EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS
Document: Recourse to Article 22.2 of the DSU by the United States
Date: 21 January 2008
Document codes: WT/DS291/39
Complainant: U.S.
Respondent: EU
Third parties: Argentina, Australia, Brazil, Canada, Chile, China, Taiwan, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Thailand, Uruguay
Dispute stage: Panel
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7, 8, Annex B, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. I:1, III:4, X:1, XI:1  GATT 1994Art. 4.2  AgricultureArt. 2.1, 2.2, 2.8, 2.9, 2.11, 2.12, 5.1, 5.2, 5.6, 5.8  Technical Barriers to Trade (TBT)

EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL
AND MARKETING OF BIOTECH PRODUCTS
Recourse to Article 22.2 of the DSU by the United States

 The following communication, dated 17 January 2008, from the delegation of the United
States to the Chairman of the Dispute Settlement Bo dy, is circulated pursuant to Article 22.2 of the
DSU.

Pursuant to Article 22.2 of the Understanding on Rules and Procedures Governing the
Settlement of Disputes ("DSU"), the United States requests authorization from the Dispute Settlement
Body ("DSB") to suspend concessions and other obligations with respect to the European
Communities under the covered agreements at an a nnual level equivalent to the annual level of
nullification or impairment of benefits accruing to the United States resulting from the European
Communities' failure to bring measures of the European Communities and its member States
concerning the approval and marketing of bi otech products into compliance with the
recommendations and rulings of the DSB in (WT/DS291).

On 29 August 2003, the DSB established a panel at the request of the United States to
examine measures of the European Communities a nd its member States concerning the approval and
marketing of biotech products. The panel f ound certain of these measures of the European
Communities and its member States to be inconsiste nt with the European Communities' obligations
under the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement").
On 21 November 2006, the DSB adopted the report of the panel. The DSB recommendations and
rulings include, inter alia, the recommendation that the European Communities bring the measures of
the European Communities and its member States in to conformity with the European Communities'
obligations under the SPS Agreement (WT/DS291/33, WT/DS291/R, paras. 8.16, 8.20, 8.32).

Pursuant to Article 21.3(b) of the DSU, the United States and th e European Communities
agreed that the reasonable period of time ("RPT" ) for the European Communities to implement the
DSB's recommendations and rulings would expi re on 21 November 2007 (WT/DS291/35). The
United States and the European Communities s ubsequently agreed to extend the RPT to
11 January 2008 (WT/DS291/36). In the view of the United States, the European Communities failed
to comply with the recommendations and rulings of the DSB by the end of the RPT, and therefore the
United States is entitled to redress under Article 22 of the DSU.

In considering what concessions to suspend, the United States followed the principles and
procedures set forth in Article 22.3 of the DSU. As required by Article 22.4 of the DSU, the level of
suspension proposed is equivalent on an annual basis to the level of nullification or impairment of
benefits accruing to the United St ates resulting from the European Co mmunities' failure to bring the

measures of the European Communities and its me mber States into compliance with the DSB's
recommendations and rulings.

The suspension of concessions and other obliga tions would occur in one or more of the
following:

1. tariff concessions and related obligations (including most-favored-nation obligations)
under the General Agreement on Tariffs and Trade 1994 on a list of products of the
European Communities and/or EC member States to be drawn from the Harmonized
Tariff Schedule of the United States;

2. concessions and other obligati ons under the SPS Agreement; and

3. concessions and other obligations under the Agreement on Agriculture.

The United States intends to suspend benefits at an annual level equal to the annual
nullification or impairment of benefits accruing to the United States with respect to biotech products
(as that term is defined in the panel report) and products produced from or containing biotech
products.

In particular, for each category of affected bi otech product, except biotech products used for
cultivation, and for each category of products pro duced from or containing biotech products, the
annual level of nullification or impairment will be the lost value of US sh ipments to the European
Communities (including any newly admitted EC member States) of that category due to the failure of
the European Communities to bring the measures of the European Communities and its member
States into compliance.

For biotech products used for cultivation within the European Communities, the annual level
of nullification or impairment will be the lost valu e of US exports and US royalties and licensing fees
for each category of biotech crop due to the failu re of the European Communities to bring the
measures of the European Communities and its member States into compliance.