EU DECIDES NOT TO APPEAL WTO BIOTECH RULING

The European Commission has decided not to appeal the WTO panel ruling against the EU's application of its approval procedures (see Bridges Trade BioRes, 6 October 2006), letting the 28 November deadline for lodging an appeal elapse. Several civil society groups have sharply criticised Brussels' decision, voicing concerns that some of the panel's conclusions could undermine other bodies of international law.

While several EU member states -- among them countries such as France, Austria, Luxembourg and Greece whose national-level bans were judged to violate WTO rules -- had called on the Commission to appeal the ruling, they failed to garner support of a critical mass of member states. No specific procedures exist within the EU to determine whether to launch an appeal; in practice, the decision has traditionally been taken by the Commission, which usually consults the membership but does not put the decision to a vote.

Sources speculated that the Commission's decision had been influenced by weighing up the likelihood of fundamental improvements in the ruling -- expected to be low in this case -- vis-à-vis the risk of obtaining a less favourable ruling. Among the possible risks, a new ruling could result in a stricter definition of a de facto (or unwritten) measure which could limit the EU's scope for challenging other countries' de facto measures in the future.

The EU will now need to negotiate a timeframe for implementing the ruling with the complainants (commonly within 16 months or less).

Following the release of the dispute panel's report in September, GeneWatch, the Royal Society for the Protection of Birds (RSPB), the Forum for Biotechnology and Food Security and the GM Freeze campaign had urged EU Trade Commissioner Peter Mandelson to appeal the ruling, pointing to "serious errors" in its interpretation of trade law. Specifically, the groups warned that the ruling could undermine the precautionary principle, because the panel concluded that it was not obliged to take other international treaties into account if not all parties to the dispute were also parties to these treaties. "The precautionary principle is a key element of national environment and health policy and should not be dispensed with by the WTO," said Alex Gonzalez-Calatayud, Trade Policy Officer of the RSPB.

Their sentiments were echoed by Greenpeace, which fears that the ruling could lead to the further fragmentation of international law. "Governments must take urgent action to restrict the power of the WTO, so it cannot be used to undermine environmental laws," said Trade Policy Advisor Daniel Mittler. In a letter addressed to WTO Director-General Pascal Lamy, Greenpeace called for environmental disputes to be removed from the global trade body "as the WTO is not equipped to deal with such cases effectively".

The legal analyses released by the civil society groups as well as other documents related to the dispute are available on the ICTSD website.

ICTSD reporting.