|European Communities - Regime for the Importation, Sale and Distribution of Bananas - Complaint by Ecuador - Report of the Panel|
WORLD TRADE WT/DS27/R/ECU
22 May 1997
European Communities - Regime for the Importation,
Sale and Distribution of Bananas
Complaint by Ecuador
Report of the Panel
The report of the Panel on European Communities - Regime for the Importation, Sale and Distribution of Bananas is being circulated to all Members, pursuant to the DSU. The report is being circulated as an unrestricted document from 22 May 1997 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, and that there shall be no ex parte communications with the panel or Appellate Body concerning matters under consideration by the panel or Appellate Body.
Note by the Secretariat: This Panel Report shall be adopted by the Dispute Settlement Body (DSB) within 60 days after the date of its circulation unless a party to the dispute decides to appeal or the DSB decides by consensus not to adopt the report. If the Panel Report is appealed to the Appellate Body, it shall not be considered for adoption by the DSB until after the completion of the appeal. Information on the current status of the Panel Report is available from the WTO Secretariat.
The reports of each of the Complaining parties in the dispute have identical paragraph and footnote numbering. In the Findings section of each report, however, certain paragraph and footnote numbers are not used.
TABLE OF CONTENTS
I. INTRODUCTION 1
Terms of reference 1
Panel composition 2
II. PROCEDURAL ISSUES 3
(a) Adequacy of the consultations and specificity of the request for panel establishment 3
(b) The requirement of legal interest 8
(c) Multiple panel reports 13
III. FACTUAL ASPECTS 15
(a) Banana production and trade 15
(b) The EC's common organization of the banana market 15
(i) Tariff treatment 16
(ii) Quantitative aspects, including country allocations 17
(iii) Licensing requirements 20
(c) Trade policy developments concerning bananas 24
(i) Disputes relating to bananas under the GATT 24
(ii) Framework Agreement on Bananas 24
(iii) Tariff changes 24
(iv) Lom?waiver 25
(v) Accession of Austria, Finland and Sweden to the EC 25
IV. MAIN ARGUMENTS 26
A. GENERAL 26
B. TRADE IN GOODS 28
1. GENERAL OVERVIEW OF THE CASE 28
(a) Overview of the claims presented by the Complaining parties 28
(i) Tariff issues 28
(ii) Allocation issues 28
(iii) Import licensing issues 29
(b) Overview of the responses presented by the European Communities 29
(i) Separate regimes 30
(ii) GATT schedules and Articles I and XIII in the context of the Agreement on Agriculture 30
(iii) The non-applicability of the Agreement on Import Licensing Procedures to tariff quotas 31
(iv) The non-applicability of Articles III:4 and X of GATT to border measures 32
(v) The Lom?waiver 32
2. DETAILED ARGUMENTS 34
(a) Tariff issues 34
(i) Tariff preferences for non-traditional ACP banana imports 34
Arguments of the Complaining parties 34
Arguments of the EC 35
The Lom?waiver 35
Parties' subsequent arguments - non-traditional ACP tariff preferences 52
(ii) Third-country tariff rates 54
(b) Allocation issues 59
(i) General allocations 59
Article XIII:2 of GATT 59
Arguments of the Complaining parties 59
Arguments of the EC 66
Separate regimes 66
GATT schedules and Articles I and XIII in the context of the Agreement on Agriculture 72
Parties' arguments - interpretive issues 79
Article XIII:1 of GATT 96
Article I of GATT 97
The Lom?waiver 99
(ii) Reallocation of shortfalls 102
(c) Import licensing issues 105
(i) The licensing regime as a whole 105
Arguments of the Complaining parties 105
Arguments of the EC 109
The non-applicability of the Agreement on Import Licensing Procedures to tariff quotas 109
The non-applicability of Articles III:4 and X of GATT to border measures 112
Parties' subsequent arguments - the licensing regime as a whole 114
Claims under the GATT 120
Claims under the Licensing Agreement 131
Claims under the Agreement on Agriculture 143
(ii) Operator category licence allocation 145
Claims under the GATT 147
Claims under the Licensing Agreement 159
Claims under the Agreement on Trade-Related Investment Measures 166
(iii) Activity function licence allocation 171
Licence distribution issues 171
Claims under the GATT 173
Claims under the Licensing Agreement 178
Issues concerning "over-filing" or "double-counting" 182
(iv) Export certificates 187
Claims under the GATT 187
Claims under the Licensing Agreement 192
(v) Publication of regulations and timing of licences 194
Claims under the GATT 195
Claims under the Licensing Agreement 200
(vi) Licences provided to EC banana producers 201
(vii) Hurricane licences 203
C. GENERAL AGREEMENT ON TRADE IN SERVICES (GATS) 208
Issues of scope 212
(a) The relationship between the GATS and the multilateral agreements on trade in goods 212
(b) Standard of discrimination under the MFN and national treatment obligations 216
(i) Measures affecting trade in services - Articles I:1 and XXVIII(c) 216
(ii) Measures affecting trade in services - Article XVII:1 218
(iii)Standard of discrimination: Article II 220
(c) Wholesale trade services 223
Operator category licence allocation 232
(a) Article XVII 232
(b) Article II 243
Activity function licence allocation - Articles II and XVII 245
Hurricane licences - Articles II and XVII 249
Export certificates - Articles II and XVII 250
V. ARGUMENTS PRESENTED BY THIRD PARTIES 253
ACP THIRD PARTIES 253
The Lom?Convention and the Lom?waiver 258
Article I of GATT 263
Article XIII of GATT 265
Article X of GATT and the Licensing Agreement 266
The GATS 267
The relationship between trade in goods and trade in services 270
The Lom?waiver 271
COLOMBIA, COSTA RICA, NICARAGUA AND VENEZUELA 273
Principal legal arguments 273
Subsidiary legal arguments 277
The Lom?Convention and the Lom?waiver 285
Non-applicability of the Agreement on Import Licensing Procedures to tariff quota systems 286
THE PHILIPPINES 287
Preliminary arguments 287
Specific legal arguments 288
VI. INTERIM REVIEW 290
VII. FINDINGS 292
A. ORGANIZATIONAL ISSUES 292
1. PARTICIPATION OF THIRD PARTIES 292
2. PRESENCE OF PRIVATE LAWYERS 294
B. PRELIMINARY ISSUES 295
1. ADEQUACY OF THE CONSULTATIONS 296
2. SPECIFICITY OF THE REQUEST FOR PANEL ESTABLISHMENT 297
(a) Article 6.2 and the request for establishment of the Panel 297
(b) The arguments of the parties 298
(c) Analysis of the Article 6.2 claim 299
(i) Ordinary meaning of treaty terms 299
(ii) Context 301
(iii) Object and purpose 302
(iv) Past practice 302
(v) Cure 305
3. REQUIREMENT OF LEGAL INTEREST 305
4. NUMBER OF PANEL REPORTS 307
C. SUBSTANTIVE ISSUES 309
1. THE EC MARKET FOR BANANAS: ARTICLE XIII OF GATT 309
(a) Article XIII 310
(i) Separate regimes 314
(ii) Members with a substantial interest 316
(iii) Members without a substantial interest 318
(iv) New members 319
(v) Other arguments 320
(b) The allocation of tariff quota shares to ACP countries: The Lom?waiver 320
(i) Preferential treatment required by the Lom?Convention 321
(ii) Application of the Lom?waiver to the EC's Article XIII obligations 323
(c) The allocation of tariff quota shares to BFA countries 325
(i) Inclusion of the BFA tariff quota shares in the EC Schedule 325
(ii) Agreement on Agriculture 329
(d) Tariff quota share allocations and Article I:1 331
2. TARIFF ISSUES 331
3. THE EC BANANA IMPORT LICENSING PROCEDURES 333
(a) General issues 333
(i) Scope of the Licensing Agreement 333
(ii) GATT 1994 and the Annex 1A Agreements 336
(iii) Separate regimes 338
(iv) Examination of the licensing claims 338
(b) Operator categories 339
(i) Article III:4 of GATT 339
(ii) Article 2 of the TRIMs Agreement 344
(iii) Article I of GATT 345
(iv) Application of the Lom?waiver to the EC's Article I obligations 349
(v) Article X:3(a) of GATT 353
(vi) Other claims 353
(c) Activity functions 353
(i) Article III:4 of GATT 353
(ii) Article I:1 of GATT 353
(iii) Article X:3(a) of GATT 354
(iv) Other claims 356
(d) BFA export certificates 357
(i) Article I:1 of GATT 358
(ii) Other claims 360
(e) Hurricane licences 360
(i) Article III:4 of GATT 361
(ii) Article I:1 of GATT 361
(iii) Application of the Lom?waiver 361
(iv) Article 1.3 of the Licensing Agreement 361
(v) Other claims 361
(f) Other claims 361
(i) General 361
(ii) Article 1.2 of the Licensing Agreement 361
4. THE EC BANANA IMPORT LICENSING PROCEDURES AND THE GATS 363
(a) Introduction 363
(b) General issues 364
(i) Measures affecting trade in services 364
(ii) Wholesale trade services 367
(iii) Modes of supply 369
(iv) The scope of the Article II obligation 371
(v) The scope of the Article XVII commitment 373
(vi) Effective date of GATS obligations 374
(vii)Claims by Mexico 374
(c) Operator categories 375
(i) Article XVII of GATS 375
(ii) Article II of GATS 384
(d) Activity functions 386
(i) Article XVII of GATS 386
(ii) Article II of GATS 390
(e) Export certificates 390
(i) Article XVII of GATS 391
(ii) Article II of GATS 392
(f) Hurricane licences 393
(i) Article XVII of GATS 393
(ii) Article II of GATS 395
5. NULLIFICATION OR IMPAIRMENT 396
D. SUMMARY OF FINDINGS 396
VIII. FINAL REMARKS 400
IX. CONCLUSIONS 400
I.1 On 5 February 1996, Ecuador, Guatemala, Honduras, Mexico and the United States acting jointly and severally, requested consultations with the European Communities ("the Community" or the "EC") pursuant to Article 4 of the Understanding on Rules and Procedures governing the Settlement of Disputes ("DSU"), Article XXIII of the General Agreement on Tariffs and Trade 1994 ("GATT"), Article 6 of the Agreement on Import Licensing Procedures (to the extent that it related to Article XXIII of GATT), Article XXIII of the General Agreement on Trade in Services, Article 19 of the Agreement on Agriculture (to the extent that it related to Article XXIII of GATT), and Article 8 of the Agreement on Trade-Related Investment Measures (to the extent that it related to Article XXIII of GATT) regarding the EC regime for the importation, sale and distribution of bananas established by Council Regulation (EEC) 404/931, and the subsequent EC legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreement on Bananas, which implemented, supplemented and amended that regime (WT/DS27/1).
I.2 Consultations were held on 14 and 15 March 1996. As they did not result in a mutually satisfactory solution of the matter, Ecuador, Guatemala, Honduras, Mexico and the United States, in a communication dated 11 April 1996, requested the establishment of a panel to examine this matter in light of the GATT, the Agreement on Import Licensing Procedures, the Agreement on Agriculture, the General Agreement on Trade in Services ("GATS") and the Agreement on Trade-Related Investment Measures (WT/DS27/6).
I.3 The Dispute Settlement Body ("DSB"), at its meeting on 8 May 1996, established a panel with standard terms of reference in accordance with Article 6 of the DSU (WT/DS27/7). Belize, Canada, Cameroon, Colombia, Costa Rica, C魌e d'Ivoire, Dominica, Dominican Republic, Ghana, Grenada, India, Jamaica, Japan, Nicaragua, the Philippines, Saint Vincent and the Grenadines, Saint Lucia, Senegal, Suriname, Thailand and Venezuela reserved their third party rights to make a submission and to be heard by the Panel in accordance with Article 10 of the DSU. Several of these countries also requested additional rights (see paragraph 7.4). Thailand subsequently renounced its third party rights.
Terms of reference
I.4 The 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 Ecuador, Guatemala, Honduras, Mexico and the United States in document WT/DS27/6, the matter referred to the DSB by Ecuador, Guatemala, Honduras, Mexico and the United States 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."
I.5 On 29 May 1996, the Director-General was requested by Ecuador, Guatemala, Honduras, Mexico and the United States to compose the Panel by virtue of paragraph 7 of Article 8 of the DSU.
I.6 On 7 June 1996 the Director-General announced the composition of the Panel as follows:
Chairman: Mr. Stuart Harbinson
Members: Mr. Kym Anderson
Mr. Christian H鋌erli
I.7 The Panel submitted its interim report to the parties to the dispute on 18 March 1997 and the final report on 29 April 1997.
II. PROCEDURAL ISSUES 1
II.1 In this section, the parties' arguments are set out with respect to three procedural issues: (i) the adequacy of the consultations and the specificity of the request for panel establishment; (ii) the requirement of legal interest; and (iii) multiple panel reports. The organizational matter with respect to the participation of third parties in these proceedings and presence of private lawyers in meetings of the Panel is addressed in the "Findings" section of this report. Arguments presented by third parties on their participation in these proceedings are summarized in Section V.
(a) Adequacy of the consultations and specificity of the request for panel establishment
II.2 The EC noted that consultations on the EC banana regime were held in the autumn of 1995 between the EC, a number of banana producing countries, parties to the Lom?Convention, Guatemala, Honduras, Mexico and the United States. These consultations were inconclusive and were terminated when a new round of consultations started. After Ecuador had become a WTO Member on 26 January 1996, Ecuador as well as Guatemala, Honduras, Mexico and the United States requested consultations with the EC on its banana regime by letter dated 5 February 1996 and circulated to Members as document WT/DS27/1 on 12 February 1996. It contained, in the view of the EC, only the barest outline of the complaints against the EC banana regime. Bilateral consultations were held with each of the Complaining parties on 14 and 15 March 1996 in Geneva.
II.3 The EC, being of the view that consultations were intended not only to "give sympathetic consideration" to the considerations and the questions of the Complaining parties, but also to enable the responding party to obtain a clear view of the case held against it, prepared a large number of questions in an attempt to better understand the complaints of Ecuador, Guatemala, Honduras, Mexico and the United States. These questions were transmitted on 3 April 1996. In the meantime, the EC was preparing its answers to the numerous questions posed by the Complaining parties. On 11 April 1996, however, Ecuador, Guatemala, Honduras, Mexico and the United States submitted a request for the establishment of a panel to the Chairman of the DSB (WT/DS27/6). Under these circumstances, the EC, concluding that the Complaining parties were of the view that the consultation phase was over, decided not to submit its answers to these questions nor received any answers to its own questions.
II.4 The EC considered that, although the parties to the earlier consultations did exchange questions and answers in writing, these documents could not, in the opinion of the EC, be relied upon in the present procedure. During the consultations both sides agreed that the parties would re-exchange these questions and answers from the earlier consultation so as to include them in the record of the present consultations. This would also have enabled Ecuador to obtain this material since, as a non-participant in the earlier consultations, it had no access to it. Such re-exchange of questions and answers did not take place, however, and hence these questions and answers were not part of the consultation and did not form a basis for the present dispute settlement procedure.
II.5 In the opinion of the EC, the consultation stage preceding a possible panel procedure should serve to afford the possibility to come to a mutually satisfactory solution as foreseen in Article 4.3 of the DSU. The obligation to seek such a solution could not be fulfilled unless the individual claims, of which a matter or a problem brought to dispute settlement was composed, were set out in the consultation phase of the procedure.3 The EC noted that the parties had exchanged a considerable number of questions and answers and that the oral consultations within two half-days could not possibly cover all questions and in reality were highly perfunctory, the largest part of the consultations being spent by the Complaining parties reading out identical statements. It was evident, therefore, in the view of the EC, that these consultations had not fulfilled their minimum function of affording a possibility for arriving at a mutually satisfactory solution and for a clear setting out of the different claims of which the dispute consisted.
II.6 In the view of the EC, the request for the establishment of a panel was intended to be the culmination of the preparatory stage of the dispute settlement procedure. This was not the case in this dispute. The request for the establishment of a panel was in several respects a step backward from the somewhat greater clarity provided during the consultations (a point illustrated by the EC with examples). The EC asserted that, in the case of several claims, it was not in a position to know whether the claims advanced during the consultations were maintained, altered, refined or dropped.
II.7 The EC noted that, after the request for a panel had been discussed for the second time by the DSB at its meeting on 8 May 1996, the DSB decided to establish the Panel under standard terms of reference (WT/DS27/7) which implied that the matter at issue was entirely defined in the document requesting the establishment of a panel (WT/DS27/6).
II.8 The EC claimed that this request was unacceptably vague in the light of Article 6.2 of the DSU and past practice from earlier panels. Article 6.2 of the DSU prescribed, inter alia, that the request for the establishment of a panel:
"shall ... identify the specific measures at issue and provide a summary of the legal basis of the complaint sufficient to present the problem clearly."
In the opinion of the EC, these two functions could be properly fulfilled only if the request for the establishment of a panel did not merely restate the matter at issue in its broadest terms, as did the request by the Complaining parties, but contained a list of concrete claims, i.e. brief statements which linked a specific measure (and not the whole banana regime) with the infringement of a specific rule or obligation under the WTO (and not just a whole list of provisions).
II.9 The request for the establishment of a panel thus clearly infringed, in the opinion of the EC, the terms of Article 6.2 of the DSU. It did not identify specific measures at issue - it merely cited "the regime". And it did not relate the specific measures to the alleged infringement of a specific obligation - it merely cited a list of Articles. It was therefore impossible to know which Article might be related to which specific measure and, thus, which claim was being made against the EC. The EC was of the view that the consultations in the present case had not been able to fulfil their function because the Complaining parties were not prepared to wait for a further exchange of questions and answers as agreed during the oral consultations on 14 and 15 March 1996. Hence the request was a nullity and, at the very least, the consultations should be restarted and lead to a proper request for a panel responding to the requirements of Article 6.2. The EC therefore requested the Panel to decide this issue prior to any examination of the substance of the case and prescribe any remedial action deemed necessary in limine litis. The EC argued that at the stage of the first submission procedural illegalities could still be "healed" without much damage. If, at the last stage of the proceeding before this Panel, or before the Appellate Body, the request for the establishment of a panel were ruled to be contrary to Article 6.2 of the DSU, in the view of the EC, the complications would be considerable.
II.10 The EC considered that it was time to impose discipline where it concerned the formulation of the request for the establishment of a panel. Although there were large variations in practice, such requests sometimes clearly fell below the minimum standard necessary to inform both the defending party and possibly interested third parties of the scope of the case. In the present case, Complaining parties had clearly not met the minimum requirements of Article 6.2 of the DSU and of the Salmon Panel.4
II.11 The Complaining parties responded that the EC's claims were without basis in the DSU. Referring to the text of Article 4.2 of the DSU, the Complaining parties argued that the EC was obliged to accord the Complaining parties sympathetic consideration and afford adequate opportunity for consultation regarding representations made by the Complainants. This obligation was not reciprocal. Article 4.5 of the DSU stated that Members "should attempt" to obtain a satisfactory adjustment of the matter in consultations, but it referred to "attempt" and did not require that Members succeed in settling matters bilaterally. Article 4.7 of the DSU was unconditional in providing for the establishment of a panel upon request of the Complaining party or parties after the expiration of the 60-day consultation period.5
II.12 The Complaining parties considered that they had provided the EC with ample notice and explanation of their concerns during the consultation phase going beyond any DSU requirement by providing a detailed seven-page joint statement and a hundred questions detailing the many aspects of the EC banana regime about which they had concerns. The statement and the appended "Non-Exhaustive List of Questions" identified specific measures at issue and various legal bases for concern with a degree of specificity well beyond what was normally provided in any stage before the panel procedure. The EC's current insistence that the consultations had to permit the EC to identify each and every legal argument that would be presented in the panel proceeding was, in the view of the Complaining parties, without basis in the DSU. The banana regime in the EC had in any event been the subject of exhaustive and repeated consultations, negotiations, and GATT dispute settlement procedures even before 1991. There was nowhere in the WTO agreements any requirement that the consultations be a dress rehearsal for a panel proceeding.
II.13 With reference to the EC's arguments concerning the nullity of the request for establishment of a panel, the Complaining parties argued that Article 6.2 of the DSU required all panel requests to contain two elements. First, the request should "identify the specific measures at issue". Second, it should "provide a brief summary of the legal basis of the complaint sufficient to present the problem clearly". Contrary to the EC claim, the primary qualifying emphasis of this provision was, in the opinion of the Complaining parties, brevity, continuing the prior GATT emphasis on brevity enunciated in the Montreal Rules.6 Nowhere did Article 6.2 require a detailed exposition tying each specific measure to each provision of law to be claimed by the Complaining parties. This was what submissions to the panel had to do to enable the panel to perform the task of examining particular measures in the light of the covered agreements. The Complaining parties considered that their request of 11 April 1996 complied fully with the requirement of Article 6.2. The request identified the specific measures at issue by citation to the "basic" enabling regulation and all laws, regulations and administrative measures that implemented, supplemented or amended that regulation (which numbered in the hundreds), including specifically those reflecting the BFA. The request then provided a "brief summary of the legal basis of the complaint", with a listing of the specific agreements and particular Articles implicated by the regime. All of the claims made by the Complaining parties in this dispute were covered by this request. None of the claims related to aspects of the regime that were not identified as problems in the consultations.
II.14 The Complaining parties submitted several examples of panel requests filed since 1 January 1995 that in their view reflected a level of "specificity" comparable to the request in this dispute. If any requests for establishment of a panel filed since 1 January 1995 did provide more detail, it was, in the opinion of the Complaining parties, not detail compelled by Article 6.2. If some Members saw fit to provide a more detailed exposition of the problems than that contained in the Complaining parties' request, they were free to do so, but their providing such detail did not amount to "practice" under the DSU that would dictate how Article 6.2 should be interpreted. The arguments with respect to the panel report on United States - Imposition of Anti-Dumping Duties on Imports of Fresh and Chilled Atlantic Salmon from Norway (Salmon Panel), adopted on 30 November 1992 (ADP/87), were misplaced in the view of the Complaining parties. To the extent the Salmon Panel declined to examine claims raised in that action, it did so for two reasons that were inapplicable in the current case. The first was that certain claims were outside the panel's terms of reference. The other was that various claims were not the subject of consultations and conciliation in accordance with Article 15.3 of the Agreement on Implementation of Article VI of GATT. Neither finding had any bearing on the claim that "a lack of specificity" in the request failed to meet the requirements of an entirely different agreement, the DSU.
II.15 The Complaining parties had requested the establishment of a panel at two meetings of the DSB: on 24 April and on 8 May 1996. At neither one of those meetings did the EC or any other Member complain that the request was too vague to "present the problem clearly". On these occasions, the EC representative mentioned numerous other issues, including its reservation of rights under Article 9.2 of the DSU, but did not request any further explanation of the request. The number of third parties participating in this proceeding further illustrated that other Members certainly understood the "problem" sufficiently to gauge their respective national interests in this proceeding.
II.16 The Complaining parties further argued that, as a legal matter, the EC was asking the Panel to take an action outside its terms of reference. The Panel was bound to complete its task of examining the EC measures in light of the covered agreements, as specified in those terms of reference. Those terms of reference did not permit the Panel to "dissolve itself": the DSU was not one of the agreements covered by the Panel's terms of reference. The EC argument that it needed an early decision on this issue to avoid "prejudice" was, in the Complaining parties' view, without basis. The EC had had more than adequate notice of the aspects of the regime that were of concern to the Complaining parties. If anything, the Complaining parties had only narrowed their focus since the consultations which amounted to a windfall, not prejudice, to the EC. The further contention that participating in the second meeting with the Panel and further proceedings constituted prejudice was equally misguided. Indeed, it misapprehended entirely the nature of dispute settlement proceedings under the DSU. Article 3.10 reflected the Members' understanding that:
"the use of dispute settlement procedures should not be intended or considered as contentious acts and that, if a dispute arises, all Members will engage in these procedures in good faith in an effort to resolve the dispute."
The DSU thus considered participation in dispute settlement proceedings an obligation of membership that improved trade relations, not a prejudicial process in itself. The remedy sought by the EC - additional time to defend itself - was only further proof of the opportunistic nature of this "procedural" claim. It was not likely that additional time would have changed the EC's presentation of its defence, as the first meeting of the Panel confirmed. The EC's claim of harm resulting from alleged lack of specificity should therefore be rejected.
II.17 The EC responded that the Complaining parties mischaracterized its position on this point. The EC's position was very simple: the request for the establishment did not satisfy the requirements of Article 6.2 of the DSU because of (i) lack of identification of specific measures at issue (i.e. the regime); and (ii) lack of a brief summary of the legal basis of the complaint sufficient to present the problem clearly (i.e. a list of Articles). Therefore, the request for the establishment of the Panel was null and void.
II.18 On 21 January 1996, the EC continued, Ecuador became a Member of the WTO; by 5 February 1996, the other Complaining parties had convinced Ecuador to join them and start new consultations which they requested on that day. Because of problems concerning the modalities of consultations and scheduling problems, these consultations took place only on 14-15 March 1996. Mutual promises were made to reply to long questionnaires, but before the process had run its course a request for a panel was filed. In the view of the EC, undue haste had resulted in the panel request being too brief a summary to present the problem clearly, in particular in a case where a new agreement, i.e. the GATS, was brought up for the first time in a panel procedure. As a separate identification was not made and the list of relevant Articles was so long, it was not even possible for the reader of the request to create his own link between the specific issues and the alleged infringement of a specific provision. This was at least possible in some earlier requests for establishment of panels which were at the border line of what could be deemed acceptable under Article 6.2 of the DSU.
II.19 The EC explained that in not mentioning the issue of the too summarized character of the request at the DSB meeting, the EC followed the by then well-established line that the respect for the basic procedural rules of the dispute settlement system was a task for the panels. Given that this was a well-established practice, raising the matter in the DSB and trying to prevent the DSB from establishing the panel for that reason would have been seen as a stalling tactic and onslaught on the "right to a panel" recently confirmed in the Marrakesh Agreement. Seen in this light, the argument advanced by the Complaining parties that the Panel, by ruling on Article 6.2, would be transgressing its terms of reference, was somewhat disturbing. This amounted to saying that the terms of reference prevailed over the DSU. If the Panel were not bound by what was in effect the constitution of the dispute settlement system and would not be held to apply the rules of the DSU, Members might just as well not have negotiated the DSU in the Uruguay Round. The Complaining parties had finally asserted that Article 6.2 should not be upheld because the EC had suffered no prejudice as a consequence. This position was misconceived in fact and in law. In fact, the EC had suffered a prejudice, i.e. the lack of minimal clarity handicapped the EC in the preparation of its defence, which was not unimportant given that the respondent normally had less time than the complaining Member to make its written submission. In law, procedural rules, and in particular the rule that the respondent must have a clear view of the case held against it, had a certain value in themselves. And that value should be defended by the Panel. As the "healing" measures suggested at the stage of the EC's first submission were no longer feasible at the stage of the rebuttal submissions, there was no alternative for the Panel but to draw the consequences of the serious defects inherent in this important document: nullity of this procedure.
II.20 In response to a question by the Panel, the EC analyzed, in light of Article 6.2 of the DSU, eight panel requests that were brought to the WTO (some of which with multiple Complaining parties). As a preliminary matter, the EC noted that it was puzzled as to how the WTO practice with respect to Article 6.2 could already have changed the interpretation to be given to this Article as it appeared from the (adopted) Salmon Panel report. Time had been too short and practice had been too inconsistent. In the view of the EC, several of the eight analyzed panel reports did not meet or barely met the requirements of Article 6.2 in the sense that there was a clear indication of the specific measure at issue, of the provision of the agreements allegedly infringed, and a link between the two. A considerable number of these requests, however, posed lesser problems in the light of Article 6.2 than the present panel request since they were concerned with one specific measure only or with a limited number of clearly defined measures which made it easier to link the measures to an alleged infringement if the number of provisions cited in the panel request was limited. In the present case, however, there was a total lack of specificity in the description of the measures, on the one hand, and an extremely long and unspecified list of the allegedly infringed WTO provisions, on the other hand. According to the EC, this was clearly contrary to Article 6.2 and did not fulfil the function of properly giving notice to the EC of the case held against it.
(b) The requirement of legal interest
II.21 The EC argued that in any system of law, including international law7, a claimant must have a legal right or interest in the claim he was pursuing. The rationale behind this rule was that courts existed to decide cases and not to reply to abstract legal questions; the court system (in the WTO context, the panel system) should not be burdened needlessly by cases without legal or practical consequences. Likewise, the respondent should not be forced to bear the costs and inconvenience of conducting a panel case, when the complaining Member had no legal right, or no legal or material interest in the outcome of the case. The EC submitted that in the present case the United States had no legal right or no legal or material interest in the case that it had brought under the GATT and the other Agreements contained in Annex 1A to the WTO Agreement since none of the remedies it could obtain would be of any avail to it: compensation or retaliation would not be due, since the United States had only a token production of bananas and had not traded in bananas with the EC, not even with those geographical sectors which under the old regime had maintained virtually free access or only a low tariff. Furthermore, the EC considered that a declaratory judgement would be of no interest since there was no serious indication that banana production in the United States could make exports feasible within the foreseeable future. The EC referred to the Working party report on Brazilian Internal Taxes (first report) which had made it clear, in the view of the EC, that a country must at least have potentialities as an exporter in order to be able to file a claim against another Member.8 Moreover, under the GATT/WTO system the United States could not set itself up as private attorney-general and sue in the public interest and there were no indications that the GATT/WTO system accepted an actio popularis by all Members against any alleged infringement by any other Member. There were no indications so far in the GATT/WTO system that panels were willing to give declaratory rulings at the request of Members which had no legal right or interest in such a ruling, either in the form of a potential trading interest or in the form of a right to compensation or retaliation under Article XXIII of GATT (Article 22 of the DSU). The EC concluded that, on the issues raised under the GATT and other instruments of Annex 1A, the United States had no legal right or interest in obtaining a ruling from the Panel. Therefore, the EC requested that the Panel should decide, in limine litis, that it would not rule on the issues with respect to the United States.
II.22 It was obvious to the EC that the interest of companies, such as Chiquita and Dole Foods, was not the same as a legal interest of the United States in bringing a case under the GATT. The GATT was concerned with the treatment of products, not companies or their subsidiaries. In so far as the United States had a systemic interest in the case, where it professed to be concerned about the general law-abidingness of the EC, it advanced an interest as intervenor with a general interest in the interpretation of the GATT. If the Panel were to take position on the issue of the United States' legal interest in this matter, the United States might perhaps be admitted as intervenor, i.e. third party, in the GATT-related part of the case.
II.23 The United States responded that it had a significant commercial interest in seeing the EC comply with its GATT and other WTO obligations with respect to its banana regime. Two US fruit companies, Chiquita and Dole Foods, had played a major role over many decades in developing the European market for bananas. Although these bananas were mainly grown in Latin America, US companies were seriously affected by the manner in which the EC was distributing market share opportunities on a basis that was unrelated to past imports of third-country bananas or ability to import third-country bananas. The EC's measures had the effect of constraining US companies' import, delivery, and distribution flexibility and required them to expand substantial capital just to try to restore their former business. A regime violating GATT rules could be expected to adversely affect such major participants in the market. Both companies expressed concerns about the discrimination in the EC banana regime and sought an end to it.
II.24 The United States further argued that the EC was well aware of the interests and concerns of the United States since they had been explained to the EC by diplomatic efforts that had begun over five years ago and that had intensified after two GATT panel proceedings had only resulted in additional GATT violations by the EC. The United States had reiterated its concerns during efforts to more formally negotiate a solution to these problems with the EC Commission. The EC's arguments with respect to US banana production had no bearing on this proceeding. However, the United States did produce bananas in both the state of Hawaii and in Puerto Rico, which was within the US customs territory. The Hawaiian producers had expressed their concerns that the EC banana regime was lowering the price of bananas in the free market, adversely affecting their ability to continue to produce and potentially export bananas. The United States considered that it was not for the EC to decide which producers in the world had an interest or potential to export.
II.25 As far as legal rights or interests were concerned, the United States was a Member of the WTO and a founding contracting party of the GATT. Article XXIII of GATT, as amplified in the DSU, permitted the initiation of dispute settlement proceedings when any Member was concerned about the inconsistency of another Member's measures. In fact, dispute settlement proceedings could be instituted to consider measures that were not even alleged to be inconsistent with any WTO agreement. The "interest" that a Member had to have in order to initiate proceedings was self-defined: a Member could initiate procedures whenever (in its judgement) it considered that benefits accruing to it, directly or indirectly, under the GATT were being nullified or impaired or whenever it considered, in its own judgement, that the attainment of any objective of GATT was being impeded or impaired as a result of another Member's failure to carry out its GATT obligations. This was the multilateral procedure under which governments had agreed to address such disputes.
II.26 Mexico considered that the view expressed by the EC that Mexico did not have a substantial interest in participating in this Panel as a Complaining party since its banana exports to the EC were minimal or non-existent was incorrect both from the point of view of Mexico's rights under the GATT and from the point of view of its interest in the international banana trade. It had been clearly established that it was not necessary to prove the existence of adverse effects for a panel to confirm the inconsistency of a particular measure with the provisions of the GATT. Mexico had therefore refrained from providing a more detailed explanation of the impact of the EC's regime on its banana sector. In the view of Mexico, the consistency of a measure with WTO obligations should be examined in legal terms and not in terms of its impact on the economies of other Members. Any other approach would imply, wrongly, that certain Members had more rights than others or that the interpretation of the WTO's provisions varied according to the characteristics of the countries involved in a dispute.
II.27 In order to avoid any misconception as to Mexico's interest in the international banana trade and ultimately in the EC market, Mexico made, however, the following points: (i) Mexico was currently the eighth largest banana producer in the world; (ii) total exports from Mexico exceeded 250,000 tonnes in 1992 and 1993, and fell to just under 200,000 tonnes in 1994; (iii) bananas occupied the fourth place in Mexico's fruit production in terms of area under crop, and the second after oranges in terms of both production volume and value; (iv) bananas now occupied the first place in Mexico's fruit exports; (v) an estimated 50,000 persons were directly employed in banana production in the tropical areas of Mexico, not to mention the persons indirectly employed in transport and marketing of bananas; (vi) the Soconusco region in the state of Chiapas was the most important banana exporting region of Mexico (it was well known that Chiapas was one of the poorest rural states in the country); (vii) bananas provided the only activity of the port Francisco I. Madero, the only port in Chiapas; and (viii) the international banana trade was of vital importance to the recovery of investment in the banana producing regions. With respect to services, Mexico argued that its legal interest in participating in the proceeding did not depend on the market share of its service suppliers, but that in any event, a major banana distribution company, Del Monte, remained in Mexican ownership.
II.28 The EC subsequently clarified its position regarding Mexico's legal interest in this dispute with the statement that, although Mexico had never exported bananas to the EC other than in symbolic quantities, the EC did not contest the legal interest of Mexico in this procedure under the GATT since it clearly was a potential exporter of bananas to the EC with a considerable capacity.
II.29 The Complaining parties considered that the manner in which the EC had continuously and increasingly defied the rules of the international trading system, affecting so many countries, impeded the objectives of the GATT, and of the WTO Agreement, to eliminate discrimination in international commerce.
II.30 With respect to this claim, the United States noted that with each GATT proceeding and each opportunity to reform its regime, the EC had only added new layers of discrimination against imports from third countries. In the view of the United States, this pattern was unprecedented in postwar international commerce.
II.31 The Complaining parties noted that the nature and scope of the Panel's inquiry was set by its terms of reference. All the Complaining parties' claims before the Panel fell within its terms of reference. Those terms did not provide authority to the Panel simply not to consider the Complaining parties claims. Moreover, the DSU had no locus standi limitation. The WTO agreements at issue in this dispute and the DSU set forth comprehensive, detailed rules and procedures governing WTO dispute settlement. Had the DSU drafters intended to institute a limitation of the sort being advanced by the EC, they would have done so. Instead, Article 3.7 of the DSU simply requested that:
"Before bringing a case, a Member shall exercise its judgement as to whether action under these procedures would be fruitful."
The DSU in effect already recognized that recourse to dispute settlement under the WTO agreements was self-limiting in that a Member would not initiate and pursue a resource-intensive proceeding unless it considered itself adversely affected; it respected each Member's determination in that regard.
II.32 The Complaining parties considered that the findings that would result from this proceeding were necessary to bring about a positive solution to the dispute. It was accordingly clear that all five Complaining parties were fully within their legal rights to assert all claims being advanced in this action with respect to both goods and services, and to benefit from the Panel's findings. The Complaining parties were not standing in the place of others, in actio popularis, as the EC suggested. The Complaining parties were raising issues in their capacity as Members of the WTO, and sought EC compliance with specific disciplines which the EC had, in the WTO agreements, agreed to submit to dispute settlement proceedings for interpretation in accordance with the DSU.
II.33 Where the DSU addressed nullification and impairment, it did not address rights to engage in dispute settlement, nor did it limit the panel's consideration of the extent to which the measures at issue violated the agreements. Referring to Article 3.8 of the DSU, the Complaining parties argued that this provision defined nullification and impairment quite broadly, to cover any "adverse impact" on a Member, presupposing a prior finding of an infringement. The kind of economic predictions that the EC would require to determine "trade potentiality" would, in the view of the Complaining parties, involve very difficult and speculative calculations of the type panels had wisely eschewed. From a global perspective, the EC approach would protect only current exporters or investors, at the expense of firms that might later invest in the country, or goods that might later be produced for export in the absence of trade or investment barriers. Such a rule could have a particularly adverse effect on developing countries. It was essential for emerging economies to guard future trade opportunities even before "potentialities" became apparent. Otherwise, opportunities to promote trade and development could be forever limited or foreclosed. Since one of the basic objectives of the GATT was to raise the standard of living and progressively develop the economies of all Members, particularly developing country Members,9 governments had to have the opportunity to seek dispute settlement proceedings as they saw fit in order to preserve their potential interests.
II.34 The Complaining parties submitted that as recently as 1993, in the panel report on United States -Restrictions on Imports of Tuna (Tuna Panel),10 the EC had argued that any time a country produced a product, even if the application of another country's measure to its exports was only hypothetical, the potential effect on price in its market gave rise to a "legal interest". The EC had stated that it was challenging US trade sanctions that were not applicable to the EC on the basis that:
"It is clear that such sanctions can have an enormous impact on third countries, especially when fish and fish products normally exported to the United States have to be sold on other markets. It is primarily for that reason that the EC has an interest in seeking the condemnation [by the panel]."
The EC had later affirmed that its principal concern was with potential price depression in its own market resulting from global trade diversion. The EC also had gone so far as to say that even a tariff binding provided benefits to non-suppliers. At the first meeting with the panel in that dispute, the EC had acknowledged that the two measures it was challenging were "presently not applicable to the Community," but had admonished that:
"The GATT does not protect actual trade flows, but trading opportunities created by tariff bindings and other rules. Even though a contracting party is not a principal supplier at all (perhaps even a non-supplier), it profits from the tariff concessions concluded between principal suppliers."
The Complaining parties concluded that as a factual matter, by such a standard, the nullification and impairment issue would be conclusively resolved with respect to all the Complaining parties. With respect to goods, the United States produced more bananas than several of the EC's domestic and ACP supplying sources; with respect to services, all the Complaining parties had banana service suppliers within their own territories that were or would be affected by measures discriminating against foreign service suppliers in the EC. More to the point, however, the DSU and WTO agreements did not permit the EC or a panel to limit recourse to dispute settlement proceedings to only some Members whom the EC might consider to have "potential trade" or whatever other concepts the EC might wish to superimpose on the DSU on the basis of so-called "natural justice". Such an approach would fundamentally undercut the multilateral nature of these agreements.
II.35 The EC responded that it contested the legal (and material) interest of the United States in obtaining a panel ruling under the GATT. In turn, the United States had contested this but did so from the angle of formal requirements of standing or admissibility. This was perhaps understandable since in the common law countries the distinction between absence of the formal requirements for standing and the lack of legal interest to sue was often not sharply made. Both were called "standing". However, in the opinion of the EC, its reference to the maxim "point d'int閞阾, point d'action" should have made things clear to the United States. In any case, the EC failed to see how affirmations of the United States fulfilling the formal requirements to appear before the Panel could detract from the EC's demonstration that the United States could not possibly derive any legal or material benefit from its case under the GATT (no compensation, no retaliation, whilst a declaratory judgement was of no interest to the United States either).
II.36 The EC noted that according to official US statistics, the United States for many years has not, and does not now, export bananas. The EC further noted that it did not contest the accuracy of these official US statistics. The EC argued that the United States had claimed that, although the United States had no information that would contradict US export figures (which were nil), import statistics were more reliable and these showed that the United States had exported over 1,000 tonnes of bananas annually to the EC since 1990. In the view of the EC, this was a misrepresentation of the facts. It was well-known and accepted that the United States did not export bananas and that the relevant US statistics were correct. Furthermore, EC import statistics did not show the origin of bananas, but their provenance. This meant that a shipload of bananas from Costa Rica, for example, which first might have headed for a US port and subsequently been bound for the EC would be registered as of US provenance. Or, as another example, intra-EC trade showed significant banana imports into France from the Benelux countries. This clearly proved that import statistics registered the countries of provenance, not of origin (since the Benelux countries did not produce any bananas). The EC noted that the United States had also submitted FAO data on production and exports, according to which the United States had produced between 5,126 and 6,210 tonnes annually between 1990 and 1995, but had exported between 337,365 tonnes and 383,216 tonnes annually in the same period. In the view of the EC, this again demonstrated how misleading statistics relying on aggregate imports from the rest of the world might be. According to the EC, any trade from Puerto Rico was obviously with the US mainland and other US territories, such as the Virgin Islands. Since this was a situation that had existed for many years, the EC was of the view that the United States was not a potential entrant in the banana trade, could not possibly suffer any nullification or impairment, did not even have an interest in a declaratory judgement because it could not take advantage of the possible competitive opportunities and, hence, had no legal interest in a ruling under the GATT.
II.37 The United States submitted that it had no basis for contradicting FAO figures that showed exports of bananas from Puerto Rico, and that it did not possess the administrative ability to ascertain its export quantities with the same precision that it had with respect to imports.
II.38 The EC argued that the question of legal or material interest in this case was a serious matter and deserved a serious answer. This was best demonstrated by the United States reverting to the Tuna Panel. The EC's approach in the Tuna Panel proceeding was entirely consistent with the EC's present approach. The EC had argued in its second submission in the Tuna Panel case: "... potential entrants into a trade have a legitimate interest in a breach of GATT provisions". In the present case, the EC considered that the United States had demonstrated over many years, by not entering the trade in bananas, that it was not a potential entrant as referred to in the Tuna Panel.
II.39 The United States observed with respect to the Tuna Panel proceeding that the EC had challenged three US measures, the third of which had no potential effect on any EC exports, and that the EC had explained its "legal interest" in that particular measure solely on the basis of collateral price effects on products sold in its own market.
II.40 The EC argued further that the Complaining parties were hiding behind a formalistic approach to nullification and impairment. In the view of the EC, it was logical to apply the rule of lack of legal interest, if one could already see at an early stage that nullification and impairment would not occur. It had demonstrated that there was no such interest, not even in terms of a declaratory judgement. Moreover, it was not necessary to engage in "difficult and speculative calculations" in order to see that the United States had no trade interest in the matter.
II.41 The EC argued that, even if the Panel were not to accept the Community's argument on the lack of a legal right or interest of the United States to pursue the case under the GATT, the United States had not suffered any nullification or impairment under Article XXIII of GATT. If in the present case an infringement of the GATT were to be found, it was, unlike in other cases, not difficult to rebut the presumption of nullification or impairment: the United States had never exported any bananas to the EC and it did not do so, not because it was blocked in any way by the Community's measures, but because it did not have the capacity to export and, through a combination of climatic and economic reasons, was unlikely to have such capacity in the near or medium term. Under these circumstances, the United States could not be considered to suffer nullification or impairment as a result of the Community's measures under the banana regime.
(c) Multiple panel reports
II.42 The EC argued that the present procedure was a procedure with multiple Complaining parties and hence the EC had the right to request that the Panel organize its examination and present its findings to the DSB in such a manner that the rights, which the EC would have enjoyed had separate panels examined the complaints, were in no way impaired. In particular, the EC had a right to a separate report on each complaint, if it so requested (Article 9.2 of the DSU). The EC made such a request at the DSB meeting of 8 May 1996. In the course of this proceeding, the EC had reiterated this request and had asked the Panel to prepare four separate reports, with the reports for Guatemala and Honduras being joined, since they had filed a joint submission.
II.43 Referring to the text of Article 9.2 of the DSU, the Complaining parties conceded that the DSU appeared to require the Panel to accede to the EC's request, if the EC insisted on separate panel reports - in spite of the administrative burden on the Panel and the Secretariat, and the potential waste of resources. If the EC continued to insist on separate reports, the Complaining parties would assume that, in keeping with a general policy favouring uniformity of results, the Panel's four different reports would make the same findings and conclusions with respect to the same claims. Past panels had accomplished this with ease.11 However, the Complaining parties believed that there were several reasons why the rights which the EC "would have enjoyed" in separate proceedings could be satisfied by a single report. As the Complaining parties' first submissions, their joint oral presentation of 10 September 1996, and the rebuttal submission made clear, with the exception of the tariff rates being challenged by Guatemala and Honduras, all the Complaining parties were challenging the same aspects of the EC banana regime. A single panel report could easily identify the separate claims,12 if any, made by each country, since the claims all related to the same measures. Ecuador's separate legal claim under Article 4.2 of the Agreement on Agriculture was based on the same aspects of the EC's regime as the claims made by the other Complaining parties. Such an approach would preserve any rights the EC would have had with separate reports. The different "legal situations" of any of the Complaining parties were, in the opinion of the Complaining parties, irrelevant to the Panel's ability to carry out its task: to examine the measures identified by the Complaining parties in light of the covered agreements.
II.44 The EC replied that the Complaining parties had deliberately followed a course during this procedure of effacing the differences between them. In their second submission they presented, in a single submission, the claims made by different Complaining parties as if they had been made by all. There was thus a constant threat of confusion about which of the Complaining parties claimed what. It was very important to recall that different Complaining parties had made different claims (especially with regard to services) and that they were in different legal situations (especially with respect to legal interest). The common second submission even seemed to take the position that in situations, where there had been a claim only by one Complaining party, such claim was extended to all. This should be firmly rejected. According to the EC: (i) Ecuador had made claims with respect to both goods and services. These claims were contested by the EC on their merits. Ecuador was the one country making a claim under Article 4.2 of the Agreement on Agriculture; (ii) Guatemala and Honduras had made no claims on services; their claims in the first submission related only to goods. The EC contested the claims with respect to goods on their merits. Guatemala was the only country making a claim under Article II of GATT; (iii) Mexico had made claims on goods and services, but its claims on services in the first submission were extremely limited and totally unsubstantiated. The EC contested the claims in both domains on their merits; (iv) the United States had made claims on trade in goods and on trade in services. The EC contested the claims on trade in goods for reasons of lack of legal interest on the part of the United States. The United States claims on services were contested on their merits.
II.45 The EC further argued that the Complaining parties were in very diverse legal positions as demonstrated in the foregoing paragraph. If there was one situation in which the right to separate reports in the case of multiple complaining parties had a function, it was in the present case, as it was far from clear that the Panel could reach the same findings and conclusions with respect to the same claims for all Complaining parties. It was of great importance for the EC that it be clearly established at the end of this procedure which of the Complaining parties had seen which claims accepted by the Panel and which not. In these circumstances, the EC considered it only logical to invoke what was its perfect right under Article 9.2 of the DSU.
II.46 The Complaining parties considered that the EC had misstated the nature of their claims. All five were making all the claims made in their joint presentations, both with respect to goods and services. While some had made one or two additional claims in the goods area, these were minimal.
III. FACTUAL ASPECTS
III.1 The complaint examined by the Panel relates to the EC's common market organization for bananas introduced on 1 July 1993.
(a) Banana production and trade
III.2 World production of bananas in 1995 is estimated at 54.5 million tonnes (FAO). The largest producer countries were India (9.5 million tonnes) and Brazil (5.7 million tonnes) followed by Ecuador (5.4 million tonnes), China (3.3 million tonnes) and the Philippines (3.2 million tonnes). Banana production of the Complaining parties, other than Ecuador, was as follows: Mexico 2.1 million tonnes, Honduras 0.8 million tonnes, Guatemala 0.5 million tonnes and the United States (including Puerto Rico) 54,500 tonnes.13 In 1994 (the most recent year for which FAO data are available) the largest exporters were: Ecuador (2.35 million tonnes), Costa Rica (2 million tonnes), Colombia (1.7 million tonnes), the Philippines (1.2 million tonnes) and Panama (0.7 million tonnes). According to the same source, Honduras, Guatemala and the United States14 each exported 0.4 million tonnes and Mexico 0.2 million tonnes.
III.3 In 1994, the EC was the world's second largest importer of bananas, after the United States (3.7 million tonnes) and followed by Japan (0.9 million tonnes).15 According to data submitted by the EC, supplies of fresh bananas in the EC - 12 totalled approximately 3.5 million tonnes in 1994, 2.1 million tonnes of which originated in Latin American countries and 727,000 tonnes in African, Caribbean and Pacific (ACP) countries that are parties to the Lom?Convention. The leading suppliers of Latin American bananas to the EC were Costa Rica, Ecuador, Colombia, Panama and Honduras (in descending order).16 The leading suppliers of ACP bananas to the EC were Cameroon, C魌e d'Ivoire, St. Lucia, the Dominican Republic, Jamaica, Belize and Dominica (in descending order). For many ACP countries, banana exports to the EC represent a very high proportion of their total banana exports (see the Attachment to this report). Domestic EC producers supplied, according to the EC, approximately 645,000 tonnes of the bananas consumed in the EC, with the producing areas being the Canary Islands, Martinique, Guadeloupe, Madeira, the Azores and the Algarve, and Crete and Lakonia. The conditions of production differ among all countries and so do the costs of production.
(b) The EC's common organization of the banana market
III.4 The common market organization for bananas, as established by Council Regulation (EEC) 404/93 ("Regulation 404/93"), replaced the various national banana import regimes previously in place in the EC's member States. Subsequent EC legislation, regulations and administrative measures implemented, supplemented and amended that regime.
III.5 Under the previous national import regimes, France, Greece, Italy, Portugal and the United Kingdom restricted imports of banana by means of various quantitative restrictions and licensing requirements. Spain maintained a de facto prohibition on imports of bananas.17 The French market was supplied principally from the overseas departments of Guadeloupe and Martinique, with additional preferential access granted to the ACP States of C魌e d'Ivoire and Cameroon. The United Kingdom granted preferential access to bananas from the ACP States of Jamaica, the Windward Islands (Dominica, Grenada, St. Lucia and St. Vincent and the Grenadines), Belize and Suriname. Bananas from ACP countries were permitted duty-free into all EC member States. The Spanish market was almost exclusively supplied by domestic production from the Canary Islands. A major part of Portuguese supply came from Madeira, the Azores and the Algarve, with additional volumes being imported from Cape Verde and any remaining requirements being imported from third countries. The Greek market was in part supplied by bananas from domestic sources (Crete and Lakonia) and in part by third countries. Italy offered preferential access to bananas from Somalia. Belgium, Denmark, Germany, Luxembourg, Ireland and the Netherlands did not apply quantitative restrictions and, except for Germany, used a 20 per cent tariff as the sole border measure (paragraph 3.31 below refers). These countries almost exclusively imported bananas from Latin America. Germany had a special arrangement, set out in the banana protocol of the Treaty of Rome, permitting duty-free imports of third-country bananas reflecting the level of estimated consumption.
III.6 Regulation 404/93 consists of five separate titles. Titles I to III regulate the internal aspects of the common market organization. Title I provides that common quality and marketing standards for bananas are to be established in subsequent regulations. Title II contains rules concerning producers' organizations and "concentration mechanisms" to promote the establishment of organizations for the purposes of, inter alia, concentrating supply, regulating prices at the production stage, and improving EC production structures and quality. Title III establishes EC assistance for the domestic banana sector. Under this title, members of recognized EC producer organizations (and individual producers under certain circumstances) are eligible for compensation of any income loss resulting from the implementation of the EC banana regime, the maximum quantity for such compensation being fixed at 854,000 tonnes of bananas for the EC as a whole.
(i) Tariff treatment
III.7 Title IV, which regulates trade with third countries, establishes three categories of imports: (i) traditional imports from twelve ACP countries18; (ii) non-traditional imports from ACP countries which are defined as both any quantities in excess of traditional quantities supplied by traditional ACP countries and any quantities supplied by ACP countries which are not traditional suppliers of the EC; and (iii) imports from third (non-ACP) countries. The EC applies the following tariffs to these banana imports:
EC tariff treatment of banana imports
Category of banana imports
Traditional ACP bananas
Bananas within country-specific quantitative limits totalling 857,700 tonnes established for each of 12 ACP countries.
Non-traditional ACP bananas
Either ACP imports above the traditional allocations for traditional ACP countries or any quantities supplied by ACP countries which are non-traditional suppliers.
Duty-free up to 90,000 tonnes, divided into country-specific allocations and an "other ACP countries" category;
ECU 693 per tonne for out-of-quota shipments in 1996/97.
Imports from any non-ACP source.
ECU 75 per tonne up to 2.11 million tonnes as provided in the EC Schedule. An additional 353,000 tonnes were made available in 1995 and 1996. Country-specific allocations were made for countries party to the Framework Agreement on Bananas (BFA), plus an "others" category19;
ECU 793 per tonne for out-of-quota shipments in 1996/97.
(ii) Quantitative aspects, including country allocations
(1) Traditional ACP imports
III.8 Imports of bananas from the twelve traditional ACP countries enter duty-free up to the maximum quantity fixed for each ACP country (see table below which also includes allocations for non-traditional ACP countries).20 These allocations collectively amount to 857,700 tonnes. These quantities are not bound in the EC Schedule. There is no provision in the EC regulations for an increase in the level of traditional ACP allocations.
Allocations for duty-free banana imports from ACP countries
Traditional quantities as set out in EC Regulation 404/93 (tonnes)
Non-traditional quantities as set out in EC Regulation 478/95 (tonnes)
St. Vincent and the Grenadines
(2) Non-traditional ACP and third-country imports
III.9 Imports of non-traditional ACP bananas and bananas from third countries are subject to a tariff quota (also referred to by the EC as the "basic tariff quota") of, originally, 2 million tonnes (net weight). This tariff quota was increased to 2.1 million tonnes in 1994 and to 2.2 million tonnes as of 1 January 1995. These tariff quota quantities were bound in the EC Uruguay Round Schedule.22 The tariff quota can be adjusted on the basis of a "supply balance" to be derived from production and consumption forecasts prepared in advance of each year.23 In 1995 and 1996, a volume of 353,000 tonnes was added to the tariff quota as a result of "consumption and supply needs" resulting from the accession of three new EC member States, Austria, Finland and Sweden. This additional volume is not bound in the EC Schedule. In practice, however, the EC's tariff quota for non-traditional ACP and third-country banana imports was increased to 2.553 million tonnes.24
III.10 Of the tariff quota referred to above, 90,000 tonnes are reserved for duty-free entries of non-traditional ACP bananas. This volume is bound in the EC Schedule as a result of the BFA. By regulation, the EC allocated this import volume largely among specific supplying countries (see table in paragraph 3.8 above).25
III.11 Under the terms of the BFA, the EC allocated in its Schedule specific shares of the bound tariff quota of 2.1 million tonnes in 1994 and 2.2 million tonnes in 1995, respectively, as follows.26
BFA allocations under the bound tariff quota for third-country and
non-traditional ACP banana suppliers
(1994) 46.32 %
(1995) 46.51 %
Dominican Republic and other ACP countries concerning non-traditional quantities
III.12 The BFA also provides that, "In case of force majeure, a country listed in paragraph 3.11 above, may, on the basis of an agreement notified in advance to the Commission, fulfil all or part of its quota with bananas originating in another country listed in paragraph 3.11 above. In this case, the deliveries from the two countries concerned shall be adjusted accordingly in the following year."27
III.13 Furthermore, "If a banana exporting country with a country quota informs the Community that it will be unable to deliver the quantity allocated to it, the short-fall shall be reallocated by the Community in accordance with the same percentage shares indicated under paragraph 3.11 above (including 'others'). However, countries with country quotas may jointly request and the Commission shall agree to a different allocation amongst those countries."28
III.14 The EC also undertook to allocate any increase in the EC tariff quota in proportion to the shares set out in paragraph 3.11, including to "others". However, according to the BFA, "... countries with country quotas may jointly request and the Commission shall agree to a different allocation amongst those countries."29
(3) Hurricane licences
III.15 From November 1994 to May 1996, the EC issued 281,605 tonnes of supplemental "hurricane licences". Hurricane import volumes enter in addition to the 2.553 million tonne tariff quota and are subject to the third-country (non-ACP) in-quota tariff (ECU 75 per tonne). Hurricane licences may be used to import bananas from any source.30
(iii) Licensing requirements
III.16 Imports of both traditional ACP and non-traditionalACP/third-country bananas are subject to licensing procedures.
III.17 According to Commission Regulation (EEC) 1442/93 ("Regulation 1442/93"), banana imports into the EC are managed on a quarterly basis. For each of the first three quarters in any year, "indicative quantities" are established based on past trade patterns, seasonal trends, and the supply and demand balance prevailing in the EC market. These indicative quantities determine the volumes of traditional ACP bananas and non-traditional ACP/third-country bananas, respectively, that are available for a given quarter for the purpose of issuing import licences.31 The import volumes thus available are divided proportionally among origins in accordance with the allocations indicated in the tables in paragraphs 3.8 and 3.11 above.32 The licences available in the fourth quarter of any calendar year are determined by subtracting those issued in the first three quarters from the total quantity available for each origin. Import licence applications are to be lodged with the competent authority of a EC member State within a specified period of time for the purpose of obtaining a licence for the subsequent quarter.33 In the case of "unused" quantities covered by licences, there is a procedure for reallocation to the same operators in any subsequent quarter.34
(1) Traditional ACP imports
III.18 Licence applications for imports of traditional ACP bananas must state the quantity and origin from which operators intend to source their bananas. Applications are also required to be accompanied by an ACP certificate of origin testifying to the status as traditional ACP bananas.35 When licence applications exceed the indicative quantities of traditional bananas fixed for a particular country of origin, a single reduction coefficient is applied to all applications (a reduction coefficient serves to reduce importers' licence applications proportionally to the available volume).36
III.19 Licences are issued by the competent member State authority no later than the 23rd day of the last month of the preceding quarter (where that day is not a working day, the licences are issued on the first subsequent working day). The validity of import licences expires on the seventh day following the end of the quarter in question.
(2) Non-traditional ACP and third-country imports
III.20 Import licences for third-country bananas and non-traditional ACP bananas are allocated on the basis of several cumulatively applicable procedures, including: (i) allocation of licences based on three operator categories; (ii) allocation of licences according to three activity functions; (iii) export certificate requirements for imports from Costa Rica, Colombia and Nicaragua; and (iv) a two-round quarterly procedure to administer licence applications.
III.21 Operator categories: Under the EC's operator category rules, import licences are distributed among three categories of operators based on quantities of bananas marketed during the latest three year period for which data are available (see table below).37 As operators in Category C ("newcomers") do not have reference quantities based on past trade, their allocation is dependent on the volume of licence applications the newcomer portion of the tariff quota.38 Category A and B licences are transferable (tradeable) among operators, including to operators in Category C. Category C licences are, however, not transferable to Categories A and B. Transferred licences are taken into account in establishing reference quantities.39
Operator categories under the tariff quota for third-country/non-traditional ACP imports
Allocation of import licences allowing the importation of bananas at in-quota rates
Category A: operators that have marketed third-country and/or non-traditional ACP bananas.
Average quantities of third-country and/or non-traditional ACP bananas marketed in the three most recent years for which data are available.
Category B: operators that have marketed EC and/or traditional ACP bananas.
Average quantities of traditional ACP and/or EC bananas marketed in the three most recent years for which data are available.
Category C: operators who started marketing bananas other than EC and/or traditional ACP bananas as from 1992 or thereafter ("newcomer category").
Divided pro rata among applicants.
III.22 Activity functions: The operator Categories A and B are further subdivided into three types of qualifying entities ("activity functions"), as set forth in the table below. In order to qualify as Category A and/or B operators, economic agents must have performed at least one of these activities in "marketing"41 bananas during the rolling three-year reference period (i.e. the period determining their reference quantities; for 1993, the years 1989-91). In addition, operators must be established in the EC and have traded a minimum of 250 tonnes of bananas in any one year of the reference period.42
Activity function system under the tariff quota for third-country/non-traditional ACP imports
"the purchase of green third-country bananas and/or ACP bananas from the producers, or where applicable, the production, and their subsequent consignment to and sale of such products in the Community"
57 per cent
"secondary importer or customs clearer"
"as owners, the supply and release for free circulation of green bananas and sale with a view to their subsequent marketing in the Community; the risks of spoilage or loss of the product shall be equated with the risk taken on by the owner"
15 per cent
"as owners, the ripening of green bananas and their marketing within the Community"
28 per cent
III.23 The weighting coefficient assigned to each type of activity function multiplied by the average quantity of bananas marketed by each operator of Categories A and B in the three most recent years, determines the individual operator's reference quantity.44 According to Regulation 1442/93, the weighting coefficients are designed to reflect the level of commercial risk borne by operators for each of the activities in the marketing chain for bananas.45
III.24 Operators are expected to identify the activity function or functions upon which they are making their claim of licence entitlement (operators may have performed more than one activity and thus obtain a weighting coefficient of up to one hundred per cent). The reference quantities are, after the application of a single provisional reduction coefficient for operator Categories A and B, respectively, used in calculating an individual operator's provisional annual entitlement to banana import licences.46 These entitlements are normally determined a few months before the beginning of the applicable year, although they may be, and generally are, subject to changes throughout the year (including the application of a final reduction coefficient).47 In practice, the total reference quantities established by the EC for each of the marketing years since the introduction of the common market organization for bananas have exceeded the volume of the tariff quota available for distribution amongst operators so that reduction coefficients were applied.
III.25 Export certificates: Pursuant to the BFA, supplying countries that have country allocations may deliver special export certificates for up to 70 per cent of their allocations. Colombia, Costa Rica and Nicaragua have chosen to issue such certificates. According to EC regulation, presentation of such certificates ("export licences") by Category A and Category C operators constitutes a prerequisite for the issuance, by the EC, of licences for the importation of bananas from these countries.48
III.26 Two-round quarterly licence applications: Regulation 478/95 (as amended) establishes two rounds of import licence applications within each quarter. In the first round, A and B operators can request licences up to their quarterly entitlements. Category C operators may apply for their full annual entitlement in any given quarter. In their applications, companies must designate the source from which they plan to import and the desired volumes. Category A and C operators importing from BFA countries other than Venezuela must attach special export certificates. All licence applications are transmitted by the competent authorities of the EC member States to the EC Commission which, if the applications for any country of origin exceed the indicative quantity available for that origin (in any given quarter), applies a country-specific reduction coefficient which reduces such applications proportionally. "First round" licences are to be issued by the competent authorities by the 23rd day of the month preceding the relevant quarter (where that day is not a working day, the licences are issued on the first subsequent working day).
III.27 After the first round, the EC publishes the sources and quantities that were not exhausted (so far, mainly quantities from BFA countries and certain non-traditional ACP countries49) for purposes of a second round allocation. Those operators whose initial licence applications are scaled back by a reduction coefficient have the option to participate in a second round of applications in respect of the difference between their original application and their allocation for one of the origins where the allocations are not exhausted.50 After the EC publishes the first round reduction coefficients, by the 23rd day of the month prior to the beginning of the quarter, the operators have ten days to re-apply for the second round. On the basis of applications received, the EC Commission determines, if necessary, reduction coefficients and then publishes the quantities for which licences may be issued in the second round. In practice, publication of these quantities often occurred two weeks into the quarter for which the licences were issued.51 Both "first" and "second" round licences are valid until the seventh day of the month following the end of the quarter.
(3) Hurricane licences
III.28 Hurricane licences are granted, on an ad hoc basic, to operators who "include or directly represent" a producer adversely affected by a tropical storm and are thus unable to supply the EC market.52 As noted above, hurricane licences may be used to import bananas from any source. Bananas imported with hurricane licences may be counted as reference quantities for future eligibility for Category B licences.
(c) Trade policy developments concerning bananas
(i) Disputes relating to bananas under the GATT
III.29 Elements of the present EC market organization for bananas were the subject of a complaint by Colombia, Costa Rica, Guatemala, Nicaragua and Venezuela in 1993. The panel which was established by the GATT CONTRACTING PARTIES to examine the matter submitted its report on 11 February 1994 (second Banana panel).53 Prior to the establishment of the common market organization for bananas on 1 July 1993, the banana regimes of individual EC member States were the subject of a complaint by the same countries mentioned above. The resulting GATT panel (first Banana panel) issued its report on 3 June 1993.54 Neither panel report was adopted by the GATT CONTRACTING PARTIES.
(ii) Framework Agreement on Bananas (BFA)
III.30 In 1994, the EC negotiated the BFA with Colombia, Costa Rica, Venezuela and Nicaragua. As described above, the BFA contains provisions concerning the size of the basic tariff quota, the in-quota tariff (ECU 75 per tonne), country-specific allocations and transferability of those allocations, the 90,000 tonne allocation for non-traditional ACP bananas, and export certificates. The four Latin American parties to the BFA agreed not to pursue the adoption of the report of the second Banana panel. Guatemala, the fifth complaining contracting party to the second Banana panel, is not a party to the BFA. The BFA was incorporated into the EC's Uruguay Round Schedule in March 1994.55 The BFA came into force on 1 January 199556 and its functioning is scheduled to be reviewed "before the end of the third year" with full consultations with Member Latin American suppliers. The BFA is applicable until 31 December 2002.57
(iii) Tariff changes
III.31 From 1963, the EC had a consolidated tariff of 20 per cent ad valorem on bananas. Initial negotiating rights were held by Brazil. With the introduction of the common market organization for bananas on 1 July 1993, a tariff quota was established with an in-quota tariff of ECU 100 per tonne for third-country bananas and ECU 850 per tonne for out-of-quota imports. Out-of-quota imports of ACP bananas were subject to a tariff of ECU 750 per tonne. On 26 October 1993, the EC notified the CONTRACTING PARTIES of its intention to renegotiate the 1963 concession on bananas in accordance with the provisions of Article XXVIII:5 of GATT 1947. On 1 July 1995, the EC's Uruguay Round Schedule, including its tariff concession on bananas, became effective (see also paragraph 3.7 above).58
III.32 In accordance with the EC reduction commitments as a result of the Uruguay Round, the level of the bound tariff was reduced on 1 July 1995 to ECU 822 per tonne and on 1 July 1996 to ECU 793 per tonne. The final bound MFN rate at the end of the six-year implementation period of the Uruguay Round results will be ECU 680 per tonne. In accordance with the BFA entered into by the EC with Colombia, Costa Rica, Nicaragua and Venezuela, the MFN in-quota tariff rate was reduced and bound at ECU 75 per tonne from 1 July 1995 (though it was applied from 1 January 1995).
III.33 The Fourth Lom?Convention, signed on 15 December 1989 between the EC and 70 African, Caribbean and Pacific developing countries, many of which are Members of the WTO, contains a protocol concerning bananas, along with provisions applying to products more generally. Like its predecessors, the Fourth Lom?Convention was notified to the GATT and considered by a working party.
III.34 On 10 October 1994, the EC requested, together with the ACP contracting parties, a waiver from the EC's obligations under Article I:1 of GATT 1947.59 The waiver was granted by the CONTRACTING PARTIES on 9 December 1994 and provides, in paragraph 1 of the waiver decision, as follows:
"[T]he provisions of paragraph 1 of Article I of the General Agreement shall be waived, until 29 February 2000, to the extent necessary to permit the European Communities to provide preferential treatment for products originating in ACP States as required by the relevant provisions of the Fourth Lom?Convention, without being required to extend the same preferential treatment to like products of any other contracting party."60
III.35 On 14 October 1996, the Lom?waiver as granted by decision of the GATT CONTRACTING PARTIES at its December 1994 session was extended until 29 February 2000 (in accordance with the procedures mentioned in paragraph 1 of the Understanding in respect of Waivers and those of Article IX of the WTO Agreement).61
(v) Accession of Austria, Finland and Sweden to the EC
III.36 Following the accession of Austria, Finland and Sweden to the EC on 1 January 1995, the EC autonomously increased access under in-quota tariff conditions (ECU 75 per tonne) by 353,000 tonnes.62 The administration of these additional quantities is subject to the same procedures as the bound tariff quota, although they have not been bound in the EC Schedule.
IV. MAIN ARGUMENTS 1
IV.1 In their request for the establishment of the Panel, Ecuador, Guatemala, Honduras, Mexico and the United States, acting jointly and severally, submitted that the EC maintained a regime for the importation, sale and distribution of bananas as established by Regulation 404/93 (O.J. L 47 of 25 February 1993, page 1), and subsequent EC legislation, regulations and administrative measures, including those reflecting the provisions of the Framework Agreement on Bananas. The Complaining parties considered that the regime and related measures were inconsistent with the following Agreements and provisions among others:
- Articles I, II, III, X, XI and XIII of the General Agreement on Tariffs and Trade 1994 ("GATT"),
- Articles 1 and 3 of the Agreement on Import Licensing Procedures ("Licensing Agreement"),
- the Agreement on Agriculture,
- Articles II, XVI and XVII of the General Agreement on Trade in Services ("GATS"), and
- Article 2 of the Agreement on Trade-Related Investment Measures ("TRIMs Agreement").
In addition, they claimed that the measures also produced distortions which nullified or impaired benefits accruing to Ecuador, Guatemala, Honduras, Mexico and the United States, directly or indirectly, under the cited Agreements; and the measures impeded the objectives of the GATT and the other cited Agreements (WT/DS27/6).
IV.2 Following the joint request for the establishment of the Panel, its composition and the establishment of terms of reference, Ecuador, Guatemala, Honduras, Mexico and the United States made submissions to the Panel. The first submissions were made by each Complaining party separately, with the exception of Guatemala and Honduras which made a joint submission. Aspects of the EC's measures applying to bananas were cited as being inconsistent with the following provisions and Agreements in those submissions:
- concerning tariff issues: Article I:1 of GATT;
- concerning allocation issues: Article XIII of GATT; and
- concerning the import licensing regime: Articles I:1, III:4 and X of GATT; Articles 1.2, 1.3 and 3.2 of the Licensing Agreement; Articles 2 and 5 of the TRIMs Agreement; Article 4.2 of the Agreement on Agriculture; and Articles II and XVII of GATS.
Guatemala and Honduras:
- concerning tariff issues: Articles I:1 and II of GATT;
- concerning allocation issues: Articles I:1 and XIII of GATT; and
- concerning the import licensing regime: Articles I:1, III:4, X and XIII of GATT; Articles 1.3 and 3.2 of the Licensing Agreement; and Articles 2 and 5 of the TRIMs Agreement;
- concerning tariff issues: Article I:1 of GATT;
- concerning allocation issues: Article XIII of GATT; and
- concerning the import licensing regime: Articles I:1, III:4, X and XIII of GATT; Articles 1.2, 1.3, 3.2 and 3.5 of the Licensing Agreement; Article 2 of the TRIMs Agreement; and Articles II and XVII of GATS.
- concerning tariff issues: Article I:1 of GATT;
- concerning allocation issues: Article XIII of GATT; and
- concerning the import licensing regime: Articles I:1, III:4 and X of GATT; Articles 1.3, 3.2 and 3.5 of the Licensing Agreement; Articles 2 and 5 of the TRIMs Agreement; and Articles II and XVII of GATS.
IV.3 Following the first submissions, the Complaining parties generally made joint statements and submissions to the Panel, including a joint rebuttal submission and joint responses to questions posed by the Panel. In their joint statements and submissions, they cited the following aspects of the EC's measures applying to bananas as being inconsistent with the following provisions and Agreements:
- concerning tariff issues: Article I:1 of the GATT;
- concerning allocation issues: Article XIII of the GATT; and
- concerning the import licensing regime: Articles I, III, X, XI and XIII of the GATT; Articles 1.3, 3.2 and 3.5 of the Licensing Agreement; Article 2 of the TRIMs Agreement; and Articles II and XVII of GATS.
IV.4 The EC requested the Panel to find that the EC banana regime was not incompatible with the General Agreement on Tariffs and Trade and other instruments of Annex 1A of the WTO Agreement. In so far as the Panel might arrive at the opposite conclusion, the EC submitted that the Panel should find that the EC banana regime was covered by the Lom?waiver. The EC further submitted that the EC banana regime was not incompatible with the General Agreement on Trade in Services.
B. TRADE IN GOODS
IV.5 This part begins with a general overview of the claims presented by the Complaining parties and the responses of the European Communities. It is not intended to be a detailed or exhaustive presentation, but to provide a clear picture of the structure of the arguments at a broad level. In this regard it highlights the three major areas focused on by the Complaining parties and includes a number of horizontal issues raised by the EC. In order to provide a format for the many detailed claims, a measure-by-measure approach has then been taken addressing the detailed arguments concerning trade in goods under three major headings: tariff issues, allocation issues and licensing issues. Within these general headings, arguments by the Complaining parties and the EC are broken down into more specific sub-headings with the appropriate references made to horizontal issues at each stage.
1. GENERAL OVERVIEW OF THE CASE
(a) Overview of the claims presented by the Complaining parties
IV.6 The Complaining parties presented their claims within three broad headings: (i) tariff issues; (ii) allocation issues; and (iii) import licensing issues. Additional specific claims were presented in all areas as set out in the section which follows the overview. The responses of the Complaining parties with respect to the more horizontal arguments submitted by the EC in reply to the Complaining parties initial claims are also given in the section dealing with the detailed arguments.
(i) Tariff issues
IV.7 With respect to issues concerning the tariffs applied to the importation of bananas by the EC, the Complaining parties submitted that the tariff quota's tariff structure was challengeable because it imposed differential rates as between third-country bananas on the one hand, and non-traditional ACP bananas on the other. The application of such differential customs duties on the basis of foreign source contradicted in a direct way the GATT's most fundamental guarantee of "non-discriminatory tariff treatment" set forth in Article I:1.
IV.8 In addition, Guatemala and Honduras claimed that the rates applicable to third-country bananas breached the long-standing EC's GATT-bound tariff of 20 per cent ad valorem for the product, to which Guatemala continued to hold a claim.
(ii) Allocation issues
IV.9 The Complaining parties submitted that the EC had allocated shares to its market among supplying countries in a manner inconsistent with GATT Article XIII:2. It provided country-specific allocations to some countries (ACP and BFA signatories), while not providing them to others with similar or greater historical levels of trade. Furthermore, in their view most of the allocations provided to those favoured countries greatly exceeded the shares of trade they would be expected to obtain in the absence of restrictions as set out in the chapeau to Article XIII:2. The Complaining parties considered that the EC also disregarded the principles of Article XIII when it provided the BFA signatories the exclusive right to increase their access when other BFA countries experienced a shortfall in the quantity they could supply to the EC.
IV.10 In addition, Guatemala and Honduras submitted that the banana regime's differential volume restrictions by source fell within the prohibition of Article XIII:1 of GATT and, in so far as the system conferred market advantages to some foreign sources over others, it was a violation of Article I:1. Mexico and Ecuador submitted that the differential treatment did not "similarly prohibit or restrict" imports of third-country bananas and therefore was not consistent with Article XIII:1.
(iii) Import licensing issues
IV.11 The Complaining parties argued that the EC regulations imposed on imports from Latin America, a licensing scheme that was highly complex. The system, both in its totality and in its individual elements, created highly unfavourable conditions of competition compared to the simple arrangements for traditional ACP bananas. Unnecessarily burdensome, discriminatory, trade-restrictive and trade-distortive, the licensing regime implicated both the basic provisions of the GATT and the newer Uruguay Round disciplines pertaining specifically to licensing procedures and trade-related investment measures, in the view of the Complaining parties. The implementation of the scheme, including the number of implementing regulations issued, administrative procedures such as the two-round procedure used to allocate licences, and the delays in the issuance of import licences, was not, in their view, consistent with the provisions of the GATT and certain aspects of the Licensing Agreement.
IV.12 Within the import licensing system, the Complaining parties argued that the core of the import licensing system, i.e. the Category B operator criteria, was discriminatory under, inter alia, Articles I and III of GATT and also in conflict with the Agreement on Trade-Related Investment Measures. Thirty per cent of the in-quota quantity for the tariff quota was allocated to companies, known as Category B operators, on the basis of three previous years' marketings of EC bananas and imports of ACP bananas. The exemption from export certificate requirements and the exclusive receipt of hurricane licences provided additional advantages to Category B operators. Export certificates also constituted violations of non-discrimination and neutrality requirements in their own right.
IV.13 Furthermore, the Complaining parties submitted that the activity function rule, under which 43 per cent of the licences were distributed to parties other than primary importers, and the manner in which the rule was administered, additionally burdened and discriminated against imports from Latin America. By its nature, it increased transaction costs because it distributed licences to parties that did not previously import and who did not have the capacity to do so. The actual importers (those who were engaged in procuring the bananas from overseas) had to link up with particular ripeners or customs clearers or even invest in ripening facilities, in order not to lose a portion of their entitlement to import in the following year.
IV.14 In addition, Ecuador argued that the EC import licensing regime was inconsistent with Article 4.2 of the Agreement on Agriculture because various features of it involved discretionary import licensing which was not permitted by that Article.
(b) Overview of the responses presented by the European Communities
IV.15 In addition to responding to specific claims (often on a subsidiary basis), the EC responded with several broad arguments of principle, or horizontal arguments. These arguments covered, in most cases, a number of specific claims set out by the Complaining parties. The relevant arguments included: (i) the presence of two separate banana access regimes; (ii) GATT schedules and Articles I and XIII in the context of the Agreement on Agriculture; (iii) the non-applicability of the Agreement on Import Licensing Procedures to tariff quotas; and (iv) the non-applicability of Articles III:4 and X of GATT to border measures. In addition, in so far as the Panel found that any aspects of the EC banana regime were incompatible with GATT and other agreements specified by the Complaining parties, the EC argued the Panel should find that the banana regime was covered by the Lom?waiver. The details of these horizontal arguments, along with related arguments by the Complaining parties, are provided in the section containing detailed arguments which follows the overview.
(i) Separate regimes
IV.16 The EC argued that the external aspects of the EC common organization of the markets for bananas consisted of two distinct regimes:
(a) the regime for so-called traditional ACP bananas which should be treated in accordance with the Lom?Convention and be given preferential treatment. This regime was now covered by the waiver from the obligations of the European Communities under paragraph 1 of Article I of GATT with respect to the Fourth ACP - CEE Convention of Lom? and
(b) a bound rate of duty for imports in excess of tariff quota quantities and a tariff quota allocation for all other bananas. This was, in the view of the EC, a normal tariff quota as exists for many agricultural products in many Members.
With respect to (b), non-traditional ACP bananas benefited from preferential treatment which, in the EC's view, was covered, as the traditional ACP regime, by the Lom?waiver.
IV.17 Given the two separate external regimes for bananas, in the view of the EC no discrimination (and consequent violation) could be alleged against the country allocation within the tariff quota contained in the EC Schedule as compared to the traditional ACP allocation. Article XIII of GATT was relevant and applicable only in so far as one specific quota or tariff quota was considered, and specifically its administration. No argument could be made under Article XIII, in particular Article XIII:1, alleging discrimination in the administration of two different regimes, which were independent one from the other and each legally justified on a different basis. Likewise, any comparison between the licensing system for traditional ACP bananas and the tariff quota licensing system for all other bananas had no legal value and was not relevant. The EC argued that it was evident that the fact that the two separate and independent regimes had marginal differences in their respective licensing systems was not a violation of any GATT provision.
IV.18 In the view of the EC, the conclusion that Article XIII could not be applied simultaneously to the two different and separate parts of the EC banana regime, was confirmed by the interpretation of the scope of Articles I and XIII of GATT 1994. While both Articles contained a general principle of non-discrimination with regards to the importation or the exportation of like products originating in all third countries, the evidence did not imply that the two provisions overlapped. Article XIII was concerned only with the administration of each of the parts of the regime, and, in particular, all the border measures related to the importation or exportation of the products subject to a specific quota. In the view of the EC, this implied that, in GATT terms, comparing, under the authority of Article XIII, the internal licensing requirements within the ACP traditional allocation to the requirements of the tariff quota bound in the EC Schedule was legally wrong.
(ii) GATT schedules and Articles I and XIII in the context of the Agreement on Agriculture
IV.19 The EC submitted that as bananas were an agricultural product, the tariff and tariff quota on bananas were consolidations under the Agreement on Agriculture. Even though the old consolidated tariff of the EC for bananas was deconsolidated and negotiations begun under Article XXVIII of GATT 1947 with the countries which were (then) countries with initial negotiating rights or with a principal supplying interest, in the end the tariff and tariff quota were consolidated in the framework of the Uruguay Round. The EC argued that the consolidation and scheduling of concessions and commitments in the agricultural sector followed its own dynamic and its own rules during the Uruguay Round and this led, for instance, to the widespread recourse to tariff quotas in tariff scheduling; many of these tariff quotas being country-specific, i.e. they listed a limited number of countries to which they applied and for which certain quantities were reserved, while what was left was allocated to an "others" category.
IV.20 In the EC view, the specificity of the agricultural market access concessions was implicitly recognized in Article 4 of the Agreement on Agriculture, where the existence of market access concessions in this economic sector was specifically recorded and a special reference was made in its paragraph 1 to schedules. This gave these schedules a particular status which was all the more important if one also drew Article 21 of the Agreement on Agriculture into the analysis which confirmed the "agricultural specificity" in its clearest form and demonstrated that the rules of the Agreement on Agriculture, including the Schedules specifically referred to in Article 4.1, superseded, if necessary, the provisions of GATT 1994 and any agreement in Annex IA of the WTO Agreement.
IV.21 Moreover, the EC considered that, as Article II:7 of GATT 1994 clearly indicated, the EC banana concession was an integral part of Part I of the GATT and was, therefore, to be considered an integral part of Article I and Article II as appropriate. This was the acknowledgement of the fact that concessions were the result of multilateral negotiations after a sometimes long and difficult give-and-take process. The parties solemnly accepted, by explicit and binding agreement duly reflected by internal ratification or approval procedures, the content of the schedules mutually exchanged but only if and when they considered that, as a whole, the give-and-take process was satisfactory or, at least, acceptable for them. This entailed the consequence that any application of the MFN principle set out in Article I could not prevail per se on the terms and conditions of a concession since this would mean giving priority to one part of Article I on top of other parts of the same Article as supplemented by the concessions.
IV.22 In the specific case of the EC banana concession, the EC argued that the CONTRACTING PARTIES had agreed for the first time at the end of the Uruguay Round to the EC new banana regime based on the establishment of the EC tariff quota after the deconsolidation of the old and obsolete 20 per cent ad valorem bound rate and the creation of the EC-wide internal banana market. All the parties had agreed explicitly, knowingly and deliberately to this new concession: nothing could subsequently justify any Member reopening the negotiations by contesting the internal balance of the negotiation that had recently ended. In the EC view, this would be violating the fundamental principle "pacta servanda sunt" as expressed in the Vienna Convention on the law of the Treaties and the customary international law.
IV.23 The provision of Article I of GATT thus could not be considered applicable as such to the actual content of the EC banana tariff quota without taking into account the results of the Uruguay Round negotiations. Members had negotiated their commitments on bananas during the Uruguay Round in the framework of the agreed "agricultural specificity" and, therefore, no violation of Article XIII of GATT could be claimed with respect to the consolidated EC banana regime.
(iii) The non-applicability of the Agreement on Import Licensing Procedures to tariff quotas
IV.24 The EC submitted the opinion that, as far the Agreement on Import Licensing Procedures (Licensing Agreement) was concerned, the text specified that its scope was to regulate all the procedures, others than customs operations, prior to the importation. The provisions of that agreement appeared then as further specifications of some of the rules contained in Article XIII of GATT in which, inter alia, explicit reference was made "to import licences issued in connection with import restrictions". However, nothing in the Licensing Agreement specified (like Article XIII:5 of GATT) that it applied also to cases, such as the banana tariff quota, where no import restriction was applied at the border. In the view of the EC, the Licensing Agreement could not, therefore, be deemed applicable to cases where no import restriction was applied at the border and, specifically, the banana tariff quota.
IV.25 Furthermore, the EC argued that the existence of the licence could not be confused with the physical importation of bananas: the licences were only needed to benefit from a particular duty rate within the tariff quota, but not to physically import bananas, from any origin, into the EC customs territory. Licences were tradable, and traded, and were not a "prior condition" to any importation as referred to in Article 1.1 of the Licensing Agreement; they were needed only for the application of a specific duty rate. The fact that no limitation in quantities existed under the GATT-bound commitments was of paramount importance and, in the view of the EC should be sufficient to dismiss the applicability of the Licensing Agreement to tariff quotas.
(iv) The non-applicability of Articles III:4 and X of GATT to border measures
IV.26 The EC submitted that the banana tariff quota was a set of border measures ensuring the correct management of the regime, and not a set of rules applicable to bananas after they had cleared customs. In the view of the EC, practically all measures concerning the functioning and the administration of the tariff quota which concerned operators while importing bananas into the EC market were border measures and not internal rules applicable to all bananas after they had been introduced in the EC market. This simple and undisputable reality had an important legal implication when applying GATT: the internal sale and distribution system pertained to the internal rules applicable to that market and was relevant to the imported goods only if and when those goods had cleared customs.
IV.27 On the contrary, provisions like Articles XI and XIII of GATT and the Licensing Agreement clearly applied only to border measures at the moment of the importation or the exportation of a product and did not concern any alleged discrimination in the application of internal measures after the product had been cleared through customs. Consequently, the EC argued, it was impossible to allege that a specific measure violated at the same time Articles III:4 and X of GATT and Article XIII of GATT and/or the Licensing Agreement.
(v) The Lom?waiver
IV.28 On the basis of the responses outlined above and specific arguments made by the EC, the EC requested the Panel to find that the EC banana regime was not incompatible with GATT and other instruments of Annex 1A of the WTO Agreement. In so far as the Panel might arrive at the opposite conclusion, the EC argued that the Panel should find that the EC banana regime was covered by the Lom?waiver. The EC submitted that the Lom?Convention was one of the most important instruments of the EC's policy of development cooperation and as such was intended to "promote and expedite the economic, cultural and social development of the ACP States". The Convention covered various fields of cooperation, one of the most important being trade. Various provisions of the Convention dealt directly with trade and, all these provisions, aims and objectives applied equally to trade in bananas. Moreover, the Convention also included a Protocol which covered bananas specifically and stated, inter alia, that "no ACP State shall be placed, as regards access to its traditional markets and its advantages on those markets, in a less favourable situation than in the past or at present". On 19 December 1994, the GATT Council, at the request of the EC, decided that "Subject to the terms and conditions set out ..., the provisions of paragraph 1 of Article I of the General Agreement shall be waived, until 29 February 2000, to the extent necessary to permit the European Communities to provide preferential treatment for products originating in ACP States as required by the relevant provisions of the Fourth Lom?Convention, without being required to extend the same preferential treatment to like products of any other contracting party".
IV.29 In the view of the EC, in analysing the waiver the following elements had to be taken into account:
(a) the Lom?waiver clearly stated that the provisions of paragraph 1 of Article I of GATT shall be waived to the extent necessary to permit the EC to provide preferential treatment for products originating in ACP States; and
(b) in the second part of paragraph 1 of the waiver, the GATT Council had indicated that the preferential treatment to be accorded by the EC was limited to what was required by the relevant provisions of the Fourth Lom?Convention.
The EC submitted that by the first part of paragraph 1 of the waiver, the CONTRACTING PARTIES had accepted the principle that the EC should be put in the position of fully respecting its obligations vis-?vis ACP countries to provide the preferential treatment for products, including bananas, originating in those countries. According to the waiver, the preferential treatment was "designed to promote the expansion of trade and economic development of beneficiaries in a manner consistent with the objectives of the General Agreement and with the trade, financial and development needs of the beneficiaries" while not raising "undue barriers" or creating "undue difficulties for the trade of the other contracting parties". The EC argued that, as a consequence, any measure necessary to permit it to fulfil its obligations under the Lom?Convention to provide a preferential treatment to ACP countries for products originating in those countries was covered by the waiver.
IV.30 Furthermore, the EC submitted that the parties to the Lom?Convention understood their agreement as implying that the EC was subject to the obligations of: (a) contributing to remedy the instability in the revenues flowing from the marketing of ACP agricultural products by promoting trade between those parties and by taking measures ensuring a treatment more favourable than the one accorded to other countries benefiting of the MFN treatment for the product concerned; and (b) ensuring that no ACP States shall be placed, as regards access to its traditional banana markets and its advantages on those markets, in a less favourable situation than in the past or at present. The Lom?waiver, therefore, covered any measure taken by the EC in order to fulfil its legal obligations as indicated under the Lom?Convention with regards to any product originating in ACP countries, including bananas. In the case of bananas, the legal obligations were fulfilled by the EC by: (a) creating a specific and separate regime for the importation to the EC market of the ACP traditional banana production; (b) by the allocation to ACP countries of a limited share of the bound tariff quota at a duty-free rate, that was lower that the MFN bound rate; (c) by a marginal reduction of the tariff rate applicable for the importation of bananas outside the tariff quota; and (d) by facilitating trade and commercial relations between the EC and the ACP countries through the creation of the so-called Category B operator licences to ensure that the quantities for which access opportunities were given could actually be sold and that the EC could thus fulfil its obligations to guarantee traditional ACP bananas their existing advantages, while not providing by this mean any incentive to purchase ACP bananas.
IV.31 The EC also argued that the Panel was not empowered to give authoritative interpretation on any agreement other than those under the agreements covered by the Uruguay Round of multilateral trade negotiations as relevant for the settlement of the dispute within the terms of reference agreed by the DSB in its meeting of the 8 May 1996. In particular it could not interpret the extent of reciprocal obligations under an agreement especially any interpretation that contradicted the common understanding of the contracting parties to that agreement.
2. DETAILED ARGUMENTS
(a) Tariff issues
IV.32 This section outlines the case concerning issues involving tariff matters. After a presentation of the claims of the Complaining parties, the responses of the EC are outlined. As such, this section contains the major arguments, including background and general interpretative issues, of the EC and the Complaining parties surrounding the Lom?waiver, which was the main argument presented by the EC in response to the claims of the Complaining parties. Further arguments concerning the Lom?waiver also appear in the following sections: (b) allocation issues; and (c) import licensing issues, although in these cases, the basic arguments presented in this section are not repeated in detail.
IV.33 The Complaining parties submitted that the tariff quota tariff structures arising out of Regulation 404/93 were challengeable in that those structures imposed differential rates as between third-country bananas, on the one hand, and non-traditional ACP bananas, on the other. In addition, Guatemala and Honduras submitted that the rates applicable to third-country bananas breached the long-standing 20 per cent ad valorem EC GATT-bound rate, to which Guatemala continued to hold a claim.
(i) Tariff preferences for non-traditional ACP banana imports
Arguments of the Complaining parties
IV.34 The Complaining parties argued that the EC granted preferential treatment to so-called non-traditional ACP bananas, which designation had come to mean not only countries that had not been traditional suppliers, but amounts for traditional suppliers over and beyond the excessive quantities already allocated to them. Within the tariff quota for third countries, 90,000 tonnes of non-traditional ACP bananas entered duty free, while third-country bananas were dutied at the rate of ECU 75 per tonne. Over-quota, non-traditional ACP bananas received a ECU 100 per tonne reduction below the MFN rate applied to Latin American bananas. The Complaining parties considered that this differential treatment was a violation of the most-favoured-nation obligation treatment and therefore, in their opinion, was inconsistent with Article I of the GATT.
IV.35 Guatemala and Honduras submitted that the preferential tariffs for non-traditional ACP bananas were not included in the EC's Uruguay Round Schedules or other parts of the Uruguay Round Agreements. The application of such differential customs duties on the basis of foreign source contradicted in a direct way the GATT's most fundamental guarantee of tariff non-discrimination set forth in Article I:1. Guatemala and Honduras argued that GATT panels had strictly construed this tariff non-discrimination requirement, disallowing exceptions to be read into it that were never negotiated or agreed to by the contracting parties. In Spain - Tariff Treatment of Unroasted Coffee, the panel ruled that differences in the entered product arising from geographical or other factors could not be considered a basis for avoiding Article I obligations.64 In EEC - Member States' Import Regimes for Bananas, the panel further found that the trade impact of discriminatory tariff rates was irrelevant to an Article I:1 violation.65 In both that banana case and the subsequent one involving bananas, the panels condemned preferential tariff rates accorded ACP bananas under Article I:1.66 According to Guatemala and Honduras, the EC ignored that legal standard by conferring a trade advantage on non-traditional ACP bananas over third-country bananas "in order to ensure satisfactory marketing of bananas ... originating in the ACP States."67 Admitted tariff discrimination had thus occurred, for which no legitimate WTO defence could be shown.
Arguments of the EC
IV.36 The EC submitted it was clear that non-traditional ACP bananas had been allocated a consolidated share of the tariff quota up to 90,000 tonnes. However, non-traditional ACP bananas benefited from a preferential treatment which was covered, just as the ACP traditional allocation, by the Lom?waiver, consisting in duty-free importation for the quantities indicated in the tariff quota. Moreover, non-traditional ACP bananas benefited from a preferential treatment of ECU 100 per tonne reduction from the bound rate for imports outside the tariff quota. This preferential treatment was equally covered by the Lom?waiver.
Background on the Convention
IV.37 The EC submitted that the Lom?IV Convention was an extremely broad treaty between the EC and its member States on the one hand and 70 States of Africa, the Caribbean and the Pacific (ACP States) on the other hand. It was one of the most important instruments of the EC's policy of development co-operation and as such was intended to "promote and expedite the economic, cultural and social development of the ACP States" (Article 1 of the Convention). The Convention had existed in one form or another since the moment that many of these countries became independent from one of the member States of the Community in the early 1960s, and there was the need for the replacement of the Association regime for overseas territories as laid down in Article 131 of the EC Treaty. Originally called the Yaound?Convention, the treaty had evolved through many versions following the latest insights of development policy into the present instrument for development cooperation, including provisions on free trade, accompanied by many variegated cooperation provisions, a stabilization system for agricultural commodities ("Stabex"68), a special financing system for countries which were very dependent on mining activities ("Sysmin"), as well as a development fund ("EDF") of considerable size.
IV.38 Among the various fields covered by the Convention, the EC considered that trade was certainly among the most important. Especially with respect to the trade issues involved in the present case, the EC referred to the following provisions of the Convention:
Article 15(a) of the Convention:
"trade development shall be aimed at developing, diversifying and increasing the ACP States' trade and improving their competitiveness.... The Contracting Parties undertake to use all the means available under this Convention, including trade cooperation, financial and technical cooperation for the achievement of this objective."
Title I on Trade Cooperation stated further in Article 167, which was one of the instruments of trade development:
"In the field of trade cooperation, the object of this Convention is to promote trade between the ACP States and the Community",
and continued with:
"In pursuit of this objective, particular regard shall be had to securing effective additional advantages for ACP States' trade with the Community, and to improving the conditions of access for their products to the market in order to accelerate the growth of their trade and, in particular, of the flow of exports to the Community.".
All these provisions, aims and objectives applied equally to trade in bananas.
IV.39 Moreover, attached to the Lom?Convention was Protocol 5 on bananas. Under this Protocol, the EC had made another undertaking (in Article 1) to ensure that:
"In respect of its banana exports to the Community markets, no ACP State shall be placed as regards access to its traditional markets and its advantages on those markets, in a less favourable situation than in the past or at present.".
Similar preferential treatment was granted to ACP bananas under the earlier Lom?Conventions and under the two Yaound?Conventions, all of which had been notified to the relevant GATT bodies and examined by working parties69.
IV.40 The EC noted that originally the free trade provisions of the Yaound?Conventions were reciprocal; later, at the insistence of the ACP States themselves, as well as some third states, including the United States, they were made unilateral in favour of the ACP States. This was presently the case and this system of free trade in favour of the ACP States, with the exception of some primarily agricultural products (for which favourable tariff quotas were opened) was laid down in Article 168 of the Lom?Convention. This Article also stipulated that even for those products which were not subject to full free trade treatment by the Community, inter alia, because after the entry into force of the Convention they had been made subject to a common organization of the market under the common agricultural policy, a preference should be given to the ACP countries (Article 168(2)(a)(ii) together with 168(2)(d)). This was the case for bananas.
IV.41 During the negotiations of the Lom?Convention, the EC single market programme was already under way and it could be foreseen that this would have some repercussions on the way in which the Banana Protocol was going to be applied. Hence a Joint Declaration relating to Protocol 5 was agreed and included in Annex LXXIV to the Lom?Convention. According to this interpretative declaration, the Community was not prevented by Article 1 of Protocol 5 from establishing common rules for bananas, as long as no ACP State which was traditional supplier to the Community, was placed as regards access to and advantages in the Community, in a less favourable situation than in the past or at the time of conclusion of the Lom?Convention. This interpretative declaration, while leaving the liberty to the Community to unify the heterogeneous national rules which were in place at the time when the Lom?Convention was concluded, put an obligation on the Community to preserve the pre-existing situation as far as access to and advantages in the Community market for traditional ACP bananas were concerned70.
Background on the waiver
IV.42 The EC further noted that in the autumn of 1994 it took the initiative to obtain a waiver for the Fourth Lom?Convention. Although the Community disagreed thoroughly with the report of the so-called second Banana panel and could not accept that the Lom?Convention did not respond to the criteria of Article XXIV, it nevertheless availed itself the possibility to obtain such a waiver. This was in the interest of legal security both for the Community and for its partners in the Lom?Convention. The most important provision of the waiver (L/7604), point 1, was as follows:
"Subject to the terms and conditions set out hereunder, the provisions of paragraph 1 of Article I of the General Agreement shall be waived, until 29 February 2000, to the extent necessary to permit the European Communities to provide preferential treatment for products originating in ACP States as required by the relevant provisions of the Fourth Lom?Convention, without being required to extend the same preferential treatment to like products of any other contracting party."
IV.43 The EC argued that the Lom?waiver was of great importance in permitting the Community to give preferential treatment pursuant to the provisions of the Convention, and the Banana Protocol in particular. In this way the partners to the Convention could pursue their development strategy with the minimum legal security and continuity that was absolutely required. There could be no doubt that for bananas the relevant provisions of the Lom?Convention were such Articles as 15a, 168 and the Banana Protocol as interpreted by the declaration contained in Annex LXXIV. The preferential treatment contained in these provisions was not merely restricted to simple tariff preferences, but extended to advantages on the market.
IV.44 In reaching this position, the EC submitted that the following elements should be taken into account. Firstly, the Lom?waiver clearly stated that the provisions of paragraph 1 of Article I of GATT shall be waived to the extent necessary to permit the EC to provide preferential treatment for products originating in ACP States. By this first part of paragraph 1 of the waiver, the CONTRACTING PARTIES accepted the principle that the EC should be put in the position of fully respecting its obligations, vis-?vis ACP countries, to provide the preferential treatment for products originating in those countries. Bananas were products originating in those countries. Further, the preferential treatment, waived from the application of Article I:1 of GATT, was "... designed to promote the expansion of trade and economic development of beneficiaries in a manner consistent with the objectives of the General Agreement and with the trade, financial and development needs of the beneficiaries..." while not raising "undue barriers" or creating "undue difficulties for the trade of the other contracting parties". Consequently, in the view of the EC, any measure necessary to permit it to fulfil its obligations under the Lom?Convention to provide preferential treatment to ACP countries for products originating in those countries was covered by the waiver.
IV.45 The EC submitted that the second element to be taken into account related to the second part of paragraph 1 of the waiver. The GATT Council, had indicated that the preferential treatment to be accorded by the EC within the limits explained above was limited to what was required by the relevant provisions of the Lom?Convention. The relevant provisions of the Lom?Convention as regards bananas were, inter alia, Articles 15a, 24, 168 and Protocol 5.
IV.46 Before the entry into force of the common organization of the markets (COM) for bananas, ACP bananas entered the Community duty free under Article 168(2)(a)(i) of the Lom?Convention. These traditional quantities were therefore to be marketed enjoying the same advantages on the Community market as "in the past or at present", as guaranteed in Protocol 5, they had to therefore, in the view of the EC, continue to enjoy duty-free access. As regards non-traditional quantities, the EC submitted that since the entry into force of the COM, these fell under the scope of Article 168(2)(a)(ii) which stated: "the Community shall take the necessary measures to ensure more favourable treatment than that granted to third countries benefiting from the most-favoured-nation clause for the same products". Moreover, Article 168(2)(d) first indent stated: "if during application of the Convention, the Community subjects one or more products to common organisation of the market, [which is the case for bananas] it shall reserve the right to adapt the import treatment for those products originating in the ACP States, following consultations within the Council of Ministers".
IV.47 When the common organization of the markets for bananas was set up, the Council of Ministers, in accordance with the above provision, decided that non-traditional ACP quantities would enjoy duty-free access (Article 18.1 of Council Regulation 404/93) within the tariff quota, thus ensuring that they were treated more favourably than other third-country supplies which were subject to a duty of ECU 75 per tonne. Outside the tariff quota, more favourable treatment was also ensured as non-traditional ACP imports were subject, in 1995, to a duty rate of ECU 722 per tonne as opposed to ECU 822 per tonne for other third-country supplies.
IV.48 In summary, the EC submitted that the Parties to the Lom?Convention understood their agreement as implying that the EC was subject to the obligations of: (a) contributing to remedy the instability in the revenues flowing from the marketing of ACP agricultural products by promoting trade between those parties and by taking measures ensuring a treatment more favourable than the one accorded to other countries benefiting of the MFN treatment for the product concerned; and (b) ensuring that no ACP States shall be placed, as regards access to its traditional banana markets and its advantages on those markets, in a less favourable situation than in the past or at present. The EC argued, therefore, that the Lom?waiver should be deemed to cover any measure taken by the EC in order to fulfil its legal obligations as indicated under the Lom?Convention with regards to any product originating in ACP countries, including bananas.
IV.49 The EC argued that the legal obligations it set out were fulfilled by: (a) creating a specific and separate system for the importation in the EC market of the ACP traditional banana production; (b) by the allocation to ACP countries of a limited share of the bound tariff quota at a duty free rate, that is lower that the MFN bound rate; (c) by a marginal reduction of the tariff rate applicable for the importation of bananas outside the tariff quota; (d) by facilitating trade and commercial relations between the EC and the ACP countries through the creation of the so-called Category B operator licences so as to ensure that the quantities for which access opportunities were given could actually be sold and that the EC could thus fulfil its obligations to guarantee traditional ACP bananas their existing advantages, while not providing by this mean any incentive to purchase ACP bananas.
IV.50 The EC went on to remind the Panel that the scope of the present procedure was to consider the extent of the reciprocal obligations for the Members, parties to this procedure, under the Agreements covered by the Uruguay Round of Multilateral Trade Negotiations as relevant for the settlement of the dispute within the terms of reference agreed by the DSB in its meeting of 8 May 1996. On the contrary, the Panel was not empowered, in the EC view, to give authoritative interpretation on any other agreement, in particular regarding the extent of the reciprocal obligations under an agreement for the contracting parties to that agreement, let alone any interpretation contradicting the common understanding of the contracting parties to that agreement of their own reciprocal obligations.
IV.51 In the view of the Complaining parties, not one measure at issue in the action fell within the narrow parameters of the Lom?waiver. The Lom?waiver accordingly was not a defence for the measures that were the subject of this dispute that were inconsistent with Article I of GATT.
IV.52 The Complaining parties argued that the waiver only applied to violations of Article I "to the extent necessary to permit the EC to provide preferential treatment" to ACP products "as required by the relevant provisions" of the Lom?Convention. The waiver did not apply to all measures that the EC might adopt under the Lom?Convention's objectives. In their view, the Lom?Convention left the EC with broad discretion permitting it to comply with its WTO obligations as it sought to develop common rules for bananas. In order to determine whether an EC measure which might violate Article I was covered by the waiver, the Panel had therefore to reach a conclusion that such a measure was "required" by the Lom?Convention.
IV.53 The Complaining parties submitted that the EC had attempted to portray this dispute as being "all about" the EC's need to meet its obligations under the Lom?Convention. The EC was subject to numerous requirements under the Lom?Convention, many of which involved direct assistance and development. 71 However, the Convention did not, according to the Complaining parties, cover non-traditional ACP bananas at all, did not require the kind of licensing arrangements applied to Latin American bananas, did not "guarantee" any specific level of imports from ACP countries, and was therefore not covered by the GATT waiver obtained in 1994 for violations of GATT Article I "required" by the relevant provisions of the Convention. Moreover, the EC provided trade preferences with respect to a broad variety of exports, but had not seen fit to impose the kinds of licensing requirements in its MFN trade with respect to those other products.
IV.54 According to the Complaining parties, the EC had misidentified the provisions of the Lom?Convention that were covered by the waiver and ignored the long-standing GATT interpretive framework requiring the strict construction of waivers. Upon proper analysis, in the view of the Complaining parties, the Panel could only conclude that the EC's Lom?obligations with respect to trade in bananas did not require it to adopt the measures for banana imports that were the subject of this dispute. The Complaining parties submitted that GATT panels had consistently considered that waivers from GATT obligations were granted only in exceptional cases and should be construed narrowly within their explicit terms. In the Sugar Headnote case, for example, the panel noted that because waivers abrogated obligations under the basic rules of the GATT, they "are granted according to Article XXV:5 only in `exceptional circumstances'," and "their terms and conditions consequently have to be interpreted narrowly."72 This approach was consistent with the approach of past panels in interpreting GATT exceptions.73
IV.55 The Complaining parties further submitted that the Lom?waiver had been precisely and narrowly drawn up by the CONTRACTING PARTIES to waive only Article I:174, and only "to the extent necessary ... to provide preferential treatment for ... ACP States as required by the relevant provisions of the Fourth Lom?Convention."75 In October 1994, the EC originally had requested a broader waiver, one that extended to "preferential treatment ... as foreseen by the relevant provisions of the Fourth Lom?Convention." The United States and Guatemala had insisted that the originally-proposed language be changed to "preferential treatment ... as required by the relevant provisions of the Fourth Lom?Convention."76 The deletion of the term "foreseen" had clarified the intent to exclude from the Lom?waiver's coverage any measure based solely upon an "authorization" or "exhortation" in the Lom?Convention. The insertion of the term "as required" had further clarified that only those measures that were mandatory and legally binding under the Lom?Convention were to be protected by the waiver. This drafting correction, combined with the GATT principles of waiver interpretation, did not permit the Lom?waiver to cover EC legislation allegedly based on Lom?Convention objectives, authorizations and exhortations. These were not, in the opinion of the Complaining parties, "requirements" of the Lom?Convention. As also observed in the context of Article XIII of the GATT, the Lom?waiver's explicit application to Article I could not be read to extend directly or indirectly beyond Article I to include other GATT or WTO obligations. The waiver for the Lom?Convention was not drafted to take care of the banana problem; it applied to all products covered by the treaty. It could not be presumed, in disregard of its explicitly limited application to Article I, to legitimize all EC banana measures in force as of December 1994. This would be contrary to the drafting history of the Lom?waiver and GATT practice. As stated by the working party examining the United States Section 22 waiver:
"Since the [waiver] Decision refers to the provisions of Articles II and XI of the Agreement, it does not affect the obligations of the United States under any other provisions of the Agreement. In particular, as its obligations under Article XIII are not affected, the United States would acquire no right by virtue of this waiver to deviate from the rule of non-discrimination provided for in that Article."77
IV.56 The Complaining parties were of the view that the deliberately chosen language of the Lom?waiver and established principles of waiver interpretation confirmed that the EC bore the full burden of demonstrating how its numerous discriminatory measures inconsistent with Article I:1 were legally "required" by the relevant provisions of the Lom?Convention. The Complaining parties considered that the EC had failed to meet that burden in all respects.
IV.57 The EC reiterated that it requested the waiver on 10 October 1994 with the aim "to improve legal certainty for the trade of ACP countries". In response to a question by the Panel, the EC noted that while the word "foreseen" in the original request was replaced by "required", the change was not a substantial one since the word "foreseen" was supposed to describe exactly the same intention as "required". Both words covered the preferential treatment which had been mutually agreed between the parties to the Lom?Convention, ACP on the one side and EC on the other. Subject to minor modifications, the text approved by the CONTRACTING PARTIES corresponded to the one proposed by the EC. Indeed, during the procedure for approval under Article XXV, Guatemala asked for consultations in a letter dated 22 November 1994. Consultations were held the 30 November 1994 in the presence of a representative from Jamaica on behalf of the other ACP countries. During that meeting, Guatemala had asked for some amendments to the text, in particular: preferential treatment in paragraph 1 to be limited to "customs duties"; the word "unduly" in paragraph 3 to be deleted; and that the waiver not to cover fresh bananas. None of these suggestions were retained by the Contracting parties. In the EC view, this meant, inter alia, that no doubt whatsoever could be raised on the fact that the waiver covered preferential treatment resulting from measures taken by the EC other than customs duties and that it concerned fresh bananas.
IV.58 In the EC view it was clear from the text of the waiver itself, that the Lom?waiver concerned "'preferential treatment' for products originating in ACP States as required by relevant provisions of the Fourth Lom?Convention...". The waiver did not refer to measures of any kind, let alone measures of mandatory nature which should be allegedly present in the Lom?Convention. As already stated, the EC and the ACP countries had undertaken a certain number of obligations. Among them, the EC considered it was bound: (i) to ensure that no ACP State shall be placed, as regards access to its traditional markets and its advantages on those markets, in a less favourable situation than in the past or at present (Protocol 5, Article 1); (ii) to ensure more favourable treatment than that granted to third countries benefiting from the most-favoured-nation clause for the same product (Article 168(2)(a)(ii)); (iii) to use all means available under the Convention, including trade cooperation and those on financial and technical cooperation, for the achievement of the objective of trade development aimed at developing, diversifying and increasing the ACP States' trade and improving their competitiveness (Article 15a); and (iv) to provide special arrangements for the EC import of certain ACP products in order to promote and diversify trade between the contracting parties (Article 24, second indent).
IV.59 In the EC view, what the Lom?waiver was about was the possibility for the EC not to extend a particular preferential treatment, required by the Lom?Convention under the above mentioned provisions, to the other Members. What the Lom?waiver was not about was the examination of the possible violation of any WTO provision by the measures taken by the EC to fulfil its obligations under the Lom?Convention. There was therefore no reason why the Complaining parties (and the Panel) should examine the content of the single measures taken by the EC with respect to the waiver and Article I:1 of GATT 1994 and not their end result, the preferential treatment, which was the only matter that was covered by the waiver. Even less evident was the argument raised that the measures taken by the EC to fulfil its obligations under the Lom?Convention should be linked to any "mandate", "exhortation" or "authorization". The word "required" was grammatically and logically linked to the words "to provide preferential treatment" in the Lom?waiver. The preferential treatment was therefore the central issue for the interpretation of the scope of the Lom?waiver: the Panel should verify if and when preferential treatment was required by the Lom?Convention and, according to this verification, if that preferential treatment should be extended on an MFN basis to the other Members in application of Article I:1 or be waived from this obligation. The means by which the preferential treatment was achieved was of no avail for Article I:1 and, accordingly, for the interpretation of the scope of the waiver. For this reason, any reference to EC secondary legislation was ill placed and not relevant in this context. The EC submitted that the Panel should consider only the treatment for ACP bananas which was the result of such legislation. Any different interpretation would radically change a posteriori the understanding among the CONTRACTING PARTIES on the scope of the waiver and undermine the legal certainty that was the paramount reason that convinced the EC to request it in the first place. The Lom?Convention allowed full discretion, therefore, as to which means (and specific measures) the EC used to fulfil its obligations, in order that the overall objectives were met.
IV.60 Furthermore, the term "preferential treatment" were not a generic expression but the evidence of a specific will of the CONTRACTING PARTIES to waive that treatment from the obligations of Article I:1, irrespective of the measures taken by the EC to achieve it. Previous waivers of similar nature like United States - Caribbean Basin Countries, United States - Andean Trade Preferences Act, United States - Imports of Automotive Products, Canada - Commonwealth Caribbean Countries referred much more specifically to "... provide duty-free treatment" and not to "preferential treatment". The different wording underlined the extended scope of the waiver covering any preferential treatment required by the Lom?Convention. A precedent in the same line could be found in the waiver United States - Former Trust Territory of the Pacific Islands.
IV.61 According to the EC, this interpretation was indisputable: the whole text of the waiver referred only to the preferential treatment. The EC referred in particular to the language in paragraph 5 where reference was made to a requirement for an "annual report on the implementation of the preferential treatment for products originating in ACP States", and paragraph 2 where an obligation was imposed upon the parties to the Lom?Convention to "promptly notify the contracting parties of any changes in the preferential treatment to products originating in ACP States". Thus, the object of the Panel's examination was, according to the EC, limited to the verification of two elements: (i) the existence of a provision in the Lom? Convention requiring that a preferential treatment be granted to bananas originating in ACP States; and (ii) that the preferential treatment accorded did not manifestly "raise undue barriers or create undue difficulties for the trade of other contracting parties" as indicated in the third considering clause of the preamble to the waiver.
IV.62 The EC suggested that the Panel, having verified the existence of the obligations for the EC to grant a preferential treatment for the bananas originating in ACP countries, accept that treatment could not be extended to other Members unless evidence was submitted by the Complaining parties that undue barriers or undue trade difficulties were created for the bananas imported from those Complaining parties. According to the EC, this had never been shown by any of the Complaining parties. On the contrary, the legal and factual reality showed that while Latin American bananas entered the EC market making full use of the EC tariff quota - whose size was not affected at all by the existence of a completely separate regime for ACP traditional bananas - the ACP traditional bananas were not able to fill their quota under the ACP regime in spite of the preference granted to those countries by the EC.
IV.63 The Complaining parties noted that past reports had considered that the party invoking an exception bore the burden of demonstrating that each measure inconsistent with the GATT met every condition of the exception.78 Both the EC and the ACP countries had sought to avoid this rigorous examination by arguing that the Lom?Convention could only be interpreted by its signatories. The second Banana panel had rejected a similar argument in the context of the Lom?Convention's consistency with GATT Article XXIV, finding that review of the Lom?Convention was required in order to determine the EC's obligations. The panel declared:
"If this view were endorsed, a mere communication of a contracting party invoking Article XXIV could deprive all other contracting parties of their procedural rights under Article XXIII:2, and therefore also of the effective protection of their substantive rights."79
IV.64 The Complaining parties submitted that the DSB had conferred on this Panel broad terms of reference. Paragraph 6 of the Lom?waiver, read in combination with Article 3 of the Understanding in Respect of Waivers of Obligations Under the General Agreement on Tariffs and Trade 1994, further clarified that a Member could request a panel to review the consistency of any measure with the terms and conditions of the Lom?waiver. Article IX of the WTO Agreement further reflected the intent of the Members to limit the use of waivers by increasing the number of votes required to approve a waiver. Given the EC's claims that it was exempted from its Article I:1 obligations under the terms of the Lom?waiver for several measures at issue, the Panel had no choice but to review the conformity of all such measures in order to satisfy its terms of reference. Unless the Panel undertook such a review, only the parties to the Lom?Convention could determine the coverage of a WTO waiver, enabling them to deviate from general WTO rules and obligations as they saw fit and impinge on the procedural and substantive rights of other Members.
IV.65 The Complaining parties thus contested the EC's right to preclude the Panel from deciding what was and what was not required or relevant under the Lom?Convention, by reserving for Lom?signatories an exclusive right to interpret the treaty. This view was plainly inconsistent with the nature of the Panel proceedings; if the waiver was conditioned on a particular application of the Lom?Convention's relevant provisions (and the waiver was clearly a relevant provision of the WTO), the Lom?Convention's relevant provisions effectively amended the EC's WTO obligations, and therefore, were obviously within the Panel's terms of reference. Just as domestic laws and regulations were routinely reviewed by GATT dispute settlement panels, the meaning of another agreement simply presented a question of fact for the Panel to determine. If the Panel were to accept the argument put forth by the EC, it would mean that the parties to the Lom?Convention could unilaterally determine the scope of coverage of a WTO waiver, while Members or any panel interpreting the WTO could not. This would be absurd in the Complaining parties view. The Complaining parties claimed that as an exception to the General Agreement, a waiver must be strictly construed and the party invoking the waiver bore the burden of showing that it applied. In this particular instance, the burden was heavy indeed, since the waiver was only for "required" violations. In the opinion of the Complaining parties, the waiver did not give the EC carte blanche to adopt any discriminatory banana measure that it considered consistent with the objectives of the Lom?Convention.
IV.66 The EC returned to its opinion that the Panel was not empowered to provide an interpretation of an international agreement, on which it has no jurisdiction, which was different from the one upon which the parties to that international agreement agree. In the EC view, the situation was legally different from the one described by the Complaining parties. When Panels were requested to judge on an alleged violation of certain WTO rules by measures implemented by a Member which were adopted in application of domestic laws or regulations, those laws or regulations were an element of the violation itself and therefore should be taken into the picture. In the present case, on the contrary, the Lom?Convention was not an element of any alleged violation of any WTO provision. Moreover, with respect to the Complaining parties' argument, those laws or regulations concerned only one Member and not an agreed provision between two Members, or, between a Member and a non-member, as was also the case here. In the particular case, an agreed interpretation about the extent of reciprocal obligations - as the Vienna Convention stipulated in Article 31.3(a) and (b) and 31.4 - was an essential element of the correct interpretation (and implementation) of the content of the agreement. Contrary to the description provided by the Complaining parties, the Lom?waiver was concerned with preferential treatment accorded by the EC to products originating in ACP countries. No measure was referred to in the waiver since no specific measure was actually "required" by the Lom?Convention.
IV.67 What the Panel should therefore verify when examining the scope of the waiver and its application, was if a certain preferential treatment accorded by EC to ACP originating bananas was "required" by the Lom?Convention itself; that was if it was founded on an obligation flowing from that Treaty. The provisions quoted earlier were of plain and direct comprehension, the EC argued, and did not need any interpretative exercise so one might suggest that the Roman wisdom should be (easily) followed: "in claris non fit interpretatio". However, should any doubt concerning the interpretation of a specific provision be raised, then only the parties to the Lom?Convention should be the ultimate authorities for the authentic interpretation of that clause. This was even more necessary, in the EC view, considering that the other parties to the Lom?Convention - that is the ACP States -did not have the opportunity fully to defend their case in front of the Panel. It could not be admitted that a party to an international agreement should be bound to an interpretation of that agreement that the contracting parties might not share and against which they were not even allowed to exercise completely their right of defence.
IV.68 In response to a question posed by the Panel, the EC further submitted that the last paragraph of the Lom?waiver meant that any Member could complain of a lack of observance of the terms or conditions of the waiver. If the terms and conditions of a waiver were not fulfilled, this constituted a breach of the waiver and a panel could make any rulings and recommendations pertaining to such waiver, just as it can make such rulings and recommendations in respect of a breach of the GATT and Annex IA Agreements. The EC was, however, firmly convinced that a panel could not rule on a non-violation complaint in respect of a waiver. Article 3(b) of the 1994 Understanding in Respect of Waivers was clearly decided in error, because it was incoherent with standing case law on non-violation complaints. Non-violation complaints could only be granted if the complaining party had reasonable expectations that certain benefits would accrue to it, but they had been nullified or impaired by an act which was lawful under the GATT.80 In the case of bananas, such reasonable expectations had been entirely destroyed by the granting of the Lom?waiver as recently as 1994, when the banana regime was already in force. The only reasonable expectation that a Member could have, in the EC's view, was that the terms of the waiver would be respected and this could lead to a complaint concerning the violation of the waiver. In the case the question did not arise as the Complaining parties had never seriously advanced a non-violation claim, whether during consultations, in their request for the establishment of a panel, in their submissions, or during the first meeting with the panel. Moreover, the Complaining parties had failed to discharge their special burden of justification under Article 26(a) of the DSU. All this demonstrated, the EC argued, that the Panel should not entertain a non-violation claim.
IV.69 The Complaining parties considered that the EC's assertion that the waiver covered any and all kinds of preferential treatment that the EC decided to attribute to its Lom?Convention obligations was alarming and without any basis. They asked how many measures, and with respect to how many products, the EC would attempt to slip under such a broad waiver. In the view of the Complaining parties, after having accepted a WTO waiver in terms of certain preferential treatment required by the Lom?Convention, the EC could not now demand that dispute settlement panels refrain from any examination of the relationship between the two sets of obligations, in particular what was "required by" the Convention. The EC's theory that the waiver covered ACP benefits negotiated between the parties to the Convention (allegedly pursuant to broad Convention objectives) provided no security to Members that had provided the waiver. Granting the EC the exclusive right to interpret the waiver would only encourage future violations of GATT Article I which would be inconsistent with WTO objectives and practice. This was wholly contrary to the purpose of WTO obligations; only the WTO could interpret the Lom?waiver, and in order to do so, the Panel was required to examine what was strictly required by the Lom?Convention.
IV.70 With respect to the specific provisions of the Lom?Convention, Guatemala and Honduras argued that both Protocol 5 and Annex LXXIV, the two Lom?Convention provisions that most directly addressed the treatment of ACP bananas, pointedly emphasized that Lom?Convention benefits extended only to traditional ACP suppliers. Article 1 of Protocol 5 contained the statement that:
"no ACP State shall be placed, as regards access to its traditional markets and its advantages on those markets, in a less favourable situation than in the past or at present".
Annex LXXIV, paragraph one, added emphasis to this traditional-supplier limitation:
"[t]he Contracting parties agree that Article 1 of Protocol 5 does not prevent the Community from establishing common rules for bananas, in full consultation with the ACP, as long as no ACP State, traditional supplier to the Community, is placed as regards access to, and advantages in, the Community, in a less favourable situation than in the past or at present."
In its Report of the ACP-EEC Council of Ministers, the EC further confirmed the narrow reach of the benefits promised to those traditional ACP banana suppliers by the Lom?Convention. The EC rejected in that Report the ACP claim that the Lom?Convention guaranteed them "quantities, market shares and prices ..."; explaining that:
"the banana protocol only guaranteed the full application of Article 2 Lom?[now Article 168] in case of the establishment of a common market organisation."81
Article 168 of the Lom?Convention, as delimited by Protocol 5 and Annex LXXIV, could only be interpreted to authorize tariff preferences and direct aid as a means of ensuring that no traditional ACP State received less favourable access and advantages than those previously received.
IV.71 The Complaining parties argued that in the first instance, the EC had mis-identified the Lom?Convention's requirements pertaining to bananas. Its list of relevant provisions included articles that did not fall within the reach of the Lom?waiver and omitted key provisions that did. By any standard, Article 15(a) was not obligatory on the subject of bananas, but hortatory and non-specific. Indeed, to the extent the language therein provided interpretive guidance on the issue of Lom?Convention requirements, it cut directly against the claim that preferential ACP access had to be enhanced through discriminatory licensing procedures for Latin American imports. As acknowledged by the EC in its information memorandum regarding the signing in Mauritius of the Agreement Amending the Fourth ACP-EC Convention of Lom?
"[a]ccording to this Article [15(a)], the main aim of trade development is to improve the ACP States' competitiveness rather than, as in the past, extract maximum value from preferential arrangements ... . The Preferential regime is just one amongst many ways of developing trade ...".82
IV.72 Article 24 of the Lom?Convention was, according to the Complaining parties, even more general than Article 15(a), providing no requirement with respect to ACP bananas:
"In order to promote and diversify trade between the Contracting Parties, the Community and the ACP States are agreed on: general trade provisions; special arrangements for Community import of certain ACP products; arrangements to promote the development of the ACP States' trade and services, including tourism; [and] a system of reciprocal information and consultation designed to help apply the trade cooperation provisions of this Convention effectively."
The European Court of Justice ("ECJ"), too, considered the EC's only Lom?Convention obligations in the area of bananas to be those laid down in Article 168(2)(a)(ii), as exclusively defined and qualified by Protocol 5 and Annexes LXXIV and LXXV.83 The latter two "joint declarations" spoke directly to the issue of banana obligations, but were omitted from the EC's apparent list of "relevant provisions". Article 168 provided in the relevant part that for ACP products such as bananas that were subject to a common organization of the market or for which EC measures were in force relating to the imported product: "the Community shall take the necessary measures to ensure more favourable treatment than that granted to third countries benefiting from the most-favoured-nation clause for the same products."84 Protocol 5 on bananas, annexed to the Convention, set forth specific provisions relevant to banana trade. These provisions clearly superseded the more general provisions in Article 168.85 The protocol opened with a statement that:
"The Community and the ACP States agree to the objectives of improving the conditions under which the ACP States' bananas are produced and marketed and of continuing the advantages enjoyed by traditional suppliers in accordance with the undertakings of Article I of this protocol and agree that appropriate measures shall be taken for their implementation."
Article 1 of Protocol 5 provided:
"In respect of its banana exports to the Community markets, no ACP State shall be placed, as regards access to its traditional markets and its advantages on those markets in a less favourable situation than in the past or at present."
Annex LXXIV contained a joint declaration appended to the Protocol that permitted the EC to derogate from its obligations under the Lom?Convention in order to establish common rules for bananas, subject to one condition. The declaration stated:
"The Contracting Parties agree that Article 1 of Protocol 5 does not prevent the Community from establishing common rules for bananas, in full consultation with the ACP, as long as no ACP State, traditional supplier to the Community, is placed as regards access to, and advantages in, the Community, in a less favourable situation than in the past or at present."
IV.73 The Complaining parties submitted that Annex LXXV explicitly clarified that Haiti and the Dominican Republic, because they "do not at present export to the Community", were "accordingly not considered as traditional suppliers", and therefore did not benefit from the Protocol or Joint Declaration. The EC therefore had no special obligations with respect to their exports of bananas. With respect to traditional suppliers, as set out in Annex LXXIV, the EC was free to establish those common rules for bananas it deemed appropriate (and presumably, consistent with its international obligations) so long as it safeguarded a certain "situation" as regards past or present advantages with respect to traditional suppliers. As noted above, the ECJ was asked to review Article 168 as it related to non-traditional bananas and found that the "more favourable treatment" language of Article 168 was delimited by Protocol 5, Annex LXXIV and Annex LXXV to cover only access and advantages accorded to traditional ACP banana suppliers.86 The ECJ's narrow reliance on Protocol 5, Annex LXXIV and Annex LXXV to define the Lom?Convention's banana requirements was, according to the Complaining parties, entirely consistent with recent EC statements regarding the EC's Lom?Convention obligations on bananas.
IV.74 The EC referred to the reference made by the Complaining parties to Annexes LXXIV and LXXV to the Lom?Convention, indicating that the EC had not listed them because, in the view of the EC, they did not add anything to the main provisions, i.e. Article 168(2)(a)(ii) and Protocol 5 of the Lom?Convention, which set out the fundamental obligations for the preferential treatment for ACP bananas. In particular, Annex LXXV did nothing more than what the EC had acknowledged from the very beginning of the procedure, that is that bananas from Haiti and the Dominican Republic should not be considered as traditional and should not be subject to the provisions of Protocol 5. They were nevertheless covered by the provisions of Article 168(2)(a)(ii). According to the EC, and as set out in Article 368 of the Lom?Convention, the Protocols to the Lom?Convention formed an integral part of the Convention. Therefore, they constituted provisions of identical legal value as the ones contained in the main body of the Agreement, with the same legal value meaning identical binding effect on the contracting parties. But identical did not mean more value or, worse, repealing force of one provision vis-?vis another existing provision under the same Agreement. Moreover, according to the EC, the Panel did not even need to enter into the difficult subject of examining the relation between the two provisions since no conflict existed between them: Protocol 5 applied only to traditional ACP bananas, thus supplementing Article 168(2)(a)(ii) which, in turn, applied to ACP bananas in general and to non-traditional ACP bananas in particular. Contrary to what the Complaining parties affirmed, there was no contradiction between the position expressed by the Court of Justice of the European Communities in its judgement in the case Germany v. Council of the European Union, C-280/93, published in ECJ Reports, 1994, I-5071 and the arguments developed by the EC in this procedure. In that decision (paragraph 101, ab initio) the Court of Justice stated: "with respect to the establishment of a tariff quota, the import of bananas from ACP States falls under Article 168(2)(a)(ii) of the Lom?Convention." The Court then added: "In accordance to Protocol 5, the Community is obliged to permit the access, free of customs duty, only of the quantities of bananas actually imported "at zero duty" in the best year before 1991 from each ACP State which is a traditional supplier." The Court of Justice therefore clearly distinguished the two regimes, the first, under the tariff quota (of which a limited amount is allocated to non-traditional ACP bananas) and the second, under the traditional ACP allocation. The correct conclusion was, as the Court of Justice had clearly indicated, that both provisions were in force and applied.
IV.75 The Complaining parties submitted that the combined effect of Article 1 of Protocol 5 and Annexes LXXIV and LXXV was that the EC's obligations were limited, first, to bananas from traditional suppliers on the traditional markets and, second, to providing only a rough approximation to each such ACP supplier of the "situation" "as regards" access and advantages that each supplier enjoyed in particular EC markets before 1991, an obligation that had also to be read in light of the EC's need to establish common rules for bananas. They contained no specific obligations with respect to quantities or prices for traditional suppliers, nor did they contain any obligations whatsoever with respect to non-traditional suppliers. In the opinion of the Complaining parties, nothing in Protocol 5 or other provisions of the Lom?Convention required the EC to import certain volumes of bananas, to maintain a certain free-on-board price, or to implement measures additional to tariff preferences. Moreover, the Lom?Convention did not require country-specific allocations or even a general tariff quota for ACP bananas. Furthermore, the Complaining parties submitted, the EC had no obligations whatsoever with respect to bananas from ACP States exceeding historical amounts or to non-traditional shippers. The requirement was a general one, relating only to the "situation" "as regards" access and advantages prevailing in particular markets before Regulation 404/93.
IV.76 The Complaining parties noted the EC had indeed admitted that it was not required to maintain any free-on-board price, nor any particular volume, an interpretation that was consistent with the view of EC ministers expressed to ACP ministers in 1980. The Complaining parties considered that the EC had conceded that its only obligation was to maintain conditions by which each traditional ACP State's bananas could be effectively sold on the EC market, and that it had admitted that "the means to achieve this are diverse, and are not necessarily limited to tariff changes". The EC had also by implication acknowledged that with respect to at least some traditional ACP exports, a mere tariff reduction from MFN rates would be sufficient to ensure that the EC had met its obligations to ensure a real and effective opportunity to import. According to the Complaining parties, if the EC's obligations with respect to an ACP State could be met by tariff preferences alone, then all the other measures were obviously not covered by the waiver.
IV.77 This interpretation of Protocol 5 and Annex LXXIV was confirmed, in the view of the Complaining parties, by the very different language employed by other provisions of the Lom?Convention in which such guarantees were explicitly provided. For example, Article 213 contained special undertakings on sugar, and Protocol 8, containing the text of Protocol 3 on ACP sugar provided that:
"The Community undertakes for an indefinite period to purchase and import, at guaranteed prices, specific quantities of cane sugar, raw or white, which originate in the ACP States and which these states undertake to deliver to it."
Other Articles in the Protocol also set forth specific quantities that had to be guaranteed. In addition, Protocol 7 on beef and veal stated:
"The Community and the ACP States agree to take the special measures set out below to enable ACP States which are traditional exporters of beef and veal to maintain their position on the Community market, thus guaranteeing a certain level of income for their producers."
Thus, if the EC had wanted to "guarantee" a level of access or advantages, it would, in the opinion of the Complaining parties, have used the appropriate language to do so. Instead, the Banana Protocol only required the maintenance of a general "situation" as regards access and advantages with respect to each supplier. In the opinion of the Complaining parties, a "situation" meant a combination of factors contributing to a "snapshot" of the whole. The use of this term in the Lom?Convention implied that no single element of that situation was guaranteed.
IV.78 To analyze what "advantages" were relevant to the pre-404 "situation" of "each ACP State", it was, according to the Complaining parties, necessary to identify precisely those advantages that existed for each particular state in the past and at the time Regulation 404/93 was promulgated. An examination of this issue revealed that the access and advantages being provided to each ACP State under the current regime substantially exceeded the access and advantages provided by European countries to any single ACP State under previous national regimes. Before the implementation of Regulation 404/93, ACP exports to all member States were duty free. In the Netherlands, Belgium, Luxembourg, Denmark, Ireland and (beginning in 1990) Greece, each ACP State had to compete solely on the basis of a tariff preference of 20 per cent. In Germany, there was no such tariff preference at all, and the import quantities permitted reflected German demand. Spain did not authorize access of ACP bananas, and Portugal subjected most ACP bananas to quantitative restrictions established to protect domestic production, with Latin American bananas supplying the bulk of imports under the quota. In Italy, the only ACP State with reserved access was Somalia. France and the United Kingdom, which normally did not allow significant imports from Latin America, were the only countries to which ACP suppliers on the whole had substantial access reserved for them. Even there, however, no ACP State had a country-specific allocation "reserved" for it. Indeed, traditionally established trading practices - such as Geest's domination of United Kingdom imports from the Windward Islands, and France's division of its market into two-thirds for its domestic suppliers and one-third for its former colonies in West Africa - limited access for various ACP origins.87
IV.79 As a legal matter, therefore, the Complaining parties submitted, with the exception of Somalia, each individual ACP State had received protection from competition in only one of two member States -the United Kingdom or France. In neither case did the ACP bananas in question have a guarantee that either output or past shipment levels would be admitted. In France, total imports were limited by government estimates of French consumption needs. The high price of bananas kept per capita consumption low - at one-half of Germany's level. The United Kingdom, which was supplied primarily by Jamaica and the Windward Islands, imported most of what these countries produced. Geest, the exclusive importer of Windward Island bananas, sold bananas on a consignment basis, did not invest in banana production and, therefore, was interested in shipping as many bananas as possible (with little regard to quality). In neither country was any individual ACP State protected against competition from other ACP bananas. While importers in these closed markets experienced little competition, ACP bananas had to compete with other ACP bananas to enter even these protected markets. For example, Jamaica, the Windward Islands, Belize and Suriname competed for the United Kingdom market. Cameroon, Madagascar and C魌e d'Ivoire competed for one-third of the French market. ACP sales in both markets depended on an annual assessment of consumption needs and price conditions by the relevant competent authorities.
IV.80 Moreover, the Complaining parties noted, none of the European regimes ever guaranteed that any ACP country could send their best shipments from 1962, 1972 or any other period of time. An examination of the dates for the ACP's so-called "best ever" exports demonstrated this point. If countries were guaranteed sales at such a level until 1993, why would their "best ever" levels of exports to the EC have occurred 20 to 30 years ago? For example, Jamaica stated that its "best ever" shipment (201,000 tonnes) to the EC took place in 1965; yet despite the EC's claims that Jamaica was guaranteed this best ever level from the mid-1970s onward, Jamaica chose to ship annual amounts that were usually one third, and often less that 10 per cent, of this "best ever" quantity.
IV.81 In sum, the Complaining parties argued, the "situation" for ACP bananas before Regulation 404/93 was hardly as favourable as the situation created by Regulation 404/93. The excessive country-specific allocations provided by Regulation 404/93, the duty-free treatment for these amounts, the special provisions for so-called non-traditional ACP bananas, the Category B licence criteria, hurricane licences and the excessively burdensome import licensing system imposed on Latin American bananas provided ACP States with a competitive advantage they never previously enjoyed. The fact that the Lom?Convention did not provide any requirement to import certain volumes, to maintain a certain price or to implement any other measures to guarantee market presence was indirectly recognized by the ECJ in the case interpreting the EC's obligations. In distinguishing the EC's obligations with respect to non-traditional bananas, the ECJ noted that the EC was only required "to permit the access" free of duty with respect to historical quantities of bananas.88 Even the ECJ, therefore, only considered Protocol 5 to apply to access opportunities, not sales guarantees. The Commission's 25-page interdepartmental options report prepared in 1992, Setting Up the Internal Market in the Banana Sector, reflected a broader variety of possible approaches. That report explored several single-market alternatives that the Commission deemed satisfied the EC's Lom?Convention commitments on bananas.89 The alternatives included tariff preferences, a programme of financial and technical assistance, a compensation mechanism, a "flexible" dollar-zone quota wherein annual growth would be guaranteed and the possibility of safeguards, as well as a partnership arrangement through which traditional marketers of Latin American bananas would be provided licences on the basis of purchases of ACP and EC bananas. This report did not include the particular measures currently in force.
IV.82 The EC reiterated its view that Protocol 5, Article 1, was self explanatory in indicating clearly the obligations on the EC. As the EC had spelled out, the EC had fulfilled its obligations by: (i) creating a specific and separate system for the importation in the EC market of the ACP traditional banana production; and (ii) by facilitating trade and commercial relations between the EC and the ACP countries through the creation of the so-called Category B licences so as to ensure that the quantities for which access opportunities were given an effective and not only theoretical opportunity to be sold, thus guaranteeing traditional ACP bananas their existing advantages, while not providing by this mean any incentive to purchase ACP bananas. The EC was under a legal obligation under the Lom?Convention to ensure, for traditional quantities of ACP bananas, not just the opportunity of pre-existing access to the EC market, but also the existing advantages on the Community market at the level of their highest sendings in any one year up to and including 1990 (the year the Lom?Convention entered into force). This was certainly an obligation to ensure a real and effective opportunity to import but did not mean that the EC was obliged to effectively import certain volumes of bananas.
IV.83 The EC reminded the Panel that the regime was a market organisation. It set out conditions governing the market, but it was not the Commission itself, or EC member States who did the importing. Thus the guarantee was not that certain volumes were imported, but that market access, in principle and in practice, was maintained, i.e. that the market organisation was structured in such a way that the traditional ACP suppliers were able to find outlets for their bananas. This was much more subtle, and in fact more difficult than simply agreeing to purchase their bananas, because it implied creating a commercial climate in which traditional ACP bananas were attractive to commercial companies. In the same line of reasoning, the EC noted that even if it was not obliged to maintain a certain free-on-board price, it was certainly obliged to maintain conditions by which the ACP bananas could effectively be sold on the EC market, thus guaranteeing the advantages on that market. The means to achieve this were diverse and were not necessarily limited to tariff changes. The so-called Category B licences were another means to guarantee the advantages on the EC market through the reinforced and effective opportunity to import ACP bananas. One point to be retained in any case was that ACP bananas were now exposed to more competition than they were before the entry into force of the EC wide banana market, not less.
IV.84 In this light, the EC recalled the differences in conditions of production had been documented in a study on ACP banana production conducted by CIRAD90. This study found that for 1993, production costs averaged on a national basis, ranged from ECU 325 per tonne to ECU 440 per tonne ($381-$515 per tonne or $6.9-$9.4 per 40 lb box (18.14 kg)) depending on the country. Consideration of f.o.b. prices showed that in 1995, Caribbean ACP countries received approximately $9 per box and African ACP countries approximately $8 per box (these figures had changed little since 1994). A corresponding examination of 1994 f.o.b. prices for Latin American bananas sent to Europe (source UNSO) ranges from $3.7 per box in Guatemala, through $3.8 per box in Honduras, $4.21 per box in Ecuador, $5.1 per box in Colombia to $5.2 per box in Costa Rica. The EC noted, therefore, that even the most competitive ACP countries had production costs well above the prices paid to even the most expensive Latin American suppliers, and that FOB prices for ACP bananas were approximately double those for Latin American sourced fruit; thus ACP countries required special preferential treatment to market their bananas. (Further arguments concerning, inter alia, ACP production costs are given below in section IV.B.2(c) - Import licensing issues.)
IV.85 The EC submitted that the Complaining parties attempted to reduce the scope of Article 1 of Protocol 5 of the Lom?Convention by mainly two means: first of all by establishing comparisons between the provisions on bananas under the Convention and those concerning other agricultural products like sugar, beef or veal etc. This was an extraordinary way of interpreting an international agreement in the EC's view. Under Article 31, paragraphs 1 and 3, of the Vienna Convention on the Law of the Treaties, the need to depart from the text of the agreement in order to interpret its provisions was limited to a case where the text itself was unclear or ambiguous and when the parties could not agree on its interpretation. Article 1 of Protocol 5 was according to the EC, clear and unambiguous. Moreover, the contracting parties to the Lom?Convention agreed completely about how it should be interpreted. This interpretation was acknowledged by the parties to have been correctly reflected in the EC legislation providing for preferential treatment for the ACP traditional bananas. The second way of reducing the scope of Article 1 of Protocol 5 was to try to shift the interpretation to subtle, and rather arcane differences between a "guarantee of a level of access" and the "maintenance of a general situation as regards access and advantages with respect to each supplier". The attempt was so subtle that it tended to be invisible and one might find the end result surprisingly identical. In fact, the EC could agree that the text of Protocol 5 of the Lom?Convention referred to "situations". But this in a context of a negative phrase stating that "no ACP State shall be placed, as regard access to its traditional markets and its advantages on those markets, in a less favourable situation than in the past or at present". The contracting parties to the Lom?Convention agreed that this unambiguous text meant what it said: any aspect of the access to the EC market of ACP bananas and, moreover, any advantage on those markets should be maintained in a not less favourable situation than in the past (before the entry into force of the Lom?Convention) or at present (taking into account existing realities which were not present in the past but still affected the access of bananas to the EC market and their advantages on this market). A situation was a combination of circumstances at a given moment: this meant that the single elements might change through time while not affecting the compliance with Article 1 of Protocol 5 if the overall result, the situation of access to the EC market and of advantages on that market, was maintained. This was again something the EC had always indicated and that fundamentally contradicted and undermined the Complaining parties' suggestion that the waiver was concerned with "required" measures and not, more correctly as the EC had always maintained, with the end result of their application, the "preferential treatment". The EC's analysis showed beyond any doubt, in the view of the EC, that the reading the Complaining parties have made Article 1 of Protocol 5 was not only restricted but, more fundamentally, wrong.
IV.86 The Complaining parties considered that the EC had admitted that its only real requirement under the Convention was to maintain "conditions of effective sale" for ACP bananas. Although the EC had conceded that this did not require guaranteed volumes, prices or market shares, it had shed no further light on this alleged requirement. Instead, it had asked Members to give it unlimited discretion to promote ACP interests as it saw fit, even if it meant choosing options that were most likely to create unnecessary barriers and burdens for other developing countries in the WTO - with respect not only to bananas but to the great number of other products covered by the Convention. The Complaining parties considered such a theory was inconsistent with what the WTO represented for developing countries. In particular, if the waiver was permitted to erect such non-tariff barriers against exports of non-ACP developing countries, the WTO could hardly meet its objective of ensuring that all developing countries secured a "share in the growth of international trade". The Complaining parties further stated that they did not seek the destruction of ACP banana production, but only asked that preferences be provided in accordance with the WTO. Furthermore, they did not see why the needs of ACP countries should be met at the expense of the most basic principle of international trade upon which all countries relied to develop, that of comparative advantage. Finally, the Complaining parties considered that if the EC were really interested in helping developing countries, it would adopt a system that encouraged banana consumption in the EC and permitted the market to grow at its previous rate. Such a course would create jobs in all banana exporting countries.
Parties' subsequent arguments - non-traditional ACP tariff preferences
IV.87 The EC referred to the horizontal issue of the Lom?waiver and noted it had shown that it covered not only traditional ACP tariff preferences, but also tariff preferences applied to non-traditional ACP banana imports. Specifically with respect to the Complaining parties argument that the EC preferential treatment to non-traditional ACP bananas was inconsistent with Article I of the GATT, the EC recalled that the preferential treatment accorded to ACP bananas within the tariff quota (duty free for 90,000 tonnes) and when applying duty beyond the tariff quota (ECU 100 per tonne less than the bound duty) was not part of the EC Schedule LXXX, since it flowed directly from the relevant obligations under the Lom?Convention and was therefore covered by the Lom?waiver. Although non-traditional ACP bananas were not covered by the obligations of the EC under Article 1 of Protocol 5, under Article 168(2)(a)(ii) the EC had undertaken to "take the necessary measures to ensure more favourable treatment than that granted to third countries benefiting from the most-favoured-nation clause for the same product". This provision did not exclude bananas. The complainants argument was thus based on the wrong assumption that the Lom?waiver covered only the preferential treatment accorded by the EC to ACP countries which was related to the sole obligations under Protocol 5 to the Lom?Convention, and, more particularly, to the sole Article 1 of that Protocol. The general interpretative arguments set out above showed, in the view of the EC why this understanding was wrong and did not correspond either to the will of the contracting parties to the Lom?convention or to the scope of the Lom?waiver itself.
IV.88 A duty-free treatment was a more favourable treatment than a ECU 75 per tonne duty imposed as MFN treatment within the tariff quota. A reduction of ECU 100 per tonne was more favourable treatment than the MFN treatment for quantities imported outside the tariff quota. No extension of this treatment to any other Member under Article I:1 of GATT could be claimed in the light of the terms of the Lom?waiver. As far as the fact that a certain quantity of bananas of ACP origin were benefiting from this more favourable treatment (and not countries, as the complainants had phrased it), more favourable treatment included not only tariff preferences but any other preference which might be appropriate in the circumstances of the case to achieve the objectives under the Lom?Convention. While implementing this more favourable treatment obligation by according a duty free treatment to non-traditional ACP bananas, the EC had substantially limited that treatment to a capped quantity of bananas, thus striking a very difficult political balance between different interests on the market; it amounted to a concerted effort between the ACP and the EC to maintain a fair balance between their access to the EC market and the general MFN treatment. It was really paradoxical, in the opinion of the EC, that this limitation should be seen as a violation of WTO rules: this approach should be dismissed.
IV.89 Moreover, the EC submitted, Article 168(2)(d), first indent, stated that:
"If during application of the Convention, the EC subjects one or more products to common organisation of the market..., it shall reserve the right to adapt the import treatment for those products originating in the ACP States, following consultations within the Council of Ministers".
Consequently, when the common organisation of the market for bananas was set up, the Council of Ministers decided that non-traditional ACP quantities of bananas should enjoy duty-free access (Article 18(1) of Regulation 404/93) within the EC tariff quota, thus ensuring that they were treated more favourably than other third-country suppliers who were subject to a duty of ECU 75 per tonne.
IV.90 According to Guatemala and Honduras, they had shown that the Lom?Convention, as qualified by Protocol 5 and Annex LXXIV, solely required the provision of duty-free access and specified direct aid to traditional ACP banana suppliers. Since non-traditional banana preferences were not covered by the Lom?Convention, they could not be considered to be "required by the relevant provisions of the Fourth Lom?Convention" such that the Lom?waiver would apply.91 The tariff discrimination at issue likewise found no support under the three limited exceptions to Article I:1 contained in Articles I:2, XX and XXIV of GATT.
IV.91 The Complaining parties submitted that the EC had not denied that its application of preferential tariff rates to so-called non-traditional ACP bananas was inconsistent with Article I:1 of GATT. Rather, the EC had claimed that Article 168 of the Lom?Convention required it to provide this treatment and that, accordingly, the discrimination at issue was allowed by the Lom?waiver. The EC's claim contradicted, in the opinion of the Complaining parties, its statement in its Report on the Operation of the Banana Regime that "the Community's obligations to the ACP States as embodied by the Lom?Convention have to be honoured. On bananas, these are set out in Protocol 5 to the Convention."92 The EC's claim also contradicted the understanding EC Commission officials had concerning EC obligations under the Lom?Convention in 1992 when making plans for a single market. In considering various options, EC Commission officials did not consider that the Lom?Convention required the EC to provide anything more than most-favoured-nation treatment to non-traditional ACP bananas. For example, the Commission's May 1992 options paper stated that "bananas from the non-traditional ACP suppliers and non-traditional quantities from traditional ACP suppliers would be treated in the same way as bananas from the dollar zone."93 A review of the relevant provisions of the Lom?Convention, confirmed that nothing required the EC to provide this preferential treatment to bananas from non-traditional ACP suppliers or with respect to quantities exceeding historical shipments of traditional ACP suppliers.
IV.92 As discussed above, the Complaining parties argued that, Article 168 of the Lom?Convention was exclusively defined and qualified by Protocol 5 and Annexes LXXIV and LXXV. Since Protocol 5 and the two relevant Annexes spoke only of traditional suppliers and referenced the past or present "situation" (up to 1991), the "non-traditional" quantities receiving any preference under the regime could not possibly be considered required by the Lom?Convention. By definition, with respect to traditional suppliers, non-traditional bananas were those exceeding traditional amounts. Annex LXXV explicitly excluded the non-traditional suppliers from EC obligations. Moreover, the EC Commission recognized in its 1992 options report that preferential allocations or tariff treatment for "non-traditional" ACP bananas were not required by the Lom?Convention when it discussed what it deemed to be a Lom?Convention - consistent "partnership" option in which "non-traditional ACP suppliers and non-traditional quantities from traditional ACP suppliers [were to] be treated in the same way as bananas from the dollar zone."94
IV.93 With respect to the duty-free treatment provided to non-traditional ACP bananas, the Complaining parties considered that one needed to look no further than to the EC's own highest legal authority for a contradiction of the EC's position in this case. In its Judgment of 5 October 1994, on the challenge brought by Germany against the EC Council (Case C-280-93), the EC Court of Justice interpreted Protocol 5 of the Lom?Convention as limiting the EC's obligations on bananas. The Court declared that the EC was obliged to permit the access, free of customs duty, only of the quantities of bananas actually imported at zero duty in the best year before 1991 from each traditional ACP State. The Court noted that Annexes LXXIV and LXXV "confirm that the EC's only obligation is to maintain the advantages, with respect to access of ACP bananas to the EC market, which the ACP States had before the Lom?Convention." In sum, this meant, according to the Complaining parties, that there was no requirement to provide duty-free treatment to suppliers such as the Dominican Republic, that had not been party to the earlier Lom?Conventions, and there was no access or advantage obligation whatever with respect to quantities that exceeded the so-called traditional amounts supplied by traditional suppliers such as the C魌e d'Ivoire and Cameroon. Protocol 5, which was specifically applicable to bananas, superseded any more general obligations in the Lom?Convention. Therefore, since the discrimination was not required by the Lom?Convention, the EC was obliged, by Article I:1 of the GATT, to accord immediately and unconditionally to third countries the same treatment as it accorded to non-traditional ACP bananas.
IV.94 With respect to the specific reference made by the Complaining parties to the Court of Justice of the European Communities in its judgement in the case Germany v. Council of the European Union. The EC submitted that there was no contradiction between the position expressed. In the decision the Court of Justice stated: "with respect to the establishment of a tariff quota, the import of bananas from ACP States falls under Article 168(2)(a)(ii) of the Lom?Convention". The Court then added: "In accordance to Protocol 5, the Community is obliged to permit the access, free of customs duty, only of the quantities of bananas actually imported "at zero duty" in the best year before 1991 from each ACP State which is a traditional supplier." The Court of Justice therefore clearly distinguished the two regimes. The correct conclusion was, as the Court of Justice had clearly indicated, that both provisions were in force and applied.
(ii) Third-country tariff rates
IV.95 Guatemala and Honduras submitted that prior to Regulation 404/93, the EC applied a 20 per cent ad valorem tariff rate to fresh bananas, a rate which had been bound in the GATT 1947 and in effect since 1963. The ad valorem bound rate for bananas was revoked by Regulation 404/93 et seq. and replaced with a two-tiered structure. This new tariff structure raised the bound rate in two ways. First, it introduced two rates of duty, where previously there was only one, the higher of which was set at a trade-prohibitive level to prevent over-quota shipments. Second, it changed the valuation method from ad valorem to specific, which conversion further increased the tariff liability and made that liability harder to predict. Well after the 20 per cent ad valorem binding had been withdrawn, the EC notified the GATT CONTRACTING PARTIES, on 19 October 1993, of its intention to renegotiate the 1963 binding pursuant to Article XXVIII:5 of the GATT 1947. For Costa Rica, Colombia, Nicaragua and Venezuela, those negotiations led to the BFA. For Guatemala, no renegotiation of the binding occurred. When Guatemala signed the Marrakesh Agreement, its signature was accompanied by an express reservation of all past, present, and future trade rights relative to the EC's treatment of bananas. Guatemala accordingly reasserted the claim it had successfully put forward in the second Banana panel, but which continued to go unheeded by the EC, that the new tariff rates effectuated by Regulation 404/93 et seq. were inconsistent with enduring Article II rights arising from the EC's 20 per cent ad valorem tariff binding.
IV.96 According to Guatemala and Honduras, Article II:1(a) of the GATT imposed on Members an absolute requirement to "accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement". GATT panels had rigorously applied this requirement, recognizing the "fundamental importance of the security and predictability of GATT tariff bindings, a principle which constitutes a central obligation in the system of the General Agreement."95 To protect that security, even small changes to tariff bindings, including those that did not even increase the protective effect of the tariff in question, had been disallowed.96 The second Banana panel remained faithful to that strict Article II construction, ruling that because the specific nature of the banana tariffs of Regulation 404/93 "led to the levying of a duty on imports of bananas whose ad valorem equivalent was, either actually or potentially, higher than 20 percent ad valorem", Article II had clearly been breached.97 The panel stressed that, consistent with prior Article II interpretations, the mere possibility that the specific tariff rates applied to third-country bananas by the EC might be higher than the corresponding bound ad valorem rate rendered them inconsistent with Article II. Guatemala and Honduras submitted data showing the following three-month average ad valorem equivalencies: (a) based on 1993 data: (i) ECU 100 per tonne - 30.03 per cent; and (ii) ECU 75 per tonne - 22.6 per cent; and (b) based on 1995 data: (i) ECU 850 per tonne - 255.3 per cent; and (ii) ECU 822 per tonne - 247.3 per cent.98 Since in the present action, all tariff quota third-country rates, past and present, had, according to Guatemala and Honduras, exceeded in actuality the 20 per cent rate, no different conclusion could be reached.
IV.97 Guatemala and Honduras noted that the second Banana panel further observed that the Article II inconsistency arising out of Regulation 404/93 was in no way altered by the EC's Article XXVIII:5 notification regarding its intention to modify the 20 per cent tariff binding. That notification was of no legal consequence to the breach, the panel concluded, because the EC had improperly commenced Article XXVIII negotiations following the withdrawal of the concession, rather than prior to the withdrawal, as required by Article XXVIII. Thus, the EC's selective undertaking of Article XXVIII negotiations with Costa Rica, Colombia, Nicaragua, and Venezuela should be considered to have had absolutely no impact on Guatemala's continuing Article II rights. Those Article II rights also remained unaltered by Guatemala's accession to the WTO. Guatemala fully preserved its pre-WTO Article II claim by expressing a reserve during the Uruguay Round verification process and again by posting a formal reservation to the Marrakesh Agreement as to "all GATT and WTO rights relative to the EC's Schedule of concessions for agricultural products as regards bananas."99 Moreover, even without that reservation, the panel on United States - Restrictions on Imports of Sugar found that countries would not be inferred to have accepted, or acquiesced to, terms contained within a schedule of concessions arising out of a multilateral negotiation if those terms were otherwise actionable under the GATT100. This point was confirmed in the first Banana panel case.101 Similarly, in EEC - Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes, that case's finding of tariff impairment was predicated on the principle that tariff binding rights were not extinguished by subsequent tariff negotiations.102 Thus, here, where Guatemala had expressly dissented, not consented, to the EC's breach of the 20 per cent binding and had reserved all claims related to it, its rights also should be ruled to have carried through to the new WTO. The tariff structure accorded to third-country suppliers should consequently be deemed inconsistent with Article II and brought into full conformity with the relevant provisions of the GATT.
IV.98 The EC submitted first of all, that it did not accept the calculations made. Second, and more importantly, in establishing the tariff quota the EC had violated no GATT rule including Article II. The EC noted the reference to the unadopted report of the second Banana panel. Without even the need of entering into the examination of that panel report - which, like every unadopted panel report, had no authority whatsoever since the GATT CONTRACTING PARTIES never accepted nor endorsed its conclusions - it would be sufficient to say that the panel worked on a factual situation totally different from the present one. At the time of the report, the Uruguay Round had not been completed and the tariff quota was not in force. The EC could not see how the report could be of any use or relevance under these circumstances.
IV.99 Moreover, Members freely signed and ratified the Uruguay Round which included, inter alia, the EC Schedule LXXX which had been, therefore, unconditionally accepted by all. Any comparison with the past, in a situation where a new general negotiation had taken place, was not only unacceptable but deprived of any logical base unless the Members were ready to accept that the Uruguay Round negotiations were not over after all, and any new settlement under that Round was susceptible to be reopened at the good will of any of the contracting parties. There was no doubt that any guidelines that existed for scheduling in the agricultural sector were left out of the Agreement on Agriculture on purpose. It was the clear view of the participants in the negotiation that, after the verification process of early 1994, there would be no chance to second-guess the agricultural bindings agreed in the Uruguay Round.
IV.100 The EC also submitted that none of the previous GATT litigations quoted were relevant to the present dispute: The panel report United States - Restrictions on Imports of Sugar indicated only that a schedule of concessions "cannot justify the maintenance of quantitative restrictions ... inconsistent with the application of Article XI:1". The issue solved by that panel was therefore related to the existence of any violation of a GATT provision (outside Part I of the General Agreement) that could not be justified by the contrary indications of the schedule. This was not relevant to the present case where the possibility of shaping differently the schedules (from an ad valorem duty to a tariff quota) was disputed. The unadopted second Banana panel report never addressed the issue claimed: the issue there was about the applicability of the well-known international law principle of the "estoppel" and its consequences on that dispute. The unadopted panel report just underlined that the "mere fact that the EEC had notified [these] restrictions to the CONTRACTING PARTIES, and that such measures had not been acted upon until now had not changed the obligations under the General Agreement". The present situation was not one of "a mere" notification of a restriction to otherwise passive parties: a schedule was negotiated during an official Round and expressly accepted by the CONTRACTING PARTIES by their ratification and the "estoppel" principle was simply not an issue here. Lastly, the unadopted panel report EEC - Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes dealt with a "non-violation" claim concerning the introduction of subsidies which could have impaired tariff concessions granted by the EC under the Schedule. The unilateral introduction of certain subsidies, while the EC Schedule concerning those products remained unmodified, set off the dispute. The EC argued here again that nothing in that procedure was relevant to the present situation which dealt with the explicitly accepted modification by the EC of one of its Schedules during an official Round of negotiations.
IV.101 Guatemala argued that it had shown that the EC had only completed its 20 per cent tariff binding renegotiations with Costa Rica, Colombia, Nicaragua and Venezuela, but had yet to conclude those Article XXVIII renegotiations with all other Members that had a trade interest in that binding. Guatemala argued that it had likewise shown that the verification process with respect to the EC's tariffs on third-country bananas was not concluded prior to the Uruguay Round ratification. With these procedures unfinished, GATT law made clear that all rights and interests attaching to the EC's breach of its 20 per cent binding continued to be enforceable. The EC disagreed, according to Guatemala, arguing that all legal shortcomings relating to the binding were cured by Guatemala's signature in Marrakesh. According to the EC, underpinning that argument were the concepts of "acquiescence" and "estoppel". The first Banana panel report made clear, however, that "acquiescence" and "estoppel" were generally only relevant under GATT law in cases where contracting parties expressly had consented to forego their GATT rights.103 Guatemala could not be said to have granted its consent, express or implied, to the tariff quota tariff rates. Other panel reports reinforced Guatemala's opinion that the EC's breach of binding was not cured by the EC's Uruguay Round Schedule. The Sugar Panel found that countries would not be inferred to have acquiesced to terms contained within a schedule if those terms were otherwise GATT-illegal.104 The EC's attempt to narrow the reach of the sugar decision to GATT obligations outside of Part I was, in the opinion of Guatemala, not supported by that panel's unqualified language that "[Article II] could not justify inconsistencies with any Article of the General Agreement".105
IV.102 The EC's rejection of the ad valorem equivalency calculations presented by Guatemala was also without merit. If the EC wished to disprove the technical breach of the binding at issue, it should provide supporting details. No such supporting details existed. Calculations comparable to those supplied in the first submission of Guatemala and Honduras were also submitted in the second Banana panel, leading the panel to conclude that:
"The EEC had neither argued nor submitted evidence that this tariff could never exceed 20 per cent ad valorem ... . The Panel consequently found that the new specific tariffs led to the levying of a duty on imports of bananas whose ad valorem equivalent was, either actually or potentially, higher that 20 per cent ad valorem."106
IV.103 Guatemala submitted that since that Article II finding had neither been redressed nor legally altered by subsequent events, it had to be reaffirmed in the present action. Although Guatemala alone had asserted the Article II claim, the Panel's ruling on this issue should have legal effect for all other Members that had a trade interest in the 20 per cent EC binding. Their right to this Article II claim was confirmed by the first Banana panel report, which made clear that the mere failure of a country to make a claim was not an expression of that country's consent to release the EC from its GATT obligations relating to that measure.107
IV.104 The EC replied that the legal situation was clear: the Marrakesh Protocol indicated that "The schedule annexed to this Protocol relating to a Member shall become a schedule to GATT 1994 relating to that Member on the day on which the WTO Agreement enters into force". By ratifying the Uruguay Round package, Guatemala had accepted the whole EC Schedule LXXX and the banana tariff quota that appeared in that Schedule. Guatemala then claimed it had "preserved" its rights under a declaration attached to the Marrakesh Agreement. If any effect was given to such a declaration, it would reduce the scope of Guatemala's ratification of the Marrakesh Protocol which was an integral part to GATT. A declaration with that purpose could not, according to the EC, be defined differently as a reservation.108
IV.105 Furthermore, the EC submitted, Article XVI:5 of the WTO Agreement indicated that "no reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements". The GATT did not provide for any right to introduce a reservation. Thus, any declaration to that effect was inadmissible under the GATT and would be deemed as having no legal value. Consequently, all references to previous panels quoted by the Complaining parties were of no avail for the simple reason that those panels could not have taken into account, in their analysis, the existence of provisions like Article XVI of the WTO approved after the release of those reports.
IV.106 Concerning the issue with respect to the non-verification of the EC Schedule as raised in a question by the Panel, the EC submitted that no evidence had been presented to substantiate this claim, as indeed none could be since the Chairman of the Trade Negotiations Committee did not mention the EC Schedule among the non-verified ones at that Committee's next-to-last meeting of 30 March 1994. Guatemala itself, which had reserved its position on the EC banana offer at the same meeting, did not see fit to pursue the matter at the following and last meeting of the Committee on 7 April 1994. The EC also referred to the note of the GATT Secretariat in document MTN.GNG/MA/W/25 in which the closing date for the verification period for schedules was indicated as 31 March 1994. The EC's corrigendum on its banana concession was dated 29 March 1994. Nevertheless, there was no legal effect on the binding nature of the EC Schedule even assuming that such lack of completion of (re)negotiation and verification was indeed the case. The Marrakesh Protocol to the GATT 1994 was extremely blunt in this respect:
"The schedule annexed to this Protocol relating to a Member shall become a Schedule to GATT 1994 relating to that Member on the day on which the WTO Agreement enters into force for that Member."
By ratifying the Uruguay Round package, including the schedules annexed to it, Members had accepted the schedules as binding on themselves and others. Even if irregularities had occurred during the procedures leading up to the establishment of these schedules (assuming that these procedures were subject to binding rules), the final ratification of the schedules and the impossibility to make any reservations to any provision (including the schedules) of the Agreement, unless such reservations were provided for in the Annex IA agreements (which was not the case in respect of the schedules), made it impossible to call into question the schedules as contained in the results of the Uruguay Round (Article XVI:5, WTO Agreement). The parties in this case had not alleged fraud, corruption or coercion (Articles 49-51 of the Vienna Convention of 1969) in order to invalidate the schedules. Hence the schedules, including the EC consolidated tariff on bananas and the tariff quota, were part of a duly ratified agreement and could not be called into question any more.
(b) Allocation issues
IV.107 This section outlines the case concerning allocation matters. It sets out first general allocation issues and then the issue of the reallocation of shortfalls in the context of the BFA.
(i) General allocations
IV.108 The general arguments of the Complaining parties concerning the requirements of Article XIII:2 of GATT are set below, followed by the EC responses to the claims and subsequent arguments by the Complaining parties. The EC responses include the major horizontal issues raised by the EC: (i) the presence of two separate banana access regimes; and (ii) the Agreement on Agriculture and its relationship to Articles I and II of GATT. Following the Article XIII:2 arguments, parties' arguments in relation to Article XIII:1 and Article I:1 are covered. Finally, arguments concerning the application of the Lom?waiver to allocation issues are presented.
IV.109 The Complaining parties submitted that the EC had allocated access to its market among supplying countries in a manner inconsistent with GATT Article XIII:2. Guatemala, Honduras, Ecuador and the United States argued that the EC provided country-specific allocations to some countries (ACP and BFA signatories), while not providing them to others with similar or greater levels of past trade. Furthermore, the Complaining parties submitted that most of the allocations provided to those favoured countries greatly exceeded the shares of trade they would be expected to obtain in the absence of restrictions. The Complaining parties considered that the EC also disregarded the principles of Article XIII entirely when it provided BFA signatories the exclusive right to increase their access when other BFA countries experienced a shortfall in the quantity they could supply to the EC. In addition, Guatemala, Honduras, Ecuador and Mexico considered these aspects of the EC allocations violated Article XIII:1, and Guatemala and Honduras considered that, in the alternative, they were inconsistent with Article I.
Article XIII:2 of GATT
Arguments of the Complaining parties
IV.110 The Complaining parties submitted that the EC had not complied with Article XIII:2 of GATT, which sets out the general principle that governed the allocation of a market among various supplying countries. Under that provision, "In applying import restrictions to any product," Members "shall aim at a distribution of trade in such product approaching as closely as possible the shares which [third country Members] might be expected to obtain in the absence of such restrictions." Paragraph 5 of Article XIII confirmed that the provisions of Article XIII applied to any tariff quota instituted or maintained by any Member. Referring to the panel on Dessert Apples, Ecuador, Guatemala, Honduras and the United States considered that Article XIII was lex specialis with respect to the provision of country allocations109.
IV.111 The Complaining parties considered that Article XIII:2(d) set forth two ways in which a Member could divide up its market and be presumed to comply with the general principle. Either the EC could have allocated shares to all substantially interested parties (if it obtained the consent of each and every one), or, in the absence of such agreement, it could have provided shares according to historical shipments during a representative period (in other words, in the absence of restrictions). If, in addition, the EC had chosen to assign shares to parties that did not have substantial interests, it had, nonetheless, to abide by the general principle of Article XIII:2. The EC, according to the Complaining parties, had not complied with any of these requirements.
IV.112 The United States noted that part of the EC market was reserved for country-specific allocations (which were not bound in the EC Schedule) provided to traditional Lom?countries110, including non-WTO Members, whereas access to the rest of the market was limited by the third-country tariff quota, divided among country-specific allocations for non-traditional Lom?bananas (bound only in their totality) and for bananas exported by Latin American countries that had signed the BFA, which were also bound in the EC's Schedule. The remainder of the third-country tariff quota was allocated to a residuary "other" category for countries not otherwise receiving country-specific allocations.
IV.113 Ecuador noted that the EC had allocated country specific shares of the EC import market to traditional ACP countries, to Latin American countries which had signed the BFA, and to certain non-traditional ACP suppliers. The remaining portion of the import market had been allocated to a catch-all "others" category, which included all third countries not included in the first three categories. This allocation scheme violated, according to Ecuador, Article XIII of the GATT in two ways. First, the scheme provided country-specific allocations to certain countries while denying country-specific allocations to other countries such as Ecuador which had a substantial interest in exporting bananas to the EC. Second, the allocation of the shares between the various countries and groups of countries did not reflect commercial or historical trade patterns.
IV.114 In both of the options set out in Article XIII:2, Ecuador considered, allocations had to be made to all countries having a "substantial interest." Under virtually any criteria, Ecuador had to be considered as having a substantial interest in exporting bananas to the EC. Ecuador was one of the largest suppliers of bananas to the EC market and the banana industry was the second largest sector of Ecuador's economy. Ecuador's interest in exporting bananas to the EC was clearly more substantial than that of other countries which were given country specific allocations under the tariff quota. ACP countries and certain of the BFA signatory countries which were given country-specific allocations historically accounted for only a very small portion of all exports to the EC. Many of these countries, such as Belize, Cape Verde, the Dominican Republic, Grenada, Haiti, Venezuela, and Madagascar, accounted for less than 1 per cent of all imports between 1989 and 1991. Other countries in this category, such as Cameroon, C魌e d'Ivoire, Dominica, Jamaica, Nicaragua, Somalia, St. Lucia, St. Vincent and the Grenadines, and Suriname accounted for less than 5 per cent of all imports of bananas into the EC during this period. Despite the fact that Ecuador had a more substantial interest than any other country in exporting bananas to the EC, the EC had failed to agree upon a country-specific allocation with Ecuador. In the opinion of Ecuador, the EC regime was, therefore, inconsistent with Article XIII.
IV.115 According to Guatemala and Honduras, the allocation discrimination found no support in the provisions of Article XIII:2(d) which allowed quota allocations among supplying countries under specially circumscribed conditions. Article XIII:2(d) required that the EC either obtain an agreement regarding allocations from all Members having a "substantial" supplying interest or, where that approach was "not reasonably practicable," accord allocations that corresponded to shares during an unrestricted representative period. Guatemala and Honduras noted that the term "substantial interest" was not defined in Article XIII and was elsewhere established as "not capable of a precise definition."111 Nevertheless, the EC had not attempted to follow any discernable "substantial interest" analysis based on what "might be expected ... in the absence of such restrictions." The most that could be said about its volume methodology was that it drew from periods of time in which illegal EC national policies were in effect. Even within those periods, however, a "substantial interest" approach was not pursued. Some of the preferential allocations, as in the case of Cape Verde and Somalia, were conferred to countries that were not even signatories of the WTO. Guatemala and Honduras, on the other hand - both of which were Members and both of which had greater trade interests than some or all traditional ACP suppliers - were denied the benefit of equivalent agreements. While the EC provided specific allocations even to the smallest ACP supplying countries, the EC had not awarded allocations to many third countries, including Guatemala and Honduras, that historically shipped greater volumes to the EC. Thus, the EC quite clearly ignored the "substantial interest" standard of Article XIII:2(d). The EC likewise could not defend its discriminatory tariff quota allocations on the grounds that the Complaining parties had the opportunity to accept source-specific allocations, but declined to do so. The EC had made clear that allocations would not be accorded to the Complaining parties unless they acquiesced to all illegalities inherent in the regime. Such an "opportunity" could not be seen as a legitimate exercise of fair trading interests. Tariff quota allocations were accordingly inconsistent with Article XIII:1 and XIII:2, and should be eliminated from the regime. The irregular allocation of tariff quota market share also violated the established requirement of Article XIII:2 that Members accord a distribution of trade comparable to that which would occur under unrestricted circumstances. Here, shares were guaranteed for certain sources, but not for similarly-placed other sources, a phenomenon that obviously would not occur under unrestricted market circumstances.
IV.116 Guatemala and Honduras submitted that when Regulation 478/95 incorporated the BFA into the tariff quota, effective March 1995, it included tariff quota source allocations which assured inflated country-specific shares or volumes to numerous countries based on shares that prevailed under the national regimes, while forcing a deflated single "basket" portion to all others. The inflation of shares for every one of the BFA beneficiaries, and the deflation of shares for all others, pointedly demonstrated that preferential allocations were not only accomplished, but intended, by this apportionment.
IV.117 The United States was of the view that the EC's distribution of market access did not reflect an attempt at a distribution of trade approaching as closely as possible the shares which Members could have been expected to obtain in the absence of restrictions. With respect to countries with a "substantial interest," the distribution did not reflect either of the two prescribed methods dependent on proportions supplied during a representative period. Indeed, the EC did not appear to have used consistently any criterion or set of criteria in allocating access to its market. In the first instance, the EC did not even use as a criterion membership in the GATT or WTO. The EC had awarded allocations to Cape Verde and Somalia, neither of which was a signatory of the GATT or the WTO agreements, while not awarding allocations to long-standing larger banana suppliers that were signatories.
IV.118 With respect to Members, the EC did not appear to have considered any particular historical period as being representative for purposes of allocating shares of its market. The period 1989-91, which the EC claimed to have used to determine the size of the initial third-country tariff quota and to allocate import licences among the various "operators" could hardly, in the opinion of the United States, be considered "representative" in any event, since GATT-inconsistent restrictions on non-ACP bananas were in force at the time in several EC member States. However, even in 1989-91, with discriminatory restrictions in place, Ecuador was one of the EC's largest suppliers, with 15.53 per cent of global (including ACP) imports into the EC-12 (18.65 per cent in 1990-92). Counting only Latin American and other third-country suppliers, Ecuador had supplied well over 20 per cent of the EC-12 market in the years before Regulation 404/93. Since Ecuador had not agreed to the EC shares, the EC had surely failed to allocate the tariff quota in accordance with either of the methods prescribed by Article XIII:2(d) with respect to substantially interested parties. In contrast, the United States argued, although none of the ACP nations achieved even a 5 per cent share during the 1989-91 period, the EC awarded them all specific shares of the EC market. Several ACP nations to which the EC had awarded allocations did not even supply 1 per cent of total EC imports during the 1989-91 period; Madagascar shipped as little as 23 tonnes. Likewise, the EC had allocated a specific share to a BFA signatory, Venezuela, which supplied only 90 tonnes during 1989-91. The United States presented the following table:
EC-12 Imports: 1989-91 and 1990-92
compared to country allocations
St. Vincent and the Grenadines*
All Other Imports
* ACP country
Further, the United States noted that Article XIII did not appear to bar a country from providing allocations to countries that did not meet the substantial interest criteria but, in the opinion of the United States, the EC had to do so consistently with the general principle in Article XIII:2. In the opinion of the United States, the EC's regime was not based on such considerations. As set out in the above table the EC had provided allocations to many very small suppliers, but had not awarded allocations to many other countries with greater or nearly equivalent historical shipments. For example, during the EC's claimed representative period (1989-91), EC figures showed that El Salvador shipped roughly the same very small level of exports to the EC as Venezuela, and the United States exported over 20 times the quantity as Venezuela. Yet the EC gave only Venezuela a specific allocation. Likewise, the EC had awarded Belize and Nicaragua specific allocations based on average exports of 23,412 tonnes and 47,292 tonnes, respectively, while not granting an allocation to either Guatemala or Honduras, which had average exports of 28,128 tonnes and 136,910 tonnes, respectively. Thus, whatever criteria the EC had employed in establishing allocations for some countries, those same criteria had not been applied to other countries supplying similar or greater proportions of EC trade. The first sentence of Article XIII:2 did not permit the EC to provide country-specific allocations to some countries, and not to others, with disregard for the similarity of the countries' historic shipments. If Cape Verde, Dominican Republic, Somalia and Suriname had sufficient trade to warrant specific allocations, then so did Guatemala, Honduras and the United States.
IV.119 Moreover, the United States pointed out that the EC did not apply consistently its 1989-91 "representative period" or any other apparent economic criterion when determining the precise allocations for those nations to which it gave such allocations. For example, St. Lucia supplied an average of 115,387 tonnes during 1989-91 and received an allocation equal to about 4.15 per cent of the EC's market, while the C魌e d'Ivoire shipped less than St. Lucia (an average of 98,914 tonnes) and received a greater allocation (5.07 per cent). Likewise, Jamaica shipped an average of 57,505 tonnes and received an allocation equal to 3.43 per cent, and St. Vincent and the Grenadines supplied an average of 70,732 tonnes and received an allocation equal to 2.68 per cent. Similar inconsistencies would have prevailed if the EC had used a later representative period, such as 1990-92.
IV.120 The United States further claimed that the EC market allocation did not reflect historical shares within the third-country tariff quota. For example, among those countries currently subject to the tariff quota, Colombia's 1990-92 share of the EC-15 market, was under 19 per cent, compared to its allocation of 21 per cent presently. Also, the EC had failed to obtain the agreement of Ecuador, one of its major, obviously substantial, suppliers, or to provide Ecuador with an appropriate allocation along historical patterns of trade, as required by Article XIII:2(d). Moreover, the arbitrary manner in which the EC had provided country-specific allocations, even assuming that the restrictive, discriminatory period of 1989-91 were representative, demonstrated the EC's failure with respect to even the smallest suppliers to allocate its market to approximate the shares that would prevail in the absence of restrictions, in accordance with the first sentence of Article XIII:2.
IV.121 Ecuador argued that in addition to the portion of the EC import market allocated to traditional ACP suppliers, the EC had allocated additional shares to Costa Rica, Colombia, Nicaragua and Venezuela, and to certain non-traditional ACP sources. These allocations were created through the BFA and the regulations implementing this agreement. The EC, Colombia, Costa Rica, Venezuela and Nicaragua concluded the BFA as part of a settlement of an earlier GATT challenge to the EC banana regime brought by the four Latin American countries along with Guatemala. In 1994, Colombia, Nicaragua, Venezuela, Costa Rica, and Guatemala challenged the EC import regime before a GATT panel. Although the panel found that several aspects of the regime violated GATT, the EC blocked the adoption of the panel report. However, as a condition for dropping their case against the EC, four of the five complaining countries concluded the BFA with the EC. The BFA granted each of the Latin American signatories country-specific shares of the tariff quota and adopted various other preferential and discriminatory import procedures. The allocation of tariff quota shares to the signatory countries did not represent, according to Ecuador, any rational distribution based on historical or commercial factors. Rather, the allocation was the arbitrary result of a political compromise.
IV.122 According to Ecuador, the BFA allocated the third-country tariff quota as follows:
Dominican Republic and other ACP countries
IV.123 The category "other" listed in the table included all other third-country suppliers, including Ecuador. Ecuador considered that the country-specific allocations for BFA countries violated Article XIII since no similar allocation was made for third countries in the "other" category despite that many of these countries had a substantial interest in exporting bananas to the EC, including Ecuador. Regulation 478/95, the regulation which implemented the BFA, also included, in Annex I, a country-specific allocation for non-traditional ACP sources which was not part of the BFA itself:
Other ACP countries
In the opinion of Ecuador, the EC had not satisfactorily explained why these suppliers were given country-specific allocations. In fact, the Commission had not provided a satisfactory explanation for how it calculated any of the country-specific allocations set out in the BFA and Regulation 478/95.
IV.124 The United States observed that the EC's allocation method had resulted in a substantial reduction of the combined shares of the largely Latin American suppliers that were not signatories to the BFA. During 1989-91, these non-BFA signatories supplied over 40 per cent of EC-12 imports; yet, on the basis of the EC's method of granting allocations, these non-BFA signatories were permitted, collectively, to supply the EC-12 with less than 34 per cent of total imports.
IV.125 Ecuador argued that the share allocated to third countries included in the "other" category was substantially lower than the share which these countries held prior to the imposition of the EC banana regime. The EC had failed, according to Ecuador, to provide a satisfactory explanation justifying the discriminatory treatment of third-country suppliers in the "other" category. The EC effectively reduced the market access of Latin American bananas even further when, on 1 January 1995, it adopted transitional measures permitting the importation of only 353,000 additional tonnes of bananas112 under the third-country tariff quota to take account of the accession of Austria, Finland and Sweden to the EC. The European Commission explained that the additional volume represented "the average net imports of these countries during the 1991-1993 reference period."113 However, Ecuador noted, Eurostat data indicated that these countries imported an average of 388,000 tonnes annually during this period, 99 per cent of which, was imported from Latin American countries. In fact, the volume of third-country banana imports into the three new member States in 1994 alone was 465,900 tonnes, or 32 per cent above the volume allowed under the transitional measures. The data thus once again demonstrated the arbitrariness of the tariff quota allocations, especially compared to the ACP allocations.
IV.126 The United States remarked that the EC did nothing to alleviate the discrimination in its allocation method when Austria, Finland and Sweden joined its customs union in 1995. The EC Council had not approved an increase in the tariff quota to account for Latin American access to these three countries. In 1995, the United States said, the EC Commission expanded the tariff quota by 353,000 tonnes under its discretionary authority to ensure an adequate market supply. The EC Commission was expected to make this same ad hoc expansion of the tariff quota in the fourth quarter of 1996 to accommodate consumption needs. Before 1995, the three new EC members imported almost all of their bananas from Latin American sources. By not approving a permanent increase in the tariff quota corresponding to imports by the new member States, the EC was in effect allocating shares for the EC-15 in the same proportions as for the EC-12. Since the new member States had purchased almost no bananas from ACP nations, this approach further skewed the allocation of the tariff quota away from being based on a representative period and highlighted the arbitrary nature of the overall allocation.
IV.127 Even assuming the EC were to approve an increase in the tariff quota to account for the three new member States, the United States considered that the market shares the EC awarded to countries would remain inequitable when compared to historical imports. The EC gave, as shown in the table below (provided by the United States), ACP countries access to 27.8 per cent of the EC-15 market, significantly more than their shares during either the 1989-91 period or the 1990-92 period. At the same time, the EC failed to provide access even close to the historical shares of countries which did not join the BFA.
EC-15 historical market shares for
groups of countries
compared to current allocations
Share of imports
Share of imports
Framework Agreement countries
Non-Framework Agreement countries
IV.128 Mexico argued that the reduction in access to the EC market had been maintained and increased due to the lack of a definitive increase in the EC's tariff quota to take account of the accessions of Austria, Finland and Sweden to the EC, as from 1995. In this case, despite the fact that imports originating in non-ACP countries to those markets amounted to 465,700 metric tonnes, the EC regime only authorized, on a transitional basis (during 1995), an amount of 353,000 metric tonnes. In 1996, there was no definitive increase to take into account the accession of the three new member States, and therefore the total amount of the EC tariff quota was still below what should be applied in accordance with the GATT.
Arguments of the EC
IV.129 The EC presented its main arguments concerning the claims of the Complaining parties on allocation issues under two main headings: (i) that the application of Article XIII of GATT was not legally correct if applied to the totality of the EC market which consisted of two separate regimes; and (ii) that the application of Article XIII was not appropriate given the nature of the tariff bindings for agricultural products such as bananas and the specificity of the Agreement on Agriculture with respect to those bindings. Details of these matters are set out below along with the arguments of the Complaining parties concerning them. The arguments concerning Article XIII issues that have not been covered elsewhere, for example those concerning a representative period for allocation, are then reported. The EC also reiterated its arguments concerning the Lom?waiver. In this light it noted that while Article XIII could not be applied to two separate regimes as set out above, the Complaining parties had raised issues concerning the allocations to ACP countries. This allocation was, in the EC view, also covered by the provisions of the Lom?waiver: arguments concerning this aspect of the Lom?waiver are set out at the end of the section on general allocation issues (see also paragraph 4.173 below).
IV.130 With respect to the allegations raised by the Complaining parties concerning allocation issues, the EC submitted that no confusion should be allowed to arise between the ACP traditional allocation and the tariff quota allocation bound under EC Schedule LXXX. Specifically, the EC noted that the external aspects of the COM for bananas consisted of two distinct regimes:
(a) the regime for traditional ACP bananas which must be treated in accordance with the Lom?Convention and must be given preferential treatment. This regime was now covered by the waiver from the obligations of the European Communities under paragraph 1 of Article I of GATT with respect to the Lom?Convention; and
(b) a bound rate of duty for banana imports in excess of a tariff quota and a tariff quota allocation for all other bananas. This was a normal tariff quota, as it existed for many agricultural products in many Members.
IV.131 The EC noted that the regime for ACP bananas involved the allocation of traditional quantities to ACP States. The quantities traditionally supplied (according to the "best ever" criterion up to and including the year 1990) by various ACP States, added up to 857,700 tonnes altogether, and entered the EC, as before, at zero duty (see Article 15(1) and the Annex of Regulation 404/93). The total of 857,700 tonnes was arrived at by adding up the individual allocations based on the best ever exports of the traditional ACP exporters to the Community. "Best ever" exports were interpreted broadly in the 12th preambular paragraph of Regulation 404/93. The EC recalled that in its meeting of 14-17 December 1992, the EC Agriculture Council decided that:
"The Lom?commitments will be met by allowing tariff-free imports from each ACP State up to a traditional level reflecting its highest sendings in any one year up to and including 1990. In cases where it can be shown that investment has already been committed to a programme of expanding production, a higher figure may be set for that ACP State."
It was clear that reasons of rational development policy inspired this decision to give a broad interpretation to the notion of "best ever" export performance; otherwise considerable investments, including in infrastructural works and therefore of benefit to the structure of a larger part of the economy than the banana sector alone, might have been redundant. Some of these investments in the banana industry and the infrastructure surrounding it were even carried out with substantial funding from the EDF and other development funds. Some of these investments, notably those relating to adaptation to new means of transport were necessary to maintain exports at a viable level.
IV.132 In particular when establishing the "best ever" performances of Jamaica, C魌e d'Ivoire, Cameroon and Belize such committed investments were taken into account. Obviously estimating "best ever" export performance by taking into account committed investments in banana plantations and banana related infrastructure was not an exact science, but the results were not excessive or unreasonable. C魌e d'Ivoire was a good example. It claimed its "best ever" export year was 1972 with 146,200 tonnes exported to the EC. The result of an inquiry into investments committed over 1989-1992 showed that more productive plant varieties were being used and that additional irrigation and drainage works were being planned which, it was claimed, would raise production to over 200,000 tonnes. In the end, an amount of 155,000 tonnes was put in the Annex to Regulation 404/93.
IV.133 The EC continued that Jamaica was a special case because it was reinvesting after extensive damage suffered from the hurricane Gilbert in 1988 and even from the 1980 hurricane Allen which, between them, had virtually destroyed banana production. One of the projects taken into account by the EC in this case was the complete reconstruction of the banana part of Port Antonio with the help of considerable EC funds. Many new plantings were also necessary. The EC stated that it was estimated that this would lead to exports of 105,000 tonnes in 1994 and this was the figure included in the Annex to Regulation 404/93. In the case of Cameroon, special attention was paid to the fact that banana production had dropped considerably during the 1980s and that in reaction thereto, the Cameroon Development Corporation, together with the World Bank, had undertaken important rehabilitation and development projects of three large plantations, which were intended to meet the needs of larger vessels and higher freight costs. The projects included drainage, irrigation, palletisation and packing stations. Estimated exports were over 200,000 tonnes as a consequence of these projects; a figure of 155,000 tonnes was adopted.
IV.134 Belize was highly dependent on agricultural exports, of which bananas formed an important part. The European Development Fund, the World Bank and the Commonwealth Development Corporation cooperated in a project that was comparable to that of Cameroon, aimed at adaptation to newer and bigger vessels, with resulting investment not only in the plantations themselves, but also in roads and a port. Estimated production as a result was 59,000 tonnes by 1994, rising to a yearly average of 100,000 tonnes by 1996; the amount accepted as "traditional exports" was 40,000 tonnes, the EC submitted.
IV.135 The EC went on to show to the Panel that separate import licensing regimes were also applied to tradition ACP bananas - this aspect is taken up more fully in section IV.B.2(c), below.
IV.136 With respect to other banana imports, the EC noted that it had originally set a tariff quota for bananas at 2 million tonnes on a yearly basis and no specific shares for the various exporting countries were foreseen. The amount of 2 million tonnes was based on the average yearly imports during the period 1989-1991, the last three years for which according to the EC complete statistics had been available. The EC provided the following data:
Imports of Latin American and non-traditional ACP bananas
The EC went on to note that the table was of little further relevance, however, as the total amount of the tariff quota had been consolidated in the Uruguay Round.
IV.137 The Uruguay Round, concluded in Marrakesh on 15 April 1994, resulted in the consolidation of which was now part of the Schedule of the EC. It applied to fresh bananas, other than plantains, which appeared in tariff item number 0803.00.12. The EC MFN bound rate of duty for bananas was set out in Part I - Most-Favoured-Nation tariff, Section I - Agricultural Products, Section I-A Tariffs. The initial bound rate was ECU 850 per tonne, with a final rate for 2000 of ECU 680 per tonne, implemented in six equal annual reduction instalments. The rate for 1996 was ECU 793 per tonne. In addition, the EC included the following market access commitment in Part I Most-Favoured-Nation tariff, Section I - Agricultural Products, Section I-B Tariff quotas: initial and final tariff quota quantity (2,200,000 tonnes) and an in-quota tariff rate (ECU 75 per tonne) subject to the terms and conditions indicated in the Annex to that part of the schedule.
IV.138 The Annex specified the market access commitments made under the Agreement of Agriculture and included the allocation of the tariff quota between the parties having a substantial interest in supplying the product concerned. The total was thus allocated, according to the Schedule, among various banana producing countries. The allocation reflects the shares in quantities of bananas imported in the EC as determined on the basis of the most recent statistical data available at the time of the negotiation, concerning the latest three years' representative of normal trade flows of importation of bananas into the EC. The Annex included the results of the conclusion of the BFA which implemented the same rules.
IV.139 The EC went on to observe that, as it appeared clearly from the EC Schedule LXXX, non-traditional ACP bananas were allocated a consolidated share of the tariff quota up to 90,000 tonnes. However, non-traditional ACP bananas benefited from a preferential treatment which was covered, just as the ACP traditional allocation, by the Lom?waiver consisting of duty-free importation for the quantities indicated in the tariff quota. Moreover, the non-traditional ACP bananas benefited from preferential treatment of ECU 100 per tonne from the bound rate for non-tariff quota imports. This preferential treatment was equally covered by the Lom?waiver, as explained elsewhere.
IV.140 Ecuador recalled that the EC had allocated 857,700 tonnes of the import market among twelve traditional ACP countries. The EC had stated that this allocation was based on the "best ever" import levels for each of these suppliers up to and including 1990. However, in virtually every case, the amounts allocated to the traditional ACP countries exceeded those countries' "best ever" import levels. In fact, the data indicated that there was no historical or commercial basis whatsoever to justify the allocation of the market given to traditional ACP suppliers. Ecuador considered that the "best ever" import levels for each of the traditional ACP countries given a country-specific allocation were far below the shares of the tariff quota allocated to each of these countries under Regulation 404/93. In the aggregate, the traditional ACP volume was 25 per cent higher than the "best ever" import volumes for traditional ACP countries up to and including 1990.
IV.141 The disparity between the traditional ACP countries' historical imports and their share of the total EC import market was even more acute, according to Ecuador, if one focused on these countries' trade levels in the few years immediately before the signing of the Lom?Convention. According to Eurostat statistics, ACP banana exports to the EC averaged roughly 471,200 tonnes from 1986 to 1989, or 17.6 per cent of the EC's total imports. However, Regulation 404/93 guaranteed duty-free treatment for traditional ACP bananas for almost twice this amount. The disparity between the ACP countries' "best ever" import levels and the shares of the EC import market which they had been allocated under the EC's current banana regime was exacerbated even further by the fact that part of the third-country tariff quota was allocated to non-traditional ACP sources, i.e. bananas from traditional ACP suppliers imported above the traditional ACP tariff quota levels or bananas originating in non-traditional ACP countries. In 1995, the EC allocated 90,000 tonnes of the third-country tariff quota to non-traditional ACP sources.114 With this supplemental ACP share, ACP countries were allocated 947,700 tonnes.
IV.142 The United States noted that when allocating shares to ACP countries, the EC claimed to have used the "best ever" shipments up to 1990, presumably beginning this exercise after the first Lom?Convention was signed in 1975. This approach was, in the view of the United States, inconsistent with Article XIII. It inherently discriminated against other Members, since by definition using "best ever" meant that the shares of any other country would be reduced below its historical percentage. Moreover, the EC allocations had exceeded even the "best ever" figures for several countries. For example, Cameroon's actual "best ever" shipment was 79,596 tonnes, but the EC gave it an allocation of 162,500 tonnes. Furthermore, the EC's method of allocating shares was even more discriminatory than if it had used the actual "best ever" data for each ACP country and a 1989-91 representative period for Latin America. Using such a "combined" method, the C魌e d'Ivoire would have received an allocation of the EC-12 market of 3.96 per cent, instead of the actual 5.31 per cent. Since the very premise of using a 1989-91 base period was, in the opinion of the United States, already flawed, the inequity for most Latin American banana-producing countries was all the more striking.
IV.143 Mexico argued that the EC regime granted ACP countries access above the access that they should have received if the EC had applied the same reference period that it imposed on the remaining contracting parties, instead of computing its allocations on the basis of the exports made by ACP countries in the best year available. This situation could have been compatible with the obligations of the EC in light of the waiver of 9 December 1994, if the increase/advantage in favour of ACP countries had been provided in addition to the tariff quota for non-ACP countries. However, as the EC preferred to take part of the tariff quota of non-ACP countries and give it to the ACP countries, this situation resulted in a violation of Article XIII because it was no longer a case of an advantage (giving more to ACP) but of discrimination against non-ACP countries (taking away from non-ACP and giving to ACP).
IV.144 The Complaining parties referred to the EC's main contention with respect to the allocation of its market that it had created discrete, legally separate regimes for ACP countries, BFA signatories and non-BFA signatories. They submitted that the notion of a distinct traditional ACP "regime" independent of the tariff quota was contradicted by the language of Regulation 404/93 and by the EC's many references to a single "banana regime." The EC's internal decision to treat products of these countries differently did not relieve the EC of its international obligations to apportion access to its market in accordance with Article XIII. However, even if the EC considered that it had created several regimes, nothing in Article XIII's rules on country allocations limited its application to "one specific quota or tariff quota" without regard to how other imports were treated. Article XIII:2(d) applied to the allocation of shares of a market. To the extent a Member created different types of restrictions, the Member had acted inconsistently with Article XIII:1 which required that imports from all sources be similarly restricted. To permit Members to circumvent the central GATT obligation of non-discrimination by allocating country shares under separate discriminatory "regimes" according to source would eviscerate Article XIII. The EC attempt to distinguish the Dessert Apples report on the basis that the report was only "confronted with one system", as opposed to the two arrangements at issue here was not appropriate as the panel in that case found that because "like products of all third countries had not been similarly prohibited" in the administration of import licences, the EC had acted inconsistently with its Article XIII obligations.115 The EC's claim that separate quota allocation schemes (one preferential system and another system notified in the schedules) routinely existed among Members only underscored the danger of this approach. The Complaining parties were unaware of any other Members that allocated their markets in the manner described by the EC. If the EC was routinely engaging in such practices, it was, according to the Complaining parties, routinely violating Article XIII.
IV.145 The Complaining parties argued that even using the so-called "best ever" shipments by ACP countries discriminated against other Members. By definition, "best ever" for one or more countries meant that the shares of other Members would be reduced below their historical, representative percentages. According to the Complaining parties, the EC had admitted that it also went beyond even the "best ever" shipments of some ACP countries to take into account "investments" being contemplated. These allocations exceeded, in their view, any access opportunities provided by EC member States in previous years, which, in the case of France and the United Kingdom, were defined not on the basis of pending investments or individual historical shipments, but on annual consumption needs in those countries.
IV.146 As to the concern that EC investments would have been wasted if the allocations had not been overstated, the same could just as easily be said of the national banana investments under way or planned in the Latin American supplying countries. Moreover, the World Bank and other economists had pointed out that relative to "waste" that might derive from uncounted ACP investments, an EC funding waste of immensely greater magnitude had resulted from this EC regime, which had cost consumers $13.25 to transfer only $1.00 of benefit to ACP banana suppliers.116 More to the point, other Members should not have to pay for the EC's budget mistakes.
IV.147 The EC reiterated that there should be no confusion as to the totally separate nature of the two banana regimes of the Community: the ACP traditional allocation; and the EC regime for all other bananas. This reality was a direct result of both the Uruguay Round negotiations and of the existence of the Lom?Convention(s): any suggestion that this was designed in order to avoid a comparison of treatment under Article XIII was, in the view of the EC, a legal and factual nonsense. The EC submitted that the allocation of the EC tariff quota and the access to the EC market were not at all the same thing. The EC undertook at the end of the Uruguay Round to allow the importation of bananas into its customs territory under the conditions contained in its Schedule LXXX. Those bound commitments were: (i) unrestricted access to the EC market under a duty rate for 1996 of ECU 793 per tonne and with a final rate of ECU 680 per tonne in the year 2000; (ii) a tariff quota of 2,200,000 tonnes subject to a duty rate of ECU 75 per tonne and the conditions and terms indicated in the Annex to the Schedule. In this specific context, the only sensible meaning of the word "allocation" (and the only appropriate legal use of that concept), according to the EC, was to refer to the internal distribution of the tariff quota. It was the limited possibility of benefiting from the ECU 75 per tonne rate - that is the normal and accepted consequence of any tariff quota - that imposed a sharing out of the tariff quota in accordance with the relevant provisions of the GATT and, subject to the resolution of the legal issue concerning the prevailing application of the Agreement on Agriculture to the agricultural section of the schedules, eventually of Article XIII:5 of GATT. Allocation was therefore not synonymous with market access. In the view of the EC, this legal evidence had enormous consequences on the arguments presented by the Complaining parties.
IV.148 Firstly, the EC considered that they could not claim that after the Uruguay Round there was a restriction of access to the EC banana market: the only thing the EC had done was to articulate its tariff concessions in two sections without restrictions of any kind on volumes of importation. Any allocation was therefore relevant only with respect to a special tariff rate and not to a volume. The size of the tariff quota, i.e. the actual extent of the concession made and bound by the EC at the end of the Uruguay Round had been accepted by ratification by all Members and was not and could not be under review in a Dispute Settlement procedure. Secondly, the EC argued, irrespective of the outcome of the legal analysis of the issue concerning the Agreement on Agriculture, the Complaining parties could not claim that Article XIII was applicable to totally separate regimes like the traditional ACP and the MFN regime under the WTO. Article XIII was in the view of the EC only applicable to tariff quotas by virtue of Article XIII:5 which extended the "provisions of this Article ... to any tariff quota instituted or maintained by any contracting party". It was only when allocating the tariff quota that the Complaining parties might be justified to request the application of Article XIII, if appropriate, and in particular of Article XIII:2. This had nothing to do with the separate allocation of a preferential regime, like the traditional ACP, which was governed by its own rules and procedures. The EC further argued that confusing allocation and access led to the paradoxical suggestion that Article XIII:2(d) applied to "the allocation of shares of a market". According to the EC, the Complaining parties view would inevitably entail the merging of the EC tariff quota and the traditional ACP allocations which should be analyzed under that provision as one regime and not as two separate ones. The EC considered this to be legally wrong: if Article XIII was to be applied obligatorily to shares of a market, and not to share of one quota or of one tariff quota, the consequence would be that the entire access of bananas to the EC market would be distributed in accordance with Article XIII -inside and outside of the tariff quota - even if that market was not restricted in any way. The EC considered that the correct conclusion was the opposite: Article XIII:5 indicated that in this particular context the provisions concerning allocations might be relevant with respect to the EC tariff quota. On a completely separate ground, other provisions, not contained in the EC commitments under the GATT, governed the preferential treatment of the ACP traditional allocation.
GATT schedules and Articles I and XIII in the context of the Agreement on Agriculture
IV.149 The EC noted that bananas were an agricultural product and hence the tariff and tariff quota on bananas were consolidations under the Agreement on Agriculture. Even though the old consolidated tariff of the EC for bananas was deconsolidated and negotiations begun under Article XXVIII of GATT with the countries which were (then) countries with initial negotiating rights or with a principal supplying interest, in the end the tariff and tariff quota were consolidated in the framework of the Uruguay Round. Further, as well known to all Members, the consolidation and scheduling of concessions and commitments in the agricultural sector followed its own dynamic and its own rules during the Uruguay Round and led, for instance, to the widespread recourse to tariff quotas in tariff scheduling. Many of these tariff quotas, were country-specific, i.e. they listed a limited number of countries to which they applied and for which certain quantifies were reserved, while what was left of the tariff quota was allocated to "others".
IV.150 The specificity of the agricultural market access concessions was implicitly recognized in Article 4 of the Agreement on Agriculture, the EC submitted, where the existence of market access concessions in this economic sector was specifically recorded and a special reference was made in paragraph 1 to "Schedules relating to bindings and reductions of tariffs ... as specified therein". This gave these schedules a particular status which was all the more important when Article 21 of the Agreement on Agriculture was drawn into the analysis: "The provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex IA to the WTO Agreement shall apply subject to the provisions of this Agreement". This Article confirmed the "agricultural specificity" in its clearest form and demonstrated that the rules of the Agreement on Agriculture, including the schedules specifically referred to in Article 4, superseded, if necessary, the provisions of GATT and the other agreements in Annex IA of the WTO Agreement. The EC submitted that Members negotiated their commitments on bananas during the Round in the framework of this agreed "agricultural specificity" and, therefore, no violation of Article XIII of GATT could be claimed with respect to the EC banana regime consolidated in the GATT.
IV.151 Moreover, the EC noted that the general most-favoured-nation treatment principle as expressed in Article I of GATT was part of Part I of the GATT and read as follows:
"With respect to customs duties and charges of any kind imposed on or in connection with importation or exportation or imposed on the international transfer of payments for imports or exports, and with respect to the method of levying such duties and charges, and with respect to all rules and formalities in connection with importation and exportation, and with respect to all matters referred to in paragraphs 2 and 4 of Article III, *any advantage, favour, privilege or immunity granted by any contracting party to any product originating in or destined for any other country shall be accorded immediately and unconditionally to the like product originating in or destined for the territories of all other contracting parties" (emphasis added).
In addition Article II:1(a) and (b) read:
"(a) Each contracting party shall accord to the commerce of the other contracting parties treatment no less favourable than that provided for in the appropriate Part of the appropriate Schedule annexed to this Agreement.
(b) The products described in Part I of the Schedule relating to any contracting party, which are the products of territories of other contracting parties, shall, on their importation into the territory to which the Schedule relates, and subject to the terms, conditions or qualifications set forth in that Schedule, be exempt from ordinary customs duties in excess of those set forth and provided therein. Such products shall also be exempt from all other duties or charges of any kind imposed on or in connection with the importation in excess of those imposed on the date of this Agreement or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing territory on that date."
Furthermore, Article II:7 clarified that "the schedules annexed to this Agreement are hereby made an integral part of Part I of this Agreement".
IV.152 As Article II:7 clearly indicated, the EC banana concession was an integral part of Part I of GATT and was, therefore, to be considered integral part of Article I and Article II as appropriate. The EC submitted that this entailed the consequence that any application of the MFN principle set out in Article I could not prevail per se on the terms and conditions of the concession, in the present case the EC banana concession, since this would mean giving priority to one part of Article I on top of other parts of the same Article, as supplemented by the concessions. There was no evidence in the GATT that the CONTRACTING PARTIES were not aware of the effects of Article II:7. On the contrary, numerous indications supported this interpretation and excluded that it could be considered as unwanted or unwished by the CONTRACTING PARTIES (a sort of "lapsus calami").
IV.153 The EC submitted that the CONTRACTING PARTIES to the GATT 1947 explicitly recognized that concessions were made part of Part I of the Agreement. This was acknowledgement of the fact that concessions were the result of multilateral negotiations after a sometimes long and difficult give-and-take process. The parties then solemnly accepted, by explicit and binding agreement duly reflected by the internal ratification or approval procedures, the content of the schedules mutually exchanged but only if and when they considered that, as a whole, the give-and-take process was satisfactory or, at least, acceptable for them. Without prejudice to what had been argued with respect of agricultural products' commitments under the Uruguay Round, the other parts of the GATT were to be applied taking into account at the same time two elements: the content of the concessions and the MFN principle, as supplemented by the concessions.
IV.154 In the specific case of the EC banana concession, the EC continued, the CONTRACTING PARTIES agreed for the first time at the end of the Uruguay Round to the EC new banana regime based on the establishment of the tariff quota after the deconsolidation of the old and obsolete 20 per cent ad valorem bound rate and the creation of the EC-wide internal banana market. All the parties agreed explicitly, knowingly and deliberately to this new concession: nothing could justify now any of the Members reopening surreptitiously the negotiations by contesting within the present Panel procedure the internal balance of the negotiation that had just ended, violating the fundamental principle "pacta servanda sunt" as expressed in the Vienna Convention on the law of Treaties and customary international law.
IV.155 Furthermore, the panel procedure Canada/Japan - Import of Spruce, Pine, Fir (SPF) Dimension Lumber (adopted on 19 July 1989), examined Canada's claim that Japan's application of an 8 per cent tariff on SPF dimension lumber was inconsistent with Article I:1 because SPF dimension lumber and dimension lumber of other types, which benefited from a zero duty rate, were like products within the meaning of Article I:1. The panel found that:
"... a tariff classification going beyond the harmonized system's structure is a legitimate means of adapting the tariff scheme to each contracting party's trade policy interests, comprising both its protection needs and its requirements for the purposes of tariff and trade negotiations... The Panel considered that the tariffs referred to in the General Agreement are quite evidently, those of the individual contracting parties. It followed that if a claim of likeness was raised by a contracting party in relation to the tariff treatment of the goods on importation by some other contracting parties, such claim should be based on the classification of the latter, i.e. the importing country's tariff."117
Evidently, the panel and the GATT Council which adopted the report retained the interpretation that Article I of GATT was to be read together with the individual concessions for the relevant product contained in the schedules that were an integral part of Part I of GATT. This interpretation was, therefore, totally consistent with the wording and the purpose of Article II:7 of GATT.
IV.156 In concluding on these issues, the EC argued that the provisions of Article I of GATT could not be considered applicable as such to the actual content of the EC banana tariff quota without taking into account the results of the Uruguay Round negotiations.
IV.157 The Complaining parties rejected the EC claim that its banana regime enjoyed immunity from general WTO obligations, including GATT Article I and Article XIII, to the extent that its regime was reflected in its Schedule's market access concessions, which were generally referenced in the Agriculture Agreement. The Complaining parties noted that only a few elements of the EC banana regime were specified in the EC Schedule and provided the following table:
EC Uruguay Round Schedule relating to bananas
ECU 75 and ECU 850 per tonne tariffs
"Non-traditional" ACP tariffs (0 and ECU 750 per tonne)
2,200,000 tonnes tariff quota access
"Traditional" ACP allocations
BFA, including country allocations for BFA signatories and 90,000 tonnes set aside for
non-traditional ACP supplies
"Non-traditional" ACP country-specific allocations laid down in Regulation 478/95
Licensing arrangements for all foreign sources, including incentives to purchase EC bananas
Thus, this EC "defence" was irrelevant to all legal claims regarding discrimination against Latin American bananas in favour of ACP (and EC) bananas, and irrelevant to the legal analysis of import licensing procedures for bananas.
IV.158 The Complaining parties submitted that the EC's claim that its country allocations were immunized because of a supposed conflict with the Agreement on Agriculture was unsubstantiated. In the Complaining parties' opinion, no provision of the Agreement on Agriculture pertained to non-discriminatory administration of quantitative limitations. Article 4 of the Agreement on Agriculture, the only provision that even related to market access concessions at all, simply reminded Members that "[m]arket access concessions contained in schedules relate to bindings and reductions of tariffs, and to other market access commitments as specified therein." According to the Complaining parties, no provision in the Agreement on Agriculture conflicted with the EC's obligations to allocate market access in accordance with Article XIII of GATT. The Agreement on Agriculture did not address the allocation of tariff quotas and was never intended to re-write long-standing GATT rules on how such allocations had to be made or to allow members to deviate in their schedules from fundamental GATT principles such as the non-discrimination principle underlying Article XIII. If the Panel were to accept such a result, it would fundamentally undermine the Agreement on Agriculture and the WTO itself. The purpose, as stated in the preamble, of the Agreement on Agriculture was to create, "strengthened and more operationally effective GATT rules and disciplines," rather than to weaken the protection against discriminatory allocations of the tariff quotas. As a practical matter, those countries among Members which had allocated their markets as part of the Uruguay Round considered themselves bound by Article XIII. It would be highly inequitable if the Panel were to allow the EC to escape these same disciplines.
IV.159 The Complaining parties argued that the EC assertion concerning agricultural specificity was irrelevant to the analysis of whether the EC had violated Article XIII with respect to its ACP allocations, since the EC's Schedule did not reflect country-specific allocations for either traditional or non-traditional ACP bananas. Moreover, this argument was without basis in the texts of the WTO agreements. Not only was there no provision of the Agreement on Agriculture that conflicted with the EC's obligations under Article XIII, it was also well established that the market access concessions in the schedules could not diminish Members' obligations under GATT and other WTO agreements. Referring to paragraph 1 of the Marrakesh Protocol, the Complaining parties agreed that in turn, Article II:7 of GATT provided: "The Schedules annexed to this Agreement are hereby made an integral part of Part I of this Agreement." Thus, all market access concessions in agriculture were considered an integral part of the GATT, and not of the Agreement on Agriculture, and therefore they could not present a conflict between the Agreement on Agriculture and any other agreement. Article 4.1 of the Agreement on Agriculture was nothing more than a cross reference to market access concessions - a reminder to Members that the result of the third element of the agriculture negotiations was largely contained elsewhere. In contrast, Article 21.2 made the Annexes to the Agriculture Agreement "an integral part of this Agreement." Had the drafters intended to make the schedules an integral part of the Agreement on Agriculture, they could have done so.
IV.160 The Complaining parties noted that Article 21.1 of the Agriculture Agreement stated that "the provisions of GATT 1994 and of other Multilateral Trade Agreements in Annex 1A to the WTO Agreement shall apply subject to the provisions of this Agreement." This statement, inserted in tandem with Article 13 of the Agreement on Agriculture, was intended to ensure that Article 13 would supersede the separate disciplines of the Agreement on Subsidies and Countervailing Measures. The EC argument that this Article exempted any aspects of its banana regime mentioned in its Schedule from GATT and other WTO obligations was unsupported by the text. Since the market access concessions in the schedules did not constitute a "provision" of the Agreement on Agriculture, and no other provision in that Agreement pertained to allocation of market shares or any of the other aspects of the regime that were inconsistent with the GATT, Article 21.1 provided no defence to the EC's violations of the GATT or any other WTO agreement.
IV.161 The EC reiterated that the provision of Article I of GATT could not be considered applicable as such to the actual content of the EC banana tariff quota without taking into account the results of the Uruguay Round negotiations. Members had negotiated their commitments on bananas during that Round in the framework of the agreed "agricultural specificity", and therefore no violation of Article XIII of GATT could be claimed with respect to the EC banana regime consolidated in the GATT. As for the separate preferential regime with regard to traditional Lom?suppliers, the EC had never claimed that the Agreement on Agriculture applied to it, since it was not included in the agricultural section of its Schedule. It was a wholly separate regime which originated in a preferential agreement covered by a waiver granted by the GATT contracting parties.
IV.162 In reply to a question by the Panel, the EC noted that according to the Marrakesh Protocol, the schedules as such were incorporated into the GATT and not directly to the Agreement on Agriculture. Nevertheless, this formal element was not, in the EC's opinion, at all decisive while addressing the issue concerning the specificity of agricultural market access concessions and the priority of the rules of the Agreement on Agriculture, including the schedules referred to in Article 4, on the provisions of the GATT and the other Agreements of Annex 1A. The EC argued on both formal, i.e. based on the letter of the WTO texts, and substantive, i.e. based on the will of the contracting parties and the logic of the whole Uruguay Round negotiating process, grounds. From the formal point of view, paragraph 1 of the Marrakesh Protocol stated that "the schedule annexed to this Protocol relating to a Member shall become a schedule to GATT 1994 relating to that Member ...". The Marrakesh Protocol in itself was part of the GATT (GATT 1994, paragraph 1(d)). That being said, Article 1(g) of the Agreement on Agriculture defined, according to the EC, market access concessions as "all market access commitments undertaken pursuant to this Agreement". "All" commitments included, according to the EC, commitments other than bindings and the reduction of tariffs (as made clear in Article 4.1 of the Agreement on Agriculture) - including market access allocations. Article 4.1 of the Agreement on Agriculture further specified the notion of market access concessions, clarifying that "market access concessions contained in schedules relate to bindings and reduction of tariffs, and to other market access commitments as specified therein". Therefore the concept of "commitments undertaken pursuant to this Agreement", under Article 1(g) of the Agreement on Agriculture was, the EC argued, further specified by two elements present in Article 4.1 of the Agreement on Agriculture, i.e."contained in the schedules" and "specified therein" and it could consist of "bindings", "reduction of tariffs" and "other market access commitments as specified therein" (i.e. allocations).
IV.163 The EC thus submitted, on the basis of Article 4.1 and Article 1(g), it could be affirmed that market access commitments (including allocations) contained in Part I, Section I - Agriculture tariff schedules were commitments undertaken pursuant to the Agreement on Agriculture. Therefore the provisions of the Agreement on Agriculture applied to them. According to Article 21, provisions of the GATT applied subject to the Agreement on Agriculture provisions. In conclusion, the question to be asked was not whether the schedules were "incorporated" into the Agreement on Agriculture, but rather whether the provisions of the Agreement on Agriculture applied to them. In the opinion of the EC, the Agreement on Agriculture provisions did indeed apply to Part I, Section I of the schedules. More specifically, the relevant provision was Article 4.1, read in conjunction with Article 1(g): market access commitments undertaken pursuant to the Agreement were those contained in the schedule. This provision thus prevailed on the GATT. Moreover, paragraph 3 of the Marrakesh Protocol indicated clearly that the implementation of the concessions and commitments contained in the schedules "... would be without prejudice to the rights and obligations of Members under Agreements in Annex 1A of the WTO Agreement". When raising the issue of the applicability of Article XIII or of other provisions under any Agreement in Annex 1A to the provisions contained in the agricultural schedules, the Complaining parties were, according to the EC, referring themselves to the administration of those concessions (heading of Article XIII of GATT itself). The same Protocol, however, clarified that any right accruing under those concessions was subject, in the implementation of the concession, to the provisions of the Agreements in Annex 1A. In the case of the Agreement on Agriculture, therefore, while implementing those concessions, the rights of the parties were limited to "bindings and reduction of tariffs and to the other market access commitments as specified therein" (Article 4.1 of the Agreement on Agriculture) and not more. And no other GATT provision was applicable (Article 21.1 of the Agreement on Agriculture).
IV.164 The EC considered that the actual drafting of the Agreement on Agriculture was also justified by a number of substantive reasons. Market access concessions were the subject of Article 4 of the Agreement on Agriculture. This Article stated the obvious, according to the EC, namely that these concessions were contained in schedules, that they related to bindings and reductions of tariffs and to other market access commitments as specified, and that Members would not revert to the practices which they converted into tariffs during the Uruguay Round agricultural tariffication exercise. As the Article stated the obvious, the only function of the Article could be to create a special link between the agricultural schedules, which had been included with the other schedules into the Marrakesh Protocol to the GATT and the Agreement on Agriculture. Through this special link, the agricultural schedules profited from the agricultural specificity as laid down in Article 21 of the Agreement on Agriculture. It would be absurd to restrict the scope of Article 21 only to the provisions of the Agreement on Agriculture and not extend it to the results of agricultural tariffication, and of the results of the negotiations on commitments on export subsidization and internal support. The methods of this negotiation, the resulting rules and finally the concessions made and commitments taken were none of them fully orthodox under the rules of the GATT, the Agreement on Subsidies and Countervailing Measures or the Agreement on Safeguards, but they constituted a sufficient protection of an exceptional regime for agriculture for some and a sufficient step in the direction of ultimate coverage of agriculture by the general rules of GATT, to be acceptable to all.118 On the other hand, it was generally recognized that so-called agricultural specificity under Article 21 was necessary in order to give legal protection to this step in the right direction. One part of the overall result, i.e. the result of the tariffication exercise, could not now be excluded from this agricultural specificity without unbalancing the overall result of the negotiations. The widespread use of tariff quotas which were allocated according to the same method as that used by the EC (i.e. some country-specific allocations and an "other" category) in the case of bananas, was a clear indication that this practice was considered acceptable under the Agreement on Agriculture.
IV.165 For the above-mentioned reasons, the EC was of the view that Article 21 of the Agreement on Agriculture implied that schedules on market concessions might contain commitments which were inconsistent with the obligations of the GATT and other Agreements of Annex 1A. The EC stressed that paragraph 1 of the Marrakesh Protocol indicated that "the schedule annexed to this protocol relating to a Member shall become a schedule to GATT 1994 relating to that Member on the day on which the WTO Agreement enters into force for that Member". The EC considered thus that terms, conditions and qualifications contained in market access concessions enjoyed complete immunity from legal challenge on the basis of any of the agreements listed in Annex 1A.
IV.166 The EC referred to the Complaining parties claim that Article 21 of the Agreement on Agriculture shall prevail with regard to provisions of GATT and of the other Agreements under Annex 1A and was only connected to Article 13 of the Agreement in order to ensure that the provisions of that Article would prevail on the Agreement on Subsidies. The EC responded that it was sufficient to look at the text of the Agreement to contradict such an interpretation. There was no indication in the text of the Agreement that Article 21 was limited in scope. On the contrary, the reader was immediately struck by the general coverage of Article 21, as compared to Article 13 itself, which specifically set out its prevalence with respect to the Subsidies Agreement. The text of the Agreement supported no other conclusion but the one that Article 21 concerned all provisions of the Agreement on Agriculture. Furthermore, referring to the Complaining parties' affirmation that schedules were not provisions of the Agreement on Agriculture and that therefore Article 21 provided no defence for the EC's violations, the EC maintained that this was not what Article 21 said. Article 21 stated that the provisions of the GATT shall apply subject to the provisions of the Agreement on Agriculture. Article 21 did not require schedules to be provisions of the Agreement: it regulated prevalence of application of such provisions. The EC was of the view that the provisions of the Agreement on Agriculture applied to the market access commitments of the agricultural schedule of the EC, and prevailed on GATT.
IV.167 The Complaining parties maintained that the EC had simply disregarded the texts of the Agriculture Agreement in arguing that the incorporation of certain country-specific allocations in its Uruguay Round Schedule somehow relieved it from its Article XIII obligations. In their view, although the EC had now admitted that the schedules were not incorporated in the Agriculture Agreement, it had dismissed the legal effect of this point by characterizing the text as a mere "formality."
IV.168 Furthermore, the Complaining parties rejected the EC claims that Article XIII requirements did not apply to its market allocations and specifically that no challenge could be brought because the allocations for Colombia, Costa Rica, Nicaragua and Venezuela were located in the EC's Uruguay Round Schedule: while the Complaining parties understood that the EC had provided tariff bindings protected by Article II of GATT to four countries, these bindings, in their view, did not relieve the EC of its obligations under Article XIII or any other WTO disciplines. As concerns the EC's Article II:7 argument generally, the Complaining parties referred to the Sugar Headnote case119 which was presented with the claim, in relation to a provision in the United States Schedule XX, that Article II:1(b) permitted a country to place conditions in its schedule that would override other obligations of the GATT. The Sugar Headnote panel rejected this claim after analysing the wording, purpose and drafting history of Article II and GATT practice. With respect to the wording, the panel considered that Article II:1(b) might permit parties to qualify the obligation to exempt products from customs duties in excess of the levels specified in the schedule, but not to qualify their obligations under other Articles of the GATT. The panel also noted that the title of Article II was "Schedule of Concessions" and that the ordinary meaning of "to concede" was "to grant, yield," which further suggested that Article II permitted countries to incorporate into their schedules acts yielding rights under the GATT, but not acts diminishing their obligations. The panel then confirmed this interpretation in light of the preamble to the GATT, which noted that the Agreement consisted of "mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade", language that was repeated in the preamble to the WTO Agreement. The panel observed that where the GATT referred to specific types of negotiations, it referred to negotiations aimed at the reduction of barriers to trade (Articles IV(d), XVII:3 and XXVIII bis), which further supported the assumption that:
"Article II gives contracting parties the possibility to incorporate into the legal framework of the General Agreement commitments additional to those already contained in the General Agreement and to qualify such additional commitments, not however to reduce their commitments under other provisions of that Agreement."
The panel further considered that other parts of the GATT, notably Article XVII:3, supported the interpretation that GATT obligations could not be diminished through a negotiation and that past practice showed that contracting parties "did not envisage that qualifications in schedules established in accordance with Article II:1(b) could justify measures inconsistent with the other Articles of the General Agreement." Finally, the panel noted that the drafting history of Article II did not support a contrary interpretation.120 In the opinion of the Complaining parties, the reasoning and conclusions of the Sugar Headnote panel were no less valid with respect to the EC's Uruguay Round Schedule. Arguments that this interpretation would destabilize the market access concessions agreed to in the Round were an exaggeration. The Uruguay Round market access negotiations, particularly those concerning agricultural trade, were concluded with the full knowledge of this report.
IV.169 Referring to the Complaining parties reference to the Sugar Headnote panel, and notwithstanding the EC's conviction that no violation of GATT had been demonstrated with regard to the EC concession on bananas, the EC underlined that the panel predated the entry into force of the WTO and of the Multilateral Agreements on Trade in Goods as set out in Annex 1A of that Agreement. The EC considered that in light of the general interpretative note to Annex 1A,121 the relationship between GATT and the agreements on trade in goods, and more specifically in light of Article 21 of the Agreement on Agriculture which reinforced, in a way, such a rule with respect to the Agreement on Agriculture, the Sugar Headnote ruling had to be reviewed to take account of the prevalence of the provisions of the other Agreements on GATT 1994. It could not in any case be transposed as such into the present case.
Parties' arguments - interpretive issues
IV.170 Specifically with respect to the Complaining parties claims concerning an alleged violation of Article XIII concerning the structure of the tariff quota, the EC recalled its remarks in which it clearly indicated that the tariff and tariff quota consolidations on bananas were current access consolidations under the Agreement on Agriculture. The consequence of that analysis was that Article 21 of the Agreement on Agriculture confirmed the "agricultural specificity" in its clearest form and demonstrated that the rules of the Agreement on Agriculture, including the schedules specifically referred to in Article 4, superseded, if necessary, the provisions of the GATT and the other Agreements of Annex IA. Therefore, the EC continued, provisions of Article XIII of GATT, in particular, could not be considered applicable to the actual content of the tariff quota and the EC was of the opinion that no violation of this Article could be claimed with respect to the EC banana regime consolidated after the Uruguay Round.
IV.171 It was therefore solely on the subsidiary basis that the EC would examine the claims presented by the Complaining parties about the alleged violation of Article XIII by the structure of the bound tariff quota. In this narrow and specific context, the EC argued that a preliminary distinction had to be made between two series of allegations: (i) no claim of discrimination (and consequent violation of Article XIII) could be raised against the country allocation within the MFN tariff quota as compared to the allocation within the ACP traditional quota. The EC had already demonstrated that Article XIII related only to the non-discrimination in the administration of a quota or a tariff quota. Therefore Article XIII was relevant and applicable only in so far one specific quota or tariff quota was considered, and specifically its administration. No argument could on the contrary be made under Article XIII, in particular Article XIII:1, alleging discrimination in the administration of two different regimes, which are independent one from the other and each legally justified on a different basis; and (ii) no violation of Article XIII, and in particular paragraph 2, had occurred in the structuring of the EC MFN tariff quota.
IV.172 As a practical matter, the EC, by means of a graph showing supply trends and, in particular, the increase in third-country imports into the EC after the fall of the Berlin Wall in 1989, argued that: in every year since the start of the regime, quantities significantly above the bound tariff quota had been imported from "others" alone, not counting any non-traditional ACP volumes; the level of the bound quota was significantly above any volumes which came into the EC-15 up until 1990; and the dramatic effect on banana imports of the fall of the Berlin Wall and the subsequent reunification of Germany. In this light, the EC continued, volumes rose sharply from the end of 1989 through 1990 and into 1991 (when the effects of speculation also began to push up volumes temporarily) as the market and distribution systems developed. The increase was the result of 16 million additional consumers being added to the EC, and was not due to any increase in individual propensity to consume bananas - it was a one-off increase and not evidence of a trend to increased consumption.
IV.173 The EC continued that the graph showed that the policy had not led to dramatic increases in supply from either domestic sources or ACP countries, thus refuted the arguments that the EC banana policy represented such advantages for EC and ACP producers that these would become the preferred sources of supply and that traders would rush to import these bananas in preference to Latin American fruit. In the view of the EC the graph clearly demonstrated the emptiness of the Complaining parties' chief arguments in that: the creation of the EC single market for bananas had not had unduly restrictive effects on Latin American exporting countries; the volume of the tariff quota was justifiable and reasonable; the volume imported under the tariff quota had always been significantly above its bound level; the administrative procedures governing imports were clearly not acting as a deterrent to the utilization of the tariff quota; and there was no discernable shift in sources of supply from "others", which had remained remarkably constant throughout the three and a half year life of the EC banana policy at 63-64 per cent of total supply.
IV.174 With respect to Article XIII:2, the EC argued firstly that in applying it, one should refer to the chapeau of the paragraph where it was indicated that:
"in applying import restrictions to any product, contracting parties shall aim at the distribution of trade in such a product approaching as closely as possible the shares which the various contracting parties might be expected to obtain in the absence of such restrictions and to this end shall observe the following provisions".
The last part of that chapeau made it clear that the principle stated in the first part of the chapeau was respected as soon as one of the alternative provisions in paragraph 2(a) to (d) was correctly observed. Consequently the fulfilment of the obligations of one of the alternative provisions listed in Article XIII:2(a) to (d) entailed automatically the fulfilment of the obligations of non-discrimination under the Article. Secondly, in allocating the tariff quota among supplying countries the EC followed the principle of Article XIII:2(d). Under Article XIII:2(d) two methods of possible allocation of the (tariff) quota were indicated: (i) through an agreement with respect to the allocation of shares in the quota with all other contracting parties having a substantial interest in supplying the product concerned; and (ii) when method (i) was "not reasonably practicable", through allocation to contracting parties having a substantial interest in supplying the product of shares based upon proportions, supplied by such contracting parties during a previous representative period, of the total quantity or value of imports of the product, due account being taken of any special factors which have affected or may be affecting the trade in the product. In a response to a question posed by the Panel, the EC submitted that under Article 31 of the Vienna Convention on the Law of the Treaties, "a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose". The text of Article XIII:2(d) imposed a hierarchy of criteria: method (i) above was to be applied prior to method (ii) above, but nothing in that Article indicated that the first criteria was an absolute alternative to the second. That was to say that in cases when an agreement could be reached only with some of the parties which were Members having a substantial interest, while agreement could not be reached with other similar parties, then the two criteria could (and perhaps should) be combined.
IV.175 In this light, after the deconsolidation of the obsolete 20 per cent ad valorem tariff rate, the EC negotiated, during the Uruguay Round, the creation of a tariff quota where the shares in importing quantities were allocated, in their major part, among parties having "a substantial interest in supplying the product concerned". The allocation among the countries signatories of the BFA was based on the statistical data of the reference period which was based on the latest three years of importation which could be considered representative of normal trade flows. The same treatment was offered to Guatemala with which the EC sought agreement in applying the tariff quota - indeed Guatemala, was offered, in 1993, 1.5 per cent of the tariff quota (compared to the average imports to the EC from Guatemala for the period 1989-91 of 1.56 per cent) while after its entry into force, Guatemala has continued to supply similar quantities (1.3 per cent in 1993 and 1.0 per cent in 1994 according to the latest official statistics). Even Ecuador, Honduras and Panama, while not contracting parties to the GATT, were offered a share in the allocation on the basis of the same objective statistical evidence. They all refused.
IV.176 The EC submitted that it proceeded to distribute the quota according to the agreement reached with the BFA on one side and the "others" on the other side, while at same time it preserved entirely "the distribution of trade of bananas approaching as closely as possible the shares which the various contracting parties might be expected to obtain in the absence" of such tariff quota. As it had already been indicated, many of the tariff quotas consolidated in the Uruguay Round were country-specific, i.e. they listed a limited number of countries to which they applied and for which certain quantities were reserved, while what was left of the tariff quota was allocated to "others". In the EC view, it could not be held responsible for the lack of will and cooperation of a Complaining party under the Uruguay Round negotiations to achieve a different result.
IV.177 Thirdly, the EC argued, the size of the tariff quota itself or the very existence of the tariff quota could not be disputed in this procedure. The establishment of a tariff quota was legally admissible under the GATT and was one of three possible tariff structures that could be conceded in the schedules in application of Article II, the others were a specific duty and an ad valorem duty. A combination of them was also possible and accepted. From the structure and the drafting history of the GATT it was clear that a contracting party, even in case of legally bound tariffs (which was the case of 99 per cent of the products imported to developed countries under the present conditions after the Uruguay Round) was entitled to bind them at a level that it considered appropriate and even subsequently modify them under certain conditions (Article XXVIII of GATT). A party was entitled to apply a tariff that could be, for instance, 100 per cent, 1000 per cent or 10,000 per cent of the value of a given product expressed in terms of specific amount or ad valorem. The same result could legally be achieved through the creation of a tariff quota which was neither prohibited nor impeded provided that Articles II and XIII were respected.122 The banana tariff quota was bound under the Uruguay Round in EC Schedule LXXX, and respected the provisions of Articles II and XIII. The other parties signatories of the Marrakesh Protocol and the parties acceding later to the WTO explicitly accepted the multilateral result of these negotiations.
IV.178 With respect to the specific arguments made by the Complaining parties concerning the enlargement of the EC, the EC replied that the accession of Austria, Finland and Sweden to the EC became effective on 1 January 1995. As was usual in such circumstances, the EC engaged in the procedure of Article XXIV:6 of GATT, i.e. the EC made itself available for negotiations under Article XXVIII with any Member having initial negotiating rights or having a substantial interest in the trade of specific products. Although considerable interest was expressed by various Members in the adjustment of agricultural tariff quotas subsequent to accession, in particular in the grains sector, none of the traditional trading partners of the EC in bananas manifested itself for adjustment of the tariff quota on bananas. In these circumstances, the EC Commission decided that the EC should act autonomously. It ensured that there was an increase in the tariff quota by 353,000 tonnes as from the date of accession. This amount corresponded to the average yearly consumption of bananas in these three countries over the period 1991-1993.123 Although the increase was autonomous, it was not ad hoc, as was borne out by the table below provided by the EC. This additional quantity had become part of the overall system and was subject to the same rules as the rest of the tariff quota. The actual consolidation of the tariff quota in the Schedule of the EC-15, however, remained the same as it was under the EC-12, i.e. 2.2 million tonnes.
Net imports, in tonnes, of bananas by the three new member States
during the period 1991-93
According to the EC, these were the statistics supplied by the relevant authorities in Austria, Finland and Sweden and used to establish the appropriate volume to be added to the tariff quota. The EC submitted, in an answer to a question by the Panel, a table that showed the volume of re-exports of bananas from the three new member States. In 1994, re-exports totalled 119,408 tonnes. The import figures supplied by the relevant authorities in Austria, Finland and Sweden, which were used to calculate the appropriate volume of tariff quota (353,000 tonnes) were net of re-exports.
IV.179 Guatemala and Honduras considered that the EC's summary assertion that during the enlargement of the EC, "none of the traditional trading partners of the Community manifested itself for negotiations under Article XXIV:6" ignored the accession circumstances surrounding the banana regime in 1995. When Austria, Finland and Sweden acceded to the EC, it remained unclear how those countries were to be integrated into Regulation 404/93 et seq. For the whole of 1995, banana imports into the EFTA-3 were governed by "transitional" measures. In 1996, when the EFTA-3 were brought under the regime created by Regulation 404
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