DISPUTE SETTLEMENT: DISPUTE DS291

European Communities — Measures Affecting the Approval and Marketing of Biotech Products


This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

  

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Current status  back to top

 

Key facts  back to top

Short title:

Complainant:

Respondent:

Third Parties:

Agreements cited:
(as cited in request for consultations)
Request for Consultations received:

Panel Report circulated: 29 September 2006

 

Summary of the dispute to date  back to top

The summary below was up-to-date at
See also: One-page summary of key findings of this dispute

Consultations

Complaint by the United States.  (See also DS292 and DS293)

On 13 May 2003, the United States 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. Regarding EC-level measures, the United States 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 United States. Regarding member State-level measures, the United States 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.

According to the United States, the measures at issue appeared to be inconsistent with the EC’s obligations under:

  • Articles 2, 5, 7 and 8, and Annexes B and C of the SPS Agreement;
      
  • Articles I, III, X and XI of the GATT 1994;
      
  • Article 4 of the Agriculture Agreement; and
      
  • Articles 2 and 5 of the TBT Agreement.

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.

On 7 August 2003, the United States requested the establishment of a panel. At its meeting on 18 August 2003, the DSB deferred the establishment of a panel.

 

Panel and Appellate Body proceedings

At its meeting on 29 August 2003, the DSB established a single panel to examine this dispute and also disputes DS292 and DS293. Argentina, Australia, Brazil, Canada, Chile, China, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Chinese Taipei, Thailand and Uruguay reserved their third-party rights.

On 23 February 2004, the United States, Canada and Argentina jointly requested the Director-General to compose the panel. On 4 March 2004, the Director-General composed the panel. 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 had yet to receive, in the second half of April, further comments from the parties on its interim reports. The panel estimated that it would issue its final reports to the parties by mid-May 2006and that the final reports would 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 products between June 1999 and August 2003, which is when the 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 had 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 had 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 had 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.

At its meeting on 21 November 2006, the DSB adopted the panel reports.

 

Implementation of adopted reports

At the DSB meeting on 19 December 2006, the European Communities announced its intention to implement the recommendations and rulings of the DSB in a manner consistent with its WTO obligations. However, due to the complexity and sensitivity of the issues involved, the European Communities would need a reasonable period of time for implementation. Pursuant to Article 21.3(b) of the DSU, the European Communities was ready to discuss an appropriate timeframe with Argentina, Canada and the United States.

On 21 June 2007, the United States and the European Communities notified the DSB that they had agreed that the reasonable period of time for the European Communities to implement the recommendations and rulings of the DSB shall be twelve months from the date of the adoption of the panel reports. Accordingly, the reasonable period of time expired on 21 November 2007. On 21 November 2007, the parties informed the DSB that they had agreed to modify the reasonable period of time so as to expire on 11 January 2008.

On 14 January 2008, the European Communities and the United States informed the DSB that they had reached an agreement on procedures under Articles 21 and 22 of the DSU.

 

Proceedings under Article 22 of the DSU (remedies)

On 17 January 2008, the United States requested authorization from the DSB to suspend concessions and other obligations. On 6 February 2008, the European Communities objected to the United States' request for authorization to suspend concessions and other obligations and referred the matter to arbitration under Article 22.6 of the DSU. At its meeting on 8 February 2008, the DSB agreed that the matter had been referred to arbitration under Article 22.6 of the DSU. On 15 February 2008, the European Communities and the United States requested the Arbitrator to suspend its work pursuant to their agreed procedures under Articles 21 and 22 of the DSU. In accordance with the parties' joint request, the Arbitrator suspended the arbitration proceedings from 18 February 2008 until the United States requests their resumption under the circumstances agreed between the parties on 14 January 2008.

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