EU Statements at the Dispute Settlement Body (DSB) meeting, 25 January 2022
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.198)
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.161)
The EU and the United States held another biotech dialogue last month. The EU considers this dialogue to be a useful forum to exchange information on biotech-related issues. During this meeting, the EU provided detailed updates on several priority applications, indicated by the U.S. The updates show that, on average, 85% of the time from validation of the application dossier to adoption of the scientific opinion is used by the applicants.
The United States frequently refers to products that have successfully passed EFSA’s risk assessment, but not yet received final approval through comitology. The EU would like to point out that there are administrative procedures between the publication of EFSA’s favourable opinion and the comitology vote that have to be respected. These include, among others, procedures related to transparency, such as a one-month public consultation period. The EU fails to see how these procedures can be characterised as ‘undue delay’. During the recent biotech dialogue, these procedures and the corresponding timelines were explained to the United States.
The European Union acts in line with its WTO obligations. We recall that the EU approval system is not covered by the DSB’s recommendations and rulings.
To update the WTO Membership concerning the progress of the applications throughout the authorisation process, we note the following:
First, the written procedure on the vote on the draft decision authorising two GMOs: GM oilseed rape 73496 and GM cotton GHB811 (which was presented at the online Standing Committee meeting of 17 December 2021) resulted in “no opinion”. The draft decision will be referred to the Appeal Committee in February.
Secondly, the Standing Committee meeting was held on-line on 20 January 2022. The Commission presented a draft decision authorising soybean GMB151. The vote on this draft decision is taking place by means of written procedures.
Thirdly, the Appeal Committee meeting was held on-line on 20 January 2022. The Commission referred a draft decision renewing GM cotton GHB614[1]. The vote on this draft decision is taking place by means of written procedure.
AGENDA POINT 2: UNITED STATES – ANTI-DUMPING AND COUNTERVAILING DUTIES ON RIPE OLIVES FROM SPAIN
- IMPLEMENTATION OF THE RECOMMENDATIONS OF THE DSB
The EU welcomes the statement of the U.S. indicating its intention to comply and we are ready to discuss a reasonable period of time in which to do so.
The EU recalls that the panel report substantially upheld the EU’s claims and largely confirmed that in the anti-subsidy duties imposed by the U.S. on ripe olives from Spain, the U.S. acted inconsistently with the WTO agreement on Subsidies and Countervailing Measures (ASCM).
The panel report found that the U.S. did not comply with its obligation in the determination of de jure specificity and in the calculation of the subsidy benefit for one specific EU company.
The panel report also found that Section 771B of the Tariff Act of 1930, which presumes that the entire benefit of a subsidy provided in respect of a raw agricultural product passes through to the downstream processed agricultural product, is ‘as such’ inconsistent with the ASCM and that the application of Section 771B in the ripe olive investigation was also inconsistent with the ASCM.
AGENDA POINT 3: UNITED STATES – CONTINUED DUMPING AND SUBSIDY OFFSET ACT OF 2000: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
- STATEMENT BY THE EUROPEAN UNION
The European Union refers to all of its previous statements made under this agenda item.
We understand that the United States is prepared to provide a number of clarifications today in this forum.
Second intervention
We would like to thank the United States for its statement. As well as providing the DSB today with greater transparency, this statement complements useful clarifications that the EU has received from the United States in recent months regarding progress on disbursements.
The European Union remains of the view that, as long as distributions continue in connection with the Continued Dumping and Subsidy Offset Act of 2000, full compliance has not yet been achieved and the matter is not yet resolved within the meaning of Article 21.6 of the DSU.
However, we are now satisfied that this should eventually be achieved on the basis of the measures currently in place. While it may still take some time for such distributions to come to an end, the total outstanding amount of these distributions has already fallen significantly and it continues to fall. And we understand that – barring an unforeseen change in circumstances – it is destined to reduce towards zero.
Therefore, in the current circumstances and in the light of the clarifications that the United States has provided to the DSB today, unless there were to be a material change in circumstances, the EU does not consider it necessary to continue to request that this dispute be placed on the agenda of DSB regular meetings in the future.
This is without prejudice to the EU’s positions in this dispute (including on the issue of submission of status reports) or on WTO dispute settlement more broadly, or to the EU’s rights in any WTO dispute.
AGENDA POINT 4: EUROPEAN COMMUNITIES AND CERTAIN MEMBER STATES – MEASURES AFFECTING TRADE IN LARGE CIVIL AIRCRAFT: IMPLEMENTATION OF THE RECOMMENDATIONS ADOPTED BY THE DSB
- STATEMENT BY THE UNITED STATES
The European Union refers to its previous statements made under this agenda item.
We thank the United States for its statement today. It is a reflection of the positive dynamic established between the two sides by last June’s ‘Understanding on a cooperative framework for Large Civil Aircraft’.
As well as allowing each side to suspend the application of its countermeasures for five years, that understanding offers, among other things, a useful channel for the discussion and resolution of any concern raised by either side relating to the matters covered.
AGENDA POINT 6: STATEMENTS BY BRAZIL, AUSTRALIA AND GUATEMALA REGARDING THE PANEL REPORTS IN THE DISPUTES: "INDIA - MEASURES CONCERNING SUGAR AND SUGARCANE" (DS579, DS580 AND DS581)
This is yet another dispute that illustrates the grave consequences of the blockage of Appellate Body appointments since 2017. That blockage frustrates the essential rights of Members that were agreed multilaterally in the DSU.
In that regard, the EU refers to its previous interventions on this topic, and in particular to its interventions made under point 6 of the DSB meeting of 28 September 2020 and under point 7 of the DSB meeting of 27 September 2021, where we elaborated on these consequences and on the possibility of appeals being adjudicated upon through appeal arbitration based on Article 25 of the DSU, consistently with the principles of the DSU. We will not repeat these points today.
AGENDA POINT 7: 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] The draft decision was presented at the Standing Committee on 17 November 2021 and voted afterwards by written procedure.