2012/669/EU: Council Decision of 9 October 2012 on the signing, on behalf of the European Union, and provisional application of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community, on the one hand, and the Republic of Kiribati, on the other

The signing of the Protocol setting out the fishing opportunities and financial contribution provided for in the Fisheries Partnership Agreement between the European Community, on the one hand, and the Republic of Kiribati, on the other (‘the Protocol’), is hereby authorised on behalf of the Union, subject to its conclusion. 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.

The Protocol shall apply on a provisional basis as from 16 September 2012, pending the completion of the procedures for its conclusion.

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

1 Kiribati shall grant annual fishing authorisations to the European Union tuna fishing vessels pursuant to Article 6 of the Fisheries Partnership Agreement (hereinafter ‘the Agreement’) 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 three years starting on 16 September 2012 the fishing opportunities granted under Article 5 of the Agreement shall be for 15000 tonnes of highly migratory species as listed in Annex 1 to the 1982 United Nations Convention on the Law of the Sea, within the Kiribati exclusive economic zone (EEZ), for 4 (four) purse seine vessels and 6 (six) longline vessels.

3 Starting from the second year of application of this Protocol and without prejudice to Articles 9(1)(d) of the Agreement and 5 of this Protocol, at the request of the EU, the number of fishing authorisations for purse seine vessels granted in Article 1(2) of this Protocol may be increased, if resources permit and in accordance with the WCPFC conservation and management measures.

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

1 The EU shall pay the sum of the amounts referred to in paragraph 2 of this Article, each year during the period of application of this Protocol.

2 The financial contribution under Article 7 of the Agreement for the period specified under Article 1(2) of this Protocol shall comprise: (a) an annual amount for the access to the Kiribati EEZ of EUR 975000 equivalent to a reference tonnage of 15000 tonnes per year; (b) a specific amount of EUR 350000 for the support and implementation of initiatives taken in the context of the Kiribati sectoral fisheries policy.

3 Paragraph 1 of this Article shall apply subject to Articles 4, 5, 6 and 8 of this Protocol and to Articles 14 and 15 of the Agreement.

4 Both parties will secure to closely follow up the EU catches in the Kiribati EEZ. If the total quantity of catches per year by European Union vessels in the Kiribati EEZ exceeds 15000 tonnes, the annual financial contribution, as referred in paragraph 2(a) of this Article, shall be increased by EUR 250 per tonne for the first additional 2500 tonnes and by EUR 300 per tonne for any further tonne above these additional 2500 tonnes. These additional costs shall be borne by the EU with the amount of EUR 65 per additional tonne and the remaining part shall be paid by shipowners.

5 Payment as specified in Article 2 paragraphs 2(a) and 2(b) shall be made no later than 30 June after the entry into force of this Protocol for the first year and no later than 30 June for the following years.

6 The Kiribati authorities shall have full discretion regarding the use to which the financial contribution as specified in Article 2 paragraph 2(a) of this Protocol is put.

7 The share of the financial contribution indicated in Article 2 paragraph 2(b) of this Protocol shall be paid into the Kiribati Government Account No 4 with the ANZ Bank of Kiribati, Ltd, Betio, Tarawa (‘Fisheries Development Fund’) opened for the Kiribati Government by the Ministry of Finance. The remaining share of the financial contribution shall be paid into the Kiribati Government account No 1 with the ANZ Bank of Kiribati, Ltd, Betio, Tarawa opened for the Kiribati Government by the Ministry of Finance.

1 The financial contribution as indicated in Article 2 paragraph 2(b) shall be managed by the Kiribati authorities in the light of objectives identified by mutual agreement between the two parties.

2 As soon as this Protocol enters into force and no later than three months after that date, the Kiribati authorities shall provide a detailed annual and multiannual programme to the Joint Committee. The Joint Committee shall agree on this programme, which shall address the following requirements: (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 promoting, over time, responsible fishing and sustainable fisheries, taking account of the priorities expressed by Kiribati 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.

3 Any proposed amendments to the multiannual sectoral programme must be approved by both parties within the Joint Committee. Urgent changes to the multiannual sectoral programme required by the Kiribati authorities in relation to the promotion of responsible fishing may be done outside the Joint Committee through communication with the EU.

4 Each year, Kiribati shall allocate, if appropriate, an additional amount to the financial contribution referred to in Article 2 paragraph 2(b) with a view to implementing the multiannual programme. This allocation must be notified to the European Union. Kiribati shall notify the EU of the new allocation no later 1 March of each year.

5 Where the annual evaluation of the progress made in implementing the multiannual sectoral programme so warrants, the European Union may ask through the Joint Committee for the financial contribution referred to in Article 2 paragraph 2(b) of this Protocol, to be readjusted with a view to bring the actual amount of financial resources allocated to the implementation of the programme into line with its results.

6 The Joint Committee is responsible for the follow-up of the implementation of the multiannual sectoral support programme. If necessary, both parties shall continue this follow-up through the Joint Committee, after the expiry of this Protocol until the specific financial counterpart related to sectoral support foreseen in Article 2 paragraph 2(b) has been fully utilised.

7 However, the payment of the financial contribution foreseen in Article 2 paragraph 2(b) cannot be paid after a period of 10 months following the expiry of this Protocol.

1 Both parties hereby undertake to promote responsible fishing in the Kiribati waters based on the principles set out in the FAO’s Code of Conduct and of non-discrimination between the different fleets fishing in those waters.

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

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

4 In accordance with Article 4 of the Agreement, Article 4 paragraph 1 of this Protocol and in light of the best available scientific advice, the Parties shall within the Joint Committee adopt, where appropriate, measures in respect of the activities of European Union vessels licensed and authorised to undertake fishing activities by this Protocol to ensure sustainable management of the fishery resources in the Kiribati EEZ.

1 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 Kiribati 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.

2 If the fishing opportunities will be reduced due to the new closure of a substantial part of the Kiribati EEZ, the financial contribution of this Protocol may be adjusted proportionately and pro rata temporis after the consultation between the both parties within the Joint Committee.

1 Where an interest is expressed by the EU in having access to new fishing opportunities which are not indicated in Article 1 of this Protocol, this interest should be addressed to Kiribati. The granting of such request for access to new fishing opportunities may be made available, and may be the subject of another agreement.

2 At the request of one of the parties, they shall consult each other and determine on a case-by-case basis the relevant species, conditions and other parameters for conducting exploratory fishing in Kiribati waters.

3 The parties shall carry out exploratory fishing activities in accordance with Kiribati laws and regulations and by mutual agreement. The authorisations for exploratory fishing may be granted, for a maximum period of three (3) months.

4 Where the parties conclude that the exploratory surveys have produced positive results and new commercial species have been identified, while preserving ecosystems and conserving living marine resources, new fishing opportunities for that species may be offered to European Union vessels following consultation between the two parties.

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

2 For fishing categories not covered by this Protocol, and for exploratory fishing, the Kiribati authorities may grant fishing authorisations to European Union vessels. However, the granting of these authorisations is subject to Kiribati laws and regulations and mutual agreement.

1 The financial contribution referred to in Article 2 paragraphs 2(a) and 2(b) of this Protocol may be reviewed or suspended in the event that unusual circumstances, other than natural phenomena, prevent fishing activities in the Kiribati EEZ following consultation between the two parties within a period of two months following the request of one of the parties, and provided that the EU has paid in full any amount due at the time of suspension.

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

3 Suspension of the payment shall require the EU to notify its intention in writing at least two months before the date on which the suspension is due to take effect.

4 Payment of the financial contribution shall recommence once the situation has been remedied following actions to mitigate 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.

Kiribati 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 Kiribati 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 In the event that consultations are exhausted without reaching an amicable settlement the application of this Protocol may be suspended at the initiative of either one of the parties if: (a) the European Union fails to make the payments provided for in Article 2, paragraph 2 of this Protocol for reasons not covered by Article 8 of this Protocol; (b) a dispute between the parties over the interpretation of this Protocol or its application arises; (c) either one of the parties breaches the provisions laid down in this Protocol; or (d) either one of the parties ascertains a breach of essential and fundamental elements of human rights as laid out by Article 9 of the Cotonou Agreement.

2 Application of this 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 application of this Protocol shall require the party concerned to notify its intention in writing at least two months before the date on which suspension is due to take effect.

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

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

2 Any changes or new legislation which is related to fisheries shall apply to the EU from the 60th day following the day when the notification is received by the EU from Kiribati.

After two years of application of this Protocol, the shipowner’s contribution shall be reviewed and any changes will be subject to agreement by both parties. The third year of application of this Protocol will be regarded as a transition period before the future introduction of the new management and conservation measure on fisheries initiated by the Kiribati authorities.

This Protocol and its Annex shall apply for a period of three years from 16 September 2012, unless notice of termination is given in accordance with Article 14 of this Protocol.

1 This Protocol may be terminated by either party in the event of unusual circumstances such as the degradation of the stocks concerned, the discovery of a reduced level of exploitation of the fishing opportunities granted to the European Union vessels, or failure to comply with undertakings made by the parties with regard to combating illegal, unreported and unregulated fishing.

2 In the event of termination of this Protocol, the party concerned shall notify the other party in writing of its intention to terminate it at least six months before the date on which such termination would take effect. Dispatch of the notification referred to in the previous sentence shall open consultations by the parties.

3 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 16 September 2012.

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.