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General Agreement on Tariffs and Trade: Dispute Settlement Panel Report on the European Economic Community - Import Regime for Bananas

Published online by Cambridge University Press:  27 February 2017

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Type
Judicial and Similar Proceedings
Information
International Legal Materials , Volume 34 , Issue 1 , January 1995 , pp. 177 - 234
Copyright
Copyright©American Society of International Law 1995

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Footnotes

*

[Reproduced from the text provided by the United States Trade Representative. An Introductory Note by Nancy L. Perkins, ILM Editorial Advisory Committee and attorney in the Washington office of Arnold& Porter, appears at 34 I.L.M. 154 (1995). The European Court of Justice Judgment in Federal Republic of Germany v. Council of the European Union, concerning the Common Organization of the Market in Bananas, appears at 34 I.L.M. 165 (1995). The March 29, 1994, Framework Agreement on Bananas, concluded by Costa Rica, Colombia, the Dominican Republic, the European Community, Nicaragua, and Venezuela, appears at 34 I.L.M. 1 (1995). On January 9, 1995, the United States announced the initiation of investigations with regard to the policies and practices of Colombia and Costa Rica affecting U.S. companies that export bananas from those countries to the European Union. These announcements and information concerning the Section 301 case initiated in October 1994 with regard to the European Community bananas import regime appear at 34 I.L.M. 350 (1995). The Fourth ACP-EEC Convention, signed in Lomé on December 15, 1989, which governs the import of bananas from ACP States, can be found at 29 I.L.M. 783 (1990).

[For current status: General Agreement on Tariffs and Trade, Centre William Rappard, 154 Rue de Lausanne, CH 1211 Geneva 21, Switzerland. Telephone: (22) 7395111. Fax: (22) 7314206.]

References

1 Source: Nimex 1991.

2 Source:FAO

3 Provisional.

4 Source: Nimex 1992. is revised.

5 As supplemented by, for instance. Commission Regulations (EEC) 1442/93. 2009/93 and 1838/93.

6 Non-traditional ACP bananas were both those quantities above traditional quantities supplied by traditional ACP-quantities and those quantities supplied by ACP countries which were not traditional suppliers.

7 Third countries’ were banana exporting countries other than ACP countries

8 Article 18 of Council Regulation (EEC) No. 404/93.

9 Detailed rules concerning imports of bananas inside and outside the quota were to be found in Council Regulation (EEC) No-1442/93. is amended by Commission Regulation (EEC)No 2009/93.

10 Report of the panel on Newsprint. BlSD31S/114.paragrapa 30. adopted 20 November 1984; report of the panel on Canada-Withdrawal of Tariff Concessions, BISD 25S/42. paragraph 141, adopted on 17 May 1978; report of the panel on Exports of Potatoes to Canada, BISD 1 IS/88, paragraph 18, adopted on 16 November 1962; report of the working party on Schedules of Concessions. Transposition of Schedule XXXVII Turkey, adopted on 20 December 19S4.

11 E.g report of the panel on Newsprint. BISD 31S/1I4, adopted 20 November 1984.

12 idem

13 idem, paragraph! 52-53.

14 idem, paragraph 50.

15 Commission Regulation (EEC) No 1304 of 18 June 1993.

16 Report by the panel on Increase of Import Duties on Products Included in Schedule XXV (Greece) BISD IS/51 adopted on 3 November 1952.

17 According to the EEC. the figure of 105 ECU(commercial rates) per ton was arrived at by taking into account me avenge unit value of imports into the EEC from all sources for the period 1989-1991 and that it was established GATT law and practice in such cases to take into account imports for all sources: report of the panel on Canada-Withdrawal of Tariff concessions. BISD 25S/42, paragraph 17. adopted on 17 May 1978. The EEC also explained that it was established GATT law in such cases to take into account, for die calculation of the average imports, a “previous representative period” which in this case was the yean 1989 -1991: see report of the panel on EEC Restrictions on imports of dessert apples. BISD 36S/93. paragraphs 12 22. adopted on 22 June 1988.

18 E/PC/T/A/PV/l8.

19 Paragraph 2 of Article XXVIII.

20 In particular Council Regulation (EEC) No. 404/93 and Commission Regulation (EEC) No. 1442/93.

21 Council Regulation (EEC) No 404/93. Article 18.2.

22 Council Regulation (EEC) No 404/93. Article 18.3.

23 Report of the panel on EEC Member Sates’ Import Régimes for Bananas. DS32/R. 5»ges 49 ind 30 (not yet adopted).

24 Idem. page 102, paragraph 369.

25 Report of the panel on Tariff Treatment on Imports of Citrus Products from Certain Mediterranean Countries, L/3776. paragraph 3.24. dated 7 February 1983.

26 Report of the working party on the European Economic Community - Association Agreements with African and Malagasy States and overseas countries and territories. BISD US/106, paragraph 14. adopted on 4 April 1966.

27 Report of sub-group D. BISD 6S/89 - 109.

28 E.g., report of the panel on Japanese Measures on Imports of Leather BISD 31S/9 40-M. adopted 15 May 1984:,ieport of the panel on EEC - Quantitative Restrictions Against Imports of Certain Products from Hong Kong. BISD 30S/129. paragraph 27, adopted on 12 July 1983.

29 Article 174 of the Lomé IV Convention.

30 BISD 24S/63.

31 Report of the panel on EEC Member States’ Import Régimes for Bananas. DS32/R, page 82. paragraph 369.

32 for instance . U.N. Doc. EPCT/PV.II, at page 37 (1947); U.N. Doc. E/CONF.2/C.6/SR.38, at page 4 (1948); and U.N. Doc. E/CONF.2/C.3/78. it page 7 (1948).

33 For nuance, the report of the working party on “EEC-Agreements of Association with Tunisia and Morocco” BISD 18S/149, 154. paragraph 16. adopted on 29 September 1970. Alto the reports of the following working parties: EFT A: BISD 9S/20; LAFTA: BISD 9S/21; Arab Common Market: BISD US/20; UK/Ireland FT A: BISD 14S/23.

34 E.g.. Brazil - Renegotiation of Schedule HI. BISD 22S/10. Decision of 26 November 1973.

35 E.g.. U.S.-lsrael Free Trade Area: North American Free Trade Area: proposed free trade areas between the United Stales and Latin America: die proposed accession to the EEC Customs Union by Turkey and several Eastern European developing countries.

36 U.N. Doc. E/CONF.2/C.3/SR.44 and E/CONF.2/C.3/SR.44. corr. 1. 18 March 1948.

37 For instance. ETTA. BISD 9S/20: LAFTA, BISD 9S/21; Finnish Association with EFTA. BI5O 1 OS/24.

38 Reports of the panels on Republic of Korea Restrictions on Imports of Beef - complaints by Australia. New Zealand and die United States. BISD 36S/202. 234 and 268. adopted on 7 November 1989.

39 Idem, paragraphs 118-119 of the U.S. complaint.

40 Report of the panel on EEC Member Sates’ Import Regime for Bananas, DS32/R. paragraph 363.

41 BISD 36S/268 at paragraphs 118-119. Also report of the panel on Import Restrictions on Almonds. C/M213, 218.

42 L/7153/Add.14

43 Report of the panel on EEC Member States’ Import Régimes for Bananas. DS32/R.

44 final report of the working party. L/416,3 October 1955: and report of the working party on Particular Difficulties Associated with Trade in Primary Commodities. L/592/Rev.1adopted on 17 November 1956. Sec also GATT Secretariat Note to the Working Croup on Environmental Measures and International Trade. TRE/W/17, at paragraph 19. 7 September. 1993.

45 L/301:3S/238.

46 Havana Charter. 1948. at Chapter VI.

47 Idem at Article 60.

48 Report of the panel on EEC-Programme of Minimum import Prices. Licences and Security Deposits for Certain Processed Fruits and Vegetables. B1SD 25S/68. paragraph 4.9. adopted on 18 October 1978; report of the panel on Japan-Trade in Semi-Conductors BISD 335/116. paragraphs 105 and 118. adopted on 4 May 1988.

49 Council Regulation (EEC) No. 404/93 at Recital 16.

50 For example. U.N. Doc. EPCT/C.II/27. at page 10 (1946): U.N. Doc. EPCT/C.II/36. at page 7 (1946): U.N. Doc. E/CONF.2/C.3/SR.18. at page 2 (1947); and U.N. Doc. E/CONF.2/19. at page 4 (1947).

51 J.Jackson, page 321. Also W. Reichwald. Die Deutschen Zollvorschriften. BFA Köln, pag e 19 (1966): S. Muhammed. The Legal Framework of World Trade, London, page 202 (1938); and M. Rom, The Tariff Quota and its Treatment in GATT, 5 Journal of World Trade Law, page 131. at 137. 150-151. 156. and 158-159 (1971).

52 Report of the panel on EEC-Restrictions on Imports of Dessert Apples. B1SD 36S/93. paragraph 12.2; Norway Restrictions on imports of Apples and Pear BISD 36S/306. paragraphs 5.1- 5.3.

53 Report of the panel on EEC-Restrictions on imports of Dessert Apples. BISD 36S/93. paragraph 12.2. adopted on 22 June 1989: report of the panel on Japan Trade in Semi-conductors. BISD 35S/116. paragraph 118. adopted on 4 May 1988.

54 Report of the panel on Japanese Measures on Imports of Leather. BISD 31S/94, paragraph 55. adopted on 15/16 May 1984.

55 U.N. Doc. EPCT/C.II/QR/PV.1 at page 18: U.N. Doc. EPCT/C.II/Q.R./PV.S. at page 95.

56 Report of the panel on EEC-Programme of Minimum Import Prices. Licences and Surety Deposits. BISD 25S/68. paragraph 4.1. adopted on 18 October 1978; report of the panel on Japan-Trade m Semi-Conducters. BISD 35S/116. paragraph 118. adopted on 4 May. 1988.

57 Agreement on Import Licensing Procedures. Article 2 (1979).

58 Report of the panel on Japan Trade in Semi-conductors. BISD 3JS/116. paragraph 18, adopted 4 May 1988.

59 Council Regulation (EEC) No. 404/93. Article 18.

60 Idem Article 23.

61 Report of the panel on Norway-Restrictions on Imports of Certain Textile Products. BISD 27S/119.adopted 18 June 1980: report of the panel on United Sates-Imports of Sugar from Nicaragua. BISD 31S/67, adopted 13 March 1984; report of rte panel on EEC - Restrictions on imports of Dessert Apples. BISD 36S/93. adopted 22 June 1989.

62 Report of the panel on Norway-Restrictions on imports of Certain Textile Products. BISD 27S/119. adopted 18 June 1980.

63 Idem. paragraph 16.

64 Reports of the panel on Japan-Restrictions on imports of certain agricultural Imports,BISD3SS/163,220.15.1.3.7 adopted in march 1988.

65 Jackson. J.:World Trade and Law of GATT. page 202; Rom, Michel. The Tariff Quota and its Treatment in GATT, Journal of World Trade Law, Volume 5, No. 2. March-April 1971: report of die panel on Norway-Restrictions on Imports of Ceram Textile Products. BISD 27S/119. adopted on 18 June 1980: report of the panel on EEC--Restrictions on Import of Dessert Applet, BISD 36S/93, adopted on 22 June 1989; report of the panel on Newsprint, BISD 31S/114, adopted on 20 November 1984.

66 Report of the panel on United States Section 337 of the Tariff Act of 1930, BISD 36S/345. adopted on 7 November 1989.

67 Report of the panel on Canadian Import. Distribution and Sale of Certain Alcoholic Drinks by Provincial Marketing Agencies, DS17/R, adopted on 18 February 1992.

68 Idem. Also, report of the panel on EEC - Payments and Subsidies to Processors and Producers of Oilseeds and Related Animal-Feed Proteins, BISD 37S/86, adopted 23 January 1990: report of the panel on United States-Section 337 of the Tariff Act of 1930, BISD 36S/345. adopted on 7 November 1989; report of the panel on Canada Administration of the Foreign Investment Review Act. BISD 30S/140, 142. adopted on 7 February 1984; report of the panel on EEC - Measures on Animal Feed Protein. BISD 23S/49. adopted on 14 March 1978; report of the panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 7S/6O. adopted on 23 October 1958.

69 Report of the panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 7S/60. adopted on 23 October 1958.

70 E.g.. report of the panel on United States - Section 337 of the Tariff Act of 1930. 3ISD 36S/345. adopted on 7 November 1989.

71 BISD 7S/23.

72 Report of the panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 7S/60, paragraph 12. adopted on 23 October 1938.

73 Report of the panel on Italian Discrimination Against Imported Agricultural Machinery, BISD 7S/60. adopted on 23 October 1988.

74 E.g., report of the panel on United States - Taxes on Petroleum and Certain Imported Substances. BISD 34S/I36. adopted on 17 June 1987.

75 Report by die working party on Documentary Requirements for Imports, Consular Formalities Valuation for Customs Purposes. Nationality of Imported Goods and Formalities Connected with Quantitative Restrictions. BISD IS/100, paragraph 6, adopted on 7 November 1932.

76 BISD25S/68.

77 BISD 26S/56.

78 Report of die working parry on “Modifications to the General Agreement” BISD II/39. at page 44. paragraph 29(b). adopted on 1-2 September 1948.

79 Report of the panel on United States - Restrictions on Imports of Sugar and Certain Sugar-Containing Product! Applied under the Headnode to the Schedule of tariff Concessions, BISD 37S/228, adopted on 7 November 1990

80 Council Regulation (EEC) No. 404/93. Article 12.

81 Report of the panel on EEC Payments of Subsidies paid to processor and producer of oilseeds and related animal-feed proteins, BISD 37S/86. paragraph ISO. adopted on 25 January 1990.

82 BISD US/95, at paragraph IS.

83 Annexed to the Undemanding Regarding Notification. Consultation. Dispute Settlement and Surveillance, BISD 26S/210, adopted on 2S November 1979.

84 Report of the panel on United States - Restrictions on Imports of Sugar and Certain Sugar-Containing Products Applied under die Headnode to the Schedule of tariff Concessions. BISD 37S/228. adopted on 7 November 1990

85 DS28/R. 31 March 1992.

86 These countries are all contracting parties to the General Agreement.

87 Article XIII:2(d).

88 Council Regulation (EEC) No 404/93 of 13 February 1993 on the Common Organization of the Market in Bananas. Subsequent regulations have completed and amended the new régime.

89 Procedures for Negotiations under Article XXVIII. BISD 27S/26. paragraph 7, adopted 10 November 1980.

90 EPCTVTAC/PV/U.page 13.

91 Report of the working party on Transposition of Schedule XXXVII. BISD 3S/127. 128, paragraphs 3-4.

92 Report of the panel on Newsprint. BISD 31S/131, paragraph 30, adopted 20 November 1984

93 Report of the working party on Conversion of Specific Duties in the Norwegian Schedule. BISD 7S/112. paragraph 3. adopted on 14 November 1938; Report of the panel on Canada - Withdrawal of Tariff Concessions. BISD 2SS/110. 117. paragraph 22(e). adoptedOB17 May 1978.

94 Sec references under note 95.

95 Report of the panel on European Economic Community - Payments and subsidies to processors and producers of oilseeds and related animal-feed proteins. BISD37S/86.130, paragraph 130. adopted on 25 January 1990; referring to the Panel on Japanese measure on imports of leather. BISO 31S/94. 112-113. paragraphs 47-48. 53. 35. adopted on 15/16 May 1984.

96 Council Regulation (EEC) No 404/93, Article 19.

97 Report of the panel on United States -Taxes on petroleum and certain imported substances, BISD34S/136, 138. paragraph 5.11.on 17 June 1987.

98 Report of the panel on EEC –Regulation on Imports of Parts and Components. BISD 37S/132, 197, paragraph 3.21. adopted on 16 May 1990.

99 Report of the working parry on Brazilian Internal Taxes. BISD II/181, 183. paragraph 16, adopted on 30 June 1949.

100 Report of the panel on United States - Taxes on petroleum and certain imported substances, BISD 34S/136, 138, paragraph 5.1.9. adopted on 17 June 1987: report of the panel on United States - Measures affecting alcoholic and malt beverages, DS23/R, paragraph’ 5.65. adopted on 19 June 1992,

101 Report of the panel on United Sates Section 337 of the Tariff Act of 1930. BISD 36S/345. 388. paragraph 5.16. adopted on 7 November 1989

102 Report of the panel on EEC - Programme of minimum import prices, licences and surety deposits for certain fruits and vegetables. BISD US/68. 96-97. paragraph 4.4. adopted on 18 October 1978.

103 Cf. document L/7153.

104 Cf. document L/7188/Xev.2.

105 Report of the working parties on: ACP-EEC Convention of Lomé. BISD 23S/46. adopted on 13 July 1976; Second ACP-EEC Convention of Lomé. BISD 29S/119. adopttd 31 Mitch 1982: Third ACP-EEC Convention of Lomé. BISD 35S/321. adopted on 22 September 1988.

106 See also Articles 168 and 174 of die Lomé Convention.

107 Report of the panel on Norway - Restrictions on imports of certain textile products, BISD 27S/119, page 122-6, paragraph IS. I on 18 June 1980.

108 Report of the working parry on Preferences. BISO 13S/100, submitted to the Contracting Parties on 23 November 1964. Conclusion by Council on working parry on Preferences, C/M/23 at page 6 (noting impossibility of agreeing on conclusion of clause on preferences).

109 Generalized System of Preferences, Decision of 23 June 1971, U3343.

110 Decision of 28 November 1979 on “Differential and more favourable treatment, reciprocity and fuller participation of developing a countries ”. L/4903.

111 Report of the working parry on “EEC - Association Agreements with African and Malagasy States and Overseas Countries and Terribries”, BISD US/100. 106. paragraph 14. adopted on 4 April 1966.

112 Havana Reports, page 52. paragraph 27

113 “Understanding Regarding Notification. Consultation, Dispute Settlement and Surveillance”. B1SD 26S/210. adopted on 28 November 1979.