On 13 May 2003, the United States requested consultations with the EC concerning certain measures taken by the EC and its member States affecting imports of agricultural and food imports from the United States. Regarding EC-level measures, the United States asserted that the moratorium applied by the EC since October 1998 on the approval of biotech products has restricted imports of agricultural and food products from the United States. Regarding member State-level measures, the United States asserted that a number of EC member States maintain national marketing and import bans on biotech products even though those products have already been approved by the EC for import and marketing in the EC.
The Panel found that a general de facto moratorium on approvals of biotech products was in effect on the date of panel establishment. It was general in that it applied to all applications for approval pending in August 2003 under the relevant EC legislation, and de facto because it had not been formally adopted. Approvals were prevented through actions/omissions by a group of five EC member States and/or the European Commission.
The Panel found that the EC decision to apply a general moratorium was a decision concerning the application/operation of approval procedures, i.e., a procedural decision to delay final substantive approval decisions. It was not applied for achieving the EC level of sanitary or phytosanitary protection and, hence, was not an “SPS measure”.
According to the Panel, the record did not indicate that there was insufficient evidence to conduct a risk assessment within the meaning of Art. 5.1 and Annex A(4) for the biotech products subject to safeguard measures. As a result, Arts. 5.1 and 2.2 were applicable. In this regard, the Panel found that none of the safeguard measures at issue were based on a risk assessment as required under Art. 5.1 and defined in Annex A(4). By maintaining measures contrary to Art. 5.1, the European Communities had, by implication, also acted inconsistently with Art. 2.2.