G/TBT/W/697  
26 November  2019 
(19-8097) Page: 1/3 
Committee on Technical Barriers to Trade  Original:  Spanish  
 
  
EUROPEAN UNION - AMENDMENTS TO DIRECTIVE  2009/28/EC,  
RENEWABLE ENERGY DIRECTIVE  
STATEMENT BY COLOMBIA TO THE COMMITTEE  
ON TECHNICAL BARRIERS TO TRADE  
13 TO 15 NOVEMBER  2019 
The following communication, dated 1 3 November  2019, is being circulated at the request of the 
delegation of Colombia . 
 
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1.  We wish to reiterate our concern regarding Directive (EU) 2018/2001 of the European Parliament 
and of the Council, which establishes that, as from  2021, first -generat ion biofuels shall account for 
a share of no more than 7 % in the transport sector, and that first -generation biofuels posing  a high 
risk of indirect land -use change (ILUC) shall have their contribution to the renewable energy share 
gradually reduced to 0 % by 2030 . In Colombia's view, these provisions are inconsistent with the 
national treatment and MFN obligations set out in the G ATT 1994 and Article 2.1 and 2.2 of the 
WTO TBT Agreement.  
2.  Colombia appreciates the intention of the European Union (EU) to adopt a public policy aimed at 
protecting the environment through the promotion of the use of energy from renewable sources . 
Nevertheless, this environmental policy should be applied in a manner that is non -discriminatory 
and not more restrictive than nece ssary, and should  not create an unnecessary obstacle or disguised 
barrier to trade that indirectly affects entire economies and populations dedicated to agricultur e and 
agro-industr y. 
3.  We also wish to express our concern regarding the delegated act issued b y the 
European  Commission , which establishes criteria for identifying high ILUC -risk biofuels and for 
certifying low ILUC -risk biofuels.  
4.  We would first like to draw attention to the ILUC methodology, which has no valid or 
internationally recognised scienti fic basis for measuring the environmental impact of a production 
activity . Nor are there any calculations of the expected reduction in greenhouse gas production, and 
the Commission did not take into account other methodologies that have been validated and tested 
internationally in this area . It is also important to conduct  an impact assessment  – one that takes 
into account the po tential  scope of a measure that sets out  criteria for determining the high ILUC -risk 
feedstock  for which a significant expansion of the production  area into land with high carbon stock  
is observed . 
5.  With regard to the classification of certain high ILUC -risk biofuels, the considerations are not 
technically appropriate, since : (i) the level of deforestation asso ciated with these products is not 
always high in all producing countries ; and (ii) some  countries, such as Colombia, have land available 
to increase the agricultural production area without resorting to deforestation . Furthermore, 
products shown by interna tional studies to be the greatest contributors  to deforestation, such as 
soy, rapeseed and even livestock, are not considered to present a high ILUC risk . The European 
standard could even , by virtue of the delegated act,  benefit producers of these goods who have 
engaged in deforestation, since excessive growth would not be recorded . G/TBT/W/697  
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  6.  In order to establish criteria to define the high ILUC risk, the delegated act uses the reference 
made in the annex " Worldwide production expansion of food and feed crop" . Accordingly , palm oil 
crops would be excluded from the outset due to their excessive growth, without the use of any 
broader classification indicators to ensure that the process is effective and applied in the same 
manner to other crops used in the production of  biofuels . It should be noted that this EU standard 
could also run counter to the commendable aims of environmental conservation , as the oil would 
then come  from other crops that require a larger area to obtain  similar results in terms of production 
volume . 
7.  With regard to the certification mechanism, the delegated act states that biofuels may only be 
certified as low risk if they meet a number of criteria, such as "additionality measures",  which only 
allow for the certification of additional oil, meaning  that a large part of current production could not 
be certified.  
8.  Furthermore, the definition used for small -scale producers (small holders) is a cause for 
significant concern . These producer s are defined as "farmers who conduct independently an 
agricultural activity on a holding with an agricultural area of less than 2 hectares for which they hold 
ownership [or] tenure rights" . In Colombia's view,  this classification has no technical or scien tific 
basis and substantially diverges from the standards used by international organizations such as the 
FAO. It should be recalled that the classification of small -scale producers differs in each country, in 
accordance with economic and social conditions . In addition, certification based on this methodology 
would generate unjustified costs for producers, given that the criteria is not aligned with any 
internationally recognized standard and the methodology is not used on a global basis.  
9.  Furthermore, this measure constitutes de facto  discrimination under Articles I and III of the 
GATT, which prohibit discrimination between like products of different foreign origins and like 
products of foreign and national origin . In this context, it is important to highlig ht the extensive 
economic and technical scope for substitution that exists among vegetable oils . We wish to  draw 
particular attention to the manner in which the Directive and the delegated act establish that a 
feedstock  may present a high ILUC risk  on the basis of indicators, criteria and definitions that 
de facto discriminate against palm oil, but exclude from the prohibition like feedstock , much  of which 
is produced locally in European territory . Similarly, these criteria are applied across the board to a ll 
producers, without recognizing the specific features and differences in production methods and 
processes in different jurisdictions.  
10.  The delegated act also constitutes de facto  discriminat ion under Article 2.1 of the 
TBT Agreement, given the competitive relationship between like products of foreign origin, such as 
soy, and of domestic origin, such as rapeseed . The measure also violates Article 2.2 of the 
TBT Agreement, which requires Members to refrain from adopting technical regulations that create 
unnecessary obstacles to international trade, and fails to fulfil the requirements of the 
"necessity  test" through which its compliance with this Article is assessed . The delegated act does 
not permit countries with low ILUC threat indicators to be excluded from the measure and , in 
addition , excludes feedstock  that threaten s sustainability . Therefore, the measure , as it currently 
stands, is not effective in meeting its environmental protection objective and creates an unnecessary 
obstacle for palm oi l. 
11.  We also  wish to refer to the findings of the Panel in DS332 ( Brazil – Retreaded Tyres ), where it 
was concluded that in order to comply with Article XX(b) of the G ATT 1994, it is necessary to 
establish the existence not just of risks to the environment g enerally, but specifically of direct risks 
to human, animal or plant life or health ; it is therefore clear that this measure is designed to address 
other concerns, including environmental issues, and overlooks the link to other variables that are 
taken int o account in this Article, even being discriminatory since there is evidence of an 
environmental impact on other activities that have not been regulated.  
12.  The measures adopted by the EU discourage the use of biofuels produced from sustainable palm 
oil (as even 100 % sustainable oil cannot count towards renewable energy targets on account of 
being " high ILUC -risk") and have a disproportionately negative impact on countries such as 
Colombia, an environmentally responsible producer of this product.  G/TBT/W/697  
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  13.  Thus, while, on a global scale, palm oil meets the criteria established in the delegated act for 
its categorization as a high ILUC -risk feedstock, there are significant regional differences regarding 
the impact that the expansion of oil palm production  has had i n terms  of deforestation.  
14.  Colombia requests the EU to conduct a thorough review of the delegated act in 2021, in order 
to adopt an approach that enables sustainable palm oil to contribute to the EU's renewable energy 
targets.  
15.  We once again welcome the oppo rtunity to comment on this matter and request the EU to clarify 
how it reconciles this discriminatory treatment against palm oil -producing countries with its WTO 
obligations concerning  national and MFN treatment . We look forward to the EU's response to the  
concerns raised.  
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