Document 71NEYrV3VvO37N7L4erY6noee

Page 42 163. Accordingly, we uphold the Panel's finding, in paragraph 8.194 of the Panel Report, that the measure "protect[s] human ... life or health", within the meaning of Article XX(b) of the GATT 1994. B. "Necessary" *46 164. On the issue of whether the measure at issue is "necessary" to protect public health witlnin the meaning of Article XX(b), the Panel stated: In the light of France's public health objectives as presented by the European Communities, the E>anel concludes that the EC has made a prima facie case for the non-existence of a reasonably available alternative to the banning of chrysotile and chrysotile-cement products and recourse to substitute products. Canada has not rebutted the presumption established by the EC. We also consider that the EC's position is confirmed by the comments of the experts consulted in the course of this proceeding. [FN15 0] 165. Canada argues that the Panel erred in applying the "necessity" test under Article XX(b) of trhe GATT 1994 "by stating that there is a high enough risk associated with tine manipulation of chrysotile-cement products that it could in principle justify strict measures such as the Decree." [FN151] Canada advances four arguments in support of this part of its appeal. First, Canada argues that the Panel erred in finding, on the basis of the scientific evidence before it, that chrysotile-cement products pose a risk to human health. [FN152] Second, Canada contends that the Panel had an obligation to "quantify" itself the risk associated with chrysotile-cement products and that it could not simply "rely" on the "hypotheses" of tbie French authorities. [FN153] Third, Canada asserts that the Panel erred by postulating that the level of protection of health inherent in the Decree is a halt to the spread of asbestos-related health risks. According to Canada, this "premise is false because it does not take into account the risk associated with the use of substitute products without a framework for controlled use." [FN154] Fourth, and finally, Canada claims that the Panel erred in finding that "controlled use" is not a reasonably available alternative to the Decree. 166. With respecrt to Canada's first argument, we note simply that we have already dismissed Canada's contention that the evidence before the Panel did not support the Panel's findings. [FN155] We are satisfied that the Panel had a more than sufficient basis to conclude that chrysotile-cement products do pose a significant risk to human life or heal_th. 167. As for Canada's second argument, relating to "quantification" of the risk, we consider that, as with the SPS Agreement, there is no requirement under Article XX(b) of the GATT 1994 to quantify, as such, the risk to human life or health. [FN156] A risk may*- be evaluated either in quantitative or qualitative terms. In this case, contrary to what is suggested by Canada, the Panel assessed the nature and the character of the rrisk posed by chrysotile- cement products. The Panel found, on the basis of the scientific evidence, that "no minimum threshold of level of exposure or duration of exposure has been identified with regard to the risk of pathologies associated with clurysotile, except for asbestosis." [FN157] The pathologies which the Panel identifi_ed as being associated with chrysotile are of a very serious nature, namely lung cancer and mesothelioma, which is also a form of cancer. [FN158] Therefore, we do not agree with Canada that the Panel merely relied on the French authorities' "hypotheses" of the risk. *47 168. As to Canada's third argument, relating to the level of protection, we note that it is undisputed that WTO Members have the right to determine the level of protection of heaL th that they consider appropriate in a given situation. France has determined, and tlxe Panel accepted, [FN159] that the chosen level of health