TWN Info Service on WTO and Trade Issues (Aug22/01)
4 August 2022
Third World Network

Trade: South Africa initiates dispute over EU measures on citrus fruit
Published in SUNS #9629 dated 4 August 2022

Geneva, 3 Aug (Kanaga Raja) -- South Africa has initiated a dispute at the World Trade Organization concerning the European Union's regime governing the importation of citrus fruit from South Africa.

As an initial step, South Africa has sought consultations with the European Union. The request was circulated to WTO members on 29 July.

If consultations fail to settle the dispute within 60 days, or if during the 60 days, the consulting parties jointly consider that the consultations have failed, the complaining party may request the establishment of a panel.

This is the first-ever dispute settlement case initiated by South Africa at the WTO.

In its communication to the Dispute Settlement Body (WT/DS613/1), South Africa said the measure at issue is the import restrictions imposed by the EU on citrus fruit from South Africa.

In particular, the EU imposes phytosanitary requirements relating to Thaumatotibia leucotreta (false codling moth) on the importation of South African citrus fruit, it said.

Until recently, South African citrus fruit was freely imported to the EU provided that it was subject to an effective systems approach or another effective post-harvest treatment to ensure freedom from false codling moth, said South Africa.

Accordingly, South Africa developed an effective systems approach, the "Citrus Systems Approach".

Oranges and other citrus products have been exported from South Africa to the EU without significant problems under this systems approach, said South Africa.

Recently, it noted, the EU has made abrupt and radical changes to the applicable phytosanitary requirements for the importation of oranges and other citrus products from South Africa.

South Africa said that as of 14 July 2022, the EU now requires, for the first time, that imports of citrus fruit must undergo specified mandatory cold treatment processes and pre-cooling steps for specific periods (up to 25 days of cold treatment) before importation.

In cases, these processes must be conducted in the exporting country before the consignments are shipped.

South Africa said that these phytosanitary requirements apply to all imports, irrespective of whether the importing Member has an effective systems approach like South Africa's "Citrus Systems Approach" or has another effective post-harvest treatment to ensure freedom from false codling moth.

According to the South African communication, the EU's new requirements impose significant changes on the importation of citrus fruit.

"The EU, however, only provided a 23-day period for implementation of these new requirements. Moreover, these changes are being introduced in the middle of the export season, making implementation even more difficult and time-sensitive," it said.

In addition, there are numerous shipments of citrus fruit en route to the EU with phytosanitary certificates issued between the entry into force of the measure and its date of application, that is, from 24 June 2022 to 14 July 2022, which are based on the EU's then prevailing requirements and South Africa's existing systems approach, it added.

These shipments will reach the EU after 14 July 2022, by which time the EU's new phytosanitary requirements will apply, said South Africa.

It said the extremely short 23-day period for implementation did not allow sufficient time for producers in South Africa to adapt to the EU's new requirements and for South Africa's National Plant Protection Organization (Department of Agriculture, Land Reform and Rural Development) to have a certification procedure in place that would be adequate to certify compliance with the new requirements.

According to the communication from South Africa, the EU's measure is contained in the following instruments:

(i) Regulation (EU) 2016/2031 of the European Parliament of the Council of 26 October 2016 on protective measures against pests of plants, amending Regulations (EU) No 228/2013, (EU) No 652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC, 2000/29/EC, 2006/91/EC and 2007/33/EC - which establishes rules to determine the phytosanitary risks posed by any species, strain or biotype of pathogenic agents, animals or parasitic plants injurious to plants or plant products ("pests") and measures to reduce those risks to an acceptable level;

(ii) Commission Implementing Regulation (EU) 2019/2072 of 28 November 2019 establishing uniform conditions for the implementation of Regulation (EU) 2016/2031 of the European Parliament and the Council, as regards protective measures against pests of plants, and repealing Commission Regulation (EC) No 690/2008 and amending Commission Implementing Regulation (EU) 2018/2019 - which lists the EU's quarantine pests, protected zone quarantine pests and the EU's regulated non-quarantine pests, and the measures on plants, plant products and other objects to reduce the risks of those pests to an acceptable level;

(iii) Commission Implementing Regulation (EU) 2022/959 of 16 June 2022 amending Annex VII to Implementing Regulation (EU) 2019/2072 as regards requirements for the introduction into the Union of certain fruits of Capsicum (L.), Citrus L., Citrus sinensis Pers., Prunus persica (L.) Batsch and Punica granatum L. - which amends the measures on plants, plant products and other objects to reduce the risks of those pests to an acceptable level set out in Commission Implementing Regulation (EU) 2019/2072 of 28 November 2019 described in item (ii) above;

(iv) EFSA Journal, Scientific Opinion, Commodity Risk assessment of Citrus L. fruits from South Africa for Thaumatotibia leucotreta under a systems approach, 8 July 2021 - which assesses the likelihood of pest freedom from false codling moth on South African citrus fruit at the point of entry in the EU considering South Africa's systems approach; and

(v) European and Mediterranean Plant Protection Organization, Pest Risk Analysis for Thaumatotibia leucotreta, 21-26630, September 2013 - which assesses, among other things, the probability of entry, establishment, introduction, and spread of the pest, as well as the potential economic consequences and pest risk management options.

South Africa said that it has significant concerns as to whether the overall changes to this regime are justified.

It said the new EU's requirements are not based on science, lack technical justification, are discriminatory, and are more trade-restrictive than necessary to achieve their objective, among other things.

The EU's import regime on South African citrus fruit as described above appears to be inconsistent with the EU's obligations under the Agreement Establishing the World Trade Organization (WTO Agreement), it added.

In particular, South Africa said that the EU's measure would appear to be:

(i) inconsistent with Article 1.1 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), as it is a phytosanitary measure under the SPS Agreement that is not "applied in accordance with the provisions of this Agreement";

(ii) inconsistent with Article 2.2 of the SPS Agreement, as it is not "based on scientific principles", it is "maintained without sufficient scientific evidence", and it is not "applied only to the extent necessary to protect ... plant life or health";

(iii) inconsistent with Articles 3.1, 3.2, and 3.3 of the SPS Agreement, to the extent that a relevant international standard exists and the EU has failed to base its measure on it or to provide scientific justification to deviate from it;

(iv) inconsistent with Articles 5.1, 5.2 and 5.3 of the SPS Agreement, as it is not "based on an assessment, as appropriate to the circumstances, of the risks to ... plant life or health" and does not "take into account" the factors listed in Articles 5.2 and 5.3 of the SPS Agreement;

(v) inconsistent with Articles 5.5 and 2.3 of the SPS Agreement, to the extent that the EU makes "arbitrary or unjustifiable distinctions in the levels it considers appropriate in different situations" and "discriminate[s] between Members where identical or similar conditions prevail";

(vi) inconsistent with Article 5.6 of the SPS Agreement, as the EU's measure is "more trade-restrictive than required";

(vii) not covered by Article 5.7 of the SPS Agreement, as the EU is not in a situation "where relevant scientific evidence is insufficient"; and, in any event, the EU does not comply with any of the requirements set forth in this provision;

(viii) inconsistent with Articles 6.1 and 6.2 of the SPS Agreement, as the EU fails to adapt its import regime for South African citrus fruit to the "phytosanitary characteristics of the area ... to which the product is destined";

(ix) inconsistent with Article 7, and paragraph 2 of Annex B to the SPS Agreement, because, in a situation in which no "urgent circumstances" apply, the EU does not allow a reasonable interval between the publication of a phytosanitary regulation and its entry into force in order to allow time for producers in exporting Members, and particularly in developing country Members, like South Africa, to adapt their products and methods of production to the requirements of the importing Member;

(x) inconsistent with Article 8 and Annex C of the SPS Agreement, to the extent that the EU does not comply with its obligations regarding control, inspection and approval procedures, including, but not limited to, completion of procedures without undue delay, limitation of information requirements to what is necessary and reasonable, and that, whenever specifications of a product are changed subsequent to its control and inspection in light of the applicable regulations, the procedure for the modified product is limited to what is necessary to determine whether adequate confidence exists that the product still meets the regulations concerned;

(xi) inconsistent with Articles 10.1 and 10.2 of the SPS Agreement, because the EU did not take account of the special needs of South Africa, a developing country Member, in the preparation and application of the measure. In addition, in a situation in which the appropriate level of phytosanitary protection allows the scope for the phased introduction of new phytosanitary measures, the EU did not provide longer time-frames for compliance on products of interest to South Africa so as to maintain opportunities for its exports of citrus fruit;

(xii) inconsistent with Article XI:1 of the GATT 1994, as the EU's measure constitutes a "restriction ... on the importation" of citrus fruit from South Africa;

(xiii) inconsistent with Articles I:1 and III:4 of the GATT 1994, to the extent that the EU discriminates between like products from different origins;

(xiv) inconsistent with Article X:3(a) of the GATT 1994, as the EU fails to apply it in a "uniform, impartial and reasonable manner". +