CELEX: 32014D1217(02)
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 countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing

17.12.2014   
            
            
               EN
            
            
               Official Journal of the European Union
            
            
               C 453/5
            
         COMMISSION DECISION
   of 12 December 2014
   notifying a third country that the Commission considers as possible of being identified as non-cooperating third countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing
   (2014/C 453/04)
   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 SAINT VINCENT AND THE GRENADINES
   
   
               (9)
            
            
               From 19 to 20 May 2014, the Commission visited Saint Vincent and the Grenadines in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.
            
         
               (10)
            
            
               The visit sought to verify information concerning Saint Vincent and the Grenadines' arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures to be complied with by its fishing vessels and the measures taken by Saint Vincent and the Grenadines to implement its obligations in the fight against IUU fishing.
            
         
               (11)
            
            
               The final report of the visit was sent to Saint Vincent and the Grenadines on 13 June 2014.
            
         
               (12)
            
            
               To this day, Saint Vincent and the Grenadines has not provided to the Commission its comments on that final report.
            
         
               (13)
            
            
               Saint Vincent and the Grenadines is a contracting party to the International Commission for the Conservation of Atlantic Tuna (ICCAT). Saint Vincent and the Grenadines 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).
            
         
               (14)
            
            
               In order to evaluate Saint Vincent and the Grenadines' compliance with its international obligations as flag, port, coastal or market State set out in the international agreements referred to in recital (13) and established by the Regional Fisheries Management Organisation (RFMO) referred to in that recital, the Commission sought and analysed all the information it deemed necessary for the purpose of such an exercise.
            
         
               (15)
            
            
               In that regard, the Commission used information derived from available data published by RFMOs, in this case ICCAT, as well as publicly available information.
            
         3.   POSSIBILITY OF SAINT VINCENT AND THE GRENADINES OF BEING IDENTIFIED AS A NON-COOPERATING THIRD COUNTRY
   
   
               (16)
            
            
               Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Saint Vincent and the Grenadines 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)
   
   
               (17)
            
            
               With respect to Saint Vincent and the Grenadines-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 Saint Vincent and the Grenadines-flagged vessels exists that would enable the Commission to analyse the performance of Saint Vincent and the Grenadines with respect to recurring IUU fishing activities in accordance with Article 31(4)(a) of the IUU Regulation.
            
         
               (18)
            
            
               In the absence of information and evidence as explained in recital (17) it is concluded, pursuant to Article 31(3) and 31(4)(a), that there are no elements to evaluate the compliance of Saint Vincent and the Grenadines' action to prevent, deter and eliminate IUU fishing, with its duties under international law as a flag State in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or by its nationals.
            
         3.2   Failure to cooperate and to enforce (Article 31(5) of the IUU Regulation)
   
   
               (19)
            
            
               The Commission analysed whether Saint Vincent and the Grenadines 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.
            
         
               (20)
            
            
               In that respect, Saint Vincent and the Grenadines fisheries has not provided to the Commission any information or reply on how it will address the deficiencies in its fisheries management system identified during the Commission's visit.
            
         
               (21)
            
            
               In addition, in the context of the overall assessment of the fulfilment of Saint Vincent and the Grenadines' duties to discharge its obligations as flag State, the Commission also analysed whether Saint Vincent and the Grenadines cooperates with other States in the fight against IUU fishing.
            
         
               (22)
            
            
               The Commission established during its visit that Saint Vincent and the Grenadines was not in a position to follow up the activities of its fishing fleet. Saint Vincent and the Grenadines submitted that all its fishing vessels operating in the ICCAT area land or tranship exclusively in Trinidad and Tobago Ports (Port of Spain and Chaguarams). However, that assertion could not be corroborated due to the fact that Saint Vincent and the Grenadines does not use landing and transhipment declarations. Based on the informal cooperation with Trinidad and Tobago, Saint Vincent and the Grenadines receives the data from the log-books of its fishing vessels only once a year for the whole year. Saint Vincent and the Grenadines does not receive or request any inspection reports from Trinidad and Tobago. In addition to the lack of the landing and transhipment declarations, the information from the logbooks cannot be cross-checked, since the fishing vessels are not equipped with the Vessels Monitoring System (VMS). Saint Vincent and the Grenadines is effectively unaware of the destination and use of those fish products.
            
         
               (23)
            
            
               According to Articles 63 and 64 of UNCLOS, coastal and flag States are to cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of the UNFSA further develop the obligation of States to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. That is further specified in points 28 and 51 of the IPOA IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States.
            
         
               (24)
            
            
               The importance of efficient cooperation mechanisms has to be appraised in the context of the informal cooperation between Saint Vincent and the Grenadines and Trinidad and Tobago. As described in the recital (22) and according to the information provided by Saint Vincent and the Grenadines authorities during the Commission's visit in May 2014, all their fishing vessels operating in the ICCAT area land or tranship exclusively in Trinidad and Tobago ports. However, the cooperation between Saint Vincent and the Grenadines and Trinidad and Tobago is of an unofficial nature and limited to minimum exchange of information. Saint Vincent and the Grenadines receives only once a year from Trinidad and Tobago the logbooks of its fishing vessels for the full 12 months period. Saint Vincent and the Grenadines lacks landing and transhipment declarations. In addition, the Saint Vincent and the Grenadines authorities do not receive or request any inspection reports from Trinidad and Tobago. Trinidad and Tobago requested Saint Vincent and the Grenadines to validate ICCAT statistical catch documents for Bigeye and Swordfish for fish stemming from Saint Vincent and the Grenadines flagged vessels landing in Trinidad and Tobago ports. However, from the publicly available information (ICCAT website) retrieved on 20 May 2014, Saint Vincent and the Grenadines is not registered with the ICCAT Secretariat, as requested by the ICCAT Recommendations 01-21 and 01-22, for the validation of such catch documents. That situation reveals a serious lack of effective cooperation between third countries and RFMOs that may render ineffective any potential action to investigate, provide feedback or follow up to any potential IUU fishing activities.
            
         
               (25)
            
            
               With respect to effective enforcement measures, Article 19(2) of the UNFSA establishes that sanctions applicable in respect of violations are to be adequate in severity to be effective in securing compliance and to discourage violations wherever they occur and are to deprive offenders of the benefits accruing from their illegal activities. In that respect, although Saint Vincent and the Grenadines does have a legal framework in place for the management of its fishing vessels (in particular the High Seas Act 2001 and High Seas Fishing Regulation 2003), it lacks clear definitions of IUU fishing and serious infringements. In addition, that legal framework has not been properly enforced since its entry into force in 2001 and 2003 respectively. According to the information provided by Saint Vincent and the Grenadines in May 2014, it has not imposed sanctions provided by that legal framework in the last 10 years. That may render the legal framework ineffective and undermine the deterrence of the system.
            
         
               (26)
            
            
               Saint Vincent and the Grenadines also failed to take into consideration the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing, through the point of landing, to final destination, including by implementing the VMS in accordance with the relevant national, regional and international standards. That includes the requirement for vessels under its jurisdiction to carry VMS on board.
            
         
               (27)
            
            
               In May 2014 during its visit to Saint Vincent and the Grenadines, the Commission observed that there was no Fishing Monitoring Centre (FMC) as such, to control the Saint Vincent and the Grenadines long distance fishing fleet. In addition, the national VMS management system has been shut down since at least 2012 following the breakdown of the previous system. For that reason, since 2012 the Saint Vincent and the Grenadines fishing vessels are not sending the VMS signal to the Saint Vincent and the Grenadines FMC. The Saint Vincent and the Grenadines FMC does not receive any information on the positions of its long distance fleet by VMS or any other positioning system and as a consequence, Saint Vincent and the Grenadines cannot monitor and control its long distance fleet. In particular, it cannot monitor the activities of its long distance fleet operating on the high seas, in third countries waters or calling in third countries ports. It cannot confirm whether a given vessel is in or out of a given geographical area and if a given vessel when fishing in a given area (Exclusive Economic Zone or RFMO) is actually authorised to operate there. Furthermore, Saint Vincent and the Grenadines cannot monitor whether its vessels follow the seasonal closed areas as established by ICCAT.
            
         
               (28)
            
            
               The facts described in recitals (22), (26) to (27) indicate that Saint Vincent and the Grenadines failed to fulfil the conditions of Article 94 of the UNCLOS which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. The described behaviour of Saint Vincent and the Grenadines with respect to its vessels is also in breach with Article 18(3) UNFSA which stipulates measures to be taken by a State in respect of vessels flying its flag. Furthermore, Saint Vincent and the Grenadines does not fulfil its compliance and enforcement obligations as a flag State stipulated in Article 19 of the UNFSA since it has failed to demonstrate that it acted and operated in accordance with the detailed rules laid down in that Article.
            
         
               (29)
            
            
               With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the possibility of assessing those aspects is equally compromised by the described lack of clarity and transparency. As a consequence of such shortcomings, it is not possible to establish, in a reliable way, the potential dimension of IUU fishing related activities. It is however an acknowledged fact that lack of transparency combined with the lack of effective controls encourages illegal behaviour.
            
         
               (30)
            
            
               With respect to the existing capacity of Saint Vincent and the Grenadines, it should be noted that according to the United Nations Human Development Index (2), Saint Vincent and the Grenadines is considered as a high human development country (91nd in 187 countries). In the Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council (3) Saint Vincent and the Grenadines is listed in the category of Upper Middle Income Countries and Territories, in line with the list of aid recipients of the Organisation for Economic Cooperation and Development's (OECD) Development Assistance Committee (DAC) recipients of 1 January 2013 (4). Account taken of Saint Vincent and the Grenadines position, it is not considered necessary to analyse its existing capacity. That is because the level of development of Saint Vincent and the Grenadines, as demonstrated in this recital, cannot be considered as a factor undermining its capacity to cooperate with other countries and pursue enforcement actions.
            
         
               (31)
            
            
               Despite the analysis under recital (30) it is also noted that, on the basis of information derived from the Commission's visit in May 2014, it cannot be considered that Saint Vincent and the Grenadines lacks financial resources. Rather Saint Vincent and the Grenadines lacks the necessary legal and administrative environment and empowerments to ensure the efficient and effective performance of its international duties as flag, coastal, market and port State.
            
         
               (32)
            
            
               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 country, it could be established, pursuant to Article 31(3) and 31(5) of the IUU Regulation, that Saint Vincent and the Grenadines has failed to discharge its duties under international law as flag State in respect of cooperation and enforcement efforts.
            
         3.3   Failure to implement international rules (Article 31(6) of the IUU Regulation)
   
   
               (33)
            
            
               Saint Vincent and the Grenadines has ratified the UNCLOS and the UNFSA. Saint Vincent and the Grenadines is contracting party to ICCAT.
            
         
               (34)
            
            
               The Commission analysed all information deemed relevant with respect to the status of Saint Vincent and the Grenadines as contracting party of ICCAT.
            
         
               (35)
            
            
               In 2011 ICCAT issued a letter of identification to Saint Vincent and the Grenadines maintaining the identification of the country under the ICCAT Recommendation 06-13 concerning trade measures (5). It was stated that Saint Vincent and the Grenadines had not fully and effectively complied with its obligations in accordance with the ICCAT Recommendation 05-09 on compliance with statistical reporting obligations. In the same letter it was stated that Saint Vincent and the Grenadines did not provide all necessary data and reports by the set deadlines. Specifically, the following reporting deficiencies were noted: 1) some data submitted after the deadline; 2) Task II (catches sizes) data were not submitted; 3) some figures for the compliance tables were submitted after the deadline; 4) internal actions report for vessels greater than 20 meters was submitted after the deadline; 5) information on the large-scale tuna long line vessel management standard was submitted after the deadline.
            
         
               (36)
            
            
               In 2012 ICCAT lifted the identification of Saint Vincent and the Grenadines under its Recommendation 06-13 but issued a letter of concern since Saint Vincent and the Grenadines had not fully and effectively complied with its obligations in accordance with the ICCAT Recommendation 05-09 (6). The following deficiencies for Saint Vincent and the Grenadines were noted: 1) annual report submitted late; 2) Task I (fleet characteristics) data on fleet characteristics were not submitted; 3) Task II (catches size) frequency data were not submitted; 4) compliance tables were submitted after the deadline; 5) information on the large-scale tuna long line vessel management, action for vessels more than 20 meters report were submitted late. In addition, ICCAT requested Saint Vincent and the Grenadines to review its data collection and reporting procedures with regard to ICCAT requirements.
            
         
               (37)
            
            
               In the letter of concern issued in 2013, ICCAT again expressed its concern that Saint Vincent and the Grenadines had not fully and effectively complied with its obligations in accordance with the ICCAT Recommendation 05-09 (7). The following deficiencies for Saint Vincent and the Grenadines were noted: 1) Task I data on fleet characteristics were not submitted; 2) compliance tables were submitted after the deadline of 15 September 2012; 3) ICCAT did not receive a reply to its letter of concern of 2012. ICCAT requested Saint Vincent and the Grenadines to clarify which ICCAT requirements were applicable to Saint Vincent and the Grenadines and to review its data collection and reporting procedures with regard to ICCAT requirements. In addition, ICCAT expressed its concern about possible illegal at-sea transhipments of by-catches of ICCAT species and urged Saint Vincent and the Grenadines to investigate these activities and report back to ICCAT.
            
         
               (38)
            
            
               The Commission also analysed information available from ICCAT on the compliance of Saint Vincent and the Grenadines with ICCAT rules and reporting obligations. For this the Commission used the ICCAT 2012 Compliance Summary Tables as well as the ICCAT 2013 Compliance Summary Tables (8). In addition to the deficiencies highlighted in recitals (36) to (37) potential issues of non-compliance in 2013 of the conservation and management measures were noted, namely of the Recommendation 11-02: no swordfish fisheries development or management plan was submitted. In relation to the quotas and catch limits, potential issues of non-compliance in 2013 were highlighted: compliance tables received late and clarification as regards Southern Albacore catches were requested.
            
         
               (39)
            
            
               Furthermore, it was revealed during the Commission's visit in May 2014 that Saint Vincent and the Grenadines Registry is settled in three registering offices located outside Saint Vincent and the Grenadines. Those offices are not interconnected and do not have access to their respective information. Moreover, the Ministry for Agriculture, Forestry and Fisheries has not direct access to the registries. The low level of control by the Saint Vincent and the Grenadines authorities to the registration process and the lack of relevant requirements such as those established in point 14 of the FAO Guidelines for Flag State Performance has as a result that the authorities do not ensure that vessels flying the flag of Saint Vincent and the Grenadines have a genuine link with the country. The lack of such genuine link between the State and the vessels that are registered in its registry is in breach of the conditions set out for the nationality of ships under Article 91 of the UNCLOS. This conclusion is further confirmed by the International Transport Workers' Federation (ITF) which considers Saint Vincent and the Grenadines as a flag of convenience (9).
            
         
               (40)
            
            
               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 country, it could be established, pursuant to Article 31(3) and (6) of the IUU Regulation, that Saint Vincent and the Grenadines failed to discharge its duties under international law with respect to international rules, regulations and conservation and management measures.
            
         3.4.   Specific constraints of developing countries
   
   
               (41)
            
            
               It is recalled that according to the United Nations Human Development Index (10), Saint Vincent and the Grenadines is considered as a high human development country (91st in 187 countries). It is also recalled that, according to Regulation (EC) No 1905/2006, Saint Vincent and the Grenadines is listed in the category of Upper Middle Income Countries and Territories.
            
         
               (42)
            
            
               Account taken of that ranking Saint Vincent and the Grenadines cannot be considered as a country having specific constraints directly derived from its level of development. No corroborating evidence could be established to suggest that the failure of Saint Vincent and the Grenadines to discharge its duties under international law is the result of lacking development. In the same manner, no concrete evidence exists to correlate the revealed shortcomings in respect of the monitoring, control and surveillance of fishing activities with the lack of capacities and infrastructure. In this respect it is noted that the Saint Vincent and the Grenadines authorities have not revoked any argument on development constraints.
            
         
               (43)
            
            
               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 country, it could be established, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Saint Vincent and the Grenadines with respect to fisheries are not impaired by its level of development.
            
         4.   CONCLUSION ON THE POSSIBILITY OF IDENTIFICATION AS A NON-COOPERATING THIRD COUNTRY
   
   
               (44)
            
            
               In view of the conclusions reached with regard to the failure of Saint Vincent and the Grenadines to discharge its 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.
            
         
               (45)
            
            
               In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Saint Vincent and the Grenadines 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 Saint Vincent and the Grenadines. 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.
            
         
               (46)
            
            
               Furthermore, the notification to Saint Vincent and the Grenadines 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
   Saint Vincent and the Grenadines 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)  Information retrieved from http://hdr.undp.org/en/statistics
   
      (3)  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).
   
      (4)  DAC List of ODA Recipients (http://www.oecd.org/dac/stats/daclistofodarecipients.htm).
   
      (5)  ICCAT letter, 18 January 2011, ICCAT Circular No 168.
   
      (6)  ICCAT letter, 21 February 2012, ICCAT Circular No 639.
   
      (7)  ICCAT letter, 11 February 2013, ICCAT Circular No 612.
   
      (8)  ICCAT, COC Reports November 2012 and 2013; Doc.No. ICCAT COC 2012-11 and Doc.No. ICCAT COC 2013-18.
   
      (9)  http://www.itfglobal.org/flags-convenience/flags-convenien-183.cfm
   
      (10)  Information retrieved from http://hdr.undp.org/en/statistics