STC Number - 396

EU proposal to amend Regulation (EC) No. 1829/2003 to allow EU member States to restrict or prohibit the use of genetically modified food and feed

Maintained by: European Union
Raised by: Argentina; Paraguay; United States of America
Supported by: Brazil; Canada; Uruguay
First date raised: July 2015 G/SPS/R/79, paras. 3.19-3.23
Dates subsequently raised: October 2015 (G/SPS/R/81, paras. 3.38-3.41)
March 2016 (G/SPS/R/82, paras. 3.61-3.63)
Number of times subsequently raised: 2
Relevant documents: G/TBT/N/EU/284
Products covered:
Primary subject keyword: Food safety
Keywords: Animal health; Control, Inspection and Approval Procedures; Food safety; Genetically modified organisms (GMOs); Human health; Sufficiency of scientific evidence; Technical Barriers to Trade (TBT); Transparency
Status: Not reported
Solution:
Date reported as resolved:

Extracts from SPS Committee meeting summary reports

In July 2015, Argentina raised concerns about this amendment, notified in G/TBT/N/EU/284, which would allow EU member States to restrict or prohibit the use of genetically modified food and feed approved at EU level. Currently, member States had the right to restrict or prohibit imports of such products when there was scientific proof that they represented a risk for health or for the environment. The new EU proposal would allow member States to ban or restrict the use of these products without requiring scientific evidence. In the past, the European Union and its member States had attempted to justify restrictions on use of GMOs for scientific reasons, without success. This new proposal could be considered as an alternative way to reach the same objective. The measure would enable EU member States to create unnecessary barriers to international trade. It would also introduce unpredictability in commodity trade, and would affect the single market and the free movement of goods in the European Union. Argentina therefore invited the European Union to reconsider this draft amendment and to implement the current EU legislation on authorization and approval of GMOs in the entire European Union in accordance with multilateral rules.

Paraguay shared Argentina's concerns with respect to the EU proposal, which could have an effect on products used for several years and which had not had any adverse effect on human and animal health or on the environment. The amendment would allow member States to take measures not be based on scientific evidence, which would therefore not comply with the SPS Agreement. The European Union was a major trading partner for Paraguay and Argentina, and the proposal was of great concern for their producers. Paraguay therefore asked the European Union to reconsider the amendment of the regulation.

The United States also shared the concern, raising procedural questions, since the EU proposal had only been notified to the TBT Committee, but should also have been notified to the SPS Committee in accordance with Article 7 and Annex B of the SPS Agreement, and the SPS Committee's Recommended Transparency Procedures contained in G/SPS/7/Rev.3. The amendment related to Regulation (EC) No. 1829/2003 that was an SPS measure because it governed the health and safety approvals of biotech products. This measure had been notified to the SPS Committee in G/SPS/N/EEC/149, with several addenda and corrigenda. The United States also expressed substantive concerns regarding the amendment's potential adverse effects on trade, including unfair competition, regulatory uncertainty, increased costs, and damages to integrated supply chains. The proposal could lead to a proliferation of arbitrary and discriminatory measures and to a lack of clarity and certainty. Finally, the United States recalled the EC-Biotech (2006) dispute, in which the DSB had found that nine EU member State bans of biotech products approved at the EU level were inconsistent with the European Union's obligations under the SPS Agreement. Yet some EU member States had maintained such bans, and adopted new ones. The United States urged the European Union not to adopt the proposal.

Brazil, Canada and Uruguay also shared this concern, emphasizing the measure's potential negative effect on trade and seeking additional information.

The European Union explained that the proposal was not an SPS measure. It had no relation to the protection of life or health, since restrictions linked to health risks or to the environment were excluded. As a consequence, the measure did not fall under the scope of the SPS Agreement. The European Commission would report the comments received from the WTO Members to its co-legislators. The European Union indicated that it had complied with its transparency obligations by notifying the legislation, which clearly indicated that member States could not invoke the risks to health or life to impose a ban or a restriction on GMOs.

In October 2015, Argentina again raised concerns about this amendment, notified in G/TBT/N/EU/284, which would allow EU member States to restrict or prohibit the use of genetically modified food and feed approved at EU level. Currently, member States had the right to restrict or prohibit imports of such products when there was scientific proof that they represented a risk for health or for the environment. The new EU proposal would allow EU member States to ban or restrict the use of these products without requiring scientific evidence. In the past, the European Union and its member States had attempted to justify restrictions on use of GMOs for scientific reasons, without success. This new proposal could be considered as an alternative way to reach the same objective. The measure would enable EU member States to create unnecessary barriers to international trade. It would also introduce unpredictability in commodity trade, and would affect the single market and the free movement of goods in the European Union. In this regard, Argentina recalled a recent statement by the Committee on Agriculture of the European Parliament stating that this measure should be compatible with the international obligations of the European Union in the WTO and Article 34 of the Treaty on the Functioning of the European Union (TFEU), which prohibits quantitative restrictions on exports between EU member States and all measures having equivalent effect. Argentina requested the European Union to withdraw the draft amendment and implement the current EU legislation on authorization and approval of GMOs throughout the entire European Union in accordance with multilateral rules.

The United States shared Argentina's concerns and requested clarifications on the status of the proposal within the relevant EU bodies. The United States reported that on 3 September 2015 the European Parliament's Agriculture and Rural Development Committee (ComAgri) rejected the European Commission's proposed national 'opt out' system for genetically engineered imports. ComAgri also urged the Parliament's Environment, Public Health, and Food Safety Committee (ComEnvi) to reject the proposal. The United States requested more information on the review procedure of ComEnvi as well as about the status of an impact statement and legal opinion to be developed by the European Commission on the behest of the European Parliament. The United States appreciated the EU efforts to keep the SPS Committee apprised of actions related to its regulations on approvals of genetically engineered products, including with respect to Commission withdrawal of its current proposal and any subsequent actions, such as consideration of alternative proposals that the Commission may or may not undertake. Finally, the United States recalled the EC-Biotech (2006) dispute, in which the DSB had found that nine EU member State bans of biotech products approved at the EU level were inconsistent with the European Union's obligations under the SPS Agreement. Yet some EU member States had maintained such bans, and adopted new ones. The United States urged the European Union not to adopt the proposal.
Brazil, Canada, Paraguay and Uruguay also shared this concern, emphasizing the measure's potential negative effect on trade and seeking additional information.

The European Union explained that the proposal was not an SPS measure. It had no relation to the protection of life or health, since restrictions linked to health risks or to the environment were excluded. As a consequence, the measure did not fall under the scope of the SPS Agreement and therefore it had been notified under the TBT Agreement. The European Commission would reply to the comments received from WTO Members via the TBT channels. The European Union indicated that it had complied with its transparency obligations by notifying the legislation, which clearly indicated that EU member States could not invoke considerations linked to risks to health or protection of the environment as justification to impose a ban or a restriction on GMOs approved at the EU-level.

In March 2016, Argentina raised concerns over the draft legislation notified on 20 May 2015 as G/TBT/N/EU/284, which aimed to amend the current system of authorization of GMOs provided under Regulation (EC) 1829/2003, in order to allow member States to restrict or prohibit the use of GM food and feed in all or part of their territory, even if a favourable opinion had been granted by the European Food Safety Agency. Argentina requested the European Union to withdraw the draft amendment and implement the current EU legislation on authorization and approval of GMOs throughout the entire European Union in accordance with multilateral rules.

Canada recalled that it had raised concerns over this proposal in past SPS and TBT Committee meetings. In August 2015, Canada had submitted comments in response to the EU TBT notification, and had received a response. Canada continued to believe that any EU member State measure taken under this proposal could have the potential to disrupt trade and introduce uncertainty. Canada noted the recent opinion of the Legal Service of the European Council that the proposal was unlikely to be found consistent with the European Union's internal market rules or its WTO commitments. Canada requested information on the European Union's plan for the future. Canada would monitor the issue closely.

The European Union explained that the proposal had no relation to the protection of life or health of humans, animals or plants. As a consequence, the measure did not fall under the scope of the SPS Agreement and therefore had been notified under the TBT Agreement. Several comments had been received from WTO Members and replies had been sent to these comments via the TBT channels. The European Union also mentioned that the proposal was currently under discussion at the Council of Ministers and the legislative process was on-going.