Implementation — Dispute Settlement

Fire blight — the findings at a glance

Measure at issue: Japan's set of requirements on apples from the US, including that they come from a fire blight free orchard, surrounded by a buffer zone, undergo at least three annual inspections, chlorine treatment, etc. in order to prevent the entry of Erwinia amylovora, the bacteria which causes fire blight, into Japan. The US claimed that there was no evidence that mature, symptomless apples could serve as a pathway for the disease.

Panel findings:

• Japan's measure, the set of requirements taken as a whole, violated Article 2.2 because it was maintained without sufficient scientific evidence that apple fruit could serve as a pathway for the entry, establishment or spread of fire blight. The Panel considered both the risk from mature, symptomless apples, the US export product, and the risk that something other than mature, symptomless apples might be inadvertently or illegally shipped.
   
• the exception provided in Article 5.7 did not apply. This was not a situation in which sufficient scientific evidence did not exist, rather, there was a wealth of scientific evidence regarding fire blight but it did not support Japan's measure.
   
• Japan's measure violated Article 5.1 because it was not based on a risk assessment appropriate to the circumstances. Japan's pest risk assessment was not sufficiently specific regarding the risks of entry, spread or establishment through imported apples as opposed to other possible pathways, nor did the risk assessment evaluate the likelihood of entry, establishment or spread through apples. Furthermore, Japan's risk assessment failed to evaluate the risk according to the SPS measures which might be applied, but rather considered only the existing measures.
   
• the Panel exercised judicial economy and did not rule on an alleged claim that the measure was more trade restrictive than necessary in violation of Article 5.6. The Panel found that the US had failed to make a prima facie argument that the measure had not been notified and was in violation of Article 7 and Annex B.
    

Appellate Body findings:

• The Appellate Body upheld the Panel's findings with respect to violations of Article 2.2 and 5.1, as well as with regard to the inapplicability of Article 5.7 in this situation. The Panel's findings on Article 7 and Annex B were not appealed.
   
• In addition, the Appellate Body ruled that the Panel had the authority to make findings and draw conclusions with respect to all apple fruit from the United States, and not just with respect to mature, symptomless apples as the United States claimed.
   
• The Appellate Body furthermore rejected an argument that the Panel had failed to objectively assess the evidence before it regarding the likelihood of completion of the last stage of the pathway.
   

Article 21.5 (Compliance) Panel Findings:

• Japan breached Article 2.2 of the SPS Agreement by maintaining the compliance measure at issue without sufficient scientific evidence;
   
• Japan violated Article 5.1 of the SPS Agreement because the phytosanitary measure was not “based on an assessment, as appropriate to the circumstances, of the risk to [...] plant life or health” in Japan because Japan relied on uncorroborated new studies that do not support the conclusion that imported apples could spread fire blight; and
   
• If the United States only exported mature, symptomless apples, the alternative measure proposed by the United States would meet the requirements of Article 5.6 as a substitute to Japan's current measure.