Application of SPS measures under WTO law and Russian practice

1. Application of SPS measures under WTO law and Russian practice Lukasz Gruszczynski, PhD Institute of Legal Studies Polish Academy of Sciences International Annual WTO Forum at the premises of Kaliningrad State Technical University, 20 - 22 March 2014

2. Aim and plan • Aim: to analyze the Russian practice in the area of sanitary and phytosanitary (SPS) safety and to assess it against the standards of WTO law • Plan of the presentation: • SPS Agreement: someintroductory remarks • use of SPS measures by the Russian Federation: • before the accession to the WTO • after the accession to the WTO • some tentative conclusions

3. WTO and SPS Agreement (I) • SPS Agreement: • one of the WTO agreements regulating introduction and maintenance of SPS measures • aim: to limit the negative impact of national SPS regulations on international trade • Basic obligations: • requirement to base national measures on international standards [Codex Alimentarius, World Organization for Animal Health, International Plant Protection Convention] • deviation possible but subject to scientific justification in the form of risk assessment [no other reason possible] • science devised as a criterion (proxy), which allows to distinguish between permissible and prohibited measures

4. WTO and SPS Agreement (II) • right of Members to act even if scientific evidence is insufficient to perform adequate risk assessment: • a Member can adopt a provisional measure • a measure needs to be based on pertinent information • a Member needs to seek to obtain additional information • and revise a measure in reasonable period of time • risk management obligations: • right of Members to establish any level of protection they consider appropriate • requirement of necessity (measures need to be proportional) • requirement of quasi-consistency (but justification for different treatment of comparable risks is possible) (Art. 5.5) • requirement of least-trade-restrictive alternative (Art. 5.6) • requirement to apply the concept of regionalization (Art. 6)

5. WTO and SPS Agreement (III) • requirement to to use concept of equivalency (Art. 4) • prohibition of discrimination (between different Members and with regard to its own territory) (Art. 2.3) • procedural obligations: • prior publication of national SPS measures, • special notification procedure via the WTO Secretariat • vacatiolegis (except for emergency situations) • SPS Committee as a platform for a discussion

6. Russian SPS practice before the accession (I) • SPS measures were one of the important areas in the Russian negotiations over its membership in the WTO: • many SPS measures considered by trade partners as inconsistent with the SPS Agreement and international standards • SPS measures more stringent than international standards without scientific justification or risk assessments done in conformity with international standards • SPS measures applied in an arbitrary and non-transparent manner • lack of the legal framework to implement key obligations of the SPS Agreement (eg. those on equivalence, non-discrimination, risk assessments, and application of some international standards) • Many of those concerns were addressed by Russian authorities (e.g. broader recognition of equivalence, reliance on international standards, etc.)

7. Russian SPS practice before the accession (II) • Other problems: while in many cases the main objective of SPS measures was protection of the domestic market against infections (e.g.): • bans on imports of poultry from various countries linked with bird flu (2007), • ban on pork from Mexico and several US states in relation with swine flu (2009) sometimes SPS bans were used as a tool of Russia’s foreign policy: • means of political retaliation (e.g. various bans on Georgian and Moldavian agriculture products) • preventive means against countries that conduct policy which is considered to be contrary to the Russian interests (e.g. various bans on Polish agriculture products) • means for strengthening its negotiation position in relations with other countries/blocs (e.g. various bans on EU agriculture products)

8. Russian SPS practice before the accession (III) • 2005: a ban on imports of meat (pork and beef) products from Poland: • formal reason: poor standards in re-export certification that allegedly saw Latin American buffalo meat sold as European beef in Russian stores, meet ban withdrew only in 2007 • political considerations that played a role: • Russia's negative position on Poland's foreign policy (e.g. Polish foreign policy towards Belarus and Ukraine (2004/2005: orange revolution) • disapproval of Poland's objectives in energy policy (its opposition to the construction of the Nord Stream gas pipeline and willingness to diversify gas supplies to Poland)

9. Russian SPS practice before the accession (IV) • 2006: a ban on imports of wine (lifted only in 2013), plant-derived products and mineral waters from Georgia: • formal reason: presence of heavy metals and pesticides in wine + falsified products sold as wine; failure to meet water purity standards • political considerations that played a role: • retaliation for pursuing “anti-Russian” policy, and strengthening co-operation with the West in the political, economic and security areas • sanctions for blocking Russian membership in the WTO • none of those products were banned in any other country

10. Russian SPS practice after the accession (I) • 2013: a ban on imports of diary products from Lithuania: • formal reason:  detection of substances dangerous to health in diary products • political considerations that played a role: • Lithuanian foreign policy supporting the EU's Eastern Partnership programme, which hopes to forge closer ties between former Soviet republics and the EU • Lithuania held at that time the EU presidency and it was an organizer of the Vilnius Summit where number of countries were supposed to sign co-operation agreements with the EU

11. Russian SPS practice after the accession (II) • 2014: a ban on imports of pig meat products from the EU: • formal reason:  detection of several cases of African swine fever in Lithuania and Poland (wild boars), • number of other countries introduced similar bans on Polish and Lithuanian pig meat products (e.g. China) • political considerations that played a role: • Polish and Lithuanian (or more generally the EU) engagement in Ukraine • EU is currently considering a formal complaint in the WTO, political negotiations run in parallel • Other cases: embargo on selected confectionary products from Ukraine (2013), embargo on Moldavian wines and agricultural products (2013)

12. Some tentative conclusions • Despite its accession to the WTO, Russia continues to use SPS restrictions as means of its foreign policy • While other countries frequently impose SPS restrictions in order to protect local producers the use of SPS measures as a tool of foreign policy is very rare • Those measures are tend to be disproportionate and of selective character, but at the same time they also relate to real SPS risks (e.g. African swine fever, safety of Georgian wines) • Such an approach is (or may be) inconsistent with various obligations of WTO law; although it may be possible to justify them under science-based provisions they may fail necessity (Art. 2.2 SPS) and consistency requirements (Art. 5.5 SPS) • The approach seems to lack any strategic goal and does not translate into long-term benefits for Russia (even in terms of its foreign policy) • undermines trusts between trading partners • presses affected countries to diversify export • does not affect the behaviour of targeted countries