WT/DS469/1
G/L/1058
7 November 2013
(13-6173)  Page: 1/4
  Original: English
 
 EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING 
REQUEST FOR CONSULTATIONS BY DENMARK 
IN RESPECT OF THE FAROE ISLANDS 
The following communication, dated 4 November 2013, from the delegation of Denmark in 
respect of the Faroe Islands to the delegation of the European Union and to the Chairperson of the 
Dispute Settlement Body, is circulated in accordance with Article 4.4 of the DSU. 
 
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1. On behalf of the Kingdom of Denmark in respect of the Faroe Islands ("Faroe Islands"), the 
authorities of the Faroe Islands have instructed me to request consultations with the European Union pursuant to Article 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Disputes  ("DSU") and Article XXIII:1 of the General Agreement on Tariffs and 
Trade 1994  ("GATT 1994") with regard to the use of coercive economic measures in relation to 
Atlanto-Scandian herring ( Clupea Harengus ). 
 
I. BACKGROUND  2. The Faroe Islands is a self-governing territory of the Kingdom of Denmark that falls within 
the territorial scope of the latter's acceptance of the Marrakesh Agreement Establishing the World 
Trade Organization  ("WTO"). 
 
3. The Faroe Islands does not fall within the territorial scope of the European Union. 
 4. This request for consultations ("Request") is made by the Kingdom of Denmark in respect of 
the Faroe Islands. 
 5. The Faroe Islands is vested with sovereign rights in a zone beyond and adjacent to its territorial sea. Consistent with established principles of international law as reflected in relevant 
provisions of the United Nations Convention on the Law of the Sea  ("UNCLOS"), within this zone, 
the Faroe Islands exercises sovereign rights for the purpose of exploiting, conserving and managing, inter alia , living marine resources. 
 
6. The Atlanto-Scandian herring is shared between the respective exclusive zones of five coastal States, namely the Faroe Islands, Iceland, Norway, the Russian Federation, and, to 
some extent, the European Union. Proper manage ment, therefore, requires, consistent with the 
relevant provisions of UNCLOS, joint management and mutual efforts on the part of the relevant coastal States in order to seek to agree upon the measures necessary to coordinate and ensure the conservation and development of this shared stock. 
 
7. The Faroe Islands has a strong record for managing the Atlanto-Scandian herring in accordance with the requirements of the UNCLOS, ensuring, through proper conservation and 
management measures, that the maintenance of the stock is not endangered by 
over-exploitation.
1 
 
                                               
1 With this Request, the Kingdom of Denmark in resp ect of the Faroe Islands re serves all of its rights 
under the UNCLOS. This Request is thus without prejudice to actions the Kingdom of Denmark in respect of the Faroe Islands has taken, or may take, under the UNCLOS. WT/DS469/1 • G/L/1058 
 
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  8. To that end, each year, the Faroe Islands and the other four coastal States undertake 
negotiations with a view to agreeing an allocation key for dividing the Total Allowable Catch ("TAC") recommended in advice from the In ternational Council for the Exploration of the 
Sea ("ICES"), based on a fish mortality rate set pursuant to a long-term management plan agreed 
between the five coastal States. 
 9. Unfortunately, the five coastal States were unable to agree on an allocation key for the 
TAC for Atlanto-Scandian herring for 2013. On 26 March 2013, based on available scientific 
evidence, the Faroe Islands set a catch limit of 105 230 tonnes for the stock. The catch limit is determined as 17 per cent of the TAC recommended by ICES. 
 
10. The Faroe Islands understands the position of the European Union to be that the Faroe 
Islands should restrict the exercise of its sovereig n rights by setting its catch limit at 5.16 per cent 
of the TAC for Atlanto-Scandian herring, whic h represents approximately 31 000 tonnes for 2013. 
 
II. IDENTIFICATION OF THE MEASURES AT ISSUE  
11. In response to the Faroe Islands' decision to set a catch limit of 105 230 tonnes for 
Atlanto-Scandian herring, the European Union has adopted coercive economic measures against the Faroe Islands. It has prohibited the introduction into the territory of the Union of certain products of Atlanto-Scandian herring and Northeast Atlantic mackerel ( Scomber scombrus ) caught 
under the control of the Faroe Islands; and it has prohibited from EU ports any vessels flying the 
flag of the Faroe Islands that fish for Atlanto-Scandian herring or mackerel and any vessels transporting fish or fish products stemming from Atlanto-Scandian herring or mackerel that have 
been caught either by vessels flying the flag of the Faroe Islands or by other vessels authorized by 
the Faroe Islands while flying the flag of a third country.  
12. On 21 August 2013, the European Union published, in the Official Journal of the European 
Union, Commission Implementing Regulation (E U) No. 793/2013 of 20 August 2013 establishing 
measures in respect of the Faeroe Islands to ensure the conservation of the Atlanto-Scandian herring stock (the "Implementing Regulation").
2 
 
13. The Implementing Regulation asserts that the "Faeroe Islands shall be identified as a country allowing non-sustainable fishing" of the Atlanto-Scandian herring stock
3, in the sense of 
Article 4(1)(i) of Regulation (EU) No. 1026/2012 of the European Parliament and of the Council of 
25 October 2012 on certain measures for the purpose of conservation of fish stocks in relation to countries allowing non-sustainable fishing (the "Basic Regulation").
4 
 
14. Pursuant to powers accorded to the Commission under the Basic Regulation, paragraphs 1 and 2 of Article 5 of the Implementing Regulation further specify that:  
1. It shall be prohibited to introduce into  the territory of the Union, including for 
transhipment purposes at ports, fish or fishery products set out in Annex which consist of, are made of, or contain Atlanto-Scandian herring or mackerel caught under 
the control of the Faeroe Islands. 
2. The use of Union ports by vessels flying the flag of the Faeroe Islands that fish 
for Atlanto-Scandian herring or mackerel and by vessels transporting the fish or the 
fishery products stemming from Atlanto-Scan dian herring or mackerel that have been 
caught either by vessels flying the flag of that country or by vessels authorised by it while flying another flag shall be prohibited. This prohibition shall not apply in cases of force majeure  or distress within the meaning of Article 18 of the 1982 United Nations 
Convention on the Law of the Sea for services strictly necessary to remedy those 
situations.
5 
 
                                               
2 Official Journal of the European Union, L 223, 21 August 2013, p. 1. 
3 Implementing Regulation, Article 4. 
4 Official Journal of the European Union, L 316, 14 November 2012, p. 34. 
5 Implementing Regulation, Article 5. The Annex refe rred to in paragraph 1 of Article 5 sets forth a 
detailed list of fish and fishery pr oducts whose introduction into the te rritory of the Union is prohibited. WT/DS469/1 • G/L/1058 
 
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  15. The Implementing Regulation entered into force on the seventh day  following its publication 
in the Official Journal of the European Union6, that is, 28 August 2013. 
 16. The Faroe Islands understands that the Eu ropean Union has adopted, pursuant to the 
Implementing Regulation, an indicative list of vessels that are prohibited from using EU ports, 
including vessels flying the flags of Belize, Chin a, the Faroe Islands, and Saint Kitts and Nevis. 
 
17. The measures at issue include the Basic Regula tion, the Implementing Regulation, as well as 
any related measures adopted by the European Un ion or its Member States, including measures 
that guide, amend, support, supplement, replace, and/or implement the provisions set forth in the 
Basic Regulation or Implementing Regulation. 
 
III. LEGAL BASIS OF THE COMPLAINT  
18. The Faroe Islands is concerned that the measures of the European Union described above 
are inconsistent with obligations of the European Union under the covered agreements. In particular, it appears that the measures contravene: 
 
(a) Article I:1 of the GATT 1994, because, through the prohibitions on: 
 
- introduction of specified Atlanto-Scandian herring and Northeast Atlantic 
mackerel products into the territory of the European Union, set forth in 
Article 5(1) of the Implementing Regulation; and, 
 
- use of Union ports by certain vessels flying the flag of the Faroe Islands and 
certain third-country vessels transporting specified fish or fishery products, set forth in Article 5(2) of the Implementing Regulation, 
 
the European Union fails to accord immediately and unconditionally to like products originating in the Faroe Islands relevant advantages, favours, privileges or immunities that are granted by the European Union to Atlanto-Scandian herring and Northeast 
Atlantic mackerel products originating in other countries; 
 
(b) Article V:2 of the GATT 1994, because, thro ugh the prohibition on introduction to the 
territory of the European Union of specified Atlanto-Scandian herring and Northeast 
Atlantic mackerel products: 
 
- set forth under Article 5(1) of the Implementing Regulation; and, 
 
- arising through denial of access to EU ports for certain vessels flying the flag of 
the Faroe Islands and certain third-country vessels transporting specified fish or 
fisheries products, set forth in Article 5(2) of the Implementing Regulation, 
 
the European Union denies freedom of tran sit through the territory of the European 
Union, and each of its Member States, via the routes most convenient for international 
transit, for traffic in transit to or from the territory of other WTO Members, and makes distinctions based on the flag of vessels, the place of origin, departure, entry, exit or 
destination or on circumstances relating to the ownership of goods, of vessels or of 
other means of transport; and, 
 
(c) Article XI:1 of the GATT 1994, because, through the prohibitions on: 
 
- introduction of specified Atlanto-Scandian herring and Northeast Atlantic 
mackerel products into the territory of the European Union, set forth in 
Article 5(1) of the Implementing Regulation; and, 
 
- use of Union ports by certain vessels flying the flag of the Faroe Islands and 
certain third-country vessels transporting specified fish or fishery products, set 
forth in Article 5(2) of the Implementing Regulation, 
 
                                               
6 Implementing Regulation, Article 7. WT/DS469/1 • G/L/1058 
 
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  the European Union institutes or maintains prohibitions or restrictions, other than 
duties, taxes or other charges, on the importation of certain products of the territory of the Faroe Islands. 
 
***** 
 19. I look forward to receiving your reply, in accordance with Article 4.3 of the DSU, within 
10 days from the date of receipt of this Request. 
  
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