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: 2011-02-16
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, 16.2.2011 
COM(2011) 63 final 

2011/0036 (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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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  and  then  again  on  27 
September 2010 in its Decision 2010/589/EU until 31 March 2011.  

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

While the 2010 allocation under accompanying measures for former Sugar Protocol 
Countries, conditional on 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  EU  Delegation  in  Suva  to  the  population  directly  dependent 
on sugar production in order to mitigate the adverse social consequences. 

For  the  period  2011-2013  Fiji's  indicative  allocation  was  established  at  €51.094 
million under Commission Decision C(2010)8130. The availability of this allocation 
(wholly  or  in  part)  is,  however,  conditional  on  progress  in  the  consultation  process 
under  Article  96  ACP-EC  Partnership  Agreement  (Art.  37  DCI),  in  the  absence  of 
such progress only social mitigation interventions will be considered. 

Taking into account the above considerations, the EU should at this stage, consider 
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 October 2011.  

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

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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 continue to guide the EU following the decisions concerning 
Fiji on accompanying measures for former Sugar Protocol countries and on its 10th 
EDF  National  Indicative  Programme  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.  

11. 

The  modifications  to  the  appropriate  measures  should  thus  be  limited  to  what  is 
strictly  required  to  take  account  of  relevant  developments,  while  the  substance  of 
measures – even where outdated – remains untouched. 

Conclusion 

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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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2011/0036 (NLE) 

Proposal for a 

COUNCIL DECISION 

Amending and extending the period of application of Decision 2007/641/EC 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 

THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 217 thereof,  

Having regard to the 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 (the ACP-EC Partnership Agreement), and in particular Article 96 thereof, 

Having regard to the Internal Agreement between the 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 
cooperation (the Development Cooperation Instrument)4, 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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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, 5.10.2007, p. 15 

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(2) 

Those  measures  have  been  extended  by  Decision  2009/735/EC6  of  24 September 
2009,  and  subsequently  by  Decisions  2010/208/EU7  of  29  March  2010  and 
2010/589/EU8  since,  not  only  are  important  commitments  agreed  by  Fiji  in 
consultations  held  in  April  2007  concerning  essential  elements  of  the  ACP-EC 
Partnership  Agreement  and  the  Development  Cooperation  Instrument  yet  to  be 
implemented  by  Fiji,  but  there  have  also  been  important  regressive  developments 
concerning a number of these commitments, 

(3) 

The  period  of  application  of  the  measures  in  Decision  2007/641/EC  expires  on 
31 March 2011. It is appropriate to prolong its validity, and to update  the content of 
the appropriate measures accordingly. 

HAS DECIDED AS FOLLOWS: 

Article 1 

Decision 2007/641/EC is hereby amended as follows: 

(1) 

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

‘It  shall  expire  on  31  October  2011.  It  shall  be  reviewed  regularly  at  least  once  every  six 
months.";  

(2) 

The Annex is replaced by the Annex to this Decision. 

The letter in the Annex to this Decision shall be addressed to the Republic of the Fiji Islands 

Article 2 

Article 3  

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

Done at Brussels, 

For the Council 
The President 

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OJ L 262, 6.10.2009, p. 43 
OJ L 89, 9.4.2010, p. 7 
OJ L 260, 2.10.2010, p.10-15 

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ANNEX 

Draft letter 

H.E. Ratu Epeli NAILATIKAU 

President of the Republic of the Fiji Islands 

Suva 

Republic of the Fiji Islands 

Excellency, 

The  European  Union  (EU)  attaches  great  importance  to  the  provisions  of  Article  9  of  the 
ACP-EC  Partnership  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 ACP-EC Partnership Agreement, and 
form the basis of our relations. 

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

Under  Article  96  of  the  ACP-EC  Partnership  Agreement,  and  considering  that  the  military 
takeover on 5 December 2006 constituted a violation of the essential elements listed in Article 
9 thereof, the EU invited the Republic of the Fiji Islands (Fiji) to consultations, as provided 
for in the ACP-EC Partnership 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 attached 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  ACP-EC  Partnership 
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  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 

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guided  by  the  essential  elements  of  the  ACP-EC  Partnership  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 in the upcoming  decisions on accompanying measures for Sugar Protocol countries and 
Fiji's National Indicative Programme under the 10th European Development Funds.  

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; 

–  the  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 the 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 Fiji, and that the Interim Government shall use 
best  endeavours  to  prevent  statements  designed  to  intimidate  being  issued  by  security 
agencies; 

–  the 2007 sugar allocation is 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 
Constitution,  and  measures  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.  This  2008  sugar  allocation  was  lost  on  31  December 
2009; 

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–  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  part  of  the  allocation  was  set  aside  for  direct  assistance  to  the  population  directly 
dependent  on  sugar  production  in  order  to  mitigate  adverse  social  consequences.  These 
funds  are  centrally  managed  by  the  EU's  Delegation  in  Suva  and  not  channelled  through 
the Government; 

–  The  availability  of  the  indicative  allocation  under  the  multi-annual  programme  for  sugar 
reform  accompanying  measures  2011-2013  will  be  conditional  to  an  agreement  in  the 
consultation  process;  in  the  absence  of  such  an  agreement  only  social  mitigation 
interventions will be considered for funding through this allocation. 

–  specific support for the preparation and implementation of key commitments, in particular 

in support of the preparation and/or holding of elections, could be considered; 

–  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  terms  in  the  Annex  to  this 
letter concerning regular dialogue, and effective cooperation with assessment and monitoring 
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  principles  set  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 EU 

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Annex to the Annex 

COMMITMENTS AGREED 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  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 European Commission 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 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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