Proposal for a COUNCIL IMPLEMENTING DECISION amending Implementing Decision 2014/170/EU establishing a list of non-cooperating third countries in fighting illegal, unreported and unregulated fishing, as regards the Union of the Comoros
Date: 2017-05-23
Institutions: Directorate-General for Maritime Affairs and Fisheries, European Commission
Subjects: Comoros, common fisheries policy, conservation of fish stocks, exchange of information, fishing controls, fishing vessel, international cooperation, sea fishing, ship's flag, third country

EN 

   EN 

   EUROPEAN COMMISSION  Brussels, 23.5.2017  COM(2017) 241 final 2017/0096 (NLE)   Proposal for a COUNCIL IMPLEMENTING DECISION amending Implementing Decision 2014/170/EU establishing a list of non-cooperating third countries in fighting illegal, unreported and unregulated fishing, as regards the Union of the Comoros  
 
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This  proposal  concerns  the  application  of  Council  Regulation  (EC)  No  1005/2008  of  29 
September 2008 on establishing a Community system to prevent, deter and eliminate illegal, 
unreported and unregulated fishing (IUU fishing), amending Regulations (EEC) No 2847/93, 
(EC) No 1936/2001 and (EC) No 601/2004 and repealing Regulations (EC) No 1093/94 and 
(EC) No 1447/19991 (the IUU Regulation). 

General context 

This proposal is made in the context of the implementation of the IUU Regulation and is the 
result  of  investigation  and  dialogue  procedures  which  were  carried  out  in  line  with  the 
substantive and procedural requirements laid out in the IUU Regulation foreseeing inter alia 
that all countries should discharge the duties incumbent upon them under international law as 
flag, port, coastal or market State to prevent, deter and eliminate IUU fishing. 

Existing provisions in the area of the proposal 

Commission  Decision  of  1  October  2015  on  notifying  a  third  country  of  the  possibility  of 
being  identified  as  a  non-cooperating  third  country  in  fighting  illegal,  unreported  and 
unregulated fishing (OJ C 324, 2.10.2015, p. 6). 

Commission  Implementing  Decision  of  23  May  2017  (OJ  C  XXXX,  XX.XX.2017,  p  …) 
identifying the Union of the Comoros as a non-cooperating third country in fighting illegal, 
unreported and unregulated fishing. 

Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

Interested  parties  concerned  by  the  proceeding  have  had  the  possibility  to  defend  their 
interests during the investigation and dialogue procedures, in line with the provisions of the 
IUU Regulation. 

Collection and use of expertise 

There was no need for external expertise. 

Impact assessment 

This proposal is the result of the implementation of the IUU Regulation. 

1 

OJ L 286, 29.10.2008, p. 1. 

EN 

2 

   EN 

                                                 
The IUU Regulation does not contain provisions for a general impact assessment but contains 
an exhaustive list of conditions that have to be assessed. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

On 1 October 2015 the Commission, by Commission Decision, notified the Comoros that the 
Commission considers as possible of being identified as non-cooperating country pursuant 
to the IUU Regulation.  

The Commission initiated démarches in respect of the Comoros. These démarches consisted 
inter  alia of actions providing reasons of its  actions,  opportunity for the country to respond 
and  refute,  right  to  ask  for  and  provide  additional  information,  proposed  actions  plan  to 
remedy  the  situation as  well  as  adequate  time  to  answer  and  reasonable  time  to  remedy  the 
situation.  

On  23  May  2017  the  Commission,  by  Commission  Implementing  Decision,  identified  the 
Comoros  as  a  third  country  that  the  Commission  considers  as  a  non-cooperating  third 
country pursuant to the IUU Regulation. 

The  attached  proposal  for  a  Council  Implementing  Decision  is  based  on  the  findings  which 
have confirmed that the Comoros has failed to discharge the duties incumbent upon it under 
international law as flag, port, coastal or market State.  

It is therefore proposed that the Council adopts the attached proposal for a Decision. 

Legal basis 

Council Regulation (EC) No 1005/2008 of 29 September 2008 on establishing a Community 
system to prevent, deter and eliminate IUU fishing. 

Subsidiarity principle 

The proposal  falls  under the exclusive competence of the European Union. The subsidiarity 
principle therefore does not apply. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reasons: 

The  form  of  action  is  described  in  the  IUU  Regulation  and  leaves  no  scope  for  national 
decision. 

Indication  of  how  financial  and  administrative  burden  falling  upon  the  Union,  national 
governments, regional and local authorities, economic operators and citizens is minimised and 
proportionate to the objective of the proposal is not applicable. 

Choice of instruments 

Proposed instruments: decision. 

Other means would not be adequate for the following reason: 

EN 

3 

   EN 

Other  means  would  not  be  adequate  because  the  IUU  Regulation  does  not  provide  for 
alternative options. 

4. 

BUDGETARY IMPLICATION  

The proposal has no implication for the Union budget. 

EN 

4 

   EN 

2017/0096 (NLE) 

Proposal for a 

COUNCIL IMPLEMENTING DECISION 

amending Implementing Decision 2014/170/EU establishing a list of non-cooperating 
third countries in fighting illegal, unreported and unregulated fishing, as regards the 
Union of the Comoros 

THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to Council Regulation (EC) No 1005/2008 of 29 September 2008 establishing 
a  Community  system  to  prevent,  deter  and  eliminate  illegal,  unreported  and  unregulated 
fishing,  amending  Regulations  (EEC)  No  2847/93,  (EC)  No  1936/2001  and  (EC)  No 
601/2004  and  repealing  Regulations  (EC)  No  1093/94  and  (EC)  No  1447/19992,  and  in 
particular Article 33(1) thereof, 

Having regard to the proposal submitted by the European Commission,  

Whereas: 

1. 

(1) 

(2) 

(3) 

(4) 

(5) 

2 
3 

INTRODUCTION 

Regulation  (EC)  No  1005/2008  (the  IUU  Regulation)  establishes  a  Union  system  to 
prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing. 

Chapter  VI  of  the  IUU  Regulation  lays  down  the  procedure  with  respect  to  the 
identification  of  non-cooperating  third  countries,  démarches  in  respect  of  countries 
identified  as  non-cooperating  third  countries,  the  establishment  of  a  list  of  non-
cooperating third countries, removal from the list of non-cooperating third countries, 
publicity of the list of non-cooperating third countries and any emergency measures. 

On  24  March  2014, 
the  Council  adopted  Council  Implementing  Decision 
2014/170/EU  establishing  a  list  of  non-cooperating  third  countries  in  fighting  IUU 
fishing pursuant to Regulation (EC) No 1005/2008 establishing a Community system 
to prevent, deter and eliminate illegal, unreported and unregulated fishing. 

In accordance with Article 32 of the IUU Regulation, by Decision of 1 October 2015 
(Decision  of  1  October  2015)3,  the  Commission  notified  the  Union  of  the  Comoros 
(hereinafter  ‘the  Comoros’)  of  the  possibility  of  being  identified  as  a  country  which 
the Commission considers as a non-cooperating third country. 

In  the  Decision  of  1  October  2015,  the  Commission  included  the  information 
concerning 
the  essential  facts  and  considerations  underlying  such  possible 
identification. 

OJ L 286, 29.10.2008, p. 1. 
Commission  Decision  of  1  October  2015  on  notifying  a  third  country  of  the  possibility  of  being 
identified as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (OJ 
C 324, 2.10.2015, p. 6). 

EN 

5 

   EN 

                                                 
(6) 

(7) 

(8) 

(9) 

The  Decision  was  notified  to  the  Comoros  together  with  a  letter  suggesting  the 
Comoros to implement, in close cooperation with the Commission, an action plan to 
rectify the identified shortcomings. 

The Commission invited the Comoros in particular: (i) to take all necessary measures 
to  implement  the actions  contained in  the  action plan suggested by the  Commission; 
(ii) to assess the implementation of the actions contained in the action plan suggested 
by  the  Commission;  and  (iii)  to  send  every  six  months  a  detailed  report  to  the 
Commission  assessing  the  implementation  of  each  action  as  regards,  inter  alia,  its 
individual and/or overall effectiveness in ensuring a fully compliant fisheries control 
system. 

The  Comoros  was  given  the  opportunity  to  respond  in  writing  and  orally  to  the 
Decision of 1 October 2015 as well as to other relevant information communicated by 
the Commission, allowing it to submit evidence refuting or completing the facts stated 
in the Decision of 1 October 2015. The Comoros was assured of its right to ask for, or 
to provide, additional information. 

By  its  Decision  and  letter  of  1  October  2015,  the  Commission  opened  a  process  of 
dialogue with the Comoros and highlighted that it considered a period of six months as 
being sufficient in principle for reaching an agreement. 

(10)  The  Commission  continued  to  seek  and  verify  all  information  it  deemed  necessary. 
The oral and written comments submitted by the Comoros following the Decision of 1 
October  2015  were  considered  and  taken  into  account.  The  Comoros  was  kept 
informed, either orally or in writing, of the Commission's deliberations. 

(11)  The Commission however took the view that the areas of concern and shortcomings as 
described in the Decision of 1 October 2015 had not been addressed sufficiently by the 
Comoros  and  that  the  measures  suggested  in  a  plan  of  action  had  not  been  fully 
implemented. 

(12)  The  Commission  consequently  identified  the  Comoros  as  a  non-cooperating  third 
Implementing  Decision 

fishing,  by  Commission 

fighting 

IUU 

country 
2017/xxx/EU4. 

in 

(13)  Based  on  the  investigation  and  dialogue  procedures  carried  out  by  the  Commission, 
including  the  correspondence  exchanged  and  the  meetings  held,  and  the  reasons 
underlying  the Decision of 1 October 2015 and Commission  Implementing Decision 
2017/xxx/EU,  it  is  appropriate  to  place  the  Comoros  on  the  list  of  non-cooperating 
third countries in fighting IUU fishing. 

(14)  Pursuant  to  Article  34(1)  of  the  IUU  Regulation  the  Council,  acting  by  qualified 
majority on a proposal from the Commission, is to remove a third country from the list 
of non-cooperating third countries if that country demonstrates that the situation that 
warranted  its  listing  has  been  rectified.  A  removal  decision  is  also  to  take  into 
consideration  whether  the  identified  third  countries  concerned  have  taken  concrete 
measures capable of achieving a lasting improvement of the situation. 

2. 

PROCEDURE WITH RESPECT TO THE COMOROS 

(15)  On 1 October 2015, the Commission  notified the Comoros pursuant to Article 32 of 
the IUU Regulation that it considered the possibility of identifying the Comoros as a 

4 

Commission  Implementing  Decision  2017/xxx/EU  of  23  May  2017  identifying  the  Union  of  the 
Comoros as a non-cooperating third country in fighting illegal, unreported and unregulated fishing (OJ 
L xx, dd.mmmm.2017, p. x). 

EN 

6 

   EN 

                                                 
non-cooperating  third  country  and  invited  the  Comoros  to  implement,  in  close 
cooperation with  its services,  an action plan to  rectify the shortcomings  identified  in 
the  Decision  of  1  October  2015.  Since  that  Decision,  the  Comoros  made  written 
submissions  making  its  views  known  and  met  the  Commission  to  discuss  relevant 
points. The Commission provided the Comoros with relevant information in writing. 
The  Commission  continued  to  seek  and  verify  all  information  it  deemed  necessary. 
The oral and written comments submitted by the Comoros following the Decision of 1 
October  2015  were  considered  and  taken  into  account,  while  the  Comoros  was  kept 
informed  either  orally  or  in  writing  of  the  Commission's  deliberations.  The 
Commission took the view that the areas of concern and shortcomings as described in 
the Decision of 1 October 2015 had not  been addressed sufficiently by the Comoros 
and that the measures suggested in a plan of action had not been fully implemented. 

3. 

(16) 

IDENTIFICATION  OF  THE  COMOROS  AS  A  NON-COOPERATING 
THIRD COUNTRY 

In  the  Decision  of  1  October  2015,  the  Commission  analysed  the  duties  of  the 
Comoros and evaluated its compliance with its international obligations as flag, port, 
coastal  or  market  State.  For  the  purpose  of  that  review,  the  Commission  took  into 
account the parameters listed in Article 31(4) to (7) of the IUU Regulation. 

(17)  The Commission reviewed the compliance of the Comoros in line with the findings of 
the  Decision  of  1  October  2015,  and  having  regard  to  relevant  information  provided 
thereon  by  the  Comoros,  the  suggested  plan  of  action,  and  the  measures  taken  to 
rectify the situation. 

(18)  The main shortcomings identified by the Commission were related to several failures 
to  implement  international law obligations, linked in  particular  to  the adoption  of an 
adequate  legal  framework  and  registration  and  licensing  procedures,  lack  of 
cooperation  and  information  sharing  within  the  Comorian  administration  and  with 
third  countries  where  Comorian  vessels  operate,  lack  of  adequate  and  efficient 
monitoring and lack of a deterrent sanctioning system. Other identified shortcomings 
relate, more generally to compliance with international obligations including Regional 
Fisheries  Management  Organisations  (RFMOs)  recommendations  and  resolutions.  A 
lack of compliance with recommendations and resolutions from relevant bodies such 
as the International Plan of Action against Illegal, Unreported and Unregulated Fishing 
of the United Nations (IPOA IUU) and the FAO Voluntary Guidelines for Flag State 
Performance were also identified. However, the lack of compliance with non-binding 
recommendations and resolutions was considered only as supporting evidence and not 
as a basis for the identification. 

(19) 

In Implementing Decision 2017/xxx/EU, the Commission identified the Comoros as a 
non-cooperating third country pursuant to the IUU Regulation. 

(20)  With respect to the possible constraints upon the Comoros as a developing country, it 
is noted that that the development status and overall performance of the Comoros with 
respect  to  fisheries  management  may  be  impaired  by  its  level  of  development. 
However, account taken of the nature of the established shortcomings of the Comoros, 
the  Comorian  development  level  cannot  fully  excuse  or  otherwise  justify  its  overall 
performance  as  flag,  port,  coastal  or  market  State  with  respect  to  fisheries  and  the 
insufficiency of its actions to prevent, deter and eliminate IUU fishing. 

(21)  Having  regards  to  the  Decision  of  1  October  2015  and  the  Implementing  Decision 
2017/xxx/EU  of  23  May  2017,  and  to  the  dialogue  process  with  the  Comoros  held 

EN 

7 

   EN 

with the Commission and its outcome, it can be concluded that the actions undertaken 
by  the  Comoros  in  light  of  its  duties  as  flag  State  are  insufficient  to  comply  with 
Articles 63, 64, 91, 94, 117 and 118 of the United Nations Convention on the Law of 
the Sea. 

(22)  Thus,  the  Comoros  has  failed  to  discharge  its  duties  under  international  law  as  flag 

State to take action to prevent, deter and eliminate IUU fishing. 

4. 

(23) 

ESTABLISHMENT  OF  A  LIST  OF  NON-COOPERATING  THIRD 
COUNTRIES 

In view of the conclusions reached with regard to the Comoros, that country should be 
added,  in  accordance  with  Article  33  of  the  IUU  Regulation,  to  the  list  of  non-
cooperating  third  countries  established  by  the  Implementing  Decision  2014/170/EU. 
Implementing Decision 2014/170/EU should therefore be amended accordingly. 

(24)  The  inclusion  of  the  Comoros  in  the  list  of  non-cooperating  countries  in  the  fight 
against IUU fishing entails the application of the measures laid down in Article 38 of 
the IUU Regulation. Article 38(1) of the IUU Regulation provides for the prohibition 
of  importation  of  fisheries  products  caught  by  vessels  flying  the  flag  of  non-
cooperating countries. In the case of the Comoros, that prohibition should importation 
cover  all  stocks  and  species,  as  defined  in  Article  2(8)  of  the  IUU  Regulation,  since 
the  lack  of  appropriate  measures  adopted  in  relation  to  IUU  fishing  leading  to  the 
identification of the Comoros as a non-cooperating third country are not limited to a 
given stock or species. 

(25) 

(26) 

It is  noted that IUU fishing,  inter alia, depletes fish stocks, destroys  marine habitats, 
undermines  the  conservation  and  sustainable  use  of  marine  resources,  distorts 
competition, endangers food security, puts honest fishermen at an unfair disadvantage 
and weakens coastal communities. In view of the magnitude of the problems related to 
IUU fishing, it is considered necessary for the Union to expeditiously implement the 
actions  in  respect  to  the  Comoros  as  a  non-cooperating  third  country.  As  a 
consequence,  this  Decision  should  enter  into  force  on  the  day  following  that  of  its 
publication in the Official Journal of the European Union. 

If  the  Comoros  demonstrates  that  the  situation  that  warranted  its  listing  has  been 
rectified,  the  Council,  acting  by  qualified  majority  on  a  proposal  from  the 
Commission,  is  to  remove  the  Comoros  from  the  list  of  non-cooperating  third 
countries  in  line  with  Article  34(1)  of  the  IUU  Regulation.  Any  removal  decision 
should also take into consideration whether the Comoros has taken concrete measures 
capable of achieving a lasting improvement of the situation. 

HAS ADOPTED THIS DECISION:  

"The  Union  of  the  Comoros"  shall  be  added  in  the  Annex  to  Implementing  Decision 
2014/170/EU. 

Article 1 

EN 

8 

   EN 

Article 2 

This Decision shall enter into force on the day following that of its publication in the Official 
Journal of the European Union. 

Done at Brussels, 

For the Council 
The President 

EN 

9 

   EN