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WTO ANALYTICAL INDEX: DISPUTE SETTLEMENT UNDERSTANDING Agreement on Sanitary and Phytosanitary Measures |
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> Preamble |
Article 6: Adaptation to Regional Conditions, Including Pest- or Disease-Free Areas and Areas of Low Pest or Disease Prevalence 1. Members shall ensure that their sanitary or phytosanitary measures are adapted to the sanitary or phytosanitary characteristics of the area - whether all of a country, part of a country, or all or parts of several countries - from which the product originated and to which the product is destined. In assessing the sanitary or phytosanitary characteristics of a region, Members shall take into account, inter alia, the level of prevalence of specific diseases or pests, the existence of eradication or control programmes, and appropriate criteria or guidelines which may be developed by the relevant international organizations.
2. Members shall, in particular, recognize the concepts of pest- or disease-free areas and areas of low pest or disease prevalence. Determination of such areas shall be based on factors such as geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls.
3. Exporting Members claiming that areas within their territories are pest- or disease-free areas or areas of low pest or disease prevalence shall provide the necessary evidence thereof in order to objectively demonstrate to the importing Member that such areas are, and are likely to remain, pest- or disease-free areas or areas of low pest or disease prevalence, respectively. For this purpose, reasonable access shall be given, upon request, to the importing Member for inspection, testing and other relevant procedures.
147. In Australia - Salmon, Australia argued that the Panel had exceeded its terms of reference by referring to Article 6.1; Australia claimed that the Panel had made an implicit finding of inconsistency of the Australian measure with Article 6, although the Canadian request for the establishment of a panel had not included a claim under Article 6. The Appellate Body rejected the Australian argument: "Canada's request for the establishment of a panel did not include a claim of violation of Article 6 of the SPS Agreement. The Panel's terms of reference are determined by Canada's request for the establishment of a panel. We, therefore, agree with Australia that Article 6 of the SPS Agreement is not within the terms of reference of the Panel. However, we disagree with Australia that the Panel exceeded its terms of reference in quoting Article 6.1 in a footnote, attached to a paragraph in which the Panel examined a violation of Article 5.5. More precisely, we reject Australia's contention that the Panel, by merely referring to Article 6.1 in a footnote, made an implied finding of inconsistency with Article 6. In our view, the statement of the Panel with regard to Article 6, in footnote 430 of its Report, is similar in character to the statement of the panel in United States - Shirts and Blouses, with regard to the powers of the Textile Monitoring Body ('TMB'). India appealed from this statement, but we found it to be 'purely a descriptive and gratuitous comment providing background concerning the Panel's understanding of how the TMB functions'.(183) We did not consider that statement to be 'a legal finding or conclusion' which the Appellate Body 'may uphold, modify or reverse'. Likewise, we consider that in this case, the Panel's statement in footnote 430 of its Report regarding Article 6.1 of the SPS Agreement is a purely gratuitous comment and not 'a legal finding or conclusion'. By making such a comment, the Panel did not exceed its terms of reference."(184)
VIII. Article 7 back to top Article 7: Transparency Members shall notify changes in their sanitary or phytosanitary measures and shall provide information on their sanitary or phytosanitary measures in accordance with the provisions of Annex B.(185) (a) Recommended notification procedures 148. At its meeting of 29-30 March 1995, the SPS Committee adopted notification procedures recommended by the informal contact group, subject to certain conditions.(186) At its meeting of 29-30 May 1996, the SPS Committee revised the notification procedures to be followed for notifications required under paragraphs 5 and 6 of Annex B.(187) Further, at its meeting of 10-11 March 1999, the SPS Committee again revised the notification procedures.(188) The last revision of the notification procedures was carried out by the SPS Committee at its meeting of 2 April 2002.(189) 149. In November 2000, a handbook entitled "How to apply the Transparency Provisions of the SPS Agreement" was prepared by the Secretariat.(190) The Handbook was further revised in September 2002. 150. At its meeting of 26 October 2001, the SPS Committee adopted the following provision relating to the notification of the conclusion of equivalence agreements between Members further to the Decision on Equivalence (see paragraphs 52-64 above): "The Committee on Sanitary and Phytosanitary Measures shall revise its recommended notification procedures to provide for the notification of the conclusion of agreements between Members which recognize the equivalence of sanitary and phytosanitary measures.(191) Furthermore, the procedures shall reinforce the existing obligation in paragraph 3(d) of Annex B of the Agreement on the Application of Sanitary and Phytosanitary Measures for national Enquiry Points to provide information, upon request, on the participation in any bilateral or multilateral equivalence agreements of the Member concerned."(192) (b) "significant effect on trade of other Members" 151. The notification procedures adopted and revised by the SPS Committee states as follows on the term "significant effect on trade of other Members'": "For the purposes of Annex B, paragraphs 5 and 6 in the SPS Agreement, the concept of 'significant effect on trade of other Members' may refer to the effect on trade:
When assessing whether the sanitary or phytosanitary regulation may have a significant effect on trade, the Member concerned should take into consideration, using relevant information which is available, such elements as the value or other importance of imports in respect of the importing and/or exporting Members concerned, whether from other Members individually or collectively, the potential development of such imports, and difficulties for producers in other Members to comply with the proposed sanitary or phytosanitary regulations. The concept of a significant effect on trade of other Members should include both import-enhancing and import-reducing effects on the trade of other Members, as long as such effects are significant."(193) 152. With respect to Annex B, see Section XVII.B below.
IX. Article 8 back to top Article 8: Control, Inspection and Approval Procedures Members shall observe the provisions of Annex C(194) in the operation of control, inspection and approval procedures, including national systems for approving the use of additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs, and otherwise ensure that their procedures are not inconsistent with the provisions of this Agreement. 153. The Panel on Australia - Salmon discussed paragraph 1(c) of Annex C. See paragraph 198 below.
X. Article 9 back to top Article 9: Technical Assistance 1. Members agree to facilitate the provision of technical assistance to other Members, especially developing country Members, either bilaterally or through the appropriate international organizations. Such assistance may be, inter alia, in the areas of processing technologies, research and infrastructure, including in the establishment of national regulatory bodies, and may take the form of advice, credits, donations and grants, including for the purpose of seeking technical expertise, training and equipment to allow such countries to adjust to, and comply with, sanitary or phytosanitary measures necessary to achieve the appropriate level of sanitary or phytosanitary protection in their export markets.
2. Where substantial investments are required in order for an exporting developing country Member to fulfil the sanitary or phytosanitary requirements of an importing Member, the latter shall consider providing such technical assistance as will permit the developing country Member to maintain and expand its market access opportunities for the product involved. No jurisprudence or decision of a competent WTO body.
XI. Article 10 back to top Article 10: Special and Differential Treatment 1. In the preparation and application of sanitary or phytosanitary measures, Members shall take account of the special needs of developing country Members, and in particular of the least-developed country Members.
2. Where the appropriate level of sanitary or phytosanitary protection allows scope for the phased introduction of new sanitary or phytosanitary measures, longer time-frames for compliance should be accorded on products of interest to developing country Members so as to maintain opportunities for their exports.
3. With a view to ensuring that developing country Members are able to comply with the provisions of this Agreement, the Committee is enabled to grant to such countries, upon request, specified, time-limited exceptions in whole or in part from obligations under this Agreement, taking into account their financial, trade and development needs.
4. Members should encourage and facilitate the active participation of developing country Members in the relevant international organizations. 154. At the Doha Ministerial Conference, Members resolved to "provide, to the extent possible, the financial and technical assistance necessary to enable least-developed countries to respond adequately to the introduction of any new SPS measures which may have significant negative effects on their trade."(195)) 155. At the same Ministerial Conference, Members also decided to ensure a level of technical assistance necessary to enable least-developed countries to respond to the special problems they face in implementing the SPS Agreement.(196) 156. At the Doha Ministerial Conference, Members adopted a decision in order to establish a time-frame for the gradual introduction of new sanitary and phytosanitary measures: "Where the appropriate level of sanitary and phytosanitary protection allows scope for the phased introduction of new sanitary and phytosanitary measures, the phrase "longer time-frame for compliance" referred to in Article 10.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures, shall be understood to mean normally a period of not less than 6 months. ..."(197) 157. At the same Ministerial Conference, Members adopted a decision that established a process to be applied in cases where the phased introduction of a new measure may not be possible: "Where the appropriate level of sanitary and phytosanitary protection does not allow scope for the phased introduction of a new measure, but specific problems are identified by a Member, the Member applying the measure shall upon request enter into consultations with the country with a view to finding a mutually satisfactory solution to the problem while continuing to achieve the importing Member's appropriate level of protection."(198)
XII. Article 11 back to top Article 11: Consultations and Dispute Settlement 1. The provisions of Articles XXII and XXIII of GATT 1994 as elaborated and applied by the Dispute Settlement Understanding shall apply to consultations and the settlement of disputes under this Agreement, except as otherwise specifically provided herein.
2. In a dispute under this Agreement involving scientific or technical issues, a panel should seek advice from experts chosen by the panel in consultation with the parties to the dispute. To this end, the panel may, when it deems it appropriate, establish an advisory technical experts group, or consult the relevant international organizations, at the request of either party to the dispute or on its own initiative.
3. Nothing in this Agreement shall impair the rights of Members under other international agreements, including the right to resort to the good offices or dispute settlement mechanisms of other international organizations or established under any international agreement. 158. The following table lists the disputes in which panel and/or Appellate Body reports have been adopted where the provisions of the SPS Agreement were invoked:
(a) Appointment of scientific experts advising the panel (i) Individual experts or expert review groups 159. In EC - Hormones, the Appellate Body agreed with the Panel's decision to hear from individual scientific experts rather than to establish an expert review group(199), and stated as follows: "[I]n disputes involving scientific or technical issues, neither Article 11.2 of the SPS Agreement, nor Article 13 of the DSU prevents panels from consulting with individual experts. Rather, both the SPS Agreement and the DSU leave to the sound discretion of a panel the determination of whether the establishment of an expert review group is necessary or appropriate."(200) 160. On the procedures followed by the Panel on EC - Hormones in appointing experts, the Appellate Body noted the following: "The rules and procedures set forth in Appendix 4 of the DSU apply in situations in which expert review groups have been established. However, this is not the situation in this particular case. Consequently, once the panel has decided to request the opinion of individual scientific experts, there is no legal obstacle to the panel drawing up, in consultation with the parties to the dispute, ad hoc rules for those particular proceedings."(201) 161. The procedures for the selection of scientific experts were described by the Panel on EC - Hormones, paragraphs 6.6-6.7, the Panel on Australia - Salmon, paragraphs 6.2-6.3, the Panel on Japan - Agricultural Products II, paragraph 6.2 and the Panel on Australia - Salmon (Article 21.5 - Canada), paragraph 6.2. 162. In EC - Hormones, the Panel gave each party the right to nominate one scientific expert: "The parties were invited to nominate one expert each, not necessarily from the list provided by the Panel. The Panel then selected three additional individuals from the list taking into account the comments of the parties."(202) 163. In contrast, in Australia - Salmon, the Panel did not give the parties the right to nominate any expert.(203) Also in Japan - Agricultural Products II and Australia - Salmon (Article 21.5 - Canada), the Panels proceeded in similar fashion.(204) (b) Method of obtaining advice from scientific experts 164. The procedures for obtaining advice from scientific experts were described by the Panels in EC - Hormones(205); Australia - Salmon(206); Japan - Agricultural Products II(207); and Australia - Salmon (Article 21.5 - Canada).(208) (i) Role of scientific experts advising the panel 165. In EC - Hormones, with respect to the role of scientific experts, the Panel noted as follows: "It is of particular importance that we made clear to the experts advising the Panel that we were not seeking a consensus position among the experts but wanted to hear all views."(209)
XIII. Article 12 back to top Article 12: Administration 1. A Committee on Sanitary and Phytosanitary Measures is hereby established to provide a regular forum for consultations. It shall carry out the functions necessary to implement the provisions of this Agreement and the furtherance of its objectives, in particular with respect to harmonization. The Committee shall reach its decisions by consensus.
2. The Committee shall encourage and facilitate ad hoc consultations or negotiations among Members on specific sanitary or phytosanitary issues. The Committee shall encourage the use of international standards, guidelines or recommendations by all Members and, in this regard, shall sponsor technical consultation and study with the objective of increasing coordination and integration between international and national systems and approaches for approving the use of food additives or for establishing tolerances for contaminants in foods, beverages or feedstuffs.
3. The Committee shall maintain close contact with the relevant international organizations in the field of sanitary and phytosanitary protection, especially with the Codex Alimentarius Commission, the International Office of Epizootics, and the Secretariat of the International Plant Protection Convention, with the objective of securing the best available scientific and technical advice for the administration of this Agreement and in order to ensure that unnecessary duplication of effort is avoided.
4. The Committee shall develop a procedure to monitor the process of international harmonization and the use of international standards, guidelines or recommendations. For this purpose, the Committee should, in conjunction with the relevant international organizations, establish a list of international standards, guidelines or recommendations relating to sanitary or phytosanitary measures which the Committee determines to have a major trade impact. The list should include an indication by Members of those international standards, guidelines or recommendations which they apply as conditions for import or on the basis of which imported products conforming to these standards can enjoy access to their markets. For those cases in which a Member does not apply an international standard, guideline or recommendation as a condition for import, the Member should provide an indication of the reason therefor, and, in particular, whether it considers that the standard is not stringent enough to provide the appropriate level of sanitary or phytosanitary protection. If a Member revises its position, following its indication of the use of a standard, guideline or recommendation as a condition for import, it should provide an explanation for its change and so inform the Secretariat as well as the relevant international organizations, unless such notification and explanation is given according to the procedures of Annex B.
5. In order to avoid unnecessary duplication, the Committee may decide, as appropriate, to use the information generated by the procedures, particularly for notification, which are in operation in the relevant international organizations.
6. The Committee may, on the basis of an initiative from one of the Members, through appropriate channels invite the relevant international organizations or their subsidiary bodies to examine specific matters with respect to a particular standard, guideline or recommendation, including the basis of explanations for non-use given according to paragraph 4.
7. The Committee shall review the operation and implementation of this Agreement three years after the date of entry into force of the WTO Agreement, and thereafter as the need arises. Where appropriate, the Committee may submit to the Council for Trade in Goods proposals to amend the text of this Agreement having regard, inter alia, to the experience gained in its implementation. 166. At its meeting of 19-20 March 1997, the SPS Committee agreed that the Rules of Procedure for meetings of the General Council(210) shall apply mutatis mutandis for its meetings, except as otherwise provided in the Working Procedures.(211) 167. With reference to paragraph 3, the WTO and the OIE agreed on a cooperation agreement on 4 May 1998.(212) 168. The list of observers at meetings of the SPS Committee is as follows: (a) International Intergovernmental Organizations having observer status on a regular basis
(b) International Intergovernmental Organizations having observer status on an ad hoc (meeting-by-meeting) basis
(c) International Intergovernmental Organizations whose request is pending
169. As regards cooperation in accordance with the Decision on Equivalence, see paragraphs 62-63 above. 170. At its meeting of 15-16 October 1997, the SPS Committee adopted provisional procedures to monitor the use of international standards.(213) The Committee also agreed to review the operation of the provisional monitoring procedure 18 months after its implementation, with a view to deciding at that time whether to continue with the same procedure, amend it or develop another one.(214) 171. At its meeting of 8 July 1999, the SPS Committee decided to extend the provisional procedure to monitor the use of international standards for a further 24 months.(215) The Committee also agreed to review the operation of the provisional procedure by July 2001, with a view to then deciding then whether to continue with the same procedure, amend it or develop another one. On 6 October 2000, the SPS Committee adopted the second annual report on the Procedure to Monitor the Process of International Harmonization.(216) 172. At its meeting of 19 July 2001, the SPS Committee decided to extend the provisional procedure to monitor the use of international standards for a further 24 months.(217) The SPS Committee also adopted a decision to review the operation of the provisional procedure by July 2003, in order to enable them to assess whether to continue with the same procedure, amend it or develop another one.(218) The Committee also encouraged Members to make use of this procedure.(219) In September 2001, the SPS Committee adopted a third annual report on the Procedure for Monitoring the Process of International Harmonization.(220) In June 2002, the SPS Committee adopted a fourth annual report on the Procedures for Monitoring the Process of International Harmonization.(221) 173. At its meeting on 15-16 October 1997, the SPS Committee agreed on procedures for conducting the review of the implementation and operation of the SPS Agreement.(222) 174. At the Doha Ministerial Conference, Members adopted a deadline for reviewing the operation and implementation of the SPS Agreement: "Pursuant to the provisions of Article 12.7 of the Agreement on the Application of Sanitary and Phytosanitary Measures, the Committee on Sanitary and Phytosanitary Measures is instructed to review the operation and implementation of the Agreement on Sanitary and Phytosanitary Measures at least once every four years."(223)
XIV. General issues back to top (a) Allocation of burden of proof 175. In EC - Hormones, the Appellate Body allocated the burden of proof as follows: "The initial burden lies on the complaining party, which must establish a prima facie case of inconsistency with a particular provision of the SPS Agreement on the part of the defending party, or more precisely, of its SPS measure or measures complained about. When that prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency."(224) 176. 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: "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."(225) 177. In Japan - Agricultural Products II, with respect to the issue of the burden of proof, the Appellate Body reversed the Panel's findings with respect to Article 5.6, holding that the Panel could not have made the finding at issue, because the United States as the complaining party had not made a relevant claim and, a fortiori, had not established a prima facie case. The Appellate Body then stressed that the investigative authority of a panel did not stretch so far as to "make the case for a complaining party": "Pursuant to the rules on burden of proof set out above, we consider that it was for the United States [complainant] to establish a prima facie case that there is an alternative measure that meets all three elements under Article 5.6 in order to establish a prima facie case of inconsistency with Article 5.6. Since the United States did not even claim before the Panel that the 'determination of sorption levels' is an alternative measure which meets the three elements under Article 5.6, we are of the opinion that the United States did not establish a prima facie case that the 'determination of sorption levels' is an alternative measure within the meaning of Article 5.6. ... 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. A panel is entitled to seek information and advice from experts and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of the SPS Agreement, to help it to understand and evaluate the evidence submitted and the arguments made by the parties, but not to make the case for a complaining party."(226) 178. In response to a comment by Japan on the interim report, the Panel on Japan - Agricultural Products II, in a finding not addressed by the Appellate Body, stressed that "the issue of burden of proof in a WTO dispute settlement proceeding ... is different and should be distinguished from what a Member requires from an exporting country before it will approve the import of that country's products".(227) (b) Concept of a prima facie case 179. In EC - Hormones, the Appellate Body specified what is meant by the term "prima facie case": "It is also well to remember that a prima facie case is one which, in the absence of effective refutation by the defending party, requires a panel, as a matter of law, to rule in favour of the complaining party presenting the prima facie case."(228) 180. In Australia - Salmon, with respect to the evaluation of evidence, the Appellate Body stated: "Panels ... are not required to accord to factual evidence of the parties the same meaning and weight as do the parties".(229) 181. With respect to the issue of burden of proof in general, see Chapter on DSU, paragraphs 263-264. 182. With respect to the standard of review for fact-finding by panels, the Appellate Body in EC - Hormones found that this standard was neither a de novo review nor "total deference", but rather, as set forth in Article 11 of the DSU, the "objective assessment of the facts": "The standard of review appropriately applicable in proceedings under the SPS Agreement, of course, must reflect the balance established in that Agreement between the jurisdictional competences conceded by the Members to the WTO and the jurisdictional competences retained by the Members for themselves. To adopt a standard of review not clearly rooted in the text of the SPS Agreement itself, may well amount to changing that finely drawn balance; and neither a panel nor the Appellate Body is authorized to do that.
... In our view, Article 11 of the DSU bears directly on this matter and, in effect, articulates with great succinctness but with sufficient clarity the appropriate standard of review for panels in respect of both the ascertainment of facts and the legal characterization of such facts under the relevant agreements.
So far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor 'total deference', but rather the 'objective assessment of the facts'. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, 'total deference to the findings of the national authorities', it has been well said, 'could not ensure an 'objective assessment' as foreseen by Article 11 of the DSU'."(230) 183. Also in EC - Hormones, the Appellate Body rejected the argument of the European Communities that the standard of review set out in Article 17.6(i) of the Anti-Dumping Agreement is applicable to the SPS Agreement: "[T]he SPS Agreement itself is silent on the matter of an appropriate standard of review for panels deciding upon SPS measures of a Member. Nor are there provisions in the DSU or any of the covered agreements (other than the Anti-Dumping Agreement) prescribing a particular standard of review ... We find no indication in the SPS Agreement of an intent on the part of the Members to adopt or incorporate into that Agreement the standard set out in Article 17.6(i) of the Anti-Dumping Agreement. Textually, Article 17.6(i) is specific to the Anti-Dumping Agreement."(231) 184. With respect to the legal standard of review to be applied by panels in the context of the SPS Agreement, the Appellate Body held: "In so far as legal questions are concerned - that is, consistency or inconsistency of a Member's measure with the provisions of the applicable agreement - a standard not found in the text of the SPS Agreement itself cannot absolve a panel (or the Appellate Body) from the duty to apply the customary rules of interpretation of public international law ... Nevertheless, it is appropriate to stress that here again Article 11 of the DSU is directly on point, requiring a panel to "make an objective assessment of the matter before it, including an objective assessment of the facts of the case and the applicability of and conformity with the relevant covered agreements."(232)
XV. Relationship with other WTO agreements back to top 185. The EC - Hormones Panels, referring to Article 1.5 of the TBT Agreement(233), stated as follows: "Since the measures in dispute are sanitary measures, we find that the TBT Agreement is not applicable to this dispute."(234) 186. In EC - Hormones, the European Communities submitted that "the 'substantive' provisions of the SPS Agreement can only be addressed if recourse is made to GATT Article XX(b), i.e., if, and only if, a violation of another provision of GATT is first established". The Panel, in a finding not addressed by the Appellate Body, rejected this argument, indicating as follows: "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. There are no additional requirements. The SPS Agreement contains, in particular, no explicit requirement of a prior violation of a provision of GATT which would govern the applicability of the SPS Agreement, as asserted by the European Communities."(235) 187. The Panel on EC - Hormones then added, with respect to the relationship between the SPS Agreement and Article XX(b) of GATT 1994, that "[m]any provisions of the SPS Agreement impose 'substantive' obligations which go significantly beyond and are additional to the requirements for invocation of Article XX(b)": "[W]e find the EC claim that the SPS Agreement does not impose 'substantive' obligations additional to those already contained in Article XX(b) of GATT not to be persuasive. It is clear that some provisions of the SPS Agreement elaborate on provisions already contained in GATT, in particular Article XX(b). The final preambular paragraph of the SPS Agreement provides, indeed, that the Members desired 'to elaborate rules for the application of the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b)'. Examples of such rules are, arguably, some of the obligations contained in Article 2 of the SPS Agreement. However, on this basis alone we cannot conclude that the SPS Agreement only applies, as Article XX(b) of GATT does, if, and only if, a prior violation of a GATT provision has been established. Many provisions of the SPS Agreement impose 'substantive' obligations which go significantly beyond and are additional to the requirements for invocation of Article XX(b). These obligations are, inter alia, imposed to 'further the use of harmonized sanitary and phytosanitary measures between Members'(236) and to 'improve the human health, animal health and phytosanitary situation in all Members'.(237) They are not imposed, as is the case of the obligations imposed by Article XX(b) of GATT, to justify a violation of another GATT obligation (such as a violation of the non-discrimination obligations of Articles I or III)."(238) 188. The Panel on EC - Hormones, in a finding not reviewed by the Appellate Body decided that both the SPS Agreement and GATT 1994 applied to the European Communities' measure at issue, and then addressed the question of which of the two Agreements to examine first: "The SPS Agreement specifically addresses the type of measure in dispute. If we were to examine GATT first, we would in any event need to revert to the SPS Agreement: if a violation of GATT were found, we would need to consider whether Article XX(b) could be invoked and would then necessarily need to examine the SPS Agreement; if, on the other hand, no GATT violation were found, we would still need to examine the consistency of the measure with the SPS Agreement since nowhere is consistency with GATT presumed to be consistency with the SPS Agreement. For these reasons, and in order to conduct our consideration of this dispute in the most efficient manner, we shall first examine the claims raised under the SPS Agreement."(239) 189. The Panel on Australia - Salmon also dealt with the question whether to address first the provisions of the GATT 1994 or those of the SPS Agreement: "Canada recognizes that the SPS Agreement provides for obligations additional to those contained in GATT 1994, but, nevertheless, first addresses its claim under Article XI of GATT 1994. Australia invokes Article 2.4 of the SPS Agreement, which presumes GATT consistency for measures found to be in conformity with the SPS Agreement, to first address the SPS Agreement. We note, moreover, that (1) the SPS Agreement specifically addresses the type of measure in dispute, and (2) we will in any case need to examine the SPS Agreement, whether or not we find a GATT violation (since GATT consistency is nowhere presumed to constitute consistency with the SPS Agreement). In order to conduct our consideration of this dispute in the most efficient manner, we shall, therefore, first address the claims made by Canada under the SPS Agreement before addressing those put forward under GATT 1994."(240) 190. In EC - Hormones, exercising judicial economy, the Panel stated: "Since we have found that the EC measures in dispute are inconsistent with the requirements of the SPS Agreement, we see no need to further examine whether the EC measures in dispute are also inconsistent with Articles III or XI of GATT."(241) Also, in Australia - Salmon, the Panel stated: "Since we have found that the measure in dispute is inconsistent with the requirements of the SPS Agreement, we see no need to further examine whether it is also inconsistent with Article XI of GATT 1994."(242) The Appellate Body did not address either of these two findings.
XVI. Annex A back to top Annex A: Definitions(4) (footnote original) 4 For the purpose of these definitions, "animal" includes fish and wild fauna; "plant" includes forests and wild flora; "pests" include weeds; and "contaminants" include pesticide and veterinary drug residues and extraneous matter.
1. Sanitary or phytosanitary measure - Any measure applied:
(a) to protect animal or plant life or health within the territory of the Member from risks arising from the entry, establishment or spread of pests, diseases, disease-carrying organisms or disease-causing organisms;
(b) to protect human or animal life or health within the territory of the Member from risks arising from additives, contaminants, toxins or disease-causing organisms in foods, beverages or feedstuffs;
(c) to protect human life or health within the territory of the Member from risks arising from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests; or
(d) to prevent or limit other damage within the territory of the Member from the entry, establishment or spread of pests. Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety. 2. Harmonization - The establishment, recognition and application of common sanitary and phytosanitary measures by different Members. 3. International standards, guidelines and recommendations (a) for food safety, the standards, guidelines and recommendations established by the Codex Alimentarius Commission relating to food additives, veterinary drug and pesticide residues, contaminants, methods of analysis and sampling, and codes and guidelines of hygienic practice;
(b) for animal health and zoonoses, the standards, guidelines and recommendations developed under the auspices of the International Office of Epizootics;
(c) for plant health, the international standards, guidelines and recommendations developed under the auspices of the Secretariat of the International Plant Protection Convention in cooperation with regional organizations operating within the framework of the International Plant Protection Convention; and
(d) for matters not covered by the above organizations, appropriate standards, guidelines and recommendations promulgated by other relevant international organizations open for membership to all Members, as identified by the Committee. 4. Risk assessment - The evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an importing Member according to the sanitary or phytosanitary measures which might be applied, and of the associated potential biological and economic consequences; or the evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, contaminants, toxins or disease-causing organisms in food, beverages or feedstuffs. 5. Appropriate level of sanitary or phytosanitary protection - The level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory. NOTE: Many Members otherwise refer to this concept as the "acceptable level of risk". 6. Pest- or disease-free area - An area, whether all of a country, part of a country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest or disease does not occur. NOTE: A pest- or disease-free area may surround, be surrounded by, or be adjacent to an area - whether within part of a country or in a geographic region which includes parts of or all of several countries -in which a specific pest or disease is known to occur but is subject to regional control measures such as the establishment of protection, surveillance and buffer zones which will confine or eradicate the pest or disease in question. 7. Area of low pest or disease prevalence - An area, whether all of a country, part of a country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest or disease occurs at low levels and which is subject to effective surveillance, control or eradication measures. 191. With respect to the relationship between paragraphs 1(a) and 1(b), see paragraph 8 above. 192. With respect to the two definitions of risk under paragraph 4, see paragraph 68 above. 193. With respect to the three elements of a risk assessment, pursuant to paragraph 4 of Annex A, see paragraph 70 above. See also paragraphs 72-73 above.
XVII. Annex B back to top Annex B: Transparency of sanitary and phytosanitary regulations Publication of regulations
1. Members shall ensure that all sanitary and phytosanitary regulations which have been adopted are published promptly in such a manner as to enable interested Members to become acquainted with them.
(footnote original) 5 Sanitary and phytosanitary measures such as laws, decrees or ordinances which are applicable generally.
2. Except in urgent circumstances, Members shall allow a reasonable interval between the publication of a sanitary or phytosanitary regulation and its entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, to adapt their products and methods of production to the requirements of the importing Member.
Enquiry points
3. Each Member shall ensure that one enquiry point exists which is responsible for the provision of answers to all reasonable questions from interested Members as well as for the provision of relevant documents regarding:
(a) any sanitary or phytosanitary regulations adopted or proposed within its territory;
(b) any control and inspection procedures, production and quarantine treatment, pesticide tolerance and food additive approval procedures, which are operated within its territory;
(c) risk assessment procedures, factors taken into consideration, as well as the determination of the appropriate level of sanitary or phytosanitary protection;
(d) the membership and participation of the Member, or of relevant bodies within its territory, in international and regional sanitary and phytosanitary organizations and systems, as well as in bilateral and multilateral agreements and arrangements within the scope of this Agreement, and the texts of such agreements and arrangements.
4. Members shall ensure that where copies of documents are requested by interested Members, they are supplied at the same price (if any), apart from the cost of delivery, as to the nationals(6) of the Member concerned.
(footnote original) 6 When "nationals" are referred to in this Agreement, the term shall be deemed, in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.
Notification procedures
5. Whenever an international standard, guideline or recommendation does not exist or the content of a proposed sanitary or phytosanitary regulation is not substantially the same as the content of an international standard, guideline or recommendation, and if the regulation may have a significant effect on trade of other Members, Members shall:
(a) publish a notice at an early stage in such a manner as to enable interested Members to become acquainted with the proposal to introduce a particular regulation;
(b) notify other Members, through the Secretariat, of the products to be covered by the regulation together with a brief indication of the objective and rationale of the proposed regulation. Such notifications shall take place at an early stage, when amendments can still be introduced and comments taken into account;
(c) provide upon request to other Members copies of the proposed regulation and, whenever possible, identify the parts which in substance deviate from international standards, guidelines or recommendations;
(d) without discrimination, allow reasonable time for other Members to make comments in writing, discuss these comments upon request, and take the comments and the results of the discussions into account.
6. However, where urgent problems of health protection arise or threaten to arise for a Member, that Member may omit such of the steps enumerated in paragraph 5 of this Annex as it finds necessary, provided that the Member:
(a) immediately notifies other Members, through the Secretariat, of the particular regulation and the products covered, with a brief indication of the objective and the rationale of the regulation, including the nature of the urgent problem(s);
(b) provides, upon request, copies of the regulation to other Members;
(c) allows other Members to make comments in writing, discusses these comments upon request, and takes the comments and the results of the discussions into account.
7. Notifications to the Secretariat shall be in English, French or Spanish.
8. Developed country Members shall, if requested by other Members, provide copies of the documents or, in case of voluminous documents, summaries of the documents covered by a specific notification in English, French or Spanish.
9. The Secretariat shall promptly circulate copies of the notification to all Members and interested international organizations and draw the attention of developing country Members to any notifications relating to products of particular interest to them.
10. Members shall designate a single central government authority as responsible for the implementation, on the national level, of the provisions concerning notification procedures according to paragraphs 5, 6, 7 and 8 of this Annex.
General reservations
11. Nothing in this Agreement shall be construed as requiring:
(a) the provision of particulars or copies of drafts or the publication of texts other than in the language of the Member except as stated in paragraph 8 of this Annex; or
(b) Members to disclose confidential information which would impede enforcement of sanitary or phytosanitary legislation or which would prejudice the legitimate commercial interests of particular enterprises.
1. Publication requirements (paragraphs 1 and 2) 194. In Japan - Agricultural Products II, with reference to the footnote to paragraph 1 of Annex B, the Appellate Body held that the list of instruments contained therein was not exhaustive in nature and referred to the object and purpose of paragraph 1 of Annex B: "We consider that the list of instruments contained in the footnote to paragraph 1 of Annex B is, as is indicated by the words 'such as', not exhaustive in nature. The scope of application of the publication requirement is not limited to 'laws, decrees or ordinances', but also includes, in our opinion, other instruments which are applicable generally and are similar in character to the instruments explicitly referred to in the illustrative list of the footnote to paragraph 1 of Annex B.
The object and purpose of paragraph 1 of Annex B is 'to enable interested Members to become acquainted with' the sanitary and phytosanitary regulations adopted or maintained by other Members and thus to enhance transparency regarding these measures. In our opinion, the scope of application of the publication requirement of paragraph 1 of Annex B should be interpreted in the light of the object and purpose of this provision.
We note that it is undisputed that the varietal testing requirement is applicable generally. Furthermore, we consider in the light of the actual impact of the varietal testing requirement on exporting countries, as discussed by the Panel in paragraphs 8.112 and 8.113 of the Panel Report, that this instrument is of a character similar to laws, decrees and ordinances, the instruments explicitly referred to in the footnote to paragraph 1 of Annex B."(243) 195. At the Doha Ministerial conference, Members decided that the "reasonable interval" in respect of paragraph 2 should normally be understood as a period of not less than six months: "Subject to the conditions specified in paragraph 2 of Annex B to the Agreement on the Application of Sanitary and Phytosanitary Measures, the phrase "reasonable interval" shall be understood to mean normally a period of not less than 6 months. It is understood that timeframes for specific measures have to be considered in the context of the particular circumstances of the measure and actions necessary to implement it. The entry into force of measures which contribute to the liberalization of trade should not be unnecessarily delayed."(244) 2. Enquiry points (paragraph 3) 196. The Panel on Australia - Salmon found that there was no obligation under the SPS Agreement for a Member to positively identify its chosen appropriate level of protection. In the context of this finding, the Panel held that paragraph 3 of Annex B did not impose a "substantive obligation on Members to identify or quantify their appropriate level of protection", but rather merely a "mainly procedural obligation to provide 'answers to all reasonable questions from all interested Members'".(245) The Appellate Body reversed the Panel's finding and held that there was such an - albeit implicit - obligation, inter alia, in paragraph 3 of Annex B.(246) 197. In relation to the reinforcement of the transparency obligation of the agreements on equivalence between Members, see paragraph 150 above.
XVIII. Annex C back to top Annex C: Control, inspection and approval procedures(7) (footnote original) 7 Control, inspection and approval procedures include, inter alia, procedures for sampling, testing and certification.
1. Members shall ensure, with respect to any procedure to check and ensure the fulfilment of sanitary or phytosanitary measures, that:
(a) such procedures are undertaken and completed without undue delay and in no less favourable manner for imported products than for like domestic products;
(b) the standard processing period of each procedure is published or that the anticipated processing period is communicated to the applicant upon request; when receiving an application, the competent body promptly examines the completeness of the documentation and informs the applicant in a precise and complete manner of all deficiencies; the competent body transmits as soon as possible the results of the procedure in a precise and complete manner to the applicant so that corrective action may be taken if necessary; even when the application has deficiencies, the competent body proceeds as far as practicable with the procedure if the applicant so requests; and that upon request, the applicant is informed of the stage of the procedure, with any delay being explained;
(c) information requirements are limited to what is necessary for appropriate control, inspection and approval procedures, including for approval of the use of additives or for the establishment of tolerances for contaminants in food, beverages or feedstuffs;
(d) the confidentiality of information about imported products arising from or supplied in connection with control, inspection and approval is respected in a way no less favourable than for domestic products and in such a manner that legitimate commercial interests are protected;
(e) any requirements for control, inspection and approval of individual specimens of a product are limited to what is reasonable and necessary;
(f) any fees imposed for the procedures on imported products are equitable in relation to any fees charged on like domestic products or products originating in any other Member and should be no higher than the actual cost of the service;
(g) the same criteria should be used in the siting of facilities used in the procedures and the selection of samples of imported products as for domestic products so as to minimize the inconvenience to applicants, importers, exporters or their agents;
(h) specifications of a product are changed subsequent to its control and inspection in light of the applicable regulations, the procedure for the modified product is limited to what is necessary to determine whether adequate confidence exists that the product still meets the regulations concerned; and
(i) a procedure exists to review complaints concerning the operation of such procedures and to take corrective action when a complaint is justified.
Where an importing Member operates a system for the approval of the use of food additives or for the establishment of tolerances for contaminants in food, beverages or feedstuffs which prohibits or restricts access to its domestic markets for products based on the absence of an approval, the importing Member shall consider the use of a relevant international standard as the basis for access until a final determination is made.
2. Where a sanitary or phytosanitary measure specifies control at the level of production, the Member in whose territory the production takes place shall provide the necessary assistance to facilitate such control and the work of the controlling authorities.
3. Nothing in this Agreement shall prevent Members from carrying out reasonable inspection within their own territories. 198. In Australia - Salmon (Article 21.5 - Canada), Canada claimed a violation of paragraph 1(c) of Annex C by Australia. The Panel noted that only "procedures to check and ensure the fulfilment of sanitary or phytosanitary measures" fall under the scope of paragraph 1(c) of Annex C. It also considered that the Australian requirements referred to by Canada were "substantive sanitary measures in their own right" and not "procedures to check and ensure the fulfilment of sanitary or phytosanitary measures". The Panel thus concluded that no violation of paragraph 1(c) could be found.(247)
Footnotes: 183. (footnote original) Appellate Body
Report on US - Wool Shirts and Blouses, p. 17. back to text |
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