In EC. Asbestos, the Panel decided to seek the opinion of individual scientific experts, rather than establishing an expert review group. The European Communities objected, arguing among other things that if the measure in question should be considered as coming under the TBT Agreement, Article 14.2 of the TBT Agreement would mean that a technical expert group would have to be consulted for any scientific or technical question. The European Communities argued that, pursuant to Article 1.2 of the Understanding, Article 14.2 of the TBT Agreement would prevail over the provisions in Article 13 of the DSU. The Panel responded that:
In EC. Commercial Vessels, the Panel examined a bilateral agreement between the European Communities and Korea, referred to as the "Agreed Minutes". The Panel noted the Agreed Minutes are not a "covered agreement" within the meaning of Articles 1 and 2 of the DSU. Citing the passage from the Appellate Body Report in EC – Poultry reproduced above, the Panel emphasized that: "[I]ts review of the text of the Agreed Minutes only serves the purpose of enabling it to decide a factual issue on which the parties disagree and that it is not interpreting the Agreed Minutes in order to determine the rights and obligations of the parties under that bilateral agreement."6
In EC. Approval and Marketing of Biotech Products, the Panel decided to consult with individual scientific experts to obtain their advice on certain scientific and/or technical issues raised by the Parties' submissions and for which the Panel might benefit from expert advice.3
In EC. Fasteners (China), the Panel further considered the principle regarding non- consideration of injury caused by non-dumped imports, in relation to imports of producers/exporters not included in the sample used for the dumping determination and not separately granted individual examination. In the investigation at issue, the EU determined that all sampled producers were dumping and calculated a dumping margin for these non- sampled/unexamined producers on the basis of the dumping margins determined for the sampled producers. The two producers found not to be dumping were not included in the sample; because all producers in the sample were found to be dumping, the Panel considered that the EU authorities were entitled to rely on that evidence and treat all imports from non- sampled/unexamined producers as dumped for purposes of its injury determination; the Panel rejected China's claim under Articles 3.1 and 3.
In EC. Poultry, Brazil argued that the European Communities had violated the prohibition of trade distortion contained in Articles 1.2 and 3.2 of the Licensing Agreement. The Panel rejected Brazil's claim. On appeal, Brazil argued that the Panel had failed to address or examine properly certain evidence, including evidence concerning Brazil's falling share of the poultry market in the European Communities, and had not examined whether this falling market share was caused by the introduction of the European Communities licensing procedures for the tariff-rate quota for frozen poultry meat. The Appellate Body upheld the Panel. It noted that the EC Regulation at issue gave Brazil a 45 per cent share of the total tariff-rate quota (the same as Brazil's share of exports of the product to the EC during the preceding three years); because the licences were fully utilized, Brazil's share of the tariff-rate quota remained at 45 per cent and Brazil's volume of exports of the product to the EC had risen since imposition of the tariff rate quota.15 The Appellate Body found that Brazil had failed to establish a causal link between the decline in market share and other indicators, on the one hand, and the licensing requirements at issue, on the other: "Brazil has not, in our view, clearly explained, either before the Panel or before us, how the licensing procedure caused the decline in market share. Brazil has not offered any persuasive evidence that its falling market share could, in this particular case – with a constant percentage share of the tariff-rate quota, full utilization of the tariff-rate quota and a growing total volume of exports – be viewed as constituting trade distortion attributable to the licensing procedure. In other words, Brazil has not proven a violation of the prohibition of trade distortion in Articles 1.2 and 3.2 of the Licensing Agreement by the European Communities. Brazil argues that the Panel did not consider a number of other arguments in its examination of the existence of trade distortion: that licences have been apportioned in non-economic quantities; that there have been frequent changes to the licensing rules; that licence entitlement has been based on export performance; and that there has been speculation in licences. These arguments, however, do not address the problem of establishing a causal relationship between imposition of the EC licensing procedure and the claimed trade distortion. Even if conceded arguendo, these arguments do not p...
In EC. Trademarks and Geographical Indications (US), the Panel found that the European Communities was not obliged to ensure that one particular measure implemented Article 22.2: "In accordance with Article 1.1, the European Communities is free to determine the appropriate method of implementing the provisions of the Agreement within its own legal system and practice. It is not obliged to ensure that this particular Regulation implements Article 22.2 where it has other measures that do so."6
In EC. Fasteners (China), the Panel considered a claim regarding inclusion of two Chinese producers for which zero margins were calculated in the volume of imports considered in the injury analysis; the EU argued that the impact of this inclusion was small. The Panel noted that "the text of the AD Agreement is perfectly clear in this regard … the consideration of 'dumped imports' for purposes of making an injury determination consistent with Articles 3.1, 3.2, 3.4 and 3.5 of the AD Agreement entails the consideration of only those imports for which a margin of dumping greater than de minimis is established in the course of the investigation."97 The Panel further noted that the EU knew or should have known that the information it was considering in examining the volume of dumped imports included imports that were not dumped, and found that "it is not appropriate for us to conclude that the investigating authority could have made an affirmative determination of injury in the absence of consideration of the volume of imports properly treated as dumped. Such an analysis would effectively constitute a de novo review of the evidence, which we are not to undertake under the applicable standard of review."98 The Panel concluded that the EU acted inconsistently with Articles 3.1 and 3.2 in considering the volume of dumped imports.99
In EC. Trademarks and Geographical Indications, the Panel referred to the definition of "intellectual property" in Article 1.2 when interpreting that term as used in Article 3.1.9
In EC. Poultry, Brazil argued on appeal that the Panel had erred in restricting Brazil's "comprehensive claim in relation to a violation of the general principle of transparency underlying the Licensing Agreement" to an analysis of Article 3.5(a) of the Licensing Agreement. Brazil's argument was that "the administration of import licences in such a way that the exporter does not know what trade rules apply is a breach of the fundamental objective of the Licensing Agreement." The Appellate Body, however, upheld the Panel's approach and the Panel's finding that the European Communities measure was not inconsistent with Article 3.5(a) of the Licensing Agreement:
In EC. Fasteners (China), the Panel further considered the principle regarding non- consideration of injury caused by non-dumped imports, in relation to imports of producers/exporters not included in the sample used for the dumping determination and not separately granted individual examination. In the investigation at issue, the EU determined that all sampled producers were dumping and calculated a dumping margin for these non- sampled/unexamined producers on the basis of the dumping margins determined for the sampled 80 Appellate Body Report, EC – Bed Linen (Article 21.5 – India), paras. 132-133. 81 Panel Report, Korea – Certain Paper, para. 7.243. 82 Panel Report, EC – Fasteners (China), para. 7.354. 83 Panel Report, EC – Fasteners (China), para. 7.359. 84 Panel Report, EC – Fasteners (China), para. 7.360.
