AUSTRALIA – CERTAIN MEASURES AFFECTING THE IMPORTATION OF FRESH FRUIT AND VEGETABLES
Document: Request for the Establishment of a Panel by the Philippines
Date: 10 July 2003
Document codes: WT/DS270/5
Complainant: Philippines
Respondent: Australia
Third parties: Chile, China, EU, Ecuador, India, Thailand, U.S.
Dispute stage: Panel
Agreements cited: Art. 2.3  Sanitary and Phytosanitary Measures (SPS)Art. XI:1  GATT 1994Art. 3.2, 3.5  Import LicensingArt. 2.2, 5.1, 5.2, 5.3, 5.6, 6.1, 6.2, 3.1, 5.5  Sanitary and Phytosanitary Measures (SPS)

AUSTRALIA – CERTAIN MEASURES AFFECTING THE IMPORTATION
OF FRESH FRUIT AND VEGETABLES
Request for the Establishment of a Panel by the Philippines
The following communication, dated 7 July 2003, from the Permanent Mission of the
Philippines to the Chairman of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of
the DSU.
Pursuant to Article 4 of the Understanding on Rules and Procedures Governing the Settlement
of Disputes ("DSU"), Article XXII of the Ge neral Agreement on Tariffs and Trade 1994 ("GATT
1994"), Article 11 of the Agreement on the Application of Sanitary and Phytosanitary Measures
("SPS Agreement"), and Article 6 of the Agreement on Import Licensing Procedures ("Licensing
Agreement"), the Government of the Philippines, on 18 October 2002, requested consultations with
the Government of Australia regarding certain measures restricting the importation of fresh fruit and
vegetables, including fresh banana fruit, fresh papaya fruit and fresh plantain from the Philippines.
The request was circulated to Members on 23 October 2002 in document The
Philippines and Australia held consultations on 15 November 2002 with a view to reaching a mutually
satisfactory solution. However, the consultations have failed to settle the dispute. The Philippines
therefore requests that the Dispute Settlement Body ("DSB") establish a panel to examine the matter.
The concerns of the Philippines relate to the Australian regime for the importation of fresh
fruits and vegetables. This regime is centred around Section 64 of the Quarantine Proclamation 1998,
which sets out that "(t)he importation into Australia of a fresh fruit or vegetable is prohibited unless a
Director of Quarantine has granted the person a permit to import it into Australia". Thus, the
importation of fresh fruit and vegetables into Australia is mandatorily prohibited, unless a Director of
Quarantine grants a permit to import them into Australia.
The Philippines seeks examination by the panel of the a priori prohibition on importation of
fresh fruit and vegetables into Australia. The Philippines also seeks examination by the panel of the
procedures and criteria applied for deciding whether or not to grant a permit for importation of fresh
fruit and vegetables. These derive from the Quarantine Proclamation 1998
1, associated quarantine
legislation2, the exercise of discretion granted to a Director of Quarantine to decide whether or not to
grant a permit for importation of fresh fruit and vegetables, and the legislative and administrative

1 Quarantine Proclamation 1998, of 7 July 1998, as amended (in particular, but not limited to,
Section 64).
2 The Quarantine Act 1908, No. 3, of 1 July 1909, as amended (in particular, but not limited to,
Section 13).

frameworks providing guidance on the exercise of that discretion. 3 The measures at issue include the
application of, as well as any amendments to, the foregoing. Collectively, these are the measures at
issue (the "measures").
The products of concern are all fresh fruit and vegetables for which a Director of Quarantine
has not yet made a decision whether or not to grant a permit for their importation into Australia,
including: (i) fresh fruit and vegetables for which no request for the issuance of a permit to import
("import request") has been made, (ii) fresh fruit and vegetables for which an import request has been
made but no assessment of quarantine risk has been commenced 4, and (iii) fresh fruit and vegetables
for which an import request has been made and an assessment of quarantine risk has been commenced
but not yet completed.5
1. The Philippines considers that the measures are inconsistent with Australia's
obligations under the GATT 1994, the Licensing Agreement, and the SPS
Agreement. In particular, the Philippines is of the view that:
2. The measures constitute prohibitions or restrictions on importation inconsistent with
Article XI:1 of the GATT 1994.
3. The measures, as they relate to the application of the permit regime, are inconsistent
with Article 3.5(f) of the Licensing Agreement as they result in the failure to process
applications for import within the time periods specified in that article. These same
measures likewise engender trade-restrictive and distortive effects on imports
inconsistent with Article 3.2 of the Licensing Agreement.
4. The measures are not based on an assessment of risks as appropriate to the
circumstances, taking into account risk assessment techniques developed by the
relevant international organizations, and are therefore inconsistent with Article 5.1, as
well as paragraph 4 of Annex A, of the SPS Agreement. The measures are also
inconsistent with Articles 5.2 and 5.3 of the SPS Agreement, as they are not based on
a risk assessment taking into account the various factors listed therein.
5. The measures are not based on scientific principles, nor maintained with sufficient
scientific evidence, in violation of Article 2.2 of the SPS Agreement.
6. The measures are more trade-restrictive than required to achieve Australia's
appropriate level of protection and therefore in breach of Article 5.6 of the SPS
Agreement.
7. The measures are not adapted to the phytosanitary characteristics of the areas from
which the fresh fruit and vegetables originate or to which they are destined. In this
context, Australia has not taken into account, in an assessment of the phytosanitary

3 The legislative framework includes Section 64(2) and Section 70 of the Quarantine Proclamation
1998, as well as Section 5D of the Quarantine Act 1908. The administrative framework includes that in the
AFFA Draft Administrative Framework for Import Risk Analysis Handbook (Canberra, 2001), the AQIS Import
Risk Analysis Process Handbook (Canberra 1998), and the AFFA Draft Guidelines to Import Risk Analysis
(Canberra, 2001).
4 Including, but not limited to, Fresh Papaya Fruit from the Philippines (import request made pre-
1994); and Fresh Plantain from the Philippines (import request made in 1995).
5 Including, but not limited to, Fresh Banana Fruit from the Philippines (import request made in 1995,
import risk analysis initiated in June 2000, however a decision has yet to be made on whether or not to grant a
permit for importation).

characteristics of a region, inter alia, the level of prevalence of specific diseases or
pests, the existence of eradication or control programmes, and appropriate criteria or
guidelines developed by relevant international organizations. Furthermore, Australia
does not recognize the concepts of pest- or disease- free areas and areas of low pest or
disease prevalence. These are inconsistent with Articles 6.1 and 6.2 of the SPS
Agreement.
7. The measures are not based on international standards, guidelines or
recommendations and are therefore inconsistent with Article 3.1 of the SPS
Agreement.
8. The measures arbitrarily or unjustifiably discriminate between Members where
similar conditions prevail, and are applied in a manner which constitutes a disguised
restriction on international trade, hence they are inconsistent with Article 2.3 of the
SPS Agreement. Furthermore, Australia maintains arbitrary and unjustifiable
distinctions in the levels of phytosanitary protection that it considers appropriate in
violation of Article 5.5 of the SPS Agreement.
9. Finally, were Australia to invoke Article 5.7 of the SPS Agreement in justification of
its measures, they are not supported by the requirements necessary to allow for their
provisional adoption and/or maintenance under that article. This includes the
measures applied to fresh banana fruit, fresh papaya fruit, and fresh plantain from the
Philippines.
In view of the above, the Philippines respectfully requests the DSB to establish a panel
pursuant to Articles 4.7 and 6 of the DSU, Arti cle XXIII:2 of the GATT 1994, Article 6 of the
Licensing Agreement, and Article 11 of the SPS Agreement to examine this matter. The Philippines
further asks that this request for a panel be placed on the agenda of the next meeting of the DSB
scheduled on 21 July 2003.