[pic] | COMMISSION OF THE EUROPEAN COMMUNITIES |

Brussels, 10.8.2007

COM(2007) 467 final

Proposal for a

COUNCIL DECISION

on the conclusion of consultations with the Republic of the Fiji Islands under Article 96 of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation Instrument

(presented by the Commission)

EXPLANATORY MEMORANDUM

On 27 February 2007 the European Union decided to open consultations with the Republic of the Fiji Islands under Article 96 of the ACP-EU Partnership Agreement, hereinafter referred to as the Cotonou Agreement. This decision was taken because the military take-over that took place in Fiji on 5 December 2006 constituted a violation of all three essential elements listed in Article 9 of the Cotonou Agreement: human rights, democratic principles and the rule of law. After substantial preparatory contacts between the parties, formal consultations began on 18 April 2007 under Article 96 of the Cotonou Agreement and Article 37 of the Development Cooperation Instrument.

The meeting was constructive and forward-looking, and allowed for a frank exchange of views. It was attended by three representatives of Fiji's Interim Government, who had the opportunity to present the Interim Government's views. In addition, Fiji presented a written submission, of which the EU took note. A group of Ambassadors from ACP countries also took part in the consultations together with representatives from the ACP Secretariat.

The Interim Government of Fiji agreed a number of commitments at the meeting regarding the three essential elements. These commitments are:

A. Respect for Democratic Principles

Commitment No.1

That free and fair parliamentary elections take place within 24 months from 1 March 2007 subject to the findings of the assessment to be carried out by the independent auditors appointed by the Pacific Islands Forum Secretariat. The processes leading to, and the holding of the elections shall be jointly monitored, adapted and revised as necessary on the basis of mutually agreed benchmarks. This implies in particular:

- That by 30 June 2007 the Interim Government will adopt a schedule setting out dates for the completion of the various steps to be taken in preparation for the new Parliamentary Elections;

- That the schedule specifies the timing of census, redrafting of boundaries and electoral reform;

- That determination of boundaries and electoral reform shall be carried out in accordance with the Constitution;

- That measures will be taken to ensure the functioning of the Elections Office including the appointment of a Supervisor of Elections by 30 September 2007 in accordance with the Constitution;

- That the appointment of the Vice President shall be made in accordance with the Constitution;

Commitment No.2

That the Interim Government, when adopting major legislative, fiscal and other policy initiatives and changes, shall take into account consultations with civil society and all other relevant stakeholders.

B. Rule of Law

Commitment No.1

That the Interim Government shall use best endeavours to prevent statements by security agencies destined to intimidate.

Commitment No. 2

That the Interim Government upholds the 1997 Constitution, and guarantees the normal and independent functioning of Constitutional institutions such as the Fiji Human Rights Commission, Public Service Commission, Constitutional Offices Commission. The substantial independence and functioning of the Great Council of Chiefs will be preserved.

Commitment No. 3

That the independence of the judiciary is fully respected, that it is allowed to work freely and that its rulings are respected by all concerned parties, in particular:

- That the Interim Government undertakes that the tribunal pursuant to Section 138 (3) of the Constitution be appointed by 15 July 2007;

- That any appointment and/or dismissal of judges is henceforth carried out in strict conformity with Constitutional provisions and procedural rules;

That no instances whatsoever occur, of whatever form, of interference by the military and the police or by the Interim Government with the judicial process, including full respect for the legal profession.

Commitment No. 4

That all criminal proceedings linked to corruption are dealt with through the appropriate judicial channels and that any other bodies that may be set up to investigate alleged cases of corruption will operate within constitutional boundaries.

C. Human Rights and Fundamental Freedoms

Commitment No. 1

The Interim Government will take all necessary steps to facilitate that all allegations of human rights infringements are investigated or dealt with in accordance with the various procedures and forums under the laws of the Fiji Islands.

Commitment No. 2

The Interim Government intends to lift the Public Emergency Regulations in May 2007 subject to any threats to national security, public order and safety.

Commitment No. 3

The Interim Government is committed to ensuring that the Fiji Human Rights Commission functions with full independence and in accordance with the Constitution.

Commitment No. 4

That the freedom of expression and the freedom of the media, in all its forms are fully respected as provided in the Constitution.

D. Follow-up of Commitments

Commitment No. 1

That the Interim Government undertakes to maintain a regular dialogue to allow verification of progress made and gives EU and EC authorities/representatives full access to information on all matters linked to human rights, the peaceful restoration of democracy and the rule of law in Fiji.

Commitment No. 2

That the Interim Government cooperates fully with eventual missions from the EU and the EC for assessing and monitoring progress.

Commitment No. 3

That the Interim Government sends progress reports every three (3) months starting 30 June 2007 regarding the essential elements of the Cotonou Agreement and the commitments.

It is noted that certain issues can only be effectively addressed through a pragmatic approach which acknowledges the realities of the present and which focuses on the future.

________

Provided the Interim Government respects these commitments, constitutional democracy will be restored not later than 1 March 2009. Under these conditions, the armed forces would return to the role they have under the Constitution, and would refrain from any illegal involvement in the politics of the country.

In the spirit of partnership on which the Cotonou Agreement is built, and in view of the important commitments made by Fiji, and hence the positive outcome of the consultations, the EU expressed its readiness to support the process of transition. In particular, the EU will continue and step up dialogue with the Interim Government of Fiji to ensure the swiftest possible return to full respect for human rights, democracy and the rule of law, without which full normalisation of cooperation with Fiji is not possible. The dialogue will be conducted with the aim of contributing to the establishment of a durable democratic political order, addressing the problem of Fiji's "coup culture" in order to bring the country the democracy and stability needed to protect human dignity and optimal conditions for sustainable development. The EU will also further strengthen dialogue and cooperation with the Pacific Islands Forum as well as its member countries, regarding Fiji. The Pacific Islands Forum plays a pivotal role in addressing Fiji's crisis.

The EU has stated its preparedness to follow developments very closely, on the basis of the monitoring and verification commitments undertaken by Fiji. The EU will verify the progress towards implementation of the commitments. In this context it is of particular importance that early measures are taken to ensure credible elections take place not later than 1 March 2009.

At the conclusion of the consultations, in view of the positive outcome of the dialogue thus far, the Commission proposes to adopt appropriate measures under Article 96 (2)(c) of the Cotonou Agreement and Article 37 of the Development Cooperation Instrument, as set out in the attached decision.

The measures are proposed with a view to supporting the process of transition, which is acknowledged to have delivered some positive results, while motivating the Interim Government to firmly progress regarding the essential elements of the Cotonou Agreement.

An enhanced political dialogue will be conducted with the Fijian authorities over the monitoring period in order to assess progress regarding the essential elements of the Cotonou Agreement.

If implementation of the commitments speeds up, or, on the contrary slows down, stops or backslides, the EU reserves the right to adjust the appropriate measures by means of a new Council decision amending the one proposed here.

In view of the above, and in accordance with Articles 3 and 37 of the Development Cooperation Instrument and Articles 9 and 96 of the Cotonou Agreement, the Commission proposes that the Council concludes the consultations with the Republic of the Fiji Islands and adopts the attached Decision.

Proposal for a

COUNCIL DECISION

on the conclusion of consultations with the Republic of the Fiji Islands under Article 96 of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation Instrument

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community,

Having regard to the ACP-EC Partnership Agreement signed in Cotonou on 23 June 2000[1] and revised in Luxemburg on 25 June 2005[2], and in particular Article 96 thereof,

Having regard to the Internal Agreement on measures to be taken and procedures to be followed for the implementation of the ACP-EC Partnership Agreement[3], and in particular Article 3 thereof,

Having regard to the Development Cooperation Instrument[4], and in particular Article 37 thereof,

Having regard to the proposal from the Commission,

Whereas:

(1) The essential elements referred to in Article 9 of the Cotonou Agreement have beenviolated.

(2) The values referred to in Article 3 of the Development Cooperation Instrument have been violated.

(3) On 18 April 2007, pursuant to Article 96 of the Cotonou Agreement and Article 37 of the Development Cooperation Instrument, formal consultations began with the ACP countries and the Republic of the Fiji Islands during which the Fijian authorities gave specific commitments to remedy the problems identified by the European Union and to implement them.

(4) Some substantive initiatives have been taken in respect of some of the commitments referred to above; nevertheless many important commitments concerning essential elements of the Cotonou Agreement and the Development Cooperation Instrument have yet to be implemented,

HAS DECIDED AS FOLLOWS:

Article 1

Consultations with the Republic of the Fiji Islands under Article 96 of the Cotonou Agreement and Article 37 of the Development Cooperation Instrument are hereby concluded.

Article 2

The appropriate measures set out in the annexed letter are hereby adopted as appropriate measures under Article 96(2)(c) of the Cotonou Agreement and Article 37 of the Development Cooperation Instrument.

Article 3

This Decision shall enter into force on the day of its adoption. It shall be published in the Official Journal of the European Union.

It shall be valid for 24 months from the date of its adoption by the Council. It shall be reviewed regularly at least once every six months

Done at Brussels,

For the Council

The President

ANNEX

Draft letter

H.E. Ratu Josefa ILOILOPresident of the Republic of the Fiji IslandsSuvaFiji

Excellency,

The European Union attaches great importance to the provisions of Article 9 of the Cotonou Agreement and Article 3 of the Development Cooperation Instrument. The ACP-EC partnership is founded on respect for human rights, democratic principles and the rule of law, which form the essential elements of the Cotonou Agreement, and form the basis of our relations.

On 11 December 2006 the Council of the European Union condemned the military takeover in Fiji.

Under Article 96 of the Cotonou Agreement, and considering that the military takeover which took place on 5 December 2006 constituted a violation of the essential elements listed in Article 9 of that Agreement, the EU invited Fiji to consultations in order, as provided for in the Agreement, to thoroughly examine the situation and, where necessary, take steps to remedy it.

The formal part of these consultations began in Brussels on 18 April 2007. The Interim Government of Fiji made a presentation based on a submission dated 18 April 2007 on the reasons for the military takeover of 5th December 2006, on developments in the country's situation since the takeover, and on the Interim Government's programme for the transitional period.

The EU took note of the Interim Government's submission of 18 April 2007 to the EU.

For its part, the EU was pleased that the Interim Government confirmed a number of key commitments regarding human rights and fundamental freedoms, respect for democratic principles and the rule of law, as noted below, and proposed positive steps regarding their implementation. Fiji also agreed to close cooperation regarding the monitoring and verification of the commitments.

Most of the commitments made in the context of the consultations will be implemented over an extended period, and it is consequently necessary to monitor and verify their implementation closely over time. The EU underlines that, following the credible general elections held in Fiji as recently as May 2006 and in the light of the findings and recommendations of the EU Election Monitoring Mission, and notably the final report from the EU Chief Observer, MEP Istvan Szent-Ivanyi, the EU is of the view that new and credible elections can be held well within the agreed deadline of 28 February 2009.

The EU stresses the importance of early and full compliance with the agreed commitments listed in annex.

The EU notes that the Interim Government, in accordance with the agreed commitments, has lifted the Public Emergency Regulations on 31 May 2007 and accepted the findings and recommendations of the Pacific Islands Forum independent election experts on 19 June 2007.

In the spirit of partnership that underlies the Cotonou Agreement, and in the light of the positive outcome of the consultations, the EU expressed its readiness to support implementation of Fiji's commitments.

The EU has adopted the following appropriate measures under Article 96(2)(c) of the revised Cotonou Agreement and Article 37 of the Development Cooperation Instrument:

- humanitarian aid as well as direct support to civil society may continue;

- cooperation activities under way and/or in preparation, in particular under the 8th and 9th EDFs may continue;

- the 9th EDF End-of-term Review may proceed ;

- cooperation activities, which would help the return to democracy and improve governance, may be pursued, save under very exceptional circumstances;

- implementation of the sugar reform accompanying measures for 2006 may proceed. The financing agreement was signed at the technical level by Fiji on 19 June 2007. It is noted that the financing agreement includes a suspension clause;

- the Interim Government's acceptance on 19 June 2007 of the report of 7 June 2007 by the Pacific Islands Forum's independent election experts is in line with Commitment n° 1 agreed on 18 April 2007 between the Interim Government and the EU. Consequently, the preparation and eventual signing of the multi-annual indicative programme for sugar reform accompanying measures for 2008-2010 can proceed;

- the finalisation, signing at the technical level and implementation of the Country Strategy Paper and National Indicative Programme for the 10th EDF with an indicative financial envelope, as well as the possible allocation of an incentive tranche of up to 25% of this sum, will be subject to respect of the commitments made with regard to human rights and the rule of law; notably that the Interim Government upholds the Constitution; that the independence of the judiciary is fully respected; that all allegations of human rights infringements are investigated or dealt with in accordance with the various procedures and forums under the laws of the Fiji Islands and that the Interim Government shall use best endeavours to prevent statements by security agencies destined to intimidate;

- the 2007 sugar allocation will be zero;

- the 2008 sugar allocation, will become available subject to evidence of credible and timely preparation of elections in accordance with the agreed commitments; notably regarding census, redrafting of boundaries and electoral reform in accordance with the Constitution; that measures will be taken to ensure the functioning of the Elections Office, including the appointment by a Supervisor of Elections by 30 September 2007 in accordance with the Constitution;

- the 2009 sugar allocation will become available subject to a legitimate government being in place;

- the 2010 sugar allocation will depend on progress made in implementing the 2009 sugar allocation and the continuation of the democratic process;

- additional support for the preparation and implementation of key commitments, in particular in support of the preparation and/or holding of elections, could be considered over and above what is described in this letter;

- regional cooperation, and Fiji's participation in it, is unaffected;

- cooperation with the European Investment Bank and the Centre for the Development of Enterprise may continue subject to the timely fulfilment of commitments made.

Follow-up of the commitments will be in accordance with the commitments on monitoring in terms of regular dialogue, cooperation with missions and reporting, as referred to in annex.

Furthermore, the EU expects Fiji to cooperate fully with the Pacific Islands Forum regarding the implementation of the recommendations by the Eminent Persons' Group, as endorsed by the Forum Foreign Ministers at their meeting in Vanuatu on 16 March 2007.

The European Union will continue to follow the situation in Fiji closely. Under Article 8 of the Cotonou Agreement, an enhanced political dialogue will be conducted with Fiji to ensure the respect for human rights, restoration of democracy and respect for the rule of law.

If there is a slowing down, breakdown or reversal in the implementation by the Interim Government of the commitments made, the EU reserves the right to adjust the appropriate measures.

The EU stresses that Fiji's privileges in its cooperation with the EU depend on respect for the essential elements of the Cotonou Agreement and for the values referred to in the Development Cooperation Instrument. In order to convince the EU that the interim government is fully prepared to follow-up on the commitments given, it is essential that early and substantial progress is made in the fulfilment of the agreed commitments.

Yours sincerely,

Done at Brussels,

For the Commission

For the Council

ANNEX TO THE ANNEX

AGREED COMMITMENTS WITH THE REPUBLIC OF THE FIJI ISLANDS

A. Respect for Democratic Principles

Commitment No.1

That free and fair parliamentary elections take place within 24 months from 1 March 2007 subject to the findings of the assessment to be carried out by the independent auditors appointed by the Pacific Islands Forum Secretariat. The processes leading to and the holding of the elections shall be jointly monitored, adapted and revised as necessary on the basis of mutually agreed benchmarks. This implies in particular:

- That by 30 June 2007 the Interim Government will adopt a schedule setting out dates for the completion of the various steps to be taken in preparation for the new Parliamentary Elections;

- That the schedule specifies the timing of census, redrafting of boundaries and electoral reform;

- That determination of boundaries and electoral reform shall be carried out in accordance with the Constitution;

- That measures will be taken to ensure the functioning of the Elections Office including the appointment of a Supervisor of Elections by 30 September 2007 in accordance with the Constitution;

- That the appointment of the Vice President shall be made in accordance with the Constitution;

Commitment No.2

That the Interim Government, when adopting major legislative, fiscal and other policy initiatives and changes, shall take into account consultations with civil society and all other relevant stakeholders.

B. Rule of Law

Commitment No.1

That the Interim Government shall use best endeavours to prevent statements by security agencies destined to intimidate.

Commitment No. 2

That the Interim Government upholds the 1997 Constitution, and guarantees the normal and independent functioning of Constitutional institutions such as the Fiji Human Rights Commission, Public Service Commission, Constitutional Offices Commission. The substantial independence and functioning of the Great Council of Chiefs will be preserved.

Commitment No. 3

That the independence of the judiciary is fully respected, that it is allowed to work freely and that its rulings are respected by all concerned parties, in particular:

- That the Interim Government undertakes that the tribunal pursuant to Section 138 (3) of the Constitution be appointed by 15 July 2007;

- That any appointment and/or dismissal of judges is henceforth carried out in strict conformity with Constitutional provisions and procedural rules;

- That no instances whatsoever occur, of whatever form, of interference by the military and the police or by the Interim Government with the judicial process, including full respect for the legal profession;

Commitment No. 4

That all criminal proceedings linked to corruption are dealt with through the appropriate judicial channels and that any other bodies that may be set up to investigate alleged cases of corruption will operate within constitutional boundaries.

C. Human Rights and Fundamental Freedoms

Commitment No. 1

The Interim Government will take all necessary steps to facilitate that all allegations of human rights infringements are investigated or dealt with in accordance with the various procedures and forums under the laws of the Fiji Islands.

Commitment No. 2

The Interim Government intends to lift the Public Emergency Regulations in May 2007 subject to any threats to national security, public order and safety.

Commitment No. 3

The Interim Government is committed to ensuring that the Fiji Human Rights Commission functions with full independence and in accordance with the Constitution.

Commitment No. 4

That the freedom of expression and the freedom of the media, in all its forms are fully respected as provided in the Constitution.

D. Follow-up of Commitments

Commitment No. 1

That the Interim Government undertakes to maintain a regular dialogue to allow verification of progress made and gives EU and EC authorities/representatives full access to information on all matters linked to human rights, the peaceful restoration of democracy and the rule of law in Fiji.

Commitment No. 2

That the Interim Government cooperates fully with eventual missions from the EU and the EC for assessing and monitoring progress.

Commitment No. 3

That the Interim Government sends progress reports every three (3) months starting 30 June 2007 regarding the essential elements of the Cotonou Agreement and the commitments.

It is noted that certain issues can only be effectively addressed through a pragmatic approach which acknowledges the realities of the present and which focuses on the future.

[1] OJ L 317, 15.12.2000, p. 3.

[2] OJ L 287, 28.10.2005, p. 4.

[3] OJ L 317, 15.12.2000, p. 376.

[4] OJ L 378, 27.12.2006, p. 41