UK: Agribio: Moratorium, What Moratorium? US Launches WTO Challenge to EU Policy on GM Crops

Last Updated: 22 May 2003

On May 13 the US launched its much-awaited WTO action against the EU1. The Commission (on behalf of EU Member States) must now respond to the requests for consultations and then hold the first of the consultations within 30 days of the date of the complaint. Should the consultation procedure not produce a result within 60 days then the complainants (currently the US, Argentina, Canada and Egypt) can request that the WTO establishes a dispute panel and rules on the dispute.

The Complaint

The complaint centres on the 5-year moratorium that has existed within the EU concerning the approval of GM crops. Robert Zoellick, the US Trade Representative, said that "The EU’s persistent resistance to abiding by its WTO obligations has perpetuated a trade barrier unwarranted by the EC’s own scientific analysis, which impedes the global use of a technology that could be of great benefit to farmers and consumers around the world."

Lyle Vanclief, the Canadian Agriculture and Agri-Food Minister, claims that during the five years that the moratorium on approving GM crops has been in place in the EU, the Canadian canola export market to the EU has shrunk from $185million to $1.5million. During this period US exports in maize and soya to the EU have also reduced significantly.

The EU’s Response

The Commission have responded with a rebuttal document2 setting out why they consider the action taken by the US and others is misguided and unnecessary. Margaret Wallstrom, EU Commissioner for the Environment, commented that the US action would make the debate within Europe more difficult and distract the EU from putting into place the legislative framework which would give European consumers confidence in GMO-based products.

The Commission does not present any scientific evidence for the case against approving GM crops for release in the EU. Instead, it rejects the existence of such a moratorium, claiming that approvals of GM products have merely been delayed whilst an appropriate regulatory framework was put into place3 and a number of approvals are now being processed with several of these applications at "an advanced stage of examination".

The document briefly addresses some of the issues raised by the complainants. It claims that the EU has switched its maize importation from the US to Argentina and its soya importation from the US to Brazil simply because these South American countries grow EU approved varieties of such crops.

As predicted in our briefing paper on 31 January this year4, The Commission argues that the correct way to approach the development of a regulatory framework is via the Cartagena Protocol on Biosafety. It suggests that the US has a vested interest in as loose a regulation of international trade as possible. The Commission rejects this approach, arguing that following the Cartagena Protocol provides the most effective way to protect consumers by enacting reasoned and balanced regulations to control and monitor the use of GMOs in contracting states.

The document also expresses dismay that the US has allegedly used the issue of Food Aid to try to put pressure on the EU to permit the importation of GM maize. The Commission rejects this, stating that developing country governments have the legitimate right to fix their level of protection and to take the decision they deem appropriate to safeguard their country from unintentional dissemination of GM crops.

Reaction to the Complaint

EuropaBio (the European Association for Bioindustries) has expressed hope that the dispute between the EU and the US can be resolved amicably. It believes in permitting both farmers and consumers to have the right to choose what crops they want to grow and what products they want to buy5. The organisation considers that the 5-year delay in approval of GM technology in the EU is affecting the choices that developing countries are making in terms of agricultural policy and food security.

The UK government has expressed disappointment that the complaint has been filed6. DEFRA states that the UK is neither pro-GM nor anti-GM, rather it is pro-consumer safety and choice and protection of the environment.

Conclusion

It appears as though the Commission is not going to fight the US driven complaint on the grounds of scientific data that justifies the alleged moratorium on GM crops. It remains to be seen if the current operation of EC Directive 2001/18 and the "imminent approvals" mentioned by the Commission will be sufficient to satisfy the WTO that the US complaint is groundless and that the EU has an effective approvals process in place for GM crops. Of particular interest will be the Commission’s attempts to argue that no moratorium on approving GM crops exists when several past Commission statements have made clear reference to such a "de facto" or "effective" moratorium.

1. http://www.ustr.gov/new/biotech-consultation_request.pdf
2. DN: IP/03/681, 13 May 2003
3. i.e. Directive 2001/18 concerning the deliberate release of GMOs into the environment, adopted in March 2001 and in force from October 2002
4.
http://www.mondaq.com/distribution/clients/herbertsmith/article.asp?articleid=19712
5. EuropaBio Press Statement 13 May 2003
6. DEFRA news release, 174/03

Herbert Smith leads the way with a multi-disciplinary agribio practice involving not only intellectual property, biotech, life sciences, but also regulatory, environmental and public law (judicial review) expertise. The team is led by partners Mark Shillito and Joel Smith.

Herbert Smith’s Agribio team aims to produce regular updates on legal, regulatory and commercial developments in the plant breeding, seeds and plant biotechnology sector. For those interested, these are available by clicking here.

Article by Joel Smith, Gareth Morgan and Lode Van Den Hende

© Herbert Smith 2003

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

For more information on this or other Herbert Smith publications, please email us.

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