EUROPEAN UNION – MEASURES ON ATLANTO-SCANDIAN HERRING REQUEST FOR CONSULTATIONS BY DENMARK IN RESPECT OF THE FAROE ISLANDS
Document: REQUEST FOR CONSULTATIONS BY
Date: 7 November 2013
Document codes: WT/DS469/1; G/L/1058
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 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.

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 ("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 respect of the Faroe Islands reserves 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 sovereign rights by setting its catch limit at 5.16 per cent
of the TAC for Atlanto-Scandian herring, which 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 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.
WT/DS469/1 • G/L/1058

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, China, 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.