The WTO Agreement on Sanitary and Phytosanitary Measures

The WTO Agreement on Sanitary and Phytosanitary Measures

Simon Lacey | Last Updated on 21 October 2013

Overview and Structure

1.  Objective and Scope of Application 2.  Principles of the SPS Agreement 3.  Risk Analysis 4.  Other Provisions 5.  Transparency Provisions 6.  Developing Countries 7.  SPS Committee 8.  Dispute Settlement 9.  SPS and Doha 10.  SPS And Indonesia

2

www.uph-‐analy=cs.com

1. Objective and Scope of Application

SPS Agreement 1. Objective and Scope of Application

Two-Fold Objective of the SPS Agreement

§  To recognize the sovereign right of WTO Members to provide the level of health protection they deem appropriate; and

§  To ensure that SPS measures do not represent unnecessary, arbitrary, scientifically unjustifiable, or disguised restrictions on international trade.


4

Scope of the SPS Agreement

Article 1.1 of the SPS Agreement defines the scope of application of the Agreement and provides that:

“This Agreement applies to all sanitary and phytosanitary measures which may, directly or indirectly, affect international trade. Such measures shall be developed and applied in accordance with the provisions of this Agreement.”



5

What is an SPS measure?

To fall under the SPS Agreement’s scope and coverage, a measure must:

§  Be a sanitary or phytosanitary measure; and §  Directly or indirectly affect international trade.



6

What is an SPS Measure? – cont. A sanitary or phytosanitary measure or “SPS measure” is defined in para. 1 of Annex A to the SPS Agreement as 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.



7

What is an SPS Measure? – cont. Paragraph 1 of Annex A of the SPS Agreement provides a non-exhaustive list of SPS measures. Among them:

§  End product criteria; §  Processes and production methods; §  Testing, inspection, certification and approval procedures; §  Quarantine treatments including those associated with the international

transport of animals or plants (or those concerning the materials necessary for their survival during transport);

§  Provisions on relevant statistical methods; §  Sampling procedures and methods of risk assessment and packaging and

labeling requirements that are directly related to food safety.



8

Entities Covered by the SPS Agreement Article 13 of the SPS Agreement provides: Members are fully responsible under this Agreement for the observance of all obligations set forth herein. Members shall formulate and implement positive measures and mechanisms in support of the observance of the provisions of this Agreement by other than central government bodies. Members shall take such reasonable measures as may be available to them to ensure that non-governmental entities within their territories, as well as regional bodies in which relevant entities within their territories are members, comply with the relevant provisions of this Agreement.


9


Temporal Scope of Application §  In spite of the fact that the SPS Agreement came into force on 1

January 1995, all SPS measures in existence before this date are also subject to its provisions, provided they are still in force.

§  This was confirmed by the Panel and Appellate Body decisions in the EC – Beef hormones dispute.


10


Relationship with Other WTO Agreements §  SPS Agreement is not the only WTO agreement of

relevance to measures for the protection of human, animal or plant life or health. The GATT 1994 and the TBT Agreement also contain rules applicable to such measures.

§  Within their respective spheres of application, all three agreements are relevant in determining the WTO-consistency of health measures.


11


Relationship with the TBT Agreement §  As set out in Art. 1.5 of the TBT Agreement, the TBT

Agreement does not apply to SPS measures. §  When a measure is an SPS measure as defined in Annex

A(1) to the SPS Agreement, the SPS Agreement applies to the exclusion of the TBT Agreement, even if the measure would otherwise be considered a “technical regulation, standard or conformity assessment procedure” for purposes of the TBT Agreement.


12


Relationship with the GATT 1994 §  No relationship of mutual exclusivity with the GATT 1994 §  However, Article 2.4 of the SPS Agreement states that

“Sanitary or phytosanitary measures which conform to the relevant provisions of this Agreement shall be presumed to be in accordance with the obligations of the Members under the provisions of GATT 1994 which relate to the use of sanitary or phytosanitary measures, in particular the provisions of Article XX(b).”

§  Article 2.4 thus provides for a (rebuttable) presumption of GATT 1994 consistency of all measures that are in conformity with the SPS Agreement.


13


Relationship with the Agreement on Agriculture §  Both the Agreement on Agriculture and the SPS Agreement were

negotiated as part of an “agriculture package,” which aimed at ensuring that the benefits of liberalized agricultural trade would not be reduced by disguised restrictions or other non-tariff barriers to trade.

§  The Agreement on Agriculture reminds WTO Members of this goal when it provides that “Members agree to give effect to the Agreement on the Application of SPS Measures.”


14


Examples of TBT and SPS Measures TBT measures typically deal with: §  Labeling of composition or quality of

food, drink and drugs;

§  Quality requirements for fresh food;

§  Volume, shape and appearance of packaging;

§  Testing vehicles and accessories;

§  Regulations for ships and ship equipment;

§  Safety regulations for toys.

SPS measures typically deal with: §  Additives in food or drink;

§  Contaminants in food or drink;

§  Certification: food safety, animal or plant health;

§  Processing methods with implications for food safety;

§  Other sanitary requirements for imports;

§  Labeling requirements directly related to food safety and others.



15

2. Principles of the SPS Agreement

Basic Rights and Obligations under the SPS Agreement Article 2 of the SPS Agreement states that WTO Members have the right to adopt appropriate SPS measures that they consider necessary to protect health, provided that they are consistent with the provisions of the SPS Agreement.

SPS Agreement 2. Principles of the SPS Agreement


17

The right to adopt an SPS measure is qualified in three ways (Art. 2.2): §  SPS measures should only be applied to the extent necessary; §  They should either be based on international standards or on

scientific principles and not maintained without sufficient scientific evidence (except as provided by Article 5.7); and

§  SPS measures may not be applied in a manner which would constitute a disguised restriction on international trade.



18


The Scientific Imperative §  Article 2.2 of the SPS Agreement also introduces new scientific

disciplines for the use and maintenance of SPS measures. It requires that:

“any sanitary or phytosanitary measure … [be] based on scientific principles and … not [be] maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.”


19


No Arbitrary or Unjustifiable Discrimination § Article 2.3 of the SPS Agreement states that

“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”


20


No Arbitrary or Unjustifiable Discrimination - cont. §  Three cumulative requirements that must be met for a violation of

Article 2.3 of the SPS Agreement to be established, namely, that: 1.  The measure discriminates between the territories of Members other

than the Member imposing the measure, or between the territory of the Member imposing the measure and another Member;

2.  The discrimination is arbitrary or unjustifiable; and 3.  Identical or similar conditions prevail in the territory of the Members

compared.


21


Use of International Standards Under Article 3 of the SPS Agreement, Members have three autonomous options with regard to international standards, each with its own consequences. Members may choose to: 1)  Base their SPS measures on international standards according to

Article 3.1; 2)  Conform their SPS measures to international standards under Article

3.2; or 3)  Impose SPS measures resulting in a higher level of protection than

would be achieved by the relevant international standard in terms of Article 3.3.


22


Use of International Standards - cont.

Art. 3.1 of the SPS Agreement reads as follows:

“To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.”


23


Use of International Standards - cont. §  Article 3.1 obliges Members to base their SPS measures on

international standards where they exist, except as provided for in Article 3.3.

§  The ‘international standards’ to which Article 3.1 refers are standards set by international organisations, such as: 1.  The Codex Alimentarius Commission with respect to food safety; 2.  The World Organisation for Animal Health (formerly called the

International Office of Epizootics (OIE)) for animal health; and 3.  The Secretariat of the International Plant Protection Convention (IPPC)

with respect to plant health. www.uph-‐analy=cs.com

24




“To harmonize sanitary and phytosanitary measures on as wide a basis as possible, Members shall base their sanitary or phytosanitary measures on international standards, guidelines or recommendations, where they exist, except as otherwise provided for in this Agreement, and in particular in paragraph 3.”


25


Use of International Standards - cont. §  Article 3.2 provides that SPS measures, which ‘conform to’ international

standards, are presumed to be consistent with the SPS Agreement and the GATT 1994.

§  This presumption of consistency is rebuttable. However, the presumption of consistency is designed to create an incentive for Members to conform their SPS measures to international standards, rather than to base them on those standards.


26




“Members may introduce or maintain sanitary or phytosanitary measures which result in a higher level of sanitary or phytosanitary protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, if there is a scientific justification, or as a consequence of the level of sanitary or phytosanitary protection a Member determines to be appropriate in accordance with the relevant provisions of paragraphs 1 through 8 of Article 5 ”


27


Use of International Standards – cont. §  This right to choose measures that deviate from international standards is not

an ‘absolute or unqualified right’, as confirmed by the Appellate Body in EC – Hormones (1998).

§  Two alternative conditions are laid down in Article 3.3, namely, that:

1.  Either there must be a scientific justification for the SPS measure (defined in a footnote as a scientific examination and evaluation in accordance with the rules of the SPS Agreement); or

2.  The measure must be a result of the level of protection chosen by the Member in accordance with Articles 5.1 to 5.8.


28

3. Risk Analysis

SPS Agreement 3. Risk Analysis

WTO Members do not always base their measures on internationally-agreed standards, for several reasons:

§  The three sister organizations may have not elaborated international standards for every aspect of food safety, animal and plant health;

§  Members may desire to adopt SPS measures that achieve a higher level of health protection than that achieved by the relevant international standards.


30



31

Risk Assessment and Risk Management §  Risk assessment refers to the scientific process of identifying the existence

of a risk and establishing the likelihood that the risk may actually materialise according to the measures that could be applied to address the risk.

§  Risk management’, by contrast, is the policy-based process of determining the level of protection a country wants to ensure in its territory and choosing the measure that will be used to achieve that level of protection



“Members shall ensure that their sanitary or phytosanitary measures are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health, taking into account risk assessment techniques developed by the relevant international organizations. ”


32

Annex A(4) of the SPS Agreement recognizes two distinct types of risk assessment:

§  The first applies to SPS measures the aim of which is to protect against the establishment or spread of a pest or disease.

§  The second applies to any measures designed to protect humans and animals from so-called ‘food-borne’ risks.



33

A cumulative three-part test has developed from the case law on the proper way to conduct a risk assessment for ‘disease or pest related’ risks: §  WTO Members should identify the specific diseases or pests that they want to

keep out, as well as the potential biological and economic risks involved; §  WTO Members should evaluate the likelihood of entry, establishment or

spread of these diseases, along with the potential economic and biological cost; and

§  WTO Members should evaluate the likelihood of entry, establishment or spread of pests or diseases according to the SPS measures which might be applied.



34


Furthermore, eight general observations can be made with respect to the requirements for risk assessments, as identified by the Appellate Body in its case law:

1.  A risk assessment must show proof of an actual risk, not just a theoretical uncertainty; 2.  A risk assessment does not require the risk assessed to be quantified (i.e. expressed numerically), so that the risk

may be expressed either quantitatively or qualitatively; 3.  A risk assessment may go beyond controlled laboratory conditions and take account of the actual potential for

adverse effects in the ‘real world where people live and work and die’; 4.  The risk assessment must be specific to the particular type of risk at issue in the case and not merely show a

general risk of harm; 5.  Article 5.1 does not oblige Members to carry out their own risk assessments. Instead, they may rely on risk

assessments carried out by other Members or an international organisation; 6.  The phrase ‘as appropriate to the circumstances’ in Article 5.1 does not alleviate the obligation of Members to base

their SPS measures on a risk assessment, but relates to the way such risk assessment is carried out; 7.  Ttaking into account risk assessment techniques developed by the relevant international organisations’ in Article

5.1 does not mean that a risk assessment must be based on or conform to such techniques, nor does it mean that compliance with such techniques alone suffices to show that the risk assessment is consistent with the requirements under the SPS Agreement

8.  since Article 5.1 is to be read together with Article 2.2, which requires that SPS measures not be ‘maintained’ without sufficient scientific evidence.


35

Article 5.2 of the SPS Agreement explains what kinds of information shall be taken into account when undertaking a risk assessment:

§  Available scientific evidence; §  Relevant processes and production methods; §  Relevant inspection, sampling and testing protocols; §  Prevalence of specific diseases or pests; §  Existence of pest- or disease-free areas; §  Relevant ecological and environmental conditions; and §  Quarantine or other treatment.



36

Article 5.3 of the SPS Agreement identifies the economic factors which shall be taken into account when undertaking a risk assessment for animal or plant health: §  The potential damage in terms of loss of production or sales in

the event of the entry, establishment or spread of a pest or disease;

§  The costs of control or eradication in the territory of the importing Member; and

§  The relative cost-effectiveness of alternative approaches to limiting risks.



37

The Appropriate Level of Protection

§  From the outset, risk management involves a decision on the “appropriate level of protection” defined in paragraph 5 of Annex A to the SPS Agreement as:

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.



38


Art. 5.4 of the SPS Agreement reads as follows: “Members should, when determining the appropriate level of sanitary or phytosanitary protection, take into account the objective of minimizing negative trade effects ”


39


Art. 5.5 of the SPS Agreement reads as follows: “With the objective of achieving consistency in the application of the concept of appropriate level of sanitary or phytosanitary protection against risks to human life or health, or to animal and plant life or health, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade. Members shall cooperate in the Committee, in accordance with paragraphs 1, 2 and 3 of Article 12, to develop guidelines to further the practical implementation of this provision. In developing the guidelines, the Committee shall take into account all relevant factors, including the exceptional character of human health risks to which people voluntarily expose themselves ”


40

The Panel in the EC-Hormones dispute adopted (and the Appellate Body later accepted) a three-part test outlining the elements of a violation of Article 5.5 of the SPS Agreement: §  Whether the Member concerned has set different levels of protection in

different situations; ; §  Whether these different levels of protection show arbitrary or unjustifiable

differences in their treatment of different situations; and ; §  Whether these arbitrary or unjustifiable differences lead to discrimination

or disguised restrictions on trade.



41


Art. 5.6 of the SPS Agreement reads as follows: “Without prejudice to paragraph 2 of Article 3, when establishing or maintaining sanitary or phytosanitary measures to achieve the appropriate level of sanitary or phytosanitary protection, Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility.” Footnote: A measure is not more trade-restrictive than required unless there is another measure, reasonably available taking into account technical and economic feasibility, that achieves the appropriate level of sanitary or phytosanitary protection and is significantly less restrictive to trade.


42

Not more trade-restrictive measures than necessary:

On the basis of this footnote, the panel in Australia – Salmon (1998) identified a three-tier test, which was later upheld by the Appellate Body. Pursuant to this test, an SPS measure is more trade-restrictive than required (and thus inconsistent with Article 5.6) only if there is an alternative SPS measure which:

1.  Is reasonably available, taking into account technical and economic feasibility; 2. Achieves the Member’s appropriate level of protection; and 3. Is significantly less trade-restrictive than the contested measure.

Only when all three of these cumulative requirements are satisfied will an SPS measure be inconsistent with Article 5.6.



43

Precautionary Principle Article 5.7 of the SPS Agreement reads as follows: “In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time. “



44

Precautionary Principle and Provisional Measures Based on Art. 5.7, four cumulative requirements for provisional measures were identified by the panel, and confirmed by the Appellate Body, in Japan – Agricultural Products II (1999) and US/Canada – Continued Suspension (2008), namely, that the measure must: (1)  Be imposed in respect of a situation where relevant scientific evidence is

insufficient; (2)  Be adopted on the basis of available pertinent information; (3)  Not be maintained unless the Member seeks to obtain the additional

information necessary for a more objective assessment of risk; and (4)  Be reviewed accordingly within a reasonable period of time.



45

4. Other Provisions

Equivalence in the SPS Agreement § Because different SPS measures may reasonably address the same risk to human, animal or plant life or health, the principle of equivalency is central to the SPS Agreement. § Article 4 of the SPS Agreement provides that WTO Members must accept the SPS measures of other Members as equivalent, even if these measures differ from their own or from those used by other WTO Members trading in the same product, if the exporting Member objectively demonstrates to the importing Member that they achieve the importing Member’s appropriate level of SPS protection.

SPS Agreement 4. Other Provisions


47

Equivalence in the SPS Agreement - cont. §  In October 2001, the SPS Committee adopted the Decision on the

Implementation of Article 4 of the SPS Agreement (G/SPS/19). The Decision was last revised on 23 July 2004.

§  This Decision provides guidance for governments negotiating the recognition of equivalent measures or products, for example regarding information exchange.



48

Mutual Recognition Agreements §  Article 4.2 encourages the conclusion of equivalence agreements

by obliging WTO Members to enter into consultations, upon request, with the aim of achieving bilateral and multilateral agreements on the recognition of equivalence of specified SPS measures.

§  However, there is no obligation to actually conclude such agreements and in practice negotiation is difficult and few agreements have been reached so far.



49

Examples of Equivalency Agreements

Country Type Year EC - US Veterinary Equivalence Agreement 1999 EC -Switzerland

Agreement on Trade in agricultural products 1999

EC - Canada Veterinary Equivalence Agreement 1998 EC – New Zealand

Veterinary Equivalence Agreement 1997



50

Adaptation to Regional Conditions

§  As a recognition that climate, pest prevalence and risks from diseases differ from place to place, Article 6 of the SPS Agreement provides that WTO Members must ensure that their SPS measures are adapted to the sanitary and phytosanitary characteristics of given areas.

§  Article 6 of the SPS Agreement also instructs WTO Members to recognize the concepts of pest or disease free areas and areas where these risks are very minimal.



51

Control, Inspection and Approval Procedures

§  Article 8 provides that WTO Members must follow certain rules (found in Annex C to the SPS Agreement) with respect to any procedures to check and ensure the fulfillment of SPS measures.

§  The basic requirement of the Annex C of the SPS Agreement is that any procedures to enforce the SPS Agreement should not be less favorable for imported products than they are for domestic goods, and should be no more burdensome than what is necessary to ensure compliance.

§  The provisions of Annex C oblige WTO Members to be fair, reasonable and non-discriminatory.



52

5. Transparency Provisions

Transparency

§  The transparency obligations of the SPS Agreement are contained in Article 5.8, Article 7 and Annex B.

§  In addition, the SPS Committee has elaborated recommended procedures for implementing the transparency obligations of the SPS Agreement (G/SPS/7/Rev.3).

SPS Agreement 5. Transparency Provisions


54

Explanation of SPS Measures under Article 5.8 of the SPS Agreement

§  When a WTO Member is concerned that an SPS measure adopted by another Member is not based on an international standard and might constrain its exports, it may ask the WTO Member adopting the measure for an explanation.

§  Such explanation must be provided, although no time-limit or format is prescribed by the SPS Agreement.



55

Publication of SPS measures (Art. 7 and Annex B) §  All SPS measures that have been adopted have to be published

promptly, so that interested WTO Members may become acquainted with them.

§  Except for urgent situations, WTO Members have to allow a reasonable period of time between the publication of a measure and its entry into force in order to allow exporters, particularly Developing Countries, to adapt their products and methods of production to the new requirements.



56


Notifications by Members §  As of 30 September 2011, 102 out of then 153 Members (or 67 per cent) had submitted

at least one notification to the WTO. §  While the number of notifications circulated by Members has increased significantly in

recent years, the failure to notify (or notify correctly) new, or changes to, SPS measures is still a frequently raised concern at meetings of the SPS Committee.

§  In response, in 2011, the WTO Secretariat launched a new online SPS Notification Submission System. During 2011, 1,388 notifications were submitted, bringing the total number of notifications since the entry into force of the SPS Agreement in 1995 to 13,644.

§  Members, which had not submitted any notification, included nineteen developing countries, twenty-one least-developed countries, and one developed country.


57

Obligation of WTO Members to Notify:

§  SPS Measures; §  National Notification Authorities; §  Enquiry Points.



58

Notification of SPS Measures: Members have the obligation to notify SPS measures if they:

§  Are new or changed; and §  Are not based on an existing international standard or no relevant

international standard exists; and

§  Have a significant effect on trade.



59

National Notification Authorities § Annex B(3) and (4) of the SPS Agreement oblige WTO Members to create the necessary infrastructure to carry out their transparency obligations by establishing a National Notification Authority, responsible for the implementation of notification procedures, and an ‘Enquiry Point’, responsible for answering all reasonable questions and providing relevant documents upon request § Members have to designate a single central government authority responsible for the implementation of the notification obligations. This includes:

-  Notifying draft measures; -  Providing copies of the proposed regulations; -  Receiving comments and discussing them upon request; -  Taking the comments and the results of discussions into account.

§ The WTO Secretariat regularly updates and circulates lists of these authorities, under official document numbers G/SPS/NNA/– and G/SPS/ENQ/–.



60

Enquiry Points §  In addition to the ‘publication’ and ‘prior notification’

requirements Annex B also provides for an ‘Enquiry Point’ requirement.

§  Each WTO Member has to ensure that an Enquiry Point exists which is responsible for the provision of answers to all reasonable questions related to SPS measures from other WTO Members.



61

The Enquiry Point is responsible for the provision of answers to all reasonable questions regarding: §  All existing and proposed SPS measures; §  Control and inspection procedures, production and quarantine

treatment, pesticide tolerance and food additive approval procedures; §  Risk assessment procedures, factors taken into consideration, as well

as the determination of the appropriate level of protection; §  Membership and participation in international and regional sanitary and

phytosanitary organizations, as well as in bilateral and multilateral agreements and arrangements (including on equivalence), and the texts of such agreements and arrangements.


62



SPS Information Management System

§  To assist Members in the formidable task of managing the flow of information regarding notified SPS measures, in 2007, the WTO Secretariat launched the SPS Information Management System, which has since remained available on a dedicated website.


63



64


SPS Information Management System

§ In addition to the ‘publication’ and ‘prior notification’ requirements Annex B also provides for an ‘enquiry point’ requirement. § Annex B(3) and (4) of the SPS Agreement oblige WTO Members to create the necessary infrastructure to carry out their transparency obligations by establishing a National Notification Authority, responsible for the implementation of notification procedures, and an ‘Enquiry Point’, responsible for answering all reasonable questions and providing relevant documents upon request


65

6. Developing Countries

Provisions of the SPS Agreement concerning Developing Countries

Articles 9 and 10 of the SPS Agreement contain provisions related to Developing Countries: §  Article 9 of the SPS Agreement, which deals with technical

assistance, recognizes the difficulty of Developing Countries to adjust to, and comply with, the SPS measures necessary to achieve the appropriate level of protection in export markets.

§  Article 10 instructs WTO Members to take account of the special needs of Developing Countries and to give them longer time frames for compliance.


67

SPS Agreement 6. Developing Countries

Article 9.1 of the SPS Agreement specifies that SPS technical assistance may be in the areas of: §  Processing technologies, §  Research and infrastructure, and §  In the establishment of national regulatory bodies.


68


Technical assistance of importing WTO Members

§  Article 9.2 of the SPS Agreement encourages importing WTO Members to provide technical assistance especially when substantial investments are required for an exporting Developing Country Member to fulfill its SPS requirements.

§  The aim is to permit the Developing Country WTO Member to maintain and expand its market access opportunities for the product involved.


69


SPS technical assistance may take the form of: §  Advice; §  Credits; §  Donations and grants, including for the purpose of seeking

technical expertise; §  Training; and §  Equipment.


70


Article 10 of the SPS Agreement contains specific provisions on “special and differential treatment” in sanitary and phytosanitary measures:

§  Article 10.1 urges to take account of special needs of Developing Countries;

§  Article 10.2 provides longer time-frames for compliance; §  Article 10.3 provides time-limited exceptions; §  Article 10.4 encourages participation in the relevant international.

In addition, Article 14 provides for a delay (transition period) in application of the SPS Agreement.


71


The SPS Committee adopted a Decision on Special Treatment (document G/SPS/33 of 2 November 2004) strengthening importing countries’ commitments to provide an opportunity for exporting Developing Countries to seek revisions or ask for technical assistance when new or revised measures affecting imports are proposed or introduced.


72


7. SPS Committee

§  The SPS Committee meets three times per year at the WTO headquarters in Geneva.

§  The SPS Committee takes its decisions by consensus. At the WTO, consensus is reached “if no Member, present at the meeting when the decision is taken, formally objects to the proposed decision.”


74

SPS Agreement 7. SPS Committee

Specific Trade Concerns – issues raised at the SPS Committee

Food Safety 25%Animal Health 40%Plant Health 30%Others 5%


75




76


77


78

8. Dispute Settlement

§  Since the establishment of the WTO dispute settlement system, 40 alleged violations of the SPS Agreement have been referred to the WTO for adjudication.

§  Most disputes have been settled by the parties or have become inactive, but in certain cases they have resulted in landmark decisions which have provided authoritative interpretations of the SPS Agreements.


80

SPS Agreement 8. Dispute Settlement


To date, WTO Members have been found to have acted inconsistently with their obligations under the SPS Agreement in nine disputes. §  EC – Hormones (1998); §  Australia – Salmon (1998) and Australia – Salmon (Article 21.5 – Canada) (2000); §  Japan – Agricultural Products II (1999); §  Japan – Apples (2003); Japan – Apples (Article 21.5 – US) (2005); §  EC – Approval and Marketing of Biotech Products (2006); §  US – Poultry (China) (2010); §  Australia – Apples (2010). §  US/Canada – Continued Suspension (2008)


81

EC – Hormones (DS26, DS48)

Measure at Issue EC prohibition on the placing on the market and the importation of meat and meat products treated with certain hormones

Product at Issue Meat and meat products treated with hormones for growth purposes.



82


EC – Hormones (DS26, DS48) – cont. Summary of Key Panel/AB Findings SPS Art. 3.1 (international standards): The AB rejected the Panel’s interpretation and said that the requirement that SPS measures be “based on” international standards, guidelines or recommendations under Art. 3.1 does not mean that SPS measures must “conform” to such standards. Relationship between SPS Articles 3.1/3.2 and 3.3 (harmonization): The AB rejected the Panel’s interpretation that Art. 3.3 is the exception to Articles 3.1 and 3.2 assimilated together and found that Articles 3.1, 3.2 and 3.3 apply together, each addressing a separate situation. Accordingly, it reversed the Panel’s finding that the burden of proof for the violation under Art. 3.3, as a provision providing the exception, shifts to the responding party. SPS Art. 5.1 (risk assessment): While upholding the Panel’s ultimate conclusion that the EC measure violated Art. 5.1 (and thus Art. 3.3) because it was not based on a risk assessment, the Appellate Body reversed the Panel’s interpretation, considering that Art. 5.1 requires that there be a “rational relationship” between the measure at issue and the risk assessment. SPS Art. 5.5 (prohibition on discrimination and disguised restriction on international trade): The Appellate Body reversed the Panel's finding that the EC measure, through arbitrary or unjustifiable distinctions, resulted in "discrimination or a disguised restriction of international trade" in violation of Art. 5.5, noting: (i) the evidence showed that there were genuine anxieties concerning the safety of the hormones; (ii) the necessity for harmonizing measures was part of the effort to establish a common internal market for beef; and (iii) the Panel's finding was not supported by the "architecture and structure" of the measures.



83



US/Canada – Continued Suspension (DS320, 321) Measure at Issue

The continued suspension of WTO concessions by the United States and Canada resulting from the EC – Hormones disputes.

Product at Issue A number of products affected by the suspension of concessions by the United States and Canada.


84

US/Canada – Continued Suspension (DS320, 321) – cont. Summary of Key Panel/AB Findings

Risk assessment and provisional measure (SPS Arts. 5.1 and 5.7): The Appellate Body reversed the Panels' findings that the import ban relating to oestradiol-17ß was not based on a risk assessment as required by Art. 5.1, and that the provisional import ban relating to the other five hormones did not meet the requirements of Art. 5.7. However, the Appellate Body was unable to complete the analysis and therefore made no findings as to the consistency or inconsistency of the definitive and provisional import bans with Arts 5.1 and 5.7.


85


Australia – Salmon (DS18)

Measure at Issue Australia's import prohibition of certain salmon from Canada.

Product at Issue Fresh, chilled or frozen ocean-caught Canadian salmon and certain other Canadian salmon.



86


Australia – Salmon (DS18) – cont. Summary of Key Panel/AB Findings SPS Art. 5.1 (risk assessment): The Appellate Body, although reversing the Panel's finding because the Panel had examined the wrong measures (i.e. heat-treatment requirement), still found that the correct measure at issue – Australia's import prohibition – violated Art. 5.1 (and, by implication, Art. 2.2) because it was not based on a "risk assessment" requirement under Art. 5.1.. SPS Art. 5.5 (prohibition on discrimination and disguised restriction on international trade): The Appellate Body upheld the Panel's finding that the import prohibition violated Art. 5.5 (and, by implication Art. 2.3) as "arbitrary or unjustifiable" levels of protection were applied to several different yet comparable situations so as to result in "discrimination or a disguised restriction" (i.e. more strict restriction) on imports of salmon, compared to imports of other fish and fish products such as herring and finfish.. SPS Art. 5.6 (appropriate level of protection): The Appellate Body reversed the Panel's finding that the heat-treatment violated Art. 5.6 by being "more trade-restrictive than required", because heat treatment was the wrong measure. The Appellate Body, however, could not complete the Panel's analysis of this issue under Art. 5.6 due to insufficient facts on the record. (In this regard, the Appellate Body said that it would complete the Panel's analysis in a situation like this "to the extent possible on the basis of the factual findings of the Panel and/or of undisputed facts in the Panel record".)



87



Australia – Salmon (DS18 – Article 2.15 Canada)

Measures taken to Comply with DSB Recommendations and Rulings

Australia published the "1999 Import Risk Analysis" which included additional analyses that considered the health risks associated with the importation into Australia of fresh, chilled and frozen salmon. Australia also modified its legislation on the quarantine of imports by allowing, pursuant to permits, non-heated salmon to be imported and released from Australian quarantine facilities in cases where the salmon was in a "consumer-ready" form. Similar regulations were adopted, around the same time, regarding imports of herring and finfish.


88

Australia – Salmon (DS18 – Article 2.15 Canada) – cont. Summary of Key Panel Findings

SPS Art. 5.1 (risk assessment): The Panel found that Australia was in violation of Art. 5.1 and by implication, therefore, of the general obligations of Art. 2.2. Reiterating the three requirements laid down previously by the Appellate Body that are essential to constitute a "risk assessment", the Panel noted that for a measure to be "based on" a risk assessment there needs to be a "rational relationship" between the measure and the risk assessment, and that none of the experts consulted by the Panel could find any justification in Australia's risk assessment measure for the requirement that salmon be "consumer-ready". Based on the same rationale, the Panel found that the ban on the imports of salmon enacted by the Tasmanian Government was also in violation of Arts. 5.1 and 2.2.

SPS Art. 5.5 (prohibition on discrimination and disguised restriction on international trade): The Panel concluded that Australia was not in violation of Art. 5.5, as it found that although Australia was employing different levels of protection to different, but sufficiently comparable, situations, the different treatment was scientifically justified, and not arbitrary or unjustifiable and the different treatment was thus not a disguised restriction on international trade.

SPS Art 5.6 (appropriate level of protection - alternative measures): Upon examining the Australian measure in light of the three elements needed to demonstrate an inconsistency with Art. 5.6, the Panel found that Australia had acted inconsistently with Art. 5.6. The Panel found that, taking into account the technical and economic feasibility of alternative measures (first element), there were other less-trade restrictive measures available to Australia that would provide the appropriate level of protection (second element), and these alternative measures (i.e. requirement for "special packaging" as an alternative to the current "consumer-ready" requirement) would lead to significantly more imported salmon in the Australian market (third element).



89


Japan – Agricultural Products (DS76)

Measure at Issue Varietal testing requirement (Japan's Plant Protection Law), under which the import of certain plants was prohibited because of the possibility of their becoming potential hosts of codling moth.

Product at Issue Eight categories of plants originating from the United States, namely, apricots, cherries, plums, pears, quince, peaches (including nectarines), apples and walnuts.



90


Japan – Agricultural Products (DS76) – cont. Summary of Key Panel/AB Findings SPS Art. 2.2 (sufficient scientific evidence): The Appellate Body upheld the Panel's finding that Japan's varietal testing requirement was maintained without sufficient scientific evidence in violation of Art. 2.2. SPS Art. 5.7 (provisional measure): The Appellate Body upheld the Panel's finding that the varietal testing requirement was not justified under Art. 5.7 because Japan did not meet all the requirements for the adoption and maintenance of a provisional SPS measure as set out in Art. 5.7. SPS Art. 5.6 (appropriate level of protection - alternative measures): Having found that the United States, as a complainant, did not claim and, therefore, could not have established a prima facie case of Japan's inconsistency with the existence of an alternative measure (determination of sorption levels) under Art. 5.6, the Appellate Body reversed the Panel's finding that Japan acted inconsistently with Art. 5.6. Then, as to the alternative measure proposed by the United States – i.e. testing on a product-by-product basis, the Appellate Body upheld the Panel's finding that the United States failed to prove that Japan's measure was "more trade-restrictive than required" in relation to the alternative measure proposed by the United States (testing by product) and thus that it had violated Art. 5.6 because testing by product did not achieve Japan's appropriate level of protection. SPS Art. 5.1 (risk assessment): As the Appellate Body found that the Panel improperly applied judicial economy to the US claim under Art. 5.1 in relation to apricots, pears, plums and quince – the four products that were not examined by the Panel, it completed the legal analysis and found that Japan's measure violated Art. 5.1 for these four products as it was not based on a proper risk assessment.



91


Japan – Apples (DS245)

Measure at Issue Certain Japanese measures restricting imports of apples on the basis of concerns about the risk of transmission of fire blight bacterium..

Product at Issue Apples from the United States.



92


Japan – Apples (DS245) – cont. Summary of Key Panel/AB Findings SPS Art. 2.2 (sufficient scientific evidence): The Appellate Body upheld the Panel's finding that the measure was maintained "without sufficient scientific evidence" inconsistently with Art. 2.2, as there was a clear disproportion (and thus no rational or objective relationship) between Japan's measure and the "negligible risk" identified on the basis of the scientific evidence. SPS Art. 5.7 (provisional measure): The Appellate Body upheld the Panel's finding that the measure was not a provisional measure justified within the meaning of Art. 5.7, as the measure was not imposed in respect of a situation "where relevant scientific evidence is insufficient". Having noted that the pertinent question under Art. 5.7 is whether 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 Art. 5.1 and as defined in Annex A of the SPS Agreement, the Appellate Body found that in light of the Panel's finding of a large quantity of high-quality scientific evidence describing the risk of transmission of fire blight through apple fruit, there was "the body of available scientific evidence" in this case that would allow "the evaluation of the likelihood of entry, establishment or spread" of fire blight in Japan through apples exported from the United States.



93


Japan – Apples (DS245) – cont. Summary of Key Panel/AB Findings SPS Art. 5.1 (risk assessment): The Appellate Body upheld the Panel's finding that the measure was not based on a risk assessment as required under Art. 5.1 because the pest risk analysis relied on by Japan (i.e. "1999 PRA") failed to evaluate (i) the likelihood of entry, establishment or spread of fire blight specifically through apple fruit; and (ii) the likelihood of entry "according to the SPS measures that might be applied". In this regard, the Appellate Body noted that the obligation to conduct an assessment of "risk" under Art. 5.1 is not satisfied merely by a general discussion of the disease sought to be avoided by the imposition of the SPS measure, rather an evaluation of the risk must connect the possibility of adverse effects with an antecedent or cause (i.e. in this case, transmission of fire blight "through apple fruit"). Also, the Appellate Body upheld the Panel's view that the definition of "risk assessment" 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, not merely measures which are being currently applied.



94


EC – Approval and Marketing of Biotech Products (DS291, DS292, DS293)

Measure at Issue (i) Alleged general EC moratorium on approvals of biotech products; (ii) EC measures allegedly affecting the approval of specific biotech products; and (iii) EC member State safeguard measures prohibiting the import/marketing of specific biotech products within the territories of these member States.

Product at Issue Agricultural biotech products from the United States, Canada and Argentina



95


EC – Approval and Marketing of Biotech Products (DS291, DS292, DS293) – cont. Summary of Key Panel/AB Findings SPS Arts. 5.1 (risk assessment) and 2.2 (sufficient scientific evidence): The Panel found that the EC decision to apply a general moratorium was a decision concerning the application/operation of approval procedures, i.e., a procedural decision to delay final substantive approval decisions. It was not applied for achieving the EC level of sanitary or phytosanitary protection and, hence, was not an "SPS measure" subject to Arts. 5.1 or 2.2. SPS Annex C(1)(a) and Art. 8 (control, inspection and approval procedures): The Panel found that the general moratorium led to undue delay in the completion of the EC approval procedure conducted in respect of at least one biotech product at issue and thereby to the European Communities acting inconsistently with Annex C(1)(a) and, by implication, Art. 8. SPS Annex C(1)(a) and Art. 8 (control, inspection and approval procedures): The Panel found that in 24 of the 27 product-specific approval procedures it examined, the procedure had not been completed without undue delay. In respect of these procedures, the European Communities had, therefore, acted inconsistently with Annex C(1)(a) and, by implication, Art. 8. SPS Arts. 5.1, 2.2 and 5.7 (provisional measure): According to the Panel, the record did not indicate that there was insufficient evidence to conduct a risk assessment within the meaning of Art. 5.1 and Annex A(4) for the biotech products subject to safeguard measures. As a result, Arts. 5.1 and 2.2 were applicable. In this regard, the Panel found that none of the safeguard measures at issue were based on a risk assessment as required under Art. 5.1 and defined in Annex A(4). By maintaining measures contrary to Art. 5.1, the European Communities had, by implication, also acted inconsistently with Art. 2.2.


96


US – Poultry (China) (DS392)

Measure at Issue

Section 727 of the Agriculture Appropriations Act of 2009 which prohibited the use of funds to establish or implement a rule allowing poultry products from China to be imported into the United States.

Product at Issue Poultry products from China.



97


US – Poultry (China) (DS392) – cont. Summary of Key Panel/AB Findings

SPS Articles 1, 5.1, 5.2 and 2.2 (scope of SPS measures, risk assessment, sufficient scientific evidence): The Panel found that Section 727 satisfied the two conditions in Art. 1 for a measure to be considered an SPS measure under the SPS Agreement. The Panel concluded that Section 727 was inconsistent with Arts. 5.1 and 5.2 because it was not based on a risk assessment that took into account the factors set forth in Art. 5.2. It was also found inconsistent with Art. 2.2 because it was maintained without sufficient scientific evidence.

SPS Arts. 5.5, 2.3 (prohibition on discrimination) and 8 (control, inspection and approval procedures): The Panel found that Section 727 was inconsistent with Art. 5.5 because the distinction in the appropriate levels of protection for poultry products from China and for poultry products from other WTO Members was arbitrary or unjustifiable and that such a distinction resulted in discrimination against China. The inconsistency of Section 727 with Art. 5.5 necessarily implied its inconsistency with Art. 2.3. The Panel concluded that Section 727 was inconsistent with Art. 8 because it had caused an undue delay in the Food Safety and Inspection Service approval procedures.


98


Australia – Apples (DS367)

Measure at Issue

Certain Australian measures restricting the importation of New Zealand apples based on concerns about the risk of entry, establishment and spread of the fire blight bacterium (Erwinia amylovora), the fungus European canker (Neonectria galligena), and apple leafcurling midge ("ALCM") (Dasineura mali).

Product at Issue Apples from New Zealand.



99


Australia – Apples (DS367) – cont. Summary of Key Panel/AB Findings SPS Annex A(1) (SPS measures): The Appellate Body upheld the Panel's finding that the 16 measures at issue, both as a whole and individually, constituted SPS measures within the meaning of Annex A(1) to the SPS Agreement.

SPS Arts. 2.2, 5.1 and 5.2 (risk assessment): The Panel found that specific measures regarding each of the three pests at issue, as well as the "general" measures relating to these three pests, were inconsistent with Arts. 5.1 and 5.2, and that, by implication, these measures were also inconsistent with Art. 2.2 of the SPS Agreement. Australia appealed these findings only in regard to two of the three pests (fire blight and ALCM). The Appellate Body upheld the Panel's above findings regarding the two pests and the general measures relating to these two pests.

SPS Arts. 5.5 and 2.3 (prohibition on discrimination and disguised restriction on international trade): The Panel found that New Zealand failed to demonstrate that the measures at issue were inconsistent with Art. 5.5 and, consequently, also failed to demonstrate inconsistency with Art. 2.3 of the SPS Agreement.


100


Australia – Apples (DS367) – cont. Summary of Key Panel/AB Findings SPS Art. 5.6 (appropriate level of protection - alternative measures): The Panel found that Australia's measures relating specifically to the three pests at issue were inconsistent with Art.5.6, and that New Zealand failed to demonstrate that the three "general" measures are inconsistent with Art. 5.6. Australia appealed these findings only in regard to two of the three pests (fire blight and ALCM). The Appellate Body reversed the Panel's findings of inconsistency in regard to the measures relating to these two pests, but was unable to complete the legal analysis of New Zealand's claim.

SPS Art. 8 and Annex C(1)(a) (control, inspection and approval procedures): The Appellate Body reversed the Panel's finding that New Zealand's claim under Annex C(1)(a) and its consequential claim under Art. 8 fell outside of the Panel's terms of reference. In completing the analysis, the Appellate Body found that New Zealand had not established a violation of Annex C(1)(a) and Art.8.


101


9. Doha and SPS Agreement

Doha and SPS issues:

§  There is no specific mandate in the Doha Declaration with respect to negotiations on the SPS Agreement.

§  However, implementation of various WTO Agreements by Developing Countries has been addressed by the Doha Decision WT/MIN(01)/17.


103

SPS Agreement 10. Doha and SPS Agreement

Doha and SPS issues §  Doha Decision on Implementation-Related Issues and Concerns

(WT/MIN(01)/17) dated 14 November 2001: •  Longer time-frame for developing countries to comply with other countries’ new

SPS measures; •  “Reasonable interval” between publication of a country’s new SPS measure

and its entry into force; •  Equivalence; •  Review of the SPS Agreement; •  Developing countries’ participation in setting international SPS standards; •  Financial and technical assistance


104

SPS Agreement 10. Doha and SPS Agreement

10. SPS and Indonesia

SPS Agreement 11. SPS and Indonesia

Trade Policy Review 2013 Over the review period, specific concerns have been raised in the SPS Committee about: §  Import restrictions on pork products due to influenza A/H1N1 (raised by Mexico

and supported by Australia, Brazil, Canada, the Dominican Republic, and the United States);

§  New meat import conditions (raised by the European Union); import restrictions on poultry meat (raised by Brazil);

§  Import restrictions on beef and recognition of the principle of regionalization (raised by Brazil); and

§  Indonesia's port closure (raised by the United States and supported by Australia, Canada, Chile, the EU, Japan, the Republic of Korea, New Zealand, and South Africa).


106

Want to Know More?

Peter van den Bossche & Werner Zdouc The Law and Policy of the World Trade Organization Cambridge University Press 2013 Chapter 14

107

Australian Department of Agriculture, Fisheries and Forestry

UNCTAD

Michael Friis Jensen Reviewing the WTP

Agreement A Developing Country

Perspective 2002

www.uph-‐analy+cs.com 108

The WTO Agreement on Sanitary and Phytosanitary Measures

Technology

Transcript of The WTO Agreement on Sanitary and Phytosanitary Measures