The ban of live bivalve molluscs to the EU from UK waters and the UK's request to get it back on EU menus shows the consequences of leaving the EU are not yet fully understood. Let me and a UK Brussels reporter share our views...
A personal commentary & analysis by Arne Mielken, founder of the customs & global trade advisory and training company Customs Manager Ltd.
The UK government cannot understand why the long-standing trade in live bivalve molluscs to the EU from UK waters should stop. After all, this "has benefited both our own shellfish industry and EU restaurants and retailers, which rely on these premium products from the UK".
Why would the EU destroy this trade now and risk an international incident?
The UK said, in it's recent UK parliament debate, see below, that the European Commission has changed its position in recent weeks. "It advised us in writing in September 2019 that the trade could continue. We shared the Commission’s view and worked with the industry on that basis, and that included explaining that 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, but that, in line with the guidance from the EU, trade in the molluscs from farms could continue uninterrupted".
Read the full letter of the UK to the EU here:
What are the rules?
The rules for third countries to import shellfish and other products are laid down in "Commission Regulation (EC) No 1251/2008 of 12 December 2008 implementing 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 (Text with EEA relevance).
The export health certificate to be completed is complex enough to start with (this alone can put you off exporting forever):
What is the problem with the shellfish from the UK?
Well, it is true, more than a month ago, shellfish exports to the EU from the UK were perfectly fine, out of the sudden they are no longer? It is still the same shellfish? What changed?
Well, nothing and everything.
Nothing: The shellfish is still in the same water as it was before.
Everything: BREXIT - the rules of the game have changed dramatically.
UK fishing waters of bivalve molluscs are apparently classed by the EU as ‘Class B’.
The UK Food Agency explains that the "classification of a production area determines the treatment required before Live Bivalve Molluscs (shellfish) may be marketed for human consumption". It looks like shellfish production and relay areas are classified according to the levels of E. coli detected in shellfish flesh. A production area will be classified as A, B or C, with A as the least and C as the most contaminated.
The UK says that Class B shellfish can be supplied for human consumption after one of three processes. The options are:
purification in an approved establishment
relaying for at least one month in a classified Class A relaying area
an EC approved heat-treatment process.
So, these must be depurated before they are fit for human consumption. Before 01 January this year, UK shellfish was normally purified or processed in the EU before it was distributed for human consumption to supermarkets and eateries.
Since 01 January, UK firms have been able to send only pre-purified, ready-to-eat shellfish – accompanied by the export health certificate (see above) – to buyers in the EU’s 27 member states.
The UK believed that the ban originally applied only to wild-caught bivalve molluscs and was understood to have been caused by new EU animal health regulations which are due to come into force on 21 April.
What new regulation?
Regulation (EU) No 2016/429 on transmissible animal diseases ("Animal Health Law") was adopted on 9 March 2016. It constitutes a new European Union (EU) legal framework for animal health providing comprehensive, simple and clear rules for the prevention and control of transmissible animal diseases. These new rules will apply from 21 April 2021.
The principles and rules of the new Regulation apply to kept and wild terrestrial, aquatic and other animals, germinal products and products of animal origin.
The Regulation lays down rules for the prevention, control and eradication of transmissible animal diseases, including emergency measures, and for intra-EU movements and entry into the EU of animals and products of animal origin. The previous EU legislation on animal health, scattered across numerous legal acts, has been replaced by this single and comprehensive legal framework.
The new legal framework for animal health has been complemented by a series of regulatory acts detailing a number of implementing measures including Commission Delegated Regulation (EU) 2020/990 of 28 April 2020 supplementing Regulation (EU) 2016/429 of the European Parliament and of the Council, as regards animal health and certification requirements for movements within the Union of aquatic animals and products of animal origin from aquatic animals (Text with EEA relevance). These strict EU hygiene rules and others mean shellfish that are not ready to be eaten are no longer allowed to enter the bloc, resulting in this multi-million-pound trade grinding to a halt overnight.
Is the ban justified?
In the email sent on Tuesday, January 19th, and seen by PoliticsHome, an EU official said it was “strictly forbidden for bivalve molluscs originating from third countries, [such] as UK" not ready for human consumption to enter the EU at any time, and that "molluscs accompanied by an aquaculture certificate, wild or from aquaculture, cannot, in any case, reach a depuration centre in the EU".
The explainer guide on shellfish imports of the EU explains:
"Specific conditions apply for imports of live or processed bivalve molluscs (e.g. mussels and clams), echinoderms (e.g. sea urchins) or marine gastropods (e.g. sea-snails and conchs). Such products may only be imported into the EU if they come from production areas which have been approved by the competent authority and listed by the Commission on its website. The competent authorities of exporting countries are required to give guarantees on the classification of these products and the close monitoring of the production areas to exclude contamination with certain marine biotoxins causing shellfish poisoning".
The UK says that "On 27 September 2019 the Commission Services provided advice to the UK Chief Veterinary Officer that when these animals are exported to the EU for purification, they can be certified with the model Export Health Certificate set out in Part A of Annex IV to Commission Regulation (EC) No 1251/2008".
Does the UK seek special treatment?
The UK says "We can see no scientific or technical justification for this change and the news was conveyed to us rather casually and after the event. This is not in the collaborative and cooperative spirit in which we wish to work together going forward".
"We (...) must recognize the existing high standards and history of trade between us"
So what does the UK wish the EU to do?
Change its rules or ignore them or grant a derogation to the UK? So that UK molluscs can be sold to the EU as before?
The cake is back
Hm, that sound strangely like "having a cake and wishing to eat it, too!" And what would countries like Greenland and Canada say? They would like special treatment, too, no? The reality is that the UK has decided to leave the EU and now has to adhere to the same rules as any other third country - a good history of trade or not. If the rules on shellfish imports are what they are, then they apply to the UK as they do to any other country.
A UK reporter in Brussels has put it best
What does Brussels think about this request from the UK for special treatment? Well, nothing is official but what my morning tweet review gave quite a few insights in the form of a series of insightful tweets, worth reading:
The shellfish example is showing the true cost of leaving the EU from a trade perspective, with potentially disastrous consequences. Sure we can spin this any way we like, "it's the EU's fault" or "it's the UK's fault", but the fact of the matter remains: The UK is out of the club and has no more say!
The UK can protest but from the outside and EU Member States may not take much notice. And do you really wish to take on the EU Commission when it comes to arguments and scientific evidence? I doubt one will argue and shout its way to victory, especially when blaming the EU Commission for anything and everything on Article 16 and Northern Ireland the week earlier.
Stopping the blame game is hard for some, I get it but to get on each other's good side, everyone must try. For our industries, our businesses, our jobs and our people's sake.
EU and UK - TRY HARDER!
UK Parliament debate 9 February 2021
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