The report, which ran to over 2000 pages and had already been distributed to the parties in May, strongly rebuked the civil society groups that had leaked the interim report earlier in the year, deploring their behaviour as "unacceptable."

US government officials and farm groups welcomed the panel's ruling. US Trade Representative Susan Schwab described it as favouring "science-based policy-making over the unjustified, anti-biotech policies adopted in the EU." Brussels appeared nonchalant about the ruling, suggesting that it would have little in the way of actual implications for its current rules and procedures.

Several civil society groups sharply criticised the decision for undermining international environmental law.

Panel requests EU to bring measures in line with WTO rules

The panel assessed three issues for their compliance with WTO rules: (1) the EU's alleged general moratorium on biotech approvals, (2) its failure to approve a number of specific biotech products (referred to as 'product-specific measures'), and (3) national-level bans in several EU member states on the marketing and import of specific biotech products which had already been approved at the EU-wide level.

The panel concluded that general and product-specific moratoria had led to an "undue delay" in the completion of the EU's approval procedures for biotech products, thus breaching Brussels' obligations under the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS).

In the only significant departure from its interim report, the panel requested the EU to bring the moratoria in line with the provisions of the SPS Agreement "if, and to the extent that" these measures have "not already ceased to exist." The interim ruling had refrained from making any recommendations for future action, arguing that the moratoria -- as they existed in August 2003 when the panel was established -- had ended. The panel's earlier ruling had also specified that it had not attempted to assess whether any amended or new moratoria were now in place. The US insists that the moratoria continue to exist in the shape of "unjustified, politically-motivated delays" in the processing of applications.

The panel rejected the EU's defence of the national-level bans as precautionary measures, arguing that sufficient scientific evidence was in fact available to carry out an adequate risk assessment. Article 5.7 of the SPS Agreement permits WTO Members to provisionally adopt SPS measures in the absence of sufficient evidence. The report called on the EU to bring the measures in conformity with WTO rules. This would imply revoking the national-level bans or providing an SPS Agreement-compliant risk assessment justifying the measures.

Mutual criticism from the panel and civil society groups

In a strongly worded statement, the panel sharply criticised the civil society groups that had leaked the interim report, specifically naming Friends of the Earth Europe (FOEE) and the Institute for Agriculture and Trade Policy (IATP). It warned that these breaches of confidentiality threatened to "damage the integrity of the WTO dispute settlement system as a whole." The panel also noted that it had accepted the amicus curiae ('friends of the court') briefs that both organisations had submitted in the case. "In the light of this, it is surprising and disturbing that the same NGOs... found it appropriate to disclose, on their own website, interim findings and conclusions of the Panel which were clearly designated as confidential."

In response to the panel's criticism, FOEE noted the panel decision had in fact not taken any points raised by NGOs into consideration, highlighting again "how the WTO treats the general public with disdain." "If the WTO, as a bare minimum, made itself more transparent, democratic and open, then there would be no need for documents to be leaked and published unofficially," said Adrian Bebb, FOEE's GMO campaigner. "Friends of the Earth acted in the public interest and would not hesitate to do it again," he added.

Greenpeace, FOEE and IATP criticised the panel's ruling for undermining the Cartagena Protocol on Biosafety and the precautionary approach. In particular, they attacked the panel's conclusion that it was not obliged to take into account the Protocol or the Convention on Biological Diversity since not all the parties to the dispute were also parties to these agreements. The panel had stressed, however, that it did have the option of taking other treaties into account -- as the Appellate Body did in the famous 'shrimp-turtle' case when it referred to international agreements that the US had not signed in support of Washington's own argument for restricting trade. In the present dispute, however, the panel concluded it was not "necessary or appropriate" to rely on other treaties to interpret the WTO agreements at issue.

"The WTO is the wrong forum to deal with environmental trade disputes and the international community must find an alternative before another case occurs," said Sonja Meister from FOEE. Greenpeace accused the panel of 'missing the point' after failing to consider relevant environmental rules, accusing the WTO of taking "international environmental law backwards by failing to support the precautionary approach."

It remains unclear whether any of the parties to the dispute will challenge the ruling. The parties have 60 days to lodge an appeal.

Additional resources

The final ruling and other documents related to the dispute.

ICTSD reporting; "US Trade Representative Susan Schwab and US Agriculture Secretary Mike Johanns announce favourable ruling in WTO case on agricultural biotechnology," US TRADE REPRESENTATIVE PRESS RELEASE, 29 September 2006; "WTO undermines right to act with precaution," GREENPEACE, 29 September 2006; "No winners, only losers in biotech trade war", FRIENDS OF THE EARTH EUROPE, 29 September 2006.