water pollution to soil contamination. The EU therefore mirrors to a certain extent a tradeenvironment divide which is familiar to world trade since times of the GATT 1949.64 When the EC Beef65dispute was decided in 1998 it pointed to the unfortunate clash of multiple occurrences. In Europe strong opposition against hormone treated meat had already evolved in the 1980s.66 Mothers in Italy had ascertained physical abnormalities in their children after the consumption of school meals containing DES charged beef67. Their alertness was dramatically enforced by the outbreak of the mad cow disease in the several European countries which was referred to the unconcerned feed of cattle with crunched parts of their own conspecifics.68European legislators reacted soon and in 1981 passed Council Directive 81/602 according to which ‘in the interest of the consumer, the administering to any animal of stilbenes and thyrostatic substances must be prohibited.’69 The ban concerned the method of production rather than the product characteristics of the meat, a distinction which would matter in the context of the later dispute. In 1985 the EU supplemented its ban through a further Directive after consultation with the Scientific Committee for Food and the European Parliament; the Directive, when becoming effective in 1989 affected US exports of beef offal in the value of $100.70 The US had already attempted to hold the ban off under principles of the Standards Code71 which in essence anticipated claims later tightened under the SPS Agreement: there was no scientific justification for the ban which created unnecessary and disguised barriers to trade. As the EU refused to bring the case before a panel, the US imposed 100 per cent duties on food imports from Europe to the US which were answered by European retaliations against US exports, all this happening in the course of the Uruguay negotiations. After the conclusion of the Marrakesh Agreement hormone containing products were considered to be safe by scientists during a conference in Brussels72and were followed by the filing of a complaint by Canada and the US against the still resistant EU in 1996. One year later the WTO found the EU in violation of Art 3:1, 3:3, 5:1 and 5:5 of the SPS Agreement and imposed 116 million Euros retaliation costs on the defending party. Among the most important outcomes of the case was the interpretation of the precautionary principle which was not accepted as self-standing
64
Daniel C. Esty, ‘Bridging the Trade and Environment Divide’ (2001) 15 Journal of Economic perspectives 3 113-130; see also Joanne Scott, ‘International Trade and Environmental Governance: Relating Rules (and Standards) in the EU and the WTO’ (2004) 15 EJIL 2 307-354. 65 Echols (n 50). 66 However, ‘from the 1960s through the mid 1980s, the regulation of health, safety and environmental risks was generally stricter in the United States than in Europe’; Diahanna Lynch and David Vogel, ‘The Regulation of GMOs in Europe and the United States: A Case-Study of Contemporary European Regulatory Politics’, (Council on Foreign Relation, Press Release 5 April 2001) <http://www.cfr.org/genetically-modifiedorganisms/regulation-gmos> accessed 9 June 2012. 67 US Foreign Agricultural Service for a chronology of the EC ban and further information to agricultural exports, <http://www.fas.usda.gov/> accessed on 30 June 2012. 68 Richard Lacey, ‘Mad Cow Disease: The History of BSE in Britain’ (Cypsela Pub.Ltd; Jersey, Channel Islands 1994). 69 Council Directive 81/602/EEC of 31 July 1981 Concerning the Prohibition of Certain Substances having a Hormonal Action and of any Substances having a Thyrostatic Action; see also Echols (n 48) 46. 70 Echols, 45-52. 71 The Standard Code had been concluded under the Tokyo Round in 1973; 72 The conference was sponsored by the EC and involved 90 scientists from several countries, supra 48, p 49.
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