EC-Biotech Panel reportedly confirms most of the findings of its Interim Report
May 24, 2006
The World Trade Organization’s (WTO) Dispute Settlement Panel issued its final ruling on May 10th in the European Communities – Measures affecting the Approval and Marketing of Biotech Products (EC-Biotech) case. Reports indicate that while the Panel’s final ruling maintains most of its earlier findings, it differs in some respects from the interim report, which was issued on February 7, 2006.1 Despite these differences, the EC will be able to maintain its current legislation relating to GMOs.
Both the final ruling and the interim report were released only to the parties in the dispute. However, the interim report had been made available to the public by Friends of the Earth Europe, which obtained a leaked report. The Center for International Environmental Law (CIEL) provided the first in-depth legal analysis of this text with “EC-Biotech: Overview and Analysis of the Panel’s Interim Report“. This tendency towards secrecy and a closed-door approach is endemic to dispute settlement in the trade sector and has permitted the misrepresentation of the findings of the WTO Panel. The lack of transparency is particularly worrisome in cases where public health and the environment are at stake. As of this writing, the EC-Biotech final ruling is still officially secret.
In its final ruling, the Panel is reported to maintain its interim ruling that the EC applied a general de facto moratorium between 1999 and 2003. In the interim report, the Panel had concluded that the general de facto moratorium and product-specific measures affecting product approval had resulted in a failure to complete individual approval procedures without undue delay, and hence gave rise to an inconsistency with Article 8 and Annex C of the SPS Agreement.
Although the Panel maintained in its final ruling that the EC had applied a general de facto moratorium, the Panel, according to the WTO Reporter, “stepped back from its finding that the general moratorium in question had come to an end because the EU had granted market authorization to one of the GMO products in question.” The Panel, after being challenged from complaining parties, now indicates that “it is no longer able to determine whether the original moratorium had indeed come to an end with the GMO approval…” Although the Panel, in the interim report, did not make recommendations that the EC should come into conformity with
the SPS Agreement because it found that the subsequent approval of biotech products by the EC had ended the general de facto moratorium, in the final ruling, it declared that “the EU should bring its measures in line with its SPS obligations if and to the extent that moratorium has not ceased to exist.”
As in its interim report, the Panel in the final ruling also maintains that the measures taken by some EC member States restricting the import, use, and marketing of certain biotech products – safeguard measures taken in relation to products already approved at the EC level – failed to meet science-related requirements of the SPS Agreement.
Interestingly, the WTO Panel’s final ruling was apparently accompanied by a letter, which was issued by the Panel to parties in the dispute. The letter was a response to public statements made by the parties regarding the panel’s findings in the interim report, in which the Panel “expressed concerns that some of the statements made by the parties could have been misconstrued…”
The change from the interim report to the final ruling is unusual in that most WTO Dispute panels have maintained their interim findings and recommendations. Overall, however, the legal reasoning has likely remained the same, and the EC will be able to maintain its current legislationrelating to GMOs.