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WTO争端解决案例
  • 欧盟诉美国进口限制的纠纷
  • United States — Import measures on certain products from the European Communities (Brought by EC)
  • 文书
    United States - Import Measures on Certain Products from the European Communities - Report of the Panel - Addendum
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    相关条款
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  • DSU 03.07
  • DSU 21.05
  • DSU 22.06
  • DSU 23
  • DSU 23.02.a
  • DSU 23.02.c
  • GATT 1994 I
  • GATT 1994 II
  • GATT 1994 VIII
  • GATT 1994 XI
  • VAL 1994 13
  • DSU 23.01
  • 机构
    (Bodies)
  • 争端解决机构 (Dispute Settlement Body)
  • Panel WTO : United States - Import Measures on Certain Products from the European Communities
  • 涉案国家
    (Countries)
  • 多米尼加 (Dominica)
  • 厄瓜多尔 (Ecuador)
  • 欧盟 (European Union)
  • 印度 (India)
  • 牙买加 (Jamaica)
  • 日本 (Japan)
  • 圣卢西亚 (Saint Lucia)
  • 美国 (United States)
  • 主题
    (Subjects)
  • 争端解决 (DISPUTE SETTLEMENT)
  • 贸易屏障 (TRADE BARRIERS)
  • 进口限制 (IMPORT RESTRICTIONS)
  • 进口税 (CUSTOMS DUTIES)
  • 关税 (DUTIES)
  • 定量限制 (QUANTITATIVE RESTRICTIONS)
  • 海关估值 (CUSTOMS VALUATION)
  • 专家组 (PANEL)
  • 让步 (CONCESSIONS)
  • 关税让步 (TARIFF CONCESSIONS)
  • 最惠国待遇 (MFN TREATMENT)
  • 文书类别
    (Types)
  • 专家组报告 (Panel report)
  • 全文

    WORLD TRADE

    ORGANIZATION

    WT/DS165/R/Add.1

    17 July 2000

    (00-2916)

    Original: English

    UNITED STATES - IMPORT MEASURES ON CERTAIN PRODUCTS

    FROM THE EUROPEAN COMMUNITIES

    Report of the Panel

    Addendum

    The present Addendum contains the Appendices of the Report of the Panel which is contained in document WT/DS165/R.

    Appendix 1.1 The First Submission of the European Communities (10 November 1999)

    Appendix 1.2 The EC oral presentation at the First Substantive Meeting (16 December 1999)

    Appendix 1.3 The EC final statement at the First Substantive Meeting (17 December 1999)

    Appendix 1.4 The EC Responses to Questions of Panel and Parties (13 January 2000)

    Appendix 1.5 Rebuttal Submission of the European Communities (21 January 2000)

    Appendix 1.6 The EC letter dated 25 January 2000 concerning the scope of the Panel's terms of

    reference (25 January 2000)

    Appendix 1.7 The EC Responses to Additional Questions of Panel (8 February 2000)

    Appendix 1.8 The EC oral presentation at the Second Substantive Meeting (9 February 2000)

    Appendix 1.9 The EC final statement at the Second Substantive Meeting (9 February 2000)

    Appendix 1.10 The EC Responses to Additional Questions of Panel (10 February 2000)

    Appendix 2.1 The First Submission of the United States (6 December 1999)

    Appendix 2.2 The US oral presentation at the First Substantive Meeting (16 December 1999)

    Appendix 2.3 The US closing remarks at the First Substantive Meeting (17 December 1999)

    Appendix 2.4 The US Responses to Questions of Panel and Parties (13 January 2000)

    Appendix 2.5 Rebuttal Submission of the United States (including its cover letter)

    (21 January 2000)

    Appendix 2.6 The US Responses to Additional Questions of Panel (8 February 2000)

    Appendix 2.7 The US oral presentation on matters relating to the scope of this dispute at the

    Second Substantive Meeting (9 February 2000)

    Appendix 2.8 The US oral presentation at the Second Substantive Meeting (9 February 2000)

    Appendix 2.9 The US closing statement at the Second Substantive Meeting (9 February 2000)

    Appendix 2.10 The US Responses to Additional Questions of Panel (10 February 2000)

    Appendix 3 Oral presentation of Dominica and St. Lucia at Third Party session

    (17 December 1999)

    Appendix 4 Oral presentation of Ecuador at Third Party session (17 December 1999)

    Appendix 5 Third Party Submission of India (10 December 1999)

    Appendix 6 Third Party Submission of Jamaica (8 December 1999)

    Appendix 7 Oral presentation of Japan at Third Party session (17 December 1999)

    Appendix 1.1

    First Submission of the European Communities

    (10 November 1999)

    I.THE SCOPE OF THIS PROCEDURE AND THE OBJECTIVE PURSUED BY THE EC

    1.The European Communities have requested the DSB to establish the present Panel against the United States with a view to arrive at a ruling recommending the US to withdraw the illegal trade measure taken on 3 March 1999 and confirmed on 19 April 1999 (hereinafter: the "Measure"), limiting the importation of selected products originating in the European Communities. The EC considers that the facts of the case are straightforward and do not need, therefore, lengthy debates. The EC accordingly requests the Panel to proceed expeditiously within the shortest possible time-frame with the examination of the matter under its terms of reference. In this respect, the EC would like to draw the Panel's attention to the fact that the illegal US measures continue to deploy their detrimental effects on the EC economic operators.

    II.THE FACTS AT ISSUE

    2.On 7 January 1998, the Arbitrator Dr. El-Naggar ruled that

    "& pursuant to Article 21.3 (c) [of the DSU], the 'reasonable period of time' for the European Communities to implement the recommendations and rulings of the DSB adopted on 25 September 1997 in European Communities - Regime for Importation, Sale and Distribution of Bananas, shall be the period from 25 September 1997 to 1 January 1999"1.

    3.The Council of the European Union adopted Regulation (EC) No. 1637/98 of July 20, 1998 amending Regulation (EEC) 404/93 on the common organisation of the market in bananas (OJ L 210 of July 27, 1998). Regulation 1637/98 entered into force on July 31, 1998 and was applicable as from January 1, 1999. Making use of the delegated powers attributed to it by the Council, the European Commission adopted Commission Regulation (EC) No. 2362/98 of October 28, 1998 laying down detailed rules for the implementation of Council Regulation (EEC) No. 404/93 regarding the imports of bananas into the Community (OJ L 293 of October 31, 1998). It entered into force on 1 November 1998 and was applicable in its entirety as from 1 January 1999.

    4.The modifications introduced by these Regulations created a completely new set of rules addressing specifically those elements of the previous banana regime which were found to be incompatible with WTO rules both with respect to GATT and to GATS.

    5.Well before the conclusion of the reasonable period of time granted by the Arbitrator to the EC, and at a time when the EC had not yet adopted the entirety of the envisaged measures in order to comply with the recommendations and rulings of the DSB adopted on 27 September 1997, the United States published three notices in the US Federal Register respectively on 22 October, 10 November and 29 December 19982 (EC Annex I, II and III) of proposed determination of action by imposing prohibitive (100 per cent ad valorem) duties on selected products from the European Communities. This proposed action was based on the unilateral determination by the United States that 玹he measures the EC has undertaken to apply as of January 1, 1999 fail to implement the WTO recommendations concerning the EC banana regime? The actions proposed are intended to be in place 玝eginning as early as February 1, 1999?

    6.The publication of the above-mentioned notices was the enactment of a political commitment taken by the US president vis-?vis the US congress (EC Annex IV), which explicitly refers to a bill which was discussed at that time in the US congress. The commitment made in the letter was thus clearly aimed at preventing the US legislator to adopt legislation imposing immediate economic sanctions against the EC (EC Annex V and VI).

    7.On 14 January 1999, without having requested a dispute settlement procedure as it was required to do under Article 21.5 of the DSU, the US nevertheless requested authorisation from the DSB under Article 22 of the DSU to suspend the application to the EC of tariff concessions and related obligations under the GATT.

    8.After thorough debates in the DSB and in the General Council that underlined the extraordinary nature of the US request and the danger that such action was creating for the WTO dispute settlement system3, in order to limit as much as possible the damage for its economic operators, on 29 January 1999 the EC objected to the level of suspension proposed by the United States and the matter was referred to arbitration pursuant to article 22.6 of the DSU.

    9.On 2 March 1999, the Arbitrator issued an "initial" decision4. The cover letter sent to the parties to the procedure stated the following

    "I write to inform you that the Arbitrators have today issued an initial decision to the parties in which we rule on matters related to the scope of our work and to certain aspects of the methodology and calculations of the United States for determining the level of suspension of concessions. In addition, we have requested the parties to supply us with additional information. This information should enable us to take a final view on the level of nullification or impairment based on the WTO inconsistency, if any, of the revised EC banana regime, and, if relevant, to determine the level of suspension of concessions or other obligations equivalent to the level of such nullification or impairment. Following our receipt and analysis of that information, we expect to be in a position to issue a final decision in this matter soon thereafter."

    10.Notwithstanding this very clear statement by the Arbitrator, on the basis of its unilateral determination that the European Communities had failed to implement the DSB's recommendations on this regime, the USTR announced on the following day (3 March 1999) that the U.S. Customs Service would begin as of that date withholding liquidation and reviewing the sufficiency of bonds on imports of selected European products covering trade in an amount of $520 million (EC Annex VII).

    Normally, a customs debt is incurred upon importation of goods liable to import duties and is established on the basis of the duty applicable to the product that is currently imported. The level of the duty is the one determined in the US tariff nomenclature and its level should not exceed the level set out in the US WTO Schedule of commitments.

    In practice, the US measure suspended the liquidation of a customs debt on importation according to the normal rules, rendering thus impossible the payment of duties as they appeared in the US customs nomenclature. In addition to this action, the US measure imposed the deposit of a bond (or security), which could not be released until such time as the customs debt in respect of which it was given was extinguished or could no longer arise. The level of the security was calculated not on a level derived from but not exceeding the US bound duties (i.e. the ordinary customs debt), but to a level far higher, in fact at 100% ad valorem (i.e. the arbitrary level of retaliation unilaterally set by the US) (EC Annex VIII).

    In addition, the decision to withhold customs liquidation on 3 March 1999 imposed upon importers of selected European products a contingent duty liability of 100 percent ad valorem, discriminated against European products and importers since importers of like products of other origins were only exposed to a duty liability corresponding to the bound customs tariff.

    11.On 9 April 1999, the Arbitrator issued a decision determining the level of nullification or impairment of the US at US $191.4 million5. On the same day (9 April 1999), the United States requested the DSB authorisation to suspend concessions or other obligations to the EC for that amount. The authorisation was granted on 19 April 19996.

    12.Effective as from 19 April 1999, the USTR confirmed (EC Annex IX and X) that a 100% ad valorem rate of duty is applied retroactively to the EC products listed in the notice that had entered, or withdrawn from warehouse, for consumption on or after 3 March 1999.

    III.THE VIOLATION OF US WTO OBLIGATIONS

    A.THE VIOLATION OF ARTICLE 22 OF THE DSU

    13.According to Article 22.6, last sentence, of the DSU

    "Concessions or other obligations shall not be suspended during the course of the arbitration".

    14.By implementing its 3 March measure, the US has breached this rule. In fact, while the arbitration procedure was still on-going, the US imposed a requirement exclusively on products imported from the EC of a contingent duty liability of 100 percent, while importers of like products of other origins were subject to a duty liability corresponding to the bound customs tariff. The bonds on imports from the EC corresponded (or were committed as to correspond) to that higher contingent duty liability covering trade in an amount of $520 million.

    15.The real purpose and effect of the measure was to deter imports altogether, as importers would logically be very reluctant to accept a risk of having to pay 100% ad valorem duties retroactively. As the Deputy USTR P. Scher indicated at a press conference held on 3 March 1999 (EC Annex XI),

    "we retaliated by effectively stopping trade as of March 3 in response to the harm caused by the EC's WTO-inconsistent banana regime".

    Moreover, as is demonstrated by the Arbitrator's final decision, the amount of US$ 520 millions of the value of EC imports subject to suspension of concessions or other obligations, unilaterally determined by the US authorities, has no basis under WTO law.

    B.THE VIOLATION OF ARTICLES I, II, XI AND VIII OF THE GATT 1994

    16.In addition, it is evident from the facts mentioned above that the Measure at issue is inconsistent with:

    (a)Article I of the GATT 1994 since it discriminates between products originating in the EC and the products originating in all other countries. On 3 March 1999 only selected products originating in the EC were burdened by the US measure while other Members' like products were not;

    (b)Article II of the GATT 1994 insofar as it denies as from 3 March 1999 the unconditional right to import the selected EC products at a tariff not in excess of that set forth and provided in the US Schedule. The US measure meant that every EC operator importing one of the products unilaterally targeted by the US measure was liable to pay a tariff incomparably higher than the duty bound in the US Schedule;

    (c)Article XI of the GATT 1994, insofar as the consequence of the "retaliatory" measure was, in the Deputy USTR's own language, to "effectively stopping trade as of March 3";

    (d)Articles II.2(a) and VIII.1 of the GATT 1994, insofar as the requirement to submit or commit bonds beyond the bound rate duty upon importation of selected EC products results in increased costs for importers that constitute "other charges" imposed in connection with importation that are prohibited. It is undeniable that the deposit of a security (or posting of a bond) necessarily imposes a financial burden since each and every operator (or its customs agent) subject to such a measure is obliged:

    -either to deposit a lump sum (which entails necessarily one of the following situations: either the sum is ready and available for the operator, in which case it suffers a loss of interests and thus a cost; or must borrow the money, in which case it is liable for the payment of the interests for the loan)

    -or to deposit a financial guarantee, which the financial institutions deliver only at a cost related to the guaranteed amount.

    -or, finally, to commit part of a general security (or continuous bond). If the general security is not sufficient, an additional security is required or an increase of the general security must be provided.

    17.The Measure in fact obliged the operators or their customs agents to follow the second or third option described in paragraph 16 (d) above (EC Annex VIII and X). Both options entailed a burden additional to what was required by the US customs authorities in application of ordinary customs duties.

    C.THE VIOLATION OF ARTICLE 23 AND ARTICLE 3 OF THE DSU.

    18.The USTR made clear in a public notice requesting comments on the planned 3 March 1999 action that it was required under Sections 301-310 to implement that action on that date:

    Given that the reasonable period of time for the EC's implementation of the WTO recommendations concerning the EC banana regime expires on January 1, 1999, the USTR must make the determination required by section 306(b) no later than January 31, 1999, and, in the event of an affirmative determination, must implement further action no later than 30 days thereafter.7

    19.The USTR thus considered itself bound to take retaliatory action 60 days after the expiry of the implementation period in response to a perceived failure to implement rulings or recommendations of the DSB. The USTR added

    "these time frames permit the USTR to seek recourse to the procedures for compensation and suspension of concessions provided in Article 22 of the DSU"8.

    20.However, when it turned out that the Article 22 procedures were not completed on 3 March 1999 and that the United States could therefore not obtain the necessary DSB authorisation at the time required by its domestic legislation, the USTR nevertheless imposed trade sanctions by "effectively stopping trade". This course of events confirms that the USTR implemented the further action (unilaterally) decided upon only on the basis of its domestic legislation and thus irrespective of whether that action conformed to the requirements of Article 23; paragraphs 1 and 2, of the DSU.

    21.Under Article 23 of the DSU, the United States has accepted an unconditional and unqualified obligation to impose suspension of concessions or other obligations only with DSB approval but has applied its domestic legislation in breach of such fundamental obligation under the WTO Agreements.

    Moreover, the US measure is at odds with WTO law with regard to its timing, its amount and the total disregard of WTO procedures, thus fundamentally undermining the authority of the WTO bodies dealing with dispute settlement. It also undermines the expectation that WTO Members would ensure the conformity of their domestic administrative procedures with WTO law, in particular with the requirement of the DSU.

    As the Panel on "US-Sections 301-310"9 has indicated:

    "Article 23.1 (& ) prescribes a general duty of a dual nature. First, it imposes on all Members to "have recourse to" the multilateral process set out in the DSU when they seek the redress of a WTO inconsistency. In these circumstances, Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations. This, what one could call "exclusive dispute resolution clause", is an important new element of Members' rights and obligations under the DSU. Second, Article 23.1 also prescribes that Members, when they have recourse to the dispute settlement system in the DSU, have to "abide by" the rules and procedures set out in the DSU. This second obligation under Article 23.1 is of a confirmatory nature: when having recourse to the DSU Members must abide by all DSU rules and procedures.

    Turning to the second paragraph under Article 23, Article 23.2 - which, on its face, addresses conduct in specific disputes - starts with the words "[i]n such cases". It is, thus, explicitly linked to, and has to be read together with and subject to, Article 23.1.

    Indeed, two of the three prohibitions mentioned in Article 23.2 - Article 23.2(b) and (c) - are but egregious examples of conduct that contradicts the rules and procedures of the DSU which, under the obligation in Article 23.1 to "abide by the rules and procedures" of the DSU, Members are obligated to follow.10 These rules and procedures clearly cover much more than the ones specifically mentioned in Article 23.2.11 There is a great deal more State conduct which can violate the general obligation in Article 23.1 to have recourse to, and abide by, the rules and procedures of the DSU than the instances especially singled out in Article 23.2.12

    22.It finally undermines the achievement of the fundamental objectives under Article 3 of the DSU. Article 3 of the DSU describes the dispute settlement system of the DSU as "a central element in providing security and predictability to the multilateral trading system". As the Appellate Body has indicated in the "LAN" report13, the objective of the "security and predictability of the multilateral trading system" is also an object and purpose of the substantive WTO Agreements themselves. It is the reflection of the general principle of public international law "pacta sunt servanda" (Article 26 of the Vienna Convention of the Law of Treaties), which requires that international agreements be performed in good faith.

    D.THE VIOLATION OF ARTICLE 21.5 OF THE DSU.

    23.Article 21.5 of the DSU provides that

    "where there is a disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including whenever possible resort to the original Panel. The Panel shall circulate its report within 90 days after the date of referral of the matter to it"

    24.This provision, and in particular the terms "shall", "Panel" and "these dispute settlement procedures" must be interpreted in accordance with the principles of the Vienna Convention on the Law of Treaties, i.e. it must 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" (Article 31.1).

    25.It is the EC's view that the ordinary meaning of the term "shall" is "expressing a command or duty"14. In the WTO context, the term "Panel" is defined in Articles 6, 7 and 8 of the DSU. The terms "these dispute settlement procedures" interpreted in "good faith" in the context of Article 21.5 mean nothing else than a dispute settlement procedure under the DSU, which includes a Panel as defined in Articles, 6, 7 and 8 (and thus not just an arbitration procedure whose legal nature, scope of action, procedural and substantial guarantees with respect to the right of defense, access to the Appellate Body, access for third parties is incomparable to a panel procedure).

    26.As the Appellate Body stated in the "India - Mailbox" case15, paragraph 45,

    "The duty of a treaty interpreter is to examine the words of the treaty to determine the intentions of the parties. This should be done in accordance with the principles of treaty interpretation set out in Article 31 of the Vienna Convention. But these principles of interpretation neither require nor condone the imputation into a treaty of words that are not there or the importation into a treaty of concepts that were not intended."

    27.Thus, "where there is a disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings" there is an obligation ("shall") to have recourse to a Panel procedure under Article 21.5 of the DSU (unless the complainant decides not to proceed as it is allowed under Article 3.7, first sentence, of the DSU).

    28.The US did nothing of the sort. Well before the conclusion of the 'reasonable period of time' and at a time when not all the EC measures necessary to implement recommendations and rulings of the DSB had yet been adopted by the competent EC Institutions, the US had already unilaterally determined that the EC measures violated the EC's WTO obligations. On the basis of a unilateral determination, driven exclusively by a domestic political agenda prone to intensive lobbying by industry interests, the US has unilaterally suspended tariff concessions to the EC for selected products as from 3 March 1999 up to a level that was both legally unjustified and economically unjustifiable.

    29.As the Panel report on "US - Sections 301 - 310"16 pointed out at paragraph 7.75:

    "Providing security and predictability to the multilateral trading system is another central object and purpose of the system which could be instrumental to achieving the broad objectives of the Preamble. Of all WTO disciplines, the DSU is one of the most important instruments to protect the security and predictability of the multilateral trading system and through it that of the market-place and its different operators. DSU provisions must, thus, be interpreted in the light of this object and purpose and in a manner which would most effectively enhance it".

    Notwithstanding, the US measure ignored completely such fundamental reason for the existence, under the WTO Agreements, of a multilateral system for settling disputes and for authorising measures aimed at re-balancing the concessions between Members in case of violation of a WTO obligation.

    Conclusions

    The EC requests the Panel to find that the US measure under its scrutiny has breached Articles 3, 21.5, 22 and 23 of the DSU and Articles I, II, XI and VIII of the GATT 1994. The US should be urged to take all the necessary measures to comply with such findings.

    Appendix 1.2

    The EC oral presentation at the First Substantive Meeting

    (16 December 1999)

    Mr. Chairman, distinguished Members of the Panel,

    1.The European Communities have initiated this procedure with the aim to make the DSB re-affirm, and rule on, some principles of fundamental importance for every system whose functioning is based on law and not on sheer force: nobody can be judge and jury on the same issue, nobody can take justice in their own hands without a prior review by an independent and neutral judge, nobody can disregard the procedures set forth in that legal system, which are aimed at assuring the correct and orderly functioning of that system and, most importantly, the rights of defence.

    2.In sum, we are before you to have the principles of a rules based dispute settlement system affirmed against a system of power based bullying.

    3.What you, Mr. Chairman and Members of the Panel, are required to do by the terms of reference of this panel is thus to examine and make recommendations on a US measure taken on 3 March 1999 and confirmed on 19 April 1999 which limits the importation of selected products originating in the European Communities. You are not required, because this is in fact completely irrelevant for the resolution of the present dispute, to review the work of other bodies established by the DSB in the context of another dispute settlement procedure or to redraw history, as the US would wish you to do, by qualifying events in a way which simply does not match the reality.

    4.In this respect, while the EC is fully prepared at any time - right now, tomorrow or in the next few weeks - to clarify any issue you may deem appropriate, the EC will refrain from analysing in detail all the incorrect presentations concerning the facts which were at the basis of earlier disputes that the US has made in 17 out of 28 pages of its first written submission. The EC believes that such an exercise would amount to a waste of everybody's time.

    5.The European Communities considered in its first written submission that the facts of this case were straightforward and did not need much elaboration from our part. The US first written submission confirms the EC's understanding.

    6.It may be worth while to recapitulate briefly where we stand on the assessment of the facts as a result of the first exchange of written submissions:

    (a)The United States does not contest that the US Measure of 3 March 1999 has an effect on the duties to be paid. At page 16 of its submission, the US affirms that

    1."Entry procedures in the United States permit timely or immediate release of goods into the United States. Since liquidation of an entry usually is performed after the goods are in the stream of commerce, bonding is required in order to guarantee the payment of these additional duties or fees."17 (emphasis added)

    Thus, according to the US itself, as soon as the goods were cleared through the US customs on or after 3 March 1999 and a bond amounting to a 100% ad valorem duty was submitted or committed, the importer was bound to pay the (prohibitive) increased duty at the time of liquidation of the customs debt. The US confirms moreover that the bonding requirement was essential in order to ensure the collection of the (unauthorised) 100% ad valorem duties as from 3 March 1999. It is also confirmed that the bonding requirement was imposed upon a list of products amounting to a trade value of over half a billion US$, while, as we all know, the Arbitrator eventually set the level of nullification or impairment of US benefits, and the corresponding equivalent level of suspension of concessions, at 191.4 million US$, a third of the initial amount.

    (b)The United States does not contest, and cannot contest, the declaration made by the Deputy USTR attached as Annex X to the EC's first written submission, according to which

    2."we retaliated by effectively stopping trade as of March 3 in response to the harm caused by the EC's WTO-inconsistent banana regime".

    Thus, it is confirmed that as a result of the imposition by the US customs of the bonding requirements under (1) above, a unilateral disproportionate and unauthorised US retaliatory measure was put in place effective as from 3 March 1999, even though the arbitration procedure was still on-going.

    (c)In its first written submission, the US attempts to confuse the issue by affirming in paragraph 31, in fine, that

    3."Th[e requirement of a single transaction bond equal to the entered value of the merchandise, corresponding to 100% ad valorem] did not actually assess duties, nor did it prejudge the amount of the total value of the products which would be assessed higher duties."

    However, the US is unable to contest not only the affirmation of the Deputy USTR under (2) above, but also that it was not possible for any importer as from 3 March 1999 to import a product included in the unilaterally established retaliation list just by paying a duty not exceeding the tariff bound in the US Schedule of tariff concessions for that product (i.e. without application of the 100% ad valorem duty). Apart from the stopping of the trade, this is the other main consequence in practice of the 3 March US measure of "withholding liquidation", which literally prevents the immediate liquidation of any customs debt.

    (d)While insisting on subjective (and, as a matter of fact, incorrect) descriptions of what happened before and during the arbitration procedure which was concluded on 19 April 1999, the US does not seriously contest, and cannot contest, two important statements of the Arbitrator in the initial decision18 and in the final decision19 respectively:

    4."(& ) we have requested the parties to supply us with additional information. This information should enable us to take a final view on the level of nullification or impairment based on the WTO inconsistency, if any, of the revised EC banana regime, and, if relevant, to determine the level of suspension of concessions or other obligations equivalent to the level of such nullification or impairment."

    5."(& ) [W]e could resort to the option of measuring the level of nullification or impairment on the basis of our findings in the original dispute, as modified by the Appellate Body and adopted by the DSB. To do that would mean to ignore altogether the undisputed fact that the European Communities has taken measures to revise its banana import regime".

    Thus, it may well be that an excess of polemics got the US lawyers carried away when they affirmed in the first US submission that

    6."(& ) the arbitrators thus concluded that what the EC now characterizes as a completely new set of rules for its bananas regime was in great part a repackaging of those very same elements which the panel and Appellate Body originally found inconsistent with the EC's WTO obligations (& )"

    Polemics or not, the fact remains that the Arbitrator on 2 March 1999 had not yet taken any decision on the level of nullification or impairment, "if any", concerning the "revised" banana import regime that had been "undisputed[ly]" adopted by the EC before the end of the reasonable period of time. This is all the more confirmed when considering the following statement of the Arbitrator20:

    7."We also note that both parties accept that it is the consistency or inconsistency with WTO rules of the new EC regime - and not of the previous regime - that has to be the basis for the assessment of the equivalence between the level of nullification suffered and the level of the proposed suspension."

    (e)The United States does not contest, finally, that the requirement to submit or commit bonds beyond the bound rate duty upon importation of selected EC products resulted in increased costs for importers that constitute "other charges" imposed in connection with importation.

    7.In the EC's view, therefore, the undisputed facts of this case are confirmed as follows:

    The United States did not pursue any prior dispute settlement procedure under Article 21.5 of the DSU, as it should have done, with respect to the revised banana regime that the EC had adopted undisputedly before the end of the reasonable period of time. It undertook on 3 March 1999 to unilaterally impose retaliatory measures on selected products originating from the EC for an amount of over half a billion US$. This action was put in place notwithstanding the fact that an arbitration procedure was still under way and was not concluded before 19 April 1999 when a level of nullification or impairment was set at one third of the level unilaterally determined and imposed by the US. The practical effect of this imposition was (1) to effectively stop the trade on the selected products as from 3 March 1999 and (2) in any case, to deprive as from 3 March 1999 the importers of the their right of importing those products subject to a duty not exceeding the tariff bound under the US Schedule of tariff concessions. Moreover, it triggered additional costs for importers that constitute "other charges" imposed in connection with importation.

    8.If we now turn to the legal consequences that should be drawn from the facts as they have just been summarised, the EC considers that the task of the panel has been considerably eased by the presentation made by the United States in its first written submission.

    The EC is firmly of the view that the authorisation of suspension of concessions or other obligations by the DSB under Article 22.2 or 22.7 of the DSU can in no case be granted retroactively. The United States claims in its first written submission that the DSU is silent on this question21, but this is incorrect. In fact, Article 22.6, last sentence, contains the following rule that limits the right of the complainant to apply the suspension of concessions or other obligations:

    "Concessions or other obligations shall not be suspended during the course of the arbitration."

    This provision would become meaningless if the suspension of concessions or other obligations could be applied retrospectively after having been authorised by the DSB. As the present case illustrates, it is in fact impossible in practice to apply the suspension of concessions or other obligations retrospectively unless some kind of contingency measure has already been taken which clearly announces the future definitive measure and ensures its enforceability. This contingency measure by itself is however inconsistent with the clear and unqualified obligation not to resort to the suspension of concessions or other obligations during the course of the arbitration procedure, because - as is again illustrated by the present case - such contingency measure will have exactly the same trade effect as the suspension of concessions or other obligations itself. This is because no importer will be prepared to take the risk of being subject to a prohibitive duty after the event, since the importation as such cannot be undone once the product has been put on the market of the importing country.

    9.Thus, there is no way in which the US measures in this case could be justified by the alleged silence of the DSU or by referring to a "liability" of the EC as from the end of the reasonable period of time. Any such "liability" presupposes that, before there can be a question about what measures may or may not be justified as a response to an alleged violation of WTO obligations, that this allegation has been confirmed by the appropriate WTO body under the appropriate procedures provided for under the multilateral dispute settlement system. Such "liability" can thus in no case be invoked by any WTO Member before the relevant procedures under the DSU have been completed.

    10.We would also like to observe, in this context, that the date chosen by the United States for the retroactive application of the suspension of concessions or other obligations, i.e. 3 March 1999, finds its basis in sections 306(b)(2) and 305(a)(1) of the US Trade Act of 1974 (as amended), because under those provisions the US Trade Representative is required to take action at the latest two times 30 days after the end of the reasonable period of time22. This also follows very clearly, in spite of the US denial in its first written submission, from the notices published in the Federal Register on the subject. One of these notices contains the following official statement by the US authorities:

    "Given that the reasonable period of time for the EC's implementation of the WTO recommendations concerning the EC banana regime expires on January 1, 1999, the USTR must make the determination required by section 306(b) no later than January 31, 1999, and, in the event of an affirmative determination, must implement further action no later than 30 days thereafter"23 (emphasis added).

    The EC would note in this context that it is certainly no coincidence that the time limit of 30 days after 31 January 1999 expired precisely on 2 March 1999 (given that in 1999, February had 28 days).

    11.This is confirmed by another Federal Register notice which reads in relevant part as follows:

    "The dates on which the USTR intends to implement action - February 1 or no later than March 3, 1999 - correspond to the dates contemplated by sections 306(b) and 305(a) of the Trade Act as well as Article 22 of the DSU"24 (emphasis added).

    Thus, the statement that no action was taken by the USTR under section 301 et seq. on 3 March 1999 contained in the first written submission of the United States in the present procedure25 is in open contradiction with contemporaneous official notices published in the Federal Register which is nothing less than the official gazette of the US government.

    12.The legal construction submitted by the US in the present dispute according to which the action taken on 3 March 1999 was based on a so-called "potential liability" of the EC26 resulting from its alleged failure to implement the recommendations of the DSB in the Bananas dispute is thus nothing else than an ex post facto attempt to provide a justification to a measure which was taken for reasons related exclusively to domestic political developments in the United States.27 The EC would like to draw the attention of the Panel to the flagrant contradiction between this action and the explicit, official, repeated and unconditional commitment which the US representatives gave when they appeared before the panel on "United States - Sections 301-310 of the Trade Act of 1974" according to which the US Trade Representative would "base any section 301 determination that there has been a violation or denial of US rights under the relevant agreement on the panel or Appellate Body findings adopted by the DSB"28.

    13.As we have already explained in detail in our first written submission, the US measures that are the subject matter of the present complaint by the European Communities were taken in flagrant violation of the obligations of all WTO Members to respect the provisions of Article 23 of the DSU which is entitled "Strengthening of the Multilateral System". The US claims in its first written submission that "[i]t is difficult to respond to the EC's vague arguments with respect to Article 23 inasmuch as the EC never identifies the precise obligations in question"29.

    14.If the United States has difficulties with the identification of the rules contained in Article 23 of the DSU to which the EC refers in the present case, this only confirms the fundamental disregard of those rules by the United States, since these rules were analysed in great detail in the recent panel report on "United States - Sections 301-310 of the Trade Act of 1974". The guiding principle of Article 23 is contained in its paragraph 1 which also governs the more detailed provisions of paragraph 2 since this paragraph starts with the words "In such cases, Members shall" by which paragraph 1 is incorporated into paragraph 2. As the panel on sections 301-310 has stated, Article 23.1 of the DSU prescribes that

    "Members have to have recourse to the DSU dispute settlement system to the exclusion of any other system, in particular a system of unilateral enforcement of WTO rights and obligations" 30 (emphasis added).

    15.Moreover, Article 23.2(c) clearly requires that Members shall

    "follow the procedures set forth in Article 22 to determine the level of suspension of concessions or other obligations and obtain DSB authorization in accordance with those procedures before suspending concessions or other obligations under the covered agreements in response to the failure of the Member concerned to implement the recommendations and rulings within that reasonable period of time" (emphasis added).

    The EC submits that the measures complained of in the present case are obviously in breach of this explicit provision concerning the sequence between the procedures under Article 22 of the DSU and the recourse to the suspension of concessions or other obligations.

    16.Moreover, in the present case the United States has not followed the correct procedures under the DSU before resorting to a request for authorisation of the suspension of concessions or other obligations under Article 22.2 and 22.7 of the DSU.

    17.While the United States claims in its first written submission that there are no rules governing the sequence between the procedures under these two provisions, the EC would like to recall the mandatory terms of the first sentence of Article 21.5 of the DSU which read as follows

    "Where there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel" (emphasis added).

    18.The letter of the US Trade Representative Charlene Barshefsky of 13 July 1999, which is contained in Exhibit 1 to the first written submission of the US in the present case, recognises the existence of a disagreement between the parties to the Bananas dispute about the measures taken by the EC in order to implement the recommendations and rulings of the DSB of 27 September 1997. The letter further recognises the applicability of Article 21.5 of the DSU to this situation. Thus, it is not even in dispute that the correct multilateral procedure available in this situation is recourse to the procedures under Article 21.5 of the DSU. The US arguments regarding their decision to "economise" the procedures under Article 21.5 in order to be able to have recourse immediately to Article 22.2 of the DSU are simply specious.

    19.The request for the EC's "agreement to help ensure that an Article 21.5 procedure [...] will be completed before January 1, 1999"31 is just another example of bullying tactics by the United States. As is apparent from the description of the sequence of envents given in the first written submission of the United States, the real objective of the United States was to ensure that the schedule of the dispute settlement procedure would conform to the domestic deadlines under sections 306(b) and 305(a) of the US Trade Act of 1974. In fact, this request by the United States to waive the time frames provided for under the DSU demonstrates once again that the United States could not accept a multilateral procedure that was not fully in line with the timetable established under US domestic law.

    20.As the evolving practice has meanwhile clearly shown, it is perfectly possible to safeguard the complainants' rights with regard to the suspension of concessions or other obligations in cases where the complainant first requests the establishment of a panel under Article 21.5. There are as of today five cases where the correct sequence between Article 21.5 and 22 has been respected: In the Bananas dispute, this has happened in the complaint submitted by Ecuador32; in the dispute on Australia - Measures Affecting Importation of Salmons, the arbitration procedure under Article 22.6 was suspended33 until such time as the procedure under Article 21.5 will be completed34; in the two Aircraft disputes between Canada and Brazil, procedures under Article 21.5 were requested35 before resorting to suspension of concessions; and last, but not least, the United States itself has resorted to Article 21.5 procedures in the Automotive Leather dispute36 with Australia before having recourse to the suspension of concessions. Thus, the mandatory language of Article 21.5 has been respected in all other cases except the dispute between the EC and the US on Bananas.

    21.As is well known to the Panel, in the aftermath of the EC/US dispute on Bananas, an attempt has been made to resolve the diverging positions on the sequence between Article 21.5 and Article 22 procedures by negotiations on an amendment of the DSU. However, the perspective for a negotiated solution is presently anything but certain, given the failure of the Ministerial Conference in Seattle to come to a conclusion on the DSU review. These negotiations can thus not serve as an excuse for the United States to oppose a finding by this panel on the present obligations under the DSU as it stands today and as it stood at the time of the relevant facts.

    22.The EC therefore maintains its position that the measures taken by the United States that are the subject matter of the present dispute were taken in violation of the procedural obligations of the United States under Article 21.5 of the DSU.

    23.Finally, the EC would like to repeat that the application of the measures under dispute also constitutes a violation of the relevant GATT provisions, namely Articles I, II, XI and VIII of GATT 1994. The EC will not elaborate further on this aspect of its complaint unless the panel has questions in this regard.

    Mr. Chairman, members of the Panel,

    With this I would like to conclude. Thank you for your attention.

    Appendix 1.3

    The EC final statement at the First Substantive Meeting

    (17 December 1999)

    Mr. Chairman, distinguished Member of the Panel,

    As we have explained at the outset of this meeting, the European Communities have initiated this procedure with the aim to make the DSB re-affirm, and rule on, some principles of fundamental importance for every system whose functioning is based on law and not on sheer force

    This position is shared by a large majority of WTO Members and the intervening third Parties in this procedure.

    The US position is different: it wants to be judge and jury on the question of implementation and take justice in its own hands without a prior review by an independent and neutral Panel.

    In order to defend the indefensible, the US tries to hold the EC responsible for its own disregard of the multilateral procedures by alleging inexistent attempts by the EC to prevent, or delay, a 21.5 procedure in the Bananas dispute.

    Mr. Chairman, it is still our firm conviction that what was decided by other Bodies of the WTO during the Bananas dispute is not directly relevant for the present case. This case is not limited to a specific trade dispute, it concerns fundamental systemic issues created by the US interpretation of fundamental rules concerning the multilateral functioning of the dispute settlement system, which could arise in other cases. Thus we simply do not wish to follow the US in sterile polemics whose only purpose is to try to re-write history and distract the attention of the Panel.

    However, the EC takes note that the Panel has requested some clarification on the EC's position during the Bananas dispute, in particular with regards to the reasonable period of time and the 21.5 procedure. We will obviously answer these questions in detail but we can announce as of today that the US allegations in this context are entirely incorrect.

    The United States has raised during this meeting for the first time a question concerning the terms of reference of this Panel. It claims that these terms of reference are limited to what they call the 3 March "action".

    As is apparent from EC's request for the establishment of this Panel in document WT/DS165/8 and the 2 annexes thereto, the EC considers that the matter before the Panel pursuant to Article 7 of the DSU is the US measure effective on 3 March 1999 on a list of products, contained in Annex 1, and confirmed for "a subset of the products" in a "reduced list" adopted on 19 April 1999, contained in Annex 2.

    Appendix 1.4

    The EC Responses to Questions of Panel and Parties

    (13 January 2000)

    Questions from the Panel to Both Parties

    1. Is the withholding of the suspension of liquidation (including the bond requirement) a suspension of concessions or other obligations under the DSU?

    Reply

    The EC reads this question as referring to the withholding or suspension of liquidation in the alternative.

    In general, to the extent that it prevents the importation of a product against payment of a customs duty not in excess of the bound tariff rate, such a measure is in breach of the tariff binding and therefore of the GATT 1994.

    In this particular case, the US measure under dispute was taken without any WTO justification or DSB authorisation and thus without respecting the relevant multilateral procedures. It corresponds therefore to an unauthorised suspension (breach of Articles 3, 21, 22 and 23 of the DSU) of concessions (breach of Article II GATT 1994) and other obligations (breach of Articles I, XI and VIII GATT 1994).

    2. What is the impact on trade and traders involved in a suspension of liquidation (including the bond requirement)?

    Reply

    In general, the effect on the trade would depend on the contingent liability imposed on the economic operator by the bonding requirement. For technical reasons, a bonding requirement must identify the precise amount to be guaranteed. Moreover, in order to respect WTO law this amount must be justified by a cost or charge approximate to the cost of services rendered and/or a duty not exceeding the rate bound in the Member's Schedule of tariff concessions.

    3. What is the legal link between the date of assessment of the nullification caused by the EC's non-implementation of the Bananas III recommendations and the need to be able to suspend concessions as of 3 March 1999?

    Reply

    Given that the DSB has found on 6 May 1999 that the revised EC banana regime was inconsistent with certain WTO obligations of the EC, the only legal link that can be established between the revised EC banana regime and the US measure effective on 3 March 1999 is the US domestic legislation under Sections 301-310 of the US Trade Act of 1974, as amended37.

    4. Is a new measure (an implementing measure) presumed to be compatible or incompatible with WTO obligations after the reasonable period of time? Which party bears the burden of proof after the reasonable period of time to prove consistency (or lack thereof) with WTO provisions? Is it correct to state that the losing party becomes liable as of the expiry of the reasonable period of time? And liable for what?

    Reply

    The EC fails to see how the legal status under the WTO of a new measure could be influenced or determined by the status of a measure which was previously in place and that has been withdrawn in accordance with Article 3.7 of the DSU and the recommendations and rulings of the DSB.

    For that reason, no presumption of inconsistency is expressly provided for in the DSU. On the contrary, as was confirmed recently by the Appellate Body report on "Chile - Taxes on Alcoholic Beverages"38 at paragraph 74: "Members of the WTO should not be assumed, in any way, to have continued previous protection or discrimination through the adoption of a new measure. This would come close to a presumption of bad faith" (emphasis in the original).

    Consequently, the burden of proof follows the normal rules as indicated by the Appellate Body in its report on "United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India"39 and remains with the Member alleging the inconsistency of a measure of another Member.

    The very notions of "losing" party and "liability at the end of the reasonable period of time" suggested by the US is entirely inaccurate in this context. On the one hand, if a new measure is adopted by the end of the reasonable period of time, the obligation on the respondent in the previous dispute settlement procedure to withdraw its original inconsistent measure has been fulfilled. Thus, even referring to the "losing" party in such a case is inappropriate. On the other hand, the notion of "liability" is simply out of context in a procedure covered by the DSU, where the notions of WTO-consistency of a given measure and of the equivalent level of reciprocal concessions provide the appropriate reference.

    5. Who has the responsibility to raise an Article 21.5 case? When should such a request under Article 21.5 take place?

    Reply

    Article 21.5 does not specifically address the issue of whose responsibility it is to raise a procedure under that provision but declares "these dispute settlement procedures" applicable. Except in the case of the recourse of the EC to Article 21.5 in the Bananas dispute (that will be discussed in response to question 7), all other cases mentioned in the EC's oral statement on 16 December 1999 at paragraph 20 were submitted by the Member alleging the inconsistency.

    In case of disagreement as to the consistency with a covered agreement of measures taken to comply with recommendations and rulings of the DSB, an Article 21.5 procedure cannot be requested before the time of the adoption of the implementing measure. Of course, in case of a disagreement on the existence of measures taken to comply with recommendations and rulings of the DSB it is not possible to start a 21.5 procedure before the end of the reasonable period of time.

    The DSU does not provide for any statute of limitation or other outer time limit with regard to requests for a procedure under Article 21.5.

    6. What is the consequence of failing to raise an Article 21.5 claim before the end of the reasonable period? If it is not done during this period does the right to an Article 21.5 assessment lapse?

    Reply

    None.

    No. See the EC's response to the previous question.

    7. Assuming the US is correct in stating that an Article 21.5 panel should be triggered (by either party) within the reasonable period of time, what is the consequence if this 21.5 panel is never requested or not established? Does the absence of an Article 21.5 assessment result in a presumption that the new measure is compatible or that it is incompatible with WTO obligations? Does the absence of an Article 21.5 panel exclude recourse to Articles 22.6-7?

    Reply

    The EC considers the US assumption to be entirely incorrect and thus does not wish to elaborate further on what it considers an incorrect interpretation of the DSU.

    Consistently with the reply to question 4 the EC submits that in the absence of a decision by the DSB declaring the inconsistency of an implementing measure with a covered agreement, the measure at issue must indeed be presumed compatible. As the EC explained during the procedures before the panel on European Communities - Regime for the Importation, Sale and Distribution of Bananas - Recourse to Article 21.5 by the European Communities, "a presumption of inconsistency would gravely affect the security and predictability of the international trading system because of the ensuing uncertainty".40

    The absence of an Article 21.5 ruling or recommendation by the DSB excludes recourse to Article 22.6 and 22.7 of the DSU in all cases except where there is no disagreement as to the existence or the consistency of measures taken to comply with recommendations and rulings of the DSB. This latter situation occurred in the Hormones dispute between the US, Canada and the EC.

    8. Who determines whether a new measure nullifies WTO benefits?

    Reply

    In case of disagreement as to the consistency with a covered agreement of measures taken to comply with recommendations and rulings of the DSB, the DSB determines as a result of a procedure under Article 21.5 of the DSU whether there is nullification or impairment of the complainant's benefits under the WTO agreement resulting from the new measure.

    In the absence of such disagreement, as is illustrated by the Hormones case, it is possible to have recourse to Arbitration that will determine the level of the nullification or impairment.

    9. Is there an implicit assessment of compatibility of any measure that is the object of an Article 22.6-7 Arbitration in view of the Arbitrator mandate to assess whether the level of suspension is equivalent to the level of nullification of benefits?

    Reply

    The terms of reference of the arbitrator are laid down in Article 22.6 and 22.7 of the DSU. These terms of reference do not extend to findings with regard to the consistency or otherwise of an implementing measure with a covered agreement. In case of disagreement on the consistency of an implementing measure, Article 21.5 of the DSU requires that "such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel". An implicit assessment by the arbitrator under Article 22.6 of the compatibility of a measure with a covered agreement would usurp the task of a panel under Article 21.5 of the DSU and thus, if an arbitrator were to make such an assessment, the arbitrator would act ultra vires.

    10. Please discuss the practice of WTO Members in their use of Articles 21.5 and 22 procedures

    Reply

    The EC discussed the practice of WTO Members when having recourse to Articles 21.5 and 22 already in para. 20 of its oral statement during the first substantive meeting of the parties with the Panel on 16 December 1999.

    Questions from the Panel to the EC

    11. Please comment on the US allegations that the EC blocked an Article 21.5 action before the end of the reasonable period of time.

    12. If the EC was of the opinion that an Article 21.5 procedure must precede an Article 22 authorization, why did the EC repeatedly refuse to participate in the US Article 21.5 requested before the reasonable period of time?

    Common reply to questions 11 and 12

    It is incorrect that the EC "blocked an Article 21.5 action before the end of the reasonable period of time" and that it "repeatedly refuse[d] to participate in the US Article 21.5 requested before the reasonable period of time" as alleged by the United States. In fact, under Article 21.5 of the DSU, "[w]here there is disagreement as to the existence or consistency with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures" (emphasis added). Thus, Article 6.1 of the DSU is applicable with regard to the procedure to be followed for the establishment of a panel under Article 21.5 of the DSU. That means that the party complained against is not in a position to "block" the establishment of a panel because the decision is taken by the DSB under the "reversed consensus" rule nor can the party complained against refuse to participate without seriously jeopardising its legal position.

    The reference to "these dispute settlement procedures" is of course also relevant with regard to other elements of the procedure to be followed, including consultations under Article 4 of the DSU. The EC therefore expressed the view that such consultations must precede the establishment of a panel under Article 21.5 of the DSU.41 It is surprising to note in this context that, on the one hand, the United States claimed that the EC's position on the need to hold consultations in the framework of an Article 21.5 procedure leads to "unnecessary, hollow procedural steps"42, while the United States is complaining in the present dispute, on the other hand, that the EC was unwilling to enter into consultations during the reasonable period of time43. This latter complaint is factually simply incorrect, as demonstrated by the statements made by its representatives in the DSB meetings at the relevant time44.

    The EC believes that these statements clearly demonstrate that the EC did not "block" the establishment of a panel under Article 21.5 of the DSU, nor did the EC claim that such a panel could not be established during the reasonable period of time. Rather, the arguments turned around the need to hold consultations under Article 4 of the DSU before resorting to the establishment of a panel under Article 21.5 of the DSU and were also related to the question whether the dispute settlement procedures under Article 21.5 of the DSU could be initiated before the relevant implementing measures had been adopted (quod non).

    As the events at the end of 1998 and at the beginning of 1999 have shown, the EC tried everything it could in order to convince the United States to engage in Article 21.5 procedures, going as far as taking the unprecedented step of requesting a panel under Art. 21.5 of the DSU at its own initiative45. Thus, the record shows that it was not the EC that "blocked" an Article 21.5 panel procedure nor that it refused to participate in such a procedure. Quite on the contrary, it was the United States that had decided to "skip" the procedure under Article 21.5 of the DSU, because the United States wanted to invoke Article 22 of the DSU as soon as the reasonable period of time had ended in order to be able to live up to the requirements of the schedule foreseen under its domestic legislation under sections 306(b) and 305(a) of the Trade Act of 1974, as amended.

    Question from the US to the EC

    In paragraph 16(d) of the EC's first written submission and paragraph 6(e) of its oral statement, the EC raises several arguments with respect to its claim that the March 3rd action imposed an "other charge" inconsistent with Articles II:2(a) and VIII:1 of the GATT 1994.

    a)Is it the EC's position that this "other charge" arises only in connection with the March 3rd action?

    b)Could the EC confirm that it does not consider surety systems in general, which are contemplated in Article 13 of the Customs Valuation Agreement and maintained by numerous Members (including the EC), as imposing an "other charge"?

    c)If so, how does the EC differentiate the "other charge" it claims is associate with the March 3rd surety requirements from these surety requirements in general?

    Reply to the general question by the United States

    The question refers to paragraph 16(d) of the EC's first written submission which reads in relevant part:

    "Articles II.2(a) and VIII.1 of the GATT 1994, insofar as the requirement to submit or commit bonds beyond the bound rate duty upon importation of selected EC products results in increased costs for importers that constitute 'other charges' imposed in connection with importation that are prohibited."

    As is evident from the context, the reference to Article II.2(a) should in fact read II.2(c).

    It is undisputed that the increased charges and costs for importers, because they are calculated on the basis of a duty in excess of the bound rate without any multilateral authorisation or justification, are not limited in amount to the approximate costs in administration in accordance with Article VIII.1(a) and II.2(c) and thus also violate Article II.1(b) of the GATT 199446.

    Reply to sub-question (a)

    It appears that this question is based on an artificial distinction between different "actions", with which the EC does not agree. The EC has demonstrated that the increased costs and charges resulting from the US measure are in violation of Articles II and VIII of the GATT.

    Reply to sub-questions (b) and (c)

    The EC does not see how the issue of customs valuation is at all relevant in the context of the present case. The EC does not believe that Article 13 of the Customs Valuation Agreement is applicable to the measures under dispute in the present procedure.

    Moreover, as the Panel on "EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain Processed Fruits and Vegetables" (referred to in footnote 9 to this document) clearly indicated, the increased costs and charges resulting from the imposition of a security imposed in addition to the ordinary customs duties exceed the bound rate and are therefore not covered by the requirements of Article II.1(b) GATT, but by Article II.2(c) GATT to the extent that the amount of the increased charge or cost is limited to the approximate costs of administration in accordance with Article VIII.1(a) GATT.

    See therefore what is already mentioned in the reply to the general question.

    Appendix 1.5

    Rebuttal Submission of the European Communities

    (21 January 2000)

    I.INTRODUCTION

    1.The European Communities believe that this second submission serves mainly two functions:

    -餿o recall the main claims and arguments of the EC in this case and

    -餿o rebut certain statements and affirmations by the US which were expressed during the first substantive meeting with the Panel and the US replies to the questions from the Panel and the EC.

    Of course, the other points of law and procedure which were advanced by the EC during the first stages of this dispute settlement procedure (including the answers to the questions from the Panel and from the United States) should also be considered entirely confirmed here. This is true in particular for the EC's claims and arguments concerning the violation of Article I and XI of the GATT 1994 and Articles 3 and 23 of the DSU by the US measure.

    2.As a brief preliminary point, the EC also submits that the statistical data provided by the US in its Exhibit 5 do not refute Deputy USTR P. Scher's affirmation47 that "we retaliated by effectively stopping trade as of March 3 in response to the harm caused by the EC's WTO-inconsistent banana regime".

    On the one hand, statistical data concerning March 1999 and April 1999 cover periods that precede and follow the entry into force of the 3 March measure and of its 19 April confirmation on a reduced list.

    On the other hand, these statistics show for many products a dramatic decrease in imports as from March 1999. This provides confirmation of the point made by the EC that discriminatory suspensions of concessions and other obligations were in force as from 3 March 1999.

    Finally, the intention of the US authorities on 3 March 1999 was explicit and is irrefutably demonstrated by their public statements, and the measure made effective as of 3 March 1999 violates in itself the US obligations under the WTO regardless of whether the facts of the trade eventually correspond to the US authorities' initial expectations.

    II.THE SCOPE OF THE PRESENT DISPUTE

    3.The US has raised in its answers to the questions from the Panel and from the EC three objections concerning the scope of the present panel procedure. They will be examined in the following sub-chapters.

    B.THE US MEASURE EFFECTIVE ON 3 MARCH 1999 AND ITS CONFIRMATION ON 19 APRIL 1999.

    4.As the EC pointed out in its request for the establishment of this Panel, the measure under dispute "impose[s] a contingent liability for 100% duties" and "has deprived EC imports into the US of the products in question of the right to a duty not in excess of the rate bound in the US Schedule". This request also contains, in the Annex, the product lists published by the United States on 3 March and on 19 April 1999, which shows that the EC considers these as being part of one and the same measure. The United States never raised any objection against this request, neither during the DSB meeting where the request was adopted nor at any other time.

    5.The issue of the potential duty liability is intimately linked to the question of the scope of the present dispute.

    6.Contrary to the position expressed by the United States before the Panel, the EC is of the view that the measure at issue in the present dispute is not limited to an increase in surety deposit requirements, but also includes by necessity an increase of duty liability for imports of the products listed in the instructions addressed to US customs services on 3 March 1999 under the revealing title of "European Sanctions"48.

    In the view of the EC, the increased duty liability was operated on that date and not only on a later date, as the United States would have it now. In the view of the EC, all that happened on 19 April was that the increased duty liability was simply confirmed for most of the listed products, while some products were de-listed at that time49. Thus, the "contingent" duty liability was changed into a "final" one (admittedly with some exceptions)50.

    7.There is no difference, neither in economic terms nor under WTO law, whether a duty beyond the bound rate is called a "potential" or "contingent" duty or a "final" or "definitive" one. What counts is the expected trade effect of the measure. That trade effect is exactly the same, whether the duty is "potential" or "final", not least because the customs procedures of the United States do not allow importers to obtain immediate confirmation of the precise amount of the duty at the time of physical entry of the product.

    Moreover, there is no difference, neither in economic terms nor under US domestic law, whether a surety deposit in excess of the approximate costs of the services rendered is "contingent" or "potential" or "final" or "definitive". As the US recognises in its answers to questions 22 and 23 from the Panel, the US customs does not reimburse "any fees which private sureties may have charged US importers" (or, for that matter, EC exporters) or do not pay any interest on an "additional bond requirement or an increased bond amount".

    8.The technicalities of how the United States enforced the increased duty liability on or after 3 March 1999 are of limited relevance for the present dispute. The issues concerned with the ancillary nature of the surety deposit and with the date on which a customs debt is incurred are of much greater importance in the context of the present dispute.

    1.The ancillary nature of the surety deposit

    9.It is clear that customs surety deposits serve to ensure the payment of the duties and fees owed by the importer. In that sense, customs surety deposits are ancillary to the (anticipated) amounts of customs duties and fees the payments of which they serve to guarantee. The amount of any surety deposit is determined by the anticipated duty liability and entirely depends on it.

    10.Thus, a self-standing surety deposit could not be justified under WTO law. In fact, it would amount to "a duty or charge of any kind imposed on or in connection with the importation in excess of" the bound rates, which is inconsistent with Articles II and VIII of the GATT 199451.

    11.The United States accepts this fundamental point of principle. As the US pointed out in its oral statement at the first substantive hearing of the Panel (paragraph 4):

    "the United States Customs Service allows [...] release of merchandise into the United States so long as the importer has provided [...] assurances in the form of a cash deposit or bond that it will pay the potential duties and fees owed" (emphasis added).

    2.The date on which a customs debt is incurred

    12.Under WTO law, the obligation not to subject imported products to duties and other charges in excess of the bound rates under the relevant Schedule of tariff concessions relates to the time of importation52.

    That means that, in a situation where the duty liability varies over time, the relevant date on which the amount of the duty liability depends is the date of importation of the product in the customs territory of the importing WTO Member, not any other date (in EC customs terminology, this is the date on which the "customs debt is incurred").

    13.Thus, assuming that the customs duty for a given product decreases on 1 January of a given year as the result, for example, of a commitment contained in the Schedule of the importing WTO Member, the duty liability for a like product imported on 30 December of the preceding year would not be affected by this decrease. The same is true where the customs duty increases over time53.

    14.There can thus not be a duty which is at the level of X at the time of entry of the product into the customs territory of a WTO Member that decreases to X-1 or that increases to X+1 for the already imported product at some later time.

    The argument that the duty liability may change after the entry of the product into the customs territory to which the Schedule relates is simply not in line with existing WTO law (nor would it be in line with current United States customs law and practice, as the US has recognised before this Panel).

    It is obvious that, were the customs law of a WTO Member different on this point, this would justify a complaint based on the violation by that WTO Member of Article II of the GATT 1994.

    3.The application of the above-mentioned principles to the US measure

    15.It follows that the surety deposit increase for selected products on 3 March 1999 could not have any justification other than the increase of the duty liability that was operated also on 3 March 1999 with immediate effect, and not at any later time. Only in this way could the United States require increased surety deposits from importers and justify the confirmation of the increase in duty liability on 19 April to be effective as of 3 March. Only in this way could the US collect increased 100% duties on imports of listed products as from 3 March 1999.

    For the reasons already explained, a duty increase operated on 19 April could not have had any effect on products imported into the customs territory of the United States at any earlier date.

    16.The EC reiterates that both the increase in duty liability, whether potential or definitive, and the corresponding increase in the requirements concerning surety deposits with US customs are inconsistent with the United States' obligations under Articles II.1 (b), II.2 (c) and VIII.1 (a) of the GATT 1994. This is corroborated, in the view of the EC, by the adopted panel report on EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain Processed Fruits and Vegetables54.

    17.These claims are explicitly part of the "matter" subject to the scrutiny of this Panel pursuant to Article 7 of the DSU as per the request for the establishment of this Panel55.

    The measure taken by the US on 3 March 1999 contained already both these elements and was merely confirmed on 19 April 1999 (apart from the partial withdrawal, which was operated on that date). There is thus no question of two different measures taken at different dates (except with regard to the partial withdrawal of the 3 March measure on 19 April, which is not under dispute).

    18.The EC therefore fundamentally disagrees with the mischaracterization of the measure under dispute contained in the US submissions to date. It also opposes any attempt by the US to the effect of reducing the scope of the present dispute.

    B.THE TERMS OF REFERENCE OF THIS PANEL EXPLICITLY COVER THE MATTER THAT A MEMBER IS OBLIGED TO PURSUE A PANEL PROCEDURE UNDER ARTICLE 21.5 OF THE DSU BEFORE RESORTING TO THE SUSPENSION OF CONCESSIONS OR OTHER OBLIGATIONS UNDER ARTICLE 22 OF THE DSU IN CASE OF DISAGREEMENT ON THE CONSISTENCY WITH A COVERED AGREEMENT OF MEASURES TAKEN TO IMPLEMENT A RECOMMENDATION OR RULING OF THE DSB

    19.The US measure was adopted in the context of an on-going arbitration procedure under Article 22 of the DSU. The EC will summarise below the compelling reasons that justify its claim that the US measure breached Article 22 of the DSU.

    However, the EC claims also that the US measure breached Article 21.5 of the DSU.

    This claim is explicitly part of the EC's request for the establishment of this Panel contained in the WTO doc. WT/DS165/8 of 11 May 1999. The latter claim is different from the former, since it has more far-reaching implications, as the EC will show below.

    20.In the context of the present dispute, the core of the EC's claims is the fact that the US took justice in its own hands and unilaterally decided that the revised EC Banana regime that entered into force on 1 January 1999 breached the EC's WTO obligations.

    It must be recalled here that the revised Banana regime repealed and replaced the previous EC regime that had been declared inconsistent with the EC's obligations under the WTO in an adopted panel and Appellate Body report.

    The US request for suspension of concessions or other obligations pursuant to Article 22 of the DSU was based on a unilateral determination that the revised EC Banana regime was inconsistent with the EC's WTO obligations56. The US measure on 3 March 1999, as confirmed on 19 April 1999, was directly dependent upon this US unilateral determination of non-compliance which was made by the US without an objective verification by a Panel, in application of the provisions of Article 21.5 of the DSU.

    21.The EC will discuss further (see chapter No. 4 below) the substantive legal reasons on which its claims on this issue are founded.

    However, as a preliminary matter concerning the terms of reference of this Panel, the EC would like to repeat that the issue of the relationship between an arbitration procedure under Article 22 of the DSU and the necessary prior findings of inconsistency under Article 21.5 of the DSU is central in order to correctly resolve the dispute at issue and thus cannot be avoided.

    22.Not only should the US not have adopted its 3 March 1999 measure: there was also no justification to confirm it with a reduced list on 19 April 1999. As will be shown below, the WTO-inconsistency of the 3 March measure was not "healed", or in any other way "undone", by the authorisation of the DSB of 19 April 1999 and even less so by the US confirmation of its 3 March measure on that same date.

    In the EC's view, the US measure is still inconsistent with the United States' obligations under Articles 21.5, 22 and 23 of the DSU (and several substantive GATT 1994 obligations) and must be withdrawn.

    23.The US claims now that "[L]ike the Section 301 panel, this Panel need not reach the issue of the relationship between Articles 21.5 and 22"57.

    24.The EC responds that, in our view, the Panel has no choice: in order to correctly perform its tasks as described in Article 11 of the DSU, the relationship between Articles 21.5 and 22 - in the light of Article 23 of the DSU, as interpreted by the Section 301 panel report - has to be addressed.

    25.The panel report on Section 301 circulated on 22 December 1999 states the following:

    "Whatever the outcome of other pending panel proceedings, on which we have no view, the fact that the USTR did make a determination of non-implementation before the completion of Article 21.5 procedures in Bananas III, even if it turns out eventually that this was illegal, is not, in our view, an act of bad faith."

    26.As is apparent from this quotation, the panel on Section 301 was convinced that this issue was sub judice at the time it took its final decision. The EC does not believe it appropriate or necessary to debate here the correctness of this appreciation of the Section 301 panel on an issue on which it has itself acknowledged it has "no views". The important point here is that the EC, as a WTO Member, has a right under the covered agreements to have this fundamental issue of law resolved as it stands within the only correct WTO procedure, i.e. the dispute settlement procedures.

    27.A debate de lege ferenda cannot and must not have any influence on the duties to be performed by a Panel under Articles 7 and 11 of the DSU in a specific DS procedure. Rather, a consistent practice by the WTO membership can have an influence on the interpretation of existing and applicable WTO provisions such as Articles 21.5 and 22 of the DSU (see, again, chapter No. 4 below).

    28.The EC can understand that a panel, such as the Section 301 panel, may decide that another on-going panel is a better forum to deal with the interpretation of certain WTO provisions, even if those provisions were part of its terms of reference. But it is not ready to accept the line of action suggested by the US according to which, notwithstanding the explicit terms of reference of a panel established by the DSB, no panel procedure is the correct forum where existing and fully applicable rules of the DSU can be interpreted and applied.

    29.The EC urges therefore the Panel to reject this unjustified request by the US that, if granted, would amount to a denial of justice.

    C.THIS PANEL'S TERMS OF REFERENCE INCLUDE THE QUESTION AS TO WHICH MEMBER HAS TO BEAR THE BURDEN OF PROOF THAT A MEASURE TAKEN BY A MEMBER IN ORDER TO COMPLY WITH EARLIER RECOMMENDATIONS AND RULINGS OF THE DSB IS INCOMPATIBLE WITH THE WTO OBLIGATIONS OF THAT MEMBER

    30.As was mentioned in the preceding sub-chapter, the core of the EC's claims is the fact that the US took justice in its own hands and unilaterally decided that the revised EC Banana regime that entered into force on 1 January 1999 breached the EC's WTO obligations (after having repealed and replaced the previous EC regime that a Panel report adopted by the DSB had found inconsistent with the EC's obligations under the WTO).

    The US request for suspension of concessions or other obligations pursuant to Article 22 of the DSU was based on such unilateral determination58. The US measure on 3 March 1999, as confirmed on 19 April 1999, was directly dependent upon the US unilateral determination of non-compliance taken by the US without an objective verification by a Panel, in application of the provisions of Article 21.5 of the DSU.

    31.In the EC's view, when dealing with the issue of the interpretation and correct application of Articles 21.5 and 22 of the DSU, the Panel will also have to address another issue which is equally important (and logically and legally connected), namely the question as to which Member has to bear the burden of proof that a new measure adopted by a Member in order to comply with earlier recommendations and rulings of the DSB is incompatible with WTO obligations of that Member.

    32.As the EC has already indicated in its reply to the Panel's question No 4 and as will be discussed further in chapter No. 5 of this submission, the burden of proof follows the normal rules as indicated by the Appellate Body in its report on "United States - Measures Affecting Imports of Woven Wool Shirts and Blouses from India"59 and remains with the Member alleging the inconsistency of a measure of another Member. The US has never brought such evidence before a Panel with respect to the revised EC banana regime.

    33.The EC therefore urges the Panel to reject the unjustified attempt by the US to reduce the scope of the present procedure by suggesting that "it is not necessary or appropriate to reach in the context of this dispute a conclusion concerning the burden of proof following the reasonable period"60.

    III.THE VIOLATION OF THE PROCEDURAL REQUIREMENTS UNDER ARTICLES 22 AND 23 OF THE DSU

    A.UNDER NO CIRCUMSTANCE IS A WTO MEMBER ALLOWED TO ADOPT AND/OR IMPLEMENT SUSPENSION OF CONCESSIONS OR OTHER OBLIGATIONS AGAINST ANOTHER MEMBER BEFORE THE COMPLETION OF AN ON-GOING ARBITRATION PROCEDURE AND ITS AUTHORISATION BY THE DSB

    34.The increase in (potential) duty liability and in surety deposit requirements for the listed products as of 3 March 1999 is clearly in breach of the United States' obligation under Article 22.6, last sentence, of the DSU not to resort to the suspension of concessions or other obligations before the completion of the arbitration procedure and the obligation pursuant to Article 23.2(c) of the DSU to await the authorisation by the DSB before taking such action.

    35.On the basis of the panel report on EEC - Programme of Minimum Import Prices, Licences and Surety Deposits for Certain Processed Fruits and Vegetables, the increase in surety deposit requirements for duties exceeding the bound duty rates alone is already in breach of Articles II.1 (b), II.2 (c) and VIII.1 of the GATT 1994.

    36.The increase in duty liability is even more clearly in breach of Article II.1 (b) of the GATT 1994.

    37.Actions of this kind, when taken on a discriminatory basis, fall under the definition of "suspension of concessions or other obligations" as contained in Articles 22.6, last sentence, and 23.2(c) of the DSU. This is a broad concept encompassing discriminatory actions taken as a reaction to the breach of WTO obligations by another Member.

    38.That the element of discrimination is an integral part of the concept of suspension of concessions and other obligations clearly appears in Article 3.7, last sentence, of the DSU which reads as follows:

    "The last resort which this Understanding provides to the Member invoking the dispute settlement procedures is the possibility of suspending the application of concessions or other obligations under the covered agreements on a discriminatory basis vis-?vis the other Member, subject to authorization by the DSB of such measures" (emphasis added).

    39.The US measure on 3 March 1999 corresponds perfectly to the definition of a discriminatory suspension of concessions or other obligations61. It was adopted against selected imports from the EC before the arbitration procedure had been completed and obviously when no DSB authorisation had been granted. The disregard by the US of its WTO obligations went as far as adopting the suspension of concessions and other obligations the day after the Arbitrator had issued the following "initial decision"62:

    "On 2 March 1999, the Chairman of the Arbitrators informed the Chairman of the DSB as follows (WT/DS27/48):

    "I write to inform you that the Arbitrators have today issued an initial decision to the parties in which we rule on matters related to the scope of our work and to certain aspects of the methodology and calculations of the United States for determining the level of suspension of concessions. In addition, we have requested the parties to supply us with additional information. This information should enable us to take a final view on the level of nullification or impairment based on the WTO inconsistency, if any, of the revised EC banana regime, and, if relevant, to determine the level of suspension of concessions or other obligations equivalent to the level of such nullification or impairment. Following our receipt and analysis of that information, we expect to be in a position to issue a final decision in this matter soon thereafter."

    40.The EC reiterates that the US 3 March 1999 measure breached Articles 22.6, last sentence, and 23.2(c) of the DSU. There can be no excuse or justification under the covered agreements for such a breach. The only (self-admitted63) reason for pursuing such WTO-inconsistent route was that the US decided to grant priority to its domestic law over its WTO obligations, in particular the requirements of Sections 301-310.

    B.IN ANY CASE, ARTICLE 22.6 DOES NOT WARRANT THE WTO-COMPATIBILITY OF THE ADOPTION OF A SUSPENSION OF CONCESSIONS OR OTHER OBLIGATIONS IN PRESENCE OF PROCEDURAL DEFICIENCIES

    41.As was indicated in the previous sub-chapter, actions such as the US measure of suspension of concessions and other obligations, when taken on a discriminatory basis, fall under the definition of "suspension of concessions or other obligations" as contained in Articles 22.6, last sentence, and 23.2(c) of the DSU.

    The EC submits that these actions can be adopted and implemented only on the ground of a breach of WTO obligations by another WTO Member positively established by the findings contained in a panel or Appellate Body report adopted by the DSB.

    42.Article 22.6 begins with the following words:

    "When the situation described in paragraph 2 occurs, (& )"

    Article 22.2 illustrates the "situation" as follows:

    "If the Member concerned fails to bring the measure found to be inconsistent with a covered agreement into compliance therewith or otherwise comply with the recommendations and rulings within the reasonable period of time determined pursuant to paragraph 3 of Article 21 (& )".

    In addition, Article 23 of the DSU clarifies that:

    "When Members seek the redress of a violation of obligations or other nullification or impairment of benefits under the covered agreements (& )

    [I]n such cases, Members shall

    (a) not make a determination to the effect that a violation has occurred, that benefits have been nullified or impaired (& ) except through recourse to dispute settlement in accordance with the rules and procedures of this Understanding (& )".

    Finally, Article 21.5 of the DSU provides that:

    "Where there is disagreement as to (& ) the conformity with a covered agreement of measures taken to comply with the recommendations and rulings such dispute shall be decided through recourse to these dispute settlement procedures, including wherever possible resort to the original panel. The panel shall circulate its report within 90 days after the date of referral of the matter to it (& )".

    43.In the present case, the revised EC banana regime that entered into force on 1 January 1999 was never determined to be incompatible with the EC's WTO obligations in a dispute settlement procedure initiated by the US.

    44.The United States attempts to justify its measure effective on 3 March 1999 and confirmed on 19 April 1999 with the claim that the "liability" of a WTO Member for its non-compliance with recommendations and rulings of the DSB "accrues"64 on the day which follows the end of the "reasonable period of time" referred to in Article 21.3 of the DSU.

    45.The EC does not dispute the fact that the end of the reasonable period of time is relevant when examining whether the WTO Member to whom the recommendations and rulings are addressed has implemented them. The EC challenges however the empty notion of "liability" that, it submits, makes no sense in the WTO context. Rather, the examination of the DSU shows a radically different picture.

    46.According to Article 3.7 of the DSU, an initial alternative is open:

    -餰ither a Member withdraws the measure which was found to be inconsistent with its WTO obligations or

    -餴t does not.

    47.In the case of non-withdrawal, at the latest at the end of the reasonable period of time, the Member concerned will not have implemented the recommendations and rulings of the DSB at the required time. It will thus have to accept to offer compensation or face the prospect of an authorisation by the DSB for a suspension of concessions or other obligations by the complaining Member(s).

    This situation occurred in the "EC-Hormones" dispute, where the EC decided for public health reasons not to withdraw the measures that had been found inconsistent with its WTO obligations65. It consequently offered compensation. The US rejected the offer and thus the EC faced suspension of concessions or other obligations, after an arbitrator had determined the level of such suspension with respect to the nullification and impairment caused by the EC's inconsistent measure, which was still in place.

    48.In case of withdrawal of the measure, as was the case for the EC banana regime, according to Article 3.7 of the DSU, the Member concerned has achieved the "first objective of the dispute settlement mechanism [that] is usually to secure the withdrawal of the measures concerned if these are found to be inconsistent with the provisions of any of the covered agreements".

    49.However, if the measure that was withdrawn is replaced by another measure, as was also the case for the revised EC banana regime, then the issue can be raised as to whether this new measure is compatible w

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