Variable Application of Citrus Sector Phytosanitary Import Controls Highlights Practical Challenges of Regulatory Alignment in Future UK/EU Relations

‘Citrus black spot interceptions rose by 17 during 2018 to a total of 53. This increase was attributable to increased mid-season interceptions from both Brazil (26) and Argentina (17), both of which voluntarily suspended their exports to the EU in late September and early October, respectively. The remaining ten were attributable to all other citrus exporting countries (for example Uruguay, Swaziland and ZA). Although overall down 57% since 2015, largely due to the on-going implementation of the revised EU emergency measures for citrus black spot, the situation with regards to Brazil and Argentina will be further investigated as part of a plant health audits’

EUROPHYT-Interceptions European Union Notification System for Plant Health Interceptions, Annual Report 2018, 1^st August 2019
https://ec.europa.eu/food/sites/food/files/plant/docs/ph_biosec_europhyt_annual-report_2018.pdf

The huge discrepancy in the level of interceptions of CBS infected fruit between Spain and the Netherlands (24 times larger for Spain), the Netherlands and the UK (2.8 times in the Netherlands) and Spain and the UK (69 times larger in Spain) raises the question as to the extent of the commonality of current regulatory controls within the EU.  This in turn raises the question: what will maintaining regulatory alignment mean in the context of the UK’s withdrawal from the EU customs union and single market?

Will it require only a nominal alignment with EU regulatory requirements, including minimal levels of inspections? Or will it go further by specifying the standards to be met for the import controls applied, in order for the free movement of goods from the UK to the EU to be allowed in products where phytosanitary controls are currently applied by the EU?

While the UK government is determined to break away from a simple continued acceptance of the EU’s rule book (with this being seen as central to the Brexit project) (3), the EC takes the view that in trade with the UK ‘Union law, including systematic controls, will fully apply to imported food, animals and plants without exceptions or equivalency’. This is seen as an important issue, since there are fears in the EU that regulatory divergence will give a competitive edge to UK exporters and traders (4).

This potentially represents a serious point of divergence in negotiating positions. This could carry important implications for the functioning of ACP triangular supply chains used to deliver fresh fruit, vegetables and cut flowers to the UK market. Indeed, the commercial viability of these supply chains would appear to be critically dependent on the continued smooth flow of trade across EU27/UK borders.

This needs to be seen in a context where currently, the infrastructure for the conduct of SPS checks simply does not exist at the UK side of short sailing cross channel routes. Inspections will need to be carried out at dedicated facilities on the outskirts of London. This will serve to lengthen delivery times to final customers along these routes and stripping value out of the supply chain. This would occur irrespective of whether the trade administration systems and border import post infrastructure were in place to avoid border clearance delays along the main EU27/UK trade routes used for the onward shipment of fresh ACP fruit, vegetable and cut flower products to the UK market.

This issue of the nature of future SPS regulatory controls to be applied on mutual EU/UK cross border trade movements, in order to minimize controls and associated delays along EU27/UK transport corridors, will require some detailed discussions to resolve. Discussions which are made more difficult in the face of Covid-19 restrictions on face to face dialogues and negotiations.

It is against this background that this issue reaches substantially beyond the citrus sector, since it strikes at the heart of free movement of good across UK/EU borders once the UK is no longer part of the EU custos union and single market.

The situation is further complicated by the introduction of a certain degree of flexibility in the application of EU SPS controls in the face of the impact of the Covid-19 pandemic on the operation of national controls by the designated national authorities. Foodsafetynews.com, reports ‘the European Commission is to give member states more flexibility to do official controls in the food supply chain because of coronavirus’. It was acknowledged the Covid-19 pandemic ‘represents an “exceptional and unprecedented” challenge for the capacity of member states to conduct official controls and other official activities in line with EU legislation’ (5).

Provision is made for veterinary and phytosanitary controls on animals, plants, food and feed to be carried out by ‘people authorized by national authorities’, where ‘staff of authorities cannot reach the place where the control should be carried out because of movement restrictions aimed at preventing the community spread of coronavirus’. Flexibilities have also been introduced on which labs can carry out official controls and in regard to the use of alternative means of control other than physical checks (5).

This experience of introducing alternative mechanisms of control could potentially provide a basis for finding innovative solution to the implementation of phytosanitary controls in ways which avoid both unnecessary delays in the cross-border movement of goods and any compromising of the underlying phytosanitary control objectives.

While the CEO of the CGA Justin Chadwick, has long taken the view once the UK leaves the EU customs union and single market, citrus black spot controls will no longer be an issue in South Africa’s citrus trade with the UK (given the absence of citrus production in the UK and the citrus specific nature of the fungal infection) (2), wider trade consideration may mean it will remain an issue.

However, given the huge discrepancy in interceptions claimed by Spanish citrus producers, it remains to be seen whether citrus black spot control requirements will have any impact on South African exports to the UK.

Regarding the wider implications of this issue one potential way of squaring the circle would be to focus on the phytosanitary outcomes, rather than specific control requirements. UK specific control regimes should be accepted, so long as they achieve the objective of preventing infected citrus fruit from entering the EU27 territory. This could potentially avoid the introduction of the type of generalized controls on fruit, vegetable and cut flower products crossing an EU27/UK border which would be likely to undermine the commercial viability of current triangular supply chains  used to serve UK markets via initial ports of landing in EU27 member states