. /.   WORLD TRADE  
ORGANIZATION  WT/DS367/13 
3 September 2010 
 (10-4561) 
 Original:   English 
  
 
AUSTRALIA – MEASURES AFFECTING THE IMPORTATION 
OF APPLES FROM NEW ZEALAND 
 
Notification of an Appeal by Australia
  
under Article 16.4 and Article 17 of the Understanding on Rules  
and Procedures Governing the Settlement of Disputes (DSU),  
and under Rule 20(1) of the Working Procedures for Appellate Review  
   The following notification, dated 31 August 2010,  from the Delegation of Australia, is being 
circulated to Members. 
 
_______________ 
 
 1. Pursuant to Article 16.4 and Article 17 of the Understanding on Rules and Procedures 
Governing the Settlement of Disputes  (DSU) and Rule 20 of the Working Procedures for Appellate 
Review , Australia hereby notifies its decision to appeal  to the Appellate Body certain issues of law 
covered in the report of the Panel entitled Australia – Measures Affecting the Importation of Apples 
from New Zealand (WT/DS367/R) (Panel Report) and certain legal interpretations developed by the 
Panel. 
 
2. Australia seeks review by the Appellate Body  of the following errors of law and legal 
interpretation contained in the Panel Report:  
(a) In ultimately finding in the Panel Report at [8.1](b) that the 16 measures at issue, both 
as a whole and individually, constitute SPS measures, the Panel erred in its 
interpretation and application of the defin ition of "sanitary or phytosanitary measure" 
in Annex A(1) to the Agreement on the Application of Sanitary and Phytosanitary 
Measures  (SPS Agreement).  The error appears at [7.113]-[7.187] of the Panel 
Report. 
(b) In ultimately finding in the Panel Report at [8.1](c) that the measures imposed by 
Australia for fire blight and apple leafcu rling midge (ALCM), as well as the general 
measures, are inconsistent with the re quirements of Arts 5.1 and 5.2 (and 
consequently Art 2.2) of the SPS Agreement,  the Panel erred in its interpretation and 
application of what constitutes a proper "risk assessment".  The errors appear at [7.240-7.472], [7.473-7.510], [7.782-7.887] and [7.898-7.906] of the Panel Report. 
(c) In ultimately finding in the Panel Report at [8.1](c) that the measures imposed by 
Australia for fire blight and ALCM, as well as the general measures, are inconsistent 
with the requirements of Arts 5.1 and 5. 2 (and consequently Art 2.2) of the SPS 
Agreement, the Panel failed in the performan ce of its duty under Art 11 of the DSU to 
make an "objective assessment of the matte r".  The errors appear at [7.240-7.472], 
[7.473-7.510], [7.782-7.887] and [7.898-7.906] of the Panel Report. WT/DS367/13 
Page 2  
 
  (d) In ultimately finding in the Panel Report at [8.1](d) that the measures imposed by 
Australia for fire blight and ALCM are inconsistent with the requirements of Art 5.6 of the SPS Agreement, the Panel relied upon its erroneous findings against the risk 
assessments for fire blight and ALCM unde r Arts 5.1 and 5.2 (and consequently 
Art 2.2) of the SPS Agreement in concludi ng that New Zealand's alternative measures 
would achieve Australia's appropr iate level of protection (ALO P).  In addition to or in 
the alternative, the Panel erred in its inte rpretation and application of Art 5.6, and 
failed to make an "objective assessment of the matter" as required by Art 11 of the DSU, in concluding that New Zealand's alternative measures would achieve Australia's ALOP.  The errors appear at [7.1133-7.1197] and [7.1286-7.1331] of the 
Panel Report. 
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