EU Referendum


Brexit: shellfish recap


10/02/2021




I think, after all this time and effort, we've got to the point in the great shellfish drama that we can attempt to summarise a complex and often confusing position. Pete certainly thinks we should have a recap.

To understand the issue fully, though, we must first sketch out the background to the general rules covering the export of live bivalve molluscs (LBM) from Great Britain to the EU. In principle, these are fairly straightforward.

Firstly, the country has to be listed by the EU as approved to export the goods in question. The list can be found in Commission Implementing Regulation (EU) 2019/626 but, as it happens, the UK isn't on it.

Never mind, though, we have Commission Implementing Decision 2019/1770. It amends Commission Decision 2006/766/EC to include the UK in its list of approved countries. Anything listed in this Decision should be automatically carried over into 2019/626.

Unfortunately, 2019/1770 only amended 2006/766 after it had already been repealed by 2019/626. Therefore, the UK does not appear in its listing, which would seem to explain why it has not been carried over.

On balance, though, this seem to be largely irrelevant as 2019/1770 does not apply if Union law applied to the UK on 1 November 2019 – which in fact it did. And, if 2019/1770 never applied, then it never actually amended 2006/766 so nothing could be carried over into 2019/626. That means that the UK actually cannot be listed.

Despite this, the Commission seems to think that we are listed – a delusion shared by the British government. Thus, although there appears to be no physical evidence of a listing, everyone who matters is behaving as if it existed. It thus appears that we are listed when we're not – a sort of Schrödinger's listing.

Are we clear so far?

The next hurdle is that each of the LBM production areas, from which exports are to be sent must be approved as conforming to EU hygiene standards and be awarded an "establishment number".

Establishments must then be listed by the competent authority of the exporting state. These are then recognised by the Commission as "approved to export to the EU". The vast majority produce from Class B waters.

These establishments must then produce their molluscs in accordance with Regulation (EC) No 852/2004 on the hygiene of foodstuffs and Regulation (EC) No 853/2004, laying down specific hygiene rules for food of animal origin.

Section VII of 853/2004 is especially relevant, as it sets out the specific requirements for the production of LBMs. This section requires that LBM are harvested only from areas classified as A, B or C (a task undertaken by the "competent authority"), and it permits food business operators (FBOs) to place those collected from class B areas on the market for human consumption "only after treatment in a purification centre or after relaying".

These rules apply equally to food business operators in EU member states and in third countries. There is no requirement – explicit or implicit – that the FBOs who place the LBM on the market should be the same as those who produce them or who carry out the purification process.

There are, as one might expect, additional requirements for third country producers. These are set out in 853/2004 and Regulation (EU) 2017/625 on official controls, the latter requiring that products should meet the relevant microbiological standards set out in Regulation (EC) No 852/2004 (as amended – in the case of Class B by Regulation (EC) 1021/2008). There is no requirement, explicit or implicit) that Class B LBM should be depurated (or relayed) before importing.

Given that all the criteria so far are satisfied – and UK producers have not cavilled at meeting them – then the next hurdle is the mandatory health certification for each consignment. And it is here that the system is coming unstuck. Producers can't use any old form. Formats must comply with the model certificates set out in EU regulations.

For Class A LBM, there is a form, set out in Regulation (EU) 2019/628, and for Class B farmed LBM, with or without depuration, there is a form set out in Part A of Annex IV to Commission Regulation (EC) 1251/2008.

Those exports that are naturally grown are known as "wild". When depurated, it seems they can be exported under cover of the certificate set out in 2019/628. Some consignments have been rejected, but this is put down to inexperienced vets, or documentation faults. But, for the unpurified product, there is no model certificate available.

This is where the problem lies. Without a model certificate, the provisions of Regulations 853/2004 and 2017/625 cannot be satisfied, and the products cannot be exported. Although there is no actual ban, the absence of a certificate has the same effect as a ban. That is a nuance which the media seems to be incapable of understanding.

According to Defra Secretary George Eustice – it had been agreed by the European Commission that a form would be made available for Class B unpurified LBMs, for use on and after 21 April of this year. Then, new regulations come into force, specifically Commission Implementing Regulation 2020/2235.

However, Eustice tells us that, "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, are not permitted. Exports from class A waters, such as we find around parts of Scotland, may continue".

That – as my piece yesterday pointed out - is the state of play, with Eustice having written to Commissioner Stella Kyriakides in charge of health and food safety in Brussels, "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".

To date, Commission official Stefaan De Rynk has not been able to identify any EU instrument which prohibits third country transfer of Class B product EU depuration centres in EU territory, relying on Regulations 2019/628 and 2073/2005, neither of which promulgate and explicit (or any) ban.

There are, nevertheless, the Twitterpundits who, on the basis of perilously limited knowledge, feel qualified to pontificate, endorsed by someone who feels compelled to share that ignorance.

As to Politics Home, its journalist Adam Payne – who first reported on this issue – seems to have jumped the shark, with "exclusive" revelations that Defra has changed its position. This is despite denials from Defra and a re-statement of the government's position in the Lords yesterday, when members were reminded that UK shellfish catches were valued at £393 million in 2019, making this current problem a very serious matter for the fishing industry.

Arguably, if the Commission persist in its stance, it could be in breach of its obligations under the WTO SPS Agreement, as well as falling foul of the TCA, which requires the Parties to ensure that SPS measures are not applied in a manner which would constitute [either] arbitrary or unjustifiable discrimination.

But that is where I will now leave it, until or unless we see some major developments.

Also published on Turbulent Times.