RUSSIA – PIGS (EU)1 (DS475)

PARTIES AGREEMENT TIMELINE OF THE DISPUTE Establishment of Panel 22 July 2014 Complainant European Union SPS Arts. 1, 2.2, 2.3, 3.1, 3.2, 5.1, Circulation of Panel Report 19 August 2016 5.2, 5.3, 5.6, 5.7, 6.1, 6.2, 6.3 and 8 Circulation of AB Report 23 February 2017 Respondent Russian Federation Adoption 21 March 2017

1. MEASURE AND PRODUCT AT ISSUE

• Alleged import restrictions on live pigs and their genetic material, pork and certain other pig products from the European Union as a whole (EU-wide ban), as well from four EU member States: Estonia, Latvia, Lithuania and Poland (EU member State bans), based on concerns related to African swine fever (ASF).

2. SUMMARY OF KEY PANEL/AB FINDINGS2

• SPS Art. 3 (harmonization): The Panel found that the EU member State bans violated Art. 3.2 because they did not conform to the relevant OIE international standards. It found that the EU-wide ban and EU member State bans, except that in respect of Latvia, were inconsistent with Art. 3.1 because they were not based on the same standards.

• SPS Arts. 5.1, 5.2, 5.3 and 2.2 (risk assessment): The Panel found that (i) the measures were not provisional measures under Art. 5.7, (ii) they violated Arts. 5.1 and 5.2 because they were not based on a risk assessment within the meaning of the Agreement, and (iii) without such a risk assessment, Russia could not have taken into account “relevant economic factors” as required by Art. 5.3. It found that Russia failed to rebut the presumption of inconsistency with Art. 2.2 raised by the violation of Arts. 5.1, 5.2 and 5.3.

• SPS Art. 6 (adaptation to regional conditions): The Appellate Body upheld the Panel’s conclusion that the ban on imports from Latvia violated Art. 6.1 because it was not adapted to the SPS characteristics of areas in Russia, while modifying the Panel’s finding that the ban was not adapted to the SPS characteristics of areas in Latvia. The Panel also found the EU-wide ban and other member State bans violated Art. 6.1 because Russia (i) did not adapt them to the SPS characteristics of the areas of the products’ origin or to ASF-related characteristics in Russia, and (ii) did not perform a risk assessment to underpin its evaluation of the SPS characteristics of the products’ areas of origin. The Appellate Body reversed the Panel’s finding that the measures were not inconsistent with Art. 6.2, but was not in a position to complete the legal analysis. The Appellate Body upheld the Panel’s finding that (i) the European Union complied with Art. 6.3 by providing necessary evidence to objectively demonstrate that there were areas within the European Union territory outside Estonia, Latvia, Lithuania, and Poland, and areas within Estonia, Latvia, Lithuania, and Poland that were free of ASF and (except for Latvia) likely to remain so, and that (ii) Art. 6.3 does not require consideration of evidence relied upon by the importing Member (also see the findings on Art. 8 and Annex C(1) regarding unnecessary information requirements).

• SPS Arts. 5.6 and 2.3 (appropriate level of protection, prohibition on discrimination and disguised restriction on international trade): The Panel found the measures inconsistent with Art. 5.6 because there was a significantly less- restrictive alternative measure available to Russia that met its appropriate level of protection. The Panel also found them inconsistent with Art. 2.3 because they allowed domestic trade of the products at issue from ASF-free areas within Russia but not from the European Union, and did not recognize certain ASF-free areas, pursuant to the relevant international standard.

1 Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the European Union 2 Other issues addressed: attribution of the EU-wide ban to Russia; Russia’s terms of accession to the WTO; terms of reference (DSU Art 6.2); temporal framework for the Panel’s assessment; Art. 1 and Annex A(1) of the SPS Agreement; order of analysis (SPS Agreement); judicial economy; requests for simultaneous English-to-Russian and Russian-to-English interpretation; consultation with experts and the OIE; scope of the Interim Review and submission of new evidence (DSU Art. 15.2); extension of deadline for circulation of the Appellate Body Report (DSU Art. 17.5); and industry representatives in a Member’s delegation.

2021 EDITION 207