WORLD TRADE
ORGANIZATIONWT/DS76/AB/R
22 February 1999
(99-0668)
Original: English
JAPAN – MEASURES AFFECTING AGRICULTURAL PRODUCTS
AB-1998-8
Report of the Appellate BodyWT/DS76/AB/R
Page i
I. Introduc tion ................................................................................................................. ........................1
II. Arguments of th e Participants............................................................................................... ..............3
A. Claims of Error by Japan – Appellant ...............................................................................3
1. Article 2.2 of the  SPS Agreement ............................................................................3
2. Article 5.7 of the  SPS Agreement ............................................................................4
3. Article 7 and Paragraph 1 of Annex B, of the  SPS Agreement ...............................5
4. Burden of Proof........................................................................................................6
5. Article 11 of the DSU ..............................................................................................6
B. Arguments of the United States – Appellee ........................................................................7
1. Article 2.2 of the  SPS Agreement ............................................................................7
2. Article 5.7 of the  SPS Agreement ............................................................................8
3. Article 7 and Paragraph 1 of Annex B, of the  SPS Agreement ...............................9
4. Burden of Proof........................................................................................................95. Article 11 of the DSU ............................................................................................10
C. Claims of Error by the United States - Appellant .............................................................10
1. Article 5.7 of the  SPS Agreement ..........................................................................10
2. Article 5.6 of the  SPS Agreement ..........................................................................10
3. Findings on Apricots, Pears, Plums and Quince ....................................................11
4. Article 5.1 of the  SPS Agreement ..........................................................................12
5. Article 8 and Paragraph 1(c) of Annex C, of the  SPS Agreement .........................13
D. Arguments of Japan - Appellee .........................................................................................13
1. Article 5.7 of the  SPS Agreement ..........................................................................13
2. Article 5.6 of the  SPS Agreement ..........................................................................13
3. Findings on Apricots, Pears, Plums and Quince ....................................................144. Article 5.1 of the  SPS Agreement ..........................................................................14
5. Article 8 and Paragraph 1(c) of Annex C, of the  SPS Agreement .........................15
III. Arguments of the Third Par ticipan ts........................................................................................ ........ 15
A. Brazil ............................................................................................................................... .15
B. European Communities ....................................................................................................16
IV. Issues Raised in this Appeal................................................................................................ ............. 18
V. The  SPS Agreement ......................................................................................................................... 19
A. Article 2.2 .........................................................................................................................19
B. Article 5.7 .........................................................................................................................23
C. Article 5.6 .........................................................................................................................25
D. Article 7 and Paragraph 1 of Annex B ............................................................................. 28WT/DS76/AB/R
Page ii
E. Article 5.1 .........................................................................................................................29
F. Article 8 and Paragraph 1(c) of Annex C ........................................................................ 31
VI. General  Issues.............................................................................................................. ..................... 32
A. Burden of Proof................................................................................................................ 32
B. Findings on Apricots, Pears, Plums and Quince ............................................................. 36
C. Article 11 of the DSU .......................................................................................................39
VII. Findings and Conclusions ................................................................................................... ............. 40WT/DS76/AB/R
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
Japan – Measures Affecting Agricultural
Products
Japan,  Appellant/Appellee
United States,  Appellant/Appellee
Brazil and the European Communities,
Third ParticipantsAB-1998-8
Present:Beeby,  Presiding Member
Lacarte-Muró,  MemberMatsushita,  Member
I. Introduction
1. Japan and the United States appeal from certain issues of law and legal interpretations in the
Panel Report in  Japan - Measures Affecting Agricultural Products .1  The Panel dealt with a
complaint by the United States relating to the requirement imposed by Japan to test and confirm the
efficacy of the quarantine treatment for each variety of certain agricultural products ("the varietal
testing requirement").
2. Under the Plant Protection Law of 19502 and the Plant Protection Law Enforcement
Regulation3 of the same year, Japan prohibits the importation of eight agricultural products
originating from,  inter alia , the United States on the ground that they are potential hosts of codling
moth, a pest of quarantine significance to Japan.  The prohibited products are apples, cherries, peaches(including nectarines), walnuts, apricots, pears, plums and quince.  The import prohibition on theseproducts can, however, be lifted if an exporting country proposes an alternative quarantine treatmentwhich achieves a level of protection equivalent to the import prohibition.  The exporting country bears
the burden of proving that the proposed alternative treatment achieves the required level of protection.
In practice, the alternative quarantine treatment proposed is fumigation with methyl bromide, or acombination of methyl bromide fumigation and cold storage.  In 1987, Japan's Ministry ofAgriculture, Forestry and Fisheries developed two guidelines as model test procedures for theconfirmation of the efficacy of this alternative quarantine treatment:  the  Experimental Guideline for
                                                     
1WT/DS76/R, 27 October 1998.
2Law No. 151 of 1950, enacted 4 May 1950, most recently amended in 1996.
3Ordinance No. 73 of the Ministry of Agriculture, Forestry and Fisheries, enacted 30 June 1950.WT/DS76/AB/R
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Lifting Import Ban – Fumigation , which outlines the testing requirement applicable to initial lifting of
the import prohibition on a product, and the  Experimental Guide for Cultivar Comparison Test on
Insect Mortality – Fumigation  (the " Experimental Guide "), which sets out the testing requirement for
approval of additional varieties of that product.  The latter requirement is the varietal testingrequirement at issue in this dispute.
4  The United States claimed that this varietal testing requirement
was inconsistent with the obligations of Japan under the  Agreement on the Application of Sanitary
and Phytosanitary Measures  (the " SPS Agreement ").
3. The Panel Report was circulated to Members of the World Trade Organisation (the "WTO")
on 27 October 1998.  The Panel found that Japan had acted inconsistently with Articles 2.2, 5.6 and 7of the  SPS Agreement .  In paragraph 9.1 of its Report, the Panel concluded that Japan:
(i) by maintaining the varietal testing requirement in dispute with
respect to apples, cherries, nectarines and walnuts, acts
inconsistently with its obligation under Article 2.2 of theSPS Agreement not to maintain phytosanitary measures
"without sufficient scientific evidence, except as provided for
in paragraph 7 of Article 5";  and
(ii) by maintaining the varietal testing requirement in dispute with
respect to apples, cherries, nectarines and walnuts, actsinconsistently with its obligation in Article 5.6 of the
SPS Agreement to "ensure that [its phytosanitary] measures
are not more trade-restrictive than required to achieve
[Japan's] appropriate level of … phytosanitary protection,
taking into account technical and economic feasibility";  and
(iii) by not having published the varietal testing requirement in
dispute with respect to any of the products at issue, acts
inconsistently with its obligations under paragraph 1 of
Annex B of the SPS Agreement and, for that reason, with its
obligations contained in Article 7 of that Agreement.
In paragraph 9.3 of its Report, the Panel made the following recommendation:
We  recommend  that the Dispute Settlement Body request
Japan to bring its measure in dispute into conformity with itsobligations under the SPS Agreement.
4. On 24 November 1998, Japan notified the Disput e Settlement Body (the "DSB") of its
decision to appeal certain issues of law covered in the Panel Report and certain legal interpretationsdeveloped by the Panel, pursuant to paragraph 4 of Article 16 of the  Understanding on Rules and
Procedures Governing the Settlement of Disputes  (the "DSU"), and filed a notice of appeal with the
                                                     
4The relevant factual aspects of this dispute are set out in greater detail in the Panel Report in paras.
2.1–2.33, as well as in paras. 6.1-6.119 and 10.1-10.300.WT/DS76/AB/R
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Appellate Body pursuant to Rule 20 of the Wo rking Procedures for Appellate Review (the " Working
Procedures ").5  On 4 December 1998, Japan filed an appellant's submission.6  The United States also
filed an appellant's submission on 9 December 1998.7  The appellee's submissions of both participants
were filed on 21 December 1998.8  On the same day, Brazil and the European Communities filed
separate third participant's submissions.9
5. The oral hearing in the appeal was held on 19 January 1999.10  The participants and third
participants presented oral arguments and responded to questions put to them by Members of the
Appellate Body Division hearing the appeal.
II. Arguments of the Participants
A. Claims of Error by Japan  – Appellant
1. Article 2.2 of the  SPS Agreement
6. Japan argues that the Panel erred in its interpretation of the term "sufficient scientific
evidence" in Article 2.2 of the  SPS Agreement , and that, accordingly, its conclusion regarding
Article 2.2 must be reversed.  Specifically, Japan contends that the Panel erred in failing to interpretthe term "sufficient scientific evidence" in relation to the SPS measure in question, in accordance with
the rule in Article 31 of the  Vienna Convention on the Law of Treaties
11, which stipulates that a term
must be interpreted in its context.
7. It is Japan's submission that the basic rights and obligations concerning scientific evidence
provided in Article 2.2 of the  SPS Agreement  are, in principle, substantiated in Articles 5.1 and 5.2
of the  SPS Agreement .  Japan sees these Articles, therefore, as the key operative provisions
prescribing specific requirements of an SPS measure as it relates to scientific principles and scientificevidence of Article 2.2.  According to Japan, the Panel should have dealt with the issues raised in this
                                                     
5WT/DS76/5.
6Pursuant to Rule 21(1) of the Working Procedures .
7Pursuant to Rule 23(1) of the Working Procedures .
8Pursuant to Rule 22(1) and Rule 23(3) of the Working Procedures .
9Pursuant to Rule 24 of the Working Procedures .
10Pursuant to Rule 27 of the Working Procedures .
11Done at Vienna, 23 May 1969, 1155 U.N.T.S. 331; 8 International Legal Materials 679.WT/DS76/AB/R
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dispute under Articles 5.1 and 5.2 since the United States has not provided any evidence which
indicates that Japan's measure is patently inconsistent with the requirement under Article 2.2.
8. It is Japan's contention that the measure at issue is an information requirement for approval
procedures and that any challenge to an information requirement under Article 2.2 should take intoaccount the unique role of information in the SPS process, and the adequate balance that Article 8 ofthe  SPS Agreement   seeks to achieve.  According to Japan, an information requirement is justifiable
when there is some available information suggesting some risk.  The fact that a measure is an
information requirement should be considered in the discussion of sufficiency.
9. Japan notes that no language in Article 2.2 suggests that the measure has to be "based on"
sufficient scientific evidence.  Moreover, in Japan's view, the Panel eventually discarded therequirement of a rational relationship and, instead, based its finding under Article 2.2 on an "actualcausal link" between the differences in test results and the presence of varietal differences.  Not onlydoes the notion of an "actual causal link" operate as a denial of the precautionary principle, it is also aconcept that has no basis in the  SPS Agreement .
10. In Japan's view, the Panel failed to give due regard to the precautionary principle, which was
recognised in  EC Measures Concerning Meat and Meat Products (Hormones ) ("European
Communities – Hormones ")
12 and  Australia - Measures Affecting Importation of Salmon  
("Australia – Salmon ").13  Having lawfully established a prohibition on the importation of host plants
of codling moth, Japan submits that it is in a position which warrants a precautionary approach andthat Japan's varietal testing requirement, therefore, needs to be understood in the context of theprecautionary principle, a principle which is echoed by the practice of Member States and reflected inthe  Codex Alimentarius
14 and the  FAO Guidelines for Pest Risk Analysis .15
2. Article 5.7 of the  SPS Agreement
11. Japan asserts that it has fulfilled the obligation under Article 2.2 to ensure that a measure is
not maintained without sufficient scientific evidence, but that even if the Panel's contrary finding is to
be upheld, the measure maintained by Japan is, in any case, consistent with Article 5.7 of the
SPS Agreement .  Japan disagrees with the Panel's interpretation according to which Japan has to fulfil
                                                     
12Adopted 13 February 1998, WT/DS26/AB/R, WT/DS48/AB/R.
13Adopted 6 November 1998 , WT/DS18/AB/R.
14General Principles for the Use of Food Additives , Codex Alimentarius, Vol. A1, 1995.
15International Standards for Phytosanitary Measures Part I – Import Regulations, Guidelines for Pest
Risk Analysis , Food and Agriculture Organisation Secretariat, 1996.WT/DS76/AB/R
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the requirements of both the first and second senten ces of Article 5.7.  According to Japan, the phrase
"except as provided for in paragraph 7 of Article 5" in Article 2.2, should be interpreted to refer to thefirst sentence of Article 5.7, so that a Member should be allowed to claim exemption from theobligation in Article 2.2 when it fulfils the requirements of the first sentence.  Japan further assertsthat the varietal testing requirement is, in any ev ent, maintained in accordance with the requirements
of both the first and second sentences of Article 5.7.
12. With regard to the requirements of the first sentence, Japan rejects the contention of the
United States that insufficient scientific evidence within the first sentence of Article 5.7 refers to a
situation in which the amount of evidence is insufficient to perform a risk assessment.  Japan arguesthat if this contention is accepted, the concept of "sufficiency" in Article 2.2, and that in Article 5.7,must be interpreted to have different meanings, which, according to Japan, cannot be the case.
13. With regard to the requirement of the second sentence of Article 5.7, "to seek to obtain
additional information", Japan contends that this  requirement is met by accumulating information
through the experience of successful importation of varieties.  In Japan's view, the collection of datathrough experience meets the express text of the requirement.  The second sentence of Article 5.7obligates Members to "seek" to obtain the information, but does not require actual results.
14. With regard to the requirement of the second sentence, "to review" the provisional SPS
measure "within a reasonable period of time", Japan argues that reasonableness of a time-periodshould be judged according to the measure in question, and the time needed for the collection ofinformation.  The "reasonable period of time" should allow the time needed for the accumulation ofknowledge through experience.  Japan also submits that as the obligation regarding sufficientscientific evidence was first created by the  SPS Agreement , the reasonable period of time should,
therefore, start counting as of January 1995, the date when the  SPS Agreement  entered into force.
3. Article 7 and Paragraph 1 of Annex B, of the  SPS Agreement
15. Japan contends that the "regulations" referred to in the first paragraph of Annex B are limited
to legally enforceable instruments and, therefore, ex clude the guidelines for varietal testing.  Japan
notes that the footnote to the first paragraph of Annex B defining the concept of "regulation" makesreference to laws, decrees or ordinances, all of which are considered to be legally enforceable.  Japansubmits further that the precedents cited by the Panel in support of its arguments, and in particular thePanel Reports in  Japan - Trade in Semi-conductors
16 and  Japan - Measures Affecting Consumer
                                                     
16Adopted 4 May 1988, BISD 35S/116.WT/DS76/AB/R
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Photographic Film and Paper17, are inapposite since they do not concern a publication obligation as
set out in Article 7 of the  SPS Agreement .
4. Burden of Proof
16. Japan contends that the conclusion reached by the Panel under Article 5.6 of the
SPS Agreement , namely, that the determination of sorption levels is an alternative measure within the
meaning of Article 5.6, is based on a factual finding which was neither argued nor proven by the partywhich bore the burden of proof.  While the United States proposed "testing by product" as their only
alternative measure within the meaning of Article 5.6, the Panel went on to find facts that the United
States did not even allege to exist.  It is Japan's submission that this finding unjustly exempts theUnited States from discharging the burden of pr oof. According to Japan, the Panel's finding is
inconsistent with the DSU because it is contrary to the principle of burden of proof established inUnited States - Measure Affecting Imports of Woven Wool Shirts and Blouses from India  ("United
States - Shirts and Blouses ").
18
17. Japan submits that Articles 11 and 13 of the DSU should not be read to authorise panels to
establish facts neither contained in the argument of, nor proven by, the parties to the dispute.  InJapan's view, Articles 11 and 13 provide for a very conventional role of a judicial organ.  If a panel
were free to find material facts despite the absence of any argument or proof by the parties, the burden
of proof rule would be deprived of any significance.  Japan also argues that in a highly technical case,
aggressive fact-finding by a non-expert panel can easily harm an objective assessment of the facts.
18. Japan argues further that if the Panel is allowed to find facts neither argued nor proven by the
complainant, the Panel should be obligated in turn to find facts of rebuttal neither argued nor provenby the complainant.  Japan, in its written submission, contends that it was not given an opportunity toexpress its position on whether the determination of sorption levels was a reasonably availablemeasure and significantly less restrictive to trade than the current varietal testing requirementemployed by Japan.  At the oral hearing, however, Japan said that while it was able to make some
comments after having seen the Panel's interim report, it was given very limited time to make
comments on the alternative concrete suggestions.
5. Article 11 of the DSU
19. Japan argues that the Panel's finding under Article 2.2 disregarded or distorted the evidence
before it, and thus violates Article 11 of the DSU.  It is Japan's contention that there was lack of                                                     
17Adopted 22 April 1998, WT/DS44/R.
18Adopted 23 May 1997, WT/DS33/AB/R.WT/DS76/AB/R
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proper examination of evidence by the Panel, that the Panel cited the experts' opinions in an arbitrary
manner and that its evaluation of evidence was contradictory.  Japan submits that this is sufficient toreverse the findings of the Panel as it indicates lack of an objective assessment of the facts, as requiredby Article 11 of the DSU.
B. Arguments of the United States  – Appellee
1. Article 2.2 of the  SPS Agreement
20. The United States argues that the Panel correctly found that Japan's varietal testing
requirement is maintained without sufficient scientific evidence because there was no "objective and
rational relationship" between the SPS measure and the scientific evidence as required by Article 2.2of the  SPS Agreement .  The United States asserts that Japan's criticism of the Panel's finding ignores
the Appellate Body's stricture in  European Communities – Hormones
19 that Articles 2.2 and 5.1 of
the  SPS Agreement   should constantly be read together.  According to the United States, the Panel did
not err in relying on Appellate Body analysis under  Article 5.1 when interpreting the obligation not to
maintain an SPS measure without sufficient scientific evidence.  In any event, the "objective orrational relationship" standard promulgated by the Panel represents no more than a minimal relevancyrequirement.
21. With respect to the precautionary principle, the United States argues that Japan overstates the
Appellate Body's conclusions in  European Communities – Hormones
20, and notes that in that case,
the Appellate Body cautioned against using the precautionary principle as a ground for justifying SPSmeasures that are otherwise inconsistent with the obligations of Members set out in particularprovisions of the  SPS Agreement .  The United States notes that even if scientific evidence is
insufficient under Article 2.2, a Member may nevertheless adopt a provisional measure if theconditions of Article 5.7 of the  SPS Agreement   have been met.
22. The United States submits that Japan can only speculate that there may be varietal differences
which may affect treatment efficacy.  Such speculation gives rise to no more than theoretical
uncertainties, and Japan may not justify its measure on this basis.
23. With regard to the relationship between Articles 2.2 and 5.1, the United States argues that
while Article 5.1 may help to interpret Article 2.2, nothing in Article 5.1 supports Japan's conclusionthat "the direct application of Article 2.2 should be limited to situations patently inconsistent with the
                                                     
19European Communities – Hormones, supra , footnote 12.
20Ibid.WT/DS76/AB/R
Page 8
requirement of 'sufficiency' ".  The United States observes further that Article 5.1 does not itself
specify the quantum of scientific evidence required in a risk assessment.  Instead, this requirement is
found in Article 2.2.
24. The United States disagrees with Japan that its varietal testing requirement is an "information
requirement" under "approval procedures" within the meaning of paragraph 1(c) of Annex C to theSPS Agreement .  The United States contends that the varietal testing requirement does not seek to
obtain relevant information, since it is not designed to provide information relevant to the question
whether there are significant sorption differences among varieties.
2. Article 5.7 of the  SPS Agreement
25. To Japan's assertion that its varietal testing requirement is consistent with Article 5.7 of the
SPS Agreement , the United States counters that Japan's varietal testing requirement does not meet the
requirements of that provision.  The United States contends that both sentences of Article 5.7 must besatisfied to qualify for the exemption from Article 2.2 of the  SPS Agreement .  There is, therefore, no
basis, according to the United States, for Japan's claim that it may qualify for an exemption from itsobligation under Article 2.2 when it meets the requirements of the first sentence of Article 5.7 alone.The reference in Article 2.2 to Article 5.7 is not qualified or limited to only the first sentence of
Article 5.7.  The second sentence of Article 5.7 limits the ability of Members to maintain provisional
measures indefinitely.  Without this limitation, Article 2.2 would be drained of content.
26. The United States submits that the information sought and obtained by Japan was not relevant
to proving Japan's speculation that varietal sorption differences may exist.  In the opinion of theUnited States, while Article 5.7 may be silent as to specific information collection procedures, it doesspecifically require Japan to seek the information necessary for a more objective assessment of risk.The obligation to review the measure within a reasonable period of time should not be examined inisolation from the issue of whether a Member is seeking to collect additional information.  Japan hasnot sought to obtain information directly relevant  to such a review, and has thereby precluded itself
from being in a position to review the varietal testing requirement.
27. According to the United States, Japan is incorrect in claiming that the references to
sufficiency in Articles 2.2 and 5.7 must be coextensive.  The reference to sufficiency in Article 5.7relates to the sufficiency of evidence to conduct a risk assessment.  At the time the provisionalmeasure is adopted, the information necessary for an objective assessment of risk is lacking.  If therewas sufficient information to conduct a risk assessment and that assessment indicated that a measurewas not justified, a Member that was unable to adopt a measure under Article 5.1 of theWT/DS76/AB/R
Page 9
SPS Agreement  should not then be free to adopt a measure "provisionally" under Article 5.7.
Otherwise, the obligation in Article 5.1 would be rendered meaningless.
3. Article 7 and Paragraph 1 of Annex B, of the  SPS Agreement
28. The United States argues that the Panel correctly noted that the definition of sanitary and
phytosanitary regulations does not provide a requirement that such measures be legally enforceable.It is the United States' submission that Japan's app eal from the Panel's finding under Article 7 of the
SPS Agreement  rests on an unfounded and unexplained assertion that only prior panel interpretations
of Article X of the GATT are relevant to this dispute.  Furthermore, the United States asserts that the
varietal testing requirement is mandatory, and from the exporter's perspective, this is no different froma measure which is "legally enforceable".
4. Burden of Proof
29. With regard to the issue of alternative measures under Article 5.6 of the  SPS Agreement , the
United States notes that it emphasised "testing by product" in its Article 5.6 arguments because thisalternative meets the requirements of Article 5.6, and because there is no scientific evidence tosupport even limited sorption testing.  This does not change the fact that the claims and proofpresented by the United States in this case supported a  prima facie  case under Article 5.6 with
respect to sorption testing.  It is the United States' submission that the Panel did not independently
embark upon the exploration of factual areas not already addressed, either directly or indirectly, by theUnited States, nor did they consider legal arguments not specifically advanced by the United States.
30. The United States submits that Japan has not, and cannot, identify any provision in the DSU
that supports its contention that panels should be barred from either exploring the facts presented bythe parties or reaching a factual finding that is distinct from one advanced by one of the parties shouldthe factual evidence before a panel so justify.  In the opinion of the United States, Article 11 of theDSU clearly authorises panels to seek clarification of factual and legal arguments from the parties andto seek the facts necessary to permit an "objective assessment of the matter before it …".  Were this
not the case, Article 13 of the DSU would not state that "[e]ach panel shall have the right to seek
information and technical advice from any individual or body which it deems appropriate."  In theUnited States' view, therefore, Japan argues for a limitation on panel fact-finding that is not justifiedby the provisions of the DSU.
31. With respect to Japan's contention that it was not given an opportunity to express its position
concerning the alternative measure, the United States argues that Japan had more than adequateWT/DS76/AB/R
Page 10
opportunities to contest the facts found by the Panel on the basis of the statements of the experts, but
chose not to do so.
5. Article 11 of the DSU
32. The United States submits that a finding of violation of Article 11 of the DSU requires a
showing that the Panel demonstrated "deliberate disregard", "refused to consider", "wilfullydistort[ed]" or "misrepresent[ed]" the evidence before it.  According to the United States, Japan hasfailed to meet this high standard.
C. Claims of Error by the United States - Appellant
1. Article 5.7 of the  SPS Agreement
33. The United States argues that should the Appellate Body reverse the Panel's finding on
Article 5.7 of the  SPS Agreement , it should still come to the conclusion that Japan failed to meet the
requirements of Article 5.7 because:  the relevant scientific information is, in fact, sufficient;  thevarietal testing requirement has not been adopted on the basis of available pertinent information;  andthe varietal testing requirement is not "provisional".
34. It is the United States' contention that for a measure to be imposed on a provisional basis,
there must be an insufficient amount of relevant scientific evidence to be able to perform a risk
assessment.  With regard to the question of quarantine treatment efficacy, and the need for varietal
testing, the United States believes that there is a sufficient amount of evidence, so that this case doesnot present a situation where there is insufficient relevant scientific evidence within the meaning ofArticle 5.7 of the  SPS Agreement .  The United States maintains that the varietal testing requirement is
anything but provisional.  The United States asserts that while Japan's obligation to fulfill therequirements of Article 5.7 may only date from 1 January 1995, this does not change the fact that themeasure has been in place for at least 30 years.
2. Article 5.6 of the  SPS Agreement
35. The United States submits that the Panel erred in law in failing to find that "testing by
product" does not achieve Japan's appropriate level of protection.  According to the United States, the
Panel adopted a "no hypothetical risk" standard, a standard which erects an insurmountable hurdle forparties seeking to demonstrate that an alternative measure achieves a Member's appropriate level ofprotection, and a standard which was rejected by the Appellate Body in  European Communities –WT/DS76/AB/R
Page 11
Hormones.21  The United States believes, therefore, that the Appellate Body should complete the
analysis based on the correct standard and conclude that "testing by product" is an alternative measurewithin the meaning of Article 5.6 of the  SPS Agreement .
36. The United States requests that the Appellate Body modify the Panel's finding under
Article 5.6 to clarify that this finding is a finding in the alternative, applicable only if the Appellate
Body reverses the Panel's finding under Article 2.2 of the  SPS Agreement .  The United States
believes that a clarification of the relationship between the Panel's findings under Articles 2.2 and 5.6
is necessary in order to avoid confusion in the implementation process and to secure a positive
solution to the dispute.  According to the United States, the alternative measure identified by the
Panel, i.e., "determination of sorption levels", is a form of varietal testing and there is insufficientevidence to maintain any varietal testing.  The Unit ed States is concerned that the Panel's Article 5.6
finding could lead Japan to conclude that it may adopt the "determination of sorption levels" optioneven though this option is inconsistent with Article 2.2.
3. Findings on Apricots, Pears, Plums and Quince
37. With regard to apricots, pears, plums and quince, the United States argues that the Panel erred
in failing to extend its findings under Articles 2.2 and 5.6 of the  SPS Agreement  to these four
products.  According to the United States, the Panel found that the United States failed to establish a
 prima facie  case of inconsistency with Articles 2.2 and 5.6 with regard to these products, on the
basis of an absence in the record of information or  studies specifically relating to them.  However, no
such information or studies currently exist.
38. The United States submits that the Panel's finding with respect to apricots, pears, plums and
quince is based on contradictory logic and a legally incorrect interpretation of the  prima facie  case
required of the United States.  According to th e United States, the contradiction in the Panel's
reasoning is apparent on the face of its decision.  The Panel found that because there was insufficientevidence of the existence or relevance of varietal differences, it could not find that the evidence was
insufficient.  Furthermore, the United States argues that if the Panel's interpretation is to be upheld,
complaining parties would be required to prove a negative based on affirmative evidence, namely, toprove that there is no scientific evidence which supports a measure.  This interpretation places animpossible burden on complaining parties, rendering the obligation under Article 2.2 unenforceable.It also requires complaining parties to prove the absence of hypothetical risks, an approach which theAppellate Body has already rejected.
                                                     
21European Communities – Hormones, supra , footnote 12.WT/DS76/AB/R
Page 12
39. The United States argues that it met the burden of proof for all products, since it established
that Japan had failed to provide any scientific evidence to support its measure.  The Panel appears tohave required the United States to provide eviden ce for each product, thereby specifically disproving
Japan's speculation that variety is significant.
40. According to the United States, there is nothing in the Panel's analysis of Article 5.6 of
the SPS Agreement  which limits its applicability to any set of products within the Panel's terms of
reference.  The Panel, therefore, erred in limitin g the scope of its Article 5.6 finding because there
were no studies on the record specifically relating to apricots, pears, plums and quince.  The United
States submits that the absence of such studies was irrelevant to the Panel's analysis under Article 5.6.
4. Article 5.1 of the  SPS Agreement
41. It is the United States' submission that if the Appellate Body does not extend the Panel's
finding to apricots, pears, plums and quince, or if the Appellate Body reverses the Panel's findingunder Article 2.2 in response to Japan's appeal, it should complete the legal analysis under Article 5.1of the SPS Agreement  and find that the varietal testing requirement violates that provision.  The
absence of evidence should have led the Panel to find that the varietal testing requirement is not basedon a risk assessment in accordance with Article  5.1, and the Appellate Body should find so now.
42. In the view of the United States, it is not sufficient that a risk assessment conclude that there
is a  possibility  of entry.  A proper risk assessment must evaluate the  likelihood , i.e., the  probability 
of entry.  In the absence of scientific evidence relating to apricots, pears, plums and quince, anyassessment can go no further than conclude that a hypothetical possibility of such a risk exists.According to the United States, Japan's risk assessment is completely silent as to the risk at issue inthis case, namely, the risk of entry, establishment or spread of codling moth due to varietal differenceswhich may affect quarantine treatment efficacy.
43. It is the United States' submission that a risk assessment must evaluate the likelihood of entry,
establishment or spread of a pest "according to the SPS measures which might be applied".  Japan's
risk assessment should have, but did not, discuss the need for, and effectiveness of, varietal testing in
reducing risks associated with the entry, establishment or spread of codling moth.  Nor did it evaluateor compare the effectiveness of other measures such as product-based testing or integrated pest riskmanagement.  Furthermore, the United States assert s that, contrary to what Japan claims, Japan's risk
assessment was not conducted in accordance with the  FAO Guidelines for Pest Risk Analysis .WT/DS76/AB/R
Page 13
44. According to the United States, the above reasoning is applicable to all products; neither
Japan's purported risk assessment nor the fact that it fails to address risks associated with varietaldifferences relates to any specific products.
5. Article 8 and Paragraph 1(c) of Annex C, of the  SPS Agreement
45. In the event that the Appellate Body accepts Japan's argument that the varietal testing
requirement is an information requirement within the meaning of paragraph 1(c) of Annex C of theSPS Agreement , and finds it consistent with Article 2.2, the United States argues that the Appellate
Body should nevertheless find that the measure is inconsistent with Article 8 and paragraph 1(c) of
Annex C, which requires Members to limit information requirements to "what is necessary forappropriate control, inspection and approval procedures".  The United States disputes that Japan'svarietal testing requirement is consistent with this obligation as it is not limited to what is necessary.
D. Arguments of Japan - Appellee
1. Article 5.7 of the  SPS Agreement
46. With regard to Article 5.7 of the  SPS Agreement , Japan argues that none of the arguments
advanced by the United States counter any of the arguments advanced by Japan in its appellant'ssubmission.  Japan notes that while the United States attempts to define sufficiency in Article 5.7 to
mean an insufficient amount of relevant scientific evidence to be able to perform a risk assessment,
the concept of sufficiency should be interpreted to be common in both Article 2.2 and Article 5.7.Japan also notes that the Panel itself acknowledged that there is some scientific evidence to satisfy therequirement of the first sentence of Article 5.7.
2. Article 5.6 of the  SPS Agreement
47. Japan argues that the United States' claim with respect to the alternative measure is a factual
claim that is not subject to appellate review, as it deals exclusively with the evaluation of evidence bythe Panel.
48. According to Japan, the United States makes nine arguments which are mainly an attempt to
question Japan's appropriate level of protection, but fails, as a matter of factual proof, to establish a
case of inconsistency with Article 5.6 of the  SPS Agreement .  The level of protection by itself cannot
be inconsistent with the  SPS Agreement  in the absence of discrimination or a disguised restriction on
international trade.WT/DS76/AB/R
Page 14
49. Japan also disputes the United States' claim that the finding under Article 5.6 would
necessarily be alternative to the finding under Article 2.2.  According to Japan, the United Statesattempts to equate "appropriate level of protection" which the importing Member may establish with"scientific justification".  Japan submits that "sufficiency" of scientific evidence within the meaning ofArticle 2.2 must be ascertained in relation to the measure in question, which implies that the samescientific evidence may be sufficient for a certain purpose, but not for another.  According to Japan,
the finding of the Panel on Article 2.2 is limited to the varietal testing requirement as described in
paragraphs 2.23 and 2.24 of the Panel Report.  There can be other varietal measures which the Panel
would find consistent with Article 2.2.  Japan asserts, therefore, that the Panel's findings underArticle 2.2 and those under Article 5.6 are not mutually inconsistent.
3. Findings on Apricots, Pears, Plums and Quince
50. Japan submits that the claim of error by the United States in respect of apricots, pears, plums
and quince is a factual claim not subject to appellate review.  Japan states that the United States' claimcan be reduced to an argument that the absence of evidence implying presence of varietal differencein apricots, pears, plums and quince would be sufficient to establish a  prima facie  case.  As such, this
claim challenges factual evaluation of the evidence by the Panel and does not raise any legal issue.
Japan argues further that the absence of scientif ic evidence in regard to these commodities does not
constitute any basis for a  prima facie  case.  In Japan's opinion, the complaining party should and can
establish that such proof or testing is not necessary.  Being required to do so does not raise theproblem of proving the negative.  Japan argues that the case that the United States purports to make isnot a  prima facie  case, so that in the absence of an affirmative showing by the United States, Japan
should not be required to make an affirmative defence.
51. With respect to apricots, pears, plums and quince, no finding of inconsistency with Article 5.6
can be made.  Since there is no relevant data, it is impossible to find an alternative which wouldachieve Japan's appropriate level of protection.
4. Article 5.1 of the  SPS Agreement
52. Japan submits that it is fully compliant with the requirements of a risk assessment, having
evaluated the  likelihood  of entry, establishment or spread of the codling moth in Japan as described
in its  1996 Pest Risk Assessment of Codling Moth .  Japan submits that this risk assessment was
conducted in accordance with the  FAO Guidelines for Pest Risk Analysis .  According to Japan, its
risk assessment considered the likelihood of entry, establishment or spread of the pest due to possiblenon-efficacy, to the extent that relevant scientific evidence was available.WT/DS76/AB/R
Page 15
53. Japan states further that it is impossible to make any finding under Article 5.1 with regard to
apricots, pears, plums and quince because there is neither relevant data nor a treatment.
5. Article 8 and Paragraph 1(c) of Annex C, of the  SPS Agreement
54. Japan argues that it did not claim that Article 2.2 of the  SPS Agreement  would not apply to
an information requirement.  Japan's argument is that the type or characterisation of an SPS measurewill affect the question of sufficiency of scientific evidence under Article 2.2.
55. Japan also notes that the United States' claim that Japan's varietal testing requirement is in
fact unnecessary was clearly contradicted by the Panel.  According to Japan, the Panel indicated, in
relation to Article 5.6, that it was not convinced that there was sufficient evidence before it that testingby product would achieve Japan's level of protection for any of the products in issue.
III. Arguments of the Third Participants
A. Brazil
56. With regard to Article 2.2 of the  SPS Agreement , Brazil disagrees with Japan's submission
that the varietal testing requirement is an information requirement which should be found to bemaintained with sufficient scientific evidence with in the meaning of Article 2.2.  In Brazil's view, the
phrase "sufficient scientific evidence" means that there has to be sufficient evidence to support a
Member's SPS measure.  Brazil also objects to Japan's attempt to compare its varietal testingrequirement with the practices of the  Codex Alimentarius  concerning toxicological testing of any
new food additive.
57. On the issue of the requirements of Article 5.7 of the  SPS Agreement , Brazil submits that
Japan is incorrect in stating that it suffices to meet the requirements of the first sentence of Article 5.7.In Brazil's view, the Panel was correct to find that Japan did not fulfill two of the requirements underArticle 5.7 and was not, therefore, entitled to the exception provided for in that provision.
58. With regard to Article 5.6 of the  SPS Agreement , Brazil submits that the Panel erred in not
finding that the "testing by product" alternative would meet Japan's appropriate level of testing, as
scientific evidence has demonstrated that this alternative would result in the proper protection of theJapanese fruit culture from codling moth infestation.WT/DS76/AB/R
Page 16
59. With regard to Article 7 of the  SPS Agreement , Brazil agrees with the Panel that "… a non-
mandatory government measure is also subject to WTO provisions, in the event that compliance with
this measure is necessary to obtain an advantage from the government or, in other words, if sufficientincentives or disincentives exist for that measure to be abided by."
60. Brazil argues that the Panel should have concluded that the lack of evidence regarding
apricots, pears, plums and quince is in itself the proof that the measure is based on insufficientscientific evidence.  According to Brazil, the Panel's finding seems to reward an importing Member
for its lack of evidence in support of its contested measure.
B. European Communities
61. With regard to Article 2.2 of the  SPS Agreement , the European Communities submits that the
empirical evidence submitted by the United States is useful, but not sufficient, to discharge the UnitedStates' burden of persuasion nor to overturn the presumption of SPS conformity of the measure atissue.  According to the rules on burden of proof, the Panel should have ruled that the United States
has not discharged its burden of proof.
62. The European Communities submits that while the rules on burden of proof under Article 2.2
should have led the Panel to reject the United States' claims, the Panel instead devised a new legal test
that in judging the sufficiency of the scientific evidence, the Member maintaining the measure should
establish an "actual causal link" between the measure and the scientific evidence on the basis of whichit is maintained.  It is the European Communities' contention that to require an "actual causal link" iscontrary to the text, object, purpose and preparatory history of Article 2.2 of the  SPS Agreement .
Furthermore, the European Communities asserts that the "actual causal link" test is narrower in scopethan the rational relationship test adopted by the Appellate Body in  European Communities -
Hormones .
22  In the opinion of the European Communities, a systematic interpretation of Articles 2.2
and 5.1 in context does not reveal that the "sufficiency" threshold under Article 2.2 should be morerestrictive than that applied in deciding whether an SPS measure is "based on" a risk assessment.
63. According to the European Communities, since the concept of risk and risk assessment in the
SPS Agreement  is a qualitative and not a quantitative one, the word "sufficient" cannot be taken to
refer to the quantitative, but should be seen as referring to the qualitative aspects of the scientificevidence used by the regulatory authorities of a Member.
                                                     
22European Communities – Hormones, supra , footnote 12.WT/DS76/AB/R
Page 17
64. With regard to Article 5.7 of the  SPS Agreement , the European Communities argues that the
first sentence of Article 5.7 lays down the requirements that trigger the operation of Article 5.7 and,for that reason, the Panel's refusal to examine whet her the measure at issue satisfies all the conditions
of Article 5.7 is, in principle, unsatisfactory.
65. The European Communities submits that, contrary to what the United States claims, an
insufficient amount of relevant information can be established not only when the Member havingrecourse to this provision is not able to perform a risk assessment, but also when the risk assessment
shows that the relevant scientific evidence is, for example, insufficient, conflicting, inconclusive or
uncertain.  The explicit mention made of Article 5.7 in Article 2.2 implies that the conditions for theapplication of the one provision necessarily affect the application of the other.
66. The European Communities agrees with Japan that the Panel erred in finding that the
obligation "to seek to obtain the additional information" means that the necessary information must bespecific enough.  The text of Article 5.7 does not lay down any information collection procedures.
67. The European Communities considers that the Panel erred in implying that the requirement to
review the measure within a "reasonable period of time" extends also to the period of time prior to theentry into force of the  SPS Agreement , or that a period of four years in the application of a measure is
not reasonable.  According to the European Communitie s, the obligation to seek to obtain information
does not require that actual results be obtained within a specified period of time.  The reasonablenessof the period of time, as argued by Japan, should be judged according to the risk involved and thenature of the SPS measure which is required to be taken in order to achieve the Member's level ofsanitary protection.
68. With regard to Article 5.6 of the  SPS Agreement , the European Communities agrees with the
Panel that an alternative measure exists, i.e., the "determination of sorption levels", which isreasonably available, significantly less trade-restrictive and achieves Japan's level of phytosanitaryprotection.
69. With regard to Article 7 of the  SPS Agreement , the European Communities agrees with the
Panel that the varietal testing requirement imposed by Japan is a phytosanitary measure according tothe wording of Annex B of the  SPS Agreement , and consequently, must be published in order to
comply with the transparency requirement in Article 7.
70. With regard to Article 8 of the  SPS Agreement , the European Communities agrees with the
United States that the measure at issue is inconsistent with paragraph 1(c) of Annex C and withArticle 8 of the  SPS Agreement .WT/DS76/AB/R
Page 18
IV. Issues Raised in this Appeal
71. This appeal raises the following issues:
(a) whether the Panel erred in law in finding that the varietal testing requirement is
maintained without sufficient scientific evidence within the meaning of Article 2.2 ofthe  SPS Agreement ;
(b) whether the Panel erred in law in its application of Article 5.7 of the  SPS Agreement
and in finding that the requirements of the second sentence of Article 5.7 are not
fulfilled;
(c) whether the Panel erred in law by failing to find that "testing by product" achieves
Japan's appropriate level of protection as required under Article 5.6 of theSPS Agreement ;
(d) whether the Panel erred in law in making a finding under Article 5.6 of the
SPS Agreement   with regard to the "determination of sorption levels" irrespective of
whether it had found the varietal testing requirement to be inconsistent withArticle 2.2 of the  SPS Agreement ;
(e) whether the Panel correctly interpreted the scope of application of the publication
requirement of paragraph 1 of Annex B of the  SPS Agreement ;
(f) whether the varietal testing requirement is consistent with Article 5.1 of the
SPS Agreement ;
(g) whether the varietal testing requirement is consistent with Article 8 and
paragraph 1(c) of Annex C, of the  SPS Agreement ;
(h) whether the Panel's finding under Article 5.6 of the  SPS Agreement  with regard to
the "determination of sorption levels" was reached in a manner consistent with therules on burden of proof;
(i) whether the Panel erred in law by not extending its findings of inconsistency with
Articles 2.2 and 5.6 of the  SPS Agreement  to the varietal testing requirement as it
applies to apricots, pears, plums and quince;  and
(j) whether the Panel's finding on Article 2.2 of the  SPS Agreement   is inconsistent with
Article 11 of the DSU.WT/DS76/AB/R
Page 19
V. The  SPS Agreement
A. Article 2.2
72. Article 2.2 of the  SPS Agreement  stipulates in relevant part:
Members shall ensure that any sanitary and phytosanitary measure …
is not maintained without sufficient scientific evidence, except as
provided for in paragraph 7 of Article 5.
The Panel found that Japan's varietal testing requirement as it applies to apples, cherries, nectarines
and walnuts is maintained without sufficient scientific evidence and is, therefore, inconsistent withArticle 2.2 of the  SPS Agreement .
23  Japan appeals this finding.  According to Japan, the Panel erred
in law in finding that the varietal testing requir ement was "maintained without sufficient scientific
evidence" within the meaning of Article 2.2.
73. Japan's appeal raises the issue of the meaning of the phrase "maintained without sufficient
scientific evidence" in Article 2.2 and, in partic ular, the meaning of the word "sufficient".  The
ordinary meaning of "sufficient" is "of a quantity, extent, or scope adequate to a certain purpose orobject".
24  From this, we can conclude that "sufficiency" is a relational concept.  "Sufficiency"
requires the existence of a sufficient or adequate relationship between two elements,  in casu,  between
the SPS measure and the scientific evidence.
74. The context of the word "sufficient" or, more generally, the phrase "maintained without
sufficient scientific evidence" in Article 2.2, includes Article 5.1 as well as Articles 3.3 and 5.7 of theSPS Agreement .
75. Article 5.1 of the  SPS Agreement  requires that an SPS measure be based on a risk
assessment.  As we stated in our Report in  European Communities – Hormones :
… Articles 2.2 and 5.1 should constantly be read together.  Article 2.2
informs Article 5.1:  the elements that define the basic obligation set
out in Article 2.2 impart meaning to Article 5.1.
25
                                                     
23Panel Report, para. 8.43.
24C.T. Onions (ed.), The Shorter Oxford English Dictionary , Third Edition (1983), p. 2180.
25European Communities – Hormones, supra , footnote 12, para. 180.WT/DS76/AB/R
Page 20
76. In that Report, we found that:
… Article 5.1, when contextually read as it should be, in conjunction
with and as informed by Article 2.2 of the  SPS Agreement , requires
that the results of the risk assessment must sufficiently warrant -- thatis to say, reasonably support -- the SPS measure at stake.  The
requirement that an SPS measure be "based on" a risk assessment is a
substantive requirement that there be a rational relationship between
the measure and the risk assessment.
26
We agree with the Panel that this statement provides  guidance for the interpretation of the obligation
under Article 2.2 not to maintain an SPS measure without sufficient scientific evidence.27
77. We also consider it useful in interpreting Article 2.2, and, in particular, the meaning of the
word "sufficient", to recall the following statement on Article 5.1 in our Report in  European
Communities - Hormones :
Article 5.1 does not require that the risk assessment must necessarily
embody only the view of a majority of the relevant scientificcommunity. …  In most cases, responsible and representative
governments tend to base their legislative and administrative measures
on "mainstream" scientific opinion.  In other cases, equally
responsible and representative governments may act in good faith on
the basis of what, at a given time, may be a divergent opinion comingfrom qualified and respected sources.
28
78. Furthermore, in our Report in  Australia – Salmon , we stated with regard to Article 5.1:
… it is not sufficient that a risk assessment conclude that there is a
possibility  of entry, establishment or spread … .  A proper risk
assessment … must evaluate the "likelihood", i.e., the "probability", of
entry, establishment or spread … .29
We also made it clear in that Report that  some  evaluation of the likelihood is not enough.30
79. As mentioned above, the context of the phrase "not maintained without sufficient scientific
evidence" in Article 2.2 also includes Article 3.3 of the  SPS Agreement.   Pursuant to Article 3.3,
Members may introduce or maintain an SPS measure which results in a higher level of protection than
                                                     
26European Communities – Hormones, supra , footnote 12, para. 193.
27Panel Report, para. 8.29.
28European Communities – Hormones, supra , footnote 12, para. 194.
29Australia – Salmon, supra , footnote 13, para. 123.
30Australia – Salmon, supra , footnote 13, para. 124.WT/DS76/AB/R
Page 21
would be achieved by a measure based on a relevant international standard,  inter alia , "if there is a
scientific justification" and the measure is not inconsistent with any other provision of theSPS Agreement .  In  European Communities – Hormones , we stated:
… the footnote to Article 3.3 … defines "scientific justification" as an
"examination and evaluation of available scientific information in
conformity with relevant provisions of this Agreement …".
31
We also stated:
[t]his examination and evaluation would appear to partake of the
nature of the risk assessment required in Article 5.1 and defined in
paragraph 4 of Annex A of the  SPS Agreement .32
In our opinion, there is a "scientific justification" for an SPS measure, within the meaning of
Article 3.3, if there is a rational relationship between the SPS measure at issue and the availablescientific information.
80. Finally, it is clear that Article 5.7 of the  SPS Agreement, to which Article 2.2 explicitly
refers, is part of the context of the latter provision and should be considered in the interpretation of theobligation not to maintain an SPS measure without sufficient scientific evidence.  Article 5.7 allowsMembers to adopt provisional SPS measures "[i]n cases where relevant scientific evidence isinsufficient" and certain other requirements are fulfilled.
33  Article 5.7 operates as a  qualified 
exemption from the obligation under Article 2.2 not to maintain SPS measures without sufficient
scientific evidence.  An overly broad and flexible interpretation of that obligation would renderArticle 5.7 meaningless.
81. We note Japan's argument that the requirement in Article 2.2 not to maintain an SPS measure
without sufficient scientific evidence should be interpreted in light of the precautionary principle.  Inour Report in  European Communities – Hormones
34, we stated that the precautionary principle finds
reflection in the preamble, Article 3.3 and Article 5.7 of the  SPS Agreement  and that this principle:
… has not been written into the  SPS Agreement  as a ground for
justifying SPS measures that are otherwise inconsistent with theobligations of Members set out in particular provisions of that
Agreement.
                                                     
31European Communities – Hormones,  supra , footnote 12, para. 175.
32Ibid.
33See infra , para. 89.
34European Communities – Hormones, supra , footnote 12, para. 124.WT/DS76/AB/R
Page 22
82. We do not agree with Japan's proposition that direct application of Article 2.2 of the
SPS Agreement  should be limited to situations in which the scientific evidence is "patently"
insufficient, and that the issue raised in this dispute should have been dealt with under Article 5.1 ofthe  SPS Agreement .  There is nothing in the text of either Articles 2.2 or 5.1, or any other provision of
the  SPS Agreement , that requires or sanctions such limitation of the scope of Article 2.2.  On the
contrary, Article 2.2 sets out, as the title of Article 2 indicates, "Basic Rights and Obligations".  In ourReport in  European Communities – Hormones , we agreed with a statement by the panel in that case
that Article 5.1 may be viewed as a specific application of the  basic   obligations contained in
Article 2.2.
35  This statement can not possibly be interpreted as support for limiting the scope of
Article 2.2 "in favour" of Article 5.1.  Furthermore, we note that we said the following in our Reportin  European Communities – Hormones :
We are, of course, surprised by the fact that the Panel did not begin its
analysis of this whole case by focusing on Article 2 that is captioned
"Basic Rights and Obligations", an approach that appears logicallyattractive.
36
83. We also do not agree with Japan's contention that the Panel "in the end" applied a standard
different from its "rational relationship" standard, i.e., the "actual causal link" standard.  Weunderstand the Panel to refer, in paragraph 8.42 of its Report, to the absence of an actual causal linkbetween test differences in CxT and LD
50 values and varietal differences as an illustration or a strong
indication of the absence of a rational relationship between the SPS measure and the scientificevidence.
84. In the light of the above considerations based on the text and context of Article 2.2 of the
SPS Agreement , we agree with the Panel that the obligation in Article 2.2 that an SPS measure not be
maintained without sufficient scientific evidence requires that there be a rational or objective
relationship between the SPS measure and the scientific evidence.
37  Whether there is a rational
relationship between an SPS measure and the scientific evidence is to be determined on a case-by-case basis and will depend upon the particular circumstances of the case, including the characteristicsof the measure at issue and the quality and quantity of the scientific evidence.
85. We, therefore, reject Japan's appeal on this issue and uphold the Panel's finding in
paragraph 8.43 of the Panel Report that the varietal testing requirement as it applies to apples,
                                                     
35European Communities – Hormones, supra , footnote 12, para. 180.
36European Communities – Hormones, supra , footnote 12, para. 250.
37Panel Report, paras. 8.29 and 8.42.WT/DS76/AB/R
Page 23
cherries, nectarines and walnuts is maintained wi thout sufficient scientific evidence within the
meaning of Article 2.2 of the SPS Agreement .
B. Article  5.7
86. As already discussed above, Article 2.2 of the  SPS Agreement  stipulates that Members shall
not maintain SPS measures without sufficient scientific evidence "except as provided for inparagraph 7 of Article 5."  In support of its varietal testing requirement, Japan invoked Article 5.7before the Panel.
Article 5.7 of the  SPS Agreement  reads as follows:
In cases where relevant scientific evidence is insufficient, a Member
may provisionally adopt sanitary or phytosanitary measures on the basis
of available pertinent informati on, including that from the relevant
international organizations as well as from sanitary or phytosanitary
measures applied by other Members.  In such circumstances, Members
shall seek to obtain the additional information necessary for a moreobjective assessment of risk and revi ew the sanitary or phytosanitary
measure accordingly within a reasonable period of time.
87. The Panel found that Japan had not fulfilled the requirements contained in the second
sentence of Article 5.7.  It did not examine whet her Japan's varietal testing requirement met the
requirements of the first sentence of Article 5.7.  In this connection, the Panel stated:
… we thus find that even if the varietal testing requirement were
considered as a provisional measure adopted in accordance with the firstsentence of Article 5.7, Japan has not fulfilled the requirements
contained in the second sentence of Article 5.7.
38
88. Japan appeals the Panel's finding under Article 5.7.  According to Japan, the Panel erred in its
application of Article 5.7 and in its finding that the requirements of the second sentence of Article 5.7were not fulfilled.
89. Article 5.7 of the  SPS Agreement  sets out four requirements which must be met in order to
adopt and maintain a provisional SPS measure.  Pursuant to the first sentence of Article 5.7, aMember may provisionally adopt an SPS measure if this measure is:
(1) imposed in respect of a situation where "relevant scientific information is
insufficient";  and
(2) adopted "on the basis of available pertinent information".
                                                     
38Panel Report, para. 8.59.WT/DS76/AB/R
Page 24
Pursuant to the second sentence of Article 5.7, such a provisional measure may not be maintained
unless the Member which adopted the measure:
(1) "seek[s] to obtain the additional info rmation necessary for a more objective
assessment of risk";  and
(2) "review[s] the … measure accordingly within a reasonable period of time".
These four requirements are clearly cumulative in nature and are equally important for the purpose of
determining consistency with this provision.  Whenever  one  of these four requirements is not met,
the measure at issue is inconsistent with Article 5.7.
90. Japan's proposition that the wording "except as provided for in paragraph 7 of Article 5" in
Article 2.2 refers only to the first sentence of Ar ticle 5.7, and that a Member should, therefore, be
allowed to claim exemption from the obligation under Article 2.2 when it fulfils the requirements of
the first sentence, is without basis in the text of either Article 2.2 or Article 5.7.  On the contrary,
Article 2.2 refers to Article 5.7 as a whole and Article 5.7 links the first and second sentence with thewords "[i]n  such circumstances" (emphasis added).
91. We, therefore, conclude that the Panel did not err in its application of Article 5.7 by first
examining whether the varietal testing requirement meets the requirements of the second sentence ofArticle 5.7.  Having established that the requirements of the second sentence of Article 5.7 are notmet, there was no need for the Panel to examine the requirements of the first sentence.
39
92. As to the question whether the Panel erred in finding that Japan has not acted consistently
with the requirements of the second sentence of Article 5.7, we note that the first part of the second
sentence stipulates that the Member adopting a provisional SPS measure "shall seek to obtain the
additional information necessary for a more objective assessment of  risk".  Neither Article 5.7 norany other provision of the  SPS Agreement   sets out explicit prerequisites regarding the additional
information to be collected or a specific collection procedure.  Furthermore, Article 5.7 does notspecify what actual results must be achieved; the obligation is to "seek to obtain" additionalinformation.  However, Article 5.7 states that the additional information is to be sought in order toallow the Member to conduct "a more objective as sessment of risk".  Therefore, the information
                                                     
39In  European Communities - Measures Affecting the Importation of Certain Poultry Products ,
adopted 23 July 1998, WT/DS69/AB/R, para. 135, we stated that "[j]ust as a panel has the discretion to addressonly those  claims   which must be addressed in order to dispose of the matter at issue in a dispute, so too does a
panel have the discretion to address only those  arguments   it deems necessary to resolve a particular claim.  So
long as it is clear in a panel report that a panel has r easonably considered a claim, the fact that a particular
argument relating to that claim is not specifically addressed in the 'Findings' section of a panel report will not, inand of itself, lead to the conclusion that that panel has failed to make the 'objective assessment of the matterbefore it' required by Article 11 of the DSU."WT/DS76/AB/R
Page 25
sought must be germane to conducting such a risk assessment, i.e., the evaluation of the likelihood of
entry, establishment or spread of,  in casu , a pest, according to the SPS measures which might be
applied.  We note that the Panel found that the information collected by Japan does not "examine theappropriateness" of the SPS measure at issue and does not address the core issue as to whether
"varietal characteristics cause a divergency in quarantine efficacy".
40  In the light of this finding, we
agree with the Panel that Japan did not seek to obtain the additional information necessary for a moreobjective risk assessment.
93. The second part of the second sentence of Article 5.7 stipulates that the Member adopting a
provisional SPS measure shall "review the … measure accordingly within a reasonable period oftime."  In our view, what constitutes a "reasonable period of time" has to be established on a case-by-case basis and depends on the specific circumstances of each case, including the difficulty ofobtaining the additional information necessary for the review  and  the characteristics of the
provisional SPS measure.  In the present case, the Panel found that collecting the necessary additionalinformation would be relatively easy.
41  Although the obligation "to review" the varietal testing
requirement has only been in existence since 1 January 1995, we agree with the Panel that Japan hasnot reviewed its varietal testing requirement "within a reasonable period of time".
42
94. We, therefore, uphold the Panel's finding that even if the varietal testing requirement were
considered to be a provisional measure adopted in accordance with the first sentence of Article 5.7,Japan has not fulfilled the requirements contained in the second sentence of Article 5.7.
C. Article  5.6
95. Article 5.6 of the  SPS Agreement  prohibits SPS measures that are more trade-restrictive than
required to achieve a Member's appropriate level of protection.  According to the footnote toArticle 5.6, a measure is considered more trade-restrictive than required if there is another SPSmeasure which:
(1) is reasonably available taking into account technical and economic feasibility;
(2) achieves the Member's appropriate level of protection;  and(3) is significantly less restrictive to trade than the SPS measure contested.
43
                                                     
40Panel Report, para. 8.56.
41Ibid.
42Panel Report, para. 8.58.
43Australia – Salmon , supra , footnote 13, para. 194.WT/DS76/AB/R
Page 26
As we have stated in our Report in  Australia – Salmon , these three elements are cumulative in
nature.44
96. The United States argued before the Panel that the "testing by product" of the efficacy of the
quarantine treatment is such an alternative measure within the meaning of Article 5.6.  The Panelagreed with the United States that "testing by product" is a measure which is reasonably available,taking into account technical and economic feasibility.
45  It also agreed that "testing by product" is
significantly less restrictive to trade than the varietal testing requirement.46   On the remaining element
under Article 5.6, the Panel concluded, however, that:
… after having carefully examined all the evidence before us in light
of the opinions we received from the experts advising the Panel, we
are not convinced that there is sufficient evidence before us to find
that testing by product would achieve Japan's appropriate level of
protection for any of the products at issue.47
97. The United States appeals this finding.  Accord ing to the United States, the Panel erred in law
by failing to find that "testing by product" achieves Japan's appropriate level of protection.  TheUnited States asserts that in concluding that the statement by Dr. Ducom, one of the experts advisingthe Panel
48, is sufficient to preclude a finding that "testing by product" achieves Japan's appropriate
level of protection, the Panel effectively adopted a "no hypothetical risk" standard.49  According to the
                                                     
44Australia – Salmon , supra , footnote 13, para. 194.
45Panel Report, para. 8.78.
46Panel Report, para. 8.79.
47Panel Report, para. 8.84.
48Paragraph 8.83 of the Panel Report reads in relevant part as follows:
However, at least one of the experts advising the Panel made equally clear
that the US alternative of one treatment for all varieties, including those to bedeveloped in the future, does not, to date, have a scientific basis either.  In hisanswer to Panel question 16, Dr. Ducom states:
"The arguments put forth by Japan for requiring varietal trials arenot based on scientific data. They are supported by a few
experimental data in which varietal difference exists, in terms of
LD
50, among a lot of other data in which it does not …
The arguments put forth by the USA are based on a large number of
experiments, of which Japan has thoroughly made use.
Varietal difference appears several times, but each time, the
confirmatory test has revealed sufficient efficacy. Extrapolation to
all available varieties is no more scientific than the Japanese's
contrary assertion.  This sort of extrapolation is something along the
order of intuition.  It is unfortunate that there has not been a research
program on the subject in order to try to present some scientific
proof".
49Appellant's Submission of the United States, para. 38.WT/DS76/AB/R
Page 27
United States, we rejected such a standard in our Report in  European Communities – Hormones .
Furthermore, the United States contends that a "no hypothetical risk" standard erects aninsurmountable hurdle for parties seeking to demonstrate that an alternative measure achieves aMember's appropriate level of protection.
50
98. Contrary to what the United States asserts, the Panel did not base its conclusion with regard to
"testing by product" under Article 5.6 exclusively on Dr. Ducom's statement.  The Panel explicitlystated, in paragraph 8.84 of the Panel Report
51, that it carefully examined  all  the evidence before it in
light of the opinions received from its experts and that it subsequently came to the conclusion that it
was not convinced that there was sufficient evidence to find that "testing by product" would achieveJapan's appropriate level of protection.  It appears to us that the United States' appeal in essencechallenges the Panel's consideration and weighing of the evidence before it.  As we stated in ourReport in  Australia – Salmon , a panel's consideration and weighing of the evidence before it relates
to its assessment of the facts and, therefore, falls outside the scope of appellate review underArticle 17.6 of the DSU.
52
99. Furthermore, we fail to understand how the Panel would have "effectively" adopted a "no
hypothetical risk" standard by concluding that Dr. Ducom's statement53 is sufficient to preclude a
finding that "testing by product" does not achieve Japan's appropriate level of protection.
100. We, therefore, reject the United States' appeal from the Panel's finding under Article 5.6 with
regard to "testing by product".
101. Apart from appealing the Panel's finding under Article 5.6 with regard to "testing by product",
the United States also requests a modification of the Panel's finding under Article 5.6 with regard tothe "determination of sorption levels" in order to clarif y that this finding is a finding in the alternative,
relevant only if the Appellate Body were to reverse the Panel's finding under Article 2.2.  Inparagraph 131 of this Report, however, we reverse the Panel's finding under Article 5.6 with regard tothe "determination of sorption levels".  We, therefor e, see no further need to address the alternative
argument raised here by the United States concer ning the relationship between the Panel's finding of
inconsistency under Article 2.2 and its finding of inconsistency under Article 5.6.
                                                     
50Appellant's Submission of the United States, para. 39.
51See supra , para. 96.
52Australia – Salmon, supra , footnote 13, para. 261.
53See supra , footnote 48.WT/DS76/AB/R
Page 28
D. Article 7 and Paragraph 1 of Annex B
102. Article 7 of the  SPS Agreement,  that is captioned "Transparency", reads:
Members shall notify changes in their sanitary or phytosanitary
measures and shall provide information on their sanitary or
phytosanitary measures in accordance with the provisions of Annex B.
Paragraph 1 of Annex B of the  SPS Agreement   stipulates:
Members shall ensure that all sanitary and phytosanitary regulations
which have been adopted are published promptly in such a manner as toenable interested Members to become acquainted with them.
In a footnote to this paragraph, the sanitary and phytosanitary  regulations  to which this publication
requirement applies are defined as:
Sanitary and phytosanitary measures such as laws, decrees or
ordinances which are applicable generally.
103. In paragraph 8.111 of the Panel Report, the Panel found:
Even though the varietal testing requirement is not mandatory – in that
exporting countries can demonstrate quarantine efficiency by other
means – in our view, it does constitute a "phytosanitary regulation"
subject to the publication requirement in Annex B.
In paragraph 8.116 of the Panel Report, the Panel subsequently concluded that:
… Japan, by not having published the varietal testing requirement,
acts inconsistently with its obligations under paragraph 1 of Annex B
of the SPS Agreement and, for that reason, with its obligations
contained in Article 7 of that Agreement.
104. Japan appeals this finding.  According to Japan, the "regulations" referred to in paragraph 1 of
Annex B are limited to legally enforceable instruments.  Japan contends that the varietal testingrequirement, as set out in the   Experimental Guide
54, is not a legally enforceable instrument and does,
therefore, not fall within the scope of application of the publication requirement of paragraph 1 ofAnnex B.
105. We consider that the list of instruments contained in the footnote to paragraph 1 of Annex B
is, as is indicated by the words "such as", not exhaustive in nature.  The scope of application of the
                                                     
54See supra , para. 2.WT/DS76/AB/R
Page 29
publication requirement is not limited to "laws, decrees or ordinances", but also includes, in our
opinion, other instruments which are applicable generally and are similar in character to theinstruments explicitly referred to in the illustrative list of the footnote to paragraph 1 of Annex B.
106. The object and purpose of paragraph 1 of Annex B is "to enable interested Members to
become acquainted with" the sanitary and phytosanitary regulations adopted or maintained by otherMembers and thus to enhance transparency regarding these measures.  In our opinion, the scope ofapplication of the publication requirement of paragraph 1 of Annex B should be interpreted in the
light of the object and purpose of this provision.
107. We note that it is undisputed that the varietal testing requirement is applicable generally.
Furthermore, we consider in the light of the actual impact of the varietal testing requirement onexporting countries, as discussed by the Panel in paragraphs 8.112 and 8.113 of the Panel Report, thatthis instrument is of a character similar to laws, decrees and ordinances, the instruments explicitlyreferred to in the footnote to paragraph 1 of Annex B.
108. For these reasons, we agree with the Panel that the varietal testing requirement, as set out in
the  Experimental Guide  , is a phytosanitary regulation within the meaning of paragraph 1 of
Annex B, and, therefore, uphold the Panel's finding  that Japan has acted inconsistently with this
provision and with Article 7 of the  SPS Agreement .
E. Article  5.1
109. The Panel made no finding on the consistency of Japan's varietal testing requirement with
Article 5.1 of the  SPS Agreement.  In paragraph 8.63 of the Panel Report, the Panel stated:
Since we have found earlier that the varietal testing requirement
violates Article 2.2, we see no need to further examine whether it also
needs to be based on a risk assessment in accordance with Articles 5.1and 5.2 nor to determine whether in this dispute it is so based.
110. In its Appellant's Submission, the United States calls upon us to "complete the Article 5.1
analysis and find that the varietal testing requirement violates that provision", in the event that we donot extend the Panel's finding under Article 2.2 to apricots, pears, plums and quince,  or  in the event
that we reverse the Panel's finding that the varietal testing requirement as it applies to apples, cherries,
nectarines and walnuts is inconsistent with Article 2.2.
55
                                                     
55Appellant's Submission of the United States, para. 62.WT/DS76/AB/R
Page 30
111. We note that there is an error of logic in the Panel's finding in paragraph 8.63.  The Panel
stated that it had found earlier in its Report that the varietal testing requirement violates Article 2.2,and that there was, therefore, no need to examine whether the measure at issue was based on a riskassessment in accordance with Articles 5.1 and 5.2 of the  SPS Agreement .  We note, however, that
the Panel's finding of inconsistency with Article 2.2 only concerned the varietal testing requirement asit applies to apples, cherries, nectarines and walnuts.
56  With regard to the varietal testing requirement
as it applies to apricots, pears, plums and quince, the Panel found that there was insufficient evidence
before it to conclude that this measure was inconsistent with Article 2.2.  The Panel, therefore, made
an error of logic when it stated, in general term s, that there was no need to examine whether the
varietal testing requirement was consistent with Article 5.1 because this requirement had already beenfound to be inconsistent with Article 2.2.  With regard to the varietal testing requirement as it appliesto apricots, pears, plums and quince, there was clearly still a need to examine whether this measurewas inconsistent with Article 5.1.  By not making a finding under Article 5.1 with regard to thevarietal testing requirement as it applies to apricots, pears, plums and quince, the Panel improperlyapplied the principle of judicial economy.
57  We believe that a finding under Article 5.1 with respect
to apricots, pears, plums and quince is necessary "in order to ensure effective resolution" of the
dispute.58
112. We consider it appropriate for us to complete the legal analysis and examine whether the
varietal testing requirement as it applies to apricots, pears, plums and quince is consistent withArticle 5.1.  As already noted above, Article 5.1 re quires that an SPS measure be based on a risk
assessment.
59  In our Report in  Australia – Salmon , we stated with regard to the type of risk
assessment required in this case:
… a risk assessment within the meaning of Article 5.1 must:
(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 biologicaland economic consequences;  and
                                                     
56Panel Report, para. 8.43.
57We note that the Panel, in paragraph 8.6 of its Report, stated that in light of its terms of reference it
was called upon "to examine the [varietal testing requir ement] as it applies to all products covered by the
contested measure", i.e., apples, cherries, peaches (including nectarines), walnuts, apricots , pears , plums  and
quince .
58Australia – Salmon , supra , footnote 13, para. 223.
59See supra , paras. 75-78.WT/DS76/AB/R
Page 31
(3) evaluate the likelihood of entry, establishment or spread of
these diseases  according to the SPS measures which might be
applied.60
113. Japan argued before the  Panel that its varietal testing requirement is based on the  1996 Pest
Risk Assessment of Codling Moth  (the " 1996 Risk Assessment ").61  We note, however, that the  1996
Risk Assessment  does not discuss or even refer to the varietal testing requirement or to any other
phytosanitary measure that might be taken to reduce the risk.  The  1996 Risk Assessment  does not,
therefore, "evaluate the likelihood of the entry, establishment or spread" of codling moth "according
to the SPS measures which might be applied" within the meaning of Article 5.1.
114. We, therefore, conclude that the varietal testing requirement as it applies to apricots, pears,
plums and quince is inconsistent with Article 5.1 of the  SPS Agreement .
F. Article 8 and Paragraph 1(c) of Annex C
115. In paragraph 8.117 of the Panel Report, the Panel stated:
Given that we have found earlier that the varietal testing requirement
is inconsistent with the requirements of Articles 2.2, 5.6 and 7 of the
SPS Agreement, we see no need to further examine whether it is also
inconsistent with Article 8, referring to Annex C, of that Agreement.
116. In the event that we accept Japan’s argument that the varietal testing requirement is an
information requirement within the meaning of paragraph 1(c) of Annex C, and that Japan’s measureis, therefore, consistent with Article 2.2, the United States requests that we find the varietal testingrequirement inconsistent with Article 8 and paragraph 1(c) of Annex C, of the  SPS Agreement .
62
117. We note that the United States does not appeal the Panel's failure to make a finding under
Article 8 and Annex C of the  SPS Agreement .  It does not challenge the Panel's application of the
principle of judicial economy.  The United States merely submits to us arguments concerning theconsistency of Japan's varietal testing requirement with Article 8 and paragraph 1(c) of Annex C for
our consideration should we come the conclusion that the varietal testing requirement is an
information requirement, and, therefore, is consistent with Article 2.2.  We have not come to this
                                                     
60Australia – Salmon, supra , footnote 13, para. 121.
61Panel Report, para. 4.145 and following.
62Appellant's Submission of the United States, para. 83.WT/DS76/AB/R
Page 32
conclusion63 and we, therefore, do not consider it necessary to address the arguments on Article 8 and
paragraph 1(c) of Annex C, submitted by the United States.
VI. General Issues
A. Burden of Proof
118. In paragraph 8.103 of the Panel Report , the Panel found:
… -  on the basis of the evidence before the Panel and the opinions of
the experts advising the Panel  -  it can be presumed that an alternative
measure exists (i.e., [the "determination of sorption levels"]) which
would meet all of the elements under Article 5.6.
119. In its reasoning, the Panel explicitly stated that the complaining party, the United States, had
"not specifically addressed" the question whether the "determination of sorption levels" is analternative measure within the meaning of Article 5.6 of the  SPS Agreement .
64  With regard to the
first and third elements under Article 5.6, name ly, the economic and tech nical feasibility of the
alternative measure, and the question whether the alternative measure is significantly less trade-
restrictive than the SPS measure at issue, the Panel noted, however, that the United States "has given
views which are consistent with" the idea that the "determination of sorption levels" meets these twoelements.
65  With regard to the second element under Article 5.6, namely, the question whether the
alternative measure meets the Member's appropriate level of protection, the Panel stated that "theUnited States … suggests that [the "determination of sorption levels"]  would  meet Japan's
appropriate level of protection".
66  The Panel noted that the United States submitted that "testing by
product" would meet Japan's level of protection and that, since the determination of sorption levels "ismore stringent than testing by product, it can thus be presumed that the US view on this alternative
would be that it  a fortiori  meets Japan's level of protection".
67
                                                     
63See supra , para. 85.
64Panel Report, footnotes 328, 332 and 333.
65Panel Report, paras. 8.91 and 8.95.  The Panel noted, in footnotes 328 and 332, that it had considered
all the other arguments of the United States and that none of these arguments went against the idea that the
determination of sorption levels would be technically and economically feasible and would be significantly less
trade-restrictive than the varietal testing requirement.
66Panel Report, para. 8.98.
67Panel Report, footnote 333.WT/DS76/AB/R
Page 33
120. Japan appeals the Panel's finding under Article 5.6 regarding the "determination of sorption
levels", on the basis that it is contrary to the rules on burden of proof, as established by the AppellateBody in  United States – Shirts and Blouses .
68  In Japan's view, panels cannot find facts neither argued
nor proven by the parties.69  Japan asserts that the Panel "exempts quite unjustly the United States
from discharging the distributed burden of proof".70
121. With regard to the rules on burden of proof, we stated in our Report in  United States – Shirts
and Blouses :
… various international tribunals, including the International Court of
Justice, have generally and consistently accepted and applied the rule
that the party who asserts a fact, wh ether the claimant or the respondent,
is responsible for providing proof thereof. Also, it is a generally-accepted canon of evidence in civil law, common law and, in fact, most
jurisdictions, that the burden of proof rests upon the party, whether
complaining or defending, who asserts the affirmative of a particular
claim or defence.  If that party adduces evidence sufficient to raise a
presumption that what is claimed is true, the burden then shifts to theother party, who will fail unless it adduces sufficient evidence to rebut
the presumption.
71
122. With regard to the rules on burden of proof in proceedings under the  SPS Agreement , we
noted in our Report in  European Communities – Hormones , that the panel in that case appropriately
described the issue of the burden of proof as one of particular importance, in view of the multiple andcomplex issues of fact which may arise in disputes under that Agreement.
72  Furthermore, as we noted
in  European Communities – Hormones , the rules on burden of proof are rules "applicable in any
adversarial proceedings".73  We, therefore, agreed with the panel in that case that in proceedings under
the  SPS Agreement :
The initial burden lies on the compla ining party, which must establish
a  prima facie  case of inconsistency with a particular provision of the
SPS Agreement  on the part of the defending party, or more precisely,
of its SPS measure or measures complained about.  When that  prima
facie  case is made, the burden of proof moves to the defending party,
which must in turn counter or refute the claimed inconsistency.74
                                                     
68Appellant's Submission of Japan, para. 91
69Appellant's Submission of Japan, para. 90.
70Ibid.
71United States – Shirts and Blouses, supra , footnote 18, p. 14.
72European Communities – Hormones, supra , footnote 12, para. 97.
73European Communities – Hormones, supra , footnote 12, para. 98.
74Ibid.WT/DS76/AB/R
Page 34
123. In this dispute, the United States claimed that the varietal testing requirement is more trade-
restrictive than required to achieve Japan's appropriate level of protection and is, therefore,inconsistent with Article 5.6.  As already set out above
75, a measure is considered more trade-
restrictive than required if there is another SPS measure which:
(1) is reasonably available taking into account technical and economic feasibility;
(2) achieves the Member's appropriate level of protection;  and
(3) is significantly less restrictive to trade than the SPS measure contested.
124. As noted above, the United States argued that "testing by product" is an alternative measure
which meets the three cumulative elements under Article 5.6.  The Panel was not, however, convincedthat there was sufficient evidence to find that "testing by product" would achieve Japan's appropriatelevel of protection.
76
125. The Panel then turned its attention to an alternative measure which had been  suggested   by
the experts advising the Panel, i.e., the "determination of sorption levels".77  The Panel explained that
it  deduced  this alternative measure from the written answers of the experts to the Panel's questions
and from their statements at the Panel's meeting with the experts.78  We note that the Panel explicitly
stated that the United States, as complaining party, did  not specifically argue   that the "determination
of sorption levels" met any of the three elements under Article 5.6.79  On the basis of the evidence
before it, including its deductions from the views expressed by the experts80, the Panel came to the
conclusion that it could be presumed that the "determination of sorption levels was an alternativemeasure which would meet all of the elements under Article 5.6".
81  The Panel pointed out that the
United States had "given views which were consistent with" the argument that this alternative
                                                     
75See supra , para. 95.
76The United States appeals from this finding, but we have upheld it ( supra , para. 100).
77Panel Report, para. 8.74.
78Ibid.
79Panel Report, footnotes 328, 332 and 333.  See supra , para. 119.
We note that the United States stated in its Appellee's Submission, para. 79, that it "emphasized [testing
by product] in its Article 5.6 arguments because this a lternative meets the requirements of Article 5.6, and
because  there is no scientific evidence to support even limited sorption testing. " (emphasis added)
We also note that the United States declared before the Panel in its Comments on the Experts'
Reponses (p. 3), that "it is not necessary in the context of  this dispute for the United States to address the merits
of [the "determination of sorption levels"], nor is it within the scope of the Panel's terms of reference to make
findings with respect to the comparative efficacy of alternative treatments proposed by technical experts."
80See Panel Report, paras. 8.92 and 8.93 (on the first element) and para. 8.100 (on the second element).
81See Panel Report, para. 8.94 (on the first element), para. 8.97 (on the third element), para. 8.101 (on
the second element) and para. 8.103 (on all three elements).WT/DS76/AB/R
Page 35
measure met the first and third elements under Article 5.6 and had "suggest[ed]" that it would meet
the second element.82
126. Pursuant to the rules on burden of proof set out above, we consider that it was for the United
States to establish a  prima facie  case that there is an alternative measure that meets all three elements
under Article 5.6 in order to establish a  prima facie   case of inconsistency with Article 5.6.  Since the
United States did not even claim before the Panel that the "determination of sorption levels" is analternative measure which meets the three elements under Article 5.6, we are of the opinion that the
United States did not establish a  prima facie  case that the "determination of sorption levels" is an
alternative measure within the meaning of Article 5.6.
127. In paragraph 7.10 of the Panel Report, the Panel stated:
In deciding whether a fact or claim can … be accepted, we consider
that we are called upon to examine and weigh all the evidence validly
submitted to us, including the opinions we received from the expertsadvising the Panel in accordance with Article 13 of the DSU.
We agree.  Article 13 of the DSU allows a panel to seek  information  from any relevant source and to
consult individual experts or expert bodies to obtain their  opinion  on certain aspects of the matter
before it.  In our Report in  United States – Import Prohibition of Certain Shrimp and Shrimp
Products  ("United States – Shrimp "), we noted the "comprehensive nature" of this authority
83, and
stated that this authority is "indispensably necessary" to enable a panel to discharge its duty imposedby Article 11 of the DSU to "make an objective assessment of the matter before it, including anobjective assessment of the facts of the case  and the applicability of and conformity with the relevant
covered agreements  … ."
84
128. Furthermore, we note that the present dispute is a dispute under the  SPS Agreement .
Article 11.2 of the  SPS Agreement  explicitly  instructs  panels in disputes under this Agreement
involving scientific and technical issues to "seek advice from experts".
129. Article 13 of the DSU and Article 11.2 of the  SPS Agreement  suggest that panels have a
significant investigative authority.  However, this authority cannot be used by a panel to rule in favourof a complaining party which has not established a  prima facie  case of inconsistency based on
specific legal claims asserted by it.  A panel is entitled to seek information and advice from experts
                                                     
82Panel Report, paras. 8.91, 8.95 and 8.98.
83Adopted 6 November 1998, WT/DS58/AB/R, para. 104.
84United States – Shrimp, supra , footnote 83, para. 106.WT/DS76/AB/R
Page 36
and from any other relevant source it chooses, pursuant to Article 13 of the DSU and, in an SPS case,
Article 11.2 of the  SPS Agreement , to help it to understand and evaluate the evidence submitted and
the arguments made by the parties, but not to make the case for a complaining party.
130. In the present case, the Panel was correct to seek information and advice from experts to help
it to understand and evaluate the evidence submitted and the arguments made by the United States andJapan with regard to the alleged violation of Article 5.6.  The Panel erred, however, when it used thatexpert information and advice as the basis for a finding of inconsistency with Article 5.6, since the
United States did not establish a  prima facie   case of inconsistency with Article 5.6 based on claims
relating to the "determination of sorption levels".  The United States did not even  argue   that the
"determination of sorption levels" is an alternative measure which meets the three elements underArticle 5.6.
131. We, therefore, reverse the Panel's finding that it can be presumed that the "determination of
sorption levels" is an alternative SPS measure which meets the three elements under Article 5.6,because this finding was reached in a manner inconsistent with the rules on burden of proof.
B. Findings on Apricots, Pears, Plums and Quince
132. With regard to the varietal testing requiremen t as it applies to apricots, pears, plums and
quince, the Panel found in paragraph 8.45 of its Report:
After careful examination we do not consider, therefore, that there is
sufficient evidence before us to extend our finding in paragraph 8.43
also to apricots, pears, plums and quince.  We only find that Japan
maintains the varietal testing requirement without sufficient scientific
evidence with respect to apples, cherries, nectarines and walnuts.
In paragraph 8.104 of the Panel Report, the Panel found that, for the same reasons as set out above, it
was unable to extend its finding of inconsistency with Article 5.6 of the varietal testing requirement asit applies to apples, cherries, nectarines and walnuts to the varietal testing requirement as it applies toapricots, pears, plums and quince.
133. The United States appeals these findings.  With regard to the Panel's finding under
Article 2.2, the United States argues that, under the Panel's interpretation of the burden of proof,complaining parties would be required, based on affirmative evidence, to prove a negative, namely,that there is  no  scientific evidence which supports a measure.  According to the United States, this
interpretation places an impossible burden on complaining parties and would render Article 2.2WT/DS76/AB/R
Page 37
unenforceable.85  Furthermore, the United States asserts that it did establish a  prima facie   case under
Article 2.2 with regard to all products, since it established that Japan failed to provide any specificevidence to support its measure.
86
134. We note that the Panel defined, on the basis of the United States' request for the establishment
of a panel, the measure in dispute as Japan's varietal testing requirement as it applies to " US products
on which Japan claims that codling moth may occur ".87  According to Japan, these products are
apples, cherries, peaches (including nectarines), walnuts, apricots, pears, plums and quince.  The
Panel, thus, considered:
… we are called upon to examine the measure before us as it applies
to  all  products covered by the contested measure.88 (emphasis added)
135. As the parties had only submitted evidence with respect to apples, cherries, nectarines and
walnuts, the Panel stated that it would:
… therefore, examine the measure at issue on the basis of that
evidence and refer to the experts advising the Panel when it comes to
evaluating the relevance of that evidence for the other products
covered by the measure in dispute.89
At its meeting with the experts, the Panel asked them whether their statements about varietal
differences concerning apples, cherries, nectarines  and walnuts were also valid for apricots, pears,
plums and quince.  Dr. Heather answered this que stion with an unqualified "yes" and the two other
experts concurred.90  After having noted that the experts did not further elaborate on their answers and
that neither of the parties provided any additiona l comments or information, the Panel came to the
conclusion that there was not sufficient evidence before it to extend its finding of inconsistency withArticle 2.2 to apricots, pears, plums and quince.
91
                                                     
85Appellant's Submission of the United States, paras. 7 and 22.
86Appellant's Submission of the United States, para. 18.
87Panel Report, para. 8.6.
88Ibid.
89Ibid.
90Panel Report, para. 8.45.
91We note that the Panel failed to make a finding on peaches which are not nectarines.  We consider the
Panel's failure to make a finding on peaches other than nectarines, a product at issue in this dispute, to be an
error of law (see Appellate Body Report, Japan – Taxes on Alcoholic Beverages , adopted 1 November 1996,
WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, p. 26).  This error on the part of the Panel was not,however, appealed by the United States.WT/DS76/AB/R
Page 38
136. According to the rules on burden of proof already discussed above92, the onus was on the
United States to make a  prima facie   case that the varietal testing requirement was inconsistent with
Article 2.2.  In order to do this, the United States was required to adduce evidence sufficient to raise apresumption that the varietal testing requirement was maintained "without sufficient scientificevidence".  With regard to the varietal testing requi rement as it applies to apples, cherries, nectarines
and walnuts, the Panel considered that the United States did adduce sufficient evidence to raise such apresumption.
93  With regard to the varietal testing requirement as it applies to apricots, pears, plums
and quince, the Panel considered, after taking into account both the evidence submitted by the United
States (or the absence thereof) and the opinions received from the experts94, that the United States did
 not  adduce sufficient evidence to raise such a presumption.  As we have already stated in our Report
in  Australia – Salmon95, the Panel's consideration and weighing of the evidence before it relates to its
assessment of the facts and, therefore, falls outside the scope of appellate review under Article 17.6 ofthe DSU.
137. Furthermore, we disagree with the United States that the Panel imposed on the United States
an impossible and, therefore, erroneous burden of proof by requiring it to prove a negative, namely,that there are  no  relevant studies and reports which support Japan's varietal testing requirement.  In
our view, it would have been sufficient for the United States to raise a presumption that there are no
relevant studies or reports.  Raising a presumption that there are no relevant studies or reports is  not 
an impossible burden.  The United States could have requested Japan, pursuant to Article 5.8 of theSPS Agreement , to provide "an explanation of the reasons" for its varietal testing requirement, in
particular, as it applies to apricots, pears, plums and quince.  Japan would, in that case, be obliged toprovide such explanation.  The failure of Japan to bring forward scientific studies or reports in supportof its varietal testing requirement as it applies to apricots, pears, plums and quince, would have been astrong indication that there are no such studies or reports.  The United States could also have askedthe Panel's experts specific questions as to the existence of relevant scientific studies or reports or it
could have submitted to the Panel the opinion of experts consulted by it on this issue.  The United
States, however, did not submit  any  evidence relating to apricots, pears, plums and quince.
96
                                                     
92See supra , paras. 121 and 122.
93Panel Report, para. 8.42.
94Panel Report, para. 7.9.
95Australia – Salmon, supra , footnote 13, para. 261.
96Panel Report, para. 8.6.WT/DS76/AB/R
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138. We, therefore, conclude that the Panel did not err in law in failing to extend its finding of
inconsistency with Article 2.2 to the varietal testing requirement as it applies to apricots, pears, plums
and quince.
139. With regard to the question whether the Panel should have extended its finding of
inconsistency with Article 5.6 to the varietal testing requirement as it applies to apricots, pears, plums
and quince, we recall that we have reversed the Panel's finding of inconsistency with Article 5.6.  Thisquestion, therefore, is moot.
C. Article 11 of the DSU
140. Japan claims that the Panel acted inconsistently with Article 11 of the DSU in making its
finding under Article 2.2 on the varietal testing requirement as it applies to apples, cherries, nectarinesand walnuts.
97  Article 11 of the DSU reads in relevant part:
… a panel should make an objective assessment of the matter before
it, including an objective assessment of the facts of the case …
Japan contends that there was a lack of proper examination of evidence by the Panel, that the Panel
cited the views of the experts in an arbitrary manner and that the Panel's evaluation of the evidencewas contradictory.
141. As we stated in our Report in  European Communities – Hormones 
98, not every failure by the
Panel in the appreciation of the evidence before it can be characterized as failure to make an objectiveassessment of the facts as required by Article 11 of the DSU.  Only egregious errors constitute afailure to make an objective assessment of the facts as required by Article 11 of the DSU.
142. In our view, Japan has not demonstrated that the Panel, in its examination of the consistency
of the varietal testing requirement with Article 2.2, has made errors of the gravity required to find aviolation of Article 11 of the DSU.  We, therefore, conclude that the Panel did not abuse its discretioncontrary to the requirements of Article 11 of the DSU.
                                                     
97Appellant's Submission of Japan, paras. 51-55.
98European Communities – Hormones, supra , footnote 12, para. 133.WT/DS76/AB/R
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VII. Findings and Conclusions
143. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's finding that the varietal testing requirement as it applies to apples,
cherries, nectarines and walnuts is maintained without sufficient scientific evidencewithin the meaning of Article 2.2 of the  SPS Agreement ;
(b) upholds the Panel's finding that even if the varietal testing requirement were
considered to be a provisional measure adopted in accordance with the first sentence
of Article 5.7, Japan has not fulfilled the requirements contained in the second
sentence of Article 5.7 of the  SPS Agreement ;
(c) concludes that the Panel's consideration and weighing of the evidence in support of
the claim of the United States that "testing by product" achieves Japan's appropriatelevel of protection relates to the Panel's assessment of the facts and, therefore, fallsoutside the scope of appellate review;
(d) concludes that, as we have reversed the finding of inconsistency under Article 5.6 of
the  SPS Agreement , there is no need to address the issue of the relationship between
the Panel's finding of inconsistency under Article 2.2 of the  SPS Agreement   and its
finding of inconsistency under Article 5.6;
(e) upholds the Panel's finding that the varietal testing requirement, as set out in the
Experimental Guide,  is a phytosanitary regulation within the meaning of paragraph 1
of Annex B of the  SPS Agreement , and that Japan has acted inconsistently with this
provision and Article 7 of the  SPS Agreement ;
(f) finds that the varietal testing requirement as it applies to apricots, pears, plums and
quince is not based on a risk assessment and, therefore, is inconsistent withArticle 5.1 of the  SPS Agreement ;
(g) concludes that there is no need to address the issue of inconsistency with Article 8
and paragraph 1(c) of Annex C, of the  SPS Agreement   as we have upheld the Panel's
finding under Article 2.2;WT/DS76/AB/R
Page 41
(h) reverses the Panel's finding that it can be presumed that the "determination of sorption
levels" is an alternative SPS measure which meets the three elements under
Article 5.6 of the SPS Agreement , because this finding was reached in a manner
inconsistent with the rules on burden of proof;
(i) concludes that the Panel did not err in law in failing to extend its finding of
inconsistency with Article 2.2 to the variet al testing requirement as it applies to
apricots, pears, plums and quince, and concludes that, as we have reversed the Panel's
finding of inconsistency with Article 5.6, the issue of extending this finding is moot;
and
(j) concludes that the Panel did not abuse its discretion contrary to the requirements of
Article 11 of the DSU.
144. The Appellate Body  recommends  that the DSB request that Japan bring its varietal testing
requirement found in this Report, and in the Panel Report as modified by this Report, to beinconsistent with the  SPS Agreement,  into conformity with its obligations under that Agreement.WT/DS76/AB/R
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Signed in the original at Geneva this 4th day of February 1999 by:
_________________________
Christopher Beeby
Presiding Member
_________________________ _________________________
Julio Lacarte-Muró Mitsuo Matsushita
Member Member