REPLIES BY AUSTRALIA TO QUESTIONS POSED BY THE PANEL AND THE PARTIES

QUESTIONS POSED BY THE PANEL

For all third parties:

With reference to pp. 27-36 of the EC first written submission, could the third parties please indicate whether the European Communities’ description of their own regulatory systems is accurate?

From Australia's perspective, the accuracy of the European Communities’ description of the Australian regulatory system does not appear to be of any relevance to the resolution of this dispute. Australia therefore does not wish to provide any response addressing the accuracy of this description.

For all complaining parties

With reference to Article 5.7 of the SPS Agreement, do the complaining parties agree with the European Communities that:

In Australia's view, Article 5.7 operates as a qualified exemption from the obligation under Article 5.1. Article 5.7 is not, however, an exception (affirmative defence) and the burden of proof in establishing a claim of inconsistency with Article 5.7 rests with the complaining party.

Qualified exemption

In Japan – Agricultural Products II, the Appellate Body explained that:

In light of the nexus between Articles 2.2 and 5.1, Australia considers that the same reasoning can be applied to the relationship between Article 5.1 and Article 5.7: Article 5.7 operates as a qualified exemption from the obligation under Article 5.1 requiring Members to ensure their SPS measures are based on an assessment of risk.