EUROPEAN COMMUNITIES – CERTAIN MEASURES AFFECTING POULTRY MEAT AND POULTRY MEAT PRODUCTS FROM THE UNITED STATES
Document: Request for the Establishment of a Panel by the United States
Date: 12 October 2009
Document codes: WT/DS389/4
Complainant: U.S.
Respondent: EU
Third parties: Australia, China, Guatemala, South Korea, New Zealand, Norway, Taiwan
Dispute stage: Panel
Agreements cited: Art. 2.2, 5.1, 5.2, 7, 8, Annex B, Annex C  Sanitary and Phytosanitary Measures (SPS)Art. 4.2  AgricultureArt. III:4, X:1, XI:1  GATT 1994Art. 2.1  Technical Barriers to Trade (TBT)

EUROPEAN COMMUNITIES – CERTAIN MEASURES AFFECTING POULTRY MEAT
AND POULTRY MEAT PRODUCTS FROM THE UNITED STATES

Request for the Establishment of a Panel by the United States

 The following communication, dated 8 October 2009, from the delegation of the United
States to the Chairman of the Dispute Settlement Bo dy, is circulated pursuant to Article 6.2 of the
DSU.

 On January 16, 2009, the United States requested consultations with the European
Communities ("EC") pursuant to Article 4 of the Understanding on Rules and Procedures Governing
the Settlement of Disputes ("DSU"), Article 11 of the Agreement on the Application of Sanitary and
Phytosanitary Measures ("SPS Agreement"), Article 19 of the Agreement on Agriculture
("Agriculture Agreement"), Article XXII of the General Agreement on Tariffs and Trade 1994
("GATT 1994"), and Article 14 of the Agreement on Technical Barriers to Trade ("TBT Agreement")
with regard to certain EC measures affecting poultry meat and poultry meat products from the United
States (). Consultations were held on 11 February 2009, but have failed to settle the
dispute.

 The EC prohibits the import of poultry treated with any substance other than water unless that
substance has been approved by the EC. The EC has not approved any other substance.
Consequently, the EC prohibits the import of po ultry that has been processed with chemical
treatments ("pathogen reduction treatments" or "P RTs") designed to reduce the amount of microbes
on the meat, effectively prohibiting the shipment of virtually all US poultry to the EC. The EC has
not published or otherwise made available the pr ocess for approving a substance. The EC also
maintains a measure regarding the marketing standa rds for poultry meat, which defines "poultrymeat"
as only "poultrymeat suitable for human consumptio n, which has not undergone any treatment other
than cold treatment."

 In 2002, the United States requested the Eu ropean Commission ("Commission") to approve
the use of four PRTs in the production of poultry intended for export to the EC: acidified sodium
chlorite, trisodium phosphate, peroxyacids, and chlorine dioxide. However, after more than six years,
including unexplained delays, the EC has not a pproved any of these four PRTs and instead has
rejected the approval of their use.

 The EC's failure to approve is despite the fact that various EC agencies have issued scientific
reports regarding a number of different aspects rela ted to the processing of poultry with these four
PRTs. Those reports did not find any scientific basis for banning the use of these PRTs. To the

contrary, the conclusion of these reports is that the importation and consumption of poultry processed
with these four PRTs does not pose a risk to human health.
1

 In May 2008, the Commission submitted a propo sal to the EC Standing Committee on the
Food Chain and Animal Health ("SCoFCAH") that purported to approve the import into the EC of
poultry treated with these four PRTs. On 2 June 2008, SCoFCAH rejected the Commission's proposal
unanimously, with the United Kingdom abstaining. On 18 December 2008, the EC Agricultural and
Fisheries Council rejected the same Commission proposal by the same tally as SCoFCAH.

 The United States understands that these EC measures are reflected in, among others:

(1) Regulation (EC) No 853/2004, including Articles 3 and 6;
2
(2) Council Regulation (EC) No 1234/2007, including Annex XIV(B)(II);3
(3) SCoFCAH's rejection of the Commission's proposal regarding the removal of surface
contamination from poultry carcasses on 2 June 2008;4
(4) the EU Agricultural and Fisheries Council' s rejection of the Commission's proposal
regarding the removal of surface contamination from poultry carcasses on 18
December 2008;
5 and
(5) any amendments, related measures, or implementing measures.

 The EC measures appear to be inconsistent with:

(i) SPS Agreement Articles 2.2, 5.1, 5.2, 7, and 8, and Annexes B(1), B(5), and C(1);
(ii) Agriculture Agreement Article 4.2;
(iii) GATT 1994 Articles III:4, X:1, and XI:1; and
(iv) TBT Agreement Article 2.1.

 The EC measures also appear to nullify or impa ir the benefits accruing to the United States
directly or indirectly under the cited agreements.

 Accordingly, the United States respectfully requ ests, pursuant to Article 6 of the DSU, that
the Dispute Settlement Body establish a panel, with st andard terms of referen ce as set out in Article
7.1 of the DSU, to examine the matter described above.

Treatments for Poultry Carcasses," and on April 14-15, 2003, entitled "The Evaluation of Antimicrobial
Treatments for Poultry Carcasses," both of which purport, in part, to be risk assessments.
2 Regulation (EC) No 853/2004 of the European Parliament and of the Council of 29 April 2004, O.J.
L. 226 (June 25, 2004), pp. 26-27.
3 Council Regulation (EC) No 1234/2007 of 22 October 2007, O.J. L 299 (16 Nov. 2007), p. 110.
4 See Summary Record of the Standi ng Committee on the Food Chain and Animal Health Held in
Brussels on 2 &3 June 2008, SANCO D1 – D(08) 411209, para. 18A.
5 See, e.g., Press Release 16916/08, 2917th Meeting of the Agricultural and Fisheries Council (18-19
Dec. 2008), p. 8 ("The Council unanimously rejected a proposal for a Decision regarding the possibility of using
antimicrobial substances to remove surface contamination from poultry carcasses.").