GMO’s, WTO and the EU edit

Over the past week, I have been amazed, and occasionally horrified, by the media and civil society response to 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. 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.

-->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.

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.

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. However, as the Panel found that the moratorium currently no longer exist (since 2004, nine biotech products were approved), this finding of inconsistency of 'historical' relevance only. The complainants argued that the moratorium also constituted a violation of a number of other obligations under of the SPS Agreement but the Panel rejected all these claims.

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.

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 safeguard measures were in the form of prohibitions biotech products imposed by individual Member States (Austria, Belgium, France, Germany, Italy or Luxembourg) in spite of the fact that the EC had approved these biotech products. Agreeing with the complainants, the Panel found that none of the 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 with the complainants that the safeguard measures could not be justified as 'provisional measures'under Article 5.7 of the SPS Agreement (the 'precautionary principle' provision) because the relevant scientific evidence in this case was sufficient for a risk assessment.

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.

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.