This is a guest post from Boris Rigod, who has a Ph.D. from the EUI and is currently a law clerk at the Berlin Regional Court
Poland announced its intention to initiate WTO proceedings against Russia over its import prohibition on Polish apples. The ban is Russia’s reaction to a set of EU sanctions in the context of the Ukraine-crisis. Yet, formally it is justified on the basis of alleged health and hygiene concerns. If the Polish or, more accurately, the EU complaint will indeed result in an actual case before a WTO panel, many commentators assert that the “one million dollar question” will be whether Russia can successfully invoke national security as a defence. However, I do not believe that this is necessarily the case. As I sketch out in the following, everything depends on the litigation strategies of the parties and on how the EU presents its case.
Lets look at the complainants (Poland represented by the EU Commission) first and assume for a moment, quite realistically, that they prefer to avoid all questions of high-politics and simply strive to “win” the case. In order to satisfy both these demands, the EU would need a compelling case and a way out for the panel not to deal with matters of national security. To attain this end, the most effective move would be to frame the entire complaint as an SPS case without any reference to the GATT or the TBT. Given that Russia put forward health reasons in justification of the ban, the SPS would be prima facie applicable. And more importantly, by forgoing claims of GATT and TBT violations, the EU would pre-empt Russia from relying on “security” justifications as enshrined in these two agreements. Thus high-politics would not be discussed before the panel at all because the SPS does not mention “security” anywhere in the text.
If the EU only relied on the SPS to back its case, the sole questions a panel would have to decide upon were rather technical issues. The panel would have to evaluate whether the Russian ban is based on a risk assessment consistent with Article 5.1 SPS, whether the level of health protection as reflected in the ban is consistent with comparable other Russian measures (Art. 5.5 SPS), and whether the least trade restrictive means to attain the Russian health objective were deployed (Art. 5.6). Without knowing the Russian situation in-depth, it is pretty safe to assume on the basis of previous SPS cases that the EU would win the case. No WTO Member has so far succeeded in convincing the Appellate Body that its risk assessment is consistent with Art. 5.1 SPS. Accordingly, it is very doubtful that the last-minute Russian measures would live up to the extremely demanding standards developed by the Appellate Body.
What would be Russia’s best response? Probably trying to challenge the very foundations of the EU’s complaint. Instead of allowing the case to be a presented as a SPS case, Russia could assert that its measures had nothing to do with public health at all but were simply a reaction to Western sanctions. If Russia would succeed with this argument, the ban could not be considered under the SPS anymore. Then, the complaint would either be dismissed, or, if the EU made claims in the alternative based on other agreements, the benchmark would be the GATT (Articles XI and/or III:4) and, quite unlikely, the TBT. Whatever violations of these agreements a panel would find, Russia could then rely on the security-exception as a defence.
This would be a game changer. The GATT security-exception is widely perceived as a “self-judging” provision, leaving it to the party invoking it to evaluate whether its conditions are met. Moreover, it is even unclear whether WTO panels have jurisdiction to decide on Article XXI disputes. Hence, the result would probably be that Russia would win, as panels or the Appellate Body would be unwilling to meddle in matters of high-stake security politics.
Thus, assuming both parties would pursue their “best” strategies, the whole dispute would boil down to the quite technical question of whether the Russian ban on Polish apples is an SPS measure or not. Given that in previous cases the concept was interpreted very broadly – even budgetary laws can constitute SPS measures – and the fact that it would be a convenient way to avoid matters of high politics, it is safe to assume that almost regardless of the Russian defence, panels are quite likely to follow the EU argumentation.
To sum up, the EU can potentially have “both”. It can win the case and avoid discussing matters related to international security before a WTO panel. In any event, its “best” strategy is to rely solely on the SPS and not to invoke the GATT or the TBT. Under the latter two agreements the EU would probably lose anyways. Whereas by concentrating on the SPS, the EU will certainly avoid bringing international security issues before the WTO and has good chances of winning.
On the other hand, Russia’s best options are to either withdraw the ban (unlikely for political reasons) or to develop a convincing argumentation why a measure formally backed by health concerns was in fact a retaliatory measure based on ground of national security and support this claim by compelling evidence. Thereby Russia could undermine the very basis of the EU’s complaint, although its chances of succeeding with this line of defence are probably not too high. Be that as it may, under both parties’ “best” strategies the security exception is quite unlikely to be subject to review by a WTO panel.
