27.11.2013   

EN

Official Journal of the European Union

C 346/1

27.11.2013   

EN

Official Journal of the European Union

C 346/2

(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 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 countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any emergency measures.

(3)

Pursuant to Article 31 of the IUU Regulation, the European Commission may identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country may be identified as a non-cooperating third country if it fails to discharge the duties incumbent upon it under international law as flag, port, coastal or market State, to take action to prevent, deter and eliminate IUU fishing.

(4)

The identification of non-cooperating third countries shall be based on the review of all information as set out under Article 31(2) of the IUU Regulation.

(5)

In accordance with Article 33 of the IUU Regulation, the Council may establish a list of non-cooperating countries. The measures set out in Article 38 of the IUU Regulation apply to those countries

(6)

Pursuant to Article 20(1) of the IUU Regulation, third-country flag states are requested to notify the Commission of their arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by their fishing vessels.

(7)

Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with third countries in areas pertaining to the implementation of that Regulation.

(8)

In accordance with Article 32 of the IUU Regulation, with the Commission Decision of 15 November 2012, the Commission notified eight third countries that the Commission considered as possible of being identified as non-cooperating countries pursuant to Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing.

(9)

In its Decision of 15 November 2012 the Commission included the information concerning the essential facts and considerations underlying such preliminary identification.

(10)

Also on 15 November 2012, the Commission notified the eight third countries with separate letters of the fact that it was considering the possibility of identifying them as non-cooperating third countries. The Decision of 15 November 2012 was attached to those letters.

(11)

The Commission highlighted, in these letters, that in order to avoid being identified and proposed for formal listing as a non-cooperating third country as foreseen respectively in Articles 31 and 33 of the IUU Regulation, the third countries concerned were invited to establish and implement, in close cooperation with the Commission, an action plan to rectify the shortcomings identified in the Commission Decision of 15 November 2012. A timely and effective implementation of the action plan by the concerned countries could have avoided them being identified as non-cooperating third countries and proposed for final listing.

(12)

As a consequence, the Commission invited the eight third countries concerned: (i) to take all necessary measures to implement the actions contained in the action plans suggested by the Commission; (ii) to assess the implementation of the actions contained in the action plans suggested by the Commission; (iii) to send every six months detailed reports to the Commission assessing the implementation of each action as regards, inter alia, their individual and/or overall effectiveness in ensuring a fully compliant fisheries control system.

(13)

The eight third countries concerned were given the opportunity to respond in writing on issues explicitly indicated in the Commission Decision as well as on other relevant information, allowing them to submit evidence in order to refute or complete the facts invoked in the Decision of 15 November 2012 or to adopt, as appropriate, a plan of action to improve and measures taken to rectify the situation. The eight countries were guaranteed of their right to ask for, or to provide, additional information.

(14)

Therefore, by its Decision and letters of 15 November 2012, the Commission opened a dialogue process with the eight third countries and highlighted that it considered a period of 6 months as being in principle sufficient for settling this matter.

(15)

The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by the eight countries following the Commission Decision of 15 November 2012 were considered and taken into account. The eight countries were kept informed either orally or in writing on the Commission's considerations.

(16)

As explained in this Commission Implementing Decision, Belize, the Kingdom of Cambodia and the Republic of Guinea failed to refute facts invoked by the Commission or to address them in a plan of action.

(17)

This Commission Implementing Decision identifying Belize, the Kingdom of Cambodia and the Republic of Guinea as third countries that the Commission considers as non-cooperating in fighting illegal, unreported and unregulated fishing is made in the context of the implementation of the IUU Regulation and is the result of investigation and dialogue process which were carried out in line with the substantive and procedural requirements laid out in the IUU Regulation, which referes, inter alia, to the third states' duties incumbent upon them under international law as flag, port, coastal or market State to prevent, deter and eliminate IUU fishing.

(18)

The Commission Implementing Decision to identify Belize, the Kingdom of Cambodia and the Republic of Guinea as third countries that the Commission considers as non-cooperating third countries in fighting illegal, unreported and unregulated fishing entails, where appropriate, the consequences stated in Article 18(1)(g) of the IUU Regulation.

(19)

On 15 November 2012, the Commission notified Belize with a Commission Decision pursuant to the provisions of Article 32 of the IUU Regulation that it considered the possibility of identifying Belize as a non-cooperating third country (2).

(20)

The Commission invited Belize to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Commission Decision.

(21)

The Commission identified in the suggested action plan several failures to implement international law obligations, linked in particular to the adoption of an adequate legal framework, lack of an adequate and efficient monitoring, control and inspection scheme, lack of a deterrent sanctioning system, and of a proper implementation of the catch certification scheme. The identified shortcomings relate, more generally to the compliance with international obligations including Regional Fisheries Management Organisations (RFMOs) recommendations and resolutions and conditions for registration of vessels according to international law. 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-UN) has also been identified. However, the lack of compliance with non-binding recommendations and resolutions has been considered only as supporting evidence and not as a basis for the identification.

(22)

On 20 November 2012, the Commission met with the Belizean authorities in Brussels to clarify the state of play and future steps following the Commission Decision of 15 November 2012.

(23)

Belize accepted, through its submission of 10 December 2012, to initiate discussions with the Commission and expressed its wish to agree mutually upon a road map.

(24)

Belize submitted written representations on 28 December 2012, 29 January 2013 and 13 February 2013.

(25)

With the letter of 24 January 2013, the Commission requested Belize to provide updated information on the key areas of the suggested action plan.

(26)

On 26 February 2013, the Belizean authorities submitted the following documents: (i) cover letter and explanatory letter; (ii) update on Belize's strategic action plan; (iii) updated information on key areas of the suggested action plan; (iv) draft high seas fishing inspection schedule in ports; (v) list of infringements and sanctions in 2011 and 2012; (vi) statistical data on catch certificates; (vii) list of vessels licensed to operate on the High Seas; (viii) list of vessels authorised to operate in the International Commission for the Conservation of Atlantic Tuna (ICCAT), Inter-American Tropical Tuna Commission (IATTC), Indian Ocean Tuna Commission (IOTC) and Western and Central Pacific Fisheries Commission (WCPFC) areas; (ix) list of other vessels authorised to operate under the Belizean flag.

(27)

Technical consultations between the Commission and Belize took place on 5 March 2013 in Brussels. During that meeting, the Belizean authorities submitted to the Commission a presentation on the measures adopted to manage and control its High Seas Fishing Fleet.

(28)

With the letter of 14 March 2013, the Commission provided Belize with the detailed and updated overview of the remaining shortcomings following the technical consultations held in Brussels on 5 March 2013, and invited Belize to examine the Commission's observations in relation to the proposed action plan and to provide all additional information and documentation that Belize deemed relevant.

(29)

Belize submitted additional written representation on 30 May 2013 including the following documents: (i) table on Belize's progress in accordance with the Commission's suggested action plan; (ii) draft National Plan of Action to prevent, deter and eliminate IUU fishing (dating from 2005); (iii) draft high seas sanction regulation; (iv) overview of the national observer programme; (v) list of Belize flagged vessels (as of 20 May 2013); (vi) report of a training workshop on biological data collection for tuna-like species; (vii) the major features of the new vessel monitoring and ‘e-log’ system.

(30)

On 24 July 2013, Belize enquired on the status of the proceedings. The Commission responded to Belize with a letter of 5 August 2013.

(31)

The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by Belize following the Commission Decision of 15 November 2012 were considered and taken into account while Belize was kept informed either orally or in writing on the Commission's considerations.

(32)

In the light of the elements gathered, as shown in Section 3 of the present Decision, the Commission believes that the areas of concern and shortcomings as described in the Commission Decision of 15 November 2012 have not been addressed sufficiently by Belize. Moreover, the measures suggested in the accompanying action plan have not been fully implemented either.

(33)

Pursuant to Article 31(3) of the IUU Regulation the Commission hereby reviews the compliance of Belize with its international obligations as flag, port, coastal or market State, in line with the findings in the Commission Decision of 15 November 2012 and with relevant information provided thereon by Belize, with the proposed plan of action as well as with the measures taken to rectify the situation. For the purpose of this review the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

(34)

As highlighted in recital 20 of the Commission Decision of 15 November 2012 the Commission established on the basis of information retrieved from several RFMOs IUU vessel lists that a number of IUU vessels in these lists carried the flag of Belize after their inclusion in the RFMO IUU vessel lists (3). Those vessels were as of 15 November 2012: Goidau Ruey No 1, Orca, Reymar 6, Sunny Jane, Tching Ye No 6 and Wen Teng No 688.

(35)

The Commission established on the basis of the information retrieved from several RFMOs IUU vessels lists that currently eight IUU vessels in these lists carried the flag of Belize after their inclusion in the RFMO IUU vessel list (4). Those vessels are: Amorinn, Chia Hao No 66, Orca, Ray, Reymar 6, Tchaw, Tching Ye No 6 and Wen Teng No 688. Vessels Amorinn, Ray, Tchaw are listed in Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) and South East Atlantic Fisheries Organisation (SEAFO), vessels Orca, Reymar 6, Tching Ye No 6 and Wen Teng No 688 in IATTC while vessel Chia Hao No 66 is listed in both IATTC and ICCAT. In addition, the Commission established that according to the SEAFO list of IUU vessels the vessel Ray is flying the flag of Belize.

(36)

As highlighted in Section 3.1 of the Commission Decision of 15 November 2012, the existence of a number of IUU vessels in the RFMOs IUU list that carried the flag of Belize after their inclusion of these lists is a clear indication that Belize has failed to undertake its flag state responsibilities under international law.

(37)

Moreover, since the Commission Decision of 15 November 2012 the number of the vessels that carried the flag of Belize after their inclusion in the RFMO IUU vessels list has increased to eight. Thus, Belize has failed to exercise its responsibilities effectively and to comply with RFMO conservation and management measures which highlight the failure of Belize to fulfil its obligations under Article 94(2)(b) of the United Nations Convention on the Law of the Sea (UNCLOS) stipulating that a flag state assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. It also demonstrates the failure of Belize to ensure that fishing vessels entitled to fly its flag do not engage in or support IUU fishing, which is not in line with the recommendation of point 34 of the IPOA IUU stipulating that states should ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing.

(38)

In addition, pursuant to Article 18(1) and (2) of the 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), the flag state is responsible vis-à-vis its vessels operating on the high seas. It is recalled that UNFSA regulates matters pertaining to the conservation and management of straddling fishing stocks and highly migratory fish stocks. As highlighted in the recital (35) of the present Decision, five IUU vessels are listed in the RMFOs IUU list as managing such type of fish stocks. The Commission considers that the existence of five IUU vessels in the IATTC and ICCAT IUU list that carried the flag of Belize after their inclusion in these lists is a clear indication that Belize has failed to undertake its flag state responsibilities under international law. Furthermore, the existence of five IUU vessels in the IATTC and ICCAT RFMOs IUU list that carried the flag of Belize after their inclusion in these lists also highlights the failure of Belize to fulfil its obligations under Article 19(1) and (2) UNFSA. This situation is also in contravention with the provisions of Article 20 UNFSA which set out obligations of states to investigate, cooperate with each other and sanction IUU vessels activities since Belize has failed to fulfil for these five IUU vessels its obligations under international law with respect to international cooperation and enforcement.

(39)

Thus the existence of eight IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists highlights the failure of Belize to fulfil its flag state obligations. Indeed, recognised IUU fishing vessels undermine conservation and management of living resources. In such a way, Belize does not act in accordance with Article 118 UNCLOS, which stipulates that states shall cooperate with each other in the conservation and management of living resources in the areas of the high seas.

(40)

The failure of Belize to fulfil its compliance and enforcement obligations infringes also Article III(8) of FAO Compliance Agreement stating that each party shall take enforcement measures in respect of fishing vessels entitles to fly its flag which act in contravention of the provision of the Food and Agriculture Organisation of the United Nations Compliance Agreement (FAO Compliance Agreement), including, where appropriate, making the contravention of such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall be of sufficient gravity as to be effective in securing compliance with the requirements of the FAO Compliance Agreement and to deprive offenders of the benefits accruing from their illegal activities.

(41)

Against a background of the above verified IUU fishing by Belizean flagged vessels, as explained in recitals 22 and 23 of the Commission Decision of 15 November 2012 Belize did not ensure adequate sanctions, discourage repetition of violations and deprive offenders of the benefits accruing from their illegal activities. It also was lacking an adequate administrative system for investigations, and monitoring of its vessels. This lack of appropriate measures had not been addressed at the moment of adopting the present Decision.

(42)

Following the adoption of the Commission Decision of 15 November 2012 Belize submitted documentation as mentioned in recitals (26) and (29) of the present Decision.

(43)

The Commission found that adequate measures in respect of recurrent IUU fishing could not be effectively taken by Belize due to the shortcomings of its legal framework. It thus suggested, in the action plan, a revision of the legal framework aimed at ensuring the conservation and management of living resources in the High Seas. However, the draft Aquatic Living Resources Bill presented by Belize has neither been adopted nor even been submitted to the House of Representatives. The draft includes in particular provisions on: conservation and management of fisheries resources; requirements and conditions on issuing of licences; fishing activities inside and outside the Exclusive Economic Zone (EEZ) of Belize; monitoring, control and surveillance; the record of the fishing vessels as well as general provisions on sanctions. However, the draft Aquatic Living Resources Bill is only a general act and in order to be fully operational it foresees in its Part XXI that several regulation may be necessary to give effect to the provisions of this Act and for the due administration thereof. It stipulates that such regulations might be needed in particular for the following areas: licensing and regulation of fisheries; conditions or circumstances on chartering Belizean flagged fishing vessels; installation and use of mobile transceiver units on an individual vessel or a category of vessels authorised to fish under this Act; the appointment, maintenance of and procedures for agents appointed to receive and respond to process pursuant to this Act; setting out the requirements for providing details of the beneficial ownership of vessels for the catching, loading, landing, handling, transhipping, transporting, possession and disposal of fish; prescribing offences against the regulations and penalties for such offences. From the above mentioned elements, following the adoption of the Commission Decision of 15 November 2012, the Belizean authorities have submitted only the draft High Seas Sanction Regulation. The pertinent draft Aquatic Living Resources Bill is in preparation already since 2011 without any further concrete development materialising since then. The draft has not yet been adopted and therefore is not legally binding. In addition, the competent Belizean authorities have not provided a concrete timetable for the enactment and implementation of this draft. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(44)

The draft National Plan of Action of Belize to fight IUU dates back to 2005 and has not yet been adopted, which is not in line with points 25, 26 and 27 of IPOA IUU requesting states to develop national plan of action against IUU fishing. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(45)

The Commission found therefore that, in addition to the recurrences of IUU fishing by vessels flying its flag, Belize is not enforcing a deterrent sanction system. The current binding legislation (5) foresees the following sanctions: written warning, fine, cancellation of the status and/or document and suspension or revocation of authority. The level of the maximum fine (USD 50 000) is not sufficiently deterrent and thus not line Article 19(2) UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the benefits accruing from their illegal activities.

(46)

As described in the recital (43) of the present Decision Belize has submitted a new draft High Seas Sanction Regulation. Since this draft is a subsidiary legislation to the draft Aquatic Living Resources Bill it will not come into force before the adoption of the latter. In addition, the draft High Seas Sanction Regulation foresees merely administrative sanctions. It foresees in its scope the imposition of fines; however, it does not regulate clearly the amount of such fines. The sanctioning procedure does not foresee clear deadlines for carrying out the examination of alleged infringements. There if no clear cut division of responsibilities among the competent Belizean authorities in the implementation of the proposed sanctioning scheme. The lack of a clear definition of the amount of the fines is an indication that Belize, if the draft is adopted, would not be able to fulfil the requirements of Article 19(2) UNFSA. The lack of the clear definition of the amount of the fines, if the draft is adopted, would be furthermore not in line with the recommendations in point 21 of the IPOA IUU which advises states to ensure that sanctions for IUU fishing by vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. Furthermore, the draft High Seas Sanction Regulation does not create a catalogue of sanctions for IUU activities that might be committed by Belizean flagged vessels in the third countries waters.

(47)

Consequently, the actions undertaken by Belize in light of its duties as flag state are insufficient to comply with the provisions of Articles 94 and 118 UNCLOS, Articles 18, 19 and 20 UNFSA and Article III(8) of the FAO Compliance Agreement.

(48)

In view of recitals 21 to 27 of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it 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 and has not taken sufficient action to counter documented and recurring IUU fishing by vessels previously flying its flag.

(49)

As described in the recitals (31) to (36) of the Commission Decision of 15 November 2012 the Commission analysed whether Belize has taken effective enforcement measures in respect to operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(50)

As described in the recital (33) of the Commission Decision of 15 November 2012 Belize did not ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under its jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

(51)

As explained in the recitals (45) to (46) of the present Decision, following the adoption of the Commission Decision of 15 November 2012, Belize has not put in place a deterrent sanctioning system. The current catalogue of sanctions is not in line with Article 19(2) UNFSA which stipulates, inter alia, that sanctions should be adequate in severity and deprive offenders of the benefits accruing from their illegal activities.

(52)

Available evidence still confirms that Belize has not fulfilled its obligations under international law with respect to effective enforcement measures. In this respect, as explained in the recitals (35) to (40) of the present Decision, eight IUU vessels in the RFMOs IUU lists carried the flag of Belize after their inclusion in these lists. The existence of such IUU vessels highlights the failure of Belize to honour its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 18(1) and (2) UNFSA.

(53)

In addition, as explained in the recital (32) of the Commission Decision of 15 November 2012, the existence of a number of IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists constitutes corroborating evidence of the lack of Belize to exercise its full jurisdiction over its fishing vessels. At the present stage, following the Commission Decision of 15 November 2012, the number of the IUU vessels in the RFMOs IUU lists that carried the flag of Belize after their inclusion in these lists increased to eight. Thus, Belize failed to demonstrate that it fulfils the conditions of Article 94(2)(b) 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.

(54)

As highlighted in the recital (35) of the Commission Decision of 15 November 2012, the level of development of Belize cannot be considered as a factor undermining the capacity of the competent authorities to cooperate with other countries and pursue enforcement actions. The evaluation of the specific constraints on the development is further described in the recitals (70) to (72) of the present Decision.

(55)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Belizean-flagged vessels until 2013. The Commission has taken into account also the developments following the Commission Decision of 15 November 2012.

(56)

Consequently, the actions undertaken by Belize in light of its duties as flag state are insufficient to comply with the provisions of Articles 94(2)(b) UNCLOS and Article 18 and 19 of the UNSFA.

(57)

In view of the recitals (31) to (36) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and 31(5)(b), (c) and (d) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it under international law as flag state in respect of cooperation and enforcement efforts.

(58)

As described in the recitals (39) to (63) of the Commission Decision of 15 November 2012 the Commission analysed any information deemed relevant with respect to the status of Belize as Contracting Party of IOTC and ICCAT and as Cooperating non-Member of WCPFC. Since Belize has been a Cooperating non-Party of the North East Atlantic Fisheries Commission (NEAFC) until the end of 2011 the Commission has also analysed the information deemed relevant as regards that RFMO. In addition, the Commission carried out an analysis of the information deemed relevant with respect to the status of Belize as Contracting Party of IOTC and ICCAT following the Commission Decision of 15 November 2012.

(59)

It is recalled that since the Commission Decision of 15 November 2012 ICCAT issued a letter of Concern in 2013 (6) to Belize. The ICCAT Secretariat expressed its concern on the following issues: on the need for further investigation on possible unreported or unauthorised transhipments of ICCAT species taken as by-catch; on the functionality of the new VMS system put in place by Belize; and on the need for further information on quota management for South Swordfish. In this respect, the ICCAT Secretariat highlighted that it will recommended appropriate actions to address data deficiencies and failure to submit information required to fully implement the ICCAT Recommendations on those issues.

(60)

The Commission also analysed information available from ICCAT on the compliance of Belize with ICCAT rules and reporting obligations. For this, the Commission used the ICCAT 2012 Compliance Summary Tables (7). According to the information available, Belize was identified for the shortcomings regarding the transhipments at sea outside of the transhipment observer programme as well as for shortcomings related to VMS transmissions. Furthermore, Belize has not yet finalised the plan for improving data collection for sharks on a species specific level.

(61)

According to information derived from the IOTC Compliance Report from 2013 (8), Belize is still not compliant or only partially compliant for the year 2012 as regards several Resolutions adopted by IOTC. In particular, as regards IOTC Resolution 12/13 for long-liners on legal and administrative measures to implement the area closure, Belize has not provided information on the 2012/2013 closure period. As regards IOTC Resolution 10/08 on the list of active vessels, Belize has not provided the mandatory report of vessels in the IOTC area during 2012. Regarding to the Resolution 07/02 on list of authorised vessels of 24 m in length overall or more, Belize is partially compliant, since some mandatory information, such as: operating port, gear type and some vessels with invalid authorisation is missing. As regards IOTC Resolution 06/03 on the adoption of a Vessel Monitoring System (VMS), Belize has not provided the mandatory VMS report on the progress and implementation as required by this Resolution. Regarding the IOTC Resolution 10/02 on the mandatory statistical requirements Belize has not reported nominal catch, catch and effort and size frequency data to the standard required by this Resolution. As regards the IOTC Resolution 05/05 on the submission of data regarding sharks, Belize is only partly compliant, since no size data has been provided. As regards the Resolution 12/05 on transhipments carried out at sea, Belize has not provided the mandatory report. As regards the Resolution 11/04 on the observers, Belize has not implemented the observer programme as required by this Resolution. In particular, Belize has not established the observer scheme for the mandatory 5 % at sea for the vessels longer than 24 m and is not in compliance with the observer reporting obligation. As regards the IOTC Resolution 01/06 concerning the statistical document programme Belize has not provided information on institution and personal authorised to validate statistical documents of Bigeye tuna.

(62)

The performance of Belize with respect to ICCAT obligations as explained in recitals (59) and (60) of the present Decision as well as its failure to provide to IOTC the information referred to in the recital (61) of the present Decision indicates the failure of Belize to fulfil its obligations as flag state laid down in UNCLOS and UNFSA. In particular, the failure to provide timely information on statistics, VMS, catch and effort, transhipment at sea, observers programme undermines the ability of Belize to fulfil its obligations under Articles 117 and 118 UNCLOS which stipulate the duties of State to adopt measure for their respective nationals for the conservation of living resources of the high seas and to cooperate on conservation and management measures for living resources in the areas of the high seas.

(63)

As described in the recital (46) of the Commission Decision of 15 November 2012, a number of elements were revealed during the mission to Belize in November 2010, in particular as regards the operational abilities of VMS and the observer programme. Other elements of concern, as regards the inspection scheme and supervision of transhipment were highlighted in recital (51) of the Commission Decision of 15 November 2012 at the occasion of the IOTC Compliance Report for the year 2010. To this vein, the information submitted by Belizean authorities in relation to the creation of a reliable inspection scheme, observer programme, unloading reports, supervision of transhipment and monitoring of landing catches revealed that the authorities have not ensured effective and efficient control and monitoring of the Belizean flagged vessels in line with international obligations. In particular, Belize was invited to develop and implement a national monitoring, control and surveillance scheme, logbook and catch reporting system, landing declaration scheme, inspection and control of landing scheme, designated port scheme and an observer programme. The Belizean authorities submitted information on the national observer programme and the major features of the new vessel monitoring and e-log system. However, these documents depict only a preparatory stage of the process and do not contain a detailed timetable for the entry into force and proper implementation. The draft High Seas fishing inspection schedule in ports presented by Belize on 5 March 2013 is in a preparatory phase and requires extensive further development before making any impact in practice. The national observer programme is still under development. The current inspection scheme does not ensure a proper coverage of Belizean flagged fleet operating in the High Seas because of inadequate means of inspection. In this respect it is recalled that Belize has serious problems in reporting data to various RFMOs which undermines the capacity of the country to exercise its obligations as flag state.

(64)

As described in the recitals 41, 42, 51 and 52 of the Commission Decision of November 2012 and recital 62 of the present Decision, Belize failed to fulfil its recording and reporting obligations. Following the Commission Decision of 15 November 2012, Belize submitted that the issue of recording was not of a substantial nature, without disputing, however, the existence of the RFMOs, compliance findings. In this respect, it is noted that there are discrepancies between the official RFMOs, documentation and the statements by Belize. In particular, the Commission found that the Belizean electronic catch reporting system is only under development and requires further testing. Indeed, the information provided by Belize did not reveal any change in the compliance of this country with the RFMOs’ compliance schemes indicated in the Commission Decision of 15 November 2012. Belize has not supported its statements by relevant documentation that would allow the Commission to disregard the existing RFMOs, compliance reports which, as stated already in this section, are still extremely critical on the performance of Belize to implement international rules. No progress has been made in this respect since the Commission Decision on 15 November 2012.

(65)

In relation to the Vessel Monitoring System (VMS), as described in the recitals 48 and 52 of the Commission Decision of 15 November 2012 and the recital (63) of the present Decision, the Commission recalls various problems highlighted by several WCPFC, IOTC and ICCAT. Following the Commission Decision of 15 November 2012, Belize stated that it is in the process of upgrading its VMS. However, the new fish information system and e-log system is only under development and not yet operational. Moreover, Belize does not have an operational Fishing Monitoring Centre (FMC). As for the compliance with the RFMOs, VMS requirements, there are discrepancies between the official RFMOs, documentation and Belize's statements. Belize contested the findings of the RFMOs. However, information provided by Belize did not reveal any change in the performance of this country under RFMOs, compliance scheme. Belize has not supported its statement by relevant documentation that would allow the Commission to disregard the existing RFMOs compliance reports. Therefore, Belize does not fulfil the conditions stipulated in the Article 18(3)(g) UNFSA in the view of the information gathered on the monitoring, control and surveillance abilities of the Belizean authorities, in particular on the its operational ability and functionality.

(66)

The elements mentioned in Section 3.3 of the present Decision demonstrate that the performance of Belize is in breach of the requirements of Article 18(3) UNFSA.

(67)

As highlighted in the recital (63) of the Commission Decision of 15 November 2012, Belize keeps an International Merchant Marine Registry (IMMARBE) responsible for vessel registration which does not ensure that vessels flying the flag of Belize have a genuine link with the country. Belize submitted that it is exercising control of its fishing fleet irrespectively of the fact that IMMARBE is managed by a private entity. From publicly available information it was revealed that the Government of Belize, as of June 2013 (9), assumed operation control the IMMARBE. Although the nationalisation of the IMMARBE has been decided by Belize as of 13 July 2013, the Commission has not received any submission from Belize that would provide additional elements proving that the genuine link between Belize and the ships registered under its flag exist. Such situation is still not in line with the obligations set in Article 91 UNCLOS.

(68)

Consequently, the actions undertaken by Belize in light of its duties as flag state are insufficient to comply with the provisions of Articles 91, 117, 118 UNCLOS and Article 18(3) of the UNSFA.

(69)

In view of the recitals (39) to (63) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and (6) of the IUU Regulation, that Belize has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(70)

It is recalled that, according to the United Nations Human Development Index (10), Belize is considered as a medium human development country (96th in 186 countries) and according to Regulation (EC) No 1905/2006, Belize is listed in the category of lower middle income countries.

(71)

As described in the recital (66) of the Commission Decision of 15 November 2012 no corroborating evidence has been found to suggest that the failure of Belize to discharge the duties incumbent upon it under international law is the result of lacking development. After 15 November 2012 no additional concrete evidence has been presented to reveal that the identified shortcomings are a consequence of the lack of capacity and administrative infrastructure.

(72)

In view of the recitals (65) to (66) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Belize with respect to fisheries are not impaired by its level of development.

(73)

On 15 November 2012, the Commission notified the Kingdom of Cambodia (Cambodia) with a Commission Decision pursuant to the provisions of Article 32 of the IUU Regulation that it considered the possibility of identifying Cambodia as a non-cooperating third country (11).

(74)

The Commission invited Cambodia to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Commission Decision.

(75)

The Commission identified in the suggested action plan several failures to implement international law obligations, linked in particular to the adoption of an adequate legal framework, lack of an adequate and efficient monitoring, control and inspection scheme, lack of a deterrent sanctioning system, and of a proper implementation of the catch certification scheme. The identified shortcomings relate, more generally to the compliance with international obligations and conditions for registration of vessels according to international law. 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-UN) has also been identified. However, the lack of compliance with non-binding recommendations and resolutions has been considered only as supporting evidence and not as a basis for the identification.

(76)

On 22 November 2012, the Commission met with the Cambodian authorities in Brussels to clarify the state of play and future steps following the Commission Decision of 15 November 2012.

(77)

Cambodia replied to the letter of 15 November 2012 on 7 February 2013 containing a list of measures taken in the fight against IUU fishing. Cambodia stated that it has finalised the Strategic Planning Framework for Fisheries 2010-2019, including the Cambodian Code of Conduct for Responsible Fisheries, a core document for control and development of maritime fisheries resources and for elimination of illegal fishing, the Fishing Vessel Logbook for maritime fishing and the Proclamation on technical Requirements of Fishing Vessels Management. Cambodia also stated that it has strengthened and expanded the monitoring, control and surveillance system and it has collaborated with Member States of Regional Plan of Action (RPOA) on implementation of RPOA-IUU Fishing. In the letter of 7 February 2013, Cambodia stated that it needed more time to fully meet its commitments due to its shortage of human and financial resources.

(78)

The Commission made several attempts to contact Cambodia in order to advance the discussions on the suggested action plan. A second letter was sent by the Commission on 29 April 2013 recalling the request made by the Commission on 15 November 2012 and asking for documents in support of actions already taken by Cambodia.

(79)

A video conference was organised on 24 May 2013 with the representatives of Cambodia. During the video-conference the representatives of Cambodia made the following verbal representations: the vessel registration system was changed in 2003 when the register moved from a Singapore-based private entity to a Korean-based private entity. Cambodia highlighted its commitment to respect all international and national regulations. The tool used by Cambodia to combat IUU fishing would be the deregistration of a vessel presumed to be involved in IUU fishing. Several IUU vessels would have been deregistered. Also, if a vessel is on an IUU list, it cannot be registered by Cambodia. Cambodia stated that it did not register new fishing vessels as of 2010.

(80)

During the video-conference of 24 May 2013, the Commission highlighted the findings in the Commission Decision of 15 November 2012, reminded the Cambodian authorities of the urgency of addressing the established shortcomings and submitting documents in support of the verbal and written representations made by Cambodia and explained the possible implications in case of failure in addressing the established shortcomings.

(81)

With a letter of 14 June 2013, Cambodia provided additional elements on its current policies against IUU fishing and a Plan of Action against IUU fishing applied by its Flag State Administration, the International Ship Registry of Cambodia. These were in line with the verbal representations made during the video-conference of 24 May 2013. Cambodia provided also a list of fishing vessels and fish carrier/reefer carrier/refrigerated cargo under the Cambodian flag as of May 2013.

(82)

Cambodia did not provide indications as to when the current policies against IUU fishing and the commitments under the Plan of Action on IUU fishing will be transposed into binding legal rules and will be materialised and implemented by the Cambodian authorities.

(83)

The Commission did not receive any more detailed information on the actions undertaken by Cambodia to fight IUU fishing.

(84)

The Commission continued to seek and verify all information it deemed necessary. The oral and written comments submitted by Cambodia following the Commission Decision of 15 November 2012 were considered and taken into account while Cambodia was kept informed either orally or in writing on the Commission's considerations.

(85)

In the light of the elements gathered, as shown in the following section, the Commission believes that the areas of concern and shortcomings as described in the Commission Decision of 15 November 2012 have not been addressed by Cambodia. Moreover, the measures suggested in the accompanying action plan have not been fully implemented either.

(86)

Pursuant to Article 31(3) of the IUU Regulation, the Commission hereby reviews the compliance of Cambodia with its international obligations as flag, port, coastal or market State in line with the findings in the Commission Decision of 15 November 2012 and with the proposed plan of action, as further elaborated with the relevant information provided by Cambodia. For the purpose of this review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

(87)

As highlighted in the recitals (75) and (76) of the Commission Decision of 15 November 2012, the Commission established on the basis of information retrieved from RFMOs and its own work that a number of vessels were sighted fishing illegally while flying the flag of Cambodia.

(88)

As highlighted in the recital (75) of the Commission Decision of 15 November 2012, the Commission established on the basis of information retrieved from RFMO IUU vessel lists that several incidents of IUU activities of vessels flying the Cambodian flag or having a Cambodian fishing licence have occurred. The fishing vessel Draco-1 (current name (12): Shaanxi Henan 33; the name in November 2012 as mentioned in the recital (75) of the Commission Decision of 15 November 2012: Xiong Nu Baru 33 was sighted fishing illegally in the CCAMLR area in January 2010 (13) and in April 2010 (14) while flying the flag of Cambodia. In addition, the fishing vessel Trosky (current name (15): Huiqunan; the name in November 2012 as mentioned in the recital (75) of the Commission Decision of 15 November 2012: Yangzi Hua 44 was sighted fishing illegally in the CCAMLR area in April 2010 (16) while flying the flag of Cambodia.

(89)

As highlighted in Section 5.1 of the Commission Decision of 15 November 2012, the existence of a number of IUU vessels in the RFMOs IUU list that carried the flag of Cambodia after their inclusion of these lists is a clear indication that Cambodia has failed to undertake its flag State responsibilities under international law.

(90)

Also, as described in the recital (76) of the Commission Decision of 15 November 2012, the Commission has gathered evidence of Cambodian non-compliance with conservation and management measures, required by the international law. Namely, the Commission has gathered factual evidence, through Union catch certificates, of repetitive infringements by a Cambodian vessel of ICCAT conservation and management measures that lead to their being classified as IUU fishing activities. Those infringements referred to a Cambodian carrier vessel that received fish at sea from purse-seiners. In accordance with ICCAT Recommendation 06-11, purse-seiners are not allowed to tranship tuna species at sea within the ICCAT area. In addition, the Cambodian carrier vessel was not registered under the ICCAT Registry of carrier vessels entitled to operate within the ICCAT area as provided for in Section 3 of ICCAT Recommendation 06-11. No actions on this matter were taken by the Cambodian authorities. The performance of Cambodia is in contravention of the requirements of Article 94(1) and (2) UNCLOS stipulating that every State shall effectively exercise its jurisdiction and control over ships flying its flag. Cambodia did not ensure adequate sanctions, discourage repetition of violations and deprive offenders of the benefits accruing from their illegal activity which is not in line with the recommendation in point 21 of IPOA IUU.

(91)

Against a background of the above verified IUU fishing by Cambodian flagged vessels, and despite the requests in that sense in the action plan, no documentation whatsoever was presented by Cambodia in support of actions undertaken on the presumed illegal fishing activities that would demonstrate the existence of adequate sanctions, discouraging repetition of violations and depriving offenders of the benefits accruing from their illegal activities. Cambodia only submitted that its policy towards IUU fishing is the cancellation of ship registration and revocation of any licence, certificate, permit or document issued to the vessel under its flag. Cambodia also lacks an adequate administrative system for investigations, and monitoring of its vessels. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(92)

In relation to the revision of the legal framework in order to ensure conservation and management of living resources in the High Seas, Cambodia stated that it finalised a Strategic Planning Framework for Fisheries 2010-2019, including Cambodian Code of Conduct for Responsible fisheries. However, Cambodian submission did not confirm that any concrete measures were put in place in order to address and remedy the shortcomings highlighted in the Commission Decision of 15 November 2012. The documents submitted by Cambodia were of general nature and did not contain a concrete plan of action aiming to ensure conservation and management of living resources in the High Seas. They consisted of general principles and referred exclusively to fisheries in Cambodia (inland and marine coastal waters). Also, a description of the fisheries sector in Cambodia was included as well as the mandate of the Fisheries Administration, which is very general and does not enter into specific fisheries management. The Cambodian submission included an analysis that confirmed the weaknesses of limited governance, legal and regulatory environment in some area, lack of demarcation and weak enforcement, limited skills, standards and guidance material. In addition, despite the Commission’s requests, Cambodia did not submit any documentation showing the intention to amend the legal framework further to the adoption of the above stated Strategic Planning Framework and Code of Conduct for Responsible Fisheries.

(93)

In relation to the legal framework pertaining to registration of fishing vessels, no documentation was submitted by Cambodia. Cambodia stated that has finalised a proclamation on Technical Order of Fishing Vessel Management which relates to safety at sea issues.

(94)

No documentation was submitted by Cambodia in relation to the revision of the legal framework in order to put in force a deterrent sanction system.

(95)

Cambodia did not submit the information on the points highlighted in the action plan in relation to the revision of the legal framework necessary to allow the authorities to require information and to investigate into the activities of the operators, registered owners and beneficial owners of the fishing vessels flying the flag of Cambodia.

(96)

The performance of Cambodia in the matters explained in this section of the present Decision pertaining to actions aiming at addressing recurrent IUU fishing activities are not in line with the basic responsibilities of flag States as set out under Article 94(2)(b) UNCLOS stipulating that flag States shall assume responsibility under its internal law over each ship flying its flag and its master, officers and crew in respect of administrative, technical and social matters concerning the ship. The submissions of Cambodia do not allow the Commission to consider that any demonstrable improvement has been made by Cambodia to its legal framework since the adoption of the Decision of 15 November 2012.

(97)

Consequently, the actions undertaken by Cambodia in light of its duties as flag State are insufficient to comply with the provisions of Article 94 UNCLOS. It is recalled that it is immaterial whether Cambodia has actually ratified UNCLOS since the provisions of UNCLOS on the navigation in the High Seas (Articles 86 to 115 UNCLOS) have been recognised as customary international law. These provisions indeed codify pre-existing rules of customary international law and take over almost literally the wording of the Convention on the High Seas and the Convention on the Territorial Sea and the Contiguous Zone, which Cambodia has respectively ratified and acceded to.

(98)

In view of the recitals (76) to (79) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it 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 and has not taken sufficient action to counter documented and recurring IUU fishing by vessels previously flying its flag.

(99)

As described in the recitals (83) to (86) of the Commission Decision of 15 November 2012, the Commission analysed whether Cambodia has taken effective enforcement measures in respect to operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(100)

As described in the recital (84) of the Commission Decision of 15 November 2012, Cambodia did not ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

(101)

Cambodia made verbal representations on the video-conference of 24 May 2013 that it deregistered vessels presumed to have carried out IUU fishing activities. In the letter of 14 June 2013, Cambodia stated that where a vessel is found to be engaged in illegal fishing, including being IUU RFMO list, immediate and decisive disciplinary actions should be taken by the International Ship Registry of Cambodia, including cancellation of the ship’s registration and revocation of any licence, certificate, permit or document issued to the vessel under the flag of Cambodia. The Commission considers that the simple deregistration of a vessel without any additional fine or other sanction as a measure of inadequate severity. A simple deregistration does not effectively deprive the offender of the benefits accruing from its illegal activities. In addition, it does not hinder the offender to reflag such vessel to a flag of convenience. Furthermore, despite the Commission’s requests, no documentation was submitted by Cambodia in support of these verbal and written representations. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(102)

As explained in the recitals (91) to (95) of the present Decision, following the adoption of the Commission Decision of 15 November 2012, Cambodia has not put in place a deterrent sanctioning system. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(103)

As highlighted in the recital (86) of the Commission Decision of 15 November 2012 Cambodia has capacity problems to cooperate with other countries and pursue enforcement actions which are linked with lack of legal and administrative environment and empowerment for the authorities to perform their duties. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(104)

In relation to the training of Cambodian observers and landing officers, no documentation was submitted by Cambodia. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(105)

The performance of Cambodia in the matters explained in this section of the present Decision pertaining to actions aiming at cooperation and enforcement are not in line with the basic responsibilities of flag States as set out under Article 94(1) and (2) UNCLOS stipulating that every State shall effectively exercise its jurisdiction and control over ships flying its flag as it highlights the failure of Cambodia to honour its responsibilities vis-à-vis its vessels operating on the high seas.

(106)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Cambodian-flagged vessels until 2013. The Commission has taken into account also the developments following the Commission Decision of 15 November 2012.

(107)

Consequently, the actions undertaken by Cambodia in light of its duties as flag State are insufficient to comply with the provisions of Article 94 UNCLOS.

(108)

In view of the recitals (83) to (86) of the Commission Decision of 15 November 2012, and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and 31(5)(b), (c) and (d) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

(109)

As described in the recitals (89) to (96) of the Commission Decision of 15 November 2012, the Commission analysed information deemed relevant from available data published by RFMOs, in particular ICCAT and the Commission for the Conservation of the Antarctic Marine Living Resources (CCAMLR). In addition, the Commission carried out an analysis on the information deemed relevant with respect to the status of Cambodia as a non-contracting Party of ICCAT and CCAMLR following the Commission Decision of 15 November 2012.

(110)

It is recalled that since the Commission Decision of 15 November 2012 ICCAT agreed in the ICCAT Report for the biennial period 2012-2013 (17) that the identification of Cambodia should be maintained as no reply to the ICCAT Commission's letters has been received. In the absence of a reply from Cambodia providing the requested information relating to conservation and management measures compliance, ICCAT decided to maintain Cambodia's identification in 2013. Indeed, the ICCAT Committee reviewed the available information to assess the cooperation of Non-Contracting Parties and further to the letter of identification sent to Cambodia by the Commission, no correspondence has been received by the Secretariat. In this respect, it was decided to maintain the identification of Cambodia until further information is received. This situation is a confirmation of the failure of Cambodia to fulfil any type of flag State obligations relating to management and conservation measures provided for by UNCLOS.

(111)

According to information derived from the CCAMRL (18) related to catch documentation scheme, Cambodia as a non-contracting not cooperating with CCAMLR may have been involved in the harvest and/or trade of toothfish in 2012. During 2012 CCAMRL formally approached Cambodia to seek its cooperation and to provide data regarding the trade of toothfish. However, since then no information has been provided. This situation is a confirmation of the failure of Cambodia to fulfil any type of flag State obligations relating to management and conservation measures provided for by UNCLOS.

(112)

In relation to the creation of a reliable inspection scheme, observer programme, unloading reports, supervision of transhipment and monitoring of landing catches, despite the requests in the action plan, no documentation was submitted by Cambodia. Cambodia stated that it has finalised the Fishing Vessel Logbook for maritime fishing, as well as it has strengthened and expanded the monitoring, control and surveillance system ‘MCS system’ without further precisions. Cambodia submitted only the template of the Fishing Vessel Logbook. No other relevant documentation was submitted to the Commission. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(113)

In relation to the reporting and recording obligations, no documentation was submitted by Cambodia despite the requests in the action plan. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(114)

In relation to the Vessel Monitoring System (VMS), Cambodia stated the fish carriers under the flag of Cambodia would be, in principle, equipped with system on board as necessary, including VMS. No documentation was submitted by Cambodia in support of this written representation despite the requests in the action plan. No progress has been made in this respect since the Commission Decision of 15 November 2012.

(115)

By acting in the way described in recitals 112 to 114, Cambodia failed to demonstrate that it fulfils the conditions of Article 94(2)(b) UNCLOS which stipulates that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its masters, officers and crew in respect of administrative, technical and social matters of the ship.

(116)

As highlighted in the recital (96) of the Commission Decision of 15 November 2012, Cambodia keeps an International Ship Registry responsible for vessel registration, that has functions as the Flag State Administration of Cambodia, as stated in Cambodia's submission of 14 June 2013. The International Ship Registry of Cambodia is located outside Cambodia and it does not ensure that vessels flying its flag have a genuine link with the country. No documentation was submitted by Cambodia showing a change in the fishing vessel registration system, apart from a verbal and written representation that new registration of fishing vessel under the flag of Cambodia is prohibited from 2010. The letter of 14 June 2013 indicates that Cambodia has 6 fishing vessels and 78 fish carrier/reefer carrier/refrigerated cargo vessels in its vessel register in May 2013. Publicly available information (19) would show, however, that 150 fishing vessels are registered under the Cambodian flag. This fleet represents a significant fishing capacity not submitted to an effective monitoring system, which cannot permit Cambodia to fully ensure its flag State responsibilities. The Commission has not received any submission from Cambodia that would provide additional elements proving that the genuine link between Cambodia and the ships registered under its flag exist. Such situation is still not in line with the obligations set in Article 91 UNCLOS.

(117)

Consequently, the actions undertaken by Cambodia in light of its duties as flag State are insufficient to comply with the provisions of Articles 91 and 94 UNCLOS.

(118)

In view of the recitals (83) to (86) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012, the Commission takes the view, pursuant to Article 31(3) and (6) of the IUU Regulation, that Cambodia has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations as well as conservation and management measures.

(119)

As described in the recital (99) of the Commission Decision of 15 November 2012, Cambodia is considered as a medium human development country (138th in 186 countries) (20) and according to Regulation (EC) No 1905/2006, Cambodia is listed in the category of least developed countries.

(120)

As described in the recital (100) of the Commission Decision of 15 November 2012 no corroborating evidence has been found to suggest that the failure of Cambodia to discharge the duties incumbent upon it under international law is the result of lacking development. With the letter of 7 February 2013, Cambodia stated that it needs more time to fully meet EU-required obligations due to its shortage of human and financial resources. No additional concrete evidence has been presented to reveal that the identified shortcomings are a consequence of the lack of capacities and infrastructure.

(121)

In view of the recitals (99) to (100) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012, the Commission takes the view, pursuant to Article 31(7) of the IUU Regulation, that the development status and overall performance of Cambodia with respect to fisheries are not impaired by its level of development.

(122)

On 15 November 2012, the Commission notified the Republic of Guinea (Guinea) with a Commission Decision pursuant to the provisions of Article 32 of the IUU Regulation that it considered the possibility of identifying Guinea as a non-cooperating third country (21).

(123)

The Commission invited Guinea to establish in close cooperation with its services an action plan to rectify the shortcomings identified in the Commission Decision.

(124)

The main shortcomings identified by the Commission in the suggested action plan were related to outstanding reforms necessary in order to ensure a sufficiently adequate and efficient monitoring of its fishing fleet, an effective implementation of national law and regulations on fisheries, enforcement of the rules by pursuing and sanctioning the IUU fishing activities detected, reinforcement of the means for inspection and surveillance, deterrent sanctioning system, fisheries policy consistent with administrative capacity in terms of control and surveillance. The identified shortcomings relate, more generally to the compliance with international obligations including RFMOs recommendations and resolutions and conditions for registration of vessels according to international law. However, the lack of compliance with non-binding recommendations and resolutions has been considered only as supporting evidence and not as a basis for the identification.

(125)

On 6 December 2012, the Commission held a meeting with the Guinean authorities in Brussels. The Commission replied to the questions of the Guinean authorities and commented the issues raised in the Commission Decision and the actions suggested in the action plan.

(126)

On 7 December 2012, Guinea submitted documents on a decision taken by the Minister of Fisheries and Aquaculture to dismiss a Guinean official linked with the delivery of forged Guinean licences to foreign vessels operating in the Guinean Exclusive Economic Zone (EEZ).

(127)

On 10 December 2012, Guinea provided an additional submission accepting to initiate the discussions with the Commission and requested the possibility to extend the deadline to reply to the notification of the Commission until 17 January 2013. Guinea submitted the following documents: (i) letter from the Minister of Economy and Finances; (ii) letter from the Minister of Fisheries and Aquaculture, with in annex a proposed action plan, an implementation budget and an implementation timetable.

(128)

On 10 January 2013, in order to complement its first representations, Guinea submitted the following documents: (i) letter of the Minister of Economy and Finances; (ii) letter of the Minister of Fisheries and Aquaculture, with in annex a proposed action plan, an implementation budget and an implementation timetable; (iii) letter of Minister of Fisheries and Aquaculture with in annex a memorandum on results of the investigations and actions taken related to delivery of forged Guinean licences to EU vessels operating in the Guinean Exclusive Economic Zone (EEZ).

(129)

On 22 January 2013, Guinea submitted additional information on the concrete measures envisaged to address the main issues identified: (i) decree of 18 June 2012 on the creation of a maritime prefecture; (ii) decree of 18 June 2012 on the nomination of a prefect; (iii) decree of 15 January 2013 on the creation and composition of the national boarding commission targeting non-compliant fishing vessels; (iv) documentation on the semaphore surveillance scheme; (v) report of the inter-ministerial sea committee meetings; (vi) report of a meeting of November 2012 on the national strategy for maritime security.

(130)

On 24 January 2013, the Commission accepted a meeting with the Guinean authorities in Brussels which requested a Memorandum on the main remaining issues to be addressed.

(131)

On 4 February 2013, the Commission replied to the request of Guinea by transmitting a letter to the Guinean authorities together with a Memorandum summarising the main issues to be addressed in line with the Decision of 15 November 2012 and the suggested action plan.

(132)

On 19 February 2013, the Commission met with the Guinean authorities in Brussels in order to organise the on-the-spot mission in Guinea from 26 February to 1 March 2013

(133)

The Commission conducted a mission to Guinea from 26 February to 1 March 2013 and visited all Guinean authorities concerned, in particular the Prime Minister, Minister of Economy and Finances, Minister of Fisheries and Aquaculture and Minister of Transports, Maritime Prefect and Special Adviser to the President of the Republic of Guinea, that were all kept informed on the progress of the situation in line with the Commission Decision of 15 November 2012 and the proposed action plan. In the course of this on-the-spot mission, the Guinean authorities were also in a position to make statements and provide all relevant documents to react to the Commission Decision of 15 November 2012 and to the Memorandum summarising the main issues to be addressed, transmitted on 4 February 2013.

(134)

On 26 February 2013, Guinea submitted the following documents: (i) process of development and implementation of the action plan and information on the use of funds stemming from the implementation of the fisheries agreement in 2009; (ii) list of vessels flagged permanently and temporarily to Guinea; (iii) list of foreign vessels holding a fishing licence in 2013, in application of a State agreement concluded between Guinea and a foreign country to grant access to the Guinean living resources in its EEZ or in the framework of private fishing licences delivered to foreign fishing vessels operating in the Guinean waters; (iv) replies on each point of the Memorandum communicated by the Commission on 4 February 2013; (v) list of sanctions applied to fishing vessels operating in Guinea EEZ in 2012 and 2013; (vi) scientific campaign report for 2012; (vii) detailed budget and implementation timetable for the action plan; (viii) Arrêté No A/2012/942 on the conditions to tranship in the Guinean waters; (ix) State agreement concluded between Guinea and the Republic of China for 2012-2013 granting access to Chinese vessels to Guinean waters under specific conditions.

(135)

On 1 March 2013, in order to keep the Guinean authorities informed of the assessment of the situation at this stage of the process, the Commission communicated on-the-spot written observations on the outstanding issues. The same document was officially sent by letter on 14 March 2013 to all relevant Guinean authorities.

(136)

On 6 March 2013, Guinea submitted a part of the documents requested during the on-the-spot mission as followed: (i) cover letter of the Director General of the Centre National de Surveillance et de Protection des Pêches; (ii) table on infractions and inspections conducted in 2011 and 2012; (iii) reports on infringements committed by foreign vessels in the Guinean EEZ; (iv) table on global catches and percentages of quantities for each type of fishery for 2012; (v) several observers reports.

(137)

On 1 April 2013, Guinea submitted additional elements in order to keep the Commission informed on the conditions under which EU vessels operate in the Guinean waters in 2013.

(138)

On 14 May 2013, Guinea submitted additional elements as followed: (i) replies to the written observations communicated by the Commission on 1 March 2013; (ii) a draft Decree on sanctions and accessories sanctions applicable to infringements; (iii) articles of association of a company authorised to represent foreign vessels in Guinea.

(139)

On 30 May 2013, the Commission accepted a meeting with the Guinean authorities in Brussels who provided an updated plan of action together with its level of implementation. As requested, the Commission informed Guinean authorities that a significant number of issues highlighted in the Commission Decision of 15 November 2012 had not been addressed yet and that actions suggested in the action plan had not been implemented yet.

(140)

On 16 July 2013, Guinea submitted the following documents: (i) the list of actions that Guinea envisages to take in relation to the Memorandum communicated by the Commission on 4 February 2013 together with the description of their level of implementation; (ii) copy of administrative Arrêté of 13 June 2013 creating a Comité de suivi-évaluation of the measures planned to be taken in relation with the Commission Decision of 15 November 2012; (iii) copy of the administrative decision of 1 July 2013 on the rules to be applied in terms of VMS tracking system on board Guinean fishing vessels and fishing vessels operating in the Guinean waters; (iv) copy of the administrative decision of 1 July 2013 creating a Comité de suivi-évaluation of the implementation of the Guinean Fisheries Management Plan; (v) copy of a letter of 27 June 2013 sent by the Fisheries Minister and calling for consultations with operators of the fisheries sector to apply a closed period on fishing activities ‘(période de repos biologique)’; (vi) copy of a letter of 15 May 2013 of the Minister of Fisheries and Aquaculture to reinforce cooperation with the Préfecture Maritime; (vii) draft revised Decree on new sanctions to be applied.

(141)

The Commission continued seeking and verifying all information it deemed necessary. The oral and written comments submitted by Guinea following the Commission Decision of 15 November 2012 were considered and, taken into account while Guinea was kept informed either orally or in writing on the Commission's considerations.

(142)

The Commission believes that the areas of concern and shortcomings as described in the Commission Decision of 15 November 2012 have not been addressed sufficiently by Guinea. Moreover, the measures suggested in the accompanying action plan have not been fully implemented either.

(143)

Pursuant to Article 31(3) of the IUU Regulation the Commission hereby reviews the compliance of Guinea with its international obligations as flag, port, coastal or market State in line with the findings in the Commission Decision of 15 November 2012 and with Guinea's relevant information provided thereon, with the proposed plan of action as well as with the measures taken to rectify the situation. For the purpose of this review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

(144)

As highlighted in the recitals (153) to (154) of the Commission Decision of 15 November 2012, the Commission established on the basis of information retrieved from several RFMOs IUU vessel lists that a number of IUU vessels in these lists carried the flag of Guinea after their inclusion in the RFMO IUU vessel lists (22). Those vessels were as of 15 November 2012 Daniaa (previous name: Carlos) and Maine.

(145)

In addition, the Commission established on the basis of information retrieved from RFMO IUU vessel lists (23) that one IUU vessel in the relevant IUU lists (RED, previously named KABOU) carried the flag of Guinea after its inclusion in these lists (24).

(146)

The Commission established on the basis of the information retrieved from several RFMOs IUU vessels list that currently two IUU vessels in these lists carried the flag of Guinea after their inclusion in the RFMO IUU vessel list (25). Those vessels are Daniaa and Maine.

(147)

As highlighted in Section 9.1 of the Commission Decision of 15 November 2012, the Commission considers that the existence of IUU vessels in RFMOs IUU lists currently flagged to Guinea or carried the flag of Guinea after its inclusion in these lists is a clear indication that Guinea has failed to undertake its flag State responsibilities under international law.

(148)

In addition to these Guinean vessels currently listed under RFMO IUU vessels lists, as highlighted in the recitals (155), (156), (174) and (175) of the Commission Decision of 15 November 2012, the Commission established that three additional Guinean flagged purse-seiner vessels have repeatedly conducted fishing operations in 2010 and 2011 in violation of ICCAT Recommendations. The Commission established that these Guinean vessels, which represent the whole Guinean fleet of tuna fishing vessels operating in the ICCAT area, continuously conducted in 2010 and during several months in 2011 fishing operations without international fishing licences and without VMS devices on board, and carried out at least 30 illegal transhipments at sea in violation of ICCAT rules. According to information at the disposal of the Commission these operations referred to a significant amount of fish caught under illegal conditions (8 922 tonnes of tuna species in 2010) as well as to a significant quantity of fish illegally transhipped at sea (at least 14 200 tonnes in 2010 and 2011). Furthermore, the Commission received in July 2013 additional information from one Member State authority on presumed IUU fishing activities of these three purse-seiner vessels occurring during 2012. Taking into consideration the repetitiveness and continuity during a long period of time of the illegal behaviour of these tuna fishing vessels representing the whole Guinean fleet operating under ICCAT, the Commission considered these established facts as a relevant indication that fishing vessels flying the flag of Guinea were carrying out recurrent IUU fishing. As it is clearly demonstrated in this section of the present Decision these vessels continue to operate under Guinea flag without any changes in their operational and regulatory modalities, except installation of VMS devices on board. The Commission observed that no sufficient progress has been made since the adoption of the Commission Decision of 15 November 2012 to ensure an effective control and monitoring of the activities of the Guinean fishing vessels operating in the ICCAT area.

(149)

The Commission also established that Guinea did not take adequate measures to detect continuous and repeated violations of international law and to prevent fisheries products stemming from IUU fishing from entering the EU market. In this respect it is recalled that the Union had introduced measures prohibiting entry into the EU of fisheries products because of sanitary reasons (26). The Commission established that the three additional Guinean flagged purse-seiner vessels mentioned in the recital (148) systematically obtained catch certificates in 2010 to be in a position to export these fisheries products illegally caught and transhipped to the EU market. In this context, the Commission established that, in doing so, the Guinean authorities have validated catch certificates presenting clear indications that these three vessels were carrying out illegal transhipments at sea in relation with the fishery products intended to be exported to the EU (operations of transhipments at sea were mentioned on the catch certificates with the signatures of the masters of both providing and collecting vessels, and geographical positions of the transhipments at sea).

(150)

As highlighted in the recital (161) of the Commission Decision of 15 November 2012, the existence of a number of IUU vessels in the RFMOs IUU list that carried the flag of Guinea after their inclusion of these lists demonstrates the lack of ability of Guinea to ensure that fishing vessels entitled to fly its flag do not engage in or support IUU fishing, which is not in line with the recommendation in point 34 of the IPOA IUU.

(151)

Moreover, since the Commission Decision of 15 November 2012 the number of the vessels that carried the flag of Guinea after their inclusion in the RFMO IUU vessels list has not decreased and the conditions under which the Guinean tuna fishing fleet operates in the ICCAT area have not been fundamentally corrected. The Commission established in the course of the mission in February 2013 that Guinea has installed VMS devices on board of these vessels but without being in a position to really monitor and control their fishing and transhipment activities at sea. In this respect, the Commission established that these vessels in absence of reform of the Guinean Fisheries Code still operate without international fishing licences and that no measures have been taken to ensure that these vessels comply effectively with the ICCAT rules in terms of ban of transhipments at sea (e.g. in contradiction with ICCAT rules, there are no observers on board that would improve the capacity of Guinea to control and monitor the activities at sea of its fishing vessels operating on the high seas). In this respect, while Guinea is not in a position to control its vessels operating in the high seas and cannot ensure compliance by vessels flying its flag with regional conservation and management measures for straddling fish stocks and highly migratory fish stocks, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 18 and 19 UNFSA.

(152)

In this context, the Commission considered that Guinea as the flag State has failed to exercise its responsibilities to ensure the compliance of its fishing fleet with RFMO conservation and management measures. The Commission considers that the situation described in recitals (144) to (151) of the present Decision highlights the failure of Guinea to fulfil its obligations under Article 94 and 117 UNCLOS.

(153)

In addition, pursuant to Article 18(1) and (2) UNFSA, the flag State is responsible vis-à-vis its vessels operating on the high seas. It is recalled that UNFSA regulates matters pertaining to the conservation and management of straddling fishing stocks and highly migratory fish stocks. As highlighted in the recitals (144) to (151) of the present Decision, the Guinean flagged fishing fleet operating in the ICCAT area was in 2010 and 2011 repeatedly and continuously violating rules of ICCAT which is a RFMO managing such type of fish stocks. In this context, taking into account that it was established that the whole Guinean fleet operating in ICCAT area was behaving systematically and during a long period of time in violation of ICCAT rules, the Commission considers that Guinea has failed to undertake its flag State responsibilities under international law. In addition to the above mentioned facts, the existence of one IUU Guinean vessel in the ICCAT RFMOs IUU list that carried the flag of Guinea after its inclusion in these lists also highlights the failure of Guinea to fulfil its obligations under Article 19(1) and (2) UNFSA.

(154)

Thus, the generalised non-compliance of Guinean tuna fishing vessels operating in the ICCAT area highlights the failure of Guinea to fulfil its flag State obligations. Indeed, the established IUU fishing activities carried out by the Guinean fishing fleet operating in the ICCAT area undermine conservation and management of living resources. In such a way, Guinea does not act in accordance with Article 118 UNCLOS, which states that states shall cooperate with each other in the conservation and management of living resources in the areas of the high seas.

(155)

With regard to measures taken by Guinea in relation to the situation described in recitals (144) to (154) of the present Decision, the Commission found that adequate measures in respect of recurrent IUU fishing carried out by fishing vessels flying its flag could not be effectively taken by Guinea due to the shortcomings of its legal framework to ensure an effective control and monitoring of activities of its vessels operating on the high seas. It thus suggested, in the action plan, that Guinea conduct the necessary reforms so that an effective control and monitoring of its vessels operating on the high seas can be ensured. The Commission has reiterated its suggestion to initiate a reform of the Guinean legal framework in a written document transmitted to the Guinean authorities on 1 March 2013. In their submissions mentioned in Section 6 of the present Decision, Guinea announced that it intends to revise its fisheries law and regulations. However, until now, Guinea has not initiated a reform of its legal framework. No concrete timetable for the enactment of such reform has been provided. Therefore, no progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(156)

With regard to measures taken by Guinea in relation to the situation described in recital (148) of the present Decision, and as explained in the recital (162) of the Commission Decision of 15 November 2012, the Commission found that Guinea did not ensure adequate sanctions, discourage repetition of violations and deprive offenders of the benefits accruing from their illegal activities. It also was lacking an adequate administrative system for investigations, and monitoring of its vessels. This lack of appropriate measures had not been addressed at the moment of adopting the present Decision.

(157)

In relation to the revision of the legal framework and efficient enforcement of deterrent sanction system, Guinea adopted a new Decree on 1 March 2012 that has reinforced the level of sanctions. However, the scope of the Guinean Fisheries Code does not cover possible illegal fishing activities carried out on the high seas by fishing vessels flagged to Guinea. In this context and in light of the established recurrence and extent of IUU fishing activities conducted by the Guinean fishing vessels operating in the high seas as explained in the recital (155) of the Commission Decision of 15 November 2012, the Commission considers that this measure cannot achieve the objective of ensuring adequate sanctions, discouraging repetition of violations and depriving offenders of the benefits accruing from their illegal activities. Therefore, no concrete progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012. Thus, while Guinea is not in a position to take measures for its respective nationals as may be necessary for the conservation of the living resources of the high seas, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 117 UNCLOS. In the same manner, while Guinea is not in a position to ensure compliance by vessels flying its flag with regional conservation and management measures for straddling fish stocks and highly migratory fish stocks, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 19 UNFSA.

(158)

The Commission considers that the performance of Guinea with respect to effective enforcement measures is not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels and, to the greatest extent possible, nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. In this regard, Guinea has not implemented a Plan of Action to fight against IUU, being also not in accordance with the recommendations in point 25 of the IPOA IUU.

(159)

In the course of the mission carried out in May 2011, based on suitably documented evidences communicated by the Guinean authorities, the Commission established that recurrent IUU fishing was carried out by fishing vessels operating in its maritime waters.

(160)

As explained in the recital (163) of the Commission Decision of 15 November 2012, the Commission established that in relation with these recurrent IUU fishing activities Guinea did not take appropriate measures for preventing, detecting and sanctioning recurrent IUU fishing activities carried out by fishing vessels operating in its waters.

(161)

As from the adoption of the Commission Decision of 15 November 2012, with regard to these recurrent IUU fishing activities, Guinea has taken some measures in order to improve the detection of IUU fishing activities in its EEZ. Guinea reinforced its means to control and monitor activities at sea in its EEZ (up to50 nautical miles) with the construction of a semaphore on Tamara island and the creation of a Prefecture Maritime in charge of coordinating surveillance operations at sea (patrol vessels of the Navy are used to detect IUU fishing activities in the EEZ).

(162)

As from the adoption of the Commission Decision of 15 November 2012, with regard to actions to combat these recurrent IUU fishing activities, Guinea has not yet taken several crucial measures suggested in the Action Plan communicated on 15 November 2012, mentioned in the Memorandum transmitted to the Guinean authorities on 4 February 2013 and laid out in the written observations on the outstanding issues transmitted to the Guinean authorities on 1 March 2013: no sanction taken against infringements detected on basis of documentary evidences (catch reports, observers reports, VMS reports); the status and prerogatives of the observers on board have not been reinforced; many obligations foreseen under the Guinean law are still not implemented and enforced by the Guinean authorities (e.g. obligation to report VMS positions; sanction against operators that do not report VMS signals; obligation to transmit copies of logbooks at the end of a fishing campaign; obligation to declare entry/exit of the Guinea EEZ) at the date of adoption of the present Decision.

(163)

In addition, the Commission considers that the measures adopted by Guinea described in recital (161) of the present Decision merely constitute general pre-conditions which are as such insufficient for preventing, detecting and eradicating recurrent IUU fishing carried out by fishing vessels operating in the Guinean maritime waters. Indeed, as highlighted in the recital (163) of the Commission Decision of 15 November 2012, as coastal state, Guinea has until now failed to effectively implement its legal framework and has failed to properly prosecute IUU fishing and enforce sanctions against vessels and operators involved in IUU fishing. In this respect, the Commission considers that Guinea as from 2011 has applied a non-effective policy on prosecution and enforcement action in respect of recurrent IUU fishing activities in its maritime waters. In particular, the Commission established in the course of the mission conducted from 26 February to 1 March 2013 that at this date seven infringements committed by foreign vessels operating in the Guinean waters detected by the Guinean authorities were sanctioned with the lowest possible fine foreseen in the Guinean Law. Indeed, while Article 7 of Decree No 27 of 1 March 2012 provides for fines ranging from USD 15 000 to USD 30 000 with automatic seizure of the fishing gears in case of fishing activities with illegal fishing gears or nets, three infringements of illegal fishing activities with illegal nets committed on 8 November 2012 by three vessels were sanctioned by the Guinean authorities with the lowest level of administrative fine (USD 15 000) and without seizure of the fishing gears concerned. In the same manner, while Article 6 of Decree No 27 of 1 March 2012 provides for fines ranging from USD 30 000 to USD 50 000 with automatic seizure of the catches and fishing gears in case of illegal fishing activities in a forbidden area or area reserved for artisanal fisheries, four infringements of illegal fishing activities in forbidden areas committed on 30 November 2012 by four vessels were, in spite of the seriousness of the infringements, sanctioned by the Guinean authorities with the lowest level of administrative fine (USD 30 000) and without seizure of the fishing gears and catches concerned in contradiction with the Guinean law.

(164)

In light of the situation described in recitals (159) to (163) of the present Decision, the Commission considers that Guinea, by failing to effectively implement its legal framework to properly prosecute recurrent IUU fishing in its waters and to enforce sanctions against vessels and operators involved, acts in contradiction with Article 61 and 62 UNCLOS which create an obligation for coastal states to promote the objective of optimum utilisation of the living resources in their EEZs and to ensure that these living resources are not endangered by over-exploitation.

(165)

Consequently, the actions undertaken by Guinea in light of its duties as flag and coastal state are insufficient to comply with the provisions of Articles 61, 62, 94, 117 and 118 of the UNCLOS and Articles 18, 19 and 20 UNFSA.

(166)

In view of the recitals (153) to (163) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012 the Commission takes the view, pursuant to Article 31(3) and 31(4)(a) of the IUU Regulation, that Guinea has failed to discharge the duties incumbent upon it under international law as a flag and coastal state in respect of IUU vessels and IUU fishing carried out or supported by fishing vessels flying its flag or operating in its maritime waters or by its nationals and has not taken sufficient action to counter documented and recurring IUU fishing by vessels flying its flag or operating in its maritime waters.

(167)

As described in the recitals (165) to (180) of the Commission Decision of 15 November 2012, the Commission analysed whether Guinea has taken effective enforcement measures in respect to operators responsible for IUU fishing and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(168)

As described in the recitals (165) to (175) of the Commission Decision of 15 November 2012, Guinea did not ensure that sanctions for repeated IUU fishing conducted by vessels flying its flag and nationals under their jurisdiction are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing.

(169)

In relation to the recitals (165) to (175) of the Commission Decision of 15 November 2012, in the course of the procedure initiated by the Commission under Article 27 of the IUU Regulation, Guinea imposed administrative sanctions against the three Guinea-flagged purse-seiner vessels in order to avoid the IUU listing of three vessels flagged to Guinea. The Commission considered that the global level of sanctions applied was not adequate in severity to be effective in securing compliance and to discourage violations to ICCAT rules. In addition, taking into account the repetitiveness and duration of the violations as well as the quantities and the type of catches concerned by these illegal activities, the Commission considered that the final sanctions applied were still manifestly inadequate to effectively deprive the offender of the benefits accruing from its illegal activities. In application of its legal framework, Guinea was not in a position to apply a more dissuasive sanction against these vessels. Furthermore, as explained in recital (157) of the present Decision, the sanctions taken by Guinea against vessels operating in the high seas in contravention of international ICCAT rules have not a firm legal basis as the Guinean Fisheries Code cannot apply to facts located outside the Guinean maritime waters. In this context, Guinea is not in a position to apply sanctions adequate in severity to be effective in securing compliance, to discourage violations and to deprive offenders of the benefits accruing from their illegal activities. Consequently, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 117 UNCLOS and Article 19(2) UNFSA. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(170)

In relation to the recital (173) of the Commission Decision of 15 November 2012, despite the adoption of the Decree of 1 March 2012 mentioned above in recital (157), the level of sanctions is still manifestly inadequate to effectively deprive offenders of the benefits accruing from their illegal activities. Furthermore, as explained in recital (157) of the present Decision, taking into account that the Guinean Fisheries Code can only apply to fishing activities in the Guinean waters, without a more fundamental revision of the Guinea Fisheries Code this measure cannot cover possible illegal fishing activities carried out on the high seas by fishing vessels flagged to Guinea. In this context, Guinea is not in a position to ensure compliance by vessels flying its flag with international conservation and management measures for straddling and high migratory fish stocks. Consequently, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 117 UNCLOS and Article 19(1) UNFSA. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(171)

As described in the recital (168) of the Commission Decision of 15 November 2012, Guinea has a legal framework that does not allow adequate conditions for the cooperation with the EU, or, for that matter, third countries or RFMOs to follow up IUU fishing activities conducted by long distance fishing vessels operating on the high seas and to take effective enforcement measures in respect of operators and vessels responsible for IUU fishing. In this context, Guinea has not cooperated with the Commission and the ICCAT to ensure compliance with and enforcement of international conservation and management measures for straddling and high migratory fish stocks. Consequently, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 118 UNCLOS and Article 20 UNFSA. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(172)

As described in the recital (176) of the Commission Decision of 15 November 2012, Guinea as coastal state fails to enforce the obligations of the vessels and economic operators operating in its EEZ and fails to appropriately sanction the vessels and operators for which IUU fishing activities have been detected. The Commission established in the course of the mission conducted from 26 February to 1 March 2013 that the situation described in the Commission Decision has not been improved as it was observed that many infringements are still not pursued (e.g. absence of VMS signals; repeated infringements related to rules on by-catches) or not appropriately sanctioned by the Guinean authorities (e.g. the last seven infringements detected in the Guinean waters by the Guinean authorities at the date of the mission in February 2013 were sanctioned with the lowest fine possible, even if serious infringements took place). By failing to effectively implement its legal framework to properly prosecute recurrent IUU fishing in its waters and to enforce sanctions against vessels and operators involved, Guinea has acted in contradiction with Article 61 and 62 UNCLOS which obligates coastal states to ensure that no over-exploitation takes place.

(173)

In the same manner, in relation to a case pertaining to the delivery of forged Guinean licences to foreign vessels that operated in the Guinean waters in 2012, the Commission established in the course of the mission conducted from 26 February to 1 March 2013 that the Ministry for Fisheries and Aquaculture has not initiated criminal investigations and proceedings against the natural and legal persons involved in the fraudulent practice, in contradiction with the procedure foreseen in Article 10 of Décret of 1 March 2012 on sanctions and accessories sanctions. On this concrete case, in the Memorandum summarising the main issues to be addressed transmitted on 4 February 2013, Guinea was officially notified and invited by the Commission to enforce the relevant provisions of the Guinean law and regulations in order to sanction and deter these fraudulent practices which directly risk to provoke over-exploitation of the living resources in the EEZ of Guinea. By failing to take effective actions in this particular case, Guinea as coastal state has acted in contradiction with Article 61 and 62 UNCLOS, and as flag State has acted in contravention with Article 19(2) UNFSA which provides for an obligation to carry out expeditiously all investigations and judicial proceedings.

(174)

As described in the recitals (177) and (178) of the Commission Decision of 15 November 2012, Guinea as coastal state also fails to actively cooperate with the other states concerned to ensure compliance and enforcement of conservation and management measures for straddling fish stocks and highly migratory fish stocks. In this respect, the Commission observed in the course of the mission conducted from 26 February to 1 March 2013 that the Guinean Plan de Pêche for 2013 does not implement a sustainable and credible fishing licences policy for certain highly migratory species and straddling stocks (small pelagic fishes) consistent with the scientific advice elaborated at international level. In particular, the fishing opportunities foreseen in 2013 for small pelagic fish are in breach of the scientific advice provided by Fishery Committee for the Eastern Central Atlantic (27) (FCECA). While the 2011 FCECA report recommended that global catches of small pelagic fish caught in Guinea Bissau, Guinea, Sierra Leone and Liberia EEZs do not exceed 112 000 tonnes/year, Guinea acted in contradiction with this recommendation by establishing only for 2013 a national quota amounting to 100 000 tonnes for the Guinean EEZ. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012. To the contrary, the attitude of the Guinean authorities since 15 November 2012 highlights the lack of cooperation with the international community in the fight against IUU fishing.

(175)

In addition, while the Guinean Plan de Pêche 2012 provided for legal restrictions based on vessels capacity to limit the fishing effort in the Guinean EEZ and protect the small pelagic fishery resource, the competent Guinean authorities have eased the restrictions in the Plan de Pêche 2013 so that fishing licences could be delivered to bigger vessels in 2013. Indeed, according to the Guinean Plan de Pêche for 2012, only small pelagic fishing vessels not exceeding 2 000 TJB (tonneaux de jauge brut, gross registered tons) were authorised to operate in Guinea. The Commission observed that the Plan de Pêche for 2013 has been modified in order to authorise the activity of fishing vessels with a higher capacity (up to 4 500 TJB) in Guinean waters. Due to this modification of the Guinean Plan de Pêche 2013, five additional pelagic fishing vessels with significant fishing capacity have been authorised to operate within the Guinean maritime waters in 2013 under Guinean fishing licences delivered by the Ministry of Fisheries and Aquaculture.

(176)

In the context described in the above recitals (174) and (175), it has been established that Guinea has adopted in 2013 a National Fisheries Management Plan in contradiction with sub regional and regional conservation and management measures for straddling and highly migratory fish stocks. Consequently, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 20 UNFSA stating that states must cooperate promptly and expeditiously in order to ensure compliance with and enforcement of conservation and management measures. In the same manner, it was established that Guinea decided in 2013 to modify conservation and management measures on small pelagic fisheries without taking into account scientific advice. The Commission observed that Guinea has acted in contradiction with the principle of optimum utilisation of the living resources in its EEZ, endangering the fishery stock concerned by over-exploitation. In doing so, the Commission considers that Guinea fails to fulfil its duties as coastal state under Article 61 and 62 UNCLOS.

(177)

In respect of the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing activities of the IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Guinean-flagged vessels until 2013, the recurrent and repetitive IUU fishing activities carried out by fishing vessels operating in it maritime waters as well as IUU fishing activities supported by its nationals. The Commission has taken into account also the developments following the Commission Decision of 15 November 2012.

(178)

In addition, the Commission has established that there is still a significant lack of coordination between the newly created Préfecture Maritime and the Centre National de Surveillance des Pêches. In this respect, it was established by the Commission in the course of the mission conducted from 26 February to 1 March 2013 and communicated to the Guinean authorities that the coordination between the Préfecture maritime (under the authority of the Presidency) and the Centre National de Surveillance des Pêches (Ministry of Fisheries and Aquaculture) should be improved in order to ensure concrete results in terms of detection and sanctioning of IUU fishing in the Guinean EEZ. This situation undermines the effectiveness of the enforcement procedures put in place by Guinea as coastal and flag State and thus is not consistent with the UNFSA.

(179)

Consequently, the actions undertaken by Guinea in light of its duties as flag and coastal state are insufficient to comply with the provisions of Articles 61, 62, 94, 117 and 118 UNCLOS and Articles 18, 19 and 20 UNFSA

(180)

In view of the recitals (165) to (180) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012, the Commission takes the view, pursuant to Article 31(3) and 31(5) of the IUU Regulation, that Guinea has failed to discharge the duties incumbent upon it under international law as flag and coastal state in respect of cooperation and enforcement efforts.

(181)

As described in the recitals (183) to (205) of the Commission Decision of 15 November 2012, the Commission analysed information deemed relevant with respect to the status of Guinea as Contracting Party of IOTC and ICCAT. In addition, the Commission carried out an analysis of the information deemed relevant with respect to the status of Guinea as Contracting Party of IOTC and ICCAT following the Commission Decision of 15 November 2012.

(182)

The Commission observed that since the Commission Decision of 15 November 2012, ICCAT issued a letter of Concern in 2013 (28) to Guinea. Despite the efforts made by Guinea, the ICCAT Secretariat expressed its concern regarding its reporting deficiencies in 2012. In particular, in that letter Guinea has been identified for its failure to fully and effectively comply with its obligation to submit relevant information related to trade as set out in ICCAT Recommendation 06-13. Indeed, ICCAT expressed its concern to Guinea's failure to provide all the necessary information and reports on: statistics reporting obligation (ICCAT Recommendation 05-09); the Part II of the Annual report; data on Task 1 (fleet statistics or size data); and information related to management measures for large-scale longline tuna vessels and compliance tables. It is also pertinent to note that ICCAT has requested information to Guinea related to the actions taken in respect to Daniaa vessel, which is under IUU list since 2008. Indeed, as regards the ICCAT Recommendation 11-18, on List of vessels presumed to have carried out IUU fishing activities, ICCAT has requested Guinea to investigate and inform them about the current flag of Daniaa vessel.

(183)

The Commission also analysed information available from ICCAT on the compliance of Guinea with ICCAT rules and reporting obligations. To this end, the Commission assessed the ICCAT 2012 Compliance Summary Tables (29). According to information available, Guinea was identified on basis of shortcomings regarding the lack of reporting on quotas and catch limits, on conservation and management measures for vessels 20 m in length overall or more, on Part II of the Annual Report, on Task 1 regarding to fleet and size data. Furthermore, Guinea has not reported of actions taken in respect of one vessel on ICCAT IUU vessels list (Daniaa).

(184)

According to information derived from the IOTC Compliance Report from 2013 (30), Guinea is still not compliant for the year 2012 as regards several Resolutions adopted by IOTC. In particular, Guinea has not provided its Report of Implementation, in accordance to Article X of the IOTC Agreement. As regards IOTC Resolution 10/09 on implementation obligation, Guinea has not provided the completed Compliance Questionnaire. As regards IOTC Resolution 12/11 on reporting of vessels, Guinea has not provided the mandatory report on its baseline capacities for tropical tunas and/or swordfish and albacore. As regards IOTC Resolution 10/02 on the mandatory statistical requirements, Guinea has not reported nominal catch, catch and effort and size frequency data as required by this Resolution. As regards IOTC Resolution 05/05 on the submission of date regarding sharks, Guinea has not complied with this Resolution since the mandatory report of data on sharks has not been provided.

(185)

The performance of Guinea with respect to ICCAT obligations as explained in recitals (182) and (183) of the present Decision as well as its failure to provide to IOTC the information referred to in the recital (184) of the present Decision indicates the failure of Guinea to fulfil its obligations as flag State laid down UNCLOS and the UNFSA. In particular, the failure to provide information on statistics, catch and effort, baseline capacities for tuna, swordfish and albacore and date on sharks undermines the ability of Guinea to fulfil its obligations under Articles 117 and 118 UNCLOS which stipulate the duties of State to adopt measures for their respective nationals for the conservation of living resources of the high seas and to cooperate on conservation and management measures for living resources in the areas of the high seas.

(186)

In light of the new elements exposed in recitals (182) to (184) of the present Decision that reinforce the demonstration of recitals (200) to (205) of the Commission Decision of 15 November 2012, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 18(3) and 18(4) UNFSA. No progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(187)

In addition, in relation to the recital (191) of the Commission Decision of 15 November 2012, and the breach of ICCAT Recommendation 03-14 (concerning minimum standards for the establishment of a VMS in the ICCAT convention area), Guinea has taken measures to repair and make operational the VMS as of 1 January 2013. Nevertheless, the Commission observed in the course of the mission conducted from 26 February to 1 March 2013 and communicated to Guinea that the conditions under which the VMS is currently used cannot ensure an effective and efficient monitoring and control on the fishing activities of vessels flagged to Guinea and of foreign vessels operating within the Guinean EEZ (e.g. non continuous service during nights and weekends; several-fishing vessels do not report their VMS positions; discriminatory enforcement of the obligations in force; lack of training of staff; lack of cooperation and coordination between the Centre National de Surveillance des Pêches operating under the authority of the Ministry of Fisheries and Aquaculture and the semaphore operating under the authority of the Préfecture Maritime). The Commission considers that the administrative decision of 1 July 2013 on the rules to be applied in terms of VMS tracking system as indicated in recital (140) of the present Decision is positive but not sufficient under an operational point of view to ensure an effective and efficient monitoring and control on the fishing activities of vessels flagged to Guinea and of foreign vessels operating within the Guinean EEZ. In this context, while Guinea is at the date of the present Decision not in a position to effectively monitor and control the activities of vessels flying its flag and operating in the ICCAT area with a fully operational Fisheries Monitoring Centre, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 18(3)(g) UNFSA. Therefore, no sufficient progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(188)

In the same manner, in relation to the recital (192) of the Commission Decision of 15 November 2012, and the breach of ICCAT Recommendation 06-11 (establishing a programme for transhipments), Guinea submitted as indicated in recital (134) of the present Decision a Decree adopted in its quality of coastal state enforcing a ban on transhipments at sea in its maritime waters and regulating transhipments at port. Nevertheless, since the adoption of the Commission Decision of 15 November 2012, Guinea in its responsibility as a flag State did not take any preventive and corrective measures to ensure an effective control and enforcement on the ban of transhipment at sea in the ICCAT area concerning the three purse-seiners flagged to Guinea that were repeatedly and continuously violating the ICCAT Recommendation 06-11 in 2010 and 2011. In this context, while Guinea is at the date of the present Decision not in a position to effectively regulate transhipment on the high seas of vessels flying its flag and operating in the ICCAT area, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 18(3)(h) UNFSA. Therefore, no sufficient progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(189)

With regard to the duties of Guinea as coastal state under international law, in relation to the recitals (193) and (194) of the Commission Decision of 15 November 2012 and as explained in the recitals (174) and (175) of the present Decision, the Commission established that the situation in terms of management of the fishing effort is currently even worse than it was at the moment of the adoption of the Commission Decision of 15 November 2012. As a result of the current policy applied by the Ministry of Fisheries and Aquaculture, the Commission observed that the number of foreign fishing vessels authorised to operate in the Guinean waters has increased from 60 in 2010 and 56 in June 2011 to 70 in February 2013 while Guinea is not in a position to effectively monitor and control fishing activities taking place in its EEZ. In this respect, the Commission considers that the Fisheries Policy applied by Guinea (increased fishing effort in its maritime waters inconsistent with best scientific information available, and disconnected with the administrative capacity to monitor and control) is in contradiction with the principle of optimum utilisation of the living resources in its EEZ, which is likely to endanger the fishery stocks concerned (small pelagic species; demersal species and crustaceans) by over-exploitation.

(190)

In this context, as highlighted in the recitals (206) to (208) of the Commission Decision of 15 November 2012, contrary to the duties incumbent upon Guinea under international law as coastal state, the current fishery policy applied by Guinea does not ensure proper conservation and management measures on the basis of best scientific evidence so that the living resources in the EEZ cannot be endangered by over-exploitation. Therefore, no progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012. To the contrary, the Commission established that Guinea has taken new measures that are contrary to the best scientific evidence available, and has modified conservation and management measures in a sense that could endanger the living resources in its EEZ and the high migratory and straddling stocks without cooperating with the other coastal states of the area. In doing so, the Commission considers that Guinea fails to fulfil its duties as coastal state under Article 61 and 62 UNCLOS. In this respect, this action of the Guinean competent authorities may have diminished the effectiveness of Guinean law and regulations, and international conservation and management measures.

(191)

In this respect, pursuant to Article 31(6)(c) of the IUU Regulation, the Commission observed in the course of the mission conducted from 26 February to 1 March 2013 the existence of modifications on the Guinean Plan de Pêche by the Ministry of Fisheries and Aquaculture as described in the recitals (174) and (175) of the present Decision. These modifications that the Guinean authorities have adopted in 2013 have diminished the effectiveness of the applicable laws and regulations. In addition, the fishing licences policy implemented by the Guinean authorities is in contradiction with the scientific advice elaborated at international level (FCECA) for certain highly migratory species and straddling stocks (small pelagic species). The Commission considers that the administrative decision of 1 July 2013 creating a Comité de suivi-évaluation of the implementation of the Guinean Fisheries Management Plan as described in recital (140) cannot in itself correct the situation that would rather require a fundamental revision of the Guinean Plan de Pêche in order to pursue the objective of avoiding over-exploitation of the living resources in the Guinean EEZ.

(192)

In relation to recital (209) of the Commission Decision of 15 November 2012, Guinea has not taken any measures to develop a national plan of action against IUU fishing in the sense of points 25, 26 and 27 of IPOA IUU. Therefore, no progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(193)

In relation to recital (210) of Commission Decision of 15 November 2012, the Commission established that Guinea has not taken any measures to repeal or modify the procedure enabling temporary registration of vessels under the Guinean flag with no guarantees to deter and prevent registration of IUU vessels. In addition, the Commission observed during the mission conducted from 26 February to 1 March 2013 and communicated to Guinea that the lack of coordination between the Agence de Navigation Maritime (ANAM) under the authority of the Ministry of Transport and the Ministry of Fisheries and Aquaculture creates an additional risk to register IUU vessels under the Guinean flag. In this context, while Guinea is at the date of the present Decision not in a position to effectively exercise its jurisdiction and control over ships that could be temporary registered under its flag, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 94(2)(b) UNCLOS stipulating that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew. Therefore, no progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012.

(194)

In addition, in relation to the implementation of an adequate licensing system for Guinean-flagged vessels fishing on the High Seas, the Commission observed in the course of the on-the-spot mission in Guinea from 26 February to 1 March 2013 that no progress has been made in this respect since the adoption of the Commission Decision of 15 November 2012. In this context, while Guinea is at the date of the present Decision not in a position to effectively control vessels flying its flag by means of fishing licences and establishment of regulations to apply terms and conditions to these fishing licences, the Commission considers that Guinea fails to fulfil its duties as flag State under Article 18(b) UNFSA.

(195)

Consequently, the actions undertaken by Guinea in light of its duties as flag and coastal state are insufficient to comply with the provisions of Articles 61, 62, 94, 117 and 118 UNCLOS and Articles 18 and 20 UNFSA.

(196)

In view of the recitals (182) to (210) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012, the Commission takes the view, pursuant to Article 31(3) and (6) of the IUU Regulation, that Guinea has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations as well as conservation and management measures.

(197)

As described in the recital (212) of the Commission Decision of 15 November 2012 Guinea is considered as a low human development country (178th in 186 countries) (31) and according to Regulation (EC) No 1905/2006, Guinea is listed in the category of least developed countries.

(198)

As described in the recitals (215) and (216) of the Commission Decision of 15 November 2012, the EU has provided Guinea with financial and technical assistance in the last years.

(199)

In addition, in relation to the recital (180) of the Commission Decision of 15 November 2012, the Commission observed that Guinea received additional technical and financial support from an EU Member State to develop its monitoring, control and surveillance system in order to improve its capacity to detect and fight against IUU fishing in its maritime waters (e.g. equipment of two semaphores; technical cooperation and assistance provided on-the-spot by a military person for creation of the Prefecture Maritime and coordination of actions and operations at sea).

(200)

In view of the recital (217) of the Commission Decision of 15 November 2012 and the developments after 15 November 2012, the Commission takes the view, pursuant to Article 31(7) of the IUU Regulation, that the development status of Guinea may be impaired by its level of development. However, account taken of the nature of the established shortcomings of Guinea, the assistance provided by the EU and the Member States, and actions taken to rectify the situation, the development level of that country cannot explain the overall performance of Guinea as flag or coastal state with respect to fisheries and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

(201)

In view of the conclusions reached above with regard to the failure of Belize, Cambodia and Guinea to discharge the duties incumbent upon them under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, those countries should be identified, in accordance with Article 31 of the IUU Regulation, as countries the Commission considers to be non-cooperating third countries in fighting IUU fishing.

(202)

Having regard to Article 18(1)(g) of the IUU Regulation, the competent authorities of the Member States are bound to refuse, where appropriate, the importation into the Union of fishery products without having to request any additional evidence or send a request for assistance to the flag State where they become aware that the catch certificate has been validated by the authorities of a flag State identified as a non-cooperating State in accordance with Article 31.

(203)

It should be stated that the identification of Belize, Cambodia and Guinea as countries the Commission considers to be non-cooperating for the purposes of this Decision does not preclude any subsequent step taken by the Commission or the Council for the purpose of establishment of a list of non-cooperating countries.

(204)

The measures provided for in this Decision are in accordance with the opinion of the Committee for Fisheries and Aquaculture,

27.11.2013   

EN

Official Journal of the European Union

C 346/26

(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 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 countries, removal from the list of non-cooperating countries, publicity of the list of non-cooperating countries and any emergency measures.

(3)

In accordance with Article 32 of the IUU Regulation, the Commission should notify third countries of the possibility of their being identified as non-cooperating countries. Such notification is of a preliminary nature. The notification of third countries of the possibility of their being identified as non-cooperating countries shall be based on the criteria laid down in Article 31 of the IUU Regulation. The Commission should also take all the démarches set out in Article 32 with respect to those countries. In particular, the Commission should include in the notification information concerning the essential facts and considerations underlying such identification, the opportunity of those countries 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 should give to the third countries concerned adequate time to answer the notification and reasonable time to remedy the situation.

(4)

Pursuant to Article 31 of the IUU Regulation, the European Commission may identify third countries that it considers as non-cooperating countries in fighting IUU fishing. A third country may be identified as a non-cooperating third country if it fails to discharge the duties incumbent upon it 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 will 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 may establish a list of non-cooperating 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, third-country flag States are requested to notify the Commission of their arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by their fishing vessels.

(8)

Pursuant to Article 20(4) of the IUU Regulation, the Commission cooperates administratively with third countries in areas pertaining to the implementation of that Regulation.

(9)

The notification of the Republic of Korea (Korea) 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 15 July 2011, the Commission, with the support of the EFCA, carried out a mission to Korea in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(11)

The mission sought to verify information concerning Korea's arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, the measures taken by Korea in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(12)

The final report of the mission was sent to Korea on 5 October 2011.

(13)

The comments of Korea on the final report of the mission were received on 28 March 2012.

(14)

In the letter dated 11 October 2011, the Commission submitted to the Korean authorities information regarding identified IUU activities by Korean vessels.

(15)

A subsequent mission of the Commission to Korea to follow up the actions taken in the first mission was conducted from 17 to 18 April 2012.

(16)

Korea submitted additional written comments on 16 May 2012, 25 June 2012, 21 December 2012, 19 June 2013 and 21 June 2013. It also provided replies during meetings that took place in Brussels on 26 January 2012, 8 June 2012, 6 September 2012, 9 October 2012, 8 March 2013, 13 March 2013, 22 April 2013, 31 May 2013 and 25 July 2013. The two sides exchanged written comments at political level on 27 June 2013 and 17 July 2013.

(17)

Korea is a Contracting Party to the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Commission for the Conservation of Southern Bluefin Tuna (CCSBT), the Inter-American Tropical Tuna Commission (IATTC), the International Commission for the Conservation of Atlantic Tuna (ICCAT), the Indian Ocean Tuna Commission (IOTC), the Convention on the Conservation and Management of High Seas Fisheries Resources in the South Pacific Ocean (SPRFMO), the WCPFC, the Northwest Atlantic Fisheries Organisation (NAFO) and the South East Atlantic Fisheries Organisation (SEAFO). South Korea has ratified the UNCLOS and UNFSA. It accepted the 2003 FAO Agreement to Promote Compliance with International Conservation and Management Measures by Fishing Vessels on the High Seas (‘FAO Compliance Agreement’).

(18)

The Commission analysed all relevant information in order to evaluate the compliance of Korea with its international obligations as flag, port, coastal or market State (2) as set out in the international agreements and established by the RFMOs mentioned in recital 17.

(19)

The Commission used information derived from available data published by CCMALR, IOTC and ICCAT either in the form of compliance reports or in the form of IUU vessel lists as well as publicly available information retrieved from the United States Department of Commerce Report to Congress Pursuant to Section 403(a) of the Magnuson-Stevens Fisheries Conservation and Management Reauthorisation Act of 2006, January 2013 (the National Marine Fisheries Service (NMFS) report).

(20)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Korea as flag, port, coastal or market State. For the purpose of this review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

(21)

The Commission established on the basis of the information retrieved from its missions on-the-spot and from written confirmation by the concerned third coastal States involved that, during 2011 and 2012, 19 Korean-flagged vessels committed serious IUU infringements.

(22)

Based on the evidence retrieved, these Korean-flagged vessels are considered to have committed the following serious infringements contrary to the conservation and management measures applicable within the fishing areas concerned, as they have: fished without a valid licence, authorisation or permit issued by the flag State or the relevant coastal State; fished in closed areas or during a closed season; used falsified coastal State administrative documents to import into the EU fisheries products caught under illegal conditions in the coastal State jurisdictional waters; used falsified or invalid documents for obtaining validation of catch certificates from the Korean authorities and importation of the products into the EU; falsified or concealed their markings, identity or registration; obstructed the work of coastal State officials in the exercise of their duties in inspecting for compliance with the applicable conservation and management measures; not paid any of the sanctions applied by the competent authorities of the coastal State; unilaterally and illegally renamed vessels and altered their call signs. Furthermore, when these vessels decided to leave the coastal State EEZ, they have not fulfilled their obligations to record and report catch or catch-related data and they have not previously informed the coastal State authorities. Finally, they have engaged in transhipment operations without complying with the conditions of their authorisations to tranship delivered by the competent coastal States, without having previously informed the coastal States and without having applied for and obtained authorisation to tranship from the competent States. All of these elements have been submitted to the Korean authorities by the letter of 11 October 2011.

(23)

Furthermore, the Commission considered that the behavioural pattern of these Korean-flagged vessels should be taken into account for establishing the particular gravity of the facts. The value, the extent and the repetition of the illegal activities committed, as described in the recital 22, are additional indications of the seriousness of the committed infringements.

(24)

Non-compliances with the legal requirements of coastal States for enforcing closed seasons, a moratorium or a closed area reserved for artisanal fisheries are particularly harmful for the sustainability of the fisheries resources in the developing coastal States concerned, and are damaging the livelihood of local populations.

(25)

Moreover, in operating in the way explained in recital 22, these vessels have obstructed the ability of the competent fisheries authorities of the coastal States to monitor and supervise their activities at sea. The Commission considered that conducting transhipment at sea in violation of conditions imposed by ICCAT or without the permission of the coastal State concerned in contravention of its laws and regulations is of particular gravity, and could seriously undermine the attainment of the objectives of the violated rules, jeopardise the sustainability of the fisheries resources in the coastal State concerned and deprive the competent authorities of the only possibility to monitor these activities, which pose a risk in terms of traceability and control of the fisheries products. Indeed, in some cases, the continuous non-cooperative behaviour of the Korean vessel reinforced the gravity of the infringements committed. Finally, most of these infringements are defined as serious by the laws of the competent coastal States.

(26)

On the basis of information collected, the Commission concluded that Korea did not take appropriate measures for preventing, detecting and sanctioning recurrent IUU fishing activities carried out by fishing vessels operating in its waters. Indeed, available information confirms that recurrent infringements were committed by Korean-flagged fishing vessels operating within third-country waters. The Commission established that for several cases in spite of relevant available information, the competent Korean authorities: did not initiate proceedings; did not sanction the vessels concerned; did not effectively enforce the sanctions when they imposed them; in some cases, they even decreased the level of the accompanying sanctions. In addition, due to the lack of cooperation by the flag State (Korea), the coastal States concerned were unable to take effective enforcement actions. Furthermore, the Commission established that in cases where the Korean authorities took sanctions, the level of the penalties imposed towards those Korean-flagged vessels was manifestly inadequate and the sanctions were lacking the proportionate, effective and dissuasive character required under international rules and recommendations, in particular in Article 19 of the UNFSA and point 21 of the IPOA IUU.

(27)

From information provided by a Korean company and information collected during the Commission mission in March 2011, the Commission established that illegal transhipments at sea in violation of Panamanian and coastal States laws and regulations were taking place along the West African coast from Angola to Guinea Bissau during four years.

(28)

The Commission has evidence of illegal transhipments performed by Korean-owned vessels. In line with Article 62 of the UNCLOS, nationals of other States fishing in the EEZ of a coastal State shall comply with the conservation measures and with other terms and conditions established in the laws and regulations of the coastal State. Thus, the Commission considers that conducting transhipments at sea in violation of conditions imposed or without the permission of coastal State concerned in contravention of its laws and regulations is an IUU infringement of particular gravity and could seriously undermine the sustainability of the fisheries resources in the coastal State concerned.

(29)

In view of the situation explained in this Section of the Decision and on the basis of all the factual elements gathered by the Commission as well as all the statements made by the concerned country, it could be established, pursuant to Article 31(3) and Article 31(4)(a) of the IUU Regulation, that Korea has failed to discharge the duties incumbent upon it 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 and has not taken sufficient action to counter documented and recurring IUU fishing by vessels previously flying its flag.

(30)

With respect to whether Korea cooperates effectively with the Commission and coastal States on investigations of IUU fishing and associated activities, it is noted that evidence gathered by the Commission indicates that Korea failed to fulfil its flag State obligations as set out under international law.

(31)

With respect to the 19 Korean-flagged vessels referred to in recital 21, it is noted that considering that the Korean authorities failed to cooperate with the Commission in the framework of Article 26 of the IUU Regulation, the Commission initiated the procedure of Article 27 of that Regulation vis-à-vis the operators concerned.

(32)

This situation indicates that Korea also failed to cooperate and coordinate activities with the EU and other States in preventing, deterring and eliminating IUU fishing as set out in point 28 of the IPOA IUU. Korea 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. This includes the requirement for vessels under its jurisdiction to carry VMS on board. In the same manner, Korea failed to take into consideration the recommendations in point 45 of the IPOA IUU which advises flag States to ensure that each vessel entitled to fly their flag fishing in waters outside their sovereignty or jurisdiction holds a valid authorisation to fish issued by the flag State concerned. Furthermore, Korea fails to comply with point 47(7) of the IPOA IUU by not requesting the history of the vessel in terms of possible infringements committed before granting a fishing licence.

(33)

It should be also noted that the 2005 Korean National Plan of Action against IUU fishing (NPOA), contrary to the recommendations in points 26 and 27 of the IPOA IUU, has not been updated. The May 2013 Korean's Plan to Enhance the Mechanism to Prevent and Deter IUU Fishing Activities by Korean-flagged vessels is a draft that cannot be considered as a detailed and clear national plan of action against IUU fishing. Korea has not improved its level of implementation of the NPOA to ensure that national efforts to prevent, deter and eliminate IUU fishing are internally coordinated. In particular, in terms of monitoring, control and surveillance of the long-distance fleet a number of objectives has not been met. The Commission revealed during its missions that the level of the exchange of information with the coastal States is unsatisfactory. Korea still does not meet the requirements to fulfil its flag and port State responsibilities under international law.

(34)

In the course of the mission conducted in Korea in July 2011, the Commission observed that there was no Fishing Monitoring Centre (FMC) as such, to control the Korean long-distance fishing fleet, and the operators of the Long-Distance Waters Fisheries Division 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 (EEZ or RFMO) is actually authorised to operate there. Moreover, concerning the validation of catch certificates for the long-distance fleet, it was revealed that the competent Korean authority, the National Fisheries Products Quality Inspection Service, has no means to crosscheck the information mentioned in the catch certificates and other reliable sources of information such as the fishing licences held by the economic operator, the VMS positions of the fishing vessels, the catch reports or copies of the logbooks. Following the information provided by the Government of Korea, a new Ministry of Oceans and Fisheries has been established, and a FMC will be commissioned to monitor its fleet. However, the existing legislation is still not in line with Article 18(3)(e)(g)(iii) and Article 18(4) of the UNFSA. In this regard, the deficiencies identified in terms of human resources, availability of data on the fishing vessels positions in real time or historic data, methods used and training of the officials in charge need to be corrected.

(35)

With respect to administrative rules concerning transhipment at sea of fish, it was submitted by Korea that such rules exist only in cases covered by RFMOs or if coastal States regulate such activity. In the latter case, it was clarified that the Government of Korea receives no report of such operations of transhipment at sea. In this respect, it is pertinent to note that transhipments at sea effectuated by Korean fishing vessels in West African waters gave rise to infringements as referred in recitals 21 to 28, and were subject to requests for verification in 2011 from different Member States (3).

(36)

The existence of a procedure under Article 27 of the IUU Regulation constitutes a further indication of the failure of Korea to exercise its responsibilities vis-à-vis its vessels operating on the high seas as set out in Article 18(1) and (2) of the UNFSA. Furthermore, pursuant to Article 19(1) of the UNFSA, the flag State is required to ensure compliance by vessels flying its flag with RFMO conservation and management rules.

(37)

The Commission analysed whether Korea has 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 have been applied.

(38)

The recurrence of the cases of IUU fishing described in the recitals 21 to 28 indicate that Korea failed to take enforcement actions in response to such IUU fishing following relevant requests made by the Commission.

(39)

The Korean failure to effectively monitor and sanction the participation of Korean vessels in these illegal activities undermines its ability to fulfil its obligations under Article 117 of the UNCLOS which stipulates the duties of States to adopt national measures for their respective nationals for the conservation of living resources of the high seas. In this respect, it should be noted as well that the importance of effective actions vis-à-vis beneficial owners is confirmed by relevant FAO and OECD documentation which highlights the importance of information on beneficial owners in order to combat illicit activities (4) and the need for records of fishing vessels and beneficial ownership (5). That administrative practice, that could attract IUU operators for registration of IUU vessels, is not in compliance with Article 94 of the UNCLOS.

(40)

The failure of Korea as a flag State to fulfil its compliance and enforcement obligations as laid down in Article 19 of the UNFSA is also confirmed by the information gathered during the missions held in 2011 and 2012 and by information collected by the Commission in accordance with Article 25 of the IUU Regulation. The Commission established that fishing vessels flying the Korean flag were committing recurrent IUU fishing activities. This situation prompted the initiation of procedures under Articles 26 and 27 of the IUU Regulation. The procedures under Article 27 are currently ongoing in order to establish if IUU fishing activities are adequately sanctioned in a manner that ensures compliance, discourages violations and deprives offenders of the benefits accruing from their illegal activities. The Korean authorities were informed of these procedures by letters of 11 October 2011, 22 December 2011 and 2 March 2012.

(41)

Points 34 and 35 of the IPOA IUU also provide that States should ensure that fishing vessels entitled to fly their flag do not engage in or support IUU fishing and, before they register a vessel, they can exercise their responsibility to ensure that the vessel does not engage in IUU fishing. Furthermore, the actions referred to in recital 59 regarding the activities of Korean nationals in the tropical tuna fisheries in the Gulf of Guinea, which included prohibited transhipments by vessels flagged to Ghana, undermine the ability of Korea to fulfil its obligations under Article 94(2)(b) 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.

(42)

Available evidence confirms that Korea has not fulfilled its obligations under international law with respect to effective enforcement measures. In this respect, it is recalled that, according to the Korean Ocean Industry Development Act of 2007 as amended in March 2013, Korean-flagged fishing vessels are only required to carry the VMS when fishing in the framework of RFMOs requesting VMS, or when operating in national waters under fishery agreements that Korea has signed with third countries (6). As a result, there is no legal requirement for vessels to carry VMS if fishing in the high seas outside RFMOs scope of competence or in waters of coastal States with which no fishing agreement exists. According to information provided by the Korean authorities on 25 July 2013, at present 97 out of the 344 Korean long-distance fishing vessels are not fitted with VMS system. Under the July 2013 Ocean Industry Development Act the installation of VMS is not clearly foreseen as compulsory for all long-distance fishing Korean fleet irrespectively of where they operate. Compulsory VMS tracking is by now a practice internationally accepted, which therefore forms part naturally of the duties of flag States according to Article 18(3)(e) of the UNFSA. The facts described in this recital and in recitals 21 to 28 indicate that Korea 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. Furthermore, Korea 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.

(43)

Furthermore, with respect to the enforcement measures put in place by Korea, the missions conducted by the Commission in Korea also revealed that there is a need to review the applicable sanctions in respect of violations, as provided for in Korean Ministerial Directive of 29 December 2009 on the EU’s IUU rules, the ‘Fishery Resources Control Act’. The criminal sanctions provided for in the legal system of Korea set a general maximum limit for fines at USD 1 000 for infringement. The level of such sanctions is manifestly inadequate and is clearly not proportionate to the seriousness of possible infringements, to the potential impact of the infringements on the resource and to the potential benefit that could derive from such illegal actions to perpetrators. The recently adopted (July 2013) Ocean Industry Development Act does not establish a clear catalogue of dissuasive sanctions (criminal and administrative) and accompanying sanctions. The current revised system foresees several derogations on suspension of licences, does not define clearly serious infringements, contains unclear definitions and unclear methods of calculating the level of sanctions. In the course of the mission conducted in March 2011 and the following communications held with Korea, the Commission observed that, in spite of the availability of sufficient information for notifying infringements committed by their fishing vessels operating in high seas and third-country waters, the competent Korean authorities were failing to undertake prompt actions to initiate proceedings and, where appropriate, to properly sanction the vessels concerned. Pursuant to Article 62 of the UNCLOS, nationals of other States fishing in the EEZ of a third country must comply with the conservation measures and with the other terms and conditions established in the laws and regulations of the coastal States. In this respect, the administrative practices observed in Korea are not consistent with its international obligations as flag State under the UNCLOS.

(44)

It is pertinent to note that Korea was also mentioned in the NMFS report (7). Korea has been identified for failing to apply sufficient sanctions to deter its vessels from engaging in fishing activities that violate conservation and management measures required under an international fishery management agreement. Specifically, NMFS is concerned that Korea is not effectively controlling its nine fishing vessels currently authorised to fish in the CCAMLR Convention Area. Similar concerns were expressed during the 18th Special Meeting of ICCAT in November 2012 regarding the activities of Korean nationals involved in possible illegal transhipments as is further explained in the recital 59. The Government of Korea further indicated that an amendment of the relevant law to strengthen sanctions against IUU fishing activities has been adopted. Despite the July 2013 Ocean Industry Development Act, the new sanctioning system is still insufficient to deter IUU fishing activities, as explained in 43.

(45)

Account taken of the situation explained in recitals 43 and 44, it is concluded that the level of sanctions for IUU infringements provided for in Korean legislation is not in accordance with Article 19(2) of the UNFSA which provides that the sanctions applicable in respect of violations shall be adequate in severity in order to be effective in securing compliance and to discourage violations wherever they occur and should deprive offenders of the benefits accruing from their illegal activities. Furthermore, the performance of Korea with respect to effective enforcement measures is also not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive the benefits accruing from such fishing.

(46)

The failure of Korea to fulfil its compliance and enforcement obligations, as explained in this Section, also infringes Article III(8) of FAO Compliance Agreement stating that each party shall take enforcement measures in respect of fishing vessels entitled to fly its flag which act in contravention of the provisions of the FAO Compliance Agreement, including, where appropriate, making the contravention of such provisions an offence under national legislation. Sanctions applicable in respect of such contraventions shall indeed be of sufficient gravity as to be effective in securing compliance with the requirements of the FAO Compliance Agreement and to deprive offenders of the benefits accruing from their illegal activities.

(47)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Korean-flagged vessels until 2013 as referred in recitals 21 to 24.

(48)

With respect to the existing capacity of the Korean authorities, it should be noted that, according to the United Nations Human Development Index (8), Korea is considered as a very high human development country (12th in 186 countries). Account taken of its position, it is not considered necessary to analyse the existing capacity of the Korean competent authorities. This is because the level of development of Korea, as referred to in this recital, cannot be considered as a factor undermining the capacity of the competent authorities to cooperate with other countries and pursue enforcement actions.

(49)

In line with the analysis under recital 48, it is also noted that on the basis of information derived from the mission in July 2011 it cannot be considered that the Korean authorities are lacking financial resources; by way of contrast, these authorities rather suffer from the absence of the necessary legal and administrative environment and empowerments to perform their duties.

(50)

In view of the situation explained in this Section of the Decision 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 (5) of the IUU Regulation, that Korea has failed to discharge the duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

(51)

Korea has ratified the UNCLOS and the UNFSA. It accepted the FAO Compliance Agreement. Furthermore, Korea is a Contracting Party to CCAMLR, CCSBT, IATTC, ICCAT, IOTC, SPRFMO, WCPFC, NAFO and SEAFO.

(52)

The Commission analysed any information deemed relevant with respect to the status of Korea as Contracting Member of CCAMLR, IOTC and ICCAT.

(53)

At the 2011 CCAMLR meeting (9), in relation to the vessel Insung No 7, concerns were expressed on Korea’s level of sanctions towards the operator, vessel and master, given the seriousness of the illegal activity. CCAMLR’s Standing Committee on Implementation and Compliance (SCIC) proposed placing the Insung No 7 on the Contracting Party IUU Vessel List, but Korea blocked its inclusion during the 30th meeting of CCAMLR.

(54)

In the IOTC Compliance Report for Korea issued by the Compliance Committee in its session of 2011 (10), Korea was identified as non-compliant with mandatory statistical requirements set out in Resolution 05/05, 09/06 and 10/06 (by-catch of marine turtles and seabirds not submitted, sharks partially submitted). The Committee also detected several breaches in the compliance with Korean reporting obligations regarding: Resolution 10/04 on regional observer scheme, as Korea had not submitted observer reports; and Resolutions 01/06 and 03/03, concerning the IOTC bigeye tuna statistical document programme, as Korea had not reported to IOTC its assessment of export data versus import data. The concerns of the Committee about the level of compliance by Korea were communicated to this country by the Chair of the IOTC in a letter dated 22 March 2011.

(55)

According to information derived from the IOTC Compliance Report produced on 10 March 2012 (11), Korea was non-compliant or only partially compliant in 2011 with several resolutions adopted by IOTC. In particular, not all fishing gears were marked as required by Resolution 01/02 concerning management standards. As regards VMS, Korea is not in compliance with Resolution 10/01 because no information on the summary of VMS record has been provided in the Report of Implementation. Korea has only partially fulfilled its obligation to submit data regarding sharks as required in Resolution 05/05. Moreover, the Chair of the Compliance Committee identified significant non-compliance actions against IOTC legal framework. In this regard, Korea had not submitted observer reports as required by IOTC Resolution 11/04 and had not provided a report on the results of examination of bigeye tuna export data.

(56)

Furthermore, in accordance with the IOTC Circular 2013-2014 (12), during 2012, one Korean vessel was reported as involved in possible infractions observed under the IOTC Regional Observer Programme for monitoring at sea transhipments.

(57)

It is recalled that ICCAT issued a letter of identification to Korea in 2010 (13). In its letter, Korea has been identified for its failure to fully and effectively comply with its obligation to communicate statistics as set out in ICCAT Recommendation 05-09. In the same letter, ICCAT highlighted that Korea had not provided all the necessary data and information such as: data on Task I (data submitted after the deadline); Task II (catch and effort submitted after the deadline and catch size not submitted); compliance tables submitted after the deadline; transhipment reports not submitted; information on the large-scale tuna longline vessel management standard submitted after the deadline; report on implementation of Recommendation 08-05 submitted after the deadline; report on implementation of an annual fishing plan received after the deadline and capacity management plan submitted after the deadline. The Committee also noted the following overharvests by Korea: overharvest of South Atlantic albacore in violation of Recommendation 07-03; overharvest of South Atlantic swordfish for the second consecutive year in violation of Recommendation 06-03; and overharvest of North Atlantic swordfish for the third consecutive year in violation of Recommendation 08-02. With reference to Recommendation 08-01, as a minor harvester, Korea did not have a specified catch limit for bigeye tuna. However, the Committee also highlighted that it was not intended that minor harvesters would increase catches above 2 100 metric tons. The Committee expressed its concern about the upward trend in Korea's bigeye catches. The Committee also was concerned about the fact that Korea was not taking effective action to restrict white marlin harvests within the limits specified by Recommendation 06-09.

(58)

A letter of identification was issued to Korea concerning several deficiencies in compliance with management measures and reporting requirements in 2010 (14). In this letter, Korea is informed that ICCAT decided to maintain the identification of Korea under its Recommendation concerning trade measures (Recommendation 06-13). Furthermore, Korea has been identified for its failure to comply with its obligations as set out in ICCAT Recommendations on compliance with statistical reporting obligations (Recommendation 05-09); to further strengthen the plan to rebuild blue marlin and white marlin populations (Recommendation 06-09); and on the southern albacore catch limits for 2008, 2009, 2010 and 2011 (Recommendation 07-03). In this vein, the Compliance Committee determined that Korea did not provide all necessary data and reports by the established deadlines. Problems regarding lack of reporting, late submissions, incomplete reporting and poor data quality were identified. The Committee also expressed concern that Korea has not taken effective action to control harvests of southern albacore within the limits specified by Recommendation 07-03 and harvests of billfish specified by Recommendation 06-09, as shown by the overharvests of southern albacore and white marlin in 2008 and 2009. As result of these deficiencies identified, ICCAT requested Korea, in the same letter of identification: to respond promptly to the Secretariat's annual circular regarding the applicability of ICCAT reporting requirements and, to this end, review its data collection and reporting procedures; to submit to the Secretariat preliminary management plans for southern albacore and billfish, including measures to be taken to maintain landings within the established target levels and fleet capacity information for the fisheries in which the overharvests were occurring.

(59)

ICCAT issued a letter of concern to Korea regarding several deficiencies in compliance in 2011 (15). Indeed, the Compliance Committee decided to express its concern that Korea has not fully complied with its obligations in accordance with the Recommendation by ICCAT to promote compliance by nationals of contracting parties, cooperating non-contracting parties, entities, or fishing entities with ICCAT conservation and management measures (Recommendation 06-14). The Committee also expressed its concern regarding the activities of Korean nationals in the Gulf of Guinea tropical tuna fisheries which may involve prohibited transhipments by vessels flagged to Ghana. The Committee encouraged Korea to address the involvement of Korean nationals in illegal activities taking place in that fishery. Finally, Korea was requested to inform ICCAT about actions it had taken to promote compliance by its nationals who are involved in the Gulf of Guinea tropical tuna fisheries.

(60)

ICCAT issued a letter of concern to Korea regarding the activities of Korean nationals in the Gulf of Guinea tropical tuna fisheries which may involve prohibited at-sea transhipments in 2012 (16). In this letter, ICCAT requested Korea to take all necessary actions in order to ensure that Korean vessels and nationals are not involved in illegal activities taking place in that fishery.

(61)

On account of its failure to control of vessels in high seas in line with RFMOs rules and of its failure to ensure compliance of the vessels flying its flag with CCAMLR, ICCAT and IOTC recommendations, Korea acts in breach of Article 18(3)(a) of the UNFSA which requires States whose vessels fish on the high seas to take control measures to ensure that those vessels comply with RFMO rules.

(62)

As described in recital 57, Korea does not fulfil its obligations stemming from Article 18(3)(b)(ii) of the UNFSA by allowing its vessels to fish in violation of the conditions established by ICCAT. By not fulfilling the management standards for marking of fishing gear, Korea fails to comply with Article 18(3)(d) of the UNFSA. Korea does not comply with the recording and timely reporting requirements of Article 18(3)(e) and (g) of the UNFSA on account of its failure to submit to IOTC and ICCAT information on annual, statistical and observer reports, trade and by-catch data. Korea does not fulfil the conditions stipulated in Article 18(3)(g) of the UNFSA in view of its failure to comply with the obligation to report to IOTC on the summary of VMS record and to monitor at sea transhipments.

(63)

Finally, it should be noted that, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, Korea has not effectively updated a national plan of action against IUU fishing.

(64)

In view of the situation explained in this Section of the Decision 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 Korea has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(65)

It is recalled that, according to the United Nations Human Development Index (17), Korea is considered as a very high human development country (12th in 186 countries). On the other hand, Korea is listed in Annex V to Regulation (EC) No 1905/2006 as a country falling within the category of non-developing countries and territories.

(66)

Account taken of that ranking, Korea cannot be considered as a country having specific constraints directly derived from its level of development.

(67)

It should be noted that the notification of Korea as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010. Korea consequently confirmed, as Article 20(1) of IUU Regulation states, that it has national arrangements in place for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels.

(68)

The Commission informed Korea of the various shortcomings it detected during the missions it conducted and the meetings held. The Commission sought to achieve cooperation of the Korean authorities and progress in corrective actions in respect of the detected shortcomings. Korea has failed to take sufficient corrective actions and to achieve positive developments in correcting established shortcomings. The Commission analysed the recent revision of its Ocean Industry Development Act which aims at laying down sanctions, establishing a Fisheries Monitoring Centre, extending the equipment of VMS to all distant water fishing vessels and establishing new training programmes for seamen. However, this new domestic legal text is not yet in conformity with the requirements of Articles 62, 94, 117 and 118 of UNCLOS, Articles 18, 19 and 20 of the UNFSA as well as various RFMOs' (to which Korea is a Contracting Party) recommendations for the reasons already explained in Section 3 of the Decision. In relation to the other highlighted elements, the Commission confirmed from a set of meetings conducted with the Korean authorities in the period of April-July 2013 that Korea has not introduced any concrete and tangible plan to implement these actions and is still not in a position to implement its national legislation and to control its fleet beyond its areas under national sovereignty or jurisdiction.

(69)

The situation described above in this Section confirms that Korea is a highly developed country with sufficient means to face and correct the shortcomings identified but the Korean authorities are still failing to introduce and implement measures to fight IUU activities.

(70)

In view of the situation explained in this Section of the Decision 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 Korea with respect to fisheries are not impaired by its level of development.

(71)

The notification of the Republic of Ghana (Ghana) as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 1 January 2010.

(72)

From 28 to 31 May 2013, the Commission, with the support of the EFCA, carried out a mission to Ghana in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(73)

The mission sought to verify information concerning Ghana's arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by Ghana in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(74)

The final report of the mission was sent to Ghana on 14 June 2013.

(75)

A subsequent mission of the Commission to Ghana to follow up the actions taken in the first mission was conducted from 16 to 18 July 2013. On 17 July 2013, the Commission provided to Ghana written observations on the established situation in the country. A technical video conference meeting between Ghana authorities and the Commission took place on 23 July. The Commission provided to Ghana the relevant meeting report on 1 August 2013.

(76)

A subsequent submission of Ghana was received on 23 September 2013.

(77)

Ghana is a Contracting Party to ICCAT, the International Whaling Commission (IWC), the Committee on Inland Fisheries and Aquaculture of Africa (CIFAA), the Fishery Committee of the West Central Gulf Guinea (FCWC) and the Fishery Committee for the Eastern Central Atlantic (CECAF), which are both subregional fisheries advisory body.

(78)

Ghana has ratified the UNCLOS. It signed the 2009 FAO Agreement on Port State Measures to Prevent, Deter and Eliminate Illegal, Unreported and Unregulated Fishing (‘FAO Port State Measures Agreement’).

(79)

In order to evaluate the compliance of Ghana with its international obligations as flag, port, coastal or market State (18) set out in the international agreements mentioned in recital 76 and established by the RFMOs mentioned in recitals 76 and 79, the Commission sought and analysed all relevant information for the purpose of such an exercise.

(80)

The Commission used information derived from available data published by ICCAT, the North East Atlantic Fisheries Commission (NEAFC) and the South East Atlantic Fisheries Organisation (SEAFO) and Northwest Atlantic Fisheries Organisation (NAFO) either in the form of compliance reports or in the form of IUU vessel lists as well as publicly available information retrieved from the United States Department of Commerce NMFS report (19). In addition, the Commission used the results of the missions carried out in 2013 in Ghana.

(81)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of Ghana as flag, port, coastal or market State. For the purpose of this review, the Commission took into account the parameters listed in Article 31(4) to (7) of the IUU Regulation.

(82)

The Commission established on the basis of information retrieved from RFMO IUU vessel lists and collected during the on-the-spot missions carried out in Ghana in May and July 2013 that the IUU fishing vessel ‘Yucatan Basin’ listed under NAFO, SEAFO and NEAFC RFMOs has been renamed as ‘Trinity’ and is currently registered under the flag of Ghana (20).

(83)

In this respect, it is recalled that, pursuant to Article 94(1) and (2) of UNCLOS, related to the duties of the flag State, every flag State shall effectively exercise its jurisdiction and control over each ship flying its flag and its master, officers and crew. This Article establishes also the obligation to maintain a register of ships flying its flag. In this respect, in light of this concrete case and procedures in place, the Commission considers that Ghana is not in a position to prevent the registration of IUU vessels under its flag, which is an indication that Ghana fails to comply with its flag State responsibilities under international law.

(84)

In addition, in the framework of the implementation of the EU IUU Regulation by the EU Member States, the Commission has collected evidence of repetitive infringements committed by Ghanaian flagged vessels in contravention to ICCAT conservation and management measures that led to the official notification of Ghana by the EU to the ICCAT Secretariat on 23 April 2013. The EU provided the ICCAT Secretariat with all supporting information corroborating the facts. The infringements referred to repeated transhipments at sea carried out by tuna purse-seiners flagged to Ghana within the ICCAT area in violation of the ban to tranship at sea under ICCAT rules (ICCAT Recommendation 12-06). In addition, this official notification to the ICCAT Secretariat highlighted presumed non-compliance of Ghana with ICCAT Recommendation 03-14 concerning minimum standards for the establishment of the VMS in the ICCAT Convention Area. Upon receipt of this information, the ICCAT Secretariat informed the Ghanaian authorities on 30 April 2013 on these possible non-compliances with ICCAT rules and invited Ghana to provide the results of their investigations on these matters before 18 October 2013.

(85)

In this respect, several purse-seiners flagged to Ghana conducted repeated illegal transhipments at sea, from 2009 to 2012, within the ICCAT area to two carrier vessels also flagged to Ghana. In accordance with the Recommendation 06-11 (21), purse-seiners are not allowed to tranship at sea tuna species within the ICCAT area. The Commission found that recurrent transhipments at sea took place in breach of this ICCAT Recommendation and observed that these irregular operations were validated by the Ghanaian authorities on Ghanaian catch certificates accompanying fishery products exported to the EU.

(86)

In parallel, the Commission has collected evidence proving that Ghana, before 1 October 2012, has never imposed to its tuna fishing vessels operating in ICCAT area the obligation to report geographical positions in contradiction with paragraphs 3, 4 and 5 of the ICCAT Recommendation 03-14.

(87)

In the same manner, in the framework of the implementation of the IUU Regulation by the EU Member States, the Commission has collected evidence on repetitive IUU infringements committed by Ghanaian-flagged vessels operating without fishing authorisations in waters under jurisdiction of neighbouring countries (e.g. Togo, Benin, Ivory Coast and Nigeria's EEZs). The Commission observed that infringements were detected by the Member States in the framework of their verifications of information mentioned in the catch certificates that were validated by the Ghanaian authorities.

(88)

The Commission also observed that Ghana as coastal State has not taken appropriate measures in respect of the recurrent IUU fishing activities by fishing vessels operating in its maritime waters or using its ports. These IUU activities are suitably documented in the last three monitoring, control and surveillance annual reports communicated by the Ghanaian authorities to the Commission in the course of the mission of May 2013.

(89)

Pursuant to Article 31(4)(b), the Commission also examined the measures taken by Ghana in respect of access of fisheries products stemming from IUU fishing to its market.

(90)

In this respect, the Commission observed that Ghana has not taken appropriate measures in respect of the recurrent access of fisheries products stemming from IUU fishing to its market and industry. In the framework of the implementation of the IUU Regulation by the Member States, the Commission has collected evidence that fishery products (mainly tuna species) illegally caught or transhipped in the ICCAT area or in the EEZs of neighbouring countries by Ghanaian and foreign vessels have been landed in the Ghanaian port of Tema, they have further been sold by Ghanaian fishing operators to Ghanaian companies, processed by Ghanaian plants without being detected or prevented from entering the Ghanaian supply chain by the competent Ghanaian authorities.

(91)

In view of the situation explained in this Section of the Decision, the Commission considers that the recurrence of IUU fishing carried out by Ghanaian vessels and by vessels operating the maritime waters of Ghana is demonstrated.

(92)

In view of the situation explained in this Section of the Decision 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 (4) of the IUU Regulation, that Ghana has failed to discharge the duties incumbent upon it 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 and has not taken sufficient action to counter documented and recurring IUU fishing by vessels previously flying its flag, and it has failed to discharge the duties incumbent upon it under international law as market State to prevent access of fisheries products stemming from IUU fishing to its market.

(93)

With respect to whether Ghana cooperates effectively with the Commission and the EU Member States on investigations of IUU fishing and associated activities, evidences gathered by the Commission indicate that Ghana failed to fulfil its flag State obligations as set out under international law.

(94)

In particular, the Commission analysed how Ghana has cooperated in the framework of the procedures provided for in the IUU Regulation, whether Ghana has taken effective enforcement measures in respect of operators responsible for the detected IUU fishing activities as referred in recitals 83 to 85 and whether sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing have been applied.

(95)

In respect of both its cooperation and enforcement duties, the situation of several Ghanaian-flagged tuna vessels operating in contravention to ICCAT conservation and management measures or in breach of national laws and regulations of neighbouring countries (in particular, Togo, Benin, Ivory Coast and Nigeria) is recalled. In relation with these concrete cases, the Commission has collected evidence proving that Ghana repeatedly failed to provide any response or adequate responses to requests of assistance transmitted by Union’s Member States under the IUU Regulation. The Commission considers that the unauthorised fishing activities of these Ghanaian vessels fishing in the exclusive economic zone of neighbouring coastal States constitute a violation of Article 62(4) of UNCLOS, as these activities have been performed without complying with terms and conditions established in the laws and regulations of those coastal States. In addition, the Commission established in the course of the mission in May 2013 that Ghana has not communicated the detected infringements to the neighbouring coastal States directly concerned by these unlicensed fishing activities targeting highly migratory species in their waters, which constitutes a breach of its cooperation obligations under Article 64 of the UNCLOS.

(96)

In view of this situation, the Commission observed that Ghana failed to effectively control these fishing activities and failed to detect recurrent violations of international and national rules committed by its vessels. The Commission established that Ghana had no information on where and in which foreign waters its fishing vessels actually operate. These elements further demonstrate the lack of ability of Ghana as flag State to monitor and control the fishing activities of its fleet, and to assume jurisdiction over each ship flying its flag as provided for in Article 94 of the UNCLOS.

(97)

It is also foreseen that for vessels reported to have engaged in activities undermining the effectiveness of RFMO conservation and management measures, ICCAT Contracting States have recourse to RFMO procedures to deter such vessels until such time as appropriate action is taken by the flag State.

(98)

The performance of Ghana with respect to fishing vessel registration is also not in accordance with the recommendations in points 34 and 44 of the IPOA IUU which advise flag States to ensure that fishing vessels entitled to flag their flag do not engage in or support IUU fishing, and invite flag States to adopt measures to ensure that no vessel be allowed to fish unless so authorised in conformity with national legislation within areas of national jurisdiction.

(99)

In particular, in the course of the mission carried out in May 2013, the Commission has collected evidence that Ghana, before April 2013, had no procedure in place to verify and check information provided by the Ghanaian economic operators on the fishing operations covered by the catch certificates validated by Ghana. Based on this element and on the corroborating information provided by Member States' competent authorities, the Commission established that Ghana is not in a position to exercise an effective control on the fishing activities of its fishing fleet and that Ghana encounters significant difficulties in ensuring reliable certification of the fishery products caught by its fishing vessels. In the course of the on-the-spot mission carried out in May 2013, the Commission observed that some corrective actions have been taken, as from April 2013, in order to improve the reliability of the catch certification system. Nevertheless, the Commission considers that, due to the absence of real control and monitoring of the fishing activities of the Ghanaian fleet, the new procedures set up in April 2013 have not yet sufficiently addressed the enforcement problems detected.

(100)

In this respect, verifications and inspections carried out by Member States on fishery products covered by Ghanaian catch certificates allowed the detection of recurrent IUU fishing activities conducted by Ghanaian tuna vessels and highlighted that Ghana validated catch certificates without real verifications and checks of information submitted by the economic operators. Consequently, several importations of fishery products caught under illegal conditions by Ghanaian vessels were rejected at the Union border by several Member States of the Union.

(101)

In addition, the Commission has collected evidence confirming that Ghana is not in a position to cooperate with the Union to provide feedback on presumed IUU fishing activities carried out by its vessels operating within the ICCAT area. In this respect, the Commission has established that Ghana was not in a position to provide EU Member States with geographical positions of its fishing vessels operating in the ICCAT area for the period before 1 October 2012, in violation of ICCAT Recommendation 03-14 (22). The Commission observed that during the abovementioned period Ghana did not install VMS devices on board tuna fishing vessels operating in the ICCAT area and that Ghana did not impose any kind of reporting obligation of information to its fishing vessels in contradiction with the paragraphs 3, 4 and 5 of ICCAT Recommendation 03-14. This situation explains that Ghana was not in a position to appropriately investigate, provide feedback or follow up to presumed IUU fishing and associated activities detected by the EU Member States.

(102)

The abovementioned facts described in recitals 92 to 100 indicate that Ghana as flag State failed to comply with the conditions of Article 94(2)(b) of 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.

(103)

The performance of Ghana with respect to cooperation with other States is also not in accordance with the recommendations in point 28 of the IPOA IUU which advises States to coordinate their activities and cooperate directly in preventing, deterring and eliminating IUU fishing, in particular, by developing cooperative mechanisms that allow, inter alia, rapid responses to IUU fishing.

(104)

The performance of Ghana with respect to its monitoring, control and surveillance is also not in accordance with the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing activities. The Commission observed that the described situation has prevented Ghana to effectively cooperate with the EU Member States. Ghana was neither in a position to provide responses to their requests, nor in a position to investigate, provide feedback or follow up to presumed IUU fishing detected.

(105)

In addition to this lack of capacity to investigate, provide feedback or follow up to presumed IUU fishing, the Commission observed that Ghana also failed to take effective enforcement measures and sanctions against vessels and economic operators involved in the violations and infringements as described in recitals 83 to 85. In this respect, the Commission observed in the course of the on-the-spot mission of May 2013 that Ghana has set up an interministerial committee to investigate and take enforcement actions in relation to the abovementioned alleged breaches, but no concrete progress has been observed so far.

(106)

On the basis of fisheries regulations and the annual reports on monitoring, control and surveillance communicated by Ghana for the last three years, the Commission observed that Ghana has a legal framework which foresees dissuasive system of sanctions, but up until very recently almost no sanctions were concretely applied, while procedures of enforcement and prosecution do not deliver results.

(107)

Furthermore, the Commission established in the course of the mission of May 2013 that the Ghanaian Ministry of Fisheries and Aquaculture Development has no legal service in charge of suing individuals or companies liable for IUU fishing activities. In this respect, the Commission established that the legal procedures in place under Articles 115 and 116 of the Ghanaian Fisheries Act 2002 provide for the competence of Justice Courts to deal with contraventions of fisheries law and regulations, except where under consent of the public prosecutor administrative penalties can be applied to offenders. The Commission observed also that Ghanaian enforcement and sanctioning legal procedures present significant implementation issues (e.g. excessive duration of the procedures; poor results in terms of infringements detected and sanctions applied). In this context, the Commission considers that the current legal enforcement and prosecution procedures in place do not allow the competent Ghanaian authorities to take effective enforcement measures, in particular they do not allow to impose effectively sanctions of sufficient severity to deprive the offenders of the benefits accruing from IUU fishing.

(108)

The abovementioned facts described in recitals 103 to 106 constitute evidence of the inability of Ghana as flag State to exercise its full jurisdiction over its fishing vessels and indicate that Ghana failed to comply with the conditions of Article 94(2)(b) 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.

(109)

Furthermore, on the basis of information retrieved by the Commission missions, it can be concluded that Ghana does not have an updated registry. Ghanaian authorities reported that the country’s register has 327 fishing vessels placed under the Ghanaian flag. Nevertheless, this number is not in line with the data obtained by the Commission mission, according to which the number of Ghanaian vessels with a valid fishing licence amounts to 117. In this respect, given the apparent inconsistency between the number of fishing vessels flagged to Ghana and the number of vessels holding a Ghanaian fishing licence, in the course of the mission carried out in May 2013, the Ghana Maritime Authority (GMA) acknowledged the necessity to verify and update the Ghanaian register of fishing vessels. In view of this situation, the Commission considered that Ghana has failed to comply with its duties as flag State under international law, in particular in view of the Article 94(2) of the UNCLOS related to the obligation of every flag State to maintain a reliable register of ships flying its flag.

(110)

The performance of Ghana with respect to fishing vessel registration is also not in accordance with the recommendations in points 36 and 38 of the IPOA IUU which advise flag States to avoid the flagging of vessels with a history of non-compliance, and invite flag States to deter vessels from reflagging for the purpose of non-compliance with conservation and management measures or provisions adopted at a national, regional or global level.

(111)

The performance of Ghana with respect to effective enforcement measures is also not in accordance with the recommendations in point 21 of the IPOA IUU which advises States to ensure that sanctions for IUU fishing by vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and to deprive offenders of the benefits accruing from such fishing. Furthermore, Ghana has not implemented a national plan of action to fight against IUU, thus not complying with the recommendations in points 25, 26 and 27 of the IPOA IUU.

(112)

In the course of the mission of May 2013, the Commission established that Ghanaian laws and regulations do not foresee the obligation for third-country fishing vessels operating in Ghana under Ghanaian fishing licences to report their VMS positions to the competent Ghanaian authorities. Furthermore, Ghana does not require foreign vessels operating in its EEZ to receive a Ghanaian fishing licence. The Commission considered that under such circumstances Ghana as coastal State cannot ensure an effective control and monitoring on the activities of third-country fishing vessels operating in its waters, as VMS is universally considered as a reliable tool to monitor fishing activities. The recurrent IUU fishing activities reported in the monitoring, control and surveillance reports communicated by Ghana for the last three years confirm this analysis. In particular, these official reports highlight that industrial or semi-industrial Ghanaian vessels are often arrested or punished by the Ghanaian authorities for illegal fishing activities in area reserved for artisanal fishermen (area below 30 m depth). In this context, the Commission considers that this absence of control and monitoring by Ghana on these vessels operating in its maritime waters creates favourable conditions for IUU fishing activities in the Ghanaian EEZ.

(113)

In the same manner, in the course of the mission of May 2013, the Commission observed that the competent Ghanaian authority in charge of monitoring, control and surveillance of fishing activities in the Ghanaian EEZ does not have the means to conduct operations and inspections at sea. The Fisheries Commission exclusively depends on the logistical means and patrol vessels of the Ghanaian Navy. In addition, the Commission observed that coordination and cooperation between the Fisheries Commission and the Ghanaian Navy is insufficient to ensure an efficient monitoring, control and surveillance system on fishing activities in the Ghanaian EEZ. The Commission considers that this lack of means to intervene at sea jeopardises any enforcement effort and creates favourable conditions for development of the verified IUU fishing activities in the Ghanaian EEZ.

(114)

The Commission observed a significant imbalance between the administrative capacities of Ghana to monitor and control fishing activities of industrial vessels operating in its waters, and the number of fishing licences delivered to industrial vessels authorised to operate in the Ghanaian EEZ (117 industrial fishing vessels are authorised to operate in the Ghanaian EEZ in addition to 12 000 artisanal vessels). This situation confirms that, compared to the size of the fishing activity taking place in waters under its jurisdiction, Ghana has an insufficient enforcement capacity. In addition, the Commission observed that Ghana has not adopted a national fisheries management plan, based on the best scientific information available in line with Articles 61(2) and 62(4) of the UNCLOS.

(115)

As a consequence of the facts described in recitals (111) to (113), the Commission considers that Ghana as coastal State failed to comply with its duties as foreseen in Articles 61(2) and 62(1) of the UNCLOS which stipulate that a coastal State, must promote the objective of optimum utilisation of the living resources in its EEZ, taking into account the best scientific evidence available to it in particular by ensuring through proper conservation and management measures the maintenance of these living resources and avoiding their overexploitation.

(116)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the Commission has taken into account the recurrent and repetitive IUU fishing activities of Ghanaian-flagged vessels until 2013.

(117)

In this respect, it should be noted that Ghana has been identified several times by ICCAT letters of concern, from 2011 to 2013, for its failure to fully and effectively comply with its obligations in accordance with Recommendations 09-01, 10-01 and 11-01 on a multi-year conservation and management programme for bigeye tuna. The Ghanaian fleet operating in the ICCAT area has not complied for several years with the catch limits of bigeye tuna imposed by ICCAT and Ghana has not taken effective action to correct the situation of systematic overfishing of bigeye tuna. Ghana is not complying with the quota limits on bigeye catches allocated under ICCAT Recommendations. Even though the Commission acknowledges that Ghana has made progress on the payback of past years overfishing of bigeye tuna, it observes that Ghana has only blocked the expansion of its industrial fishing capacity but has not taken measures to reduce it in order to comply with the ICCAT Recommendations mentioned above. In this context, the Commission considers that this continuous overcapacity of the Ghanaian tuna fishing fleet in ICCAT area and the subsequent over harvesting situation of bigeye tuna (in particular in 2008, 2009 and 2010) constitutes a structural manifestation of IUU fishing carried out by the Ghanaian tuna fishing fleet in the ICCAT area and are in breach of the general conditions set out under Article 62 of the UNCLOS on the utilization of the living resources.

(118)

With respect to the existing capacity of the Ghana authorities, it should be noted that, according to the United Nations Human Development Index (23), Ghana is considered as a medium human development country (135th in 186 countries). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 of the European Parliament and of the Council of 18 December 2006 establishing a financing instrument for development cooperation (24) where Ghana is listed in the category of low income countries.

(119)

Notwithstanding the analysis under recital (117) it is noted that on the basis of information derived from the mission in May 2013 it can be considered that Ghana authorities are sufficiently empowered by its legal framework but the system lacks primarily the necessary administrative and organisational structures to facilitate performance of their statutory duties. This situation also constitutes a factor undermining the capacity of the competent authorities to cooperate with other countries and pursue enforcement actions.

(120)

In view of the situation explained in this Section of the Decision 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 Ghana has failed to discharge the duties incumbent upon it under international law as flag and coastal State in respect of cooperation and enforcement efforts.

(121)

Ghana has ratified the UNCLOS. It has signed in the FAO Port State Measures Agreement in 2010. Furthermore, Ghana is a Contracting Party to ICCAT. Ghana is also a member of FCWC, which is a subregional fisheries advisory body.

(122)

The Commission analysed all information on Ghana’s compliance with the FCWC provisions. A regional plan of action on IUU fishing in the maritime zones of the FCWC member countries (FCWC RPOA) was adopted in December 2009. Following the FCWC IUU working group meeting in April 2010, certain actions, in particular on the methods to register vessels, cooperation between FCWC member countries to raise awareness, an agreement on measures of port States and the establishment of a list of industrial vessels authorised in each FCWC member country, to be taken at national level were adopted (25). In addition, during the first session of the Ministerial Conference of the FCWC held in December 2009, it was decided in the ‘Accra Declaration to combat illegal, unreported and Unregulated fishing’ that all the member countries of the FCWC fully adhere to the IPOA.

(123)

Ghana has not undertaken any steps towards the implementation of the FCWC RPOA or the recommendations of the first meeting of the IUU working group of FCWC.

(124)

The Commission analysed any information deemed relevant with respect to the compliance of Ghana with its obligation stemming from its status of ICCAT contracting party.

(125)

It is recalled that ICCAT issued a letter of identification to Ghana regarding its reporting deficiencies in 2010 (26). In that letter, Ghana was identified under its Recommendation by ICCAT concerning trade measures (Recommendation 06-13) for its failure to fully and effectively comply with its obligations in accordance with the ICCAT Recommendation 05-09 on compliance with statistical reporting obligations. In the same letter, ICCAT highlighted that Ghana did not provide all necessary data and reports by the established deadlines, such as: data on Task I and Task II, compliance tables, information related to the large-scale tuna longline vessels management standard. The ICCAT Secretariat expressed its concern about effective implementation of Recommendation 08-01, specifically about Ghana's significant overharvest of bigeye tuna for the third consecutive year. The ICCAT Secretariat also highlighted that although Recommendation 09-01 did adjust the 2010 bigeye tuna catch limit for Ghana, in part via a transfer from the European Union, Ghana was required under Recommendation 08-01 to adjust for 2008 overharvest in 2009 and/or 2010. Furthermore, Ghana was required to address this issue in the action plan required under Recommendation 09-01. It was requested also to review its data collection and reporting procedures with regard to ICCAT requirements.

(126)

In the ICCAT letter of identification of Ghana issued in 2011 (27), ICCAT decided to maintain its identification under Recommendation 06-03 concerning trade measures. Indeed, Ghana was still failing to fully and effectively comply with its obligations in accordance with the ICCAT Recommendation 05-09 on compliance with statistical reporting obligations and the Recommendation amending the Recommendation on a multi-year conservation and management programme for bigeye tuna (Recommendation 09-01). In the same letter ICCAT highlighted that Ghana again did not provide all necessary data and reports by the established deadlines, such as: data on Task I (referring to the fleet characteristics), internal actions report for vessels over 20 m, large-scale tuna longline vessel management standard and ICCAT statistical document programme reports. The ICCAT Secretariat also expressed its concern on Ghana not taking effective action to control harvests of Atlantic bigeye tuna within the limits as specified by Recommendation 08-01 and 09-01 and on a possible violation of the capacity limits as described in the Recommendation 04-01. Ghana was again encouraged to review its data collection and reporting procedures with regards to ICCAT requirements. It was requested to provide to the ICCAT Secretariat a preliminary data improvement plan, including in particular information about monitoring programmes, observer programmes, port inspections, and sampling programmes for artisanal fisheries in order to ensure that Ghana meets all its ICCAT reporting requirements by the respective deadlines. It was also requested to submit to the ICCAT Secretariat a preliminary quota payback plan for Ghana's bigeye tuna fishery, taking into account the bigeye tuna measures adopted in 2010 and fleet capacity information.

(127)

In the letter of concern of ICCAT issued in 2012 (28), Ghana was identified as not fully and effectively complying with its obligations in accordance with the ICCAT Recommendation on Compliance with Statistical Reporting Obligations (Recommendation 05-09) and with the ICCAT Recommendation on a multi-year conservation and management programme for bigeye tuna (Recommendation 04-01). In the same letter ICCAT highlighted that Ghana again did not provide the Task I fleet characteristics (form ST01) and the report on internal actions on 20 m vessels. The compliance tables were submitted after the deadline. The issue of overharvesting of southern swordfish in breach of the Recommendation 09-03 was also put forward. In relation to Ghana's failure to implement the ICCAT's conservation and management measures for bigeye tuna, Ghana was requested to redress these failures, and namely: to implement effective measure to prohibit at-sea transhipments by Ghanaian purse seine vessels; to comply with the fleet capacity provisions of Recommendations 09-01 (29), 10-01 (30) and 11-01 (31); to implement the payback plan for overharvest of bigeye tuna established in Recommendation 11-01; to cooperate with Ivory Coast with its inspections of Ghanaian-flagged vessels in the Port of Abidjan.

(128)

In the letter of concern of ICCAT issued in 2013 (32), the ICCAT Secretariat expressed its concern that Ghana did not deploy sufficient efforts to fully implement the ICCAT Recommendation 11-01 on a multi-annual conservation and management programme for bigeye and yellowfin tunas. ICCAT acknowledged the progress made by Ghana on the payback of past year overharvests of bigeye tuna but requested Ghana to continue efforts towards the full implementation of applicable vessel limits and its bluefin tuna catch management plan and also in the data reporting as required under Recommendation 11-01.

(129)

Furthermore, in relation to the factual elements identified by the inspection services of the Commission, the Commission informed with a letter of 23 April 2013 the ICCAT Secretariat on the factual elements that might lead to possible non-compliance of Ghana with the ICCAT Recommendation 08-09 on the process for the review and reporting of compliance information. The ICCAT Secretariat informed Ghana with a letter of 30 April 2013 (33) on the possible non-compliance in relation to ICCAT Recommendation 12-06 relating to transhipment at sea; to ICCAT Recommendation 11-16 on access agreements and the ICCAT Recommendation 03-14 on VMS transmission. Ghana was invited to provide ICCAT with the findings of any investigation taken in relation to these observations on the non-compliance and any actions taken to address compliance concerns.

(130)

Furthermore, a number of elements were revealed during the missions the Commission conducted in Ghana in May and July 2013. While the VMS devices must be installed on board vessels operating within ICCAT area (in accordance with ICCAT Recommendation 03-14), problems of absence or interruption of VMS signal during fishing campaigns were detected concerning the period prior to October 2012. With respect to the operational abilities of the VMS, it was revealed that Ghana made some efforts to improve its MCS system by setting up a VMS Centre. These efforts, however, do not address sufficiently the shortcomings detected in relation with the VMS.

(131)

The VMS on board of Ghanaian vessels is not used appropriately to check if catch activities are or not in conformity with the scope of the fishing licences. This system lacks of the administrative and organisational procedures and resources for its operation: there are neither guidelines nor permanent instructions for its installation; the system cannot display in the same environment the VMS data and other sources of location data; it does not take into account any fishing protected area. There is only one access point to the VMS data which is only available to the MCS Division, thus other Ghanaian services including other administrative entities responsible for the issuance of the catch certificates (both in Accra and Tema) do not have access to these data.

(132)

In the same manner, the ICCAT Secretariat, in spite of recognising in 2011 Ghana's effort towards the transparency in its fishing activities, also expressed two major and specific concerns: the absence of an operational VMS and the persistence of illegal transhipments of tuna at sea by Ghanaian purse seiners.

(133)

Ghana received in 2012 some financial support from ICCAT Secretariat, under a memorandum of understanding (MoU), to install a new VMS system in order to comply with ICCAT rules in terms of VMS reporting. This system is operational as from 1 October 2012. However, during the progressive implementation phase of the MoU (from February to October 2012), the Ghanaian authorities did not impose any obligations on Ghana's fishing vessels operating in the ICCAT area in order to report daily positions, in contradiction with provisions of VMS ICCAT Recommendation 03-14 and with Article 47 of Ghana national Fisheries Regulations 2010.

(134)

In addition, the MCS system and the VMS Centre set up by Ghana cover only Ghana's domestic fleet. The installation of a VMS device is not established as a precondition for third-country vessels to receive a Ghanaian fishing licence. Thus, Ghanaian authorities do not receive VMS data for third-country fishing vessels operating in its waters, which creates favourable conditions to conduct IUU fishing activities in Ghana's EEZ. Ghana has omitted to report to ICCAT Secretariat on the results of the implementation of the MoU related to the installation of the VMS.

(135)

With respect to the system of authorised observers, Ghana does not fully comply with the observer scheme under ICCAT Recommendation 10-10 on the establishment of minimum standards for fishing vessel scientific observer programmes.

(136)

With respect to the implementation of the ICCAT port inspection scheme under ICCAT Recommendation 97-10, if Ghana's legal framework provides for an adequate empowerment of its authorities to carry out their duties, due to lack of experience and training of the Ghanaian fisheries inspectors, the ICCAT port inspection scheme is not implemented or enforced in Ghana.

(137)

In addition, Ghana failed to detect repeated violations of ICCAT Recommendations by vessels flying its flag in relation to illegal transhipments at sea and unlicensed fishing activities in the neighbouring EEZs. Due to the lack of skills of staff, absence of port inspection scheme and absence of guidelines and manual for inspection, inspections at ports are very poor and not efficiently carried out. The observers are not aware of ICCAT rules. Fisheries inspectors are dependent upon information and logistics provided by the economic operators being inspected. Those shortcomings contribute to the failure of Ghana to fulfil its obligations under the ICCAT Recommendation 06-11 establishing a programme for transhipment.

(138)

In the same manner, it was revealed during the Commission missions that from 2009 to 2012, several Ghanaian carrier and tuna vessels were not complying with the ICCAT Recommendation 06-11. Ghana authorities validated catch certificates with operations of forbidden transhipment at sea, signed by masters of both vessels involved. As described in the recital 126, Ghana was explicitly reminded, through a letter of concern from ICCAT Secretariat of 21 February 2012 to implement effective measures to prohibit transhipments at sea for Ghana purse seiners. As described in recital 126 the ICCAT Secretariat also informed Ghana with a letter of 30 April 2013 on the possible non-compliance in relation to ICCAT Recommendation 12-06 relating to transhipments at sea.

(139)

Further to the letter of concern of ICCAT of 21 February 2012 requesting to address failures to comply with the fleet capacity provisions according to the Recommendation 09-01, Recommendation 10-01 and the Recommendation 11-01, during its mission in May 2013 the Commission enquired about the reduction of Ghana's fishing capacity. As recognised by the Ghanaian Maritime Authority, the expansion of the fishing capacity has only been blocked, but not reduced. The Authority accepts replacement of the capacity of vessels scrapped or deregistered from Ghana's flag, but refuses to register new tuna fishing vessels under the Ghanaian flag. In this respect, Ghana has not set up efficient measures to ensure an actual reduction of this capacity, so the risk of overfishing of bigeye tuna has not been mitigated.

(140)

The shortcoming revealed by the Commission missions of May and July 2013 and additional information referred to in recitals 129 to 138 provide evidence of the failure of Ghana to fulfil its obligation as flag and coastal State laid down in Articles 62, 94 and 118 of the UNCLOS.

(141)

As described in recital 133, Ghana does not comply with its responsibilities as a coastal State as established in Article 62(4)(e) of the UNCLOS with regard to requirement to request from fishing vessels operating in its maritime waters VMS position reports. Such deficiencies in the domestic legal framework are furthermore not in line with point 24(3) of the IPOA which stipulates that States should undertake comprehensive and effective monitoring, control and surveillance of fishing from its commencement, through the point of landing, to final destination, including by implementing a VMS, in accordance with the relevant national, regional or international standards, including the requirement for vessels under their jurisdiction to carry VMS on board.

(142)

Furthermore, the actions referred to in the recitals 129 to 138 undermine the ability of Ghana to fulfil its obligations of Article 94(2)(b) 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.

(143)

Furthermore, the elements identified during the Commission missions reveal that Ghanaian procedures for vessel registration do not take into account the history of the involvement of the vessels and their owners in the IUU activities. Such approach is not in line with Article 94 of the UNCLOS.

(144)

In addition, the failure to provide information on conservation and management measures, statistics, lists of vessels and compliance tables undermines the ability of Ghana to fulfil its obligations under Article 118 of the UNCLOS which establishes the duty of cooperation among States in the conservation and management of living resources of the areas of the high seas.

(145)

The Commission analysed all information deemed relevant with respect to possible acts or omissions by Ghana that may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures.

(146)

In this respect, it should be noted that the Ghanaian legal framework foresees control measures, as for instance the fisheries regulations of 2010 that provide the obligation for Ghanaian fishing vessels to receive prior authorisation before conducting fishing operations in foreign countries. In this respect, in contradiction with this national legal framework, the Commission observed that the Ghanaian authorities have omitted to implement those obligations with the subsequent result to diminish the effectiveness of applicable laws and regulations to fight against IUU fishing in 2010, 2011 and 2012.

(147)

In the same manner, the Commission observed in the course of the mission of May 2013 that Ghana has not implemented the Article 94 of Fisheries Act 2002 which provides for the establishment of a fisheries monitoring, control, surveillance and enforcement unit with participation of all State agencies concerned. In this context, pursuant to Article 95 of Fisheries Act 2002, personnel of the Ghana Navy, Ghana Air Force and of the Water research Institute can be appointed as authorised officers to enforce fisheries law and regulations. In this respect, the Commission observed that Ghana has omitted to implement these provisions with the subsequent result to diminish the effectiveness of applicable laws and regulations to fight against IUU fishing.

(148)

The Commission observed in the course of the mission in May 2013 that before 1 October 2012 Ghana had never imposed an obligation to its tuna fishing vessels operating in ICCAT area to report geographical positions in contradiction with its obligations as Contracting Party to ICCAT as provided for in paragraphs 3, 4 and 5 of the ICCAT Recommendation 03-14. In doing so, Ghana also omitted to implement the provisions of Articles 42, 47, 48 and 49 of the Fisheries Regulations 2010. In this respect, in contradiction with this national legal framework, the Commission observed that Ghana has omitted to implement these provisions with the subsequent result to diminish the effectiveness of applicable laws, regulations and international conservation and management measures to fight against IUU fishing.

(149)

The Commission also observed in the course of the mission of May 2013 that Ghana has not implemented the Article 42 of Fisheries Act 2002 and Article 1 of Fisheries Regulations 2010 which provide for the obligation to adopt a national fisheries management and development plan. In accordance with Ghanaian law and regulations, this plan, that shall be based on the best scientific information available, shall ensure the optimum utilisation of the fishery resources thus avoiding over-exploitation, and shall be consistent with good management principles. In this respect, the Commission observed that Ghana has, in contradiction with this national legal framework, omitted to implement these provisions with the subsequent result to diminish the effectiveness of applicable laws and regulations to fight against IUU fishing.

(150)

Finally, it is pertinent to note that Ghana was also mentioned in the NMFS report (34). Ghana has been identified for failing to manage its fishing vessels consistent with conservation and management measures adopted by ICCAT and in particular Recommendation 05-09, Recommendation 11-01, Recommendation 04-01, Recommendation 11-01 and Recommendation 06-11. Furthermore, the NMFS is concerned with the capacity of Ghana to meet ICCAT capacity limitation requirements and to implement and effectively enforce prohibitions of at-sea transhipments. The NMFS also believes that Ghana needs to show progress in compliance with ICCAT recommendations by implementing the agreed payback plan for the overharvest of bigeye tuna and improving data collection. In addition, NMFS calls for improvement in the accuracy of Ghana’s catch estimates to improve the ICCAT assessment of bigeye tuna stocks.

(151)

The performance of Ghana in implementing international instruments is not in accordance with the recommendations in point 10 of the IPOA IUU which advises States, as a matter of priority, to ratify, accept or accede to the UNFSA. The Commission considers that, in the case of Ghana, which has a significant fleet of fishing vessels engaged in fishing operations concerning highly migratory species (mainly tuna in the ICCAT area), this recommendation is of particular relevance.

(152)

In view of the situation explained in this Section of the Decision 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 Ghana has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(153)

It is recalled that, according to the United Nations Human Development Index (35), Ghana is considered as a medium human development country (135th in 186 countries). It is also recalled that, according to Regulation (EC) No 1905/2006, Ghana is listed in the category of low-income countries. Account taken of the ranking of Ghana, the Commission analysed if the information gathered by the Commission could be linked with its specific constraints as a developing country.

(154)

Although specific capacity constraints may exist in general with respect to control and monitoring, the specific constraints of Ghana derived from its level of development cannot justify an absence of specific provisions in its national legal framework referring to international instrument to combat, deter and eliminate IUU fishing activities. Furthermore, those constraints cannot justify Ghana's failure to effectively enforce the domestic legislation to sanction infringements related to IUU fishing. In addition, there are indications that the failure to comply with international rules depends more on the lack of cooperation between the national authorities as well as of the effective implementation of its national rules and international law. Finally, it is noted that Ghana's level of development is higher than the level of the countries in this region of the world entailing as logical consequence that Ghana is better placed compared to many other African countries to fulfil its responsibilities under international law as flag, coastal, port or market State.

(155)

It is also pertinent to note that the Union has already funded a specific technical assistance action in Ghana with respect to the fight against IUU fishing (36). No evidence exists that Ghana has taken into consideration the advice provided in order to rectify the shortcomings concerned.

(156)

In view of the situation explained in this Section of the Decision 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 there are no relevant development constraints in this case. Account taken of the nature of the established shortcomings of Ghana, the development level of that country cannot excuse or otherwise justify the overall performance of Ghana as flag or coastal State with respect to fisheries and the insufficiency of its action to prevent, deter and eliminate IUU fishing.

(157)

In view of the situation explained in this Section of the Decision 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 Ghana with respect to fisheries are not impaired by its level of development.

(158)

Curaçao was part of the Netherlands Antilles (Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba) prior to 10 October 2010. Netherlands Antilles ceased to exist as of 10 October 2010. The notification of the Netherlands Antilles as flag State was accepted by the Commission on 12 February 2010. Curaçao notified their competent authorities for the purposes of the IUU Regulation on 28 March 2011.

(159)

From 4 to 8 March 2013, the Commission, with the support of EFCA, carried out a mission to Curaçao in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(160)

The mission sought to verify information concerning Curaçao's arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by its fishing vessels, measures taken by Curaçao in order to implement its obligations in the fight against IUU fishing and to fulfil its requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(161)

The report of the mission was handed over to Curaçao's representatives on 8 March 2013.

(162)

A subsequent mission of the Commission to Curaçao was conducted from 3 to 6 June 2013.

(163)

The Commission submitted, on 5 June 2013, written observations on the established situation in the country.

(164)

Curaçao provided comments with letter received on 31 July 2013.

(165)

Curaçao is a Cooperating Non-Contracting Member of ICCAT. Curaçao has ratified the UNCLOS.

(166)

In order to evaluate the compliance of Curaçao with its international obligations as flag, port, costal or market State set out by the UNCLOS and ICCAT, the Commission sought and analysed all relevant information for the purpose of this exercise.

(167)

To this vein, the Commission used information derived from available data published by RFMOs, in this case ICCAT. Furthermore, in evaluating the compliance of Curaçao with its international obligations as flag, port, costal or market State as well as the performance of Curaçao regarding rules laid down by RFMOs, the Commission has also noted the intention of Curaçao, expressed during the Commission mission in June 2013, to develop its international fisheries and to become a full member of ICCAT.

(168)

The Commission, pursuant to Article 31(3) of the IUU Regulation, analysed the responsibilities of Curaçao as flag, port or coastal State. For the purpose of this review, the Commission took into account the parameters listed under Article 31(4) to (7) of the IUU Regulation.

(169)

With respect to Curaçao-flagged IUU vessels, it is noted that, on the basis of information retrieved from RFMOs vessel lists, there are no such vessels in provisional or final IUU lists and no evidence of past cases of Curaçao-flagged IUU vessels that would enable the Commission to analyse the performance of Curaçao with respect to recurring IUU fishing activities. Nevertheless, it is pertinent to note that, on the basis of information received by the Commission, several incidents of alleged IUU activities of two vessels flying Curaçao's flag occurred. Namely, in 2011, the Ministry of Economic Development (MED) was notified by the governments of Japan and New Zealand that a vessel flying the flag of Curaçao was catching demersal shark species using deep-water gillnets within the area covered by the Convention on the Conservation and Management of High Seas Fisheries Resources in the South Pacific Ocean (SPRFMO). The use of deep water gillnets was prohibited in that area under the measures agreed in the Final Act of the International Consultations on the Establishment of the Proposed South Pacific Regional Fisheries Management Organisation (‘the Final Act’) of 2009 (37). Moreover, catch certificates were validated for this vessel by Curaçao for the period in question. Curaçao has opened an investigatory procedure as regards the vessel and took precautionary measures to stop its fishing activity in the SPRFMO convention fishing area. However, no sanctions were imposed on the vessel. In conclusion, acting in abovementioned way, Curaçao was in breach of Articles 117 and 118 of the UNCLOS.

(170)

The Commission analysed whether Curaçao has 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 have been applied.

(171)

The Commission missions held in March and June 2013 in Curaçao established a number of elements that revealed non-compliance of Curaçao's performance in the execution of its role of flag State. In particular, the flag State's duty includes an obligation to effectively exercise its jurisdiction and control in administrative, technical and social matters over ships flying its flag, as foreseen by Article 94 of the UNCLOS and the IPOA IUU rules. The abovementioned Commission missions identified significant problems regarding Curaçao's abilities in the field of fisheries and fleet management system, regarding the quality of implementation of monitoring, control and surveillance measures and procedures.

(172)

Firstly, based on the information retrieved during the March and June 2013 Commission missions it was also established that there is an insufficient system of sanctions against IUU activities which are not effective in securing compliance and do not discourage violations wherever they occur and do not deprive offenders of the benefits accruing from their illegal activities.

(173)

Secondly, the missions disclosed significant deficiencies in the traceability scheme of Curaçao. Indeed as it was established by the various documentary checks conducted on-the-spot, Curaçao's authorities are not in a position to ensure the traceability at all stages of fishing activities: catch, transhipments, landing, transport, export and trading.

(174)

Thirdly, Curaçao's control over its long-distance fleet contains substantial deficiencies. Control over this fleet and its catches is the responsibility of the Ministry of Economic Development (MED) that is also responsible for issuing, suspending and withdrawing fishing licences. Curaçao has no FMC. Given the technical characteristics of Curaçao's long-distance fleet, the capacities of Curaçao's control over its long-distance fleet behaviour and fulfilment of obligations and rules show substantial weaknesses, in administrative, organisational and technical terms. Although Curaçao's purse seiners are equipped with modern means of transmission, the limited functionalities of the VMS software installed in MED premises coupled with a paper-based system of data collection do not allow the necessary level of checks and balances of the submitted data.

(175)

Fourthly, the Curaçao authorities do not ensure a continuous monitoring of VMS data received. As for the technical and operational weaknesses, the software that is used to read and collect VMS data has limited functionalities. Support vessels are equipped with VMS and should systematically transmit data, while carrier vessels are equipped with VMS, but are obliged to transmit data only whenever they carry fish.

(176)

Fifthly, in course of its missions of March and June 2013, the Commission observed that coordination and cooperation regarding data reporting between Curaçao flagged long-distance vessels and the competent authorities of Curaçao are insufficient to ensure an efficient monitoring, control and surveillance system on fishing activities. This element demonstrates the lack of ability of Curaçao as flag State to monitor and control the fishing activities of its fleet and to assume jurisdiction over each ship flying its flag as provided for in Article 94 of the UNCLOS. Such a performance of Curaçao with respect to its monitoring, control and surveillance is also not in accordance with the recommendations in point 24 of the IPOA IUU which advises flag States to ensure comprehensive and effective monitoring, control and surveillance of fishing activities.

(177)

Sixthly, the insufficient human resources, the lack of verification of the accuracy of data transmitted by vessels on a daily basis, as well as the non-existence of specified verification procedures and dedicated verification in guidelines or manuals of procedures for MED officials, constitute a breach of Curaçao's international obligations as a flag State, especially having regard to Article 94 of the UNCLOS. In the same manner, Curaçao failed to implement the IPOA IUU recommendations, in particular point 34.

(178)

In view of the situation described in recitals 173 to 176, Curaçao failed to demonstrate that it fulfils the conditions of Article 94(2)(b) of the UNCLOS stipulating that a flag State assumes jurisdiction under its internal law over each ship flying its flag and its master, officers and crew.

(179)

Curaçao failed also to comply with its international legal obligations stemming from Article 118 of the UNCLOS, which regulates the cooperation of States in the conservation and management of living resources. Namely, the absence of a formally established Fishing Monitoring Centre, operating on a permanent basis and which would present a single contact point, represents a serious obstacle to efficient cooperation with third countries that are involved in transhipment and landing of tuna species operated by Curaçao vessels.

(180)

Therefore, Curaçao failed to demonstrate that it cooperates and coordinates activities with other States in preventing, deterring and eliminating IUU fishing in the way set out in point 28 of the IPOA IUU, in particular point 28(6), stipulating that States should develop cooperative mechanisms that allow, inter alia, rapid responses to IUU fishing.

(181)

With respect to the catch certification scheme, in the course of the Commission missions of March and June 2013, it was noted that the management system for validation of catch certificates in Curaçao present some loopholes. Curaçao validated catch certificates without real verifications and checks of information being performed by Curaçao authorities on the spot, which is contrary to requirements set by ICCAT Recommendation 09-11 (38). Also, it has been identified a complete lack of cooperation of Curaçao authorities with the landing States (i.e. Ivory Coast, Senegal, Ghana). The catch certification scheme is solely based on documentary checks. Vessel movements at sea can be monitored via VMS but the basic system of vessel movements does not allow for gathering of historical data and it does not issue alerts. These facts demonstrate failure of Curaçao to comply with rules set by Articles 118 and 119 of the UNCLOS.

(182)

With respect to the validation of catch certificates, other means of controls than VMS are not available. Consequently, for the vessels fishing permanently outside Curaçao waters and landing or transhipping most of the catches in Ivory Coast and Angola, Curaçao authorities solely rely on reporting of the operators. No controls are carried out in the landing or transhipment ports. Moreover, no cooperation is established with the countries of landing or transhipment.

(183)

Curaçao has not developed a catch reporting system which insures the registering of all catches in real time, nor has it developed an electronic logbook scheme. Therefore, it has failed to enable full control and traceability, efficient cross checks of VMS positions, landings, information on landings and transhipments. Thus, Curaçao's performance in this matter is not aligned with the recommendations set out in point 28 of the IPOA IUU.

(184)

The National Decree on Fisheries on the High Seas (Landsbesluit visserij op volle zee — PB No 109) from 7 October 2010 is the basic fisheries law in Curaçao governing the international fishery sector. The 2010 National Decree lays down the international licence scheme. The legal text includes provisions on the operation of transhipment, the reporting obligations and the VMS.

(185)

The 1991 National Fisheries Decree (Visserijlandsverordening) is the basic national fisheries law providing fishing rules and regulations in the territorial waters of Curaçao and its fishing zone.

(186)

With respect to the legal and administrative framework of Curaçao, the Commission missions in March and June 2013 have revealed that there are deficiencies in Curaçao established structures and systems. Namely, there is no register of infringements and sanctions established by Curaçao that would facilitate the process of verifying previous IUU activities of the vessels' owners. The overall level of administrative sanctions and fines is not sufficient and thus does not constitute a coherent and deterrent sanction scheme. According to Curaçao's submission, its legislation does not contain measures for administrative enforcement. Therefore, it is not possible to issue an administrative fine to individuals liable of IUU infringements or for Curaçao's Government to take pre-emptive and enforcement measures. Acting in above described way, Curaçao has failed to comply with Article 94 of the UNCLOS.

(187)

In the course of the Commission missions of March and June 2013 and following the submission of Curaçao, the Commission observed that, in spite of the recognised deficiency of Curaçao's legal and administrative framework, the competent Curaçao authorities failed to undertake actions to initiate necessary procedures regarding the adaptation of an IUU Code of Conduct and the revision of Curaçao fisheries law.

(188)

Therefore, the evidence that the Commission has gathered reveals that the performance of Curaçao with respect to effective enforcement measures is also not in line with the recommendations set out in point 21 of the IPOA IUU, advising States to ensure that sanctions for IUU fishing by vessels are of sufficient severity to effectively prevent, deter and eliminate IUU fishing and deprive the benefits accruing from such fishing.

(189)

With respect to the existing capacity of the Curaçao's authorities, there is no information on Curaçao's level of development in the United Nations Human Development Index. However, according to the World Bank's World Development Indicator (39), Curaçao is considered as high income level country. Account taken of its position, it is not considered necessary to analyse the existing capacity of Curaçao's competent authorities.

(190)

On the basis of information derived from the Commission missions in March and June 2013, it cannot be upheld that Curaçao's authorities are lacking financial resources. They rather lack the necessary legal and administrative environment and empowerments to perform their duties. Furthermore, it should also be highlighted that the Commission, in line with the recommendations of the IPOA IUU in points 85 and 86 advising on special requirements of developing countries, has assisted Curaçao in the application of the EU IUU Regulation through a specific technical assistance programme financed by the Commission (40).

(191)

In view of all the above it is concluded, that pursuant to Article 31(3) and Article 31(5)(b) and (d) of the IUU Regulation, Curaçao has failed to discharge its duties incumbent upon it under international law as flag State in respect of cooperation and enforcement efforts.

(192)

Curaçao has ratified the UNCLOS. Furthermore, Curaçao is a cooperating non-contracting party of ICCAT since 17 November 2010.

(193)

With a view to further explain the implementation of international rules by Curaçao, it is pertinent to note that the Kingdom of the Netherlands, on behalf of the Netherlands Antilles, ratified the UNCLOS in 2007 and that all the legislative instruments adopted by the Netherlands Antilles before 10 October 2010 are enforced in Curaçao.

(194)

The Commission analysed all information deemed relevant with respect to the status of Curaçao as cooperating non-contracting party of ICCAT. The Commission also analysed all information deemed relevant with respect to the agreement of Curaçao to apply conservation and management measures adopted by ICCAT.

(195)

The Commission analysed available information from ICCAT on compliance performance. For this, the Commission used the ICCAT Compliance Summary Tables (41).

(196)

With respect to 2012, the ICCAT Conservation and Management Measures Compliance Committee (COC) identified Curaçao for its failure to comply with its obligation to timely communicate reports, statistics and data to ICCAT. In the compliance summary tables of the Report of COC meeting (42), Curaçao was identified for late or incomplete submission of the following documents: Task I fleet characteristics regarding annual reports/statistics; internal actions (vessels 20 m +) regarding conservation and management measures; information on access agreements; transhipment report; compliance tables regarding quotas and catch limits. The abovementioned failures to comply with ICCAT rules and recommendations (mainly ICCAT Recommendation 11-12), in combination with the other elements highlighted in Sections 7.1 and 7.2 of this Decision, demonstrate the existence of deficiencies in Curaçao's fulfilment of its flag State obligations relating to management and conservation measures, as established in Articles 117 and 118 of the UNCLOS.

(197)

With respect to the fleet policy, the Commission established that all of Curaçao's industrial vessels are owned by foreign shipowners and for Curaçao it is only possible to identify the beneficial owner of the vessel. The Commission believes that the existence of information on the beneficial owners’ coordinates does not represent a sufficient proof of the existence of a genuine link between the flag State and the vessels, and considers this situation as not compliant with the provisions set out for the nationality of ships in Article 91 of the UNCLOS.

(198)

Furthermore, on the basis of information retrieved in the course of the missions of March and June 2013, it is established that the registration of fishing vessels operating on the high seas is done by one authority (Maritime Authority of Curaçao — MAC), while, at the same time, all management and monitoring is being done by another authority (Ministry of Economic Development — MED). The existence of such division of functions would require close coordination and cooperation between competent authorities. The Commission noticed during its missions in March and June 2013 that no such cooperation exists between MAC and MED. The elements identified during the abovementioned Commission missions also reveal that Curaçao procedures for vessel registration do not take into account the history of the involvement of the vessels and their owners in the IUU activities. It was revealed that Curaçao's competent authorities, at the moment of registration of the vessel, do not perform any checks of the vessel's history or on any potential vessel's involvement in IUU activities. This constitutes a failure by Curaçao to fulfil requirements regarding the registration or flagging of vessels set by ICCAT Resolution 05-07, and is not in line with Article 94 of the UNCLOS. The performance of Curaçao with respect to fishing vessel registration is also not in accordance with the recommendation in points 36 and 38 of the IPOA IUU which advise flag States to avoid flagging vessels with a history of non-compliance, and invite flag States to deter vessels from reflagging for the purpose of non-compliance with conservation and management measures or provisions adopted at a national, regional or global level. In addition, the Curaçao's performance described above regarding the fishing vessels registration is not in line with the recommendations of point 39 of the IPOA IUU that advises States to take all practicable steps, including denial to a vessel of an authorisation to fish and the entitlement to fly that State’s flag, to prevent ‘flag hopping’; that is the practice of repeated and rapid changes of a vessel’s flag for the purposes of circumventing conservation and management measures or provisions.

(199)

In addition to the above, along the national register, Curaçao also operates bareboat register allowing vessels under another flag to temporarily fly Curaçao's flag. It is pertinent to note that Curaçao's authorities, in case of registration of a non-Curaçao vessel in the Curaçao bareboat register, simply inform the other flag State. In these cases, Curaçao's authorities do not carry out further verifications on operators and/or beneficial owners of the vessels. It should also be noted that there have been cases where Curaçao-flagged carrier vessels were registered with ICCAT by another country (Philippines), without notification to the Curaçao's authorities. In conclusion, such a practice of Curaçao is not in compliance with Article 94 of the UNCLOS stipulating the responsibilities of flag States with respect to vessels carrying their flags. It is to be noted in this respect that the International Transport Workers' Federation (ITF) considers Curaçao as a flag of convenience (43).

(200)

Finally, it should be also noted that Curaçao has not developed a national plan of action against IUU fishing contrary to the recommendations in points 25 to 27 of the IPOA IUU.

(201)

In view of all the above, it is concluded that Curaçao, pursuant to Article 31(3) and (6) of the IUU Regulation, has failed to discharge its duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(202)

It is recalled that Curaçao is not listed under Annex II to Regulation (EC) No 1905/2006, that classifies the States according to their level of development, nor is there any information on Curaçao's level of development in the United Nations Human Development Index. To the contrary, according to the World Bank’s World Development Indicator from 2013 (44), Curaçao is considered as a high-income country.

(203)

Account taken of findings of missions and the World Bank's World Development Indicator of Curaçao, its position could not be considered as a country having specific constraints directly deriving from its level of development. No corroborated evidence was established to suggest that failure of Curaçao to discharge the duties incumbent upon it under international law is the result of lacking development. In the same manner, no concrete evidence exists to correlate the established shortcomings to monitoring, control and surveillance of fishing activities with the lack of capacities and infrastructure abilities.

(204)

It is also pertinent to note that the Commission has already funded, in 2011, a specific technical assistance action in Curaçao with respect to the fight against IUU fishing (45). No evidence exists that Curaçao has taken into consideration the advice provided in order to rectify the shortcomings concerned.

(205)

In view of all the above, it is concluded, in line with the provisions of Article 31(7) of the IUU Regulation, that the development status and overall performance of Curaçao with respect to fisheries are not impaired by its level of development.

(206)

In view of the conclusions reached above with regard to the failure of Curaçao, Ghana and Korea to discharge the duties incumbent upon them under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, those countries should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified as countries the Commission considers to be non-cooperating third countries in fighting IUU fishing.

(207)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Curaçao, Ghana and Korea of the possibility of their being identified as non-cooperating third countries. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Curaçao, Ghana and Korea. In the interest of sound administration, a period should be fixed within which those countries may respond in writing to the notification and rectify the situation.

(208)

Furthermore, the notification to Curaçao, Ghana and Korea of the possibility of being identified as countries 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,

27.11.2013   

EN

Official Journal of the European Union

C 346/50

1.

On 18 November 2013, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which Ackermans & van Haaren NV (‘AvH’, Belgium) acquires within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the whole of Aannemingsmaatschappij CFE NV (‘CFE’, Belgium) by way of purchase of shares.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.7089 — Ackermans & Van Haaren/Aannemingsmaatschappij CFE, to the following address:

27.11.2013   

EN

Official Journal of the European Union

C 346/52

1.

On 18 November 2013, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertakings Gestamp Eolica S.L. (Spain) controlled by Corporación Gestamp, S.L. (Spain), and Banco Santander SA (Spain) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of a newly created joint venture (‘JV’, Spain) by way of purchase of shares.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the EC Merger Regulation. However, the final decision on this point is reserved. Pursuant to the Commission Notice on a simplified procedure for treatment of certain concentrations under the EC Merger Regulation (2) it should be noted that this case is a candidate for treatment under the procedure set out in the Notice.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by email to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.7070 — Gestamp Eolica/Banco Santander/JV, to the following address:

27.11.2013   

EN

Official Journal of the European Union

C 346/53

1.

On 19 November 2013, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the undertaking Renova Industries Ltd. (‘Renova’, Bahamas) intends to acquire, through its wholly-owned indirect subsidiary Venetos Holding AG (‘Venetos’), within the meaning of Article 3(1)(b) of the Merger Regulation sole control of the undertaking Schmolz + Bickenbach AG (‘S+B’, Switzerland) by way of a shareholders' agreement.

2.

The business activities of the undertakings concerned are:

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope the EC Merger Regulation. However, the final decision on this point is reserved.

4.

The Commission invites interested third parties to submit their possible observations on the proposed operation to the Commission.

Observations must reach the Commission not later than 10 days following the date of this publication. Observations can be sent to the Commission by fax (+32 22964301), by e-mail to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number COMP/M.6962 — Renova Industries/Schmolz + Bickenbach, to the following address: