Document: WT/DS291/R WT/DS292/R WT/DS293/R Page 1067 (ii) DS292 (Canada) With reference to DS292, and having re gard to the arguments and evidence presented by Canada and the European Communities,  the Panel concludes that it is not necessary to make findings on whether th e safeguard measures which are being challenged by Canada are inconsistent with Article XI:1 of the GATT 1994. Accordingly, the Panel offers no findings under Article XI:1.
Date: 29 August 2003
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

(ii) DS292 (Canada)

 With reference to DS292, and having re gard to the arguments and evidence presented
by Canada and the European Communities, the Panel concludes that it is not
necessary to make findings on whether th e safeguard measures which are being
challenged by Canada are inconsistent with Article XI:1 of the GATT 1994.
Accordingly, the Panel offers no findings under Article XI:1.

VIII. CONCLUSIONS AND RECOMMENDATIONS
8.1 Before concluding, the Panel wishes to make clear the issues on which it made a decision, and
those which it did not address.
A. OVERVIEW
 OF THE ISSUES ADDRESSED AND DECIDED BY THE PANEL
8.2 The issues before the Panel concerned the alle ged failure of the European Communities to
reach final decisions regarding the approval of biotech products from October 1998 to the time of
establishment of the Panel on 29 August 2003, and the WTO-consistency of prohibitions imposed by
certain EC member States with regard to specifi c biotech products after these products had been
approved by the European Communities for Community-wide marketing.
8.3 In light of this, the Panel did not examine:
− whether biotech products in general are safe or not.

− whether the biotech products at issue in this dispute are "like" their conventional
counterparts. Although this claim was made by the Complaining Parties ( i.e., the
United States, Canada and Argentina) in rela tion to some aspects of their complaints,
the Panel did not find it necessary to address those aspects of the complaints.

− whether the European Communities has a right to require the pre-marketing approval
of biotech products. This was not raised by the Complaining Parties.

− whether the European Communities' approval procedures as established by
Directive 90/220, Directive 2001/18 and Re gulation 258/97, which provide for a
product-by-product assessment requiring scientif ic consideration of various potential
risks, are consistent with the Europ ean Communities' obligations under the WTO
agreements. This was not raised by the Complaining Parties.

− the conclusions of the relevant EC sci entific committees regarding the safety
evaluation of specific biotech products. These were not challenged by the
Complaining Parties, although they did challenge the scientific basis for some of the
questions and objections made by various EC member States. In light of this, the
Panel, in consultation with the Parties, sought advice from a number of scientific
experts.

8.4 Turning to the issues the Panel did examine, the Panel first considered whether the EC
approval legislation under which the European Communities allegedly did not reach final decisions is
properly assessed under the SPS Agreement. The Panel has found that the European Communities'
procedures for the approval of GMOs set out in Directives 90/220 and 2001/18 are SPS measures

within the meaning of the SPS Agreement. The potential risks to be exam ined in the context of these
directives, particularly as described in the annexes to Directive 2001/18, are the types of risk covered
by the SPS Agreement. Regarding the European Communities' procedures for the approval of novel
foods and food ingredients set out in Regulation 258/ 97, the Panel has found that these are, in part,
SPS measures within the scope of the SPS Agreement.
8.5 The Panel notes, however, that both the eviden ce provided by the European Communities and
the advice provided to the Panel by the experts advising it indicate that many of the identified
concerns are highly unlikely to occur in practice (e.g., the transfer of antibiotic resistance from marker
genes used in the production of some biotech plants to bacteria in the human gut). On the other hand,
other identified concerns, such as those relating to th e development of pesticide-resistance in target
insects through exposure to pesticides (including those incorporated into biotech plants) have indeed
been documented to occur, including with respect to non-biotech crops. We reiterate, however, that
the right of the European Communities to consider these possible risks prior to giving approval for the
consumption or planting of biotech plants has not been questioned by any of the Complaining Parties.
8.6 The Complaining Parties asserted that a moratorium on approvals was in effect in the
European Communities between October 1998 and August 2003. Based on the evidence before it, the
Panel has found that the European Communities applied a general de facto moratorium on approvals
of biotech products between June 1999 and 29 August 2003, the date of establishment of this Panel.
The Panel determined that the moratorium was not itself an SPS measure within the meaning of the
SPS Agreement, but rather affected the operation and a pplication of the EC approval procedures,
which are set out in the relevant EC approval legislation and which we had found to be SPS measures.
With respect to Directives 90/220 and 2001/18, the Panel has concluded that the general de facto
moratorium resulted in a failure to complete indi vidual approval procedures without undue delay, and
hence gave rise to an inconsistency with Article 8 and Annex C of the SPS Agreement. With respect
to Regulation 258/97, the Panel found that, to th e extent the approval procedure addressed safety
aspects within the scope of the SPS Agreement, the general de facto moratorium resulted in a failure
to complete individual approval procedures without undue delay, and hence also gave rise to an
inconsistency with Article 8 and Annex C of the SPS Agreement.
8.7 The Complaining Parties also claimed that, c ontrary to its WTO obligations, the European
Communities failed to consider for final approval a pplications concerning certain specified biotech
products for which the European Communities had commenced approval procedures. We examined
the record of consideration of 27 applications iden tified by the Complaining Parties. We have found
that there was undue delay in the completion of th e approval procedure with respect to 24 of the
27 relevant products. We therefor e concluded that, in relation to the approval procedures concerning
these 24 products, the European Communities has breached its obligations under Article 8 and
Annex C of the SPS Agreement.
8.8 The Complaining Parties furthermore brought complaints against nine safeguard measures
taken by certain EC member States. These safeguard measures are in the form of prohibitions
imposed by an individual EC member State on a pa rticular biotech product that has been formally
approved for use within the European Communitie s. The safeguard meas ures challenged by the
Complaining Parties have been taken by Austria, Belgium, France, Germany, Italy and Luxembourg.
The Complaining Parties did not challenge the EC approval legislation, which provides for the
conditional right of individual EC member States to impose SPS measures which differ from those of
the European Communities as a whole. Instead, wh at the Complaining Parties challenged were the
prohibitions imposed by the relevant member States on the basis of the aforementioned EC approval
legislation. According to the Complaining Parti es, the safeguard measures imposed by the relevant
member States were inconsistent with the European Communities' WTO obligations.

8.9 We determined that the objectives identifie d by each member State for its safeguard
measure(s) fall within the scope of the SPS Agreement. For each of the products at issue, the
European Communities' relevant scientific comm ittee had evaluated the potential risks to human
health and/or the environment prior to the gran ting of Community-wide approval, and had provided a
positive opinion. The relevant EC scientific committee subsequently also reviewed the arguments and
the evidence submitted by the member State to justify the prohibition, and did not consider that such
information called into question its earlier conclusi ons. The Panel thus considered that sufficient
scientific evidence was available to permit a risk assessment as required by the SPS Agreement.
Hence, in no case was the situation one in which the Panel had been persuaded that the relevant
scientific evidence was insufficient to perform a risk assessment, such that the member State might
have had recourse to a provisional measure under Article 5.7 of the SPS Agreement.
8.10 The Panel also considered whether any risk assessment had been provided by the relevant
member States which would reasonably support the pr ohibition of the biotech products at issue.
Although some of the member States did provide sci entific studies, in no case did they provide an
assessment of the risks to human health and/or the environment meeting the requirements of the
SPS Agreement. The Panel likewise examined whether th e risk assessments undertaken by the EC
scientific committees could provide reasonable suppor t for a prohibition of the biotech products at
issue, but considered that this w as not the case. In the light of this, the Panel has concluded that each
of the safeguard measures taken by the relevant me mber States fails to meet the obligations of the
European Communities under the SPS Agreement.
B. STRUCTURE
 OF THE PANEL'S CONCLUSIONS AND RECOMMENDATIONS
8.11 As we have indicated at the beginning of the Fi ndings section, consistent with the fact that we
examined three legally distinct complaints, we have particularized for each of the three Complaining
Parties ( i.e., the United States, Canada and Argentina) the conclusions we have reached and the
recommendations we make, if any, in respect of their respective complaints. Accordingly, we provide
three separate sets of conclusions and recommendations.
8.12 We further recall that the Complaining Parties are each challenging three identical categories
of EC measures. The categories in question are:
(a) the alleged general EC moratorium on appr ovals of biotech products (hereafter the
"general EC moratorium");
(b) various product-specific EC measures a ffecting the approval of specific biotech
products (hereafter the "product-specific EC measures"); and
(c) various EC member State safeguard me asures prohibiting the import and/or
marketing of specific biotech products (hereafter the "EC member State safeguard
measures").

C. COMPLAINT
 BY THE UNITED STATES (DS291): CONCLUSIONS AND
RECOMMENDATIONS OF THE PANEL
1. General EC moratorium
8.13 For the reasons set forth in this Report, the Panel concludes, as a factual matter, that:
(a) The European Communities applied a general de facto moratorium on the approval of
biotech products between June 1999 and A ugust 2003, which is when this Panel was
established.
8.14 For the reasons set forth in this Report, the Panel further concludes, as a legal matter, that:
(a) The European Communities has acted inconsistently with its obligations under
Annex C(1)(a), first clause, of the SPS Agreement and, consequently, with its
obligations under Article 8 of the SPS Agreement by applying a general de facto
moratorium on approvals between June 1999 and August 2003.
(b) The United States has not established that the Eur opean Communities has acted
inconsistently with its obligations under Annex C(1)(b) of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
(c) The European Communities has not acted inconsistently with its obligations under
Annex B(1) and Article 7 of the SPS Agreement in respect of the general de facto
moratorium on approvals.
(d) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.
(e) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.
(f) The United States has not established that the European Communities has acted
inconsistently with its obligations under Article 2.2 of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
(g) The United States has not established that the European Communities has acted
inconsistently with its obligations under Article 2.3 of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
8.15 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement, it must be presumed to have nullified or impaired benefits accruing to the United
States under that Agreement.

8.16 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the general de facto moratorium on approvals into
conformity with its obligations under the SPS Agreement, if, and to the extent that, that measure has
not already ceased to exist.
2. Product-specific EC measures
8.17 The Panel made findings in relation to twen ty-five product-specific EC measures challenged
by the United States (hereafter "the relevant product-specific measures").
8.18 For the reasons set forth in this Report, the Panel concludes that:
(a) The European Communities has breached
 its obligations under Annex C(1)(a), first
clause, of the SPS Agreement and, consequently, its obligations under Article 8 of the
SPS Agreement in respect of the approval procedures concerning:2185
(i) Falcon oilseed rape;
(ii) MS8/RF3 oilseed rape;
(iii) RR fodder beet;
(iv) Bt-531 cotton;
(v) RR-1445 cotton;
(vi) Liberator oilseed rape;
(vii) Bt-11 maize (EC-69);
(viii) RR oilseed rape (EC-70);
(ix) BXN cotton;
(x) Bt-1507 maize (EC-74);
(xi) Bt-1507 maize (EC-75);
(xii) NK603 maize;
(xiii) GA21 maize (EC-78);
(xiv) MON810 x GA21 maize;
(xv) RR sugar beet;
(xvi) GA21 maize (food);

2185 In respect of the approval procedures conducted under Regulation 258/97 – the procedures
concerning those biotech products which are identified as "food" – the Panel's conclusions apply to the extent
the relevant approval procedure is an SPS measure.

(xvii) Bt-11 sweet maize (food);
(xviii) MON810 x GA21 maize (food);
(xix) Bt-1507 maize (food);
(xx) NK603 maize (food); and
(xxi) RR sugar beet (food).
(b) The United States has not established
 that the European Communities has breached
its obligations under Annex C(1)(a), first clause, and Article 8 of the SPS Agreement
in respect of the approval procedures concerning:
(i) the Transgenic potato;
(ii) LL soybeans (EC-71);
(iii) LL oilseed rape; and
(iv) LL soybeans (food).
(c) The United States has not established that the relevant product-specific measures
have resulted in the European Communities ac ting inconsistently with its obligations
under Annex C(1)(b) and Article 8 of the SPS Agreement.
(d) The European Communities has not acted inconsistently with its obligations under
Annex B(1) and Article 7 of the SPS Agreement in respect of any of the relevant
product-specific measures.
(e) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(f) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(g) The United States has not established that the European Communities has acted
inconsistently with its obliga tions under Article 2.2 of the SPS Agreement in respect
of any of the relevant product-specific measures.
8.19 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement in respect of the relevant product-specifi c measures, it must be presumed to have
nullified or impaired benefits accruing to the United States under that Agreement.
8.20 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the rele vant product-specific measures into conformity

with its obligations under the SPS Agreement. These recommendations do not apply to those relevant
product-specific measures that were withdrawn after the Panel was established or the product-specific
measure affecting the approval of Bt-11 sweet maiz e (food), since the application concerning Bt-11
sweet maize (food) was definitively approved during the course of the Panel proceedings.
3. EC member State safeguard measures
8.21 The Panel made findings in relation to all ni ne member State safeguard measures challenged
by the United States (hereafter "the relevant member State safeguard measures").
(a) Austria – T25 maize
8.22 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently
 with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on T25 maize, the Eur opean Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(b) Austria - Bt-176 maize
8.23 In relation to the Austrian safeguard measure on Bt-176 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The Austrian safeguard measure on Bt-176 maize is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) Austria - MON810 maize
8.24 In relation to the Austrian safeguard measure on MON810 maize, and for the reasons set forth
in this Report, the Panel concludes that:
(a) The Austrian safeguard measure on MON810 maize is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the

measure in question, the European Communities has acted inconsistently
 with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on MON810 maize, the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(d) France - MS1/RF1 oilseed rape (EC-161)
8.25 In relation to the French safeguard measure on MS1/RF1 oilseed rape (EC-161), and for the
reasons set forth in this Report, the Panel concludes that:
(a) The French safeguard measure on MS1/RF1 oilseed rape (EC-161) is not based on a
risk assessment as required by Article 5.1 of the SPS Agreement, and it is not
consistent with the requirements of Article 5.7 of the SPS Agreement. Therefore, by
maintaining the measure in question, the European Co mmunities has acted
inconsistently with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the French
safeguard measure on MS1/RF1 oilseed ra pe (EC-161), the European Communities
has, by implication, also acted inconsistently with the second and third requirements
in Article 2.2 of the SPS Agreement.
(e) France - Topas oilseed rape
8.26 In relation to the French safeguard measure on Topas oilseed rape, and for the reasons set
forth in this Report, the Panel concludes that:
(a) The French safeguard measure on Topas o ilseed rape is not based on a risk
assessment as required by Article 5.1 of the SPS Agreement, and it is not consistent
with the requirements of Article 5.7 of the SPS Agreement. Therefore, by
maintaining the measure in question, the European Co mmunities has acted
inconsistently with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the French
safeguard measure on Topas oilseed rape , the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(f) Germany – Bt-176 maize
8.27 In relation to the German safeguard measure on Bt -176 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The German safeguard measure on Bt-176 maiz e is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.

(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the German
safeguard measure on Bt-176 maize, the European Communities has, by implication,
also acted inconsistently
 with the second and third requirements in Article 2.2 of the
SPS Agreement.
(g) Greece - Topas oilseed rape
8.28 In relation to the Greek safeguard measure on Topas oilseed rape, and for the reasons set forth
in this Report, the Panel concludes that:
(a) The Greek safeguard measure on Topas oilseed rape is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Greek
safeguard measure on Topas oilseed rape , the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(c) There is no need to rule on the United States' claim under Article XI:1 of the GATT
1994.
(h) Italy - Bt-11 maize (EC-163), MON810 maize, MON809 maize and T25 maize
8.29 In relation to the Italian safeguard meas ure on Bt-11 maize (EC-163), MON810 maize,
MON809 maize and T25 maize, and for the reasons set forth in this Report, the Panel concludes that:
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize, MON809
maize and T25 maize is not based on a risk assessment as required by Article 5.1 of
the SPS Agreement, and it is not consistent with the requirements of Article 5.7 of the
SPS Agreement. Therefore, by maintaining the measure in question, the European
Communities has acted inconsistently
 with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Italian
safeguard measure on Bt-11 maize (EC- 163), MON810 maize, MON809 maize and
T25 maize, the European Communities has, by implication, also acted inconsistently
with the second and third requirements in Article 2.2 of the SPS Agreement.
(i) Luxembourg – Bt-176 maize
8.30 In relation to Luxembourg's safeguard measure on Bt-176 maize, and for the reasons set forth
in this Report, the Panel concludes that:
(a) Luxembourg's safeguard measure on Bt-176 ma ize is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.

(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, Luxembourg's
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication,
also acted inconsistently
 with the second and third requirements in Article 2.2 of the
SPS Agreement.
(j) Nullification or impairment of benefits and recommendations
8.31 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement in respect of the relevant member State safeguard measures, it must be presumed
to have nullified or impaired benefits accruing to the United States under that Agreement.
8.32 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the relevant member State safeguard measures into
conformity with its obligations under the SPS Agreement.
D. COMPLAINT BY CANADA (DS292): CONCLUSIONS AND RECOMMENDATIONS OF
THE PANEL
1. General EC moratorium
8.33 For the reasons set forth in this Report, the Panel concludes, as a factual matter, that:
(a) The European Communities applied a general de facto moratorium on the approval of
biotech products between June 1999 and A ugust 2003, which is when this Panel was
established.
8.34 The Panel further concludes, as a legal matter, that:
(a) The European Communities has acted inconsistently with its obligations under
Annex C(1)(a), first clause, of the SPS Agreement and, consequently, with its
obligations under Article 8 of the SPS Agreement by applying a general de facto
moratorium on approvals between June 1999 and August 2003.
(b) The European Communities has not acted inconsistently with its obligations under
Annex B(1) and Article 7 of the SPS Agreement in respect of the general de facto
moratorium on approvals.
(c) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.
(d) The European Communities has not acted inconsistently with its obligations under
Article 5.6 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.
(e) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.

(f) Canada has not established
 that the European Communiti es has acted inconsistently
with its obligations under Article 2.2 of the SPS Agreement by applying a general de
facto moratorium on approvals between June 1999 and August 2003.
(g) Canada has not established that the European Communiti es acted inconsistently with
its obligations under Article 2.3 of the SPS Agreement by applying a general de facto
moratorium on approvals between June 1999 and August 2003.
8.35 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement, it must be presumed to have nullified or impaired benefits accruing to Canada
under that Agreement.
8.36 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the general de facto moratorium on approvals into
conformity with its obligations under the SPS Agreement, if, and to the extent that, that measure has
not already ceased to exist.
2. Product-specific EC measures
8.37 The Panel made findings in relation to four product-specific EC measures challenged by
Canada (hereafter "the relevant product-specific measures").
8.38 For the reasons set forth in this Report, the Panel concludes that:
(a) The European Communities has breached its obligations under Annex C(1)(a), first
clause, of the SPS Agreement and, consequently, its obligations under Article 8 of the
SPS Agreement in respect of the approval procedures concerning:
(i) MS8/RF3 oilseed rape;
(ii) RR oilseed rape (EC-70);
(iii) MS1/RF1 oilseed rape (EC-89); and
(iv) MS1/RF2 oilseed rape.
(b) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(c) The European Communities has not acted inconsistently with its obligations under
Article 5.6 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(d) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement in respect of any of the relevant product-specific
measures.

(e) Canada has not established
 that the European Communiti es has acted inconsistently
with its obligations under Article 2.2 of the SPS Agreement in respect of any of the
relevant product-specific measures.
(f) Canada has not established that the European Communiti es has acted inconsistently
with its obligations under Article 2.3 of the SPS Agreement in respect of any of the
relevant product-specific measures.
(g) There is no need to rule on Canada's claim under Artic le III:4 of the GATT 1994 in
respect of any of the relevant product-specific measures.
(h) There is no need to rule on Canada's claims under Articles 5.1.2, 5.2.1, first part, 2.1
and 2.2 of the TBT Agreement in respect of any of the relevant product-specific
measures.
8.39 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement in respect of the relevant product-specifi c measures, it must be presumed to have
nullified or impaired benefits accruing to Canada under that Agreement.
8.40 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the rele vant product-specific measures into conformity
with its obligations under the SPS Agreement.
3. EC member State safeguard measures
8.41 The Panel made findings in relation to all five member State safeguard measures challenged
by Canada (hereafter "the relevant member State safeguard measures").
(a) Austria – T25 maize
8.42 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on T25 maize, the Eur opean Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) There is no need to rule on Canada's claim under the firs t requirement of Article 2.2
and under Article 2.3 of the SPS Agreement.

(d) There is no need to rule
 on Canada's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Canada's alternative claims under Articles 2.1, 2.2 and 2.9
of the TBT Agreement.
(f) There is no need to rule on Canada's claim under Article III:4 of the GATT 1994.
(b) France - MS1/RF1 oilseed rape (EC-161)
8.43 In relation to the French safeguard measure on MS1/RF1 oilseed rape (EC-161), and for the
reasons set forth in this Report, the Panel concludes that:
(a) The French safeguard measure on MS1/RF1 oilseed rape is not based on a risk
assessment as required by Article 5.1 of the SPS Agreement, and it is not consistent
with the requirements of Article 5.7 of the SPS Agreement. Therefore, by
maintaining the measure in question, the European Co mmunities has acted
inconsistently with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the French
safeguard measure on MS1/RF1 oilseed ra pe, the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(c) There is no need to rule on Canada's claim under the firs t requirement of Article 2.2
and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Canada's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Canada's alternative claims under Articles 2.1, 2.2 and 2.9
of the TBT Agreement.
(f) There is no need to rule on Canada's claim under Article III:4 of the GATT 1994.
(c) France - Topas oilseed rape
8.44 In relation to the French safeguard measure on Topas oilseed rape, and for the reasons set
forth in this Report, the Panel concludes that:
(a) The French safeguard measure on Topas o ilseed rape is not based on a risk
assessment as required by Article 5.1 of the SPS Agreement, and it is not consistent
with the requirements of Article 5.7 of the SPS Agreement. Therefore, by
maintaining the measure in question, the European Co mmunities has acted
inconsistently with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the French
safeguard measure on Topas oilseed rape , the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.

(c) There is no need to rule
 on Canada's claim under the firs t requirement of Article 2.2
and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Canada's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Canada's alternative claims under Articles 2.1, 2.2 and 2.9
of the TBT Agreement.
(f) There is no need to rule on Canada's' claim under Article III:4 of the GATT 1994.
(d) Greece - Topas oilseed rape
8.45 In relation to the Greek safeguard measure on Topas oilseed rape, and for the reasons set forth
in this Report, the Panel concludes that:
(a) The Greek safeguard measure on Topas oilseed rape is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Greek
safeguard measure on Topas oilseed rape , the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(c) There is no need to rule on Canada's claim under the firs t requirement of Article 2.2
and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Canada's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Canada's alternative claims under Articles 2.1, 2.2 and 2.9
of the TBT Agreement.
(f) There is no need to rule on Canada's claim under Article XI:1 of the GATT 1994.
(e) Italy - Bt-11 maize (EC-163), MON810 maize, MON809 maize and T25 maize
8.46 In relation to the Italian safeguard meas ure on Bt-11 maize (EC-163), MON810 maize,
MON809 maize and T25 maize, and for the reasons set forth in this Report, the Panel concludes that:
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize, MON809
maize and T25 maize is not based on a risk assessment as required by Article 5.1 of
the SPS Agreement, and it is not consistent with the requirements of Article 5.7 of the
SPS Agreement. Therefore, by maintaining the measure in question, the European
Communities has acted inconsistently with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Italian
safeguard measure on Bt-11 maize (EC- 163), MON810 maize, MON809 maize and

T25 maize, the European Communities has, by implication, also acted inconsistently

with the second and third requirements in Article 2.2 of the SPS Agreement.
(c) There is no need to rule on Canada's claim under the firs t requirement of Article 2.2
and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Canada's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Canada's alternative claims under Articles 2.1, 2.2 and 2.9
of the TBT Agreement.
(f) There is no need to rule on Canada's claim under Article III:4 of the GATT 1994.
(f) Nullification or impairment of benefits and recommendations
8.47 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement in respect of the relevant member State safeguard measures, it must be presumed
to have nullified or impaired benefits accruing to Canada under that Agreement.
8.48 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the relevant member State safeguard measures into
conformity with its obligations under the SPS Agreement.
E. COMPLAINT BY ARGENTINA (DS293): CONCLUSIONS AND RECOMMENDATIONS
OF THE PANEL
1. General EC moratorium
8.49 For the reasons set forth in this Report, the Panel concludes, as a factual matter, that:
(a) The European Communities applied a general de facto moratorium on the approval of
biotech products between June 1999 and A ugust 2003, which is when this Panel was
established.
8.50 The Panel further concludes, as a legal matter, that:
(a) The European Communities has not acted inconsistently with its obligations under
Annex B(1) and Article 7 of the SPS Agreement in respect of the general de facto
moratorium on approvals.
(b) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.
(c) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement by applying a general de facto moratorium on
approvals between June 1999 and August 2003.

(d) Argentina has not established
 that the European Communities has acted
inconsistently with its obligations under Article 2.2 of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
(e) Argentina has not established that the European Communities has acted
inconsistently with its obligations under Article 2.3 of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
(f) Argentina has not established that the European Communities has acted
inconsistently with its obliga tions under Article 10.1 of the SPS Agreement by
applying a general de facto moratorium on approvals between June 1999 and
August 2003.
8.51 In view of the above conclusions, the Panel makes no recommendations pursuant to
Article 19.1 of the DSU.
2. Product-specific EC measures
8.52 The Panel made findings in relation to ten product-specific EC measures challenged by
Argentina (hereafter "the relevant product-specific measures"). However, Argentina made various
claims under Article 8 and Annex C(1) of the SPS Agreement with regard to only eight of the ten
"relevant product-specific measures". Therefor e, for the purposes of the Panel's conclusions
concerning the claims under Article 8 and Annex C(1) , the term "relevant product-specific measures"
refers to the eight product-specific measures in question. The two excluded measures are those
affecting the approval of Bt-531 cotton and RR-1445 cotton under Regulation 258/97. In relation to
these two measures, the Panel concludes that their existence has not been demonstrated by Argentina.
8.53 For the reasons set forth in this Report, the Panel concludes that:
(a) The European Communities has breached its obligations under Annex C(1)(a), first
clause, of the SPS Agreement and, consequently, its obligations under Article 8 of the
SPS Agreement in respect of the approval procedures concerning:2186
(i) Bt-531 cotton;
(ii) RR-1445 cotton;
(iii) LL soybeans (EC-71);
(iv) NK603 maize;
(v) GA21 maize (EC-78);
(vi) GA21 maize (food); and
(vii) NK603 maize (food).

2186 In respect of the approval procedures conducted under Regulation 258/97 – the procedures
concerning those biotech products which are identified as "food" – the Panel's conclusions apply to the extent
the relevant approval procedure is an SPS measure.

(b) Argentina has not established
 that the European Communities has breached its
obligations under Annex C(1)(a), fi rst clause, and Article 8 of the SPS Agreement in
respect of the approval procedures concerning:
(i) LL soybeans (food).
(c) Argentina has not established that the relevant product-specific measures have
resulted in the European Communities acting in consistently with its obligations under
Annex C(1)(a), second clause, and Article 8 of the SPS Agreement.
(d) Argentina has not established that the relevant product-specific measures have
resulted in the European Communities acting in consistently with its obligations under
Annex C(1)(b) and Article 8 of the SPS Agreement.
(e) Argentina has not established that the relevant product-specific measures have
resulted in the European Communities acting in consistently with its obligations under
Annex C(1)(c) and Article 8 of the SPS Agreement.
(f) Argentina has not established that the relevant product-specific measures have
resulted in the European Communities acting in consistently with its obligations under
Annex C(1)(e) and Article 8 of the SPS Agreement.
(g) The European Communities has not acted inconsistently with its obligations under
Article 5.1 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(h) The European Communities has not acted inconsistently with its obligations under
Article 5.6 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(i) The European Communities has not acted inconsistently with its obligations under
Article 5.5 of the SPS Agreement in respect of any of the relevant product-specific
measures.
(j) Argentina has not established that the European Communities has acted
inconsistently with its obliga tions under Article 2.2 of the SPS Agreement in respect
of any of the relevant product-specific measures.
(k) Argentina has not established that the European Communities has acted
inconsistently with its obligations under Article III:4 of the GATT 1994 in respect of
any of the relevant product-specific measures.
(l) There is no need to rule on Argentina's alternative claims under Articles 5.1.1, 5.1.2,
5.2.1, first part, 5.2.2, 2.1, 2.2 and 12 of the TBT Agreement in respect of any of the
relevant product-specific measures.
8.54 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under

the SPS Agreement in respect of the relevant product-specifi c measures, it must be presumed to have
nullified or impaired benefits accruing to Argentina under that Agreement.
8.55 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the rele vant product-specific measures into conformity
with its obligations under the SPS Agreement. These recommendations do not apply to those of the
relevant product-specific measures which were withdrawn after the Panel was established.
3. EC member State safeguard measures
8.56 The Panel made findings in relation to all six member State safeguard measures challenged by
Argentina (hereafter "the relevant member State safeguard measures").
(a) Austria – T25 maize
8.57 In relation to the Austrian safeguard measure on T25 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The Austrian safeguard measure on T25 maize is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently
 with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on T25 maize, the Eur opean Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.
(b) Austria - Bt-176 maize
8.58 In relation to the Austrian safeguard measure on Bt-176 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The Austrian safeguard measure on Bt-176 maize is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.

(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication,
also acted inconsistently
 with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.
(c) Austria - MON810 maize
8.59 In relation to the Austrian safeguard measure on MON810 maize, and for the reasons set forth
in this Report, the Panel concludes that:
(a) The Austrian safeguard measure on MON810 maize is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Austrian
safeguard measure on MON810 maize, the European Communities has, by
implication, also acted inconsistently with the second and third requirements in
Article 2.2 of the SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.
(d) Germany – Bt-176 maize
8.60 In relation to the German safeguard measure on Bt -176 maize, and for the reasons set forth in
this Report, the Panel concludes that:
(a) The German safeguard measure on Bt-176 maiz e is not based on a risk assessment as
required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the

measure in question, the European Communities has acted inconsistently
 with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the German
safeguard measure on Bt-176 maize, the European Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.
(e) Italy - Bt-11 maize (EC-163), MON810 maize and T25 maize2187
8.61 In relation to the Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize and
T25 maize, and for the reasons set forth in this Report, the Panel concludes that:
(a) The Italian safeguard measure on Bt-11 maize (EC-163), MON810 maize and T25
maize is not based on a risk assessment as required by Article 5.1 of the
SPS Agreement, and it is not consistent with the requirements of Article 5.7 of the
SPS Agreement. Therefore, by maintaining the measure in question, the European
Communities has acted inconsistently
 with its obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, the Italian
safeguard measure on Bt-11 maize (EC- 163), MON810 maize and T25 maize, the
European Communities has, by impli cation, also acted inconsistently with the second
and third requirements in Article 2.2 of the SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.

2187 Unlike the United States and Canada, Argentina di d not challenge the Italian safeguard measure on
MON809 maize.

(f) Luxembourg – Bt-176 maize
8.62 In relation to Luxembourg's safeguard measure on Bt-176 maize, and for the reasons set forth
in this Report, the Panel concludes that:
(a) Luxembourg's safeguard measure on Bt-176 ma ize is not based on a risk assessment
as required by Article 5.1 of the SPS Agreement, and it is not consistent with the
requirements of Article 5.7 of the SPS Agreement. Therefore, by maintaining the
measure in question, the European Communities has acted inconsistently
 with its
obligations under Article 5.1.
(b) By maintaining, inconsistently with Article 5.1 of the SPS Agreement, Luxembourg's
safeguard measure on Bt-176 maize, the Eur opean Communities has, by implication,
also acted inconsistently with the second and third requirements in Article 2.2 of the
SPS Agreement.
(c) There is no need to rule on Argentina's claim under the first requirement of Article
2.2 and under Article 2.3 of the SPS Agreement.
(d) There is no need to rule on Argentina's claims under Articles 5.5 and 5.6 of the
SPS Agreement.
(e) There is no need to rule on Argentina's alternative claims under Articles 2.1, 2.2 and
2.9 of the TBT Agreement.
(f) There is no need to rule on Argentina's claim under Article III:4 of the GATT 1994.
(g) Nullification or impairment of benefits and recommendations
8.63 Article 3.8 of the DSU provides that "[i]n cases where there is an infringement of the
obligations assumed under a covered agreement, the ac tion is considered prima facie to constitute a
case of nullification or impairment". The Europ ean Communities failed to rebut this presumption.
Therefore, to the extent the European Communities has acted inconsistently with its obligations under
the SPS Agreement in respect of the relevant member State safeguard measures, it must be presumed
to have nullified or impaired benefits accruing to Argentina under that Agreement.
8.64 In the light of these conclusions, the Panel recommends that the Dispute Settlement Body
request the European Communities to bring the relevant member State safeguard measures into
conformity with its obligations under the SPS Agreement.