Source: EuropaBio

In May 2003, the United States (US), Canada and Argentina initiated a WTO dispute settlement process against the European Union (EU), citing an alleged de facto moratorium on approvals of biotechnology products, as well as the existence of individual Member State (Austria, Luxembourg and Italy) marketing and import prohibitions on previously approved biotechnology products. According to these countries these prohibitions were not scientifically justified and thus contrary to WTO rules.

In August 2003, the WTO Dispute Settlement Body announced the formation of a single panel to rule on the case.  In April 2004, the first submissions of evidence began, and several other WTO members, including Australia, Brazil, Chile, Colombia, India, Mexico, New Zealand and Peru, reserved their rights as third parties to benefit from the ruling. 

A interim report including findings and conclusions is expected to be submitted by an expert panel of the WTO’s Dispute Settlement Body (DSB) on the 7^th of February 2006 to the two sides. A final ruling will ensue in the following weeks.

Why did the US, Canada and Argentina take their case to the WTO?

The U.S., Canada and Argentina believe that the EU’s de facto moratorium has significantly harmed their export markets, particularly corn shipments which typically include GM varieties, and these are a critical source of revenue for farmers in these countries.

The countries argued that de facto moratorium is without scientific basis,  indeed, they argue that EU has never offered any scientific evidence to justify the moratorium or the marketing bans by the Member States. They also argue that moves by the EU were inconsistent with WTO free trade agreements, particularly the Agreement on Technical Barriers to Trade (TBT) and the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).

The SPS recognizes that countries are entitled to regulate crops and food products to protect health and the environment. The agreement requires, however, “"sufficient scientific evidence" to support trade-restrictive regulations on crops and food products to protect health and environment  (Articles 2.2 and 5.1). The SPS Agreement also calls for approval procedures to be carried out without “undue delay”, (Article 8 and Annex C(1)(a). 

What does the EU defence claim?

The EU’s defence claims that delays are not “undue,” but provisional, and are the result of incomplete information pertaining to risk assessments.  They also deny the existence of a moratorium, citing that no official communication to this effect has ever been made. 

Are the biotech products in question safe?

According to the EU’s own regulatory bodies (European Commission, the European Food Safety Authority, and various EC scientific committees), yes the biotech products in question are safe.  Before any GM foods (or processed food products with GM ingredients) are approved for commercialisation in the European Union, they are tested rigorously by independent expert committees. These bodies approve a new GM food only when they are completely satisfied that it is as safe as its conventional counterpart. Similar safety assessment mechanisms exist in other parts of the world.

The EU has never offered any scientific evidence to justify the moratorium or the marketing bans by the Member States.

Why did the EU’s approval process for GM products really fail?

Despite extensive efforts to develop a uniform EU-wide policy for approvals and trade in GM crops and foods, negative media coverage and actions by opponents to biotechnology pushed the issue of GM foods quickly to the forefront of political debate in Europe. As such, in the late 1990s  biotechnology and GMOs became politically unpopular and politicians found it difficult to approve GM crops and foods despite numerous scientific reviews that invalidated safety concerns.

The EU reacted to this by adopting the “precautionary principle” in evaluating the safety of GM products. Under the EU precautionary principle, scientific research must be exhaustive and prove categorically that a food product is safe before it can be approved for production and sale. As a result, applying the precautionary principle to GM products can cause their approval to be delayed for years or even decades.

Does the UN Biosafety Protocol not allow the use of the precautionary principle to ban the import of GMOs…?

The EU argues that its’ actions were taken under both the Biosafety Protocol and the WTO SPS Agreement. The U.S. argues that Protocol should not be used in the WTO ruling because it is not mentioned in any of the SPS Agreement.  Thus, the answer to this question will depend on what the panel decides on how these relate to each other, if at all. 

The Protocol does not contain any specific provision to legitimizes a ban.  In fact, the Preamble of the Protocol “recognizes that modern biotechnology has great potential for human well-being if developed and used with adequate safety measures for the environment and human health.”  It also says that “trade and environment agreements should be mutually supportive to achieve sustainable development.”

The EU has approved a small number of product applications since the beginning of the case, does that not mean that the moratorium has ended?

No. The fact that the European Commission has approved a small number of product applications since this panel was established is no indication that the moratorium has ended because:

§     The vast majority of products remain stalled at various stages of the approval process.  It cannot be determined that a moratorium has ended until the EC’s approval procedures are fully operational and all applications are moving through those procedures to a final decision without undue delay.

§     Actions taken by the European Commission since the Panel was established are not relevant to its decision.  A WTO panel is generally competent to consider measures in existence at the time of its establishment.  The Panel’s obligation, therefore, is to render a decision on the EC’s measures as they existed on August 29, 2003.

Can individual countries put in place pre-marketing approval procedures for agricultural products?

Yes. The US, Canada and Argentina are not challenging the right of a Member to maintain pre-marketing approval procedures for agricultural products (indeed, all three Complainants have them).  Nor are the complainants challenging the EC’s underlying regulations.  Rather, the claims are based on the EC’s failure to implement those regulations and procedures in a WTO consistent manner, which has resulted in a violation of its WTO commitments.