The SPS agreement and its application in
the WTO dispute settlement
(Jiangyu Wang)
Part III. Application of The Agreement-Case
Law Study
D. Levels of Protection
As noted previously, Article 5.5 of the SPS
Agreement directed Members to aim at achieving consistency
in the application of the concept of an appropriate level
of protection.[42] The Panel interpreted this provision
to mean that there were different appropriate levels of
protection in different situations involving the same substance
or the same adverse health effects. For a sanitary measure
to be inconsistent with Article 5.5, each of the following
three elements must be present: (1) the Member adopts "different
appropriate levels of sanitary protection in 'different
situations;"' (2) "the distinction in levels of
protection imposed by the member in the different situations
is 'arbitrary or unjustifiable;"' and (3) "the
distinction in levels of protection results in 'discrimination
or a disguised restriction on international trade."'[43]
Based on this test, the Panel concluded that
the EC had adopted arbitrary and unjustifiable levels of
protection for residues of TBA, zeranol and the natural
hormones resulting from their use for growth promotion (i.e.,
no added residues) when compared to the level of protection
for the natural hormones occurring endogenously, or compared
with residues of carbadox used for growth promotion (i.e.,
an unlimited residue level). In addition, the Panel found
that the difference between the EC level of protection for
the natural hormones as well as for zeranol and TBA when
used for growth promotion, as opposed to no limit for the
natural hormones which occur endogenously in meat and other
foods, resulted in an import ban which restricted international
trade and constituted a discrimination or a disguised restriction
on international trade.[44]
The Appellate Body reviewed the Panel's reading
of Article 5.5 and reversed its conclusion. The Appellate
Body emphasized that in analyzing Article 5.5 it is important
to realize that "the goal set is not absolute or perfect
consistency ... it is only arbitrary or unjustifiable inconsistencies
that are to be avoided."[45] As to the Panel's interpretation
of the term "different situations" in the first
element, the Appellate Body concluded that the situations
can be compared if they have common elements, but not if
they are totally different.[46]
The Appellate Body then addressed the second
element of Article 5.5, arbitrary or unjustifiable differences
in levels of protection. As to hormones occurring naturally
in meat and those that have been administered as hormones
for therapeutic or zootechnical purposes, the Appellate
Body ultimately rejected the Panel's conclusion that these
situations are arbitrary or unjustifiable.[47] Next, the
Appellate Body addressed the issue of the hormones as compared
to carbadox. After reviewing the arguments set forth on
both sides, it agreed with the Panel's conclusion that the
distinction in the levels of protection is "arbitrary
or unjustifiable."[48]
The Appellate Body then turned to the third
element of Article 5.5, that the distinction in levels of
protection results in "discrimination or a disguised
restriction on international trade." Although it agreed
with the Panel on some points, it found that "the answer
to the question whether arbitrary or unjustifiable differences
or distinctions in levels of protection established by a
Member do in fact result in discrimination or a disguised
restriction on international trade must be sought in the
circumstances of each individual case."[49] In the
present case, this issue arises as to carbadox. Ultimately,
the
Appellate Body concluded that the measure
did not "result in discrimination or a disguised restriction
on international trade."[50]
As a result, the Appellate Body reversed the
conclusion of the Panel that the EU did not comply with
the requirements of Article 5.5.[51]
In the Austria-Solomon case, the Appellate
Body followed the same three-element test, concluding that
Austria had acted inconsistently with its obligation under
Article 5.5
(* Footnote Omitted)
