Abstract
This introductory chapter explains the anomaly in assessments of the SPS Agreement that prompted further investigation into its impact on EU food regulations: the view of legal commentators that the regime significantly intrudes on domestic policy-making and the common understanding of EU officials that its influence is marginal. The chapter provides context for the analysis that follows, briefly introducing the Agreement, its origins, provisions and key implications for national regulators and outlining the legal and political context in which European food regulators operate. It then familiarises the reader with two important international venues for the development of food norms: the WTO Committee on Sanitary and Phytosanitary Measures and Codex Alimentarius. It concludes with an outline of the structure of the book and provides some guidance to readers.
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Notes
- 1.
Agreement on the Application of Sanitary and Phytosanitary Measures, opened for signature 15 April 1994, 1867 UNTS 493 (entered into force 1 January 1995) (SPS Agreement).
- 2.
J Peel, ‘Review: Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement. By Lukasz Gruszczynski’ (2011) 23 Journal of Environmental Law 157.
- 3.
J Madeley, ‘There’s a Food Fight in Seattle’ New Statesman (22 November 1999) www.newstatesman.com/node/136187.
- 4.
For examples of proposals for revising the SPS Agreement, see n 78 in Chap. 3 below.
- 5.
There is some evidence of this, for example, in Codex Alimentarius meetings on food additives, in which EU representatives have recently started to adopt norms with a caveat (known as ‘note 161’) that accepts international standards only ‘subject to national legislation’. See Codex Alimentarius Commission Document ALINORM 10/33/12, para 70–75. For a detailed discussion, see C Downes, ‘Only a Footnote? The Curious Codex Battle for Control of Additive Regulations’ (2012) 7 European Food and Feed Law Review 232.
- 6.
See, e.g. L Gruszczynski, Regulating Health and Environmental Risks under WTO Law: A Critical Analysis of the SPS Agreement (Oxford, OUP, 2010) 273 (concluding that ‘the SPS Agreement is actually able to provide a workable mechanism that seriously takes into account the complex nature of science and scientific risk assessment and does not compromise the legitimate regulatory choices of WTO members’); B Mercurio and D Shao, ‘A Precautionary Approach to Decision Making: The Evolving Jurisprudence on Article 5.7 of the SPS Agreement’ (2010) 2 Trade Law and Development 195, 223 (noting that the Agreement ‘is capable of being flexibly interpreted so as to both protect policy space and national regulations and at the same time protect against creeping protectionism’); S Cho, ‘International Decisions, United States—Continued Suspension of Obligations in the EC—Hormones’ (2009) 103 AJIL 299, 302 (pointing to the Appellate Body’s (AB) ‘ostensible effort to broaden a regulating member’s policy space’). Others remain doubtful. See, e.g. J Peel, ‘Of Apples and Oranges (and Hormones in Beef): Science and the Standard of Review in WTO Disputes under the SPS Agreement’ (2012) 61 ICLQ 47 (pointing to the intrusive nature of the AB’s approach in Australia—Apples subsequent to the US—Continued Suspension dispute).
- 7.
See Gruszczynski (n 6) 274 (noting that ‘the impact of the SPS Agreement on the practice of WTO Members definitely merits a separate and detailed study’).
- 8.
See T Epps, International Trade and Health Protection (Cheltenham, Edward Elgar, 2008) 17 (providing an interesting history of some of these disputes).
- 9.
Agreement on Technical Barriers to Trade, 12 April 1979, 1186 UNTS 276, GATT, BISD, 26th Supp 8 (1980).
- 10.
SJ Rothberg, ‘From Beer to BST: Circumventing the GATT Standards Codes Prohibition on Unnecessary Obstacles to Trade’ (1990) 75 Minnesota Law Review 505, 516–517.
- 11.
DG Victor, ‘The Sanitary and Phytosanitary Agreement of the World Trade Organisation: An Assessment After Five Years’ (2000) 32 New York University Journal of International Law and Politics 865, 874.
- 12.
GATT, Ministerial Declaration of Uruguay Round (GATT Doc MINDEC 20 September 1986), s D, Agriculture, iii (setting the aim of ‘minimizing the adverse effects that sanitary and phytosanitary regulations and barriers can have on trade in agriculture, taking into account the relevant international agreements’).
- 13.
GATT Doc MTN.GNG/NT5/WGSP/2 (14 November 1988) para 12. The prominent differences in European and US thinking on the use of growth hormones in meat were undoubtedly a factor in this decision. See DA Wirth, ‘The Role of Science in the Uruguay Round and NAFTA Trade Disciplines’ (1994) 27 Cornell International Law Journal 817, 823–824.
- 14.
Agreement on Technical Barriers to Trade, opened for signature 15 April 1994, 1868 UNTS 120 (entered into force 1 January 1995).
- 15.
TP Stewart, The GATT Uruguay Round: A Negotiating History (1986–1994) (The Hague, Kluwer Law International, 1999) 41. See also J Croome, Reshaping the World Trading System: A History of the Uruguay Round (Geneva, WTO Secretariat, 1995) 235–237.
- 16.
For simplicity, and at the risk of anachronism, the name ‘European Union’ (abbreviated to ‘EU’) will be used throughout this book, although until December 2009, and the entry into force of the Lisbon Treaty, the European Communities (EC) was the formal Member of the WTO. The same approach will be adopted when discussing regulatory developments predating the existence of the European Union.
- 17.
Drezner, for example, claims that ‘the SPS Agreement was a low-priority issue for the European Union during the Uruguay round’ and ‘was not a major player in the SPS negotiations’. DW Drezner, All Politics Is Global: Explaining International Regulatory Regimes (Princeton, Princeton University Press, 2008) 162–163.
- 18.
See MTN.GNG/NT5/WGSP/1 (28 October 1988).
- 19.
At a key moment in discussions, the EU was facing restrictions on exports of wine to the US due to the presence of the pesticide procymidone. As Codex was in the process of adopting a residue limit for the pesticide, the EU keenly understood the potential benefits of reinforcing the role of international standards in the new agreement. See D Prévost and P van den Bossche, ‘The Agreement on the Application of Sanitary and Phytosanitary Measures’ in PFJ Macrory, AE Appleton and MG Plummer (eds), The World Trade Organization: Legal, Economic and Political Analysis (Berlin, Springer, 2005) 243.
- 20.
Stewart (n 15) 42.
- 21.
See H Rowen, ‘Are Food Imports Safe?’ Washington Post (31 May 1990).
- 22.
See Epps (n 8) 27.
- 23.
See discussion in chaps. 4 and 5 below.
- 24.
As the focus in this study is on food policy, provisions specifically oriented towards plant or animal health (such as SPS Agreement Art 6 relating to pest- or disease-free areas) are not considered.
- 25.
The AB has vented its frustration about the difficulties in interpreting some aspects of the Agreement. See EC—Measures concerning Meat and Meat Products (Hormones), Appellate Body Report (adopted 16 January 1998) WT/DS26/AB/R, WT/DS48/AB/R, para 175 (in which the AB noted that ‘Article 3.3 is evidently not a model of clarity in drafting and communication’).
- 26.
For the fullest and most up-to-date analysis at the time of writing, see Gruszczynski (n 6).
- 27.
Australia—Measures Affecting Importation of Salmon (Australia—Salmon), Appellate Body Report (adopted 20 October 1998) WT/DS18/AB/R, para 199.
- 28.
Australia—Salmon, Appellate Body Report, para 125.
- 29.
Hormones, Appellate Body Report, para 172.
- 30.
Australia—Salmon, Appellate Body Report, para 205.
- 31.
Australia—Salmon, Appellate Body Report, para 197 (in which Australia characterised its appropriate level of protection as ‘very conservative’, whereas the prohibition in place ensured ‘zero risk’).
- 32.
Australia—Salmon, Appellate Body Report, para 203. However, if the Member has failed to sufficiently determine its level of protection, this may be inferred from the measure actually applied. See paras 206–207.
- 33.
Hormones, Appellate Body Report, para 193.
- 34.
Hormones, Appellate Body Report, para 194.
- 35.
Hormones, Appellate Body Report, para 200 (in which the general studies demonstrating an overall risk of cancer associated with hormones were not found to be an adequate basis for the EU’s restrictions) and Japan—Apples, Appellate Body Report, para 202 (finding the ‘general discussion’ of fire blight in Japan’s risk assessment not to constitute risk assessment within the meaning of Art 5.1).
- 36.
Japan—Measures Affecting Agricultural Products, Appellate Body Report (adopted 22 February 1999) WT/DS76/AB/R, para 84.
- 37.
Hormones, Appellate Body Report, para 187.
- 38.
Hormones, Appellate Body Report, para 190.
- 39.
Hormones, Appellate Body Report, para 187.
- 40.
United States/Canada—Continued Suspension of Obligations in the EC—Hormones Dispute (US—Continued Suspension), Appellate Body Report (adopted 31 March 2008) WT/DS320/R, WT/DS321/R, paras 534 and 685.
- 41.
Hormones, Appellate Body Report, para 186.
- 42.
It is not sufficient, under Art 5.1, to undertake just some evaluation of the likelihood of the spread of disease, as Australian quarantine authorities were considered to have done in Australia—Salmon, if this evaluation leads only to ‘general and vague statements’. Australia—Salmon, Appellate Body Report, para 129.
- 43.
Japan—Measures Affecting the Importation of Apples, Appellate Body Report (adopted 26 November 2003) WT/DS245/AB/R, para 185.
- 44.
US—Continued Suspension, Appellate Body Report, para 677.
- 45.
US—Continued Suspension, Appellate Body Report, paras 695–696. In this case, the Panel had held that there is a need for a Member to bring forward a ‘critical mass’ of scientific evidence in order to demonstrate that previously sufficient scientific information is now insufficient. However, the AB ruled (at para 705) that the threshold implied, equivalent to a ‘paradigm shift’, was far too ‘inflexible’.
- 46.
US—Continued Suspension, Appellate Body Report, para 677.
- 47.
A conforming measure is one that ‘would embody an international standard completely and, for practical purposes, converts it into a municipal standard’. Hormones, Appellate Body Report, para 170.
- 48.
Hormones, Appellate Body Report, para 163.
- 49.
Hormones, Appellate Body Report, para 177.
- 50.
For a detailed discussion, see Gruszczynski (n 6) 96–100.
- 51.
Hormones, Appellate Body Report, para 102.
- 52.
Pauwelyn’s assessment of the SPS regime is exemplary in this respect, highlighting the significant aspects of the text, describing dispute-settlement findings and explaining the implications of the latter for an understanding of the Agreement’s provisions. J Pauwelyn, ‘The WTO Agreement on Sanitary and Phytosanitary (SPS) Measures As Applied in the First Three SPS Disputes’ (1999) 2 JIEL 641. For this type of evaluation of Codex Alimentarius, see TP Stewart and DS Johanson, ‘The SPS Agreement of the World Trade Organisation and International Organisations: The Roles of the Codex Alimentarius Commission, International Plant Protection Convention, and International Office of Epizootics’ (1999) 26 Syracuse Journal of International Law and Commerce 27.
- 53.
Pauwelyn emphasises that ‘no attempt is made to critically assess what has been decided [in dispute settlement]’. Pauwelyn (n 52) 642.
- 54.
For discussion of the EC—Biotech dispute, see S Poli, ‘The EC’s Implementation of the WTO Ruling in the Biotech Dispute’ (2007) 32 EL Rev 705; S Lester and D Bodansky (ed), ‘International Decisions: European Communities-Measures Affecting the Approval and Marketing of Biotech Products’ (2007) 101 AJIL 453. On the Hormones dispute, see D Wüger, ‘The Never-Ending Story: The Implementation Phase in the Dispute between the EC and the United States on Hormone-Treated Beef’ (2002) 33 Law and Policy in International Business 777.
- 55.
See, e.g. JMM Akech, ‘Developing Countries at Crossroads: Aid, Public Participation, and the Regulation of Trade in Genetically Modified Foods’ (2006) 29 Fordham International Law Journal 265; AE Appleton, ‘The Labelling of GM Products Pursuant to International Trade Rules’ (2000) 8 New York University Environmental Law Journal 566; C Carlarne, ‘From the USA with Love: Sharing Home-Grown Hormones, GMOs, and Clones with a Reluctant Europe’ (2007) 37 Environmental Law 301.
- 56.
See PXF Cai, ‘Between Intensive Care and the Crematorium: Using the Standard of Review to Restore Balance to the WTO’ (2007) 15 Tulane Journal of International and Comparative Law 465 (discussing SPS jurisprudence at length in a study of the standard of review in the WTO dispute settlement process).
- 57.
J Atik, ‘Science and International Regulatory Convergence’ (1996) 17 Northwestern Journal of International Law and Business 736 (on the role of science in regulation).
- 58.
D Kalderimis, ‘Problems of WTO Harmonisation and the Virtues of Shields over Swords’ (2004) 13 Minnesota Journal of Global Trade 305, 326 (emphasis added).
- 59.
J Peel, ‘A GMO by Any Other Name… Might be an SPS Risk!: Implications of Expanding the Scope of the WTO Sanitary and Phytosanitary Measures Agreement’ (2006) 17 EJIL 1009, 1011 (emphasis added).
- 60.
BA Silverglade, ‘The WTO Agreement on Sanitary and Phytosanitary Measures: Weakening Food Safety Regulations to Facilitate Trade?’ (2000) 55 Food and Drug Law Journal 517.
- 61.
MD Carter, ‘Selling Science under the SPS Agreement: Accommodating Consumer Preference in the Growth Hormones Controversy’ (1997) 6 Minnesota Journal of Global Trade 625, 655.
- 62.
J Bohanes, ‘Risk Regulation in WTO Law: A Procedure-Based Approach to the Precautionary Principle’ (2002) 40 Columbia Journal of Transnational Law 323, 356. See also O Aginam, ‘Food Safety, South-North Asymmetries and the Clash of Regulatory Regimes’ (2007) 40 Vanderbilt Journal of Transnational Law 1099, 1111 (claiming that WTO Members ‘are often compelled to abandon the obligations they undertook in other pre-existing international regimes’); A Szajkowska, Regulating Food Law: Risk Analysis and the Precautionary Principle as General Principles of EU Food Law (Wageningen, Wageningen Academic Publishers, 2012) 59 (arguing that ‘the system of trade rules aims to limit discretion as much as possible’).
- 63.
LM Wallach, ‘Accountable Governance in the Era of Globalization: The WTO, NAFTA, and International Harmonization of Standards’ (2002) 50 University of Kansas Law Review 823, 827; DG Victor (n 11) 937 (claiming that the policy-maker’s ‘freedom is constrained’); See also G Skogstad, ‘Internationalization, Democracy, and Food Safety Measures: The (Il)Legitimacy of Consumer Preferences’ (2001a) 7 Global Governance 293, 295 (noting that ‘[t]he EU, in particular, finds compromised its policy autonomy and its capacity to render governments accountable’).
- 64.
AO Sykes, ‘Domestic Regulation, Sovereignty, and Scientific Evidence Requirements: A Pessimistic View’ (2002) 3 Chicago Journal of International Law 353, 368.
- 65.
RA Pereira, ‘Why Would International Administrative Activity Be Any Less Legitimate?—A Study of the Codex Alimentarius Commission’ (2008) 9 German Law Journal 1693.
- 66.
S Keane, ‘Can the Consumers’ Right to Know Survive the WTO: The Case of Food Labelling’ (2006) 16 Transnational Law and Contemporary Problems 291, 331.
- 67.
D Schramm, ‘The Race to Geneva: Resisting the Gravitational Pull of the WTO in the GM Labelling Controversy’ (2007) 9 Vermont Journal of Environmental Law 93, 125.
- 68.
AT Guzman, ‘Food Fears: Health and Safety at the WTO’ (2004) 45 VJIL 1, 26.
- 69.
Shramm (n 67) 110.
- 70.
Aginam (n 62).
- 71.
A Arcuri, ‘Food Safety at the WTO after Continued Suspension’ in A Antoniadis, R Schütze and E Spaventa (eds), The European Union and Global Emergencies–A Law and Policy Analysis (Oxford, Hart Publishing, 2011). This echoes the language of Kalderimis who defines the defence of values in the SPS regime in terms of ‘swords and shields’. Kalderimis (n 58).
- 72.
D Winickoff et al., ‘Adjudicating the GM Food Wars: Science, Risk, and Democracy in World Trade Law’ (2005) 30 YJIL 81, 93.
- 73.
Guzman (n 68) 24.
- 74.
HS Shapiro, ‘The Rules That Swallowed the Exceptions: The WTO SPS Agreement and its Relationship to GATT Articles XX and XXI’ (2007) 24 Arizona Journal of International and Comparative Law 199, 212.
- 75.
MG Bloche, ‘WTO Deference to National Health Policy: Towards an Interpretive Principle’ (2002) 5 JIEL 825, 827.
- 76.
See Cai (n 56) 538 (describing the ‘generalised sense of outrage from thwarted sovereignty’).
- 77.
See, e.g. A Alemanno, Trade in Food: Regulatory and Judicial Approaches in the EC and the WTO (London, Cameron May, 2007) Chap. 1; BMJ van der Meulen, ‘The System of Food Law in the European Union’ (2009b) 14 Deakin Law Review 305, 313–320; RK O’Rourke, European Food Law (London, Sweet and Maxwell, 3rd edn, 2005); D Holland and H Pope, EU Food Law and Policy (The Hague, Kluwer Law International, 2004). Although this characterisation fairly reflects the overall trend, it underplays the attention paid to consumer health issues in the early years. See, e.g. D Welch, ‘From “Euro Beer” to “Newcastle Brown”, A Review of European Community Action to Dismantle Divergent “Food” Laws’ (1983) 22 JCMS 47 (describing a 1976 Directive on eruric acid with entirely health-related aims).
- 78.
Of the around 50 vertical directives on different food sectors envisaged between 1969 and 1973, only 14 had been adopted by 1985. European Commission, ‘Completion of the Internal Market: Community Legislation of Foodstuffs’ (‘Completion of Internal Market’), COM(85) 603 final, 3.
- 79.
See Alemanno (n 77) 53 and Welch (n 77) 57.
- 80.
European Commission, ‘Completion of Internal Market’ (n78) 5.
- 81.
Case 120/78, Rewe-Zentrale AG [1979], para 14. For comments on the implications of this case, see Alemanno (n 77) 39–42. Notwithstanding the importance of Cassis de Dijon, the principles articulated must be seen as the culmination of previous ECJ judgements and ‘not a revolutionary case’. Welch (n 77) 62.
- 82.
Alemanno (n 77) 57.
- 83.
The Single European Act [1987] OJ L169/1, Art 100A.
- 84.
E Vos, ‘EU Food Safety Regulation in the Aftermath of the BSE Crisis’ (2000) 23 Journal of Consumer Policy 227, 231.
- 85.
Among the failings identified were: inadequate scientific resources, inappropriate political pressure from the UK government, uncoordinated responses between various Commission directorates, and a Commission ‘policy of disinformation’. European Parliament, ‘Report on alleged contraventions or maladministration in the implementation of Community law in relation to BSE, without prejudice to the jurisdiction of the Community and national courts’ (A4-0020/97, 7 February 1997) in particular s A.I.C.
- 86.
European Commission, ‘Commission Green Paper: The General Principles of Food Law in the European Union’, COM (97) 176.
- 87.
O’Rourke (n 77) 6–7.
- 88.
European Commission, ‘White Paper on Food Safety’, COM (1999) 719 final.
- 89.
Chalmers notes that BSE-related failure ‘was to achieve what years of harmonisation of laws had failed to manage. A new European politics of risk emerged’. D Chalmers, ‘“Food for Thought”: Reconciling European Risks and Traditional Ways of Life’ (2003) 66 MLR 532, 534. See also Holland and Pope (n 77) 21 (describing the Commission’s vigorous pursuit of its White Paper timetable).
- 90.
Regulation (EC) 178/2002 of the European Parliament and of the Council 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 L31/1 (GFL).
- 91.
GFL, Art 5.
- 92.
GFL, Arts 17, 19 and 20.
- 93.
GFL, Art 6 (on risk analysis) and Chap. III (on EFSA).
- 94.
GFL, Art 7.
- 95.
GFL, Art 18.
- 96.
GFL, Chap. III, s 4.
- 97.
For example, one of the most notorious areas of non-harmonisation remains food supplements, but the Commission has initiated no new regulatory measures to address this failing. See European Commission, ‘Staff Working Document—Situation in the Different Sectors’, Accompanying Document to the Report from the Commission 27th Annual Report on Monitoring the Application of EU Law (SEC (2010) 1144) 386–387, ec.europa.eu/eu_law/docs/docs_infringements/annual_report_27/sec_2010_1143_en.pdf.
- 98.
GFL, Chap. IV, s 1.
- 99.
G Skogstad, ‘The WTO and Food Safety Regulatory Policy Innovation in the European Union’ 39 JCMS (2001) 485, 498.
- 100.
The closest the GFL comes to doing so is a recognition that the EU ‘supports the principles of free trade in safe feed and safe, wholesome food in a non-discriminatory manner’. GFL, rec 23.
- 101.
SPS Agreement Art 4. However, the EU can be considered somewhat to have diluted SPS obligations in this respect. See n 31 in Chap. 3 below.
- 102.
See, e.g. B van der Meulen, ‘Science Based Food Law’ (2009a) 1 European Food and Feed Law Review 58, 61 (noting ‘that little doubt can exist that [SPS Agreement Art 5] has served the EU legislature as an example’). A concrete example is the definition of food, which is drawn from the Codex definition. See van der Meulen (n 77) 323.
- 103.
Alemanno (n 77) 404. The relationship between SPS rules and non-scientific considerations will be treated at length in Chap. 4.
- 104.
The Commission was far from timid in its strategy on this point: ‘[T]he Community has the objective to clarify and strengthen the existing WTO framework for the use of the precautionary principle in the area of food safety, in particular with a view to finding an agreed methodology for the scope of action under that principle.’ ‘Commission White Paper on Food Safety’ (n 12) para 110.
- 105.
For an overview of the differences between the two, see Alemanno (n 77) pt IV.
- 106.
Member States have been unusually willing to relinquish national power over food policy. See O’Rourke (n 77) 9 (pointing in particular to the benefits for Member States of not being ‘placed in the “firing line” by irate consumers concerned that they have put their health at risk’). For this reason, and given that harmonisation of foodstuffs is now highly advanced, it is legitimate to reflect, as Part II below will do, upon the impact of SPS law on EU policy objectives writ large rather than at a Member-State level.
- 107.
B van der Meulen, ‘The Global Arena of Food Law: Emerging Contours of a Meta-Framework’ (2010) 3 Erasmus Law Review 217.
- 108.
This has become the standard practice, although the Committee rules foresee a minimum of two meetings per year. WTO Document G/SPS/1 (4 April 1995) para 4.
- 109.
The standards setting bodies—Codex Alimentarius, International Plant Protection Convention (IPPC) and World Organization for Animal Health (OIE)—have a ‘close working relationship’ with the Committee, while other bodies such as the Agency for International Trade Information and Cooperation or the West African Economic and Monetary Union are invited on an ad hoc basis. See G/L/943, para 10–11 (11 November 2010).
- 110.
G/SPS/7/Rev.3 (20 June 2008).
- 111.
G/SPS/GEN/804/Rev.6 (7 October 2013) para 2.2.
- 112.
ibid para 3.3.
- 113.
25 % of all regular notifications have been made by the US alone, while 33 % of Members have failed to submit any notification at all. See ibid para 15 and Table 1 respectively.
- 114.
RH Steinberg, ‘The Hidden World of WTO Governance: A Reply to Andrew Lang and Joanne Scott’ (2009) 20 EJIL 1063, 1064 (criticising the failure of Lang and Scott to weigh up ‘the possibility that committee representatives may be strategically providing incomplete or inaccurate information’). Chap. 6 s 6.2 below provides some insights into the EU’s behaviour in this respect.
- 115.
For a discussion of equivalence, see Chap. 6, s 6.3 below.
- 116.
The public part of this system is accessible via spsims.wto.org.
- 117.
G/SPS/53 (3 May 2010) para 90.
- 118.
ibid para 92 (noting also that the resolution of other issues may have occurred without being reported to the Committee).
- 119.
Disscussions relating to the implementation of SPS Agreement Art 12.2 have advanced, but the discussed procedure has not yet been adopted by the Committee. See G/SPS/W/259/Rev.7 (9 September 2013) for the latest recommendation.
- 120.
Through this process, Members ‘arrive at settled (though not necessarily authoritative from the point of view of dispute settlement bodies) understandings’. J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures. A Commentary (Oxford, OUP, 2007) 54.
- 121.
SPS Agreement Art 12.1.
- 122.
The pressure to fulfil this function is maintained through a built-in obligation (foreseen under Art 12.7) to review the operation of the Agreement. In April 2010, the Committee completed its third review in just over a decade. See generally G/SPS/53 (n 117).
- 123.
G/SPS/33 (2 November 2004).
- 124.
G/SPS/15 (18 July 2000).
- 125.
G/SPS/19 (26 September 2001).
- 126.
See ns 13–18 in Chap. 2 below and related text.
- 127.
Consider, most significantly, the approach of the Panel in US—Poultry, who noted that while the SPS Committee’s Decision on Equivalence is not binding, ‘we do consider that this Decision expands on the Member’s own understanding of how Article 4 relates to the rest of the SPS Agreement and how it is to be implemented’). United States—Certain Measures Affecting Imports of Poultry from China, Panel Report (adopted 29 September 2010) WT/DS392/R, para 7.136.
- 128.
See generally G/SPS/W/82 (23 June 1997).
- 129.
G/SPS/11/Rev.1 (15 November 2004) para 6.
- 130.
G/SPS/25 (1 July 2003) para 4.
- 131.
Between 2009 and 2012, for example, only one issue was referred to the Committee under the procedure, and even the legitimacy of this issue was questioned, as concerning regional rather than international standards. See G/SPS/54 (3 November 2010) para 15.
- 132.
For example, in a case involving Sri Lanka’s exports of cinnamon to the EU, the absence of a Codex Standard on sulphur dioxide was identified as the cause of trade disruption and the Committee’s requests to Codex on this issue were undoubtedly instrumental in resolving this dispute. See G/SPS/42 (4 August 2006) paras 4–9.
- 133.
A workshop on the relationship between the SPS Committee and the international standard-setting organisations held in October 2009 highlighted these issues. See the summary report G/SPS/R/57 (22 February 2010).
- 134.
The EU has proposed the creation of a ‘new inventory mechanism’ using information garnered by the new notification format. See G/SPS/GEN/970 (21 October 2009) para 8.
- 135.
G/SPS/GEN/521/Rev.8 (4 March 2013) para 4.
- 136.
The Committee’s training efforts are aimed at ‘those with responsibilities in the food safety, animal health or plant protection area within their national administrations…and other officials responsible for coordination of WTO trade issues and SPS matters within their governments.’ G/SPS/GEN/521/Rev.5 (8 March 2010) para 9.
- 137.
See the Report of the Joint FAO/WHO Conference on Food Standards held in October 1962, which established the framework for Codex’s work (ALINORM 62/8) 5.
- 138.
See, Joint FAO/WHO Food Standards Program, Codex Alimentarius Commission Procedural Manual (Rome, FAO/WHO, 19th edn, 2010) (Codex Manual) 6.
- 139.
As Masson-Matthee points out, Codex Alimentarius Decisions are not submitted to the FAO and WHO although formally required to do so under the statutes, allowing the Commission to proceed on the basis of Member agreement. MD Masson-Matthee, The Codex Alimentarius Commission and its Standards (The Hague, TMC Asser Press, 2007).
- 140.
For an explanation of the EU’s complex internal process of coordinating Codex positions, see ML Maier, ‘The Regulatory State Goes Global: EU Participation in International Food Standard-Setting by the Codex Alimentarius Commission’ (GARNET conference on ‘The European Union in International Affairs’, Brussels, April 2008) papers.ssrn.com/sol3/papers.cfm?abstract_id=1567705.
- 141.
An updated list of Members is available at www.codexalimentarius.net/web/organizations.jsp.
- 142.
Criticism of the underrepresentation of consumer interests in the Codex Committees has been a consistent theme of the literature on Codex. See, e.g. E Smythe, ‘In Whose Interests? Transparency and Accountability in the Global Governance of Food: Agri-Business, the Codex Alimentarius and the World Trade Organization’ in J Clapp and DA Fuchs (eds), Corporate Power in Global Agrifood Governance (Cambridge, MA, MIT Press, 2009) 98–99.
- 143.
An evaluation of the body undertaken in 2002 based on responses of Codex participants found that international NGO’s involvement in decision-making was ‘about right’. WB Traill et al., ‘Report of the Evaluation of the Codex Alimentarius and Other FAO and WHO Food Standards Work’ (Rome, FAO/WHO, 15 November 2002) www.fao.org/docrep/meeting/005/y7871e/y7871e00.htm.
- 144.
See Codex Manual (n 138) 17 (General Principles of the Codex Alimentarius) para 1.
- 145.
However, as described above (see n 132), the SPS Committee will occasionally flag up issues deemed to be requiring attention by Codex.
- 146.
Codex Manual (n 138) 4 (Statutes of the Codex Alimentarius Commission) Art 1(c) and (d).
- 147.
Codex Manual (n 138) 9 (Rules of Procedure) Rule V.
- 148.
They include various types of committees: general subject committees (dealing with specific areas of food law, such as food labelling or pesticide residues), commodity committees (responsible for single products such as fruit or fish), coordinating committees (aimed at promoting issues specific to a given region) and ad hoc intergovernmental taskforces (assigned a specific task on a temporary basis, such as antimicrobial resistance). The review of active and dissolved committees can be found at www.codexalimentarius.net/web/committees.jsp.
- 149.
Codex Manual (n 138) 5 (Statutes of the Codex Alimentarius Commission) Art 9.
- 150.
Codex Manual (n 138) 14 (Rules of Procedure of the Codex Alimentarius Commission) Rule XII.
- 151.
The exception to this trend was a vote on the labelling of Emmental cheese in 2007. See DE Winickoff and DM Bushey, ‘Science and Power in Global Food Regulation: The Rise of the Codex Alimentarius’ (2010) 35 Science, Technology and Human Values 356.
- 152.
Codex Manual (n 138) 22 (General Principles of the Codex Alimentarius, Procedures for the Elaboration of Codex Standards and Related Texts) Introduction.
- 153.
This view is based on personal experience as Observer to meetings of the Codex Committee on General Principles in 2002 and 2004.
- 154.
See discussion of Codex’s work on food supplements in Chap. 7, s 7.4 below.
- 155.
Many of the case studies analysed in Parts II and III below have benefited from the insights of officials involved in the relevant dossiers. However, arguments are supported by citation of publicly available documents as far as possible.
- 156.
Indeed, Jacqueline Peel has highlighted the seemingly different approach or ‘double standard’ taken by the Appellate Body when faced with human health or quarantine risk issues. Peel (n 6) 449–452.
- 157.
See, e.g. SJ Henson, ‘The Role of Public and Private Standards in Regulating International Food Markets’ (2008) 4 Journal of International Agricultural Trade and Development 63; L Fulponi, ‘Private Voluntary Standards in the Food System: The Perspective of Major Food Retailers in OECD Countries’ (2006) 31 Food Policy 1. ‘SPS-related private standards’ has now become a regular discussion point in SPS Committee meetings, see e.g. G/SPS/R/70 (8 May 2013) 23–24; G/SPS/R/71 (28 August 2013) 19–20.
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Downes, C. (2014). Introduction. In: The Impact of WTO SPS Law on EU Food Regulations. Studies in European Economic Law and Regulation, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-04373-9_1
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