Proposal for a Council Decision extending the period of application of the measures in Decision 2007/641/EC concluding consultations with the Republic of Fiji Islands under Article 96 of the ACP-EC Partnership Agreement and Article 37 of the Development Cooperation Instrument
Date: 2009-08-24
Institutions: European Commission
Subjects: ACP countries, ACP-EU Convention, Fiji, cooperation agreement, cooperation policy, development aid, development policy, financial instrument, human rights, rule of law

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.8.2009 
COM(2009) 431 final 

Proposal for a 

COUNCIL DECISION 

extending the period of application of the measures in Decision 2007/641/EC concluding 
consultations with the Republic of Fiji Islands under Article 96 of the ACP-EC 
Partnership Agreement and Article 37 of the Development Cooperation Instrument 

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1. 

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3. 

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7. 

8. 

EXPLANATORY MEMORANDUM 

The military take-over in December 2006 led to consultations under Article 96 of the 
revised  Cotonou  Agreement.  These  resulted  in  April  2007  in  agreed  commitments 
concerning  human  rights,  democratic  principles  and  the  rule  of  law.  On  1  October 
2007  the  Council  decided  on  appropriate  measures  for  Fiji  to  establish  a  degree  of 
parallelism  between  Fiji’s  respect  for  the  agreed  commitments  and  development 
cooperation.  The  agreed  commitments,  the  appropriate  measures  and  the  enhanced 
political  dialogue  with  Fiji  have  in  the  past  been  instrumental  in  protecting  and 
assisting the situation in Fiji, especially regarding the rule of law and human rights. 

On  10  April,  however,  Fiji’s  President  abrogated  the  Constitution,  removed  all 
judges and declared that elections would take place at the latest in September 2014. 
Hereby,  Fiji  unilaterally  broke  key  commitments  it  had  given  to  the  EU  in  April 
2007. This happened  the  day after the Appeals Court had ruled the appointment of 
the  military-led  government  following  the  coup  in  2006  illegal.  Fiji  is  also  under  a 
state of emergency and freedom of expression has been substantially curtailed. 

Following the negative developments over Easter 2009, the EU Presidency issued a 
statement on 22 April 2009 on behalf of the EU noting the recent developments with 
great regret. This was followed by a statement by Commissioner Louis Michel on 15 
May 2009 announcing that the 2009 sugar allocation for Fiji had been cancelled. 

The review of the current Decision, which expires on 1 October 2009, coincides with 
an ongoing joint initiative by the United Nations and the Commonwealth to mediate, 
to which the EU has given its full support, but which is stalled at present. 

The  interim  Prime  Minister  has  recently  presented  a  roadmap  for  reforms  and 
elections.  While  the  roadmap  is  insufficient  as  it  stands  it  may  be  worthwhile  to 
engage in dialogue regarding it and to consider whether it may serve as a basis for 
new consultations. 

Taking  into  account  the  above  considerations,  the  Commission  can  only,  at  this 
stage, propose an extension of the current policy. 

Therefore,  the  Commission  is  proposing  to  the  Council  to  extend  the  current 
Decision for a further 6 months ending on 31 March 2010. 

Another measure proposed is to inform Fiji, in the annexed letter to President Iloilo, 
that the EU remains committed to pursuing the enhanced political dialogue and that 
new  consultations  under  Article  96  of  the  ACP-EC  Partnership  Agreement  and 
Article 37 of the Development Cooperation Instrument are a distinct possibility. 

9. 

The Decision should be kept under constant review. 

Conclusion 

10. 

In  the  light  of  the  foregoing,  the  Council  is  requested  to  adopt  the  attached  draft 
proposal  for  a  Council  Decision  extending  the  period  of  application  of  the 
appropriate measures for the Republic of Fiji Islands. 

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Proposal for a 

COUNCIL DECISION 

extending the period of application of the measures in Decision 2007/641/EC concluding 
consultations with the Republic of 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 between the members of  the African, 
Caribbean and Pacific Group of States, of the one part, and the European Community and its 
Member  States,  of  the  other  part,  signed  in  Cotonou  on  23  June  20001  and  revised  in 
Luxemburg  on  25  June  20052,  hereinafter  referred  to  as  ‘the  ACP-EC  Partnership 
Agreement’, and in particular Article 96 thereof, 

Having regard to the Internal Agreement between representatives of the governments of the 
Member  States,  meeting  within  the  Council,  on  measures  to  be  taken  and  procedures  to  be 
followed  for  the  implementation  of  the  ACP-EC  Partnership  Agreement3,  and  in  particular 
Article 3 thereof, 

Having  regard  to  Regulation  (EC)  No  1905/2006  of  the  European  Parliament  and  of  the 
Council  of  18  December  2006  establishing  a  financing  instrument  for  development 
cooperation4, and in particular Article 37 thereof, 

Having regard to the proposal from the Commission, 

Whereas: 

(1) 

(2) 

(3) 

The essential elements referred to in Article 9 of the ACP-EC Partnership Agreement 
have been violated. 

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

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

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4 

OJ L 317, 15.12.2000, p.3. 
OJ L 287, 28.10.2005, p.4. 
OJ L 317, 15.12.2000, p. 376. 
OJ L 378, 27.12.2006, p. 41-71. 

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(4) 

(5) 

Some  substantive  initiatives  had  been  taken  in  respect  of  some  of  the  commitments 
referred  to  above;  nevertheless,  not  only  have  important  commitments  concerning 
essential  elements  of  the  ACP-EC  Partnership  Agreement  and  the  Development 
Cooperation  Instrument  yet  to  be  implemented,  but  there  have  also  recently  been 
important regressive developments concerning a number of key commitments5, 

Council Decision 2007/641/EC of 1 October 2007 on the conclusion of consultations 
with  the  Republic  of  Fiji  Islands  under  Article  96  of  the  ACP-EC  Partnership 
Agreement  and  Article  37  of  the  Development  Cooperation  Instrument  expires  on 
1 October 2009; it is appropriate to prolong its validity. 

HAS DECIDED AS FOLLOWS: 

Council Decision 2007/641/EC is modified as follows: 

Article 1 

(1) 

In Article 3, the text of the second paragraph is replaced by the following text: 

‘It  shall  expire  on  31  March  2010.  It  shall  be  reviewed  regularly  at  least  once  every  six 
months, and without delay if new developments in the Republic of Fiji Islands or new formal 
consultations  with  the  ACP  countries  and  the  Republic  of  Fiji  Islands  lead  to  specific 
commitments providing reasons to do so’ 

(2) 

The annex is replaced by the annex to the present Decision. 

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

Article 2 

Article 3 

The Decision shall be published in the Official Journal of the European Union. 

Done at Brussels, […] 

For the Council 
The President 
[…] 

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Notably abrogation of the Constitution and a further substantial delay in the elections. 

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ANNEX  

Draft letter 

H.E. Ratu Josefa ILOILO 

President of the Republic of Fiji Islands 

Suva 

Republic of Fiji Islands 

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

The  formal  part  of  those  consultations  began  in  Brussels  on  18  April  2007.  The  EU  was 
pleased  that  at  the  time  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. 

Regrettably, there have since been a series of regressive developments, in particular in April 
2009, meaning that Fiji is now in breach of a range of its commitments. This concerns notably 
the  abrogation  of  the  Constitution,  the  very  substantial  delay  in  holding  the  parliamentary 
elections,  and  human  rights  violations.  Although  implementation  of  the  commitments  has 
been substantially delayed, the majority remain highly relevant to Fiji’s present situation, and 
are therefore annexed to this letter. As Fiji has unilaterally decided to break a number of key 
commitments, this has led to losses for Fiji in terms of development funds. 

However, in the spirit of partnership forming the cornerstone of the Cotonou Agreement, the 
EU  expresses  its  readiness  to  engage  in  new  formal  consultations  as  soon  as  there  is  a 
reasonable  prospect  for  a  positive  conclusion  to  such  consultations.  The  Interim  Prime 
Minister has recently presented a roadmap for reforms and elections. The EU stands ready to 
engage in dialogue regarding this roadmap, and is prepared to consider whether it may serve 
as  a  basis  for  new  consultations.  Accordingly,  the  EU  has  decided  to  extend  the  existing 

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appropriate  measures  for  Fiji  in  order  to  create  a  window  of  opportunity  for  new 
consultations.  While  some  of  the  appropriate  measures  are  now  out-of-date,  it  has  been 
concluded  that  rather  than  update  them  unilaterally  the  EU  prefers  to  further  explore 
possibilities for new consultations with Fiji. Consequently, it is of particular importance that 
the Interim Government commits to an inclusive domestic political dialogue and to flexibility 
concerning  the  time-frame  for  the  coming  roadmap.  While  the  EU’s  position  is  and  always 
will  be  guided  by  the  essential  elements  of  the  revised  Cotonou  Agreement  as  well  as  its 
fundamental  principles,  notably  regarding  the  pivotal  role  of  dialogue  and  the  fulfilment  of 
mutual  obligations,  it  is  stressed  that  there  are  no  foregone  conclusions  on  the  EU’s  side 
regarding the outcome of future consultations. 

If new consultations result in substantial commitments from Fiji, the EU is committed to an 
early, positive review of these appropriate measures. Conversely, if the situation in Fiji does 
not improve, then further losses of development funds for Fiji are set to continue. 

Until  new  consultations  have  taken  place  the  EU  invites  Fiji  to  continue  and  intensify  the 
enhanced political dialogue. 

The appropriate measures are as follows: 

–  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 by the Pacific 
Islands Forum's independent election experts is in line with Commitment No 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  and  that  the  Public  Emergency 
Regulations,  reintroduced  on  6  September  2007,  are  lifted  as  soon  as  possible,  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, 

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–  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  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  until 
both parties conclude that the enhanced nature of dialogue has served its purpose. 

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 
the  agreed  commitments. 
and  substantial  progress 

the  fulfilment  of 

is  made 

in 

Yours sincerely, 

Done at Brussels, 

For the Commission 

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For the Council 

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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  with  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, 

–  the schedule specifies the timing of census, redrafting of boundaries and electoral reform, 

–  determination  of  boundaries  and  electoral  reform  shall  be  carried  out  in  accordance  with 

the Constitution, 

–  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, 

–  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  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 

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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 

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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 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. 

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