The WTO Panel on the EC-Biotech Dispute Releases Its Final Report
On September 29, 2006, the World Trade Organization (WTO) panel on the EC-Biotech dispute finally issued its official report, three years after the panel had been established. On August 7, 2003 three exporters of agricultural and food products containing genetically modified organisms (GMOs), i.e., the United States (WT/DS291), Canada (WT/DS292), and Argentina (WT/DS293), filed complaints under the WTO dispute settlement mechanism against the EC's alleged moratorium on the approval of GMOs during the period of October 1998 to August 2003, as well as against some of the EC Member states' national ban on GMOs and GM foods. On February 8, 2006, the panel issued an interim report in which it produced two main findings.
First, the panel in its interim report recognized the existence of such moratoria - a general one as well as product-specific ones - and held that the moratoria resulted in "undue delay" in the EC's GMOs approval procedure, violating Article 8 and Annex C of the WTO Agreement on Sanitary and Phytosanitary Measures (SPS). Second, the panel struck down national bans (safeguards) established by certain EC Member states on certain EC-approved GMOs on the ground that these states failed to conduct risk assessments and thus violated SPS Article 5.1. The panel found that the sufficiency of available scientific evidence, such as earlier conclusions rendered by relevant EC scientific committees, precluded these Member states from invoking provisional measures (national bans or safeguards) under SPS Article 5.7 without having conducted a risk assessment under Article 5.1.
The findings in the final panel report unsurprisingly parallel the February interim report, except for a critical change in the panel's position on remedies (recommendations), which will be discussed below. All in all, the panel report raises many interesting legal questions which have not been fully addressed and thus remain controversial.
Major Legal Issues
The Legal Nature of a General De Facto Moratorium
The panel, siding with the complainants, construed the EC's suspension of its approval procedure on GMOs from October 1998 to August 2003 as a general "de facto" moratorium, while it did not address the WTO-legality of the EC's approval legislation itself since this issue was not raised by complainants. Interestingly, however, the panel refused to acknowledge such a moratorium as a "measure" under the SPS Agreement, but nonetheless said that the moratorium "affected the operation and application of the EC approval procedures," which resulted in "undue delay" under the procedures and therefore violated Article 8 and Annex C of the SPS Agreement.
However, this moratorium might be regarded as just a procedural outcome, or an application, of the relevant EC approval legislation which the panel did deem an SPS measure. In other words, the moratorium might not be fully detached from the relevant EC approval legislation and treated separately. According to this interpretation, the panel could have ruled that the moratorium did constitute an SPS measure. To construe the moratorium as an SPS measure would have led the panel to decide whether the moratorium violated substantive, not merely procedural, obligations under the SPS Agreement, such as Article 5.1 (Risk Assessment). By finding that the moratorium was not an SPS measure in and of itself, the panel avoided this burdensome task and simply held that the EC has not acted inconsistently as to Article 5.1.
The EC claimed that even if there was a moratorium between June 1999 to August 2003, this case was "moot" if the moratorium "ceased to exist" after the establishment of the panel. The EC submitted that under these circumstances the panel should not rule on the moratorium. The panel rejected the EC's mootness claim. Relying on GATT/WTO jurisprudence, the panel viewed that it "had the authority" to rule on a measure within its terms of reference even if the measure subsequently ceased to exist.
Nonetheless, the panel might have ruled that the case was moot. In fact, the panel itself noted that two biotech products were approved in 2004 after the panel was established in August 2003. These new developments might have terminated the "across-the-board" moratorium which the complainants claimed existed.
In the interim report, the panel had originally rendered no recommendation as to the EC's general moratorium in accordance with the WTO jurisprudence under which a panel refrains from making a recommendation regarding a WTO-inconsistent measure if such measure is no longer in force after the establishment of the panel. However, in the final report the panel accepted the complainants' request and rendered a "qualified" recommendation that the EC should bring the general moratorium into conformity with relevant WTO obligations "if, and to the extent that" it still exists.
The panel justified such a conditional remedy by observing that due to its murky and complex nature the moratorium might be re-imposed in the future; thus, deciding this issue here and now would "secure a positive solution" to this dispute. Yet, one might speculate that under this logic, decisions could always be rendered on measures no longer in force, since all violations could potentially be reintroduced in the future.
Legal Relationship between the WTO Rules and Other Rules of International Law
The EC attempted to justify some Members states' national bans on GMOs under the "precautionary principle" provided in the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity (the "Biosafety Protocol"). The United States, however, rejected any application of non-WTO agreements to this WTO dispute. The U.S. highlighted that the Biosafety Protocol should not be applied to this dispute since it is not a party to the Protocol.
The panel treated this linkage question as an issue of treaty interpretation. It first acknowledged that Article 31.3(c) of the Vienna Convention on the Law of Treaties mandated the panel to "take into account" any relevant rules of international law only if these rules are "applicable" to parties concerned. The panel held that the Biosafety Protocol would not be applicable in this case since none of the complainants was a party to the Protocol. Therefore, the panel concluded that it was not required to consider the Protocol. As to the broad question whether the precautionary principle belongs to general principles of law, the panel noted that it need not address such a "complex" and "unsettled" issue in this specific dispute.
The panel report will be adopted as it stands within 60 days after its circulation, unless a party appeals. No party has expressed its intent to appeal, and the losing party, the EC, might not have a strong reason to do so. The EC observed that since it resumed the approval of GMOs in 2004, the panel's recommendations based on the old situation would have no practical impact to the EU.
In an unusually harsh tone, the panel problematized the leak of its confidential interim rulings to the public, warning that such leak "could damage the integrity of the WTO dispute settlement system as a whole." While parties concerned denied any involvement in the breaches of confidentiality and condemned these breaches, the panel emphasized that "these statements cannot easily be reconciled with the fact that these leaks did occur." The panel also found it "surprising and disturbing" that two non-governmental organizations (the Institute for Agriculture and Trade Policy and Friends of the Earth), whose amicus curiae briefs the panel accepted, disclosed the confidential report on their websites. In response, the Friends of the Earth reportedly stated that it "acted in the public interest."
Finally, the panel report did not rule on the general safety of GMOs or on the general legality of the EC approval procedure. Its report mainly concerns narrow procedural issues, such as "undue delay." Yet, the panel spent three years and produced a 1000-page report plus yet another 1000 pages of Annexes. One might question whether using the WTO dispute settlement system over this type of dispute was really "fruitful."
Sungjoon Cho, an ASIL member, is an Assistant Professor of Law at Chicago-Kent College of Law, Illinois Institute of Technology. During the period of 1994-96, he represented the government of South Korea in negotiations under the World Trade Organization and the Organization for Economic Cooperation and Development. He is the author of Free Markets and Social Regulation: A Reform Agenda of the Global Trading System (Kluwer Law International, 2003), and The Law of the World Trade Organization through the Cases (2006) (with Joseph H. H. Weiler), http://www.jeanmonnetprogram.org/wto/Units/index.html.
 European Communities - Measures Affecting the Approval and Marketing of Biotech Products, WT/DS291, WT/DS292, WT/DS293, Panel Report circulated on Sep. 29, 2006, http://www.wto.org/english/news_e/news06_e/291r_e.htm [hereinafter Panel Report]. The WTO Secretariat divided the panel report into eight Parts: Part I (pp 1-108, covering I. Introduction, II. Factual Aspects, III. Complaining Parties' Requests for Findings and Recommendations, and IV. Arguments of Parties); Part II (pp 109-247, covering IV. Arguments of Parties and V. Arguments of Third Parties); Part III (pp 248-342, covering VI. Interim Review and VII. Findings [A. Procedural Issues and General Matters]); Part IV (pp 343-423, covering VII. Findings [B. Overview of Measures at Issue and C. Relevant EC Approval Procedures]); Part V (pp 424-691, covering VII. Findings [D. General EC Moratorium]); Part VI (pp 692-866, covering VII. Findings [D. General EC Moratorium and E. Product-Specific Measures]); Part VII (pp 867-1066, covering VII. Findings [E. Product-Specific Measures and F. EC Member State Safeguard Measures]); Part VIII (pp 1067-1087, covering VIII. Conclusions and Recommendations).
 See WTO Panel Provisionally Rules against EU Moratorium on Biotech Approvals, Bridges Weekly Trade News Digest, vol. 10, No. 4, Feb. 8, 2006 [hereinafter WTO Panel Provisionally Rules]; Daniel WÃ¼ger, Biotech Products WTO Panel Report, ASIL Insights, vol. 10, issue 5, Mar. 8, 2006, http://www.asil.org/insights/2006/03/insights060308.html.
 Panel Report, supra note 1, para. 8.3.
 Id., para. 8.6
 Id., para. 8.14 (d).
 Id., paras.7.1286, 7.1297.
 Id., paras. 7.1306-7.1308.
 Id., paras. 7.1303, 7.1305
 Id., para. 7.1304.
 Panel Report, supra note 1, para. 6.74.
 Id., para. 7.1314.
 Id., para.6.79.
 Id., para. 7.1317.
 Id., paras. 7.1310-7.1311
 Id., paras. 7.53-7.55.
 Id., para. 7.56
 Id., para. 7.58
 Id., paras. 7.69-7.71.
 Id., para. 7.75.
 Id., para. 7.89.
 WTO Understanding on Rules and Procedures Governing the Settlement of Disputes, art. 16:4.
 See WTO Panel Provisionally Rules, supra note 2.
 Panel Report, supra note 1, para. 6.185.
 Id., para. 6.195.
 Id., para. 6.196.
 WTO: Biotech Panel Largely Confirms Interim Findings against EU, Bridges Weekly Trade News Digest, vol. 10, No. 32, Oct. 4, 2006.
 WTO DSU, supra note 23, art. 3.7 ("Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful.").