European Union: World Trade Organisation - The WTO Panel on the EU´s Six Year de facto Moratorium on the Approval of GMOs

Last Updated: 29 June 2004
Article by Victoria Harris and Debra Hueting

On 19 May 2004 the European Commission authorised Syngenta's BT-11 sweetcorn, either canned or fresh, for human consumption (but not for release into the environment). This authorisation appears to mark the end of the 6-year de facto moratorium that had existed in the EU1. The Commission took the decision after the Council of Ministers (where the Member States are represented) failed to agree. The reaction of the Member States is, at the time of writing, unknown. The WTO panel is considering this six year de facto moratorium and the continuing national bans. It will proceed in the EU inspite of the Commission's decision.

In May 2003 Canada, the US and Argentina asked the EU to hold consultations at the WTO on the EU measures affecting the approval and marketing of biotech (non-pharmaceutical) products. Consultations failed and a WTO panel was set up in March 2004 to examine the de facto moratorium that has existed in the EU since 1998. The WTO panel is currently considering whether the EU's de facto moratorium on the approval of GMOs and GM products (resulting from the failure by Member States to progress authorisation dossiers) and EU Member States' national bans are inconsistent with WTO rules. The panel will continue in spite of the recent decision of the Commission. The panel is considering the 6-year period when the moratorium was in fact in place as well as measures affecting authorisations going forward. In normal circumstances the WTO GMO Moratorium Panel should issue its final report within six months of being set up, i.e. September 2004.

POSSIBLE CHALLENGE TO THE NEW EU RULES ON THE TRACEABILITY AND LABELLING OF GMOs

On a related matter, over twenty agriculture and agri-business groups have asked the US Trade Representative Robert Zoellick to challenge in the WTO the EU's new regulations on the traceability and labelling of genetically modified organisms. The new regulations were adopted in an attempt to kick-start the authorisation procedure, ending the moratorium (which appears to have been successful to some degree, at least, at EU level). The twenty-two associations argue that the traceability and labelling requirements violate two WTO agreements, that is, the Agreement on Technical Barriers to Trade ("TBT Agreement"), and the Agreement on Sanitary and Phytosanitary measures ("SPS Agreement").

The TBT Agreement mandates that countries' technical regulations and standards should not be more trade restrictive than necessary to achieve a "legitimate objective". Moreover, such regulations should not create unnecessary obstacles to trade.

The SPS Agreement provides that health measures should be based on sufficient scientific evidence and a risk assessment. The associations argue that the traceability rules are not based on scientific evidence as required in the SPS Agreement given that all the products to which the requirements would apply have been approved in the EU as safe.

As regards the TBT Agreement, they argue that the EU traceability requirements are a disguised restriction on trade in so far as food produced with GMOs must be traced in order for it to be labelled. Additionally, it is argued that the labelling requirements are more trade restrictive than necessary to provide information to consumers.

It is unlikely that, at the present time, another complaint on a closely related issue will be brought before the WTO, particularly in light of the Commission's recent action apparently bringing the EU level de facto moratorium to an end.

Footnote

1 Bt 11 Maize has been authorised in the EU in feed and in derived food products since 1998.

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