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I. Preamble back to top
A. Text of the Preamble
Members,
Reaffirming that no Member should be prevented from
adopting or enforcing measures necessary to protect human, animal or
plant life or health, subject to the requirement that these measures are
not applied in a manner which would constitute a means of arbitrary or
unjustifiable discrimination between Members where the same conditions
prevail or a disguised restriction on international trade;
Desiring
to improve the human health, animal health and
phytosanitary situation in all Members;
Noting that sanitary and phytosanitary measures are often applied
on the basis of bilateral agreements or protocols;
Desiring the establishment of a multilateral framework of rules
and disciplines to guide the development, adoption and enforcement of
sanitary and phytosanitary measures in order to minimize their negative
effects on trade;
Recognizing the important contribution that international
standards, guidelines and recommendations can make in this regard;
Desiring
to further the use of harmonized sanitary and
phytosanitary measures between Members, on the basis of international
standards, guidelines and recommendations developed by the relevant
international organizations, including the Codex Alimentarius
Commission, the International Office of Epizootics, and the relevant
international and regional organizations operating within the framework
of the International Plant Protection Convention, without requiring
Members to change their appropriate level of protection of human, animal
or plant life or health;
Recognizing that developing country Members may encounter special
difficulties in complying with the sanitary or phytosanitary measures of
importing Members, and as a consequence in access to markets, and also
in the formulation and application of sanitary or phytosanitary measures
in their own territories, and desiring to assist them in their
endeavours in this regard;
Desiring
therefore to elaborate rules for the application of the
provisions of GATT 1994 which relate to the use of sanitary or
phytosanitary measures, in particular the provisions of Article XX(b)(1);
(footnote original)
1 In this Agreement, reference to Article XX(b)
includes also the chapeau of that Article.
Hereby agree as follows:
B. Interpretation and Application of the Preamble
1. First recital: consistency of Members’ SPS measures with
obligations within the SPS Agreement
1. In US/Canada — Continued Suspension, the Appellate Body
referring to the first recital of the preamble of the SPS Agreement,
recalled the right of WTO Members to take measures to protect human,
animal or plant life or health provided that the measures exercised are
consistent with the series of obligations that are set forth in the
Agreement, “which seek to ensure that the measures are properly
justified(1)”.(2)
2. Fifth and sixth recitals: “international standards, guidelines
and recommendations”
(a) General
2. The Codex Alimentarius Commission, the World Organization for
Animal Health (previously the International Office of Epizootics), and
the Secretariat of the International Plant Protection Convention
regularly provide the SPS Committee with information regarding
international standards they have adopted.(3)
(b) Relevance of international standards in the SPS Agreement
(i) General
3. In US/Canada — Continued Suspension, the Appellate Body
took note of the SPS Agreement preamble mentioning harmonization of
international standards, as one purpose of the agreement. The Appellate
Body stated that international standards are given a prominent role
under the SPS Agreement particularly in furthering the objective of
promoting the harmonization of sanitary and phytosanitary standards
between WTO Members. This is to be achieved by encouraging WTO Members
to base their SPS measures on international standards, guidelines or
recommendations where they exist.(4)
4. The Appellate Body also recognized this role of the SPS Agreement
in EC — Hormones.
“As the preamble of the SPS Agreement recognizes, one of the
primary objectives of the SPS Agreement is to ‘further the use
of harmonized sanitary and phytosanitary measures between Members, on
the basis of international standards, guidelines and recommendations
developed by the relevant international organizations’.”(5)
3. The relationship between the SPS Agreement and Article XX(b) of
GATT 1994
5. In EC — Hormones (Canada), the Panel discussed the
relationship between the SPS Agreement and Article XX(b) of the GATT
1994. The Panel acknowledged that some provisions of the SPS Agreement,
such as the eighth recital of the preamble, elaborate on provisions
already contained in the SPS Agreement. However, the Panel noted that
this was not conclusive evidence that the SPS Agreement only applies, as
Article XX(b) of the GATT 1994 does, if a prior violation of a GATT
provision has been established. The Panel found that many provisions of
the SPS Agreement, such as those contained in the second and sixth
recitals of the preamble, go beyond and are additional to the
requirements for the invocation of Article XX(b). The Panel concluded
that, while Article XX(b) provides for a general exception which can be
invoked to justify a violation of another GATT provision, the SPS
Agreement, in contrast, provides for specific obligations to be met for
a Member to enact or maintain SPS measures:
“[W]e find the EC claim that the SPS Agreement does not impose ‘substantive’
obligations additional to those already contained in Article XX(b) of
GATT not to be persuasive. It is clear that some provisions of the SPS
Agreement elaborate on provisions already contained in GATT, in
particular Article XX(b). The
final preambular paragraph of the SPS
Agreement provides, indeed, that the Members desired ‘to elaborate
rules for the application of the provisions of GATT 1994 which relate to
the use of sanitary or phytosanitary measures, in particular the
provisions of Article XX(b)’. Examples of such rules are, arguably,
some of the obligations contained in Article 2 of the SPS
Agreement.
However, on this basis alone we cannot conclude that the SPS Agreement
only applies, as Article XX(b) of GATT does, if, and only if, a prior
violation of a GATT provision has been established. Many provisions of
the SPS Agreement impose ‘substantive’ obligations which go
significantly beyond and are additional to the requirements for
invocation of Article XX(b).(6) These obligations are, inter alia,
imposed to ‘further the use of harmonized sanitary and phytosanitary
measures between Members’(7) and to ‘improve the human health, animal
health and phytosanitary situation in all Members’.(8) They are not
imposed, as is the case of the obligations imposed by Article XX(b) of
GATT, to justify a violation of another GATT obligation (such as a
violation of the non-discrimination obligations of Articles I or
III).
We note in this respect that the general approach adopted in
Article
XX(b) of GATT is fundamentally different from the approach adopted in
the SPS Agreement. Article XX(b), which is not limited to sanitary or
phytosanitary measures, provides for a general exception which
can be invoked to justify any violation of another GATT provision. The
SPS Agreement, on the other hand, provides for specific obligations to
be met in order for a Member to enact or maintain specific types of
measures, namely sanitary and phytosanitary measures.”(9)
4. The precautionary principle
(a) Status in international law
6. With respect to the “precautionary principle” invoked by the
European Communities in support of its claim in EC — Hormones that
it had complied with Article 5.1 of the SPS
Agreement, the Appellate
Body declined to take a position on the status of the precautionary
principle in international law:
“The status of the precautionary principle in international law
continues to be the subject of debate among academics, law
practitioners, regulators and judges. The precautionary principle is
regarded by some as having crystallized into a general principle of
customary international environmental law. Whether it has been
widely accepted by Members as a principle of general or customary
international law appears less than clear. We consider, however,
that it is unnecessary, and probably imprudent, for the Appellate Body
in this appeal to take a position on this important, but abstract,
question. We note that the Panel itself did not make any definitive
finding with regard to the status of the precautionary principle in
international law and that the precautionary principle, at least outside
the field of international environmental law, still awaits authoritative
formulation.”(10)
7. The Panel in EC — Approval and Marketing of Biotech Products reviewed
the jurisprudence and doctrine related to the precautionary principle,
noting many uncertainties in the status of the principle. The Panel
finally declined to uphold the European Communities’ contention that
the precautionary principle has “by now become a fully-fledged and
general principle of international law”, and opted to refrain from
expressing any view on the issue.(11)
(b) Relationship of the precautionary principle with the SPS
Agreement
8. As regards the relationship of the “precautionary principle”
with the SPS Agreement, the Appellate Body noted the following four
elements, one of which concerning the Preamble to the SPS
Agreement:
“First, the principle has not been written into the SPS
Agreement as a ground for justifying SPS measures that are otherwise
inconsistent with the obligations of Members set out in particular
provisions of that Agreement … It is reflected also in the sixth
paragraph of the preamble … These explicitly recognize the right of
Members to establish their own appropriate level of sanitary protection,
which level may be higher (i.e., more cautious) than that implied in
existing international standards, guidelines and recommendations …
Lastly, however, the precautionary principle does not, by itself, and
without a clear textual directive to that effect, relieve a Panel from
the duty of applying the normal (i.e. customary international law)
principles of treaty interpretation in reading the provisions of the SPS
Agreement”.”(12)
II. Article 1
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A. Text of Article 1
Article 1: General Provisions
1.
This Agreement applies to all sanitary and phytosanitary measures
which may, directly or indirectly, affect international trade. Such
measures shall be developed and applied in accordance with the
provisions of this Agreement.
2. For the purposes of this Agreement, the definitions provided in
Annex A shall apply.
3. The annexes are an integral part of this Agreement.
4. Nothing in this Agreement shall affect the rights of Members under
the Agreement on Technical Barriers to Trade with respect to measures
not within the scope of this Agreement.
B. Interpretation and Application of Article 1
1. Article 1.1
(a) Scope of the SPS Agreement
(i) Application ratione materiae of the SPS Agreement
9. The Panel in EC — Hormones identified two requirements
that must be met for a measure to fall within the realm of the SPS
Agreement:
“According to Article 1.1 of the SPS Agreement, two
requirements need to be fulfilled for the SPS Agreement to apply:
(i) the measure in dispute is a sanitary or phytosanitary measure; and
(ii) the measure in dispute may, directly or indirectly, affect
international trade.”(13)
Sanitary or phytosanitary measures
10. In EC — Hormones (Canada), the Panel reviewed the test
applied by the parties to establish whether the measures at issue were
sanitary measures. In accordance with the parties analysis, the Panel
based its review on the definitions provided in Annex A of the SPS
Agreement:
“With respect to the SPS Agreement, both parties agree that
the EC measures in dispute are sanitary measures in the sense of
Paragraph 1(b) of Annex A of the SPS Agreement. Paragraph 1(b) of Annex
A defines a sanitary measure as
‘any measure applied to protect human or animal life or health
within the territory of the Member from risks arising from additives,
contaminants, toxins or disease-causing organisms in foods, beverages or
feedstuffs’.
Footnote 4 to Annex A specifies that ‘contaminants’ include, for
the purposes of Annex A, ‘pesticide and veterinary drug residues and
extraneous matter’. Since the six hormones in dispute are veterinary
drugs, the parties agree that the alleged risks at issue arise from
contaminants. We agree with the parties that the EC measures in dispute
are ‘applied to protect human … life or health’ within the
territory of the European Communities from risks arising from ‘contaminants’,
namely residues of six specific hormones, in foods (according to
paragraph 1(b) of Annex A). That the contested EC measures are, inter
alia, ‘applied to protect human … life or health’ can be
inferred from the preambles to, and legislative history of, Directives
81/602/EEC and 88/146/EEC. Since both parties agree that the contested
EC measures are ‘sanitary measures’, we see no need to further
examine in this dispute the definition of measures ‘applied to protect
human … life or health’.”(14)
Measures which may directly or indirectly affect international trade
11. In EC — Hormones (Canada), the Panel agreed with the
parties’ argument that the measures at issue could be considered as
SPS measures if they satisfy the other requirement of Article 1.1 namely
if they directly or indirectly impact international trade:
“Both parties … agree that, according to Article 1.1 of the SPS
Agreement, the SPS Agreement is applicable to this dispute. Article 1.1
provides that the SPS Agreement
‘applies to all sanitary and phytosanitary measures which may,
directly or indirectly, affect international trade’.
We agree with the parties that the EC measures ‘may, directly or
indirectly, affect international trade’. It cannot be contested that
an import ban affects international trade.”(15)
12. In EC — Approval and Marketing of Biotech Products, the
Panel noted that this second requirement under Article 1 could be
lessened given the wording used in the Article:
“Article 1.1 of the SPS Agreement provides, inter alia,
that the SPS Agreement ‘applies to all [SPS] measures which
may, directly or indirectly, affect international trade’. Thus, for an
SPS measure to be subject to the disciplines of the SPS Agreement,
it must be capable of affecting international trade. …
In our view, it is not necessary to demonstrate that an SPS measure
has an actual effect on trade. Article 1.1 merely requires that an SPS
measure ‘may, directly or indirectly, affect international trade’.”(16)
13. The Panel in US — Poultry (China) however emphasized the
importance of this second requirement, noting that: “Even if a measure
falls within the definition of an SPS measure in Annex A(1) of the SPS
Agreement, further to Article 1.1 of the SPS Agreement, such
measure still needs to be a measure that directly or indirectly affect[s]
international trade to be covered by the disciplines of the SPS
Agreement.”(17)
(ii) Temporal scope of the SPS Agreement
14. In EC — Hormones, in discussing the applicability of the
SPS Agreement to a measure which was enacted before the entry into force
of the Agreement, the Appellate Body held that the SPS Agreement would
apply to situations or measures that had not ceased to exist, unless the
SPS Agreement revealed a contrary intention. Furthermore, the Appellate
Body noted that certain measures of the SPS Agreement “expressly
contemplate applicability to SPS measures that already existed on 1
January 1995”:
“We addressed the issue of temporal application in our Report in Brazil
— Measures Affecting Desiccated Coconut and concluded on the basis
of Article 28 of the Vienna Convention that:
Absent a contrary intention, a treaty cannot apply to acts or facts
which took place, or situations which ceased to exist, before the date
of its entry into force.
We agree with the Panel that the SPS Agreement would apply to
situations or measures that did not cease to exist, such as the 1981 and
1988 Directives, unless the SPS Agreement reveals a contrary
intention. We also agree with the Panel that the SPS Agreement does
not reveal such an intention. The SPS Agreement does not contain
any provision limiting the temporal application of the SPS Agreement,
or of any provision thereof, to SPS measures adopted after 1 January
1995. In the absence of such a provision, it cannot be assumed that
central provisions of the SPS Agreement, such as Articles 5.1 and
5.5, do not apply to measures which were enacted before 1995 but which
continue to be in force thereafter. If the negotiators had wanted to
exempt the very large group of SPS measures in existence on 1 January
1995 from the disciplines of provisions as important as Articles 5.1 and
5.5, it appears reasonable to us to expect that they would have said so
explicitly. Articles 5.1 and 5.5
do not distinguish between SPS measures
adopted before 1 January 1995 and measures adopted since; the relevant
implication is that they are intended to be applicable to both.
Furthermore, other provisions of the SPS Agreement, such as
Articles 2.2, 2.3, 3.3 and
5.6, expressly contemplate applicability to
SPS measures that already existed on 1 January 1995.”(18)
(iii) “Shall be developed and applied in accordance with the
provisions of this Agreement”: relevance of the purpose of the
measure at issue
15. The Panel in EC — Approval and Marketing of Biotech Products
stressed the relevance of the purpose of the measure at issue in the
establishment of its consistency with the SPS Agreement:
“Having determined that the purpose of Directives 90/220 and
2001/18 is to protect human health and the environment from adverse
effects on human health and the environment which might result from the
deliberate release of GMOs into the environment, we now proceed to
examine whether that purpose is covered by the various sub-paragraphs of
Annex A(1) to the SPS Agreement.
…
We note that in accordance with Annex A(1)(a) and
(b) of the SPS
Agreement, the SPS Agreement covers measures applied to
protect animal and plant life or health from certain risks. Thus, to the
extent Directives 90/220 and 2001/18 are applied to protect animals and
plants as part of their purpose of protecting the environment, they are
not a priori excluded from the scope of application of the SPS
Agreement.
…
It is clear from the definition contained in Annex A(1) that one of
the elements which determine whether a particular measure is an SPS
measure is the purpose of the measure. A measure is an SPS measure if it
is applied “to protect” life or health from certain enumerated
risks, or if it is applied ‘to prevent or limit’ certain other
damage.”(19)
(iv) Private Standards
16. The SPS Committee has been discussing the issue of SPS-related
private standards since June 2005. The SPS Committee decided in October
2008 to request an ad hoc working group to undertake a three-step study,
and present a report proposing concrete actions for consideration by the
Committee at the end of this process.(20)
17. The ad hoc working group on SPS-related private standards
completed its work on identifying “Possible Actions for the SPS
Committee Regarding SPS-Related Private Standards”, and presented its
report to the SPS Committee. The report of the working group is
contained in document G/SPS/W/256.
18. At its meeting of 30–31 March 2011, the Committee adopted five
of the six actions put forward by the working group for endorsement.(21)
The five actions are listed below:
Action 1: The SPS Committee should develop a working definition
of SPS-related private standards and limit any discussions to these.
Action 2: The SPS Committee should regularly inform the Codex,
OIE and IPPC regarding relevant developments in its consideration of SPS-related
private standards, and should invite these organizations to likewise
regularly inform the SPS Committee of relevant developments in their
respective bodies.
Action 3: The SPS Committee invites the Secretariat to inform the
Committee on developments in other WTO fora which could be of relevance
for its discussions on SPS-related private standards.
Action 4: Members are encouraged to communicate with entities
involved in SPS-related private standards in their territories to
sensitize them to the issues raised in the SPS Committee and underline
the importance of international standards established by the Codex, OIE
and IPPC.
Action 5: The SPS Committee should explore the possibility of
working with the Codex, OIE and IPPC to support the development and/or
dissemination of informative materials underlining the importance of
international SPS standards.(22)
19. As regards the interpretation of
Annex A, see the Section of this
Chapter on Annex A.
III. Article 2
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A. Text of Article 2
Article 2: Basic Rights and Obligations
1. Members have the right to take sanitary and phytosanitary measures
necessary for the protection of human, animal or plant life or health,
provided that such measures are not inconsistent with the provisions of
this Agreement.
2. Members shall ensure that any sanitary or phytosanitary measure is
applied only to the extent necessary to protect human, animal or plant
life or health, is based on scientific principles and is not maintained
without sufficient scientific evidence, except as provided for in
paragraph 7 of Article 5.
3. Members shall ensure that their sanitary and phytosanitary
measures do not arbitrarily or unjustifiably discriminate between
Members where identical or similar conditions prevail, including between
their own territory and that of other Members. Sanitary and
phytosanitary measures shall not be applied in a manner which would
constitute a disguised restriction on international trade.
4.
Sanitary or phytosanitary measures which conform to the relevant
provisions of this Agreement shall be presumed to be in accordance with
the obligations of the Members under the provisions of GATT 1994 which
relate to the use of sanitary or phytosanitary measures, in particular
the provisions of Article XX(b).
B. Interpretation and Application of Article 2
1. Scope of Article 2 obligations
20. According to the Panel in US — Poultry (China), the “overarching
and encompassing” title of Article 2 being “Basic Rights and
Obligations”, leads to the conclusion that the obligations in Article 2
inform all of the SPS Agreement.(23)
2. Article 2.2
(a) The elements of Article 2.2
21. In EC — Approval and Marketing of Biotech Products, the
Panel listed the requirements within Article 2.2 of the SPS
Agreement:
“It is apparent from the text of Article 2.2 that this provision
contains three separate requirements: (i) the requirement that SPS
measures be applied only to the extent necessary to protect human,
animal or plant life or health; (ii) the requirement that SPS measures
be based on scientific principles; and (iii) the requirement that SPS
measures not be maintained without sufficient scientific evidence.”(24)
(b) The requirement that SPS measures not be maintained without
sufficient scientific evidence
(i) General
22. The Panel in US — Poultry (China) was of the view that
to maintain a measure with sufficient scientific evidence, the
scientific evidence must bear a rational relationship to the measure, be
sufficient to demonstrate the extent of the risk which the measure is
supposed to address, and be of the kind necessary for a risk assessment.(25)
23. In EC — Hormones, as part of its determination of the
link between the precautionary principle and the SPS Agreement, the
Appellate Body noted that a Member’s precautionary approach is one
element that a panel should bear in mind when appraising the scientific
basis underlying their SPS measures:
“[A] Panel charged with determining, for instance, whether ‘sufficient
scientific evidence’ exists to warrant the maintenance by a Member of
a particular SPS measure may, of course, and should, bear in mind that
responsible, representative governments commonly act from perspectives
of prudence and precaution where risks of irreversible, e.g. life
terminating, damage to human health are concerned.”(26)
(ii) Rationale for the requirement of sufficient evidence
24. In EC — Hormones, the Appellate Body considered the
purpose of the requirement of “sufficient scientific evidence”,
which with other provisions of the SPS Agreement enables the balance
between promotion of international trade and protection of human life
and health within the Agreement:
“The requirements of a risk assessment under Article
5.1, as well
as of “sufficient scientific evidence” under Article
2.2, 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.”(27):
(iii) “Sufficient”
Meaning
25. In Japan — Agricultural Products II, with respect to the
term “sufficient” in Article 2.2, the Appellate Body required an
adequate relationship between the SPS measure and the scientific
evidence:
“The ordinary meaning of ‘sufficient’ is ‘of a quantity,
extent, or scope adequate to a certain purpose or object’. From this,
we can conclude that ‘sufficiency’ is a relational concept. ‘Sufficiency’
requires the existence of a sufficient or adequate relationship between
two elements, in casu, between the SPS measure and the scientific
evidence”.(28)
26. In Japan — Apples (Article 21.5 — US), the Panel found
(para. 8.45) that for scientific evidence to support a measure
sufficiently it must also demonstrate the existence of the risk which
the measure is supposed to address:
“[I]n order for scientific evidence to support a measure
sufficiently, it seems logical to us that such scientific evidence must
also be sufficient to demonstrate the existence of the risk which the
measure is supposed to address. As a result, it seems reasonable to
consider the extent of the relationship between the scientific evidence
and the risk which this evidence is claimed to establish.”
Context
27. The Appellate Body in Japan — Agricultural Products II stated
that “[t]he context of the word ‘sufficient’ or, more generally,
the phrase ‘maintained without sufficient scientific evidence’ in
Article 2.2, includes Article 5.1 as well as
Articles 3.3 and 5.7 of the
SPS Agreement”.(29)
Insufficiency threshold
28. After an examination of the context of the term “sufficient”,
the Appellate Body in Japan — Agricultural Products II disagreed
with Japan on the notion of a standard of “patent insufficiency”:
“We do not agree with Japan’s proposition that direct application
of Article 2.2 of the SPS Agreement should be limited to
situations in which the scientific evidence is ‘patently’
insufficient, and that the issue raised in this dispute should have been
dealt with under Article 5.1 of the SPS Agreement. There is
nothing in the text of either Articles 2.2 or
5.1, or any other
provision of the SPS Agreement, that requires or sanctions such
limitation of the scope of Article 2.2.”(30)
(iv) “Scientific evidence”
29. The Panel in Japan — Apples looked into the meaning of
“scientific evidence” and discussed the significance of the nature
of the evidence that ought to be considered when a Member is making a
determination of what measure to put in place.
“We consider that … we must give full meaning to the term ‘scientific’
and conclude that, in the context of Article 2.2, the evidence to be
considered should be evidence gathered through scientific methods,
excluding by the same token information not acquired through a
scientific method. We further note that scientific evidence may include
evidence that a particular risk may occur … as well as evidence that a
particular requirement may reduce or eliminate that risk ….
Likewise, the use of the term ‘evidence’ must also be given full
significance. Negotiators could have used the term ‘information’, as
in Article 5.7, if they considered that any material could be used. By
using the term ‘scientific evidence’, Article
2.2 excludes in
essence not only insufficiently substantiated information, but also such
things as a non-demonstrated hypothesis.
…
[R]equiring ‘scientific evidence’ does not limit the field of
scientific evidence available to Members to support their measures. ‘Direct’
or ‘indirect’ evidence may be equally considered. The only
difference is not one of scientific quality, but one of probative value
within the legal meaning of the term, since it is obvious that evidence
which does not directly prove a fact might not have as much weight as
evidence directly proving it, if it is available.”(31)
(v) A rational and objective relationship between the SPS measure and
the scientific evidence
30. The Appellate Body in Japan — Agricultural Products II established
that Article 2.2 requires a rational or objective relationship between
the SPS measure and the scientific evidence, a relationship that is to
be determined on a case-by-case basis:
“[W]e agree with the Panel that the obligation in Article 2.2
that
an SPS measure not be maintained without sufficient scientific evidence
requires that there be a rational or objective relationship between the
SPS measure and the scientific evidence. Whether there is a rational
relationship between an SPS measure and the scientific evidence is to be
determined on a case-by-case basis and will depend upon the particular
circumstances of the case, including the characteristics of the measure
at issue and the quality and quantity of the scientific evidence.”(32)
31. In a finding upheld by the Appellate Body, the Panel, in Japan
— Apples, considered that all the individual requirements
contained in the measure should be treated cumulatively as the
phytosanitary measure at issue in the case. On this basis, the Panel
held that a measure as a whole should be considered to be maintained ‘without
sufficient scientific evidence’ if one or more of its elements are not
justified by the relevant scientific evidence addressing the risk at
issue.(33)
(c) Burden of proof on sufficiency of the evidence
(i) General rule on allocation of burden of proof
32. In Japan — Agricultural Products II, the Appellate Body
emphasized that in proceedings under the SPS Agreement, the general
rules on burden of proof which were outlined in EC — Hormones need
to be followed:
“With regard to the rules on burden of proof in proceedings under
the SPS Agreement, we noted in our Report in European
Communities — Hormones, that the Panel in that case appropriately
described the issue of the burden of proof as one of particular
importance, in view of the multiple and complex issues of fact which may
arise in disputes under that Agreement.(34) Furthermore, as we noted in European
Communities — Hormones, the rules on burden of proof are rules ‘applicable
in any adversarial proceedings’.(35) We, therefore, agreed with the
Panel in that case that in proceedings under the SPS Agreement:
The initial burden lies on the complaining party, which must
establish a prima facie case of inconsistency with a particular
provision of the SPS Agreement on the part of the defending
party, or more precisely, of its SPS measure or measures complained
about. When that prima facie case is made, the burden of proof
moves to the defending party, which must in turn counter or refute the
claimed inconsistency.”(36)
33. On the allocation of burden of proof, the Appellate Body in Japan
— Apples said that although the complaining party bears the burden
of proving its case, the responding party is responsible for proving the
case it seeks to make in response:
“In this case, the United States seeks a finding that Japan’s
measure is inconsistent with Article 2.2 of the SPS Agreement.
Therefore, the initial burden lies with the United States to establish a
prima facie case that the measure is inconsistent with Article
2.2… . Following the Appellate Body’s ruling in EC — Hormones,
if this prima facie case is made, it would be for Japan to
counter or refute the claim that the measure is ‘maintained without
sufficient scientific evidence’.
That said, the Appellate Body’s statement in EC — Hormones does
not imply that the complaining party is responsible for providing proof
of all facts raised in relation to the issue of determining whether a
measure is consistent with a given provision of a covered agreement. In
other words, although the complaining party bears the burden of proving
its case, the responding party must prove the case it seeks to make in
response. In US — Wool Shirts and Blouses, the Appellate Body
stated
‘… the party who asserts a fact, whether the claimant or the
respondent, is responsible for providing proof thereof.’(37)”(38)
(ii) Presumption of “no relevant studies or report”
34. The Panel in Japan — Agricultural Products II had
limited its finding of violation of Article 2.2 to only four of the
eight products at issue on the grounds that in respect of the other four
products, the United States had not adduced sufficient evidence to raise
a prima facie case.(39) The Appellate Body agreed with the Panel and found
that it would be sufficient for the complainant to raise a presumption
that no relevant scientific studies or reports exist:
“[W]e disagree with the United States that the Panel imposed on the
United States an impossible and, therefore, erroneous burden of proof by
requiring it to prove a negative, namely, that there are no relevant
studies and reports which support Japan’s varietal testing
requirement. In our view, it would have been sufficient for the United
States to raise a presumption that there are no relevant studies or
reports. Raising a presumption that there are no relevant studies or
reports is not an impossible burden. The United States could have
requested Japan, pursuant to Article 5.8 of the SPS Agreement, to
provide ‘an explanation of the reasons’ for its varietal testing
requirement, in particular, as it applies to apricots, pears, plums and
quince. Japan would, in that case, be obliged to provide such
explanation. The failure of Japan to bring forward scientific studies or
reports in support of its varietal testing requirement as it applies to
apricots, pears, plums and quince, would have been a strong indication
that there are no such studies or reports. The United States could also
have asked the Panel’s experts specific questions as to the existence
of relevant scientific studies or reports or it could have submitted to
the Panel the opinion of experts consulted by it on this issue. The
United States, however, did not submit any evidence relating to
apricots, pears, plums and quince.”(40)
(iii) Burden of proof determined by scope of claim
35. Regarding the concept of prima facie, the Appellate Body in Japan
— Apples agreed with the Panel that the complainant could
establish a prima facie case of inconsistency with Article 2.2 of the
SPS Agreement even though it had confined its arguments to the perceived
risks underlying the measures within the scope of its claim(41):
“Japan … submits that, ‘in order to establish a prima facie case
of insufficient scientific evidence under Article 2.2 of the SPS
Agreement, the complaining party must establish that there is not
sufficient evidence for any of the perceived risks underlying the
measure.’ … We find no basis for the approach advocated by Japan. …
In the present case, the Panel appears to have concluded that in order
to demonstrate a prima facie case that Japan’s measure is
maintained without sufficient scientific evidence, it sufficed for the
United States to address only the question of whether mature,
symptomless apples could serve as a pathway for fire blight.
The Panel’s conclusion seems appropriate to us for the following
reasons. First, the claim pursued by the United States was that Japan’s
measure is maintained without sufficient scientific evidence to the
extent that it applies to mature, symptomless apples exported from the
United States to Japan. What is required to demonstrate a prima facie
case is necessarily influenced by the nature and the scope of the
claim pursued by the complainant. A complainant should not be required
to prove a claim it does not seek to make. Secondly, the Panel found
that mature, symptomless apple fruit is the commodity ‘normally
exported’ by the United States to Japan. The Panel indicated that the
risk that apples fruit other than mature, symptomless apples may
actually be imported into Japan would seem to arise primarily as a
result of human or technical error, or illegal actions, and noted that
the experts characterized errors of handling and illegal actions as ‘small’
or ‘debatable’ risks. Given the characterization of these risks, in
our opinion it was legitimate for the Panel to consider that the United
States could demonstrate a prima facie case of inconsistency with
Article 2.2 of the SPS Agreement through argument based solely on
mature, symptomless apples. Thirdly, the record contains no evidence to
suggest that apples other than mature, symptomless ones have ever been
exported to Japan from the United States as a result of errors of
handling or illegal actions… .”(42)
(iv) Burden of proof for both Articles 2.2 and 5.7
36. In EC — Approval and Marketing of Biotech Products, the
Panel in accordance with the Panel’s findings in Japan —
Agricultural Products II(43), made it clear that the burden of proof
under Article 2.2 needs to be allocated in consideration of provisions
under Article 5.7 of the SPS Agreement given its conclusion that
Article
5.7 is a qualified right and not an exception to Article
2.2:
“According to the Appellate Body’s statement in EC — Tariff
Preferences, in cases where the permissive provision constitutes a
right rather than an exception, ‘the complaining party bears the
burden of establishing that a challenged measure is inconsistent with
the provision permitting particular behaviour’.(44) And in EC —
Sardines, the Appellate Body observed that ‘[i]n EC —
Hormones, we found that a ‘general rule–exception’
relationship between Articles 3.1 and 3.3 of the SPS Agreement does
not exist, with the consequence that the complainant had to establish a
case of inconsistency with both Articles 3.1 and
3.3’.(45) We
deduce from these two statements that in cases where a complaining party
alleges that an SPS measure is inconsistent with the obligation in
Article 2.2 not to maintain SPS measures without sufficient scientific
evidence, it is incumbent on the complaining party, and not the
responding party, to demonstrate that the challenged SPS measure is
inconsistent with at least one of the four requirements set forth in
Article 5.7. If such non-compliance is demonstrated, then, and only
then, does the relevant obligation in Article 2.2 apply to the
challenged SPS measure.”(46)
(d) Standard of review of a panel with respect to sufficiency of
scientific evidence
(i) Panel to take into account the prudence commonly exercised by
governments
37. In EC — Hormones, the Appellate Body, while addressing
the relationship between the precautionary principle and the SPS
Agreement in the context of its analysis of whether a measure was
maintained without sufficient scientific evidence, noted that a panel
should take into account in its examination the prudence commonly
exercised by governments in the event of irreversible risks:
“[A] Panel charged with determining, for instance, whether ‘sufficient
scientific evidence’ exists to warrant the maintenance by a Member of
a particular SPS measure may, of course, and should, bear in mind that
responsible, representative governments commonly act from perspectives
of prudence and precaution where risks of irreversible, e.g.
life-terminating, damage to human health are concerned.”(47)
(ii) Panel not to conduct own risk assessment
38. The Panel in Japan — Agricultural Products II emphasized
that in reviewing whether the measure at issue was being maintained
without sufficient scientific evidence, it would not conduct its own
risk assessment:
“To determine whether or not the varietal testing requirement is
maintained without sufficient scientific evidence … we need to refer
to the opinions we received from the experts advising the Panel. We
recall that these expert opinions are opinions on the evidence submitted
by the parties. We are not empowered, nor are the experts advising the
Panel, to conduct our own risk assessment.”(48)
(iii) Panel to assess relevant allegations of fact
39. The Appellate Body in Japan — Apples also found that the
Panel acted within the limits of its investigative authority when the
Panel assessed relevant allegations of fact asserted by Japan as the
respondent:
“Japan also contends that the Panel did not have the authority to
make certain findings of fact and, in support of this contention, refers
to the Appellate Body’s statement in Japan — Agricultural
Products II:
‘Article 13 of the DSU and
Article 11.2 of the SPS Agreement suggest
that Panels have a significant investigative authority. However, this
authority cannot be used by a Panel to rule in favour of a complaining
party which has not established a prima facie case of
inconsistency based on specific legal claims asserted by it.’(49)
We disagree with Japan. We note first that we are not persuaded that
the findings of the Panel, identified by Japan in relation to this
argument, relate specifically to, or address apples other than mature,
symptomless apples, as Japan seems to assume. Also, the Appellate Body’s
finding in Japan — Agricultural Products II does not support
Japan’s argument that the Panel was barred from making findings of
fact in connection with apples other than mature, symptomless apples.
Those findings were relevant to the claim pursued by the United States
under Article 2.2 of the SPS Agreement, and were responsive to
relevant allegations of fact advanced by Japan in the context of its
rebuttal of the United States’ claim. The Panel acted within the
limits of its investigative authority because it did nothing more than
assess relevant allegations of fact asserted by Japan, in the light of
the evidence submitted by the parties and the opinions of the experts.”(50)
(iv) Panel to take into account views of experts while evaluating
scientific evidence
40. The Appellate Body in Japan — Apples held that the Panel
was entitled to take into account the views of the experts in assessing
whether the United States had established a prima facie case, recalling
the similar approaches taken in other cases involving the evaluation of
scientific evidence:
“In order to assess whether the United States had established a prima
facie case, the Panel was entitled to take into account the view of
the experts. Indeed, in India — Quantitative Restrictions, the
Appellate Body indicated that it may be useful for a Panel to consider
the views of the experts it consults in order to determine whether a prima
facie case has been made.(51) Moreover, on several occasions,
including disputes involving the evaluation of scientific evidence, the
Appellate Body has stated that Panels enjoy discretion as the trier of
facts(52); they enjoy ‘a margin of discretion in assessing the value of
the evidence, and the weight to be ascribed to that evidence.’(53)
Requiring Panels, in their assessment of the evidence before them, to
give precedence to the importing Member’s evaluation of scientific
evidence and risk is not compatible with this well-established
principle.”(54)
(v) Panel not obliged to give precedence to importing Member’s
approach to scientific evidence and risk
41. The Appellate Body in Japan — Apples held that a panel
is not obliged to give precedence to the importing Member’s
approach to scientific evidence and riskover the views of the experts
when analyzing and assessing scientific evidence to determine whether a
complainant established a prima facie case under Article
2.2. The
obligation is to carry out an objective assessment of facts.(55)
(e) Relationship with other Articles
(i) Article 1.1
42. As regards applicability of the SPS Agreement to measures adopted
before 1 January 1995 and measures adopted since, see paragraph 14
above.
(ii) Article 4
43. The Panel in Japan — Apples rejected Japan’s argument
that the Panel should consider Article 4 of the SPS Agreement in its
assessment of Article 2.2:
“[W]e agree that other provisions of the SPS Agreement are
part of the context of Article 2.2, as recalled by the Appellate Body in
Japan — Agricultural Products II(56).
Article 4 deals with the
specific question of the recognition of equivalence of measures. Unlike
Articles 3.3, 5.1 and 5.7, the purpose of
Article 4 is clearly different
from that of Article 2.2. We also note that the United States did not
raise any claim under Article 4 and that this Article is not a defence
against violations of other provisions of the SPS Agreement. As a
result, we see no other reason to consider Japan’s arguments regarding
Article 4 in our assessment of Article
2.2, other than to the extent
that Article 4 might form part of the relevant context in the
interpretation of Article 2.2.”(57)
(iii) Article 5
Article 5.1
44. In EC — Hormones, the Appellate Body stated that
Articles 2.2 and 5.1 should “constantly be read together”
“[T]he Panel considered that Article 5.1 may be viewed as a
specific application of the basic obligations contained in Article 2.2
of the SPS Agreement …
We agree with this general consideration and would also stress that
Articles 2.2 and 5.1
should constantly be read together. Article 2.2
informs Article 5.1: the elements that define the basic obligation set
out in Article 2.2 impart meaning to Article
5.1.”(58)
45. In Australia — Salmon, the Appellate Body agreed with
the Panel(59) that in the event an SPS measure is not based on a risk
assessment, as required in Article
5.1, this measure can be presumed,
more generally, not to be based on scientific principles or not to be
maintained without sufficient scientific evidence within the meaning of Article 2.2. On that basis, the Appellate Body concluded that a
violation of Article 5.1 also implied an inconsistency with
Article 2.2.(60)
46. In EC — Approval and Marketing of Biotech Products, the
Panel discussed the relationship between Article 2.2
and Article 5.1 of
the SPS Agreement, noting that the complainants’ claim under Article 2.2
in that case was in the nature of a consequential claim:
“The Panel notes that the Complaining Parties’ claim under
Article 2.2 is in the nature of a consequential claim. The Complaining
Parties submit that an inconsistency with Article 2.2
follows by
implication from a demonstrated inconsistency with Article
5.1. However,
we have determined above that Article 5.1 is not applicable to the
product-specific measures as defined by the Complaining Parties and
that, consequently, the European Communities has not acted
inconsistently with its obligations under Article 5.1 in respect of the
relevant product-specific measures. Since the European Communities has
not acted inconsistently with Article
5.1, and since the Complaining
Parties’ claim under Article 2.2 is premised on the existence of a
breach of Article 5.1 by the European Communities, the Complaining
Parties’ claim under Article 2.2 in our view cannot succeed.”(61)
47. For the order of analysis, refer to
paragraph 189 below.
Articles 5.1 and 5.2
48. In Australia — Apples, the Panel recognized that in past
disputes, panels and the Appellate Body have emphasized the relationship
between
Articles 2.2, 5.1 and 5.2. However, the Panel was quick to point
out that the close link between the three provisions does not mean that
they are identical provisions, as this would render at least one of the
provisions redundant:
“The close link between
Articles 2.2, 5.1 and 5.2 of the SPS
Agreement does not mean that these are identical provisions. Otherwise
at least one of the provisions would be redundant. The Panel is aware in
this respect that, as noted by the Appellate Body in US — Gasoline,
under the general rule of interpretation contained in the Vienna
Convention on the Law of Treaties, ‘interpretation must give meaning
and effect to all the terms of a treaty’ and ‘[a]n interpreter is
not free to adopt a reading that would result in reducing whole clauses
or paragraphs of a treaty to redundancy or inutility.’(62) With respect
to the specific obligation that SPS measures are based on scientific
principles, Article 2.2 directly focuses on the necessary link that must
exist between the SPS measure and the scientific principles and
evidence. Under Articles 5.1 and 5.2 of the SPS
Agreement, such link is
still necessary, but it is indirect as it rests on the requirement for a
risk assessment. Any SPS measure must be based on a risk assessment,
which, in turn, must be based on scientific evidence.”(63)
49. The Panel in US — Poultry (China) agreed with the Panel’s
statements in Australia — Apples and clarified that “where a
measure is not based on a risk assessment as required in Articles 5.1
and 5.2 of the SPS Agreement, this measure is presumed not to be
based on scientific principles and to be maintained without sufficient
scientific evidence”.(64)
Articles 5.4 and 5.6
50. On the relationship between
Articles 5.4 to 5.6 and
Article 2.2,
the Panel in EC — Hormones noted:
“Articles 5.4 to
5.6 may be viewed as specific applications of the
basic obligations provided for in Article 2.2
which, inter alia,
states that ‘Members shall ensure that any sanitary or phytosanitary
measure is applied only to the extent necessary to protect human,
animal or plant life or health’ (emphasis added) and Article 2.3 which
provides that ‘Members shall ensure that their sanitary and
phytosanitary measures do not arbitrarily or unjustifiably
discriminate between Members where identical or similar conditions
prevail …’ and that ‘Sanitary and phytosanitary measures shall
not be applied in a manner which would constitute a disguised
restriction on international trade’ (emphasis added).”(65)
51. The Panel in Japan — Apples emphasized that the
requirement not to maintain a measure without sufficient scientific
evidence under Article 2.2 should not be confused with the requirement
of Article 5.6:
“[W]e should also be careful not to confuse the requirement that a
measure is not maintained without sufficient scientific evidence with
the requirement of Article 5.6 of the SPS Agreement that the
measure is ‘not more trade-restrictive than required to achieve [Japan’s]
appropriate level of … phytosanitary protection’. In other words,
while we might find that some specific requirements of the measure at
issue are not supported by sufficient scientific evidence, our findings
should be limited to Article 2.2.”(66)
Article 5.7
52. The Panel in Japan — Agricultural Products II stated
that a measure consistent with Article 5.7 cannot be found inconsistent
with Article 2.2:
“[B]efore we can find … whether or not Article 2.2
is violated in
this dispute — we recall that Article 2.2 provides that ‘Members
shall ensure that any … phytosanitary measure … is not maintained
without sufficient scientific evidence, except as provided for in
paragraph 7 of Article 5’ (emphasis added). We note that Japan
invokes Article 5.7 in support of its varietal testing requirement. We
therefore need to examine next whether the varietal testing requirement
is a measure meeting the requirements in Article 5.7. If the varietal
testing requirement meets these requirements, we cannot find that it
violates Article 2.2.”(67)
53. In Japan — Agricultural Products II, the Appellate Body
addressed the relationship between the requirement of sufficient
scientific evidence under Article 2.2 and Article 5.7
and considered
that Article 5.7 operates as a qualified exemption from the obligation
under Article 2.2:
“[I]t is clear that Article 5.7 of the SPS Agreement, to
which Article 2.2 explicitly refers, is part of the context of the
latter provision and should be considered in the interpretation of the
obligation not to maintain an SPS measure without sufficient scientific
evidence. Article 5.7 allows Members to adopt provisional SPS measures
‘[i]n cases where relevant scientific evidence is insufficient’ and
certain other requirements are fulfilled. 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.”(68)
54. The Panel in EC — Approval and Marketing of Biotech Products,
however, disagreed with the Appellate Body’s characterization of Article 5.7
as a qualified exemption from Article 2.2. Instead, the
Panel applied the Appellate Body’s logic in EC — Tariff
Preferences and EC — Hormones (where the Appellate Body
considered the relationship between Articles 3.1 and
3.3 of the SPS Agreement) and found that Article 5.7
establishes an autonomous right of
the importing Member:
“Evaluating the relationship between Article 2.2
and Article 5.7 in
the light of the general test provided by the Appellate Body in EC
— Tariff Preferences, we consider that the relationship in
question is one where ‘one provision [Article 5.7] permits, in certain
circumstances, behaviour [namely, the provisional adoption of SPS
measures in cases where scientific evidence is insufficient on the basis
of available pertinent information] that would otherwise be inconsistent
with an obligation in another provision [namely, the obligation in Article 2.2
not to maintain SPS measures without sufficient scientific
evidence], [where] one of the two provisions [namely, Article 2.2]
refers to the other provision, [and] where one of the provisions
[namely, Article 2.2, and in particular the clause “except as provided
for in paragraph 7 of Article 5”] suggests that the obligation [in
Article 2.2 not to maintain SPS measures without sufficient scientific
evidence] is not applicable to measures falling within the scope of Article 5.7’. Thus, we find the general test provided by the Appellate
Body in EC — Tariff Preferences to be applicable, and
application of that test leads us to the conclusion that Article 5.7
should be characterized as a right and not an exception from a general
obligation under Article 2.2. In other words, we consider that in the
same way that ‘Article 3.1 of the SPS Agreement […] excludes from
its scope of application the kinds of situations covered by Article 3.3
of that Agreement’, Article 2.2 excludes from its scope of application
the kinds of situations covered by Article 5.7.”(69)
55. The Panel in EC — Approval and Marketing of Biotech Products
also found that if a challenged SPS measure was adopted and
maintained consistently with Article 5.7
then the obligation in Article 2.2 not to maintain SPS measures without sufficient scientific evidence
is not applicable:
“In concrete terms, characterizing Article 5.7
as a qualified right
rather than an exception means that if a challenged SPS measure was
adopted and is maintained consistently with the four cumulative
requirements of Article 5.7, the situation is ‘as provided for in
paragraph 7 of Article 5’ (Article 2.2), and the obligation in
Article 2.2 not to maintain SPS measures without sufficient scientific evidence
is not applicable to the challenged measure. Conversely, if a challenged
SPS measure is not consistent with one of the four requirements of Article 5.7, the situation is not ‘as provided for in
paragraph 7 of
Article 5’ (Article 2.2), and the relevant obligation in
Article 2.2 is applicable to the challenged measure, provided there are no other
elements which render Article 2.2 inapplicable.”(70)
56. The Panel in EC — Approval and Marketing of Biotech Products
rejected an argument put forth by the European Communities that if a
Panel found an SPS measure to be inconsistent with Article 5.7
it should
find a violation of Article 5.7 alone and not find that the obligations
of Article 2.2 are applicable to the measure:
“To say, as the Appellate Body did, that a measure is ‘inconsistent’
with Article 5.7 when the relevant requirements are not satisfied is not
tantamount to saying that Article 2.2 is inapplicable to that measure.
Indeed, as we have pointed out, the Appellate Body in Japan —
Agricultural Products II also stated that Article 5.7
operates as a
qualified exemption from the obligation under Article 2.2
not to
maintain SPS measures without sufficient scientific evidence. Moreover,
the ordinary meaning of the clause ‘except as provided for in
paragraph 7 of Article 5’ in Article 2.2
indicates that Article 2.2 would be applicable in a situation where a measure meets some, but not
all, of the requirements of Article 5.7.”(71)
Articles 5.1 and 5.7
57. In US/Canada — Continued Suspension, the Appellate Body
addressed the relationship between
Articles 2.2, 5.1 and 5.7. The
Appellate Body emphasized the requirement common to these articles, that
the application of one or another provision depends on the availability
of sufficient scientific evidence:
“Under Article 2.2 of the SPS Agreement, WTO Members are
required to ‘ensure that any sanitary or phytosanitary measure is
applied only to the extent necessary to protect human, animal or plant
life or health, is based on scientific principles and is not maintained
without sufficient scientific evidence, except as provided for in
paragraph 7 of Article 5.’ This requirement is made operative in other
provisions of the SPS Agreement, including Article
5.1, which
requires SPS measures to be ‘based on’ a risk assessment. At the
same time, Article 2.2 excludes from its scope of application situations
in which the relevant scientific evidence is insufficient. In such
situations, the applicable provision is Article
5.7 of the SPS
Agreement. Thus, the applicability of
Articles 2.2 and 5.1, on the
one hand, and of Article 5.7, on the other hand, will depend on the
sufficiency of the scientific evidence. The Appellate Body has explained
that the relevant scientific evidence will be considered ‘insufficient’
for purposes 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.’(72) This
means that where the relevant scientific evidence is sufficient to
perform a risk assessment, as defined in Annex A of the SPS Agreement,
a WTO Member may take an SPS measure only if it is ‘based on’ a risk
assessment in accordance with Article 5.1 and that SPS measure is also
subject to the obligations in Article 2.2. If the relevant scientific
evidence is insufficient to perform a risk assessment, a WTO Member may
take a provisional SPS measure on the basis provided in Article 5.7, but
that Member must meet the obligations set out in that provision.”(73)
3. Article 2.3
(a) Elements of violation
58. The Panel in Australia — Salmon (Article 21.5 — Canada) identified
three elements necessary to find a violation of the first sentence of
Article 2.3:
“[T]hree elements, cumulative in nature, are required for a
violation of this provision:
(1) the measure discriminates between the territories of Members
other than the Member imposing the measure, or between the territory of
the Member imposing the measure and that of another Member;
(2) the discrimination is arbitrary or unjustifiable; and
(3) identical or similar conditions prevail in the territory of the
Members compared.”(74)
(b) Scope of discrimination
59. While the Panel found no violation of
Article 2.3 in Australia
— Salmon (Article 21.5 — Canada)(75), it also stated that
Article 2.3 prohibits not only discrimination between similar products, but also
between different products:
“[W]e are of the view that discrimination in the sense of
Article 2.3, first sentence, may also include discrimination between different
products, e.g. not only discrimination between Canadian salmon and
New Zealand salmon, or Canadian salmon and Australian salmon; but also
discrimination between Canadian salmon and Australian fish including
non-salmonids.”(76)
(c) Relationship with other Articles
(i) Article 1.1
60. On the applicability of the SPS Agreement to measures adopted
before 1 January 1995 and measures adopted since, see paragraph 14
above.
(ii) Article 5.5
61. In EC — Hormones the Appellate Body noted the close
relationship between Articles 2.3 and 5.5:
“Article 5.5 must be read in context. An important part of that
context is Article 2.3 of the SPS Agreement, … When read
together with Article 2.3, Article 5.5 may be seen to be marking out and
elaborating a particular route leading to the same destination set out
in Article 2.3.”(77)
62. In the context of examining the European Communities’ measure
at issue in the light of Article 5.5, the Appellate Body in EC —
Hormones made the following statement with respect to Article 2.3:
“It is well to bear in mind that, after all, the difference in
levels of protection that is characterizable as arbitrary or
unjustifiable is only an element of (indirect) proof that a Member may
actually be applying an SPS measure in a manner that discriminates
between Members or constitutes a disguised restriction on international
trade, prohibited by the basic obligations set out in Article 2.3 of the
SPS Agreement.”(78)
63. The Panel in Australia — Salmon, in a finding upheld by
the Appellate Body(79), held that a violation of
Article 5.5 implied a
violation of Article 2.3:
“Indeed, even though Article
5.5 deals with arbitrary or
unjustifiable distinctions in levels of protection imposed by one
WTO Member for different situations and Article 2.3
addresses, rather,
sanitary measures which (1) arbitrarily or unjustifiably discriminate
between WTO Members or (2) are applied in a manner which would
constitute a disguised restriction on trade; the third element
under Article 5.5 also requires that the measure in dispute
results in discrimination or a disguised restriction on trade. We
conclude, therefore, that if we were to find that all three elements
under Article 5.5 — including, in particular, the third element —
are fulfilled and that, therefore, the more specific Article
5.5 is
violated, such finding can be presumed to imply a violation of the more
general Article 2.3. We do recognize, at the same time, that, given the
more general character of Article 2.3, not all violations of
Article 2.3 are covered by Article
5.5.”(80)
64. In Australia — Salmon, the Appellate Body elaborated on
the relationship between Articles 2.3 and 5.5 and considered that a
finding of violation of Article 5.5
necessarily implies a violation of Article 2.3:
“We recall that the third — and decisive — element of
Article 5.5, discussed above, requires a finding that the SPS measure which
embodies arbitrary or unjustifiable restrictions in levels of protection
results in ‘discrimination or a disguised restriction on international
trade’. Therefore, a finding of violation of Article
5.5 will
necessarily imply a violation of Article 2.3, first sentence, or
Article 2.3, second sentence. Discrimination ‘between Members, including their
own territory and that of others Members’ within the meaning of Article 2.3, first sentence, can be established by following the complex
and indirect route worked out and elaborated by Article
5.5. However, it
is clear that this route is not the only route leading to a finding that
an SPS measure constitutes arbitrary or unjustifiable discrimination
according to Article 2.3, first sentence. Arbitrary or unjustifiable
discrimination in the sense of Article 2.3, first sentence, can be found
to exist without any examination under Article
5.5.”(81)
4. Relationship of Article 2 generally with other Articles
(a) Articles 3 and 5
65. In EC — Hormones, with respect to the Panel’s decision
to examine a claim under Articles 3 and 5 before a claim under
Article 2(82), the Appellate Body indicated a preference for beginning the
analysis with Article 2:
“We are, of course, surprised by the fact that the Panel did not
begin its analysis of this whole case by focusing on Article 2 that is
captioned ‘Basic Rights and Obligations’, an approach that appears
logically attractive.”(83)
66. In Australia — Salmon, where
Articles 2, 3 and 5 were at
issue, the Panel decided to commence its analysis under Article
5,
because (1) Canada, the complaining party, focused initially on this
provision with respect to its claims and (2) the provisions under Article
5 “provide for more specific and detailed rights and
obligations” than Article 2. The Appellate Body did not address this
issue:
“[E]ven if we were to start our examination of this dispute under
Article 3, we would in any event be referred to and thus still need to
address Articles 2 and 5. To conduct our examination of this case in the
most efficient manner, we shall, therefore, first address Articles 2 and
5 … Since in this particular case, (1) Canada itself first presents
its claims under Article 5, before addressing those under
Article 2, and
(2) the provisions invoked by Canada under Article
5 (i.e., Articles
5.1, 5.2, 5.5 and
5.6) all provide for more specific and detailed rights
and obligations than the ‘Basic Rights and Obligations’ set out in
rather broad wording in the provisions invoked by Canada under Article 2
(i.e.,
Articles 2.2 and 2.3), we consider it more appropriate in the
circumstances of this dispute to first deal with Canada’s claims under
Article 5.”(84)
(b) Articles 5, 6, 7 and 8
67. In Japan — Agricultural Products II, where claims were
made under Articles 2, 5,
7 and 8, the Panel began its examination with
Article 2. The Appellate Body did not address this issue.(85)
IV. Article 3
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A. Text of Article 3
Article 3. Harmonization
1. To harmonize sanitary and phytosanitary measures on as wide a
basis as possible, Members shall base their sanitary or phytosanitary
measures on international standards, guidelines or recommendations,
where they exist, except as otherwise provided for in this Agreement,
and in particular in paragraph 3.
2. Sanitary or phytosanitary measures which conform to international
standards, guidelines or recommendations shall be deemed to be necessary
to protect human, animal or plant life or health, and presumed to be
consistent with the relevant provisions of this Agreement and of GATT
1994.
3. Members may introduce or maintain sanitary or phytosanitary
measures which result in a higher level of sanitary or phytosanitary
protection than would be achieved by measures based on the relevant
international standards, guidelines or recommendations, if there is a
scientific justification, or as a consequence of the level of sanitary
or phytosanitary protection a Member determines to be appropriate in
accordance with the relevant provisions of paragraphs 1 through
8 of
Article 5.(2) Notwithstanding the above, all measures which result in a
level of sanitary or phytosanitary protection different from that which
would be achieved by measures based on international standards,
guidelines or recommendations shall not be inconsistent with any other
provision of this Agreement.
(footnote original)
2 For the purposes of paragraph 3 of
Article 3, there is a scientific justification if, on the basis of an
examination and evaluation of available scientific information in
conformity with the relevant provisions of this Agreement, a Member
determines that the relevant international standards, guidelines or
recommendations are not sufficient to achieve its appropriate level of
sanitary or phytosanitary protection.
4. Members shall play a full part, within the limits of their
resources, in the relevant international organizations and their
subsidiary bodies, in particular the Codex Alimentarius Commission, the
International Office of Epizootics, and the international and regional
organizations operating within the framework of the International Plant
Protection Convention, to promote within these organizations the
development and periodic review of standards, guidelines and
recommendations with respect to all aspects of sanitary and
phytosanitary measures.
5. The Committee on Sanitary and Phytosanitary Measures provided for
in paragraphs 1 and 4 of Article 12 (referred to in this Agreement as
the “Committee”) shall develop a procedure to monitor the process of
international harmonization and coordinate efforts in this regard with
the relevant international organizations.
B. Interpretation and Application of Article 3
1. Object and purpose
68. In EC — Hormones, the Appellate Body held that the
object and purpose of Article 3 was to promote the harmonization of
national SPS measures:
“In generalized terms, the object and purpose of Article 3 is to
promote the harmonization of the SPS measures of Members on as wide a
basis as possible, while recognizing and safeguarding, at the same time,
the right and duty of Members to protect the life and health of their
people. The ultimate goal of the harmonization of SPS measures is to
prevent the use of such measures for arbitrary or unjustifiable
discrimination between Members or as a disguised restriction on
international trade, without preventing Members from adopting or
enforcing measures which are both ‘necessary to protect’ human life
or health and ‘based on scientific principles’, and without
requiring them to change their appropriate level of protection.”(86)
69. In US/Canada — Continued Suspension, the Appellate Body
first recalled the harmonization objective of the SPS Agreement,
outlined in the preamble and further described in Article 3 of the
Agreement. Subsequently, the Appellate Body went on to consider the
purpose of the latter provision, ruling that it stresses the relevance
of international standardization bodies and Members’ right to choose
their appropriate level of protection:
“As the preamble of the SPS Agreement recognizes, one of the
primary objectives of the SPS Agreement is to ‘further the use
of harmonized sanitary and phytosanitary measures between Members, on
the basis of international standards, guidelines and recommendations
developed by the relevant international organizations’. This objective
finds reflection in Article 3 of the SPS Agreement, which
encourages the harmonization of SPS measures on the basis of
international standards, while at the same time recognizing the WTO
Members’ right to determine their appropriate level of protection.
Article 3.1 of the SPS Agreement establishes that Members shall
‘base their [SPS] measures on international standards, guidelines or
recommendations, where they exist, except as otherwise provided in this
Agreement, and in particular in paragraph 3.2.”(87)
2. Article 3.1
(a) General
70. In US/Canada — Continued Suspension, the Appellate Body
specified the “international standards, guidelines and recommendations”
considered in Article 3.1 and 3.2 of the SPS
Agreement, emphasizing the
Codex Alimentarius as the relevant standardization body in matters of
food safety:
“The relevant ‘international standards, guidelines or
recommendations’ that are referred to in Articles 3.1 and
3.2 are
those set by the international organizations listed in Annex A,
paragraph 3 of the SPS Agreement, which includes Codex as the
relevant standard-setting organization for matters of food safety.”(88)
(b) “base[d] … on”
71. The Appellate Body in EC — Hormones considered that “based
on” is a looser standard than “conform to”. In the Appellate Body’s
view, the Panel’s interpretation of the term “based on”, as
requiring Members to harmonize their SPS measures by conforming them
with international standards(89), was not in accordance with the object
and purpose of Article 3, which, the Appellate Body interpreted to be
the harmonization of SPS measures, in the future:
“[T]he object and purpose of Article 3 run counter to the Panel’s
interpretation. That purpose, Article 3.1 states, is ‘[t]o harmonize [SPS]
measures on as wide a basis as possible … It is clear to us that
harmonization of SPS measures of Members on the basis of international
standards is projected in the Agreement, as a goal, yet to be
realized in the future. To read Article 3.1 as requiring Members
to harmonize their SPS measures by conforming those measures with
international standards, guidelines and recommendations, in the
here and now, is, in effect, to vest such international standards,
guidelines and recommendations (which are by the terms of the Codex recommendatory
in form and nature) with obligatory force and effect.’ The
Panel’s interpretation of Article 3.1 would, in other words, transform
those standards, guidelines and recommendations into binding norms.
But, as already noted, the SPS Agreement itself sets out no
indication of any intent on the part of the Members to do so. We cannot
lightly assume that sovereign states intended to impose upon themselves
the more onerous, rather than the less burdensome, obligation by
mandating conformity or compliance with such standards,
guidelines and recommendations. To sustain such an assumption and to
warrant such a far-reaching interpretation, treaty language far more
specific and compelling than that found in Article 3 of the SPS
Agreement would be necessary.”(90)
72. On the Appellate Body’s distinction between the terms “based
on” and “conformto” and the requirements for a measure to “conform
to” an international standard, refer to the reproduced findings in EC
— Hormones, in paragraph 80 below.
(c) “international standards, guidelines or recommendations where
they exist”
(i) Panel’s mandate
73. With respect to the phrase “international standards … where
they exist”, the Panel in EC — Hormones noted that it only
needed to determine whether such standards exist rather than considering
the level of the standards, the consensus behind them or their adoption
process:
“Article 3.1 unambiguously prescribes that ‘… Members shall
base their sanitary … measures on international standards … where
they exist …’ (emphasis added). Paragraph 3 of Annex A of the SPS
Agreement states equally clearly that the international standards
mentioned in Article 3:1 are ‘for food safety, the standards … established
by the Codex Alimentarius Commission relating to … veterinary
drug … residues …’ (emphasis added). No other
conditions are imposed in the SPS Agreement on the relevance of
international standards for the purposes of Article
3. Therefore, as a Panel making a finding on whether or not a Member has an obligation to
base its sanitary measure on international standards in accordance with
Article 3.1, we only need to determine whether such international
standards exist. For these purposes, we need not consider (i) whether
the standards reflect levels of protection or sanitary measures
or the type of sanitary measure they recommend, or (ii)
whether these standards have been adopted by consensus or by a wide or
narrow majority, or (iii) whether the period during which they have been
discussed or the date of their adoption was before or after the entry
into force of the SPS Agreement.”(91)
(ii) Relevance of international standards for individual diseases
74. In Australia — Salmon, in the context of animal health,
the Panel held that even if no international standards existed for the
entire range of fish diseases at issue, this fact did not signify that
an international standard applying to only one of the diseases at issue
could not be relevant in the case before it:
“Paragraph 3(b) of Annex A to the SPS Agreement indicates
that the international standards, guidelines or recommendations referred
to in Article 3 for animal health (the concern at issue in this
dispute) are those developed under the auspices of the International
Office of Epizootics (‘OIE’). Both parties agree that the
International Aquatic Animal Health Code adopted by the OIE in 1995 (‘OIE
Code’) provides international guidelines on a disease-by-disease
basis. However, they also agree that as of today no relevant OIE
guideline exists which deals with salmon on a product specific basis.
Moreover, both parties also agree that OIE guidelines do not exist for
all of the 24 diseases of concern to Australia. Therefore, even if we
were to examine first, if and how many relevant international guidelines
exist and second address the question of whether Australia deviates from
these guidelines, we would thereafter still need to examine either (1)
in the event Australia does deviate from any such guidelines contrary to
Article 3, whether the measure in dispute could not be based on
Australia’s concern for any of the other diseases for which no
international guideline exists (in casu, under Articles 2 and
5);
or (2) in the event Australia’s measure is based on and/or conforms to
any such guidelines, whether that part of the measure for which no
guidelines exist, is consistent with the provisions of the SPS
Agreement other than Article 3 (in casu,
Articles 2 and 5).
In this respect, we are of the view, however, that the fact that in this
case no international guidelines exist for all 24 diseases of
concern does not mean that an international guideline which applies to
only one of these diseases cannot be relevant (or, according to
the language of Article 3.1, does not ‘exist’) for the measure at
issue.”(92)
(iii) Revision and adoption of OIE standards, guidelines and
recommendations
75. The Panel in Australia — Salmon stated as follows, with
respect to the standards developed by the OIE:
“[T]he SPS Agreement (paragraph 3(b) of Annex
A) explicitly
directs us to the OIE and the standards, guidelines and recommendations
it develops … The fact that the OIE Code is subject to revision or the
way it has been adopted in our view does not change its validity for our
purposes.”(93)
(d) Burden of proof
(i) Establishing prima facie inconsistency on the complainant’s
side
76. In EC — Hormones, the Appellate Body disagreed with the
Panel which had held that if a measure enacted by a Member does not
conform to an international standard, the complaining Member is exempted
from making a prima facie case of inconsistency of this measure with the
SPS Agreement or with the GATT 1994(94):
“Under Article 3.1 of the SPS Agreement, a Member may choose
to establish an SPS measure that is based on the existing relevant international
standard, guideline or recommendation. Such a measure may adopt some,
not necessarily all, of the elements of the international standard. The
Member imposing this measure does not benefit from the presumption of
consistency set up in Article 3.2; but, as earlier observed, the Member
is not penalized by exemption of a complaining Member from the normal
burden of showing a prima facie case of inconsistency with
Article 3.1 or any other relevant Article of the SPS Agreement or
of the GATT 1994.”(95)
(e) Relationship with other paragraphs of Article 3
(i) Paragraphs 1, 2 and 3
77. The Panel in EC — Hormones identified a “general rule–exception”
relationship between paragraphs 1, 2 and
3 of Article 3(96). The Appellate
Body disagreed with this view:
“The Panel relies on two interpretative points in reaching its …
finding. First, the Panel posits the existence of a ‘general rule–exception’
relationship between Article 3.1 (the general obligation) and
Article
3.3 (an exception) and applies to the SPS Agreement what it calls
‘established practice under GATT 1947 and GATT 1994’ to the effect
that the burden of justifying a measure under Article XX of the GATT
1994 rests on the defending party. It appears to us that the Panel has
misconceived the relationship between Articles
3.1, 3.2 and 3.3, a
relationship discussed below, which is qualitatively different from the
relationship between, for instance, Articles I or
III and Article XX of
the GATT 1994. Article 3.1 of the SPS Agreement simply excludes
from its scope of application the kinds of situations covered by Article
3.3 of that Agreement, that is, where a Member has projected for itself
a higher level of sanitary protection than would be achieved by a
measure based on an international standard. Article 3.3 recognizes the
autonomous right of a Member to establish such higher level of
protection, provided that that Member complies with certain requirements
in promulgating SPS measures to achieve that level. … merely
characterizing a treaty provision as an ‘exception’ does not by
itself justify a ‘stricter’ or ‘narrower’ interpretation of that
provision than would be warranted by examination of the ordinary meaning
of the actual treaty words, viewed in context and in the light of the
treaty’s object and purpose, or, in other words, by applying the
normal rules of treaty interpretation.”(97)
78. The Appellate Body in EC — Hormones made the following
distinctions between Articles 3.1, 3.2 and
3.3:
“Under Article 3.2 of the SPS Agreement, a Member may decide
to promulgate an SPS measure that conforms to an international standard.
Such a measure would embody the international standard completely and,
for practical purposes, converts it into a municipal standard. Such a
measure enjoys the benefit of a presumption (albeit a rebuttable one)
that it is consistent with the relevant provisions of the SPS
Agreement and of the GATT 1994.
Under Article 3.1 of the SPS Agreement, a Member may choose to
establish an SPS measure that is based on the existing relevant
international standard, guideline or recommendation. Such a measure may
adopt some, not necessarily all, of the elements of the international
standard. The Member imposing this measure does not benefit from the
presumption of consistency set up in Article 3.2; but, as earlier
observed, the Member is not penalized by exemption of a complaining
Member from the normal burden of showing a prima facie case of
inconsistency with Article 3.1 or any other relevant Article of the SPS
Agreement or of the GATT 1994.
Under Article 3.3 of the SPS Agreement, a Member may decide to
set for itself a level of protection different from that implicit in the
international standard, and to implement or embody that level of
protection in a measure not ‘based on’ the international standard.
The Member’s appropriate level of protection may be higher than that
implied in the international standard. The right of a Member to
determine its own appropriate level of sanitary protection is an
important right.”(98)
3. Article 3.2
(a) General
79. In US/Canada — Continued Suspension, the Appellate Body
discussed the presumption of consistency that applies to SPS measures
under Article 3.2 of the SPS Agreement. The Appellate Body stated:
“Article 3.2 provides that SPS measures which conform to
international standards shall be deemed necessary to protect human,
animal or plant life or health, and shall be presumed to be consistent
with the relevant provisions of the SPS Agreement and of the GATT
1994. This presumption, however, does not apply where a Member has not
adopted a measure that conforms with an international standard. Article
3.2 is inapplicable where a Member chooses a level of protection that is
higher than would be achieved by a measure based on an international
standard. The presumption in Article 3.2 cannot be interpreted to imply
that there is sufficient scientific evidence to perform a risk
assessment where a Member chooses a higher level of protection.”(99)
(b) “conform to”
80. In EC — Hormones, the Appellate Body reversed the Panel’s
finding that Article 3.2 “equates measures based on international
standards with measures which conformto such standards”.(100) The
Appellate Body drew a distinction between the terms “based on” and
“conform to” and noted certain requirements for a measure to “conform
to” an international standard:
“In the first place, the ordinary meaning of ‘based on’ is
quite different from the plain or natural import of ‘conform to’. A
thing is commonly said to be ‘based on’ another thing when the
former ‘stands’ or is ‘founded’ or ‘built’ upon or ‘is
supported by’ the latter. In contrast, much more is required before
one thing may be regarded as ‘conform[ing] to’ another: the former
must ‘comply with’, ‘yield or show compliance’ with the latter.
The reference of ‘conform to’ is to ‘correspondence in form or
manner’, to ‘compliance with’ or ‘acquiescence’, to ‘follow[ing]
in form or nature’. A measure that ‘conforms to’ and incorporates
a Codex standard is, of course, ‘based on’ that standard. A measure,
however, based on the same standard might not conform to that standard,
as where only some, not all, of the elements of the standard are
incorporated into the measure.”(101)
81. The Appellate Body in EC — Hormones, after
distinguishing between the ordinary meaning of “based on” and “conform
to”, as referred to in paragraph 80 above, noted that they were used
in different provisions of the SPS Agreement and rejected the view that
such different usage was “merely inadvertent”:
“In the second place, ‘based on’ and ‘conformto’ are used
in different articles, as well as in differing paragraphs of the same
article. Thus, Article 2.2 uses ‘based on’, while
Article 2.4
employs ‘conformto’. Article 3.1 requires the Members to ‘base’
their SPS measures on international standards; however, Article 3.2
speaks of measures which ‘conform to’ international standards.
Article 3.3 once again refers to measures ‘based on’ international
standards. The implication arises that the choice and use of different
words in different places in the SPS Agreement are deliberate,
and that the different words are designed to convey different meanings.
A treaty interpreter is not entitled to assume that such usage was
merely inadvertent on the part of the Members who negotiated and wrote
that Agreement. Canada has suggested the use of different terms was ‘accidental’
in this case, but has offered no convincing argument to support its
suggestion. We do not believe this suggestion has overturned the
inference of deliberate choice.”(102)
(c) Burden of proof
(i) Presumption of consistency
82. The Appellate Body in EC — Hormones, in the context of
addressing the burden of proof under the SPS Agreement, stated that the
presumption in Article 3.2 does not mean that Members who decide not to
conform their measures with a given international standard may be
subject to a special burden of proof as penalty:
“The presumption of consistency with relevant provisions of the SPS
Agreement that arises under Article 3.2 in respect of measures that
conform to international standards may well be an incentive for
Members so to conform their SPS measures with such standards. It is
clear, however, that a decision of a Member not to conform a particular
measure with an international standard does not authorize imposition of
a special or generalized burden of proof upon that Member, which may,
more often than not, amount to a penalty.”(103)
83. The Appellate Body in EC — Hormones also noted that
measures pursuant to Article 3.2 enjoy the benefit of a presumption,
albeit a rebuttable one.(104) See also
paragraph 78 above.
84. In US/Canada — Continued Suspension, the Appellate Body
observed that:
“Article 3.2 provides that SPS measures which conform to
international standards shall be deemed necessary to protect human,
animal or plant life or health, and shall be presumed to be consistent
with the relevant provisions of the SPS Agreement and of the GATT
1994. This presumption, however, does not apply where a Member has not
adopted a measure that conforms with an international standard. Article 3.2
is inapplicable where a Member chooses a level of protection that is
higher than would be achieved by a measure based on an international
standard. The presumption in Article 3.2 cannot be interpreted to imply
that there is sufficient scientific evidence to perform a risk
assessment where a Member chooses a higher level of protection.”(105)
(d) Relationship with other paragraphs of Article 3
85. The Appellate Body in EC — Hormones clarified the
meaning of Article 3.2 while discussing the relationship between
Articles 3.1, 3.2 and 3.3. See
paragraph 78 above.
(e) Relationship with other Articles
(i) Article 5.1
86. In US/Canada — Continued Suspension, the Appellate Body
reflected on the relevance of Article 3.2 presumption of consistency of
the risk assessment under Article 5.1. See
paragraph 84 above.
(ii) Article 5.6
87. The Panel in Australia — Salmon referred to
Article 3 in
the context of its analysis under Article
5.6:
“Given the repeated reference made in the SPS Agreement to
the relevant international organizations, in this dispute the OIE
[International Office of Epizootics], and the recommendations they
produce (e.g., Articles 3.1 and 5.1), as well as to the more general
objective of harmonization (e.g., Articles 3.4 and the
sixth preamble),
we consider that appropriate weight should be given to [the] opinion on
Option 5 [i.e., evisceration of the fish, proposed by the OIE]”.(106)
(iii) Article 5.7
88. The Appellate Body in US/Canada — Continued Suspension stated
that Article 3.2 provides that SPS measures which conform to
international standards shall be presumed to be consistent with the
relevant provisions of the SPS Agreement and of the GATT 1994. This
presumption however, does not apply where a Member has not adopted a
measure that conforms with an international standard and can therefore
not be interpreted to imply that there is sufficient scientific evidence
to perform a risk assessment where a Member chooses a higher level of
protection. The Appellate Body found that this situation is borne out by
Article 5.7.(107)
4. Article 3.3
(a) General
89. In EC — Hormones, the Appellate Body held that the “right
of a Member to establish its own level of sanitary protection under
Article 3.3 of the SPS Agreement is an autonomous right and not an ‘exception’
from a ‘general obligation’ under Article 3.1”.(108) In this
respect, see also the excerpts from the Appellate Body report in
paragraph 77 above.
90. The Appellate Body in EC — Hormones found that the right
of a Member to define its appropriate level of protection is not an
absolute or unqualified right:
“The right of a Member to define its appropriate level of
protection is not, however, an absolute or unqualified right. Article
3.3 also makes this clear …”(109)
91. Regarding the relationship between
Article
3.3 and the “precautionary
principle”, the Appellate Body in EC — Hormones also noted
that the precautionary principle is reflected in Article
3.3.(110)
(b) “based on”
92. The Appellate Body in EC — Hormones disagreed with the
Panel’s finding that “for a sanitary measure to be based on an
international standard …, that measure needs to reflect the same level
of sanitary protection as the standard”.(111) According to the Appellate
Body, the Panel read too much into the text of Article
3.3:
“It appears to us that the Panel reads much more into
Article 3.3
than can be reasonably supported by the actual text of Article 3.3.
Moreover, the Panel’s entire analysis rests on its flawed premise that
‘based on’, as used in Articles 3.1 and 3.3, means the same thing as
‘conform to’ as used in Article 3.2. As already noted, we are
compelled to reject this premise as an error in law.”(112)
93. For further interpretation of this term as it appears in
Article 3.1, see paragraph 71
above.
(c) “relevant international standards, guidelines or
recommendations”
94. In US/Canada — Continued Suspension, the Appellate Body
ruled on the relevance of international standards in the SPS Agreement
while recognizing the right of a WTO Member to introduce a measure that
would result in a higher level of protection than that provided under an
international standard:
“There is a rebuttable presumption that SPS measures that conform
to international standards, guidelines or recommendations are ‘necessary
to protect human, animal or plant life or health, and … [are]
consistent with the relevant provisions of this Agreement and of GATT
1994. While use of international standards is encouraged, the SPS
Agreement recognizes the right of WTO Members to introduce or
maintain an SPS measure which results in a higher level of protection
than would be achieved by measures based on such international
standards. Where a Member exercises its right to adopt an SPS measure
that results in a higher level of protection, that right is qualified in
that the SPS measure must comply with the other requirements of the SPS
Agreement including the right to perform a risk assessment. However,
the Appellate Body has found that the adoption of an SPS measure that
does not conform to an international standard and results in a higher
level of protection does not give rise to a more exacting burden of
proof under the SPS Agreement.”(113)
(d) Compliance with risk assessment requirements
95. The Appellate Body in EC — Hormones found that footnote
to Article 3.3, which defines scientific justification as an “examination
and evaluation of available scientific information in conformity with
the relevant provisions of this Agreement”, obliges the party that has
introduced a measure that results in a level of protection higher than
that which would be achieved by measures based on the relevant
international standards to comply with the requirements established
under Article 5.1:
“Article 3.3 is evidently not a model of clarity in drafting and
communication. The use of the disjunctive ‘or’ does indicate that
two situations are intended to be covered. These are the introduction or
maintenance of SPS measures which result in a higher level of
protection:
(a) ‘if there is a scientific justification’; or
(b) ‘as a consequence of the level of … protection a Member
determines to be appropriate in accordance with the relevant provisions
of paragraphs 1 through 8 of Article 5’.”
It is true that situation (a) does not speak of Articles 5.1 through
5.8. Nevertheless, two points need to be noted. First, the last sentence
of Article 3.3 requires that “all measures which result in a [higher]
level of … protection”, that is to say, measures falling within
situation (a) as well as those falling within situation (b), be “not
inconsistent with any other provision of [the SPS] Agreement”. “Any other provision of this Agreement” textually includes
Article 5. Secondly, the footnote to Article
3.3, while attached to the
end of the first sentence, defines “scientific justification” as an
“examination and evaluation of available scientific information in
conformity with relevant provisions of this Agreement …”. This
examination and evaluation would appear to partake of the nature of the
risk assessment required in Article 5.1 and defined in
paragraph 4 of
Annex A of the SPS Agreement.
“On balance, we agree with the Panel’s finding that although the
European Communities has established for itself a level of protection
higher, or more exacting, than the level of protection implied in the
relevant Codex standards, guidelines or recommendations, the European
Communities was bound to comply with the requirements established in
Article 5.1. We are not unaware that this finding tends to suggest that
the distinction made in Article 3.3 between two situations may have very
limited effects and may, to that extent, be more apparent than real. Its
involved and layered language actually leaves us with no choice.”(114)
(e) “scientific justification”
(i) Rational relationship
96. In Japan — Agricultural Products II, the Appellate Body
recalled its findings in EC — Hormones with respect to
the relationship between
Articles 2.2 and 3.3. Based on these findings,
the Appellate Body considered that there is scientific justification for
an SPS measure, within the meaning of Article 3.3, if there is a
rational relationship between the SPS measure and the available
scientific information:
“[T]he context of the phrase ‘not maintained without sufficient
scientific evidence’ in Article 2.2 also includes
Article 3.3 of the SPS
Agreement. Pursuant to Article 3.3, Members may introduce or
maintain an SPS measure which results in a higher level of protection
than would be achieved by a measure based on a relevant international
standard, inter alia, ‘if there is a scientific justification’
and the measure is not inconsistent with any other provision of the SPS
Agreement. In European Communities — Hormones, we stated:
… the footnote to Article 3.3 … defines ‘scientific
justification’ as an ‘examination and evaluation of available
scientific information in conformity with relevant provisions of this
Agreement … ’.(115)
We also stated:
[t]his examination and evaluation would appear to partake of the
nature of the risk assessment required in Article 5.1 and defined in
paragraph 4 of Annex A of the SPS Agreement.
In our opinion, there is a ‘scientific justification’ for an SPS
measure, within the meaning of Article 3.3, if there is a rational
relationship between the SPS measure at issue and the available
scientific information.”(116)
(f) Relationship with other paragraphs of Article 3
97. In EC — Hormones, the Appellate Body revoked the Panel’s
finding that Article 3.3 would be an exception to
Article 3.1. See 77 above.
98. As regards the relationship between
Articles 3.1, 3.2 and
3.3,
see paragraph 78 above.
(g) Relationship with other Articles
(i) Article 1.1
99. As relates to applicability of the SPS Agreement to measures
adopted before 1 January 1995 and measures adopted since, see paragraph
14 above.
(ii) Article 5.1
100. Based on its analysis of
Article 3.3 referenced in paragraph
95 above, the Appellate Body in EC — Hormones concluded that “the
Panel’s finding that the European Communities is required by Article
3.3 to comply with the requirements of Article 5.1 is correct”.(117)
5. Article 3.5
101. With respect to the procedures to monitor the process of
international harmonization, see Article 12.4
below.
(a) Relationship with other Articles
102. With respect to the relationship between
Articles 3 and Articles
2 and 5, see paragraphs 65 and
66 above.
V. Article 4
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A. Text of Article 4
Article 4: Equivalence
1. Members shall accept the sanitary or phytosanitary measures of
other Members as equivalent, even if these measures differ from their
own or from those used by other Members trading in the same product, if
the exporting Member objectively demonstrates to the importing Member
that its measures achieve the importing Member’s appropriate level of
sanitary or phytosanitary protection. For this purpose, reasonable
access shall be given, upon request, to the importing Member for
inspection, testing and other relevant procedures.
2. Members shall, upon request, enter into consultations with the aim
of achieving bilateral and multilateral agreements on recognition of the
equivalence of specified sanitary or phytosanitary measures.
B. Interpretation and Application of Article 4
1. Obligation to determine appropriate level of protection
103. In Australia — Salmon, the Appellate Body noted that
although the SPS Agreement does not explicitly oblige Members to
determine their appropriate level of protection, such an obligation is
implicit in several provisions of the Agreement, including Articles 4.1
and 4.2:
“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(118),
Article 5.4 and Article 5.6 of the SPS
Agreement.”(119)
2. Decision on equivalence
(a) General
104. At its meeting of 26 October 2001, the SPS Committee adopted a
Decision on the Implementation of Article 4 (“Decision on Equivalence”)(120),
which was subsequently clarified and/or revised on 15 November 2002(121),
15 July 2003(122), 26 March
2004(123), 2 April
2004(124), and 23 July
2004.(125)
The revision provided, inter alia, clarifications of paragraphs
5, 6 and 7 of the Decision, as foreseen in the Programme for Further
Work adopted by the SPS Committee in March 2002.(126) The Committee also
adopted a procedure and format for the notification of recognition of
equivalence.(127)
105. The Panel in US — Poultry (China) considered that while
the Decision on Equivalence is not binding, it expands on the Members’
own understanding of how Article 4 relates to the rest of the SPS
Agreement and how it is to be implemented.(128)
(b) Concept of equivalence
106. The preamble of the Decision on Equivalence notes that
equivalence requires “acceptance of alternative measures that meet an
importing Member’s appropriate level of sanitary or phytosanitary
protection”, but not duplication or “sameness” of measures.
Paragraph 1 of the Decision on Equivalence provides:
“1. Equivalence can be accepted for a specific measure or measures
related to a certain product or categories of products, or on a
systems-wide basis. Members shall, when so requested, seek to accept the
equivalence of a measure related to a certain product or category of
products. An evaluation of the product-related infrastructure and
programmes within which the measure is being applied may also be
necessary.(129) Members may further, where necessary and appropriate, seek
more comprehensive and broad-ranging agreements on equivalence. The
acceptance of the equivalence of a measure related to a single product
may not require the development of a systems-wide equivalence agreement.”(130)
(c) Explanation of SPS measures taken by importing Member
107. In order to facilitate the implementation of the provisions of
Article 4, the Decision on Equivalence describes the elements to be
included in an explanation of the sanitary and phytosanitary measures
taken by an importing Member, when so requested by an exporting Member:
(a) The importing Member should explain the objective and rationale
of the sanitary or phytosanitary measure and identify clearly the risks
that the relevant measure is intended to address.
(b) The importing Member should indicate the appropriate level of
protection which its sanitary or phytosanitary measure is designed to
achieve.(131)
(c) The explanation should be accompanied by a copy of the risk
assessment on which the sanitary or phytosanitary measure is based or a
technical justification based on a relevant international standard,
guideline or recommendation.
(d) The importing Member should also provide any additional
information which may assist the exporting Member to provide an
objective demonstration of the equivalence of its own measure.(132)
(d) Procedure for the recognition of equivalence
(i) General
108. The Decision on Equivalence provides for a number of
requirements and recommendations regarding the procedure to be followed
for the recognition of equivalence:
“3. An importing Member shall respond in a timely manner to any
request from an exporting Member for consideration of the equivalence of
its measures, normally within a six-month period of time.
4. The exporting Member shall provide appropriate science-based and
technical information to support its objective demonstration that its
measure achieves the appropriate level of protection identified by the
importing Member. This information may include, inter alia,
reference to relevant international standards, or to relevant risk
assessments undertaken by the importing Member or by another Member. In
addition, the exporting Member shall provide reasonable access, upon
request, to the importing Member for inspection, testing and other
relevant procedures for the recognition of equivalence.
…
7. When considering a request for recognition of equivalence, the
importing Member should analyze the science-based and technical
information provided by the exporting Member on its sanitary or
phytosanitary measures with a view to determining whether these measures
achieve the level of protection provided by its own relevant sanitary or
phytosanitary measures.”(133)
(ii) Accelerated procedure
109. Paragraph 5 of the Decision on Equivalence provides that “[t]he
importing Member should accelerate its procedure for determining
equivalence in respect of those products which it has historically
imported from the exporting Member.” In the Decision the SPS Committee
notes that the importance of knowledge based on historic trade reasons
has been fully recognized by other international organizations and
international agencies:
“This information and experience, if directly relevant to the
product and measure under consideration, should be taken into account in
the recognition of equivalence of measures proposed by the exporting
Member. In particular, information already available to the importing
Member should not be sought again with respect to procedures to
determine the equivalence of measures proposed by the exporting Member.”(134)
(iii) Duty not to interrupt or suspend imports
110. Paragraph 6 of the Decision on Equivalence establishes that “a
request by an exporting Member for recognition of the equivalence of its
measures with regard to a specific product [by an importing Member]
shall not be in itself a reason to disrupt or suspend on-going imports
from that Member of the product in question”. The SPS Committee
clarifies paragraph 6 of the Decision on Equivalence as follows:
“[S]ince a request for recognition of equivalence does not in
itself alter the way in which trade is occurring, there is no
justification for disruption or suspension of trade. If an importing
Member were to disrupt or suspend trade solely because it had received a
request for an equivalence determination, it would be in apparent
violation of its obligations under the SPS Agreement (e.g. under
Article 2).”(135)
111. Also in relation to paragraph 6, the Decision on Equivalence
provides that a request for recognition of equivalence does not preclude
an importing Member from taking measures necessary to achieve the
appropriate level of protection:
“[A] request for recognition of equivalence does not impede the
right of an importing Member to take any measure it may decide is
necessary to achieve its appropriate level of protection, including in
response to an emergency situation. However, if the decision to impose
some additional control measure were to coincide with consideration by
the same Member of a request for recognition of equivalence, this might
lead an exporting Member whose trade is affected to suspect that the two
events were linked. To avoid any misinterpretation of this kind, the
Committee recommends that the importing Member should give an immediate
and comprehensive explanation of the reasons for its action in
restricting trade to any other Members affected, and that it should also
follow the normal or emergency notification procedures established under
the SPS Agreement.”(136)
(iv) Comparison of level of protection
112. Paragraph 7 of the Decision on Equivalence provides that Members
should analyse the science-based and technical information provided by
the exporting Member on its measures with a view to determining whether
these measures achieve the level of protection provided by its own
relevant sanitary or phytosanitary measure. The SPS Committee noted, in
this regard, that conscientious implementation of the Guidelines to
Further the Practical Implementation of Article
5.5 (G/SPS/15)
will assist Members in determining equivalence. The Committee suggests
that Members consider the Codex approach of establishing an objective
basis for comparison or the similar OIE approach when determining the
equivalence of sanitary measures, and requests that the Interim
Commission on Phytosanitary Measures take into consideration the
Decision on Equivalence in its future work on judgment of equivalence.
113. Furthermore, the SPS Committee agrees that:
“[W]here the objective basis for comparison, or a similar approach
established by a relevant international organization, demonstrates that
the level of protection achieved by the importing Member’s sanitary or
phytosanitary measure differs from its appropriate level of protection,
the importing Member should resolve this difference independently of the
procedure for determination of equivalence.”(137)
(v) Technical assistance
114. Paragraph 8 of the Decision on Equivalence provides further
that, in line with Article 9 of the SPS
Agreement, Members shall give
full consideration to requests for appropriate technical assistance to
facilitate the implementation of Article 4, especially when those
requests come from developing countries:
“In accordance with Article 9 of the Agreement on the Application
of Sanitary and Phytosanitary Measures, a Member shall give full
consideration to requests by another Member, especially a developing
country Member, for appropriate technical assistance to facilitate the
implementation of Article 4. This assistance may, inter alia, be
to help an exporting Member identify and implement measures which can be
recognized as equivalent, or to otherwise enhance market access
opportunities. Such assistance may also be with regard to the
development and provision of the appropriate science-based and technical
information referred to in paragraph 4,
above.”(138)
(e) International cooperation outside the WTO
115. In order to improve international cooperation in this sphere
outside the WTO, paragraph 9 of the Decision on Equivalence advises
active participation of Members in the ongoing work in the Codex
Alimentarius Commission and in any work related to equivalence
undertaken by the World Organisation for Animal Health and in the
framework of the International Plant Protection Convention.
116. Paragraph 10 of the Decision on Equivalence outlines a number of
actions to be taken by the SPS Committee in this regard:
“The Committee on Sanitary and Phytosanitary Measures recognizes
the urgency for the development of guidance on the judgement of
equivalence and shall formally encourage the Codex Alimentarius
Commission to complete its work with regard to equivalence as
expeditiously as possible. The Committee on Sanitary and Phytosanitary
Measures shall also formally encourage the World Organization for Animal
Health and the Interim Commission on Phytosanitary Measures to elaborate
guidelines, as appropriate, on equivalence of sanitary and phytosanitary
measures and equivalence agreements in the animal health and plant
protection areas. The Codex Alimentarius Commission, the World
Organization for Animal Health and the Interim Commission on
Phytosanitary Measures shall be invited to keep the Committee on
Sanitary and Phytosanitary Measures regularly informed regarding their
activities relating to equivalence.”(139)
(f) Notification
117. In accordance with paragraph 12 of the Decision on Equivalence,
Members should regularly inform the SPS Committee of their experiences
concerning the implementation of Article 4. In particular, the Decision
encourages Members to inform the SPS Committee of the successful
conclusion of any bilateral equivalence agreement.(140)
3. Specific programme for the further implementation of Article 4
118. Paragraph 13 of the initial Decision on Equivalence asks the SPS
Committee to develop a specific programme to further the implementation
of Article 4, paying particular attention to the problems encountered by
developing country Members.(141) At the Doha Ministerial Conference,
Members also instructed the SPS Committee to develop the same specific
programme.(142) At its meeting of 21 March 2002, the SPS Committee adopted
a specific programme for the further implementation of Article
4.(143) The
programme established the timetable and the agendas of the meetings for
the discussion of the Decision on Equivalence, and resulted in the
subsequent revisions of the Decision.
4. Relationship with other Articles
(a) General
119. The Panel in US — Poultry (China) in reviewing the text
of Article 4 and the Decision on Equivalence observed that Article 4 is
not the only provision in the SPS Agreement that regulates the operation
of equivalence regimes. The Panel therefore reasoned that this provision
should not be applied in isolation from other relevant provisions of the
SPS Agreement. The Panel stated:
“[T]he Panel sees nothing in Article 4 or the Decision which
suggests that Article 4 is the only provision in the SPS Agreement which
regulates the operation of equivalence regimes, including their ‘procedural
requirements’ or that it should be applied in isolation from other
relevant provisions of the SPS Agreement. In fact, the Decision
states that the importing Member should explain its SPS measures by
identifying the risk and provide a copy of the risk assessment or
technical standard on which the measure is based. Further, it requires
the importing Member to analyse the science-based and technical
information provided by the exporting Member with respect to that Member’s
own SPS measure( s) to examine if the measure achieves the importing
Member’s ALOP.
The Decision, therefore, implies that measures taken as part of an
equivalence regime, subject to Article 4, should also comply with other
relevant provisions of the SPS Agreement.”(144)
120. The Panel in US — Poultry (China) concluded that a
determination of the particular provisions applicable to a given measure
must be done on a case-by-case basis. With specific reference to Article
4, the Panel determined that nothing in Article
4 a priori precludes
a given measure from being subject to the disciplines of Articles
2, 4
and 5 at the same time.(145)
(b) Article 2.2
121. The Panel in Japan — Apples held that, while
Article 4
might form part of the relevant context in the interpretation of Article 2.2, its purpose is clearly different from that of
Article 2.2. Thus, in
the assessment of claims under Article 2.2, a panel need not take into
account the requirements of Article 4:
“Japan also argues that we should take into account the
requirements of Article 4 of the SPS Agreement when considering
whether the measure at issue is supported by sufficient scientific
evidence. We agree that other provisions of the SPS Agreement are
part of the context of Article 2.2, as recalled by the Appellate Body in
Japan — Agricultural Products II.(146) However,
Article 4 deals
with the specific question of the recognition of equivalence of
measures. Unlike Articles 3.3, 5.1 and
5.7, the purpose of Article 4 is
clearly different from that of Article 2.2. We also note that the United
States did not raise any claim under Article 4 and that this Article is
not a defence against violations of other provisions of the SPS
Agreement. As a result, we see no reason to consider Japan’s
arguments regarding Article 4 in our assessment of
Article 2.2, other
than to the extent that Article 4 might form part of the relevant
context in the interpretation of Article 2.2.”(147)
Footnotes:
1. (footnote original) See the first recital of the
preamble of the SPS Agreement. Article 2.3 of the SPS Agreement also
provides that “Members shall ensure that their sanitary and
phytosanitary measures do not arbitrarily or unjustifiably discriminate
between Members where identical or similar conditions prevail, including
between their own territory and that of other Members”, and that SPS
measures “shall not be applied in a manner which would constitute a
disguised restriction on international trade”. back to text
2. Appellate Body Reports, US/Canada — Continued Suspension,
para. 522. back to text
3. See, for example, G/SPS/GEN/727 and G/SPS/GEN/747 (Codex); G/SPS/GEN/708
(OIE) and G/SPS/GEN/729 (IPPC). back to text
4. Appellate Body Reports, US/Canada — Continued Suspension,
para. 532. back to text
5. Appellate Body Report, EC — Hormones, para. 165.
back to text
6. (footnote original) One example is the obligation
contained in Article 3.1 of the SPS Agreement which provides that “[t]o
harmonize sanitary and phytosanitary measures on as wide a basis as
possible, Members shall base their sanitary and phytosanitary measures
on international standards, guidelines or recommendations, where they
exist …” back to text
7. (footnote original) Preambular para. 6 of the SPS
Agreement. back to text
8. (footnote original) Preambular para. 2 of the SPS
Agreement. back to text
9. Panel Report, EC — Hormones (Canada), paras. 8.41–8.42.
back to text
10. Appellate Body Report, EC — Hormones,
para. 123
back to text
11. Panel Report, EC — Approval and Marketing of Biotech
Products, paras. 7.88 and 7.89. back to text
12. Appellate Body Report, EC — Hormones,
para. 124
back to text
13. Panel Reports, EC — Hormones (Canada), para. 8.39;
and EC — Hormones (US), para. 8.36. See also Panel Reports, EC
— Approval and Marketing of Biotech Products, para. 7.2554; and US
— Poultry (China), para. 7.82. back to text
14. Panel Report, EC — Hormones (Canada),
paras. 8.24
and 8.25 back to text
15. Panel Report, EC — Hormones (Canada),
para. 8.26.
back to text
16. Panel Report, EC — Approval and Marketing of Biotech
Products, paras. 7.434 and 7.435. back to text
17. Panel Report,
US
— Poultry (China), para. 7.87.
back to text
18. Appellate Body Report, EC — Hormones,
para. 128.
back to text
19. Panel Report, EC — Approval and Marketing of Biotech
Products, paras. 7.196, 7.207 and. 7.2555. back to text
20. See paras. 4–7 of G/SPS/W/230 and paras. 122–137 of G/SPS/R/53.
back to text
21. G/SPS/55. back to text
22. G/SPS/55. back to text
23. Panel Report,
US
— Poultry (China), para. 7.142.
back to text
24. Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.1424. back to text
25. Panel Report,
US
— Poultry (China), para. 7.200.
back to text
26. Appellate Body Report, EC — Hormones,
para. 124.
back to text
27. Appellate Body Report, EC — Hormones,
para. 177.
back to text
28. Appellate Body Report, Japan — Agricultural Products II,
para. 73. back to text
29. Appellate Body Report, Japan — Agricultural Products II,
para. 74. back to text
30. Appellate Body Report, Japan — Agricultural Products II,
para. 82. back to text
31. Panel Report, Japan — Apples, paras. 8.92–8.93,
8.98. back to text
32. Appellate Body Report, Japan — Agricultural Products II,
para. 84. back to text
33. Panel Report, Japan — Apples,
paras. 8.179, 8.180,
8.182 and 8.198. back to text
34. (footnote original) European Communities —
Hormones, supra, footnote 12, para. 97. back to text
35. (footnote original) European Communities —
Hormones, supra, footnote 12, para. 98. back to text
36. Appellate Body Report, Japan — Agricultural Products II,
para. 122. back to text
37. (footnote original) Appellate Body Report on US —
Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at 335.
back to text
38. Appellate Body Report, Japan — Apples, para. 156.
back to text
39. See Panel Report, Japan — Agricultural Products II,
para. 8.6:
“At our first substantive meeting, Japan stated that it
considers the following US products to be hosts of codling moth:
apricots, cherries, plums, pears, quinces, peaches (including
nectarines), apples and walnuts. We consider, therefore, that we are
called upon to examine the measure before us as it applies to all
products covered by the contested measure. However, as we already noted
in our preliminary ruling, the parties only submitted evidence with
respect to apples, cherries, nectarines and walnuts. We shall,
therefore, examine the measure at issue on the basis of that evidence
and refer to the experts advising the Panel when it comes to evaluating
the relevance of that evidence for the other products covered by the
measure in dispute.”
See also Panel Report, Japan — Apples,
para 8.106. back to text
40. Appellate Body Report, Japan — Agricultural Products II,
para. 137. back to text
41. The Panel’s finding derives from the Appellate Body’s
statement in US — Wool Shirts and Blouses where it was
considered that the nature and scope of evidence required to establish a
prima facie case “will necessarily vary from measure to measure,
provision to provision, and case to case.” (See Appellate Body Report,
US — Wool Shirts and Blouses, p. 14, DSR 1997:I, 323, at 335.)
In that dispute, the Panel appears to have concluded that in order to
demonstrate a prima facie case that Japan’s measure is maintained
without sufficient scientific evidence, it sufficed for the United
States to address only the question of whether mature, symptomless
apples could serve as a pathway for fire blight. (See Appellate Body Report, Japan — Apples,
para. 159.) back to text
42. Appellate Body Report, Japan — Apples,
paras. 158–160.
back to text
43. In paragraph 7.2977 of the report on EC — Approval and
Marketing of Biotech Products, the Panel stated:
“Our view of the nature of the relationship between Article 2.2
and Article 5.7 and of the proper allocation of the burden of proof under
these provisions is consistent with that of the Panel in Japan —
Agricultural Products II. In that case, the United States as the
complaining party claimed that the challenged measure was inconsistent, inter
alia, with the obligation in Article 2.2 not to maintain SPS
measures without sufficient scientific evidence. After reaching the
provisional conclusion that the challenged measure was inconsistent with
Article 2.2, the Panel noted that Japan, the responding party, was
invoking Article 5.7 in support of its measure. Recalling the text of
Article 2.2, and notably the clause ‘except as provided for in
paragraph 7 of Article 5’, the Panel then stated that in view of Japan’s
invocation of Article 5.7 it needed to examine whether the challenged
measure was a measure meeting the requirements in Article 5.7. The Panel
noted that ‘[i]f the [challenged measure] meets these requirements, we
cannot find that it violates Article 2.2’. The Panel then went on to
analyse the measure in the light of the requirements of Article 5.7,
finding that ‘the United States [as the complaining party] has
established a presumption that Japan did not comply with the
requirements in the second sentence of Article 5.7. We also consider
that Japan has not been able to rebut this presumption’. In the light
of this finding, the Panel then reached the overall and final conclusion
that the challenged measure was inconsistent with Article 2.2.”
back to text
44. (footnote original) Appellate Body Report, EC —
Tariff Preferences, para. 88. back to text
45. (footnote original) Appellate Body Report, EC —
Sardines, para. 275 (emphasis in original). back to text
46. Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.2976. back to text
47. Appellate Body Report, EC — Hormones,
para. 124. See
also para. 6 above. back to text
48. Panel Report, Japan — Agricultural Products II, para.
8.32. For the same statement made in the context of Article
5, see paras.
122–123 below. back to text
49. (footnote original) Appellate Body Report, Japan — Agricultural Products II,
para. 129. back to text
50. Appellate Body Report, Japan — Apples,
para. 158.
back to text
51. (footnote original) Appellate Body Report on India
— Quantitative Restrictions, para. 142. back to text
52. (footnote original) Appellate Body Report on EC —
Bed Linen (Article 21.5 — India), paras. 170, 177 and 181;
Appellate Body Report on EC — Sardines, para. 229; Appellate
Body Report on Korea — Alcoholic Beverages, paras. 161–162;
Appellate Body Report on EC — Hormones, para. 132, and
Appellate Body Report on US — Wheat Gluten, para. 151. See
also, Appellate Body Report on Australia — Salmon, paras. 262–267;
Appellate Body Report on Japan — Agricultural Products II,
paras. 140–142; and Appellate Body Report on Korea — Dairy,
paras. 137–138. back to text
53. (footnote original) Appellate Body Report on EC —
Asbestos, para. 161. back to text
54. Appellate Body Report, Japan — Apples, para 166.
back to text
55. Appellate Body Report, Japan — Apples,
paras. 165
and 167. back to text
56. (footnote original)
Appellate Body Report on Japan — Agricultural Products II,
para. 74. back to text
57. Panel Report, Japan — Apples,
para. 8.107.
back to text
58. Appellate Body Report, EC — Hormones,
para. 180.
back to text
59. In Australia — Salmon, the Panel reiterated the
statement made by the Appellate Body in EC — Hormones as
regards the relationship between Articles 2.3 and
5.5, stating:
“[A]rticles 5.1 and
5.2 … ‘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.”
Panel
Report, Australia — Salmon, para. 8.52. back to text
60. Appellate Body Report, Australia — Salmon, para.
138. See also Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.3396. back to text
61. Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.1757. back to text
62. (footnote original) Appellate Body Report on US —
Gasoline, p. 23. back to text
63. Panel Report, Australia — Apples, para. 7.214.
back to text
64. Panel Report,
US
— Poultry (China), para. 7.201.
back to text
65. Panel Reports, EC — Hormones (Canada),
para. 8.99
and EC — Hormones (US), para. 8.96. back to text
66. Panel Report, Japan — Apples,
para. 8.78.
back to text
67. Panel Reports, Japan — Agricultural Products II,
para. 8.48; and Japan
— Apples, para. 8.200. The Panel in
Japan
— Apples also followed the approach set by the Panel in Japan —
Agricultural Products II and refrained from making final
findings with respect to the consistency of the measure at issue with Article 2.2
until the Panel had completed its analysis under Article 5.7. The Panel further stated that the only situation where it would not
need to address Article 5.7 after the examination of the
Article 2.2 claim would be if the measure was found to be “not maintained without
sufficient scientific evidence” within the meaning of Article 2.2:
“[W]e believe it appropriate to follow, in this case too, the
approach of the Panel in Japan —
Agricultural Products II.
There is only one situation where it may not be necessary to address Article 5.7. This is if we find that the measure or measures as a whole
is/are ‘not maintained without sufficient scientific evidence’
within the meaning of Article 2.2. If we were to find, however, that
part or all of the measure or measures at issue is/are maintained
without sufficient scientific evidence, we would suspend our final
conclusion on the consistency of the measure(s) at issue with that
provision until we have completed our examination under Article 5.7 of
the SPS Agreement.”
See Panel Report, Japan — Agricultural Products II, para. 8.4. back to text
68. Appellate Body Report, Japan — Agricultural Products II,
para. 80. back to text
69. Panel Report, EC — Approval and Marketing of Biotech
Products, paras. 7.2968–7.2929. back to text
70. Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.2974. back to text
71. Panel Report, EC — Approval and Marketing of Biotech
Products, para. 7.2975. back to text
72. (footnote original) Appellate Body Report, Japan — Apples,
para. 179. back to text
73. Appellate Body Reports, US/Canada — Continued Suspension,
para. 674. back to text
74. Panel Report, Australia — Salmon (Article 21.5 —
Canada), para. 7.111. back to text
75. Panel Report, Australia — Salmon (Article 21.5 —
Canada), paras. 7.113–7.114. back to text
76. Panel Report, Australia — Salmon (Article 21.5 —
Canada), para. 7.112. back to text
77. Appellate Body Report, EC — Hormones,
para. 212.
back to text
78. Appellate Body Report, EC — Hormones,
para. 240.
back to text
79. Appellate Body Report, Australia — Salmon,
para.
178. back to text
80. Panel
Report, Australia — Salmon, para. 8.109.
back to text
81. Appellate Body Report, Australia — Salmon,
para.
252. See also Panel Report,
US
— Poultry (China), para. 7.318.
back to text
82. Panel Reports, EC — Hormones (Canada),
paras. 8.41–8.43
and 8.254; and EC — Hormones (US),
paras. 8.45–8.47 and
8.251. back to text
83. Appellate Body Report, EC — Hormones,
para. 250.
back to text
84. Panel
Report, Australia — Salmon, paras. 8.47–8.48.
back to text
85. Panel Report, Japan — Agricultural Products II, para.
8.16. back to text
86. Appellate Body Report, EC — Hormones,
para. 177.
back to text
87. Appellate Body Reports, US/Canada — Continued Suspension,
para. 690. back to text
88. Appellate Body Reports, US/Canada — Continued Suspension,
para. 693. back to text
89. In EC — Hormones, the Panel stated:
“We find … that for a sanitary measure to be based on an
international standard in accordance with Article
3.1, that measure needs
to reflect the same level of sanitary protection as the standard.
In this dispute a comparison thus needs to be made between the level of
protection reflected in the EC measures in dispute and that reflected in
the Codex standards for each of the five hormones at issue.”
Panel Reports, EC — Hormones (Canada),
para. 8.72; and EC — Hormones (US),
para. 8.69. back to text
90. Appellate Body Report, EC — Hormones,
para. 165.
back to text
91. Panel Reports, EC — Hormones (Canada),
para. 8.72;
and EC — Hormones (US),
para. 8.69. back to text
92. Panel
Report, Australia — Salmon, para. 8.46.
back to text
93. Panel
Report, Australia — Salmon, para. 7.11.
back to text
94. Panel Reports, EC — Hormones (United States), paras.
8.86–8.88; and EC — Hormones (Canada), paras. 9.81–9.91.
back to text
95. Appellate Body Report, EC — Hormones,
para. 171.
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96. The Panel stated:
“One purpose of the SPS Agreement, as explicitly recognized in the
preamble, is to promote the use of international standards, guidelines
and recommendations. To that end, Article 3.1 imposes an obligation on
all Members to base their sanitary measures on international standards
except as otherwise provided for in the SPS Agreement, and in particular
in Article 3.3 thereof. In this sense, Article 3.3
provides an exception
to the general obligation contained in Article
3.1. Article 3.2, in
turn, specifies that the complaining party has the burden of overcoming
a presumption of consistency with the SPS Agreement in the case of a
measure based on international standards. It thereby suggests by
implication that when a measure is not so based, the burden is on the
respondent to show that the measure is justified under the exceptions
provided for in Article 3.3.
We find, therefore, that once the
complaining party provides a prima facie case (i) that there is
an international standard with respect to the measure in dispute, and
(ii) that the measure in dispute is not based on this standard,
the burden of proof under Article 3.3 shifts to the defending party.”
Panel Reports, EC — Hormones (US), paras. 8.86 and 8.87; and EC — Hormones (Canada),
paras. 8.89 and 8.90.
back to text
97. Appellate Body Report, EC — Hormones,
para. 104.
back to text
98. Appellate Body Report, EC — Hormones,
paras. 170–172.
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99. Appellate Body
Report, US/Canada — Continued Suspension,
paras. 694. back to text
100. Panel Reports, EC — Hormones (Canada),
para. 8.75;
and EC — Hormones (US),
para. 8.72. back to text
101. Appellate Body Report, EC — Hormones,
para. 163.
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102. Appellate Body Report, EC — Hormones,
para. 164.
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103. Appellate Body Report, EC — Hormones,
para. 102.
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104. Appellate Body Report, EC — Hormones,
para. 170.
back to text
105. Appellate Body Reports, US/Canada — Continued Suspension,
para. 694. back to text
106. Panel
Report, Australia — Salmon, para. 8.180.
back to text
107. Appellate Body Reports, US/Canada — Continued Suspension,
paras. 694 and 695. back to text
108. Appellate Body Report, EC — Hormones,
para. 172.
back to text
109. Appellate Body Report, EC — Hormones,
para. 173.
back to text
110. Appellate Body Report, EC — Hormones,
para. 124.
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111. Panel Reports, EC — Hormones (Canada),
para. 8.76;
and EC — Hormones (US),
para. 8.73. back to text
112. Appellate Body Report, EC — Hormones,
para. 168.
back to text
113. Appellate Body Report, Canada — Continued Suspension and
US — Continued Suspension, para. 532. back to text
114. Appellate Body Report, EC — Hormones,
paras. 173,
175 and 176. back to text
115. (footnote original) European Communities —
Hormones, supra, footnote 12, para. 175. back to text
116. Appellate Body Report, Japan — Agricultural Products II,
para. 79. back to text
117. Appellate Body Report, EC — Hormones,
para. 177.
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118. (footnote original) Reasonable questions from
interested Members within the meaning of paragraph 3 of Annex B can
arise, in particular, with respect to the application of Article 4 of
the SPS Agreement. Articles 4.1 and 4.2 imply, in our view, a clear
obligation of the importing Member to determine its appropriate level of
protection. back to text
119. Appellate Body Report, Australia — Salmon,
para.
205 back to text
120. G/SPS/19. back to text
121. G/SPS/19/Add.1. back to text
122. G/SPS/19/Add.2. back to text
123. G/SPS/19/Add.3. back to text
124. G/SPS/19/Rev.1. back to text
125. G/SPS/19/Rev.2. back to text
126. G/SPS/20. back to text
127. G/SPS/7/Rev.2/Add.1. back to text
128. Panel Report,
US
— Poultry (China), para. 7.136.
back to text
129. Product-related infrastructure and programmes is in
reference to testing, inspection and other relevant requirements
specific to product safety. back to text
130. G/SPS/19/Rev.2. back to text
131. In doing so, Members should take into account the Guidelines
to Further the Practical Implementation of Article 5.5 adopted by
the Committee on Sanitary and Phytosanitary Measures at its meeting of
21–22 June 2000 (document G/SPS/15, dated 18 July 2000).
back to text
132. G/SPS/19/Rev.2. back to text
133. G/SPS/19/Rev.2,
paras. 1–4. back to text
134. G/SPS/19/Rev.2, para. 5. back to text
135. G/SPS/19/Rev.2.,
para. 6. back to text
136. G/SPS/19/Rev.2,
para. 6. back to text
137. G/SPS/19/Rev.2,
para. 7. back to text
138. G/SPS/19/Rev.2,
para. 8. back to text
139. G/SPS/19/Rev.2,
paras. 9 and 10. back to text
140. G/SPS/19, para. 12. back to text
141. G/SPS/19,
para. 13. back to text
142. WT/MIN(01)/17, para. 3.3. back to text
143. G/SPS/20. back to text
144. Panel Report,
US
— Poultry (China), paras. 7.136–7.137.
back to text
145. Panel Report,
US
— Poultry (China), para. 7.139.
back to text
146. (footnote original)
Appellate Body Report on Japan — Agricultural Products II,
para. 74 back to text
147. Panel Report, Japan — Apples,
para. 8.107.
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