135. As the parties had only submitted evidence with respect to apples, cherries, nectarines and walnuts, the Panel stated that it would:

At its meeting with the experts, the Panel asked them whether their statements about varietal differences concerning apples, cherries, nectarines and walnuts were also valid for apricots, pears, plums and quince. Dr. Heather answered this question with an unqualified "yes" and the two other experts concurred.⁹⁰ After having noted that the experts did not further elaborate on their answers and that neither of the parties provided any additional comments or information, the Panel came to the conclusion that there was not sufficient evidence before it to extend its finding of inconsistency with Article 2.2 to apricots, pears, plums and quince.⁹¹

136. According to the rules on burden of proof already discussed above⁹², the onus was on the United States to make a prima facie case that the varietal testing requirement was inconsistent with Article 2.2. In order to do this, the United States was required to adduce evidence sufficient to raise a presumption that the varietal testing requirement was maintained "without sufficient scientific evidence". With regard to the varietal testing requirement as it applies to apples, cherries, nectarines and walnuts, the Panel considered that the United States did adduce sufficient evidence to raise such a presumption.⁹³ With regard to the varietal testing requirement as it applies to apricots, pears, plums and quince, the Panel considered, after taking into account both the evidence submitted by the United States (or the absence thereof) and the opinions received from the experts⁹⁴, that the United States did not adduce sufficient evidence to raise such a presumption. As we have already stated in our Report in Australia - Salmon⁹⁵, the Panel's consideration and weighing of the evidence before it relates to its assessment of the facts and, therefore, falls outside the scope of appellate review under Article 17.6 of the DSU.

137. Furthermore, we disagree with the United States that the Panel imposed on the United States an impossible and, therefore, erroneous burden of proof by requiring it to prove a negative, namely, that there are no relevant studies and reports which support Japan's varietal testing requirement. In our view, it would have been sufficient for the United States to raise a presumption that there are no relevant studies or reports. Raising a presumption that there are no relevant studies or reports is not an impossible burden. The United States could have requested Japan, pursuant to Article 5.8 of the SPS Agreement, to provide "an explanation of the reasons" for its varietal testing requirement, in particular, as it applies to apricots, pears, plums and quince. Japan would, in that case, be obliged to provide such explanation. The failure of Japan to bring forward scientific studies or reports in support of its varietal testing requirement as it applies to apricots, pears, plums and quince, would have been a strong indication that there are no such studies or reports. The United States could also have asked the Panel's experts specific questions as to the existence of relevant scientific studies or reports or it could have submitted to the Panel the opinion of experts consulted by it on this issue. The United States, however, did not submit any evidence relating to apricots, pears, plums and quince.⁹⁶

138. We, therefore, conclude that the Panel did not err in law in failing to extend its finding of inconsistency with Article 2.2 to the varietal testing requirement as it applies to apricots, pears, plums and quince.

139. With regard to the question whether the Panel should have extended its finding of inconsistency with Article 5.6 to the varietal testing requirement as it applies to apricots, pears, plums and quince, we recall that we have reversed the Panel's finding of inconsistency with Article 5.6. This question, therefore, is moot.

C. Article 11 of the DSU

140. Japan claims that the Panel acted inconsistently with Article 11 of the DSU in making its finding under Article 2.2 on the varietal testing requirement as it applies to apples, cherries, nectarines and walnuts.⁹⁷ Article 11 of the DSU reads in relevant part:

141. As we stated in our Report in European Communities - Hormones ⁹⁸, not every failure by the Panel in the appreciation of the evidence before it can be characterized as failure to make an objective assessment of the facts as required by Article 11 of the DSU. Only egregious errors constitute a failure to make an objective assessment of the facts as required by Article 11 of the DSU.

142. In our view, Japan has not demonstrated that the Panel, in its examination of the consistency of the varietal testing requirement with Article 2.2, has made errors of the gravity required to find a violation of Article 11 of the DSU. We, therefore, conclude that the Panel did not abuse its discretion contrary to the requirements of Article 11 of the DSU.

VII. Findings and Conclusions

143. For the reasons set out in this Report, the Appellate Body:

144. The Appellate Body recommends that the DSB request that Japan bring its varietal testing requirement found in this Report, and in the Panel Report as modified by this Report, to be inconsistent with the SPS Agreement, into conformity with its obligations under that Agreement.

Signed in the original at Geneva this 4th day of February 1999 by:

⁸⁹Ibid.

⁹⁰Panel Report, para. 8.45.

⁹¹We note that the Panel failed to make a finding on peaches which are not nectarines. We consider the Panel's failure to make a finding on peaches other than nectarines, a product at issue in this dispute, to be an error of law (see Appellate Body Report, Japan - Taxes on Alcoholic Beverages, adopted 1 November 1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p. 26). This error on the part of the Panel was not, however, appealed by the United States.

⁹²See supra, paras. 121 and 122.

⁹³Panel Report, para. 8.42.

⁹⁴Panel Report, para. 7.9.

⁹⁵Australia - Salmon, supra, footnote 13, para. 261.

⁹⁶Panel Report, para. 8.6.

⁹⁷Appellant's Submission of Japan, paras. 51-55.

⁹⁸European Communities - Hormones, supra, footnote 12, para. 133.