F&D - UPDATE 12

Dr. Richard North PhD. [UKIP]
Research Director EDD [European Parliament]
26 April 2001
Resumption of exports

Resumption of exports 

This is an updated and expanded version of Update 6 - which had limited circulation - taking into account latest developments and research. It summarises the technical, legal and political position in relation to foot and mouth disease and the resumption of exports (intra-community and third country), evaluating how and on what terms the UK will again be permitted to export. 

The legal position 

As soon as Britain declared that it had confirmed cases of foot and mouth disease, it formally lost its disease-free status and became a FMD infected country. Intra-community and third country exports were then formally banned by the EU (Commission Decision 2001/145/EC) on the 21st February. The question is now how, and under what circumstances, that ban will be lifted. 

Here, there is terrible confusion, not least because of the complexity of the rules and the failure to understand that there are two different sets of rules. Firstly, there are international rules set out by the Office International des Epizooties and then there are the internal rules set by the EU. 

Of the two sets of rules, the OIE code (Chapter 2.1.1) specifies a complex set of conditions for the resumption of trade, as follows (2.1.1.6): 

Where vaccination is not practiced: 

a. three months after the last case, where stamping out and serological surveillance are carried out; or 

b. three months after the slaughter of the last vaccinated animal where stamping out, serological surveillance and emergency vaccination are applied. 

Where vaccination is practiced: 

a. 12 months after the last case where stamping out is applied; or 
b. two years after the last case without stamping out; 

provided that an effective surveillance has been carried out. 

From these rules can be seen the origin of the myth that, if vaccination was applied, vaccinated animals would have to be slaughtered. However, what turns this into a myth is the simple fact of our membership of the EU. 

As long as we are members of the EU, we are bound by EU rules and our ability to trade, both with the community and with third countries is (and will continue to be) determined by the EU. As regards the OIE rules, the EU is not a signatory to the OIE and is not bound by its provisions which, in any event, it regards as a "minimum" standard. Therefore, as to our resumption of trade, this will be determined by rules laid down by the EU. 

Precise rules 

As to what precise rules will be applied, this is unclear and will remain so for some time. The problem here arises from the instruments applicable to foot and mouth and intra-community trade which do not appear to confer any specific authority to ban exports. 

To that effect, the Decision which actually bans exports relies on Council Directive 90/425/EEC as last amended by 92/118/EEC and 89/662/EEC, again amended by Directive 92/118/EEC, and on Directive 85/511/EEC (as amended). None of these instruments appear specifically to authorise the Commission to prohibit intra-community or third country trade. 

Therefore, it must be assumed that the Commission is relying for its authority on the Treaty establishing the European Community, in which case the operative Article is almost certainly Article 30 (formerly Article 36) of the TEC. Additionally, though, the Commission might be relying on general authority to act in relation to foot and mouth disease, conferred by Article 16 of Directive 85/511/EEC - "The Commission shall adopt measures and shall implement them immediately…". 

In other words, there are no clearly defined rules by which the Commission has prohibited intra-community trade. Equally, there are no precise rules by which the Commission is bound in removing the prohibition, other than having to refer to the standing veterinary committee for an opinion. We are in unchartered waters. 

The Standing Veterinary Committee 

Clearly, however, resumption of trade will be permitted until some time after the current epidemic has been brought under control. Some clues as to how the Commission will approach this are given in Council Decision 2001/257/EEC (authorising vaccination in the UK), where the authority of Article 16 (85/511/EEC) is cited in respect of restrictions applied to fresh meat. Here it is specified that those restrictions shall apply "…not earlier than 12 months after the completion of vaccination and 12 months after the latest outbreak in the vaccination zone, whichever is the latest." 

It is possible, on this basis, that the Commission might apply these criteria to the general export prohibition, but - since the UK has no intention of vaccinating, at present - it may apply the OIE three-month period, this cannot be guaranteed. 

Whatever decision is taken, it will in fact be taken in the first instance not by the Commission but by a shadowy organisation known as the Standing Veterinary Committee (SVC). The SVC is one of the EU's nine "regulatory committees", set up under Council Decision 68/361/EEC to "carry out the duties devolving upon it under the instruments adopted by the Council in the veterinary field". 

Its role in determining the relaxation of the export ban is simple. While the Commission, nominally makes the decisions, it can only to so on the basis of a favourable opinion from the Standing Veterinary Committee. It cannot deliver any decision unless it is agreed by the SVC. In other words, the SVC actually runs the show . 

Furthermore, the SVC takes on an intensely political role. Member state representatives tend to vote on crucial issues according to their respective national interests, taking instructions from their governments as to which line to take. 

In common with other EU organisations, they vote by qualified majority. A total of 87 votes can be cast, with Germany, France, Italy and the UK each casting ten votes. Spain has eight votes, Belgium, Greece, Netherlands and Portugal each carry five, while Austria and Sweden have four each. Denmark, Ireland and Finland have three votes each and Luxembourg casts two.

For a favourable opinion, 62 votes must be cast in favour, for there to be "no opinion" there must be fewer than 62 in favour and fewer than 62 gainst and, for an "unfavourable opinion", there must be 62 or more votes cast against. Nine countries, therefore, can carry a majority, over-ruling the UK or blocking a UK initiative. 

Thus, in negotiating export clearance, Britain, must negotiate with a group of political veterinarians appointed by foreign nations who also happen to be our major trading competitors, nine of which can completely sabotage Britain's hopes for an early resumption of exports. 

Prospects 

As has already been mentions, what will be crucial to the resumption of exports will be the absence of disease in the UK. However, Commission sources indicate that the criteria used to determine the absence of disease will include that key phrase "serological surveillance". The UK government will be required to blood test a large number of animals, in areas yet to be agreed, to a sampling plan yet to be agreed, to demonstrate that there is no significant level of seroposivity - i.e., that there are few animals remaining alive which have been exposed to FMD, whether symptomatic or not. 

Precisely what sampling programme will be agreeable, and what level of seroposivity will be agreeable will be determined by the SVC, after representations from the UK. However, it is likely that political calculations will predominate. Central to those is the question which could be addressed to any British farmer outside the FMD hotspots - would you buy stock from Cumbria or Devon? 

Protective instincts, solidified by lobbying from farming interests throughout the Community, will probably dictate similar response in respect of any British produce. It is unlikely, therefore, that the SVC will vote of the resumption of UK exports in a hurry. Either than or will impose such rigorous conditions that the UK will be unable to fulfil them. 

More likely, the SVC will be unable to agree, in which case the Commission will not be able to act and the matter will have to be referred to the Council. The Council then has three months to make a decision but, given the highly political nature of any resolution, the Council could well oppose any proposals coming through - voting again on qualified majority. 

Then, once again, we could well end up in that in that twilight world that arises from our membership of the EU, where the matter is passed up to an EU summit. This is what happened in Florence in June 1996, when - as a result of BSE - John Major had to negotiate the terms for the lifting of the export ban on British beef. Then we were in uncharted waters and the resolution of the ban was determined as much by political as technical issues, none of which could have been predicted. 

Thus, following the BSE precedent, it would be similarly unwise to predict when, and on what terms, the current export ban for British livestock, meat and meat products will actually be lifted. The only thing we can predict with any certainty is that negotiations will be intensely political and their outcome will be determined by a myriad of factors, many of which we cannot at this stage anticipate. 

The one thing which can be confidently predicted is that we are unlikely to see any export ban lifted within two years, even if the epidemic stopped dead on 7 June. 

ends 

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