Bridges Monthly, Year 10 No. 6 September-October 2006, p. 7.
http://www.ictsd.org/monthly/bridges/BRIDGES10-6.pdf
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 agreements. 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.
