The following quick and dirty summary is based on the panel's conclusions and recommendations in the interim report from the Trade Observatory website (focusing on the U.S. complaint). It summarizes the summary, and is perforce wholly ignorant of the panel's legal reasoning and detailed assessment of facts. Paragraph numbers are in parentheses.
The panel carefully stated that it did not examine (i) the safety of biotech products, (ii) the likeness of biotech and conventional products, (iii) the right of the EC to require pre-marketing approval, (iv) whether the EC procedures providing for product by product assessment are consistent with WTO law, or (v) the conclusions of the EC scientific committees regarding safety evaluation of specific products. (8.3)
The panel found that the EC approval procedures for GMOs are “SPS measures,” subject to evaluation under the SPS Agreement. (8.4)
No one questioned the right of the EC to consider the risks arising from identified concerns. (8.5)
The panel found factually that the EC applied a general de facto moratorium on approvals of biotech products through the date of establishment of the panel. While the moratorium was not itself an SPS measure, it affected the operation of the approval procedures, which are SPS measures. Factually, the moratorium resulted in failure to complete approval procedures without undue delay, in violation of Article 8 and Annex C of the SPS Agreement. (8.6) In 24 of 27 specific products, the moratorium resulted in undue delay in approval procedures, also in violation of the Article 8 and Annex C. (8.8)
Austria, Belgium, France, Germany, Italy and Luxembourg all took individual measures prohibiting certain biotech products that had been formally approved for use within the EC. Given the opinions of the EC scientific committee, the panel considered that there was sufficient scientific evidence to make a risk assessment, and thus no permission for recourse to a provisional measure under Article 5.7 of the SPS Agreement. (8.9) None of the member states conducted risk assessments meeting the requirements of the SPS Agreement, and the EC risk assessments did not provide reasonable support for the member state prohibitions. (8.10) Therefore, the panel concluded that these measures violated the requirement of a risk assessment contained in Article 5.1 of the SPS Agreement, and by implication also violated the second and third requirements of Article 2.2 of the SPS Agreement (that the measure be based on scientific principles and not maintained without sufficient scientific evidence).
In connection with the U.S. complaint, the panel seems to have found that the EC moratorium did not violate the transparency obligations of Article 7 and Annex B(1) of the SPS Agreement, and did not violate Article 5.1 (requiring a risk assessment) or Article 5.5 (prohibiting arbitrary distinctions in the selected “appropriate level of protection”). Nor did the U.S. establish that the EC moratorium violated Article 2.2 (requirement of necessity) or 2.3 (prohibition of discrimination) of the SPS Agreement. (8.14)
The panel declined to make recommendations in light of its findings regarding the moratorium, pursuant to Article 19.1 of the DSU, as the EC moratorium ended subsequent to the establishment of the panel.
These findings applied in different ways to EC measures relating to different products. As certain product-specific measures found to violate Article 8 and Annex C of the SPS Agreement were not terminated after the establishment of the panel, the panel recommended that the DSB request the EC to bring these measures into conformity.
