Abstract
This chapter investigates how two procedural SPS Agreement commitments—transparency and equivalence—hitherto little discussed by legal commentators have influenced the EU’s regulatory practices and their interaction with trading partners on SPS matters. With regard to both sets of disciplines, it details the Agreement’s expectations as elaborated upon by the WTO SPS Committee and then reviews the EU’s performance. An evaluation of the EU’s efforts in 2008 to inform trading partners about upcoming SPS measures demonstrates that while clearly committed to advancing transparency, the EU’s application of SPS norms is inconsistent in practice: non-notification of many EU and EU Member State measures and, in cases, failure to notify in a manner that allows third-country input. A review of the EU’s application of equivalence reveals widespread adoption of the principle, although little formal notification of this use to the SPS Committee. This study identifies factors that complicate coherent EU implementation of SPS obligations. In spite of the deficiencies identified in EU practices, this chapter emphasises the important role of SPS disciplines in stimulating the emergence of a transnational approach to food governance—information-sharing, dialogue and cooperation—that can significantly contribute to reducing technical obstacles to agricultural trade.
This chapter incorporates my article ‘The Impact of WTO Transparency Rules: Is the 10,000th SPS Notification a Cause for Celebration?—A Case Study of EU Practice’ published in (2012) 15 JIEL 503.
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Notes
- 1.
See n 87 below and related text.
- 2.
Regionalisation is a third important principle which is not treated here as of greater relevance to animal health than food safety. For a discussion of regionalisation in an SPS context, see generally J Scott, The WTO Agreement on Sanitary and Phytosanitary Measures. A Commentary (Oxford, OUP, 2007) 179–190; D Prévost, Balancing Trade and Health in the SPS Agreement: The Development Dimension (Nijmegen, Wolf Legal Publishers, 2009) 769–785.
- 3.
For an indication of the scale of costs associated with the border rejection of agricultural imports, see P-C Athukorala and S Jayasuriya, ‘Food Safety Issues, Trade and WTO Rules: A Developing Country Perspective’ (2003) 26 The World Economy 1395, 1399–1400.
- 4.
For a discussion of the interaction between hard and soft law, see GC Shaffer and MA Pollack, ‘Hard Versus Soft Law: Alternatives, Complements and Antagonists in International Governance’ (2010) 94 Minnesota Law Review 706.
- 5.
Their legal status is described as follows: ‘These guidelines do not add to nor detract from the existing rights and obligations of Members under the SPS Agreement.’ SPS Committee, ‘Recommended Procedures for Implementing the Transparency Obligations of the SPS Agreement (Article 7)’ (‘Transparency Procedures’) WTO Document G/SPS/7/Rev.3 (20 June 2008) para 1. Although this most recent version of the procedures was adopted in June 2008, the central obligations, examined below in the study of EU practice in 2008 were already established in 2002. See G/SPS/7/Rev.2 (2 April 2002).
- 6.
SPS Agreement Annex B, para 1.
- 7.
SPS Agreement Annex B, para 7.
- 8.
SPS Agreement Annex B, para 8.
- 9.
See ‘Transparency Procedures’ (n 5) Annexes. The latest version of these notification formats took effect from 1 December 2008.
- 10.
ibid paras 44–47.
- 11.
SPS Agreement Annex B, para 5. The first criterion is not explicitly included in paragraph 5, but forms part of the definition of ‘phytosanitary regulations’ provided in the footnote to paragraph 1.
- 12.
WTO Secretariat, ‘How to Apply the Transparency Provisions of the SPS Agreement: A Handbook Prepared by the WTO Secretariat’ (September 2002) (‘Transparency Handbook’) 11, fn 2, www.wto.org/english/tratop_e/sps_e/spshand_e.pdf.
- 13.
SPS Agreement Annex B, para 1, fn.
- 14.
See Scott (n 2) 198.
- 15.
See GATT Document, MTN.GNG/NG5/WGSP/W/24 (n 45) para 13. In these discussions, the ‘Nordic Delegations’ in particular emphasized that transparency should be ‘limited to essential trade issues’. MTN.GNG/NG5/WGSP/W/10 (12 February 1990) 4.
- 16.
‘Transparency Handbook’ (n 12) para 33.
- 17.
See ‘Transparency Procedures’ (n 5) Annexes A and B.
- 18.
MTN.GNG/NG5/WGSP/W/21 (28 May 1990) Annex I, para 2.
- 19.
This was the approach adopted by the Panel in Biotech. See EC—Measures affecting the Approval and Marketing of Biotech Products, Panel Report (adopted in November 2006) WT/DS/291–293/R, paras 7.1775–7.1776 (rejecting the US’s claim that Annex B is applicable to the EU’s failure to consider specific applications for GM events, on the basis that the measures under discussion were product-specific, and therefore not ‘generally applicable’).
- 20.
See Scott (n 2) 199 and Prévost (n 2) 794.
- 21.
Scott (n 2) 199.
- 22.
Prévost (n 2) 794.
- 23.
However (and illustrating the potential for confusion), in a questionnaire to WTO Members on the operation of SPS Enquiry Points and National Notification Authorities in 2006, the WTO Secretariat implied yet another more restrictive interpretation: ‘Annex B of the SPS Agreement requires notification of new or changed sanitary and phytosanitary regulations that are not based on an international standard.’ G/SPS/W/103/Rev.2 (8 December 2006) 4 (emphasis added).
- 24.
See G/SPS/GEN/778 (Canada, 7 June 2007) and G/SPS/W/159 (EU, 14 October 2004).
- 25.
‘Transparency Procedures’ (n 5) para 8.
- 26.
A significant effect on trade can refer to trade ‘between two or more Members’. ibid para 9.
- 27.
Japan—Measures Affecting the Importation of Apples (Japan—Apples), Panel Report (adopted 15 July 2003) WT/DS/245/R, para 8.314.
- 28.
‘Transparency Procedures’ (n 5) para 10.
- 29.
ibid.
- 30.
Japan—Apples, Panel Report, para 8.314.
- 31.
T Collins-Williams and R Wolfe, ‘Transparency as a Trade Policy Tool: The WTO’s Cloudy Windows’ (2010) 9 World Trade Review 9 551, 574.
- 32.
‘Transparency Procedures’ (n 5) para 31.
- 33.
WT/MIN (01)/17, para 3.2.
- 34.
‘Transparency Procedures’ (n 5) para 13. As from December 2008, an exception to the recommended sixty-day period applies for those measures which ‘facilitate trade’ or are substantially the same as international standards.
- 35.
ibid para 33.
- 36.
SPS Agreement Annex B, paras 2 and 6.
- 37.
‘Transparency Procedures’ (n 5) para 19.
- 38.
ibid para 31.
- 39.
The EU Notification Authority & Enquiry Point (EU NA & EP) reports that its ‘notifications are very welcomed (sic) by the trade partners because it is a strong signal of the importance that the EU give to the transparency in the legislative procedure.’ European Commission, ‘EU NA & EP Activity Report Year 2007’, 3. All EU NA & EP Activity Report reports are available at ec.europa.eu/food/international/organisations/sps/transparency_en.htm. Access to earlier reports can be requested from the EU NA & EP.
- 40.
In 2007, only the US (410) and Brazil (197) exceeded the 58 notifications submitted by the EU. In 2008, the EU’s 49 notifications placed them as the seventh most active notifier. ibid 4.
- 41.
Consolidated texts form one of the search options available at eur-lex.europa.eu/en/index.htm.
- 42.
- 43.
See n 45.
- 44.
See G/SPS/GEN/1044 (8 October 2010). The EU has itself lauded such candour, being ‘the only WTO member which has published such a complete review of its deviations from international standards’. WTO/TPR/M/248/Add.1 (31 August 2011) 418.
- 45.
The WTO Secretariat has long acknowledged the limited significance in terms of evaluating Members’ transparency of the data on notification generally collected. See G/SPS/GEN/804 (11 September 2007) paras 10 and 23.
- 46.
In spite of the ready access to EU legislation and various search functions available, identifying SPS measures requires a day-by-day review of all legislation appearing in the EU’s Official Journal. In spite of all efforts to undertake a comprehensive evaluation, given the sheer quantity of EU legislation, some measures may well have been overlooked.
- 47.
2008 was chosen as a reference point in order to be able to evaluate subsequent WTO member reaction or possible trade concerns arising from any failure to notify regulatory measures. The author has no reason to believe that EU notification practice was in any way exceptional in this period. The irony should not be overlooked that the ability to take a more critical look at the operation of the EU’s transparency practices is itself a product of the considerable information publicly available in Europe.
- 48.
As WTO Members must notify measures in advance of adopting regulations, in order to assess transparency practice in 2008, the reference period took into account notifications made between 1 August 2007 and 31 December 2008, but for simplicity will be referred to throughout this article as ‘2008’.
- 49.
Other notifications covered animal health or plant protection measures.
- 50.
13 of these related to permission of countries to export meat or fishery products, 7 concerned the authorisation of novel foods, 6 established maximum residue or contaminant levels, 5 were related to GM food authorisations, 5 more responded to food safety problems associated with specific products from a given country, 4 concerned food hygiene, 4 approved residue monitoring plans, 4 were Common Positions on various additive Regulations and 2 were corrigenda (see Appendix I for details).
- 51.
Regulation of the European Parliament and of the Council 178/2002 [2002] OJ L31/1, Art 5.3.
- 52.
See n 24 and related text.
- 53.
See ns 18–19 and related text.
- 54.
G/SPS/N/EEC/332 (12 August 2008).
- 55.
G/SPS/N/EEC/333 (12 August 2008).
- 56.
See respectively Commission Decision 2008/630/EC [2008] OJL 205/49; Commission Decision 2008/289/EC [2008] OJ L 96/29; Commission Decision 2008/866/EC [2008] OJ L307/9.
- 57.
G/SPS/N/EEC/330 (12 August 2008).
- 58.
See Commission Regulation 61/2008/EC [2008] OJ L22/8; Commission Regulation 542/2008/EC [2008] OJ L157/43.
- 59.
G/SPS/N/EEC/335 (13 February 2009).
- 60.
Commission Regulation 798/2008 [2008] OJ L226/1. However, subsequent changes to the third country lists in Regulation 798/2008 were notified in 2009, under G/SPS/N/EEC/348 (24 July 2009) and G/SPS/N/EEC/349 (29 July 2009).
- 61.
European Commission, ‘Proposal for a Council Regulation implementing Regulation (EC) No 853/2004 of the European Parliament and of the Council as regards the use of antimicrobial substances to remove surface contamination from poultry carcases’, COM/2008/0430 final.
- 62.
See s 4.4.1 in Chap. 4 above.
- 63.
Commission Decision 2008/47/EC [2008] OJ L11/12.
- 64.
EU Member States are free to adopt national SPS measures in the absence of pertinent European law. There is an obligation to notify such measures. See Directive 98/34/EC of the European Parliament and of the Council [1998] OJ L204/37. For an explanation of how EU Member States’ draft measures are procedurally managed in the WTO SPS context, see G/SPS/GEN/456 (5 December 2003) paras 7–8. For an overview of national notifications received, see the Commission’s Technical Regulations Information System available at ec.europa.eu/enterprise/tris/.
- 65.
All three were related to proposals submitted by the Netherlands, namely G/SPS/N/NLD/66 (28 April 2008), G/SPS/N/NLD/67 (3 July 2008) and G/SPS/N/NLD/68 (17 July 2008).
- 66.
The notification system provided for under Directive 98/34/EC specifically requires Member States to indicate whether the proposed measures are of relevance to either the TBT or SPS Agreement.
- 67.
Consider, for example, Italy’s ministerial decree concerning beta-carotene supplements, TRIS Notification Number 2008/329/I) and The Netherland’s draft regulation concerning eel smoked fresh daily (TRIS Notification Number 2008/268/NL). See n 70.
- 68.
Addenda are also submitted to indicate that the period for comments has been extended, if a proposal is withdrawn or where the timing or the impact of the regulation was not clear in the original notification. ‘Transparency Procedures’ (n 5) para 36.
- 69.
The delay in notifying the publication of regulations varied from three to 119 days.
- 70.
This was the case for G/SPS/N/EEC/316 (1 August 2007); G/SPS/N/EEC/317 (20 November 2007); G/SPS/N/EEC/321 (22 January 2008); G/SPS/N/EEC/329 (3 April 2008). With regard to the latter, the publication was notified under G/SPS/N/EEC/328/Add1 (10 July 2008), but this will not have been obvious to other Members trying to follow up on the original notification. Lapses regarding publication are notable, given that this failing has been one of the specific complaints raised by the EU in the past. See G/SPS/W/159 (n 24) paras 4–5.
- 71.
See Appendix I for details. The EU’s long-term performance is no better in this respect. In 2007, the EU reported the overall notification of 20 co-decision proposals. See G/SPS/GEN/803 (10 October 2007) para 4 and Annex.
- 72.
See ns 39–42 and related text.
- 73.
See n 33 and related text.
- 74.
See for example Commission Decision 2008/752/EC [2008] OJ L261/1, Art 2 (providing a 6 month period to amend certification for import of ungulate animals).
- 75.
This is the case for G/SPS/N/EEC/316 (n 70); G/SPS/N/EEC/317 (n 70); G/SPS/N/EEC/318 (21 November 2007); G/SPS/N/EEC/319 318 (21 November 2007); G/SPS/N/EEC/328 (18 March 2008); G/SPS/N/EEC/329 (n 70); G/SPS/N/EEC/330 (n 57); G/SPS/N/EEC/331 (14 July 2008); G/SPS/N/EEC/335 (n 59); G/SPS/N/EEC/336 (11 November 2008); G/SPS/N/EEC/338 (24 December 2008).
- 76.
G/SPS/N/EEC/323 (5 February 2008); G/SPS/N/EEC/326 (3 March 2008).
- 77.
Annex B, para 6 permits Members to ‘omit’ some of the standard requirements for notification in cases where ‘urgent problems of health protection arise or threaten to rise’. The two emergency notifications presented by the EU in 2008 are G/SPS/N/EEC/324 (27 February 2008); G/SPS/N/EEC/339 (8 January 2008).
- 78.
G/SPS/N/EEC/332 (12 August 2008) (relating to guar gum from India); G/SPS/N/EEC/333 (n 55) (concerning sunflower oil of Ukrainian origin).
- 79.
G/SPS/N/EEC/321 (n 70).
- 80.
SPS Agreement Annex B, para 5(d).
- 81.
The relevant decisions on contaminants in foodstuffs relating to regulations notified in G/SPS/N/EEC/328 (n 75) and G/SPS/N/EEC/329 (n 75) can be found in European Commission, ‘Summary Record of the Standing Committee on the Food Chain and Animal Health, Section Toxicological Safety of the Food Chain’ (SANCO–D1 (2008) D/410761, 11 April 2008) 1–2.
- 82.
G/SPS/N/EEC/328 (n 75) was notified on 24 December 2008, the measure having been adopted by Member States 12 days earlier. See ‘Summary Record of the Standing Committee on the Food Chain and Animal Health, Section Toxicological Safety of the Food Chain’ (SANCO–D1 (2008) D/412413, 12 December 2008) 1.
- 83.
The detail of the cases below is provided thanks to the kind help of the EU NA & EP.
- 84.
In 2008, 36 comments were made in total originating from 10 countries, the majority of which were food safety related. For further information, see European Commission, ‘EU NA & EP Activity Report Year 2008’ (n 45) 1.
- 85.
By way of example, the EU responded in July 2008 to US comments on a proposal for setting maximum levels for certain contaminants in foodstuffs (G/SPS/N/EEC/328) (n 75) with a detailed explanation of the scientific basis for each of the new levels and relevant references.
- 86.
Commission Regulation 1097/2009 [2009] OJ L301/6.
- 87.
The US comments in response to notification G/SPS/N/EEC/320 (30 November 2007) concerned the incompatibility of EU requirements to issue certificates on the day of inspection of one-day old chicks with the US practice of issuing certificates at the moment of consignment. Member States had already agreed in November 2007 to make compromises on this requirement. However, the US followed up with a request to certify day-old chicks before they were hatched, a demand which was incompatible with Council Directive 96/93/EEC [1997] OJ L13/97. A series of discussions between EU and US representatives finally led the US to revise its internal procedures for consultation in order to meet amended EU requirements.
- 88.
See European Commission, ‘EU NA & EP Activity Report Year 2005’ (n 39) 7 (in which the EU’s commitment to providing technical assistance in this context is stressed).
- 89.
This would certainly be the case for the updating of lists of authorized third countries for exporting animal products to the EU or approvals of third country residue monitoring plans.
- 90.
In the EU context, a single sounding of overall third country interests, in response to the original notification, may be the only efficient manner to incorporate concerns. This is the tenor of EU comments that ‘there are advantages in notifying proposals to the European Parliament at early stage (sic) because there is still time to introduce changes.’ G/SPS/GEN/803 (n 71) para 4.
- 91.
Consider, for example, Slovenian rules on the amendments to certain hygiene-related technical requirements for milk processing factories on high mountains, TRIS 2008/274/SI. See n 70. An indication of the limited impact of national legislation is that only four specific trade concerns have ever been raised in relation to specific EU Member State regulations or practices. See G/SPS/R/17 (24 February 2000) paras 87–88; G/SPS/R/31 (23 December 2003) paras 47–49; R/36/Rev.1 (14 June 2005) paras 32–33; G/SPS/R/37/Rev.1 (18 August 2005) paras 72–73.
- 92.
In its 2009 Trade Policy Review, the EU claimed that ‘as external trade issues are to a large extent harmonized at the EU level, including in the field of SPS, it is very unusual for problems of MS compliance with their WTO/SPS Agreement obligations to arise.’ WT/TPR/M/214/Add.1 (2 July 2009) 219.
- 93.
Brazil, for example, has a reputation for being very thorough, but not particularly selective in its notifications. See, e.g. G/SPS/N/BRA/417 (19 May 2008) (notifying quality standards for fermented beverages seemingly unrelated to public health concerns).
- 94.
This is an observation made by the EU NA & EP in an interview in November 2009.
- 95.
The reported practice in the EU is to consider ‘secondary’ changes, such as changes to Annexes as Addenda, and significant textural changes to a Regulation as meriting notification. Third countries could be excused for not grasping the distinction. Consider the different approaches to revisions to substance limits in pesticides legislations (via addenda under G/SPS/N/EEC/196, 11 April 2004) and contaminants (via regular notification under G/SPS/N/EEC/328, n 85).
- 96.
See ‘Transparency Procedures’ (n 5) Annex A–1.
- 97.
Commission Regulation 669/2009 [2009] OJ L194/11. This regulation was notified as in conformity with international standards under G/SPS/N/EEC/341 (18 March 2008).
- 98.
G/SPS/R/47 (8 January 2008) para 21.
- 99.
For a detailed explanation of this process, see the flowcharts in G/SPS/GEN/456 (n 64) 10–11.
- 100.
Non-notification of the proposal relating to microbiological treatment referred to above (n 61) could be one example. Another is the finding of food imported from China adulterated with melamine. The EU was reluctant to bring the matter formally to the attention of the SPS Community and only did so (G/SPS/N/EEC/339, n 77) following interventions by other trading partners.
- 101.
This conclusion is drawn from analysis of trade concerns raised about EU SPS measures by WTO Members since 2008 (see the SPS Information Management System, spsims.wto.org) and comments made by third countries in 2009 and 2011 EU WTO Trade Policy Reviews, see WT/TPR/M/214/Add.1 (n 92) and WTO/TPR/M/248/Add.1 (31 August 2011) respectively. While there are numerous criticisms of various aspects of EU policy, these do not concern those non-notified measures listed in Appendix I.
- 102.
In October 2011, the Multilateral International Relations Unit in DG Sanco responsible for the EU NA & EP produced a detailed internal Procedural Manual to facilitate a standardised approach by Commission officials to the SPS notification process.
- 103.
See G/SPS/N/EEC/321 (n 70) (relating to EFSA Guidance on submission of a dossier for safety evaluation of recycling practices for food contact materials); G/SPS/N/EEC/135 (6 August 2001) (Recommendation on the reduction of the presence of dioxins and PCBs in feedingstuffs).
- 104.
See, for example, G/SPS/GEN/557 (29 March 2005) (on active substances for plant protection); G/SPS/GEN/539 (4 February 2005) (on food traceability); G/SPS/GEN/588 (8 July 2005) (on regionalization).
- 105.
See G/SPS/GEN/719 (8 August 2006) (calling for ‘early comments’ on a Commission report on animal by-products not intended for human consumption).
- 106.
Under the mentoring system first proposed by New Zealand (see G/SPS/W/214, 1 October 2007), the EU currently provides assistance to Senegal and Kenya.
- 107.
See S Zarrilli, ‘WTO Agreement on the Sanitary and Phytosanitary Measures: Issues for Developing Countries’ (South Centre 1999) s III.3, www.carib-export.com/obic/documents/WTO_Agreement_On_Sanitary_and_Phytosanitary_Measures.pdf.
- 108.
Zarrilli sees equivalence as ‘a key instrument to enhance market access for [developing countries’] products’. ibid. See also G/L/445 (21 March 2001) para 7.
- 109.
SPS Agreement Art 4.1.
- 110.
Prévost (n 2) 759.
- 111.
To cite in full, the AB found:
The “appropriate level of protection” established by a Member and the “SPS measure” have to be clearly distinguished. They are not one and the same thing. The first is an objective, the second is an instrument chosen to attain or implement that objective. It can be deduced from the provisions of the SPS Agreement that the determination by a Member of the “appropriate level of protection” logically precedes the establishment or decision on maintenance of an “SPS measure”.
Australia—Measures Affecting Importation of Salmon (Australia—Salmon), Appellate Body Report (adopted 20 October 1998) WT/DS18/AB/R, paras 200–201 (footnote omitted, emphasis in original).
- 112.
Australia—Salmon, Appellate Body Report, para 203.
- 113.
SPS Committee, ‘Decision on the Implementation of Article 4 of the Agreement in the Application of Sanitary and Phytosanitary Measures’(‘Equivalence Decision’) G/SPS/19/Rev.2 (23 July 2004) para 2. It should be noted that the legal status of this Decision is unclear. The Panel in US Poultry, while considering the Decision to contribute to Members understanding of equivalence, note that it ‘is not binding and does not determine the scope of Article 4’. United States—Certain Measures Affecting Imports of Poultry from China, Panel Report (adopted 29 September 2010) WT/DS392/R, para 7.136. For a discussion hereof, see Marsha Echols, ‘Equivalence and risk regulation under the World Trade Organization’s SPS Agreement’ in G Van Calster and D Prévost (eds), Research Handbook on Environment, Health and the WTO (Cheltenham, Edward Elgar, 2013) 94.
- 114.
Scott (n 2) 166–167.
- 115.
‘Equivalence Decision’ (n 113) para 7 (emphasis added).
- 116.
‘Equivalence Decision’ (n 113) para 5.
- 117.
It in fact implies that Members are maintaining measures that are not justified by the risk concerned, which would arguably anyway breach Article 2.2.
- 118.
Note, in this respect, US comments on equivalence, G/SPS/GEN/212 (7 November 2000) para 15 (bemoaning the ‘inherent difficulty in linking numerous and disparate measures to a country’s ALOP’).
- 119.
G/SPS/GEN/243 (9 April 2001) para 7.
- 120.
D Regan, ‘United States—Certain Measures Affecting Imports of Poultry from China: The Fascinating Case that Wasn’t’ (2012) 11 World Trade Review 273, 285.
- 121.
G/SPS/GEN/232 (28 February 2001) para 10.
- 122.
Codex Alimentarius, ‘Guidelines on the Judgement of Equivalence of Sanitary Measures Associated Food Inspection and Certification Systems’ (‘Codex Equivalence Guidelines’) (CACGL 53-2003) para 13.
- 123.
‘Infrastructure’ includes the legal framework and administrative systems, whereas ‘programme design, implementation and monitoring’ refers to documentation systems, monitoring and laboratory capabilities and certification and audit capacities. ibid para 13.
- 124.
See European Commission, ‘General Guidance on EU import and transit rules for live animals and animal products from third countries’ (SANCO/7166/2010) (‘Commission General Guidance on EU Imports’) 4–6, ec.europa.eu/food/international/trade/index_en.htm.
- 125.
In addition to the ‘Codex Equivalence Guidelines’ (n 122), see Codex Alimentarius, ‘Guidelines for the Development of Equivalence Agreements regarding Food Inspection and Certification Systems’ (CAC/GL 34-1999).
- 126.
ALINORM 01/30A, para 78.
- 127.
See Prévost (n 2) 769.
- 128.
‘Equivalence Decision’ (n 113) para 3.
- 129.
‘Equivalence Decision’, ibid para 5.
- 130.
‘Equivalence Decision’, ibid para 7.
- 131.
‘Equivalence Decision’, ibid para 8.
- 132.
‘Equivalence Decision’, ibid para 12.
- 133.
The suspicion of deliberate obstruction of agricultural imports is never far away. Mehta and George, for example, claim that ‘it has been a strategy of EU countries to introduce newer and stricter residue limits every time a need arises to restrict imports from developing countries.’ R Mehta and J George, ‘Processed Food Products Exports from India: An Exploration with SPS Regime’ (Joint Research Project sponsored by the Australian Centre for International Agricultural Research, 2003) 20, digitalcollections.anu.edu.au/bitstream/1885/41962/1/aciar%20_2003_mehta_george.pdf.
- 134.
See, for example, M Broberg, ‘European Food Safety Regulation and the Developing Countries: Regulatory Problems and Possibilities’ (DIIS Working Paper 2009:09) 11–12 (citing the example of the difficulty of monitoring Indian dairy producers reliant on many farmers with a limited number of cows) www.acp-eu-trade.org/library/files/Morten_EN_010109_DIIS_European_Food_Safety_Regulation_web.pdf; O’Connor and Company, ‘The EC Traceability and Equivalence Rules in Light of the SPS Agreement: A Review of the Many Legal Issues’ (CTA 2003) 17 (explaining the difficulties of applying traceability rules in countries where producers will combine products in order to have adequate exportable quantities) agritrade.cta.int/en/content/view/full/1696.
- 135.
S Ponte, ‘Bands, Tests and Alchemy: Food Safety Standards and the Ugandan Fish Export Industry’ (DIIS Working Paper 2005:19) 57 (pointing to the lack of any evidence of unsafe fish in the case of the EU’s ban of imports of Ugandan fish) subweb.diis.dk/graphics/Publications/WP2005/19_spo_bans_tests_alchemy.pdf.
- 136.
In a much-cited paper, it was demonstrated that EU aflatoxin standards, stricter than international limits, would decrease African exports by 64 % while reducing health risk by around 1.4 deaths per billion per year. T Otsuki, JS Wilson and M Sewadeh, ‘Saving Two in a Billion: Quantifying the Trade Effect of European Food Safety Standards in African Exports’ (2001) 26 Food Policy 495. For a robust counter to this perspective, see LB Diaz Rios and S Jaffee, ‘Barrier, Catalyst or Distraction? Standards, Competitiveness, and Africa’s Groundnut Exports to Europe’ (World Bank, Agricultural, and Rural Development Discussion Paper 39, 2008)
siteresources.worldbank.org/INTARD/Resources/AflatoxinPaperWEBpdf.
- 137.
‘Public Citizen’s Global Trade Watch Director Lori Wallach Testifies before House Appropriations Subcommittee on Culture, Rural Development, FDA and Related Agencies’ Fair Disclosure Wire (28 July 2009).
- 138.
While a less prominent consumer concern than in the US, research has demonstrated that, European consumers are more concerned about the safety of imported than EU origin food (54 % and 34 % respectively). Safe Food, Where does our Food Come from? (July 2009) www.safefood.eu/Publications/Research-reports/Where-does-our-food-come-from-.aspx.
- 139.
See WT/TPR/214/Add.1 (2 July 2009) 213–214 (in response to a series of Canadian questions attempting, in vain, to draw the EU into more expansive reflections on its sanitary regime).
- 140.
G/L/423 (29 November 2000) para 7. See also Regan (n 120) 293–295 (reflecting on the mertis of different types of origin-neutral and origin-specific equivalence regimes given the aims of SPS Agreement Article 4).
- 141.
For an overview of all existing EU sanitary and phytosanitary agreements, see ec.europa.eu/food/international/trade/agreements_en.htm.
- 142.
The EU’s attempt to negotiate a free trade agreement (FTA) with Canada is also reported to include SPS provisions extending beyond those currently included in the Veterinary Agreement. ‘Significant Challenges Remain as Canada, EU Seek FTA Mandates’ Inside US Trade (10 April 2009).
- 143.
The EU’s agreement with New Zealand, for instance, has been revised on four occasions between 1996 and 2006. For details, see webpage indicated in n 141.
- 144.
All imports of animal products into the EU are subject to documentary checks, identity checks and where appropriate, physical checks.
- 145.
In the case of the Agreement between the EU and New Zealand, for example, the necessary certification can be delivered while the consignment is in transit rather than having to accompany the consignment, provided that it is available to border inspectors on arrival in the EU. See H Batho et al, ‘The EU Veterinarian: Animal health, welfare and veterinary public health developments in Europe since 1957’ (European Commission, August 2007) 435 (‘The EU Veterinarian’) ec.europa.eu/food/resources/the_eu_veterinarian_080410.pdf.
- 146.
From the veterinary perspective, the view is that ‘the increased information exchange has given a greater understanding of, and confidence in, all parties’ veterinary systems and has probably resulted in fewer trade disputes’. ibid 438.
- 147.
See US comments in G/SPS/GEN/212 (n 118) para 16. For a discussion of the complexities surrounding meat equivalence, see Echols (n 113) 97–99.
- 148.
Council Directive 72/462/EEC on health and veterinary inspection problems upon importation of bovine animals and swine and fresh meat from third countries [1972] OJ L302/28.
- 149.
G/SPS/GEN/304 (12 March 2002) para 3. The EU’s comments pertained specifically to the import conditions for fishery products, but are equally valid for other animal products.
- 150.
For more detail of this process and the relevant European legislation, see ‘Commission General Guidance on EU Imports’ (n 124).
- 151.
G/SPS/GEN/304 (n 149) paras 11–12.
- 152.
In 2008, 10 % of all Rapid Alerts notified related to mycotoxin contamination, of which 76 % were related to nuts and nut products. European Commission, Rapid Alert System for Food and Feed Annual Report 2008 (Office for Official Publications of the European Communities 2008) 20 and 37 respectively.
- 153.
Regulation (EC) No 882/2004 of the European Parliament and of the Council on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules [2004] OJ L165/1, Art 3 (providing that the frequency of official controls should be determined by the level of risk).
- 154.
Confidence in the US control systems was established through an FVO visit in September 2006 and subsequent follow-up on the recommendations made. See European Commission, ‘Final Report of a Mission Carried out in the United States of America from 18 September to 22 September 2006 in Order to Assess Control Systems in Place to Control Aflatoxin Contamination in Peanuts Intended for Export to the European Union’ (DG (Sanco)/8117/2006–MR Final). All FVO reports are available at ec.europa.eu/food/fvo/index_en.cfm.
- 155.
See Commission Decision 2008/47/EC approving the pre-export checks carried out the United States of America on peanuts and derived products thereof as regards the presence of aflatoxins [2008] OJ L11/12, in particular Art 4.
- 156.
For background to this incident, see D Schramm, ‘The Race to Geneva: Resisting the Gravitational Pull of the WTO in the GMO Labelling Controversy’ (2007) 9 Vermont Journal of Environmental Law 93.
- 157.
Commission Decision 2006/601/EC on emergency measures regarding the non-authorised genetically modified organism ‘LL RICE 601’ in rice products [2006] OJ L306/17.
- 158.
See European Commission, ‘Summary Record of the Standing Committee on the Food Chain and Animal Health, Held in Brussels on 10 October 2007’; ‘Summary Record of the Standing Committee on the Food Chain and Animal Health, Held in Brussels on 19 and 20 December 2007’. Both are available at ec.europa.eu/food/committees/regulatory/scfcah/modif_genet/index_en.htm.
- 159.
Commission Decision 2008/162/EC amending decision 2006/601/EEC on emergency measures regarding the non-authorised genetically modified organism ‘LL RICE 601’ in rice products [2008] OJ L52/25.
- 160.
See G/L/423 (n140) para 5.
- 161.
G/SPS/GEN/304 (n 149) para 4.
- 162.
More specifically, food business operators are expected to ‘put in place, implement and maintain a permanent procedure or procedures based on HACCP principles’. Regulation (EC) No 852/2004 of the European Parliament and of the Council on the hygiene of foodstuffs [2004] OJ L139/1, Art 5.4.
- 163.
The EU intends its new hygiene regulations to establish rules ‘more flexible than the old system, as [they] can be adapted to all situations’. European Commission, ‘Guidance Document on certain key questions related to import requirements and the new rules on food hygiene and on official food controls’ (January 2006) ec.europa.eu/food/international/trade/interpretation_imports.pdf.
- 164.
G/SPS/GEN/304 (n 149) para 5.
- 165.
For an illustration of this approach, see European Commission, ‘Final Report of a Mission Carried out in Ghana from 13 October to 18 October 2008 in Order to Evaluate the Control Systems in Place Governing the Production of Fishery Products Intended for Export to the European Union’ (DG (SANCO)/2008-7659–MR- FINAL).
- 166.
European Commission, ‘Final Report of a Mission Carried Out in Mexico from 04 September to 11 September 2008 in order to evaluate Public Health Control Systems and Certification Procedures over Production of Horse Meat Intended for Export to the EU’ (DG (SANCO)/2008-7979–MR- FINAL).
- 167.
European Commission, ‘Final Report of a Mission Carried Out in Thailand from 09 September to 19 September 2008 in order to evaluate the equivalence with Community Standards of the Control Systems in Place Governing the production of Wild and Farmed Fishery Products and Bivalve Molluscs Intended for Export to the European Union’ (DG (SANCO)/2008-7650–MR- FINAL).
- 168.
European Commission, ‘Final Report of a Mission Carried Out in Bangladesh from 12 November to 19 November 2008 in order to evaluate the Control of Residues in Aquaculture Products and the Public Health Conditions for the Production of Fishery and Aquaculture Products Intended for Export to the EU’ (DG (SANCO)/2008-7655–MR- FINAL).
- 169.
Ponte suggests that through non-comprehensive inspection of Uganda’s fish chain, the EU is guilty of sustaining ‘a well-functioning “indulgence regime” that is cleverly and cooperatively managed by regulators, industry, and perhaps the EU as well (through active negligence)’. Ponte (n 135) 72.
- 170.
See examples in n 78.
- 171.
Consider, e.g. the efforts undertaken by the EU and Bolivia to establish a pre-export certification programme to facilitate the export of Brazil nuts. Bilateral discussions were initiated in September 1998 and were only completed—following a series of plan submissions, counter-proposals, inspection and technical negotiations—in 2004. See G/SPS/GEN/204/Rev.9/Add.3 (6 February 2009) 30–32.
- 172.
G/SPS/GEN/304 (n 149) para 8. Where systemic deficiencies are identified, examples of this flexibility include granting restricted equivalence for specific establishments or a limited range of products, and the possible outsourcing of inspection controls to other third countries. See paras 7–8.
- 173.
A delay in responding to a third country request exceeding six months would be exceptional. Interview with DG Sanco official, September 2011.
- 174.
See ‘Commission General Guidance on EU Imports’ (n 124) 5, para 7.
- 175.
‘Equivalence Decision’ (n 113) para 8. This is expressed in slightly stronger terms than the corresponding Article 9 of the SPS Agreement.
- 176.
See, for example, the fruitful request for technical assistance made by Belize to the EU reported in G/SPS/GEN/912 (16 March 2009). See also Ponte (n 135) 58 (explaining how EU funding helped 14 Ugandan fish processing plants successfully upgrade quality systems to permit export).
- 177.
See G/SPS/GEN/839 (8 April 2008).
- 178.
See European Commission, Better Training for Safer Food, Annual Report 2007 (Luxembourg, Office for Official Publication of the European Communities, 2008).
- 179.
- 180.
European Commission, SPS Newsletter (July 2009) trade.ec.europa.eu/doclib/cfm/doclib_section.cfm?sec=279&langId=en.
- 181.
Established by the FAO, OIE, the World Bank, WHO and WTO, this cooperation assists developing countries with the development and application of SPS measures. See www.standardsfacility.org/.
- 182.
In a study of Asian trading partners, Ignacio found the EU and Member States to be the largest donor in value terms. LL Ignacio, ‘Overview of SPS-related assistance for Cambodia, Lao People’s Democratic Republic and Vietnam’ (2001–2006) www.aric.adb.org/pdf/a4t/Draft%20final%20-%20Overview%20of%20assistance%2001-06 %20_Ignacio_.pdf. Likewise, Brattinga found that 74 % of SPS-related projects in Kenya, Tanzania and Uganda were funded by the EU. P Brattinga, ‘Overview of SPS-related assistance for Kenya, Tanzania and Uganda (2001–2006)’ (September 2007) www.standardsfacility.org/Files/AidForTrade/Consultation_EA_P.Brattinga.pdf
- 183.
G/SPS/GEN/896 (29 January 2009).
- 184.
See G/SPS/N/EQV/DOM/1 (16 June 2008) 19 (in which the Dominican Republic reports the determination of the equivalence of US inspection systems as regards bovine products) and G/SPS/N/EQV/PAN/1 (9 August 2007) 9 (establishing Panama’s recognition of US sanitary and phytosanitary systems for meat, poultry and all other processed products).
- 185.
One isolated exception is Brazil’s belated reporting of a Memorandum of Understanding signed with Norway in 2003 establishing recognition of equivalence of fishery inspection and quality control. G/SPS/R/54 (28 April 2009).
- 186.
‘Equivalence Decision’ (n 113) para 12.
- 187.
WTO Members offer the explanation for the non-notification of bilateral arrangements that these are rarely formally presented in terms of ‘equivalence’. G/SPS/W/237 (8 May 2009) para 19.
- 188.
ibid.
- 189.
One example is provided by Australia’s response to FVO recommendations to submit a plan with regard to ‘individual cow’s milk check’. The Australians noted that New Zealand had established the equivalence of its systems-based approach and therefore also requested equivalence to be granted by the EU for its own practices. European Commission, ‘Table of Responses by the Competent Authority of Australia (AQUIS) to the Recommendation of Mission Report Ref. DG (SANCO) 2008-7897’, 2.
- 190.
‘Transparency Procedures’ (n 5) Annex E.
- 191.
However, the capacity of WTO Members to track down relevant information should not be overestimated. For example, in the 2009 EC Trade Policy Review, Brazil requested information from the EU on equivalency agreements that had been available online for many years. WT/TPR/M/214/Add.1 (n 92) 406.
- 192.
This was already the case during negotiations of the SPS Agreement. See MTN.GNG/NG5/WGSP/W/13 (19 March 1990) para 8 (in which the EU representative recommends that ‘equivalency should be applied as broadly as possible’).
- 193.
See n 148 and related text.
- 194.
Consider the EU’s Free Trade Agreement with Korea which creates a bilateral SPS Committee to provide a forum for discussion of problems arising from the application of certain sanitary or phytosanitary measures with a view to reaching mutually acceptable alternatives. In this connection, the Committee shall be convened as a matter of urgency, at the request of a Party, so as to carry out consultations. 2011/265/EU: Council Decision on the signing, on behalf of the European Union, and provisional application of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part [2011] OJ L127/1, Art 5.10(1)(e).
- 195.
European Commission, ‘White Paper on Food Safety’ (COM (1999) 719 final) para 113.
- 196.
As the European Commission’s then Deputy Director General of DG Sanco Paola Testori has put it, the EU has asked ‘the rest of the world to come up to our level. You cannot ask Europe to be more lenient.’ ‘EU “Just Controls Imports” Commission Told’ EU Food Law (24 July 2009).
- 197.
This is an estimate included in ‘EU NA & EP Reports’ (n 39) 2007, 9.
- 198.
European Commission, Food and Veterinary Office Annual Report 2008 (European Commission, 2008) 4.
- 199.
Notably, EU notifications in 2008 represented less than 4 % of all notifications made to the SPS Committee. In total, 1266 notifications were submitted in 2008. ‘EU NA & EP Reports’ (n 39) 2008, 1–2. The EU itself issued 13 comments in 2008 in response to the transparency initiatives of trading partners.
- 200.
For example, within the first 12 months of operation of the revised Transparency Procedures proposing the notification of proposals conforming to international standards, in excess of 180 regulatory proposals were submitted emanating from more than 30 countries. See SPS Information Management System (n 101).
- 201.
This reinforces the general practice encouraged by the SPS Committee for members to constantly reflect on the way in which they engage with trading partners. Within its relatively short existence, the SPS regime has already undergone its third operational review. See G/SPS/53 (3 May 2010). In addition, by including governance practices as a standing point on SPS Committee meeting agendas, WTO Members are compelled to reflect critically on their own experiences of managing the SPS system.
- 202.
See n 102.
- 203.
D Roberts, D Orden, and T Josling, Food Regulation and Trade: Toward a Safe and Open Global Food System (Washington, Peterson Institute for International Economics, 2004) 49.
- 204.
This important dynamic, generally drawing little attention in legal commentary, has been highlighted by Andrew Lang and Joanne Scott. A Lang and J Scott, ‘The Hidden World of WTO Governance’, 20 EJIL 575 (2009).
- 205.
Inevitably, the evidence for this informal process is largely anecdotal. One example may be instructive. Prior to the SPS Committee meetings, there is extensive exchange between authorities in certain countries in order to establish the need for side meetings outside the main Committee meeting and to ascertain which relevant experts should attend. These contacts are considered as, or even more, important than the formal discussions. Interview with European Commission’s DG Trade official in July 2009.
- 206.
Such skepticism is voiced, for example, in RH Steinberg, ‘The Hidden World of WTO Governance: A Reply to Andrew Lang and Joanne Scott’, 20 EJIL 1063 (2009) 1071.
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Downes, C. (2014). SPS Mechanisms for a Transnational Approach to Food Governance: Transparency and Equivalence. In: The Impact of WTO SPS Law on EU Food Regulations. Studies in European Economic Law and Regulation, vol 2. Springer, Cham. https://doi.org/10.1007/978-3-319-04373-9_6
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