REGULAR DSB MEETING – 28 OCTOBER 2019
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.175)
· 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.138)
- The EU continues to progress with the authorisations 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 biannual consultations held on 12 June 2019, efforts to reduce delays in authorisation procedures are constantly maintained at a high level. This has resulted in a clear improvement of the situation. It is also important to note that the slow reaction of applicants in certain applications also increases the overall average time needed for risk assessment.
- On 11 October, a draft authorisation for new GM maize was presented for a vote in the Appeal Committee with “no opinion” result. It is now for the Commission to decide on this authorisation.
- During the last meetings of the DSB, the United States referred to what is known as the EU “opt-out Directive”. We would like to reiterate that the DSB recommendations and rulings do not cover that “opt-out Directive”.
- During the past meetings of the DSB, the United States made certain references to the statement by the EU Group of Scientific Advisors. We would like to clarify that this statement focuses on the future challenges for products obtained by new mutagenesis techniques. The statement does not state nor imply that Directive 2001/18 would not be “fit for purpose” as regards “conventional 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.
- 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 to 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 ‘shall 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. Until today, 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.
AGENDA POINT 3: UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
A. STATEMENT BY THE EUROPEAN UNION
• The EU requests once again that the United States stops transferring antidumping and countervailing duties to the US industry. Even if the amounts have considerably decreased, the latest CDSOA report from December 2018 still shows that amounts are still being in practice disbursed.
• Every disbursement that still takes place is clearly an act of non-compliance with DSB recommendations and rulings. As long as the US does not fully stop transferring collected duties, the item is rightly under the DSB's surveillance. Due to the long standing nature of this breach, the EU will continue to insist –as a matter of principle – independent 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.
• 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.
AGENDA POINT 4: EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
• The US has expressly 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. The US assertion remains 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 to the WTO a new set of measures in a compliance communication which was tabled at the DSB meeting of 28 May 2018. The US responded that the measures included in that communication do not bring the EU in full compliance with DSB recommendations and rulings.
• In light of the US position, on 29 May 2018 the EU requested consultations with the United States, under Articles 4 and 21.5 of the DSU. These consultations failed to resolve the dispute. Consequently, the EU asked for the establishment of a compliance panel. The compliance panel was established by the DSB on 27 August 2018.
• That compliance panel is currently reviewing “the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings” of the DSB.
• Therefore, there is a compliance proceeding still on-going in this dispute. Whether or not the matter is “resolved” in the sense of Article 21.6 is 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 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.
AGENDA POINT 6: INDIA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES
A. REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS585/2)
- The EU has spoken in relation to the first panel request of the United States in this case concerning India at the last DSB meeting of 30 September. The EU also touched upon the same overall subject multiple times over the past year in connection to panel requests submitted by the US in relation to other WTO Members than India and their respective suspensions of concessions in response to the US safeguard measures on steel and aluminium.
- In reaction to the US statement at the last DSB meeting held on 30 September, the EU would stress that the United States remains wrong in suggesting that Article XIX GATT and the Safeguards Agreement are not relevant to the US actions under Section 232 and that those actions, as national security actions, are fully justified under Article XXI of the GATT. The EU insists that the US measures objectively speaking are safeguards and that other WTO Members therefore have the right to suspend GATT obligations.
- The EU looks forward to continuing to defend, before the established panels, its right and the right of other WTO Members, including India, to suspend equivalent obligations. The EU likewise feels committed to thereby keep defending the rules-based multilateral trading system.
AGENDA POINT 9: APPELLATE BODY APPOINTMENTS
- The European Union refers to its statements on this issue in previous meetings, starting in February 2017.
- 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. We thank all Members that have co-sponsored the proposal to launch the appointment processes. We invite all other Members to endorse this proposal.
- We also wish to recall that concrete proposals have been submitted to the General Council with a view to unblocking the Appellate Body appointments. We very much welcome the report and the draft General Council decision presented by Ambassador Walker to the General Council on 15 October 2019. We think that this is a sound and balanced way to move the process forward towards its objective, which is to unblock the appointments. We invite all Members to engage constructively in these discussions so that the vacancies could be filled as soon as possible.