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According to Article 2.2 of the Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement): “Members shall ensure that any sanitary or phytosanitary measure is applied only to the extent necessary to protect human, animal or plant life or health, is based on scientific principles and is not maintained without sufficient scientific evidence, except as provided for in paragraph 7 of Article 5.” In this regard, Article 5(7) states the following: “In cases where relevant scientific evidence is insufficient, a Member may provisionally adopt sanitary or phytosanitary measures on the basis of available pertinent information, including that from the relevant international organizations as well as from sanitary or phytosanitary measures applied by other Members. In such circumstances, Members shall seek to obtain the additional information necessary for a more objective assessment of risk and review the sanitary or phytosanitary measure accordingly within a reasonable period of time.” In order to ensure the non-violation of these provisions, the SPS agreement made sure to include an assessment test in Article 5(1), which includes several factors that must be taken in consideration when making the test. Among the many factors, one could mention for instance the specific circumstances that must be taken into account in this case mainly the potential existing risks to human, animal or plant life or health. In doing so, member states of the World Trade Organization (WTO) must make use of the risk assessment techniques that are developed by the relevant international organizations. Thus, it is obvious that the SPS agreement provides scientific guarantees through which the multilateral trade system could protect its member states from arbitrary measures in the context of this agreement. Thus, the scientific evidence requested by the SPS convention would ensure the protection of the different competing interests. In the Chapter “Health Protection Measures as Barriers to EU Exports to China in the Framework of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures”, the author Denis Prevost examined the cases in which the scientific test was brought before the Dispute Settlement Body (DSB) of the WTO to claim the violation of the SPS agreement as a result of the lack of a scientific evidence proving the need for imposing such measures. In these types of cases, the assessment test showed clearly that there were no risks to human, animal or plant life or health as claimed by the state imposing such measures. One could mention for instance the case decided in 2007 where the European Union (EU) “successfully relied on the requirement of scientific justification in the SPS Agreement to challenge China’s import restrictions on animal products due to alleged dioxin contamination”. Another case that witnessed cooperation between China and the EU when China imposed a ban on spirits and wine exceeding the temporary maximum level it laid down for phthalates. This case was resolved in 2016. These are just some of the cases that relied on the absence of a scientific evidence for eliminating the trade restrictive measures.
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