Topics handled by WTO committees and agreements
Issues covered by the WTO’s committees and agreements

REPERTORY OF APPELLATE BODY REPORTS

Publication and Administration of Trade Regulations


ON THIS PAGE:

Article X:1 of the GATT 1994 — Publication of laws, regulations, judicial decisions and administrative rulings of general application
Article X:2 of the GATT 1994 — Publication of measures of general application
Article X:3 of the GATT 1994
SPS Agreement, Annex B on “Transparency of SPS Regulations”, paragraph 1


P.5.1 Article X:1 of the GATT 1994 — Publication of laws, regulations, judicial decisions and administrative rulings of general application     back to top

P.5.1.1 EC — Poultry, para. 111
(WT/DS69/AB/R)

 

Article X:1 of the GATT 1994 makes it clear that Article X does not deal with specific transactions, but rather with rules “of general application”. …

 

P.5.1.2 EC — Poultry, para. 113
(WT/DS69/AB/R)

 

… Although it is true, as Brazil contends, that any measure of general application will always have to be applied in specific cases, nevertheless, the particular treatment accorded to each individual shipment cannot be considered a measure “of general application” within the meaning of Article X.…

 

P.5.1.3 EC — Poultry, para. 115
(WT/DS69/AB/R)

 

… Thus, to the extent that Brazil’s appeal relates to the substantive content of the EC rules themselves, and not to their publication or administration, that appeal falls outside the scope of Article X of the GATT 1994. The WTO-consistency of such substantive content must be determined by reference to provisions of the covered agreements other than Article X of the GATT 1994.

 
P.5.2 Article X:2 of the GATT 1994 — Publication of measures of general application     back to top

P.5.2.1 US — Underwear, p. 21, DSR 1997:I, p. 3 at 29
(WT/DS24/AB/R)

 

The Panel found that the safeguard restraint measure imposed by the United States is “a measure of general application” within the contemplation of Article X:2. We agree with this finding.…

 
P.5.3 Article X:3 of the GATT 1994     back to top

P.5.3.1 PARAGRAPH (A) — UNIFORM, IMPARTIAL AND REASONABLE ADMINISTRATION

 

P.5.3.1.1 EC — Bananas III, para. 200
(WT/DS27/AB/R)

 

… The text of Article X:3(a) clearly indicates that the requirements of “uniformity, impartiality and reasonableness” do not apply to the laws, regulations, decisions and rulings themselves, but rather to the administration of those laws, regulations, decisions and rulings. The context of Article X:3(a) within Article X, which is entitled “Publication and Administration of Trade Regulations”, and a reading of the other paragraphs of Article X, make it clear that Article X applies to the administration of laws, regulations, decisions and rulings. To the extent that the laws, regulations, decisions and rulings themselves are discriminatory, they can be examined for their consistency with the relevant provisions of the GATT 1994.

 

P.5.3.1.2 US — Oil Country Tubular Goods Sunset Reviews, para. 217
(WT/DS268/AB/R)

 

Argentina claims that the USDOC has conducted sunset reviews in a biased and unreasonable manner, in violation of Article X:3(a) of the GATT 1994. This provision states that every WTO Member “shall administer in a uniform, impartial and reasonable manner all its laws, regulations, decisions and rulings”. We observe, first, that allegations that the conduct of a WTO Member is biased or unreasonable are serious under any circumstances. Such allegations should not be brought lightly, or in a subsidiary fashion. A claim under Article X:3(a) of the GATT 1994 must be supported by solid evidence; the nature and the scope of the claim, and the evidence adduced by the complainant in support of it, should reflect the gravity of the accusations inherent in claims under Article X:3(a) of the GATT 1994.

 

P.5.3.1.3 EC — Selected Customs Matters, paras. 134-135
(WT/DS315/AB/R)

 

The Panel considered that, when a violation of Article X:3(a) of the GATT 1994 is claimed, the measure at issue must necessarily be a “manner of administration” because, if such a violation is found, the WTO Member concerned would need to alter the manner of administration in order to comply with a recommendation made pursuant to Article 19.1 of the DSU. In our view, this reasoning of the Panel is flawed because it conflates the threshold question of whether a measure falls within a panel’s terms of reference with the question of the means of implementation in the event that a violation is found. Through the recommendation under Article 19.1, the Member found to have violated a provision of a covered agreement is required to take corrective action to remove the violation. The recommendation envisaged in Article 19.1 concerns the stage of implementation and not the question of whether a measure falls within a panel’s terms of reference. Moreover, the Member concerned has a degree of discretion with respect to the nature and type of action that it undertakes in order to achieve compliance. Therefore, we have difficulty in understanding how the means of compliance with a recommendation under Article 19.1 of the DSU should govern the identification of the specific measure at issue in a panel request. We agree, in this respect, with the United States that “[t]he mere fact that a breach of Article X:3(a) may be removed by changing a law’s administration is not a basis for concluding that the law is not the measure at issue.”

 

… In [US — Upland Cotton], the Appellate Body had to address the issue of whether an expired measure can be a “measure at issue” within the meaning of Article 6.2 of the DSU. The Appellate Body rejected the United States’ argument that, because an expired measure is not susceptible to a recommendation under Article 19.1 of the DSU, it cannot be a “measure at issue” under Article 6.2. For the Appellate Body, the question of whether a panel can address claims in respect of an expired measure is to be distinguished from the question of whether that measure is susceptible to a recommendation under Article 19.1.…  the Appellate Body’s reasoning in US — Upland Cotton supports our position that Article 19.1 of the DSU does not place restrictions on the type of measure that can be identified in a panel request under Article 6.2 of the DSU.

 

P.5.3.1.4 EC — Selected Customs Matters, paras. 186, 188
(WT/DS315/AB/R)

 

We agree with the conclusion of the Panel that “the steps and acts of administration that pre-date or post-date the establishment of a panel may be relevant to determining whether or not a violation of Article X:3(a) of the GATT 1994 exists at the time of establishment”.…

 

 

In order to determine whether the measures at issue have been administered at the time of the Panel’s establishment in a manner that is inconsistent with Article X:3(a) of the GATT 1994, the Panel was … entitled to rely on evidence of acts of administration. Thus, it is important to distinguish between, on the one hand, the measures at issue and, on the other hand, acts of administration that have been presented as evidence to substantiate the claim that the measures at issue are administered in a manner inconsistent with Article X:3(a) of the GATT 1994. The Panel failed to make the distinction between measures and pieces of evidence. While there are temporal limitations on the measures that may be within a panel’s terms of reference, such limitations do not apply in the same way to evidence. Evidence in support of a claim challenging measures that are within a panel’s terms of reference may pre-date or post-date the establishment of the panel. A panel is not precluded from assessing a piece of evidence for the mere reason that it pre-dates or post-dates its establishment. In this case, the United States was not precluded from presenting evidence relating to acts of administration before and after the date of Panel establishment. A panel enjoys a certain discretion to determine the relevance and probative value of a piece of evidence that pre-dates or post-dates its establishment.

 

P.5.3.1.5 EC — Selected Customs Matters, paras. 199-201
(WT/DS315/AB/R)

 

… in EC — Bananas III and EC — Poultry, the Appellate Body distinguished between, on the one hand, the laws, regulations, judicial decisions, and administrative rulings of general application set out in Article X:1 of the GATT 1994 and, on the other hand, the administration of these legal instruments. The Appellate Body reasoned that, as Article X:3(a) establishes disciplines on the administration of the legal instruments of the kind described in Article X:1, claims concerning the substantive content of these Article X:1 legal instruments fall outside the scope of Article X:3(a).

 

The statements of the Appellate Body in EC — Bananas III [at paragraph 200] and EC — Poultry [at paragraph 115] do not exclude, however, the possibility of challenging under Article X:3(a) the substantive content of a legal instrument that regulates the administration of a legal instrument of the kind described in Article X:1. Under Article X:3(a), a distinction must be made between the legal instrument being administered and the legal instrument that regulates the application or implementation of that instrument. While the substantive content of the legal instrument being administered is not challengeable under Article X:3(a), we see no reason why a legal instrument that regulates the application or implementation of that instrument cannot be examined under Article X:3(a) if it is alleged to lead to a lack of uniform, impartial, or reasonable administration of that legal instrument.

 

This distinction has implications for the type of evidence required to support a claim of a violation of Article X:3(a). If a WTO Member challenges under Article X:3(a) the substantive content of a legal instrument that regulates the administration of a legal instrument of the kind described in Article X:1, it will have to prove that this instrument necessarily leads to a lack of uniform, impartial, or reasonable administration. It is not sufficient for the complainant merely to cite the provisions of that legal instrument. The complainant must discharge the burden of substantiating how and why those provisions necessarily lead to impermissible administration of the legal instrument of the kind described in Article X:1.

 

P.5.3.1.6 EC — Selected Customs Matters, paras. 210-211
(WT/DS315/AB/R)

 

We already found that the substantive content of legal instruments that regulate the application or implementation of laws, regulations, decisions, and administrative rulings of the kind described in Article X:1 can be challenged under Article X:3(a). We therefore consider that the penalty laws of member States, as instruments of implementation of European Communities customs law, can be examined under Article X:3(a). However, the United States must substantiate how and why divergences in penalty laws among member States necessarily lead to non-uniform administration of European Communities customs law.

 

In our view, differences in penalty provisions, in and of themselves, do not necessarily lead to a violation of Article X:3(a). Whether differences would lead to non-uniform administration depends on both the nature of the penalty provisions and the nature of the customs law provisions that they seek to enforce. No evidence was adduced by the United States before the Panel on either the degree of differences in the penalty provisions of the member States or the impact of such differences in the enforcement of the provisions of European Communities customs law.

 

P.5.3.1.7 EC — Selected Customs Matters, paras. 215-216
(WT/DS315/AB/R)

 

With respect to differences in audit procedures among member States of the European Communities …

 

… [a]s we indicated in relation to penalty laws, the mere existence of differences in the laws themselves is not sufficient to show a breach of the uniformity requirement in Article X:3(a) … Different results in the application of a law or provision do not necessarily reflect non-uniform administration of the law itself, but may stem as well from the exercise of discretion in the application of the law or circumstances of the case.…

 

P.5.3.1.8 EC — Selected Customs Matters, para. 224
(WT/DS315/AB/R)

 

We turn to the question of whether the term “administer” in Article X:3(a) may include administrative processes and whether it requires uniformity of administrative processes. We agree with the Panel that the term “administer” may include administrative processes. In its broadest sense, an administrative process may be understood as a series of steps, actions, or events that are taken or occur in relation to the making of an administrative decision. Given this broad definition of administrative process, it appears to us that Article X:3(a) of the GATT 1994 does not contemplate uniformity of administrative processes. In other words, non-uniformity or differences in administrative processes do not, by themselves, constitute a violation of Article X:3(a). This Article contains an obligation to administer in a uniform manner legal instruments of the kind described in Article X:1 — laws, regulations, judicial decisions, and administrative rulings of general application pertaining to the subject matters set out in that provision. We agree with the Panel that the term “administer” in Article X:3(a) refers to putting into practical effect, or applying, a legal instrument of the kind described in Article X:1. Thus, under Article X:3(a), it is the application of a legal instrument of the kind described in Article X:1 that is required to be uniform, but not the processes leading to administrative decisions, or the tools that might be used in the exercise of administration.

 

P.5.3.1.9 EC — Selected Customs Matters, para. 225
(WT/DS315/AB/R)

 

… The features of an administrative process that govern the application of a legal instrument of the kind described in Article X:1 may constitute relevant evidence for establishing uniform or non-uniform administration of that legal instrument. The probative value of such evidence will, however, depend on the circumstances of each case and will necessarily vary from case to case. Thus, we may conceive of cases where a panel might attach much weight to differences that exist at the level of the administrative processes, because it considers these differences to be so significant that they have caused, or are likely to cause, the non-uniform application of the legal instrument at issue. On the other hand, a panel might conclude, after an overall assessment of the evidence, that the consistent nature of the results of the application of the legal instrument shows that the measure at issue is administered in a uniform manner, even though differences may exist at the level of the administrative process.

 

P.5.3.1.10 EC — Selected Customs Matters, para. 226
(WT/DS315/AB/R)

 

… in order to substantiate a claim of violation based on an administrative process, it is not sufficient that the complainant merely recites the features of the administrative processes; it will also have to show how and why those features necessarily lead to a lack of uniform, impartial, or reasonable administration of a legal instrument of the kind described in Article X:1.

 

P.5.3.1.11 EC — Selected Customs Matters, para. 239
(WT/DS315/AB/R)

 

… the term “administer” may include administrative processes, but this does not mean that Article X:3(a) of the GATT 1994 requires uniformity of administrative processes. In order to find that an administrative process has led to non-uniform administration of a measure under Article X:3(a), a panel cannot merely rely on identifying the features of an administrative process that it may view as nonuniform; a panel must go further and undertake an analysis to determine whether those features of the administrative process necessarily lead to non-uniform administration of a legal instrument of the kind described in Article X:1.

 

P.5.3.2 PARAGRAPH (B) — INDEPENDENT JUDICIAL, ARBITRAL OR ADMINISTRATIVE REVIEW

 

P.5.3.2.1 EC — Selected Customs Matters, paras. 2940-295
(WT/DS315/AB/R)

 

… both parties agree that Article X:3(b) relates to first instance review. The Panel agreed with this interpretation.… We agree that the phrase “unless an appeal is lodged with a court or tribunal of superior jurisdiction” contemplates the possibility that there may be an appeal to bodies of “superior jurisdiction” and confirms the view that Article X:3(b) relates to first instance review.…

 

… The question before us is whether, as argued by the United States, Article X:3(b) requires that first instance review decisions must govern the practice of all the agencies entrusted with administrative enforcement throughout the territory of a WTO Member.

 

P.5.3.2.2 EC — Selected Customs Matters, paras. 297-299
(WT/DS315/AB/R)

 

… The reference to “tribunals” and “procedures” in the plural suggests to us that WTO Members are free to establish several first instance review tribunals and procedures that have different substantive or geographic areas of competence. Article X:3(b) does not, in our view, preclude a WTO Member from establishing first instance review tribunals and procedures governing the practice of all administrative agencies in their entire territory; however, it also does not require WTO Members to do so.…

 

… Article X:3(b) leaves the specific structure of the review mechanism to the discretion of the Member concerned. Therefore, “such agencies” may encompass more or fewer agencies depending on the structure of the review mechanism. However, we do not see why the jurisdiction of a review tribunal or procedure and the binding effect of a review decision of that tribunal would always or necessarily have to extend to all agencies of a Member.

 

In addition, we recall that Article X:3(b) relates to first instance review and contemplates the possibility of appeals to bodies of “superior jurisdiction” as well as the seeking of “a review of the matter” by a centralized agency. This would also suggest that the first instance review required by that provision need not necessarily cover the entire territory of a WTO Member.

 

P.5.3.2.3 EC — Selected Customs Matters, para. 301
(WT/DS315/AB/R)

 

… We consider that Article X:3(a) of the GATT 1994 is relevant as context.… We are … of the view that the requirement of “uniformity” contained in Article X:3(a) does not imply that under Article X:3(b) decisions of review tribunals must govern the practice of all agencies entrusted with customs enforcement throughout the territory of a WTO Member. Article X:3(a) requires, inter alia, uniformity of administration. In contrast, Article X:3(b) relates to the review and correction of administrative action by independent mechanisms.

 

P.5.3.2.4 EC — Selected Customs Matters, para. 302
(WT/DS315/AB/R)

 

… turning briefly to the treaty’s object and purpose, we note the Panel’s view that the due process objective underlying Article X:3(b) is that “a trader who has been adversely affected by a decision of an administrative agency has the ability to have that adverse decision reviewed”. We believe this due process objective is not undermined even if first instance review decisions do not govern the practice of all the agencies entrusted with customs enforcement throughout the territory of a WTO Member, so long as there is a possibility of an independent review and correction of the administrative action of every agency.

 

P.5.3.2.5 EC — Selected Customs Matters, para. 303
(WT/DS315/AB/R)

 

For these reasons, we are of the view that Article X:3(b) of the GATT 1994 requires a WTO Member to establish and maintain independent mechanisms for prompt review and correction of administrative action in the area of customs administration. However, neither text nor context nor the object and purpose of this Article require that the decisions emanating from such first instance review must govern the practice of all agencies entrusted with administrative enforcement throughout the territory of a particular WTO Member.

 
P.5.4 SPS Agreement, Annex B on “Transparency of SPS Regulations”, paragraph 1     back to top

P.5.4.1 Japan — Agricultural Products II, paras. 105-106
(WT/DS76/AB/R)

 

We consider that the list of instruments contained in the footnote to paragraph 1 of Annex B is, as is indicated by the words “such as”, not exhaustive in nature. The scope of application of the publication requirement is not limited to “laws, decrees or ordinances”, but also includes, in our opinion, other instruments which are applicable generally and are similar in character to the instruments explicitly referred to in the illustrative list of the footnote to paragraph 1 of Annex B.

 

The object and purpose of paragraph 1 of Annex B is “to enable interested Members to become acquainted with” the sanitary and phytosanitary regulations adopted or maintained by other Members and thus to enhance transparency regarding these measures. In our opinion, the scope of application of the publication requirement of paragraph 1 of Annex B should be interpreted in the light of the object and purpose of this provision.

 


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