Proposal for a COUNCIL REGULATION on the conclusion of the Protocol establishing for the period 1 July 2000 to 30 June 2001 the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea

(presented by the Commission)

EXPLANATORY MEMORANDUM

The Protocol to the Fisheries Agreement between the European Community and Equatorial Guinea expired on 30.6.2000. The Parties have decided to extend the Protocol by one year. The new Protocol was initialled by both Parties on 16.6.2000 and fixes the technical and financial conditions governing the fishing activities of Community vessels in the waters of Equatorial Guinea during the period 1.7.2000 to 30.6.2001.

The Commission proposes, on this basis, that the Council adopt the new Protocol.

A proposal for a Council Decision on the provisional application of the new Protocol pending its definitive entry into force is the subject of a separate procedure.

2000/0287 (CNS)

Proposal for a COUNCIL REGULATION on the conclusion of the Protocol establishing for the period 1 July 2000 to 30 June 2001 the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea

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) and the first subparagraph of Article 300(3) thereof,

Having regard to the proposal from the Commission [1],

[1] OJ ...

Having regard to the opinion of the European Parliament [2],

[2] OJ....

Whereas:

(1) Pursuant to the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea [3], the two Parties conducted negotiations with a view to extending the Protocol which expired on 30 June 2000.

[3] OJ L 188, 16.7.1984, p. 2. Agreement amended by the Agreement approved by Regulation (EEC) No 252/87 (OJ L 29, 30.1.1987, p. 1).

(2) As a result of these negotiations, a new Protocol establishing the fishing opportunities and financial compensation provided for in the abovementioned Agreement for the period 1 July 2000 to 30 June 2001 was initialled on 16 June 2000.

(3) It is in the Community's interest to approve the Protocol,

HAS ADOPTED THIS REGULATION:

Article 1

The Protocol establishing for the period 1 July 2000 to 30 June 2001 the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea is hereby approved on behalf of the Community.

The text of the Protocol is attached to this Regulation.

Article 2

The fishing opportunities provided for in the Protocol shall be allocated among the Member States as follows:

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If licence applications from those Member States do not exhaust the fishing opportunities provided for in the Protocol, the Commission may consider licence applications from any other Member State.

Article 3

The President of the Council is hereby authorised to designate the persons empowered to sign the Protocol in order to bind the Community.

Article 4

This Regulation shall enter into force on the third day following its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

For the Council

The President

PROTOCOL

establishing, for the period from 1 July 2000 to 30 June 2001, the fishing rights and financial compensation provided for in the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea

Article 1

For a period of one year from 1 July 2000, the fishing rights granted under Article 2 of the Agreement shall be:

-freezer tuna seiners: 30 vessels,

-surface longliners: 30 vessels,

-pole-and-line tuna vessels: 8 vessels.

Article 2

1. The financial compensation referred to in Article 6 of the Agreement shall be, for the period referred to in Article 1, EUR 200 000. This compensation shall cover a catch weight in the waters of Equatorial Guinea of 4 000 tonnes of tuna. If the tuna caught by Community vessels in Equatorial Guinea's fishing zone exceeds this weight, the amount referred to above shall be proportionately increased.

2. The use to which its compensation is put shall be the sole responsibility of the Government of the Republic of Equatorial Guinea.

3. The financial compensation shall be paid into account No 4160 of the Treasury of Equatorial Guinea, opened at the Banque des États d'Afrique Centrale (BEAC) in Malabo. Any changes shall be notified to the Commission of the European Communities.

Article 3

The Community shall also contribute, during the period referred to in Article 1, the sum of EUR 16 700 towards the financing of an Equatorial Guinea scientific or technical programme to improve information on the fishery resources within the exclusive economic zone of Equatorial Guinea.

This sum shall be made available to the Government of the Republic of Equatorial Guinea and paid into the account indicated by the Equatorial Guinea authorities.

The competent authorities of Equatorial Guinea shall send the Commission a brief report on how the funds are used.

Article 4

The two Parties agree that improving the skills of those involved in sea fishing is a vital element in the success of their cooperation. To that end, the Community shall make it easier for nationals of Equatorial Guinea to find places in training establishments in its Member States and shall provide for that purpose, during the period referred to in Article 1, awards for study and practical training in the various scientific, technical and economic disciplines relating to fisheries. The awards may also be used in any State linked with the Community by a cooperation agreement. The total cost of the awards may not exceed EUR 46 700. At the request of the Equatorial Guinea authorities, part of this sum may be used to cover the costs of participating in international meetings concerning fisheries.

The sum shall be payable as and when it is used.

Article 5

The Community shall also contribute EUR 56 700 to the financing of programmes for fisheries surveillance bodies and for non-industrial fishing.

These funds shall be made available to the Ministry of Fisheries and Forests, which shall communicate the bank account to which payment is to be made.

The sum shall be payable as and when it is used.

Article 6

Should the Community fail to make the payments provided for in Articles 2 and 3, the application of this Protocol may be suspended.

Article 7

The Annex to the Agreement between the European Economic Community and the Government of the Republic of Equatorial Guinea on fishing off the coast of Equatorial Guinea is hereby repealed and replaced by the Annex to this Protocol.

Article 8

This Protocol shall enter into force on the date on which it is signed.

It shall apply with effect from 1 July 2000.

ANNEX

CONDITIONS FOR THE EXERCISE OF FISHING ACTIVITIES BY COMMUNITY VESSELS IN EQUATORIAL GUINEA'S FISHING ZONE

A. Licence application and issuing formalities

The procedure for applications for, and issue of, licences enabling vessels flying the flags of the Member States of the Community to fish in Equatorial Guinea's fishing zone shall be as follows.

The competent authorities of the Community shall present to the Ministry of Fisheries and Forests of the Republic of Equatorial Guinea, via the Delegation of the Commission of the European Communities in Equatorial Guinea, an application for each vessel wishing to fish under the Agreement.

Applications shall be made on the forms provided for that purpose by the competent authorities of the Republic of Equatorial Guinea, a specimen of which is attached hereto (Appendix 1).

Once signed, the licences shall be issued by the Equatorial Guinea authorities to the shipowners or their representatives via the Delegation of the Commission of the European Communities in Equatorial Guinea within 15 working days of the date on which the application was submitted.

However, in cases of proven force majeure, at the request of the European Community a vessel's licence shall be replaced by a new licence for another vessel with identical characteristics. The owner of the vessel being replaced shall return the cancelled licence to the Ministry of Fisheries and Forests of the Republic of Equatorial Guinea via the Delegation of the Commission of the European Communities.

The new licence shall indicate:

-the date of issue,

-the fact that the licence cancels and replaces that granted to the previous vessel.

In this case, no new lump sum shall be due.

The licence document must be held on board at all times. However, on receipt of the notification of the advance payment sent by the Commission of the European Communities to the authorities of Equatorial Guinea, the vessel will be included on a list to be notified to the fisheries control authorities of Equatorial Guinea. Pending receipt of the licence document, a fax copy of this licence document may be obtained and shall be kept on board, which will authorise the vessel to fish pending delivery on board of the licence document.

Licences shall be valid for a period of one year. They shall be renewable.

The fees shall be EUR 20 per tonne caught within Equatorial Guinea's fishing zone.

The competent authorities of Equatorial Guinea shall indicate the detailed rules for payment of the fees, in particular the bank accounts and currencies to be used.

Licences shall be issued following payment of a lump sum of EUR 1 300 a year for each tuna seiner, EUR 200 a year for each pole-and-line tuna vessel and EUR 300 a year for each surface longliner.

B. Declaration of catches and breakdown of fees due by shipowners

The captain shall complete a fishing form corresponding to the model given in Appendix 2 for each period spent fishing in Equatorial Guinea's fishing zone.

The form, which must be legible and signed by the captain of the ship, shall be sent without delay to the Office of Overseas Scientific and Technical Research (ORSTOM) or the Spanish Oceanographical Institute (IEO), for processing.

Should this provision not be adhered to, the Government of Equatorial Guinea reserves the right to suspend the licence of the offending vessel until the formality has been complied with and to apply the penalties laid down under Fisheries Law No 2/1987 of 16 February 1987.

Member States shall inform the Commission of the European Communities before 15 April of the tonnages caught during the past year, as confirmed by the scientific institutes. On the basis of those figures the Commission shall establish a breakdown of the fees due for the fishing year, which it shall then send to the authorities of the Republic of Equatorial Guinea.

Shipowners shall be notified by the Commission of the European Communities of this breakdown by the end of April at the latest and shall have 30 days in which to meet their financial obligations. The shipowner cannot recover the balance in cases where the amount payable in respect of actual fishing operations is less than the advance payment.

C. Inspection and monitoring

Any Community vessel fishing in Equatorial Guinea's fishing zone shall allow on board any official of Equatorial Guinea responsible for inspection and monitoring and shall assist him in the accomplishment of his duties. The official must not remain on board any longer than is necessary for the verification of catches by random checks and for any other inspection relating to fishing activities.

D. Fishing zones

The vessels referred to in Article 1 of the Protocol shall be authorised to fish in waters beyond four nautical miles from the base lines.

E. Entering and leaving the zone

Within three hours of entering or leaving the zone and every three days during their fishing activities in Equatorial Guinea's waters, vessels shall be obliged to communicate their position and the volume of the catch on board direct to the Equatorial Guinea authorities, preferably by fax or, failing that, by radio in the case of vessels not equipped with fax.

The fax number and radio frequency shall be notified on issue of the licence.

A copy of the fax messages or record of radio communications shall be kept by the Equatorial Guinea authorities and the shipowners until both parties have approved the final statement of fees referred to in point B.

A vessel caught fishing without having notified the Equatorial Guinea authorities of its presence shall be considered an unlicensed vessel.

F. Procedure in case of boarding

1. The Delegation of the Commission of the European Communities in Equatorial Guinea shall be notified within two working days of any boarding within the Equatorial Guinea exclusive economic zone of a fishing vessel flying the flag of a Member State of the Community and fishing under an agreement concluded between the Community and a third country. The Delegation shall at the same time receive a brief report of the circumstances and reasons leading to the boarding.

2. Before any measures regarding the master or the crew of the vessel or any action regarding the cargo and equipment of the vessel are considered, other than those to safeguard evidence relating to the presumed infringement, a consultation meeting shall be held, within one working day after receipt of the abovementioned information, between the Delegation of the Commission of the European Communities in Equatorial Guinea, the Fisheries Department and the inspection authorities, possibly attended by a representative of the Member State concerned. At the meeting, the parties shall exchange any relevant documentation or information helping to clarify the circumstances of the established facts. The shipowner or his representative shall be informed of the outcome of the meeting and of any measures resulting from the boarding.

3. Before any judicial proceedings, an attempt shall be made to resolve the presumed infringement through a compromise procedure. This procedure shall end no later than three working days after the boarding.

4. Should the case not be settled by means of compromise, and the master therefore be brought before a competent Equatorial Guinea judicial body, a reasonable bank security shall be fixed by the competent authority within two working days, following the conclusion of the compromise procedure, pending the judicial decision. The bank security shall be released by the competent authority once the master of the vessel concerned has been acquitted by the judicial decision.

5. The vessel and its crew shall be released either:

-at the end of the consultation meeting, if the established facts permit, or

-on receipt of payment of a fine (compromise procedure), or

-once a bank security is deposited (judicial proceedings).

6. Should one of the Parties consider that there is a problem in the application of the abovementioned procedure, it may request urgent consultations under Article 8 of the Agreement.

Appendix 1

REPUBLIC OF EQUATORIAL GUINEA APPLICATION FORM FOR A FISHING LICENCE

1. Period of validity: from to

2. Name of vessel:

3. Name of shipowner:

4. Port and registration number:

5. Type of fishing:

6. Authorised mesh size:

7. Length of vessel:

8. Width of vessel:

9. Gross registered tonnage:

10. Hold capacity:

11. Engine rating:

12. Type of construction:

13. Usual number of seamen aboard:

14. Radio/electrical equipment:

15. Master's name:

The above information is the sole responsibility of the shipowner or his representative.

Date of application:

Appendix 2

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FINANCIAL STATEMENT

1. TITLE OF OPERATION: New Protocol establishing the fishing opportunities and financial compensation under the EC/Equatorial Guinea Fisheries Agreement

2. BUDGET HEADING INVOLVED: B7-8000

3. LEGAL BASIS: Article 37 of the Treaty, in conjunction with Article 300(2) and (3) thereof.

EC/Equatorial Guinea Agreement (OJ L 188, 16.7.1984)

4. DESCRIPTION:

4.1 General objective: Protocol and Annex for one year

4.2 Period covered and arrangements for renewal

-Period: 1.7.2000 to 30.6.2001

-Renewal arrangements: negotiation prior to the expiry of the Protocol

5. CLASSIFICATION OF EXPENDITURE/REVENUE:

5.1 CE

5.2 DA

5.3 Type of revenue

6. TYPE OF EXPENDITURE/REVENUE:

-Other: financial compensation paid to a non-member country in exchange for fishing opportunities granted by it and set out in the Protocol.

7. FINANCIAL IMPACT

7.1 Method of calculating total cost of operation (definition of unit costs): see Annex to the Protocol.

7.2 Itemised breakdown of cost

in EUR million (current prices)

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7.3 Schedule for proposed new operation

The Commission will send the budget authority a request for a transfer to be able to make the payment due on 31 December 2000. In accordance with the joint declaration on improving the budget authority's information on fisheries agreements, the Commission will inform the budget authority of the reasons for this situation.

(EUR million)

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8. FRAUD PREVENTION MEASURES (RESULTS OF MEASURES TAKEN)

Since financial compensation is paid by the Community for services rendered (fishing opportunities), it is used by the authorities of the non-member country as they think fit, provided they report to the Community, as provided for in each agreement, on the use of certain funds (contribution to the scientific programme).

The Agreement also provides for Community vessels to submit catch declarations.

9. ELEMENTS OF COST-EFFECTIVENESS ANALYSIS

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In terms of the benefits of this tuna Agreement, the unit cost of each tonne of tuna caught is EUR 80 payable by the Community and EUR 20 payable by shipowners. The average commercial value of a tonne of tuna is EUR 1 000. Because tuna is such a highly migratory species, actual catches taken in a given zone can fluctuate greatly from one fishing year to the next.

In all tuna agreements, the catches taken by the Community fleet in the waters of the non-member country cannot be known in advance. The Community therefore pays a fixed amount which is directly proportionate to an expected catch weight ("reference weight") calculated on the basis of the average catches recorded during previous years, adjusted where necessary according to the number of vessels authorised to fish. If the expected catch weight is exceeded, an additional amount is paid. If the expected catch is not taken, the non-member country keeps the amount initially paid.

The guidelines laid down by the Council for negotiating fisheries agreements with the ACP States specify that account must be taken of the Community's interest in maintaining or establishing fisheries relations with the countries concerned.

In the case of Equatorial Guinea, average annual catches of around 4 000 tonnes a year were recorded during the 1997-2000 Protocol (1998: 4 004; 1999: 4 635), while the reference weight was 4 000 tonnes per year.

The total financial compensation amounts to EUR 320 100. EUR 120 100 of that amount is earmarked specifically for training, scientific research, marine surveillance and assistance for non-industrial fisheries. This shows the Commission's concern to ensure not only the development of fisheries activities for Community vessels but also sustainable development of fisheries in Equatorial Guinea.

In addition to the direct sale value of catches, the Agreement also offers the following advantages:

-guaranteed employment on board fishing vessels,

-the multiplier effect on jobs for the ports, auctions, processing factories, shipyards and service industries in the regions concerned,

-these jobs are created in regions where there are no alternatives to fishing,

-guaranteeing the supply of fishery products to the Community market.

Clearly, in addition to these advantages, there is the importance of relations with Equatorial Guinea, both in the fisheries sector and in the political sphere.

10. ADMINISTRATIVE EXPENDITURE (PART A OF THE GENERAL BUDGET)

No impact on administrative expenditure.