DISPUTE SETTLEMENT: DISPUTE DS389

European Communities — Certain Measures Affecting Poultry Meat and Poultry Meat Products from the United States


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Complainant:
Respondent:
Third Parties:
Agreements cited:
(as cited in request for consultations)
Request for Consultations received:

  

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Consultations

Complaint by the United States.

On 16 January 2009, the United States requested consultations with the European Communities (“EC”) regarding certain measures of the EC affecting poultry meat and poultry meat products (“poultry”) from the United States.

The United States notes that the EC prohibits the import of poultry treated with any substance other than water unless that substance has been approved by the EC. Consequently, the EC prohibits the import of poultry that has been processed with chemical treatments (“pathogen reduction treatments” or “PRTs”) designed to reduce the amount of microbes on the meat, effectively prohibiting the shipment of virtually all US poultry to the EC. The EC has not published or otherwise made available the process for approving a substance. The EC also maintains a measure regarding the marketing standards for poultry meat, which defines “poultry meat” as only “poultry meat suitable for human consumption, which has not undergone any treatment other than cold treatment.”

According to the United States, in 2002, the United States requested the European Commission (“Commission”) to approve the use of four PRTs in the production of poultry intended for export to the EC: chlorine dioxide, acidified sodium chlorite, trisodium phosphate, and peroxyacids. However, after more than six years, including unexplained delays, the EC has not approved any of these four PRTs and instead has rejected the approval of the use of these four PRTs.

According to the United States, the EC's failure to approve is despite the fact that various EC agencies have issued scientific reports regarding a number of different aspects related to the processing of poultry with these four PRTs, the cumulative conclusion of which is that the importation and consumption of poultry processed with these four PRTs does not pose a risk to human health. The US notes that in particular, in May 2008, the Commission submitted a proposal to the EC Standing Committee on Food Chain and Animal Health (“SCoFCAH”) that purported to approve the import into the EC of poultry treated with these four PRTs. On 2 June 2008, SCoFCAH rejected the Commission's proposal unanimously, with the United Kingdom abstaining. On 18 December 2008, the EC Agricultural and Fisheries Council rejected the same Commission proposal by the same tally as SCoFCAH had.

The United States understands that these EC measures are reflected in, among others, Regulation (EC) No 853/2004, including Articles 3 and 6; Council Regulation (EC) No 1234/2007, including Annex XIV(B)(II)(2); SCoFCAH's rejection of the Commission's proposal regarding the removal of surface contamination from poultry carcasses on 2 June 2008; the EU Agricultural and Fisheries Council's rejection of the Commission's proposal regarding the removal of surface contamination from poultry carcasses on 18 December 2008; and any amendments, related measures, or implementing measures.

In the view of the United States. the EC measures appear to be inconsistent with the EC's WTO obligations, including, but not limited to, the following:

  1. SPS Agreement Articles 2.2, 5, and 8, and Annex C(1);
     
  2. GATT 1994 Articles X:1 and XI:1;
     
  3. Agriculture Agreement Article 4.2; and
     
  4. TBT Agreement Article 2.

According to the United States, the EC measures also appear to nullify or impair the benefits accruing to the United States directly or indirectly under the cited agreements.

On 30 January 2009, Australia requested to join the consultations.  Subsequently, the European Communities notified the DSB that it had accepted the request of Australia to join the consultations.

On 8 October 2009, the United States requested the establishment of a panel.  At its meeting on 23 October 2009, the DSB deferred the establishment of a panel.  At its meeting on 19 November 2009, the DSB established a panel.  Australia, China, Korea and Norway reserved their third-party rights.  Subsequently, Guatemala, New Zealand and Chinese Taipei reserved their third-party rights.

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