The European Union (EU) has started proceedings against the UK under the post-Brexit trade deal dispute settlement mechanism regarding the UK’s decision to prohibit the fishing of sand eel in English waters within the North Sea and all Scottish waters.
England and Scotland announced a prohibition on commercial sand eel fishing from March 2024, a move conservationists welcomed. Sand eels – small, eel-like fish which typically live in vast shoals – are a vital food source for some of the UK’s most vulnerable seabirds and marine mammals, like puffin, kittiwakes, and harbour porpoises, as well as commercially important fish species like haddock and whiting.
Commercial fishing for sand eel was carried out entirely by European vessels. In recognition of the importance of the species to marine biodiversity, no fishing quota had been allocated to UK vessels since 2021.
The Danish fishing industry raised particular concerns over the ban with fishing associations arguing that the UK’s move violated the UK-EU Trade and Cooperation Agreement (TCA) and said their members heavily rely on the English section of the Dogger Bank. There has been disquiet in other countries about the closure of the sand eel fishery but also other fisheries restrictions, including in Sweden and France. In March, the French Minister for Europe Jean-Noël Barrot visited fishermen in Boulogne-sur-Mer who depend on UK areas for much of their catch and said that France supports them and is “resisting these arbitrary decisions by the United Kingdom” calling the fishing bans “potentially discriminatory“.
Photo: Michael Jerrard
EU announcement
The EU said in its announcement that the closure ‘significantly restricts access for EU vessels to this fishery. The EU questions the compatibility of the full and permanent closure of the fishery with the principles and obligations under the TCA.
Under the TCA, the EU and UK have agreed to apply evidence-based, proportionate and non-discriminatory measures for the conservation of marine living resources. The EU remains committed to cooperate with the United Kingdom to achieve these aims.
…the EU remains open to reaching a mutually agreeable solution with the UK that settles this matter.’
The EU commissioner for environment, oceans and fisheries, Virginijus Sinkevičius said: “The UK’s permanent closure of the sand eel fishery deprives EU vessels from fishing opportunities, but also impinges on basic commitments under the EU-UK Trade and Cooperation Agreement”
Under the post-Brexit trade agreement, the EU fishing fleet retains reciprocal access to UK waters. Denmark holds over 90% of the combined EU/UK quota for sand eel, with around a third allocated to areas in UK waters, mostly Scottish.
Reacting to the Commission’s move, a government spokesperson told Euronews that the UK’s ban on sand eel fishing was fully compliant with its obligations under the trade and cooperation agreement, and applied equally to UK and non-UK vessels.
“This was a necessary step to safeguard vulnerable seabird populations, including species like kittiwakes who are at serious risk, and builds on domestic measures already in place. The UK has not allocated any quota to fish sand eel to UK vessels in three years,” the spokesperson said.
Brexit – “a deal is a deal”
Jens Schneider Rasmussen, Chairman of Denmark’s Pelagic Producer Organisation previously said: “The UK’s closure of the sandeel fishery has been decided in a process devoid of independent scientific advice and proportionality. The decision clearly violates the Brexit agreement made on December 24, 2020. Where I come from, a deal is a deal. If you break a deal, there are consequences”.
As written in the Financial Times, “This is a humiliation for the EU,” said Svend-Erik Andersen, chair of the Danish Fishermen’s Association. “With the Brexit agreement, Danish fishermen paid dearly for access to British waters. Now, the UK is breaking the agreement. It is beyond criticism.”
Background
The Trade and Cooperation Agreement between the EU and the UK applies since 1 January 2021. Under the ‘Fisheries Heading’ of the TCA, the EU and the UK committed to cooperate in ensuring that fishing activities for shared stocks in their waters are environmentally sustainable and contribute to achieving economic and social benefits with all adopted fisheries management measures to be proportionate, non-discriminatory, and based on the best available scientific advice.
Pursuant to the TCA, the EU and the UK are committed to holding consultations annually to agree the TACs for shared stocks listed in Annex 35 of the TCA. Sand eel is included in that Annex as it is fished in EU waters as well as UK waters.
Reaction to sand eel closure and EU challenge
At the time of the announcement, Oceana UK’s executive director, Hugo Tagholm, speaking to Oceanographic, said: “The new ban on industrial fishing for sandeels is unequivocally the right decision and should be applauded. Sandeels are tiny fish – but their impact is vast.”
“The next steps are to extend this ban beyond the North Sea to throughout UK waters, working in partnership with the devolved administrations.”
Beccy Speight chief executive of the RSPB said when the ban was announced: “[the] announcement is a vital lifeline from our Government for our seabirds when they need it most. To support the recovery of our seabirds, the RSPB has long recommended an end to industrial Sandeel fishing in UK waters to secure vital food sources for these amazing birds.”
Charles Clover, of the Blue Marine Foundation, commenting on the French government’s reaction to the UK’s bottom-trawling ban, said the TCA clearly permitted fishing restrictions provided they were applied equally. “This is hypocrisy by the French,” he said. “They are not looking at the small print.”
Katie-jo Luxton, the RSPB’s director of conservation responded to the latest developments from the EU, and said:“This outrageous challenge by the EU Commission on the UK’s Sandeel fisheries closure is seeing the future of beautiful birds like our much-loved Puffins kicked around like a political football.
“The UK Government must stand firm on the Sandeel closure across the English North Sea and all of Scottish waters. With species like our seabirds in steep decline we need to be doing so much more to safeguard the future of our wildlife, not stamping on the green shoots of progress as soon as it is made.”
The Danish Fishermen’s Association has welcomed the European Commission’s decision to initiate a case against the UK. “It is deeply frustrating that the UK has closed the sandeel fishery on thin grounds. That being said, it is positive that the EU Commission agrees that the UK has violated the Brexit agreement, and I hope that the UK will capitulate,” said Svend-Erik Andersen, Chairman of the Association.
Next steps
The European Union has invoked the TCA resolution procedures with a view to finding a mutually agreeable solution to the dispute. If consultations do not reach a satisfactory solution within 30 days, or more if agreed by both Parties, the EU may request the establishment of an arbitration tribunal to adjudicate on the compatibility of the UK’s measures with the TCA.
The full text of the EU’s request for consultation with the UK can be found here.
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