WORLD TRADE  
ORGANIZATION  G/SPS/W/160 
18 October 2004 
 (04-4370) 
Committee on Sanitary and Phytosanitary Measures  Original:   Spanish 
   
UNDUE DELAYS 
 
Communication from Uruguay
 
 
 
 The following communication is being circulated at the request of the delegation of Uruguay. 
 
_______________ 
 
 
I. QUESTION AT ISSUE 
1. The Agreement on the Application of Sanita ry and Phytosanitary Measures (SPS Agreement) 
establishes that Members' sanitary and phytosanita ry measures, including decisions on the recognition 
of equivalence and on the recognition of regiona lization, specific entry conditions and control, 
inspection and approval procedures, must all be ba sed on an assessment of risk (Article 5) or on 
relevant international standards (Article 3).   
2. It is, however, common for potential importers , when faced with a request from an exporter 
for the entry of a particular product, to claim that the results of th e corresponding sanitary or 
phytosanitary risk assessment are unavailable (or have  not been updated) and that they are therefore 
not in a position to respond to such a request immediately. It is also often the case that no relevant international standard exists. Po tential importers therefore "take their time" conducting such risk 
assessments and, in the meantime, prohibit or restrict trade in the goods concerned.  
 3. The experience of many exporting Members ove r the nine years' implementation of the SPS 
Agreement is that the time taken by importe rs to respond is very often unduly long. 
 4. Moreover, two further difficulties often add to the problem of excessively long time-limits: 
 
(a)  The importer usually asks the exporter for specific information in order to carry out the risk 
assessment, or for specific evidence of his sanita ry or phytosanitary status, or for access in 
order to conduct inspections, checks or othe r procedures. Such requests are very often 
excessive and out of all propor tion to the objective pursued. 
 
(b) The administrative procedures for decision-ma king by the importer tend, in a number of 
cases, to lack transparency. 
 5. The above-mentioned difficulties (excessively long time-limits, exaggerated requests for 
information and non-transparent procedures) mean th at the exporter is in fact confronted with a 
situation of trade restriction or prohibition which is extremely detrimental to his economic interests 
and prevents him from planning and managing his production and export strategies in a predictable 
and certain manner.   
 
 G/SPS/W/160 
Page 2  
 
II. BACKGROUND 
6. The SPS Agreement does not lay down specifi c rules governing the above situation. For 
example, it fails to establish the time-limit with in which an importer should respond to a reasonable 
request for information.   
7. Article 5.7 and paragraph 1 of Annex C, co rresponding to Article 8, (see the Annex to this 
document) lay down some rules on time-limits, requ ests for information and transparency in relation 
to the respective subject-matter of each Article (provisional measures and control, inspection and 
approval procedures), although the scope of key term s, such as "reasonable period of time", "without 
undue delay", "promptly", "as soon as possible" and "information requirements are limited to what is 
necessary", is not defined in the Agreement.
1 
 
III. WHAT NEXT?  POSSIBLE WAYS FORWARD 
 
8. Given the lack of specificity in the SPS Agreement  with regard to these issues and the 
absence of relevant international standards, guidelines and recommendations, the only recourse 
currently available to affected exporting Members is the WTO dispute resolution procedure, as was 
the case in the aforementioned dispute.  9. Uruguay is of the opinion that, in order to r ectify this situation and conduce to predictability 
and legal certainty, it would be better if this problem were discussed and resolved by the WTO 
Committee on Sanitary and Phytosanitary Measures, rath er than being left to be settled by means of 
panel and/or Appellate Body reports. Uruguay th erefore urges Committee Members to discuss the 
situation to which an exporter is subjected when an importer restricts or prohibits trade, contending 
that the sanitary or phytosanitary conditions under which the entry of a particular product from that 
origin would be permitted have  yet to be decided upon. 
 
10. The Committee could develop certain general gui delines in this regard, in particular on time-
limits, requests for information and transparen cy. The Committee could then ask the relevant 
international organizations (World Organization for Animal Health (OIE), Interim Commission for 
Phytosanitary Measures (ICPM) and Codex Alimenta rius Commission (CAC)) to reflect such general 
guidelines in their work and to consider the possi bility of developing specific relevant standards, 
guidelines and recommendations. 
                                                     
 
1 In the dispute Japan - Measures Affecting Agricultural Products (WT/DS76), the Appellate Body 
established the following in 1999: 
"In our view, what constitutes a "reasonable period of  time" has to be established on a case-by-case 
basis and depends on the specific circumstances of each case, including the difficulty of obtaining the additional 
information necessary for the review and the characteristics of th e provisional SPS measure.  In the present case, 
the Panel found that collecting the necessary additional information would be relatively easy. Although the 
obligation "to review" the varietal testing requirement has only been in existence sin ce 1 January 1995, we agree 
with the Panel that Japan has not reviewed its varietal te sting requirement "within a reasonable period of time"."  G/SPS/W/160 
 Page 3 
 
 
ANNEX  
  
Article 5.7: 
 
11. "In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt 
sanitary or phytosanitary measures on the basis of ava ilable pertinent information, including that from 
the relevant international organiza tions as well as from sanitary or phytosanitary measures applied by 
other Members. In such circumstances, Members shall seek to obtain the additional information 
necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure 
accordingly within a reasonable period of time
." (Emphasis added) 
 
Paragraph 1 of Annex C "Control, In spection and Approval Procedures": 
 
12. "Members shall ensure, with respect to any procedure to check and ensure the fulfilment of 
sanitary or phytosanitary measures, that: 
 (a) such procedures are undertaken and completed without undue delay
 and in no less favourable 
manner for imported products than  for like domestic products; 
(b) the standard processing period of each procedure is published  or that the anticipated 
processing period is communicated to the applicant upon request; when receiving an 
application, the competent body promptly  examines the completen ess of the documentation 
and informs the applicant in a precise and complete manner of all deficiencies;  the competent body transmits as soon as possible
 the results of the procedure in a precise and complete 
manner to the applicant so that corrective acti on may be taken if necessary;  even when the 
application has deficiencies, the competent body proceeds as far as practicable with the 
procedure if the applicant so requests;  a nd that upon request, the applicant is informed  of the 
stage of the procedure, with any delay being explained ; 
(c) information requirements are limited to what is necessary  for appropriate control, inspection 
and approval procedures, including for appr oval of the use of additives or for the 
establishment of tolerances for contaminants  in food, beverages or feedstuffs;" 
(Emphasis added) 
_________