The initial stages of the dispute, where the countries involved make their case to the three person Dispute Panel, have now been completed. The USA, Canada and Argentina (the Complainants), have made their initial written submissions and Europe has responded. > read the submissions.
An oral hearing was conducted and the oral statements made by USA and Europe are now available. The parties have also filed their rebuttals. > read the oral statements.
Also see GeneWatch's background to the dispute
The Dispute Panel has now decided that it will require scientific advice in making its decision about the US challenge. The USA, Canada and Argentina had argued that there is no need for scientific advice and that the dispute was about procedural matters. Europe argued that in a complex matter which relates to the risks of GMOs, the Dispute Panel has to take wider advice. The Panel's decision on this point indicates that they see strength in the European case.
Now a scientific advisory panel is to be appointed, this will delay the process for many months. There will be arguments about which advisors are appropriate and, following agreement, time needed for their advice to be sought. It is unlikely that a decision will be made before spring 2005 at the earliest.
This update outlines the case being made by the Complainants and how Europe has responded.
The Complainants' case
The complaining countries argue that:
- The 'suspension' and 'failure' by the EU to consider applications for approval of GM products (the 'de facto moratorium') and the national bans in Austria, France, Germany, Greece, Italy and Luxembourg on some GM products which had already been approved in European Union before October 1998, have adversely affected imports of agricultural and food products from the US, Argentina and Canada.
- The de facto moratorium and national bans violate the WTO rules because they have not been scientifically justified, they were not published and there has been 'undue delay' in assessing applications for release and marketing.
- The European Union delays have hindered development of GM technology, which is of proven safety and brings great benefits, including in reducing hunger and improving health and crop productivity worldwide.
- Canada has also argued that GM products should be treated no differently from non-GM products.
The Complainants present these as procedural matters, not ones which are the subject of scientific disagreement on the nature or scale of the risks. In their oral presentation, the USA argued that Europe was trying to obscure this procedural failure by pretending it does not exist and that even if Europe began to approve some GM crops now, this would not alter their case.
Para 13: In short, the EC's brief presents a cloud of information unrelated to the merits of this dispute, apparently with the hope that it might somehow justify EC measures that the EC claims don't in fact exist. This type of argumentation mirrors the EC measures themselves. The EC's biotech moratorium, like the EC submission in support of the moratorium, is nontransparent and based on vague and shifting rationales. [emphasis added]
Para 32: "the United States would like to make very clear that when and if Bt-11 sweet corn is finally allowed to be sold in the EC, the approval will have no effect on our request that this Panel find that the EC adopted a general moratorium on approvals of biotech products and that this moratorium is inconsistent with the EC's WTO obligations." To be clear, the United States would not view an approval of Bt-11 as a lifting of the EC?s moratorium or as an indication that the EU will begin to meet its WTO obligations by making decisions on all other pending applications without undue delay. [emphasis added]
Europe's response
Paragraph 12 of Europe's initial submission to the WTO's Dispute Panel, gives a summary of the basis of its case which includes that:
- GMOs have characteristics which are recognised by the international Community to pose potential threats to human health and the environment, and they cannot be treated as "like" or "equivalent to" their non-GMO counterparts;
- in addressing the potential risks for each of these GMOs the Community regulatory framework has operated on a case-by-case basis, and there has been no formal (de jure) or informal (de facto) moratorium in respect of the authorisation process or any part of it;
- the approach of the European Communities to the identification, assessment and prevention of risks to human health and the environment from each of these GMOs has been fully consistent with international standards, and any finding to the contrary would seriously undermine a prudent and precautionary approach;
- the steps which have been taken to protect the environment and to conserve biodiversity are reasonable and legitimate, are not necessarily sanitary or phytosanitary in character, and fall in whole or in part outside the scope of the SPS Agreement;
- there has been no undue delay and in any event such steps are provisionally justified on the basis of the insufficiency of scientific evidence [emphasis added].
In their oral presentation, Europe made the following additional comments emphasising that the case is fundamentally about whether countries should be able to establish their own levels of protection from the risks of GMOs, that these risks are complex and serious, and that the outcome of the case will be of enormous significance worldwide.
Para 6: Despite the Complainants' occasional attempts to suggest the contrary, this case is not about protectionism, nor is it about discrimination. This is, in the view of the European Communities, a case about regulators? choices of the appropriate level of protection of public health and the environment in the face of scientific complexity and uncertainty and in respect of which there is great public interest. It is a case essentially about time. The time allowed to a prudent government to set up and apply a process for effective risk assessment of products which are novel for its territory and ecosystems, and that have the potential of causing irreversible harm to public health and the environment. [emphasis added]
Para 15: - the consequences of the introduction of GMOs into the open environment, intentionally or unintentionally, can - so says the science - be highly variable between different ecosystems and thus between, or even within, countries as regards their potential impacts on the environment at large (including the agricultural environment). As the brief by the "amicus coalition" points out, these risks are GMO- and site specific. [emphasis added]
Para 63: In conclusion, the Panel has been called upon to decide what the reasonable attitude of a prudent government should be faced with scientific complexity and uncertainty of a kind and on a scale unique and unprecedented in the history of trade in agricultural products. It is an important and delicate task and it will have consequences far beyond this case. GMOs are not an issue which is confined to the WTO and the close attention of states, other international organisations, civil society, industry and others, rests on the work of this Panel. [emphasis added]