News and Analysis • Volume 10 • Number 6 • September 2006
Biotech Panel Asks the EU to Conform with SPS Rules
The final report of the WTO panel assessing the complaint brought by the US, Argentina and Canada against the EU’s ‘de facto’ moratorium on the approval of new GMO products essentially reiterated the findings of the interim ruling circulated to the parties in February.
The more than 2000-page final report, which was distributed to the parties in May but only released to the public on 29 September, assessed three issues for their compliance with WTO rules: (i) the alleged general EU moratorium on biotech approvals, (ii) the EU’s failure to approve a number of specific biotech products (referred to as ‘product-specific measures’), and (iii) national-level bans in several EU member states on the marketing and import of specific biotech products after the products had been approved at the EU level.
The panel concluded that the general and product-specific moratoria had led to an ‘undue delay’ in the completion of the EU’s approval procedures for biotech products, thus breaching the EU’s obligations under the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS). In the only significant departure from its interim report, the panel requested the EU to bring the moratoria in line with the provisions of the SPS Agreement “if, and to the extent that” these measures had “not already ceased to exist.” In the interim ruling, the panel had refrained from making any recommendations for future action, arguing that the moratoria as they existed in August 2003 (when the panel was established) had ended. As a caveat, the interim ruling also noted that the panel had not assessed whether amended or new moratoria were now in place. The US insists that the moratoria continue to exist in light of ‘unjustified, politically-motivated delays’ in the processing of applications for various products.
Regarding the national-level bans, the panel felt that sufficient scientific evidence was available to carry out a risk assessment. The panel therefore rejected the EU’s defence of the bans as precautionary measures under Article 5.7 of the SPS Agreement, which allows WTO Members to provisionally adopt SPS measures in the absence of sufficient evidence. The report called on the EU to bring the measures in conformity with the SPS Agreement, which would imply revoking them or providing an SPS Agreement-compliant risk assessment to justify the measures.
US government officials and farm groups welcomed the ruling, which according to US Trade Representative Susan Schwab favoured “science-based policy-making over the unjustified, anti-biotech policies adopted in the EU.” EU officials did not appear overly concerned about the ruling’s implications for the EU’s current rules and procedures, stressing instead that as biotech approvals had resumed, the report had little bearing on its GMO approval regime.
It remains unclear whether any of the parties to the dispute will challenge the ruling. They have 60 days to lodge an appeal.
Civil Society Rebuked
In a strongly worded statement, the panel rebuked the civil society groups that had leaked the interim report earlier this year, pointing its finger specifically at Friends of the Earth Europe (FoEE) and the International Institute for Agriculture and Trade Policy (IATP). Deploring their action as ‘unacceptable’, the panel warned that these breaches of confidentiality threatened to “damage the integrity of the WTO dispute settlement system as a whole.” The panel also noted that both organisations had submitted amicus curiae briefs which the panel had accepted. “In the light of this, it is surprising and disturbing that the same NGOs [...] found it appropriate to disclose, on their own website, interim findings and conclusions of the panel which were clearly designated as confidential,” the panel stated.
Greenpeace, FoEE and IATP said the panel ruling undermined the Cartagena Protocol on Biosafety and the precautionary approach. They were particularly critical of the panel’s conclusion that it was not obliged to take into account the Protocol or the Convention on Biological Diversity since not all parties to the dispute were also party to these agree ments. The panel did, however, stress that it had the option of taking other treaties into account, as the Appellate Body did in the landmark ‘shrimp-turtle’ dispute. The next issue of Bridges will carry an indepth analysis of the ruling.