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The above discussion has focussed upon the hormones dispute with a view
to exemplifying the significance and nature of the SPS Agreement. It is clear
that this agreement marks an important step in the evolution of international
law regulating trade between states. It rests upon an expanded conception of
the 'basic rule', taking us beyond a discrimination based approach to
international trade, and upon a restrictive interpretation of the exception to
the rule. As regards the latter, the Agreement elaborates rules for the
application of the GATT, Article XX(b) exception. The elaboration which it
provides is both territorially restrictive (in the sense discussed above in the
veal calves case study) and epistemologically closed in its tendency to
privilege scientific rationality.
It may, however, be argued that the
AB's approach merely reflects the Agreement itself and, in particular, the very
definition of SPS measures contained therein. As noted above, this definition
is narrow. If the measure in question purports to protect the health or life of
humans, animals or plants outside of its own territory then that measure
does not fall within the scope of the definition in the Agreement. Equally,
were the measure in question to be justified on the basis of moral or ethical
considerations, rather than on the basis of a putative threat to the life or
health of humans, animals or plants, again the measure will not be classified
as being SPS in character. In either case the measure will fall for
consideration under another part of the broad WTO regime, of which the SPS
Agreement constitutes only one part. It may thus appear that criticisms of the
SPS Agreement, and of the AB's interpretative approach, which rest upon their
unwillingness to contemplate values other than those relating to life/health is
to overlook the substantive scope of the Agreement. Indeed, it was the case
that the Community did not seek to justify its measures other than in terms of
the life or health of humans. [115] It may
consequently be argued that it was the way in which the EC packaged and
presented its measures that led inexorably to the conclusions outlined above.
By claiming that the measures were necessary to protect human life/health, the
Community quite reasonably was required to demonstrate some objective basis for
this and, again quite reasonably, precluded from invoking ethical rather than
physical concerns.
While such observations based on the text of the
Agreement, and specifically the definition of SPS measures contained therein,
go some way to explaining the approach of the AB, it is nonetheless important
to recall that the AB was required to establish an evidential threshold in
order to apply its rationality test. The threshold which it constructed
requires evidence of a more than merely theoretical risk, having regard to
scientific studies focussing on the precise issue at hand. This threshold
remains the same regardless, for example, of the intensity of the theoretical
risk, and of the cultural sensibilities or filters which mediate a society's
relationship to risk. The threshold remains the same regardless of citizen
preferences, and regardless of the scale or nature of the benefits which would
be foregone as a result of measures introduced to mitigate that theoretical
risk. In essence it is the unwillingness of the AB to countenance the
possibility that an SPS measure might be rational below this threshold, having
regard to social and political culture and context, that gives rise to the
criticisms put forth in this paper. In the event that science neither proves
the existence of risk, nor proves that there is no risk, there is scope for
'rational' debate as to whether this theoretical risk should be tolerated. But
it is a debate which will inevitably transcend scientific rationality, thus
shattering the fragile illusion of objectivity and universal commenserability,
and reducing the potential for 'scientific universalism...[to be] used to
overcome the particularism of legal systems'. [116]
It is apparent from the above discussion that
the European Court exhibited greater deference than the WTO dispute setttlement
organs in reviewing the scientific basis of Council acts prohbiting hormones in
beef. [117] 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 the Article 30 EC exception (formerly Article 36).
[118] In construing this provision the
European Court has held that it is not enough for the measure in question to
claim to be necessary to protect consumer health. Thus, in the context of a
Belgian prohbition on the marketing of bread and other bakery products with a
salt content higher than the maximum laid down in domestic law, the Court found
that '[g]eneral conjecture', as to the risk posed to consumer health, does not
amount to proof of a risk for public health:
...the fact that there is a risk to consumers is sufficient to make legislation of the kind at issue compatible with the requirements of Article 36 [new Article 30]. However, the risk must be measured, not according to the yardstick of general conjecture, but on the basis of relevant scientfic research.
Hence, when the measure in question is such as to impede free movement
the Court manifests a higher propensity to assess the credibility of claims
made, and to do so on the basis of scientific rationality.
[119] Nonetheless, strict consumer
protection measures may be justified in the case of substances which are
'per se dangerous' and which generally -- as a category -- constitute a
major risk to human and animal health and to the environment.
[120] Given that there is scientific
evidence that oestrogens are carcinogenic in humans, that androgens are
probably carcinogenic, and that progestins are possibly carcinogenic, it seems
unlikely that the European Court would regard them as other than per se
dangerous. Hence while the language of science resonates both before the
European Court and the WTO organs, when it comes to evaluating justifications
for restricting trade, the qualitative threshold for establishing the existence
of risk appear to be lower in a Community context, at least in so far as
substances which are generally accepted as dangerous are concerned.
[121]
[115] Supra n. 66, para. 8.276
(panel).
[116] Joerges, C.,
'Scientific Expertise in Social Regulation and the European Court of Justice:
Legal Frameworks for Denationalized Governance Structures' in Joerges et al,
supra n. 99.
[117] Fedesa
supra n. 60. For evidence of the European Court's different approach to review
of Community measures, rather than Member State measures, see ibid.
[118] This point is stressed by the Court in
assessing the proportionality of the Community measures: 'Since the Council
committed no manifest error in that respect, it was also entitled to take the
view that, regard being had to the requirements of health protection, the
removal of barriers to trade and distortions of competition could not be
achieved by means of less onerous measures such as dissemination of information
to consumers and the labeling of meat' (supra n. 60 para. 16). See also the
opinion of the Advocate General in this case.
[119] The topic of risk before the European
Court is vast and multi-faceted, and generally beyond the scope of this paper.
See especially Vos, E., (Hart Publishing, forthcoming 1998). For a recent
example in the context of a Commission Decision prohibiting exports of beef
from the United Kingdom in the context of the BSE ('mad cow') debate, see Case
C-180/96 United Kingdom of Great Britain and Northern Ireland v.
Commission [1998] ECR I-2265. Here the European Commission was entitled
to adopt safeguard measures pursuant to powers granted by two Community
directives where there is an 'outbreak...of any zoonoses, diseases or other
cause likely to constitute a serious hazard to animals or human health'. As in
its hormones case law the Court emphasized the wide measure of discretion
enjoyed by the Commission and restricted itself to reviewing whether these the
exercise of such discretion is vitiated by a manifest error or a misuse of
powers, or whether the Commission did not clearly exceed the bounds of its
discretion. Here the European Court adopted a broadly precautionary approach in
assessing the legality of the Commission's (temporary) safeguard measures:
'Where there is uncertainty as to the existence or extent of risk to human
health, the institutions may take protective measures without having to wait
until the reality and seriousness of those risks become fully apparent' (para.
99). The language of the Court, in upholding the legality of the Commission
decision, is not dissimilar to that of the AB. It emphasized that the link
between BSE and Creutzfeldt-Jakob (CJ) disease had 'ceased to be a theoretical
hypothesis' and had become a 'possibility'. Indeed, it noted that, according to
the Spongiform Encephalopathy Advisory Committee (SEAC -- an independent
scientific body advising the UK government) 'the most likely explanation' for
CJ was exposure to BSE before the introduction of the specified ovine offal ban
in 1989 (para. 52). Later the Court speaks of a 'probable link' (para. 61). The
Court accepted that the Commission had been prompted to adopt the provisional
measures after examining the measures adopted by the UK, and after consulting
the relevant scientific committees (Scientific Veterinary Committee and the
Standing Veterinary Committee -- on which see Vos, cited above). It is
interesting to note that the scientists consulted did not merely accept that it
was impossible to prove (or disprove) the existence of a link but also that
there was no 'direct evidence of a link, on current data'. Nonetheless, SEAC
was prepared, in the absence of any credible alternative, to assert that
exposure to BSE was the most likely explanation (para. 9). This attests
extraordinarily clearly to the willingness of the European Court (c.f. the
panels or AB) to accept scientific conclusions without seeking to evaluate
qualitatively the data upon which these are premised. It also attests to the
propensity of state actors (or suprastate actors) to take stringent steps to
protect against an arguably small risk of something particularly dangerous
happening.
[120] See, especially,
Case 94/83 Criminal Proceedings against Albert Heijn BV [1984] ECR 3263,
paras. 13-17.
[121] For a more
detailed discussion of this case law see Vos, supra n. 118, Joerges, supra n.
116 and Hession & Macrory, 'Balancing Trade Freedom with the Requirements
of Sustainable Development' in Emiliou & O'Keefe, The European Union and
World Trade Law (Wiley, 1996).
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