WT/DS475/R/Add.1  
 
19 August  2016 
(16-4445) Page: 1/89 
  Original: English  
 
  RUSSIAN FEDERATION – MEASURES ON THE IMPO RTATION OF LIVE 
PIGS, PORK AND OTHER  PIG PRODUCTS FROM TH E EUROPEAN UNION  
REPORT OF THE PANEL  
Addendum  
This addendum  contains Annexes A to C to the Report of the Panel to be found in document  
WT/DS475/R . 
 
 
_________ ______  
 
 WT/DS475/R/Add.1  
 
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  LIST OF ANNEXES  
ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additio nal Working Procedures concerning strictly confidential information (SCI)  A-7 
Annex  A-3 Additional Working Proc edures for Panel's expert consultation  A-9 
ANNEX B  
ARGUMENTS OF THE PAR TIES 
EUROPEAN UNION  
Contents  Page  
Annex  B-1 First part of the i ntegrated executive summary of the arguments of  the 
European  Union  B-2 
Annex  B-2 Second part of the i ntegrated executiv e summary of the arguments of  the 
European Union  B-17 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  B-3 First part of the i ntegrated executive summary of the arguments of the 
Russian  Federation  B-33 
Annex  B-4 Second part of the i ntegrated executive summary of  the arguments of the 
Russian Federation  B-44 
ANNEX  C 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive summary o f the arguments of Australia  C-2 
Annex  C-2 Integrated execut ive summary of the arguments of Brazil  C-4 
Annex  C-3 Integrated execut ive summary of the arguments of India  C-8 
Annex  C-4 Integrated executive summary of the arguments of Japan  C-11 
Annex  C-5 Integrated execut ive summary of the arguments of Norway  C-13 
Annex  C-6 Integrated executive summary of the argumen ts of the United States  C-17 
 
 
 WT/DS475/R/Add.1  
 
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  ANNEX  A 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  A-1 Working Procedures of the Panel  A-2 
Annex  A-2 Additio nal Working Procedures concerning strictly confidential information (SCI)  A-7 
Annex  A-3 Additional Wor king Procedures for Panel's expert consultation  A-9 
 WT/DS475/R/Add.1  
 
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  ANNEX  A-1 
WORKING PROCEDURES O F THE PANEL  
Version as a dopted on 6 January  2015 
1. In its proceedings, the Panel shall follow the relevant provisions of the Understanding on 
Rules and Procedures Governing t he Settlement of Disputes (DSU). In addition, the following 
Working Procedures shall apply.  
General  
 
2. The deliberations of the Panel and the documents submitted to it shall be kept confidential. 
Nothing in the DSU or in these Working Procedures shall preclu de a party to the dispute (hereafter 
"party") from disclosing statements of its own positions to the public. Members shall treat as 
confidential information submitted to the Panel by another Member which the submitting Member 
has designated as confidential . Where a party submits a confidential version of its written 
submissions to the Panel, it shall also, upon request of a Member, provide a non -confidential 
summary of the information contained in its submissions that could be disclosed to the public.  
3. Upon indication from any party, at the latest on the first substantive meeting, that it shall 
provide information that requires protection additional to that provided for under these Working 
Procedures, the Panel shall, after consultation with the parties, dec ide whether to adopt 
appropriate additional procedures. Exceptions to this procedure shall be granted upon a showing of 
good cause.  
4. The Panel shall meet in closed session. The parties, and Members having notified their 
interest in the dispute to the Dispu te Settlement Body in accordance with Article 10 of the DSU 
(hereafter "third parties"), shall be present at the meetings only when invited by the Panel to 
appear before  it.  
5. Each party and third party has the right to determine the composition of its own delegation 
when meeting with the Panel. Each party and third party shall have the responsibility for all 
members of its own delegation and shall ensure that each member of such delegation acts in 
accordance with the DSU and these Working Procedures, partic ularly with regard to the 
confidentiality of the proceedings.  
Submissions  
 
6. Before the first substantive meeting of the Panel with the parties, each party shall submit a 
written submission in which it presents the facts of the case and its arguments, in ac cordance with 
the timetable adopted by the Panel. Each party shall also submit to the Panel, prior to the second 
substantive meeting of the Panel, a written rebuttal, in accordance with the timetable adopted by 
the Panel.  
7. A party shall submit any request for a preliminary ruling at the earliest possible 
opportunity and in any event no later than in its first written submission to the Panel. If the 
European Union requests such a ruling, the Russian Federation shall submit its response to the 
request in its first written submission. If the Russian Federation requests such a ruling, the 
European Union shall submit its response to the request prior to the first substantive meeting of 
the Panel, at a time to be determined by the Panel in light of the request. Ex ceptions to this 
procedure shall be granted upon a showing of good cause.  
8. Each party shall submit all factual evidence to the Panel no later than during the first 
substantive meeting, except with respect to evidence necessary for purposes of rebuttal, answ ers 
to questions or comments on answers provided by the other party. Exceptions to this procedure 
shall be granted upon a showing of good cause. Where such exception has been granted, the Panel WT/DS475/R/Add.1  
 
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  shall accord the other party a period of time for comment, as appropriate, on any new factual 
evidence submitted after the first substantive meeting.  
9. Where the original language of exhibits is not a WTO working language, the submitting 
party or third party shall submit a translation into the WTO working language of the submission at 
the same time. The Panel may grant reasonable extensions of time for the translation of such 
exhibits upon a showing of good cause. Any objection as to the accuracy of a translation should be 
raised promptly in writing, no later than the next filing or meeting (whichever occurs earlier) 
following the submission which contains the translation in question. Any objection shall be 
accompanied by a detailed explanation of the grounds of objection and an alternative translation. 
Thereafter, the Panel will rule as promptly as possible on any objection to the accuracy of a 
translation.  
10. In order to facilitate the work of the Panel, each party and third party is invited to make its 
submissions in accordance with the WTO Editorial Guide for Panel Subm issions attached as 
Annex  1, to the extent that it is practical to do so.  
11. To facilitate the maintenance of the record of the dispute and maximize the clarity of 
submissions, each party and third party shall sequentially number its exhibits throughout the 
course of the dispute. For example, exhibits submitted by the European Union could be numbered 
EU-1, EU -2, etc. If the last exhibit in connection with the first submission was numbered EU -5, the 
first exhibit of the next submission thus would be numbered E U-6. 
Questions  
 
12. The Panel may at any time pose questions to the parties and third parties, orally or in 
writing, including prior to each substantive meeting.   
Substantive meetings  
 
13. Each party shall provide to the Panel the list of members of its delegati on in advance of 
each meeting with the Panel and no later than 5.00  p.m. the previous working day.  
14. The first substantive meeting of the Panel with the parties shall be conducted as follows:  
a. The Panel shall invite the European Union to make an opening stat ement to present its 
case first. Subsequently, the Panel shall invite the Russian Federation to present its point 
of view. Before each party takes the floor, it shall provide the Panel and other 
participants at the meeting with a provisional written versio n of its statement. In the 
event that interpretation is needed, each party shall provide additional copies to the 
interpreters. Each party shall make available to the Panel and the other party the final 
version of its statement, preferably at the end of th e meeting, and in any event no later 
than 5.00  p.m. on the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask each other questions or make comments, through the Panel. Eac h party shall have 
an opportunity to orally answer these questions. Each party shall send in writing, within 
a timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall b e invited to respond in writing 
to the other party's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be determined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by th e Panel.  
d. Once the questioning has concluded, the Panel shall afford each party an opportunity to 
present a brief closing statement, with the European Union presenting its statement 
first.  WT/DS475/R/Add.1  
 
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  e. The Panel may, after consultation with the parties, set time limits  for the opening 
statements; such time limits would be informed to the parties before the first 
substantive meeting.  
15. The second substantive meeting of the Panel with the parties shall be conducted as 
follows:  
a. The Panel shall ask the Russian Federation if i t wishes to avail itself of the right to 
present its case first. If so, the Panel shall invite the Russian Federation to present its 
opening statement, followed by the European Union. If the Russian Federation chooses 
not to avail itself of that right, the  Panel shall invite the European Union to present its 
opening statement first. Before each party takes the floor, it shall provide the Panel and 
other participants at the meeting with a provisional written version of its statement. In 
the event that interp retation is needed, each party shall provide additional copies to the 
interpreters. Each party shall make available to the Panel and the other party the final 
version of its statement, preferably at the end of the meeting, and in any event no later 
than 5. 00 p.m. of the first working day following the meeting.  
b. After the conclusion of the statements, the Panel shall give each party the opportunity to 
ask questions or make  comments, through the Panel. Each party shall then have an 
opportunity to answer these questions orally. Each party shall send in writing, within a 
timeframe to be determined by the Panel, any questions to the other party to which it 
wishes to receive a response in writing. Each party shall be invited to respond in writing 
to the other party 's questions within a deadline to be determined by the Panel.  
c. The Panel may subsequently pose questions to the parties. Each party shall then have an 
opportunity to answer these questions orally. The Panel shall send in writing, within a 
timeframe to be de termined by it, any questions to the parties to which it wishes to 
receive a response in writing. Each party shall be invited to respond in writing to such 
questions within a deadline to be determined by the Panel.  
d. Once the questioning has concluded, the P anel shall afford each party an opportunity to 
present a brief closing statement, with the party that presented its opening statement 
first, presenting its closing statement first.  
Third parties  
 
16. The Panel shall invite each third party to transmit to the Panel a written submission prior 
to the first substantive meeting of the Panel with the parties, in accordance with the timetable 
adopted by the Panel.  
17. Each third party shall also be invited to present its views orally during a session of this first 
subst antive meeting, set aside for that purpose. Each third party shall provide to the Panel the list 
of members of its delegation in advance of this session and no later than 5.00  p.m. the previous 
working day.  
18. The third -party session shall be conducted as fo llows:  
a. All third parties may be present during the entirety of this session.  
b. The Panel shall first hear the arguments of the third parties in alphabetical order. Third 
parties present at the third -party session and intending to present their views orally at 
that session, shall provide the Panel, the parties and other third parties with provisional 
written versions of their statements before they take the floor.  In the event that 
interpretation is needed, each third party shall provide additional copies to the 
interpreters. Third parties shall make available to the Panel, the parties and other third 
parties the final versions of their statements, preferably at the end of the session, and in 
any event no later than 5.00  p.m. of the first working day following  the session.  
c. After the third parties have made their statements, the parties may be given the 
opportunity, through the Panel, to ask the third parties questions for clarification on any WT/DS475/R/Add.1  
 
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  matter raised in the third parties' submissions or statements. Each party shall send in 
writing, within a timeframe to be determined by the Panel, any questions to a third party 
to which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to these questions within a deadline to be determined by the Panel.  
d. The Panel may subsequently pose questions to the third parties. Each third party shall 
then have an opportunity to answer these questions orally. The Panel shall send in 
writing, within a timeframe to be determined by it, any  questions to the third parties to 
which it wishes to receive a response in writing. Each third party shall be invited to 
respond in writing to such questions within a deadline to be determined by the Panel.  
Descriptive part  
 
19. The description of the argumen ts of the parties and third parties in the descriptive part of 
the Panel report shall consist of the executive summaries provided by the parties and third parties, 
which shall be annexed as addenda to the report. These executive summaries shall not in any way 
serve as a substitute for the submissions of the parties and third parties in the Panel's examination 
of the case.  
20. Each party shall submit executive summaries of the facts and arguments as presented to 
the Panel in its written submissions and oral stat ements, in accordance with the timetable adopted 
by the Panel. These summaries may also include a summary of responses to questions. Each such 
executive summary shall not exceed 15 pages. The Panel will not summarize in the descriptive 
part of its report, or annex to its report, the parties' responses to questions.  
21. Each third party shall submit an executive summary of its arguments as presented in its 
written submission and statement in accordance with the timetable adopted by the Panel. This 
summary may al so include a summary of responses to questions, where relevant. The executive 
summary to be provided by each third party shall not exceed 6  pages.  
Interim review  
 
22. Following issuance of the interim report, each party may submit a written request to 
review p recise aspects of the interim report and request a further meeting with the Panel, in 
accordance with the timetable adopted by the Panel. The right to request such a meeting shall be 
exercised no later than at the time the written request for review is sub mitted.  
23. In the event that no further meeting with the Panel is requested, each party may submit 
written comments on the other party's written request for review, in accordance with the timetable 
adopted by the Panel. Such comments shall be limited to comm enting on the other party's written 
request for review.  
24. The interim report, as well as the final report prior to its official circulation, shall be kept 
strictly confidential and shall not be disclosed.  
Service of documents  
 
25. The following  procedures regar ding service of documents shall apply:  
a. Each party and third party shall submit all documents to the Panel by filing them with 
the DS  Registry (office No. 2047).  
b. Each party and third party shall file 3 paper copies of all documents it submits to the 
Panel.  Exhibits may be filed in 3 copies on CD -ROM or DVD and 3 paper copies. The 
DS Registrar shall stamp the documents with the date and time of the filing. The paper 
version shall constitute the official version for the purposes of the record of the dispute.  
c. Each party and third party shall also provide an electronic copy of all documents it 
submits to the Panel at the same time as the paper versions, preferably in Microsoft 
Word format, either on a CD -ROM, a DVD or as an e -mail attachment. If the electronic 
copy is provided by e -mail, it should be addressed to DSRegistry@wto.org , with a copy WT/DS475/R/Add.1  
 
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  to ****.****@wto.org , ****.****@wto.org , ****.****@wto.org , ****.****@wto.org , 
and ****.****@wto.org . If a CD -ROM or DVD is provided, it shall be filed with the 
DS Registry.  
d. Each party shall serve any document submitted to the Panel directly on the other party. 
Each party shall, in addition, serve on all third parties its written submissions in advance 
of the first substantive meeting with the Panel. Each third party shall se rve any 
document submitted to the Panel directly on the parties and all other third parties. Each 
party and third party shall confirm, in writing, that copies have been served as required 
at the time it provides each document to the Panel.  
e. Each party and t hird party shall file its documents with the DS Registry and serve copies 
on the other party (and third parties where appropriate) by 5.00  p.m. (Geneva time) on 
the due dates established by the Panel. A party or third party may submit its documents 
to anot her party or third party in electronic format only, subject to the recipient party or 
third party's prior written approval and provided that the Panel Secretary is notified.  
f. The Panel shall provide the parties with an electronic version of the descriptive part, the 
interim report and the final report, as well as of other documents as appropriate. When 
the Panel transmits to the parties or third parties both paper and electronic versions of a 
document, the paper version shall constitute the official version for the purposes of the 
record of the dispute.  
26. The Panel reserves  the right to modify these procedures as necessary, after consultation 
with the parties. The Panel will annex to its report these procedures.  
 
 WT/DS475/R/Add.1  
 
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  ANNEX A -2 
ADDITIONA L WORKING PROCEDURES  CONCER NING  STRICTL Y CONFIDENTIAL  
INFORMATION  
Adopted on 8 December 2014  
The following procedures apply to strictly confidential information (SCI) submitted in the course of 
the Panel proceedings.  
1. For the purposes of these proceedings, Strictly Confidential Infor mation (SCI) means  
information: (a) that is clearly designated as such by the party submitting it; (b) that is not 
otherwise accessible to the general public; and (c) that is commercially sensitive or, in the case of 
government confidential information,  the release of which could reasonably be considered to cause 
or threaten to cause harm to the public interest, including by impairing the ability of the 
government to conduct its work. Each party and third party shall act in good faith and exercise 
restrain t in designating information as SCI . The Panel shall have the right to intervene in any 
manner that it deems appropriate, if it is of the view that restraint in the designation of SCI is not 
being exercised.  
2. If a party, a third party, or the Panel, contes ts the designation of information as SCI, the 
party designating the information shall provide reasons for the designation within five (5) working 
days. After giving the other party an opportunity to comment on the justification provided within 
five (5) wor king days, the Panel shall decide on the designation of the information.  
3. As required by paragraph 3 of the Working Procedures of the Panel1, the deliberations of 
the Panel and the documents submitted to it shall be kept confidential.  Further, as required b y 
Article 18.2 of the DSU a party or third party having access to information designated as SCI 
submitted in these Panel proceedings shall treat it as confidential and shall not disclose that 
information other than to those persons authorized to receive it  pursuant to these additional 
working procedures. Each party and third party is responsible for ensuring that its employees, 
outside advisers and experts comply with these Additional Working Procedures to protect SCI. An 
outside advisor is not permitted ac cess to SCI if that advisor is an officer or employee of an 
enterprise engaged in the production, export, or import of the products that are subject of this 
dispute.  
4. Panel Members and employees of the WTO Secretariat assigned to the present dispute, 
includ ing translators and interpreters, shall have access to SCI submitted in these proceedings. 
Employees of the Governments of the Russian Federation and the European Union, as well as of 
the third parties, shall have access to SCI submitted in these Panel pro ceedings to the extent 
necessary for their involvement in their official capacity in DS475 proceedings. Subject to 
paragraph 3 of the Working Procedures of the Panel, parties and third parties may give access to 
SCI only to outside advisers and experts pro viding assistance to the parties in these proceedings 
and their clerical staff.  
5. On the request of either party, the Panel will review whether particular confidential 
information it has submitted is so sensitive that it should not be provided to the third parties, and 
taking into consideration the need for the third party to have access to the particular information.   
If the Panel finds such information to be particularly sensitive, it will direct the party submitting 
the information to provide a summary of  the contents of the redacted information that will be 
made available to the third parties.  
6. Each party and third party shall maintain a list of the names of all outside advisers and 
experts provided with access to SCI. The list shall be updated when additi onal outside advisers or 
experts are provided with access to SCI.  
                                               
1 Adopted on 8 December 2014  WT/DS475/R/Add.1  
 
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  7. A party or third party submitting or referring to SCI in any written submission (including in 
any exhibits) shall mark the cover and the first page of the document containing any such 
inform ation with the words "Contains Strictly Confidential Information". The specific information in 
question shall be enclosed in double brackets, as follows: [[xx.xxx.xx]], and the notation 
"Contains Strictly Confidential Information" shall be marked at the to p of each page containing the 
SCI. In the case of an oral statement containing SCI, the party or third party making such a 
statement shall inform the Panel before making it that the statement will contain SCI, and the 
Panel will ensure that only persons au thorized to have access to SCI pursuant to these Additional 
Working Procedures are in the room to hear that statement.  
8. Any SCI that is submitted in binary -encoded form shall be clearly marked with the 
statement "Strictly Confidential Information" on a lab el on the storage medium, and clearly 
marked with the statement "Strictly Confidential Information" in the binary -encoded files.  
9. The parties, third parties, the Panel, the WTO Secretariat, and any others permitted to 
have access to documents containing SCI  under the terms of these Additional Working Procedures 
shall store all documents containing SCI so as to prevent unauthorized access to such information.  
10. The Panel may include in its confidential interim report any information designated as SCI 
under thes e additional working procedures. However, the Panel will not disclose in its final report 
any information designated as SCI under these Additional Working Procedures. The Panel may, 
however, make statements of conclusion based on such information. Before t he Panel makes its 
final report publicly available, the Panel shall give each party or third party an opportunity to 
ensure that any information it has designated as SCI is not contained in the report.  
11. At the conclusion of the dispute2, and within a perio d to be fixed by the Panel, each party 
and third party shall either return all documents (including electronic material) containing SCI, 
submitted during the Panel proceedings, to the party that submitted such documents or certify in 
writing to the Panel a nd the other parties that all such documents have been destroyed, or 
otherwise protect the SCI against public disclosure, consistent with the party's obligations under 
its domestic laws. The WTO Secretariat shall have the right to retain one copy of each o f the 
documents containing SCI for the archives of the WTO.  
12. If a party formally notifies the DSB of its decision to appeal pursuant to Article 16.4 of the 
DSU, the Secretariat will inform the Appellate Body of these procedures and will transmit to the 
Appellate Body any SCI governed by these procedures, including any submissions containing 
information designated as SCI under these additional working procedures. Such transmission shall 
occur separately from the rest of the Panel record, to the extent possibl e.    
 
 
 
                                               
2 Where this is defined as when (a) the Panel or Appellate Body report is adopted by the DSB, or the 
DSB decides by consensus not to adopt  the Panel or the Appellate Body report; (b) the authority for the 
establishment of the Panel lapses under Article 12.12 of the DSU; or (c) a mutually satisfactory solution is 
notified to the DSB under Article 3.6 of the DSU.  WT/DS475/R/Add.1  
 
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  ANNEX A -3 
ADDITIONAL WORKING P ROCEDURES FOR PANEL' S EXPERT CONSULTATIO N 
Adopted on 2 June  2015 
 
1.1.  In the course of the proceedings, the  Panel shall determine if there is a need to seek expert 
advice . In addressing matters concerning scientific and/ or technical advice from experts1, the 
Panel shall have regard to the provisions of the DSU and, inter alia , to the objective of conduct ing 
these proceedings in an efficient and timely manner and at a reasonable cost. Should the Panel 
decide to consult exp erts, the procedures described below  shall apply.   
1.2.  Consistent with Article 13 of the DSU and Article 11.2 of the SPS Agreement, the Panel may 
seek expert advice from experts and from international organizations, as appropriate .  
1.3.  The Panel may ask any relev ant institutions , as well as the parties, for suggestions of 
possible experts . Parties shall not engage in direct contact with the individuals suggested  on any 
matter related to this dispute . 
1.4.  The Panel shall provide the parties with a list of possible expe rts, their curricula vitae  and 
declarations of potential conflicts of interest . In this declaration, each potential expert will be 
instructed to disclose information which may include the following:  
a. financial interests (e.g. investments, loans, shares, int erests, other debts); business 
interests (e.g. directorship or other contractual interests); and property interests 
relevant to the dispute in question;  
b. professional interests (e.g. a past or present relationship with private clients, or any 
interests the person may have in domestic or international proceedings, and their 
implications, where these involve issues similar to those addressed in the dispute in 
question);  
c. other active interests (e.g. active participation in public interest groups or other 
organi sations which may have a declared agenda relevant to the dispute in question);  
d. considered statements of personal opinion on issues relevant to the dispute in question 
(e.g. publications, public statements);  
e. employment or family interests (e.g. the possibi lity of any indirect advantage or any 
likelihood of pressure which could arise from their employer, business associates or 
immediate family members);  and 
f. any other relevant information.  
1.5.  Parties shall have the opportunity to comment and to make known any co mpelling objections 
to any particular expert.  
1.6.  The Panel shall select the experts on the basis of their qualifications and the need for 
specialized scientific expertise , and shall not select experts whom the Panel considers to have a 
conflict of interest ei ther after self -disclosure or otherwise. The Panel shall decide the number of 
experts in light of the number and type of issues on which advice shall be sought, as well as of the 
different areas on which each expert can provide expertise.  
1.7.  The Panel shall inform the parties of the experts and international organizations it has 
decided to consult , in accordance with the timetable adopted by the Panel. Experts shall act in 
their personal capacities and not as representatives of any entity . However, should the  Panel seek 
                                               
1 For the purpose of these Wor king Procedures, the term "expert" may be used to refer to individuals, 
institutions, research bodies, or international organizations.  WT/DS475/R/Add.1  
 
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  advice from an international organization, the advice received shall be deemed to be received from 
the international organization and not the individual staff members or representatives of the 
international organization. Moreover, any staff mem bers of such international organization that 
attend a meeting with the Panel , shall be deemed to do so in a representative capacity, on behalf 
of the respective international organization.  
1.8.  The experts shall be subject to the DSB's Rules of Conduct for the Understanding on Rules 
and Procedures Governing the Settlement of Disputes (WT/DSB/RC/1) , a copy of which shall be 
provided to them by the Panel .  
1.9.  The Panel shall prepare written questions for the experts. The Panel may ask the parties to 
suggest a limited  number of questions that the Panel could ask the experts. The experts shall be 
requested to provide responses in writing to the Panel questions within a time -period specified by 
the Panel . The experts shall be requested to respond only to questions on whi ch they have 
sufficient knowledge . The responses of experts shall be part of the Panel's record but shall not be 
attached to the Panel report as annexes. Copies of the responses shall be provided by the Panel to 
the parties , in accordance with the timetabl e adopted by the Panel. The parties shall have the 
opportunity to comment in writing on the responses from the experts  and to pose written 
questions to the experts in advance of the meeting, to be answered orally during such meeting . 
1.10.  The Panel may provide the experts, on a confidential basis, with relevant parts of the 
parties' submissions, including exhibits, as well as with any additional information deemed 
necessary . The experts shall have the opportunity to request, through the Panel, additional factual  
information or clarifications from the parties, if it shall aid them in answering the Panel 's questions.  
1.11.  The Panel may schedule a meeting with the experts, prior to the second substantive 
meeting with the parties.  Prior to the Panel's meeting with the ex perts, the Panel shall ensure 
that:   
a. the parties' comments on the experts' responses are provided to all experts;  
b. each expert is provided with the other experts' responses to the Panel's questions; and 
c. each expert is provided with advance questions from the parties to the experts, as 
described in paragraph 1.12 b. below, if any.  
1.12.  The Panel's meeting with the experts would be conducted as follows:  
a. The Panel shall invite each expert to make an opening statement. This statement may 
include, but is not limite d to, any clarification of their written responses to the Panel 
questions requested by the Panel or the parties, or information complementary to these 
responses. The experts that intend to make an opening statement shall provide the 
Panel with written vers ions of their statements, before they take the floor.  The Panel 
shall make available, to the other experts, and to the parties, each expert's written 
statement, no later than 5.00  p.m. on the first working day following the meeting.  
b. After the conclusion o f the statements, the Panel shall give each party the opportunity to 
ask the experts questions or make comments through the Panel. To facilitate this, each 
party may send in writing  in advance of the meeting, within a timeframe to be 
determined by the Pane l, any questions to the experts to which it wishes to receive an 
oral response at the Panel's meeting with the experts. Each expert shall be invited to 
respond orally to the parties' questions and to react to the parties' comments.   
c. The Panel may subseque ntly pose questions to the experts. The expert to whom the 
question is addressed shall be invited to respond orally to the Panel's questions. The 
Panel may also give the other experts the opportunity to address any question or 
comment.  WT/DS475/R/Add.1  
 
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  d. Once the questioning  has concluded, the Panel shall afford each expert an opportunity to 
present a brief closing statement.  
e. The Panel may schedule additional meetings with the experts if necessary.  
1.13.  The Secretariat shall prepare a compilation  of the experts' written replies t o the Panel's  
questions, as well as a full transcript of any meeting with the experts for inclusion in the record of 
the Panel proceeding . This transcript shall not be annexed to the Panel report. The experts shall be 
given an opportunity to verify , before  the texts are finalized , the drafts of these texts to ensure 
that they accurately reflect the information they provided . The parties shall likewise be given an 
opportunity to verify that the transcript of any meeting with the experts accurately reflects t he 
parties' own interventions.  
 
_______________  
 
 
 
 
 
 
 WT/DS475/R/Add.1  
 
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  ANNEX  B 
ARGUMENTS OF THE PAR TIES 
EUROPEAN UNION  
Contents  Page  
Annex  B-1 First part of the i ntegrated executive summary of the arguments of  the 
European  Union  B-2 
Annex  B-2 Second part of the i ntegra ted executive summary of the arguments of  the 
European Union  B-17 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  B-3 First part of the i ntegrated executive summary of the arguments of the 
Russian  Federation  B-33 
Annex  B-4 Second part of the i ntegrated executiv e summary of the arguments of the 
Russian Federation  B-44 
 WT/DS475/R/Add.1  
 
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  ANNEX  B-1 
FIRST PART OF THE I NTEGRATED EXECUTIVE SUMMARY OF THE ARGUM ENTS OF  THE EUROPEAN  UNION   
I. INTRODUCTION  
1. The European Union (EU) is challenging measures adopted by the Russian Federatio n 
(Russia) regarding the importation of live pigs and certain pig products (the products at issue), 
purportedly taken because of concerns related to cases of African swine fever (ASF) accruing on a 
limited part of the territory of four Member States of the  EU (EU MS), bordering Belarus and 
Russia.  
2. The Russian measures at issue consist of: (1) four individual bans on trade in live pigs and 
certain pig products, like fresh pork, from the entire territory of Lithuania, Poland, Latvia and 
Estonia and (2) an EU-wide import ban on trade in live pigs and certain pig products, like fresh 
pork. 
II. PROCEDURAL HISTORY  
3. The EU requested consultations with Russia on 8 A pril 2014, pursuant to Articles  1 and 4 of 
the DSU, Article 11 of the Agreement on the Applicatio n of Sanitary and Phytosanitary Measu res 
(SPS Agreement) and Article  XXIII of the General Agreement on Tariffs and Trade 1994 
(GATT  1994).  
4. The EU requested the establishment of a panel pursuant to Article 6 of the DSU on 27 June 
2014 and the panel was e stablished on 22 July 2014.  
III. FACTUAL BACKGROUND  
A. African Swine Fever  
1. The ASF virus  
5. The ASFV is a devastating infectious disease, usually deadly, in the case of both feral pigs 
(wild boars) and domestic pigs of the Sus scrofa  species. No vaccine  exists to combat the ASFV. It 
does not affect human beings nor does it affect animal species other than domestic pigs and wild 
boar. 
6. One of the main divergences between the EU and Russia is the approach to ASF eradication 
in wild boar. Russia believes that drastic increased hunting intended to achieve wild boar 
depopulation may produce positive results. However, the only result that such increased hunting 
may bring is rapid further territorial spread of the disease, through the dispersal of infected 
animals. This is thought to be the most likely cause of ASF introduction into certain limited parts of 
the EU, from Belarus and from Russia, as wild boar is not a migratory species.  
7. The EU is not against hunting wild boar in the infected areas per se, but we do not favour 
increased hunting pressure or hunting with means which would favour dispersal of the animals.  
2. The OIE standards  
8. The World Organisation for Animal Health (OIE) is the relevant international standards 
setting body dealing with animal h ealth issues. The version of the OIE Terrestrial Code in force at 
the date of the establishment of the Panel and thus relevant to the present dispute is the 
23rd edition, adopted in May 2014. These are the only relevant international standards with regard 
to ASF.  WT/DS475/R/Add.1  
 
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  3. ASF in Russia  
3.1. Historic Overview  
9. The first ASF cases were reported on the former USSR territory in 1977. More recently, ASF 
was introduced in Russia for the first time in the Chechny a Republic in November -December  2007. 
Since then ASF has  become apparently endemic in wild boars in the region. The disease widely 
spread geographically from the Caucasus further north and westwards, to the borders with Belarus 
and Ukraine, in all likelihood infecting pigs in these two countries.  
3.2. Present ASF situation in Russia  
10. In the period 2007 -2013 there were 226 ASF outbreaks in wild boar in Russia. The risk that 
ASF is endemic in Russia is high. The risk is also high that the virus will further spread to other 
areas.  
3.3. ASF transmission from Rus sia Westwards  
11. The virus strain found in the dead wild boar in Lithuania and Poland in 2014 matches 100% 
the ASF virus strain found in Belarus and belongs to the Genotype II from Russia.  
4. ASF in the EU  
4.1. Historic Overview  
12. With the exception of the island of Sardinia (Italy), ASF has been eradicated elsewhere in 
the EU prior to 2014.  
4.2. Present ASF situation in the EU  
13. In view of the fact that ASF moved closer to the EU borders as evidenced by the 2013 cases 
in Belarus, the EU MS bordering R ussia and Belarus (Estonia, Latvia, Lithuania and Poland), in 
compliance with existing EU legislation, put in place enhanced protection measures. These 
enhanced measures allowed at the beginning of 2014 the prompt detection of ASFV in a limited 
number of c ases in wild boar in Lithuania and Poland, close to the border with Belarus.  
14. A very limited geographical spread of the ASFV as of April 2015, confined to border regions 
with Belarus and Russia, and the non -transmission of the ASFV to our trade partners  which 
continued to import the products at issue from the ASF -free areas in the recently affected EU 
Member States, gives the EU a high degree of confidence in the robustness of our ASF 
regionalization measures.  
15. The emergency response in case of ASF in  the EU Member States is based on the national 
"contingency plans".  Directive 2002/60 establishes that each EU Member State shall draw up a 
contingency plan specifying the national measures to be implemented in the event of an ASF 
outbreak, taking into ac count local factors, like the pig density, which is likely to influence ASF 
spread.  
16. In the areas  considered ASF infected in the EU three major sets of measures are 
implemented: i) the disease control measures in case of outbreaks in domestic pigs laid  down in 
Directive 2002/60; (ii) in case of ASF in feral pigs (wild boar) the main measures are provided for 
in Articles 15 and 16 of Directive 2002/60; the national eradication plans prepared by the EU 
Member States describe in detail the applicable measu res; and (iii) an additional layer of safety by 
the delimitation of different parts according to the ASF risk, containing specific prohibitions and 
measures, as provided in Decision 2014/709.  WT/DS475/R/Add.1  
 
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  B. The Measures at Issue  
1. Measures notified to the WTO  
17. Russia notified to the WTO SPS measures concerning four EU MS. De facto, Russia has 
applied an EU -wide ban since the very first ASF cases in Lithuania in January 2014. It calls this 
measure "provisional compliance with the terms of the veterinary certificates ". However, the 
EU-wide ban was never notified by Russia to the WTO.  
2. The EU -wide Ban  
18. The refusal by Russia to accept imports of the products at issue from the entire EU amounts 
to an EU -wide ban. The EU identifies this specific measure at issue both  as an action (an import 
ban or restriction) and, in the alternative, as an omission (failure to accept imports from the EU). 
The EU seeks review of this specific measure at issue as such and as applied, de jure  and de facto  
(that is, based on all the rele vant facts).  
19. Russia attempts to justify the EU -wide ban by arguing that it cannot return to a situation 
where veterinary export certificates are discussed bilaterally with individual EU Member States, 
and it apparently considers that this should someho w be imputable to the EU. In making this 
argument, Russia acknowledges the existence and precise content of the EU -wide ban and that it 
is attributable to Russia. Finally, Russia is simply wrong to suggest that anything on the record 
supports its assertion  that the EU has, by implication, relinquished its right to bring this matter 
before a panel, pursuant to the terms of the DSU. The Appellate Body has made it very clear that 
Members cannot be considered to have relinquished their DSU rights other than exp ressly and 
unequivocally.  
20. Russia chose to obstruct the process of clarifying the export certificates in light of the 
current situation by referring to its arrangements within the framework of the Customs Union with 
Belarus and Kazakhstan, which is cont radicted by the text of Decision 317/2010 of the Customs 
Union.  
3. The applicability of the SPS Agreement  
21. According to its Article 1.1, the SPS Agreement covers sanitary measures which may, 
directly or indirectly, affect international trade. The EU est ablished that the Russian measures are 
sanitary measures within the meaning of the SPS Agreement and that they "directly affect 
international trade". Russia did not dispute this characterization.  
IV. CLAIMS  
A. Claims related to harmonization  
1. Article 3.2  of the SPS Agreement  
22. Russia's notifications to the SPS Committee with regard to the four individual country -wide 
bans, concerning Lithuania, Poland, Latvia and Estonia make reference to OIE international 
standards. The EU considers that the Panel shou ld start its analysis rather with respect to the 
harmonization claims and then continue with the claims related to risk assessment. However, 
whichever order of analysis the Panel may chose, given the absence of remand authority under the 
DSU, judicial econ omy may not be appropriate, especially if it prevents the Appellate Body from 
completing the legal analysis in the event of an appeal.  
23. The only international standards with respect to the ASF are to be found in the OIE 
Terrestrial Code. The internatio nal standards, guidelines and recommendations for animal health 
are those developed under the auspices of the OIE, according to Annex A(3)(b). The OIE 
Terrestrial Code is thus incorporated by reference into the SPS Agreement and for the purposes of 
dispute  settlement panels and the Appellate Body have the authority to interpret its provisions. 
The OIE Terrestrial Code is not an international agreement (treaty), but it is a document adopted 
by the World Assembly of Delegates of the OIE. However, the EU agree s that in interpreting the WT/DS475/R/Add.1  
 
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  Code the WTO adjudicating bodies may seek guidance in the relevant customary rules of treaty 
interpretation, including in the Vienna Convention on the Law of Treaties.  
24. The Appellate Body has clarified that "a measure that con forms to an international standard 
would embody the standard completely and, for practical purposes, converts it into a municipal 
standard". The OIE Terrestrial Code recommends regionalization, while Russia applies an EU -wide 
ban and country -wide bans for the four partially affected EU MS. The Russian measures do not 
"conform to" and are not "based on" the relevant international standards.  
25. The Russian notifications to the SPS Committee are inaccurate and contradictory. It invokes 
different chapters of t he OIE Terrestrial Manual and th e OIE Terrestrial Code. Chapter  2.8.1. of the 
OIE Terrestrial Manual only sets standards for diagnostic tests and vaccines and it does not set the 
standards relevant for international trade. Furthermore, according to Russia some of the measures 
at issue are related to food safety and the protection of humans from animal/ plant pest or 
disease.  
26. The correct applicable standards for the respective measures are mainly to be found in 
Chapter 15.1. of the OIE Terrestrial Code, which deals with trade in the products at issue, in 
conjunction with Chapter 4.3., which deals with regionalization. The Russian measures do not 
conform to any of these standards. On the contrary, they go against the mentioned standards and 
impose country -wide bans.  
27. The three elements described in the international standards "ASF free country, zone or 
compartment" are rather related to the objective characteristics of the ASF situation and not to the 
subjective choice of the importing Members. If the en tire country is not ASF free, then the 
recommendation is to look into the regionalization measures and allow trade form ASF free zones. 
If the extent of the disease spread is so significant that zones cannot be effectively established, 
then in principle th e recommendation is to allow trade from ASF free compartments.  
28. The conformity with the international standards of the bans on the importation into Russia of 
the products at issue from the EU can be summarized as follows:  
- the ban on trade in live pigs  does not follow Article 15.1.5 of the OIE Terrestrial Code;  
- the ban on trade in "genetic material" of pigs does not follow the recommendations in Article 
15.1.8. (semen of domestic pigs) and Article 15.1.10. (in vivo derived embryos of domestic pigs) 
of the OIE Terrestrial Code;  
- the ban on fresh pork does not follow Article 15.1.12. of the OIE Terrestrial Code;  
- the four individual bans on "finished goods, which contain pork", "other prepared or canned 
meat", "ready to eat products, containing pork" does not follow  the recommendations in 
Article  15.1.14. (meat products of pigs, either domestic or wild) of the OIE Terrestrial Code;  
- the ban on products used for animal feeding does not follow Article 15.1.14. (products from fresh 
meat of pigs intended  for use in animal feeding) of the OIE Terrestrial Code;  
- the ban on bristles does not follow Article 15.1.16. of the OIE Terrestrial Code;  
- the ban on "products of slaughter of wild boars" does not follow Article 15.1.13. (fresh meat of 
wild pigs) and Article 15.1.14. (meat products of wild pigs) of the OIE Terrestrial Code.  
29. The same products mentioned above are also covered by the EU -wide ban, with the 
exception of products subjected to heat treatment or maturation. Several examples of covered 
products are offered by Russia as rejected consignments.  
30. The EU is not required to demonstrate that its control measures are in accordance with the 
OIE Terrestrial Code – it is Russia that asserts that its SPS measures are in conformity with or are 
based o n the OIE Terrestrial Code. Nevertheless, we have demonstrated that our measures are in 
accordance with the OIE Terrestrial Code, and specifically with the use of regionalisation.  WT/DS475/R/Add.1  
 
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  31. The EU neither established containment zones nor compartments within th e meaning of 
Chapter 4.3 of the OIE Terrestrial Code.  
32. The EU has established areas considered to be infected with ASFV and ASF -free areas. The 
establishment of containment zones within the meaning of Article 4.3.3.3. of the OIE Terrestrial 
Code is not  the only possible tool in applying regionalization, but only a possible option ( may). 
33. The EU neither identified compartments, nor requested Russia for recognition of 
compartments with high levels of biosecurity, inter alia , from the affected regions o f Estonia, 
Latvia, Lithuania, or Poland. Instead, the EU identified zones according to the different levels of 
risk and requested Russia to recognize ASF -free zones from Estonia, Latvia, Lithuania, Poland and 
the rest of the non -affected areas in the EU.  
34. Under the OIE Terrestrial Code there is no compulsory rule as to which method an exporting 
country may choose. The options of ASF -free zone or compartment are presented in the text of all 
the relevant standards in the alternative. One concept does not a utomatically take precedence 
over the other. Chapter 15.1 of the OIE Terrestrial Code recommends trade from ASF -free zones 
with respect to the same products it recommends trade from ASF -free compartments. Both options 
are equally possible and it is up to e ach exporting Member to choose its approach, in accordance 
with the provisions of Article 6 of the SPS Agreement.  
35. It may happen that the exporting Member establishes ASF free zones and at the same time 
ASF free compartments within the zones which are n ot ASF free. This is a possible option available 
to an exporting Member and not an obligation.  
36. It clearly follows from the above that Russia's measures at issue not only do not "conform 
to" but actually are contrary to the applicable international stan dards. Consequently, Russia's 
measures cannot be deemed as necessary to protect animal health and cannot benefit of the 
rebuttable presumption of consistency with the relevant provisions of the SPS Agreement, within 
the meaning of Article 3.2 of the SPS Ag reement.  
37. The reference to relevant provisions in Article 3.2 has to be understood as closely related to 
the subject in an appropriate way. Such provisions are those related to the risk assessment and 
scientific evidence. The international standards co ntained in the OIE Terrestrial Code are based on 
the most recent scientific and technical information. However, the OIE standards do not deal with 
other aspects, like discrimination. Accordingly, a measure which conforms to the recommendations 
in the OIE T errestrial Code may still be discriminatory.  
2. Article 3.1 of the SPS Agreement  
38. A WTO Member has always the choice to follow the international standards or to conduct a 
risk assessment. However, once a WTO Member decides to rely on the relevant intern ational 
standards then the language of the SPS Agreement is imperative ("shall base").  
39. The "base on" requirement in Article 3.1 is differe nt from "conform to" in Article  3.2. It 
means that the measures are "supported" by the international standards. Th e EU has 
demonstrated in the previous section that the Russian measures at issue are contrary to the 
relevant international standards. The Russian measures cannot be said to be "supported" by the 
international standards or to incorporate some elements of t he said standards.  
40. Similarly, in India - Agricultural Products  the panel found that the Indian measures and the 
OIE recommendations contradicted each other and thus the Indian measures could not be said to 
be based on international standards. It clearl y follows that the Russian measures at issue are not 
"based on" the applicable international standards within th e meaning of Article 3.1 of the SPS 
Agreement.  
3. Article 3.3 of the SPS Agreement  
41. The right of Members to establish a higher level of sanit ary protection under Article  3.3 is an 
autonomous right and not an exception to a "ge neral obligation" under Article  3.1. WT/DS475/R/Add.1  
 
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  42. While Article 3.3 of the SPS Agreement is "not a model of clarity in drafting", the last 
sentence states that a measure which depa rts from the international standards shall not be 
inconsistent with any other provision of the SPS Agreement. It follows that the inconsistency of the 
measures at issue with several provisions of the SPS Agreement, notably those related to risk 
assessment,  regionalization and non -discrimination, are relevant for a finding of inconsistency with 
Article 3.3.  
43. The Appellate Body noted that "there is a ‘scientific justification' for an SPS measure, within 
the meaning of Article 3.3, if there is a rational re lationship between the SPS measure at issue and 
the available scientific information". A finding of inconsistency with Article 5.1 will always imply 
that the respective measure is inconsistent with Article 3.3.  
B. Claims related to risk assessment  
1. Artic les 5.1 and 5.2 of the SPS Agreement  
44. As Russia's measures do not "conform to" and are not "based on" the OIE recommendations, 
it is necessary to establish whether there is a solid scientific basis for their imposition. Under an 
Article 5.1 analysis, tw o issues should be addressed: whether there is a "risk assessment" within 
the meaning of the SPS Agreement and whether the SPS measures at issue are "based on" the 
mentioned risk assessment.  
45. The definition of the risk assessment is provided in paragrap h 4 of Annex A of the SPS 
Agreement. As a previous panel notes, there are two types of risk assessment. Thus, the type of 
risk assessment to be performed in a given case depends on the objective pursued by the 
respective SPS measure.  
46. The first type of risk assessment shall: (1) identify the diseases  whose entry, establishment 
or spread a Member wants to prevent within its territory, as well as the potential biological and 
economic consequences  associated with the entry, establishment or spread of these diseases; (2) 
evaluate the likelihood of entry, establishment or spread  of these diseases, as well as the 
associated potential biological and economic consequences; and (3) evaluate the likelihood of 
entry, establishment or spread of these diseases accordi ng to the SPS measures which might be 
applied . 
47. In turn, the second type of risk assessment involves two elements: (1) the identification of 
the adverse effects on animal health (if any) arising from the disease -causing organism in the 
food/beverages/fe edstuffs at issue and (2) the identification of the potential of occurrence of the 
mentioned effects.  
48. The "based on" requirement in Article 5.1 does not mean that the SPS measures have to 
"conform to" the risk assessment, but rather that the risk asses sment must "reasonably support 
the SPS measure at stake". It refers to a "certain objective relationship  between two elements, 
that is to say, to an objective situation  that persists and is observable between an SPS measure 
and a risk assessment".  
49. While repeatedly asked by the EU and by the Panel during the first substantive meeting to 
provide its risk assessment, Russia deferred answering the question and was not able to provide 
any supporting documentation.  
50. Article 5.2 qualifies the way in which a risk assessment has to be carried out, not the 
substantive obligation to base a sanitary measure on a risk assessment. In adopting, maintaining 
and/or applying the measures at issue, Russia did not and does not take into account available 
scientific evid ence; relevant processes and production methods; relevant inspection, sampling and 
testing methods; the prevalence of specific diseases; the existence of disease -free areas; the 
relevant ecological and environmental conditions; and quarantine or other trea tment, as required 
by Article 5.2 of the SPS Agreement. Had Russia properly taken these matters into account, it 
would have concluded that the measures at issue are unnecessary and unjustified.  WT/DS475/R/Add.1  
 
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  2. Article 2.2 of the SPS Agreement  
51. Article 2 of the SPS A greement, entitled "basic rights and obligations" reflects a legislative 
drafting technique often used in the covered agreements: there is first a general provision setting 
the general principles and then more specific provisions that elaborate on the cont ents of the 
respective rights and obligations. The general provision is there in principle to catch possible 
situations (if any) which would escape the scrutiny of the more specific provision.  
52. Article 2.2 of the SPS Agreement establishes that SPS measu res shall be applied only to the 
extent necessary to protect animal life and health, shall be based on scientific principles and shall 
not be maintained without sufficient scientific evidence , except as provided in Article  5.7. 
53. The necessity requiremen t has not been clarified in the context of this provision. However, 
one may find useful guidance in the interpretation of necess ity in the framework of Article  XX(b) of 
the GATT or of Article 2.2 of the TBT Agreement, as well as in the provisions of Articl e 5.6 and 
footnote 3 of the SPS Agreement.  
54. The second element of Article 2.2 is the general requirement to base measures on scientific 
principles and not maintain them without sufficient scientific evidence. Article 5.1 is a more specific 
provision re lated to these principles, requiring WTO Members to undertake a risk assessment. A 
violation of the more specific provision in Article 5.1 constitutes also a violation of the more 
general requirements in Article 2.2.  
Russia did not provide any risk assessm ent for the measures at issue, violated the provisions of 
Article 5.1 of the SPS Agreement, and therefore the provisions of Article 2.2. Similarly, a finding of 
a violation of Article 5.6 with regard to risk management will consequentially result in a viol ation of 
Article 2.2 of the SPS Agreement.  
3. Article 5.7 of the SPS Agreement  
55. The case -law refers to Article 5.7 as a "qualified exemption" from the provisions of Article 
5.1 or as an autonomous right. In an emergency situation the importing Member is  not compelled 
to perform a risk assessment within the meaning of Article 5.1, but rather to conduct a "less" 
objective assessment of risk within the meaning of Article 5.7. What that might amount to can 
only be assessed on a case -by-case basis, and, depen ding on the circumstances, the less objective 
assessment of risk might be initially extremely cursory. However, as the situation evolves, one 
would expect it to crystalize further.  
56. According to the panel in EC — Approval and Marketing of Biotech Produc ts, the provisional 
adoption of an SPS measure is not a condition for the applicability of Article 5.7, as the measure at 
issue has to satisfy all the criteria set forth in Article 5.7 in order to be provisionally adopted.  
57. The Appellate Body held that four cumulative requirements are imposed upon a Member 
having recourse to this provision. It may provisionally adopt an SPS  measure if this measure is 
(1) imposed in respect of a situation where ‘relevant scientific i nformation is insufficient' and 
(2) adopted ‘on the basis of available pertinent information'. Such a provisional measure may not 
be maintained unless the respective Member: (3) ‘seek[s] to obtain the additional information 
necessary for a more objective assessment of risk'; and (4) ‘review[s] the … measure accordingly 
within a reasonable period of time'.  
58. With regard to the first condition, the application of Article 5.7 is triggered by the 
insufficiency of scientific evidence and not by the existence of scientific uncertainty.  
59. The Appe llate Body determined in Japan  - Apples  that the relevant scientific evidence is 
"insufficient" within the meaning of Article 5.7 if the body of available scientific evidence does not 
allow, in quantitative or qualitative terms, the performance of an adequ ate assessment of risks as 
required under Article 5.1 and as defined in Annex A to the SPS Agreement. The Appellate Body 
also noted that although further scientific investigation is possible, this does not equate to the 
insufficiency of the relevant scient ific evidence.  WT/DS475/R/Add.1  
 
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  60. In SPS cases is not uncommon that there is scientific controversy. However, such 
controversy should not lead to the conclusion that the relevant scientific evidence is "insufficient". 
The ‘insufficiency' of the scientific evidence is no t a perennial state, but rather a transitory one, 
which lasts only until such time as the imposing Member procures the additional scientific 
evidence.  
61. With regard to the second condition, according to the Appellate Body the information is 
pertinent whe n there is a rational and objective relationship between the information and the 
measure.  
62. It may very well be that with regard to the same ASF outbreaks and cases some WTO 
Members recognize the EU regionalization measures and allow trade from the ASF -free areas, 
while others impose a ban on the products at issue from the entire EU Member State affected. 
Measures adopted by other WTO Members are not relevant (some of them may very well be WTO 
inconsistent), but what matters would rather be the risk asse ssment and the scientific evidence 
underlying those measures (if any). This is a science -based process.  
63. In the present case such rational and objective relationship exists with respect to 
information from Members which accepted the EU regionalization m easures, allowed trade to 
continue, and as a consequence did not suffer any ASF introduction. Such measures can only 
confirm the robustness of the EU ASF regionalization measures. Countries that accept the products 
at issue from the non -restricted areas in  the four recently ASF affected EU Member States, as well 
as from all the other non -affected zones in the EU  are Albania, Bahamas, Canada, Georgia, Haiti, 
FYR Macedonia, Iceland, Republic of Moldova, New Zealand, Namibia, Norway, Switzerland, 
Ukraine, Unit ed States and Vietnam.  
64. The category  of information or data (defined in abstract terms) to be considered in a risk 
assessment is the same under Article 5.1 and Article 5.7. In both cases, it is contextually informed 
by the language of Articles 5.1, 5.2  and 5.3 and the definit ion of risk assessment in Annex  A(4). It 
may equally be contextually informed by other provisions of the SPS Agreement, including Article 
5.7. In fact, no provision of the SPS Agreement explicitly limits the information that might b e 
relevant. Rather, the risk assessment must be "appropriate to the circumstances".  
65. The difference between an Article 5.1 situation and an Article 5.7 situation does not relate to 
the abstract delimitation of the category of data that might be relevant , but rather relates to the 
extent to which the category is populated by data . 
66. The other two conditions of Article 5.7 require that the importing Member seeks to obtain 
the additional information necessary for a more objective assessment of risk and re view the 
sanitary measure accordingly within a reasonable period of time.  
67. The Appellate Body noted that the additional information sought must be relevant for 
conducting a more objective risk assessment. However, if the information sought is irrelevant , the 
defending Member cannot provisionally shelter its measures under Article 5.7. Further, it will likely 
be in breach of Article 8 and Annex C(1) of the SPS Agreement. In the present case the necessary 
information for an objective risk assessment was al ready provided at an early stage by the EU to 
Russia and supplemented in several instances.  
68. Compliance with the fourth condition, with regard to a "reasonable period of time" has to be 
established on a case -by-case basis. The EU submits that Russia has  failed to review its measure 
within a reasonable period of time. In the cases where science remains insufficient to form a 
definitive view because the disease is new and not sufficiently studied, the reasonable period of 
time could last for many years or decades, depending on the nature of the problem. However, 
unlike previous cases such as the Hormones or GMO which involved relatively "new" issues, there 
does not seem to be much controversy between the parties about the science of ASFV.  WT/DS475/R/Add.1  
 
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  C. Claims related to regionalization  
1. Articles 6.1 and 6.2 of the SPS Agreement  
69. The regionalization requirements in Article 6 should be understood in the light of the 
"significantly less trade restrictive alternative" requirement in Article 5.6. A regional ban (instea d 
of a country -wide ban) should not be automatically equated to a low ALOP. Adaptation to the 
regional conditions is a relevant factor in the Articles 3.2 and 5.1/5.2 or 5.7 analyses.  
70. Article 6.1 of the SPS Agreement is a more general provision which informs the following 
paragraphs. The panel in India-Agricultural Products  stated that the assessment of the conformity 
of a Member's measure with Article 6 should start with th e first sentence of the Article  6.2, then 
continue with the second sentence of Article 6.2 and with Article 6.1.  
71. Similarly to India-Agricultural Products , in this case Russia did not recognize the concept of 
disease -free areas with respect to ASF in the EU. The EU observes that the alleged explicit 
"recognition" of regionalizatio n by Russia is contradicted by the facts of the case. It may be 
inferred from the unreasonable refusal to accept the regionalization measures of the exporting 
Member, including irrelevant questions asked pursuant to Article 6.3 of the SPS Agreement, that 
an importing Member does not, in fact, recognize the concept of disease -free areas. Russia's 
actions and inactions with respect to ASF -related regionalization in the EU do not match - and in 
fact contradict - the apparent explicit recognition.  
72. The two p rovisions in Articles 6.2 and 6.3 are related to each other, in the sense that if the 
importing Member does not even recognize the concept of regionalization with respect to ASF, 
then any attempts by an exporting Member to prove that the conditions for saf e trade in the 
products at issue from the non -affected areas are fulfilled would be rendered fruitless.  
73. In the same vein, the EU agrees with the panel's finding in India- Agricultural Products  and 
with Australia's proposition that for a measure to comp ly with Article 6.2 it must at least not deny 
or contradict the recognition of such areas.  
74. Each of the measures at issue is therefore inconsistent with Russia's obligations under 
Articles 6.1 and 6.2 of the SPS Agreement, because Russia has not ensured , and does not ensure, 
that the measures at issue are adapted to the sanitary characteristics of the area from which the 
products at issue originate and to which they are destined. In assessing the sanitary 
characteristics of the affected area, Russia fail ed to take into account, inter alia , the level of 
prevalence or absence of ASF, the existence of eradication and highly effective transparent control 
programs (immediately implemented in accordance with international standards laid down by the 
OIE), and ap propriate criteria or guidelines developed by the relevant international organizations.  
2. Article 6.3 of the SPS Agreement  
75. With regard to Article 6.3 of the SPS Agreement, an importing Member is under no 
obligation to automatically accept a regionaliz ation proposal from the exporting Member. However, 
its decision must take into account objective factors such  as those enunciated in Article  6.2, 
second sentence of the SPS Agreement. In case of disagreement between the importing and the 
exporting Members,  the exporting Member can defer the dispute to the WTO adjudicating bodies.  
76. Since the detection of ASF in wild boar in Lithuania in January 2014 the EU has provided 
Russia information beyond what is necessary for objectively demonstrating that disease -free areas 
are and are likely to remain disease -free areas.  
77. The information was supplied via an exchange of email messages and registered letters 
between the competent services and access was allowed to Russian and Customs Union experts for 
inspection in the EU. Several meetings took place, both in the EU and in Russia, in order to further 
discuss any aspects that the Russian counterpart considered required further clarification. 
However, most of the outstanding issues invoked by the Russian authorities  were not relevant for 
the purposes of ASF regionalization within the EU, were already answered, or sought to impose 
upon the EU a probatio diabolica.  Russia abusively used the information requests as a delaying WT/DS475/R/Add.1  
 
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  technique and not for a "more" or "less" obj ective risk assessment, which has never been 
conducted or at least never provided to the EU or to the Panel.  
78. The SPS Committee has developed specific Guidelines on Article 6. These Guidelines 
describe a possible succession of steps in the process of th e recognition of zoning, from step A to 
Step I. Furthermore, the SPS Committee Guidelines make reference to the fact that Members 
should proceed with a recognition process without "undue delay", and that the discussions should 
be undertaken within a "reaso nable period of time", normally within 90 days of a request.  
79. These Guidelines provide a useful framework for understanding how the mechanism of 
Article 6 may operate. The panel in India- Agricultural Products  has considered these Guidelines 
"to be info rmative in [the] consideration of how to approach Article 6 because they expand on the 
Members' own understanding of how the provisions of Article 6 are to be implemented". The 
Guidelines served for confirming a conclusion already reached by the panel.  
80. The EU explained in detail how its regionalization system with regard to ASF works. The EU 
permanently adapts the areas considered to be infected to the latest developments in the ASFV 
spread, so as to anticipate further developments. It is significant th at since August  2014 there 
were no cases and outbreaks outside of the areas considered to be infected. It is also significant 
that only three clusters of outbreaks occurred outside of the areas considered to be infected since 
the first case in wild boar in  Lithuania in January 2014.  
81. The EU operates with the concepts of ASF -free areas and areas considered infected with 
ASF, within the meaning of Chapter 15.1 of the OIE Terrestrial Code. The areas considered 
infected with ASF are divided into four parts, out of which Parts I, II and III are relevant for the 
purposes of the present dispute; specific prohibitions and measures (including additional 
biosecurity measures) apply with regard to trade in the products at issue from those areas. The 
national eradica tion plans address surveillance and control measures with respect to feral pigs 
(wild boar) and they may contain a different terminology, as used by the respective EU Member 
States. The protection zones and surveillance zones refer to outbreaks in domestic  pigs; they are 
both included in Part III of Decision 2014/709 with respect to the four EU Member States at issue. 
Separately from all of the above, a "buffer zone" was established in Lithuania after the several 
cases/outbreaks in Belarus, as a preventive measure in 2013.  
82. It follows that the EU has provided in a timely manner all the necessary information with 
respect to its ASF regionalization measures in Lithuania, Poland, Latvia and Estonia, in order to 
objectively demonstrate to Russia that the rest  of these EU MS and the rest of the EU (except 
Sardinia) are and are likely to remain disease free areas. Reasonable access has been given to 
Russia for inspection, testing and other relevant procedures. However, Russia failed to conclude its 
recognition p rocess without undue delays. Accordingly, Russia is in breach of its obligations under 
Article 6 of the SPS Agreement.  
D. Claims related to risk management  
1. Article 5.6 of the SPS Agreement  
83. The phrase "appropriate level of sanitary or phytosanitary p rotection", also referred to as 
the acceptable level of risk, is defined in Annex A(5) of the SPS Agreement. The SPS Agreement 
and the corresponding case law recognize that each WTO Member may establish the level of 
protection it deems appropriate. This in cludes a "zero -risk" policy and may cover any ascertainable 
risk, including small or "negligible" risks. The right of a Member to define its appropriate level of 
protection is not, however, an absolute or unqualified right. Article 3.3 of the SPS Agreement  also 
makes this clear.  
84. The scope of a panel's review is not to decide the ALOP for a Member. A Member is in 
principle entitled to establish its own ALOP, subject only to complying with certain specific 
provisions in the SPS Agreement.  
85. With regard to a Member's ALOP the powers of a Panel concern two main aspects. First, the 
Panel may deduce a Member's ALOP from the measures at issue, if it is not clearly stated or if 
there is discrepancy between what is stated and the specific facts of the respectiv e case.  WT/DS475/R/Add.1  
 
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  86. Second, the SPS Agreement qualifies a Member's decisions on ALOPs in a number of ways. 
In particular, according to Article 5.4 Members should, when establishing their ALOP, take into 
account the objective of minimizing negative trade effects. F urthermore, according to Article  5.5 of 
the SPS Agreement, each Member shall avoid arbitrary or unjustifiable distinctions in the levels it 
considers to be appropriate in different situations, if such distinctions result in discrimination or a 
disguised re striction on international trade. This provision does not apprehend the fixing of the 
ALOP per se , but it does speak to a need for consistency in setting ALOPs.  
87. In the present case Russia has not expressly stated its appropriate level of protection. 
According to the Appellate Body, if the level of protection is not specified in writing, a panel should 
infer it from the SPS measures applied in practice.  
88. The present case presents similarities to India - Agricultural Products.  The EU -wide ban and 
the four individual bans are not combined with a Russia -wide ban, as products associated with the 
risk of ASF from the non -affected zones of Russia are allowed to be traded. In addition, these bans 
are not able to achieve restrictions in wildlife movements, an important factor of ASF transmission 
being the wild boar populations. Furthermore, infected wild boars may move into Russia also from 
its affected neighbours in the Caucasus region.  
89. In conclusion, all factual evidence on the record indicates that in fa ct Russia has a rather low 
ALOP. This can in no circumstances support an inference of a zero -risk policy as Russia's ALOP.  
90. Even if one were to assume that Russia has a very high or conservative ALOP, the EU 
submits that the application of the OIE stand ards, which recommend regionalization and trade 
from the ASF -free countries/zones or for any part of a country notifying ASF if the products 
underwent specific treatments, is a less trade -restrictive alternative, cumulatively meeting the 
conditions of foot note 3 of the SPS Agreement.  
91. Indeed, the adoption of the OIE standards is an alternative reasonably available to Russia, 
which does not involve technical difficulties or an unfeasible economic burden, while achieving 
Russia's ALOP and being significan tly less trade restrictive. Consequently, the measures at issue 
are inconsistent with the provisions of Article 5.6 of the SPS Agreement.  
2. Articles 5.3 and 5.4 of the SPS Agreement  
92. The existence of unknown and uncertain elements does not justify a de parture from the 
requirements under Article 5.3 (as read together with Articles 5.1 and 5.2 and paragraph 4 of 
Annex A) for a risk assessment. However, Russia failed to take into account all relevant economic 
factors referred to in Article 5.3 of the SPS A greement, including the relative cost -effectiveness of 
alternative approaches to limiting risks.  
93. According to the panel in EC- Hormones  Article 5.4 does not impose an obligation on the 
Members but it has to be taken into account when interpreting other  provisions of the SPS 
Agreement. Furthermore, the Appellate Body noted in Australia — Salmon  that the SPS Agreement 
contains an implicit obligation that WTO Members determine their ALOP.  
94. By applying an EU -wide ban and four individual country -wide bans  for the EU MS concerned, 
Russia has clearly not taken into account the objective of minimizing negative trade effects when 
determining its ALOP and has thus breached the provisions of Article 5.4 of the SPS Agreement.  
E. Discrimination claims  
1. The order  of analysis  
95. Article 2.3 of the SPS Agreement deals with sanitary measures which discriminate between 
Members or which are applied in a manner which would constitute a disguised restriction on 
international trade, while Article 5.5 of the SPS Agreement  deals more specifically with distinctions 
in levels of protection  which result in discrimination or a disguised restriction on international 
trade.  WT/DS475/R/Add.1  
 
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  96. The Appellate Body has stated that a violation of Article 5.5 of the SPS Agreement would 
automaticall y trigger a violation of Article 2.3 of the SPS Agreement, while the reverse is not 
necessarily true. However, the panel in India-Agricultural Products  started its analysis with the 
order proposed by the complainant, namely with Article 2.3. After finding several violations of 
Article 2.3 the panel exercised judicial economy as to the claims brought in the alternative by the 
US under Article 5.5 of the SPS Agreement. The EU will present its arguments similarly.  
2. Article 2.3 of the SPS Agreement  
2.1. Unjus tifiable discrimination: the legal standard  
97. The obligations in the two sentences of Article 2.3 should not be mechanistically 
distinguished, as the respective concepts impart meaning to one another. Russia's measures 
violate the obligations contained i n both sentences of Article 2.3.  
98. According to a previous panel, there are three cumulative requirements to be met before a 
violation of the first sentence of Article 2.3 can be established:(1) the measure discriminates 
between the territories of Member s other than the Member imposing the measure, or between the 
territory of the Member imposing the measure and that of another Member;(2) the discrimination 
is arbitrary or unjustifiable; and(3) identical or similar conditions prevail in the territory of th e 
Members compared.  
99. The first requirement contains a national treatment component (the discrimination operating 
between the territory of the Member imposing the measure and the territory of another Member) 
and an MFN component (the discrimination opera ting between territories of Members other than 
the Member imposing the measure).The second requirement (the discrimination is "arbitrary or 
unjustifiable") focuses on the cause of the discrimination, or the rationale put forward to explain its 
existence. T he third requirement concerns the presence of similar or identical conditions in the 
Members taken as comparators. These identical or similar conditions should be relevant conditions. 
In this respect the analysis concerning the justifiability of the discri mination and the relevance of 
the conditions prevailing becomes congruent.  
100. The EU will prove that all three conditions in the first sentence of Article 2.3 are met, with 
regard to two different instances of discrimination (corresponding to the nationa l treatment and 
MFN principles): (1) a total ban on imports from the entire territory of the EU (and from the entire 
territory of the four affected EU MS) vs. a limited ban on Russian domestic products, applied only 
to the products from a limited area arou nd the ASF epizootic hotbed; furthermore, the ban on 
imports from countries reporting ASF such as the EU is disproportionate in comparison to the 
measures with limited efficiency to ensure proper detection and containment of ASF within Russia; 
and (2) the initial acceptance of regionalization measures of other WTO Members, like Ukraine, 
while not recognizing the state -of-the art ASF regionalization measures in the EU.  
2.2. The first instance of unjustifiable discrimination  
101. First, Russia does not accept  regionalization, which would allow trade in the products at 
issue from the entire EU territory, except the ASF affected areas in the four mentioned MS and the 
island of Sardinia. However Russia allows intra -Russian trade in live pigs and pig products from  the 
non-affected areas and does not apply a Russia -wide ban on the products associated with the risk 
of ASF.  
102. Second, this discrimination between the Russian territory and the EU territory is arbitrary 
and unjustifiable because the difference in treat ment cannot be explained by a different epizootic 
status. In practice the EU regionalization measures are effective, which cannot be said about the 
Russian measures.  
103. Third, for the purposes of the Article 2.3 analysis the same or similar conditions pr evailed 
both in the EU (including in the four EU MS concerned) and in Russia. Therefore, Russia imposed a 
disproportionate ban on the EU products at issue after the ASF notifications to the OIE, while the 
Russian domestic measures have limited efficiency i n ensuring proper detection and containment 
of ASF within Russia, where trade in the products associated with the risk of ASF of Russian origin 
is in principle permitted.  WT/DS475/R/Add.1  
 
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  2.3. The second instance of unjustifiable discrimination  
104. The second instance of unjustifiable discrimination concerns the trade in the products at 
issue from the EU and trade in the products associated with the risk of ASF from another WTO 
Member, in this case Ukraine.  
105. Relevant to the present case are two instances of discriminat ion, both occurring before the 
date of the establishment of the panel. The first instance occurred in 2012, when Russia did not 
apply any ban to Ukrainian products following an ASF case in the Zaporozhye region. Russia 
considered at the time that the Ukrai nian measures were sufficient to prevent any spread of the 
ASFV.  
106. The second instance of discrimination occurred at the beginning of 2014 with respect to the 
Lugansk region. On 15 January 2014 Russia announced a ban on the trade from the Lugansk 
region, while accepting pig products from the rest of Ukraine. This regional ban was notified to the 
WTO on 21 January 2014. Strangely enough, in its First Written Submission Russia presents a 
letter sent to the Ukrainian authorities on 30 January 2014, that is  15 days after Russia already 
adopted the decision with respect to the Lugansk region and three days after the imposition of the 
EU-wide ban. In that letter Russia asked inter alia information on measures and proposals for 
regionalisation (after the decisi on on regionalization was already taken).  
107. First, the difference in treatment of the Ukrainian and EU territory (and the four EU MS 
concerned territories) results in discrimination because in the case of Ukraine a country -wide ban 
was not imposed as a reaction to the notification of an ASF outbreak.  
108. Second, the discrimination is arbitrary and unjustifiable because the difference in treatment 
cannot be explained by a different epizootic status.  
109. Third, for the purposes of the analysis under Art icle 2.3 of the SPS Agreement, the same or 
similar conditions prevailed both in the EU and in Ukraine, because the existence of the ASFV on 
both the Ukrainian and the EU territories was the relevant feature triggering the import prohibition 
imposed by Russ ia on live pigs and certain pig products from the entire EU, on the one hand, and 
the limited territorial import ban on Ukrainian like pig products, on the other hand.  
2.4. Disguised restriction  
110. The phrase "disguised restriction on international trade " has been interpreted by a panel for 
the first time, in the context of Article  2.3 of the SPS  Agreement, in India-Agricultural Products . 
The panel relied on previous observations of the Appellate Body within the context of Article  5.5 of 
the SPS  Agreement . In addition to Article 5.5 of the SPS Agreement further guidance may be 
sought from the previous interpretations reached in the framework of the chapeau to Article  XX of 
the GATT  1994, which contains similar language.  
111. In Australia – Salmon , the Appe llate Body stated that a finding that an SPS  measure is not 
based on a risk assessment is a strong indication that the measure "is not really concerned with 
the protection of human, animal or plant life or health but is instead a trade restrictive measure 
taken in the guise of an SPS  measure, i.e., a 'disguised restriction on international trade'". The 
Appellate  Body also took into account the difference in treatment associated with a certain risk 
between the internal movement of products within the territo ry of a Member and the treatment 
accorded to the same imported products.  
112. First, Russia's ASF measures amount to a disguised restriction on international trade for 
several reasons because Russia's application of drastic measures towards imports from t he EU 
while being far less stringent with regard to the internal movement of domestic products or with 
regard to imports from other countries, including other WTO Members, amounts to a disguised 
restriction on international trade which is clearly dispropor tionate and discriminatory.  
113. Second, Russia's attempt to justify its measures by the OIE standards is a clear misreading 
of the OIE Terrestrial Code and the OIE Terrestrial Manual which clearly allow for regionalization.  WT/DS475/R/Add.1  
 
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  114. Third, Russia did not pr ovide any risk assessment in support of its measures, which is 
required under Article 5.1 of the SPS Agreement for measures that do not "conform to" and are 
not "based on" international standards. Finally, Russia's measures also do not comply with the 
requirements of Article 5.7 of the SPS Agreement as demonstrated in the respective section.  
115. Furthermore, Russia's WTO notifications with respect to the four individual EU Member 
States bans are misleading and constitute evidence that the four measures at issue are in fact 
disguised restrictions on international trade. According to Russia's notifications some of the 
measures at issue are related to food safety and the protection of humans from animal/ plant pest 
or disease.  
116. It follows from the above th at the Russian measures are contradictory, contrary to 
international standards, protectionist, discriminatory and not based on scientific evidence and 
scientific principles, thus constituting a disguised restriction on international trade within the 
meanin g of the second sentence of Article 2.3 of the SPS Agreement.  
3. Article 5.5 of the SPS Agreement  
117. This obligation embodied in Article 5.5 of the SPS Agreement is the principle of 
non-discrimination in risk management, with respect to the risks to huma n, animal or plant life or 
health. According to the Appellate Body, three cumulative conditions have to be met in order to 
establish a violation of Article 5.5: (1) the Member concerned adopts different appropriate levels of 
sanitary protection in several "different situations"; (2) those levels of protection exhibit 
differences which are "arbitrary or unjustifiable"; and (3) the measure embodying those 
differences results in "discrimination or a disguised restriction on international trade".  
118. As long a s ASF transmission through domestically -produced products and through EU 
products are viewed as distinct situations, Russia brea ches the provisions of  Article  5.5, by 
applying different levels of protection without any justification.  
119. It has been prev iously decided that the type of situations envisaged by Article  5.5 are 
comparable  situations, such as "situations involving the same substance or the same adverse 
health effect". In the present case the situations are comparable in the sense that they inv olve the 
same virus and the same health effects.  
120. Finally, the measures embodying the respective differences result in "discrimination or a 
disguised restriction on international trade".  
121. In conclusion, the EU submits that the measures at issue are  inconsistent with the provisions 
of Article 5.5 of the SPS Agreement. In addition, the breach of Article 5.5 results in a 
consequential breach of Article 2.3 of the SPS Agreement.  
F. Claims related to control, inspection and approval procedures  
122. Article 8 and Annex C(1) apply to the procedures dealing with control, inspection and 
approval "which are aimed at checking and ensuring the fulfilment of SPS measures". The EU 
notes that a previous panel found that the failure to observe the provisions of Anne x C implies a 
consequential breach of Article 8 of the SPS Agreement.  
123. Russia wrongfully considers that the EU's claims under Annex C and Article 8 of the SPS 
Agreement fall outside the scope of the mentioned provisions. This assertion is also supporte d by 
the US in its third party submission. According to Russia, the type of procedures covered by Article 
8 refers only to the approval of a product or the use of additives. They do not cover "negotiations 
between Members leading to the adoption of a proce dure".  
124. The Russian assertions are wrong for a number of reasons. First, the language used in 
Article 6.3 of the SPS Agreement, referring to "inspection and…other relevant procedures" is very 
similar to the language used in Annex C and Article 8, which  also refer to "inspection, control and 
approval procedures". Against this background, the EU does not see any reason why there should 
be a different meaning attached to the type of procedures envisaged by Article 8 so as to exclude 
the type of inspections  and other relevant procedures mentioned in Article 6.3. Second, the EU WT/DS475/R/Add.1  
 
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  does not view the acceptance of the regionalization measures as a "negotiation" between two 
different Members. It is rather an objective exchange of information and the decision of the  
importing Member is to be taken with consideration of the objective and rational factors of the kind 
non-exhaustively enunciated in Article 6.2 second sentence of the SPS Agreement.  
125. It follows from the above that the EU claims pursuant to Annex C and  Article 8 fall within the 
type of situations contemplated by those legal texts.  
126. The agreed minutes of the meeting of 7 March 2014 mention that the EU veterinary 
representative "answered all the questions asked by the Russian party". However, the Russ ian 
authorities continued to claim that they need more information in order to reach a decision on 
regionalization. Inter alia , such information requests referred to (1) proof that the historically ASF -
free regions all over the EU are actually free, contra ry to the provisions of the OIE Terrestrial 
Code; (2) detailed information about foreign hunters, who entered the EU Member States to hunt 
wild boar during the period 2013 -2014, detailed by region or (3) detailed information about pig 
farms and meat proces sing factories attested to ship animals and products to the territory of the 
Customs Union.  
127. The measures at issue are contrary to Article 8 and Annex C(1)(a), (b) and (c) of the SPS 
Agreement, because Russia failed and fails to modify the measures at issue in order to permit the 
resumption of imports to Russia of the products at issue from non -affected areas in the EU and/or 
with respect to appropriately treated or processed products. Russia has breached consequently 
Article 8 of the SPS Agreement.  
G. Transparency claims  
128. In Japan — Agricultural Products II , Japan appealed the panel's findings arguing that the 
"regulations" referred to in Annex B(1) are limited to legally enforceable instruments. The 
Appellate Body rejected this appeal and noted tha t the list of instruments contained in the footnote 
to Annex B(1) is not exhaustive in nature. The Appellate Body has noted that a violation of the 
Annex B(1) results in a consequential violation of Article 7 of the SPS Agreement.  
129. The Russian ban with  respect to Lithuania is inconsistent with Russia's obligations under 
Article 7 and Annex B paragraphs 1, 2, 5 and 6 of the SPS Agreement, because certain measures 
at issue were taken by Russia against Lithuania and only notified to the WTO 16 days after t heir 
imposition. Another measure at issue, namely the import ban relating to the entire EU territory, 
has, to the knowledge of the EU, neither been published, nor notified to the WTO.  
130. Inter alia , given that the measures at issue were not substantially  the same as the content 
of the international standards, guidelines or recommendations and given that they had a 
significant effect on trade of the EU and its Member States, Russia failed to publish a notice at an 
early stage in such a manner as to enable interested Members to become acquainted with the 
proposal. It is noted that, insofar as the EU -wide ban is concerned, were it to be the case that 
Russia considered that urgent problems of health protection arose, Russia failed to immediately 
notify other M embers, through the WTO Secretariat, the products covered, with a brief indication 
of the objective and the rationale of the regulation, including the nature of the urgent problem.  
131. In light of the above Russia has b reached the provisions of Annex  B(1), (2), (5) and (6) of 
the SPS Agreement and consequently Article 7 of the SPS Agreement.  
V CONCLUSIONS AND REQU EST FOR FINDINGS  
132. For the reasons set out in this submission, the EU requests the Panel to find that Russia's 
measures, as set out above, are  inconsistent with Russia's ob ligations contained in Articles  2.2, 
2.3, 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 5.4, 5.5, 5.6, 5.7, 6.1, 6.2, 6.3, 7, 8, Annex  B(1), (2), (5), (6) 
and Annex  C(1)(a), (b), (c)  of the SPS Agreement.  
133. The EU respectfully requests th e Panel to recommend that the Dispute Settlement Body 
requests Russia to bring the contested measures into conformity with its obligations under the SPS 
Agreement.  WT/DS475/R/Add.1  
 
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  ANNEX B -2 
SECOND PART OF THE I NTEGRATED EXECUTIVE SUMMARY OF THE ARGUM ENTS OF  THE EUROPEAN UNION  
I  INTRODUCTION  
1. Through its submissions and statements in the present proceedings, the EU has 
demonstrated that the Russian measures at issue lack scientific justification and are clearly 
disproportionate. The EU provided solid evidence with respe ct of each of its claims.  
2. Russia has not managed to explain why the measures it has taken against the products at 
issue from the EU are justified. Russia put forward different allegations which may be distilled into 
four main themes: the in -existence of  the EU -wide ban; conformity of its measures with 
international standards; presentation of its measures as emergency measures; and insufficiency of 
information under the regionalisation provisions. These four main aspects of Russia 's defence must 
all fail.  
II  FACTUAL ASPECTS  
A. The measures at issue  
3. The EU notes that the Parties do not dispute that the four individual bans with respect to 
Lithuania, Poland, Latvia and Estonia are SPS measures within the meaning of Annex 1(a) of the 
SPS Agreement.  
4. The EU also notes that the Parties do not dispute that the measures taken by Russia with 
respect to Latvia and Estonia are within the Panel 's terms of reference, even if they correspond to 
or post -date the date of the panel request. In practice, the two indiv idual measures extended the 
ban to processed products with respect to the two mentioned EU Member States.  
5. With regard to the EU -wide ban, the EU recalls that the Parties in fact agree on the existence 
of the measure at issue. What the EU calls the EU -wide ban is referred to by Russia as "provisional 
compliance with the terms of the veterinary certificates ". 
6. As explained in our previous submissions, Russia attempts to justify the EU -wide ban by 
arguing that it cannot return to a situation where veterin ary export certificates are discussed 
bilaterally with individual EU Member States, and Russia apparently considers that this should 
somehow be imputable to the EU. In making this argument, Russia acknowledges the existence 
and precise content of the EU -wide ban. It also acknowledges that the EU -wide ban is attributable 
to Russia.  
7. Russia is simply wrong to suggest that anything on the record supports its assertion that the 
EU has, by implication, relinquished its right to bring this matter before a panel , pursuant to the 
terms of the DSU.  In EC – Bananas III (Article 21.5 – Ecuador II)  the Appellate Body has made it 
very clear that Members cannot be considered to have relinquished their DSU rights other than 
expressly and unequivocally. There is no such specific commitment undertaken by the EU not to 
challenge certain Russian measures  
8. According to Article 6.1 of the SPS Agreement, WTO Members are under a continuing  
obligation of adaptation  to regional SPS characteristics. It is in this context that the  reference to 
the veterinary certificates in Russia 's accession documents should be understood. The fact that the 
veterinary certificates remain in use after Russia 's accession is a distinct element from the fact 
that the terms of such certificates should be continuously adapted to the SPS characteristics of 
specific regions in particular cases.  
9. It is also important to recall that Russia chose to obstruct the process of clarifying the export 
certificates in light of the current situation by referring to its arrangements within the framework 
of the Customs Union with Belarus and Kazakhstan.  WT/DS475/R/Add.1  
 
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  10. Finally, Russia 's allegation that the EU -wide ban does not constitute an SPS measure within 
the meaning of Annex A(1) must also fail. The EU -wide ban is clearly wit hin the purview of Annex 
A(1) of the SPS Agreement, which contains a broad definition of an SPS measure.  
B. The products at issue  
11. The EU understands that the EU – wide ban covers live pigs and products of pig origin 
covered by the certificates for expo rt from the EU to Russia and that include the phrase "African 
swine fever – during the last 3 years in the territory of the EU Member State excluding Sardinia", 
with the exception of products having undergone treatment as explained in the EU 's responses to  
Panel questions 77 and 271, where it describes the products covered by the individual bans and 
the EU wide ban.  
12. Examples of products covered by the EU wide ban are available in the list of returned 
consignments provided by Russia for the first semeste r of 2014: pig offal, frozen pork, frozen pig 
skin. A few weeks after the introduction of the measures at issue there were no longer instances of 
rejected consignments. Evidently, no operator is going to incur the ruinous costs of consigning 
shipments to t he Russian border in the knowledge that they will be refused entry.  
C. ASF eradication in wild boar  
13. The individual experts confirm the EU 's position concerning drastic hunting intended to 
exterminate the wild boar. The EU considers that the hunting pre ssure and hunting practices 
should remain constant in order to not increase (and rather decrease) the spread of the ASFV.  
14. The individual experts could not point to significant evidence of wild boar infected with ASF 
(or diseases equivalent to ASF) migr ating outside their normal home range in the natural habitats 
found in and immediately adjacent to the recently affected areas in the EU. Excluding factors 
linked to human intervention, the individual experts do not expect the range of wild boar to 
change significantly, and with respect to a significant population, in a relatively short space of 
time.  
15. Further developing this idea, Professor Mary Louise Penrith considers that wild boar may 
travel outside their normal home range primarily due to human in tervention, like drastic hunting. 
The finding of dead wild boars along the border with Belarus may be the consequence of heavy 
hunting pressure on the Belarussian side. The virus isolated from the dead wild boars in the EU 
proved identical to the virus cir culating in Belarus.  
16. The individual experts disagreed with Russia 's contentions that its domestic measures, like 
the shooting of wild boars, are effective. The most recent ASF EFSA Scientific Opinion confirms the 
EU's position and recommends targeted hunting, giving priority to adult and sub -adult females. It 
is interesting to note that in its responses to the Panel questions Russia seems to change its 
position and acknowledge the value of EFSA's approach.  
D. Certain measures related to domestic pigs  
17. Under EU rules it is not possible that meat from pigs slaughtered by small backyard farmers 
on their own premises  is placed on the EU market or exported to third countries. That meat cannot 
be certified by veterinary services for any kind of dispatch or  consumption other than 
direct/immediate home/domestic consumption (Regulation 853/2004).  
18. From an animal health point of view, there is no reason why abattoirs  approved for export 
may not slaughter animals that are in compliance with EU rules, includin g if the animals come from 
backyard farms located in non -restricted areas. This is in line with the idea, highlighted by Dr 
Brückner, which simply put states that "free means free". Accordingly, in principle any 
establishment located in a free area should be free to trade its live animals or pork products 
regardless of where these animals are kept. However, there are a number of caveats to this 
concept in practice.  
19. The EU legislation on food safety hygiene rules applicable to pig meat (Regulation 852/20 04 
on the hygiene of foodstuffs, Regulation 853/2004 laying down specific hygiene rules for food of WT/DS475/R/Add.1  
 
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  animal origin and Regulation 854/2004 laying down specific rules for the organisation of official 
controls on products of animal origin intended for human c onsumption) ensures the application of 
basic common hygiene requirements throughout the food chain, starting with primary production. 
Those rules apply to any food business operator, like an abattoir, independently of whether that 
particular operator has b een approved for export to Russia or elsewhere.  
20. Free movement of goods within the EU should, in no way, be taken to mean that there is an 
absence of controls with regard to the intra -EU trade in the products at issue. With regard to trade 
in the produc ts at issue  across state borders inside the EU, Directive 64/432 contains a set of 
harmonized measures related to animal health problems affecting intra EU trade in swine, while 
intra EU trade in porcine semen is regulated under Directive 90/429. Directive  64/432 makes 
reference to the rules laid down in the framework legislation (Directive 90/425 concerning 
veterinary and zootechnical checks applicable in intra -EU trade in certain live animals and products 
with a view to the completion of the internal mark et), in particular with respect to checks at origin, 
to the organization of, and follow -up to, the checks to be carried out by the country of destination, 
and to the safeguard measures to be implemented  
III.  CLAIMS  
A.  Claims related to harmonization  
21. As already explained in our previous submissions, the EU is not required to demonstrate that 
its control measures are in accordance with the OIE Terrestrial Code – it is Russia that asserts that 
its SPS measures ( "the measures at issue" ) are in conformity with or are based on the OIE 
Terrestrial Code and attempts to draw the benefits of the rebuttable presumption in Article 3.2. 
However, the EU has proved that its ASF regionalisation measures are in accordance with the OIE 
Terrestrial Code.  
22. Russia's mea sures at issue do not conform to and are not based on the relevant OIE 
standards. With regard to the measures at issue , the panel in US-Animals  reiterates that a 
measure which actually contradicts the international standards cannot be said to be based on t he 
respective standards.  
23. This reasoning is relevant in the context of the present case, as Russia 's measures at issue 
contradict the very standards they claim to be following. While the relevant international standards 
recommend trade from ASF -free ar eas in several products at issue, or trade in products which 
have been treated so as to ensure the destruction of the ASFV, Russia does exactly the contrary 
and bans trade from ASF free areas in the EU and bans processed products from the four partially 
affected EU Member States.  
24. The relevant international standards in Chapter 15.1. for the products at issue from the EU 
(either subject to the individual bans only or to both the EU -wide ban and the individual bans) are 
found in Articles 15.1.1. -15.1.4., 15.1.5., 15.1.8., 15.1.10., 15.1.12. - 15.1.16. of the OIE 
Terrestrial Code.  
25. Russia attempts to explain its non -conformity with the OIE standards by essentially referring 
to the "impact of sequencing provisions" and to the "dynamic disease developments"  which should 
in its opinion bear on the interpretation of "conform to" in Article 3.2 of the SPS Agreement.  
26. With regard to the "sequencing provisions", the EU complies with the OIE regionalisation 
recommendations as contained in Articles 4.3.2., 4.3. 3.1., 4.3.3.5. and 4.3.3.6. of the OIE 
Terrestrial Code.  
27. With regard to the "dynamic disease developments", Russia in essence contends that the 
limited geographical spread of ASFV within the four EU Member States should be associated to a 
continuous ne ed of re -considering the submitted information, which should be updated with new 
information. The EU recalls that besides providing the information which together constitutes the 
EU's biosecurity plan as early as of February 2014 (except the mid to long te rm measures provided 
in the eradication plans), the EU constantly provided to its main trade partners, including to 
Russia, communications with the latest ASF developments, including coloured maps, by means of 
faxes and e -mail messages. In addition, almost  monthly presentations by the affected EU Member WT/DS475/R/Add.1  
 
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  States in the PAFF Committee were posted on the European Commission's official website, in a 
transparency exercise not matched by many countries in the world, and not matched by Russia.  
28. In light of the a bove, Russia 's allegation of conformity of the measures at issue with the 
relevant international standards within the meaning of Article 3.2 should be dismissed, as the OIE 
Terrestrial Code recommends trade from the ASF -free areas and not the imposition of  bans.  
B.  Claims related to risk assessment  
1.  Articles 5.1, 5.2 and 2.2 of the SPS Agreement  
29. Russia 's measures do not "conform to " and are not "based on " the OIE recommendations. 
The EU would like to recall that a WTO Member may go beyond the releva nt OIE standards, 
provided that it conducts a risk assessment within the meaning of Article 5.1 of the SPS 
Agreement. As of today, 20 months after the initial ban, Russia has not produced any risk 
assessment, attempting to rely instead on an alleged compli ance with the OIE standards. The EU 
has demonstrated that this is misconceived.  
30. The EU explained that the Appellate Body in India- Agricultural Products  and the panel in 
US-Animals  confirm that a violation of Article 5.1 leads to a presumption of incon sistency with 
Article 2.2 of the SPS Agreement, where the conditions in Article 5.7 are not fulfilled.  
31. As explained in the Closing Statement at the second substantive meeting, Russia's 
"evidence" does not constitute an objective and scientific basis fo r the measures at issue. In 
particular, Russia misconstrues the notion of disease prevalence, misrepresents the 2015 EFSA 
ASF Scientific Opinion, as well as a response of professor Penrith, and culminates by presenting a 
picture of wild boar "jaywalking" o n the streets of Riga, Latvia, an ASF free area.  
2.  Article 5.7 of the SPS Agreement  
32. It is clear that the measures at issue do not conform to and are not based on the OIE 
standards. It is equally clear that Russia did not conduct, does not have and di d not provide the 
Panel and the EU with any risk assessment as required by Article 5.1 of the SPS Agreement.  
33. The one and the only provision in the SPS Agreement which may still shelter a Member 's 
measures in such circumstances is Article 5.7 of the SPS  Agreement. But Russia does not fulfil any 
of its requirements:  
- the relevant scientific information is sufficient and it was provided by the EU to Russia, through 
numerous letters, emails, faxes, meetings and inspections;  
- the Russian measures were not  adopted on the basis of available pertinent information, but 
rather ignoring  the available pertinent information; for instance, Russia attempted to draw 
conclusions from the mere imposition of bans by other WTO Members, instead of rather closely 
scrutiniz ing their underlying scientific evidence  and of rather observing that none of the numerous 
EU trade partners allowing trade to continue did suffer any ASF introduction;  
- Russia did not seek to obtain the additional information necessary for a more objecti ve 
assessment of risk, but rather asked for information which was not necessary, like proof of ASF 
freedom for the EU Member States historically free  according to the provisions of the OIE 
Terrestrial Code; and  
- Russia did not review its measures accordin gly within a reasonable period of time; the more time 
passes by, the more apparent Russia's failure to comply with Article 5.7 becomes, and the more 
egregious its breach of Article 5.1 and the other relevant provisions of the SPS Agreement.  
34. The EU agre es that the sufficiency of the relevant scientific evidence should be assessed 
with respect to the time the SPS measure is adopted. However, the EU draws the Panel's attention 
to the fact that afterwards the respective Member is under an obligation to seek  to obtain 
additional information for a more objective assessment of risk as per Article 5.7.  WT/DS475/R/Add.1  
 
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  35. The moment when the respective Member is asking for information which is not necessary 
for a more objective assessment of risk, including the type of informat ion characterized by the 
individual experts in the present proceedings as an "overkill" or as an attempt to "muddy the 
water", that Member can no longer benefit from the provisional shelter of Article 5.7 (see Russian 
letters of 5 February and 12 March 201 4). 
36. According to Article 5.7 of the SPS Agreement, an importing Member is not absolved of any 
obligation in an emergency situation. Instead, what Article 5.7 envisages is a "less" objective 
assessment of risk,  as opposed to a "more objective assessment  of risk ", which shall trigger the 
review of its sanitary measure within a reasonable period of time. This "less" objective assessment 
of risk is not attributable to any bias, but is linked to the objective fact that the relevant scientific 
evidence is ins ufficient for the purposes of making a definitive decision. Thus, in an emergency 
situation the importing Member is not compelled to perform a risk assessment within the meaning 
of Article 5.1, but rather to conduct a "less" objective assessment of risk  within the meaning of 
Article 5.7.  
37. In this particular case the issue is not a general lack of scientific knowledge about the 
disease or issue under consideration. The EU has provided vast amounts of information about the 
actual situation on the ground a nd its control measures.  
38. The available pertinent information may fall within the categories described in Article 5.2: 
available scientific evidence; relevant processes and production methods; relevant inspection, 
sampling and testing methods; existenc e of disease -free areas ; relevant ecological and 
environmental conditions; and quarantine or other treatment. However, due to the time 
limitations, the importing Member is under no obligation to take into account these factors in a 
similar way as under Art icle 5.1 of the SPS Agreement.  
39. Similarly to the connection between Articles 5.1 and 5.7 through the concept of a "less" 
objective assessment of risk, we consider that Articles 5.6 and 5.7 are connected in the same way, 
insofar as they at least inform e ach other contextually. Thus, if, as a matter of fact, a panel is 
faced with a measure that the importing Member is attempting to shield under Article 5.7, but that 
measure is manifestly unnecessary and disproportionate, that would be pertinent to determin ing 
whether or not the measure is in fact based on pertinent information, or whether it is rather a 
disguised restriction on international trade. Thus, it would be capable of supporting the conclusion 
that the measure breaches both Article 5.7 and Article 5.6. 
40. Accordingly, the EU considers that even in emergency situations such as those envisaged by 
Article 5.7 the measures taken by the importing Member should not be disproportionate to the 
risks, in the sense that it should be necessary, taking into ac count any available alternatives. A 
rational relationship should exist in any case. This analysis may also be supported by the Panel 's 
findings related to the non -discrimination claims, raised under Articles 2.3 and 5.5.  
41. Russia 's difference in treatmen t of Ukraine and Belarus in comparison to the EU with respect 
to similar situations is relevant in the context of Article 5.7.  Indeed, the EU does not consider that 
there is any basis in the available pertinent information for discriminating between EU an d Ukraine 
or Belarus with regard to the ASF regionalisation measures.  
42. Furthermore, the EU considers that Russia 's Acceptable Level of Protection (ALOP) cannot be 
deduced from the measures at issue. However, assuming arguendo  that a rather high ALOP can  be 
deduced from the respective bans, then Russia maintains different ALOPs in comparable  situations, 
as it clearly has a rather low ALOP with respect to ASF in Russia according to the evidence on the 
record.  
43. In light of the above, it clearly follows t hat Russia cannot provisionally shelter its measures 
under Article 5.7 of the SPS Agreement.  
C.  Claims related to regionalisation  
1.  Containment zones are not the only form of ASF regionalisation according to the OIE 
Terrestrial Code  WT/DS475/R/Add.1  
 
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  44. The EU has neit her established containment zones nor compartments within the meaning of 
Chapter 4.3 of the OIE Terrestrial Code.  
45. The EU has delimitated between areas considered to be infected with ASFV and ASF -free 
areas. The establishment of containment zones within the meaning of Article 4.3.3.3. of the OIE 
Terrestrial Code is not the only possible tool in applying regionalisation, but only a possible option. 
If the establishment of containment zones would be the only possibility under the OIE Code, in 
practice tha t would amount to almost an impossibility of effectively controlling diseases like 
bluetongue through the use of regionalisation.  
46. Russia itself accepted straightforward regionalisation in the case of the Classical Swine Fever 
(CSF) occurrence in Latvia  in December 2013. The EU recalls that differently from the ASF chapter, 
which does not contain any express reference to containment zones, the CSF chapter contains 
such a reference in Article 15.2.5., entitled "Establishment of a containment zone within a  CSF free 
country or zone ". The EU did not establish containment zones following CSF cases in wild boar in 
Latvia during the period November 2013 - January 2014. Instead, the EU used a straightforward 
concept of regionalisation, which did not prevent Russia  from lifting a previous ban with respect to 
the entire territory of Latvia on 16 December 2013.  
47. After receiving the responses of the individual experts and of the OIE to the Panel questions, 
Russia has finally conceded that containment zones are not t he only form of regionalisation which 
can be established in the case of ASF by an exporting country in conformity with the OIE 
Terrestrial Code.  
48. In the OIE Terrestrial Code the concept of zoning is broad. It includes protection and 
containment zones b ut is not limited to these two possibilities. It also includes, for example, 
infected zones, zones that are free of disease with or without vaccination, zones that are officially 
recognized by the OIE for certain diseases, and seasonally free zones for oth er diseases. Various 
applications of the zoning concept are found in the disease specific chapters as appropriate to the 
epidemiology of each disease.  
49. One of the recurring themes in Russia 's submissions is the so -called "lack of adequate 
mandated stand still, i.e. restrictions on movements of animals and other commodities by EU 
legislation ". Russia invokes Article 4.3.3.3.(a) of the OIE Terrestrial Code whereas the EU did not 
establish containment zones.  
50. However, the EU has taken the appropriate mea sures. As a general rule, and on top of the 
main control measures, the EU instituted a prohibition on the dispatch of live pigs, porcine semen, 
ova and embryo, pig meat, pig meat preparations, pig meat products and any other products 
containing pig meat as  well as consignments of animal by -products from porcine animals from 
certain areas listed in the Annex to the Decision 2014/178 and then Decision 2014/709 (i.e. the 
prohibition on the dispatch of live pigs apply to areas listed in Parts II, III and IV of the Annex, 
other prohibitions apply to areas listed in Parts III and IV of the Annex).  
51. The derogation from the prohibition on the dispatch of live pigs from the areas listed in Part 
II of the Annex, as well as the derogation from the prohibition on th e dispatch of consignments of 
live pigs for immediate slaughter from the areas listed in Part III of the Annex, and the dispatch of 
consignments of pig meat, pig meat preparations and pig meat products obtained from such pigs 
are subject to strict biosecur ity measures.  
52. With regard to animal by -products, the EU Member States concerned may authorise the 
dispatch of unprocessed carcases of pigs other than feral pigs and of animal by -products of porcine 
origin from areas listed in Part III of the Annex only  to a processing, incineration or co -incineration 
plant located outside the areas listed in Part III of the Annex, subject to strict conditions. The 
same Decision in its Article 10 also provides for a Prohibition on the dispatch to other Member 
States and third countries of consignments of animal by -products from porcine animals from the 
areas listed in the Annex.  
53. In addition to the above -mentioned provisions in Decision 2014/709, the national 
eradication plans also contain such additional biosecurity r equirements. The EU has provided as 
examples several such provisions in the national eradication plans.  WT/DS475/R/Add.1  
 
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  54. It follows from the above that the EU ASF regionalisation measures are robust, giving us a 
high degree of confidence in their adequacy.  
2.  The OIE Terrestrial Code does not recommend only compartmentalisation in the case 
of ASF  
55. Russia's initial construction relied on containment zones as the only form of ASF 
regionalisation under the OIE Terrestrial Code. As a consequence of the EU's "failure" to  establish 
containment zones (and thus the rest of the territory not being considered ASF free), Russia 
claimed that the only solution was to adopt compartmentalisation . The two arguments are 
interconnected. But this construction is wrong. If regionalisati on is not limited only to containment 
zones, then one does not need compartmentalisation as a consequential option at all, as long as 
the ASF regionalisation is correctly conducted by the EU.  
56. As Dr Alejandro Thiermann stated during the meeting with the  experts, "a compartment is 
really not the approach for a disease like African swine fever". The same expert explained that he 
is aware of only one case of compartmentalisation, for a different disease (avian influenza).  
57. Similarly to India- Agricultura l Products , Russia 's misinterpretation of the OIE Terrestrial 
Code attempts to identify a "condition of entry " according to which an importing Member has 
discretionary choice regarding control measures. The Appellate Body has confirmed that a correct 
interpretation of the OIE Terrestrial Code does not mean that the importing country may impose 
on the exporting Member compartmentalisation instead of regionalisation.  
3.  Russia violates Article 6.1 of the SPS Agreement by not taking into account the similar 
status of certain areas in the EU and in Russia and by not adapting its measures to the 
ASF situation in the EU  
58. Article 6 of the SPS Agreement addresses the adaptation to regional conditions, including 
disease -free areas. Adaptation to the regional cond itions is a factor which should be taken into 
account for the purposes of conformity with international standards within the meaning of Article 
3.2 of the SPS Agreement, as long as the relevant international standards recommend 
regionalisation.  
59. Moreove r, should a Member not conform to or base its measures on international standards, 
it has the possibility to conduct a risk assessment, as appropriate to the circumstances, within the 
meaning of Article 5.1. In conducting such a risk assessment, one of the  relevant factors 
mentioned in Article 5.2 is the existence of disease -free areas. Even in emergency situations of the 
kind contemplated in Article 5.7, the importing Member should take into account the same 
category of data mentioned in Article 5.2, but t o a different extent.  
60. The panel report in US-Animals  states that "if a particular area within the territory of an 
importing Member has a similar SPS status as the area of origin of a product (e.g. has the same 
level of prevalence of a given disease), t hat Member may be required to tailor its measure by 
relaxing the restrictions on imports into that area". The individual experts have also recognized the 
importance of this adaptation.  
61. Furthermore, in the circumstances of the present case, the EU has u nderstood that there are 
regions in Russia where wild boars do not occur. To the extent to which domestic pigs also do not 
occur in those regions, the introduction of the products at issue would not present ASF -related 
sanitary risks and importation to con sumers in those regions should be allowed. Because in Russia 
there are no domestic borders, one solution may be that the products at issue (especially raw 
products) are imported under customs supervision. This may ensure that such raw products reach 
the pr ocessing plants which may need them, without any risk that they will be disseminated as 
raw products in other parts of Russia.  
4.  Russia does not recognize the concept of disease -free areas with respect to the ASF 
regionalisation measures in the EU, contr ary to Article 6.2 of the SPS Agreement  
62. In India- Agricultural Products, the Appellate Body has described the relationship between all 
three paragraphs of Article 6 and especially between Articles 6.1 and 6.2. Accordingly, the WT/DS475/R/Add.1  
 
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  recognition of the concep t of disease -free areas under Article 6.2 should not be understood in 
abstract terms, but as reflected in the measure at issue.  
63. In its First Written Submission, Russia has devoted considerable space explaining that its 
legislation "recognizes the conc ept of disease -free areas in the abstract, pursuant to Article 6.2 of 
the SPS Agreement ". Russia contends that this dispute can be distinguished from 
India-Agricultural Products  due to the explicit recognition of regionalisation in its legislation. It 
further notes that the memorandum of 2006 and the bilateral certificates in use before  the 
occurrence of the ASF cases and outbreaks in the four recently affected EU Member States also 
demonstrate that Russia recognizes regionalisation.  
64. Comparing Russia 's understanding of "recognition " with the recent guidance from the 
Appellate Body, it is clear that Russia is actually in breach of its obligations under Article 6 of the 
SPS Agreement. Indeed, 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.  
65. In the same vein, the EU agrees with the panel 's finding in India- Agricultural Products and 
with Australia's proposition that for a measure to comply with Article 6.2 it must at least not deny 
or contradict the recognition of such ar eas.  
66. However, Russia extended the same reasoning applicable to its abstract recognition of 
disease free areas in its legislation to the recognition of such areas in the relevant veterinary 
certificates, explaining how it chose to "provisionally comply  with the terms of these veterinary 
certificates ". 
67. Instead of "provisionally " complying with the terms of the veterinary certificates, Russia was 
under an obligation pursuant to Article 6.1 of the SPS Agreement to adapt  its measures to the 
sanitary cha racteristics from which the products at issue originate and to which they are destined.  
The measure called by Russia "provisional compliance with the terms of the veterinary certificates " 
is in fact the measure identified by the EU as the EU -wide ban.  
68. Russia incorrectly asserts that "with respect to the four ASF -infected countries, the EU 
Member States notified to the OIE that the ASF outbreak affects the whole territory ". Instead, 
Russia should know very well as a user of the OIE WAHIS that upon the first occurrence of a 
disease in a previously free country, even if there is only one isolated case, the notification should 
pertain to the whole territory of that country, as confirmed by the OIE itself in a document entitled 
Notification Procedure.  
69. Russia did not take into account factors of the kind non -exhaustively mentioned in Articles 
6.1 and 6.2 of the SPS Agreement in order to recognize  the concept of disease -free areas with 
regard to ASF in the EU and to adapt  its measures accordingly. In part icular, Russia failed to take 
into account factors such as geography, ecosystems, epidemiological surveillance, and the 
effectiveness of sanitary controls.  
70. The factors mentioned in Article 6.2 of SPS Agreement are reflected in Article 9(2) of 
Directive  2002/60.  
71. With regard to geography , Article 4.3.3.1. of the OIE Terrestrial Code states that "the extent 
of a zone and its geographical limits should be established by the Veterinary Authority on the basis 
of natural, artificial and/or legal boundaries , and made public through official channels".  
72. The EU recalls that it explained to Russia that the distances between the limits of the areas 
where restrictions apply and the locations where infected wild boars were found are several times 
wider than the  distance such animals could be expected to travel, according to the EFSA ASF 
Scientific Opinion 2010, which was communicated to Russia as an annex to the letter of 7 February 
2014. Also, with the letter of 13 June 2014 the EU further explained that beside s the distance from 
the disease cases, other factors were taken into account. Several of the numerous faxes and 
communications sent to EU's main trading partners, including Russia, contained relevant maps. WT/DS475/R/Add.1  
 
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  Similarly, detailed information on the implementat ion of the ASF regionalisation measures was 
provided by the EU Member States in the PAFF Committee.  
73. In March 2015 the European Commission provided Russia with copies of the eradication 
plans of Lithuania and Poland and in April 2015 the eradication pl ans of Estonia and Latvia 
followed, all referring to delimitation of the infected areas. Russia has also received a document 
containing the detailed administrative regions in Poland as part of the Polish contingency plan 
attached to the letter of 21 May 20 14. 
74. With regard to ecosystems  it is relevant to ascertain the capacity of a biotope or habitat to 
sustain a susceptible population and the degree of concentration/dispersion. This is a relevant 
factor to the present case because of the wild boar presen ce. Also, human intervention in the 
ecosystem, in particular by managing practices such as hunting and feeding wild boars is essential 
to understanding how the ecosystem has been considered by the EU when applying regionalisation 
and claiming disease free status. The EU Member States regularly described the applicable 
measures in the publicly available presentations in the PAFF Committee.  
75. The intensity and effectiveness of the EU 's epidemiological surveillance  should have been a 
key element in Russia 's analysis of the EU ASF regionalisation measures. The combination of active 
and passive surveillance, with special emphasis on the areas at risk located relatively close to the 
disease cases already identified, provide a very solid reassurance that the limi ts of the ASF -free 
zones and the zones considered to be affected are properly demarcated.  
76. Russia claims that the EU failed to adequately increase surveillance after the ASF outbreaks, 
relying on an early audit report carried out by the European Commiss ion in Lithuania in April 2014. 
The EU explained in detail how Lithuania took into account the FVO audit, including as reflected in 
the eradication plan.  
77. During the meeting with the experts Dr Alejandro Thiermann explained, in the context of 
wild boar hunting, that the EU surveillance system is among the best in the world. Underreporting 
is much less likely to happen in the EU than in other parts of the world.  
78. The effectiveness of the sanitary controls  has been repeatedly demonstrated at different 
levels. The disease control measures put in place after the occurrence of the few outbreaks 
reported proves that the contingency plans and the control measures applied in holdings are highly 
effective as no further outbreaks have been reported as secondary outbreaks in Lithuania and 
Latvia since September 2014 because all outbreaks were properly extinguished.  
79. In addition, the sanitary controls at the external borders with infected pork products from 
Belarus seized, together with awareness campaigns, have  minimised the risk of ASF introduction 
through that route.  
80. The list of factors enunciated in Article 6.2 is non -exhaustive. A similar relevant factor may 
be the epidemiology of the disease, which is related to the characteristics of the disease agent and 
of the host species. It is important to note that there is no evidence of soft ticks ( Ornithodoros sp. ) 
being involved in the epidemiology of the disease in the four recently affected EU Member States. 
Furthermore, the existence of a single host specie s (pigs) makes the epidemiology simpler than 
other diseases affecting pigs and ruminants (like FMD).  
81. Russia maintains that the EU failed to take significant actions to eliminate backyard 
production in the four ASF -infected EU Member States. The EU does  not believe that total 
elimination of backyard production is necessary. Even before ASF reached the EU, as early as of 
2013, the EU has taken measures to reduce backyard production under low biosecurity conditions 
in certain risk areas, in particular Deci sion 2013/498.  
82. In light of the above, an objective assessment of factors such as geography, ecosystems, 
epidemiological surveillance, the effectiveness of sanitary controls and the ASF epidemiology 
should have easily led Russia to reaching a conclusion  on the appropriateness of the EU ASF 
regionalisation measures.  By not taking into account these factors, Russia failed to determine 
disease free areas on the basis of the mentioned factors and breached its obligations under Article 
6.2 of the SPS Agreeme nt. WT/DS475/R/Add.1  
 
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  83. The situation in the present case is in fact similar to that in India-Agricultural Products  and 
the EU respectfully requests the Panel to find that Russia does not recognize the concept of 
disease free areas with respect to ASF in the EU. As a cons equence, Russia also fails to adapt its 
measures to the sanitary characteristics of the areas from which the products at issue originated 
and to which the products are destined, within the meaning of Article 6.1 of the SPS Agreement.  
5.  The EU adduced all  the necessary evidence as per Article 6.3 of the SPS Agreement  
84. The EU has explained that the relevant date for the purpose of WTO proceedings is the date 
of the panel establishment. With the exception of certain situations falling under the SCM 
Agreem ent, this has been the practice of previous panels and of the Appellate Body. However, this 
does not mean that subsequent developments are not relevant. Subsequent developments may be 
relevant to the extent that they confirm the facts and evidence as of th e date of panel 
establishment and should be limited to those instances when due process is respected and Parties 
have the opportunity to properly discuss that evidence. In making "an objective assessment of the 
matter before it" within the meaning of Artic le 11 of the DSU, a panel may not arbitrarily chose a 
cut-off date. By choosing an arbitrary date, a panel cannot contribute towards "securing a positive 
solution of the dispute" as per Article 3.7 of the DSU.  
85. The EU submits that at any point in time,  including after the date of the panel 
establishment, Russia failed to adapt the measures at issue to the sanitary conditions in the 
exporting and in the importing countries, as required by Article 6.1 of the SPS Agreement. More 
than 20 months after the ad option of the measures at issue, Russia has not conducted any risk 
assessment, be it more or less objective.  
86. The EU has provided the necessary evidence to the Russian authorities in order to 
demonstrate that ASF free areas are free and are likely to re main ASF free. During the meeting 
with the individual experts, Dr Gideon Brückner explained that a free zone should always be 
judged taking into account the current status of the zone.  
87. The EU 's ASF regionalisation measures are designed is such a way so  as to guarantee to our 
trade partners, including Russia, that at any point in time  products at issue come from an ASF free 
area, according to the requirements of Article 6.3 of the SPS Agreement. The adaptation condition 
in Article 6.1 is a continuous obl igation and importing Members should take that into account. 
However, an importing Member cannot unduly delay the regionalisation recognition proceedings 
under the pretext of re -confirmation and update of the information.  
88. The EU timely provided to Russ ia information that can be rationally and reasonably expected 
in the circumstances. However, Russia came back with requests for information described by the 
experts as an "overkill"  and a possible attempt to "muddy the water" . It required an 
unprecedented level of details, which is clearly unreasonable (e.g. letters of 5 February and 12 
March 2014).  
89. The EU explained that there are two tiers of EU ASF measures: the general ASF legislation 
(Directive 2002/60) and the specific measures delimitating differe nt Parts according to different 
levels of risk (Decisions 2014/178, 2014/709). Russia claimed that eradication plans were 
necessary in order to enable it to reach a conclusion on the EU ASF regionalisation measures.  
90. The EU further clarified that eradic ation plans are medium to long term strategy documents 
and that immediate measures were already put in place as per the requirements of Article 15 of 
Directive 2002/60. The national eradication plans were not necessary to Russia in order to conduct 
its ris k assessment, although they may be taken into account when available. This means that 
once the eradication plans are available an importing country may revise its risk assessment in 
light of the adaptation condition in Article 6.1 of the SPS Agreement.  
91. The EU provides several types of evidence in support of the implementation of the measures 
required by Directive 2002/60 in the four partially affected EU Member States following the first 
cases of ASF in wild boar and the outcomes evaluation of their eff ectiveness:  
- prompt communications from the affected EU Member States to the other EU Member States and 
major trading partners, including Russia, often containing relevant maps;  WT/DS475/R/Add.1  
 
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  - detailed updates on the ASF situation in the regulatory Standing Committee on Plants, Animals, 
Food and Feed (PAFF), providing the opportunity for peer review by the other EU Member States 
(almost on a monthly basis and publicly available);  
- transparent audits regularly carried out by the European Commission's Food and Veterinar y 
Office (FVO);  
- the EU Treaties provide for the possibility for the European Commission to initiate infringement 
proceedings against the EU Member States which fail to fulfil their obligations under EU law.  
D.  Claims related to risk management  
92. Article 2.2 is a more general provision and Articles 5.1, 5.2 and 5.6 are more specific 
provisions. This understanding is confirmed with regard to the relationship between Articles 2.2 
and 5.6 by previous panels. It follows that a finding of violation of Articl e 5.6 with regard to risk 
management will consequentially result in a violation of Article 2.2 of the SPS Agreement, more 
precisely with regard to the necessity requirement.  
93. Where a relevant international standard provides for alternative requirements – "ASF free 
country, zone or compartment", an importing Member must accept products that meet one or 
more of the identified alternatives in order to "conform to" the international standard, on the basis 
of objective criteria of the kind described in Articl e 6.2 second sentence of the SPS Agreement. 
Contrary to what Russia seems to believe, a country may not choose ASF -free zones or 
compartments according to its ALOP. The three elements described in the international standards 
"ASF free country, zone or comp artment " are related to the objective characteristics of the ASF 
situation and not to the subjective choice of the importing Members.  
94. The reasonably available alternatives are compliance with the relevant OIE standards. 
Accordingly, instead of an EU -wide ban and four individual EU Member States bans, Russia should 
allow trade in the products at issue from the EU.  
 
95. The panel in India- Agricultural Products  considered that the OIE Terrestrial Code provides 
for an optimal level of biosecurity, under which safe trade may be facilitated in order to prevent AI 
from being introduced into an importing country. Similarly, the OIE Terrestrial Code also provides 
for a level of sanitary security under which safe trade may be  facilitated in order to prevent 
infection with ASFV. The Appellate Body then confirmed that the OIE Code, if applied correctly, 
provides for less trade restrictive measures to country -wide bans in its product -specific 
recommendations.  Products at issue from the EU   relevant international standard  
live pigs, pig genetic material  15.1.1. –15.1.4.; 15.1.5.; 15.1.8., 15.1.10.  
end products containing pork  15.1.1. -15.1.4.; 15.1.12; 15.1.14; 
15.1.15.  
meat of wild boar  15.1.1. –15.1.4., 15.1.13., 15.1.14.  
pork 15.1.1. -15.1.4.; 15.1.12.  
raw pork products  15.1.1. -15.1.4.; 15.1.12.; 15.1.14.  
bristles  15.1.1. -15.1.4.; 15.1.16.  
feed stuffs and feed additives for pigs  15.1.1 -15.1.4.; 15.1.14.; 15.1.15.  
hunter's trophies without full taxidermy 
treatment  15.1.1 – 15.1.4.; 15.1.14.  WT/DS475/R/Add.1  
 
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  96. In light of the above, it follows that Russia does not comply with the requirements in Article 
5.6 and footnote 3, as the EU demonstrated that following the OIE standards and recognizing 
regionalisation would constitute a significantly less trade restrictive alternative m easure.  
E.  Discrimination claims  
1.  Article 2.3 of the SPS Agreement  
97. The EU recalls that in US-Animals  the US competent authorities provided a quicker 
recognition of regionalisation measures in Brazil and in Chile, while being still in the process of  
assessing an Argentinian request related to the foot -and-mouth disease (FMD) free area of 
Patagonia. The panel report in US-Animals  largely supports the EU 's discrimination claims in the 
present case. In US-Animals  the panel first found that several aspec ts of the sanitary measures in 
place in Patagonia (Argentina) and in Santa Catarina (Brazil) are comparable in terms of efficacy 
and that the relevant conditions in Patagonia, Santa Catarina and Chile do have "a resemblance or 
likeness" and are "of the sam e nature or kind", being therefore similar within the meaning of 
Article 2.3 of the SPS Agreement.  
98. First, the EU has explained how the measures at issue discriminate between the products at 
issue from the EU and similar products presenting a rather hig her (or at least equivalent) level of 
risk originating in Russia. The relevant conditions prevailing both in the affected EU Member States 
and in Russia are the existence of ASF on both the Russian and the EU territories, because that 
was the relevant feat ure that triggered the import prohibitions imposed by Russia.  
99. Second, with respect to Ukraine, relevant to the present case are two instances of 
discrimination, both occurring before the date of the establishment of the panel. The first instance 
occurr ed in 2012, when Russia did not apply any ban to Ukrainian products following an ASF case 
in the Zaporozhye region. The second instance of discrimination occurred at the beginning of 2014 
with respect to the Lugansk region. Strangely enough, in its First W ritten Submission Russia 
presents a letter sent to the Ukrainian authorities on 30 January 2014, requesting inter alia  
information on measures and proposals for regionalisation after the decision on regionalisation was 
already taken!  
100. Third, with regar d to Belarus, while for the purposes of Article 2.3 first sentence the 
discrimination should occur between WTO Members, the EU shares the US assessment according 
to which the concept of disguised restriction on international trade in the second sentence of  
Article 2.3 does not have such a limitation. In practice, it means that similar factors should be 
taken into account by the Panel in its analysis of the Russian treatment of Belarus products and 
the conditions of discrimination between WTO Members. In the  context of the similarly worded 
chapeau  of Article XX of the GATT 1994 the Appellate Body took into account its analysis regarding 
"arbitrary and unjustifiable discrimination " in reaching its conclusions on "disguised restriction on 
international trade ". 
101. Accordingly, Russia breaches the provisions of Article 2.3 of the SPS Agreement.  
2.  Article 5.5 of the SPS Agreement  
102. The EU notes that Russia 's explanations with regard to the "infected objects " not notified to 
the OIE seem to be contradictory. While Russia quotes its legislation defining "infected objects " as, 
inter alia , factories, means of transport, refrigerators, it alleges that it notified to the OIE all the 
outbreaks and cases, including these infected objects. But outbreaks and cases refe r to animals 
infected by a pathogenic agent, while factories, means of transports and refrigerators are not 
animals.  
103. A recent declaration by a Russian industry representative confirms that ASF spread from 
some municipal districts of the Voronezh regio n to other districts in spite of the fact that the 
competent Russian authorities took measures with regard to those ASF outbreaks and in spite of 
the fact that the cited holding was considered of the safest degree as per the Russian biosecurity 
standards.  WT/DS475/R/Add.1  
 
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  104. The situation in Russia is more worrying as the main factor of ASF spread are not the wild 
boars but rather domestic pigs, which can be associated with more human mistakes and loose 
enforcement measures. Russia is also lacking an ASF contingency plan.  
105. All the above information has to be seen and assessed in the context of the very important - 
and relatively quick - geographical spread, thousands of kilometres from the initial ASF outbreaks.  
106. Russia's ALOP cannot be derived from the measures at issue, as these measures do not 
contain non -protectionist elements. The Panel may establish Russia 's ALOP on the basis of the 
level of protection reflected in the domestic SPS measures  actually applied . In light of the above, 
the lack of proper application  and enforcement of the Russian ASF legislation clearly leads to the 
conclusion that Russia 's ALOP actually applied  is rather low.  
107. In any event, even if the Panel finds a rather high ALOP reflected in the EU -wide ban and in 
the four individual bans, Russia is in breach of Article 5.5 of the SPS Agreement, as it makes 
arbitrary or unjustifiable distinctions in the levels it considers to be appropriate in different 
situations, because such distinctions result in discrimination or a disguised restriction  on 
international trade. The ALOP is a function of what Russia seeks to protect on Russian territory. It 
is not or should not be a function of different trade partners.  
108. Finally, the EU recalls that, unlike Article 2.3, Article 5.5 of the SPS Agreement  does not 
contain a reference to "Members ". For the purposes of the EU's Article 5.5 claims the 
discrimination with regard to Belarus is also relevant.  
F.  Claims related to control, inspection and approval procedures  
1.  Recognition of regionalisation fal ls within the scope of Article 8 and Annex C of the 
SPS Agreement  
109. Russia wrongfully considers that the EU 's claims under Annex C and Article 8 of the SPS 
Agreement fall outside the scope of the mentioned provisions. This assertion is also supported by  
the US in its Third Party Submission. However, the panel in US-Animals  clearly states that 
recognition of regionalisation falls within the scope of Article 8 and Annex C of the SPS Agreement.  
110. The EU explained why Russia 's assertions are wrong for a n umber of reasons. First, the 
language used in Article 6.3 of the SPS Agreement, referring to "inspection and…other relevant 
procedures " is very similar to the language used in Annex C and Article 8, which also refer to 
"inspection, control and approval pro cedures ". The EU does not see any reason why there should 
be a different meaning attached to the type of procedures envisaged by Article 8 so as to exclude 
the type of inspections and other relevant procedures mentioned in Article 6.3. The Article 6 
Guidel ines and Footnote 7 to the SPS are supportive of this interpretation.  
111. Second, unlike Russia the EU does not view the acceptance of the regionalisation measures 
as a "negotiation " between two different Members. This is rather an objective exchange of 
information and the decision of the importing Member is to be taken with consideration of the 
objective and rational factors of the kind non -exhaustively enunciated in Article 6.2 second 
sentence of the SPS Agreement. Article 6.3 makes it clear that the ne cessary information shall be 
provided in order to objectively demonstrate  to the importing Member that the disease -free areas 
are disease -free and are likely to remain disease -free areas. This understanding is confirmed in 
Article 5.3.7 of the OIE Terrestr ial Code, which describes the sequence of steps to be taken in 
establishing a zone and having it recognised for international trade purposes. Similarly, Article 4.1 
of the SPS also makes reference to the exporting Member objectively demonstrating  to the 
importing Member that its measures are suitable.  
112. It follows from the above that the EU claims pursuant to Annex C and Article 8 fall within the 
type of situations contemplated by those legal provisions.  
2.  Russia requested information which is not nece ssary for the purposes of assessing the 
EU ASF regionalisation measures, resulting in undue delays  WT/DS475/R/Add.1  
 
- B-30 - 
 
  113. Russia did not manage to rebut the prima facie  case made by the EU with respect to our 
Annex C and Article 8 claims.  
114. The delays in the operation of  the control, approval and inspection procedures linked to the 
EU wide ban and the individual EU Member States bans are clearly attributable to Russia. While 
the need for additional information does not amount to undue delay, the repeated request of 
non-necessary and irrelevant information does. It equally does amount to undue delays the lack of 
responsiveness for long periods of time, without further feedback on the key issues invoked in 
order to delay the procedures.  
115. The EU explained in detail and il lustrated with clear examples the type of information which 
Russia required from the EU, allegedly for the purpose of completing its approval procedures with 
respect to the EU regionalisation measures. The EU is pleased to note that the individual experts 
appointed by the Panel substantially agree with our assessment. Also, the EU promptly notified all 
changes in the ASF situation in the recently affected EU Member States, as explained in detail in 
our Responses to the Panel questions.  
116. The EU has provi ded abundant evidence to substantiate its claims under Annex C and Article 
8 of the SPS Agreement. The EU recalls that the agreed minutes of the meeting of 7 March 2014 
mention that the EU veterinary representative "answered all the questions asked by the Russian 
party". Russia 's information requirements were not limited to what is necessary  for appropriate 
control, inspection and approval procedures as required by Annex C(1)(c) of the SPS Agreement. 
To the contrary, the EU explained in detail that Russia 's information requirements extended to 
numerous issues which were not necessary for the assessment of the EU regionalisation measures.  
117. Russia 's control, inspection and approval procedures were not undertaken and completed 
without undue delays , as requi red by Annex C(1)(a) of the SPS Agreement. The panel in US-
Animals  analysed if the US authorities ' review processes of Argentina's requests were undertaken 
and completed without undue delay. It concluded that in those particular circumstances most of 
the d elays incurred in the review of Argentina 's request for the recognition of Patagonia as FMD 
free were undue.  
118. In the present case the EU provided solid evidence, confirmed by the individual experts ' 
responses to the Panel questions, that Russia 's failu re to assess the EU 's regionalisation request 
resulted in delays which are undue, because such delays are "unwarranted, or otherwise 
excessive, disproportionate or unjustifiable".  
119. It is particularly important in that regard to note that Russia repeate dly requested 
information which is not germane to conducting a risk assessment in the present case. It came 
back with requests for non -relevant information several times, always claiming that it needs more 
information to perform its assessment, given the c hanges in the ASF situation. It is precisely this 
kind of delaying behaviour which was condemned by the panel in US-Animals.  
120. The EU agrees with the panel in US-Animals , which found that "what matters is whether 
there is a legitimate reason, or justifi cation, for a given delay, not the length of the delay as such". 
In the circumstances of the present case Russia's delays in control, inspection and approval 
procedures with respect to the EU ASF regionalisation measures are undue, whether we consider 
the date of the panel establishment or a date 20 months later.  
121. In particular, it bears significance that as early as February and March 2014 Russia required 
from the EU information which is irrelevant for conducting a risk assessment in the present case. 
With the letter of 5 February 2014 Russia requested information not only with respect to Lithuania 
(the only partially affected EU Member State at the time) but also with respect to all the other EU 
Member States about foreign hunters, who entered the coun try to hunt the wild boar during 2013 -
2014, as well as an estimation of enterprises attested to ship animal products to the territory of 
the CU, by level of zoosanitary condition. One month later, the letter of 12 March 2014 contains 
the already notorious in the present proceedings reference to "absence of any proof of non -
existence of ASF in the territory of other EU member states ". 
122. Russia cannot successfully defend itself by arguing that it has had to wait for information 
from the EU which was labell ed as an "overkill" and as an attempt to "muddy the water" by the WT/DS475/R/Add.1  
 
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  individual experts appointed by the Panel. Such a period constitutes a delay and such a delay is 
undue for the purposes of Article 8 and Annex C(1)(a) of the SPS Agreement.  
123. It is true t hat, differently from US-Animals,  in the present case there were several changes 
in the delimitation of the different areas. However, all these changes are a normal part of the EU 
system, which is designed so as to ensure that new cases and outbreaks do no t occur in the ASF 
free areas. It is significant that since August 2014 no new cases or outbreaks occurred outside the 
areas considered to be infected with ASF. In addition, all changes took place in a limited 
geographical area and were based on the same g uiding principles. Thus, in the circumstances of 
the present case, Russia was able to conduct a risk assessment and to reach a conclusion with 
regard to the EU ASF regionalisation measures.  
124. In addition, the EU recalls that Article 5.3.7. of the OIE Te rrestrial Code recognizes the 
importance of the trading history between two countries. Clearly the EU and Russia have a long 
history of trade. Russia should have taken their knowledge of the EU system in light of the long -
standing EU -Russia trading relatio nship into account while analysing the EU ASF regionalisation 
measures. In the words of Dr Alejandro Thiermann, as emphasized during the meeting with the 
individual experts, trust is an important element between trade partners with an established 
relations hip. 
125. The EU also explained that procedures with respect to the products at issue from the EU 
were conducted in a less favourable manner than for the like domestic products, contrary to Annex 
C(1)(a) of the SPS Agreement. The EU explained in detail in the section dedicated to the 
discrimination claims how Russia discriminates between the products at issue from the EU and the 
like domestic products.  
126. Finally, Russia did not publish or otherwise communicate to the EU the standard processing 
period and  did not comply with any of the other requirements in Annex C(1)(b) of the SPS 
Agreement.  
127. As Russia failed to rebut our prima facie  case, the Panel should find that Russia is in breach 
of its obligations under Annex C(1)(a), (b), (c) and Article 8 of the SPS Agreement.  
G.  Transparency claims  
128. The EU highlights that even in an emergency scenario an importing Member is not absolved 
of any obligation with regard to the transparency of its measures. Quite to the contrary, Annex 
B(6) contains a set of detailed requirements which should be followed.  
129. Russia notified the measure at issue with regard to Lithuania to the WTO Secretariat only 
more than 2 weeks after its adoption. Similarly, Russia notified the ban on the products at issue 
from Latvia onl y on 16 July 2014, more than two weeks after its imposition on 27 June 2014.  
130. Russia is equally unable to rebut EU 's arguments regarding the lack of any notification at all, 
through the WTO Secretariat, of the EU wide ban, while acknowledging its exist ence, under the 
different name of "provisional compliance with the terms of the veterinary certificates ". 
131. In light of the above,  Russia has failed to rebut the prima facie  case made by the EU with 
regard to the breach of the provisions of Annex B(1),  (2), (5) and (6) of the SPS Agreement and, 
consequently, of Article 7 of the SPS Agreement.  
IV. CONCLUSIONS AND REQUEST FOR FINDINGS  
132. Russia failed to rebut the EU 's prima facie  case on any of the claims the EU advanced. 
Furthermore, Russia significan tly changed its position during the proceedings, in light of the 
responses from the individual experts and from the OIE, as well as the latest EFSA ASF Scientific 
Opinion. Accordingly, the EU requests the Panel to find that Russia's measures, as set out ab ove, 
are inconsistent with Russia's obligations contained in Articles 2.2, 2.3, 3.1, 3.2, 3.3, 5.1, 5.2, 5.3, 
5.4, 5.5, 5.6, 5.7, 6.1, 6.2, 6.3, 7, 8, Annex B(1), (2), (5), (6) and Annex C(1)(a), (b), (c) of the 
SPS Agreement.  WT/DS475/R/Add.1  
 
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  133. The EU respectfully requ ests the Panel to recommend that the Dispute Settlement Body 
requests Russia to bring the contested measures into conformity with its obligations under the SPS 
Agreement.  
 
 
 WT/DS475/R/Add.1  
 
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  ANNEX B -3 
FIRST PART OF THE I NTEGRATED EXECUTIVE SUMMARY OF THE ARGUM ENTS OF THE RUSSIAN  FEDERATION   
I. FACTUAL BACKGROUND  
1. ASF is a highly contagious viral disease, which is difficult to control and spreads mainly in 
areas that have high concentrations of wild boar and backyard farms with low levels of biosecurity. 
This lethal combinat ion is present in many Eastern European countries. Certain geographical 
features, including forest migration corridors, suggest that ASF may easily spread within regions of 
the European Union. While ASF is extremely lethal (with mortality rates close to 10 0%), recent 
scientific studies suggest that the mortality rate may not be 100%. Recovered animals may 
therefore remain infected, thus increasing the risk of further ASF spread.  
2. Recognizing the severity of ASF, the Russian Federation has implemented rigoro us and 
comprehensive ASF -control and eradication measures mainly through the ASF Instructions1, which 
set out strict containment zones and standstill requirements for ASF outbreaks in the Russian 
Federation.2 Through Customs Union Decision No. 317 , the Rus sian Federation  likewise extends 
ASF control measures to imported products, allowing for imports from ASF -infected countries 
provided that the exporting country or region has been ASF -free for 36 months – in accordance 
with the OIE Terrestrial Code princip les of regionalization.3 
3. In response to ASF outbreaks in EU Member States, the Russian Federation imposed  
temporary import restrictions on ASF -infected EU Member States as neither the European Union 
nor the infected EU Member States have been unable to de monstrate that its proposed zones were 
adequate to control ASF and consistent with the OIE Terrestrial Code. As a consequence of the ASF 
outbreaks, EU veterinary officials were no longer able to certify that the territory of the European 
Union (excluding S ardinia) was ASF -free over the prior three years, a condition of export for live 
pigs and certain pork products as stipulated in the veterinary certificates4 and agreed upon by the 
European Union and the Russian Federation through the 2004 Memorandum.5  The consequence 
was the inability of the European Union to export live pigs and pork products to the Russian 
Federation.  
4. The Russian Federation has similarly imposed import restrictions with respect to Belarus 
and Ukraine, which experienced ASF outbreaks in 2013 and 2014.  
II. LEGAL ARGUMENTS  
A. Arguments regarding import restrictions on the four ASF -infected EU Member 
States:  Lithuania, Poland, Latvia and Estonia  
1. The Russian Federation's import restrictions with respect to the  
infected EU Member States c onform to the relevant international 
standard and are consistent with Article 3.2 of the SPS Agreement  
5. Article 3.2 of the SPS Agreement provides that SPS measures that conform to the relevant 
international standard shall be deemed necessary and are presume d consistent with the relevant 
provisions of the SPS Agreement.6 The relevant international standard for animal diseases is the 
OIE Terrestrial Code.  
6.  The most pertinent provisions for ASF are set out in OIE Terrestrial Code Chapters 4.3, 
4.4, 5.3, and 15.  As set out in the chart below, the relationship between these different articles is 
not linear but rather sequential.  
 
                                               
1 Exhibit EU -18. 
2 Ibid. 
3 Exhibit RUS -25. 
4 Exhibits EU -52 to EU -54 
5 Exhibit EU -60 
6 Appellate Body Report, EC – Hormon es, para. 163.  WT/DS475/R/Add.1  
 
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i. Non-heat-treated products  
7. As can be derived from this chart, the provisions regarding non -heat-treated products set 
out in Chapte r 15.1 of the OIE Terrestrial Code are triggered only when the exporting country has 
determined to establish OIE -consistent zones and has objectively demonstrated this to the 
importing country. An exporting country's failure to establish OIE -consistent zon es and/or 
compartments  allows the importing country to legitimately and appropriately apply country -wide 
import restrictions on non -heat-treated products.7  
8. For an exporting country to effectively establish a zone under the OIE Terrestrial Code, it 
must d emonstrate to the importing country that it has implemented the recommendations in 
Article 4.3.3 of the OIE Terrestrial Code, which sets forth "Principles for defining and establishing a 
zone or compartment, including protection and containment zones".8 Irrespective of whether or 
not a country labels its zones containment zones and/or protection zones, or claims to adhere to 
"straightforward regionalization", the principles set out in Article 4.3.3 of the OIE Terrestrial Code 
cannot be ignored by countries claiming to have established OIE -consistent zones. Indeed, nothing 
in OIE Terrestrial Code suggests that there exist separate principles for "straightforward" zones 
that differ from the principles set out for containment and/or protection zones.  
9. The OIE Te rrestrial Code's zoning principles set out in Article 4.3.3 include: (i) intensified 
movement control; (ii) identification of the source of ASF outbreak; (iii) stamping -out policy; (iv) 
absence of new cases of the disease within the containment zone for tw o incubation periods (i.e. 
                                               
7 Panel Report, India – Agricultural Products , para. 7.261.  
8 Exhibit EU -4, Article 4.3.2.  WT/DS475/R/Add.1  
 
- B-35 - 
 
  30 days for ASF); and (v) increased passive and targeted surveillance. Importantly, zones must 
take into account the epidemiology of the disease, in particular the presence and role of 
susceptible wildlife species.9  
10. In addition,  an ASF -infected country wishing to continue to export should, pursuant to OIE 
Terrestrial Code Article 5.3.7, provide the importing country with an explanation of why the area 
can be treated as an epidemiologically separate zone for international trade pu rposes. This 
principle is also reflected and reinforced in Article 6.3 of the SPS Agreement and the 2006 
Memorandum.10 
ii. Heat-treated products  
11. The relevant OIE Terrestrial Code provisions regarding heat -treated products are set out in 
Articles 15.1.14, 1 5.1.15,15.1.16 and 15.1.17.  These provisions permit the trading of pork 
products that "have been processed in an establishment approved by the Veterinary Authority for 
export purposes so as to ensure the destruction of the ASF , and that the necessary prec autions 
were taken after processing to avoid contact of the product with any source of ASF."11  The 
exporting country carries the burden of demonstrating that "the necessary precautions were taken 
after processing to avoid contact of the product with any so urce of ASF."  
 
b. The Russian Federation conforms to the OIE Terrestrial Code  
12. The Russian Federation is willing and able to accept products from ASF -infected countries 
that meet OIE -consistent regionalization, compartmentalization and/or heat -treated sta ndards. CU 
Decision 317 establishes that the Russian Federation is able and willing to accept imported 
products from ASF -infected countries that have established OIE -consistent regions. In addition, 
the record reflects that that the Russian Federation is a ble and willing to accept imports from ASF -
infected countries/regions that have established OIE -consistent compartments. Furthermore, the 
Russian Federation allows for the import of products that have been adequately heat -treated.   
i. The Russian Federati on's decision not to accept the EU's 
series of growing zones for non -heat treated products was 
objectively justified and conforms to the OIE Terrestrial Code  
13. In evaluating whether the Russian Federation's decision not to accept the EU's zones was 
reasonabl e in accordance with the OIE Terrestrial Code, the Panel must decide, based on the 
totality of the evidence, in its temporal, epidemiological and geographic context, whether the 
Russian Federation's decision was "objectively justifiable." The Panel may not  engage in a de novo 
evaluation of the evidence and must refrain from attributing its own weight or drawing inferences 
from particular facts and evidence. The appropriate short -hand description of this standard of 
review for the Panel to apply is whether t he Russian Federation's decisions on the EU's various 
zones were "objectively justifiable." Based on this standard of review, the Russian Federation's 
decision not to accept the EU's zones is objectively justified.  
14. Effectiveness is a central principle of the OIE Terrestrial Code's zoning provisions.12  Yet 
undisputed evidence demonstrates that the European Union's zones of containment and ASF 
control measures have not been effective in containing the further considerable spread of ASF.  
15. First, the European U nion's zones of containment have proven to be inadequate. This may 
well be because of the combination in the four ASF -infected EU Member States of high wild boar 
density  and the high percentage of small backyard low -biosecurity pig operations where domesti c 
and wild boars can intermingle.13 The OIE Terrestrial Code reflects the need to adapt the zones to 
the epidemiology of the disease, taking into account especially the role of wildlife species and the 
application of biosecurity measures.14 Therefore, any ef fectively established zone of containment 
should take into account not only the role played by wild boar in transmitting ASF and the large 
distances over which wild boar can spread ASF,15 but also the fact that ASF is more contagious 
                                               
9 Exhibit EU -4, Article 4.3.2.  
10 Exhibit EU -61. 
11 OIE Terrestrial Code Articles 15.1.14, 15.1.15, 15.1.16, 15.1.17. (Emphasis added). (Exhibit EU -3) 
12 Exhibit EU -4, Article 4.3.1.  
13 Exhibit RUS -3, Figure 8; and Figure 3 of the Russian Federation's Opening Statement. See also 
Exhibit RUS -150; and Figure 4 of the Russian Federation's Opening Statement.  
14 Exhibit EU -4, Article 4.3.2.  
15 Exhibits RUS -8;and R US-149, p. 8.  WT/DS475/R/Add.1  
 
- B-36 - 
 
  than previously thought . 16  In light of this, any zone of containment in the four ASF -infected EU 
Member States must be generously sized, and ASF control measures must be strongly enforced. 
However, throughout 2014 and 2015, the European Union kept expanding its zones of 
contain ment in these four ASF -infected EU Member States, which suggests that the original zones 
established by the European Union were not effective in preventing further outbreaks.17 
16. Second, the continual changes to these zones of containment – caused by high lev els of 
continuing ASF outbreaks – indicate that the European Union's containment zones have not been 
effective in controlling the spread of ASF. Specifically, the OIE Terrestrial Code provides that a 
zone cannot be effectively established if there are more  than "limited" outbreaks.18 Whether or not 
an outbreak is limited depends on the number of outbreaks, speed and spread of disease, and the 
geographic area it has infected. The hundreds of outbreaks and cases the European Union has 
experienced over the cour se of a year, covering vast territory in four EU Member States, certainly 
cannot be considered "limited".19  
17. Third, the ineffectiveness of the European Union's control measures is demonstrated by its 
failure to meet the so -called "30 -day" rule set out in th e OIE Terrestrial Code.20 According to this 
rule, the effectiveness of a containment zone is reflected in the fact that there have been no new 
cases in the containment zone within a minimum of two incubation periods from the last detected 
case (i.e. 30 days ).21 The European Union has not been able to demonstrate this. Thus, the entire 
territory of those four infected EU Member States may be considered ASF -infected.  
18. Fourth, the European Union failed to adopt adequate movement restrictions to prevent the 
sprea d of ASF from the zones of containment  to the rest of the country pursuant to relevant 
provisions in the OIE Terrestrial Code.22 Indeed, EU legislation allows for the movement of certain 
non-heat-treated ASF -susceptible products from ASF infected zones wit hout first establishing an 
ASF-free compartment as recommended by OIE Terrestrial Code Chapter 15.1.  
19. Fifth, the European Union failed to provide the Russian Federation with transparent, timely 
and complete information justifying its ever -expanding  contai nment zones. Of particular 
significance is the European Union's continuing failure to provide the Russian Federation with 
information the European Union itself deems essential when evaluating ASF outbreaks.  Pursuant 
to the EU's overarching ASF legislation  in the context of the "90 -day" plans, each time infection 
zones are redefined, Member States are under the obligation to ensure that "the Commission and 
the other Member States are informed of these amendments without delay."23 However, the 
European Union waited many months before it finally provided copies of the 90 -day plans for 
Poland and Lithuania in March 2015. The Russian Federation received copies of Latvia and 
Estonia's eradication plans as late as May 2015.   
20. Other factors the Russian Federation to ok into account were: the European Union's failure 
to adequately increase passive and targeted surveillance, incidents of pork smuggling and related 
evidence creating doubts about the capacity of the veterinary service in the ASF -infected Member 
States; an d the Russian Federation's own experience in controlling ASF on its territory over the 
past seven years.  
21. Based on these factors, the Russian Federation's decision not to accept imports of live pigs 
and pork products from the infected EU Member States was objectively justifiable.  
22. The reasonableness of the Russian Federation's decision to reject the EU's zones was 
supported by the decisions of many other WTO Members (e.g. Japan, Singapore, South Korea, 
Taiwan) that similarly had in place country -wide import restrictions by the end of 2014.  
c. The Russian Federation's decision not to accept the EU's non -
identified compartments conforms to the OIE Terrestrial Code  
23. The European Union neither identified compartments nor requested the Russian Federation 
to recogn ize compartments with a high level of biosecurity. Thus, the Russian Federation was 
under no obligation under the OIE Terrestrial Code to allow for imports from compartments.  
                                               
16 Exhibit EU -26, p. 18.  
17 Figures 5 -8 of the Russian Federation's Opening Statement.  
18 Exhibit EU -4, Article 4.3.3.3.  
19 Exhibit RUS -152. 
20 Exhibit EU -4, Article 4.3.3.3.e.   
21 Exhibit EU -3, Chapter 15.1.  
22 Exhibit EU -4, Article 4.3.3.3.c.  
23 Article 16.1 of the Directive 2002/60. (Exhibit EU -31). WT/DS475/R/Add.1  
 
- B-37 - 
 
  d. The Russian Federation's decision not to accept the EU's heat -
treated product s also conforms to the OIE Terrestrial Code  
24. The European Union has not met its burden of demonstrating that "the necessary 
precautions were taken after processing to avoid contact of the product with any source of ASF."  
EFSA scientist acknowledged that wh ether or not a product is properly heat -treated is crucial in 
determining risk of ASF spread since considerable risk of infection remains if heat -treatment is not 
conducted properly .24 
25. During the period from January 2014 through the present, the European Un ion has never 
provided information or otherwise demonstrated to the Russian Federation that its heat -treated 
pork products have been processed in a manner which avoided contact of the product with any 
source of ASF.  Indeed, the European Union made no such  demonstration even after the Russian 
Federation imposed import restrictions on heat -treated products from Poland and Lithuania on 7 
April 2014, and later after the Russian Federation imposed import restrictions on most heat -
treated products from Latvia an d Estonia.  
26. Thus, the Russian Federation's import restrictions on heat -treated products from ASF 
infected EU Member States are also consistent with the relevant provisions of the international 
standard.  
2. The Russian Federation's measures are presumed con sistent with 
all Relevant SPS Provisions Under Article 3.2 of the SPS 
Agreement  
27. The Russian Federation's import restrictions with respect to the four infected EU Member 
States conform to the OIE Terrestrial Code. Thus, the Russian Federation benefits from a 
presumption of consistency of its measures with the relevant provisions of the SPS Agreement 
pursuant to Article 3.2 of the SPS Agreement.25 The relevant provisions in this case are: Articles 
2.2, 5.1, 5.2, 5.3, 5.4, 5.6, 6.1, 6.2, and 6.3 of the SPS Agre ement. The European Union has not 
put forward any evidence to rebut this presumption of consistency.  
3. The Russian Federation's import restrictions are consistent with 
Articles 6.1, 6.2, and 6.3 of the SPS Agreement  
a. The Russian Federation recognizes the concept of regionalization 
consistent with SPS Article 6.2  
28. Article 6.2 requires the recognition by a WTO Member of the concepts of pest - or disease -
free areas and areas of low disease prevalence.26 The Russian Federation not only recognizes the 
concept  of disease -free areas in the abstract;27 its legislation Customs Union Decision 317 
explicitly recognizes regionalization in the context of ASF, and the 2006 Memorandum refers to it 
as applied to contagious diseases and to products from the European Union.28 In determining 
recognition of such ASF -free areas, the Russian Federation considers factors such as geography, 
epizootic factors and SPS control measures.  
29. The European Union has acknowledged that the Russian Federation recognizes the concept 
of regionali zation, stating that it "understand[s] that the Russian Federation is applying the 
principles of regionalization for African and Classical Swine fever in other affected countries."29  
b.  The Russian Federation has adapted its import restrictions to 
regiona l conditions consistent with Article 6.1 of the SPS 
Agreement  
30. The Russian Federation not only recognizes the concept of regionalization, it also has 
adapted import restrictions to the regional conditions in these countries by taking into 
                                               
24 EFSA, Scientific Opinion on African Swine Fever", EFSA Journal  (2010), 8(3):1556, pp. 11 -12.  
(Exhibit EU -24); Evira Research Report, "Possible routes of entry into the country for African swine feve r – Risk 
profile" (May 2011),  p. 15.  (Exhibit RUS -140).  
25 Appellate Body Report, EC – Hormones , paras. 170 -172. 
26 Panel Report, India—Agricultural Products , para. 7.695.  
27 Exhibit EU -61. 
28 Exhibit RUS -25, Chapters 7, 8 and 9.  
29 Exhibit EU -62. WT/DS475/R/Add.1  
 
- B-38 - 
 
  consideration the factors listed in Article 6.1 of the SPS Agreement to objectively and reasonably 
refuse the EU's zones. A key factor that the Russian Federation took into account were the zoning 
provisions of the OIE Terrestrial Code, in particular Article 4.3.3, and the European Union's failure 
to act consistently with these provisions. In addition, the procedure the Russian Federation used in 
evaluating the EU's zones closely follows the Guidelines to Article 6 of the SPS Agreement, which 
were established by "taking into  account the work of the OIE and the IPPC in developing 
international standards, guidelines and recommendations to further the practical implementation 
of Article 6."30 
c. The European Union has failed to act in accordance with the 
steps prescribed in Artic le 6.3 of the SPS Agreement  
31. The European Union has failed to objectively demonstrate that the alleged ASF -free areas 
in the four infected EU Member States "are, and are likely to remain, pest - or disease -free areas" 
pursuant to Article 6.3 of the SPS Agre ement. The ASF -free areas in the European Union's infected 
Member States is shrinking rapidly, creating uncertainty as to whether the currently alleged ASF -
free areas will indeed, "remain" ASF -free.  
32. In addition, the European Union has provided insufficien t evidence for the Russian 
Federation to conclude that its ASF -free areas are and will remain disease -free. Information 
provided was mainly limited to information about legislation and did not include, for example, 
timely information about the implementati on of OIE -recommended ASF eradication measures with 
respect to new and expanded zones, and any information regarding the situation "on the ground" 
as to how the measures have been implemented, enforced, adjusted to local conditions, and have 
been successfu l and not successful, among other relevant factors.  
4. The Russian Federation's import restrictions are consistent 
with Article 5.5 of the SPS Agreement  
a. The European Union has failed to prove that the Russian 
Federation has adopted different ALOPs  
33. The European Union claims that the Russian Federation discriminates because it recognizes 
ASF-free regions within Russia and allows for intra -Russian trade from regions suffering from ASF 
infections while imposing country -wide import restrictions on products from the four EU infected 
Member States. This raises the question whether importing countries experiencing disease 
infections must ban all trade within their own territory to legitimately impose country -wide 
restrictions with respect to that same disease w ithin the territory of other WTO Members under 
SPS Articles 2.3 and 5.5. The answer to this question is no.   
34. An importing Member may maintain and implement the same ALOP through somewhat 
different measures which may have a somewhat different impact on tra de. Indeed, the OIE 
Terrestrial Code does not envisage a total domestic standstill as a precondition to impose import -
restrictions on affected products. The 2013 OIE Users Guide provided that "[t]he recommendations 
in the Terrestrial Code make reference on ly to the animal health situation in the exporting country, 
and assume that either the disease is not present in the importing country or is the subject of a 
control or eradication programme." In other words, under the OIE Terrestrial Code, an infected 
importing country may legitimately impose country -wide import restrictions as long as it has in 
place a reasonable domestic control mechanism.   
35. The Russian Federation has in place a rigorous and comprehensive ASF -control programme 
domestically that reflects a high ALOP. Russia's overarching ASF control legislation, the ASF 
Instructions, sets out strict movement prohibitions on meat trade within and outside the 
containment zones as well as a prohibition on the transportation of animals.31  In addition, the 
Russian Federation has adopted measures to reduce the spread of ASF in wild boar32, and 
backyard farms, and nation -wide programs to reduce the number of free ranging domestic pigs33 
                                               
30 Exhibit E U-51. 
31 Instructions on Measures for the Prevention and Eradication of African Swine Fever, approved by the 
Chief Directorate of Veterinary Medicine at the USSR Ministry of Agriculture on 21 November 1980.  (Exhibit 
EU-18). 
32 Exhibit RUS -20, Articles 1.1, 1.2, 1.3, 1.4, 1.6, and  2.1.  
33 Exhibit RUS -40. WT/DS475/R/Add.1  
 
- B-39 - 
 
  and increase biosecurity measures in large pig farms.34 Importantly, the Russian Federation, the 
Russian Veterinary Service and the Russian pork industry have taken rigorous actions to 
implement these mandates, as illustrated by the examples of regional plans and actions in 
Belgorod, Voronezh, and Krasnodar and through testimony from M r. Maslov, Founder and 
Chairman of the AGREOECO Group which runs five pig -breeding complexes in Voronezh.  
36. The Russian Federation applies equivalent flexibility to imported products from trading 
partners. Custom Union Decision 317  accepts imports of live p igs from importing countries that 
have experienced ASF during the last 36 months but which have then effectively established OIE 
consistent zones.   
37. The Russian Federation's temporary import restrictions, based on the ineffectiveness of the 
EU's measures, are akin to the Russian Federation's domestic ASF -infected zones involving strict 
standstill of live pigs and pork products. Therefore, regardless of any differences in the structure or 
application of the restrictions, the restrictions applied still reflec t the same high ALOP.   
38. Assuming arguendo that the Russian Federation has applied different ALOPs between the 
four ASF -infected EU Member States and the Russian Federation, these distinctions would be 
justified, in part, by the arguably higher level of ris k of the transmission of ASF from imports of 
products from the alleged ASF -free regions in the four infected EU Member States caused by the 
European Union's lenient legislation on free movement in relevant products within the European 
Union.35   
b. Any alle ged distinctions in ALOP do not result in 
discrimination or a disguised restriction on trade  
39. There is not a single test uniformly applicable in all cases to determine the existence of a 
disguised restriction on international trade.36 Rather, three warning s ignals, taken together with 
other factors, can be relevant:37 (i) the arbitrary and unjustifiable character of the differences in 
levels of protection; (ii) the difference in levels of protection applied; and (iii) the inconsistency of 
the measure at issue with Articles 5.1 and 2.2 of the SPS Agreement.38 None of these, or other, 
warning signs are present in this case.  
40. Regarding (i) and (ii), the Russian Federation applies the same ALOP to imported relevant 
products from ASF -infected EU Member States as to re levant products within the Russian 
Federation's ASF -infected zones. Any difference in the measures applied reflects the unwillingness 
of the European Union to establish reasonably sized ASF -free regions where ASF would not likely 
spread.39 Additionally, as the Russian Federation's measures with respect to the four ASF -infected 
EU Member States conform to and/or are based on the OIE standards, they cannot simultaneously 
constitute a disguised restriction on trade.  
41. Regarding (iii), the Russian Federation's im port restrictions are presumed to be consistent 
with the relevant provisions of the SPS Agreement pursuant to Article 3.2, which include Articles 
5.1 and 2.2 of the SPS and thus obviates the need for a full blown risk assessment.  
5. The Russian Federation 's import restrictions are not 
inconsistent with article 2.3 of the SPS Agreement  
a. Discrimination claim 1 : import restrictions on products 
from the ASF -infected EU Member States compared to 
the Russian Federation's internal movement 
restrictions  
42. The Rus sian Federation's measures comply with Article 2.3 of the SPS Agreement, first 
sentence, because (i) the Russian Federation's measures for domestic and imported products are 
based on the same ALOP; (ii) any difference in treatment is not arbitrary because the European 
Union failed to objectively establish ASF -free regions in contrast to the Russian Federation; and 
(iii) the conditions in the four ASF -infected EU Member States and the Russian Federation are 
dissimilar since they represent different risks of ASF spread. Finally, the Russian Federation's 
                                               
34 Exhibit RUS -22. 
35 Exhibit EU -44, Articles 5, 8 -12. 
36 Panel Report,  Brazil – Tyres , para. 7.320.  
37 Appellate Body , Australia —Salmon , para. 166.  
38 Ibid. 
39 See paras. 15 -19 above.  WT/DS475/R/Add.1  
 
- B-40 - 
 
  import restrictions do not violate Article 2.3 of the SPS Agreement, second sentence, as they do 
not constitute a disguised restriction on trade.  
b. Discrimination claim 2 : import restrictions on products 
from the ASF -infected EU Member States compared to 
the Russian Federation's treatment of products from 
Belarus and Ukraine  
43. Article 2.3 of the SPS Agreement refers exclusively to WTO Members. Since Belarus is a 
non-WTO Member, provisions of the Article 2.3. of the SPS Agreement are not applicable to the 
EU's discrimination claim regarding Belarus and the European Union's claim must fail.  
44.  Alternatively, any difference in treatment between Belarus and the European Union is 
justified and not arbitrary, since it r eflects the fact that Belarus recognized and established 
compartments with high levels of biosecurity in accordance with the OIE, whereas the European 
Union never proposed such compartments.40 
45.  The Russian Federation also does not discriminate with respect to Ukraine. Any imports 
allowed are the result of compartmentalization that Ukraine has established, in contrast to the 
European Union.  
6. The European Union has failed to demonstrate that the 
Russian Federation's import restrictions are 
inconsistent with  Article 5.6 of the SPS Agreement  
46. The European Union has not demonstrated that the Russian Federation violates Article 
5.6. of the SPS Agreement, as there are no less -restrictive alternative measures available to 
achieve the Russian Federation's ALOP, whic h is based on the relevant standard. The European 
Union proposes as a less trade restrictive measure the application of OIE standards, which 
recommend regionalization and trade from ASF -free countries/zones. However, the Russian 
Federation's import restric tions already conform to and/or are based on the OIE Terrestrial Code.41  
B. Arguments related to the Russian Federation's provisional compliance with 
the veterinary certificates  
1. The Russian Federation's provisional compliance with the veterinary 
certifi cates does not constitute a measures under the SPS Agreement  
47. First, the European Union has failed to establish that a de facto  consequence —the loss of 
market access for EU live pigs and pork products that do not meet the veterinary certificates' 
requiremen ts—constitutes a measure covered by the SPS Agreement and is attributable to the 
Russian Federation.  
48.  The current inability of the European Union to export live pigs and pork products to the 
Russian Federation does not result from a measure adopted by the  Russian Federation.  Rather, it 
is the consequence of the language contained in the veterinary certificates for trade between the 
European Union and the Russian Federation.  These certificates were negotiated by the Parties and 
mutually agreed upon pursua nt to the  2004 Memorandum.  Specifically, the Russian Federation 
and the European Union agreed that imports of pigs and certain pork products are allowed only if 
the entire European Union excluding Sardinia has been ASF -free for 36 months.  Thus, when the 
European Union experienced its first ASF outbreaks in Lithuania in 2014, it could no longer certify 
imports of the relevant live pigs, pig and pork products to the Russian Federation. This was due to 
the European Union's veterinary officials refusal to sig n the veterinary certificates after ASF 
outbreaks.  
49. Thus, the Russian Federation's provisional compliance with the terms of the certificates 
does not constitute a "measure" but rather reflects the consequences of following the conditions 
set out in the vet erinary certificates signed and mutually agreed to by the Parties. This conclusion 
is supported by the panel in EC – Approval and Marketing of Biotech Products, finding that the 
reference to "requirements and procedures" in the definition of an SPS measure  in Annex A(1) 
                                               
40 Exhibit RUS -42. 
41 See paras . 12-22 above.  WT/DS475/R/Add.1  
 
- B-41 - 
 
  does not include the "application " of such  "requirements and procedures".42  Similar to the 
situation in  EC – Approval and Marketing of Biotech Products , we are not dealing with a 
requirement or procedure itself, i.e. the veterinary certific ate, but rather with the application  of 
requirements or procedures which are set out in the veterinary requirement. Thus, the Russian 
Federation's provisional compliance with the veterinary certificates does not constitute an SPS 
measure.    
a. The underly ing EU -Russia veterinary certificate is and continues to be 
valid 
50. If the Panel were to consider the 2004 veterinary certificates agreed to by the Russian 
Federation and the European Union to be SPS measures, then the Panel should also take note that 
the va lidity of these veterinary certificates constitutes a term of the Russian Federation's WTO 
membership, pursuant to paragraph 893 of the Working Party Report on the Accession of the 
Russian Federation, providing that "[b]ilateral veterinary export certifica tes initialed by one of the 
CU Parties before 1 July 2010, as well as any subsequent amendments to such certificates agreed 
with the authorized body of such CU Party, would remain valid for exports from the relevant 
country into the customs territory of th e CU until an export certificate was agreed with a CU Party 
based on the agreed positions of the other CU Parties."43  
51. The European Union  not only confirmed the certificate's validity in the Working Party 
Report of the Russian Federation, but also specifica lly requested to extend its term of validity in 
2012.102  
b. In the alternative, the Russian Federation's provisional compliance 
with the terms of the veterinary certificates is justified under Article 
5.7 of the SPS Agreement  
52. According to the jurisprudenc e, relevant scientific evidence is "sufficient" if it is adequate 
to allow the performance of the risk assessment required by Article 5.1 and as defined in Annex A 
to the SPS Agreement.44  
53. Without detailed information concerning the ASF situation, including  eradication efforts 
where ASF has occurred, the epidemiology of ASF, and the geographic and other relevant 
characteristics of the EU Member States that can be used to predict whether the Member State will 
likely become infected with ASF, the Russian Feder ation is not able to accurately assess the 
probability of entry of ASF. Much of this information was, and is still, not available to the Russian 
Federation,45 despite numerous requests addressed to the European Union throughout 2014.46 
When the European Unio n did provide information in response to the Russian Federation's 
requests, it was either outdated or focused almost entirely on the ASF -infected Member States; 
not on the other EU Members that are part of the European Union.47 
54. The available pertinent infor mation indicates the existence of risk. This information 
includes evidence of rapid spread of ASF in the four ASF -infected EU Member States; scientific 
studies on wild boar and the long distances they can travel, in addition to ASF spread through wild 
boar. All these factors, coupled with the Russian Federation's own experience, suggest that ASF 
may easily spread within regions of the European Union, indicating that complying with the terms 
of the veterinary certificate constitutes a logical precautionary c oncern.48  
55. The Russian Federation has and continues to request from the European Union information 
germane to conducting a risk assessment, including information about the control regime in 
exporting EU Member States; the volume of pig and pork products imp orts from these countries; 
the movement of wild boar and density of the pig population etc.   
                                               
42 Panel Report, EC – Approval and Marketing of Biotech Products , paras. 7.1395, 7.1407, 7.1421, 
7.1441, 7.1448 and 7.1465. (Emphasis added).  
43 Report of the Working Party on the Accession of the Russian Federation, WT/ACC/RUS/70 & 
WT/MIN(11) /2, circulated 17 November 2011 , para. 893 (emphasis added) (Exhibit RUS -159).  
44 Appellate Body Report, Australia – Apples , para. 238 (observing that "if a Member chooses to base 
SPS measures on a risk assessment, it must have made the preliminary determi nation that the relevant 
scientific evidence is sufficient to perform a risk assessment"). See also Appellate Body Reports, Japan – 
Apples , para. 179; Canada – Continued Suspension , para. 674; and Australia – Apples , para. 239.  
45 Exhibits EU -84; RUS -130; a nd  RUS -54. 
46 Exhibits EU -93; and RUS -131. 
47 Exhibit RUS -41, paras. 37 -43. 
48 Exhibits EU -26, p. 18; and EU -25, p. 6.  WT/DS475/R/Add.1  
 
- B-42 - 
 
  56. The Russian Federation will continue, in conjunction with the European Union authorities, 
to discuss the mutually acceptable terms of the veterinary certificates.  The reasonable period of 
time depends on the specific circumstances of the case, which in this case includes taking into 
account the difficulty of obtaining the additional information necessary for the review, and the 
aggravating ASF situation in the Euro pean Union.  
57. Because the Russian Federation's provisional compliance with the terms of the veterinary 
certificates is justified under Article 5.7 of the SPS Agreement, the European Union cannot prevail 
under its SPS Article 5 claims. 49 
c. The Russian Feder ation's provisional compliance with the terms of 
the veterinary certificates is justified under Article 2 of the SPS 
Agreement  
i.  Discrimination Claim 1 : The European Union compared to the 
Russian Federation  
58. Any alleged discriminatory treatment between pr oducts from the European Union and 
within the Russian Federation is non -arbitrary and justifiable, as it is merely the consequence of 
the European Union's inability to meet the requirements contained in the mutually agreed 
veterinary certificates. Moreover , identical or similar conditions do not prevail in other EU Member 
States and the Russian Federation, mainly because the European Union has failed to demonstrate 
that other EU Member States are, and will remain, ASF -free – and thus that imports from these  
areas to the Russian Federation do not risk spreading the ASF virus – whereas the Russian 
Federation has taken stringent and effective measures domestically.  
59. Moreover, in contrast to the European Union's claim, the Russian Federation's inability to 
agree  to the terms of the revised language of the veterinary certificate proposed by the European 
Union does not reflect a disguised restriction on trade. Rather, it reflects the fact that the 
European Union has not provided the Russian Federation with reasonab le assurances and 
guarantees that the reduced requirements for ASF -freedom as provided for in the proposed 
revised veterinary certificate will ensure that the exported pork products are indeed ASF -free. This 
could include, for example, information as to wh ether the proposed language envisages that the 
product at issue may originate or be processed in an ASF -infected country.  
60. Moreover, the Russian Federation has engaged in multiple attempts to negotiate veterinary 
bilateral agreements with individual EU Mem ber States. Curiously, the European Union has 
discouraged such initiatives. This too indicates that the Russian Federation's actions do not amount 
to a disguised restriction on trade.  
ii. Discrimination Claim 2 : The European Union compared to 
Ukraine/Bela rus 
61. No discrimination existed with Ukraine as, similar to the situation with the European Union, 
the Russian Federation also agreed and complied with the terms of a similar veterinary certificate 
with Ukraine.50 Consequently, the Russian Federation stopped importing pigs and pork products 
when the Ukrainian veterinary authorities could no longer certify that Ukraine was ASF -free.  
62. No discrimination existed with Belarus, as stated in paragraphs 43 and 44 above.  
d. The Russian Federation's provisional complia nce with the terms of 
the veterinary certificates is consistent with Article 6 of the SPS 
Agreement  
63. The Russian Federation's relevant legislation (e.g. the ASF Instructions and Customs Union 
Decision No. 317) recognizes the concept of disease -free areas pu rsuant to Article 6.2 of the SPS 
Agreement.  
64. In making its decision to provisionally comply with the terms of the veterinary certificates, 
the Russian Federation analyzed the SPS characteristics of the European Union and took into 
account the prevalence of  ASF, the existence of eradication or control programs, and the relevant 
OIE international standards, guidelines and recommendations. This task was rendered particularly 
                                               
49 Panel Report, EC – Biotech , para. 7.2969 (finding that "Article 2.2 excludes from its scope of 
application the kinds of situations covere d by Article 5.7").  
50 Exhibit RUS -136. WT/DS475/R/Add.1  
 
- B-43 - 
 
  difficult by the European Union's failure to provide adequate and timely information t o the Russian 
Federation.  
65. The European Union has not provided the Russian Federation with the necessary evidence 
to demonstrate that its Member States are and are likely to remain ASF -free under Article 6.3 of 
the SPS Agreement. Much of the information pr ovided by the European Union was either outdated, 
irrelevant or incomplete.  
e. The Russian Federation's provisional measure is consistent with 
Article 8 and Annex C of the SPS Agreement  
66. The definition of "control, inspection and approval procedures" under  Article 8 and Annex C 
of the SPS Agreement does not cover the Russian Federation's alleged "failure to modify 
measures" as negotiations between the Members regarding certification are not procedures for 
putting products on a market.51 Moreover, the Appella te Body has explained that the procedures 
referred to in Annex C(1) are those that check and ensure fulfillment of SPS measures, which 
suggests that such measures exist prior to the operation or undertaking of the relevant 
procedures.52 The modification of a measure is thus not covered by Article 8 and Annex C(1) of the 
SPS Agreement.  
f. The Russian Federation Took Steps to Comply with Article 7 and 
Annex B of the SPS Agreement  
67. The Russian Federation immediately notified the European Union (through corresp ondence 
and by telephone) regarding the temporary import restrictions affecting exports from Lithuania 
that were implemented on 25 January 2014,53 so the immediate notification requirement has been 
met.  The nature of the ASF virus and the associated risks of the spread of ASF did not allow the 
Russian Federation to introduce a notice period before the measure affecting exports from 
Lithuania went into effect. The Russian Federation also exchanged comments with the European 
Union and Lithuania regarding the various options for resuming trade.54 With respect to the 
Russian Federation's provisional compliance with the veterinary certificates, the European Union 
has failed to establish that the certification mechanism constitutes an SPS measure to which the 
requirements of Article 7 and Annex B of the SPS Agreement apply.  
 
      
                                               
51 Annex C.1. footnote 7 to the SPS Agreement; and Panel Report, EC –Biotech, para. 7.424.  
52 Appellate Body Report, Australia – Apples , para. 436.  
53 Exhibit RUS -28. 
54 Exhibits RUS -28; and EU -14. WT/DS475/R/Add.1  
 
- B-44 - 
 
  ANNEX B -4 
SECOND PART OF THE I NTEGRATED EXECUTIVE SUMMARY OF THE ARGUM ENTS OF  
THE RUSSIAN FEDERATION  
I. ARGUMENTS REGARDING I MPORT RESTRICTIONS O N THE FOUR ASF-INFECTED EU MEMBER STATES :  
LITHUANIA , POLAND , LATVIA AND ESTONIA  
A. The Russian Federa tion's import restrictions on live pigs, pork and pig 
products from the four infected EU Member States conform to the relevant 
international standard and are consistent with Articles 3.2 and 6 of the 
SPS Agreement  
1. In making an objective assessment as to  whether a measure "conforms to " the relevant 
international standard under Article 3.2 of the SPS Agreement and "embodies the standard 
completely ", the Panel must take into account (a) the proscriptive nature of the relevant 
international provisions; (b) i nherent sequencing of obligations of exporting and importing 
countries contained in the relevant international standard; and (c) any temporal implications from 
dynamic developments in the disease status.1  
2. The Panel 's review of whether the Russian Feder ation's decision was in conformity with the 
applicable international standards and principles for zoning under the OIE Terrestrial Code will, 
necessarily, also constitute an assessment of whether the Russian Federation met the 
requirements of Article 6 of the SPS Agreement.2  Considerable parallels exist between the 
provisions of the OIE Terrestrial Code and Article 6 of the SPS Agreement.3 
1. The Russian Federation 's import restrictions on non -heat-treated 
products conform to Article 3.2 of the SPS Agreeme nt 
a. The pertinent legal provisions of the OIE Terrestrial Code for non -
heat-treated products  
3. The experts have clarified that it is not necessary for an exporting Member to establish a 
"containment zone " under Article 4.3.3.3 of the OIE Terrestrial Cod e.4  Thus, the issues in this 
dispute have now narrowed and the Panel should focus its analysis on whether there was, and is, 
an objective basis for the Russian Federation not to accept the various alleged ASF -free areas 
within the four infected EU Member States.  
4. Both parties agree that OIE Articles 1.4.6, 1.6.1, Chapters 3.1 and 3.2; Articles 4.3.3.1, 
4.3.3.5, 4.3.3.6, Articles 5.1.3, 5.3.7, 15.1.2, 15.1.3, and 15.1.4 of the OIE Terrestrial Code are 
among the provisions of the Code that contain relevan t international standards for establishing and 
assessing zones in this dispute.5  The experts have also acknowledged the potential applicability of 
these provisions.6  
5. Article 5.3.7 of the OIE Terrestrial Code sets out "the sequence of steps to be taken  in 
establishing a zone/compartment and having it recognised for international trade purposes. "7  The 
first phase in this sequence is for the exporting country to (a) establish an OIE -consistent zone 
/compartment, and (b) provide detailed documentation to objectively demonstrate a basis for 
recognition of the disease -free zone for international trade purposes.8  Only when these steps have 
been taken is the importing country in a position to make an objective assessment of whether the 
                                               
1 See Russian Federatio n Responses to Panel Question 306.  
2 See Russian Federation Rebuttal Submission, paras. 50 -55. 
3 See Russian Federation Rebuttal Submission, paras. 50 -55. 
4 Russian Federation Comments to Experts Responses to Panel Question 32, para. 85.  
5 Russian Federati on Opening Statement at the Second Hearing, para. 7.  
6 Transcript of the Panel’s meeting with the Experts and the Parties, paras. 1.263 – 1.268.  
7 See Russian Federation Responses to Panel Question 306, para. 248.  
8 Ibid. WT/DS475/R/Add.1  
 
- B-45 - 
 
  disease -free zone is li kely to remain disease -free.  This sequence for regionalization in the OIE is 
also supported by the jurisprudence.9 
6. Thus, in assessing the conformity of the Russian Federation 's import restrictions on non -
heat-treated products with the OIE Terrestrial C ode, the Panel should consider whether the 
European Union has effectively established ASF -free zones and infected zones, and has provided 
detailed science -based documentation including the following OIE Terrestrial Code provisions:10  
Article 1.6.1:  For zon es established on the basis of self -declaration:  "Member 
Countries should present documentation setting out the compliance of the 
Veterinary Services of the applicant country or zone with the provisions of 
Chapters 1.1, 3.1 and 3.2 of the OIE Terrestrial Code. " 
Article 4.3.3.1:  "The extent of a zone and its geographical limits should be 
established by the Veterinary Authority on the basis of natural, artificial, and/or 
legal boundaries. " 
Article 5.3.7.1.a : "The exporting country identifies a geographical a rea within its 
territory, which it considers to contain an animal subpopulation with a distinct 
health status with respect to a specific disease/specific diseases based on 
surveillance. "   
Article 4.3.3.5:  "For a  zone or compartment , the  Veterinary Authori ty should 
document in detail the measures taken to ensure the identification of 
the subpopulation  and the establishment and maintenance of its health status 
through a  biosecurity plan. "  
Article 5.3.7.1.b :  "The exporting country describes in the biosecuri ty plan for 
the zone the measures which are being, or will be, applied to distinguish such an 
area epidemiologically from other parts of its territory, in accordance with the 
recommendations in the Terrestrial Code. "  
Article 5.3.3.6 : "Relevant animal move ments into and out of the  zone or 
compartment  should be well documented and controlled. The existence of a 
valid animal identification system  is a prerequisite to assess the integrity of 
the zone or compartment ."  
7. The obligations on the importing countr y include the following:  
to "determine[] whether it accepts an area as a zone for the importation of animal 
products " (Article 5.3.7.d);  
to "notif[y] the exporting country of its determination and the underlying 
reasons, within a reasonable period of time ". (Article 5.3.7).11   
8. In evaluating whether the Russian Federation 's provisional determination not to accept the 
zones in the four infected EU Member States was reasonable in accordance with the OIE Terrestrial 
Code, the Panel must decide, based on the  totality of the evidence, in its temporal, epidemiological 
and geographic context, whether the Russian Federation 's decision was "objectively justifiable. "12  
The Panel may not engage in a de novo evaluation of the evidence and must refrain from 
attributin g its own weight or drawing inferences from particular facts and evidence.  The 
appropriate short -hand description of this standard of review for the Panel to apply is whether the 
Russian Federation 's decisions on the EU 's various zones were "objectively j ustifiable. "13  Based on 
this standard of review, the Russian Federation 's decision not to accept the zones within the four 
                                               
9 Panel Report, India—Agricultural  Products , para. 7.262. (emphasis added); Panel Report, US—
Animals , para. 7.249.  
10 Russian Federation Responses to Panel Question 306, para. 250.  
11 Russian Federation Response to Panel Question  306, para. 251.  
12 Russian Federation Response to Panel Questi on 113, para. 190.  
13 Russian Federation Response to Panel Question 113, para. 190.  WT/DS475/R/Add.1  
 
- B-46 - 
 
  infected EU Member States is objectively justified irrespective of the temporal benchmark the 
Panel adopts.  
b. The Russian Federatio n's ongoing provisional decisions not to 
accept ever -changing ASF -free zones  
i. Assessment at the time of the Panel establishment  
9. If the Panel analyzes the Russian Federation 's conformity to the relevant international 
standard at the time of the Panel e stablishment, there is a strong objective basis to find that (a) 
the Russian Federation did not engage in undue delay in waiting until 29 July 2015 to make a 
provisional determination – based on the then available evidence on regionalization in Lithuania, 
Poland and Latvia —and (b) the provisional determination not to accept the zones in the four 
infected EU Member States was justified due to existing uncertainty about the epidemiology of the 
disease; increased ASF outbreaks despite repeated assertions by in fected Member States officials 
that their control measures were effective; and the EU 's failure to provide information regarding 
implementation and effectiveness of its ASF control measures, in the infected and disease -free 
areas.14  
10. Importing Members l egally need not, and indeed, cannot immediately accept zones upon the 
exporting Member 's establishment of the zone and the zoning request.15  Article 6 of the SPS 
Agreement and the applicable OIE provisions necessarily embody a "reasonable period of time " for 
the regionalization process.16  The panel in US—Animals  did not consider a number of months 
post-Argentina 's regionalization request to constitute undue delay .17  However, if the Panel finds 
that Article 6.3 of the SPS Agreement and parallel OIE provision s do not embody a reasonable 
period of time to permit importing Members to impose import restrictions pending the completion 
of a reasonable period of time, the Russian Federation 's claims for the four affected Member States 
should be assessed under Articl e 5.7 of the SPS Agreement.18  
11. Both the importing and exporting country require time to assess and evaluate the substance 
of the applicable ASF control measures, as well as the effectiveness of measures as they are 
actually implemented.19  Additional tim e is needed when outbreaks are occurring rapidly, in a 
spreading geographic area, and without a clear causal basis.  The European Union 's own 2002/60 
Directive mandates time to investigate, develop scientific data, determine the appropriate 
eradication met hods.20  Indeed, over the course of 2014 -2015, as more information became 
available about the epidemiology of ASF in the four infected EU Member States, the infected EU 
Member States adopted or changed their ASF measures, inter alia , to increase wild boar h unting 
and/or increase biosecurity regulation and reduce the number of backyard farms21—measures the 
Russian Federation had always informed local veterinary officials in the affected Member States 
were necessary in the effective control of ASF.  
12. The Eur opean Union did not provide the Russian Federation with relevant detailed 
documentation consistent with their obligations under Article 6.3 of the SPS Agreement and the 
relevant OIE requirements.22  The record establishes that between February and June 2014 , the 
European Union provided a number of sheets of paper but most of the documentation provided 
was neither relevant nor timely to assess the actual implementation of ASF control measures.23  
Thus, by 22 July 2014, the date of the Panel establishment, the Russian Federation received (a) 
only modest information regarding ASF measures implemented for Lithuania and Poland, (b) no 
information with respect to ASF in Estonia and only minimal information concerning the situation in 
Latvia; (c) little relevant scie ntific information to gauge whether ASF -free zones would remain 
                                               
14 See Russian Federation Comment to the European Union’s Response to Panel Question 236.  
15 Ibid., para. 39.  
16 Ibid., para. 40.  
17 Ibid., paras. 40-42. 
18 Russian Federation Co mment to Panel Question 236.  
19 Russian Federation Comment to Panel Question 236.  
20 See, e.g., Russian Federation Comment to Panel Question 236,  para. 44.  
21 See Russian Federation Comment to Panel Question 236, paras. 65 -71. 
22 See e.g., Russian Federation Comment to Panel Question 322; Russian Federation Comment to Panel 
Question 321 (filed 8 October 2015).  
23 See, e.g., Russian Federation Comment to Panel Question 322; Russian Federation Comment to Panel 
Question 321 (filed 8 October 2015).  WT/DS475/R/Add.1  
 
- B-47 - 
 
  ASF-free; and (d) certain relevant information related to wild boar and small backyard production 
operations raised significant doubts in the Russian Federation that the European Union was not  
taking appropriate control measures in Lithuania and Poland.24   
13. Most notably, by late July 2014,25 no documentation was provided about Lithuanian and 
Polish eradication plans, bio -security plans, and EU audits of the veterinarian officials in these two  
Member States to gauge compliance with, Lithuanian and Polish legislation, contingency plans, and 
eradication plans.  Yet it is undisputed that in April 2014, the DG SANTE had received draft 
eradication plans from Poland and Lithuania and approved them on  7 July 2014.26  Similarly, by 
mid-April 2014, DG SANTE had initial reports from a detailed audit reflecting problems in the 
implementation of Lithuanian ASF control measures.  And in mid -June 2014, DG SANTE had similar 
initial audit reports describing prob lems in effective implementation of Polish ASF measures.27  Yet 
the European Union never provided the Lithuanian and Polish audit reports directly to the Russian 
Federation and the earliest such reports were available on -line were November 11 and 23, 2014, 
respectively.28  Most importantly, the confidential eradication plans for Lithuania and Poland were 
not made available to the Russian Federation until March 2015.29  The European Union has failed 
to explain adequately the delays in providing this crucial inf ormation.30  Moreover, the European 
Union completely contradicted itself in arguing late in the proceedings that the eradication plans 
were irrelevant to a regionalization case as mid -to-long-term control measures despite having 
focused primarily on eradica tion plans as an important basis for its ASF control measures in its 
Second Written Submission.31     
14. Towards the end of July 2014, a sharp increase in ASF outbreaks in Lithuania, Poland, and 
Latvia occurred.32  The worsening ASF situation, in addition t o the European Union 's failure to 
provide the necessary information regarding implementation of demonstrably ineffective ASF 
control measures under Articles 5.3.7 and 4.3.2 of the OIE Terrestrial Code, and Article 6.3 of the 
SPS Agreement led the Russian F ederation to provisionally determine under the conditions existing 
as of 29 July 2014, that the European Union had not demonstrated that its ASF -free zones in those 
three countries would remain ASF -free.33  
ii. Assessment after date of Panel Establishment  
15. Should the Panel assess the European Union 's claims regarding the measures applicable to 
the four affected Member States after the date of the establishment of the Panel, then it must take 
into account undisputed evidence that during 20 months of ASF o utbreaks, the original established 
ASF-infected zones and corresponding ASF -free areas in the four infected EU Member States went 
through a series of frequent and significant legislative changes.34 Most significantly, the borders of 
the ASF -free zones chang ed a total of 20 times.35 
 
16. Between early 2014 and September 2015, a total of 18 ASF outbreaks occurred in ASF -free 
zones in Lithuania, Latvia and Estonia.36  The latest of these outbreaks in alleged ASF -free zones 
occurred on 22 May 2015 —not August 2014 as repeatedly and incorrectly asserted by the 
European Union.37  The OIE Secretariat and the Panel 's appointed experts  have all agreed that 
even one ASF outbreak within the alleged ASF -free zone immediately results in the loss of ASF -
                                               
24 Russian Federa tion Comment to Panel Question 322; Russian Federation Comment to Panel Question 
321 (filed 8 October 2015).  
25 Russian Federation Comments to Panel Questions 234, 235, 236.  
26 Russian Federation Comment to Panel Question 322, para. 257.  
27 Russian Federation  Comment to Panel Question 322, para. 257.  
28 Russian Federation Comment to Panel Question 236, para. 58.  
29 See, e.g., Russian Federation Second Written Submission, para. 64.  
30 See European Union Response to Panel Question 19, paras. 79 -82. 
31 See Russian Fe deration Comment to Panel Question 234.  
32 See Exhibit RUS -297 (revised).  
33 See Russian Federation Comment to Panel Question 236; Russian Federation Response to Panel 
Question 268.  
34 Russian Federation Opening Statement at the Second Hearing, para. 30.  
35 See Exhibit RUS -297 (revised).  
36 Russian Federation Opening Statement, para. 31.  
37 See Exhibit RUS -297 (revised).  WT/DS475/R/Add.1  
 
- B-48 - 
 
  free status.38  Yet the  European Union veterinary authorities chose against recovering the ASF -free 
status for the original ASF -free zones consistent with Article 15.1.4 of the OIE Terrestrial Code.  
Instead, they established new ASF -free zones that carved out the "infected " geographic regions 
from the old ASF -free zone —presumably based on Article 15.1.2 of the OIE Terrestrial Code.39  
This means that each time the European Union "redefines " the contours of their ASF -free areas 
through adopting new Commission Implementing Decision s, it establishes a new ASF-free area.  In 
other words, instead of trying to recover the ASF -free status of its original ASF -free zones, the 
European Union has chosen to bypass these complexities and simply proclaim new ASF -free areas.  
17. From a legal an d practical perspective under Article 6.3 of the SPS Agreement and Article 
5.3.7 of the OIE Terrestrial Code, each time such a new ASF -free zone is established, the 
exporting country must provide the importing country with updated information pertinent to the 
evolving ASF situation.40  In this regard, zone changes occurring with regularity in the four infected 
EU Member States can be divided into three different categories according to their severity, nature 
and location of the outbreak(s) precipitating the zone changes: ASF outbreaks in the ASF -free 
zones; ASF outbreaks in the Part I zones; domestic pig outbreaks in part II zones.  The 
extraordinary number of zone changes in the infected EU Member States are coupled with an 
ongoing evidentiary burden on the European Union to provide "detailed documentation " to justify 
these zones. Yet, the audit reports (which were never provided to the Russian Federation) and 
eradication reports (provided in March and May 2015) revealed problems with implementation of 
ASF me asures in Poland and Lithuania, and the lack of a focus on reducing significantly wild -boar 
populations and numbers of back -yard low -biosecurity farming operations.41  And no updated 
eradication plans have ever been produced to the Panel or the Russian Fede ration, despite the 
European Union 's own Council Directive 2002/60 requiring updated reports every six months.42   
iii. Arguments relevant for all temporal dimensions  
18. Irrespective of the temporal benchmark the Panel chooses, the four infected EU Member 
States have failed to establish OIE -consistent zones.  For instance, the four  individual EU Member 
States have failed to present information with respect to the  
19. implementation of a traceability system of animals in the infected areas, as is considere d a 
prerequisite to assess the integrity of a zone under Article 4.3.3.6 of the OIE Terrestrial Code.43  
Nor have individual infected EU Member States identified any country -specific "biosecurity plan " 
under Article 4.3.3.5 of the OIE Terrestrial Code —let alone an updated plan reflecting the dynamic 
developments —and earlier failures to control ASF based on any initial plans.44   
20. Moreover, individual ASF infected EU Member States and the European Union were unable to 
demonstrate the credibility and capabil ity of the veterinary services of the four ASF -infected EU 
Member States to effectively control ASF consistent with Chapters 3.1 and 3.2 of the OIE 
Terrestrial Code, as required under Article 1.6.1 of the OIE Terrestrial Code.45  These doubts about 
the vete rinary services ' failure to adopt measures appropriate to the epidemiology of the disease 
increase each time a new ASF -free zone was established and then discarded as ASF outbreaks 
surged.  And these doubts were reasonably based on the high number of wild boar present in the 
infected EU Member States in addition to the large number of backyard farms, particularly in 
Lithuania, Poland and Latvia.  Moreover, the Russian Federation 's skepticism was triggered by 
multiple outbreaks that took place outside the AS F-infected areas.46  For all these reasons, the 
individual EU Member States did not adhere to the relevant provisions in the OIE Terrestrial Code .   
                                               
38 For example, Dr. Thomson provides that “[i]f even one outbreak occurs in a designated ASF -free 
zone, the free zone immediately  loses its ‘free ’ status ". (emphasis added). Dr. Thomson’s Response to Panel 
Question 32, para. 4.22; Professor Penrith likewise assert that “[o]ne outbreak in the free area would be 
enough to alter its status ".  Professor Penrith’s Response to Panel question 6, para. 4.1 05. 
39 Russian Federation Opening Statement at the Second Hearing, para. 32.  
40 Russian Federation Opening Statement at the Second Hearing, paras. 32, 35.  
41 Russian Federation Comment to Panel Question 321 (filed 8 October 2015).  
42 Russian Federation Opening  Statement at the Second Hearing, para. 38.  
43 Russian Federation Opening Statement at the Second Hearing, para. 36  
44 Russian Federation Opening Statement at the Second Hearing, para. 36  
45 Russian Federation Response to Panel Question 306, para. 256.  
46 See Exhibit RUS -297 (revised).  WT/DS475/R/Add.1  
 
- B-49 - 
 
  21. The Russian Federation frequently communicated its inability to accept the proposed ASF -
free zones.47  It also communicated and updated its continuing provisional assessment with 
European Union SPS officials, and communicated the underlying reasons to keep in place the 
import restrictions with respect to the four infected EU Member States.  Because of the ext remely 
fluid and dynamic disease situation, the ongoing provisional assessments of the Russian Federation 
was consistent with the recommended procedures in the OIE Terrestrial Code Article 5.3.7.48  
Similarly, the Russian Federation conformed to the relevan t provisions in the OIE Terrestrial Code 
in its assessment of the zones within the four infected EU Member States by examining the quality 
and credibility of the veterinary service (as set out in Article 1.1, Chapters 3.1 and 3.2 of the OIE 
Terrestrial Cod e, and Article 5.3.7); its own animal health situation with respect to the disease 
concerned (Article 5.3.7); other relevant OIE provisions such as whether the zones were 
established by taking into account the epidemiology of the disease (Articles 4.3.3.5,  4.3.3, 4.3.2); 
whether adequate movement restrictions were put in place (Article 4.3.3; relevant provisions of 
Chapter 15.1); the prevalence of the disease (Article 4.3.3); the occurrence of outbreaks outside 
the ASF -infected areas (Articles 15.1.2, 15.1. 3, 15.1.4); and whether the European Union had 
provided the Russian Federation with sufficient information about each of its zones, including 
eradication and biosecurity reports (Articles 4.3.3.5 and 5.3.1, 5.37 of the OIE Terrestrial Code).49  
Based on all  these factors, the Russian Federation engaged in a "general assessment of the risk " 
(Article 5.3.7) that the EU 's ASF -free zones are and will remain ASF -free.50  
2. The Russian Federation 's import restrictions on heat -treated 
products conform to Article 3. 2 of the SPS Agreement  
22. The relevant OIE Terrestrial Code provisions that constitute the international standard for 
heat-treated pork products are set out in Articles 15.1.14 -15.1.17 of the OIE Terrestrial Code.  
These provisions permit the trading of p ork products that "have been processed in an 
establishment approved by the Veterinary Authority for export purposes so as to ensure the 
destruction of the ASF , and that the necessary precautions were taken after processing to avoid 
contact of the product w ith any source of ASF. "51  There is no temperature requirement set out in 
Chapter 15.1 of the OIE Terrestrial Code.52  Thus, an importing country 's obligations under 
Chapter 15.1 are triggered only when each infected EU Member State has demonstrated (a) that  
the products have been processed to ensure destruction of the virus; and (b) that "the necessary 
precautions were taken after processing to avoid contact of the product with any source of ASF. "   
23. The European Union has not submitted any evidence demon strating compliance of the four 
individual EU Member States with Articles 15.1.14 -15.1.17 of the OIE Terrestrial Code.53  Such 
compliance cannot be presumed by an exporting Member. With the European Union failing to 
establish an evidentiary basis for its al leged compliance, the Russian Federation was not required 
under Chapter 15.1 of the OIE Terrestrial Code to accept heat -treated products from the four ASF -
infected Member States.  Indeed, the Russian Federation properly complied with Article 3.2 of the 
SPS Agreement and the international standard for heat treated products with respect to measures 
involving the four infected EU Member States.   
B. The Russian Federation 's import restrictions are consistent with Article 
5.5 of the SPS Agreement   
24. The Russ ian Federation has in place robust ASF control measures in line with the OIE 
Terrestrial Code provisions.  Moreover, ASF import legislation set out in Customs Union Decision 
317 incorporates regionalization "carried out in accordance with the recommendatio ns of the World 
Organization for Animal Health [OIE] ".  To the extent the OIE Terrestrial Code recommends 
                                               
47 See, e.g., Russian Federation First Written Submission, 80 -96.; Russian Federation Second Written 
Submission, paras. 12 -18; Russian Federation Response to Panel Question 268, paras. 73 -75. 
48 Russian Federation Response to Panel  Question 306, para. 257.  
49 Russian Federation Response to Panel Question 306, para. 257.  
50 See, e.g, Russian Federation First Written Submission, paras. 57 -213; Russian Federation Rebuttal 
Submission, paras. 7 -126; Russian Federation response to the Panel ’s Question 101; Russian Federation 
Opening Statement to the Second Hearing, paras. 6 -43. 
51 See, e.g, Russian Federation Opening Statement at the First Hearing, paras. 36 -39; Russian 
Federation Comments to the European Union’s Responses to Panel Question 2 41, paras. 92 -93. 
52 Russian Federation Response to Panel Question 252, paras. 5 -7. 
53 Russian Federation’s Comment to the European Union’s Response to Panel Question 281.  WT/DS475/R/Add.1  
 
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  importing countries to accept disease -free areas and areas of low disease prevalence, the Russian 
Federation acts accordingly.  
25.  The European Unio n has continued to assert —but never demonstrated with any credible 
evidence —that the Russian Federation has adopted a low ALOP as reflected by the alleged 
ineffectiveness of the Russian Federation 's domestic measures.54  This claim is incorrect.  
26. First, it is contradicted by the unrebutted testimony and declarations of Russian Federation 
SPS experts  Georgy Djailidi , Tatyana Ausheva, Konstantin Gruzdev, and Chairman of the board of 
AGROECO Group, Vladimir Maslov , demonstrating the stringency and effectiven ess of Russian ASF 
control measures.55  In particular, the Russian SPS officials have engaged in appropriate intensified 
wild boar control measures, and rapid reduction of pigs kept in backyard farms through 
compensation programs.  As a result of these and other ASF control measures, a significant part of 
the Russian Federation is ASF free, has low ASF prevalence or has not had an ASF -outbreak for the 
last three years.56   
27. Second, the European Union fails to address or rebut evidence the Russian Federatio n has 
presented in support of its high ALOP, despite the fact that the Appellate Body noted in  India—
Agricultural Products  that the Panel is expected to "accord weight " to that Member 's expression of 
ALOP, especially when it has been expressed with suffici ent precision, consistently, and in advance 
of the panel proceeding as the Russian Federation has done.57  
28. Third, a domestic ban is neither envisioned nor mandated by the OIE Terrestrial Code as a 
precondition to legitimately impose country -wide restric tions on imports upon failure of the 
exporting country to demonstrate the establishment of OIE -consistent infection and disease -free 
zones.58  The European Union has never rebutted the extensive evidence that it is common 
practice for the European Union to ban completely all imports from trading partners affected with a 
disease while adopting regionalization measures for the same disease at home.59  The unrebutted 
examples highlight the fact that for purposes of Articles 2.3 and 5.5 of the SPS Agreement, a 
country -wide domestic standstill is not required as a precondition to legitimately restrict country -
wide imports under the OIE Terrestrial Code.   
29. Finally, the experts have agreed in their written remarks that the OIE Terrestrial Code 's 
zoning provisions  are formally applicable only to exporting country zones, and not to the infection 
or protection zones established domestically by importing countries also suffering the same 
disease.60   
C. The Russian Federation's import restrictions on the infected EU Me mber 
States are not discriminatory under Article 2.3 of the SPS Agreement  
30. Article 2.3 of the SPS Agreement refers exclusively to WTO Members. To prevail on a 
discrimination claim as complainants, the Panel needs to find that all elements of Article 2.3  of the 
SPS Agreement have been violated.  This includes the requirement that there exists discrimination 
between Members.  The European Union cannot establish this with respect to Belarus, a non -WTO 
Member, and as such its discrimination claim fails.61   
                                               
54 See e.g., European Union First Written Submission, para. 248; European Union Second Written 
Submission, para. 150.  
55 See e.g., Declaration of Georgy Djailidi (Exhibit RUS -307); Declaration of Tatyana Ausheva. (Exhibit 
RUS-308); Declaration of Konstantin Gruzdev (Exhibit RUS -309); Russian Federation Opening Statement, 
paras. 6 -12 
56 See, e. g., Russian Federation Opening Statement at the Second Hearing, para. 45.  
57 See Russian Federation Second Written Submission, para. 143.  
58 Russian Federation Second Written Submission, para. 145; Russian Federation Response to Panel 
Question 190, para. 364 ; Russian Federation Response to Panel Question 266. paras. 51 -52. 
59 Examples of this are set out in the Russian Federation Rebuttal Submission, paras. 154 -157; Russian 
Federation Response to Panel Question 190, para. 363; Russian Federation Response to Pa nel Question 266, 
para. 55.  
60 See, e.g., Dr. Gideon Bruckner’s Response to Panel Question 20, para. 2.158;  Dr. Gavin Thomson’s 
Response to Panel Question  33, para. 4.30.  
61 See, e.g., Russian Federation Opening Statement, para. 48.  WT/DS475/R/Add.1  
 
- B-51 - 
 
  31. The European Union admits in its Second Written Submission that presently, "there may . . . 
not be any discrimination "62 with respect to Ukraine.  With respect to the EU 's earlier 
discrimination claims, the Russian Federation notes that it initially allo wed regionalization from 
Ukraine based on the shared historical ties and mutual trust that still existed between the two 
countries in January 2014.63  Indeed, both the Russian Federation and Ukraine are Members of the 
Commonwealth of Independent States (CIS ) and their key ASF control regionalization legislation in 
particular, and SPS legislation, in general, has considerable parallels —a product of their shared 
history under the Soviet Union.  However, the Russian Federation engaged in strict follow -up 
inspec tions to ensure that regionalization in Ukraine was in fact carried out effectively and could 
guarantee that the ASF -free areas of Ukraine would remain ASF -free.  When it discovered 
violations in its regionalization measures, the Russian Federation decided , as it did in the European 
Union, not to accept regionalization measures in Ukraine.64 However, for a period of time it was 
able to continue trade from high biosecurity compartments.65 
D. The Russian Federation 's import restrictions are consistent with Arti cle 
5.6  
32. The European Union has not met its burden under Article 5.6. of the SPS Agreement and 
demonstrated that there exists another measure that is reasonably available that achieves the 
Russian Federation 's ALOP and is significantly less trade restr ictive.   
33. The European Union incorrectly claims that the Russian Federation 's measures are more 
trade restrictive than necessary by deriving Russia 's ALOP from the challenged measures.  
However, if an ALOP is derived from the challenged measure, then t he measure by definition can 
never be more trade -restrictive than required to achieve the appropriate ALOP.  The European 
Union in response to the Panel 's Question 150 disagrees with this logic, stating that "the ALOP is 
inferred only from those elements t hat are not overtly protectionist. "66  Yet, the European Union 
fails to point at any legal provisions that support such circular legal reasoning.  Indeed, whether or 
not elements of a measure are "overtly protectionist " is for the Panel to decide; not for o ne of the 
Parties to unilaterally presume.  Moreover, the European Union has failed to demonstrate how 
conforming to the relevant international standard —which reflects a medium/high ALOP —would 
meet what it considers to be Russia 's "low" ALOP.67  Finally, th e European Union 's alternative is 
not less trade restrictive given that the Russian Federation already complies with the international 
standard.68 
E. There is no basis for an Article 8, Annex C undue delay claim with respect 
to regionalization of the four i nfected Member States  
34.  The record supports the conclusion that the four EU Member States failed to provide the 
Russian Federation with comprehensive, timely and adequate information of implementation of 
effective ASF control measures, not only in its initial ASF -free zone regionalization request, but 
also subsequently with respect to each legislative change to the borders of the alleged ASF -free 
zone.69  The significant and ongoing increases in ASF outbreaks —including those in alleged ASF -
free zones —eclipsed the ASF -free status of the alleged ASF -free zone.   
35. The Russian Federation 's request for additional information from the four infected EU 
Member States is not evidence that it was seeking to delay the assessment and resolution of the 
individual M ember State zoning requests.  The European Union raised no objection to providing the 
Russian Federation with some of the requested information with respect to the four ASF -infected 
EU Member States.70  The relevance and timely nature of the Russian Federat ion's information 
                                               
62 European Union Second  Written Submission, para. 138.  
63 Russian Federation Response to Panel Question 259, para. 22  
64 Russian Federation Response to Panel Question, para. 23.  
65 Russian Federation First Written Submission, para. 330.  
66 European Union response to Question 150, pa ra. 313.  
67 See, e.g., Russian Federation Response to Panel Question 304, paras. 217 -218. 
68 See, e.g., Russian Federation Comment to Panel Question 286, para. 149.  
69 Russian Federation, Closing Statement at the Second Hearing, para. 5; Russian Federation Fi rst 
Written Submission paras. 151 -164; for link with obligations under Article 5.7 SPS Agreement, see e.g., 
Russian Federation Second Written Submission, paras. 185 -193. 
70 See e.g., Russian Federation Closing Statement at the Second Hearing, para. 3; Russi an Federation 
Comment to the European Union’s Response to Panel Question 322.  WT/DS475/R/Add.1  
 
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  request with respect to the four infected EU Member States has been confirmed by the experts.71  
Thus, with respect to the four infected EU Member States, the EU 's claims under Article 8 and 
Annex C of the SPS Agreement must fail.   
II. ARGUMENTS RELATED TO T HE RUSSIAN FEDERATION 'S PROVISIONAL COMPLI ANCE WITH THE 
VETERINARY CERTIFICA TES 
A. The Russian Federation 's provisional compliance with the veterinary 
certificates is not a measure attributable to the Russian Federation  
36.  The facts o n the record indicate that the so -called "EU wide ban " is not a measure directly 
attributable to the Russian Federation.  
37. First, the legal basis of the relevant veterinary certificates is the 2004 EU -Russia 
Memorandum and the forms of bilateral certifi cate initialed by competent officials of Russia and the 
European Union in 2006.72 As this Memorandum and the forms of bilateral certificate are bilateral 
in nature, it cannot be considered a "national " Russian measure.  Indeed, the bilaterally agreed 
forms of veterinary certificates are a reflection of the will of both parties.  There is no unilateral 
right to nullify the document.  Therefore, the Russian Federation cannot unilaterally withdraw 
from, nor amend, the provisions of the veterinary certificate.  Moreover, the Russian Federation is 
not allowed to unilaterally require any veterinary certificate or other document produced in the 
form other than the form of the bilateral veterinary certificate agreed with the European Union.  
Hypothetically, such an a ction, if taken, could be considered as a WTO inconsistent measure that 
would effectively invalidate the bilaterally agreed form of certificate contrary to Russian 
commitment in paragraph 893 of the Working Party Report.  And such measures would be 
attribu table to the Russian Federation.  
38. Second, the implementation of the agreed certificate is not a measure that might be 
attributable to the Russian Federation.73  The bilateral certificate is a document agreed between 
the competent authority of Russia and  the competent authority of the European Union.  It 
establishes the form of certificate that must be produced and signed by a competent veterinary 
official of the European Union.  In this document the competent veterinary official of the relevant 
European Union Member State certifies that the product at issue indeed originates from the 
territory of the European Union and that such territory has been ASF -free for three years.  This 
document then accompanies the respective consignment of goods exported from t he European 
Union to the Russian Federation.  At the Russian border, the Russian competent official checks the 
validity of the certificate issued by European Union competent officials in accordance with the form 
agreed, and then accepts the goods. However,  the European Union 's veterinary officials, not the 
Russian Federation 's, were unable to certify compliance of the products at issue pursuant to the 
conditions set out in the bilaterally agreed veterinary certificates.  
39. The bilaterally agreed certifica tes are different from the ones adopted at the national level.74  
By the decision of the Customs Union Commission, common Customs Union forms of certificates 
were adopted before Russia 's accession to the WTO.  They serve the same purpose —the veterinary 
official downloads the form of such certificate, signs it, and gives it to an exporter willing to trade 
with Russia.  At the time of Russia 's Accession, the European Union insisted that it was not willing 
to use these forms of certificates adopted on the Custo ms Union level (now the present Eurasian 
Economic Union of which Russia is a Member), and insisted that a special bilateral certificate 
negotiated earlier with the Russian Federation to remain in force.  Because the European Union 
was apparently concerned that Russia might decide unilaterally to abrogate or modify the text of 
this agreed certificate, the European Union insisted on the inclusion of a specific commitment in 
paragraph 893 to Russia 's Working Party Report.  This granted the European Union the s ecurity 
that the Russian Federation would not unilaterally abrogate the validity of the agreed bilateral 
certificate.  But what gave the European Union the right to insist on the agreed certificate also 
imposed upon it an obligation  to implement that certi ficate until negotiated otherwise with the 
Russian Federation.   
                                               
71 See, e.g, Russian Federation Comment to Panel Questions to the Experts 12 and 13.  
72 See Russian Federation Opening Statement at the Second Hearing, paras. 50 -51. 
73 Russian Fede ration Opening Statement at the Second Hearing, para. 52.  
74 Russian Federation Opening Statement at the Second Hearing, para. 53.  WT/DS475/R/Add.1  
 
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  40. Indeed, the "implementation " or "action " is the European Union 's veterinary authorities ' 
inability to certify absence of ASF within the entire EU and thus to issue the necessary documents  
required for export of the relevant pork products to the Russian Federation.75  There can be no 
implementation of the certificate by the Russian Federation because that would represent a second 
step in the process, contingent on the European Union 's veteri nary authorities to carry out the first 
step, i.e., issuing export certificates in accordance with the terms of the bilaterally agreed form.  
Rather, the initial implementing party is the one taking the necessary first step.  In the situation in 
which the European Union is unable to provide a valid certificate, the process cannot proceed to a 
second step.  Therefore, in that present situation, there is no implementation of a measure that 
can be attributed to the Russian Federation.  Moreover, any certificat ion requirement and 
procedures are applied by the EU officials issuing the certificate.  
B. The underlying EU -Russia veterinary certificate is and continues to be 
valid  
41. The terms of the EU -wide veterinary certificates are recognized by the European Uni on and 
continue to be valid – so much so that the European Union has argued their continued validity 
precludes individual Member States from negotiating directly with the Russian Federation.76  This 
demonstrates that the European Union recognizes the presen t relevance and applicability of that 
certificate with respect to trade in live pigs and pork products between the European Union and the 
Russian Federation.   
42. Further evidence of the continued validity of the certificate is that they were a term of th e 
Russian Federation 's WTO membership.77  The legal basis of the Russian Federation 's position is 
found in Article XII:1 of the Agreement Establishing the World Trade Organization; paragraph 3 of 
the Protocol of Accession of the Russian Federation; and para graphs 893 and 1450 of the Working 
Party Report on the Accession of the Russian Federation. Accordingly, the Russian Federation and 
the EU committed themselves to maintain the validity of the certificates until such time as "an 
export certificate was agree d with a CU Party based on the agreed positions of the other CU 
Parties. "  As no such agreement had been reached by the end of January 2014, the Russian 
Federation was obliged pursuant to the terms of its WTO accession to continue to rely on those 
certific ates.  However, we believe that this can be called "provisional " compliance as we expect 
that the certificate will be renegotiated between the EAEU (former CU) and the European Union as 
set out in paragraph 893 of the Working Party Report.  
43. All Members  agreed to the terms of the Russian Federation 's accession, including paragraph 
893 of the Working Party Report.78  It follows that such protocol provisions must be consistent with 
the SPS Agreement.  Indeed, were the Panel to decide otherwise, then its rec ommendations and 
rulings on this issue would lack a sufficient legal basis, as such recommendations and rulings 
"cannot add to or diminish the rights and obligations provided in the covered agreements, " 
pursuant to Article 3.2 of the DSU.   
44. Finally, as  the Russian Federation is not in a position to unilaterally modify the form of 
certificate bilaterally agreed with the European Union, the Russian Federation has on numerous 
occasions sought to renegotiate the current European Union -Russian Federation vet erinary 
certificates with the European Union as a whole.79  For example, the Russian Federation explained 
in a letter dated 5 February 2014 to the European Union that it met with the Customs Union to 
discuss the provisional measures taken with respect to AS F;80 talks were held between the 
European Union, the Customs Union and the Eurasia Economic Commission with respect to 
amending the certificates on 9 February 2014;81 the Parties discussed the certificate issue in 
                                               
75 Russian Federation Opening Statement at the Second Hearing, para. 54.  
76 European Union Answers to the Panel’s Question 21, p ara. 88.  
77 See e.g., Russian Federation Second Written Submission, paras. 177 -179; Russian Federation 
Opening Statement at the Second Hearing, para. 56; Russian Federation Opening Statement at the First 
Hearing, para. 50.  
78 Russian Federation Opening State ment at the Second Hearing, para. 57.  
79 Russian Federation’s Second Written Submission, paras. 207 -214; See Certificate Chronology (Exhibit 
RUS-218).  
80 Certificate chronology, item 15 (Exhibit RUS -218) (Citing Letter from the Russian Veterinary Service 
to the EU Veterinary Service, 5 February 2014, FS -SD-8/1640 (Exhibit EU -84)). 
81 Certificate chronology, item 18 (Exhibit RUS -218) (Citing Letter from the Russian Veterinary Service 
to Slovakia, 9 February 2014, ФС -НВ-8/2549 (Exhibit RUS -211)).  WT/DS475/R/Add.1  
 
- B-54 - 
 
  Moscow on 21 February 2014, where they agree d it would have to be modified in order for trade to 
be resumed, etc.82  Expert consultations between the European Commission and the Russian 
Federation took place in the months of March, April, and May 2014, which – as demonstrated by 
the chronology  – involved multiple in person meeting and telephone negotiations.  As 
demonstrated by the chronology, meetings about revising the veterinary certificate also actively 
involved the Customs Union.  The chronology, which remains largely undisputed by the European 
Union, demonstrates the good faith efforts of the Russian Federation in an attempt to resolve the 
certificate issue.  
45. Further, during 2014, the Customs Union, on behalf of the Russian Federation, engaged in 
various negotiations with both the European U nion, and with a handful of EU Member States.  The 
intent of the negotiations was to attempt to circumvent the current inability of the EU officials to 
certify exports from the European Union as a result of the language in the EU -Russia certificates.   
46. Yet despite these efforts, the Parties have yet to reach a final agreement.  The European 
Union has rejected the Russian Federation proposal for a "two-step plan " for regionalization, which 
involved resuming imports from the European Union 's Western count ries that were located far 
away from the infected area as an intermediary solution to the problem, after which the countries 
at risk could be discussed.83  It should be stated that if there was a possibility for Russia to 
unilaterally introduce amendments t o the bilaterally agreed certificates or just to abrogate the 
term of its validity the Russian Federation might have imposed this plan in respect of exports from 
the EU, thus adopting a measure attributable to Russia.  However, the bilateral nature of the 
agreement and the unwillingness of the European Union to agree on possible amendments 
prevents Russia from actions that might be attributable to Russia.  The Russian Federation further 
proposed to engage in bilateral negotiations with individual EU Member States.84  But the 
European Union insists on amending the veterinary certificates on its own terms.   
C. In the alternative, the Russian Federation's provisional compliance with 
the terms of the veterinary certificates is justified under Article 5.7  
47. In the event that the Panel does consider this to be a measure, the Russian Federation 's 
provisional compliance with Article 5.7 of the SPS Agreement is justified on a precautionary 
basis.85  First, there continues to exist insufficient scientific evidence to  conduct a risk assessment 
for the entire European Union.  For instance, the 2015 EFSA report reflects continuing scientific 
uncertainty about the epidemiology of ASF.  For example, it noted "high uncertainty about the 
distance [of wild boar] travel "86 and highlighted the importance of carcasses in spreading the 
ASF—of which only 10 percent are likely identified87 – which previously was not well understood.  
Moreover, the 2015 EFSA report concluded that targeted, more intensified hunting would be an 
effective  way to eradicate ASF in wild boar, in contrast to findings that were made in the EFSA 
2010 report.  Furthermore uncertainty continues to exist as to whether survival of wild boar can in 
fact transmit ASF over longer periods of time.88  Finally, the EFSA 20 15 report concludes that no 
correlation has been found between wild boar density and ASF spread.89  This contradicts previous 
findings in the European Union reports repeatedly concluding that "[s]preading of ASF in wild boar 
correlate with high density of w ild boar population. "90  This further confirms and highlights the 
                                               
82 Certificate chronology, item 22 (Exhibit RUS -218) (Citing Letter from the EU Veterinary Se rvice to the 
Russian Veterinary Service, 25 February 2014, SANCO/G7/PD/mh(2014)515243 (Exhibit RUS -197)).  
83 Certificate chronology, item 26, 4 March 2014 (Exhibit RUS -218) (Citing Rosselkhoznadzor news, 
“Negotiations between Sergey Dankvert, Head of Rossel khoznadzor, and Alex Van Meeuwen, Ambassador of 
the Kingdom of Belgium, " 4 March 2014 (Exhibit RUS -234)); See also  Certificate chronology, item 57 (Exhibit 
RUS-218) (Citing Rosselkhoznadzor News, “Working meeting between Head of Rosselkhoznadzor Sergey 
Dankvert and heads of national veterinary  Services and Industrial Associations from Denmark, France, the 
Netherlands and Italy ", 20 November 2014  (Exhibit RUS -87). 
84 Russian Federation Second Written Submission, paras. 215 -218. 
85 See e.g., Russian Federation  First Written Submission paras. 350 -382; Russian Federation Second 
Written Submission, paras. 185 -203; Russian Federation Opening Statement at the Second Hearing, paras. 61 -
67. 
86 Scientific Opinion on African Swine Fever, EFSA Panel on Animal Health and W elfare (AHAW), EFSA 
Journal 2015;13(7):4163, p. 29.  (Exhibit RUS -293).  
87 Ibid. p. 34.  
88 Russian Federation Comments to Experts Responses to Panel Question 8, paras. 14 -16. 
89 Scientific Opinion on African Swine Fever, EFSA Panel on Animal Health and Welfar e (AHAW), EFSA 
Journal 2015;13(7):4163, p.3.  (Exhibit RUS -293).  
90 Latvia PAFF meeting, African swine fever in Latvia (update). January 13 -14, 2015. (Exhibit RUS -318).  WT/DS475/R/Add.1  
 
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  uncertain scientific evidence with respect to ASF control in wild boar that continues to exist to 
date.   
48. Second, the Russian Federation is still waiting to receive information from the E uropean 
Union necessary to complete an adequate assessment of the risk of the spread of ASF.91  The 
Russian Federation has quite properly focused its questions on the control measures and data 
resulting from surveillance in the EU Member States not currentl y suffering infections of ASF.  The 
European Union continues to take the position —one year after these EU -wide questions were 
provided —that important aspects of this information are irrelevant, failing to provide the Russian 
Federation with key information .  Among the information that the European Union has failed to 
provide is information about monitoring and surveillance practices in all EU Member States.92  
Given the important role of wild boar in spreading the disease and the high density of wild boar in  
the non -infected EU Member States, this information would be particularly essential.   
49. As late as June 2015, the European Union denied the Russian Federation 's request for data 
on ASF surveillance conducted in the non -ASF infected EU Member States.93  Yet while it fails to 
provide this highly relevant information, the European Union claims that the "vast majority " of its 
territory qualifies as "historically free " under the OIE Terrestrial Code.94  The European Union fails 
to understand that historical fr eedom from ASF is contingent on having in place an early detection 
system and measures to prevent disease introduction and no evidence that the disease has 
infected wildlife.  Moreover, experts have agreed that the European Union taken as a whole cannot 
be considered historically free of ASF.  Thus, the European Union has not demonstrated that it 
warrants the status "historically free " under Article 1.4.6 of the OIE Terrestrial Code.  
50. Third, the pertinent information available indicates a significant ri sk that ASF may spread to 
other parts of the European Union.  In this regard, the Russian Federation has cited to a number of 
scientific studies, including a report by the German Federal Research Institute for Animal Health, 
findings by Gallardo et. al, le ad ASF scientists, as well as wild boar migration patterns.95  
51. Fourth, the Russian Federation continues to seek additional information and is reviewing its 
provisional compliance with the veterinary certificates within a reasonable period of time.96  Here, 
any delay in negotiating a new veterinary certificate is the result of the European Union 's failure to 
provide the Russian Federation with guarantees that the new certificate will in fact keep ASF out of 
the production cycle, in light of the ever -worsen ing ASF conditions in the European Union.  The 
highly dynamic, and ever -worsening ASF situation in the EU Member States indicates reason for 
caution, especially given that to date, the Russian Federation has not received surveillance data 
from the non -ASF infected Member States.   
D. The Russian Federation 's provisional measure is consistent with Article 8 
and Annex C of the SPS Agreement  
52. The recent jurisprudence set out in US-Animals  supports the Russian Federations ' arguments 
that the European Union 's claims under Article 8 and Annex C must also fail.97  In the event that 
the Panel considers adherence to the provisional certificates to constitute an SPS measure 
attributable to the Russian Federation, the Russian Federation has already set out that it re views 
its provisional measures on a regular basis, but that the European Union 's failure to provide 
sufficient information has resulted in the current delay.98  Indeed, one or more expert has 
considered relevant a number of questions asked by the Russian Fe deration with respect to all EU 
Member States that are part of the EU Customs Union.  While experts can, for legitimate reasons 
and in good faith, disagree as to what information they deem relevant, what is important is 
                                               
91 See e.g., Russian Federation Second Written Submission, para. 195; Russian Federation First Written 
Submission, paras. 367 -370.; Russian Federation Opening Statement at the Second Hearing, para. 62.  
92 See Russian Federation Opening Statement at the Second Hearing, para. 62.  
93 Russian Federation Opening Statement at the Second Hearing, para.  62 (citing Exhibit RUS -319).  
94 See, e.g., European Union Second Written Submission, para. 176.  
95 See, e.g., Russian Federation First Written Submission, paras. 372 -378; Russian Federation Second 
Written Submission, paras. 198 -202; Russian Federation Openi ng Statement at the Second Hearing, paras. 63 -
65. 
96 Russian Federation First Written Submission, paras. 379 -381; Russian Federation Opening Statement 
at the Second Hearing, para. 66.  
97 Russian Federation Response to Panel Question 304, paras. 199 -201. 
98 Russian Federation First Written Submission, paras. 379 -382. WT/DS475/R/Add.1  
 
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  whether there exists an objective ba sis for the Russian Federation 's questions under the 
appropriate standard of review.  This is the case with respect to the questions asked by the 
Russian Federation.99 
 
 
                                               
99 See, e.g., Russian Federation’s Comment to the Expert’s Response to the Panel’s Questions 12 -13.  
 WT/DS475/R/Add.1  
 
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  ANNEX  C 
ARGUMENTS OF THE THIRD PARTIES  
Contents  Page  
Annex  C-1 Integrated executive s ummary of the arguments of Australia  C-2 
Annex  C-2 Integrated executive summary of the arguments of Brazil  C-4 
Annex  C-3 Integrated executive summary of the arguments of India  C-8 
Annex  C-4 Integrated executive summary of the arguments of Japan  C-11 
Annex C-5 Integrated executive summary of the arguments of Norway  C-13 
Annex  C-6 Integrated executive summary of the arguments of the United States  C-17 
 
 WT/DS475/R/Add.1  
 
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  ANNEX  C-1 
INTEGRATED EXECUTIVE  SUMMARY O F THE ARGUMENTS OF A USTRALIA  
I. CONFORMANCE WITH INTERNATIONA L STANDARDS  
1. Australia notes that the Panel will need to determine, as a matter of fact, whether Russia 's 
measures conform to, or are merely based on, the OIE Terrestrial Animal Health Code. Article 3.2 
of the Sanitary and Phytosanitary Agreement (SPS A greement) provides that only measures which 
conform to international standards enjoy the presumption of consistency with the SPS Agreement.  
2. Bearing this in mind, Australia considers that it would be appropriate for the Panel to 
commence its analysis wi th the claims under Article 3, followed by consideration, if necessary, of 
the subsequent claims under Articles 5 and 6 of the SPS Agreement1.  
II. RISK ASSESSMENT  
3. It will be necessary for the Panel to consider whether the level of scientific informati on was 
insufficient to justify Russia 's provisional adoption of SPS measures in accordance with Article 5.7 
of the SPS Agreement2.  
4. In accordance with the four cumulative requirements provided by the Appellate Body in 
Japan –Agricultural Products II, for Russia to be able to rely on Article 5.7 of the SPS Agreement3 
the Panel would need to assess whether: 1)  the relevant scientific information Russia had was 
insufficient; 2) the measures adopted by Russia were on the basis of available pertinent 
informat ion; 3) whether Russia sought to obtain additional information for a more objective 
assessment of the risk; and 4) whether Russia has reviewed its measures within a reasonable 
period of time.  
5. Australia underscores that the insufficiency of evidence mus t relate to information that is 
relevant to the risk assessment in question4.  Australia also notes that the reasonable period of 
time requirement has to be established on a case -by-case basis5.   
III. REGIONALIZATION  
6. Australia considers that regionali zation is an important principle aimed at allowing the 
continuation of trade while meeting an importing Member 's appropriate level of protection.   
7. Regionalization is especially important in the case of a Member with a large territory where 
an outbreak of a disease is contained to a zone in one part of their territory. The Member may 
have implemented disease containment by, for example, movement controls on risk products, in 
addition to other methods. This Member may be able to demonstrate that the disea se has not 
spread to other parts of its territory.  For this Member the risk from the ‘disease -free' parts of the 
Member 's territory is no greater than risk prior to the disease incident occurring in the Member.      
                                               
1 This accords with the order of analysis undertaken by the Panel in India — Measures Concerning  the 
Importation of Certain Agricultural Products from the United States , WT/DS430/R and Add.1R , adopted on 19 
June 2015, paragraph 7.125.  
2 Russian Federation – Measures on the Importation of Live Pigs, Pork and Other Pig Products from the 
European Union, First Written Submission of the Russia n Federation, WT/DS475, 25 February 2015, see 
paragraph 352.  
3 Appellate Body Report, Japan – Measures Affecting Agricultural Products II , WT/DS76/AB/R, adopted 
19 March 1999, paragraph 89.  
4 Appellate Body Report, Japan – Measures Affecting Agricultural P roducts II , WT/DS76/AB/R, adopted 
19 March , paragraph 92.  
5 Ibid, paragraph 93.  WT/DS475/R/Add.1  
 
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  8. It will be necessary for the Panel to determine whether Russia 's measures, notified or 
otherwise, operate in a manner such as to deny or contradict the recognition of pest - or disease -
free areas and areas of low pest or disease prevalence under Article 6.2 of the SPS Agreement.  
Such a find ing may be informed by the Panel 's other findings under Article 3 and Article 5 of the 
SPS Agreement.  
IV. TRANSPARENCY  
9. Concerning the EU 's claim that Russia failed to observe the transparency obligations in the 
SPS Agreement, Australia notes the importa nce of compliance with the transparency obligations. It 
is important that measures are published promptly and in such a manner as to enable interested 
Members to become acquainted with them as required by Article 7 and Annex B(1), (2), (5) and 
(6).   
10. Australia further notes that one of the benefits of undertaking a public risk assessment 
process is that it provides an opportunity for all stakeholders, including trading partners, to consult 
with the importing country government and thereby understand the  basis for each country 's risk 
assessment conclusions and resulting sanitary measures, and to provide relevant information that 
may allow the continuation of trade while meeting the Member 's appropriate level of protection.  
This provides a transparent pro cess consistent with the obligation outlined in Article 7 of the SPS 
Agreement.  
 WT/DS475/R/Add.1  
 
- C-4 - 
 
  ANNEX C -2 
INTEGRATED EXECUTIVE  SUMMARY O F THE ARGUMENTS OF BRAZIL  
(i) The principle of regionalization and the determination of containment zones  
1. In the current dispute, t he European Union claims that "the Russian measures not only do not 
conform to, but fundamentally depart from, the relevant international standards ", as "the 
standards in question expressly allow trade and contain specific recommendations with regard 
to regionalization ".6 The regionalization provisions of the SPS Agreement are invoked by the 
complainant with respect to two sets of measures at issue: (i) country -wide bans (related to 
Estonia, Latvia, Lithuania and Poland); and (ii) the EU -wide ban. The EU st ates that "while the 
international standards recommend allowing trade in the products at issue from the ASF -free 
zones, Russia applies country -wide bans and does not allow imports from the ASF -free zones 
in the four EU Member States concerned and in the re st of the EU ".7 
2. On the other hand, Russia states that "where a zone or compartment has not been properly 
established in an ASF [African Swine Fever] -infected country, Chapter 15.1 of the OIE 
Terrestrial Code does not apply. In those circumstances, the i mporting country may 
legitimately and appropriately apply import restrictions to an entire country ".8  Russia argues 
that "since the European Union did not identify a compartment with high levels of biosecurity, 
the Russian Federation was under no obligati on to recognize (non -existing) compartments 
from the infected EU Member States ".9 Russia concludes that "failure to effectively establish a 
containment zone in a country that is already infected with ASF permits importing Members to 
restrict imports from t he entire country ".10 
3. In Brazil's views, the main question under discussion in this topic is whether it is possible to 
rightfully impose an import prohibition (country and/or EU -wide ban) if the importing Member 
considers that the measures adopted by the  exporting Member were not sufficient to establish 
disease - or pest -free zones or compartments.  
4. It must be recalled that Article 6.1 of the SPS Agreement provides that Members shall ensure 
that their sanitary or phytosanitary measures are adapted to th e sanitary or phytosanitary 
characteristics of the area from which the product originated and to which the product is 
destined.  To adapt the SPS measures, the following elements shall be taken into account, 
among others: (i) the level of prevalence of spec ific diseases or pests, (ii) the existence of 
eradication or control programmes, and (iii) appropriate criteria or guidelines which may be 
developed by the relevant international organizations.11 
5. Given the specific issues raised in the present dispute, B razil will focus on the third element. 
The existence of appropriate criteria or guidelines developed by relevant international 
organizations for the purpose of assisting Members in establishing containment zones within its 
territory in order to minimize th e impact on trade of the health control measures is 
undisputable. Article 4.3.3.3 of the OIE Terrestrial Code is a key standard for the 
determination of a containment zone where control measures to prevent the spread of the 
infection are applied for the pu rposes of trade. The provision establishes the conditions that 
must be met for the effective establishment of a containment zone, which would allow 
preserving the free status of the areas outside the containment zone after its reinstatement. 12 
                                               
6 Russia – Pigs (EU) (DS475) , First Written Submission of the European Union, para. 113, p. 43.  
7 Russia – Pigs (EU) (DS475) , First Written Submission of the European Union, pa ra. 6, p. 14.  
8 Russia – Pigs (EU) (DS475) , First Written Submission of the Russian Federation, para. 60, p. 24.  
9 Russia – Pigs (EU) (DS475) , First Written Submission of the Russian Federation, para. 212, p. 101.  
10 Russia – Pigs (EU) (DS475) , First Writte n Submission of the Russian Federation, para. 237, p. 109.  
11 SPS Agreement, Article 6.1.  
12 The determination of the moment in which a containment zone is established is done case -by-case 
and shall take into account the technical information provided by the  exporting Member and an objective and 
timely assessment conducted by the importing Member based on the elements of the standard.  WT/DS475/R/Add.1  
 
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  6. Brazil d oes not dispute that a Member has the right to consider that the measures adopted by 
another Member are not satisfactory for the determination of the containment zone, if (i) there 
was no conformity with the standard in the sense of Article 3.2 or (ii) the  level of protection 
sought by the importing Member is higher than the one established by the standard.  
7. If an importing Member considers that the measures adopted by the exporting Member do not 
conform to the international standard in the sense that the  measures adopted do not "embody 
the international standard completely"13, then there could be a basis for the establishment of 
an import prohibition. As it is the case elsewhere in the SPS Agreement, the presumption that 
an SPS measure adopted is in confor mity with an international standard depends on a case -
by-case analysis.  
8. On the other hand, a Member may choose to adopt a higher level of protection and decide that 
the mechanism established in conformity with Article 4.3.3.3 of the OIE Terrestrial Code  is not 
sufficient for the definition of a containment zone according to its own appropriate level of 
protection. However, if a higher level of protection than the one provided by the international 
standard is chosen by the importing Member, then the same logic of the whole SPS Agreement 
must apply. A risk assessment to provide scientific justification must be elaborated to justify 
the SPS measure.  
 (ii) The determination of the appropriate level of protection (ALOP)  
9. In the current dispute, the European Union argues that "Russia did not clearly state its ALOP" 
and that "deducing it from the domestic measures applied in the case of ASF, leads one to the 
conclusion that it is a rather low ALOP."14 On the other hand, Russia argues that "the totality 
of the ev idence demonstrate that it applies a high ALOP" both for domestic and imported 
products".15  
10. At the outset, Brazil would like to recall that Members are entitled to determine the acceptable 
level of risk within its territory. The ALOP reflects the level  of protection deemed appropriate 
by the Member to protect human, animal, or plant life or health within its territory16, and  
states the sanitary or phytosanitary objective the Member seeks to achieve.  
11. The right of a Member to define its ALOP is not "an absolute or unqualified right "17, as the 
Member's decision must comply with the relevant requirements of the SPS Agreement. In 
addition, the panel must assess on a case -by-case basis whether the importing Member clearly 
established its ALOP, or whether t he parties brought sufficient evidence for its determination. 
If, however, a Member fails to define its ALOP, or does so with insufficient precision, the ALOP 
may be established by panels "on the basis of the level of protection reflected in the SPS 
measur e actually applied."18 
12. In this dispute, both the complainant and the respondent have posited different views on how 
the level of protection adopted by the respondent should be examined, mainly with regard to 
the domestic measures adopted by Russia to co ntrol ASF within its territory.  
13. Brazil believes that  in order to address this question the Panel may focus the analysis on 
Russia's ALOP as concerns  the risks being addressed by the challenged measure  itself or on 
the broader collection of measures  (internal and at the border) adopted by Russia to address 
ASF. In either case, the decisive issue is not whether Russia's ALOP is high or low but rather 
whether the measure is applied in a discriminatory manner or constitutes a disguised 
restriction on in ternational trade.   
14. If the Panel decides that the ALOP is properly defined by reference to the SPS measure (and 
thus finds the ALOP to be high), then it should assess whether the alleged lack of 
correspondingly strict internal measures could be eviden ce of discrimination under Article 2.3 
                                               
13 EC-Hormones , Appellate Body Report, para. 170.  
14 First Written Submission of the European Union, Russia – Pigs (EU) , para. 2 55. 
15 First Written Submission of the Russian Federation, Russia – Pigs (EU) , para. 250.  
16 India – Agricultural Products , Panel Report, para. 7.553.  
17 EC – Hormones , Appellate Body Report, para. 173.  
18 Australia – Salmon , Appellate Body Report, para. 207.  WT/DS475/R/Add.1  
 
- C-6 - 
 
  of the SPS Agreement.  In this case, the higher the ALOP is established to imported goods, the 
higher it shall be also implemented to domestic products. Otherwise, Members would be able, 
based on the same appropriate level of protection, to adopt discriminatory treatment for 
domestic and imported products.  
15. Likewise, if the Panel understands that the ALOP is to be defined by reference to the overall 
risks and measures adopted to address them (and thus finds the ALO P to be low), then the 
border measure could be found to be exceedingly restrictive and thus in breach of paragraphs 
1, 2 and 3 (last sentence) of Article 2 of the SPS Agreement  
16. In sum, irrespective of how a Member defines its ALOP, this definition can not be used as a 
means to apply very stringent measures at the border and significantly more flexible control 
measures internally.   
 (iii) The requirement to complete SPS procedures without undue delay  
17. Finally, another issue Brazil would like to highl ight is the requirement in the SPS Agreement 
that SPS procedures are to be undertaken and completed without undue delay. This obligation, 
as set out in Article 8 and Annex C(1)(a) of the SPS Agreement, aims to prevent Members 
from using lengthy and unjusti fied SPS procedures as a trade barrier to other Members' 
imports.  
18. The European Union argues that Russia violated Article 8 and Annex C(1)(a) of the SPS 
Agreement because Russia failed to modify the measures in order to permit the resumption of 
imports to Russia from non -affected areas in the EU.19 Among its arguments, Russia submits 
that it "took reasonable time to assess the European Union's regionalization requests, 
especially in light of the deteriorating ASF situation on the ground in the European Un ion."20  
19. Brazil will not take a position on whether or not there has been undue delay under the 
challenged Russian approval procedures in the present case. Brazil is concerned with the 
proper interpretation to be given to the expression "without undue d elay" in a way that it 
fulfills the object and purpose of the SPS Agreement to minimize the negative effects on trade 
of SPS measures, as provided for in its preamble.  
20. In Australia – Apples, after analyzing the ordinary meaning of  the words "undue" an d "delay", 
the Appellate Body decided that Annex C(1)(a) requires Members to ensure that SPS 
procedures are undertaken and completed with "appropriate dispatch", which, in other words, 
would represent that "they do not involve periods of time that are unwa rranted, or otherwise 
excessive, disproportionate or unjustifiable".21  
21. Moreover, in EC –Biotech, the Panel interpreted that "without undue delay" could adequately 
mean "without an unjustified loss of time".22 This understanding is also reinforced by the 
expression "retard injustifié" in the French version of the SPS Agreement. Both decisions 
indicate that, although possible to happen, this delay must be reasonable and in all cases be 
justified and proportionate.  
22. Brazil is aware that there is no define d deadline in Annex C(1)(a) and that the assessment of 
"undue delay" should be made on case -by-case basis. As the Appellate Body put it in Australia 
– Apples, "[…] whether a relevant procedure has been unduly delayed is [...] not an 
assessment that can be done in the abstract"; it would require "a case -by-case analysis as to 
the reasons for the alleged failure to act with appropriate dispatch, and whether such reasons 
are justifiable".23 
23. Yet, it is important to bear in mind that, although Members are in principle allowed to take the 
time that is reasonably needed to determine with adequate confidence whether their relevant 
SPS requirements are fulfilled, they are also required to proceed with their SPS approval 
                                               
19 First Written Submission of the European Union, Russia – Pigs (EU)  (DS475), para. 337.  
20 First Written Submission of the Russian Federation, Russia – Pigs (EU)  (DS475), para. 437.  
21 Appellate Body Report, Australia – Apples, para. 437.  
22 EC – Biotech , Panel Report, para. 7.1495.  
23 Australia – Apples, Appellate Body Report, para.437.  WT/DS475/R/Add.1  
 
- C-7 - 
 
  procedures as promptly as possible. Therefor e, a Member is not allowed to freely decide when 
it will finish the undertaking and complete the approval procedures. In cases in which there is 
a delay, the Member should ensure that it is not excessive or unwarranted and its causes are 
rightfully justifi ed.24 
 
                                               
24 EC – Biotech , Panel Report, para. 7.1496.  WT/DS475/R/Add.1  
 
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  ANNEX C -3 
INTEGRATED EXECUTIVE  SUMMARY O F THE ARGUMENTS OF I NDIA* 
1. India thanks the Panel for this opportunity to present its views in the present proceedings. 
India does not take any position on the factual aspects of this dispute but limits its statement only 
to certain systemic issues concerning the Agreement on Sanitary and Phytosanitary Measures (the 
SPS Agreement) and the Understanding on Rules and Procedures Governing the Settlement of 
Disputes (the DSU).  
2. In the present dispute, the Europ ean Union (EU) has raised several claims under the SPS 
Agreement including Articles 3, 5 and 6 of the SPS Agreement.  
3. In response, the Russian Federation states that its measures conform to the international 
guidelines, in casu , the OIE Terrestrial Code (OIE Code) and therefore, its measures are consistent 
with Article 3.2 of the SPS Agreement as well as the regionaliz ation obligations under Article  6 of 
the SPS Agreement.25 
India seeks to make the following observations before the Panel for its considerat ion:  
A. Claims related to risk assessment and scientific evidence  
4.  The EU has alleged a consequential violation of Article 2.2 of the SPS Agreement by the 
Russian Federation based on the premise that the Russian Federation has violated Article  5.1 of 
the SPS Agreement by not providing any risk assessment for the measures at issue.26 The Russian 
Federation, in its submission, has claimed that its measures are in conformity with the relevant 
international standards and thus, are presumed to be consistent w ith the relevant provisions of the 
SPS Agreement which include Articles 5.1 and 2.2 of the SPS Agreement.27 
5.  In this respect, without going into the specific facts of the case, it is India 's position that a 
violation of Article 5.1 of the SPS Agreement, if established would only lead to a presumption of 
violation of Article 2.2 of the SPS Agreement which is rebuttable.28 Thus, if a defence is provided 
under Article 2.2 of the SPS Agreement to rebut this presumption, it is then incumbent upon the 
Panel to a nalyse the same. Article 2.2 is a distinct provision and is independent of Article 5.1 of the 
SPS Agreement. The risk assessment under Article 5.1 of the SPS Agreement is "a process 
characterized by systematic, disciplined and objective enquiry and analysi s, that is, a mode of 
studying and sorting out facts and opinions "29 whereas Article 2.2 directly focuses on the 
necessary link that must exist between the SPS measure and the scientific principles and 
evidence30.  Any contrary approach will lead to an incor rect interpretation of t he relationship 
between Article  2.2 and Article 5.1 as it would render Article 2.2 of the SPS Agreement 
redundant.31 
B. Claims related to harmonization  
6.  Both the parties in the dispute agree that the relevant in ternational standa rd is Chapter  15.1 
of the OIE Code. In this regard, it should be noted that reference to the standards developed by 
the OIE has been made in the preamble of the SPS Agreement,  Article 3.4 of the SPS Agreement 
as well as in Annex A (3)(b) of the SPS Agreeme nt. 
                                               
25 India requested that it s Oral Statement serve as its Integrated Executive Summary  
1 Russia FWS (‘First Written Submission’), para graph 7  
26 EU FWS, paragraph 176  
27 Russia FWS, paragraph 296  
28 Appellate Body Report, Australia -Salmon , paragraph 137  
29 Appellate Body Report, Australia -Apples , paragraph 207.  
30 Panel report, Australia -Apples , paragraph 7.214  
31 Panel Report, Australia - Apples, paragraph 7.214  WT/DS475/R/Add.1  
 
- C-9 - 
 
  7.  Moreover, Article 3.2 of the SPS Agreement provides that sanitary measures conforming to 
international standards would have the presumption of conforming to the provisions of the SPS 
Agreement which would be rebuttable. Thus, it is India 's submissi on that the OIE Code, in 
particular, Chapter 15.1 of the OIE Code forms the relevant context for interpretation of Articles 
3.1 and 3.2 of the SPS Agreement. Therefore, Chapter 15.1 of the OIE Code must be interpreted 
in light of customary rules of treaty interpretation.32 Further, interpretation is a legal function 
which can only be done by the Panel. Alternatively , the OIE Code, in particular, Chapter 15.1 of 
the OIE Code would also be considered a subsequent application of Article 3.1 and Article 3.2 of 
the SPS Agreement.33 
C. Claims related to regionalization  
8.  Both the parties have made claims and counter claims under Article 6 of the SPS 
Agreement. India submits that the Panel must undertake a  harmonious reading of Articles  6.1, 6.2 
and 6.3 of the SPS Agreement. Without going into the specific facts of the case, India would 
submit that the initial burden is upon the importing country to recognize the concept of 
regionalization pursuant to Article 6.2 of the SPS Agreement. The recognition could be implic it 
wherein the relevant municipal legislation should "not deny or contradict the recognition of the 
concepts of such areas when these concepts are relevant with respect to the disease at issue ".34 
Thus, as long a member 's measures fulfill this requirement, it would be consistent with Article  6.2 
of the SPS Agreement.  
9.  Once an importing member fulfils its obligation under Article 6.2 of the SPS Agreement, the 
burden shifts to the exporting member to provide a proposal to the importing member with respect 
to the recognition of its zones pursuant to Article 6.3 of the SPS Agreement. Article 6.3 provides 
that where exporting members claim that areas within their territories are pest - or disease -free 
areas or areas of low pest or disease prevalence they shall p rovide the necessary evidence 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.  In 
this respect, attenti on is also drawn to Chapter 5.3.1 of the OIE Code according to which the 
exporting country is required to provide all relevant information as required by the importing 
country. The purpose of providing this information is to satisfy the importing country t hat the 
animal health status will be protected as reflected in Article 5.3.3 of the OIE Code. Further, 
Chapter 4.3 and Chapter 4.4 of the OIE Code provide guidelines on zones and compartments 
which can be taken into consideration while recognizing zones an d compartments.  
10.  Thus, the Panel is required to assess whether a member has recognized the concept of 
regionalisation. After reaching an affirmative finding, the Panel would need to assess if the 
exporting member has been able to provide all the releva nt information as required by the 
importing member and whether it has been able to satisfy  the requirements under Article  6.3 of 
the SPS Agreement.  
D. Claims related to measure being more trade restrictive than required  
11.  The EU has made a claim under A rticle 5.6 of the SPS Agreement. The EU, therefore, as a 
complaining party bears the burden of proof to establish a prima facie  case that there is an 
alternative measure which meets all the three elements under Article 5.6 in order to establish a 
prima fac ie case of inconsistency with Article 5.6 of the SPS Agreement.35 
12.  In order to discharge its burden of proof of identifying the alternate measure which would 
fulfil the Appropriate Level of Protection (ALOP) of the respondent country, the complaining pa rty 
has to first identify the measure which reflects the ALOP as sought by the responding country. 
Only once the correct measure is identified, would the complaining party be able to suggest an 
alternate measure which would offer similar ALOP and thereby d ischarge its burden of proof.  
                                               
32 Panel Report, Brazil -Aircraft (Article 21.5 -Canada II),  paragraphs 5.61 -5.73 
33 Article 31(3)(a) and Article 31(3)(b) of VCLT. Also see Appellate Body Report, US-Clove Cigarettes , 
paragraphs 265 -267. Also see Appellate body Report, EC-Computer Equipment , paragraphs 90 -99 
34 Panel Report, India-Agricultural Products, paragraph 7.698  
35 Appellate Body Report, Japan -Agricultural Products II , paragraph 126; Also see Panel Report, 
Australia –Apples , paragraph 7.1104  WT/DS475/R/Add.1  
 
- C-10 - 
 
  13.  However, if the complaining party identifies an incorrect measure, the ALOP reflected in the 
incorrect measure would not be the ALOP as sought by the respondent country and in such 
circumstances, the alternate measure sug gested by the complaining party would not be able to 
fulfil the ALOP o f the respondent country.  
14.  In this respect, India submits that it is accepted jurisprudence that the ALOP has to be 
discerned from the measure at issue.36 In the present dispute, the measure at issue is the Russian 
Federation measures which prohibit the import of certain products from the EU member states.37 
Thus, any alternate measure suggested by the EU has to fulfill the ALOP reflected in these 
measures which provide for import prohi bition. However, it should be noted that the alternate 
measure suggested by the EU is based upon the domestic control measures of Russia which is not 
the measure at issue38 and which does not reflect Russian Federation 's ALOP.  
15.  If the EU 's argument was to be accepted, it would mean that the alternate measure would 
fulfil an ALOP as identified by the EU but which is not the Russian Federation 's ALOP.39 In other 
words, the EU would determine the ALOP instead of the Russian Federation determining its own 
ALOP. This would be contrary to the principle that a country has a right to determine its own 
ALOP.40 
16.  India thanks the Panel for the opportunity to present its views in this proceeding.  
 
                                               
36 Appellate Body Report, Australia -Salmon , paragraphs 190 -191, 197 and 207, where the Appellate 
Body agreed with Australia that its ALOP was reflected in the measure actually imposed on imports of fresh, 
chilled or frozen salmon, i.e. import prohibition and not heat treatment.   
37 EU FWS, paragraph 4  
38 Ibid, paragraph 255  
39 Panel Report, US-Poultry , paragraph 7.334  
40 Appellate Body Reports , Australia – Salmon , paragraph 199 (emphasis original); Also see US – 
Continued Suspension , paragraph 523  WT/DS475/R/Add.1  
 
- C-11 - 
 
   
ANNEX C -4 
INTEGRATED EXECUTIVE  SUMMARY O F THE ARGUMENTS OF JAPAN  
1. Japan would like to raise issues related to the interpretation of Articles 5.5 and 2.3 of 
the SPS Agreement.  
I. Whether distinctions in ALOPs exist under Article 5.5 of the SPS 
Agreement  
2. The EU alleges that "(i)n the absence  of a clear statement from  Russia regarding its 
ALOPs, it should be inferred from the measures that Russia applies to the domestically 
produced products associated with the risk of ASF and from the measures that R ussia 
applies with respect to the EU products at issue. "41 After consi dering the applied measures 
with respect to EU products and the internal movement of the domestic products within 
Russia respectively,42 the EU concludes "Russia 's ALOP with regard to domestic goods is 
rather low, while Russia 's ALOP with respect to the EU products at issue is very high. "43 
3.  In response, Russia argues that the ALOP is "the objective or aspirational goal "44, not 
"policy outcome ".45 According to Russia, the question of whether the ALOP is high or low 
"must be judged by examining the acceptable  level of risk expressed through the goal and 
objective of the Russian  Federation " and "[t]he fact that there may be circumstances when 
the objective was not achieved does not lower or diminish the objective itself. "46 
4. Japan would like to offer several o bservations. First, Japan agrees that the ALOP and 
the SPS measure "have to be clearly distinguished ", as "[t]he first is an objective, the 
second is an instrument chosen to attain or implement that objective "47.  
5. Second, however, contrary to what Russia  appears to posit, the ALOP is not merely 
"the objective or aspirational goal "48. Annex A(5) to the SPS Agreement defines the ALOP 
as "[t]he level of protection deemed appropriate  by the Member establishing a sanitary or 
phytosanitary measure to protect hum an, animal or plant life or health within its territory ". 
The note to Annex A(5) further clarifies that the ALOP also means the "acceptable  level of 
risk".49 The ALOP is by definition the level which is deemed appropriate and is acceptable 
and anything belo w that level is, in contrast, neither appropriate nor acceptable. It is not 
something merely to be  aspired , but the appropriate and acceptable level that must be  
achieved  by the SPS measure. Thus although it cannot be "assum[ed] that the measure 
always  achieves the appropriate level of protection determined by the Member "50, it is 
equally wrong to assume that the ALOP is merely aspirational and need not be achieved by 
the SPS measure chosen to achieve that.  
6. Third, while it is the "prerogative " of a Membe r to determine its ALOP51, "a Member is 
not free to establish its level with such vagueness  or equivocation as to render impossible 
the application of the relevant disciplines of the SPS Agreement "52. And "in cases where a 
Member does not determine its [ALOP ], or does so with insufficient precision, the [ALOP] 
                                               
41 European Union ’s First Written Submiss ion, para. 326 . 
42 Ibid., para. 328.  
43 Ibid., para. 329.  
44 Russia’s First Written Submission, para.244.  
45 Ibid., para.24 6. 
46 Ibid., para.248.  
47 Appellate Body Report,  Australia – Salmon , para.200 ; see also ibid. , para.203.  
48 Russia’s First Written Submissio n, para.244.  
49 See also Appellate Body Report, Australia – Apples , para342.  
50 Appellate Body Report,  Australia – Salmon , para.203. Emphasis added . 
51 Ibid., para.199; see also Appellate Body Report,  Australia – Apples, para.342.  
52 Appellate Body Report,  Australia – Salmon, para.206; see also Appellate Body Report,  Australia – 
Apples, para.343.  WT/DS475/R/Add.1  
 
- C-12 - 
 
  may be established by panels on the basis of the level of protection reflected in the SPS 
measure actually applied ."53 In Japan 's view, the effectiveness or ineffectiveness of the 
measure is a necessary  feature or attribute of the measure and as such cannot be a priori  
excluded from the examination of the measure. In other words, the effectiveness of the 
measure is one factor, among others, in the inquiry into "the level of protection reflected in 
the SPS  measure actually applied ".  
7. Japan notes, in this respect, that the panel in United States - Poultry  stated: "(…) even 
in a case where a Member has expressed a particular ALOP, a panel should nevertheless 
examine the measure in question to determine whet her that ALOP is the one actually being 
applied via that measure.  To ignore the measure and rely solely on a Member 's declared 
ALOP could permit a Member to evade the disciplines of Article 5.5 by simply declaring one 
generic ALOP for all SPS -related matt ers."54  Therefore, Japan considers it is for the Panel 
to assess whether it can deduce from the measures applied different ALOPs.55 
II. "Identical or Similar Conditions " under Article 2.3 of the SPS Agreement  
8. Russia argues that "different conditions prev ailed to the extent that imports from 
these infected EU Member States to the Russian Federation pose a greater risk  of 
spreading the ASF virus, particularly in the light of the lax standstill provisions mandated 
by EU legislation ".56 Russia appears to posit  that for the purpose of Article 2.3, the 
degree(s) of risk arising out of the presence of disease in Members ' specific regulatory 
circumstances are the relevant conditions within the meaning of Article 2.3.  
9. Japan notes in this respect that the panel i n India – Agricultural Products  did not 
consider the degree of risk would constitute a relevant condition. It observed that under 
Article 2.3 "the relevant ‘conditions ' may be the presence of a disease within a territory 
(and the concomitant risk associate d with that disease). "57 Turning to the specific 
situations in that dispute, the panel found that "the measures in question address the 
same condition – the presence of NAI " and, while having recognized that there may be 
difference in "the disease situation " between Members, the panel ultimately concluded that 
"the relevant condition for our analysis under the third element of Article 2.3 is the 
presence of NAI in India or another Member because that is the relevant distinction that 
triggers the import prohi bition imposed by India 's AI measures "58. Thus according to the 
panel in that dispute, the "relevant " condition is the one that "triggers " the specific 
regulatory actions under the SPS measures, i.e. the presence of a disease.  
10. Japan further  notes that,  in the context of the chapeau of GATT Article XX which uses 
an almost identical  language to the one used in Article 2.3 of the SPS Agreement, the 
Appellate Body found that arbitrary or unjustifiable discrimination  between countries where 
the same conditio ns prevail "results not only when countries in which the same conditions 
prevail are differently treated, but also when the application  of the measure at issue does 
not allow for any inquiry into the appropriateness of the regulatory program for the  
condit ions prevailing  in those export countries ".59  A differing degree of risk arising out of 
the presence of the same disease is one such regulatory condition for which the 
appropriateness of the regulatory program of an exporting Member may be inquired  into. 
Should the degree of risk be considered as a "relevant " condition for the purpose of Article 
2.3, then the situation in which the different degree of risk prevail in different Members 
would be excluded from the scope of Article 2.3 and likewise any measure that "does not 
allow for any inquiry into the appropriateness of the regulatory program for " such different 
condition prevailing in an exporting Member would be excluded from the scrutiny under 
Article 2.3.  
                                               
53 Appellate Body Report,  Australia – Salmon, para.207.  
54 Panel Report, United States - Poultry , para. 7.244.  
55 Ibid., para. 7.246.  
56 Russia’s First Written Submission, para.313. 
57 Panel Report, India – Agricultural Products , para.7.460.  
58 Ibid.,  para.7.463.  
59 Appellate Body Report, US – Shrimp , para.165.  WT/DS475/R/Add.1  
 
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  ANNEX C -5 
INTEGRATED EXECUTIVE  SUMMARY O F THE A RGUMENTS OF NORWAY  
I. ISSUES RELATED TO RI SK ASSESSMENT  
1. Where relevant scientific evidence is insufficient to perform an assessment in line with 
Article 5.1 of the SPS Agreement, a Member may provisionally adopt SPS measures according to 
the requirement s of Article 5.7. The panel in European Communities – Biotech  explained that a 
measure that is compatible with Article 5.7 will not be inconsistent with Article 5.1.60  
2. The Appellate Body has identified four cumulative requirements that must be fulfilled  for a 
Member to have recourse to Article 5.7 of the SPS Agreement: 1) the measure must be imposed in 
respect of a situation where "relevant scientific information is insufficient "; 2) it must be adopted 
"on the basis of available pertinent information "; 3) the Member must "seek to obtain the 
additional information necessary for a more objective assessment of risk "; and 4) the Member 
must "review the […] measure accordingly within a reasonable period of time ". 
 (i) Insufficient Scientific Evidence  
3. The th reshold condition for application of Article 5.7 is that the relevant scientific evidence is 
insufficient. The Appellate Body has held that the "'relevant scientific evidence ' will be ‘insufficient ' 
within the meaning of Article 5.7 if the body of availabl e scientific evidence does not allow, in 
quantitative or qualitative terms, the performance of an adequate assessment of risks as required 
under Article 5.1 and as defined in Annex A to the SPS Agreement ". 61 
4. Accordingly, the main question will be whethe r the available scientific evidence permits an 
assessment of risks within the meaning of Article 5.1, or not. The concept of risk assessment for 
the purposes of the SPS Agreement is found in Annex A, paragraph 4, which includes two 
definitions, depending o n the nature of the risk to be assessed. In the case at hand, the relevant 
definition is the one concerned with "the evaluation of the establishment or spread of a pest or 
disease within the territory of an importing Member according to the sanitary or phy tosanitary 
measures which might be applied, and of the associated potential biological or economic 
consequences ".  
5. The Appellate Body has held that a risk assessment of this type must consist of the following 
three elements:62 1) an identification of the  disease or pests whose entry, establishment or spread 
a Member wants to prevent within its territory, as well as the potential biological and economic 
consequences associated with the entry establishment or spread of these diseases or pests; 2) an 
evaluat ion of the likelihood of entry, establishment or spread of these diseases or pests, as well as 
the associate potential biological  and economic consequences; and  3) an evaluation of the 
likelihood of entry, establishment or spread of these diseases or pests  according to the SPS 
measures which might be applied.  
6. If the available scientific evidence is insufficient to undertake an assessment within these 
parameters, then the gateway to Article 5.7 is open. "Insufficient " in this regard refers both to 
situati ons where there is not enough scientific evidence (in quantitative terms) and to situations 
where there is enough evidence, but it does not give reliable results (in qualitative terms).63 
However, insufficiency of scientific evidence is not the same as "scientific uncertainty ".64 Risk 
assessments "need not necessarily inform a Member ‘unequivocally ' about risk ".65 Furthermore, 
the Appellate Body has made clear that the notion of "insufficiency " does not imply "a relationship 
                                               
60 Panel Report, EC – Biotech, para. 7.2997. In para. 7.3000 of the report, the Panel confirms that the 
initial burden of proof under Article 5.7 rests with the complainant.  
61 Appellate Body Report, Japan – Apples , para. 179.  
62 Appellate Body Report,  Australia – Salmon, para. 135 . 
63 Appellate Body Report, Japan – Apples, para. 185.  
64 Appellate Body Report, Japan – Apples, para. 184.  
65 Panel Report, European Communities – Biotech,  para. 7.3240.  WT/DS475/R/Add.1  
 
- C-14 - 
 
  between the scientific evidence and  the matters of concern to the legislator ", including the 
appropriate level of protection.66 
7. According to the Appellate Body, the "possibility of conducting further research or of 
analysing additional information, by itself, should not mean that the rele vant scientific evidence is 
or becomes insufficient ".67 The Appellate Body has also confirmed that the existence of scientific 
controversy in itself is not enough to conclude that the relevant scientific evidence is 
"insufficient ".68 
8. The determination of whether the relevant scientific evidence is "insufficient " must be made 
at time of adoption of the provisional SPS measure.69 The "insufficiency " is, however, a transitory 
state, which only last until "the imposing Member procures the additional scientific evidence which 
allows the performance of a more objective assessment of risk. "70 
(ii) The provisional measure must be adopted on the basis of available pertinent information  
9. It follows from the wording of Article 5.7 that "available pertinent information " may include 
information from "the relevant international organizations ". The Office of Epizooties (OIE) should 
be deemed a relevant organization in the case at hand.  
10. According to the Appellate Body, the "available pertinent information " must equate to "some 
evidence of a risk ", even if it is not enough to perform a proper risk assessment. In addition, there 
must be a rational relationship between the evidentiary basis and the provisional measure.71 Even 
if the rigorous standards of Article 5.1,  togeth er with Articles 5.2 and  5.3 and annex A(4), do not 
apply under Article 5.7, those standards must be considered as relevant context, and thus indicate 
what types of information may be considered as "available pertinent information ".  
(iii) Additional infor mation must be sought  
11. The third requirement under Article 5.7 sets out that the Member must "seek to obtain the 
additional information necessary for a more objective assessment of risk ". This requirement is a 
reflexion of the temporary nature of the p rovisional measures  within the meaning of Article  5.7. 
The Appellate Body has explained that "as of the adoption of the provisional measure, a WTO 
Member must make best efforts to remedy the insufficiencies in the relevant scientific evidence 
with addition al scientific research or by gathering information from relevant international 
organization and other sources ".72 Furthermore, "the information sought must be germane to 
conducting ‘a more objective assessment of the risk ', i.e. the evaluation of the likeli hood of entry, 
establishment or spread of, in casu, a pest, according to the SPS measures that might be 
applied ".73 However, a Member "is not expected to guarantee specific results […] [n]or is it 
expected to predict the actual results of its efforts to col lect additional information at the time 
when it adopts the SPS measure ".74  
(iv) Review within a reasonable period of time  
12. It is confirmed in previous disputes that an analysis of what constitutes a "reasonable period 
of time " should be conducted on a case-by-case basis, and that it will depend "upon the specific 
circumstances of each case, including the difficulty of obtaining the additional information 
necessary for the review and the characteristics of the provisional SPS measure ".   
                                               
66 Panel Report, European Communities – Biotech , para. 7.3234.  
67 Appellate Body Report, US/Canada – Continued Suspension , para.702.  
68 Appellate Body Report, US/Canada – Continued Suspe nsion , para. 677.  
69 Panel Report, European Communities – Biotech, para. 7.3253.  
70 Appellate Body Report, US/Canada – Continued Suspension , para. 679.  
71 Appellate Body Report, US/Canada – Continued Suspension , para. 678.  
72 Appellate Body Report, US/Canada – Continued Suspension , para. 679.  
73 Appellate Body Report, Japan – Agricultural Products II , para. 92.  
74 Appellate Body Report, Japan – Agricultural Products II , para. 92.  WT/DS475/R/Add.1  
 
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  III. ISSUES RELA TED TO REGIONALIZATION  
13. An assessment of a measure 's conformity with Articles 6.1 and 6.2 of the SPS Agreement 
should start with the first sentence of Article 6.2, followed by  the second sentence of Article  6.2, 
before turning to Article 6.1.75 According ly, the panel should first assess whether Russia properly 
has recognized the concepts of pest - or disease -free areas and areas of low pest or disease 
prevalence, and whether any determination of such areas is based on relevant factors. Second, the 
panel sh ould assess whether Russia has ensured that the measures at issue in this case are 
adapted to the SPS characteristics of the affected area, as set out in Article 6.1. According to the 
second sentence of this provision, it should be considered whether Russi a in its assessment of the 
SPS characteristics of a region has taken into account relevant factors, such as the level of 
prevalence of African Swine Fever, the existence of eradication and control programmes, and 
appropriate criteria or guidelines develope d by the relevant international organizations.  
14. The panel in India – Certain Agricultural Products  stated that a finding that the respondent 
party has not recognized the concepts of pest - or disease -free areas and areas of low pest or 
disease prevalence , will lead to a finding that this party has not ensured that its measures are 
adapted to the SPS characteristics of the those areas pursuant to Article 6.1, first sentence.76 
Conversely, where there is a finding that the respondent party has recognised the se concepts, a 
consideration must be undertaken, of whether this party has ensured that its measures are 
adapted to the SPS characteristics of the affected areas and whether it took into account relevant 
factors when assessing the SPS characteristics of a region, consistent with Article 6.1.77 
IV. ISSUES RELATED TO DISCRIMINATION  
A.  Article 2.3, first sentence  
15. According to previous case law, three cumulative elements are required for a violation of the 
first sentence of Article 2.3 of the SPS Agreement:  1) the measure discriminates between the 
territories of Members other than the Member imposing the measure, or between the territory of 
the Member imposing the measure and that of another Member; 2) the discrimination is arbitrary 
or unjustifiable; and 3)  identical or similar conditions prevail in the territory of the Members 
compared.78 
16. Regarding the first of these elements, the panel in India – Certain Agricultural Products  
found it "appropriate to interpret ‘discrimination ' in Article 2.3 of the SPS Agreement, in a manner 
similar to that which the Appellate Body adopted in the co ntext of Article XX of the GATT  1994".79 
In this regard, it especially noted the similarity of the language in the two provisions, and in 
addition noted that the preamble of th e SPS Agreement r efers to Article XX of the GATT  1994. It 
went on to explain that "in the context of Article 2.3 of the SPS Agreement, we consider that 
"discrimination " may result not only (i) when Members in which the same conditions prevail 
(including be tween the territory of the Member imposing the measure and that of other Members) 
are treated differently, but also (ii) where the application of the measure at issue does not allow 
for an inquiry into the appropriateness of the regulatory programme for th e conditions prevailing in 
the exporting country ".80  
17. With respect to the second element, the panel in India – Certain Agricultural Products  found 
that it would be guided, as appropriate, by the Appellate Body 's interpretation of "arbitrary or 
unjustifi ably" in the context of Article XX of the GATT 1994.81 In line with this, the panel explained 
that "the meaning of "arbitrary or unjustifiable discrimination " in the context of Article 2.3 of the 
SPS Agreement involves a consideration of the "cause " or "rationale " put forward to explain the 
                                               
75 Panel Report, India – Agricultural Products , para. 680.  
76 Panel Report, India – Agricultural Products , para. 690.  
77 Panel Report, India – Certain Agricultural Products , para. 7.691.  
78 Panel Report, Australia – Salmon (Article 21.5 – Canada) , para. 7.111.  
79 Panel Report, India – Certain Agricultural Products , para.7.400.  
80 Panel Report, India – Certain Agricultural Products , para 7.400.  
81 Panel Report, India – Certain Agricultural Products , para. 7.427.  WT/DS475/R/Add.1  
 
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  discrimination in question, and whether there is a "rational connection " between the reasons given 
for the discriminatory treatment and the objective of the measure ".82 
18. In the same dispute, the panel observed that unju stifiable discrimination may exist "when a 
measure is applied in a "rigid and unbending " manner across members without any regard for 
differences between those Members ".83 One element of the panel 's analysis was an observation 
that the respondent did not ap ply similar standards to the internal movement of products 
associated with the risk of disease as it did to imports.  
19. On the third element, the panel in India – Certain Agricultural Products  noted that the same 
facts that inform whether or not discrimi nation is arbitrary or unjustifiable may also inform 
whether identical or similar conditions prevail.84 Furthermore, and of special relevance to the 
present dispute, it stated "that the relevant ‘conditions ', for the purpose of a given analysis, may 
be the presence of a disease within a territory (and the concomitant risk associated with that 
disease) ".85 
B.  Article 2.3, second sentence  
20. In its interpretation of Article 2.3, second sentence, t he panel in India – Certain Agricultural 
Products relied, inter alia, on observations made by the Appellate Body regarding what factors 
might indicate that a Member maintains a disguised restriction on international trade within the 
context of Article 5.5 of the SPS Agreement. In particular, the panel noted that "a finding that an 
SPS measure is not based on risk assessment, including instances in which there was no risk 
assessment at all, is a strong indication that the measure "is not really concerned with the 
protection of human, animal or plant life or health but i s instead a trade restrictive measure taken 
in the guise of an SPS measure ".86 The panel also reiterated the Appellate Body 's statement that 
"where a panel has doubts regarding whether a responding Member applies similarly strict 
standards to the internal m ovement of products associated with risk within its territory as it does 
to imports of those products ", that may be another factor to be taken into account.87 In addition, 
the panel found that the interpretation of the phrase "disguised restriction on inter national trade " 
in the context of Article XX of the GATT 1994 was relevant for the interpretation of the similar 
language of Article 2.3 of the SPS Agreement.88  
                                               
82 Panel Report, India – Certain Agricultural Products , para. 7.429.  
83 Panel Report, India – Certain Agricultural Products , para. 7.432.  
84 Panel Report, India – Certain Agricultural Products , para. 7.460.  
85 Panel Report, India – Certain Agricultural Products , para. 7.460.  
86 Panel Report, India – Certain Agricultural Products , para. 7.475.  
87 Panel Report, India – Certain Agricultural Products , para. 7.475.  
88 Panel Report, India – Certain Agricultural Products , para. 7.476.  WT/DS475/R/Add.1  
 
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  ANNEX C -6 
INTEGRATED EXECUTIVE  SUMMARY O F THE ARGUMENTS OF U NITED STATES  
EXECUTIVE SUMMARY OF U.S. T HIRD PARTY ORAL SUBMISSION  
I. The provisions of Article 6 contain separate but inter -related obligations that 
must be read together in context   
1. Article 6 of the SPS Agreement sets forth inter -related obligations.  These must be read 
together in c ontext so as to result in a coherent set of obligations with regard to regionalization.   
A. While Article 6.1, first sentence imposes obligations with respect to 
measures, Article 6.2, first sentence, requires recognition of concepts  
2. Article 6.1 govern s a Member 's measures while Article 6.2 requires the recognition of 
concepts and does not express a requirement for any particular relationship between this 
recognition and a Member 's measures.  The use of different wording in these subparagraphs 
suggests that they have distinctive effects.  The obligation to ensure that SPS measures are 
"adapted " in Article 6.1, first sentence, denotes that a Member must make certain of its measures ' 
suitability for the SPS characteristics of the area.  By contrast, Articl e 6.2, first sentence, requires 
an acknowledgement of the concepts of "pest- or disease -free areas " and "areas of low pest or 
disease prevalence ". 
B. Neither the obligations in Article 6.2, first sentence, nor those in Article 
6.1, arise only following a r equest under Article 6.3 to recognize a specific 
area as a pest - or disease -free area or area of low pest or disease 
prevalence  
3. The obligation to "recognize  the concepts  of pest - or disease -free areas and areas of low 
pest or disease prevalence " in Arti cle 6.2 is independent of and antecedent to receipt of any claim 
from an exporting Member that an area within its territory is pest - or disease -free or an area of 
low pest or disease prevalence.  Indeed, there would be no basis for an exporting Member to s eek 
such recognition if the importing Member did not first recognize the concepts of pest - or disease -
free areas and areas of low pest or disease prevalence.  
4. Obligations under Article 6.1 likewise do not arise only after an exporting Member requests 
recognition of specific pest - or disease -free areas or areas of low pest or disease prevalence 
pursuant to Article 6.3.  A plain reading of Article  6.1, first sentence, makes clear that it creates a 
free-standing obligation.  No conditional language links the  obligation to Article  6.3 or to an 
extraneous event such as the request of an exporting Member to recognize an area.  Crucially, 
moreover, the phrasing of the first sentence of Article 6.1 – "ensure that their sanitary or 
phytosanitary measures are adapte d" – makes clear that it covers not only a failure to recognize 
particular disease -free areas where an exporting Member has made the necessary demonstration, 
but also adoption or maintenance of measures that would prevent the importing Member from 
accounti ng for relevant differences in the sanitary or phytosanitary characteristics of different 
areas.  
5. At the same time, the United States notes that Article 6.1 and Article 6.3 must be read 
together.  Article 6.3 recognizes that in certain circumstances only  the exporting Member would 
have the evidence necessary "to objectively demonstrate to the importing Member that . . . areas 
are, and are likely to remain, pest - or disease -free areas or areas of low pest or disease 
prevalence. "  In these circumstances, th e importing Member – without the cooperation of the 
exporting Member – would not be in a position to determine whether or not the exporting Member 
is, in whole or in part, a pest -free or disease -free area, or an area of low pest or low disease 
prevalence.  WT/DS475/R/Add.1  
 
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  II. The measures at issue do not constitute control, inspection, or approval 
procedures for purposes of Article 8 and Annex C of the SPS Agreement  
6. The European Union 's claims under Article 8 and Annex C are based on an incorrect premise.  
For those cla ims to succeed, the Russian Federation 's process for evaluating the European Union 's 
requests for regional treatment of areas within the European Union and for the ability to ship 
treated or processed pork or pig products would have to constitute a "contro l, inspection, or 
approval procedure " for purposes of Article 8 and Annex C.  Yet a Member 's process for evaluating 
such a request does not constitute such a procedure.  
7. Annex C applies to "procedures " that are for "control, inspection and approval. "  A process 
for approving regionalization (that is, the adaptation of a measure to reflect the SPS characteristics 
of portions of an exporting Member 's territory), or for approving the shipment of processed or 
treated products from areas otherwise ineligible t o ship products to an importing Member, is a 
process for modifying the substantive content of the SPS measure.  Such a process would not fall 
within the plain meaning of a "control " or "inspection " procedure.  The process would therefore fall 
within the co verage of Annex C only if it amounted to an "approval " procedure.  
8. An exporting Member 's request for regionalization of an SPS measure, however, would not 
fall within the scope of an "approval procedure " under Article 8 and Annex C.  The text of 
paragrap h 1 of Annex C shows that the "approval " procedures referred to in that annex are those 
for the approval of the marketing of a new product or product ingredient in the territory of the 
Member at issue.  Subparagraphs (a), (d), (f), and (h) refer to the "products " subject to 
procedures at issue in the annex – making clear that the approvals would not be for particular 
countries or regions of origin but for products.  Moreover, paragraphs (a), (d), and (f) envision 
that the procedures at issue are for control s, inspections, or approvals that would also be required 
of domestic products.  In this context, it would make little sense for "approval procedures " to 
encompass the process of evaluating a request for recognition of a disease -free area, or for 
permission  to ship from a particular area a product already approved and available in the 
importing Member 's market.  
9. This result is reinforced by the chapeau of paragraph 1 of Annex C, which provides that the 
requirements below apply to "procedures " to "check and  ensure the fulfillment of sanitary or 
phytosanitary measures. "  As the procedures referred to in Annex C(1) check and ensure fulfilment 
of SPS measures, such measures must exist prior to the operation, undertaking, or completion of, 
the relevant procedure s.  Here, the European Union 's contention is that Russia failed to modify the 
measures at issue in order to permit the resumption of imports to Russia of the products at issue 
from non -affected areas in the EU and/or with respect to appropriately treated o r processed 
products.  The process for modifying a measure, however, would not be a procedure to check and 
ensure fulfillment of that (unmodified) measure.  
EXECUTIVE SUMMARY OF U.S. T HIRD PARTY ORAL STATEMENT  
I. A Member that recognizes the concept of dise ase-free areas with respect to a 
disease may nonetheless breach Article 6.1 of the SPS Agreement  
10. Article 6.2 of the SPS Agreement requires the recognition of concepts :  namely, the 
concepts of pest - or disease -free areas and areas of low pest or disea se prevalence.  By contrast, 
Article 6.1 imposes obligations on Members with respect to specific measures.  One could imagine 
a scenario in which a Member has complied with Article 6.2, but not Article 6.1.  In particular, a 
Member may have recognized the concepts of pest - and disease -free areas, in accordance with 
Article 6.2.  The recognition of the concept, however, would not necessarily mean that the Member 
had complied with its obligation under Article 6.1 to ensure that any specific SPS measure was 
adapted to the sanitary or phytosanitary characteristics of the area from which the product 
originated.  
II. A Member 's compliance with Article 5.7 does not preclude a breach of Article 5.5  
11. Article 5.5 concerns a Member 's determinations of its appropriate  levels of protection 
("ALOP").  In particular, Article 5.5 states that "each Member shall avoid arbitrary or unjustifiable 
distinctions in the levels it considers to be appropriate in different situations, if such distinctions WT/DS475/R/Add.1  
 
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  result in discrimination or a disguised restriction on international trade. "  By contrast, Article 5.7 
addresses a Member 's adoption of a measure where it cannot base the measure on a risk 
assessment because relevant scientific information is insufficient, providing that in such case s, "a 
Member may provisionally adopt sanitary or phytosanitary measures on the basis of available 
pertinent information. " 
12. While the SPS Agreement, through Article 5.7, permits Members, in situations where the 
scientific evidence is insufficient, to ado pt an SPS measure on the basis of available pertinent 
information, the measure would still aim to achieve an underlying ALOP.  And, Article 5.7 does not 
contain disciplines on whether ALOPs may differ in different situations.  This separate and distinct 
issue is governed by Article 5.5.  Accordingly, while Article 5.7 could serve to excuse compliance 
with Article 5.1 of the SPS Agreement, a Member 's compliance with Article 5.7 would not decide 
the question of whether that Member 's selection of differing ALO Ps in different situations is 
consistent with obligations under Article 5.5.  
 
__________