Russian Federation –
Measures on the Importation of Live Pigs,
Pork and Other Pig Products from the European Union
NOTIFICATION OF AN APPEAL BY the russian federation
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 communication, dated 23 September
2016, from the Delegation of the Russian Federation, is being circulated
to Members.
_______________
1. Pursuant to
Article 16.4 and Article 17.1 of the DSU, the
Russian Federation hereby notifies to the Dispute Settlement Body its decision
to appeal to the Appellate Body certain issues of law covered in the Panel
Report and certain legal interpretations developed by the Panel in the dispute Russian Federation – Measures on
the importation of live pigs, pork and other pig products from the European
Union). Pursuant to Rule 20(1) of the Working
Procedures for Appellate Review, the Russian Federation simultaneously
files this Notice of Appeal with the Appellate Body Secretariat.
2. The Russian Federation is restricting its appeal to those errors
that it believes constitute serious errors of law and legal interpretation
that need to be corrected. Non-appeal of an issue does not signify agreement
therewith.
3.
For the reasons
to be further elaborated in its submissions to the Appellate Body, the Russian
Federation appeals, and requests the Appellate Body to modify or reverse, certain issues of
law and legal interpretations developed by the Panel in this dispute.[1]
I. THE PANEL'S FINDINGS REGARDING THE ALLEGED
EU-WIDE BAN
4.
The Russian
Federation seeks review by the Appellate Body of the Panel's findings that the
so-called EU-wide ban is a measure that can be attributed to the Russian
Federation.[2] The Russian
Federation also appeals the underlying findings of the Panel that led to this
erroneous finding: the Panel's failure to differentiate between national
Russian Federation SPS measures and the terms of the bilateral EU-Russia
veterinary certificates[3],
the Panel's failure to give full legal effect to the Russian Federation's
Accession Protocol,[4]
and, alternatively, the Panel's failure to recognize the sequencing inherent in
the bilateral veterinary certificates. As a result, the Panel erred, under
Articles 1.1, 2.2, 2.3,
3.1, 5.1, 5.2, 5.3, 5.6, 5.7, 6.1, 6.3, 8 and Annex C of the SPS Agreement, and
Article 3.3 DSU, in concluding that the Russian
Federation's so-called EU-wide ban is conduct attributable to the Russian Federation
that is inconsistent with the SPS Agreement.[5] These
findings are in error, and the Russian Federation respectfully requests that
the Appellate Body reverse them.
II. The Panel's Findings on Article
6 of the SPS Agreement
5.
The Russian
Federation seeks review by the Appellate Body of the Panel's failure to
interpret Article 6.3 of the SPS Agreement to require panels to take into
account science-based and technical evidence relied upon by the importing
Member, in accordance with the importing Member's appropriate level of
protection.[6]
The Russian Federation also appeals the Panel's conclusions – based on this
interpretative error – that the European Union has provided the necessary
evidence to objectively demonstrate to the Russian Federation that areas within
the European Union are and are likely to remain ASF-free under Article 6.3 of
the SPS Agreement.[7]
Similarly, the Panel incorrectly found that the European Union had provided the
necessary evidence to objectively demonstrate to the Russian Federation that
there are areas in Lithuania, Poland, Latvia and Estonia that are ASF-free
pursuant to Article 6.3[8],
and that the European Union had provided the necessary evidence to objectively
demonstrate to the Russian Federation that there are areas in Lithuania, Poland
and Estonia that are likely to remain ASF-free pursuant to Article 6.3.[9]
These findings are in error and are based on the Panel's erroneous findings of
law and legal interpretations of Article 6.3. The Russian Federation
respectfully requests that the Appellate Body reverse the Panel's
findings.
6. The Russian Federation also seeks review of the Panel's legal interpretation of
Article 6.3 of the SPS Agreement as not requiring a reasonable period of time
for exporting Members to collect the necessary evidence, on the one hand, and
for importing Members to review the necessary evidence, on the other hand.[10]
As a consequence of the Panel's erroneous interpretation of Article 6.3 as
not requiring the production, translation and review of the necessary evidence
over a "reasonable period of time", the Panel erroneously found in
paragraphs 7.963 and 7.1003 that the European Union had provided the necessary
evidence to objectively demonstrate to the Russian Federation that parts of
Estonia are and are likely to remain disease-free based on a three-day window
from the first African Swine Fever outbreak in Estonia. Thus, the Russian
Federation requests that the Appellate Body to reverse the Panel's erroneous
legal interpretation and its conclusion with respect to Estonia.
7.
The Russian
Federation further seeks review of the Panel's interpretation of Article 6.1
and its relationship to Article 6.3 of the SPS Agreement.[11]
The Panel found that in situations involving a request by an exporting Member
for zone recognition pursuant to Article 6.3, a finding of a violation of
Article 6.1 regarding conditions in the exporting Member
can still be found even absent a finding that the exporting country provided
the necessary evidence to objectively demonstrate that areas in its territory
are and are likely to remain disease-free under Article 6.3. Based on this
erroneous legal interpretation, the Panel found that while the European Union
had failed to provide the necessary evidence objectively demonstrating that
parts of Latvia are likely to remain ASF‑free, the Russian Federation
nevertheless violated Article 6.1, in part, because it failed to adapt its
measures to the SPS characteristics in Latvia.[12]
The Russian Federation requests the Appellate Body to reverse the Panel's erroneous
legal interpretation and its erroneous conclusion with respect to Latvia under
Article 6.1 of the SPS Agreement.[13]
__________
[1] Pursuant to Rule 20(2)(d)(iii) of the Working Procedures for
Appellate Review this Notice of Appeal includes an indicative list of the
paragraphs of the Panel Report containing the alleged errors, without prejudice
to the ability of the Russian Federation to refer to other paragraphs of the
Panel Report in the context of its appeal.
[2] See, e.g., Panel Report, paras. 7.74, 7.76, 7.77, 7.78, 7.79, 7.80,
7.81, 7.82, 7.83, and 7.84.
[3] See, e.g., Panel Report, paras. 7.76, 7.77, 7.78, 7.80, 7.81, 7.82,
7.83 and 7.84.
[4] See, e.g., Panel Report, paras. 7.108, 7.109, 7.110, 7.111, 7.112,
7.114, 7.115, 7.116.
[5] See, e.g., Panel Report, paras. 7.216- 7.220, 7.235, 7.237, 7.484,
7.494, 7.571, 7.591, 7.707, 7.714, 7.719, 7.720, 7.783, 7.834, and 7.846.
[6] See, e.g., Panel Report, paras. 7.384, 7.389, 7.391-6, 7.399,
7.404, 7.406, 7.412, 7.413, 7.414, 7.416, 7.454, 7.930, 7.932, 7.933, 7.938,
7.939, 7.940, 7.969, 7.976, 7.978, 7.985, 7.987, 7.996, 7.1003, and 7.1004.
[7] See, e.g., Panel Report, paras. 7.449, 7.455 and 7.456.
[8] See, e.g., Panel Report, para. 7.963.
[9] See, e.g., Panel Report, paras. 7.976, 7.985, 7.1001, 7.1003, and 7.1004
(second and third sentences).
[10] See, e.g., Panel Report, paras. 7.384, 7.393, 7.394, 7.395, 7.396,
7.399, 7.404, 7.406, 7.412, 7.413, 7.414, 7.416, 7.454, 7.930, 7.932, 7.933,
7.938, 7.939, 7.940, 7.969, 7.978, 7.987, and 7.996.
[11] See, e.g., Panel Report, paras. 7.365, 7.1011 (second sentence),
7.1020, 7.1027, 7.1028.
[12] See, e.g., Panel Report, paras. 7.995, and 7.1028.
[13] To the extent that the Appellate Body reverses the Panel's findings
under Article 6.3 with respect to Lithuania, Poland, Estonia and the EU-wide
ban in accordance with the argumentation set out in paras. 93-194 above, the
Russian Federation also request the Appellate Body to reverse the Panel's
findings that the import restrictions on Lithuania, Poland and Estonia and the
alleged EU-wide ban are inconsistent with Article 6.1 of the SPS Agreement.
See, e.g., paras. 7.484, 7.1020, 7.1028.