JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES
Document: Statement by Japan
Date: 22 July 2005
Document codes: WT/DS245/19; WT/DS245/RW
Complainant: U.S.
Respondent: Japan
Third parties: Australia, Brazil, China, Taiwan, EU, New Zealand
Dispute stage: Mutually Agreed Solution
Agreements cited: Art. XI  GATT 1994Art. 2.2, 2.3, 5.1, 5.2, 5.3  Sanitary and Phytosanitary Measures (SPS)Art. 4.2  AgricultureArt. 5.5, 5.6, 6.1, 6.2, 7, Annex B  Sanitary and Phytosanitary Measures (SPS)

JAPAN – MEASURES AFFECTING THE IMPORTATION OF APPLES

Statement by Japan

 The following statement received from the delega tion of Japan in relation to the adoption by
the Dispute Settlement Body, at its meeting on 20 July 2005, of the report of the Panel in : R ecourse to Article 21.5 of the DSU by the United
States (), is circulated at the request of that delegation.

 First of all, Japan would like to express its gr atitude to the Panel as well as to the Secretariat
for their efforts in tackling the high ly technical and complex issues of a scientific nature involved in
this case, in order to review Japan's measures which were the subject of this dispute.

 Regrettably, the Panel found that Japan's re vised phytosanitary measures at issue were
inconsistent with the Agreement on the Applica tion of Sanitary and Phytosanitary Measures (SPS
Agreement). This ultimate finding of the Panel was more than disappointing to Japan.

 The Panel imposed on Japan a very heavy burde n of proof. In this proceeding, Japan
presented its new scientific studies on fire blight bacteria, which were conducted under the proximate
ecological condition. These studies demonstrate that mature, symptomless apples can harbour
endophytic bacteria and that the pathway of transmission could be completed from a discarded
infested or infected apple to a host plant, which would then lead to the establishment and spread of
fire blight disease. These studies, proximate to the highest degree, had to be done in a laboratory, in
order to prevent a potential risk of fire blight b acteria from accidentally spreading to the unique, fire
blight-free natural conditions of Japan. Contrary to Japan's argument, however, the Panel, based on
the opinion of the experts, ruled that these new studies did not provide sufficient scientific evidence to
establish the risk of fire blight in natural conditions.

 Elsewhere, in relation to Article 5.6 of the SPS Agreement, the Panel concluded that "the
requirement that apples imported into Japan be mature and symptomless is an alternative measure that
is reasonably available taking into account technical and economic feasibility". In this regard, Japan
argued before the Panel that the United States expo rt control could involve a human error and thus
was not 100 per cent reliable as demonstrated by the presence of codling moth in shipments to
Chinese Taipei. The Panel again did not value this argument.

 Nevertheless, we would like to emphasize the fact that the Panel did not reject all the
elements of Japan's revised phytosanitary measure s. Significantly the Panel confirmed that Japan
would be entitled to verify that only mature, sy mptomless apples would be actually exported to Japan
from the United States.

 Although we are bound to note our disappointment with the Panel's findings, Japan decided
not to appeal and accept that this Report of th e Panel will be adopted today. Japan has always
emphasized the importance of the proper functioning of the DSU and the faithful implementation of
the recommendations and rulings of the DSB. Once a dopted, in view of the gravity of its obligation,
Japan will sincerely address the implementation of the DSB's recommendations and rulings in a
manner consistent with Japan's obligations under the WTO Agreem ents. Likewise we hope that other
Members commit themselves to enhance the integrity of the WTO dispute settlement system.

 In this regard, Japan would like to inform the DSB that it has been engaging in close
consultations with the United States to explore ways to secure compliance in a mutually acceptable
manner. In order to allow this process to continue and to yield a satisfactory solution, Japan and the
United States have agreed to suspend the ar bitration under Article 22.6 of the DSU until
31 August 2005. Japan and the United States submitted the joint request to this effect to the Chairman
of the Arbitrator on 18 July.