Richard North, 14/02/2021  

When I last did shellfish, on Wednesday, I said I would not return to the subject unless we saw some major developments. Well, what constitutes "major" is arguable, but we've certainly seen several developments, one of which is the intervention of the Telegraph (late to the feast).

The paper has just discovered Commission Regulation (EC) No 1251/2008, and has also has obtained correspondence between Whitehall officials and the European Commission.

This, the paper says, appears to show it previously advised that the export of live molluscs from Britain is still possible after Brexit, on which basis we're getting the headline: "Row over EU shellfish ban escalates as ministers say new documents show Brussels said trade could continue".

Although the Telegraph is conveying information about Reg 1251/2008, we actually learned of this from a letter dated 8 February, sent by George Eustice to EU Commissioner Stella Kyriakides.

The crux of this letter was a claim that the Commission had changed its position on whether UK exports of unpurified live bivalve molluscs (LBM) were permitted, having stated on 27 September 2019 that they could be certified with the model Export Health Certificate set out in Part A of Annex IV to the now famous Reg 1251/2008.

At the time when this first became public knowledge, I write this piece pointing out an apparent contradiction – the anomalous use of animal health law (which is what 1251/2008 is) do deal with a public health issue. Normally, these areas have their own separate laws.

Puzzled by this, I went back to the regulation – well before the Telegraph's intervention - and had another look at it. The key provision, or so it seemed, was Article 6(1). Under the heading: "Aquaculture animals and products thereof intended for further processing before human consumption", it stated:
Consignments of aquaculture animals and products thereof intended for further processing before human consumption, shall be accompanied by an animal health certificate completed in accordance with the model set out in Part B of Annex II and the explanatory notes in Annex V…
This is what the Telegraph relies on, citing a briefing note from Defra written following an exchange with the Commission. We are told that the Commission's reply endorsed the Department's view and agreed that the appropriate certificate was the one Defra officials had suggested. "This exchange therefore", the paper added, "corroborated for Defra that the trade could continue following the end of the transition period".

The Telegraph then continues with what we already knew to be the case, that Defra had told fishermen there would need to be a short pause after Brexit for the export of wild molluscs. Since 1251/2008 applied only to "aquaculture animals", and there was no corresponding certificate for the "wild" molluscs, producers would have to wait until April for a new model health certificate for them. But it was believed that, from 1 January, the export of farmed molluscs could continue as before.

However, it is now clear that Defra officials hadn't read the whole Regulation. In truth, no-one reads these things completely – life is too short. You tend to cherry-pick what you need and ignore the rest. But, in this case they most certainly should have read Article 6(2). With devastating impact, the relevant bits of this actually state:
Paragraph 1 shall not apply to:

(b) molluscs or crustaceans which are intended for human consumption and packed and labelled for that purpose in accordance with Regulation (EC) No 853/2004, and which are:

(i) non-viable, which means no longer able to survive as living animals if returned to the environment from which they were obtained; or
(ii) intended for further processing without temporary storage at the place of processing;
Since a condition of import for LBM for human consumption is a requirement that they conform with the provisions of 853/2004, where UK exporters are sending molluscs to the EU for depuration prior to human consumption, para 2 effectively disapplies para 1. The animal health certificate completed in accordance with the model set out in Part B of Annex II cannot be used.

This is effectively confirmed by the Telegraph, which tells us that the EU is now arguing that the 1251/2008 certificate provides only "animal health guarantees" and "cannot be used to provide public health assurances". Furthermore, an EU official says: "The rules in this area have not changed. They have applied, and continue to do so, to all third countries".

Indeed, that is the case. Regulation (EC) No 1251/2008 is animal health legislation and, as the Commission so rightly says, it cannot be used to provide public health assurances. It applies to farmed shellfish imported to stock layings within the Union. And, while there is a certain ambiguity in the phrasing, there can be no equivocation about Article 6(2).

We are, therefore, back where we started, needing a model health certificate to enable unpurified molluscs to be sent to EU Member States. But, while that has been unlikely, ever since Defra was so peremptorily informed by the Commission, it now seems to have been completely ruled out.

That comes from the Financial Times which is telling us that the Commission is adamant it will not deliver. "There will be no new export health certificates at the end of April for any third country, including the UK. British exports have to fulfil the rules applied to a third country", says an official.

Interestingly – for the time being, at least – Defra seems to have given up. In a "silent edit" to its export guidance website, dated 12 February, it now confines 1251/2008 export certification to "live fish, molluscs and crustaceans for farming, ornamental, or any other purpose except direct human consumption" (my emphasis).

This exclusion is a material change to earlier guidance. Via Wayback Machine we can see that earlier versions of the same webpage lack this crucial caveat. Last September, for instance, the guidance applied to "live fish, molluscs and crustaceans imported or exported for aquaculture and ornamental purposes and includes live shellfish for purification (depuration) prior to consumption".

One very small consolation for the shellfish producers, though, is that we've solved the puzzle of the Schrödinger’s listing. Although EUR-Lex tells us that Commission Implementing Regulation (CIR) (EU 2019/1770 is in force, apparently it never did apply. Instead, the UK is actually listed by virtue of CIR (EU) 2020/2209 of 22 December 2020, amending Implementing Regulation (EU) 2019/626.

Sadly, that seems to be of very little help. In the words of a Defra official – conveyed by an insider – the shellfish industry is "screwed". Although depurated product from Class B waters is still exportable (we think – a trial export load is being arranged), an estimated 80 percent of LBM production is on hold. Many producers simply will not survive.

Now, the Mail on Sunday is citing an anonymous "senior minister" is branding what it is calling the "shellfish war" and act of "petty revenge" for Britain's vaccine victory. With the EU also out for value for money, it would appear, it is also "'punishment for daring to become a nation state" over Brexit.

Where we go from here is anyone's guess. The busy Mail on Sunday, in another piece on the "human cost of [the] EU's spite", says that a "trade war" looms.

Such is the high profile of this issue, which is still attracting headlines, that it is difficult to imagine the Johnson administration not responding. If the Commission is looking for a fight, it may well get one.

Also published on Turbulent Times.

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