EUROPEAN COMMUNITIES – MEASURES CONCERNING MEAT AND MEAT PRODUCTS (HORMONES)
Document: Recourse to Article 21.5 of the DSU by the European Communities Request for Consultations
Date: 8 January 2009
Document codes: WT/DS26/23
Complainant: U.S.
Respondent: EU
Third parties: Australia, Canada, New Zealand, Norway
Dispute stage: Implementation & Compliance
Agreements cited: Art. III, XI  GATT 1994Art. 2  Technical Barriers to Trade (TBT)Art. 4  AgricultureArt. 2, 3, 5  Sanitary and Phytosanitary Measures (SPS)

EUROPEAN COMMUNITIES – MEASURES CONCERNING
MEAT AND MEAT PRODUCTS (HORMONES)

Recourse to Article 21.5 of the DSU by the European Communities

Request for Consultations

 The following communication, dated 22 Decembe r 2008, from the delegation of the European
Communities to the delegation of the United States and to the Chairman of the Dispute Settlement
Body, is circulated in accordance with Article 21.5 of the DSU.

 The European Communities hereby requests cons ultations with the United States of America
("United States") under Articles 21.5 and 4 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU").

 On 25 April 1996 the United States requested th e establishment of a panel, referring to the
following measures:

The European Communities (EC) have adopt ed and maintain the Council Directive
Prohibiting the Use in Livestock Farming of Certain Substances Having a Hormonal
Action and related measures. These include, but are not limited to, the Council
Directive of March 7, 1988, (88/146/EEC); th e directives referenced in that directive
(72/462/EEC, 81/602/EEC, 81/851/EEC, 81/852/EEC, and 85/358/EEC); the
decisions referred to in Article 6(2) of directive 88/146/EEC; the control program
referred to in Article 6(7) of directive 88/146/EEC; the derogations referred to in
Article 7 of directive 88/146/EEC; and any amendments or modifications.
 1
 The original panel report states that the disput e concerned in particular Directive 81/602/EEC,
Directive 88/146/EEC and Directive 88/299/EEC, 2 and refers to other measures relevant to the
dispute, including Directive 96/22. 3 The original panel report also records that on 29 April 1996 the
European Communities adopted Directive 96/22, replacing Directive 81/602/EEC, Directive
88/146/EEC and Directive 88/299/EEC;
4 and that EC Member States were required to comply with
Directive 96/22 by 1 July 1997 at the latest. 5 The original panel report explains that, inter alia, these

1 WT/DS26/6, 25 April 1996.
2 Panel Report, EC – Hormones (US), WT/DS26/R/USA, para. 2.1.
3 Panel Report, EC – Hormones (US), footnote 2.
4 Council Directive 96/22/EC of 29 April 1996 concerning the prohibition on the use in stockfarming
of certain substances having a hormonal or thyrostatic action and of beta-agonists, and repealing Directives
81/602/EEC, 88/146/EEC and 88/299/EEC ( Official Journal of the European Communities L 125 of 23 May
1996, p. 3).
5 Panel Report, EC – Hormones (US), para. 2.5.

measures prohibited or restricted the administering to farm animals of six hormones, or the placing on
the market of animals or meat from animals to which such hormones have been administered.
6 The six
hormones involved in the dispute were: oestradiol 17 β; testosterone; progesterone; trenbolone acetate;
zeranol; and melengestrol acetate (MGA). 7 The United States claimed that, as a result of these
measures, its imports of beef to the European Communities had been substantially impaired.8

 On 13 February 1998, the Dispute Settlement Body ("DSB") adopted the Appellate Body
report in ("EC
– Hormones") and the panel report as modified by the Appellate Body report. 9 The Appellate Body
upheld the panel's findings that the measures were inconsistent with Article 5.1 of the SPS Agreement,
because they were not based on a risk assessment within the meaning of Articles 5.1 and 5.2 of the
SPS Agreement .10 The Appellate Body recommended that the DSB request the European
Communities to bring the SPS measures found in the Appellate Body report and in the panel report, as
modified by the Appellate Body repor t, to be inconsistent with the SPS Agreement into conformity
with the obligations of the European Communities under that Agreement.

 In light of the DSB recommendations and rulings in EC – Hormones, and in order to comply
with them, the European Communities initiated a nd funded a number of specific studies and research
projects, requested third countries (including the United States) for any scientific data and information
in their possession, reviewed the findings of independent expert bodi es, taking into account
information from relevant intern ational organisations, and performed an extensive review of the
available scientific evidence and of available per tinent information concerning the six substances at
issue.11 For oestradiol 17 β, the European Communities disposed of sufficient scientific evidence to
perform a risk assessment within the meaning of Article 5.1 of the SPS Agreement. For the other five
substances, having regard to the European Commun ities appropriate level of protection, relevant
scientific evidence was insufficient for performing a risk assessment within the meaning of Article 5.1
of the SPS Agreement and risk assessments within the meaning of Article 5.7 of the SPS Agreement
were performed on the basis of available pertinent information.

 Based on these risk assessments and on the basis of all other available pertinent information,
the European Communities a dopted Directive 2003/74/EC,
12 which entered into force on 14 October
2003.13 Pursuant to Directive 2003/74/EC, there is a permanent prohibition for the placing on the

6 Panel Report, EC – Hormones (US), paras 2.1 to 2.5.
7 Panel Report, EC – Hormones (US), paras 2.8 to 2.9; Appellate Body Report, EC-Hormones, paras 2
to 5.
8 Panel Report, EC – Hormones (US), para. 4.10, final sentence.
9 Action by the Dispute Settlement Body (WT/DS26/13, 19 February 1998); Appellate Body report
(WT/DS26/AB/R, 16 January 1998); Panel Report (WT/DS26/R/USA, 18 August 1997).
10 Appellate Body Report, EC-Hormones, paras 253(l) and 208.
11 Opinion of the Scientific Committee on Veterinary Measures Relating to Public Health (SCVPH):
Assessment of potential risks to human health from hormone residues in bovine meat and meat products
(30 April 1999); Opinion on review of previous SCVPH opinions of 30 April 1999 and 3 May 2000 on the
potential risks to human health from hormone residues in bovine meat and meat products (adopted on 10 April
2002) and Review of specific documents relating to the SCVPH opinion of 30 April 99 on the potential risks to
human health from hormone residues in bovine meat and meat products (adopted on 3 May 2000). These
opinions have been made available to the public and are still accessible on:
http://ec.europa.eu/food/food/chemicalsafety/contaminants/hormones/sci_opinion_en.htm.
12 Directive 2003/74/EC of the European Parliament and of the Council of 22 September 2003
amending Council Directive 96/22/EC concerning the prohibition on the use in stockfarming of certain
substances having a hormonal or thyrostatic action and of beta-agonists (Official Journal of the European Union
L 262 of 14 October 2003, p. 17). Recitals 1-13 of Directive 2003/74/EC summarise the reasons for its
adoption.
13 Directive 96/22/EC was most recently amende d by Directive 2008/97/ EC of the European
Parliament and the Council of 19 November 2008 amending Council Directive 96/22/EC concerning the

market of meat and meat products fro m animals treated with oestradiol 17 β for growth-promotion
purposes, and a provisional prohibition for the placing on the market of meat and meat products from
animals treated with testosterone, progesterone, trenbolone acetate, zeranol and melengestrol acetate
(MGA) for growth-promotion purposes, pending the obtaining of additional information.
14

 The European Communities continues to observe scientific developments in this area and
gathers additional information on these five substa nces. In June 2007, the European Food Safety
Authority completed another review of the available pertinent information and concluded that the new
data did not call for a revision of the previous assessments of the Scientific Committee on Veterinary
Measures relating to Public Health that were performed in 1999, 2000 and 2002.15

 The European Communities considers that by gathering and analysing all the available
pertinent scientific and other evidence, by perfo rming risk assessments, by adopting Directive
2003/74/EC, by properly notifying it to the WTO, and by continuing to seek to obtain additional
information on testosterone, progesterone, trenbo lone acetate, zeranol and melengestrol acetate
(MGA), it has brought the measures found to be inc onsistent into compliance with the relevant
provisions of the SPS Agreement , in line with the recommendations and rulings of the DSB. This
remains the case as of the date of this consultation request.

 In light of the above, the European Communiti es considers that the measures taken to comply
are:

– in compliance with Article 5.1 of the SPS Agreement, as far as oestradiol 17 β is concerned,
since it is "based on an assessment, as appropriate to the circumstances, of the risk to human
[…] life or health, taking into account risk assessment techniques developed by the relevant
international organisations"; and

– in compliance with Article 5.7 of the SPS Agreement , as far as testosterone, progesterone,
trenbolone acetate, zeranol and melengestrol acet ate (MGA) are concerned, since for each of
these substances the "relevant scien tific evidence is insufficient" , the measure is maintained
"provisionally" and "on the basis of available pertinent information, including that from the
relevant international organizations as we ll as from sanitary or phytosanitary measures
applied by other Members", and the European Communities sought "to obtain the additional
information necessary for a more objective assess ment of risk and review the sanitary or
phytosanitary measure accordingly within a reasonable period of time".

 The European Communities therefore considers that the conditions in the first sentence of
Article 22.8 of the DSU have been met and, as a consequence, the United States must terminate the
suspension of concessions without delay.

 The European Communities understands that th e United States disagrees with these positions,
as demonstrated by the fact that the United Stat es maintains the suspensi on of concessions to the

prohibition on the use in stockfarming of certain substances having a hormonal or thyrostatic action and of beta-
agonists (Official Journal of the European Union L 318 of 28 November 2008, p. 9).
14 The European Communities notified the DSB of the adoption of Directive 2003/74/EC with a
Communication on 27 October 2003, circulated und er reference WT/DS26/22, where the European
Communities stated that it considered that it had fully implemented the recommendations and rulings of the
DSB and, as a consequence, the susp ension of concessions to the EC by the United States and Canada was no
longer justified.
15 Opinion of the Scientific Panel on contaminants in the food chain (CONTAM) related to hormone
residues in bovine meat and meat products, question number: EFSA-Q-2005-048, adopted on 12 June 2007,
published in The EFSA Journal (2007) 510, pages 1 – 62, available on:
http://www.efsa.europa.eu/EFSA/efsa_locale-1178620753812_1178622336805.htm.

European Communities by continuing to impose import duties in excess of bound rates on imports
from the European Communities and by considering revision of the products to which the suspension
of concessions applies.

 With these consultations, the European Co mmunities intends to enable the European
Communities and the United States to resolve their disagreement on the substantive compliance with
the DSB rulings and recommendations achieved by th e measures taken to comply, and to have the
United States terminate the suspension of concessions immediately.

 The European Communities looks forward to r eceiving in due course the United States' reply
to this request and to setting a mutually convenient date and modality for these consultations.