WTO News Item, 29 September 2006
For all the documents relating to this Panel, go to: http://www.wto.org/english/news_e/news06_e/291r_e.htm
The WTO, on 29 September 2006, issued the reports of the panel that had examined complaints by the United States, Canada and Argentina, respectively, against “European Communities — Measures affecting the approval and marketing of biotech products” (DS291, DS292 and DS293).
Extract from summary (for full summary, see below):
"On 29 September 2006, the panel reports were circulated to Members. The Panel found that the European Communities applied a general de facto moratorium on the approval of biotech produvcts between June 1999 and August 2003, which is when this Panel was established. Before the Panel, the European Communities had categorically denied the existence of such a moratorium. The Panel further found that, by applying this moratorium, the European Communities has acted inconsistently with its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement because the de facto moratorium led to undue delays in the completion of EC approval procedures. The Panel, however, found that the European Communities has not acted inconsistently with its obligations under other provisions raised by the complaining parties, including Articles 5.1, 5.5, 5.6, 2.2 or 2.3 of the SPS Agreement.
"With regard to the product-specific EC measures, the Panel found that the European Communities has acted inconsistently with its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement in respect of the approval procedures concerning 24 out of 27 biotech products identified by the complaining parties because there were undue delays in the completion of the approval procedures for each of these products. The Panel found, however, that the European Communities has not acted inconsistently with its obligations under any other provisions raised by the complaining parties, including Articles 5.1, 5.5 and 2.2 of the SPS Agreement , with regard to any of the products concerned.
With regard to the EC member State safeguard measures, the Panel found that the European Communities acted inconsistently with its obligations under Articles 5.1 and 2.2 of the SPS Agreement with regard to all of the safeguard measures at issue, because these measures were not based on risk assessments satisfying the definition of the SPS Agreement and hence could be presumed to be maintained without sufficient scientific evidence."
The following is the summary report taken from the WTO web site
European Communities — Measures Affecting the Approval and Marketing of Biotech Products
Summary up-to-date at 9 October 2006 - Panel Reports circulated but not yet adopted by the DSB
Complaints by the United States (WT/DS291), Canada (WT/DS292) and Argentina (WT/DS293).
On 13 May 2003, the United States and Canada requested consultations with the EC concerning certain measures taken by the EC and its member States affecting imports of agricultural and food imports from the United States and Canada. Regarding EC-level measures, the US and Canada asserted that the moratorium applied by the EC since October 1998 on the approval of biotech products has restricted imports of agricultural and food products from the US and Canada. Regarding member State-level measures, the US and Canada asserted that a number of EC member States maintain national marketing and import bans on biotech products even though those products have already been approved by the EC for import and marketing in the EC. On 14 May 2003, Argentina requested consultations with the EC on the same matter.
According to the US, the measures at issue appear to be inconsistent with the EC’s obligations under:
According to Canada, the measures at issue appear to be inconsistent with the EC’s obligations under:
Canada also considered that the measures at issue nullify or impair benefits accruing to Canada in the sense of Article XXIII:1(b) of the GATT 1994.
According to Argentina, the measures at issue appear to be inconsistent with the EC’s obligations under:
In dispute WT/DS291, Australia, Argentina, Brazil, Canada, Chile, Colombia, India, Mexico, New Zealand and Peru requested to join the consultations, The EC informed the DSB that they had accepted the requests of Australia, Argentina, Brazil, Canada, Chile, Colombia, India, Mexico, New Zealand and Peru to join the consultations.
In dispute WT/DS292, Australia, Argentina, Brazil, India, Mexico, New Zealand and the United States requested to join the consultations. The EC informed the DSB that they had accepted the requests of Australia, Argentina, Brazil, India, Mexico, New Zealand and the United States to join the consultations.
In dispute WT/DS293, Australia, Brazil, Canada, India, Mexico, New Zealand and the United States requested to join the consultations. The EC informed the DSB that they had accepted the requests of Australia, Brazil, Canada, India, Mexico, New Zealand and the United States to join the consultations.
On 7 August 2003, the United States, Canada and Argentina each requested the establishment of a panel. At its meeting on 18 August 2003, the DSB deferred the establishment of the panels. Further to second requests to establish a panel from the US, Canada and Argentina, the DSB established a single panel at its meeting on 29 August 2003.
On 23 February 2004, the United States, Canada and Argentina requested the Director-General to compose the panel. On 4 March 2004, the Director-General composed the panel. Argentina (in respect of the United States’ and Canada’s complaints), Australia, Brazil, Canada (in respect of the United States’ and Argentina’s complaints), Chile, China, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Chinese Taipei, Thailand, Uruguay and the United States (in respect of Canada’s and Argentina’s complaints) reserved their third-party rights.
On 12 July 2004, the Chairman of the Panel informed the DSB that it would not be able to complete its work in six months, due, inter alia, to the parties’ common request for additional time to prepare their rebuttals. On 18 August 2004, the Chairman of the Panel informed the DSB that that the Panel estimated that it would issue its final report to the parties by the end of March 2005, and that the delay was due to the parties’ common request for additional time to prepare their rebuttals as well as the Panel’s decision to seek scientific and technical expert advice pursuant to Article 11 of the Agreement on Sanitary and Phytosanitary Measures and Article 13 of the DSU. On 2 November 2004, the Chairman of the Panel informed the DSB that as a result of the time taken to identify and select experts and, more importantly, in view of a joint request by all four parties that they be granted additional time to prepare their further submissions to the Panel, it would not be possible for the Panel to issue its final report to the parties by the end of March 2005, and that the Panel estimated that it would issue its final report to the parties by the end of June 2005. On 13 June 2005, the Panel informed the DSB that the Panel estimated that it would issue its final report to the parties by the end of October 2005. On 11 August 2005, the Panel estimated that it would issue its final report to the parties by the end of December 2005. On 21 December 2005, the Chairman of the Panel informed the DSB that the Panel required additional time to prepare and finalize its report. The Panel estimated that it would issue its final report to the parties be the end of March 2006. On 30 March 2006, the Chairman of the Panel informed the DSB that it would not be possible to issue its final reports to the parties at the end of March 2006 as the Panel has yet to receive, in the second half of April, further comments from the parties on its interim reports. The Panel estimates that it will issue its final reports to the parties by mid-May 2006. It is estimated that the final reports will be circulated to Members no later than the end of September 2006.
On 29 September 2006, the panel reports were circulated to Members. The Panel found that the European Communities applied a general de facto moratorium on the approval of biotech produvcts between June 1999 and August 2003, which is when this Panel was established. Before the Panel, the European Communities had categorically denied the existence of such a moratorium. The Panel further found that, by applying this moratorium, the European Communities has acted inconsistently with its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement because the de facto moratorium led to undue delays in the completion of EC approval procedures. The Panel, however, found that the European Communities has not acted inconsistently with its obligations under other provisions raised by the complaining parties, including Articles 5.1, 5.5, 5.6, 2.2 or 2.3 of the SPS Agreement.
With regard to the product-specific EC measures, the Panel found that the European Communities has acted inconsistently with its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement in respect of the approval procedures concerning 24 out of 27 biotech products identified by the complaining parties because there were undue delays in the completion of the approval procedures for each of these products. The Panel found, however, that the European Communities has not acted inconsistently with its obligations under any other provisions raised by the complaining parties, including Articles 5.1, 5.5 and 2.2 of the SPS Agreement , with regard to any of the products concerned.
With regard to the EC member State safeguard measures, the Panel found that the European Communities acted inconsistently with its obligations under Articles 5.1 and 2.2 of the SPS Agreement with regard to all of the safeguard measures at issue, because these measures were not based on risk assessments satisfying the definition of the SPS Agreement and hence could be presumed to be maintained without sufficient scientific evidence.