EN Official Journal of the European Union L 319/15

COUNCIL DECISION

of 7 November 2006

on the conclusion of the Agreement in the form of an Exchange of Letters on the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Community and the Gabonese Republic on fishing off the coast of Gabon for the period from 3 December 2005 to 2 December 2011

(2006/788/EC)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Article 37 in conjunction with Article 300(2) thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) The Community and the Gabonese Republic have negotiated and initialled a Fisheries Partnership Agreement providing Community fishermen with fishing opportunities in the waters falling within the sovereignty of the Gabonese Republic.

(2) It is in the Community's interest to approve that Agreement.

(3) It is necessary to guarantee the continuity of fishing activities from the date of expiry of the previous Protocol (1) until the date of entry into force of the Protocol setting out the fishing opportunities and financial contribution provided for in that Agreement.

(4) The method for allocating the fishing opportunities among the Member States should be defined,

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement in the form of an Exchange of Letters on the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Community and the Gabonese Republic on fishing off the coast of Gabon for the period from 3 December 2005 to 2 December 2011 is hereby approved on behalf of the Community.

The text of the Agreement is attached to this Decision.

Article 2

The Agreement shall apply provisionally from 3 December 2005.

Article 3

The fishing opportunities set out in the Protocol to the Agreement shall be allocated among the Member States as follows:

Fishing category Type of vessel Member State Licences or quota Tuna fishing Surface longliners Spain 13 Portugal 3 Tuna fishing Freezer tuna seiners Spain 12 France 12

If licence applications from these Member States do not exhaust all the fishing opportunities laid down by the Protocol, the Commission may take into consideration licence applications from any other Member State.

Article 4

The Member States whose vessels fish under this Agreement shall notify the Commission of the quantities of each stock caught within the Gabonese fishing zone in accordance with Commission Regulation (EC) No 500/2001 of 14 March 2001 laying down detailed rules for the application of Council Regulation (EEC) No 2847/93 on the monitoring of catches taken by Community fishing vessels in third country waters and on the high seas (2).

Article 5

The President of the Council is hereby authorised to designate the persons empowered to sign the Agreement in the form of an Exchange of Letters in order to bind the Community.

Done at Brussels, 7 November 2006. For the Council The President E. HEINÄLUOMA

(1) Approved by Council Regulation (EC) No 580/2002 of 25 March 2002 (OJ L 89, 5.4.2002, p. 3).

(2) OJ L 73, 15.3.2001, p. 8.

EN Official Journal of the European Union L 319/17

AGREEMENT IN THE FORM OF AN EXCHANGE OF LETTERS

on the provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Community and the Gabonese Republic on fishing off the Coast of Gabon for the period from 3 December 2005 to 2 December 2011

Sir,

With reference to the Protocol, initialled on Friday 28 October 2005, setting out the fishing opportunities and the financial contribution for the period from 3 December 2005 to 2 December 2011, I have the honour to inform you that Gabon is willing to apply the Protocol provisionally from 3 December 2005 pending its entry into force in accordance with Article 13 thereof, provided that the European Community is prepared to do likewise.

This is on the understanding that the first instalment of the financial contribution, laid down by Article 2 of the Protocol, must be paid before 30 September 2006.

I should be grateful if you would confirm the agreement of the European Community to such a provisional application.

Please accept, Sir, the assurance of my highest consideration.

For the Government of Gabon

Sir,

I have the honour to acknowledge receipt of your letter of today's date which reads as follows:

‘With reference to the Protocol, initialled on Friday 28 October 2005, setting out the fishing opportunities and the financial contribution for the period from 3 December 2005 to 2 December 2011, I have the honour to inform you that Gabon is willing to apply the Protocol provisionally from 3 December 2005 pending its entry into force in accordance with Article 13 thereof, provided that the European Community is prepared to do likewise. This is on the understanding that the first instalment of the financial contribution, laid down by Article 2 of the Protocol, must be paid before 30 September 2006.’

I am pleased to confirm the agreement of the European Community to a provisional application.

Please accept, Sir, the assurance of my highest consideration.

For the Council of the European Union

PROTOCOL

setting out the fishing opportunities and financial contribution provided for in the Agreement between the European Community and the Gabonese Republic on fishing off the coast of Gabon for the period from 3 December 2005 to 2 December 2011

Article 1

Period of application and fishing opportunities

1. For a period of six years from 3 December 2005, the fishing opportunities granted under Article 5 of the Agreement shall be as follows:

Highly migratory species (species listed in Annex 1 to the 1982 United Nations Convention)

— freezer tuna seiners: 24 vessels,

— surface longliners: 16 vessels.

2. Paragraph 1 shall apply subject to Articles 4 and 5 of this Protocol.

3. Vessels flying the flag of a Member State of the European Community may fish in the Gabonese fishing zone only if they are in possession of a fishing licence issued under this Protocol in accordance with the Annex hereto.

Article 2

Financial contribution — Methods of payment

1. The financial contribution referred to in Article 7 of the Agreement shall comprise, for the period referred to in Article 1, an annual amount of EUR 715 000 equivalent to a reference tonnage of 11 000 tonnes per year and a specific amount of EUR 145 000 per year for the support and implementation of initiatives taken in the context of the Gabonese sectoral fisheries policy. This specific amount shall be an integral part of the single financial contribution defined in Article 7 of the Agreement.

2. Paragraph 1 shall apply subject to Articles 4, 5 and 7 of this Protocol.

3. The Community shall pay the sum of the amounts referred to in paragraph 1, i.e. EUR 860 000, each year during the period of application of this Protocol.

4. If the overall quantity of catches by Community vessels in Gabonese waters exceeds 11 000 tonnes per year, the amount of the annual financial contribution (EUR 715 000) shall be increased by EUR 65 for each additional tonne caught. However, the total annual amount paid by the Community shall not be more than twice the amount indicated in paragraph 3 (EUR 1 430 000). Where the quantities caught by Community vessels exceed the quantities corresponding to twice the total annual amount, the amount due for the quantity exceeding that limit shall be paid the following year.

5. Payment of the financial contribution referred to in paragraph 1 shall be made no later than 30 September 2006 for the first year and no later than 30 June 2007, 2008, 2009, 2010 and 2011 for the following years.

6. Subject to Article 6, the Gabonese authorities shall have full discretion regarding the use to which this financial contribution is put.

7. The financial contribution shall be paid into account No 47069 X, ‘Pêche Maritime’ (Sea Fisheries) in the name of the Public Treasury of Gabon.

Article 3

Cooperation on responsible fishing — Scientific meeting

1. The Parties hereby undertake to promote responsible fishing in Gabonese waters on the basis of the principles of non-discrimination between the different fleets fishing in those waters.

2. During the period covered by this Protocol, the Community and the Gabonese authorities shall endeavour to monitor the evolution of resources in the Gabonese fishing zone.

3. The Parties undertake to promote cooperation at subregional level on responsible fishing and, in particular, within COREP.

4. In accordance with Article 4 of the Agreement and on the basis of the recommendations and resolutions adopted within the International Commission for the Conservation of Atlantic Tunas (ICCAT), and in the light of the best available scientific advice, the Parties shall consult each other within the Joint Committee provided for in Article 9 of the Agreement and adopt, where appropriate after a scientific meeting possibly at subregional level, and by mutual agreement, measures to ensure the sustainable management of fisheries resources affecting the activities of Community vessels.

Article 4

Review of fishing opportunities by mutual agreement

1. The fishing opportunities referred to in Article 1 may be increased by mutual agreement provided that the conclusions of the scientific meeting referred to in Article 3(4) confirm that such an increase will not endanger the sustainable management of Gabon's resources. In this case the financial contribution of EUR 715 000 referred to in Article 2(1) shall be increased proportionately and pro rata temporis. However, the total amount of the financial contribution paid by the European Community in respect of the reference tonnage shall not be more than twice the amount of EUR 715 000. Where the quantities caught annually by Community vessels are more than twice 11 000 (i.e. 22 000) tonnes, the amount due for the quantity exceeding that limit shall be paid the following year.

2. Conversely, if the Parties agree to adopt a reduction in the fishing opportunities provided for in Article 1, the financial contribution shall be reduced proportionately and pro rata temporis.

3. The allocation of the fishing opportunities among different categories of vessels may also be reviewed, following consultations and by mutual agreement between the Parties, provided that any changes comply with recommendations made by the scientific meeting referred to in Article 3 regarding the management of stocks liable to be affected by such redistribution. The Parties shall agree on the corresponding adjustment of the financial contribution where the redistribution of fishing opportunities so warrants.

Article 5

New fishing opportunities

1. Should Community vessels be interested in fishing activities which are not indicated in Article 1, the Community shall consult Gabon in order to seek authorisation for these new activities. Where appropriate, the Parties shall agree on the conditions applicable to these new fishing opportunities and, if necessary, make amendments to this Protocol and to the Annex hereto.

2. The Parties shall encourage exploratory fishing, particularly as regards deep-sea species present in Gabonese waters. To this end, at the request of one of the Parties, they shall consult each other and determine on a case-by-case basis the relevant species, conditions and other parameters.

The Parties shall carry out exploratory fishing in accordance with parameters that shall be agreed by both Parties in an administrative arrangement where appropriate. The authorisations for exploratory fishing should be agreed for a maximum period of six months. If the Parties conclude that the exploratory campaigns have achieved convincing results, the Gabonese Government may allocate fishing opportunities for the new species to the Community fleet, until the expiry of this Protocol. The financial compensation referred to in Article 2(1) of the current Protocol shall consequently be increased.

Article 6

Suspension and review of the payment of the financial contribution in the event of unusual circumstances

1. Where unusual circumstances, other than natural phenomena, prevent fishing activities in the Gabonese exclusive economic zone (EEZ), the European Community may suspend payment of the financial contribution provided for in Article 2(1). The suspension decision shall be taken following consultations between the two Parties within a period of two months following the request of one of the Parties, and provided that the Community has paid in full any amounts due at the time of suspension.

2. Payment of the financial contribution shall resume as soon as the Parties find, by mutual agreement following consultations, that the circumstances preventing fishing activities are no longer present and/or that the situation allows a resumption of fishing activities.

3. Where the validity of the licences granted to Community vessels is suspended along with the payment of the financial contribution, it shall be extended by a period equal to the period during which fishing activities were suspended.

Article 7

Promotion of responsible fishing in Gabonese waters

1. Sixty percent (60 %) of the total amount of the financial contribution fixed in Article 2 shall be allocated each year to the support and implementation of initiatives taken in the context of the sectoral fisheries policy drawn up by the Gabonese Government.

Gabon shall manage the corresponding amount following the identification by mutual agreement between the two Parties, in accordance with the current priorities of Gabonese fisheries policy for ensuring sustainable and responsible management of the sector, of the objectives to be attained and the annual and multiannual programming required to attain them, pursuant to paragraph 2 below.

2. On a proposal from Gabon and for the purposes of the preceding paragraph, as soon as this Protocol enters into force and no later than three months after that date, the Community and Gabon shall agree, within the Joint Committee provided for in Article 9 of the Agreement, on a multiannual sectoral programme and detailed implementing rules covering, in particular:

(a) annual and multiannual guidelines for using the percentage of the financial contribution referred to in paragraph 1 and its specific amounts for the initiatives to be carried out each year;

(b) the objectives, both annual and multiannual, to be achieved with a view to promoting responsible fishing and sustainable fisheries, taking account of the priorities expressed by Gabon in its national fisheries policy and other policies relating to or having an impact on the introduction of responsible fishing and sustainable fisheries;

(c) criteria and procedures for evaluating the results obtained each year.

3. Any proposed amendments to the multiannual sectoral programme or of the use of the specific amounts for the initiatives to be carried out each year must be approved by both Parties within the Joint Committee.

4. Each year, Gabon shall allocate the share corresponding to the percentage referred to in paragraph 1 with a view to implementing the multiannual programme. For the first year of application of the Protocol, that allocation must be notified to the Community at the time when the multiannual sectoral programme is approved within the Joint Committee. For each year of application of the Protocol thereafter, Gabon shall notify the Community of the allocation no later than 1 May of the previous year.

5. Where the annual evaluation of the progress made in implementing the multiannual sectoral programme so warrants, the European Community may ask for the financial contribution referred to in Article 2(1) of this Protocol to be readjusted with a view to bringing the actual amount of financial resources allocated to implementation of the programme into line with its results.

Article 8

Disputes — suspension of application of the Protocol

1. Any dispute between the Parties over the interpretation of this Protocol or its application shall be the subject of consultations between the Parties within the Joint Committee provided for in Article 9 of the Agreement, in a special meeting if necessary.

2. Without prejudice to Article 9, application of the Protocol may be suspended at the initiative of one Party if the dispute between the two Parties is deemed to be serious and if the consultations held within the Joint Committee under paragraph 1 have not resulted in an amicable settlement.

3. Suspension of application of the Protocol shall require the interested Party to notify its intention in writing at least three months before the date on which suspension is due to take effect.

4. In the event of suspension, the Parties shall continue to consult with a view to finding an amicable settlement to their dispute. As soon as an amicable settlement is reached, application of the Protocol shall resume and the amount of the financial contribution shall be reduced proportionately and pro rata temporis according to the period during which application of the Protocol was suspended.

Article 9

Suspension of application of the Protocol on grounds of non-payment

Subject to Article 3, if the Community fails to make the payments provided for in Article 2, application of this Protocol may be suspended on the following terms:

(a) the competent Gabonese authorities shall notify the European Commission of the non-payment. The latter shall carry out the requisite checks and, where necessary, transmit the payment within no more than 60 working days of the date of receipt of the notification;

(b) if no payment is made and non-payment is not adequately justified within the period provided for in Article 2(5) of this Protocol, the competent Gabonese authorities shall be entitled to suspend application of the Protocol. They shall inform the European Commission of such action forthwith;

(c) application of the Protocol shall resume as soon as the payment concerned has been made.

Article 10

National law

The activities of Community vessels operating in Gabonese waters shall be governed by the applicable law in Gabon, unless otherwise provided in the Agreement, this Protocol and the Annex and Appendices hereto.

Article 11

Review clause

During the fourth year of application of this Protocol, the Annex and the Appendices hereto, the Parties may review the provisions of the Protocol, the Annex and the Appendices and, where necessary, make amendments. These amendments may include the reference tonnage and the flat-rate advances paid by shipowners.

Article 12

Repeal

The Annex to the Agreement between the European Community and Gabonese Republic on fishing off the coast of Gabon is hereby repealed and replaced by the Annex to this Protocol.

Article 13

Entry into force

1. This Protocol with its Annex shall enter into force on the date on which the Parties notify each other of the completion of the procedures necessary for that purpose.

2. It shall apply as from 3 December 2005.