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ON THIS PAGE:
> EC — Bananas III, para. 161
> EC — Bananas III, para. 163
> EC — Bananas III, para. 190
> EC — Bananas III, para. 200
> EC — Poultry, para. 93
> EC — Poultry, para. 100
> EC — Poultry, para. 106
> EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 334-338
> EC — Bananas III (Article 21.5
— Ecuador II) / EC — Bananas III (Article 21.5 — US), paras. 340-341, 343, 345-346
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T.2.1 EC — Bananas III,
para. 161 back to top
(WT/DS27/AB/R)
… allocation to Members not having a substantial interest must be
subject to the basic principle of non-discrimination. When this principle
of non-discrimination is applied to the allocation of tariff quota shares
to Members not having a substantial interest, it is clear that a Member
cannot, whether by agreement or by assignment, allocate tariff quota
shares to some Members not having a substantial interest while not
allocating shares to other Members who likewise do not have a substantial
interest. To do so is clearly inconsistent with the requirement in Article
XIII:1 that a Member cannot restrict the importation of any product from
another Member unless the importation of the like product from all third
countries is “similarly” restricted.
T.2.2 EC — Bananas III, para. 163
back to top
(WT/DS27/AB/R)
… the reallocation of unused portions of a tariff quota share
exclusively to other BFA countries, and not to other non-BFA
banana-supplying Members, does not result in an allocation of tariff quota
shares which approaches “as closely as possible the shares which the
various Members might be expected to obtain in the absence of the
restrictions”. Therefore, the tariff quota reallocation rules of the BFA
are also inconsistent with the chapeau of Article XIII:2 of the GATT 1994.
T.2.3 EC — Bananas III, para. 190
back to top
(WT/DS27/AB/R)
… The essence of the non-discrimination obligations is that like
products should be treated equally, irrespective of their origin. As no
participant disputes that all bananas are like products, the
non-discrimination provisions apply to all imports of bananas,
irrespective of whether and how a Member categorizes or subdivides these
imports for administrative or other reasons. If, by choosing a different
legal basis for imposing import restrictions, or by applying different
tariff rates, a Member could avoid the application of the
non-discrimination provisions to the imports of like products from
different Members, the object and purpose of the non-discrimination
provisions would be defeated. It would be very easy for a Member to
circumvent the non-discrimination provisions of the GATT 1994 and the
other Annex 1A agreements, if these provisions apply only within regulatory
regimes established by that Member.
T.2.4 EC — Bananas III, para. 200
back to top
(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.
T.2.5 EC — Poultry, para. 93
back to top
(WT/DS69/AB/R)
… As the European Communities did not seek an agreement with Thailand,
the other contracting party having a substantial interest in the supply of
frozen poultry meat to the European Communities at that time, the Oilseeds
Agreement cannot be considered an agreement within the meaning of Article
XIII:2(d) of the GATT 1994.
T.2.6 EC — Poultry, para. 100
back to top
(WT/DS69/AB/R)
… We see nothing in Article XXVIII to suggest that compensation
negotiated within its framework may be exempt from compliance with the
non-discrimination principle inscribed in Articles I and XIII of the GATT
1994. …
T.2.7 EC — Poultry, para. 106
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(WT/DS69/AB/R)
We agree with the Panel that the calculation of shares must be based on
the total imports of the product in question — whether those imports
originate from Members or non-Members. Otherwise, it would not be possible
to comply with the requirement in the chapeau of Article XIII:2 that:
In applying import restrictions to any product, Members shall aim at a
distribution of trade in such product approaching as closely as possible
the shares which the various Members might be expected to obtain in the
absence of such restrictions. …
T.2.8 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas
III (Article 21.5 — US), paras. 334-338
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 begin our analysis by considering the relationship between Article
XI of the GATT 1994 on “General Elimination of Quantitative Restrictions”
and Article XIII on “Non-Discriminatory Administration of Quantitative
Restrictions”. Article XI:1 contains a general prohibition on
quantitative restrictions. Article XI:2 provides for exceptions to the
general prohibition in Article XI:1. A quantitative restriction that is
lawful by reason of an exception under Article XI:2 must nevertheless
satisfy the requirements of Article XIII in respect of its
non-discriminatory administration.
In contrast to quantitative restrictions, tariff quotas do not fall
under the prohibition in Article XI:1 and are in principle lawful under
the GATT 1994, provided that quota tariff rates are applied consistently
with Article I. Members are required, in accordance with Article II, to
provide treatment no less favourable than that bound in their Schedules of
Concessions. Accordingly, in-quota and out-of-quota tariffs must not
exceed bound tariff rates, and import quantities made available under the
tariff quota must not fall short of the scheduled amount. In addition,
tariff quotas are, under the terms of Article XIII:5, made subject to the
disciplines of Article XIII.
Article XIII has a dual function. It regulates the non-discriminatory
administration of quantitative restrictions and also subjects the
application of tariff quotas to these disciplines. Although the language
of XIII:1 is facially more easily applied to quantitative restrictions,
the text must be interpreted so as to ensure that the provisions of
Article XIII are also applied to tariff quotas.
We interpret Article XIII:1 and XIII:2 in the following way. Applying
Article XIII:1 to a tariff quota requires that the word “restriction”
be read as a reference to a tariff quota. Article XIII:1 is then rendered
thus: no tariff quota shall be applied by a Member on the importation of
any product of the territory of any other Member, unless the importation
of the like product of all third countries is similarly made subject to
the tariff quota. The application of the tariff quota is thus on a
product-wide basis. The principle of non-discriminatory application
captured by Article XIII:1 requires that, if a tariff quota is applied to
one Member, it must be applied to all; and, consequently, the term “similarly
restricted” means, in the case of tariff quotas, that imports of like
products of all third countries must have access to, and be given an
opportunity of, participation. If a Member is excluded from access to, and
participation in, the tariff quota, then imports of like products from all
third countries are not “similarly restricted”.
Article XIII:2 regulates the distribution of the tariff quota among
Members. The chapeau of Article XIII:2 requires that the tariff quota be
distributed so as to serve the aim of a distribution of trade approaching
as closely as possible the shares that various Members may be expected to
obtain in the absence of the tariff quota. In this way, all Members
producing the like product are afforded access to, and competitive
opportunities under, the tariff quota in a manner that mimics their
comparative advantage vis-à-vis other Members who would participate under
the quota. Thus, while Article XIII:1 establishes a principle of
non-discriminatory access to and participation in the overall tariff
quota, the chapeau of Article XIII:2 stipulates a principle regarding the
distribution of the tariff quota in the least trade-distorting manner. The
provisions of Article XIII:2(a)-(d) are specific instances of authorized
forms of allocation when a Member chooses to allocate shares of the tariff
quota. Article XIII:2(d) allows for the case where a quota is allocated
among supplying countries, either by way of agreement or, where this is
not reasonably practicable, by allotment to Members having a substantial
interest in supplying the product concerned, and in accordance with the
proportions supplied by those Members during a previous representative
period, taking due account of “special factors”. In other words,
Article XIII:2(d) is a permissive “safe harbour”; compliance with the
requirements of Article XIII:2(d) is presumed to lead to a distribution of
trade as foreseen in the chapeau of Article XIII:2, as far as substantial
suppliers are concerned. It follows from this analysis that a tariff quota
is not per se unlawful because it fails to adhere to the
disciplines of Article XIII. Rather, the administration of the tariff
quota is unlawful if it is applied in a manner that does not comply with
the requirements of Article XIII.
T.2.9 EC — Bananas III (Article 21.5 — Ecuador II) / EC
— Bananas
III (Article 21.5 — US), paras. 340-341, 343, 345-346
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)
The tariff quota also fails to meet the requirements regarding
distribution and allocation in Article XIII:2. The exclusion of non-ACP
suppliers from the tariff quota is not aimed “at a distribution of trade
… approaching as closely as possible the shares which the various
Members might be expected to obtain in the absence of [the] restrictions”,
as required by Article XIII:2. On the contrary, the exclusion of non-ACP
suppliers is not aimed at a distribution of trade that affords access to,
and competitive opportunities under, the tariff quota to all supplying
Members reflecting their comparative advantage; nor does the exclusion of
non-ACP suppliers respect the “safe harbour” allocation requirements
in Article XIII:2(d) based upon the representative proportions of Members
having a substantial interest in the supply of bananas to the European
Communities. Allocating the entire tariff quota exclusively to ACP
countries, and reserving no shares to non-ACP suppliers, cannot be
considered to be based on the respective shares of ACP and non-ACP
supplier countries in the European Communities’ banana market. As a
result, the exclusion of non-ACP suppliers from the tariff quota of
775,000 mt reserved for ACP countries is inconsistent with the
requirements of Article XIII:1, the chapeau of Article XIII:2, and Article
XIII:2(d) of the GATT 1994. Our conclusion is not altered by the fact that
imports from non-ACP suppliers are subject to an MFN tariff only under the
EC Bananas Import Regime.
The European Communities argues that, for Article XIII:1 to apply to a
tariff quota, it must be shown that it imposes a “restriction” on the
“aggrieved Members”, in this case, the non-ACP supplier countries. We
note that the text of Article XIII:1 expressly refers to “prohibition or
restriction” applied “by any Member” on the importation of “any
product” of the territory of “any other Member”. We reject,
therefore, the European Communities’ argument that, because there was no
restriction on the quantities of bananas that Ecuador and the other MFN
countries could export to the European Communities, “the first condition
for the application of Article XIII:1 (i.e., the imposition of a
quantitative restriction on the imports coming from the aggrieved Member)
[was] not satisfied”. Therefore, the ACP duty-free tariff quota is
subject to the requirements of Article XIII:1, regardless of the Members
upon which the restriction is imposed.
…
We consider that the notion of “non-discrimination” in the
application of tariffs under Article I:1 and the notion of
non-discriminatory application of a “prohibition or restriction” under
Article XIII are distinct, and that Article XIII ensures that a Member
applying a restriction or prohibition does not discriminate among all
other Members. Article I:1, which applies to tariffs, and Article XIII:1,
which applies to quantitative restrictions and tariff quotas, may apply to
different elements of a measure or import regime. Article XIII adapts the
MFN-treatment principle to specific types of measures, that is,
quantitative restrictions, and, by virtue of Article XIII:5, tariff
quotas. Tariff quotas must comply with the requirements of both Article
I:1 and Article XIII of the GATT 1994. This, in our view, does not make
Article XIII redundant in respect of tariff quotas: if a Member imposes
differential in-quota duties on imports of like products from different
supplier countries under a tariff quota, Article I:1 would be implicated;
if that Member fails to give access to or allocate tariff quota shares on
a non-discriminatory basis among supplier countries, the requirements of
Articles XIII:1 and XIII:2 would apply. In the absence of Article XIII,
Article I would not provide specific guidance on how to administer tariff
quotas in a manner that avoids discrimination in the allocation of shares.
…
In our view, therefore, the preferential in-quota tariff rate falls
within the scope of Article I:1, while the application and the
distribution of the tariff quota must comply with the non-discrimination
requirements of Article XIII as well, regardless of the applicable
in-quota and out-of-quota duty rates, and regardless of which Members may
be considered to be “aggrieved”. This is also the case when
preferential inquota tariff treatment is reserved for a group of Members
such as the ACP countries.
Having said that, we note our disagreement with the Panel’s overly
broad interpretation of the term “restriction” in Article XIII:1 as
“[a]ny benefit accorded to fresh bananas of only some Members presumably
affect[ing] the competitive opportunities of like bananas imported from
other Members” considering that “[b]y its very nature … a benefit
reserved for some Members generally represents a disadvantage for other
Members.” Such a broad reading of the term “restriction” in Article
XIII would mean that even a simple tariff preference without a limitation
would lead to dissimilar restrictions within the meaning of Article XIII,
thus confounding the function and coverage of Article I and Article XIII.
Such an interpretation would also ignore the fact that Article XIII is
concerned with the nondiscriminatory administration of tariff quotas, and
does not prohibit them as such.
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The texts reproduced here do not have the legal standing of the original
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