TWN Info Service on WTO and Trade Issues
WTO confirms Australian apple ban is WTO-illegal
Geneva, 3 Dec (Kanaga Raja) -- The Appellate Body of the World Trade Organization (WTO) this week upheld an earlier panel ruling that found the nearly 90-year-old Australian measures affecting the importation of apples from New Zealand to be inconsistent with Australia's WTO obligations.
In its ruling issued on 29 November, the Appellate Body recommended that the Dispute Settlement Body (DSB) request Australia to bring its measures, found in the Appellate Body report and in the panel report, as modified by the Appellate Body report, to be inconsistent with the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), into conformity with its obligations under that Agreement.
A dispute panel was established on 21 January
2008 to consider a complaint by
The panel had handed down a ruling on 9 August
this year, and found the Australian measures against the import of apples
The panel had requested
In its ruling, the panel had noted that
Following a new request for access to the Australian
market filed by
The scope of the risk analysis was the importation
of mature apple fruit free of trash, either packed or sorted and graded
bulk fruit from
The IRA provides that
The 17 measures listed by
The 16 measures at issue were conditions for the
importation of apples from
Before the panel, said the Appellate Body in its ruling, New Zealand had claimed that the measures at issue, both individually and as a whole, were inconsistent with Articles 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, and 8, and Annex C(1)(a) to the SPS Agreement.
Among other things, New Zealand had alleged that the Australian measures are maintained without scientific evidence, are not based on a proper risk assessment, and are more trade restrictive than necessary to achieve Australia's appropriate level of protection.
New Zealand had also claimed that the IRA ignores
available scientific evidence, Australian border inspection processes,
relevant apple production processes in New Zealand, relevant diseases
or pests in New Zealand, and relevant climatic conditions in both New
Zealand and Australia. Furthermore,
According to the Appellate Body report, Australia appealed the panel's finding that the 16 measures at issue, both as a whole and individually, constitute SPS measures within the meaning of Annex A(1) to the SPS Agreement. Secondly, Australia appealed the panel's finding that the measures at issue regarding fire blight and ALCM, as well as the requirements identified by New Zealand as "general" measures that are linked to all three pests at issue in the present dispute, are inconsistent with Articles 5.1 and 5.2 of the SPS Agreement and, by implication, with Article 2.2 of the SPS Agreement.
On appeal, said the Appellate Body,
Measure 1 relates to the requirement that apples be sourced from areas free from fire blight disease symptoms. Measure 2 is on the requirement that orchards/blocks be inspected for fire blight disease symptoms, including that they be inspected at an intensity that would, at a 95 per cent confidence level, detect visual symptoms if shown by 1 per cent of the trees, and that such inspections take place between 4 to 7 weeks after flowering.
Measure 3 concerns the requirement that an orchard/block inspection methodology be developed and approved that addresses issues such as the visibility of symptoms in the tops of trees, the inspection time needed and the number of trees to be inspected to meet the efficacy level, and the training and certification of inspectors.
Measure 4 is on the requirement that an orchard/block be suspended for the season on the basis that any evidence of pruning or other activities carried out before the inspection could constitute an attempt to remove or hide symptoms of fire blight, while Measure 5 relates to the requirement that an orchard/block be suspended for the season on the basis of detection of any visual symptoms of fire blight.
Measure 6 is with regards to the requirement that apples be subject to disinfection treatment in the packing house. Measure 7 is on the requirement that all grading and packing equipment that comes in direct contact with apples be cleaned and disinfected (using an approved disinfectant) immediately before each Australian packing run, while Measure 8 is on the requirement that packing houses registered for export of apples process only fruit sourced from registered orchards.
Measure 14 meanwhile concerns the requirements of inspection and treatment for ALCM, including the options of: inspection of each lot on the basis of a 3000-unit sample selected at random across the whole lot for ALCM, symptoms of quarantineable diseases, quarantineable pests, arthropods, trash and weed seeds, with detection of any live quarantineable arthropod resulting in appropriate treatment or rejection for export; or inspection of each lot on the basis of a 600-unit sample selected at random across the whole lot for symptoms of quarantineable diseases, trash and weed seeds, as well as mandatory appropriate treatment of all lots.
Measure 15 is on the requirement that Australian
Quarantine and Inspection Service officers be involved in orchard inspections
for European canker and fire blight, in direct verification of packing
house procedures, and in fruit inspection and treatment. Measure 16
is on the requirement that
In its findings and conclusions, the Appellate Body upheld the panel's finding that the 16 measures at issue, both as a whole and individually, constitute SPS measures within the meaning of Annex A(1) to the SPS Agreement.
It further upheld the panel's finding that
The Appellate Body found that
It reversed the panel's finding that
It also reversed the panel's finding that New
Zealand's claim under Annex C(1)(a) and its consequential claim under
Article 8 of the SPS Agreement fall outside the panel's terms of reference.
However, it found that
The Appellate Body recommended that the DSB request