|European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by the European Communities - Report of the Panel|
12 April 1999
EUROPEAN COMMUNITIES - REGIME FOR THE
IMPORTATION, SALE AND DISTRIBUTION OF BANANAS
- RECOURSE TO ARTICLE 21.5 BY THE EUROPEAN COMMUNITIES -
REPORT OF THE PANEL
The report of the Panel on European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by the European Communities - is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 12 April 1999 pursuant to the Procedures for the Circulation and Derestriction of WTO Documents (WT/L/160/Rev.1). Members are reminded that in accordance with the DSU only parties to the dispute may appeal a panel report. An appeal shall be limited to issues of law covered in the Panel report and legal interpretations developed by the Panel. There shall be no ex parte communications with the Panel or Appellate Body concerning matters under consideration by the Panel or Appellate Body.
TABLE OF CONTENTS
I. INTRODUCTION 1
(i) Terms of reference 1
(ii) Panel composition 2
II. MAIN ARGUMENTS 3
A. PROCEDURAL ASPECTS 3
(i) Preliminary issue concerning the establishment of this Panel 4
(ii) WTO obligations of Members during the "reasonable period of time" 6
(iii) Legal analysis of Article 23 of the DSU 7
B. CONCLUSIONS 8
III. ARGUMENTS BY THIRD PARTIES 9
A. INDIA 9
B. JAMAICA 10
C. JAPAN 10
IV. FINDINGS 12
A. TERMS OF REFERENCE 12
B. THE PARTIES TO THIS DISPUTE 12
C. THE RELIEF SOUGHT BY THE EUROPEAN COMMUNITIES 14
D. THE RELATIONSHIP OF ARTICLES 21, 22 AND 23 OF THE DSU 15
E. CONCLUDING REMARKS 15
V. CONCLUSION 16
1.1On 25 September 1997, the Dispute Settlement Body (DSB) adopted the Appellate Body report on European Communities - Regime for the Importation, Sale and Distribution of Bananas (WT/DS27/AB/R) and the panel reports1, as modified by the Appellate Body (AB) report, recommending that the European Communities bring the measures found to be inconsistent with the GATT 1994 and the GATS into conformity with the obligations of the European Communities under those agreements. On 7 January 1998, the Arbitrator, appointed in accordance with Article 21.3(c) of the DSU concluded that the reasonable period of time to implement the recommendations and rulings of the DSB in this case would expire on 1 January 1999.
1.2On 20 July 1998, the Council of the European Union adopted Regulation (EC) No. 1637/98 amending Regulation (EEC) No. 404/93 on the common organization of the market in bananas. On 18 August 1998, Ecuador, Guatemala, Honduras, Mexico and the United States acting jointly and severally, requested consultations (WT/DS27/18) with the European Communities ("EC") in relation to the implementation of the DSB recommendations in this matter. Consultations were held on 17 September 1998. These consultations did not result in a mutually satisfactory solution of the matter.
1.3On 28 October 1998, the Commission of the European Communities adopted Regulation (EC) No. 2362/98 laying down detailed rules for the implementation of Council Regulation (EEC) No. 404/93 regarding imports of bananas into the Community. Regulation 1637/98 as well as Regulation 2362/98 were implemented as from 1 January 1999. On 13 November 1998, Ecuador requested further consultations in this matter which took place on 23 November 1998 (WT/DS27/30 and Add.1). Mexico also requested consultations and was joined as a co-complainant.
1.4On 14 December 1998, the European Communities requested the establishment of a panel under Article 21.5 of the DSU with the mandate to find that the implementing measures of the European Communities must be presumed to conform to WTO rules unless their conformity had been duly challenged under the appropriate DSU procedures (WT/DS27/40). The DSB, at its meeting on 12 January 1999, decided, in accordance with Article 21.5 of the DSU, to refer to the original panel the matter raised by the European Communities. Belize, Brazil, Cameroon, Colombia, Costa Rica, C魌e d'Ivoire, Dominica, the Dominican Republic, Grenada, Haiti, India, Jamaica, Japan, Mauritius, Nicaragua, Saint Lucia, and Saint Vincent and the Grenadines reserved their third-party rights in accordance with Article 10 of the DSU.
(i)Terms of reference
1.5The following standard terms of reference applied to the work of the Panel:
"To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS27/40 the matter referred to the DSB by the EC, in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements."
1.6The Panel was composed as follows:
Chairman: Mr. Stuart Harbinson
Members: Mr. Kym Anderson
Mr. Christian H鋌erli
1.7The Panel submitted its report to the European Communities on 6 April 1999.
2.1The European Communities noted that, in accordance with Article 21.6 of the DSU, it had provided the DSB with a status report on its implementation of the recommendations and rulings of the DSB at every regular meeting of the DSB since the 23 July 1998 DSB meeting. From the beginning of the reasonable period of time, the original complainants had not ceased to affirm in the press and in the DSB their conviction that the measures first envisaged, then proposed, then adopted by the Council, then finally adopted by the Commission, did not comply with the recommendations and rulings of the DSB in this case.
2.2On 18 August 1998, Ecuador, Guatemala, Honduras, Mexico and the United States formally requested consultations within the legal framework of Article 21.5 of the DSU (WT/DS27/18). Consultations were held on 17 September 1998. However, the European Communities formally agreed to those consultations only insofar as they related to measures that had already been formally adopted and published, i.e. Regulation 1637 of 20 July 1998. The European Communities refused to engage in discussions concerning import licensing rules which not only had not yet been adopted at that time but had not even been submitted to the management committee as a preliminary step for their definitive approval by the Commission. On 13 November 1998, Ecuador requested consultations within the legal framework of Article 21.5 of the DSU (WT/DS27/30). It was joined by Mexico. These consultations concerned almost exclusively Regulation 2362.
2.3Outside these procedures, one of the original complainants, the United States, published three notices in the US Federal Register3 of proposed determination of action by imposing prohibitive (100 per cent ad valorem) duties on selected products from the European Communities. This proposed action was based on the unilateral determination by the United States that "the measures the EC has undertaken to apply as of January 1, 1999 fail to implement the WTO recommendations concerning the EC banana regime". The actions proposed were intended to be in place "beginning as early as February 1, 1999". However, the United States, supported by three other original complainants, expressed repeatedly and publicly its unwillingness to submit its own subjective views on this issue to the objective scrutiny of a panel within the multilateral framework of the WTO, in particular under Article 21.5 of the DSU.
2.4On 12 January 1999, the DSB established a panel under Article 21.5 of the DSU at the request of Ecuador, on the one hand, and the present Panel at the request of the EC, on the other hand. The other four original complaining parties (i.e. Guatemala, Honduras, Mexico and the United States) refrained from requesting a panel or from joining the procedure initiated by Ecuador. On 19 January 1999 three of the original complainants, Guatemala, Honduras and the United States, expressed their views in a letter sent to the WTO Secretariat "concerning the nature and the terms of reference" of these proceedings. However, they did not deem appropriate, on the one hand, to state their position in a formal submission to the Panel in the framework of the on-going dispute settlement procedure nor, on the other hand, to guarantee their participation in the further proceedings. The European Communities submitted further that in a letter dated 2 February 1999, the Panel considered, in reply to a request by the EC, that there was no need to provide in the Panel's timetable for a submission from the original complainants and that the Panel could not compel the original complaining parties to participate in these proceedings.
Preliminary issue concerning the establishment of this Panel
2.5In document WT/DS27/45, the WTO Secretariat officially announced that on 12 January 1999, the Dispute Settlement Body decided "in accordance with Article 21.5 of the DSU, to refer to the original panel the matter raised by the European Communities in document WT/DS27/40". This communication contained also the terms of reference of the Panel, which were expressly referred to as "standard terms of reference", as follows:
"To examine, in the light of the relevant provisions of the covered agreements cited by the European Communities in document WT/DS27/40, the matter referred to the DSB by the European Communities in that document and to make such findings as will assist the DSB in making the recommendations or in giving the rulings provided for in those agreements".
2.6In their letter of 19 January 1999 to this Panel, three of the original complainants - Guatemala, Honduras and the United States - took the following position :
"the panel finding sought by the EC (& ) does not constitute recourse to Article 21.5 but rather constitut
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