Penn-

Riyad-Rejrat

• • • • • • • • • Background WTO Consultation Issues The Position of the Parties The Legal Inconsistency Panel Decision Timeline Since the ruling International Implications of the Ruling

Genetically modified organism

Genetically modified foods Genetically engineered organism



What is GMO?

 Genetically Modified Organism or Genetically Engineered Organism 

Why create biotech products?

  Less likely for bug infestation Preserves shelf life

  On May 13 2003, the US together with Canada requested consultations with the EC concerning certain measures implemented by the EC and its member states affecting imports of GM agricultural and food imports. The EC member states delaying imports included:  Austria      France Germany Greece Italy Luxemburg

 The EC member states that created what became known as the moratorium called for a number issues to be addressed:    Clarity of rules in licensing of GMOs and GMO products Inability to give an assurance of safety A comprehensive labeling system to inform consumers about the GMO product.

  The U.S. stated that EU’s “defacto moratorium” starting 1998 affected the approval of biotech products pertaining to   the imports of agricultural products.

the imports of food products.

The US claimed that a number of EU member states maintain national marketing and import bans on biotech products  even though these products have been approved by European Union.

 The Complainant, the United States (DS 291), Canada (DS 292) and Argentina (DS 293) stated that the moratorium violated the following provisions/agreements:  

WTO agricultural Technical Barriers to Trade (TBT)

 

Sanitary/phytosanitary (SPS) agreements and General Agreement Tariffs and Trade.

  The U.S. believed that: The EC’s failure to approve any GMO products between October 1998 and August 2003 constituted a de facto moratorium on product approval.

 With this moratorium, the EC had violated its obligations to the WTO and specifically had failed to adhere to the standards required by the SPS Agreement.

    The Moratorium was a violation of: Article 5.5 and

Article

2.3 of the SPS agreement   Article 5.5 - prohibits “arbitrary/unjustifiable distinctions if such distinctions result in discrimination or a disguised restriction on trade.” Article 2.3 - forbids the application of SPS measures “in a manner which would constitute a disguised restriction on trade.” Annex B(1) and Annex C(1)(b)  which requires all SPS regulations to be published promptly.

Annex C(1)(a)

 no “undue delay” and treatment in a no less favorable manner for imported products than for like domestic products .

  The EC argued:  In the similar case of the U.S.-Shrimp decision, the WTO panel also relied upon other international treaties and agreements.

 the definitions and effects of toxins, additives, containments, and pests were narrowly defined by the complaining parties as described in the SPS agreements and codex standard 193.

 Under Article 5.1 of the SPS agreement, it is important to note that “measures be based on assessments.” Assessments are not legally binding.

The EC argued that the U.S., Argentina and Canada narrowly applied the “risk assessment” implications in the SPS agreements.

   On July 12, 2004 the panel told the DSB that it would not be able to submit a report in six months. Due to the scientific difficulty, the Panel was not able to complete its report until September 29, 2006.

This panel’s ruling is by far the longest panel report in WTO history - over 800 pages long.

   Panel had a mixed ruling:     The EC was in violation of the SPS agreement Annex C(1)(a), first clause with regards to: the “undue delay” in the completion of the approval process for the biotech products, the delays in the approval process for a number of specific products (24 of the 27 issues filed were found in violation) The EC member states were in violation of article 5.1 of the SPS agreement: the “safeguard” measures were not “based on” a “risk assessment” and these measures could not be justified under article 5.7.

STAGES

Consultations US requested the establishment of the panel DSB established the panel Panel reports were circulated to Members DSB adopted the panel reports EC announced its intention to implement the rulings W/ reasonable period of time (12 months from Nov 21, 06) Reasonable period of time expired US & EC modified reasonable period of time to Jan 11, 08 Reached agreement on proc. under Art 21 and 22 of DSU US suspended concessions and other obligations –Jan 17-08, EC objected and referred to arbitration u/ Art. 22.6 of DSU US & EC suspended arbitration & went back to Art 21 & 22

DATE

May 13, 2003 Aug 7, 2003 Aug 29, 2003 Sept 29, 2006 Nov 21, 2006 Dec 21, 2006 Nov 21, 2007 Nov 21, 2007 Jan 17, 2008 Feb 6, 2008 Feb 15, 2008

  Case can set precedent in the following areas:   food safety public health and  environmental health issues.

Case may set precedent   By developing countries which don’t have regulatory regimes for GMOs or By regulation for other industries such as chemicals

       “European Communities: Measures Affecting The Approval and Marketing of Biotech Products.” World Trade Organization. n.d. Web. 20 March 2010.

“Interpreting WTO Law and the Relevance of Multilateral Environmental Agreements in EC Biotech.” Center for International Environmental Law. n.d. Web. 13 March 2010. < http://www.ciel.org/ Publications/ BIICL_ECBiotech_7Jun07.pdf> Lester, Simon. "International Decisions." The American Journal Of International Law. Vol. 101, No. 2 (April 2007): pp 453-459 SPS Agreement. 1994. Agreement on the Application of Sanitary and Phytosanitary Measures, Final Act Embodying the Results of the Uruguay World Trade Organization. World Trade Organization. Web. 20 March 2010.

“U.S. vs. EU: An Examination of the Trade Issues Surrounding Genetically Modified Food.” The Pew Charitable Trust. December 2005. Web. 20 February 2010.

U.S. vs. EC Biotech Products Case. WTO Dispute Backgrounder. The Institute for Agriculture and Trade Policy, Trade and Global Governance Program. Minneapolis, Minnesota, USA.