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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. “international standards, guidelines and recommendations”
1. In 1995, the Codex Alimentarius Commission, the International
Office of Epizootics, and the Secretariat of the International Plant
Protection Convention provided the SPS Committee with lists of
international standards they had adopted.(1)
2. The precautionary principle
(a) Status in international law
2. 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.”(2)
(b) Relationship with the SPS Agreement
3. As regards the relationship between the “precautionary principle”
and the SPS Agreement, the Appellate Body noted the following four
elements, one of which concerns 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”.(3)
4. See also
paragraph 22 below.
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(4) 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) General
5. The Panel on EC — Hormones identified two elements in order for
a measure to fall under 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”.(5)
(ii) Applicable to all SPS measures in force
6. 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.”(6)
(b) Article 1.2: Reference to Annex A
7. As regards the interpretation of Annex A, see
Section XVI.B below.
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. Article 2.2
(a) “maintained without sufficient scientific evidence”
(i) General
8. In EC — Hormones, the Appellate Body referred to the requirement
of “sufficient scientific evidence” under Article
2.2. as part of
the negotiated balance contained in the SPS Agreement between the
promotion of international trade and the protection of human life and
health.(7)
(ii) “Sufficient”
Meaning
9.
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”.(8)
Context
10.
The Appellate Body on Japan — Agricultural Products II also
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”.(9)
“Patent insufficiency” standard
11.
After an examination of the context of the term “sufficient”, the Appellate Body on 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”.(10)
(iii) “Scientific evidence”
12.
In addition to the meaning of the term “sufficient” under
Article 2.2, the Panel on Japan — Apples looked into the meaning of
“scientific evidence” — i.e. the nature of the evidence that
should be considered — and concluded that Article 2.2 excludes not
only insufficiently substantiated information, but also a
non-demonstrated hypothesis:
“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.”(11)
(iv) A rational and objective relationship
13.
The Appellate Body on Japan — Agricultural Products II
established that Article 2.2 requires a rational or objective
relationship between the SPS measure and the scientific evidence:
“[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.”(12)
(v) Case-by-case methodology
14.
In Japan — Agricultural Products
II, the Appellate Body
considered that the determination whether there is a rational
relationship between the SPS measure and the scientific evidence must be
conducted on a case-by-case basis. In this regard, see paragraph 12
above.
15.
The Panel on Japan — Apples had come up with its own
methodology to assess whether a measure was maintained without
sufficient scientific evidence. The Panel considered both the risk of
transmission of fire blight inherent in mature, symptomless apples and
the risk associated with apples other than mature, symptomless apples
that might enter Japanese territory as a result of human/technical
errors in the sorting of apples or illegal actions.(13) On appeal, the
Appellate Body emphasized that whether a given approach or methodology
used to assess ‘sufficient scientific evidence’ within the meaning
of Article 2.2 is appropriate should be determined on a case-by-case
basis. The Appellate Body upheld the Panel’s methodology as
appropriate to the particular circumstances of the case before it:
“We emphasize, following the Appellate Body’s statement in
Japan
— Agricultural Products II, that whether a given approach or
methodology is appropriate in order to assess whether a measure is
maintained ‘without sufficient scientific evidence’, within the
meaning of Article 2.2, depends on the ‘particular circumstances of
the case’, and must be ‘determined on a case-by-case basis’.(14)
Thus, the approach followed by the Panel in this case — disassembling
the sequence of events to identify the risk and comparing it with the
measure — does not exhaust the range of methodologies available to
determine whether a measure is maintained ‘without sufficient
scientific evidence’ within the meaning of Article
2.2. Approaches
different from that followed by the Panel in this case could also prove
appropriate to evaluate whether a measure is maintained without
sufficient scientific evidence within the meaning of Article
2.2.
Whether or not a particular approach is appropriate will depend on the
‘particular circumstances of the case’.(15) The methodology adopted by
the Panel was appropriate to the particular circumstances of the case
before it and, therefore, we see no error in the Panel’s reliance on
it.”(16)
(vi) Measure to be proportionate to risk
16.
Based on its conclusion that all the individual requirements
contained in the measure should be treated altogether as the
phytosanitary measure at issue in the case, the Panel on Japan — Apples considered 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. The Appellate Body found that the Panel’s
approach was appropriate in the circumstances:
“[W]e concluded, on the basis of the elements before us, that there
was not sufficient scientific evidence to support the view that apples
are likely to serve as a pathway for the entry, establishment or spread
of fire blight within Japan. Given the negligible risk identified on the
basis of the scientific evidence and the nature of the elements
composing the phytosanitary measure at issue, the measure on the face of
it is disproportionate to that risk.
More particularly, …, we have found that the following requirements
are instances of elements of the measure at issue which are most
obviously ‘maintained without sufficient scientific evidence’,
either as such or when applied in cumulation with others, …
For the reasons mentioned above, we conclude that the phytosanitary
measure at issue is clearly disproportionate to the risk identified on
the basis of the scientific evidence available. …”(17)
(b) Burden of proof
(i) Presumption of “no relevant studies or report”
17.
The Panel on 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. The Appellate Body agreed with the Panel and rejected the United
States’ claim that the Panel had imposed on it an erroneous burden of
proof:
“[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”.(18)
18.
Applying the same reasoning, the Panel on
Japan — Apples said
that the United States had to raise a presumption that there were no
relevant scientific studies or reports to prove that the measure at
issue imposed by Japan was not supported by sufficient scientific
evidence:
“Japan argues, that, in order for the Untied States to establish a
prima facie case under Article 2.2, it has to positively prove the ‘insufficiency’
of scientific evidence. The United States claims that there is simply no
scientific evidence supporting the measure at issue. Under these
circumstances, and in application of the reasoning of the Appellate Body
in Japan — Agricultural Products II, we consider that the Untied
States should raise a presumption that there are no relevant scientific
studies or reports in order to demonstrate that the measure at issue is
not supported by sufficient scientific evidence.(19) If Japan submits
elements to rebut that presumption, we would have to weigh the evidence
before us.”(20)
(ii) Allocation of burden of proof
19.
On the allocation of the burden of proof, the Appellate Body on
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.’(21)
In this case, the United States made a series of allegations of fact
relating to mature, symptomless apples as a possible pathway for fire
blight, and sought to substantiate these allegations. Japan sought to
counter the case made by the United States … Japan was thus
responsible for providing proof of the allegations of fact it advanced
in relation to apples other than mature, symptomless apples being
exported to Japan as a result of errors of handling or illegal actions.
…”(22)
(iii) Establishing prima facie case of inconsistency
20.
Regarding the concept of prima facie, the Appellate Body further
explained in Japan — Apples that the complainant could establish a
prima facie case of inconsistency with Article 2.2 of the SPS Agreement
even though it confined its arguments to a claim asserted by it:
“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.(23) 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(24), and noted that the experts
characterized errors of handling and illegal actions as ‘small’ or
‘debatable’ risks.(25) 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. …”(26)
21.
As regards the burden of proof in general, see Section
XXXVI(D)
of the Chapter on the DSU.
(c) Standard of review
(i) Panel to take into account the prudence commonly exercised by
governments
22.
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 the 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”.(27)
(ii) Panel not to conduct own risk assessment
23. The Panel on 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”.(28)
(iii) Panel to assess relevant allegations of fact
24. The Appellate Body on
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(29) 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.(30)
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”.(31)
(iv) Panel to take into account views of experts while evaluating
scientific evidence
25. The Appellate Body on
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.(32) 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(33); they enjoy ‘a margin of discretion in assessing the value of
the evidence, and the weight to be ascribed to that evidence.’(34)
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.”(35)
(v) Panel not obliged to give precedence to importing Member’s
approach to scientific evidence and risk
26. The Appellate Body on
Japan — Apples held that a panel was not
obliged to give precedence to the importing Member’s approach to
scientific evidence and risk over 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. On appeal,
the Appellate Body rejected Japan’s argument that the Panel erred in
the application of Article 2.2 by focusing on the experts’ views
rather than according a “certain degree of discretion” to the
importing Member in the manner in which it chooses, weighs, and
evaluates scientific evidence:
“Regarding Japan’s contention that the Panel should have made its
assessment under Article 2.2 in light of Japan’s approach to risk and
scientific evidence, we recall that, in EC — Hormones, the Appellate
Body addressed the question of the standard of review that a panel
should apply in the assessment of scientific evidence submitted in
proceedings under the SPS Agreement. It stated that Article 11 of the
DSU sets out the applicable standard, requiring panels to make an ‘objective
assessment of the facts’. It added that, as regards fact-finding by
panels and the appreciation of scientific evidence, total deference to
the findings of the national authorities would not ensure an objective
assessment as required by Article 11 of the
DSU.(36) In our view, Japan’s
submission that the Panel was obliged to favour Japan’s approach to
risk and scientific evidence over the view of experts conflicts with the
Appellate Body’s articulation of the standard of ‘objective
assessment’ of fact.
… For these reasons, we reject the contention that, under
Article 2.2, a panel is obliged to give precedence to the importing Member’s
approach to scientific evidence and risk when analyzing and assessing
scientific evidence. Consequently, we disagree with Japan that the Panel
erred in assessing whether the United States had established a prima
facie case when it did so from a perspective different from that
inherent in Japan’s approach to scientific evidence and risk. …”(37)
27. As
regards the panels’ standard of review in general, see
Article XI of the Chapter on the DSU.
(d) Relationship with other Articles
(i) Article 1.1
28. As regards applicability of the
SPS Agreement to measures adopted
before 1 January 1995 and measures adopted since, see paragraph 6
above.
(ii) Article 4
29. The Panel on
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(38).
Article 4 deals with the specific
question of the recognition of equivalence of measures. Unlike Article
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.”(39)
(iii) Article 5
Article 5.1
30. 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, which reads as follows: …
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.”(40)
31. The Appellate Body on
Japan — Agricultural Products II also
considered it useful in interpreting Article 2.2, and, in particular,
the meaning of the word “sufficient”, to recall its statement on
Article 5.1 in its Report on EC — Hormones.(41)
32. In Australia
— Salmon, the Appellate Body concluded that a
violation of Article 5.1 also implied an inconsistency with
Article 2.2 (see paragraph 128 below):
“[B]y maintaining an import prohibition on fresh, chilled or frozen
ocean-caught Pacific salmon, in violation of Article
5.1, Australia has,
by implication, also acted inconsistently with Article
2.2 of the SPS
Agreement.”(42)
Articles 5.4 and 5.6
33. On the relationship between
Articles 5.4 to 5.6 and
Article 2.2,
the Panel on EC — Hormones, in a statement not reviewed by the
Appellate Body, 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).”(43)
34. The Panel on Japan — Apples emphasized that the requirement not
to maintain a measure without sufficient scientific 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.”(44)
Article 5.7
35. The Panel on 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.”(45)
36. 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.”(46)
37. The Panel on Japan — Apples also followed the approach by the
Panel on 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.”(47)
2. Article 2.3
(a) Elements of violation
38. The Panel on Australia — Salmon (Article 21.5 — Canada)
identified three elements necessary to find a violation 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.”(48)
(b) Scope of discrimination
39. In Australia — Salmon (Article 21.5
— Canada), while the
Panel found no violation of Article
2.3(49), 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”.(50)
(c) Relationship with other Articles
(i) Article 1.1
40. On the the applicability of the
SPS Agreement to measures adopted
before 1 January 1995 and measures adopted since, see paragraph 6
above.
(ii) Article 5.5
41. 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.”(51)
42. In the context of examining the European Communities’ measure
at issue in the light of Article 5.5, the Appellate Body on 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”.(52)
43. The Appellate Body on
EC — Hormones further discussed the
relationship between Articles 2.3 and 5.5
with respect to the Panel’s
decision to examine the claim under Articles 3 and
5 that under Article
2:
“We recall the reading that we have given above to
Articles 2 and 5
… and that similarly Article 2.3 informs Article 5.5 — but believe
that further analysis of their relationship should await another case.”(53)
44. The Panel on Australia
— Salmon, in a finding upheld by the
Appellate Body(54), 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) arbitrary 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.”(55)
45. 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.”(56)
3. Relationship with other Articles
(a) Articles 3 and 5
46. 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(57),
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.”(58)
47. 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”.(59)
48. In Australia — Salmon (Article 21.5
— Canada), Canada alleged
the violation of Articles 2, 5,
6 and 8. Similarly to the original
Panel, the Article 21.5 Panel started its examination with Article
5.(60)
(b) Articles 5, 6, 7 and 8
49. 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.(61)
50. See also
paragraph 48 above.
IV. Article 3
back to top
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. General
(a) Object and purpose
51. 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.”(62)
2. Article 3.1
(a) “base[d] … on”
52. The Appellate Body on
EC — Hormones while examining the meaning
of the term “based on” as used in this Article, also held that the
Panel’s interpretation of the term “based on” was not in
accordance with the object and purpose of Article 3, which the Appellate
Body held was to harmonize SPS measures in the future:
“In the third place, the 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.”(63)
(b) “international standards, guidelines or recommendations where
they exist”
(i) Panel’s mandate
53. With respect to the phrase “international standards … where
they exist”, the Panel on EC — Hormones noted as follows:
“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.”(64)
(ii) Relevance of international standards for individual diseases
54. 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
Epizooties (‘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.”(65)
(iii) Validity of OIE standards, guidelines and recommendations
55. The Panel on Australia — Salmon held with respect to standards
developed by the International Office of Epizootics (OIE) as follows:
“[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.”(66)
56. With respect to existing international standards, see
paragraph 1 above.
(c) Burden of proof
(i) Exemptions from establishing prima facie inconsistency
57. 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(67):
“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.”(68)
(d) Relationship with other paragraphs of Article 3
(i) Paragraphs 1, 2 and 3
58. The Panel on EC — Hormones identified a relationship of rule
and exception between paragraphs 1, 2 and
3 of Article 3. The Appellate
Body disagreed:
“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.”(69)
59. The Appellate Body on EC — Hormones then distinguished the
meaning of Articles 3.1, 3.2 and
3.3 in the following terms:
“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.”(70)
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.”(71)
3. Article 3.2
(a) “… conform to …”
(i) Distinction from “based on”
60. In EC — Hormones, the Appellate Body reversed the Panel’s
finding that Article 3.2 “equates measures based on international
standards with measures which conform to such standards”.(72) The
Appellate Body first 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.”(73)
(ii) Distinction as used in different parts of SPS Agreement
61. The Appellate Body on EC
— Hormones, after distinguishing between
the ordinary meaning of “based on” and “conform to”, as referred
to in paragraph 60 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 ‘conform to’ 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 ‘conform to’. 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.”(74)
(b) Burden of proof
(i) Presumption of consistency
62. The Appellate Body on EC
— Hormones, in the context of
addressing the burden of proof under the SPS Agreement, stated the
following with respect to the presumption in Article
3.2:
“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.”(75)
63. The Appellate Body on EC — Hormones also noted that measures
pursuant to Article 3.2 enjoy the benefit of a presumption, albeit a
rebuttable one.(76) See also
paragraph 59 above.
(c) Relationship with other paragraphs of Article 3
64. The Appellate Body on EC — Hormones clarified the meaning of
Article 3.2 while discussing the relationship between
Article 3.1, 3.2
and 3.3. See paragraph 59 above.
(d) Relationship with other Articles
65. The Panel on 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]”.(77)
4. Article 3.3
(a) General
66. 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”.(78) In this respect,
see also the excerpts from the Appellate Body report in paragraph 59
above.
67. The Appellate Body on
EC — Hormones also 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 …”(79)
68. Regarding the relationship between
Article 3.3 and the “precautionary
principle”, the Appellate Body on EC — Hormones also noted that the
precautionary principle is reflected in Article
3.3.(80) See
paragraph 3 above.
(b) “based on”
69. On 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” (emphasis
original)(81), the Appellate Body on
EC — Hormones noted as follows:
“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. The correctness of
the rest of the Panel’s intricate interpretation and examination of
the consequences of the Panel’s litmus test, however, have to be left
for another day and another case”.(82)
70. For further interpretation of this term as it appears in
Article 3.1, see paragraph 52 above.
(c) Clarification of conditions
71. The Appellate Body on
EC — Hormones, distinguished between two
situations in Article 3.3, but ultimately held that
Article 3.3 was not
“a model of clarity in drafting and communication” and that the
distinction was “more apparent than real”:
“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”.(83)
(d) “scientific justification”
(i) Rational relationship
72. In Japan — Agricultural Products
II, with respect to the terms
“scientific justification”, the Appellate Body noted that:
“[I]n 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.”(84)
(e) Relationship with other paragraphs of Article 3
73. As regards the relationship between
Articles 3.1, 3.2 and
3.3,
see paragraph 59 above.
(f) Relationship with other Articles
(i) Article 1.1
74. As relates to applicability of the
SPS Agreement to measures
adopted before 1 January 1995 and measures adopted since, see paragraph
6 above.
(ii) Article 5.1
75. Based on its analysis of
Article 3.3 referenced in
paragraph 71 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”.(85)
5. Article 3.5
76. With respect to the procedures to monitor the process of
international harmonization, see section XIII.B.3
below.
6. Relationship with other Articles
77. With respect to the relationship between
Articles 3 and Articles 2 and
5, see paragraphs 46–47 above.
V. Article 4
back to top
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
(a) Decision on equivalence
(i) General
78. At its meeting of 26 October 2001, the SPS Committee adopted a
Decision on the Implementation of Article 4 (“Decision on Equivalence”).(86)
At its meetings of 7–8 November 2002 and 24–25 June 2003, the SPS
Committee agreed on clarifications of paragraphs
5, 6 and 7 of the Decision(87), as foreseen in the Programme for Further Work adopted by the
SPS Committee in March 2002.(88) A further clarification to paragraph 5
was agreed by the Committee at its meeting of 17–18 March 2004.(89)
(ii) Concept of equivalence
79. 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.(90) 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.”
(iii) Explanation of SPS measures taken by importing Member
80. 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:
“2. In the context of facilitating the implementation of
Article 4,
on request of the exporting Member, 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. The importing Member should indicate the appropriate level of
protection which its sanitary or phytosanitary measure is designed to
achieve.(91) 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. 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.”
(iv) Procedure for the recognition of equivalence
General
81. 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.”(92)
Accelerated procedure
82. 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.”(93)
83. In order to clarify paragraph 5 (and paragraph 6) of the Decision
on Equivalence, the SPS Committee adopted another Decision at its
meeting on 7–8 November 2002 (“the 7–8 November 2002 Decision”).
(94) In the latter 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.”(95)
84. In its 7–8 November 2002 Decision, the SPS Committee requests
the Interim Commission on Phytosanitary Measures (ICPM) to take into
consideration both the Decision on Equivalence and the Decision
clarifying certain aspects of it:
“3. The Committee draws the attention of the Interim Commission on
Phytosanitary Measures (ICPM) to the Decision on Equivalence (G/SPS/19),
and to the above clarification with respect to Paragraph 5 of the
Decision. The Committee requests that the ICPM take into consideration
the Decision and this clarification in its future work on judgement of
equivalence with regard to sanitary measures to address plant pests and
diseases.”(96)
Duty not to interrupt or suspend imports
85. Paragraph 6 of the Decision on
Equivalence(97) 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.”(98)
86. The 7–8 November 2002 Decision of 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).”(99)
87. Also in relation to paragraph 6 of the Decision on Equivalence,
the 7–8 November 2002 Decision of the SPS Committee provides, however,
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.”(100)
88. Paragraph 7 of
G/SPS/19/Add.1
draws the attention of Office
International des Epizooties and ICPM to this further clarification.
(v) Technical assistance
89. 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.”(101)
(vi) International cooperation outside the WTO
90. 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 Office International des Epizooties and in the
framework of the International Plant Protection Convention.
91. Paragraph 10 of the Decision on Equivalence outlines a number of
actions to be taken by the SPS Committee in this regard:
“10. 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 Office International des
Epizooties 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
Office International des Epizooties 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.”(102)
(vii) Notification
92. 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.(103) As regards the
notification procedures, see paragraph 179
below.
(b) Specific programme for the further
implementation of Article 4
93. Paragraph 13 of the 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.(104) At the Doha Ministerial Conference,
Members also instructed the SPS Committee to develop the same specific
programme.(105) At its meeting of 21 March 2002, the SPS Committee adopted
a specific programme for the further implementation of Article
4.(106) The
programme established the timetable and the agendas of the meetings for
the discussion of the Decision on Equivalence.
Footnotes:
1.
G/SPS/W/18 and Corr.1 (Codex); G/SPS/W/21
(OIE) and G/SPS/W/23 (IPPC). See also G/SPS/W/107/Rev.1,
G/SPS/GEN/177, G/SPS/GEN/185, G/SPS/GEN/266, G/SPS/GEN/271,
G/SPS/GEN/282 and G/SPS/GEN/327. back to text
2. Appellate Body Report on
EC — Hormones,
para. 123. back to text
3. Appellate Body Report on
EC — Hormones,
para. 124. back to text
4. See Section XVI. back to text
5.
Panel Report on EC — Hormones (Canada),
para. 8.39; Panel Report on
EC — Hormones (US), para. 8.36. back to text
6. Appellate Body Report on
EC — Hormones,
para. 128. back to text
7. Appellate Body Report on
EC — Hormones,
para. 177. See the discussion on the precautionary principle in EC
— Hormones in para. 3 above. back to text
8. Appellate Body Report on
Japan — Agricultural Products II, paras. 73. back to text
9. Appellate Body Report on
Japan — Agricultural Products II, paras. 74. back to text
10. Appellate Body Report on
Japan — Agricultural Products II, para. 82. back to text
11. Panel Report on Japan — Apples, paras.
8.92–8.93, 8.98. back to text
12. Appellate Body Report on
Japan — Agricultural Products II, para. 84. back to text
13. Panel Report on Japan — Apples, paras.
8.119–8.121. back to text
14. (footnote original) Appellate Body Report on
Japan — Agricultural Products II, para. 84. back to text
15. (footnote original) Appellate Body Report on
Japan — Agricultural Products II, para. 84. back to text
16. Appellate Body Report on
Japan — Apples,
para. 164. back to text
17. Panel Report on Japan — Apples, paras.
8.179, 8.182 and 8.198. back to text
18. Appellate Body Report on
Japan — Agricultural Products II, para. 137. back to text
19. (footnote original) Appellate Body Report on
Japan — Agricultural Products II, para. 137. back to text
20. Panel Report on Japan — Apples, para.
8.106. back to text
21. (footnote original) Appellate Body Report
on US — Wool Shirts and Blouses, p.14, DSR 1997:I, 323, at 335. back to text
22. Appellate Body Report on
Japan — Apples,
paras. 153–156. back to text
23. (footnote original) Panel Report, para.
8.141. The Panel also found that “the importation of immature,
infected apples may only occur as a result of a handling error or an
illegal action”. (Ibid., footnote 2275 to para. 8.121). back to text
24. (footnote original) Panel Report, para.
8.174. back to text
25. (footnote original) Panel Report, para.
8.161. back to text
26. Appellate Body Report on
Japan — Apples,
paras. 158–160. back to text
27. Appellate Body Report on
EC — Hormones,
para.124. See also paras. 2–4 above. back to text
28. Panel Report on
Japan — Agricultural
Products II, para. 8.32. For the same statement made in the context of
Article 5, see paras. 94–95
below. back to text
29. (footnote original) Japan refers to the
following findings of the Panel:
[W]e are of the opinion that the prohibition
of imported apples from any orchard (whether or not it is free of fire
blight) should fire blight be detected within a 500–meter buffer zone
surrounding such orchard is not supported by sufficient scientific
evidence; [and]
[W]e are of the opinion that the requirement
that export orchards be inspected at least three times yearly (at
blossom, fruitlet, and harvest stages) for the presence of fire blight
is not supported by sufficient scientific evidence. (footnotes
omitted)
(Japan’s appellant’s submission, para. 35,
quoting Panel Report, paras. 8.185 and 8.195) back to text
30. Appellate Body Report on
Japan — Agricultural Products II, para. 129; Japan’s appellant’s submission,
paras. 18 and 44. back to text
31. Appellate Body Report on
Japan — Apples,
para. 158 back to text
32. (footnote original) Appellate Body Report
on India — Quantitative Restrictions, para. 142. back to text
33. (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
34. (footnote original) Appellate Body Report
on EC — Asbestos, para. 161. back to text
35. Appellate Body Report on
Japan — Apples,
paras. 166. back to text
36. (footnote original) Appellate Body Report on
EC — Hormones, para. 117. back to text
37. Appellate Body Report on
Japan — Apples,
paras. 165 & 167. back to text
38. (footnote original) Appellate Body Report
in Japan — Agricultural Products II, para. 74. back to text
39. Panel Report on Japan — Apples, para.
8.107. back to text
40. Appellate Body Report on
EC — Hormones,
para. 180. back to text
41. (footnote original) European Communities
— Hormones, supra, footnote 12, para. 194. back to text
42. Appellate Body Report on
Australia — Salmon, para. 138. back to text
43.
Panel Report on EC — Hormones (Canada),
para. 8.99; Panel Report on EC — Hormones (US), para. 8.96. back to text
44. Panel Report on Japan — Apples, para.
8.78. back to text
45. Panel Report on
Japan — Agricultural
Products II, para. 8.48; Panel Report on Japan — Apples, para. 8.200. back to text
46. Appellate Body Report on
Japan — Agricultural Products II, para. 80. back to text
47. Panel Report on
Japan — Agricultural
Products II, para. 8.4. back to text
48. Panel Report on
Australia — Salmon
(Article 21.5 — Canada), para. 7.111. back to text
49. Panel Report on
Australia — Salmon
(Article 21.5 — Canada), paras. 7.113–7–114. back to text
50. Panel Report on
Australia — Salmon
(Article 21.5 — Canada), para. 7.112. back to text
51. Appellate Body Report on
EC — Hormones,
para. 212. back to text
52. Appellate Body Report on
EC — Hormones,
para. 240. back to text
53. Appellate Body Report on
EC — Hormones,
para. 250. See also para. 180, cited in para.
30
above. back to text
54. Appellate Body Report on
Australia — Salmon, para. 178. back to text
55. Panel Report on
Australia — Salmon, para.
8.109. back to text
56. Appellate Body Report on
Australia — Salmon, para. 252. back to text
57.
Panel Report on EC — Hormones (Canada),
paras. 8.41–8.43 and 8.254; Panel Report on EC — Hormones (US),
paras. 8.45–8.47 and 8.251. back to text
58. Appellate Body Report on
EC — Hormones,
para. 250. back to text
59. Panel Report on
Australia — Salmon,
paras. 8.47–8.48. back to text
60. Panel Report on
Australia — Salmon
(Article 21.5 — Canada), para. 7.38. back to text
61. Panel Report on
Japan — Agricultural
Products II, para. 8.16. back to text
62. Appellate Body Report on
EC — Hormones,
para. 177. back to text
63. Appellate Body Report on
EC — Hormones,
para. 165. back to text
64.
Panel Report on EC — Hormones (Canada),
para. 8.72; Panel Report on EC — Hormones (US), para. 8.69. back to text
65. Panel Report on
Australia — Salmon, para.
8.46. back to text
66. Panel Report on
Australia — Salmon, para.
7.11. back to text
67. Panel Report on
EC — Hormones (United
States) paras. 8.86–8.88;
Panel Report on EC — Hormones (Canada) paras. 9.81–9.91. back to text
68. Appellate Body Report on
EC — Hormones,
para. 171. back to text
69. Appellate Body Report on
EC — Hormones,
para. 104. back to text
70. (footnote original) Appellate Body Report on
EC — Hormones, para. 171. back to text
71. Appellate Body Report on
EC — Hormones,
paras. 170–172. back to text
72.
Panel Report on EC — Hormones (Canada),
para. 8.75; Panel Report on EC — Hormones (US), para. 8.72. back to text
73. Appellate Body Report on
EC — Hormones,
para. 163. back to text
74. Appellate Body Report on
EC — Hormones,
para. 164. back to text
75. Appellate Body Report on
EC — Hormones,
para. 102. See also para. 170 of the Appellate Body report and
para. 59
above of this Chapter. back to text
76. Appellate Body Report on
EC — Hormones
para. 170. back to text
77. Panel Report on
Australia — Salmon, para.
8.180. back to text
78. Appellate Body Report on
EC — Hormones,
para. 172. back to text
79. Appellate Body Report on
EC — Hormones,
para. 173 back to text
80. Appellate Body Report on
EC — Hormones,
para. 124. back to text
81.
Panel Report on EC — Hormones (Canada),
para. 8.76; Panel Report on
EC — Hormones (US), para. 8.73. back to text
82. Appellate Body Report on
EC — Hormones,
para. 168. back to text
83. Appellate Body Report on
EC — Hormones,
paras. 173, 175–176. back to text
84. Appellate Body Report on
Japan — Agricultural Products II, para. 79. back to text
85. Appellate Body Report on
EC — Hormones,
para. 177. back to text
86. G/SPS/19. back to text
87. G/SPS/19/Add.1 and Add.2. back to text
88. G/SPS/20. back to text
89. G/SPS/19/Add.3. back to text
90. Product-related infrastructure and
programmes is in reference to testing, inspection and other relevant
requirements specific to product safety. back to text
91. 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
92. G/SPS/19, paras. 1–4. back to text
93. G/SPS/19, para. 5. back to text
94. G/SPS/19/Add.1, paras. 1–4 and 7. back to text
95.
G/SPS/19/Add.1, para. 2. back to text
96.
G/SPS/19/Add.1, para. 3. back to text
97. See para. 79. back to text
98. G/SPS/19,
para. 6. back to text
99.
G/SPS/19/Add.1, para. 5. back to text
100. G/SPS/19/Add.1, para. 6. back to text
101. G/SPS/19, para. 8. back to text
102. G/SPS/19
paras. 9 and 10. back to text
103. G/SPS/19, para. 12. back to text
104. G/SPS/19/para.
13. back to text
105. WT/MIN(01)/17, para. 3.3. back to text
106. G/SPS/20. back to text
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