Brussels, 06/02/2006 (Agence Europe) - On 7 February, the WTO panel will publish an historic interim report on the complaint lodged in May 2003 by the United States, Canada and Argentina contesting EU decision making on authorising the marketing of GMOs. Historic because of its length and complexity, though maybe less so in its effects, because the awaited verdict (case WT/DS291) will deal with the situation in May 2003 - the non-implementation of the Community legislative framework on the marketing of GMOs in the EU - a situation which no longer obtains.
The moratorium was lifted in May 2004, the date of entry into effect of the new regulatory framework adopted by the EU to strengthen marketing authorisation rules for GMOs in order to limit risks to public health and the environment (Directive 2001/18/EC, abrogating Directive 90/220/EEC), and to guarantee traceability and labelling of GMOs in order to ensure no harmful effects from the farm to the table (regulations 1829/2003/EC and 1830/EC on labelling and traceability of genetically modified, or GMO-derived, foodstuffs and animal feeds). Several GMOs have since received the green light to be legally marketed in the EU, with the last authorisations granted in January.
At the time of the complaint, the de facto moratorium in the EU on all new authorisations of GMOs notified by Directive 90/220/EEC (on the voluntary dissemination of GMOs in the environment establishing the procedures for authorisation of the marketing of GMOs) and the lack of action on the part of the Commission to have the eight safeguard clauses, to which Member States had recourse, lifted. Some twenty products whose authorisation procedures were pending were caught in the moratorium.
The group charged with resolving this problem at the WTO will, in several thousand pages of legal and factual arguments, decide on the validity of the complaint, but not on the EU regulatory framework which the Americans do not question (EU authorisation procedures are not the point at issue in the complaint), nor on the assessment of the commercial prejudice suffered by the plaintiffs. In other words, the WTO will say whether or not the procedures in place at the time in the EU were properly applied.
Whatever the WTO decision, it will have no effect on current EU regulation on GMOs, because the controversy relates exclusively to the past application of the Community regulatory framework. Its effects should therefore be limited. Last June, at the Environment Council, the Commission asked EU Member States to repeal their safeguard measures. While the Council of the EU did not move in the desired direction, the Commission's actions weakened the initial reasons for the complaint over the European executive's wait-and-see attitude. The WTO interim report should not influence the EU's internal decision-making process on Member States' safeguard clauses. A Community decision on this is due to be taken independently of the WTO. For this, the Commission is awaiting the scientific opinion, expected for mid-February, of the European Food Safety Authority (EFSA) on the scientific justification of these measures. This will allow amended proposals, that are scientifically based, to be put to the Council.
The WTO interim report is only one stage in a timescale which threatens to go beyond 2006. Its publication will herald a minimum two-month long period when the parties will be able to make comment. The panel's final decision will be given in April and presented to the members of the WTO for adoption. The possibility of an appeal should not be excluded, certainly beyond the traditional three months allowed for “classic” appeals, given the complexity of the dossier.