DISPUTE SETTLEMENT: DISPUTE DS135

European Communities — Measures Affecting Asbestos and Products Containing Asbestos


This summary has been prepared by the Secretariat under its own responsibility. The summary is for general information only and is not intended to affect the rights and obligations of Members.

  

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Current status  back to top

 

Key facts  back to top

Short title:

Complainant:

Respondent:

Third Parties:

Agreements cited:
(as cited in request for consultations)
Request for Consultations received:

Panel Report circulated: 18 September 2000
Appellate Body Report circulated: 12 March 2001

  

Summary of the dispute to date  back to top

The summary below was up-to-date at
See also: One-page summary of key findings of this dispute

Consultations

Complaint by Canada.

On 28 May 1998, Canada requested consultations with the EC in respect of measures imposed by France, in particular Decree of 24 December 1996, with respect to the prohibition of asbestos and products containing asbestos, including a ban on imports of such goods. Canada alleged that these measures violate Articles 2, 3 and 5 of the SPS Agreement, Article 2 of the TBT Agreement, and Articles III, XI and XIII of GATT 1994. Canada also alleged nullification and impairment of benefits accruing to it under the various agreements cited.

On 8 October 1998, Canada requested the establishment of a panel. At its meetings on 21 October 1998, the DSB deferred the establishment of a panel.

 

Panel and Appellate Body proceedings

Further to a second request to establish a panel by Canada, the DSB established a panel at its meeting on 25 November 1998. The US reserved its third-party rights. The report of the panel was circulated to Members on 18 September 2000. The Panel found that:

  • the “prohibition” part of the Decree of 24 December 1996 does not fall within the scope of the TBT Agreement;
     
  • the part of the Decree relating to “exceptions” does fall within the scope of the TBT Agreement. However, as Canada had not made any claim concerning the compatibility with the TBT Agreement of the part of the Decree relating to exceptions, the Panel refrained from reaching any conclusion with regard to the latter;
     
  • chrysotile asbestos fibres as such and fibres that can be substituted for them as such are like products within the meaning of Article III:4 of the GATT 1994;
     
  • the asbestos-cement products and the fibro-cement products for which sufficient information had been submitted to the Panel are like products within the meaning of Article III:4 of the GATT 1994;
     
  • with respect to the products found to be like, the Decree violates Article III:4 of the GATT 1994;
     
  • insofar as it introduces a treatment of these products that is discriminatory under Article III:4, the Decree is justified as such and in its implementation by the provisions of paragraph (b) and the introductory clause of Article XX of the GATT 1994;
     
  • Canada has not established that it suffered non-violation nullification or impairment of a benefit within the meaning of Article XXIII:1(b) of the GATT 1994.

On 23 October 2000, Canada notified the Dispute Settlement Body of its decision to appeal certain issues of law covered in the Panel Report and legal interpretations developed by the Panel. The Appellate Body circulated its report on 12 March 2001. The Appellate Body:

  • ruled that the French Decree, prohibiting asbestos and asbestos-containing products had not been shown to be inconsistent with the European Communities’ obligations under the WTO agreements;
     
  • reversed the Panel’s finding that the TBT Agreement does not apply to the prohibitions in the measure concerning asbestos and asbestos-containing products and found that the TBT Agreement applies to the measure viewed as an integrated whole. The Appellate Body concluded that it was unable to examine Canada’s claims that the measure was inconsistent with the TBT Agreement;
     
  • reversed the Panel’s findings with respect to “like products”, under Article III:4 of the GATT 1994. The Appellate Body ruled, in particular, that the Panel erred in excluding the health risks associated with asbestos from its examination of “likeness”.
     
  • reversed the Panel’s conclusion that the measure is inconsistent with Article III:4 of the GATT 1994. The Appellate Body itself examined Canada’s claims under Article III:4 of the GATT 1994 and ruled that Canada has not satisfied its burden of proving the existence of “like products” under that provision; and
     
  • upheld the Panel’s conclusion, under Article XX(b) of the GATT 1994, that the French Decree is “necessary to protect human … life or health”.

In this appeal, the Appellate Body adopted an additional procedure “for the purposes of this appeal only” to deal with amicus curiae submissions. The Appellate Body received, and refused, 17 applications to file such a submission. The Appellate Body also refused to accept 14 unsolicited submissions from non-governmental organizations that were not submitted under the additional procedure.

At its meeting of 5 April 2001, the DSB adopted the Appellate Body report and the panel report, as modified by the Appellate Body report.

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