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Background back to top
Fire blight is a disease of apple trees and other
plants which is caused by the bacteria Erwinia amylovora (E. amylovora).
Although it poses no risk to human health, it can damage trees and cause
infected fruit to shrivel and turn brown. The fire blight exists in some regions
of the United States, but does not currently exist in Japan. Japan prohibits
imports of fresh apple fruit unless a set of requirements has been met. These
include requirements that the fruit come from designated orchards free of fire
blight; that no other fire blight host plants exist in the designated orchards;
that the orchards be surrounded by a 500-metre buffer zone free of fire blight;
that the orchard and buffer zones be inspected at least three times each year;
that the harvested apples be treated with a chlorine surface wash; that the
containers for harvesting and the interior of the packing facilities be
disinfected with a chlorine treatment; that apples designated for Japan be kept
separate from other apples, and that US officials certify the fruit has been
treated as required; and that Japanese officials confirm the certification and
inspect the facilities. Japan claimed that all of these requirements constitute
an integrated systems approach and are necessary to avoid the introduction of
fire blight into Japan, which has a fire blight susceptible environment.
The United States argued that despite a long history of world trade in apples,
there was no evidence that mature, symptomless apples such as those exported
from the United States had ever spread fire blight, and no scientific evidence
that they were capable of being a pathway for the spread of the disease.
The Panel back to top
The Panel was established in June 2002. The Panel
members were Mr. Michael Cartland (chairman), a former Hong Kong trade diplomat,
Ms Kathy Ann Brown, a trade diplomat representing St. Lucia, and Mr. Christian
Haeberli, a Swiss trade diplomat. The Panel consulted scientific experts on fire
blight and on the transmission of the disease. The experts were chosen in
consultation with the parties based on lists provided by the secretariat of the
International Plant Protection Convention (IPPC).
Legal issues and findings back to top
Scientific justification —
Article
2.2
There was no disagreement among the parties that fire
blight was not currently found in Japan, that the disease did occur in some US
apple orchards, and that the disease could cause serious phytosanitary damage.
The Panel thus focussed on whether there was sufficient scientific evidence
supporting the need for Japan's set of requirements on imports of fresh apple
fruit from the United States. The Panel considered the evidence both with regard
to mature, symptomless apples, which the United States claimed was the product
it exported, and with regard to immature or damaged fruit which might
inadvertently enter Japan. The Panel noted that this was a well-studied plant
disease, and that there was much scientific evidence regarding the disease and
its spread. However, there was not conclusive evidence that fresh apple fruit
could serve as a pathway for the spread of fire blight, nor was there convincing
evidence that the disease has ever been spread through trade in apples. The
Panel therefore found that, Japan was maintaining its measure (the set of
requirements taken as a whole) without sufficient scientific evidence.
The Appellate Body upheld the findings of the Panel that Japan's measure was
maintained without sufficient scientific evidence, in violation of Article 2.2.
In its appeal, Japan argued that the United States had not established a prima
facie case that infected apples would not act as pathway for the spread of fire
blight. However, the Appellate Body noted that the United States allegations of
fact related to mature, symptomless apples, and it was Japan which sought to
counter these allegations by introducing arguments related to failures in
control systems of exporting countries and the possibility of infected apple
fruit to be exported. The Appellate Body indicated that the party which asserts
a fact is responsible for providing proof thereof, a principle distinct from the
requirement that the complainant must establish a prima facie case of
inconsistency with a provision of a WTO agreement. It also rejected Japan's
contention that a panel is obliged to give precedence to the importing Member's
approach to scientific evidence and risk when analyzing and assessing scientific
evidence
A provisional measure under Article 5.7?
Japan argued that if the Panel were to find that its
measure was maintained without sufficient scientific evidence, than its measure
should be considered as a provisional measure as permitted by Article 5.7. This
article permits Members to adopt provisional SPS measures in cases where
relevant scientific evidence is insufficient, provided that the Member bases its
provisional measure on available pertinent information, seeks to obtain the
information necessary for a more objective assessment of risk, and reviews the
measure within a reasonable period of time.
The Panel found that, given the extensive amount of scientific evidence
available regarding fire blight disease and its spread, this was not a situation
in which Article 5.7 could be invoked.
The Appellate Body upheld the findings of the Panel that Article 5.7 did not
apply in this situation, as the body of available scientific evidence would
allow for the performance of an assessment of risk under Article 5.1. It noted
that the application of Article 5.7 was triggered by the insufficiency of
scientific evidence, and not by the existence of scientific uncertainty.
Risk assessment —
Article 5.1
Japan had conducted two
risk assessments on fire blight; one in 1996 on fire blight in general, and
another in 1999 on fire blight in apples imported from the United States. This
latter was considered to be the relevant risk assessment for the purposes of
this dispute. The Panel found, however, that the 1999 pest risk assessment did
not meet the requirements of a risk assessment within the meaning of Article
5.1. In particular, it failed to evaluate the likelihood of the entry,
establishment or spread of fire blight through the importation of apple fruit,
and furthermore did not evaluate the risk according to the phytosanitary
measures which might be applied. Because of this, the Panel concluded that
Japan's measures were not based on a risk assessment appropriate to the
circumstances.
The Appellate Body also upheld the findings of the Panel with regard to the
inconsistency of Japan's risk assessment with the obligations of Article 5.1,
noting that a Member may adopt any appropriate methodology for a risk
assessment, provided that the risk assessment attributes a likelihood of entry,
establishment or spread of the disease to each relevant agent specifically.
Furthermore, the Appellate Body agreed that a risk assessment should not be
limited to an examination of the measure already in place or favoured by the
importing Member. The risk assessment should not be distorted by preconceived
views on the nature and the contents of the measure to be taken, nor should it
develop into an exercise carried out for the purpose of justifying decisions ex
post facto.
Transparency — Article
7 and
Annex
B
According to Annex B, Members have to notify in advance
proposed new SPS regulations or changes in regulations when these are not
substantially the same as a relevant international standard and when they may
have a significant effect on trade. The United States argued that Japan had
modified its fire blight requirements in 1997, but had not notified these
changes. The Panel found that there may have been some modifications to the
requirements in 1997, but concluded that the United States had failed to make a
prima facie case that these modifications might have a significant effect on
trade. This finding of the Panel was not appealed.
Implementation back to top
On 10 February 2004 the parties agreed that the
reasonable period of time for compliance with the rulings and recommendations of
the DSB would expire on 30 June 2004. Japan adopted new measures, arguing that
they thus had fully implemented the DSB's recommendations. The United States was
unconvinced and considered that Japan had failed to bring its phytosanitary
measures on imported US apples into compliance with its obligations under the
SPS Agreement. The United States therefore requested that a panel be established
pursuant to Article 21.5 of the DSU.
At the meeting of the DSB held on 30 July 2004, Japan informed the DSB that it
had amended its measures on 30 June 2004 to implement the DSB's recommendations
and rulings within the reasonable period of time. At the same meeting, the
United States requested the establishment of a panel pursuant to Article 21.5 of
the DSU. The DSB requested the original Panel to consider the question of
Japan's compliance (Article
21.5 of the DSU) and appointed an arbitrator to decide on the appropriate
level of “retaliation” (Article
22.6 of the DSU). Both countries agreed that they would wait until the
Panel had decided on compliance before proceeding with arbitration over the
level of suspension of concessions.
Determination
of compliance back to top
Japan claimed to implement the legislated
phytosanitary requirements through administrative instructions
called “Operational Criteria”. The United States argued that the
Operational Criteria were not “measures” and had not been adopted at
the time the matter was referred to the Panel. The Panel noted that
the Operational Criteria provided for a number of procedures which
were not otherwise specified in other parts of Japan's legislation.
According to the Panel, the Operational Criteria provided a
statement of how Japan intended to implement the recommendations and
rulings of the DSB at the time the Panel had been called upon to
review the “measures taken to comply” by Japan.
Legal reasoning of the Panel
Japan claimed that it had new scientific
evidence of (i) possible infestation/infection of apple fruits through the
pedicel which could lead to latent infection of otherwise mature and
symptomless apples; and (ii) possible completion of the pathway through
transmission of bacteria by flies from infected discarded apples to host
plants in Japan. The Panel examined four new scientific studies provided
by Japan. The Panel considered the extent of the relationship between
the scientific evidence and the risk which this evidence was claimed
to establish and concluded that these new studies did not provide
sufficient scientific evidence to establish, in natural conditions, the
risk of latent infection in mature, symptomless apples or the completion
of the pathway for transmission of fire blight.
The Panel then assessed the existence of a rational relationship
between the scientific evidence and each element of the compliance measure.
The Panel found that each element of the measure at issue, with the
exception of the requirement that US plant protection officials certify
that fruits are free from fire blight, and the related confirmation by
Japanese officials, was not supported by sufficient scientific evidence.
To the extent that the United States claimed to export mature, symptomless
apples constituted a phytosanitary requirement, Japan would be entitled to
verify that this was actually the case.
Since Japan relied in its PRA on the four studies mentioned above and
reviewed by the Panel under Article 2.2, the Panel sought to determine
whether the conclusions of the PRA were actually supported by the
scientific evidence already addressed. The studies relied upon by Japan
did not demonstrate that latent infection in mature, symptomless apples
could occur in real orchard conditions. Furthermore, the studies did not
support the view that apple fruit would be likely to complete the pathway
and contaminate host plants in Japan under non-laboratory conditions.
Since the scientific evidence relied upon by Japan did not support the
conclusions reached by Japan in its PRA, the Panel concluded that the PRA
was not an assessment, as appropriate to the circumstances, of the
risks to plant life or health. Furthermore since the PRA was not an
assessment as appropriate to the circumstances, the Panel concluded that
Japan's compliance measure was not based on a risk assessment.
The Panel examined the United States’ proposed alternative SPS measure (requiring that only mature, symptomless apples) to determine whether it
was reasonably available taking into account technical and economic
feasibility; achieved Japan's appropriate level of sanitary or
phytosanitary protection; and was significantly less restrictive to trade
than the Japan’s contested SPS measure. The Panel concluded that if the
United States only exported mature, symptomless apples, the alternative
measure proposed by the United States would meet the requirements of
Article 5.6 as a substitute to Japan's current measure.
Subsequent situation back to top
The report of the Panel on compliance was
adopted without appeal on 20 July 2005. Japan and the United States
notified that they had reached a mutually agreed solution on 2 September
2005.
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