CELEX: 32014D1213(01)
Language: en
Date: 2014-12-12 00:00:00
Title: Commission Decision of 12 December 2014 notifying a third country that the Commission considers as possible of being identified as non-cooperating third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing

13.12.2014   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 447/6
            
         COMMISSION DECISION
   of 12 December 2014
   notifying a third country that the Commission considers as possible of being identified as non-cooperating third country pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing
   (2014/C 447/09)
   THE EUROPEAN COMMISSION,
   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 1447/1999 (1), and in particular Article 32 thereof,
   Whereas:
   1.   INTRODUCTION
   
   
               (1)
            
            
               Regulation (EC) No 1005/2008 (‘the IUU Regulation’) establishes a Union system to prevent, deter and eliminate illegal, unreported and unregulated (IUU) fishing.
            
         
               (2)
            
            
               Chapter VI of the IUU Regulation lays down the procedure to identify non-cooperating third countries, the démarches in respect of such countries, the establishment of a list of such countries, the removal from that list, the publicity of that list and any emergency measures.
            
         
               (3)
            
            
               In accordance with Article 32 of the IUU Regulation, the Commission is to notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification is to be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission is also to take all the démarches set out in Article 32 of that Regulation with respect to the notified third countries. In particular, the Commission is to include in the notification information concerning the essential facts and considerations underlying such identification, provide those countries with the opportunity to respond and provide evidence refuting the identification or, where appropriate, a plan of action to improve and measures taken to rectify the situation. The Commission is to give to the notified third countries adequate time to answer the notification and reasonable time to remedy the situation.
            
         
               (4)
            
            
               Pursuant to Article 31 of the IUU Regulation, the Commission is to identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country is to be identified as non-cooperating if it fails to discharge its duties under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.
            
         
               (5)
            
            
               The identification of non-cooperating third countries is to be based on the review of all information as set out under Article 31(2) of the IUU Regulation.
            
         
               (6)
            
            
               In accordance with Article 33 of the IUU Regulation, the Council is to establish a list of non-cooperating third countries. The measures set out, inter alia, in Article 38 of the IUU Regulation apply to those countries.
            
         
               (7)
            
            
               Pursuant to Article 20(1) of the IUU Regulation, the acceptance of validated catch certificates from third country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by the fishing vessels of the concerned third countries.
            
         
               (8)
            
            
               Pursuant to Article 20(4) of the IUU Regulation, the Commission is to cooperate administratively with third countries in areas pertaining to the implementation of that Regulation.
            
         2.   PROCEDURE WITH RESPECT TO THE SOLOMON ISLANDS
   
   
               (9)
            
            
               The notification of Solomon Islands as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010.
            
         
               (10)
            
            
               From 11 to 14 February 2014, the Commission, with the support of the European Fisheries Control Agency (EFCA), visited the Solomon Islands in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.
            
         
               (11)
            
            
               The visit sought to verify information concerning the Solomon Islands’ arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures to be complied with by its fishing vessels, the measures taken by the Solomon Islands to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the Union’s catch certification scheme.
            
         
               (12)
            
            
               The final report of the visit was sent to the Solomon Islands on 28 February 2014.
            
         
               (13)
            
            
               The preliminary comments of Solomon Islands on that final report were received on 6 May 2014 and 20 May 2014. A formal reply to the observations on the legal and administrative framework was submitted on 1 October 2014 and 6 October 2014.
            
         
               (14)
            
            
               Further information on the application of the Union’s catch certification scheme, following request from the Commission on 19 March 2014, was submitted by the Solomon Islands on 28 March 2014 and 7 June 2014.
            
         
               (15)
            
            
               A meeting took place between the Solomon Islands and the Commission on 20 May 2014.
            
         
               (16)
            
            
               The Solomon Islands are a member of the Western and Central Pacific Fisheries Commission (WCPFC). The Solomon Islands ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). It is party to the South Pacific Forum Fisheries Agency Convention (2) (FFA Convention) and to the Nauru Agreement (PNA) concerning cooperation in the management of fisheries of common interest (3).
            
         
               (17)
            
            
               In order to evaluate the Solomon Islands’ compliance with their international obligations as flag, port, coastal or market State set out in the international agreements referred to in recital 16 and established by the relevant Regional Fisheries Management Organisations (RFMOs) referred to in recital 16, the Commission sought and analysed all the information it deemed necessary for that purpose.
            
         
               (18)
            
            
               The Commission also used information derived from available data published by WCPFC as well as publicly available information.
            
         3.   POSSIBILITY OF THE SOLOMON ISLANDS BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY
   
   
               (19)
            
            
               Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of the Solomon Islands as flag, port, coastal or market State. For the purpose of that review the Commission took into account the criteria listed in Article 31(4) to (7) of the IUU Regulation.
            
         3.1.   Recurrence of IUU Vessels and IUU trade flows (Article 31(4) of the IUU Regulation)
   
   
               (20)
            
            
               With respect to Solomon Islands-flagged vessels it is noted that on the basis of information retrieved from RFMOs vessel lists there are no vessels in provisional or final IUU lists and no evidence of past cases of Solomon Islands-flagged vessels exists that would enable the Commission to analyse the performance of Solomon Islands with respect to recurring IUU fishing activities in accordance with Article 31(4)(a) of the IUU Regulation.
            
         
               (21)
            
            
               Pursuant to Article 31(4)(b) of the IUU Regulation, the Commission also examined the measures taken by the Solomon Islands in respect of access of fisheries products stemming from IUU fishing to its market.
            
         
               (22)
            
            
               The Commission considers on the basis of an assessment of all the information at its disposal that Solomon Islands cannot ensure that fishery products entering the Solomon Islands or Solomon Islands-based processing plants do not stem from IUU fishing. That is due to systemic problems undermining the possibility of Solomon Islands authorities to trace catches because of the lack of available official information about fish landed, imported and/or processed. The main elements on which the Commission based its assessment are summarised in recitals 23 to 39.
            
         
               (23)
            
            
               The main fishing activities in waters under the Solomon Islands jurisdiction are not conducted by Solomon Islands-flagged vessels, but by vessels under foreign flags, which use in some cases local ports. In the report to the ninth session of the WCPFC’s 2013 Scientific Committee (4), the Solomon Islands state that a total of 434 vessels were active in the Solomon Islands waters in 2012, namely 214 purse-seine, 200 longline and 20 pole and line vessels. Only 6 purse-seine, 2 longline and 2 pole and line vessels were Solomon Islands-flagged. During the Commission’s visit in February 2014, the Solomon Islands’ authorities confirmed that 401 industrial fishing vessels were licensed to fish in Solomon Islands waters. The decrease of licensed vessels from 2012 is due to the reduction of licenses allocations for the vessels operating under charter agreement. Nevertheless, there are still 143 longline and 2 purse-seine vessels chartered by five locally-based companies. The size of the involved fleet underpins the necessity for measures ensuring non-access of fisheries products stemming from IUU fishing to Solomon Islands market.
            
         
               (24)
            
            
               According to the Tuna Management and Development plan draft submitted in November 2013 by the Solomon Islands, total catches in Solomon Islands Exclusive Economic Zone (EEZ) amounted to 93 000 tonnes in 2012. That represents around half of the catches of previous years (185 000 tonnes in 2010 and 177 000 tonnes in 2011).
            
         
               (25)
            
            
               The tuna processing industry in Solomon Islands is expanding. Indeed, there are several projects by foreign investors to set up new plants in joint venture with the Solomon Islands. Therefore, the Commission analysed the situation pertaining to the activities of that industry and any impact that those operations may have in respect of access of fisheries products stemming from IUU fishing to the Solomon Islands market.
            
         
               (26)
            
            
               The International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (5) (IPOA IUU) provides guidance on internationally agreed market-related measures which support the reduction or elimination of trade in fish and fish products derived from IUU fishing. The IPOA IUU also suggests in point 71 that States should take steps to improve the transparency of their markets in order to allow the traceability of fish or fish products. Equally, the Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries (FAO Code of Conduct) outlines, in particular in its Article 11, good practices for post-harvest and responsible international trade. Article 11(1)(11) of that Code of Conduct (6) requests States to ensure that fish and fishery products are traded internationally and domestically in accordance with sound conservation and management practices through improving the identification of the origin of fish and fishery products.
            
         
               (27)
            
            
               During its visit to Solomon Islands in February 2014, the Commission met with an operator of a tuna processing plant whose products are exported to the Union.
            
         
               (28)
            
            
               According to that economic operator, its processing plant is exclusively supplied by the purse-seine vessels flagged in the Solomon Islands with regard to the production of cooked tuna loins or flakes for the Union market. The rest stems from longline vessels and is exported mainly to the US or the regional market (Fiji, Vanuatu, Papua New-Guinea). The processing plant would be supplied only with domestic products without importation of raw material. However, in that context, it has to be highlighted that according to the understanding of competent authorities all catches obtained in the Solomon Islands’ EEZ are considered as originating in the Solomon Islands irrespective of the fishing vessel’s flag, contrary to the basic rules of origin rules existing in EU law (7). It was also evident that the Solomon Islands authorities had not introduced any specific measure to control the provenance of the fish raw materials and no specific measures were detected to monitor the access of fisheries products stemming from IUU fishing to the Solomon Islands. In that respect, there is a risk that raw material caught by fishing vessels flagged in a country other than the Solomon Islands, including countries which are not allowed to export to the Union under the IUU Regulation, enters the processing industry without adequate control on the products’ traceability.
            
         
               (29)
            
            
               During its visit, the Commission also met with other operators. The Commission endeavoured to verify the basic principles and policies applied by operators with respect to traceability of trade flows of fishing products from net to plate. The operators could not answer clearly to the questions on the traceability chain and the establishment of the quantities sold and processed. As for the raw material sold to the processing plants in the Solomon Islands and other third countries, the processing plants rely purely on estimations of the weight and on the invoices they receive from their customers without making further verifications on the products. At no stage there is a real control or verification. Likewise, the processing plant operator attributes to each lot of raw material a code upon reception, but afterwards the products are not systematically followed through the processing chain, and no reliable link can be ensured between the final product and the actual underlying catch.
            
         
               (30)
            
            
               In addition, the level of knowledge of customs officials in the Solomon Islands was found to be very basic. Customs officials rely on the declarations made by the operators on the export declaration without further verification of the quantities and no traceability system to link the consignment with the customs declarations. In doing so the authorities have no system of control on the raw material used for processing fisheries products and they cannot link the raw materials existing in Solomon Islands market with the exported fisheries products.
            
         
               (31)
            
            
               As regards the systems put in place to ensure traceability, the Commission concluded that the Solomon Islands were unable to ensure systematic control of the landings. Even though local authorities stated that 100 % of landings in the two authorised ports were covered, they could not prove how inspectors were deployed to ensure this coverage. The Commission found that only one inspector was posted in the port where most of landings take place while the rest of inspectors would move to the other port (which is not on the main island were authorities have their main administrative base and resources) after every landing. The Solomon Islands recognised the need to strengthen their control and monitoring system, such as the traceability system for fishery products, introduction of landing declarations and systematic controls and enhancement cooperation with customs authorities.
            
         
               (32)
            
            
               A thorough analysis of catch certificates validated from the Solomon Islands authorities for exports to the Union revealed a series of weaknesses in the validation process. The Commission’s visit in February 2014 confirmed that analysis. In particular, it was concluded that there was a lack of a systematic control of the information provided in the catch certificates. There was no traceability system in place and the quantities stated in the catch certificate were established by the operator. The competent authorities have to completely rely on that. The catch certificates for the direct importations of processed products are systematically validated after the consignment has already left the Solomon Islands. The Solomon Islands are not in a position to ensure any control or traceability over those products which they physically never inspect.
            
         
               (33)
            
            
               Further, the only validating officer does not have direct access to control data such as Vessel Monitoring System (VMS), licence information or logsheets. If any verification or cross-check takes place before the validation this has to be done via telephone calls to the headquarters of the Ministry of Fisheries and Marine Resources where the pertinent information is centralised. There was no documentation available on any such verification.
            
         
               (34)
            
            
               The fact that the validation systematically is done the same day as the exporter declaration (with very few exceptions) indicates that prior verification and data cross-checks are limited if not inexistent. In any case, no documentation of the cross-checks was provided.
            
         
               (35)
            
            
               In addition, a number of deficiencies were detected in the catch certificates concerning incoherencies in the numbering system, insufficient information on the applicable conservation and management measures, the catch area as well as serious inconsistencies in the dates such as that the validation date indicated precedes the exporter declaration or the landing declaration precedes the catch date. Such basic errors put on stake the credibility of the entire validation procedure.
            
         
               (36)
            
            
               The Commission also detected practices where no information on landings of fish existed (no landing declarations) and the Solomon Islands used alternatively information from transhipment authorisations at port to state quantities in catch certificates. Likewise, it was noted that operators use templates of catch certificates with prefilled information on the vessels, the species, the product codes, etc. There were samples found where the catch certificate was validated with spare lines for bigeye or yellowfin without the quantities. That opens the risk of manipulation of the catch certificate after validation.
            
         
               (37)
            
            
               Furthermore, several examples of catch certificates were found where different versions with different quantities were presented upon importation of the products to the Union. The Solomon Islands explained that at the operator’s request they issue additional catch certificates for the same consignment, without questioning the reason for the demand or obtaining the initial original back to avoid fraudulent misuse. That practice together with the other shortcomings detected results in a considerable risk of laundering of IUU fishing or at least non-qualifying fish for export to the Union. In particular the countries in the region that are not qualified to export fish products to the Union could take advantage of the weaknesses of the validation system of the Solomon Islands to cover their fish for indirect importation to the Union. Again, the Solomon Islands showed a lack of understanding and awareness of the risk generated by with the over-coverage of quantities by duplication or triplication of catch certificates.
            
         
               (38)
            
            
               The Solomon Islands accepted all the shortcomings of the catch certification scheme presented in recitals 32 to 37 and explained the mistakes by the incompetence of the officials in charge. They explained that they were working on improving the catch certification process. In that respect, a series of Standard Operational Procedures (SOPs) have been drafted and the staff is being trained to facilitate their implementation. Nevertheless, all the information provided referred to future plans without any concrete tangible results. In addition, the Commission endeavoured to verify if the validation process of catch certificates improved following the Commission’s visit in February 2014 and the introduction of safeguard measures by the Solomon Islands. However, based on the information at its disposal, the Commission has not noted any improvement.
            
         
               (39)
            
            
               Given the established lack of traceability and lack of information available to the Solomon Islands about the fish landed, the Solomon Islands cannot ensure that fishery products entering the Solomon Islands or Solomon Islands-based processing plants do not stem from IUU fishing, as presented in recitals 28 to 37. The possibility to control access of IUU products and their subsequent export is also compromised by the ambiguous application of rules of origin as established in recital 28 — as well as by the absence of clear conservation and management measures, described in recitals 63 to 68.
            
         
               (40)
            
            
               Therefore, and given all factual elements gathered by the Commission as well as the statements made by the Solomon Islands, it could be established that, pursuant to Article 31(3) and 31(4)(b) of the IUU Regulation, the Solomon Islands have failed to discharge their duties under international law as a coastal and market State to prevent access of fisheries products stemming from IUU fishing to their market.
            
         3.2.   Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)
   
   
               (41)
            
            
               The Commission analysed whether the Solomon Islands effectively cooperated with the Commission, by providing a response to requests made by the Commission to investigate, provide feed-back or follow-up on IUU fishing and associated activities.
            
         
               (42)
            
            
               While the Solomon Islands involved in the implementation of the catch certification scheme of the IUU Regulation generally respond cooperatively and provide feedback to requests for information or verification, the reliability and correctness of their replies are compromised and undermined by the lack of transparency and the little or no possibilities to ensure traceability of fishery products as established in Section 3.1.
            
         
               (43)
            
            
               In the context of the overall assessment of the fulfilment of the Solomon Islands’ duties to discharge its obligations as flag, port and coastal State, the Commission also analysed whether the Solomon Islands cooperate with other flag States in the fight against IUU fishing.
            
         
               (44)
            
            
               To that purpose, it was established during the Commission’s visit in February 2014 that there was a lack of willingness on the part of the Solomon Islands to cooperate with flag States of vessels operating in waters under their jurisdiction under different fisheries agreements, as the Solomon Islands were not providing flag States systematically with information pertaining to vessels’ data. That is a clear indication that the Solomon Islands do not fulfil their obligations under international law (in particular Article 7(1)(a) of the UNFSA) to ensure effective conservation and management of straddling fish stocks occurring in its waters and to ensure effective and efficient prevention of IUU fishing. That lack of cooperation also contradicts point 40 of FAO Voluntary guidelines on flag State performance (8), according to which flag and coastal States should only enter into fisheries agreements when both are satisfied that such activities will not undermine the sustainability of living marine resources within the jurisdiction of the coastal State.
            
         
               (45)
            
            
               Despite the important number of transhipments of foreign-flagged vessels taking place in the Solomon Islands, the country has not established a collaboration with the flag States of these vessels. Therefore, the Solomon Islands would not be in position to comply with their duties as port State under points 52 to 64 of IPOA IUU. In particular, the Solomon Islands do not comply with their obligations as port State vis-à-vis the foreign-flagged vessels using their ports as they are not cooperating with flag States on basic issues such as exchanging information on landings, transhipments and denials to use a port. Whereas, in their submission of 6 May 2014, the Solomon Islands authorities’ stated that they would write to concerned flag States to strengthen collaboration in completing the transhipment data required on catch certificates for exports to the Union, no concrete arrangements with third countries have been concluded up to now as regards exchange of information and data on transhipments.
            
         
               (46)
            
            
               With regards to the collaboration with Union Member States on the control of the catch certificates validated by the Solomon Islands, the country received verification requests from three Union Member States. The requests were dealt with by the competent authorities and timely answered. However, the replies usually just confirmed the authenticity of the catch certificate without any further explanation. On the spot there was no documentation available on such verification requests.
            
         
               (47)
            
            
               The Commission analysed whether the Solomon Islands had taken effective enforcement measures in respect of operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing had been applied.
            
         
               (48)
            
            
               With respect to compliance and enforcement, the Commission’s visit revealed that Solomon Islands do not have specific legislation to address IUU fishing activities. Such an omission indicates that the Solomon Islands do not ensure flag State control over the fishing vessels as required under Article 94 of UNCLOS. In addition, the Solomon Islands performance with respect to compliance and enforcement is not in accordance with point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and deprive offenders of the benefits accruing from their illegal activities.
            
         
               (49)
            
            
               Indeed, in an audit report published in 2012, the Solomon Islands’ Auditor General (9) noted that the Fisheries Bill in force was outdated and did not cater for the country’s obligations under international, regional, and sub-regional agreements. That finding was agreed by the authorities with whom the Commission met during its visit in February 2014. A new draft of a Fisheries Bill was submitted prior to the visit. However, the sanctions contained in that draft are not adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and to deprive offenders of the benefits accruing from their illegal activities, as requested in Article 25(7) of the WCPFC Convention (10). In particular, the sanction scheme relies on a penalty units system whose legal basis has still not been established. The Solomon Islands acknowledged the obsolescence of the system which has not been applied and explained that they were in the process of reviewing it. An updated draft of the Fisheries Bill was submitted on 6 October 2014. However, the situation remain still problematic because of the unclear definitions of serious infringements, penalty points, repeated infringements and level of penalties and because of their unclear legal consequences.
            
         
               (50)
            
            
               With respect to the Solomon Islands’ existing capacity, it should be noted that, according to the United Nations Human Development Index (11), the Solomon Islands is considered as a low human development country (143rd in 186 countries in 2013). That is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council (12) where Solomon Islands are listed in the category of least developed countries. The list of official development assistance (ODA) recipients of the Organisation for Economic Cooperation and Development (OECD) Development Assistance Committee (DAC) as at 1 January 2013 for reporting on 2012 (13) considers the Solomon Islands as a least developed country. In that respect, the financial and administrative capacity constraints of the competent authorities may be considered as a factor that undermines the ability of the Solomon Islands to fulfil their cooperation and enforcement duties. Nevertheless, it is recalled that shortcomings in cooperation and enforcement are linked to the lack of an adequate legal framework to enables the appropriate follow up actions rather than to the Solomon Islands’ existing capacity to comply with their international obligations. In that vein, the Commission notes that, on the basis of information obtained during the Commission visit in February 2014, it cannot be considered that the Solomon Islands lack financial resources but rather that they lack the necessary legal and administrative environment to ensure the efficient and effective performance of their duties as flag, coastal, port and market State.
            
         
               (51)
            
            
               Furthermore, it should be highlighted that, in accordance with the recommendations in points 85 and 86 of the IPOA IUU concerning special requirements of developing countries, the Union assisted the Solomon Islands in the application of the IUU Regulation through a specific technical assistance programme financed by the Commission (14).
            
         
               (52)
            
            
               In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the Solomon Islands, it could be established, pursuant to Article 31(3) and (5) of the IUU Regulation, that the Solomon Islands have failed to discharge their duties under international law as coastal and market State in respect of cooperation and enforcement efforts.
            
         3.3.   Failure to implement international rules (Article 31(6) of the IUU Regulation)
   
   
               (53)
            
            
               The Solomon Islands have ratified the UNCLOS and the UNFSA. The Solomon Islands are a contracting party to WCPFC. The Solomon Islands are party to the FFA Convention and to the PNA concerning cooperation in the management of fisheries of common interest.
            
         
               (54)
            
            
               The Commission analysed all the information deemed relevant with respect to the status of the Solomon Islands as a contracting party of the WCPFC.
            
         
               (55)
            
            
               The Commission also analysed any information deemed relevant with respect to the Solomon Islands’ agreement to apply conservation and management measures adopted by the WCPFC.
            
         
               (56)
            
            
               On the basis of information provided by the Solomon Islands on the situation of tuna fishing activities in their waters, catches in the Solomon Islands’ EEZ tuna stocks accounted in 2012 to 3,5 % of the Western and Central Pacific Ocean catch (15). That represents a decrease of 50 % from the years 2010 and 2011.
            
         
               (57)
            
            
               On the basis of the figures presented in recital 56 it appears that the Solomon Islands manage important global tuna resources and thus have the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, which should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery.
            
         
               (58)
            
            
               In that respect, it is noted that in breach of those obligations and recommendations, the Solomon Islands’ legal framework does not ensure efficient and effective management of vessels operating in waters under their jurisdiction. Furthermore, the legal framework does not contain clear and transparent provisions setting out applicable conservation and management measures for all types of waters under the Solomon Islands’ jurisdiction or where these can be found there are no clear and transparent procedures setting how their implementation should be ensured. Those aspects are further analysed in recitals 59 to 75.
            
         
               (59)
            
            
               Clear evidence of the inadequacy of the Solomon Islands’ legal framework can be found in the way the Islands manage tuna resources. The Solomon Islands explained that the existing ‘Solomon Islands National Tuna Management and Development Plan’ has been only been partially implemented and is consequently due to be replaced by a new plan.
            
         
               (60)
            
            
               The new Tuna Management Plan draft submitted to the Commission in November 2013 provides the legal framework for management of tuna resources and applies to all Solomon Islands waters from 3 nautical miles including archipelagic ones. However, this is merely a general principles document. During the Commission’s visit in February 2014, the Solomon Islands agreed to review the draft to reflect the reality of their fishing operations, activities and industry. The Solomon Islands stated that the new Plan would include sub-regional conservation and management measures, license regimes and conditions, TAC limits, zonal management for archipelagic waters and EEZs, reference points and harvest control rules.
            
         
               (61)
            
            
               In any case, the fact is that the existing Plan is obsolete and hence in breach of the obligations set out in Articles 61(2) to (5), 62(1) and Article 64 of the UNCLOS concerning optimum utilisation of resources through proper conservation and management measures.
            
         
               (62)
            
            
               Another aspect of the regulatory deficiency is the absence of clear conservation and management measures adopted by the Solomon Islands, on the basis of the best scientific advice and in accordance with their obligations under UNCLOS, UNFSA and WCPFC, in relation to all the waters under their national jurisdiction, including the archipelagic waters. Indeed, it was established in February 2014 that conservation and management rules lack transparency and clarity (as developed in recitals 63 to 68) and appear neither compatible nor based on best scientific advice (as developed in recitals 69 to 75).
            
         
               (63)
            
            
               Waters under the Solomon Islands’ jurisdiction are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under jurisdiction of the Solomon Islands.
            
         
               (64)
            
            
               The Solomon Islands however informed the Commission that it considers that waters under their national jurisdiction (territorial sea, archipelagic waters, EEZ) are not covered by the WCPFC Convention, even though the WCPFC delegated implementation of its conservation and management measures to its contracting parties. Also, while the PNA limit fishing effort with allocation of vessel days (Vessel Day Scheme (VDS)) applies in all EEZs of the parties to the agreement, this limitation does not apply to the Solomon Islands territorial and archipelagic waters.
            
         
               (65)
            
            
               Pursuant to Articles 61 to 64 of the UNCLOS, Articles 5, 7, 8, 9, 10 of the UNFSA and the overall objective and relevant rules in the WCPFC Convention (in particular Articles 2, 5, 7, 8) it is a clear obligation of a coastal State to adopt measures compatible to those applicable in the region and in the high seas to ensure the long term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilisation. The FAO Code of Conduct, in particular paragraphs 7(1), 7(2), 7(3) and 8(1), also recommends good practices to achieve those obligations.
            
         
               (66)
            
            
               Specific conditions for fishing vessels operating in the Solomon Islands waters are settled in the fishing licence, namely the fishing period, species of fish to take, areas to fish and other conditions. The Solomon Islands’ flagged vessels have access to archipelagic waters whereas the chartered flagged fleet and the bilateral/multilateral agreements fleet has access to purse seiner effort in the Solomon Islands’ EEZ as regulated and limited at regional level under VDS. For longliners or vessels operating in archipelagic waters conservation and management measures would be set on the fishing licence. For Pole and Line vessels conservation and management measures would be set on the fishing licence.
            
         
               (67)
            
            
               The lack of clarity and transparency of the applicable conservation and management rules and the actual use of fishing effort under VDS, in addition to the numerous existing arrangements with respect to access for fishing described in recital 66, compromises and undermines the possibility for effective implementation of efficient conservation and management of the fisheries resources of Solomon Islands.
            
         
               (68)
            
            
               In conclusion, no clear, transparent and compatible conservation and management rules exist for the Solomon Islands archipelagic waters, in breach of the obligations referred to in recital 65.
            
         
               (69)
            
            
               Pursuant to Article 61 of the UNCLOS, Articles 5 and 6 of the UNFSA, and Articles 5 and 6 of the WCPFC Convention, coastal States must determine the allowable catch of the living resources in their EEZ, based on the best scientific evidence available to it and on the basis of a precautionary approach; coastal States also have to ensure through proper conservation and management measures that living resources and stocks in the EEZ and other waters under their jurisdiction are not endangered by over-exploitation. The FAO Code of Conduct, in particular paragraphs 7(3), 7(4) and 7(5), recommends good practices to comply with those obligations.
            
         
               (70)
            
            
               As the Solomon Islands consider that WCPFC rules do not apply to waters under their jurisdiction, it is not entirely clear what data is collected and reported to WCPFC; this may not cover assessments of all Solomon Islands fisheries waters. Reports of the WCPFC Scientific Committee regularly raise the issue of data gaps. For example, in the report of its seventh session in 2011, the WCPFC Scientific Committee noted under point 89 some inconsistencies among fleets in the reporting of skipjack and yellowfin, bigeye tuna on purse-seine logsheets and considering the importance, for scientific purposes, of accurate purse-seine catch composition data, recommended that this problem be referred to the Technical and Compliance Committee (16). Under point 37, it emphasised the uncertainty in purse seine species composition, and urged contracting parties to continue improving estimates of purse seine composition data. In its eighth session, the WCPFC Scientific Committee again raised issues of data gaps and inconsistencies (17), in relation to catch and catch composition, commented on reporting obligations under chartering arrangements and issued management recommendations for improvement (18). It also addressed the lack of data submissions or weak data of some contracting parties, some of which are operating in waters under national jurisdiction of Solomon Islands.
            
         
               (71)
            
            
               The reports also state that observer coverage of 100 % as required by WCPFC is not yet achieved, and the Solomon Islands are not yet compliant with it, according to the annual report submitted to the Scientific Committee in 2012 (19).
            
         
               (72)
            
            
               The WCPFC Scientific Committee advised in its seventh meeting, that, if recent fishing practices for skipjack tuna continue, catch rate levels are likely to decline and catch should decrease as stock levels are fished down to Maximum Sustainable Yield level. Therefore, increases of fishing effort should be monitored (20).
            
         
               (73)
            
            
               The Solomon Islands do not apply any WCPFC conservation and management measures in their archipelagic waters and have only limited compatible measures in place. Taking into consideration the highly migratory and straddling nature of tuna resources and the importance of tuna stocks and fishing activities in Solomon Islands archipelagic waters, which are an important geographical spawning area for tuna species, this situation puts at stake any conservation effort on the tuna stock as a whole in the Pacific region. Therefore, the Solomon Islands do not ensure application of conservation and management measures in all waters under their jurisdiction in a manner compatible with requirements of WCPFC, and in accordance with the obligation to ensure that species under the jurisdiction of the coastal State are not endangered by over-exploitation.
            
         
               (74)
            
            
               The Commission also assessed any act or omission by Solomon Islands that may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures.
            
         
               (75)
            
            
               In that respect, neither the Tuna Management Plan in force nor the ‘Solomon Islands Tuna Management and Development Plan’ draft establish clear objectives to limit the number of licences and the total allowable catch. The Commission considers therefore that the lack of conservation and management measures undermines compliance by the Solomon Islands with their international obligations. As tuna is a straddling and highly migratory stock, conservation and management measures have to be consistent and compatible in the entire area of migration to be effective and sustainable, this being also the overall objective of the WCPFC Convention.
            
         
               (76)
            
            
               In view of the situation explained in this Section and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the Solomon Islands, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that Solomon Islands have failed to discharge their duties under international law with respect to international rules, regulations and conservation and management measures.
            
         3.4.   Specific constraints of developing countries
   
   
               (77)
            
            
               Taking into account the ranking of the Solomon Islands as a low human development country as a least developed countries (as noted in recital 50), the Commission analysed if the information gathered could be linked with its specific constraints as a developing country.
            
         
               (78)
            
            
               It should be noted that the notification of Solomon Islands as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010. The Solomon Islands confirmed, as Article 20(1) of IUU Regulation states, that they have national arrangements in place for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by their fishing vessels.
            
         
               (79)
            
            
               Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of the Solomon Islands derived from their level of development cannot justify an absence of specific provisions in the national legal framework referring to international instruments to combat, deter and eliminate IUU fishing activities. Furthermore, those constraints cannot justify the Solomon Islands’ failure to establish a sanctions system for infringements of international management and conservation measures.
            
         
               (80)
            
            
               It is also noted that the Union has already funded a specific technical assistance action in the Solomon Islands with respect to the fight against IUU fishing (21) and it is currently continuing providing technical assistance to the country through specific capacity building programme.
            
         
               (81)
            
            
               In view of the situation explained in this Section and on the basis of all factual elements gathered by the Commission as well as the statements made by the Solomon Islands, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status of Solomon Islands fisheries governance may be impaired by their level of development. However, account taken of the nature of the established shortcomings of the Solomon Islands, assistance provided by the Union and actions taken to rectify the situation, the development level of that country cannot fully excuse or otherwise justify its overall performance as flag or coastal State with respect to fisheries and the insufficiency of its action to prevent, deter and eliminate IUU fishing.
            
         4.   CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY
   
   
               (82)
            
            
               In view of the conclusions reached with regard to the failure of the Solomon Islands to discharge their duties under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified by the Commission as a non-cooperating third countries in fighting IUU fishing.
            
         
               (83)
            
            
               In accordance with Article 32(1) of the IUU Regulation, the Commission should notify the Solomon Islands of the possibility of being identified as a non-cooperating third country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to the Solomon Islands. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.
            
         
               (84)
            
            
               Furthermore, the notification to the Solomon Islands of the possibility of being identified as a country which the Commission considers to be non-cooperating for the purposes of this Decision does neither preclude nor automatically entail any subsequent step taken by the Commission or the Council for the purpose of the identification and the establishment of a list of non-cooperating countries,
            
         HAS DECIDED AS FOLLOWS:
   Sole Article
   The Solomon Islands shall be notified of the possibility of being identified by the Commission as a non-cooperating third country in fighting illegal, unreported and unregulated fishing.
   
      Done at Brussels, 12 December 2014.
      
         
            For the Commission
         
         Karmenu VELLA
         
            Member of the Commission
         
      
   
   
      (1)  OJ L 286, 29.10.2008, p. 1.
   
      (2)  http://www.ffa.int/
   
      (3)  Nauru Agreement (http://www.ffa.int/node/93#attachments).
   
      (4)  WCPFC Scientific Committee Ninth Regular Session, 6-14 August 2013, Pohnpei, Federates States of Micronesia, Annual Report to the Commission Part 1: Information on Fisheries Research and Statistics, Solomon Islands, WCPFC-SC9-AR/CCM-21 (http://www.wcpfc.int/system/files/AR-CCM-21-Solomon-Islands-AR-Part-1.pdf).
   
      (5)  International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing, Food and Agriculture Organization of the United Nations, 2001.
   
      (6)  Code of Conduct for responsible fisheries, Food and Agriculture Organization of the United Nations, 1995.
   
      (7)  Articles 22-27 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p. 1) and Article 67(1)(a) and Articles 72 and 75 of Commission Regulation (EU) No 1063/2010 of 18 November 2010 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ L 307, 23.11.2010, p. 1).
   
      (8)  Voluntary guidelines on flag state performance, Food and Agriculture Organization of the United Nations, 2014.
   
      (9)  http://www.pmc.gov.sb/content/fisheries-act-outdated
   
      (10)  Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, done at Honolulu, 5 September 2000 (http://www.wcpfc.int/doc/convention-conservation-and-management-highly-migratory-fish-stocks-western-and-central-pacific).
   
      (11)  Information retrieved from http://hdr.undp.org/en/statistics
   
      (12)  Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (OJ L 378, 27.12.2006, p. 41).
   
      (13)  http://www.oecd.org/dac/stats/daclistofodarecipients.htm
   
      (14)  Accompanying developing countries in complying with the Implementation of Regulation (EC) No 1005/2008 on Illegal, Unreported and Unregulated (IUU) Fishing, EuropeAid/129609/C/SER/Multi.
   
      (15)  WCPFC Scientific Committee Eighth Regular Session, WCPFC SC8-AR/CCM-21.
   
      (16)  Summary report of the WCPFC Scientific Committee, Seventh Regular Session, Pohnpei, Federated States of Micronesia 9–17 August 2011 (http://www.wcpfc.int/node/2896).
   
      (17)  Summary report of the WCPFC Scientific Committee Eighth Regular Session 7-15 August 2012 (http://www.wcpfc.int/node/4587), section 3.1.
   
      (18)  Summary report of the WCPFC Scientific Committee Eighth Regular Session, points 69-71.
   
      (19)  WCPFC Scientific Committee Eighth Regular Session, WCPFC-SC8-AR/CCM-21.
   
      (20)  Summary report of the WCPFC Scientific Committee, Seventh Regular Session, points 35 and 36.
   
      (21)  See footnote 14.