Sanitary and Phytosanitary
Information Management System
Specific Trade Concerns
Other SPS Documents
Enquiry Points/Notification Authorities
Compare notifications between two time periods
Definitions of groups
STC Number - 185
Restrictions due to avian influenza
European Union; United States of America
Australia; Canada; China
First date raised:
, paras. 18-20
Dates subsequently raised:
June 2004 (
, paras. 42-43)
October 2004 (
, paras. 59-60)
June 2007 (
, paras. 21-23 )
October 2007 (
, paras. 29-32 )
April 2008 (
, paras. 33-38)
June 2008 (
, paras. 31-35)
October 2008 (
, paras. 29-34 )
February 2009 (
, paras. 17-20)
June 2009 (
, paras. 43-46)
October 2009 (
, paras. 40-43)
March 2010 (
, paras. 37-40)
June 2010 (
, paras. 39-41 )
October 2010 (
, paras. 25-28)
March 2011 (
, paras. 37-40)
June 2011 (
, paras. 64-68)
October 2011 (
, paras 81-93,
, para. 90 )
Number of times subsequently raised:
and Add.4, WT/DS430/R and WT/DS430/R/Add.1,WT/DS430/AB/R
01 Live animals; 02 Meat and edible meat offal; 0207 Meat and edible offal, of the poultry of heading 01.05, fresh, chilled or frozen.; 010631 -- Birds of prey
Primary subject keyword:
Animal health; Human health; International Standards / Harmonization; Zoonoses
DSU consultations requested on 06/03/2012 (WT/DS430/1). Panel established on 25/06/2012. Appellate Body report (WT/DS430/AB/R) and Panel report (WT/DS430/R and Add.1) adopted on 19/06/2015. Complaince panel established on 22 May 2017. Matter to suspend concessions referredto arbitration under 22.6 of DSU on 19 July 2016. Compliance panel and arbitration proceedings ongoing.
Date reported as resolved:
Extracts from SPS Committee meeting summary reports
In March 2004, the European Communities raised concerns on measures applied by India on 3 March 2004 on imports of live birds, fresh poultry meat and fresh poultry meat products due to avian influenza. Contrary to Annex B of the SPS Agreement, these measures had not been notified. In addition, India's restriction on EC products was disproportionate to the health risks associated with these imports since the European Communities was free of highly pathogenic avian influenza. The European Communities reminded India of existing OIE standards on avian influenza and requested that India lift the restrictions on EC products.
The United States stated that it shared the concerns of the European Communities.
India explained that restrictions on poultry imports were temporary measures to address the emerging threat of introduction of highly pathogenic avian influenza. The measures were intended to protect farmers for whom poultry production was an essential source of income. Delays in the reporting of outbreaks increased the risk of the virus spreading into other countries. In addition, poultry infected by the virus did not always exhibit clinical signs of the disease. Given the structure of the poultry industry in India, it would be impossible to control the spread of the disease once introduced. India was taking all measures necessary to gather information on efforts to contain the disease globally and welcomed information from exporting Members who were free of the disease.
In June 2004, the European Communities stated that India continued to apply import bans on a range of poultry products, including live birds, fresh meat and fresh meat products from several countries allegedly in response to highly pathogenic avian influenza (HPAI), since February 2004. These blanket import bans were disproportionate to the risk and should be confined to imports from regions affected by the disease in accordance with OIE recommendations. The European Communities was officially free of this disease, according to the OIE criteria, and had implemented safeguard measures to protect this sanitary status. The European Communities asked that India review the current ban and lift all restrictions on poultry products from the European Communities.
India responded that measures prohibiting poultry and poultry products had been implemented as temporary measures. New outbreaks of HPAI in WTO Members, but not within the territories of the European Communities, had been reported as recently as 4 June 2004. Since poultry production in India was typically a family-run business, Indian authorities were particularly concerned about potential human development of the disease.
In October 2004, the European Communities expressed concerns that India continued to impose a ban on some live animals and a range of products of animal origin due to the risk of entry of HPAI into India. India had issued two notifications, on 7 July and on 6 August, informing Members of the relaxation of the ban for a range of products. However, the ban was disproportionate to the risk and there was no scientific basis for some of the measures imposed by India. The ban should be confined to regions affected by the disease following OIE guidelines and recommendations. The European Communities recalled that it was free of HPAI and maintained this sanitary status. India was requested to review its ban and bring its measures into conformity with the SPS Agreement.
India reiterated that the ban was a temporary measure which was enforced due to the outbreak of avian influenza throughout the world. The prevalence of the family-based poultry industry and the significant numbers involved in the industry would make it impossible to control the disease if it spread to India. The situation had been under constant review since the imposition of the ban in February 2004. The ban on imports of poultry with vaccination and specific pathogen free eggs was lifted in July 2004. A subsequent review by an expert group resulted in the continuation of the ban on imports of certain products such as live and raw poultry and pig meat. Processed products from HPAI infected countries were allowed into India, however, and the situation continued to be monitored.
In June 2007, the United States noted that India was banning poultry, swine and other products in response to the detection of low pathogenic avian influenza (AI) in wild birds in some parts of the United States. These restrictions far exceeded the standards developed by the OIE for the control of AI. India failed to apply the concept of regionalization to the United States. India applied its ban against US products although no incident of HPAI had occurred in the United States; applied its ban to products that had been treated or processed in such a manner that the AI virus was killed; and applied its ban to species and products from animals that were not known to transmit the virus. Although India had recently notified a change to its measures to allow the entry of dry processed pet food, it continued to prohibit other heat-treated pet foods that posed no animal health risk.
The European Communities observed that they had similar concerns regarding India's measures. Although they had been seeking to resolve the matter bilaterally, problems continued to appear and reappear. All Members should apply the international standards, to ensure that the measures applied were proportionate to the risks. India's measure was applied even to products that had never been known to transmit AI, including pork meat.
India noted that high or low pathogenic strains of AI had been reported in more than 60 countries, and his authorities were concerned that the virus was spreading. The virus had important human health implications, given its high fatality rate. India had experienced an outbreak of HPAI in 2006 which had been successfully contained, and the country was now free of the disease. India was trying to safeguard animal and human health in its territory, and protect its family-run poultry industry. It therefore banned imports of poultry from any country which had experienced an outbreak of AI, whether highly pathogenic or low pathogenic. The United States had reported an outbreak of low pathogenic AI. Countries free from AI could export livestock to India, and pathogen-free eggs for vaccine production were permitted from any country, regardless of its AI status. Because many wild birds visited India, this was a vector of concern. With regard to pet food, India had revised its health protocol notified in June 2007, and would take into account the comments made on this matter.
OIE clarified the recommendations of the OIE and how they should be put in practice. The listing of diseases such as HPAI and low pathogenic notifiable avian influenza (LPNAI) was first and foremost for disease reporting purposes and related to the question of transparency. Findings of AI in wild birds and of LPNAI should not lead to import bans. There needed to be a distinction drawn between reporting and the imposition of measures. OIE reiterated that there was no scientific basis for restrictions on pigs and pig products in relation to AI, whether it be high or low pathogenic strains, and this point was clear in the OIE terrestrial code. OIE was concerned that the imposition of measures that were not scientifically based worsened the risks for spread of disease because countries were discouraged from proper reporting if they believed that the reporting would lead to unjustifiable measures. It was of utmost importance that countries report their diseases.
In March 2008, the European Communities indicated that India continued to ban certain EC animal products due to AI. Although India had earlier this year relaxed the ban for some products, it continued to ban many commodities. India imposed the ban in response to both high and low pathogenic strains of AI. The OIE, however, did not recommend trade bans if AI was present only in wild birds, or if low pathogenic strains were found. The obligation to notify cases of low pathogenic AI to the OIE should not be misused as a reason to impose trade restrictions, as the OIE had previously clarified in this Committee. Furthermore, heat-treated products could be safely traded regardless of the AI status of the exporting country. The European Communities considered also that India's ban on pig meat and pork products based on AI concerns was disproportionate to the risk. Although the European Communities had requested information regarding what needed to be done to regain free status, India had not provided any response. As indicated previously, the European Communities was of the view that India's measures were disproportionate to the risks and for some products were not based on scientific evidence. In addition, HPAI had been found in India, and the European Communities questioned whether Indian domestic products would be subject to the same treatment as imported goods.
The United States shared the concern that India's measures were introduced and maintained without sufficient scientific basis or a risk assessment. The measures were unjustifiably restrictive and too broad in geographic and commodity application. Bilateral exchanges had allowed progress on some areas, but not regarding the AI measures. Despite requests, the United States had not yet received copies of India's risk assessment. Furthermore, these emergency import prohibitions had been extended again (G/SPS/N/IND/46/Add.5), after having been in place for almost two years. The United States urged India to lift AI measures that were not based on science, and in particular to distinguish between high and low pathogenic strains, recognize disease-free zones, not apply measures to swine and pork products, and to recognize measures taken to inactivate the virus.
Australia shared the concerns of the European Communities and the United States, and urged India to base its measures on sound science and OIE standards.
Mali reported that since his country did not know how to do a risk assessment with regard to AI, it had closed its borders to poultry imports from countries which had the disease.
India noted that AI continued to spread, and that it had serious human health implications with hundreds of persons already affected. India had previously had an outbreak, and despite its efforts to eradicate the disease, new outbreaks had occurred. India viewed low and high pathogenic strains of AI with equal concern, regardless of whether in poultry or wild birds, and was not permitting imports from affected countries. Low pathogenic AI presented a high potential risk, as the science showed that the virus was constantly evolving and there was a possibility of low pathogenic AI mutating into a highly pathogenic strain. With respect to the OIE guidelines, India had voted against the resolution in the last annual session which proposed that low pathogenic AI was not a concern for international trade. India was not the only country taking such measures, and Egypt had apparently imposed similar requirements. India had recently reviewed and modified its measures on pathogen free eggs, and pet food, and agreed to provide information to the European Communities shortly. The concerns raised by other Members would be communicated to technical experts in capital. India assured all Members that it would abide by its WTO obligations.
The European Communities clarified that in case of Egypt, the measures were applied to very different commodities. Although both countries had measures related to AI, these could not be easily compared.
In June 2008, the European Communities reported that India continued to apply a ban on the imports of poultry, swine, and their products, from areas that had reported outbreaks of either low- or high-pathogenic AI in wild bird populations only. In addition, India restricted the importation of products also from areas where low pathogenic AI had been found, disregarding the OIE standards which assured the complete elimination of risks and allowed products to be safely traded. The ban on imports of pigs and pig meat was not justified according to the OIE, nor had India provided scientific justification for the ban. India's restrictions were disproportionate and the European Communities requested India to review its measures without delay.
Canada supported the EC arguments, noting that according to the OIE, pigs did not represent a threat for transmitting AI. Furthermore, India should recognize the principle of regionalization when applying a ban based on AI. Canada requested that India follow the OIE's standards and remove the import restrictions currently in place.
The United States supported the concerns raised, observing that India's measure had been introduced and maintained without scientific evidence or risk assessment. India's argument that low pathogenic AI had the potential to mutate into the highly pathogenic form, and that virus re-assortment could occur in swine, had been addressed by the OIE. The United States had requested a copy of India's risk assessment that supported its ban, but this had not been provided.
China supported the concerns raised and requested India to revisit its measure in order to comply with OIE recommendations.
India clarified that it did not allow the importation of poultry and pork products, including processed meats, from areas where outbreaks of AI had been reported. India reiterated that it was equally concerned about low and highly pathogenic AI, as well as with AI found in wild birds only. A number of scientific studies had shown the possibility of low pathogenic forms of AI mutating into highly pathogenic strains. A report from FAO had also shown that mutation was feasible. An official US web site asserted that low pathogenic forms of AI had the potential to mutate into HPAI. India remained concerned that the low pathogenic viruses also posed risks to human health. Regarding pigs, scientific evidence showed that pigs could host the virus and were known to be a mixing vessel for some diseases, hence they could infect humans with AI. As new scientific evidence evolved, India had lifted its bans on some products, such as eggs and pet food. Further reviews would be done in the future. India took note of Members' requests for copies of the risk assessment and for the recognition of regionalization, and those concerns would be conveyed to experts in the capital.
In October 2008, the European Communities acknowledged India's efforts to remove its import restrictions on processed pig meat. However, India continued to apply a ban on live animals and on a wide range of products of animal origin. This ban had been based on the risk of entry into India of several diseases, in particular AI. These restrictions did not conform to the OIE standards. India was also invited to acknowledge that heat-treated meat and meat products could be safely traded regardless of the AI status of the exporting country. Moreover, India had not responded to the request for providing scientific justification and its risk assessment on pig meat and pig meat products.
The United States expressed concerns regarding India's extension of its emergency measures prohibiting a wide range of products because of AI. These measures were not based on scientific evidence or on risk assessment. The United States renewed the request to India to provide a copy of their AI risk assessment. Finally, India was requested to modify its measure to address the concerns expressed by several Members.
In response to the US request, India proposed that a technical discussion between India and other technical experts be held. The United States invited India to bring its technical experts to the next meeting of the SPS Committee and again requested a copy of India's risk assessment. India suggested that instead of waiting for the next meeting the experts could meet before then, perhaps through a video conference, which could allow a resolution before the next meeting. India reported that the import restriction of AI related products had been discussed in the OIE, in the SPS Committee, and in various bilateral meetings with countries including the European Communities and the United States. India had been reviewing the policy of AI and its trade implications every six months. This led to the removal of import restrictions on different processed pig products from AI-positive countries. India would continue to review its restrictions and keep only those which affected human and animal health. India suggested that the discussion should stay among experts.
The OIE stated that countries should notify the presence of AI in domestic and wild birds. However, notification of the early detection of AI in wild birds was requested for purposes of transparency and should not lead to trade restrictions. OIE urged OIE members to send their scientific evidence to OIE, to be considered when making necessary amendments to the standards established in the OIE codes.
In February 2009, the United States expressed disappointment that India continued to maintain its emergency measures prohibiting a wide range of products because of AI without scientific evidence or a risk assessment. Appropriate measures for AI did not include trade restrictions on swine or swine products, trade measures related to notifiable AI in wild birds, or prohibitions on heat-treated products. In addition, Members should distinguish between highly pathogenic and low pathogenic AI. The United States welcomed India's previous proposal for a technical level meeting to discuss the issue, and again urged India to present its risk assessment so that a technical discussion could be scheduled.
The European Communities welcomed the recent lifting by India of some AI-related restrictions, but supported the US concerns that the remaining restrictions were unjustified and went against the OIE Code, in particular the lack of distinction between outbreaks of highly pathogenic and low pathogenic AI.
India explained that since many countries reported AI, and because of the human health implications, it was natural that Members were extremely cautious to safeguard animal and human health. This was particularly true in India, since its poultry industry was largely family-run. Many Members had adopted AI measures, including import bans. India had banned imports of poultry and swine products from countries reporting both low and highly pathogenic AI, since one strain of the virus could mutate into the other. An FAO publication acknowledged that mutation to virulence had been demonstrated, and the USDA website also admitted this. At the OIE General Session, India had voted against the resolution stating that low pathogenic AI was not a trade concern. India believed that trade interests should not take precedence over human health concerns, but accepted that science was evolving and had provisions for reviewing its AI measures. As a result, trade restrictions on certain products from AI positive countries had been lifted. India had recently reviewed the restrictions on pig meat and found there was minimal risk, especially when processed. India had thus decided to lift restrictions on pig products and on processed poultry products. The reviews would continue. India had taken note of the US concerns, had had bilateral meetings with the United States and the European Communities, and would convey their concerns to the relevant authorities.
The OIE indicated that AI was a major challenge for trade in poultry products. The relevant standards were in place and the OIE did not receive many comments from OIE members; the standard seemed to be well accepted. Currently the OIE was looking at conditions for trade in pet food and various by-products such as feather meal. Members should review the AI standards and raise any concerns at the OIE. The OIE clarified that there were a number of publications on AI, some by the OIE, some by FAO, some joint. For international trade, the relevant standard was in the OIE Terrestrial Animal Health Code.
In June 2009, The European Communities appreciated the bilateral meetings with India but remained concerned that India's measures were not consistent with OIE standards. Despite having raised the concern previously, India continued to make no distinction between low and high pathogenic AI, and had still not shared its scientific justification for the measures. The European Communities regretted that India did not adhere to the principle of regionalization, and furthermore that India banned imports of live pigs citing AI fears but had no such ban on the domestic market. The European Communities called upon India to base its import requirements on the relevant international standards.
The United States shared the concern raised by the European Communities and noted that India prohibited the import of a large number of items, in disregard of the relevant OIE Chapter. The United States requested that the bans on swine be lifted and that scientific justification be provided for all measures. In addition, the United States requested India to provide a copy of its risk assessment for the measures relating to AI.
India stated that the ban on pork products was taken to prevent an outbreak of AI. The measures were based not only on OIE guidelines, but on relevant scientific literature. Technical experts re-evaluated the scientific information every six months, and now imports were banned only from those countries reporting H5 and H7 strains of low pathogenic AI. India was concerned that the low pathogenic virus could mutate into the high pathogenic virus, which had a greater impact on animal and human health. Trade concerns should not interfere with the protection of human and animal health. All restrictions regarding pork and poultry products except live pigs had been lifted from areas reporting AI, because the AI virus could mutate in the pigs, as both human and AI viruses had established stable virus lineages in pigs. India applied the same measures to domestic products as to imports. India thanked the European Communities for fruitful bilateral discussions on 22 June 2009, and expressed its commitment to dialogues with all interested Members.
OIE drew attention to the informal dispute resolution procedure of the OIE as a means to resolve technical differences relating to provisions of the Terrestrial Animal Health Code.
In October 2009, the European Communities recalled that India still failed to base its requirements on OIE standards, and still maintained a ban on live pigs, pig semen and products such as feathers for reasons of AI. Furthermore, India did not recognize the regionalization principle, applied strictly in the European Communities where affected zones were placed under strict biosecurity measures, and instead India required total country freedom from AI. Although India had announced unprocessed meat would no longer be blocked for reasons of AI, India's requirements stated that only heat-treated pig meat could be imported, a measure not in line with international standards. The European Communities requested India to provide scientific evidence justifying its strict measures; to bring its import requirements in line with international standards; and to recognize the regionalization principle as applied in the European Communities.
The United States stated that India's ban and AI import requirements were not in line with OIE standards. India continued to prohibit the import of pigs and of a wide range of avian species and avian products without a risk assessment that supported the measure. India had maintained an emergency measure in one form or another since 2002 and its emergency notifications since 2004 had essentially blocked all imports. Sufficient time had passed for India to complete an import risk assessment and to adopt OIE-consistent measures. The United States requested India to provide its risk assessment and to modify its measures to address the concerns expressed by a number of Members.
India stated that the notification issued on 28 August 2009 prohibited the import of poultry and poultry products and live pigs from countries reporting both highly pathogenic and low pathogenic AI. India's technical experts had observed that symptoms of highly pathogenic AI were noticeable and the infection could be controlled, but low pathogenic AI might pass unnoticed and the control of the infection could become difficult. Additionally, there was no data available confirming that low pathogenic AI could not mutate into highly pathogenic AI. Imports were currently allowed based on the AI status of the exporting country. The Indian authorities had commissioned a lab-based study of domestic pigs to confirm the chances of genetic re-assortment of the virus in live pigs that could produce new influenza viruses. As notified, India permitted the import of poultry products from countries reporting AI subject to a conformity assessment. Comments received from trading partners on this notification were under examination.
OIE stated that there were some differences at a scientific and technical level in relation to this matter, and reminded Members of the OIE's informal mechanism to resolve differences at a scientific and technical level.
In March 2010, the United States stated that India was alone among the world's leading trading partners in imposing severe import requirements related to AI, that were not in line with those established by the OIE. India continued to maintain emergency measures prohibiting a wide range of pig and avian products. Furthermore, India had not provided timely emergency notifications to the WTO Secretariat, as it had extended its AI emergency measures on 28 August 2009, but not yet notified it. The United States had for several years repeatedly requested a copy of India's risk assessment, but this was never provided.
The European Union supported the US concerns regarding India's ban on imports of a number of products and live animals that, according to the OIE, should not be restricted. The European Union highlighted the importance of the use of the SPS notification system by India. The European Union also repeatedly requested India's risk assessment for its AI measure, but had not obtained it. Moreover, India did not recognize the regionalization principle, as applied in the European Union whenever an outbreak of AI occurred.
OIE encouraged WTO Members to implement the OIE standards on AI, since they were based on science and had been democratically approved.
India reported that as notified, it imposed an import ban on live pigs, poultry and other poultry products from countries reporting either the H5 or H7 strains of AI. There was no import ban on live pigs, poultry or poultry products from countries reporting AI in wild birds, other than poultry. The ban was imposed on countries with both LPAI and HPAI, as the LPAI virus might mutate into HPAI virus. India conducted a detailed risk analysis for the importation of animal and animal products, by a committee of experts, based on the existing global situation of AI, available scientific literature and the OIE standards. The justification for imposing the ban on live pigs was due to the fact that pigs were known to act as mixing vessels for human, animal and other influenza viruses. The ban on pigs would be reviewed after the completion of some technical studies.
In June 2010, the European Union reiterated the concerns regarding India's restrictions due to AI and the lack of notification by India on the issue. India had announced via its website that it would review its import conditions related to AI every six months however, that information had not been notified to the WTO. The European Union recalled that on several occasions India had been requested to provide scientific justification for imposing import restrictions above the OIE standard on AI. During its May 2010 General Assembly, the OIE had confirmed that its AI standard was well supported by scientific evidence, and it had also been clarified that there was no risk related to trade in fresh meat with regard to low pathogenic AI. The European Union also requested India to recognize the regionalization principle of the SPS Agreement, which was strictly applied in the European Union when an outbreak of AI occurred. The European Union requested that India fulfil its transparency obligations, and either bring import requirements fully in line with international standards, or share the scientific evidence invoked to justify its measures.
The United States supported the concerns raised by the European Union, stating that India stood alone with respect to the scope of its AI -related bans, which were not in line with OIE standards. The United States expressed disappointment that these bans continued as emergency measures, thereby prohibiting the imports of live pigs and a wide range of avian species and avian products without a risk assessment. The United States noted that, on numerous occasions, India had not provided a timely notification of its AI-related import restrictions. For example the last notification was on 31 March 2009, extending the ban for six months. However, the ban continued to be applied despite the lack of a new notification. The United States and the European Union had repeatedly asked India to provide its risk assessments to support the imposition of import requirements beyond OIE recommendations. The United States urged India to provide its risk assessment and modify its measures to address the concerns repeatedly expressed by several Members.
India replied that the situation had remained unchanged although, based on changed conditions, India had allowed some restrictions to be temporarily lifted. The Indian Department of Animal Husbandry had reviewed its sanitary conditions and removed AI related restrictions for the import of pork products (raw and processed pork). India reported that presently there was no ban on the import of pork products (raw and processed pork) from AI positive countries. However, the import of live pigs continued to be prohibited from AI -positive countries. Furthermore, the import of processed poultry and poultry meat products were allowed from AI positive countries subject to conformity assessment for both LPAI and HPAI. India cited scientific evidence that LPAI had the potential to mutate into HPAI, particularly in wild aquatic birds.
In October 2010, the United States indicated that India continued to maintain the AI bans as emergency measures, and prohibited the import of live pigs and a wide range of avian species and products without providing a scientific justification for exceeding the international standards. Despite repeated requests, India had not provided its risk assessment until the October 2010 SPS Committee meeting. Moreover, India had failed repeatedly to notify its AI related import restrictions in a timely manner. In March 2010, India had announced a new extension of its emergency measures, and also that products from countries reporting any notifiable AI in domesticated or wild birds would be banned. Those new measures had not been notified to the WTO.
The European Union shared the US concerns about the emergency measures taken by India and the lack of transparency. India had failed to provide an opportunity for WTO Members to comment before measures were put in place. India had not made public the outcome of the last review of its import conditions on AI, although it had reported to the SPS Committee that this took place every six months. The European Union called on India to share its risk assessment or other scientific justification for its import measures, and to recognise the principle of regionalization as foreseen under the SPS Agreement.
India recalled that it had continuously explained the reasons for its measures, and changes to these. At the last Committee meeting, India had reported on the lifting of the ban on imports of pork products, although imports of live pigs were still prohibited from AI positive countries. Processed poultry and poultry meat products were allowed from AI positive countries subject to certain conformity assessment requirements, thereby facilitating trade while continuing to protect human and animal health. India remained concerned that LPAI had the potential to mutate into highly pathogenic strains. India noted that Article 10.4.1 of the OIE Terrestrial Animal Health Code prohibited trade in poultry and its products from LPAI-positive countries. India had provided its risk assessment on AI directly to the United States, and was willing to share it with other Members upon request.
OIE expressed an interest in receiving India's risk assessment. The OIE stressed that the OIE standards did not justify trade restrictions on the basis of reports of LPAI in wild birds. AI was widespread in wild birds and the OIE requested that this be notified so as to provide valuable data, but did not recommend any trade restrictions on this basis.
In March 2011, the European Union indicated that the risk assessment provided by India did not provide scientific basis to India's AI restrictions. The European Union asked the OIE whether India's risk assessment provided grounds for changes to the existing OIE standards. The European Union also urged India to recognize the principle of regionalization, and bring its import requirements in line with international standards.
The United States stated that it was still reviewing India's risk assessment on AI. The United States would raise its scientific concerns with India bilaterally and would keep the Committee informed of its discussions with India, the European Union and the OIE.
OIE stated that the OIE did receive India's risk assessment, and that the OIE had subsequently sent a response requesting clarification on the nature of the document.
India indicated that it would follow up on the response sent by the OIE, and flagged the need to first discuss the risk assessment India had provided before proceeding further.
In June 2011, the European Union recalled that India had finally provided a risk assessment in October 2010, but observed that the risk analysis provided by India did not provide any additional scientific information that justified a deviation from the existing OIE standards on AI. The risk assessment was incomplete and lacked the necessary elements. Furthermore, the paper from India had not triggered any change to the existing OIE standard during the latest OIE General Session in May 2011, and the existing standards remained the benchmark against which to measure restrictions. India was therefore requested to bring its import requirements fully in line with international standards and to recognize the concept of regionalization, as applied in the European Union, in implementing its measure.
The United States supported the concerns of the European Union, and agreed that India's risk assessment was not consistent with international standards for conducting a risk analysis, nor did it contain sufficient scientific evidence to support India's ban. India's restrictions related to AI did not conform to OIE standards and were not scientifically justified. Repeated attempts to make progress with India at a technical level had reached an impasse. The United States proposed to prepare a list of concerns regarding the assessment, together with the European Union and the OIE, and asked India to address these concerns no later than 15 August 2011. India should also lift its current restrictions while the United States and India worked together on a valid science-based assessment. If the issues could not be resolved through collaboration, the United States might petition the OIE to help mediate the issue and to provide expertise to ensure that the matter was resolved in a manner consistent with international standards and India's WTO obligations. The United States hoped to report a positive resolution to the next Committee meeting in October 2011.
Australia shared the concerns of the European Union and the United States, and encouraged all Members to take a measured approach to instances of notifiable AI and not to implement unnecessarily trade restrictive measures in relation to this disease.
OIE stated that they had received a letter from India clarifying that the provision of the risk assessment document to the OIE had been for information purposes. The OIE would be happy to review India's risk assessment if so requested, as well as to initiate a dispute mediation process if both parties agreed.
India clarified that during the October 2010 Committee meeting, they had provided their risk assessment supporting the ban on imports of poultry and poultry products from AI positive countries to the United States and the European Union, as requested. This was not the final risk assessment document, which would take some time. India welcomed inputs on the information it shared, and was examining a response from the European Union. The EU-India joint working group would also discuss this issue on 17 July 2011. India encouraged trading partners to address this issue in bilateral discussions.
In October 2011, the United States recalled that it had raised this concern on numerous occasions, as bilateral efforts to resolve the matter had not succeeded, and on 19 July 2011, India had published an extension of the restrictions. The United States did not consider that the restrictions were justified by the risk assessment provided by India, and had requested the removal of the restrictions or modification of the risk assessment by 19 August 2011, but no response had been received. The United States and European Union had thus jointly requested the OIE to provide an expert opinion of the risk assessment document provided by India. The OIE had provided a copy of its expert opinion to India, the European Commission and the United States on 4 October 2011, and the United States requested that the OIE be given the floor to summarize its findings.
The European Union also indicated that, as it had already stated earlier, the risk analysis provided by India was not complete and did not evaluate the likelihood of entry, establishment or spread of the disease, and the associated potential biological and economic consequences, nor had the document led to any changes to the OIE standards. The European Union urged India to bring its import requirements fully into line with the relevant international standards, including through the recognition of regionalization.
After offering the floor to other Members, the Chairman gave the floor to the OIE. However, India requested, as a point of order, clarification of the procedures regarding participation of observer organizations in the discussion of specific trade concerns. The Secretariat noted that according to the rules of procedure of the Committee, observers could be given the floor under any agenda item, and that it was the practice in the Committee to give international organizations the floor regarding specific trade concerns that related to international standards.
OIE indicated that, at the request of the European Union and the United States, it had asked two experts to review India's risk assessment. The experts had concluded that the scope and purpose of the risk assessment was not clearly defined, and that the assessment was poorly supported by references to the relevant scientific literature. The experts had concluded that the document did not meet the definition of an import risk analysis as set out in Chapter 2.1 of the OIE Terrestrial Animal Health Code.
India clarified that it had not formally provided any scientific risk assessment to the OIE. In October 2010, India had provided a summary report on an informal basis to the European Union and the United States. India clarified that the document had also been provided to the OIE on an informal basis, and that it was a summary document, not a full risk assessment. India considered that it was inappropriate for the OIE to comment on an incomplete document and also questioned whether the OIE had a mandate to validate a risk analysis of a Member. Furthermore, in a letter dated September 2011, India had requested the OIE to review its guidelines in order to prevent the spread of important diseases to developing countries that did not have the resources to contain and control such diseases. India had also detailed the justifications for its restrictions varying from the OIE guidelines in that letter, and was awaiting a reply from the OIE.
The United States observed that the OIE's comments confirmed that India's measures were not in accordance with the international standards, nor were they supported by a risk assessment. If this was not a final risk assessment, India should immediately remove the trade restrictions that had been maintained for nearly five years without sufficient scientific support.
OIE indicated that at the SPS Committee meeting in October 2010, they had received from India a copy of the same risk analysis document which they had been requested to review by the European Union and the United States.
Chile, Argentina and Peru noted that the expert opinion provided by the OIE was different than information provided in the past regarding how particular measures compared with the relevant international standards, and suggested that the Committee should in future consider whether it was the appropriate role of the international standard-setting bodies to validate the risk analysis relied upon by a Member.
The European Union recalled that it had previously questioned whether India's measures were based on a valid risk assessment, and stressed that the key question now was whether India would continue to maintain these measures, or bring them into line with the OIE standards.
As a subsequent point of order, India questioned whether the OIE should have been permitted to take the floor on this issue as per the procedures and provisions of the Committee and Agreement. Under Annex 3 of WT/L/161, the purpose of granting observer status was to enable an organization to follow discussions on matters of direct interest to them. The agreement between the WTO and the OIE (WT/L/272) also indicated that the OIE would be invited to participate in deliberations on agenda items on which the OIE had an interest. The OIE was a highly reputed organization recognized for its standard-setting for animal health and zoonosis, however India did not consider that it was appropriate for an observer to judge a Member's rights and obligations. India considered that other Members had the right to comment on each other's measures and policies, but that this right was not extended to observers and that allowing observers to express judgements on Members' policies had serious systematic consequences. Under Article 13 of the SPS Agreement, a Member was fully responsible for the observation of all of the obligations set out therein, and in India's view the OIE could not be considered to have an interest in how India was carrying out its risk assessment. India stated that allowing OIE to comment even before India was given an opportunity to speak was a clear case of inconsistency with due procedures as laid down in WT/L/161. India thus requested that what it considered to be the unauthorized intervention of the OIE not be reflected in the report of the Committee meeting.
The United States recalled that on numerous occasions since this issue had been raised the OIE had provided clarification when a Member has claimed that its measure was consistent with the international standards for avian influenza. India had indicated for many years that its measure was justified by a risk assessment, which was finally provided in October 2010. It was only in June 2011 that India indicated that this was a draft risk assessment, and at that time India had invited comments on its document. It was in this light that the United States and European Union had requested the OIE to review the document, and the assessment of the OIE should be reflected in the report of the meeting. The United States welcomed the suggestion that the Committee consider the issue of the role of observers, and in particular of the Three Sister organizations, in the work of the Committee.
The European Union indicated that it understood the concern that the international organizations should not interpret the rights and obligations of Members under the SPS Agreement. These three organizations had a specific role to play in the Committee as the developers of the reference standards, hence the current practice in the Committee to rely on the advice and information provided by these organizations with regard to their standards and guidelines. The question that had been posed to the OIE in this case was whether the import risk assessment conformed to the OIE guidelines for such an assessment. The European Union did not understand the statement from the OIE to be an interpretation of the rights and obligations of any Member under the SPS Agreement.
The Chairman recalled that Rule 36 of the Rules of Procedure of the SPS Committee (G/L/170) indicated that a summary report of each meeting would be prepared by the Secretariat. As there was no consensus in the Committee to not include the statement of the OIE as requested by India, the Chairman ruled that the summary report should clearly reflect the debate on this matter. In accordance with Rule 36, any delegation could request, within 10 days of the close of the meeting, the opportunity to verify those portions of the draft report containing their statements prior to the issuance of the summary report.
In accordance with the provisions of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), the United States requested consultations with India on 6 March 2012 (WT/DS430/1). The Dispute Settlement Body established a panel on 25 June 2012 (WT/DS430/3). The panel report was issued on 14 October 2014 (WT/DS430/R). The appellate body report was issued on 4 June 2015 (WT/DS430/AB/R). The United States requested the authorization to suspend concessions pursuant to Article 22.2 of the DSU. India objected to the level of suspension of concessions and referred the matter to arbitration pursuant to Article 22.6 of the DSU on 19 July 2016 (WT/DS430/17). India requested the establishment of a compliance panel pursuant to Article 21.5 of the DSU on 6 April 2017 (WT/DS430/21), panel established on 22 May 2016.
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