The implementation of the adopted Reports proves that this dispute is far from easy to resolve.
At its meeting on 21 November 2006, the DSB adopted the Panel’s Reports. None of the parties appealed against the ruling.206 Despite civil society efforts to appeal
the ruling, the European Commission did not appeal the Panel’s Ruling against the EU’s application of its approval procedures. It considered that much of the Panel Report had become theoretical because its approvals regime had been functioning normally and some 10 GM products had been authorized since the Panel’s establishment.207
In general, the illegal measure must, in all cases, be removed within 15 months of the decision. If the losing party does not act in compliance with the decision of the dispute resolution process, other countries may withdraw trade concessions and
205 Agreement under Article 21.3(b) DSU.
206 See Arts 16(1), 16(4), and 17(4) DSU. Appeal on the ruling should be filed within 60 days of
receiving the final Report of the Panel. The appeal has to be based on points of law only. See also, Understanding the WTO: Settling Disputes, http://www.wto.org/english/thewto_e /whatis_e/tif_e/disp1_e.htm. accessed 4October 2008.
207 Minutes of the meeting of the WTO dispute Settlement body of 21 November 2006,
61 impose retaliatory tariffs under the authorization of a DSB. The possibility of retaliation may also be arbitrated through the DSB. If there is a disagreement on the implementation of the conclusion, the parties may resort to the original DSB Panel, which will examine the consistency of the implementation of the measures. If the Panel finds the losing party has indeed conformed to its decision then the process is completed. If they find that the losing party has not implemented the measure in full, retaliatory tariffs and withdrawal trade concession may take place as described above.208
At the DSB meeting on 19 December 2006, the EU announced its intention to implement the recommendations and rulings of the DSB in a manner consistent with its WTO obligations. However, due to the complexity and sensitivity of the issues involved, the EU would need a reasonable period of time for implementation. Pursuant to Article 21.3(b) of the DSU, the EU was ready to discuss an appropriate timeframe with Argentina, Canada and the United States.209
On 21 June 2007, the US, the EU, Canada and Argentina respectively notified the DSB that they had agreed that the reasonable period of time for the EU to implement the recommendations and rulings of the DSB shall be twelve months from the date of the adoption of the Panel’s Reports. Accordingly, the reasonable period of time should have expired on 21 November 2007. All the parties agreed to modify the reasonable period of time so as to expire on 14 January 2008.
At the same time, the European Commission took action against Member States. For example, it referred France to the Court of Justice of the European Union because of its failure to adopt an EU law governing laboratory and research use
208 Implementation Report by loosing party should be submitted within reasonable period of time
(Art. 21.3 DSU). In case of non-implementation, parties negotiate compensation pending full implementation (Art. 22.2 DSU). If no agreement on compensation. DSB authorises retaliation pending full implementation (Art 22 DSU). See also, WTO-Understanding the WTO: Settling Disputes. available at http://www.wto.org/english/thewto_e/whatis_e/tif_e/disp1_e.htm.
209 Biotech, Summary of the dispute to date, http://www.wto.org/english/tratop_e/ds291_e.htm.
62 of genetically modified microorganisms. The EU is particularly concerned about the country's failure to design emergency plans to deal with an inadvertent release of such organisms, and asked the Court to impose a fine of 168,800 Euros (US $204,200) per day until such legislation is enacted.210 The referral was the second
time the EU had taken action against France for not updating its biotechnology regulations to conform to EU requirements.211
This deadline for implementation was never met. The EU, Canada, and Argentina agreed on another extension for a ‘reasonable period of time’ to implement the recommendations and rulings of the DSB. This date was extended a few more times. Eventually, the EU and Canada reached a settlement to implement the recommendations and rulings of the DSB in July 2009. The settlement set a framework for annual bilateral dialogue on ‘Biotech Market Access Issues of mutual interests’.212 A similar settlement was reached with Argentina. This
settlement established bilateral dialogue on ‘issues related to the application of biotechnology to agriculture’. The dialogue has EU authorities meet with their Argentinean counterparts to discuss agricultural biotechnology and trade issues of mutual interest, such as the authorization processes of GM products of mutual interest, measures related to biotechnology which may affect trade, evaluation of the economic and trade outlook of future GM product approvals, and the renewal of GM product authorizations. 213 The EU insists that the dialogue will not influence
any decisions made on biotech policy in Brussels. Rather, it says the dialogue is expected to act as an exchange of information on contentious biotech issues in an attempt to avoid any unnecessary trade obstacles. 214
210 ‘France chided for Tardiness in GM Legislation’, (2006), 25 Biotechnology L. Report, 292. 211 See chapter 3 for more on the difficulties facing the EU in balancing the complex internal
multilevel decision making with their external obligations under WTO.
212 Notification of a Mutually Agreed Solution, Biotech WT/DS292/40 (17 July 2009). 213 Notification of a Mutually Agreed Solution, Biotech, WT/DS293/41 (23 March 2010).
214 ‘EU, Argentina End Seven-Year WTO Biotech Row’, 10(5) Bridges Trade BioRes 19 March
63 Canada, Argentina, and the US have been meeting regularly with the European Commission to discuss biotech-related issues since the adoption of the WTO Panel Report in 2006. While discussions with Canada and Argentina have been fruitful, the US remains a hold out.215 On 14 January 2008, the EU and the US informed the
DSB that they had reached an agreement on procedures under Articles 21 and 22 of the DSU with respect to dispute WT/DS291. On 17 January 2008, the United States requested authorization from the DSB to suspend concessions and other obligations with respect to dispute WT/DS291. On 6 February 2008, the EU objected to the United States' request for authorization to suspend concessions and other obligations and referred the matter to arbitration under Article 22.6 of the DSU. At its meeting on 8 February 2008, the DSB agreed that the matter had been referred to arbitration under Article 22.6 of the DSU. On 15 February 2008, the EU and the United States requested the Arbitrator to suspend its work pursuant to their agreed procedures under Articles 21 and 22 of the DSU. In accordance with the parties' joint request, the Arbitrator suspended the arbitration.
To conclude, the EU is still showing resistance to implementing the full recommendations of the Panel. It is very similar to its resistance to implement the recommendations in EC Hormones. The ruling of EC Hormones did not force the EU to remove its prohibition on meat from Canada and the US containing hormones. Instead it adopted a new directive reaffirming the prohibition and issued a new request at the WTO to end the retaliatory measures by Canada and the US.216
In spite of this, the EU keeps expressing its will to engage in constructive discussions with the US.217
215 Document WT/DS293/41; EU; Argentina End Seven-Year WTO Biotech Row, 10(5) Bridges
Trade BioRes19 March 2010, available http://ictsd.org/i/news/biores/72588/. Accessed March 2011.
216 US Continued Suspension of Obligation of Obligations in Hormones (n 79 ). See
www.wto.org/english/tratop_e/dispu_e/cases_e/ds320_e.htm. accessed 23 September 2010
217 Status Reports by the European Communities- Addendum, WT/DS291/37/Add.21,
WT/DS293/31/Add.21, 13 October 2009. Status Reports by the European Communities- Addendum, WT/DS291/37/Add.59, 7 December 2012.
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