17.6.2014   

EN

Official Journal of the European Union

C 185/1

17.6.2014   

EN

Official Journal of the European Union

C 185/2

(1)

Council 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 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, the acceptance of validated catch certificates from Third Country flag States is subject to a notification to the Commission of the arrangements for the implementation, control and enforcement of laws, regulations and conservation and management measures which must be complied with by 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)

In accordance with Article 20 of the IUU Regulation, the notification of the Independent State of Papua New Guinea (PNG) as flag State was received by the Commission as of 4 February 2010.

(10)

From 7 to 11 November 2011, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to PNG in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(11)

The mission sought to verify information concerning PNG’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 PNG 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 PNG on 15 February 2012.

(13)

The comments of PNG on the final report of the mission were received on 25 May 2012.

(14)

A subsequent mission of the Commission to PNG to follow up the actions taken in the first mission was conducted from 7 to 16 November 2012.

(15)

PNG submitted additional information on 3 January 2013.

(16)

The final report of the mission was delivered to PNG on 7 March 2013.

(17)

PNG submitted comments to the mission report of November 2012 on 5 July 2013.

(18)

A meeting took place between PNG and Commission services on 12 July 2013.

(19)

The Commission provided to PNG on 9 October 2013 written observations highlighting the need for concrete actions and reforms to address the most pertinent and urgent issues.

(20)

PNG submitted additional information by written communications dated 11 November 2013 and 4 December 2013.

(21)

A meeting took place between PNG and Commission services on 12 December 2013.

(22)

PNG submitted additional information on 6 January 2014.

(23)

PNG is a member of the Western and Central Pacific Fisheries Commission (WCPFC). PNG has ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks (UNFSA). It is Party to the South Pacific Forum Fisheries Agency (FFA) Convention (2) and to the Nauru Agreement (PNA) concerning cooperation in the management of fisheries of common interest (3).

(24)

In order to evaluate the compliance of PNG with its international obligations as flag, port, coastal or market State set out in the international agreements mentioned in the recital 23 and established by the relevant Regional Fisheries Management Organisations (RFMOs) mentioned in the recital 23, the Commission sought and analysed all the information it deemed necessary for the purpose of that exercise.

(25)

The Commission also used information derived from available data published by WCPFC as well as publicly available information.

(26)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of PNG 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.

(27)

With respect to PNG-flagged vessels it is noted that on the basis of information retrieved from RFMOs vessel lists there are no vessels in provisional or final IUU lists and no evidence of past cases of PNG-flagged vessels exists that would enable the Commission to analyse the performance of PNG with respect to recurring IUU fishing activities in accordance with Article 31(4)(a).

(28)

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

(29)

The Commission considers, on the basis of an assessment of all the information at its disposal, that PNG cannot ensure that fishery products entering PNG or PNG-based processing plants do not stem from IUU fishing. This is due to systemic problems undermining the possibility of PNG authorities to trace catches because of the lack of available official information for PNG authorities about fish landed, imported and/or processed. The main elements at the basis of the Commission’s assessment are summarised hereinafter.

(30)

The main fishing activities in waters under PNG jurisdiction are not conducted by PNG-flagged vessels, but by vessels under foreign flag, which regularly use PNG ports. In its report to the 8th session of the WCPFC Scientific Committee of 2012 (4) PNG reports that a total of 251 vessels were active in the PNG waters in 2011, namely 35 longline and 216 purse-seine vessels. Ten out of the 216 purse-seine vessels were PNG-flagged, 39 were PNG-chartered (domestic-based foreign-flagged vessels) and 167 were foreign vessels fishing under access agreements. Similar information was provided during the Commission mission. In November 2012, PNG informed the Commission that 214 purse seine vessels were authorised to fish in PNG waters with a level of total allowable catch (TAC) above 700 000 metric tons (720 000 metric tons according to the PNG presentation to the Commission during its mission in 2011 (5)).

(31)

With a view to the tuna processing industry in PNG which is expanding, the Commission analysed the situation pertaining to the activities of this industry and any impact that these operations may have in respect of access of fisheries products stemming from IUU fishing to its market.

(32)

The International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) provides guidance on internationally agreed market-related measures which supports reduction or elimination of trade in fish and fish products derived from IUU fishing. The IPOA IUU also suggests in point 71 that States should take steps to improve the transparency of their markets in order to allow the traceability of fish or fish products. Equally, the Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries (FAO Code of Conduct) outlines, in particular in Article 11, good practices for post-harvest and responsible international trade. Article 11(1)(11) requests States to ensure that fish and fishery products are traded internationally and domestically in accordance with sound conservation and management practices through improving the identification of the origin of fish and fishery products.

(33)

During its missions to PNG in 2011 and 2012, the Commission, together with the PNG National Fishery Authority (NFA) visited or met several operators of tuna processing plants established in PNG.

(34)

Processing plants receive part of their raw material from locally-based foreign-flagged vessels, which operate under chartering arrangements. In its report submitted in 2012 to the WCPFC Scientific Committee (6) PNG informed that in 2011, 39 active chartered vessels were fishing both inside and outside of PNG waters, with most effort spent in PNG waters (over 74 % on average over the past 4 years). Some of these vessels are flying the flag of a country that has been notified by the Commission on 15 November 2012 that it is considered as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing.

(35)

During the Commission mission in November 2012, the NFA reported 8 PNG-chartered vessels flying the flag of Vanuatu while one of the chartering PNG processing plants reported that 12 of its 14 operating charted vessels are flying that flag. In this respect it is recalled that catch certificates validated by Vanuatu cannot be accepted, because Vanuatu’s flag State notification in accordance with Article 20 of the IUU Regulation has not been accepted by the Commission, and consequently imports of fisheries products caught by Vanuatu vessels are not possible. In addition, Vanuatu was notified by the Commission with Commission Decision of 15 November 2012 (7) as possible of being identified as non-cooperating Third Country.

(36)

The operator of the processing plant mentioned in recital 35 provided its monthly reports on the receipt of raw materials for 2012 to the Commission, which include company information on details on the vessel, fishing trip and fish landed. PNG authorities rely on these ‘monthly receiving reports’ provided by companies as landing information, instead of performing control of landings themselves, including an official assessment of necessary details, such as landed weight per species per fishing trip per vessel. The PNG authorities confirmed at the time of the Commission mission that no controls on landings are performed, neither by fisheries nor customs authorities. Raw material caught by Third Country flagged vessels entering processing plants does neither undergo an import procedure with payment of duties nor is it placed under customs supervision until export. Traceability of such products is not possible and access to the PNG market would easily be possible without being noticed.

(37)

The processing plant operator explained, during the Commission mission in November 2012, that raw material supply for his processing activities in PNG is ensured by the mother company of the processing plant, which is based outside of PNG. The processing plant operator informs the mother company of its needs of raw material, and receives, upon payment, the required tuna catch via carrier vessels. The mother company is also responsible for the disposal of catch of the PNG locally-based foreign-flagged chartered vessels. Therefore, the PNG-based processing plant has no information on the activities of these vessels and disposal of their catch. The operator further informed the Commission that sales of unprocessed fish to other PNG-based companies may occur. PNG authorities do not perform any actual control on the information kept by the operator and has in fact never audited the company for IUU related purposes. Hence the traceability of products coming out of the processing plant cannot be guaranteed.

(38)

PNG authorities informed the Commission that chartered vessels were operating in its exclusive economic zone (EEZ) and free to export their catch. In this respect it is noted that the PNG Tuna Management Plan, Division 3, Article 36 requires landing in PNG of the catches of locally-based foreign fishing vessels for processing or transhipping from a designated port as PNG export.

(39)

Further, registration as PNG export requires usually either a prior import of the products concerned, or that the product must have PNG origin. PNG customs authorities informed the Commission during its mission that they have no information on vessel activities and rely on information provided by PNG NFA. However, customs authorities raised their concern over difficulties with some companies or shipping agents not fulfilling their customs obligations regarding the declarations of export or transhipment of fisheries products. This lack of overview of movement of goods may result in uncontrolled access of fish on the PNG market and may compromise also the reliability of certificates by PNG authorities.

(40)

In its submission of 5 July 2013, PNG recognised the need to strengthen its control and monitoring system, such as its traceability system for fishery products, introduction of landing declarations and systematic controls and enhancement cooperation with customs authorities. Similar commitments were provided from PNG during the meeting on 12 December 2013. The authorities explained that they are working on implementation of IT system, tools on port state measures and amelioration on the catch certification process. These actions would strengthen the traceability system. Nevertheless, all the information provided referred future plans without any concrete tangible result.

(41)

In addition, the traceability of products is further hindered by a lack of transparency in PNG’s national laws, registration and licensing systems.

(42)

The FAO Code of Conduct recommends transparency in fisheries laws and their preparation as well as for respective policy- and decision- making and management processes (paragraphs 6(13) and 7(1)(9) respectively). It provides principles and standards applicable to the conservation, management and development of all fisheries and covers also, amongst others, capture, processing and trade of fish and fishery products, fishing operations and fisheries research. The FAO Code of Conduct, in paragraphs 11(2) and 11(3), specifies further that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures as well as on transparent, simple and comprehensive laws, regulations and administrative procedures.

(43)

The Commission considers therefore the license as a crucial document allowing to establish operational rules and conditions (e.g. fishing areas: archipelagic waters, EEZ, access to high seas etc.), type of activity, designated ports or transhipment. It has been established and highlighted during the Commission mission in 2011 that the PNG vessel registration and licensing system lacks transparency. Eligibility rules and conditions are neither clear, nor transparent or publicly available for various types of licenses (PNG-flagged vessels, PNG-chartered vessels, and Third Country vessels under access agreements). The PNG Tuna Management Plan (8) provides only guidelines for the operation of tuna vessels and no specific conditions for such operation. PNG replied to the Commission mission report that special conditions are reserved for vessels which are considered significant to PNG national interest in respect of economic development and consistent with the development aspirations of Small Island Developing States.

(44)

This lack of transparency and clarity leads to a confusing situation with significant impact, especially because undisclosed ‘special conditions’ are applicable to approximately 80 % of PNG fishing licenses. This situation was found unchanged during the second Commission mission in November 2012.

(45)

The Commission also endeavoured to study the applicable rules on transhipments. Relevant provisions exist in the PNG Fisheries Management Act 1998 (9) (FMA), the PNG Fisheries Management Regulation 2000 (10) and the applicable WCPFC rules (11). The Commission found that there are different rules applied, depending, inter alia, on the conditions of access agreements, the conditions of the licences, the status of the vessels (domestic vessel or not), the waters that the vessels operate in (archipelagic waters or EEZ). The amount of provisions applicable is such to make it very difficult, if not impossible, for operators and authorities to understand whether a transhipment is authorised or not, and under which conditions. During its mission in November 2012, the Commission requested to the PNG authorities to provide comprehensive information about provisions applicable to transhipment operations, but such information could not be provided.

(46)

In consideration of the established lack of traceability and lack of information available to PNG authorities about the fish landed, PNG cannot ensure that fishery products entering PNG or PNG-based processing plants do not stem from IUU fishing, as presented in recitals 33 to 40. The possibility to control access of IUU products and their subsequent export is also compromised by the lack of transparency of rules and regulations in relation to registration and licensing as established in recitals 41 to 45 of the Decision – as well as by the absence of clear conservation and management measures, which will be described in recitals 76 to 82.

(47)

These deficiencies were also confirmed by the inability of the PNG authorities to explain why they endorsed, within the meaning of Article 14(2) of the IUU Regulation, the statement of a PNG tuna processing plant for canned tuna destined to the Union. Such statement can be endorsed only for fishery products which have been processed in a Third Country other than the flag State. In the given case, the physical verification of Member States’ authorities responsible for the import of fishery products revealed that the product presented by the importer as processed was in fact unprocessed, being frozen round tuna. It should be noted in this context that different market access rules and customs duties may apply for processed and unprocessed products. The Commission visited the PNG processing plant declared as exporter of the shipment in question during its mission to PNG in November 2012. The company could not provide any explanation and considers the request sent to the PNG authorities for endorsement of that processing statement as an error, in particular as it usually does not export frozen round fish. This is a concrete case where the Commission established that the PNG authorities have wrongly validated processing statements. The operator explained that this situation was an oversight and simple error but the authorities admitted that such situations could exist in other cases. This situation is another example of the lack of traceability and transparency that reveals inability to monitor the access of fisheries products stemming from IUU fishing to the PNG and other markets.

(48)

In view of the situation explained in this Section of the Decision and on the basis of all factual elements gathered by the Commission as well as the statements made by the country, it could be established that, pursuant to Article 31(3) and 31(4) (b) of the IUU Regulation, that PNG has failed to discharge the duties incumbent upon it under international law as a coastal and market State to prevent access of fisheries products stemming from IUU fishing to its market.

(49)

The Commission analysed whether PNG authorities effectively cooperate with the Commission, by providing a response to requests made by the Commission to investigate, provide feed-back or follow-up on IUU fishing and associated activities.

(50)

While PNG authorities involved in the implementation of the catch certification scheme of the EU IUU Regulation are generally cooperative to respond and provide feedback to requests for information or verification, the reliability of correctness of their replies are compromised and undermined by the lack of transparency and the little or no possibilities to ensure traceability of fishery products as established in Section 3(1) of the Decision.

(51)

In the framework of the overall assessment of the fulfilment of PNG’s duties to discharge its obligations as flag, port and coastal State, the Commission also analysed whether PNG cooperates with other flag States in the fight against IUU fishing.

(52)

To that purpose, it was established during the Commission mission of November 2012 that there was a lack of willingness from PNG authorities to cooperate with flag States of vessels operating in waters under PNG jurisdiction, as the authorities were not willing to provide flag States with information pertaining to vessels’ data. This is a clear indication that PNG does not fulfil its obligations under international law (in particular Article 7(1)(a) of the UNFSA) to ensure effective conservation and management of straddling fish stocks occurring in its waters and to ensure effective and efficient prevention of IUU fishing.

(53)

During that mission, the Commission tried to clarify regular inconsistencies of information received for EU imports of fishery products from PNG in relation to applicable conservation and management measures. The PNG authorities confirmed their awareness that information on catch certificates issued by flag States for fish directly landed in PNG for processing are regularly incorrect. This incorrect information in catch certificates is mainly due to the fact that PNG authorities do not share data available to them, in particular Vessel Monitoring Scheme (VMS) and landing declarations, with the flag State, and not even in cases where irregularities are established. Consequently, the flag State authority has to base its catch certificates on the information available to it, which may be incomplete, incorrect and not verifiable. PNG authorities however sign processing statements in full awareness that the catch certificates issued for the catch processed in PNG are incorrect.

(54)

According to Articles 63 and 64 of UNCLOS, coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. Articles 7 and 20 of the UNFSA further develop the obligation to cooperate, respectively in setting compatible conservation and management measures and in ensuring compliance and enforcement with such measures. In addition, Article 7(1)(3) of the FAO Code of Conduct recommends that States concerned in the exploitation of straddling and trans-boundary fish stocks establish a bilateral agreement of organisational arrangement to guarantee effective cooperation in order to ensure effective conservation and management of resources. This is further specified in points 28 and 51 of the IPOA IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States.

(55)

In this respect, Article 25(10) of the WCPFC Convention (12) stipulates that each member of the Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned However, PNG considers that waters under its jurisdiction are not covered by the WCPFC Convention Area, as will be examined in detail in recitals 76 to 78; this affects the implementation of this provision. The performance of PNG, as described in this section, is in breach of the obligations mentioned in recital 54, as well as of WCPFC rules.

(56)

The importance of efficient cooperation mechanisms has to be appraised in the context of the importance of the PNG fishery resource (as will be presented in recital 66), the predominant presence of foreign-flagged vessels in waters under PNG jurisdiction and the expanding processing industry as presented in recitals 30 and 31. Further, PNG processed fishery products enjoy privileged access conditions to the EU market through the Interim Partnership Agreement between the European Community and Pacific States; PNG committed itself in that context to strengthen rules, systems and processes to ensure effective conservation and sustainable development and management of fisheries (13).

(57)

In particular, in its submission to the Commission of 5 July 2013, PNG acknowledged the need for cooperation in exchanging information with flag States, in particular VMS data. Similar representations were provided during the meeting on 12 December 2013 and with the written submission on 6 January 2014. With respect to the existence and implementation of efficient enforcement measures, the Commission assessed that PNG developed a VMS and obliges all vessels flying its flag and operating in waters under its jurisdiction to carry this equipment. However, up till now the strengthening and improvement of cooperation with flag States of vessels operations in waters under PNG jurisdiction remains an unresolved critical issue. As there are many vessels flagged to Third Countries operating in the waters of PNG, access to VMS data information kept by PNG authorities is crucial for the control and monitoring of the vessels. PNG authorities have either bilateral agreements with countries or organisational arrangements with fisheries associations or companies. Up till now the situation concerning access of the relevant flag States to VMS data remains not satisfactory and complicated. According to information collected by the Commission the PNG authorities signed such agreement with the competent authority of the Philippines, which provides, inter alia, access to VMS data. Said agreement has not been implemented. PNG authorities also submitted that trough 2014 they will progressively initiate similar arrangements with the competent authorities of all Third Countries that are fishing in PNG waters. Nevertheless, they have not provided any concrete timetable on their planning.

(58)

As already described, the lack of clarity and transparency of laws and procedures, in particular in relation to vessel registration and licensing, traceability and reliability of information and data relating to landings and catch (as presented in recitals 41 to 45), as well as in relation to conservation and management of the resources (as will be described in recitals 76 to 82, makes efficient enforcement and establishment of IUU infringements impossible. This undermines also the possibility for sanctioning and effectively following-up infringements, even if all necessary enforcement powers and rights seem provided by law. Hence, in practice, PNG cannot effectively sanction offenders in such a manner as to deprive them of the benefits accruing from IUU fishing, as it is recommended in point 21 of the IPOA-IUU. The lack of clarity and transparency of laws and procedures furthermore undermines the ability of PNG to fulfil its international obligations under Article 20 of the UNFSA, in particular in answering effectively to the requests that flag States might have in implementing their obligation to sanction vessels flying their flag which are engaged in IUU fishing.

(59)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, PNG authorities are not able to ensure traceability of operations as their systems lack of clarity and transparency. As a consequence of such shortcomings, it is not possible to establish, in a reliable way, the potential dimension of IUU fishing related activities. It is however an acknowledged fact that lack of transparency combined with the impossibility of effective controls encourages illegal behaviour.

(60)

With respect to the existing capacity of the PNG authorities, it should be noted that, according to the United Nations Human Development Index (14), PNG is considered as a low human development country (156th in 186 countries in 2013), but on the threshold of a medium human development country. 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 (15) where PNG is listed in the category of a lower middle income country. The list of aid recipients of the Organisation for Economic Cooperation and Development’s (OECD) Development Assistance Committee (DAC) (OECD/DAC) as at 1 January 2013 for reporting on 2012 (16) considers PNG as a lower middle income country. In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of PNG to fulfil its cooperation and enforcement duties. Nevertheless, it should be taken into account that the human development level of PNG is increasing (from low to medium human development country) and the administrative capacity of PNG has been continuously reinforced by Union financial and technical assistance. Finally, it should be noted that the NFA enjoys, within the PNG government administration significant autonomy enabling it to develop enhanced policies in fisheries management.

(61)

The Commission notes that, on the basis of information derived from the Commission missions in 2011 and 2012, it cannot be considered that the PNG authorities are lacking financial resources but rather the necessary legal and administrative environment and ensure efficient and effective performance of their duties.

(62)

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 PNG has failed to discharge the duties incumbent upon it under international law as coastal and market State in respect of cooperation and enforcement efforts.

(63)

PNG has ratified the UNCLOS and the UNFSA. PNG is Contracting Party to WCPFC. It is Party to the FFA Convention and to the PNA concerning cooperation in the management of fisheries of common interest.

(64)

The Commission analysed all information deemed relevant with respect to the status of PNG as Contracting Member of WCPFC.

(65)

The Commission also analysed any information deemed relevant with respect to the agreement of PNG to apply conservation and management measures adopted by WCPFC.

(66)

On the basis of comprehensive information provided by PNG on the situation of tuna fishing activities in its waters, PNG tuna stocks represent about 19 % of the Western and Central Pacific Ocean (WCPO) catch and about 11 % of the global catch (17) (15 % of the world tuna catch and 50 % catch in respect to PNA according to the PNG presentation to the Commission in 2011, as mentioned in recital 30).

(67)

On the basis of the figures presented in recital 66 it appears that PNG manages important global tuna resources and thus has the responsibility, as coastal State, to ensure responsible and long-term sustainable management of this resource. Articles 61 to 64 of UNCLOS and Articles 7 and 8 of the UNFSA regulate the utilisation of living resources by the coastal State, who should promote the objective of optimum utilisation of the living resources in its EEZ, and ensure compliance of nationals of other States fishing in its EEZ with conservation and management measures, as well as cooperate with the relevant States and regional organisations involved in that fishery.

(68)

As described in recital 42, the FAO Code of Conduct recommends transparency in fisheries laws and their preparation as well as respective policy- and decision-making and management processes (paragraphs 6(13) and 7(1)(9) respectively). In paragraphs 11(2) and 11(3), it further specifies that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures, as well as on transparent, simple and comprehensible laws, regulations and administrative procedures.

(69)

In this respect, it is noted that in breach of these obligations and recommendations, the PNG legal framework lacks provisions to ensure efficient and effective management of vessels operating in waters under PNG jurisdiction. Furthermore, the legal framework does not contain clear and transparent provisions setting out applicable conservation and management measures for all types of waters under PNG jurisdiction or where these can be found there are no clear and transparent procedures setting how their implementation should be ensured. These aspects are further analysed hereinafter.

(70)

A first aspect of such a regulatory deficiency is the inadequacy of the 1998 Tuna Management Plan and the absence of a National Plan of Action against IUU fishing (NPOA IUU).

(71)

It should be noted that the Tuna Management Plan provides the legal framework for management of tuna resources and applies according to its Article 3(3) to all PNG fisheries waters, including territorial and archipelagic ones.

(72)

The PNG NFA acknowledged in its submission to the Commission of 5 July 2013 gaps in its legal framework, and issues affecting its management and control system. PNG recognised that the Tuna Management Plan of 1998 is outdated and should be reviewed taking into account changes in the fisheries sector, including, amongst others, regional and sub-regional conservation and management measures, license regimes and conditions, TAC limits, zonal management for archipelagic waters and EEZs, reference points, harvest control rules. Further, PNG also recognised that the fisheries management act and regulations should be revised accordingly.

(73)

PNG provided with its submission dated 4 December 2013 a copy of a working draft for a new Tuna Management Plan. They have also acknowledged in their submission dated 6 January 2014 the need to revise their Tuna Management Plan and address issues in conformity with international obligations and provisions. Nevertheless, the exercise described is still on the consultative process within PNG and without final output. The established fact is that the existing Plan is obsolete and hence in breach of the obligations set out in Articles 61(2) to (5), 62 (1) and 64 of the UNCLOS concerning optimum utilisation of resources through proper conservation and management measures.

(74)

Besides being outdated, the PNG Tuna Management Plan of 1998 does not reflect the reality of the PNG fishing operations, activities and industry, despite the stated requirement of its constant review (Article 4 of the PNG Tuna Management Plan, Article 28 of the PNG Fisheries Management Act). The plan provides a legal framework for activities of 100 purse seine tuna vessels, but PNG omitted to expand its coverage to reflect the actual operation of more than 200 vessels.

(75)

It should also be noted that, contrary to the recommendations in points 25, 26 and 27 of the IPOA IUU, PNG has not developed a NPOA IUU. This was recognised by PNG in its submission to the Commission of 5 July 2013.

(76)

A second aspect of the regulatory deficiency is the absence of clear conservation and management measures adopted by PNG, on the basis of the best scientific advice and in accordance with its obligations under UNCLOS, UNFSA and WCPFC, in relation to all the waters under its national jurisdiction, including its archipelagic waters. Indeed, it has been established during the missions of the Commission in 2011 and 2012 that conservation and management rules lack transparency and clarity (as developed in recitals 77 to 82) and appear neither compatible nor based on best scientific advice (as developed in recitals 83 to 89).

(77)

Waters under PNG jurisdiction are referred to as territorial sea, archipelagic waters and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean, including waters under jurisdiction of PNG.

(78)

PNG however informed the Commission that it considers that waters under its national jurisdiction (territorial sea, archipelagic waters, EEZ) are not covered by the Convention area, even though WCPFC delegated implementation of its conservation and management measures to its contracting parties. Also, while the PNA limit fishing effort with allocation of vessel days (Vessel Day Scheme (VDS)) applicable in all EEZs of the parties to the agreement, this limitation does not apply to PNG territorial and archipelagic waters.

(79)

Pursuant to Articles 61 to 64 of the UNCLOS, Articles 5, 7, 8, 9, 10 of the UNFSA and the overall objective and relevant rules in the WCPFC Convention (in particular Articles 2, 5, 7, 8) it is a clear duty, responsibility and obligation of a coastal State to adopt measures compatible to those applying in the region and in the high seas to ensure the long term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilisation. The FAO Code of Conduct, in particular paragraphs 7(1), 7(2), 7(3) and 8(1), also recommends good practices to achieve these obligations.

(80)

In its reply to the Commission on the mission report of 2011, PNG explained that all Commission members of WCPFC are subject to agreed conservation and management measures of WCPFC and referred to the fisheries management plans published on the official website of PNG NFA (18), which should be applicable in all waters under PNG jurisdiction (territorial sea, archipelagic waters, EEZ), in particular for straddling stocks in order to ensure the same level of conservation in all waters of their migration. It appears however that such plans cover only activities in the PNG EEZ and no corresponding measures are regulating PNG archipelagic waters.

(81)

This situation leads to a lack of clarity and transparency which, in addition to the lack of transparency of PNG laws and procedures in relation to registration and licensing of fishing vessels, as explained in Sections 3(1) and 3(2) of the Decision, compromises and undermines the possibility for effective implementation of efficient conservation and management of the fisheries resources of PNG. It is current PNG practice to include the applicable conservation and management measures in undisclosed license conditions for tuna vessels. Hence, different measures may apply, depending also on undisclosed, individual license conditions.

(82)

In conclusion, no clear, transparent and compatible conservation and management rule exist for PNG archipelagic waters, in breach of the obligations referred to in recital 79.

(83)

Pursuant to Article 61 of the UNCLOS, Articles 5 and 6 of the UNFSA, and Articles 5 and 6 of the WCPFC Convention, coastal States must determine the allowable catch of the living resources in their EEZ, based on the best scientific evidence available to it and on the basis of a precautionary approach; coastal States also have to ensure through proper conservation and management measures that living resources and stocks in the EEZ and other waters under their jurisdiction are not endangered by over-exploitation. The FAO Code of Conduct, in particular paragraphs 7(3), 7(4) and 7(5), recommends good practices to comply with these obligations.

(84)

As PNG considers that WCPFC rules do not apply to waters under its jurisdiction, it is not entirely clear what data is collected and reported to WCPFC; this may not cover assessments of all PNG fisheries waters. Reports of the WCPFC Scientific Committee regularly raise the issue of data gaps. For example, in the report of its 7th session, the WCPFC Scientific Committee noted under point 89 some inconsistencies among fleets in the reporting of skipjack and yellowfin, bigeye tuna on purse-seine logsheets and considering the importance, for scientific purposes, of accurate purse-seine catch composition data, recommended that this problem be referred to the Technical and Compliance Committee (19). Under point 37, it emphasised the uncertainty in purse-seine species composition, and urged PNG to continue improving estimates of purse-seine composition data. In its 8th session, the WCPFC Scientific Committee again raised issues of data gaps and inconsistencies (20), in relation to catch and catch composition, commented on reporting obligations under chartering arrangements and issued management recommendations for improvement (21). It also addressed the lack of data submissions or weak data of some contracting parties, some of which are operating in waters under national jurisdiction of PNG.

(85)

The reports also state that an observer coverage of 100 % as required by WCPFC is not yet achieved, and PNG is not yet compliant with it, according to its last annual report submitted to the Scientific Committee in 2012 (22).

(86)

The WCPFC Scientific Committee advised in its 7th meeting, that, if recent fishing practices for skipjack tuna continue, catch rate levels are likely to decline and catch should decrease as stock levels are fished down to Maximum Sustainable Yield level. Therefore, increases of fishing effort should be monitored (23).

(87)

PNG does not apply any WCPFC conservation and management measures in its archipelagic waters and has no compatible measures in place. Taking into consideration the highly migratory and straddling nature of tuna resources and the importance of tuna stocks and fishing activities in PNG archipelagic waters, which are an important geographical spawning area for tuna species, this situation puts at stake any conservation effort on the tuna stock as a whole. Therefore, PNG does not ensure application of conservation and management measures in all waters under its jurisdiction in a manner compatible with requirements of WCPFC, and in accordance with its obligation to ensure that species under the jurisdiction of the coastal State are not endangered by over-exploitation.

(88)

The Commission also assessed any act or omission by PNG that may have diminished the effectiveness of applicable laws, regulations or international conservation and management measures.

(89)

In this respect, the PNG Tuna Management Plan sets a limit of TAC of 338 000 metric tons per year (Article 33) and limits the number of licenses for tuna purse seiners to 100 (Article 32(2)). The current level of catch is however above 700 000 metric tons and the number of licensed purse seine vessels operating in PNG waters is more than 200. The Commission considers therefore that the existing measures fail to comply with its international obligations regarding conservation and management. As tuna is a straddling and highly migratory stock, conservation and management measures have to be consistent and compatible in the entire area of migration to be effective and sustainable, this being also the overall objective of the WCPFC Convention (24); the current Tuna Management Plan does not permit to fulfil this obligation.

(90)

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 PNG has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(91)

It is recalled that, according to the United Nations Human Development Index (25), PNG is considered as a low human development country (156th in 186 countries in 2012), but on the threshold of a medium human development country. 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 (26) where PNG is listed in the category of a lower middle income country. Nevertheless, according to the most recent information, the OECD/DAC of 1 January 2013 for reporting on 2012 (27), PNG is considered as a lower middle income country.

(92)

It should be noted that the notification of PNG as flag State was received by the Commission in accordance with Article 20 of the IUU Regulation as of 4 February 2010. PNG 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.

(93)

The Commission informed PNG of the various shortcomings it detected during its first mission conducted in November 2011. One year later, during its second mission in November 2012, the Commission found the situation in PNG unchanged.

(94)

In its submission of 5 July 2013 PNG NFA acknowledges the continuous assistance provided by the EU to the PNG fisheries authorities through various regional and sub-regional programmes; technical assistance was also provided with respect to the fight against IUU fishing in 2011 (28).

(95)

The Commission has therefore taken into consideration the development constraints of PNG and offered adequate time to PNG to implement actions in order to remedy its non-compliance with its obligations under international law in a coherent, effective and non-detrimental way since the year 2011.

(96)

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 of PNG fisheries governance may be impaired by its level of development. However, account taken of the nature of the established shortcomings of PNG, the assistance provided by the Union and actions taken to rectify the situation, no corroborating evidence could be established to suggest that the failure of PNG to discharge the duties incumbent upon it under international law is the result of lacking development. The development level of PNG, which is increasing, does not appear such as excuse or justify the overall performance of PNG as flag and in particular coastal State with respect to fisheries, and the insufficiency of its action to prevent, deter and eliminate IUU fishing and to ensure respective efficient monitoring, control and surveillance of fishing activities in waters under its jurisdiction.

(97)

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 PNG with respect to fisheries are not impaired by its level of development.

(98)

In view of the conclusions reached above with regard to the failure of Papua New Guinea to discharge the duties incumbent upon it under international law as flag, port, coastal or market State and to take action to prevent, deter and eliminate IUU fishing, that country should be notified, in accordance with Article 32 of the IUU Regulation, of the possibility of being identified as a country the Commission considers to be non-cooperating Third Countries in fighting IUU fishing.

(99)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify Papua New Guinea of the possibility of it being identified as a non-cooperating Third Country. The Commission should also take all the démarches set out in Article 32 of the IUU Regulation with respect to Papua New Guinea. In the interest of sound administration, a period should be fixed within which that country may respond in writing to the notification and rectify the situation.

(100)

Furthermore, the notification to Papua New Guinea of the possibility of being identified as a country 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,

17.6.2014   

EN

Official Journal of the European Union

C 185/17

(1)

Council 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 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 the Philippines (the Philippines) as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 15 January 2010.

(10)

From 23 to 27 January 2012, the Commission, with the support of the European Fisheries Control Agency (EFCA), carried out a mission to the Philippines in the context of administrative cooperation provided for in Article 20(4) of the IUU Regulation.

(11)

The mission sought to verify information concerning the Philippines’ 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 the Philippines in order to implement its obligations in the fight against IUU fishing and to fulfil the requirements and points pertaining to the implementation of the catch certification scheme of the Union.

(12)

The Philippines submitted additional information on 3 February 2012.

(13)

The final report of the mission was sent to the Philippines on 21 February 2012.

(14)

The comments of the Philippines on the final report of the mission were received on 24 March 2012.

(15)

A subsequent mission of the Commission to the Philippines to follow up the actions taken in the first mission was conducted from 25 to 27 June 2012.

(16)

The Commission provided to the Philippines on 28 June 2012 written observations on the Philippines plan to address IUU issues.

(17)

The Philippines submitted additional information on 4 October 2012, 12 December 2012 and 14 February 2013.

(18)

A videoconference took place between the Philippines and Commission Services on 8 February 2013.

(19)

The Philippines submitted additional information on 22 April 2013.

(20)

A technical meeting took place in Brussels on 25 April 2013, where the Philippines submitted additional information.

(21)

A further meeting between the Philippines and Commission services was held on 11 June 2013 in Brussels.

(22)

The Philippines submitted additional information on 14 June 2013. With this submission the Philippines authorities updated the Commission on the progress made on their action plan to address IUU issues and submitted the draft National Plan of Action on IUU fishing and the initial draft bills to revise the Fisheries Law.

(23)

The Commission, with the assistance of the European Fisheries Control Agency (EFCA), and at the request of the Philippines authorities, has organised a capacity building workshop in Manila from 22 to 26 July 2013, focusing on port state measures and risk analysis.

(24)

The Philippines submitted additional information on 11 November 2013.

(25)

A meeting between the Philippines and Commission services was held on 22 November 2013 in Brussels.

(26)

In December 2013 the Commission received the information from the Philippines authorities that it has signed the Executive Order adopting the National Plan of Action for IUU. The authorities have furthermore provided the Commission with the Memorandum of Understanding signed on 9 December 2013, creating a Joint Committee of Fisheries Cooperation between the Philippines and Papua New Guinea authorities.

(27)

In February 2014, the Commission received a submission containing in particular the National Plan of Action for IUU, the new draft for the revision of the Fisheries Law and the draft regulation on traceability. The draft Fisheries Law had been tabled in the Senate and the Philippine House of Representatives.

(28)

A meeting between the Philippines and Commission services was held on 5 March 2014 in Brussels. The Philippines submitted additional information on 25 March 2014, 3 May 2014 and 15 May 2014.

(29)

Throughout the exchange described above, the Philippines have adopted a constructive approach in cooperating with the Commission. Indeed, significant progress in addressing the main challenges identified during the on spot missions was made. Nonetheless, there are still series of shortcomings which have not been fully addressed.

(30)

The Philippines is a member of the Western and Central Pacific Fisheries Commission (WCPFC), the International Commission for the Conservation of Atlantic Tunas (ICCAT) and the Indian Ocean Tuna Commission (IOTC). The Philippines is also a cooperating non-member of the Commission for the Conservation of Southern Bluefin Tuna (CCSBT). The Philippines has ratified the 1982 United Nations Convention on the Law of the Sea (UNCLOS).

(31)

In order to evaluate the compliance of the Philippines with its international obligations as flag, port, coastal or market State set out in the international agreements mentioned in the recital 30 and established by the relevant Regional Fisheries Management Organisations (RFMOs) mentioned in the recital 30, the Commission sought and analysed all the information it deemed necessary for the purpose of that exercise.

(32)

The Commission used information derived from available data published by the relevant RFMOs as well as publicly available information.

(33)

Pursuant to Article 31(3) of the IUU Regulation, the Commission analysed the duties of the Philippines 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.

(34)

With respect to Philippines-flagged vessels, on the basis of information retrieved from RFMOs vessel lists there are no vessels in provisional or final IUU lists and no evidence of past cases of Philippines-flagged vessels exists that would enable the Commission to analyse the performance of the Philippines with respect to recurring IUU fishing activities in accordance with Article 31(4)(a).

(35)

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

(36)

The Commission considers, on the basis of an assessment of all the information at its disposal that the Philippines cannot ensure that fishery products entering the Philippines or Philippines-based processing plants do not stem from IUU fishing. This is due to systemic problems undermining the possibility of the Philippines authorities to trace catches because of the lack of available official information about fish landed, imported and/or processed. The main elements at the basis of the Commission’s assessment are summarised hereinafter.

(37)

The Philippines have a large fishing fleet which catches fish in waters under its jurisdiction, as well as on the high seas and in the waters under jurisdiction of other States. According to information provided during the Commission’s first mission in 2012 and to public available information, the fleet amounted to around 9 300 commercial fishing vessels and around 470 000‘bancas’ (small artisanal fishing vessels) (2). Artisanal fishermen do not operate in waters beyond national jurisdiction and their catches are at least in part exported to the EU. The Philippines has a large long distance fleet which includes, as of March 2014, 68 vessels targeting tuna (‘tuna vessels’) registered on the IOTC list of authorised fishing vessels and 18 tuna vessels registered on the ICCAT list of authorised fishing vessels. According to the information submitted by the Philippines in their Annual Fishery Reports of 2012 and 2013 to the WCPFC, the Philippines had 622 fishing vessels (including transport and carrier vessels) registered as of 1 July 2012 and 722 fishing vessels registered as of 11 June 2013 with that RFMO (3). The Philippines vessels target mainly tuna. The yearly catch data of tuna submitted by the Philippines include all the tuna catch unloaded in Philippine ports, regardless of where they were caught and does not distinguish those catches in accordance with their provenance or in accordance with the flag of the catching vessel. This creates doubts about the capacity to effectively trace those catches, as it will be further explained in the recitals 46 to 55.

(38)

Based on the data from the Philippines Bureau of Fisheries and Aquatic Resources (BFAR), the usual international fishing grounds of Philippine vessels are: the Celebes Sea, the Indonesian waters, the Malaysian waters, the Palau waters, Papua New Guinea, Western Pacific, and the areas of ICCAT and IOTC. The Philippines has concluded fisheries agreements with Papua New Guinea, Kiribati and the Salomon Islands. According to information provided during the meeting of 5 March 2014, most of the fishing vessels (purse seiners) are operating in Papua New Guinea’s waters (46) and the high seas pockets of WCPFC (33). So far only two fishing vessels are operating in the Solomon Islands. The catches landed in Papua New Guinea also supply the EU market (canned tuna). Moreover, as of March 2014, there are six active Philippine vessels operating in IOTC area and eight in ICCAT area. The only foreign chartered fishing vessels are fishing carriers and they only operate in the WCPFC area. Indeed, no foreign fishing vessels are currently allowed to fish in the Philippines’ EEZ.

(39)

The composition of the Philippine fleet, in combination with the variety of sources of fishery products entering in the supply chain, and with an insufficient traceability system, entails a clear risk of access of IUU products to the Philippines market.

(40)

With a view to the tuna processing industry in the Philippines, the Commission analysed the situation pertaining to the activities of this industry and any impact that its operations may have in respect of access of fisheries products stemming from IUU fishing to its market.

(41)

The International Plan of Action to prevent, deter and eliminate illegal, unreported and unregulated fishing (IPOA IUU) provides guidance on internationally agreed market-related measures which supports reduction or elimination of trade in fish and fish products derived from IUU fishing as well as suggests in point 71 that States should take steps to improve the transparency of their markets in order to allow the traceability of fish or fish products. Equally, the FAO Code of Conduct for Responsible Fisheries outlines, in particular in Article 11, addresses good practices for post-harvest and responsible international trade. Article 11(1)(11) requests States to ensure that fish and fishery products are traded internationally and domestically in accordance with sound conservation and management practices through improving the identification of the origin of fish and fishery products.

(42)

Processing plants receive their raw material from Philippines-flagged vessels operating in the waters under national jurisdiction of the Philippines, on the high seas and in waters under the jurisdiction of third States, as well as from foreign-flagged vessels landing fish in the Philippines and from imports.

(43)

Some of the vessels landing fish in the Philippines are flying the flags of Korea and Papua New Guinea. In this respect it is recalled that Korea has been notified by the Commission on 26 November 2013 (4) that it is considered as possible of being identified as non-cooperating Third Countries pursuant to Council Regulation (EC) No 1005/2008 establishing a Community system to prevent, deter and eliminate illegal, unreported and unregulated fishing, whereas Papua New Guinea (PNG) was notified by the Commission on the same date as the Philippines. Fish also originates from Philippines fishing companies operating in Papua New Guinea (5).

(44)

Fish imported and processed in the Philippines can furthermore originate from Third Countries, including from countries not notified by the Commission such as Vanuatu, Kiribati and the Federated States of Micronesia (6). In this respect it is recalled that Vanuatu, Kiribati and Federated States of Micronesia are not able to export fishery products to the European Union as their flag State notifications in accordance with Article 20 of the IUU Regulation have not been accepted by the Commission.

(45)

In line with the basic principles of Article 11(1)(11) of the FAO Code of Conduct for responsible Fisheries the Philippines should be able to monitor origin of fish and fisheries products and consequently guarantee that EU non-compliant fish is not exported to the EU. However, the Philippines does not implement the traceability scheme which would be needed to avoid that it imports and re-exports raw material and fish products from non-notified countries and countries identified as non-cooperating countries to the EU. A working traceability system would indeed be necessary from the stage of landing to that of export, or from the stage of import to subsequent export. However, such a system is not in place in the Philippines and the lack of control and monitoring of fishing activities in particular of landing, the dearth of inspections at sea and in port, the lack of checks on the logbooks entail that IUU fishing products may have easy access to the Philippines, and the EU market. In addition, it is common business practice that fish stemming from Philippines flagged vessels is captured in the waters of Third Countries and subsequently either landed to Third Countries for further processing, or transhipped in the waters of Third Countries and subsequently sent for further processing in another country. Therefore, many transactions at risk take place outside the waters of Philippines. Philippines authorities are expected to have full responsibility of their vessels in accordance with Article 94 UNCLOS. However, the Philippines does not implement any measure needed to ensure that authorities are controlling the veracity of information and traceability of transactions pertaining to their vessels activities.

(46)

The Philippines adopted the Fisheries Administrative Order No 241 on the implementation of the Vessel Monitoring System in the High Seas. Nevertheless, the Philippines does not have operational access to the necessary information on position or activities of some of its own vessels operating in Third Countries waters, such as in Papua New Guinea. This impairs the Philippines’ ability to assume its full responsibilities as flag State regarding the correct issuing of catch certificates. A more detailed analysis of problems related to monitoring, control and surveillance is undertaken in Section 3.2.

(47)

While landing declarations are crucial for traceability in order to guarantee control and hence not to lose track of the input and output from the companies, they are not used for all catches landed in the Philippines. To be fully reliable, the content of such a document (in terms of quantities of fish caught and species) must be controlled and confirmed by an independent authority; relying on the figures provided by the company, as the Philippines does in many occasions, is not sufficient. Also, in order to effectively monitor the fishing activities, the filling of landing declarations should be a requirement for fishing vessels, wherever they land their catch, whereas currently, this is only a requirement for landings in the Philippines. The Philippines’ authorities have not implemented any coherent set of measures on documentary checks for landings or transhipments taking place in Third Countries. With regards to catches originated in PNG, the Commission has established during its first mission in the Philippines in 2012 that the authorities were not always aware if fish was landed in PNG or transhipped in PNG waters before being sent to the Philippines.

(48)

The Philippines have introduced in their legislation a catch certification scheme. Section 13 of the Fisheries Administrative Order No 238 on Rules and Regulations Governing the Implementation of Council Regulation (EC) No 1005/2008 on the Catch Certification Scheme established the ‘catch validation certificate’ (CVC), renamed as ‘catch origin landing declaration’ (COLD) by Fisheries Administrative Order No 238-1. The use of COLD, a kind of landing declaration, is compulsory only for vessels landing in a particular port in the Philippines; this excludes application of Order No 238-1 to Philippine flagged vessels landing catch in other countries, which is a regular occurrence.

(49)

For commercial fishing vessels, a fish landing certificate is filled in at landing and signed by BFAR inspectors. The problem is that the landing certificate includes information on catching vessels even when catches are landed by carriers. Therefore, inspectors can be certifying landings of fishing vessels still at sea without any information about the fishing operations. Also, the current fish landing certificate system does not ensure sufficient traceability, as it does not link all available and relevant information with each other, such as the landing vessel and the processing plant to which the catches are destined.

(50)

In the case of artisanal fisheries, there are almost no controls at sea or at the landing point; fish catch reports are not signed by local authorities but are certified by the processing plants on receipt of the raw material. The authorities explained that due to lack of resources it is very rare that a government agent from the relevant authority is present during landings. Hence, in the absence of an official representative of the Authorities at the time the fish catch report is filled in, there can be several landings declared for one fishing vessel mixing catches from registered and licensed vessels with catches from artisanal vessels non-licensed and non-registered. This is problematic as such reports are one of the main documents used for the issuance of simplified catch certificates.

(51)

The BFAR relies on information provided by the operators or processing plants, instead of verifying and validating the data in catch certificates based on its own assessment. The Philippines have failed to develop a coherent control scheme to review the companies’ traceability procedures. For example, despite the large number of documents requested prior to validating the catch certificate (regular and simplified), the BFAR cannot verify whether the weight indicated in the catch certificate is correct as it does not carry out any control inside factories. Therefore, the validation of the catch certificate can be qualified as being ‘blind’ and the risk that IUU catches are channelled into export streams is real.

(52)

The Commission first mission in 2012 revealed occurrences of lack of control over quantities processed, where the quantities obtained after processing were mainly the same than the ones before processing. In the case of canned tuna this is impossible as some parts of the body of the fish need to be discarded, and may indicate a possible introduction of IUU products into the production and export streams.

(53)

During the first mission of the Commission in 2012, it was also established that companies requesting a catch certificate are informally authorised to issue a catch certificate number, which must be a series of specific codes as prescribed by BFAR (to allow identification of e.g. the exporter or region) and a consecutive serial number. In the absence of a database or electronic system, there is no control over these numbers, representing a certain risk for abuse of the same number being used for different consignments.

(54)

The problem of traceability is strengthened by practices of uncontrolled transhipment at sea. Access of fishery products to the Philippines’ market is indeed possible through carrier vessels and, in view of the deficiencies on the control and traceability of the landings explained in recital 49, there is a risk of importing fish stemming from IUU fishing to the Philippines. Transhipment is widespread, as most of the fishing operations of the commercial fleet, at the exception of big longliners operating in the IOTC area, are supported by carrier boats, which load fish from fishing vessels known as catchers and bring it to a port or processing facilities.

(55)

In this respect it must be recalled that the lack of control on transhipment undermines the ability of the authorities to control the catches made by purse seiners and, therefore, creates a risk of under-reporting of catches. The limited presence of patrol vessels, the limited coverage by on-board observers (except during the fish aggregating devices (FAD) closure period, e.g. summer time) and the current weak operational status of the VMS may also favour IUU fishing activities. There are also weaknesses in the control of artisanal fisheries, such as limited control at landing, and limited surveillance at sea. Furthermore, the licence system is still not implemented in all municipalities.

(56)

The Philippines authorities have recognised in various submissions the deficiencies of their systems with respect to traceability. In their submission of 25 February Philippines has presented a regulation of traceability. However, until now the Commission has not observed any tangible progress with respect to traceability.

(57)

Hence, as seen above in recitals 46 to 54, the lack of controls over the catch certificates of imports and over processing plants as well as the number of channels through which the fish can be sourced are incentives for the long-distance fleet to export IUU fishery products together with legal fish, whether domestic catches or foreign ones. The limited control over the activities at sea (fishing and transhipment) further strengthens the problem, as will be examined in recitals 67 to 75 in Section 3.2.

(58)

The Food and Agriculture Organization (FAO) Code of Conduct for Responsible Fisheries (FAO Code of Conduct) recommends transparency in fisheries laws and their preparation as well as for respective policy- and decision- making and management processes (paragraphs 6(13) and 7(1)(9) respectively). It provides principles and standards applicable to the conservation, management and development of all fisheries and covers also, amongst others, capture, processing and trade of fish and fishery products, fishing operations and fisheries research. The FAO Code of Conduct, in paragraphs 11(2) and 11(3), specifies further that international trade in fish and fishery products should not compromise sustainable development of fisheries, should be based on transparent measures as well as on transparent, simple and comprehensive laws, regulations and administrative procedures.

(59)

Although the Philippines is aiming at establishing a joint registration system of fishing vessels, there is currently a vessel registration system at the registration authority (Maritime Industry Authority (MARINA)) and a fishing licensing system. As assessed during the first Commission mission in 2012, there are significant shortcomings in the registration system of vessels. A problem of inconsistence in the number of vessels recorded by the MARINA and the two licensing authorities (Ministry of Agriculture (BFAR)/Local Governments Units (LGUs)) exists, as well as a lack of structured cooperation between these entities. Following the Commission missions, BFAR and MARINA concluded Memorandum of Understanding on their cooperation. Furthermore, a high number of small vessels fishing in municipal waters are not registered by the responsible LGUs (this number is even estimated up to 50 %) making their control difficult. Furthermore, the Commission established during its missions that there are also shortcomings in management of fishing licences since the numbers on issued licences and data recorded by the authorities are incomplete.

(60)

The conditions for vessels registration should be linked to fishing licenses, as established in Article 40 IPOA-IUU, and should be clear, transparent and publicly available. However, in the Philippines, a big discrepancy was observed between the numbers of commercial fishing vessels registered and those licensed in the country. Indeed, according to the MARINA only 3 700 fishing vessels including artisanal boats were registered in 2010 although almost 8 000 commercial fishing vessels were licensed in 2011. Therefore, the database managed by the MARINA is not updated as there are more licensed fishing vessels than registered ones, which is actually impossible. Including artisanal and commercial boats in the same database is not appropriate considering that LGUs are not sending accurate data on a regular basis. As a result, the overall figure is incorrect. This leads to the conclusion that the register is not up-to-date.

(61)

The variety of types of fishing vessels (operating in municipal fisheries and commercial fisheries, further subdivided in small, medium and large vessels) as well as of fishing licences (issued by BFAR for commercial fisheries vessels and discretionarily issued by LGUs for artisanal fisheries vessels) and the resulting complexity of the licensing system undermines the possibility to trace fishing activities and the monitoring, control and surveillance efforts. The lack of reliable and complete information on vessel registration and licenses affects directly the possibility to issue correct catch certificates.

(62)

With the established lack of traceability and lack of information available to the Philippines authorities about the fish landed, these latters cannot ensure that fishery products entering the Philippines or the Philippines-based processing plants do not stem from IUU fishing, as presented in recitals 43 to 56.

(63)

In view of the situation explained in this Section of the Decision and on the basis of all factual elements gathered by the Commission as well as the statements made by the country, it could be established, pursuant to Article 31(3) and 31(4) (b) of the IUU Regulation, that the Philippines has failed to discharge the duties incumbent upon it under international law as a coastal and market State to prevent access of fisheries products stemming from IUU fishing to its market.

(64)

The Commission first analysed whether the Philippines authorities effectively cooperate with the Commission, by providing a response to requests made by the Commission to investigate, provide feed-back or follow-up on IUU fishing and associated activities.

(65)

The Philippines authorities involved in the implementation of the catch certification scheme of the EU IUU Regulation are generally cooperative to respond and provide feedback to requests for information or verification, the reliability of their replies is compromised by the lack of transparency and the little or no possibilities to ensure traceability of fishery products as established in Section 3(1) of the Decision.

(66)

Second, in the framework of the overall assessment of the fulfilment of the Philippines’ duties to discharge its obligations as flag, port and coastal State, the Commission also analysed whether the Philippines cooperates with other flag States in the fight against IUU fishing.

(67)

As presented in recital 46, the Philippines does not have access to the necessary information on position or activities of its own vessels operating in Third Countries waters such as in PNG. Whereas cooperation is inadequate, the Philippines continues to allow vessels flying its flag to fish in Third Countries waters and hence it cannot assume its full responsibility as flag State regarding the operations of its vessels outside its waters and the veracity of information when validating catch certificates.

(68)

Third, 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 by the IPOA IUU. Point 24 of the IPOA IUU 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 Vessels Monitoring System (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. It also includes the obligation to submit regularly logbook information on catches, something which the Commission first mission in January 2012 found that in the Philippines was taking place only at the time of renewal of licence, which occurs every 3 years. As examined hereinafter, the Philippines has failed to comply with the obligation under UNCLOS and to take into consideration the recommendation included in the IPOA IUU, in particular with regard to its control over its fleet, and the monitoring, control and surveillance measures adopted and implemented.

(69)

The Philippines’ problems in controlling its fleet are partially due to lack of administrative capacity, because the size of its fishing fleet overcomes its ability to control the vessels. Indeed, the Commission observed a significant imbalance between the administrative capacities of the Philippines to monitor and control fishing activities of vessels operating in its waters, and the number of registered vessels/fishing licences delivered (amounting to around 9 300 commercial fishing vessels and around 470 000‘bancas’). This situation confirms that, compared to the size of the fishing activity taking place in waters under its jurisdiction, the Philippines has an insufficient enforcement capacity, despite the increase of human and budgetary resources foreseen in 2014. The Commission considers that this lack of means to intervene at sea jeopardises any enforcement effort.

(70)

The Philippines adopted in 2012 the ‘Fisheries Administrative Order No 241 on the Regulations and Implementation of the Vessel Monitoring System in the High Seas’. The Order requires that the VMS shall apply to all licensed Philippine flagged commercial fishing vessels authorised by the BFAR to operate in the high seas and also to those fishing vessels enjoying rights of access to fish in other countries’ EEZs. As stipulated by the Order, the VMS requirement shall first be applied to all Philippine flagged vessels authorised to conduct tuna fishing in the high seas or with access rights to fish in other countries’ EEZs. Subsequently, the schedule of application of VMS to other fishing vessels/gears operating in all other fishing areas shall be determined in the future consultations with the stakeholders unless otherwise required by other laws and existing Fisheries Administrative Orders. Up to now, the established facts show that despite the existing rules the Philippines has only made a partial implementation of the VMS obligations.

(71)

As described by the Philippines in the NPOA IUU submitted to the Commission, the VMS covers Philippine flagged fishing vessels operating in High Seas Pocket Number 1 and fishing grounds under the jurisdiction of other RFMOs. Through the Fisheries Administrative Order No 241, all Philippine flagged fishing vessels operating in the high seas are required to install VMS transponders. However, the Philippines has not submitted to the Commission the information on its intentions and planning of expanding the coverage of VMS in a phased manner to include fishing vessels operating in the Philippine EEZ, as it would be required by Article 94 UNCLOS and Article 24 IPOA-IUU in order to ensure comprehensive and effective monitoring, control and surveillance of fishing.

(72)

In the course of the first Commission mission conducted in the Philippines in 2012, the Commission observed that the Fishing Monitoring Centre (FMC) was only in development/pilot stage. Also, the operational VMS data were not available to the Philippine FMC, in particular in the cases of Philippine flagged vessels operating in the Papua New Guinea waters. Moreover, carrying of VMS was not obligatory for a number of vessels. The number of vessels actually reporting data to the Philippines authorities was insignificant. According to the information gathered during the mission in 2012, for only 53 out of 613 Philippine flagged vessels registered at that time at WCPFC the Philippines authorities had a so-called ‘view only’ access to the VMS. This ‘view only’ access right was in practice a screen shot with the information on the vessels entering/existing international waters under WCPFC Convention area ant not the actual vessel position. It has been also reported problems in respect to VMS coverage of fishing vessels operating in ICCAT and IOTC areas. In their submission of 15 May 2014, the Philippines informed that competent authority is now receiving VMS positions of only some Philippine catcher vessels from PNG authorities. Moreover, in accordance with the information provided by the Philippines, they are not receiving VMS information of the carrier vessels operating together with the catchers in PNG waters.

(73)

Furthermore, the Philippines authorities have not had a complete overview of their vessels or of Third Countries vessels possibly operating in its EEZ.

(74)

In addition, the competent authorities do not have information on fishery effort conducted by Philippines’ vessels in waters of PNG.

(75)

For all the above, the Philippines failed to comply with the provisions of Article 94 of the UNCLOS. Such operational deficiencies are furthermore not in line with point 24 of the IPOA IUU.

(76)

Fourth, with respect to effective enforcement measures, the IPOA IUU in point 21 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. As examined hereinafter, the Philippines does not have the legal framework or the control over its fleet and waters necessary to adequately sanction offenders.

(77)

Based on the information retrieved during the Commission missions it was also established that for IUU activities there is an insufficient system of sanctions, 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.

(78)

With respect to the enforcement measures put in place by the Philippines, the missions conducted by the Commission revealed that there is a need to review the applicable sanctions in respect of violations, as provided for in the Republic Act 8550 or the Philippine Fisheries Code of 1998 (RA 8550), which is the main fisheries legislation currently in force in the country.

(79)

The Philippines authorities have acknowledged in their submissions that they do not have a deterrent sanctions scheme in place. The existing level of sanctions is outdated and 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. As an example, with regards to the destruction of coral reef in the coast of Cotabato, whose value is deemed at EUR 11,5 billion, the offender would only be punished with a fine of PhP 2 000 (approximately EUR 32) to PhP 20 000 (approximately EUR 320).

(80)

Following the Commission missions in 2012 the Philippine authorities have submitted a draft amending the 1998 Philippine Fisheries Code. The proposed fines, although higher than those stipulated by the currently binding law, appear still not sufficient in severity in order to effectively deprive the offenders of the benefit accruing from IUU fishing. For instance, according to the draft, a fine foreseen for the gear destructive to coral reefs and other marine habitat, which is one of the highest foreseen by this draft, amounts to three times the value of the fish caught through the fishing operation, or two million PhP (approximately EUR 35 000), whichever is higher. This is clearly not sufficient because high economic value of coral reefs as detailed in recital 79. In addition, the draft has been tabled in the Senate and the House of Representatives, but it has not yet been adopted and therefore is not legally binding. The Philippine authorities have not provided a clear timetable for the enactment and implementation of this draft.

(81)

Furthermore, the current legislation does not include a definition of IUU fishing, provisions on serious infringements or particular sanctions for recidivists. The new draft foresees the definition of IUU and addresses recidivism. However, it does not include administrative accompaniment measures in a systematic manner. Moreover, while the draft submitted by the Philippines extends the scope of the 1998 Fisheries Code to acts committed in the high seas or in the waters of Third Countries, the current law in force only applies to the waters under the jurisdiction of the Philippines. Hence, as it stands, there is no legal basis for the Philippines authorities to impose sanctions on IUU activities by vessels flying its flag and operating beyond national jurisdiction.

(82)

Hence, penalties in their current form are not comprehensive and severe enough to achieve their deterrent function. Indeed, the level of penalties is not adequate to secure compliance, to discourage violations wherever they occur and to deprive offenders of the benefits accruing from their illegal activities, as required by Article 25(7) of the WCPFC Convention. Furthermore, the possibility for sanctioning and effectively following-up infringements is further undermined by the lack of clarity and transparency of laws and procedures, in particular in relation to vessel registration and licensing, traceability and reliability of information and data relating to landings and catch (as presented in recitals 45 to 62), as well as in relation to conservation and management of the resources (as will be described in recitals 100 to 102). This situation makes efficient enforcement and establishment of IUU infringements very difficult. The performance of the Philippines with respect to effective enforcement measures is not in compliance with its obligations under UNCLOS article 94 or in accordance with the recommendations in point 21 of the IPOA IUU.

(83)

According to Articles 63 and 64 of UNCLOS, coastal and flag States shall cooperate with regard to straddling and highly-migratory fish species. In addition, Article 7(1)(3) of the FAO Code of Conduct recommends that States concerned in the exploitation of straddling and trans-boundary fish stocks establish a bilateral agreement of organisational arrangement to guarantee effective cooperation in order to ensure effective conservation and management of resources. This is further specified in points 28 and 51 of the IPOA IUU, setting out detailed practices for direct cooperation between States, including the exchange of data or information available to coastal States. By not sharing the information between the Philippines and PNG enabling to crosscheck the information necessary to validate the catch certificates the application of these provisions is undermined.

(84)

In this respect, Article 25(10) of the WCPFC Convention (7) stipulates that each member of that Commission, where it has reasonable grounds for believing that a fishing vessel flying the flag of another State has engaged in any activity that undermines the effectiveness of conservation and management measures adopted for the Convention Area, shall draw this to the attention of the flag State concerned. However, PNG and the Philippine do not cooperate between each other in exchange of VMS information deemed of paramount importance for compliance by vessels of conservation and management measures. This affects the implementation of this provision.

(85)

With respect to the history, nature, circumstances, extent and gravity of the manifestations of IUU fishing considered, the possibility of assessing these aspects is equally compromised by the described lack of clarity and transparency. As a consequence of such shortcomings, it is not possible to establish, in a reliable way, the potential dimension of IUU fishing related activities. It is however an acknowledged fact that lack of transparency combined with the impossibility of effective controls encourages illegal behaviour.

(86)

With respect to the existing capacity of the Philippines authorities, it should be noted that, according to the United Nations Human Development Index (8), the Philippines is considered as a medium human development country (114th in 186 countries in 2012). 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 (9) where the Philippines is listed in the category of lower middle income countries and territories, as well as by the information from OECD/DAC of 1 January 2013 for reporting on 2012 (10). In this respect, the financial and administrative capacity constraints of the competent authorities may be considered as one factor that undermines the ability of the Philippines to fulfil its cooperation and enforcement duties.

(87)

Nevertheless, it should be taken into account that the administrative capacity of the Philippines has been continuously reinforced by Union financial and technical assistance. In particular, the Union has already funded a specific technical assistance action in the Philippines with respect to the fight against IUU fishing in 2011 (11). In addition, on 22-26 July 2013 the Commission, with the assistance of the European Fisheries Control Agency, and at the request of the Philippines authorities, organised a capacity building workshop in Manila, focusing on the port state measures and risk analysis.

(88)

Notwithstanding the analysis under recitals 86 and 87 it is also noted that, on the basis of information derived from the missions carried out in 2012, it cannot be considered that the Philippines authorities are lacking financial resources but rather the necessary legal and administrative environment and ensure efficient and effective performance of their duties.

(89)

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) (a), (b), (c) and (d) of the IUU Regulation, that the Philippines has failed to discharge the duties incumbent upon it under international law as coastal and market State in respect of cooperation and enforcement efforts.

(90)

The Philippines has ratified the UNCLOS. It is Contracting Party to ICCAT, IOTC and WCPFC as well as cooperating non-member to CCSBT.

(91)

The Commission analysed first all information deemed relevant with respect to the status of the Philippines as Contracting Member of IOTC and WCPFC.

(92)

The IOTC Compliance Report for the Philippines, issued by the Compliance Committee (CoC) in its Session of 2012 (12), noted that the Philippines has not incorporated the provisions of IOTC Conservation and Management Measures on marine turtles and thresher sharks into domestic legislation (Resolution 10/6 and 10/12 on seabirds and thresher sharks). Furthermore, it was noted that the Philippines was not fully compliant with the IOTC data reporting requirements, in particular size frequency data that has been only partially reported. The Committee urged the Philippines to make further improvements in data collection and reporting (Resolution 10/02 on minimum reporting requirements). The Philippines has not reported its list of active vessels for 2011 (Resolution 10/08 on the list of active vessels). It has also not submitted the observer reports (Resolution 11/04 on Regional Observer Program). The points of concerns of the Committee about the level of compliance of the Philippines were communicated to this country by the Chair of the IOTC in a letter dated 22 March 2011 as regards the level of implementation of IOTC Conservation and Management Measures identified by the CoC in its 8th session in 2011.

(93)

According to the information derived from the IOTC Compliance Report produced on 10 March 2012 (13) the Philippines was not compliant with the reporting obligations, namely: Resolution 09/02 on Fleet Development Plan – not submitted; Resolution 07/02 on the List of Authorised vessels 24 meters in length overall or more – some mandatory information missing or not up to IOTC standards. As regards VMS, the Philippines was not compliant with the Resolution 10/01 and the Resolution 06/03 because no information on the summary of VMS record and no VMS report on the progress and implementation have been provided in the Report of Implementation. The Philippines was furthermore non-compliant with the Resolution 10/12 on the prohibition on thresher sharks of all the species of the family Alopiidae, and the Resolution 10/06 on the seabirds report and the implementation of mitigation measures south of 25° South, since it has not provided the required information. As regards observers, the Philippines was not compliant with the Resolution 11/04: it has not provided information on the level of coverage as well as the observer reports. The Philippines was also not compliant with the Resolution 01/06 on the statistical document programme, since it has not provided the annual report.

(94)

In the IOTC Compliance Report for the Philippines produced on 2 April 2013 (14), the Compliance Committee stated that the concerns as regards the Philippines compliance identified by the Compliance Report for of 2012 were communicated to Philippines by the Chair of the Commission in a letter dated 26 April 2012. Having reviewed the 2013 Compliance Report for Philippines, the Compliance Committee has identified significant non-compliance issues. The Philippines has not transposed the ban on large scale driftnet into its domestic legislation in line with the Resolution 12/11. It has not implemented an observer programme as required by Resolution 11/04. It has not provided the mandatory report on transhipments carried out at sea, as required by Resolution 12/05. Further, the Philippines has not provided the mandatory VMS report on the progress and implementation, as required by Resolution 06/03. It has also not provided the mandatory report on comparison of export and import, as required by Resolution 01/06.

(95)

In addition, according to the information derived from the IOTC Compliance Report produced on 2 April 2013, the Philippines was non-compliant or only partially compliant with the Resolution 10/08 on the list of active vessels and with the Resolution 07/02 on the list of authorised vessels of 24 metres in length overall due to omission of mandatory information, such as: the owner, target species, gross tonnage, the period authorised, the operating port. As regards VMS, similarly to the previous year, the Philippines was not compliant with the Resolution 06/03 and the Resolution 12/13 because no information on the summary of VMS record and implementation have been provided in the Report of Implementation. The Philippines was only partially compliant with the mandatory statistical requirements resulting from the Resolution 10/02. The Philippines was also not compliant with the Resolution 12/05 on transhipments at sea since it has not provided the mandatory information required. As regards observers, the Philippines was not compliant or partially compliant with the Resolution 11/04; in particular it did not provide observer coverage as required due to the fact that the Indian Ocean is a high risk area and did not provide mandatory observer reports as well as the annual report.

(96)

Some of the above mentioned problems, in addition to being violations of RFMOs’ rules, are also breaches of general obligations under UNCLOS, as examined hereinafter.

(97)

The failure to transpose the ban on large scale driftnet into its domestic legislation in line with the IOTC Resolution 12/11, as described in the recital 94, undermines the ability of the Philippines to fulfil its obligations under Article 118 of the UNCLOS which establish the duty of cooperation among States in the conservation and management of living resources in the areas of the high seas.

(98)

Also, as described in the recitals 93 to 97 the Philippines did not comply with the recording and timely reporting requirements both to the IOTC. In particular, it has not submitted to the IOTC information on statistics, fleet development plan, VMS reporting and recording, observer reports and reports on transhipments. Such deficiencies are not in line with Article 119(2) of the UNCLOS which stipulates that available scientific information, catch and fishing effort statistics, and other data relevant to the conservation of fish stocks shall be contributed and exchanged on a regular basis through competent international organisations, whether subregional, regional or global.

(99)

Furthermore, the failure to report to IOTC on the summary of VMS record and VMS report as well as the general difficulty of the Philippines authorities to receive the VMS signal of the Philippine flagged vessels when operating in Third Country waters are not in line with Article 62(4)(e) of the UNCLOS with regard to the requirement to request the VMS position report from fishing vessels. Such deficiency is furthermore not in line with point 24(3) of the IPOA IUU 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.

(100)

In addition, pursuant to Article 62(1) of the UNCLOS and relevant rules in the WCPFC Convention (in particular Articles 2, 5, 7, 8) it is a clear obligation of a coastal State to adopt measures compatible to those applying in the region and in the high seas to ensure the long term sustainability of straddling and highly migratory fish stocks and promote the objective of their optimum utilisation. The Philippines legal framework only provides for limited conservation and management measures for all waters under its national jurisdiction. These measures are not compliant with Philippines’ obligations under international law and RFMO rules.

(101)

In particular, waters under the jurisdiction of the Philippines are referred to as territorial, archipelagic and EEZ. According to Article 3 of the WCPFC Convention, the WCPFC area of competence comprises in principle all waters of the Pacific Ocean (bounded to the south and to the east by defined lines), including waters under jurisdiction of the Philippines. As the Philippines considers that WCPFC rules do not fully apply to waters under its jurisdiction, it is not entirely clear what data is collected and reported to WCPFC; this does not cover assessments of all the Philippines fisheries waters. The Philippines, by considering its archipelagic waters to be beyond the scope of application of the WCPFC measures is in breach of these measures.

(102)

Furthermore, as identified during the first Commission Mission in 2012, only few conservation measures exist and most of them have very limited effects. The role of Local Governments in introducing conservation measures in municipal waters also remains unclear. There are 915 Local Governments; they appear to act independently from BFAR, which cannot dictate to them policies and rules in matters pertaining to their jurisdictions, i.e. municipal waters.

(103)

This situation leads to a lack of clarity and transparency which, in addition to the lack of transparency of the Philippines laws and procedures in relation to registration and licensing of fishing vessels, as explained in Sections 3(1) and 3(2) of the Decision, compromises and undermines the possibility for effective implementation of efficient conservation and management of the fisheries resources of the Philippines.

(104)

The performance of the Philippines 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 case of the Philippines, which has a significant fleet of fishing vessels engaged in fishing operations concerning highly migratory species (mainly tuna in the ICCAT, IOTC and WCPFC area), this recommendation is of particular relevance.

(105)

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 the Philippines has failed to discharge the duties incumbent upon it under international law with respect to international rules, regulations and conservation and management measures.

(106)

It is recalled that, according to the United Nations Human Development Index (15), the Philippines is considered as a medium human development country (114th in 186 countries in 2012). This is also confirmed by Annex II to Regulation (EC) No 1905/2006 where the Philippines is listed in the category of lower middle income countries and territories, as well as by the information from OECD/DAC of 1 January 2013 for reporting on 2012 (16).

(107)

It should be noted that the notification of the Philippines as flag State was accepted by the Commission in accordance with Article 20 of the IUU Regulation as of 15 January 2010. The Philippines confirmed, as required by Article 20(1) of the IUU Regulation, 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.

(108)

The Commission informed the Philippines of the various shortcomings it detected during its first mission conducted in January 2012. Few months later, during its second mission in June 2012, the Commission found the situation unchanged. The Commission sought to achieve cooperation with the Philippine authorities and progress in corrective actions in respect of the detected shortcomings. The Philippines has failed to take sufficient corrective actions and to achieve positive developments in correcting the established shortcomings.

(109)

In is also pertinent to note that the Union has already funded a specific technical assistance action in the Philippines with respect to the fight against IUU fishing in 2011 (17).

(110)

In addition, on 22-26 July 2013 the Commission, with the assistance of the European Fisheries Control Agency, and at the request of the Philippines authorities, organised a capacity building workshop in Manila, focusing on the port state measures and risk analysis.

(111)

The Commission has taken into consideration the development constraints of the Philippines and offered adequate time to the Philippines to implement actions in order to remedy its non-compliance with its obligations under international law in a coherent, effective and non-detrimental way since 2012.

(112)

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 of the Philippines fisheries governance may be impaired by its level of overall development. However, account taken of the nature of the established shortcomings of the Philippines, the assistance provided by the Union and actions taken to rectify the situation, no corroborating evidence could be established to suggest that the failure of the Philippines to discharge the duties incumbent upon it under international law is the result of lacking development. The development level of the Philippines cannot excuse or justify the overall performance of the Philippines as flag and coastal State with respect to fisheries, and the insufficiency of its action to prevent, deter and eliminate IUU fishing and to ensure respective efficient monitoring, control and surveillance of fishing activities in waters under its jurisdiction.

(113)

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 the Philippines with respect to fisheries are not impaired by its level of development.

(114)

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

(115)

In accordance with Article 32(1) of the IUU Regulation, the Commission should notify the Philippines of the possibility of it being identified as non-cooperating Third Country. The Commission should also take all the demarches set out in Article 32 of the IUU Regulation with respect to the Philippines. In the interest of sound administration, a period should be fixed within which that countries may respond in writing to the notification and rectify the situation.

(116)

Furthermore, the notification to the Philippines of the possibility of being identified as a country 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,

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Official Journal of the European Union

C 185/32

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Official Journal of the European Union

C 185/33

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Official Journal of the European Union

C 185/34

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Official Journal of the European Union

C 185/35

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Official Journal of the European Union

C 185/36

(a)

it must have legal personality in the Member State in which its seat is located;

(b)

it must be represented, in at least one quarter of Member States, by Members of the European Parliament or in the national Parliaments or regional Parliaments or in the regional assemblies, or it must have received, in at least one quarter of the Member States, at least three per cent of the votes cast in each of those Member States at the most recent European Parliament elections;

(c)

it must observe, in particular in its programme and in its activities, the principles on which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law;

(d)

it must have participated in elections to the European Parliament, or have expressed the intention to do so.

(a)

15 % will be distributed in equal shares;

(b)

85 % will be distributed among those parties with elected members in the European Parliament, in proportion to the number of elected members.

(a)

Original covering letter indicating the grant amount requested;

(b)

Application form as in Annex 1 to the Bureau Decision of 29 March 2004, duly completed and signed (including the written solemn declaration);

(c)

Statutes of the political party (5);

(d)

Official certificate of registration (6);

(e)

Recent proof of existence of the political party;

(f)

List of the directors/members of the Management Board (names and forenames, titles or functions within the applicant party) (7);

(g)

Documents certifying that the applicant meets the conditions laid down in Article 3(1)(b) of Regulation (EC) No 2004/2003;

(h)

Documents certifying that the applicant meets the conditions laid down in Article 3(1)(d) of Regulation (EC) No 2004/2003 (8), (9);

(i)

Political programme of the political party (10);

(j)

Comprehensive financial statement for 2013 certified by the external auditing body (11), (12);

(k)

Description of the annual work programme

(l)

Provisional operating budget for the period concerned (1 January 2015 to 31 December 2015) indicating expenditure eligible for funding from the Community budget.

(a)

be submitted on the grant application form (Annex 1 to the Bureau Decision of 29 March 2004);

(b)

be signed, without fail, by the applicant or his duly authorised representative;

(c)

be submitted under double cover; the two envelopes shall be sealed. In addition to the address of the recipient department as given in the call for proposals, the inner envelope must bear the following:

‘CALL FOR PROPOSALS — 2015 GRANTS TO POLITICAL PARTIES AT EUROPEAN LEVEL

NOT TO BE OPENED BY THE MAIL SERVICE OR BY ANY UNAUTHORISED PERSON’

If self-adhesive envelopes are used, they must be sealed with adhesive tape and the sender must sign across this tape. The signature of the sender shall be deemed to comprise not only his hand-written signature, but also his organisation’s stamp;

The outer envelope must display the sender’s address and be addressed to:

The inner envelope must be addressed to:

(d)

be forwarded at the latest on the closing date laid down in the call for proposals either by registered mail, as evidenced by the postmark, or by courier service, as evidenced by the date of the deposit slip.

(a)

Submission of applications to the European Parliament (no later than 30 September 2014);

(b)

Consideration and selection by the relevant European Parliament department; only those applications deemed admissible will be examined on the basis of the eligibility, exclusion and selection criteria set out in the call for proposals;

(c)

Adoption of the grant award decision by Parliament’s Bureau (in principle no later than 1 January 2015 as stipulated in Article 4 of the Bureau Decision of 29 March 2004);

(d)

Notification of grant decisions;

(e)

Payment of an advance of 80 % (within 15 days following the grant award decision).

(a)

Regulation (EC) No 2004/2003;

(b)

Bureau Decision of 29 March 2004;

(c)

Grant application form (Annex 1 to Bureau Decision of 29 March 2004).

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Official Journal of the European Union

C 185/41

(a)

it must be affiliated with one of the political parties at European level recognised in accordance with this Regulation, as certified by that party;

(b)

it must have legal personality in the Member State where it has its registered office; said legal personality must be separate from that of the political party at European level to which the foundation is affiliated;

(c)

it must observe, in particular in its programme and in its activities, the principles on which the European Union is founded, namely the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law;

(d)

it must not promote profit goals;

(e)

its governing body must have a geographically balanced composition.

(a)

15 % will be distributed in equal shares;

(b)

85 % will be distributed among those affiliates of the political parties at European level which have elected members in the European Parliament, in proportion to the number of elected members.

(a)

original covering letter indicating the grant amount requested;

(b)

application form as in Annex 1 to the Decision of the Bureau Decision of 29 March 2004, duly completed and signed (including the written solemn declaration);

(c)

statutes of the political foundation (5);

(d)

official certificate of registration (6);

(e)

recent proof of existence of the political foundation;

(f)

list of the directors/members of the Management Board (names and forenames, citizenship, titles or functions within the political foundation);

(g)

political programme of the political foundation (7);

(h)

comprehensive financial statement for 2013 certified by the external auditing body (8);

(i)

provisional operating budget for the period concerned (1 January 2015 to 31 December 2015) indicating expenditure eligible for funding from the Union budget;

(j)

description of the annual work programme

(k)

documents certifying that the political foundation meets the conditions laid down in Article 3(3) of Regulation (EC) No 2004/2003.

(a)

be made on the grant application form (Annex 1 to the Bureau Decision of 29 March 2004);

(b)

be signed, without fail, by the applicant or his duly authorised representative;

(c)

be submitted under double cover; the two envelopes shall be sealed; in addition to the address of the recipient department, as given in the call for proposals, the inner envelope must bear the following:

‘CALL FOR PROPOSALS — 2015 GRANTS TO POLITICAL FOUNDATIONS AT EUROPEAN LEVEL

NOT TO BE OPENED BY THE POSTAL SERVICE OR BY ANY UNAUTHORISED PERSON’

If self-adhesive envelopes are used, they must be sealed with adhesive tape bearing the signature of the sender. The signature of the sender shall be deemed to comprise not only his hand-written signature, but also his organisation’s stamp.

The outer envelope must show the sender’s address and be addressed to:

The inner envelope must be addressed to:

(d)

be forwarded at the latest on the closing date laid down in the call for proposals either by registered post, as evidenced by the postmark, or by courier service, as evidenced by the date of the deposit slip.

(a)

Submission of applications to the European Parliament (no later than 30 September 2014);

(b)

Examination and selection by the relevant European Parliament department; only those applications deemed admissible will be examined on the basis of the eligibility, exclusion and selection criteria set out in the call for proposals;

(c)

Adoption of the grant award decision by Parliament’s Bureau (in principle no later than 1 January 2015, as stipulated in Article 4 of the Bureau Decision of 29 March 2004) and notification of applicants;

(d)

Notification of grant decisions;

(e)

Payment of an advance of 80 % (within 15 days following the grant award decision).

(a)

Regulation (EC) No 2004/2003;

(b)

Bureau Decision of 29 March 2004;

(c)

Grant application form (Annex 1 to Bureau Decision of 29 March 2004).

17.6.2014   

EN

Official Journal of the European Union

C 185/45

1.

On 10 June 2014, the Commission received a notification of a proposed concentration pursuant to Article 4 of Council Regulation (EC) No 139/2004 (1) by which the Faurecia SA (‘Faurecia’ of France) ultimately controlled by Peugeot SA, the parent company of the PSA Peugeot Citroen group (‘PSA’ of France) and Magneti Marelli SpA. (‘Magneti Marelli’ of Italy) controlled by FIAT SpA., the parent company of the FIAT group (‘FIAT’ of Italy) acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of a JV in France by way of purchase of shares in a newly created company constituting a joint venture.

2.

The business activities of the undertakings concerned are:

—   for Faurecia: the manufacturing and supply of automotive equipment, including automotive seating, interior systems, automotive exteriors and emissions control technologies,

—   for PSA: the offering of products and services in the automotive sector,

—   for Magneti Marelli: the manufacturing and supply of high-technology components and systems for the automotive sector, including automotive lighting products, powertrain products, electronic systems, suspension systems and shock absorbers, exhaust systems, plastic components and modules, aftermarket parts and services and motorsport products,

—   for FIAT: the offering of products and services in the automotive sector.

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the 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 Council Regulation (EC) No 139/2004 (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 e-mail to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7209 — Faurecia/Magneti Marelli/JV, to the following address:

17.6.2014   

EN

Official Journal of the European Union

C 185/46

1.

On 6 June 2014 the European Commission received a notification of a proposed concentration according to Article 4 Council Regulation (EC) No 139/2004 (1) by which the Carlyle Group L.P. (‘Carlyle’, USA) and Haier Group Corporation (‘Haier Group’, China) intend to acquire within the meaning of Article 3(1)(b) of the Merger Regulation joint control of the undertaking Haier Biomedical and Laboratory Products Co., Ltd (‘HBML’, China), currently solely controlled by the Haier Group.

2.

The business activities of the undertakings concerned are:

—   for Carlyle: global alternative asset manager,

—   for Haier Group: multinational manufacturer and supplier of consumer electronics and home appliances,

—   for HBML: supplier of general laboratory equipment, in particular medical freezers, medical fridges/deep freezers and biomedical safety hoods.

3.

On preliminary examination, the Commission finds that the notified transaction could fall within the scope of the 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 Council Regulation (EC) No 139/2004 (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 e-mail to COMP-MERGER-REGISTRY@ec.europa.eu or by post, under reference number M.7294 — Carlyle / Haier Group / Haier Biomedical and Laboratory Product, to the following address: