COMMISSION DECISION

of 2 June 2021

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

(2021/C 215 I/03)

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.

(2) Chapter VI of the IUU Regulation lays down the procedure concerning the identification of non-cooperating third countries in fighting IUU fishing, 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) Pursuant to Article 31 of the IUU Regulation, the Commission is to identify the 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) Prior to identifying third countries as non-cooperating under Article 31 of the IUU Regulation, the Commission is to first notify third countries of the possibility of being identified as non-cooperating countries in accordance with Article 32 of the said Regulation. This notification is of a preliminary nature.

(5) The notification of third countries of the possibility of being identified as non-cooperating countries is also to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is to take into account all the démarches set out in Article 32 of the IUU Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and reasons for the identification as well as provide the third countries concerned with the opportunity to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and the measures taken to rectify the situation. The Commission is to give to the third countries concerned adequate time to answer the notification and a reasonable time to remedy the situation.

(6) The identification of non-cooperating third countries under Article 31 of the IUU Regulation is to be based on the review of all information as set out under Article 31(2) of that Regulation. It is to be based on the review of all information obtained pursuant to the IUU Regulation or, as appropriate, any other relevant information, such as the catch data, trade information obtained from national statistics and other reliable sources, vessel registers and databases, catch documents or statistical document programmes and IUU vessel lists adopted by regional fisheries management organisations (RFMOs), as well as any other information obtained in the ports and on the fishing grounds.

(7) In accordance with Article 33 of the IUU Regulation, the Council is to decide on a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply in respect of those identified countries. Pursuant to Article 20(1) of the IUU Regulation, the acceptance of catch certificates validated by a third flag State is subject to the condition that the Commission has received a notification from the flag State concerned certifying that it has in place arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels.

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

2. PROCEDURE WITH RESPECT TO THE REPUBLIC OF GHANA

(9) The Republic of Ghana (‘Ghana’) submitted its notification as a flag State pursuant to Article 20 of the IUU Regulation and it was accepted by the Commission on 1 January 2010.

(10) In the context of the administrative cooperation provided for in Article 20(4) of the IUU Regulation, from 28 May 2013 to 23 September 2013, the Commission cooperated with the authorities of Ghana to verify information concerning Ghana’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures, which had to be complied with by its fishing vessels, and measures taken by Ghana in order to implement its obligations in the fight against IUU fishing.

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

(12) After examining all the factual elements gathered and all the statements made by the country, the Commission established, pursuant to Article 31(4) to (7) of the IUU Regulation, that Ghana had failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(13) Accordingly, by virtue of the Commission Decision 2013/C 346/03 (2) Ghana was notified of the possibility of being identified as a non-cooperating third country in the fight against IUU fishing.

(14) Ghana was invited to cooperate with the Commission on the basis of a proposed action plan to rectify the shortcomings identified.

(15) In the framework of the bilateral dialogue that followed from the Decision 2013/C 346/03, Ghana submitted oral and written comments that were taken into account by the Commission. The Commission continued to seek and verify all information it deemed necessary.

(16) Ghana introduced the necessary measures for the cessation of IUU fishing activities in question and their prevention, rectifying any act or omission leading to the notification of the possibility of being identified as non-cooperating country in fighting IUU fishing.

(17) As a result, by notice dated 1 October 2015, the Commission decided to conclude the démarches vis-à-vis Ghana pursuant to the provisions of Article 32 of the IUU Regulation with respect to the discharge of its duties incumbent upon it under international law as flag, port, coastal or market State and their actions to prevent, deter and eliminate IUU fishing (3).

(18) The Commission, however, emphasized that the termination of démarches did not preclude any subsequent step by the Commission or the Council in the future, in case factual elements would reveal that Ghana would fail 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.

(19) On 2 March 2016, Ghana and the Commission agreed to establish a working group dedicated to cooperate in the fight against IUU fishing. On that date, they also agreed on the terms of reference for such working group. Four meetings of this working group were held during the period 2016-2019. Two intersessional video conferences took place between 2019 and 2020.

(20) The meetings covered issues pertaining to actions taken by Ghana to fight IUU fishing, including the implementation of the fisheries management framework, monitor, control and surveillance measures, control and enforcement of laws, regulations and conservation and management measures which must be complied with by Ghanaian fishing vessels. The meetings also covered the revision of the legal framework.

(21) The follow-up to these meetings entailed exchange of written comments where the Commission sought and verified all information deemed necessary concerning the measures taken by Ghana in order to implement its obligations in the fight against IUU fishing. Furthermore, the European Union Delegation to Ghana conducted three field missions during the period 2019-2020.

(22) Ghana is a State party to the 1982 United Nations Convention on the Law of the Sea (UNCLOS), the 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) (4)and the Agreement on Port State Measures to prevent, deter and eliminate illegal, unreported and unregulated fishing (PSMA) (5). Ghana became party to the Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (Compliance Agreement) on 12 May 2003 (6). Ghana adopted a National Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing on the basis of the International Plan of Action to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (IPOA-IUU) in May 2014 (7).

(23) Ghana is a Contracting Party to the International Commission for the Conservation of Atlantic Tunas (ICCAT), the Fishery Committee of the West Central Gulf Guinea (FCWC) and the Fishery Committee for the Eastern Central Atlantic (CECAF), which are both subregional fisheries advisory bodies.

(24) In order to evaluate the compliance of Ghana with its international obligations as flag, port, coastal or market State as set out in the international arrangements referred to in recital 22, the Commission sought, collected and analysed all necessary information required for the purpose of this exercise.

3. POSSIBILITY OF GHANA BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY

(25) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Ghana as flag, port, coastal and market State. For the purpose of this review, the Commission took into account the criteria laid down in Article 31(4) to (7) of the IUU Regulation.

3.1. Measures taken in respect of recurrence of IUU fishing activities and IUU trade flows (Article 31(4) of the IUU Regulation)

(26) In accordance with Article 31(4)(a) of the IUU Regulation, the Commission analysed the measures taken by Ghana with respect to any recurrent IUU fishing activity carried out or supported by fishing vessels flying its flag or by its nationals, or by fishing vessels operating in its maritime waters or using its ports.

(27) On the basis of publically available information and data provided by the relevant authorities of Ghana, transhipments at sea in Ghanaian waters are forbidden by the Fisheries Regulations, 2010 (L.I 1968). However, the Commission established that transhipments at sea between industrial trawl vessels and canoes are a common practice in the waters under jurisdiction of Ghana. Regulation 33(2) of the Fisheries Regulations, LI 1968 bans transhipment of fish from industrial vessel to a semi-industrial vessel or canoe or vice versa. Furthermore, Regulation 33(4) of the Fisheries Regulations, LI 1968 provides that fishing vessels of 50 gross registered tonnage and above or licensed as industrial vessels are to land their catches at approved ports in the country. Regulation 33 of the Fisheries Regulations, LI 1968 was enacted pursuant to Section 139 of the Fisheries Act, 2002 (Act 625). Section 139(1)(g) of that Act allows the Minister to make regulations on transhipment. In addition, the authorities of Ghana confirmed the illegal nature of these transhipment operations in the 2020 Budget Statement by stating that all domestic and international fleet that are involved in saiko (8) are to be banned from fishing in Ghanaian waters (9).

(28) As per publically available information as well as that provided by the relevant authorities of Ghana, many industrial trawlers operating in Ghanaian waters target large quantities of juvenile undersized pelagic species, such as sardinella, in contravention to Section 89(1)(c) of the Fisheries Act, 2002 (Act 625). Section 89(1)(c) provides that a person should not knowingly take any juvenile fish during fishing. Furthermore, Regulation 14 of the Fisheries Regulations, LI 1968 states that a person is not to catch or land at any landing site in the country, fish of a size of less than the prescribed length as provided in Table 1 of the Schedule to the Fisheries Regulations, LI 1968. Table 1 of the Schedule provides for the minimum landing sizes of commercially important fish species. In addition, Regulation 31 states that a person who catches any juvenile fish as by-catches or incidental catches is to release them immediately to their natural habitat or environment in a manner that causes them no harm (10).

(29) Contrary to the Fisheries Regulations referred to in recital 27, these catches are either dumped at sea or frozen in blocks and transhipped to special adapted canoes, which are then landed and sold back to local communities for profit.

(30) All industrial trawlers are required to carry an observer on board since 1 March 2018 pursuant to Section 100 of the Fisheries Act, 2002 (Act 625) and Regulation 35 of the Fisheries Regulations, LI 1968, but this measure has not proved to be sufficient to eliminate the illegal transhipments. These IUU fishing activities are suitably documented by the field missions referred to in recital 21, a study conducted by the Food and Agriculture Organisation (FAO) (11), and open sources information. This issue was also discussed with the relevant authorities of Ghana in the meetings of the Working Group mentioned in recital 19.

(31) Ghana’s failure to effectively tackle IUU fishing, notably illegal transhipments, is inconsistent with its coastal State obligations under UNCLOS, specifically in relation to the sustainable conservation and management of living resources as provided in Articles 61(2) and (3), as well as to the duties Ghana signed up to with the accession to UNFSA in 2017.

(32) Furthermore, Ghana failed to take into consideration the recommendations in paragraph 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 vessel monitoring system (VMS) in accordance with the relevant national, regional and international standards. On 21 October 2020, the EU Delegation visited the FCWC Regional Monitoring, Control and Surveillance Centre (RMCSC) at its premises in Tema. The Ghanaian Fisheries Monitoring Centre (FMC) – located in the same premises – was inactive. This could indicate that Ghana is not in position to exercise an adequate control over its vessels. In April 2017, a World Bank mission also pointed to an overall disinclination of the authorities of Ghana to make use of the abundant information generated by the VMS (12). In addition, the National Plan for Fisheries Inspections is outdated, as it covers only the years 2015 and 2016. This indicates that Ghana failed to fulfil the conditions of Article 94 of the UNCLOS which establishes that it is a duty of the flag State to exercise control over each ship flying its flag.

(33) In light of the information mentioned above, the Commission concluded that Ghana failed to fulfil its responsibilities as flag State to prevent its fleet from engaging in IUU fishing activities. This is in breach of Article 94(1) and (2) of UNCLOS, which provides that every State is to effectively ensure its jurisdiction and control over ships flying its flag.

(34) In addition, in accordance with Article 91 of UNCLOS, there must exist a genuine link between the flag State and the vessel. According to Section 47 of the Fisheries Act, 2002 (Act 625) a local industrial or semi-industrial vessel should be owned or controlled by a citizen of Ghana or by the Government or owned or controlled by a company or partnership registered by law in Ghana, having its principal place of business in Ghana and the share of which is beneficially owned by the Ghanaian Government, a citizen, a public corporation established by law in Ghana or a combination of any of them (13). Section 47 of the Fisheries Act, 2002 (Act 625) also states that the vessel is to be registered in Ghana. However, in case of the trawl industrial sector, as per public available information and exchange with the Ghanaian authorities, there are indications that the required genuine link may not exist and the relevant national legislation may not be complied with.

(35) Pursuant to Article 31(4)(b) of the IUU Regulation, the Commission examined the measures taken by Ghana in respect of access of fisheries products stemming from IUU fishing to its market and subsequent trade flows.

(36) Given the information mentioned in recitals (27) to (32), the Commission considers that Ghana cannot ensure that fishery products entering its market do not stem from IUU fishing. For instance, during the field visits in October 2020 referred to in recital 21 it was witnessed the unloading of a big canoe without any fishing gear or net at Elmina port. Slabs of frozen fish of about 60 × 40 cm were out-loaded from the storage compartments in the hull, and fishmongers traded them immediately in front of the canoe. The canoes did not have any generator or fridge to create those slabs, they were simply covered with blankets. Furthermore, the analysis of the two slabs of frozen fish bought at the Elmina fish landing site on those opportunities showed that out of the 705 individual fish contained, 60 % of individuals were from species of commercial importance, such as small pelagic, including the severely depleted Sardinella aurita and other coastal pelagic species. All of these individuals were below the minimum permitted landing size as stipulated in Regulation 14 of the Fisheries Regulations, LI 1968 and Table 1 of the Schedule to these Regulations. The quantities of juvenile small pelagic in the catches were indicative of the use of mesh sizes/fishing gears prohibited under national legislation. These observations are similar to those of other open source information and FAO study referred to in recital 30 as well as with information provided by the authorities of Ghana.

(37) Moreover, as mentioned in recital 9, Ghana is entitled to validate catch certificates accompanying fishery products caught by Ghana-flagged vessels to the Union market. The European Fisheries Control Agency (EFCA) carried out an analysis of sample of catch certificates and processing statements validated by Ghana in 2019. EFCA concluded that the validation of the catch certificates by the Ghanaian competent authorities raised serious doubts concerning the internal procedures in place due to the lack of or inconsistency of information validated in the catch certificates.

(38) EFCA identified numerous shortcomings in the catch certificates analysed, such as cases with catch dates declared as occurring after the expiry date of the fishing licence; no reference to national conservation and management measures in the landing certificate although the fishing vessels had operated within one or more exclusive economic zones (EEZs); cases where the accompanying Annex ‘attachment to domestically processed fishery products’ mentioned a final destination country other than the one to which the consignment was sent; inconsistencies in filling out the templates of the of catch certificate; inconsistent and contradictory data in the Vessels Landing Certificates for fishing vessels activities, including data on presumed fishing activities in third countries’ EEZs with no reference to fishing licence issued by the third countries. These findings led to the conclusion that verifications prior to the validation of catch certificates cannot ensure that fishery products exported do not stem from IUU fishing.

(39) The Commission concluded that the information related to the origin and traceability of the fishery products caught by Ghanaian-flagged vessels was not accurate and reliable. Ghana has failed to enforce rules to ensure traceability of fish or fishery products through the market in accordance with paragraphs 71 and 72 of the IPOA-IUU.

(40) In view of the considerations presented in this section and on the basis of all factual elements gathered by the Commission as well as all the statements made by the competent authorities of Ghana, it could be established, pursuant to Article 31(3) and 31(4)(a) and (4)(b) of the IUU Regulation, that Ghana fails to discharge its duties under international law as flag, coastal and market State in respect of IUU fishing carried out or supported by fishing 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)

(41) Under Article 31(5)(a) of the IUU Regulation, the Commission analysed its collaboration with Ghana to see if the authorities had effectively cooperated in responding to questions, providing feedback or investigating matters concerning IUU fishing and related activities.

(42) During the four meetings of the working group referred in recital 19, the authorities of Ghana have been in general cooperative in responding and providing feedback to requests for information. However, some of the pieces of information provided were not accurate. For example, in March 2020, the authorities of Ghana indicated, following a request from the Commission made back in November 2019, that vessels YU FENG 1 (IMO Number 8561933), YU FENG 3 (IMO 8561945) and YU FENG 4 (IMO 8561957) were awaiting for registration in the Ghana Ship Register. Nevertheless, according to open sources databases, such vessels had been registered in Ghana since October 2019. This information was afterwards confirmed by the authorities of Ghana in June 2020, following information sent by the Commission extracted from these databases.

(43) Moreover, during the third meeting of the working group in 2018, the Commission and Ghana agreed to hold quarterly videoconferences to ensure a continuous and dynamic exchange on issues of common interest. Further to the video conference held in January 2019, the Commission attempted to organise follow-up discussions in the subsequent months. However, such discussions proved impossible to be organised until the fourth meeting of the working group in November 2019, given the repetitive unavailability of the authorities of Ghana.

(44) Following a failed attempt of holding a video conference in June 2020, the Commission sent written questions to the authorities of Ghana. While Ghana provided responses, some of these did not sufficiently addressed the issues raised, in particular in relation to the control, the detection of infringements and the enforcement of sanctions in cases linked to illegal transhipments at sea in Ghanaian waters. The Commission re-sent the left open question in August 2020, but the authorities of Ghana has not yet provided a response.

(45) In accordance with Article 31(5)(b) of the IUU Regulation, the Commission analysed existing enforcement measures to prevent, deter and eliminate IUU fishing.

(46) The current sanctioning system is based on the Fisheries Act, 2002 (Act 625), as amended by the Fisheries (Amendment) Act, 2014 (Act 880), the Fisheries Regulation, 2010 (L.I. 1968) and the Fisheries (Amendment) Regulations, 2015 (L.I. 2217). The adoption of these amendments to the legal instruments were crucial for the termination of the demarches vis-à-vis Ghana in October 2015. However, Ghana has not duly implemented and enforced these instruments.

(47) The Fisheries Act, 2002 (Act 625) as amended by the Fisheries (Amendment) Act, 2014 (Act 880) establishes in Section 88A the list of actions that are considered IUU fishing, including fishing in a closed area, using prohibited or non-compliant fishing gear, transhipment or landing undersized fish, transhipping with another fishing vessel that has engaged in IUU fishing. Moreover, Section 88A establishes that a person that engages in IUU fishing activities is liable on summary conviction to a fine not less than USD 1 000 000 and no more than USD 2 000 000 for a first contravention. The fine increases to USD 2 000 000 and not more than USD 4 000 000 for a second contravention. In addition, a licence or authorisation issued in respect of the fishing vessel concerned is to be suspended for six months from the date of the conviction. Furthermore, Section 88A establishes a fine of not less than USD 2 000 000 and not more than USD 4 000 000 for a third contravention and the revocation of any licence or authorisation as well as immediate steps to delete the name of the fishing vessel from the Ghana Shipping Registry. Section 116 of the Fisheries Act, 2002 (Act 625) provides for the compounding of offences and administrative penalties should the person admit in writing to having committed the offence and express willingness that the offence be so dealt with. The offender should pay a sum of money of not less than the minimum penalty specified for the offence plus the fair market value of any fish caught illegally. The sum should be paid within 30 days, otherwise the case is reverted to court.

(48) The information gathered by the Commission and in particular the exchanges with the authorities of Ghana revealed that the sanctions imposed to vessels engaging or supporting IUU fishing activities are not effective and deterrent in line with UNFSA and Compliance Agreement obligations binding upon Ghana. Out of 19 cases heard on out of court settlement in 2018 and 2019 for infractions of industrial trawlers covering transhipment or landing undersized fish, transhipping and juvenile on board, using prohibited or non-compliant fishing gear, in only one case the minimum USD 1 000 000 fine was imposed. In the other cases, fines imposed ranged from GHS 6 000 –the equivalent to EUR 950 – to GHS 700 000 – the equivalent to EUR 110 000.

(49) An industrial trawler was arrested in June 2018 for fishing in the inshore exclusive zone in contravention to Section 81(3) of the Fisheries Act, 2002 (Act 625). Section 81 establishes a fine for this violation of not less than USD 10 000 and not more than USD 100 000 when committed by a local industrial fishing vessel. According to the information provided by the authorities of Ghana in the latest exchanges, the GHS 48 000 (USD 10 140 or EUR 8 633 at the time) fine was imposed through administrative proceedings in August 2018. As per Section 116 of the Fisheries Act, 2002 (Act 625), administrative penalties should be paid within 30 days. Otherwise, the case is reverted to court. The fine has not been paid. In November 2019, the same industrial trawler was detained again for dumping of fish, using undersized mesh, juvenile fish on board, transhipment at sea and unreported catch. The case has been deferred to a court.

(50) In another case, an industrial trawler was arrested in June 2019 for juvenile fishing, unreported catch on board and fishing with undersized mesh. The ship-owner opted for an out of court settlement. A sanction of USD 1 000 000, in line with the provisions of Section 88A of the Fisheries (Amendment) Act, 2014 (Act 880) was imposed. However, the ship-owner did not pay within the month stipulated in the law and the case was reverted to court. In December 2019, another out of court settlement case was heard regarding this same industrial trawler for dumping of fish and illegal transhipment for which the vessel was arrested in October 2018. A GHS 680 000 (the equivalent of EUR 110 510) fine was imposed. In May 2020 the vessel was re-arrested for possession of under-sized mesh nets and capture of juvenile fish.

(51) Six industrial trawlers were arrested and sanctioned with a GHS 6 000 fine (equivalent to EUR 1 080 at the time) in 2017 and 2018 through administrative proceedings for dumping of fish at sea – in one case 22,3 tonnes – using undersized mesh net and dumping juvenile fish at sea. This fine is the maximum for dumping of fish in Regulation 32(1) of the Fisheries Regulation 2010 (L.I. 1968). The level of such fine is manifestly inadequate and is clearly not proportionate to the seriousness of the infringements covered, to the potential impact of the infringements on the resource and to the potential benefit that could derive from such illegal actions to perpetrators. One of these trawlers was fined with GHS 6 000 for dumping 22 tonnes of fish in April 2017, in contravention to the Regulation 32(1). The fine imposed through administrative proceedings was decided in July 2018, more than a year after the arrest in April 2017. This same trawler had already been arrested and fined in April 2015 for taking aboard undersized fish. The case of 2015 was settled and paid in an out of court settlement of GHS 200 000 (EUR 44 500 at the time). Despite this, in September 2020, the same industrial vessel was arrested again for alleged similar offence, that is juvenile fish on board which is in contravention of Section 89(1)(c) of the Fisheries Act, 2002 (Act 625) that provides that juvenile fish should not knowingly be taken during fishing and Regulation 14 of the Fisheries Regulations, LI 1968 that states that a person is not to catch or land at any landing site in the country, fish of a size of less than the prescribed length as provided in Table 1 of the Schedule to the Fisheries Regulations, LI 1968.

(52) Another trawler was fined in out of court settlement in November 2019 for two infractions related to dumping of fish contrary to Regulation 32(1)(a) of the Fisheries Regulation 2010 (L.I. 1968). The vessel was fined GHS 6 000 and GHS 24 000, the equivalent to EUR 940 and EUR 3 750 respectively, which according to the latest information sent by the authorities of Ghana were not paid. In addition, on 28 October 2019, the same trawler was arrested for dumping of fish, undersized mesh, juvenile fish and unreported catch. The case was sent to court on 11 November 2019. The ship-owner of that trawler already fined was fined again in November 2019 for another offence (dumping of fish contrary to Regulation 32(1)(a) of the Fisheries Regulation 2010 (L.I. 1968)) committed by another of his trawlers, with GHS 36 000, the equivalent to EUR 5 850 at the time, which according to the information provided by the authorities of Ghana was not paid either.

(53) According to Section 76(1) of the Fisheries Act, 2002 (Act 625) the Ghana’s Fisheries Commission in charge of making recommendations to the Minister on the issuing of licences, is not to recommend the issue or renewal of a fishing licence for a local industrial vessel unless it is satisfied that there has not been a failure to satisfy a judgment or any other determination related to a contravention of the Act. In addition, Section 24M of the 2015 Fisheries (Amendment) Regulations, LI 2217, states that the Fisheries Commission is not to grant authorisations to fish where it has reason to believe the fishing vessel has engaged in IUU fishing, or it has been established that the vessel has been involved in IUU fishing in violation of an international conservation and management measure, and until all outstanding sanctions imposed under Ghanaian law have been complied with. As per the information provided by the authorities of Ghana, over 18 % of fines imposed to trawlers by the out of court settlements for the years 2018 and 2019 were not paid by the end of December 2019. Nevertheless, fisheries licences continued to be issued for these vessels. This is not aligned with the 2002 Fisheries Act, (Act 625). Moreover, in April 2017, a World Bank mission identified issues such as a large gap between the high number of offenses detected and the low number of prosecutions engaged by the competent authorities. The mission identified also inconsistent amounts of fines for similar violations, fine waivers without clear reasons, licence renewal for offenders, partial violation reporting and follow-up, and high proportion of uncollected fines (14).

(54) The examples provided in recitals (48) to (53) demonstrate that sanctions imposed by the authorities of Ghana are not commensurate with the value of the catches, do not deprive offenders from the benefits accrued from the serious violations committed, and are not adequate in severity to be effective in securing compliance and to discourage further violations. In light of the information gathered on the legal framework and on the ongoing enforcement proceedings to establish infractions and impose consequent sanctions, the Commission concluded that Ghana failed to implement Article 19(2) of the UNFSA. This provision establishes that all investigations and judicial proceedings are to be carried out expeditiously and 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 offender of the benefits accruing from their illegal activities. The actual level of sanctions imposed fails to ensure the deterrence of the sanctioning scheme with respect to IUU fishing violations. Moreover, paragraph 21 of the IPOA-IUU provides that States should ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, by nationals under its jurisdiction, are of sufficient severity to deprive offenders of the benefits accruing from such fishing.

(55) In view of the considerations presented in this section, and on the basis of all factual elements gathered by the Commission, as well as all the statements made by the authorities of Ghana, it could be established, pursuant to Article 31(3) and (5) of the IUU Regulation, that Ghana 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)

(56) In accordance with Article 31(6)(a) and (b) of the IUU Regulation, the Commission analysed Ghana’s ratification or accession to relevant international fisheries instruments and its status as a contracting party to RFMOs or its agreement to apply conservation and management measures adopted by them.

(57) Ghana is party to UNCLOS and acceded to UNFSA in 2017. Ghana also ratified the PSMA in 2016. Ghana accepted the FAO Compliance Agreement in 2003. Furthermore, Ghana is a Contracting Party to ICCAT. Ghana is also a member of FCWC, which is a subregional fisheries advisory body.

(58) The Ghanaian Fisheries Law currently in force dates back to 2002. It was partially amended in 2014. During the meetings of the working group referred to in recital 19, the authorities of Ghana informed that Ghana was in the process of reviewing the Fisheries Law of 2002 to reflect the international obligations Ghana has signed up to. However, the review process has suffered significant delays. For example, during the second meeting of the working group in January 2018, the first indicative timeline provided by Ghana for submission to the Parliament was September 2018. During the third meeting of the working group in October 2018, Ghana informed that the updated target timeline to present a draft text to Parliament was June 2019. During the video conference held in January 2019 Ghana provided a new updated timeline for submission to Parliament, foreseen for August 2019. In January 2020, Ghana informed that the updated indicative timeline for submission to Parliament was the end of the second quarter of 2020. In June 2020, Ghana indicated that the updated timeline for finalisation of the final draft would be end of September 2020. Therefore, the current Fisheries Law is not in line with the relevant international instruments to which Ghana is a party.

(59) In accordance with Article 31(6)(c) of the IUU Regulation, the Commission analysed whether Ghana might have been involved in any acts or omissions that may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures.

(60) Section 42(1) of the Fisheries Act, 2002 (Act 625) mandates the Ghanaian Fisheries Commission to prepare a management plan for the fisheries which should be based on the best scientific information available, ensure the optimum utilization of the fishery resources but avoid overexploitation and be consistent with good management principles. In 2015, the authorities of Ghana adopted a National Fisheries Management Plan for the period between 2015 and 2019. The adoption of such instrument was essential for the termination of the demarches vis-à-vis Ghana in October 2015. However, Ghana has not duly implemented the National Fisheries Management Plan.

(61) For instance, the National Fisheries Management Plan provided for an annual Operational Plan that would designate the actions to be taken in every calendar year. However, as per information provided by the authorities of Ghana, such annual Operational Plan was actually only prepared for the year 2015. The annual reports on the performance of the fisheries resources vis-à-vis the indicators as provided in the National Fisheries Management Plan were not done either. Moreover, the National Fisheries Management Plan has expired and a new one has not been adopted yet, based on the last exchange with the authorities of Ghana.

(62) Furthermore, the National Fisheries Management Plan stated amongst the actions to reduce the levels of fishing effort and fishing capacity in the trawl sector, in particular to achieve a 50 % per cent reduction in fishing days over the next three years, that there would be closed seasons for a duration of two months, and up to four months by year three. These closed seasons would take place in May-June or November-December. Similarly, the National Fisheries Management Plan provided for one to two months closures for all fisheries and up to four months by 2019 in order to protect marine habitat and to conserve biodiversity, with the exception of artisanal canoes.

(63) In 2016 and 2017, the closed seasons for the industrial trawl sector took place between 1 November 2016 and 30 November 2016 and between 1 February 2017 and 31 March 2017, respectively. In 2018, closed seasons for the industrial trawl sector took place between 1 January and 28 February. The artisanal and tuna sectors observed a closed season, too. However, in 2018 a second closed season for the industrial trawl and artisanal sector planned for August – during the major upwelling season as indicated in the National Fisheries Management Plan – was deferred to 2019 one week before it began. The authorities of Ghana explained this decision was taken to allow more engagement with stakeholders, in order to generate adherence. Contrary to the National Fisheries Management Plan, in 2019, there was only a two-month closure for the trawl sector between 1 August and 30 September and the artisanal sector observed only a one-month closure between 15 May 2019 and 15 June 2019.

(64) In 2020, no closed seasons took place in Ghana, despite that the 2020 Budget statement stressed that scientific information indicated that marine fish stock levels in Ghana are declining in the EEZ; despite the fact that the authorities of Ghana stated that there was the need to take drastic measures to halt this phenomenon to prevent Ghana from becoming a net importer of fish by 2025; and despite the authorities’ declaration intending to extend the one-month closed season to cover the whole fleet for two months simultaneously in 2020 and 2021 (15). The assessment of the critical situation of the stocks, notably pelagic species, is aligned with CECAF’s assessment, as referred in recital 28.

(65) Another example of the lack of full implementation of the National Fisheries Management Plan of 2015-2019 is that according to the appendix attached to this plan, the maximum number of fishing licences for industrial trawl vessels to ensure the sustainable use of the fishery resources concerned should not exceed 48. However, the authorities of Ghana granted 75 licences for the trawl sector on a quarterly basis. The failure to fully implement the National Fisheries Management Plan undermines Articles 61(2), 61(3) and 62(1) of UNCLOS and Article 6(4) of UNFSA.

(66) In view of the considerations presented in this section and on the basis of all factual elements gathered by the Commission as well as all the statements made by the authorities of Ghana, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that Ghana has failed to discharge 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 (Article 31(7) of the IUU Regulation)

(67) According to the United Nations Human Development Index (UNHDI) (16), in 2019 Ghana was considered a medium human development country ranked 142 out of 189 countries.

(68) Although specific capacity constraints may exist with respect to monitoring, control and surveillance of its fleet, the specific constraints of Ghana derived from its level of development do not justify all the deficiencies identified in the previous sections. Account taken of the above UNHDI ranking, no evidence suggests that the failure of Ghana to discharge its duties under international law is the result of low levels of development. No tangible evidence exists to correlate shortcomings in fisheries legal framework, monitoring, control and surveillance, and traceability systems, with poor capacity and infrastructure. Furthermore, those constraints cannot justify Ghana’s failure to effectively enforce the domestic legislation to sanction infringements related to IUU fishing.

(69) Since 2018, the Commission has provided support to Ghana in the fisheries sector through the regional programme (Improved Regional Fisheries Governance in Western Africa, PESCAO). The Commissions has also offered to provide support on the law review and the adoption of an updated National Plan of Action against IUU fishing in the framework of the working group referred to in recital 19.

(70) In view of the considerations presented in this section and on the basis of all factual elements gathered by the Commission as well as the statements made by the authorities of Ghana, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Ghana with respect to fisheries management are not impaired by its level of development.

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

(71) In view of the conclusions reached with regard to the failure of Ghana to discharge its duties under international law as flag, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, Ghana 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 the fight against IUU fishing.

(72) The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Ghana. 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.

(73) Furthermore, the notification to Ghana of the possibility of being identified as a country which the Commission considers to be a non-cooperating third country 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 third countries,

HAS DECIDED AS FOLLOWS:

Sole Article The Republic of Ghana shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in the fight against illegal, unreported and unregulated fishing.

Done at Brussels, 2 June 2021. For the Commission Virginijus SINKEVIČIUS Member of the Commission

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

(2) Commission Decision 2013/C 346/03 of 26 November 2013 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 346, 27.11.2013, p. 26).

(3) OJ C 324, 2.10.2015, p. 15.

(4) https://treaties.un.org/

(5) http://www.fao.org/port-state-measures/background/parties-psma/en/

(6) https://treaties.un.org/pages/showDetails.aspx?objid=080000028007be1a

(7) http://www.fao.org/fishery/ipoa-iuu/npoa/en

(8) The practice of conducting transhipments at sea between industrial trawl vessels and canoes is locally known as saiko.

(9) https://www.mofep.gov.gh/sites/default/files/budget-statements/2020-Budget-Statement-and-Economic-Policy_v3.pdf

(10) According to an assessment by the FAO/CECAF Working Group on the Assessment of Small Pelagic Fish – Subgroup South, stocks of Sardinella aurita (round sardinella) and Sardinella maderensis (flat sardinella) shared between the Ivory Coast, Ghana, Togo and Benin are over-exploited and near collapse. The assessment recommended the closure of the sardinella fishery to allow the stocks to recover. FAO (2019). Report of the FAO/CECAF Working Group on the Assessment of Small Pelagic Fish – Subgroup South. Elmina, Ghana, 12-20 September 2018. Rapport du Groupe de travail FAO/COPACE sur l’évaluation des petits poissons pélagiques – Sous-groupe Sud. Elmina, Ghana, 12-20 septembre 2018. CECAF/ECAF Series/COPACE/PACE Séries No 19/81. Rome. http://www.fao.org/3/ca5402b/ca5402b.pdf

(11) http://www.fao.org/3/CA0464EN/ca0464en.pdf and http://www.fao.org/3/cb2339en/CB2339EN.pdf

(12) http://documents1.worldbank.org/curated/en/866911554409721545/pdf/Ghana-Under-the-First-Phase-of-the-West-Africa-Regional-Fisheries-Program-Project.pdf

(13) For tuna fishing vessels different provisions apply: at least 50 % of the shares in the vessel is to be beneficially owned or controlled by the persons referred to in recital 34.

(14) http://documents1.worldbank.org/curated/en/866911554409721545/pdf/Ghana-Under-the-First-Phase-of-the-West-Africa-Regional-Fisheries-Program-Project.pdf

(15) https://www.mofep.gov.gh/sites/default/files/budget-statements/2020-Budget-Statement-and-Economic-Policy_v3.pdf

(16) http://hdr.undp.org/sites/all/themes/hdr_theme/country-notes/GHA.pdf