Résumé
The Panel report in EC-Biotech, for the time being, puts an end to one of the most complex cases in the history of WTO dispute settlement. The analysis at hand covers the issues relevant beyond the realms of biotechnology, namely the impact of non-WTO rules of public international law on the interpretation of WTO law. the scope of the SPS Agreement, the categories "undue delay" and "insufficient scientific evidence" in connection with precautionary measures, and product-origin as a criterion for the national-treatment obligation. On the one hand, some of the criticism raised against the Panel report turns out to be unjustified. It is, on the other hand, a deficiency of the Panel report that some parts of it do not foster legal clarity.
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Extrait
Beyond Biosafety - an Analysis of the Ec-Biotech Panel Report
1 Introduction
In several respects, the report of the Panel in EC-Biotech1 can be considered a milestone in WTO dispute settlement history.Politically speaking, it is undoubtedly one of the disputes attracting the highest degree of attention by the public, not only in Europe. To some extent this might be due to the role played by non-governmental organisations in discussions about biotechnology and genetically modified organisms (GMOs) in general, and in this WTO dispute in particular.2Secondly, the Panel proceedings and report required extraordinary resources, compared to other disputes. From the establishment of the Panel on August 29, 2003 and its composition by the Director-General on March 4, 2004 until the issuance of the final report on September 29,2006, it took much longer than the periods envisaged by the Dispute Settlement Understanding. Not to mention the tremendous volume of the final report amounting to more than 1000 pages.Thirdly and for our review most importantly, the Panel report covers a number of issues with a huge systemic importance for WTO law. Numerous assessments of the consistency of EC trade restrictions for GMOs with WTO requirements existed already prior to EC-Biotech (see: HOWSE and MAVROIDIS 2000, STÔKL 2003, BURCHARDI 2001, MACMILLAN and BLAKENEY 2001). Compared to the broad scope of those evaluations, the measures at stake in EC-Biotech were limited. Three categories of EC measures were challenged by the US, Canada and Argentina and led the Panel to the following conclusions:* According to the Panel, the EC applied a de facto moratorium between June 1999 and August 2003 meaning that because of the moratorium no approvals were granted for the placing on the market of a GMO. This resulted in "undue delay" in terms of Annex C(l)(a), first clause, and Article 8 of the SPS Agreement.* The complainants had singled out 27 specific approval-dossiers concerned by the moratorium. The Panel ruled that among these productspecific measures, 24 caused "undue delay".* Austria, France, Germany, Greece, Italy and Luxembourg had taken measures to restrict in their respective territories the placing on the market of certain GMOs subsequent to their approval at the EC level. The Panel found these EC Member State safeguard measures to be in breach of Article 5.1 and Article 2.2 and also inconsistent with Article 5.7 of the SPS Agreement.These findings of the Panel will be further illustrated below. In order to reach its conclusions, the Panel had to address questions systemically important for WTO law. Since, to the surprise of many3, neither the EC nor the complainants appealed the Panel report, they may be even more important for future disputes. Our focus will be on the following horizontal issues:* impact of the UN Biosafety Protocol and other non-WTO treaties on the interpretation of the WTO Agreements,* scope of the SPS Agreement,* "un...Voir le contenu complet de ce document
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