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VI. Article 5 back to top
A. Text of Article
5
Article 5: Assessment of Risk and Determination of the
Appropriate Level of Sanitary or Phytosanitary Protection
1. Members shall ensure that their sanitary or
phytosanitary measures are based on an assessment, as appropriate to the
circumstances, of the risks to human, animal or plant life or health,
taking into account risk assessment techniques developed by the relevant
international organizations.
2. In the assessment of risks, Members shall
take into account available scientific evidence; relevant processes and
production methods; relevant inspection, sampling and testing methods;
prevalence of specific diseases or pests; existence of pest- or
disease-free areas; relevant ecological and environmental conditions;
and quarantine or other treatment.
3. In assessing the risk to animal or plant
life or health and determining the measure to be applied for achieving
the appropriate level of sanitary or phytosanitary protection from such
risk, Members shall take into account as relevant economic factors: the
potential damage in terms of loss of production or sales in the event of
the entry, establishment or spread of a pest or disease; the costs of
control or eradication in the territory of the importing Member; and the
relative cost-effectiveness of alternative approaches to limiting risks.
4. Members should, when determining the
appropriate level of sanitary or phytosanitary protection, take into
account the objective of minimizing negative trade effects.
5. With the objective of achieving consistency
in the application of the concept of appropriate level of sanitary or
phytosanitary protection against risks to human life or health, or to
animal and plant life or health, each Member shall avoid arbitrary or
unjustifiable distinctions in the levels it considers to be appropriate
in different situations, if such distinctions result in discrimination
or a disguised restriction on international trade. Members shall
cooperate in the Committee, in accordance with paragraphs
1, 2 and 3 of
Article 12, to develop guidelines to further the practical
implementation of this provision. In developing the guidelines, the
Committee shall take into account all relevant factors, including the
exceptional character of human health risks to which people voluntarily
expose themselves.
6. Without prejudice to
paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures
to achieve the appropriate level of sanitary or phytosanitary
protection, Members shall ensure that such measures are not more
trade-restrictive than required to achieve their appropriate level of
sanitary or phytosanitary protection, taking into account technical and
economic feasibility.(3)
(footnote original)
3 For purposes of
paragraph 6 of Article 5, a measure is not more trade-restrictive than
required unless there is another measure, reasonably available taking
into account technical and economic feasibility, that achieves the
appropriate level of sanitary or phytosanitary protection and is
significantly less restrictive to trade.
7. In cases where relevant scientific evidence
is insufficient, a Member may provisionally adopt sanitary or
phytosanitary measures on the basis of available pertinent information,
including that from the relevant international organizations as well as
from sanitary or phytosanitary measures applied by other Members. In
such circumstances, Members shall seek to obtain the additional
information necessary for a more objective assessment of risk and review
the sanitary or phytosanitary measure accordingly within a reasonable
period of time.
8. When a Member has
reason to believe that a specific sanitary or phytosanitary measure
introduced or maintained by another Member is constraining, or has the
potential to constrain, its exports and the measure is not based on the
relevant international standards, guidelines or recommendations, or such
standards, guidelines or recommendations do not exist, an explanation of
the reasons for such sanitary or phytosanitary measure may be requested
and shall be provided by the Member maintaining the measure.(107)
B. Interpretation and Application of Article 5
1. Article 5.1
(a) Standard of
review
94.
With regards to the role of panels in reviewing whether an SPS measure
is based on a risk assessment, the Panels on EC — Hormones, in
a finding not addressed by the Appellate Body, stated:
“[I]t is for the European Communities to submit
evidence before the Panel that its measures are based on a risk
assessment; it is not for the Panel itself to conduct its own risk
assessment on the basis of scientific evidence gathered by the Panel or
submitted by the parties during the Panel proceedings.”(108)
95.
The Panel on
Australia — Salmon, in a finding not addressed by the
Appellate Body, made a similar statement, holding that it did not
attempt to conduct its own risk assessment, but merely examined and
evaluated evidence:
“[W]e stress that in examining this case we did
not attempt (nor are we, in our view, allowed) to conduct our own risk
assessment or to impose any scientific opinion on Australia. We only
examined and evaluated the evidence — including the information we
received from the experts advising the Panel — and arguments put
before us in light of the relevant WTO provisions and, following the
rules on burden of proof set out above, based our findings on this
evidence and these arguments.”(109)
96.
The Appellate Body on
Japan — Apples
considered it unnecessary to express its view on the question of whether
the conformity of a risk assessment with Article 5.1
should be evaluated
solely against the scientific evidence available at the time of the risk
assessment, as Japan had failed to establish that the Panel utilized
subsequent scientific evidence in evaluating the risk assessment at
issue.(110)
(b) “based on”
an assessment of the risks
(i) Taking into
account risk assessment techniques
97.
In
EC — Hormones, the Panel had held that the European Communities’
measure was in violation of Article 5.1 since “the European
Communities did not provide any evidence that the studies … or the
scientific conclusions reached therein ‘have
actually been taken into account by the competent EC institutions
either when it enacted those measures (in 1981 and 1988) or at any later point
in time’” (emphasis original).(111)
The Appellate Body characterized this “minimum procedural element”
as “some subjectivity … present in certain individuals” and
disagreed with this standard:
“We are bound to note that, as the Panel itself
acknowledges, no textual basis exists in Article 5 of the SPS
Agreement for such a ‘minimum procedural requirement’. The term
‘based on’, when applied as a ‘minimum procedural requirement’
by the Panel, may be seen to refer to a human action, such as particular
human individuals ‘taking into account’ a document described as a
risk assessment. Thus, ‘take into account’ is apparently used by the
Panel to refer to some subjectivity which, at some time, may be present
in particular individuals but that, in the end, may be totally rejected
by those individuals. We believe that ‘based on’ is appropriately
taken to refer to a certain objective relationship between two
elements, that is to say, to an objective situation that
persists and is observable between an SPS measure and a risk assessment.
Such a reference is certainly embraced in the ordinary meaning of the
words ‘based on’ and, when considered in context and in the light of
the object and purpose of Article 5.1 of the SPS Agreement, may
be seen to be more appropriate than ‘taking into account’. We do not
share the Panel’s interpretative construction and believe it is
unnecessary and an error of law as well.
Article 5.1 …. only requires that the SPS
measures be ‘based on an assessment, as appropriate for the
circumstances …’. The ‘minimum procedural requirement’
constructed by the Panel, could well lead to the elimination or
disregard of available scientific evidence that rationally supports the
SPS measure being examined. This risk of exclusion of available
scientific evidence may be particularly significant for the bulk of SPS
measures which were put in place before the effective date of the WTO
Agreement and that have been simply maintained thereafter.”(112)
(ii) Rational
relationship between the SPS measure and the risk assessment
98.
The Appellate Body on
EC — Hormones held that the requirement of Article 5.1
—
that an SPS measure be “based on” a risk assessment — was a
substantive requirement that “there be a rational relationship between
the measure and the risk assessment”:
“We consider that, in principle, the Panels’
approach of examining the scientific conclusions implicit in the SPS
measure under consideration and the scientific conclusion yielded by a
risk assessment is a useful approach. The relationship between those two
sets of conclusions is certainly relevant; they cannot, however, be
assigned relevance to the exclusion of everything else. We believe that Article 5.1, when contextually read as it should be, in conjunction with
and as informed by Article 2.2 of the SPS Agreement, requires
that the results of the risk assessment must sufficiently warrant —
that is to say, reasonably support — the SPS measure at stake. The
requirement that an SPS measure be ‘based on’ a risk assessment is a
substantive requirement that there be a rational relationship between
the measure and the risk assessment.
We do not believe that a risk assessment has to
come to a monolithic conclusion that coincides with the scientific
conclusion or view implicit in the SPS measure. The risk assessment
could set out both the prevailing view representing the ‘mainstream’
of scientific opinion, as well as the opinions of scientists taking a
divergent view. Article 5.1 does not require that the risk assessment
must necessarily embody only the view of a majority of the relevant
scientific community. … In most cases, responsible and representative
governments tend to base their legislative and administrative measures
on ‘mainstream’ scientific opinion. In other cases, equally
responsible and representative governments may act in good faith on the
basis of what, at a given time, may be a divergent opinion coming from
qualified and respected sources. By itself, this does not necessarily
signal the absence of a reasonable relationship between the SPS measure
and the risk assessment, especially where the risk involved is
lifethreatening in character and is perceived to constitute a clear and
imminent threat to public health and safety”(113)
(iii)
Determination of relationship on “a case-by-case” basis
99.
The Appellate Body on
EC — Hormones also noted that determination of the presence
or absence of that relationship can only be done on a case-by-case
basis, after account is taken of all considerations rationally bearing
upon the issue of potential adverse health effects.(114)
(c) “risk
assessment”
(i) General
100.
The Appellate Body on EC — Hormones, when addressing the
requirements under Article 3.3, also considered the object and purpose
of Article 3 and of the SPS Agreement as a whole and noted its
“belief that compliance with Article 5.1 was intended as a
countervailing factor in respect of the right of Members to set their
appropriate level of protection … The requirements of a risk
assessment under Article 5.1, … are essential for the maintenance of
the delicate and carefully negotiated balance in the SPS Agreement
between the shared, but sometimes competing, interests of promoting
international trade and of protecting the life and health of human
beings.”(115)
101.
In Australia — Salmon, the Appellate Body held that the
presence of unknown and uncertain elements did not affect the
requirements of Articles 5.1, 5.2 and
5.3:
“[T]he existence of unknown and uncertain
elements does not justify a departure from the requirements of Articles
5.1, 5.2 and 5.3, read together with
paragraph 4 of Annex A, for a risk
assessment. We recall that Article 5.2 requires that ‘in the
assessment of risk, Members shall take into account available scientific
evidence’. We further recall that Article
2, entitled ‘Basic Rights
and Obligations’, requires in paragraph 2 that ‘Members shall ensure
that any sanitary … measure … is based on scientific principles and
is not maintained without sufficient scientific evidence, except as
provided for in paragraph 7 of Article 5’.”(116)
(ii) Concept of
risk assessment versus risk management
102.
The Appellate Body on EC — Hormones
rejected the distinction between “risk assessment” and “risk
management” used by the original Panel in its findings under Article 5.1:
“The Panel observed that an assessment of risk
is, at least with respect to risks to human life and health, a ‘scientific’
examination of data and factual studies; it is not, in the view of the
Panel, a ‘policy’ exercise involving social value judgments made by
political bodies.(117)
The Panel describes the latter as ‘non-scientific’ and as pertaining
to ‘risk management’ rather than to ‘risk assessment’.(118)
We must stress, in this connection, that Article 5 and
Annex A of the SPS Agreement
speak of ‘risk assessment’ only and that the term ‘risk management’
is not to be found either in Article 5 or in any other provision of the SPS Agreement.
Thus, the Panel’s distinction, which it apparently employs to achieve
or support what appears to be a restrictive notion of risk assessment,
has no textual basis. The fundamental rule of treaty interpretation
requires a treaty interpreter to read and interpret the words actually
used by the agreement under examination, and not words which the
interpreter may feel should have been used.”(119)
(iii) Three
aspects of risk assessment
103.
In Australia — Salmon, the Appellate Body identified three
aspects of a risk assessment:
“On the basis of [the] definition [prescribed in
the first part of paragraph 4 of Annex A], we consider that, in this
case, a risk assessment within the meaning of Article 5.1
must:
(1)
identify the diseases whose entry, establishment or spread a
Member wants to prevent within its territory, as well as the potential
biological and economic consequences associated with the entry,
establishment or spread of these diseases;
(2) evaluate the likelihood of entry,
establishment or spread of these diseases, as well as the associated
potential biological and economic consequences; and
(3) evaluate the
likelihood of entry, establishment or spread of these diseases according to the SPS measures
which might be applied.”(120)
(iv) Completing
the analysis of a risk assessment
104.
The Panel on Australia — Salmon found that the Australian
heat treatment requirement was not “based on” a risk assessment
within the meaning of Article 5.1, because the Final Report (the risk
assessment) made “no substantive assessment of the risk or the risk
reduction related to the heat requirements in effect imposed by the
measure at issue” … but stated that “there is insufficient data on
whether or not heat treatment inactivates the disease agents in dispute”. (121)
The Appellate Body, reversed this finding(122)
and completed the analysis by examining whether the import prohibition
on fresh, chilled and frozen salmon was based on a risk assessment. It
found that the 1996 Final Report did not fulfil the requirements needed
to constitute a “risk assessment” within the meaning of Article 5.1:(123)
“Applying our three-pronged test set out in
paragraph 128 above, to
the 1996 Final Report in order to determine whether that Report meets
the requirements of a risk assessment within the meaning of Article 5.1
and the first definition in paragraph 4 of Annex
A, we note that the
Panel found that the 1996 Final Report identifies the diseases whose
entry, establishment or spread Australia wants to prevent as well as the
potential biological and economic consequences associated with the
entry, establishment or spread of such diseases. The Panel, therefore,
concluded that ‘the 1996 Final Report meets the first requirement of a
risk assessment’.(124)
We agree with the Panel.
With regard to the second requirement for a risk
assessment of the type applicable in this case … We believe … that
on the basis of the facts found by the Panel, it could, and should, have
come to the conclusion that the 1996 Final Report does not contain the
‘evaluation of the likelihood of entry, establishment or spread’ of
the diseases of concern ‘and of the associated potential biological
and economic consequences’ as required by paragraph 4 of Annex A of
the SPS Agreement. As we have already emphasized, some
evaluation of the likelihood is not enough.(125)
… We turn now to the third requirement of a risk
assessment … We agree with the Panel that the measures which might be
applied are those which reduce the risks of concern, and are referred to
in the 1996 Final Report as risk reduction factors …On the basis of
its factual findings, the Panel should have come to the conclusion that
the 1996 Final Report does not fulfil the third requirement for the type
of risk assessment applicable in this case, i.e., it does not contain
the required evaluation of the likelihood of entry, establishment or
spread of the diseases of concern according to the SPS measures which
might be applied. We recall that, contrary to the Panel, we consider
that some evaluation of the likelihood is not enough.(126)
We conclude, on the basis of the factual findings
made by the Panel and the requirements for a risk assessment as set
forth above, that the 1996 Final Report meets neither the second nor the
third requirement for the type of risk assessment applicable in this
case, and, therefore, that the 1996 Final Report is not a proper
risk assessment within the meaning of Article 5.1
and the first
definition in paragraph 4 of Annex A.”(127)
105.
Regarding the definition of risk assessment within the meaning of Annex
A paragraph 4, see Section
XVI.B.2 below.
(v) Scope of the
risk assessment
Assessment of each individual substance
106.
In EC — Hormones, the Appellate Body upheld the Panel’s
finding that “there was no risk assessment with regard to MGA”(128),
one of the six growth hormones at issue, stating that “[i]n other
words, there was an almost complete absence of evidence on MGA in the
panel proceedings.”(129)
On this point, the Panels had explained that “one of the basic
principles of a risk assessment appears to be that it needs to be
carried out for each individual substance.”(130)
Different product categories
107.
The Panel on Australia — Salmon held that studies on one
particular product category could be relevant for a risk assessment in
respect of another product category:
“We do, however, agree with Australia that some
of the evidence, assessments and conclusions contained in the 1996 Final
Report might be relevant for the risk assessment to be carried out (or
relied upon) for the other categories of salmon products and that,
therefore, a completely new risk assessment for these other categories
of salmon products might not be necessary”.(131)
(vi) Studies
not sufficiently specific to the case at hand
108.
The Appellate Body on EC — Hormones
also rejected certain studies submitted by the European Communities as
risk assessment for the purpose of Article 5.1, holding that these
studies were general and “not sufficiently specific to the case at
hand”:
“[The studies submitted by the respondent]
constitute general studies which do indeed show the existence of a
general risk of cancer; but they do not focus on and do not address the
particular kind of risk here at stake — the carcinogenic or genotoxic
potential of the residues of those hormones found in meat derived from
cattle to which the hormones had been administered for growth promotion
purposes — as is required by paragraph 4 of Annex A of the SPS
Agreement. Those general studies, are in other words, relevant but
do not appear to be sufficiently specific to the case at hand”.(132)
(vii) Who
should carry out the risk assessment?
109.
In EC — Hormones, the Appellate Body addressed the question of
whether a Member should carry out its own risk assessment for a SPS
measure:
“Article 5.1 does not insist that a Member that
adopts a sanitary measure shall have carried out its own risk assessment
… The SPS measure might well find its objective justification in a
risk assessment carried out by another Member, or an international
organization”.(133)
(viii) Format
of the risk assessment
110.
The Panel on Australia
— Salmon held that a risk assessment need not be an official
government report:
“We note that these reports do not form part of
Australia’s formal risk assessment nor represent Australia’s
official government policy. However, to the extent they constitute
relevant available scientific information which was submitted to the
Panel, we consider it our task to take this evidence into account. We
consider that, for purposes of our examination, the scientific and
technical content of these reports and studies is relevant, not their
administrative status (i.e., whether they are official government
reports or not).
… Whether or not this evidence is part of
official Australian government policy does not, in our mind, change the
scientific weight to be given to it”.(134)
(ix) Relevance
of the timing of publication of risk assessment
111.
With respect to the risk assessment requirement for SPS measures enacted
before the entry into force of the
SPS Agreement, the Panel on EC — Hormones noted:
“[Article 5.1] does not prevent that with
respect to a sanitary measure enacted before the entry into
force of the SPS Agreement, the risk assessment is carried out or
invoked after the entry into force of that Agreement (and thus after
the enactment of the sanitary measure in question). However, the fact
that a sanitary measure may be enacted before the entry into
force of the SPS Agreement does not mean that, once the SPS
Agreement entered into force, there is no obligation for the Member
in question to base that measure on a risk assessment.”(135)
112.
The Panel on Australia — Salmon while addressing Canada’s
complaint that Australia’s measure was maintained without any form of
risk assessment added in this respect:
“Article 5.1 does not qualify — either in
terms of application in time or product coverage — the substantive
obligation imposed on all WTO Members to base their sanitary measures on
a risk assessment.
…
We note Australia’s statement that its policy of
allowing imports of salmon products heat-treated in accordance with the
1988 Conditions will be reviewed and that for these purposes an import
risk analysis is scheduled. It is possible that this risk analysis
provides a rational basis for the measure at issue. However, as of today
and on the basis of the risk assessment before us, we do not detect such
basis.”(136)
113.
In Australia — Salmon (Article 21.5 — Canada), Canada
claimed that the new Australian measures could not be said to be based
on a risk assessment, because the 1999 Import Risk Analysis (IRA) (the
Australian risk assessment for the amended measure) was only published
in its final form on 12 November 1999, i.e. after the publication of the
new measures which had occurred on 19 July 1999. The Panel rejected this
argument as follows:
“We note that the final form of the 1999 IRA,
though only edited and published in book form on 12 November 1999, is
still dated July 1999 and that … the amendments made in the final 1999
IRA ‘do not alter the substance or the conclusions of the report as
announced on 19 July’.
On these grounds, we find that the fact that the
1999 IRA was only published in final form subsequent to the date the new
sanitary measures were taken, does not, in this case, preclude the
measures from being based on the 1999 IRA. All substantive
elements of the risk assessment we looked at earlier were already
included in the draft 1999 IRA of July 1999, i.e. before the
new measures were taken.”(137)
(x) Identifying
the SPS measure
114.
The Panel on Australia — Salmon defined the sanitary measure
enacted by Australia to be an import prohibition on, inter alia,
fresh, chilled and frozen salmon. The Panel then went on to state that
the measure effectively imposed heat treatment “as a sanitary solution
to the risk posed by the importation of salmon” and concluded that “these
two perspectives [the import prohibition on fresh, chilled and frozen
salmon and the heat treatment requirement] are two sides of a single
coin: a consequence of Australia’s sanitary requirement that salmon be
heattreated before it can be imported, is that imports of fresh, chilled
and frozen salmon are prohibited”.(138)
The Appellate Body disagreed with this characterization of the
Australian measure:
“In our view, the SPS measure at issue in this
dispute can only be the measure which is actually
applied to the product at issue. The product at issue is fresh, chilled
or frozen salmon and the SPS measure applicable to fresh, chilled or
frozen salmon is the import prohibition set forth in QP86A. The
heat-treatment requirement provided for in the 1988 Conditions applies
only to smoked salmon and salmon roe, not to fresh, chilled or frozen
salmon.
We also do not share the Panel’s view that the
import prohibition and the heat-treatment requirement are ‘two sides
of the same coin’. Smoked salmon and fresh, chilled or frozen salmon
are different products and the SPS measures applied to each are not ‘two
sides of the same coin’. We agree with Australia that it is not a
consequence of the requirement that smoked salmon be
heat-treated that imports of fresh, chilled or frozen salmon are
prohibited. Imports of fresh, chilled or frozen salmon are prohibited as
a direct consequence of the application of QP86A, and this prohibition
has not been revoked, but has, in fact, been continuously maintained
since 1975. We likewise do not share the Panel’s view that the 1996
Requirements apply to fresh, chilled or frozen salmon. These
requirements clearly apply only to imports of small amounts of smoked
salmon.”(139)
(xi) Evaluation
of risk in a risk assessment (“Zero risk”)
115.
The Panel on Australia — Salmon held that “a risk
assessment, on which to base an import prohibition in accordance with Article 5.1, cannot be premised on the concept of ‘zero risk’.
Otherwise, all import prohibitions would be based on a risk assessment
since there is a risk (i.e., a possibility of an adverse event
occurring), however remote, associated with most (if not all) imports”.(140)
On appeal, the Appellate Body emphasized the distinction between risk
assessment under Article 5.1 and the determination, by a Member, of its
own appropriate level of protection:
“[I]t is important to distinguish — perhaps
more carefully than the Panel did — between the evaluation of ‘risk’
in a risk assessment and the determination of the appropriate level of
protection. As stated in our Report in European Communities
— Hormones, the ‘risk’ evaluated in a risk assessment must be
an ascertainable risk; theoretical uncertainty is ‘not the kind of
risk which, under Article 5.1, is to be assessed.’ This does not mean,
however, that a Member cannot determine its own appropriate level of
protection to be ‘zero risk’.”(141)
(xii) No
threshold level of risk required
116.
In EC — Hormones, the Appellate Body addressed the European
Communities’ appeal that the original Panel was “in effect requiring
a Member carrying out a risk assessment to quantify the potential for
adverse effects on human health”.(142)
The Appellate Body elaborated on the term “scientifically identified
risk” that the Panel had employed and the notion of “theoretical
uncertainty” in the context of Article 5.1. The Appellate Body
indicated that Article 5.1 does not address theoretical uncertainty:
that is to say, “uncertainty that theoretically always remains since
science can never provide absolute certainty that a given substance will
not ever have adverse health effects”:
“It is not clear in what sense the Panel uses
the term scientifically identified risk’. The Panel also frequently
uses the term ‘identifiable risk’(143),
and does not define this term either. The Panel might arguably have used
the terms ‘scientifically identified risk’ and ‘identifiable risk’
simply to refer to an ascertainable risk: if a risk is not
ascertainable, how does a Member ever know or demonstrate that it
exists? In one part of its Reports, the Panel opposes a requirement of
an ‘identifiable risk’ to the uncertainty that theoretically always
remains since science can never
provide absolute certainty that a given substance will not ever
have adverse health effects.(144)
We agree with the Panel that this theoretical uncertainty is not the
kind of risk which, under Article 5.1, is to be assessed. In another
part of its Reports, however, the Panel appeared to be using the term
‘scientifically identified risk’ to prescribe implicitly that a
certain magnitude or threshold level of risk be demonstrated in
a risk assessment if an SPS measure based thereon is to be regarded as
consistent with Article 5.1.(145)
To the extent that the Panel purported to require a risk assessment to
establish a minimum magnitude of risk, we must note that imposition of
such a quantitative requirement finds no basis in the SPS Agreement.
A panel is authorized only to determine whether a given SPS measure is
‘based on’ a risk assessment. As will be elaborated below, this
means that a panel has to determine whether an SPS measure is
sufficiently supported or reasonably warranted by the risk assessment.”(146)
117.
In Japan — Apples, the Appellate Body agreed with the Panel
that “scientific prudence” displayed by the experts in this case did
not relate to the “theoretical uncertainty” that is inherent in the
scientific method:
“The comments of the Panel in response to the
argument of the United States on ‘theoretical risk’ should be viewed
in their appropriate context. … We understand that the ‘scientific
prudence’ displayed by the experts in this case related to risks that
might arise from radical changes in Japan’s current system of
phytosanitary controls, taking into account Japan’s island environment
and climate. The scientific prudence displayed by the experts did not
relate to the ‘theoretical uncertainty’ that is inherent in the
scientific method and which stems from the intrinsic limits of
experiments, methodologies, or instruments deployed by scientists to
explain a given phenomenon. Therefore, we agree with the Panel that the
scientific prudence displayed by the experts should not be ‘completely
assimilated’ to the ‘theoretical uncertainty’ that the Appellate
Body discussed in EC — Hormones as being beyond the purview
of risks to be addressed by measures subject to the SPS Agreement
…”(147)
(d) “as
appropriate to the circumstances”
(i) Flexibility
118.
When addressing the applicability of the
SPS Agreement to measures adopted before the entry into force of
the
WTO
Agreement the Appellate Body on EC — Hormones noted that
the phrase “as appropriate to the circumstances” provides for a
certain degree of flexibility:
“We are aware that the applicability, as from 1
January 1995, of the requirement that an SPS measure be based on a risk
assessment to the many SPS measures already in existence on that date,
may impose burdens on Members. It is pertinent here to note that Article 5.1
stipulates that SPS measures must be based on a risk assessment, as appropriate to the circumstances,
and this makes clear that the Members have a certain degree of
flexibility in meeting the requirements of Article 5.1.”(148)
119.
The Panel on Australia — Salmon held that the phrase “as
appropriate to the circumstances” created the possibility “to assess
the risk, on a case-by-case basis, in terms of product, origin and
destination, including, in particular, country-specific situations”:
“Following Article 5.1, a risk assessment needs
to be ‘appropriate to the circumstances’. Answering a Panel question
in this respect, Canada is of the view that the circumstances thus
referred to are the source of the risk (e.g., an animal pathogen or a
chemical contaminant) and the subject of the risk (i.e., whether it is
to human, animal or plant life or health). For Australia, the phrase ‘as
appropriate to the circumstances’ confers a right and obligation on
WTO Members to assess the risk, on a case by case basis, in terms of
product, origin and destination, including, in particular, country
specific situations. We agree that both interpretations may be covered
by the term ‘as appropriate to the circumstances’. In our view, also
the OIE risk assessment techniques as well as the scientific opinions we
gathered, may shed light on what is a risk assessment ‘appropriate to
the circumstances’.”(149)
(ii) Does not
waive duty of risk assessment
120.
The Panel on Australia — Salmon held that the phrase “as
appropriate to the circumstances” did not alleviate the duty to base a
measure on a risk assessment:
“As to the product coverage of Article 5.1, the
reference contained in Article 5.1 to base sanitary measures on an
assessment ‘as appropriate to the circumstances’ cannot, in our
view, annul or supersede the substantive obligation resting on Australia
to base the sanitary measure in dispute (irrespective of the products
that measure may cover) on a risk assessment. We consider that the
reference ‘as appropriate to the circumstances’ relates, rather, to
the way in which such risk assessment has to be carried out.(150)
Only Article 5.7 allows for an exception to the obligation to base
sanitary measures on a risk assessment.”(151)
(e) Taking into
account risk assessment techniques
(i) Mention of
scientific studies in preambular sections of the domestic directives
121.
The Appellate Body on EC — Hormones
disagreed with the Panel’s finding that certain scientific studies
were not taken into consideration, inter alia, because these
studies were not mentioned in the preambles to the relevant European
Communities’ directives:
“In the course of demanding evidence that EC
authorities actually ‘took into account’ certain scientific studies,
the Panel refers to the preambles of the EC Directives here involved.
The Panel notes that such preambles did not mention any of the
scientific studies referred to by the European Communities in the panel
proceedings. Preambles of legislative or quasi-legislative acts and
administrative regulations commonly fulfil requirements of the internal
legal orders of WTO Members. Such preambles are certainly not required
by the SPS Agreement; they are not normally used to demonstrate
that a Member has complied with its obligations under international
agreements. The absence of any mention of scientific studies in the
preliminary sections of the EC Directives does not, therefore, prove
anything so far as the present case is concerned”.(152)
(f) Relationship
with other paragraphs of Article 5
(i) Article 5.2
122.
For discussion on the risk factors to be taken into account, see Section
VI.B.2(a) below.
(ii) Article
5.5
123.
On the relationship between Articles 5.1 and 5.5, the Panel on Australia — Salmon
stated that “the obligations contained in Article 5.1
(risk
assessment) and Article 5.5 are complementary, not mutually exclusive.
We consider, therefore, that a WTO Member cannot justify the
inconsistency with one Article on the ground that such inconsistency
avoids an additional inconsistency with another Article.”(153)
(g) Relationship
with other Articles
(i) Article 1.1
124.
As relates to the applicability of the SPS Agreement to measures
adopted before 1 January 1995 and measures adopted since, see paragraph 5
above.
2. Article 5.2
(a) Risk factors to
be taken into account
(i) Risk
ascertainable by scientific and non scientific processes
125.
With respect to the risk factors to be examined in the context of a risk
assessment, the Appellate Body on EC
— Hormones agreed with the Panel’s emphasis of the scientific
nature of risk assessment, but added a qualification on the nature of
the “risk”:
“The listing in Article 5.2 begins with ‘available
scientific evidence’; this, however, is only the beginning. We note in
this connection that the Panel states that, for purposes of the EC
measures in dispute, a risk assessment required by Article 5.1
is ‘a
scientific process aimed at establishing the scientific
basis for the sanitary measure a Member intends to take’.(154)
To the extent that the Panel intended to refer to a process
characterized by systematic, disciplined and objective enquiry and
analysis, that is, a mode of studying and sorting out facts and
opinions, the Panel’s statement is unexceptionable. However, to the
extent that the Panel purports to exclude from the scope of a risk
assessment in the sense of Article 5.1, all matters not susceptible of
quantitative analysis by the empirical or experimental laboratory
methods commonly associated with the physical sciences, we believe that
the Panel is in error. Some of the kinds of factors listed in Article
5.2 such as ‘relevant processes and production methods’ and ‘relevant
inspection, sampling and testing methods’ are not necessarily or
wholly susceptible of investigation according to laboratory methods of,
for example, biochemistry or pharmacology. Furthermore, there is nothing
to indicate that the listing of factors that may be taken into account
in a risk assessment of Article 5.2 was intended to be a closed list. It
is essential to bear in mind that the risk that is to be evaluated in a
risk assessment under Article 5.1 is not only risk ascertainable in a
science laboratory operating under strictly controlled conditions, but
also risk in human societies as they actually exist, in other words, the
actual potential for adverse effects on human health in the real world
where people live and work and die.”(155)
(ii) Risks
arising from control of compliance with certain requirements
126.
Having held that “risk assessment” did not only refer to the risk
ascertainable in a science laboratory operating under strictly
controlled conditions, the Appellate Body on EC — Hormones
considered that, for instance, risks arising from difficulties of
control of compliance with certain requirements could be taken into
account in the context of a risk assessment:
“It should be recalled that Article 5.2 states
that in the assessment of risks, Members shall take into account, in
addition to ‘available scientific evidence’, ‘relevant processes
and production methods; [and] relevant inspection, sampling and testing
methods’. We note also that Article 8 requires Members to ‘observe
the provisions of Annex C in the operation of control, inspection and
approval procedures …’. The footnote in Annex C
states that ‘control,
inspection and approval procedures include,
inter alia, procedures for sampling, testing and certification’.
We consider that this language is amply sufficient to authorize the
taking into account of risks arising from failure to comply with the
requirements of good veterinary practice in the administration of
hormones for growth promotion purposes, as well as risks arising from
difficulties of control, inspection and enforcement of the requirements
of good veterinary practice.”(156)
(iii) Risks
arising from abuse of controlled substances not to be excluded on an a
priori basis
127.
The Appellate Body on EC — Hormones
added a caveat to its finding referred to in paragraphs 126
above. It held that risks arising from the potential abuse of
controlled substances in practice need not necessarily be taken into
account in each and every case; it explained that its findings in
paragraphs 126
above were to be interpreted as meaning that such types of risk
should not be excluded a priori:
“[T]he SPS Agreement requires
assessment of the potential for adverse effects on human health arising
from the presence of contaminants and toxins in food. We consider that
the object and purpose of the SPS Agreement justify the
examination and evaluation of all such risks for human health whatever
their precise and immediate origin may be. We do not mean to suggest
that risks arising from potential abuse in the administration of
controlled substances and from control problems need to be, or should
be, evaluated by risk assessors in each and every case. When and if
risks of these types do in fact arise, risk assessors may examine and
evaluate them. Clearly, the necessity or propriety of examination and
evaluation of such risks would have to be addressed on a case-by-case
basis. What, in our view is a fundamental legal error is to exclude, on
an a priori basis, any such risks from the scope of application
of Articles 5.1 and 5.2.”(157)
(b) Relationship
with other Articles
(i) Articles 2.2
and 5.1
128.
In Australia — Salmon, the Appellate Body agreed(158)
with the finding of the Panel, whereby the Panel held that a violation
of Article 5.1 or 5.2 would imply a violation of the more general
provision of Article 2.2:
“Articles 5.1 and 5.2 — in the words of the
Appellate Body in EC — Hormones when dealing with the
relationship between Articles 2.3 and
5.5 — ‘may be seen to be
marking out and elaborating a particular route leading to the same
destination set out in’ Article 2.2. Indeed, in the event a sanitary
measure is not based on a risk assessment as required in Articles 5.1
and 5.2, this measure can be presumed, more generally, not to be based
on scientific principles or to be maintained without sufficient
scientific evidence. We conclude, therefore, that if we find a violation
of the more specific Article 5.1 or 5.2 such finding can be presumed to
imply a violation of the more general provisions of Article
2.2. We do
recognize, at the same time, that given the more general character of
Article 2.2 not all violations of Article 2.2 are covered by
Articles
5.1 and 5.2.”(159)
3. Article 5.3
129.
In assessing risk and determining the measure to be applied, the
Appellate Body on Australia — Salmon noted that the presence
of unknown and uncertain elements does not affect the requirements under
Article 5.3. See paragraph 101 above.
4. Article 5.4
(a) General
130.
The Panel on EC — Hormones, in a finding not reviewed by the
Appellate Body, held that Article 5.4 was of an hortatory nature:
“Guided by the wording of Article
5.4, in
particular the words ‘should’ (not ‘shall’) and ‘objective’,
we consider that this provision of the SPS Agreement does not
impose an obligation. However, this objective of minimizing negative
trade effects has nonetheless to be taken into account in the
interpretation of other provisions of the SPS Agreement.”(160)
(b) Relationship
with other paragraphs of Article 5
131.
In Australia — Salmon, the Appellate Body determined that the SPS
Agreement contains an implicit obligation that WTO Members determine
their appropriate level of protection.(161)
See paragraph 151 below.
5. Article 5.5
(a) Standard of
review
132.
While examining whether Australia imposed different levels of protection
in respect of “different situations” in the sense of Article
5.5,
the Panel addressed an argument made by Australia, the responding party,
that for a situation to be so compared, a risk assessment in respect of
it would need to have been carried out. The Panel emphasized that it
could not conduct its own risk assessment, but rather had to weigh the
evidence before it:
“We cannot conduct our own risk assessment. Nor
do we attempt to do so in this report. The fact that one of the experts
advising the Panel stated that ‘if you are trying to say which [of two
products] is the most risky, then you need to know something about and
possibly do a full assessment for [the other] product’ and that ‘it
would be sensible to assess that which you have prioritized initially to
have the highest risk first, but until you have done the risk
assessment, you actually cannot be sure you have got that right’, does
not change our position. Nor do we disagree with these statements.
Indeed, for a scientist to say with scientific certainty that one
product represents a higher risk than the other, there may be a need to
have two, more or less, complete sets of data, including two risk
assessments. And even on that basis a scientist would probably not be
able to state with absolute certainty that one product is riskier than
the other. Our mandate is different. We are not asked to make a
scientific risk comparison nor to state with scientific certainty that
one product is riskier than the other. We can only weigh the evidence
put before us and, on the basis of the rules of burden of proof we
adopted, including the use of factual presumptions, decide whether
sufficient evidence is before us — evidence which has not been
rebutted — in order to state that it can be presumed that one product
is riskier than the other.”(162)
(b) Cumulative
elements of Article 5.5
133.
In EC — Hormones, the Appellate Body considered the three
elements of Article 5.5 and held that these elements were cumulative in
nature. It emphasized in particular, that the third element, should be
demonstrated positively and independently of the second element:
“The first element is that the Member imposing
the measure complained of has adopted its own appropriate levels of
sanitary protection against risks to human life or health in several
different situations. The second element to be shown is that those levels of protection
exhibit arbitrary or unjustifiable differences (‘distinctions’ in
the language of Article 5.5) in their treatment of different situations.
The last element requires that the arbitrary or unjustifiable
differences result in discrimination or a disguised restriction of
international trade. We understand the last element to be referring to
the measure embodying or implementing a particular level of
protection as resulting, in its application, in discrimination or a
disguised restriction on international trade. …
We consider the above three elements of Article 5.5
to be cumulative in nature; all of them must be demonstrated to be
present if violation of Article 5.5 is to be found. In particular, both
the second and third elements must be found. The second element alone
would not suffice. The third element must also be demonstrably present:
the implementing measure must be shown to be applied in such a manner as
to result in discrimination or a disguised restriction on international
trade. The presence of the second element — the arbitrary or
unjustifiable character of differences in levels of
protection considered by a Member as appropriate in differing
situations — may in practical effect operate as a ‘warning’ signal
that the implementing measure in its application might
be a discriminatory measure or might be a restriction on
international trade disguised as an SPS measure for the protection of
human life or health. Nevertheless, the measure itself needs to be
examined and appraised and, in the context of the differing levels of
protection, shown to result in discrimination or a disguised restriction
on international trade.”(163)
(c) “appropriate
level of protection”
(i) Legal status
of the first part of Article 5.5
134.
In EC — Hormones, with respect to the first part of Article 5.5, the Appellate Body held that the statement of the goal of
consistency did not establish a legal obligation of consistency of
appropriate levels of protection. Rather, only certain types of
inconsistencies were to be avoided:
“The objective of Article 5.5
is formulated as
the ‘achieving [of] consistency in the application of the concept of
appropriate level of sanitary or phytosanitary protection’. Clearly,
the desired consistency is defined as a goal to be achieved in the
future. To assist in the realization of that objective, the Committee on
Sanitary and Phytosanitary Measures is to develop
guidelines for the practical implementation of Article 5.5, bearing
in mind, among other things, that ordinarily, people do not voluntarily
expose themselves to health risks. Thus, we agree with the Panel’s
view that the statement of that goal [consistency] does not establish a
legal obligation of consistency of appropriate levels of
protection. We think, too, that the goal set is not absolute or perfect
consistency, since governments establish their appropriate levels of
protection frequently on an ad hoc basis and over time, as
different risks present themselves at different times. It is only
arbitrary or unjustifiable inconsistencies that are to be avoided.”(164)
(ii) “distinctions
in the levels of protection in different situations”
Different situations
135.
The Panel on EC — Hormones found that the “different
situations” that can be compared under Article 5.5
were situations “where
the same substance or the same adverse health effect is involved”.(165)
On appeal, the Appellate Body stated:
“Clearly, comparison of several levels of
sanitary protection deemed appropriate by a Member is necessary if a
panel’s inquiry under Article 5.5 is to proceed at all.
The situations exhibiting differing levels of protection cannot, of
course, be compared unless they are comparable, that is, unless they
present some common element or elements sufficient to render them
comparable. If the situations proposed to be examined are totally
different from one another, they would not be rationally comparable and
the differences in levels of protection cannot be examined for
arbitrariness.”(166)
Comparable situations
136.
In Australia — Salmon, the Appellate Body held that comparable
situations under Article 5.5 were those where either the same or a
similar disease, or where the same biological and economic consequences
were involved:
“Situations which involve a risk of entry,
establishment or spread of the same or a similar disease have some
common elements sufficient to render them comparable under Article 5.5.
Likewise, situations with a risk of the same or similar associated
potential biological and economic consequences also have some common
elements sufficient to render them comparable under Article 5.5. We,
therefore, consider that for ‘different’ situations to be comparable
under Article 5.5, there is no need for both the disease and the
biological and economic consequences to be the same or similar.”(167)
Level of protection as reflected in SPS
Measures
137.
The Panel on Australia — Salmon, addressed the question of how
to ascertain the level of sanitary protection chosen by a Member. The
Panel found that this level of sanitary protection will be reflected in
the sanitary measure itself, but noted that “imposing the same
sanitary measure for different situations does not necessarily result in
the same level of protection”.(168)
The Appellate Body did not disagree with these statements in particular,
but reversed the Panel’s related findings, because it disagreed with
the statement by the Panel that “the level of protection implied or
reflected in a sanitary measure or regime imposed by a WTO
Member can be presumed to be at least as high as the level of protection
considered to be appropriate by that Member.”(169)
138.
In response to Australia’s argument that a “situation” cannot be
compared under Article 5.5 if no risk assessment has been made in
respect of it, the Panel on Australia — Salmon, in a finding
not reviewed by the Appellate Body, found that since Australia had a
sanitary regime to address situations in respect of which no risk
assessment existed, a level of protection existed:
“[W]e consider that even though Australia has
not yet conducted import risk analyses for the other products compared
under Article 5.5, Australia does, nevertheless, have a level of
protection it considers to be appropriate for these other products.
Australia currently has a sanitary regime, imposing specific sanitary
measures or refraining from such regulation, for these other products.
This sanitary regime (whether or not specific measures are enacted)
reflects a level of protection. To have a specific level of protection,
there is no need to first complete a risk assessment … Article 5.5
directs us to compare for different situations the related levels of
protection as they are currently considered to be appropriate by
Australia and this whether or not the sanitary measures enacted to
achieve that level are based on a risk assessment. Of course, such
comparison would be easier and more accurate if for both situations an
appropriate risk assessment were available. However, according to Article 5.5
and our mandate set out in Article 11 of the DSU (to make an
‘objective assessment of the matter before [us], including an
objective assessment of the facts of the case’), we are called upon in
this case to make this comparison and to do so on the basis of the
evidence before us.”(170)
(iii) “Arbitrary
or unjustifiable” distinctions in levels of protection
139.
The Panel on EC — Hormones found arbitrary or unjustifiable
distinction in the level of protection in the European Communities’
regulation in that while the European Communities prohibited added
natural hormones with respect to beef, it did not attempt to limit
naturally occurring hormones.(171)
The Appellate Body disagreed:
“We do not share the Panel’s conclusions that
the above differences in levels of protection in respect of added
hormones in treated meat and in respect of naturally occurring hormones
in food, are merely arbitrary and unjustifiable. We consider there is a
fundamental distinction between added hormones (natural or synthetic)
and naturally-occurring hormones in meat and other foods. In respect of
the latter, the European Communities simply takes no regulatory action;
to require it to prohibit totally the production and consumption of such
foods or to limit the residues of naturally-occurring hormones in food,
entails such a comprehensive and massive governmental intervention in
nature and in the ordinary lives of people as to reduce the comparison
itself to an absurdity.”(172)
(iv)
Distinctions which “result in discrimination or a disguised
restriction on international trade”
Factors that result in a disguised restriction
on international trade
140.
The Panel on Australia — Salmon found three “warning
signals” and three “other factors more substantial in nature” with
respect to the issue of whether there was a disguised restriction on
trade arising from the distinct levels of protection existing in
Australia. The three warning signals that the Panel indicated were: (1)
“the arbitrary character of the Differences in levels of protection”(173);
(2) “the rather substantial difference in levels of protection”(174);
and (3) its earlier “two findings of inconsistency (with both Article 5.1
and 2.2)” which make it “seem that the measure at issue
constitutes an import prohibition, i.e., a restriction on international
trade, ‘disguised’ as a sanitary measure”.(175)
The three “other factors” were: (1) Australia was applying two
different implementing measures to products which represented the same
risk, leading to discrimination between salmon, on the one hand, and
herring used as bait and live ornamental finfish on the other; (2) the
change in conclusions in a preliminary report and in the final report
one year later; and (3) the fact that Australia was imposing a very
strict measure upon importation of salmon, but not similarly strict
standards for the internal movement of salmon products within Australia.
The Appellate Body agreed with the Panel with respect to the first two
warning signals. On the first warning signal it added that “the Panel
considered the arbitrary or unjustifiable character of Differences in
levels of protection as a ‘warning signal’ for, and not as ‘evidence’
of, a disguised restriction on international trade”.(176)
The Appellate Body was also in agreement with the Panel that the rather
substantial difference in levels of protection should be treated as a
separate (second) warning signal.(177)
The Appellate Body also approved of the third “warning factor”.
However, while it also agreed with the Panel on the second and third of
the “other factors”, the Appellate Body held, with respect to the
first of these “other factors”:
“We believe that the first ‘additional factor’
should indeed be excluded from the examination of the third element of Article 5.5. All ‘arbitrary or unjustifiable distinctions’ in levels
of protection will lead logically to discrimination between products,
whether the products are the same (e.g., discrimination between imports
of salmon from different countries or between imported salmon and
domestic salmon) or different (e.g., salmon versus herring used as bait
and live ornamental finfish). The first ‘additional factor’ is
therefore not different from the first warning signal, and should not be
taken into account as a separate factor in the determination of
whether an SPS measure results in a ‘disguised restriction on
international trade’.”(178)
Applicability of GATT Articles III and XX
jurisprudence
141.
The Panel on EC — Hormones considered pertinent, in its
analysis of the terms “discrimination” and “disguised restriction
on international trade”, the Appellate Body’s jurisprudence under
Articles III and XX of the GATT 1994. The Appellate Body
disagreed with this finding:
“We agree with the Panel’s view that ‘all
three elements [of Article 5.5] need to be distinguished and addressed
separately’.(179)
We also recall our interpretation that Article 5.5
and, in particular,
the terms ‘discrimination or a disguised restriction on international
trade’, have to be read in the context of the basic obligations
contained in Article 2.3, which requires that ‘sanitary … measures
shall not be applied in a manner which would constitute a
disguised restriction on international trade’. (emphasis added)
However, we disagree with the Panel on two points.
First, in view of the structural differences between the standards of
the chapeau of Article XX of the GATT 1994 and the elements of
Article 5.5 of the SPS Agreement, the reasoning in our Report in
United States — Gasoline, quoted by Panel, cannot be casually
imported into a case involving Article 5.5 of the SPS Agreement.
Secondly, in our view, it is similarly unjustified to assume
applicability of the reasoning of the Appellate Body in Japan — Alcoholic Beverages
about the inference that may be drawn from the sheer size of a tax
differential for the application of Article
III:2, second sentence, of
the GATT 1994, to the quite different question of whether arbitrary or
unjustifiable differences in levels of protection against risks for
human life or health, ‘result in discrimination or a disguised
restriction on international trade’.”(180)
142.
The Appellate Body on EC Hormones explained its reluctance to
apply its jurisprudence under Article III:2 of the GATT 1994 to
Article 5.5 of the SPS Agreement by noting that while there was
a “clear and linear relationship” between a tax differential and
protection given to domestic products, no such clear relationship
existed between differentials of levels of protection of human health
and protection given to domestic products:
“The differential involved in Japan — Alcoholic Beverages
was a tax differential, which is very different from a differential in
levels of protection. Unlike a differential in levels of protection, a
tax differential is always expressed in quantitative terms and a
significant tax differential in favour of domestic products will
inevitably affect the competitiveness of imported products and thus
afford protection to domestic products. There is a clear and linear
relationship between a tax differential and the protection afforded to
domestic products. There is, however, no such relationship between a
differential in levels of human health protection and discrimination or
disguised restriction on trade.”(181)
Differences in levels of protection for
comparable situations not sufficient
143.
After making its findings referenced in paragraphs 141–142 above,
the Appellate Body on EC — Hormones
reversed the Panel’s finding that the EC measure in question
constituted “discrimination or a disguised restriction on
international trade”. The Appellate Body held with respect to the
difference in levels of protection for certain comparable situations:
“[T]he degree of difference, or the extent of
the discrepancy, in the levels of protection, is only one kind of factor
which, along with others, may cumulatively lead to the conclusion that
discrimination or a disguised restriction on international trade in fact
results from the application of a measure or measures embodying one or
more of those different levels of protection. Thus, we do not think that
the difference between a ‘no residues’ level and ‘unlimited
residues’ level is, together with a finding of an arbitrary or
unjustifiable difference, sufficient to demonstrate that the third, and
most important, requirement of Article 5.5 has been met … Evidently,
the answer to the question whether arbitrary or unjustifiable
differences or distinctions in levels of protection established by a
Member do in fact result in discrimination or a disguised restriction on
international trade must be sought in the circumstances of each
individual case.”(182)
(d) “guidelines to
further practical implementation …”
144.
At its meeting of 21–22 June 2000, the SPS Committee adopted the
Guidelines to Further the Practical Implementation of Article 5.5.(183)
These guidelines address the objective of achieving consistency in the
application of the concept of the appropriate level of protection.(184)
(e) Relationship
with other paragraphs of Article 5
145.
On the relationship between Articles 5.1 and 5.5, see
paragraph 123 above.
(f) Relationship
with other Articles
(i) Article 1.1
146.
As relates to applicability of the SPS Agreement to measures
adopted before 1 January 1995 and measures adopted since, see paragraph 6
above.
6. Article 5.6
(a) Cumulative
elements
147.
In Australia — Salmon, with respect to the structure of
Article 5.6, the Appellate Body identified three separate elements and
found that these elements applied cumulatively:
“We agree with the Panel that Article 5.6 and,
in particular, the footnote to this provision, clearly provides a
threepronged test to establish a violation of Article
5.6. As already
noted, the three elements of this test under Article 5.6 are that there
is an SPS measure which:
(1) is reasonably available taking into
account technical and economic feasibility;
(2) achieves the Member’s
appropriate level of sanitary or phytosanitary protection; and
(3) is significantly less restrictive to trade
than the SPS measure contested.
These three elements are cumulative in the sense
that, to establish inconsistency with Article 5.6, all of them have to
be met. If any of these elements is not fulfilled, the measure in
dispute would be consistent with Article 5.6. Thus, if there is no
alternative measure available, taking into account technical and
economic feasibility, or if the alternative measure does not
achieve the Member’s appropriate level of sanitary or phytosanitary
protection, or if it is not significantly less trade-restrictive, the
measure in dispute would be consistent with Article
5.6.”(185)
148.
In Japan — Agricultural Products II, the Appellate Body
confirmed the finding referenced in paragraph 147
above:(186)
(b) “achieves the
appropriate level of … protection”
(i) Determining
“appropriate level of … protection” as a “prerogative” of the
Member concerned
149.
The Appellate Body on Australia — Salmon emphasized that
determining the appropriate level of protection is the prerogative
of the Member concerned:
“We do not believe that Article 11 of the DSU,
or any other provision of the DSU or of the SPS Agreement,
entitles the Panel or the Appellate Body, for the purpose of applying
Article 5.6 in the present case, to substitute its own reasoning about
the implied level of protection for that expressed consistently by
Australia. The determination of the appropriate level of protection, a
notion defined in paragraph 5 of Annex A … is a prerogative of
the Member concerned and not of a panel or of the Appellate Body.”(187)
150.
In Japan — Agricultural Products II, the Panel emphasized that
it was up to Japan to determine its appropriate level of protection:
“Both parties agree that it is up to Japan to
determine its appropriate level of phytosanitary protection with respect
to codling moth. We agree since the SPS Agreement (in paragraph 5
of Annex A) defines the ‘appropriate level of … phytosanitary
protection’ as ‘[t]he level of protection deemed appropriate by the
Member establishing a … phytosanitary measure to protect …
plant life or health within its territory’(188), in casu,
the level deemed appropriate by Japan.”(189)
(ii) Implied or
explicit level of protection
General
151.
In Australia — Salmon, the question arose whether a WTO Member
is obliged to determine, positively, its appropriate level of
protection. While the Panel had held that no such obligation existed(190),
the Appellate Body determined that such an obligation exists under the SPS Agreement,
albeit only implicitly. However, it also held that where a Member fails
to determine its appropriate level of protection, this level of
protection can be established by a panel on the basis of existing
relevant SPS measures:
“We recognize that the SPS Agreement
does not contain an explicit provision which obliges WTO
Members to determine the appropriate level of protection. Such an
obligation is, however, implicit in several provisions of the SPS Agreement,
in particular, in paragraph 3 of Annex B,
Article 4.1, Article 5.4 and
Article 5.6 of the
SPS Agreement …
We thus believe that the SPS Agreement
contains an implicit obligation to determine the appropriate level of
protection. We do not believe that there is an obligation to determine
the appropriate level of protection in quantitative terms. This does not
mean, however, that an importing Member is free to determine its level
of protection with such vagueness or equivocation that the application
of the relevant provisions of the SPS Agreement, such as Article
5.6,
becomes impossible. It would obviously be wrong to interpret the SPS
Agreement in a way that would render nugatory entire Articles or
paragraphs of Articles of this Agreement and allow Members to escape
from their obligations under this Agreement.
… we believe that in cases where a Member does
not determine its appropriate level of protection, or does so with
insufficient precision, the appropriate level of protection may be
established by panels on the basis of the level of protection reflected
in the SPS measure actually applied. Otherwise, a Member’s failure to
comply with the implicit obligation to determine its appropriate level
of protection — with sufficient precision — would allow it to escape
from its obligations under this Agreement and, in particular, its
obligations under Articles 5.5 and 5.6.”(191)
Statement by Member
152.
In Australia — Salmon, the Panel had found that “the level of
protection implied or reflected in a sanitary
measure or regime imposed by a WTO Member can be presumed to be at
least as high as the level of protection considered to be appropriate
by that Member.”(192)
The Appellate Body disagreed with this statement, in particular because
Australia had explicitly stated that its level of protection was
different from the one reflected in its measure. The Appellate Body
stressed that an explicit statement by a Member about its level of
protection could not be questioned by a Panel or the Appellate Body. See
paragraph 149 above.
As reflected by SPS measure
153.
The Appellate Body on Australia — Salmon, also emphasized the
Differences between the “appropriate level of protection” and the
SPS measure:
“The ‘appropriate level of protection’
established by a Member and the ‘SPS measure’ have to be clearly
distinguished.(193)
They are not one and the same thing. The first is an objective,
the second is an
instrument chosen to attain or implement that objective.
It can be deduced from the provisions of the
SPS Agreement that the determination by a Member of the ‘appropriate
level of protection’ logically precedes the establishment or decision
on maintenance of an ‘SPS measure’.
… The words of Article
5.6, in particular the
terms ‘when establishing or maintaining sanitary …
protection’, demonstrate that the determination of the level of
protection is an element in the decision-making process which logically precedes
and is
separate from the establishment or maintenance of the SPS measure.
It is the appropriate level of protection which determines the SPS
measure to be introduced or maintained, not the SPS measure introduced
or maintained which determines the appropriate level of protection. To
imply the appropriate level of protection from the existing SPS measure
would be to assume that the measure always achieves the appropriate
level of protection determined by the Member. That clearly cannot be the
case.”(194)
(c) “significantly
less restrictive to trade”
154.
In Australia — Salmon, the Panel examined whether the measure
at issue met the requirement of an alternative measure which is “significantly
less restrictive to trade”.(195)
The Panel found:
“Canada argues that all four alternative options
set out in the 1996 Final Report are significantly less trade
restrictive. In its request for access to the Australian market, Canada
examined in particular headless, eviscerated product and advocated that
these products could be safely imported. We recall that the measure
imposed by Australia (in effect, certain heat treatment requirements)
prohibits the importation into Australia of fresh, chilled or
frozen salmon, including the salmon products further examined. All four
alternative options outlined above would allow imports of the
salmon products further examined, albeit under specific conditions
(e.g., the salmon products would have to be retail-ready fillets,
eviscerated, headless or gilled, etc…). We consider that even imposing
the most stringent of these specific conditions would still be
significantly less restrictive to trade than an outright prohibition. As
opposed to any of the other conditions, heat treatment actually changes
the nature of the product and limits its use. Heat-treated salmon can
obviously no longer be consumed as fresh salmon. Eviscerated, headless
or filleted salmon, on the other hand, can either be consumed as fresh
salmon or cooked salmon.(196)
We consider, therefore, that Canada has raised a presumption that all
four alternatives outlined in the 1996 Final Report are ‘significantly
less restrictive to trade’ than the measure in dispute and that
Australia has not rebutted this presumption.”(197)
(d) “taking into
account technical and economic feasibility”
155.
The Panel on Australia — Salmon found that there existed
alternatives to the Australian measure, as evidenced by the Australian
report at issue, and found that nothing implied that any of these four
alternatives would be technically or economically unfeasible.(198)
The Appellate Body reversed this finding, because it had earlier found
that the Panel had examined the wrong measure.(199)
(ii) “Reasonably
available”
156.
The Panel on Australia — Salmon
(Article 21.5 — Canada), while examining one of the four
alternatives proposed by Canada, stated with respect to whether a
measure was “reasonably available” within the meaning of footnote 3
in Article 5.6:
“[S]ince one can assume that current Australian
requirements are ‘reasonably available taking into account technical
and economic feasibility’, also a regime without the consumer-ready
requirements [the current Australian requirements] … would be so.
Given that inspection and control to release from quarantine only
product that meets the consumer-ready requirements would no longer be
necessary, a regime without the consumer ready requirements would be
even more reasonably available in the sense of Article
5.6.”(200)
157.
With regard to the phrase “achieves [the Member’s] appropriate level
of … protection” under Article 5.6, see Section
VI.B.6(b)
above.
(iii) Burden
of proof
158.
In Japan — Agricultural Products II, concerning the issue of
the burden of proof, the Appellate Body reversed the Panel’s findings
on Article 5.6, holding that the Panel could not have made the finding
at issue, because the United States as the complaining party had not
made a relevant claim and, a fortiori, had not established a prima facie
case. The Appellate Body then stressed that the investigative authority
of a panel did not stretch so far as to “make the case for a
complaining party”:
“Pursuant to the rules on burden of proof set
out above, we consider that it was for the United States [complainant]
to establish a prima facie case that there is an alternative
measure that meets all three elements under Article 5.6 in order to
establish a prima facie case of inconsistency with Article 5.6.
Since the United States did not even claim before the Panel that the ‘determination
of sorption levels’ is an alternative measure which meets the three
elements under Article 5.6, we are of the opinion that the United States
did not establish a prima facie case that the ‘determination
of sorption levels’ is an alternative measure within the meaning of Article 5.6.”(201)
(iv)
Relationship with other Articles
Article 1.1
159.
On the applicability of the SPS Agreement to measures adopted
before 1 January 1995 and measures adopted since, see paragraph
6
above.
Article 2.2
160.
In Australia — Salmon, the Panel noted that “Article 5.6
must be read in context … an important part of the context of Article
5 is Article 2. We consider that
Article 5.6 should, in particular, be
read in light of Article 2.2”.(202)
The Appellate Body reversed the Panel’s finding because it found that
the Panel had examined the wrong measure.(203)
The Panel on Japan — Agricultural Products II reached the
same conclusion on the relationship between Articles 2.2 and
5.6, but
the Appellate Body did not address this issue on appeal.(204)
161.
In Japan — Agricultural Products II, the Panel noted that its
“findings under Article 5.6 would stand even if the measure in dispute
were not in violation of Article 2.2”.(205)
It added that “even if we were to have found that Japan’s measure is
maintained with sufficient scientific evidence in accordance with
Article 2.2, we would then be called upon to examine whether the measure
is consistent with Article 5.6.”(206)
The Appellate Body did not specifically address this statement on
appeal.
7. Article 5.7
(a) General
162.
The Appellate Body on Japan — Agricultural Products II
referred to Article 5.7 as a “qualified exemption”. See
paragraph 36
above:
“Article 5.7 operates as a qualified
exemption from the obligation under Article 2.2 not to maintain SPS
measures without sufficient scientific evidence. An overly broad and
flexible interpretation of that obligation would render Article 5.7
meaningless.”(207)
(i) Four
cumulative requirements
163.
In Japan — Agricultural Products II, the Appellate Body
identified four requirements imposed upon a Member having recourse to
this provision. The Appellate Body added that these four requirements
are cumulative in nature:
“Article 5.7 of the SPS Agreement sets
out four requirements which must be met in order to adopt and maintain a
provisional SPS measure. Pursuant to the first sentence of Article
5.7,
a Member may provisionally adopt an SPS measure if this measure is:
(1) imposed in respect of
a situation where ‘relevant scientific information is insufficient’;
and
(2) adopted ‘on the
basis of available pertinent information’.
Pursuant to the second sentence of Article
5.7, such a provisional measure may not be maintained unless the Member
which adopted the measure:
(1) ‘seek[s] to obtain
the additional information necessary for a more objective assessment of
risk’; and
(2) ‘review[s] the …
measure accordingly within a reasonable period of time’.
These four requirements are clearly cumulative in
nature and are equally important for the purpose of determining
consistency with this provision. Whenever one of these four
requirements is not met, the measure at issue is inconsistent with
Article 5.7.”(208)
(b) “where
relevant scientific evidence is insufficient”
(i) Meaning
164.
Upholding the Panel’s finding that Japan’s phytosanitary measure at
issue was not imposed in a situation “where relevant scientific
evidence is insufficient”, the Appellate Body on Japan — Apples
said that “relevant scientific evidence” will be “insufficient”
within the meaning of Article 5.7 if the body of available scientific
evidence does not allow, in quantitative or qualitative terms, the
performance of an adequate assessment of risks as required under Article 5.1
and as defined in Annex A to the SPS Agreement:
“[J]apan’s reliance on the opposition between
evidence ‘in general’ and evidence relating to specific aspects of a
particular subject matter is misplaced. The first requirement of Article
5.7 is that there must be insufficient scientific evidence. When a panel
reviews a measure claimed by a Member to be provisional, that panel must
assess whether ‘relevant scientific evidence is insufficient’. This
evaluation must be carried out, not in the abstract, but in the light of
a particular inquiry. The notions of ‘relevance’ and ‘insufficiency’
in the introductory phrase of Article 5.7 imply a relationship between
the scientific evidence and something else. Reading this introductory
phrase in the broader context of Article 5. of the SPS Agreement,
which is entitled ‘Assessment of Risk and Determination of the
Appropriate Level of Sanitary or Phytosanitary Protection’, is
instructive in ascertaining the nature of the relationship to be
established. Article 5.1 sets out a key discipline under
Article 5,
namely that ‘Members shall ensure that their sanitary or phytosanitary
measures are based on an assessment … of the risks to human, animal or
plant life or health’.(209)
This discipline informs the other provisions of Article
5, including
Article 5.7. We note, as well, that the second sentence of Article 5.7
refers to a ‘more objective assessment of risks’. These contextual
elements militate in favour of a link or relationship between the first
requirement under Article 5.7 and the obligation to perform a risk
assessment under Article 5.1: ‘relevant scientific evidence’ will be
‘insufficient’ within the meaning of Article 5.7 if the body of
available scientific evidence does not allow, in quantitative or
qualitative terms, the performance of an adequate assessment of risks as
required under Article 5.1 and as defined in Annex A to the SPS
Agreement. Thus, the question is not whether there is sufficient
evidence of a general nature or whether there is sufficient evidence
related to a specific aspect of a phytosanitary problem, or a specific
risk. The questions is whether the relevant evidence, be it ‘general’
or ‘specific’, in the Panel’s parlance, is sufficient to permit
the evaluation of the likelihood of entry, establishment or spread of,
in this case, fire blight in Japan.”(210)
165.
The Appellate Body on Japan — Apples
also rejected Japan’s interpretation of Article 5.7 through the
concept of “scientific uncertainty”, and said that the application
of Article 5.7 is triggered not by the existence of scientific
uncertainty, but rather by the insufficiency of scientific evidence and
these two concepts — “insufficiency of scientific evidence” and
“scientific uncertainty” — are not interchangeable:
“Japan challenges the Panel’s statement that
Article 5.7 is intended to address only ‘situations where little, or
no, reliable evidence was available on the subject matter at issue’(211)
because this does not provide for situations of ‘unresolved
uncertainty’. Japan draws a distinction between ‘new uncertainty’
and ‘unresolved uncertainty’(212),
arguing that both fall within Article 5.7. According to Japan, ‘new
uncertainty’ arises when a new risk is identified; Japan argues that
the Panel’s characterization that ‘little, or no, reliable evidence
was available on the subject matter at issue’ is relevant to a
situation of ‘new uncertainty’.(213)
We understand that Japan defines ‘unresolved uncertainty’ as
uncertainty that the scientific evidence is not able to resolve, despite
accumulated scientific evidence.(214)
According to Japan, the risk of transmission of fire blight through
apple fruit relates essentially to a situation of ‘unresolved
uncertainty’.(215)
Thus, Japan maintains that, despite considerable scientific evidence
regarding fire blight, there is still uncertainty about certain aspects
of transmission of fire blight. Japan contends that the reasoning of the
Panel is tantamount to restricting the applicability of Article 5.7 to
situations of ‘new uncertainty’ and to excluding situations of ‘unresolved
uncertainty’; and that, by doing so, the Panel erred in law.(216)
We disagree with Japan. The application of Article
5.7 is triggered not by the existence of scientific uncertainty, but
rather by the insufficiency of scientific evidence. The text of Article
5.7 is clear: it refers to ‘cases where relevant scientific evidence
is insufficient’, not to ‘scientific uncertainty’. The two
concepts are not interchangeable. Therefore, we are unable to endorse
Japan’s approach of interpreting Article 5.7 through the prism of ‘scientific
uncertainty’.”(217)
(c) “seek to
obtain additional information”
166.
In Japan — Agricultural Products II, in respect of the third
requirement under Article 5.7, the Appellate Body stated that the
additional information to be sought must be “germane” to conducting
a more objective risk assessment:
“Neither Article 5.7 nor any other provision of
the SPS Agreement sets out explicit prerequisites regarding the
additional information to be collected or a specific collection
procedure. Furthermore, Article 5.7 does not specify what actual results
must be achieved; the obligation is to ‘seek to obtain’ additional
information. However, Article 5.7 states that the additional information
is to be sought in order to allow the Member to conduct ‘a more
objective assessment of risk’. Therefore, the information sought must
be germane to conducting such a risk assessment, i.e., the evaluation of
the likelihood of entry, establishment or spread of, in casu, a
pest, according to the SPS measures which might be applied. We note that
the Panel found that the information collected by Japan does not ‘examine
the appropriateness’ of the SPS measure at issue and does not address
the core issue as to whether ‘varietal characteristics cause a
divergency in quarantine efficacy’. In the light of this finding, we
agree with the Panel that Japan did not seek to obtain the additional
information necessary for a more objective risk assessment.”(218)
(d) “review …
within a reasonable period of time”
167.
The Appellate Body on Japan — Agricultural Products II found
that the “reasonable period of time” had to be established on a
case-by-case basis:
“In our view, what constitutes a ‘reasonable
period of time’ has to be established on a case-by-case basis and
depends on the specific circumstances of each case, including the
difficulty of obtaining the additional information necessary for the
review and the characteristics of the provisional SPS measure.
In the present case, the Panel found that collecting the necessary
additional information would be relatively easy. Although the obligation
‘to review’ the varietal testing requirement has only been in
existence since 1 January 1995, we agree with the Panel that Japan has
not reviewed its varietal testing requirement ‘within a reasonable
period of time’.”(219)
(e) Burden of proof
168.
In Japan — Apples, concerning Japan’s argument in the
alternative under Article 5.7, which was made in the event that the
Panel rejected Japan’s view that “sufficient scientific evidence”
exists to maintain the measure within the meaning of Article
2.2, the
Panel assigned the burden of proof to Japan. The Panel’s assignment of
the burden of proof was not appealed.(220)
“We understand Japan to be claiming that the
phytosanitary measure at issue is justified under Article 5.7
‘in the
alternative’, should the Panel find that the measure is maintained
without sufficient scientific evidence within the meaning of Article
2.2. We first note that arguing in the alternative is a well-established
judicial practice and arguing a point in the alternative of another
point often implies that there may be some contradictions between the
two lines of argumentation if they were presented concurrently.
In this instance, we have determined above that
Japan’s measure is maintained without sufficient scientific evidence
within the meaning of Article 2.2, which is the circumstance in which
Japan invokes Article 5.7 in the alternative and claims that this
provisional measure has been in place since the date of entry into force
of the SPS Agreement in 1995.
We will therefore now consider whether the measure
at issue can be justified as a provisional measure within the meaning of
Article 5.7 of the SPS Agreement. Before doing so, however, we
find it relevant to recall that the burden is on Japan, as the party
invoking Article 5.7 to make a prima facie case in support of its
position.”(221)
(f) Treatment of the
precautionary principle
169.
The Appellate Body on EC — Hormones
noted the following concerning Article 5.7 and the precautionary
principle: “[T]he precautionary principle indeed finds reflection in
Article 5.7 of the SPS Agreement. We agree, at the same time,
with the European Communities, that there is no need to assume that Article 5.7
exhausts the relevance of a precautionary principle …”(222)
(g) Relationship
with other Articles
(i) Article 2.2
170.
Regarding the relationship between Article 5.7
and Article 2.2, see
paragraphs 35–37
above.
8. Article 5.8
(a) General
171.
The Panel on EC — Hormones allocated the burden of proof to
the responding party, where the responding party enacted a measure not
based on an international standard. In doing so, the Panel based its
finding partially upon Article 5.8. The Appellate Body disagreed and
indicated that Article 5.8 is not intended to address the burden of
proof problem:
“Article 5.8 of the SPS Agreement does
not purport to address burden of proof problems; it does not deal with a
dispute settlement situation. To the contrary, a Member seeking to
exercise its right to receive information under Article
5.8 would, most
likely, be in a pre-dispute situation, and the information or
explanation it receives may well make it possible for that Member to
proceed to dispute settlement proceedings and to carry the burden of
proving on a prima facie basis that the measure involved is not
consistent with the SPS Agreement.”(223)
(b) Relationship
with other Articles
(i) Article 2.2
172.
While discussing the burden of proof under Article
2.2, the Appellate
Body on Japan — Agricultural Products II made reference to Article
5.8. See paragraph 17 above.
(c) Article 3
173.
The Panel on Australia — Salmon
discussed the relationship between Article 5 on the one hand, and
Articles 2 and 3 on the other. See
paragraphs 46–48
above.
174.
Also, the Appellate Body in Japan — Agricultural Products II
touched on the relationship of Article 5 with
Articles 2.2 and 3.3. See
Section III.B.1(a)(ii) above.
Footnotes:
107. See also paras. 4 and
5 of Annex 1A. back to text
108.
Panel Report on EC — Hormones (Canada), para. 8.104; Panel
Report on
EC — Hormones (US), para. 8.101. back to text
109. Panel
Report on
Australia — Salmon, para. 8.41. A similar statement was
made by the Panel
on Japan — Agricultural Products II, referenced in para.
23 of this Chapter. back to text
110. Appellate
Body Report on
Japan — Apples, para. 215. back to text
111. Appellate
Body Report on
EC — Hormones, para. 188. back to text
112. Appellate Body Report on
EC — Hormones, paras. 189–190. back to text
113. Appellate Body Report on
EC — Hormones, paras. 193–194. back to text
114. Appellate
Body Report on
EC — Hormones, para. 194. back to text
115. Appellate
Body Report on
EC — Hormones, para. 177. back to text
116. Appellate
Body Report on
Australia — Salmon, para. 130. back to text
117. (footnote original) Panel
Report on
EC — Hormones (US), para. 8.94; and
Panel Report on EC — Hormones (Canada), para. 8.97. back to text
118. (footnote original) Panel
Report on
EC — Hormones (US), para. 8.95; and
Panel Report on EC — Hormones (Canada), para. 8.98. back to text
119. Appellate
Body Report on
EC — Hormones, para. 181. back to text
120. Appellate
Body Report on
Australia — Salmon, para. 121. In
Japan — Agricultural Products II, the Appellate Body endorsed
the aforesaid three-pronged test, para. 112. This test was also used by
the Panel
in Australia — Salmon (Article 21.5 — Canada), para.
7.41. back to text
121. Panel
Report on
Australia — Salmon, para. 8.98. back to text
122. Appellate
Body Report on
Australia — Salmon, para. 104. back to text
123. Appellate
Body Report on
Australia — Salmon, para. 136. back to text
124. (footnote original) Panel
Report, para. 8.73. back to text
125. (footnote original) Supra.,
para. 124. back to text
126. (footnote original) Supra.,
para 124. back to text
127. Appellate
Body Report on
Australia — Salmon, para. 135. back to text
128. Appellate
Body Report on
EC — Hormones, para. 201. back to text
129. Appellate
Body Report on
EC — Hormones, para. 201. back to text
130. Panel
Reports on
EC — Hormones (US), para. 8.257; EC
— Hormones (Canada), para. 8.258. back to text
131. Panel
Report on
Australia — Salmon, para. 8.58. back to text
132. Appellate
Body Report on
EC — Hormones, para. 200. back to text
133. Appellate
Body Report on
EC — Hormones, para. 190. back to text
134. Panel Report on
Australia — Salmon, paras. 8.136–8.137. back to text
135.
Panel Report on EC — Hormones (Canada), para. 8.102; Panel
Report on
EC — Hormones (US), para. 8.99. back to text
136. Panel
Report on
Australia — Salmon, paras. 8.56 and 8.100. back to text
137. Panel Report on
Australia — Salmon
(Article 21.5 — Canada), paras. 7.76–7.77. back to text
138. Panel
Report on
Australia — Salmon, para. 8.95. back to text
139. Appellate Body Report on
Australia — Salmon, paras. 103–104. back to text
140. Panel
Report on
Australia — Salmon, para. 8.81. back to text
141. Appellate
Body Report on
Australia — Salmon, para. 125. back to text
142. Appellate
Body Report on
EC — Hormones, para. 185. back to text
143. In the footnote to this sentence, the
Appellate Body cited Panel
Reports on
EC — Hormones (US), paras. 8.124, 8.134, 8.136, 8.151,
8.153, 8.161, and 8.162; EC
— Hormones (Canada), paras. 8.127, 8.137, 8.139, 8.154, 8.156,
8.164, and 8.165. back to text
144. In the footnote to this sentence, the
Appellate Body cited Panel Reports on
EC — Hormones (US), paras. 8.152–8.153; EC — Hormones (Canada),
paras. 8.155–8.156. back to text
145. (footnote original) US Panel
Report, footnote 331; Canada Panel Report, footnote 437. back to text
146. Appellate
Body Report on
EC — Hormones, para. 186. back to text
147. Appellate
Body Report on
Japan — Apples, para. 241. back to text
148. Appellate
Body Report on
EC — Hormones, para. 129. back to text
149. Panel
Report on
Australia — Salmon, para. 8.71. back to text
150. (footnote original) See further
in para. 8.70. back to text
151. Panel
Report on
Australia — Salmon, para. 8.57. back to text
152. Appellate
Body Report on
EC — Hormones, para. 191. back to text
153. Panel
Report on
Australia — Salmon, para. 8.126. back to text
154. (footnote original) Panel
Reports on
EC — Hormones (US), para. 8.107 and EC
— Hormones (Canada), para. 8.110. back to text
155. Appellate
Body Report on
EC — Hormones, para. 187. back to text
156. Appellate
Body Report on
EC — Hormones, para. 205. back to text
157. Appellate
Body Report on
EC — Hormones, para. 206. back to text
158. Appellate
Body Report on
Australia — Salmon, para. 138. back to text
159. Panel
Report on
Australia — Salmon, para. 8.52. back to text
160.
Panel Report on EC — Hormones (Canada), para. 8.169; Panel
Report on
EC — Hormones (US), para. 8.166. back to text
161. Appellate Body Report on
Australia — Salmon, paras. 205–207. back to text
162. Panel
Report on
Australia — Salmon, para. 8.126. back to text
163. Appellate Body Report on
EC — Hormones, paras. 214–215. back to text
164. Appellate
Body Report on
EC — Hormones, para. 213. back to text
165.
Panel Report on EC — Hormones (Canada), para. 8.179; Panel
Report on
EC — Hormones (US), para. 8.176. back to text
166. Appellate
Body Report on
EC — Hormones, para. 217. back to text
167. Appellate
Body Report on
Australia — Salmon, para. 146. back to text
168. Panel Report on
Australia — Salmon, paras. 8.123–8.124. back to text
169. Appellate
Body Report on
Australia — Salmon, para. 196. back to text
170. Panel Report on
Australia — Salmon, paras. 8.125–8.126. back to text
171.
Panel Report on EC — Hormones (Canada), para. 8.193; Panel
Report on
EC — Hormones (US), para. 8.190. back to text
172. Appellate Body Report on
EC — Hormones, para. 221. When comparing the levels of
protection for hormones used for growth promotion purposes and hormones
used for therapeutic and zootechnical purposes — a comparison not
further pursued by the panels — the Appellate Body, referring to the
Differences in frequency and scale of the two treatments and the strict
mode of administration of the latter treatment, found that the
distinction in levels of protection “is not, in itself, ‘arbitrary
or unjustifiable’.” (see paras. 222–225
of the Report). back to text
173. Panel
Report on
Australia — Salmon, para. 8.149. back to text
174. Panel
Report on
Australia — Salmon, para. 8.150. back to text
175. Panel
Report on
Australia — Salmon, para. 8.151. back to text
176. Appellate
Body Report on
Australia — Salmon, para. 162. back to text
177. Appellate
Body Report on
Australia — Salmon, para. 164. back to text
178. Appellate
Body Report on
Australia — Salmon, para. 169. back to text
179. The Appellate Body cited Panel
Reports on
EC — Hormones (US), para. 8.184; and EC
— Hormones (Canada), para. 8.187. back to text
180. Appellate
Body Report on
EC — Hormones, paras. 238 and 239. back to text
181. Appellate
Body Report on
EC — Hormones, fn. 251. back to text
182. Appellate
Body Report on
EC — Hormones, para. 240. back to text
183. G/SPS/R/19,
Section VII. The text of the adopted Guidelines can be found in G/SPS/15. back to text
184. G/SPS/15. back to text
185. Appellate
Body Report on
Australia — Salmon, para. 194. back to text
186. Appellate
Body Report on
Japan — Agricultural Products II, para. 95. back to text
187. Appellate
Body Report on
Australia — Salmon, para. 199. back to text
188. (footnote original) Emphasis
added. back to text
189. Panel
Report on
Japan — Agricultural Products II, para. 8.81. back to text
190. Panel
Report on
Australia — Salmon, para. 8.107. back to text
191. Appellate Body Report on
Australia — Salmon, paras. 205–207. back to text
192. Panel
Report on
Australia — Salmon, para. 8.173 back to text
193. (footnote original) That the
level of protection and the SPS measure applied have to be clearly
distinguished results already from our Report in European
Communities — Hormones, WT/DS26/AB/R,
WT/DS48/AB/R, adopted 13 February 1998, para. 214. back to text
194. Appellate Body Report on
Australia — Salmon, paras. 200–201, 203. back to text
195. Panel Reports on
Australia — Salmon, para. 8.182; Australia — Salmon (Article 21.5 — Canada),
paras. 7.150–7.153; and
Japan — Agricultural Products II,
paras. 8.79, 8.89, 8.95–8.96 and 8.103–8.104. back to text
196. (footnote original) Out of a total of 66,234 tonnes
of Canadian salmon exports in 1996, 50,838 tonnes were fresh and frozen
salmon; the rest was canned salmon. As opposed to canned or heat-treated
salmon, Canada submits that “recent trends indicate consumer
preference for fresh and frozen salmon” (Canada, First Submission,
para. 31). Australia seems to recognize this when it states that: “For
[Australian] farmed Atlantic salmon [the main salmon species
commercialized in Australia] supply to both the domestic and export
market is predominantly of whole fresh fish” (Australia, Second
Submission, para. 58). back to text
197. Panel
Report on
Australia — Salmon, para. 8.182. back to text
198. Panel
Report on
Australia — Salmon, para. 8.171. back to text
199. Appellate
Body Report on
Australia — Salmon, para. 204. back to text
200. Panel
Report on
Australia — Salmon (Article 21.5 — Canada), paras.
7.146. back to text
201. Appellate
Body Report on
Japan — Agricultural Products II, para. 126. back to text
202. Panel
Report on
Australia — Salmon, para. 8.165. back to text
203. Appellate
Body Report on
Australia — Salmon, para. 213. back to text
204. Panel
Report on
Japan — Agricultural Products II, para. 8.71. back to text
205. Panel
Report on
Japan — Agricultural Products II, para. 7.4. back to text
206. Panel
Report on
Japan — Agricultural Products II, para. 8.102. back to text
207. Appellate
Body Report on
Japan — Agricultural Products II, para. 80. back to text
208. Appellate Body Report on
Japan —
Agricultural Products II, para. 89. In this case, the Panel
examined whether the measure at issue met with these four requirements.
See Panel Report on
Japan — Agricultural
Products II, paras. 8.56–8.57 and 8.60. back to text
209. (footnote original) The risk assessment referred to
in Article 5.1 is defined in Annex A of the
SPS
Agreement. back to text
210. Appellate
Body Report on
Japan — Apples, para. 179. back to text
211. (footnote original) Panel Report, para. 8.219. back to text
212. (footnote original) Japan’s appellant’s
submission, para. 101. back to text
213. (footnote original) Ibid., footnote 76 to
para. 98. back to text
214. (footnote original) Ibid., para. 98. back to text
215. (footnote original) Japan’s appellant’s
submission, paras. 105–110. back to text
216. (footnote original) Ibid., para. 110. back to text
217. Appellate Body Report on
Japan — Apples, paras. 183–184. back to text
218. Appellate
Body Report on
Japan — Agricultural Products II, para. 92. back to text
219. Appellate
Body Report on
Japan — Agricultural Products II, para. 93. back to text
220. Panel
Report on Japan — Apples, para. 8.212. back to text
221. Panel Report on Japan — Apples,
paras. 8.210 — 8.212. back to text
222. Appellate
Body Report on
EC — Hormones, para. 124. back to text
223.
Appellate
Body Report on
EC — Hormones, para. 102. This was confirmed by the Panel
in Japan — Apples, para. 8.41. back to text
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