European Union – Additional Measures Concerning
the Importation of Citrus Fruit from South Africa
Request
for Consultations by South Africa
The
following communication, dated 15 April 2024 and received on 19 April 2024,
from the delegation of South
Africa to the delegation of the European Union, is circulated to
the Dispute Settlement Body in accordance with Article 4.4 of the DSU.
_______________
My authorities have instructed me to request consultations with the
European Union pursuant to Article XXIII of the General Agreement on Tariffs
and Trade of 1994 (GATT 1994), Article 4 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (DSU), and Article 11 of the
Agreement on the Application of Sanitary and Phytosanitary Measures
(SPS Agreement), concerning certain aspects of the European Union's (EU)
regime on the importation of citrus fruit from South Africa described below.
As this request concerns perishable products, South Africa also makes
this request pursuant to Article 4.8 of the DSU and reserves its rights
thereunder.
We note that South Africa has already requested and since engaged in
consultations with the EU regarding the application of certain phytosanitary
measures relating to Thaumatotibia
leucotreta ("false codling moth") that affect the
importation of citrus fruit from South Africa.[1] As
explained below, this request addresses the application of those EU
phytosanitary measures relating to P. citricarpa
("citrus black spot" or "CBS") that also affect the
importation of citrus fruit from South Africa.
Pursuant to Article 4.4 of the DSU, South Africa describes below the
reasons for this request, including the identification of the measure at issue
and an indication of the legal basis for the complaints.
IDENTIFICATION OF THE MEASURE AT ISSUE
The measure at issue concerns certain aspects of the import regime
imposed by the European Union (EU) on citrus fruit from South Africa, as
described below. Since at least 1992, the EU has prohibited the importation of
South African citrus fruit affected by Phyllosticta citricarpa
(McAlpine) Van der Aa, despite the fact
that citrus fruit is not a viable pathway for the transmission of this
organism. Moreover, without sufficient scientific reasons, the EU has
categorised this organism as a quarantine pest for citrus fruit without leaves
and furthermore as a "priority pest".[2]
As a direct result of this erroneous categorisation, the EU establishes,
inter alia, burdensome approval,
verification, sampling, checking, inspection, testing, packaging,
transportation, certification, labelling and traceability requirements that
must be met in order to import specified fruits[3] into the
EU.[4]
The EU's measure is contained in, and based on, the following
instruments:
(i)_
Council Directive 2000/29/EC, of 8 May 2000,
"on protective measures against the introduction into the Community of
organisms harmful to plants or plant products and against their spread within
the Community", as amended;
(ii)_
Commission Implementing
Decision (EU) 2016/715 of 11 May 2016 setting out measures in respect of
certain fruits originating in certain third countries to prevent the
introduction into and the spread within the Union of the harmful organism Phyllosticta citricarpa (McAlpine) Van der
Aa.
(iii)_
Regulation (EU) 2016/2031 on protective measures
against pests of plants, amending Regulations (EU) No 228/2013, (EU) No
652/2014 and (EU) No 1143/2014 of the European Parliament and of the Council
and repealing Council Directives 69/464/EEC, 74/647/EEC, 93/85/EEC, 98/57/EC,
2000/29/EC, 2006/91/EC and 2007/33/EC, which came into effect on 14 December
2019;
(iv)_
Regulation (EU) 2017/625 of the European
Parliament and of the Council of 15 March 2017 on official controls
and other official activities performed to ensure the application of food and
feed law, rules on animal health and welfare, plant health and plant protection
products, amending Regulations (EC) No 999/2001, (EC) No 396/2005, (EC) No
1069/2009, (EC) No 1107/2009, (EU) No 1151/2012, (EU) No 652/2014, (EU)
2016/429 and (EU) 2016/2031 of the European Parliament and of the Council,
Council Regulations (EC) No 1/2005 and (EC) No 1099/2009 and Council Directives
98/58/EC, 1999/74/EC, 2007/43/EC, 2008/119/EC and 2008/120/EC, and repealing
Regulations (EC) No 854/2004 and (EC) No 882/2004 of the European Parliament
and of the Council, Council Directives 89/608/EEC, 89/662/EEC, 90/425/EEC,
91/496/EEC, 96/23/EC, 96/93/EC and 97/78/EC and Council Decision 92/438/EEC
(Official Controls Regulation);
(v)_
Commission Delegated Regulation (EU) 2019/1702
of 1 August 2019 supplementing Regulation (EU) 2016/2031 of the European
Parliament and of the Council by establishing the list of priority pests;
(vi)_
Commission Implementing Regulation (EU)
2019/2072 of 28 November 2019 establishing uniform conditions for the
implementation of Regulation (EU) 2016/2031 of the European Parliament and the
Council, as regards protective measures against pests of plants, and repealing
Commission Regulation (EC) No 690/2008 and amending Commission Implementing
Regulation (EU) 2018/2019;
(vii)_
Commission Implementing Regulation (EU) 2022/632
of 13 April 2022 setting out temporary measures in respect of specified fruits
originating in Argentina, Brazil, South Africa, Uruguay and Zimbabwe to
prevent the introduction into, and the spread within, the Union territory of
the pest Phyllosticta citricarpa (McAlpine) Van
der Aa; and
(viii)_ Scientific
Opinion on the risk of Phyllosticta citricarpa
(Guignardia citricarpa) for the EU
territory with identification and evaluation of risk reduction options,
prepared by the European Food Safety Authority (EFSA), 2014, and supporting
documentation including the draft Scientific Opinion on the risk of Phyllosticta citricarpa (Guignardia citricarpa)
for the EU territory with identification and evaluation of risk reduction
options, EFSA, 2013; Technical Report: Outcome of the public consultation on
the draft Scientific Opinion on the risk of Phyllosticta citricarpa
(Guignardia citricarpa) for the EU
territory with identification and evaluation of risk reduction options, EFSA,
2014; as well as Pest survey card on Phyllosticta
citricarpa, EFSA, 2020.
South
Africa's request also covers any additional measures that may amend, supersede,
supplement, add to, update, extend, replace, or implement the EU's measure at
issue.
LEGAL BASIS FOR THE COMPLAINT
The EU's measure at issue appears to be inconsistent with the EU's
obligations under the Agreement Establishing the World Trade Organization (WTO
Agreement). In particular, the EU's measure appears to be inconsistent with:
(i)_
Article 1.1 of the SPS Agreement, as it is a
phytosanitary measure under the SPS Agreement that is not "applied in
accordance with the provisions of this Agreement";
(ii)_
Article 2.2 of the SPS Agreement, as it is not
"based on scientific principles", it is "maintained without
sufficient scientific evidence", and it is not "applied only to the
extent necessary to protect … plant life or health";
(iii)_
Articles 3.1, 3.2, and 3.3 of the SPS Agreement,
to the extent that a relevant international standard exists, and the EU has
failed to base its measure on it or to provide scientific justification to
deviate from it;
(iv)_
Articles 5.1, 5.2 and 5.3 of the SPS Agreement,
as it is not "based on an assessment, as appropriate to the circumstances,
of the risks to … plant life or health" and does not "take into
account" the factors listed in Articles 5.2 and 5.3 of the SPS Agreement;
(v)_
not covered by Article 5.7 of the SPS Agreement,
as the EU is not in a situation "where relevant scientific evidence is
insufficient"; and, in any event, the EU does not comply with any of the
requirements set forth in this provision;
(vi)_
Articles 5.5 and 2.3 of the SPS Agreement, to
the extent that the EU makes "arbitrary or unjustifiable distinctions in
the levels it considers appropriate in different situations" and
"discriminate[s] between Members where identical or similar conditions
prevail";
(vii)_
Article 5.6 of the SPS Agreement, as the EU's
measure is "more trade-restrictive than required";
(viii)_ Articles
6.1 and 6.2 of the SPS Agreement, as the EU fails
to adapt its import regime for South African citrus fruit to the
"phytosanitary characteristics of the area … to which the product is
destined" and has failed to "recognize the concepts of pest- or disease-free
areas";
(ix)_
Article 8 and Annex C of the SPS Agreement, to
the extent that the EU does not comply with its obligations regarding control,
inspection and approval procedures, including, but not limited to, completion
of procedures without undue delay, limitation of information requirements to
what is necessary and reasonable, and a lack of proper procedures to review
complaints concerning the operation of such procedures and to take corrective
action when a complaint is justified and imposition of fees on imported products
that are equitable in relation to any fees charged on like domestic products;
(x)_
Article XI:1 of the GATT 1994, as the EU's measure
constitutes a "restriction … on the importation" of citrus fruit from
South Africa;
(xi)_
Articles I:1 and III:4 of the GATT 1994, to the extent
that the EU discriminates between like products from different origins;
(xii)_
Article X:3(a) of the GATT 1994, as the EU fails to
apply it in a "uniform, impartial and reasonable manner".
These
consultations might give rise to other matters having legal implications that
are not expressly stated in this request but relate to other WTO obligations of
the EU. With a view to facilitating a wide-ranging exchange of views, South
Africa notes that, if such were to be the case, these matters would also be
covered by the scope of this request for consultations.
***
I look
forward to receiving your reply to this request. In order to ensure that the
consultations take place within the 30-day deadline specified in Article 4.3 of
the DSU, we propose that the consultations take place at the WTO in Geneva
between 6 and 8 May 2024, or earlier if required.
__________
[1] See Request for Consultations by South Africa, EU — Citrus Fruit (South Africa),
WT/DS613/1,
G/L/1430, G/SPS/GEN/2056, 29 July 2022.
[2] See, inter alia, Part A of Annex III of Commission
Implementing Regulation (EU) 2019/2072 of 28 November 2019, as well as
Commission Delegated Regulation (EU) 2019/1702 of 1 August 2019 read with
Regulation (EU) 2016/2031.
[3] The requirements at issue apply to
specified fruits defined in Article 2(2) of Commission
Implementing Regulation (EU) 2022/632 of 13 April 2022. They are Citrus
L., Fortunella Swingle, Poncirus Raf., and their hybrids, other
than fruits of Citrus aurantium
L. and Citrus latifolia Tanaka.
[4] For specified fruits, other than fruits destined exclusively for
industrial processing, see requirements listed in Chapter II, Articles 3 to 5,
and Annex III of Commission Implementing Regulation (EU) 2022/632 of 13 April
2022. For specified fruits destined exclusively for industrial processing, see requirements
listed in Chapter III, Articles 6 to 9, of Commission Implementing Regulation
(EU) 2022/632 of 13 April 2022, and Article 49 of Regulation (EU) 2017/625.