Richard North, 03/03/2021  

I wasn't going to write about shellfish today. I really wasn't, not least because I'm incurably bored by the whole subject – or the treatment of it.

But, in a sense, I'm not dealing with this issue. There is something much more serious going on - a European Commissioner who doesn't seem to understand EU law, apparently advised by a team who shares her ignorance.

The miscreant is Stella Kyriakides, a Cypriot national and now Commissioner for Health and Food Safety, a post she has held since 1 December 2019. Like most European Commissioners (not) she is eminently qualified for her task, having read for a degree in psychology at the University of Reading and a master's degree in child maladjustment at Manchester.

Her task in this case has been responding to a letter sent by George Eustice on 8 February complaining about the Commission treatment of "Trade in live bivalve molluscs from GB to EU for purification in the EU".

Kyriakides answered Eustice with a letter on 10 February but it has only recently become publicly available after its release to the Westminster parliament – and a sorry thing it is.

In that letter, she acknowledges that the trade of live bivalve molluscs from production areas classified as "Class B" between the United Kingdom (UK) and EU Member States has taken place for many years during the UK's EU membership as well as during the transition period.

She also acknowledges that the transfer of live bivalve molluscs for human consumption from a B classified production area to a depuration centre is allowed between EU Member States. But it is then that she goes wobbling violently off the rails.

Since the end of the transition period, and as provided for in the Withdrawal Agreement, she writes, the UK is no longer bound by EU law, including in particular the entire SPS legislation, and is no longer treated as a Member State.

Hence, she says, the import of live bivalve molluscs from Great Britain and from the UK Crown Dependencies into the EU is subject to the conditions applied to any other third country. "As you know", she then asserts, "this is the reason why the above trade is no longer possible".

And here, the Commissioner is completely wrong, and at several levels. Firstly, in respect of the EU's SPS legislation, the relevant law has been incorporated into the UK statute book, unchanged, and has been given the status of "retained law". That means it still applies.

Secondly, within the framework of the SPS system, before any third country can trade with the EU in live bivalve molluscs, it must be formally authorised to do so, by virtue of being listed Commission Implementing Regulation (EU) 2019/626. And, although it took some finding, we have established that the UK has been formally listed, with effect from 1 January 2021, by Commission Implementing Regulation (EU) 2020/2209.

Now, the point about this listing is that it is conditional on the third country guaranteeing that it will be bound by the relevant provisions of EU law. Specifically, as set out in 2019/625, live, chilled, frozen or processed bivalve molluscs from third countries are "authorised for the entry into the Union from a food safety perspective" when prepared in accordance with Regulation (EC) No 853/2004.

In particular, Annex II, Section VII applies, and in respect of the UK's trade, Chapter II states that food business operators may only place live bivalve molluscs collected from class A production areas on the market for direct human consumption. Those collected from class B production areas can only be placed on the market for human consumption only after treatment in a purification centre or after relaying.

What is very evident in this part of the law is that no distinction is made between member states and third countries. Both are equally bound by it. And there is no requirement, specific or implied, that requires third countries to submit molluscs collected from class B production areas to purification before entry into the Union customs area.

This, of course, is the way the system works – the way it must work in order to comply with the terms of the WTO SPS Agreement, which prohibits measures which arbitrarily or unjustifiably discriminate between Members "where identical or similar conditions prevail".

In her letter, Kyriakides asserts that the UK is no longer bound by EU law but, not only is the UK so bound, it has "provided the necessary guarantees required by Delegated Regulation (EU) 2019/625 in order … to be listed".

However, the Commissioner then goes on to claim on her letter that in the UK Border Operating Model, Defra "correctly underlined that the export of live bivalve molluscs from Class B production areas for further depuration in the EU would not be allowed".

Yet this reference, despite being picked up joyously by Yorkshire Bylines (and PoliticsHome), is more than a little disingenuous. It applies specifically to "wild" molluscs, whereas – the greater trade is with farmed molluscs. And the reason why the "wild" product was excluded gave the clue as to the whole problem: "there is no EHC suitable for them".

As to the farmed product, Defra asserts that it had been advised on 27 September 2019 that when these were exported to the EU for purification, they could be certified with the model Export Health Certificate set out in Part A of Annex IV to Commission Regulation (EC) No 1251/2008. Defra, therefore, advised the UK industry accordingly, stating that the trade could continue.

Kyriakides now claims that this certificate, as clear from its title, provides animal health guarantees only, and cannot be used to provide public health assurances, should live bivalve molluscs be intended for human consumption.

The respect of animal health requirements, she says, cannot dispense with the respect of public health obligations. She adds that, "This is why the reference to this certificate at the time, together with the fact that the UK had a thorough knowledge of the EU import requirements, led the Commission services to understand this request for clarification as relating to the export of live animals intended for further relaying and not for direct human consumption, and to reply accordingly".

As interest on the purification of live bivalve molluscs intended for human consumption grew, the Commission services wrote to the Chief Veterinary Officer on 8 February 2021 to further specify the conditions governing the export of live bivalve molluscs intended for human consumption to the EU, including on that particular aspect.

Clearly, there is some dispute about the events on 27 September 2019, but it is clear that Defra thought that the certificate set out in 1251/2008 could be used without apparently realising that it could not.

Nonetheless, when Eustice writes that his department can see "no scientific or technical justification" for what amounts to an arbitrary change to 853/2004, he has a valid point. And the Commission could easily regularise the position by issuing a model EHC for use with product gathered from class B production, intended for human consumption only after treatment in a purification centre, as permitted by 953/2004.

In material respects, therefore, the Commission is wrong, and yet Yorkshire Bylines believes, the "hapless DEFRA secretary Eustice" to have been "humiliated and schooled by the EU". This is from Anthony Robinson formerly "a sales engineer, now retired and living in North Yorkshire after a long career representing several European manufacturers in the UK".

Also rampant is The Oysterman Tom Haward. He is determined to condemn "government incompetence and negligence", relying for his "proof" on the exclusion of "wild" molluscs by Defra – something we had known about all along.

To that extent, there is something of a dividing line. There are those who, come what may, are determined to believe that there is a third country "ban" in place, and will accept any assertions from virtually any source which supports that belief.

But the inconvenient truth is that the Commission has got it wrong. It is arbitrarily excluding UK product in breach of its own law, supported by a Commissioner who clearly doesn't understand the system for which she is responsible.

And yet, since this is quite clearly an issue which is beyond the capability of the legacy media to report accurately, we are no further forward. Firms are going out of business and all they can do is lament.

Also published on Turbulent Times.

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