Richard North, 09/02/2021  

After my piece yesterday, I made a private promise to myself that I would not raise the issue of live bivalve molluscs again, at least for the next few days.

But that was to reckon without two important new developments in a saga that, as I have already observed is serving to define our new relationship with the EU, illustrating on the one hand, how impossibly complex EU law actually is and, on the other how difficult it is dealing with the European Commission now that we are no longer in the EU.

The first of yesterday's developments, which further illustrate both points, was a letter from George Eustice, secretary of state for the Environment, to Commissioner Stella Kyriakides in charge of health and food safety in Brussels.

In this letter, Eustice addressed the Commission "view" that the import into the EU from Great Britain of live, bivalve molluscs for depuration "from waters classified as 'Class B' was "not permitted". He then noted that the Commission Services had previously advised that, when these "animals" were to be exported to the EU for purification, they could be certified, thereby indicating that export was permitted.

The Export Health Certificate (EHC) to be used, according to the Commission itself, was set out in Part A of Annex IV to Commission Regulation (EC) No 1251/2008 of 12 December 2008. This (unstated by Eustice) implements Council Directive 2006/88/EC "as regards conditions and certification requirements for the placing on the market and the import into the Community of aquaculture animals and products thereof and laying down a list of vector species".

The parent Directive, dated 24 October 2006, covers "animal health requirements for aquaculture animals and products thereof, and on the prevention and control of certain diseases in aquatic animals".

On the face of it, therefore - and apparently contradicting my earlier assertion that there was no model EHC to cover import of molluscs for the purposes of depuration – there is in fact a suitable form – one actually recommended by the Commission.

This, however, is not as straightforward as might appear, and explains why I missed it. The problem is that this applies to "aquiculture animals" (shellfish for the purpose of EU law are included in the definition of "animals") and the legislation relates to animal health, rather than food safety – a different part of the acquis.

Certainly, although I was aware that animal health law was being cited somewhere in the background, I regarded that as a distraction, especially as the official Defra advice only refers to 1251/2008 tangentially, stating only that it "may be relevant".

I had not though, incidentally, to refer to the Scottish advice to potential shellfish exporters, (wrongly) assuming there would be no difference. However, this advice states:
Live bivalve molluscs (LBMs) from class B waters must be depurated before human consumption. LBMs that are to be depurated in the EU must be accompanied an aquatic animal health certificate issued by the Fish Health Inspectorate. This certificate only applies to consignments from aquaculture farms.

There is currently no health certificate available for the export of wild caught LBMs for depuration in the EU. Wild caught LBMs from class B waters must be depurated prior to export to the EU. Once depurated they must travel with a joint public and animal health export health certificate issued by your local Environmental Health Officer.
And there we have the problem highlighted: "aquaculture animals" for depuration can be exported under cover of a certificate issued with respect to animal health law but, as the Scottish advice confirms: "There is currently no health certificate available for the export of wild caught LBMs for depuration in the EU". That is the problem in a nutshell.

This then brings us to the second event of yesterday – a statement to parliament by Eustice " on the EU ban on UK shellfish exports" in response to an urgent question from Labour's Stephanie Peacock, representing landlocked Barnsley East.

Notwithstanding that there is no "ban" as such, Eustice explained that the Commission had advised Defra in writing in September 2019 that the trade in LBM "that have not been through purification or have not cleared testing" could continue but, for one small part of the industry - wild harvested molluscs from class B waters - there would need to be a pause while we awaited new export health certificates to become available in April. Otherwise, in line with the guidance from the EU, trade in the molluscs from farms could continue uninterrupted.

Said Eustice, "We continue to believe that our interpretation of the law and the EU’s original interpretation is correct, that the trade should be able to continue for all relevant molluscs from April, and that there is no reason for a gap at all for molluscs from aquaculture".

However, he went on, "last week the Commission gave us sight of instructions that it sent to all member states on 3 February, stating that any imports into the EU from the UK of live bivalve molluscs for purification from class B waters, such as the sea around Wales and the south-west of England, are not permitted. Exports from class A waters, such as we find around parts of Scotland, may continue".

That, as it stands, is the state of play, with Eustice having written to Kyriakides "seeking urgent resolution to this problem". He tells her that "We can see no scientific or technical justification" for the change in stance by the EU, adding that the news "was conveyed to us rather casually and after the event". This, he tells Kyriakides, "is not in the collaborative and cooperative spirit in which we wish to work together going forward".

Entirely separately, the Commission has produced a draft regulation which will cover entry into the Union of LBM intended to be sent purification centres, together with another regulation setting out a specific model of the registration document that must accompany movements of live bivalve molluscs.

Both of these regulations were due to come into force on 21 April 2012, which explains why Defra has been suggesting that export of wild LBM from Class B waters could resume on that date.

Noted on this copy is the legend: "This draft has not been adopted or endorsed by the European Commission. Any views expressed are the preliminary views of the Commission services and may not in any circumstances be regarded as stating an official position of the Commission".

Then there is a revision to the draft setting out the model certificates, without the Annex illustrating those essential certificates. That seems to leave the Commission's next move.

Interestingly, the media (at the time of writing) has been slow to respond, except for the Mail which has picked up on the debate which followed Eustice's statement in the Commons.

The piece has the heading, "We'll board your boats if you don't back down", stating that "George Eustice warns EU that Britain will get tough if Brussels doesn't back down in row over shellfish exports", a reference to the intervention by Sheryll Murray, Tory MP for South East Cornwall, who had declared:
… the time has now come to show the EU that we will not surrender to its games over these shellfish exports. I call on him to start the necessary and frequent boardings on EU vessels in our exclusive economic zone to ensure that they comply with UK laws. If we disrupt their fishing activity, so be it, but we must show the fishing industry support and also provide details of the promised financial support without which our industry will not survive.
Later noting that the Commission was in effect embarking on a change in the law, Eustice responded that: "in many, many areas we have taken a pragmatic, sensible, phased approach in the initial months, but there is no obligation on us to continue that".

Thus, what started as a dry, technical exploration of the interstices of EU law seems rapidly to be escalating. For want of a form, jaw-jaw could turn into war-war. With the government clearly indicating that bivalve lives matter, will this be the first "red tape" war in history?

Also published on Turbulent Times.

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