Australia and WTO dispute settlement

Monthly Bulletin
September-October 2003

In this issue


Recent Developments

European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290/1)

At the 2 October DSB meeting a single panel was established following requests by Australia and the U.S. to examine EC legislation covering the registration and protection of geographical indications ("GIs") on a range of foodstuffs and agricultural products including cheese, beer and processed meat.  Read the media release issued on 3 October by Deputy Prime Minister and Acting Minister for Trade, John Anderson.  Australia’s statement to the DSB is attached at Annex A. 

Third parties to date: China, Chinese Taipei, Colombia, Guatemala, India, Mexico, New Zealand and Turkey

Australia: Quarantine Regime for Imports (WT/DS287) 

Also at the 2 October DSB meeting, the European Communities requested a panel to examine Australia’s quarantine regime for imports.  Australia exercised its right to prevent establishment of a panel at the first DSB consideration of this request.  Australia’s statement to the DSB is attached at Annex A

Australia as a Complainant

European Communities: Export Subsidies on Sugar (WT/DS/265)

No new developments.  Discussions on panel composition are continuing.

United States: Continued Dumping and Subsidy Offset Act of 2000 (the "Byrd Amendment") (WT/DS217 and WT/DS234)

No new developments. 

European Communities: Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290/1)

See item in Recent Developments above.

Australia as a Respondent

Australia: Certain Measures Affecting the Importation of Fresh Fruit and Vegetables (WT/DS270)

No new developments.  Discussions on panel composition are continuing.

Australia: Certain Measures Affecting the Importation of Fresh Pineapple Fruit (WT/DS/271)

No new developments. 

Australia: Quarantine Regime for Imports (WT/DS287)

See item in Recent Developments above.

Disputes Involving Australia as a Third Party

EC:  Measures Affecting the Approval and Marketing of Biotech Products (WT/DS291, 292 and 293)

No new developments. 

Canada:  Measures Relating to Exports of Wheat (WT/DS276)

No new developments.  View Australia’s third party submission.

US:  Subsidies on Upland Cotton (WT/DS267)

A further meeting of the Panel with third parties was held on 8 October.  View Australia’s submissions to the Panel.

Mexico: Measures Affecting Telecommunications Services (WT/DS204)

No new developments.  Due to translation delays, the Panel now expects to complete its work in December 2003. 

European Communities (EC):  Measures Affecting Meat and Meat Products (Hormones) (WT/DS26)

No new developments.

United States: Section 110(5) Copyright Act ("Homestyle" exemption) (WT/DS160)

No new developments. 

United States: Tax Treatment for "Foreign Sales Corporations" (WT/DS108)

No new developments.  Media reports indicate that the U.S. is taking domestic action to bring the relevant measure into compliance with its WTO obligations.

Japan: Measures Affecting the Importation of Apples (WT/DS245)

Japan has appealed the Panel’s rulings in this case.  Australia has lodged its third party submission in this appeal.  Download the executive summary of Australia’s submission.

Meetings of the Dispute Settlement Body: September/October 2003

The Dispute Settlement Body (DSB) met on 2 October (General DSB meeting).  The next regular DSB meeting is scheduled for 7 November.

General DSB Meeting - 2 October

Brazil’s first request for a panel in European Communities –Customs Classification of Frozen Boneless Chicken Cuts was blocked by the European Communities.  The first request by the U.S. for establishment of a panel in Mexico –Definitive Anti-Dumping Measures on Beef and Rice was blocked by Mexico.  For more detail on the 2 October DSB meeting, visit the WTO website.

Annex A

Statements By Australia At The Dispute Settlement Body Meeting Of 2 October 2003

European Communities –Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs (WT/DS290)

For the second time in this dispute concerning the EC’s regime for the registration and protection of geographical indications for agricultural products and foodstuffs, Australia requests the establishment of a dispute settlement panel. 

Our position on the issues raised in the dispute remains as outlined in our request for establishment of a panel in document WT/DS290/18 and in our statement to the Dispute Settlement Body on 29 August 2003 at the time of our first panel request.  In summary, Australia believes that the EC regime is inconsistent with existing WTO rules prohibiting discriminatory treatment, does not give due protection to trademarks and is overly complex and prescriptive. 

Further, Australia rejects the allegation made by the EC at the DSB meeting of 29 August 2003 that Australia has not complied with all of the requirements of Article 6.2 of the DSU.  Australia’s request for the establishment of a panel is fully consistent with the requirements of that provision. 

I request that a panel be established to examine the claims made in document WTO/DS290/18.  Australia considers that a single panel should examine its complaint together with that of the United States, consistent with Article 9.1 of the DSU. 

Australia –Quarantine Regime for Imports –Request for the establishment of a panel by the European Communities (WT/DS287/7)

Australia is concerned but not surprised by the decision of the European Communities to request the establishment of a panel.  We are concerned because of the potential harm which the challenge poses for the carefully negotiated balance reflected in the SPS Agreement and the ability of many Members, not just Australia, to maintain quarantine systems which address their particular circumstances while meeting their international obligations.  The reason we are not surprised by the actions of the European Communities relates to the possible motivations for the challenge.

Let us firstly be clear what the challenge is not about.  To a very large extent, it is not about commercial considerations and securing greater market access for products from Member States of the European Communities. For a number of products referred to in the request, we have no record of Member States of the European Communities having previously expressed any interest in exporting to Australia.  From our perspective, the most likely reason there has been no previous expression of interest is because no significant commercial interest exists in relation to those products.

We would be concerned if the challenge forms part of a strategy to alter the central principles of the Sanitary and Phytosanitary Agreement or which would threaten to undermine the ability of all Members to design an appropriate quarantine system to protect animal or plant life or health.

The European Communities appear to be challenging Australia’s ‘positive list’approach to quarantine.  As in other areas, the European Communities seems to consider that the approach which it takes to quarantine is the only permitted model for a quarantine system.  This ignores the fact that the European Communities has a vastly different trading history and pest status to many countries, including Australia.  It also ignores the fact that the SPS Agreement was intended to establish a framework within which Members could design a quarantine system to meet their particular circumstances.  Many Members maintain systems which are similar to that of Australia and which may be affected by this dispute.  Australia does maintain a conservative approach to quarantine matters, but it is one which is entirely WTO consistent and reflects our rights and obligations under the SPS Agreement.

The European Communities appear to consider that the SPS Agreement requires all WTO Members to carry out risk assessments for all possible traded plant and animal products from all possible sources, regardless of the existence or expression of any commercial interest.  This is an onerous requirement for any government and one we do not believe is contained in the SPS Agreement.  Many Members, both developed and developing, would find it extremely difficult to apply the SPS Agreement in this way. 

Mr Chairman, due to the very broad, unspecific and open-ended nature of the challenge, we consider the request contained in document WT/DS287/7 insufficient to satisfy Article 6.2 of the Dispute Settlement Understanding.  We understand that it is for a Panel to rule on this issue, but wish to signal our concerns at this early stage.  We note that we expressed similar concerns about the European Communities’request for consultations in this matter during our discussions in May 2003.

Australia’s quarantine system is entirely WTO consistent, and we believe that this will ultimately be supported by a panel’s findings, should a panel be established.  We cannot agree to the establishment of a panel at this meeting.

Thank you.


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This publication is intended to provide a general update and the information within it should not be relied on as complete or definitive.

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