The Role of the Judge in the EU and WTO: Lessons from the BSE and Hormones Cases

Journal of International Economic Law

Volumn 4, Issue 1, 2001, Pages 189-208

  McNelis, Natalie ^a  

^a Stibbe   (Belgium)

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EID: 0035610792     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/4.1.189     Document Type: Article

References (68)

1. The Hormones ban also gave rise to litigation in the ECJ, see discussion of the Fedesa case below.
2. In March 1996, the Spongiform Encephalopathy Advisory Committee stated that eating beef from cattle that had BSE was the most likely cause of certain cases of CJD in humans, see ECJ, Case C-180/96 UK v Commission [1998] ECR 2265, para 9.
3. Commission Decision 96/239, OJ 1996 L 78/47. The ban also extended to exports of beef and related products from the UK to third countries. That the ban also covered third countries was an element that was vehemently challenged before the ECJ, on the grounds that the Commission did not have the power to enact such a far-reaching measure (see in particular ECJ, Case C-180/96 UK v Commission [1998] ECR 2265, para 16ff). The Council defended the worldwide nature of the Commission's ban by saying that it made deflections of trade (such that exported beef could find its way back to the EU) impossible, and it added that 'it would have been indefensible to apply dual standards, depending on whether the products were destined for the Community or for third countries.' (Ibid, at para 22) The Court upheld the worldwide nature of the ban, but supported its decision on the danger of possible re-importation to the EU if the ban were not worldwide.
4. ECJ, Case C-180/96 UK v Commission [1998] ECR 2265 and reference for a preliminary ruling in ECJ, Case C-157/96 The Queen v Ministry of Agriculture, Fisheries and Food [1998] ECR I-2211. The first was a direct action for annulment of the EU ban, brought by the UK against the Commission, and the second was a preliminary ruling pursuant to a question about the validity of the EU measures from the UK High Court, in a case in which farmers had sued the UK Ministry of Agriculture for acts based on the EU ban.
5. In particular, Council Directive 90/425/EEC of 26 June 1990 concerning veterinary and zoological checks applicable in intra-Community trade in certain live animals and products with a view to the completion of the internal market (OJ 1990 L 224/29) and Council Directive 89/662/EEC of 11 December 1989 concerning veterinary checks in intra-Community trade with a view to the completion of the internal market (OJ 1989 L 395/13), as amended.
6. 7 ECJ, Case C-180/96 UK v Commission [1998] ECR 2265 at para 63.
7. Ibid, at para 96. See also ECJ, Case C-331/88 Fedesa and Others [1990] ECR I-4023, para 13 and Joined Cases C-133/93, C-300/93 and C-362/93 Cripoltoni [1994] ECR I-4863, para 41.
8. Ibid, at para 96. See also ECJ, Case C-331/88 Fedesa and Others [1990] ECR I-4023, para 13 and Joined Cases C-133/93, C-300/93 and C-362/93 Cripoltoni [1994] ECR I-4863, para 41.
9. Ibid, at para 96. See also ECJ, Case C-331/88 Fedesa and Others [1990] ECR I-4023, para 13 and Joined Cases C-133/93, C-300/93 and C-362/93 Cripoltoni [1994] ECR I-4863, para 41.
10. Ibid, UK v Commission, at paras 99 and 63 respectively.
11. Ibid, at paras 110 and 111.
12. Commission Decision 1999/514, OJ 1999 L 195/42.
13. Council Directive 81/602/EEC of 31 July 1981 (OJEC 1981 L 222/32); Council Directive 88/146/ EEC of 7 March 1988 (OJEC 1988 L 70/16); Council Directive 88/299/EEC of 17 May 1988 (OJEC 1988 L 128/36). These directives were later repealed and replaced by Council Directive 96/ 22/EC of 29 April 1996 (OJEC 1996 L 125/3).
14. WTO Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones), Complaint by the United States, WT/DS26/R/USA, adopted 13 February 1998, paras 26 and 31. This is not to question the sincerity or the seriousness of those concerns. In fact, in the early 90s, a Belgian veterinarian was murdered by assassins linked to what is known in Belgium as the 'hormone mafia', because of his role in enforcing the ban on the use of growth hormones by cattle breeders in the EU.
15. Ibid and WTO Panel Report, EC - Measures Concerning Meat and Meat Products (Hormones), Complaint by the Canada, WT/DS48/R/CAN, adopted 13 February 1998. In particular, they argued that these measures: directly and indirectly affected international trade; were not based on an assessment of risk and were consequently inconsistent with Article 5.1 SPS; were maintained without sufficient scientific evidence in contravention of Article 2.2 SPS; were not justified as a 'provisional' measure under Article 5.7 SPS; breached Articles 2.2 and 5.6 SPS in that they were not based on scientific principles; were not applied only to the extent necessary to protect human life or health and were more trade-restrictive than required to achieve the appropriate level of sanitary protection; arbitrarily or unjustifiably discriminated between Members where identical or similar conditions prevailed, in contravention of Article 2.3 SPS; constituted a disguised restriction on international trade, in breach of Article 2.3 SPS; contravened Article 3.1 SPS because they were not based on the relevant international standards, guidelines, or recommendations and that this departure from international standards was not justified by Article 3.3 SPS; and were based on arbitrary or unjustifiable distinctions in the levels of protection in different situations, resulting in discrimination or a disguised restriction on international trade in contravention of Article 5. (para III (2)).
16. Ibid and Appellate Body Report, European Communities - Measures Affecting Meat and Meat Products (Hormones), WT/DS26/AB/R, adopted 13 February 1998.
17. Appellate Body report at para 172.
18. Ibid, para 173.
19. Ibid, para 193.
20. Ibid, para 208.
21. Ibid, para 200.
22. The Appellate Body of course refers to the 'European Communities', but for consistency the abbreviation EU will be used throughout this paper.
23. ECJ, Case 331/88, The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others ('Fedesa'), [1990] ECR I-4023. The EU's hormones regime was also the subject of a number of other cases before the ECJ, brought by companies, the UK government, and non-governmental organizations (see ECJ, Case 160/88, Fedesa v Council, [1988] ECR 6399; ECJ, Case 160/88R, Fedesa v Council, [1988] ECR 4121; ECJ, Case 34/88, Cooperative agricole de l'Anjou et du Poitou and others v Council, [1988] ECR 6265; ECJ, Case 376/87, Distrivet SA v Council, [1988] ECR 209; ECJ, Case 68/86, UK v Council, [1988] ECR 855).
24. Which translates to the European Federation of Animal Health.
25. Axel Desmedt, 'Hormones: "Objective Assessment" and (or as) Standard of Review', 1 J Int'l Econ L 695 (1998).
26. ECJ, Case C-180/96 UK v Commission [1998] ECR 2265, para 39.
27. Ibid, para 61.
28. Ibid, para 75.
29. Incidentally, the standard of review in Fedesa was identical to that in BSE.
30. Appellate Body Report in Hormones, para 111.
31. Ibid, para 14.
32. Ibid, para 15.
33. Ibid, para 17.
34. Ibid, para 115.
35. Ibid, para 116.
36. Ibid, para 117.
37. Ibid, para 193.
38. Ibid, para 198, 199.
39. Ibid, para 200.
40. The fifteen Member States of the EU are WTO Members, as is the EU (the European Communities) itself.
41. See for example, ECJ, Joined cases C-289/96, C-293/96 and C-299/96 Kingdom of Denmark, Federal Republic of Germany and French Republic v Commission of the European Communities [1999] ECR I-1541 (where the ECJ annulled a Commission regulation registering 'feta' as a protected geographical indication and designation of origin); ECJ, Joined cases C-68/94 and C-30/95 French Republic and Société commerciale des potasses et de l'azote (SCPA) and Entreprise minière et chimique (EMC) v Commission of the European Communities [1998] ECR I-1375 (the Kali und Salz case, where the Court overruled a Commission decision in the context of merger control); and CFI (European Court of First Instance), Cases T-30, 36 and 37/91 Solvay and ICI v Commission of the European Communities [1995] ECR II-1775 (the Soda Ash cases, where the Court reversed the Commission on rights of the defense and access to the file).
42. Some examples of other cases in which the Court has found a restriction to the free movement of goods in the EU not to be justified on public health grounds are in the Cassis de Dijon case, cited above (minimum alcohol content), Commission v Germany, Case 153/78 [1979] ECR 2555 (a prohibition on importing meat products manufactured in one Member State from animals slaughtered in another Member State), Gilli and Andres, Case 788/79 [1980] ECR 2071 (prohibition on the importation and sale of vinegar other than wine vinegar) and Kelderman, Case 130/80 [1981] ECR 527 (prohibition on the sale of bread containing more than a certain amount of dry matter).
43. In fact, the measures the Community institutions took over hormones could be seen as ensuring free movement in the Community, see Joanne Scott, 'On Kith and Kine (and Crustaceans): Trade and Environment in the EU and WTO', in Joseph Weiler, The EU, the WTO, and the NAFTA, Towards a Common Law of International Trade? (Oxford, UK: Oxford University Press 2000) 125, at 160: . . . the European Court exhibited greater deference than the WTO dispute settlement organs in reviewing the scientific basis of Council acts prohibiting hormones in beef. [footnote omitted] It should, however, be stressed that the reluctance of the Court to second-guess legislative policy choices occurred in the context of an act conceived as facilitating rather than impeding market integration. Indeed, had the measures not been enacted, the different approaches adopted by the Member States to the administration of hormones in farming might have resulted in market fragmentation as a result of Member State recourse to Article 30 EC exception (formerly Article 36).
44. But, one might say, the hormone ban also affected European producers. However, use of hormones in the European beef industry was never as prevalent as in the US and Canadian industries. Unlike the measures taken in the BSE case, which made all exports from one Member State impossible, the hormone ban only required some European producers to change their policies.
45. Incidentally, Professor Donald Regan argues that this is also true in the United States, where what counts for the US Supreme Court in considering a State restriction on the free movement of goods is whether the rule in question has a protectionist purpose, see Donald Regan, 'The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause' 84 Michigan Law Review 1091 (1986), a point of view that he maintains today, following from his presentation at the World Trade Forum conference, held in Berne in August 2000.
46. In fact, the EU did not go so far as to ask for a 'manifest error' standard of review in Hormones, but it did seek a 'reasonableness' standard. That language sounds like a US administrative law standard of review - but the EU before the WTO is not in the position of an administrative agency.
47. I am indebted here to the thinking of Marco Slotboom on this issue, in his article, 'The Hormones case: an Increased Risk of Illegality of Sanitary and Phytosanitary Measures' 36 Common Market Law Review 471 (1999), at 486-91.
48. The EU free movement of goods, which is directly based on the GATT rules, springs from Article 28 EC Treaty, which says: 'Quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States.' Article 29 provides the same rule for exports. Derogations from these rules are possible, in particular on the basis of Article 30 EC Treaty: The provisions of Articles 28 and 29 shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on the grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of national treasures possessing artistic, historic or archeological value; or the protection of industrial and commercial property. Such prohibitions or restrictions shall not, however constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. The Court has also recognized in its Cassis de Dijon line of cases a series of 'mandatory requirements' in addition to the grounds of justification expressly set out in Article 30, such as consumer protection, the prevention of unfair competition, and the protection of the environment. (ECJ, Case 120/78 Rewe-Zentral v Bundesmonopolverwaltung für Branntwein ('Cassis de Dijon') [1979] ECR 649).
49. However, as will be discussed below, when one speaks of sovereignty it must be kept in mind that the EU Member States have accepted much more far-reaching encroachments on their sovereignty than the WTO Members have.
50. EC Treaty, now Article 30.
51. ECJ, Case 104/75 De Peijper [1976] ECR 613, at para 15.
52. See for example ECJ, Case C-174/82 Sandoz BV [1983] ECR 2445, para 16, ECJ, Case C.272/80, Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 327, para 12, ECJ, Case C-227/82 van Bennekom [1983] ECR 3883, para 38 and ECJ, Case C-178/84, Commission v Germany [1987] ECR 1227, para 41.
53. See for example ECJ, Case C-174/82 Sandoz BV [1983] ECR 2445, para 16, ECJ, Case C.272/80, Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 327, para 12, ECJ, Case C-227/82 van Bennekom [1983] ECR 3883, para 38 and ECJ, Case C-178/84, Commission v Germany [1987] ECR 1227, para 41.
54. See for example ECJ, Case C-174/82 Sandoz BV [1983] ECR 2445, para 16, ECJ, Case C.272/80, Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 327, para 12, ECJ, Case C-227/82 van Bennekom [1983] ECR 3883, para 38 and ECJ, Case C-178/84, Commission v Germany [1987] ECR 1227, para 41.
55. See for example ECJ, Case C-174/82 Sandoz BV [1983] ECR 2445, para 16, ECJ, Case C.272/80, Frans-Nederlandse Maatschappij voor Biologische Producten [1981] ECR 327, para 12, ECJ, Case C-227/82 van Bennekom [1983] ECR 3883, para 38 and ECJ, Case C-178/84, Commission v Germany [1987] ECR 1227, para 41.
56. ECJ, Case C-178/84, Commission v Germany [1987] ECR 1227.
57. Ibid, at para 39.
58. Ibid, at para 48.
59. In so doing, the Court confirmed earlier decisions in which it emphasized that the proportionality test obliges a Member State to take into account the results of international scientific research. See ECJ, Case 247/84 Motte [1985] ECR 3887, para 24.
60. Ibid at para 44.
61. Ibid at para 49. This requirement of specific studies was confirmed in a subsequent judgment, ECJ, C-17/93, Van der Veldt, [1994] ECR 3537, para 17, where the Court struck down a Belgian food safety norm whereby bread could not contain more than 2 percent salt, thus prohibiting imported bread containing 2.11 to 2.17 percent salt.
62. Ibid at para 49. This requirement of specific studies was confirmed in a subsequent judgment, ECJ, C-17/93, Van der Veldt, [1994] ECR 3537, para 17, where the Court struck down a Belgian food safety norm whereby bread could not contain more than 2 percent salt, thus prohibiting imported bread containing 2.11 to 2.17 percent salt.
63. But see ECJ, Case 247/84 Motte [1985] ECR 3887 (where the ECJ upheld a Belgian rule prohibiting the use of colorants for use in lumpfish roe, although those colorants were authorized in Belgium for use in other foodstuffs). With regard to the issue of consistency, after five years of deliberation, the WTO SPS Committee recently completed draft guidelines on risk 'consistency', guidelines on which there was 'fairly general agreement'. The aim of this text is to give national authorities WTO guidelines to help them to treat risk consistently in their food safety, animal, and human health measures, as is required by Article 5.5 SPS (as reported in the WTO's 'Focus' Newsletter of March/April 2000).
64. ECJ, Case 6/64 Costa v ENEL [1964] ECR 1141.
65. See for example ECJ, Case C-5/94 The Queen and Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas [1994] ECR I-2553.
66. On 25 July 2000, a Panel upheld a French ban on white asbestos from Canada. While the Panel found that the ban was a violation of Article III:4 GATT, it found it justified under the public health exception of Article XX(b) GATT. This was the first time that the WTO has endorsed a trade ban on the basis of health concerns (WTO Panel Report, European Communities - Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/R, report made public 18 September 2000, not yet adopted). On 23 October 2000, Canada notified the Dispute Settlement Body of its decision to appeal the case.
67. Commission Decision of 23 July 1999, OJ L 195/42.
68. Indeed, on 4 January 2000, the Commission filed suit against France for its failure to lift the ban. It threatened to do the same against Germany, but Germany finally complied with the EU rule. France, for its part, brought an action against the Commission in December 1999 claiming that the Commission failed to observe the precautionary principle in removing the ban. Both cases are pending before the ECJ (Action brought on 29 December 1999 by the French Republic against the Commission of the European Communities, ECJ, Case C-514/99 OJ 2000 C 63/18 and Action brought on 4 January 2000 by the Commission of the European Communities against the French Republic, ECJ, Case C-1/00 OJ 2000 C 63/19).