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If in Doubt, Leave it Out? EU Precaution in WTO Regulatory Space

Published online by Cambridge University Press:  20 January 2017

James Flett
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Abstract

This article reviews the way in which the concept of precaution, as commonly referenced in EU law, is received in the WTO. It argues that precaution is not a principle, but one facet of a principle of making rational judgments based on available information, the other facet of which is “that risk is worth taking”. Systematically pursuing high cost measures in response to low risks is not a balanced approach, and has probably contributed to the scepticism with which the concept is viewed in the WTO. However, this article goes on to argue that, without needing to be a principle, precaution is the determining legal feature in the SPS Agreement, because, unlike in the European Union, there is no legislative harmonisation of SPS measures at international level, WTO Members being free to set their own appropriate level of protection. In fact, the concept of precaution is relevant in the context of many other WTO provisions and is in some respects quite close to the concept of subsidiarity. Notwithstanding this, the first WTO SPS cases, driven by regulatory exporters and an interventionist WTO, have excessively emphasised scientific issues, masking policy judgments that the WTO has neither the legal nor the political authority to sustain. The article concludes that the proper way forward necessitates closer political, legal and administrative links between the WTO and other relevant international organisations, and a move away from consensus in the latter.

Type
Articles
Information
European Journal of Risk Regulation , Volume 1 , Issue 1 , March 2010 , pp. 20 - 30
Copyright
Copyright © Cambridge University Press 2010

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References

1 BBC News, Gummer Enlists Daughter in BSE Fight, 16 May 1990, available on the Internet at http://news.bbc.co.uk (last accessed 1 January 2010).

2 A further nice illustration of the necessarily political or value laden aspect of the process is the position with respect to pests. Thus some poor unfortunate creatures are so classified, the general assumption being that they should be wiped off the face of the planet as bad for business. One does not generally hear anyone sticking up for the pest. And yet, one Member's pest might be a vital part of another Member's critical ecosystem. In other words, the notion of pest is entirely anthropocentric, value laden and thus ‘political’.

3 Case C-180/96 R, United Kingdom of Great Britain and Northern Ireland v Commission of the European Communities, Order of the Court of 12 July 1996 [1996] ECR I-3903.

4 See Failure to Trace Cattle Causes Alarm, Independent, Thursday 20 June 1996.

5 For a relatively recent summary, see Alemanno, Alberto, The Shaping of the Precautionary Principle by European Courts: From Scientific Uncertainty to Legal Certainty, Bocconi Legal Studies Research Paper No. 1007404. Available at SSRN: http://ssrn.com/abstract=1007404 (last accessed 1 January 2010).

6 Article 5.5 of the SPS Agreement indicates the need to “take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves.”. See also Appellate Body Report, EC Measures Concerning Meat and Meat Products (Hormones), WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 1998:I, 135, para. 187; Appellate Body Report, Japan – Taxes on Alcoholic Beverages, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted 1 November 1996, DSR 1996:I, 97, page 31: “WTO rules are reliable, comprehensible and enforceable. WTO rules are not so rigid or so inflexible as not to leave room for reasoned judgments in confronting the endless and ever changing ebb and flow of real facts in real cases in the real world.”

7 Treaty on the Functioning of the European Union, Article 191.

8 Communication from the Commission on the Precautionary Principle, COM(2000)01 final, 2.2.2000.

9 For a recent enthusiastic re-statement of the concept as a “principle”, see de Sadeleer, Nicolas, “The Precautionary Principle as a Device for Greater Environmental Protection: Lessons from EC Courts”, Review of European Community and International Environmental Law (RECIEL), Volume 18, Number 1, April 2009, pp. 3–10 CrossRefGoogle Scholar.

10 BBC News, Six taken ill after drug trials, 15 March 2006, available on the internet at http://news.bbc.co.uk (last accessed 1 January 2010).

11 SPS Agreement, sixth recital, Articles 3.3, 5.6 and Annex A, paragraph 5; Appellate Body Report, United States – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS320/AB/R, adopted 14 November 2008, para. 523; Appellate Body Report, Canada – Continued Suspension of Obligations in the EC – Hormones Dispute, WT/DS321/AB/R, adopted 14 November 2008, paras. 523, 534 and 685; Appellate Body Report, Australia – Measures Affecting Importation of Salmon, WT/ DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, 3327, para. 125. At the same time, the science supporting the measure cannot be non-existent or purely theoretical (Appellate Body Report, EC-Hormones, above n. 6, para. 186).

12 Appellate Body Report, Brazil – Measures Affecting Imports of Retreaded Tyres, WT/DS332/AB/R, adopted 17 December 2007.

13 For a classic formulation, see Case 174/82 Sandoz [1983] ECR 2445, paras. 18 and 19. For a more recent example of deference to the Member State even in the presence of Community legislation, see Case C-389/96 Aher-Waggon GmbH v Bundesrepublik Deutschland [1998] ECR I-4473.

14 EC-Hormones, Australia-Salmon, Japan-Agricultural Products, Japan-Apples, EC-Biotech.

15 Appellate Body Report, US-Continued Suspension; Appellate Body Report, Canada-Continued Suspension, above n. 11.

16 For the time being, the European Union and the United States have concluded a provisional agreement in the Hormones dispute; there are pending disputes in Australia-Apples, US-Poultry, EC-Poultry and Korea-BSE; and there is some discussion about how cloning techniques being developed particularly in the United States will be received in the European Union.

17 See, for example, GATT Panel Report, United States – Trade Measures Affecting Nicaragua, L/6053, 13 October 1986, unadopted.

18 See, for example, Case 13/68 Salgoil [1968] ECR 453; Case 222/84 Johnston [1986] ECR 1651; Case C-273/97 Sirdar [1999] ECR I-7403; Case C-285/98 Kreil [2000] ECR I-69; Case C-414/97 Commission v Spain [1999] I-5585; Case C-414/97 Commission v Spain [1999] ECR I-5585; Case C-61/03 Commission v United Kingdom [2005] ECR I-2477; Case C-459/03 Commission v Ireland [2006] ECR I-4635; Case C-337/05 Commission v Italy [2008] ECR I-2173; Case C-157/06 Commission v Italy [2008] ECR I-7313; Case C-239/06 Commission v Italy, judgment of 15 December 2009 (not yet reported in the ECR).

19 Appellate Body Report, European Communities – Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001, DSR 2001:VII, 3243, para. 178: “In addition, in the context of the SPS Agreement, we have said previously, in European Communities – Hormones, that “responsible and representative governments may act in good faith on the basis of what, at a given time, may be a divergent opinion coming from qualified and respected sources.” (emphasis added) In justifying a measure under Article XX(b) of the GATT 1994, a Member may also rely, in good faith, on scientific sources which, at that time, may represent a divergent, but qualified and respected, opinion. A Member is not obliged, in setting health policy, automatically to follow what, at a given time, may constitute a majority scientific opinion. Therefore, a panel need not, necessarily, reach a decision under Article XX(b) of the GATT 1994 on the basis of the “preponderant” weight of the evidence.” (footnotes omitted).

20 This situation is currently before a panel in the US-Poultry case.

21 See, for example, Appellate Body Report, Brazil – Retreaded Tyres, above n. 12, a dispute in which neither party invoked the SPS Agreement, but in which Brazil's successful defence under Article XX included an attenuated public health concern.

22 Panel Report, EC Measures Concerning Meat and Meat Products Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, as modified by the Appellate Body Report, above n. 6, paras. 8.36 to 8.38. See Marceau, Gabrielle and Trachtman, Joel, “A Map of the WTO Law of Domestic Regulation of Goods”, in Bermann, George and Mavroidis, Petros (eds), Trade and Human Heath and Safety (Cambridge University Press 2006) at p. 20 Google Scholar.

23 Such as calling the supreme court “Appellate Body”; mandatory judgment “reverse consensus”; and the court's rules of procedure an “understanding”.

24 See, for example, Scott, Joanne, The WTO Agreement on Sanitary and Phytosanitary Measures – A Commentary (Oxford: Oxford University Press 2007)Google Scholar, particularly but not only Chapter 2.

25 Interestingly, in a recent case the GATT Article II claim has also been advanced as an additional matter. See Appellate Body Report, United States – Measures Relating to Zeroing and Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan, WT/DS322/AB/RW, adopted 31 August 2009.

26 There are some obvious possible candidates: Articles I and III of the GATT and Article 2.3 of the SPS Agreement (MFN and national treatment); Article X of the GATT and Annex B of the SPS Agreement (transparency); Article XXIII of the GATT and Article 11 of the SPS Agreement (dispute settlement).

27 Appellate Body Report, Japan – Alcoholic Beverages II, above n. 6, at pp. 17 to 18.

28 See Appellate Body Report, EC-Asbestos, above n. 19.

29 For example, the United States did not refute the Article XI claim in GATT Panel Report, United States – Restrictions on Imports of Tuna, DS29/R, 16 June 1994, unadopted, at para. 5.7; nor in Panel Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/R and Corr.1, adopted 6 November 1998, as modified by Appellate Body Report WT/DS58/AB/R, DSR 1998:VII, 2821, at para. 7.13 (there also being no appeal on that point – see Appellate Body Report, United States – Import Prohibition of Certain Shrimp and Shrimp Products, WT/DS58/AB/R, adopted 6 November 1998, DSR 1998:VII, 2755, at para. 34).

30 Appellate Body Report, EC-Asbestos, above n. 19.

31 Thus disagreeing with paras. 5.11 to 5.16 of GATT Panel Report, US-Tuna (Mexico), unadopted, above n. 29; and paras 5.8 to 5.9 of GATT Panel Report, United States – Restrictions on Imports of Tuna, DS29/R, 16 June 1994, unadopted.

32 For a general discussion of these issues, see Hudec, Robert, “The Product-Process Doctrine in GATT/WTO Jurisprudence”, in Bronckers, Marco and Quick, Reinhard (eds), New Directions in International Economic Law (Kluwer Law International 2000) at p. 217 Google Scholar; Howse, Robert and Regan, Donald, “The Product/Process Distinction – An Illusory Basis for Disciplining ‘Unilateralism’ in Trade Policy”, EJIL (2000), Vol. 11 No. 2, 249–289 CrossRefGoogle Scholar; Hudec, Robert, GATT/WTO Constraints on National Regulation: Requiem for an “Aim and Effects” Test, available on the Internet at worldtradelaw.net (last accessed 1 January 2010); Howse, Robert and Tuerk, Elisabeth, “The WTO Impact on Internal Regulations – A Case Study of the Canada-EC Asbestos Dispute”, in Bermann, George and Mavroidis, Petros (eds), Trade in Human Health and Safety (Cambridge: Cambridge University Press 2006), at p. 77 CrossRefGoogle Scholar; Ortino, Federico and Ripinsky, Sergey (eds), WTO Law and Process, The Proceedings of the 2005 and 2006 Annual WTO Conferences, Exceptions to the Rules: Evolving Jurisprudence, at pp. 209–229 Google Scholar.

33 See the literature cited at footnote 32.

34 See, for example, Appellate Body Report, Canada – Measures Affecting the Export of Civilian Aircraft, WT/DS70/AB/R, adopted 20 August 1999, DSR 1999:III, 1377.

35 See, for example, Appellate Body Report, Canada – Certain Measures Affecting the Automotive Industry, WT/DS139/AB/R, WT/DS142/AB/R, adopted 19 June 2000, DSR 2000:VI, 2985.

36 See, for example, Panel Report, European Communities – Countervailing Measures on Dynamic Random Access Memory Chips from Korea, WT/DS299/R, adopted 3 August 2005, DSR 2005:XVIII, 8671.

37 See, for example, Panel Report, EC – Countervailing Measures on DRAM, above n. 36.

38 See, for example, Appellate Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/AB/R, adopted 9 May 2006, and Corr.1, DSR 2006:II, 417.

39 Appellate Body Report, Dominican Republic – Measures Affecting the Importation and Internal Sale of Cigarettes, WT/DS302/ AB/R, adopted 19 May 2005, DSR 2005:XV, 7367.

40 Personally, I do not believe that the problem can be solved by tinkering with the standard of review, a concept that, based on experience, I find to be largely a matter of rhetoric, and in any event incapable of reliably filtering out the political prerogatives of the importing Member when setting its ALOP. For a contrary view, see Button, Catherine, The Power to Protect: Trade, Health and Uncertainty in the WTO (Oxford and Portland: Hart Publishing 2004)Google Scholar.

41 For a more general discussion of these issues, see Grando, Michelle, Proof and Fact Finding in WTO Dispute Settlement (Oxford: Oxford University Press 2009)CrossRefGoogle Scholar.