AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES FROM NEW ZEALAND
Document: Request for the Establishment of a Panel by New Zealand
Date: 7 December 2007
Document codes: WT/DS367/5
Complainant: New Zealand
Respondent: Australia
Third parties: Chile, EU, Japan, Pakistan, Taiwan, U.S.
Dispute stage: Appellate Body
Agreements cited: Art. 2.2, 2.3, 5.1, 5.2, 5.5, 5.6, 8, Annex C  Sanitary and Phytosanitary Measures (SPS)

AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES
FROM NEW ZEALAND

Request for the Establishment of a Panel by New Zealand

 The following communication, dated 6 Decemb er 2007, from the delegation of New Zealand
to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU.

 On 27 March 2007, the Australian Director of Animal and Plant Quarantine determined a
policy for the importation of apples from New Zeal and: "Importation of apples can be permitted
subject to the Quarantine Act 1908, and the application of phytosanitary measures as specified in the
Final import risk analysis report for apples from New Zealand, November 2006".1

 New Zealand considers that the measures specifi ed in and required by Australia pursuant to
the Final import risk analysis report for apples from New Zealand are inconsistent with the
obligations of Australia under the Agreement on the Application of Sanitary and Phytosanitary
Measures ("SPS Agreement").

 In particular, New Zealand considers that the following measures are, both individually and as
a whole, inconsistent with the obligations of Australia under the SPS Agreement:

Fire blight

• The requirement that apples be sourced from areas free from fire blight disease
symptoms.
• The requirement that orchards/blocks be inspected for fire blight disease symptoms,
including that they be inspected at an inspection intensity that would, at a 95%
confidence level, detect visual symptoms if shown by 1% of the trees, and that such
inspections take place between 4 to 7 weeks after flowering.
• The requirement that an orchard/block inspection methodology be developed and
approved that addresses issues such as visibility of symptoms in the tops of trees, the
inspection time needed and the number of trees to be inspected to meet the efficacy level,
and training and certification of inspectors.
• The requirement that an orchard/block be suspended for the season on the basis that any
evidence of pruning or other activities carried out before the inspection could constitute
an attempt to remove or hide symptoms of fire blight.

1 Biosecurity Australia Policy Memorandum 2007/07, 27 March 2007.

• The requirement that an orchard/block be suspended for the season on the basis of
detection of any visual symptoms of fire blight.
• The requirement that apples be subject to disinfection treatment in the packing house.
• The requirement that all grading and packing equipment that comes in direct contact with
apples be cleaned and disinfected (using an approved disinfectant) immediately before
each Australian packing run.
• The requirement that packing houses registered for export of apples process only fruit
sourced from registered orchards.
European canker

• The requirement that apples be sourced fro m export orchards/blocks free of European
canker (pest free places of production).
• The requirement that all trees in export orch ards/blocks be inspected for symptoms of
European canker, including that orchards/b locks in areas less conducive for disease are
inspected for symptoms by walking down ever y row and visually examining all trees on
both sides of each row, and that areas more conducive to the disease are inspected using
the same procedure combined with inspection of the upper limbs of each tree using
ladders (if needed), and that such inspections take place after leaf fall and before winter
pruning.
• The requirement that all new planting stock be intensively examined and treated for
European canker.
• The requirement that an orchard/block be suspended for the season on the basis that any
evidence of pruning or other activities carried out before the inspection could constitute
an attempt to remove or hide symptoms of European canker.
• The requirement that exports from an orch ard/block be suspended for the coming season
on the basis of detection of European ca nker and that reinstatement would require
eradication of the disease, confirmed by inspection.
Apple leafcurling midge

• The requirements of inspection and treatment for apple leafcurling midge, including:
the option of inspection of each lot on the b asis of a 3000 unit sample selected at random
across the whole lot for apple leafcurling midge, symptoms of quarantineable diseases,
quarantineable pests, arthropods, trash and weed seeds, with detection of any live
quarantineable arthropod resulting in appropriate treatment or rejection for export;
the option of inspection of each lot on the basis of a 600 unit sample selected at random
across the whole lot for symptoms of quarantin eable diseases, trash and weed seeds, plus
mandatory appropriate treatment of all lots.

General

• The requirement that Australian Quarantine and Inspection Service officers be involved
in orchard inspections for European canker a nd fire blight, in direct verification of
packing house procedures, and in fruit inspection and treatment.
• The requirement that New Zealand ensure th at all orchards registered for export to
Australia operate under standard commercial practices.
• The requirement that packing houses provide details of the layout of premises.
 New Zealand considers that the above measure s are inconsistent with the obligations of
Australia under Articles 2.2, 2.3 (both sentences), 5.1, 5.2, 5.5 (first sentence), 5.6 and 8 (in relation to
Annex C) and Annex C(1)(a) of the SPS Agreement.

 On 31 August 2007, New Zealand requested cons ultations with Australia regarding the above
measures pursuant to Article XXII of the General Agreement on Tariffs and Trade 1994 , Article 4 of
the Understanding on Rules and Procedures Governing the Settlement of Disputes ("DSU"), and
Article 11 of the SPS Agreement. In accordance with Article 4 of the DSU the request was notified to
the Dispute Settlement Body ("DSB"), the Counc il for Trade in Goods, and the Committee on
Sanitary and Phytosanitary Measures. The request was circulated to members of the World Trade
Organization on 4 September 2007 (WT/DS367/1). Australia accepted New Zealand's request and
consultations were held on 4 Oc tober 2007 in Geneva. However, th e consultations have failed to
resolve the matter.

 Accordingly, New Zealand respectfully requ ests the DSB to establish a panel pursuant to
Article 6 of the DSU, with standard terms of reference as set out in Article 7.1 of the DSU.

 I would be grateful if you would place this item on the agenda for the next DSB meeting on
17 December 2007 and circulate this request to Members.