T RAINING P ROGRAMME F OR T HE G OVERNMENT O F I NDONESIA The SPS Agreement Jogjakarta, Indonesia 26-29 March 2019
A GENDA 1. What is an SPS measure? 2. Main obligations under the SPS Agreement • Risk assessment and sufficient scientific basis – Articles 2.2, 5.1 – 5.3, 5.7 • Non-discrimination – Articles 2.3 and 5.5 • Least trade-restrictiveness – Article 5.6 • Harmonization – Article 3 • Regionalization – Article 6 • Efficient and transparent administration of control, inspection and approval procedures - Article 8 and Annex C 3. Relationship between the SPS Agreement and the GATT 1994
W HAT IS AN SPS MEASURE ? Annex A.1 (paragraph 1) → Focus on purpose: Any measure applied to protect : From risks arising from: (a) the entry, establishment or spread of pests, diseases, disease- carrying organisms or disease- causing organisms (b) additives, contaminants, toxins or disease-causing organisms in foods , beverages or feedstuffs (c) from diseases carried by animals, plants or products thereof, or from the entry, establishment or spread of pests
A RE THESE SPS MEASURES ? • A requirement that pineapples are free from fruit flies to protect humans from viruses. • A measure that bans cigarettes to protect human life/health.
A RE THESE SPS MEASURES ? • A measure that bans apples to protect trees from Fire Blight. • A measure that bans poultry products to protect animals from Avian Influenza.
A RE THESE SPS MEASURES ? • A law passed by Parliament whereby the Poultry Inspection Authority may not use any government funds to complete internal approval procedures to authorize the importation of poultry from China. The law was passed because Parliament is concerned about media reports that hygiene standards in China are poor.
C AN A L ABEL BE AN SPS M EASURE ? Annex A.1 (paragraph 2) : Sanitary or phytosanitary measures include all relevant laws, decrees, regulations, requirements and procedures including, inter alia, end product criteria; processes and production methods; testing, inspection, certification and approval procedures; quarantine treatments including relevant requirements associated with the transport of animals or plants, or with the materials necessary for their survival during transport; provisions on relevant statistical methods, sampling procedures and methods of risk assessment; and packaging and labelling requirements directly related to food safety.
C AN A L ABEL BE AN SPS M EASURE ? • A measure imposing labelling on nutrition facts. • A prohibition from using the label "Sardines" on sardines of the varieties sardinops sagax from the Pacific Ocean .
L ABELS THAT ARE NOT SPS MEASURES Technical regulation : Document which lays down product characteristics or their related processes and production methods, including the applicable administrative provisions, with which compliance is mandatory. It may also include or deal exclusively with terminology, symbols, packaging, marking or labelling requirements as they apply to a product, process or production method.
M AIN OBLIGATIONS UNDER THE SPS A GREEMENT 2 1 3 Non-discrimination Risk Least trade- assessment restrictiveness Main obligations under the SPS Agreement 6 4 5 Efficiency & Harmonization Regionalization Transparency
1. R ISK A SSESSMENT • Article 2.2 : Members shall ensure that any SPS measure “is based on scientific principles and is not maintained without sufficient scientific evidence” . • Article 5.1 : Members shall ensure that their SPS measures "are based on an assessment, as appropriate to the circumstances, of the risks to human, animal or plant life or health".
W HAT IS A R ISK A SSESSMENT ? Annex A, paragraph 4, of the SPS Agreement defines "risk assessment": • Evaluation of the likelihood of entry, establishment or spread of a pest or disease within the territory of an This relates to risks importing Member according to the sanitary or arising from pests or diseases phytosanitary measures which might be applied, and of the associated potential biological and economic consequences. OR • Evaluation of the potential for adverse effects on human or animal health arising from the presence of additives, This relates to food- contaminants, toxins or disease-causing organisms in borne risks food, beverages or feedstuffs.
R ISK A SSESSMENT • Risk assessment need not to be conducted by the regulating Member. • It may be conducted, for example, by an IO such as the WHO or FAO, or another Member, provided that the risk assessment is relevant to the importing Member. • The risk must be assessed "in the real world where people live and work and die". (Appellate Body, EC – Hormones, para. 187 ).
A RE MINORITY VIEWS ACCEPTABLE ? • Minority science: "Article 5.1 does not require that the risk assessment must necessarily embody only the view of a majority of the relevant scientific community" (Appellate Body Report , EC – Hormones , para. 194). Several studies that we I have conducted a study have conducted that suggests that there is a demonstrate that risk from substance X substance X is safe to eat Government can choose which scientific opinion(s) to rely on, as long as each one is from a respected scientific source.
R ELATIONSHIP BETWEEN RISK ASSESSMENT AND SPS MEASURES • "Based on": There must be a "rational relationship" between the conclusions of the risk assessment and the SPS measure. • Case law examples of inconsistency with Articles 5.1 and 2.2: Russia – Pigs No risk assessment Total ban on imports Japan – Apples Negligible risk of fire blight List of burdensome import transmission through requirements "clearly disproportionate" apple fruit to the risk
P ROVISIONAL M EASURES • Art. 5.7: Provisional measures without a risk assessment: o Insufficient relevant scientific evidence o Adopted on the basis of available pertinent information o Seek to obtain the necessary additional information o Review the measure within a reasonable period of time • Japan – Apples : 5 years is not a reasonable period of time, and Japan also did not seek additional information.
2. N ON - DISCRIMINATION • Article 2.3 : Members shall ensure that their SPS measures "do not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between their own territory and that of other Members." SPS measures "shall not be applied in a manner which would constitute a disguised restriction on international trade". • Article 5.5 : each Member shall avoid arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different situations, if such distinctions result in discrimination or a disguised restriction on international trade.
N ON - DISCRIMINATION • Case law examples of discrimination: India – Agricultural Products Imports must be free from No domestic control on low both types of Avian Influenza pathogenic Avian Influenza (high and low pathogenic) Russia – Pigs Imported pig products from Domestic pig products from areas free from African Swine areas free from African Swine Fever are banned Fever are allowed
N ON - DISCRIMINATION • Australia - Salmon Australia was concerned about level of risk in salmon products, but not in other types of fish (e.g. herring used as bait and finfish where risk may have been even higher). Risk of the same disease in herring Risk of fish disease used as bait and in salmon products finfish – NO WORRY! … WORRY! SAME GOVERNMENT
3. L EAST T RADE - RESTRICTIVENESS • Article 2.2 : Members shall ensure that any SPS measure "is applied only to the extent necessary to protect human, animal or plant life or health". • Article 5.6 : "Members shall ensure that such measures are not more trade-restrictive than required to achieve their appropriate level of sanitary or phytosanitary protection, taking into account technical and economic feasibility".
L EAST T RADE - RESTRICTIVENESS • The Appellate Body has observed that Article 5.6 of the SPS Agreement must be read together with footnote 3. • A measure is more trade-restrictive than required if there is an alternative measure: o Reasonably available taking into account technical and economic feasibility; o Achieves the appropriate level of SPS protection; and o It is significantly less restrictive to trade. Korea – Radionuclides : testing for radioactive material vs. total ban
S CIENTIFIC REQUIREMENTS AND N ON - DISCRIMINATION IN A NUTSHELL Article 2.1 SPS - right to take SPS measure consistent with the Agreement SPS Measures must be Art. 2.2 Art. 2.3 SPS Measures must not based on scientific arbitrarily or unjustifiably principles and is discriminate , they must maintained with not be more trade sufficient scientific restrictive than evidence necessary to achieve ALOP Arts. 5.1, Arts. 5.4, Exception: Art. 5.7 5.2, 5.3 5.5, 5.6
Recommend
More recommend
