Update – Sweden’s Request to Ban American Lobster in the EU Risks Violating the Rules of the WTO

by King & Spalding
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In July 2016, we reported that the Swedish Government had requested that the European Union impose a ban on imports of U.S./Canadian live lobster (Homarus americanus). Sweden argues that Homarus americanus should be designated an “alien invasive species” under EU law because it is not native to the EU, it poses serious risks to European lobsters through the spreading of disease, and because once the American lobster is established, it will be impossible to eradicate.

An expert group of the European Commission’s Directorate of Environment, the Scientific Forum on Invasive Alien Species, has assessed Sweden’s request in terms of the sufficiency of the scientific evidence presented. In September 2016, it confirmed the validity of the risk assessment and found there was enough evidence to move forward with a full scientific review of Sweden’s request. This broader review of the request to ban live American lobster in the EU is expected to be completed by spring 2017, at the earliest. If that review approves the request, the motion would go to the full European Commission for a final vote.

As we noted previously, if the EU decides to adopt the ban, the U.S./Canada are likely going to argue under the law of the World Trade Organization (WTO) that the ban lacks a sufficient scientific basis, that it is not apparent that live lobster from the U.S./Canada are a risk to EU biodiversity, and that the proposed ban would be completely disproportionate. The EU will likely seek refuge behind the risk that exists and the uncertainty about the potential effect of the invasion of this species of lobster, relying specifically on the precautionary principle, as reflected in Article 5.7 of the WTO SPS Agreement, among others.

It is doubtful, however, that the EU could successfully rely on this principle. Sweden/EU do not seem to propose a temporary ban while more evidence is being gathered. Rather, Sweden/EU suggest that sufficient scientific evidence exists of the risk posed by the presence of American lobster in the territorial waters of the European Atlantic coast. In such a situation, the precautionary principle seems less relevant and it must be examined whether the measure is indeed supported by sufficient scientific evidence, and whether an objective risk assessment has been conducted that supports the particular measure. The basic principle of WTO law is that each Member can set its own appropriate level of protection, and thus even a zero-risk level is possible.

However, even if a Member is free to set its own level of risk, measures may not be disproportionate to the risk in question. Thus a measure maintained without sufficient scientific evidence violates Article 2.2 of the SPS Agreement if it is completely disproportionate to the risk identified by the scientific evidence in question. The EU ban on American lobster, based on the risk allegedly posed by 32 lobsters that escaped during transportation, would seem to require the WTO to look very carefully at the proportionality of the measure to determine whether it is maintained without sufficient scientific evidence as well as examining the necessity of the measure in light of alternative measures, such as stricter controls on transportation of live lobsters and more effective enforcement of existing relevant laws and regulations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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