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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
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
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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