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Statement by the United States at the Meeting of the WTO Dispute Settlement Body Geneva, EUROPEAN COMMUNITIES MEASURES AFFECTING THE APPROVAL AND MARKETING OF BIOTECH PRODUCTS RECOURSE TO ARTICLE 22.2 OF THE DSU BY THE UNITED STATES (WT/DS291/39) As the United States noted at the January meeting of the DSB, the reasonable period of time for EC compliance in this dispute expired on January 11, 2008. Even though more than four and one half years have elapsed since the United States filed its consultation request in May 2003, the issues covered in the dispute remain unresolved. On January 14, the United States and the EC agreed to certain procedures under Articles 21 and 22 of the Dispute Settlement Understanding for the purposes of this dispute. Those agreed procedures have been notified to the DSB (WT/DS291/38 (17 January 2008)). The United States and the EC have entered into these agreed procedures with the intent of allowing continued discussions aimed at the goal of resolving this dispute and related issues. On January 17, 2008, the United States requested authorization under Article 22.2 of the DSU to suspend concessions and other obligations with respect to the EC under the covered agreements. The requested level of suspension is the annual level equivalent to the annual level of nullification or impairment of benefits accruing to the United States resulting from the EC's failure to bring measures of the EC and its member States concerning the approval and marketing of biotech products into compliance with the DSB’s recommendations and rulings. Pursuant to the agreed procedures between the United States and the EC, on February 6, the EC objected to the level of suspension proposed by the United States, and claimed that the U.S. request has not followed the principles or procedures set forth in Article 22.3 of the DSU. The EC objection serves to refer this matter to arbitration pursuant to Article 22.6 of the DSU, and no further action is required of the DSB. Indeed, Article 22.6 does not refer to any decision by the DSB. Nevertheless, we have no objection if the DSB wishes to take note of that fact and confirm that it may not consider our request for authorization, which is the item on the agenda today, since the matter is being referred to arbitration. We would like to note, however, that it is unfortunate that the time of the DSB had to be wasted to consider this matter today. We would have much preferred to have withdrawn our request under Article 22.2 from the agenda of this meeting, as Japan did with respect to its own Article 22.2 request at the last DSB meeting. Unfortunately, we were told by the EC that unless we committed to leave our request on the agenda of the meeting, the EC would nonetheless require the DSB to meet by itself putting the U.S. request on the agenda. In light of this, and in order to spare the DSB, the Chair, and the Secretariat needless procedural complications, the United States chose not to withdraw its request. Pursuant to the agreed procedures between the United States and the EC, the United States and EC will request the arbitrator to suspend its proceedings. If and when the DSB finds that a measure taken to comply with the recommendations and rulings of the DSB in this dispute does not exist or is inconsistent with a covered agreement, the arbitration will resume at the request of the United States. We continue to hope that the EC will take the steps necessary to resolve this dispute, so that there will be no need for the United States to resort to the withdrawal of concessions or other obligations. [Second intervention] Mr. Chairman, to be clear, under the terms of the DSU, the filing of the EC's objection automatically resulted in the matter being referred to arbitration. Thus, there is no need today for the EC to request that this matter be referred again to arbitration. As we noted, Article 22.6 does not refer to any decision by the DSB in this regard.
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