Following Brexit, the UK will no longer be part of the EU Commons Fisheries Policy (CFP). It will become an independent coastal state and will be fully responsible for managing fisheries in the UK’s Exclusive Economic Zone (EEZ) of 200 miles. This will include setting total allowable catches (TACs), distributing quotas and determining who has access to fisheries.430 However, access for EU vessels to UK waters and vice versa is likely to be part of any agreement reached with the EU as part of a future relationship.
The UK will continue to be bound by the requirements of the UN Convention on the Law of the Sea (UNCLOS) and how they relate to the management of fisheries in any Brexit outcome. 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 provides an obligation to co-operate with other coastal states on the management of shared stocks or stocks of associated species.431
The Fisheries White Paper Sustainable fisheries for future generations, published in July 2018, set out the Government’s intention to continue to co-operate closely with the EU and other coastal states on the sustainable management of fish stocks that cross borders, and states that “any decisions about giving access to our waters for vessels from the EU, or any other coastal states including Norway, will then be a matter for negotiation”.432
Setting the system for quota distribution to individual fishing vessels is already the responsibility of Member States and therefore largely unaffected by any Brexit agreement. However, the White Paper makes clear that the Government is considering some changes to how fishing effort is set post-Brexit, particularly for smaller and inshore fishing vessels.433
For further information on the UK’s current approach to fisheries management within the context of the Common Fisheries Policy, see Commons Library Briefing Paper, Fisheries Management in the UK.
11.1 Priorities for fisheries
The fisheries sector is very diverse in the UK, with both a significant inshore and offshore fleet. There are also differences in the size and type of fishing vessels across the devolved administrations.434 Both EU quota species and non-quota species are important for different parts of the sector.435 Non-quota species do not fall under the CFP and include most shellfish, which is
430 Article 61(1) of the UN Convention on the Law of the Sea (UNCLOS) states that: “The coastal State shall determine the allowable catch of the living resources in its exclusive economic zone.”
431 UN Convention on the Law of the Sea (UNCLOS)
432 Defra, Fisheries White Paper Sustainable fisheries for future generations, published July 2018
433 Defra, Fisheries White Paper, 4 July 2018
434 MMO, UK Sea Fisheries Statistics 2016, 28 September 2017
435 MMO, UK Sea Fisheries Statistics 2016, 28 September 2017
often high value and exported from the UK. The UK also has significant processing and aquaculture industries. This results in a diversity of views on priorities for the sector, as was noted in the White Paper:
A full range of views have been expressed across a very wide range of issues and there is no consensus. Different sectors within the fishing industry (catching, processing, and trading) have different priorities. Within each of those sectors, there is a range of views.436
The House of Lords EU Committee’s 2016 report, Brexit: Fisheries, set out some of the potential concerns and priorities for fisheries going into the Brexit negotiation. The report recognised that whilst the fishing industry represents “a very small part of the UK’s GDP”, it is of great importance to many coastal communities and that opportunities exist for the UK in leaving the CFP. It also noted that the majority of fish caught in the UK are exported to the EU and that the UK currently imports most of the fish it consumes.
The report highlighted concerns about the potential impact on the fisheries industry of a lack of agreement during the Brexit negotiations on access, quotas and trade. The conclusions on access and quota included the following:
- Unilateral restriction on access to fishing in the UK EEZ would almost certainly lead to reciprocal restrictions being placed on UK vessels fishing in the EU EEZ. This would also have a profound effect both on the fishing industry in the EU and on the UK fleet that relies on fishing outside the UK EEZ. Some form of mutual access arrangements must therefore be negotiated.
- The historic reluctance of Member States to renegotiate the relative stability key suggests that negotiating new quota allocations after Brexit will be difficult. Such difficulty will be accentuated if these negotiations overlap with the wider negotiations on EU withdrawal. The Government could use access to fishing within the UK EEZ as a lever for achieving a better allocation of quotas but must also bear in mind that co-operation will be crucial for the long-term sustainability of stocks.
- As an independent coastal state the UK will in principle be able to ‘walk away’ from negotiations with other coastal states if the compromises reached on TACs or quota shares are not aligned to UK interests. Walking away would, by leading to unilateral management of shared stocks, risk undermining the sustainability of fish stocks. It would also invite retaliation in other areas, including trade. Consequently, walking away should be a last resort.437
And on fisheries and trade:
- Trade in fish and seafood is essential to the wider seafood industry, which relies heavily on importing raw goods at reduced or zero tariffs for domestic consumption, and on exporting domestic catches and production. Any disruptions to the current trading patterns could have profound effects on both the catching and processing sectors.
436 Defra, Fisheries White Paper Sustainable fisheries for future generations, published July 2018
437 House of Lords Committee on the European Union, Brexit: Fisheries, December 2016
- Trade with the EU in fish products will be a key factor to the future success of the UK fishing industry and fish processors. We therefore urge that the fish sector should be included in the Government’s consideration of priorities for a future trading relationship with the EU.
11.2 Fisheries and no deal
A no-deal Brexit, in which there was no transitional agreement on fisheries, would mean the UK would become an independent coastal state from March 2019 taking over responsibility for its EEZ. The UK would no longer be bound by the Commons Fisheries Policy and could deny access to EU Member States’ vessels. Likewise, UK vessels which currently fish in other Member States’ waters could be denied access by the EU, although under international legislation (UNCLOS) there is an emphasis on the need to minimise economic dislocation to States whose nationals have habitually fished in a zone.
In the event of ‘no deal’, the Government will have to legislate to replace a number of EU regulations on fisheries under the EUW Act by March 2019. In addition, the Government is has introduced a Fisheries Bill, which has completed its Committee stage in the House of Commons. This will provide the UK Government with the powers to allocate fishing opportunities to UK vessels and national authorities to licence foreign fishing vessels.439 Further details can be found in the Commons Briefing Paper on the Fisheries Bill.
Quotas and access to fishing grounds
In the event of ‘no deal’, should the Government decide to introduce any immediate changes to access to fisheries, the impacts for the different parts of the fishing industry would depend what changes are made. As yet, there has been no indication from the Government if any changes would be made immediately, or whether the current quota allocations and access arrangements would be maintained in the first instance. The position may be clarified when the Government publishes the technical notice on fisheries. However, UK in a Changing Europe noted in its briefing Cost of a No Deal Revisited that, unlike in other areas, maintaining the current approach could be difficult for the Government:
The government’s mitigation strategy in key policy areas has been to manage disruption through unilaterally retaining the status quo. However, this approach seems unsustainable in the case of fish. Maintaining current levels of EU access to UK waters would be politically problematic in the event of no deal; the pressure on the government to reclaim control of UK waters would be substantial.440
After Brexit the UK Government will have to reach agreement on a common framework for fisheries with the devolved administrations. In the case of a no deal scenario UK in Changing Europe notes that this will have to be “resolved as a matter of urgency”.441 In the longer term, as set out in the White Paper, the Government plans to maintain the system for the existing
438 House of Lords EU Committee, Brexit: Fisheries, December 2016
439 EFRA Select Committee Evidence Session, 17 July 2018, Fisheries, Q385
440 UK in a Changing Europe, Cost of a No Deal Revisited, 3 September 2018
441 UK in a Changing Europe, Cost of a No Deal Revisited, 3 September 2018
quota while exploring new ways to allocate any additional fishing opportunities that arise as a result of leaving the CFP.
TACs are agreed on a yearly basis at the EU Agriculture and Fisheries Council meeting every December for the following calendar year, starting in January. The implications of the UK leaving the CFP part-way through the year on the 2019 TACs agreements are unclear, as is how agreements with non-EU countries on shared stocks would be managed by all parties for the remainder of 2019. However, the EU has now published its contingency proposals for continued mutual access in the event of ‘no deal’ (see section 11.4 below).
Tariffs and trade
In 2017, UK exports in fish and related products to the EU were worth £1.3 billion and comprised 70% of all UK fish exports from the UK by value. Fish imports from the EU were worth £1.1 billion (34% of all fish imports to the UK by value).442
The impact of a no-deal Brexit on the fisheries industry’s ability to export and trade are likely to be felt across the sector. With no agreement, as in other areas, trade in fisheries products would default to WTO tariffs. Generally, tariffs are higher on the most processed fish products. Defra set out, in evidence to the House of Lords Select Committee on Europe in 2016, examples of the level of tariffs that the EU currently applies to MFN under WTO rules:
The EU’s MFN tariffs on fisheries products range from 0% (e.g. on imports of fresh eels) to up to 25% (e.g. on fillets on processed mackerel). Generally, tariffs are higher on highly processed products compared to lightly or unprocessed products – for example, the EU’s MFN tariff on unprocessed salmon is 2%, while the tariff on prepared salmon is 5.5%. The EU’s MFN tariff for the UK’s five products lines with the largest exports to the EU are shown below, with their HS product code:
- Fresh, whole Atlantic Salmon, exports to the EU worth £168m in 2014 (HS 03021400): 2%
- Live, fresh or chilled scallops, exports worth £62m in 2014 (HS 03072100): 8%
- Frozen unsmoked Norway Lobsters (Nephrops), exports worth £56m in 2014 (HS 03061590): 12%
- Not frozen and unsmoked Norway Lobsters (Nephrops), exports worth £45m in 2014 (HS 03061590): 12%
- Frozen whole mackerel, exports worth £44m worth £44m in 2014 (HS 03035410): 20%.443
In its evidence, Defra also emphasised that the EU would also face tariffs on fish exports to the UK and that “such an arrangement is unlikely to be attractive to the EU”.444
442 UK Trade Info database, downloaded in April 2018, using product code SITC 03 – ‘Fish, crustaceans, molluscs & aq. inverts & preps thereof’
443 House of Lords Committee on the EU, Brexit: Fisheries, December 2016, Defra written evidence
In addition to tariffs, fisheries products, like all perishable products, could be impacted by any increased delays at borders resulting from greater custom controls. Box 5 below sets out concerns expressed by the UK shellfish sector on the impacts of a no-deal scenario.
EU Preparedness and contingency planning
The European Commission published a preparedness notice to stakeholders on Fisheries and Aquaculture in April 2018, setting out how UK withdrawal would impact both the UK and EU sectors in the absence of any kind of withdrawal agreement. It sets out that under Regulation (EU) 2017/2403 on the sustainable management of external fishing fleets, EU flagged vessels would need to obtain authorisation from both the UK and EU to fish in UK waters, and that UK vessels would have to obtain EU authorisation to fish in EU waters.
With regard to landings, as a third country the UK would only be able to land or transfer fish at designated EU ports, as set out in Regulation 1005/2008. The Regulation also requires third-country vessels arriving at EU ports to be inspected to ensure they comply with requirements on illegal, unreported and unregulated fishing (IUU). In addition, under the Regulations the UK would be required to send a flag notification to the EU to be able to export fish products to the EU:
In order to export fishery products caught by third country flagged fishing vessels to the EU, the Commission has to have received a notification from the flag State. As of the withdrawal date, this applies to the United Kingdom.446
UK exports to the EU, together with EU exports to the UK, would also require to be accompanied by a catch certification under the regulations from the relevant competent authority:
445 Fishing News, Brexit shellfish threat: No deal Brexit shellfish warning, 30 July 2018
446 EU Commission, Preparedness notice to stakeholders on Fisheries and Aquaculture, 9 April 2018
Box 5: Shellfish Sector
The shellfish sector does not fall under the CFP quota system, other than for Norway lobster and northern prawn in certain areas, and therefore fishing opportunities would be unlikely to change significantly as a result of the UK being outside the CFP.
However, a report commissioned by Shellfish Association, NFFO and SFF, published in July 2018 and reported by Fishing News, highlighted the impact of ‘no deal’ on an industry that relies on “smooth unimpeded trade”:
Businesses throughout the shellfish supply chain in the UK and in the EU are reliant on smooth, unimpeded trade. We are dependent on the European market, but likewise there is heavy dependence on our products on the continent. We have undertaken this study to identify the issues to ensure that, as far as possible, no part of our industry will be disadvantaged. The study makes clear that both in terms of the tariff regime but also non-tariff barriers, there is a great deal at stake.445
The article goes on to highlight the conclusion that “the possibility of replacing EU markets with alternative high-value markets is challenged not only by the difficulty of reproducing such traditions through marketing, but also by the global production and trade of most shellfish types”. The article refers to an estimated cost of EU tariffs to the sector of £41m per year, in the event of no deal.
The catch certificate to be validated by the United Kingdom must certify that the catches concerned have been made in accordance with applicable laws, regulations and international conservation and management measures. The catch certificate must have been validated by the United Kingdom competent authority.447
Certification of organic aquaculture products
As set out in the Commission’s notice, EU regulations require organic aquaculture products sold in its markets to be certified as such and that “a no-deal scenario would make UK issued certificates invalid”.
The Government warned in its preparedness note, Producing and processing organic food if there’s no Brexit deal, that businesses could experience delays of up to nine months after a no-deal Brexit because UK organic control bodies offering the necessary certification for export to the EU would need to seek approval by the EU. The Government has stated it is hoping to find ways to speed this process up.448
Funding for fishing communities
The EU provides funding for fishing communities through the European Marine and Fisheries Fund, which is part of the CFP and runs to 2020. The UK has an allocation of €243m for the period 2014-2020. The EMFF falls under the 2014-20 Multiannual Financial Framework allocation for structural and investment funds, and as the Government made clear in the notice on The government’s guarantee for EU-funded programmes if there’s no Brexit deal, it has guaranteed its funding until 2020.
11.3 UK Technical note on commercial fishing
The Government published a technical note on commercial fisheries on 15 October 2018. The note covered access to UK and EU waters, access to UK and EU ports, import and export of fisheries products, labelling and funding.
Access to waters
In the event of ‘no deal’ the note makes clear that “non-UK-registered vessels will no longer enjoy automatic access to UK waters”, or UK-registered vessels to EU waters. The note does not provide information as to whether there is any intention to grant any level of access in UK waters to EU registered vessels in the immediate aftermath of no deal.
The intention is for the quota system to remain unchanged, with the UK Fisheries Administrations449 allocating quotas as usual for 2019. However, with regard to quota exchanges that often take place between different Member States, there will be “no automatic access” to these.
Access to ports
UK vessels will no longer have any automatic right to land fish in EU ports, other than in EU designated ports. To do this, fishing vessels will have to
448 Defra, Producing and processing organic food if there’s no Brexit deal, 23 August 2018
449 These are: Marine Management Organisation in England; Marine Scotland in Scotland; Welsh Government in Wales and Department of Agriculture, Environment and Rural Affairs in Northern Ireland.
have all the required documentation and could be subject to inspections. This is also set out in the
EU preparedness note on fisheries. The same rules will apply to EU vessels landing fish in the UK.
Access to fisheries managed by Regional Fisheries Management Organisations (RFMOs)
According the Commission website the EU, represented by the Commission, plays an active role in a number of RFMOs.450 The technical note makes clear that if the UK leaves the EU it will have to apply for membership of the relevant conventions as an independent state. This process could take up to six months and during this time “UK vessels may not be able to fish international waters covered by RMFOs”. The RMFOs include the North-East Atlantic Fisheries Commission (NEAFC) which extends into the Atlantic beyond EU EEZs. For a map of the area covered by NEAFC see here. The NEAFC guidelines (from 2003) on becoming a contracting party are available on its website. It is not clear how or if these will be applied to the UK, which will be leaving and then rejoining as an independent member.
Other RMFOs that cover the North Atlantic include the Northwest Atlantic Fisheries Organization (NAFO) and the North Atlantic Salmon Conservation Organisation (NASCO). The Government says of both these organisations that it will “submit articles of ratification to the depositary at the point when the UK’s existing coverage under the agreement comes to an end”.451
Trade in fisheries products
Export of UK-caught fish and fisheries products to the EU will require a catch certificate with each product or consignment, setting out where, when and how much fish has been caught, and (if rules remain the same) include accurate weights of the fish actually exported, an accurate description of the fish, and an EU tariff product code of 6 digits. Product from multiple vessels will require a Multiple Vessel Schedule.
The note explains that UK Fisheries Authorities are in the process of developing an IT database to “facilitate the increase in export catch certificates” that will be required to be issued and verified.
Imports from the EU will also require catch certificates and will have to be submitted three days in advance to be checked by UK authorities. There is no reference in the document to how far in advance UK exporters will have to submit catch certificates to the Fisheries Authorities in EU Member States.
European Maritime Fisheries Fund
The note confirms all EMFF projects approved before 31 December 2020 will be fully funded.
450 11 non-tuna RFMOs and 6 tuna RMFOs
451 From lists deposited by the Government on 25 January 2019 of bilateral and multilateral international agreements it has already signed or would be signing.
11.4 EU contingency proposals to mitigate impact of ‘no deal’
The European Commission published its proposed contingency plan for ‘no deal’ and fisheries on 23 January 2019. It plans to regulate for extra funding through the EMFF to compensate for the cessation of fishing activities. It also proposes to regulate for continued access for UK vessels in EU waters based on 2019 quota allocations as long as the UK allows EU vessels into UK waters on similar terms.
The first proposal is to allow fishermen and operators from EU Members States to receive compensation under the European Maritime and Fisheries Fund for the temporary cessation of fishing activities. This will help off-set some of the impact of a sudden closure of UK waters to EU fishing vessels in a no-deal scenario.
The second proposal amends the Regulation on the Sustainable Management of the External Fleets. The aim of this proposal is to ensure that the EU is in a position to grant UK vessels access to EU waters until the end of 2019, on the condition that EU vessels are also granted reciprocal access to UK waters. The proposal also provides for a simplified procedure to authorise UK vessels to fish in EU waters and EU vessels to fish in UK waters – should the UK grant that access. This proposal is limited to 2019 and is based on the agreement in the Agriculture and Fisheries Council of 17 and 18 December 2018 on the fishing opportunities for 2019.
These contingency measures cannot mitigate the overall impact of a “no-deal” scenario, nor do they in any way replicate the full benefits of EU membership or the terms of any transition period, as provided for in the Withdrawal Agreement. They are limited to these specific areas where it is absolutely necessary to protect the vital interests of the EU and where preparedness measures on their own are not sufficient. As a rule, they will be temporary in nature, limited in scope and adopted unilaterally by the EU.
These proposals are subject to the co-decision procedure. The Commission will work with the European Parliament and the Council to ensure the adoption of the proposed legislative acts so that they are in force by 29 March 2019 (postponed to 31 January 2020, with a transitional period to effective withdrawal on 31 December 2020).452
11.5 Longer term impacts
The New Economics Foundation published a report on the impact of various Brexit scenarios on fisheries, Not in the same Boat, in November 2017. In a modelled no-deal scenario, where there was agreement with the EU on shared fish stocks which increased UK share of stock, WTO tariffs were applied on trade and EU vessels were excluded from UK waters, there was an overall increase in catch and profitability for the sector. However, this was not evenly distributed, with the benefit mainly accruing to UK flagged vessels, fishing offshore, that fish quota species that currently fall under the CFP:
452 EU Commission, Brexit preparedness: European Commission adopts two contingency proposals to help mitigate impact of “no-deal” Brexit on EU fisheries, 23 January 2019
This divide in quota ownership is one of the contributing factors to a sharp divide in current economic performance, with the large-scale fleet recording profit margins of 19% and the small-scale fleet operating at a profit margin of 0%. As the gains from quota increases accrue to those who hold the quota rights, these gains further entrench the ‘haves and have nots’ of UK fisheries. Small-scale vessels also see little benefit from exclusive access out to 200 nautical miles, as they fish exclusively in inshore waters.453
It should be noted that the study did not include in its no-deal model any new obstacles to trade with the EU, although it did highlight the potential negative impact of these for fisheries trade:
New obstacles to selling to the EU market – such as product standards and port inspections – are also a significant concern for the future economic performance of the UK fishing fleet. Fortunately, the UK is starting from a good position: current product standards are harmonised. However, to avoid border delays and inspections, there will need to be a continued close relationship between the EU and the UK on fisheries and the avoidance of an adversarial relationship that could ultimately force the EU to retaliate with a strong and obstructive hand.454
A study, Impact of hard Brexit on European fisheries, published by Wageningen University and Research in April 2018, modelled the impact for the EU as a whole of loss of mutual access to waters, together with the application of non-tariff measures (NTM) and the cost of measures required to facilitate trade. The study covered fisheries, aquaculture and fish processing. The authors concluded that a hard Brexit would lead to reduced fish prices in the UK and noted that the fish processing and aquaculture sectors could decline due to the impact of trade measures:
If the United Kingdom (UK) would completely close its marine areas, the UK, Ireland, the Netherlands and Belgium would be affected the most. For the UK aquaculture and fish processing production will decline due to trade measures. For the other three countries production of all fish producing sectors will decline. Also, because of a higher production volume of wild fisheries in the UK, the price of fish in this country will go down, resulting in lower production value and thus income of the sector. In the whole of Europe fish prices will rise. Especially Irish consumers will have to dig deep into their pockets: fish prices can increase up to 8%.455
Fishing for Leave criticised the study, particularly the conclusion that ‘no deal’ would lead to increased UK fish production of only 15%.456 It responded by highlighting the large potential increase in available catches to UK flagged vessels that could follow if other vessels were excluded from UK waters:
453 NEF, Not in the same Boat, November 2017, p4
454 NEF ibid, p73
455 Wageningen University and Research, European consumers pay the price for fish when hard brexit occurs, 24 April 2018
456 Wageningen University and Research Impact of hard Brexit on European fisheries, April 2018, p11
Currently the EU catches 675,000 tons in UK waters – 60% of the fish caught in the UK sector – whilst the UK only catches 88,000 tons or 16% of the fish taken in EU waters.457
The Wageningen report does refer to an increase in fisheries access having the potential to increase fisheries landings in the UK by up to 60%.458 However, it concluded that realising this would require no trade measures being put in place by the EU, which would be unlikely:
Gains of $400m could be expected if UK gains back its fishing territories and there are no trade protectionism measures. However, under NTMs and MFN [most favoured nation] tariffs, which is the more likely scenario, most of these gains are faded away and there is a zero sum.459
457 Fishing for Leave, Flawed Fisheries Report Brings Serious Questions Over Economists Analyses, 27 April 2019
458 Wageningen University and Research Impact of hard Brexit on European fisheries, April 2018, p5
459 Ibid, p11
Important Notice- See the Disclaimer and our Term of Use above Brexit Legal, McMahon Legal and Paul McMahon have no liability arising from reliance on anything contained in this article nor on this website
Contact McMahon Legal