Context
When the UK joined the European Economic Community (EEC) in 1973 it was agreed that the Member States would have exclusive national fishing rights to 12 nautical miles, unless other Member State could prove historic fishing activity between 6 to 12 miles. This changed when it was agreed under international law that countries had further rights over the sea up to 200 nautical miles from their shores.
When these new Exclusive Economic Zones (EEZs) were introduced in the 1980’s, EU competence for fisheries was extended to 200 miles off the coast.
Fisheries in the UK and EU are currently managed under the Common Fisheries Policy (CFP). As set out by the Commission, the policy aims to ensure that fishing is “environmentally, economically and socially sustainable” and to allow fair competition between fishers. The stated aim is that between 2015 and 2020 catch limits should be set that are sustainable and maintain fish stocks in the long term.
Under the CFP, every year, the European Commission proposes a total allowable catch (TAC) for each commercial species for each fishery area within the EU 200-mile limit. TACs are then shared between EU countries in the form of national quotas. The TACs for each area are agreed by the Council of Ministers at the Agriculture and Fisheries Council, based on scientific advice on sustainable catch levels and the principle of maximum sustainable yields (MSY).
The principle of equal access and relative stability are applied under EU Regulation 1380/2013 on the Commons Fisheries Policy. This sets out that “fishing opportunities allocated to the Member States shall ensure relative stability of fishing activities of each Member State for each fish stock or fishery”.
A fixed percentage of each TAC is allocated to each Member State based on their agreed historic fishing activity, and the Member States share access to fishing grounds from 12-200 miles from the coast based on this principle of relative stability. Article 16 of EU Regulation 1380/201 3 allows each Member State to decide how its share of the fishing opportunities (or TACs) are allocated to vessels flying its flag.
In addition, Article 17 requires that the Member States “use transparent and objective criteria including those of an environmental, social and economic nature” in doing so.
Member States set their own criteria for allocating fishing opportunities for their flagged vessels (which may or may not be foreign owned). In the UK, TACs are divided among the devolved administrations who set individual fishing quotas. Quotas are allocated to vessels according to their historical landings. These quotas, or licence entitlements, are transferable and can be bought and sold with each vessel, or when a vessel sinks, is scrapped or deregistered. These sales are commercial transactions in which the regulators do not get involved.
There has been a criticism of the CFP from a range of stakeholders, which is summarised by the Institute for Government. These include the criticisms that it is an overly centralised, top-down approach for managing fisheries and not responsive to local stock levels; that it allows too much access to vessels from other EU countries, and that it does not offer enough protection to the marine environment and fish stocks.
CFP and UK
In addition to fisheries management, the CFP covers negotiation and cooperation with non-EU countries, marketing and trading standards for fishery products, and aquaculture.
The CFP also provides funding to support a transition to more sustainable fisheries and support for coastal communities. This is provided through the European Maritime and Fisheries Fund (EMFF), which runs from 2014 to 2020, and includes fisheries and aquaculture.
The UK investment package for this period is €309m with an EU contribution of €243m. 58 The fund:
- helps fishermen in the transition to sustainable fishing;
- supports coastal communities in diversifying their economies;
- finances projects that create new jobs and improve quality of life along European coasts; and
- makes it easier for applicants to access financing.
A 2016 NAO report shows that the largest share of this funding has been allocated to Scotland (€108 million), followed by England (€97 million), Northern Ireland (€24 million) and Wales (€15 million).
In response to a question on an EM FF replacement after Brexit, the Government stated that: Decisions on allocations to Departments for replacement EU funding are yet to be taken. This includes the European Maritime and Fisheries Fund. Decisions will be made in light of wider UK
strategic priorities and other domestic spending decisions. There were 4,000 businesses in the fishing industry in 2016. These businesses employed 24,000 people and contributed £1.4 billion to the
UK economy in terms of Gross Value Added (GVA – a measure similar to GDP). The fish processing and preserving part of the industry employed more people than the fishing part of the industry – 15,000 compared with 8,000. But the processing industry was less significant in terms of overall economic output and involved fewer businesses.
Following Brexit, the UK will take full responsibility for fisheries in the UK’s EEZ, including quota setting. 61 However, it will still have to comply with any agreement reached with the EU on access for EU vessels to UK waters, and vice versa.
The draft withdrawal agreement
The UK would also have to comply with the requirements of the UN Convention on the Law of the Sea (UNCLOS) in relation to the management of fisheries. UNCLOS requires coastal states to give other states access to the surplus of the allowable catch in its EEZ and emphasises the need to minimise economic dislocation in States whose nationals have habitually fished in the zone. It also imposes an obligation to co-operate with other coastal states on the management of shared stocks or stocks of associated species.
The Fisheries Minister, George Eustace, gave evidence to the Lords Energy and Environment Sub Committee on 21 February 2018. In his evidence he provided detail of the Government’s expectations for fisheries and access to the UK’s EEZ. With regard to co-operating with neighbours on shared stocks, he stated that the UK “absolutely intend to do that”. 63 He also referred to the introduction of changes to quota allocations for neighbouring countries and the “need to do that over time”.
He set out the Government’s aim with regard to annual fisheries negotiations with third parties such as Russia, Greenland, the Faroes, and Norway:
What everybody recognises is that it is legally very difficult to envisage a situation where the EU would continue to represent the UK when we cease to be a member of the EU. Therefore, we need something different and a bit special in how we handle fisheries. […] We need to make sure that that is considered and reflected in any transition deal.
The Minister also raised the issue of the North East Atlantic Fisheries Commission, which requires notice to join, which the UK will not technically be allowed to do until it leaves the EU.
The Prime Minister referred to fisheries in her Mansion House speech on
2 March 2018:
We are also leaving the Common Fisheries Policy. The UK will regain control over our domestic fisheries management rules and access to our waters. But as part of our economic partnership, we will want to continue to work together to manage shared stocks in a sustainable way and to agree on reciprocal access to waters and a fairer allocation of fishing opportunities for the UK fishing industry.
The EU position is that fisheries should form part of the transition agreement, with the UK complying fully with the CFP until the transition period ends. 68 Quotas are set on a calendar year basis. A 21 -month transition period coincides with the 201 9 quota year-end, and removes the need for reaching agreement on how to set quotas for the first three months of 2020.
Various Issues
The Commission’s first draft withdrawal agreement in February 2018 included a reference in Article 125 to consulting the UK on setting UK fisheries opportunities during any transition period:
As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period prior to the end of the transition period, the United Kingdom shall be consulted by the European Commission in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations.
The UK Government response proposed an agreement with the EU, rather than consultation, on the setting of fishing quotas for 2019. It also proposed that the UK “shall participate alongside the EU and other coastal States in international fisheries negotiations”.
The second EU draft included significant amendments, setting out in detail how the EU intends to consult the UK when setting fishing quotas. It also stipulated that the EU may “exceptionally” invite the UK to be part of the EU delegation at international negotiations. It now also makes clear the intention to maintain quota allocation based on the relative stability principle:
As regards the fixing of fishing opportunities within the meaning of Article 43(3) TFEU for any period falling within the transition period, the United Kingdom shall be consulted in respect of the fishing opportunities related to the United Kingdom, including in the context of the preparation of relevant international consultations and negotiations.
For the purpose of paragraph 1, the Union shall offer the opportunity to the United Kingdom to provide comments on the Commission Annual Communication on fishing opportunities, the scientific advice from the relevant scientific bodies and the Commission proposals for fishing opportunities for any period falling within the transition period.
Notwithstanding Article 124(2)(b), with a view to allowing the United Kingdom to prepare its future membership in relevant international fora, the Union may exceptionally invite the United Kingdom to attend, as part of the Union delegation, international consultations and negotiations referred to in paragraph 1 of this Article, to the extent allowed for the Member States and permitted by the specific forum.
Without prejudice to Article 122(1), the relative stability keys for the allocation of fishing opportunities referred to in paragraph 1 of this Article shall be maintained.
This Article draws on BRIEFING PAPER Number 8269, 23 March 2018 Brexit: the draft withdrawal agreement. UK public sector information is reproduced pursuant to the Open Government Licence The Legal Materials contain UK public sector information licensed under the Open Government Licence v3.0. The Licence is available at http://www.nationalarchives.gov.uk/doc/open-government-licence/version/3/ (the UK Licence).
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