While the SPS Agreement defers to the right of WTO Members to choose for themselves the level of SPS protection they deem appropriate ensuring within their territories, it monitors the choice of SPS measure to achieve this level of protection.

According to Annex A (5) of the World Trade Organization (WTO) Agreement on the Application of Sanitary and Phytosanitary Measures (SPS), the appropriate level of sanitary or phytosanitary protection is defined as: “The level of protection deemed appropriate by the Member establishing a sanitary or phytosanitary measure to protect human, animal or plant life or health within its territory.” Thus, the multilateral trade system has given the states members to the WTO a huge margin of liberty in order to decide the level of protection that must be requested in a product that is being imported from another country. Obviously, such definition has caused a lot of controversies between the countries members to the multilateral trade system. And as such, multiple cases were filed where the Dispute Settlement Body (DSB) had to provide much-needed clarification in order to ensure in way that these measures do not hide protectionism purposes on one hand but also to ensure that there is a minimum level of harmonization of domestic legislation that would allow the trade in goods. Indeed, the Appellate Body (AB) and the panels had plenty of occasions to decide whether a given SPS measures fall under the definition given in Annex A (5) in the sense that a member state acted in accordance with this definition as the appropriate level sanitary or phytosanitary protection was indeed appropriate and not hiding other interests. The SPS agreement went as far as providing a definition for Pest or disease-free area. As such, in accordance with the treaty, a pest is defined as “An area, whether all of a country, part of a country, or all or parts of several countries, as identified by the competent authorities, in which a specific pest or disease does not occur.” As it can be seen, the SPS agreement went as far as to provide a definition for the word pest in order to try to avoid any controversy resulting from a lack of clear definition of the word. Thus, the legislator was very careful when framing the agreement to take all these issues into consideration and even there was still some sort of vacuum that was left by the law which allowed the panels and AB to solve some of the legal uncertainties that surrounded the agreement. In that sense, one could easily notice the role of the DSB of the WTO in such situations and the much-needed clarifications that was provided by the different case laws. 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 this matter. In this regard, the author highlighted several cases in which a conflict took place, as a result, an SPS measures that were considered by a certain country exporting a given product as trade restrictive. One could mention for instance the “zero-tolerance” standard imposed by China for pathogens in food – such as salmonella and listeria, which just represents one of the many cases in which SPS measures were questioned.