Back in early 2024 the UK and Scottish Governments introduced a ban on sandeel fishing in Scottish waters and English waters of the North Sea in a move conservationists hailed as critical for saving the UK’s globally important seabird colonies.
Now a challenge from the EU on the ban is set to be heard in an arbitration tribunal under the post-Brexit Trade and Cooperation Agreement (TCA) at the Permanent Court of Arbitration in The Hague from 28 to 30 January 2025.
The EU argues that the ban discriminates against Danish vessels that fish sandeel commercially, breaching the post-Brexit trade deal. It will mark the first time the two sides have gone to arbitration under the 2021 trade agreement agreed by Boris Johnson.
The ban has outraged Danish fishermen, who sell sandeel to animal feed and fish oil producers and under the post-Brexit trade deal hold the right to fish the overwhelming majority of the EU’s share of the species in UK waters. Jens Schneider Rasmussen, Chairman of Denmark’s Pelagic Producer Organisation 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”. The closure would cost the Danish fishing industry €18m annually, Rasmussen said, and would hit the processing industry.
Commercial fishing for sandeel was recently carried out entirely by European vessels with no fishing quota having been been allocated to UK vessels since 2021.
Sustainability and resilience
Sandeel are an important food source for many species, including marine mammals, seabirds and predatory fish, and support the long-term sustainability and resilience of the marine ecosystem.
Katie-jo Luxton, the RSPB’s director of conservation, said in October 2024 in response to news of the call for an arbitration tribunal: “The EU’s decision to trigger an arbitration process over the UK’s sandeel fisheries closure flies in the face of its commitment to protect and restore marine ecosystems. It is a scandalous attempt to reverse a hard-won victory for under-pressure seabirds like Puffins and Kittiwakes, as well as the many other marine species that depend on sandeels.
“Simply shameful”
The dispute centres on whether the UK’s right to restrict trawlers for conservation reasons unnecessarily restricts agreed EU fishing rights, reported the BBC.
In its submissions to the court, the EU has argued the geographical scope of the ban is not justified by the scientific modelling on stock levels, or the “economic and social impacts” on Danish fishing communities.
In a response published by the court, the UK has defended the scientific advice behind the ban, adding that the EU has failed to point out “any superior model” available at the time. It added that the UK was within its rights to bring in the ban, highlighting that the trade agreement itself commits both sides to taking account of the impact of fishing on marine diversity.
The EU challenged the ban in April 2024, with the UK government spokesperson pointing out 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. The EU challenge was met with dismay by NGOs, with Ariel Brunner, director of BirdLife Europe and Central Asia, saying that the EU’s decision to challenge the ban “is simply shameful”, and that the European Commission “is seeking to prevent the UK from taking urgently needed action which the EU itself should have taken long ago”.
Mairi Gougeon MSP, the Scottish Government’s Cabinet Secretary for Rural Affairs, Land Reform, and Islands, pointed out the legality of the sand eel fishing ban and its compatibility with the UK-EU post-Brexit TCA earlier in 2024.
The tribunal could uphold the UK’s position – or order the UK to change or drop its ban, in which case Brussels could ultimately retaliate with tariffs on British exports if ministers refused to comply.
It comes as the UK prepares for tricky negotiations with the EU over new catch limits from June next year, when current arrangements under the trade deal run out.