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The decision to render impossible the import of Bombay Duck is in direct contravention of World Trade Organisation rules. The World Trade Organisation Agreement on Sanitary and Phytosanitary Measures states "The SPS Agreement, while permitting governments to maintain appropriate sanitary and phytosanitary protection, reduces possible arbitrariness of decisions and encourages consistent decision-making. It requires that sanitary and phytosanitary measures are applied for no other purpose than that of ensuring food safety and animal and plant health. In particular, the Agreement clarifies which factors should be taken into account in the assessment of the risk involved. Measures to ensure food safety and to protect the health of animals and plants should be based as far as possible on the analysis and assessment of objective and accurate scientific data".
A representative in the WTO says, concerning the SPS Agreement: "For a measure to fall under the SPS Agreement there is no need that that measure is a ban on a given product. Measures falling under the SPS Agreement are defined in Annex A, para. 1 to the SPS Agreement. What basically counts is whether a measure is applied to protect human, animal or plant life or health against risks arising from the entry, establishment or spread of pests or diseases or against so-called food-borne risks. If a measure is applied to so protect, then whether it constitutes a ban, product criteria, process or production method, inspection procedure, quarantine treatment, ... does not matter (see Annex A, para. 1 in fine). For all of these measures the basic SPS disciplines apply. As you note, all of these measures will, inter alia, need to be based on a risk assessment, on scientific principles and sufficient scientific evidence. The hygiene regime imposed with respect to Bombay Duck imports into the EU, if such regime is, for example, intended to protect human health against additives, contaminants, toxins or disease-causing organisms present in Bombay Duck, will be subject to the SPS disciplines, whether or not it constitutes a ban".
In a letter to The Minister of Trade and Industry Mr Peter Mandelson I asked him to protest to the WTO against the European Commission for applying an effective ban contrary to its rules. In his reply he repeated the subterfuge that there is "no direct ban."
When Mr Patrick Nicholls MP wrote to Mr Jeff Rooker, Minister for Food challenging the government that the "effective" ban on Bombay Duck contravened the WTO agreement, the reply again was that there is "no ban." Furthermore Mr Rooker said he is satisfied that the regulations preventing the import of Bombay Duck were "not in contravention of WTO rules."
We know that the WTO Sanitary and Phytosanitary Agreement specifically includes any "product criteria, process or production method, inspection procedure and quarantine treatment" that prevent the import of a food product as subject to the WTO agreement. The Minister avoids the issue of how the UK government can appeal to the WTO against regulations imposed by a superior authority, namely the European Commission.
Ministers and officials in their letters repeatedly say that this is a problem for the Indian government. It is deplorable that the EC and our government can impose a set of conditions on a third world country which contravene WTO rules and then say it is up to such a country to appeal to the WTO. The legal cost of taking a case to the WTO is very high. In order to make life even more difficult for third world countries, the EU rejected a proposal to assist such countries with their legal expenses.