European Communities - Measures Affecting the Approval and Marketing of Biotech Products - (WT/DS291, WT/DS292, WT/DS293)
STATEMENT OF AUSTRALIA AT THE THIRD PARTY SESSION OF THE PANEL
Geneva, 3 June 2004
1. As a third party to this dispute, Australia welcomes this opportunity to present its views to the Panel.
2. The Panel has an important and challenging task in front of it. The first written submissions of the principal parties have raised a wide range of complex factual, scientific and legal issues, which may, or may not, be pertinent to the Panel’s resolution of the dispute. The issues raised include
- the nature of risks associated with biotech products and relevant approaches to risk assessment
- the legal characterisation of the contested measures
- whether these measures are subject to the WTO covered agreements, and if so, which provisions are applicable;
- whether the EC has acted inconsistently with any of the applicable WTO provisions; and
- the relevance, if any, to the Panel’s deliberations of the EC’s extensive references to the Biosafety Protocol and to the concept of precaution as reflected in legal texts other than the WTO covered agreements.
3. These issues clearly have a systemic dimension as well.
4. Given the facts and circumstances of this dispute and the obvious care and attention taken by the complaining parties in framing their legal claims and arguments narrowly, Australia is of the view that the Panel should adopt a measured approach and limit its rulings and recommendations accordingly. Australia notes that the Panel has considerable discretion to exercise ‘judicial economy’ in making an objective assessment of the matter before it, and in making its recommendations and ruling.
5. Whatever approach is adopted by the Panel in making its objective assessment, Australia has a substantial interest in the matter before the Panel, particularly in relation to the interpretation and application of the cited provisions of the covered agreement, and in any consideration by the Panel of any legal claims and arguments regarding the relationship between the WTO Agreement and any other international laws or standards that may be considered relevant.
6. Given these interests, which we would expect are shared by other third parties, Australia would expect the Panel to provide all third parties with the fullest possible opportunity to express views on any specific issue of law or legal interpretation considered by the Panel to be relevant to the resolution of the dispute.
7. Accordingly, Australia requests the Panel to ensure that all third parties are given an opportunity to respond in writing to all relevant written questions presented to the parties following this meeting, as well as to any relevant subsequent written questions that might be raised at a later stage in the proceedings.
II. Australian Interests
8. I would like to expand on the issues of interest to Australia.
9. Australia has a strong interest in any assessment by the Panel of the applicability and interpretation of the provisions of the SPS Agreement raised by the parties (Articles 1, 2, 5, 7, 8 and 10, and Annexes B and C). Areas of particular interest to Australia, should the Panel consider these to be of any relevance to the resolution of the dispute, are the scope of the SPS agreement and its applicability to the contested measures, and the relationship of Article 5.7 with other provisions of the SPS Agreement or with any other relevant agreements.
10. Australia also has a strong interest in any assessment by the Panel of the applicability and interpretation of the provisions of the TBT Agreement (Articles 2, 5 and 12) and of GATT (Articles III and XI) which have been raised by the parties. Areas of particular interest to Australia, should the Panel consider these to be of any relevance to the resolution of the dispute, include the scope and application of the TBT agreement in general, and of the term “like products” under the relevant TBT and GATT provisions in relation to biotech products.
11. Finally, in relation to the EC’s extensive references to the Biosafety Protocol and to the concept of precaution as reflected in non-WTO legal texts, in Australia’s view the matter before the Panel can be resolved solely by reference to the WTO covered agreements. Given the facts of this dispute, there is no need for the Panel to consider the applicability of such non-WTO legal texts. Of particular relevance is the fact that none of the three complaining parties are parties to the Biosafety Protocol.
12. However, should the Panel consider the Biosafety Protocol or non-WTO reflections of the concept of precaution to be of any relevance to the resolution of the dispute, Australia has a strong interest in ensuring that its views on these issues be taken into account.
13. I want to conclude by registering clearly with the Panel Australia’s expectation that all third parties will be provided with the fullest possible opportunity to express views on specific issues of law or legal interpretation considered by the Panel to be relevant to the resolution of the dispute. As noted earlier, Australia expects this view is shared by other third parties.
14. Article 10 of the DSU requires the Panel to ensure that the interests of third parties are fully taken into account during the Panel process. At this point in the process, an extraordinarily wide range of factual, scientific and legal issues have been raised. It is also apparent that the fundamental nature of the dispute and legal claims is vigorously contested; this is most clearly indicated in paragraph 11 of the European Communities’ first written submission which purports to reserve the right to provide a “a full refutation of the Complainants first written submission” for its rebuttal submission. Given this situation, it is simply not possible for third parties to determine which of these issues will be the subject of an objective assessment by the Panel, and it would be pointless for third parties to present views on the full range of issues on a completely speculative basis.
15. Against this background, Australia has therefore not presented any substantive views on the wide range of factual, scientific and legal issues raised by the principal parties. Instead, we have sought to identify issues on which Australia wishes to present its views, in the event those issues are considered by the Panel to be relevant to the resolution of the dispute. As indicated earlier, given the circumstances in this dispute, the most appropriate approach for the Panel to take into account Australian and other third party interests under the covered agreements is to provide third parties the fullest possible opportunity to provide responses to any written questions presented to the parties following this meeting, as well as to any subsequent questions that might be raised at a later stage in the proceedings. This approach is within the Panel’s discretion and is fully consistent with relevant DSU provisions, such as Articles 10 and 13.)
 US – Wool Shirts and Blouses, WT/DS33/AB/R at page 18.
 US – FSC Article 21.5 WT/DS108/AB/RW, paragraph 243.