# Commission Implementing Decision of 14 October 2014 identifying a third country that the Commission considers as a non-cooperating            third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate            illegal, unreported and unregulated fishing (2014/715/EU) (repealed)         

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U.K.

# Commission Implementing Decision

# of 14 October 2014

# identifying a third country that the Commission considers as a non-cooperating third country pursuant to Council Regulation                        (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing                     

# (2014/715/EU) (repealed)

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 31 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.(2)Chapter VI of the IUU Regulation lays down the procedure with respect to the identification of non-cooperating third countries,                                 demarches in respect of countries identified as non-cooperating third countries, the establishment of a list of non-cooperating                                 countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any                                 emergency measures.(3)Pursuant to Article 31 of the IUU Regulation, the European Commission may identify third countries that it considers as non-cooperating                                 countries in fighting IUU fishing. A third country may be identified as a non-cooperating third country if it fails to discharge                                 the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter                                 and eliminate IUU fishing.(4)The identification of non-cooperating third countries shall be based on the review of all information as set out under Article                                 31(2) of the IUU Regulation.(5)In accordance with Article 33 of the IUU Regulation, the Council may establish a list of non-cooperating countries. The measures                                 set out in Article 38 of the IUU Regulation apply to those countries.(6)Pursuant to Article 20(1) of the IUU Regulation, third country flag States are requested to notify the Commission of their                                 arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures                                 which must be complied with by their fishing vessels.(7)Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with third countries in areas                                 pertaining to the implementation of the catch certification provisions of that Regulation.(8)In accordance with Article 32 of the IUU Regulation, by Commission Decision of 15 November 2012(2) (Decision of 15 November 2012), the Commission notified eight third countries of the possibility that they could be identified                                 as non-cooperating countries pursuant to the IUU Regulation.(9)In its Decision of 15 November 2012, the Commission included the information concerning the essential facts and considerations                                 underlying such preliminary identification.(10)Also on 15 November 2012, the Commission notified the eight third countries with separate letters of the fact that it was                                 considering the possibility of identifying them as non-cooperating third countries. The Decision of 15 November 2012 was attached                                 to those letters.(11)The Commission underlined, in those letters, that in order to avoid being identified and proposed for formal listing as a                                 non-cooperating third country as respectively provided for Articles 31 and 33 of the IUU Regulation, the third countries concerned                                 were invited to establish and implement, in close cooperation with the Commission, an action plan to rectify the shortcomings                                 identified in the Decision of 15 November 2012. A timely and effective implementation of the action plan by the concerned                                 countries could have avoided them being identified as non-cooperating third countries and proposed for final listing.(12)As a consequence, the Commission invited the eight third countries concerned: (i) to take all necessary measures to implement                                 the actions contained in the action plans suggested by the Commission; (ii) to assess the implementation of the actions contained                                 in the action plans suggested by the Commission; and (iii) to send every six months detailed reports to the Commission assessing                                 the implementation of each action as regards, inter alia, their individual and/or overall effectiveness in ensuring a fully                                 compliant fisheries control system.(13)The eight third countries concerned were given the opportunity to respond in writing to issues explicitly indicated in the                                 Commission Decision as well as to other relevant information. Those countries were allowed to submit evidence to refute or                                 complete the facts invoked in the Decision of 15 November 2012 or to adopt, as appropriate, a plan of action to improve and                                 measures taken to rectify the situation. The eight countries were assured of their right to ask for, or to provide, additional                                 information.(14)Therefore, by its Decision and letters of 15 November 2012, the Commission opened a dialogue process with the eight third                                 countries and indicated that it considered a period of six months as being in principle sufficient for reaching an agreement.(15)The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by                                 the eight third countries following the Decision of 15 November 2012 were considered and taken into account. The eight countries                                 were kept informed either orally or in writing of the Commission's considerations.(16)The Democratic Socialist Republic of Sri Lanka (Sri Lanka) failed to refute the facts invoked by the Commission or to implement                                 the plan of action to rectify the situation.(17)This Commission Implementing Decision identifying Sri Lanka as a third country that the Commission considers as non-cooperating                                 in fighting IUU fishing is the result of an investigation and dialogue process in the context of the implementation of the                                 IUU Regulation. That process complied with the substantive and procedural requirements laid out in that Regulation, which                                 refers, inter alia, to the third country's duties incumbent upon it under international law as flag, port, coastal or market                                 State to prevent, deter and eliminate IUU fishing.(18)The Commission Implementing Decision to identify Sri Lanka as a third country that the Commission considers as a non-cooperating                                 third country in fighting IUU fishing entails the consequences stated in Article 18(1)(g) of the IUU Regulation.

2.**PROCEDURE WITH RESPECT TO SRI LANKA**(19)On 15 November 2012, the Commission notified Sri Lanka pursuant to Article 32 of the IUU Regulation that it considered the                                 possibility of identifying Sri Lanka as a non-cooperating third country(3).(20)The Commission invited Sri Lanka to establish in close cooperation with its services an action plan to rectify the shortcomings                                 identified in its Decision of 15 November 2012.(21)The main shortcoming identified by Commission in the suggested plan of action were related to several failures to implement                                 international law obligations, linked in particular to the adoption of an adequate legal framework, lack of adequate and efficient                                 monitoring, lack of observer scheme, lack of a deterrent sanctioning system, and to improper implementation of the catch certification                                 scheme. Other identified shortcomings relate, more generally to the compliance with international obligations including Regional                                 Fisheries Management Organisations (RFMOs) recommendations and resolutions. A lack of compliance with recommendations and                                 resolutions from relevant bodies such as the International Plan of Action against Illegal, Unreported and Unregulated fishing                                 of the United Nations (IPOA-IUU) was also identified. However, the lack of compliance with non-binding recommendations and                                 resolutions was considered only as supporting evidence and not as a basis for the identification.(22)Through its submission of 14 December 2012, Sri Lanka informed the Commission of institutional arrangements set up in order                                 to address the shortcomings identified in the suggested action plan.(23)Sri Lanka submitted written comments on 31 December 2012 and 4 January 2013.(24)By letter of 7 February 2013, the Commission requested Sri Lanka to provide updated information on key areas of the suggested                                 action plan.(25)On 13 March 2013, the Sri Lankan authorities submitted the following documents: (i) cover letter and explanatory letter; (ii)                                 update on Sri Lanka's timing for all measures to be taken; (iii) updated information on key areas of the suggested action                                 plan; (iv) the 2013 National Plan of Action for the fight against IUU fishing; (v) updates on administrative procedures and                                 guidelines for the use of catch certificates; (vi) the budget allocation 2013 for the establishment of a sub-office of the                                 Quality Control Division of the Department of Fisheries and Aquatic Resources Development in the airport; (vii) draft texts                                 for revised legislation relating to compliance with legal obligation, monitoring of the long distance fleet and deterrent                                 sanctions; (viii) awareness schemes for operators on the catch certification scheme; (xi) inspection scheme and (x) guidelines                                 for procedures to investigate IUU activities in the high seas.(26)Technical consultations between the Commission and Sri Lanka took place on 17 April 2013 in Brussels. During that meeting,                                 the Sri Lankan authorities presented to the Commission its recent National Plan of Action to combat IUU fishing as well as                                 planned measures to improve cross-checking of information contained in catch certificates and the initiated revision of the                                 legal framework.(27)With its submissions on 30 May 2013 and 3 June 2013, Sri Lanka stressed its commitment to timely implementation of a road                                 map, elaborated by Sri Lanka, while adopting the legislative amendments to enhance punitive measures for IUU fishing and initiating                                 the Vessel Monitoring System (VMS) procurement process.(28)Based on the progress detected in the period from November 2012 to early June 2013, the Commission informed Sri Lanka by letter                                 of 11 June 2013 that in order to achieve tangible results addressing the shortcomings highlighted in the Decision of 15 November                                 2012 and concluding the necessary actions, the Commission would maintain the dialogue with Sri Lanka for an additional period                                 of nine months, until 28 February 2014. This letter was followed by an updated proposal for the plan of action by the Commission                                 on 20 June 2013.(29)Sri Lanka submitted a progress report on 22 August 2013 for the period 31 May 2013 to 15 August 2013, followed by a submission                                 on 28 October 2013 with information on adoption procedure for the amended legislation.(30)The Commission visited the Sri Lankan authorities concerned from 28 to 30 January 2014. Those authorities were kept informed                                 of the progress of the situation in line with the Decision of 15 November 2012 and the proposed action plan. During the Commission's                                 visit, the Sri Lankan authorities had the opportunity to make statements and provide relevant documents in response to the                                 Decision of 15 November 2012 and to inform the Commission of the latest developments on the progress of the plan of action.(31)Sri Lanka provided another progress report on 27 March 2014 covering the period 16 August 2013 to 21 March 2014 while submitting                                 the following documents: (i) updated information on key areas of the suggested action plan; (ii) updated timeframe for the                                 implementation of the National Plan of Action in the fight against IUU; (iii) letters from the Ministry of Fisheries and Aquatic                                 Resources Development to the Ministry of External Affairs requesting accession to the FAO Compliance Agreement and investigations                                 of nationals involved in IUU fishing under flags of other states; (iv) request for VMS funding and demonstration of transponder                                 requirement; (v) information on awareness training and (vi) specimens of the revised Fishing Log Book 2014 and inspection                                 plan in ports for Deep Sea and High Seas Fishing Vessels. The information also included the adoption of the revised Fisheries                                 Act by the Sri Lankan Parliament on 5 November 2013. Sri Lanka provided an additional progress report on 1 August 2014 covering                                 the period up to July 2014 which in addition to updated information on key areas of the suggested action plan; and updated                                 timeframe for the implementation of the National Plan of Action in the fight against IUU also contained; a letter from the                                 Ministry External Affairs to the Ministry of Fisheries and Aquatic Resources Development informing that a copy of the instrument                                 of acceptance for accession to the FAO Compliance Agreement will be submitted once the accession has happened; a request to                                 the Attorney General to introduce increased sanctions into the current legislation; 2 letters from the Legal Draftsmen with                                 the revised draft regulations on respectively High Seas Fishing Operations and Fish Catch Data Collection plus a summary of                                 the awareness programmes for high seas skippers and the implementation report to the IOTC on a regional observe scheme. Sri                                 Lanka provided additional information on 29 August 2014 explaining advancements on the established shortcomings (i.e. draft                                 regulations on High Seas Fishing Operations and Fish Catch Data Collection, information Circular on sanctioning, information                                 on observer and inspection programmes and information on progress made on the established shortcomings). Sri Lanka provided                                 new submissions on 18 and 19 September 2014 confirming adoption of regulations on High Seas Fishing Operations and Fish Catch                                 Data Collection, reflection on internal work for drafting a Cabinet Memorandum on deterrent sanction system, reflection on                                 achieving IOTC compliance, information on logbook, inspection and observer coverage and information on possible partial step-by-step                                 introduction of VMS transponders (although the contract with contractor was not yet signed and implemented) to its fishing                                 vessels for the period starting from January 2015 to August 2015.(32)The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by                                 Sri Lanka following the Decision of 15 November 2012 were considered and taken into account while Sri Lanka was kept informed                                 either orally or in writing on the Commission's considerations.(33)In the light of the elements gathered, as shown in recitals 34 to 67, the Commission believes that Sri Lanka has not sufficiently                                 addressed the areas of concern and shortcomings described in the Decision of 15 November 2012. Nor has Sri Lanka fully implemented                                 the measures suggested in the accompanying action plan.

3.**IDENTIFICATION OF SRI LANKA AS A NON-COOPERATING THIRD COUNTRY**(34)Pursuant to Article 31(3) of the IUU Regulation, the Commission has reviewed the compliance of Sri Lanka with its international                                 obligations as flag, port, coastal or market State, in line with the findings of the Decision of 15 November 2012 and with                                 relevant information provided by Sri Lanka, with the proposed plan of action as well as with the measures taken to rectify                                 the situation. For the purpose of this review the Commission has taken into account the parameters listed in Article 31(4)                                 to (7) of the IUU Regulation.3.1.**Recurrence of IUU fishing (Article 31(4)(a) of the IUU Regulation)**(35)As highlighted in recital 292 of the Decision of 15 November 2012, the Commission established that Sri Lanka had no legislation                                 providing for the licensing of high seas fisheries.(36)As mentioned in recital 296 of the Decision of 15 November 2012, 13 Sri Lankan vessels were listed in the draft IUU vessel                                 list of IOTC as they had been caught fishing in breach of the Indian Ocean Tuna Commission (IOTC) conservation and management                                 measures. Since the Decision of 15 November 2012, Sri Lanka has not prohibited its vessels from fishing illegally on the high                                 seas nor has it immediately adopted legislation allowing for high seas fishing and for issuance of licences for high seas                                 fishing in order to avoid the illegal fishing activities of its fishing vessels. Sri Lanka has instead finally adopted a revised                                 Fisheries Act on 5 November 2013 allowing high seas fishing. It drafted implementing legislation for licensing of high seas                                 vessels, this implementing legislation has been adopted in September 2014 (according to submission of authorities) but has                                 not been implemented yet. Sri Lanka has also reduced the number of vessels operating in the IOTC from 3 307 to 1 758 vessels                                 but these vessels are still fishing with an administrative high seas licence and not a legal licence. In this respect, it                                 is recalled that pursuant to Article 18(3)(b)(ii) of the United Nations Fish Stocks Agreement(4) (UNFSA), a flag State must take measures to prohibit fishing on the high seas by its vessels which are not duly licensed                                 or authorised to fish. The current established situation demonstrates clearly that Sri Lanka is not acting in accordance with                                 its international responsibilities as a flag State.(37)Since the Decision of 15 November 2012 according to information retrieved from the IOTC(5), three Sri Lankan flagged vessels, *Malshiri No 1, Gold Marine 5* and *Lakpriya 2* were caught by coastal States in 2013 as presumably involved in IUU activities. It is recalled that, pursuant to Article                                 18(1) and (2) of the UNFSA, the flag State is responsible vis-à-vis its vessels operating on the high seas. In addition, pursuant                                 to Article 118 the United Nations Convention on the Law of the Sea (UNCLOS), a flag State must cooperate in the conservation                                 and management of living resources which is clearly undermined by the presence of its fleet which is operating in IOTC without                                 legal fishing licences and thus conducting IUU activities in line with definitions of Article 2 of the IUU Regulation.(38)Moreover, in 2013 it was found that 13 other Sri Lankan vessels, inspected while transiting through the Exclusive Economic                                 Zone (EEZ) of a coastal State, were in breach of the IOTC conservation and management measures. The Commission considers that                                 the continued fishing by Sri Lankan vessels in breach of conservation and management measures of the IOTC is a clear indication                                 that Sri Lanka has failed to undertake its flag State responsibilities under international law as stated in recital 37.(39)It also demonstrates the failure by Sri Lanka to ensure that fishing vessels entitled to fly its flag do not engage in or                                 support IUU fishing, which is not in line with point 34 of the IPOA-IUU stipulating that States should ensure that fishing                                 vessels entitled to fly their flag do not engage in or support IUU fishing. Furthermore, the existence of the Sri Lankan flagged                                 vessels referred to recitals 36 to 38 also highlights Sri Lanka's failure to fulfil its obligations under Article 19(1) and                                 (2) of the UNFSA pursuant to which a flag State is required to ensure compliance by its vessels flying its flag with RFMO                                 conservation and management rules.(40)The Commission also found that adequate measures in respect of recurrent IUU fishing could not be effectively taken by Sri                                 Lanka due to the shortcomings of its legal framework. It thus suggested, in the action plan, a revision of the legal framework                                 to ensure compliance with international obligations in relation to the high seas; to remedy the lack of sufficient operational                                 means to effectively monitor the Sri Lankan long distance fleet and to create a deterrent sanction scheme.(41)As mentioned in recital 36 of this Decision, Sri Lanka adopted in November 2013 a revised Fisheries Act allowing its vessels                                 to fish outside its EEZ. However, the act required for the implementation of high seas licensing system is still a draft and                                 thus not applicable. Licences are currently issued by the administration without a predetermined procedure in a non-systemic                                 way. In addition, the revised Fisheries Act also provided for increased sanctions on IUU infringements, which could be considered                                 as deterrent only for a part of the Sri Lankan long distance fleet (specifically, for the small scale boats which are fishing                                 outside the Sri Lankan EEZ, for which sanctions might be considered appropriate in view of the limited fishing capacity of                                 these vessels. However, the Sri Lankan fleet of large scale vessels (above 24 meters in length) has increased in 2013 and                                 2014, and the level of sanctions foreseen by the new Fisheries Act which is applicable to this part of the fleet cannot be                                 have considered as being deterrent, these vessels having a fishing capacity from 10 to 20 times larger than that of the smaller                                 vessels. Current legislation(6) foresees a maximum fine of EUR 8 429 (LKR 1 500 000(7)) which cannot be considered effective in securing compliance, to discourage violations and to deprive offenders of the benefits                                 accruing from their illegal activities. Thus, such level of sanctions cannot be considered as being in line with Article 19(2)                                 of the UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the benefits                                 accruing from their illegal activities. The Commission therefore considers that the sanctioning system introduced by Sri Lanka                                 is manifestly inadequate and is clearly not proportionate to the seriousness of possible infringements, to the potential impact                                 of the infringements on the resources and to the potential benefit that could derive from such illegal actions.(42)Consequently, the actions undertaken by Sri Lanka in light of its duties as a flag State are insufficient to comply with the                                 provisions of Articles 118 of the UNCLOS and Articles 18, 19 and 20 of the UNFSA.(43)In view of recitals 292 to 299 of the Decision of 15 November 2012 and the developments after 15 November 2012, the Commission                                 takes the view, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Sri Lanka has failed to discharge its duties                                 under international law as a flag State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels                                 flying its flag or by its nationals and has not taken sufficient action to counter documented and recurring IUU fishing by                                 vessels previously flying its flag.3.2.**Failure to cooperate and to enforce (Article 31(5)(b), (c) and (d) of the IUU Regulation)**(44)As described in recitals 302 to 311 of the Decision of 15 November 2012, the Commission analysed whether Sri Lanka cooperated                                 effectively with the Commission on investigations and associated activities.(45)Concerning the vessels referred to in recital 293 of the Decision of 15 November 2012, Sri Lanka was, as indicated in recital                                 296 of that Decision, obliged to report on a monthly basis on actions taken against those vessels. That reporting only materialised                                 for 9 out of 12 months in 2013 and 2 out of 4 months in 2014. In contravention with the provisions of Article 20 of the UNFSA                                 which sets out obligations of States to investigate, cooperate either directly or through RFMO's to ensure compliance with                                 and enforcement of RFMO conservation and management measures, Sri Lanka has therefore failed to fulfil its obligations under                                 international law with respect to international cooperation and enforcement.(46)As described in recital 302 of the Decision of 15 November 2012 as well as recital 45 above, Sri Lanka did not fulfil its                                 monthly reporting obligations towards the IOTC for the 13 Sri Lankan vessels presumed to be involved in IUU activities but                                 not listed by the IOTC. Thus, Sri Lanka failed to demonstrate that it fulfils the conditions of Article 94(2)(b) of the 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.(47)Additionally, as described in recitals 306 to 307 of the Decision of 15 November 2012, the Commission analysed whether Sri                                 Lanka took effective enforcement measures in respect to operators responsible for IUU fishing and whether sanctions of sufficient                                 severity to deprive the offenders of the benefits accruing from IUU fishing were applied.(48)As explained in recital 41, following the adoption of the Decision of 15 November 2012, Sri Lanka did not put in place a deterrent                                 sanctioning system for the segment of large vessels in its fleet. The current catalogue of sanctions is not in line with Article                                 19(2) of the UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the                                 benefits accruing from their illegal activities.(49)Available evidence still confirms that Sri Lanka has not fulfilled its obligations under international law with respect to                                 effective enforcement measures. In this respect, as explained in recitals 36 to 38 the continued existence of vessels fishing                                 in breach of conservation and management measures of the IOTC highlights Sri Lanka's failure to honour its responsibilities                                 vis-à-vis its vessels operating on the high seas as set out in Article 18(1) and (2) of the UNFSA.(50)As highlighted in recital 309 of the Decision of 15 November 2012, the level of development of Sri Lanka cannot be considered                                 as a factor undermining the capacity of the competent authorities to cooperate with other countries and pursue enforcement                                 actions. The evaluation of the specific constraints on the development is further described in recitals 65 to 67.(51)Consequently, the actions taken by Sri Lanka in light of its duties as flag State are insufficient to comply with Articles                                 94(2)(b) of the UNCLOS and Article 18 and 19 of the UNFSA.(52)In view of recitals 302 to 311 of the Decision of 15 November 2012 and the developments after 15 November 2012, the Commission                                 takes the view, pursuant to Article 31(3) and 31(5)(b), (c) and (d) of the IUU Regulation, that Sri Lanka has failed to discharge                                 the duties incumbent upon it 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)**(53)As described in recitals 314 to 334 of the Decision of 15 November 2012, the Commission analysed any information deemed relevant                                 with respect to Sri Lanka's status as Contracting Party to the IOTC. The Commission has therefore analysed any information                                 deemed relevant with respect to Sri Lanka's agreement to apply conservation and management measures adopted by the IOTC following                                 the Decision of 15 November 2012.(54)It is recalled that since the Decision of 15 November 2012, the IOTC issued annual Compliance Reports for respectively 2013(8) and 2014(9), which show that Sri Lanka is still not compliant or only partially compliant in the years 2012 and 2013.(55)With respect to the Compliance Report for 2013, Sri Lanka failed to submit some of the information required on statistics                                 and on some conservation and management measures.(56)In particular, as regards the IOTC Resolution 10/08(10) for the list of active vessels, Sri Lanka did not provide information on the international radio call sign for each vessel.                                 As regards the IOTC Resolution 06/03(11) on the adoption of a vessel monitoring systems (VMS), Sri Lanka failed to equip its vessels above 15 meters in overall length                                 with VMS and to construct a Fisheries Monitoring Centre (FMC). Nor has Sri Lanka submitted the mandatory VMS progress report.                                 Regarding the IOTC Resolution 10/02(12) on the mandatory statistical requirements, Sri Lanka has not reported the size frequency data for coastal fisheries and has                                 not reported nominal catch, catch and effort data and size frequency at the standard required by that Resolution for the coastal                                 fisheries, surface fisheries and longline fishery. As regards the IOTC Resolution 05/05(13) on the submission of data regarding sharks, Sri Lanka is only partly compliant, as catch data for gillnet and longline are                                 reported combined.As regards the IOTC Resolution 12/05(14) on transhipments in port, Sri Lanka has not provided the mandatory report.As regards the IOTC Resolution 11/04 on the observers(15), Sri Lanka has not implemented the regional observer scheme as required by this Resolution. In particular, Sri Lanka has                                 not established the observer scheme for the mandatory 5 % at sea for the vessels longer than 24 m and is not in compliance                                 with the observer reporting obligation.(57)With respect to the Compliance Report for 2014, Sri Lanka did not submit some required information on statistics, nor on some                                 conservation and management measures.(58)In particular, as regards the IOTC Resolution 13/02(16), Sri Lanka has not adopted legislation making gear marking mandatory. Regarding IOTC Resolution 13/08(17), Sri Lanka has not submitted a Fish Aggregating Devices (FADs) management plan, nor have any legal and administrative measures                                 been taken for the 8 purse seiners as required under IOTC Resolution 12/13(18). Again in 2014, as regards the IOTC Resolution 06/03(19), Sri Lanka has not equipped its vessels above 15 meters in overall length with VMS, nor constructed an FMC and nor has the                                 mandatory VMS progress report been submitted.Regarding IOTC Resolution 10/02 on the mandatory statistical requirements Sri                                 Lanka has not reported nominal catch, catch and effort data and size frequency at the standard required by this Resolution.As                                 regards IOTC Resolutions 13/06(20) and 12/04(21), Sri Lanka has not transposed prohibition on oceanic whitetip sharks nor has it implemented the obligations for purse seiners                                 to carry dip nets and for longliners to carry line-cutters and de-hookers. Also repeated in 2014, as regards the Resolution                                 11/04(22), Sri Lanka has not implemented the observer scheme as required.In particular, Sri Lanka has not established the observer                                 scheme for the mandatory 5 % at sea for the vessels longer than 24 meters and is not in compliance with the observer reporting                                 obligation. Regarding IOTC Resolution 10/10(23), Sri Lanka has not provided the report on import, landing, transhipment of tuna and tuna-like fish products in ports.(59)Sri Lanka's failure to provide the IOTC with the required information and to fulfil the IOTC obligations as referred to in                                 recitals 56 and 58 demonstrates its failure to fulfil its obligations as flag State laid down in the UNCLOS and the UNFSA.                                 In particular, the failure to provide timely information on statistics, VMS, catch and effort, transhipment in port, observer                                 programme undermines Sri Lanka's ability to fulfil its obligations under Articles 117 and 118 of the UNCLOS. Those articles                                 stipulate a State's duties to adopt measures for their nationals for the conservation of living resources of the high seas                                 and to cooperate on conservation and management measures for living resources in the areas of the high seas.(60)As described in recital 322 of the Decision of 15 November 2012, a number of elements were revealed during the Commission's                                 visit to Sri Lanka in November 2010, in particular regarding the lack of VMS and the lack of legislation for catch reporting.                                 Other elements of concern, such as lack of observer scheme and the poor reporting on vessels and nationals identified as involved                                 in IUU fishing were highlighted in recitals 319 and 321 of the Decision of 15 November 2012 as a result of the IOTC Compliance                                 Reports for 2011 and 2012.In that regard, the information submitted by the Sri Lankan authorities in relation to the high                                 seas fishing legislation, creation of a functional VMS, a reliable observer scheme and catch registration and reporting revealed                                 that the authorities have not ensured effective and efficient control and monitoring of the Sri Lankan flagged vessels in                                 line with international obligations. In particular as indicated in recitals 36, 40 and 41, Sri Lanka was invited to develop                                 a thorough legal framework for allowing fishing in high seas accompanied by high seas fishing licences and the fulfilment                                 of the IOTC resolutions, in particular with respect to monitoring, control and surveillance of its own fleet, including a                                 VMS, logbook and catch reporting system and an observer scheme.With regards to the high seas fishing legislation, the Fisheries                                 Act was amended to allow for fishing in the high seas and the implementing regulation for issuance licence was drafted and                                 finally adopted in September 2014. However, as the implementing regulation was only adopted in September 2014 and no information                                 exists on how it would be implemented, only administrative licences are being issued while Sri Lankan vessels operate with                                 no VMS. As for the regional observer scheme, the documents provided by Sri Lankan authorities revealed that despite the selection                                 and recruitment of some inspectors, a large part of the fleet will not be covered due to the small number of inspectors (45)                                 compared to the large number of the vessels (1 758 in IOTC register of vessels). Sri Lanka has nevertheless not made any proposals                                 to address this serious problem in the context of the IOTC which means that there is no proper coverage of the Sri Lankan                                 flagged fleet operating in the high seas because of inadequate means of inspection.In that respect, it is also recalled that                                 Sri Lanka has serious problems in reporting data to the IOTC which undermines the country's capacity to exercise its obligations                                 as flag State.(61)In relation to the VMS, as described in recitals 316, 321 and 322 of the Decision of 15 November 2012 and recital 60 of this                                 Decision, the Commission recalls various problems highlighted by the IOTC. Following the Decision of 15 November 2012, Sri                                 Lanka stated that it was in the process of introducing VMS. It submitted to the Commission the legislation demonstrating the                                 requirement of a transponder on board as of 1 November 2011 and indicated that a service provider had already been selected.                                 However, the funding was not in place and negotiations between the Sri Lankan authorities and the relevant financial institution                                 have been on-going for more than 18 months. The negotiations concern the terms and conditions of a loan to purchase and install                                 an FMC and provide financial assistance to operators to install and operate within a reasonable time period VMS for the entire                                 high seas fleet. As a result, Sri Lanka does not have an FMC. In addition, the VMS is still under development and has never                                 become operational. The Commission established during its visit in January 2014, as confirmed by Sri Lanka's subsequent submissions                                 and the IOTC Compliance Reports 2013 and 2014, that Sri Lankan fishing vessels are still not fitted with VMS. As for compliance                                 with the IOTC's VMS requirements, there are discrepancies between the IOTC Compliance Reports for 2013 and 2014 and Sri Lanka's                                 actions. The Compliance Reports claim partial compliance while the information provided by Sri Lanka clearly shows that there                                 has been no actual implementation of a VMS. Therefore, Sri Lanka does not fulfil the conditions stipulated in Article 18(3)(g)                                 of the UNFSA in view of the information gathered on the monitoring, control and surveillance abilities of the Sri Lankan authorities,                                 in particular on its operational ability to manage its fleet and the development and implementation of a functional VMS.(62)The facts set out in Section 3.3 demonstrate that Sri Lanka is in breach of Article 18(3) of the UNFSA.(63)Consequently, Sri Lanka in light of its duties as flag State has insufficiently complied with Articles 117, 118 of the UNCLOS                                 and Article 18(3) of the UNFSA.(64)In view of recitals 314 to 334 of the Decision of 15 November 2012 and the developments after that Decision, the Commission                                 takes the view, pursuant to Article 31(3) and (6) of the IUU Regulation, that Sri Lanka has 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**(65)It is recalled that, according to the United Nations Human Development Index(24), Sri Lanka is considered as a medium human development country (92nd in 186 countries). That is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the                                 Council(25) where Sri Lanka is listed in the category of lower middle income countries.(66)As described in recital 337 of the Decision of 15 November 2012, no corroborating evidence has been found to suggest that                                 Sri Lanka's failure to discharge its duties under international law is the result of lacking development. After 15 November                                 2012 no additional concrete evidence was submitted to demonstrate that the identified shortcomings are a consequence of the                                 lack of capacity and administrative infrastructure.(67)In view of recitals 336 to 337 of the Decision of 15 November 2012 and the developments after 15 November 2012, the Commission                                 takes the view, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Sri                                 Lanka with respect to fisheries are not impaired by its level of development.

4.**CONCLUSION ON THE IDENTIFICATION OF A NON-COOPERATING THIRD COUNTRY**(68)In view of the conclusions reached with regard to Sri Lanka's failure 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 identified,                                 in accordance with Article 31 of the IUU Regulation, as a country the Commission considers to be a non-cooperating third country                                 in fighting IUU fishing.(69)Having regard to Article 18(1)(g) of the IUU Regulation, the competent authorities of the Member States are bound to refuse                                 the importation into the Union of fishery products without having to request any additional evidence or send a request for                                 assistance to the flag State where they become aware that the catch certificate has been validated by the authorities of a                                 flag State identified as a non-cooperating State in accordance with Article 31 of that Regulation. The adverse impact to trade                                 should, to the extent possible, be gradually phased in, in order to facilitate in the period between the entry into force                                 of this Commission Implementing Decision and the possible measures taken by the Council, the adjustment by parties to the                                 new situation and to provide economic operators the appropriate time to adapt, given the special characteristics of the fishery                                 products from Sri Lanka and of the Sri Lankan supplying enterprises, among others their small and medium size. Consequently,                                 the application of this decision should be postponed by three months. Such a postponement should not have any impact on the                                 need for swift measures by the Council to address expeditiously the situation in Sri Lanka related to IUU fishing.(70)It should be stated that the identification of Sri Lanka as a country the Commission considers to be non-cooperating for the                                 purposes of this Decision does not preclude any subsequent step taken by the Commission or the Council for the purpose of                                 establishment of a list of non-cooperating countries.(71)In the event that the Council should place Sri Lanka on the list of non-cooperating third countries in accordance with the                                 provisions of Article 33 of the IUU Regulation, this preceding identification Decision would become obsolete.

5.**COMMITTEE PROCEDURE**(72)The measures provided for in this Decision are in accordance with the opinion of the Committee for Fisheries and Aquaculture,

HAS ADOPTED THIS DECISION:

# Article 1U.K.

The Democratic Socialist Republic of Sri Lanka is identified as a third country that the Commission considers as a non-cooperating                     third country in fighting illegal, unreported and unregulated fishing.                  

# Article 2U.K.

This Decision shall enter into force on 14 January 2015.

Done at Brussels, 14 October 2014.

*For the Commission*                            

*The President*                            

José Manuel Barroso                            

1

OJ L 286, 29.10.2008, p. 1.                           

2

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

3

Letter to the Minister of Fisheries and Aquatic Resources Development of Sri Lanka of 15 November 2012.

4

The 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                           

5

http://iotc.org/meetings/11th-session-compliance-committee-coc11

6

Fisheries and Aquatic Resources (amendment) Act, No 35 of 2013

7

8 429 EUR based on the exchange rate of 27 May 2014

8

IOTC Compliance Report for Sri Lanka, Compliance Committee Session 10, 2013, CoC10-CR25

9

IOTC Compliance Report for Sri Lanka, Compliance Committee Session 11, 2014, CoC11-CR25 Rev1.

10

Resolution 10/08 Concerning a record of active vessels fishing for tunas and swordfish in the IOTC area

11

Resolution 06/03 on establishing a vessel monitoring system programme.

12

Resolution 10/02 Mandatory statistical requirements for IOTC Members and Cooperating Non-Contracting Parties (CPC's).

13

Resolution 05/05 concerning the conservation of sharks caught in association with fisheries managed by IOTC.

14

Resolution 12/05 on establishing a programme for transhipment by large-scale fishing vessels.

15

Resolution 11/04 on a regional observer scheme.

16

Resolution 13/02 concerning the IOTC record of vessels authorised to operate in the IOTC area of competence.

17

Resolution 13/08 Procedures on a fish aggregating devices (FADs) management plan, including more detailed specifications of                              catch reporting from FAD sets, and the development of improved FAD designs to reduce the incidence of entanglement of non-target                              species.                           

18

Resolution 12/13 for the conservation and management of tropical tunas stocks in the IOTC area of competence.

19

Resolution 06/03 on the adoption of a VMS and on VMS progress report.

20

Resolution 13/06 on a scientific and management framework on the conservation of sharks species caught in association with                              IOTC managed fisheries.                           

21

Resolution 12/04 on the conservation of marine turtles.

22

Resolution 11/04 on a regional observer scheme

23

Resolution 10/10 concerning market related measures.

24

For reference to UN Human Development Index see (ranking of countries mentioned in this Decision updated in line with the                              last available UN report): http://hdr.undp.org/en/media/HDR2013_EN_Summary.pdf                           

25

Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument                              for development cooperation (OJ L 378, 27.12.2006, p. 41).