AUSTRALIA – MEASURES AFFECTING THE IMPORTATION OF APPLES FROM NEW ZEALAND
Document: Notification of an Appeal by Australia under Article 16.4 and Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), and under Rule 20(1) of the Working Procedures for Appellate Review
Date: 3 September 2010
Document codes: WT/DS367/13
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

Notification of an Appeal by Australia

under Article 16.4 and Article 17 of the Understanding on Rules
and Procedures Governing the Settlement of Disputes (DSU),
and under Rule 20(1) of the Working Procedures for Appellate Review

 The following notification, dated 31 August 2010, from the Delegation of Australia, is being
circulated to Members.

Governing the Settlement of Disputes (DSU) and Rule 20 of the Working Procedures for Appellate
Review, Australia hereby notifies its decision to appeal to the Appellate Body certain issues of law
covered in the report of the Panel entitled () (Panel Report) and certain legal interpretations developed by the
Panel.

2. Australia seeks review by the Appellate Body of the following errors of law and legal
interpretation contained in the Panel Report:

(a) In ultimately finding in the Panel Report at [8.1](b) that the 16 measures at issue, both
as a whole and individually, constitute SPS measures, the Panel erred in its
interpretation and application of the defin ition of "sanitary or phytosanitary measure"
in Annex A(1) to the Agreement on the Application of Sanitary and Phytosanitary
Measures (SPS Agreement). The error appears at [7.113]-[7.187] of the Panel
Report.
(b) In ultimately finding in the Panel Report at [8.1](c) that the measures imposed by
Australia for fire blight and apple leafcu rling midge (ALCM), as well as the general
measures, are inconsistent with the re quirements of Arts 5.1 and 5.2 (and
consequently Art 2.2) of the SPS Agreement, the Panel erred in its interpretation and
application of what constitutes a proper "risk assessment". The errors appear at
[7.240-7.472], [7.473-7.510], [7.782-7.887] and [7.898-7.906] of the Panel Report.
(c) In ultimately finding in the Panel Report at [8.1](c) that the measures imposed by
Australia for fire blight and ALCM, as well as the general measures, are inconsistent
with the requirements of Arts 5.1 and 5. 2 (and consequently Art 2.2) of the SPS
Agreement, the Panel failed in the performance of its duty under Art 11 of the DSU to
make an "objective assessment of the matte r". The errors appear at [7.240-7.472],
[7.473-7.510], [7.782-7.887] and [7.898-7.906] of the Panel Report.

(d) In ultimately finding in the Panel Report at [8.1](d) that the measures imposed by
Australia for fire blight and ALCM are inconsistent with the requirements of Art 5.6
of the SPS Agreement, the Panel relied upon its erroneous findings against the risk
assessments for fire blight and ALCM unde r Arts 5.1 and 5.2 (and consequently
Art 2.2) of the SPS Agreement in concluding that New Zealand's alternative measures
would achieve Australia's appropriate level of protection (ALOP). In addition to or in
the alternative, the Panel erred in its inte rpretation and application of Art 5.6, and
failed to make an "objective assessment of the matter" as required by Art 11 of the
DSU, in concluding that New Zealand's alternative measures would achieve
Australia's ALOP. The errors appear at [7.1133-7.1197] and [7.1286-7.1331] of the
Panel Report.