For all we know, the GMO panel faulted the EC on two grounds. First, EC approval procedures have been subject to “undue delay” (Annex C.1(a)). Second, safeguard restrictions imposed by certain EC member states against GMOs that were approved at the EC level, are not based on a risk assessment (5.1), nor provisionally justified (5.7) and, consequently, not based on scientific principles and maintained without sufficient scientific evidence (2.2.).
Looked at purely from the power perspective of the EC Commission, one might be inclined to declare victory. First, the panel agreed with the EC that the moratorium ended in 2003 and, as a result, declined to make a recommendation in this respect. Second, as to the safeguards by Austria, France and others, all the panel did was call upon EC member states to step in line with … EC policy. What else could the EC Commission have wished for? Is Mandelson’s statement that this case is “largely of historical interest”, and the reaction by Greenpeace that the panel ruling is “irrelevant”, a prelude to the EC not appealing this case? After all, the risk of an Appellate Body confirming the panel (and thereby elevating its weight to de facto precedent) might well outweigh the on-the-ground benefits of an (unlikely) reversal on appeal. Was not a similar trade-off made in high profile cases such as Kodak-Fuji and Section 301?
That said, the pressure from EC member states is most likely to push the EC Commission to appeal anyhow. And, indeed, when it comes to the safeguards there is something distinctly fishy about the panel’s ruling.
What the panel is essentially saying is that since the EC was able to make a risk assessment, EC member states can no longer claim that there is insufficient scientific evidence. Hence, they cannot impose provisional measures under 5.7. As the EC and its member states do, after all, remain distinct sovereigns and distinct WTO members, this amounts to saying that because one WTO member (say, the US) was able to make a risk assessment, any other WTO member can no longer invoke 5.7. Imagine what this would mean for the EC or, even more so, for developing countries?
The panel’s ruling in this respect raises a crucial question on the relation between 2.2, 5.1 and 5.7. Is 5.7 really tied to 5.1 (in the sense that as soon as a risk assessment is feasible, provisional measures can no longer be enacted), or is the better view that 5.7 is tied to 2.2 (even if a risk assessment is possible for some, for others who have an extremely high level of protection, available scientific evidence may still be “insufficient” so that provisional measures can be in order)?
In Hormones (para. 124), the AB linked sufficiency of evidence to one’s level of protection and precaution (thereby implicitly linking 2.2 to 5.7). In Agricultural Products (para. 80), as well, the AB stated that 5.7 is a “qualified exemption” from 2.2 (not 5.1). However, in Apples (para. 179) the AB did link 5.7 to 5.1, finding -- as the GMO panel did here -- that once a risk assessment is possible, provisional measures under 5.7 become unavailable. In that case, the AB explicitly rejected Japan’s reference – much like that by EC member states in GMOs -- to remaining “scientific uncertainty”. Relatedly, in Salmon (para. 138), the AB did link risk assessment to sufficiency of evidence by finding that a violation of 5.1 necessarily implies a violation also of 2.2.
There is, in other words, a clear tension between Hormones and Agricultural Products, on the one hand, and Apples and Salmon, on the other. Yet, I see three possible ways to distinguish GMOs from Apples.
First, in Apples we were talking about one WTO member (Japan); in GMOs, we have the EC and its member states (a risk assessment by the former may, therefore, not necessarily preclude provisional measures by the latter; the ongoing panel on EC – Customs may shed more light on the relation between the EC and its member states). Second, the importance of the alleged risks is different: Apples was ‘only’ about preventing fire blight in fruit; GMOs is, according to the EC, about a more vital question of human life (hence, scientific uncertainty under 5.7, even with a risk assessment available, may play a greater role in GMOs than in Apples, see Hormones, para. 124). Third, in Apples, the only concern was plant life or health (a concern fully covered in Japan’s studies); in GMOs, in contrast, there are also environmental and moral concerns at play which may not be fully covered in the EC risk assessment. These additional concerns fall arguably even outside the SPS agreement altogether, raising the separate question of whether, for example, GATT Art. XX(a) on public morals (as indirectly interpreted in Gambling) might justify the safeguards. SPS does, of course, prevail over GATT in the event of conflict (Ad Note), but if one is really talking about entirely distinct justifications for a certain conduct, can there still be conflict, or are we then talking about two distinct measures so that one valid justification (under GATT) could save the safeguard even if another justification (under SPS) cannot?
I would, therefore, consider it wise for the EC to appeal the panel ruling on GMOs, a ruling which is – from the perspective of EC member states – far from “purely historical” or “irrelevant”.