GMOs and Trade: Issues at Stake in the EC Biotech Dispute

However, several developinq countries have also expressed tt1eir con•• cerns, in particular with reqard to the socio-economic consequences of the development of biotechnoloqy in the field of aqricultum.See 'La Chine engage une epreuve de force avec les E:tats••Unis sur l'importation de soja genetiquement modifie' et 'Les petits pays reticents aux OGM subissent de fortes pressions de Washington', Le Monde (Tuesday, 15 January 2002), at 4. See f~equest to Join Consultations, Communication from Chile, WTIDS291/11 (13 June 2003), at 1:.. The United States dmllenges the moratorium on the approval of biotech products applied by the E:uropean Communities since October 1998 and the marketing and import bans on such products maintained by some of its Member States.De facto import bans rnean that substantial trade interest cannot be defined on the basis of trade volume, only on future expectations.Chile also has a substantial systemic interest in the propror implementation of the WTO Agreements, in particular tile General Agreement on Tariffs and Trade 1994, the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures.The improper application of the disciplines of these A(:Jreements has trade implications for a country such as Chile.Finally, the direction taken by this dispute will prove significant for developing countries which, like Chile, are studying and evaluating national biotechnology policies.including renulations on the import, rnarl<eting, US(J, label inn and traceability of Genetically Modified Orqanisms (GMOs) and food containinq GMOs'.modified soybean oiF This complaint was resolved through consultations between Egypt and Thailand.'I'his was followed in August 200:3, when the USA decided to request the establishment of a WTO dispute-settlement panel to determine the compatibility of the so-called European de facto moratorium on GMOs with WTO rules.: 1 'I'he actual dispute began in May 200:3 when the USA, Argentina• 1 and Canacla 5 ' Egypt••-Import Prohibition on Canned Tuna with Soybean Oil, Re•• quest for Consultations by Thailand, WTIDS20511 (27 September 2000). 3 In this article, we will not focus on the question of whether the so-called moratorium is a measure or a simple practice.We will base our analysis on the presumption that the de facto moratorium is a measure that can be brought under dispute in the WTO.In addition, due to the uncertain character of the E:uropean moratorium, the article will not deal with the issue of the so-called moratorium beinq a 'technical regui<Jtion' or not under the Technical Barriers to Trade Agreement. 4 European Communities --Measures Affecting the Approval and Marketing of Biotech Products.Request for Consultations by Argon• tin a, WT/DS293!1 (21 May 2003), at 1: 'As a rJiobal producer and exporter of biotechnology products, for Argentina the systemic and trade implications of the aforementioned measures constitute a clear nullification or impairment of its rights under the WTO Anreements.Since 1998, the European Communities has suspended consideration of applications for approval of biotechnoloqy products.In addition, some of their rnernber States have introducEJd prohibitions, even infringing Community rules for biotechnology products.In effect, Argentina indicates that the action by the European Communities is detrimental to international trade in biotechnology products, as can be seen from the following: (a) de facto measures leading to the suspension of consideration or the nonconsideration of various applications without sufficient scientific evidence or a proper risk assessment; and (b) undue delay in finalizing consideration of various applications for approval of biotechnology products submitted by various WTO Members.This action affects biotechnology products approved for marketin() in Argentina .. " European Communities --Measures Affecting the Approval and Marketing of Biotech Products, Request for Consultations by Canada, WTIDS29211 (21 May 2003), at 1: 'As a result of measures taken by EC Member States, including Austria, Belgium, Denmark, Finland, France, Germany, Greeco, Italy, l_uxembourg, the Nether•• lands, and Sweden, since 1998, the E:C has maintained a de facto moratorium on the approval of GM products.The moratorium prevents GM products from accessin9 or proceeding through the E:C's approvals process.As a consequence of the moratorium, Canadian GM products have been blocked at various stages of the EC's approval process.In addition, some EC Mernber States, including Austria.France.Greece, and Italy have prohibited the importation and rnarkf.lling of Gi\11 products despite those products having been approved by the EC for importation and marketing'.'" Thailand •----F?estrictions on Importation of and Internal Taxes on Cigarettes.r"eport of the

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