Preliminary conclusions of the Panel in the EC – Biotech Products dispute
Much Ado About Little?
Peter Van den Bossche
Last February I have been amazed, and occasionally horrified, by the media and civil society reactions on the EC – Biotech Products dispute currently pending before a WTO dispute settlement panel in Geneva. In this dispute about trade in GMOs between the US, Canada and Argentina (complainants) and the EC (respondent), the WTO Panel sent its preliminary conclusions to the parties on 6 February 2006. Because these conclusions are preliminary and possibly still subject to revision, they are confidential. Nevertheless, as in previous politically sensitive WTO disputes, the conclusions were leaked to the media. In an official statement on 7 February 2006, the US Trade Representative Rob Portman ‘claimed victory’ in this dispute and stated: ‘[T]he facts on agricultural biotechnology are clear and compelling. It is a safe and beneficial technology that is improving food security and helping to reduce poverty worldwide.’ Also on 7 February 2006, Friends of the Earth, a prominent environmentalist NGO, issued a statement condemning the Panel’s conclusions as ‘an inappropriate intrusion into decisions about what food people eat’. According to a campaigner for Friends of the Earth Europe, the WTO Panel ‘has bluntly ruled that European safeguards should be sacrificed to benefit biotech corporations.’ Much of the reporting by the media and commentary by politicians, companies and NGOs - on both sides of the Atlantic- was ill-informed, misleading, inflammatory and unnecessarily alarmist.First of all, it is important to state clearly what the EC – Biotech Products dispute is about, and what it is not about. This dispute concerns three categories of measures: (a) an alleged general EC moratorium since 1998 on the approval of biotech products (the ‘general EC moratorium’); (b) various product-specific EC measures affecting the approval of specific biotech products (the ‘product-specific EC measures’); and (c) various EU Member State safeguard measures prohibiting specific biotech products (the ‘EU Member State safeguard measures’). The complainants claimed that these measures are inconsistent with various obligations of the European Communities under WTO law. This dispute is not about whether biotech products are in general safe or not; not about whether biotech products are ‘like’ their conventional counterparts and thus should be subject to the same regulations; not about whether the EC has a right to require approval of biotech products; and not about whether the EC approval procedures, which provide for a product-by-product assessment requiring scientific consideration of various potential risks, are WTO consistent. Again, it is not about the conclusions of the relevant EC scientific committees regarding the safety evaluation of specific biotech products. In fact, the panel explicitly stated in its conclusions that it did not examine any of these issues, primarily because they were not raised by the complainants and were, therefore, outside the jurisdiction of the Panel. At issue in this dispute is not the WTO-consistency of the EC’s current legislation and policy on GMOs; at issue is merely the WTO-consistency of the three categories of measures referred to above.
Secondly, it is important to analyze in a careful and dispassionate manner the conclusions reached by the Panel on the various claims of WTO-inconsistency. With regard to the claims relating to the EC general moratorium, the Panel established that the EC had indeed applied a general de facto moratorium on the approval of biotech products, but only for the period from June 1999 to August 2003. While this moratorium was not itself a sanitary and phytosanitary (SPS) measure within the meaning of the WTO SPS Agreement, it did affect the operation of the EC approval procedures, which are SPS measures. Article 8 of the SPS Agreement requires WTO Members to observe the provisions of Annex C to the SPS Agreement in the operation of approval procedures. Paragraph 1 (a) of Annex C states: ‘Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that: (a) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products; …’. The Panel concluded that the general de facto moratorium resulted in a failure to complete individual approval procedures without undue delay, and that the EC thus acted inconsistently with paragraph 1(a), first clause, of Annex C to the SPS Agreement, and, consequently, with Article 8 of the SPS Agreement. The complainants argued that the moratorium also constituted a violation of a number of other obligations under of the SPS Agreement, including the key obligations set out in Article 2.2 (obligation to base SPS measures on scientific evidence); Article 2.3 (obligation to ensure that SPS measures do not arbitrarily and unjustifiably discriminate); Article 5.1 (obligation to base SPS measures on a risk assessment) and Article 5.5 (obligation to avoid arbitrary or unjustifiable distinctions in the appropriate levels of sanitary protection). However, the Panel rejected all these claims. Moreover, while the Panel found that the moratorium violated Article 8 and Annex C.1(a), the Panel did not recommend that the EC should take action of any sort. This is because, according to the Panel, the general moratorium that existed at the time of the complaint no longer exists today. In fact, since 2004 the EC has approved nine biotech products for import and sale in the EC.
With regard to the claims relating to the ‘product-specific EC measures’, the Panel noted that it had examined applications for final approval concerning 27 specified biotech products. It found that in respect of 24 of the 27 products (including specific types of maize, sugar beet, oil seed rape and cotton), there had been ‘undue delay’ in the completion of the approval procedure. The Panel thus concluded that the EC’s approval procedures concerning these 24 biotech products are inconsistent with Article 8 and Annex C.1(a) of the SPS Agreement, discussed above. The Panel recommended that the EC bring the product-specific measures into conformity with its obligations under Article 8 and Annex C.1(a) of the SPS Agreement. This means that to the extent the applications for final approval are still pending, the EC should complete these procedures without undue delay. This does not mean that the EC should approve these biotech products for use within the EC. As with regard to the general EC moratorium, the complainants also argued with regard to the product-specific EC measures, that the EC acted in violation of key SPS obligations, such as Article 2.2, Article 5.1 and Article 5.5 of the SPS Agreement. Again, the Panel rejected these claims.
With regard to the claims relating to the ‘EU Member State safeguard measures’, the Panel noted that these nine measures were in the form of prohibitions imposed by an individual Member State (Austria, Belgium, France, Germany, Italy or Luxembourg) on a particular biotech product that had been approved by the EC for use within the EC. The complainants claimed that the EU Member State safeguard measures are inconsistent with the obligations set out in Articles 2.2 and 5.1 of the SPS Agreement and could not be justified as ‘provisional measures’ under Article 5.7 of the SPS Agreement. The Panel agreed with the complainants. It found that none of the nine EU Member State safeguard measures at issue was based on a risk assessment as required by Article 5.1 of the SPS Agreement. Moreover, the Panel agreed that these safeguard measures could not be justified as ‘provisional measures’ under Article 5.7 of the SPS Agreement. The latter provision, which incorporates the precautionary principle, allows WTO Members provisionally to adopt SPS measures that are not based a risk assessment ‘when the relevant scientific evidence is insufficient’. The Panel noted that for each of the biotech products concerned the EC’s relevant scientific committee had evaluated the potential risks to human health and/or the environment before granting EC-wide approval. Subsequently, the relevant committee had reviewed the evidence submitted by the Member State to justify the safeguard measure and had found no reason to call into question its earlier EC-wide approval. The Panel thus considered that the evaluation of potential risks by the EC scientific committees clearly showed that sufficient scientific evidence was available to permit a risk assessment as required by the Article 5.1 of the SPS Agreement. Therefore, according to the Panel, this was not a situation in which Members are allowed to adopt ‘provisional measures’ under Article 5.7 of the SPS Agreement. The Panel also found that by maintaining measures that are inconsistent with Articles 5.1 and 5.7 of the SPS Agreement, the EC had, by implication, also acted inconsistently with the obligations under Article 2.2 of the SPS Agreement. The latter provision requires WTO Member to base SPS measures on scientific principles and not to maintain an SPS measure without sufficient scientific evidence. In light of its conclusions that SPS-inconsistencies existed, the Panel recommended that the EC bring the EU Member State safeguard measures into conformity with its obligations under the SPS Agreement. The European Commission, at least, should not find this hard to accept. It is generally known that the Commission has tried and failed in the past to get EU Member States to remove their safeguard measures on biotech products that are EC-wide approved. The European Commission will now find support for its efforts to remove these measures in the conclusions of the Panel.
As a spokesperson for the European Commission correctly stated, the conclusions reached by the Panel in the EC – Biotech Products dispute will ‘not alter the system or framework within which the EU takes decisions on GMOs’. Articles, reports and statements suggesting the contrary are mistaken and were definitely much ado about little. However, the EC – Biotech Products dispute is undoubtedly only the first in a series of disputes on trade in GMOs. In future disputes, the WTO-consistency of the EC’s current legislation and policy on GMOs is likely to be contested. Such disputes would bring into focus the right of WTO Members to enact their own regulation of GMOs and the extent to which WTO law limits that right. Challenges to the EU rules on GMO traceability and labelling of GMO products are looming in the dark.
Geneva. The author thanks Jill Roche for her very able assistance.
