In EC Sample Clauses

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. 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. Chicken Cuts, the Appellate Body referred to Annex 1 in the context of examining the link between the Harmonized System and the WTO Agreements:

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. 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. 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, the Panel considered that Articles 2 and 3 of the Paris Convention (1967) set out "criteria for eligibility for protection" for the purposes of the TRIPS Agreement: "In respect of the intellectual property rights relevant to this dispute, it is not disputed that the criteria for eligibility for protection that apply are those found in the Paris Convention (1967). Articles 2 and 3 of the Paris Convention (1967) provide how nationals and persons assimilated to nationals are to be treated. In the Panel's view, these are 'criteria for eligibility for protection' for the purposes of the TRIPS Agreement."12

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. Export Subsidies on Sugar, the EC argued that the terms of a footnote to the EC Schedule excluded certain exports from the scope of the EC reduction commitments. The Appellate Body disagreed, and found arguendo that the commitment in question was inconsistent with Articles 3.3 and 9.1 of the Agreement on Agriculture. The Appellate Body then examined and rejected a further EC argument that this claimed commitment limiting subsidization could prevail over the provisions of the Agreement on Agriculture: "[W]e find no provision under the Agreement on Agriculture that authorizes Members to depart, in their Schedules, from their obligations under that Agreement. Indeed … Article 8 requires that, in providing export subsidies, Members must comply with the provisions of both the Agreement on Agriculture and the export subsidy commitments specified in their Schedules. This is possible only if the commitments in the Schedules are in conformity with the provisions of the Agreement on Agriculture. Thus, we see no basis for the European Communities' assertion that it could depart from the obligations under the Agreement on Agriculture through the claimed commitment provided in Footnote 1. In any event, we note that Article 21 of the Agreement on Agriculture provides that: '[t]he provisions of [the] GATT 1994 and of other Multilateral Trade Agreements in Annex 1A to the WTO Agreement shall apply subject to the provisions of this Agreement.' In other words, Members explicitly recognized that there may be conflicts between the Agreement on Agriculture and the GATT 1994, and explicitly provided, through Article 21, that the Agreement on Agriculture would prevail to the extent of such conflicts. Similarly, the General interpretative note to Annex 1A to the WTO Agreement states that, '[i]n the event of conflict between a provision of the [GATT 1994] and a provision of another agreement in Annex 1A ..., the provision of the other agreement shall prevail to the extent of the conflict.' The Agreement on Agriculture is contained in Annex 1A to the WTO Agreement. As we noted above, Footnote 1, being part of the European Communities' Schedule, is an integral part of the GATT 1994 by virtue of Article 3.1 of the Agreement on Agriculture. Therefore, pursuant to Article 21 of the Agreement on Agriculture, the provisions of the Agreement on Agriculture prevail over Footnote 1. We, therefore, do not agree with the European Communities that 'there is no hierarchy between the export subs...

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.