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Complaint by the United States.
On 21 September 2004, the United States
requested consultations with the European Communities concerning the
Communitiesí administration of laws and regulations pertaining to the
classification and valuation of products for customs purposes and its
failure to institute tribunals or procedures for the prompt review and
correction of administrative action on customs matters.
According to the request for consultations
from the United States, the non-uniform administration by the European
Communities of laws, regulations, judicial decisions and administrative
rulings pertaining to the classification and valuation of products for
customs purposes and to requirements, restrictions or prohibitions on
imports results in disparate administration among the member States of
these customs measures in a number of respects, including differences in
the classification and valuation of goods.
Furthermore, the United States claims that EC
law provides that EC member States are responsible for the
implementation of appeals procedures. It is claimed, therefore, that
appeals procedures vary from member State to member State, and the
ability to obtain review of a customs decision by a tribunal of the
European Communities is possible only after an importer or other
interested party has exhausted review by national administrative and/or
The United States considers the foregoing
manner of administering the laws, regulations and related measures and
the foregoing arrangement to be inconsistent with the ECís obligations
under Articles X:1, X:3(a) and (b) of GATT 1994.
On 6 October 2004, Australia, Japan and Brazil
requested to join the consultations. On 7 October 2004, Argentina,
Chinese Taipei and India requested to join the consultations. On 13
January 2005, the United States requested the establishment of a panel.
At its meeting on 25 January 2005, the DSB deferred the establishment of
Panel and Appellate Body proceedings
At its meeting on 21 March 2005, the DSB established the panel.
Australia, Brazil, China and Chinese Taipei reserved their third party rights. On 22 March 2005, Hong Kong, China reserved its third party rights. On 24 March 2005, Korea reserved its third party rights. On 30 March 2005, Japan reserved its third party rights. On 31 March 2005, Argentina and India reserved their third party rights.
On 17 May 2005, the United States requested the Director-General to compose the panel. On 27 May 2005, the Director-General composed the panel.
On 24 November 2005, the Chairman of the Panel informed the DSB that it would not be possible for the Panel to complete its work in six months as the Panel was still considering the legal and factual matters raised in this dispute, and that the Panel hoped to complete its work by the end of March 2006.
On 16 June 2006, the Panel report was circulated to Members. The Panel found that:
- the European Communities had violated Article X:3(a) in three cases involving tariff classification and customs valuation;
- the European Communities had not violated Article X:3(a) in five cases in the areas of tariff classification, customs valuation and customs procedures; and
- the United States had not proved that the European Communities had violated Article X:3(a) in 11 cases in the areas of tariff classification, customs valuation and customs procedures.
The Panel also found that the European Communities had not acted inconsistently with the requirements of Article X:3(b) of the GATT 1994.
On 14 August 2006, the United States notified its intention to appeal certain issues of law and legal interpretations developed by the Panel. On 10 October 2006, the Chairman of the Appellate Body informed the DSB that it would not be able to circulate its report within the 60-day period due to the time required for completion and translation of the report. The Appellate Body expected to complete its work no later than 13 November 2006.
On 13 November 2006, the Appellate Body report was circulated to Members. The Appellate Body:
- reversed the Panel's findings that the “measure at issue” for purposes of a claim under Article X:3(a) of the GATT 1994 must necessarily be “the manner of administration that is allegedly non-uniform, partial and/or unreasonable” and found instead that the specific measures at issue identified in the panel request were the Community Customs Code, the Implementing Regulation, the Common Customs Tariff, and the TARIC, as administered collectively;
- reversed the Panel's finding that the United States was precluded from challenging the European Communities' system of customs administration as a whole or overall and the Panel's finding that it was precluded from considering the United States' argument that the “design and structure” of the European Communities' system of customs administration necessarily result in a violation of Article X:3(a) of the GATT 1994;
- upheld, albeit for different reasons, the Panel's interpretation 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 [panel] establishment”;
- reversed the Panel's finding that, without exception, Article X:3(a) of the GATT 1994 always relates to the application of laws and regulations, but not to laws and regulations as such; but upheld the Panel's conclusions that substantive differences in penalty laws and audit procedures among the member States of the European Communities alone do not constitute a violation of Article X:3(a) of the GATT 1994;
- concluded that the Panel did not find that Article X:3(a) of the GATT 1994 requires uniformity of “administrative processes”; upheld the Panel's finding that the term “administer” in Article X:3(a) of the GATT 1994 may include administrative processes that put into effect the legal instruments of the kind described in Article X:1 of the GATT 1994; but reversed the Panel's finding that the administrative process leading to the tariff classification of blackout drapery lining amounts to non-uniform administration within the meaning of Article X:3(a) of the GATT 1994, and that the European Communities has violated Article X:3(a) of the GATT 1994 with respect to the tariff classification of blackout drapery lining;
- upheld the Panel's finding that “[t]he tariff classification of liquid crystal display monitors with digital video interface amounts to non-uniform administration within the meaning of Article X:3(a) of the GATT 1994”;
- reversed the Panel's finding that “the European Communities does not administer its customs law concerning successive sales — in particular, Article 147(1) of the Implementing Regulation — in a uniform manner, in violation of Article X:3(a) of the GATT 1994”; and
- was unable to complete the analysis with respect to the United States' claim that the European Communities' system of customs administration as a whole or overall is not administered in a uniform manner, as required by Article X:3(a) of the GATT 1994;
- upheld the conclusion of the Panel that “Article X:3(b) of the GATT 1994 does not necessarily mean that the decisions of the judicial, arbitral or administrative tribunals or procedures for the review and correction of administrative action relating to customs matters must govern the practice of all the agencies entrusted with administrative enforcement throughout the territory of a particular [WTO] Member”; and
- with respect to Article XXIV:12 of the GATT 1994, found that the conditions on which the European Communities' appeal was predicated were not satisfied, and therefore did not consider it.
At its meeting on 11 December 2006, the DSB adopted the Appellate Body report and the Panel report, as modified by the Appellate Body report.
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