In our E-alert of 14 April 2010 we referred to press reports
which suggested that an interim WTO Panel Report had been released
to each of Australia and New Zealand to the effect that measures
affecting the importation of apples from New Zealand which had been
imposed by Australia were contrary to the WTO Agreement on the
Application of Sanitary and Phytosanitary Measures
("SPS Agreement") as having created
discrimination between members and were not scientifically
On 9 August 2010, the WTO released the Report of the Panel that
had examined the complaint by New Zealand. The conclusions and
recommendation of the Panel were to the effect that Australia's
measures regarding fire blight, European canker and ALCM as well as
the requirements identified by New Zealand as "general"
measures linked to all three pests at issue in the dispute were
inconsistent to Articles 5.1 and 5.2 of the SPS Agreement and by
implication were also inconsistent with Article 2.2 of the SPS
The Panel also found that the measures regarding fire blight,
European canker and ALCM were inconsistent to Article 5.6 of the
SPS Agreement although the general measures were not inconsistent
with Article 5.6 of the SPS Agreement.
On that basis, the Panel concluded that to the extent that
Australia's measures were inconsistent to the SPS Agreement,
they had nullified or impaired benefits accruing to New Zealand
under the WTO Agreements.
Accordingly, the Panel recommended that the Dispute Settlement
Body request Australia to bring the inconsistent measures into
conformity with Australia's obligations under the SPS
Agreement. As a result, Australia will be obliged to review its
quarantine measures which are imposed in relation to the
importation of apples. The ruling may also have a broader impact in
opening up other challenges to the legality of bans and
restrictions which, on quarantine grounds, Australia places on a
wide range of goods and which many other countries believe to be
anti-competitive rather than being justified on scientific
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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