The UK-France fishing dispute under the TCA (4 November 2021)

Diplomatic tensions have been growing in recent weeks between the United Kingdom and France over the implementation of the rules on fisheries established in the Trade and Cooperation Agreement (TCA or the Agreement) between the UK and the European Union.  France and the UK disagree on the application of the licencing regime under the Agreement, and in particular on the number of licences granted by the UK to French vessels to fish in the UK’s territorial sea.  This Insight briefly sets out the regime applicable to fisheries under the TCA and the background to the dispute between the UK and France, including by reference to the dispute resolution mechanism under the TCA.

The fisheries regime under the TCA

Heading Five of Part Two of the TCA deals with fisheries.  As part of the Agreement, and during a transition period until 30 June 2026, the UK and the EU have agreed to grant vessels of the other party full access to waters in their respective Excusive Economic Zones (12-200 nautical miles); in a specific part of their respective territorial seas, between six and twelve nautical miles (Annex Fish.4, Article 2); and, on the British side, in the territorial sea adjacent to the Crown dependencies of the UK (Article Fish.10).  In order to fish in each other’s waters, UK and EU vessels require a licence.  The legislation on licencing EU vessels in UK waters is set out in the Fisheries Act 2020 Sections 12 and 13.

The fishing dispute between the UK and France

Since January 2021, when the TCA was first provisionally applied, tensions between the UK and France have been growing over the implementation of the licensing regime under the Agreement.  France has recently complained that the UK has wrongly rejected a number of applications presented by French vessels to fish in the UK’s territorial sea.  France claims in particular that the UK has failed to honour its commitment to allow French vessels to continue fishing in UK waters after Brexit, while the UK argues that it is entitled to request evidence of previous fishing activities before granting licences to relevant French vessels.

On 27 October 2021, the French Minister of State for European Affairs, Clément Beaune, and the Minister of the Sea, Annick Girardin, issued a joint statement, in which they threatened to adopt a series of retaliatory measures against the UK.  These measures included, among others: (i) imposing a ban on the landing of British fishing vessels in designated ports; (ii) strengthening of sanitary and customs controls; (iii) carrying out systematic safety checks of British ships; and (iv) reinforcing controls on lorries to and from the UK.  On 28 October 2021, France also seized a British vessel at the port of Le Havre and issued a verbal warning to a second boat (see here).

In a recent letter to the European Commission, the French Prime Minister, Jean Castex, stated that, if the UK and France fail to reach a satisfactory solution, the EU, as party to the TCA, should consider triggering the formal dispute resolution mechanism provided therein.  The EU has not yet adopted an official position on the fishing dispute between the UK and France.

In response to France’s position, the UK Secretary of State for Environment, Food and Rural Affairs, George Eustice, stated that “[t]he measures being threatened do not appear to be compatible with the trade and cooperation agreement (TCA) and wider international law, and, if carried through, will be met with an appropriate and calibrated response” (see here).  Another UK government spokesperson said that the government is “considering the possibility […] of launching dispute settlement proceedings under the TCA, and of other practical responses, including implementing rigorous enforcement processes and checks on EU fishing activity in U.K. territorial waters, within the terms of the TCA”.

During a recent meeting with the French President, on 31 October 2021, the UK Prime Minister, Boris Johnson, “expressed his hope that the French Government would de-escalate this rhetoric and withdraw their threats” (see here).  Following the meeting, France agreed not to go ahead with its intended retaliatory measures.  Talks intended to “resolve the range of difficulties” between the two States are expected to take place on Thursday, 4 November 2021 (see here).

Should the talks between the UK and France fail, it remains to be seen whether either party to the TCA will attempt to trigger the formal dispute settlement mechanism under the TCA.  Under Article Fish.14(5) of the TCA, if the parties fail to reach a “mutually agreeable solution”, the complaining party may request the establishment of an arbitration tribunal.

The text of Heading Five of Part Two of the TCA is available here.

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