WT/DS291/R 
 WT/DS292/R 
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 Page 1067 
  
   (ii) DS292 (Canada) 
   With reference to DS292, and having re gard to the arguments and evidence presented 
by Canada and the European Communities,  the Panel concludes that it is not 
necessary to make findings on whether th e safeguard measures which are being 
challenged by Canada are inconsistent with Article XI:1 of the GATT 1994.  
Accordingly, the Panel offers no findings under Article XI:1. 
 VIII.  CONCLUSIONS AND RECOMMENDATIONS  
8.1 Before concluding, the Panel wishes to make cl ear the issues on which it made a decision, and 
those which it did not address. 
A. OVERVIEW
 OF THE  ISSUES  ADDRESSED  AND  DECIDED  BY THE  PANEL 
8.2 The issues before the Panel concerned the alle ged failure of the European Communities to 
reach final decisions regarding the approval of biotech products from October 1998 to the time of 
establishment of the Panel on 29 August 2003, and the WTO-consistency of prohibitions imposed by 
certain EC member States with regard to specifi c biotech products after these products had been 
approved by the European Communities for Community-wide marketing. 
8.3 In light of this, the Panel did not examine: 
− whether biotech products in general are safe or not. 
 
− whether the biotech products at issue in this dispute are "like" their conventional 
counterparts.  Although this claim was made by the Complaining Parties ( i.e., the 
United States, Canada and Argentina) in rela tion to some aspects of their complaints, 
the Panel did not find it necessary to address those aspects of the complaints. 
 
− whether the European Communities has a right  to require the pre-marketing approval 
of biotech products.  This was not  raised by the Complaining Parties. 
 
− whether the European Communities' approval procedures as established by 
Directive 90/220, Directive 2001/18 and Re gulation 258/97, which provide for a 
product-by-product assessment requiring scientif ic consideration of various potential 
risks, are consistent with the Europ ean Communities' obligations under the WTO 
agreements.  This was not raised by the Complaining Parties. 
 
− the conclusions of the relevant EC sci entific committees regarding the safety 
evaluation of specific biotech products.  These were not challenged by the Complaining Parties, although they did challenge the scientific basis for some of the questions and objections made by various EC member States.  In light of this, the 
Panel, in consultation with the Parties, sought advice from a number of scientific 
experts. 
 8.4 Turning to the issues the Panel did examine, the Panel first considered whether the EC 
approval legislation under which the European Commun ities allegedly did not reach final decisions  is 
properly assessed under the SPS Agreement .  The Panel has found that the European Communities' 
procedures for the approval of GMOs set out in Directives 90/220 and 2001/18 are SPS measures WT/DS291/R 
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Page 1068 
  
  within the meaning of the SPS Agreement .  The potential risks to be exam ined in the context of these 
directives, particularly as described in the annexes to Directive 2001/18, are the types of risk covered 
by the SPS Agreement .  Regarding the European Communities'  procedures for the approval of novel 
foods and food ingredients set out in Regulation 258/ 97, the Panel has found that these are, in part, 
SPS measures within the scope of the SPS Agreement . 
8.5 The Panel notes, however, that both the eviden ce provided by the European Communities and 
the advice provided to the Panel by the experts advising it indicate that many of the identified concerns are highly unlikely to occur in practice ( e.g., the transfer of antibiotic resistance from marker 
genes used in the production of some biotech plants to  bacteria in the human gut).  On the other hand, 
other identified concerns, such as those relating to th e development of pesticide-resistance in target 
insects through exposure to pesticides (including those incorporated into biotech plants) have indeed 
been documented to occur, including with respect to non-biotech crops.  We reiterate, however, that 
the right of the European Communities to consider these possible risks prior to giving approval for the 
consumption or planting of biotech plants has not been questioned by any of the Complaining Parties. 
8.6 The Complaining Parties asserted that a moratorium on approvals was in effect in the 
European Communities between October 1998 and Augus t 2003.  Based on the evidence before it, the 
Panel has found that the European Communities applied a general de facto  moratorium on approvals 
of biotech products between June 1999  and 29 August 2003, the date of establishment of this Panel.  
The Panel determined that the moratorium was not  itself an SPS measure within the meaning of the 
SPS Agreement , but rather affected the operation and a pplication of the EC approval procedures, 
which are set out in the relevant EC approval legislation and which we had found to be SPS measures.  
With respect to Directives 90/220 and 2001/18, the Panel has concluded that the general de facto  
moratorium resulted in a failure to complete indi vidual approval procedures without undue delay, and 
hence gave rise to an inconsistency with Article 8 and Annex C of the SPS Agreement .  With respect 
to Regulation 258/97, the Panel found that, to th e extent the approval procedure addressed safety 
aspects within the scope of the SPS Agreement , the general de facto  moratorium resulted in a failure 
to complete individual approval procedures without  undue delay, and hence also gave rise to an 
inconsistency with Article  8 and Annex C of the SPS Agreement .   
8.7 The Complaining Parties also claimed that, c ontrary to its WTO obligations, the European 
Communities failed to consider for final approval a pplications concerning certain specified biotech 
products for which the European Communities had commenced approval procedures.  We examined 
the record of consideration of 27 applications iden tified by the Complaining Parties.  We have found 
that there was undue delay in the completion of th e approval procedure with respect to 24 of the 
27 relevant products.  We therefor e concluded that, in relation to the approval procedures concerning 
these 24 products, the European Communities has breached its obligations under Article 8 and 
Annex C of the SPS Agreement .   
8.8 The Complaining Parties furthermore brought complaints against nine safeguard measures 
taken by certain EC member States.  These safeguard measures are in the form of prohibitions 
imposed by an individual EC member State on a pa rticular biotech product that has been formally 
approved for use within the European Communitie s.  The safeguard meas ures challenged by the 
Complaining Parties have been taken by Austria, Belgium, France, Germany, Italy and Luxembourg.  
The Complaining Parties did not challenge the EC  approval legislation, which provides for the 
conditional right of individual EC member States to impose SPS measures which differ from those of the European Communities as a whole.  Instead, wh at the Complaining Parties challenged were the 
prohibitions imposed by the relevant member States  on the basis of the aforementioned EC approval 
legislation.  According to the Complaining Parti es, the safeguard measures imposed by the relevant 
member States were inconsistent with th e European Communities' WTO obligations.   WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1069 
  
  8.9 We determined that the objectives identifie d by each member State for its safeguard 
measure(s) fall within the scope of the SPS Agreement .  For each of the products at issue, the 
European Communities' relevant scientific comm ittee had evaluated the potential risks to human 
health and/or the environment prior to the gran ting of Community-wide approval, and had provided a 
positive opinion.  The relevant EC scientific committe e subsequently also reviewed the arguments and 
the evidence submitted by the member State to justify the prohibition, and did not consider that such 
information called into question its earlier conclusi ons.  The Panel thus considered that sufficient 
scientific evidence was available to permit a risk assessment as required by the SPS Agreement .  
Hence, in no case was the situation one in which the Panel had been persuaded that the relevant 
scientific evidence was insufficient to perform a risk assessment, such  that the member State might 
have had recourse to a provisiona l measure under Article 5.7 of the SPS Agreement .   
8.10 The Panel also considered whether any risk assessment had been provided by the relevant 
member States which would reasonably support the pr ohibition of the biotech products at issue.  
Although some of the member States did provide sci entific studies, in no case did they provide an 
assessment of the risks to human health and/or the environment meeting the requirements of the 
SPS Agreement .  The Panel likewise examined whether th e risk assessments undertaken by the EC 
scientific committees could provide reasonable suppor t for a prohibition of the biotech products at 
issue, but considered that this w as not the case.  In the light of this, the Panel has concluded that each 
of the safeguard measures taken by the relevant me mber States fails to meet the obligations of the 
European Communities under the SPS Agreement .  
B. STRUCTURE
 OF THE  PANEL'S  CONCLUSIONS  AND  RECOMMENDATIONS   
8.11 As we have indicated at the beginning of the Fi ndings section, consistent with the fact that we 
examined three legally distinct complaints, we have  particularized for each of the three Complaining 
Parties ( i.e., the United States, Canada and Argentina) the conclusions we have reached and the 
recommendations we make, if any, in respect of thei r respective complaints.  Accordingly, we provide 
three separate sets of conclusions and recommendations.     
8.12 We further recall that the Complaining Parties are each challenging three identical categories 
of EC measures.  The categories in question are:   
(a) the alleged general EC moratorium on appr ovals of biotech products (hereafter the 
"general EC moratorium");  
(b) various product-specific EC measures a ffecting the approval of specific biotech 
products (hereafter the "product-specific EC measures"); and  
(c) various EC member State safeguard me asures prohibiting the import and/or 
marketing of specific biotech products (hereafter the "EC member State safeguard measures"). WT/DS291/R 
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Page 1070 
  
  C. COMPLAINT
 BY THE  UNITED  STATES  (DS291):  CONCLUSIONS  AND  
RECOMMENDATIONS  OF THE  PANEL   
1. General EC moratorium  
8.13 For the reasons set forth in this Report, th e Panel concludes, as a factual matter, that: 
(a) The European Communities applied a general de facto  moratorium on the approval of 
biotech products between June 1999 and A ugust 2003, which is when this Panel was 
established.   
8.14 For the reasons set forth in this Report, the Pa nel further concludes, as a legal matter, that: 
(a) The European Communities has acted inconsistently  with its obligations under 
Annex C(1)(a), first clause, of the SPS Agreement  and, consequently, with its 
obligations under Article 8 of the SPS Agreement  by applying a general de facto  
moratorium on approvals between June 1999 and August 2003.    
(b) The United States has not  established that the Eur opean Communities has acted 
inconsistently  with its obligations under Annex C(1)(b) of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.   
(c) The European Communities has not  acted inconsistently  with its obligations under 
Annex B(1) and Article 7 of the SPS Agreement  in respect of the general de facto  
moratorium on approvals.   
(d) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    
(e) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    
(f) The United States has not established  that the European Communities has acted 
inconsistently with its obligations under Article 2.2 of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.  
(g) The United States has not established that the European Communities has acted 
inconsistently with its obligations under Article 2.3 of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.    
8.15 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement , it must be presumed to have nullified or  impaired benefits accruing to the United 
States under that Agreement.  WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1071 
  
  8.16 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the general de facto  moratorium on approvals into 
conformity with its obligations under the SPS Agreement , if, and to the extent that, that measure has 
not already ceased to exist.   
2. Product-specific EC measures  
8.17 The Panel made findings in relation to twen ty-five product-specific EC measures challenged 
by the United States (hereafter "the relevant product-specific measures").  
8.18 For the reasons set forth in this Report, the Panel concludes that: 
(a) The European Communities has breached
 its obligations under Annex C(1)(a), first 
clause, of the SPS Agreement  and, consequently, its obliga tions under Article 8 of the 
SPS Agreement  in respect of the approval procedures concerning:2185 
(i) Falcon oilseed rape; 
(ii) MS8/RF3 oilseed rape; 
(iii) RR fodder beet; 
(iv) Bt-531 cotton; 
(v) RR-1445 cotton; 
(vi) Liberator oilseed rape; 
(vii) Bt-11 maize (EC-69); 
(viii) RR oilseed rape (EC-70); 
(ix) BXN cotton; 
(x) Bt-1507 maize (EC-74); 
(xi) Bt-1507 maize (EC-75);  
(xii) NK603 maize; 
(xiii) GA21 maize (EC-78); 
(xiv) MON810 x GA21 maize;  
(xv) RR sugar beet; 
(xvi) GA21 maize (food); 
                                                      
2185 In respect of the approval procedures conducted under Regulation 258/97 – the procedures 
concerning those biotech products which are identified as "food" – the Panel's conclusions apply to the extent 
the relevant approval procedure is an SPS measure. WT/DS291/R 
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Page 1072 
  
  (xvii)  Bt-11 sweet maize (food); 
(xviii)  MON810 x GA21 maize (food); 
(xix) Bt-1507 maize (food); 
(xx) NK603 maize (food); and 
(xxi) RR sugar beet (food). 
(b) The United States has not established
 that the European Communities has breached 
its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement  
in respect of the approval procedures concerning: 
(i) the Transgenic potato; 
(ii) LL soybeans (EC-71);   
(iii) LL oilseed rape; and  
(iv) LL soybeans (food). 
(c) The United States has not established  that the relevant product-specific measures  
have resulted in the European Communities ac ting inconsistently with its obligations 
under Annex C(1)(b) and Article 8 of the SPS Agreement .    
(d) The European Communities has not  acted inconsistently  with its obligations under 
Annex B(1) and Article 7 of the SPS Agreement  in respect of any of the relevant 
product-specific measures .    
(e) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(f) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(g) The United States has not established  that the European Communities has acted 
inconsistently with its obliga tions under Article 2.2 of the  SPS Agreement in respect 
of any of the relevant product-specific measures . 
8.19 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement  in respect of the relevant product-specifi c measures, it must be presumed to have 
nullified or impaired benefits accruing to the United States under that Agreement. 
8.20 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the rele vant product-specific measures into conformity  WT/DS291/R 
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 Page 1073 
  
  with its obligations under the SPS Agreement .  These recommendations do not apply to those relevant 
product-specific measures that were withdrawn after the Panel was established or the product-specific 
measure affecting the approval of Bt-11 sweet maiz e (food), since the application concerning Bt-11 
sweet maize (food) was definitively approved during the course of the Panel proceedings.     
3. EC member State safeguard measures  
8.21 The Panel made findings in relation to all ni ne member State safeguard measures challenged 
by the United States (hereafter "the relevant member State safeguard measures").  
(a) Austria – T25 maize 
8.22 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently
 with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on T25 maize, the Eur opean Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(b) Austria - Bt-176 maize 
8.23 In relation to the Austrian safeguard measure on Bt-176 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on Bt-176 ma ize is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) Austria - MON810 maize 
8.24 In relation to the Austrian safeguard measure on MON810 maize, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on MON810 maize is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the WT/DS291/R 
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Page 1074 
  
  measure in question, the European Communities has acted inconsistently
 with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on MON810 maize, the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(d) France - MS1/RF1 oilseed rape (EC-161) 
8.25 In relation to the French safeguard measure on MS1/RF1 oilseed rape (EC-161), and for the 
reasons set forth in this Repor t, the Panel concludes that: 
(a) The French safeguard measure on MS1/RF1 oilseed rape (EC-161) is not based on a 
risk assessment as required by Article 5.1 of the SPS Agreement , and it is not 
consistent with the requirements of Article 5.7 of the SPS Agreement .  Therefore, by 
maintaining the measure in question,  the European Co mmunities has acted 
inconsistently  with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the French 
safeguard measure on MS1/RF1 oilseed ra pe (EC-161), the European Communities 
has, by implication, also acted inconsistently  with the second and third requirements 
in Article 2.2 of the SPS Agreement . 
(e) France - Topas oilseed rape  
8.26 In relation to the French safeguard measure on Topas oilseed rape, and for the reasons set 
forth in this Report, the Panel concludes that: 
(a) The French safeguard measure on Topas o ilseed rape is not based on a risk 
assessment as required by Article 5.1 of the SPS Agreement , and it is not consistent 
with the requirements of Article 5.7 of the SPS Agreement .  Therefore, by 
maintaining the measure in question,  the European Co mmunities has acted 
inconsistently  with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the French 
safeguard measure on Topas oilseed rape , the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(f) Germany – Bt-176 maize  
8.27 In relation to the German safeguard measure on Bt -176 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The German safeguard measure on Bt-176 maiz e is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.    WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1075 
  
  (b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the German 
safeguard measure on Bt-176 maize, the European Communities has, by implication, also acted inconsistently
 with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(g) Greece - Topas oilseed rape  
8.28 In relation to the Greek safeguard measure on To pas oilseed rape, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) The Greek safeguard measure on Topas oilseed  rape is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Greek 
safeguard measure on Topas oilseed rape , the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on the United States' claim under Article XI:1 of the GATT 
1994.  
(h) Italy - Bt-11 maize (EC-163), MON810 maize, MON809 maize and T25 maize  
8.29 In relation to the Italian safeguard meas ure on Bt-11 maize (EC-163), MON810 maize, 
MON809 maize and T25 maize, and for the reasons set forth in this Report, the Panel concludes that: 
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize, MON809 
maize and T25 maize is not based on a risk assessment as required by Article 5.1 of the SPS Agreement , and it is not consistent with the requirements of Article 5.7 of the 
SPS Agreement .  Therefore, by maintaining the measure in question, the European 
Communities has acted inconsistently
 with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Italian 
safeguard measure on Bt-11 maize (EC- 163), MON810 maize, MON809 maize and 
T25 maize, the European Communities has, by implication, also acted inconsistently  
with the second and third requirements in Article 2.2 of the SPS Agreement . 
(i) Luxembourg – Bt-176 maize  
8.30 In relation to Luxembourg's safeguard measure on Bt-176 maize, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) Luxembourg's safeguard measure on Bt-176 ma ize is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   WT/DS291/R 
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Page 1076 
  
  (b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , Luxembourg's 
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication, 
also acted inconsistently
 with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(j) Nullification or impairment of benefits and recommendations 
8.31 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement  in respect of the relevant member State safeguard measures, it must be presumed 
to have nullified or impaired benefits accr uing to the United States under that Agreement. 
8.32 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the relevant member State safeguard measures into 
conformity with its obligations under the SPS Agreement .      
D. COMPLAINT  BY CANADA  (DS292):   CONCLUSIONS  AND  RECOMMENDATIONS  OF 
THE  PANEL 
1. General EC moratorium  
8.33 For the reasons set forth in this Report, th e Panel concludes, as a factual matter, that: 
(a) The European Communities applied a general de facto moratorium on the approval of 
biotech products between June 1999 and A ugust 2003, which is when this Panel was 
established.   
8.34 The Panel further concludes, as a legal matter, that: 
(a) The European Communities has acted inconsistently  with its obligations under 
Annex C(1)(a), first clause, of the SPS Agreement  and, consequently, with its 
obligations under Article 8 of the SPS Agreement  by applying a general de facto  
moratorium on approvals between June 1999 and August 2003.    
(b) The European Communities has not  acted inconsistently  with its obligations under 
Annex B(1) and Article 7 of the SPS Agreement  in respect of the general de facto  
moratorium on approvals.   
(c) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    
(d) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.6 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    
(e) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.     WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1077 
  
  (f) Canada has not established
 that the European Communiti es has acted inconsistently 
with its obligations under Article 2.2 of the SPS Agreement  by applying a general de 
facto  moratorium on approvals between  June 1999 and August 2003.  
(g) Canada has not established  that the European Communiti es acted inconsistently with 
its obligations under Article 2.3 of the SPS Agreement  by applying a general de facto  
moratorium on approvals between June 1999 and August 2003.    
8.35 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement , it must be presumed to have nullified or  impaired benefits accruing to Canada 
under that Agreement. 
8.36 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the general de facto  moratorium on approvals into 
conformity with its obligations under the SPS Agreement , if, and to the extent that, that measure has 
not already ceased to exist.   
2. Product-specific EC measures  
8.37 The Panel made findings in relation to four  product-specific EC measures challenged by 
Canada (hereafter "the relevant product-specific measures").  
8.38 For the reasons set forth in this Report, the Panel concludes that: 
(a) The European Communities has breached  its obligations under Annex C(1)(a), first 
clause, of the SPS Agreement  and, consequently, its obliga tions under Article 8 of the 
SPS Agreement  in respect of the approval procedures concerning: 
(i) MS8/RF3 oilseed rape; 
(ii) RR oilseed rape (EC-70);  
(iii) MS1/RF1 oilseed rape (EC-89); and 
(iv) MS1/RF2 oilseed rape.  
(b) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(c) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.6 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(d) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    WT/DS291/R 
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Page 1078 
  
  (e) Canada has not established
 that the European Communiti es has acted inconsistently 
with its obligations under Article 2.2 of the  SPS Agreement in respect of any of the 
relevant product-specific measures . 
(f) Canada has not established  that the European Communiti es has acted inconsistently 
with its obligations under Article 2.3 of the SPS Agreement  in respect of any of the 
relevant product-specific measures .  
(g) There is no need to rule  on Canada's claim under Artic le III:4 of the GATT 1994 in 
respect of any of the relevant product-specific measures . 
(h) There is no need to rule  on Canada's claims under Articles 5.1.2, 5.2.1, first part, 2.1 
and 2.2 of the TBT Agreement  in respect of any of the relevant product-specific 
measures .  
8.39 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement  in respect of the relevant product-specifi c measures, it must be presumed to have 
nullified or impaired benefits accruing to Canada under that Agreement. 
8.40 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the rele vant product-specific measures into conformity 
with its obligations under the SPS Agreement .   
3. EC member State safeguard measures  
8.41 The Panel made findings in relation to all five  member State safeguard measures challenged 
by Canada (hereafter "the relevant member State safeguard measures").  
(a) Austria – T25 maize 
8.42 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on T25 maize, the Eur opean Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) There is no need to rule  on Canada's claim under the firs t requirement of Article 2.2 
and under Article 2.3 of the SPS Agreement .     WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1079 
  
  (d) There is no need to rule
 on Canada's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Canada's alternative claims under Articles 2.1, 2.2 and 2.9 
of the TBT Agreement .   
(f) There is no need to rule  on Canada's claim under Article III:4 of the GATT 1994. 
(b) France - MS1/RF1 oilseed rape (EC-161) 
8.43 In relation to the French safeguard measure on MS1/RF1 oilseed rape (EC-161), and for the 
reasons set forth in this Repor t, the Panel concludes that: 
(a) The French safeguard measure on MS1/RF1 oilseed rape is not based on a risk 
assessment as required by Article 5.1 of the SPS Agreement , and it is not consistent 
with the requirements of Article 5.7 of the SPS Agreement .  Therefore, by 
maintaining the measure in question,  the European Co mmunities has acted 
inconsistently  with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the French 
safeguard measure on MS1/RF1 oilseed ra pe, the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on Canada's claim under the firs t requirement of Article 2.2 
and under Article 2.3 of the SPS Agreement .    
(d) There is no need to rule  on Canada's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Canada's alternative claims under Articles 2.1, 2.2 and 2.9 
of the TBT Agreement .   
(f) There is no need to rule  on Canada's claim under Article III:4 of the GATT 1994.  
(c) France - Topas oilseed rape  
8.44 In relation to the French safeguard measure on Topas oilseed rape, and for the reasons set 
forth in this Report, the Panel concludes that: 
(a) The French safeguard measure on Topas o ilseed rape is not based on a risk 
assessment as required by Article 5.1 of the SPS Agreement , and it is not consistent 
with the requirements of Article 5.7 of the SPS Agreement .  Therefore, by 
maintaining the measure in question,  the European Co mmunities has acted 
inconsistently  with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the French 
safeguard measure on Topas oilseed rape , the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . WT/DS291/R 
WT/DS292/R WT/DS293/R 
Page 1080 
  
  (c) There is no need to rule
 on Canada's claim under the firs t requirement of Article 2.2 
and under Article 2.3 of the SPS Agreement .    
(d) There is no need to rule  on Canada's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Canada's alternative claims under Articles 2.1, 2.2 and 2.9 
of the TBT Agreement .   
(f) There is no need to rule  on Canada's' claim under Ar ticle III:4 of the GATT 1994.  
(d) Greece - Topas oilseed rape  
8.45 In relation to the Greek safeguard measure on To pas oilseed rape, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) The Greek safeguard measure on Topas oilseed  rape is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Greek 
safeguard measure on Topas oilseed rape , the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on Canada's claim under the firs t requirement of Article 2.2 
and under Article 2.3 of the SPS Agreement .    
(d) There is no need to rule  on Canada's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Canada's alternative claims under Articles 2.1, 2.2 and 2.9 
of the TBT Agreement .   
(f) There is no need to rule  on Canada's claim under Article XI:1 of the GATT 1994.  
(e) Italy - Bt-11 maize (EC-163), MON810 maize, MON809 maize and T25 maize  
8.46 In relation to the Italian safeguard meas ure on Bt-11 maize (EC-163), MON810 maize, 
MON809 maize and T25 maize, and for the reasons set forth in this Report, the Panel concludes that: 
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize, MON809 
maize and T25 maize is not based on a risk assessment as required by Article 5.1 of 
the SPS Agreement , and it is not consistent with the requirements of Article 5.7 of the 
SPS Agreement .  Therefore, by maintaining the measure in question, the European 
Communities has acted inconsistently  with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Italian 
safeguard measure on Bt-11 maize (EC- 163), MON810 maize, MON809 maize and  WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1081 
  
  T25 maize, the European Communities has, by implication, also acted inconsistently
 
with the second and third requirements in Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on Canada's claim under the firs t requirement of Article 2.2 
and under Article 2.3 of the SPS Agreement .    
(d) There is no need to rule  on Canada's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Canada's alternative claims under Articles 2.1, 2.2 and 2.9 
of the TBT Agreement .   
(f) There is no need to rule  on Canada's claim under Article III:4 of the GATT 1994.  
(f) Nullification or impairment of benefits and recommendations 
8.47 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement  in respect of the relevant member State safeguard measures, it must be presumed 
to have nullified or impaired benefits accruing to Canada under that Agreement. 
8.48 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the relevant member State safeguard measures into 
conformity with its obligations under the SPS Agreement .      
E. COMPLAINT  BY ARGENTINA  (DS293):  CONCLUSIONS  AND  RECOMMENDATIONS  
OF THE  PANEL   
1. General EC moratorium  
8.49 For the reasons set forth in this Report, th e Panel concludes, as a factual matter, that: 
(a) The European Communities applied a general de facto  moratorium on the approval of 
biotech products between June 1999 and A ugust 2003, which is when this Panel was 
established.   
8.50 The Panel further concludes, as a legal matter, that: 
(a) The European Communities has not  acted inconsistently  with its obligations under 
Annex B(1) and Article 7 of the SPS Agreement  in respect of the general de facto  
moratorium on approvals.   
(b) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    
(c) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  by applying a general de facto  moratorium on 
approvals between June 1999 and August 2003.    WT/DS291/R 
WT/DS292/R WT/DS293/R 
Page 1082 
  
  (d) Argentina has not established
 that the European Communities has acted 
inconsistently with its obligations under Article 2.2 of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.  
(e) Argentina has not established  that the European Communities has acted 
inconsistently with its obligations under Article 2.3 of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.    
(f) Argentina has not established  that the European Communities has acted 
inconsistently with its obliga tions under Article 10.1 of the SPS Agreement  by 
applying a general de facto  moratorium on approvals  between June 1999 and 
August 2003.    
8.51 In view of the above conclusions, the Panel makes no recommendations pursuant to 
Article 19.1 of the DSU.   
2. Product-specific EC measures  
8.52 The Panel made findings in relation to ten product-specific EC measures challenged by 
Argentina (hereafter "the relevant product-specific measures").  However, Argentina made various 
claims under Article 8 and Annex C(1) of the SPS Agreement  with regard to only eight of the ten 
"relevant product-specific measures".  Therefor e, for the purposes of the Panel's conclusions 
concerning the claims under Article 8 and Annex C(1) , the term "relevant product-specific measures" 
refers to the eight product-specific measures in  question.  The two excluded measures are those 
affecting the approval of Bt-531 cotton and RR-1445 cotton under Regulation 258/97.  In relation to 
these two measures, the Panel concludes that their ex istence has not been demonstrated by Argentina. 
8.53 For the reasons set forth in this Report, the Panel concludes that: 
(a) The European Communities has breached  its obligations under Annex C(1)(a), first 
clause, of the SPS Agreement  and, consequently, its obliga tions under Article 8 of the 
SPS Agreement  in respect of the approval procedures concerning:2186 
(i) Bt-531 cotton; 
(ii) RR-1445 cotton; 
(iii) LL soybeans (EC-71); 
(iv) NK603 maize; 
(v) GA21 maize (EC-78); 
(vi) GA21 maize (food); and 
(vii) NK603 maize (food). 
                                                      
2186 In respect of the approval procedures conducted under Regulation 258/97 – the procedures 
concerning those biotech products which are identified as "food" – the Panel's conclusions apply to the extent 
the relevant approval procedure is an SPS measure.  WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1083 
  
  (b) Argentina has not established
 that the European Communities has breached its 
obligations under Annex C(1)(a), fi rst clause, and Article 8 of the SPS Agreement  in 
respect of the approval procedures concerning: 
(i) LL soybeans (food).  
(c) Argentina has not established  that the relevant product-specific measures  have 
resulted in the European Communities acting in consistently with its obligations under 
Annex C(1)(a), second clause, and Article 8 of the SPS Agreement.   
(d) Argentina has not established  that the relevant product-specific measures  have 
resulted in the European Communities acting in consistently with its obligations under 
Annex C(1)(b) and Article 8 of the SPS Agreement .    
(e) Argentina has not established  that the relevant product-specific measures  have 
resulted in the European Communities acting in consistently with its obligations under 
Annex C(1)(c) and Article 8 of the SPS Agreement .    
(f) Argentina has not established  that the relevant product-specific measures  have 
resulted in the European Communities acting in consistently with its obligations under 
Annex C(1)(e)  and Article 8 of the SPS Agreement .    
(g) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.1 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(h) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.6 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .  
(i) The European Communities has not  acted inconsistently  with its obligations under 
Article 5.5 of the SPS Agreement  in respect of any of the relevant product-specific 
measures .    
(j) Argentina has not established  that the European Communities has acted 
inconsistently with its obliga tions under Article 2.2 of the  SPS Agreement in respect 
of any of the relevant product-specific measures . 
(k) Argentina has not established  that the European Communities has acted 
inconsistently with its obligations under Article III:4 of the GATT 1994 in respect of 
any of the relevant product-specific measures . 
(l) There is no need to rule  on Argentina's alternative claims under Articles 5.1.1, 5.1.2, 
5.2.1, first part, 5.2.2, 2.1, 2.2 and 12 of the TBT Agreement  in respect of any of the 
relevant product-specific measures .   
8.54 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under WT/DS291/R 
WT/DS292/R WT/DS293/R 
Page 1084 
  
  the SPS Agreement  in respect of the relevant product-specifi c measures, it must be presumed to have 
nullified or impaired benefits accruing to Argentina under that Agreement. 
8.55 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the rele vant product-specific measures into conformity 
with its obligations under the SPS Agreement .  These recommendations do not apply to those of the 
relevant product-specific measures which were withdrawn after the Panel was established.  
3. EC member State safeguard measures  
8.56 The Panel made findings in relation to all six  member State safeguard measures challenged by 
Argentina (hereafter "the relevant member State safeguard measures").  
(a) Austria – T25 maize 
8.57 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently
 with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on T25 maize, the Eur opean Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .   
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
(b) Austria - Bt-176 maize  
8.58 In relation to the Austrian safeguard measure on Bt-176 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on Bt-176 ma ize is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.    WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1085 
  
  (b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication, 
also acted inconsistently
 with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .  
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
(c) Austria - MON810 maize 
8.59 In relation to the Austrian safeguard measure on MON810 maize, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) The Austrian safeguard measure on MON810 maize is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently  with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Austrian 
safeguard measure on MON810 maize, the European Communities has, by 
implication, also acted inconsistently  with the second and third requirements in 
Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .  
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
(d) Germany – Bt-176 maize  
8.60 In relation to the German safeguard measure on Bt -176 maize, and for the reasons set forth in 
this Report, the Panel concludes that: 
(a) The German safeguard measure on Bt-176 maiz e is not based on a risk assessment as 
required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the WT/DS291/R 
WT/DS292/R WT/DS293/R 
Page 1086 
  
  measure in question, the European Communities has acted inconsistently
 with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the German 
safeguard measure on Bt-176 maize, the European Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .  
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
(e) Italy - Bt-11 maize (EC-163), MON810 maize and T25 maize2187 
8.61 In relation to the Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize and 
T25 maize, and for the reasons set forth in this Report, the Panel concludes that: 
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize and T25 
maize is not based on a risk assessment as required by Article 5.1 of the SPS Agreement , and it is not consistent with the requirements of Article 5.7 of the 
SPS Agreement .  Therefore, by maintaining the measure in question, the European 
Communities has acted inconsistently
 with its obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , the Italian 
safeguard measure on Bt-11 maize (EC- 163), MON810 maize and T25 maize, the 
European Communities has, by impli cation, also acted inconsistently  with the second 
and third requirements in Article 2.2 of the SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .  
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
                                                      
2187 Unlike the United States and Canada, Argentina di d not challenge the Italian safeguard measure on 
MON809 maize.  WT/DS291/R 
 WT/DS292/R 
 WT/DS293/R 
 Page 1087 
  
  (f) Luxembourg – Bt-176 maize  
8.62 In relation to Luxembourg's safeguard measure on Bt-176 maize, and for the reasons set forth 
in this Report, the Panel concludes that: 
(a) Luxembourg's safeguard measure on Bt-176 ma ize is not based on a risk assessment 
as required by Article 5.1 of the SPS Agreement , and it is not consistent with the 
requirements of Article 5.7 of the SPS Agreement .  Therefore, by maintaining the 
measure in question, the European Communities has acted inconsistently
 with its 
obligations under Article 5.1.   
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement , Luxembourg's 
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication, 
also acted inconsistently  with the second and third requirements in Article 2.2 of the 
SPS Agreement . 
(c) There is no need to rule  on Argentina's claim under the first requirement of Article 
2.2 and under Article 2.3 of the SPS Agreement.  
(d) There is no need to rule  on Argentina's claims under Articles 5.5 and 5.6 of the 
SPS Agreement .  
(e) There is no need to rule  on Argentina's alternative claims under Articles 2.1, 2.2 and 
2.9 of the TBT Agreement .  
(f) There is no need to rule  on Argentina's claim under Article III:4 of the GATT 1994.  
(g) Nullification or impairment of benefits and recommendations 
8.63 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the 
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a 
case of nullification or impairment".  The Europ ean Communities failed to rebut this presumption.  
Therefore, to the extent the European Communities has acted inconsistently with its obligations under 
the SPS Agreement  in respect of the relevant member State safeguard measures, it must be presumed 
to have nullified or impaired benefits accruing to Argentina under that Agreement. 
8.64 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body 
request the European Communities to bring the relevant member State safeguard measures into 
conformity with its obligations under the SPS Agreement .      
 
_______________