Salmon — the findings at a glance

Measure at issue: Australia’s ban on importation of fresh chilled or frozen salmon, allegedly to protect the domestic salmon population from a number of diseases. Canada claimed that salmon imported for human consumption was very unlikely to lead to the introduction of these diseases.

Panel findings:

• the import ban violated Article 5.1, because it was not based on a risk assessment. Australia had carried out a risk assessment for ocean-caught Pacific salmon, but the Panel found no rational relationship between the measure and the risk assessment. For the other types of salmon, no risk assessment had been carried out. The Panel considered that the measure prohibiting imports of fresh chilled and frozen salmon could also be described as a requirement that the salmon be heat-treated.
   
• the Australian measure violated Article 5.5, because the level of protection sought for salmon was much higher than in comparable situations; these differences were arbitrary or unjustifiable, and resulted in discrimination or a disguised restriction on trade. In particular, there were no restrictions on imports of frozen herring for bait; and there were few restrictions on imports of live ornamental fish.
   
• the ban on salmon was more trade-restrictive than required to achieve Australia’s appropriate level of protection, and therefore violated Article 5.6.
   

Appellate Body findings:

• reversed the Panel’s finding that the ban on the other types of salmon was not based on a risk assessment, because the Panel made the finding based on the heat-treatment requirement. It found, however, that Australia’s risk assessment on ocean-caught Pacific salmon was not a proper risk assessment in the sense of the SPS Agreement, and the ban therefore violated Article 5.1. It upheld the finding that no risk assessment had been carried out for other types of salmon.
   
• upheld the Panel’s finding on Article 5.5, that the higher level of protection on salmon resulted in discrimination or a disguised restriction on international trade.
   
• reversed the Panel’s findings on Article 5.6 because it was based on the heat-treatment requirement, and not on the import ban.
    

Article 21.5 (Compliance) Panel findings:

• Australia had failed to comply by the deadline set by the arbitrator because its new measure on salmon took effect on 19 July 1999, and new measures on other fish (to comply with the consistency requirement) were phased in at later dates.
   
• the requirement that salmon be in a particular consumer-ready form was not based on a risk assessment, and violated Article 5.1.
   
• the definition of consumer-ready product was more trade-restrictive than required, and thus violated Article 5.6.