What's New?
 - Sitemap - Calendar
Trade Agreements - FTAA Process - Trade Issues 

espa�ol - fran�ais - portugu�s
Search

World Trade
Organization

WT/DS76/AB/R
22 February 1999
(99-0668)
Original: English

Japan - Measures Affecting Agricultural Products

Report of the Appellate Body

(Continued)


3. Findings on Apricots, Pears, Plums and Quince

50. Japan submits that the claim of error by the United States in respect of apricots, pears, plums and quince is a factual claim not subject to appellate review. Japan states that the United States' claim can be reduced to an argument that the absence of evidence implying presence of varietal difference in apricots, pears, plums and quince would be sufficient to establish a prima facie case. As such, this claim challenges factual evaluation of the evidence by the Panel and does not raise any legal issue. Japan argues further that the absence of scientific evidence in regard to these commodities does not constitute any basis for a prima facie case. In Japan's opinion, the complaining party should and can establish that such proof or testing is not necessary. Being required to do so does not raise the problem of proving the negative. Japan argues that the case that the United States purports to make is not a prima facie case, so that in the absence of an affirmative showing by the United States, Japan should not be required to make an affirmative defence.

51. With respect to apricots, pears, plums and quince, no finding of inconsistency with Article 5.6 can be made. Since there is no relevant data, it is impossible to find an alternative which would achieve Japan's appropriate level of protection.

4. Article 5.1 of the SPS Agreement

52. Japan submits that it is fully compliant with the requirements of a risk assessment, having evaluated the likelihood of entry, establishment or spread of the codling moth in Japan as described in its 1996 Pest Risk Assessment of Codling Moth. Japan submits that this risk assessment was conducted in accordance with the FAO Guidelines for Pest Risk Analysis. According to Japan, its risk assessment considered the likelihood of entry, establishment or spread of the pest due to possible non-efficacy, to the extent that relevant scientific evidence was available.

53. Japan states further that it is impossible to make any finding under Article 5.1 with regard to apricots, pears, plums and quince because there is neither relevant data nor a treatment.

5. Article 8 and Paragraph 1(c) of Annex C, of the SPS Agreement

54. Japan argues that it did not claim that Article 2.2 of the SPS Agreement would not apply to an information requirement. Japan's argument is that the type or characterisation of an SPS measure will affect the question of sufficiency of scientific evidence under Article 2.2.

55. Japan also notes that the United States' claim that Japan's varietal testing requirement is in fact unnecessary was clearly contradicted by the Panel. According to Japan, the Panel indicated, in relation to Article 5.6, that it was not convinced that there was sufficient evidence before it that testing by product would achieve Japan's level of protection for any of the products in issue.

III. Arguments of the Third Participants

A. Brazil

56. With regard to Article 2.2 of the SPS Agreement, Brazil disagrees with Japan's submission that the varietal testing requirement is an information requirement which should be found to be maintained with sufficient scientific evidence within the meaning of Article 2.2. In Brazil's view, the phrase "sufficient scientific evidence" means that there has to be sufficient evidence to support a Member's SPS measure. Brazil also objects to Japan's attempt to compare its varietal testing requirement with the practices of the Codex Alimentarius concerning toxicological testing of any new food additive.

57. On the issue of the requirements of Article 5.7 of the SPS Agreement, Brazil submits that Japan is incorrect in stating that it suffices to meet the requirements of the first sentence of Article 5.7. In Brazil's view, the Panel was correct to find that Japan did not fulfill two of the requirements under Article 5.7 and was not, therefore, entitled to the exception provided for in that provision.

58. With regard to Article 5.6 of the SPS Agreement, Brazil submits that the Panel erred in not finding that the "testing by product" alternative would meet Japan's appropriate level of testing, as scientific evidence has demonstrated that this alternative would result in the proper protection of the Japanese fruit culture from codling moth infestation.

59. With regard to Article 7 of the SPS Agreement, Brazil agrees with the Panel that "... a non-mandatory government measure is also subject to WTO provisions, in the event that compliance with this measure is necessary to obtain an advantage from the government or, in other words, if sufficient incentives or disincentives exist for that measure to be abided by."

60. Brazil argues that the Panel should have concluded that the lack of evidence regarding apricots, pears, plums and quince is in itself the proof that the measure is based on insufficient scientific evidence. According to Brazil, the Panel's finding seems to reward an importing Member for its lack of evidence in support of its contested measure.

B. European Communities

61. With regard to Article 2.2 of the SPS Agreement, the European Communities submits that the empirical evidence submitted by the United States is useful, but not sufficient, to discharge the United States' burden of persuasion nor to overturn the presumption of SPS conformity of the measure at issue. According to the rules on burden of proof, the Panel should have ruled that the United States has not discharged its burden of proof.

62. The European Communities submits that while the rules on burden of proof under Article 2.2 should have led the Panel to reject the United States' claims, the Panel instead devised a new legal test that in judging the sufficiency of the scientific evidence, the Member maintaining the measure should establish an "actual causal link" between the measure and the scientific evidence on the basis of which it is maintained. It is the European Communities' contention that to require an "actual causal link" is contrary to the text, object, purpose and preparatory history of Article 2.2 of the SPS Agreement. Furthermore, the European Communities asserts that the "actual causal link" test is narrower in scope than the rational relationship test adopted by the Appellate Body in European Communities - Hormones.22 In the opinion of the European Communities, a systematic interpretation of Articles 2.2 and 5.1 in context does not reveal that the "sufficiency" threshold under Article 2.2 should be more restrictive than that applied in deciding whether an SPS measure is "based on" a risk assessment.

63. According to the European Communities, since the concept of risk and risk assessment in the SPS Agreement is a qualitative and not a quantitative one, the word "sufficient" cannot be taken to refer to the quantitative, but should be seen as referring to the qualitative aspects of the scientific evidence used by the regulatory authorities of a Member.

64. With regard to Article 5.7 of the SPS Agreement, the European Communities argues that the first sentence of Article 5.7 lays down the requirements that trigger the operation of Article 5.7 and, for that reason, the Panel's refusal to examine whether the measure at issue satisfies all the conditions of Article 5.7 is, in principle, unsatisfactory.

65. The European Communities submits that, contrary to what the United States claims, an insufficient amount of relevant information can be established not only when the Member having recourse to this provision is not able to perform a risk assessment, but also when the risk assessment shows that the relevant scientific evidence is, for example, insufficient, conflicting, inconclusive or uncertain. The explicit mention made of Article 5.7 in Article 2.2 implies that the conditions for the application of the one provision necessarily affect the application of the other.

66. The European Communities agrees with Japan that the Panel erred in finding that the obligation "to seek to obtain the additional information" means that the necessary information must be specific enough. The text of Article 5.7 does not lay down any information collection procedures.

67. The European Communities considers that the Panel erred in implying that the requirement to review the measure within a "reasonable period of time" extends also to the period of time prior to the entry into force of the SPS Agreement, or that a period of four years in the application of a measure is not reasonable. According to the European Communities, the obligation to seek to obtain information does not require that actual results be obtained within a specified period of time. The reasonableness of the period of time, as argued by Japan, should be judged according to the risk involved and the nature of the SPS measure which is required to be taken in order to achieve the Member's level of sanitary protection.

68. With regard to Article 5.6 of the SPS Agreement, the European Communities agrees with the Panel that an alternative measure exists, i.e., the "determination of sorption levels", which is reasonably available, significantly less trade-restrictive and achieves Japan's level of phytosanitary protection.

69. With regard to Article 7 of the SPS Agreement, the European Communities agrees with the Panel that the varietal testing requirement imposed by Japan is a phytosanitary measure according to the wording of Annex B of the SPS Agreement, and consequently, must be published in order to comply with the transparency requirement in Article 7.

70. With regard to Article 8 of the SPS Agreement, the European Communities agrees with the United States that the measure at issue is inconsistent with paragraph 1(c) of Annex C and with Article 8 of the SPS Agreement.

IV. Issues Raised in this Appeal

71. This appeal raises the following issues:

(a) whether the Panel erred in law in finding that the varietal testing requirement is maintained without sufficient scientific evidence within the meaning of Article 2.2 of the SPS Agreement;

(b) whether the Panel erred in law in its application of Article 5.7 of the SPS Agreement and in finding that the requirements of the second sentence of Article 5.7 are not fulfilled;

(c) whether the Panel erred in law by failing to find that "testing by product" achieves Japan's appropriate level of protection as required under Article 5.6 of the SPS Agreement;

(d) whether the Panel erred in law in making a finding under Article 5.6 of the SPS Agreement with regard to the "determination of sorption levels" irrespective of whether it had found the varietal testing requirement to be inconsistent with Article 2.2 of the SPS Agreement;

(e) whether the Panel correctly interpreted the scope of application of the publication requirement of paragraph 1 of Annex B of the SPS Agreement;

(f) whether the varietal testing requirement is consistent with Article 5.1 of the SPS Agreement;

(g) whether the varietal testing requirement is consistent with Article 8 and paragraph 1(c) of Annex C, of the SPS Agreement;

(h) whether the Panel's finding under Article 5.6 of the SPS Agreement with regard to the "determination of sorption levels" was reached in a manner consistent with the rules on burden of proof;

(i) whether the Panel erred in law by not extending its findings of inconsistency with Articles 2.2 and 5.6 of the SPS Agreement to the varietal testing requirement as it applies to apricots, pears, plums and quince; and

(j) whether the Panel's finding on Article 2.2 of the SPS Agreement is inconsistent with Article 11 of the DSU.

V. The SPS Agreement

A. Article 2.2

72. Article 2.2 of the SPS Agreement stipulates in relevant part:

Members shall ensure that any sanitary and phytosanitary measure ... is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.

The Panel found that Japan's varietal testing requirement as it applies to apples, cherries, nectarines and walnuts is maintained without sufficient scientific evidence and is, therefore, inconsistent with Article 2.2 of the SPS Agreement.23 Japan appeals this finding. According to Japan, the Panel erred in law in finding that the varietal testing requirement was "maintained without sufficient scientific evidence" within the meaning of Article 2.2.

73. Japan's appeal raises the issue of the meaning of the phrase "maintained without sufficient scientific evidence" in Article 2.2 and, in particular, the meaning of the word "sufficient". The ordinary meaning of "sufficient" is "of a quantity, extent, or scope adequate to a certain purpose or object".24 From this, 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.

74. 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.

75. Article 5.1 of the SPS Agreement requires that an SPS measure be based on a risk assessment. As we stated in our Report in European Communities - Hormones:

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 5.1.25

76. In that Report, we found 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.26

We agree with the Panel that this statement provides guidance for the interpretation of the obligation under Article 2.2 not to maintain an SPS measure without sufficient scientific evidence.27

77. We also consider it useful in interpreting Article 2.2, and, in particular, the meaning of the word "sufficient", to recall the following statement on Article 5.1 in our Report in European Communities - Hormones:

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.28

78. Furthermore, in our Report in Australia - Salmon, we stated with regard to Article 5.1:

it is not sufficient that a risk assessment conclude that there is a possibility of entry, establishment or spread ... . A proper risk assessment ... must evaluate the "likelihood", i.e., the "probability", of entry, establishment or spread ... .29

We also made it clear in that Report that some evaluation of the likelihood is not enough.30

79. As mentioned above, the context of the phrase "not maintained without sufficient scientific evidence" in Article 2.2 also includes Article 3.3 of the SPS Agreement. Pursuant to Article 3.3, Members may introduce or maintain an SPS measure which results in a higher level of protection than would be achieved by a measure based on a relevant international standard, inter alia, "if there is a scientific justification" and the measure is not inconsistent with any other provision of the SPS Agreement. In European Communities - Hormones, we stated:

the footnote to Article 3.3 ... defines "scientific justification" as an "examination and evaluation of available scientific information in conformity with relevant provisions of this Agreement ...".31

To continue with Article 2.2


22European Communities - Hormones, supra, footnote 12.

23Panel Report, para. 8.43.

24C.T. Onions (ed.), The Shorter Oxford English Dictionary, Third Edition (1983), p. 2180.

25European Communities - Hormones, supra, footnote 12, para. 180.

26European Communities - Hormones, supra, footnote 12, para. 193.

27Panel Report, para. 8.29.

28European Communities - Hormones, supra, footnote 12, para. 194.

29Australia - Salmon, supra, footnote 13, para. 123.

30Australia - Salmon, supra, footnote 13, para. 124.

31European Communities - Hormones, supra, footnote 12, para. 175.