WORLD TRADE
ORGANIZATION |
WT/DS231/AB/R
26 September 2002
(02-5137)
|
|
Original: English |
EUROPEAN COMMUNITIES - TRADE DESCRIPTION OF SARDINES
AB-2002-3
Report of the Appellate Body
(Continued)
IX. The Question of the "Ineffectiveness or Inappropriateness" of Codex Stan
94
259. We turn now to the second part of Article 2.4 of the TBT Agreement , which
provides that Members need not use international standards as a basis for their
technical regulations "when such international standards or relevant parts would
be an ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued".
260. In interpreting this part of Article 2.4, the Panel, first, addressed the
question of the burden of proof, and made the following finding:
� the burden of proof rests with the European Communities, as the party
"assert[ing] the affirmative of a particular claim or defence", to demonstrate
that the international standard is an ineffective or inappropriate means to
fulfil the legitimate objectives pursued by the EC Regulation.176 (footnote
omitted)
261. Regarding the substance of the phrase "except when such international
standards or relevant parts would be an ineffective or inappropriate means for
the fulfilment of the legitimate objectives pursued", the Panel began by
examining the meaning of the terms "ineffective" and "inappropriate". The Panel
said:
Concerning the terms "ineffective" and "inappropriate", we note that
"ineffective" refers to something which is not "having the function of
accomplishing", "having a result", or "brought to bear",91 whereas
"inappropriate" refers to something which is not "specially suitable", "proper",
or "fitting".92 Thus, in the context of Article 2.4, an ineffective means is a
means which does not have the function of accomplishing the legitimate objective
pursued, whereas an inappropriate means is a means which is not specially
suitable for the fulfilment of the legitimate objective pursued. An
inappropriate means will not necessarily be an ineffective means and vice versa.
That is, whereas it may not be specially suitable for the fulfilment of the
legitimate objective, an inappropriate means may nevertheless be effective in
fulfilling that objective, despite its "unsuitability". Conversely, when a
relevant international standard is found to be an effective means, it does not
automatically follow that it is also an appropriate means. The question of
effectiveness bears upon the results of the means employed, whereas the question
of appropriateness relates more to the nature of the means employed.
91 The New Shorter Oxford English Dictionary (Clarendon Press, 1993), p. 786.
92 Ibid., p. 103.
177
(original emphasis)
262. Second, the Panel addressed the meaning of the phrase "legitimate
objectives pursued". The Panel stated that the " 'legitimate objectives'
referred to in Article 2.4 must be interpreted in the context of Article 2.2",
which provides an illustrative, open list of objectives considered "legitimate".178
Also, the Panel indicated that Article 2.4 of the TBT Agreement requires an
examination and a determination whether the objectives of the measure at issue
are "legitimate".179
263. The Panel took note of the three "objectives" of the EC Regulation
identified by the European Communities, namely market transparency, consumer
protection, and fair competition.180 The Panel also noted Peru's acknowledgement
that those "objectives" are "legitimate", and the Panel saw "no reason to
disagree with the parties' assessment in this respect."181 During questioning at
the oral hearing, Peru confirmed that it does see these three objectives pursued
by the European Communities as "legitimate" within the meaning of Article 2.4.
264. The Panel then examined whether Codex Stan 94 is "ineffective" or
"inappropriate" for the fulfilment of the three objectives pursued by the
European Communities through the EC Regulation in the light of the definitions
that the Panel articulated for those two terms. The Panel noted that the three
objectives were founded on the factual premise that consumers in the European
Communities associate "sardines" exclusively with Sardina pilchardus . The Panel
was of the view that, if this factual premise is valid, it must be concluded
that Codex Stan 94 is "ineffective or inappropriate" to meet the "legitimate
objectives" of market transparency, consumer protection, and fair competition.
In other words, if European Communities consumers associate the term "sardines"
exclusively with Sardina pilchardus , a product identified as "sardines" would
have to be made exclusively of Sardina pilchardus so as not to mislead those
consumers.182 However, after reviewing the evidence adduced by the parties, the
Panel stated that "it has not been established that consumers in most member
States of the European Communities have always associated the common name
'sardines' exclusively with Sardina pilchardus and that the use of 'X sardines'
would therefore not enable the European consumer to distinguish preserved
Sardina pilchardus from preserved Sardinops sagax ."183 The Panel also found that,
by establishing a precise labelling requirement "in a manner not to mislead the
consumer"184, "Codex Stan 94 allows Members to provide [a] precise trade
description of preserved sardines which promotes market transparency so as to
protect consumers and promote fair competition."185 On this basis, the Panel
concluded that Codex Stan 94 is not "ineffective or inappropriate" to fulfil the
"legitimate objectives" pursued by the European Communities through the EC
Regulation.
265. Although the Panel had assigned the burden of proof under Article 2.4 to
the European Communities-so that it was for the European Communities to prove
that Codex Stan 94 was "ineffective or inappropriate" to meet the European
Communities' "legitimate objectives"-the Panel stated that Peru had, in any
event, adduced sufficient evidence and legal arguments to allow the Panel to
reach the conclusion that the standard was not "ineffective or inappropriate".186
266. The European Communities appeals the Panel's assignment of the burden of
proof under Article 2.4 of the TBT Agreement . The European Communities disputes
the Panel's conclusion that the burden rests with the European Communities to
demonstrate that Codex Stan 94 is an "ineffective or inappropriate" means to
fulfil the "legitimate objectives" of the EC Regulation. The European
Communities maintains that the burden of proof rests rather with Peru, as Peru
is the party claiming that the measure at issue is inconsistent with WTO
obligations.
267. The European Communities also appeals the finding of the Panel that Codex
Stan 94 is not "ineffective or inappropriate" to fulfil the "legitimate
objectives" of the EC Regulation. In particular, the European Communities argues
that the Panel erred in founding its analysis on the factual premise that
consumers in the European Communities associate "sardines" exclusively with
Sardina pilchardus.187 Furthermore, the European Communities contends that the
Panel erred in concluding that the term "sardines", either by itself or when
combined with the name of a country or geographic area, is a common name for
Sardinops sagax in the European Communities. The European Communities also
objects to the decision by the Panel to take this conclusion into account in its
assessment of whether consumers in the European Communities associate the term
"sardines" exclusively with Sardina pilchardus .
268. In considering these claims of the European Communities, we will address,
first, the question of the burden of proof, and, next, the substantive content
of the second part of Article 2.4 of the TBT Agreement .
A. The Burden of Proof
269. Before the Panel, the European Communities asserted that Codex Stan 94 is
"ineffective or inappropriate" to fulfil the "legitimate objectives" of the EC
Regulation. The Panel was of the view that the European Communities was thus
asserting the affirmative of a particular claim or defence, and, therefore, that
the burden of proof rests with the European Communities to demonstrate that
claim.188 The Panel justified its position as follows: first, it reasoned that the
complainant is not in a position to "spell out" the "legitimate objectives"
pursued by a Member through a technical regulation; and, second, it reasoned
"that the assessment of whether a relevant international standard is
'inappropriate' � may extend to considerations which are proper to the Member
adopting or applying a technical regulation."189
270. We recall that, in United States - Measure Affecting Imports of Woven Wool
Shirts and Blouses from India, we said the following about the burden of proof:
� the burden of proof rests upon the party, whether complaining or defending,
who asserts the affirmative of a particular claim or defence. If that party
adduces evidence sufficient to raise a presumption that what is claimed is true,
the burden then shifts to the other party, who will fail unless it adduces
sufficient evidence to rebut the presumption.
In the context of the GATT 1994 and the WTO Agreement, precisely how much and
precisely what kind of evidence will be required to establish such a presumption
will necessarily vary from measure to measure, provision to provision, and case
to case.190 (footnote omitted)
271. In EC - Hormones, we stated that characterizing a treaty provision as an
"exception" does not, by itself, place the burden of proof on the respondent
Member.191 That case concerned, among other issues, the allocation of the burden of
proof under Articles 3.1 and 3.3 of the SPS Agreement. Those Articles read as
follows:
Article 3
Harmonization
1. To harmonize sanitary and phytosanitary measures on as wide a basis as
possible, Members shall base their sanitary or phytosanitary measures on
international standards, guidelines or recommendations, where they exist, except
as otherwise provided for in this Agreement, and in particular in paragraph 3.
�
3. Members may introduce or maintain sanitary or phytosanitary measures which
result in a higher level of sanitary or phytosanitary protection than would be
achieved by measures based on the relevant international standards, guidelines
or recommendations, if there is a scientific justification, or as a consequence
of the level of sanitary or phytosanitary protection a Member determines to be
appropriate in accordance with the relevant provisions of paragraphs 1 through 8
of Article 5. Notwithstanding the above, all measures which result in a level of
sanitary or phytosanitary protection different from that which would be achieved
by measures based on international standards, guidelines or recommendations
shall not be inconsistent with any other provision of this Agreement. (footnote
omitted)
272. In EC - Hormones, the panel assigned the burden of showing that the measure
there was justified under Article 3.3 to the respondent, reasoning that Article
3.3 provides an exception to the general obligation contained in Article 3.1.
The panel there was of the view that it was the defending party that was
asserting the affirmative of that particular defence. We reversed the panel's
finding.192 In particular, we stated:
The general rule in a dispute settlement proceeding requiring a complaining
party to establish a prima facie case of inconsistency with a provision of the
SPS Agreement before the burden of showing consistency with that provision is
taken on by the defending party, is not avoided by simply describing that same
provision as an "exception". In much the same way, merely characterizing a
treaty provision as an "exception" does not by itself justify a "stricter" or
"narrower" interpretation of that provision than would be warranted by
examination of the ordinary meaning of the actual treaty words, viewed in
context and in the light of the treaty's object and purpose, or, in other words,
by applying the normal rules of treaty interpretation.193 (original emphasis)
273. The Panel in this case acknowledged our finding in EC - Hormones, but
concluded that it "does not have a direct bearing" on the question of the
allocation of the burden of proof under the second part of Article 2.4 of the
TBT Agreement.194 The relevant statement in the Panel Report�found in a
footnote�reads as follows:
We are cognizant of the Appellate Body's finding in EC - Hormones that, in
reference to Articles 3.1 and 3.3 of the SPS Agreement, the latter provision,
which allows Members to establish their own level of sanitary protection, does
not constitute an exception to the general obligation of Article 3.1, and that
the burden of the complaining party to establish a prima facie case of
inconsistency "is not avoided by simply describing that provision as an
'exception'". However, we consider that the Appellate Body's finding in EC -
Hormones does not have a direct bearing on the matter before us.195 (emphasis
added)
274. We disagree with the Panel's conclusion that our ruling on the issue of the
burden of proof has no "direct bearing" on this case. The Panel provides no
explanation for this conclusion and, indeed, could not have provided any
plausible explanation. For there are strong conceptual similarities between, on
the one hand, Article 2.4 of the TBT Agreement and, on the other hand, Articles
3.1 and 3.3 of the SPS Agreement, and our reasoning in EC - Hormones is equally
apposite for this case. The heart of Article 3.1 of the SPS Agreement is a
requirement that Members base their sanitary or phytosanitary measures on
international standards, guidelines, or recommendations. Likewise, the heart of
Article 2.4 of the TBT Agreement is a requirement that Members use international
standards as a basis for their technical regulations. Neither of these
requirements in these two agreements is absolute. Articles 3.1 and 3.3 of the
SPS Agreement permit a Member to depart from an international standard if the
Member seeks a level of protection higher than would be achieved by the
international standard, the level of protection pursued is based on a proper
risk assessment, and the international standard is not sufficient to achieve the
level of protection pursued. Thus, under the SPS Agreement, departing from an
international standard is permitted in circumstances where the international
standard is ineffective to achieve the objective of the measure at issue.
Likewise, under Article 2.4 of the TBT Agreement , a Member may depart from a
relevant international standard when it would be an "ineffective or
inappropriate means for the fulfilment of the legitimate objectives pursued" by
that Member through the technical regulation.
275. Given the conceptual similarities between, on the one hand, Articles 3.1
and 3.3 of the SPS Agreement and, on the other hand, Article 2.4 of the
TBT
Agreement, we see no reason why the Panel should not have relied on the
principle we articulated in EC - Hormones to determine the allocation of the
burden of proof under Article 2.4 of the TBT Agreement . In EC - Hormones, we
found that a "general rule-exception" relationship between Articles 3.1 and 3.3
of the SPS Agreement does not exist, with the consequence that the complainant
had to establish a case of inconsistency with
both Articles 3.1 and 3.3.196 We reached this conclusion as a consequence of our
finding there that "Article 3.1 of the SPS Agreement simply excludes from its
scope of application the kinds of situations covered by Article 3.3 of that
Agreement".197 Similarly, the circumstances envisaged in the second part of Article
2.4 are excluded from the scope of application of the first part of Article 2.4.
Accordingly, as with Articles 3.1 and 3.3 of the SPS Agreement, there is no
"general rule-exception" relationship between the first and the second parts of
Article 2.4. Hence, in this case, it is for Peru �as the complaining Member seeking a ruling on the inconsistency with Article
2.4 of the TBT Agreement of the measure applied by the European Communities-to
bear the burden of proving its claim. This burden includes establishing that
Codex Stan 94 has not been used "as a basis for" the EC Regulation, as well as
establishing that Codex Stan 94 is effective and appropriate to fulfil the
"legitimate objectives" pursued by the European Communities through the EC
Regulation.
276. The TBT Agreement acknowledges the right of every WTO Member to establish
for itself the objectives of its technical regulations while affording every
other Member adequate opportunities to obtain information about these
objectives. That said, part of the reason why the Panel concluded that the
burden of proof under Article 2.4 is on the respondent is because, in the
Panel's view, the complainant cannot "spell out" the "legitimate objectives" of
the technical regulation. In addition, the Panel reasoned that the assessment of
the appropriateness of a relevant international standard involves considerations
which are properly the province of the Member adopting or applying a technical
regulation.198
277. In our opinion, these two concerns are not justified. The TBT Agreement
affords a complainant adequate opportunities to obtain information about the
objectives of technical regulations or the specific considerations that may be
relevant to the assessment of their appropriateness. A complainant may obtain
relevant information about a technical regulation from a respondent under
Article 2.5 of the TBT Agreement , which establishes a compulsory mechanism
requiring the supplying of information by the regulating Member. This Article
provides in relevant part:199
A Member preparing, adopting or applying a technical regulation which may have a
significant effect on trade of other Members shall, upon the request of another
Member, explain the justification for that technical regulation in terms of the
provisions of paragraphs 2 to 4.
278. Peru expresses doubts about the usefulness and efficacy of this obligation
in the TBT Agreement . Peru argues that a Member may not respond fully or
adequately to a request for information under Article 2.5, and that, therefore,
it is inappropriate to rely on this obligation to support assigning the burden
of proof under Article 2.4 to the complainant.200 We are not persuaded by this
argument. We must assume that Members of the WTO will abide by their treaty
obligations in good faith, as required by the principle of pacta sunt servanda
articulated in Article 26 of the Vienna Convention.201 And, always in dispute
settlement, every Member of the WTO must assume the good faith of every other
Member.
279. Another source of information for the complainant is the "enquiry point"
that must be established by the respondent under the TBT Agreement . Article 10.1
of the TBT Agreement , in relevant part, provides as follows:202
10.1 Each Member shall ensure that an enquiry point exists which is able to
answer all reasonable enquiries from other Members and interested parties in
other Members as well as to provide the relevant documents regarding:
10.1.1 any technical regulations adopted or proposed within its territory by
central or local government bodies, by non-governmental bodies which have legal
power to enforce a technical regulation, or by regional standardizing bodies of
which such bodies are members or participants;
280. Indeed, the dispute settlement process itself also provides opportunities
for the complainant to obtain the necessary information to build a case.
Information can be exchanged during the consultation phase, and additional
information may well become available during the panel phase itself. On previous
occasions, we have stated that the arguments of a party "are set out and
progressively clarified in the first written submissions, the rebuttal
submissions and the first and second panel meetings with the parties"203, and that
"[t]here is no requirement in the DSU or in GATT practice for arguments on all
claims relating to the matter referred to the DSB to be set out in a complaining
party's first written submission to the panel."204 Thus, it would not be necessary
for the complainant to have all the necessary information about the technical
regulation before commencing an action under the DSU. A complainant could
collect information before and during the early stages of the panel proceedings
and, on the basis of that information, develop arguments relating to the
objectives or to the appropriateness that may be put forward during subsequent
phases of the proceedings.
281. The degree of difficulty in substantiating a claim or a defence may vary
according to the facts of the case and the provision at issue. For example, on
the one hand, it may be relatively straightforward for a complainant to show
that a particular measure has a text that establishes an explicit and formal
discrimination between like products and is, therefore, inconsistent with the
national treatment obligation in Article III of the GATT 1994. On the other
hand, it may be more difficult for a complainant to substantiate a claim of a
violation of Article III of the GATT 1994 if the discrimination does not flow
from the letter of the legal text of the measure, but rather is a result of the
administrative practice of the domestic authorities of the respondent in
applying that measure. But, in both of those situations, the complainant must
prove its claim. There is nothing in the WTO dispute settlement system to
support the notion that the allocation of the burden of proof should be decided
on the basis of a comparison between the respective difficulties that may
possibly be encountered by the complainant and the respondent in collecting
information to prove a case.
282. We, therefore, reverse the finding of the Panel, in paragraph 7.52 of the
Panel Report, that, under the second part of Article 2.4 of the TBT Agreement ,
the burden rests with the European Communities to demonstrate that Codex Stan 94
is an "ineffective or inappropriate" means to fulfil the "legitimate objectives"
pursued by the European Communities through the EC Regulation. Accordingly, we
find that Peru bears the burden of demonstrating that Codex Stan 94 is an
effective and appropriate means to fulfil the "legitimate objectives" pursued by
the European Communities through the EC Regulation.
283. We turn now to consider whether Peru effectively discharged its burden of
proof under the second part of Article 2.4 of the TBT Agreement .
B. Whether Codex Stan 94 is an Effective and Appropriate Means to Fulfil the
"Legitimate Objectives" Pursued by the European Communities Through the EC
Regulation
284. We recall that the second part of Article 2.4 of the TBT Agreement reads as
follows:
� except when such international standards or relevant parts would be an
ineffective or inappropriate means for the fulfilment of the legitimate
objectives pursued �
Before ruling on whether Peru met its burden of proof in this case, we must
address, successively, the interpretation and the application of the second part
of Article 2.4.
1. The Interpretation of the Second Part of Article 2.4
285. The interpretation of the second part of Article 2.4 raises two questions:
first, the meaning of the term "ineffective or inappropriate means"; and,
second, the meaning of the term "legitimate objectives". As to the first
question, we noted earlier the Panel's view that the term "ineffective or
inappropriate means" refers to two questions-the question of the effectiveness
of the measure and the question of the appropriateness of the measure�and that
these two questions, although closely related, are different in nature.205 The
Panel pointed out that the term "ineffective" "refers to something which is not
'having the function of accomplishing', 'having a result', or 'brought to bear',
whereas [the term] 'inappropriate' refers to something which is not 'specially
suitable', 'proper', or 'fitting' ".206 The Panel also stated that:
Thus, in the context of Article 2.4, an ineffective means is a means which does
not have the function of accomplishing the legitimate objective pursued, whereas
an inappropriate means is a means which is not specially suitable for the
fulfilment of the legitimate objective pursued. � The question of effectiveness
bears upon the results of the means employed, whereas the question of
appropriateness relates more to the nature of the means employed.207 (original
emphasis)
We agree with the Panel's interpretation.
286. As to the second question, we are of the view that the Panel was also
correct in concluding that "the 'legitimate objectives' referred to in Article
2.4 must be interpreted in the context of Article 2.2", which refers also to
"legitimate objectives", and includes a description of what the nature of some
such objectives can be.208 Two implications flow from the Panel's interpretation.
First, the term "legitimate objectives" in Article 2.4, as the Panel concluded,
must cover the objectives explicitly mentioned in Article 2.2, namely: "national
security requirements; the prevention of deceptive practices; protection of
human health or safety, animal or plant life or health, or the environment."
Second, given the use of the term "inter alia" in Article 2.2, the objectives
covered by the term "legitimate objectives" in Article 2.4 extend beyond the
list of the objectives specifically mentioned in Article 2.2. Furthermore, we
share the view of the Panel that the second part of Article 2.4 implies that
there must be an examination and a determination on the legitimacy of the
objectives of the measure.209
2. The Application of the Second Part of Article 2.4
287. With respect to the application of the second part of Article 2.4, we begin
by recalling that Peru has the burden of establishing that Codex Stan 94 is an
effective and appropriate means for the fulfilment of the "legitimate
objectives" pursued by the European Communities through the EC Regulation. Those
"legitimate objectives" are market transparency, consumer protection, and fair
competition. To satisfy this burden of proof, Peru must, at least, have
established a prima facie case of this claim. If Peru has succeeded in doing so,
then a presumption will have been raised which the European Communities must
have rebutted in order to succeed in its defence. If Peru has established a
prima facie case, and if the European Communities has failed to rebut Peru's
case effectively, then Peru will have discharged its burden of proof under
Article 2.4. In such an event, Codex Stan 94 must, consistent with the European
Communities' obligation under the TBT Agreement, be used "as a basis for" any
European Communities regulation on the marketing of preserved sardines, because
Codex Stan 94 will have been shown to be both effective and appropriate to
fulfil the "legitimate objectives" pursued by the European Communities. Further,
in such an event, as we have already determined that Codex Stan 94 was not used
"as a basis for" the EC Regulation, we would then have to find as a consequence
that the European Communities has acted inconsistently with Article 2.4 of the
TBT Agreement .
288. This being so, our task is to assess whether Peru discharged its burden of
showing that Codex Stan 94 is appropriate and effective to fulfil these same
three "legitimate objectives". In the light of our reasoning thus far, Codex
Stan 94 would be effective if it had the capacity to accomplish all three of
these objectives, and it would be appropriate if it were suitable for the
fulfilment of all three of these objectives.
289. We share the Panel's view that the terms "ineffective" and "inappropriate"
have different meanings, and that it is conceptually possible that a measure
could be effective but inappropriate, or appropriate but ineffective.210 This is
why Peru has the burden of showing that Codex Stan 94 is both effective and
appropriate. We note, however, that, in this case, a consideration of the
appropriateness of Codex Stan 94 and a consideration of the effectiveness of
Codex Stan 94 are interrelated�as a consequence of the nature of the objectives
of the EC Regulation. The capacity of a measure to accomplish the stated
objectives�its effectiveness�and the suitability of a measure for the fulfilment
of the stated objectives�its appropriateness�are both decisively influenced by
the perceptions and expectations of consumers in the European Communities
relating to preserved sardine products.211
290. We note that the Panel concluded that "Peru has adduced sufficient evidence
and legal arguments to demonstrate that Codex Stan 94 is not ineffective or
inappropriate to fulfil the legitimate objectives pursued by the EC Regulation."212
We have examined the analysis which led the Panel to this conclusion. We note,
in particular, that the Panel made the factual finding that "it has not been
established that consumers in most member States of the European Communities
have always associated the common name 'sardines' exclusively with Sardina
pilchardus".213 We also note that the Panel gave consideration to the contentions
of Peru that, under Codex Stan 94, fish from the species Sardinops sagax bear a
denomination that is distinct from that of Sardina pilchardus214, and that "the
very purpose of the labelling regulations set out in Codex Stan 94 for sardines
of species other than Sardina pilchardus is to ensure market transparency".215 We
agree with the analysis made by the Panel. Accordingly, we see no reason to
interfere with the Panel's finding that Peru has adduced sufficient evidence and
legal arguments to demonstrate that Codex Stan 94 meets the legal requirements
of effectiveness and appropriateness set out in Article 2.4 of the TBT
Agreement.
291. We, therefore, uphold the finding of the Panel, in paragraph 7.138 of the
Panel Report, that Peru has adduced sufficient evidence and legal arguments to
demonstrate that Codex Stan 94 is not "ineffective or inappropriate" to fulfil
the "legitimate objectives" of the EC Regulation. Our finding
on this issue is, however, subject to our examination of whether the Panel acted
consistently with Article 11 of the DSU. We turn to that issue now.
176 Panel Report, para 7.50. See also, Panel Report, paras. 7.52
and 7.114.
177
Ibid., para. 7.116 and footnotes 91-92 thereto.
178
Ibid., para. 7.118.
179
Ibid., para. 7.122.
180 Panel Report, para. 7.123.
181
Ibid., para. 7.122.
182
Ibid., para. 7.123.
183
Ibid., para. 7.137.
184 Codex Stan 94, supra, footnote 4, section 6.1.1(ii).
185 Panel Report, para. 7.133.
186 Panel Report, para. 7.138.
187 European Communities' appellant's submission, paras. 176-179.
188 Panel Report, para. 7.50.
189
Ibid., para. 7.51.
190 Appellate Body Report, WT/DS33/AB/R and Corr.1, adopted 23
May 1997, DSR 1997:I, 323, at 335.
191 Appellate Body Report, supra, footnote 17, para. 104.
192 Appellate Body Report, supra, footnote 17, para. 109.
193
Ibid., para. 104.
194 Panel Report, footnote 70 to para. 7.50.
195 Panel Report, footnote 70 to para. 7.50.
196 Appellate Body Report, supra, footnote 17, para. 104.
197
Ibid.
198 Panel Report, para. 7.51.
199 We note that a similar provision to Article 2.5 is found in
the SPS Agreement. Article 5.8 thereof requires a Member to provide an
explanation of the reasons for its sanitary or phytosanitary measure.
200 Peru's response to questioning at the oral hearing.
201 Appellate Body Report, US - Shrimp, supra,
footnote 50, para. 158; Appellate Body Report, Chile - Taxes on Alcoholic
Beverages, WT/DS87/AB/R, WT/DS110/AB/R, adopted 12 January 2000, DSR 2000:I,
281, para.74.
202 Article 3 of Annex B to the SPS Agreement also
requires the establishment of an "enquiry point".
203 Appellate Body Report, European Communities - Regime for
the Importation, Sale and Distribution of Bananas ("EC - Bananas III
"), WT/DS27/AB/R, adopted 25 September 1997, DSR 1997:II, 591, para. 141. See
also, Appellate Body Report, India - Patent Protection for Pharmaceutical and
Agricultural Chemical Products, WT/DS50/AB/R, adopted 16 January 1998, DSR
1998:I, 9, para. 88; and Appellate Body Report, Korea - Definitive Safeguard
Measure on Imports of Certain Dairy Products ("Korea - Dairy "),
WT/DS98/AB/R, adopted 12 January 2000, DSR 2000:I, 3, para. 139.
204 Appellate Body Report, EC - Bananas III, supra,
footnote 203, para. 145.
205 See supra, para. 261.
206 Panel Report, para. 7.116.
207
Ibid.
208 Panel Report, para. 7.118.
209
Ibid., para. 7.122.
210 Panel Report, para. 7.116.
211 We note that the Panel observed "that the European
Communities has used the terms 'ineffective' and 'inappropriate' interchangeably
throughout its oral and written statements." (Ibid., footnote 93 to para.
7.117)
212
Ibid., para. 7.138.
213
Ibid., para. 7.137. In response to questioning at the
oral hearing, the European Communities and Peru agreed that this statement of
the Panel was a factual finding.
214
Ibid., para. 4.88.
215
Ibid., para. 4.86.
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