|
ON THIS PAGE:
> EC — Bananas III, paras. 252-253
> EC — Export Subsidies on Sugar, para. 296
> EC — Export Subsidies on Sugar, para. 299
> EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), para. 360
> EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 464, 469, 475
|
N.3.1 EC — Bananas III, paras. 252-253
back to top
(WT/DS27/AB/R)
So, too, is the panel report in United States —
Superfund,
to which the Panel referred. In that case, the panel examined whether
measures with “only an insignificant effect on the volume of exports
do nullify or impair benefits under Article III:2…”. The panel
concluded (and in so doing, confirmed the views of previous panels)
that:
Article III:2, first sentence, cannot be interpreted to protect
expectations on export volumes; it protects expectations on the
competitive relationship between imported and domestic products. A
change in the competitive relationship contrary to that provision must
consequently be regarded ipso facto as a nullification or
impairment of benefits accruing under the General Agreement. A
demonstration that a measure inconsistent with Article III:2, first
sentence, has no or insignificant effects would therefore in the view of
the Panel not be a sufficient demonstration that the benefits accruing
under that provision had not been nullified or impaired even if such a
rebuttal were in principle permitted. [BISD 34S/136, para. 5.1.9]
The panel in United States — Superfund subsequently
decided “not to examine the submissions of the parties on the trade
effects of the tax differential” on the basis of the legal grounds it
had enunciated. The reasoning in United States — Superfund applies
equally in this case.
N.3.2 EC — Export Subsidies on Sugar, para. 296
back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
… pursuant to Article 3.8, where a Member has acted inconsistently
with a covered agreement, the inconsistency is presumed to nullify or
impair benefits accruing to other Members. In such a case, the burden
falls on the defending Member to rebut this presumption by demonstrating
that the inconsistency did not result in nullification or impairment. We
observe that Article 3.8 equates the concept of “nullification or
impairment” with “adverse impact on other Members”, although the
DSU does not define “adverse impact”.
N.3.3 EC — Export Subsidies on Sugar, para. 299
back to top
(WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R)
The text of Article 3.8 of the DSU suggests that a Member may rebut
the presumption of nullification or impairment by demonstrating that its
breach of WTO rules has no adverse impact on other Members. Trade losses
represent an obvious example of adverse impact under Article 3.8. Unless
a Member demonstrates that there are no adverse trade effects arising as
a consequence of WTO-inconsistent export subsidies, we do not believe
that a complaining Member’s expectations would have a bearing on a
finding pursuant to Article 3.8 of the DSU. Therefore, the European
Communities has failed to rebut the presumption of nullification or
impairment pursuant to Article 3.8 of the DSU.
N.3.4 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas III (Article 21.5 — US), para. 360
back to top
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
We believe that nullification or impairment resulting from
inconsistencies with Articles I:1 and XIII may coincide or overlap, and
that any such overlap is relevant only to the calculation of the total
level of nullification or impairment suffered for the purposes of
negotiating compensation or assessing the amount of nullification and
impairment in an arbitration under Article 22 of the DSU. However, we do
not need to pronounce on such questions in these Article 21.5
proceedings. Whether or not nullification or impairment caused by the
violation of one provision overlaps or coincides with that caused by the
violation of another provision does not alter the fact that both
infringements trigger the presumption of nullification or impairment
under Article 3.8. In any event, a demonstration that nullification or
impairment caused by the infringements of distinct WTO obligations may
overlap is not sufficient to rebut the presumption in Article 3.8 of the
DSU that any of these infringements constitutes a prima facie case
of nullification or impairment.
N.3.5 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas III (Article 21.5 — US), paras. 464, 469, 475
back to top
(WT/DS27/AB/RW2/ECU, WT/DS27/AB/RW/USA, WT/DS27/AB/RW2/ECU/Corr.1,
WT/DS27/AB/RW/USA/Corr.1)
We consider that the notion of “standing”, as interpreted by the
Appellate Body in the original proceedings, is broader than the notion
of “nullification or impairment”. In other words, if there is
nullification or impairment, there will also be standing to bring a
complaint. However, standing may also exist in cases that result in no
finding of nullification or impairment. In the original EC — Bananas III proceedings, the Appellate Body found that “a Member
has broad discretion in deciding whether to bring a case against another
Member under the DSU”, and that “a Member is expected to be largely
self-regulating in deciding whether any such action would be ‘fruitful’
”. The Appellate Body further concluded that, considering that the
United States was a producer and potential exporter of bananas, it was
justified in bringing its claims under the GATT 1994. The Appellate Body
then used this same argument to find that the United States had suffered
nullification or impairment of benefits.
…
In these proceedings, as in the original proceedings, the contested
measure may not have actual trade effects because, at present, there are
no exports of bananas from the United States to the European
Communities. However, in order to determine whether the United States
has suffered nullification or impairment, “competitive opportunities”
and, in particular, any potential export interest of the United States
must be taken into account. We do not consider that the European
Communities’ argument — that, as a net importer of bananas, the
United States could not credibly have a “potential” interest in
exporting bananas to the European Communities — is sufficient to rebut
the presumption of nullification or impairment under Article 3.8. As
noted by the panel and the Appellate Body in the original proceedings,
while present production in the United States is minimal, it could at
any time start exporting the few bananas it produces to the European
Communities. That this may be unlikely does not disprove that the United
States is a potential exporter of bananas to the European Communities.
…
…
… We agree with the arbitrators that the question whether
nullification or impairment exists within the meaning of Article 3.8 of
the DSU, and the question of what level of suspension of concessions is
equivalent to the level of nullification or impairment under Article
22.6, are distinct. Therefore, the question how the arbitrators
calculated the level of nullification or impairment under Article 22.6
arises in a different procedural context in WTO dispute settlement. In
any event, the arbitrators stated that there was “continuation of
nullification or impairment of US benefits under the revised EC regime”,
including as a consequence of an inconsistency with Article XIII of the
GATT 1994.
|
The texts reproduced here do not have the legal standing of the original
documents which are entrusted and kept at the WTO Secretariat in Geneva.
|
