EN Official Journal of the European Union C 185/2

COMMISSION DECISION

of 10 June 2014

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

(2014/C 185/02)

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) Council 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, démarches 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) In accordance with Article 32 of the IUU Regulation, the Commission should notify Third Countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification of Third Countries of the possibility of their being identified as non-cooperating countries shall be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission should also take all the démarches set out in Article 32 with respect to those countries. In particular, the Commission should include in the notification information concerning the essential facts and considerations underlying such identification, the opportunity of those countries to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and measures taken to rectify the situation. The Commission should give to the Third Countries concerned adequate time to answer the notification and reasonable time to remedy the situation.

(4) Pursuant to Article 31 of the IUU Regulation, the 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.

(5) The identification of non-cooperating Third Countries will be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

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

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

(8) Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with Third Countries in areas pertaining to the implementation of that Regulation.

2. PROCEDURE WITH RESPECT TO THE INDEPENDENT STATE OF PAPUA NEW GUINEA

(9) In accordance with Article 20 of the IUU Regulation, the notification of the Independent State of Papua New Guinea (PNG) as flag State was received by the Commission as of 4 February 2010.

(10) From 7 to 11 November 2011, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to PNG in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(11) The mission sought to verify information concerning PNG’s arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by PNG in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(12) The final report of the mission was sent to PNG on 15 February 2012.

(13) The comments of PNG on the final report of the mission were received on 25 May 2012.

(14) A subsequent mission of the Commission to PNG to follow up the actions taken in the first mission was conducted from 7 to 16 November 2012.

(15) PNG submitted additional information on 3 January 2013.

(16) The final report of the mission was delivered to PNG on 7 March 2013.

(17) PNG submitted comments to the mission report of November 2012 on 5 July 2013.

(18) A meeting took place between PNG and Commission services on 12 July 2013.

(19) The Commission provided to PNG on 9 October 2013 written observations highlighting the need for concrete actions and reforms to address the most pertinent and urgent issues.

(20) PNG submitted additional information by written communications dated 11 November 2013 and 4 December 2013.

(21) A meeting took place between PNG and Commission services on 12 December 2013.

(22) PNG submitted additional information on 6 January 2014.

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

(24) In order to evaluate the compliance of PNG with its international obligations as flag, port, coastal or market State set out in the international agreements mentioned in the recital 23 and established by the relevant Regional Fisheries Management Organisations (RFMOs) mentioned in the recital 23, the Commission sought and analysed all the information it deemed necessary for the purpose of that exercise.

(25) The Commission also used information derived from available data published by WCPFC as well as publicly available information.

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

(26) Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of PNG 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.

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

(27) With respect to PNG-flagged vessels it is noted that on the basis of information retrieved from RFMOs vessel lists there are no vessels in provisional or final IUU lists and no evidence of past cases of PNG-flagged vessels exists that would enable the Commission to analyse the performance of PNG with respect to recurring IUU fishing activities in accordance with Article 31(4)(a).

(28) Pursuant to Article 31(4)(b), the Commission also examined the measures taken by PNG in respect of access of fisheries products stemming from IUU fishing to its market.

(29) The Commission considers, on the basis of an assessment of all the information at its disposal, that PNG cannot ensure that fishery products entering PNG or PNG-based processing plants do not stem from IUU fishing. This is due to systemic problems undermining the possibility of PNG authorities to trace catches because of the lack of available official information for PNG authorities about fish landed, imported and/or processed. The main elements at the basis of the Commission’s assessment are summarised hereinafter.

(30) The main fishing activities in waters under PNG jurisdiction are not conducted by PNG-flagged vessels, but by vessels under foreign flag, which regularly use PNG ports. In its report to the 8th session of the WCPFC Scientific Committee of 2012 (4) PNG reports that a total of 251 vessels were active in the PNG waters in 2011, namely 35 longline and 216 purse-seine vessels. Ten out of the 216 purse-seine vessels were PNG-flagged, 39 were PNG-chartered (domestic-based foreign-flagged vessels) and 167 were foreign vessels fishing under access agreements. Similar information was provided during the Commission mission. In November 2012, PNG informed the Commission that 214 purse seine vessels were authorised to fish in PNG waters with a level of total allowable catch (TAC) above 700 000 metric tons (720 000 metric tons according to the PNG presentation to the Commission during its mission in 2011 (5)).

(31) With a view to the tuna processing industry in PNG which is expanding, the Commission analysed the situation pertaining to the activities of this industry and any impact that these operations may have in respect of access of fisheries products stemming from IUU fishing to its market.

(32) The International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) provides guidance on internationally agreed market-related measures which supports reduction or elimination of trade in fish and fish products derived from IUU fishing. The IPOA IUU also suggests in point 71 that States should take steps to improve the transparency of their markets in order to allow the traceability of fish or fish products. Equally, the Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries (FAO Code of Conduct) outlines, in particular in Article 11, good practices for post-harvest and responsible international trade. Article 11(1)(11) requests States to ensure that fish and fishery products are traded internationally and domestically in accordance with sound conservation and management practices through improving the identification of the origin of fish and fishery products.

(33) During its missions to PNG in 2011 and 2012, the Commission, together with the PNG National Fishery Authority (NFA) visited or met several operators of tuna processing plants established in PNG.

(34) Processing plants receive part of their raw material from locally-based foreign-flagged vessels, which operate under chartering arrangements. In its report submitted in 2012 to the WCPFC Scientific Committee (6) PNG informed that in 2011, 39 active chartered vessels were fishing both inside and outside of PNG waters, with most effort spent in PNG waters (over 74 % on average over the past 4 years). Some of these vessels are flying the flag of a country that has been notified by the Commission on 15 November 2012 that it is considered 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.

(35) During the Commission mission in November 2012, the NFA reported 8 PNG-chartered vessels flying the flag of Vanuatu while one of the chartering PNG processing plants reported that 12 of its 14 operating charted vessels are flying that flag. In this respect it is recalled that catch certificates validated by Vanuatu cannot be accepted, because Vanuatu’s flag State notification in accordance with Article 20 of the IUU Regulation has not been accepted by the Commission, and consequently imports of fisheries products caught by Vanuatu vessels are not possible. In addition, Vanuatu was notified by the Commission with Commission Decision of 15 November 2012 (7) as possible of being identified as non-cooperating Third Country.

(36) The operator of the processing plant mentioned in recital 35 provided its monthly reports on the receipt of raw materials for 2012 to the Commission, which include company information on details on the vessel, fishing trip and fish landed. PNG authorities rely on these ‘monthly receiving reports’ provided by companies as landing information, instead of performing control of landings themselves, including an official assessment of necessary details, such as landed weight per species per fishing trip per vessel. The PNG authorities confirmed at the time of the Commission mission that no controls on landings are performed, neither by fisheries nor customs authorities. Raw material caught by Third Country flagged vessels entering processing plants does neither undergo an import procedure with payment of duties nor is it placed under customs supervision until export. Traceability of such products is not possible and access to the PNG market would easily be possible without being noticed.

(37) The processing plant operator explained, during the Commission mission in November 2012, that raw material supply for his processing activities in PNG is ensured by the mother company of the processing plant, which is based outside of PNG. The processing plant operator informs the mother company of its needs of raw material, and receives, upon payment, the required tuna catch via carrier vessels. The mother company is also responsible for the disposal of catch of the PNG locally-based foreign-flagged chartered vessels. Therefore, the PNG-based processing plant has no information on the activities of these vessels and disposal of their catch. The operator further informed the Commission that sales of unprocessed fish to other PNG-based companies may occur. PNG authorities do not perform any actual control on the information kept by the operator and has in fact never audited the company for IUU related purposes. Hence the traceability of products coming out of the processing plant cannot be guaranteed.

(38) PNG authorities informed the Commission that chartered vessels were operating in its exclusive economic zone (EEZ) and free to export their catch. In this respect it is noted that the PNG Tuna Management Plan, Division 3, Article 36 requires landing in PNG of the catches of locally-based foreign fishing vessels for processing or transhipping from a designated port as PNG export.

(39) Further, registration as PNG export requires usually either a prior import of the products concerned, or that the product must have PNG origin. PNG customs authorities informed the Commission during its mission that they have no information on vessel activities and rely on information provided by PNG NFA. However, customs authorities raised their concern over difficulties with some companies or shipping agents not fulfilling their customs obligations regarding the declarations of export or transhipment of fisheries products. This lack of overview of movement of goods may result in uncontrolled access of fish on the PNG market and may compromise also the reliability of certificates by PNG authorities.

(40) In its submission of 5 July 2013, PNG recognised the need to strengthen its control and monitoring system, such as its traceability system for fishery products, introduction of landing declarations and systematic controls and enhancement cooperation with customs authorities. Similar commitments were provided from PNG during the meeting on 12 December 2013. The authorities explained that they are working on implementation of IT system, tools on port state measures and amelioration on the catch certification process. These actions would strengthen the traceability system. Nevertheless, all the information provided referred future plans without any concrete tangible result.

(41) In addition, the traceability of products is further hindered by a lack of transparency in PNG’s national laws, registration and licensing systems.

(42) The FAO Code of Conduct recommends transparency in fisheries laws and their preparation as well as for respective policy- and decision- making and management processes (paragraphs 6(13) and 7(1)(9) respectively). It provides principles and standards applicable to the conservation, management and development of all fisheries and covers also, amongst others, capture, processing and trade of fish and fishery products, fishing operations and fisheries research. The FAO Code of Conduct, in paragraphs 11(2) and 11(3), specifies further that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures as well as on transparent, simple and comprehensive laws, regulations and administrative procedures.

(43) The Commission considers therefore the license as a crucial document allowing to establish operational rules and conditions (e.g. fishing areas: archipelagic waters, EEZ, access to high seas etc.), type of activity, designated ports or transhipment. It has been established and highlighted during the Commission mission in 2011 that the PNG vessel registration and licensing system lacks transparency. Eligibility rules and conditions are neither clear, nor transparent or publicly available for various types of licenses (PNG-flagged vessels, PNG-chartered vessels, and Third Country vessels under access agreements). The PNG Tuna Management Plan (8) provides only guidelines for the operation of tuna vessels and no specific conditions for such operation. PNG replied to the Commission mission report that special conditions are reserved for vessels which are considered significant to PNG national interest in respect of economic development and consistent with the development aspirations of Small Island Developing States.

(44) This lack of transparency and clarity leads to a confusing situation with significant impact, especially because undisclosed ‘special conditions’ are applicable to approximately 80 % of PNG fishing licenses. This situation was found unchanged during the second Commission mission in November 2012.

(45) The Commission also endeavoured to study the applicable rules on transhipments. Relevant provisions exist in the PNG Fisheries Management Act 1998 (9) (FMA), the PNG Fisheries Management Regulation 2000 (10) and the applicable WCPFC rules (11). The Commission found that there are different rules applied, depending, inter alia, on the conditions of access agreements, the conditions of the licences, the status of the vessels (domestic vessel or not), the waters that the vessels operate in (archipelagic waters or EEZ). The amount of provisions applicable is such to make it very difficult, if not impossible, for operators and authorities to understand whether a transhipment is authorised or not, and under which conditions. During its mission in November 2012, the Commission requested to the PNG authorities to provide comprehensive information about provisions applicable to transhipment operations, but such information could not be provided.

(46) In consideration of the established lack of traceability and lack of information available to PNG authorities about the fish landed, PNG cannot ensure that fishery products entering PNG or PNG-based processing plants do not stem from IUU fishing, as presented in recitals 33 to 40. The possibility to control access of IUU products and their subsequent export is also compromised by the lack of transparency of rules and regulations in relation to registration and licensing as established in recitals 41 to 45 of the Decision – as well as by the absence of clear conservation and management measures, which will be described in recitals 76 to 82.

(47) These deficiencies were also confirmed by the inability of the PNG authorities to explain why they endorsed, within the meaning of Article 14(2) of the IUU Regulation, the statement of a PNG tuna processing plant for canned tuna destined to the Union. Such statement can be endorsed only for fishery products which have been processed in a Third Country other than the flag State. In the given case, the physical verification of Member States’ authorities responsible for the import of fishery products revealed that the product presented by the importer as processed was in fact unprocessed, being frozen round tuna. It should be noted in this context that different market access rules and customs duties may apply for processed and unprocessed products. The Commission visited the PNG processing plant declared as exporter of the shipment in question during its mission to PNG in November 2012. The company could not provide any explanation and considers the request sent to the PNG authorities for endorsement of that processing statement as an error, in particular as it usually does not export frozen round fish. This is a concrete case where the Commission established that the PNG authorities have wrongly validated processing statements. The operator explained that this situation was an oversight and simple error but the authorities admitted that such situations could exist in other cases. This situation is another example of the lack of traceability and transparency that reveals inability to monitor the access of fisheries products stemming from IUU fishing to the PNG and other markets.

(48) In view of the situation explained in this Section of the Decision and on the basis of all factual elements gathered by the Commission as well as the statements made by the country, it could be established that, pursuant to Article 31(3) and 31(4) (b) of the IUU Regulation, that PNG has failed to discharge the duties incumbent upon it under international law as a coastal and market State to prevent access of fisheries products stemming from IUU fishing to its market.

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

(49) The Commission analysed whether PNG authorities effectively cooperate with the Commission, by providing a response to requests made by the Commission to investigate, provide feed-back or follow-up on IUU fishing and associated activities.

(50) While PNG authorities involved in the implementation of the catch certification scheme of the EU IUU Regulation are generally cooperative to respond and provide feedback to requests for information or verification, the reliability of correctness of their replies are compromised and undermined by the lack of transparency and the little or no possibilities to ensure traceability of fishery products as established in Section 3(1) of the Decision.

(51) In the framework of the overall assessment of the fulfilment of PNG’s duties to discharge its obligations as flag, port and coastal State, the Commission also analysed whether PNG cooperates with other flag States in the fight against IUU fishing.

(52) To that purpose, it was established during the Commission mission of November 2012 that there was a lack of willingness from PNG authorities to cooperate with flag States of vessels operating in waters under PNG jurisdiction, as the authorities were not willing to provide flag States with information pertaining to vessels’ data. This is a clear indication that PNG does not fulfil its obligations under international law (in particular Article 7(1)(a) of the UNFSA) to ensure effective conservation and management of straddling fish stocks occurring in its waters and to ensure effective and efficient prevention of IUU fishing.

(53) During that mission, the Commission tried to clarify regular inconsistencies of information received for EU imports of fishery products from PNG in relation to applicable conservation and management measures. The PNG authorities confirmed their awareness that information on catch certificates issued by flag States for fish directly landed in PNG for processing are regularly incorrect. This incorrect information in catch certificates is mainly due to the fact that PNG authorities do not share data available to them, in particular Vessel Monitoring Scheme (VMS) and landing declarations, with the flag State, and not even in cases where irregularities are established. Consequently, the flag State authority has to base its catch certificates on the information available to it, which may be incomplete, incorrect and not verifiable. PNG authorities however sign processing statements in full awareness that the catch certificates issued for the catch processed in PNG are incorrect.

(54) According to Articles 63 and 64 of UNCLOS, coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of the UNFSA further develop the obligation to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. In addition, Article 7(1)(3) of the FAO Code of Conduct recommends that States concerned in the exploitation of straddling and trans-boundary fish stocks establish a bilateral agreement of organisational arrangement to guarantee effective cooperation in order to ensure effective conservation and management of resources. This is further specified in points 28 and 51 of the IPOA IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States.

(55) In this respect, Article 25(10) of the WCPFC Convention (12) stipulates that each member of the Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned However, PNG considers that waters under its jurisdiction are not covered by the WCPFC Convention Area, as will be examined in detail in recitals 76 to 78; this affects the implementation of this provision. The performance of PNG, as described in this section, is in breach of the obligations mentioned in recital 54, as well as of WCPFC rules.

(56) The importance of efficient cooperation mechanisms has to be appraised in the context of the importance of the PNG fishery resource (as will be presented in recital 66), the predominant presence of foreign-flagged vessels in waters under PNG jurisdiction and the expanding processing industry as presented in recitals 30 and 31. Further, PNG processed fishery products enjoy privileged access conditions to the EU market through the Interim Partnership Agreement between the European Community and Pacific States; PNG committed itself in that context to strengthen rules, systems and processes to ensure effective conservation and sustainable development and management of fisheries (13).

(57) In particular, in its submission to the Commission of 5 July 2013, PNG acknowledged the need for cooperation in exchanging information with flag States, in particular VMS data. Similar representations were provided during the meeting on 12 December 2013 and with the written submission on 6 January 2014. With respect to the existence and implementation of efficient enforcement measures, the Commission assessed that PNG developed a VMS and obliges all vessels flying its flag and operating in waters under its jurisdiction to carry this equipment. However, up till now the strengthening and improvement of cooperation with flag States of vessels operations in waters under PNG jurisdiction remains an unresolved critical issue. As there are many vessels flagged to Third Countries operating in the waters of PNG, access to VMS data information kept by PNG authorities is crucial for the control and monitoring of the vessels. PNG authorities have either bilateral agreements with countries or organisational arrangements with fisheries associations or companies. Up till now the situation concerning access of the relevant flag States to VMS data remains not satisfactory and complicated. According to information collected by the Commission the PNG authorities signed such agreement with the competent authority of the Philippines, which provides, inter alia, access to VMS data. Said agreement has not been implemented. PNG authorities also submitted that trough 2014 they will progressively initiate similar arrangements with the competent authorities of all Third Countries that are fishing in PNG waters. Nevertheless, they have not provided any concrete timetable on their planning.

(58) As already described, the lack of clarity and transparency of laws and procedures, in particular in relation to vessel registration and licensing, traceability and reliability of information and data relating to landings and catch (as presented in recitals 41 to 45), as well as in relation to conservation and management of the resources (as will be described in recitals 76 to 82, makes efficient enforcement and establishment of IUU infringements impossible. This undermines also the possibility for sanctioning and effectively following-up infringements, even if all necessary enforcement powers and rights seem provided by law. Hence, in practice, PNG cannot effectively sanction offenders in such a manner as to deprive them of the benefits accruing from IUU fishing, as it is recommended in point 21 of the IPOA-IUU. The lack of clarity and transparency of laws and procedures furthermore undermines the ability of PNG to fulfil its international obligations under Article 20 of the UNFSA, in particular in answering effectively to the requests that flag States might have in implementing their obligation to sanction vessels flying their flag which are engaged in IUU fishing.

(59) With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, PNG authorities are not able to ensure traceability of operations as their systems lack of clarity and transparency. As a consequence of such shortcomings, it is not possible to establish, in a reliable way, the potential dimension of IUU fishing related activities. It is however an acknowledged fact that lack of transparency combined with the impossibility of effective controls encourages illegal behaviour.

(60) With respect to the existing capacity of the PNG authorities, it should be noted that, according to the United Nations Human Development Index (14), PNG is considered as a low human development country (156th in 186 countries in 2013), but on the threshold of a medium human development country. This is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (15) where PNG is listed in the category of a lower middle income country. The list of aid recipients of the Organisation for Economic Cooperation and Development’s (OECD) Development Assistance Committee (DAC) (OECD/DAC) as at 1 January 2013 for reporting on 2012 (16) considers PNG as a lower middle income country. In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of PNG to fulfil its cooperation and enforcement duties. Nevertheless, it should be taken into account that the human development level of PNG is increasing (from low to medium human development country) and the administrative capacity of PNG has been continuously reinforced by Union financial and technical assistance. Finally, it should be noted that the NFA enjoys, within the PNG government administration significant autonomy enabling it to develop enhanced policies in fisheries management.

(61) The Commission notes that, on the basis of information derived from the Commission missions in 2011 and 2012, it cannot be considered that the PNG authorities are lacking financial resources but rather the necessary legal and administrative environment and ensure efficient and effective performance of their duties.

(62) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(3) and (5) of the IUU Regulation, that PNG has failed to discharge the duties incumbent upon it under international law as coastal and market State in respect of cooperation and enforcement efforts.

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

(63) PNG has ratified the UNCLOS and the UNFSA. PNG is Contracting Party to WCPFC. It is Party to the FFA Convention and to the PNA concerning cooperation in the management of fisheries of common interest.

(64) The Commission analysed all information deemed relevant with respect to the status of PNG as Contracting Member of WCPFC.

(65) The Commission also analysed any information deemed relevant with respect to the agreement of PNG to apply conservation and management measures adopted by WCPFC.

(66) On the basis of comprehensive information provided by PNG on the situation of tuna fishing activities in its waters, PNG tuna stocks represent about 19 % of the Western and Central Pacific Ocean (WCPO) catch and about 11 % of the global catch (17) (15 % of the world tuna catch and 50 % catch in respect to PNA according to the PNG presentation to the Commission in 2011, as mentioned in recital 30).

(67) On the basis of the figures presented in recital 66 it appears that PNG manages important global tuna resources and thus has the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, who should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery.

(68) As described in recital 42, the FAO Code of Conduct recommends transparency in fisheries laws and their preparation as well as respective policy- and decision-making and management processes (paragraphs 6(13) and 7(1)(9) respectively). In paragraphs 11(2) and 11(3), it further specifies that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures, as well as on transparent, simple and comprehensible laws, regulations and administrative procedures.

(69) In this respect, it is noted that in breach of these obligations and recommendations, the PNG legal framework lacks provisions to ensure efficient and effective management of vessels operating in waters under PNG jurisdiction. Furthermore, the legal framework does not contain clear and transparent provisions setting out applicable conservation and management measures for all types of waters under PNG jurisdiction or where these can be found there are no clear and transparent procedures setting how their implementation should be ensured. These aspects are further analysed hereinafter.

(70) A first aspect of such a regulatory deficiency is the inadequacy of the 1998 Tuna Management Plan and the absence of a National Plan of Action against IUU fishing (NPOA IUU).

(71) It should be noted that the Tuna Management Plan provides the legal framework for management of tuna resources and applies according to its Article 3(3) to all PNG fisheries waters, including territorial and archipelagic ones.

(72) The PNG NFA acknowledged in its submission to the Commission of 5 July 2013 gaps in its legal framework, and issues affecting its management and control system. PNG recognised that the Tuna Management Plan of 1998 is outdated and should be reviewed taking into account changes in the fisheries sector, including, amongst others, regional and sub-regional conservation and management measures, license regimes and conditions, TAC limits, zonal management for archipelagic waters and EEZs, reference points, harvest control rules. Further, PNG also recognised that the fisheries management act and regulations should be revised accordingly.

(73) PNG provided with its submission dated 4 December 2013 a copy of a working draft for a new Tuna Management Plan. They have also acknowledged in their submission dated 6 January 2014 the need to revise their Tuna Management Plan and address issues in conformity with international obligations and provisions. Nevertheless, the exercise described is still on the consultative process within PNG and without final output. The established fact is that the existing Plan is obsolete and hence in breach of the obligations set out in Articles 61(2) to (5), 62 (1) and 64 of the UNCLOS concerning optimum utilisation of resources through proper conservation and management measures.

(74) Besides being outdated, the PNG Tuna Management Plan of 1998 does not reflect the reality of the PNG fishing operations, activities and industry, despite the stated requirement of its constant review (Article 4 of the PNG Tuna Management Plan, Article 28 of the PNG Fisheries Management Act). The plan provides a legal framework for activities of 100 purse seine tuna vessels, but PNG omitted to expand its coverage to reflect the actual operation of more than 200 vessels.

(75) It should also be noted that, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, PNG has not developed a NPOA IUU. This was recognised by PNG in its submission to the Commission of 5 July 2013.

(76) A second aspect of the regulatory deficiency is the absence of clear conservation and management measures adopted by PNG, on the basis of the best scientific advice and in accordance with its obligations under UNCLOS, UNFSA and WCPFC, in relation to all the waters under its national jurisdiction, including its archipelagic waters. Indeed, it has been established during the missions of the Commission in 2011 and 2012 that conservation and management rules lack transparency and clarity (as developed in recitals 77 to 82) and appear neither compatible nor based on best scientific advice (as developed in recitals 83 to 89).

(77) Waters under PNG jurisdiction are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under jurisdiction of PNG.

(78) PNG however informed the Commission that it considers that waters under its national jurisdiction (territorial sea, archipelagic waters, EEZ) are not covered by the Convention area, even though WCPFC delegated implementation of its conservation and management measures to its contracting parties. Also, while the PNA limit fishing effort with allocation of vessel days (Vessel Day Scheme (VDS)) applicable in all EEZs of the parties to the agreement, this limitation does not apply to PNG territorial and archipelagic waters.

(79) Pursuant to Articles 61 to 64 of the UNCLOS, Articles 5, 7, 8, 9, 10 of the UNFSA and the overall objective and relevant rules in the WCPFC Convention (in particular Articles 2, 5, 7, 8) it is a clear duty, responsibility and obligation of a coastal State to adopt measures compatible to those applying in the region and in the high seas to ensure the long term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilisation. The FAO Code of Conduct, in particular paragraphs 7(1), 7(2), 7(3) and 8(1), also recommends good practices to achieve these obligations.

(80) In its reply to the Commission on the mission report of 2011, PNG explained that all Commission members of WCPFC are subject to agreed conservation and management measures of WCPFC and referred to the fisheries management plans published on the official website of PNG NFA (18), which should be applicable in all waters under PNG jurisdiction (territorial sea, archipelagic waters, EEZ), in particular for straddling stocks in order to ensure the same level of conservation in all waters of their migration. It appears however that such plans cover only activities in the PNG EEZ and no corresponding measures are regulating PNG archipelagic waters.

(81) This situation leads to a lack of clarity and transparency which, in addition to the lack of transparency of PNG laws and procedures in relation to registration and licensing of fishing vessels, as explained in Sections 3(1) and 3(2) of the Decision, compromises and undermines the possibility for effective implementation of efficient conservation and management of the fisheries resources of PNG. It is current PNG practice to include the applicable conservation and management measures in undisclosed license conditions for tuna vessels. Hence, different measures may apply, depending also on undisclosed, individual license conditions.

(82) In conclusion, no clear, transparent and compatible conservation and management rule exist for PNG archipelagic waters, in breach of the obligations referred to in recital 79.

(83) Pursuant to Article 61 of the UNCLOS, Articles 5 and 6 of the UNFSA, and Articles 5 and 6 of the WCPFC Convention, coastal States must determine the allowable catch of the living resources in their EEZ, based on the best scientific evidence available to it and on the basis of a precautionary approach; coastal States also have to ensure through proper conservation and management measures that living resources and stocks in the EEZ and other waters under their jurisdiction are not endangered by over-exploitation. The FAO Code of Conduct, in particular paragraphs 7(3), 7(4) and 7(5), recommends good practices to comply with these obligations.

(84) As PNG considers that WCPFC rules do not apply to waters under its jurisdiction, it is not entirely clear what data is collected and reported to WCPFC; this may not cover assessments of all PNG fisheries waters. Reports of the WCPFC Scientific Committee regularly raise the issue of data gaps. For example, in the report of its 7th session, the WCPFC Scientific Committee noted under point 89 some inconsistencies among fleets in the reporting of skipjack and yellowfin, bigeye tuna on purse-seine logsheets and considering the importance, for scientific purposes, of accurate purse-seine catch composition data, recommended that this problem be referred to the Technical and Compliance Committee (19). Under point 37, it emphasised the uncertainty in purse-seine species composition, and urged PNG to continue improving estimates of purse-seine composition data. In its 8th session, the WCPFC Scientific Committee again raised issues of data gaps and inconsistencies (20), in relation to catch and catch composition, commented on reporting obligations under chartering arrangements and issued management recommendations for improvement (21). It also addressed the lack of data submissions or weak data of some contracting parties, some of which are operating in waters under national jurisdiction of PNG.

(85) The reports also state that an observer coverage of 100 % as required by WCPFC is not yet achieved, and PNG is not yet compliant with it, according to its last annual report submitted to the Scientific Committee in 2012 (22).

(86) The WCPFC Scientific Committee advised in its 7th meeting, that, if recent fishing practices for skipjack tuna continue, catch rate levels are likely to decline and catch should decrease as stock levels are fished down to Maximum Sustainable Yield level. Therefore, increases of fishing effort should be monitored (23).

(87) PNG does not apply any WCPFC conservation and management measures in its archipelagic waters and has no compatible measures in place. Taking into consideration the highly migratory and straddling nature of tuna resources and the importance of tuna stocks and fishing activities in PNG archipelagic waters, which are an important geographical spawning area for tuna species, this situation puts at stake any conservation effort on the tuna stock as a whole. Therefore, PNG does not ensure application of conservation and management measures in all waters under its jurisdiction in a manner compatible with requirements of WCPFC, and in accordance with its obligation to ensure that species under the jurisdiction of the coastal State are not endangered by over-exploitation.

(88) The Commission also assessed any act or omission by PNG that may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures.

(89) In this respect, the PNG Tuna Management Plan sets a limit of TAC of 338 000 metric tons per year (Article 33) and limits the number of licenses for tuna purse seiners to 100 (Article 32(2)). The current level of catch is however above 700 000 metric tons and the number of licensed purse seine vessels operating in PNG waters is more than 200. The Commission considers therefore that the existing measures fail to comply with its international obligations regarding conservation and management. As tuna is a straddling and highly migratory stock, conservation and management measures have to be consistent and compatible in the entire area of migration to be effective and sustainable, this being also the overall objective of the WCPFC Convention (24); the current Tuna Management Plan does not permit to fulfil this obligation.

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

3.4. Specific constraints of developing countries

(91) It is recalled that, according to the United Nations Human Development Index (25), PNG is considered as a low human development country (156th in 186 countries in 2012), but on the threshold of a medium human development country. This is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (26) where PNG is listed in the category of a lower middle income country. Nevertheless, according to the most recent information, the OECD/DAC of 1 January 2013 for reporting on 2012 (27), PNG is considered as a lower middle income country.

(92) It should be noted that the notification of PNG as flag State was received by the Commission in accordance with Article 20 of the IUU Regulation as of 4 February 2010. PNG confirmed, as Article 20(1) of IUU Regulation states, that it has national arrangements in place for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels.

(93) The Commission informed PNG of the various shortcomings it detected during its first mission conducted in November 2011. One year later, during its second mission in November 2012, the Commission found the situation in PNG unchanged.

(94) In its submission of 5 July 2013 PNG NFA acknowledges the continuous assistance provided by the EU to the PNG fisheries authorities through various regional and sub-regional programmes; technical assistance was also provided with respect to the fight against IUU fishing in 2011 (28).

(95) The Commission has therefore taken into consideration the development constraints of PNG and offered adequate time to PNG to implement actions in order to remedy its non-compliance with its obligations under international law in a coherent, effective and non-detrimental way since the year 2011.

(96) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission, as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of PNG fisheries governance may be impaired by its level of development. However, account taken of the nature of the established shortcomings of PNG, the assistance provided by the Union and actions taken to rectify the situation, no corroborating evidence could be established to suggest that the failure of PNG to discharge the duties incumbent upon it under international law is the result of lacking development. The development level of PNG, which is increasing, does not appear such as excuse or justify the overall performance of PNG as flag and in particular coastal State with respect to fisheries, and the insufficiency of its action to prevent, deter and eliminate IUU fishing and to ensure respective efficient monitoring, control and surveillance of fishing activities in waters under its jurisdiction.

(97) In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of PNG with respect to fisheries are not impaired by its level of development.

4. CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION OF NON-COOPERATING THIRD COUNTRIES

(98) In view of the conclusions reached above with regard to the failure of Papua New Guinea to discharge the duties incumbent upon it under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified as a country the Commission considers to be non-cooperating Third Countries in fighting IUU fishing.

(99) In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Papua New Guinea of the possibility of it being identified as a non-cooperating Third Country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Papua New Guinea. 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.

(100) Furthermore, the notification to Papua New Guinea of the possibility of being identified as a country the Commission considers to be non-cooperating for the purposes of this Decision does neither preclude nor automatically entail any subsequent step taken by the Commission or the Council for the purpose of the identification and the establishment of a list of non-cooperating countries,

HAS DECIDED AS FOLLOWS:

Sole Article

The Independent State of Papua New Guinea is hereby notified of the possibility of being identified as a Third Country that the Commission considers as non-cooperating Third Country in fighting illegal, unreported and unregulated fishing.

Done at Brussels, 10 June 2014. For the Commission Maria DAMANAKI Member of the Commission

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

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

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

(4) WCPFC Scientific Committee Eighth Regular Session, 7-15 August 2012, Busan, Republic of Korea, Annual Report to the Commission Part 1: Information on Fisheries Research and Statistics, Papua New Guinea, WCPFC-SC8-AR/CCM-18 (http://www.wcpfc.int/doc/AR-CCM-18/Papua-New-Guinea-2).

(5) Information derived from presentation provided by PNG National Fishery Authority during the Commission mission of November 2011 ‘Overview of PNG Fisheries on the implementation status of EU IUU Regulation’, and from PNG Fisheries Management Regulation 2000, certified on 25 October 2000 and gazetted on 23 November 2000 (http://www.fisheries.gov.pg/LinkClick.aspx?fileticket=25a9q0dguoo%3d&tabid=86).

(6) WCPFC Scientific Committee Eighth Regular Session, WCPFC-SC8-AR/CCM-18.

(7) OJ C 354, 17.11.2012, p. 1.

(8) No 48 of 1998 Fisheries Management Act 1998 The National Tuna Fishery Management Plan, certified on 2 February 1999, gazetted on 11 February 1999 (No. G22) (http://www.fisheries.gov.pg/LinkClick.aspx?fileticket=8cFbiMpj%2ffU%3d&tabid=87).

(9) Fisheries Management Act of the Independent State of Papua New Guinea 1998, No 48 of 1998, certified on 2 February 1999, gazetted on 11 February 1999 (No. G22) (http://www.fisheries.gov.pg/LinkClick.aspx?fileticket=43Of6hMc9e8%3d&tabid=86).

(10) Fisheries Management Regulation of the Independent State of Papua New Guinea 2000, No 2 of 2000.

(11) WCPFC Conservation and Management Measure 2009-06, Section 2.

(12) Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, done at Honolulu, 5 September 2000 (http://www.wcpfc.int/doc/convention-conservation-and-management-highly-migratory-fish-stocks-western-and-central-pacific).

(13) See for available information on EU PNG trade relations: http://ec.europa.eu/trade/policy/countries-and-regions/regions/pacific/; Interim Partnership Agreement between the European Community, of the one part, and the Pacific States, of the other part (OJ L 272, 16.10.2009, p. 2).

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

(15) OJ L 378, 27.12.2006, p. 41.

(16) http://www.oecd.org/dac/stats/daclistofodarecipients.htm

(17) WCPFC Scientific Committee Eighth Regular Session, WCPFC-SC8-AR/CCM-18.

(18) http://www.fisheries.gov.pg/

(19) Summary report of the WCPFC Scientific Committee, Seventh Regular Session, Pohnpei, Federated States of Micronesia 9–17 August 2011 (http://www.wcpfc.int/node/2896).

(20) Summary report of the WCPFC Scientific Committee Eighth Regular Session 7-15 August 2012 (http://www.wcpfc.int/node/4587), section 3.1.

(21) Summary report of the WCPFC Scientific Committee Eighth Regular Session, points 69-71.

(22) WCPFC Scientific Committee Eighth Regular Session, WCPFC-SC8-AR/CCM-18.

(23) Summary report of the WCPFC Scientific Committee, Seventh Regular Session, points 35 and 36.

(24) Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, articles 2 and 5 in particular.

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

(26) OJ L 378, 27.12.2006, p. 41.

(27) DAC List of ODA Recipients (http://www.oecd.org/dac/stats/daclistofodarecipients.htm).

(28) Accompanying developing countries in complying with the Implementation of Regulation (EC) No 1005/2008 on Illegal, Unreported and Unregulated (IUU) Fishing, EuropeAid/129609/C/SER/Multi.