Delegation of the European Union to Jamaica, Belize, Turks and Caicos Islands, Bahamas and the Cayman Islands

EU Statement at the Regular meeting of the Dispute Settlement Body (DSB), 28 May 2021

Geneva, 31/05/2021 - 00:00, UNIQUE ID: 210531_2
Local Statements

Statement delivered by Ioannis Zervas, Counsellor

AGENDA POINT 1: SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

 

B. UNITED STATES – SECTION 110(5) OF THE US COPYRIGHT ACT: STATUS REPORT BY THE UNITED STATES (WT/DS160/24/ADD.189)

 

  • We thank the United States for its status report and its statement today.
  • We refer to our previous statements. We would like to resolve this case as soon as possible.

 

AGENDA POINT 1: SURVEILLANCE OF IMPLEMENTATION OF RECOMMENDATIONS ADOPTED BY THE DSB

 

C.     EUROPEAN COMMUNITIES – MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS: STATUS REPORT BY THE EUROPEAN UNION (WT/DS291/37/ADD.152)

 

  • The Standing Committee meeting was held on-line on 19 April 2021. The Commission presented one authorisation and one renewal authorisation[1]. The Standing Committee did not reach an opinion. The Commission will present the two authorisation decisions at the on-line meeting of the Appeal Committee on 9 June.
  • In addition, a Standing Committee meeting was held on-line on 17 May 2021. The Commission presented three authorisation and one renewal authorisation[2]. Due to the current public health situation, the vote will take place by written procedure ending ten working days after the date of the meeting concerned.
  • The United States frequently refers to Member States’ justifications issued during the meetings of the Standing Committee and Appeal Committee as being “political” and “not science based”. The EU would like to underline that the final decision taken on the authorisation is clearly science-based as those GMOs are authorised where the European Food Safety Authority has finalised its scientific opinion and concluded that there are no safety concerns.
  • As repeatedly explained by the EU and confirmed by the US delegation during the EU-US consultations held on 22 October 2020, efforts to reduce delays in authorisation procedures are constantly maintained at a high level at all stages of the authorisation procedure.
  • It is also important to recognise the increased transparency in the EFSA’s scientific assessment of GMOs, resulting from the new Transparency Regulation[3], which should help to reinforce trust in the safety of the authorised GMOs.
  • The EU acts in line with its WTO obligations. Finally, we recall that the EU approval system is not covered by the DSB's recommendations and rulings.

Second intervention

  • The WTO Agreements do not require full international harmonisation and leave some regulatory space or autonomy to individual WTO Members. The European Union has different regulatory approaches towards non-GMOs and GMOs but, in all cases, such regulations do not discriminate between imported and domestic like products.
  • No EU Member State has imposed any “ban”. Under the terms of the Directive, an EU Member State can adopt measures restricting or prohibiting cultivation only when such measures are in line with EU law and are reasoned, proportional, non-discriminatory and based on compelling grounds.
  • The free movement of seeds is embedded in Article 22 of Directive 2001/18/EC: ‘Member States may not prohibit, restrict or impede the placing on the market of GMOs, as or in products, which comply with the requirements of this Directive’. We also note that according to the provisions of the opt-out Directive (Article 26b, point 8) the measures adopted under the Directive must ‘not affect the free circulation of authorised GMOs’ in the EU.
  • Currently the EU Common Catalogue of varieties of agricultural species includes 150 varieties of maize MON 810, which are allowed to be marketed in the EU. To date, the Commission has never received any complaints from seed operators or other stakeholders concerning the restriction of marketing of MON810 seeds in the EU. This confirms the smooth functioning of the internal market of MON810 seeds.
  • We would invite the US to provide any evidence they may have at their disposal substantiating the disruption of the free movement of MON810 seeds in the EU.

 

AGENDA POINT 2: UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB

 

  1. STATEMENT BY THE EUROPEAN UNION

First intervention

  • Despite US having repeatedly indicated that the DSB’s recommendations and rulings are fully implemented by adopting the Deficit Reduction Act, disbursements under CDSOA have been made every year since then. Every disbursement that still takes place under this legal basis is clearly an act of non-compliance with DSB recommendations and rulings. For the item to be considered resolved and removed from under the DSB's surveillance, the US must fully stop transferring collected duties.
  • The EU will continue to put this point on the agenda as long as the US has not fully implemented the WTO ruling and the disbursements cease completely. The EU will continue to insist – as a matter of principle – independently of the cost resulting from the application of such limited duties.
  • The EU renews its call on the United States to abide by its clear obligation under Article 21.6 of the DSU to submit implementation reports in this dispute, as the issue remains unresolved. If the US does not agree the issue remains unresolved, nothing prevents the US from seeking a multilateral determination through a compliance panel procedure.

Second Intervention

  • The EU recalls that the CDSOA was found to be in breach of WTO rules for transferring anti-dumping and countervailing duties to US industry, and that the DSB authorised sanctions, on the basis of the US failure to comply with the recommendations and rulings. That situation persists as long as the redistribution of collected duties continues, as most recently shown by the report of the U.S. Customs and Border Protection for the financial year 2020. The circumstances of this case with regard to relevant DSU provisions and procedures are therefore entirely different from those in DS472.

 

AGENDA POINT 3:  EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB

  • The US has again stated that the EU is taking inconsistent positions under Article 21.6 of the DSU, depending on whether the EU is a complaining party or a defending party in a dispute.
  • This US assertion is without merit.
  • As the EU has repeatedly explained in past meetings of the DSB, the crucial point for the defending party’s obligation to provide status reports to the DSB is the stage of the dispute. In the Airbus case, the dispute is at a stage where the defending party does not have an obligation to submit status reports to the DSB.
  • We would like to remind the DSB that in the Airbus case the EU notified a new set of compliance measures to the DSB.
  • That new set of compliance measures were subject to an assessment by a compliance panel and that panel’s report was issued on 2 December 2019. As noted in our statement at the December 2020 meeting of the DSB, the EU is of the view that significant aspects of the compliance panel’s report cannot be regarded as legally correct and are very problematic from a systemic perspective when it comes to assessing compliance with the subsidy disciplines of the WTO agreements. In order to have these legal errors corrected, the EU has filed an appeal against the compliance panel’s report on 6 December 2019.
  • We are concerned that with the current blockage of the two-tier multilateral dispute settlement system, we are losing the possibility of a proper appellate review of the serious flaws contained in the panel report. While the blockage continues, we stand ready to discuss with the US alternative ways to deal with this appeal. We are also committed to finding a balanced negotiated solution with the US that would allow leaving both aircrafts disputes behind us.
  • These considerations do not, however, alter the fact that the compliance proceeding in this dispute has not been concluded.
  • Whether or not the matter is “resolved” in the sense of Article 21.6 remains the very subject matter of this ongoing litigation. How can it be said that the defending party should submit “status reports” to the DSB in these circumstances?
  • The EU would be very concerned with a reading of Article 21.6 of the DSU that would require the defending party to notify the purported “status of its implementation efforts” through the submission of status reports to the DSB, while dispute settlement proceedings on that precise issue are ongoing. The EU notes that its reading of the provision is supported by other WTO Members.
  • The view of the EU is further supported by Article 2 of the DSU on the administration of the dispute settlement rules and procedures: where, further to the disagreement between the parties on compliance, a matter is with the adjudicators, it is temporarily taken out of the DSB’s surveillance.
  • Under Article 21.6 DSU, the issue of implementation is to remain on the DSB’s agenda until the issue is resolved. In the Byrd Amendment case, the EU does not agree with the assertion by the US that it has implemented the DSB recommendations and rulings. This means that the issue remains unresolved for the purposes of Article 21.6 DSU. If the US does not agree that the issue remains unresolved, nothing prevents it from seeking a multilateral determination through a compliance procedure, just like the EU is doing in the Airbus case.

Second intervention

  • With regard to the additional Repayable Launch Investments not covered by the EU notification that were mentioned by the US, the EU reiterates its position as expressed earlier, that the compliance proceeding in this dispute has not been concluded due to the current blockage of the two-tier multilateral dispute settlement system.
  • Moreover, some of the measures mentioned by the US have actually been amended and the EU has fully explained this to United States.
  • Finally, it must be noted that the other contested measures relates to the Repayable Launch Investment for the development of the A380 aircraft model. It is well known that Airbus decided already in 2019 to completely wind down the A380 programme. The last Airbus 380 rolled out the production line in Toulouse in September 2020. The production line is closed and employees have been moved to other operations. The A380 RLI therefore cannot cause any more adverse effects on the US.

 

AGENDA POINT 5:  EUROPEAN UNION AND CERTAIN MEMBER STATES – CERTAIN MEASURES ON PALM OIL AND OIL PALM CROP-BASED BIOFUELS

 

  1. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY MALAYSIA (DS600)
  • The European Union regrets Malaysia's decision to request a WTO panel on certain measures, concerning palm oil and oil palm crop-based biofuels from Malaysia, adopted by the European Union and certain Member States.
  • Malaysia is of course entitled to bring this matter to dispute settlement in the WTO, but the European Union firmly believes that the measures at stake are fully justified.
  • For these reasons, the European Union is confident that it will prevail in this dispute, and that its actions will be declared in line with the rules of the WTO. 
  • The EU stands ready to discuss with Malaysia reciprocal interim arrangements that would preserve the availability of appeal review in this and other disputes on the basis of Article 25 of the DSU, as long as the Appellate Body is not functioning, such as through the Multi-party interim appeal arbitration arrangement (known as the MPIA).

AGENDA POINT 6: APPELLATE BODY APPOINTMENTS

  • The European Union refers to its previous statements on this issue.
  • Since 11 December 2019, the WTO no longer guarantees access to a binding, two-tier, independent and impartial resolution of trade disputes.
  • A fully functioning WTO dispute settlement system is critical for a rules-based multilateral trading system.
  • This is why the most urgent area of WTO reform involves finding an agreed basis to restore such a system and proceeding to the appointment of the members of the Appellate Body. This task should be addressed as a priority.
  • As we have consistently noted, WTO Members have a shared responsibility to resolve this issue as soon as possible, and to fill the outstanding vacancies as required by Article 17.2 of the DSU.
  • The EU agrees that a meaningful reform is needed in order to achieve this objective.
  • The EU therefore renews its call on all WTO Members to engage in a constructive discussion as soon as possible in order to restore a fully functioning WTO dispute settlement system.
  • We thank all Members that have co-sponsored the proposal to launch the appointment processes.

 

 

[1]             Meeting of 19 April 2021: authorisation of oilseed rape Ms8xRf3xGT73 and subcombinations for food and feed (except isolated seed protein for food) and renewal authorisation of GT73 for feed.

[2]             Meeting of 17 May 2021: authorisation for food and feed of soybean DAS-81419-2, soybean DAS-81419-2 × DAS–44406–6, maize 1507 × MIR162 × MON810 × NK603  and subcombinations; and renewal authorisation of maize Bt 11 for food and feed.

[3]             Regulation (EU) 2019/1381 of the European Parliament and of the Council of 20 June 2019 on the transparency and sustainability of the EU risk assessment in the food chain and amending Regulations (EC) No 178/2002, (EC) No 1829/2003, (EC) No 1831/2003, (EC) No 2065/2003, (EC) No 1935/2004, (EC) No 1331/2008, (EC) No 1107/2009, (EU) 2015/2283 and Directive 2001/18/EC (OJ L 231, 6.9.2019, p. 1-28).

 

 

 

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