Skip to Content

Measures Affecting the Importation of Apples

Key Facts
Short Title: Japan — Apples
Respondent: Japan
Third Parties: Brazil; China; Chinese Taipei; European Communities; Australia; New Zealand;
Complaintant(s): United States;
Dispute Number: DS245
Link to Dispute Site: http://www.wto.org/english/tratop_e/dispu_e/cases_e/ds245_e.htm
Dispute Subject(s): Agricultural Products; Apples;
Dispute Status: Concluded
Complaint by the United States.

On 1 March 2002, the United States requested consultations with Japan regarding restrictions allegedly imposed by Japan on imports of apples from the United States.

The United States' complaint arose from the maintenance by Japan of quarantine restrictions on apples imported into Japan, which restrictions were said to be necessary to protect against introduction of fire blight. Among the measures the United States complained of were the prohibition of imported apples from orchards in which any fire blight was detected, the requirement that export orchards be inspected three times yearly for the presence of fire blight and the disqualification of any orchard from exporting to Japan should fire blight be detected within a 500 meter buffer zone surrounding such orchard.

The United States claimed that these measures might be inconsistent with the obligations of Japan under:

* Article XI of GATT 1994,

* Articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.6, 6.1, 6.2 and 7 and Annex B of the SPS Agreement, and

* Article 14 of the Agreement on Agriculture.

On 7 May 2002, the United States requested the establishment of a panel. At its meeting on 22 May 2002, the DSB deferred the establishment of a panel. Further to a second request to by the United States, at its meeting on 3 June 2002, the DSB established a panel. Australia, Brazil and the EC reserved their third-party rights. On 10 June 2002, New Zealand reserved its third party rights. On 12 June 2002, Chinese Taipei reserved its third party rights.

On 9 July 2002, the US requested the Director-General to compose the panel. On 17 July 2002, the panel was composed. On 16 January 2003, the Chairman of the Panel informed the DSB that the Panel could not complete its work within 6 months from its composition. The Panel expected to issue its final report to the parties by the end of May 2003.

The Panel circulated its Report to Members on 15 July 2003. The Panel found that Japan's phytosanitary measure imposed on imports of apples from the United States was contrary to Article 2.2 of the SPS Agreement and was not justified under Article 5.7 of the SPS Agreement and that Japan's 1999 Pest Risk Assessment did not meet the requirements of Article 5.1 of the SPS Agreement.

On 28 August 2003, Japan notified 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.

On 23 October 2003, the Chairman of the Appellate Body informed the DSB that the Appellate Body would not be able to circulate its Report within 60 days due to the time required for completion and translation of the Report and that it estimated that the Appellate Body Report in this appeal would be circulated to WTO Members no later than 26 November 2003.

On 26 November 2003, the report of the Appellate Body was circulated. The Appellate Body rejected all four of Japan's claims on appeal. The Appellate Body upheld the Panel's findings that Japan's phytosanitary measure at issue was inconsistent with Japan's obligations under Articles 2.2, 5.7, and 5.1 of the SPS Agreement. The Appellate Body also found that the Panel properly discharged its duties under Article 11 of the DSU in the Panel's assessment of the facts of the case. The US sole claim on appeal challenged the "authority" of the Panel to make findings and draw conclusions with respect to apples other than "mature, symptomless" apple fruit. The Appellate Body rejected this claim, finding that the Panel did have the "authority" to make rulings covering all apple fruit that could possibly be exported from the United States to Japan, including apples other than "mature, symptomless" apples.

At its meeting on 10 December 2003, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report.

Appellate Body and Panel Compliance Reports (Article 21.5) Adopted

On 30 June 2004, Japan and the United States sent to the DSB the confirmed procedures between the parties under Articles 21 and 22 of the DSU.

Considering that Japan had failed to implement the DSB's recommendations and rulings before the expiration of the reasonable period of time, on 19 July 2004 the United States requested the DSB of the establishment of a panel under Article 21.5 of the DSU.

The United States considers that Japan's phytosanitary measures on imported US apples are inconsistent with its obligations under the SPS Agreement, the GATT 1994, and the Agreement on Agriculture. The provisions of these agreements with which Japan's measures appear to be inconsistent include:

* Articles 2.2, 2.3, 5.1, 5.2, 5.3, 5.5, 5.6, 6.1 and 6.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures;

* Article XI of the General Agreement on Tariffs and Trade 1994; and

* Article 4.2 of the Agreement on Agriculture.

At its meeting on 30 July 2004 the DSB decided to refer the matter raised by the United States to the original panel. Australia, Brazil, China, the European Communities, New Zealand and Chinese Taipei reserved their third party rights.

On 29 October 2004, the Panel under DSU Article 21.5 informed the DSB that due in particular to the need to consult scientific experts the Panel was not able to issue its report within 90 days, and that the Panel expected to circulate its final report to Members during the second half of the month of May 2005.

On 23 June 2005, the Article 21.5 Panel circulated its Report to Members. The Panel report found that Japan's phytosanitary measure imposed on imports of apples from the United States is contrary to Articles 2.2 and 5.1 of the SPS Agreement and if the United States only exports mature, symptomless apples, the alternative measure proposed by the United States meets the requirement of Article 5.6 of the SPS Agreement. At the DSB meeting on 20 July 2005, the Panel Report was adopted.

Implementation Status of Adopted Reports

At the DSB meeting on 9 January 2004, Japan indicated that it intended to comply with the recommendations and rulings of the DSB in a manner that respected its WTO obligations under the SPS Agreement. In that connection, Japan also stated that it would need a reasonable period of time to implement the said recommendations and rulings and was willing to discuss this matter with the United States in accordance with Article 21.3(b) of the DSU. On 10 February 2004, Japan and the United States informed the DSB that they had agreed that the reasonable period of time shall be six months and 20 days, that is from 10 December 2003 to 30 June 2004.

On 30 June 2004, Japan and the United States sent to the DSB the confirmed procedures between the parties under Articles 21 and 22 of the DSU.

Considering that Japan had failed to implement the DSB's recommendations and rulings before the expiration of the reasonable period of time, on 19 July 2004 the United States requested the DSB to establish a panel under Article 21.5 of the DSU and to authorize the suspension of concessions or other obligations with respect to Japan under Article 22.2 of the DSU. In respect of the latter, on 29 July 2004 Japan requested this matter to be referred to arbitration in accordance with Article 22.6 of the DSU and the foregoing confirmed procedures. After the matter was referred to arbitration (which would be carried out by the original panel) at the meeting of the DSB on 30 July 2004, both parties jointly requested the Arbitrator to suspend the arbitration proceeding on 4 August 2004 until adoption by the DSB of its recommendations and rulings of the former proceeding, i.e., the panel proceeding under Article 21.5 of the DSU.

In respect of the panel proceeding under Article 21.5 of the DSU, at its meeting on 30 July 2004 the DSB decided to refer the matter raised by the United States to the original panel. Australia, Brazil, China, the European Communities, New Zealand and Chinese Taipei reserved their third party rights.

For details of the Article 21.5 panel proceedings, see above.

Mutually Agreed Solutions notified under Article 3.6 of the DSU

On 30 August 2005, the parties to the dispute jointly informed the DSB that they had reached a mutually agreed solution regarding the matters raised by the United States in this dispute.

Panel Proceedings
Brief DateBrief Description
01/31/2003U.S. Comments on Japan's Answers to Additional Questions from the Panel (pdf)
01/28/2003U.S. Answers to Additional Questions from the Panel (pdf)
01/23/2003Executive Summary of the U.S. Oral Presentation at the Second Panel Meeting (pdf)
01/16/2003Closing Statement of the United States at the Second Panel Meeting (pdf)
01/16/2003Opening Statement of the United States at the Second Panel Meeting (pdf)
11/20/2002Executive Summary of the Second Written Submission of the United States (pdf)
11/13/2002U.S. Answers to Questions from Japan (pdf)
11/13/2002U.S. Answers to Questions from the Panel (pdf)
11/13/2002Second Written Submission of the United States (pdf)
11/01/2002U.S. Response to Certain Arguments by Third Parties (pdf)
10/28/2002Executive Summary of the U.S. Oral Presentation at the First Panel Meeting (pdf)
10/22/2002Closing Statement of the United States at the First Panel Meeting (pdf)
10/21/2002Opening Statement of the United States at the First Panel Meeting
10/16/2002U.S. Reply to the Request by Japan for Preliminary Rulings (pdf)
09/11/2002Executive Summary of the First Written Submission of the United States (pdf)
09/04/2002First Written Submission of the United States Part Three (pdf)
09/04/2002First Written Submission of the United States Part Two (pdf)
09/04/2002First Written Submission of the United States Part One (pdf)

Appeal Proceedings
Brief DateBrief Description
10/13/2003Statement of the United States at the Oral Hearing of the Appellate Body (pdf)
09/22/2003Appellee's Submission of the United States (pdf)
09/12/2003Other Appellant's Submission of the United States (pdf)

Recourse by the United States to Article 21.5 of the DSU
Brief DateBrief Description
02/01/2005Comments of the United States on Japan's Answers to Additional Questions by the Panel (pdf)
01/25/2005Answers of the United States to Additional Questions from the Panel (pdf)
01/13/2005Closing Statement of the United States at the Second Panel Meeting (pdf)
01/13/2005U.S. Comments on the Meeting with Experts (pdf)
11/23/2004Comments of the United States on the Draft Questions to Experts (pdf)
11/15/2004Executive Summary of U.S. Submissions and Statements to Date (pdf)
11/11/2004Answers of the United States to Questions from Japan (pdf)
11/11/2004Answers of the United States to Questions from the Panel (pdf)
10/28/2004Closting Statement of the United States at the First Panel Meeting (pdf)
10/28/2004Opening Statement of the United States at the First Panel Meeting (pdf)
09/27/2004Second Written Submission of the United States (pdf)
09/27/2004Preliminary Ruling Request of the United States (pdf)
08/20/2004First Written Submission of the United States (pdf)