04 November 2024

UKandEU's Reland: Eel or no eel? An early test for the UK-EU reset

Amid all the talk of a UK-EU ‘reset’, few would have expected one of the first items on the agenda to be the fate of sand eels. Yet, at the end of last month, the European Commission requested the establishment of an arbitration tribunal, to rule on whether a UK ban on sand eel fishing is compatible with the UK-EU trade and cooperation agreement (TCA).

The fishing of sand eels in English North Sea and Scottish waters was recently banned in order to protect depleted stocks, which are a vital food source for local marine wildlife including puffins and porpoises. The ban has wide support from normally pro-EU environmental groups in the UK, even though the EU questions whether a blanket ban is ‘evidence-based, proportionate and non-discriminatory’. The Danish government argues that it amounts to de facto discrimination against Danish vessels, who take 99% of the sand eel catch in that area.

An arbitration tribunal should soon be set up consisting of one UK and EU nominee each, plus a mutually agreed chair, to rule on the case within 130 days. If the UK is found in breach, it will be required to take measures to redress the issue (most likely a partial lifting of the ban). If it refuses to comply, the EU would be entitled to take retaliatory measures, such as imposing trade tariffs.

It is not the place of this blog – absent both the legal and marine biological expertise – to predict the outcome of the tribunal. However, the case does highlight three important lessons for the UK-EU relationship which are worth reflecting on.

First, esoteric issues like sand eels are the very essence of good relations. The UK-EU relationship is first and foremost a legal one, governed by the TCA, its annexes and associated agreements. The EU’s top priority is ensuring that the commitments in the treaties are respected in full. This means seemingly trivial matters – the transport of bivalve molluscs, lorry drivers’ sandwiches – often become incendiary.

The UK thus needs to take proceedings seriously: if the sand eel question cannot be quietly and calmly resolved, the acrimony risks polluting the wider relationship. The UK has several options in this regard: hope the arbitration panel rules in its favour; accept the panel’s decision if it rules against it; or propose compromise measures to the EU so that it terminates arbitration proceedings....

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