III. At the time of panel establishment (28 September 2015 г.) all the 4 measures at issue were, and continue to be, inconsistent with Article 2.3 SPS Agreement
deemed that in this case, the relevant conditions to be compared between Members for the purpose of determining whether conditions are similar within the meaning of Article 2.3 is whether products from Japan and the rest of the world have a similar potential to be contaminated with the 20 Codex Alimentarius
radionuclides, in particular with caesium, iodine, strontium and plutonium (the main radionuclides released into the environment as a result of the FDNPP accident), and whether the levels of contamination would be below Korea's tolerance levels (7.283).
The panel found that Japan had failed to meet its burden of proof with respect to the existence of similar conditions in Japanese and non-Japanese products at the time of adoption of the 2011 additional testing requirements
for agricultural products (except livestock), processed foods and food additives — among other things, because Japan admitted that during that period caesium levels in food from the most affected areas of Japan had 'increased considerably' (7.301).
Similarly, Japan did not meet the burden of proof to establish its factual assertion that the potential for radionuclide contamination in Pacific cod and Alaska pollock from the relevant prefectures in 2012 were below Korea's tolerance levels
. This is because, in particular, that Korea's restrictions of 2012 had followed Japan's introduction of its own internal restrictions on distribution of these two fishery products from the same prefectures because caesium levels detected in samples had been in excess of the tolerance level of 100 Bq/kg. (7.302).
However, at the time of panel establishment in 2015,
similar conditions existed in Japan and in other Members for all food products, including the 28 fishery products (7.321). In particular, the experts confirmed that the data provided by Japan reasonably supported a conclusion that by 2015 the levels of caesium concentration in Japanese food had generally returned to levels below 100 Bq/kg. Korea admitted in that regard that none of over 188,000 consignments of Japanese food imported into Korea contained caesium in excess of 100 Bq/kg (7.309).
In these conditions, the maintenance of the product-specific bans
on Pacific cod and Alaska pollock, as well as the 2013 blanket import ban
for all 28 fishery products from all 8 prefectures, afford discriminatory treatment
to Japanese products (7.325). Since these bans, in the view of the panel, have no rational connection with the measures' stated purpose of protecting Korean consumers against the risk posed by radionuclides in food in excess of Korea's tolerance levels, this discrimination is arbitrary or unjustifiable
(7.343, 7.349) and is therefore in violation of Article 2.3 SPS Agreement (7.360).
Similarly, the maintenance of the additional testing requirements is discriminatory
(a) while every consignment
of Japanese food, in which more than 0.5 Bq/kg of caesium or iodine has been detected, is subjected to additional testing regardless of the type of food involved, only the 150 most frequently consumed products of other origins undergo additional testing (7.329, 7.330);
(b) Japanese products may be tested both at the border and at the point of sale, while products of other origins are tested only at the point of sale, which doubles the burden on Japanese imports as compared to Korean and third-party products (7.330).
Since, in the view of the panel, there is no rational conntection between this discrimination and the stated regulatory objective of the measure, this discrimination is arbitrary or unjustifiable
(7.352-7.355) and is therefore in violation of Article 2.3 SPS Agreement (7.360).
More about the parties' arguments and the panel's reasoning on this issue