EC - Approval and Marketing of Biotech Products 2006 Case

26/10/2023, 13:29 WTO | dispute settlement - the disputes - DS291
DISPUTE SETTLEMENT
European Communities — Measures Affecting the

DS291:
Approval and Marketing of Biotech Products
Current status This summary has

been prepared by the
Secretariat under its
A Authorization to retaliate requested on 17 January 2008 g own responsibility. The
summary is for general
information only and is
not intended to affect
Key facts the rights and
obligations of
Short title: EC — Approval and Marketing of Biotech Members.
Products
See also:
Complainant: United States
A One-page summary
of key findings of
Respondent: European Communities
this dispute
Third Parties (original Argentina; Australia; Brazil; Canada; Chile; (https://www.wto.
proceedings): China; Chinese Taipei; Colombia; El org/english/tratop
Salvador; Honduras; Mexico; New Zealand; _e/dispu_e/cases_
Norway; Paraguay; Peru; Thailand; Uruguay e/1pagesum_e/ds2
91sum_e.pdf)
A News items about

this dispute
A The basics: how dis-
putes are settled in
WTO
(https://www.wto.o
rg/english/thewto_
e/whatis_e/tif_e/dis
p1_e.htm)
A Computer based
training on dispute
settlement
(https://www.wto.o
https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds291_e.htm 1/8
rg/english/tratop_e/
Agreements cited: Art. 4
dispu_e/disp_settle
(as cited in request for (https://www.wto.org/english/docs_e/legal_
ment_cbt_e/signin_
consultations) e/14-ag_01_e.htm#art4) , 4.2
e.htm)
(https://www.wto.org/english/docs_e/legal_
A Text of the Dispute
e/14-ag_01_e.htm#art4_2) Agriculture
Settlement
Art. I
Understanding
(https://www.wto.o
e/gatt47_01_e.htm#art1) , I:1
rg/english/docs_e/l
egal_e/legal_e.htm
e/gatt47_01_e.htm#art1_1) , III
(https://www.wto.org/english/docs_e/legal_ #dispute)
e/gatt47_01_e.htm#art3) , III:4 A #TradeDisputes
(https://www.wto.org/english/docs_e/legal_ (https://twitter.com
/hashtag/TradeDisp
e/gatt47_01_e.htm#art3_4) , X
(https://www.wto.org/english/docs_e/legal_ utes?src=hash)
e/gatt47_01_e.htm#art10) , X:1
e/gatt47_01_e.htm#art10_1) , XI
e/gatt47_01_e.htm#art11) , XI:1
e/gatt47_01_e.htm#art11_1) GATT 1994
Art. 2
e/15sps_01_e.htm#art2) , 2.2
e/15sps_01_e.htm#art2_2) , 2.3
e/15sps_01_e.htm#art2_3) , 5
e/15sps_01_e.htm#art5) , 5.1
e/15sps_01_e.htm#art5_1) , 5.2
e/15sps_01_e.htm#art5_2) , 5.5
e/15sps_01_e.htm#art5_5) , 5.6
e/15sps_01_e.htm#art5_6) , 7
e/15sps_01_e.htm#art7) , 8
e/15sps_01_e.htm#art8) , Annex B
e/gatt47_03_e.htm#annb) , Annex C
e/gatt47_03_e.htm#annc) Sanitary and
Phytosanitary Measures (SPS)
Art. 2
e/17-tbt_e.htm#art2) , 2.1
e/17-tbt_e.htm#art2_1) , 2.2
e/17-tbt_e.htm#art2_2) , 2.8
e/17-tbt_e.htm#art2_8) , 2.9
e/17-tbt_e.htm#art2_9) , 2.11
e/17-tbt_e.htm#art2_11) , 2.12
e/17-tbt_e.htm#art2_12) , 5
e/17-tbt_e.htm#art5) , 5.1
e/17-tbt_e.htm#art5_1) , 5.2
e/17-tbt_e.htm#art5_2) , 5.6
e/17-tbt_e.htm#art5_6) , 5.8
e/17-tbt_e.htm#art5_8) Technical Barriers
to Trade (TBT)
Agreements cited: Art. 2.2

(as cited in panel request) (https://www.wto.org/english/docs_e/legal_
e/15sps_01_e.htm#art2_2) , 2.3
e/15sps_01_e.htm#art2_3) , 5.1
e/15sps_01_e.htm#art5_1) , 5.2
e/15sps_01_e.htm#art5_2) , 5.5
e/15sps_01_e.htm#art5_5) , 5.6
e/15sps_01_e.htm#art5_6) , 7
e/15sps_01_e.htm#art7) , 8
e/15sps_01_e.htm#art8) , Annex B
e/15sps_02_e.htm#annb) , Annex C
e/15sps_02_e.htm#annc) Sanitary and
Phytosanitary Measures (SPS)
Art. I:1
e/gatt47_01_e.htm#art1_1) , III:4
e/gatt47_01_e.htm#art3_4) , X:1
e/gatt47_01_e.htm#art10_1) , XI:1
e/gatt47_01_e.htm#art11_1) GATT 1994
Art. 4.2
e/14-ag_01_e.htm#art4_2) Agriculture
Art. 2.1
e/17-tbt_e.htm#art2_1) , 2.2
e/17-tbt_e.htm#art2_2) , 2.8
e/17-tbt_e.htm#art2_8) , 2.9
e/17-tbt_e.htm#art2_9) , 2.11
e/17-tbt_e.htm#art2_11) , 2.12
e/17-tbt_e.htm#art2_12) , 5.1
e/17-tbt_e.htm#art5_1) , 5.2
e/17-tbt_e.htm#art5_2) , 5.6
e/17-tbt_e.htm#art5_6) , 5.8
e/17-tbt_e.htm#art5_8) Technical Barriers
to Trade (TBT)
Consultations requested: 13 May 2003
Panel requested: 7 August 2003
Panel established: 29 August 2003
Panel composed: 4 March 2004
Panel report circulated: 29 September 2006

(adopted on 21 November 2006 )
Latest document
A European Communities - Measures Affecting the Approval and Marketing of Biotech
Products - Status report by the European Union - Addendum
WT/DS291/37/Add.181 | 16 October 2023
View all documents

C
Summary of the dispute to date
The summary below was up-to-date at 24 February 2010 g
See also: One-page summary of key findings of this dispute
(https://www.wto.org/english/tratop_e/dispu_e/cases_e/1pagesum_e/ds291sum_e.pdf)
Consultations
Complaint by the United States. (See also DS292
(https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds292_e.htm) and DS293
(https://www.wto.org/english/tratop_e/dispu_e/cases_e/ds293_e.htm) )
On 13 May 2003, the United States requested consultations with the EC concerning certain
measures taken by the EC and its member States affecting imports of agricultural and food
imports from the United States. Regarding EC-level measures, the United States asserted that
the moratorium applied by the EC since October 1998 on the approval of biotech products
has restricted imports of agricultural and food products from the United States. Regarding
member State-level measures, the United States asserted that a number of EC member
States maintain national marketing and import bans on biotech products even though those
products have already been approved by the EC for import and marketing in the EC.
According to the United States, the measures at issue appeared to be inconsistent with the
EC’s obligations under:
A Articles 2, 5, 7 and 8, and Annexes B and C of the SPS Agreement;
A Articles I, III, X and XI of the GATT 1994;
A Article 4 of the Agriculture Agreement; and
A Articles 2 and 5 of the TBT Agreement.
Australia, Argentina, Brazil, Canada, Chile, Colombia, India, Mexico, New Zealand and Peru
requested to join the consultations, The EC informed the DSB that they had accepted the
requests of Australia, Argentina, Brazil, Canada, Chile, Colombia, India, Mexico, New Zealand
and Peru to join the consultations.
On 7 August 2003, the United States requested the establishment of a panel. At its meeting
on 18 August 2003, the DSB deferred the establishment of a panel.
Panel and Appellate Body proceedings

At its meeting on 29 August 2003, the DSB established a single panel to examine this dispute
and also disputes DS292 and DS293. Argentina, Australia, Brazil, Canada, Chile, China,
Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Chinese
Taipei, Thailand and Uruguay reserved their third-party rights.
On 23 February 2004, the United States, Canada and Argentina jointly requested the
Director-General to compose the panel. On 4 March 2004, the Director-General composed
the panel. On 12 July 2004, the Chairman of the panel informed the DSB that it would not be
able to complete its work in six months, due, inter alia, to the parties’ common request for
additional time to prepare their rebuttals. On 18 August 2004, the Chairman of the panel
informed the DSB that that the panel estimated that it would issue its final report to the
parties by the end of March 2005, and that the delay was due to the parties’ common
request for additional time to prepare their rebuttals as well as the panel’s decision to seek
scientific and technical expert advice pursuant to Article 11 of the Agreement on Sanitary and
Phytosanitary Measures and Article 13 of the DSU. On 2 November 2004, the Chairman of
the panel informed the DSB that as a result of the time taken to identify and select experts
and, more importantly, in view of a joint request by all four parties that they be granted
additional time to prepare their further submissions to the panel, it would not be possible for
the panel to issue its final report to the parties by the end of March 2005, and that the panel
estimated that it would issue its final report to the parties by the end of June 2005. On 13
June 2005, the panel informed the DSB that the panel estimated that it would issue its final
report to the parties by the end of October 2005. On 11 August 2005, the panel estimated
that it would issue its final report to the parties by the end of December 2005. On 21
December 2005, the Chairman of the panel informed the DSB that the panel required
additional time to prepare and finalize its report. The panel estimated that it would issue its
final report to the parties be the end of March 2006. On 30 March 2006, the Chairman of the
panel informed the DSB that it would not be possible to issue its final reports to the parties at
the end of March 2006 as the panel had yet to receive, in the second half of April, further
comments from the parties on its interim reports. The panel estimated that it would issue its
final reports to the parties by mid-May 2006and that the final reports would be circulated to
Members no later than the end of September 2006.
On 29 September 2006, the panel reports were circulated to Members. The panel found
that the European Communities applied a general de facto moratorium on the approval of
biotech products between June 1999 and August 2003, which is when the panel was
established. Before the panel, the European Communities had categorically denied the
existence of such a moratorium. The panel further found that, by applying this moratorium,
the European Communities had acted inconsistently with its obligations under Annex C(1)(a),
first clause, and Article 8 of the SPS Agreement because the de facto moratorium led to
undue delays in the completion of EC approval procedures. The panel, however, found that
the European Communities has not acted inconsistently with its obligations under other
provisions raised by the complaining parties, including Articles 5.1, 5.5, 5.6, 2.2 or 2.3 of the
SPS Agreement.
With regard to the product-specific EC measures, the panel found that the European
Communities had acted inconsistently with its obligations under Annex C(1)(a), first clause,
and Article 8 of the SPS Agreement in respect of the approval procedures concerning 24 out
of 27 biotech products identified by the complaining parties because there were undue
delays in the completion of the approval procedures for each of these products. The panel
found, however, that the European Communities had not acted inconsistently with its
obligations under any other provisions raised by the complaining parties, including Articles
5.1, 5.5 and 2.2 of the SPS Agreement , with regard to any of the products concerned.
With regard to the EC member State safeguard measures, the panel found that the European
Communities acted inconsistently with its obligations under Articles 5.1 and 2.2 of the SPS
Agreement with regard to all of the safeguard measures at issue, because these measures
were not based on risk assessments satisfying the definition of the SPS Agreement and hence
could be presumed to be maintained without sufficient scientific evidence.
At its meeting on 21 November 2006, the DSB adopted the panel reports.
Implementation of adopted reports

At the DSB meeting on 19 December 2006, the European Communities announced its
intention to implement the recommendations and rulings of the DSB in a manner consistent
with its WTO obligations. However, due to the complexity and sensitivity of the issues
involved, the European Communities would need a reasonable period of time for
implementation. Pursuant to Article 21.3(b) of the DSU, the European Communities was
ready to discuss an appropriate timeframe with Argentina, Canada and the United States.
On 21 June 2007, the United States and the European Communities notified the DSB that
they had agreed that the reasonable period of time for the European Communities to
implement the recommendations and rulings of the DSB shall be twelve months from the
date of the adoption of the panel reports. Accordingly, the reasonable period of time expired
on 21 November 2007. On 21 November 2007, the parties informed the DSB that they had
agreed to modify the reasonable period of time so as to expire on 11 January 2008.
On 14 January 2008, the European Communities and the United States informed the DSB
that they had reached an agreement on procedures under Articles 21 and 22 of the DSU.
Proceedings under Article 22 of the DSU (remedies)

On 17 January 2008, the United States requested authorization from the DSB to suspend
concessions and other obligations. On 6 February 2008, the European Communities
objected to the United States' request for authorization to suspend concessions and other
obligations and referred the matter to arbitration under Article 22.6 of the DSU. At its
meeting on 8 February 2008, the DSB agreed that the matter had been referred to arbitration
under Article 22.6 of the DSU. On 15 February 2008, the European Communities and the
United States requested the Arbitrator to suspend its work pursuant to their agreed
procedures under Articles 21 and 22 of the DSU. In accordance with the parties' joint request,
the Arbitrator suspended the arbitration proceedings from 18 February 2008 until the United
States requests their resumption under the circumstances agreed between the parties on 14
January 2008.
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id=G1)
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A General Agreement on Tariffs and Trade 1994
A Agreement on the Application of Sanitary and Phytosanitary Measures
A Agreement on Technical Barriers to Trade

EC - Approval and Marketing of Biotech Products 2006 Case

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26/10/2023, 13:29 WTO | dispute settlement - the disputes - DS291

European Communities — Measures Affecting the

Approval and Marketing of Biotech Products

Current status This summary has

A News items about

Agreements cited: Art. 2.2

Consultations requested: 13 May 2003

Panel requested: 7 August 2003

Panel established: 29 August 2003

Panel composed: 4 March 2004

Panel report circulated: 29 September 2006

View all documents

A Articles 2, 5, 7 and 8, and Annexes B and C of the SPS Agreement;

A Articles I, III, X and XI of the GATT 1994;

A Articles 2 and 5 of the TBT Agreement.

Panel and Appellate Body proceedings

Implementation of adopted reports

Proceedings under Article 22 of the DSU (remedies)

Follow this dispute

Send me email alerts

Other disputes involving:

A Agricultural and Food (https://www.wto.org/english/tratop_e/dispu_e/dispu_subjects_index_e.htm?

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