post-harvest and responsible international trade. |
| --- | --- |

(19)

The performance of Sierra Leone described in recitals 15 to 18 is not in line with Articles 94(1) and (2) of Unclos which provide that every state shall effectively ensure its jurisdiction and control over ships flying its flag. It is also not in line with point 24 of the Food and Agriculture Organisation of the United Nations’ (FAO) International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) that provides for the obligation to undertake comprehensive and effective control of fishing activities and point 35 of the IPOA IUU that provides that a flag state should ensure that, before it registers a vessel, it can exercise its responsibility to ensure that the vessel does not engage in IUU fishing. It also contravenes point 36 of the IPOA IUU, that provides that flag states should avoid flagging vessels with a history of non-compliance and point 42 of IPOA IUU which provide that every state shall maintain a register of ships containing the names and particulars of ships flying its flag. It also failed to comply with point 71 of the IPOA IUU which advises states to take steps to improve the transparency of their markets in order to ensure the traceability of fish or fish products. Equally, it failed to comply with Article 11 of the FAO Code of Conduct for Responsible Fisheries (FAO Code of Conduct) which sets good practices for post-harvest and responsible international trade.

| (20) | In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3), (4)(a) and (4)(b) of the IUU Regulation, there are strong indications that Sierra Leone fails to discharge its duties under international law as a flag, port, coastal and market state in respect of IUU vessels and IUU fishing carried out or supported by vessels flying its flag or by its nationals and to prevent access of fisheries products stemming from IUU fishing to its market. |
| --- | --- |

(20)

In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3), (4)(a) and (4)(b) of the IUU Regulation, there are strong indications that Sierra Leone fails to discharge its duties under international law as a flag, port, coastal and market state in respect of IUU vessels and IUU fishing carried out or supported by vessels flying its flag or by its nationals and to prevent access of fisheries products stemming from IUU fishing to its market.

3.2.   Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)

| (21) | While the fisheries authorities of Sierra Leone were generally cooperative with the Commission and responded to requests for information and provided feedback, their capacity to reply to certain requests was limited by the status of the international registry and the lack of cooperation between the entity in charge of the international vessel registry and the national authorities, as established in Section 3.1. |
| --- | --- |

(21)

While the fisheries authorities of Sierra Leone were generally cooperative with the Commission and responded to requests for information and provided feedback, their capacity to reply to certain requests was limited by the status of the international registry and the lack of cooperation between the entity in charge of the international vessel registry and the national authorities, as established in Section 3.1.

| (22) | Sierra Leone is an important coastal state in West Africa, whose waters are rich fishing grounds attracting vessels from third countries. In November 2015, 155 foreign-flagged vessels were licensed to fish in the waters of Sierra Leone. All of these vessels, except tuna vessels, have an observer on board. Not all vessels have a vessel monitoring system (VMS) device on board. Without complete observer coverage on all fleet components and VMS on all industrial vessels, Sierra Leone cannot reliably control that no vessels are engaged in IUU fishing activities. The number of licences attributed could be considered to be neither in line with control capacity nor with available resources. |
| --- | --- |

(22)

Sierra Leone is an important coastal state in West Africa, whose waters are rich fishing grounds attracting vessels from third countries. In November 2015, 155 foreign-flagged vessels were licensed to fish in the waters of Sierra Leone. All of these vessels, except tuna vessels, have an observer on board. Not all vessels have a vessel monitoring system (VMS) device on board. Without complete observer coverage on all fleet components and VMS on all industrial vessels, Sierra Leone cannot reliably control that no vessels are engaged in IUU fishing activities. The number of licences attributed could be considered to be neither in line with control capacity nor with available resources.

| (23) | Sierra Leone is also an important flag state, operating an international registry, attracting vessels from third countries with no direct link to the country. As explained in recital 17, these vessels operate beyond the EEZ of Sierra Leone, on the high seas and in the waters of third countries. The Commission established that, while Sierra Leone cooperates with the countries of the subregion through the Sub Regional Fisheries Commission (SRFC), it does not appear to cooperate with third countries outside the region where Sierra Leonean fishing vessels operate. This lack of cooperation may result from the fact that Sierra Leone’s authorities seem to have little or no information about vessels flying the flag of Sierra Leone operating outside the national EEZ. |
| --- | --- |

(23)

Sierra Leone is also an important flag state, operating an international registry, attracting vessels from third countries with no direct link to the country. As explained in recital 17, these vessels operate beyond the EEZ of Sierra Leone, on the high seas and in the waters of third countries. The Commission established that, while Sierra Leone cooperates with the countries of the subregion through the Sub Regional Fisheries Commission (SRFC), it does not appear to cooperate with third countries outside the region where Sierra Leonean fishing vessels operate. This lack of cooperation may result from the fact that Sierra Leone’s authorities seem to have little or no information about vessels flying the flag of Sierra Leone operating outside the national EEZ.

| (24) | The national fisheries legal framework (4) is outdated, and needs revising to ensure consistency between national law and international and regional applicable rules. The definition of fishing activities includes searching for, catching, taking and harvesting fish as well as any activity in support of or preparation of these activities, including through the use of aircraft. The definition of fishing vessels includes vessels conducting fishing-related activities. Fishing-related activities include transhipment, storage, processing, transportation and refuelling and supplying fishing vessels. However, these texts do not specifically define IUU fishing activities or serious infringements as defined under international law, and do not expressly foresee enforcement measures and sanctions for activities conducted by Sierra Leonean vessels outside the jurisdiction of Sierra Leone or nationals supporting or engaged in IUU fishing. There are strong indications that the sanctioning system of Sierra Leone is not deterrent and proportionate, in line with international obligations. The value of fines is not linked to the value of the fish caught illegally and as such does not systematically deprive offenders of the benefits accruing from their illegal activities. The value of fines is not linked to the damages caused to the fishing resources and environment. |
| --- | --- |

(24)

The national fisheries legal framework (4) is outdated, and needs revising to ensure consistency between national law and international and regional applicable rules. The definition of fishing activities includes searching for, catching, taking and harvesting fish as well as any activity in support of or preparation of these activities, including through the use of aircraft. The definition of fishing vessels includes vessels conducting fishing-related activities. Fishing-related activities include transhipment, storage, processing, transportation and refuelling and supplying fishing vessels. However, these texts do not specifically define IUU fishing activities or serious infringements as defined under international law, and do not expressly foresee enforcement measures and sanctions for activities conducted by Sierra Leonean vessels outside the jurisdiction of Sierra Leone or nationals supporting or engaged in IUU fishing. There are strong indications that the sanctioning system of Sierra Leone is not deterrent and proportionate, in line with international obligations. The value of fines is not linked to the value of the fish caught illegally and as such does not systematically deprive offenders of the benefits accruing from their illegal activities. The value of fines is not linked to the damages caused to the fishing resources and environment.

| (25) | The Joint Operations Centre (JOC) is responsible for implementing the duties of fisheries monitoring and control and surveillance (MCS). Through funding from international projects the JOC has been equipped to carry out MCS functions. However, due to limited funding, the operationality of the JOC appears to be constrained, with no or inadequate budget assigned to cover the operational costs of the JOC. Therefore, Sierra Leone seems to lack material and financial resources to fight IUU fishing. |
| --- | --- |

(25)

The Joint Operations Centre (JOC) is responsible for implementing the duties of fisheries monitoring and control and surveillance (MCS). Through funding from international projects the JOC has been equipped to carry out MCS functions. However, due to limited funding, the operationality of the JOC appears to be constrained, with no or inadequate budget assigned to cover the operational costs of the JOC. Therefore, Sierra Leone seems to lack material and financial resources to fight IUU fishing.

| (26) | The legal framework and enforcement measures in Sierra Leone do not comply with the basic requirements in Articles 61, 62 and 117 to 119 of Unclos. The facts described in recitals 20 to 24 indicate that Sierra Leone failed to fulfil the conditions of Article 94 of Unclos which stipulates that a flag state assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Sierra Leone appears to fail to demonstrate that it has in place an adequate sanction regime to combat IUU as recommended in point 21 of IPOA IUU. Sierra Leone also appears to fail to take into consideration the recommendations in point 24 of the IPOA IUU which 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 VMS in accordance with the relevant national, regional and international standards. |
| --- | --- |

(26)

The legal framework and enforcement measures in Sierra Leone do not comply with the basic requirements in Articles 61, 62 and 117 to 119 of Unclos. The facts described in recitals 20 to 24 indicate that Sierra Leone failed to fulfil the conditions of Article 94 of Unclos which stipulates that a flag state assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Sierra Leone appears to fail to demonstrate that it has in place an adequate sanction regime to combat IUU as recommended in point 21 of IPOA IUU. Sierra Leone also appears to fail to take into consideration the recommendations in point 24 of the IPOA IUU which 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 VMS in accordance with the relevant national, regional and international standards.

| (27) | In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3) and (5) of the IUU Regulation, there are strong indications that Sierra Leone failed to discharge its duties under international law with respect to cooperation and enforcement. |
| --- | --- |

(27)

In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3) and (5) of the IUU Regulation, there are strong indications that Sierra Leone failed to discharge its duties under international law with respect to cooperation and enforcement.

3.3.   Failure to implement international rules (Article 31(6) of the IUU Regulation)

| (28) | Sierra Leone ratified Unclos in 1994 and is a contracting party to ICCAT and IOTC. |
| --- | --- |

(28)

Sierra Leone ratified Unclos in 1994 and is a contracting party to ICCAT and IOTC.

| (29) | From 2009 to 2012 Sierra Leone was identified as non-compliant by ICCAT. The identified status was lifted in 2013, but the situation in year 2014 raised concerns as no annual reports or compliance tables were received by ICCAT in 2015. Several repeated compliance issues have also been identified in the IOTC Compliance Report for Sierra Leone, in particular a general lack of compliance with IOTC measures and a failure to provide reports and information in line with Resolutions 12/11, 01/06, 10/09, SC04 and S17. Sierra Leone is only a contracting party to ICCAT and IOTC, and not any other RFMOs, and this despite the structure and area of operation of Sierra Leone’s fishing vessel fleet. |
| --- | --- |

(29)

From 2009 to 2012 Sierra Leone was identified as non-compliant by ICCAT. The identified status was lifted in 2013, but the situation in year 2014 raised concerns as no annual reports or compliance tables were received by ICCAT in 2015. Several repeated compliance issues have also been identified in the IOTC Compliance Report for Sierra Leone, in particular a general lack of compliance with IOTC measures and a failure to provide reports and information in line with Resolutions 12/11, 01/06, 10/09, SC04 and S17. Sierra Leone is only a contracting party to ICCAT and IOTC, and not any other RFMOs, and this despite the structure and area of operation of Sierra Leone’s fishing vessel fleet.

| (30) | Sierra Leone’s compliance issues in ICCAT and IOTC demonstrate the failure of Sierra Leone to fulfil its obligations as flag state laid down in Article 94 of Unclos and point 24 of IPOA IUU. |
| --- | --- |

(30)

Sierra Leone’s compliance issues in ICCAT and IOTC demonstrate the failure of Sierra Leone to fulfil its obligations as flag state laid down in Article 94 of Unclos and point 24 of IPOA IUU.

| (31) | Sierra Leone has not ratified any international legal instruments related to fisheries management except Unclos. The performance of Sierra Leone in implementing international instruments is not in accordance with the recommendations of point 11 of the IPOA IUU which encourages States, as a matter of priority, to ratify, accept or accede to the United Nations Agreement for the Implementation of the Provisions of Unclos relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) and the FAO Compliance Agreement. It also contravenes point 14 that provides that states should fully and effectively implement the Code of Conduct and its associated international plans of action. |
| --- | --- |

(31)

Sierra Leone has not ratified any international legal instruments related to fisheries management except Unclos. The performance of Sierra Leone in implementing international instruments is not in accordance with the recommendations of point 11 of the IPOA IUU which encourages States, as a matter of priority, to ratify, accept or accede to the United Nations Agreement for the Implementation of the Provisions of Unclos relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) and the FAO Compliance Agreement. It also contravenes point 14 that provides that states should fully and effectively implement the Code of Conduct and its associated international plans of action.

| (32) | In addition, while there is no dedicated fishing port in Sierra Leone, fishing vessels do land directly onto company jetties or in the commercial port. Sierra Leone has not ratified the 2009 FAO Port State Measures Agreement (PSMA). |
| --- | --- |

(32)

In addition, while there is no dedicated fishing port in Sierra Leone, fishing vessels do land directly onto company jetties or in the commercial port. Sierra Leone has not ratified the 2009 FAO Port State Measures Agreement (PSMA).

| (33) | Contrary to the recommendations in points 25 to 27 of the IPOA IUU, Sierra Leone has not developed a national plan of action against IUU fishing. |
| --- | --- |

(33)

Contrary to the recommendations in points 25 to 27 of the IPOA IUU, Sierra Leone has not developed a national plan of action against IUU fishing.

| (34) | Furthermore, as mentioned in recital 17, the management of Sierra Leone’s international registry is carried out by a private company located outside Sierra Leone, and Sierra Leone appears to have failed to ensure that vessels flying its flag have a genuine link with the country. This contravenes Article 91 of Unclos which provides that a genuine link must exist between the flag state and its ships. |
| --- | --- |

(34)

Furthermore, as mentioned in recital 17, the management of Sierra Leone’s international registry is carried out by a private company located outside Sierra Leone, and Sierra Leone appears to have failed to ensure that vessels flying its flag have a genuine link with the country. This contravenes Article 91 of Unclos which provides that a genuine link must exist between the flag state and its ships.

| (35) | In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Sierra Leone has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures. |
| --- | --- |

(35)

In view of the facts presented in this section of the Decision and on the basis of all factual elements gathered by the Commission as well as all the statements made by the country, it could be established that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Sierra Leone has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

3.4.   Specific constraints of developing countries

| (36) | According to the United Nations Human Development Index (UNHDI) (5), in 2015 Sierra Leone is considered to be a low human development country ranked 181 out of 188 countries. |
| --- | --- |

(36)

According to the United Nations Human Development Index (UNHDI) (5), in 2015 Sierra Leone is considered to be a low human development country ranked 181 out of 188 countries.

| (37) | Although specific capacity constraints may exist with respect to monitoring, control and surveillance, the specific constraints of Sierra Leone derived from its level of development do not justify all the deficiencies identified in the previous sections. This concerns especially the registration of fishing vessels under the Sierra Leonean international registry and the lack of knowledge about these vessels. |
| --- | --- |

(37)

Although specific capacity constraints may exist with respect to monitoring, control and surveillance, the specific constraints of Sierra Leone derived from its level of development do not justify all the deficiencies identified in the previous sections. This concerns especially the registration of fishing vessels under the Sierra Leonean international registry and the lack of knowledge about these vessels.

| (38) | It appears that the shortcomings identified result primarily from an inadequate administrative environment to ensure the efficient and effective performance by Sierra Leone of its duties as flag, coastal, port and market state. Sierra Leone has received support from regional initiatives which aimed to strengthen governance and fight IUU fishing including through improved MCS. However this funding was suspended in 2015 due to governance concerns and without these funds the Sierra Leonean JOC cannot operate effectively. |
| --- | --- |

(38)

It appears that the shortcomings identified result primarily from an inadequate administrative environment to ensure the efficient and effective performance by Sierra Leone of its duties as flag, coastal, port and market state. Sierra Leone has received support from regional initiatives which aimed to strengthen governance and fight IUU fishing including through improved MCS. However this funding was suspended in 2015 due to governance concerns and without these funds the Sierra Leonean JOC cannot operate effectively.

| (39) | In view of the facts presented 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(7) of the IUU Regulation, that the development status and overall performance of Sierra Leone with respect to fisheries management may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Sierra Leone, the development level of Sierra Leone cannot fully excuse or otherwise justify its overall performance as flag, port, coastal or market state with respect to fisheries and the insufficiency of its actions to prevent, deter and eliminate IUU fishing. |
| --- | --- |

(39)

In view of the facts presented 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(7) of the IUU Regulation, that the development status and overall performance of Sierra Leone with respect to fisheries management may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Sierra Leone, the development level of Sierra Leone cannot fully excuse or otherwise justify its overall performance as flag, port, coastal or market state with respect to fisheries and the insufficiency of its actions to prevent, deter and eliminate IUU fishing.

4.   CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY

| (40) | In view of the conclusions reached with regard to the failure of Sierra Leone to discharge its duties under international law as flag, port, coastal or market state and to take action to prevent, deter and eliminate IUU fishing, that this country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing. |
| --- | --- |

(40)

In view of the conclusions reached with regard to the failure of Sierra Leone to discharge its duties under international law as flag, port, coastal or market state and to take action to prevent, deter and eliminate IUU fishing, that this country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing.

| (41) | In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Sierra Leone of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Sierra Leone. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation. |
| --- | --- |

(41)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Sierra Leone of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Sierra Leone. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.

| (42) | Furthermore, the notification to Sierra Leone of the possibility of being identified as a country which 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, |
| --- | --- |

(42)

Furthermore, the notification to Sierra Leone of the possibility of being identified as a country which 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,

HAS DECIDED AS FOLLOWS:

Sole Article

The Republic of Sierra Leone shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.

Done at Brussels, 21 April 2016.

For the Commission

Karmenu VELLA

Member of the Commission

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(1)  OJ L 286, 29.10.2008, p. 1.

1

(2)  The relevant RFMOs are CCAMLR, SEAFO, GFCM, NEAFC, NAFO and IOTC. Information from: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2015.199.01.0012.01.ENG

2

(3)  See Part B of the Annex to Regulation (EU) No 468/2010.

3

(4)  1994 Fisheries Management and Development Decree and the 1995 Fisheries Regulations.

4

(5)  Information from: http://hdr.undp.org/sites/default/files/2015_human_development_report_1.pdf

5

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/14 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/14

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COMMISSION DECISION

of 21 April 2016

on notifying a third country of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing

(2016/C 144/07)

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

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

(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 to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures. |
| --- | --- |

(2)

Chapter VI of the IUU Regulation lays down the procedure to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures.

| (3) | In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation. |
| --- | --- |

(3)

In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity 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 is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation.

| (4) | Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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. |
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(4)

Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating 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.

| (5) | The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation. |
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(5)

The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

| (6) | In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries. |
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(6)

In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.

| (7) | Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries. |
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(7)

Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries.

| (8) | In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation. |
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(8)

In accordance with Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation.

2.   PROCEDURE WITH RESPECT TO THE REPUBLIC OF TRINIDAD AND TOBAGO

| (9) | The Republic of Trinidad and Tobago (hereafter ‘Trinidad and Tobago’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission. |
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(9)

The Republic of Trinidad and Tobago (hereafter ‘Trinidad and Tobago’) has not submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation to the Commission.

| (10) | Between 2014 and 2016 the Commission cooperated administratively with the authorities of Trinidad and Tobago. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Trinidad and Tobago. It entailed exchange of oral and written comments as well as on-the-spot visits. The Commission sought and verified all information deemed necessary concerning Trinidad and Tobago’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Trinidad and Tobago in order to implement its obligations in the fight against IUU fishing. |
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(10)

Between 2014 and 2016 the Commission cooperated administratively with the authorities of Trinidad and Tobago. This cooperation covered issues pertaining to the implementation, control and enforcement of laws, regulations and conservation and management measures by Trinidad and Tobago. It entailed exchange of oral and written comments as well as on-the-spot visits. The Commission sought and verified all information deemed necessary concerning Trinidad and Tobago’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, as well as measures taken by Trinidad and Tobago in order to implement its obligations in the fight against IUU fishing.

| (11) | Trinidad and Tobago is a contracting party of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) and the International Commission for the Conservation of Atlantic Tunas (ICCAT). |
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(11)

Trinidad and Tobago is a contracting party of the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA) and the International Commission for the Conservation of Atlantic Tunas (ICCAT).

| (12) | In order to evaluate the compliance of Trinidad and Tobago with its international obligations as flag, port, coastal or market State as set out in the international agreements referred to in recital (11) and established by the relevant Regional Fisheries Management Organisations (RFMOs), the Commission sought, collected and analysed all necessary information. |
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(12)

In order to evaluate the compliance of Trinidad and Tobago with its international obligations as flag, port, coastal or market State as set out in the international agreements referred to in recital (11) and established by the relevant Regional Fisheries Management Organisations (RFMOs), the Commission sought, collected and analysed all necessary information.

3.   POSSIBILITY OF THE REPUBLIC OF TRINIDAD AND TOBAGO BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

| (13) | Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Trinidad and Tobago as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation and the applicable International Law. |
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(13)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Trinidad and Tobago as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation and the applicable International Law.

3.1   Recurrence of IUU fishing activities and IUU trade flows (Article 31(4) of the IUU Regulation)

| (14) | For the reasons described below and in Section 3.2, Trinidad and Tobago’s fisheries management legal framework, based notably on the 1916 Fisheries Act (2) and the 1986 Archipelagic Waters and Exclusive Economic Zone Act (3), does not appear to establish measures to effectively control Trinidad and Tobago flagged vessels and third country vessels in Trinidad and Tobago waters and ports. |
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(14)

For the reasons described below and in Section 3.2, Trinidad and Tobago’s fisheries management legal framework, based notably on the 1916 Fisheries Act (2) and the 1986 Archipelagic Waters and Exclusive Economic Zone Act (3), does not appear to establish measures to effectively control Trinidad and Tobago flagged vessels and third country vessels in Trinidad and Tobago waters and ports.

| (15) | On the basis of information retrieved by the Commission during its on-the-spot visit and of publically available information, there are strong indications that Trinidad and Tobago is not in a position to provide information on the characteristics of the highly migratory species caught by its high seas fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products. |
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(15)

On the basis of information retrieved by the Commission during its on-the-spot visit and of publically available information, there are strong indications that Trinidad and Tobago is not in a position to provide information on the characteristics of the highly migratory species caught by its high seas fishing fleet or the fishing products landed or transhipped in its ports and what were the trade flows of those products.

| (16) | Given the apparent lack of traceability and lack of information available to Trinidad and Tobago authorities about the fish landed or transhipped by its flagged vessels or by third country flagged vessels in its ports, it is unlikely that Trinidad and Tobago can ensure that trade of fishery products conducted in this country do not stem from IUU fishing. |
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(16)

Given the apparent lack of traceability and lack of information available to Trinidad and Tobago authorities about the fish landed or transhipped by its flagged vessels or by third country flagged vessels in its ports, it is unlikely that Trinidad and Tobago can ensure that trade of fishery products conducted in this country do not stem from IUU fishing.

| (17) | In that regard, it seems that Trinidad and Tobago fails to comply with the port State obligation to take action to promote the effectiveness of international conservation and management measures, including port inspections of documents, gears or catches and the prohibition of landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of those international conservation and management measures, as established in Article 23 of UNFSA. Trinidad and Tobago also appears to fail to take into consideration the recommendations in point 24 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing to final destination, and point 71 of the IPOA IUU which advises States to take steps to improve the transparency of their markets in order to ensure the traceability of fish or fish products. Equally, it seems that it does not comply with Article 11 of the FAO Code of Conduct for Responsible Fisheries (FAO Code of Conduct) which sets good practices for post-harvest and responsible international trade. |
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(17)

In that regard, it seems that Trinidad and Tobago fails to comply with the port State obligation to take action to promote the effectiveness of international conservation and management measures, including port inspections of documents, gears or catches and the prohibition of landings and transhipments where it has been established that the catch has been taken in a manner which undermines the effectiveness of those international conservation and management measures, as established in Article 23 of UNFSA. Trinidad and Tobago also appears to fail to take into consideration the recommendations in point 24 of the FAO International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing to final destination, and point 71 of the IPOA IUU which advises States to take steps to improve the transparency of their markets in order to ensure the traceability of fish or fish products. Equally, it seems that it does not comply with Article 11 of the FAO Code of Conduct for Responsible Fisheries (FAO Code of Conduct) which sets good practices for post-harvest and responsible international trade.

| (18) | In view of the situation explained in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by Trinidad and Tobago, it could be established that, pursuant to Article 31(3) and 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Trinidad and Tobago fails to discharge its duties under international law as a flag and market State to prevent access of fisheries products stemming from IUU fishing to its market. |
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(18)

In view of the situation explained in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by Trinidad and Tobago, it could be established that, pursuant to Article 31(3) and 31(4)(a) and (b) of the IUU Regulation, there are strong indications that Trinidad and Tobago fails to discharge its duties under international law as a flag and market State to prevent access of fisheries products stemming from IUU fishing to its market.

3.2   Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)

| (19) | While Trinidad and Tobago authorities were generally cooperative to respond and provide feedback to requests for information, the reliability and correctness of their replies were compromised and undermined by the outdated legal framework, that appears not to be in line with its international law commitments, and lack of transparency of its fisheries management system (as mentioned in Section 3(1) and described in recitals (20) to (23)). Trinidad and Tobago authorities submitted a draft of a new Fisheries Management Bill which, however, could not yet be considered in line with its international commitments. |
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(19)

While Trinidad and Tobago authorities were generally cooperative to respond and provide feedback to requests for information, the reliability and correctness of their replies were compromised and undermined by the outdated legal framework, that appears not to be in line with its international law commitments, and lack of transparency of its fisheries management system (as mentioned in Section 3(1) and described in recitals (20) to (23)). Trinidad and Tobago authorities submitted a draft of a new Fisheries Management Bill which, however, could not yet be considered in line with its international commitments.

| (20) | Trinidad and Tobago is a main port State in the Eastern Caribbean region. Third country flagged vessels land and tranship straddling and highly migratory species in Trinidad and Tobago ports. Despite this fact, it seems there is no formal or informal cooperation with those third countries. Moreover, Trinidad and Tobago authorities were not able to provide information about what third countries are involved in these activities in its ports. |
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(20)

Trinidad and Tobago is a main port State in the Eastern Caribbean region. Third country flagged vessels land and tranship straddling and highly migratory species in Trinidad and Tobago ports. Despite this fact, it seems there is no formal or informal cooperation with those third countries. Moreover, Trinidad and Tobago authorities were not able to provide information about what third countries are involved in these activities in its ports.

| (21) | The outdated fisheries legal framework does not include general principles and measures for the conservation and management of fishing resources as required in applicable international law. Moreover, Trinidad and Tobago’s legal framework does not address IUU fishing activities. In that respect, the current legal framework lacks a definition of serious infringements and a comprehensive list of serious offences addressed with proportionate severe sanctions. The value of fines is not linked to the value of the fish caught illegally and as such does not systematically deprive offenders of the benefits accruing from their illegal activities. Hence, the sanction system in its current form is not comprehensive and severe enough to achieve its deterrent function. |
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(21)

The outdated fisheries legal framework does not include general principles and measures for the conservation and management of fishing resources as required in applicable international law. Moreover, Trinidad and Tobago’s legal framework does not address IUU fishing activities. In that respect, the current legal framework lacks a definition of serious infringements and a comprehensive list of serious offences addressed with proportionate severe sanctions. The value of fines is not linked to the value of the fish caught illegally and as such does not systematically deprive offenders of the benefits accruing from their illegal activities. Hence, the sanction system in its current form is not comprehensive and severe enough to achieve its deterrent function.

| (22) | The Fisheries Division within the Ministry of Agriculture, Land and Fisheries does not include a Fisheries Monitoring, Surveillance and Enforcement Unit. It appears that fishing activities by Trinidad and Tobago flagged vessels wherever they take place and third country flagged vessels in Trinidad and Tobago waters and ports are not controlled. Not all semi-industrial and industrial (beyond 24 m.) Trinidad and Tobago flagged vessels are equipped with Vessels Monitoring System (VMS) and logbooks are not compulsory. There is no observer program. Moreover, there is no operational Fisheries Monitoring Centre. |
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(22)

The Fisheries Division within the Ministry of Agriculture, Land and Fisheries does not include a Fisheries Monitoring, Surveillance and Enforcement Unit. It appears that fishing activities by Trinidad and Tobago flagged vessels wherever they take place and third country flagged vessels in Trinidad and Tobago waters and ports are not controlled. Not all semi-industrial and industrial (beyond 24 m.) Trinidad and Tobago flagged vessels are equipped with Vessels Monitoring System (VMS) and logbooks are not compulsory. There is no observer program. Moreover, there is no operational Fisheries Monitoring Centre.

| (23) | The apparent lack of adequate legal framework and means of control would render highly unlikely any effective enforcement. It appears that the only information received by the Trinidad and Tobago authorities are the Fishing Trip Reports filled in and submitted by the operators. In the current situation, the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing activities could not be properly analysed. |
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(23)

The apparent lack of adequate legal framework and means of control would render highly unlikely any effective enforcement. It appears that the only information received by the Trinidad and Tobago authorities are the Fishing Trip Reports filled in and submitted by the operators. In the current situation, the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing activities could not be properly analysed.

| (24) | The shortcomings of Trinidad and Tobago described in recital (20) prevent it from complying with Articles 63, 64, 117 to 119 of UNCLOS establishing the duty to cooperate for all states in the conservation and management of marine living resources, including straddling stocks and highly migratory species. Articles 7, 8 and 20 of UNFSA further develop the obligation of States to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. That 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. |
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(24)

The shortcomings of Trinidad and Tobago described in recital (20) prevent it from complying with Articles 63, 64, 117 to 119 of UNCLOS establishing the duty to cooperate for all states in the conservation and management of marine living resources, including straddling stocks and highly migratory species. Articles 7, 8 and 20 of UNFSA further develop the obligation of States to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. That 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.

| (25) | The legal framework, including the enforcement measures, of Trinidad and Tobago seems not to comply with the basic requirements in Articles 61, 62 and 117 to 119 of UNCLOS and Articles 5 to 23 of UNFSA. The facts described in recitals (21) to (23) indicate that Trinidad and Tobago fails to fulfil the conditions of Article 94 of UNCLOS which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. The described behaviour of Trinidad and Tobago with respect to its vessels would also be in contradiction with Article 18(3) UNFSA which stipulates measures to be taken by a State in respect of vessels flying its flag. Furthermore, Trinidad and Tobago would not fulfil its compliance and enforcement obligations as a flag State stipulated in Article 19 of UNFSA since it appears to have failed to demonstrate that it acted and operated in accordance with the detailed rules laid down in that Article. In particular, the sanction scheme does not seem to be in line with Article 19(2) of UNFSA where it is established that sanctions applicable in respect of violations are to be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and are to deprive offenders of the benefits accruing from their illegal activities. Trinidad and Tobago also appears to fail to take into consideration the recommendations in point 24 of the IPOA IUU which 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 VMS in accordance with the relevant national, regional and international standards. |
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(25)

The legal framework, including the enforcement measures, of Trinidad and Tobago seems not to comply with the basic requirements in Articles 61, 62 and 117 to 119 of UNCLOS and Articles 5 to 23 of UNFSA. The facts described in recitals (21) to (23) indicate that Trinidad and Tobago fails to fulfil the conditions of Article 94 of UNCLOS which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. The described behaviour of Trinidad and Tobago with respect to its vessels would also be in contradiction with Article 18(3) UNFSA which stipulates measures to be taken by a State in respect of vessels flying its flag. Furthermore, Trinidad and Tobago would not fulfil its compliance and enforcement obligations as a flag State stipulated in Article 19 of UNFSA since it appears to have failed to demonstrate that it acted and operated in accordance with the detailed rules laid down in that Article. In particular, the sanction scheme does not seem to be in line with Article 19(2) of UNFSA where it is established that sanctions applicable in respect of violations are to be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and are to deprive offenders of the benefits accruing from their illegal activities. Trinidad and Tobago also appears to fail to take into consideration the recommendations in point 24 of the IPOA IUU which 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 VMS in accordance with the relevant national, regional and international standards.

| (26) | In view of the situation explained in this section 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 that, pursuant to Article 31(3) and 31(5) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge its duties under international law as flag State in respect of cooperation and enforcement efforts. |
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(26)

In view of the situation explained in this section 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 that, pursuant to Article 31(3) and 31(5) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge its duties under international law as flag State in respect of cooperation and enforcement efforts.

3.3   Failure to implement international rules (Article 31(6) of the IUU Regulation)

| (27) | The Commission analysed all information deemed relevant with respect to the status of Trinidad and Tobago as contracting party of UNCLOS, UNFSA and ICCAT. |
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(27)

The Commission analysed all information deemed relevant with respect to the status of Trinidad and Tobago as contracting party of UNCLOS, UNFSA and ICCAT.

| (28) | Since 2011 ICCAT has officially communicated to Trinidad and Tobago authorities (4) that this country has not fully and effectively complied with its obligations in accordance with some ICCAT Recommendations (notably, Recommendation 05-09 on Compliance with Statistical Reporting Obligations, Recommendations 06-09 and 12-04 to Further Strengthen the Plan to Rebuild Blue Marlin and White Marlin Populations, and Recommendation 13-02 for the Conservation of North Atlantic Swordfish). Moreover, the following deficiencies for Trinidad and Tobago were noted by ICCAT: 1) Task I data on fleet characteristics were not submitted; 2) Task II data on catches size were not submitted; 3) Compliance tables were not submitted; 4) No swordfish fisheries development or management plan was submitted; 5) ICCAT did not receive a reply to its letter of concern of 2014; 6) the list of Bigeye tuna/Yellowfin tuna vessels was received after the deadline; 7) Annual report for the Standing Committee on Research and Statistics (SCRS) was received late; 8) Continued and increasing billfish overharvests. Continued and significant white marlin and blue marlin overharvests, lack of domestic management measures for these fisheries, incompliance with logbook and trade monitoring requirements, have led to ICCAT to issue a letter of identification in 2015 (5). |
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(28)

Since 2011 ICCAT has officially communicated to Trinidad and Tobago authorities (4) that this country has not fully and effectively complied with its obligations in accordance with some ICCAT Recommendations (notably, Recommendation 05-09 on Compliance with Statistical Reporting Obligations, Recommendations 06-09 and 12-04 to Further Strengthen the Plan to Rebuild Blue Marlin and White Marlin Populations, and Recommendation 13-02 for the Conservation of North Atlantic Swordfish). Moreover, the following deficiencies for Trinidad and Tobago were noted by ICCAT: 1) Task I data on fleet characteristics were not submitted; 2) Task II data on catches size were not submitted; 3) Compliance tables were not submitted; 4) No swordfish fisheries development or management plan was submitted; 5) ICCAT did not receive a reply to its letter of concern of 2014; 6) the list of Bigeye tuna/Yellowfin tuna vessels was received after the deadline; 7) Annual report for the Standing Committee on Research and Statistics (SCRS) was received late; 8) Continued and increasing billfish overharvests. Continued and significant white marlin and blue marlin overharvests, lack of domestic management measures for these fisheries, incompliance with logbook and trade monitoring requirements, have led to ICCAT to issue a letter of identification in 2015 (5).

| (29) | As it has been highlighted by the ICCAT Compliance Committee, these ‘problems with lack of reporting, late submissions, incomplete reporting, and poor data quality continue to impede the work of the Standing Committee on Research and Statistics (SCRS) in performing stock assessments and in formulating management advice. Late or incomplete reporting causes difficulties for the Secretariat in preparing documents for the Commission and its Panels and Committees, and reduces the efficiency of the Compliance Committee’. |
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(29)

As it has been highlighted by the ICCAT Compliance Committee, these ‘problems with lack of reporting, late submissions, incomplete reporting, and poor data quality continue to impede the work of the Standing Committee on Research and Statistics (SCRS) in performing stock assessments and in formulating management advice. Late or incomplete reporting causes difficulties for the Secretariat in preparing documents for the Commission and its Panels and Committees, and reduces the efficiency of the Compliance Committee’.

| (30) | Trinidad and Tobago is neither a contracting party nor a cooperating non-contracting party of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). However, CCAMLR identified the country for 2012-2013 as a non-contracting party possibly involved in the harvest, landing and/or trade of Dissostichus spp. but not cooperating with the Catch Documentation Scheme (CDS) (6) implemented in 2000 to track these species from the point of landing throughout the trade cycle. This identification has been maintained in 2014 and 2015 (7). |
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(30)

Trinidad and Tobago is neither a contracting party nor a cooperating non-contracting party of the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR). However, CCAMLR identified the country for 2012-2013 as a non-contracting party possibly involved in the harvest, landing and/or trade of Dissostichus spp. but not cooperating with the Catch Documentation Scheme (CDS) (6) implemented in 2000 to track these species from the point of landing throughout the trade cycle. This identification has been maintained in 2014 and 2015 (7).

| (31) | The facts described in recitals (28) to (30) prevent Trinidad and Tobago from fulfilling its cooperation and conservation obligations as flag State regarding Articles 117 to 119 of UNCLOS. Trinidad and Tobago also appears to fail to fulfil Article 18 of UNFSA which requires States whose vessels fish on the high seas to take control measures to ensure that those vessels comply with RFMO rules. |
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(31)

The facts described in recitals (28) to (30) prevent Trinidad and Tobago from fulfilling its cooperation and conservation obligations as flag State regarding Articles 117 to 119 of UNCLOS. Trinidad and Tobago also appears to fail to fulfil Article 18 of UNFSA which requires States whose vessels fish on the high seas to take control measures to ensure that those vessels comply with RFMO rules.

| (32) | Finally, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, Trinidad and Tobago has not developed a national plan of action against IUU fishing. |
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(32)

Finally, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, Trinidad and Tobago has not developed a national plan of action against IUU fishing.

| (33) | 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 that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures. |
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(33)

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 that, pursuant to Article 31(3) and (6) of the IUU Regulation, there are strong indications that Trinidad and Tobago failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

3.4   Specific constraints of developing countries

| (34) | According to the United Nations Human Development Index (UNHDI) (8), Trinidad and Tobago was considered in 2015 to be a high human development country (ranked 64 out of 188 countries). |
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(34)

According to the United Nations Human Development Index (UNHDI) (8), Trinidad and Tobago was considered in 2015 to be a high human development country (ranked 64 out of 188 countries).

| (35) | Account taken of the above HDI ranking and observations during the 2015 visit, no evidence suggests that the failure of Trinidad and Tobago to discharge its duties under international law is the result of low levels of development. No tangible evidence exists to correlate shortcomings in fisheries monitoring, control and surveillance with poor capacity and infrastructure. Trinidad and Tobago has never argued that development constraints affect their ability to deliver strong MCS. |
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(35)

Account taken of the above HDI ranking and observations during the 2015 visit, no evidence suggests that the failure of Trinidad and Tobago to discharge its duties under international law is the result of low levels of development. No tangible evidence exists to correlate shortcomings in fisheries monitoring, control and surveillance with poor capacity and infrastructure. Trinidad and Tobago has never argued that development constraints affect their ability to deliver strong MCS.

| (36) | In view of the situation explained in this Section 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 Trinidad and Tobago with respect to fisheries management are not impaired by its level of development. |
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(36)

In view of the situation explained in this Section 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 Trinidad and Tobago with respect to fisheries management are not impaired by its level of development.

4.   CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY

| (37) | In view of the conclusions reached with regard to the failure of Trinidad and Tobago to discharge its duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing. |
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(37)

In view of the conclusions reached with regard to the failure of Trinidad and Tobago to discharge its duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third country in fighting IUU fishing.

| (38) | In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Trinidad and Tobago of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Trinidad and Tobago. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation. |
| --- | --- |

(38)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Trinidad and Tobago of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Trinidad and Tobago. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.

| (39) | Furthermore, the notification to Trinidad and Tobago of the possibility of being identified as a country which 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, |
| --- | --- |

(39)

Furthermore, the notification to Trinidad and Tobago of the possibility of being identified as a country which 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,

HAS DECIDED AS FOLLOWS:

Sole Article

The Republic of Trinidad and Tobago shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.

Done at Brussels, 21 April 2016.

For the Commission

Karmenu VELLA

Member of the Commission

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(1)  OJ L 286, 29.10.2008, p. 1.

1

(2)  http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/67.51.pdf

2

(3)  http://rgd.legalaffairs.gov.tt/laws2/alphabetical_list/lawspdfs/51.06.pdf

3

(4)  ICCAT letter, 18 January 2011, ICCAT Circular No 151; ICCAT letter, 21 February 2012, ICCAT Circular No 641; ICCAT letter, 11 February 2013, ICCAT Circular No 613; ICCAT letter, 13 February 2014, ICCAT Circular No 723.

4

(5)  Doc. No COC-308_Appendix 2, 2015.

5

(6)  CCAMLR-XXXII/BG/08, 24 September 2013.

6

(7)  CCAMLR-XXXIV/BG/41, 23 September 2015.

7

(8)  Information retrieved from http://hdr.undp.org/en/statistics

8

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Court of Auditors

| 23.4.2016 | EN | Official Journal of the European Union | C 144/19 |
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23.4.2016

EN

Official Journal of the European Union

C 144/19

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Special Report No 12/2016

‘Agencies’ use of grants: not always appropriate or demonstrably effective’

(2016/C 144/08)

The European Court of Auditors hereby informs you that Special Report No 12/2016 ‘Agencies’ use of grants: not always appropriate or demonstrably effective’ has just been published.

The report can be accessed for consultation or downloading on the European Court of Auditors’ website: http://eca.europa.eu or on EU Bookshop: https://bookshop.europa.eu

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V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF COMPETITION POLICY

European Commission

| 23.4.2016 | EN | Official Journal of the European Union | C 144/20 |
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23.4.2016

EN

Official Journal of the European Union

C 144/20

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Prior notification of a concentration

(Case M.7992 — Starwood Capital Group/Banco Sabadell/JV)

Candidate case for simplified procedure

(Text with EEA relevance)

(2016/C 144/09)

| 1. | On 15 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Starwood Capital Group (‘SCG’ of USA) and Hotel Investment Partnership, S.L. (‘HIP’ of Spain) controlled by Banco de Sabadell, S.A. (‘BS’ of Spain) acquire within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation joint control of HI Partners Starwood Capital Holdco Value Added, S.L. (HPSC JV of Spain) by way of purchase of shares in a newly created company constituting a joint venture. |
| --- | --- |

1.

On 15 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Starwood Capital Group (‘SCG’ of USA) and Hotel Investment Partnership, S.L. (‘HIP’ of Spain) controlled by Banco de Sabadell, S.A. (‘BS’ of Spain) acquire within the meaning of Article 3(1)(b) and Article 3(4) of the Merger Regulation joint control of HI Partners Starwood Capital Holdco Value Added, S.L. (HPSC JV of Spain) by way of purchase of shares in a newly created company constituting a joint venture.

| 2. | The business activities of the undertakings concerned are:
  —   for SCG: investing with a core focus on global real estate. SCG invests in a number of asset classes — including multifamily, office, retail, hotel, industrial, residential and commercial land, senior housing, mixed-use and golf, and in all levels of the capital structure,
  —   for BS: offering banking services to both the retail and business banking markets and, via HIP, operating hotels and offering real estate services. |
| --- | --- |

2.

The business activities of the undertakings concerned are:

—   for SCG: investing with a core focus on global real estate. SCG invests in a number of asset classes — including multifamily, office, retail, hotel, industrial, residential and commercial land, senior housing, mixed-use and golf, and in all levels of the capital structure,

—   for BS: offering banking services to both the retail and business banking markets and, via HIP, operating hotels and offering real estate services.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in this Notice. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under Council Regulation (EC) No 139/2004 (2) it should be noted that this case is a candidate for treatment under the procedure set out in this Notice.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7992 — Starwood Capital Group/Banco Sabadell/JV, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7992 — Starwood Capital Group/Banco Sabadell/JV, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

(2)  OJ C 366, 14.12.2013, p. 5.

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/21 |
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23.4.2016

EN

Official Journal of the European Union

C 144/21

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Prior notification of a concentration

(Case M.7877 — Warburg Pincus/General Atlantic/UniCredit/Santander/SAM/Pioneer)

(Text with EEA relevance)

(2016/C 144/10)

| 1. | On 15 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which affiliates of Warburg Pincus LLC (‘Warburg Pincus’, United States), General Atlantic LLC (‘General Atlantic’, United States), Banco Santander, S.A., (‘Santander’, Spain) and UniCredit S.p.A. (‘UniCredit’, Italy) combine the asset management business of SAM Investment Holdings Limited (‘SAM’) and Pioneer Global Asset Management S.p.A. (together with its subsidiaries, but excluding Pioneer Investment Management USA Inc. and its US subsidiaries as well as certain of its other subsidiaries (‘Pioneer’)), in a full function joint venture controlled by Warburg Pincus, General Atlantic, Santander and UniCredit. SAM is currently a joint venture between Santander and affiliates of Warburg Pincus and General Atlantic. Pioneer is currently solely controlled by UniCredit. |
| --- | --- |

1.

On 15 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which affiliates of Warburg Pincus LLC (‘Warburg Pincus’, United States), General Atlantic LLC (‘General Atlantic’, United States), Banco Santander, S.A., (‘Santander’, Spain) and UniCredit S.p.A. (‘UniCredit’, Italy) combine the asset management business of SAM Investment Holdings Limited (‘SAM’) and Pioneer Global Asset Management S.p.A. (together with its subsidiaries, but excluding Pioneer Investment Management USA Inc. and its US subsidiaries as well as certain of its other subsidiaries (‘Pioneer’)), in a full function joint venture controlled by Warburg Pincus, General Atlantic, Santander and UniCredit. SAM is currently a joint venture between Santander and affiliates of Warburg Pincus and General Atlantic. Pioneer is currently solely controlled by UniCredit.

| 2. | The business activities of the undertakings concerned are:






  — | Warburg Pincus is a global private equity firm, active through its portfolio companies in a variety of sectors, including energy, financial services, healthcare and consumer, industrial and business services, and technology, media and telecommunications; |
| --- | --- | --- |

2.

The business activities of the undertakings concerned are:

—

Warburg Pincus is a global private equity firm, active through its portfolio companies in a variety of sectors, including energy, financial services, healthcare and consumer, industrial and business services, and technology, media and telecommunications;

| — | General Atlantic is a private equity firm, active through its portfolio companies in a variety of sectors, including business services, retail and consumer, financial services, healthcare, internet and technology; |
| --- | --- |

—

General Atlantic is a private equity firm, active through its portfolio companies in a variety of sectors, including business services, retail and consumer, financial services, healthcare, internet and technology;

| — | Santander is the parent company of an international group of banking and financial companies operating mainly in Europe, the US, and Latin America; |
| --- | --- |

—

Santander is the parent company of an international group of banking and financial companies operating mainly in Europe, the US, and Latin America;

| — | UniCredit is the Italian parent company of a banking group providing banking and financial services in Italy and abroad; |
| --- | --- |

—

UniCredit is the Italian parent company of a banking group providing banking and financial services in Italy and abroad;

| — | SAM is an asset management business with operations in 10 countries, both across Europe and Latin America; |
| --- | --- |

—

SAM is an asset management business with operations in 10 countries, both across Europe and Latin America;

| — | Pioneer is an asset management business with operations across Europe and in several non-European countries. |
| --- | --- |

—

Pioneer is an asset management business with operations across Europe and in several non-European countries.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by e-mail to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7877 — Warburg Pincus/General Atlantic/UniCredit/Santander/SAM/Pioneer, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by e-mail to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7877 — Warburg Pincus/General Atlantic/UniCredit/Santander/SAM/Pioneer, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

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| 23.4.2016 | EN | Official Journal of the European Union | C 144/22 |
| --- | --- | --- | --- |

23.4.2016

EN

Official Journal of the European Union

C 144/22

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Prior notification of a concentration

(Case M.7910 — Kesko/Onninen)

(Text with EEA relevance)

(2016/C 144/11)

| 1. | On 18 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Kesko Oyj (‘Kesko’, Finland) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of Onninen Oy (‘Onninen’, Finland) by way of purchase of shares. |
| --- | --- |

1.

On 18 April 2016, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Kesko Oyj (‘Kesko’, Finland) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of Onninen Oy (‘Onninen’, Finland) by way of purchase of shares.

| 2. | The business activities of the undertakings concerned are:
  —   Kesko: retailer with operations in three main business segments: (i) the grocery trade; (ii) the building and home improvement trade as well as specialty goods trade; and (iii) the car trade,
  —   Onninen: active in the distribution of, among others, installation products. |
| --- | --- |

2.

The business activities of the undertakings concerned are:

—   Kesko: retailer with operations in three main business segments: (i) the grocery trade; (ii) the building and home improvement trade as well as specialty goods trade; and (iii) the car trade,

—   Onninen: active in the distribution of, among others, installation products.

| 3. | On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved. |
| --- | --- |

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the Merger Regulation. However, the final decision on this point is reserved.

| 4. | The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.
  Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7910 — Kesko/Onninen, to the following address:





  European Commission |
| --- | --- |
| Directorate-General for Competition |
| Merger Registry |
| 1049 Bruxelles/Brussel |
| BELGIQUE/BELGIË |

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7910 — Kesko/Onninen, to the following address:

European Commission

Directorate-General for Competition

Merger Registry

1049 Bruxelles/Brussel

BELGIQUE/BELGIË

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(1)  OJ L 24, 29.1.2004, p. 1 (the ‘Merger Regulation’).

---