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An interim decision by the advocate-general of the European Court of Justice has found France's 1999 mad cow disease-related ban on British beef imports "unlawful." How France reacts to this, and any subsequent rulings of the court, could have very serious implications for World Trade Organization (WTO) agricultural trade negotiations. (670 words).

Back in 1996 the European Union(EU) imposed a ban on British cattle and beef exports when BSE (bovine spongiform encephalopathy) or mad cow disease was implicated in the emergence of a new variant of Creutzfeldt-Jakob disease, a very rare but fatal human disease.

Subsequently Britain was able to negotiate terms for the lifting of this ban. They included an identity preservation Date-Based Export Scheme for tracing beef and a passport-based system for cattle identification. These measures were in essence a failsafe to supplement the British programmes for rendering of all beef from cattle over 30 months of age and the immediate slaughter of all cattle in the same age cohort in BSE infected herds. These programmes ensured no BSE infected beef entered consumption channels. By 1999 Britain had met these requirements and the EU lifted its ban in August.

France, and initially Germany, chose to ignore this EU decision. In October the EU's Scientific Steering Committee, chaired by a French man, ruled unanimously that there was no justification for the French ban. Following several unsuccessful diplomatic initiatives the EU commission started legal action against France in the European Court of Justice in January 2000.

The French position was originally based on the advice of the then newly established French Food Safety Agency which questioned the validity of the safety assurances in the British Date Based Export Scheme and the possibility of a new and unknown route for BSE infection. These had been refuted by the EU Scientific Steering Committee.

At the European Court of Justice, however, their defence changed. As it had no beef tracing system itself, the French argued, the failsafe was not effective in France. France like most other member states of the EU had neglected to set up programmes to meet a 1997 EU directive on traceability. EU case-law has established that a member state cannot claim that a EU measure is unlawful when it has failed to apply the measure itself.

Quite why the French chose this defence which they must surely have known was flawed in a case-law context will probably only emerge if and when the initial opinion is confirmed by the full Court of Justice which occurs in about 80 percent of cases, and France reacts to the final decision.

This legal ruling aside, the French persistence in this case is quite extraordinary. In 2000 at the urging of the EU, member states instituted testing for BSE which revealed that the incidence of the disease was probably higher in Europe than it was in Britain at the time. And further that as European countries had no programmes for ensuring BSE infected beef did not enter the food chain, European consumers were, therefore, almost certainly more at risk in eating their own beef than British beef.

The reality of this was that the French were excluding potentially safer beef from their markets on food safety grounds.

And the French have shown no inclination to quietly lift their ban and save further embarrassment, even though the ban means little at this time as all livestock and meat exports from Britain are subject to foot and mouth disease restrictions.

The EU has in the past been accused, and found guilty, of using food safety issues as a means of protecting domestic markets, as with the WTO dispute with North America over growth hormone fed beef. This dispute between member states of EU, however, further emphasizes the challenges for future WTO deliberations. The most serious of these is probably whether the EU can be viewed as representing its members states when it is being defied in such a flagrant manner on an issue critical to negotiations.

September 21, 2001