## Facts

- The European Communities adopted measures banning (1) the use of certain hormones for growth promotion in livestock and (2) the import and sale of meat from animals treated with any of six specified hormones for growth promotion.
- The hormones at issue were oestradiol-17β, progesterone, testosterone, trenbolone acetate, zeranol, and melengestrol acetate (MGA).
- The United States and Canada challenged the measures in separate WTO disputes; panels were established with the same composition.
- The panels found the measures inconsistent with several provisions of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement), including Articles 3.1, 5.1, and 5.5, and also found related inconsistencies under GATT 1994.
- The European Communities, the United States, and Canada appealed; the Appellate Body report was adopted on February 13, 1998.

## Issues

1. Which party bears the burden of proof in SPS disputes, and when does it shift?
2. What standard of review applies under DSU Article 11, and what constitutes an “objective assessment of the facts” in evaluating scientific evidence?
3. Whether and how the precautionary principle affects interpretation and application of SPS obligations.
4. What qualifies as a “risk assessment” under SPS Articles 5.1 and 5.2, and what it means for a measure to be “based on” that assessment.
5. Whether the measures were “based on” relevant international standards under SPS Article 3.1, and if not, whether they could be justified under Article 3.3.
6. Whether distinctions in the European Communities’ levels of sanitary protection across comparable risks violated SPS Article 5.5 (and related non-discrimination disciplines).
7. Whether the measures violated SPS Article 2.2 and whether complainants established a violation of SPS Article 5.6.

## Decision

- The Appellate Body largely upheld the panel findings that the measures violated SPS Articles 5.1 and 5.5.
- The Appellate Body upheld that the measures were not “based on” international standards for purposes of SPS Article 3.1 and were not justified under Article 3.3 because the measures were not supported by a risk assessment meeting SPS Article 5 requirements.
- The Appellate Body found that inconsistency with Articles 5.1 and 5.5 necessarily entailed inconsistency with SPS Article 2.2 (scientific principles and sufficient scientific evidence), reversing the panel on that point.
- The Appellate Body reversed the panel’s finding of a violation of SPS Article 5.6, holding the complainants did not prove feasible, significantly less trade-restrictive alternatives that would achieve the European Communities’ chosen level of protection.
- Having found SPS violations, the Appellate Body treated further GATT 1994 analysis as unnecessary to resolve the dispute.

## Legal Principles

- The complaining party bears the burden of proving a WTO violation; once a prima facie case is established, the burden shifts to the responding party on that claim or defense.
- Under DSU Article 11, panels must make an objective assessment of the facts and evidence, including expert evidence, but are not to conduct de novo review or replace scientific experts with their own scientific judgment.
- A precautionary approach may be reflected in SPS provisions, but it does not override explicit SPS requirements, including the duties in Articles 5.1 and 5.2.
- A compliant SPS measure must be “based on” a risk assessment; this requires an objectively discernible rational relationship between the assessment and the measure.
- A risk assessment requires evaluation of risk (likelihood and magnitude under actual conditions of use), not merely identification of a hazard or general scientific concerns.
- A Member may rely on divergent or minority scientific views, but the supporting material must still qualify as a risk assessment sufficient to support the measure under SPS Article 5.1.
- SPS Article 3.1 allows measures to be “based on” international standards where there is a sufficiently close relationship; departures under Article 3.3 require scientific justification consistent with Article 5.
- SPS Article 5.5 is violated where (1) different levels of protection exist in comparable situations, (2) the differences are arbitrary or unjustifiable, and (3) the result is discrimination or a disguised restriction on trade.
- A measure inconsistent with SPS Article 5.1 or 5.5 will also be inconsistent with SPS Article 2.2’s requirements of scientific principles and sufficient scientific evidence.
- An SPS Article 5.6 claim requires proof of an alternative measure that is reasonably available, significantly less trade-restrictive, and achieves the respondent’s appropriate level of protection.

## Conclusion

The Appellate Body held that the European Communities’ hormone-meat ban was not supported by a risk assessment meeting SPS requirements and reflected arbitrary distinctions in levels of protection across comparable risks, rendering the measures inconsistent with SPS Articles 5.1, 5.5, and consequently 2.2; precaution could not displace these scientific-evidence and risk-assessment duties, and the complainants failed to prove a violation of SPS Article 5.6.


European Cmtys.—Measures Concerning Meat & Meat Prods. (Hormones), WT/DS26/AB/R, WT/DS48/AB/R (WTO App. Body Feb. 13, 1998)