WT/DS475/AB/R  
 
23 February  2017 
(17-1107) Page: 1/59 
    
 
 RUSSIAN FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE PIGS , PORK AND 
OTHER PIG PRODUCTS F ROM THE EUROPEAN UNI ON 
AB-2016-5 
Report of the Appellate Body  WT/DS475/AB/R  
 
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 Table of Contents  
 
1  INTRODUCTION  ................................ ................................ ................................ .. 9 
2  ARGUMENTS OF THE PAR TICIPANTS  ................................ ................................ . 13 
3  ARGUMENTS OF THE THI RD PARTICIPANTS  ................................ ......................  13 
4  ISSUES RAISED IN THI S APPEAL  ................................ ................................ ...... 14 
5  ANALYSIS OF THE APPE LLATE BODY  ................................ ................................ . 14 
5.1  The measures at issue  ................................ ................................ .........................  14 
5.1.1  The EU -wide ban  ................................ ................................ ................................ . 14 
5.1.2  The country -specific import bans  ................................ ................................ ...........  15 
5.2  Russia's  claims relating to the attribution of the EU -wide ban  ................................ .... 16 
5.2.1  The Panel's findings  ................................ ................................ .............................  16 
5.2.2  Whether the Panel erred in attri buting the EU -wide ban to Russia  ..............................  18 
5.2.2.1   Conclusion on Russia's claim regarding the attribution of the EU -wide ban to 
Russia  ................................ ................................ ................................ ...............  20 
5.2.3  Whether the Panel erred in finding that Russia's terms of accession to the WTO 
did not limit the Panel's assessment of the European Union's claims regarding 
the EU -wide ban  ................................ ................................ ................................ . 21 
5.2.3.1  Conclusion on Russia's claim regarding Russia's terms of accession to the WTO  ...........  24 
5.3  Claims under Article  6 of the SPS  Agreement  ................................ ..........................  24 
5.3.1  Russia's claims under Article  6.3 of the SPS  Agreement  ................................ ............  26 
5.3.1.1   The Panel's findings  ................................ ................................ .............................  26 
5.3.1.2   Interpretati on of Article  6.3 of the SPS  Agreement  ................................ ...................  29 
5.3.1.3   Whether the Panel erred in not finding that Article 6.3 requires consideration of 
the evidence relied upon by the importing Member  ................................ ..................  33 
5.3.1.4   Whether the Panel erred in not finding that Article 6.3 contemplates a period of 
time for the importing Member to evaluate and verify the evidence provided by 
the exporting Member  ................................ ................................ .........................  36 
5.3.1.5   Conclusions on Russia's claims under Article  6.3 of the SPS  Agreement  .......................  39 
5.3.2  Russia's claim regarding the relationship betw een Article  6.1 and Article 6.3 of 
the SPS  Agreement  ................................ ................................ .............................  40 
5.3.2.1   The Panel's findings  ................................ ................................ .............................  40 
5.3.2.2   Whether the Panel erred in fin ding that Russia had failed to ensure adaptation 
of its ban on imports of the products at issue from Latvia to regional SPS 
characteristics  ................................ ................................ ................................ .... 42 
5.3.2.3   Conclusion on Russia's claim regarding t he relationship between Article  6.1 and 
Article  6.3 of the SPS Agreement  ................................ ................................ ..........  46 
5.3.3  The European Union's claim under Article  6.2 of the SPS  Agreement  ...........................  46 
5.3.3.1   The Panel's findings  ................................ ................................ .............................  47 
5.3.3.2   Interpretation of Article 6.2 of the SPS  Agreement  ................................ ...................  48 
5.3.3.3   Whether the Panel erred in finding that Russia recognizes the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence in 
respect of ASF  ................................ ................................ ................................ .... 51 
5.3.3.4   Conclusion on t he European Union's claim under Article 6.2 of the 
SPS Agreement  ................................ ................................ ................................ .. 56 WT/DS475/AB/R  
 
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 6  FINDINGS AND CONCLUS IONS  ................................ ................................ .........  57 
6.1  Claims relating to the a ttribution of the EU -wide ban  ................................ ................  57 
6.2  Claims relating to Article 6 of the SPS Agreement  ................................ ....................  57 
6.3  Recommendation  ................................ ................................ ................................  59 WT/DS475/AB/R  
 
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ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
2006 Memorandum  Memorandum dated 4 April 2006 between the European Community 
represented by DG  Health and Consumer Protection and the 
Presidency and the Russian Federation repr esented by the Federal 
Service for Veterinary and Phytosanitary Surveillance concerning 
principles of zoning and regionalisation in the veterinary field (Panel 
Exhibit EU -61) 
Accession Protocol  Protocol on the Accession of the Russian Federation, WT/MIN(1 1)/24 / 
WT/L/839, 17 December 2011  
ALOP Appropriate level of protection  
Article 6 Guidelines  Committee on Sanitary and Phytosanitary Measures, Guidelines to 
Further the Practical Implementation of Article 6 of the Agreement on 
the Application of Sanitary  and Phytosanitary Measures, adopted by 
the Committee at its meeting of 2 -3 April 2008, G/SPS/48  
ASF African swine fever  
Customs Union  Customs Union of Belarus, Kazakhstan, and Russia  
Customs Union Decision 
No. 317  Decision of the Customs Union Commissi on No. 317 of 18 June 2010 
on Common Veterinary (Veterinary and Health) Requirements in 
relation to Goods Subject to Veterinary Control (Inspection), as 
amended (Panel Exhibit RUS -25.b)  
DG SANCO  European Commission's Directorate General for Health and Co nsumer 
Protection  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of 
Disputes  
EU panel request  Request for the Establishment of a Panel by the European Union of 
27 June 2014, WT/DS475/2  
FSVPS  Russian Feder al Service for Veterinary and Phytosanitary Surveillance 
(Rosselkhoznadzor ) 
OIE World Organisation for Animal Health (formerly Office International 
des Epizooties)  
Panel Report  Panel Report, Russian Federation – Measures on the Importation of 
Live Pigs, Pork and Other Pig Products from the European Union , 
WT/DS475/R  
SPS Agreement  Agreement on the Application of Sanitary and Phytosanitary Measures  
Terrestrial Code  OIE Terrestrial Animal Health Code , available at: 
<http://www.oie.int/international -standar d-setting/terrestrial -
code/access -online/>  
Working Party Report  Report of the Working Party on the Accession of the Russian 
Federation to the World Trade Organization, WT/ACC/RUS/70 / 
WT/MIN(11)/2, 17 November 2011  
Working Procedures  Working Procedures f or Appellate Review, WT/AB/WP/6 , 16 August 
2010 
WTO World Trade Organization  
WTO Agreement  Marrakesh Agreement Establishing the World Trade Organization  
  WT/DS475/AB/R  
 
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PANEL EXHIBITS CITED  IN THIS REPORT  
Exhibit 
Number  Description  Short Title  
(if applicable)  
RUS-25 
a.(RU)  
b.(EN)  Decision of the Customs Union Commission No. 317 of 
18 June 2010 on Common Veterinary (Veterinary and 
Health) Requirements in relation to Goods Subject to 
Veterinary Control (Inspection) , as amended  Customs Union Decision 
No. 317 
RUS-28 
a.(RU)  
b.(EN)  Letter dated 25  January 2014 from FSVPS to its Heads of 
Territorial Departments, FS -EN-8/1023   
RUS-29 
a.(RU)  
b.(EN)  Letter dated 27  February 2014 from FSVPS to its Heads 
of Territorial Departments, FS-NV-8/2972   
RUS-37 
a.(RU)  
b.(EN)  Letter dated 11  September 2014 from FSVPS to its Heads 
of Territorial Departments, FS -NV-8/17431   
RUS-53 
a.(RU)  
b.(EN)  Letter dated 2 April 2014 from FSVPS to DG  SANCO, 
FS-EN-8/5095   
RUS-296 Data from OIE WAHIS Interface, as at 31 August 2015   
EU-14 
a.(RU)  
b.(EN) Letter dated 29  January 2014 from FSVPS to DG  SANCO, 
FS-SA-8/1277   
EU-15  
a.(RU)  
b.(EN)  Letter dated 14  February 2014 from Russia's Minis try of 
Agriculture to DG  SANCO, [NF]-12-26/1650   
EU-16 
a.(RU)  
b.(EN)  FSVPS website announcement dated 6 Feb ruary  2014, 
available at:  http://fsvps.ru/fsvps/news/8935.html (RU) 
and <http://fsvps.ru/fsvps/main.html?_language=en> 
(EN) FSVPS website 
announcement  
EU-17 
a.(RU)  
b.(EN)  List of returned consignments of pig products, annexed 
as Annex 2 to Letter dated 6 August  2014 from FSVPS to 
DG SANCO, FS -EN-7/14507 (Panel Exhibit EU -171) List of returned 
consignments  
EU-52 Veterinary certificate for piglets for fattening, being 
exported from the E uropean Union into the Russian 
Federation,  11 November 2006  Veterinary certif icate for 
EU exports to Russia  
EU-61 Memorandum dated 4 April 2006 between the European 
Community represented by DG  Health and Consumer 
Protection and the Presidency and the Russian Federation 
represented by the Federal Service for Veterinary and 
Phytosan itary Surveillance concerning principles of zoning 
and regionalisation in the veterinary field  2006 Memorandum  
EU-161 
a.(RU)  
b.(EN)  Letter dated 29  January 2014 from FSVPS to its He ads of 
Territorial Departments, FS-SA-7/1275   WT/DS475/AB/R  
 
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 Exhibit 
Number  Description  Short Title  
(if applicable)  
EU-168 
a.(RU)  
b.(EN)  Letter dated 2 April 2014 from FSVPS  to its Heads of 
Territorial Departments , FS-EN-8/5081   
EU-169 
a.(RU)  
b.(EN)  Letter dated 27  June 2014 from FSVPS to its He ads of 
Territorial Departments, FS-EN-8/11315   
EU-171 
a.(RU)  
b.(EN)  Letter dated 6 August 2014 from FSVPS to DG  SANCO, 
FS-EN-7/14507   
 
CASES CITED IN THIS REPORT  
Short Title  Full Case Title and Citation  
Argentina – Footwear 
(EC) Appellate Body Report, Argentina – Safeguard Measures on Imports of 
Footwear , WT/DS121/AB/R , adopted 12 January 2000, DSR 200 0:I, 
p. 515  
Australia – Apples  Appellate Body Report, Australia – Measures Affecting the Importation 
of Apples from New Zealand , WT/DS367/AB/R , adopted 17 December 
2010, DSR 2010:V, p. 2175  
Australia – Salmon  Appellate Body Report, Australia – Measures A ffecting Importation of 
Salmon , WT/DS18/AB/R , adopted 6 November 1998, DSR 1998:VIII, 
p. 3327  
Canada – Continued 
Suspension  Appellate Body Report, Canada – Continued Suspension of Obligations 
in the EC – Hormones Dispute , WT/DS321/AB/R , adopted 
14 Novembe r 2008, DSR 2008:XIV, p. 5373  
Canada – Periodicals  Appellate Body Report, Canada – Certain Measures Concerning 
Periodicals , WT/DS31/AB/R , adopted 30 July 1997, DSR 1997:I, 
p. 449 
EC – Approval and 
Marketing of Biotech 
Products  Panel Reports, European Com munities – Measures Affecting the 
Approval and Marketing of Biotech Products , WT/DS291/R , Add.1 to 
Add.9 and Corr.1 / WT/DS292/R , Add.1 to Add.9 and Corr.1 / 
WT/DS293/R , Add.1 to Add.9 and Corr.1, adopted 21 November 
2006, DSR 2006:III, p. 847  
EC – Asbest os Appellate Body Report, European Communities – Measures Affecting 
Asbestos and Asbestos -Containing Products , WT/DS135/AB/R , 
adopted 5 April 2001, DSR 2001:VII, p. 3243  
EC – Bananas III  Appellate Body Report, European Communities – Regime for the 
Importa tion, Sale and Distribution of Bananas , WT/DS27/AB/R , 
adopted 25 September 1997, DSR 1997:II, p. 591  
EC – Bananas III  
(Article  21.5 – 
Ecuador  II) /  
EC – Bananas III  
(Article  21.5 – US) Appellate Body Reports, European Communities – Regime for the 
Impor tation, Sale and Distribution of Bananas – Second Recourse to 
Article  21.5 of the DSU by Ecuador , WT/DS27/AB/RW2/ECU , adopted 
11 December 2008, and Corr.1 / European Communities – Regime for 
the Importation, Sale and Distribution of Bananas – Recourse to 
Article 21.5 of the DSU by the United States , WT/DS27/AB/RW/USA  
and Corr.1, adopted 22 December 2008, DSR 2008:XVIII, p.  7165 
EC – Export Subsidies on 
Sugar  Appellate Body Report, European Communities – Export Subsidies on 
Sugar , WT/DS265/AB/R , WT/DS266/AB /R, WT/DS283/AB/R , adopted 
19 May 2005, DSR 2005:XIII, p. 6365  WT/DS475/AB/R  
 
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 Short Title  Full Case Title and Citation  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat 
Products (Hormones) , WT/DS26/AB/R , WT/DS48/AB/R , adopted 
13 February 1998, DSR 1998:I, p. 135  
EC – Poultry  Appellate Body Report, European Communities – Measures Affecting 
the Importation of Certain Poultry Products , WT/DS69/AB/R , adopted 
23 July 1998, DSR 1998:V, p. 2031  
EC – Tube or Pipe Fittings  Appellate Body Report, European Communities – Anti-Dumping Duties 
on Mal leable Cast Iron Tube or Pipe Fittings from Brazil , 
WT/DS219/AB/R , adopted 18 August 2003, DSR 2003:VI, p. 2613  
EC and certain member 
States – Large Civil 
Aircraft  Appellate Body Report, European Communities and Certain Member 
States – Measures Affecting Trade in Large Civil Aircraft , 
WT/DS316/AB/R , adopted 1 June 2011, DSR 2011:I, p. 7  
India – Agricultural 
Products  Appellate Body Report, India – Measures Concerning the Importation 
of Certain Agricultural Products , WT/DS430/AB/R , adopted 
19 June 2015 
India – Agricultural 
Products  Panel Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R  and Add.1, adopted 19 June 2015, 
as modified by Appellate Body Report WT/DS430/AB/R  
Japan – Agricultural 
Products  II Appellat e Body Report, Japan – Measures Affecting Agricultural 
Products , WT/DS76/AB/R , adopted 19 March 1999, DSR 1999:I, 
p. 277 
Japan – Agricultural 
Products  II Panel Report, Japan – Measures Affecting Agricultural Products , 
WT/DS76/R , adopted 19 March 1999, as modified by Appellate Body 
Report WT/DS76/AB/R, DSR 1999:I, p. 315  
Japan – DRAMs (Korea)  Appellate Body Report, Japan – Countervailing Duties on Dynamic 
Random Access Memories from Korea , WT/DS336/AB/R  and Corr.1, 
adopted 17 December 2007, DSR 2007:VII, p . 2703  
US – Animals  Panel Report, United States – Measures Affecting the Importation of 
Animals, Meat and Other Animal Products from Argentina , 
WT/DS447/R  and Add.1, adopted 31 August 2015  
US – Continued 
Suspension  Appellate Body Report, United States – Continued Suspension of 
Obligations in the EC – Hormones Dispute , WT/DS320/AB/R , adopted 
14 November 2008, DSR 2008:X, p. 3507  
US – Corrosion -Resistant 
Steel Sunset Review  Appellate Body Report, United States – Sunset Review of Anti -
Dumping Duties on Cor rosion -Resistant Carbon Steel Flat Products 
from Japan , WT/DS244/AB/R , adopted 9 January 2004, DSR 2004:I, 
p. 3 
US – FSC Appellate Body Report, United States – Tax Treatment for "Foreign 
Sales Corporations" , WT/DS108/AB/R , adopted 20 March 2000, 
DSR 2000: III, p. 1619  
US – Gasoline  Appellate Body Report, United States – Standards for Reformulated 
and Conventional Gasoline , WT/DS2/AB/R , adopted 20 May 1996, 
DSR 1996:I, p. 3  
US – Lamb  Appellate Body Report, United States – Safeguard Measures on 
Imports of F resh, Chilled or Frozen Lamb Meat from New Zealand and 
Australia , WT/DS177/AB/R , WT/DS178/AB/R , adopted 16 May 2001, 
DSR 2001:IX, p. 4051  
US – Large Civil Aircraft 
(2nd complaint)  Appellate Body Report, United States – Measures Affecting Trade in 
Large Ci vil Aircraft (Second Complaint) , WT/DS353/AB/R , adopted 
23 March 2012, DSR 2012:I, p. 7  
US – Poultry (China)  Panel Report, United States – Certain Measures Affecting Imports of 
Poultry from China , WT/DS392/R , adopted 25 October 2010, 
DSR 2010:V, p. 1909  WT/DS475/AB/R  
 
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 Short Title  Full Case Title and Citation  
US – Section 211 
Appropriations Act  Appellate Body Report, United States – Section 211 Omnibus 
Appropriations Act of 1998 , WT/DS176/AB/R , adopted 1 February 
2002, DSR 2002:II, p. 589  
US – Shrimp  Appellate Body Report, United States – Import Prohibition of  Certain 
Shrimp and Shrimp Products , WT/DS58/AB/R , adopted 6 November 
1998, DSR 1998:VII, p. 2755  
 WT/DS475/AB/R  
 
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 WORLD TRADE ORGANIZATION  
APPELLATE BODY 
 
 
Russian Federation – Measures on the 
Importation of Live Pigs, Pork and Other 
Pig Products from the European Unio n 
 
Russian Federation, Appellant/Appellee  
European Union, Other Appellant/Appellee  
 
Australia, Third Participant  
Brazil, Third Participant  
China, Third Participant  
India, Third Participant  
Japan, Third Participant  
Korea, Third Participant  
Norway, Third Par ticipant  
Separate Customs Territory of Taiwan, 
 Penghu, Kinmen and Matsu, Third Participant  
South Africa, Third Participant  
United States, Third Participant  AB-2016-5 
 
Appellate Body Division:  
 
Servansing, Presiding Member  
Ramírez -Hernández, Member  
Van de n Bossche, Member  
 
 
 
1  INTRODUCTION  
1.1.  The Russian Federation (Russia) and the European Union each appeals certain issues of law 
and legal interpretations developed in the Panel Report, Russian Federation – Measures on the 
Importation of Live Pigs, Pork and Ot her Pig Products from the European Union1 (Panel Report).  
1.2.  In these proceedings, the European Union challenges "certain Russian measures adopting , 
maintaining or applying an import ban or import restrictions, which prevent the importation of the 
products a t issue from the EU into Russia."2 In particular, the European Union identified as the 
measures at issue before the Panel specific bans on imports from Estonia, Latvia, Lithuania, and 
Poland, as well as the refusal by Russia to accept imports of the produc ts at issue from the entire 
European Union , amounting to an EU -wide ban.3 The measures at issue in this dispute are set 
forth in more detail in section 7.3.5 and Table 2 of the Panel Report. The products at issue 
comprise live pigs and their genetic materi al, pork , and certain other pig products.4 The product 
coverage of the measures at issue is set forth in more detail in Table 1 in section 7.3.4 of the 
Panel Report.  
1.3.  In the Panel Report , circulated to Members of the World  Trade Organization (WTO) on 
19 August 2016, the Panel found that  Russia has acted inconsistently with its obligations under 
Articles 2.2, 3.1, 3.2, 5.1, 5.2, 5.3, 5.6, 6.1, and 8, and Annex es C(1)(a) and C(1)(c) to the 
Agreement on the Application of Sanitary and Phytosanitary Measures (S PS Agreement) and has 
thus nullified or impaired benefits accruing to  the European Union under that Agreement.5 
1.4.  Specifically, the Panel made the following findings that are relevant to this appeal : 
a. the European Union has demonstrated the existence of the a lleged EU -wide ban as a 
composite measure which reflects Russia's refusal to accept certain imports of the 
products at issue from the European Union. The basis for Russia's refusal is the 
requirement contained in the veterinary certificates negotiated with  the European Union. 
According to this general requirement, the whole of the European Union, except for 
                                               
1 WT/DS475/R , 19 August 2016.  
2 Request for the Establishment of a Panel by the European Union of 27 June 2014 , WT/DS475/2  
(EU panel request) , p. 1 . 
3 EU panel request, pp. 1 -2; European Union's first writt en submission to the Panel, paras. 86 -87; Panel 
Report, para. 2.9 and fn 33 thereto.  
4 EU panel request, p. 1; Panel Report, para. 2.10 and Table 1  at para. 7.144.  
5 Panel Report, paras. 8.8 -8.9. WT/DS475/AB/R  
 
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 Sardinia, has to be  free of African swine fever ( ASF) for three years in order for the 
products at issue to be imported into Russia. Following the ASF o utbreaks in Lithuania, 
the products from the European Union do not meet that requirement. Therefore, the 
actions by Russia to apply this general requirement to the current situation in the 
European Union result in an EU -wide ban of the products at issue at tributable to Russia. 
Hence, the EU -wide ban is a measure susceptible to challenge under the WTO dispute 
settlement mechanism6; 
b. there is no limitation in the Protocol o n the  Accession of the Russian Federation to the 
WTO7 (Accession Protocol)  to the Panel' s assessmen t of the merits of the 
European  Union's claims brought in respect of the EU -wide ban8; 
c. the import restrictions on the products at issue from Estonia and Latvia were within the 
Panel's terms of reference9; 
d. with respect to the European Union's cla ims regarding the EU -wide ban, pursuant to the 
SPS Agreement:  
i. Russia recognizes the concepts of pest - or disease -free areas and areas of low pest 
or disease prevalence in respect of ASF, and , therefore, the EU -wide ban is not 
inconsistent with Russia's obl igations under Article 6.2 of the SPS Agreement10; 
ii. in the period between 7 February 2014 and 11 September 2014, the European Union 
objectively demonstrated to Russia, pursuant to Article 6.3 of the SPS Agreement, 
that there were areas within the European Un ion, outside of Estonia, Latvia, 
Lithuania, and Poland, that were  free of ASF and were likely to remain so11; and 
iii. Russia did not adapt the EU -wide ban to the SPS characteristics related to ASF in the 
areas where the products subject to that measure originat ed, nor to the 
SPS characteristics related to ASF in Russia. Therefore, the EU -wide ban is 
inconsistent with Article 6.1  of the SPS Agreement12; and  
e. with respect to the European Union's claims regarding the bans on imports of the 
products at issue from Esto nia, Latvia, Lithuania, and Poland, pursuant to the 
SPS Agreement:  
i. Russia recognizes the concepts of pest - or disease -free areas and areas of low pest 
or disease prevalence in respect of ASF, and , therefore, the bans on imports of the 
products at issue fro m Estonia, Latvia, Lithuania, and Poland are not inconsistent 
with Russia's obligations under Article 6.2 of the SPS Agreement13; 
ii. at least as at 11 September 2014, the European Union had provided to Russia the 
necessary evidence to objectively demonstrate, pursuant to Article 6.3 of the 
SPS Agreement, that there were areas within Estonia, Lithuania, and Poland that 
were free of ASF and were likely to remain so14; 
iii. at least as at 11 September 2014, the European Union had failed to provide to 
Russia the necessar y evidence to objectively demonstrate, pursuant to Article 6.3 of 
the SPS  Agreement, that there were areas within Latvia that were free of ASF and 
were "likely to remain so "15; and 
                                               
6 Panel Report, para. 8.1.a.  
7 WT/MIN(11)/24 / WT/L/839, 17 December 2011 . 
8 Panel Report, para. 8.1.b.  
9 Panel Report, para. 8.1.c.  
10 Panel Report, para. 8.1.d.i ii. 
11 Panel Report, para. 8.1.d. iv. 
12 Panel Report, para. 8.1.d. v. 
13 Panel Report, para. 8.1.e.vi.  
14 Panel Report, para. 8.1.e.vii.  
15 Panel Report, para. 8.1.e.viii. (e mphasis original ) WT/DS475/AB/R  
 
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 iv. Russia did not adapt the bans on imports of the products at issue from Eston ia, 
Latvia, Lithuania, and Poland to the SPS characteristics related to ASF in the areas 
where the products subject to the bans on imports from these four EU member 
States originated , nor to the SPS characteristics related to ASF in Russia. 
Furthermore, Ru ssia did not perform a risk assessment on which it could base its 
evaluation of the relevant elements to determine the SPS characteristics of the areas 
from which the products at issue originate. Therefore, the bans on imports of the 
products at issue from  Estonia, Latvia, Lithuania, and Poland are inconsistent with 
Article 6.1  of the SPS Agreement .16 
1.5.  In addition, the Panel made a number of findings that have not been appealed. In particular, 
with respect to the EU -wide ban, the Panel concluded that: (i) the  EU-wide ban is an SPS measure 
within the meaning of Annex A(1) to the SPS Agreement17; (ii) the EU -wide ban  is not based on 
the World Organi sation for Animal Health ( OIE) Terrestrial Animal Health Code ( Terrestrial Code ) 
and is, therefore , inconsistent wit h Russia's obligation to base its SPS measures on international 
standards, pursuant to Article 3.1 of the SPS Agreement18; (iii) Russia's process of consideration  of 
the European Union's requests for recognition of ASF -free areas is inconsistent with Annex C(1)(a), 
Annex C(1)(c) , and Article 8 of the SPS Agreement19; (iv) the EU -wide ban does not fall within the 
scope of Article 5.7  of the SPS Agreement20; (v) Russia did not base the EU -wide ban on a risk 
assessment within the meaning of Annex A (4) to the SPS  Agreement, thus breaching Articles 5.1 
and 5.2  of the SPS Agreement21; (vi) Russia had not rebutted the presumption of inconsistency in 
respect of Article 2.2 of the SPS Agreement and, therefore, the EU -wide ban is inconsistent with 
Article  2.222; (vii) the EU-wide ban is inconsistent with Article 5.3 of the SPS  Agreement23; and 
(viii) the EU -wide ban is inconsistent  with Article s 5.6 and 2.2  of the SPS  Agreement.24 
1.6.  With re spect  to the bans on imports of the products at issue from Estonia, Latvia, Lithuania, 
and Poland, the Panel concluded that these bans are SPS measures within the meaning of 
Annex  A(1) to the SPS Agreement25; that these bans do not conform to the relevant international 
standards contained in the Terrestrial Code and are , therefore,  inconsistent  with Article 3.2 of the 
SPS Agreement26; and that these bans, as applicable to treated products, are not "based on" the 
relevant international standards, as articulated in Articles 15.1.14 to 15.1.16 of the 
Terrestrial  Code, and are therefore, to the exten t that they are applicable to treated products, 
inconsistent with Article 3.1 of the SPS  Agreement .27  
1.7.  With respect  to the bans on imports of the products at issue from Estonia, Lithuania, and 
Poland, the Panel concluded that, as applicable to non -treated p roducts, the bans are not "based 
on" the relevant international standards, as articulated in the relevant Articles of Chapter 15.1 of 
the Terrestrial  Code, and are , therefore, to the extent that they are applicable to non -treated 
products, inconsistent wit h Article 3.1 of the SPS Agreement .28 With respect to the ban on imports 
of the products at issue from Latvia, the Panel concluded that, as applicable to non -treated 
products,  the ban  is "based on" the relevant international standards, as articulated in the  relevant 
Articles of Chapter 15.1 of the Terrestrial Code , and is , therefore, to the extent that it is applicable 
to non -treated products, consistent with Article 3.1 of the SPS Agreement.29 
1.8.  Furthermore, w ith respect to the bans on imports of the products at issue from Estonia, 
Latvia, Lithuania, and Poland, the Panel concluded that: (i) Russia's process of consideration of the 
European  Union's requests for recognition of ASF -free areas is inconsistent with Annex C(1)(a), 
                                               
16 Panel Report, para. 8.1.e.ix.  
17 Panel Report, para. 8.1.d.i.  
18 Panel Report, para. 8.1.d.ii.  
19 Panel Report, para. 8.1.d.vi.  
20 Panel Report, para. 8.1.d.vii.  
21 Panel Report, para. 8.1.d.vii.  
22 Panel Report, para. 8.1.d.vii . 
23 Panel Report, para. 8.1.d.viii.  
24 Panel Report, para. 8.1.d.ix.  
25 Panel Report, para. 8.1.e.i.  
26 Panel Report, para. 8.1.e.ii.  
27 Panel Report, para. 8.1.e.iii.  
28 Panel Report, para. 8.1.e.iv.  
29 Panel Report, para. 8.1.e.v.  WT/DS475/AB/R  
 
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 Annex C(1)(c) , and Article 8 of the  SPS Agreement30; (ii) the bans on imports of the products at 
issue from the four affected EU member States do not fall within the scope of Article 5.7  of the 
SPS Agreement31; (iii) Russia did not base the bans on imports of the products at issue from the 
four affected EU member States on a risk assessment within the meaning of Annex  A(4) to the 
SPS Agreement, thus breaching Articles 5.1 and 5.2  of the SPS  Agreement32; (iv) Russia has not 
rebutted the presumption of inconsistency resulting from the Panel's fin ding under Article  2.2 of 
the SPS Agreement , and theref ore the bans on imports of the products at issue from the 
four affected EU  member States are also inconsistent with Article 2.233; (v) the bans on imports of 
the products at issue from the four affected  EU member States are inconsistent with Article 5.3 of 
the SPS Agreement34; and (vi) the country -specific  import bans , as applicable to treated products, 
are inconsistent with Article s 5.6 and 2.2 of the SPS  Agreement.35 
1.9.  Finally, with respect to the European  Union's claims  regarding both the EU -wide ban and the 
bans on imports of the products at issue from Estonia, Latvia, Lithuania, and Poland, the Panel 
found these measures to be inconsistent with Article  2.3, first sentence, of the SPS  Agreement 
because th ey arbitrarily and unjustifiably discriminate between Members where identical or similar 
conditions prevail, and also to be inconsistent with Article  2.3, second sentence, of the 
SPS Agreement because they are applied in a manner which constitutes a disgui sed restriction on 
international trade.36 
1.10.  On 23 September 2016 , Russia notified the Dispute Settlement Body (DSB), pursuant to 
Articles  16.4 and 17 of the Understanding on Rules and Procedures Governing the Settlement of 
Disputes ( DSU), of its intention to appeal certain issues of law covered in the Panel Report and 
certain legal interpretations developed by the Panel, and filed a Notice of Appeal37 and an 
appellant's submission pursuant to Rule  20 and Rule 21, respectively, of the Working Procedures 
for Appe llate Review38 (Working Procedures). On 28 September 2016 , the European  Union notified 
the DSB, pursuant to Articles  16.4 and 17 of the DSU, of its intention to appeal certain issues of 
law covered in the Panel Report and certain legal interpretations devel oped by the Panel , and filed 
a Notice of Other Appeal39 and an other appellant's submission pursuant to Rule 23 of the 
Working  Procedures . On 11 October 2016, the European Union and Russia each filed an 
appellee's  submission.40 On 14 October 2016, Australia,  Brazil, and the United States  each filed a 
third participant's submission.41 On the same day, China, India, Japan, Korea, Norway, and the 
Separate Customs Territory of Taiwan, Penghu, Kinmen and Matsu each  notified its intention to 
appear at the oral heari ng as a third participant.42 On 17 October 2016, South Africa notified its 
intention to appear at the oral hearing as a third participant.43 
1.11.  On 2 November 2016, the Appellate Body Division hearing this appeal received a letter from 
Russia requesting that the  Division allow simultaneous English -to-Russian interpretation at the oral 
hearing in th ese appellate proceeding s. Russia explained that government officials in charge of 
sanitary and phytosanitary  (SPS)  issues intending to participate in the oral hearing did not have 
sufficient English skills to follow a hearing  conducted in English . Russia stated that it would bear all 
costs associated with such simultaneous interpretation.  
1.12.  On 3 November 2016, the Division invited the European Union and the third particip ants to 
comment in writing on Russia's request by 5 p .m. on Monday , 7 November. The European Union 
submitted a response on 4 November and comments from Australia, Brazil, Japan, Norway, and 
the United States were received on 7  November 2016.  
                                               
30 Panel Report, para. 8.1.e.x . 
31 Panel Report, para. 8.1.e.xi.  
32 Panel Report, para. 8.1.e.xi.  
33 Panel Report, para. 8.1.e.xi.  
34 Panel Report, para. 8.1.e.xii.  
35 Panel Report, para s. 8.1.e.xiii  and 8.1.e.xiv . 
36 Panel Report, para. 8.1.f.i.  
37 WT/DS475/8.  
38 WT/AB/WP/6 , 16 August 2010.  
39 WT/DS475/9.  
40 Pursuant to  Rules 22 and 23(4) of the Working Procedures.  
41 Pursuant to Rule 24(1) of the Working Procedures.  
42 Pursuant to Rule 24(2) of the Working Procedures.  
43 Pursuant to Rule 24(4) of the Working Procedures.  WT/DS475/AB/R  
 
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 1.13.  The European U nion opposed Russia's request, submitting that it was not related to the 
efficient conduct of the hearing or the effective exercise by Russia of its rights under the DSU but , 
rather , reflected an attempt to promote Russian, de facto , as a language in WTO d ispute 
settlement.  
1.14.  In their respective comments, Japan, Norway, and the United States stated that they ha d 
no objection to Russia providing English -to-Russian interpretation , at its own expense, so that all 
Members of its delegation could follow the proce edings. Brazil considered that such a request 
should be granted only in exceptional circumstances , and took no position on whether such 
circumstances were present in this case. Australia opposed the request, considering it unnecessary 
in light of its expec tation that the issues on appeal would be of a legal, rather than factual, nature.  
1.15.  On 14 November 2016, the Division issued a Procedural Ruling. The Division noted that 
Russia's request related to simultaneous English -to-Russian interpretation at the oral  hearing . 
Russia did not request, and the Division did not address in its Ruling, Russian -to-English 
interpretation. The Division authorized Russia to use interpreters for the purpose of simultaneous 
interpretation from English to Russian at the oral heari ng and determined that, in the interest of 
orderly procedure in the conduct of this appeal, the interpretation facilities in the designated 
hearing room would be used by the Russian interpreters for simultaneous interpretation.44 
1.16.  By letter of 21 November 20 16, the Chair of the Appellate Body notified the Chair of the 
DSB that the Appellate Body would not be able to cir culate its Report within the 60 -day period 
pursuant to Article 17.5 of the DSU, or within the 90 -day period pursuant to the same provision.45 
The Chair of the Appellate Body explained that this was due to a number of factors,  including the 
substantial workload of the Appellate Body , scheduling difficulties arising from appellate 
proceedings running in parallel with an overlap in the composition o f the Divisions hearing the 
appeals , and the fact that the Appellate Body was at the time composed of five,  rather than the 
full complement of seven , Appellate Body Members.  On 16 December 2016, the Chair of the 
Appellate Body informed the Chair of the DSB  that the Appellate Body Report in these proceedings 
would be circulated no later than 23 February 2017.46 
1.17.  The oral hearing in this appeal was held on 24 November 2 016. The participants and 
third participants made oral statements and responded to questions posed by the Members of the 
Appellate Body Division hearing the appeal.  
2  ARGUMENTS OF THE PAR TICIPANTS  
2.1.  The claims and arguments of the participants are reflected in the executive summaries of 
their written submissions  provided to the Appellate Body.47 The No tices of Appeal and 
Other  Appeal, and the executive summaries of the participants' claims and arguments, are 
contained in Annexes A and B of the Addendum to this Report, WT/DS475/AB/R/Add.1.  
3  ARGUMENTS OF THE THI RD PARTICIPANTS  
3.1.  The arguments of the third pa rticipants that filed written submission s are reflected in the 
executive summaries of those submissions provided to the Appellate  Body48, and are contained in 
Annex  C of the Addendum to this Report, WT/DS475/AB/R/Add.1.  
                                               
44 The Procedural Ruling i s contained in Annex D -1 of the Addendum to this Report, 
WT/DS475/AB/R/Add.1.  
45 WT/DS475/ 10. 
46 WT/DS475/11.  
47 Pursuant to the Appellate  Body communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect o f Executive Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11 March 2015).  
48 Pursuant to the Appellate  Body communication on "Executive Summaries of Written Submissions in 
Appellate Proceedings" and "Guidelines in Respect of Executiv e Summaries of Written Submissions in 
Appellate  Proceedings" (WT/AB/23, 11 March 2015).  WT/DS475/AB/R  
 
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 4  ISSUES RAISED IN THI S APPEAL  
4.1.  The fol lowing issues are raised in this appeal:  
a. whether the Panel erred in finding that the EU -wide ban is attributable to Russia, and 
that Russia's terms of accession to the WTO d id not limit the Panel's assessment of the 
European Union's claims regarding the EU -wide ban (raised by Russia);  
b. whether the Panel erred in its interpretation of Article 6.3 of the SPS Agreement : 
i. by not finding that this provision requires consideration of  the evidence relied upon 
by the importing Member (raised by Russia);  and 
ii. by not fi nding that this provision contemplates a certain period of time for the 
importing Member to evaluate and verify the evidence provided by the exporting 
Member (raised by Russia);  
c. whether the Panel erred in its interpretation of the relationship b etween Arti cle 6.1 
and Article  6.3 of the SPS Agreement by finding a violation of Article 6.1 by the 
importing Member in a situation where the exporting Member has failed to comply with 
Article  6.3 (raised by Russia);  and 
d. whether the Panel erred in finding that Russi a recognizes the concepts of pest - or 
disease -free areas and areas of low pest or disease prevalence in respect of ASF, and 
that, therefore , the bans on the imports of the products at issue from Estonia, Latvia, 
Lithuania,  and Poland, as well as the EU -wide ban , are not inconsistent with Russia's 
obligation under the first sentence of Article 6.2 of the SPS Agreement (raised by the 
European  Union).  
5  ANALYSIS OF THE APPE LLATE BODY  
5.1  The measures at issue  
5.1.  Before turning  to the issues of law and legal interpretat ion raised in this appeal, we provide a 
brief overview of the measures at issue in this dispute , namely : (i) the "EU -wide ban", consisting 
of Russia's ban on the importation of the products at issue from the entire European  Union; and 
(ii) the country -specific import bans imposed by Russia on the products at issue from Estonia, 
Latvia, Lithuania, and Poland.49 The Panel found that the European  Union had properly identified 
these as the measures at issue in this dispute.50  
5.1.1   The EU -wide ban  
5.2.  In its panel request , the European  Union identified as one of the measures at issue the 
"refusal by Russia to accept imports of the products at issue from the entire EU, amounting to an 
EU-wide ban."51 The European Union characterized this measure both as an action (in the for m of 
an import ban or restriction) and, in the alternative, as an omission (in the form of a failure to 
accept imports from the European Union). The European Union also sought the review of this 
measure as such and as applied, de jure  and de facto, and ins ofar as it is written or unwritten.  
5.3.  The Panel examined various documents submitted by the European  Union to demonstrate the 
existence of the EU -wide ban. The documents consist of the following:  
a. A letter, dated 29 January  2014, from the Russian Federal Ser vice for Veterinary and 
Phytosanitary Surveillance ( Rosselkhoznadzor ) (FSVPS) to the European Commission's 
Directorate General for Health and Consumer Protection (DG SANCO).52 The Panel 
considered that this letter provided "a clear reference to the fact tha t, as a consequence 
                                               
49 Panel Report, para. 7.37.  
50 Panel Report, para. 7.170.  
51 Panel Report, para. 7.47 (quoting EU panel request, p. 2 ). 
52 Letter dated 29 January  2014 from FSVPS to DG SA NCO, FS -SA-8/1277 (Panel Exhibit EU-14.b). WT/DS475/AB/R  
 
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 of the detection of ASF in the European  Union's territory, … products accompanied with 
veterinary certificates attesting to the veterinary requirements provided in the bilateral 
certificates agreed by Russia and the European  Union in 20 06 would be returned upon 
arrival to Russia."53 
b. A letter, dated 29 J anuary 2014, from FSVPS to its h eads of territorial departments, 
recalling requirements in the bilateral veterinary certificates, which, the Panel noted, 
"are precisely related to the absen ce of ASF, for the last three years, in the entire 
territory of the European  Union".54 
c. A letter, dated 14 February 2014, from Russia's Ministry of Agriculture to DG SANCO, 
which states that the two detected cases of ASF in wild boar in Lithuania "considerab ly 
change s the epizootic status not only of Lithuania, but of the whole EU".55 In addition, 
the letter provides that , "in order to avoid a complete halt of trade in pork products with 
the EU, [ FSVPS ] agreed upon the imports of safe finished deep heated prod ucts."56 
d. An announcement on the FSVPS website, dated 6 February 2014, that border agents in 
Russia had banned consignments of pork products (frozen heads and hearts) of Austrian 
and German origin in the Tver and Pskov regions because of alleged ASF risks in  the 
entire territory of the European  Union.57 
e. A list of rejected consignments of pig products with reasons for rejection that was 
attached as Annex 2 to a letter, dated 6 August 2014, from FSVPS to DG SANCO.58 
According to the document, the products at issu e were not allowed entry into Russia due 
to the unreliability of information regarding the ASF status of the European  Union's 
territory in the accompanying veterinary certificates.59 
5.4.  On the basis of its review of the foregoing documents, the Panel concluded  that Russia's 
authorities had rejected consignments of the products at issue that failed to satisfy the 
requirement of EU -wide freedom from ASF for a period of three years (with the exception of 
Sardinia). The Panel added that "[t]hese actions taken toget her constitute a composite measure" 
comprising the "EU -wide ban" that the Panel assessed for its conformity with the relevant 
provisions of the SPS  Agreement.60 
5.1.2   The country -specific import bans  
5.5.  In its panel request, the European  Union also identified countr y-specific  bans on imports of 
certain non -treated pig products from Lithuania and Poland as measures at issue in this dispute. 
                                               
53 Panel Report, para. 7.63.  
54 Letter dated 29 January 2014 from FSVPS to its Heads of Territorial Departments, FS -SA-7/1275 
(Panel Exhibit EU -161.b) . See also  Panel Report, para. 7.64.  
55 Letter dated 14 February 2014 from Russia's Ministry of Agriculture to DG SANCO, [NF] -12-26/1650 
(Panel Exhibit EU -15.b). See also Panel Report, para. 7.67.  
56 Letter dated 14 February 2014 from Russia's Ministry of Agriculture to DG SANCO, [NF] -12-26/1650 
(Panel Exhibit EU -15.b). See also Panel Report, para. 7.68.  
57 FSVPS website announcement dated 6  February 2014, available at: 
<http://fsvps.ru/fsvps/main.html?_language=en> (FSVPS website announcement) (Panel Exhibit EU -16.b). 
See also Panel Report, para. 7.69; and European  Union' s first written submission to the Panel, para. 93 . 
58 List of returned consignments of pig products (Panel Exhibit EU -17.b), attached as Annex 2 to Letter 
dated 6 August 2014 from FSVPS to DG SANCO , FS-EN-7/14507 (Panel Exhibit EU -171.b) (List of returned 
consignments). See also Panel Report, para. 7.70.  
59 List of returned consignments (Panel Exhibit EU -17.b) . See also  Panel Report, para.  7.70. The Panel 
noted that Russia had admitted that it "imposed import restrictions with respect to the consignments of pork 
products accompanied by veterinary certificates dated later than 27 January 2014 – a few days after Lithuania 
experienced its first ASF outbreak." (Panel Report, para. 7.70 (quoting Russia's  response to Panel question 
No. 25, para. 10))  The Panel also  referred to "other supporting evidence" demonstrating the existence of the 
EU-wide ban. (Ibid., paras. 7.71 -7.73 (referring to, inter alia , Letter dated 29 January 2014 from FSVPS to its 
Heads of Territorial Departments, FS -SA-7/1275 (Panel Exhibit EU -161.b); and Letter dated 29  January 2014 
from FSVPS to DG SANCO, FS -SA-8/1277 (Panel Exhibit EU -14.b))) In particular, the Panel noted that "[t]he 
letter of FSVPS of 2 April 2014 to DG SANCO, recognizes the existence of the import restrictions of the 
products  at issue into Russia". (Ibid., para. 7.71 (referring to Letter date d 2 April 2014 from FSVPS to 
DG SANCO, FS -EN-8/5095 (Panel Exhibit RUS -53.b)))  
60 Panel Report, para. 7.83.  WT/DS475/AB/R  
 
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 With respect to Lithuania, the European  Union maintained that a ban on such imports was set out 
in a letter from FSVPS to its heads of territorial departments on 25 January 2014.61 With respect to 
Poland, FSVPS issued a similar letter on 27 February 2014.62 Following a letter dated 2  April 2014 
from FSVPS to its heads of territorial departments, these bans on imports from Lithuania an d 
Poland were extended to certain processed pork products.63 
5.6.  Subsequently, in its first written submission to the Panel, the European  Union referred to 
restrictions on imports from Latvia and Estonia that had been adopted through sepa rate letters 
from FSVPS  to its heads of t erritorial departments on 27 June 2014 and 11 September 2014, 
respectively.64 These measures were not identified in the European  Union's panel request. 
Although the parties agreed that these two sets of restrictions were within the Panel's  terms of 
reference, the Panel decided to consider this question on its own motion.65 The Panel found that 
the import restrictions on the products at issue from Estonia and Latvia were "closely related to 
the measures explicitly described in the European  Union's panel request"66, and were therefore 
within its terms of reference.67 
5.2  Russia's c laims relating to the attribution of the EU -wide ban  
5.7.  Russia appeals the Panel's finding that the EU -wide ban is a measure attributable to Russia. 
Russia also appeals the Pa nel's finding that there is no limitation, in Russia's terms of accession  to 
the WTO , on the Panel's assessment of the merits of the European Union's claims as they pertain 
to the EU -wide ban. These two claims on appeal address findings contained in sections 7.3.2 
and 7.3.3, respectively, of the Panel Report. Russia also requests, should we reverse the Panel's 
findings pertaining to the EU -wide ban as a measure, that we consequently also reverse all of the 
Panel's findings that the EU -wide ban is inconsiste nt with Articles  2.2, 2.3, 3.1, 5.1, 5.2, 5.3, 5.6, 
5.7, 6.1, 6.3, 8, and Annex C to the SPS  Agreement.68 
5.8.  We begin by summarizing  the Panel's findings before addressing Russia's claims on appeal.  
5.2.1   The Panel's findings  
5.9.  Before the Panel, the European  Union ide ntified as a distinct measure at issue the "refusal by 
Russia to accept imports of the products at issue from the entire EU, amounting to an EU -wide 
ban".69 The Panel explained that it would examine whether the EU -wide ban is susceptible to 
challenge under the Marrakesh Agreement Establishing the World Trade Organization 
(WTO  Agreement) by, first, identifying the "content and extent" of the alleged measure, and, 
second, by verifying whether it is "attributable" to Russia.70 
5.10.  With regard to the existence of the  measure, the Panel noted that the European  Union had 
submitted various letters and instructions from Russian authorities, including the following 
documents71: (i) a letter, dated 29 January 2014, from FSVPS to DG SANCO72; (ii) a letter, 
dated  29 January 201 4, from FSVPS to its h eads of territorial departments73; (iii) a letter, 
                                               
61 EU panel request, p. 1 (referring to Letter dated 25 January 2014 from FSVPS to  its Heads of 
Territorial Departments, FS -EN-8/1023 (Panel Exhibit RUS -28.b)).  
62 EU panel request, p. 2 (referring to Letter dated 27 February 2014 from FSVPS to its Heads of 
Territorial Departments, FS -NV-8/2972 (Panel Exhibit RUS -29.b)).  
63 EU panel reque st, p. 2 (referring to Letter dated 2 April 2014 from FSVPS to its Heads of Territorial 
Departments, FS -EN-8/5081 (Panel Exhibit EU -168.b)).  
64 Panel Report, para. 7.117 and fns 271 and 272 to para. 7.158 (referring to Letter dated 27 June 2014 
from FSVPS t o its Heads of Territorial Departments, FS -EN-8/11315 (Panel Exhibit EU -169.b); and Letter dated 
11 September 2014 from FSVPS to its Hea ds of Territorial Departments, FS-NV-8/17431 (Panel Exhibit 
RUS-37.b)).  
65 Panel Report, para. 7.119.  
66 Panel Report, par a. 7.160.  
67 Panel Report, para. 7.167.  
68 Russia's appellant's submission, para. 82.  
69 Panel Report, para. 7.47 (quoting EU panel request, p. 2).  
70 Panel Report, para. 7.57.  
71 Panel Report, para. 7.60.  
72 Letter dated 29 January 2014 from FSVPS to DG SANCO,  FS-SA-8/1277 (Panel Exhibit EU -14.b). 
73 Letter dated 29 January 2014 from FSVPS to its Heads of Territorial Departments, FS -SA-7/1275 
(Panel Exhibit EU -161.b). WT/DS475/AB/R  
 
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 dated  14 February 2014, from Russia's Ministry of Agriculture to DG SANCO74; (iv) an 
announcement by FSVPS, dated 6 February 2014, regarding a ban on the importation of pork 
products of  Austrian and German origin due to alleged ASF risks in the entire European  Union75; 
and (v)  instances of banned exports of pork products from EU  member States after 
25 January  2014.76 The Panel reviewed these documents and other evidence and concluded that 
the European  Union had established that the actions undertaken by Russia amounted to a ban on 
the importation of certain pig products from the entire European  Union.77 
5.11.  The Panel then examined whether the EU -wide ban is a measure attributable to Russia. The 
Panel started by recalling that  acts or omission s of the organ s of a State, including those of the 
executive branch, are usually attributable to the State.78 The Panel then noted that the evidence 
before it supported the proposition that Russia was undertak ing specific actions rendering it 
impossible for exporters in the European  Union to export the products at issue to Russia.79 
Specifically, the Panel found that these actions demonstrated  that imports of the products at issue 
from the European  Union were re fused by the territorial departments of FSVPS. Having observed 
that, pursuant to Russia's domestic legislation, FSVPS and its territorial departments are organs of  
the R ussian Government, the Panel concluded that FSVPS's actions, and those of the heads of its 
territorial departments, are attributable to Russia.80  
5.12.  The Panel recognized that, "as of 25 January 2014, the entire territory of the 
European  Union except for Sardinia is not free of ASF – thus not matching the exact wording in the 
bilaterally agreed veterinary certificates."81 However, in the Panel's view, "it is Russia, rather than 
the European  Union, that takes the action that gives effect to the import ban."82 In addition, the 
Panel observed that "the terms of the veterinary certificates are not what  is required by the 
European  Union for imports into its territory, but what is required by Russia for products to enter 
into its territory."83 The Panel further noted that Russia "more broadly regulates the importation of 
the products at issue"84 by requirin g not only the presentation of a veterinary certificate by the 
exporting country, but also compliance with a number of requirements under the control of the 
Russian authorities, including the issuance of an import permit by Russia. Finally, the Panel noted  
that, following an outbreak of ASF in Lithuania on 24 January 2014, the Russian authorities 
"actively enforce[d]"85 the requirement in the bilateral veterinary certificates that the entire 
European  Union, except for Sardinia, be ASF -free for three years fo r the products at issue to be 
imported into Russia. The Panel thus concluded that the European  Union had demonstrated the 
existence of the EU -wide ban as a "composite measure" consisting of Russia's refusal to accept 
imports of the products at issue from t he European  Union.86 
5.13.  The Panel then turned to examine Russia's argument that the validity of the bilateral 
veterinary certificates is a term of Russia's WTO membership , and that the recognition of these 
certificates in the terms of Russia's accession implie s the consistency of these certificates with 
Russia's obligations under the WTO agreements. The Panel considered that the question before it 
was "whether Russia can rely on its terms of accession to effectively shield the measure at issue 
from further scru tiny under the DSU and the SPS  Agreement."87  
                                               
74 Letter dated 14 February 2014 from Russia's Ministry of Agriculture to DG SANCO , [NF] -12-26/1650 
(Panel Exhibit EU -15.b).  
75 European  Union's first written submission to the Panel, para. 93; FSVPS website announcement 
(Panel Exhibit EU -16.b).  
76 List of returned consignments (Panel Exhibit EU -17.b); European  Union's first written submission to 
the Panel, paras. 94 -96. 
77 Panel Report, para. 7.74.  
78 Panel Report, para. 7.75 (referring to , inter alia , Appellate Body Report, US – Corrosion -Resistant 
Steel Sunset Review , para. 81).  
79 Panel Report, para. 7.77.  
80 Panel Report, para. 7.79.  
81 Panel Report, pa ra. 7.80.  
82 Panel Report, para. 7.80.  
83 Panel Report, para. 7.80.  
84 Panel Report, para. 7.81.  
85 Panel Report, para. 7.83.  
86 Panel Report, para. 7.84.  
87 Panel Report, para. 7.98.  WT/DS475/AB/R  
 
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 5.14.  The Panel noted the language of paragraph 893 of the Report of the Working Party on the 
Accession of the Russian Federation to the W TO88 (Working Party Report), according to which 
"[b]ilateral veterinary export c ertificates  initialled  by one of the CU [Customs  Union] Parties 
before  1 July 2010, as well as any subsequent amendments to such certificates  agreed with the 
authorised body of such CU Party, would remain valid for exports from the relevant country into 
the customs territory of the CU until an export certificate was agreed with a CU Party based on the 
agreed positions of the other CU  Parties."89 The Panel considered that this language "would seem 
to imply that Russia's commitment is to acknowledge the validi ty of the bilateral veterinary export 
certificates or their amendments for those imports from [WTO] Members into Russia."90 Referring 
to Appellate  Body jurisprudence regarding the use of waivers from WTO  obligations91, the Panel 
considered that, where a Memb er claims that a provision in its protocol of accession allows it to 
depart from other obligations enshrined in the WTO agreements, the text of such a provision 
should at least have clear and unambiguous language to that effect.92 The Panel observed that th e 
text of paragraph 893 of Russia's Working Party Report does not refer to Russia's substantive 
obligations under the SPS  Agreement, or provide that the application of the requirements 
contained in the bilateral veterinary certificates is automatically con sistent with Russia's rights and 
obligations under the SPS  Agreement.93 The Panel, therefore, was "not persuaded by Russia's 
argument that its terms of accession to the WTO render the direct or indirect application of the 
bilateral veterinary export certifi cates consistent with its obligations under the SPS  Agreement."94 
As a result, the Panel found no limitation, in Russia's terms of accession, to assessing the merits of 
the European  Union's claims brought in respect of the EU -wide ban.95  
5.2.2   Whether the Panel e rred in attributing the EU -wide ban to Russia  
5.15.  Russia appeals the Panel's finding that the EU -wide ban is a measure attributable to Russia. 
Russia claims, first, that the Panel erroneously attributed  the "content" of the bilateral veterinary 
certificates to  Russia.96 In referring to the "content" of the bilateral veterinary certificates, Russia 
focuses on the condition in those certificates that , in order for the relevant products to be certified 
for export to Russia, the entire European  Union (with the excep tion of Sardinia) must be free of 
ASF for a period of three years. According to Russia, while it is authorized by its domestic law to 
require veterinary certificates in order to import the products at issue, the specific condition of 
EU-wide freedom from A SF is not set out in Russia's SPS legislation. As Russia puts it, "the Panel 
overlooked the difference between the general requirement to provide some form of a valid 
veterinary certificate … with the specific requirements contained in the EU -Russia bilate rally 
negotiated veterinary certificates."97 Russia underscores that, "[w]hile the former is a national 
SPS measure attributable to the Russian Federation, the latter is not."98 Russia further asserts that 
the Panel failed to recognize the sequencing inheren t in the bilateral veterinary certificates, 
whereby the European Union must first issue a valid certificate before Russia may recognize the 
validity of the certificate and allow access to imports.99 
5.16.  The European  Union responds that Russia is seeking to misr epresent the Panel's findings by 
arguing that the Panel considered the bilateral veterinary certificates to constitute Russia's national 
SPS measures. According to the European  Union, the Panel never used such reasoning but, rather, 
examined several pieces  of evidence and concluded that the measure at issue consists of different 
actions by Russia that amount to the EU -wide ban.100 Moreover, the European  Union points out 
that the definition of an SPS measure broadly refers to "any" measure, and that any act or  
                                               
88 WT/ACC/RUS/70 / WT/MIN(11)/2, 17 November 2011.  
89 Panel Report, para. 7.103 (quoting Working Party Report, para. 893). (emphasis added by the Panel)  
90 Panel Report, para. 7.105.  
91 Panel Report, paras. 7.106 -7.107 (referring to Appellate  Body Reports, EC – Bananas  III, 
paras.  164-166 and 183; and EC – Bananas III (Article  21.5 – Ecuador  II) / EC – Bananas  III  
(Article  21.5 – US), para. 382).  
92 Panel Report, para. 7.108.  
93 Panel Report, para. 7.109. The Panel also considered that paragraph 1450 of the Working Party 
Report did not provide otherwise. (Ibid., para. 7.110)  
94 Panel Repor t, para. 7.111.  
95 Panel Report, para. 7.116.  
96 Russia's appellant's submission, para. 45 et seq.  
97 Russia's appellant's submission, para. 53.  
98 Russia's appellant's submission, para. 53.  
99 Russia's appellant's submission, para. 73 et seq.  
100 European  Union' s appellee's submission, para. 73 (referring to Panel Report, para. 7.74).  WT/DS475/AB/R  
 
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 omission may be a measure for the purposes of WTO dispute settlement.101 The European  Union 
further submits that Russia's alternative argument regarding sequencing also reflects a 
misrepresentation. In the European  Union's view, a proper explanation of sequ encing would take 
into account the fact that, as a first step, Russia failed to agree to the adaptation of the wording of 
the bilateral veterinary certificates in order to give effect to Russia's WTO obligations.102 
5.17.  In US – Corrosion -Resistant Steel Sunset R eview , the Appellate Body stated  that, "[i]n 
principle, any act or omission attributable to a WTO Member can be a measure of that Member for 
purposes of dispute settlement proceedings."103 With regard to the EU -wide ban, Russia's 
argumentation suggests that the "act" the Panel attributed to Russia consists of the condition of 
EU-wide freedom from ASF over a three -year period. We do not see that this is supported by the 
manner in which the European Union framed its challenge. The Panel noted that, in its panel  
request, the European  Union indicated that it was challenging the "refusal by Russia to accept 
imports of the products at issue from the entire EU, amounting to an EU -wide ban."104 The 
European  Union added that it was identifying "this specific measure at i ssue both as an action (an 
import ban or restriction) and, in the alternative, as an omission (failure to accept imports from 
the EU)" .105 Although the European  Union also referred, in its panel request, to evidence that 
contained references to the need for proper veterinary certificates in order to import the products 
at issue106, the European  Union's challenge with respect to the EU -wide ban is clearly directed at 
Russia's decision, either through action or omission, to deny the importation of the products at  
issue.  
5.18.  Moreover, we do not see that the Panel attributed the bilateral veterinary certificates, or the 
condition regarding EU -wide freedom from ASF, to Russia. In assessing whether the EU -wide ban 
could be attributed to Russia, the Panel focused principal ly on the fact that "it is Russia, rather 
than the European  Union, that takes the action that gives effect to the import ban."107 As the Panel 
observed, even if one considers the role of the bilateral veterinary certificates, they "are not what 
is required b y the European  Union for imports into its territory, but what is required by Russia for 
products to enter into its territory."108 The Panel further noted that the requirement concerning 
veterinary certificates forms part of a broader regulatory framework in Russia governing the 
importation of products.109 Although the Panel acknowledged that Russia's import ban "is grounded 
on the inability of the European  Union's veterinarians to certify [compliance with]  the requirement 
set out in the bilaterally agreed veter inary certificates", the Panel held that it was "Russia's 
authorities [that] actively enforce this requirement by rejecting consignments of the products at 
issue that fail to satisfy this requirement".110 Accordingly, the Panel concluded that "[t]hese 
action s taken together constitute a composite measure, and this is what the European  Union refers 
to as an 'EU -wide ban', and this is what constitutes a measure at issue attributable to Russia."111 
5.19.  In light of the manner in which the European  Union framed its clai ms before the Panel and 
the Panel's analysis and conclusions regarding those claims, we see no support for the assertion 
that the Panel attributed  the content of the bilateral veterinary certificates – in the form of the 
condition of EU -wide freedom from A SF over a three -year period – to Russia. Rather, the Panel 
clearly explained that the measure it was attributing to Russia was Russia's decision to deny the 
importation of the products at issue  – i.e. the EU -wide ban. Although Russia may have relied on 
the particular condition of EU -wide freedom from ASF set out in the certificates to ban imports of 
                                               
101 European  Union's appellee's submission, para. 74.  
102 European  Union's appellee's submission, para. 104. In the European  Union's view, the certificates 
could easily be adapted in ac cordance with Article  6.1 of the SPS  Agreement, as Russia did for imports of beef 
from the European  Union in 2011, and for imports of poultry from Canada in 2015. (Ibid., paras. 105 -107) 
103 Appellate Body Report, US – Corrosion -Resistant Steel Sunset Review , para. 81. (fn omitted)  
104 Panel Report, para. 2.9 (quoting EU panel request, p. 2).  
105 Panel Report, para. 2.9 (quoting EU panel request, p. 2).  
106 Panel Report, para. 2.9 (quoting EU panel request, pp. 1 -2). The European  Union notes that the 
Russian author ities stated that "veterinary doctors in the EU Member -States must stop certification of the 
above -mentioned products. Otherwise these products accompanied with these veterinary certificates issued 
after 27.01.2014, cannot be allowed into the territory of the Member States of the Customs Union and are 
subject to returns." (European Union's appellee's submission, para. 76 (quoting Letter dated 29 January 2014 
from FSVPS to DG SANCO, FS -SA-8/1277 (Panel Exhibit EU -14.b)) ) 
107 Panel Report, para. 7.80.  
108 Panel R eport, para. 7.80.  
109 Panel Report, paras. 7.81 -7.82.  
110 Panel Report, para. 7.83.  
111 Panel Report, para. 7.83.  WT/DS475/AB/R  
 
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 the products at issue, it was Russia's "actions" of "enforc[ing] this requirement by rejecting 
consignments of the products at issue" that the Panel considered to constitute "a measure at issue 
attributable to Russia".112 Russia does not dispute that it banned the importation of the products at 
issue, or that the European Union had provided a sufficient evidentiary basis to establish the 
existence of the ban. Accor dingly, we do not consider that Russia's arguments on appeal disturb 
the Panel's attribution of the EU -wide ban to Russia.  
5.20.  To the extent that Russia is suggesting that the import ban may not be attributed to Russia 
because the basis upon which it was impos ed is derived, in part, from a condition that is not set 
out in Russian law, Russia's claim cannot be sustained. We do not see on what grounds the act of 
a Member may not be attributed to that Member due to the fact that the basis for doing so is not 
conta ined in that Member's municipal law. As we have set out above, the decision to deny the 
importation of the products at issue is undeniably an act of the Russian Government. It is 
immaterial that the condition in the bilateral veterinary certificates upon w hich Russia's decision 
was based may have been developed in conjunction with, or may have involved prior action on the 
part of, the European Union. Moreover, to the extent that Russia maintains that the basis for the 
EU-wide ban is a relevant consideration  because it justifies its conduct under WTO law, this is, in 
our view, not relevant to whether the import ban itself is attributable to Russia. Indeed, the 
question of whether a measure is consistent with, or may be justified in respect of, a Member's 
WTO obligations may only be engaged once the attribution of that measure to the respondent has 
been established. Thus, we do not agree with Russia to the extent that it maintains that the fact 
that the basis for banning the importation of the products at issue  emanates from veterinary 
certificates jointly agreed to by Russia and the European Union somehow undermines the 
attribution of the EU -wide ban to Russia.  
5.21.  Moreover, we take note of Russia's "alternative" argument that the Panel failed to 
understand conform ity with the bilateral veterinary certificates as consisting of certain  sequential 
steps: first, the issuance of valid veterinary certificates by the European  Union; and, second, the 
recognition of the validity of such certificates by Russia. According to Russia, "there can be no 
legitimate finding of the Russian Federation's compliance, or lack thereof, with the valid bilateral 
veterinary certificates because that would represent a contingent second  step in the certification 
process that would occur  … only after the European  Union veterinary officials have issued a valid 
bilateral veterinary certificate."113 We have noted above that, even if one takes into account the 
condition in the bilateral veterinary certificates regarding EU -wide freedom from ASF, this does not 
undermine the conclusion that Russia decided on the basis of this condition to impose an import 
ban. The fact that the issuance of a certificate by the European  Union must precede Russia's 
recognition of the validity of that certificate does not a lter this conclusion. Irrespective of the 
events preceding Russia's conduct, the fact remains that Russia undertook actions to deny the 
importation of the products at issue, and it is these actions that the Panel found to comprise the 
measure attributable to Russia.  
5.2.2.1   Conclusion on Russia's claim regarding the attribution of the EU -wide ban to 
Russia  
5.22.  In sum, we consider that the measure that the Panel attributed to Russia was not the 
condition in the bilateral veterinary certificates of EU -wide fre edom from A SF over a 
three -year period but, rather, Russia's  decision to deny the importation of the products at issue, 
i.e. the EU -wide ban. Russia does not dispute that it banned the importation of the products at 
issue, and the fact that the basis for doing so may  not have been set out in Russian law does not 
alter the conclusion that the EU -wide ban is attributable to Russia.  
5.23.  For the foregoing reasons, we uphold  the Panel's finding , in paragraphs 7.84 and 8.1.a of 
the Panel Report, that the EU -wide ban is attribut able to Russia.  
                                               
112 Panel Report, para. 7.83. We note that, in referring to the EU -wide ban as a "composite measure", 
the Panel was referring to the "actions taken t ogether" by the Russian authorities of "rejecting consignments of 
the products at issue". We also note the Panel's statement that FSVPS and its territorial departments are 
organs of the Russian Government. (Ibid., para. 7.79)  
113 Russia's appellant's submiss ion, para. 81. (emphasis original)  WT/DS475/AB/R  
 
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 5.2.3   Whether the Panel erred in finding that Russia's terms of accession to the WTO  
did not limit the Panel's assessment of the European Union's claims regarding the 
EU-wide ban  
5.24.  Russia further claims that the "validity" of the bilateral veterina ry certificates must be given 
"full legal effect" by requiring a finding that Russia's actions taken to comply with the requirements 
of the certificates render them WTO -consistent.114 Russia's claim rests on two interrelated 
propositions. First, Russia submi ts that the commitment in its Working Party Report that the 
bilateral veterinary certificates "would remain valid" amounts to a commitment during Russia's 
accession process that the only certificates that can be used to import the products at issue are 
those agreed to by Russia and the European  Union. Second, Russia maintains that, in order to 
ensure the "full legal effect" of the bilateral veterinary certificates, Russia must, in acting in 
accordance with those  certificates, be found to have acted consiste ntly with its WTO obligations.  
5.25.  The European  Union responds that Russia's reading of its Working Party Report is contrary 
to Russia's terms of accession, which establish that the obligation to maintain the validity of the 
bilateral veterinary certificates is a commitment, not a right. In addition, the European  Union 
disagrees with Russia's attempt to portray the certificates as "frozen in time ".115 The 
European  Union recalls that paragraph  893 of the Working Party Report refers to "any subsequent 
amendments" to the bilateral certificates. According to the European  Union, such reference is 
logical from a regionalization perspective, because the obligation of adaptation under Article  6.1 of 
the SPS  Agreement is a continuing one.116 The European  Union argues that t he rationale for 
introducing the commitment regarding the validity of bilateral certificates was to allow, and not to 
restrict, trade with Russia, and notes that paragraph 892 of the Working Party Report contains a 
reference to regionalization and Article  6 of the SPS  Agreement as the concern of the 
WTO Members that sought a commitment from Russia regarding the validity of bilateral 
certificates.117 Thus, the European  Union submits that, contrary to Russia's position that its 
bilateral certificates are deemed  to be consistent with Russia's WTO obligations, a cumulative 
reading of paragraphs  892 and 893 of the Working Party Report reveals the concern of certain 
Members regarding Russia's compliance with the regionalization obligations in the 
SPS Agreement.118 
5.26.  As a preliminary matter, we note our understanding that this claim by Russia is distinct from 
its claim that the EU -wide ban was erroneously attributed to Russia. As we have remarked above, 
whether a measure can be attributed to a Member does not, in our view , engage the question of 
whether such measure is consistent with, or may be justified in respect of, that Member's 
WTO obligations. Such an understanding comports  with the manner in which the Panel structured  
its analysis of the issues, in which it first a ddressed the attribution question in section  7.3.2 of its 
Report, before turning to examine, in section 7.3.3 of its Report, whether Russia's accession 
commitments nevertheless shield the EU -wide ban from  further scrutiny under the 
SPS Agreement.119  
5.27.  We ther efore turn to assess whether the terms of Russia's accession commitments in its 
Working Party Report shield the EU -wide ban from further scrutiny under the SPS Agreement.  
5.28.  With regard to the manner in which the text of paragraph 893 of the Working Party Re port 
relates to Russia's overall undertakings in its Accession Protocol, we note that paragraph 2 of the 
Accession Protocol provides that the protocol, "which shall include the commitments referred to in 
paragraph 1450 of the Working Party Report, shall be  an integral part of the WTO  Agreement". 
Paragraph 1450, in turn, provides that the Working Party took note of the commitments by Russia 
as set out in several paragraphs of the Working Party Report, including paragraph 893. Thus, by 
virtue of these referen ces, the commitments by Russia that are set out in paragraph 893 of its 
                                               
114 Russia's appellant's submission, section II.D.  
115 European  Union's appellee's submission, para. 92.  
116 European  Union's appellee's submission, para. 93 (referring to Appellate  Body Report,  
India – Agricultural Products , para. 5.154).  
117 European  Union's appellee's submission, para. 95.  
118 European  Union's appellee's submission, para. 96.  
119 In its Notice of Appeal, Russia separately appeals discrete paragraphs in section 7.3.2 
(e.g. paras.  7.74 and 7.76-7.84) and section 7.3 .3 (e.g.  paras.  7.108 -7.112  and 7.114 -7.116) of the Panel 
Report. (Russia's Notice of Appeal, WT/DS475/8, para. 4)  WT/DS475/AB/R  
 
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 Working Party Report form an integral part of the Accession Protocol. In addition, as Russia 
acknowledges, these commitments apply in respect of all WTO Members.120 
5.29.  Russia relies princip ally on the language contained in paragraphs 892 and 893 of its 
Working Party Report, which provide as follows:  
892. Members expressed concern regarding a mandatory requirement to use a 
common CU [Customs Union] Veterinary Certificate. They noted that curr ently, some 
exporting countries had veterinary certificates that included requirements that differed 
significantly from those in the common form and the veterinary requirements of the 
Russian Federation. These differences reflected conditions in the export ing country or 
region, in line with Article  6 of the WTO SPS  Agreement and other international 
agreements. These Members sought confirmation that the Russian Federation and its 
CU partners would negotiate specific certificates with requirements that could differ 
from the CU Common Requirements and that export certificates currently in effect 
with the Russian Federation would remain valid until CU replacement had been 
agreed. Moreover, if there was no certificate governing trade in a regulated product, 
these  Members sought confirmation that an exporting country could negotiate a 
certificate with the CU Parties that included require ments that differed from the 
CU Common Requirements.  
893. The representative of the Russian Federation confirmed that the Russian  
Federation and its CU Parties would work with interested Members to negotiate 
veterinary certificates that included requirements that differed from the CU common 
form and specific CU Common Requirements, if an exporting country made a 
substantiated reques t prior to 1 January 2013 to negotiate such a veterinary export 
certificate. Bilateral veterinary export certificates initialled by one of the CU Parties 
before 1  July 2010, as well as any subsequent amendments to such certificates agreed 
with the authoris ed body of such CU Party, would remain valid for exports from the 
relevant country into the customs territory of the CU until an export certificate was 
agreed with a CU Party based on the agreed positions of the other CU Parties. Bilateral 
veterinary expor t certificates initialled by one of the CU Parties between 1 July 2010 
and 1 December 2010 would remain valid for import and circulation of relevant goods, 
only in the territory of the CU Party that initialled the certificate, until a bilateral 
veterinary certificate was agreed with a CU Party based on the agreed positions of the 
other CU Parties. These new certificates would include terms on matters dealt within 
an international treaty that were no less favourable than the corresponding terms on 
that matte r in such treaty that was concluded prior to 1 July 2010 between a Party 
and the relevant third country. While such bilateral veterinary export certificates could 
contain requirements that differed from the CU Common Form and specific provisions 
of the Com mon Requirements, such certificates had to ensure the appropriate level of 
protection as determined by the CU Parties. The Working Party took note of these 
commitments.121 
5.30.  It is noted, in paragraph 892, that WTO Members expressed the concern that there was a  
mandatory requirement to use a Customs Union122 common veterinary certificate, notwithstanding 
the fact that some exporting countries had negotiated bilateral veterinary certificates containing 
requirements that "currently … differed significantly" from tho se in the Customs Union common 
certificate. These differences "reflected conditions in the exporting country or region, in line with 
Article  6 of the WTO SPS  Agreement and other international agreements". These Members thus 
sought confirmation that Russia would negotiate certificates that differed from the Customs Union 
common certificate with respect to conditions in the exporting country as they relate to, inter alia, 
Article 6 of the SPS Agreement. In addition, paragraph  892 indicates that Members also s ought 
confirmation that any export certificates currently in effect with Russia "would remain valid", 
i.e. would remain in effect, until a replacement form for the Customs Union had been agreed. 
Thus, where a bilateral veterinary certificate had been negot iated with certain WTO Members, 
paragraph  892 would seem to indicate that these Members sought to avoid trade disruptions that 
might result from requiring reliance on the Customs Union common certificate in lieu of such a 
                                               
120 Russia's appellant's submission, para. 60.  
121 Fns omitted.  
122 The Customs Union of Belarus, Kazakhstan, and Russia.  WT/DS475/AB/R  
 
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 bilaterally negotiated certificate . We further note that, by virtue of the express reference in 
paragraph 892 to Article 6 of the SPS Agreement, it is clear that the particular differences between 
the two types of certificates related to concerns regarding regionalization.  
5.31.  Paragraph 893 t hen sets out the commitment undertaken by Russia, namely, that the 
relevant " [b]ilateral veterinary export certificates … as well as any subsequent amendments to 
such certificates … would remain valid … until an export certificate was agreed with a 
[Custom s Union] Party". Against the background of the concerns described in paragraph 892, this 
commitment reflects an undertaking regarding the status of bilate ral veterinary certificates 
vis-à-vis the Customs Union  common certificate. Using language identical t o that in 
paragraph  892, this commitment provides that the bilateral veterinary certificates "would remain 
valid", ensuring that bilateral veterinary certificates would continue to remain in effect until a 
Customs Union common certificate was agreed. In ad dition, by referring to "any subsequent 
amendments", paragraph  893 also evidences the understanding that existing bilateral veterinary 
certificates would be subject to modification. This is further supported by language in the bilateral 
veterinary certific ates between Russia and the European Union, which refers to the possibility of 
modifying " [a]dministrative territories, zones and time periods" on the basis of mutual agreement 
in accordance with certain principles of zoning and regionalization.123  
5.32.  Taking t he above considerations together, we understand Russia's commitment in 
paragraph 893 as an undertaking that addresses which  certificate would remain in effect, until 
amended or replaced, in trade relations between WTO Members and Russia. In other words, Ru ssia 
accepted that, where a bilateral veterinary certificate exists, it is this certificate, and not the 
Customs Union common certificate, that would be considered a valid certificate. Russia maintains 
that, by virtue of the terms "would remain valid" in p aragraph 893, the bilateral veterinary 
certificates must not only be "recognized as … legitimate veterinary certificate [s] for export"124, 
but that this also means that "the certificates are presumed to be WTO -consistent."125 As an initial 
matter, we draw a di stinction between, on the one hand, the bilateral veterinary certificates, which 
require, inter alia , certain factual attestations regarding the disease status in the exporting country 
and, on the other hand, the WTO -consistency of actions taken by the imp orting country. It is not 
at issue whether the bilateral veterinary certificates between the European Union and Russia are 
themselves WTO -consistent. Rather, the question is whether a particular SPS measure  – in this 
case, the EU -wide ban, which was adopte d on the basis of the ASF status in the European Union – 
is consistent with Russia's obligations under Article 6 of the SPS  Agreement.  
5.33.  We recall the Appellate Body's observation in India – Agricultural Products that the "main 
and overarching"126 obligation under Article  6 is to ensure that SPS measures are adapted to 
regional SPS characteristics, and that the nature of that obligation "is not static, but rather 
ongoing".127 Such an obligation, the Appellate Body added, requires  that SPS measures be 
adjusted ov er time so as to establish and maintain their continued suitability in respect of the 
SPS characteristics of the relevant areas . The fact that a WTO Member has adapted its measures 
to the SPS characteristics of an area at a specific point in time may not e nsure that such 
adaptation remains adequate when the particular SPS characteristics of that area evolve. 
Therefore, even if one were to maintain that the condition of EU -wide freedom from ASF may have 
been reflective of the SPS  situation at the time the bi lateral veterinary certificates were originally 
agreed, this does not rule out that the SPS characteristics of the relevant areas may have changed 
over time. Moreover, as we have suggested, the question of whether the condition of EU -wide 
                                               
123 A footnote in the relev ant bilateral veterinary certificates provides that "Administrative territories, 
zones and time periods may be modified with a mutual agreement on t he basis of the Memorandum of 
4 April 2006 on zoning and regionalisation". (Veterinary certificate for pigle ts for fattening, being exported 
from the E uropean Union  into the Russian Federation, 11 August 2006 (Veterinary Certificate for E U exports to 
Russia) (Panel Exhibit EU -52)) The 2006 Memorandum was agreed between the European Union and Russia 
and contains provisions aimed at applying the principles of zoning and regionalization to the international 
movement of animals and products of animal origin between EU member States and Russia. (See Panel Report, 
para. 7.371 (referring to e.g. Veteri nary c ertificate f or EU exports to Russia (Panel Exhibit EU -52); and 
Memorandum dated 4 April 2006 between the European Community represented by DG Health and Consumer 
Protection and the Presidency and the Russian Federation represented by the Federal Service for Veterinary  
and Phytosanitary Surveillance concerning principles of zoning and regionalisation in the veterinary field 
(2006 Memorandum) (Panel Exhibit EU -61)))  
124 Russia's appellant's submission, para. 66.  
125 Russia's appellant's submission, para. 67.  
126 Appellate Body  Report, India – Agricultural Products , para. 5.141.  
127 Appellate Body Report, India – Agricultural Products , para. 5.132.  WT/DS475/AB/R  
 
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 freedom from ASF accurately reflects the prevailing SPS situation at a particular point in time is 
distinct from the question of whether the SPS measure that was taken – in this case, a measure 
banning the importation of the products at issue – is consis tent with the provisions of the 
SPS Agreement, and in particular Article 6. Thus, irrespective of the commitment in Russia's terms 
of accession to the WTO  regarding which certificate would be operative in the conduct of certain 
trade to Russia from other WTO  Members, Russia remains under an ongoing obligation, pursuant 
to Article  6 of the SPS  Agreement, to adapt its measures to regional SPS  characteristics.  
5.34.  Russia maintains that, by finding that its compliance with the bilateral veterinary certificates 
is WTO -inconsistent, th e Panel is requiring Russia to act inconsistently with paragraph 893 of the 
Working Party Report by unilaterally invalidating the conditions of those certificates.128 We do not 
consider that the commitment set out in paragraph 893 can be understood as an obl igation holding 
Russia or any other WTO Member captive to the terms of the bilateral veterinary certificates, when 
acting in accordance with those terms would put that Member at variance with its WTO  rights or 
obligations. We also do not consider that Russ ia must, as it suggests, choose between violating the 
terms of its Working Party Report or other obligations in the WTO covered agreements. As the 
Appellate Body has explained, provisions of the WTO covered agreements must be read "in a way 
that gives mean ing to all of them, harmoniously".129 Accordin gly, while Russia and other 
WTO Members agreed that the bilateral veterinary certificates would continue to remain in effect 
until a Customs Union common certificate was agreed, this cannot be read to absolve the  Members 
involved from acting in good faith to make the necessary amendments to the certificates so as to 
ensure that SPS measures taken on the basis of such certificates a re in compliance with their 
WTO obligations. As noted above, paragraph 893 refers no t only to the bilateral veterinary 
certificates as they were agreed at the time of accession, but also to "any subsequent 
amendments".130 
5.2.3.1   Conclusion on Russia's claim regarding Russia's terms of accession to the WTO  
5.35.  In sum, given the ongoing nature of the ob ligation under Article  6 of the SPS Agreement  
and the requirement  that SPS measures be adjusted over time to en sure adaptation to regional 
SPS characteristics, the fact that a WTO Member has adapted its measures to the 
SPS characteristics of an area at a s pecific point in time may not ensure that such adaptation 
remains adequate when the particular SPS characteristics of that area evolve. Irrespective of the 
commitment in Russia's terms of accession to the WTO regarding which certificate would be 
operative in the conduct of certain trade to Russia from other WTO  Members, Russia remains 
under an ongoing obligation, pursuant to Article  6 of the SPS  Agreement, to adapt its measures to 
regional SPS  characteristics.  
5.36.  For the foregoing reasons, we uphold  the Panel 's finding, in paragraphs  7.116 and 8.1.b of 
the Panel Report, that Russia's terms of accession to the WTO d id not limit the Panel's assessment 
of the European Union's claims regarding the EU -wide ban . 
5.3  Claims under Article  6 of the SPS  Agreement  
5.37.  We now tur n to the participants' claims on appeal with respect to the Panel's analysis under  
Article  6 of the SPS  Agreement.  
5.38.  In its appeal, Russia requests us to reverse the Panel's conclusions contained in 
paragraphs  8.1.d.iv, 8.1.e.vii, and 8.1.e.ix of its Report131, namely:  
 in the period between 7 February 2014 and 11 September 2014, the European  Union 
objectively demonstrated to Russia, pursuant to Article  6.3 of the SPS  Agreement, that 
there are areas within the European  Union, outside of Estonia, Latvia, Lithuan ia, and 
Poland, which are free of ASF and are likely to remain so;  
                                               
128 Russia's appellant's submission, para. 67.  
129 Appellate Body Report, Argentina – Footwear (EC) , para. 81. (emphasis original; fn omit ted) 
130 As also noted, the bilateral veterinary certificates themselves refer to the possibility of modifying 
"[a]dministrative territories, zones and time periods" on the basis of mutual agreement in accordance with 
certain principles of zoning and regiona lization.  
131 Russia's response to questioning at the oral hearing.  WT/DS475/AB/R  
 
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  at least as at 11 September 2014, the European  Union had provided to Russia the 
necessary evidence to objectively demonstrate, pursuant to Article  6.3 of the 
SPS Agreement, that there are areas within Estonia, Lithuania, and Poland, that are free 
of ASF and are likely to remain so; and  
 Russia did not adapt the bans on the imports of the products at issue from Estonia, 
Latvia, Lithuania, and Poland to the SPS characteristics related to ASF of the areas 
where the products subject to the bans on the imports from these four EU member 
States originated nor to the SPS characteristics related to ASF in Russia. Furthermore, 
Russia did not perform a risk assessment on which it could base its evaluat ion of the 
relevant elements to determine the SPS characteristics of the areas from which the 
products at issue originate. Therefore, the bans on the imports of the products at issue 
from Estonia, Latvia, Lithuania, and Poland are inconsistent with Article  6.1 of the 
SPS Agreement . 
5.39.  In particular, Russia raises two claims of error with respect to the Panel's analysis under  
Article  6.3 of the SPS  Agreement and one claim of error with respect to the Panel's analysis under  
Article  6.1 of the SPS  Agreement.  
5.40.  First, Russia submits that the Panel erred in failing to find that Article  6.3 requires panels to 
take into account the scientific and technical evidence relied upon by an importing Member, as well 
as that Member's assessment of the evidence submitted by an e xporting Member, in accordance 
with the importing Member's appropriate level of sanitary or phytosanitary protection (ALOP).132 
Russia asserts that, as a result of its incorrect interpretation, the Panel erred in finding, in 
paragraphs 7.963 and 7.456 of its  Report, that the European  Union had provided Russia with the 
necessary evidence to objectively demonstrate that areas within Lithuania, Poland, Latvia,  and 
Estonia, and the European  Union as a whole, respectively, were ASF-free.133 Likewise, Russia 
maintain s that the Panel erred in finding, in paragraphs 7.1004 and 7.456 of its Report, that the 
European  Union had provided Russia with the necessary evidence to objectively demonstrate that 
the ASF -free areas within Lithuania, Poland, and Estonia, and the Europ ean Union as a whole, 
respectively,  were likely to remain  so.134  
5.41.  Second, Russia claims that the Panel erred in its interpretation of Article  6.3 by failing to 
find that this provision contemplates a certain time period for an importing Member to evaluate 
and verify the evidence provided by an exporting Member.135 Russia submits that, as a result of its 
improper interpretation, the Panel erred in finding, in paragraphs  7.963 and 7.1003 of its Report, 
that, as at 11 September 2014, the European  Union had provide d the necessary evidence to 
objectively demonstrate to Russia that parts of Estonia are, and are likely to remain, 
disease -free.136 
5.42.  Third, Russia asserts that the Panel erred in its interpretation of Article  6.1 by finding that 
an importing Member can be fou nd to have failed to adapt its measures to the SPS characteristics 
of areas within an exporting Member's territory even in the situation where the exporting Member 
has failed to provide the necessary evidence, pursuant to Article  6.3, in order to objective ly 
demonstrate that such areas are, and are likely to remain, pest - or disease -free or of low pest or 
disease prevalence.137 Russia maintains that, as a result of its interpretative error, the Panel 
improperly found, in paragraph 7.1028 of its Report, that the ban on imports of the products at 
issue from Latvia is inconsistent with Article  6.1, despite having found, in paragraph 7.995 of its 
                                               
132 Russia's appellant's submission, para. 93 (referring to Panel Report, paras. 7.384, 7.389, 
7.391 -7.396, 7.399, 7.404, 7.406, 7.412 -7.414, 7.416, 7.454, 7.930, 7.932, 7.933, 7.938, 7.940, 7 .969, 
7.976, 7.978, 7.985, 7.987, 7.996, 7.1003, and 7.1004).  
133 Russia's appellant's submission, para. 95.  
134 Russia's appellant's submission, para. 95.  
135 Russia's appellant's submission, para. 195 (referring to Panel Report, paras. 7.384, 7.393 -7.396, 
7.399, 7.404, 7.406, 7.412 -7.414, 7.416, 7.454, 7.930, 7.932, 7.933, 7.938 -7.940, 7.963, 7.969, 7.978, 
7.987, and 7.996).  
136 Russia's appellant's submission, para. 195.  
137 Russia's appellant's submission, para. 259 (referring to Panel Report, paras. 7.365, 7.101 1 (second 
sentence), 7.1020, 7.1027, and 7.1028).  WT/DS475/AB/R  
 
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 Report, that the European  Union had failed to show that the ASF -free areas within Latvia's territory 
were likely to rem ain so.138  
5.43.  In response, t he European Union requests us to uphold the Panel's conclusions contained in 
paragraphs  8.1.d.iv, 8.1.e.vii, and 8.1.e.ix of its Report.139 
5.44.  In its other appeal, the European Union requests us to reverse the Panel's conclusions, 
contai ned in paragraphs 8.1.d.iii and 8.1.e.iv of its Report, that Russia recognizes the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence in respect of ASF, and 
that, therefore, the EU -wide ban and the country -specific bans on the importation of the products 
at issue from the four affected EU member States are not inconsistent with Russia's obligation 
under the first sentence of Article  6.2 of the SPS  Agreement.140 Russia requests us to uphold these 
Panel conclusions.141  
5.3.1   Russia's c laims under Article  6.3 of the SPS  Agreement  
5.45.  We begin by assessing Russia's claims on appeal concerning the Panel's analysis under  
Article  6.3 of the SPS  Agreement. First, we provide an overview of the Panel's findings under 
Article  6.3, referring, where r elevant, to the Panel's broader assessment of the European  Union's 
claims under Article  6. Next, we examine the content of Article  6.3 in the context of the process of 
adaptation of measures to regional SPS characteristics pursuant to Article  6. We then pr oceed to 
evaluate the merits of Russia's claims, namely , that: (i) the Panel erred in its interpretation of 
Article  6.3 by failing to find that this provision requires panels to take into account the scientific 
and technical evidence relied upon by an impo rting Member142; and (ii) the Panel erred in its 
interpretation of Article  6.3 by failing to find that this provision contemplates a "reasonable period 
of time" for the importing Member to evaluate and verify the evidence submitted to it by the 
exporting Mem ber.143 
5.3.1.1   The Panel's findings  
5.46.  The Panel conducted its analysis under Article  6.3 of the SPS  Agreement as part of its 
assessment of the European  Union's claims under Article  6. In setting out the order of its analysis, 
the Panel stated that it would first exa mine "whether Russia recognizes the concept of disease -free 
areas within the meaning of Article  6.2".144 Next, the Panel would turn to examining "whether the 
European  Union provided the necessary evidence … in order to objectively demonstrate to Russia 
that within the European  Union there are areas that are, and are likely to remain, pest - or 
disease -free in accordance with Article  6.3".145 Finally, the Panel would consider "whether Russia 
complied with the obligation in Article  6.1 to ensure the adaptation of its measures to the 
SPS characteristics of the area from which the products originate and to which they are 
destined."146  
5.47.  The Panel began its analysis under Article  6.3 by setting out the legal test it would apply in 
order to assess whether the European  Union had provided the necessary evidence to objectively 
demonstrate to Russia that areas within the European  Union are, and are likely to remain, 
ASF-free. The Panel noted that Article  6.3 does not specify what type of evidence an exporting 
                                               
138 Russia's appellant's submission, para. 259 (referring to Panel Report, paras. 7.995 and  7.1028). 
Russia limits the scope of its claim to the Panel's findings with respect to the ban on imports of the prod ucts at 
issue from Latvia. However, should we reverse the Panel's findings under Article  6.3 – that the European  Union 
provided the necessary evidence to objectively demonstrate to Russia that areas within Estonia, Lithuania, and 
Poland, and the European  Union as a whole, are and are likely to remain ASF -free – Russia requests us also to 
reverse the Panel's findings that the EU -wide ban and the country -specific bans on imports of the products at 
issue from Estonia, Lithuania, and Poland are inconsistent wit h Article  6.1 of the SPS Agreement.  
139 European Union's appellee's submission, para. 256.  
140 European  Union's other appellant's submission, para. 50 (referring to Panel Report, paras. 7.373, 
7.379, and 7.485 with respect to the EU -wide ban, and to Panel Repo rt, paras. 7.925 and 7.1029 with respect 
to the country -specific bans on imports of the products at issue from the four affected EU member States).  
141 Russia's appellee's submission, para. 2.  
142 Russia's appellant's submission, para. 93.  
143 Russia's appellant 's submission, paras. 198 -199 and 201.  
144 Panel Report, para. 7.365. See also para. 7.923.  
145 Panel Report, para. 7.365. See also para. 7.923.  
146 Panel Report, para. 7.365. See also para. 7.923.  WT/DS475/AB/R  
 
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 Member must provi de in order to make the objective demonstration required under that 
provision.147 However, the Panel took the view that the factors listed in the second sentence of 
Article  6.1, as well as the second sentence of Article  6.2, inform what evidence  an exporting  
Member needs to provide in order to make an objective demonstration under Article  6.3. The Panel 
also considered the Guidelines to Further the Practical Implementation of Article 6 of the  
Agreement on the Application of Sanitary and Phytosanitary Measures148 (Article  6 Guidelines) to 
be informative in this respect.149 Thus, according to the Panel, an exporting Member seeking to 
objectively demonstrate to the importing Member that areas within its territory are pest - or 
disease -free or of low pest or disease pr evalence should submit evidence relating, where relevant, 
to: (i) geography; (ii) ecosystems; (iii) epidemiological surveill ance; (iv)  effectiveness of 
SPS controls; (v) level of prevalence of specific diseases or pests; (vi)  existence of eradication or 
control programmes; and (vii) information corresponding to appropriate criteria or guidelines 
developed by the relevant international organizations.150 The Panel cautioned that the amount of 
evidence in respect of each category has to be determined on a case -by-case basis, taking due 
account of the actual circumstances analysed by a panel.151 The Panel also explained that it is 
impossible for any Member to provide "laboratory -type scientific proof" that a particular disease is 
not present in a certain area.152 Rather, what an exporting Member must objectively demonstrate 
depends on the specific disease and on the situation in the particular area at issue.153 
5.48.  Applying this test to the circumstances of this dispute, the Panel took the view that the 
European  Union needed  to provide to Russia the necessary evidence in respect of: 
(i) epidemiological surveillance of ASF; (ii) the effectiveness of sanitary or phytosanitary controls 
in respect of ASF; (iii) regarding ecosystems, the presence of ASF in wildlife; and (iv) the l evel of 
prevalence of ASF.154 The Panel stated that, were it to find that "the European  Union [had] 
provided to Russia the necessary evidence in respect of the freedom of ASF in certain areas, and 
the likelihood of those areas remaining ASF -free, regardless of subsequent developments", the 
European  Union "would have succeeded in objectively demonstrating that at any given point in 
time the areas it claims to be ASF -free, are free of such disease and are likely to remain so."155 
5.49.  With respect to the "temporal fra mework" for its assessment156, the Panel considered it 
appropriate to examine the matter referred to it up to and including the date of adoption of 
Russia's latest measure at issue – namely, the ban on imports of the products at issue from 
Estonia, adopted o n 11 September 2014.157 Applying this temporal framework to its analysis  under 
Article  6.3, the Panel found it appropriate to examine the evidence provided by the 
European  Union to Russia up to  11 September 2014, as well as "any subsequent information on 
record", in order "to determine if and at which points in time the European  Union provided the 
necessary evidence".158  
5.50.  Using this framework, the Panel reviewed the information that the European  Union had 
provided to Russia in support of its request for recogni tion of the relevant areas as ASF -free. This 
information included: updates on the evolving ASF situation in the four affected EU member 
States159; communications sent by the European  Union to Russia in connection with consultations 
on the manner in which to address the situation160; and letters containing information requested 
by Russia so as to determine whether the European  Union had sufficiently substantiated its 
"regionalization" request.161 
                                               
147 Panel Report, para. 7.385.  
148 Adopted by the Committee on Sanit ary and Phytosanitary Measures at its meeting of 2 -3 April 2008, 
G/SPS/48.  
149 Panel Report, para. 7.388 (referring to Panel Report, US – Animals , para. 7.660).  
150 Panel Report, paras. 7.389 and 7.395. See also para. 7.930.  
151 Panel Report, para. 7.389.  
152 Panel Report, para. 7.400.  
153 Panel Report, para. 7.400.  
154 Panel Report, para. 7.404. See also para. 7.413.  
155 Panel Report, para. 7.414.  
156 Panel Report, section 7.3.6.  
157 Panel Report, para. 7.176.  
158 Panel Report, para. 7.417.  
159 Panel Report, para. 7.420.  
160 Panel Report, para. 7.421.  
161 Panel Report, para. 7.422.  WT/DS475/AB/R  
 
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 5.51.  Having examined this information, the Panel concluded that, in the p eriod up 
to 11 September 2014, the European  Union had "objectively demonstrated to Russia that there 
[were] areas within the European  Union territory, outside of Estonia, Latvia, Lithuania, and Poland, 
which [were] free of ASF and [were] likely to remain s o".162 The Panel also noted that the latest 
available information on the spread of ASF in the European  Union, submitted by the parties after 
11 September 2014, served to "confirm and support" this conclusion.163 
5.52.  Concerning the existence of ASF -free areas withi n Estonia, Latvia, Lithuania, and Poland, 
the Panel acknowledged "the difference in time in respect … of ASF outbreaks in the four affected 
EU member States", and thus undertook a "composite and progressive examination" of the bans 
on imports of the produc ts at issue from each affected EU member State.164 Having reviewed 
"common evidentiary elements"165, the Panel concluded that the European  Union had "provided to 
Russia the necessary evidence to objectively demonstrate that, at any given point in time, there 
were ASF -free areas within each of [those] States."166 The Panel, however, found it "more difficult" 
to determine whether the information provided by the European  Union was sufficient to objectively 
demonstrate that such areas were "likely to remain " ASF-free.167 In particular, the Panel observed 
that, while it would have to reach its conclusions based on the evidence that the European  Union 
had provided to Russia as at 11 September 2014, "neither party could have known", at that date, 
"what the situation would be almost one year later".168 Indeed, the Panel noted that the 
European  Union's complaint was "brought during the course of an active outbreak" of ASF "at a 
time when the situation continued to evolve rapidly", and that both parties had provided 
information regarding cases of ASF within the four affected EU member States occurring until late 
2015.169 For the Panel, "the provision of information in this context should be detailed and 
efficient", lest it prove "very difficult to consider that such evidence amount s to what is necessary" 
to make the objective demonstration required under Article  6.3.170 
5.53.  Having reviewed specific evidence in respect of Lithuania and Poland171, the Panel concluded 
that, based on information available as at 11 September 2014, the European  Union had provided 
to Russia the necessary evidence to objectively demonstrate that the ASF -free areas within those 
States' territories were likely to remain so.172 Similarly, with respect to Estonia, the Panel found 
that, as at 11 September 2014, the Europea n Union had provided to Russia the necessary 
evidence to objectively demonstrate that the ASF -free areas within that State's territory were 
likely to remain so.173 Given that the first ASF outbreak in Estonia occurred in September 2014, 
the Panel also consid ered that "the shorter time -frame for the consideration of the necessary 
evidence of the effectiveness of control measures necessitate[d] an examination of additional 
information provided by the European  Union after September 2014."174 The Panel found that s uch 
additional information "seem[ed] to demonstrate an effective control system that ha[d] prevented 
movement of infected boar into the ASF -free area and contained outbreaks in domestic pig 
holdings within infected zones, with few cases [having] affect[ed]  a small pig population". Thus, 
according to the Panel, this information "[did] not undermine"175 but, rather , "confirm[ed] and 
support[ed]"176 a conclusion that, as at 11 September 2014, the European  Union had provided to 
Russia the necessary evidence to obje ctively demonstrate that the ASF -free areas within Estonia 
were likely to remain so.  
5.54.  Finally, with respect to Latvia, the Panel found that, as at 11 September 2014, the 
European  Union had failed to submit to Russia the necessary evidence to objectively dem onstrate 
                                               
162 Panel Report, para. 7.456.  
163 Panel Report, para. 7.456. See also para. 7.455 (referring to Data from OIE WAHIS Interface, as at 
31 August 2015 (Panel Exhibit RUS -296), submitted by Russia with its comme nts on the European  Union's 
responses to Panel questions).  
164 Panel Report, para. 7.941.  
165 Panel Report, paras. 7.942 -7.962.  
166 Panel Report, para. 7.963.  
167 Panel Report, para. 7.964.  
168 Panel Report, para. 7.965.  
169 Panel Report, para. 7.965.  
170 Panel Report, para. 7.967.  
171 Panel Report, paras. 7.969 -7.976 and 7.978 -7.985, respectively.  
172 Panel Report, paras. 7.976 and 7.985, respectively.  
173 Panel Report, para. 7.1004.  
174 Panel Report, para. 7.998.  
175 Panel Report, para. 7.1003.  
176 Panel Report, para. 7.1004.  WT/DS475/AB/R  
 
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 that areas within that State's territory were likely to remain ASF -free. In particular, the Panel 
stated that, while the European  Union had provided to Russia "a fair amount of information in 
respect of the measures applied in Latvia, including sw iftly communicating the facts of the 
outbreaks to Russia", it had "failed to provide updated and additional information on Latvia's early 
detection, surveillance and eradication plans after the outbreaks", which "would have been 
necessary for Russia to eva luate the capacity and effectiveness of Latvia's ASF control plans".177 
5.55.  The Panel noted that all four affected EU member States had experienced further 
ASF outbreaks after September 2014, and stated that it would address such subsequent 
developments in the c ontext of its analysis under Article  6.1 of the SPS  Agreement.178 In the 
context of that analysis, the Panel explained that Article  6.1 sets forth an "ongoing … obligation to 
ensure adaptation" of measures, thus requiring an assessment of the SPS  characteris tics of the 
relevant areas in light of "the most updated information on record".179 Having assessed the parties' 
arguments and evidence concerning ASF outbreaks that occurred in th e four affected 
EU member  States between 11 September 2014 and 2 September 201 5, the Panel concluded that, 
in August  2015, there were areas within each of the four affected EU member States that 
"remained free of ASF" .180 
5.3.1.2   Interpretation of Article  6.3 of the SPS  Agreement  
5.56.  Article  6.3 of the SPS  Agreement is part of Article  6, entitled  "Adaptation to Regional 
Conditions, Including Pest - or Disease -Free Areas and Areas of Low Pest or Disease Prevalence". 
Article  6 of the SPS  Agreement provides:  
1. Members shall ensure that their sanitary or phytosanitary measures are adapted 
to the sanit ary or phytosanitary characteristics of the area – whether all of a country, 
part of a country, or all or parts of several countries – from which the product 
originated and to which the product is destined. In assessing the sanitary or 
phytosanitary charac teristics of a region, Members shall take into account,  inter alia , 
the level of prevalence of specific diseases or pests, the existence of eradication or 
control programmes, and appropriate criteria or guidelines which may be developed 
by the relevant int ernational organizations.  
2.  Members shall, in particular, recognize the concepts of pest - or disease -free 
areas and areas of low pest or disease prevalence. Determination of such areas shall 
be based on factors such as geography, ecosystems, epidemiologi cal surveillance, and 
the effectiveness of sanitary or phytosanitary controls.  
3.  Exporting Members claiming that areas within their territories are pest - or 
disease -free areas or areas of low pest or disease prevalence shall provide the 
necessary evidenc e thereof in order to objectively demonstrate to the importing 
Member that such areas are, and are likely to remain, pest - or disease -free areas or 
areas of low pest or disease prevalence, respectively. For this purpose, reasonable 
access shall be given, u pon request, to the importing Member for inspection, testing 
and other relevant procedures.  
5.57.  Article  6 addresses several aspects of the process of adaptation of Members' measures to 
regional SPS  characteristics. The Appellate Body has noted "the existence o f important common 
elements throughout Article 6", which "reveal the interlinkages that exist among the paragraphs of 
this provision".181 The "main and overarching obligation" is set forth in the first sentence of 
Article  6.1, according to which Members shal l ensure that their measures are "adapted"  to the 
SPS characteristics of the areas from which the products at issue originate and to which they are 
destined. The remainder of Article  6 "elaborates" on aspects of that obligation and sets forth "the 
                                               
177 Panel Report, para. 7.995. Among the necessary information that was missing, the Panel referred to 
the eradication plan for Latvia, which the European  Union provided to Russia only on 19 May 2015 – 
i.e. almost  11 months after the initial ASF outbreak. (See i bid., para. 7.992)  
178 Panel Report, paras. 7.977, 7.986, 7.994, and 7.1002.  
179 Panel Report, para. 7.1014.  
180 Panel Report, paras. 7.1015 -7.1018.  
181 Appellate  Body Report, India – Agricultural Products , para. 5.141.  WT/DS475/AB/R  
 
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 respecti ve duties that apply to importing and exporting Members in this connection".182 The 
regional "characteristics" that are relevant for the adaptation of an SPS measure are those relating 
to the specific risk that such a measure seeks to address. In the case of  a pest or disease, the 
specific risk consists of the "likelihood of entry, establishment or spread" of that pest or disease 
"within the territory of an importing Member" and "the associated potential biological and 
economic consequences".183 This risk is re levant to determining the level of protection deem ed 
appropriate by the Member  establishing an SPS measure to protect "human, animal or plant life or 
health within its territory".184 Therefore, as with any SPS measure, the regulating Member's 
adaptation of i ts measures to regional SPS  characteristics may be informed by that Member's 
ALOP.  
5.58.  Under the first sentence of Article  6.1, Members are required to ensure that their measures 
are adapted to regional SPS characteristics. The Appellate Body has noted that th is requirement "is 
an ongoing obligation that applies upon adoption of an SPS measure as well as thereafter".185 
Thus, Members are required to ensure adaptation both when adopting SPS measures and as they 
maintain them, and may be required to adjust such me asures over time as the SPS  characteristics 
of the relevant areas change.186 The Appellate Body has also highlighted that the obligation 
contained in the first sentence of Article  6.1 applies to both "the area from which the product 
originated and the area t o which the product is destined".187  
5.59.  The second sentence of Article  6.1 speaks to a Member's "assess[ment of] the sanitary or 
phytosanitary characteristics of a region", which must be conducted taking into account, 
"inter alia, the level of prevalence of sp ecific diseases or pests", the "existence of eradication or 
control programmes", and any "appropriate criteria or guidelines" developed by the relevant 
international organizations. We consider this sentence to indicate that a Member must evaluate all 
the e vidence relevant to "assessing" the SPS characteristics of an area. This assessment, in turn, 
provides the basis, and therefore constitutes a prerequisite, for the adaptation of that Member's 
measures to such SPS characteristics pursuant to the first sente nce of Article  6.1. We note that 
certain parallels exist between the assessment of the SPS characteristics of an area and the 
assessment of risks pursuant to Articles 5.1 through 5.3 of the SPS Agreement. In particular, 
Article 5.2 requires Members conduct ing a risk assessment to take into account, inter alia , the 
"prevalence of specific diseases or pests" and the "existence of pest - or disease -free areas". In 
light of these parallels, we consider that the assessment of the SPS  characteristics of an area 
within the meaning of the second sentence of Article 6.1 may be conducted as part of a Member's 
risk assessment pursuant to Articles  5.1 through 5.3.188  
5.60.  The main and overarching obligation to ensure adaptation of measures to regional 
SPS characteristics is fu rther informed by the second sentence of Article  6.2, which refers to a 
Member's "[d]etermination" of pest - or disease -free areas or areas of low pest or disease 
prevalence.189 Under this sentence, Members are required to base such a determination on factors  
such as "geography, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or 
phytosanitary controls". By its own terms, the second sentence of Article 6.2 applies only in the 
situation where the level of pest or disease prevalence in  a particular area is relevant. When such 
a situation arises, a Member must, as part of its assessment of the SPS characteristics of the 
                                               
182 Appellate  Body Report, India – Agricultura l Products , para. 5.141.  
183 Annex A(4) to the SPS Agreement.  
184 Annex A(5) to the SPS Agreement.  
185 Appellate  Body Report, India – Agricultural Products , para. 5.157. (emphasis original; fn omitted)  
186 Appellate  Body Report, India – Agricultural Products , para . 5.132.  
187 Appellate  Body Report, India – Agricultural Products , para. 5.132.  
188 See Panel Report, US – Animals , para. 7.644. In this respect, we note that, similar to the obligation 
under Article 6.1 to adapt measures to regional SPS characteristics, the r equirement under Article 5.1 that 
measures be based on a risk assessment does not apply solely at the time of adoption but, rather, throughout 
the maintenance of such measures. (See Panel Reports, Japan – Agricultural Products II , paras. 8.28 -8.31; and 
EC – Approval and Marketing of Biotech Products , para. 7.3031)  
189 Annex A(6) to the SPS Agreement defines a pest - or disease -free area as "[a]n area, whether all of a 
country, part of a country, or all or parts of several countries, as identified by the compet ent authorities, in 
which a specific pest or disease does not occur." In turn, Annex A(7) to the SPS Agreement defines an area of 
low pest or disease prevalence as "[a]n area, whether all of a country, part of a country, or all or parts of 
several countrie s, as identified by the competent authorities, in which a specific pest or disease occurs at low 
levels and which is subject to effective surveillance, control or eradication measures."  WT/DS475/AB/R  
 
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 relevant area, make a "determination" as to the pest or disease status of that area, based on 
factors such as those lis ted in the second sentence of Article 6.2.190 
5.61.  Article  6.3, for its part, addresses the situation where an exporting  Member claims that 
areas within its territory are pest - or disease -free or of low pest or disease prevalence. In this 
situation, the exporting  Member must, pursuant to the first sentence of Article  6.3, "provide the 
necessary evidence" in support of its claim "in order to objectively demonstrate to the importing 
Member" that the relevant areas "are, and are likely to remain, pest - or disease -free or of low pest 
or disease prevalence". The second sentence of Article  6.3 adds that the exporting Member shall 
give the importing Member reasonable access to the areas covered by its claim, in order for the 
importing Member to conduct "inspection, testin g and other relevant procedures". The duties set 
forth in Article 6.3 are aimed at facilitating the process of ad aptation of measures to the 
SPS characteristics of areas within an exporting Member's territory. That Member is usually best 
placed to gather a nd provide information about the level of pest or disease prevalence in areas 
located within its territory. In fact, without this cooperation by the exporting Member, it may prove 
difficult for an importing Member to determine the pest or disease status of  such areas and to 
adapt its measures to their SPS characteristics.191 
5.62.  When an exporting Member claims that a certain area within its territory is pest - or 
disease -free or of low pest or disease prevalence, the importing Member must evaluate all the 
evidence  relevant to making a determination as to the pest or disease status of that area. To this 
end, the importing Member will have to examine and verify the evidence provided by the exporting 
Member. Also, where relevant, the importing Member may analyse data gathered through on -site 
visits to the area concerned and rely upon any other information that it may have acquired  from 
other sources,  including from competent international organizations.192 As discussed in 
paragraphs  5.59 and 5.60 above , an importing Member's "determination" of the pest or disease 
status of a given area is addressed by the second sentence of Article  6.2, and forms part of that 
Member's "assess[ment]" of the SPS characteristics of that area within the meaning of the second 
sentence of Article  6.1. By contrast, the importing Member's evaluation of the relevant evidence is 
not covered by Article  6.3, which addresses the "duties that apply to … exporting  Members".193 
5.63.  We now focus more closely  on the terms of the first sentence of Article  6.3. In particular, we 
ascertain what an exporting Member has to do in order to provide the "necessary evidence … to 
objectively demonstrate to the importing Member" that are as within the exporting Member's 
territory "are, and are likely to remain, pest - or disease -free areas or areas of low pest or disease 
prevalence". We note that the term "evidence" has been defined as "[s]omething (including 
testimony, documents and tangib le objects) that tends to prove or disprove the existence of an 
alleged fact".194 We further observe that the evidence provided by the exporting Member under the 
first sentence of Article 6.3 is aimed at demonstrating the pest or disease status of a particul ar 
area within that Member's territory. This indicates that an exporting Member is expected to 
provide particularized evidence with respect to the pest or disease and the area concerned, and 
cannot merely adduce generic information or unsubstantiated asser tions. Depending on the 
circumstances of the case, this evidence may encompass laboratory -type scientific information 
(e.g. the pathogenicity of a given disease) and/or technical information about the situation on the 
ground (e.g. the effectiveness of SPS controls in place in the area covered by the exporting 
Member's claim). We further consider that the non -exhaustive list of factors enumerated in the 
second sentence of Article 6.2 – including geography, ecosystems, epidemiological surveillance, 
and the ef fectiveness of SPS controls – may shed light on the type of evidence that an exporting 
Member is expected to provide under Article  6.3.195  
5.64.  Turning to the meaning of the term "necessary", we consider that this term is not to be read 
in isolation from the rem ainder of the first sentence of Article 6.3. In particular, the "necessary" 
nature of the evidence to be provided by the exporting Member relates to that Member's "objective 
                                               
190 We examine the obligations set forth in Article  6.2, and especially the requirement to "recognize the 
concepts of pest - or disease -free areas and areas of low pest or disease prevalence" in the first sentence 
thereof , in section 5.3.3 of this Report . 
191 See e.g. Panel Report, US – Animals , para. 7.664.  
192 This reading compor ts with Article  5.3.7(d) of the Terrestrial Code, which requires an importing 
Member to "determine … whether it accepts an area as a zone for the importation of animal products".  
193 Appellate Body Report, India – Agricultural Products , para. 5.141. (emphasi s added)  
194 Black's Law Dictionary , 7th edn, B.A. Garner (ed.) (West Group, 1999), p. 578.  
195 See Panel Report, US – Animals , para. 7.660.  WT/DS475/AB/R  
 
- 32 - 
 
 demonstration" with respect to the pest or disease status of an area within its te rritory. This 
objective demonstration is to be made "to the importing Member", whose authorities must 
evaluate the evidence provided by the exporting Member in respect of the relevant area. 
Accordingly, we consider that the term "necessary" qualifies the n ature, quantity, and quality of 
the evidence to be provided by the exporting Member, which must be sufficient to enable the 
importing Member ultimately to make an objective "determination" as to the pest or disease status 
of the area concerned, within the meaning of the second sentence of Article  6.2. As we have 
explained in paragraph 5.59 above, this  determination forms part of the importing Member's 
assessment of the SPS characteristics of that area, within the  meaning of the second sentence of 
Article  6.1, and provides the basis for the importing Member's adaptation of its measure to such 
SPS characteristics, as required by the first sentence of Article  6.1. At the same time, the term 
"necessary" may also indic ate certain limitations on the nature, quantity, and quality of the 
evidence to be provided by the exporting Member: in particular, the exporting Member cannot be 
required to provide evidence that is excessive or not pertinent to a determination by the imp orting 
Member with respect to the pest or disease status of the relevant area.  
5.65.  What exactly constitutes "necessary" evidence for the purposes of the first sentence of 
Article  6.3 must be ascertained in light of the facts and circumstances of each case. Giv en the 
interlinkages between the various provisions of Article  6, an analysis of whether the evidence is 
"necessary" may be informed by what the second sentences of Articles 6.1 and 6.2 require for an 
assessment of the SPS characteristics of the relevant a rea. Moreover, an importing Member will 
usually design its SPS measures, as well as the modalities of t heir adaptation to regional 
SPS characteristics, on the basis of its ALOP. Therefore, the importing Member's ALOP may inform 
the nature, quantity, and qu ality of the evidence that an exporting Member is expected to provide 
in order to make the objective demonstration provided for in Article 6.3.196 The situation may arise 
where, upon review, the evidence provided by the exporting Member proves insufficient f or the 
importing Member to reach a determination as to the pest or disease prevalence in the area 
concerned in light of its ALOP. In this case, the importing Member may request the exporting 
Member to supply additional evidence, pursuant to Article  6.3.197 In this situation, however, the 
term "necessary" also serves to ensure that requests for additional information by the importing 
Member do not go beyond what is required for determining the pest or disease status of the 
relevant areas.198 
5.66.  Finally, we wish to highlight an implication stemming from the fact that the objective 
demonstration by the exporting Member, provided for in the first sentence of Article  6.3, is 
addressed "to the importing Member". As discussed in paragraph 5.64 above, it is for the 
importing Member's authorities to evaluate all evidence relevant  to the pest or disease status of a 
given area. Hence, a panel's review of compliance by the exporting Member with Article  6.3 must 
be limited to assessin g whether the evidence provided by the exporting Member to the importing 
Member is of a nature, quantity, and quality sufficient to enable the importing Member's 
authorities ultimately to make a determination as to the pest or disease status of the relevan t 
areas within the exporting Member's territory. However, a panel assessing compliance with 
                                               
196 We note that, in the context of Article 5.1 of the SPS Agreement, the Appellate Body has stated that 
a risk assessme nt "cannot be entirely isolated" from the ALOP, as there may be circumstances in which the 
ALOP chosen by a Member "affects the scope or method of the risk assessment". (Appellate Body Reports, 
US – Continued Suspension / Canada – Continued Suspension , para. 534) According to the Appellate Body, 
"the determination of whether scientific evidence is sufficient to assess the existence and magnitude of a risk 
[is not] disconnected from the intended level of protection." (Ibid., para. 686) At the same time, the 
Appellate  Body has cautioned that the chosen ALOP "must not affect the rigour or objective nature of the risk 
assessment" or "pre -determine [its] results". (Ibid., para. 534) Similar considerations apply, in our view, in the 
context of the process set out in Article 6. For instance, the importing Member's ALOP may be relevant for 
assessing what constitutes "low pest or disease prevalence" and what scientific and technical evidence is 
required, pursuant to the first sentence of Article 6.3, to show that the level of pest or disease prevalence in a 
given area is, indeed, "low". However, this does not suggest that the importing Member's ALOP may affect the 
rigour or pre -determine the result of that Member's evaluation of the evidence in respect of the relevant areas 
under the second sentences of Articles 6.1 and 6.2.  
197 In this respect, we observe that the typical administrative steps set out in the Article  6 Guidelines 
contemplate an exchange of information in good faith between the exporting Member and the imp orting 
Member, whereby the former provides scientific and technical information about areas within its territory and 
the latter reviews it and communicates any deficiencies.  
198 This finds support in Annex C(1)(c) to the SPS  Agreement, which requires Members  to ensure, with 
respect to any procedure to check and ensure the fulfilment of SPS measures, that "information requirements 
are limited to what is necessary for appropriate control, inspection and approval procedures".  WT/DS475/AB/R  
 
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 Article  6.3 is not called upon to determine for itself, based on the evidence provided by the 
exporting Member, whether the relevant areas are, and are likely to re main, pest - or disease -free 
or of low pest or disease prevalence.  
5.3.1.3   Whether the Panel erred in not finding that Article 6.3  requires consideration of 
the evidence relied upon by the importing Member  
5.67.  We now proceed to evaluate Russia's claim that the Panel er red in its interpretation of 
Article  6.3 of the SPS Agreement by failing to find that this provision requires panels to take into 
account the scientific and technical evidence relied upon by the importing Member, as well as the 
importing Member's assessmen t of the evidence submitted by the exporting Member, in light of 
the importing Member's ALOP.199 According to Russia, Article  6.3 requires panels assessing the 
exporting Member's compliance with that provision to consider: (i)  findings regarding the quality,  
nature, extent, and timing of the evidence provided by the exporting Member to the importing 
Member; (ii) findings regarding evidence generated by the importing Member from audits and 
investigations conducted on the territory of the exporting Member; (iii ) an assessment and 
findings of the quality and credibility of the scientific and technical evidence relied upon by the 
importing Member; (iv)  evaluations of the exporting Member's evidence by the importing Member; 
(v) an assessment of the importing Member 's ALOP; and (vi)  an assessment of the experience and 
knowledge of the importing Member in combating the disease in question.200 
5.68.  In Russia's view, this interpretation finds support in the text and context of Article  6.3. 
Beginning with the text, Russia argue s that the words "in order to", followed by the phrase 
"objectively demonstrate to the importing Member", indicate that the focus of the exporting 
Member's task of assembling the necessary evidence is "to convince the importing Member  to 
accept the proffer ed zone" as being, and likely to remain, disease -free.201 Russia asserts that an 
importing Member's assessment of the evidence pursuant to Article  6.3 is directed at evaluating 
the scientific and technical evidence put forth by the exporting Member, and may entail drawing 
from different, and possibly competing, sources.202 Russia further submits that the word 
"necessary" before the word "evidence" indicates that the sufficiency of an exporting Member's 
evidence may depend on the importing Member's ALOP.203 In ter ms of context, Russia maintains, 
first, that the second sentence of Article  6.3, which accords the importing Member the right to 
inspect a zone "for the purpose of verifying" the exporting Member's demonstration204, indicates 
that panels "cannot ignore" the evidence obtained from inspection visits and audit reports relied 
upon by the importing Member.205 Second, Russia points out that Arti cle 5.3.7(d) of the 
Terrestrial  Code requires an importing Member to "determine … whether it accepts an area as a 
zone for t he importation of animal products".206 Third, Russia notes that the nine typical 
administrative steps in the recognition process set out in the Article  6 Guidelines envisage that the 
importing Member evaluates the information provided by the exporting Member .207 Fourth, Russia 
submits that, since the importing Member's evaluation under Article  6 forms part of that Member's 
risk assessment under Articles  5.1 and  5.2 of the SPS  Agreement208, a panel's task is limited to 
reviewing whether the assessment carried out by the importing Member is objectively 
justifiable.209 Finally, in Russia's view, interpreting Article  6.3 as not requiring consideration of the 
scientific and technical evidence relied upon by the importing Member in light of that Member's 
                                               
199 See supra , para. 5.40. 
200 Russia's appellant's submission, para. 155.  
201 Russia's appellant's submission, para. 113. (emphasis original)  
202 Russia's appellant's submission, para. 119.  
203 Russia's appellant's submission, para. 124. According to Russi a, this is buttressed by 
paragraphs  8-10 of the Article  6 Guidelines, which state that an importing Member may reach any 
determination under Article  6 in accordance with its ALOP.  
204 Russia's appellant's submission, para. 127 (quoting Appellate  Body Report,  India – Agricultural 
Products , para. 5.140).  
205 Russia's appellant's submission, para. 128.  
206 Russia's appellant's submission, para. 131.  
207 Russia's appellant's submission, paras. 132 -133. 
208 Russia's appellant's submission, para. 135 (referring to Panel Re port, US – Animals , paras. 7.644 
and 7.1025).  
209 Russia's appellant's submission, para. 136 (referring to Appellate  Body Reports,  
US – Continued Suspension / Canada – Continued Suspension , para. 590 ). WT/DS475/AB/R  
 
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 ALOP would not al low for the adequate protection of the life and health of animals, thereby 
frustrating the object and purpose of the SPS  Agreement.210 
5.69.  The European  Union, for its part, maintains that the Panel did not err in its interpretation of 
the first sentence of Artic le 6.3 of the SPS  Agreement with regard to the scientific and technical 
evidence relied upon by an importing Member.211 The European  Union recognizes that, as part of 
the process set out in Article  6, the evidence submitted by the exporting Member must be 
assessed by the importing Member. However, the European  Union contends that the first sentence 
of Article  6.3 speaks solely to the "evidence" that an exporting Member must provide to an 
importing Member in the context of the administrative process between th e two Members.212 
Therefore, according to the European  Union, the "matter" before the Panel in this dispute was the 
question of whether the evidence provided to Russia by the European  Union fulfilled the 
requirements of Article  6.3.213 By contrast, the Europea n Union argues that the "self -fabricated" 
information that Russia submitted to the Panel during the course of the proceedings did not form 
part of that matter.214 Hence, the European  Union asserts that the Panel rightfully omitted to 
review that information,  otherwise it would have engaged in an impermissible de novo  review.215 
The European  Union also maintains that, contrary to Russia's position, the first sentence of 
Article  6.3 does not relate to the importing Member's ALOP but, rather, to the necessary evid ence 
relating to the matters specified in that sentence.216 For the European  Union, Russia's attempt to 
equate the word "necessary" in Article  6.3 with a  subjective test, giving unfettered discretion to 
the importing Member, is at odds with the notion of "ne cessity" und er Article  XX(b) of the 
General  Agreement on Tariffs and Trade 1994 – on which the SPS  Agreement elaborates – and 
with the concept of "objective demonstration" in Article  6.3.217 
5.70.  We begin our assessment by recalling that, under the first sentence  of Article  6.3, an 
exporting Member claiming that areas within its territory are pest - or disease -free or of low pest or 
disease prevalence must "provide the necessary evidence" in support of its claim "in order to 
objectively demonstrate to the importing  Member" that the relevant areas "are, and are likely to 
remain, pest - or disease -free or of low pest or disease prevalence". Further, in paragraph 5.64 
above, we have explained that the evidence to be provided by the exporting Member under the 
first sentence of Article  6.3 must be of a nature, quantity, and quality sufficient for an objective 
determination by the importing Member as to the pest or disease status of the relevant area. In 
paragraph 5.62 above, we have noted that Article 6.3 addresses exclusively the "duties that apply 
to … exporting  Members" in connection with the process set out in Article 6.218 Thus, we consider 
that Article  6.3 does not address the obli gations of the importing  Member in  the context of this 
process.  
5.71.  Rather, the obligations of the importing Member in connection with the process of adapting 
measures to regional SPS characteristics are set forth in Articles 6.1 and 6.2. In particular, when 
an exporting Member claims, pursuant to Article 6.3, that areas within its territory are pest - or 
disease -free or of low pest or disease prevalence, the importing Member is required to evaluate all 
the relevant evidence concerning those areas, with a view to "determin[ing]" their pest or disease 
status under the second sentence of Article 6.2 and "assessing" their SPS characteristics under the 
second sentence of Article 6.1. In conducting their evaluation, the importing Member's authorities 
must review the evidence provided by the exporting Member. They may also rely upon data 
gathered through on -site visits to the areas concerned and on any other relevant evidence that the 
importing Member may have acquired from other sources, including from competent inter national 
organizations. We have further considered that the importing Member's assessment of the 
SPS characteristics of the relevant areas may, in certain cases, be conducted as part of a 
Member's risk assessment pursuant to Articles  5.1 through 5.3. In th is respect, we note that, in its 
analysis under Article 6.1, the Panel found that Russia did not base the measures at issue on  a risk 
                                               
210 Russia's appellant's submission, paras. 147 -151. 
211 European  Union's appellee's submission, section III.B.2.iii.  
212 European  Union's appellee's submission, para. 142.  
213 European  Union's appellee's submission, para. 144.  
214 European  Union's appellee's submission, para. 144. See also paras. 142 and 192.  
215 Europea n Union's appellee's submission, para. 145.  
216 European  Union's appellee's submission, para. 147.  
217 European  Union's appellee's submission, paras. 159 -160. 
218 Appellate Body Report, India – Agricultural Products , para. 5.141. (emphasis added)  WT/DS475/AB/R  
 
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 assessment219; nor did Russia show that its authorities had otherwise conducted an evaluation of 
scientific and technical ev idence in respect of the SPS characteristics of the relevant areas.220 
5.72.  In light of the above, while we consider that the proces s of adaptation to regional 
SPS characteristics pursuant to Article 6 requires that all the pertinent evidence in respect of the 
relevant areas (including by relying upon scientific and technical evidence in its possession)  be 
evaluated , we disagree with Russia that this requirement is contained in Article  6.3. As set out in 
paragraph 5.62 above, t he obligations of an importing Member in connection with the process of 
adapting measures to regional SPS characteristics are set forth in Articles 6.1 and 6.2; Article 6.3, 
in turn, sets out the duties of an exporting  Member claiming that areas wi thin its territory are 
pest- or disease -free or of low pest or disease prevalence. Thus, the Panel's task under Article 6.3 
was to assess whether the evidence provided by the European Union to Russia was of a nature, 
quantity, and quality sufficient to ena ble the Russian authorities ultimately to make a 
determination as to the pest or disease  status  of the relevant areas within the European Union. In 
paragraph 5.66 above, we have clarified that, in conducting an assessment under Article 6.3, a 
panel is not called upon  to determine for itself , based on the evidence provided by the exporting 
Member, whether the relevant areas are, and are likely to remain, pest - or disease -free or of low 
pest or disease prevalence.  
5.73.  In articulating what it considered to be its task under Article 6.3, the Panel stated that, if it 
were to find that "the European  Union [had] provided to Russia the necessary evidence in respect 
of the freedom of ASF in certain areas, and the likelihood o f those areas remaining ASF -free, 
regardless of subsequent developments", then it would conclude that "the  European  Union [had] 
succeeded in objectively demonstrating that at any given point in time the areas it claims to be 
ASF-free, are free of such dise ase and are likely to remain so."221 This statement is somewhat 
ambiguous as to whether the Panel considered that the ass essment of whether the 
European  Union had provided the necessary evidence required for an "objective demonstration" of 
the ASF status of the relevant areas was to be conducted by the Panel itself , rather than by the 
Russian authorities.  
5.74.  While the Panel's articulation of its task may be read as suggesting that the Panel did not 
clearly recognize the role of the Russian authorities in evalua ting evidence in respect of the 
relevant areas, we observe that, in the remainder of its analysis, the Panel correctly identified the 
importing Member's authorities as the proper addressee of the European  Union's objective 
demonstration of the pest or dise ase status of the relevant areas under Article  6.3. For instance, 
the Panel found that "the European  Union [had] provided to Russia  the necessary evidence to 
objectively demonstrate" that, at any given point in time, there were ASF -free areas within the 
four affected EU member States.222 Similarly, the Panel found that "the European  Union had not 
provided sufficient information to 'objectively demonstrate'  to Russia " that the ASF -free areas 
within Latvia were likely to remain so.223 Specifically, the Panel stat ed that the European  Union 
had failed to provide to Russia "information [that] would have been necessary for Russia to 
evaluate  the capacity and effectiveness of Latvia's ASF control plans".224 These findings indicate to 
us that, despite some ambiguity in th e language used in parts of its reasoning, the Panel properly 
understood its role under Article 6.3, and limited its  review to whether the European  Union's 
evidence was sufficient to enable the Russian authorities to reac h a determination as to the 
ASF status of the relevant areas.  
                                               
219 Panel Report,  paras. 7.482, 7.483, 7.1025, and 7.1026.  
220 In this respect, we recall that, while the importing Member's ALOP may inform the nature, quantity, 
and quality of the evidence that an exporting Member is expected to provide in order to make the objective 
demon stration provided for in Article 6.3, it cannot affect the rigour or pre -determine the result of that 
Member's evaluation of the evidence in respect of the relevant areas under the second sentences of Articles 6.1 
and 6.2. (See supra , para. 5.65 and fn 196 thereto) Therefore, we do not see that Russia's ALOP in respect of 
ASF would affect its obligation to objectively evaluate the evidence provided by the European Uni on with a view 
to determining the pest or disease  status of the relevant areas and assessing their SPS characteristics.  
221 Panel Report, para. 7.414. Similarly, later in its Report, the Panel stated that "to objectively 
demonstrate that there are ASF -free areas in the European  Union …, the European  Union's burden … [was] to 
demonstrate that it provided Russia the necessary evidence" in respect of the relevant factors previously 
identified by the Panel. (Ibid., para. 7.428)  
222 Panel Report, para. 7.963. (emph asis added) The Panel used similar wording also in its conclusion 
that "the European  Union [had] provided to Russia the necessary evidence to objectively demonstrate" that 
ASF-free areas within Estonia, Lithuania, and Poland were likely to remain so. (Ibid ., para. 7.1004)  
223 Panel Report, para. 7.995. (emphasis added)  
224 Panel Report, para. 7.995. (emphasis added)  WT/DS475/AB/R  
 
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 5.75.  Based on the foregoing, while the Panel could have been clearer in articulating its task 
under Article 6.3, we find that the Panel did not err in its interpret ation of Article 6.3 of the 
SPS Agreement by not finding that this pr ovision requires consideration of the evidence relied 
upon by the importing Member.  
5.3.1.4   Whether the Panel erred in not finding that Article 6.3  contemplates a period of 
time for the importing Member to evaluate and verify the evidence provided by the 
exporting  Member  
5.76.  Russia also claims that the Panel erred in its interpretation of Article  6.3 of the 
SPS Agreement by not finding that this provision contemplates some time for the importing 
Member to evaluate and verify the evidence provided by the exporting Membe r.225 Russia submits 
that, as a consequence of its incorrect interpretation, the Panel improperly set the cut -off date for 
its assessment at 11  September 2014, thereby establishing a timeframe of only three days 
between the date of the first ASF outbreak in Estonia (8  September 2014) and the date at which, 
according to the Panel, the European  Union had provided the necessary evidence to Russia under 
Article  6.3. According to Russia, this time interval was insufficient for the Russian authorities to 
even trans late the relevant documents into Russian, let alone send experts to carry out an 
inspection visit to Estonia.226 
5.77.  Russia contends that the importing Member's evaluation of whether the exporting Member 
has provided the "necessary" evidence, as well as the impo rting Member's conduct of "inspection, 
testing and other relevant procedures"227, are actions that take a reasonable period of time to be 
completed.228 In Russia's opinion, what constitutes a "reasonable" time  period depends on various 
factors229, including: the  timespan that has elapsed between the disease outbreak and the 
"regionalization" request230; the expansion of disease -free areas and/or the establishment of new 
disease -free areas231; the differences in veterinary services and geography between exporting 
countries232; whether the exporting country is dealing with an outbreak for the first time or has 
already accumulated experience from prior outbreaks233; and whether, during the importing 
Member's evaluation, disease outbreaks occur in the alleged disease -free are as.234 Russia asserts 
that its interpretation finds support in the context of Article  6.3. In particular, Russia points to the 
Article  6 Guidelines and Article  5.3.7(d) of the Terrestrial Code, which both indicate that the 
importing Member should evaluate th e information provided by the exporting Member and reach a 
determination thereon within a reasonable period of time.235 Russia also stresses that, under 
Article  8 and Annex C(1)(a) to the SPS  Agreement, not every lapse of time constitutes an undue 
delay, as "a certain period of time is  usually necessary for a Member to undertake and complete a 
control, inspection or approval procedure".236 In this respect, Russia also recalls the Panel's 
finding, in the context of Article  5.7 of the SPS  Agreement, that a Member  may require a certain 
period of time to process detailed and complex information.237  
5.78.  The European  Union acknowledges that, in principle, the process set out in Article  6 requires 
a certain time period to be completed. In particular, the European  Union argu es that a "short 
suspension period" is usually needed between the notification of an outbreak to the OIE and the 
moment trade resumes, in order for the exporting and the importing Members to conduct their 
respective domestic procedures.238 However, for the E uropean  Union, such a suspension period is 
not covered by Article  6.3 but, rather, by Article  5.7 of the SPS  Agreement, which allows the 
importing Member temporarily to stop trade based on a "less" objective risk assessment, while 
                                               
225 See supra , para. 5.41. 
226 Russia's appellant's submission, para. 202.  
227 Russia's appellant's submissi on, paras. 210 -211. 
228 Russia's appellant's submission, para. 212.  
229 See, generally, Russia's appellant's submission, para. 237.  
230 Russia's appellant's submission, para. 214.  
231 Russia's appellant's submission, para. 215.  
232 Russia's appellant's submission, p aras. 215 -216. 
233 Russia's appellant's submission, para. 218.  
234 Russia's appellant's submission, para. 217.  
235 Russia's appellant's submission, paras. 223 and 225.  
236 Russia's appellant's submission, para. 227 (quoting Panel Report, US – Animals , para.  7.113) . 
237 Russia's appellant's submission, para. 230.  
238 European  Union's appellee's submission, para. 221.  WT/DS475/AB/R  
 
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 seeking the additional in formation necessary for a "more" objective risk assessment.239 In turn, 
the European  Union contends that the notion of a reasonable period of time under Article  5.7 is 
"related" to the notion of "undue delay" under Annex C(1)(a) to the SPS  Agreement.240 Accord ing 
to the European  Union, Russia is improperly attempting to "merge" an analysis under 
Annex  C(1)(a) and Article  5.7 with the analysis under Article  6.3.241 The European  Union maintains 
that, given the factual circumstances of this case, the Panel correctly  concluded that the 
European  Union had provided Russia with the necessary evidence for the Russian authorities to 
determine that areas within Estonia were and were likely to remain ASF -free.242 In particular, the 
European  Union asserts that, after the first ASF case in Lithuania in January 2014, but well before 
the first ASF case in Estonia in September 2014, it had provided the Russian authorities with 
"abundant information and evidence" so as to  objectively demonstrate the existence of areas, 
including with in the territory of Estonia, that were and were likely to remain ASF -free.243  
5.79.  In paragraphs 5.59-5.62 above, we have explained that, when adapting measures to 
regional  conditions pursuant to Article  6 of the SPS Agreement, an importing Member is required 
to evaluate all the relevant evidence concerning the areas that the exporting Member claims to be 
pest- or disease -free or of low pest or disease prevalence. The import ing Member's evaluation 
must include the evidence provided by the exporting Member, and may encompass data gathered 
through on -site visits to the areas concerned, as well as any other relevant scientific and technical 
information that the importing Member may have acquired from other sources, including from 
competent international organizations. We have also clarified that the importing Member's 
evaluation of the relevant evidence is not covered by Article  6.3 but, rather, relates to the 
importing Member's "determination" as to the pest or disease status of the relevant areas under 
the second sentence of Article  6.2, and constitutes a component of that Member's "assess[ment]" 
of the SPS characteristics of those areas pursuant to the second sentence of Articl e 6.1. In turn, 
the assessment and determination made by the importing Member under the second sentences of 
Articles 6.1 and 6.2 provide the basis for the "adapt[ation]" of th at Member's measures to the 
SPS characteristics of the relevant areas, as require d by the first sentence of Article 6.1.  
5.80.  The importing Member's evaluation of the relevant evidence for the purposes of assessing 
the SPS characteristics of a particular area and determining its pest or disease status can hardly 
be performed instantly but,  rather, requires a certain period of time to be carried out. Neither 
participant disputes this, and the Panel itself recognized that "a Member may require [a] certain 
[period of] time to process detailed and complex information", and "may even need to tra nslate 
such information in order to properly assess it".244 Likewise, the adaptation of a measure to the 
SPS characteristics of the relevant area may require a certain period of time in light of the 
importing Member's domestic regulatory processes. Hence, wh en an exporting Member claims that 
areas within its territory are pest - or disease -free or of low pest or disease prevalence, the 
importing Member must be accorded a certain period of time to conduct its evaluation of the 
relevant evidence concerning the p est or disease status of such areas and to adapt its measures 
accordingly, as prescribed by Article 6.1 and  the second sentence of Article 6.2.  
5.81.  However, the time that may be taken by the importing Member for its evaluation of 
evidence concerning the pest or disease status of the relevant areas is not left to that Member's 
unfettered discretion. In fact, we note that Annex C(1)(a) to the SPS  Agreement requires Members 
to "ensure, with respect to any procedure to check and ensure the fulfilment of [SPS] meas ures, 
that … such procedures are undertaken and completed without undue delay".245 This obligation to 
proceed without undue delay helps shed light on the appropriateness of the period of time that the 
importing Member enjoys to evaluate the relevant evidence  concerning the pest or disease status 
of a given area  in the context of its assessment and determination pursuant to the second 
sentences of Articles 6.1 and 6.2, and adapt its measures to the SPS characteristics of the relevant 
                                               
239 European  Union's appellee's submission, para. 222.  
240 European  Union's appellee's submission, para. 228.  
241 European  Union's appellee's submission, para. 2 24. 
242 European  Union's appellee's submission, para. 20 7. 
243 European  Union's appellee's submission, para. 213.  
244 Panel Report, para. 7.705. See also para. 7.1186.  
245 Annex C(1) is given operational effect through Article  8 of the SPS  Agreement, according to which 
"Members shall observe the provisions of Annex C in the operation of control, inspection and approval 
procedures". We observe that  the Panel found that the process set out in Article  6 constitutes a procedure 
falling within the purview of Article  8 and Annex C(1). (Panel Report, paras. 7.518, 7.521, 7.522, 7.1057, 
and 7.1061) These Panel findings have not been appealed.  WT/DS475/AB/R  
 
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 areas pursuant to the firs t sentence of Article  6.1. In particular, the notion of "undue delay" does 
not cover any lapse of time, but only delays that "[go] beyond what is warranted" or are otherwise 
"unjustifiable".246 This suggests that what constitutes an appropriate period of tim e is to be 
assessed on a case -by-case basis and may depend  on, among other things, the nature and 
complexity of the procedure to be undertaken and completed.247  
5.82.  In light of the above, we consider that the time required for an importing Member to 
evaluate al l the relevant evidence relating to a given area pertains to the determination of the pest 
or disease status of that area pursuant to the second sentence of Article  6.1, the assessment of its 
SPS characteristics pursuant to the second sentence of Article  6.2, and ultimately the adaptation of 
the importing Member's measures to such SPS  characteristics pursuant to the first sentence of 
Article 6.1. Likewise, the period of time required for the importing Member's authorities to fulfil 
such duties and obligatio ns is covered by the disciplines of Articles 6.1 and 6.2, and is not part of 
the duties of an exporting Member pursuant to Article 6.3. We therefore disagree with Russia that 
the Panel was required, as part of its analysis under Article 6.3, to take into a ccount the period of 
time required for the Russian authorities to evaluate and verify the evidence provided by the 
European Union.  
5.83.  Instead, as we have explained in paragraph 5.72 above, the  Panel's task under A rticle 6.3 
was to assess whether the evidence provided by the European  Union to Russia was of a nature, 
quantity, and quality sufficient to enable the Russian authorities ultimately to make a 
determination as to whether the relevant areas were, indeed, ASF -free and likely to remain so. To 
recall, the Panel found that the evidence provided by the European  Union as at 
11 September  2014 was sufficient for Russia to make such a determination with respect to areas 
within Estonia, Lithuania, and Poland, as well a s to areas within the European  Union outside of the 
four affected member States.248 The scope of these Panel findings is limited to the 
European  Union's compliance with Article  6.3. By contrast, contrary to Russia's position, the 
Panel's findings do not impl y that Russia was required to comply with its obligations under 
Articles  6.1 and 6.2 immediately  after the European  Union had provided the necessary evidence 
under Article  6.3. In our view, the Panel did not require Russia to have evaluated all the scienti fic 
and technical evidence in respect of the relevant areas by 11 September 2014. Rather, Russia 
enjoyed a certain period of time to conduct its evaluation with a view to reaching a determination 
as to the ASF status of the relevant areas and assessing the ir SPS characteristics. Nor do we 
believe that the Panel's findings imply that Russia was required t o adapt its measures to the 
SPS characteristics of such areas by that date.  
5.84.  In this regard, we note that the Panel did consider the period of time required  for the 
Russian authorities to evaluate and verify the evidence provided by the European  Union and move 
forward with the process. For instance, when examining the consistency of Russia's measures with 
Article  8 and Annex C(1)(a)  to the SPS Agreement , the Panel considered that, when a Member 
"makes unnecessary information requests, which go far beyond what would be required to make a 
substantive assessment of the situation subject to the procedure at issue", that Member would act 
in a manner that impedes un dertaking and completing the respective procedures without undue 
delay.249 The Panel found that, at several points in the process, Russia addressed "excessive 
information requests" to the European  Union with respect to the ASF situation in the relevant 
areas .250 The Panel concluded that, by making such requests, Russia failed to undertake and 
complete the procedure without undue delay, inconsistently with Article  8 and Annex C(1)(a).251 
These Panel findings have not been appealed. We thus proceed on the basis tha t Russia failed to 
carry out its duties in connection with the process set out in Article 6 within an appropriate period 
of time.  
5.85.  Finally, we observe that, while the Panel stated that it would examine the matter referred to 
it up to 11 September 2014, and  found that the European Union had provided the necessary 
evidence in respect of areas within Estonia, Lithuania, and Poland, as well as areas within the 
                                               
246 Appellate Body Report, Australia – Apples , para. 437; Panel Reports, EC – Approval and Marketing of 
Biotech Products , para. 7.1495;  US – Animals , para.  7.115.  
247 Panel Reports, EC – Approval and Marketing of Biotech Products , para. 7.1497; US – Poultry (China) , 
para. 7.354; US – Animals , para. 7.114.  
248 Panel Report, paras. 7.456 and 7.1004.  
249 Panel Report, para. 7.583. See also para. 7 .1097.  
250 Panel Report, paras. 7.568 -7.570, 7.1085, and 7.1086.  
251 Panel Report, paras. 7.584 and 7.1099.  WT/DS475/AB/R  
 
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 European Union outside of the four affected member States252, the Panel, in fact, also took into 
account  information submitted after 11 September 2014 at several points in its analysis. Indeed, 
the Panel expressly recognized that its factual assessment was made more complex by the 
"constantly shifting situation and frequent expansion of the protection and su rveillance zones" in 
the four affected EU member States.253 In reviewing the evidence provided by the European  Union 
in respect of areas within Estonia claimed to be disease -free or of low disease prevalence, the 
Panel considered that, given that the first A SF outbreak in tha t EU member State occurred on 
8 September 2014, the "time -frame for the consideration of the necessary evidence of the 
effectiveness of control measures" required an "examination of additional information provided by 
the European  Union after September 2014".254 In its review, the Panel found that this additional 
information "[did] not undermine" its conclusion that, as at 11 September 2014, the 
European  Union had provided to Russia the necessary evidence to objectively demonstrate that 
the A SF-free areas within Estonia were likely to remain so.255 The Panel also expressed its 
awareness that Estonia experienced further ASF outbreaks after September 2014, and stated that 
it would address such subsequent developments in the context of its analysis  under Article  6.1.256 
Having conducted this additional review, the Panel concluded that the arguments and evidence 
adduced by the parties concerning ASF outbreaks that occurred in Estonia between 
11 September  2014 and 2 September 2015 showed that, "in Augus t 2015, there were areas in 
Estonia that remained free of ASF."257  
5.86.  In sum, an importing Member's evaluation of the evidence provided by an exporting 
Member requires a certain period of time to be completed. This period of time is not covered by 
Article 6.3 but, rather , by Article 6.1 and the second sentence of Article 6.2, as informed by 
Article  8 and Annex C(1)(a) to the SPS Agreement. The Panel did take into account the period of 
time required for the Russian authorities to evaluate and verify the evidence  provided by the 
European Union, and made the  unappealed finding that Russia failed to complete the process set 
out in Article 6 within an appropriate period of time. Moreover, we disagree with Russia that the 
Panel improperly set the cut -off date for its assessment at 11  September  2014. The Panel did, in 
fact, consider evidence submitted after that date as part of its analysis under Article 6.1. We 
therefore find that the Panel did not err in its interpretation of Article  6.3 of the SPS Agreement by 
not fi nding that this provision contemplates a certain period of time for the importing Member to 
evaluate and verify the evidence provided by the exporting Member.  
5.3.1.5   Conclusion s on Russia's claim s under Article  6.3 of the SPS  Agreement  
5.87.  With respect to Russia's c laims on appeal that the Panel erred in its interpretation of 
Article  6.3 of the SPS Agreement, we consider that the proces s of adaptation to regional 
SPS characteristics pursuant to Article 6 requires that the importing Member evaluate all the 
relevant ev idence concerning the areas that an exporting Member claims are pest - or disease -free 
or of low pest or disease prevalence. This evaluation is addressed by the second sentences of 
Articles 6.1 and 6.2  of the SPS Agreement , as it relates to the importing Me mber's determination 
of the pest or disease status of the areas concerned and its assessment of their 
SPS characteristics, with a view to adapting its measures accordingly. Similarly, the period of time 
that the importing Member may take to conduct its eva luation and to adapt its measures to the 
SPS characteristics of the relevant areas is covered by Article 6.1 and the second sentence of 
Article 6.2, as informed by Article 8 and Annex  C(1)(a) to the SPS Agreement. By contrast, neither 
the importing Member' s evaluation of the relevant evidence nor the period of time required to 
carry out this evaluation are covered by Article 6.3, which addresses the duties that apply to the 
exporting  Member in connection with the process set out in Article 6. A panel's revi ew under 
Article  6.3 is limited to assessing whether the evidence provided by the exporting Member to the 
importing Member is of a nature, quantity, and quality sufficient to enable the importing Member's 
authorities ultimately to make a determination as t o the pest or disease status of the areas that 
the exporting Member claims to be pest - or disease -free or of low pest or disease prevalence.  
                                               
252 Panel Report, para. 7.1004 . 
253 Panel Report, para. 7.967. (fn omitted)  
254 Panel Report, para. 7.998. (emphasis added)  
255 Panel Report, para. 7.1003.  
256 Panel Report, para. 7.1002.  
257 Panel Report, para. 7.1018.  WT/DS475/AB/R  
 
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 5.88.  For the reasons set out above, we uphold  the Panel's findings, in paragraphs 7.456, 7.963, 
and 7.1004 of the Panel  Report, that, as at 11 September 2014, the European  Union had provided 
the necessary evidence to objectively demonstrate to Russia that: (i) areas within Estonia, Latvia, 
Lithuania, and Poland, a s well as  areas within the European  Union outside of the four  affected 
member States, were  ASF-free; and (ii) the ASF -free areas within Estonia, Lithuania, and Poland, 
as well as  the ASF -free areas within the European  Union outs ide of the four affected 
member  States, were likely to remain so.258 We note that the Panel 's conclusions, as set out in 
paragraphs  8.1.d.iv, 8.1.e.vii, and 8.1.e.viii  of its Report, are worded somewhat differently from 
the Panel's findings mentioned above. Therefore, while we uphold  these conclusions, we 
understand them as follows:  
a. in the perio d between 7 February 2014 and 11 September 2014, the European  Union 
had provided the necessary evidence to objectively demonstrate to Russia, pursuant to 
Article  6.3 of the SPS  Agreement, that there were areas within the European  Union, 
outside of Estonia,  Latvia, Lithuania,  and Poland, which were free of ASF and were likely 
to remain so;  
b. at least as at 11 September 2014, the European  Union had provided the necessary 
evidence to objectively demonstrate to Russia, pursuant to Article  6.3 of the 
SPS Agreement , that there were areas within Estonia, Latvia, Lithuania,  and Poland that 
were free of ASF;  
c. at least as at 11 September 2014, the European  Union had provided the necessary 
evidence to objectively demonstrate to Russia, pursuant to Article  6.3 of the 
SPS Agreement, that the ASF -free areas within Estonia, Lithuania,  and Poland were likely 
to remain so; however, the European  Union failed to provide the necessary evidence to 
objectively demonstrate to Russia, pursuant to Article  6.3 of the SPS  Agreement, that 
the ASF -free areas within Latvia were likely to remain so.  
5.3.2   Russia's claim regarding the relationship between Article  6.1 and Article 6.3 of the 
SPS Agreement  
5.89.  We now turn to Russia's claim that the Panel erred in its interpretation of Article  6.1. In 
particular, Russia submits that the Panel erred in finding that an importing Member can be found 
to have failed to adapt its measures to the SPS  characteristics of areas within an exporting 
Member's territory even in a situation where the exporting Member ha s failed to provide the 
necessary evidence, pursuant to Article  6.3, in order to objectively demonstrate that such areas 
are, and are likely to remain, pest - or disease -free or of low pest or disease prevalence.259 Russia 
contends that, as a result of its inter pretative error, the Panel improperly found that the ban on 
imports of the products at issue from Latvia is inconsistent with Article  6.1.260 We begin by 
providing a brief overview of the Panel's findings under Article  6.3 and Article  6.1 in respect of the 
ban on imports of the products at issue from Latvia.  
5.3.2.1   The Panel's findings  
5.90.  As part of its analysis under Article  6.3 of the SPS  Agreement, the Panel evaluated whether 
the European  Union had provided the necessary evidence to objectively demonstrate to Russ ia 
that areas within the territory of Latvia were, and were likely to remain, ASF -free.261 The Panel 
made the intermediate finding that the European  Union had provided to Russia the necessary 
evidence to objectively demonstrate that, "at any given point in t ime, there were ASF -free areas" 
                                               
258 As discussed in footnote  138 above, had we reversed the Panel's findings under Article  6.3, Russia 
would have requested us also to reverse the Panel's  findings that the EU -wide ban and the country -specific 
bans on imports of the products at issue from Estonia, Lithuania,  and Poland are inconsistent with Article  6.1. 
Since we are, instead, upholding the Panel's findings under Article 6.3, we need not addre ss Russia's 
conditional claim on appeal.  
259 Russia's appellant's submission, para. 259 (referring to Panel Report, paras. 7.365, 7.1011 (second 
sentence), 7.1020, 7.1027, and 7.1028).  
260 Russia's appellant's submission, para. 259 (referring to Panel Report, paras. 7.995 and  7.1028).  
261 Panel Report, paras. 7.942 -7.968 and 7.987 -7.995.  WT/DS475/AB/R  
 
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 within Latvia.262 However, the Panel also found that the European  Union had not provided Russia 
with the necessary evidence to objectively demonstrate that such ASF -free areas within Latvia 
were likely to remain  so. In particu lar, the Panel considered that, "although the European  Union 
[had] provided to Russia a fair amount of information in respect of the measures applied in 
Latvia", it had "failed to provide updated and additional information on Latvia's early detection, 
surveillance and eradication plans after the outbreaks", which would have been "necessary for 
Russia to evaluate the capacity and effectiveness of Latvia's ASF control plans".263  
5.91.  In setting out the legal test for its analysis under Article  6.1 of the SPS  Agreem ent, the 
Panel addressed the potential implications of its findings under Article  6.3 for that analysis. The 
Panel noted the Appellate  Body's statement in India – Agricultural Products  that "an exporting 
Member claiming … that an importing Member has faile d to determine a specific area within that 
exporting Member's territory as 'pest - or disease -free' – and ultimately adapt its SPS measures to 
that area – will have difficulties succeeding in a claim that the importing Member has thereby 
acted inconsistentl y with Articles  6.1 or  6.2, unless that exporting Member can demonstrate its 
own compliance with Article  6.3."264 However, the Panel also noted that, according to the 
Appellate  Body, the above statement does not suggest that a Member adopting or maintaining an 
SPS measure can " only" be found to have breached the obligation in the first sentence of 
Article  6.1 after an exporting Member has made the objective demonstration provided for in 
Article  6.3.265 In particular, the Panel recalled the Appellate Body's stat ements that, "even in the 
absence of such objective demonstration by an exporting Member, a Member may still be found to 
have failed to ensure that an SPS measure is adapted to regional conditions within the meaning of 
Article  6.1 in a situation where, for  example, the concept of pest - and disease -free areas is 
relevant, but such Member's regulatory regime precludes the recognition of such concept."266 
Moreover, "pest - or disease -free areas and areas of low pest or disease prevalence, which are 
specifically a ddressed in Articles  6.2 and 6.3, are only a subset of the SPS characteristics that may 
call for the adaptation of an SPS measure pursuant to the first sentence of Article  6.1."267 These 
considerations confirm that "a Member may act inconsistently with the o bligation under the first 
sentence of Article  6.1 absent the objective demonstration provided for in Article  6.3 by an 
exporting Member ."268 Having noted these statements by the Appellate  Body, the Panel concluded:  
We understand the Appellate  Body's guidance  as indicating that a determination of 
whether a Member ensures adaptation of its measures to the SPS characteristics of 
the importing Member or prevailing in its territory, pursuant to Article  6.1 of the 
SPS Agreement, can be found even when an exporting Member has failed to make the 
objective demonstration pursuant to Article  6.3. In light of this guidance, we will 
assess whether the import bans on the products at issue from Estonia, Latvia, 
Lithuania, and Poland, are adapted to the SPS characteristics of  areas within those 
affected EU member States and of Russia.269 
5.92.  The Panel then turned to assess whether the country -specific bans imposed on imports of 
the products at issue from the four affected EU member Stat es were adapted to regional 
SPS characteristics , as required under the first sentence of Article  6.1. The Panel found that, by 
imposing country -wide bans on imports of such products from the four affected EU member States 
(including Latvia), Russia failed to recognize the existence of ASF -free areas wi thin these member 
States, and thus failed to adapt its measures to the SPS characteristics of such areas.270 Moreover, 
the Panel noted that, starting in  2007, there had been ASF outbreaks in Russia, and that the 
                                               
262 Panel Report, para. 7.963. According to the Panel, the existence of ASF -free areas within the 
territory of Latvia continued through August 2015, despite the occurrence of sever al ASF outbreaks in other 
parts of the country. (See ibid., para. 7.1017)  
263 Panel Report, para. 7.995.  
264 Panel Report, para. 7.1009 (quoting Appellate  Body Report, India – Agricultural Products , 
para. 5.156).  
265 Panel Report, para. 7.1010 (quoting Appellate  Body Report, India – Agricultural Products , 
para. 5.157 (emphasis original)).  
266 Panel Report, para. 7.1010 (quoting Appellate  Body Report, India – Agricultural Products , 
para. 5.157).  
267 Panel Report, para. 7.1010 (quoting Appellate  Body Report, India – Agricultural Products , 
para. 5.157).  
268 Panel Report, para. 7.1010 (quoting Appellate  Body Report, India – Agricultural Products , 
para. 5.157).  
269 Panel Report, para. 7.1011.  
270 Panel Report, para. 7.1020.  WT/DS475/AB/R  
 
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 disease ha d not been eradicated.271 The Panel to ok the view that the existence of a disease within 
the importing country was a "factor[] that affect[s] the potential risks presented by imported 
products and that thus must be considered when determining whether a particular measure is 
adapted to the SPS characteristics of the region to which a product is destined."272 Thus, the Panel 
found that Russia had failed to adapt its measures to the SPS characteristics of the areas to which 
the products at issue were destined.273 Finally, the Panel observed that Russi a had not based 
either its EU -wide ban or the country -specific bans on imports of the products at issue from the 
four affected EU member States on a risk assessment. In the Panel's view, the lack of a risk 
assessment limited Russia's ability to assess the SPS characteristics of the areas from wh ich the 
products at issue originated, and of the areas to which they were destined, with a view to ensuring 
adaptation of its measures to such characteristics.274 Based on the foregoing, the Panel concluded 
that Russia 's bans on imports of the products at issue from the four affected EU member States 
(including Latvia) were inconsistent with Article  6.1. 
5.3.2.2   Whether the Panel erred in finding that Russia had failed to ensure adaptation 
of its ban on imports of the products at issue from Latvia to regional SPS characteristics  
5.93.  Russia maintains that, when an exporting Member has requested the recognition of a 
disease -free area, it must first demonstrate that the conditions of Article  6.3 of the SPS Agreement 
are met; only after  the exporting Member has provided the necessary evidence pursuant to 
Article  6.3 is the importing Member's obligation triggered under Article 6.1 of the SPS Agreement. 
For Russia, the reference in the second sentence of Article  6.1 to the "level of preval ence of 
specific diseases or pests" in the relevant areas ties the importing Member's obligation to ensure 
adaptation directly to the exporting Member's objective demonstration under Article  6.3. Thus, 
Russia contends that, when an exporting Member has fai led to provide the necessary evidence to 
objectively demonstrate to the importing Member, pursuant to Article  6.3, that areas within its 
territory are and are likely to remain pest - or disease -free or of low pest or disease prevalence, an 
importing Member has no obligation to adapt its measures to the SPS  characteristics of such areas 
under Article  6.1.275 
5.94.  Russia further submits that the typical administrative steps of the process described in the 
Article  6 Guidelines, as well as Article  5.3.7 of the Terrestr ial Code, all indicate that the importing 
Member's ability to adapt its measures to the SPS characteristics of areas within the exporting 
Member's territory depends on the exporting Member's objective demonstration as to the pest or 
disease status of such areas.276 In Russia's view, the Panel erred in attaching no significance to the 
exporting Member's duty to provide the necessary evidence that a particular area is likely to 
remain disease -free, thereby depriving Article  6.3 of meaning and reducing this prov ision to "a 
nullity".277 In support of its interpretation, Russia also relies upon the Appellate  Body's statement 
in India – Agricultural Products  that an exporting Member will have difficulties succeeding in a 
claim under Article  6.1 and/or Article 6.2 if i t has not demonstrated its own compliance with 
Article  6.3.278 Russia acknowledges that, according to the Appellate Body, a violation of Article 6.1 
and/or Article  6.2 could be found even absent the exporting Member's compliance with Article  6.3 
in certain s pecific situations.279 However, Russia contends that this is not the case here.280  
5.95.  The European  Union requests the Appellate  Body to uphold the Panel's finding that Russia 
failed to adapt the ban on imports of the products at issue from Latvia  to the SPS  characteristics of 
areas within the Latvian territory. In particular, the European  Union submits that the Panel did not 
err in its interpretation of the relationship between Article  6.1 and Article 6.3.281 The 
                                               
271 Panel Report, para. 7.1022.  
272 Panel Report, para. 7.1 023. 
273 Panel Report, paras. 7.1020 -7.1023 and 7.1027.  
274 Panel Report, paras. 7.1026 -7.1027.  
275 Russia's appellant's submission, para. 265.  
276 Russia's appellant's submission, paras. 278 -283. 
277 Russia's appellant's submission, para. 291.  
278 Russia's appellant' s submission, para. 293 (referring to Appellate  Body Report,  
India – Agricultural Products , para. 5.156). See also Russia's appellant's submission, para. 294 (referring to 
Panel Report, US – Animals , para. 7.664).  
279 Russia's appellant's submission, para. 296 (referring to Appellate  Body Report,  
India – Agricultural Products , para. 5.157).  
280 Russia's appellant's submission, para. 303. See also paras. 307 -312. 
281 European  Union's appellee's submission, para. 255.  WT/DS475/AB/R  
 
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 European  Union argues that the scenarios in which a violation of Article 6.1 and/or Article 6.2 
could be found even absent the exporting Member's compliance with Article  6.3, as identified by 
the Appellate Body in India – Agricultural Products , do not constitute an exhaustive list. For 
example, in a situati on where sufficient evidence is already in the possession of the importing 
Member, that Member could be found to breach Article  6.1 even if the exporting Member has not 
complied with Article  6.3. In addition, the European  Union stresses that the Panel's fi nding that 
Russia failed to adapt its ban on imports of the products at issue from Latvia to the 
SPS characteristics of areas within Russia is, alone, sufficient to conclude that Russia's measure is 
inconsistent with Article  6.1.282  
5.96.  Russia's claim on appeal  raises the issue of the relationship between Article 6.1 and 
Article  6.3 of the SPS Agreement. In particular, we must ascertain what implications, if any, a 
finding that an exporting Member has failed to comply with Article 6.3 may have for an 
assessment of an importing Member's compliance with Article 6.1. At the outset of our analysis, 
we recall that, pursuant to the first sentence of Article  6.1, a Member must ensure the adaptation 
of its measures to the SPS characteristics of the area from which a prod uct originated and of the 
area to which the product is destined. Under the second sentence of Article  6.1, that Member must 
assess the SPS characteristics of the relevant areas with a view to adapting its measures 
accordingly. In turn, Article  6.3 applies to the particular situation in which an exporting Member 
claims that areas within its territory are pest - or disease -free or of low pest or disease prevalence. 
In this situation, the exporting Member must, pursuant to the first sentence of Article  6.3, "pr ovide 
the necessary evidence" in support of its claim "in order to objectively demonstrate to the 
importing Member" that the relevant areas "are, and are likely to remain, pest - or disease -free or 
of low pest or disease prevalence".  
5.97.  The relationship betwe en Article 6.1 and Article 6.3 of the SPS  Agreement was addressed by 
the panel and the Appellate Body in India – Agricultural Products . The panel in that dispute stated  
that Article  6.3 "is not directly linked to the first two paragraphs of Article  6".283 The 
Appellate  Body expressed concern at that panel's statement.284 It held that, while "there is no 
explicit  conditional language linking Article  6.1 and Article  6.3", all the provisions composing 
Article  6 "need to be read together"285, as they are all "linked to, and interact with, the 
overarching obligation to ensure that a Member's SPS measures are adapted to the 
SPS characteristics of the relevant areas".286 Based on a holistic reading of the three paragraphs of 
Article  6, the Appellate  Body explained that, wh en the importing Member has "received a request 
from an exporting Member to recognize an area within its territory as 'disease -free'", the exporting 
Member "will be able to establish that the importing Member's failure to recognize and determine 
that disea se-free area, and to adapt its SPS measure accordingly, is inconsistent with Articles  6.1 
and 6.2 only if that exporting Member can also establish that it took the steps prescribed in 
Article  6.3."287  
5.98.  The Appellate Body, however, also clarified that this sh ould not suggest that "a Member 
adopting or maintaining an SPS measure can only be found to have breached the obligation in the 
first sentence of Article  6.1 after an exporting Member has made the objective demonstration 
provided for in Article  6.3."288 Rather, situations exist in which, "even in the absence of such 
objective demonstration by an exporting Member, a Member may still be found to have failed to 
ensure that an SPS measure is adapted to regional conditions within the meaning of Article  6.1."289 
One such situation is, for instance, where "the concept of pest - and disease -free areas is relevant, 
but a Member's regulatory regime precludes the recognition of such concept."290 Second , pest- or 
disease -free areas and areas of low pest or disease prevalenc e "are only a subset of the 
SPS characteristics that may call for the adaptation of an SPS measure pursuant to the first 
sentence of Article  6.1".291 Third, under certain circumstances, the adaptation of a measure to 
regional SPS characteristics "may be accompl ished by taking into account relevant criteria and 
                                               
282 European  Union's response to questioning at  the oral hearing.  
283 Panel Report, India – Agricultural Products , para. 7.674.  
284 Appellate  Body Report, India – Agricultural Products , para. 5.144.  
285 Appellate  Body Report, India – Agricultural Products , para. 5.155. (emphasis original)  
286 Appellate  Body Re port, India – Agricultural Products , para. 5.144. (fn omitted)  
287 Appellate  Body Report, India – Agricultural Products , para. 5.156.  
288 Appellate  Body Report, India – Agricultural Products , para. 5.157. (emphasis original)  
289 Appellate  Body Report, India – Agricultural Products , para. 5.157.  
290 Appellate  Body Report, India – Agricultural Products , para. 5.157.  
291 Appellate  Body Report, India – Agricultural Products , para. 5.157.  WT/DS475/AB/R  
 
- 44 - 
 
 guidelines developed by [the relevant international] organizations, if any".292 Finally, the 
Appellate  Body recalled that "the overarching requirement under Article  6.1 to ensure the 
adaptation of SPS measur es is an ongoing obligation that applies upon adoption of an 
SPS measure as well as thereafter."293 The Appellate Body concluded that all of these 
considerations reinforce that a Member may be found to have acted  inconsistently with the 
obligation under the first sentence of Article  6.1 even in the absence of the exporting Member 
providing the necessary evidence for an objective demonstration under Article  6.3.294 
5.99.  In the statements above, the Appellate Body was explaining that, on the one hand, the 
exporting Me mber's compliance or non -compliance with Article  6.3 will, in many cases, have 
implications for the importing Member's ability to assess the SPS characteristics of areas located 
within the exporting Member's territory and to adapt its measures accordingly,  as required by 
Article  6.1. This is because, as discussed in paragraph  5.61 above, the  exporting Member is 
usually best placed to gather and provide information about the level of pest or disease prevalence 
in areas located within its territory, such that, without its cooperation, an importing Member's 
ability to determine the pest or disease status of such areas and to adapt its measures to their 
SPS characteristics may, in certain cases, be impaired. On the ot her hand, the Appellate Body 
rejected the notion that an importing Member's violation of Article  6.1 would necessarily be 
contingent on the exporting Member's compliance with Article  6.3. Indeed, the Appellate Body 
considered that, in certain situations, t he importing Member may be required to adapt its 
measures to regional SPS characteristics irrespective of the exporting Member's showing that it 
has complied with Article  6.3.  
5.100.   In light of the above, we consider that a panel should conduct a careful case -by-case 
examination, based on all relevant circumstances, before reaching its conclusions as to the 
relationship between the exporting Member's compliance or non -compliance with Article  6.3 and 
the alleged breach of Article  6.1 by the importing Member. In t he present dispute, the Panel found, 
in the context of its analysis under Article  6.3, that the European  Union had provided Russia with 
the necessary evidence to objectively demonstrate that, at any given point in time, there were 
ASF-free areas within the  territory of Latvia.295 However, the Panel also found that the 
European  Union had not provided the necessary evidence for an objective demonstration that such 
ASF-free areas within Latvia were likely to remain so.296 In our view, the issue of the potential 
implications of a finding that an exporting Member has not complied with Article  6.3 for an analysis 
of whether the importing Member has breached its obligations under Article  6.1 arises, in 
particular, in connection with the latter finding by the Panel, rel ating to the likelihood  that areas 
within Latvia would remain  ASF-free. 
5.101.   The Panel understood the Appellate  Body's guidance as indicating that an importing 
Member's violation of Article  6.1 "can be found even when an exporting Member has failed to 
make the objective demonstration pursuant to Article  6.3".297 This understanding by the Panel is 
not, in itself, at odds with the Appellate Body's statements in India – Agricultural Products . In fact, 
as discussed in paragraph 5.98 above, the  Appellate Body recognized that, in certain situations, an 
importing Member may be required to adapt its measures to regional SPS  characteristics 
irrespective of whether or not an exporting Member has complied with Article  6.3.  
5.102.   Yet, we  recall that at the core of this dispute lies the European  Union's request for Russia 
to recognize areas both outside and inside of each of the four affected  EU member States as 
ASF-free and likely to remain so, and to adapt its SPS measures accordingly. I n these factual 
circumstances, once the Panel had found that the European  Union had failed to provide the 
necessary evidence to objectively demonstrate to Russia that the ASF -free areas within Latvia 
were likely to remain so298, we would have expected the Pa nel to consider the potential 
implications of that finding for the question of whether Russia had complied with its obligation 
under Article 6.1 to adapt the ban on imports of the products at issue from Latvia to the 
SPS characteristics of those areas. To the extent the Panel considered that the factual 
circumstances of this dispute fell within one of the situations identified by the Appellate Body in 
                                               
292 Appellate  Body Report, India – Agricultural Products , para. 5.157.  
293 Appellate  Body Report, India – Agricultural Products , para. 5.157. (emphasis original; fn omitted)  
294 Appellate  Body Report, India – Agricultural Products , para. 5.157.  
295 Panel Report, para. 7.963.  
296 Panel Report, para. 7.995.  
297 Panel Report, para. 7.1011.  
298 Panel Repo rt, para. 7.995.  WT/DS475/AB/R  
 
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 India – Agricultural Products , where an importing Member's violation of Article  6.1 may be found 
even thoug h the exporting Member has failed to show compliance with Article  6.3, we would have 
expected  the Panel to provide reasoning in this respect.  
5.103.   The Panel provided no explanation as to whether it considered the factual circumstances of 
this dispute to be aki n to one of the situations identified by the Appellate Body in  
India – Agricultural Products . Nor did the Panel explore whether additional, comparable 
circumstances existed in this dispute that otherwise warranted a finding that Russia had failed to 
ensur e the adaptation of the ban on imports of the products at issue from Latvia under Article  6.1 
despite the fact that the European  Union had failed to make an objective demonstration pursuant 
to Article  6.3. Rather, the Panel moved on to assess whether Russi a had adapted its measures to 
the SPS characteristics of the relevant areas, including areas within the territory of Latvia, 
pursuant to the first sentence of Article  6.1. In so doing, the Panel d id not attach any significance 
to its finding that the Europ ean Union had failed to provide the necessary evidence to objectively 
demonstrate to Russia that areas within the territory of Latvia were likely to remain ASF -free. We 
therefore find that the Panel erred  in finding , in paragraph 7.1028 of the Panel  Report , that Russia 
had failed to adapt the ban on imports of the products at issue from Latvia  to the ASF -free areas 
within Latvia.  
5.104.   In light of this conclusion, we must now ascertain the consequences of the Panel's error for 
the Panel's ultimate conclusion tha t the ban on imports of the products at issue from Latvia is 
inconsistent with Article  6.1. In this respect, we recall the Panel's finding that "Russia did not base 
either its EU -wide ban or the bans on products at issue from the four ASF -affected member S tates 
on a risk assessment ."299 According to the Panel, the lack of a risk assessment limited Russia's 
ability to, inter alia, assess the SPS characteristics of the relevant areas within the territory of 
Latvia and to adapt its measure accordingly.300 Therefor e, the Panel found that Russia's failure to 
conduct a risk assessment "further reinforced" the conclusion that the ban on imports of the 
products at issue from Latvia is inconsistent with Article 6.1.301 In paragraph 5.59 above, we have  
taken the view that the assessment of the SPS characteristics of an area may, but need not, be 
conducted as part of a Member's risk assessment. We have also explained that the assessment of 
the SPS characteristics of an area provide s the basis for the adap tation of a measure to such 
SPS characteristics pursuant to the first sentence of Article  6.1. As Russia did not base the ban on 
imports of the products at issue from Latvia on a risk assessment, and did not show that its 
authoritie s had otherwise conducted an evaluation of scientific and technical evidence in respect of 
the SPS characteristics of areas within the Latvian territory, we fail to see the basis on which 
Russia could have adapted its measure to the SPS  characteristics of such areas.  
5.105.   Moreover, we observe that Russia's failure to adapt the  measure in question to the 
SPS characteristics of areas within the territory of Latvia was not the sole ground for the Panel's 
finding of inconsistency with Article  6.1. Rather, the Panel also found that Russia failed to adapt its 
measure to the SPS characteristics of areas within the territory of Russia , thereby breaching its 
obligation under Article  6.1 in respect of the SPS characteristics of the area "to which the product 
is destined".302 While Russia does not appeal this latter finding by the Panel303, it contends that 
this finding does not constitute an independent ground for finding an inconsistency with 
Article  6.1, because the Panel did not make relevant f indings with respect to the 
SPS characteristics prevailing in Russia304, and did not compare such characteristics to those 
prevailing in Latvia.305  
5.106.   We are not persuaded by Russia's contention that the Panel made no factual and legal 
findings with respect of ASF prevalence in the areas with in the Russian territory "to which the 
product is destined". The Panel observed that, starting in 2007, there ha d been ASF outbreaks in 
Russia, and that the disease ha d not been eradicated.306 According to the Panel, the presence of 
ASF in these  areas was hi ghlighted by the consulted experts several times during the course of the 
                                               
299 Panel Report, para. 7.1026.  
300 Panel Report, para. 7.1026.  
301 Panel Report, para. 7.1027.  
302 Panel Report, para. 7.1028.  
303 Russia's response to questioning at the oral hearing.  
304 Russia's appellant's submission, para. 309.  
305 Russia's appell ant's submission, para. 311.  
306 Panel Report, para. 7.1022.  WT/DS475/AB/R  
 
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 Panel proceedings.307 In particular, the Panel referred to Dr Gavin Thomson's statements that the 
ASF problem "is a regional one encompassing the Caucuses, Baltic States, the Russian F ederation 
and eastern parts of the EU", and that, "from an ASF perspective, the whole region seems to be in 
roughly the same position."308 On this basis, the Panel took the view that the existence of a 
disease within areas of the importing Member's territory  is a "factor[] that affect[s] the potential 
risks presented by imported products and that thus must be considered when determining whether 
a particular measure is adapted to the SPS characteristics of the region to which a product is 
destined."309 In light of the above, we consider that the Panel sufficiently substantiated its 
reasoning and articulated its analysis as to the ASF situation in Russia as to provide an 
independent ground for a finding that Russia's ban on imports of the products at issue from La tvia 
is inconsistent with Article  6.1 of the SPS Agreement.  
5.3.2.3   Conclusion on Russia's claim regarding the relationship between Article  6.1 and 
Article  6.3 of the SPS Agreement  
5.107.   With respect to Russia's claim on appeal that the Panel erred in its interpretatio n of the 
relationship between Article 6.1 and Article 6.3 of the SPS Agreement, we consider that an 
exporting Member's failure to provide the necessary evidence to objectively demonstrate that 
areas within its territory are pest - or disease -free or of low pest or disease prevalence will, in 
many cases, have implications for the importing Member's ability to assess the SPS characteristics 
of such areas and to adapt its measures accordingly. A panel may, in certain specific situations 
such as those identified  by the Appellate Body in India – Agricultural Products , find that an 
importing Member failed to comply with Article 6.1 irrespective of the exporting Member's 
compliance or non-compliance with Article 6.3. However, a panel should provide reasoning 
explain ing why the circumstances of the dispute fall within one or more of those specific situations, 
or why they otherwise warrant a finding that the importing Member acted inconsistently with 
Article  6.1. The Panel in this dispute did not provide such reasoning .  
5.108.   Therefore, we modify  the Panel's findings, in paragraphs 7.1028 and 8.1.e.ix of the Panel 
Report, to the effect that the European Union has failed to demonstrate that Russia did not adapt 
the ban on imports of the products at issue from Latvia to the SP S characteristics of areas within  
the Latvia n territory , pursuant to Article 6.1 of the SPS Agreement . However, given the Panel's 
finding that Russia failed to adapt the ban on imports of the products at issue from Latvia to the 
SPS characteristics of area s within Russia, the Panel's conclusion that this measure is inconsist ent 
with Article 6.1 of the SPS  Agreement stands.  
5.3.3   The European Union's claim under Article  6.2 of the SPS  Agreement  
5.109.   The European Union requests us to reverse the Panel's conclusions that  Russia recognizes 
the concepts of pest - or disease -free areas and areas of low pest or disease prevalence in respect 
of ASF , and that, therefore, the EU -wide ban and the country -specific bans on the importation of 
the products at issue from the four affec ted EU member States are not inconsistent with Russia's 
obligation under Article  6.2 of the SPS  Agreement.310 Furthermore, the European Union requests 
us to complete the legal analysis and find that Russia has failed to comply with its obligation under 
Article 6.2 to recognize the concept of regionalization in respect of ASF.311 
5.110.   For its part, Russia requests us to uphold the above conclusions of the Panel.312 
Furthermore, Russia requests that, in the event that we find that the Panel erred in its analysis 
under A rticle 6.2, we complete the legal analysis and find that Russia recognizes the concept of 
regionalization in respect of ASF.313 
                                               
307 Panel Report, para. 7.1022.  
308 Panel Report, para. 7.1023 (quoting Panel expert Dr Gavin Thomson's response to European  Union's 
question No. 5, para. 1.128).  
309 Panel Report, para. 7.1023.  
310 Europe an Union's other appellant's submission, para.  50 (referring to paras.  7.373, 7.379, 7.485, 
and 8.1.d.iii of the Panel Report with respect to the EU -wide ban, and to paras.  7.925, 7.1029, and  8.1.e.vi of 
the Panel Report with respect to the country -specifi c bans).  
311 European  Union's other appellant's submission, para.  50. 
312 Russia's appellee's submission, paras.  76, 78, and 96.  
313 Russia's appellee's submission, para.  80.  WT/DS475/AB/R  
 
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 5.3.3.1   The Panel's findings  
5.111.   Before the Panel, the European Union alleged that Russia is in breach of the obligation set 
out in the first  sentence of Article  6.2 of the SPS Agreement to recognize the concepts of pest - or 
disease -free areas and areas of low pest or disease prevalence wi th respect to ASF. The 
European  Union argued that the country -specific bans and the EU -wide ban on the impo rtation of 
the products at issue fail to distinguish between ASF -free areas and areas considered infected with 
ASF within the E uropean  Union and the four partially affected EU member States.314 Therefore, 
these measures do not match but, in fact, contradict the allegedly explicit recognition in Russian 
legislation.315  
5.112.   In response, Russia argued before the Panel that the obligation in Article  6.2 to recognize 
the concepts of pest - or disease -free areas and areas of low pest or disease prevalence does not 
impose  an obligation on the importing Member to recognize a specific area in the exporting 
Member as pest - or disease -free or of low pest or disease prevalence, but that it merely requires 
the importing Member to allow for the consideration of regionalization.316 
5.113.   At the outset of its analysis, the Panel noted that Article 6 does not specify any particular 
manner in which a Member must "recognize" the concepts set out in Article 6.2.317 The Panel then 
quoted from the interpretation of Article 6.2 developed by the Appe llate Body in 
India ‒ Agricultural Products , and went on to consider evidence submitted by Russia in support of 
its contention that the concept of regionalization is recognized in Russia's legal framework. In 
particular, the Panel considered several elemen ts of Customs Union Decision No. 317318, as well as 
the 2006 Memorandum between the European Union and Russia319, and several elements of the 
EU–Russia bilateral veterinary certificates.320 
5.114.   Thereafter, the Panel referred to statements of the panels in US – Anima ls and 
India ‒ Agricultural Products that Article  6.2 simply requires an acknowledgement of the concept of 
regionalization in the form of "abstract idea s" and thus imposes a less stringent or less exigent 
obligation than Article  6.1, which requires Members to "en sure" that a measure is "adapted" to the 
SPS characteristics of an area.321 In light of this observation, the Panel found that "Russia's 
legislative framework recognizes the concept of regionalization within the meaning of 
Article  6.2."322 
5.115.   The Panel then state d that "the parties' arguments press us to further examine whether 
such recognition in a Member's legislative [or] regulatory framework suffices for a Member to 
comply with its obligations under the first sentence of Article  6.2 in respect of the specific 
SPS measures at issue in a given case."323 In particular, the Panel noted the European Union's 
contention that "what matters for the present analysis 'is not the abstract, distinct from and taken 
prior to , recognition of the concept of disease -free areas in the Russian legislation, but the 
recognition of this concept through and upon adoption of the very SPS measure  that is required to 
be adapted to the SPS  characteristics of the relevant areas.'"324  
                                               
314 European Union's second written submission to the Panel, para. 9 1. 
315 Panel Report, p ara. 7.374 (referring to European  Union's second written submission to the Panel, 
para. 92). 
316 Panel Report, para.  7.374 (referring to Russia's second written submission to the Panel, para.  135, in 
turn referring to the Article 6 Guidelines).  
317 Panel Repor t, para.  7.367 (referring to Appellate Body Report, India – Agricultural Products , 
para. 5.136).  
318 Panel Report, paras.  7.369 and 7.371 (referring to Decision of the Customs Union Commission 
No. 317 of 18 June 2010 on Common Veterinary (Veterinary and Heal th) Requirements in relation to Goods 
Subject to Veterinary Control (Inspection), as  amended (Customs Union Decision No. 317) (Panel Exhibit 
RUS-25.b)).  
319 Panel Report, para.  7.371 (referring to 2006 Memorandum (Panel Exhibit EU -61)). 
320 Panel Report, para.  7.371 (referring to Veterinary certificate for E U exports to Russia (Panel Exhibit 
EU-52); and other veterinary certificates set out in Panel Report, fn 248 to para. 7.141).  
321 Panel Report, para.  7.373 and fn 545 thereto ( referring to Panel Report, US – Animals , para.  7.647, 
in turn referring to Panel Report, India – Agricultural Products , para. 7.670).  
322 Panel Report, para.  7.373. (fn omitted)  
323 Panel Report, para.  7.374.  
324 Panel Report, para.  7.374 (quoting European  Union's second written submission to t he Panel, 
para. 90 (emphasis original)).  WT/DS475/AB/R  
 
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 5.116.   The Panel then referred to the concerns expressed by the App ellate Body about certain 
statements made by the panel in India – Agricultural Products , which could be read as excluding 
that recognition of the concepts under Article 6.2 "could be done through and upon adoption of the 
very SPS measure that is adapted to  the SPS  characteristics of the relevant areas."325 However, 
the Panel in the present dispute considered that, in India – Agricultural Products , the 
Appellate  Body was addressing a situation "where an SPS measure adopted by a Member could 
recognize the conce pts mentioned in Article  6.2 even in the absence of such recognition in a 
pre-existing regulatory framework".326 In the Panel's view, it was faced in the present case with a 
different situation, because the measures at issue had been adopted in the context o f a regulatory 
framework that contains "a general recognition of the concepts mentioned in the first sentence of 
Article  6.2".327 
5.117.   Finally, the Panel explained that the European Union's claim under Article 6.2 in the 
present case was "best examined in the con text of [the] analysis of a Member's obligation under 
Article  6.1, rather than under Article  6.2 of the SPS  Agreement".328 In particular, the Panel 
expressed a concern not to analyse "a crucial element of [the] assessment under Article  6.1, 
i.e. whether Russ ia calibrated the measures at issue to the existence or not of ASF -free areas 
within the European Union, through the lens of Article  6.2" and thus to act against the principle of 
effective treaty interpretation.329 
5.118.   Based on these considerations, the Panel co ncluded that Russia recognizes the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence in respect of ASF, and 
that, therefore, the EU -wide ban and the country -specific bans are not inconsistent with Russia's 
obligation under  the first  sentence of Article  6.2 of the SPS  Agreement.330 
5.3.3.2   Interpretation of Article 6.2 of the SPS  Agreement  
5.119.   The European Union appeals the Panel's finding that Russia recognizes the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence in respect of ASF.331 For its 
part, Russia requests us to affirm the Panel's finding.332 We begin by setting out our interpretation 
of Article 6.2 of the SPS  Agreement as relevant to the claim before us. We then turn to review the 
Panel's analysis a nd address the specific arguments raised on appeal by the participants.  
5.120.   The Appellate Body addressed the interpretation of Article 6.2 of the SPS  Agreement in 
India – Agricultural Products . This provision is part of Article 6, which, as its title indicate s, 
concerns the adaptation of measures to regional conditions. The overarching obligation is set out 
in the first sentence of Article  6.1, and stipulates that  Memb ers shall ensure that their 
SPS measures are "adapted" to the "sanitary or phytosanitary char acteristics" of the areas from 
which the product originated and to which the product is destined.333  
5.121.   Article 6.2 elaborates on a specific aspect of that overarching obligation.334 Beginning with 
the words "Members shall", Article 6.2 stipulates a general obli gation.335 This obligation is 
introduced with the words "in particular", which express a proposition in which something is said 
about some, but not all, of a class.336 The words "in  particular" connecting Article  6.2 to Article  6.1 
thus clarify that the obliga tion in Article 6.2 regarding pest - or disease -free areas and areas of low 
                                               
325 Panel Report, para.  7.375 (quoting Appellate Body Report, India – Agricultural Products , 
para. 5.143).  
326 Panel Report, para.  7.375.  
327 Panel Report, para.  7.376.  
328 Panel Report, para.  7.376.  
329 Panel Report, para.  7.378.  
330 Panel Report, paras.  7.379, 7.925, 8.1.d.iii, and 8.1.e.vi.  
331 European  Union's other appellant's submission, para.  50 (referring to paras.  7.373, 7.379, 7.485, 
and 8.1.d.iii of the Panel Report with respect to the EU -wide ban, and to paras.  7.925, 7.1029, and  8.1.e.vi of 
the Panel Report with respect to the country -specific bans).  In this Report, we  also refer to the "concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence " jointly as the concept of 
"regionalization ". 
332 Russia's appellee's submission, paras.  76, 78, and 96.  
333 See Appellate  Body Report, India – Agricultural Products , para.  5.141.  
334 Appellate  Body Report, India – Agricultural Products , para.  5.141.  
335 See e.g. Appellate  Body Report, EC – Tube or Pipe Fittings , para.  97. 
336 Oxford English Dictionary online, definition of "in particular", available at: 
<http://www.oed.com/view/Entry/138260>.  WT/DS475/AB/R  
 
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 pest or disease prevalence relates to a subset of the SPS  characteristics that are relevant under 
Article 6.1.337 We recall that, in India – Agricultural Products , with respect to the  obligation in 
Article 6.1, the Appellate Body held that this is not a "static", but an ongoing obligation, requiring 
that SPS measures be adjusted over time so as to remain adapted to the SPS characteristics of the 
relevant areas.338 
5.122.   By referring to regiona l conditions "including" pest - or disease -free areas and areas of low 
pest or disease prevalence, the title of Article 6 further supports the understanding that the pest or 
disease status of an area is a subset of all the SPS characteristics of an area tha t may call for the 
adaptation of an SPS measure. As such, the pest and disease status is part of the broader set of 
regional conditions to be considered under Article  6.1.339 In this vein, together with the title to 
Article 6, the words "in particular" in Article 6.2 underline the interlinkages between the first and 
second paragraphs of Article  6.340 Furthermore, the Appellate Body highlighted the particular 
saliency of "pest - or disease -free areas" and "areas of low pest or disease prevalence" as factors to 
be taken into account in assessing the SPS characteristics of a region, pursuant to the second 
sentence of Article  6.1.341 
5.123.   Article  6.2 describes the scope of the Members' obligation as "recogniz[ing] the concepts" 
of pest - or disease -free areas and areas of lo w pest or disease prevalence. The definition of the 
word "concept" includes "a general notion or idea".342 The verb "recognize", in turn, is defined as 
"[t]o accept the authority, validity, or legitimacy of" something.343 Because the absence or low 
prevalence of a pest or disease is part of the broader set of regional conditions to be considered 
under Article  6.1, we must consider the meaning of the terms of Article 6.2 within the context of 
the principal obligation stipulated in Article  6.1, namely, that SPS m easures be adapted to the 
SPS characteristics of the area s from which the product originated and to which the product is 
destined. Article  6.1 provides that Members shall "ensure" that their SPS  measures are adapted to 
the SPS  characteristics of the area f rom which the product originated. The Appellate  Body noted 
that the verb "ensure" is defined as making certain the occurrence of a situation or outcome344, 
and thus envisages that Members take steps towards the achievement of adaptation of their 
measures to the SPS characteristics of certain areas.  
5.124.   The Appellate  Body understood the use of the verb "ensure" in connection with the 
adaptation of "SPS  measures" in the plural as indicating something that should  be done 
consistently and systematically by Members.345 Moreover, the Appellate Body noted that the 
reference to "SPS  measures" in the plural suggests that the obligation of adaptation to regional 
conditions applies generally, as well as in connection with each specific SPS measure maintained 
by a Member. At t he same time, the Appellate Body attached significance to the fact that Article 6 
does not specify any particular manner in which a Member must ensure adaptation of its 
SPS measures within the meaning of Article 6.1, or how it must recognize the concepts s et out in 
Article  6.2.346 The Appellate Body considered that this suggests that Members enjoy a "degree of 
latitude" in determining how to ensure adaptation of their SPS measures to regional conditions 
pursuant to Article 6.1, and how to recognize the releva nt concepts pursuant to Article 6.2.347  
5.125.   The second sentence of Article 6.2 refers to a Member's "determination" of pest - or 
disease -free areas and areas of low pest or disease prevalence, and stipulates that such 
determination shall be based on factors such  as those listed in that sentence.348 As we see it, 
making a determination pursuant to Article 6.2 requires the importing Member to take specific 
                                               
337 Appellate  Body Report, India – Agricultural Products , para.  5.140.  
338 Appellate  Body Report, India – Agricultural Products , para.  5.132.  
339 Appellate  Body Report, India – Agricultural Products , para.  5.133.  
340 Appellate  Body Report, India – Agricultural Products , para.  5.133.  
341 Appellate  Body Report, India – Agricultural Products , para.  5.133.  
342 Oxford English Dictionary online , definition of "concept", available at: 
<http://www.oed.com/view/Entry/38130>.  
343 Oxford English Dictionary online, definition of "recognize", available at: 
<http://www.oed.com/view/Entry/159656>.  
344 Appellate  Body Report, India – Agricultural Products , para. 5.132.  
345 Appellate  Body Report, India – Agricultural Products , para.  5.132.  
346 Appellate Body Report, India – Agricultural Products , para.  5.136.  
347 Appellate Body Report, India – Agricultural Products , para.  5.137.  
348 In particular, the second sentence of  Article 6.2 refers to geography, ecosystems, epidemiological 
surveillance, and the effectiveness of sanitary or phytosanitary controls.  WT/DS475/AB/R  
 
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 steps, and thus envisages a certain process, for the determination of pest - or disease -free areas or 
areas of lo w pest or disease prevalence. In this vein, the Appellate  Body has held that the 
assessment of whether a Member has complied with the obligations in Articles 6.1 and 6.2 may 
involve "scrutiny of the specific steps and acts that the Member has or has not ta ken" in light of 
the SPS  characteristics of the relevant areas, as well as of broader aspects of the importing 
Member's regulatory regime governing SPS matters.349 Specific instances of recognition or 
non-recognition of the concepts of pest - or disease -free areas and areas of low pest or disease 
prevalence may thus be relevant in the analysis of whether an importing Member complies with its 
obligation under the first sentence of Article 6.2. Where such instances of recognition are 
presented to a panel, these instances must be taken into consideration in the assessment of 
whether or not a Member has complied with its obligation under Article 6.2.  
5.126.   Furthermore, we attach significance to the fact that Article 6.3 envisages that the 
exporting Member may make the cl aim that areas within its territory are pest - or disease -free or 
of low pest or disease prevalence. Taking into account the ongoing nature of the obligation to 
adapt SPS  measures to regional conditions, we consider that Article 6.2 requires the importing 
Member to provide an effective opportunity for the exporting Member to make the claim, 
addressed to the importing Member, that areas within its territory are pest - or disease -free or of 
low pest or disease prevalence, by maintaining a practice of, or a proc ess for, receiving such a 
claim by an exporting Member affected by a specific SPS measure. Accordingly, we see Article 6.2 
not as an obligation to acknowledge the concept of regionalization as an abstract idea350; rather, 
we see it as an obligation to render  operational the concepts of pest - or disease -free areas and 
areas of low pest or disease prevalence.  
5.127.   Finally, we note that Article 6.2 does not prescribe a particular manner in which Members 
must recognize the concepts of pest - or disease -free areas and areas of low pest or disease 
prevalence. We therefore consider that a Member's recognition of such concepts may be expressed 
in different ways. The recognition of the concepts of pest - or disease -free areas and areas of low 
pest or disease prevalence  will often be embodied in a Member's regulatory framework. In that 
respect, the Appellate Body held that the assessment of the consistency of an SPS measure with 
the obligations of Article  6.1 and Article 6.2 will be facilitated in circumstances where Members p ut 
in place a regulatory scheme or structure that accommodates adaptation of SPS measures on an 
ongoing basis.351  
5.128.   At the same time, we recall that the Appellate Body held that recognition of the relevant 
concepts pursuant to Article  6.2 will not necessarily , and in every case, require an affirmative act 
that is " distinct from  and taken prior to " the adoption of an SPS measure.352 Accordingly, specific 
instances of recognition or non -recognition of the concepts of pest - or disease -free areas and 
areas of low pe st or diseas e prevalence may be relevant for assessing a Member's compliance with 
Article  6.2. In this vein, we can also conceive of the situation where recognition of the relevant 
concepts is not contained in the regulatory framework, but manifests itself  in a Membe r's practice 
of giving an effective opportunity to an exporting Member to make the claim that areas within its 
territory are pest - or disease -free or of low pest or disease prevalence.  
5.129.   In sum, while the assessment of a Member's compliance with Article 6.2 will be a function 
of the specific claims raised by the complainant and the circumstances of any particular case, we 
consider that, in any event, the obligation to "recognize the concepts" of pest - or disease -free 
areas and areas of low pest or  disease prevalence pursuant to Article  6.2 is part of the overarching 
obligation of Members to ensure adaptation of their SPS measures to regional conditions under  
Article  6.1. Moreover , the obligation in Article 6.2 must also be interpreted in light of t he fact that 
Article 6.3 envisages that an exporting Member may make the claim, addressed to the importing 
Member, that areas within its territory are pest - or disease -free or of low pest or disease 
prevalence. In particular, we have found that the importi ng Member must provide an effective 
opportunity for the exporting Member to make such a claim and thus render operational the 
concepts of pest - or disease -free areas and areas of low pest or disease prevalence. This may be 
achieved through, individually or  jointly: a provision in the reg ulatory framework; the very 
SPS measure at issue; and a practice of recognizing pest - or disease -free areas or areas of low 
                                               
349 Appellate  Body Report, India – Agricultural Products , para.  5.137.  
350 See Panel Report, para. 7.373.  
351 Appellate  Body Report, India – Agricultural Products , para.  5.138.  
352 Appellate  Body Report, India – Agricultural Products , para.  5.143. (emphasis original)  WT/DS475/AB/R  
 
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 pest or disease prevalence. All these elements may be relevant in an assessment of a Member's 
compli ance with the obligation under Article  6.2 of the SPS Agreement. As each element may 
contribute to a different degree to the overall compliance by  that Member with its obligation to 
recognize the concepts of pest - or disease -free areas and areas of low pes t or disease prevalence, 
the focus of a panel's analysis will depend on the circumstances of the case and the particular 
instruments at issue.  
5.3.3.3   Whether the Panel erred in finding that Russia recognizes the concepts of 
pest- or disease -free areas and areas o f low pest or disease prevalence in respect of ASF  
5.130.   We now turn to review the Panel's analysis under Article  6.2 of the SPS Agreement, in 
order to assess the European Union's claim that the Panel erred in finding that Russia recognizes 
the concepts of pest - or disease -free areas and areas of low pest or disease prevalence in respect 
of ASF. In particular, the European Union contends that the Panel erred in considering that 
Article  6.2 requires merely an "abstract" recognition of the concept of regionalizatio n, for instance, 
in the form of a pre -existing regulatory framework.353 The European  Union highlights that the text 
of the first sentence of Article  6.2 does not refer to a particular manner in which a Member shall 
recognize the concept of regionalization an d submits that, therefore, such recognition can occur in 
different ways, such as through a pre -existing regulatory framework or through the very measure 
at issue.354 
5.131.    For the European Union, a concrete measure post -dating the regulatory framework can in 
fact contradict the formal regulatory framework, effectively deny "regionalization", and thus 
amount to actual non -recognition of the concepts of pest - or disease -free areas and areas of low 
pest or disease prevalence.355 The European Union argues that, in such situation s, an importing 
Member would only "pay lip service" to the recognition of the concept and at the same time refuse 
the imports of the products at issue.356 Such conduct would not comply with the obligation under 
Article 6.2 to recognize the concepts of pest - or disease -free areas and areas of low pest or 
disease prevalence.  
5.132.   For its part, Russia submits that the Panel correctly found that Article  6.2 requires an 
importing Member to make the application of regionalization legally possible, but it does n ot 
require an examination of whether a particular challenged SPS measure is applied in a manner 
consistent with "regionalization" requirements.357 Russia argues that Article  6.2 requires proof only 
of an express recognition of the concepts of pest - or diseas e-free areas and areas of low pest or 
disease prevalence, not of a Member's proper application of the concept of regionalization in a 
particular challenged SPS  measure.358 
5.133.   Russia submits that the approach advocated by the European Union would conflate 
Article 6.1 and Article  6.2 of the SPS  Agreement: if an SPS measure accords recognition to a 
"regionalization" request, it will likely comply with Article  6.1 and, consequently, with Article  6.2. 
Conversely, "if an importing Member has determined not to accord r ecognition to a regionalization 
request in violation of Article  6.1 and/or has failed to adapt its challenged SPS  measure to 
domestic SPS characteristics", then the panel would have to make "a negative finding of 
'recognition' under Article  6.2", even wher e it is undisputed that the importing Member has 
detailed the various concepts of regionalization in its regulatory framework.359 For Russia, this 
could lead to an "absurd situation" in which a panel finds, "solely on the basis of the 
WTO-inconsistent applic ation of a regionalization request, that a Member, in its entirety, does not 
recognize  the concept[s] of pest - or disease -free areas, or areas of low pest or disease prevalence 
under Article  6.2, even if that Member has in place a robust and well -functioni ng regionalization 
framework, and has actively recognized and applied regionalization in many different contexts over 
a considerable period of time."360 
                                               
353 European  Union's other appellant's submission, para.  30. 
354 European  Union's other appellant's submission, para.  38. 
355 European  Union's other appellant's submission, para.  33. 
356 European  Union's other appellant's submission, para.  36. 
357 Russia's appellee's submission, para.  51. 
358 Russia's appellee's submission, para.  28. 
359 Russia's appellee's submission, para.  66. 
360 Russia's appellee's submission, para.  64. (emphasis original)  WT/DS475/AB/R  
 
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 5.134.   Turning to consider the Panel's analysis, we note that the Panel began by recalling the 
Appellate  Body's statement  in India – Agricultural Products  that Article  6 of the SPS Agreement 
does not specify any particular manner in which a Member must "recognize" the concepts set out 
in Article  6.2 and that it does not prescribe whether recognition of the relevant concept must be 
"done in writing through a formal governmental act, or whether it may be accomplished in some 
other manner".361 The Panel then reviewed a number of legal instruments relied upon by Russia in 
support of its contention that it recognizes the co ncept of regionalization362, and found that 
Russia's regulatory framework recognizes such concept within the meaning of Article  6.2.363 The 
Panel explained that this finding rested on the basis that the acknowledgement of particular 
"abstract ideas" is suffici ent for the purposes of Article  6.2, which it considered to be a less 
stringent obligation than that of "ensuring" that a measure is "adapted" to the SPS characteristics 
of an area under Article  6.1.364 The Panel also considered that it could not take into a ccount in its 
analysis under Article 6.2 specific instances of recognition or non -recognition of the concepts of 
pest- or disease -free areas and areas of low pest or disease prevalence. The Panel explained that, 
if it did take into consideration specific i nstances of recognition or non -recognition of the concepts 
of pest - or disease -free areas and areas of low pest or disease prevalence, it would be examining a 
crucial element of the assessment under Article  6.1 – i.e. whether Russia calibrated the measures  
at issue to the existence or not of ASF -free areas within the European Union – through the lens of 
Article  6.2. For the Panel, this would reduce parts of Article  6 of the SPS  Agreement to redundancy 
and inutility  and thus be incompatible with the principl e of effective treaty interpretation .365 
5.135.   We have set out in paragraphs 5.119 -5.129  above our interpretation  of Article 6.2 of the 
SPS Agreement. We consider that Articl e 6.2 elaborates on a specific aspect of the overarching 
obligation in Article 6.1 that Members shall ensure that their SPS measures are "adapted" to the 
SPS characteristics of the areas from which the product originated and to which the product is 
destine d.366 Furthermore, we consider that the obligation in Article  6.2 must be seen in light of the 
fact that Article 6.3 envisages that the exporting Member may make the claim that areas within its 
territory are pest - or disease -free or of low pest or disease pr evalence, and in light of the ongoing 
nature of the obligation to adapt SPS measures to regional conditions. We have concluded that 
Article 6.2 requires the importing Member to provide an effective opportunity for the exporting 
Member to make the claim, ad dressed to the importing Member, that areas within its territory are 
pest- or disease -free or of low pest or disease prevalence, by maintaining a practice of, or a 
process for, receiving such claims from an exporting Member affected by a specific SPS measu re, 
and thus render operational the concept of regionalization. Accordingly, we disagree with the Panel 
that the obligation in Article  6.2 is separate from and "less exigent" or "less stringent" than that of 
Article  6.1, and that it requires merely an ackn owledgement of the concept of regionalization in 
the form of "abstract ideas".  
5.136.   Moreover, we consider that the Panel erred in finding itself precluded from taking into 
account in its analysis under Article 6.2 specific instances of recognition or non -recogn ition of the 
concepts of pest - or disease -free areas and areas of low pest or disease prevalence because this 
would be incompatible with the principle of effective treaty interpretation. As explained above, 
Article  6.2 and Article  6.1 do not set out separa te, unrelated obligations. Rather, as the 
Appellate  Body clarified in India – Agricultural Products , there are common elements throughout 
Article  6, which reveal the interlinkages that exist among the paragraphs of that Article.367 
Because Article  6.2 elabor ates on one specific aspect of the overarching obligation in Article 6.1 
that Members ensure that their SPS  measures are adapted to regional conditions, the question of 
whether a Member recognizes the concepts of pest - or disease -free areas and areas of lo w pest or 
disease prevalence may be a relevant consideration under both Article  6.1 and Article  6.2. It 
follows from this that consideration of specific instances of recognition or non -recognition of the 
concepts of pest - or disease -free areas and areas of  low pest or disease prevalence may be 
relevant for the analys es under both Articles 6.1  and 6.2. Against this background, the concern 
                                               
361 Panel Report, para. 7.367 (referring to Appellate  Body Report, India – Agricultural Products , 
para. 5.136 ). 
362 Panel Report, paras.  7.369 and 7.371 (referring to Customs  Union Decision No. 317 (Panel Exhibit 
RUS-25.b); 2006 Memorandum (Panel Exhibit EU -61); and Veterinary certificate for E U exports to Russia 
(Panel  Exhibit  EU-52), fn  1)). 
363 Panel Report, para.  7.373.  
364 Panel Report, para.  7.373.  
365 Panel Report, paras.  7.377 -7.378.  
366 Appellate  Body Report, India – Agricultural Products , para.  5.141.  
367 Appellate  Body Report, India – Agricultural Products , para.  5.141.  WT/DS475/AB/R  
 
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 articulated by the Panel, and embraced by Russia on appeal, about an overlap in the analys es 
under Articles  6.1 and 6.2 s eems inapposite.  
5.137.   Furthermore, we have found above that recognizing the relevant concepts under 
Article  6.2 may be achieved through, individually or jointly: a provision in the regulatory 
framework; the very SPS measure at issue; and a practice of recogniz ing pest - or disease -free 
areas or areas of low pest or disease prevalence. All such elements may be relevant to the 
assessment of a Member's compliance with the obligation to recognize the relevant concepts 
pursuant to Article  6.2. Different elements may contribute to different degrees to the overall 
compliance by that Member with its obligation  to recognize the relevant concepts. Accordingly, we 
consider that a panel must take into account in its analysis all elements that may be relevant in a 
particular case and, on that basis, reach a conclusion as to whether, overall, the Member complies 
with the obligation to recognize the concepts of pest - or disease -free areas and areas of low pest 
or disease prevalence. We therefore consider that the Panel erred in finding that it could not take 
into account in its analysis under Article 6.2 specific instances of recognition or non -recognition of 
the concept of regionalization.  
5.138.   In sum, we disagree with the Panel that Article 6.2 sets out a less st ringent obligation as 
compared to Article 6.1  of the SPS Agreement , requiring merely an acknowledgement of the 
concept of regionalization in the form of "abstract ideas". We also consider that the Panel erred in 
deeming itself precluded from taking into account in its analys is under Article 6.2 specific instances 
of recognition or non -recognition of the concept of regionalization. Therefore, we reverse  the 
Panel's findings, in paragraphs 7.379, 7.485, and 8.1.d.iii, and i n paragraphs 7.925, 7.1029, 
and 8.1.e.vi of the Panel R eport, that Russia recognizes the concepts of pest - or disease -free areas 
and areas of low pest or disease prevalence in respect of ASF, and that , therefore , the EU -wide 
ban and the bans on the imports of the products at issue from Estonia, Latvia, Lithuan ia, and 
Poland, are not inconsistent with Russia's obligations under Article 6.2 of the SPS Agreement.  
5.139.   This brings us to the question of whether we can complete the legal analysis of whether 
Russia recognizes the concept of regionalization within the meani ng of the first sentence of 
Article  6.2 of the SPS  Agreement. The European  Union requests us to complete the legal analysis 
and find that Russia fails to recognize the concepts of pest - or disease -free areas and areas of low 
pest or disease prevalence, and  that therefore the EU -wide ban and country -specific bans on the 
importation of the products at issue are inconsistent with Russia's obligation under Article  6.2.368 
In this regard, the European Union refers to findings made by the Panel in its analysis unde r 
Article  2.3 of the SPS Agreement , and asserts that, a ccording to those findings, neither on the face 
of the measures at issue nor in their application does Russia recognize the concept of 
regionalization.369 
5.140.   In response, Russia requests that, in the event that we reverse the Panel's findings under 
Article 6.2, we complete the legal analysis and find that Russia recognizes the concept of 
regionalization.370 Russia refers to several letters sent by its authorities to the European  Union 
explaining its "regionali zation" requirements and requesting proof that the areas claimed by the 
European Union to be ASF -free were in fact ASF -free, and submits that these letters demonstrate 
that Russia recognizes the concept of regionalization.371 
5.141.   At the outset, we note that the Appellate  Body has completed the legal analysis with a 
view to facilitating the prompt settlement and effective resolution of the dispute when sufficient 
factual findings by the panel or undisputed facts on the panel record allowed it to do so.372 
However, t he Appellate  Body has declined to complete the legal analysis where doing so would 
                                               
368 European  Union's other appellant's submission, para.  50. 
369 In particular, the European Union refers to findings made by the Panel in paragraphs 7.1357 -7.1360 
of the Panel Report.  (European Union's other appellant's submission, para. 47)  
370 Russia's appellee's submission, para.  80. See also para. 82.  
371 Russia's appellee's submission, paras.  82-89. 
372 See e.g.  Appellate  Body Reports, US – Gasoline , p. 19, DSR 1996:I, p. 18; Canada – Periodicals , 
p. 24, DSR 1997:I, p. 469; EC – Hormones , para. 222; EC – Poultry , para. 156; US – Shrimp , paras. 123 -124; 
Australia – Salmon , paras. 117 -118; Japan – Agricultural Products II , para.  112; US – FSC, para. 133;  
US – Lamb , paras. 150 and 172; US – Section  211 Appropriations Act , para. 352; EC and certain member 
States – Large Civil Aircraft , paras.  1174-1178; and US – Large Civil Aircraft (2nd complaint) , 
paras.  1272-1274.  WT/DS475/AB/R  
 
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 involve addressing claims that the panel had not examined at all373, particularly where, at the 
appellate review stage, the participants did not sufficiently address the issue s the Appellate  Body 
would have needed to resolve in order to complete the legal analysis, including the probative value 
of the evidence not considered by the panel.374 
5.142.   Turning to the request at issue that we complete the legal analysis with respect to the 
European Union's claim under Article 6.2, we recall that, in principle, compliance with the 
obligation of Article 6.2 may be achieved  through , individually or jointly: a provision in the 
regulatory framework; the very SPS measure at issue; and a practice of  recognizing pest - or 
disease -free areas and areas of low pest or disease prevalence. A panel must take into account in 
its analysis all elements that may be relevant in a particular case and, on that basis, reach a 
conclusion as to whether, overall, the M ember complies with Article 6.2. Furthermore, we recall 
that the obligation in Article 6.2 must also be seen in light of the fact that Article 6.3 envisages 
that the exporting Member may make the claim that areas within its territory are pest - or 
disease -free or of low pest or disease prevalence, and in light of the ongoing nature of the 
obligation to adapt SPS measures to regional conditions. On this basis, we have concluded that 
Article 6.2 requires the importing Member to provide an effective opportunity  for the exporting 
Member to make the claim, addressed to the importing Member, that areas within its territory are 
pest- or disease -free or of low pest or disease prevalence, by maintaining a practice of, or a 
process for, receiving such claims from an ex porting Member affected by a specific SPS  measure. 
Accordingly, we have found that Article 6.2 requires Members to render operational the concepts 
of pest - or disease -free areas and areas of low pest or disease prevalence.  
5.143.   With these considerations in min d, and in order to complete the legal analysis, we turn to 
assess whether there are sufficient findings by the Panel and undisputed evidence on the Panel 
record to allow us to determine whether or not Russia recognizes the concepts of pest - or 
disease-free areas and areas of low pest or disease prevalence. We begin by noting that, in order 
to determine whether Russia complies with the obligation to recognize these concepts, the Panel 
considered several aspects of Customs Union Decision No. 317. In particula r, the Panel noted that 
this Decision states:  
"Regionalisation" is the determination of the well -being or otherwise of a country or its 
administrative territory (republic, region, district, land, county, state, province, etc.) 
in terms of the contagious a nimal diseases included in the list of dangerous and 
quarantinable diseases of the Party, and in the control entities of third countries – in 
terms of the diseases referred to in these Requirements.375  
The Panel noted that the same legal instrument also sta tes: "Regionalization is carried out in 
accordance with the recommendations of the World Organization for Animal Health [OIE]".376 
5.144.   With respect to the definition of the term "regionalization" contained in Customs Union 
Decision No. 317, we note that it refle cts the fact that a pest or disease may be limited to a certain 
area. In particular, it refers to "republic, region, district, land, county, state, and province". The 
definition itself, however, provides no effective opportunity for the European Union to m ake the 
claim, addressed to Russia, that areas within the European Union are pest - or disease -free or of 
low pest or disease prevalence. Thus it does not render operational the concepts of pest - or 
disease -free areas and areas of low pest or disease preval ence.  
5.145.   The Panel further found that Customs  Union Decision No. 317 states that "Regionalization 
is carried out in accordance with the recommendations of the World Organization for Animal Health 
[OIE]".377 This raises the question of whether, on the basis of t hese recommendations, an 
exporting Member has an effective opportunity to make the claim that areas within its territory are 
pest- or disease -free or of low pest or disease prevalence. Because the Panel had found that 
                                               
373 Appellate Body Reports, EC – Poultry , para. 107; EC – Asbestos , paras. 79 and 82; US – Section 211 
Appropriations Act , para. 343; EC – Export Subsidies on Sugar , para. 337.  
374 See e.g. Appellate  Body Report, Japan – DRAMs (Korea) , para.  142. 
375 Panel Report, para.  7.369 (quoting Cus toms Union Decision No. 317 (Panel Exhibit RUS -25.b), 
"Terms used in the Common Veterinary (Veterinary and Health) Requirements", p. 1).  
376 Panel Report, para.  7.369 (quoting Customs Union Decision No. 317 (Panel Exhibit RUS -25.b), 
"Terms used in the Common  Veterinary (Veterinary and Health) Requirements", p. 1).  
377 Panel Report, para.  7.369 (quoting Customs Union Decision No. 317, "Terms used in the Common 
Veterinary (Veterinary and Health) Requirements", p. 1).  WT/DS475/AB/R  
 
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 Article 6.2 merely requires the acknow ledgement of regionalization in the form of "abstract 
ideas"378, the Panel did not explore to what extent the OIE recommendations referred to in 
Customs  Union Decision No. 317 or other legal instruments provide an effective opportunity for the 
European Union  to make the claim that certain areas within the E uropean Union are pest - or 
disease -free or of low pest or disease prevalence, thus render ing operational the concepts of  
pest- or disease -free areas and areas of low pest or disease prevalence.  
5.146.   We note tha t Customs Union Decision No. 317 refers to the recommendations of the OIE 
generally, without identifying any specific recommendations. We consider that this reference may 
be directed at Section 4, "General Recommendations: Disease Prevention and Control", of the 
Terrestrial  Code. In particular, Chapter 4.3 is concerned with "Zoning and Compartmentalisation". 
Be that as it may, we note that the recommendations in Section 4 of the Terrestrial Code are 
directed at OIE member countries and envisage that when OI E member countries adopt 
SPS measures, they do so in accordance with such recommendations. However, the 
OIE recommendations themselves provide no effective opportunity for the European Union  to 
make the claim, addressed to Russia , that areas within the Eur opean Union  are pest - or 
disease -free or of low pest or disease prevalence, and thus do not  render operational the concept 
of regionalization.  
5.147.   Furthermore, we note that the Panel found that Customs Union Decision No. 317 
comprises chapters containing vete rinary requirements applicable to imports of a number of 
product s into the Customs  Union territory. In particular, the Panel noted that Chapter 7 provides 
that:  
[t]he import into the customs territory of the Customs Union and/or the transfer 
between Parti es of healthy breeding and commercial pigs originating from territories 
free from the following contagious animal diseases shall be permitted … [including] 
African swine fever – during the last 36 months in the territory of the country or 
administrative te rritory in accordance with regionalization .379  
The Panel also considered relevant that all the chapters that refer to the products at issue in this 
dispute include reference to the "ASF situation necessary for accepting imports of the respective 
products " and to "the territory of the country or administrative territory ".380  
5.148.   We note the Panel's finding that these elements of Customs Union Decision No. 317 refer 
to the concept of regionalization. However, we do not see that these elements of Customs Union 
Decis ion No. 317 provide an effective opportunity for the European Union  to make the claim, 
addressed to Russia , that areas within the European Union  are pest - or disease -free or of low pest 
or disease prevalence. At the same time, we are cognizant of the fact that, because the Panel had 
found that Russia complies with the obligation of Article 6.2 by acknowledging regionalization in 
the form of "abstract ideas"381, the Panel did not further explore whether or to what extent 
Russia's regulatory framework provide s an effective opportunity for the European Union to make 
the claim that certain areas within the  European Union  are pest - or disease -free or of low pest or 
disease prevalence, thus render ing operational the concepts of pest - or disease -free areas and 
areas of low pest or disease prevalence.  
5.149.   Given the absence of Panel findings as to whether elements of Russia's regulatory 
framework other than Customs Union Decision No. 317 recognize the concept of regionalization, 
we must proceed to assess specific instances of application of this concept in order to determine 
whether or not Russia is in compliance with its obligation under Article 6.2. The Panel made no 
findings with respect to instances of application of the concepts of pest - or disease -free areas and 
areas of low pest or disease prevalence concerning legal instrume nts other than the specific 
SPS measures at issue. However, the Panel made a number of findings with respect to the specific 
SPS measures at issue in the context of its analysis under Article 2.3  of the SPS Agreement . In 
particular, the Panel found that "[n]one of the measures at issue contains any explicit indication 
                                               
378 Panel Report, para . 7.373.  
379 Panel Report, p ara. 7.370 (quoting Customs Union Decision No. 317 (Panel Exhibit RUS -25.b), 
Chapter  7). 
380 Panel Report, para.  7.370 (quoting Customs Union Decision No. 317 (Panel Exhibit RUS -25.b), 
Chapter  7). (emphasis added by the Panel)  
381 Panel Report, para . 7.373.  WT/DS475/AB/R  
 
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 that there is a possibility to recognize ASF -free zones or compartments from the territory of the 
European  Union."382 The Panel also fo und that the same holds true in respect of the application  of 
both the EU -wide ban and the country -specific bans.383 On the basis of these findings by the Panel, 
we consider that the SPS  measures at issue provide no effective opportunity for the 
European  Union to make the claim, addressed to Russia, that areas within the European Union are 
pest- or disease -free or of l ow pest or disease prevalence. These measures thus do not  render 
operational the concepts of pest - or disease -free areas and areas of low pest or disease 
prevalence.  
5.150.   Finally, we have found above that compliance with the obligation in Article 6.2 does not 
necessarily require the recognition of the concepts of pest- or disease -free areas and areas of low 
pest or disease prevalence in the regulatory  framework or in a specific SPS measure, but that it 
may also be demonstrated on the basis of an importing Member's practice of providing an effective 
opportunity for the exporting Member to make the claim, addressed to the importing Member, that 
areas wit hin its territory are pest - or disease -free or of low pest or disease prevalence, thus 
rendering operational the concept of regionalization. However, because the Panel had found that 
Russia complies with the obligation in Article 6.2 by acknowledging regio nalization in the form of 
"abstract ideas"384, the Panel did not explore whether or to what extent Russia's administrative 
practice with respect to SPS matters provided an effective opportunity for the European Union to 
make the claim that certain areas with in the European Union  are pest - or disease -free or of low 
pest or disease prevalence, thus render ing operational the concept of regionalization.  
5.151.   In light of the above considerations, we note that the Panel's findings with respect to 
Customs Union Decision No. 317 and with respect to the specific SPS measures at issue suggest 
that Russia fails to provide an effective opportunity for the European Union to make the claim that 
areas within its territory are ASF -free, and thus fails to render operational the con cept of 
regionalization. At the same time, we note that, because the Panel had found that Russia complies 
with the obligation in Article 6.2 by acknowledging the concept of regionalization as an "abstract 
idea"385, and because the Panel erroneously considere d itself to be precluded from taking into 
account specific instances of recognition of the concept of regionalization by Russia, the Panel did 
not explore whether or to what extent Russia otherwise recognizes the concepts of pest - or 
disease -free areas and  areas of low pest or disease prevalence in respect of ASF. In particular, the 
Panel made no findings with respect to the recognition of the concept of regionalization with 
respect to ASF in instruments of Russia's regulatory framework other than Customs U nion Decision 
No. 317. In addition, because the Panel considered itself precluded from taking into account 
specific SPS measures, it neither explored specific instances of recognition, nor was it in a position 
to determine whether there was an administrati ve practice in Russia in respect of the recognition 
of the concept of regionalization.  
5.152.   In sum, we note that, while the considerations relating to Customs Union Decision No. 317 
and the Panel findings regarding the SPS measures at issue suggest that Russia  fails to recognize 
the concepts of pest - or disease -free areas and areas of low pest or disease prevalence with 
respect to ASF, we lack findings by the Panel as to whether or not other elements of Russia's 
regulatory framework relating to SPS matters, as well as Russia's administrative practice, suggest 
that Russia recognizes these concepts. We are therefore not in a position to complete the legal 
analysis and determine, based on findings by the Panel or undisputed evidence before the Panel, 
whether or not  Russia recognizes the concepts of pest - or disease -free areas and areas of low pest 
or disease prevalence in respect of ASF.  
5.3.3.4   Conclusion  on the European Union's claim under Article 6.2  of the 
SPS Agreement  
5.153.   With respect to the European Union's claim that th e Panel erred in finding that Russia 
recognizes the concepts of pest - or disease -free areas and areas of low pest or disease prevalence 
in respect of ASF pursuant to Article  6.2 of the SPS Agreement, we consider that Article 6.2 
                                               
382 Panel Report, para.  7.1358. Furthermore, the Panel found that, while the measures on Estonia, 
Latvia, Lithuania, and Poland impose a "temporary restriction" on imports of the products at issue, they do not 
explicitly provide for potential regionalization in the European Union. (Ibid., para.  7.1359)  
383 Panel Report, para.  7.1360.  
384 Panel Report, para. 7.373.  
385 Panel Report, para. 7.373.  WT/DS475/AB/R  
 
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 requires the importing Memb er to provide an effective opportunity for the exporting Member to 
make the claim, addressed to the importing Member, that areas within its territory are pest - or 
disease -free or of low pest or disease prevalence, by maintaining a practice of, or a process  for, 
receiving such a claim from an exporting Member affected by a specific SPS measure, and thus to 
render operational the concept of regionalization. This may be achieved through, individually or 
jointly: a provision in the regulatory framework; the ver y SPS measure at issue; and a practice of 
recognizing pest - or disease -free areas or areas of low pest or disease prevalence. All these 
elements may be relevant in the assessment of a Member's compliance with the obligation under 
Article  6.2. As each eleme nt may contribute to a different degree to the overall compliance by that  
Member with its obligation to recognize the concepts of pest - or disease -free areas and areas of 
low pest or disease prevalence, the focus of a panel's analysis will depend on the ci rcumstances of 
the case and the particular instruments at issue. We disagree with t he Panel's finding that 
Article  6.2 requires merely an acknowledgement of the concept of regionalization in the form of 
"abstract ideas". We also consider that the Panel err ed in deeming itself precluded from taking into 
account in its analysis under Article 6.2 specific instances of recognition or non -recognition of the 
concept of regionalization . 
6  FINDINGS AND CONCLUS IONS  
6.1.  For the reasons  set out in this Report, the Appellate  Body makes the following findings and 
conclusions.  
6.1  Claims relating to the attribution of the EU -wide ban  
6.2.  We consider that the measure that the Panel attributed to Russia was not the condition in the 
bilateral veterinary certificates of EU -wide freedom fro m ASF over a three -year period but , rather , 
Russia's decision to deny the importation of the products at issue, i.e. the EU -wide ban. Russia 
does not dispute that it banned the importation of the products at issue, and the fact that the 
basis for doing so may not have been set out in Russian law does not alter the conclusion that the 
EU-wide ban is attributable to Russia.  
6.3.  Moreover, the Panel was not barred from reviewing the WTO -consistency of the EU -wide ban 
due to commitments set out in Russia's terms of accession to the WTO. Given the ongoing nature 
of the obligation under Article  6 of the SPS Agreement  and the requirement  that SPS measures be 
adjusted over time to ensure adaptation to regional SPS characteristics, the fact that a 
WTO Member has adapted i ts measures to the SPS characteristics of an area at a specific point in 
time may not ensure that such adaptation remains a dequate when the particular 
SPS characteristics of that area evolve. Irrespective of the commitment in Russia's terms of 
accession to  the WTO regarding which certificate would be operative in the conduct of certain trade 
to Russia from other WTO  Members, Russia remains under an ongoing obligation, pursuant to 
Article  6 of the SPS  Agreement, to adapt its measures to regional SPS  characte ristics.  
a. Consequently, we uphold  the Panel's finding, in paragraphs 7.84 and 8.1.a of the Panel 
Report, that the EU -wide ban is attributable to Russia.  
b. In addition, we uphold  the Panel's finding, in paragraphs  7.116 and 8.1.b of the Panel 
Report, that Russ ia's terms of accession to the WTO d id not limit the Panel's assessment 
of the European Union's claims regarding the EU -wide ban . 
6.2  Claims relating to Article 6 of the SPS Agreement  
6.4.  With respect to Russia's claims on appeal that the Panel erred in its interp retation of 
Article  6.3 of the SPS Agreement, we consider that the proces s of adaptation to regional 
SPS characteristics pursuant to Article 6 requires that the importing Member evaluate all the 
relevant evidence concerning the areas that an exporting Memb er claims are pest - or disease -free 
or of low pest or disease prevalence. This evaluation is addressed by the second sentences of 
Articles 6.1 and 6.2  of the SPS Agreement , as it relates to the importing Member's determination 
of the pest or disease status  of the areas concerned and its assessment of their 
SPS characteristics, with a view to adapting its measures accordingly. Similarly, the period of time 
that the importing Member may take to conduct its evaluation and t o adapt its measures to the 
SPS chara cteristics of the relevant areas is covered by Article 6.1 and the second sentence of WT/DS475/AB/R  
 
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 Article 6.2, as informed by Article 8 and Annex  C(1)(a) to the SPS Agreement. By contrast, neither 
the importing Member's evaluation of the relevant evidence nor the peri od of time required to 
carry out this evaluation are covered by Article 6.3, which addresses the duties that apply to the 
exporting  Member in connection with the process set out in Article 6.  A panel's review under 
Article  6.3 is limited to assessing wheth er the evidence provided by the exporting Member to the 
importing Member is of a nature, quantity, and quality sufficient to enable the importing Member's 
authorities ultimately to make a determination as to the pest or disease status of the areas that 
the exporting Member claims to be pest - or disease -free or of low pest or disease prevalence.  
6.5.  Consequently, we find that the Panel did not err in its interpretation of Article 6.3 of the 
SPS Agreement by not finding that this provision requires consideration of the evidence relied 
upon by the importing Member. In addition, we find that the Panel did not err in its interpretation 
of Article  6.3 of the SPS Agreement by not finding that this provision contemplates a certain period 
of time for the importing Member  to evaluate and verify the evidence provided by the exporting 
Member.  
a. Therefore, we uphold  the Panel's findings, in paragraphs 7.456, 7.963, and 7.1004 of 
the Panel Report, that, as at 11 September 2014, the European  Union had provided the 
necessary evide nce to objectively demonstrate to Russia that: (i) areas within Estonia, 
Latvia, Lithuania,  and Poland, as well as areas within the European  Union outside of the 
four affected member States, were  ASF-free; and (ii) the ASF -free areas within Estonia, 
Lithua nia, and Poland, as well as the ASF -free areas within the European  Union outside 
of the four affected member States, were likely to remain so .  
b. We also uphold  the Panel's conclusions contained in para graphs 8.1.d.iv, 8.1.e.vii, 
and 8.1.e.viii of the Panel Report, which we understand as follows:  
i. in the period between 7 February 2014 and 11 September 2014, the European  Union 
had provided the necessary evidence to objectively demonstrate to Russia, pur suant 
to Article 6.3 of the SPS Agreement, that there were areas within the 
European  Union, outside of Estonia, Latvia, Lithuania,  and Poland, which were free of 
ASF and were likely to remain so;  
ii. at least as at 11 September 2014, the European  Union had provided the necessary 
evidence to objectively demonstrate to Russia, pursuant to Article  6.3 of the 
SPS Agreement, that there were areas within Estonia, Latvia, Lithuania,  and Poland 
that were free of ASF;  
iii. at least as at 11 September 2014, the European  Union had provided the necessary 
evidence to objectively demonst rate to Russia, pursuant to Article  6.3 of the 
SPS Agreement, that the ASF -free areas within Estonia, Lithuania,  and Poland were 
likely to remain so; however, the European  Union failed to provide the necessary 
evidence to objectively demonstrate to Russia,  pursuant to Article  6.3 of the 
SPS Agreement, that the ASF -free areas within Latvia were likely to remain so.  
6.6.  With respect to Russia's claim on appeal that the Panel erred in its interpretation of the 
relationship between Article 6.1 and Article 6.3 of th e SPS Agreement, we consider that an 
exporting Member's failure to provide the necessary evidence to objectively demonstrate that 
areas within its territory are pest - or disease -free or of low pest or disease prevalence will, in 
many cases, have implicatio ns for the importing Member's ability to assess the SPS characteristics 
of such areas and to adapt its measures accordingly. A panel may, in certain specific situations 
such as those identified by the Appellate Body in India – Agricultural Products , find t hat an 
importing Member failed to comply with Article 6.1 irrespective of the exporting Member's 
compliance or non-compliance with Article 6.3. However, the panel should provide reasoning 
explaining why the circumstances of the dispute fall within one or m ore of those specific situations, 
or why they otherwise warrant a finding that the importing Member acted inconsistently with 
Article  6.1. The Panel in this dispute did not provide such reasoning.  
6.7.  Consequently, we find that the Panel erred , in paragraph 7 .1028 of the Panel Report,  in 
finding that Russia had failed to adapt its measure to the ASF -free areas within Latvia  and thereby 
acted inconsistently with Article  6.1.