On 28 April 2025 an Arbitral Tribunal (Trade and Cooperation Agreement (TCA), Article 740) established in UK-Sandeel (The European Union v. the United Kingdom of Great Britain and Northern Ireland) issued its Ruling. The European Union challenged the UK’s sandeel fishing prohibition which is composed of two distinct measures (one measure taken by the Scottish Government in respect of Scottish waters and one measure taken by the UK Government in respect of English waters) but both being attributable to the UK as a Contracting Party to the Trade and Cooperation Agreement (Ruling, paras 418-427). In essence the EU challenged the two measures on the basis (a) the fisheries management measures were not based on ‘best available science’ (TCA, Art 496(2)) and (b) the fisheries management measures did not have regard to agreed principles, namely proportionality and non-discrimination (TCA, Art 494(3)(f)). When interpreting the TCA, the Arbitral Tribunal included UNCLOS, WTO Agreements, and fisheries instruments, in particular the FAO Code of Conduct, among the relevant rules of international law.
So long as they are consistent with the TCA, the Parties agreed that fisheries management measures, including fishing prohibitions which impair the rights of a Party, may be adopted to pursue legitimate objectives in respect of the marine environment. The Tribunal affirmed that the rights of other States imposes limits of the exercise of coastal State rights, but “that there is no obligation under UNCLOS to grant access to the surplus of the allowable catch to a particular State” (paras. 447-448). The TCA reaffirms that Parties granted access to the waters of another Party have access conditioned by compliance with the conservation and management measures adopted, and said Party must ensure compliance by its vessels (para 463). But, the TCA does not leave Parties with unfettered regulatory autonomy in respect of fisheries management. The Tribunal agreed that “the requirements laid down in Article 494, Article 496 and Annex 38 to the TCA are important limits to the exercise of regulatory autonomy to adopt fisheries management measures” (para. 467).
The Arbitration Tribunal found that both the English and the Scottish parts of the measure were based on best available scientific advice and that there was an objective connection between the scientific advice and the sandeel fishing prohibition in UK waters:
593. The Arbitration Tribunal therefore finds that the European Union has failed to demonstrate that the sandeel fishing prohibition in UK waters is inconsistent with the United Kingdom’s obligations under Article 496(1) and 496(2) of the TCA, read together with Article 494(3)(c) of the TCA.
On proportionality and non-discrimination, the Tribunal noted the principles must inform the decision-making process on fisheries management measures. “[C]onsideration will be informative but not determinative of the decision to adopt a measure” (para 605).
Proportionate measures “must be adopted ‘for the conservation of marine living resources and the management of fisheries resources’ and be [an] apt or appropriate [means] to secure or contribute to that objective'”, including a weighing and balancing of the measure’s environmental, economic and social costs and benefits (paras 623-624).
On the measure concerning English waters:
689. The failure to take into account the rights of the European Union under the TCA and their systemic importance in securing stability during the adjustment period compromised the weighing and balancing exercise such that the Arbitration Tribunal is of the view that the decision-maker did not have regard to the principle of applying a proportionate measure.
690. For the above reasons, the Arbitration Tribunal finds that the United Kingdom’s decision to close English waters to sandeel fishing was inconsistent with the requirement in Article 496(1), read together with Article 494(3)(f) of the TCA, to have regard to the principle of applying a proportionate measure for the conservation of marine living resources and the management of fisheries resources.
On the measure concerning Scottish waters:
725. Regard was had not only to the benefits of the sandeel prohibition in Scottish waters, but also to the economic costs to the UK and EU fishing and processing industries and the impairment of the rights of the European Union during the adjustment period. Furthermore, these considerations were applied in the actual weighing and balancing that was undertaken by the Scottish decisionmaker. Attention was paid to the TCA adjustment period, ending 30 June 2026, and the need to take measures to build the resilience of Scottish seabird populations due to recent significant declines. In this, the Scottish decision can be contrasted with that of the United Kingdom in respect of the sandeel fishing prohibition in English waters.
726. The Arbitration Tribunal, therefore, finds that the Scottish measure to close Scottish waters to sandeel fishing is not inconsistent with the requirement in Article 496(1), read together with Article 494(3)(f) of the TCA, to have regard to the principle of applying a proportionate measure. As explained above, the decision-maker had regard to the principle of applying a proportionate measure as it took into account the relevant considerations and applied these in a weighing and balancing exercise, thereby satisfying the requirement to “have regard to” the principle of applying a proportionate measure.
On non-discrimination, the Tribunal noted “the principle applies to the measure itself, its application and its consequences, and refers to both de jure and de facto discrimination. This requires consideration of whether the design, content and application of the measure reflects the principle of non-discrimination” (para 631). The EU claim concerned de facto discrimination. “De facto discrimination may occur where differential treatment is not based on a legitimate regulatory objective or where there is a lack of a clear nexus between the differential treatment and the regulatory objective” (para 730). The Tribunal found:
731. […] The differential impact on vessels of the United Kingdom and European Union is due to the quota shares set out in Annex 35 to the TCA.
732. The Arbitration Tribunal does not consider that a Party is required to take into account the TAC quota shares in deciding on a fisheries management measure. Rather, each measure should be decided on in light of its legitimate objectives and the requirement to have regard to applying the principle of non-discrimination […]
733. The Arbitration Tribunal considers that there is a clear nexus between the differential treatment and the legitimate objective, which is to close all UK waters to all UK and EU vessels in order to provide ecosystem benefits.
734. For the above reasons, the Arbitration Tribunal finds that the United Kingdom’s decision to close UK waters to sandeel fishing was not inconsistent with the requirement in Article 496, read together with Article 494(3)(f) of the TCA, to have regard to the principle of applying nondiscriminatory measures for the conservation of marine living resources and the management of fisheries resources.
On the alleged breach of the obligation to grant full access to fish sandeel pursuant to Annex 38 to the TCA:
743. The Arbitration Tribunal is of the view that the European Union has structured its claim of a breach of Article 2(1)(a) of Annex 38 as a purely consequential claim. The claim for a breach of Article 2(1)(a) of Annex 38 therefore stands or falls on the basis of the findings in respect of the claims under Article 496, read together with Article 494 of the TCA. In this sense “the consequential element is symmetrical”. Once a breach of Article 496(1), read together with Article 494, has been found, that is the end of the Arbitration Tribunal’s remit.
744. The Arbitration Tribunal therefore finds, on the basis of its reasoning in Section V.D.3 that the United Kingdom’s decision to close English waters to sandeel fishing was inconsistent with the requirements of Article 496(1), read together with Article 494(3)(f) of the TCA, to have regard to the principle of applying a proportionate measure for the conservation of marine living resources and the management of fisheries resources, and that in consequence, therefore, there has been a breach of Article 2(1)(a) of Annex 38 of the TCA.
For further information see previous reporting.
De Maribus 