WTO LAW AND ENVIRONMENTAL PROTECTION IN THE EU – THE CASE OF GMOs

1. WTO LAW AND ENVIRONMENTAL PROTECTION IN THE EU – THE CASE OF GMOs

2. OVERVIEW • WTO LAW AND EU LAW – AN OVERVIEW OF TWO TRADE LIBERATING REGIMES • WTO LAW AND ENVIRONMENTAL PROTECTION • THE CASE OF GMOs • EU’s LEGAL FRAMEWORK FOR GMOs • CONFLICTS WITH WTO LAW

3. WTO LAW AND EU LAW – AN OVERVIEW

4. BACKGROUND Similar historical backgrounds: • General Agreement on Tariff and Trade (GATT, 1947) • European Economic Community (EEC) • Born during the WWII period • Promoting trade liberalisationby restricting states to adopt protectionist measures

5. WHY SIGN UP TO TRADE LIBERALISATION? • Trade liberalisation seen to help raise the standard of living • States would like to be protectionistbut accept world-widefreetrade as betterthanlosingother markets • Global freetradewithretaliationmechanisms • Trustworthinessattracts investment

6. OBJECTIVES EU • Closely integrated regional entity • ‘peoples of Europe’ • Through the creation and maintenance of the internal market • Based on a legal and constitutional framework with an elaborate institutional structure WTO • Focus on macro-economic objectives • Pursuing ‘substantial reduction of tariffs and other barriers to commerce’ • Not only border-based measures but also ‘unnecessary’ or ‘unreasonable’ national trade restrictions (Dassonville type of rationale) • Lack of institutions and ambitions to become a global governance structure • Appellate Body (permanent court), dispute settlement system

7. CONSTITUTIONAL DISTINCTIONS (P Holmes) • Interestingparallelsexistbut EU and WTO arefundamentally different: • Democraticdecifit (exists in the EU, butmore so in WTO) • WTO lacks rulesaboutrules • WTO: no politicallyaccountablebody (treatynegotiated by diplomats) • Uneveness in negotiations (USA, Japan, EU)

8. WHY IS WTO LAW RELEVANT?

9. EU is a Member of the WTO • (regional trade unions allowed as parties) EU is a Member • Thus, WTO law is binding on EU law • EU risk regulation exists is in part shaped by WTO law • Exclusive and shared competence • Implications: • Consistent interpretation of WTO law • No direct effect (state-focused) (Eeckhout) • Precludes judicial review of EU Law – except ‘implementing measures’

10. Legal Culture • Co-production: internal market, environmentalprotection, and WTO law • Case C-366/10 Air Association • WTO highlighting the needto ’useof the world’sresources in accordancewith the objectiveofsustainabledevelopment’

11. WTO LAW AND ENVIRONMENTAL PROTECTION

12. WTO: GENESIS • Post WWII – the body of international economic law born • Creation of GATT (General Agreement on Tariffs and Trade) 1947 • Uruguay Round 1994 – WTO creation • ‘The most important global agreement since the UN Charter’

13. EVER DEVELOPING December 2013: firstevertrade reform deal signed • 12 yearsofnegotiations • 159 memberssigned – need MS approval • Targets: • Reduce red tape • reducecorruption • Speed up port clearance • Reduceagricultural subsidies • Better market access for at leastdevelopingcountries

14. WTO – A BRIEF OVERVIEW • Three Key Features: • Binding body of law (annexes) • WTO Agreement has legal primacy • Dispute Settlement System • Institutional Structure • Ministerial Conference, General Council and Secretariat • Dispute Settlement Body (DSB) – Appellate Body

15. WTO – SCOPE WTO shall provide: ‘the common institutional framework for the conduct of trade in relations among its Members’ on matters relating to the agreements and associated legal instruments as set out in the Annexes to this agreement.’

16. WTO – OBJECTIVES (Preamble) Relations of WTO Members: ‘should be conducted with a view to raising standards of living, ensuring full employment, and a large and steadily growing volume of real income and effective demand…expanding the production of and trade in goods and services’

17. POSSIBLE BARRIERS TO TRADE • Possible barriers: • Tariffs and non-tariff measures • Border and domestic measures • Market access and market regulation barriers • Three ground rules: • The most favoured nation principle (Art. I GATT) • The principle of national treatment (Art. III GATT) • The prohibition of quantitative restrictions (Art XI GATT) • NB: applied only to state-measures

18. DISPUTE SETTLEMENT UNDERSTANDING • Each Member shall ensure the conformity of its laws, regulations and administrative procedures with its WTO-obligations • Informal procedures • conciliation and mediation • Implications: • Confirm to WTO rules (normally within ca 15 months) • Or, agree on mutally acceptable compensation • Or, seek authorisation for countermeasures • Formal procedures • Panels, the Appellate Body, and arbitration

19. EXCEPTIONS TO LIBERALISED TRADE Two cumulative requirements: • One of the Article XX GATTs exceptions • (b) measures protecting human, animal or plant life or health • (g) measures relating to the ‘conservation of exhaustible natural resources’ • and satisfy the Chapeau • No arbitrary or unjustifiable discrimination between countries where the same conditions prevails • No disguised restriction of international trade

20. ENVIRONMENTAL PROTECTION AS ILLUSTRATED IN THE CASE LAW • Tuna-Dolphin case (1991, GATT complaint) • Biotechnology dispute (1997) • Shrimps case I (1998), II (2001) • Unilateral measures only allowed in ‘good faith’ (stewardship for the environment) • Production and not only product-related measures can be justified

21. WTO COMMITTEE ON TRADE AND ENVIRONMENT • WTO is not an environmental protection agency • WTO provides for environmental measures • Supports non-discriminatory policy coordination • Works toward market access to reach sustainable development in developing countries • Criticism (Perez): ‘merchantilist ethos’ • Market access • Ecological benefits in terms of trade liberty

22. THE CASE OF GMOs

23. What’s in a GMO? …’the genetic material of an organism is altered by useof a methodthatdoes not occur in nature…The aimof GM is oftentointroduce a new or alteredcharcateristicto the targeted organism’

24. GMOs DEBATE IN THE EU

25. GMOs – A Rainbow ofinterests • Feeding the world, improving farming, • Improve health: e.g. reduce cholesterol, add vitamins etc. • Biotechnology – the next wave of knowledge-based economy • Ethic view: Playing god, what kind of world are we creating (clones humans etc.) • Safety concerns: precautionary principle, distinguishing animal feed and human feed, over-resistance to bacteria, unintended consequences, loss of organic farming? • Anti-globalisation • Divide: Greece, Austria, France, Poland v UK, Netherlands, Spain, Denmark Fisher (2011): this concerns administrative constitutionalism

27. GMOs – A Rainbow ofComplexities Different typeof risk regulation (van Asselt and Vos, 2008) Risks in the contextof GMOs are not quantified – theyare potential, ’uncertain’

28. GMO REGULATION IN THE EU • Breakdown of legislation: • Polly the sheep • Mad cow disease • 1998-2004 (no authorisation period) • Different objectives: • Dissimilar views: MS v MS / MS v Commission • Protection of environment, consumer, integrated internal market • Transnational objective (WTO, EU, national law etc)

29. GMO REGULATION IN THE EU • Directive 2001/18 Deliberate Release Directive of GMOs into the environment (i.e. cultivation) • Directive 2008/27 (amending 2001/18) • REQUIRES AUTHORISATION • 1829/2003 Food and Feed Regulation • REQUIRES AUTHORISATION • 1830/2003 Traceability and Labelling Regulation

30. AuthorisationProcedure: PHASE 1 Submittingan application • An application for authorisingfood or feedconsistingof or made from a GMO must be submittedtoauthorities in a Member State, incl. • showingthat the GM food is not dangeroustohealth or the environment • Suggestions for productlabelling • An applicationmayinclude a proposal for post-market monitoring. • The federal agencies forward the applicationalongto the EuropeanFoodSafetyAuthority(EFSA, Parma)

31. AuthorisationProcedure: PHASE 2 EFSA publishes an opinion • This is a scientificevaluation from a panel of experts on geneticengineering • If approving a product, it must be shownthat all measureshavebeen taken toprevent negative effects on human and animal health and the environment. MemberStates must be consulted.

32. AuthorisationProcedure: PHASE 3 Final Decision • AfterreceivingEFSA’sopinion, the Commission has 3 monthstoissue a draft decision, which it submitsto the "StandingCommittee on the FoodChain and Animal Health”, consistingof rep. from all MS. • If it’s draft is different from EFSA’sopinion, writtenjustification is required • The Committeemayapprove or reject the Commission’s draft with a qualifiedmajority • If it rejectsCommission’sdraft, or if a decision withqualifiedmajoritycannot be reached, the Commission must takeits position tothe Council of Ministers and inform the Parliament. • Council has 90 daystoapprove or toreject the draft for a decision with a qualifiedmajority. • If the Council rejects the Commission’s draft, the Commission must reviseits draft. • If the Council approves the Commission’s draft, or if the Council cannotreach a qualifiedmajority, the Commission’s draft for a decision comesintoeffect

33. IN EFFECT • Authorisation by default • Commission strong role and voice • Reg 182/2011/ EU – changesthis • EFSA’srolequestionable and the useof science • Whatrole for law? Communication only? • Whatrole for expertise?

34. LOOKING AHEAD In mid-2010, the Commission proposed new rules for the authorisationof GMOs. If adopted, EU countrieswill be abletorestrict or ban GMO cultivation on theirterritory. Theywill be abletouseanyacceptable reason under the Treatywithoutundermining the EU risk assessmentwhichremainsunchanged • NB onlywithregardtocultivation

35. GMOs IN THE EU AND THE WTO • Real challenge: EU v US in particular • WTO has challenged three issues re EU: • No authorisation period • Failure to take decision on certain products • National protective measures

36. Challenges (ahead) • Different frameworks • Is cornflakes cornflakes? • Agricultural biotechnology = natural extension of conventional practice or major human intervention in nature? • Citizen voices and WTO (democracy v government obligations under international law) • Hormones case (1998) • ‘responsible and representative governments may act in good faith on the basis of what, at a given time, may be divergent opinion from qualified and respected sources’ • Ie political as well as technical complexities in GMO regulation