The Appellate Body of the World Trade Organisation (WTO) has today delivered its report on the EU prohibition on the import of meat treated with hormones for growth promoting purposes. Subject to a more detailed analysis, the European Commission welcomes the outcome of this case.
The Appellate Body reversed two out of the three conclusions of the panel and modified a substantial number of its findings. Although the Appellate Body confirmed some of the panel's findings, in particular as regards the requirement to base the EU measure on a risk assessment, it has done so with a number of important qualifications.
It is recalled that the panel had found in its reports of 18 August 1997 that the EU import prohibition of beef treated with hormones violated three provisions of the Agreement on Sanitary and Phytosanitary measures (the SPS Agreement), namely because it was not based on a risk assessment, was inconsistent with the level of sanitary protection adopted with regard to different substances which posed the same health risk to humans, and because it was not based on existing international standards adopted by the Codex Alimentarius Commission which the panel had found to be mandatory.
The Appellate Body report conversely recognised that the governments of Members have a sovereign and autonomous right to establish a level of sanitary protection for their own consumers which is higher than the level resulting from international health standards, provided that they meet the requirement to base their sanitary measures on a risk assessment.
The Appellate Body also agreed with the EU that the assessment of the risk to human health is not a quantitative scientific analysis by empirical or experimental laboratory methods associated with the physical sciences, but must cover, in the words of the Appellate Body, "risks in human societies as they actually exist in the real world where people live, work and die." This is a victory for the European consumers whose legitimate health concerns are allowed to be taken into account.
As regards the objective of applying consistency in the levels of health protection, the Appellate Body found that the EU prohibition did not result in discrimination or a disguised restriction on international trade and reversed the panel's finding that the SPS Agreement could be used to compare man-made and naturally occurring risks to human health.
The Appellate Body maintained the finding that in this particular case the EU prohibition on the use of hormones in meat is not based on a risk assessment because the scientific studies do not focus specifically on residues in meat of hormone-treated cattle. However, the Appellate Body rejects the panel's finding that an assessment of the risk to human health has to come to "a monolithic conclusion which coincides with the prevailing scientific view representing the mainstream of scientific opinion" and agrees with the EU that "responsible and representative governments may act in good faith on the basis of a divergent scientific view coming from qualified and respected scientists."
The Appellate Body also deals with a large number of issues of general legal importance, including the precautionary principle, the burden of proof, standard of review of panels and other procedural issues. The Commission considers that with this report the Appellate Body has made a valuable contribution to the development of clearer rules for the conduct of dispute settlement, which should be pursued further at the upcoming reviews of the relevant WTO Agreements.
Overall, the Appellate Body report is an important contribution to clarifying the rights and obligations of Members under the SPS Agreement and is likely to increase the confidence of Members in the dispute settlement system of the WTO.