Bridges Trade BioRes • Volume 4 • Number 11 • 11th June 2004

EC RELEASES FIRST SUBMISSIONS IN GMO DISPUTE - US RESPONDS

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EC RELEASES FIRST SUBMISSIONS IN GMO DISPUTE - US RESPONDS

The EC has defended its policies on genetically modified organisms (GMOs) in its first written submission in the dispute launched by the US against a ‘de facto’ EC moratorium on the approval and marketing of biotech products (see BRIDGES Trade BioRes, 30 April 2004). The US gave an oral response to the EC’s submission during the first panel hearing on 2 June.

In the 17 May submission, the EC highlighted risks associated with GMOs identified in various scientific reports and assessments, such as UK field trials concluded in September 2003 (see BRIDGES Trade BioRes, 3 October 2003). It also drew attention to stricter precautionary measures adopted by other countries, including total bans on GMOs. This, according to the EC, demonstrated the reasonableness of the EC’s more nuanced approach. Moreover, to counter the US argument that biotech products are safe, the EC underscored that the practise and reports of institutions such as the World Health Organisation, international conventions such as the Cartagena Protocol on Biosafety and national regulatory (biosafety) frameworks pointed to a contrary conclusion. Finally, the EC questioned whether the WTO was the appropriate forum for resolving all the GMO issues raised in this dispute. According to the EC, ‘international cooperation’ would have been the appropriate channel for building a sound international framework for addressing some of the issues.

‘The measure at issue’

The EC claimed that it had not adopted any ‘moratorium’ on the approval of GMOs or suspended the application of its GMO legislation. According to the EC, the fact that the complainants had not been able to identify an instrument or text in which a ‘moratorium’ is brought into effect was proof of this assertion. Moreover, a practice not laid down in any document cannot be a challengeable measure. This being the case, the EC argued, the consistency of the EC GMO legislation, its approval systems and the ban on marketing were not within the jurisdiction of the panel and the panel must confine its findings to the ‘measures’ identified in the US panel request.

In its panel request, the US asked the panel to consider the EC’s "general and product specific moratoria" (WT/DS291/23).

Scope of the SPS Agreement

The EC argued that GMOs were too complex to be covered by the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement) alone. It did, however, concede that some aspects of its GMO approach fell within the scope of the SPS Agreement — specifically, the US assertion that the ‘measure’ was causing ‘undue delay’ in the approval of GMO products in the EC. Other aspects of its GMO policies, according to the EC, fell within the purview of the WTO Agreement on Technical Barriers to Trade (TBT), and Article XX of GATT 1994 (General Exceptions). Particularly, the EC argued that the environmental risks, certain health risks and the conservation of biodiversity — all of which its legislation seeks to address — were not covered by the SPS Agreement, and should instead be properly regulated by the Biosafety Protocol. Therefore, the EC urged the panel to interpret and apply the relevant WTO agreements against the background of relevant norms in international law outside the WTO context.

‘Undue delay’

The US argued in its submissions that the EC was in contravention of its obligations under the SPS Agreement, which provides that control, inspection and approval procedures should be undertaken without undue delay. The EC denied any ‘undue delay’, saying that its approval process was slow because requests for additional information had been put to applicants at different stages. These requests, the EC claimed, were justified on the basis of risk assessment, risk management and risk communication endorsed by the international community. Furthermore, the EC noted that its procedures were merely provisional and justified on the basis of the insufficiency of scientific evidence and the adaptation of its directives in light of the evolving science, political and social debate on GMOs.

Risk assessment

The EC pointed out that the US had not challenged the risk assessment that EC member states’ safeguard measures were based on. Nevertheless, the EC made the point that the measures were consistent with the SPS Agreement’s provisions on risk assessment, i.e. they were provisional, temporary and based on the precautionary principle, pending a full assessment at the EC level. They were also maintained by the member states on the basis of available scientific information and in light of insufficient scientific evidence. The EC emphasised that it was in the process of seeking additional information necessary for a more objective assessment of the risk posed by GMOs.

The US response to the EC submission

During the first panel hearing in the GMO case on 2 June, the US in its oral statement dismissed the EC’s defence that the complainants had failed to identify the ‘moratorium’ at issue in any document. According to the US, evidence confirming its existence include statements by leading EC officials and the Commission itself. Furthermore, according to the US the failure by the EC to publish it, only added to the lack of transparency, which the EC should not be "permitted to profit from." Regarding the EC’s claim that its policy is consistent with the Biosafety Protocol, the US pointed out that the Protocol explicitly provides that parties may not disregard their existing international obligations. Thus, the US argued, the Biosafety Protocol did not absolve the EC from complying with its WTO obligations. The US also countered the EC’s argument that issues raised in this case fall outside the scope of the SPS Agreement by highlighting the point that the SPS Agreement explicitly requires the consideration of relevant ecological and environmental conditions in an SPS risk assessment.

On the issue of risks assessment, the US asserted that the EC’s submissions failed to prove that the general or product specific moratoria are based on a risk assessment. Finally, on the issue of "undue delay" the US emphasised that "it is hard to think of a situation that involves undue delay more than a moratorium on approvals", particularly when many of the products caught up in the moratorium have been positively assessed by the EC’s own scientific committees.

The GMO panel hearings will continue in the coming weeks.

Various civil society groups and academics have submitted unsolicited documents to the WTO panel, outlining their legal arguments and various interests and concerns in this case (see BRIDGES, Trade BioRes, 28 May 2004). For the full texts of these amicus curiae briefs are available here.

ICTSD reporting.