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Published online by Cambridge University Press: 27 February 2017
European Communities—Measures Affecting the Approval and Marketing of Biotech Products. WT/DS291/R, WT/DS292/R, & WT/DS293/R. At <http://www.wto.org/english/tratop_e/dispu_e/dispu_status_e.htm>.
World Trade Organization Panel, September 29, 2006 (adopted November 21, 2006).
In what was by far the longest panel report in the World Trade Organization’s history, a WTO panel ruled last September that various parts of the European Communities’ regulatory regime for the approval and marketing of “biotech products” (that is, products that contain, or are made from or with, genetically modified organisms (GMOs)) violated the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). The panel report was not appealed and was adopted by the WTO Dispute Settlement Body on November 21, 2006.
In recent years, a heated international debate has developed regarding the production and consumption of food made from or with GMOs. Among the key players in this debate, the United States, supported by many companies who have developed GMO-based products, has pushed for their acceptance; by contrast, the European Communities (EC) and its member states, backed by consumer groups and other activists, have tried to restrict their use through various regulations.
1 Panel Report, European Communities—Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291/R, WT/DS292/R, & WT/DS293/R (Sept. 29, 2006) (adopted Nov. 21, 2006) [hereinafter Panel Report]. The panel’s reasoning and findings were over eight hundred pages long.
2 According to the WTO, the European Union is “known for legal reasons as the European Communities in WTO matters.” See <http://www.wto.org/english/thewto_e/countries_e/european_communities_e.htm=. As a result, the “European Communities” and the “EC” are the terms used to describe the European Union here.
3 More specifically, in this dispute the panel used the term “biotech products” to refer to “plant cultivars that have been developed through recombinant deoxyribonucleic acid (‘recombinant DNA’) technology.” Panel Report, para. 2.2.
4 Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1A, in World Trade Organization, the Results of The Uruguay Round of Multilateral Trade Negotiations: The Legal Texts 59 (1995) [hereinafter The Legal Texts]. Claims were also brought under the Agreement on Technical Barriers to Trade, THE LEGAL TEXTS, supra, at 121, and the General Agreement on Tariffs and Trade 1994, id. at 17. The legal texts are available online at <http://www.wto.org/english/docs_e/legal_e/legal_e.htm=.
5 See WT/DS291/23 (May 13, 2003) (U.S. panel request); WT/DS292/17 (May 13, 2003) (Canadian panel request); WT/DS293/17 (May 14, 2003) (Argentine panel request).
6 Council Directive 90/220/EEC, 1990 O.J. (L 117) 15.
7 Parliament/Council Directive 2001/18/EC, 2001 O.J. (L106) 1.
8 Parliament/Council Regulation (EC) No. 258/97, 1997 O.J. (L43) 1.
9 The product was MS8/RF3, oilseed rape.
10 Article 5.1 provides: “Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations.”
11 Article 5.7 provides:
In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.
12 Opened for signature June 5, 1992,1760 UNTS 79, at <http://www.cbd.int/convention/convention.shtml=.
13 Opened for signature Jan 29, 2000,39 ILM 1027 (2000),at <http://www.cbd.int/biosafety/protocol.shtml=.
14 Opened for signature May 23, 1969, 1155 UNTS 331.
15 The United States signed the Convention on Biological Diversity in 1993 but has not ratified it. Argentina and Canada have signed but not ratified the Cartagena Protocol, and the United States has not signed it.
16 See Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, paras. 448, 450, 471, UN Doc. A/CN.4/L.682 (Apr. 13, 2006).
17 See Tomer, Broude, Genetically Modified Rules: The Awkward Rule-Exception-Right Distinction in EC—Biotech (Dec. 2006), at <http://ssrn.com/abstract=949623=Google Scholar (Hebrew University International Law Research Paper No. 14-06).
18 See Office of the U.S. Trade Representative, 2006 National Trade Estimate Report on Foreign Trade Barriers 239 (2006).
