The US, Canada and Argentina are alleging that the European Communities (EC) has applied a 'moratorium' on approvals for the import and marketing of genetically modified (GM), or 'biotechnology', products without a scientific basis (see DS291, 292 and 293).
The US, Canada and Argentina have powerful industries wishing to export GM products to the EC and other WTO Members, including developing Members, so this is both a specific complaint against the EC, and a warning to other Members to consider wisely before preventing the import of GM products.
The US request for consultations complains that:
since 1998, the EC has applied a 'moratorium' on the approval of GM products by suspending consideration of approval of GM products, and that this has restricted US agricultural and food imports
individual EC countries maintain a number of domestic level import and marketing bans on GM products, despite EC level import and marketing approval for these products.
The US has made these complaints under four World Trade Organisation (WTO) Agreements: the Sanitary and Phytosanitary Measures Agreement, the Agriculture Agreement, the Technical Barriers to Trade Agreement and GATT 1994.
The EC has denied the existence of a 'moratorium' on GM approvals and, in a press release, stated that the requests were 'legally unwarranted, economically unfounded and politically unhelpful'.
Australia's request to participate in these consultations was accepted by the EC. The EC agreed, under Article 4.11 of the WTO Understanding on Dispute Settlement that, while Australia's agricultural and food imports into the EC are not affected by the EC's measures, Australia does have a 'substantial interest' in the consultations.
What is Australia's 'substantial interest'? Australia noted in its request that it is 'a significant producer and exporter of agricultural products'. Under Australia's Gene Technology Act 2000, the Gene Technology Regulator is responsible for issuing licences for GM products if any risks these products pose can be managed in such a way as to protect the health and safety of people and the environment. The Regulator has issued a licence for GM cotton and is considering issuing a licence for GM canola. The US would like to import GM cotton and canola into the EC, but does not have the EC's approval. Australia might also like to import GM cotton and canola into the EC.
More broadly, the request is part of Australia's trade policy, which aims to stop the EC protecting its agricultural industries by way of the Common Agricultural Policy and other measures.
However, as the EC pointed out in its acceptance of Australia's request:
'several Australian States (notably Tasmania and Western Australia) have enacted different types of "moratoria" on commercially-grown GM crops, and others [that is, other Australian States] are considering legislation with the same objective.'
These 'moratoria' reflect the strong domestic concern that exists in Australia about GM products. In New South Wales, the New South Wales Government has passed the Gene Technology (GM Crop Moratorium) Bill, which will ban the commercial production of certain GM products for human consumption for three years. The first ban will be on GM canola.
Australia's governments appear to be aware that this dispute might have significant implications for the WTO legality of their legislation on GM products. The Tasmanian Government lobbied for the Federal Government to think carefully before making the request. Meanwhile, the New South Wales Government appears to be resolute that any New South Wales bans will remain in place regardless of the outcome of this dispute.
More systemically, this dispute might have significant implications for the WTO legality of other Australian laws which rely essentially on Australia's interpretation of the WTO rules on science-based decision-making. The most obvious example is Australia's rigorous system of quarantine.
The content of this article does not constitute legal advice and should not be relied on in that way. Specific advice should be sought about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).