2011/116/EU: Council Decision of 13 December 2010 on the signing, on behalf of the European Union, and the provisional application of the Protocol to the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia

The signing of the Protocol setting out the fishing opportunities and financial contribution provided for in the Partnership Agreement between the European Community and Federated States of Micronesia on fishing in the Federated States of Micronesia (hereinafter ‘the Protocol’) is hereby approved on behalf of the Union, subject to the conclusion of said Protocol. The text of the Protocol is attached to this Decision.

The President of the Council is hereby authorised to designate the person(s) empowered to sign the Protocol on behalf of the Union, subject to its conclusion.

The Protocol shall be applied on a provisional basis as from the date of its signature , in accordance with Article 15 thereof, pending the completion of the procedures for its conclusion.

This Decision shall enter into force on the day of its adoption.

1 FSM shall grant annual fishing opportunities to the European Union tuna fishing vessels pursuant to Article 6 of the Fisheries Partnership Agreement, in conformity with Title 24 of the Code of the FSM and within the limits established by the Western and Central Pacific Fisheries Commission (WCPFC) conservation and management measures (CMM) and in particular CMM 2008-01.

2 For a period of 5 years from the date of entry into force of this Protocol the fishing opportunities foreseen under Article 5 of the Fisheries Partnership Agreement shall provide annual fishing authorisations to fish within FSM EEZ for six purse seine vessels and 12 long-liners.

3 Paragraphs 1 and 2 shall apply subject to Articles 5, 6, 8 and 10 of this Protocol.

1 The financial contribution referred to in Article 7 of the Fisheries Partnership Agreement shall be EUR 559000 per year for the period referred to in Article 1, paragraph 2:

2 This financial contribution shall comprise: (a) an annual amount for the access to FSM EEZ of EUR 520000 equivalent to a reference tonnage of 8000 tonnes per year less EUR 111800; and (b) a specific amount of EUR 150800 per year for the support and implementation of FSM sectoral fisheries policy.

3 Paragraph 1 of this Article shall apply subject to Articles 4, 5 and 6 of this Protocol and to Articles 13 and 14 of the Fisheries Partnership Agreement.

4 If the total quantity of tuna catches per year by European Union vessels in the FSM EEZ exceeds 8000 tons, the total annual financial contribution shall be increased by EUR 65 per additional ton of tuna caught. However, the total annual amount to be paid by the European Union cannot exceed a sum more than double the amount of the financial contribution referred to in paragraph 2(a). Where the quantities caught by European Union vessels exceed the quantities corresponding to twice the amount indicated in paragraph 2(a), the Parties shall consult each other as soon as possible in order to establish the amount due for the quantity caught in excess of this limit.

5 Payment shall be made no later than 45 days after the entry into force of the Protocol to the Fisheries Partnership Agreement for the first year and no later than the anniversary date of this Protocol for the following years.

6 FSM shall have full discretion regarding the use to which the financial contribution as specified in Article 2, paragraph 2(a) is put.

7 The financial contribution shall be paid into the FSM National Government Account at the Bank of FSM Micronesia in Honolulu, Hawaii. The banking details are as follows: Bank of FSM Micronesia, Honolulu Hawaii ABA Number 1213-02373 Credit to Bank of FSM account number 08-18-5018 Account Holder: FSM National Government

8 Copies of payments or wire transfers shall be forwarded to FSM National Oceanic Resource Management Authority (NORMA) as evidence of payments made.

1 As soon as this Protocol enters into force and no later than 3 months after that date, the European Union and FSM shall agree, within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement, on a multiannual sectoral programme and detailed implementing rules covering, in particular: (a) annual and multiannual guidelines for using the financial contribution referred to in Article 2 paragraph 2(b) for the initiatives to be carried out each year; (b) the objectives, both annual and multiannual, to be achieved with a view to introducing and promoting, over the long term, responsible fishing and sustainable fisheries, taking account of the priorities expressed by FSM in its national fisheries policy and other policies relating to or having an impact on the enhancement of responsible fishing and sustainable fisheries; (c) criteria and procedures for evaluating the results obtained each year.

2 Any proposed amendments to the multiannual sectoral programme must be approved by both parties within the Joint Committee.

3 Each year, FSM shall allocate, if appropriate, an additional amount to the financial contribution referred to Article 2 paragraph 2(b) with a view to implementing the multiannual programme. This allocation must be notified to the European Union. FSM shall notify the European Commission of the new allocation no later than 45 days before the anniversary date of this Protocol.

4 Where the annual evaluation of the progress made in implementing the multiannual sectoral programme so warrants, the European Commission may ask for the share of the financial contribution referred to in Article 2 paragraph 2(b) of this Protocol to be reduced with a view to bringing the actual amount of financial resources allocated to implementation of the programme into line with its results.

1 Both Parties hereby undertake to promote responsible fishing in the FSM EEZ based on the principle of non-discrimination between the different fleets fishing in those waters.

2 During the period covered by this Protocol, the European Union and FSM shall ensure the sustainable use of the fishery resources in the FSM EEZ.

3 The parties undertake to promote cooperation at sub-regional level on responsible fishing and, in particular, within the WCPFC and any other sub-regional or international organisation concerned.

4 In accordance with Article 4 of the Fisheries Partnership Agreement, Article 4 paragraph 1 of this Protocol and in light of the best available scientific advice, the Parties shall consult each other within the Joint Committee provided for in Article 9 of the Fisheries Partnership Agreement and adopt, where appropriate, measures in respect of the activities of European Union vessels authorised by this Protocol and licensed according to the Annex to ensure sustainable management of the fishery resources in the FSM EEZ.

The fishing opportunities referred to in Article 1 of this Protocol may be adjusted by mutual agreement insofar as the recommendations of WCPFC corroborate that such an adjustment will secure the sustainable management of FSM resources. In this case the financial contribution referred to in Article 2 paragraph 2(a) of this Protocol shall be adjusted proportionately and pro rata temporis.

1 Should European Union vessels be interested in fishing opportunities which are not indicated in Article 1 of this Protocol, such interest should be made known to the FSM in the form of an expression of interest or request. The granting of such request will be made only in accordance with FSM Laws and Regulations and may be the subject of another agreement.

2 The Parties may carry out joint exploratory fishing surveys in FSM EEZ in accordance with FSM Laws and Regulations. To this end and subject to scientific assessment, they shall hold consultations whenever one of the Parties so request and determine, on a case-by-case basis, relevant new resources, conditions and other parameters.

3 The Parties shall carry out exploratory fishing activities in accordance with FSM Laws and Regulations by mutual agreement. The authorisations for exploratory fishing shall be granted for test purposes, for a duration and a starting date to be decided by mutual agreement between the two Parties.

4 Where the Parties conclude that the exploratory surveys have produced positive results, while preserving ecosystems and conserving living marine resources, new fishing opportunities may be awarded to European Union vessels following consultation between the two Parties.

1 European Union vessels may fish in FSM EEZ only if they are in possession of a valid fishing authorisation issued by FSM NORMA under this Protocol.

2 For fishing categories not covered by the Protocol in force, and for exploratory fishing, the FSM NORMA may grant fishing authorisations to European Union vessels. However, the granting of these authorisations is subject to FSM Laws and Regulations and mutual agreement.

1 The financial contribution referred to in Article 2 paragraphs 2(a) and 2(b) of this Protocol shall be reviewed or suspended if: (a) unusual circumstances, other than natural phenomena, prevent fishing activities in FSM EEZ; or (b) following significant changes in the policy guidelines which led to the conclusion of this Protocol, either one of the Parties requests a review of the provisions with a view to a possible amendment thereof; or (c) the European Union ascertains a breach of essential and fundamental elements on human rights as laid out by Article 9 of the Cotonou Agreement, in FSM.

2 The European Union reserves the right to suspend, totally or partially, the payment of the specific contribution provided for in Article 2 paragraph 2(b) of this Protocol: (a) where the results obtained are found to be inconsistent with the programming following the evaluation carried out within the Joint Committee; or (b) in case FSM fails to execute this specific contribution.

3 Payment of the financial contribution shall recommence once the situation has returned to the status prior to the occurrence of the above mentioned circumstances and following consultation and agreement of the two Parties confirming that the situation is likely to allow a return to normal fishing activities.

FSM reserves the right to suspend fishing authorisations provided for in Article 1 paragraph 2 of this Protocol where: (a) a specific vessel is in a serious violation as defined by FSM Laws and Regulations; or (b) a court order issued in relation to a violation of a specific vessel has not been respected by the shipowner. Once the court order has been respected, the fishing authorisation for the vessel shall be reinstated for the remaining period of the fishing authorisation.

1 Implementation of the Protocol shall be suspended at the initiative of either one of the Parties if: (a) unusual circumstances, other than natural phenomena, prevent fishing activities in FSM EEZ; or (b) the European Union fails to make the payments provided for in Article 2, paragraph 2(a) of this Protocol for reasons not covered by Article 8 of this Protocol; or (c) a dispute between the Parties over the interpretation of this Protocol or its implementation arises; or (d) either one of the Parties does not respect the provisions laid out by of this Protocol; or (e) following significant changes in the policy guidelines which led to the conclusion of this Protocol, either one of the Parties requests a review of the provisions with a view to a possible amendment thereof; or (f) either one of the Parties ascertains a breach of essential and fundamental elements on human rights as laid out by Article 9 of the Cotonou Agreement.

2 Implementation of the Protocol may be suspended at the initiative of one Party if the dispute between the Parties is deemed to be serious and if the consultations held between the two Parties have not resulted in an amicable settlement.

3 Suspension of implementation of the Protocol shall require the Party concerned to notify its intention in writing at least 3 months before the date on which suspension is due to take effect.

4 In the event of suspension of implementation, the Parties shall continue to consult with a view to finding an amicable settlement to their dispute. Where such settlement is reached, implementation of the Protocol shall resume and the amount of the financial contribution shall be reduced proportionately and pro rata temporis according to the period during which implementation of the Protocol was suspended.

1 The activities of European Union fishing vessels when operating in FSM EEZ shall be governed by the applicable Laws and Regulations in FSM, unless otherwise provided for in the Agreement, this Protocol and the Annex and Appendices hereto.

2 FSM shall inform the European Commission of any changes or new legislation which is related to fisheries policy, at least 3 months before the entry into force of such changes or new legislation.

This Protocol and its annexes repeal and replace the Protocol setting out the fishing opportunities and financial contribution provided for in the Partnership Agreement between the European Community and the Federated States of Micronesia on fishing in the Federated States of Micronesia, which entered into force on 26 February 2007.

This Protocol and the annexes hereto shall apply for a period of 5 years, unless notice of termination is given in accordance with Article 14 of this Protocol.

1 In the event of termination of the Protocol, the Party concerned shall notify the other Party in writing of its intention to terminate it at least 6 months before the date on which such termination would take effect. Dispatch of the notification referred to in the previous paragraph shall open consultations by the Parties.

2 Payment of the financial contribution referred to in Article 2 of this Protocol for the year in which the termination takes effect shall be reduced proportionately and pro rata temporis.

This Protocol shall be applied provisionally from the date of the signature.

This Protocol with its Annex shall enter into force on the date on which the Parties notify each other of the completion of the procedures necessary for that purpose.