Kiribatia and the EU

EU STATEMENT AT THE REGULAR DSB MEETING – 30 SEPTEMBER 2019

Geneva, 01/10/2019 - 00:00, UNIQUE ID: 191001_3
Local Statements

                                                                                                                                   AS DELIVERED

 

REGULAR DSB MEETING – 30 SEPTEMBER 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.174)


·    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.137)

First Intervention

  • 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 16 September 2019, two draft authorisations for new GM maize were presented for a vote in the Appeal Committee with “no opinion” result. It is now for the Commission to decide on these authorisations. Furthermore, on the same day, a draft authorisation for a new GM maize was presented for a vote in a Member States Committee with “no opinion” result. This measure will now be submitted for a vote in the Appeal Committee on 11 October 2019.
  • 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 referenc 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.

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 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.
  • 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.
  • In relation to the statement of the Group of Chief Scientific Advisors, the EU would like to recall that the Group of Chief Scientific Advisors is an independent group of scientific experts providing scientific advice to the European Commission.
  • There have been many reactions to the judgement of the Court of Justice of the European Union, bringing forward a wide range of different views. The statement to which the United States referred, feeds into on-going discussions on new mutagenesis techniques with all stakeholders. Some stakeholders agree with that statement. However, many others consider that the current legislation is adequate to address the risks from new biotechnology developments.
  • The European Commission has a strong interest in this debate, which should go beyond the regulatory status of new technologies and focus on the way new products could help address societal challenges, such as climate change or reduction of use of pesticides, without negative consequences on health and environment protection.


AGENDA POINT 2: 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.  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.
 

Second intervention

·    The EU recalls that the CDSOA was found in breach of WTO rules for transferring anti-dumping and countervailing duties to the US industry. As long as the redistribution of collected duties continues, the United States will be in breach of Articles 18.1 of the Antidumping Agreement and 32.1 of the SCM Agreement and full implementation will still have to be delivered.

·    Once the transfers of anti-dumping and countervailing duties cease, so will the EU measures.

 

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


•    First, in response to the United States' reference to the Byrd Amendment case, the European Union recalls its statement that the Byrd Amendment dispute has been adjudicated and there are currently no further proceedings pending. This a statement of fact and does not – as the US implies – suggest that the issue of compliance has been adjudicated.

•    Coming to the Airbus case, as in the previous DSB meetings, the US has again implied 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 the 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. As part of that review, the compliance panel held a meeting with the parties and third parties and is assessing the parties’ replies to its questions on compliance of the EU.  

•    We would like to stress once again: 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 4: TURKEY – CERTAIN MEASURES CONCERNING THE PRODUCTION, IMPORTATION AND MARKETING OF PHARMACEUTICAL PRODUCTS


A.    REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE EUROPEAN UNION (WT/DS583/3)

  • We refer to our statement during the previous meeting of the DSB on 15 August 2019.
  • The EU urges Turkey to bring its measures in line with its WTO obligations. To this end, the EU requests for the second time the establishment of a panel to assess fully the measures.
  • Pursuant to Article 6.1 of the DSU, a panel shall be established at today’s meeting of the DSB.

 


AGENDA POINT 5: INDIA – ADDITIONAL DUTIES ON CERTAIN PRODUCTS FROM THE UNITED STATES


1.1.    A.    REQUEST FOR THE ESTABLISHMENT OF A PANEL BY THE UNITED STATES (WT/DS585/2)

·    The DSB has already considered panel requests of the United States that are similar to the one tabled today against India. The EU has spoken in relation to the panel request of the United States that related to the European Union’s suspension of equivalent GATT obligations in response to the undeclared safeguard measures which the US took in support of its steel and aluminium industries. 


·    The EU welcomes the fact that India, like quite a number of other WTO Members, has resorted to its right to suspend equivalent obligations vis-à-vis the United States. 


·    The EU looks forward to defending, before the established panels, its right and the right of other WTO Members to suspend equivalent obligations and to defending the rules-based multilateral trading system.

 

AGENDA POINT 8: KOREA – ANTI-DUMPING DUTIES ON PNEUMATIC VALVES FROM JAPAN

A.    REPORT OF THE APPELLATE BODY (WT/DS504/AB/R AND WT/DS504/AB/R/ADD.1) AND REPORT OF THE PANEL (WT/DS504/R AND WT/DS504/R/ADD.1)


First intervention


•    The AB said in this case that “[a]s soon as price comparisons are made, price comparability necessarily arises as an issue.” The EU agrees that price comparability is an essential element that deserves careful examination in the context of an investigation under the ADA Agreement.


•    In relation to the appeal findings on the panels' terms of reference, the EU agrees with the AB statement that “[s]pecifically, the reference to the phrase "how or why" in certain past disputes does not indicate a standard different from the requirement that a panel request include a "brief summary of the legal basis … sufficient to present the problem clearly" within the meaning of Article 6.2 of the Dispute Settlement Understanding” which was at the heart of the Panel's reasoning.

Second intervention

•    The United States has made certain statements both under this Agenda item and under the previous Agenda item.  The European Union would like to respond in relation to both Agenda items.  Mr. Chairman, we have noted that you introduced these two Agenda items with a reference to Art. 17.14 of the DSU.  Indeed, that Article provides that Appellate Body Reports are adopted by the DSB an unconditionally accepted by the parties.  The only circumstance in which this does not occur is if the DSB decides by consensus not to adopt the Appellate Body Report.  This is not happening today, because the European Union does not and would not join such a consensus.  As China has just mentioned, neither the defending party, nor any other WTO Member, not even the Chairman of the DSB or the WTO Secretariat has the legal authority to prevent this from happening by any means.  Whatever they say, whatever they do, whatever is recorded in the minutes is incapable as a matter of law of negating the observation that what is provided for in Article 17.14 of the DSU has occurred.


AGENDA POINT 9: APPELLATE BODY APPOINTMENTS


First Intervention


•    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 invite all Members to engage constructively in these discussions so that the vacancies could be filled as soon as possible.

Second intervention

•    The United States has raised again the question of "what has allowed the Appellate Body to disregard the rules in the DSU".  On this question, the EU would like to reiterate that we should be having a forward looking discussion and not continuously re-litigate our differences as to the reading of the current rules. And the EU is looking forward to continuing such forward-looking discussion in the informal General Council process.

•    On substance, we refer to our earlier interventions on the respective issues. Our views are well known, but we would be happy to explain our position again as appropriate.


AGENDA POINT 11: CANADA-EUROPEAN UNION INTERIM APPEAL ARBITRATION ARRANGEMENT PURSUANT TO ARTICLE 25 OF THE DSU (JOB/DSB/1/ADD.11)


A. Joint presentation by Canada and the European Union


First intervention of Canada:

·    Thank you Mr. Chair.


·    On July 25, 2019, Canada and the EU notified this interim arrangement pursuant to the Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes (JOB/DSB/1/).


·    To recall, under this Mechanism, Members are invited to circulate, inter alia, documents that indicate their intention to follow, either unilaterally or on a reciprocal basis with other Members, certain practices and procedures in their future disputes (as set out in paragraph 6). Members are also invited, if they so wish, to introduce such documents for discussion during a DSB meeting (as set out in paragraph 8).


·    In the notification filed by Canada and the EU on July 25, Canada and the EU indicate their intention to resort to arbitration under article 25 of the DSU as an interim appeal arbitration procedure in future disputes between Canada and the European Union. The interim nature of this arrangement means that the appeal arbitration procedure would apply only if, and only as long as, the Appellate Body is not able to hear appeals of panel reports due to an insufficient number of its members.


·    Indeed, the interim arrangement has to be seen as a contingency measure prompted by the impasse related to Appellate Body appointments.


·    As a contingency measure, this is not an endorsement or a critique of the status quo.  There are more appropriate vehicles and venues for advancing proposals for reform.


·    As all Members are acutely aware, for the past two years, every month the DSB agenda has featured proposals to launch selection processes for new Appellate Body members. Even though a large number of WTO Members have endorsed these proposals, there is still no consensus in the DSB.


·    As a result, the Appellate Body today has only three members. Unless appointments are made in time, there will soon be only one member left and the Appellate Body will not be able to hear new appeals. This will in turn undermine the entire WTO dispute settlement process.


·    It remains Canada’s and the EU’s clear priority to resolve the Appellate Body impasse. We have made formal proposals to that end and we are actively engaged, and will continue to support, the process led by Facilitator Walker that is aimed at addressing the concerns raised by the US delegation and at the unblocking of the Appellate Body appointments.


·    In the meantime, however, due diligence commands that we prepare arrangements to safeguard our procedural rights in WTO disputes in case the appointments remain blocked despite our best efforts.


·    We invite our colleagues from the EU delegation to continue our joint presentation.

First Intervention of the EU

•    As December 2019 is approaching, WTO Members who have pending disputes or who may have disputes in the future are faced with the question how to manage these disputes if the Appellate Body becomes non-operational.

•    Canada and the EU are committed to a multilateral rules-based trading system, as embodied in the WTO. Within that system, WTO Members are entitled to a third party, binding adjudication of trade disputes and to an independent and impartial appellate review of panel reports.

•    We do not wish to see these rights compromised should the Appellate Body impasse continue.

•    Therefore, with this interim arrangement, we wish to preserve our right to appellate review provided under DSU Article 17 by replicating it as closely as possible within the framework of DSU Article 25.

•    First, the task of the appeal arbitrator will be to review legal issues covered in the panel report, thereby preserving a 2-step system.

•    Second, the procedure will very closely resemble the procedure before the Appellate Body, including as regards the rights of third parties.

•    Third, the appeal arbitrators would be former Appellate Body members, selected randomly by the WTO DG from the pool of available former AB members. Since these persons have been appointed in the past by the WTO Membership and have effectively served as Appellate Body members, this will contribute to the legitimacy and quality of this mechanism. We also envisage that they will receive appropriate administrative and legal support from the Appellate Body Secretariat, just like Appellate Body members.

•    Fourth, under DSU Article 25, the arbitration award will be binding on the parties and enforceable through the DSU’s compliance and sanctions procedures. Therefore, for all practical purposes, it will have the same legal effects between the parties as Appellate Body reports.

•    With this interim arrangement, we also wish to preserve the panel proceedings as much as possible. Only at the very end of the panel proceedings – when the final panel report has been issued to the parties but not yet circulated to the broader WTO membership – a party could trigger the appeal arbitration procedure by suspending the panel proceedings. If neither party appeals under the appeal arbitration procedure, the panel report will be normally circulated and adopted by the DSB.

•    This interim arrangement is of a bilateral nature, i.e. it will only be applicable in disputes between Canada and the EU, should such disputes arise in the future.

•    However, by circulating this arrangement and presenting it today in the DSB, Canada and the EU wished to make it transparent to the entire Membership. Other Members may also be reflecting on possible contingency measures, as we have. In our view, this arrangement constitutes a workable solution and provides a model for other Members who wish to preserve, on an interim basis, a binding, independent and 2- stage dispute settlement process, as envisaged by the WTO Agreements. We also note that the arrangement anticipates procedures for situations in which multiple WTO Members have appeal-arbitration arrangements in place between them and have used those arrangements to initiate appeal-arbitrations related to the same matter.

•    Finally, we wish to recall that, where applicable, other practice documents circulated pursuant to the Statement on a Mechanism for Developing, Documenting and Sharing Practices and Procedures in the Conduct of WTO Disputes (JOB/DSB/1/), and which are endorsed by Canada and the EU, would also apply to the interim appeal arbitration procedure between them. This is the case, in particular, of the practice document on Transparency of Dispute Proceedings (JOB/DSB/1/Add.3), pursuant to which Canada and the EU will request the arbitrator to provide for a series of transparency measures, such as open hearings.

•    We look forward to comments and questions regarding the appeal-arbitration arrangement, from Members here today.


Second intervention of Canada:

·    Thank you for these comments and questions. In reaction to those comments/questions we would like to make the following observations.  I apologize if I repeat elements raised in my previous intervention.


·    The interim arrangement is intended to preserve these rights, to the extent possible, as between Canada and the EU, and on the basis of an existing DSU provision, i.e. Article 25.


·    We do hope that this will be the outcome of the ongoing process led by Ambassador Walker and we will continue engaging constructively in that process. But, in the meantime, it is our right to take contingency measures. We are transparent about the arrangement and we have also made sure that other WTO Members can participate as third parties in appeal arbitration, on the same conditions as those applicable to appellate proceedings.


·    As we have explained, what we are seeking with the interim arrangement is to preserve our WTO rights, pending the resolution of the Appellate Body impasse. A bilateral arrangement is an appropriate vehicle for that purpose as between Canada and the EU. At this point, we see this indeed as a flexible arrangement that could be deployed between any two WTO Members. But we are open to hearing other Members’ views on this matter.


·    Indeed, the interim arrangement has to be seen as a contingency measure prompted by the impasse related to Appellate Body appointments.


·    As a contingency measure, this is not an endorsement or a critique of the status quo.  There are more appropriate vehicles and venues for advancing proposals for reform.


·    We now invite our colleagues from the EU delegation to continue this intervention.

Second Intervention of the EU

•    To conclude, we would like to thank the intervening delegation for their comments and questions.  This discussion confirms that many WTO Members are struggling with the question of how to manage their disputes in case they are affected by the impasse related to the Appellate Body appointments.  The rationale behind the interim arrangement is straightforward:  this is a contingency measure that allows Canada and the European Union to preserve their WTO rights, in potential disputes between them in the context of the Appellate Body impasse.  This includes in particular the right to have their trade disputes resolved through binding adjudication and their right to an appeal.  We have devised a workable solution that preserves these rights on an interim basis.  But, we want to strongly emphasize that we do not pretend that this arrangement can replace a fully functioning dispute settlement system, which includes a standing Appellate Body.  This is why the work towards unblocking the appointments will remain our clear priority.  If delegations are interested in more detail regarding this arrangement, they can conduct us bilaterally.

                                                                                                                                  

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