First Draft – Jumbree

LEGAL PLEADINGS 

1. THE DENIAL OF EQUIVALENCE FOR THE REFUSAL TO IMPLEMENT THE

FOURTH GUARANTEE IS A MEASURE WITHIN THE SCOPE OF DSU AND A SPS
MEASURE AS UNDERSTOOD UNDER THE SPS AGREEMENT. 

1. It is submitted that: (i) The Denial of equivalence for refusal to implement (Hereinafter, DoE)
can be understood to be a measure as interpreted from the relevant cases and Article 3.3 of the DSU
(ii) It shall also be shown that the Denial of Equivalence is a measure according to Annex A1 of the
SPS agreement.

1.1 THE DENIAL OF EQUIVALENCE IS A MEASURE UNDER THE DSU AGREEMENT 

2. >Signposting<

1.1.1 Denial of Equivalence falls under the definition of “measure”

3. While a measure has not been defined explicitly under the DSU agreement, but, the Appellate
body in respect of the scope of Article 3.3 of the DSU had ascribed meaning to it for the purpose of
WTO Dispute Settlement that is – “in principle, any act or omission attributable to a WTO Member1.”
This understanding has been affirmed in the context of SPS Agreement as well in the case of Costa
Rica - Avocados.2 It shall be demonstrated that the DoE satisfies the requirements to be a measure
under DSU as it is (i) an act or an omission (ii) attributable to a WTO Member. 
4. Firstly, the DoE is an act in that it is an administrative decision considering that the
appropriate Executive Authority, Department of Agriculture of the Government of Nagori had denied
the request for equivalence because of the non-implementation of the 4th guarantee. An “Act” is the
process of doing or occurrence that results from a person’s will being exerted on the external world.
Here, Nagori has denied the equivalence because of Jumbree’s non-compliance with the 4th guarantee.
This non-adherence has led to Nagori exerting its will not to grant equivalence to Jumbree and
therefore, can be understood to be an act under the first part of Measure under DSU. And as analysed
in Russia-pigs, the act can be understood in terms of its content and extent. Here, the extent is to not
allow any cost-advantage or removal of barriers because of the non-compliance of 1 of the 4 required
guarantees.
5. Secondly, the DoE is an act attributable to a WTO member, that is Jumbree. The DoE
identified by Jumbree as a specific measure at issue can be attributed as a response to Jumbree’s
1
This understanding was first given in US- Corrosion
2
poultry regulations by the Dept. of Agriculture, Nagori. The acts or omissions attributable are of the
organs of the state.3 In the case of Costa Rica – Avocadoes, it was held The act of DoE was done in
furtherance to the request of equivalence asked for by Jumbree to attain the benefit of removing most
of the trade barriers, reaching their export potential and gaining a cost advantage, and thus, it is an act
attributable to a WTO member, that is Jumbree.

1.1.2 Denial of Equivalence, individually and jointly, constitutes to be a measure under DSU
6. In the instant case, DoE is with regards to the refusal to implement the 4 th guarantee is both
individually and jointly a measure under the DSU. The ‘DoE is itself an obligation along with the 4 th
guarantee’. Equivalence is a matter of obligation if and only if the country can demonstrate that its
measures achieve the level of protection that the exporting country deem to be appropriate. 4 The
conditional obligation, in itself, is a measure as it is an act attributable to Jumbree by Nagori to help it
realise its export potential by lowering trade barriers and giving a cost advantage. Additionally, the
requirement of implementation of the 4th guarantee is an act done to ensure GreenPox levels in the
country remain at current levels, both qualify individually to be a measure. The counsel further pleads
that this measure jointly restricts the ability of Jumbree to realise its export potential and thus, this act
as a whole, jointly and individually qualifies as a measure. Thus, the measure at hand is one unified
measure at issue.

1.1.2 Denial of Equivalence does not need to be a mandatory legal instrument to be a measure
7. It is submitted that even though the denial of equivalence has not been pronounced by the
means of mandatory legal instrument. This logic has been based on the GATT jurisprudence that had
elaborated there is no basis for saying that only certain types of measures can be challenged in dispute
settlement program. So, for any issue to be considered as a measure it does not need to have the
mandatory legal character but rather fulfil the basic requirements of measure which the measure at
hand does.
8. Conclusion

1.2 THE DENIAL OF EQUIVALENCE IS A MEASURE UNDER THE SPS MEASURE

9. >Signposting<

1.2.1 The measure at issue embodies the elements necessary for constituting a SPS measure
10. It is given that for any measure that to constitute an SPS measure regard must be given to the
elements that are: purpose, legal form and nature 5. Purpose lies under Annex A(1)(a) through (d).

3
US – Carbon Steel, US Corrosion that was stated in Australia Apples also.
4
Max Planck,
5
EC Biotech
While form and nature is addressed in second paragraph of Annex(1) that talks about (laws, decrees,
regulations) and (requirements and procedures, inter alia…) respectively.

1.2.1.1 The DoE was a SPS measure in terms of its purpose

11. As Australia Apples had noted that the term “to protect” indicates a purpose or intention,
establishing a required linked between the measure and the protected interest. In the present case, the
central purpose of denial of equivalence was to limit the measure at hand was constituted with the
central purpose of protecting Nagori from the possible spread of GreenPox resulting from Jumbree’s
poultry products.

1.2.1.1.1 The DoE protects listed interests under the Annex A1 of the SPS Agreement
12. A sanitary or phytosanitary measure has been defined under Annex A(1) of the SPS
Agreement. For any measure to be considered a SPS measure under the scope of the SPS agreement,
it has to fall under any of the listed interests from (1)(a) to (d) . In the present case, the measure fulfils
the purpose set out in subclause (a) and (d). Subclause (a) is “to protect animal or plant health within
the territory of the member from risks arising from the entry, establishment or spread of pests,
disease, disease-carrying organisms or disease-causing organisms.” Along with subclause (d) which
is, “to prevent or limit other damage within the territory of the Member from the entry, establishment
or spread of pests.” In the case of Australia Apples, it was held that a SPS measure must be one
applied to protect at least one of the listed interest to protect against a specific risk or to prevent or
limit specific damage.6 Herein, the measure has applied the listed interest under sub-clause A
considering Nagori has denied equivalence due to the non-implementation of 4 th guarantee to protect
its own territory from the possible outbreak of GreenPox due to the fact that Jumbree is prone to
flooding.
13. And secondly, the measure has also applied to protect against any other damage within the
territory. As interpreted in the case of EC – Biotech, the term other damage was understood as “other
than damage to life or health of plants, animals, or humans – which could include economic damage.
These definitions cover harm resulting in a reduction of economic value, adverse economic effects or
economic loss. So, interpreting economic damage is consistent with the context of Annex A(1)(d).” 7
Here, the other damage measure was protecting against by applying is the economic damage that can
come from any increased exposure to GreenPox of Nagori as shown by studies which is further
exacerbated considering that the poultry infected by GreenPox needs to be culled as recommended by
WOAH. Thus, the measure is applied to protect the territory against both the risks that fall under the
definition of listed measures.

6
Costa Rica Avocadoes had referred to Korea Radionucleids.
7
EC Biotech – 411, paragraph 7.370
1.2.1.2 The DoE was a SPS Measure in terms of its form and by their nature
14. The requirements for form and nature 8 as that the former that is the legal form may
intrinsically determine the nature of a measure for the purpose of determining whether a measure is of
the type listed in second paragraph of Annex A(1). 9 And in the case of EC Biotech it was given that, if
a measure is addressed to the state and to be transposed by them through legislative or administrative
action and binding on them, it can be assimilated in the form of law and therefore, it can be
considered to meet the form element. In the present case, the letter furnished by Jumbree to
communicate the denial of equivalence is a measure attributable to the government. They are a result
of adoption of the recommendation by the government that had given that on the basis of the results
from the audit and relevant scientific evidence, the equivalence should be granted subject to the
implementation of the 4 guarantees. This along with the official communication can be assimilated to
measure adopted in the form of laws and thus, meets the form element and intrinsically the nature
element.

1.2.2 The DoE has been applied or has a specific effect

15. The definition under Annex 1(a) states that any measure must be applied to protect the listed
interests or prevent or limit. The AB in Australia Apples had noted that the word applied points to the
application of measure and thus, there must be a manifest relationship between the measure and the
objectives in Annex A(1) or evident from the circumstances related to the application of the same. It
is not only ascertained from the objectives of measure expressed by the responding party but also the
text, structure of the measure, surrounding regulatory context and the way in which it is designed and
applied. Presently, the measure was applied as an effect to the results of evaluation of the poultry
regulations and the in-country audit. This shows that the measure and the objective had a manifest
intention as Nagori did not agree with the ground-level implementation of Jumbree. Thus, the
surrounding regulatory context also shows that the measure was applied to protect the health of the
poultry products in Nagori and prevent any negative economic effect that may result from the same.
16. The last part of the definition gives that the sanitary or phytosanitary measure gives that all
relevant legal instruments shall be included. In the interpretation of the words “include” and “all
relevant” by Australia Apples, it was given that a measure of any type even when not expressly listed
may nevertheless constitute a SPS measure when they are relevant, that is when they are applied for a
purpose that corresponds to one of those listed from 1(a) to (d). 10 In the present case, the Denial of
Equivalence is a communication from the side of Deputy Director, Import Compliance, Dept. of
Agriculture, Govt. of Nagori. Even then, since the communication fulfils the purposes under the listed
measures as proved above so, it is a relevant legal instrument that can be considered a SPS measure.

8
As given by EC biotech
9
Russia Pigs 7.196 pp 92 PDF
10
Australia Apples Appellate body – para 175,
1.2.3 The DoE directly or indirectly affects international trade.
17. Article 1.1 of SPS Agreement provides, inter alia, that the SPS Agreement “applies to all
[SPS} measures which may, directly or indirectly, affect international trade.” So, for any measure to
fall within the realm of SPS agreement, it must be (1) a SPS measure (2) may directly or indirectly
affect international trade.11 In the instant case, the grant of equivalence would have resulted into freer
trade for Jumbree as it could realise its export potential due to lowered trade barriers and cost
advantage. There was a potential effect on trade, and as it was held in the case of Russia Pigs (EU)
that it is not necessary to demonstrate whether the SPS measure has had an actual effect on the case,
just a potential to effect trade is sufficient.
18. Conclusion

2. THE DENIAL OF EQUIVALENCE FOR REFUSAL TO IMPLEMENT THE

FOURTH GUARANTEE IS DISCRIMINATORY AS IT ‘ARBITRARY OR
UNJUSTIFIABLY DISCRIMINATES BETWEEN MEMBERS WHERE IDENTICAL
OR SIMILAR CONDITIONS PREVAIL’.
19. It is submitted that the measure is discriminatory as it does not follow the obligations present
under the SPS agreement under the provisions (i) Article 2.3 that outlines primary obligation by
ensuring that the members do not arbitrarily or unjustifiably discrimination between members in
similar or identical situations and SPS measures are not applied in a way that it leads to a disguised
restriction (ii) Article 5.5 that builds on the aforementioned obligations by presenting more specific
and detailed rights and obligations.

2.1 The measure is inconsistent with Article 2.3 of the SPS Agreement
20. >Signposting<

2.1.1 The measure can be said to be inconsistent with the first sentence of Article 2.3
2.1.1.1 The measure discriminates between Jumbree and Nagori
21. It is submitted that Nagori is maintaining different ALOPs with respect to domestic and
imported poultry.

2.1.1.1.1 The measure substantively discriminates between poultry products from Jumbree and
Nagori
22. Discrimination requires a difference in treatment but as qualified as US-Animals, the focus
includes whether the measure (i) alters the conditions of competition to the detriment of domestic
products (ii) allowance of inquiry into the appropriateness of regulatory regime (iii) is discriminatory

11
EC Hormones (Canada) 8.39
not only from the detailed operating provisions of measure, but also the application of measures that
are fair and just on the face.
23. Firstly, the measure alters the conditions of competition to the detriment of the domestic
products considering that the substantive condition for granting the equivalence imposes the
application of nation-wide GreenPox testing. It is to see that GreenPox testing imposes 2 rounds of
testing on Fresh Poultry and 3 rounds for Poultry preparation for all 6 genotypes. This added testing
that is only imposed on Nagori would lead to added expenses on the part of Jumbree. And it can be
reasonably understood that it leads to higher costs that imposes a detriment on imported products in
comparison to domestic products. Considering the fact that Jumbree had already brought in line their
regulations with the international best practices and even conducted stakeholder meetings to cure the
deficiencies.
24. Furthermore, the essence of grant of equivalence comes from the mutual benefit that the
importing and exporting countries both receive as it allows them to facilitate trade and minimise the
costs of regulation to governments.12 But if the qualification for grant of equivalence leads the parties
to implement the nation-wide GreenPox testing to achieve the appropriate level of protection, it would
be counterproductive to the basis of institution of measures.
25. Secondly, there was no allowance of inquiry into the appropriateness of regulatory conditions.
In the instant case, it can be seen that the even when Jumbree’s Dept. of Agriculture presented its
concerns regarding the excessive nature of the measure and it being higher than Nagori’s bar for
ALOP, but they were not taken into account and conveyed the inability to grant equivalence due to
non-adherence. But during the evaluation of whether to allow equivalence or not, there were no
comments or any discussions taken with Jumbree even when it was going to have a significant trade
effect on Jumbree.13
26. Additionally, the appropriateness of the regulatory conditions are not allowed to be dealt in
terms of the real-life impact on Jumbree considering that they are rigid and unbending. As held in the
case of India-Agricultural products wherein India had only imposed a testing requirement for Avian
Influenza on the imported products. Even in the present case, like India-Agricultural products, Nagori
has not accounted for the differences that might exist with regards to circumstances where the
imported products do not pose a risk even though the disease has been detected in the country. The
measures imposed have a rigid and unbending requirement and do not exhibit any flexibility with
regards to the differences among the exporting countries. Here too, the requirement is applicable on
all the poultry products with no qualification as to there being a risk and no equivalence would be
granted without the same. Furthermore, it is given that 3 out of 4 guarantees were

12
Paragraph 3, Section I, Preamble, Judgement of equivalence of sanitary measures associated with food
inspection and certification systems.
13
Article 7 and Annex B
27. Thirdly, the application of the measure is discriminatory considering that the measure even
though on the face of it tries to show that the basic sanitary requirements should be met but in reality
imposes such ___.
28. Thus, imposition of the 4th guarantee is discriminatory and thus, denying equivalence on the
basis of the same is erroneous.

2.1.1.1.2 There is discrimination on the basis of procedural or informational requirements

29. US Poultry had held that discrimination can stem from both procedural or information
requirements. It is submitted that in the present case, the Denial of Equivalence was procedurally
discriminatory on three levels: (i) Lack of response to the equivalence is a timely manner (ii) lack of
accelerated procedure for determining equivalence for historical imports (iii) 4 th guarantee does not
meet the procedural requirement under Article 7(5) and Annex B of the SPS Agreement.
30. Firstly, An importing member shall respond in a timely manner to any request from an
exporting member for consideration of equivalence of its measures, normally “within a 6 month
period”. It is the obligation of a country to look into the compliance of the exporting member,
Jumbree. In the instant case, the request for equivalence was made on August 7, 2018 which was
responded to only on September 18, 2019, constituting to be a one-year period in which response was
granted. This constitutes to be a violation of the obligations set out by the SPS Committee.
31. Secondly, in the determination of Equivalence according to the Guidelines published 14 shows
that importing country, here Nagori, should describe how its own sanitary measures achieves its
ALOP. In the instant case, Nagori has imposed a stringent nation-wide greenpox testing requirement
on Jumbree but no domestic regulation from the side of Jumbree. There has been no implementation
of any control mechanisms in Nagori that can effectively show that equivalence can or cannot bex
granted
32. The importing country is also required to take into account “any knowledge and past
experience” while making a determination as efficiently and quickly as possible. Here, Nagori had
been made aware of the fact that Jumbree has reduced the risk of flooding because of environmental
planning and concerted efforts. Furthermore, past sanitary issues have been rectified in line with the
global best practices. This comes under relevant knowledge that has been provided to ensure efficient
trade with Nagori.
33. Furthermore, under the guidelines, countries have to consider history of food trade between
the countries and history of compliance of foods with the importing country’s requirements,
particularly with food products in question. In the present case, Nagori is one of the largest trade
partner of Jumbree and are on Most Favoured Nation basis. Along with the fact that it has historically
exported poultry products to Nagori. And though, the imports had ceased for small period of time,

14
Guidelines on Judgement of Equivalence of sanitary measures associated with Food inspection and
Certification systems.
Jumbree has revamped the regulations to provide best quality exports in Nagori’s market to which
Nagori had expressed satisfaction to after conducting stakeholder consultations with the same.
Jumbree has even allowed Nagori for access to enable inspections and certification systems to check
its compliance with Nagori’s requirements. So even when Jumbree’s procedural requirements meet
the bar, Nagori has not accelerated the procedure for the historical imports.
34. Additionally, for accelerated procedures, the importing member should estimate steps that
the demonstration of equivalence would require and inform them of a time schedule. These steps are
necessary to have predictability to the process of equivalence. In the instant case, however, no such
time schedule was given. Jumbree was finally informed of the decision a year later. This constitutes as
a violation of the guidelines presented in lieu of grant of equivalence.
35. Thirdly, the 4th guarantee in itself does not meet the procedural requirements as set out under
Article 7(5) and Annex B of the SPS Agreement. Under the notification requirement set out under
Paragraph 5 of Annex B, in a situation where the content of the SPS regulation is not substantively
same as the content of international standards in that regard and has a significant trade effect on the
member, the members must without discrimination allow members to make comments in writing
and have discussion upon request. 15 In the instant case, the new regulation has been substantively
different from the prevailing international norms considering Jumbree has brought the regulations in
line with the global best practices. However, in the present case, there is a significant effect
considering that equivalence would allow them to realise their export potential by removing their
trade barriers and cost advantage. Along with the fact that there is severe oversupply in Jumbree due
to their internal policies that would be cured if Nagori allows Jumbree to export poultry. This is a
significant trade interest which was violated because of DoE and no inputs were taken for the same by
Nagori, even when it was pertinent to do so. Thus, the denial of equivalence for refusal of
implementation of the 4th guarantee has led to discrimination on a procedural basis.

2.1.1.2 The measures are arbitrary and unjustifiable

36. The measure at issue is inconsistent with the second element as there is no rational connection
between Nagori’s measures and its regulatory objective. 16 The difference in treatment in the present
case is not based on a rational ground. 17 It is given that (i) the measure is rooted in an inadequate
rationale that is the risk assessment undertaken by Nagori.
37. Arbitrary or unjustifiable discrimination involves a consideration of whether there is a
rational connection between the reasons given for discriminatory treatment and the stated objective of
the measure18 It is submitted that the denial of equivalence for the refusal to implement the 4 th
guarantee is arbitrary and unjustified on several levels: (i) risk assessment analyses possibility than
15

16
Korea Radionucleids – paragraph 7.340
17
Max Planck – 407
18
US Poultry China 7.261
probability of incidence (ii) minority scientific opinion is an insufficient piece of evidence (iii) ground
reality of disease prevalence is different from claimed reality
38. Firstly, the risk assessment on which the denial of equivalence has been based that had
recommended the adoption of the 4 guarantees misconceives the potential for spread of GreenPox as
the probability of spread of GreenPox. As given by EC Hormones, the panel in the interpretation of
risk assessment had cautioned against the use of the word “probability” in place of potential.
Probability implies a higher degree or threshold of possibility 19. In the instant case, firstly, the poultry
farming districts are prone to flooding. This is a possibility considering that Jumbree has a risk of
flooding, however, Jumbree in the recent years, through concerted efforts and environmental planning
has reduced the risk. So even when there could be a possibility of flooding in the poultry farming
district, there is no probability for the same. And as held by Australia Salmon, a zero risk approach is
unattainable.
39. Additionally, it has been given that ‘floods “generally” increase the risk of outbreaks and
spread’. Generally ordinarily means – in general terms, without regard to particulars and exceptions.
This further justifies how flooding would lead to outbreak of greenpox is without regard to the
exceptions or the particulars. And Article 5.2 mandates that any risk assessment should take into
account available scientific evidence, together with other factors. In the instant case, Jumbree has
stable regulatory conditions as seen 29 years of economic stability along with the fact that other
factors that is, ‘considerably reduced risk’ of flooding through concerted efforts and environmental
planning. Therefore, the risk assessment shows the potential for the disease-prevalence rather
probability of outbreaks.
40. Secondly, the minority scientific opinion that is relied upon by the risk assessment is an
insufficient piece of evidence. As observed by the Panel in Japan Apples, valid scientific basis as
understood under Article 2.2 gives that “any valid SPS measure excludes not only insufficiently
substantiated information but also non-demonstrated hypothesis”. In the instant case, the risk
assessment uses the term non-demonstrated hypothesis that has not been substantiated with any other
information.
41. Thirdly, the claim that – “outbreaks in Nagori have been very limited that have been tackled
without the implementation of any control mechanisms by the government” can be contrasted with the
ground-level situation i.e. instances of food adulteration and lack of sanitary controls on poultry
products. There were outbreaks in Nagori where entire local populations were severely affected by
contaminated food, even when import ban on Jumbree’s poultry products was imposed in 2015. So,
even the risk assessment is severely limited considering that “risk is not only to be ascertained
evaluated in scientific laboratories but also in human societies as they actually exist with the actual
potential for adverse effects on human health in the real world”. In the present case, the risk was not

19
EC Hormones from analytical index
understood at the ground-level and thus, having no domestic regulation in place shows that the denial
of equivalence was not based on a rational basis.
42. Furthermore, the claim qualifies as a token information as given in Japan Apples. The
information is a claim that cannot be considered to be a part of the scientific evidence as it is an
information that has not been gathered through scientific methods. And as held, the only that should
be considered and any token information should be excluded. Thus, the rationale for the
distinctiveness of the measure is deeply flawed.

2.1.1.3 Jumbree has identical and similar conditions to Nagori.

43. Identical or similar conditions as interpreted in the context of chapeau of GATT has been
understood

2.1.2 The measure is inconsistent with the second sentence of Article 2.3
44. The obligation at hand in the current case is related to the fact that SPS measures do not
constitute a disguised restriction on international trade. It has been held that in the case of US –
Gasoline has given that arbitrary or unjustifiable discrimination is a broader form of disguised
restrictions. In the case of panel of Korea Radionuclides, they had found inconsistency with the
measure with the first sentence of Article 2.3 and found it unnecessary to make other findings in
relation to the second sentence of Article 2.3. 20 So, the principle of judicial economy can be exercised
with respect to this situation. Principle of judicial economy allows panels to refrain from making
multiple findings that the same measure is inconsistent with various provisions when a single, or a
certain number of findings of inconsistency, would suffice to resolve the dispute. 21 Therefore, the
measure can be considered to be inconsistent with Article 2.3 as a whole.

2.2 The measure is specifically violative of Article 5.5 of the SPS agreement
45. Include warning signals// Article 5.5 in context of SPS agreement constitutes a specification
of the basic obligations contained in Article 2.3, so the specification brings within the purview –
measure at issue was arbitrarily and unjustifiably discriminatory because it treated differently two
products that presented the same level of risk. ____

20
Korea Radionuclides – 7.356
21
Russia Pigs
 III. THE ENHANCED TESTING REQUIREMENTS ARE NOT BASED ON A
RISK ASSESSMENT AS UNDERSTOOD UNDER THE SPS
AGREEMENT.
46. It is submitted for any SPS measure, here the enhanced testing requirements, to be
maintained, it has to be based on sufficient scientific evidence. Article 5.1 …. The Enhanced testing
requirements are not based on the risk assessment as (i)

3.1 The risk assessment is insufficient

47. The risk assessment at issue falls under the second part of Annex:4, that is, evaluation of
potential for adverse effects on human or animal health (animal including fish and wild fauna)
arising from the presence of additives, contaminants, toxins, or disease-causing organisms in food,
beverage or foodstuffs. It is given that the risk assessment should (1) identify the adverse effects on
human health (if any) (2) if any adverse effects exist, evaluate or probability of occurrence of these
effects.22
48. Firstly, in the present case, the risk assessment has only generally discussed the risk 23
rather
than evaluated the potential for adverse effects on humans or animal health. 24 It only talks about Ilish
having a high risk of Chimera and how the risk can be reduced. The panel in Japan Apples gave that
assessment of risk is not satisfied merely by a general discussion of the disease that is to be avoided
by the SPS measure.25 It has also been affirmed that a risk assessment has to be carried out for each
individual substance26 and should be sufficiently specific. 27 In the instant case, the risk assessment is
not sufficiently specific as it does not consider the adverse effects on human health caused by salt and
peppered Ilish and probability of occurrence of Chimera from the same. The risk assessment deals
with substance and the causative agent in general that is Ilish causing Chimera. However, it does not
qualify the same. It is possible that the potential for adverse effects and probability differs for
different types of Ilish preparations. The level of risk in different types of Ilish preparations may vary
between edible additives, smoked, steamed or other preparations. And therefore, basing the measure
which determines the testing criteria and sample size on inadequate risk assessment is irrational.
49. Secondly, in EC Hormones, it was held that the risk assessment should see the harm
concerned as well the precise agent that is causing the harm. The risk assessment take into consider an
important causative agent of the disease, salt and pepper. It only focuses on the risks arising from Ilish
and Ilish preparations in general. The risk assessment has not taken into consideration the negative or
positive effects of precise agent i.e. salt and pepper. Jumbree has even accepted the enhanced checks

22
Max planck
23
Canada Continued suspension
24
Max Planck p 442
25
Japan Apples
26
EC Hormones
27
EC hormones
imposed on its salt and pepper due to along with the fact that salt and pepper are known to increase
the longevity of food and reduce the bacterial contamination in foods. Thus, the risk assessment is
insufficient.
50. Secondly,

Furthermore, violation of Article 5.1 implies a violation of Article 2.2