Decisions of the Appellate Body of the World Trade Organization Hormones: European Communities - Measures Affecting Meat and Meat Products Complete Text of this Survey (RTF Format) Full text of the WTO Appellate Body Report (PDF Format) * David R. Hurst* WTO Appellate Body Report: Hormones: European Communities - Measures Affecting Meat and Meat Products, AB-1997-4, WT/DS26/AB/R, WT/DS48/AB/R, Adopted by Dispute Settlement Body, February 13 1998, European Communities, United States and Canada, Appellant; European Communities, Canada and United States, Appellee; Australia, New Zealand and Norway, Third Participants; Feliciano, Ehlermann and Matsushita. I. Abstract In EC Measures Concerning Meat and Meat Products (Hormones), the Appellate Body determined that EC measures prohibiting the marketing or import of meat and meat products from animals treated with certain hormones were not "based on" a risk assessment under Article 5.1 of the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"), and therefore the measures were inconsistent with the SPS Agreement. The significance of the Hormones case extends well beyond the particular dispute because the case provided the Appellate Body with its first opportunity to consider the SPS Agreement. In adopting the SPS Agreement, WTO Members recognized that a discrimination-based test is a poor filter for distinguishing between legitimate SPS measures, and those implemented for protectionist purposes; and that even non-discriminatory measures have the clear potential to hamper international trade. The incorporation of this latter understanding into the text of the SPS Agreement marks a departure from the GATT's discrimination-based regime. The SPS Agreement seeks to root out not only those measures which discriminate, but also those which are arbitrary in the sense that they do not really serve to advance their purported purpose of protecting life and health. Under the SPS Agreement, a measure may be invalidated if it is not "based on" an objective standard -- either an international standard or a "risk assessment" -- even if the measure is not directly or indirectly discriminatory. While the Panel's interpretation of the SPS Agreement moved the Agreement far beyond the GATT's discrimination-based regime, the Appellate Body took a much more deferential approach in its interpretation of the SPS Agreement, and in the process gave back much -- if not all -- of the ground claimed by the Panel. In short, the Appellate Body found that in order to show that a SPS measure is "based on" an objective standard, only a "rational relationship" between the measure and standard need be established. Although it is not entirely clear, the Appellate Body's analysis suggests that this "rational relationship" standard is quite easily satisfied. Once the "based on" requirement is sufficiently weakened, the result of the analysis under the SPS Agreement essentially turns on the Agreement's weak anti-discrimination provision -- and as the Appellate Body's analysis clearly demonstrates, analysis under this provision degrades into an unprincipled inquiry into the intent of the Member imposing a measure. In its disposition of the case, the Appellate Body addressed several important issues of relevance to general international law. First, in the context of analyzing the meaning of the phrase "based on," the Appellate Body cited the interpretative principle of in dubio mitius for the proposition that given multiple possible interpretations, the meaning which is less onerous to the party assuming an obligation is preferred. Second, the Appellate Body found it unnecessary to determine whether the precautionary principle had risen to the status of a generally accepted principle of international law, because even if it had, the fact that the principle is given specific meaning in several articles of the SPS Agreement means that the principle would not override the explicit language of other articles. Third, the Appellate Body found that whether or not distinctions in levels of sanitary protection result in "discrimination or a disguised restriction on international trade" turns on the intent of the party imposing the measure. Thus, a party's good faith may immunize otherwise discriminatory measures. Finally, the Appellate Body's findings with respect to the selection and use of experts, standard of review, and terms of reference have significant implications for the role of panels in the dispute resolution process under the SPS Agreement, and indeed under any agreement governed by the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"). * provided by worldtradelaw.net * JD candidate, Harvard Law School.
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