EC Measures concerning meat and meat products (hormones)
AB-1997-4
Report of the Appellate Body
(Continued)
10. Procedural Issues
53. The United States asks the Appellate Body to dismiss each of the
procedural claims raised by the European Communities. The appeal by the
European Communities on these issues, the United States claims, raises a
threshold question as to whether, and if so, under what circumstances, the
procedures employed by the Panel during the proceeding could be considered
to be issues of law covered in the Panel Report or legal interpretations
developed by the Panel within the meaning of Article 17.6 of the DSU. The
United States asserts that the European Communities has not pointed to any
textual basis for its arguments, nor to any past practice under the GATT
1947 or the WTO Agreement. The United States submits that, to
sustain a claim that a panel's handling of procedural issues was
inconsistent with the DSU, a party to a dispute must have raised
objections in a timely manner during the panel proceeding, if feasible. In
the view of the United States, any other response to procedural objections
will weaken the authority of panels and destabilize the dispute settlement
system. It would also be fundamentally unfair to permit a party to wait
and see what the outcome of a panel proceeding is and make its procedural
objections only when it is too late for the panel to address them. The
United States urges that the objections raised by the European Communities
should be rejected to the extent that they were not first made to the
Panel.
54. With respect to the EC's objection concerning the Panel's selection
of experts, the United States observes that during the panel proceeding,
the European Communities did not object to the participation of two
experts who are not only nationals of the Member States of the European
Union, but are also employed by institutions of such Member States. As to
the EC's objection to the alleged links of one of the experts to the
pharmaceutical industry, the United States asserts that the European
Communities did not question these links at the time this expert's name
was raised by the Panel, even though the European Communities expressed
similar concerns at that time with regard to two other scientists proposed
by the Panel.
55. Turning to the issue of whether a procedural objection should be
based on a "precise claim" of prejudice, the United States
believes that while a Panel clearly has the duty of following the relevant
rules of the DSU and the covered agreements, a party seeking the reversal
or a modification of a procedural ruling should assume the responsibility
of providing concrete reasons and legal arguments justifying its
objection. Otherwise, every procedural ruling of a Panel could be subject
to objections posed for unspecified reasons.
56. The United States asserts that the Panel's decision to consult
individual experts, instead of convening an expert review group, was
consistent with the DSU and the SPS Agreement. The European
Communities itself concedes that Article 13 of the DSU and Article 11.2 of
the SPS Agreement are permissive, and not mandatory, provisions.
The United States contends that the Panel was not required to convene an
expert review group, either under the terms of Article 13 of the DSU or
Article 11.2 of the SPS Agreement. If the Panel had convened an
expert review group, the rules and procedures of Appendix 4 of the DSU
would have been applicable. Since the Panel did not convene such a group,
the Panel's decision not to follow the rules and procedures of Appendix 4
was completely consistent with the DSU and was within the discretion
accorded to panels in their procedural decisions.
57. The United States contends that the Panel's harmonization of the
two panel proceedings did not impair the rights of defence of the European
Communities. The use of the same panelists for both proceedings accorded a
procedural advantage to the European Communities. According to the United
States, rather than having two meetings with each of the two separate
Panels, the European Communities was able to have four sessions with the
same Panel. The European Communities willingly agreed to have the same
panelists in both proceedings.
58. With respect to the issue of extended third party rights, the
United States submits that the European Communities failed to make to the
Panel the detailed objections it made for the first time in its
appellant's submission. There is no reason why, if one panel may grant
such rights in one dispute, another panel may not also grant such rights
in another dispute. 43 The
United States believes that there were strong reasons to provide it with
extended third party rights in the Canadian panel proceeding. The United
States asserts that the European Communities is mistaken in asserting that
the Panel's grant of extended third party rights gave the complainants
access to documents. Both the United States and the European Communities
made public their submissions and statements to the Panel in the United
States' panel proceeding, and therefore Canada already had access to all
these documents.
C. Arguments by Canada - Appellee
1. Burden of Proof
59. On the matter of allocation of the burden of proof under the SPS
Agreement in general, Canada contends that the Panel adopted the
reasoning provided by the Appellate Body in United States - Shirts and
Blouses. 44 As to the
allocation of the burden of proof under Article 3.3 of the SPS
Agreement, Canada insists that the Panel's findings are correct,
although it would be more accurate to hold that "... the burden of
proof under Article 3.1 shifts to the defending party to show either that
the measure in dispute is consistent with the obligation in Article 3.1,
or to invoke the exception under 3.1 and show that it meets the conditions
of that exception". 45
Should the Appellate Body reverse or modify the Panel's findings on the
burden of proof, Canada submits that in any event, Canada has established
a prima facie case of violation. With regard to the burden of proof
under Article 5.1 of the SPS Agreement, Canada believes that it had
provided sufficient evidence concerning the import ban on meat treated
with MGA to establish a prima facie case.
2. The Precautionary Principle
60. The Panel did not take a position on whether the
"precautionary principle" constituted part of the body of
international law. Rather, in Canada's view, the Panel acknowledged that
the "precautionary principle" was reflected in Article 5.7 of
the SPS Agreement, and correctly held that the "precautionary
principle" could not override Articles 5.1 and 5.2, or any other
provision of the SPS Agreement. Canada also regards the issue of
whether the "precautionary principle" is "built into"
other provisions of the SPS Agreement as irrelevant in this appeal.
Moreover, the European Communities has not explained what is meant by the
"precautionary principle" having been "built into"
other provisions of the SPS Agreement, and how this could in any
way affect the conclusions of the Panel. The "precautionary
principle" should be characterized as the "precautionary
approach" because it has not yet become part of public international
law. Canada considers the precautionary approach or concept as an emerging
principle of international law, which may in the future crystallize into
one of the "general principles of law recognized by civilized
nations", within the meaning of Article 38(1)(c) of the Statute of
the International Court of Justice.
3. Objective Assessment of the Facts
61. Canada submits that many of the claims made by the European
Communities in its appellant's submission purport to be claims relating to
errors of law but are in reality claims alleging errors of fact. The
Appellate Body made it clear in its Report in European Communities -
Bananas46, that factual
findings are, pursuant to Article 17.6 of the DSU, beyond review by the
Appellate Body.
4. Temporal Application of the SPS Agreement
62. Canada argues that the distinction drawn by the European
Communities between provisions of the SPS Agreement that include
the terms "maintain" or "apply", and others that do
not, is not sustainable. This dichotomy presented by the European
Communities would mean that measures in existence on 1 January 1995 are
indefinitely exempt from the disciplines of Articles 5.1 and 5.5, but it
is hardly credible that the Members intended to exempt them. Other covered
agreements contain specific provisions dealing with temporal issues,
therefore, non-application of provisions of the SPS Agreement, such
as Articles 5.1 and 5.5, would have been dealt with expressly in the text
of the SPS Agreement. In any event, the EC measures at issue in
this dispute include EC Directives 96/22/EC and 96/23/EC, which were
adopted after the WTO Agreement entered into force.
5. Article 3.1
63. Canada maintains that the EC's argument that Article 3.1 does not
constitute a "general obligation", but is one of three options
available to Members when Codex recommendations exist, is incorrect.
Article 3.1 sets out a positive obligation for Members to base their SPS
measures on international standards, guidelines or recommendations. The
words of Article 3.1 do not describe three "options". If the
drafters of the agreement had intended such a meaning, they would have
said so. Canada supports the Panel's conclusion that the terms
"conform to" and "based on" are
"co-extensive". Even if the Appellate Body accepts the view that
"conforms to" is narrower in scope than "based on",
Article 3.1 does not present a second "option", as argued by the
European Communities. A measure that "conforms to" an
international standard would also be "based on" that standard.
6. Article 3.3
64. The key element of the footnote to Article 3.3 is that it requires
an examination and evaluation of available scientific information. Since
the SPS Agreement defines a risk assessment as: "the evaluation
of the potential for adverse effects on human ... health ...", the
"examination and evaluation of scientific information" in the
footnote to Article 3.3 refers to a risk assessment. A Member cannot, in
Canada's view, determine that the relevant international standards are not
sufficient to achieve its appropriate level of sanitary protection unless
the Member does an evaluation of that risk (i.e. a risk assessment),
taking into account available scientific evidence.
7. Article 5.1
65. Canada considers that the Panel's interpretation of Article 5.1
accords with the ordinary meaning of the words in their context. If a
measure is "founded on" a risk assessment then there must be
some evidence that the measure was built upon that foundation. Such a
requirement would not amount to "freezing the scientific
record", since the Panel made clear that it was looking for evidence
that a risk assessment was taken into account when the EC measures were
established or at any later point in time. In Canada's view, the
Panel's reading of Article 5.1 is sound, and accords with the basic
obligations set out in Article 2.2 that a measure must not be maintained
without sufficient scientific evidence. If the scientific conclusions
reflected in the EC measures do not conform with any of those reached in
the risk assessments, then the scientific foundation for the measure
clearly does not come from those risk assessments.
66. Canada submits that in defining what is a risk assessment, the
European Communities focuses on the word "potential" to the
exclusion of "evaluation". In doing so, the European Communities
has stopped the process at identifying an adverse effect without carrying
out the evaluation of the risk, i.e. performing a risk assessment.
67. At the oral hearing, when asked about the need for a separate risk
assessment of each individual substance, Canada opined that one can use
characteristics of chemical families as a starting point for exploring
whether something might pose a hazard, but it is then necessary to go on
and do a full evaluation of that chemical in order to determine whether it
in fact poses a hazard.
8. Article 5.5
68. According to Canada, the scope of "different situations"
referred to in Article 5.5 is at least as broad as the Panel found. The
limited scope suggested by the European Communities conflicts with the
ordinary meaning of "different situations". Canada also submits
that in the light of the object and purpose of the SPS Agreement
and the context of Article 5.5, there is no reason to limit the scope of
comparison between levels of protection for human health. In Canada's
view, the Panel correctly found that the European Communities had not
justified the distinctions in its purported levels of protection. The
Panel did not "confine" the range of factors to be taken into
consideration; the Panel considered all the arguments the European
Communities had provided, but found them wanting. Canada contests the
argument of the European Communities that the significance of the
difference in levels of protection is no guide to the significance of
trade effects. No measure could be more trade restrictive than an import
ban.
9. Procedural Issues
69. Canada submits that all of the procedural rulings made by the Panel
were fair to all the parties, did not result in any prejudice or
injustice, and were within the Panel's jurisdiction and discretion. In
particular, Canada believes that the Panel acted within its jurisdiction
in making comparisons and findings with respect to the levels of
protection for endogenous natural hormones, even if those precise
arguments on Article 5.5 of the SPS Agreement were not made by
Canada or the United States. Article 11 of the DSU does not limit the
mandate of the Panel by compelling it to use only the arguments made by
the parties. A panel is not prevented from making an objective finding
that does not correspond to either party's argument.
70. Concerning the Panel's decision to consult experts in their
individual capacities, rather than as an expert review group, Canada
submits that the process chosen by the Panel ensured that all the views of
the experts advising the Panel were brought to the Panel's attention. Far
from prejudicing the European Communities, this process gave the European
Communities an opportunity to elicit evidence to support its arguments
from any of the Panel's experts. While Article 11.2 of the SPS
Agreement provides that in disputes involving scientific or technical
issues, a Panel should seek advice from experts chosen by the Panel in
consultation with the parties to the dispute, this provision does not
require the Panel to accept all expert advice without scrutiny. Canada
submits that, to the contrary, the Panel had no authority to delegate its
fact-finding duty to the experts in such a manner.
71. It is also submitted by Canada that the objection of the European
Communities to the nationality of the experts selected to assist the Panel
is without merit. Canada is unaware that the European Communities raised
any such objection during the Panel's selection of experts. In Canada's
view, by suggesting an expert who was a national of one of its Member
States, the European Communities waived its right to object to the other
scientists on the basis of their nationality. The Panel's decisions on
"extended third party rights" were proper exercises of the
Panel's discretion, and are not inconsistent with the DSU. The European
Communities made references to materials that it had placed before the US
Panel, but did not provide those materials in the Canada Panel proceeding.
Thus, according to Canada, rather than prejudice the EC case, the Panel
allowed all the submissions by the European Communities before the US
Panel to be considered by the Canada Panel. Canada maintains that the
decision of the Panel to convene a joint meeting of the experts was also
within the discretion of the Panel. The European Communities has failed to
demonstrate that it suffered any substantive prejudice as a result of this
decision. In Canada's view, pursuant to Article 11 of the SPS
Agreement, the Panel was entitled to seek advice from experts chosen
by the Panel in consultation with the parties, but was under no obligation
to convene a meeting with the experts, either severally or jointly.
D. Claims of Error by the United States - Appellant
1. Article 2.2
72. In its capacity as appellant, the United States submits that the
Panel erred because, having made all of the findings necessary to find
that the EC measure was inconsistent with Article 2.2, it did not take the
final step and declare the import ban to be inconsistent with Article 2.2.
47 Article 2.2 requires the
European Communities to have sufficient scientific evidence to support its
measure. Since the Panel methodically listed and reviewed all of the
scientific evidence presented by the European Communities, and in respect
of each piece of evidence made a factual finding that the evidence did not
support the EC measure, the United States submits that the Panel should
have come to the legal conclusion that the EC import prohibition is
maintained without sufficient scientific evidence. In the view of the
United States, there was no need for the Panel to determine exactly how
much scientific evidence is "sufficient" for purposes of Article
2.2. The Panel found that the European Communities had presented no
evidence to support its ban; "no evidence" cannot be considered
to meet the threshold of "sufficient evidence".
73. In justifying why it made no finding under Article 2.2, the Panel
stated that Articles 3 and 5 provide for more specific obligations than
the "basic rights and obligations" set out in Article 2.
According to the United States, Articles 3 and 5 of the SPS Agreement
do not necessarily provide for more specific rights and obligations than
all of the "basic rights and obligations" set out in Article 2.
Neither Article 3 nor Article 5 says how much evidence is necessary to
support an SPS measure. Article 2.2 establishes that quantum of evidence
in requiring that measures not be maintained "without sufficient
scientific evidence". The United States submits, therefore, that
nothing in the text of Articles 2, 3 or 5 indicate that all of the
obligations in Article 2 are subsumed under the provisions of Articles 3
and 5.
2. Article 5.6
74. It is urged by the United States that the Panel erred 48
in failing to make a finding under Article 5.6 of the SPS Agreement,
and that the Panel's findings on Article 5.5 are sufficient to establish
that the EC ban is inconsistent with Article 5.6 of the SPS Agreement.
The United States notes that the European Communities prohibits the use of
the natural hormones to promote growth, while having no limits on the
residues of these exact same substances either naturally-present or used
for therapeutic or zootechnical purposes. Since the European Communities
accepts the residues of these naturally-occurring hormones in meat as
safe, then the EC ban is, in the view of the United States, more trade
restrictive than required.
75. The United States also notes that the European Communities
prohibits the use of the three synthetic hormones at issue, while
permitting the use of similar hormones (the three natural hormones) for
therapeutic and zootechnical purposes as well as the use of carbadox,
another synthetic compound, for growth promotion purposes. In the view of
the United States, the European Communities has, in each instance, chosen
the most trade restrictive approach (a ban on trade) with respect to the
six hormones for growth promotion purposes. The United States argues that
the European Communities could permit residues of these hormones used for
growth promotion purposes at the same levels that it permits for other
purposes and still achieve its level of protection. The fact that the
European Communities permits these levels for these other purposes
demonstrates that similarly treating residues from growth promotion would
be reasonably available to the European Communities and would be
technically and economically feasible. Permitting these levels for growth
promotion purposes would also be significantly less trade restrictive than
the current EC ban.
76. The Panel found that "no scientific evidence is available
which concludes that an identifiable risk arises from the use of any of
the hormones at issue for growth promotion purposes in accordance with
good practice." 49 In
the view of the United States, this finding is sufficient in itself to
establish that the EC ban is inconsistent with Article 5.6. If there is no
identifiable risk from the use of these hormones for growth promotion in
accordance with good practice, then the EC ban cannot be necessary to
achieve a level of protection from an identified risk. The ban is then, by
definition, more trade restrictive than required to achieve the
appropriate level of sanitary protection by the European Communities.
E. Claims of Error by Canada - Appellant
1. Article 5.6
77. Canada states that its appeal is designed to safeguard its right to
rely on its arguments presented to the Panel with respect to Article 5.6,
in the event that the Appellate Body decides to modify or reverse the
Panel's findings with respect to Articles 3.1, 5.1 or 5.5 of the SPS
Agreement. Canada asserts that the EC measures are inconsistent with
Article 5.6 of the SPS Agreement. Canada submits that according to
the wording of paragraph 5 of Annex A, Article 5.5 and the object and
purpose of the SPS Agreement, if there is no scientific evidence of
an identifiable risk, there is no basis on which to adopt a measure to
achieve a level of sanitary protection under the SPS Agreement,
except as provided in Article 5.7.
78. In Canada's view, if a Member could adopt a level of protection and
implement a sanitary measure even if it did not provide scientific
evidence of an identifiable risk, no effect could be given to the
obligation contained in Article 5 to base measures on an assessment of
risks. This approach would undermine the wording and object and purpose of
the SPS Agreement. Canada notes that the Panel found that the
European Communities had not provided any scientific evidence of an
identifiable risk related to the hormones at issue when used for growth
promotion purposes in accordance with good practice. 50
If there is no scientific evidence of an identifiable risk, and therefore
no basis on which to adopt a measure to achieve a level of sanitary
protection under the SPS Agreement, except for Article 5.7, then by
definition, no SPS measure could be adopted that would not be more trade
restrictive than required. In Canada's conclusion, applying the Panel's
findings with respect to the six hormones at issue to the requirements of
Article 5.6, the EC measures are more trade restrictive than required, and
inconsistent with Article 5.6.
F. Arguments by the European Communities - Appellee
1. Article 2.2
79. The European Communities questions whether the statement of the
Panel regarding Article 2.2 amounts to an issue of law covered in the
Panel Report or a legal interpretation developed by the Panel in the sense
of Article 17.6 of the DSU. Although the Panel declined to rule on Article
2.2 because of a legal interpretation reached by the Panel regarding the
relationship between Articles 2 and 5 of the SPS Agreement, the
refusal by the Panel to rule on Article 2.2 places this statement outside
the scope of appellate review. The Panel did not address the substantive
requirements of Article 2.2, and has not made the necessary findings on
whether the scientific evidence submitted by the European Communities is
sufficient. The European Communities agrees with the United States that
nothing in the text of Articles 2, 3 and 5 of the SPS Agreement
indicates that all of the obligations set out in Article 2 are subsumed
under the provisions of Articles 3 and 5. From the factual, procedural and
substantive points of view, the questions that need to be considered under
Article 2.2 are different from those examined by the Panel under Articles
3.1, 5.1, 5.2 and 5.5 of the SPS Agreement. It appears to the
European Communities that there is no "sufficient basis" in the
Panel Report for the Appellate Body to rule on the claims of the United
States in respect of Article 2.2. Moreover, the United States bases its
claims on certain paragraphs of the Panel Report that are founded on a
manifest misunderstanding or clear distortion of the facts, or inadequate
reasoning by the Panel, as explained by the European Communities in its
own appeal.
80. The European Communities submits that, should the Appellate Body
examine the applicability of Article 2.2 of the SPS Agreement, it
should also examine the applicability of Article 5.7, which is expressly
referred to in Article 2.2. The European Communities believes that its
measures are consistent with Article 2.2 of the SPS Agreement.
81. The European Communities observes that in its appeal, the United
States does not discuss what constitutes "sufficient" scientific
evidence. Since the concepts of "risk" and "risk
assessment" in the SPS Agreement are not quantitative, but
qualitative concepts, the word "sufficient" also cannot be taken
to refer to the quantitative, but rather to the qualitative, aspects of
the scientific evidence used by the regulatory authorities of a Member.
The use of the words "scientific principles" in the same Article
reinforces the view that Article 2.2 and the SPS Agreement in
general do not require sanitary measures to be "based on" the
"best" scientific evidence or the "weight" of
available scientific evidence. The European Communities submits,
therefore, that the real question is not whether the sanitary measure is
"based on" the "best" science or the
"preponderance" of science or whether there is conflicting
science. Rather, the question is only whether the government maintaining a
measure has a scientific basis for that measure.
2. Article 5.6
82. The European Communities also questions whether the statements of
the Panel regarding Article 5.6 amount to an issue of law covered in the
Panel Report or a legal interpretation developed by the Panel, for
purposes of Article 17.6 of the DSU. Although the Panel's refusal to rule
on Article 5.6 rests on a certain view of the Panel regarding the
relationship between Articles 2 and 5 of the SPS Agreement, such a
refusal places the matter outside the scope of appellate review. The
European Communities submits that the Panel did not apply the substantive
requirements of Article 5.6, and did not make the necessary factual
findings that: first, the EC measures are more trade restrictive than
required to achieve the EC's level of protection; secondly, there is
another measure reasonably available taking into account technical and
economic feasibility; and thirdly, this other measure both achieves the
EC's level of sanitary protection and is significantly less trade
restrictive. Finally, the European Communities argues that Canada and the
United States base their claims on certain paragraphs of the Panel Report
that are founded on a manifest misunderstanding or clear distortion of the
facts or inadequate reasoning by the Panel, as the European Communities
has explained in its appeal.
83. The European Communities is convinced that the EC measures are
consistent with Article 5.6 of the SPS Agreement. According to the
European Communities, the objective is to ensure that consumers are not
exposed to any residues of hormones used for growth promotion purposes.
The European Communities acknowledges that some hormones are present
naturally and cannot be avoided. It also acknowledges that some hormones
are administered to cattle for therapeutic and zootechnical purposes,
purposes which are unavoidable and beneficial. However, the European
Communities has decided that the exposure of its population to hormones
above this level should be avoided, and that in particular, there should
be a zero level of tolerance for hormones used for growth promotion
purposes.
84. The European Communities has considered some possible alternatives
to the prohibition of imports of bovine meat containing residues of
hormones administered for growth promotion: first, the application of
Maximum Residue Limits ("MRLs") to such meat; second, the
application of some kind of control to all imports of meat to determine
whether hormones had been administered for growth promotion purposes; and
third, reliance on the exporters labelling their meat to indicate whether
hormones had been administered for growth promotion purposes. According to
the European Communities, however, none of the above alternative measures
would achieve the specified level of protection.
G. Arguments by the Third Participants
1. Australia
85. Australia considers that the Panel erred in law in its general
interpretations concerning the burden of proof under the SPS Agreement51,
and supports the arguments put forward by the European Communities.
However, it is also contended by Australia that paragraphs 8.54 and 8.58
of the Canada Panel Report and paragraphs 8.51 and 8.55 of the US Panel
Report present correct interpretations of the burden of proof and that the
Panel has, in general, followed these correct interpretations in its legal
reasoning and findings.
86. The conclusion reached by the Panel with regard to the temporal
application of the SPS Agreement is also supported by Australia.
However, Australia also recognizes the concerns raised by the European
Communities and agrees that there is nothing in the SPS Agreement
that could be interpreted to mean that measures already in place at the
time the SPS Agreement came into force are necessarily inconsistent
simply because the "preparatory and procedural obligations"
provided in Article 5 may not have been met. On the other hand, Australia
admits that nothing in the SPS Agreement suggests that such
measures can escape application of key provisions, such as Articles 5.1
and 5.2.
87. The Panel's interpretation that the SPS Agreement
"equates" the terms "conform to" and "based
on" ignores, in Australia's view, the ordinary meaning of these terms
in their context and fails to give effect to all the terms of the SPS
Agreement. The Panel has ignored the significant fact that the SPS
Agreement uses the expression "conform to" in both Article
3.2 and Article 2.4, i.e. in the two situations where rebuttable
presumptions are established that certain measures are consistent with the
SPS Agreement and/or the GATT 1994. Australia believes that the
issue of whether a particular measure is "based on" an
international standard, or "conforms to" such a standard, is
something which can only be determined on a case-by-case basis.
88. The Panel failed to give effect to all the terms of the SPS
Agreement by its treatment of the two options provided in Article 3.3.
According to Australia, the Panel has ignored the differences in the
wording of the two options, and their explicit identification as
alternatives by the use of the word "or" in Article 3.3. This
interpretation has resulted in the Panel concluding that both alternatives
mean that a measure can only be justified under Article 3.3 if it meets
the requirements of Article 5. In Australia's view, while a Member's
determination under the first of these options must be "based
on" an examination and evaluation of available scientific information
"in conformity with" the relevant provisions of the SPS
Agreement, there remains an important distinction between the two
options which the Panel failed to recognize.
89. Australia also considers as erroneous the Panel's interpretation of
"risk", specifically its use of the term "identifiable
risk", which has no basis in the text of the SPS Agreement.
What the Panel is required to examine under Articles 5.1 and 5.2 is
whether the EC measure is "based on" a risk assessment, and not
whether there was an "identifiable risk".
90. In discussing whether there is a need for a separate risk
assessment for each individual substance, Australia draws particular
attention to the wording of Article 5.1 providing for a risk assessment
"as appropriate to the circumstances". This wording expressly
recognizes that what constitutes an appropriate risk assessment may differ
from case to case. In the view of Australia, the determination of whether
a risk assessment is required for a particular individual substance should
therefore be made on a case-by-case basis. The Panel recognized that in
order to find an SPS measure inconsistent with Article 5.5 all elements of
this provision need to be present 52
but the Panel, nevertheless, gave undue weight, in the view of Australia,
to the significance of the distinction in the levels of protection. The
Panel's reference to the Appellate Body Report in Japan - Alcoholic
Beverages 53 concerning
the requirements of Article III:2 of the GATT 1994 was misleading and
inappropriate.
91. Although Australia supports the view of the United States that the
EC measures are inconsistent with Article 2.2 of the SPS Agreement,
Australia does not believe there was any need for the Panel to make such a
finding.
Continue with EC Measures concerning meat and
meat products (hormones)
43 The United States
refers to Panel Report, European Communities - Regime for the
Importation, Sale and Distribution of Bananas, adopted 25 September
1997, WT/DS27/R/USA ("European Communities - Bananas").
44 Adopted 23 May 1997,
WT/DS33/AB/R.
45 Canada's appellee's
submission, para. 59.
46 Adopted 25 September
1997, WT/DS27/AB/R.
47 US Panel Report,
para. 8.271.
48 US Panel Report,
para. 8.247.
49 US Panel Report,
para. 8.134.
50 Canada Panel Report,
paras. 8.165 and 8.264.
51 US Panel Report,
paras. 8.52-8.54; Canada Panel Report, paras. 8.55-8.57.
52 US Panel Report,
para. 8.174; Canada Panel Report, para. 8.177.
53 Adopted 1 November
1996, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R.
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