Proposal for a COUNCIL DECISION Amending and extending the period of application of 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: 2010-09-01
Institutions: European Commission
Subjects: EU financial instrument, Fiji, aid to agriculture, cooperation agreement (EU), coup d'état, democracy, development aid, human rights, rule of law

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EUROPEAN COMMISSION 

Brussels, 1.9.2010 
COM(2010) 454 final 

2010/0237 (NLE) 

Proposal for a 

COUNCIL DECISION 

Amending and extending the period of application of 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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9. 

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, in its Decision 2007/641/EC decided on appropriate measures for 
Fiji  to  establish  a  degree  of  parallelism  between  Fiji’s  respect  for  the  agreed 
commitments and development cooperation.  

On  10  April  2009,  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 these negative developments, the Council decided, on 24 September 2009, 
in  its  Decision  2009/735/EC,  to  extend  until  31  March  2010,  the  validity  of  the 
appropriate measures for Fiji established in Decision 2007/641/EC, which was due to 
expire on 1 October 2009.  

Due  to  further  delays  in  implementing  the  commitments  agreed  with  the  EU  the 
Council  decided,  on  29  March  2010  in  its  Decision  2010/208/EU,  to  extend  until 
1 October  2010,  the  validity  of  the  appropriate  measures  for  Fiji  established  in 
Decision 2007/641/EC.  

No  further  positive  development  as  regards  the  fulfilment  of  agreed  commitments 
can be noted.  

While  the  2010  sugar  allocation,  conditional  to  progress  in  the  continuation  of  the 
democratic process, was cancelled in May 2010, part of the allocation was set aside 
to provide direct assistance through the Delegation in Suva to the population directly 
dependent on sugar production in order to mitigate the adverse social consequences. 
The provision of any such support will have to be confirmed by the EU's legislative 
and budgetary authorities.  

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

Therefore,  the  Commission  is  proposing  to  the  Council  to  extend  the  current 
Decision for a further 6 months ending on 31 March 2011.  

However the Decision should continue to be reviewed in a way that allows the EU to 
keep a regular dialogue and permanent political engagement with Fiji, and therefore 
the Decision should be kept under constant review.  

10. 

It is proposed to notify this Decision to the interim Government of Fiji, on the basis 
of the annexed draft letter to President Nailatikau, and to inform him (a) that the EU 
remains committed to pursuing the enhanced political dialogue under Article 8 of the 
Cotonou  Agreement,  (b)  that  the  assessment  of  progress  made  towards  return  to 
constitutional  rule  will  guide  the  EU  following  the  upcoming  decisions  on 

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Accompanying  Measures  for  Sugar  Protocol  Countries  and  10th  EDF  National 
Indicative  Programme  with  respect  to  Fiji  and  finally,  (c)  that  new  consultations 
under  Article  96  of  the  ACP-EC  Partnership  Agreement  and  Article  37  of  the 
Development Cooperation Instrument are a distinct possibility at the disposal of Fiji.  

Conclusion 

11. 

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

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2010/0237 (NLE) 

Proposal for a 

COUNCIL DECISION 

of […] 

Amending and extending the period of application of 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 on the Functioning of the European Union,  

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  20001and  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 European Commission, 

Whereas: 

(1) 

Decision 2007/641/EC5 concluding 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 was adopted to implement appropriate measures 
following the violation of the essential elements referred to in Article 9 of the ACP-EC 
Partnership  Agreement,  and  the  values  referred  to  in  Article  3  of  the  Development 
Cooperation Instrument. 

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5 

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. 
OJ L 260, 05.10.2007, p. 15 

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(2) 

These  measures  have  been  extended  by  Council  Decision  2009/735/EC6  of 
24 September 2009, and subsequently by Council Decision 2010/208/EU7 of 29 March 
2010 given that not only important commitments concerning essential elements of the 
ACP-EC Partnership Agreement and the Development Cooperation Instrument are yet 
to  be  implemented  by  Fiji,  but  there  have  been  also  recently  important  regressive 
developments concerning a number of these commitments, 

(3) 

The  period  of  application  of  the  measures  in  Decision  2007/641/EC  expires  on 
1 October 2010, and it is appropriate to prolong its validity, while the content of the 
appropriate measures should be technically updated accordingly. 

HAS ADOPTED THIS DECISION: 

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

Article 1 

(1) 

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

"It shall expire on 31 March 2011."  

(2) 

The annex is replaced by the annex to the present Decision, which shall be addressed 
to the Republic of the Fiji Islands. 

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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7 

OJ L 262, 06.10.2009, p. 43 
OJ L 89, 09.04.2010, p. 7 

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Draft letter 

ANNEX 

H.E. Ratu Epeli NAILATIKAU 

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 of those commitments 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.  On  1  July  2009  the 
Interim Prime Minister presented a roadmap for reforms and for a return to democratic order. 
The EU stands ready to engage in dialogue regarding this roadmap, and to consider whether it 
may  serve  as  a  basis  for  new  consultations.  Accordingly,  the  EU  has  decided  to  extend  the 
existing  appropriate  measures  for  Fiji  in  order  to  create  a  window  of  opportunity  for  new 

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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  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.  In 
particular, the assessment of progress made towards return to constitutional rule will guide the 
EU  following  the  upcoming  decisions  on  Accompanying  Measures  for  Sugar  Protocol 
Countries and 10th EDF National Indicative Programme with respect to Fiji.  

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 and direct support to civil society may continue; 

–  cooperation activities under way, in particular under the 8th and 9th EDFs, may continue; 

–  cooperation  activities  that  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 technical level by Fiji on 19 June 2007. It is noted that 
the financing agreement includes a suspension clause; 

–  the  preparation  and  eventual  signing  of  the  multi-annual  indicative  programme  for  sugar 

reform accompanying measures for 2011-2013 can proceed; 

–  the  finalisation,  signing  at  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  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 
will  use  its  best  endeavours  to  prevent  statements  by  security  agencies  designed  to 
intimidate; 

–  the 2007 sugar allocation was zero; 

–  availability  of  the  2008  sugar  allocation  was  subject  to  evidence  of  credible  and  timely 
preparation of elections in accordance with the agreed commitments, notably regarding a 
census,  the  redrafting  of  boundaries  and  electoral  reform  in  accordance  with  the 

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Constitution,  and  measures  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.  This  2008  sugar  allocation  was  lost  on  31  December 
2009; 

–  the  2009  sugar  allocation  was  cancelled  in  May  2009  because  the  interim  Government 

decided to delay general elections until September 2014; 

–  the  2010  allocation  was  cancelled  before  1  May  2010  as  no  progress  was  made  in  the 
continuation  of  the  democratic  process;  however,  given  the  critical  situation  of  the  sugar 
sector  the  Commission  set  aside  part  of  the  allocation  for  direct  assistance,  centrally 
managed by the EU's Delegation in Suva and not channelled through  the  government, to 
the population directly dependent on sugar production in order to mitigate adverse social 
consequences.  The  provision  of  any  such  support  will  have  to  be  confirmed  by  the  EU's 
legislative and budgetary authorities; 

–  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. 

Monitoring  of  the  commitments  will  be  in  accordance  with  the  commitments  listed  in  the 
Annex to this letter concerning regular dialogue, cooperation with missions and reporting. 

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 
respect for human rights, restoration of democracy and respect for the rule of law until both 
parties conclude that the enhanced nature of the 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 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 

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Annex to the Annex 

COMMITMENTS AGREED WITH THE REPUBLIC OF THE FIJI ISLANDS 

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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  an  assessment  to  be  carried  out  by  the  independent  auditors 
appointed  by  the  Pacific  Islands  Forum  Secretariat.  The  processes  leading  to  the  holding  of 
the  elections  will  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  a  census,  the  redrafting  of  boundaries  and  electoral 

reform, 

–  the determination of boundaries and electoral reform will 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 will be in accordance with the Constitution. 

Commitment No 2 

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

B. 

Rule of Law 

Commitment No 1 

That  the  Interim  Government  will  use  its  best  endeavours  to  prevent  statements  by  security 
agencies designed 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,  the  Public  Service  Commission,  and  the  Constitutional  Offices  Commission. 
The  substantial  independence  and  functioning  of  the  Great  Council  of  Chiefs  will  be 
preserved. 

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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 to appoint the tribunal pursuant to Section 138(3) 

of the Constitution 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  there  will  be  no  instances  whatsoever  of  interference,  of  whatever  form,  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  in  connection  with  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 will 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  freedom  of  expression  and  freedom  of  the  media,  in  all  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  the  progress  made  and  gives  EU  and  EC  authorities/representatives  full  access  to 
information on all matters relating to human rights, the peaceful restoration of democracy and 
the rule of law in Fiji. 

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Commitment No 2 

That the Interim Government cooperates fully with any missions from the EU and the EC to 
assess and monitor 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 
that acknowledges the realities of the present and which focuses on the future. 

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