Denouncing the Partnership Agreement in the fisheries sector between the European Community and the Union of the Comoros, adopted by Council Regulaction (EC) No 1563/2006 of 5 October 2006

EXPLANATORY MEMORANDUM

The Partnership Agreement in the fisheries sector between the European Community and the Union of the Comoros (referred to below as ‘the Comoros’) provides for its termination by either party in the event of serious circumstances, such as failure to comply with undertakings made by the Parties with regard to combating illegal, unreported and unregulated fishing (referred to below as ‘IUU fishing’). Termination of the agreement requires written pre-notification by the party seeking the termination, which must be submitted at least six months in advance of the termination.

Pursuant to Article 31 of Council Regulation (EC) No 1005/2008 (‘the IUU Regulation’), the Commission can identify third countries which it considers to be failing to cooperate in combating IUU fishing. A third country may be identified as a non-cooperating third country if it fails to carry out the duties incumbent upon it under international law, as a flag, port, coastal or market state, to take action to prevent, deter and eliminate IUU fishing.

In accordance with Article 32 of the IUU Regulation, the Comoros was notified on 1 October 2015 by Commission Decision of the possibility of being identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.

Following this decision, the Commission opened a dialogue with the Comoros which was conducted in accordance with the requirements laid down in the IUU Regulation. The dialogue was based on an action plan proposed by the Commission to the Comoros to rectify the shortcomings. The Comoros did not take, within reasonable time, the necessary remedial action to remove the concerns identified.

As the Comoros failed to carry out its duties under international law as a flag, port, coastal or market state and to take action to prevent, deter and eliminate IUU fishing, it has been identified, in accordance with Article 31 of the IUU Regulation, as a non-cooperating third country, by Commission Implementing Decision (EU) 2017/889 of 23 May 2017. Following this identification the Comoros still failed take the necessary remedial action.

The main shortcomings that justified this Decision had to do with: (i) the Comorian authorities' flag of convenience policy; (ii) evidence of illegal fishing activities by the Comorian fleet; (iii) the national authorities' poor or non-existent monitoring and control capacities; and (iv) the Comoros' outdated legal framework for fisheries.

In accordance with Article 33 of the IUU Regulation, the Comoros has since been added, by Council Implementing Decision (EU) 2017/1332, to the list of non-cooperating third countries established by Implementing Decision 2014/170/EU on 11 July 2017.

Placing a third country on the list of countries failing to cooperate in combating IUU fishing activities requires that the measures referred to in Article 38 of the IUU Regulation must be taken. Among these measures, the Commission is to propose the denunciation of any standing bilateral fisheries agreement with the Comoros which provides for termination of the agreement in case of failure to comply with undertakings made by them with regard to combating IUU fishing.

Since the Comoros has been placed on the list of non-cooperating countries, the Commission considers it necessary to propose to the Council that it, the Commission, initiate the termination of the Fisheries Partnership Agreement between the European Community and the Comoros.

The Lisbon treaty empowers the Commission to represent the Union vis-à-vis non-EU countries. This implies that it is incumbent on the Commission, on behalf of the EU, to notify the Comoros of the Council and the Union's decision to terminate the Partnership Agreement with six months notice and a consultation between the Parties before the agreement is terminated (Article 12 of the Fisheries Agreement between the EU and the Comoros).

The legal basis for this proposal is Article 43 (2) and in conjunction with Article 218 (6) (a) of the TFEU. Following the doctrine of ‘actus contrarius’, the legal basis used to terminate an international agreement should be the same as the one used for its conclusion. This means that the European Parliament is required to consent to this proposal before it is adopted by the Council.

The proposal for the termination of this agreement should not delay the effects of Art 38(8) of the IUU Regulation. Hence, the Commission should request the Council to ask the European Parliament to agree upon a time-limit of three months for giving its consent to the proposal.

1.CONTEXT OF THE PROPOSAL

•Reasons for and objectives of the proposal

n/a

•Consistency with existing policy provisions in the policy area