The Sandeel Case: Arbitral tribunal rules partially in favor of EU in case against UK

The arbitration case brought by the EU against the UK following the country’s decision to ban sandeel fishing in UK waters has now been decided. The arbitration tribunal has ruled in favor of the EU that the ban on sandeel fishing in the UK part of the North Sea was disproportionate and thus in violation of the current Trade and Cooperation Agreement (TCA) between the EU and the UK. In other complaints, the ruling did not agree with the EU arguments.

The case stems from the Trade and Cooperation Agreement (TCA) that was concluded between the EU and the UK after Brexit and entered into force in 2021. The agreement sets out, among other things, the framework for fisheries and access to waters, and it was in this context the EU brought the case before the arbitral tribunal.

What the court upheld:

The court found that the UK ban of sand eel fishery in English waters constitutes an excessive interference with the rights of EU fishermen and does not take sufficient account of the balance between environmental and socio-economic considerations, as required by the TCA. The ban is therefore ruled contrary to the agreement.

The UK now has 30 days to inform how it will comply with the ruling. The ruling is binding and cannot be appealed.

What the court did not agree with:

The arbitration court rejected the EU’s argument that the ban in Scottish waters was also disproportionate. Here, the court found that the Scottish authorities had made a reasonable and sufficient assessment of relevant considerations.

In addition, the court rejected the claim that the UK had failed to base its decision on the “best available scientific advice”. Both bans – the English and Scottish bans – were found to be based on sufficient scientific evidence.

The UK authorities announce that the closure of Scottish waters will remain in place as the court has ruled in favor of the UK that this decision was in accordance with the TCA. With regard to English waters, the UK acknowledges that it must comply with the arbitration award within the time limit set by the TCA (30 days). In addition, the closure of the English waters will remain in force while the process of ensuring compliance with the award is ongoing. You can also find the statement from the UK here.

The Arbitration Tribunal thus partially upheld the EU’s claim against the United Kingdom. It is positive that the court found that the UK ban in English waters constituted an excessive interference with the rights of EU fishermen and did not take sufficient account of the balance between environmental and socio-economic considerations, as required by the TCA. The ban was therefore ruled contrary to the agreement.

However, it is less positive that the court did not uphold the claim regarding what constitutes the best available scientific advice. EFFOP have repeatedly emphasized that the UK’s decision goes against the impartial and scientific advice from ICES in our consultation responses to the UK and Scotland. The management of sandeel fisheries precisely takes into account the ecosystem and the various marine species that depend on sandeel as an important part of their food chain. EFFOP looks forward to how the UK will comply with the ruling.

Read more about the decision here.