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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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