PPMs, the EC-Biotech Dispute and Applicability of the SPS Agreement: Are the Panel's Findings Built on Shaky Ground?

Abstract

Despite striking similarities between processes and production methods (PPMs) and genetic engineering, the EC-Biotech panel report is silent on the points of contention raised in the debate on PPMs. The reason is that in EC-Biotech, the panel decided the dispute based on the SPS Agreement, and not based on the GATT or the TBT Agreement. This decision, if not revoked, may well pre-determine the lines of reasoning along which future disputes on national regulations of biotech products will be decided. In this paper, the author critically analyzes the panel's arguments for applying the SPS Agreement. She detects three fundamental concerns: a) the panel interprets the scope of the SPS Agreement in an overly broad manner; b) it fails to address that the contested measures differ considerably from those in previous SPS disputes, and c) it omits exploring the full meaning of environmental protection and biodiversity. Given these doubts about the applicability of the SPS Agreement to regulations of biotech products, the author sets forth the argument that in this particular situation the rule of the minimum of obligations should be applied. With this rule, it can be determined whether the definitions of SPS measures, which in turn decide on the scope of the SPS Agreement, should be interpreted in a broad or rather a narrow manner. Methodologically, the rule requires a comparison of the substantive disciplines on regulations of biotech products contained in different WTO agreements. The author concludes that given the ambiguity of the scope of the SPS Agreement with respect to measures on biotech products, the agreement with softer disciplines provides a more solid legal basis for decisions in respective international disputes.