Proposal for a Council Decision on the Agreement in the form of an Exchange of Letters between the European Union and the Republic of Chile on the provisional application of the Understanding concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean
Date: 2010-04-19
Institutions: European Commission
Subjects: Chile, European Union, Pacific Ocean, conservation of fish stocks, deep-sea fishing, fishery resources, international agreement, ratification of an agreement

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EUROPEAN COMMISSION 

Brussels, 19.4.2010 
COM(2010)153 final 

2010/0083 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the Agreement in the form of an Exchange of Letters between the European Union 
and the Republic of Chile on the provisional application of the Understanding 
concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean 

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EXPLANATORY MEMORANDUM 

Following  a  complaint  brought  by  ANAPA  (Spanish  National  Association  of  Owners  of 
Deep-sea  Longliners),  the  European  Commission  initiated  an  investigation  under  Council 
Regulation No. 3286/94 (Trade Barriers Regulation) (notice of initiation published on 10 July 
1998).  On  23  March  1999,  the  European  Commission  issued  its  investigation  report, 
according  to  which  Chilean  practices  denying  access  to  Chilean  ports  to  vessels  fishing 
swordfish on the  high seas in the South-Eastern  Pacific were inconsistent with Article V of 
the General Agreement on Tariffs and Trade of 1994 (GATT). 

Following  Commission  Decision  2000/296/EC  of  5  April  2000  concerning  the  Chilean 
prohibition  on  unloading  of  swordfish  catches  of  Community  vessels  in  Chilean  ports,  the 
European Commission initiated a WTO dispute settlement procedure against Chile. 

In reaction to this WTO case, Chile asked that certain questions be submitted to compulsory 
dispute  settlement  under  the  UN  Law  of  the  Sea  Convention.  Subsequently,  Chile  and  the 
Community  submitted  on  19  December  2000  a  dispute  regarding  the  Conservation  and 
Sustainable Exploitation of Swordfish Stocks in the South-Eastern Pacific Ocean to a Special 
Chamber of the International Tribunal of the Law of the Sea (ITLOS). 

On 25 January 2001, the European Commission and Chile reached a provisional arrangement 
as a consequence of which Parties agreed to the parallel suspension of the WTO and ITLOS 
procedures.  

In  April  2008  the  Council  adopted  a  decision  authorising  the  Commission  to  conduct 
negotiations with Chile on behalf of the European Union to reach a definitive agreement on a 
new fisheries cooperation framework.  

On  30  October  2008  the  Commission  presented  to  the  Council's  Working  Party  on  Internal 
and External Fisheries the text of the Understanding agreed between negotiators concerning 
the  conservation  of  swordfish  stocks  in  the  South-Eastern  Pacific  Ocean.  The  new 
Understanding will ensure access to designated Chilean ports for transhipments and landings 
operations, as well as for logistical purposes, for fishing vessels flying the flags of Member 
States  operating  in  the  South-Eastern  Pacific  waters.  The  new  Understanding  does  not  call 
into  question  the  respective  competences  of  existing  regional  fisheries  management 
organisations  currently  established  (Inter-American  Tropical  Tunas  Commission  –  IATTC) 
nor  of  those  that  are  in  the  course  of  being  established  (South  Pacific  Regional  Fisheries 
Management Organisation – SPRFMO).  

On 3 December 2009 the Commission presented to the Council's Working Party on Internal 
and External Fisheries the outcome of the bilateral technical talks with Chile that took place 
on  5-6  October  2009  in  New  York.  The  Parties  initialled  a  technical  Annex  I  to  the 
Understanding that contains detailed procedures to be followed by the EU vessels fishing for 
swordfish seeking access the designated Chilean ports. These procedures are in keeping with 
modern FAO Port State measures.  

In  the  meantime,  both  Parties  have  already  jointly  withdrawn  the  ITLOS  case.  On  16 
December 2009 the ITLOS Special Chamber placed on record the discontinuance of the case 
in accordance with the joint request of Chile and the EU. 

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Preparations  are  also  underway  for  a  joint  withdrawal  of  the  WTO  Case  (WT/DS/193  - 
Measures  Affecting  the  Transit  and  Importation  of  Swordfish).  However,  the  Commission 
will  not,  at  this  stage  propose  a  closure  of  the  Trade  Barriers  Regulation  case.  The 
Commission intends to make proposal for the withdrawal only after the formal conclusion of 
the Agreement by the respective EU and Chilean authorities and provided that the provisions 
on access to Chilean ports of EU vessels fishing for swordfish on the high seas in the South-
Eastern Pacific have been implemented in a satisfactory manner during a reasonable period of 
time. 

The  Member  States  and  the  European  Parliament  should  be  invited  by  the  Commission  to 
start the relevant procedure for conclusion. In the meantime, in order to ensure that access for 
EU vessels fishing for swordfish to the designated Chilean ports is not delayed any further, it 
is necessary to provisionally apply the Understanding, for which a simultaneous but separate 
Council decision is herewith proposed. 

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2010/0083 (NLE) 

Proposal for a 

COUNCIL DECISION 

on the Agreement in the form of an Exchange of Letters between the European Union 
and the Republic of Chile on the provisional application of the Understanding 
concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 43, in conjunction with Article 218 (5), thereof, 

Having regard to the proposal from the European Commission1, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

It  is  the  objective  of  the  European  Union  to  establish  framework  cooperation 
agreements  on  fisheries  with  third  Parties  to  ensure  the  conservation  and  sustainable 
management  of  species  of  common  interest  and  the  access  of  EU  vessels  to  third 
Parties' ports for operations of transhipment and landings, and for logistical purposes. 

On 4 April 2008 the Council authorised the Commission to open negotiations with the 
Republic of Chile for the conservation of swordfish stocks in the South-Eastern Pacific 
Ocean.  The  negotiations  were  successfully  concluded  by  the  initialling  of  the 
Understanding  concerning  the  conservation  and  management  of  swordfish  stocks  in 
the South-Eastern Pacific Ocean and its detailed Annex I. 

The  Commission  has  proposed  to  the  Council  to  adopt  a  decision  concluding  the 
agreement in the form of an exchange of letters (Proposal for a Council Decision on 
the conclusion of the Understanding between the European Union and the Republic of 
Chile  concerning  the  conservation  of  swordfish  stocks  in  the  South-Eastern  Pacific 
Ocean of XXXX). 

In  view  of  the  interest  of  EU  vessels  fishing  for  swordfish  on  the  high  seas  in  the 
South-Eastern Pacific to obtain access to designated Chilean ports without delay, the 
Understanding  should  be  applied  provisionally  pending  the  conclusion  of  the 
Agreement. 

1 

OJ C […], […], p. […]. 

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HAS ADOPTED THIS DECISION:  

Article 1 

The  Agreement  in  the  form  of  an  Exchange  of  Letters  on  the  provisional  application  of  the 
Understanding  between  the  European  Union  and  the  Republic  of  Chile  concerning  the 
conservation  of  swordfish  stocks  in  the  South-Eastern  Pacific  Ocean  is  hereby  approved  on 
behalf of the European Union, pending the entry into force of the Understanding. 

The  text  of  this  Agreement  on  the  provisional  application  in  the  form  of  an  Exchange  of 
Letters between the European Union and Chile is attached to this Decision. 

Article 2 

The European Commission is authorised to sign, on behalf of the European Union, the Letter 
from the European Union referred to in Article 1 and to designate the persons empowered to 
proceed to the signature 

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

Article 3 

Article 4 

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

Done at Brussels, […] 

For the Council 
The President 
[…] 

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ANNEX  

AGREEMENT IN THE FORM OF AN EXCHANGE OF LETTERS 

between the European Union and the Republic of Chile on the provisional application of 
the Understanding concerning the conservation of swordfish stocks in the South-Eastern 
Pacific Ocean 

A. Letter from the European Union 

Sir/Madame, 

I have the honour to refer to the negotiations that have taken place in Brussels on 15 and 16 
October  2008  between  the  European  Union  and  Chile  which  led  to  the  Understanding 
concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean (hereafter 
'the Understanding'), as well as to the bilateral technical discussions in New York on 5 and 6 
October 2009. 
The  European  Union  has  started  its  internal  procedures  for  the  conclusion  of  the 
Understanding concerning the conservation of swordfish stocks in the South-Eastern Pacific 
Ocean reached on 15-16 October 2008 including the detailed Annex I agreed on 5-6 October 
2009. 
Pending the completion of these procedures, the European Union shall provisionally apply the 
Understanding concerning the conservation of swordfish stocks in the South-Eastern Pacific 
Ocean  reached  on  15-16  October  2008  and  its  Annex  I  agreed  on  5-6  October  2009  as 
complemented by the Note Verbale of Chile of 23 November 2009. 
The following documents and information form an integral part of this Agreement in the form 
of an Exchange of Letters: 
a) 

the Understanding agreed on 15-16 October 2008 in Brussels as modified by: 

b) 

c) 

the detailed Annex I to the Understanding as agreed during the bilateral 
technical meeting on 5-6 October 2009 in New York; 

the Note Verbale of Chile of 23 November 2009 designating the Chilean 
ports  of  Arica,  Antofagasta  and  Punta  Arenas  for  access  by  EU  vessels 
fishing for swordfish on the high seas in the South Eastern Pacific Ocean, 
in relation to point (xi) of the Annex mentioned in (b) above. 

d) 

the first meeting of the Bilateral Technical and Scientific Committee will 
take place at the latest on 1 June 2010. 

I should be obliged if you would acknowledge receipt of this letter and confirm that this letter 
and  your  reply  constitute  an  Agreement  between  Chile  and  the  European  Union  to 
provisionally  apply  the  Understanding  in  accordance  with  the  provisions  contained  in  the 
documents listed above. 

This agreement will apply from the day following the day of your reply. 

Please accept, Sir/Madam, the assurance of my highest consideration. 

For the European Union 

The President 

[…] 

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B. Letter from the Republic of Chile 

Sir/Madam, 

I  have  the  honour  to  acknowledge  receipt  of  your  letter  of  today's  date,  which  reads  as 
follows:  

'I have the honour to refer to the negotiations that have taken place in Brussels on 15 and 16 
October  2008  between  the  European  Union  and  Chile  which  led  to  the  Understanding 
concerning the conservation of swordfish stocks in the South-Eastern Pacific Ocean (hereafter 
'the Understanding'), as well as to the bilateral technical discussions in New York on 5 and 6 
October 2009. 
The  European  Union  has  started  its  internal  procedures  for  the  conclusion  of  the 
Understanding concerning the conservation of swordfish stocks in the South-Eastern Pacific 
Ocean reached on 15-16 October 2008 including the detailed Annex I agreed on 5-6 October 
2009. 
Pending the completion of these procedures, the European Union shall provisionally apply the 
Understanding concerning the conservation of swordfish stocks in the South-Eastern Pacific 
Ocean  reached  on  15-16  October  2008  and  its  Annex  I  agreed  on  5-6  October  2009  as 
complemented by the Note Verbale of Chile of 23 November 2009. 
The following documents and information form an integral part of this Agreement in the form 
of an Exchange of Letters: 
a) 

the Understanding agreed on 15-16 October 2008 in Brussels as modified by: 

b) 

c) 

the detailed Annex I to the Understanding as agreed during the bilateral 
technical meeting on 5-6 October 2009 in New York; 

the Note Verbale of Chile of 23 November 2009 designating the Chilean 
ports  of  Arica,  Antofagasta  and  Punta  Arenas  for  access  by  EU  vessels 
fishing for swordfish on the high seas in the South Eastern Pacific Ocean, 
in relation to point (xi) of the Annex mentioned in (b) above. 

d) 

the first meeting of the Bilateral Technical and Scientific Committee will 
take place at the latest on 1 June 2010. 

I should be obliged if you would acknowledge receipt of this letter and confirm that this letter 
and  your  reply  constitute  an  Agreement  between  Chile  and  the  European  Union  to 
provisionally  apply  the  Understanding  in  accordance  with  the  provisions  contained  in  the 
documents listed above. 

This agreement will apply from the day following the day of your reply'. 

I have the honour to confirm that your letter and this reply constitute an Agreement between 
Chile and the European Union. 

Please accept, Sir/Madam, the assurance of my highest consideration. 

For the Republic of Chile 

The President 

[…] 

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