ANNEX

Conditions governing fishing activities by Community vessels in São Tomé and Príncipe’s fishing zone

CHAPTER I

APPLICATION FOR AND ISSUE OF LICENCES

SECTION 1

Issue of licences

1.   Only eligible vessels may obtain a licence to fish in São Tomé and Príncipe’s fishing zone.

2.   For a vessel to be eligible, neither the owner, the skipper nor the vessel itself must be prohibited from fishing in São Tomé and Príncipe. They must be in order vis-à-vis the São Toméan authorities insofar as they must have fulfilled all prior obligations arising from their fishing activities in São Tomé and Príncipe under fisheries agreements concluded with the Community.

3.   The relevant Community authorities shall submit (by electronic means) to the Ministry responsible for fisheries in São Tomé and Príncipe an application for each vessel wishing to fish under the Agreement at least 15 working days before the date of commencement of the period of validity requested.

4.   Applications shall be submitted to the Ministry responsible for fisheries on a form drawn up in accordance with the specimen in Appendix I. The São Toméan authorities shall take all the necessary steps to ensure that the data received as part of the licence application are treated as confidential. This data will be used exclusively in the context of the implementation of the Fisheries Agreement.

5.   All licence applications shall be accompanied by the following documents:

—	proof of payment of the flat-rate advance for the period of validity of the licence;

—	(any other documents or certificates required under the specific rules applicable to the type of vessel concerned pursuant to this Protocol).

6.   The fee shall be paid into the account specified by the São Toméan authorities in accordance with Article 2(7) of the Protocol.

7.   The fees shall include all national and local charges with the exception of port taxes and service charges.

8.   Licences for all vessels shall be issued to shipowners or their representatives via the European Commission Delegation to Gabon within 15 working days of receipt of all the documents referred to in point 5 by the Ministry responsible for fisheries in São Tomé and Príncipe.

9.   Licences shall be issued for a specific vessel and shall not be transferable.

10.   However, at the request of the European Community and where force majeure is proven, a vessel’s licence shall be replaced by a new licence for another vessel of the same category as the first vessel, as referred to in Article 1 of the Protocol, with no further fee due. In this case, the calculation of the catch levels to determine whether an additional payment should be made shall take account of the sum of the total catches of the two vessels.

11.   The owner of the first vessel, or his or her representative, shall return the cancelled licence to the Ministry responsible for fisheries in São Tomé and Príncipe via the European Commission Delegation.

12.   The new licence shall take effect on the day that the vessel’s owner returns the cancelled licence to the Ministry responsible for fisheries in São Tomé and Príncipe. The European Commission Delegation to Gabon shall be informed of the licence transfer.

13.   The licence must be held on board at all times. The European Community shall keep an up-to-date list of the vessels to which a fishing licence has been issued under this Protocol. This draft shall be notified to the São Toméan authorities as soon as it is drawn up, and then each time it is updated. On receipt of this draft list and of notification of payment of the advance sent to the São Toméan authorities by the Commission, the vessel shall be entered by the competent São Toméan authority on a list of vessels authorised to fish, which shall be notified to the authorities responsible for fisheries inspection. In this case, a certified copy of this list shall be sent to the shipowner and kept on board instead of the fishing licence until the licence has been issued.

SECTION 2

Licence conditions – fees and advance payments

1.   Licences shall be valid for a period of one year. They shall be renewable.

2.   The fee shall be EUR 35 per tonne caught within São Tomé and Príncipe’s fishing zone in the case of tuna seiners and surface longliners.

3.   Licences shall be issued once the following standard amounts have been paid to the competent national authorities:

—	EUR 5 250 per tuna seiner, equivalent to the fees due for 150 tonnes per year,

—	EUR 1 925 per surface longliner, equivalent to the fees due for 55 tonnes per year.

4.   Member States shall inform the European Commission not later than 15 June each year of the tonnages caught during the past year, as confirmed by the scientific institutes referred to in point 5 below.

5.   The final statement of the fees due for year n shall be drawn up by the European Commission by 31 July of year n + 1 at the latest on the basis of the catch declarations made by each shipowner and confirmed by the scientific institutes responsible for verifying catch data in the Member States, such as the IRD (Institut de Recherche pour le Développement), the IEO (Instituto Español de Oceanografía) and the IPIMAR (Instituto Português de Investigação Marítima) via the European Commission Delegation.

6.   This statement shall be sent simultaneously to the Ministry responsible for fisheries in São Tomé and Príncipe and to the shipowners.

7.   Any additional payments (for quantities caught in excess of 150 tonnes for tuna seiners and 55 tonnes for longliners) shall be made by the shipowners to the competent São Toméan national authorities by 31 August of year n + 1, into the account referred to in point 6 of Section 1 of this Chapter, on the basis of EUR 35 per tonne.

8.   However, if the amount of the final statement is lower than the advance referred to in point 3 of this Section, the resulting balance shall not be reimbursable to the shipowner.

CHAPTER II

FISHING ZONES

1.   Community vessels may carry out fishing activities in waters beyond 12 nautical miles from the base lines in the case of tuna seiners and surface longliners.

2.   Without exception, all fishing activity in the zone destined for joint exploitation by São Tomé and Príncipe and Nigeria, delimited by the coordinates set out in Appendix 3, shall be prohibited.

CHAPTER III

CATCH REPORTING ARRANGEMENTS

1.   For the purposes of this Annex, the duration of a trip by a Community vessel in São Tomé and Príncipe’s fishing zone shall be defined as follows:

—	the period elapsing between entering and leaving São Tomé and Príncipe’s fishing zone,

—	or the period elapsing between entering São Tomé and Príncipe’s fishing zone and a transhipment and/or a landing in São Tomé and Príncipe.

2.   All vessels authorised to fish in São Toméan waters under the Agreement shall be obliged to notify their catches to the Ministry responsible for fisheries in São Tomé and Príncipe so that it can check the quantities caught, which shall be validated by the competent scientific institutes in accordance with the procedure referred to in point 4 of Section 2 of Chapter I of this Annex. Catches shall be notified as follows:

2.1.

During an annual period of validity of the licence within the meaning of Section 2 of Chapter I of this Annex, declarations shall include the catches made by the vessel during each trip. The original of the declarations shall be transmitted on a physical medium to the Ministry responsible for fisheries in São Tomé and Príncipe within 45 days following the end of the last trip made during the period.

2.2.

Vessels shall declare their catches on the corresponding form in the logbook, in accordance with the specimen in Appendix 2. The words ‘Outside São Tomé and Príncipe’s fishing zone’ shall be entered in the logbook in respect of periods during which the vessel is not in São Tomé and Príncipe’s fishing zone.

2.3.	The forms shall be filled in legibly and signed by the skipper of the vessel or by his or her legal representative.

3.   At the request of one of the Parties, the Joint Committee may meet to compare the data on fishing activities.

4.   Where the provisions set out in this Chapter are not complied with, the Government of São Tomé and Príncipe reserves the right to suspend the licence of the offending vessel until formalities have been completed and to apply to the shipowner the penalty laid down in current São Toméan legislation. The European Commission and the flag Member State shall be informed thereof.

CHAPTER IV

LANDING

The parties shall cooperate with a view to improving transhipment options in or off São Toméan ports.

1.   Transhipment:

Community tuna vessels which opt to tranship their catches in or off a São Toméan port shall benefit from a reduction of EUR 5 per tonne fished in São Tomé and Príncipe’s fishing zone in the fee indicated in point 2 of Section 2 of Chapter I of the Annex.

This mechanism shall apply, for all Community vessels, up to a maximum of 50 % of the final statement of catches (as defined in Chapter III of the Annex) from the first year of this Protocol.

2.   Detailed rules on checks on the tonnages transhipped shall be laid down at the first meeting of the Joint Committee.

3.   Evaluation:

The level of the financial incentives and the maximum percentage of the final statement ofcatches shall be adjusted within the Joint Committee, in accordance with the socio-economic impact of transhipments in the year concerned.

CHAPTER V

EMBARKING SEAMEN

1.   Owners of tuna seiners and surface longliners shall employ ACP nationals, subject to the following conditions and limits:

—	for the fleet of tuna seiners, at least 20 % of the seamen signed on during the tuna fishing season in the fishing zone of third countries shall be of ACP origin,

—	for the fleet of surface longliners, at least 20 % of the seamen signed on during the fishing season in the fishing zone of third countries shall be of ACP origin.

2.   Shipowners shall endeavour to sign on additional seamen of São Toméan origin.

3.   The International Labour Organisation (ILO) Declaration on Fundamental Principles and Rights at Work shall apply as of right to seamen signed on by Community vessels. This concerns in particular the freedom of association and the effective recognition of the right to collective bargaining, and the elimination of discrimination in respect of employment and occupation.

4.   The employment contracts of ACP seamen shall be drawn up between the shipowners’ representative(s) and the seamen and/or their trade unions or representatives. A copy of these contracts shall be given to the signatories. These contracts shall guarantee the seamen the social security cover applicable to them, including life assurance and sickness and accident insurance.

5.   The wages of the ACP seamen shall be paid by the shipowners. They shall be fixed by mutual agreement among the shipowners or their representatives and the seamen and/or their trade unions or representatives. However, the wage conditions granted to ACP seamen shall not be lower than those applied to crews from their respective countries and shall under no circumstances be below ILO standards.

6.   All seamen employed aboard Community vessels shall report to the skipper of the vessel designated on the day before their proposed embarkation date. Where a seaman fails to report at the date and time agreed for embarkation, shipowners shall be automatically absolved of their obligation to take the seaman on board.

7.   However, where no ACP seamen are taken on board for reasons other than that referred to in the previous point, Community shipowners shall be obliged to pay, for each day of the fishing trip in São Toméan waters, a flat-rate amount of USD 20 per day. The payment of this amount shall take place within the limits laid down in point 7 of Section 2 of Chapter I of this Annex.

CHAPTER VI

TECHNICAL MEASURES

1.   Vessels shall comply with the measures and recommendations adopted by ICCAT in the region regarding fishing gear and the technical specifications thereof and all other technical measures applicable to their fishing activities.

2.   Tuna seiners shall make any by-catches available to the São Tomé and Príncipe Directorate for Fisheries, which will take charge of recovering and landing them.

3.   The two Parties shall agree by mutual agreement on a provision ensuring the effective implementation of the previous point or on an alternative solution in the first meeting of the Joint Committee referred to in Article 9 of the Agreement. The Joint Committee shall analyse all possible options to this end, including an obligation for the seiners concerned to pay an annual contribution equivalent to a share of the value of by-catches to a São Tomé and Príncipe Directorate for Fisheries fund to support small-scale fishing.

CHAPTER VII

OBSERVERS

1.   Vessels authorised to fish in São Toméan waters under the Agreement shall take on board observers appointed by the competent regional fisheries organisation on the terms set out below:

1.1.	At the request of the competent authority, Community vessels shall take on board an observer designated by the authority in order to check catches made in São Toméan waters.

1.2.

The competent authority shall draw up a list of vessels designated to take an observer on board and a list of the appointed observers. These lists shall be kept up to date. They shall be forwarded to the European Commission as soon as they have been drawn up and every three months thereafter where they have been updated.

1.3.	The competent authority shall inform the shipowners concerned, or their representatives, of the name of the observer appointed to be taken on board their vessel at the time the licence is issued, or no later than 15 days before the observer’s planned embarkation date.

2.   The time spent on board by observers shall be one fishing trip. However, at the express request of the competent São Toméan authorities, this embarkation may be spread over several trips according to the average duration of trip for a particular vessel. This request shall be made by the competent authority when the name of the observer appointed to board the vessel in question is notified.

3.   The conditions under which observers are taken on board shall be agreed between shipowners or their representatives and the competent authority.

4.   Observers shall be taken on board at a port chosen by the shipowner at the beginning of the first voyage in São Toméan waters after notification of the list of designated vessels.

5.   Within two weeks and giving 10 days’ notice, the shipowners concerned shall make known at which ports in the subregion and on what dates they intend to take observers on board.

6.   Where observers are taken on board in a country outside the subregion, their travel costs shall be borne by the shipowner. Should a vessel with a regional observer on board leave the regional fishing zone, all measures must be taken to ensure the observer’s return as soon as possible at the expense of the shipowner.

7.   If the observer is not present at the time and place agreed and during the 12 hours following the time agreed, shipowners shall be automatically absolved of their obligation to take the observer on board.

8.   Observers shall be treated as officers. Where vessels are operating in São Toméan waters, they shall carry out the following tasks:

8.1.	observe the fishing activities of the vessels;

8.2.	verify the position of vessels engaged in fishing operations;

8.3.	perform biological sampling in the context of scientific programmes;

8.4.	note the fishing gear used;

8.5.	verify the catch data for São Toméan waters recorded in the logbook;

8.6.	verify the percentages of by-catches and estimate the quantity of discards of species of marketable fish;

8.7.	report by any appropriate means fishing data, including the quantity of catches and by-catches on board, to their competent authority.

9.   Skippers shall do everything in their power to ensure the physical safety and welfare of observers during performance of their duties.

10.   Observers shall be offered every facility needed to carry out their duties. The skipper shall give them access to the means of communication needed for the discharge of their duties, to documents directly concerned with the vessel’s fishing activities, including in particular the logbook and the navigation log, and to those parts of the vessel necessary to facilitate the exercise of their tasks as observer.

11.   While on board, observers shall:

11.1.

take all appropriate steps to ensure that the conditions of their boarding and presence on the vessel neither interrupt nor hamper fishing operations,

11.2.

respect the material and equipment on board and the confidentiality of all documents belonging to the vessel.

12.   At the end of the observation period and before leaving the vessel, observers shall draw up an activity report to be transmitted to the competent authorities, with a copy to the European Commission. They shall sign it in the presence of the skipper, who may add or cause to be added to it any observations considered relevant, followed by the skipper’s signature. A copy of the report shall be handed to the skipper when the observer is put ashore.

13.   Shipowners shall bear the cost of accommodating observers in the same conditions as the officers, within the confines of the practical possibilities offered by the vessel.

14.   The salary and social contributions of the observer shall be borne by the competent authorities.

15.   The two Parties shall consult each other, and interested third parties, as soon as possible as regards the definition of a system of regional observers and the choice of the competent regional fisheries organisation. Pending the implementation of a system of regional observers, vessels authorised to fish in São Tomé and Príncipe’s fishing zone under the Agreement shall take on board, instead of regional observers, observers designated by the competent São Toméan authorities in accordance with the rules set out above.

CHAPTER VIII

MONITORING

1.   In accordance with point 13 of Section 1 of Chapter I of this Annex, the European Community shall keep an up-to-date list of the vessels to which a fishing licence has been issued under this Protocol. This list shall be notified to the São Toméan authorities responsible for fisheries inspection as soon as it is drawn up and each time it is updated.

2.   On receipt of this draft list and of notification of payment of the advance (referred to in point 3 of Section 2 of Chapter I of this Annex) sent to the coastal state authorities by the European Commission, the vessel shall be entered by the competent São Toméan authority on a list of vessels authorised to fish, which shall be sent to the authorities responsible for fisheries inspection. In this case, a certified copy of this list shall be sent to the shipowner and kept on board instead of the fishing licence until the licence has been issued.

3.   Entering and leaving the zone

3.1.	At least three hours in advance Community vessels shall notify the competent São Toméan authorities responsible for fisheries inspection of their intention to enter or leave the São Toméan fishing zone; they shall also declare the overall quantities and the species on board.

3.2.

When notifying leaving, vessels shall also communicate their position. This information should preferably be communicated by fax (+ 239 222 828) or e-mail (dpescas1@cstome.net) or, for vessels not equipped with a fax or e-mail, by radio (call sign: 12,00 Hz from 08,00 to 12,00, and 8 634 Hz from 14,00 to 17,00).

3.3.	Vessels found to be fishing without having informed the competent São Toméan authority shall be regarded as vessels in breach of the legislation.

3.4.	Vessels shall also be informed of the fax and telephone numbers and e-mail address when the fishing licence is issued.

4.   Control procedures

4.1.	Skippers of Community fishing vessels engaged in fishing activities in São Toméan waters shall allow and facilitate boarding and the discharge of their duties by any São Toméan official responsible for the inspection and control of fishing activities.

4.2.	These officials shall not remain on board for longer than is necessary for the discharge of their duties.

4.3.	Once the inspection has been completed, a certificate shall be issued to the master of the vessel.

5.   Satellite monitoring

5.1.

All Community vessels fishing under this Agreement shall be subject to satellite monitoring in line with Appendix 4. These provisions shall enter into force on the 10th day following notification by the Government of São Tomé and Príncipe to the European Commission Delegation to Gabon of the entry into operation of the São Toméan Fisheries Monitoring Centre (FMC).

6.   Boarding

6.1.	The competent São Toméan authorities shall inform the flag State and the European Commission, within no more than 24 hours, of all boardings of and penalties imposed on Community vessels in São Toméan waters.

6.2.	The flag State and the European Commission shall at the same time receive a brief report of the circumstances and reasons leading to the boarding.

7.   Statement of boarding

7.1.	After the competent São Toméan authority has drawn up a statement, the skipper of the vessel shall sign it.

7.2.	This signature shall not prejudice the rights of the skipper or any defence which the skipper may make to the presumed infringement. If the skipper refuses to sign this document, he or she shall specify the reasons for doing so in writing and the inspector shall write ‘refusal to sign’ on it.

7.3.	The skipper shall take the vessel to the port indicated by the São Toméan authorities. In the case of minor infringements, the competent São Toméan authorities may authorise the boarded vessel to continue fishing.

8.   Consultation meeting in the event of boarding

8.1.

Before any measures regarding the skipper or the crew of the vessel or any action regarding the cargo and equipment of the vessel are considered, other than those to safeguard evidence relating to the presumed infringement, a consultation meeting shall be held, within one working day of the receipt of the above information, between the European Commission and the competent São Toméan authorities, possibly attended by a representative of the Member State concerned.

8.2.	At the meeting, the Parties shall exchange any relevant documentation or information helping to clarify the circumstances of the established facts. The shipowner or his or her representative shall be informed of the outcome of the meeting and of any measures resulting from the boarding.

9.   Settlement of boarding

9.1.	Before any judicial procedure, an attempt shall be made to resolve the presumed infringement through a compromise procedure. This procedure shall end no later than three working days after the boarding.

9.2.	In the event of an amicable settlement, the amount of the fine shall be determined in accordance with São Toméan legislation.

9.3.

If the case cannot be settled by amicable procedure and has to be brought before a competent judicial body, a bank security set to take account of the boarding costs and the fines and compensation payable by the parties responsible for the infringement shall be lodged by the shipowner with a bank specified by the competent São Toméan authorities.

9.4.

The bank security shall be irrevocable until the legal proceedings have been concluded. It shall be released once legal proceedings end without a conviction. Similarly, in the event of a conviction leading to a fine of less than the security lodged, the balance shall be released by the competent São Toméan authorities.

9.5.

The vessel shall be released and its crew authorised to leave the port: — once the obligations arising under the amicable settlement have been fulfilled, or — when the bank security referred to in point 9.3 has been lodged and accepted by the competent São Toméan authorities, pending completion of the legal proceedings.

10.   Transhipment

10.1.

All Community vessels wishing to tranship catches in São Toméan waters shall do so in or off São Toméan ports.

10.2.

The owners of such vessels must notify the following information to the competent São Toméan authorities at least 24 hours in advance: — the names of the transhipping fishing vessels, — the names, OMI numbers and flag of the cargo vessels, — the tonnage by species to be transhipped, — the day and place of transhipment.

10.3.

Transhipment shall be considered as an exit from São Tomé and Príncipe’s fishing zone. Skippers of vessels must submit their catch declarations to the competent São Toméan authorities and state whether they intend to continue fishing or leave São Tomé and Príncipe’s fishing zone.

10.4.

Any transhipment of catches not covered above shall be prohibited in São Tomé and Príncipe’s fishing zone. Any person infringing this provision shall be liable to the penalties provided for by São Toméan law.

11.   Skippers of Community fishing vessels engaged in landing or transhipment operations in a São Toméan port shall allow and facilitate the inspection of such operations by São Toméan inspectors. Once the inspection has been completed, a copy of the inspection and control report or a certificate shall be issued to the skipper of the vessel.