The European Union v. The United Kingdom

At a glance

Parties

The European Union (Complainant) v. the United Kingdom of Great Britain and Northern Ireland (Respondent)

Case no.

PCA Case No. 2024-45

Forum and rules

Inter-State arbitration under Article 739 of the EU–UK Trade and Cooperation Agreement (TCA); Rules of Procedure in Annex 48 TCA; Permanent Court of Arbitration as Registry; hearing at the Peace Palace, The Hague

Treaty

Trade and Cooperation Agreement between the EU and the European Atomic Energy Community and the UK, concluded on 30 December 2020 (Heading Five of Part Two, Fisheries; Annexes 35 and 38)

Tribunal

Dr. Penelope Jane Ridings (Chairperson), Prof. Hélène Ruiz Fabri, Hon. Justice Mr. David Unterhalter

Sector

Fisheries; sandeel; marine conservation

Outcome

Ruling of 28 April 2025: the English part of the sandeel fishing ban breached Article 496(1) read with Article 494(3)(f) TCA (proportionality), and in consequence Article 2(1)(a) of Annex 38; the best-available-science, Scottish proportionality and non-discrimination claims were dismissed. The UK must take the measures necessary to comply.

Amount

No damages; the remedy is compliance. The record cites UK estimates of the ban's cost to EU vessels. For English waters: EU sandeel landings worth GBP 41.2 million a year, and a net present cost to non-UK vessels of £354 million over 10 years. For Scottish waters: GBP 32.8 million over 10 years, or GBP 3.1–4.0 million a year.

The dispute

From 26 March 2024 the UK banned sandeel fishing in English waters of the North Sea, through variations to fishing vessel licences, and in all Scottish waters, through the Sandeel (Prohibition of Fishing) (Scotland) Order 2024. The stated aim was to increase sandeel biomass and benefit seabirds, marine mammals and other fish. EU vessels, mainly Danish, hold almost all the North Sea sandeel quota and bore nearly all of the cost. The EU claimed that the ban was not based on the best available scientific advice (Articles 496(1)–(2) with Article 494(3)(c) TCA) and was disproportionate and discriminatory (Article 494(3)(f)). It also claimed that the ban breached its right of full access to UK waters during the adjustment period (Article 2(1)(a) of Annex 38). The UK relied on its regulatory autonomy, the precautionary approach and the scientific advice of Natural England/Cefas/JNCC, the Scottish Government and ICES. It argued that "having regard to" the Article 494(3) principles is only a procedural obligation.

Key holdings

1. Best-available-science claim dismissed. "Available" advice includes advice that could reasonably have been obtained. A complainant may attack advice as irredeemably flawed without producing competing science. The flaws the EU identified in the Natural England/Cefas/JNCC Ecopath with Ecosim model did not deprive it of its status as best available scientific advice, alone or together. These were the omission of Norwegian catches from the 58% reference point, which likely overestimated biomass gains, and the presentation of seabirds as a single group. Spatial and age-structured data were not reasonably obtainable. Both the English and the Scottish parts of the ban bore an objective relationship to the advice. Ruling, pp. 176–211
2. "Having regard to" the principle of "applying" proportionate measures is more than procedural formalism but does not require the measure to conform to the principle. The decision-maker must identify the relevant costs and benefits, including the impairment of TCA rights, and engage with them in an actual weighing and balancing. The Tribunal reviews whether this was done; it does not substitute its own judgment. The WTO necessity test is not the standard; alternative measures are a useful analytical tool, not a requirement. Ruling, pp. 214–227
3. English measure inconsistent with Article 496(1) read with Article 494(3)(f). The decision documents considered the economic costs to EU industry but not the EU's rights of full access under Annex 38 during the adjustment period ending 30 June 2026. Nor did they analyse why the measure was urgent enough to require action during that period. This compromised the weighing and balancing. Ruling, pp. 233–244
4. Scottish measure not inconsistent with Article 496(1) read with Article 494(3)(f). The Scottish decision-maker quantified the costs to EU vessels (GBP 3.1–4.0 million a year) and weighed them against the expected environmental benefits. It considered the adjustment period and the TCA access rights, and it explained the urgency by reference to seabird mortality from highly pathogenic avian influenza in 2022. It also considered partial closures and rejected them because of the risk of displacement. Ruling, pp. 245–255
5. No breach of the principle of non-discrimination. The ban applies to all vessels. Its differential impact follows from the Annex 35 quota shares (UK 3.11%, EU 96.8% in 2024), and there is a clear nexus with the legitimate ecosystem objective. A Party need not take quota shares into account when choosing which stock to regulate. Ruling, pp. 255–257
6. The EU's Annex 38 claim was purely consequential. Because the English measure breached Article 496(1) read with Article 494(3)(f), the UK is in breach of Article 2(1)(a) of Annex 38. Under Article 746 TCA, the UK must take the necessary measures to comply with rulings (ii) and (v). Ruling ¶ 747
7. Interim review: the UK's complaint of procedural unfairness was rejected. The EU's reliance on Annex 38 in the proportionality analysis had been argued throughout the proceedings, and the UK chose to answer it on legal interpretation. Interim review is not an appeal; certain paragraphs were clarified, but the findings were maintained. Ruling, Annex (Interim Review), pp. iv–x

Procedural history

1. 16 April 2024The EU requests consultations under Article 739 TCA. They end without a mutually agreed solution.
2. 25 October 2024The EU serves its request for the establishment of an arbitration tribunal.
3. 18 November 2024Arbitration Tribunal established. Eleven amicus curiae submissions are received between 18 and 28 November 2024.
4. 22 November 2024Procedural Order No. 1 sets the timetable, fixes the hearing at the Peace Palace and provides for amicus submissions.
5. 17 January 2025Procedural Order No. 2 sets the hearing schedule; the hearing is to be open to the public.
6. 28–30 January 2025Hearing at the Peace Palace, The Hague.
7. 27 March 2025Interim Report delivered to the Parties.
8. 10–16 April 2025Both Parties request review of precise aspects of the Interim Report; the EU comments on the UK's request.
9. 28 April 2025Ruling: breach found for the English measure and, in consequence, for Annex 38; the other claims are dismissed.

Tribunal, counsel and experts

Decided by

• Penelope Jane Ridings President, Arbitration Tribunal
• Hélène Ruiz Fabri Co-arbitrator, Arbitration Tribunal
• David Unterhalter Co-arbitrator, Arbitration Tribunal

For the claimant

European Commission, Legal Service

For the respondent

Foreign, Commonwealth & Development Office, Legal Directorate · Essex Court Chambers · FTB Chambers · 3 Verulam Buildings · Baker & McKenzie · Virginie Tassin Campanella

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Keywords

• sandeel
• North Sea
• EU–UK Trade and Cooperation Agreement
• fisheries management
• best available scientific advice
• proportionality
• non-discrimination
• de facto discrimination
• regulatory autonomy
• adjustment period
• Annex 38 access to waters
• ICES
• Ecopath with Ecosim
• seabirds
• precautionary approach
• interim review
• amicus curiae
• Brexit fisheries

Summary generated with AI from the published documents — refer to the award for the authoritative text.