Proposal for a COUNCIL DECISION Amending 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, and extending the period of application thereof
Date: 2012-08-22
Institutions: European Commission
Subjects: ACP-EU Convention, Fiji, cooperation agreement (EU), democratisation, development aid, human rights, rebel government, rule of law

EUROPEAN COMMISSION 

Brussels, 22.8.2012  
COM(2012) 460 final 

2012/0225 (NLE) 

Proposal for a 

COUNCIL DECISION 

Amending 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, and extending the period of application thereof 

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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 was also placed under a state 
of emergency and freedom of expression 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,  on  31  March 
2011  in  its  Decision  2011/219/EU  until  30  September  2011  and  on  26  September 
2011 in its Decision 2011/637/EU until 30 September 2012.  

While most of Fiji's 2010 allocation under accompanying measures for former Sugar 
Protocol  Countries,  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  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. As a result of the scaling down of 
the  2013  allocations  for  the  Accompanying  Measures  for  the  Sugar  Protocol 
Countries, Fiji's allcoation has been reduced by € 2.438 million. The availability of 
this allocation (wholly or in part) will, however, be conditional to progress in the Art. 
96  Cotonou  (Art.  37  DCI)  consultation  process  ,  in  the  absence  of  this  only  social 
mitigation interventions are being considered. 

Given  the  continued  socio-economic  deterioration  in  Fiji  the  EU  resumed  targeted 
development  assistance  to  Fiji  in  support  of  vulnerable  populations  in  2011.  This 
assistance is not channelled through the government. 

Since early 2012 some positive developments can be noted, namely the lifting of the 
Public Emergency Regulations on 7 January 2012 and the launch on 9 March 2012 
of a  political process that would  see a new constitution by March 2013 and the re-
establishment of a constitutional democracy through new parliamentary elections by 
September 2014. Restrictions on certain human rights and fundamental freedoms do, 
however, remain. 

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8. 

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11. 

Taking  into  account  the  above  considerations,  the  European  Union  should  at  this 
stage, adapt and extend the current policy and appropriate measures. 

Therefore,  the  Commission  is  proposing  to  the  Council  to  amend  the  aproppriate 
measures  in  order  to  encourage  Fiji  to  continue  on  its  path  towards  restoration  of 
democracy, rule of law and full respect of human rights and fundamental freedoms 
and  to  extend  their  period  of  application  for  a  further  12  months  ending  on  30 
September 2013.  

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.  

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 
welomes recent positive developments in Fiji towards a return to democratic rule and 
encourages  further  steps  namely  regarding  remaining  restrictions  on  human  rights 
and  fundamental  freedoms;  b)  that  the  EU  remains  committed  to  pursuing  the 
enhanced political dialogue under Article 8 of  the Cotonou  Agreement,  (c) that  the 
assessment  of  progress  made  towards  return  to  constitutional  rule  will  continue  to 
guide the EU in the upcoming decisions on development cooperation, and that in this 
spirit  the  EU  is  willing  to  engage  in  the  preparation  of  the  11th  EDF  programming 
process, and to notify in due course an indicative national allocation in this process, 
while finalisation, signing and implementation of 11th EDF programming documents 
will be envisaged with the democratically elected government and (d) that an Article 
96 review mission and formal dialogue, to be held after the successful conclusion of 
a credible, inclusive and transparent constitutional consultation process, expected by 
March  2013,  could  result  in  a  further  positive  review  of  appropriate  measures  if 
progress permits.  

12. 

The modifications to the appropriate measures represent a first cautious response to 
relevant  recent  developments  and  allow  in  particular  the  start  of  programming 
discussions  for  the  11th  EDF,  and  the  notification  of  Fiji's  11th  EDF  indicative 
allocation once the necessary decisions on the establishment of the next EDF allow. 
The substance of the current measures remains untouched.  

Conclusion 

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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2012/0225 (NLE) 

Proposal for a 

COUNCIL DECISION 

Amending 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, and extending the period of application thereof  

THE COUNCIL OF THE EUROPEAN UNION, 

Having regard to the Treaty on the Functioning of the European Union, 

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  20001,  as  revised  at  Ouagadougou, 
Burkina  Faso  on  22  June  20102  (hereinafter  referred  to  as  the  Cotonou  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  Cotonou  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) 

Council Decision  2007/641/EC5 was adopted to take appropriate measures  following 
the  violation  of  the  essential  elements  referred  to  in  Article  9  of  the  Cotonou 
Agreement,  and  the  values  referred  to  in  Article  3  of  the  Development  Cooperation 
Instrument. 

(2) 

Those  measures  have  been  extended  by  Council  Decision  2009/735/EC6,  and 
subsequently by Council Decisions 2010/208/EU7, 2010/589/EU8, 2011/219/EU9 and 

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OJ L 317, 15.12.2000, p.3. 
OJ L 287, 4.11.2010, p. 3. 
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 
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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2011/637/EU10,  since  not  only  has  the  Republic  of  Fiji  yet  to  implement  important 
commitments  it  made  in  consultations  held  in  April  2007  concerning  essential 
elements  of  the  Cotonou  Agreement,  but  there  had  also  been  important  regressive 
developments concerning a number of these commitments. 

(3) 

However,  since  early  2012  some  positive  developments  towards  restoration  of 
democracy  in  Fiji  can  be  noted,  which  should  be  acknowledged,  and  a  prospective 
reengagement  toward  the  programming  of  future  development  assistance  should 
therefore be considered. 

(4) 

Decision  2007/641/EC  expires  on  30  September 2012.  It  is  appropriate  to  update  its 
content and to extend its validity accordingly. 

HAS ADOPTED THIS DECISION: 

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 30 September 2013. 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 Fiji. 

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 93, 7.4.2011, p.2-8 
OJ L 252, 28.9.2011, p. 1-7 

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ANNEX 

Draft letter 

H.E. Ratu Epeli NAILATIKAU 

President of the Republic of Fiji  

Suva 

Republic of Fiji 

Excellency, 

The  European  Union  (EU)  attaches  great  importance  to  the  provisions  of  Article  9  of  the 
Cotonou Agreement and Article 3 of the Development Cooperation Instrument. The ACP-EU 
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 EU 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 thereof, 
the  EU  invited  Fiji  to  consultations,  as  provided  for  in  the  Cotonou  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.  

Some  positive  steps  have  taken  place  since  early  2012;  namely  the  lifting  of  the  Public 
Emergency Regulations on 7 January 2012 and the announcement on 9 March of a political 
process  that  would  see  a  new  constitution  by  March  2013  and  the  re-establishment  of  a 
constitutional  democracy  through  new  parliamentary  elections  by  September  2014.  Still, 
restrictions on certain human rights and fundamental freedoms remain  

In recognition of these developments and in the spirit of partnership forming the cornerstone 
of the Cotonou Agreement, the EU expresses its readiness to engage in new formal dialogue 
regarding  these  developments.  Such  a  dialogue  could  be  envisaged  on  the  occasion  of  an 
Article  96  review  mission,  after  the  successful  conclusion  of  an  inclusive,  credible  and 
transparent constitutional consultation process, expected in March 2013.  

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Accordingly,  the  EU  has  decided  to  extend  the  existing  appropriate  measures  for  Fiji  and 
amend them as a first response to the steps taken by Fiji, allowing in particular the launch of 
programming  discussions  for  the  11th  EDF,  and  notification  in  due  course  of  an  indicative 
allocation  for  Fiji.  Finalisation,  signing  and  implementation  of  the  11th  EDF  programming 
documents  will  then  be  envisaged  with  the  future  democratically  elected  government. 
Consequently,  it  is  of  particular  importance  that  the  Interim  Government  commits  to  an 
inclusive, credible  and transparent constitutional consultation  process and  domestic  political 
dialogue and respects in particular its commitments with regard to human rights and the rule 
of  law  and  lifts  remaining  restrictions.  While  the  EU’s  position  is  guided  by  the  essential 
elements of the Cotonou 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  this 
dialogue. 

If  the  envisaged  review  and  dialogue  have  a  positive  outcome,  the  EU  is  committed  to  a 
further positive review of these appropriate measures. Conversely, if the situation in Fiji does 
not  improve,  then  further  losses  of  EU  development  funds  for  Fiji  are  set  to  continue.  In 
particular, the assessment of further progress made towards a return to constitutional rule will 
guide  the  EU  in  the  upcoming  decisions  on  Fiji's  National  Indicative  Programme  under  the 
11th European Development Fund.  

Until  the  formal  dialogue  has  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  and  vulnerable  populations  may 

continue; 

–  the cooperation activities under way, in particular under the 8th and 9th EDFs, was allowed 

to 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  was  allowed  to 
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 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; 

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

decided to delay general elections until September 2014; 

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

reform accompanying measures for 2011-2013 can proceed; 

–  the  availability  of  the  indicative  allocation  under  the  multi-annual  indicative  programme 
for  accompanying  measures  for  former  Sugar  Protocol  countries  2011-2013  will  be 
conditional  on  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; 

–  the  preparation  of  programming  for  the  11th  EDF  may  be  launched,  so  that  Fiji  could 

expect to be notified of an indicative allocation in due course.  

–  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; 

–  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  EU 
welcomes in this context recent progress concerning the enagagement with the Pacific Island's 
Forum Ministerial Contact Group set up to monitor the progress of Fiji's peparations for the 
elections and return to democacy. 

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 readjust 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, 

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For the Council 

C. ASHTON 

President 

For the Commission 

A. PIEBALGS 

Commissioner 

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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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