G/TBT/W/602  
14 March  2019 
(19-1616) Page: 1/2 
Committee on Technical Barriers to Trade  Original:  Spanish  
 
  
EUROPEAN UNION – AMENDMENTS TO DIRECTIVE  2009/28/EC,  
RENEWABLE ENERGY DIR ECTIVE  
STATEMENT BY COLOMBIA TO THE COMMITTEE ON TECHNICAL BARRIERS TO TRADE  
 6 AND 7 MARCH 2019  
The following communication, dated 1 4 March  2019, is being circulated at the request of the 
delegation of Colombia . 
_______________  
 
 
1.  Colombia reiterates that it appreciates the intention of the European Union (EU) to adopt a public 
policy to protect the environment thr ough the promotion of the use of energy from renewable 
sources.  
2.  However, Colombia shares the concern expressed by other countries that the implementation of 
the policy should be undertaken in a manner that is not more restrictive than necessary and does 
not subsequently create an unnecessary barrier to trade . In our view, the agreement reached by the 
Council and the Parliament of the EU to eliminate palm oil -based biofuels as of 2030 would be 
inconsistent with the national treatment and MFN obligations cont ained in Article 2.1 of the 
TBT Agreement and in Articles I:1 and III:4 of the GATT 1994.  
3.  On this occasion, our country wishes to express its concern regarding the draft delegated act for 
identifying  high ILUC (indirect land use change) risk biofuels and the criteria for certifying  low ILUC 
risk biofuels published  by the European  Commission , emphasi zing the effect  that this could have on 
our exports and the resulting social impact.  
4.  Firstly, we wish to begin by drawing attention to the est ablishment of criteria for applying the 
ILUC methodology, which does not have a valid scientific basis at present for measuring the 
environmental  impact  of an activity , unlike methodologies such as the LCA (Life Cycle Asses sment) 
or the CF (Carbon Footprin t), which have been validated and t ested . 
5.  Secondly, it is important to emphasize  that, as regards the classification of high ILUC risk biofuels , 
the considerations are not technically appropriate, taking account of the fact that : (i) deforestation 
linked to these commodities  is not always high in all producing  countries ; and (ii) there are countries , 
such as ours , which have land available for increasing  the area for agriculture without causing 
deforestation, which was establish ed in the definition  of our agricultural  boundaries .1 In addition, 
certification based  on this methodology  could result in unjustified costs given that measurement 
criteria are variable and do not generate reliable results.  
6.  Despite the fact that the draft delegated act seeks t o establish risk criteria according to the crop 
concerned, preambular paragraph number 8 clear ly indicates that, in order to establish  these high 
ILUC risk criteria, account needs to be taken of the reference made in the annex "Worldwide 
production expansi on of food and feed crop" . In this regard, the cultivation of palm oil would be 
excluded from the outset by the excessive growth indicated there, without any more detailed  
classification indicators  being presented  to ensure that the process is effective and applied  in the 
same manner in relation  to other crops of EU relevance, such as rapeseed . 
                                                
1 Decision 261 of June  2018.  G/TBT/W/602  
- 2 - 
  7.  Moreover, the document suggests that biofuels, bioliquids  and biomass fuels can only be certified 
as low -risk if they comp ly with certain specified criteria . In this case , some of these criteria applie d 
to small producers ( small holders ), defined as "farmers independently conducting an  agricultural  
activit y on a holding  with an agricultural area  of less than 2 -5 hectares for w hich they hold ownership 
or lease rights" , are of great interest and also a source of concern . In this regard, Colombia considers 
that this classification has no technical or scientific basis and is far removed  from the Directive 's 
purpose  and its conservationist justification , since the fact that the activity is carried out by a small 
producer  does not mean that there has been no change in land use in that area or that there has 
been a n adverse  impact on forests or the environment . Furthermore, the  definition of small producer 
differs in each country, according to economic  and social conditions.  
8.  Furthermore , Colombia wishes to refer to the findings of the Panel in Brazil -Retreaded Tyres2, 
which concluded that in order to comply with Article XX(b) of  GATT 1994 , it is neces sary to establ ish 
the existenc e of not only environment al risks  in general  but also direct risks  that can arise for 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 
into account in this Article, even being discriminatory since there is evidence of an environmental  
impact on other activities that have not been regulated.  
9.  Colombia consider s with regard to its exports of palm oil that this measure discriminat es de facto , 
in view of the terms of Article 2.1 of the TBT Agreement  and Articles I and III of the  GATT , between 
like products of different  foreign  origins  and like pr oducts of foreign and national origin , thereby  
causing unnecessary technical barriers to trade.  
10.  If all these recommendations are adopted in a regulatory framework , it could be considered  that 
the EU is promoting non -tariff barriers to trade  that lack any scientific basis and that are designed 
in a discriminatory manner to restrict trade in products originating  from developing countries . It 
therefore makes no sense to maintain  that the problem  is the crop , but to exclude from the scope 
of the regul ation products originating from developed countries that may be connected  to 
deforestation and climate change.  
11.  All of this discourages the use of biofuels made from palm oil, and would have a 
disproportionately negative impact in Colombia, which is a produ cer of palm oil . We would therefore 
be grateful if the EU would explain how it reconciles this discriminatory treatment against palm 
oil-producing countries with its WTO obligations on national and MFN treatment.  
12.  Lastly, Colombia appreciates this opportuni ty to make these observations, and looks forward to 
the EU's replies to its questions.  
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2 Brazil – Measures Affecting Imports of Retreaded Tyres  
www.wto.org/english/tratop_e/dispu_e/332r_e.pdf .