The European Commission's Regulations for Genetically Modified Organisms and the Current WTO Dispute - Human Health or Environmental Measures? Why the Deliberate Release Directive is More Appropriately Adjudicated in the WTO Under the Tbt Agreement

Abstract

Even before the recent dispute in the World Trade Organization (WTO), much had been written on the European Commission's (EC) ever-evolving framework for regulation of genetically modified organisms (GMOs) and its compliance with WTO requirements. However, since the CPB also considers both necessary in risk assessments concerning GMOs, it is clear that it is difficult to protect against one category of risks (threats to human health) without also protecting against the other (threats to the environment). The fact that the Deliberate Release Directive puts such a heavy emphasis on implementing the CPB indicates that the focus of the directive is human health and the environment. However, since the Deliberate Release Directive requires compliance with the CPB, and the CPB is concerned with more than food safety, it can be reasoned the Deliberate Release Directive is de facto concerned with more than food safety. If a Member uses an international standard as a basis for its own technical regulation, the Member enjoys a rebuttable presumption that the technical regulation does not create an unnecessary obstacle to international trade. However, if the moratorium or the Deliberate Release Directive is deemed to be inconsistent with Article III(4) of the GATT, it could still be justified either under Article XX(a) or (b) of the GATT, exemptions for public morals or protecting human health.

Keywords: GMO, WTO, TBT Agreement, SPS Agreement, Genetically, Modified, Trade, Environment

JEL Classification: F10, F13, K32, N5