COUNCIL DECISION

of 24 February 2011

on the signing, on behalf of the Union, and provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Democratic Republic of São Tomé and Príncipe

(2011/296/EU)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 43 in conjunction with Article 218(5) thereof,

Having regard to the proposal from the European Commission,

Whereas:

On 23 July 2007, the Council adopted Regulation (EC) No 894/2007 on the conclusion of a Fisheries Partnership Agreement between the Democratic Republic of São Tomé and Príncipe and the European Community (1) (the ‘Agreement’). A Protocol setting out the fishing opportunities and the financial contribution provided for by the Agreement (2) (the ‘former Protocol’) was attached thereto. That former Protocol expired on 31 May 2010.

The Union therefore negotiated a new Protocol (the ‘Protocol’) setting out the fishing opportunities and the financial contribution provided for by the Fisheries Partnership Agreement with the Democratic Republic of São Tomé and Príncipe, providing Union vessels with fishing opportunities in the waters over which the Democratic Republic of São Tomé and Príncipe has sovereignty or jurisdiction in respect of fisheries.

As a result of those negotiations, the Protocol was initialled on 15 July 2010.

The Protocol should be applied provisionally from the date of its signing, as provided for in Article 13 thereof.

Given that the old Protocol has expired, and in order to guarantee a timely resumption of fishing activities by Union vessels, it is essential that the new Protocol be applied as quickly as possible.

The Protocol should therefore be signed and provisionally applied, pending the completion of the procedures necessary for is conclusion,

HAS ADOPTED THIS DECISION:

Article 1

The signing of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Democratic Republic of São Tomé and Príncipe (the ‘Protocol’) is hereby approved on behalf of the Union, subject to its conclusion.

The text of the Protocol is attached to this Decision.

Article 2

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol in order to bind the European Union, subject to its conclusion.

Article 3

The Protocol shall be applied provisionally from the date of its signing, as provided for in Article 13 thereof, pending the completion of the procedures necessary for is conclusion (3).

Article 4

This Decision shall enter into force on the day of its adoption.

(1) OJ L 205, 7.8.2007, p. 35.

(2) OJ L 205, 7.8.2007, p. 40.

(3) The date of signature of the Protocol will be published in the Official Journal by the General Secretariat of the Council.

PROTOCOL

setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Union and the Democratic Republic of São Tomé and Príncipe

Article 1

Period of application and fishing opportunities

1. For a period of three years, the fishing opportunities granted to European Union vessels under Article 5 of the Fisheries Partnership Agreement shall be as follows:

Highly migratory species (species listed in Annex 1 to the 1982 United Nations Convention on the Law of the Sea).

— tuna seiners: 28 vessels,

— surface longliners: 12 vessels.

2. Paragraph 1 shall apply subject to Articles 5, 6, 8 and 9 of this Protocol.

Article 2

Financial contribution — Methods of payment

1. For the period referred to in Article 1, the financial contribution referred to in Article 7 of the Fisheries Partnership Agreement shall be EUR 2 047 500.

2. The financial contribution comprises:

(a) an annual amount for access to the EEZ of São Tomé and Príncipe of EUR 455 000, equivalent to a reference tonnage of 7 000 tonnes per year; and

(b) a specific amount of EUR 227 500 per year to support the implementation of the sectoral fisheries policy of São Tomé and Príncipe.

3. Paragraph 1 shall apply subject to Articles 3, 4, 5, 8 and 9 of this Protocol and Articles 12 and 13 of the Fisheries Partnership Agreement.

4. The European Union shall pay the financial contribution referred to in paragraph 1 at the rate of EUR 682 500 per year during the period of application of this Protocol, corresponding to the total of the annual amounts referred to in paragraph 2(a) and (b).

5. If the overall quantity of catches by European Union vessels in São Toméan waters exceeds 7 000 tonnes per year, the total amount of the annual financial contribution shall be increased by EUR 65 for each additional tonne caught. However, the total annual amount paid by the European Union shall not be more than twice the amount indicated in paragraph 2(a). Where the quantities caught by European Union 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.

6. Payment shall be made no later than sixty (60) days after the entry into force of the Protocol, as specified in Article 14, for the first year and no later than the anniversary date of this Protocol for the following years.

7. The São Toméan authorities shall have full discretion regarding the use to which the financial contribution referred to in paragraph 2(a) is put.

8. The entire financial contribution indicated in paragraph 1 of this Article shall be paid into a Public Treasury account opened with the National Bank of São Tomé and Príncipe.

Article 3

Promotion of responsible and sustainable fishing in São Toméan waters

1. No later than three (3) months after the entry into force of this Protocol, the Parties shall agree, within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement, on a multiannual sectoral programme and detailed implementing rules, in particular:

(a) annual and multiannual guidelines for using the financial contribution referred to in Article 2(2)(b);

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

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

2. Any proposed amendments to the multiannual sectoral programme must be approved by both Parties within the Joint Committee.

3. Each year, the São Toméan authorities may decide to allocate an additional amount over and above the share of the financial contribution referred to in Article 2(2)(b) with a view to implementing the multiannual programme. This allocation shall be communicated to the European Union no later than two (2) months before the anniversary date of this Protocol.

4. Each year, the two Parties shall carry out an evaluation of the progress made in implementing the multiannual sectoral programme. Where this evaluation indicates that the objectives financed directly by the part of the financial contribution referred to in Article 2(2)(b) of this Protocol have not been satisfactorily achieved, the European Commission reserves the right to reduce that part of the financial contribution with a view to adjusting the amount allocated to the implementation of the Programme in line with the results.

Article 4

Scientific cooperation on responsible fishing

1. The two Parties hereby undertake to promote responsible fishing in São Toméan waters based on the principle of non-discrimination between the different fleets operating in those waters.

2. During the period covered by this Protocol, the European Union and São Tomé and Príncipe shall undertake to cooperate to monitor the state of fishery resources in the São Toméan fishing zone.

3. The two Parties shall comply with the recommendations and resolutions of the International Commission for the Conservation of Atlantic Tunas (ICCAT) regarding the responsible management of fisheries.

4. In accordance with Article 4 of the Fisheries Partnership Agreement, on the basis of the recommendations and resolutions adopted within ICCAT and in the light of the best scientific advice available, the Parties shall consult each other within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement to take measures to ensure the sustainable management of the fishery resources covered by this Protocol and concerning the activities of European Union vessels.

Article 5

Adjustment of fishing opportunities by mutual agreement

1. The fishing opportunities referred to in Article 1 may be adjusted by mutual agreement insofar as the recommendations and resolutions adopted by ICCAT confirm that this adjustment guarantees the sustainable management of the fishery resources covered by this Protocol. In this case, the financial contribution referred to in Article 2(2)(a) shall be adjusted proportionately and pro rata temporis. However, the total annual amount of the financial contribution paid by the European Union shall not be more than twice the amount referred to in Article 2(2)(a).

Article 6

New fishing opportunities

1. Should European Union vessels be interested in fishing activities which are not indicated in Article 1, the Parties shall consult each other before any authorisation is granted by the São Toméan authorities. 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.

Article 7

Conditions governing fishing activities — Exclusivity clause

1. Without prejudice to Article 6 of the Agreement, fishing vessels flying the flag of a Member State of the European Union may fish in São Toméan waters only if they are in possession of a fishing authorisation issued under this Protocol in accordance with the Annex hereto.

Article 8

Suspension and review of the payment of the financial contribution

1. The financial contribution, as referred to in Article 2(2)(a) and (b), may be revised or suspended if one or more of the following conditions apply:

(a) unusual circumstances, as defined in Article 2(h) of the Fisheries Partnership Agreement, prevent fishing activities in the São Toméan EEZ;

(b) following significant changes in the policy guidelines which led to the conclusion of this Protocol, one of the two Parties requests a review of the provisions with a view to a possible amendment thereof;

(c) the European Union notes that there has been a violation by the São Toméan authorities of the essential and fundamental elements of human rights as provided for in Article 9 of the Cotonou Agreement.

2. The European Union reserves the right to suspend, partially or totally, the payment of the specific financial contribution provided for in Article 2(2)(b) of this Protocol:

(a) if the results obtained are inconsistent with the programming, following an evaluation carried out by the Joint Committee;

(b) in the event of failure to implement this financial contribution.

3. Payment of the financial contribution shall resume after consultation and agreement by the two Parties, as soon as the situation existing prior to the events mentioned in paragraph 1 has been re-established and/or if the results of the financial implementation referred to in paragraph 2 so warrant.

Article 9

Suspension of the implementation of the Protocol

1. The implementation of this Protocol may be suspended at the initiative of one of the two Parties if one or more of the following conditions apply:

(a) unusual circumstances, as defined in Article 2(h) of the Fisheries Partnership Agreement, prevent fishing activities in the São Toméan EEZ;

(b) following significant changes in the policy guidelines which led to the conclusion of this Protocol, one of the two Parties requests a review of the provisions with a view to a possible amendment thereof;

(c) one of the two Parties notes that there has been a violation of the essential and fundamental elements of human rights as provided for in Article 9 of the Cotonou Agreement;

(d) there is a non-payment of the financial contribution provided for in Article 2(2)(a) by the European Union, for reasons other than those provided for in Article 8 of this Protocol;

(e) failure to embark observers from São Tomé and Príncipe on vessels covered by this Protocol in accordance with Chapter V of the Annex;

(f) there is a dispute between the two Parties concerning the interpretation of this Protocol;

(g) one of the two Parties does not comply with the provisions of this Protocol and the Annex and appendices hereto.

2. Implementation of the Protocol may be suspended at the initiative of one Party if it has not been possible to settle the dispute between the Parties in consultations held within the Joint Committee.

3. Suspension of application of the Protocol shall require the Party concerned 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. Where such a 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 10

National law

1. The activities of European Union fishing vessels operating in São Toméan waters shall be governed by the applicable law in São Tomé and Príncipe, unless otherwise provided for in the Fisheries Partnership Agreement, this Protocol and the Annex and appendices hereto.

2. The São Toméan authorities shall inform the European Commission of any change or any new legislation relating to the fishing sector.

3. The European Commission shall inform the São Toméan authorities of any change or any new legislation relating to the fishing activities of the European Union distant-water fleet.

Article 11

Duration

This Protocol and the Annex hereto shall apply for a period of three years from their provisional application in accordance with Articles 13 and 14, unless notice of termination is given in accordance with Article 12.

Article 12

Termination

1. In the event of termination of the Protocol, the Party concerned shall notify the other Party in writing of its intention to terminate the Protocol at least six (6) months before the date on which such termination would take effect.

2. Dispatch of the notification, as referred to in the previous paragraph, shall open consultations between the Parties.

Article 13

Provisional application

This Protocol shall apply provisionally from the date of signature.

Article 14

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.