Why A Court Case About Sandeels Is More Important Than It Might Sound

The relationship between the United Kingdom (“UK”) and the European Union (“EU”) is governed by the post Brexit Trade and Cooperation Agreement (“TCA”). A significant legal dispute between the parties is to play out later this month.

The dispute concerns whether the UK’s right to restrict fishing trawlers for conservation reasons unnecessarily restricts agreed EU fishing rights in UK waters. This is the first time the parties have been locked in a courtroom battle since Brexit, and it is likely that the outcome of the case will have far reaching implications for future UK-EU trade relations.

The case centres around ‘sandeels’, a collective name for several species of small fish. Sandeels are not caught for culinary reasons but are a favourite food of other fish species such as cod and haddock, as well as threatened seabirds such as puffins. The UK Government, in March 2024, banned all vessels from catching sandeels in English waters to protect the wildlife that depend on them, with a similar ban also being adopted by the Scottish Government. It is the UK Government’s position that continued fishing of sandeels in the North Sea along with the effects of climate change poses a threat to the overall number of sandeels and therefore to the marine ecosystem. The UK had previously banned its own vessels from fishing sandeels in 2021 but upon the decision in March 2024 all vessels were banned from fishing sandeels in UK waters. The ban was introduced following a period of consultation, in which DEFRA (the UK Government’s Department for Environment, Food & Rural Affairs) stated that while there would be an impact on EU fishermen there was sufficient evidence to support a total ban in the name of supporting marine wildlife.  The ban was met with plaudits from conservationists and since the change of UK Government in July 2024 the ban has remained in place. The EU claim that the ban unfairly targets European fishing vessels, particularly Danish fishing vessels, as Danish fishermen heavily rely on the species for animal feed and fish oil production. It is submitted by the EU that the UK’s restriction violates the rights of Danish fishermen under the TCA, which, amongst other things, provides access for EU vessels to a portion of shared fishing resources in UK waters.

The dispute is heading for a three-day tribunal hearing after talks to resolve the matter were unsuccessful. The case will be heard at the Permanent Court of Arbitration, a dispute resolution body in The Hague, Netherlands. There will be a panel of three mutually agreed international trade judges. The judges will need to assess the balance of the UK’s right to take conservation measures against the right of EU vessels to gain access to UK waters to fish for sandeels commercially. The EU question whether there is sufficient scientific evidence to support the ban as well as asking whether the ban is proportionate given the impact created on the Danish fishing industry. It is the UK’s position that the ban is supported by sufficient scientific evidence and is necessary to support another part of the TCA, being that parties must fish sustainably. A decision in the case is expected no later than April 2025.

Regardless of the outcome, with the case being the first time the parties have gone to the Court of Arbitration since Brexit, it will be a decision everyone will have eyes on, not least for its potential to shape the future dynamics of UK-EU relations in respect of fisheries and elsewhere.