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S.6.1 Difference between the appropriate level of protection and the
SPS measure chosen to implement.
See also SPS Agreement, Article 5 (S.6.9-23) back to top
S.6.1.1 Australia — Salmon, para. 199
(WT/DS18/AB/R)
We do not believe that Article 11 of the DSU, or any other provision
of the DSU or of the SPS Agreement, entitles the Panel or
the Appellate Body, for the purpose of applying Article 5.6 in the
present case, to substitute its own reasoning about the implied level of
protection for that expressed consistently by Australia. The
determination of the appropriate level of protection, a notion defined
in paragraph 5 of Annex A, as “the level of protection deemed
appropriate by the Member establishing a sanitary… measure”, is a prerogative
of the Member concerned and not of a panel or of the Appellate Body.
S.6.1.2 Australia — Salmon, paras. 200-201
(WT/DS18/AB/R)
The “appropriate level of protection” established by a Member and
the “SPS measure” have to be clearly distinguished. They are not one
and the same thing. The first is an objective, the second is an instrument
chosen to attain or implement that objective.
It can be deduced from the provisions of the SPS Agreement
that the determination by a Member of the “appropriate level of
protection” logically precedes the establishment or decision on
maintenance of an “SPS measure”. The provisions of the SPS Agreement
also clarify the correlation between the “appropriate level of
protection” and the “SPS measure”.
S.6.1.3 Australia — Salmon, para. 203
(WT/DS18/AB/R)
… The words of Article 5.6, in particular the terms “when
establishing or maintaining sanitary … protection”, demonstrate
that the determination of the level of protection is an element in the
decision-making process which logically precedes and is separate
from the establishment or maintenance of the SPS measure. It is the
appropriate level of protection which determines the SPS measure to be
introduced or maintained, not the SPS measure introduced or maintained
which determines the appropriate level of protection. To imply the
appropriate level of protection from the existing SPS measure would be
to assume that the measure always achieves the appropriate level of
protection determined by the Member. That clearly cannot be the case.
S.6.1.4 Australia — Salmon, para. 206
(WT/DS18/AB/R)
We thus believe that the SPS Agreement contains an
implicit obligation to determine the appropriate level of protection. We
do not believe that there is an obligation to determine the appropriate
level of protection in quantitative terms. This does not mean, however,
that an importing Member is free to determine its level of protection
with such vagueness or equivocation that the application of the relevant
provisions of the SPS Agreement, such as Article 5.6,
becomes impossible. It would obviously be wrong to interpret the SPS
Agreement in a way that would render nugatory entire Articles or
paragraphs of Articles of this Agreement and allow Members to escape
from their obligations under this Agreement.
S.6.1.5 Australia — Salmon, para. 207
(WT/DS18/AB/R)
… we believe that in cases where a Member does not determine its
appropriate level of protection, or does so with insufficient precision,
the appropriate level of protection may be established by panels on the
basis of the level of protection reflected in the SPS measure actually
applied. Otherwise, a Member’s failure to comply with the implicit
obligation to determine its appropriate level of protection — with
sufficient precision — would allow it to escape from its obligations
under this Agreement and, in particular, its obligations under Articles 5.5 and 5.6.
S.6.2 Article 2 — Basic rights and obligations.
See also SPS
Agreement, Article 5.1 (S.6.9-14)
back to top
S.6.2.1 EC — Hormones, para. 250
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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. We recall the reading that we have given above to
Articles 2 and 5 — that Article 2.2 informs Article 5.1, and that
similarly Article 2.3 informs Article 5.5 — but believe that further
analysis of their relationship should await another case.
S.6.3 Article 2.2
— “sufficient scientific evidence”.
See also
Burden of Proof, Presumption — prima facie case (B.3.2); SPS Agreement,
Article 5.1 (S.6.9-14); SPS Agreement, Article 5.7
(S.6.19-23) back to top
S.6.3.1 EC — Hormones, para. 177
(WT/DS26/AB/R, WT/DS48/AB/R)
… The requirements of a risk assessment under Article 5.1, as well
as of “sufficient scientific evidence” under Article 2.2, are
essential for the maintenance of the delicate and carefully negotiated
balance in the SPS Agreement between the shared, but
sometimes competing, interests of promoting international trade and of
protecting the life and health of human beings. …
S.6.3.2 EC — Hormones, para. 180
(WT/DS26/AB/R, WT/DS48/AB/R)
… the Panel considered that Article 5.1 may be viewed as a specific
application of the basic obligations contained in Article 2.2 of the SPS
Agreement …
… We agree with this general consideration and would also stress
that Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation
set out in Article 2.2 impart meaning to Article 5.1.
S.6.3.3 Australia — Salmon, para. 138
(WT/DS18/AB/R)
… by maintaining an import prohibition … in violation of Article 5.1, Australia has, by implication, also acted inconsistently with
Article 2.2 of the SPS Agreement.
S.6.3.4 Japan — Agricultural Products II, paras. 73-74
(WT/DS76/AB/R)
… 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.
The 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.
S.6.3.5 Japan — Agricultural Products II, para. 84
(WT/DS76/AB/R)
… we 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.
S.6.3.6 Japan — Agricultural Products II, para. 80
(WT/DS76/AB/R)
… 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.
S.6.3.7 Japan — Apples, paras. 163-164
(WT/DS245/AB/R)
As we see it, the Panel examined the evidence adduced by the parties
and considered the opinions of the experts. It concluded as a matter of
fact that it is not likely that apple fruit would serve as a pathway for
the entry, establishment or spread of fire blight in Japan. The Panel
then contrasted the extent of the risk and the nature of the elements
composing the measure, and concluded that the measure was “clearly
disproportionate to the risk identified on the basis of the scientific
evidence available.” For the Panel, such “clear disproportion”
implies that a “rational or objective relationship” does not exist
between the measure and the relevant scientific evidence, and,
therefore, the Panel concluded that the measure is maintained “without
sufficient scientific evidence” within the meaning of Article 2.2 of
the SPS Agreement. We note that the “clear disproportion”
to which the Panel refers, relates to the application in this case of
the requirement of a “rational or objective relationship between an
SPS measure and the scientific evidence”.
We emphasize, following the Appellate Body’s statement in Japan
— Agricultural Products II [paragraph 84], 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”. 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”. 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.
S.6.4 Article 2.3
— “not arbitrarily or unjustifiably discriminate
between Members where identical or similar conditions prevail”.
See
also SPS Agreement, Article 5.5 (S.6.15-17)
back to top
S.6.4.1 Australia — Salmon, para. 252
(WT/DS18/AB/R)
… 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.
S.6.5 Article 3 — Level of protection and harmonization of SPS
measures back to top
S.6.5.1 EC — Hormones, para. 104
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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.
…
S.6.5.2 EC — Hormones, para. 177
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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. …
S.6.6 Article 3.1 — “measures based on … international standards”
back to top
S.6.6.1 EC — Hormones, para. 102
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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.
S.6.6.2 EC — Hormones, paras. 165-166
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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.
… we disagree with the Panel’s interpretation that “based on”
means the same thing as “conform to”.
S.6.6.3 EC — Hormones, para. 171
(WT/DS26/AB/R, WT/DS48/AB/R)
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.
S.6.7 Article 3.2 — “measures which conform to international
standards” back to top
S.6.7.1 EC — Hormones, para. 102
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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.
S.6.7.2 EC — Hormones, para. 170
(WT/DS26/AB/R, WT/DS48/AB/R)
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.
S.6.8 Article 3.3 — “measures which result in a higher level of …
protection” back to top
S.6.8.1 EC — Hormones, para. 104
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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 and Article XX of the GATT 1994 … Article 3.3 recognizes
the autonomous right of a Member to establish such higher level of
protection, provided that that Member complies with certain requirements
in promulgating SPS measures to achieve that level. …
S.6.8.2 EC — Hormones, para. 172
(WT/DS26/AB/R, WT/DS48/AB/R)
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. This is made clear in the sixth preambular paragraph of
the SPS Agreement: …
… [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.
S.6.8.3 EC — Hormones, para. 173
(WT/DS26/AB/R, WT/DS48/AB/R)
The right of a Member to define its appropriate level of protection
is, however, not an absolute or unqualified right. …
S.6.8.4 EC — Hormones, para. 175
(WT/DS26/AB/R, WT/DS48/AB/R)
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.
S.6.8.5 EC — Hormones, para. 177
(WT/DS26/AB/R, WT/DS48/AB/R)
… 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
…
S.6.9 Article 5.1 and Annex A, paragraph 4 — Concept of risk
assessment back to top
S.6.9.1 EC — Hormones, para. 177
(WT/DS26/AB/R, WT/DS48/AB/R)
… The requirements of a risk assessment under Article 5.1, as well
as of “sufficient scientific evidence” under Article 2.2, are
essential for the maintenance of the carefully negotiated balance
achieved in the SPS Agreement between the shared, but
sometimes competing, interests of promoting international trade and
protecting the health of human beings. …
S.6.9.2 EC — Hormones, para. 180
(WT/DS26/AB/R, WT/DS48/AB/R)
… the Panel considered that Article 5.1 may be viewed as a specific
application of the basic obligations contained in Article 2.2 of the SPS
Agreement …
… We agree with this general consideration and would also stress
that Articles 2.2 and 5.1 should constantly be read together. Article 2.2 informs Article 5.1: the elements that define the basic obligation
set out in Article 2.2 impart meaning to Article 5.1.
S.6.9.3 EC — Hormones, para. 181
(WT/DS26/AB/R, WT/DS48/AB/R)
… We must stress … that Article 5 and Annex A of the SPS Agreement
speak of “risk assessment” only and that the term “risk management”
is not to be found either in Article 5 or in any other provision of the SPS
Agreement. Thus, the Panel’s distinction, which it apparently
employs to achieve or support what appears to be a restrictive notion of
risk assessment, has no textual basis. …
S.6.9.4 EC — Hormones, paras. 183-184
(WT/DS26/AB/R, WT/DS48/AB/R)
Interpreting [paragraph 4 of Annex A of the SPS Agreement],
the Panel elaborates risk assessment as a two-step process that “should
(i) identify the adverse effects on human health (if any)
arising from the presence of the hormones at issue when used as growth
promoters in meat …, and (ii) if any such adverse effects
exist, evaluate the potential or probability of occurrence
of such effects”.
… Although the utility of a two-step analysis may be debated, it
does not appear to us to be substantially wrong. What needs to be
pointed out at this stage is that the Panel’s use of “probability”
as an alternative term for “potential” creates a significant
concern. The ordinary meaning of “potential” relates to “possibility”
and is different from the ordinary meaning of “probability”. “Probability”
implies a higher degree or a threshold of potentiality or possibility.
It thus appears that here the Panel introduces a quantitative dimension
to the notion of risk.
S.6.9.5 EC — Hormones, para. 190
(WT/DS26/AB/R, WT/DS48/AB/R)
Article 5.1 does not insist that a Member that adopts a sanitary
measure shall have carried out its own risk assessment. It only requires
that the SPS measures be “based on an assessment, as appropriate for
the circumstances …”. The SPS measure might well find its objective
justification in a risk assessment carried out by another Member, or an
international organization. …
S.6.10 Article 5.1 — Ascertainable risk
back to top
S.6.10.1 EC — Hormones, para. 186
(WT/DS26/AB/R, WT/DS48/AB/R)
… In one part of its Reports, the Panel opposes a requirement of an
“identifiable risk” to the uncertainty that theoretically always
remains since science can never provide absolute certainty
that a given substance will not ever have adverse health effects.
We agree with the Panel that this theoretical uncertainty is not the
kind of risk which, under Article 5.1, is to be assessed. …
S.6.10.2 EC — Hormones, para. 187
(WT/DS26/AB/R, WT/DS48/AB/R)
… It is essential to bear in mind that the risk that is to be
evaluated in a risk assessment under Article 5.1 is not only risk
ascertainable in a science laboratory operating under strictly
controlled conditions, but also risk in human societies as they actually
exist, in other words, the actual potential for adverse effects on human
health in the real world where people live and work and die.
S.6.10.3 Australia — Salmon, para. 125
(WT/DS18/AB/R)
… As stated in our Report in European Communities
— Hormones,
the “risk” evaluated in a risk assessment must be an ascertainable
risk; theoretical uncertainty is “not the kind of risk which, under
Article 5.1, is to be assessed.” This does not mean, however, that a
Member cannot determine its own appropriate level of protection to be
“zero risk”.
S.6.10.4 Japan — Apples, para. 241
(WT/DS245/AB/R)
The comments of the Panel in response to the argument of the United
States on “theoretical risk” should be viewed in their appropriate
context. In EC — Hormones, the Appellate Body referred to
the notion of “theoretical uncertainty” in the context of Article 5.1 of the SPS Agreement. The Appellate Body indicated
that Article 5.1 does not address theoretical uncertainty, that is to
say, “uncertainty that theoretically always remains since science can never
provide absolute certainty that a given substance will not ever
have adverse health effects.” [Appellate Body Report, para. 186] We
understand that the “scientific prudence” displayed by the experts
in this case related to the risks that might arise from radical changes
in Japan’s current system of phytosanitary controls, taking into
account Japan’s island environment and climate. The scientific
prudence displayed by the experts did not relate to the “theoretical
uncertainty” that is inherent in the scientific method and which stems
from the intrinsic limits of experiments, methodologies, or instruments
deployed by scientists to explain a given phenomenon. Therefore, we
agree with the Panel that the scientific prudence displayed by the
experts should not be “completely assimilated” to the “theoretical
uncertainty” that the Appellate Body discussed in EC — Hormones as being beyond the purview of risks to be addressed by
measures subject to the SPS Agreement. …
S.6.11 Article 5.1 — Types of risk assessment
back to top
S.6.11.1 Australia — Salmon, para. 121
(WT/DS18/AB/R)
… in this case a risk assessment within the meaning of Article 5.1
must:
(1) identify the diseases whose entry, establishment or spread
a Member wants to prevent within its territory, as well as the potential
biological and economic consequences associated with the entry,
establishment or spread of these diseases;
(2) evaluate the likelihood of entry, establishment or spread of
these diseases, as well as the associated potential biological and
economic consequences; and
(3) evaluate the likelihood of entry, establishment or spread of
these diseases according to the SPS measures which might be applied.
S.6.12 Article 5.1 — Degree of risk
back to top
S.6.12.1 Australia — Salmon, footnote 69 to para. 123
(WT/DS18/AB/R)
We note that the first type of risk assessment in paragraph 4 of
Annex A is substantially different from the second type of risk
assessment contained in the same paragraph. While the second requires
only the evaluation of the potential for adverse effects on human
or animal health, the first type of risk assessment demands an
evaluation of the likelihood of entry, establishment or spread of
a disease, and of the associated potential biological and economic
consequences. In view of the very different language used in paragraph 4
of Annex A for the two types of risk assessment, we do not believe that
it is correct to diminish the substantial differences between these two
types of risk assessments …
S.6.12.2 Australia — Salmon, para. 123
(WT/DS18/AB/R)
… for a risk assessment to fall within the meaning of Article 5.1
and the first definition in paragraph 4 of Annex A, it is not sufficient
that a risk assessment conclude that there is a possibility of
entry, establishment or spread of diseases and associated biological and
economic consequences. A proper risk assessment of this type must
evaluate the “likelihood”, i.e., the “probability”, of entry,
establishment or spread of diseases and associated biological and
economic consequences as well as the “likelihood”, i.e., “probability”,
of entry, establishment or spread of diseases according to the SPS
measures which might be applied.
S.6.12.3 Australia — Salmon, para. 124
(WT/DS18/AB/R)
… We do not agree with the Panel that a risk assessment of this
type needs only some evaluation of the likelihood or probability.
The definition of this type of risk assessment in paragraph 4 of Annex A
refers to “the evaluation of the likelihood” and not to some
evaluation of the likelihood. We agree, however, … that the SPS
Agreement does not require that the evaluation of the likelihood
needs to be done quantitatively. The likelihood may be expressed either
quantitatively or qualitatively … there is no requirement for a risk
assessment to establish a certain magnitude or threshold level of degree
of risk.
S.6.12.4 Japan — Apples, para. 208
(WT/DS245/AB/R)
The definition of “risk assessment” in the SPS Agreement
requires that the evaluation of the entry, establishment or spread of a
disease be conducted “according to the sanitary or phytosanitary
measures which might be applied”. We agree with the Panel that this
phrase “refers to the measures which might be applied, not
merely to the measures which are being applied.” The phrase “which
might be applied” is used in the conditional tense. In this sense, “might”
means: “were or would be or have been able to, were or would be or
have been allowed to, were or would perhaps”. We understand this
phrase to imply that a risk assessment should not be limited to an
examination of the measure already in place or favoured by the importing
Member. In other words, the evaluation contemplated in paragraph 4 of
Annex A to the SPS Agreement should not be distorted by
preconceived views on the nature and the content of the measure to be
taken; nor should it develop into an exercise tailored to and carried
out for the purpose of justifying decisions ex post facto.
S.6.13 Articles 5.1 and 5.2 — Risk assessment —
specific to the risk
identified back to top
S.6.13.1 EC — Hormones, para. 199
(WT/DS26/AB/R, WT/DS48/AB/R)
The European Communities laid particular emphasis on the 1987 IARC
Monographs and the Articles and opinions of individual scientists
referred to above. The Panel notes, however, that the scientific
evidence set out in these Monographs and these Articles and opinions
relates to the carcinogenic potential of entire categories of
hormones, or of the hormones at issue in general. The Monographs
and the Articles and opinions are, in other words, in the nature of
general studies of or statements on the carcinogenic potential of the
named hormones. The Monographs and the Articles and opinions of
individual scientists have not evaluated the carcinogenic potential of
those hormones when used specifically for growth promotion purposes.
Moreover, they do not evaluate the specific potential for carcinogenic
effects arising from the presence in “food”, more
specifically, “meat or meat products” of residues of the hormones in
dispute. The Panel also notes that, according to the scientific experts
advising the Panel, the data and studies set out in these 1987
Monographs have been taken into account in the 1988 and 1989 JECFA
Reports and that the conclusions reached by the 1987 IARC Monographs are
complementary to, rather than contradictory of, the conclusions of the
JECFA Reports. The Panel concludes that these Monographs and these
Articles and opinions are insufficient to support the EC measures at
issue in this case.
S.6.13.2 EC — Hormones, para. 206
(WT/DS26/AB/R, WT/DS48/AB/R)
… The SPS Agreement requires assessment of the
potential for adverse effects on human health arising from the presence
of contaminants and toxins in food. We consider that the object and
purpose of the SPS Agreement justify the examination and
evaluation of all such risks for human health whatever their precise and
immediate origin may be. We do not mean to suggest that risks arising
from potential abuse in the administration of controlled substances and
from control problems need to be, or should be, evaluated by risk
assessors in each and every case. When and if risks of these types do in
fact arise, risk assessors may examine and evaluate them. Clearly, the
necessity or propriety of examination and evaluation of such risks would
have to be addressed on a case-by-case basis. What, in our view, is a
fundamental legal error is to exclude, on an a priori basis, any
such risks from the scope of application of Articles 5.1 and 5.2. …
S.6.13.3 Japan — Apples, para. 202 and footnote 372
(WT/DS245/AB/R)
… Under the SPS Agreement, the obligation to conduct
an assessment of “risk” is not satisfied merely by a general
discussion of the disease sought to be avoided by the imposition of a
phytosanitary measure.372
The Appellate Body found the risk
assessment at issue in EC — Hormones not to be “sufficiently
specific” even though the scientific Articles cited by the importing
Member had evaluated the “carcinogenic potential of entire categories
of hormones, or of the hormones at issue in general.” In order
to constitute a “risk assessment” as defined in the SPS Agreement,
the Appellate Body concluded, the risk assessment should have reviewed
the carcinogenic potential, not of the relevant hormones in general, but
of “residues of those hormones found in meat derived from cattle to
which the hormones had been administered for growth promotion purposes”.
Therefore, when discussing the risk to be specified in the risk
assessment in EC — Hormones, the Appellate Body referred
in general to the harm concerned (cancer or genetic damage) as well
as to the precise agent that may possibly cause the harm (that is,
the specific hormones when used in a specific manner and for specific
purposes).
S.6.13.4 Japan — Apples, para. 203 and footnote 379
(WT/DS245/AB/R)
In this case, the Panel found that the conclusion of the 1999 PRA
with respect to fire blight was “based on an overall assessment of
possible modes of contamination, where apple fruit is only one of the
possible hosts/vectors considered.” The Panel further found, on the
basis of the scientific evidence, that the risk of entry, establishment
or spread of the disease varies significantly depending on the vector,
or specific host plant, being evaluated. Given that the measure at issue
relates to the risk of transmission of fire blight through apple fruit,
in an evaluation of whether the risk assessment is “sufficiently
specific to the case at hand”, the nature of the risk addressed by the
measure at issue is a factor to be taken into account. In the light of
these considerations, we are of the view that the Panel properly
determined that the 1999 PRA “evaluat[ion of] the risks associated
with all possible hosts taken together” was not sufficiently specific
to qualify as a “risk assessment” under the SPS Agreement
for the evaluation of the likelihood of entry, establishment or spread
of fire blight in Japan through apple fruit.379
S.6.14 Article 5.1 — Requirement to base measure on the risk
assessment back to top
S.6.14.1 EC — Hormones, para. 186
(WT/DS26/AB/R, WT/DS48/AB/R)
… To the extent that the Panel purported to require a risk
assessment to establish a minimum magnitude of risk, we must note that
imposition of such a quantitative requirement finds no basis in the SPS
Agreement. A panel is authorized only to determine whether a
given SPS measure is “based on” a risk assessment. …
S.6.14.2 EC — Hormones, para. 193
(WT/DS26/AB/R, WT/DS48/AB/R)
… We believe that Article 5.1, when contextually read as it should
be, in conjunction with and as informed by Article 2.2 of the SPS
Agreement, requires that the results of the risk assessment must
sufficiently warrant — that is to say, reasonably support — the SPS
measure at stake. The requirement that an SPS measure be “based on”
a risk assessment is a substantive requirement that there be a rational
relationship between the measure and the risk assessment.
S.6.14.3 Japan — Agricultural Products II, para. 84
(WT/DS76/AB/R)
… we 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.
S.6.14.4 EC — Hormones, para. 194
(WT/DS26/AB/R, WT/DS48/AB/R)
We do not believe that a risk assessment has to come to a monolithic
conclusion that coincides with the scientific conclusion or view
implicit in the SPS measure. The risk assessment could set out both the
prevailing view representing the “mainstream” of scientific opinion,
as well as the opinions of scientists taking a divergent view. Article 5.1 does not require that the risk assessment must necessarily embody
only the view of a majority of the relevant scientific community … In
most cases, responsible and representative governments tend to base
their legislative and administrative measures on “mainstream”
scientific opinion. In other cases, equally responsible and
representative governments may act in good faith on the basis of what,
at a given time, may be a divergent opinion coming from qualified and
respected sources. By itself, this does not necessarily signal the
absence of a reasonable relationship between the SPS measure and the
risk assessment, especially where the risk involved is life-threatening
in character and is perceived to constitute a clear and imminent threat
to public health and safety. Determination of the presence or absence of
that relationship can only be done on a case-to-case basis, after
account is taken of all considerations rationally bearing upon the issue
of potential adverse health effects.
S.6.14.5 Japan — Apples, para. 215
(WT/DS245/AB/R)
As Japan failed to establish that the Panel utilized subsequent
scientific evidence in evaluating the risk assessment at issue, it is
not necessary for us to express views on the question whether the
conformity of a risk assessment with Article 5.1 should be evaluated
solely against the scientific evidence available at the time of the risk
assessment, to the exclusion of subsequent information. Resolution of
such hypothetical claims would not serve “to secure a positive
solution” to this dispute.
S.6.15 Article 5.5 — Consistency in the application of the
appropriate level of protection back to top
S.6.15.1 EC — Hormones, para. 213
(WT/DS26/AB/R, WT/DS48/AB/R)
The objective of Article 5.5 is formulated as the “achieving [of]
consistency in the application of the concept of appropriate level of
sanitary or phytosanitary protection”. Clearly, the desired
consistency is defined as a goal to be achieved in the future … Thus,
we agree with the Panel’s view that the statement of that goal does
not establish a legal obligation of consistency of appropriate
levels of protection. We think, too, that the goal set is not absolute
or perfect consistency, since governments establish their appropriate
levels of protection frequently on an ad hoc basis and over time,
as different risks present themselves at different times. It is only
arbitrary or unjustifiable inconsistencies that are to be avoided.
S.6.15.2 EC — Hormones, paras. 214-215
(WT/DS26/AB/R, WT/DS48/AB/R)
Close inspection of Article 5.5 indicates that a complaint of
violation of this Article must show the presence of three distinct
elements. The first element is that the Member imposing the measure
complained of has adopted its own appropriate levels of sanitary
protection against risks to human life or health in several different
situations. The second element to be shown is that those levels of
protection exhibit arbitrary or unjustifiable differences (“distinctions”
in the language of Article 5.5) in their treatment of different
situations. The last element requires that the arbitrary or
unjustifiable differences result in discrimination or a disguised
restriction of international trade. We understand the last element to be
referring to the measure embodying or implementing a particular
level of protection as resulting, in its application, in discrimination
or a disguised restriction on international trade.
We consider the above three elements of Article 5.5 to be cumulative
in nature; all of them must be demonstrated to be present if violation
of Article 5.5 is to be found. In particular, both the second and third
elements must be found. The second element alone would not suffice. The
third element must also be demonstrably present: the implementing
measure must be shown to be applied in such a manner as to result in
discrimination or a disguised restriction on international trade. The
presence of the second element — the arbitrary or unjustifiable
character of differences in levels of protection considered by a
Member as appropriate in differing situations — may in practical effect
operate as a “warning” signal that the implementing measure
in its application might be a discriminatory measure or might
be a restriction on international trade disguised as an SPS measure for
the protection of human life or health. Nevertheless, the measure itself
needs to be examined and appraised and, in the context of the differing
levels of protection, shown to result in discrimination or a disguised
restriction on international trade.
S.6.16 Article 5.5 — “distinctions in the level of protection in
different situations” back to top
S.6.16.1 EC — Hormones, para. 217
(WT/DS26/AB/R, WT/DS48/AB/R)
… The situations exhibiting differing levels of protection cannot,
of course, be compared unless they are comparable, that is, unless they
present some common element or elements sufficient to render them
comparable. If the situations proposed to be examined are totally
different from one another, they would not be rationally comparable and
the differences in levels of protection cannot be examined for
arbitrariness.
S.6.16.2 Australia — Salmon, para. 146
(WT/DS18/AB/R)
… the Panel was correct in stating that situations can be compared
under Article 5.5 if these situations involve either a risk of
entry, establishment or spread of the same or a similar disease, or
a risk of the same or similar “associated potential biological and
economic consequences”.
S.6.16.3 Australia — Salmon, para. 152
(WT/DS18/AB/R)
… we believe that for situations to be comparable under Article 5.5, it is sufficient for these situations to have in common a risk of
entry, establishment or spread of one disease of concern. There
is no need for these situations to have in common a risk of entry,
establishment or spread of all diseases of concern. …
S.6.17 Article 5.5 — “result in discrimination or a disguised
restriction” back to top
S.6.17.1 EC — Hormones, para. 212
(WT/DS26/AB/R, WT/DS48/AB/R)
Article 5.5 must be read in context. An important part of that
context is Article 2.3 of the SPS Agreement, which
provides as follows:
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.
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.
S.6.17.2 EC — Hormones, para. 238
(WT/DS26/AB/R, WT/DS48/AB/R)
We agree with the Panel’s view that “all three elements [of
Article 5.5] need to be distinguished and addressed separately”. We
also recall our interpretation that Article 5.5 and, in particular, the
terms “discrimination or a disguised restriction on international
trade”, have to be read in the context of the basic obligations
contained in Article 2.3, which requires that “sanitary … measures
shall not be applied in a manner which would constitute a disguised
restriction on international trade”. (emphasis added)
S.6.17.3 EC — Hormones, para. 240
(WT/DS26/AB/R, WT/DS48/AB/R)
In our view, the degree of difference, or the extent of the
discrepancy, in the levels of protection, is only one kind of factor
which, along with others, may cumulatively lead to the conclusion that
discrimination or a disguised restriction on international trade in fact
results from the application of a measure or measures embodying one or
more of those different levels of protection … 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.
…
S.6.17.4 EC — Hormones, para. 246
(WT/DS26/AB/R, WT/DS48/AB/R)
Our conclusion, therefore, is that the Panel’s finding that the “arbitrary
or unjustifiable” difference in the EC levels of protection in respect
of the hormones at issue on the one hand and in respect of carbadox and
olaquindox on the other hand, “result in discrimination or a disguised
restriction on international trade”, is not supported either by the
architecture and structure of the EC Directives here at stake or of the
subsequent Directive on carbadox and olaquindox, or by the evidence
submitted by the United States and Canada to the Panel. …
S.6.17.5 Australia — Salmon, para. 164
(WT/DS18/AB/R)
… in this case the degree of difference in the levels of protection
(prohibition versus tolerance) is indeed, as the Panel stated,
“rather substantial”. We, therefore, consider it legitimate to treat
this difference as a separate warning signal.
S.6.17.6 Australia — Salmon, para. 166
(WT/DS18/AB/R)
… We note that a finding that an SPS measure is not based on an
assessment of the risks to human, animal or plant life or health — either because there was no risk assessment at all or because there is
an insufficient risk assessment — is a strong indication that this
measure is not really concerned with the protection of human, animal or
plant life or health but is instead a trade-restrictive measure taken in
the guise of an SPS measure, i.e., a “disguised restriction on
international trade”. We, therefore, consider that the finding of
inconsistency with Article 5.1 is an appropriate warning signal for a
“disguised restriction on international trade”.
S.6.18 Article 5.6 — Not more trade restrictive than required to
achieve the appropriate level of protection back to top
S.6.18.1 Australia — Salmon, para. 194
(WT/DS18/AB/R)
We agree with the Panel that Article 5.6 and, in particular, the
footnote to this provision, clearly provides a three-pronged test to
establish a violation of Article 5.6. As already noted, the three
elements of this test under Article 5.6 are that there is an SPS measure
which:
(1) is reasonably available taking into account technical and
economic feasibility;
(2) achieves the Member’s appropriate level of sanitary or
phytosanitary protection; and
(3) is significantly less restrictive to trade than the SPS measure
contested.
These three elements are cumulative in the sense that, to establish
inconsistency with Article 5.6, all of them have to be met. If any of
these elements is not fulfilled, the measure in dispute would be
consistent with Article 5.6. …
S.6.18.2 Japan — Agricultural Products II, para. 95
(WT/DS76/AB/R)
Article 5.6 of the SPS Agreement prohibits SPS measures that are more
trade-restrictive than required to achieve a Member’s appropriate
level of protection. According to the footnote to Article 5.6, a measure
is considered more trade-restrictive than required if there is another
SPS measure which:
(1) is reasonably available taking into account technical and
economic feasibility;
(2) achieves the Member’s appropriate level of sanitary or
phytosanitary protection; and
(3) is significantly less restrictive to trade than the SPS measure
contested.
As we have stated in our Report in Australia
— Salmon,
these three elements are cumulative in nature.
S.6.19 Article 5.7 — Provisional adoption of SPS measures
back to top
S.6.19.1 Japan — Agricultural Products II, para. 80
(WT/DS76/AB/R)
… 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.
S.6.19.2 Japan — Agricultural Products II, para. 89
(WT/DS76/AB/R)
Article 5.7 of the SPS Agreement sets out four
requirements which must be met in order to adopt and maintain a
provisional SPS measure. Pursuant to the first sentence of Article 5.7,
a Member may provisionally adopt an SPS measure if this measure is:
(1) imposed in respect of a situation where “relevant scientific
information is insufficient”; and
(2) adopted “on the basis of available pertinent information”.
Pursuant to the second sentence of Article 5.7, such a provisional
measure may not be maintained unless the Member which adopted the
measure:
(1) “seek[s] to obtain the additional information necessary for a
more objective assessment of risk”; and
(2) “review[s] the … measure accordingly within a reasonable
period of time”.
These four requirements are clearly cumulative in nature and are
equally important for the purpose of determining consistency with this
provision. Whenever one of these four requirements is not met,
the measure at issue is inconsistent with Article 5.7.
S.6.19.3 Japan — Agricultural Products II, para. 91
(WT/DS76/AB/R)
We, therefore, conclude that the Panel did not err in its application
of Article 5.7 by first examining whether the varietal testing
requirement meets the requirements of the second sentence of Article 5.7. Having established that the requirements of the second sentence of
Article 5.7 are not met, there was no need for the Panel to examine the
requirements of the first sentence.
S.6.20 Article 5.7 — “where relevant scientific evidence is
insufficient” back to top
S.6.20.1 Japan — Apples, para. 179
(WT/DS245/AB/R)
… The first requirement of Article 5.7 is that there must be
insufficient scientific evidence. When a panel reviews a measure claimed
by a Member to be provisional, that panel must assess whether “relevant
scientific evidence is insufficient”. This evaluation must be carried
out, not in the abstract, but in the light of a particular inquiry. The
notions of “relevance” and “insufficiency” in the introductory
phrase of Article 5.7 imply a relationship between the scientific
evidence and something else. Reading this introductory phrase in the
broader context of Article 5 of the SPS Agreement, which
is entitled “Assessment of Risk and Determination of the Appropriate
Level of Sanitary or Phytosanitary Protection”, is instructive in
ascertaining the nature of the relationship to be established. Article 5.1 sets out a key discipline under Article 5, namely that “Members
shall ensure that their sanitary or phytosanitary measures are based on
an assessment … of the risks to human, animal or plant life or health”.
This discipline informs the other provisions of Article 5, including
Article 5.7. We note, as well, that the second sentence of Article 5.7
refers to a “more objective assessment of risks”. These contextual
elements militate in favour of a link or relationship between the first
requirement under Article 5.7 and the obligation to perform a risk
assessment under Article 5.1: “relevant scientific evidence” will be
“insufficient” within the meaning of Article 5.7 if the body of
available scientific evidence does not allow, in quantitative or
qualitative terms, the performance of an adequate assessment of risks as
required under Article 5.1 and as defined in Annex A to the SPS Agreement.
Thus, the question is not whether there is sufficient evidence of a
general nature or whether there is sufficient evidence related to a
specific aspect of a phytosanitary problem, or a specific risk. The
question is whether the relevant evidence, be it “general” or “specific”,
in the Panel’s parlance, is sufficient to permit the evaluation of the
likelihood of entry, establishment or spread of, in this case, fire
blight in Japan.
S.6.20.2 Japan — Apples, para. 184
(WT/DS245/AB/R)
… The application of Article 5.7 is triggered not by the existence
of scientific uncertainty, but rather by the insufficiency of scientific
evidence. The text of Article 5.7 is clear: it refers to “cases where
relevant scientific evidence is insufficient”, not to “scientific
uncertainty”. The two concepts are not interchangeable. Therefore, we
are unable to endorse Japan’s approach of interpreting Article 5.7
through the prism of “scientific uncertainty”.
S.6.21 Article 5.7 — “seek to obtain additional information”
back to top
S.6.21.1 Japan — Agricultural Products II, para. 92
(WT/DS76/AB/R)
… we note that the first part of the second sentence stipulates
that the Member adopting a provisional SPS measure “shall seek to
obtain the additional information necessary for a more objective
assessment of risk”. Neither Article 5.7 nor any other provision of
the SPS Agreement sets out explicit prerequisites
regarding the additional information to be collected or a specific
collection procedure. Furthermore, Article 5.7 does not specify what
actual results must be achieved; the obligation is to “seek to obtain”
additional information. However, Article 5.7 states that the additional
information is to be sought in order to allow the Member to conduct “a
more objective assessment of risk”. Therefore, the information sought
must be germane to conducting such a risk assessment, i.e., the
evaluation of the likelihood of entry, establishment or spread of, in
casu, a pest, according to the SPS measures which might be applied.
…
S.6.22 Article 5.7 — “review … within a reasonable period of time”
back to top
S.6.22.1 Japan — Agricultural Products II, para. 93
(WT/DS76/AB/R)
… In our view, what constitutes a “reasonable period of time”
has to be established on a case-by-case basis and depends on the
specific circumstances of each case, including the difficulty of
obtaining the additional information necessary for the review and
the characteristics of the provisional SPS measure. …
S.6.23 Article 5.7 — Precautionary principle
back to top
S.6.23.1 EC — Hormones, paras. 123-125
(WT/DS26/AB/R, WT/DS48/AB/R)
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.
It appears to us important, nevertheless, to note some aspects of the
relationship of the precautionary principle 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. Secondly, the precautionary principle indeed finds reflection
in Article 5.7 of the SPS Agreement. We agree, at the same
time, with the European Communities, that there is no need to assume
that Article 5.7 exhausts the relevance of a precautionary principle. It
is reflected also in the sixth paragraph of the preamble and in Article 3.3. 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. Thirdly, 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. 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.
We accordingly agree with the finding of the Panel that the
precautionary principle does not override the provisions of Articles 5.1
and 5.2 of the SPS Agreement.
S.6.24 Annex B on “Transparency of SPS Regulations”, paragraph 1
— “publication of laws, decrees or ordinances”
back to top
S.6.24.1 Japan — Agricultural Products II, paras. 105-106
(WT/DS76/AB/R)
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.
372. Indeed, we are of the view that, as a general matter,
“risk” cannot usually be understood only in terms of the disease or adverse
effects that may result. Rather, an evaluation of risk must connect the
possibility of adverse effects with an antecedent or cause. For example, the
abstract reference to the “risk of cancer” has no significance, in and of
itself, under the SPS Agreement; but when one refers to the “risk
of cancer from smoking cigarettes”, the particular risk is given content.
back to text
379. We note our understanding that the Panel did not base
its finding on, nor make any reference to, whether the SPS Agreement
requires a risk assessment to analyze the importation of products on a country-specific
basis. Neither participant in this appeal has asked us to find that the
definition of “risk assessment” in the SPS Agreement mandates
an analysis of risk specific to each country of exportation. As a result,
we make no findings with respect to whether such a country-specific
analysis is required in order to satisfy a Member’s obligations under Article 5.1 of the SPS Agreement. back to text
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