Document: WT/DS291/R WT/DS292/R WT/DS293/R Page 248 5.124 Finally, a remark regarding the require ments of the "chapeau" of Article XX of the GATT 1994.  There is nothing in facts of this case th at indicate that the national measures in this dispute are applied in a discriminatory way, nor that they represent a disguised restriction on international trade.  These bans on certain GMOs  are based on legitimate concerns, and are applied equally to all Members of the WTO. VI. INTERIM REVIEW 6.1 Pursuant to Article 15.3 of the DSU, the findi ngs of the final panel report shall include a
Date: 7 February 2006
Document codes: WT/DS291/R; WT/DS292/R; WT/DS293/R
Complainant: Argentina
Respondent: EU
Third parties: Australia, Brazil, Canada, Chile, China, Taiwan, Colombia, El Salvador, Honduras, Mexico, New Zealand, Norway, Paraguay, Peru, Thailand, Uruguay, U.S.
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7, 8, 10.1, Annex B, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. III:4, X:1, X:3(a), XI:1  GATT 1994Art. 2.1, 2.2, 2.8, 2.9, 2.11, 5.1, 5.2, 5.6, 5.8, 12  Technical Barriers to Trade (TBT)Art. 4.2  AgricultureArt. I:1  GATT 1994

5.124 Finally, a remark regarding the require ments of the "chapeau" of Article XX of the
GATT 1994. There is nothing in facts of this case th at indicate that the national measures in this
dispute are applied in a discriminatory way, nor that they represent a disguised restriction on
international trade. These bans on certain GMOs are based on legitimate concerns, and are applied
equally to all Members of the WTO.

VI. INTERIM REVIEW
6.1 Pursuant to Article 15.3 of the DSU, the findi ngs of the final panel report shall include a
discussion of the arguments made by the parties at the interim review stage. This Section of the Panel
reports provides such a discussion. As is clear from Article 15.3, this Section is part of the Panel's
findings.
A. BACKGROUND

6.2 The United States, Canada, Argentina and the European Communities separately requested an
interim review by the Panel of certain aspects of the interim reports is sued to the Parties on
7 February 2006. 166 None of the Parties requested an interim review meeting. 167 However, in
accordance with the Panel's Working Procedures, all Parties had, and used, the opportunity to submit
further written comments on each others' requests.168
6.3 On 8 May 2006, the Panel sent a letter drawing attention to the fact that certain aspects of its
interim reports had been misconstrued by grou ps or members of civil society following the
unauthorized public disclosure of the Panel's confidential interim reports.169 For this reason, the Panel
in its letter made a number of statements relating to its findings in this case.170
6.4 On 10 May 2006, the Panel issued its final reports to the Parties on a confidential basis.
B. STRUCTURE
6.5 The Panel first addresses the Parties' requests for changes to the interim reports
(Section VI.C). The Panel notes in this regard that it did not receive comments on each of the
Sections of the interim reports from each of the four Parties. The Panel has structured its treatment of
the Parties' requests below in the following manner:
(a) Section VI.C.1 concerns Section VII.A of the interim reports (Procedural and Other
General Matters).
(b) Section VI.C.2 concerns Section VII.C of the interim reports (Relevant EC Approval
Procedures).
(c) Section VI.C.3 concerns Section VII.D of the interim reports (General EC
Moratorium).

166 Letters of the Parties of 17 March 2006.
167 Letters of the Parties of 7 March 2006.
168 Letters of the Parties of 19 April 2006.
169 See infra, Section VI.F.
170 Letter of the Panel of 8 May 2006. In the interests of transparency, the text of the letter is attached
to these reports as Annex K (available on-line only). The text of the letter is reproduced in Annex K is not part
of the Panel's findings and is not intended to modify them in any way.

(d) Section VI.C.4 concerns Section VII.E of the interim reports (Product-Specific
Measures).
(e) Section VI.C.5 concerns Section VII.F of the interim reports (EC Member State
Safeguard Measures).
(f) Section VI.C.6 concerns Section VIII of the interim reports (Conclusions and
Recommendations).
6.6 In addition, this Section also notes certain other changes (editing, etc.) that were not
specifically requested by the Parties (Section VI.D).
6.7 Next, this Section deals with the European Communities' request for redaction from the
public version of the Panel reports of portions disclosing "strictly confidential information"
(Section VI.E).
6.8 Finally, the present Section addresses the public di sclosure of the Panel's confidential interim
reports (Section VI.F).
C. PARTIES'
 REQUESTS FOR CHANGES TO THE INTERIM REPORTS
1. Procedural and other general matters
6.9 The European Communities identified an incorrect re ference to the year 2005 at
paragraph 7.47.
2. Relevant EC approval procedures
(a) Comments common to Canada and Argentina
6.10 Canada and Argentina request that the hypothetical example used by the Panel at paragraphs
7.162-7.163, and footnote 132 (Canada) be qualified to avoid the possibility that its use may be
misconstrued. In these paragraphs, the Panel re lies on a hypothetical example (concerning food
labelling) to explain its interpretive approach to th e issue of mixed measures. Canada is concerned
that use of the hypothetical example could be misconstrued as the Panel expressing a view on the
purpose of Regulations 1829/2003 a nd 1830/2003, measures that were not within the Panel's terms of
reference. Argentina considers that the example is not an essential part of the Panel's reasoning and
could be removed without affecting the Panel's co nclusions. Moreover, in Argentina's view, the
Panel's reasoning finds practical application when the Panel addresses whether the EC approval
procedures are SPS measures in terms of their purpose.
6.11 The European Communities responds that it fails to see how this example could be
understood to refer to any "real life" measure such as Regulation 1829/2003 or to generally express
any views on the WTO-compatibility of such a measur e. Indeed, the Panel elsewhere in the report
explicitly states that it does not take any view on the WTO-consistency of labelling requirements.
Accordingly, the Panel need make no change to its report.
6.12 The Panel has removed the relevant example at paragraph 7.162 and deleted the old
footnote 132.

(b) Comments by Canada
6.13 Canada requests that the Panel reconsider its repres entation, at paragraph 7.164, of Canada's
position in relation to the issue of whether a re quirement can constitute both an SPS measure and a
non-SPS measure. Canada is concerned that the Pa nel's comments in footnote 127 suggest that the
Panel has misapprehended Canada's position in this regard.
6.14 The European Communities argues that Canada fails to state clearly what it is that it
requests the Panel to do. Presumably, Canada's c oncerns could be met if footnote 127 would be re-
phrased as follows:
"Canada had a more complex position and characterised the issue of whether a
measure that addresses both SPS risks and other types of risks or policy objectives
should be considered a single measure or a series of measures, as 'semantic'."
6.15 In response to Canada's comment, the Panel has expanded its representation of Canada's
position in footnote 339.
6.16 Canada identified an editorial oversight at paragraph 7.337.
6.17 Canada also notes that at paragraph 7.411 the Panel states that "it is reasonable to assume
that the requirement that the consumer be inform ed of the presence of a GMO irrespective of whether
there is an associated health risk is at least in part imposed to prevent consumers from being misled.
In other words, we consider that, at least in part , Regulation 258/97 requires the identification of the
presence of a GMO in a food product in order to ensu re that those consumers who have a preference
for food not containing or consisting of GMOs ar e not misled into purchasing food containing or
consisting of GMOs". Canada respectfully requests th at this passage be revised to make it clear that
the Panel is not making a finding that the absence of a GMO label necessarily leads to consumers
being "misled". According to Canada, the presence of a GMO label may have the opposite effect and
actually mislead consumers. In any event, Canada submits that whether consumers are actually being
misled is a factual matter that was not addressed by any of the parties in their submissions.
6.18 The European Communities considers that Canada's comment on the use of the word
"misled" must be dismissed. It is obvious that the Panel is merely referring to the wording used in
Regulation 258/97, which in its Ar ticle 3 explicitly refers to the objective of not misleading
consumers.
6.19 The Panel has added a footnote to paragraph 7.411 in response to Canada's comment.
(c) Comments by the European Communities
6.20 The European Communities argues that at paragraph 7.117 the third sentence should be
deleted as it is not correct that the Council can adopt a "different" measure. The Council may adopt a
modified measure, but not by qualified majority. In fact, the same rules as for legislative proposals
apply here, i.e., the Council can modify a Commission proposal only by unanimous vote (Article
250(1) of the Treaty Establishing the European Co mmunity as Amended by Subsequent Treaties
(hereafter the "EC Treaty"). Furthermore, for the sake of completeness, it seems appropriate to
describe what happens if the Council rejects the proposal.
6.21 The United States does not agree with the European Communities' suggested modifications
concerning paragraphs 7.117, 7.123 a nd 7.136. First, the record in this dispute does not contain an

instance where the Council rejected a Commission proposal. (Instead, the Council failed to reach
qualified majorities for acceptance or rejection). Thus, the Panel has no need for "sake of
completeness" to address this possibility. Second, the EC comments do not cite to any prior EC
submission that describes the procedures that apply when the Council rejects a Commission
proposal.
171 Thus, the procedures to be followed by the Commission following a Council rejection by
qualified majority would appear to be a new factual matter not previously considered by the Parties or
the Panel. For these reasons, the United States subm its that it is neither necessary nor appropriate to
address such procedures for the first time at the interim review stage.
6.22 The Panel has made appropriate changes to para graph 7.117 and its accompanying footnotes
in response to this EC comment. However, the Panel agrees with the United States that it is not
necessary, in the context of these proceedings, to address the procedures to be followed in the event
that the Council rejects a draft measure of the Co mmission. The Panel has therefore refrained from
adding relevant explanatory text at paragraphs 7.117, 7.123 and 7.136.
6.23 The European Communities submits that, for the sake of completeness in footnote 95 to
paragraph 7.123 it should be explained what happens if the Council rejects the proposal.
6.24 For the reason explained in connection with the EC comment on paragraph 7.117, the Panel
has refrained from making the requested addition to footnote 309.
6.25 The European Communities argues that at paragraph 7.129 the word "consent" should be
replaced by the word "authorizations", since "c onsent" is a term which is not used in
Regulation 258/97 but only in Directives 90/220 and 2001/18.
6.26 The Panel has made an appropriate change to paragraph 7.129 in response to this comment.
6.27 The European Communities submits that, at paragraph 7.136 the third sentence should be
deleted as it is not correct that the Council can adopt a "different" measure. The Council may adopt a
modified measure, but not by qualified majority. The same rules as for legislative proposals apply
here, i.e., the Council can modify a Commission proposal only by unanimous vote (Article 250(1) of
the EC Treaty). Furthermore, for the sake of comp leteness, it seems appropriate to describe what
happens if the Council rejects the proposal.
6.28 The Panel has made appropriate changes to para graph 7.136 and its accompanying footnotes
in response to this comment. However, for the reason explained in connection with the EC comment
on paragraph 7.117, the Panel has refrained from addressing the procedures to be followed in the
event that the Council rejects a draft measure of the Commission.
6.29 The European Communities identified a missing indefinite article in paragraph 7.152.
6.30 The European Communities requests that the Panel reflect, in a footnote to paragraph 7.199,
the fact that in its response to Panel question No. 120 the European Communiti es also referred to the
cover note accompanying the circulation of the so called "Dunkel Text" of 20 December 1990.
6.31 The United States argues that paragraph 7.199 addresses the EC arguments (properly rejected
by the Panel) that the SPS Agreement does not cover measures meant to protect the environment. The

171 In fact, the European Communities' comprehensive descriptions of its approval procedures set out in
its prior submissions do not address this matter. See, e.g., EC first written submission, pages 51-63; see also
Exhibits EC-119 and 120 (presenting a flowchart of approval procedures under 258/97 and 90/220).

United States does not agree that the Panel should include the new footnote suggested by the EC
summarizing an additional EC argument involving a cover note to the "Dunkel Text." The EC
arguments regarding this matter are set forth in the EC answer to the Panel's questions (in particular,
Question 120), and those answers are already appended in full to the interim report. Moreover, the
EC comment does not acknowledge that the United Stat es, in its response to the EC answer to Panel
question No. 120, fully responded to the EC argument regarding the purported significance of this
cover note to the "Dunkel Text". If a footnote were added that recited the EC argument, then – to
maintain balance – a new footnote would be required to reference the US rebuttal of the EC argument.
However, since all of this material is already a ppended to the report, and since (the United States
submits) the EC argument is without merit, the in terim report would not be improved by the addition
of the footnote suggested by the European Communities.
6.32 The Panel has made appropriate changes to paragraph 7.199 in response to this EC comment,
preferring to include the reference to the cover note in the text rather than in the footnote. For
balance, the Panel also added a summary of the United States' and Canada's responses to the EC
argument based on the negotiating history. Furthe rmore, in view of the European Communities'
request for inclusion of a reference to the a bove-mentioned cover note and in view of the EC
argument based on this note – that envir onmental damage is not covered by the SPS Agreement – the
Panel found it appropriate (i) to address explicitly th e cover note, which has also resulted in some
restructuring (paragraphs 7.209-7.211), (ii) to clarif y the example used at paragraph 7.210, and (iii) to
add footnote 503 for further clarification of paragra ph 7.209. In addition, the Panel has deleted the
old footnote 158 which contained no text. The Panel furthermore corrected a typographical error at
paragraph 7.209.
6.33 The European Communities argues that the first sentence of paragraph 7.236 should be
deleted as it does not seem to accurately reflect th e arguments made by the European Communities
and suggests that the second sentence be rephrased based on the EC reply to Panel question No. 119.
6.34 The United States does not agree with the EC suggestion. To the contrary, the United States
submits that this statement in the interim report is indeed a fair characterization of the EC's arguments
regarding the term "pest."
172 The United States would not object, however, if the interim report were
to include a statement, as the EC suggests, to the effect that the EC believes that the IPPC may be
relevant context for interpreting the term "pest."
6.35 The Panel has made appropriate changes to paragraph 7.236 in response to the EC comment.
6.36 The European Communities requests that a statement by Dr. Squire (Annex H, paragraph
468) be added to footnote 227 to pa ragraph 7.281 so that the view of all experts on the relevant issue
are referred to.
6.37 The United States does not agree with the EC suggestion that a statement from Dr. Squire
should be appended to the footnote. The statement of Dr. Squire cited by the European Communities
states no scientific opinion regarding the risks of AR MGs. Instead, in the context of discussing EC
member State objections, Dr. Squire simply notes that there is a "perception" that ARMGs should not
be used in herbicide-tolerant ("HT") crops. Moreover, Dr. Squire explains that given the vagueness of
the member State objections, he is not able to ev aluate their scientific merit. He accordingly
summarizes his opinion by explaining "[t]his not withstanding, and as in other instances, unless

172 See, e.g., EC second written submission, para. 51 ("Thus not any 'undesirable cross-breed', as the
Panel put it in question 32, can be considered a pest. In particular a cross-breed that harms biodiversity is not a
pest. Nor is cross-breed that harms micro-organisms, animals or the environment.").

criteria can be given, from both the proposer and objector as to what is a desirable or acceptable
comparator, then progress with the discussion is impossible, as it became in this instance."
173
6.38 Canada also disagrees with the suggested addition of Dr. Squire's comments in relation to
ARMG. The EC suggestion implies that Dr. Squire was of the view that ARMG presents risks to
human health or the environment, neither of whic h is the case. Tellingly, the European Communities
quotes Dr. Squire out of context. The full quote is as follows:
"The issue of antibiotic resistance was considered in the SCP's opinion (EC-66/At.53)
and found not to pose risk, but there is now widespread perception that antibiotic
resistance should not be introduced through GMHT products."
6.39 Canada submits that it is unclear whether Dr. S quire agreed with the opinion of the SCP on
the risks of antibiotic resistance. If Dr. Squire disagreed with the SCP, presumably he would have
stated so explicitly. Therefore, in terms of th e issue discussed by the Panel in paragraph 7.274, i.e.,
the risk of transferral of antibiotic resistance, Dr . Squire's comment is unrevealing. Dr. Squire does
not discuss "scientific evidence", but only "perception". The cause of the "widespread perception"
may have nothing to do with the actual risks associated with the use of ARMG and may simply reflect
the unfortunate politics of agricultural biotechnology in Europe. For instance, scientists working in
this field may have stopped using ARMG because of "optics", manipulated by anti-GMO advocates,
and the availability of alternative means to achieve the same objective. Canada notes that although
Dr. Squire initially indicated that he would do so , he did not respond to either of these two general
questions on the existence of scientific evidence re lating to the transfer of antibiotic resistance
(Questions 1 and 2). Consequently, his views on th e actual risks associated with the use of ARMG
are unknown.
6.40 Argentina likewise does not agree with the EC pro posal and requests the Panel to maintain
the wording of footnote 227 as it currently stands. It is important to recall that when the Panel
addressed to the experts the specific issue of "antib iotic resistance marker genes" (Annex H, General
Questions 1 and 2), Dr. Squire di d not provide an answer that expressed his point of view as an
expert. Additionally, Argentina points out that the addition suggested by the European Communities
reflects a mere "perception" (as it is literally stat ed by Dr. Squire) and not a statement or opinion
based on scientific evidence as requested by the Panel.
6.41 The Panel does not consider it appropriate to add the relevant statement to footnote 437. The
statement that "there is now a widespread pe rception that antibiotic resistance should not be
introduced through GMHT products" does not shed light on the risk of transferral of ARMG or the
existence or magnitude of adverse effects on human health or the environment from the presence of
ARMG or their products.
6.42 The European Communities requests that footnote 252 to para graph 7.316 be deleted in its
entirety, arguing that Canada's description of Directive 91/414 does not properly reflect the
requirements set by the legislation and the way th e legislation is implemented. The European
Communities submits that in any event, the Panel it self takes the view that the question of whether
Directives 90/220 and 2001/18 are applied, inter alia , to avoid diseases to humans or animals
resulting from herbicide residues in food or feedstu ff ultimately can be left open. The footnote,
therefore, is also not necessary.

173 Annex H, para. 468.

6.43 Canada disagrees with the EC suggestion to delete footnote 252. This footnote is important
context to explain the Panel's statement that "[i]t is not clear to us from reading Directives 90/220 and
2001/18 whether they are applied, inter alia, to avoid disease to humans or animals resulting from
herbicide residues in GM plants used as food or f eedstuff." In this footnote, the Panel sets out
Canada's argument that the European Communitie s failed to acknowledge that the risks associated
with the use of plant protection products, incl uding the risks to human and animal health from
herbicide residues in food and feedstuff, were a ddressed by other relevant EC legislation. Canada
pointed out that Commission decisions and scientific committees have repeatedly confirmed that "the
authorization of chemical herbicides applied to plants and the assessment of the impact of their use on
human health and the environment falls within th e scope of Council Directive 91/414/EEC of 15 July
1991 concerning the placing of plant protection pro ducts on the market…and not within the scope of
Directive 90/220/EEC."
174 Moreover, Canada emphasized that the herbicides used in conjunction
with herbicide tolerant crops, specifically glyphosate, had received a full evaluation under
Directive 91/414/EEC, including an assessment of th e use of glyphosate with glyphosate tolerant
crops, as early as 2001.175 In addition, the risks to human and animal health of residues of glyphosate
had been fully assessed prior to the establis hment of MRLs under Directive 98/82/EC. 176 T h i s
information is important in that it reveals that ma ny of the purported risk s associated with biotech
crops advanced by the European Communities are in fact risks associated with the use of plant
protection products generally, and that these risks, contrary to the European Communities' selective
portrayal of its own regulatory environment, have received a full assessment under other pertinent
legislation. On this basis, Canada is of the view that the footnote should be retained. That being said,
however, Canada suggests that the Panel clarify that MRLs are not established pursuant to
Directive 91/414/EEC, but, rather, pursuant to other relevant European Community rules.
177
6.44 The Panel considers that the old footnote 252 is not essential and has therefore deleted it as
requested by the European Communities.
6.45 Like Canada, the European Communities identified an editorial oversight at paragraph
7.337.
6.46 The European Communities requests that the Panel delete a sentence in paragraph 7.368
which it considers does not accurately reflect its position.
6.47 The Panel has deleted the relevant sentence in paragraph 7.368 in response to this comment.
6.48 The European Communities submits that the wording "even in cases where" in paragraph
7.384 should be deleted as it implies that aut horizations may be granted in either scenario, i.e., where
the product has been found to be safe and where the product has not been found to be safe. The latter
is not possible, as market authorizations are only gr anted if there is no risk to human health and the
environment.
6.49 Canada disagrees with the suggested alternative wo rding for paragraph 7.384. The wording
"even in cases where" does not imply that authori zations may be granted in cases where the product
has been found not to be safe. To the contrary, this wording highlights the fact that the labelling
requirement in Directive 2001/18 is applicable rega rdless of the conclusion of the risk assessment or
the actual risks associated with a particular biotech product. This emphasis is appropriate given the

174 Canada's second written submission, para. 142 and footnote 163.
175Ibid., para. 183 and footnotes 194 and 195.
176Ibid., para. 185 and footnote 196.
177 See ibid., para. 180.

Panel's inquiry in paragraph 7. 377 and succeeding paragraphs regarding whether the imposition of a
labelling requirement under these circumstances can be considered an SPS measure. Alternatively,
the Panel may wish to consider replacing "even in cases where" with "regardless of the fact that".
6.50 Argentina does not consider the proposed amendments to paragraph 7.384 to be acceptable.
Regarding the first proposed amendment, the Euro pean Communities is changing the scope and sense
of the first two sentences. It is cutting off the first sentence by adding a full stop after the word
"GMO", and thus linking the rest of it with the proposed amendment which Argentina considers not to
be acceptable. As to the second proposed amendment, the European Communities is giving no reason
for it (it only refers to the first one). Argentina notes that, the competent authorities have not granted
a market authorization even when the scientific evidence showed that the release was safe. Since the
European Communities' proposed description is not accurate, especially the word "therefore",
Argentina respectfully requests the original wording to be maintained.
6.51 The Panel has made appropriate changes to paragraph 7.384 in response to this EC comment.
6.52 The European Communities argues, with reference to the old paragraph 7.381, that it does
not agree with the Panel that the labelling requirement in Directive 2001/18 only serves the purpose of
protecting human health and the environment in the way the Panel has described it. This said, the
European Communities does not object to the statemen t that this is one possible purpose of labelling
and therefore bears a rational relationship. However, as, in the European Communities' view, it is not
the only purpose – the other one being consumer information – the European Communities submits
that the wording should be more "open" and th e last sentence should be deleted as it suggests
exclusivity of purpose. Finally, the European Co mmunities suggests to use the words "even though"
instead of "even in cases where".
6.53 The United States submits that the European Commun ities has no basis for its suggestion
that the Panel delete one of the most important sen tences in that section of the interim report: namely,
the concluding sentence to paragraph 7.381. That paragraph (and sentence) provide:
"The preceding paragraph makes clear that there is a rational relationship between the
labelling requirement in Directive 2001/ 18 and the purpose of protecting human
health and the environment, even in cases where a product containing or consisting of
a GMO has been found to be safe for human health and the environment.
Accordingly, we see no reason to assume that the labelling requirement is intended to
serve a purpose which is different from the purpose Directive 2001/18 says it seeks to
achieve, i.e., the protection of human health and the environment."
6.54 The United States contends that the European Communities' only basis for suggesting the
deletion of the last sentence in paragraph 7.381 is the assertion that the labelling requirement also
serves the purpose of "consumer information." However, the European Communities provides no
basis for this assertion, and does not, for example, c ite to any supporting provision of the Directive.
Indeed, as the Panel correctly notes, the labelli ng requirement is an integral requirement of
Directive 2001/18, and the very first article of that directive states that its objective is "to protect
human health and the environment." Thus, the European Communities has provided no basis in the
record for its suggested change to paragraph 7.381.
6.55 Canada also disagrees with the European Comm unities' proposed deletion of the last
sentence of paragraph 7.381. The Panel's conclusion that there is "no reason to assume that the
labelling requirement is intended to serve a purpose which is different from the purpose
Directive 2001/18 says it seeks to achieve, i.e., the protection of human health and the environment"

is a sound one given the text of Directive 2001/18 and the European Communities' own submissions
in this case. The Panel rightly points out that the only stated purpose of the Directive, other than
approximation of member State laws, is to protect human health and the environment. Moreover, the
European Communities did not refer to "consumer information" as an objective of Directive 90/220 or
2001/18 in its description of its legislative frame work set out in its first written submission,
paragraphs 155 to 163, or in its e xplanation of the flaws in Directiv e 90/220 that it claims needed to
be rectified by Directive 2001/18.
178 The European Communities' position has been that the new
labelling requirements in Directive 2001/18 were inte nded to strengthen post-marketing surveillance,
and not for "consumer information" purposes. C onsequently, the suggested change does not reflect
the position taken by the European Communities in these proceedings and should be disregarded.
6.56 Argentina considers that the first phrase of paragrap h 7.381 should remain unchanged. First,
as the European Communities indicates, the Panel do es not state in paragraph 7.380 that protecting
human health and environment "is the only" purpose. The Panel explicitly stat ed that the purposes in
Article 20 of Directive 2001/18 referred inter alia to situations described in paragraph 7.380, and
correctly describes to what extent the identificati on and labelling of GMOs contributes to some of the
purposes of Article 20. Second, both the described purposes of Article 20 in paragraph 7.380, and the
wording of Article 20 itself (especially paragraphs 2 and 3) explicitly refer to foreseen situations of
risks to human health and the environment. Co nsequently, Argentina cons iders that the wording
proposed by the European Communities ("can be") di minishes the real extent of these situations,
foreseen in Directive 2001/18/EC, and which are provided for with a specific procedure. The wording
proposed by the European Communities could be understood as envisaged for situations "merely
happening" to deal with human health and envi ronment, and would not express the clear purpose
stated in Directive 2001/18 referring to the sense of labelling.
6.57 Argentina submits, in addition, that from pa ragraph 7.379 the Panel seeks to identify the
rationale of labelling as set out in Directive 2001/ 18, and uses, among other provisions, Article 20.
The Panel did find a rationale and found it to be re lated with the purpose of protecting human health
and the environment. The European Communities states that there is another purpose, namely
consumer information. Argentina considers, as it be lieves the Panel to have done, that the purpose of
informing both the consumer and the authorities is not exhaustive in itself but also aimed towards a
proper handling of the information on the labelled product. Argentina acknowledges that there might
be a purpose for information related to what the Pa nel correctly recognized as "nice to know", or for
avoiding confusion about the produc t, but Argentina considers - and believes that the European
Communities would agree with this - that the pur pose of informing does serve another purpose, a
more important one than the answering to what is "nice to know" or avoiding confusion, directed to
the better management of risks should these occur a nd therefore related to what one "needs to know",
as the Panel said. Argentina considers that this far more important purpose than the one of mere
information with no subsequent purpose of action, should not be diminished.
6.58 Finally, Argentina argues that the Panel sought to find the rationale for labelling in order to
determine whether it relates to the protec tion against the risks established in the SPS Agreement. The
Panel found the rationale precisely "besides" the purpose of consumer information (assuming
arguendo the statement of the European Communities is correct in putting at the same level of
importance consumer information and information provided for risk management) and "within" the
same information (in order to make a further use of it -information is of no great value unless one uses
it for a purpose - for risk manage ment, as correctly established in paragraph 7.380). Therefore,
Argentina considers that it is proper to say that th ere clearly "is" a rational relationship between the

178 EC reply to Panel question No. 92.

labelling requirement and the purpose of protecting human health and the environment, and requests
that the original wording by the Panel be maintained.
6.59 The Panel has made appropriate changes to paragraph 7.389 in response to this EC comment.
The Panel also found it appropriate to make furthe r changes, or additions, in response to the EC
comment at paragraphs 7.385-7.389 and 7.391.
6.60 Regarding the EC assertion that the labelli ng requirement in Directive 2001/18 serves two
purposes – the protection of human health and th e environment, on the one hand, and consumer
information, on the other hand – we note that th e European Communities, in its comments on the
interim reports, does not put forward a single argumen t to substantiate its assertion. Nor does it
identify any evidence on the record which would supp ort the conclusion that consumer information is
one purpose for which the labelling require ment in Directive 2001/18 is applied.
179 We point out in
this regard that in its first written submission th e European Communities described the EC legislation
concerning the approval of biotech products in some detail, including Directive 2001/18. The
European Communities stated that Directive 2001/18 pursues the related but distinct objectives of
"protecting human health and the environment". Consumer information was not mentioned as an
objective of the Directive or of the labelling requirement contained therein.180
6.61 We further note that whereas Regulation 258/97 explicitly refers to the concept of "consumer
information" in the context of labelling181, neither the preamble nor the main text of Directive 2001/18
do. This is consistent with the fact that Direc tive 2001/18 is concerned with the deliberate release of
GMOs into the environment and not with food containing or derived from GMOs, Indeed,
Directive 2001/18 refers, not to final consumers of GMOs 182, but to "users" of GMOs (such as crop
farmers, or livestock farmers using GMOs for animal feed) 183. We also note that, unlike
Regulation 1829/2003 (on genetically modified food and feed) and Regulation 1830/2003 (concerning
the traceability and labelling of GMOs and the trace ability of food and feed produced from GMOs),
Directive 2001/18 does not refer to such concepts as "informed choice" of consumers, or users, or
"freedom of choice" of consumers, or users, in connection with its labelling provisions. 184 T h e
preamble to Directive 2001/18 merely states that la belling to indicate the presence in a product of a
GMO serves to "ensure that the presence of GM Os in products containing, or consisting of,
genetically modified organisms is appropriately identified". 185 This leaves unanswered the question
of why appropriate identification is sought. We therefore consider that the preamble to

179 It is worth noting that in its first written submission the European Communities described the EC
legislation concerning the approval of biotech products in some detail, including Directive 2001/18. The
European Communities stated that Directive 2001/18 pursues the related but distinct objectives of "protecting
human health and the environment". Consumer information was not mentioned as an objective of the
Directive or of the labelling requirement contained therein. EC first written submission, paras. 142-143.
180 EC first written submission, paras. 142-143.
181 Article 8(1) of Regulation 258/97.
182 In contrast, Article 8(1) of Regulation 258/97 concerning novel foods and food ingredients refers to
the "final consumer" of a novel food or food ingredient.
183 Articles 19(3)(f) and 20(2) of Directive 2001/18.
184 The preamble to Regulation 1829/2003 (on genetically modified food and feed) states that labelling
of biotech products enables the "consumer", or "user", to make an "informed choice" and precludes "potential
misleading of consumers" as regards methods of production (17 th, 20th and 21 st preambular paragraphs of the
Regulation). Along similar lines, the preamble to Regulation 1830/2003 (concerning the traceability and
labelling of GMOs and the traceability of food and feed produced from GMOs) states that accurate labelling of
biotech products enables operators and consumers to "exercise their freedom of choice in an effective manner"
(4
th preambular para. of the Regulation).
185 40th preambular para. of Directive 2001/18.

Directive 2001/18 does not assist in determining whether the labelling requirement serves the
additional purpose of consumer information.
6.62 Even if we were to accept, arguendo, that the relevant labelling requirement in
Directive 2001/18 could help processors of raw materials (e.g., rape seeds) to provide information and
assurances to the final consumer about their food products ( e.g., highly refined rape seed oils
produced from non-GM rape seeds) and in particular about their method of production
186 – for
instance by reducing the likelihood of accidental and unintentional use of GM raw materials (e.g., GM
rape seeds) – the fact remains that neither the preamble nor the main text of Directive 2001/18
contains any reference to "consumer information" as an objective of the Directive in general or its
labelling requirement in particular.187
6.63 We also find relevant in this connection th e provisions of Article 26 of Directive 2001/18,
which applies to GMOs subject to containment m easures (contained use) or to GMOs to be made
available for research and development activities. Like the GMOs which are for placing on the
market, the GMOs covered by Article 26 are subject to a requirement whereby the presence of GMOs
must be indicated on a label or in accompanyi ng documentation using the words "This product
contains genetically modified organisms". Given that the GMOs at issue in Article 26 are not
released into the environment for th e purpose of placing on the market, i.e., for making available to
third parties such as consumers we are of the view that the labelling requireme nt contained in Article
26 is not imposed for the purpose of "consumer info rmation", that is to say, for the purpose of
enabling consumers to make an informed choice and preventing potential misleading of consumers.
6.64 We recall that the requirement to identify th e presence of a GMO is exactly the same in the
case of contained use or release at the research stage (Article 26) and release for the purpose of
placing on the market. This circumstance, coupled with the fact that the labelling requirement
applicable in the situations envisaged in Article 26 is not, in our view, applied for "consumer
information" purposes, and that there is no indication in Directive 2001/18 that the labelling
requirement applicable to GMOs which are for placi ng on the market is imposed, at least in part, for
"consumer information" purposes, raises further doubt in our minds about the validity of the
unsubstantiated EC assertion that the latter labelling requirement is partly imposed for the purpose of
"consumer information".
6.65 Canada and Argentina submitted the Commission's 1996 Report on the Review of
Directive 90/220/EEC in the context of the Commission's Communication on Biotechnology and the
White Paper.
188 This Report was not submitted by the Un ited States or the European Communities,
but the European Communities referred to its content in very general terms in a response to a question
from the Panel.189 We note that the Report contains the following two paragraphs:
"The issue of labelling of products under Directive 90/220/EEC has been the subject
of controversy. Some Member State Aut horities object to the placing on the market
of a product whose labelling will not indicate that it is genetically modified. The

186 We note that some foods derived from GMOs – e.g., highly refined rape seed oils in which neither
DNA nor protein of GMO origin is detectable – are not subject to mandatory labelling under Regulation 258/97.
187 It is also useful to recall in this context that Directive 2001/18 applies to various kinds of products
containing, or consisting of, GMOs, including products not intended for human consumption, such as products
for industrial use (e.g., products for use as lubricants).
188 Exhibits CDA-119 and ARG-53.
189 EC response to Panel question No. 92(a). We note once more that the European Communities, in its
comments on the interim reports, did not substantiate its assertion regarding the purpose of consumer
information, and in particular pointed to no document in the record which would support its assertion.

current provisions of the Directive do not allow the imposition of such labelling in the
absence of any link to risk assessment. Sp ecific provisions on labelling are, however,
foreseen in product legislation.
It will be essential to address this issue in order to take into account the need to
inform consumers and to comply with the international obligations of the
Community. The issue of labelling will be considered when preparing the
amendment of Directive 90/220/EEC and the final provisions of other relevant
product legislation will be taken into account."
190
6.66 In the second of the two above-quoted paragra phs the Commission refers to the need for
consumer information, although without explaining why consumers need to be informed. 191 Even if it
were assumed that the Commission saw a need for "informing consumers" to ensure that consumers
could make an informed choice and to preclude potential misleading of consumers as regards methods
of production, it is important, in our view, to bear in mind the following elements. First, the
Commission is not the Community legislator. Directive 2001/18 was adopted by the European
Parliament and Council. 192 The views of the Commission do not necessarily reflect the views of the
European Parliament and Council. Indeed, the Repo rt of the Commission specifically mentions that
controversy surrounded the issue of labelling and that member States took divergent views on the
need for labelling to indicate the presence in a product of a GMO. Secondly, even disregarding the
fact that the Commission is not the Community legislator, we note that the Commission Report is
dated December 1996 and that Directive 2001/18 w as not adopted until March 2001. In our view, it
cannot simply be assumed that a statement made by the Commission more than four years before the
date of adoption of Directive 2001/18 accurately reflects the purpose of the provision actually enacted
on labelling. Finally, we recall that the phrase "inform consumers" did not find its way into the final
text of Directive 2001/18. Given this, we think it is entirely conceivable that a deliberate choice was
made by the Community legislator not to endorse th is particular rationale for requiring labelling to
indicate the presence in products of a GMO.
193 Certainly, the deliberate omission of the phrase
"inform consumers" cannot lightly be assumed to have no substantive meaning when the same
Community legislator (consisting of the European Parliament and Council) did use the phrase "inform
the final consumer" in Regulation 258/97 and incl uded very similar phrases in Regulations 1829/2003
and 1830/2003. The deliberate omission further seems significant in view of the fact that the same
Community legislator in Article 26 of Directive 2001/18 imposed an identical requirement to indicate
the presence of GMOs for GMOs that are not for plac ing on the market. As we have said, the Article
26 labelling requirement in our view is not imposed for "consumer information" purposes. For these
reasons, we consider that the link between the 1996 Report of the Commission and the 2001
Directive of the European Parliament and Council is not sufficiently close and direct to allow us to
conclude, without more, that the la belling requirement in Directive 2001/18 is applied, in part, for the
purpose of consumer information.

190 Exhibits CDA-119 and ARG-53, p. 9.
191 We recall that Regulation 258/97 and Regulations 1829/2003 and 1830/2003 explain why
consumers, or users, need to be informed.
192 The European Communities explained that Directive 2001/18 was adopted through the so-called
"co-decision" procedure which involves several rounds of reading in the European Parliament and Council and,
as a last resort, a reading in a conciliation committee. The European Communities told the Panel that the draft
Directive 2001/18 went through all these stages before it was finally adopted on 12 March 2001. EC first
written submission, para. 158.
193 It is worth recalling once more that the Report of the Commission itself draws attention to the fact
that the issue of labelling to indicate the presence in a product of a GMO had been the subject of controversy
among member States.

6.67 Additionally, we note that in response to a question from the Panel, the European
Communities referred to its 1998 proposal for a European Parliament and Council Directive amending
Directive 90/220.
194 Consistent with what the Commission announced in its 1996 Report, the
Commission proposal states that applications for approval are to contain a proposal for labelling
which shall inform the consumer of GMOs in the re levant product(s) "whenever there is evidence that
the product(s) contain(s) GMOs". 195 Thus, the 1998 Commission proposal proposes labelling to
inform consumers about whether pr oducts contain or consist of GM Os. It does not propose labelling
to help inform consumers a bout whether products which do not contain or consist of GMOs have
nonetheless been produced from GMOs ( e.g., highly refined rape seed oils produced from GM rape
seed). Regarding the link between the 1998 Commi ssion proposal for an amended Directive and
Directive 2001/18, we are of the view that the consid erations we have put forward regarding the 1996
Report are valid, mutatis mutandis, also in the case of the 1998 proposal for an amended Directive. In
particular, it must be recalled (i) that the Commission is not the Community legislator, and (ii) that the
proposed phrase "inform the consumer" does not appear in the final, adopted text of
Directive 2001/18. In respect of the last point, we again highlight the fact that the Community
legislator did use the phrase "inform the final consum er" in Regulation 258/97 and that it used very
similar phrases in Regulations 1829/2003 and 1830/2003. As we have said, the omission of the
phrase "inform the consumer" further seems significan t in view of the existence of Article 26 of
Directive 2001/18. Accordingly, as with the 1996 Repor t of the Commission, we are of the view that
the link between the 1996 Report of the Commission and the 2001 Directive of the European
Parliament and Council is not sufficiently close and di rect to allow us to conclude, without more, that
the labelling requirement in Directive 2001/18 is applied, in part, for the purpose of consumer
information.
6.68 In the light of the above elements and consider ations, we are not convinced by, and therefore
are unable to accept, the European Communities' unsubstantiated assertion in its comments on the old
paragraph 7.381 of the interim reports that the re levant labelling requirement in Directive 2001/18 is
applied, in part, for the purpose of consumer information.
6.69 The European Communities suggests a change to the wordi ng of paragraph 7.383 to clarify
what "otherwise" refers to.
6.70 Canada argues that the Panel should reject the Eu ropean Communities' suggestion to change
"otherwise" to "that there is no such rational rela tionship" in the second sen tence. The suggested
modification changes the meaning of the sentence, which Canada understands to be that nothing in the
record suggests that the labelling requirement in Directive 2001/18 is related to any purpose other
than protecting human health and the environment.
6.71 Argentina also does not consider this change to be appropriate. Regarding the replacement
of the word "is", the suggestion by the European Communities undermines even more the findings of
the Panel: for paragraph 7.381 the European Comm unities proposed "can be", and now it proposes
"may be" for paragraph 7.383, which provides for an even lower level of certainty. Such a change
would alter the Panel's reasoning to such an extent as to create confusion as to whether the objectives
derived from Directive 2001/18 should be consider ed as "SPS-purposes" or not. The Panel has
correctly found a clear and easy rationale, which li nks the labelling requirement in Directive 2001/18
with the purpose of protecting human health and e nvironment. The European Communities is trying

194 EC reply to Panel question No. 92(a). The European Communities did not submit this proposal, but
in a footnote to its reply provided a reference to the Official Journal of the European Communities, where the
proposal may be found.
195 Article 11(2)(e) of the proposal.

to find an "open door" out of the SPS Agreement, even when the specific purpose of protecting human
health and the environment was found and stated. For these reasons, Argentina considers that the
word "is" should remain unchanged.
6.72 About the replacement of the word "otherwi se", Argentina does not consider it acceptable
either, because it also undermines the level of certa inty. Should the EC pr oposal be accepted, the
resulting text would suggest that the rational rela tionship of the labelling requirement with an SPS-
purpose was found by the Panel simply "by exclusion" . Consequently, Argentina considers that the
original word "otherwise" should remain, because it clearly establishes that there is nothing which
might lead the Panel to depart from its finding (and not that the Panel came to that finding because it
had no other choice).
6.73 The Panel has made certain changes to paragraph 7.391 in response to the EC comment on
the old paragraph 7.381. This change obviates the need for the change requested by the European
Communities in relation to the old paragraph 7.383.
3. General EC moratorium
(a) Comments common to the United States, Canada and Argentina
6.74 The Complaining Parties individually request that the Panel issue a recommendation that the
European Communities bring its general moratorium into conformity with its obligations under the
SPS Agreement. The Complaining Parties assert that the Panel's analysis of this issue did not take
account of all relevant factors and that the general moratorium which the Panel found to have existed
in August 2003 did not cease to exist after August 2003. The Complaining Parties submit that the
factors cited by the Panel as justifying the need for it to make findings in this case also justify the
need for a recommendation. Furthermore, the Compla ining Parties contend that the failure to make
such a recommendation could be prejudicial to their in terest as complaining parties. They argue that
in the absence of a recommendation with regard to the general moratorium, the European
Communities (should it fail to come into compliance) may try to argue that the Complaining Parties
should be denied recourse to Article 21.5 of the DS U, and should be required to bring an entirely new
case to examine a modified general moratorium. Ca nada notes that, in contrast, with regard to the
product-specific measures and member State sa feguard measures, Canada would (should the
European Communities fail to come into compliance) have recourse to Article 21.5 of the DSU.
According to Canada, this procedural bifurcation of the dispute would make it harder for the Parties to
reach a positive resolution of the overall dispute. Th e Complaining Parties additionally argue that if
the Panel were to add a recommendation to its finding that the general moratorium is inconsistent with
the SPS Agreement, it would not add to the obligations, or diminish the rights, of the European
Communities in any way. Canada points out in this regard that the Panel could recommend that the
European Communities bring its measures into conformity with its WTO obligations "to the extent
that it has not already done so".
6.75 The European Communities opposes the Complaining Parties' propositions, which, in its
view, are unfounded and must be dismissed. More specifically, the European Communities notes that
Canada accuses the Panel of having made a selective and limited assessment of the developments that
have taken place after its establishment. The Euro pean Communities submits that what Canada is
attacking, in reality, is that on the basis of the Panel's characterization of the measure, one fact –
namely that of approvals being adopted – matter ed more than any other for the question of a
continued existence of the measure. Thus, f undamentally, Canada is challenging the Panel's
characterization of the measure as a general "morator ium" affecting all decisions on biotech products.
If that was not the measure that Canada intended to challenge, it should have made it clear in its

request for the establishment of a Panel and its submi ssions to the Panel. What Canada or the other
Complaining Parties cannot seriously claim is that a situation in which decisions on GMO
applications are adopted under the relevant legisl ation would be consiste nt with the continued
existence of a general "moratorium".
6.76 The European Communities further notes that notab ly Argentina alleges that the Panel lacks
jurisdiction to find that the supposed measure has ceased to exist. The European Communities points
out that the question of whether a panel has jurisd iction to find whether the measure before it has
ceased to exist, in practice, has not, generally spea king, been an issue in past disputes, since the
parties, in most cases, actually agreed that the measure had ceased to exist. This said, in the case US –
Certain EC Products the parties did disagree on the continued existence of the March 3 measure and
the panel naturally assumed jurisdiction to rule th at that measure had expired (while refusing to
assume jurisdiction over the legally distinct measure of April 19th). More generally, however, the
European Communities submits that the Panel has jurisdiction because it is its task to secure a
positive solution to the dispute according to Article 3. 7 of the DSU. It follows necessarily that the
Panel cannot simply ignore subse quent developments that affect the existence of the measure
identified in its terms of reference. If it did ot herwise, it would leave open the fundamental question
underlying these disputes and, as a result, the Panel would fail to produce a report that actually helps
all the Parties to come closer to a final and positive solution.
6.77 In relation to the issue of whether there is a need for a recommendation, the European
Communities observes at the outset that the Appellate Body's ruling in US – Certain EC Products
regarding measures that have ceased to exist does not leave any open question. If a measure has been
found to have ceased, no recommendation is to be made.
196 The European Communities notes that in
contrast, the general gist of the Complaining Partie s' arguments on this issue is to move all issues
relating to subsequent developmen ts regarding a challenged measure to the implementation stage and
to treat them there as a question of whether or not a Member has brought itself into full conformity
with its obligations. This approach ignores a pane l's duty to secure a positive solution to the dispute,
which obliges it not to refuse to rule on issues it ha s the ability to rule on. Furthermore, in basing
their arguments on due process and on the necessity of preventing "moving target" situations, the
Complaining Parties overlook that these considerations also apply to the responding party. Indeed, in
trying to secure a positive solution to the dispute a pa nel needs to take into account either side's due
process rights. In the present case, the absence of a recommendation on the alleged moratorium does
not deprive the Complaining Parties of the possibilit y to react to possible problems in the processing
of pending applications as they have findings and recommendations on individual product
applications. A recommendation on a "general moratorium" that may or may not have ceased to exist,
on the other hand, would inadmissibly require the European Communities to defend itself against the
moving target of a measure that the Complaining Parties refuse to define.
6.78 On the basis of these considerations, the Europ ean Communities is of the view that the Panel
should refuse the Complaining Parties' requests to change its finding that the "general moratorium"
measure has ceased to exist and should not issue a recommendation.
6.79 The Panel found it acceptable to make a number of changes to its findings set out at
paragraphs 7.1302 et seq. in response to the requests of the Comp laining Parties. In particular, the
Panel's final reports refrain from expressing a vi ew on whether the general EC moratorium on
approvals has ceased to exist subsequent to the da te of establishment of the Panel. Furthermore,
Section VIII of the final reports now offers a qua lified recommendation in relation to the general EC

196 The European Communities argues that this has been recognised by Canada in its third written
submission at para. 197.

moratorium on approvals, except for DS293 (Arg entina). The exception for DS293 is necessary
because in DS293 the Panel concluded that Argentin a had failed to establish that the European
Communities breached its WTO obligations by appl ying a general moratori um between June 1999
and August 2003. Given this c onclusion, it would not be appr opriate for the Panel to accept
Argentina's request that it recommend that the Eu ropean Communities bring the general moratorium
into conformity with its obligations of the SPS Agreement. Even a qualified recommendation would
be inappropriate in these circumstances.
6.80 Regarding the European Communities' argument based on Article 3.7 of the DSU, the Panel
agrees that a positive solution to a dispute is one th at takes into account all disputing parties' rights
and interests. In the present case, the Panel c onsiders that a qualified recommendation in DS291 and
DS292 safeguards and preserves the rights and interests of all Parties concerned and hence is
consistent with the aim of securing a positive solution to the dispute referred to the Panel. The Panel
is not convinced by the European Communities' argument that a qualified recommendation would
"require the European Communities to defend itself against the moving target of a measure that the
Complaining Parties refuse to define". In f act, the European Communiti es itself acknowledges that
the Panel has defined the measure at issue
197. Nor does making a qualified recommendation "leave
open the fundamental question underlying these disputes". 198 Indeed, the Panel's findings and
conclusions resolve the matter referred to it by the Complaining Parties in their requests for the
establishment of a panel, namely, whether the European Communities was applying a general de facto
moratorium on approvals as of the date of establishmen t of the Panel, and if so, whether this resulted
in the European Communities acting inconsistently with its WTO obligations.
6.81 The Panel also sees no force in the EC argument th at the provisions of Article 3.7 "oblige[] it
not to refuse to rule on issues it has the ability to rule on". 199 The European Communities provides no
support for this interpretation of Ar ticle 3.7. If, as the European Communities contends, panels were
under an obligation to rule on all issues they have the ability to rule on, they would not be entitled to
exercise judicial economy. Yet it is a well established point of WTO jurisprudence that, subject to
certain limitations, panels are entitled to exercise judicial economy.
200
6.82 Additionally, we observe that even if we were to accept that, in the present case, the issue of
whether the general EC moratorium has ceased to exis t subsequent to the date of establishment of the
Panel is an issue we have the ability to rule on, we consider that in view of the findings and
conclusions already offered by us a ruling on this issue would not be necessary to enable the DSB to
make sufficiently precise recommendations to the European Communities.
6.83 The above-mentioned changes made by the Panel obviate the need for other changes
requested by the Complaining Parties in their comments ( e.g., the United States' request that the Panel
further clarify a finding that is no longer contained in the final reports).
(b) Comments by Canada
6.84 Canada submits that, at paragraph 7.460, the Pa nel appears to have omitted one manner in
which the Commission could prevent or delay approvals. According to Canada, a third possible
manner arises from the fact that the Commission could fail to adopt, or delay the adoption of a
proposed decision to approve, an application following the failure of the Council, within 90 days of its

197 EC comments on the Complaining Parties' comments, paras. 7 and 16.
198 Ibid., para. 24.
199 Ibid., para. 37.
200 Appellate Body Report, Canada – Wheat Exports and Grain Imports, para. 133.

referral to the Council, either to adopt, or to in dicate by a qualified majority that it opposes, the
proposed decision. Canada argues that while th is scenario might be less likely given that the
Commission would have signalled its determination to push a product application to a final approval
by putting it before the Council, a severely divide d Council might influence the Commission's resolve
to take the further step of approving the pr oduct itself in the face of the attendant political
controversy.
6.85 The European Communities does not agree with Canada's comment on the alleged third
manner in which the Commission could prevent or delay approvals. Apart from the fact that the
approach described would be illegal under the relevant EC legislation, it is of no relevance in the
present case. The Complaining Parties have not descr ibed, or put forward evidence of, any instance
where it would have been employed to give effect to the alleged moratorium.
6.86 The Panel does not find it appropriate to make a change to its findings in response to
Canada's comment. The Panel's findings clearly stat e, at paragraph 7.465, that the issue the Panel
considers in the relevant sub-section is whether it was possible for EC member States and the
Commission to prevent or delay approvals of biotech products "in the manner alleged by the
Complaining Parties". Canada points to no portio n of its submissions where it alleged that the
Commission prevented or delayed approvals by not adopting a draft measure following a failure of the
Council to act.
201 At any rate, the information on the re cord does not indicate that the situation
described by Canada ever arose in any of the approval procedures at issue in this dispute.
6.87 Canada submits that at the old paragraph 7.1303, the date of August 2003 is incorrect. At
that time, the Commission had not yet approve d NK603 maize for animal feed and industrial
processing. The Commission finally adopted a deci sion approving this app lication on 19 July 2004,
following the refusal by the member States, both at the Regulatory Committee and Council levels, to
support its approval. As far as Canada is aware, ther e is no record of the lead CA (Spain) issuing the
letter of consent.
6.88 The Panel removed the relevant statement, but re tained a modified version of paragraph
7.1303.
(c) Comments by Argentina
6.89 Argentina considers that the phrase "as described by Complaining Parties" at paragraph
7.448 does not reflect integrally the whole characte rization set forth by the Complaining Parties when
they described the measure at issue and that it w ould therefore be more accurate for the Panel to
consider removing the aforementioned phrase. At the same time, Argentina notes that it is not
objecting to the elements pointed out by the Panel.
6.90 The Panel has made appropriate changes to paragraph 7.456 in response to this comment.
(d) Comments by the European Communities
6.91 The European Communities argues that, the word "main" should be deleted in paragraph
7.448 as it could create confusion as it leaves open what other elements there might be. Alternatively,
the Panel could state what the other elements are. Moreover, in the European Communities' view,
different wording should be used in the last bullet point to reflect the fact that a final decision can also
be negative in nature and does not necessarily have to lead to approval.

201 Indeed, Canada makes no such allegation at para. 27 of its first oral statement, for instance.

6.92 Argentina disagrees with the first amendment pr oposed by the European Communities,
namely, the deletion of the word "main", and recalls its comment on this paragraph. The deletion of
the word "main" would imply a fu rther move away from the description of the measure given by the
Complaining Parties. Under the European Communi ties' proposal wording would be: "The elements
which characterize the moratorium as described by the Complaining Parties are the following [...]".
In other words, through this suggested wording there would be stated not only a closed set of elements
which characterizes the moratorium, but also that this is a description supported by the Complaining
Parties. In this sense, Argentina proposes that the Panel consider the following options: (a) the
deletion of the terms "described by the Complaining Parties" as it was previously suggested; or (b)
the deletion of "main" and "described by the Compla ining Parties" plus the addition of a footnote to
paragraph 7.448 clarifying the particular description supported by the Complaining Parties, in this
case by Argentina.
6.93 The Panel has made appropriate changes to paragraph 7.456 in response to this EC comment.
The Panel did not see a need to use different wording in the last bullet point.
6.94 The European Communities submits that, in paragraph 7.457, the first sentence, including
the accompanying footnote, needs to be deleted as it does not accurately reflect the position of the
European Communities. The sentence implies that the European Communities has taken a position on
the issue of "ability to prevent approvals", which is not the case. The issu e was never discussed as
such. To the extent the European Communities t ook a position on the individual steps identified by
the Panel, this was done not from a perspective of a so-called "ability to prevent" but to explain the
different procedural steps set out in the legisla tion (which has not been challenged). The European
Communities points out that the footnote is repeated almost verbatim in paragraph 7.462. The
European Communities submits that a new footnote be added at the end of this paragraph in order to
refer to the EC second submission where the argument on internal decision-making process is made.
6.95 The United States does not agree with the EC suggestion that the Panel should delete the first
sentence of paragraph 7.457, which provides that "[t]he European Communities does not contest that
it had the ability to prevent approvals of biotech products in the various ways identified by the
Complaining Parties." To the contrary, this statemen t is important in the context of the dispute, and
completely accurate. Even though the issue of wh ether the European Communities adopted a general
moratorium on biotech approvals was central to th e case, the European Communities in fact did not
contest that EC member States and the Commission ha d the ability to block final decisions on biotech
applications. Indeed, the European Communities provided no citation to any prior EC arguments
where it did contest this proposition, nor is the Un ited States aware of any such arguments in the
European Communities' oral or written submissions. Instead, all the European Communities can do is
to imply that it never conceded the issue. But, whether or not the European Communities
affirmatively conceded the issue is beside the point: the first sentence of paragraph 7.457 is
completely accurate in noting that the European Communities did not contest that the Commission
and member States had the ability to block final decisions on biotech products.
6.96 Canada also disagrees with the EC suggestion. As Canada understands it, the Panel's point is
not that the European Communities expressly admitte d that it had the ability to prevent biotech
approvals in the manner identified, but that th e European Communities did not deny that it was
possible under the EC regulatory system for biot ech approvals to be prevented in the manner
identified by the Complaining Parties.
6.97 Argentina likewise does not agree with the deletion of something that constitutes a finding
by the Panel. In Argentina's view, it does not refer to any alleged position by the European
Communities, but to the fact that the European Communities did not contest this issue.

6.98 The Panel has deleted the first sentence of paragr aph 7.465 and the accompanying footnote,
but sees no reason to add a new footnote at the end of the paragraph.
6.99 The European Communities considers that the last bullet point in paragraph 7.459 requires
some clarification as the step identified therein does not exist under Regulation 258/97. Moreover,
the second sentence in footnote 351 should be deleted, as it seems entirely unnecessary. At the same
time, it would seem necessary to point out that these very same steps may be taken for wholly
legitimate (scientifically justified) reasons.
6.100 Canada has no objection to the European Communities' proposed revision of the text of
paragraph 7.459. However, in relation to the foot note, given the Panel's finding that "despite a clear
legal obligation to give written consent […] France w ithheld its consent and thus did what was within
its power to prevent these pr oducts from being approved",
202 it hardly seems inappropriate for the
Panel to point out that the acts and omissions of the European Communities might be inconsistent
with the European Communities' own internal law. Canada submits, in addition, that the suggested
addition to footnote 351 is unnecessary and should be disregarded. The question is not whether any
of the identified methods employed by the EC memb er States to give effect to the moratorium
"necessarily" reflects an intention to prevent or de lay final decision, but whether in this case EC
member States employed these methods to prevent final approvals.
6.101 Argentina believes that the addition in footnote 351 proposed by the European Communities
would be misleading and should not be accepted. Th e Panel is referring to situations in which the
member States have the ability to prevent or delay, with no further reference to the intention of the
member States. Furthermore, to say in footnote 351 that there "might be no intention" of delaying or
preventing, as the European Communities suggests, is certainly contradictory with the Panel's
statement in paragraph 7.459, especially since point (b ) refers to "objections", point (c) refers to an
acting "blocking minority", and point (d) refers to a "refusal" to give consent. All these points refer to
situations in which member States do act on purpose, hardly "by accident" or "with no intention".
The EC observation to footnote 351 would undermin e the sense of paragraph 7.459 as correctly
expressed by the Panel. Consequently, Argentina requests this suggested addition not to be accepted.
6.102 The Panel has made appropriate changes to paragraph 7.467 in response to this EC comment.
The Panel has also deleted the second sentence of fo otnote 574, but does not find it appropriate to add
the sentence suggested by the European Communities.
6.103 The European Communities considers that paragraph 7.462 requires some clarification as
the scenario identified therein does not exist under Regulation 258/97.
6.104 The Panel has made appropriate changes to paragraph 7.470 in response to this comment.
6.105 The European Communities contends that the date referred to in paragraph 7.500 should be
31 August 2005 and not 1
 September 2005 as the application concerning RR oilseed rape (EC-70) was
approved on 31 August 2005.
6.106 The Panel has made appropriate changes to paragr aph 7.508 in response to this comment,
noting that it was the EC letter of 1 Septembe r 2005 which suggested the 1 September 2005 approval
date.

202 Interim Reports, paras. 7.1015 and 7.2197.

6.107 The European Communities submits that the last two sentences of paragraph 7.501 should
be deleted as the Panel's assertion that the Eur opean Communities never submitted information on
MON863 is not correct. Exhibit EC-106 is a status report on the application for MON863, which is
actually a hybrid (MON863 x MON810). In the EC first written submission, at paragraph 335, the
application was identified as Monsanto Maize with the right application number (C/DE/02/9), but
unfortunately contained an err oneous reference to the hybrid event in question (MON810 x NK603
instead of MON863 x MON810). The Panel itself, in paragraph 7.542 seems to have correctly
identified the application. Furthermore, from para graph 7.543 it can be inferred that the Panel was
fully aware of the fact that the application concerned MON863 x MON810.
6.108 Canada agrees with the European Communities that the confusion arising from the European
Communities' mislabelling of the application fo r the maize hybrid MON863 x MON810 (C/DE/02/9)
is indeed unfortunate. Canada also agrees th at some information concerning MON863 maize was
submitted to the Panel. Specifically, Canada su bmitted as evidence the scientific opinions conducted
by the European Food Safety Authority (EFSA) for MON863 maize (resistance to certain coleopteran
insects) and the hybrid product MON863 x MON810 (resistance to certain lepidopteran insects),
dated 2 April 2004. Two opinions were issued , one under Directive 2001/18 and the other under
Regulation 258/97, and were submitted as Exhi bits CDA-35-O (2 April 2004) and CDA-35-P
(2 April 2004), respectively. Canada also agr ees with the European Communities that the Panel's
discussion in paragraph 7.542 of the application fo r maize (Exhibit EC-106) and of the novel food
application in paragraph 7.543 appears to relate to the applications submitted under Directive 2001/18
and Regulation 258/97 to the competent German authorities for MON863 maize and its hybrid
MON863 x MON810. Furthermore, rather than dele ting the text in paragraph 7.501 as proposed by
the European Communities, Canada suggests modifying the text to reflect the Panel's conclusions in
paragraphs 7.542 and 7.543 that the Panel does not consider that the information supplied by the
European Communities in respect of these applications is sufficient to support the inference that no
general moratorium on final approvals was in effect before or in August 2003.
6.109 The Panel is not convinced by the European Co mmunities' assertion that the application
concerning MON863 maize was actually an appli cation concerning a hybrid product, namely, MON
863 x MON810 maize. The European Communities point s to no evidence on the record in support of
its assertion.
203 As we have noted, the European Co mmunities itself distinguishes between the
application concerning the parental line MON863 ( see EC reply to Panel question No. 91) and the
hybrid MON863 x MON810 ( see EC first written submission, para graph 335 and Exhibit EC-106).
We note that in its submissions the European Co mmunities mentioned the same reference C/DE/02/9
when referring to MON863 maize and MON863xM ON810 maize. However, the European
Communities does not argue that this constitutes conc lusive proof that the products are one and the
same. At any rate, it has never been suggested to us by any Party that under Directive 2001/18 it
would not be possible to submit a single applicati on covering two distinct, but related, biotech
products. In the light of the foregoing considerations , the Panel declines the EC request to delete the
last two sentences of paragraph 7.501. In res ponse to Canada's comment, the Panel has added a
reference to Exhibits CDA-35-O and -P in footno te 398 and made appropriate consequential changes
to paragraph 7.509. The Panel does not agree with Canada, however, that paragraphs 7.550 and 7.551
relate, inter alia , to applications submitted under Di rective 2001/18 and Regulation 258/97
concerning MON863 maize. These paragraphs relate to applications concerning the hybrid maize

203 We note in passing that in relation to its comment on para. 7.500 regarding the correct approval date
in the case of RR oilseed rape (EC-70), the European Communities indicated where in the Official Journal of the
European Union the relevant Commission decision may be found. The European Communities did not give the
corresponding reference to the Official Journal for the Commission decision concerning MON863 maize.

MON863 x MON810, which is consistent with the fact that both Exhibit EC-106 and paragraph 337
of the EC first written submission refer exclusively to the hybrid maize MON863 x MON810.
6.110 The European Communities identified incorrect sub-para graph numbering in paragraphs
7.516 through 7.523.
6.111 The European Communities considers that the term "consis tent with" in paragraph 7.544
should be qualified given that in the analysis then following the Panel identifies very diverse kinds of
situations. Indeed, in some cases, such as for exampl e in the case of the transgenic potato, the Panel
discusses alternative explanations which it consider s possible for a given act or omission, but then
concludes anyway that the facts are consistent w ith the assertion that a moratorium existed. Such
conclusions only make sense if "c onsistent with" can be read to mean "neither supports nor
contradicts". The European Communities therefor e suggests that the Panel add a new sentence to
paragraph 7.544 to explain the meaning of the term "consistent with".
6.112 The United States does not agree with the EC suggestion that the Panel should add the
following underlined sentence in the middle of paragraph 7.544:
"In the remainder of this Subsection, th e Panel will examine all other relevant
applications with a view to determini ng whether they are consistent with the
Complaining Parties' contention that during the relevant time period (October 1998 to
August 2003) the European Communities app lied a general moratorium on final
approvals. By 'consistent with' we do not necessarily mean to say that the facts
support the Complaining Parties' contenti on, but that they do not contradict it. The
structure of this examination reflects the arguments of the Complaining Parties. More
specifically, the Panel's examination is stru ctured according to the acts and omissions
through which, in the Complaining Partie s' view, the European Communities gave
effect to the alleged general moratorium on approvals. The Panel will first address
applications submitted under Directives 90/220 and/or 2001/18. Thereafter, the Panel
will address applications submitted under Regulation 258/97."
6.113 In the United States' view, the European Communities' suggested gloss on the term
"consistent" reflects a misunderstanding of the Panel' s mode of analysis. In the remainder of the
subsection, the Panel shows how dela ys in processing individual appli cations were consistent with a
moratorium, even though for certain applications other explanations for delays might have been
possible. All such evidence indeed supports the Co mplaining Parties' contentions: in particular, it is
cumulative with all of the other evidence submitted by the Complaining Parties showing the existence
of a general moratorium, and it further shows th at the European Communities was incorrect in
asserting that the application histories proved that no such moratorium ever existed. Thus, the
suggested addition is incorrect, and should not be included in the final report.
6.114 Canada also disagrees with the suggested qu alification for "consistent with" in
paragraph 7.544. The qualification changes the Pane l's findings in relation to the facts and history of
relevant applications. Ca nada recalls that, in this section of the interim report, the Panel examines
whether the approval procedures for relevant applications "confirm" that certain member States and/or
the Commission did in fact prevent the final approva l of applications in the manner identified by the
Complaining Parties.
204 The Panel examines whether the history of relevant applications supports (or
"confirms") the Complaining Parties' claim th at the European Communities imposed a general
moratorium on final approvals or supports (o r "confirms") the European Communities' opposing

204 Interim Reports, para. 7.533.

assertion that "[t]he processing of individual app lications continued with out interruption, and
applications were not systematically stalled."
205 Given that the very purpose of the examination is to
determine which of the competing theories is supp orted by the facts, it would be nonsensical to
specify "consistent with" as meaning "neither supports nor contradicts".
6.115 Canada submits, in addition, that the European Communities points to one example
(transgenic potatoes, paragraphs 7.664 to 7.668) where the Panel does not categorically reject the
European Communities' alternative explanation for the Commission's failure to forward a draft
measure to the Regulatory Committee and yet sti ll finds that facts are "consistent with" the
Complaining Parties' claim that a moratorium had been put in place. This appears to be the only
application history that could be "consistent with " both competing theories. In order to avoid any
potential confusion, Canada invites the Panel to clarify that "consistent with" as used in
paragraph 7.544 means "supports" or "confirms" and to clarify whether the transgenic potatoes
application supports the Complaining Parties' claim, the European Communities' competing theory, or
is inconclusive.
6.116 Although Argentina could agree that the words "whether they are consistent with" might be
clarified, Argentina does not believe that the add ition proposed by the European Communities will
reflect what the Panel did analyse and conclude, as stated in paragraphs 7.548, 7.758 and 7.997,
namely, the conduct of the Commission and the member States. When analysing these conducts, the
Panel found, among others issues, that there was an interaction between the Commission and some
member States
206, from which the Panel derived the "cons istency" of the conducts with the
Complaining Parties' assertion about a "de facto" moratorium.
6.117 Additionally, Argentina does not believe th at the addition proposed by the European
Communities would be clarifying. On the contrary, th e expression "but that they do not contradict it"
seems to be both soft and too incomplete. The c onsistency of the findings regarding the conduct of
the Commission and of some member States does not simply "not contradict" the Complaining
Parties' assertions, since they deal with calculate d and intended acts, but, on the contrary, do support
Argentina's assertion and it is in this sense that the Panel has made these findings. Consequently,
Argentina considers that the European Communities' proposed addition will diminish the sense of the
word "consistency", as used by the Panel in its findings.
6.118 The Panel considers that the phrase "consistent with" at paragraph 7.552 is sufficiently clear
and therefore does not find it necessary or appropriate to add the sentence suggested by the European
Communities. Nonetheless, for greater clarity, the Panel has included a dditional language at
paragraph 7.552. In relation to the approval procedure concerning th e Transgenic potato, the Panel
has deleted the old paragraph 7.1921.
6.119 The European Communities requests that a footnote be adde d at the end of paragraph 7.547
to clarify that the Complaining Parties have not ch allenged the fact that in accordance with Article 35
of Directive 2001/18 an updated dossier had to be submitted which would re-start the approval
procedure.

205Ibid., para. 7.535.
206 Argentina refers to, especially, paras. 7.567, 7.584, 7.598, 7.612, 7.629, 7.648, 7.661, 7.670, 7.681,
7.695, 7.711, 7.726, 7.737, and 7.754 of the Interim Reports, referring to the Commission's knowledge of the
explicit intention of the "Group of Five" and these countries' capability to act as a "blocking minority"; and also
paras. 7.768, 7.777, 7.784, 7.798, 7.812, 7.825, 7.856, 7.876, 7.891, 7.901, 7.921, 7.955, 7.969, 7.985, and
7.1015 of the Interim Reports, referring to the member States as either being part of the "Group of Five", or
knowing of the explicit intention of the "Group of Five" and its capability to act as a "blocking minority").

6.120 Argentina opposes the additional footnote proposed by the European Communities. It has
already been clearly established several times during th e proceedings, and stated in the interim report,
that the Complaining Parties are not challenging the EC legislation as such (including Article 35 of
Directive 2001/18/EC). Argentina considers this clar ification not to be necessary. Besides this, the
proposed expression "any aspect of the EC approval legi slation" is too broad and misleading, since it
could be understood to include, for instance, the " non-application" of the EC approval legislation,
which Argentina is indeed challenging.
6.121 The Panel has added an appropriate footnote at the end of the first sentence of
paragraph 7.555 in response to this EC comment.
6.122 The European Communities points out that while it is correct that it only stated the fact,
referred to at paragraph 7.841, that the application was withdrawn (see EC second written submission,
paragraph 149, footnote 60), without providing any doc ument, it is also true that that fact was never
contested by the Complaining Parties. That alone should be a reason for the Panel to accept the EC
statement as a given fact. Furthermore the Panel never asked for further clarifications or documents.
The European Communities considers that this issue can still be clarified at interim stage and that
there is no point in waiting for an eventual implem entation phase to start producing the document that
shows that and when the withdrawal took place. The withdrawal letter is therefore attached as Exhibit
EC-167. Based on the letter, the European Co mmunities requests that the Panel include in
paragraph 7.841 the date of withdrawal.
6.123 The United States argues that the interim review stage of the proceeding is confined to a
"review of precise aspects" of an interim report. It is not the place for a party to submit new factual
evidence or exhibits concerning the measures at is sue, nor does it permit making new findings based
on such exhibits. The question of the status of new evidence introduced du ring the interim review
stage of a dispute was discussed by the Appellate Body in its report in European Communities –
Trade Description of Sardines. In that dispute, the European Communities had attempted to introduce
new evidence (in the form of letters from European consumer associations) at the interim review
stage. The panel declined to consider the new evidence, and the Appellate Body affirmed, explaining:
"The interim review stage is not an appropriate time to introduce new evidence. We
recall that Article 15 of the DSU governs the interim review. Article 15 permits
parties, during that stage of the proceed ings, to submit comments on the draft report
issued by the panel, and to make requests 'for the panel to review precise aspects of
the interim report.' At that time, the panel process is all but completed; it is only – in
the words of Article 15 – 'precise aspects' of the report that must be verified during
the interim review. And this, in our view , cannot properly include an assessment of
new and unanswered evidence. Therefore, we are of the view that the Panel acted
properly in refusing to take into account the new evidence during the interim review,
and did not thereby act inconsistently with Article 11 of the DSU."
207
6.124 In addition, the United States notes that th e European Communities' submission of new
evidence on BXN cotton is inconsistent with the Pane l's Working Procedures. Paragraph 12 of those
procedures provides:
"Parties shall submit all factual evidence to the Panel no later than during the first
substantive meeting, except with respect to evidence necessary for purposes of
rebuttals, answers to questions or co mments made for the purpose of rebutting

207 Appellate Body Report, EC – Sardines, para. 301.

answers provided by others. Exceptions to this procedure will be granted upon a
showing of good cause. In such cases, other parties shall be accorded a period of
time for comment, as appropriate."
6.125 The United States points out that the European Communities' new exhibit on BXN cotton was
not submitted in rebuttal or in response to a Panel question. In addition, the European Communities
has not claimed or made a showing of good cause wh ich might warrant an exception to the rule in
Paragraph 12. In particular, no showing of "good cause" is possible because the purported withdrawal
of the BXN cotton application in the period after the establishment of the Panel is not dispositive with
regard to any issue in this dispute. As the Un ited States has explained, under Article 7 of the DSU
(establishing the Panel's terms of reference), the meas ures at issue in this dispute are the measures in
existence when the panel was established. Accord ingly, information on the withdrawal of BXN
cotton after panel establishment is not pertinent to the existence and/or WTO-consistency of the
measures at issue.
6.126 The United States further submits that, remark ably, the EC comments make the assertion that
"there is no point in waiting for an eventual im plementation phase to start producing the document
that shows that and when the withdrawal took place." The United States is pleased that apparently the
European Communities is predicting that the Panel's recommendations and rulings regarding the BXN
cotton application, after a possible review by th e Appellate Body, will be adopted by the Dispute
Settlement Body and that the European Communities intends to comply with those recommendations
and rulings when adopted. Nonetheless, the Unite d States strongly disagrees with the notion that
there is "no point" in not allowing the submission of new evidence during the interim review stage on
implementation of a possible DSB recommendation and ru ling. To the contrary, the consideration of
the implementation of possible DSB recommendations and rulings during the interim review stage
would be inconsistent with the DSU. As the Appellate Body explained in EC – Sardines, the purpose
of the interim review stage is to consider "precise aspects" of the report, not to consider new evidence.
Instead, the DSU provides other, separ ate mechanisms to address this situation. For instance, those
issues could arise as part of the DSB's surveillance of implementation of the recommendations and
rulings. ( See, e.g., Article 21.6 of the DSU: "The DS B shall keep under surveillance the
implementation of adopted recommendations or ru lings.") Should the DSB ultimately adopt the
Panel's recommendations and rulings on BXN cotton, the European Communities would be free to
claim that it has already complied with the recomme ndations and rulings, and the DSB in turn would
be free to exercise its surveillance authority. Moreover, if there were disagreement about the
European Communities' claim, the DSB could establish a panel pursuant to Article 21.5 of the DSU.
6.127 Furthermore, the United States maintains that if the Panel were to accept new evidence at this
time, and in a matter not in accordance with the Pa nel's working procedures, the Complaining Parties
would be confronted with precisely the type of unfair "moving target" that the Appellate Body decried
in Chile – Price Band System.
208 If the European Communities were allowed to present new evidence
on its measures at each and every stage of the pro ceeding – and in particular at this stage – this
already lengthy dispute could last indefinitely, as the European Communities could continue to extend
the proceedings by continually submitting new evidence, by inviting the Complaining Parties to
respond to it, and by asking the Panel continually to revise its findings.

208 As the Appellate Body explained in that dispute, "the demands of due process are such that a
complaining party should not have to adjust its pleadings throughout dispute settlement proceedings in order to
deal with a disputed measure as a 'moving target'." Appellate Body Report, Chile – Price Band System ,
para. 144.

6.128 For all of these reasons, the United States submits that the Panel should give no consideration
to the new evidence the European Communities has attempted to introduce at the interim review stage
in this dispute.
6.129 Canada opposes the European Communities' suggest ed modification for paragraph 7.841 of
the Interim Report for two reasons. First, the European Communities appears to suggest that the mere
assertion of a fact, apparently uncontested by a Comp laining Party, should be "reason for the Panel to
accept the EC statement as a given fact." Canada disagrees. It is a well settled principle that the party
making an assertion has the burden to prove that assertion. The mere assertion of a fact that has not
been specifically contested by an opposing party is not necessarily sufficient to discharge this
burden.
209 The failure by the European Communities, in this case, to adduce evidence supporting its
assertions exposes it to the risk that the Panel, in making an objective assessment of the facts, may not
accept those assertions as fact. Indeed, in this di spute, the European Communities made many vague
assertions unsupported by specific evidence. In the present case, the Panel is perfectly entitled, based
on the evidence before it, to conclude as it did in paragraph 7.841.
6.130 Second, for the reasons stated below, Canada opposes the European Communities' attempt to
supplement the factual record. Having failed to support its assertion with evidence during the course
of these proceedings, the European Communities sh ould not be permitted to adduce new evidence at
the interim review stage, no matter how innocuous the evidence appears to be.
6.131 Canada objects to the European Communities' atte mpt at this very late stage of the process to
supplement the factual record before the Panel by introducing three new exhibits, EC-167, -168 and -
169.210 The submission of additional evidence after the issuance of the interim report significantly
alters the nature of the interim review stage a nd strains the demands of due process. The interim
review stage is an opportunity for parties to "submit a written request for the panel to review precise
aspects of the interim report prior to circulation of the final report" (Article 15.2 of the DSU); it is
emphatically not an opportunity for a party to co rrect evidentiary oversights or reopen the factual
record.
6.132 Canada notes that the European Communities s uggests that the introduction of new evidence
presents "no due process issue or prejudice" to the Complaining Parties because they have an
opportunity to comment on the new evidence. However, this does not answer the broader due process
problem of permitting only one party an opportuni ty to supplement the record. Permitting the
introduction of selective evidence, without providing an opportunity for a fair hearing on all pertinent
additional facts, violates due process. On this basi s alone, the Panel should disregard these exhibits.
The European Communities will have ample opport unity to submit this information during the
implementation stage of the proceedings.
6.133 Canada argues that if the Panel is inclined to accept the additional evidence submitted by the
European Communities, fairness di ctates that the Complaining Parties should be accorded an equal
opportunity to submit additional evidence to supplem ent the factual record. In this regard, the
Complaining Parties should not be limited to res ponding to the evidence recently submitted by the
European Communities, but should be free to subm it additional evidence on any issue addressed in
the Panel's interim report.

209 Canada notes that it stated in its submissions th at the fact that it had not addressed explicitly any
particular legal or factual assertions by the Europ ean Communities does not mean that it agrees with those
assertions. Canada's second written submission, para. 11.
210 Canada refers to paras. 53 and 68 of the EC comments.

6.134 The Panel notes that Exhibit EC-167 contains a letter dated 18 May 2004. The EC second
written submission, in which the European Communities referred to the withdrawal of the application
in question, dates from 19 July 2004. Thus, the European Communities could have provided the
relevant letter already at the time it filed its second written submission, or at least shortly thereafter.
We note that paragraph 12 of the Panel's Working Procedures states in pertinent part that "[p]arties
shall submit all factual evidence to the Panel no late r than during the first substantive meeting, except
with respect to evidence necessary for purposes of rebuttals, answers to questions or comments made
for purposes of rebutting answers provided by others. Exceptions to this procedure will be granted
upon a showing of good cause." In this instance, the European Communities has not made a showing
of good cause for submitting in March 2006 what it coul d have submitted alread y in May 2004. The
fact that, in the European Communities' view, "there is no point in waiting for an eventual
implementation phase to start producing the document" certainly does not amount to the requisite
"good cause", since this argument provides no just ification for submitting evidence that has been
available for more than two years as late as th e interim review stage. We also note that in EC -
Sardines the Appellate Body stated in unqualified terms that "[t]he interim review stage is not an
appropriate time to introduce new evidence".
211 For these reasons, the Panel declines to make the
change requested by the European Communities.
6.135 The European Communities identified mistaken cross-refere nces to Annex H in the Panel's
findings, including in the old footnotes 683-684 and 688-689.
6.136 The European Communities requests that at paragraph 7.886 the Panel modify its
description of what Dr. Andow said so that it is clo ser to what he stated literally and therefore more
accurately reflects his views.
6.137 The Panel has made appropriate changes to paragraph 7.894 in response to this comment.
6.138 The European Communities requests that a sentence should be added in footnote 774 to
paragraph 7.1028 stating that the only application that does not seem to have been submitted both
under Regulation 258/97 and Directive 90/220 is the application for Transgenic green-hearted chicory
(food use only).
6.139 The Panel notes that the European Communities poin ts to no evidence in the record which
would support its assertion that there is no applica tion concerning Transgenic green-hearted chicory
that was submitted and evaluated und er Directive 90/220. The Panel is not convinced by the EC
assertion. Indeed, the documents on the record do no t support the EC assertion. Exhibit EC-98/At.11
relates to the application concerning the Transg enic green-hearted chicory (food). The Exhibit
contains a letter which states "[e]nclosed you find th e summary of the evaluation of potential risks to
human health and the environment, carried out by the Netherlands competent authority for
Directive 90/220/EEC". That summary in turn states that the application submitted under
Directive 90/220 concerns "green hearted chicory (Cichorium intybus L.) [of] line GM-2-28." Exhibit
EC-110/At.7 provides further confirmation, in its gene ral introduction, of the fact that an application
concerning the Transgenic green-hearted chic ory was submitted under Directive 90/220 and
Regulation 258/97 and that the Ne therlands was the lead CA in both cases. The Panel therefore
declines the EC request that it add a sentence to footnote 999.
6.140 The European Communities submits that an addition is required in the last sentence of
paragraph 7.1031 to clarify that there were also labelling requirements for GMO-derived products
under Regulation 258/97, albeit only for tho se products which still contained DNA traces ( see Article

211 Appellate Body Report, EC – Sardines, para. 301.

8 of Regulation 258/97 and Article 1 of Regulation 49/2000 amending Article 2(2) of
Regulation 1139/98). Alternatively, the entire last sentence starting with "In particular…" could be
taken out, as it does not seem to be of relevance to the issues in this dispute.
6.141 Argentina considers that the addition suggested by the European Communities is not clear
and, consequently, objects to it, but Argentina supports the suggested deletion of the last sentence.
6.142 The Panel has made appropriate changes to para 7.1039 in response to this EC comment.
6.143 The European Communities requests that the last sentence of paragraph 7.1300 be deleted
as it does not correctly reflect the European Co mmunities' position. In fact, the European
Communities has explicitly contested the Panel's author ity to make such findings in its reply to Panel
question No. 7 as well as in paragraph 151 of its second written submission.
6.144 Argentina submits, with regard to the EC reply to Panel question No. 7, that the European
Communities stated in its answer that there has been no moratorium at all, when it stated that "[t]he
approval procedures have never been suspended or stalled as alleged by the Complainants. In any
event, even if certain delays that occurred in the application of Directive 90/220 were to be seen to
constitute a 'moratorium', these must have ende d with the application of Directive 2001/18."
(paragraph 24 of the EC response) and that "[ t]herefore, the European Communities respectfully
requests the Panel to find that, with regard to a pplications withdrawn befo re the panel establishment
and the alleged 'moratorium', the Complainants' ca se is without object and, hence, inadmissible ab
initio" (paragraph 25 of the EC response). In Arge ntina's view, the European Communities did not
contest the Panel's authority to rule on a measur e that had ceased to exis t, since the European
Communities stated that the measure did not exist at all. Argentina further submits that paragraph 151
of the EC second written submission refers to the European Communities' answ er to question No. 7,
so the same observation applies here. Therefore, Argentina believes that the original wording in
paragraph 7.1296 accurately reflects the EC position on a "measure that ceased to exist", and that the
clarification requested by the European Communities should not be taken into account.
6.145 The Panel does not agree with how the European Communities describes its position as
reflected in its second written submission and Panel question No. 7. Nevertheless, the Panel has
added a footnote to paragraph 7.1308, to indicate what the European Commun ities stated before the
Panel.
6.146 The European Communities suggests the deletion of a point made at paragraph 7.1303
regarding whether NK603 maize (food) could be ma rketed regardless of whether NK603 maize (for
animal feed use) had obtained the lead CA's wr itten consent. The European Communities submits
that a market authorization under Regulation 258/97 is directly applicable and does not require any
further consent from the lead CA. As there is no pr ovision to this effect in the legislation nor any
such condition in the market authorization itself, th e use of this market authorization does not (and
cannot legally) depend on the adoption of a market authorization for feed use under
Directive 2001/18. This is different from the question of whether under Article 9 of
Regulation 258/97 the assessment of environmenta l risks can be made dependent on a parallel
assessment under Directive 90/220 (or Directive 2001/18). Furthermore, as regards NK603 maize
(for use such as animal feed), th e European Communities says that it would like to inform the Panel
that final consent was given by the lead CA on 18 October 2004 (new Exhibit EC-168). Moreover, as
regards MON863 maize, final consent was given by the lead CA on 13 February 2006 (new Exhibit
EC-169). The European Communities would invite th e Panel to take these facts into account and re-
draft paragraph 7.1303 accordingly. In inviting the Panel to take these matters into consideration, the
European Communities points out that the Compla ining Parties have the opportunity to comment on

these comments, and thus the possibility to state if th ey contest the plain facts, duly evidenced, and if
so, on what basis. There is thus no due process issue or prejudice vis-à-vis the Complaining Parties.
6.147 The United States recalls that it explained in the above discussion of the EC comment on
BXN cotton that the DSU and the Panel's own working procedures do not permit a Panel to examine
new evidence on the measures at issue submitted duri ng the interim review stage. Accordingly, the
United States submits that the Panel should not make the changes to paragraph 7.1303 of the interim
report that the European Communities suggests.
6.148 Canada similarly states that for the reasons stat ed above, Canada opposes the EC attempt to
reopen the factual record at the interim review stage. The European Communities will have an
opportunity to introduce this new evidence during the implementation stage of the proceeding. In
addition, Canada submits that Exhi bit EC-169 is problematic for another reason; it is a document that
has been submitted by the European Communities in the German language only. Canada reiterates its
objection, first raised in its letter to the Panel, dated 29 June 2004, to the European Communities'
practice of submitting evidence in a language other than one of the official WTO languages. In
accordance with long-standing GATT and WTO prac tice, any document submitted as evidence in
dispute settlement proceedings that is in a language other than an official WTO language must be
accompanied by a version translated in to one of the official languages.
212 The failure to submit a
translation of Exhibit EC-169 means that the Panel should disregard this document.
6.149 Argentina acknowledges that the European Commun ities can make several more approvals
from now on, and thus expect the Panel to continuously adjust the text of the interim report.. Despite
this, we recall our argument in the sen se that the matter of whether the " de facto" moratorium ceased
to exist is not to be assessed, and that the approvals at this later stage should not have any influence on
the matter.
6.150 The Panel has made appropriate changes at para graph 7.1303 in response to this EC
comment. The Panel notes in this regard that it has accepted the European Communities' request that
the Panel delete the latter part of the third senten ce of the old paragraph 7.1303. After reviewing the
remainder of the third sentence, the Panel has determin ed that there is no need to retain it. The Panel
has therefore deleted the entire third sentence. In the light of this, it is not necessary to consider
whether it would be appropriate to take into account Exhibits EC-168 and EC-169, which were
submitted only at the interim review stage. In rela tion to Exhibit EC-169, we note that, in any event,
the document is in German and that no translation into any of three official languages of the WTO
was provided to the Panel and the other Parties.
6.151 The European Communities submits that, the wording of the old paragraph 7.1311 should
be changed to "continuing exis tence of opposition to a pprovals amongst member States" because the
phrase "continuing member State opposition" is too sweeping a statement as there is no such thing as
a generalised opposition of member States to approval s. It also overlooks the reasons which explain
the opposition of each individual member State in each specific procedure.
6.152 The United States considers that the two phrases have slightly different emphases – the
phrase drafted by the Panel is clearer, and more accurately reflects the level of member State
opposition. The European Communities wishes to soften the Panel finding, but the European
Communities presents no valid basis for doing so. The Panel's findings on member State actions in
support of the moratorium ( see, e.g., paragraph 7.1273) are more than sufficient to support the
language currently used in paragraph 7.1311 of the interim report.

212 Canada refers to Panel Report, Korea –Dairy, para. 7.16.

6.153 The Panel has made appropriate changes to paragr aph 7.1311 in response to this EC
comment.
6.154 The European Communities identified a missing reference to the year 1999 in paragraph
7.1543.
4. Product-specific measures
(a) Comments by Argentina
6.155 Argentina identified words included by oversight in paragraph 7.1873.
(b) Comments by the European Communities
6.156 The European Communities contends that the date referre d to in paragraph 7.1634 and the
accompanying footnote should be August 2005 and no t September 2005 as the application concerning
RR oilseed rape (EC-70) was approved on 31 August ( see Official Journal of the European Union
N°L 228 of 3 September 2005, at page 11). The Eu ropean Communities also requests a reference to
the application concerning MON863 maize in the relevant footnote.
6.157 The Panel has made appropriate changes to paragr aph 7.1641 in response to this comment,
noting again that it was the EC letter of 1 Se ptember 2005 which suggested the 1 September 2005
approval date. The Panel sees no need for referring, in a footnote relating exclusively to RR oilseed
rape (EC-70), to the application concerning MON863 maize.
6.158 The European Communities requests changes to paragraph 7.1662 and footnote 1143.
Specifically, the European Communities suggests the deletion of a point made in footnote 1143
regarding whether NK603 maize (food) could be ma rketed regardless of whether NK603 maize (for
animal feed use) had obtained the lead CA's written consent. The European Communities has
addressed this point in its comment on paragraph 7.1 303. Furthermore, and as also already explained
in the above comment on paragraph 7.1303, regarding NK603 maize (for use such as animal feed), the
European Communities contends that final con sent was given by the lead CA on 18 October 2004
(new Exhibit EC-168). Moreover, as regards M ON863 maize, the European Communities contends
that final consent was given by the lead CA on 13 February 2006 (new Exhibit EC-169). The
European Communities would invite the Panel to take these facts into account and re-draft the
footnote accordingly. In inviting the Panel to take these matters in to consideration, the European
Communities points out that the Complaining Parties have the opportunity to comment on these
comments, and thus the possibility to state if they c ontest the plain facts, duly evidenced, and if so, on
what basis. There is thus no due process issue or prejudice vis-à-vis the Complaining Parties.
6.159 The United States argues that as for paragraph 7.1303 above, the European Communities
invites the Panel to make new findings, based on newly submitted exhibits, with regard to two
approvals purportedly made after the establishment of the terms of re ference. As the United States
explained above, under the DSU and the Panel's work ing procedures, it would not be proper for the
Panel to accept new exhibits on the measures at issu e during the interim review stage, nor to make
new findings to reflect the information in such exhibits.
6.160
 Canada similarly states that for the reasons stat ed above, Canada opposes the EC attempt to
reopen the factual record at the interim review stage. The European Communities will have an
opportunity to introduce this new evidence during the implementation stage of the proceeding. In
addition, Canada recalls that Exhibit EC-169 is pr oblematic for another reason; it is a document that

has been submitted by the European Communities in the German language only. The failure to
submit a translation of Exhibit EC-169 means that the Panel should disregard this document.
6.161 Argentina also disagrees with the suggested modifica tions. As Argentina stated before, the
approvals in its view do not make any difference, since Argentina believes that the Panel should make
no findings about the implication of these late approvals referring to any possible end of the "de facto"
moratorium.
6.162 The Panel has made appropriate changes to paragr aph 7.1669 and has deleted the relevant
sentence in the footnote. However, the Panel dec lines the European Communities' invitation to take
into account the information provided by the Eur opean Communities in the new Exhibits EC-168 and
EC-169.
6.163 We first address Exhibit EC-168. Exhibit EC-168 contains a decision of the Spanish Ministry
of the Environment dated 18 October 2004. In addressing this Exhibit, we recall the above-referenced
provisions of paragraph 12 of the Panel's Working Pr ocedures and observe that, in this instance, the
European Communities has not made a showing of good cause for submitting in March 2006 what it
could have submitted already in October 2004. Indeed, the European Communities provides no
reason for the late filing. The European Communities merely argues that the Complaining Parties still
have an opportunity to comment on the new exhibit. This argument is misconceived. Paragraph 12 of
the Panel's Working Procedures states that "[p]arti es shall submit all factual evidence to the Panel no
later than during the first substantive meeting, ex cept with respect to evid ence necessary for purposes
of rebuttals, answers to questions or comments made for purposes of rebutting answers provided by
others", unless an exception is granted on a showing of good cause. The fact that paragraph 18 of the
Panel's Working Procedures gives the Parties the opportunity within a time-period specified by the
Panel to submit written comments on the other Parties' written requests for review does not excuse the
European Communities from complying with the provisions of paragraph 12 of the Working
Procedures. We also recall that in EC - Sardines the Appellate Body stated in unqualified terms that
"[t]he interim review stage is not an appropriate time to introduce new evidence".
213
6.164 Turning to Exhibit EC-169, we note that this exhibit apparently contains a decision of the
German lead CA dated 13 February 2006. As an initial matter, we recall that the document is in
German and that no translation into any of three official languages of the WTO was provided. Even
disregarding this, the Panel considers that it woul d be inappropriate to refer to the application
concerning MON863 maize in footnote 1365 given that that footnote concerns the product-specific
measures challenged by the Complaining Parties. None of the product-specific measures challenged
by the Complaining Parties concerns the application concerning MON863 maize.
6.165 The European Communities identified a missing reference to the year 1999 in
paragraph 7.1809.
6.166 Like Argentina, the European Communities identified words included by oversight in
paragraph 7.1873.
6.167 The European Communities submits that the wording of the third sentence of
paragraph 7.2222 should be changed to provide further clarification as to what the issue exactly was.
6.168 The Panel has made appropriate changes to paragraph 7.2229 in response to this comment.

213 Appellate Body Report, EC – Sardines, para. 301.

6.169 The European Communities requests that a footnote reference be put in paragraph 7.2324
indicating where the arguments summarized in this pa ragraph have been made in the US submissions.
The European Communities has been unable to identify the source of the arguments set out in that
paragraph. If the arguments have not been made in the US submission they should of course be
deleted from the summary.
6.170 The United States notes that the point that before the European Communities adopted its
moratorium, all approval procedures under Directiv e 90/220 were undertaken and completed in less
than three years is made in paragraph 138 of the US first written submission. The United States
further notes that additional support for this assertion is provided in Annex II to the US reply to Panel
question No. 75(c).
6.171 The Panel sees no need for adding a footnote and notes that its argument summary is based
on arguments set out at paragraph 138 of the US fi rst written submission which refers to, and should
be read together with, Exhibit US-31. As noted by the United States, the United States' reply to Panel
question No. 75(c) contains further relevant info rmation. Nonetheless, in response to the EC
comment the Panel has deleted the last sent ence of paragraph 7.2331, and has modified
paragraph 7.2332. Furthermore, in order to ensu re consistency across Section VII.E, the Panel has
made corresponding changes to all US argument summa ries which relate to the other product-specific
measures challenged by the United States. In re viewing its findings concerning the US argument
about the period of time during which the relevant a pplications were pending, the Panel also noticed
that a small portion of the findings had been inadvertently omitted from the interim reports, and so the
Panel has added the missing portion at paragraph 7.1929. In view of this addition, a similar statement
included at paragraph 7.2295 became redundant and was therefore deleted.
5. EC member State safeguard measures
(a) Comments common to Canada and Argentina
6.172 Canada and Argentina identified mistaken refe rences to Argentina in
paragraphs 7.3170-7.3171.
(b) Comments by Canada
6.173 Canada identified a typographical error at paragraph 7.2963.
6.174 Canada also recalls that at paragraph 7.3390, the Panel indicates that, in respect of Canada's
claims under Article 2.2 of the SPS Agreement, the EC member State safeguard measures are
inconsistent with both Articles 5.1 and 5.7, and theref ore, by implication, are inconsistent with Article
2.2. Canada submits that the finding of a dual in consistency with both Articles 5.1 and 5.7 seems to
contradict the Panel's earlier reasoning on the issue of whether Articles 5.1 and 5.7 can apply at the
same time. Canada understands th e Panel's findings and conclusions with respect to Articles 5.1 and
5.7 to be that Article 5.7 does not apply because su fficient scientific evidence existed to complete a
risk assessment at the time the saf eguard measures were adopted. On that basis, Article 5.1, rather
than Article 5.7, applies and the measures are incons istent with Article 5.1 because they are not based
on a risk assessment. Similarly, therefore, Article 2. 2, rather than Article 5.7, would apply, and the
measures would be inconsistent with it because they are not based on scientific principles, and are
being maintained without sufficient scientific evidence. Canada requests the Panel to clarify this issue
and make the appropriate changes in the final report.

6.175 The European Communities argues that Canada vaguely requests the Panel to "clarify this
issue and make the appropriate changes in the final report." In the European Communities' view, this
is hardly compatible with the requirement set out in Article 15.2 of the DSU to submit requests to
review precise aspects of the interim report. Indeed, neither is it clear what the Panel is to do in order
to accede to Canada's request, nor is it possi ble for the European Co mmunities to make any
meaningful comment in the absence of a precise s uggestion. Canada's request should therefore be
refused.
6.176 The Panel has made appropriate changes in Secti ons VII and VIII of the final reports to
clarify the issue identified by Canada. The Pa nel also notes that it has used the concept of
"consistency" in connection with Article 5.7 in view of the Appellate Body's use of that concept in the
Japan – Apples and Japan – Agricultural Products II reports.
214
6. Conclusions and recommendations
6.177 Argentina identified a mistaken reference to Canada at paragraph 8.57(c).
D. OTHER CHANGES TO THE INTERIM REPORTS
6.178 The Panel has also made a number of other chang es, throughout the reports, which were not
specifically requested by the Parties. The Panel h as done so in an effort to eliminate typographical
errors and edit its reports.
E. REQUEST FOR REDACTION OF PORTIONS DISCLOSING STRICTLY
CONFIDENTIAL INFORMATION
6.179 As noted infra, at footnote 233, the Panel, at the request of the European Communities, put in
place a special set of procedures for the protection of strictly confidential information ("SCI"), notably
to protect sensitive company information submitte d by the European Comm unities. The interim
reports submitted to the Parties contained references to information designated by the European
Communities as SCI, and the Panel identified them as such.
6.180 At the invitation of the Panel, the European Communities on 7 April 2006 submitted
specific requests for bracketing/redaction of words, sentences and/or paragraphs in the interim reports
which, in its view, disclose SCI. The European Communities stated that there was no information
contained in the findings of the interim reports that directly constitutes SCI. In contrast, the European
Communities identified certain references at paragr aphs 271, 621, 622 and 623 of Annex H which it
considered to disclose SCI and which it requested to be redacted from the public versions of the final
reports.
6.181 The Complaining Parties on 18 April 2006 made use of the opportunity granted by the Panel
to comment on the EC requests. They indicated th at they had no objection to the removal of the SCI
designation on information contained in the body of the interim reports or to the requests for redaction
as set out in the EC letter of 7 April 2006.
6.182 Taking account of the views expressed by the Parties, the Panel made appropriate redactions
at paragraphs 271, 621, 622 and 623 of Annex H. They are identified in Annex H as "[xxx]".

214 Appellate Body Reports, Japan – Apples , paras. 176 and 177; Japan – Agricultural Products II ,
para. 89.

F. PUBLIC
 DISCLOSURE OF THE PANEL'S CONFIDENTIAL INTERIM REPORTS
6.183 On 7 February 2006, the Panel provided paper and electronic copies of its confidential interim
reports to the Parties. On 9 February 2006, the Pane l sent a letter to the Parties to draw their attention
to the fact that a commercial trade publication had posted on its website the conclusions and
recommendations (Section VIII) of the Panel's confiden tial interim reports. The Panel noted that this
was a matter of grave concern to it, recalling that it was critical to the functioning of the interim
review process that all Parties main tained the confidentiality of the in terim reports. The Panel further
recalled that confidentiality at all stages of the process is an inherent part of the WTO dispute
settlement system whose purpose is to secure a pos itive solution to a dispute. The Panel also
observed that the maintenance of the confidentiality of the interim reports was particularly important
in order to avoid that information contained in the reports and designated as SCI would be disclosed
to unauthorized persons. The Panel requested the Pa rties to provide any information they had as to
how the breach of confidentiality ha d occurred and urged all Parties to take all necessary steps to
protect the confidentiality of the interim reports.
6.184 Subsequently, on 2 March 2006, the Panel sent anot her letter to the Parties to point out that
Friends of the Earth (FOE) Europe had posted on its website the Panel's confidential interim reports in
their entirety, i.e., the descriptive part as well as the findings and conclusions. The Panel noted that in
a statement made available on its web site, FOE clai med to have refrained from disclosing SCI in the
version it had published, on the advice of its lawyers. The Panel stated that the leak in question was
particularly serious, not just because it was far more comprehensive, but also because unlike the
conclusions section of the interim reports which ha d been previously leaked, the findings section of
these reports contained SCI.
6.185 The Panel recalled in this regard that FOE clai med that it did not disclose SCI in its published
versions of the findings. In the Panel's view, however, even assuming that no SCI was in fact
disclosed as a result of the action of FOE, FOE's action represented another serious incident which
could damage the integrity of the WTO dispute settlement system as a whole. The Panel noted in this
respect that it is very difficult to see why any priv ate party would wish to provide panels, complaining
parties and responding parties with strictly confidenti al information that is in its sole possession if it
cannot have confidence that this information will not be disclosed without its permission during the
interim review process.
6.186 The Panel again requested the Parties to provide any information they might have as to how
the second breach of confidentiality occurred. The Parties responded to the Panel's letters as indicated
below.
6.187 The United States observed that it shared the Panel's grav e concerns. With regard to the first
breach of confidentiality, the United States noted th at pertinent information had been posted by the
relevant publication that placed Section VIII on the inte rnet. In particular, the website noted that the
source for Section VIII was the "Institute for Ag riculture and Trade Policy" (IATP). The United
States pointed out that IATP is an NGO that, among other things, opposes the adoption of agricultural
biotechnology. The United States stated that it was certain that no person provided by the United
States with access to the interim reports had any contacts with IATP regarding those reports.
Moreover, the United States noted that each person provided by the United States with access to the
interim reports was aware of and respected the conf idential nature of the interim reports. Thus, the
United States contended that it had not been, nor w ould it be, the source of breaches of confidentiality
regarding the interim reports.

6.188 Regarding the publication by "Friends of the Earth Europe" of a complete copy of the
findings (Section VII) on the internet, the United States noted that the source of the leak appeared to
be the same as the source of the 8 February leak of Section VIII of the interim reports. The United
States submitted that the Friends of the Earth Eu rope website included a press release, datelined
Geneva/Brussels 8 February 2006, stating that th ree NGOs – Institute for Agriculture and Trade
Policy, Friends of the Earth Europe, and Greenpeace – jointly published Sec tion VIII of the interim
reports on the internet. Moreover, the United States asserted that in a separate briefing paper, Friends
of the Earth Europe states: "Friends of the Earth has, on legal advice, deleted limited
company-specific information from the interim repor t we are publishing in order to avoid legal action
against us." According to the United States, this statement indicates that Friends of the Earth Europe
has received a complete copy of Section VII, including SCI. Furthermore, the United States
emphasized, the version of the report that Friends of the Earth Europe published on the internet in fact
contained several pages, without any redactions, th at the cover sheet of the reports indicated as
containing SCI. The United States noted in this rega rd that it agreed with the Panel that a leak of
material containing SCI was of extraordinary concern.
6.189 In respect of this second breach of confidentialit y, the United States contended that it was not
the source of the leak of the confidential interim re ports. According to the United States, no person
provided by it with access to the interim reports had any contacts with Friends of the Earth Europe
regarding the interim reports. Moreover, in acco rdance with the Panel's strict rules governing SCI
supplied by other Parties, the United States stated th at it had tightly controlled distribution and use of
any portion of the interim reports containing SCI. Furthermore, the United States asserted that it was
apparent from the content of the "Briefing Paper" (entitled "Looking behind the US spin: WTO ruling
does not prevent countries from restricting or banning GMOs") by Friends of the Earth Europe that no
Complaining Party would have had reason to provide a copy of the findings to Friends of the Earth
Europe.
6.190 In addition, the United States noted that the Panel's additional SCI procedures permitted at
least one possible scenario under which provision of SCI to Friends of the Earth Europe would not
have been a breach of those procedures. According to the United States, the Panel's SCI rules "do not
apply to a party's treatment of its own SCI", a nd the European Communities was the only Party that
had submitted SCI in this dispute.
6.191 Canada stated that as regards the "leak" of the fi ndings and conclusions set out in the interim
report it shared the Panel's concerns. Furthermore, Canada stated that it was in no way involved in
these incidents, and deplored such breaches of conf identiality. Canada noted that, despite media
demands for comments based on the leak, the Governme nt of Canada had refused to make any public
statement beyond acknowledging that it has received th e interim report and was studying it. Finally,
Canada remarked that should any information come to its knowledge as to how the breach of
confidentiality occurred it would forward this info rmation to the Panel and the Secretariat without
delay.
6.192 Argentina stated that it was not involved in any wa y in the reported leaks referenced in the
Panel's letters. Moreover, Argentina stated that it had no information to provide about how the breach
of confidentiality had occurred. Argentina noted, finally, that should any information come to its
knowledge regarding these regrettable incidents, it w ould forward this information to the Panel and
the Secretariat without delay.
6.193 The European Communities stated that it was concerned by the serious breach of the
confidentiality of Panel proceedings. With regard to the first breach of confidentiality, involving the
disclosure of the conclusions of the interim reports , the European Communities pointed out that as far

as it could establish the leak first occurred via a United States based N GO, the Institute for
Agriculture and Trade Policy, as the relevant document was posted on their website.
6.194 In respect of the second breach of confidentialit y, which occurred via Friends of the Earth
Europe, the European Communities said it would refrain from making groundless accusations or
insinuations, or from speculating about which Party might or might not have profited from the public
dissemination of the document. Instead, the Eur opean Communities said, it could confirm that it had
no information about the source of the leak and no indication that there had been any breach of
confidentiality attributable to the European Communities. On the contrary, the European
Communities maintained, it had systematically ensu red that all persons having access to the interim
reports were informed of its confidentiality and the need to preserve it.
6.195 The Panel notes with satisfaction that all Par ties deplored and condemned the serious
breaches of the confidentiality of the interim reports which occurred in this case. The Panel further
notes that each Party formally stated that it had no in volvement in the leaks of the confidential interim
findings and conclusions. It is plain to see that th ese statements cannot easily be reconciled with the
fact that these leaks did occur. However, as is apparent from the above summary of the Parties'
responses to the Panel's letters, the Panel was not provided sufficient reliable information to determine
the origin(s) of the leaks. The Panel subsequently sent a letter to the Parties to inform them that it
intended to take appropriate acti on to try to avoid further leaks of the reports upon issuance of the
final reports (see the Panel's letter to the Parties contained in Annex K).
6.196 It should be noted, in addition, that the Institu te for Agriculture and Trade Policy and Friends
of the Earth submitted amicus curiae (friend-of-the-court) briefs, re questing the Panel to accept and
consider their briefs.
215 The Panel acknowledged receipt of these briefs, shared them with the Parties
and Third Parties, and accepted them as such.216 In the light of this, it is surprising and disturbing that
the same NGOs which claimed to act as amici, or friends, of the Panel when seeking to convince the
Panel to accept their unsolicited br iefs subsequently found it appropriate to disclose, on their own
websites, interim findings and conclusions of the Panel which were clearly designated as confidential.
VII. FINDINGS
7.1 The Panel observes that the United States, Ca nada, Argentina and the European Communities
(hereafter "the Parties") have used different terms to refer to the products at issue in this dispute. The
separate requests for the establishment of a pane l by the United States, Canada and Argentina
(hereafter collectively referred to as "the Compla ining Parties") all refer to measures affecting
"biotech products". 217 The European Communities' legislation identified by all of the Parties as
relevant to the case in hand refers to gene tically modified organisms (hereafter "GMOs"). 218 All of
the Parties to the dispute agree that, technically, th e specific products at issue in this case are plants
(and the products thereof) developed through the use of recombinant DNA techniques.

215 See infra, Section VII.A.2.
216 Ibid.
217 WT/DS291/23, WT/DS292/17 and WT/DS293/17.
218 Council Directive 90/220/EEC "on the deliberate release into the environment of genetically
modified organisms"; Regulation (EC) No 258/97 "concerning novel foods and novel food ingredients"; and
Directive 2001/18/EC of the European Parliament and of the Council "on the de liberate release into the
environment of genetically modified organisms and repealing Council Directive 90/220/EEC".

7.2 In its consideration of the matter before it, the Panel uses interchangeably the terms biotech
products, GMOs, GM plants, GM crops or GM products , without prejudice to the views of the Parties
to the dispute.
A.
PROCEDURAL AND OTHER GENERAL MATTERS
7.3 In this opening section, we address a number of procedural and other general matters. First of
all, we explain how in preparing this documen t we have taken account of the fact that the
Complaining Parties in this dispute have brought le gally separate complaints. Then we set out how
we have dealt with the unsolicited amicus curiae briefs sent to the Panel. Next we address how we
have reached and implemented our decision to cons ult individual scientific experts and international
organizations. We then go on to explain that certain annexes to this document are available only
on-line, and we offer some general remarks on th e challenges faced by the Panel in conducting these
proceedings. After that, we reproduce in full our preliminary ruling on whether the Complaining
Parties' separate requests for the establishment of a panel are inconsistent with Article 6.2 of the DSU,
as claimed by the European Communities. Finally, we address the issue of the relevance of non-WTO
rules of international law to the interpretation of the WTO agreements at issue in this dispute.
1. Multiple complaints
7.4 The Complaining Parties in this dispute did not bring a joint complain t against the European
Communities. Instead, they filed legally separ ate complaints, and separately requested the
establishment of a panel. Since these requests for the establishment of a panel related to the same
matter, the DSB, consistent with the procedures for multiple complaining parties provided for in
Article 9.1 of the DSU, established a single panel to examine the three complaints.
7.5 Article 9.2 of the DSU provides that when a si ngle panel is established to examine multiple
complaints, the panel is to submit separate reports on the dispute concerned if one of the parties to the
dispute so requests. We have sought the views of the Parties to this dispute on the question of
separate panel reports. None of the Parties request ed that we submit separate panel reports. Instead,
as we understand it, all Parties effectively agreed that the Panel could issue a single document
constituting three reports; that the introductory an d descriptive parts could be common to all reports;
that the findings could be common to the three re ports, except where the claims presented and the
evidence submitted by the Complaining Parties we re different; and that the conclusions and
recommendations should be different for each report.
7.6 The Panel saw no reason to disagree with th e approach suggested by the Parties.
Accordingly, we decided to prepare and issue one single document constituting three separate panel
reports. This is why the present document bears the symbols and DS numbers of all three complaints,
i.e., DS291 for the complaint by the United States, DS292 for the complaint by Canada and DS293 for
the complaint by Argentina. The present documen t comprises a common introductory part and some
common annexes. The descriptive part and certain a nnexes contain separate sections for each Party.
Thus, the description of, e.g., the United States' arguments is part of the report concerning the United
States' complaint. The description of the European Communities' arguments is basically relevant to
all three reports, as the European Communities has pr ovided an integrated defence in this case.
However, some portions of the European Communities' arguments are relevant to only one report.
7.7 Regarding the findings section of the three repor ts, we have particularized the findings for
each of the Complaining Parties only where we found it necessary to do so. Thus, many (although not
all) of the legal interpretations developed by the Panel are common to all three reports. On the other
hand, we have particularized the conclusions fo r each claim made by a Complaining Party. To

distinguish the complaint-specific conclusions, we use the appropriate DS numbers. Hence, a
conclusion which is part of the report concerning the United States' complaint is preceded by the
reference "DS291 (United States)". Where we have made findings, or relied on materials submitted
as evidence
219, which are specific to one of the three complaints, we have indicated this by using the
relevant DS number, if it was not otherwise clear fro m the relevant context. Also, in summarizing the
Complaining Parties' arguments, we have provided separate summar ies for each Complaining Party
where the arguments were different; where the Compla ining Parties' arguments were identical or very
similar, we have generally prepared an integrated argument summary for all Complaining Parties.
7.8 With regard to the final section of this document, entitled "Conclusions and
Recommendations", we note that the conclusions we reached and the recommendations we made have
been particularized for each Complaining Party. Accordingly, this document contains three
independent sets of conclusions and recommendations.
7.9 In our view, the approach outlined above satis fies the requirement contained in Article 9.2
that a single panel present its findings to the DSB in such a manner that the rights which the parties to
the dispute would have enjoyed had separate panels examined the complaints are in no way impaired.
We also consider that this approach is consistent with the approach followed in a similar situation by
the panel in US – Steel Safeguards.220
2. Amicus curiae briefs
7.10 In the course of these proceedings, we received three unsolicited amicus curiae briefs: on 6
May 2004 we received an amicus curiae brief from a group of university professors 221; on 27 May
2004 we received an amicus curiae brief from a group of non-governmental organizations 222
represented by the Foundation for International E nvironmental Law and Development (FIELD); and
on 1 June 2004 we received an amicus curiae brief from a group of non-governmental
organizations223 represented by the Center for Internationa l Environmental Law (CIEL). These briefs
were submitted to us prior to the first substantive meeting of the Panel with the Parties, and the Parties
and Third Parties were given an opportunity to comment on these amicus curiae briefs.224

219 We note that the Complaining Parties have only partly submitted the same factual evidence in
support of their claims. In some cases, the Complaining Parties have explicitly relied on evidence submitted by
another Complaining Party, but no Complaining Party has stated that, for the purposes of its complaint, it
wished to rely also on all evidence submitted by the other Complaining Parties.
220 Panel Reports, US – Steel Safeguards, para. 10.725.
221 Lawrence Busch (Michigan State University), R obin Grove-White (Lancaster University), Sheila
Jasanoff (Harvard University), David Winickoff (Harvard University) and Brian Wynne (Lancaster University).
222 Gene Watch, Foundation for International Envi ronmental Law and Development (FIELD), Five
Year Freeze, Royal Society for the Protection of Birds (RSPB)(UK), the Center for Food Safety (USA), Council
of Canadians, Polaris Institute (Canada), Grupo de Reflexión Rural Argentina, Center for Human Rights and the
Environment (CEDHA) (Argentina), Gene Campaign, Forum for Biotechnology and Food Security (India),
Fundación Sociedades Sustentables (C hile), Greenpeace International (The Netherlands), Californians for GE-
Free Agriculture, International Forum on Globalisation.
223 Center for International Environmental Law (CIEL), Friends of the Earth – United States (FOE-US),
Defenders of Wildlife, the Institute for Agriculture and Trade Policy (IATP), and the Organic Consumers
Association (OCA).
224 Only the United States and the European Communities referred to these briefs. The United States
comments extensively on the arguments in the amicus curiae briefs in its second written submission, but
concludes that the information provided in those briefs are of no assistance to the Panel in resolving this dispute.
US second written submission, attachment III. The European Communities refers to the argument in the amicus
curiae briefs in its first oral statement. The European Communities' first oral statement, para. 15.

7.11 We note that a panel has the discretionary authorit y either to accept and consider or to reject
any information submitted to it, whether requested by a panel or not , or to make some other
appropriate disposition thereof.
225 In this case, we accepted the information submitted by the amici
curiae into the record. However, in rendering our decision, we did not find it necessary to take the
amicus curiae briefs into account.
3. Consultation of individual scientific experts and international organizations
7.12 We now address the Panel's decision to consu lt individual scientific experts and certain
international organizations. In this regard, Article 11.2 of the SPS Agreement provides that:
"In a dispute under this Agreement involving scientific or technical issues, a panel
should seek advice from experts chosen by th e panel in consultation with the parties
to the dispute. To this end, the panel may, when it deems it appropriate, establish an
advisory technical experts group, or consu lt the relevant international organizations,
at the request of either party to the dispute or on its own initiative."
7.13 Articles 14.2 and 14.3 of the TBT Agreement provides that:
"14.2 At the request of a party to a dispute, or at its own initiative, a panel may
establish a technical expert group to assist in questions of a technical nature, requiring
detailed consideration by experts.
14.3 Technical expert groups shall be gove rned by the procedures of Annex 2."
7.14 Finally, Article 13.1 of the DSU provides in relevant part:
"Each panel shall have the right to seek information and technical advice from any
individual or body which it deems appropriate."
7.15 In light of the claims of the Complaining Parties that the measures at issue violated, inter alia,
the SPS Agreement and/or the TBT Agreement, at the time of the orga nizational meeting the Panel
established a deadline for the Parti es to request the Panel to seek appropriate scientific and technical
advice pursuant to the provisions of these agreements.
7.16 On 27 May 2004, the European Communities form ally requested the Panel to seek advice
from scientific and technical experts at an appropriate stage. In particular, the European Communities
suggested that the Panel seek advice from the mo st relevant sources reflecting a representative
spectrum of views, including individual experts a nd perhaps competent international organizations.
Shortly thereafter, the European Communities subm itted a proposal for the terms of reference for
scientific and technical advice. The Complainin g Parties expressed the view that they did not
consider it necessary for the Panel to seek any scientific and technical advice, inter alia because they
were not challenging the opinions or assessments of the EC scientific committees.
7.17 The Panel decided to take a decision regarding the need for expert advisers only in the light of
the second written submissions by the Parties, and provided the Parties with a further opportunity to
comment on the need for expert advice. The Euro pean Communities repeated its request for input
from experts; the Complaining Parties continued to argue that no expert advice was necessary in the
circumstances of this case.

225 Appellate Body Report, US – Shrimp, paras. 104 and 108.

7.18 On 4 August 2004, the Panel informed the Parties that it considered that certain aspects of the
Parties' submissions raised scientific and/or technical issues in respect of which the Panel might
benefit from expert advice. Accordingly, the Pane l decided to consult individual experts to obtain
their opinion on certain scientific and/or technical issues raised in the Parties' submissions.
226 I n
particular, the Panel indicated that it would seek expert advice on three categories of issues:
(a) for each product application, the scientific or technical grounds for: the comments
and/or objections raised by EC member States, the requests for additional
information, and the time taken to evaluate the additional information provided;
(b) for each product for which a safeguard measur e was taken by one of the relevant EC
member States, how the scientific or other documentation relied upon by these
member States compares with various standards for risk assessment, and whether the
documentation relied upon by these member States was sufficient to support the
safeguard measures taken; and
(c) for each biotech product subject to the co mplaint, whether there are significant
differences in the risks arising to human , plant or animal health, or to the
environment, from the consumption and use of: products of biotechnology approved
by the European Communities prior to October 1998; comparable novel non-biotech
products; and foods produced with biotech processing aids.
7.19 Also on 4 August 2004, the Panel decided that it would seek information from certain
international organizations which might assist the Panel in determining the meaning of selected terms
and concepts. Most of these terms and concepts a ppear in the WTO agreements at issue in this
dispute (e.g., "pest"). We note in this regard that the European Communities argued that the Panel
also needed to consult scientific experts on the me aning of the relevant terms. The Complaining
Parties opposed the European Communities' request, arguing that the terms in question were terms
appearing in WTO agreements and that, as such, th e Panel needed to determine their meaning by
applying the customary rules of interpretation of public international law, as required by Article 3.2 of
the DSU.
(a) Consultation of individual experts
7.20 The Panel invited the Parties to suggest specific questions on the three issues it had identified.
All of the Parties suggested specific questions on these issues. In addition, the European
Communities suggested that the Panel seek the advice of at least two experts competent in at the least
the following fields of expertise: agrobiodiversit y, agronomy, allergology, animal husbandry, animal
pathology, biochemistry, biological diversity, control and inspection me thods, crop husbandry, DNA
amplification, ecology, epidemiology, entomolo gy, environmental impact monitoring methods,
environmental sciences, food and feed safety, gene expression, gene sequenc ing, genetics, genetic
modification detection methods, genomic stability , handling transport and packaging methods,
herbicide chemistry, histopathology, immunology, malherberology and weed sciences, medicine,
medical microbiology and antibiosis, molecular biol ogy, nutrition, ornithology, phytopathology, plant
breeding, plant development, plant-microbe inte ractions, plant protection and residues of plant
protection products, plant reproduction and plant bi ology, population genetics, risk assessment and

226 The Panel decided to seek advice from individual scientific and technical experts as no party
formally requested that such information be sought from an expert group. The approach of the Panel is
consistent with the approach followed by previous panels considering alleged violations of the SPS Agreement
and the TBT Agreement.

risk analysis processes, sampling methods, soil chemistry and soil sciences, soil microbiology
therapeutics, toxicology, and veterinary medicine.
7.21 On 19 August 2004, the Panel requested the assistance of the CBD, Codex, FAO, IPPC, OIE
and WHO to identify appropriate experts to address the issues identified above. Thirty individuals
were identified by these organizations, and each of these experts was contacted by the Secretariat.
Those experts who were available and interested in providing advice to the Panel were requested to
provide a curriculum vitae (hereafter "CV"). Ni neteen experts responded positively and their CVs
were provided to the Parties. The Parties were given the opportunity to comment on each expert and
in particular to make known to the Panel any comp elling objections they might have to the Panel's
consulting that individual with respect to the cas e at hand. The Parties submitted their compelling
objections with regard to many of the experts by pointing, for example, that: they were actually
involved in the procedures at issue in this dispute; they were employees of either party to this dispute;
and they had been involved in activities which might cast doubts on their impartiality.
7.22 The Parties were also invited to submit sugges tions for experts with respect to the issues
before the Panel. These experts were also contac ted by the Secretariat, and those interested and
available to assist the Panel were invited to s ubmit a CV. These CVs were also provided to the
Parties, who were again given the opportunity to comment on the experts suggested and to identify
any compelling objections. Seventy additional expert s were identified by the Parties, and CVs were
received from 29 of these.
7.23 On 13 October 2004, the Panel informed the Pa rties of the names of the experts it had
selected. Argentina had expressed objections to one of the experts subsequently selected by the Panel.
The Panel reconsidered the qualifications of the individual concerned, as well as the information
provided by the expert with respect to any potentia l conflicts of interest, and determined that the
objections raised by Argentina did not provide compelling grounds for not selecting this expert.
7.24 According to the additional working procedures for the consultation of experts adopted by the
Panel in consultation with the Parties, the experts were requested to act in their individual capacities
and not as representatives of any organisation. They were not informed of the identities of the other
experts advising the Panel, until such time as th ey were provided with the written responses to the
Panel's questions from all of the experts.
7.25 The experts selected by the Panel were:
Dr. David Andow, Department of Entomology, University of Minnesota, St. Paul,
Minnesota, USA;

 Dr. Marilia Regini Nutti, Director, Nationa l Research Center for Food Technology,
Brazilian Agricultural Research Corporation (EMBRAPA), Rio de Janeiro, Brazil;

Dr. Allison Snow, Department of Evolution, Ecology & Organismal Biology, Ohio State
University, Columbus, Ohio, USA; and

 Dr. Geoff Squire, Scottish Crop Research Institute, Dundee, United Kingdom.

One expert selected by the Panel, Dr. David J. Hill of the Department of Allergy, Royal Children's
Hospital, Melbourne, Australia, subsequently inform ed the Panel that he was unable to assist the
Panel.

7.26 The Parties were consulted with regard to th e questions to be submitted to the experts in
writing. The experts were provided with all relevant parts of the Parties' submissions (including
exhibits and Strictly Confidential Information) on a confidential basis. Each selected expert was
requested immediately to inform the Panel of tho se questions which he/she did not intend to answer
because they did not consider that they had the appr opriate expertise. Following clarification of some
of its written questions, the Panel identified two i ssues on which the selected experts were not likely
to provide advice: the molecular characterization of certain oilseed rape and starch potato products,
and quantitative detection methods.
7.27 On 15 November 2004, the Panel invited the Pa rties to submit names of individuals with
expertise on these two particular issues, prefer ably from among individuals who had previously
indicated their willingness to advise the Panel, and to provide the CV for any new expert they wished
to be considered by the Panel and the other Parties. A total of 22 individuals with expertise in one or
both of these issues were identified by the Parties, including 13 new experts. The Parties were given
an opportunity to comment on each of these experts and to make known any compelling objections to
their selection as advisers to the Panel. The European Communities expressed objections to one of
the additional experts selected by the Panel. Th e Panel reconsidered the qualifications of the
individual concerned, as well as the information provi ded by the expert with respect to any potential
conflicts of interest, and determined that the objections raised by European Communities did not
provide compelling grounds for not selecting this expert to ad dress the two issues identified. The
Panel subsequently selected the following two additi onal experts to respond exclusively to questions
concerning the aforementioned two issues:
 Dr. Marion Healy, Chief Scientist, Food Standards Aust ralia New Zealand (FSANZ), ACT,
Australia;

 Dr. John W Snape, Crop Genetics, John Innes Center, Norwich, United Kingdom.

7.28 The procedures described in paragraph 7.24 above were also followed with respect to
Drs. Healy and Snape.
7.29 The Panel's 114 questions, and the written responses from the experts, are compiled in
Annex H. The questions were sent to the expert s on 22 October 2004, and a dditional questions were
sent on 19 November 2004. The written responses fro m all of the experts to the questions by the
Panel were received on 5 January 2005. The Par ties were given an opportunity to comment on the
replies by the experts, and subsequently to comm ent on the comments of the other Parties. The
Parties' comments were also provided to the experts. On 17-18 February 2005, the Panel met with all
of the experts; the Parties were invited to partic ipate in this meeting. The experts were given the
opportunity to provide further information regarding the questions of the Panel, to respond to the
comments made by the Parties, and to respond to fu rther questions from the Panel and the Parties. A
transcript of the Panel's meeting with the experts is contained in Annex J.
7.30 The Panel wishes to record its appreciation of the experts and of their contributions to the
resolution of this dispute. They provided detailed and comprehensive responses to a large number of
questions from the Panel and the Parties, respecti ng the strict time constraints which had to be
established by the Panel. They provided the ne cessary scientific input to assist the Panel in
understanding the issues raised by the Parties and to r esolve the trade dispute before it. The clarity of
their explanations and their professionalism was particularly appreciated by the Panel.

(b) Consultation of international organizations
7.31 Regarding the Panel's decision to seek informati on from international organizations, it should
be noted that the Parties were consulted both on the international organizations from which
information would be sought and on the list of term s on which information would be sought. Taking
into account the Parties' view, the Panel decided th at it would seek information from the secretariats
of the CBD, Codex, FAO, IPPC, OIE, UNEP and WHO. In December 2004, the Panel contacted
these organizations and invited them to identify a ppropriate standard references (scientific or
technical dictionaries, documents adopted or circul ated by the relevant international organization,
etc.) that would assist the Panel in ascertaining th e meaning of certain terms and concepts. The
Parties were given an opportunity to comment in wr iting on the materials provided to the Panel by the
international organizations.
7.32 The Panel appreciates the assistance provided by the secretariats of the CBD, Codex, FAO,
IPPC, OIE, UNEP and WHO with respect to its requests.
4. Annexes available on-line only
7.33 The Panel has consulted the Parties on the need of including in the panel reports: (i) the
experts' replies to the Panel's questions; (ii) the Parties' comments on these replies and on each other's
comments; (iii) the transcript of the expert mee ting of 17-18 February 2005 ; and (iv) the Parties'
replies to the Panel's and each others' questions. In the event the Parties saw a need for including
these documents in the panel reports, the Panel also sought the views of the Parties on whether the
aforementioned documents could be made available on-line only.
7.34 After consideration of the views expressed by the Parties, the Panel decided to annex the
documents in question to the three reports. However, in order to limit the page number of the paper
copies of the reports circulated to Members, the Panel also decided that, except for the Parties and
Third Parties to this dispute, the relevant annexes would be available electronically only, that is to say,
through the WTO's public web site. The annexes in question are available in the three official WTO
languages and they form an integral part of the three panel reports.
7.35 For clarity, we list below the annexes which are available on-line only:
 – Annex C: Replies by the Parties to Questions Posed by the Panel on 3 June 2004
(11 pages);

 – Annex D: Replies by the Parties to Questions Posed by the Panel in the Context of
the First Substantive Meeting (165 pages);

 – Annex E: Replies by the Parties to Ques tions Posed by Other Parties in the Context
of the First Substantive Meeting (15 pages);

 – Annex F: Replies by the Parties to Qu estions Posed by the Panel and Comments by
the Parties on the Other Parties' Replies in the Context of the Second Substantive
Meeting (191 pages);

 – Annex G: Replies by Third Parties to Questions Posed by the Panel and the Parties
(16 pages);

 – Annex H: Replies by the Scientific E xperts Advising the Panel to Questions Posed
by the Panel (238 pages);

 – Annex I: Comments by the Parties on the Replies by the Scientific Experts to the
Questions Posed by the Panel (391 pages); and

 – Annex J: Transcript of the Panel's Joint Meeting with Scientific Experts of 17 and
18 February 2005 (171 pages).

 – Annex K: Letter of the Panel to the Parties of 8 May 2006 (3 pages).

7.36 The above-mentioned annexes can be found on Documents online (http://docsonline.wto.org/)
with the document symbols, WT/DS291/R, WT/DS292/R, WT/DS293/R, plus addenda.
5. Challenges faced by the Panel in the conduct of the proceedings
7.37 The Panel notes that completing the present proceed ings and preparing the panel reports has,
unfortunately, taken considerably longer than is the case for typical WTO panel proceedings. It is fair
to say, however, that the present proceedings were quite different from typical panel proceedings, and
not just because typical panel proceedings involve one complaint rather than three.
7.38 Four factors in particular have made the c onduct of these proceedings a challenging task for
the Panel and the small group of Secretariat official s assisting it, and have contributed to the delays
that have occurred in the disposition of this case.
227 They are: (i) the volume of materials to be
considered by the Panel, (ii) the need for a dditional fact-finding in the course of the panel
proceedings, (iii) the procedural and substantive complexity of the case, and (iv) the limited
co-ordination of the Complaining Parties' submissions to the Panel. It is useful to offer a few
explanatory observations on each of these factors.
7.39 The volume of the materials to be considered by the Panel in this dispute was, quite simply,
enormous.228 A few facts and figures serve to illustrate this point. The Panel asked a total of 201
written questions of the Parties, and a total of 114 written questions of the six scientific experts
advising it. The Parties posed a total of 22 written questions to each other. The Panel received an
estimated 2580 pages of written submissions (incl uding oral statements, comments relating to the
expert consultation and replies to questions) from the four Parties. An estimated 292 pages were
received from the scientific experts advising the Panel. The Third Parties submitted an additional
102 pages of written submissions (including or al statements and replies to questions).
229 The amici
curiae filed briefs totalling 96 pages. Furthermore, the Parties submitted an estimated total of
3136 documents to the Panel in support of their claims and arguments. 230 While some of these
documents are short, others extend over more than one hundred pages.

227 It is well to recall in this connection that this Panel was established on 29 August 2003, but not
composed until 4 March 2004. Thus, there was an initial delay of more than six months even before the
beginning of the Panel's work.
228 The scientific experts advising the Panel also expressed this sentiment.
229 We note that Norway alone submitted a total of 53 pages of submissions to the Panel.
230 Of the estimated 3136 documents submitted to the Panel, the Complaining Parties submitted
417 documents and the European Communities 2719 documents. We note that there is some double-counting
involved in our estimate in that the Complaining Parties in part submitted the same exhibits. The
2719 documents submitted by the European Communities include the documents provided in response to the
Panel's request for information.

7.40 Another characteristic of these proceedings was the fact that very substantial amounts of
information were exchanged among the Parties, not before, but during the panel proceedings. What is
more, most of that information was not provided to the Panel until after the first substantive meeting
of the Panel with the Parties. More specifically , the European Communities indicated at the first
substantive meeting that the Panel was still lacking certain important information which the European
Communities alleged supported its position in this case. The European Communities stated that it
was willing to provide that information, but noted th at it was to a large extent in the possession of its
member States. The European Communities told the Panel that a formal request for information from
the Panel would assist it in obtaining the information from its member States. With the support of the
Complaining Parties, the Panel then sought add itional information of the European Communities
pursuant to Article 13 of the DSU.
7.41 While much information was subsequently pr ovided by the Europ ean Communities, the
information submitted was in important respects incomplete, numerous documents had not been
translated into an official WTO language, and the way the European Communities initially numbered
its own exhibits was confusing. This led the Panel to request the missing information, translation of
relevant documents and a more user-friendly sy stem for numbering exhibits. The European
Communities complied with the Panel's follow-up request. However, in view of the delayed
provision of the information requested by the Pa nel, the Complaining Parties requested that the
second substantive meeting be postponed for several months and that they be given an opportunity,
prior to the second substantive meeting, to make further written submissions (hereafter "third written
submissions") with regard to the new information provided by the European Communities. The Panel
acceded to these two requests.
231
7.42 The above-mentioned situation meant that the Pa nel and Complaining Parties did not have all
the information requested of the European Co mmunities until seven months after the Panel was
composed, and that the second substantive meeting, which at the Parties' request was held back-to-
back with the Panel's meeting with the experts, wa s not held until almost one year after the Panel was
composed. It is clear that if the information pr ovided by the European Co mmunities in the course of
the proceedings had been available to the Compla ining Parties from the outset, the proceedings could
have been conducted more efficiently and with a clearer focus.232
7.43 The third factor we have identified is the pro cedural and substantive complexity of the case.
On the procedural side, we have already menti oned the extensive fact-finding which had to be
undertaken in the course of the proceedings. 233 We have also mentioned the expert selection process

231 We note that the scheduling of the second substantive meeting was also linked to the Parties' request
that that meeting be held immediately following the Panel's meeting with the experts. In order for the experts to
be able to reply to the Panel's questions, the experts need ed to be given sufficient time to familiarize themselves
with the entirety of the information submitted to the Panel.
232 As we do not have the facts to determine why more information was apparently not gathered or
provided at an earlier stage in these dispute settlement proceedings, we can only re-emphasize what the
Appellate Body stated in India – Patents (US):
All parties engaged in dispute settlement under the DSU must be fully forthcoming from the
very beginning both as to the claims involved in a dispute and as to the facts relating to those
claims. Claims must be stated clearly. Facts mu st be disclosed freely. This must be so in
consultations as well as in the more formal setting of panel proceedings. In fact, the demands
of due process that are implicit in the DSU make this especially necessary during
consultations. (Appellate Body Report, India – Patents (US), para. 94.)
233 As an aside, we note that in connection with this fact-finding process we put in place, in
consultation with the Parties, a special set of procedures for the protection of strictly confidential information
(hereafter "SCI"), notably because of sensitive company information submitted by the European Communities.

and the process through which we have identified the questions to be asked of the experts. In addition
to this, a very large number of letters were exch anged between the Panel a nd the Parties on various
other procedural and organizational matters. T hus, until the second substantive meeting with the
Parties most of the Panel's time was spent either attending to the aforementioned procedural matters
or studying the Parties' submissions. Regarding th e substantive aspects of this case, we note that the
Panel's work was made difficult not just because of th e often technical and/or scientific nature of the
material submitted to us, but also because the Partie s' submissions raised a series of fundamental legal
issues (e.g., concerning the scope of the SPS Agreement) which required careful consideration.
7.44 The last factor to be explained is the limit ed co-ordination of the Complaining Parties'
submissions to the Panel. By this we mean that, with few exceptions, the Complaining Parties did not
put forward the same arguments or adopt each ot hers' arguments. We recognize that since the
Complaining Parties' brought three legally distinct complaints, they were under no obligation to co-
ordinate their submissions to the Panel. We also recognize that the measures challenged and the
claims presented by the Complaining Parties were not identical. However, there is a significant
overlap among the three complaints. Given the co mplexity of this case and the vast amount of
information to be taken into account, it would have alleviated our burden – and that of the Responding
Party – if the Complaining Parties had been able mo re consistently to provide the same, or at least
substantially the same, argumentation on common elements of their complaints.
234 Indeed, in view of
the differences among the Complaining Parties' subm issions, even simple tasks, like summarizing the
Complaining Parties' arguments on a particular issue, required much time. Needless to say, the
submission of different arguments by the Complaining Parties also meant that there were more
arguments which the Panel needed to consider and address in its reports.
7.45 While the four foregoing factors have contributed to the successive delays in the disposition
of this case, we furthermore note another factor which contributed to, at least, the last postponement
of the deadline for our interim report: the reduced availability of some of the Secretariat staff assisting
the Panel, notably because of the preparations for the Ministerial Conference in Hong Kong. Due to
the need for familiarity with the case file it was not possible adequately to address this problem by
assigning other staff to the case.
7.46 Having outlined some of the challenges faced by the Panel, we want to acknowledge that each
of the Parties to this dispute, and perhaps Argen tina in particular given its status as a developing
country Member, has faced considerable difficulties of its own in coping with all the information put
before the Panel, in responding to the claims and arguments presented by the other Parties and in
meeting the generally tight deadlines imposed by th e Panel. At the end of the second substantive
meeting, the Panel expressed its appreciation for th e Parties' co-operation a nd for their contributions,
which had to be made under difficult circumstances.
6. Consistency of the Complaining Parties' panel requests with Article 6.2 of the DSU
7.47 On 8 April 2004, the Panel issued a preliminary ruling in response to a request by the
European Communities that the separate requests for the establishment of a panel made by the United
States, Canada and Argentina are inconsistent with the requirements of Article 6.2 of the DSU. The
Panel's preliminary ruling is reproduced below as it wa s sent to the Parties, with original footnotes
appearing as endnotes at the end of the reproduced ruling.

234 We note in this regard that in the panel proceedings in US – Steel Safeguards the eight complaining
parties at least in part divided among themselves the argumentation on common elements of their complaints.
Panel Report, US – Steel Safeguards, para. 10.726.

"1. Procedural background
1. On 8 March 2004, the European Communities submitted to the Panel a
request for a preliminary ruling. The European Communities requested that the Panel
rule, as early as possible in the proceedi ngs, that the separate requests for the
establishment of a panel (hereafter "panel requests") made by the United States
1,
Canada2 and Argentina 3 are inconsistent with the requi rements of Article 6.2 of the
DSU.
2. After consultations with the parties re garding the procedural implications of
the European Communities' preliminary rulin g request, the Panel decided to issue a
preliminary ruling before the due date of the Complaining Parties' first written
submissions. The Panel gave an opportuni ty to the Complaining Parties to submit
written comments on the European Communities' request and also invited the third
parties to submit any written comments they might have in response to the views
expressed by the parties. 4 The Complaining Parties filed their comments on 24
March 2004. The third parties' comments were due on 29 March 2004, but none were
filed. The Panel also put a number of written questions to the parties. The parties
provided written replies to these questions on 29 March 2004. The Panel issued its
ruling to the parties and third parties on 8 April 2004.
2. The European Communities' request for a preliminary ruling
3. Article 6.2 of the DSU provides in relevant part:
The request for the establishment of a panel shall [… ] identify the
specific measures at issue and provide a brief summary of the legal
basis of the complaint sufficient to present the problem clearly.
4. In respect of Article 6.2 the Appellate Body observed that:
[… ] compliance with the requirements of Article 6.2 must be
demonstrated on the face of the request for the establishment of a
panel. Defects in the request for the establishment of a panel cannot
be "cured" in the subsequent submissions of the parties during the
panel proceedings.
5 [… ] Moreover, compliance with the
requirements of Article 6.2 must be determined on the merits of each
case, having considered the panel requ est as a whole, and in the light
of attendant circumstances. 6
5. In its preliminary ruling request of 8 March 2004, the European
Communities asserts that the Complaining Parti es' panel requests fail to satisfy the
requirements set out in Article 6.2 of the DSU, specifically, the requirement to
identify the specific measures at issue, and the requirement to provide a brief
summary of the legal basis of the complaints sufficient to present the problem clearly.
According to the European Communities, the requirement to identify the specific
measures at issue is not met because the Comp laining Parties' panel requests speak of
two distinct measures – one being th e "suspension of consideration of
applications/approvals" and the other being th e "failure to grant approvals" – but fail
to describe what these measures consist of. Regarding the requirement to provide a

summary of the legal basis of the comp laints, the European Communities further
asserts that the Complaining Parties' pane l requests do not meet this requirement
because they merely list a large number of provisions and fail to indicate which
provisions are alleged to be violated by which measures. In the European
Communities' view, the Panel's jurisdiction cannot, therefore, be clearly defined and
the European Communities has been prevented from properly preparing its defence.
6. The Complaining Parties all consider that the European Communities'
preliminary ruling request lacks merit and that it should, therefore, be rejected. In
particular, the Complaining Parties consider that their panel requests clearly specify
the specific measures in dispute. According to the Complaining Parties, what the
European Communities is asking in this case is that the Panel require the
Complaining Parties to identify the evidence supporting the existence of the measures
identified. The Complaining Parties further consider that, contrary to what the
European Communities suggests, their pane l requests do provide a brief summary of
the legal basis of the complaints sufficien t to present the problem clearly. In the
Complaining Parties' views, the European Communities' arguments in respect of the
summary of the legal basis are based on a s uggestion which has already been rejected
by the Appellate Body, namely, that a complaining party must summarize its legal
arguments in its panel request. Finally, th e Complaining Parties argue that, in any
event the European Communities has failed to establish its claim that its ability to
defend itself has been prejudiced by the alleged lack of specificity in the Complaining
Parties' panel requests.
7
7. The Panel will first address the European Communities' assertion that the
Complaining Parties' panel requests do not meet the requirement to identify the
specific measures at issue. Thereafter, the Panel will examine the European
Communities' assertion that the panel request s fail to satisfy the requirement to
provide a brief summary of the legal basis of the complaints sufficient to present the
problem clearly. Should the Panel find that any of the panel requests falls short of
either of the two aforementioned requirements, the Panel will proceed to address the
issue of the prejudice, if any, suffered by the European Communities as a result of the
allegedly defective panel request(s).
3. Identification of the specific measures at issue
(a) Relevant text of the panel requests at issue
(i) The United States' panel request
8. The United States' panel request de scribes the relevant EC measures as
follows:
8
 Since October 1998, the European Communities ("EC") has
applied a moratorium on the appr oval of products of agricultural
biotechnology ("biotech products"). Pursuant to the moratorium, the
EC has suspended consideration of applications for, or granting of,
approval of biotech products under the EC approval system. In
particular, the EC has blocked in the approval process under EC
legislation
9 all applications for placing biotech products on the
market, and has not considered any application for final approval.

The approvals moratorium has restricted imports of agricultural and
food products from the United States.
 In addition, EC member States maintain a number of national
marketing and import bans on biot ech products even though those
products have already been approved by the EC for import and
marketing in the EC. The nationa l marketing and import bans have
restricted imports of agricultural and food products from the United
States.
 The measures affecting biotech products covered in this
panel request are:
 (1) as described above, the suspension by the EC of
consideration of applications fo r, or granting of, approval of
biotech products;
 (2) as described above, the failure by the EC to consider
for approval applications for th e biotech products mentioned
in Annexes I and II to this request; and
 (3) national marketing and import bans maintained by
member States, as described in Annex III to this request.
(ii) Canada's panel request
9. Canada's panel request describes the relevant EC measures as follows:
10
 Since October 1998, the European Communities ("EC") has
maintained a moratorium on the appr oval of products of agricultural
biotechnology, which are food or food ingredients that contain or
consist of, or are produced from, genetically modified organisms, and
genetically modified organisms intended for release into the
environment ("biotech products"). The EC effectively has suspended
the consideration of applications for approval of biotech products,
and the granting of approvals for those products, under the relevant
EC approvals processes.
11 Specific examples of such applications,
and a brief description of the actions taken to block their
consideration or approval, are set out in Annex I.
 In addition to the moratorium, France, Greece, Austria and
Italy maintain national measures prohibiting the importation,
marketing or sale of biotech products that had already been approved,
prior to October 1998, under the relevant EC
 approvals processes, for
importation, marketing or sale in the EC. These national measures,
and the products to which they apply, are identified in Annex II.
 [… ]

 The measures covered in this panel request are:
 1. the general suspension by the EC of its own
processes for the consideration of applications for, and the
granting of, approval for biotech products;
 2. the failure by the EC to consider or approve, without
undue delay, applications for approval of the products
identified in Annex I; and
 3. the national measures identified in Annex II
prohibiting the importation, marketing or sale of the
specified EC-approved biotech products.
(iii) Argentina's panel request
10. Argentina's panel request describes the relevant EC measures as follows:
12
 The European Communities has applied a de facto
moratorium on the approval of agricultural biotechnology products
since October 1998. This de facto moratorium 13 has led to the
suspension of and failure to cons ider various applications for
approval of agricultural biotechnol ogy products as well as to undue
delays in finalizing the processing of applications for the approval of
such products under Community legislation.14
 Furthermore, several EC member States have introduced
bans on a number of agricultural biotechnology products which have
already been approved at Community level, thereby infringing both
WTO rules and Community legislation.
 This action taken by the European Communities [… ]
adversely affects agricultural biotechnology products from
Argentina.
 The measures at issue and in relation to which the
establishment of a panel is requested are as follows:
 (1) Suspension of consideration of and failure to
consider various applications for endorsement or approval of
agricultural biotechnology products;
 (2) undue delays in finalizin g consideration of various
applications for approval of agricultural biotechnology
products; and
 (3) bans on agricultural biotechnology products
introduced by EC member States
15 which infringe both WTO
rules and Community legislation.

(b) Analysis
11. The European Communities notes that all three panel requests make an
explicit distinction between, on the one hand, an alleged "suspension" of the approval
process and, on the other hand, an alle ged "failure" to act. The European
Communities asserts that it is "in the dark" on the meaning of the reference to an
alleged "suspension" because none of thr ee panel requests contains any explanation
or description of what the alleged "suspe nsion" is as opposed to the "failure" to
proceed in the approval process.
12. The European Communities argues that if the Complaining Parties intended
to use the term "suspension" to refer to the action of blocki ng the approval process,
then that action is not described anywhere . The European Communities notes in this
regard that there is no indication in the pa nel requests whether there is some kind of
executive or normative act (e.g., moratorium legislation) pursuant to which the
European Communities would have proceeded to suspend the approval process. If,
on the other hand, the Complaining Parties in tended to use the term "suspension" to
refer to a situation where "nothing is ha ppening", then it would seem impossible to
distinguish "suspension" from the alleged in action – the failure to consider or grant
approvals. In the European Communities' view, if a Member is supposed to defend
itself against two distinct measures, what these are and how they differ from each
other should be specified in the panel request.
13. Based on the foregoing, the European Communities requests the Panel to find
that by speaking of two distinct measures, one being the suspension of consideration
of applications, or of approvals, and the other being the failure to grant approvals,
without describing what these two measures consist of, the panel requests do not
"identify the specific measures at issue".
14. The Panel notes that the three panel re quests use different wording to
describe the measures at issue. Therefore, the Panel will consider the three panel
requests separately.
15. Before proceeding to consider the thr ee panel requests, it is useful to recall
that the requirement to "identify the speci fic measures at issue" has recently been
addressed by the panel in Canada – Measures Relating to Exports of Wheat and
Treatment of Imported Grain . That panel found that "the ordinary meaning of the
phrase 'identify the specific measures at issu e' is 'to establish the identity of the
precise measures at issue'".
16 The panel then went on to state the following:17
In considering whether a panel request can be said to have identified
the specific, or precise, measures at issue, we find relevant the
statement by the Appellate Body that whether the actual terms used
in a panel request to identify the measures at issue are sufficiently
precise to meet the requirements of Article 6.2 "depends [… ] upon
whether they satisfy the purposes of [those] requirements".
18 We
also find relevant the statement by the Appellate Body that
"compliance with the requirements of Article 6.2 must be determined
on the merits of each case, having considered the panel request as a
whole, and in the light of attendant circumstances".

[… ]
We consider that in the absence of an explicit identification of a
measure of general application by name, [… ] sufficient information
must be provided in the request for establishment of a panel itself
that effectively identifies the pr ecise measures at issue. Whether
sufficient information is provided on the face of the panel request
will depend, as noted above, on wh ether the information provided
serves the purposes of Article 6.2, and in particular its due process
objective, as well as the specific circumstances of each case,
including the type of measure that is at issue.
16. The Panel agrees with this analysis and, accordingly, will follow it in this
case.
(i) The United States' panel request
17. The United States argues that the European Communities does not and
cannot explain how the United States' description of the measures at issue amounts to
a failure to meet the requirement of Artic le 6.2 "to identify the specific measures
issue". According to the United States, it is difficult to see how the concept of a
"suspension" of the consideration and granti ng of approvals is at all ambiguous. The
United States considers that in the light of statements by EC officials acknowledging
the existence of a de facto moratorium, the European Communities' claim that the
meaning of "suspension" is unclear is no t credible. The United States further argues
that the European Communities cannot profit from its own lack of transparency by
arguing that the United States has not identified the moratorium with sufficient
specificity.
18. The United States also asserts that, in the context of its panel request, the
reason for using the phrases "the suspension of consideration" and "the failure to
consider" is quite clear. The first phrase is used to describe the European
Communities' "across-the-board moratorium affecting all biotech products". The
second phrase is used to describe the Europ ean Communities' conduct as it affects the
specific products identified in the annexes to the panel request. According to the
United States, the two phrases are "simply two different wordings for the same
concept", although the word "suspension" f its better with the European Communities'
conduct as it affects all biotech applications, while the phrase "failure to consider" fits
better with specific applications.
19. The Panel begins its analysis by recalling th at the first measure referred to in
the United States' panel request is described as follows:
"(1) as described above, the suspension by the EC of consideration of
applications for, or granting of, approval of biotech products".
20. The noun "suspension" is defined as "the action of suspending or the
condition of being suspended".
19 In turn, the verb "to suspend" is defined as "to halt
temporarily".20 It is clear from these dictionary definitions that the measure the
United States is complaining about is the "temporary halting" by the European

Communities of the consideration of appli cations for approval of biotech products
and of the granting of approval for such products.
21. The introductory paragraph of the United States' panel request provides
additional information on the first measur e referred to in the panel request.
21 In
particular, the introductory paragraph expl ains that the European Communities has
suspended the consideration of applications and the granting of approvals of biotech
products "pursuant to" an "approvals mora torium" which the European Communities
has allegedly "applied" "[s]ince October 1998". In a footnote to the introductory
paragraph, the United States also identifies relevant EC approval legislation by name
and place and date of publication.
22. The European Communities has pointed out that the United States' panel
request refers to an "approvals moratorium " without identifying, either by name or
date of adoption, any executive decree or legislative act through which the
moratorium has been implemented. In response, the United States notes that the
moratorium in question is a " de facto measure"22. We recall in this connection that
the panel in Canada – Wheat Exports and Grain Imports observed that a
determination of whether a panel request contains sufficient information that
effectively identifies the precise measur es at issue must take into account, inter alia,
"the specific circumstances of each case, in cluding the type of measure that is at
issue".23 The panel in Canada – Wheat Exports and Grain Imports distinguished
between measures of general application and particular actions taken pursuant to such
measures.24 We consider that another appropriate distinction is that between formal
(de iure) governmental measures and informal ( de facto) governmental measures. 25
In our view, the informal nature of a gove rnmental measure may affect the degree of
precision with which such a measure can be set out in a panel request. Notably, it
will often not be possible to identify in formal measures by their name, date of
adoption and/or legal status.
23. In the present case, it is unclear whether the United States could have
identified the alleged de facto moratorium with more specificity than it has. The
United States alleges that the European Communities has not been sufficiently
transparent with respect to the alleged mo ratorium. The United States notably asserts
that, during the consultations prior to the establishment of the Panel, the European
Communities denied that the moratorium even exists although EC officials had
previously acknowledged its existence in public statements.
26 As indicated above, the
European Communities mentions that the panel request does not describe whether
there is "supposed to be a decision or some other kind of normative or executive act,
perhaps a moratorium legislation of the kind New Zealand had". 27 However, the
European Communities has adduced no evid ence which would support the view that
the United States could have described the alleged de facto moratorium with greater
precision. We recall in this regard that, for the purposes of this preliminary ruling, it
is the European Communities as the party cl aiming an inconsistency with Article 6.2
which bears the burden of proof.
24. Even assuming that the United States c ould have provided fu rther details on
the alleged de facto moratorium, we consider that the description of the first measure
covered in the panel request, when read t ogether with the introductory paragraph,
adequately identifies the specific measure that is being challenged. In our view, the
information provided is sufficient to meet the due process objective inherent in

Article 6.2 of the DSU. In particular, the European Communities has not persuaded
us that the information contained in th e description of the first measure and the
introductory paragraph does not allow the European Communities to "begin preparing
its defence"
28 in a meaningful way.29
25. Before reaching a final conclusion, however, we need to consider the
European Communities' argument that the refe rence to "suspension of consideration"
in the description of the first measure covere d in the United States' panel request is so
similar to the reference to "failure to c onsider" in the description of the second
measure that it is effectively impossible, in the absence of some explanation in the
panel request, to know the difference between the first and second measure set out in
the United States' panel request.
26. The United States submits that the phr ases "suspension of consideration" in
the description of the first measure and "failu re to consider" in the description of the
second measure are intended to express the same general idea. 30 But this does not
mean that the first and second measure set out in the United States' panel request are
essentially indistinguishable. As the United States has pointed out, the first measure
concerns applications for approval of "biotech products", that is to say, applications
for approval of any and all biotech products. In contrast, the second measure
concerns applications for approval of "the biotech products mentioned in Annexes I
and II to this request". Thus, it is clear to us from the descriptions of the two
measures in the United States' panel request that the first measure has a broader
product scope than the second measure.
27. In the light of this im portant difference in the description of the two measures
in question, we do not agree with the Eu ropean Communities that "by speaking of
two distinct measures, one being the suspen sion of consideration of applications/of
approvals, and the other being th e failure to grant approvals"
31, the United States'
panel request fails to identify the specific measures at issue.
28. In conclusion, we find that the Eu ropean Communities has failed to establish
that the United States' panel request, and in particular the reference to an alleged
"suspension" of the approval processes, does not satisfy the requirement in Article 6.2
to identify the specific measures at issue.
(ii) Canada's panel request
29. Canada argues that the phrase "the general suspension by the EC of its own
processes for consideration of applications for, and the granting of, approval of
biotech products" sufficiently identifies th e specific measure at issue. Canada
submits that the aforementioned phrase is a more detailed description of the
moratorium referred to in the introductory paragraph of Canada's panel request. 32
Canada further points out that, in Annex I, its panel request sets out specific examples
of applications for approval of biotech products, including a brief description of the
actions taken to block their consideration or approval. According to Canada, the
repeated failures by the European Communities to consider or approve these
applications are examples of the moratorium. Canada also notes that the moratorium
has not been formally adopted. Canada submits that if the European Communities
had adopted the moratorium as a form al measure and complied with various
transparency requirements of the WTO Agreement , Canada would have been in a

position to identify the moratorium by name, date of adoption, etc. Canada argues
that the European Communities cannot use its own lack of regulatory transparency as
a shield against a WTO challenge. Canada ob serves, finally, that it is in any event
difficult to understand that the European Communities is unable to identify the
measure at issue. According to Canada, the existence of the moratorium has been
widely recognized and discussed by EC officials.
30. Canada further submits that the phr ases "the general suspension" and "the
failure to consider or approve" are used to describe different aspects of the European
Communities' conduct. Canada notes in this regard that the phrase "general
suspension" is used to describe the Europ ean Communities' conduct in relation to the
whole class of biotech products, while the phr ase "failure to consider or approve" is
used to describe the Europ ean Communities' conduct as it affects the four specific
products identified in Annex I to the panel request.
31. The Panel recalls that the first measure refe rred to in Canada's panel request
is described as follows:
"1. the general suspension by the EC of its own processes for
consideration of applications for, and the granting of,
approval of biotech products".
32. As noted above
33, it is clear from the dictionary meanings of the word
"suspension" that the measure Canada is co mplaining about is the general "temporary
halting" by the European Communities of its own processes for the consideration of
applications for approval of biotech products and for the granting of approval for such
products.
33. The introductory paragraph of Cana da's panel request provides additional
information on the first measure referred to in the panel request. In particular, the
introductory paragraph explains that "[s]ince October 1998", the European
Communities has "maintained" a "moratorium" on the approval of biotech products
and that the European Communities has "effe ctively" suspended the consideration of
applications and the granting of approvals of biotech products under the relevant EC
approval processes. In a footnote to the in troductory paragraph, Canada identifies by
name and place and date of publication EC legislation which sets out the relevant
approval processes.
34. The European Communities has pointed out that Canada's panel request
refers to a "moratorium" without identifying, either by name or date of adoption, any
executive decree or legislative act through which the moratorium has been
implemented. Canada notes in this regard that the moratorium has not been adopted
as a formal legal measure. As we have noted above
34, in our view, the informal
nature of a governmental measure may affect the degree of precision with which such
a measure can be set out in a panel request. In the present case, it is unclear whether
Canada could have identified the alleged de facto moratorium with more specificity
than it has. Canada argues in this resp ect that the European Communities should not
be allowed to profit from its own lack of regulatory transparency. In addition,
Canada asserts that the existence of th e moratorium has been recognized by EC
officials in public statements.35 As indicated above36, the European Communities has

adduced no evidence which would support the view that Canada could have described
the alleged de facto moratorium with greater precision.
35. Even assuming that Canada could have provided further details on the alleged
de facto moratorium, we consider that the description of the first measure covered in
the panel request, when read together with the introductory paragraph, adequately
identifies the specific measure that is being challenged. In our view, the information
provided is sufficient to meet the due process objective inherent in Article 6.2 of the
DSU. In particular, the European Communities has not persuaded us that the
information contained in the description of the first measure and the introductory
paragraph does not allow the European Communities to "begin preparing its
defence"
37 in a meaningful way.38
36. Before reaching a final conclusion, however, we need to consider the
European Communities' argument that the re ference to "the general suspension" in
the description of the first measure covered in Canada's panel request is so similar to
the reference to "the failure to consider or approve" in the description of the second
measure that it is effectively impossible, in the absence of some explanation in the
panel request, to know the difference between the first and second measure set out in
Canada's panel request.
37. We note Canada's explanation that th e references to "the general suspension"
in the description of the first measure and to "the failure to consider or approve" in
the description of the second measure reflect the fact that the two measures concern
different aspects of the European Communitie s' conduct. According to Canada, the
reference to "the general suspension" is used because the first measure concerns
applications for approval for "biotech products". In other words, as Canada puts it,
the first measure concerns the European Communities' conduct in relation to the
whole class of biotech products. Regarding the reference to "the failure to consider or
approve", Canada notes that it was used because the second measure concerns the
European Communities' conduct in relation to specific applications for approval of
the four biotech products "identified in Anne x I". In our view, Canada's explanation
is consistent with a natural reading of the descriptions in question. That the first
measure has a broader product scope than th e second measure is further confirmed by
the fact that Canada refers to the general suspension by the European Communities of
"its own processes" for the consideration of applications for, and the granting of,
approval of biotech products. The appr oval processes in question would appear to
apply to all qualifying biotech products, not ju st the four identified in the annex to
Canada's panel request.
38. In the light of this im portant difference in the description of the two measures
in question, we do not agree with the Eu ropean Communities that "by speaking of
two distinct measures, one being the suspen sion of consideration of applications/of
approvals, and the other being th e failure to grant approvals" 39, Canada's panel
request fails to identify the specific measures at issue.
39. In conclusion, we find that the Eu ropean Communities has failed to establish
that Canada's panel request, and in particul ar the reference to an alleged "general
suspension" of the approval processes, does not satisfy the requirement in Article 6.2
to identify the specific measures at issue.

(iii) Argentina's panel request
40. Argentina argues that the word "suspension" can be easily understood by
reading the relevant paragraph, which links the word suspension to the phrase
"various applications for approval of agricultural biotechnology products". Argentina
submits that it is clear that the measure at issue is the de facto suspension of
consideration of various applications within the pipeline defined by the EC regulatory
scheme. Argentina further notes that the second paragraph of its panel request makes
clear that the action which led to the suspension of consideration of various
applications is the de facto moratorium applied by the European Communities.
According to Argentina, the type of measu re at issue necessarily affects the extent
and nature of information required to present a claim. Argentina recalls in this
respect the informal nature of the EC mo ratorium which, Argentina says, is not
contained in a particular legal act or executive order.
41. Regarding the distinction between th e phrases "suspension of consideration"
and "failure to consider", Argentina not es that "suspension of consideration"
describes a situation where applications have been considered but where the
consideration is suffering a delay, whereas "f ailure to consider" describes a situation
where applications were submitted but there is a failure to consider them. Argentina
points out that the status of various appli cations within the EC regulatory scheme is
an issue that was discussed at length during consultations with the European
Communities.
42. The Panel recalls that the first measure re ferred to in Argentina's panel
request is described as follows:
(1) Suspension of consideration of and failure to consider
various applications for endorseme nt or approval of agricultural
biotechnology products.
43. As noted above
40, it is clear from the dictionary meanings of the word
"suspension" that what Argentina is comp laining about is the "temporary halting" by
the European Communities of the consideration of various applications for
endorsement or approval of biotech products.
44. The second paragraph of Argentina' s panel request provides additional
information on the first measure re ferred to in the panel request.
41 In particular, the
second paragraph explains that "[s]ince October 1998", the European Communities
has "applied" a " de facto moratorium"42 on the approval of biotech products, which
has "led to the suspension of and failure to consider various applications for approval
[...] under Community legislation". In a footnote to the second paragraph, Argentina
also identifies relevant EC legislation by name and place and date of publication.
45. The European Communities has pointed out that Argentina's panel request
refers to a "moratorium" without identifying, either by name or date of adoption, any
executive decree or legislative act through which the moratorium has been
implemented. Argentina responds that the nature of the measure in question, which
in this case is a de facto measure, necessarily affects the extent and nature of the
information that needs to be provided. As we have noted above
43, in our view, the
informal nature of a governmental measure may affect the degree of precision with

which such a measure can be set out in a panel request. In the present case, it is
unclear whether Argentina could have identified the alleged de facto moratorium with
more specificity than it has. Argentina suggests that the Panel should resist what it
considers is an effort by the European Communities to obtain a detailed factual
description of the alleged moratorium. In Argentina's view, it is not necessary to
provide a detailed factual description in a pa nel request, since this is a matter to be
dealt with in the course of the panel proceedings. As indicated above
44, the European
Communities has adduced no evidence which would support the view that Argentina
could have described the alleged de facto moratorium with greater precision.
46. Even assuming that Argentina could have provided further details on the
alleged de facto moratorium, we consider that the description of the first measure
covered in the panel request, when read together with the second paragraph,
adequately identifies the specific measure that is being challenged. In our view, the
information provided is sufficient to meet the due process objective inherent in
Article 6.2 of the DSU. In particular, the European Communities has not persuaded
us that the information contained in th e description of the first measure and the
second paragraph does not allow the European Communities to "begin preparing its
defence"
45 in a meaningful way.46
47. Before reaching a final conclusion, however, we need to consider the
European Communities' argument that the refe rence to "suspension of consideration"
in Argentina's description of the first measure is so similar to the reference to "failure
to consider" in the description of the same measure that it is effectively impossible, in
the absence of some explanation in the pa nel request, to know the difference between
these two aspects.
48. We note Argentina's explanation th at the references to "suspension of
consideration" and to "failure to consider" reflect the fact that various applications for
approval have been affected by the de facto moratorium at different stages of the
approval process. According to Argentina, some applications were considered and
then the consideration was suspended, while others were submitted for consideration,
but were not in fact considered. We have no difficulty accepting Argentina's
explanation. We think Argentina's explan ation is consistent with the ordinary
meaning of the phrases "suspension of cons ideration" and "failure to consider" 47, and
we do not, therefore, consider that it was necessary for Argentina's panel request to
provide further explanation in this regard.
49. In the light of this, we do not agree with the European Communities that "by
speaking of two distinct measures, one be ing the suspension of consideration of
applications/of approvals, and the other being the failure to grant approvals"
48,
Argentina's panel request does not properly identify the specific measures at issue.
50. In conclusion, we find that the Eu ropean Communities has failed to establish
that Argentina's panel request, and in pa rticular the reference to an alleged
"suspension" of the approval processes, does not satisfy the requirement in Article 6.2
to identify the specific measures at issue.

4. Provision of a brief summary of the legal basis of the complaint sufficient
to present the problem clearly
51. The Panel next turns to examine th e European Communities' assertion that
the Complaining Parties' panel requests do not provide a brief summary of the legal
basis of the complaints sufficient to present the problem clearly.
(a) Relevant text of the panel requests at issue
(i) The United States' panel request
52. The United States' panel request su mmarizes the legal basis of the United
States' complaint as follows:
49
 These measures appear to be inconsistent with the following
provisions of the Agreement on the Application of Sanitary and
Phytosanitary Measures ("SPS Agreement"), the General Agreement
on Tariffs and Trade 1994 ("GATT 1994"), the Agreement on
Agriculture ("Agriculture Agreement"), and the Agreement on
Technical Barriers to Trade ("TBT Agreement"):
 (1) SPS Agreement, Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7
and 8, and Annexes B(1), B(2), B(5), C(1)(a), C(1)(b), and
C(1)(e);
 (2) GATT 1994, Articles I:1, III:4, X:1, and XI:1;
 (3) Agriculture Agreement, Article 4.2; and
 (4) TBT Agreement, Articles 2.1, 2.2, 2.8, 2.9, 2.11,
2.12, 5.1.1, 5.1.2, 5.2.1, 5.2.2, 5.6 and 5.8.
The EC's measures also appear to nullify or impair the benefits
accruing to the United States directly or indirectly under the cited
agreements.
(ii) Canada's panel request
53. Canada's panel request summarizes the legal basis of Canada's complaint as
follows:
50
 These measures are inconsistent with the obligations of the
EC under the SPS Agreement, the TBT Agreement, the Agreement
on Agriculture and the GATT 1994. In particular, the measures
violate the following provisions of these agreements:
• Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7, 8, and paragraphs 1, 2
and 5 of Annex B, and paragra phs 1(a), 1(b), 1(c), and 1(e)
of Annex C of the SPS Agreement;

• Articles 2.1, 2.2, 2.8, 2.9, 2.11, 2.12, 5.1, 5.2.1, 5.2.2, 5.2.3,
5.6 and 5.8 of the TBT Agreement;
• Articles I:1, III:4, X:1 and XI:1 of the GATT 1994;
• Article 4.2 of the Agreement on Agriculture.
 These violations nullify or impair the benefits accruing to
Canada under these agreements. In addition, the measures nullify
and impair the benefits accrui ng to Canada in the sense of
Article XXIII:1(b) of the GATT 1994.
(iii) Argentina's panel request
54. Argentina's panel request summari zes the legal basis of Argentina's
complaint as follows:
51
 The measures in question taken by the European
Communities and several of its member States infringe the following
provisions of the WTO Agreements:
 (a) Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 7, 8 and 10.1 and
Annexes B(1) and (5) and C(1)(a), (b), (c), (d) and (e) of the
Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement);
 (b) Article 4.2 of the Agreement on Agriculture (AoA);
 (c) Articles I.1, III.4, X.1, X.3(a) and XI.1 of the GATT
1994;
 (d) Articles 2.1, 2.2, 2.8, 2.9, 2.11, 5.1, 5.2.1, 5.2.2,
5.2.3, 5.2.4, 5.6, 5.8 and 12 of the Agreement on Technical
Barriers to Trade (TBT Agreement).
 The measures at issue nullify or impair the benefits accruing
to Argentina under these Agreements.
(b) Analysis
55. The European Communities asserts that none of the Complaining Parties'
panel requests provides a brief summary of the legal basis of the complaints sufficient
to present the problem clearly. Specifically, the three panel requests do not make it
clear (1) which obligations are alleged to be violated and (2) which measures are in
violation of which obligations.
56. The Panel will address the two issues identified by the European
Communities separately.
57. Before going further, it is useful br iefly to set out relevant Appellate Body
jurisprudence. Thus, in Thailand – H-Beams, the Appellate Body observed that:
52

Article 6.2 of the DSU calls for sufficient clarity with respect to the
legal basis of the complaint, that is , with respect to the "claims" that
are being asserted by the complaining party.
53 A defending party is
entitled to know what case it has to an swer, and what violations have
been alleged so that it can begin preparing its defence. 54 Likewise,
those Members of the WTO who intend to participate as third parties
in panel proceedings must be informed of the legal basis of the
complaint. This requirement of due process is fundamental to
ensuring a fair and orderly conduct of dispute settlement proceedings.
58. In Korea – Definitive Safeguard Measure on Imports of Certain Dairy
Products, the Appellate Body stated that:
55
Identification of the treaty provisions claimed to have been violated
by the respondent is always necessary both for purposes of defining
the terms of reference of a pane l and for informing the respondent
and the third parties of the claims made by the complainant; such
identification is a minimum prerequisite if the legal basis of the
complaint is to be presented at all.
56 But it may not always be
enough. There may be situations where the simple listing of the
articles of the agreement or agreemen ts involved may, in the light of
attendant circumstances, suffice to meet the standard of clarity in the
statement of the legal basis of th e complaint. However, there may
also be situations in which the ci rcumstances are such that the mere
listing of treaty articles would not satisfy the standard of Article 6.2.
This may be the case, for instance, where the articles listed establish
not one single, distinct obligation, but rather multiple obligations. In
such a situation, the listing of artic les of an agreement, in and of
itself, may fall short of the standard of Article 6.2.
59. Finally, in US – Carbon Steel, the Appellate Body clarified that:
57
[… ] whether [… ] a listing [of the treaty provisions allegedly
violated] is sufficient to constitute a "brief summary of the legal
basis of the complaint sufficient to present the problem clearly"
within the meaning of Article 6.2 will depend on the circumstances
of each case, and in particular on the extent to which mere reference
to a treaty provision sheds light on the nature of the obligation at
issue.
58
(i) Listing of provisions
60. The European Communities asserts that the mere listing of treaty provisions
is not sufficient in this case. The Europ ean Communities notes in this regard that
several of the treaty provisions identifie d in the panel requests contain multiple
obligations. Specifically, the European Comm unities refers to Articles 2.2, 2.3, 5.5,
7, 8, Annex B(5) and Annex C(1)(b) of the SPS Agreement as well as Articles 2.9,
5.2.2, 5.6 and 12 of the TBT Agreement. The European Communities submits that the
mere listing of the aforementioned provisions makes it impossible to know the
obligations that are alleged to have been violated.

61. The European Communities further notes that several of the provisions listed
are either mutually exclusive (such as those contained in the SPS Agreement and in
the TBT Agreement) or subordinated (such as those of the GATT 1994 in relation to
the ones contained in the other WTO ag reements at issue). The European
Communities notes that the panel requests do not explain how the claims would be
articulated. For instance, they do not explain whether all provisions apply
simultaneously to different aspects of the measures, or whether some are listed only
subsidiarily.
62. The United States notes that it has applied the following method in citing
provisions. Where an article consisted of more than one paragraph, the paragraph has
been identified. Where an article has sub- paragraphs, in most cases, sub-paragraphs
have been identified. The United States notes that there are three exceptions, namely,
Annex B(5) of the SPS Agreement and Articles 2.9 and 5.6 of the TBT Agreement.
According to the United States, these three exceptions contain several sub-paragraphs
establishing related transparency obligati ons. The United States did not identify
specific sub-paragraphs because it consider s that the EC measures at issue are
inconsistent with each of the sub-paragraphs.
63. The United States also notes that it was required to cite provisions of the
SPS Agreement and the TBT Agreement because the Eur opean Communities has
refused to acknowledge that the alleged mo ratorium falls within the scope of the
SPS Agreement. According to the United States, it is difficult to understand,
therefore, how the European Communities could claim any confusion or prejudice
from citing provisions of both agreements.
64. Canada argues that the it has adequately id entified the obligations at issue.
Canada notes that it has applied the followi ng method in citing provisions in its panel
request. Where a provision contains more than one discrete obligation, Canada listed
the specific obligation that it believes has b een violated by referring to the paragraph
or sub-paragraph in the artic le pertaining to the violated obligation. Canada notes
that there are two exceptions to this rule. First, where a provision contains more than
one obligation and Canada considers that th e measures at issue are inconsistent with
all of them, Canada did not specify sub- paragraphs, but cited the provision as a
whole. Second, in the case of Article 5.5 of the SPS Agreement, Canada argues that it
is clear that Canada did not mean to challenge the European Communities with
respect to its obligation to cooperate in th e development of guidelines to further the
implementation of Article 5.5.
65. Canada further notes that neither the DSU nor WTO jurisprudence suggest
that in cases where a large number of provisions are listed more details need to be
provided regarding the obligations at issu e than in cases where few provisions are
listed.
66. Argentina notes that its panel request is much more precise than its
consultation request and argues that the pa nel request sufficiently details, at the
paragraph or sub-paragraph level, the obligations at issu e. Argentina also recalls that
there are panels which have accepted the c itation of general provisions only, without
requiring specifications of paragraphs. Ar gentina further argues that not all of the
provisions referred to by the European Communities set forth different obligations.
According to Argentina, some of these provisions, such as Article 2.2 of the

SPS Agreement, rather set forth different conditions that must be met to fulfil one
obligation.
Listing of provisions containing multiple obligations

67. The Panel notes that with one exception – Article 12 of the TBT Agreement,
which is referred to only by Argentina – the panel requests cite the relevant
provisions not just at the article level, but at the paragraph level. In some cases, the
provisions are cited at the sub-paragr aph level. The European Communities
nevertheless considers that, in some speci fied instances, this falls short of the
requirement in Article 6.2 to provide a brief summary of the legal basis of the
complaint sufficient to present the problem clearly. More specifically, the European
Communities considers that the following re ferences in the Complaining Parties'
panel requests are insufficient:59
• Articles 2.2, 2.3, 5.5, 7, 8, Annex B(5) and Annex C(1)(b) of
the SPS Agreement; and
• Articles 2.9, 5.2.2, 5.6 and 12 of the TBT Agreement.
68. We find it convenient, for analytical purposes, to place the aforementioned
provisions into two categories. The first category encompasses Annex B(5) of the
SPS Agreement and Articles 2.9, 5.6 and 12 of the TBT Agreement. The structure of
these provisions would, in principle, have allowed for a more precise citation than the
Complaining Parties chose to adopt. For instance, Article 2.9 of the TBT Agreement
contains four sub-paragraphs, yet the Comp laining Parties did not specify any of the
sub-paragraphs in their panel requests. The second category encompasses Articles
2.2, 2.3, 5.5, 7, 8 and Annex C(1)(b) of the SPS Agreement and Article 5.2.2 of the
TBT Agreement. These provisions contai n two or more distinct obligations under a
single article, paragraph or sub-paragraph number. But these particular provisions do
not contain any paragraphs (Articles 7 and 8 of the SPS Agreement), sub-paragraphs
(Articles 2.2, 2.3 and 5.5 of the SPS Agreement) or further sub-division
(Annex C(1)(b) of the SPS Agreement and Article 5.2.2 of the TBT Agreement).
69. We will now analyse the two above-mentioned categories separately.
(a) Annex B(5) of the SPS Agreement and Articles 2.9, 5.6 and 12 of the
TBT Agreement
70. In examining the first category of provisions, we note as an initial matter that
we do not understand the Appellate Body report in Korea – Dairy to have established
that the identification of particular paragraph numbers would, ipso facto, be sufficient
to constitute a "brief summary of the legal basis of the complaint sufficient to present
the problem clearly" within the meaning of Article 6.2. In our view, whether
specification of particular paragraph num bers is sufficient, will depend on the
circumstances of each case, and in particul ar on the extent to which specification of
particular paragraph numbers sheds light on the nature of the obligation at issue.
60
71. It is useful to examine Annex B(5) of the SPS Agreement and Articles 2.9 and
5.6 of the TBT Agreement together. They all contai n four sub-paragraphs which
establish separate obligations. The United St ates and Canada have confirmed that in

their respective panel requests they did not identify particular sub-paragraphs because
they consider that the specific measures at is sue are inconsistent with each of the four
sub-paragraphs.
61 The United States and Canada argue that this is consistent with
their overall approach to the listing of provisi ons in their panel requests. Essentially,
the United States and Canada argue that th ey have generally cited provisions as
precisely as their structure allowed, i.e., at the paragraph or sub-paragraph level,
except in cases such as Annex B(5) of the SPS Agreement where they wished to
allege a violation of all sub-paragraphs. A review of the provisions listed in the
United States' and Canada 's panel requests supports this interpretation. 62 W e
therefore accept that, in the specific context of the United States' and Canada's panel
requests, the references to Annex B(5) of the SPS Agreement and Articles 2.9 and 5.6
of the TBT Agreement are sufficient, as such, to give notice to the European
Communities that violations are being alleged of each of the sub-paragraphs of these
provisions. In reaching this conclusion, we also attach importance to two additional
circumstances. Firstly, we note that the provisions in question set forth "notice and
comment" obligations which, by definition, are interrelated. Secondly, we note that
none of the sub-paragraphs of the provisi ons in question appears to be obviously
irrelevant to the complaints at hand.
72. Unlike the United States and Canada, Argentina has not explicitly indicated
whether it considers the specific measures at i ssue to be inconsistent with each of the
four sub-paragraphs of Annex B(5) of the SPS Agreement and Articles 2.9 and 5.6 of
the TBT Agreement. Argentina has merely said that it has identified the relevant
paragraph numbers in its panel request and that there is no requirement to go further
and identify sub-paragr aph numbers as well.
63 As we have noted above, we do not
think that identification of paragraph number s is automatically sufficient to meet the
minimum requirements of Article 6.2. We also note, however, that in Thailand – H-
Beams, the Appellate Body made the following statement:64
With respect to Article 5 [of the Anti-Dumping Agreement ], Poland
stated that "Thai authorities initiated and conducted this investigation
in violation of the procedural ... requirements of Article VI of GATT
1994 and Article 5 ... of the Antidumping Agreement". Article 5 sets
out various but closely related procedural steps that investigating
authorities must comply with in initiating and conducting an anti-
dumping investigation. In view of the interlinked nature of the
obligations in Article 5, we are of the view that, in the facts and
circumstances of this case, Poland's reference to "the procedural ...
requirements" of Article 5 was sufficient to meet the minimum
requirements of Article 6.2 of the DSU.
65
73. In our view, like the procedural obligations in Article 5 of the Anti-Dumping
Agreement, the "notice and comment" obligations contained in Annex B(5) of the
SPS Agreement and Articles 2.9 and 5.6 of the TBT Agreement are "closely related"
and "interlinked". For example, s ub-paragraph (d) of Annex B(5) of SPS Agreement
requires Members to allow a reasonable time for other Members to make comments
in writing on a proposed regulation. If this proposed regulation has not been
published at an early stage, as required in sub-paragraph (a) of Annex B(5) and
brought to the attention of other Member s through the notification required in sub-
paragraph (b) of Annex B(5), and copies provided upon request as established in sub-
paragraph (c) of Annex B(5), it is difficu lt to imagine how an interested Member

would gain sufficient knowledge of the content fo the proposed regulation to be able
to avail itself of the opportunity to subm it comments as foreseen in sub-paragraph (d)
of Annex B(5). Therefore, we consider th at the fact that Argentina's panel request
identifies the relevant article and paragra ph numbers sheds sufficient light on "the
nature of the obligation at issue"
66 to meet the minimum requirements of Article 6.2.
74. We now turn to Article 12 of the TBT Agreement, which is listed only in
Argentina's panel request. Article 12 is entitled "Special and Differential Treatment
of Developing Country Members". It contains ten separate paragraphs. Nevertheless,
in response to a question by the Panel, Argentina asserted that Article 12 does not
contain multiple obligations, but rather a si ngle obligation to provide differential and
more favourable treatment to developi ng country Members "through several
requirements that should be fulfilled" 67. In support of this view, Argentina points to
Article 12.1, which states that "Member s shall provide differential and more
favourable treatment to developing country Members [...] through the following
provisions as well as through the relevant provisions of other Articles of this
Agreement".
75. We do not consider that the text of Article 12.1 supports Argentina's view
that Article 12 contains a single obliga tion as opposed to a number of separate
obligations. For instance, Article 12.3 requires that in preparing and applying
technical regulations, standards and conformity assessment procedures, Members
take account of the special needs of developing country Members. This obligation is
clearly very different from the obligation set forth in Article 12.10, which requires the
Committee on Technical Barriers to Trade to examine periodically the special and
differential treatment granted to deve loping country Members on national and
international levels, for instance.
76. Argentina's panel request refers to Ar ticle 12, but does not specify particular
paragraph numbers. We recall that the Appe llate Body has made it quite clear that it
is important for panel requests to be preci se in identifying the legal basis of the
relevant complaint.
68 We have asked Argentina to indicate why it referred to
Article 12 without specifying any paragraph num bers. Argentina replied that this is
because during the consultations the European Communities failed to answer a
question by Argentina "related to the gene ral obligation embodied in Article 12 [...]
regarding the behaviour due by the EC to Argentina in the treatment and approval of
agricultural biotech products" 69. We acknowledge that failure by a responding party
to co-operate promptly may affect the clarity with which a complaining party can set
out its claims in a panel request. 70 However, Argentina has adduced no evidence
which would enable us to determine wh ether the European Communities failed to
answer Argentina's question. Nor is it clear to us from Argentina's reply precisely
how the alleged lack of co-operation by the European Comm unities affected the
precision with which Argentina identified the obligations at issue.
77. We note that the European Comm unities recognizes that of the various
obligations set out in Article 12, four are potentially relevant to Argentina's
complaint.71 In our view, the potentially releva nt obligations are those contained in
Articles 12.1, 12.2, 12.3 and 12.7. 72 Article 12.1 is relevant whenever there is a
violation of one of the other provisions of Article 12, such as Articles 12.2, 12.3 or
12.7. Article 12.3 is a specific applicati on of the obligation in Article 12.2 to take
account of developing country needs in the implementation of the TBT Agreement at

the national level. As regards Article 12.7, however, it becomes clear, upon closer
inspection, that that provision cannot reasonably be considered to be applicable in this
dispute. Article 12.7 requires the Eur opean Communities to provide technical
assistance to developing country Members. But Argentina's panel request does not
challenge the European Communities with r espect to a failure to provide technical
assistance. The request only refers to an alleged failure by the European
Communities to consider applications for a pproval of biotech products. In the light
of the above elements, and in particular the fact that Articles 12.4 to 12.10 are not
applicable in this dispute, the above-noted substantive similarity between Articles
12.2 and 12.3 and the fact that Article 12.1 incorporates the obligations set out in
Articles 12.2 and 12.3 by reference, we consider that Argentina's reference to
Article 12 sheds sufficient light on "the nature of the obligation at issue"
73 to allow
the European Communities to begin preparing its defence. We, therefore, find that, in
the specific circumstances of this case, the reference to Article 12 is sufficient to meet
the minimum requirements of Article 6.2.
(b) Articles 2.2, 2.3, 5.5, 7, 8 and Annex C(1)(b) of the SPS Agreement and
Article 5.2.2 of the TBT Agreement
78. We now address the second category of provisions. It will be recalled that
this category consists of provisions which contain two or more distinct obligations
under a single article, paragraph or sub-pa ragraph number, but which do not contain
any paragraphs, sub-paragraphs or further sub-division. Argentina argues, without
much elaboration, that, in such cases, th ere is no requirement to identify specific
clauses or sub-clauses within an article, paragraph or sub-paragraph. The United
States notes in this regard that it is unawa re of any panel or Appellate Body report
faulting a panel request for not citing to specific clauses or sub-clauses within an
article, paragraph or sub-paragraph.
79. We do not consider that, for the purposes of an Article 6.2 inquiry, the
structure of the provisions contained in the WTO agreements constitutes some kind of
"safe haven", such that it would always be sufficient to specify sub-paragraph
numbers in cases where a provision has several sub-paragraphs, etc. In our view,
whether a particular manner of citing provi sions is sufficient will depend on the
circumstances of each case, and in particular on the extent to which the particular
citation sheds light on the nature of the obligation at issue. Having said this, we think
that the fact that two or more distinct obligations are set out, e.g., in one and the same
sub-paragraph may provide a strong indication that those obligations are very similar
in nature. In such cases, specification of the relevant sub-paragraph number may
shed sufficient light on the nature of the obligation at issue to meet the minimum
standard of precision required under Article 6.2.
80. In the present case, the European Co mmunities has identified a number of
provisions where it considers that citation in keeping with the maximum level of
precision envisaged in the structure of the re levant agreement is not sufficient. In
view of this assertion, we find it appropriate to do a provision-by-provision analysis.
81. We begin our analysis with Annex C(1)(b) of the SPS Agreement
 and
Article 5.2.2 of the TBT Agreement. We analyse these provisions together, since they
have almost identical wording. Both provisions contain a number of sub-clauses
which set out certain procedural obligations that Members must observe in the

operation of approval or conformity assessment procedures. The United States and
Canada argue that in their respective pane l requests they did not identify particular
sub-clauses because they consider that the specific measures at issue are inconsistent
with each of the sub-clauses of the provisions in question.
74 Argentina has not
explicitly indicated whether it considers the specific measures at issue to be
inconsistent with each of the sub-clauses of Annex C(1)(b) and Article 5.2.2.
Argentina has merely said that it has identif ied the relevant paragraph numbers in its
panel request and that there is no requireme nt to go further and identify particular
sub-clauses as well.
75 In our view, in much the same way as the "notice and
comment" obligations contained in Annex B(5) of the SPS Agreement and
Articles 2.9 and 5.6 of the TBT Agreement, the various procedural obligations set out
in Annex C(1)(b) and Article 5.2.2 are closel y related and interlinked. Therefore, we
consider that the fact that the Complaining Parties' panel requests identify the relevant
article and paragraph numbers sheds sufficient light on "the nature of the obligation at
issue"76 to meet the minimum requirements of Article 6.2.
82. Article 2.2 of the SPS Agreement appears to set out three different "basic"
obligations: (1) that SPS measures must be applied only "to the extent necessary" to
protect life or health, (2) that they must be "based on scientific principles" and (3) that
they must not be "maintained without su fficient scientific evidence". The three
obligations contained in Article 2.2 are fu rther spelt out and applied in different
provisions of the SPS Agreement, namely, Articles 5.1, 5.2 and 5.6.77 We note that all
Complaining Parties have listed Articles 5.1, 5.2 and 5.6 in their panel requests as
separate legal bases. In the light of this, we consider that it is sufficiently clear from
the Complaining Parties' panel requests th at each of the obligations contained in
Article 2.2 is at issue in the three compla ints. Accordingly, we find that, in the
circumstances of this case, referring to Artic le 2.2 is sufficient to meet the minimum
requirements of Article 6.2.
83. Article 2.3 of the SPS Agreement stipulates that SPS measures must not
arbitrarily or unjustifiably discriminate between Members and that they must not be
used in a manner which would constitute a disguised restriction on trade. In
addressing the sufficiency of a listing of Article 2.3, we find relevant the fact that all
Complaining Parties have also listed Articles I:1, III:4 and XI:1 of the GATT 1994 as
legal bases of their complaints. Articles I:1 and III:4 of the GATT 1994 prohibit
certain forms of discrimination against foreign products, whereas Article XI:1 of the
GATT 1994 prohibits quantitative import restrictions. We think it can be inferred
from the references to these GATT 1994 provisions that both obligations set out in
Article 2.3 – i.e., the obligation to avoid arbitrary or unjustifiable discrimination and
the obligation not to apply SPS measures in a manner which would constitute a
disguised restriction on trade – are at issue in the three complaints. We therefore find
that, in the circumstances of this case, referri ng to Article 2.3 is sufficient to meet the
minimum requirements of Article 6.2.
84. Article 5.5 of the SPS Agreement
 obligates Members (1) to avoid arbitrary or
unjustifiable distinctions in the levels of sanitary or phytosanitary protection which
they consider to be appropriate in differen t situations and (2) to co-operate in the
Committee on Sanitary and Phytosanitary M easures to develop guidelines to further
the practical implementation of that article. None of the three panel requests suggests
that the European Communities is being ch allenged in respect of a failure to co-
operate with a view to developing certain guidelines. Indeed, as noted by Canada,

Members have already discharged their coll ective obligation to develop appropriate
guidelines.
78 Thus, it is clear that the obligation at issue in the three panel requests is
the obligation to avoid arbitrary or unjustifiabl e distinctions in the levels of sanitary
or phytosanitary protection. Therefore, we consider that the reference in the
Complaining Parties' panel requests to Article 5.5 is sufficient to meet the minimum
requirements of Article 6.2.
85. Article 7 of the SPS Agreement
 imposes an obligation on Members to notify
changes in SPS measures and to provide information on SPS measures in accordance
with the provisions of Annex B of the SPS Agreement. Regarding the obligation to
"provide information" on SPS measures, we note that the Complaining Parties have
specified in their panel requests which particular provisions of Annex B they consider
to have been violated. We therefore think it is clear that the reference to Article 7
cannot be taken as an indication that the Co mplaining Parties are alleging violations
of all provisions of Annex B. Regarding the obligation to "notify changes" in SPS
measures, we note that it is not necessary, for the purposes of our preliminary ruling,
to determine whether that obligation is, or is not, further elaborated in Annex B. We
consider that that obligation is very similar in nature to the other obligation set out in
Article 7, that is to say, the obligation to "provide information" on SPS measures in
accordance with Annex B. As a result, it is our view that the reference in the
Complaining Parties' panel requests to Article 7 sheds sufficient light on "the nature
of the obligation at issue"
79 to meet the minimum requirements of Article 6.2.
86. Article 8 of the SPS Agreement requires Members to observe the provisions
of Annex C in the operation of control, inspection and approval procedures and to
otherwise ensure that their procedures are not inconsistent with the SPS Agreement.
Here, too, it seems clear that the Complaining Parties cannot be understood to allege
violations of all provisions of Annex C, given that they have specified particular
provisions of Annex C which they consider to have been violated. Regarding the
obligation to "otherwise ensure" compliance with the SPS Agreement, we consider
that in view of the very similar nature of this obligation and the obligation to observe
the provisions of Annex C, the reference in the Complaining Parties' panel requests to
Article 7 is sufficient to meet the minimum requirements of Article 6.2.
Listing of provisions which are mutually exclusive or subject to other provisions
87. We note that another concern e xpressed by the European Communities
relates to the fact that the Complaining Pa rties' panel requests list certain provisions
which are mutually exclusive (such as those contained in the SPS Agreement and in
the TBT Agreement) or otherwise in a clearly define d relationship with one another
(such as the provisions of the GATT 1994 in relation to the provisions contained in
the other WTO agreements at issue). Acco rding to the European Communities, it is
unclear, due to the mere listing of these provisions, whether these provisions are
alleged to apply to different aspects of the same measure, or whether some of these
provisions are alleged to apply only if the Panel determines that other listed
provisions are not applicable.
88. We recall that in accordance with Article 6.2 a panel request is to provide a
brief summary of the legal basis of the complaint sufficient to present the problem
clearly. Thus, the requirement is to state cl early what is the alleged legal basis of a
complaint.
80 Neither the text of Article 6.2 nor relevant jurisprudence suggests that a

complaining party needs to explain, in the panel request, the reasons for identifying
particular treaty provisions. Such explana tion is to be provided through arguments to
be developed in the complaining party's written submissions and oral statements.
81
Accordingly, we do not consider that th e Complaining Parties' panel requests are
defective because they do not explain why certain provisions are listed even though
they may be mutually exclusive or may appl y subject to other provisions. Nor do we
consider that the panel requests are def ective because they do not make it clear
whether all of the provisions listed are a lleged to apply to the same aspect of a
particular measure, or whether some provi sions are alleged to apply to different
aspects of the same measure. It is suffici ent to recall in this regard that a panel
request need not set out arguments "as to which specific aspects of the measures at
issue relate to which specific provisions of [the] agreements [alleged to have been
violated]"
82.
(ii) Indication of which measures violate which provisions
89. The European Communities argues that where a panel request covers
several measures, it should indicate which provisions may be relevant for the
examination of each measure, possibly d escribing the substantive aspects or the
effects of the measures which are allegedly in breach of those provisions. The
European Communities argues that the pane l requests do not provide the slightest
explanation in this regard. According to the European Communities, it is completely
in the dark about which provisions are al leged to have been violated by which
measures.
90. The European Communities further asser ts that the fact that over sixty
obligations have been listed means that, in total, there could be more than three
thousand possible claims in respect of which the European Communities might have
to prepare a defence. The European Co mmunities considers that it has a right to
know what case it will have to defend. In the European Communities' view, the panel
request must contain the necessary information.
91. The United States argues that its panel request clearly alleges that each of
the listed EC measures violates each of the provisions cited in the panel request.
According to the United States, the language used – "These measures appear to be
inconsistent with the following provisions [… ]" – is clear in tying the covered
measures to the claimed violations.
92. The United States further argues that the European Communities overstates
the number of obligations covered in the United States' panel request. The United
States also contends that Article 6.2 does not impose an entirely different standard on
a panel request on the basis that the responding party has engaged in violations of
numerous WTO provisions. Finally, the United States expects that during the course
of the panel proceeding, not all violations of the provisions in its panel request will
receive the same level of attention.
93. Canada recalls that its panel request indicates that " [t]hese measures are
inconsistent with the obligations of th e EC" and then goes on to specify which
provisions are being violated. Canada also notes that the listing of the specific
provisions alleged to be violated must be read in the overall context of the panel
request. According to Canada, some pr ovisions are obviously relevant to some

claims, and just as obviously irrelevant to other claims. Specifically, Canada argues
that those provisions establishing procedural obligations for the approval procedures
and conformity assessment procedures (Article 8 and Annex C(1)(a), C(1)(b),
C(1)(c), and C(1)(e) of the SPS Agreement and Articles 5.1, 5.2.1, 5.2.2, 5.2.3, 5.6
and 5.8 of the TBT Agreement) are not relevant to the national measures by EC
member States which ban products that have already been approved by the European
Communities. Canada submits that they ar e relevant only to those measures which
concern the functioning of the Europ ean Communities' pre-marketing approval
processes.
94. Canada further argues that the Eu ropean Communities is incorrect in
suggesting that Canada's panel request "should indicate which provisions may be
relevant for the examination of each meas ure, possibly describing the substantive
aspects or the effects of the measures which are allegedly in breach of those
provisions". Canada submits that what the European Communities is complaining
about here is that Canada has not provided an indication as to the legal arguments it
intends to pursue, which, according to the ju risprudence, Canada is not required to do
in its panel request.
95. Argentina maintains that its panel request is clear in relation to the link
between the provisions alleged to be violated and the measures at issue. Argentina
also maintains that the way in which the lis ted provisions are violated is a matter to
be developed in Argentina's first written submission and subsequent statements.
96. The Panel notes that the panel in Canada – Wheat Exports and Grain
Imports also confronted the issue whether a particular panel request made it clear
which measures were alleged to violate wh ich provisions. The panel in that case
reached the following conclusion:
We do not agree with Canada's ass ertion that the panel request does
not make it clear which laws, regula tions or actions are inconsistent
with which obligation. The panel request states that "the laws,
regulations and actions of the Government of Canada and the CWB
related to exports of wheat appear to be [… ] inconsistent with
paragraph 1(b) of Artic le XVII of the GATT 1994 [… ]" (emphasis
added). This wording suggests to us – and we consider that it should
suggest to Canada and the third parties as well – that the United
States may have wished to claim be fore us that each of the three
categories of measures identified – la ws, regulations and actions – is
inconsistent with both obligations of Article XVII:1(b). This way of
presenting the Article XVII claim does not, in our view, have as a
consequence that Canada does not know what case it has to answer
and so cannot begin to prepare its defence, or that the third parties are
uninformed as to the legal basis of the complaint and thus lack an
opportunity effectively to respond to the United States' complaint.
83
97. In the present case, the three panel requests each set out the three different
EC measures at issue84 and then go on to state:
(a) "These measures appear to be inconsistent with the following
provisions [...]" (United States' panel request)85;

(b) "The measures violate the following provisions [...]"
(Canada's panel request)
86; and
(c) "The measures in question taken by the European
Communities and several of its member States infringe the
following provisions [...]" (Argentina's panel request)87.
98. Thus, similar to the situation in Canada – Wheat Exports and Grain Imports,
the wording of the panel requests in th e present case suggests that each of the
measures at issue in the three requests is inconsistent with each of the provisions
identified in the three requests.
99. Referring to its own request, Canada points out, however, that the provisions
establishing procedural obligations fo r approval procedures and conformity
assessment procedures are "obviously irreleva nt" to the third EC measure identified
in its panel request, namely, the marketing and import bans allegedly maintained by
certain EC member States, because these member State measures ban biotech product
that have already been approved by the European Communities.88 Neither the United
States nor Argentina have expressed the view that the procedural provisions referred
to by Canada are "obviously irrelevant" to the alleged member State marketing and
import bans which they are also challengi ng in their respective requests. But the
United States has noted that it " currently does not intend to pursue its claims that the
procedures used in the adoption of nationa l marketing and import bans violate the
EC's WTO obligations" (emphasis added).
89 This statement suggests that, originally,
the United States may have wished to pursue such claims. It also suggests that the
irrelevance of the procedural provisions in question to the third EC measure covered
in the three panel requests is perhaps not as obvious as Canada makes it out to be.
100. As noted by us above, the three pane l requests as worded indicate that each of
the measures at issue in these requests is alleged to violate each of the provisions
identified. We consider, therefore, that the claims that may be pursued are
"sufficiently identified in the panel request[s]"
90 and that the European Communities
knows what case it may have to answer and that it can begin to prepare its defence
based on that knowledge. If Canada never in tended to claim that the marketing and
import bans allegedly maintained by certain EC member States violate the provisions
establishing procedural obligations fo r approval procedures and conformity
assessment procedures, its panel request coul d arguably have stated that intention
more clearly. As currently worded, Cana da's panel request leaves little doubt that
Canada may have wished to pursue such a claim.
101. The European Communities has noted th at if the panel requests are read to
mean that each of the measures identified is alleged to violate each of the provisions
listed, the European Communities might have to begin to prepare a defence against a
large number of claims. We agree.
91 However, we do not think that this fact supports
a different reading of the panel requests. Nor do we think that this means that the
legal standard of clarity against which these panel requests must be measured is
higher than it would have been had the panel requests identified fewer claims.
Having said this, we certainly share the Eu ropean Communities' view that where a
panel request sets forth a large number of cl aims it is particularly important that a
complaining party identify the claims it ma y wish to pursue with as much clarity as
possible.

102. The European Communities also suggest s that the panel requests should have
described and explained "the substantive asp ects or the effects of the measures which
are allegedly in breach of those provisions". Here again, we agree that it is desirable
for a complaining party to provide this ty pe of information in its panel request.
However, we recall that the Appellate Body in EC – Bananas III agreed with the
panel in that case that a panel request need not set out arguments "as to which specific
aspects of the measures at issue relate to which specific provisions of those
agreements".
92
(iii) Conclusion
103. In the light of the above considerations 93, the Panel concludes that the
European Communities has failed to establis h that any of the Complaining Parties'
panel requests falls short of the requirement in Article 6.2 that a panel request provide
a brief summary of the legal basis of the complaint sufficient to present the problem
clearly.
5. Overall conclusion
104. In view of our conclusions in Secti ons 4 and 5 above, there is no need to
examine the issue of the prejudice, if any, sustained by the European Communities as
a result of the allegedly defective panel request(s).
105. Overall, we thus conclude that the European Communities has failed to
establish that any of the Complaining Partie s' panel requests, when examined on its
face and in the light of the attendant circumst ances, is inconsistent with Article 6.2 of
the DSU. Accordingly, we decline the Eu ropean Communities' request that we issue
a preliminary ruling to the effect that the Complaining Parties' panel requests do not
meet the requirements of Article 6.2 of the DSU.
ANNEX
Provisions of the SPS And TBT Agreements
referred to by the European Communities
(a) SPS Agreement
(i) Article 2.2
Members shall ensure that any sanita ry or phytosanitary measure is
applied only to the extent necessary to protect human, animal or plant
life or health, is based on scientific principles and is not maintained
without sufficient scientific evid ence, except as provided for in
paragraph 7 of Article 5.
(ii) Article 2.3
Members shall ensure that their san itary and phytosanitary measures
do not arbitrarily or unjustifiably discriminate between Members

where identical or similar conditions prevail, including between their
own territory and that of other Members. Sanitary and phytosanitary
measures shall not be applied in a manner which would constitute a
disguised restriction on international trade.
(iii) Article 5.5
With the objective of achieving consistency in the application of the
concept of appropriate level of sanitary or phytosanitary protection
against risks to human life or health, or to animal and plant life or
health, each Member shall avoid arbitrary or unjustifiable distinctions
in the levels it considers to be appr opriate in different situations, if
such distinctions result in discrimination or a disguised restriction on
international trade. Members sha ll cooperate in the Committee, in
accordance with paragraphs 1, 2 and 3 of Article 12, to develop
guidelines to further the practical implementation of this provision.
In developing the guidelines, the Committee shall take into account
all relevant factors, including the exceptional character of human
health risks to which people voluntarily expose themselves.
(iv) Article 7
Members shall notify changes in their sanitary or phytosanitary
measures and shall provide information on their sanitary or
phytosanitary measures in accordance with the provisions of
Annex B.
(v) Article 8
Members shall observe the provisions of Annex C in the operation of
control, inspection and approval procedures, including national
systems for approving the use of additives or for establishing
tolerances for contaminants in f oods, beverages or feedstuffs, and
otherwise ensure that their procedures are not inconsistent with the
provisions of this Agreement.
(vi) Annex B(5)
Whenever an international sta ndard, guideline or recommendation
does not exist or the content of a proposed sanitary or phytosanitary
regulation is not substantially the same as the content of an
international standard, guideline or recommendation, and if the
regulation may have a significant effect on trade of other Members,
Members shall:
(a) publish a notice at an early stage in such a manner as to
enable interested Members to become acquainted with the
proposal to introduce a particular regulation;
(b) notify other Members, through the Secretariat, of the
products to be covered by the re gulation together with a brief

indication of the objective and rationale of the proposed
regulation. Such notifications shall take place at an early
stage, when amendments can still be introduced and
comments taken into account;
(c) provide upon request to other Members copies of the
proposed regulation and, when ever possible, identify the
parts which in substance deviate from international
standards, guidelines or recommendations;
(d) without discrimination, allow reasonable time for other
Members to make comments in writing, discuss these
comments upon request, and take the comments and the
results of the discussions into account.
(vii) Annex C(1)(b)
Members shall ensure, with respect to any procedure to check and
ensure the fulfilment of sanitary or phytosanitary measures, that: [...]
the standard processing period of each procedure is published or that
the anticipated processing period is communicated to the applicant
upon request; when receiving an application, the competent body
promptly examines the completeness of the documentation and
informs the applicant in a precise and complete manner of all
deficiencies; the competent body transmits as soon as possible the
results of the procedure in a precise and complete manner to the
applicant so that corrective action may be taken if necessary; even
when the application has deficien cies, the competent body proceeds
as far as practicable with the proce dure if the applicant so requests;
and that upon request, the applicant is informed of the stage of the
procedure, with any delay being explained;
(b) TBT Agreement
(i) Article 2.9
Whenever a relevant internationa l standard does not exist or the
technical content of a proposed technical regulation is not in
accordance with the technical content of relevant international
standards, and if the technical regulation may have a significant
effect on trade of other Members, Members shall:
2.9.1 publish a notice in a publication at an early appropriate stage,
in such a manner as to enable interested parties in other
Members to become acquainted with it, that they propose to
introduce a particular technical regulation;
2.9.2 notify other Members through the Secretariat of the products
to be covered by the proposed technical regulation, together
with a brief indication of its objective and rationale. Such
notifications shall take place at an early appropriate stage,

when amendments can still be introduced and comments
taken into account;
2.9.3 upon request, provide to other Members particulars or copies
of the proposed technical regulation and, whenever possible,
identify the parts which in s ubstance deviate from relevant
international standards;
2.9.4 without discrimination, allow reasonable time for other
Members to make comments in writing, discuss these
comments upon request, and take these written comments
and the results of these discussions into account.
(ii) Article 5.2.2
When implementing the provisions of paragraph 1, Members shall
ensure that: [...] the standard processing period of each conformity
assessment procedure is published or that the anticipated processing
period is communicated to the applicant upon request; when
receiving an application, the competent body promptly examines the
completeness of the documentation and informs the applicant in a
precise and complete manner of all deficiencies; the competent body
transmits as soon as possible the results of the assessment in a precise
and complete manner to the applicant so that corrective action may
be taken if necessary; even when the application has deficiencies, the
competent body proceeds as far as pr acticable with the conformity
assessment if the applicant so requ ests; and that, upon request, the
applicant is informed of the stage of the procedure, with any delay
being explained;
(iii) Article 5.6
Whenever a relevant guide or recommendation issued by an
international standardizing body does not exist or the technical
content of a proposed conformity assessment procedure is not in
accordance with relevant guides and recommendations issued by
international standardizing bodies, and if the conformity assessment
procedure may have a significant effect on trade of other Members,
Members shall:
5.6.1 publish a notice in a publication at an early appropriate stage,
in such a manner as to enable interested parties in other
Members to become acquainted with it, that they propose to
introduce a particular conformity assessment procedure;
5.6.2 notify other Members through the Secretariat of the products
to be covered by the proposed conformity assessment
procedure, together with a brief indication of its objective
and rationale. Such notifications shall take place at an early
appropriate stage, when amendments can still be introduced
and comments taken into account;

5.6.3 upon request, provide to other Members particulars or copies
of the proposed procedure and, whenever possible, identify
the parts which in substance deviate from relevant guides or
recommendations issued by international standardizing
bodies;
5.6.4 without discrimination, allow reasonable time for other
Members to make comments in writing, discuss these
comments upon request, and take these written comments
and the results of these discussions into account.
(iv) Article 12
12.1 Members shall provide differential and more favourable
treatment to developing country Members to this Agreement,
through the following provisions as well as through the
relevant provisions of other Articles of this Agreement.
12.2 Members shall give particular attention to the provisions of
this Agreement concerning developing country Members'
rights and obligations and shall take into account the special
development, financial and trade needs of developing
country Members in the implementation of this Agreement,
both nationally and in the ope ration of this Agreement's
institutional arrangements.
12.3 Members shall, in the preparation and application of
technical regulations, standards and conformity assessment
procedures, take account of the special development,
financial and trade needs of developing country Members,
with a view to ensuring that such technical regulations,
standards and conformity assessment procedures do not
create unnecessary obstacles to exports from developing
country Members.
12.4 Members recognize that, although international standards,
guides or recommendations may exist, in their particular
technological and socio-econom ic conditions, developing
country Members adopt certain technical regulations,
standards or conformity assessment procedures aimed at
preserving indigenous technology and production methods
and processes compatible with their development needs.
Members therefore recognize that developing country
Members should not be expected to use international
standards as a basis for their technical regulations or
standards, including test methods, which are not appropriate
to their development, financial and trade needs.
12.5 Members shall take such reasonable measures as may be
available to them to ensure th at international standardizing
bodies and international systems for conformity assessment

are organized and operated in a way which facilitates active
and representative participation of relevant bodies in all
Members, taking into account the special problems of
developing country Members.
12.6 Members shall take such reasonable measures as may be
available to them to ensure th at international standardizing
bodies, upon request of developing country Members,
examine the possibility of, and, if practicable, prepare
international standards con cerning products of special
interest to developing country Members.
12.7 Members shall, in accordance with the provisions of
Article 11, provide technical assistance to developing
country Members to ensure that the preparation and
application of technical regulations, standards and
conformity assessment procedures do not create unnecessary
obstacles to the expansion and diversification of exports from
developing country Members. In determining the terms and
conditions of the technical assist ance, account shall be taken
of the stage of development of the requesting Members and
in particular of the least-developed country Members.
12.8 It is recognized that developing country Members may face
special problems, including institutional and infrastructural
problems, in the field of preparation and application of
technical regulations, standards and conformity assessment
procedures. It is further recognized that the special
development and trade need s of developing country
Members, as well as their stage of technological
development, may hinder their ability to discharge fully their
obligations under this Agreement. Members, therefore, shall
take this fact fully into account. Accordingly, with a view to
ensuring that developing country Members are able to
comply with this Agreement, the Committee on Technical
Barriers to Trade provided for in Article 13 (referred to in
this Agreement as the "Committee") is enabled to grant, upon
request, specified, time-limited exceptions in whole or in part
from obligations under this Agreement. When considering
such requests the Committee sh all take into account the
special problems, in the field of preparation and application
of technical regulations, standards and conformity
assessment procedures, and the special development and
trade needs of the developing country Member, as well as its
stage of technological development, which may hinder its
ability to discharge fully its obligations under this
Agreement. The Committee shall, in particular, take into
account the special problems of the least-developed country
Members.

12.9 During consultations, developed country Members shall bear
in mind the special difficulties experienced by developing
country Members in formulating and implementing standards
and technical regulations and conformity assessment
procedures, and in their desire to assist developing country
Members with their efforts in this direction, developed
country Members shall take account of the special needs of
the former in regard to financing, trade and development.
12.10 The Committee shall examine periodically the special and
differential treatment, as laid down in this Agreement,
granted to developing country Members on national and
international levels."

1 WT/DS291/23.
2 WT/DS292/17.
3 WT/DS293/17.
4 None of the parties requested a preliminary hearing on the issues raised in the European Communities' request
of 8 March 2004.
5 (original footnote) Ibid., para. 143.
6 Appellate Body Report, United States – Countervailing Duties on Certain Corrosion-Resistant Carbon Steel
Flat Products from Germany ("US – Carbon Steel "), WT/DS213/AB/R and Corr.1, adopted 19 December 2002,
para. 127 (footnotes omitted).
7 The United States has further argued that, in addition to being groundless, the European Communities'
objections to the United States' panel request are also untimely and that the Panel should reject the European
Communities' preliminary ruling request also on that basis. See United States' comments on the European
Communities' preliminary ruling request, para. 38. The issue of the timeliness of the European Communities'
objections needs to be addressed only if the Panel concludes that the European Communities has failed to
establish that the United States' panel request does not meet the requirements of Article 6.2 of the DSU.
8 WT/DS291/23, paras. 1-3.
9 (original footnote) Directive 2001/18, O.J. L 106 17.4.2001, p. 1 (and its predecessor, Directive 90/220, O.J. L
117, 8.5.1990, p. 15, as amended by Directive 94/15, O.J. L 103, 22.4.1994, p. 20 and Directive 97/35, O.J. L
169, 27.6.1997, p. 72); and Regulation 258/97, O.J. L 043, 14.2.1997, p. 1.
10 WT/DS292/17, paras. 1, 2 and 5.
11 (original footnote) As set out in EC Directive No. 2001/18 of 12 March 2001 on the deliberate release into the
environment of genetically modified organisms and repealing Council Directive 90/220/EC ([2001] O.J.
L 106/1) (and its predecessor, EEC Directive No. 90/220 of 23 April 1990 on the deliberate release into the
environment of genetically modified organisms ([1990] O.J. L117/15), EC Regulation No. 258/97 of 27 January
1997 concerning novel foods and novel food ingredients ([1997] O.J. L 43/1), and related legislative instruments
specifically referred to in them.
12 WT/DS293/17, paras. 2-5.
13 (original footnote) See Annex I.
14 (original footnote) EC legislation on biotech product approval includes Directive 2001/18/EC of the European
Parliament and of the Council of 12 March 2001, published in Official Journal No. 106 of 17 April 2001,
pages 0001-0039 (and its predecessor Council Directive 90/220/EEC of 23 April 1990, published in Official
Journal No. 117 of 8 May 1990 and amended by Directive 94/15, published in Official Journal No. 103 of
22 April 1994, and by Directive 97/35, published in Official Journal No. 169 of 27 June 1997), and
Regulation (EC) No. 258/1997
 of the European Parliament and of the Council of 27 January 1997, published in
Official Journal No. 043 of 14 February 1997.
15 (original footnote) See Annex II.

16 Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment of Imported Grain ("Canada –
Wheat Exports and Grain Imports"), WT/DS276/R, dated 6 April 2004, not yet adopted, para. 6.10, Article 6.2
ruling para. 14.
17 Ibid, Article 6.2 ruling paras. 17 and 20.
18 Appellate Body Report, Appellate Body Report, European Communities – Customs Classification of Certain
Computer Equipment ("EC – Computer Equipment "), WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R,
19 The Concise Oxford Dictionary, 10th ed., J. Pearsall (ed.) (Clarendon Press, 1999), p. 1443.
20 Ibid.
21 For the text of the introductory paragraph, see, supra, para. 8.
22 United States' comments on the European Communities' preliminary ruling request, para. 4. The United
States' panel request does not explicitly refer to a "de facto" moratorium. However, at the first DSB meeting at
which the United States' panel request was discussed, the United States confirmed the de facto nature of the
moratorium, saying that "[t]he existence of the moratorium [is] indisputable: the EC [has] not considered a
biotech product for approval in nearly five years, and high-level EC officials [have] acknowledged its existence
in public statements". See WT/DSB/M/154, p. 6.
23 Panel Report, Canada – Wheat Exports and Grain Imports, Article 6.2 ruling para. 20.
24 Ibid., Article 6.2 ruling paras. 20 and 27.
25 We note that this distinction has played a role in a number of GATT/WTO dispute settlement proceedings.
See, notably, Panel Report, Japan – Trade in Semi-Conductors ("Japan – Semi-Conductors "), adopted
4 May 1988, BISD 35S/116, paras. 110-117.
26 United States' comments on the European Communities' preliminary ruling request, paras. 4, 5 and 16;
Exhibits US-1 and US-2.
27 European Communities' preliminary ruling request, para. 22.
28 Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-
Alloy Steel and H-Beams from Poland ("Thailand – H-Beams "), WT/DS122/AB/R, adopted 5 April 2001, para.
88.
29 We consider that the United States' panel request also adequately informs the third parties of the specific
measure that is being challenged. We note in this regard that none of the third parties has offered any comments
on the European Communities' objections to the United States' panel request.
30 United States' comments on the European Communities' preliminary ruling request, para. 18.
31 European Communities' preliminary ruling request, para. 25.
32 For the text of the introductory paragraph, see, supra, para. 9.
33 See, supra, para. 20.
34 See, supra, para. 22.
35 Canada's comments on the European Communities' preliminary ruling request, paras. 18-19; Exhibits CDA-4
and CDA-5.
36 See, supra, para. 23.
37 Appellate Body Report, Thailand – H-Beams, para. 88.
38 We consider that Canada's panel request also adequately informs the third parties of the specific measure that
is being challenged. We note in this regard that none of the third parties has offered any comments on the
European Communities' objections to Canada's panel request.
39 European Communities' preliminary ruling request, para. 25.
40 See, supra, para. 20.
41 For the text of the second paragraph, see, supra, para. 10.
42 It appears that Argentina intends to illustrate the "de facto moratorium" by referring to Annex I of its panel
request, which sets out specific biotech products and the status of the corresponding applications for approval.
43 See, supra, para. 22.
44 See, supra, para. 23.
45 Appellate Body Report, Thailand – H-Beams, para. 88.
46 We consider that Argentina's panel request also adequately informs the third parties of the specific measure
that is being challenged. We note in this regard that none of the third parties has offered any comments on the
European Communities' objections to Argentina's panel request.
47 We note that at the first meeting of the DSB at which Argentina's panel request was discussed, Argentina
similarly explained that "[t]he measures at issue include[...], depending on the case, failure to consider or the

suspension of consideration of applications for the endorsement or approval of agricultural biotechnology
products [...]" (emphasis added). See WT/DSB/M/154, p. 7.
48 European Communities' preliminary ruling request, para. 25.
49 WT/DS291/23, para. 4.
50 WT/DS292/17, paras. 6-7.
51 WT/DS293/17, paras. 5-6.
52 Appellate Body Report, Thailand – H-Beams, para. 88.
53 (original footnote) Ibid., para. 123.
54 (original footnote) While arguments will be further clarified in the first written submission, and in subsequent
documents, there is, as we [the Appellate Body] said in European Communities – Bananas, a significant
difference between the claims identified in the request for the establishment of a panel, which establish the panel's
terms of reference under Article 7 of the DSU, and the arguments supporting those claims. See Appellate Body
Report, supra, footnote 30, para. 142.
55 Appellate Body Report, Korea – Definitive Safeguard Measure on Imports of Certain Dairy Products ("Korea
– Dairy "), WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 124.
56 (original footnote) See Appellate Body Report, Brazil – Desiccated Coconut, supra, footnote 21, p. 22;
Appellate Body Report, European Communities – Bananas, supra, footnote 13, paras. 145 and 147; and
Appellate Body Report, India – Patents, supra, footnote 21, paras. 89, 92 and 93.
57 Appellate Body Report, US – Carbon Steel, para. 130.
58 (original footnote) Appellate Body Report, Korea – Dairy, para. 124.
59 We set out the text of these provisions in the Annex to the present preliminary ruling. While the European
Communities appears to suggest that it has identified these particular provisions merely by way of "illustration"
(European Communities' request for a preliminary ruling, para. 38), it is for the European Communities to
indicate precisely how and why the Complaining Parties' panel requests are deficient. The Panel will therefore
limit its analysis to those provisions which have been specified by the European Communities.
60 See Appellate Body Report, US – Carbon Steel, para. 130, quoted, supra, at para. 54.
61 United States' comments on the European Communities' preliminary ruling request, note 15; Canada's reply to
Panel question No. 5.
62 We note that there appears to be one inconsistency in the United States' panel request, in that the United States
did not cite Article 5.1 of the TBT Agreement as a whole, but instead specified both of its two sub-paragraphs.
However, this inconsistency does not detract from our view that, when all of the provisions listed in the United
States' panel request are considered together, the United States' failure to specify sub-paragraph numbers in
referring to Annex B(5) of the SPS Agreement and Articles 2.9 and 5.6 of the TBT Agreement suggests that it
wished to allege violations of each of the sub-paragraphs.
63 Argentina's reply to Panel question No. 9.
64 Appellate Body Report, Thailand – H-Beams, para. 93.
65 (original footnote) See also Appellate Body Report, United States – Import Measures on Certain Products
from the European Communities, WT/DS165/AB/R, adopted 10 January 2001, para. 111.
67 Argentina's reply to Panel question No. 8.
68 Specifically, the Appellate Body noted that "[i]n view of the importance of the request for the establishment
of a panel, we encourage complaining parties to be precise in identifying the legal basis of the complaint".
Appellate Body Report, Thailand – H-Beams, para. 97.
69 Argentina's reply to Panel question No. 8.
70 See Panel Report, Canada – Wheat Exports and Grain Imports, Article 6.2 ruling para. 43.
71 European Communities' preliminary ruling request, para. 38. The European Communities does not indicate
the paragraph numbers which contain these four obligations.
72 Article 12.4 deals with measures taken by developing country Members. Articles 12.5 and 12.6 relate to
Members' obligations in connection with the work of international standardizing bodies. Article 12.8 concerns
the problems faced by developing country Members in discharging their obligations under the TBT Agreement
and the possibility of obtaining time-limited exceptions from obligations under the TBT Agreement.
Article 12.9 relates to "consultations" in a situation where a developing country Member is "formulating and
implementing" standards, technical regulations or conformity assessment procedures. However, Argentina's
panel request nowhere suggests that the European Communities failed to comply with its obligations during

consultations between Argentina and the European Communities. Also, Argentina's complaint plainly is not
about the formulation and implementation of its own standards, technical regulations or conformity assessment
procedures. Article 12.10 sets out a requirement to be satisfied by the Committee on Technical Barriers to
Trade.
74 United States' reply to Panel question No. 3; Canada's reply to Panel question No. 5.
75 Argentina's reply to Panel question No. 9.
77 See Appellate Body Report, Australia – Measures Affecting Importation of Salmon ("Australia – Salmon "),
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327, para. 138; Panel Report, EC Measures
Concerning Meat and Meat Products (Hormones) – Complaint by Canada ("EC – Hormones (Canada)"),
WT/DS48/R/CAN, adopted 13 February 1998, as modified by the Appellate Body Report, WT/DS26/AB/R,
WT/DS48/AB/R, DSR 1998:II, 235, para. 8.99.
78 See G/SPS/15.
80 See, e.g., Appellate Body Report, US – Carbon Steel, para. 172.
81 See Appellate Body Report, European Communities – Regime for the Importation, Sale and Distribution of
Bananas ("EC – Bananas III "), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, para. 141.
82 Ibid.
83 Panel Report, Canada – Wheat Exports and Grain Imports, Article 6.2 ruling para. 29.
84 See, supra, paras. 8, 9 and 10. It is important to note that in listing the three EC measures, all three panel
requests use the separator "and".
85 WT/DS291/23.
86 WT/DS292/17.
87 WT/DS293/17.
88 Canada's comments on the European Communities preliminary ruling request, para. 33; Canada's reply to
Panel question No. 6. For a list of the relevant provisions, see, supra, para. 93.
89 United States' reply to Panel question No. 2, note 1.
90 Appellate Body Report, US – Carbon Steel, para. 173.
91 We are not convinced, however, that the European Communities might potentially have to defend itself
against more than three thousands claims. In particular, we note that the European Communities itself is of the
view that some of the provisions cited in the panel requests are mutually exclusive or subject to other provisions.
European Communities' preliminary ruling request, para. 40.
92 Appellate Body Report, EC – Bananas III, para. 141.
93 We note, in addition, that just like we do not consider that the summaries of the legal basis of the complaints
provided in the Complaining Parties' panel requests result in the European Communities not knowing what case
it has to answer and hence being unable to begin preparing its defence, so also we do not consider that those
summaries result in the third parties being uninformed as to the legal basis of the Complaining Parties'
complaints and thus unable effectively to respond to these complaints. We recall in this regard that none of the
third parties has offered any comments on the European Communities' objections to the Complaining Parties'
panel requests.

7.48 In relation to the above preliminary ruling, we note that in US – Gambling , the Appellate
Body found that "without demonstrating the source of the prohibition, a complaining party may not
challenge a 'total prohibition' as a "measure", per se , in dispute settlement proceedings under the
GATS".235 This statement relates to a measure which was different in nature from the first measure
challenged by the Complaining Parties in this case (t he alleged general EC moratorium). Indeed, in
US – Gambling, the Appellate Body's conclusion was based on the argument that without knowing the
precise source of the "total prohibition", the res ponding party in that case was not in a position to
prepare adequately its defence, particularly b ecause it had been alleged that numerous federal and

235 Appellate Body Report, US – Gambling, para. 126.

state laws underlay the "total prohibition".
236 In the present case, there is no allegation that numerous
EC laws and regulations underlie the first measure challenged by the Complaining Parties. The
Complaining Parties are alleging the very opposite, namely, that there are no formal laws or
regulations underlying the first measur e and that, as a result, no such laws or regulati ons could have
been identified. In the light of this, we see no inconsistency between our a pproach and that of the
Appellate Body in US – Gambling.237 In any event, we have determined above that the description of
the first measure covered in the Complaining Parti es' respective panel requests, when read together
with other information provided in those requests, adequately identifies the specific measure that is
being challenged, and that the European Communities has failed to persuade us that the information
contained in the Complaining Parties' respective de scriptions of the first measure did not allow the
European Communities to prepare adequately its defence.
7. Relevance of other rules of international law to the interpretation of the WTO
agreements at issue in this dispute
7.49 The European Communities argues that in US – Gasoline the Appellate Body stated that
"the General Agreement is not to be read in clin ical isolation from public international law". More
specifically, the European Communities notes that the WTO agreements – including the
SPS Agreement, the TBT Agreement and the GATT 1994 – must be interpreted and applied by
reference to relevant rules of international law arising outside the WTO context, as reflected in
international agreements and declarations. The European Communities notes that notwithstanding the
aforementioned statement by the Appellate Body, th e Complaining Parties in these proceedings treat
the legal issues concerning the authorization and international trade of GMOs as though they are
regulated exclusively by WTO rules, and make no reference whatsoever to the relevant rules of public
international law which have been adopted to re gulate the concerns and requirements which arise
from the particular characteristics of GMOs.
7.50 In view of the European Communities' argument, the Panel now turns to address the issue of
the relevance of other rules of international law to the interpretation of the WTO agreements at issue
in this dispute.
(a) Other applicable rules of international law as an interpretative element to be taken into
account together with the "context" (Article 31(3)(c) of the Vienna Convention on the Law of
Treaties)
7.51 In approaching this issue, we first consider whether there are other applicable rules of
international law which we are required to take in to account in interpreting the WTO agreements at
issue in this dispute.
7.52 The European Communities asserts that the Panel is required to interpret the relevant rules
of WTO law consistently with other rules of in ternational law that may be relevant to these
proceedings. The European Comm unities notes in this regard that the customary rules of
interpretation of public international law are reflected in Articles 31 and 32 of the Vienna Convention
on the Law of Treaties (hereafter "the Vienna Convention") and they include the requirement to take
into account other relevant rules of international law, in addition to the context of the treaty itself.
The European Communities notes in this regard that the Appellate Body has interpreted WTO rules
by reference to treaties which are not binding on all parties to the proceedings. More specifically, the
European Communities refers to treaties invoked by the Appellate Body in the US – Shrimp case – in

236 Ibid., para. 125.
237 For our approach, see Preliminary Ruling, paras. 22-24, 34-35 and 45-46.

support of arguments made by the United States – treaties which that country had not signed or had
signed but not ratified. The European Communiti es asserts that the Panel is bound to follow the
approach set forth in US – Shrimp.
7.53 The European Communities considers that the bi nding international law instruments relevant
to this case are the 1992 Convention on Biological Diversity (hereafter "the Convention on Biological
Diversity") and the 2000 Cartagena Protocol on Biosafety to the Convention on Biological Diversity
(hereafter "the Biosafety Protocol "). According to the European Communities, the Convention on
Biological Diversity is binding on the European Communities, Argentina and Canada and has been
signed by the United States. Regarding the Biosafety Protocol, the European Communities points out
that the Protocol is binding on the European Communities (which has obligations under it vis-à-vis
third parties) and has been signed by Argentin a and Canada. Regarding the United States, the
European Communities indicates that the United States is participating in the Protocol's Clearing-
House Mechanism (under Articles 11 and 20) and must therefore be taken to have no objection to the
approach required by the Protocol. More generally, the European Communities argues that under
Article 18 of the Vienna Convention (which, according to the European Communities, reflects
customary international law) a State which has si gned a treaty is bound to "refrain from acts which
would defeat [its] object and purpose".
7.54 The European Communities argues that the
 Biosafety Protocol is the international agreement
which is most directly relevant to the matters raised by the present proceedings. The relationship
between the Protocol and other international agreements, in cluding trade agreements, is addressed by
the last three recitals of the Preamble. They recall the concept of mutual supportiveness between
trade and environment agreements; they furthermore affirm that the Protocol shall not be interpreted
as implying a change in the rights and obligations of Parties under any other existing international
agreement, but recall that such st atement shall not mean that the Protocol is subordinated to other
international agreements. The European Commun ities submits that the Complaining Parties ignore
the rules of international law reflected in the Biosafety Protocol on the precautionary principle and on
risk assessment.
7.55 The European Communities argues that although the Biosafety Protocol has not been invoked
in previous WTO dispute settlement proceedings, there is ample authority to support the proposition
that the Biosafety Protocol and the SPS Agreement (as well as the TBT Agreement and GATT 1994)
are so closely connected th at they should be interpreted and app lied consistently with each other, to
the extent that is possible (as is the case in this dispute). The European Communities indicates in this
regard that there is no a priori inconsistency between the WTO agreements ( SPS Agreement,
TBT Agreement, GATT 1994) and the Biosafety Protocol ; that the two instruments are
complementary; and that the Protocol's provisions on precaution and risk assessment inform the
meaning and effect of the releva nt provisions of the WTO agreements. Furthermore, the European
Communities submits that the negotiators of the Biosafety Protocol were acutely aware of its
relationship with WTO agreements and cannot have intended that ther e should be an inconsistency of
approach. Reasonable governments have concluded that the authorization of GMOs (including import
requirements) requires a particular approach, and they can hardly have intended that approach to be
inconsistent with WTO rules. The European Commun ities argues, finally, that the application of its
internal measures is fully consistent with the WT O agreements, and that this is confirmed by the
requirements of the Biosafety Protocol.
7.56 The United States argues that there are no binding international law instruments of relevance
to this dispute, other than the WTO Agreement. Furthermore, the United States notes that under the
DSU, the Panel's terms of reference are to examin e the matter at issue "in light of the relevant
provisions [...] in the covered ag reements cited by the parties to the dispute". The matter is not to be

considered in light of the provisions of the Biosafety Protocol, nor of other sources of international
law.
7.57 The United States argues that the only way ot her sources of international law could be
pertinent to this dispute is if, under Article 3.2 of the DSU, those other sources of law would assist the
Panel in "clarifying the existing provisions of th e [covered] agreements in accordance with customary
rules of interpretation of public international law". As pertinent here, customary rules of
interpretation of public international la w are reflected in Article 31 of the Vienna Convention. This
provision states that the terms of a treaty must be interpreted "in accordance with [their] ordinary
meaning [...] in their context and in the light of [the treaty's] object and purpose". The United States
notes that international law other than the WTO Agreement is only pertinent in so far as it would assist
the Panel in interpreting the particular terms of the covered agreements at issue in this dispute.
7.58 The United States disagrees with any notion that the Biosafety Protocol is a rule of
international law for the purposes of interpreting the WTO Agreement in accordance with the
principles in Article 31(3) of the Vienna Convention. Under Article 31(3), the international rule must
be "applicable in the relations between the parti es". The United States notes that in this case, the
Biosafety Protocol is not applicable to relations betw een the United States and the European
Communities, because the United States is not a party to the Biosafety Protocol. The United States
indicates that the European Commun ities' argument to the contrary is entirely without merit. The
European Communities notes that the United States participates in the Biosafety Protocol Clearing-
House Mechanism, and from this the European Communities leaps to the conclusion that the United
States must thus have no objection to the "approach" required by the Biosafety Protocol. The United
States argues that its good-faith effort to share info rmation regarding living m odified organisms that
have completed regulatory review in the Unite d States is in no way an endorsement of the Protocol
itself.
7.59 Moreover, the United States does not agree that the Panel would need to look to the Biosafety
Protocol in interpreting the WTO Agreement even in a dispute between WTO Members that were both
parties to the Biosafety Protocol . The United States submits that the European Communities itself
acknowledges that the Protocol explicitly provides that parties may not disregard their existing
international obligations in their implementation of the Biosafety Protocol. The United States submits
that the Biosafety Protocol has a clear and unequivocal statement that the Protocol does not change
the rights and obligations under any ex isting international agreement. In addition, the United States
notes that in this dispute, the European Communities has not identified how the
Biosafety Protocol or
a "precautionary principle" would be of relevance to interpreting any particular provision of the WTO
Agreement. Moreover, the United States notes that th e European Communities does not argue that
any provision of the Protocol is in any way inconsistent w ith the European Communities' full
compliance with its WTO obligations. According to the United States, the Biosafety Protocol
foresees a functioning regulatory system in each Part y country – a system that works in a predictable
manner to make informed decisions on imports of "living modified organisms" within a specified
timeframe. Nowhere does the Protocol require or even condone the adoption of moratoria on
decision-making, or undue delays in such decision-making.
7.60 Canada argues that with the possible exception of the 1979 International Plant Protection
Convention, there are no binding international law instrument s relevant to this case. In relation to the
Biosafety Protocol, Canada notes that the only possible relevance of the Protocol to this dispute could
be for interpretive purposes. Initially, Canada submitted in this regard that in view of the fact that the
Complaining Parties to this dispute are not parties to the Biosafety Protocol, the Biosafety Protocol is
not a "relevant rule[] of international law app licable in the relations between the parties"
(Article 31(3)(c) of the Vienna Convention ). However, at a later stage Canada argued that the

reference to "parties" in Article 31(3)(c) is a refe rence to the parties to the treaty that is being
interpreted. On that basis, Cana da submitted that in the case of the WTO Agreement , the rules of
international law in question would have to be applicable in the relations among all the WTO
members.
7.61 Canada further argues that, in any event, the Biosafety Protocol should not be taken into
account in the interpretation of the obligations under the WTO Agreement, given that the Protocol's
own terms emphasize that "this Protocol shall not be interpreted as implying a change in the rights
and obligations of a Party under any existing interna tional agreements." Furthermore, Canada notes
that the European Communities has offered no explanation for how the Biosafety Protocol might
assist it. In particular, the Biosafety Protocol does not entitle the European Communities to take
measures that disregard the conclusions of its scientif ic risk assessments or suspend the working of its
risk assessment process. According to Canada ther e is no inconsistency betw een the obligations of
the Biosafety Protocol and the WTO obligations relevant to this dispute. The Biosafety Protocol is
premised on transparent, scientifically-sound risk assessment as the basis for decisions regarding the
importation of the products to which it applies. Canada argues that the European Communities'
measures – its moratorium, its product-specific marketing bans and its member State bans – are stark
refutations of this premise. Also, the scope of the Biosafety Protocol is limited to "living modified
organisms" or LMOs. The European Communities repeatedly attempts to equate the term LMOs with
GMOs. As the Biosafety Protocol is concerned with the impact of LMOs on biodiversity, even under
the European Communities' theory, the Protocol is of no relevance to the risk assessment of biotech
products for food use under Regulation 258/97 . Canada submits that, for all these reasons, the
European Communities will find no jus tification for its measures under the WTO Agreement by
appealing to other international agreements.
7.62 Argentina argues that according to Article 3.2 of the DSU, as interpreted by the Appellate
Body, any treaty interpreter must resort to the Vienna Convention in order to interpret the covered
agreements. Argentina indicates that in this case, with respect to the "extra-WTO" rules invoked by
the European Communities, it is necessary to resort to Article 31 of the Vienna Convention.
7.63 Furthermore, Argentina argues that the rules of international law referred to by the European
Communities are clearly not an agreement "relati ng to the treaty which was made between all the
parties in connection with the conclusion of the tr eaty" within the meaning of Article 31(2)(a) of the
Vienna Convention . Nor are they an "instrument which was made by one or more parties in
connection with the conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty" within the meaning of Article 31(2)(b) of the
Vienna Convention. Moreover, Argentina
submits that the rules cited by the European Co mmunities are not a "subsequent agreement between
the parties regarding the interpretation of the treaty or the applications of its provisions" within the
meaning of Article 31.3(a). In a ddition, Argentina asserts that the Biosafety Protocol cannot be
regarded as "any relevant rule of international law applicable in the relations between the parties"
within the meaning of Article 31(3)(c) of the Vienna Convention, since the European Communities is
the only party in this WTO dispute bound by the provisions of the Biosafety Protocol.
7.64 The Panel begins its analysis by offering some ge neral observations befo re considering the
relevance of the rules of international law whic h the European Communities claims should have a
bearing on our interpretation of WTO provisions.

(i) General
7.65 Pursuant to Article 3.2 of the DSU, we are to interpret the WTO agreements "in accordance
with customary rules of interpretation of public international law". These customary rules are
reflected, in part, in Article 31 of the Vienna Convention.
238
7.66 Article 31 provides in relevant part:
Article 31
General rule of interpretation

1. A treaty shall be interpreted in goo d faith in accordance with the ordinary
meaning to be given to the terms of the trea ty in their context and in the light of its
object and purpose.
2. The context for the purpose of the inte rpretation of a treaty shall comprise, in
addition to the text, including its preamble and annexes:
(a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
(b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the treaty.
3. There shall be taken into account, together with the context:
(a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
(b) any subsequent practice in the app lication of the treaty which establishes the
agreement of the parties regarding its interpretation;
(c) any relevant rules of international la w applicable in the relations between the
parties.
7.67 Article 31(3)(c) directly speaks to the issue of the relevance of other rules of international law
to the interpretation of a treaty. In considering th e provisions of Article 31(3)(c), we note, initially,
that it refers to "rules of international law". Te xtually, this reference seems sufficiently broad to
encompass all generally accepted sources of public intern ational law, that is to say, (i) international
conventions (treaties), (ii) international custom (c ustomary international law), and (iii) the recognized
general principles of law. In our view, there can be no doubt that treaties and customary rules of
international law are "rules of international law" within the meaning of Article 31(3)(c). We therefore
agree with the European Comm unities that a treaty like the Biosafety Protocol would qualify as a
"rule of international law". Regarding the recognized general principles of law which are applicable
in international law, it may not appear self- evident that they can be considered as " rules of
international law" within the meaning of Artic le 31(3)(c). However, the Appellate Body in US –
Shrimp made it clear that pursuant to Article 31(3)(c) ge neral principles of international law are to be

238 Appellate Body Report, US – Carbon Steel, paras. 61-62.

taken into account in the interpretation of WTO provisions.
239 As we mention further below, the
European Communities considers that the princi ple of precaution is a "general principle of
international law". Based on the Appellate Body report on US – Shrimp , we would agree that if the
precautionary principle is a general principle of inte rnational law, it could be considered a "rule of
international law" within the meaning of Article 31(3)(c).
7.68 Furthermore, and importantly, Article 31(3)(c ) indicates that it is only those rules of
international law which are "applicable in the relations between the parties" that are to be taken into
account in interpreting a treaty. This limitation gives rise to the question of what is meant by the term
"the parties". In considering this issue, we note that Article 31(3)(c) does not refer to "one or more
parties".240 Nor does it refer to "the parties to a dispute". 241 We further note that Article 2.1(g) of the
Vienna Convention defines the meaning of the term "party" for the purposes of the Vienna
Convention. Thus, "party" means "a State which has consented to be bound by the treaty and for
which the treaty is in force". It may be inferred fro m these elements that the rules of international law
applicable in the relations between "the parties" ar e the rules of international law applicable in the
relations between the States which have consen ted to be bound by the treaty which is being
interpreted, and for which that treaty is in force. 242 This understanding of the term "the parties" leads
logically to the view that the ru les of international law to be ta ken into account in interpreting the
WTO agreements at issue in this dispute are those which are applicable in the relations between the
WTO Members.243

239 Appellate Body Report, US – Shrimp , para. 158 and footnote 157. The Appellate Body found in
that case that the principl e of good faith was at once a general principle of law and a general principle of
international law.
240 We note that, by contrast, Article 31(2)(b) of the Vienna Convention refers to "one or more parties".
241 By contrast, Article 66 of the Vienna Convention , which deals with procedures for judicial
settlement, arbitration and conciliation, refers to "the pa rties to a dispute". We note that the absence of a
reference to "the parties to a dispute" in Article 31 is not surprising given that Article 31 does not purport to lay
down rules of interpretation which are applicable sole ly in the context of international (quasi-)judicial
proceedings.
242 We are aware that Ar ticle 31(2)(a) of the Vienna Convention refers to "all the parties". However,
we do not consider that Article 31(2)(a) rules out our inte rpretation of the term "the parties" in Article 31(3)(c).
In our view, the reference to "all the parties" is used in Article 31(2)(a) to make clear the difference between the
class of documents at issue in that provision (namely, agreements relating to a treaty which were made between
"all the parties") and the class of documents at issue in Article 31(2)(b) (namely, instruments made by "one or
more parties" and accepted by "the other parties" as related to a treaty). In other words, we think that the use of
the term "all the parties" in Article 31(2)(a) is explained, and necessitated, by the exis tence of Article 31(2)(b).
Consistent with this view, we think that the absence of a reference to "all the partie s" in Article 31(3)(c) is
explained by the fact that Article 31(3) contains no provision like Article 31(2)(b), i.e., that Article 31(3)
contains no provision which refers to "one or more parties" and hence could render unclear or ambiguous the
reference to "the parties" in Article 31(3)(c).
It is useful to note, in addition, that the view that the term "the parties" in Article 31(3)(c) should be
understood as referring to all the parties to a tr eaty has also been expressed by Mustafa Yasseen,
l'Académie de Droit International (1976), Vol. III, p. 63, para. 7.
243 We find further support for this view in the provi sions of Article 31(3)(b). Article 31(3)(b), which
is part of the immediate context of Article 31(3)(c), provides that a treaty interpreter must take into account "any
subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its
interpretation". Like Article 31(3)(c), this provision makes reference to "the parties". In EC – Chicken Cuts, the
Appellate Body appeared to agree with the panel in that case that the term "the parties" in Article 31(3)(b)
means the parties to a treaty and in the WTO context must be understo od as meaning the WTO Members.
Appellate Body Report, EC – Chicken Cuts , paras. 272 (referring to "a tr eaty party" and agreement with a
practice by "other WTO Members") and 273 (referring to the "issue of how to establish the agreement by

7.69 It is important to note that Article 31(3)(c) ma ndates a treaty interpreter to take into account
other rules of international law (" [t]here shall be taken into account"); it does not merely give a treaty
interpreter the option of doing so.
244 It is true that the obligation is to "take account" of such rules,
and thus no particular outcome is prescribed. However, Article 31(1) makes clear that a treaty is to be
interpreted "in good faith". Thus, where considerati on of all other interpretative elements set out in
Article 31 results in more than one permissible interpretation, a treaty interpreter following the
instructions of Article 31(3)(c) in good faith would in our view need to settle for that interpretation
which is more in accord with other applicable rules of international law.245
7.70 Taking account of the fact that Article 31(3)(c) mandates consideration of other applicable
rules of international law, and that such consider ation may prompt a treaty interpreter to adopt one
interpretation rather than another, we think it makes sense to interpret Article 31(3)(c) as requiring
consideration of those rules of international law which are applicable in the relations between all
parties to the treaty which is being interpreted. Re quiring that a treaty be interpreted in the light of
other rules of international law which bind the St ates parties to the treaty ensures or enhances the
consistency of the rules of international law applicable to these States and thus contributes to avoiding
conflicts between the relevant rules.
7.71 The European Communities appears to suggest that we must interpret the WTO agreements at
issue in this dispute in the light of other rules of international law even if these rules are not binding
on all Parties to this dispute. 246 In addressing this argument, we first recall our view that
Article 31(3)(c) should be interpreted to mandate consideration of rules of international law which are
applicable in the relations between all parties to the treaty which is being interpreted.247 The parties to
a dispute over compliance with a particular treaty are, of course, parties to that treaty. In relation to
the present dispute it can thus be said that if a rule of international law is not applicable to one of the
four WTO Members which are parties to the present dis pute, the rule is not applicable in the relations

Members that have not engaged in a practice"). See also Appellate Body Report, Japan – Alcoholic Beverages
II, p. 13 (referring to "the agreement of the parties [to a treaty] regarding its interpretation"). It is true that the
Appellate Body found that "the interpretation of a treaty provision on the basis of subsequent practice is binding
on all parties, including those that have not actually engaged in such practice". Appellate Body Report, EC –
Chicken Cuts, para. 273. But it also found that it is necessary "to establish agreement of those that have not
engaged in a practice". Appellate Body Report, EC – Chicken Cuts , para. 271. Thus, our interpretation of the
term "the parties" in Article 31(3 )(c) is consistent with, and indeed supported by, the Appellate Body's
interpretation of the same term in Article 31(3)(b). In our view, it would be incongruous to allow the
interpretation of a treaty to be affected by rules of in ternational law which are not applicable in the relations
between all parties to the treaty, but not by a subseque nt practice which does not esta blish the agreement of all
parties to the treaty regarding the meaning of that treaty.
244 This view is confirmed by the negotiating hist ory of Article 31(3). The International Law
Commission, in its commentary to Article 27 of the draft Vienna Convention, which contained language
identical to the current Article 31 of the Vienna Convention, stated that "the three elements [the three sub-
paragraphs of what is now Article 31(3)] are all of an obligatory character and by their very nature could not be
considered to be norms of interpretation in any way inferior to those which precede them". Yearbook of the
International Law Commission (1966), Vol. II, p. 220, para. 9.
245 We are not suggesting that other applicable rules of international law invariably or exclusively serve
as a kind of "tie-breaker" in the interpretative process.
246 The European Communities considers that the Appellate Body report on US – Shrimp supports its
view. We do not agree. In our view, that report does not stand for the proposition that panels are required to
interpret WTO agreements in the light of other rules of international law even if they are not applicable to all
parties to a dispute. We further address the Appellate Body report on US – Shrimp , and in particular how we
understand it, in the next sub-section.
247 We recall that we have reached this view af ter determining that the text and context of
Article 31(3)(c) do not support interpreting the term "the parties" as meaning "the parties to a dispute".

between all WTO Members. Accordingly, based on our interpretation of Artic le 31(3)(c), we do not
consider that in interpreting the relevant WTO agreements we are re quired to take into account other
rules of international law which are not applicable to one of the Parties to this dispute. But even
independently of our own interpretation, we think Article 31(3)(c) cannot reasonably be interpreted as
the European Communities suggests. Indeed, it is not apparent why a sovereign State would agree to
a mandatory rule of treaty interpretation which could have as a consequence th at the interpretation of
a treaty to which that State is a party is affected by other rules of international law which that State
has decided not to accept.
248
7.72 Before applying our interpretati on of Article 31(3)(c) to the present case, it is important to
note that the present case is not one in which relevant rules of international law are applicable in the
relations between all parties to the dispute, bu t not between all WTO Members, and in which all
parties to the dispute argue that a multilateral WT O agreement should be interpreted in the light of
these other rules of international law. Therefore, we need not, and do not, take a position on whether
in such a situation we would be entitled to take the relevant other rules of international law into
account.
(ii) Convention on Biological Diversity and Biosafety Protocol
7.73 With the foregoing observations in mind, we now consider whether the multilateral treaties
identified by the European Communities are "relevan t rules of international law applicable in the
relations between the parties". The European Communities has identified two multilateral treaties, the
Convention on Biological Diversity and the Biosafety Protocol. We first address the Convention on
Biological Diversity.
7.74 We note that like most other WTO Members, Argentina, Canada and the European
Communities have ratified the Convention on Biological Diversity and are thus parties to it. 249 The
United States has signed it in 1993, but has not ratified it since. 250 Thus, the United States is not a
party to the Convention on Biological Diversity , and so for the United States the Convention is not in
force. In other words, the Convention on Biological Diversity is not "applicable" in the relations
between the United States and all other WTO Members. The mere fact that the United States has
signed the Convention on Biological Diversity does not mean that the Convention is applicable to it.
251
Nor does it mean that the United States will ratify it, or that it is under an obligation to do so. We

248 It is useful to recall that there are several ways in which a sovereign State can decide not to accept
other rules of international law. Thus, in the case of other rules of international law embodied in a treaty, a State
may have decided not to participate in the negotiation of the treaty; it may have decided not to sign the final text
of the treaty in question; or the legi slature of a State may have decided not to ratify the treaty after it had been
signed by its executive branch. There are also cases of ratifications with objections/exceptions. In the case of
customary rules of international law, a State may have persistently objected to such a rule during its formation.
249 The Convention on Biological Diversity entered into force on 29 December 1993.
250 We have no information on whether the United States has ever made its intentions clear after 1993
as to whether it still wished to become a party to the 1992 Convention.
251 We note that pursuant to Article 18 of the Vienna Convention a State which has signed a treaty must
refrain from acts which would defeat the object and purpos e of that treaty, at least until it has made its intention
clear not to become a party. Initially, we note that there is an issue whether the provisions of Article 18 reflect
customary international law. Even disr egarding this issue, we note that Article 18 refers to "acts" which rise to
the level of "defeat [ing] the object and purpose" of a treaty, not to acts which are inconsistent with specific
terms of that treaty. It does not follow from Article 18 that a State which has signed a treaty has obligations
pursuant to the specific terms of that treaty and that the treaty is applicable to it as such. In any event,
Article 31(3)(c) refers to applicable "rules" of internatio nal law. We think the "object and purpose" of a treaty
cannot be reasonably considered to constitute a "rule" of international law.

have said that if a rule of international law is not a pplicable to one of the Parties to this dispute, it is
not applicable in the relations between all WTO Memb ers. Therefore, in view of the fact that the
United States is not a party to the Convention on Biological Diversity , we do not agree with the
European Communities that we are required to take into account the Convention on Biological
Diversity in interpreting the multilateral WTO agreements at issue in this dispute.
7.75 Turning to the Biosafety Protocol , we note that it entered into force only on 11 September
2003, i.e., after this Panel was established by the DSB. Among the WTO Members parties to the
Biosafety Protocol is the European Communities. Ar gentina and Canada have signed the Biosafety
Protocol, but have not ratified it since.
252 Hence, they are not parties to it. The United States has not
signed the Biosafety Protocol . While this does not preclude the United States from ratifying the
Protocol, the United States has so far not done so. 253 Accordingly, it, too, is not a party to the
Biosafety Protocol. We do not consider that the rules of the Biosafety Protocol can be deemed to be
applicable to the United States merely because th e United States participates in the Protocol's
Clearing-House Mechanism. It follows that the Biosafety Protocol is not in force for Argentina,
Canada or the United States.254 We deduce from this that the Biosafety Protocol is not "applicable" in
the relations between these WTO Members and all ot her WTO Members. As we have said above, in
our view, the mere fact that WTO Members like Argentina and Canada have signed the Biosafety
Protocol does not mean that the Protocol is applicable to them. In view of the fact that several WTO
Members, including the Complaining Parties to this dispute, are not parties to the Biosafety Protocol,
we do not agree with the European Communities th at we are required to take into account the
Biosafety Protocol in interpreting the multilateral WTO agreements at issue in this dispute.
(iii) Precautionary principle
7.76 We have stated earlier that, in our view, the relevant rules of international law to be taken into
account include general principles of law. The Eu ropean Communities contends that the so-called
"precautionary principle" is a relevant principle of this kind, and so we addr ess this issue below, after
summarizing the Parties' arguments.
7.77 The European Communities states that certain GMOs present potential threats to human
health and the environment. The European Comm unities submits that the existence of a potential
threat justifies the assessment of risks on a case-by-case basis and special measures of protection
based on the precautionary principle.
7.78 The European Communities asserts that the pr ecautionary principle has by now become a
fully-fledged and general principle of international law. According to the European Communities, the
precautionary principle was first recognised in the World Charter for Nature , adopted by the UN
General Assembly in 1982, and was subsequently incorporated into various international conventions
on the protection of the environment. Furthermore, the Rio Declaration that concluded the 1992 Rio
Conference on the Environment and Development codifi ed an application of this principle in its
Principle 15
255. Since then, the United Nations Framework Convention on Climate Change and the
Convention of Biological Diversity have referred to the precautionary principle. More recently, in the

252 We have no information on whether Argentina and Canada have made their intentions clear after
signing the 2000 Protocol as to whether they still wished to become a party to the 2000 Protocol.
253 We have no information on whether the United States has made its intentions clear as to whether it
wishes to become a party to the 2000 Protocol.
254 We note that it is also not in force for several third parties to this dispute, including Australia, Chile,
Honduras, Thailand and Uruguay. See http://www.biodiv.org/world/parties.asp.
255 For the text of Principle 15 of the Rio Declaration, see infra footnote 263.

specific field of GMOs, the Biosafety Protocol has confirmed the key function of the precautionary
principle in the decision to restrict or prohibit imports of GMOs in the face of scientific uncertainty.
7.79 The European Communities further points out that in many countries approval systems are
based on the need to take precautionary action. As examples, the European Communities cites the
Australian Gene Technology Act (2000), the Swiss GMO legislation and the New Zealand Hazardous
Substances and New Organisms Act. Additiona lly, the European Communities notes that the
precautionary principle is one of the "salutary prin ciples which govern the law of the environment" in
India and has been applied by the Indian Supreme Court.
256
7.80 The United States argues that the European Communities has not identified how a
"precautionary principle" would be of relevance to interpreting any particular provision of the WTO
Agreement. Moreover, the United States notes that in the EC – Hormones dispute, the Appellate
Body examined at length nearly identical ar guments presented by the European Communities
regarding the relationship between a purported "precautionary principle" and the SPS Agreement. The
European Communities has not presented, and cannot argue, that any different results should apply
here. The United States considers that as the Appe llate Body found it unnecessary and imprudent in
the EC – Hormones case to make a finding on the status of th e precautionary principle in international
law, the Panel should have no need to address this theoretical issue.
7.81 The United States nonetheless notes that it strongly disagrees that "precaution" has become a
rule of international law. According to the Un ited States, the "precautionary principle" cannot be
considered a general principle or norm of interna tional law because it does not have a single, agreed
formulation. The United States notes in this regard that, on the contrary, the concept of precaution
has many permutations across a number of differe nt factors. Thus, the United States considers
precaution to be an "approach", rather than a "principle" of international law.
7.82 Furthermore, the United States submits that if precaution is not a principle of international
law, then it is a fortiori not a rule of customary international law. The United States submits that
precaution does not fulfil any of the requirements to become a rule of customary international law for
the following reasons: (i) it cannot be consider ed a "rule" because it has no clear content and
therefore cannot be said to provide any authoritative guide for a State's conduct; (ii) it cannot be said
to reflect the practice of States, as it cannot even be uniformly defined by those who espouse it; and
(iii) given that precaution cannot be defined and, th erefore, could not possibly be a legal norm, one
could not argue that States follow it from a sense of legal obligation.

7.83 Finally, the United States argues that even if a precautionary principle were considered a
relevant rule of internationa l law under Article 31(3) of the Vienna Convention , it would be useful
only for interpreting particular treaty terms, a nd could not override any part of the of the
SPS Agreement.
7.84 Canada argues that while the Biosafety Protocol may reflect the "precautionary approach
contained in Principle 15 of the Rio Declaration ", the precautionary principle "finds reflection" in
several provisions of the SPS Agreement, including Article 5.7. Canada notes that the Appellate Body
in EC – Hormones has previously held that the precauti onary principle cannot be invoked as a ground
for justifying SPS measures that are otherwise inconsis tent with the obligations of Members set out in
particular provisions of the SPS Agreement.

256 See T.N. Godavarman Thirumalpad v. Union of India (2002) 10 SCC 606.

7.85 Argentina states that the Appellate Body has addressed the status of this so-called "principle"
of precaution in EC – Hormones.
7.86 The Panel notes the European Commun ities' contention that the precautionary principle has
"by now" become a fully-fledged and general prin ciple of international law. The European
Communities has not explained exactly what it means by the term "general principle of international
law". We note that this term may be understood as encompassing either rules of customary law or the
recognized general principles of law or both.
257 Given this, we are prepared to consider whether the
precautionary principle fits within either of these ca tegories. This approach is consistent with the
position taken by the European Communities in EC – Hormones where the European Communities
contended on appeal that the precautionary principle was a general customary rule of international law
or at least a general principle of law.258
7.87 In its report on EC – Hormones , the Appellate Body had this to say in response to the
aforementioned contention by the European Communities:259
"The status of the precautionary principle in international law continues to be the
subject of debate among academics, law pr actitioners, regulators and judges. The
precautionary principle is regarded by so me as having crystallized into a general
principle of customary international environmental law. Whether it has been widely
accepted by Members as a principle of general or customary international law
appears less than clear.260 We consider, however, that it is unnecessary, and probably
imprudent, for the Appellate Body in this appeal to take a pos ition on this important,
but abstract, question. We note that the Panel itself did not make any definitive
finding with regard to the status of the precautionary principle in international law
and that the precautionary principle, at least outside the field of international
environmental law, still awaits authoritative formulation.
261

257 See, e.g., Ian Brierly, Principles of Public International Law , 5 th ed. (Clarendon Press, 1998),
pp. 18-19.
258 Appellate Body Report, EC – Hormones, para. 121.
259 Ibid., paras. 123-124.
260 (original footnote) Authors like P. Sands, J. Cameron and J. Abouchar, while recognizing that the
principle is still evolving, submit nevertheless that there is currently sufficient state practice to support the view
that the precautionary principle is a principle of customary international law. See, for example, P. Sands,
Principles of International Environmental Law , Vol. I (Manchester University Press 1995) p. 212; J. Cameron,
"The Status of the Precautionary Principle in International Law", in J. Cameron and T. O'Riordan (eds.),
Interpreting the Precautionary Principle (Cameron May, 1994) 262, p. 283; J.Cameron and J. Abouchar, "The
Status of the Precautionary Principle in International Law", in D. Freestone and E. Hey (eds.), The
Precautionary Principle in International Law (Kluwer, 1996) 29, p. 52. Other authors argue that the
precautionary principle has not yet reached the status of a principle of intern ational law, or at least, consider
such status doubtful, among other reasons, due to the fact that the principle is still subject to a great variety of
interpretations. See, for exampl e, P. Birnie and A. Boyle, International Law and the Environment (Clarendon
Press, 1992), p. 98; L. Gündling, "The Status in Inte rnational Law of the Precautionary Principle" (1990),
5:1,2,3 International Journal of Estuarine and Coastal Law 25, p. 30; A. deMestral (et. al), International Law
Chiefly as Interpreted and Applied in Canada , 5th ed. (Emond Montgomery, 1993), p. 765; D. Bodansky, in
Proceedings of the 85th Annual Meeting of the American Society of International Law (ASIL, 1991), p. 415.
261 (original footnote) In Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), the
International Court of Justice recogn ized that in the field of envir onmental protection "... new norms and
standards have been developed, set forth in a great number of instruments during the last two decades. Such new
norms have to be taken into consideration, and such new standards given proper we ight ...". However, we note
that the Court did not identify the precautionary principle as one of those recently developed norms. It also

It appears to us important, nevertheless, to note some as pects of the relationship of
the precautionary principle to the SPS Agreement. First, the principle has not been
written into the SPS Agreement as a ground for justifying SPS measures that are
otherwise inconsistent with the obligati ons of Members set out in particular
provisions of that Agreement. Secondly, the precautionary principle indeed finds
reflection in Article 5.7 of the SPS Agreement. We agree, at the same time, with the
European Communities, that there is no need to assume that Article 5.7 exhausts the
relevance of a precautionary principle. It is reflected also in the sixth paragraph of
the preamble and in Article 3.3. These explicitly recognize the right of Members to
establish their own appropriate level of sanitary protection, which level may be higher
(i.e., more cautious) than that implied in existing international standards, guidelines
and recommendations. Thirdly, a panel ch arged with determining, for instance,
whether "sufficient scientific evidence" ex ists to warrant the maintenance by a
Member of a particular SPS measure may, of course, and should, bear in mind that
responsible, representative governments commonly act from perspectives of prudence
and precaution where risks of irreversible, e.g. life-terminating, damage to human
health are concerned. Lastly, however, the precautionary principle does not, by itself,
and without a clear textual directive to that effect, relieve a panel from the duty of
applying the normal (i.e. customary international law) principles of treaty
interpretation in reading the provisions of the SPS Agreement."
7.88 The Appellate Body made this statement in Janua ry 1998. It appears to us from the Parties'
arguments and other available materials that the le gal debate over whether the precautionary principle
constitutes a recognized principle of general or cust omary international law is still ongoing. Notably,
there has, to date, been no authoritative decision by an international court or tribunal which recognizes
the precautionary principle as a principle of general or customary international law.
262 It is correct
that provisions explicitly or implicitly applying th e precautionary principle have been incorporated
into numerous international conve ntions and declarations, although, for the most part, they are
environmental conventions and declarations. 263 Also, the principle has been referred to and applied

declined to declare that such principle could override the obligations of the Treaty between Czechoslovakia and
Hungary of 16 September 1977 concerning the construction and operation of the Gabcíkovo/Nagymaros System
o f L o c k s . S e e , Case Concerning the Gabcíkovo-Nagymaros Project (Hungary/Slovakia), I.C.J. Judgement,
25 September 1997, paras. 140, 111-114.
262 We note that in the Southern Bluefin Tuna Cases brought before the International Tribunal for the
Law of the Sea, two judges referred to the precautionary principle in their separate opinions. Judge Treves
indicated understanding for "the reluctance of the Tribunal in taking a position as to whether the precautionary
approach is a binding principle of cu stomary international law", noting also that "[o]ther cour ts and tribunals,
recently confronted with this question, have avoided to give an answer". Judge Laing considered that it was
"not possible, on the basis of the ma terials available and arguments presen ted [...], to determine whether [...]
customary international law recognizes a precautionary principle", adding th at "treaties and formal instruments
use different language of obligation; the notion is stated variously (as a principle, approach, concept, measures,
action); no authoritative judicial decision unequivocally supports the notion; doctrine is indecisive; and domestic
juridical materials are uncertain or evolving". International Tribunal for the Law of the Sea, Southern Bluefin
Tuna Cases (New Zealand v. Japan ; Australia v. Japan ) (Requests for Provisional Measures) , 1999, para. 9
(Separate Opinion of Judge Treves) and para. 16 (Separate Opinion of Judge Laing).
263 We note, by way of example, Principle 15 of the 1992 Rio Declaration on Environment and
Development:

In order to protect the envir onment, the precautionary approach shall be widely applied by
States according to their capab ilities. Where there are threats of serious or irreversible
damage, lack of full scientific certainty shall not be used as a reason for postponing cost-
effective measures to prevent environmental degradation.

by States at the domestic level, again mostly in domestic environmental law.
264 On the other hand,
there remain questions regarding the precise defi nition and content of the precautionary principle. 265
Finally, regarding doctrine, we note that many aut hors have expressed the view that the precautionary
principle exists as a general principle in international law. 266 At the same time, as already noted by
the Appellate Body, others have expressed sceptic ism and consider that the precautionary principle
has not yet attained the status of a general principle in international law.267
7.89 Since the legal status of the precautionary pr inciple remains unsettled, like the Appellate
Body before us, we consider that prudence suggests th at we not attempt to resolve this complex issue,
particularly if it is not necessary to do so. Our an alysis below makes clear that for the purposes of

We also note preambular paragraph 9 of the Convention on Biological Diversity, which states:

Noting also that where there is a threat of signi ficant reduction or loss of biological diversity,
lack of full scientific certainty should not be used as a reason for postponing measures to
avoid or minimize such a threat.

Finally, we note the Biosafety Protocol, which states in Article 1:

In accordance with the precau tionary approach contained in Principle 15 of the Rio
Declaration on Environment and Development, the objective of this Protocol is to contribute
to ensuring an adequate level of protection in the field of the safe transfer, handling and use of
living modified organisms resulting from modern biotechnology that may have adverse effects
on the conservation and sustainable use of biological diversity, taking also into account risks
to human health, and specifically focusing on transboundary movements.

Furthermore, Article 10(6) of the Protocol states:

Lack of scientific certainty due to insufficien t relevant scientific information and knowledge
regarding the extent of the potential adverse effects of a living modified organism on the
conservation and sustainable use of biological diversity in the Party of import, taking also into
account risks to human health, shall not prevent that Party from taking a decision, as
appropriate, with regard to the import of the living modified organism in question as referred
to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.

264 We note, for instance, the European Communities' reference to a decision of the Indian Supreme
Court. Another example is provided by Article 1(6) of Colombia's Law 99 of 1993, which provides that "[i]n
formulating environmental policy, account shall be taken of the results of the scientific investigation process.
However, the environmental authoritie s and individuals shall apply the pr ecautionary principle according to
which, where there are threats of seri ous and irreversible damage, lack of full scientific certainty shall not be
used as a reason for postponing cost-effective measur es to prevent environmental degradation" (Panel's
translation from Spanish).
265 This point was made, for instance, by Judge Laing in his previously mentioned separate opinion in
the Southern Bluefin Tuna Cases.
266 See, e.g., O. McIntyre/T. Mosedale, "The Precautiona ry Principle as a Norm of Customary
International Law", Journal of Environmental Law 9 (1997), pp. 222-223; J. Cameron/W. Wade-
Gery/J. Abouchar, "Precautionary Principle and Future Generations ", in E. Agius et al . (eds.), Future
Generations and International Law , London, 1998, p. 96; P. Sands, Principles of International Environmental
Law, 2nd ed. (Cambridge University Press, 2003), p. 279.
267 See, e.g., L. M. Jurgielewicz, Global Environmental Change and International Law (Lanham,
1996), p. 64; P.-M. Dupuy, "Où en est le droit inte rnational de l'environnement à la fin du siècle?", Revue
Générale de Droit International Public 4 (1997), pp. 889-890; J. O. McGinnis, "The Appropriate Hierarchy of
Global Multilateralism and Customary International Law: The Example of the WTO", Virginia Journal of
International Law 44 (2003), pp. 260-261.

disposing of the legal claims before us, we need not take a position on whether or not the
precautionary principle is a recognized principle of general or customary international law.
Therefore, we refrain from expressing a view on this issue.
(b) Other rules of international law as evidence of the ordinary meaning of terms used in a treaty
7.90 Up to this point, we have examined whether th ere are other applicable rules of international
law which we are required to take into account , in accordance with Article 31(3)(c) of the Vienna
Convention, in interpreting the WTO agreem ents at issue in this dispute. We now turn to examine
whether other rules of international law could be c onsidered by us in the interpretation of the WTO
agreements at issue even if these rules are not applicable in the relations between the WTO Members
and thus do not fall within the category of rules which is at issue in Article 31(3)(c).
7.91 The European Communities notes in this regard that in US – Shrimp the Appellate Body
interpreted WTO rules by reference to treatie s which were not binding on all parties to the
proceedings. More specifically, the European Communities points out that the Appellate Body in that
case invoked treaties in support of arguments made by the United States, even though the United
States had either not signed or not ratified these treaties. The European Communities notes that one
such treaty was the Convention on Biological Diversity.
7.92 The Panel recalls that pursuant to Article 31(1) of the Vienna Convention , the terms of a
treaty must be interpreted in accordance with the "o rdinary meaning" to be given to these terms in
their context and in the light of its object and purpose. The ordinary meaning of treaty terms is often
determined on the basis of dictionaries. We think th at, in addition to dictionaries, other relevant rules
of international law may in some cases aid a treat y interpreter in establishing, or confirming, the
ordinary meaning of treaty terms in the specific context in wh ich they are used.
268 Such rules would
not be considered because they are legal rules, but rather because they may provide evidence of the
ordinary meaning of terms in the same way that dictionaries do. 269 They would be considered for
their informative character. It fo llows that when a treaty interpreter does not consider another rule of
international law to be informative, he or she need not rely on it.
7.93 In the light of the foregoing, we consider that a panel may consider other relevant rules of
international law when interpreting the terms of WTO agreements if it deems such rules to be
informative. But a panel need not necessarily rely on ot her rules of international law, particularly if it
considers that the ordinary meaning of the terms of WTO agreements may be ascertained by reference
to other elements.
7.94 This approach is consistent with the Appellate Body's approach in US – Shrimp , as we
understand it. In that case, the Appellate Body had to interpret the term "exhaustible natural
resources" in Article XX(g) of the GATT 1994. Th e Appellate Body found that this term was by
definition evolutionary and therefore found it "pertinen t to note that modern international conventions
and declarations make frequent references to na tural resources as embrac ing both living and non-

268 It is useful to note in this context that the Appellate Body has stated that "dictionaries are important
guides to, not dispositive statements of, definitions of words appearing in agreements and legal documents".
Appellate Body Report, US – Offset Act (Byrd Amendment), para. 248.
269 A treaty interpreter would have to keep in mind, of course, that other rules of international law may
be negotiated rules and, as such, may assign meanings to particular terms which may not be reflective of the
ordinary meaning of those terms. We note that this possibility is recognized in Article 31(4) of the Vienna
Convention, which states that "[a] special meaning shall be give n to a term if it is established that the parties so
intended".

living resources".
270 Thus, as we understand it, the Appe llate Body drew on other rules of
international law because it considered that they were informative and aided it in establishing the
meaning and scope of the term "exhaustible natural resources". 271 The European Communities
correctly points out that the Appellate Body referred to conventions which were not applicable to all
disputing parties. However, the mere fact that one or more disputing parties are not parties to a
convention does not necessarily mean that a conven tion cannot shed light on the meaning and scope
of a treaty term to be interpreted.272
7.95 In the present case, in respon se to a question from the Panel 273, the European Communities
has identified a number of provisions of the Convention on Biological Diversity and of the Biosafety
Protocol which it considers must be taken into account by the Panel. 274 The European Communities
has not explained how these provisions are relevant to the interpretation of the WTO agreements at
issue in this dispute. We have carefully cons idered the provisions referred to by the European
Communities. Ultimately, however, we did not fi nd it necessary or appropriate to rely on these
particular provisions in interpreting the WTO agreements at issue in this dispute.
7.96 Furthermore, we recall that after consultin g the Parties, we have requested several
international organizations (Codex, FAO, the IPPC Secretariat, WHO, OIE, the CBD Secretariat and
UNEP) to identify materials (reference works, glossaries, official documents of the relevant
international organizations, including conventions, sta ndards and guidelines, etc.) that might aid us in
determining the ordinary meaning of certain terms used in the definitions provided in Annex A to the
SPS Agreement. The materials we have obtained in this way have been taken into account by us, as
appropriate.
B. OVERVIEW
 OF MEASURES AT ISSUE
7.97 In this section, we provide an overview of the measures at issue in this dispute. We have
pointed out earlier that the three Complaining Par ties in this dispute have filed legally separate
complaints, but that each of these complaints relate s to the same matter and that the DSB therefore
decided to have them examined by a single panel.
7.98 The specific measures which are being contested in each complaint are indeed quite similar.
As the case name suggests, the measures at issue in all three complaints are certain EC measures
affecting the approval and marketing of biotech prod ucts. More specifically, the Complaining Parties
are each challenging three identical categories of EC measures. The categories in question are:
 (i) the alleged general EC moratorium on a pprovals of biotech products (hereafter the
"general EC moratorium");

 (ii) various product-specific EC measures affecting the approval of specific biotech
products (hereafter the "product-specific EC measures"); and

270 Appellate Body Report, US – Shrimp, para. 130.
271 We note that the Appellate Body did not suggest that it was looking to other rules of international
law because it was required to do so pursuant to the provisions of Article 31(3)(c) of the Vienna Convention.
Indeed, the Appellate Body did not even mention Article 31(3)(c).
272 Equally, in a case where all disputing parties are parties to a convention, this fact would not
necessarily render reliance on that convention appropriate.
273 Panel question No. 4.
274 The European Communities refers to the Preamble and Article 8(g) of the Convention on Biological
Diversity and Articles 1, 8, 10, 11, 15, 23, 26 and Annex III of the Biosafety Protocol.