The de facto moratorium and product–specific measures at issue in the EC – Biotech case involved what amounted to an EC decision to impose a substantive marketing ban on all biotech products. Yet they were treated as involving only a procedural delay under Annex C(1)(A) of the SPS Agreement. The position reached by the Panel in EC – Biotech is surprising from a broader international legal perspective. The likely explanation for the Panel’s approach lies in the SPS Agreement’s negotiating history, and a desire to avoid calling into question the legality of prior approval procedures. However, an absolute distinction between substance and procedure is unsustainable in the longer term.
Journal of World Trade