EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING REQUEST FOR THE ESTABLISHMENT OF A PANEL BY DENMARK IN RESPECT OF THE FAROE ISLANDS
Document: REQUEST FOR THE ESTABLISHMENT OF A PANEL
Date: 10 January 2014
Document codes: WT/DS469/2
Complainant: Denmark
Respondent: EU
Third parties: Australia, China, Guatemala, Honduras, Iceland, India, Japan, New Zealand, Panama, Russia, Taiwan, Turkey, U.S., Argentina, Brazil, Mexico, Norway, Peru, Thailand
Dispute stage: Panel
Agreements cited: Art. I:1, V:2, XI:1  GATT 1994

EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING
REQUEST FOR THE ESTABLISHMENT OF A PANEL BY DENMARK
IN RESPECT OF THE FAROE ISLANDS
The following communication, dated 8 January 2014, from the delegation of Denmark in respect of
the Faroe Islands to the Chairperson of the Dispute Settlement Body, is circulated pursuant to
Article 6.2 of the DSU.

Faroe Islands") requested consultations with the European Union concerning the use by the
European Union of coercive economic measures in relation to Atlanto-Scandian herring ( Clupea
Harengus). These consultations were requested by the Faroe Islands 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"). The
Faroe Islands' request was circulated on 7 November 2013 in document ,

2. Consultations were held on 12 December 2013 with a view to reaching a mutually
satisfactory solution. Unfortunately, the consultations failed to settle the dispute.

3. Accordingly, pursuant to Article 6 of the DSU and Article XXIII of the GATT 1994, the
Kingdom of Denmark in respect of the Faroe Islands now requests that the Dispute Settlement
Body ("DSB") establish a panel in order to examine this matter.

I. IDENTIFICATION
 OF THE MEASURES AT ISSUE

4. 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 Northeast Atlantic mackerel and
any vessels transporting fish or fish products stemming from Atlanto-Scandian herring or
Northeast Atlantic 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.

5. 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").
1

6. The Implementing Regulation asserts that the "Faeroe Islands shall be identified as a
country allowing non-sustainable fishing" of the Atlanto-Scandian herring stock, 2 in the sense of
Article 4(1)(a) of Regulation (EU) No. 1026/2012 of the European Parliament and of the Council of

1 Official Journal of the European Union, L 223, 21 August 2013, p. 1.
2 Implementing Regulation, Article 4.

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").3

7. 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.
4
8. The Implementing Regulation entered into force on the seventh day following its publication
in the Official Journal of the European Union,5 that is, 28 August 2013.

9. 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, China, the Faroe Islands, and Saint Kitts and Nevis.

10. 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.

II. LEGAL
 BASIS OF THE COMPLAINT

11. 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, through 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,

3 Official Journal of the European Union, L 316, 14 November 2012, p. 34.
4 Implementing Regulation, Article 5. The Annex referred to in paragraph 1 of Article 5 sets forth a
detailed list of fish and fishery products whose introduction into the territory of the Union is prohibited.
5 Implementing Regulation, Article 7.

– 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 transit 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,

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.

III. Request for the Establishment of a Panel

12. Accordingly, the Kingdom of Denmark in resp ect of the Faroe Islands requests that the DSB
establish a panel with the standard terms of reference as set out in Article 7.1 of the DSU.

13. The Kingdom of Denmark in respect of the Faroe Islands asks that this request be put on the
agenda for the DSB meeting scheduled to take place on 22 January 2014.