1 This has been the case not only for fishery products, but the suspicions refer more generally to most food of animal origin. See for example Alasdair R. Young and Peter Holmes, Protection or Protectionism? EU Food Safety and the WTO, in What's the Beef? The Contested Governance of European Food Safety, Christopher Ansell and David Vogel eds, (2006) pp 281–306; Kathryn M. Pace, EU Import Notifications as a Protectionist Move: an Examination of the Relation between Tariff and Non-Tariff Barriers in Seafood Trade, MSc thesis (2011), Tsunehiro Otsuki, John S. Wilson and Mirvat Sewadeh, A race to the top? A Case Study of Food Safety Standards and African Exports, World bank.

2 See for example DaSilva-Glasgow, Dianna and Bynoe, Mark, Strategic Response to Evolving Food Safety Standards: A Case Study of Guyana's Fish Export, Estey Center Journal of International Law and Trade Policy (2012), Vol 13 No 2, 201–215 Google Scholar; Donna Roberts and Laurian Unnevehr, Resolving trade disputes arising from trends in food safety regulation: the role of the multilateral governance framework, World Trade Review (2005) 469497; Luz B. Diaz Rios and Steven Jaffee., Barrier, Catalyst, or Distraction? Standards, Competitiveness, and Africa's Groundnut Exports to Europe, Agriculture and Rural Development Discussion Paper, World Bank (2008) 1–83.

3 In 1997, the EU banned shrimps from Bangladesh for noncompliances with its requirements. Although the shrimp export sector suffered considerable losses as a result of the ban, subsequent compliance with HACCP principles enabled an increase in exports. As reported by Yunus (2009), “From the second year the accrued benefits far outweighed the annual costs of the compliance and hence, justify the annual costs incurred. In the long run HACCP compliance helped Bangladesh export additional US$ 35 million annually”. See Yunus, M., EU Ban, HACCP Compliance and Shrimp Exports from Bangladesh. The Bangladesh Development Studies Vol. XXXII, No. 3. (2009) pp41–57 Google Scholar

4 Dey et al. (2005) reported that following better implementation and enforcement of HACCP procedures, Sri Lanka has been able to increase fish exports to the EU by more than 600% in three years. See Dey, M., Rab, M., Jahan, K., Nisapa, A., Kumar, A., and Ahmed, M.. Food Safety Standards and Regulatory Measures: Implications for Selected Fish-Exporting Asian Countries. Aquaculture Economics and Management, 9(1-2), (2005), pp. 217–236.Google Scholar

5 See among others Jaffee, Steven, and Henson, Spencer, Standards and Agro-Food Exports from Developing Countries: Rebalancing the Debate, World Bank Policy Research Working Paper 3348 (2004) 1–44 Google Scholar; Anh Van Thi Nguyen and Norbert L. W. Wilson, Effects of Food Safety Standards on Seafood Exports to US, EU and Japan, Paper presented at the Southern Agricultural Economics Association Annual Meeting, (2009); Anders, Sven and Caswell, Julie A., Standards as Barriers Versus Standards as Catalysts: Assessing the Impact of HACCP Implementation on U.S. Seafood Imports. American Journal of Agricultural Economics, (2009) Vol. 91, No. 2, pp. 310–321 CrossRefGoogle Scholar

6 Henson, S., Brouder, A.M. & Mitullah, W., Food safety requirements and food exports from developing countries: the case of fish exports from Kenya to the European Union. American Journal of Agricultural Economics, 82, (2000), pp. 1159–1169.CrossRefGoogle Scholar

7 These bans also involved the other countries exporting Nile Perch to the EU. Unlike Uganda and Tanzania, Kenya had more difficulties to adjust to EU standards. Therefore it was downgraded and went from being on list I (which enabled exports to all EU countries) to List II status (which only enabled to export by means of bilateral agreements with specific EU countries)

8 Luz B. Diaz Rios and Steven Jaffee, supra note 2.

9 This fundamental principle is laid down by the article 11 of the regulation 178/2002 that stipulates: “Food and feed imported into the Community for placing on the market within the Community shall comply with the relevant requirements of food law or conditions recognised by the Community to be at least equivalent thereto or, where a specific agreement exists between the Community and the exporting country, with requirements contained therein.

10 See also Ponte, Stefano, Bans, Tests, and Alchemy: Food Safety Regulation and the Uganda Fish Export Industry, Agriculture and Human Values (2007), vol. 24, 179–193.Google Scholar

11 United Nations, The Least Developed Countries Report 2008, Growth, Poverty and the Terms of Development Partnership 2008, (2011) at p 5.

12 Carolina Domínguez-Torres and Vivien Foster, Benin's Infrastructure: A Continental Perspective. World Bank Policy Research Working Paper Series No. 5689, (2011) at p20 available at SSRN: http://ssrn.com/abstract=1871585, visited on 17/08/2011.

13 Bonaventure Houndekon, Conservation et commercialisation des produits de pêche lagunaire, FAO, Proceedings of the symposium on post-harvest fish technology, (1992).

14 FAO/Fishery and aquaculture country profiles, (2008) Vue générale du secteur des pêches national, République du Bénin, p4. This is due to its contribution to limit rural depopulation, the dropping of traditional activities and the reduction of demographic and water draining problems noticeable in Cotonou, the economic capital.

15 Commission Européenne, Bénin, Profil Environnemental du Bénin, Rapport Final Provisoire, 2006.

16 République du Bénin/Délégation de la Commission Européenne au Bénin, Diagnostic de la filière crevette, 2009.

17 République du Bénin, Plan de Relance de la Filière Halieutique, Projet Appui au Secteur Privé, 2007.

18 Commission's green paper on food law, COM(97) 176 final.

19 Documentary assessment refers to a desk analysis of information provided by third countries on their legal and institutional framework as regards the conditions of production and control of the safety of fishery products, and a report on the overall health status in the country. For instance, in 1998, documentary assessments led to the temporary authorizations of 37 countries, while the 35 others were asked to provide more information and guarantees due to the insufficiency of the first guarantees they provided.

20 Referring to the fact that the FVO would focus on third countries where in the past food exports had shown health problems.

21 FVO missions were classified into two categories: the first missions to audit the Competent Authorities (CAs) are called “evaluation missions”, while “inspections” are carried out for the followup to the evaluations. When the results of a follow-up inspection reveal that satisfactory measures had been undertaken, the report is closed. Otherwise, the case is referred to the Commission Services to consider the most appropriate course of action to be taken. (See European Commission, Health and Consumer Protection Directorate-General, Food and Veterinary Office, FVO annual report 2001). The FVO checks compliance with EU food safety and quality requirements at both processing plants and CAs. To ensure transparency, results of the inspection missions are made available promptly to enable the checked country to respond to the observations made, and, if necessary, take necessary measures in due course. Missions in third countries enable in the early days the adoption of policies to monitor production standards for fishery products, and decide emergency restrictions when essential improvements were needed (See European Commission, Directorate-General XXIV Consumer Policy and Health Protection- Food and Veterinary Office, Food and Veterinary Office Annual Report April 1998- March 1999).

22 The 2002 mission was conducted on the basis of three main EU texts that were then in force, namely Directives 91/493/EEC and 92/48/EEC and Decision 98/140/EC. The current regulatory framework in the EU will be discussed in more detail below III-1.

23 Commission Decision 97/296/EC drawing up the list of third countries from which the import of fishery products is authorized for human consumption, OJ 1997 L 122.

24 Commission Européenne, Rapport concernant une mission en République du Bénin du 7 au 11 Octobre 2002 concernant les conditions de production et d’exportation vers l’Union Européenne des produits de la pêche, DG(SANCO)/8719/2002 – MR Final, (2003) at p4.

25 The six texts then presented were still in draft form and contained gaps in the definition of essential parameters such as maximum limits for contaminants in the natural environment, histamine and additives, the list of food contact materials, cleaning and disinfection products allowed.

26 Commission Européenne, supra note 24, at p 6.

27 Council Directive 91/493/EEC laying down the health conditions for the production and placing on the market of fishery products, OJ 1991 L268.

28 Benin was listed on the list II of the annex to Regulation 2076/2005/EC (Commission Regulation laying down transitional arrangements for the implementation of Regulations (EC) No 853/2004, (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament and of the Council and amending Regulations (EC) No 853/2004 and (EC) No 854/2004, OJ 2005 L338/83), amended by Commission Regulation 1666/2006 of 6 November 2006. This regulation gave approval to Benin to export to the EU through bilateral agreements.

29 This new self-imposed measure was implicitly taken by the government of Benin, which was supposed to give a financial compensation to the companies accordingly.

30 Joseph Ouaké, Officer of the Industry and Commerce Ministry in Benin, in Trading Safely: protecting health, promoting development – Benin, STDF video, 2009.

31 Whereby de facto the EU dictates under which conditions it would accept shrimp export from Benin again.

32 The mission of 2009 was carried out on the basis of the article 46 of regulation 882/2004 and the Decision 98/140/EC.

33 These are Obligatory Base of Control and Platform of Transfer.

34 Chapter III of Section VIII of Annex III of Regulation (EC) No 853/2004 and Article 5 of Regulation (EC) No 852/2004.

35 Commission Decision 2009/951/EU of 14 December 2009 amending Annexes I and II to Decision 2006/766/EC establishing the lists of third countries and territories from which imports of bivalve molluscs, echinoderms, tunicates, marine gastropods and fishery products are permitted, OJ L328/70 of 15 December 2009.

36 For instance, an own interview revealed that one shrimp company used to benefit from a prefunding from its main customer right at the beginning of the shrimp season. This gave that company an undeniable advantage because it had a good financial flexibility, which also facilitated banking transactions.

37 The GFL does not explicitly define food safety, but, on the contrary, it states the conditions of an unsafe food: “Food shall be deemed to be unsafe if it is considered to be injurious to health or unfit for human consumption”, taking into account normal conditions of use.

38 Regulation (EC) No 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety; OJ 2002 L31.

39 Food hygiene refers to “the measures and conditions necessary to control hazards and to ensure fitness for human consumption of a foodstuff taking into account its intended use”. (Regulation 852/2004, article 2.a).

40 O’Rourke, Raymond, European food law, Palladian Law Pub., (1998).Google Scholar

41 Regulation 852/2004 on the hygiene of foodstuffs, OJ 2004 L139. It sets basic rules and principles applicable to food business operators throughout the food chain.

42 Regulation 853/2004 laying down specific hygiene rules for food of animal origin, OJ 2004 L 226. It defines specific hygiene rules to be applied to food of animal origin.

43 Regulation 854/2004 laying down specific rules for the organization of official controls on products of animal origin intended for human consumption, OJ 2004 L 226. It sets the rules to be applied by national authorities for the control and enforcement of food hygiene policies.

44 Regulation 882/2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules, OJ 2004 L 191.

45 Risk analysis is a process consisting of three separate but integrated components namely risk assessment, risk management and risk communication. Risk assessment is a process by which scientists evaluate the potential for adverse health or environmental effects from exposure to naturally occurring or synthetic agent (See Risk Assessment: What's it all about?Society of toxicology’s newsletter, Communiqué, Special Issue, p. 9 (1998) at p1. According to article 3.12 of the GFL, risk management means the process, distinct from risk assessment, of weighing policy alternatives in consultation with interested parties, considering risk assessment and other legitimate factors, and, if need be, selecting appropriate prevention and control options. Risk communication is defined by article 3.13 of the GFL as the interactive exchange of information and opinions throughout the risk analysis process as regards hazards and risks, risk-related factors and risk perceptions, among risk assessors, risk managers, consumers, feed and food businesses, the academic community and other interested parties, including the explanation of risk assessment findings and the basis of risk management decisions.

46 As a part of risk management, the precautionary principle enables the adoption of provisional measures in specific circumstances where, following an assessment of available information, the possibility of harmful effects on health is identified but scientific uncertainty persists. Regulation 178/2002, supra note 40, Article 7. The importance of risk analysis in handling food risks has previously been recognized through the communication from the Commission on the precautionary principle (See Commission of the European Communities, Communication from the Commission on the Precautionary Principle, COM (2000) 1, 2000). This paper has outlined the various components of risk analysis, while emphasizing the need to apply the precautionary principle in cases of scientific uncertainty. The application of the precautionary principle which is mentioned in the Treaty only in relation to the environment, must be extended to risks related to human, animal and plant health, taking into account the costs and benefits of action or lack of action.

47 HACCP is as systematic and science based approach that enables the detection of potential food safety hazards in order to take preventive measures accordingly. The adoption of a HACCP procedure consists in identifying along the process of preparation, processing and distribution the stages essential for food safety. Called Critical Control Points (CCPs), those stages are the basis for the detection of potential hazards in foodstuffs, and represent the way forward to the setting down of the most adequate system for their prevention, elimination or reduction to acceptable levels. Overall, the HACCP consists of seven distinct principles: a- Conduct of a hazard analysis; b- Identification of CCPs; c- Establishment of critical limits at CCPs; d- Establishment and implementation of effective monitoring procedures at CCPs; e- Establishment of corrective actions; f- Establishment of verification procedures; g- Establishment of documentation and record keeping.

48 Regulation 178/2002, Article 10.

49 Regulation 854/2004, Article 11(4).

50 Due to their particular activity, some establishments do not need a prior authorization to export towards the EU. There are mainly establishments carrying out only primary production, transport operations, storage of products of animal origin, not requiring temperature-controlled storage conditions. Besides, some products of animal origin were not assigned any specific hygiene requirements by the regulation 853/2004 laying down specific hygiene rules for food of animal origin. In the same way, the latter are not required to appear on a list of authorized establishments.

51 Regulation 854/2004, Annex III.

52 Decree No. 114, laying down the quality assurance of fishery products in the Republic of Benin, OJ 2003 No. 20.

53 Quality assurance is defined as all the concerted and systematic measures necessary to obtain reasonable assurance that a product or service meets given requirements of quality. As such, quality assurance constitutes a strategic function that works together with the quality control to achieve its goal. In this regard, quality control should be understood as a technical function that includes all the technical and operational activities implemented to meet the requirements of product quality.

54 Faure, Michael, Goodwin, Morag and Weber, Franziska, Bucking the Kuznets Curve: Designing Effective Environmental Regulation in Developing Countries, Virginia Journal of International Law, Vol. 51 pp. 95–157 (2010), at p. 100.Google Scholar

55 Berkowitz, Daniel, Pistor, Katharina and Richard, Jean-Francois, The transplant effect, The American Journal of Comparative Law, Vol. 51, No. 1 pp. 163–203, at p 167CrossRefGoogle Scholar

56 Legality is determined by the ability of a country to give meaning to the transplanted formal legal order and to apply it within the context of its own socioeconomic conditions (See Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard, supra note 55 at p 167).

57 Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard, supra note 55, at p 189.

58 The government had indeed to incur expenses to support companies to compensate for their losses and had made financial commitments in relation to projects funded by the EU and by the Belgian Technical Cooperation. For instance, the equipment of laboratories within the framework of the Quality Program (funded by the EU and implemented by UNIDO) has been stopped at some point because Benin did not keep its promises with respect to the estimates.

59 Ivory Coast also exported about 100.000 tons through directly transshipped in the EU from freezer vessels flying the flag of either a third country or a EU Member. See respectively Commission Européenne, Rapport d’Un Audit Effectué au Sénégal du 22 Janvier au 01 Février 2013 afin d’Evaluer les Systèmes de Contrôle en Place Régissant la Production des Produits de la Pêche Destinés à l’Exportation vers l’Union Européenne, DG(SANCO) 2013- 6708 - RM FINAL, 2013; Commission Européenne, Rapport d’Un Audit Effectué en Côte d’Ivoire du 22 Janvier au 01 Février 2013 afin d’Evaluer les Systèmes de Contrôle en Place Régissant la Production des Produits de la Pêche Destinés à l’Exportation vers l’Union Européenne, DG(SANCO) 2013-6706 – RM FINAL, 2013

60 Another 1000 tons were transshipped in the EU. See Commission Européenne, Rapport Final Concernant une Mission Réalisée au Togo du 14 au 18 Octobre 2002 Concernant les Conditions de Production et d’Exportation vers l’Union Européenne des Produits de la Pêche, DG(SANCO)/8698/2002 – MR Final, 2002

61 However, it should be noted that the FVO reported in 2013 that doubts remain about the reliability of the results of laboratory analysis in Ivory Coast. Likewise, some shortcomings were pointed out in the control system and some recommendations from earlier FVO reports were yet to be applied.

62 Watson, Alan, The Evolution of Western Private Law, The John Hopkins University Press, (2001) at p. 198.Google Scholar

63 Daniel Berkowitz, Katharina Pistor and Jean-Francois Richard, supra note 57, at p. 190.

64 See European Commission/Directorate-General for Health and Consumers, Report from the Commission to the Council and to the European Parliament on the experience gained from the Implementation of the Hygiene Regulations (EC) No 852/2004, (EC) No 853/2004 and (EC) No 854/2004 of the European Parliament and of the Council of 29 April 2004, European Communities 2009.

65 Stefano Ponte, supra note 10.

66 This was an important step to properly ensure the obligation of traceability as required by the food law.

67 Article 50 provides that a general plan be established to clarify the practical modalities for managing a crisis whose risks cannot be effectively prevented, eliminated or reduced to an acceptable level by the provisions of Article 47. Similarly, Article 51 refers to the same Article 47, and requires the Competent Authority to inform Beninese authorities whenever measures of Article 47 are not sufficient for an efficient management of risks involved. However, contrary to expectations, the Article 47 invoked in both cases does not provide any measure of food risk management. It states: “The protection of professional secrecy shall not prevent the dissemination to the competent authorities of information relevant to the functioning of market surveillance and enforcement in the field of food and feed. The authorities receiving information covered by professional secrecy shall ensure its protection in accordance with Article 46.”

68 Decree No. 2001-094 of 20 February 2001 laying down quality standards for drinking water in Benin.

69 Article 3.1 of SPS Agreement, and 2.4 of the TBT Agreement.

70 Romain Houssa and Marijke Verpoorten, The Unintended Consequence of an Export Ban: Evidence from Benin's Shrimp Sector, CRED Working Paper 1304, (2013), at p21

71 Stefano Ponte, supra note 10. This white-coat machinery consists in “fixing the system of regulations and inspection and by performing the ritual of laboratory testing for all exports consignments”. The phrasing had been specifically used to qualify a similar situation of alternative bans and lifts of bans that occurred in Uganda in the end of the nineties. More generally, the EU import bans had then affected the countries that export to the EU Nile Perch captured in lake Victoria. Various reasons motivated those bans such as cholera outbreak in the region, alleged poisoning of the lake from the use of pesticides as means of capture, deficiencies in the regulatory and control systems.

72 Mohamed Amaskane, Appui aux Systèmes d’Information sur les Mesures Sanitaires et Phytosanitaires au Benin, Rapport de Mission MTF/BEN/053/STF, at p16, 2010.

73 Not only in Benin, but also more generally see: Edward M. Wise, The transplant of legal patterns, The American Journal of Comparative Law, Vol 38 pp 1–38 (1990) at p3.

74 EU food law provides for a system of traceability that enables the recall of products for which doubts subsist as to their safety for consumption. In the same way, consignments that are found failing to meet the requirements must be seized or destroyed according to the seriousness of the risk. However this does not happen in practice. Problems are solved contractually among the parties, usually with a price discount. (See Stefano Ponte, supra note 10).