[Publication] Workshop on impacts of the EU-UK Trade and Cooperation Agreement on fisheries and aquaculture in the EU – Part I: Legal aspects

Chapter eight provides the conclusions and recommendations. It emphasises that the fisheries-related provisions of the TCA constitute a bilateral fisheries agreement unprecedented in international fisheries law. These provisions also differ from the equally complex regime of the EU’s Common Fisheries Policy (CFP), particularly in relation to the mechanisms for compensatory measures, remedial measures, and dispute resolution foreseen by the TCA. The extent to which the TCA integrates aspects of fisheries and trade is clear evidence of the success of the EU in achieving its goal of creating a strong bond between the fisheries arrangements and the provisions on trade in order to reduce the UK’s legal and political leeway in withdrawing from (parts of) the arrangements on fishing opportunities and access to waters.

Chapter eight concludes that the provisions on access to waters during the adjustment period until 30 June 2026 constitute the core of the fisheries-related provisions of the TCA. It stresses the uniqueness of the mechanism for remedial measures. This mechanism is again accompanied by a binding dispute resolution procedure that involves a review of the legality of compensatory measures by an arbitration tribunal. Chapter eight highlights that the implementation and future development of the detailed fisheries regime of the TCA is primarily governed via the Partnership Council and the Specialised Committee on Fisheries. The role of the European Parliament is limited to an oversight and advisory function in relation to the implementation and adoption of recommendations addressed to the Partnership Council through the joint Parliamentary Partnership Assembly.

Chapter eight furthermore emphasizes the ambitious nature of the objectives and principles concerning the conservation and sustainable use of fisheries. A priority of the EU should be to ensure that the TCA’s fisheries provisions and their future development are implemented in line with these objectives and principles. The Parties should strive to reach agreement on sustainable TACs and other management measures during the annual consultations. In the absence of agreement on TACs, the TCA provides for an innovative mechanism for science-based and precautionary provisional TACs. This is a considerable achievement that could provide a blueprint beyond the EU-UK fisheries relationship, including within the framework of RFMOs.

Concerning access to waters, it is likely that the UK will seek to reduce EU access to its waters as part of the annual negotiations after 2026, which may lead to future disputes going far beyond the current disputes experienced in relation to the UK’s territorial sea and that of the Bailiwick of Jersey. Chapter eight of the study strongly encourages the parties of the TCA to act in good faith, manage expectations, and adopt moderate positions to avoid disputes over access that could result in severe repercussions for fisheries, trade, and the EU-UK partnership generally. The trade-related instruments of the TCA should arguably be considered a matter of last resort if Part Two, Heading Five of the TCA is meant to provide a lasting cooperative framework for fisheries. The more confrontative instruments for dispute resolution envisaged by the TCA should be handled with caution. To avoid the risk of countermeasures in response to unlawful remedial measures as well as an aggravation of the dispute more generally, invocation of the general dispute resolution mechanism under Part Six of the TCA, which follows a reverse procedure (remedial measures only after arbitration), may often be the preferred option of dispute settlement compared to immediate remedial measures. Even in the most serious disputes, there is little incentive for the Parties to opt out of the TCA’s fisheries regime entirely as the Parties cannot unilaterally escape these arrangements by terminating Heading Five (Fisheries) without also terminating Headings One (Trade), Two (Aviation) and Three (Road Transport).