Sandeel: Environment lawyers step in after EU starts legal fight with UK for protecting nature

10 December 2024

What?

The EU is fighting conservation measures put in place by the UK and Scottish Governments in March to protect coastal and marine ecosystems. ClientEarth has submitted legal arguments to the tribunal hearing the EU’s arbitration case against the UK.

In March, the UK and Scottish Governments ramped up existing protections and banned sandeel fishing in English waters of the North Sea and all Scottish waters. The action stemmed from concerns about the ongoing impact of catching, on some years, hundreds of thousands of tonnes of sandeel (around 11 billion individual fish) on seabirds and the wider ecosystem.

This has not landed well with the EU.

The EU has taken legal action against the UK, using the dispute settlement mechanism of the EU-UK Trade and Cooperation Agreement (TCA) for the first time.

ClientEarth is intervening in support of the sandeel closures as a ‘friend of the court’ through an ‘amicus curiae’ submission – an expert legal brief.

What is ClientEarth arguing?

The conservation measures are not discriminatory: The EU is claiming that the measures are discriminatory. However, the measures apply to all vessels from every country. Moreover, accepting this argument would mean that you could claim any conservation measure that didn’t affect parties exactly 50-50 could be challenged, which would lead to absurd results. This is entirely against the spirit of the TCA.

The EU’s arguments rely on inadequate scientific advice: A requirement of measures like these is that they need to be based on the ‘best available’ scientific advice. Scientific body ICES is the currently the main provider of scientific advice regarding catch limits. But it has itself recognised that the current single-stock advice, which sandeel fishing limits are based on, is not designed to safeguard ecosystem health (including ensuring sufficient food supply for dependent predators like other fish, seabirds and cetaceans is left in the sea), and that it’s insufficient to ensure wider ecosystem resilience. ICES highlighted the need for national management measures, on this basis – that is exactly what the sandeel closures are.

The measures are proportionate: We rely on functioning ecosystems to support fisheries and access to seafood in the long term, and to help keep climate change in check. Seabirds are in significant decline and sandeel are a key food source for them, as well as for major populations of marine mammals and other wildlife.

The substantial evidence compiled by the UK’s statutory nature bodies indicates that the sandeel closures could lead to a significant boost in seabird numbers and ecosystem health.

Is the EU’s action justified?

Sandeel are a key food source for commercially fished stocks like haddock and whiting, so conserving them benefits the fishing sector overall. But sandeel also provide food for seals, porpoises, whales and populations of breeding seabirds (currently in sharp decline) – all of which keep our marine ecosystem in balance and capable of providing food for consumption.

The income of fishers is obviously a factor to take into account. However, sustainable fishing is also about the sustainability of jobs. It is unwise to defend activity that will ultimately destroy jobs - exploiting nature beyond the point of recovery will ultimately decimate the ecosystems fishermen depend on to get paid.

It is also important to note that most sandeel caught are turned into fish oil or fishmeal – which feed other fish, in aquaculture, and sometimes industrial livestock on land.

The ocean is facing myriad pressures, including climate change – but instead of doing everything they can to boost its resilience and long-term health and rebuild struggling fish populations as quickly as possible, we see knee-jerk challenges like this when protection measures are finally taken. And both the EU and UK are still set fishing limits that work directly against this goal.

Bearing in mind these factors, and our key arguments above, it is ClientEarth’s view that the EU is not justified in taking this action against nature protections.

Further legal action

The EU committed to end overfishing by 2020 and yet a significant proportion of its fishing limits have been set above scientific advice every year since.

ClientEarth is challenging the 2022 EU-UK and EU-only fishing limits in court. A ruling is expected next year.

ClientEarth and other organisations are also taking action against national governments’ consistent authorization of destructive bottom-trawling in Marine Protected Areas (MPAs) in countries across the EU. Action is currently live in France, Spain and Germany – as part of the Seas at Risk MPA coalition, and Mediterranean Sea Alliance (MSA).