TWN Info Service on WTO and Trade Issues  (Sept10/03)
14 September 2010
Third World Network

Australia appeals WTO apple panel ruling
Published in SUNS #6989 dated 1 September 2010 

Geneva, 31 Aug (Kanaga Raja) -- Australia on Tuesday formally appealed the panel ruling in the dispute brought against it by New Zealand over the nearly 90-year-old Australian measures affecting the importation of apples from New Zealand.

The panel report, made public on 9 August, had been tabled for adoption at a meeting of the WTO Dispute Settlement Body (DSB) on Tuesday.

New Zealand had prevailed on most of its claims in the dispute with Australia.

The panel report had noted that Australia had banned the importation of New Zealand apples in 1921, following the entry and establishment of fire blight, a plant disease, in Auckland in 1919. In 1986, 1989 and 1995, New Zealand applied for access to the Australian apple market. In each case, its application was rejected.

Following a new request for access to the Australian market filed by New Zealand in January 1999, the Australian Quarantine and Inspection Service (AQIS) initiated the import risk analysis for New Zealand apples, which was the subject of the dispute. The Final Import Risk Analysis Report for Apples (IRA) from New Zealand was issued by Biosecurity Australia, a prescribed agency, in November 2006.

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 New Zealand. In addition to fire blight, European canker and apple leafcurling midge (ALCM), the IRA also included assessments of eight other pests.

New Zealand had requested the panel to find that the challenged measures, both individually and as a whole, are inconsistent with the obligations of Australia under the following provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement): Articles 2.2 and 2.3, Articles 5.1, 5.2, 5.5 and 5.6, Article 8, and Annex C(1)(a).

New Zealand had argued that Australia's measures were "maintained without sufficient scientific evidence", and that there was no "rational or objective" relationship between those measures and scientific evidence.

Therefore, according to New Zealand, the measures were inconsistent with Article 2.2 of the SPS Agreement.

Australia's measures were also not based on a "risk assessment" within the meaning of Article 5.1 and Annex A and were therefore inconsistent with Article 5.1 of the SPS Agreement, said New Zealand.

In a nearly 600-page report, the panel ruled that the Australian measures against the import of apples from New Zealand were inconsistent with Australia's WTO obligations.

The panel ruled amongst others that Australia's measures at issue regarding fire blight, European canker 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 dispute, were inconsistent with Articles 5.1 and 5.2 of the SPS Agreement and, by implication, these requirements were also inconsistent with Article 2.2 of the SPS Agreement.

It also said that Australia's measures at issue regarding fire blight, European canker and ALCM, were inconsistent with Article 5.6 of the SPS Agreement. (For full details of the panel ruling, see SUNS #6986 dated 12 August 2010.)

The panel recommended that the Dispute Settlement Body request Australia to bring the inconsistent measures into conformity with its obligations under the SPS Agreement.

In other actions, in respect of the dispute brought by Thailand against anti-dumping measures imposed by the United States on polyethylene retail carrier bags from Thailand, the US made a statement on its implementation of the recommendations adopted by the DSB.

The US told the DSB meeting that it was pleased to report that it has implemented the recommendations and rulings of the DSB in its dispute with Thailand.

The US noted that both it and Thailand had agreed to a reasonable period of time of six months from the adoption of the panel report. The reasonable period of time expired on 18 August 2010, added the US.

It said that the US Department of Commerce recalculated the margins of dumping from the investigation for two respondents, providing offsets for non-dumped comparisons. The recalculated margin for one of the respondents was zero, and the Department has revoked the order with respect to that respondent.

In addition, said the US, the Department recalculated the all-others rate.

According to the US, the implementation of the Department's new determination, including the revocation with respect to one respondent, was effective 28 July 2010, prior to the expiry of the reasonable period of time in this dispute.

Thailand expressed its appreciation for the continued cooperation by the US in this case, especially its timely determination under section 129 of the Uruguay Round Agreement Act.

It said that it will continue to monitor the implementation of this determination to ensure that traders benefit fully from the panel's rulings and recommendations in the dispute. +