Do public health measures receive similar treatment in European community and World Trade Organization Law?

Journal of World Trade

Volumn 37, Issue 3, 2003, Pages 553-596

  Slotboom, Marco M ^a  

^a NONE   (Belgium)

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EID: 65849174471     PISSN: 10116702     EISSN: None     Source Type: Journal    
DOI: 10.54648/trad2003027     Document Type: Article

References (218)

1. See Slotboom, Do Different Treaty Purposes Matter for Treaty Interpretation? - The Elimination of Discriminatory Internal Taxes in EC and WTO Law, 4 J.I.E.L. 3 (2001), 557-579.
2. See Slotboom, Subsidies in WTO Law and in EC Law - Broad and Narrow Definitions, 36 J.W.T. 3 (June 2002), 517-542.
3. See Slotboom, The Hormones Case: an Increased Risk of Illegality of Sanitary and Phytosanitary Measures, CMLR 36, 471-491, 1999, at p. 489.
4. For a more detailed description of the notion of SPS measures, see Ahn, Comparative Analysis of the SPS and TBT Agreements, 8 Int'l T.L.R. 3 (2002), 85-96.
5. See, for instance, the Protocol concerning sanitary, phytosanitary and animal welfare measures in relation to trade between the EC and the Czech Republic, OJ 1998, L106/3, Article 2 h).
6. See, for instance, case C-121/00, Hahn, 24 October 2002, not yet published, with respect to an Austrian SPS measure prohibiting the use of listeria monocytogens.
7. For an example of a Swedish regulation concerning the use of trichloro-ethylene (which was not an SPS measure within the meaning of this contribution because it related to a toxin in products other than food, beverages and foodstuffs) adopted to combat public health risks in the absence of EC harmonization, see case C-473/98, Toolex, [2000] ECR I-5681.
8. Note, however, that several measures of the EC legislature (e.g., the EC legislation banning hormones) apply to trade both within and into the EC.
9. Unless otherwise indicated, in this contribution cited Articles refer to the EC Treaty as amended by the Treaty of Maastricht. For the sake of clarity, I also refer to the re-numbered provisions when discussing pre-Maastricht case law of the ECJ. For the same reason, I refer to the EC only even if, strictly seen, it would have been appropriate to speak about the European Economic Community or the European Union.
10. For an extensive discussion of these provisions, see Oliver and Jarvis, Free Movement of Goods in the European Community, 4th edn (London: Sweet & Maxwell, 2003). For a discussion of health measures (including SPS Measures) in the light of Article 28 and 30 EC, see sections 8.59-8.114 of that book.
11. See, for instance, case 8/74, Dassonville, [1974] ECR 837
12. and case 120/78, Cassis de Dijon, [1979] ECR 649.
13. The ECJ has confirmed that, among the grounds which may justify derogation from Article 28 EC, the protection of the health and life of human beings ranks foremost (see, for instance, case C-347/89, Eurim-Pharm, [1991] ECR I-1747, at 26).
14. See, for instance, case C-400/96, Harpegnies, [1998] ECR I-5121, at 34.
15. See, for instance, case 247/84, Muller, [1985] ECR 3887, at para. 25,
16. case C-42/90, Bellon, [1990] ECR I-4863, at 16.
17. See, for instance, case 247/84, Motte, [1985] ECR 3887.
18. See Vos, Health and Safety Regulation (Oxford: Hart Publishing, 1999), p. 33.
19. See for a case on Article 95(5) EC case C-477/98, Eurostock, [2000] ECR I-10695.
20. See case 174/82, Sandoz, [1983] ECR 2445, at 16-17.
21. See also case 53/80, Eyssen, [1981] ECR 409;
22. case 227/82, Van Bennekom, [1983] ECR 3883;
23. Muller, as note 13 above;
24. C-113/91, Debus, [1992] ECR I-3617;
25. C-400/96, Harpegnies, as note 12 above;
26. case E-3/00, EFTA Surveillance Authority v. Norway, 5 April 2001, at 29-31;
27. the opinion of advocate general Mischo in case C-24/00, Commission v. France, 26 June 2001, at 131;
28. and the opinion of the same advocate general in case C-95/01, Greenham, Abel, 16 May 2002, at 18.
29. See case 178/84, Commission v. Germany (Reinheitsgebot), [1987] ECR 1277, at 44.
30. See also Motte, as note 14 above, at 25;
31. and Muller, as note 13 above, at 24.
32. See, for instance, case 94/83, Albert Heijn, [1984] ECR 3263;
33. Toolex, as note 6 above;
34. and Hahn, as note 6 above.
35. The ECJ, though, refers occasionally to these general instructions (see, for instance, case C-507/99, Denkavit, 8 January 2002, not yet published, at 43).
36. In s. 152 of Pfizer, as note 129 below, the European Court of First Instance refers to the "obligation under the first subparagraph of Article [152(1)] of the Treaty". The mere finding that this provision contains an obligation does in my view not change the fact that this rather vague obligation is difficult to apply by the European courts.
37. See, for instance, cases 80 and 81/77, Ramel, [1978] ECR 927;
38. case 179/78, Rivoira, [1979] ECR 1147;
39. case 218/82, Commission v. Council, [1983] ECR 4063;
40. case 15/83, Denkavit, [1984] ECR 2171;
41. and case 216/84, Commission v. France, [1988] ECR 793.
42. See Barents, The Agricultural Law of the EC (Deventer: Kluwer, 1994), pp. 20-21.
43. See, for instance, case C-180/96, UK v. Commission, [1998] ECR I-2265;
44. and case C-157/96, The Queen v. Ministry of Agriculture, Fisheries and Food, [1998] ECR I-2211.
45. Id.
46. OJ 1981, L222/32.
47. OJ 1985, L382/228.
48. See case 68/86, UK v. Council (Hormones), [1988] ECR 855, at 40-49.
49. OJ 1988, L70/16.
50. OJ 1996, L15/3.
51. See case 68/86, UK v. Council, as note 26 above, at 34-36.
52. See also Barents, Hormones and the Growth of Community Agricultural Law: Some Reflections on the Hormones Judgment, L.I.E.I. 1 (1988), 1-19.
53. See case 331/88, Fedesa, [1990] ECR I-4023, at 7-18.
54. The ECJ referred in this context to its judgment in case 265/87, Schräder, [1989] ECR 2237, at 21, 22.
55. See para. 33 of his opinion.
56. Decision 96/239 was based on Directive 90/425, OJ 1990, L224, 29.
57. See case UK v. Commission, as note 22 above;
58. and The Queen v. Ministry of Agriculture, Fisheries and Food, as note 22 above.
59. For developments following the withdrawal of the export ban, see case C-1/00, Commission v. France, 13 December 2001, not yet published;
60. and case C-507/99, Denkavit, 8 January 2002, not yet published.
61. See UK v. Commission, as note 22 above, at 99.
62. See also T-199/96, Bergaderm, [1998] ECR II-2885, at 66.
63. The SPS Agreement and the GATT apply simultaneously to SPS measures. See the report of the WTO Panel on European Community - Measures Affecting Meat and Meat Products (Hormones) (EC - Hormones), WT/DS26/ R, 1997, at paras 8.31-8.42.
64. See also the report of the WTO Panel on European Communities - Measures Affecting Livestock and Meat Hormones (Hormones), WT/DS48/R, 1997. The findings in both reports are similar. In this article, I refer only to the former report. The WTO Appellate Body dealt with the appeal proceedings against both WTO Panel reports in one single report (WT/DS26/ AB/R, 1998 and WT/DS48/AB/R, 1998).
65. See Marceau and Trachtman, The Technical Barriers to Trade Agreement, the Sanitary and Phytosanitary Measures Agreement, and the General Agreement on Tariffs and Trade, A Map of the World Trade Organization Law of Domestic Regulation of Goods, 36 J.W.T. 5 (2002), 811-881, on the relationship between the GATT 1994 and the SPS Agreement.
66. The WTO Appellate Body seems to have given a prioritization of physical characteristics, since it did not address other criteria that normally are examined to establish likeness as well (end-use and consumer tastes and habits), once it had established that asbestos and other technically substitutable products were unlike in view of the public health risks associated with asbestos.
67. In its request for the establishment of a WTO Panel (WT/DS/135/3), Canada also claimed that the French asbestos regulation was inconsistent with the obligations of the EC under Articles 2 and 5 SPS. However, Canada did not pursue this claim in its written or oral arguments before the WTO Panel. It invoked, though, the Agreement on Technical Barriers to Trade ('TBT Agreement'). In § 76 of its report, the WTO Appellate Body on EC - Asbestos reversed the WTO Panel's finding that the TBT Agreement did not apply to the French asbestos regulation. Implicitly, the WTO Appellate Body thus confirmed that the French asbestos regulation was not an SPS measure, since Article 1.5 of the TBT Agreement states that its provisions do not apply to SPS measures. This implicit finding seems to be correct, since asbestos does not 'carry' a disease within the meaning of paragraph 1, sub a) and c) of Annex A to the SPS Agreement, it is not an additive, contaminant, toxin or organism in food, beverages or foodstuffs (sub b)), and it does not spread pests (sub d)).
68. See the report of the WTO Appellate Body on European Community - Measures Affecting Asbestos and Asbestos-containing Products (EC - Asbestos), WT/DS135/AB/R, 2001, at § 100.
69. On this report, see, for instance, Howse and Türk, "The WTO Impact on Internal Regulations - A Case Study of the Canada-EC - Asbestos Dispute", in De Búrca and Scott (eds), The EU and the WTO, Legal and Constitutional Issues (Oxford: Hart Publishing, 2001), pp. 281-328.
70. For a critical analysis of the WTO Appellate Body's findings in this respect, see Regan, Regulatory Purpose and "Like Products" in Article III:4 of the GATT (with Additional Remarks on Article III:2), 36 J.W.T. 3 (2002), 443-478, at 468-471.
71. Indeed, in that case the products that involve a public health risk, on the one hand, and public health risk free products do not constitute "like products". The approach chosen by the WTO Appellate Body in EC - Asbestos obliges the dispute settlement organs to consider regulatory purpose under Article III:4 (which in the case of EC - Asbestos was the prevention of cancer), see Regan, as note 40 above, at 458-464.
72. See, for instance, Trebilcock and Howse, The Regulation of International Trade (Routledge, 1999), p.139.
73. For instance, when the US tried to attack the EC hormones legislation before the entry into force of the WTO Agreements, it did not invoke Article III:4 GATT 1947, but it invoked the Tokyo Agreement on Technical Barriers to Trade. Apparently, the US did not believe that the EC hormones ban infringed Article III:4 GATT 1947. However, the EC argued that this Agreement did not apply to production and processing methods. Therefore, the US complaint was thrown out (see McNiel, as note 85 below, at pp. 109-111).
74. See the report of the GATT panel on Japan - Trade in Semi-conductors, BISD 35S/116, 1989, at para. 104.
75. See the report of the WTO Panel on India - Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products, WT/DS90/ R, 1999, at para. 5.128.
76. The WTO Panel did not decide on the cumulative application of those provisions, since that was not part of the terms of reference given to the WTO (see the report of the WTO Panel on EC - Asbestos, at para. 8.100).
77. See, however, the reports of the GATT panels on Canada - Administration of the Foreign Investment Review Act, BISD 30S/140, 1984, at para. 5.14;
78. and Canada - Import, Distribution and Sale of Alcoholic Drinks by Canadian Provincial Marketing Agencies, BISD 39S/27, 1992, at para. 4.24, where the GATT panels found that Article XI:1 GATT does not apply to internal measures within the meaning of Article III GATT 1947.
79. See Thailand - Restrictions on Importation of and Internal Taxes on Cigarettes, DS10/R, 37S/200.
80. It cannot be brought in one of the four categories of paragraph 1 of Annex A to the SPS Agreement (see above).
81. See for a more detailed discussion of Article XX GATT 1994, for instance, McGovern, International Trade Regulation (Globefield Press, XXXX), at 13.11.
82. See the report of the WTO Appellate Body in EC - Asbestos, at para. 186.
83. See text at note 47 above.
84. The GATT panel came to this conclusion for the following reasons. First, other countries had introduced strict, non-discriminatory labelling and ingredient disclosure regulations which allowed governments to control, and the public to be informed of, the content of cigarettes. In the view of the GATT panel, Thailand could reasonably be expected to take comparable measures. Second, in order to restrict the demand for cigarettes, Thailand had already implemented some non-discriminatory controls on demand, including information programmes, bans on direct and indirect advertising, warnings on cigarette packs, and bans on smoking in certain public places. Third, in order to control supply the Thai government could - in the opinion of the GATT panel - regulate the overall supply of cigarettes, their prices and their retail availability.
85. See Trebilcock and Howse, as note 42 above, at p. 140.
86. See the report of the WTO Appellate Body in EC - Asbestos, at para. 175.
87. For a detailed description of the SPS Agreement, see Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes, 2 J.I.E.L. 4 (1999), 641-664;
88. and McGovern, as note 49 above, at 14.4.
89. See for Article 5.7 SPS, see section IV.B.3 below.
90. See the report of the WTO Appellate Body on EC - Hormones, at para. 171.
91. Ibid., at para. 171.
92. Ibid., at paras 104, 172 ff.
93. See the report of the WTO Appellate Body on EC - Hormones, at paras 175-176. As McGovern observes as note 49 above, at para. 14.42), the interpretation given by the WTO Appellate Body leaves Article 3.3 SPS with little significance.
94. See the report of the WTO Panel on EC - Hormones, at paras 8.250-8.270.
95. See the report of the WTO Appellate Body on EC - Hormones, at para. 177.
96. See also, the text at note 72 below.
97. Ibid., at para. 194.
98. See the report of the WTO Appellate Body on Australia - Measures Affecting the Importation of Salmon (Australia - Salmon), WT/DS 18 /AB/ R, 1998, at footnote 69.
99. See the report of the WTO Appellate Body on EC - Hormones, at para. 187.
100. Ibid., at para. 194.
101. Ibid., at para. 186 ff.
102. Ibid., at para. 193.
103. See also the report of the WTO Appellate Body on Japan - Measures Affecting Agricultural Products (Japan - Agricultural Products), WT/ DS76/AB/R, 1991 at para. 20.
104. See Hurst, Hormones, European Communities - Measures Affecting Meat and Meat Products, at , at pp. 28-29. See also the report of the WTO Appellate Body on EC - Sardines, WT/DS231/AB/R, 2001, at paras 242-248, suggesting that an SPS measure is based on a risk assessment if the risk assessment is used as the principal constituent or fundamental principle for the purpose of enacting the SPS measure. The acceptance of a weak rational relationship by the WTO Appellate Body in EC - Hormones is difficult to bring in line with this definition of "based on".
105. See the report of the WTO Appellate Body on EC - Hormones, at para. 125.
106. See the report of the WTO Appellate Body on Australia - Salmon, at para. 125.
107. Ibid., at paras 197-199.
108. See the report of the WTO Appellate Body on Japan - Agricultural Products, at para. 80.
109. Ibid., at para. 89 ff.
110. Ibid., at para. 93.
111. For the EC interpretation of the precautionary principle, see note 147 below, and the text at note 152 below.
112. See the report of the WTO Panel on EC - Hormones, at para. 8.158.
113. See section IV.B.1 above.
114. See the reports of the WTO Appellate Body on Australia - Salmon, at para. 123 and on Japan - Agricultural Products, at para. 123.
115. See the report of the WTO Appellate Body on EC - Hormones, at para. 166.
116. See the report of the GATT panel on Thailand - Cigarettes, as note 52 above.
117. See also note 52 above.
118. See also Pauwelyn, as note 55 above, at p. 652.
119. See the report of the WTO Appellate Body on EC - Hormones, at para. 212 and the report of the WTO Appellate Body on Australia - Salmon, at para. 140.
120. Document G/SPS/15, 2000.
121. See, for instance, Goh and Ziegler, A Real World Where People Live and Work and die - Australian SPS measures after the WTO Appellate Body's Decision in the Hormones Case, 32 J.W.T. 5 (October 1998), 271-290;
122. Hilf and Eggers, Der WTO-Panelbericht im EG/USA Hormonstreit, 18 EuZW (1997), 559-566;
123. Hurst, as note 69 above, at pp. 1-28;
124. McNiel, The First Case Under the WTO's Sanitary and Phytosanitary Agreement: The European Union's Hormone Ban, 39 Virginia J. Int'l L. 1 (1998);
125. Pardo Quintillan, Free Trade, Public Health Protection & Consumer Protection, 33 J.W.T. 6 (1999), 147-197;
126. Pauwelyn, The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures as Applied in the First Three SPS Disputes, as note 55 above;
127. Quick and Blüthner, Has the Appellate Body Erred? - An Appraisal and Criticism of the Ruling in the WTO Hormones Case, J.I.E.L. (1999), 603-639;
128. Roberts, Preliminary Assessment of the Effects of the WTO Agreement on Sanitary and Phytosanitary Trade Regulations, 3 J.I.E.L. 1 (2000), 377-405;
129. Slotboom, as note 3 above;
130. and Walker, Keeping the WTO from Becoming the World Trans-Science Organization: Scientific Uncertainty, Science Policy and Fact-Finding in the Growth Hormones Dispute, 31 Cornell Int'l L.J. (1998), 251.
131. Since 1987 the United States had imposed retaliatory measures (100 percent tariffs on certain EC products, including tomatoes and beverages). These measures were withdrawn when the United States started WTO dispute settlement proceedings.
132. See at section III.B.1.
133. The WTO Panel came to similar conclusions with respect to melengestrol acetate, for which no international standards had been adopted (see the report of the WTO Panel on EC - Hormones, at paras 8.250-8.270). The WTO Appellate Body confirmed the WTO Panel's finding that there had been no risk assessment with regard to this substance (see the report of the WTO Appellate Body on EC - Hormones, at para. 201).
134. See the report of the WTO Appellate Body on EC - Hormones, at paras 206-208.
135. For criticism, for instance, see Hurst, as note 69 above, at pp. 21-22.
136. See, for instance, case 288/83 Commission v. Ireland, [1985] ECR 1761, where it was held that Ireland had infringed Article 28 EC by imposing an import licensing system for potatoes originating in Cyprus but in free circulation in the UK.
137. See also Jackson, The World Trading System, 2nd edn (Cambridge, MA: MIT Press, 1997), p. 167.
138. Although not all obligations of the SPS Agreement are examples of clarity (see the report of the WTO Appellate Body on EC - Hormones, at para. 161).
139. For that case law, for instance, see Oliver and Jarvis, as note 9 above, at paras 8.59-8.114.
140. For a discussion of secondary public health legislation in EC law, see Vos, as note 15 above.
141. See, for instance, note 6 above.
142. After the entry into force of the WTO Agreements this is no longer unprecedented. The TBT Agreement, the Agreement on Trade-Related Aspects of Intellectual Property and the General Agreement on Trade in Services also contain obligations applying to non-discriminatory government measures.
143. See also McGovern, note 49 above, at para. 14.41.
144. The only exceptions are Articles 2.3 and 5.5 SPS.
145. See McGovern, note 49 above, at paras 1.1212, 14.41.
146. See, for instance, case 46/76, Bauhuis, [1977] ECR 5.
147. An exception is discussed at (f) below, where it is explained that the EC Member States may also in the absence of public health risks block imports of goods including additives for which there is no technological need.
148. See Desmedt, Proportionality in WTO Law, 4 J.I.E.L. 3 (2001), 441-480.
149. For instance, in Hahn, as note 6 above, the ECJ held at 40 that "the existence of risk to public health must be assessed in the light of international scientific research, in particular the work of the Community's scientific committees" (emphasis added). Note in this context that the EC is not yet a member of the Codex Alimentarius Commission (see the proposal for a Council decision on the accession of the EC to the Codex Alimentarius Commission, OJ 2001, C270 /1).
150. See Article 2.2 SPS.
151. Quick and Blüthner, as note 85 above, at p. 624, do not exclude that in fact the EC hormones ban would have fulfilled the conditions of Article 5.7 SPS.
152. See Agence Europe, 24 April 2002.
153. See note 147 below.
154. See also Albert Heijn, as note 19 above, where the ECJ decided that, even if the existence of a public health risk is undisputed, the importing EC Member State should review the prescribed maximum level if it appeared that the reasons that led to its being fixed have changed.
155. See Hurst, as note 69 above, at pp. 21-22.
156. See, for instance, case 40/82, Commission v. UK (Poultry), [1982] ECR 2793.
157. See above at section III.A.1. The concept of "need" in the EC law has been elaborated by the EC legislature in Annex II to Directive 89/107 on the approximation of the laws concerning food additives authorized for use in foodstuffs intended for human consumption OJ 1989, L40/27: an additive has a need if it aims (i) to preserve the nutritional quality of the food, (ii) to provide necessary ingredients or constituents for foods manufactured for groups of consumers having special dietary needs, (iii) to enhance the keeping quality or stability of a food or to improve its organoleptic properties, or (iv) to provide aids in manufacture, processing, preparation, treatment, packing, transport or storage of food. See also Directive 2001/15 on substances that may be added for specific nutritional purposes in foods for particular nutritional uses, OJ 2001, L52/19.
158. See, for instance, Sandoz, as note 17 above, at 17;
159. Reinheitsgebot, as note 18 above, at 42;
160. and cases Debus, as note 17 above, at 14.
161. See on the requirement of a nutritional need the opinion of advocate general Mischo in case C-95/01, Greenham and Abel, 16 May 2002, not yet published, at 49-73, who considers that in cases where uncertainty concerning public health exists, but where the precautionary principle could not apply, EC Member states should have the freedom to prohibit the use of additives if there is no need. Advocate general Mischo does not explain in what cases where uncertainty concerning public health risks exists, the precautionary principle could not apply.
162. See, in particular, case C-344/90, Commission v. France, [1992] ECR I-4719, at 10, "an application to have an additive included on the list in question may be rejected by the competent administrative authorities only if the additive does not meet any genuine need, in particular a technological need, or presents a danger to public health".
163. See the opinion of Advocate-General Mischo in case C-95/01, Greenham and Abel, ibid., at 65.
164. See also cases Debus, at note 17 above, at 28-30.
165. See EFTA Surveillance Authority v. Norway, as note 17 above, at 27, 28.
166. Note that the case law of the ECJ on nutritional need (inter alia, Reinheitsgebot was rendered in 1987) dates from before 1992, the year the signature of the EEA Agreement took place.
167. Opinion of 12 December 2002, not yet published, at 126-128.
168. On the question of what degree of deference the WTO dispute settlement organs should respect, see Wirth, The Role of Science in the Uruguay Round and NAFTA Trade Disciplines, 27 Cornell Int'l L.J. (1994), 817, at 837.
169. See also the references in footnote 112 of Scott, "Trade and Environment in the EU and WTO", in Weiler (ed.), The EU, the WTO and the NAFTA (Oxford: Oxford University Press, 2002).
170. See, for instance, the transcript of a joint meeting with experts annexed to the report of the WTO Panel. Compare also in general the lengthy WTO Panel reports on the one hand, and the rather concise judgment of the ECJ in Reinheitsgebot on the other.
171. See, e.g., Hurst, as note 69 above, at pp. 14-15.
172. The same is in my view true for Australia - Salmon and Japan - Agricultural Products. In both cases the WTO dispute settlement organs would have found an incompatibility with the SPS Agreement, regardless of the level of deference.
173. Also insofar as WTO law is concerned, see Bloche, WTO Deference to National Health Policy: Toward an Interpretative Principle, J.I.E.L. (2002), 825-848.
174. See McNelis, The Role of the Judge in the EC and WTO: Lessons from the BSE and Hormones Cases, 4 J.I.E.L. 1 (2001), at 205-207.
175. In section VI, I discuss, inter alia, recent case law of the European Court of First Instance which, if accepted by the ECJ, seems to have brought EC law more in line with WTO law.
176. See section V.A.1 above.
177. Article 300(7) EC provides that international agreements "concluded under the conditions set out in this Article shall be binding on the institutions of the Community and on Member States".
178. The observation in the main text applies, mutatis mutandis, also to SPS measures of EC Member States affecting trade from other WTO Members.
179. See cases T-174/00 and T-210/00, Biret, 11 January 2002, not yet published, at 60-65.
180. Admittedly though, the SPS Agreement can in certain cases be indirectly applied by the European courts. Indeed, the ECJ has held that secondary EC legislation must, as far as possible, be interpreted in a manner that is consistent with international agreements, like the WTO Agreements (see for instance case C-53/96, Hermes International, (1998] ECR I-3603, at 53). Treaty conform interpretation has, however, limited effects: the ECJ can probably not declare an SPS measure of the EC legislature in violation of the SPS Agreement by means of treaty conform interpretation, since such a far reaching interpretation would be equal to granting direct effect to WTO law, which, as said, the ECJ has declined to accept.
181. See also, recently, case T-13/99, Pfizer v. Commission, 11 September 2002, not yet published, at 166. The judgment in case T-70/99, Alpharma v. Commission of the same day is to a large extent identical to Pfizer and is not discussed in this article.
182. According to Scott (as note 118 above, at p. 161) the judgment of the ECJ in Fedesa was justified because in the absence of the EC hormones ban the different approaches adopted by the EC Members towards hormones might have resulted in fragmentation of the internal market of the EC. From this point of view, the EC hormones ban would facilitate rather than impede market integration. However, I do not see why market integration in the EC could not also have been facilitated by an EC hormones measure based on a scientific basis.
183. This conclusion holds, irrespective of whether provisions of the SPS agreement can be invoked by Member States and/or other persons before the European or national courts (see, for instance, note 128 above). Pursuant to Article 300(7) EC, the EC, as a WTO Member, is bound to respect its obligations under the SPS Agreement vis-à-vis other WTO Members.
184. This is even more explicitly expressed by Advocate-General Mischo in Fedesa (see the text at note 32 above).
185. See Pardo Quintillan, as note 85 above, at pp. 187-191.
186. See also Salmon, A European Perspective on the Precautionary Principle, Food Safety and the Free Trade Imperative of the WTO, 27 E.L.R. (2002), 138-155.
187. See also Scott, as note 118 above, at p. 154;
188. see sections V.A.2 and V.B.2 above.
189. See case C-405, Mondiet, [1993] ECR I-6133, at 31.
190. Article 5.7 SPS does in my view permit WTO Members to keep an SPS measure in force as long as uncertainty as to the existence or extent of public health risk remains. The word "provisionally" in Article 5.7 SPS does not mean that the SPS measure must be of a short duration or that the SPS measure itself must indicate that it will be reviewed from time to time. This is in my view confirmed by the WTO Appellate Body in its report on Japan - Agricultural Products, at para. 93, finding that the question of what constitutes a reasonable period of time has to be answered on a case-by-case basis and depends on the specific circumstances of each case.
191. Indeed, paragraph 1 of Annex A to the SPS Agreement makes clear that only "labelling requirements directly related to food safety" are to be considered SPS measures (emphasis added) (see section II above).
192. See section II above.
193. See Pardo Quintillan, as note 85 above, at pp. 187-191.
194. See also section V.A.1 above.
195. For a short description of the procedures within the Codex Alimentarius Commission, see Marceau and Trachtman, as note 36 above, at pp. 839-840.
196. See note 104 above.
197. Admittedly, the measures that were the subject-matter of the case-law of the ECJ, as in BSE, were by nature provisional. The EC Commission has in the meantime lifted the BSE measures (see case 1/00, Commission v. France, as note 34 above, on the refusal by France to apply the EC Commission measure lifting the ban).
198. See at V.A.2 above.
199. See Communication on the Precautionary Principle, COM (2000)1, 2 February 2000.
200. The EC Commission did not define the notion of precautionary measures in the Communication, but it can be derived from the Communication that the EC Commission considers as precautionary measures that are adopted in cases where there is scientific uncertainty as to the existence or extent of public health risks.
201. See the principles pronounced by the EC Commission in para. 6.3 of its Communication, ibid.
202. See on the Communication, McNelis, EU Communication on the Precautionary Principle, J.I.E.L. (2000), 545-551, who criticizes the Communication for not placing restrictions on the use of the precautionary principle sufficient to avoid protectionist abuses.
203. For the precautionary principle in public health matters in EC law, see also case T-13/ 99, Pfizer, as 129 above, at paras 111-125.
204. See for a discussion of EC and WTO law with regard to precautionary measures, see Salmon, as note 133 above.
205. See the EC Commission's Communication on the Precautionary Principle, ibid., at para. 6.3.5.
206. See also the ECFI in Pfizer, as note 129 above, at para. 114.
207. See, for instance, Directive 2002/16 on the use of certain epoxy derivates in materials and articles intended to come into contact with foodstuffs (OJ 2002, L51/2), which in its 8th recital refers to Article 5.7 SPS.
208. See case C-149/96, Portugal v. Council, [1999] ECR I-8395, at para. 49. In that judgment, the ECJ found that, notwithstanding the lack of direct effect of WTO law, the ECJ may examine whether EC legislation is compatible with WTO law, in cases where the EC legislature intended by means of that EC legislation to implement a particular obligation assumed in the context of the WTO, or where EC legislation refers expressly to the precise provisions of the WTO Agreements.
209. See note 146 above. In the more recent case Artegodan the ECFI has defined the precautionary principle as a general principle of EC law "requiring the competent authorities to take appropriate measures to prevent specific potential risks to public health, safety and environment by giving precedence to the requirements related to the protection of those interests over economic interests".
210. See cases T-74/00, T-76/00, T-83/00 to T-85/00, T-132/00, T-137/00 and T-141/00, Artegodan, 26 November 2002, not yet published, at 184.
211. See also para. 185 of Artegodan, where the ECFI explains that prior to the recognition of the precautionary principle in the case-law of the ECJ, that principle was implicitly applied in the review of proportionality. Artegodan deals with a measure of the EC legislature dealing with certain medicinal products. The measure is not an SPS measure within the meaning of para. 1 of Annex A to the SPS Agreement (see section II above).
212. See Pfizer, as note 129 above, at 155.
213. Although Article 5.7 SPS does not explicitly prescribe that a risk assessment is carried out before an Article 5.7 SPS measure may be taken, it implies the requirement of such risk assessment by providing that the WTO Member adopting such measure "shall seek to obtain the additional information necessary for a more objective assessment of risk" (emphasis added).
214. See Pfizer, as note 129 above, at 173-406.
215. This question may have to be answered negatively in the light of the judgment of the ECJ in case C-183/ 95, Affish, [1997] ECR I-4315. In this judgment, the ECJ found in only four paragraphs that an EC Commission measure prohibiting the importation of Japanese fish into the EC was compatible with general principles of EC law. There is no sign in the Affish judgment that the ECJ was inspired by the legal obligations of the SPS Agreement, although in the national proceedings the plaintiff had based its claim on the SPS Agreement and brought the existence of these obligations to the attention of the ECJ. Since the national court did not ask a preliminary question on the SPS Agreement, the ECJ avoided any reference to the existence of the SPS Agreement in its judgment, although at that time it had not yet decided on the direct effect of the SPS Agreement (in his opinion in Affish, Advocate-General Terauso considered in paras 118-128 that the SPS Agreement had no direct effect).
216. See the text at note 131 above.
217. For a comparison between the prohibitions of fiscal discrimination in WTO law and EC law, see Slotboom, as note 1 above.
218. See also Ehlermann, Six Years on the Bench of the "World Trade Court", 36 J.W.T. 4 (2002), 605-639, at 632.