Undermining Regulatory Autonomy: The first few plenary sessions of the negotiations for a UK/EU fisheries agreement for 2021 have provided a glimpse into the UK’s future relationship with the EU. The online talks are currently under way in the wake of the disastrous outcome to the Trade and Cooperation Agreement concluded on Christmas Eve. The terms of that agreement cede automatic access for EU vessels to fish in UK waters (including the 6-12nm zone) for the next 51/2 years. The UK, however, retains regulatory autonomy over the rules which apply to all vessels fishing within the UK exclusive economic zone. A major battle now looms as the EU seeks to undermine and dilute that autonomy, whilst simultaneously paying lip service to it.
TACs and TAC Conditions
The primary task in the annual negotiations is to set total allowable catches for shared stocks. It is clear however from the opening sessions, in which the EU have repeatedly emphasised convergence between between the two parties, that its strategic objective is to bind the UK back into the Common Fisheries Policy – both existing CFP rules and any future CFP rules that the EU may adopt. The main focus is on the conditions that can sometimes be attached to TAC decisions. In the past, these conditions have frequently been attached as footnotes to the EU TACs and Quota Regulation. That route stretched the Commission’s authority (and the Lisbon Treaty) to the limits of legality but is no longer open to it in relation to the UK. The EU is therefore manoeuvring to trap the UK into accepting strong linkages between TACs and an array of additional measures. As this first is the first set of annual fisheries negotiations in which the UK is acting as an independent party, both sides recognise that more is at stake than just the arrangements for 2021, important as they are.
Regulatory Autonomy and Divergence
The EU’s objective is in diametrical opposition to the UK’s stated intentions as it left the EU and the CFP. The new UK Fisheries Act 2020 provides the means for the UK to diverge from the Common Fisheries Policy. On fisheries, the purpose of leaving the EU and the CFP was to forge a new destiny and do things better than the discredited and cumbersome CFP. There is an obligation, within the TCA to keep the EU informed and to consult – but ultimately and legally this type of decision lies exclusively with the UK.
Leverage in the Negotiations
In negotiations of this type, both sides seek leverage. On the issues of substance this trial of strength is apparent:
Both parties have emphasised the importance of reaching a quick settlement, as these negotiations would normally be finalised before the end of the previous year. A calculation then ensues as to which side will be most damaged by a delay.
The fishing industry on both sides would benefit from early agreement on the exchange of unutilised quota. From the plenary sessions it is clear, nonetheless, that the EU calculates that delaying agreement on exchanges, perhaps till later in the year in an as yet undefined process using yet-to-be-established Specialised Committees, will give the bloc more leverage over the UK in other parts of the agreement. This is a dangerous game for both UK and EU fleets which risk being left short of the quota that they need for the rest of the year.
The EU landing obligation represents the biggest current threat to the sustainable management of our mixed demersal fisheries. The loss of face attached to revisiting this flawed piece of legislation, especially in the European Parliament means, suggests that it will not be revisited this side of the next CFP review. The UK, by contrast, has signalled that it will amend the UK’s version of landing obligation at the earliest opportunity, whilst retaining the principle of minimising unwanted catch. In the meantime, the landing obligation remains part of EU retained law. The UK, however, has scope to apply its own exemptions and conditions. This opens up another area of potential divergence which the EU would like to close down.
Although the main business of the annual negotiations relates to TAC setting, the Trade and Cooperation Agreement binds the parties to set tonnage limits on the take of non-quota stocks in each respective EEZ. The mechanics of how this will be managed will be the business of the specialised committees, but some elements are under currently discussion within the current negotiations, including how tonnage limits will be calculated and catches monitored.
Seabass is another area in which the EU seeks to bind the UK into its existing approach. The UK has signalled its intention to make a number of modest and scientifically justified adjustments to the rules – either as part of the annual agreement or independently in UK waters.
Celtic Sea and Irish Sea Technical Measures
The UK has proposed a set of selectivity measures for vessels operating in the Celtic and Irish seas. The issue between the parties is whether the EU will agree to them, or whether the UK will apply them autonomously in its own waters.
Failure to Agree
On the trajectory that the parties are currently on, a point will arrive when it becomes clear that – despite all efforts – an agreement for 2021 is not possible. In these circumstances autonomous quotas will be set by the parties for this year and there are rules in the TCA about how this should be done. The UK would set (non-discriminatory) conditions for all vessels fishing in UK waters and the EU would do likewise for all vessels operating in EU waters. Whilst in Western Waters, the extent UK and EU EEZs are broadly equal, in the North Sea, 80% of the waters are either in the UK or Norwegian zone.
Trilateral negotiations between the UK, EU and Norway are under way in parallel to the UK/EU talks, to set TACs on shared stocks in the North Sea. In addition, separate but parallel bilateral negotiations between the UK and Norway, and UK and the Faeroe Islands (and EU/Norway) are also under way. Setting TACs is the focus of the trilateral negotiations, whilst agreeing access arrangements and quota exchanges is the main business of the bilateral talks. As there can be important potential linkages between the different sets of negotiations, from the outside the different interlinked talks can look like multi-dimensional chess.
Breaking the Mould
The first annual negotiations between the UK and the EU in the wake of the Trade and Cooperation Agreement, were never going to be easy. The EU’s stress on cooperation, collaboration, convergence and the benefits of continuity masks its ambition to bind the UK as closely as possible to the status quo – the Common Fisheries Policy. Having already ceded the UK’s strongest card – access to fish in UK waters – in the TCA, the UK nevertheless has two important levers. The UK is no longer a member state supplicant and can negotiate as an independent party; and it has regulatory autonomy over the rules that it can apply to all vessels fishing in UK waters. Important as the decisions in these negotiations are for fishing businesses in 2021, there is a larger trial of strength under way – that will determine the future for the next 51/2 years, and possibly beyond. The outcome of these talks will provide an indication on whether the UK has broken free of the CFP (despite continuity on access and minimal change on quota shares) and intends to forge its own path ahead; or whether the UK remains as a satellite within the CFP orbit.
All this takes place against continuing impediments to the export of fish and shellfish into the EU. Higher costs and a dramatic increase in the quantity and complexity of customs documentation are part and parcel of the UK’s decision to leave the single market and customs union. The difficult conditions faced at the border since the turn of the year– and ensuing delays, fatal to a perishable commodity such as fresh fish and live shellfish, owe more to a complex of factors. These include:
- System and business readiness in different parts of the supply chain and at the Border Control Posts themselves
- Different interpretations of the rules at different EU entry points
- A conflict in interpretation that has led to an effective ban on the import of live bi-valve molluscs into the EU.
Work is ongoing – principally through the twice weekly meetings of the Exporters Stakeholders Group – to resolve the outstanding issues
And then there is Covid-19. The annual fisheries negotiations are taking place entirely remotely and this imposes important limitations and pressures in this strange and hopefully atypical year.