¹ E.g., outcrossing and “superweeds” due to pesticide resistance.Google Scholar

² E.g., antibiotic resistance, allergens, and general potential long-term effects.Google Scholar

³ E.g., through interfering with nature or taking/imposing unnecessary risks versus the possibility of developing crops suitable for climates where conventional crops are incapable of being grown in famine ridden countries.Google Scholar

⁴ Of both producers and consumers, e.g., whether there is a veritable possibility to have a choice between GM and truly non-GM crops/products, considering issues of admixture.Google Scholar

⁵ Of producers and States, where for instance there is a valuable market for organic products.Google Scholar

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⁸ This issue fell within the scope of Regulation 258/97/EC concerning novel foods and novel food ingredients, 1997 OJ (L 43) 1 where the concept of “substantial equivalence” applied.Google Scholar

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¹¹ Denmark, France, Greece, Italy and Luxembourg declared at the Council meeting of 24/25 June 1999 that they would ‘take steps to have any new authorisations for growing and placing on the market suspended', until their concerns over risk assessments, traceability and labelling were resolved through new legislation. Europa Press Release: 2194^th Council Meeting-Environment-Luxembourg, 24/25 June 1999, 9409/99, No. 203, available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/envir/ACF5B.htm (accessed Dec. 8, 2010). At the same meeting, Austria, Belgium, Finland, Germany, the Netherlands, Spain and Sweden all declared their concerns, and a quasi temporary moratorium pending assurances of safety. Both groups noted public concerns, transparency and the precautionary principle as motivations for their Declarations. Ian Sheldon, Europe's Regulation of Agricultural Biotechnology: Precaution or Trade Distortion? 2 J. Agric. & Food Indus. Org. 1 (2004); and Elsa Tsioumani, Genetically Modified Organisms in the EU: Public attitudes and Regulatory Developments, 13 RECIEL 279 (2004).Google Scholar

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¹³ The Panel found that the de facto moratorium, the substantial delays in authorization and the national bans were all in breach of certain provisions: Section VIII Conclusions and Recommendations of the Panel's Report ibid.Google Scholar

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¹⁵ Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, 2001 OJ (L 106) 1.Google Scholar

** 16 Regulation 1829/2003/EC of the European Parliament and of the Council of 22 September 2003 on genetically modified food and feed, 2003 OJ (L 268) 1.Google Scholar

¹⁷ Regulation (EC) No 1830/2003 of the European Parliament and of the Council of 22 September 2003 concerning the traceability and labelling of genetically modified organisms and the traceability of food and feed products produced from genetically modified organisms and amending Directive 2001/18/EC, 2003 OJ (L 268) 24.Google Scholar

¹⁸ Commission Decision 2002/623/EC establishing guidance notes supplementing Annex II to Directive 2001/18/EC of the European Parliament and of the Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, 2002 OJ (L 200) 22.Google Scholar

¹⁹ The last two were to be protected through the combined means of labelling and coexistence: Justo Corti-Varela, Coexistence of Genetically Modified, Conventional and Organic Products in the European Market: State of the Art Report, 1 Eur. J. Risk Reg. 63, 65 (2010).Google Scholar

²⁰ EU's Press Release, Questions and Answers on the EU's new approach to the cultivation of GMOs, Brussels, 13th July 2010, MEMO/10/325, available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/325&format=HTML&aged=0&language=EN&guiLanguage=en (accessed Dec. 8, 2010. See also GMO Free Europe 2010, GE Cultivation Bans in Europe, available at http://www.gmo-free-regions.org/gmo-free-regions/bans.html (accessed Dec. 8, 2010). The usual list of safeguard measures is currently unavailable on the Commission's website due to restructuring.Google Scholar

²¹ A number of Member States have already banned the cultivation of Amflora Potato since its EU authorization in March 2010. Commission Communication on the freedom for Member States to decide on the cultivation of genetically modified crops, COM (2010) 380 final (Jul. 13, 2010).Google Scholar

²² EU move to break GM deadlock could sow discord, EurActiv with Reuters (June 30, 2010), http://www.euractiv.com/en/eu-move-break-gm-deadlock-could-sow-discord-news-495753.Google Scholar

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²⁵ Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC, 2001 OJ (L 106) 1.Google Scholar

²⁶ Due to the principle of supremacy (e.g. Costa v ENEL, 1964 E.C.R. 585) and duty of loyal or sincere cooperation (to be found in ex Article 10 EC Treaty and in Article 4 Treaty on the EU).Google Scholar

²⁷ Under Article 260 TFEU. In Case C-121/07, Commission of the European Communities v. France 2008 E.C.R. I-9159, the Court imposed a fine upon France for failure to implement Directive 2001/18 (n15).Google Scholar

²⁸ Joined Cases C-6/90 and C-9/90 Francovich v Italy, 1991 E.C.R. I-5357.Google Scholar

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³⁰ Commission Recommendation 2003/556/EC on guidelines for the development of national strategies and best practices to ensure the coexistence of genetically modified crops with conventional and organic farming, 2003 OJ (L 189) 36, and the 2010 Recommendation (n23).Google Scholar

³¹ Decision 2005/463/EC, 2005 OJ (L 164) 50.Google Scholar

³² Maria Lee, Multi-Level Governance of GMOs in the EU: ambiguity and hierarchy, in The Regulation of GMOs: Comparative Approaches (L. Bodiguel & M. Cardwell, eds. 2010).Google Scholar

³³ Directive 2001/18, supra note 15, art. 22.Google Scholar

³⁴ Corti-Varela, supra note 19, at 64.Google Scholar

³⁵ “Appropriate measures” may be taken by Member States via Article 26a of Directive 2001/18 as inserted by Regulation 1829/2003. On preferences to competing agri-types, see Levidow, Les & Boschert, Karin, Coexistence or contradiction? GM crops versus alternative agricultures in Europe?, 39 Geoforum 174, 174, 181, 187 (2008).Google Scholar

³⁶ Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora 1992 OJ (L 206) 7. On the relevance of conservation Directives to managing authorized GM crops see: Commission Staff Working Document, Parl. Eur. Doc. (SEC 313) (2006), annexed to the Commission Report on the implementation of national measures on the coexistence of genetically modified crops with conventional and organic farming, (COM 104) (2006).Google Scholar

³⁷ Regulation 178/2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety [2002] OJ L 31/1.Google Scholar

³⁸ Paul Craig, EU Administrative Law 156 (2010).Google Scholar

³⁹ For example, Article 16 in the 1990 GMO Directive, supra note 7, Article 23 in the Deliberate Release Directive 2001/18, supra note 25, and Article 34 in Regulation 1829/2003, supra note 16.Google Scholar

⁴⁰ Council Directive 2002/53/EC of 13 June 2002 on the common catalogue of varieties of agricultural plant species, 2002 OJ (L 193) 1. E.g. Commission Decision 2006/10/EC of 10 January 2006 concerning the provisional prohibition in Greece of the marketing of seeds of maize hybrids with the genetic modification MON 810 inscribed in the common catalogue of varieties of agricultural plant species, pursuant to Directive 2002/53/EC, 2006 OJ (L 7) 27.Google Scholar

⁴¹ Directive 2001/18, supra note 15, art. 23.Google Scholar

⁴² See note 20, supra.Google Scholar

⁴³ Commission Proposals to compel Member States to remove safeguard measures as unjustified: (COM 161) (2005), (COM 162) (2005), (COM 164) (2005), (COM 165) (2005), (COM 166) 2005, (COM 167) (2005), (COM 168) (2005), (COM 169) (2005), (COM 509) (2006), (COM 510) (2006), (COM 713)(2006), (COM 586) (2007), (COM 589) (2007), (COM 12) (2009), (COM 51) (2009), and (COM 56) (2009).Google Scholar

⁴⁴ E.g., Scientific Opinion of the Panel on Genetically Modified Organisms on a request from the European Commission related to the safeguard clause invoked by Austria on oilseed rape MS8, RF3 and MS8xRF3 according to Article 23 of Directive 2001/18/EC, 2009 EFSA J. 1153. In addition, see the list of questions referenced by Corti-Varela, supra note 19, at n. 8.Google Scholar

⁴⁵ Case C-6/99, Association Greenpeace France and Others v Ministère de l'Agriculture et de la Pěche and Others, 2000 E.C.R. I-1651, para. 44, where the Court ruled that Directive 90/220 dealt with environmental and human health risks in compliance with the precautionary principle via inter alia the safeguard clause in its Article 16 and the risk assessment procedure.Google Scholar

⁴⁶ It has been present within the Environmental Title since the Maastricht Treaty, 1992. A high level of environmental protection is to be achieved in accordance with a number of principles including the precautionary principle.Google Scholar

⁴⁷ E.g., Joined Cases T-74/00, T-76/00, T-83/00, T-84/00, T-85/00, T-132/00, T-137/00, & T-141/00, Artegodan GmbH v. Commission, 2002 E.C.R. 11–4945, para. 184; Case C-132/03, Ministero della Salute v Coordinamento delle Associazioni per la Difesa dell'Ambiente e dei Diritti degli Utenti e dei Consumatori (Codacons), 2005 E.C.R. I-4167, para. 35 (“That interpretation of Community law is compelling not only because it reflects the logic of the system but also on account of the precautionary principle, a general principle of Community law, which demands the best possible information.”). On general principles of law, in the context of the EU, see Tridimas, Takis, The General Principles of EU Law (2d ed. 2007).Google Scholar

⁴⁸ E.g., Artegodan, supra note 47, at para. 184, 186.Google Scholar

⁴⁹ As the Council block actions by the Commission to lift these prohibitions-outlined in following paragraph.Google Scholar

⁵⁰ Comm'n v. France, supra note 27.Google Scholar

⁵¹ In particular Article 16 of Decree 2007-359 and its relationship with L535-2 and L533-6 of the Code de l'Environnement (since repealed by Article 14 of Loi n 2008-595 du juin 2008 relative aux organismes génétiquement modifies JORF 26/6/08, p.10218, http://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000019066077&dateTexte= (accessed 8 December 2010). Google Scholar

⁵² Comm'n v. France, supra note 27, Advocate General's Opinion, at para. 44.Google Scholar

⁵³ By the time of the CJEU's Judgment, France had made major steps in implementation and were also near to promulgating Loi n 2008-595 du juin 2008 (n49) which would implement Directive 2001/18 fully.Google Scholar

⁵⁴ Comm'n v. France, supra note 27, at para. 85.Google Scholar

⁵⁵ GMOs in a Nutshell, supra note 10.Google Scholar

⁵⁶ Article 5 of Council Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, 1999 OJ (L 184) 23, as amended by Council Decision 2006/512/EC amending Decision 1999/468/EC laying down the procedures for the exercise of implementing powers conferred on the Commission, 2006 OJ (L 200) 11.Google Scholar

⁵⁷ Commission Decision 2008/495/EC concerning the provisional prohibition of the use and sale in Austria of genetically modified maize (Zea mays L. line MON810) pursuant to Directive 2001/18/EC of the European Parliament and of the Council, 2008 OJ (L 172) 25. It details the Council's previous refusal to take action, as well as the Commission's decision to propose action only on food and feed.Google Scholar

⁵⁸ Id. Google Scholar

⁵⁹ Member States may also maintain measures via Article 114 (4) TFEU, where necessary to protect the environment, working environment or those objectives within Article 36 TFEU. The restrictions of ‘specificity’ and new scientific evidence’ on Article 114 (5) TFEU are not imposed here, however limitations still apply and the provision is less relevant to the issue of GMOs.Google Scholar

⁶⁰ Consequently health protection is excluded, as are the other concerns of Member States.Google Scholar

⁶¹ Therefore, as highlighted by the Advocate General Sharpston in her opinion of 15 May 2007 in C-439/05, Land Oberösterreich and Austria v Commission, 2007 E.C.R. I-07141, para. 139, the Member State must fulfil 5 conditions cumulatively: ‘i) new evidence must be presented, (ii) the evidence must be scientific, (iii) it must relate to protection of the environment or the working environment, (iv) there must be a problem specific to the Member State, and (v) the problem must have arisen after the adoption of the harmonising measure.'Google Scholar

⁶² See Ludwig Krämer, EC Environmental Law (6th ed. 2007); N. de Sadeleer, Procedures for Derogations from the Principle of Approximation of Laws under Article 95 EC, 40 Common Mkt. L. Rev. 889 (2003); F.M. Fleurke, What Use for Article 95 (5)? An Analysis of Land Oberösterreich and Republic of Austria v Commission, 20 J. Envntl. L. 267 (2008).Google Scholar

⁶³ E.g., Commission Decision 2003/653/EC relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty, 2003 OJ (L 230) 34. Article 95(5) EC was renumbered as Article 114 (5) TFEU following the Lisbon Treaty.Google Scholar

⁶⁴ Reviews/reassessments were insufficient in Opinion of the Scientific Panel on Genetically Modified Organisms on a question from the Commission related to the Austrian notification of national legislation governing GMOs under Article 95(5) of the Treaty, 2003 EFSA J. 1.CrossRefGoogle Scholar

⁶⁵ The General Court upheld the European Food Safety Authority's interpretation in Joined Cases T-366/03 and T-235/04, Land Oberösterreich and Republic of Austria v Commission, 2005 E.C.R. II-4005.Google Scholar

⁶⁶ Decision 2003/653/EC, supra note 63; Sheldon, supra note 11; Fleurke, supra note 62. However it should be highlighted that Advocate General Sharpston in Land Oberösterreich, supra note 61, at para. 142, indicated that a new analysis of original data could lead to new conclusions which could constitute new evidence. Further the Advocate General stated that if the problem was latent and the Member State only became aware of the problem since the harmonising measure, this could fulfil the requirement that the problem arise only since the harmonising measure. However Austria failed to establish that these two requirements were fulfilled on the facts. The CJEU did not comment on this issue as for the purposes of the appeal it was only necessary to establish if the Commission and GCEU had correctly assessed the requirement of a ‘specific problem', as if this requirement was not fulfilled by a Member State, then they would not be able to justify the national measures under Article 114(5) TFEU.Google Scholar

⁶⁷ The General Court in Land Oberösterreich, supra note 65, at para. 65–67, referred to the necessity of the unique or unusual character of the State's problem. However the CJEU, supra note 61 at para. 65–67, clarified that specificity was broader than uniqueness, although what it entails exactly is still unclear.Google Scholar

⁶⁸ The CJEU recently side-stepped an opportunity to expand the concept; see supra note 66.Google Scholar

⁶⁹ Scientific Opinion on a question from the European Commission related to the notification by Portugal, pursuant to Article 95 (5) of the EC Treaty, for the prohibition of cultivation of Genetically Modified Plants in the Autonomous Region of Madeira, 2010 EFSA J. 1500.Google Scholar

⁷⁰ James Kanter, E.U. Signals Big Shift on Genetically Modified Crops, N.Y. Times, May 9, 2010, available at http://www.nytimes.com/2010/05/10/business/energy-environment/10green.html. The author refers to a memorandum by the Commission stating that the Commission did not want to add to the confusion at the time.Google Scholar

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⁷³ Commission Decision 2009/828/EC relating to the draft Regional Legislative Decree declaring the Autonomous Region of Madeira to be an Area Free of Genetically Modified Organisms, notified by the Republic of Portugal pursuant to Article 95(5) of the EC Treaty, 2009 OJ (L 294) 16.Google Scholar

⁷⁴ Senden, L., Soft Law in European Community Law (2004). For a common definition see Snyder, Francis, The Effectiveness of European Community Law: Institutions, Processes, Tools and Technique, 56 Modern L. Rev. 19, 32 (1993) (“rules of conduct which, in principle, have no legally binding force but which nevertheless have practical effects”). Oana Stefan, European Competition Soft Law in European Courts: A Matter of Hard Principles?, 14 Eur. L.J. 753 (2008), provides for an extension to Snyder's definition to include legal effects also.Google Scholar

⁷⁵ 2003 Coexistence Recommendation, supra note 30.Google Scholar

⁷⁶ See supra note 35.Google Scholar

⁷⁷ (COM 380 final) (2010), supra note 21; and Recital 7 of the 2010 Coexistence Recommendation, supra note 23.Google Scholar

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⁸⁰ See supra note 30.Google Scholar

⁸¹ 2010 Coexistence Recommendation, supra note 23, Guidelines, Section 1.1.Google Scholar

⁸² This was also seen in the Communication on the European Action Plan for Organic Food and Farming (COM 415) (2004) at Section 1.4 where organic farming was stated to be beneficial to public health, social and rural development, animal welfare and the environment.Google Scholar

⁸³ 2010 Coexistence Recommendation, supra note 23, Guidelines, Section 1.1. This more closely reflects Regulation 834/2007/EC on organic production and labelling of organic products and repealing Regulation (EEC) No 2092/91, 2007OJ (L 189) 1, which states that should aim at the lowest possible level of presence in the Recitals, and Article 9 which states that no GMOs should be used in organic agriculture.Google Scholar

⁸⁴ It should be pointed out that there have been important statements in contradiction with this within the Commission. In his speech at the Conference, the Commissioner for the Environment, Stavros Dimas, stated that co-existence measures could protect the environment as well as economics. Stavros Dimas, Commissioner for the Environment, “Coexistence of genetically modified, conventional and organic crops: Freedom of choice,” April 5, 2006, available at http://www.europa-eu-un.org/articles/en/article_5884_en.htm (accessed 8 December 2010).Google Scholar

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⁹² For example, Interfering with nature, “playing god,” taking unnecessary risks, etc. Nuffield Council on Bioethics, Genetically Modified Crops: the Ethical and Social Issues (1999), available at http://www.nuffieldbioethics.org/gm-crops J.S. Applegate, The Prometheus Principle: Using the Precautionary Principle to Harmonize the Regulation of Genetically Modified Organisms, 9 Ind. J. Global Legal Stud. 207 (2001).Google Scholar

⁹³ The EU provides protection for what are described as “quality products” and includes protected designation of origin, protected geographical indication and traditional specialties guarantees. See Commission, European, Geographical Indications and Traditional Specialties, available at www.ec.europa.eu/agriculture/quality/schemes/index_en.htm. As well as the economic aspects acceptable to the Commission, there are further societal, cultural and potentially health benefits to these. In Case 196/85, Commission v France, 1987 E.C.R. 1597, protection of traditional and customary methods was upheld as a legitimate objective.Google Scholar

⁹⁴ Joined Cases C-465/02 and C-466/02, Germany and Denmark v Commission, 2005 E.C.R. I-9115, para. 69, state that this concept includes designations of origin and geographical indications. The specific marks mentioned ibid would also be covered.Google Scholar

⁹⁵ E.g. through facilitating genuinely GM-free produce.Google Scholar

⁹⁶ However the issue must involve a genuine and serious threat to fundamental interests of the Member State. Case 30/77, Bouchereau 1977 E.C.R. 1999 para. 34–35.Google Scholar

⁹⁷ Case C-244/06, Dynamic Medien Vertriebs GmbH v Avides Media AG, 2008 E.C.R. I-505, para. 44.Google Scholar

⁹⁸ In Case C-165/08, Commission v Poland, Jul. 16, 2009, paras. 54–59, Poland attempted to argue ethics; however these were held to be too closely linked to environmental and health concerns. Further, the views of certain sections of the public were held not to suffice as indicative of ethics or public moral.Google Scholar

⁹⁹ Available at www.ogm.gouv.fr (accessed Dec. 8, 2010).Google Scholar

¹⁰⁰ Co-Extra, Genetically modified plants in France, available at http://www.coextra.eu/country_reports/gmo_planting_FR_EN.html.Google Scholar

¹⁰¹ This was upheld by the Conseil d'Etat in March 2008: Ordonnance du juge des référés du 19 mars 2008, http://www.conseil-etat.fr/cde/node.php?articleid=739 (accessed Dec. 8, 2010).Google Scholar

¹⁰² France proposes tough E.U. standards related to genetically modified crops, MarketWatch, Mar. 4, 2008, http://www.marketwatch.com/news/story/france-proposes-tougher-eu-standards/story.aspx?guid={AA76A432-AE89-49C7-A44F-D986092F1718} (accessed Dec. 8, 2010).Google Scholar

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¹⁰⁴ The first two requirements are found within the chapeau of Article 36 TFEU, while the third of proportionality has been imposed by the Courts from an early stage, e.g., Case 4/75, Rewe-Zentralfinanz eGmbH v Landwirtschaftskammer, 1975 E.C.R. 843.Google Scholar

¹⁰⁵ Tridimas, supra note 47, at 137.Google Scholar

¹⁰⁶ However the second and third aspects are similar in content and are frequently dealt with together.Google Scholar

¹⁰⁷ Tridimas, supra note 47, at 139; Case 11/70, Internationale Handelsgesellschaft, 1970 E.C.R. 1125.Google Scholar

¹⁰⁸ Case C-110/05, Commission v. Italy, 2009 E.C.R. I-519, para. 65.Google Scholar

¹⁰⁹ See supra note 96 and note 97.Google Scholar

¹¹⁰ Unless legally challenged, the EU measure will be presumed to be in conformity with the Treaties. Further if challenged, any EU measures must comply with the principle of proportionality in achieving their objectives (e.g., Case 137/85, Maizena 1987 E.C.R. 4587, para. 15) and the institution will be granted a wide margin of discretion in deciding upon these measures; the usual test being whether the measures were “manifestly inappropriate” (e.g., Case C-84/94, United Kingdom v Council, 1996 E.C.R. I-5755, para. 58). Therefore the burden will be substantial for a Member State if the EU measure claims to have already dealt with the objective in question.Google Scholar

¹¹¹ Case C-165/08, supra note 98.Google Scholar

¹¹² Id. at paras. 19 and 21.Google Scholar

¹¹³ Id. at para 51.Google Scholar

¹¹⁴ Id. at para. 34 (referring to Article 29 of Directive 2001/18).Google Scholar

¹¹⁵ Case C-6/99, supra note 45.Google Scholar

¹¹⁶ M. Demont & Y. Devos, Regulating coexistence of GM and non GM crops without jeopardizing economic incentives, 26 Trends in Biotechnology 353 (2008); and Levidow & Boschert, supra note 35.Google Scholar

¹¹⁷ An exhaustive analysis is beyond the scope of this article, and this section only provides a brief overview of some of the issues that might arise if the proposed Article26b were challenged before the WTO.Google Scholar

¹¹⁸ The Trade-Related Aspects of Intellectual Property Rights Agreement is a further option.Google Scholar

¹¹⁹ Panel Report, supra note 13, para. 7.2418.Google Scholar

¹²⁰ European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, 2001:VII, 3243. The criteria listed are: “(i) the properties, nature and quality of the products; (ii) the end-uses of the products; (iii) consumers’ tastes and habits - more comprehensively termed consumers’ perceptions and behaviour - in respect of the products; and (iv) the tariff classification of the products,” at para. 101.Google Scholar

¹²¹ Condemned within the EU in Case 178/84, Commission v Germany, 1987 E.C.R. 1227, para. 32.Google Scholar

¹²² For more in-depth discussion, See Wong, J., Are Biotech Crops and Conventional Crops Like Products? An Analysis under GATT, 2003 Duke L. & Tech. Rev. 0027; and D. Morgan & G. Goh, Genetically Modified Food Labelling and the WTO Agreements, 13 RECIEL 306, 315–317 (2004).Google Scholar

¹²³ For example in Articles XII, XVIII, XIX, and XXI.Google Scholar

¹²⁴ United States - Standards for Reformulated and Conventional Gasoline, WT/DS2/AB/R DSR 1996:I.Google Scholar

¹²⁵ In accordance with the good faith requirement of the chapeau of Article XX.Google Scholar

¹²⁶ The first instance of the AB addressing the exception of ‘public morality’ under the scope of any WTO Agreements was within United States – Measures affecting the cross-border supply of gambling and betting services, WT/DS285/AB/R, DSR 2005:XII, 5663; fn 351 of the Report of the Appellate Body of the WTO. M. Wu, Free Trade and the Protection of Public Morals: An Analysis of the Newly Emerging Public Morals Clause Doctrine, 33 Yale J. Int'l. L. 215 (2008).Google Scholar

¹²⁷ See the AB's Report, id. at para 327 (restrictive measures taken by the USA were necessary for the protection of public morality and the maintenance of public order).Google Scholar

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¹²⁹ Marwell, J.C., Trade and Morality: The WTO Public Morals Exception After Gambling, 81 NYU Law Review 802 (2006); and Wu, supra note 126, at 231–233.Google Scholar

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¹³¹ China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products- WT/DS363/AB/R.Google Scholar

¹³² Panel Report in US-Gambling, supra note 128, at para. 6.461, where they refer to the discretion traditionally granted by the AB to States in deciding upon the level of protection, and then apply it to the content of what may be protected, similarly to the approach within the EU; the Panel continued this approach in China-Audiovisual Services-see WT/DS363/R at para. 7.759.Google Scholar

¹³³ Panel Report in China-Audiovisual Services, id. at paras. 7.762-3 (the relevance to morality was not specifically contested).Google Scholar

¹³⁴ Id. at paras. 7.782–7.793.Google Scholar

¹³⁵ AB's Report in US-Gambling, supra note 126, at paras. 103–109.Google Scholar

¹³⁶ Id. at paras 126–7. The AB did however find against the USA on the basis that they had not demonstrated that the measures did not discriminate against foreign gambling service providers.Google Scholar

¹³⁷ Panel Report, supra note 132, at paras. 7.794–7.909, and AB Report, supra note 131, paras. 234–335.Google Scholar

¹³⁸ Panel Report, supra note 132, at paras 7.848, 7.863 and 7.868; The AB upheld the Panel's conclusions generally, however believed that China had failed to establish even necessity conditional on no reasonable alternatives being available, AB Report, supra note 131, at para. 336.Google Scholar

¹³⁹ Panel Report., supra note 132, at paras 7.869–7.909, and AB Report, supra note 131, at paras 336–7.Google Scholar

¹⁴⁰ Supra note 98.Google Scholar

¹⁴¹ E.g., EU makes decision on approval, countries on cultivation, GMO-Safety News, June 8, 2010, available at http://www.gmo-safety.eu/news/1182.makes-decision-approval-countries-cultivation.html (accessed Dec. 8, 2010); J. Riss, M. Stoczkiewicz, & R. Gouveia, Barroso's empty GM deal, European Voice, July 8, 2010, available at http://www.europeanvoice.com/article/imported/barroso-s-empty-gm-deal/68451.aspx. The authors of this letter respectively are Director of the European Unit of Greenpeace, Director of Friends of the Earth Europe, and Secretary General of Euro Coop Brussels.Google Scholar