Brexit: for want of a form

04/02/2021

After Tuesday's marathon - spending more than eight hours of trawling through the EU legislation, and sundry guidelines, EU and British – I was pretty sure that, by the time I posted in the wee small hours of Wednesday, there wasn't a "ban" as such on UK shellfish destined for EU Member States.

It's pretty much a classic situation that when the media start shrieking about things such as EU bans, without offering chapter and verse, then they've either got it wrong or they're exaggerating.

One certainly wishes that the media might devote as much effort to their reports as they do their lurid headlines – such as offered by The Times (above – print version), with their online report telling us that, "British fishermen have been told that they face a permanent ban on selling oysters, mussels and scallops to the Continent because they no longer comply with European food safety rules".

That much decidedly isn't true and is something of a libel on shellfish producers but this paper and most others, in their enthusiasm for taking the easy "hit", have missed the main story. This is far more interesting and, in many senses, far more damning.

The clue (or one of them) to what was really happening actually comes in one of Defra's own guidelines, dated November 2020, on filling in "Health certificate[s] for exports of live bivalve molluscs, echinoderms, tunicates and marine gastropods intended for human consumption".

To recap the on the issue, the problem arising for the traders is that they are unable to export to the EU Class B shellfish, those that require purification, or "depuration" before they can be sold for human consumption. And here in the Defra guidance, we have a reference to a mention of "purification centres" in the health certificate, with the warning that it does NOT imply that shellfish from Class B listed areas can be exported to the EU.

But, if this certificate mentioned in the guidelines cannot be used for Class B shellfish, then it begs the question of whether there is in fact one specifically designed for that purpose – and therein lies the problem. There isn't one.

What one has to appreciate here is that health certificates are what are known as statutory forms. Layout and content is set by regulation and there can be no deviation from it.

In this case, it is determined by Commission Regulation (EC) No 1250/2008, updated by Commission Implementing Regulation (EU) 2019/628. And the only form set out is the one that makes no provision for the export of Class B/C produce. Without a relevant form, there can be no export. Simples... or so it seemed.

Through yesterday, however, a different narrative emerged, with iNews running an incoherent report headed: "Defra urges UK shellfish exporters banned by EU to 'give it a go' at border as legality of ruling challenged".

This had environment secretary George Eustice questioning the legality of the decision to "ban" exporting to the EU. "We think this is a misinterpretation of their [the EU's] own laws and is unjustified", he said. "We're trying to get this particular issue unblocked".

Eustice claimed that Brussels had "changed their position" more than once and late last week had said they "weren't sure" they were going to allow unpurified molluscs across the border "until new hygiene documentation and certificates are drawn up" – rather confirming this blog's view that this is a certification problem arising from the lack of an official form.

Nevertheless, Eustice's short-term advice to the shellfish industry was to try to ship goods anyway, a stratagem that was dismissed by Rob Benson, from the shellfish company Kingfisher, based in the North East. He said: "We don't want to play Russian roulette. We stand to lose a lot of money. We need some true facts and clarity from the Government".

And indeed, clarity was just what was needed. Eustice had not conveyed any real understanding that the problem was not a "ban" as such, but the failure (deliberate or otherwise) to produce a prescribed form.

The story then took a new turn as Adam Payne, a journalist for Politics Home published the text of a new email to the UK shellfish industry, purporting to set out the legal base for the so-called "EU ban".

According to this e-mail, the Commission asserted that import into the EU of live bivalve molluscs was allowed only of they originated from classified areas, were sent to the EU via a dispatch centre, met all the requirements established in EU law and, crucially were "accompanied by the public health certificate set out in … Regulation (EU) 2019/628".

By my reading, however, there is nothing in EU law which prevents UK producers exporting Class B/C molluscs to Europe for treatment prior to sale for human consumption, provided that they meet the hygiene requirements and the microbiological criteria set down at the various stages of production.

The bar comes in the declaration in the health certificate, which has to be signed by the certifying officer. Insofar as it is the only form available, it actually imposes requirements which are not reflected in law, implementing a de facto ban on Class B/C products, one which the Commission intends to keep in place, with amendments to the current law, due to take effect on 21 April, turning it into a de jure ban.

However, although the Commission asserts that the animal and public health rules "have been elaborated during the last 30 years", implying that Class B/C produce from third countries has always been excluded, this has not been the case.

In the suite of legislation comprising Council Directives 91/492/EEC and 91/493/EEC, plus Commission Decision 93/185/EEC (which lays down the model health certificate), it is very clear that export of the categories which later became known as Class B/C can be exported.

The crucial concern of the Commission at the time was that "live bivalve molluscs produced in a third country and intended to be placed on the market in the Community must not qualify for more favourable conditions than those applied in the Community".

What the Commission is seeking to do now, by administrative means – effectively imposing more stringent requirements on UK producers than apply to EU-based operations – would probably not be WTO compliant, nudging up against the WTO SPS Agreement.

Last night, I exchanged notes with fisheries industry consultant Robin Turner, who said that the industry had been working with EHOs and port health since last summer; to draw the necessary certification into line. But there had been "nothing helpful from DEFRA" or government to assist the port health or EHOs.

Currently, the industry is trialling its own form for use by UK certifying officers, and has successfully exported a small number of consignments for depuration, with the form having been accepted by French authorities.

However, the industry is on very thin ice with this idea, as the forms have no legal effect. Without a prescribed form, the exports have no legal base, and consignments could be rejected at any time, without notice.

It is absolutely necessary that the industry gets heavyweight support from DEFRA, to take this problem to Brussels to get a prescribed form promulgated in a Commission Implementing Regulation.

And that remains the bottom line. Despite the Commission's protestations about safeguarding public health, exports should be allowed to resume as soon as possible. All it takes is a new form. For want of that form, an industry will be lost.

Also published on Turbulent Times.