WORLD TRADE
ORGANIZATIONWT/DS87/AB/R
WT/DS110/AB/R
13 December 1999
(99-5414)
Original: English
CHILE – TAXES ON ALCOHOLIC BEVERAGES
AB-1999-6
Report of the Appellate BodyWT/DS87/AB/R
WT/DS110/AB/R
Page i
I. Introduc tion................................................................................................................. ................1
II. Arguments of the Participan ts and Third Pa rticipan ts ................................................................3
A. Claims of Error by Chile – Appellant.......................................................................... 3
1. "Not Similarly Taxed" ....................................................................................3
2. "So As To Afford Protection".........................................................................4
3. Article 12.7 of the DSU ..................................................................................5
4. Articles 3.2 and 19.2 of the DSU....................................................................6
B. Arguments by the European Communities - Appellee ................................................. 6
1. "Not Similarly Taxed" ....................................................................................6
2. "So As To Afford Protection".........................................................................7
3. Article 12.7 of the DSU ..................................................................................84. Articles 3.2 and 19.2 of the DSU....................................................................8
C. Arguments by the Third Participants........................................................................... 9
1. Mexico ............................................................................................................9
2. United States.................................................................................................10
III. Issues Raised in this Appeal ............................................................................................... ......11
IV. "Not Similarly Taxed" ....................................................................................................... .......12
V. "So As To Afford Protection"................................................................................................. ..15
VI. Article 12.7 of the DSU ..................................................................................................... .......22
VII. Articles 3.2 and 19.2 of the DSU........................................................................................... ...23
VIII. Findings and Conclusions.................................................................................................. .......23WT/DS87/AB/R
WT/DS110/AB/R
Page 1
WORLD TRADE ORGANIZATION
APPELLATE BODY
Chile – Taxes on Alcoholic Beverages
Chile,  Appellant
European Communities,  Appellee
Mexico, Third   Participant
United States, Third ParticipantAB-1999-6
Present:Feliciano,  Presiding Member
Ehlermann,  MemberLacarte-Muró,  Member
I. Introduction
1. Chile appeals certain issues of law and legal interpretation developed in the Panel Report,
Chile – Taxes on Alcoholic Beverages .1  Following a request for consultations2, a Panel was
established on 25 March 1998 by the Dispute Settlement Body (the "DSB") to consider a complaintby the European Communities against Chile regarding its Special Sales Tax on Spirits, as modified bythe Additional Tax on Alcoholic Beverages ("Impuesto Adicional a las Bebidas Alcohólicas" or"ILA").
3
2. The ILA provides a transitional tax system (the "Transitional System") for distilled spirits
("spirits") which is applicable until 1 December 2000, and a revised tax system (the "New Chilean
System") which will be applied from 1 December 2000.4  The New Chilean System taxes all spirits on
the basis of their alcohol content and price.  Spirits with an alcohol content of 35° or less are taxed ata rate of 27 per cent  ad valorem .  From a rate of 27 per cent  ad valorem , the tax rate increases in
increments of 4 percentage points per additional degree of alcohol, until a maximum rate of47 per cent  ad valorem  is reached for all spirits over 39°.
5  The Panel found that roughly 75 per cent
                                                     
1WT/DS87/R, WT/DS110/R, 15 June 1999.
2On 4 June 1997, the European Communities requested consultations with Chile with regard to the
Special Sales Tax on Spirits (WT/DS87/1). On 15 December 1997, the European Communities further requested
consultations with Chile with regard to the modifications to the Special Sales Tax on Spirits introduced by the
enactment of the Additional Tax on Alcoholic Beverages, contained in Law No. 19,534 of 13 November 1997(WT/DS110/1).
3Pursuant to Article 9.1 of the DSU, the DSB, at its meeting of 25 March 1998, agreed that the Panel
established on 18 November 1997 to examine the complaint contained in document WT/DS87/5 should alsoexamine the complaint contained in document WT/DS110/4.
4Panel Report, para. 2.3.
5Ibid., paras. 2.5 and 2.6, and Table 2.WT/DS87/AB/R
WT/DS110/AB/R
Page 2
of the total volume of domestically produced spirits will be taxed at 27 per cent  ad valorem , while
over 95 per cent of the total volume of imported spirits will be taxed at 47 per cent  ad valorem .6  A
detailed description of the factual aspects of the dispute is provided at paragraphs 2.1 to 2.29 of thePanel Report.
3. The Panel considered claims made by the European Communities that the measure at issue is
inconsistent with Article III:2, second sentence, of the General Agreement on Tariffs and Trade 1994(the "GATT 1994") because it accords preferential tax treatment to pisco, a distilled alcoholic
beverage produced in Chile, thereby affording "protection" to domestic production in relation to
certain imported alcoholic beverages.  The Panel Report was circulated to the Members of the WorldTrade Organization (the "WTO") on 15 June 1999.  The Panel reached the conclusion that "thedomestic distilled alcoholic beverages produced in Chile, including pisco, and the imported productspresently identified by HS classification 2208, are directly competitive or substitutable products." 
7
The Panel also concluded that both the "Transitio nal System and [the] New Chilean System provide
for dissimilar taxation of the imports in an amount that is greater than de minimis  levels."8
Furthermore, the dissimilar taxation in both systems was found to be "applied in a manner so as to
afford protection to Chile's domestic production."9  As a result, the Panel concluded that "there is
nullification or impairment of the benefits accruing to the complainant under GATT 1994 within the
meaning of Article 3.8 of the Dispute Settlement Understanding"10, and recommended that the DSB
request Chile to bring its taxes on distilled alcoholic beverages into conformity with its obligationsunder the GATT 1994.
11
4. On 13 September 1999, Chile notified the DSB of its intention to appeal certain issues of law
and legal interpretation developed by the Panel, pursuant to paragraph 4 of Article 16 of theUnderstanding on Rules and Procedures Governing the Settlement of Disputes  (the "DSU"), and filed
a Notice of Appeal with the Appellate Body, pursuant to Rule 20 of the  Working Procedures for
Appellate Review  (the " Working Procedures ").  In its Notice of Appeal, Chile appealed certain of the
Panel's findings with respect to the New Chilean System.
 12  On 23 September 1999, Chile filed its
                                                     
6Panel Report, para. 7.158.
7Ibid., para. 8.1.  The imported products identified in HS classification 2208 include the following:
whisky, brandy, rum, gin, vodka, liqueurs, aquavit, korn, fruit brandies, ouzo and tequila ( ibid., para. 2.7).
8Ibid., para. 8.1.
9Ibid.
10Ibid.
11Ibid., para. 8.2.
12Chile does not appeal the Panel's findings on the Transitional System.WT/DS87/AB/R
WT/DS110/AB/R
Page 3
appellant's submission.13  On 8 October 1999, the European Communities filed its appellee's
submission14 and Mexico and the United States filed their respective third participant's submissions.15
The oral hearing in the appeal was held on 20 October 1999.16  At the oral hearing, the participants
and the third participants presented oral arguments and answered questions from the Division of theAppellate Body hearing the appeal.
II. Arguments of the Participants and Third Participants
A. Claims of Error by Chile – Appellant
1. "Not Similarly Taxed"
5. Chile argues that the Panel erred in finding that the New Chilean System results in dissimilar
taxation of directly competitive or substitutable imported and domestic products under Article III:2,second sentence, of the GATT 1994.  Chile asserts that it is important to adopt the "properperspective"
17 when determining whether dissimilar taxation exists: margins of difference in the
taxation of imported and domestic products will vary depending on the perspective chosen.
6. The New Chilean System taxes all distilled alcoholic beverages, irrespective of their origin or
type, according to the same criteria: alcohol content and price.  These are standard, non-"arbitrary"18
criteria widely used in the taxation of alcoholic beverages.
7. According to Chile, the Panel chose an incorrect perspective from which to examine the New
Chilean System.  The Panel looked at the system in two alternative ways:  as if it were an  ad valorem
tax and as if it were a specific tax.  It was the decision to use this erroneous perspective that led to thePanel's conclusion that dissimilar taxation existed.  Chile objects to the fact that the Panel viewed itssystem with "skepticism" simply because it was a "hybrid", or mixed, system applying two criteria,instead of one.
 19
                                                     
13Pursuant to Rule 21(1) of the Working Procedures.
14Pursuant to Rule 22(1) of the Working Procedures .
15Pursuant to Rule 24 of the Working Procedures .
16Pursuant to Rule 27 of the Working Procedures .
17Chile's appellant's submission, page 13, heading 4.
18Ibid., para. 39.
19Ibid., paras. 40 and 41.WT/DS87/AB/R
WT/DS110/AB/R
Page 4
8. Since the Panel looked at the tax from the wrong perspective, it considered the  effect  of the
tax rather than the tax  as such .  The consequence is that dissimilarities appear.  However, these
perceived dissimilarities in taxation result simply from dissimilarities in the alcohol content and priceof different types of alcoholic beverage.
9. The Panel should have looked at the tax as a percentage of the price of a distilled alcoholic
beverage of a particular alcohol content.  If looked at in this way, the system applies an identical  ad
valorem  tax rate to all products of a particular alcohol content, regardless of origin.
10. Chile believes that the Panel Report, if upheld, would require WTO Members to adopt tax
systems based on either an ad valorem  or a specific tax.  In practice, only these two types of tax
system would be permitted under WTO rules.  This would seriously limit the freedom of WTOMembers in establishing tax policies, since the pract ical effect of the Panel's finding would be that
"hybrid" systems are not permitted.
2. "So As To Afford Protection"
11. Chile argues that this case is very different from Japan –  Taxes on Alcoholic Beverages
("Japan – Alcoholic Beverages ")20 and Korea – Taxes on Alcoholic Beverages  ("Korea – Alcoholic
Beverages ")21 in that the New Chilean System is not discriminatory.  Chile's tax law does not identify
products by name or refer to their characteristics.  The New Chilean System distinguishes between
products on the basis of two widely accepted criteria:  alcohol content and price.  For this reason,imports are able to compete with domestic products in each and every tax category.  The EuropeanCommunities and other exporters produce numerous alcoholic beverages that will fall into the lowesttax bracket.  The fact that more domestic products than imported products fall into the lowest taxbracket cannot be attributed to the New Chilean System.  This product distribution is based on marketfactors, and the market is subject to change and evolution in the future.
12. Chile stresses that many domestic products, such as Chilean whisky, brandy, rum, gin, vodka,
gran pisco, and pisco reservado, will fall into the highest tax bracket.  Applying the New Chilean
System to current trade, in volume  terms, the burden of the highest tax bracket would fall mainly on
domestic products: 70 per cent of the products in the tax brackets applying to products of an alcoholicstrength of more than 35° are Chilean, and 63 per cent of the products in the tax bracket applying to
                                                     
20Appellate Body Report, WT/DS8/AB/R, WT/DS10/AB/R, WT/DS11/AB/R, adopted
1 November 1996.
21Appellate Body Report, WT/DS75/AB/R, WT/DS84/AB/R, adopted 17 February 1999.WT/DS87/AB/R
WT/DS110/AB/R
Page 5
products of an alcoholic strength of more than 39° are also Chilean.  The Panel erred by disregarding
the existence of many domestic products subject to the higher tax brackets.
13. Chile contends that there is nothing inherently "domestic" or "imported" about the production
of a beverage of a particular alcoholic strength.  Both domestic and foreign producers can and doproduce spirits of different strengths.  Therefore, the Panel's conclusion that the tax is applied "so asto afford protection" was erroneous.
14. Chile asserts that the Panel erred in finding that the stated objectives of the measure were
"inconsistent"
22 with the measure.  While perhaps not fully successful in achieving the objectives, the
measure is not inconsistent with its goals.  Such a finding constitutes an indirect evaluation by thePanel of the "efficiency"
23 of the policies of WTO Members.  This is inappropriate.  A WTO Member
has the right to choose between different tax systems and the mere fact that one system may"inconvenience"
24 imports more than another system does not render it inconsistent with WTO law.
The Panel was wrong even to consider Chile's legislative objectives, since the Appellate Body hasestablished that the "so as to afford protection" requirement is not a matter of intent.
15. Finally, Chile insists that the Panel's assertion that there is a "logical connection" between the
New Chilean System and the previous tax systems is inappropriate and irrelevant.  This statement
"seems to be mainly motivated by the old cliché 'once a thief always a thief'." 
25
3. Article 12.7 of the DSU
16. Chile submits that the Panel failed to provide the "basic rationale" for its findings on the "not
similarly taxed" issue, as required by Article 12.7 of the DSU.  The Panel based its findings on theAppellate Body's findings in  Japan – Alcoholic Beverages , but the findings in that case do not
resolve the question for the more complicated facts of the dispute at hand.
17. In Chile's view, the Panel's findings do not expl ain how it interpreted the term "not similarly
taxed".  Furthermore, the Panel did not explain how the New Chilean System could, in the future,satisfy the "similarity" criteria.  Finally, in its reasoning, the Panel, in essence, listed and discarded a
number of arguments, but did not elaborate on how it reached its own conclusions.  Thus, the Panel
did not provide a "basic rationale" for its findings as required by Article 12.7 of the DSU.
                                                     
22Chile's appellant's submission, para. 97, and Panel Report, para. 7.154.
23Chile's appellant's submission, para. 98.
24Ibid., para. 99.
25Ibid., para. 101.WT/DS87/AB/R
WT/DS110/AB/R
Page 6
4. Articles 3.2 and 19.2 of the DSU
18. Chile contends that the Panel compromised the "security and predictability" of the multilateral
trading system, and added to the obligations provided in the covered agreements, in contravention ofArticles 3.2 and 19.2 of the DSU.  The violation of Article 3.2 of the DSU arises in part from theabsence of a "basic rationale" for the "not similarly taxed" finding in the Panel Report.  As a result,the Report leaves Members without clear guidelines as to how to design their systems of taxation.Furthermore, by preferring certain systems of taxation over others, the Panel has unlawfully added to
the obligations of WTO Members, in violation of Articles 3.2 and 19.2 of the DSU.
19. Moreover, Chile argues that the Panel's evaluation of the "efficiency" or "rationality" of the
measure in light of its stated objectives also adds to the obligations of WTO Members incontravention of Articles 3.2 and 19.2 of the DSU.
B. Arguments by the European Communities - Appellee
1. "Not Similarly Taxed"
20. The European Communities argues that, contrary to Chile's claims, the New Chilean System
is like any other  ad valorem  tax system in which different tax rates are applied to different categories
of product.  All tax systems impose a tax burden based on a percentage of the price (an ad valorem
tax) or an absolute amount per unit (a specific tax).  The New Chilean System is no exception.  The
fact that ad valorem  rates vary with alcohol content does not set this system apart from other ad
valorem  systems.
21. According to the European Communities, the "not similarly taxed" issue requires a
comparison of the relative tax burdens on imported and domestic products, rather than an examinationof the method of taxation, as proposed by Chile.  Under the New Chilean System, tax burdens areexpressed in ad valorem  terms, and, therefore, must be compared on that basis.  Thus, the Panel's
method of analysis, comparing the ad valorem  rates applied to pisco with the ad valorem  rates applied
to imported spirits, was appropriate.
22. The European Communities argues that panels must compare the tax burden on each
individual imported product with the tax burden  on each individual directly competitive or
substitutable domestic product.  This principle requires a comparison between the tax burden onimported spirits and the tax burden on low alcohol content  pisco.  This comparison leads to a findingof dissimilar taxation of  pisco and imported products under the New Chilean System.  Chilean lawprescribes a minimum alcohol strength for each type of spirit.  The principal types of imported spiritsWT/DS87/AB/R
WT/DS110/AB/R
Page 7
are products required to have a minimum alcohol content of 40 °, placing them in the highest tax
bracket.  By contrast, the minimum alcohol content of  pisco is 30 °, with 35 ° alcohol content being
the most widely consumed pisco, placing these  pisco products in the lowest tax bracket.  As a result,
the tax distinctions between spirits with a different alcohol content under the New Chilean Systemnecessarily lead to low alcohol content  pisco al ways being taxed "at a lower rate than imported
spirits."
26
23. In addition, the European Communities suggests that if Chile's arguments were adopted it
would be extremely easy to circumvent the prohibi tions of Article III:2, second sentence, of the
GATT 1994.  WTO Members would be able to draw many  types of distinction between spirits as long
as they avoided making formal distinctions based on the name of the product.  The result would be
that, based on these distinctions, domestic products and imports could in reality be "not similarly
taxed".  Chile attempts to deal with this problem by distinguishing between the use of tax criteria thatare "arbitrary" as against criteria that are "non-arbitrary".  However, this distinction has no support inArticle III:2, second sentence, of the GATT 1994 and, moreover, Chile offers no guidance as to how"arbitrary" and "non-arbitrary" criteria are to be distinguished from each other.
24. Finally, the New Chilean System is based on an unusual method of taxation that combines
two criteria that may conflict.  Since higher priced products may, in some cases, have a low alcoholcontent, the use of ad valorem  rates will, in those cases, lead to higher tax on high-priced products
with low alcohol content than the tax imposed on low-priced products with high alcohol content.
2. "So As To Afford Protection"
25. The core of the Chilean argument is that the structure of the New Chilean System does not
support a finding that the law is applied "so as to afford protection" because it does not distinguishbetween products by name.  The European Communities insists that this is irrelevant.  The issue iswhether the New Chilean System, although "facially neutral"
27, is  de facto  discriminatory under
Article III:2, second sentence, of the GATT 1994.
26. The European Communities notes that, contrary to Chile's claim, the Panel did not reject the
relevance of the fact that some domestic products were in the highest tax category.  The moreimportant fact is that the percentage of domestic products in the highest tax bracket, as compared to
the percentage of domestic products in other tax brackets, is "relatively small".
28  The percentage of
                                                     
26European Communities' appellee's submission, para. 33.
27Ibid., para. 58.
28Ibid., para. 63.WT/DS87/AB/R
WT/DS110/AB/R
Page 8
domestic products in the highest tax bracket is comparable to the equivalent figures in Japan –
Alcoholic Beverages .
27. Moreover, the fact that there are some imports in the lowest tax bracket does not undermine
the Panel's finding that the New Chilean System was applied "so as to afford protection".  The amountof imports in this bracket, approximately five percent of total imports, is very small.  In both  Japan –
Alcoholic Beverages  and Korea – Alcoholic Beverages , the existence of a small amount of imports in
the lowest tax bracket did not preclude a finding that the measures were applied "so as to afford
protection".  Furthermore, according to the Euro pean Communities, Chile's argument that foreign
producers have the opportunity to export low alcohol content products in the future is irrelevant.
28. The European Communities contends that th e Panel was right to review the rational
connection between the New Chilean System and its stated objectives.  The Panel did not evaluate theobjectives themselves; it simply examined whether there was a rational connection between themeasure and the objectives.  This was one piece of evidence supporting the finding of protectiveapplication.  Furthermore, the Panel did not, as Chile claims, apply a "necessity" test to assess therelationship of the measures with their stated objectives.  Certain of the Panel's factual findingsestablish that the New Chilean System is, in fact, "inconsistent" with its stated policy objectives.
Finally, if the Panel's review of the rational conne ction between Chile's stated objectives and the
measure was in error, the other factors cited by the Panel nevertheless constitute sufficient evidencethat the measure was applied "so as to afford protection".
3. Article 12.7 of the DSU
29. The European Communities states that Chile's ar gument that the Panel failed to provide a
"basic rationale" for its findings, in contravention of Article 12.7 of the DSU, is, in fact, the same asits argument that the Panel erred in interpreting Article III:2, second sentence, of the GATT 1994.Chile's disagreement with the logic behind the Panel's reasoning is not sufficient to conclude that thePanel failed to provide a "basic rationale" for its findings.
4. Articles 3.2 and 19.2 of the DSU
30. The Panel could only have added to the rights and obligations of WTO Members in
contravention of Articles 3.2 and 19.2 of the DSU if it had made a legal error in its interpretation ofArticle III:2, second sentence, of the GATT 1994.  Similarly, Chile's claim that the Panel's findingsundermine the "security and predictability" of the multilateral trading system contrary to Article 3.2 ofthe DSU is premised on an assumption that the Panel erred in its interpretation of Article III:2, secondWT/DS87/AB/R
WT/DS110/AB/R
Page 9
sentence, of the GATT 1994.  The European Communities believes that the Panel's findings on
Article III:2, second sentence, of the GATT 1994 shoul d be upheld.  Therefore, the Panel could not
have acted in contravention of Articles 3.2 and 19.2 of the DSU.  Finally, it is doubtful whether thefirst sentence of Article 19.2 of the DSU creates a legal obligation, violation of which would providethe basis for a claim.
C. Arguments by the Third Participants
1. Mexico
(a) "Not Similarly Taxed"
31. Mexico notes that, in previous WTO disputes involving Article III:2, second sentence, of the
GATT 1994, a simple and direct analysis has been carried out to determine whether imports anddomestic products are "not similarly taxed". In this case, the Panel did not deviate from this method.The fact that the Panel recognized the existence of  difficulties in the analysis, or omitted to make
suggestions on how the New Chilean System c ould comply with the "not similarly taxed"
requirement, is not a legal error.
(b) "So As To Afford Protection"
32. According to Mexico, the Panel was correct to observe that, even though the New Chilean
System is based on alcohol content, that System mainly benefits domestic producers.  For example,
the tax differential between pisco corriente and tequila is very high. This differential is compoundedby the fact that the difference in alcohol content between these products is low.
33. Mexico contests Chile's assertion that the Panel erred by examining the consistency of the
New Chilean System with its stated objectives.  The Panel examined only whether the statedobjectives had a logical connection with the measure itself.  In any case, this was just one of severalelements that the Panel took into account in examining the design, architecture and structure of theNew Chilean System.
(c) Article 12.7 of the DSU
34. According to Mexico, the Panel was not obliged to determine how Chile's taxation of distilled
alcoholic beverages might comply with Article III:2, second sentence, of the GATT 1994.  ThePanel's failure to do this does not violate Article 12.7 of the DSU.WT/DS87/AB/R
WT/DS110/AB/R
Page 10
(d) Articles 3.2 and 19.2 of the DSU
35. In Mexico's view, the Panel's finding does not prejudice the "security and predictability" of
the multilateral trading system under Article 3.2 of the DSU, nor does it "add to or diminish" therights and obligations of WTO Members under the WTO Agreement  in terms of Articles 3.2 and 19.2
of the DSU.
2. United States
(a) "Not Similarly Taxed"
36. The United States notes that the tax brackets set forth in the New Chilean System for products
with an alcohol content of over 35° affect the vast majority of imports and are subject to steeplyincreasing ad valorem  rates. The increased rates do not apply to spirits at or below 35°, which, in fact,
are "almost all" pisco, a product that is "by law" Chilean.
 29  The result is a difference in tax treatment
between those products above and those at or below the 35° threshold.  According to the UnitedStates, this difference in tax treatment is more than  de minimis .
37. The United States emphasizes that the existence of dissimilar taxation does not render a tax
measure inconsistent with Article III:2, second sentence, of the GATT 1994 because the third issue of"so as to afford protection" must be examined.
(b) "So As To Afford Protection"
38. According to the United States, it is the particular design of the alcohol content threshold
established by New Chilean System that raises questions about protective application.  The NewChilean System has been designed to provide the same, or even more, protection to pisco as didprevious tax systems. The fact that some imported liqueurs will have access to the lower ad valorem
rates does not alter the protective treatment applied against the great majority  of imports.
39. The second critical factor revealing a protective structure is the extent of the difference in
treatment for imported and domestic products.  In this respect, there are large increases in the tax ratein relation to proportionally small differences in alcohol content.  This disproportionate increase
implies that Chile rejected a single specific tax or a straight  ad valorem  tax because neither would
provide sufficient protection for  pisco.
                                                     
29United States' third participant's submission, para. 14.WT/DS87/AB/R
WT/DS110/AB/R
Page 11
40. In the view of the United States, the issue of whether a measure is applied "so as to afford
protection" is clearly a question of the "intent of the law in its classic sense." 30  However, the way in
which the Panel examined Chile's alleged policy objectives appears to create new kinds of  ad hoc
legal criteria.  Nevertheless, since the Panel's finding on this issue has a sufficient basis in the otherfactors examined, the United States concludes that the New Chilean System is applied "so as to affordprotection".
(c) Article 12.7 of the DSU
41. According to the United States, the Panel cited the correct authority for its findings, set out
all of Chile's claims, and then rejected them with de tailed findings of fact and arguments. The fact that
Chile does not agree with the Panel's logic, or that the Panel did not develop a definitive theory forother disputes, does not mean that a "basic rationale" was not provided.  The Panel's reasoning is,therefore, consistent with the requirements of Article 12.7 of the DSU.
(d) Articles 3.2 and 19.2 of the DSU
42. The United States believes that the provisions of Article 3.2 do not give rise to an obligation
on which a claim can be made. The first sentence of Article 3.2 describes a very important objective,which sheds light on the meaning of all legal obligations in the WTO Agreement.   This objective,
however, is not an obligation in and of itself and should not be raised as the basis for an independent
violation.
III. Issues Raised in this Appeal
43. The following issues are raised in this appeal:
(a) whether the Panel erred in its interpretation and application of the term "not similarly
taxed", which appears in the Ad Article to Article III:2, second sentence, of the GATT
1994;
(b) whether the Panel erred in its interpretation and application of the term "so as to
afford protection", which is incorporated into Article III:2, second sentence, of the
GATT 1994, by specific reference to the "principles set forth in paragraph 1" of
Article III of that Agreement;
                                                     
30United States' third participant's submission, para. 31.WT/DS87/AB/R
WT/DS110/AB/R
Page 12
(c) whether the Panel failed to set out the basic rationale for its findings and
recommendations regarding the interpretation and application of the term "notsimilarly taxed", as required by Article 12.7 of the DSU;  and
(d) whether the Panel acted inconsistently with Articles 3.2 and 19.2 of the DSU by
adding to the rights and obligations of WTO Members in its interpretation andapplication of the terms "not similarly taxed" and "so as to afford protection", underArticle III:2, second sentence, of the GATT 1994.
IV. "Not Similarly Taxed"
44. On the issue of "not similarly taxed", the Panel observed:
The difference in taxation between the top (47%) and bottom (27%)
levels of ad valorem  rates of taxation of distilled alcoholic beverages
is clearly more than de minimis  and is so by a very large margin.
Indeed, it is obvious that the difference of four percentage points
between the various levels of alcohol content also constitutes a greaterthan  de minimis  level of dissimilar taxation.
31
45. The Panel found that, from the aggregate group of directly competitive or substitutable
products, " some  of the imports are being taxed dissimilarly from some  of the domestic production and
the difference is more than de minimis ."32  (emphasis added)  The Panel concluded that there was,
therefore, "dissimilar taxation of the imports in an amount that is greater than de minimis ".33
46. Chile argues on appeal that, if the New Chilean System is examined from the "proper
perspective"34, it is clear that all of the beverages at issue, regardless of their origin, are taxed
according to the same objective criteria: alcohol content and price.  When evaluated from this"perspective", Chile maintains, the New Chilean System does not apply dissimilar taxation because alldistilled alcoholic beverages, whether domestic or imported, with the same alcohol content are taxedat an identical ad valorem  rate.  Chile contends that, because there is no dissimilar taxation, there is no
need or justification to proceed to the third issue under Article III:2, second sentence, of the
GATT 1994 and examine whether the New Chilean System is applied "so as to afford protection todomestic production."
                                                     
31Panel Report, para. 7.110.
32Ibid., para. 7.113.
33Ibid., para. 8.1.
34Chile's appellant's submission, page 13, heading 4.WT/DS87/AB/R
WT/DS110/AB/R
Page 13
47. We begin by recalling that, in  Japan – Alcoholic Beverages , we stated that three separate
issues must be addressed when assessing the consistency of an internal tax measure with Article III:2,second sentence, of the GATT 1994.  These three issues are whether:
(1) the imported products and the domestic products  are "directly
competitive or substitutable products " which are in competition
with each other ;
(2) the directly competitive or substitutable imported and domestic
products  are "not similarly taxed ";  and
(3) the dissimilar taxation of the directly competitive or
substitutable imported and domestic products  is "applied ... so
as to afford protection to domestic production ".
35
48. The Panel's conclusion on the first issue, that "domestic distilled alcoholic beverages
produced in Chile, including pisco, and the imported products presently identified by HS
classification 2208, are directly competitive or substitutable products", has not been appealed.36
Therefore, we have to base our reasoning, for the purposes of this appeal, on the finding that all the
domestic and imported products at issue are directly competitive or substitutable with each other,within the meaning of Ad Article III:2 of the GATT 1994.
49. In  Japan – Alcoholic Beverages , we stated that "to be 'not similarly taxed', the tax burden on
imported products must be heavier than on 'directly competitive or substitutable' domestic products,and that burden must be more than  de minimis  in any given case."
37  Like the Panel38, we consider
that this is the appropriate legal standard to apply under the second issue of "not similarly taxed".  Wemust, therefore, assess the relative tax burden imposed on directly competitive or substitutable
domestic and imported products.
50. The New Chilean System applies a minimum tax rate of 27 per cent  ad valorem  to all
distilled alcoholic beverages with an alcoholic content of 35° or less and a maximum rate of47 per cent  ad valorem  to all such beverages with an alcohol content of more than 39°.  The Panel
found, as a factual matter, that "roughly 75% of domestic production will enjoy the lowest rate and …over 95% of all current (and potential) imports will be taxed at the highest rate …".
39
                                                     
35Supra , footnote 20, p. 24.
36Panel Report, para. 8.1.  The imported products at issue include whisky, brandy, rum, gin, vodka,
liqueurs, aquavit, korn, fruit brandies, ouzo and tequila.
37Supra , footnote 20, p. 27.
38Panel Report, para. 7.89.
39Ibid., para. 7.158.  Chile has not contested this factual finding.WT/DS87/AB/R
WT/DS110/AB/R
Page 14
51. Chile has argued that there is "similar taxation" of domestic and imported production under
the New Chilean System because all beverages with a specific alcohol content are subject to identicalad valorem  tax rates, irrespective of their origin.  In making this argument, Chile invites us to focus
exclusively on a comparison of the relative tax burden on domestic and imported products within each
fiscal category  and to disregard the differences of tax burden on distilled alcoholic beverages which
have different alcohol contents and which are, therefore, in different fiscal categories .  In other words,
Chile asks us to disregard the comparison which the Panel undertook of the relative tax burden on
domestic and imported products located in different fiscal categories .
52. It is certainly true that, as Chile claims, if we were to focus the inquiry under the second issue
solely on a comparison of the taxation of beverages of a specific alcohol content, we would have toconclude that all distilled alcoholic beverages of a specific alcohol content are taxed similarly.However, as we stated at the outset, in our analysis we must assume that the group of directlycompetitive or substitutable products in this case is broader than simply the products  within each
fiscal category .
40  Chile's argument fails to recognize that the Panel has found, and Chile has not
appealed, that imported beverages of a specific alcohol content are directly competitive orsubstitutable with other domestic distilled alcoholic beverages of a different alcohol content.  To
accept Chile's argument on appeal would, we believe, disregard the objective of Article III, which is
to "provide equality of competitive conditions" for all directly competitive or substitutable imported
products in relation to domestic products, and not simply for some  of these imported products.
41  The
examination under the second issue must, therefore, take into account the fact that the group ofdirectly competitive or substitutable domestic and imported products at issue in this case is not limitedsolely to beverages of a specific alcohol content, falling within a particular  fiscal category, but covers
all the distilled alcoholic beverages in each and every  fiscal category under the New Chilean System.
53. A comprehensive examination of this nature, which looks at all of the directly competitive or
substitutable domestic and imported products, shows that the tax burden on imported products, most
of which will be subject to a tax rate of 47 per cent, will be heavier than the tax burden on domestic
products, most of which will be subject to a tax rate of 27 per cent.  We agree with the Panel that thedifference in the level of the tax burden is clearly more than de minimis  and, in any event, Chile has
not appealed the Panel's finding that the difference between these tax rates is more than de minimis .
                                                     
40Supra , para. 48.
41Appellate Body Report , Japan – Alcoholic Beverages, supra , footnote 20, p. 16.WT/DS87/AB/R
WT/DS110/AB/R
Page 15
54. In these circumstances, we uphold the Panel's finding, in paragraph 8.1 of the Panel Report,
that directly competitive or substitutable imported and domestic products are "not similarly taxed",within the meaning of  Ad Article III:2 of the GATT 1994.
55. We stress, finally, that a tax measure is inconsistent with Article III:2, second sentence, of the
GATT 1994 only  if dissimilar taxation of directly competitive or substitutable imported products is
applied "so as to afford protection to domestic production". As we stated in Japan – Alcoholic
Beverages , the issues of "not similarly taxed" and "so as to afford protection" are entirely separate,
and both issues must be resolved before a finding of consistency or inconsistency can be reached
under Article III:2, second sentence.
42  A finding of dissimilar taxation  by itself   is not sufficient to
sustain a conclusion that the New Chilean System is inconsistent with Article III:2, second sentence.Rather, a finding of dissimilarity of taxation merely calls for an inquiry under the third issue, to which
we now turn.
V. "So As To Afford Protection"
56. The Panel began its analysis of whether the New Chilean System will be applied "so as to
afford protection" by recalling certain of the Appellate Body's statements in  Japan – Alcoholic
Beverages .
43  The Panel stated that the "real issue" is "how the measure in question is  applied ."44  The
Panel noted that this can often be discerned from an examination of the "design, architecture and
revealing structure" of the measure, as well as from the magnitude of the dissimilar taxation.45  The
Panel also took the view that "an important question is who receives the benefit of the dissimilartaxation."
46
57. The Panel expressed its conclusion on this issue in the following terms:
                                                     
42Supra , footnote 20, pp. 24 and 27.
43Panel Report, paras. 7.114 and 7.115.
44Ibid., para. 7.115, citing the Appellate Body Report in  Japan – Alcoholic Beverages , supra , footnote
20, p. 28.
45Ibid., para. 7.115, citing the Appellate Body Report in  Japan – Alcoholic Beverages , supra , footnote
20, p. 29.
46Ibid., para. 7.123.WT/DS87/AB/R
WT/DS110/AB/R
Page 16
In sum, considering:  (1) the structure of the New Chilean System
(with its lowest rate at the level of alcohol content of the large
majority of domestic production and its highest rate at the level of the
overwhelming majority of imports);  (2) the large magnitude of the
differentials over a short range of physical difference (35° versus 39°
of alcohol content);  (3) the interaction of the New Chilean Systemwith the Chilean regulation which requires most of the imports to
remain at the highest tax level without losing their generic name and
changing their physical characteristics;  (4) the lack of any connection
between the stated objectives and the results of such measures
(recognizing that "good" objectives cannot rescue an otherwise
inconsistent measure);  and, (5) the way this new measure fits in a
logical connection with existing and previous systems of de jure
discrimination against imports, we find that the dissimilar taxation
assessed on directly competitive or substitutable imports and domestic
products is applied in a way that affords protection to domestic
production.
47
58. Chile argues, first, that since its law is based on two widely accepted, non-arbitrary criteria –
alcohol content and price – the structure of the system does not support a finding of protection.48  In
fact, imports are able to compete equally with domestic products in each and every fiscal category.Second, Chile submits that the New Chilean System is not applied "so as to afford protection" becausea majority of the products in the highest tax brackets are domestic, not imported.  Third, Chilecontends that the Panel erred in taking into account the objectives of the New Chilean System.Finally, Chile rejects as non-relevant the Panel's assertion of a "logical relationship" between existingand previous systems of de jure  discrimination against imports.
59. At the outset, it is useful to recall that in  Japan – Alcoholic Beverages , we observed:
Members of the WTO are free to pursue their own domestic goals
through internal taxation or regulation so long as they do not do so in a
way that violates Article III or any of the other commitments they havemade in the  WTO Agreement.
49
60. Members of the WTO have sovereign authority to determine the basis or bases on which they
will tax goods, such as, for example, distilled alcoholic beverages, and to classify such goodsaccordingly, provided of course that the Members respect their WTO commitments.  The reference inAd Article III:2, second sentence, of the GATT 1994 to "not similarly taxed" is not in itself a
prohibition against classifying goods for revenue and regulatory purposes that Members set forthemselves as legitimate and desirable.  Members of the WTO are free to tax distilled alcoholic
                                                     
47Panel Report, para. 7.159.
48Chile's appellant's submission, para. 39.
49Supra , footnote 20, p. 16.WT/DS87/AB/R
WT/DS110/AB/R
Page 17
beverages on the basis of their alcohol content and price, as long as the tax classification is not applied
so as to protect domestic production over imports.  Alcohol content, like any other basis or criterion oftaxation, is subject to the legal standard embodied in Article III:2 of the GATT 1994.
61. We turn now to consider the Panel's interpretation and application of the expression "so as to
afford protection to domestic production", an expression which we have already had occasion toconsider in other appeals.  In our Report in  Japan – Alcoholic Beverages , we said that examination of
whether a tax regime affords protection to domestic production "is an issue of how the measure in
question is applied "
50, and that such an examination "requires a comprehensive and objective
analysis"51:
… it is possible to examine objectively the underlying criteria used in
a particular tax measure, its structure, and its overall application to
ascertain whether it is applied in a way that affords protection to
domestic products.52
62. We emphasized in that Report that, in examining the issue of "so as to afford protection", "it
is not necessary for a panel to sort through the many reasons legislators and regulators often have for
what they do and weigh the relative significance of those reasons to establish legislative or regulatory
intent."53  The subjective  intentions inhabiting the minds of individual legislators or regulators do not
bear upon the inquiry, if only because they are not accessible to treaty interpreters.  It does not follow,however, that the statutory purposes or objectives – that is, the purpose or objectives of a Member's
legislature and government as a whole – to the extent that they are given objective  expression in the
statute itself, are not pertinent.  To the contrary, as we also stated in Japan – Alcoholic Beverages :
Although it is true that the aim of a measure may not be easily
ascertained, nevertheless its protective application can most often bediscerned from the design , the architecture , and the revealing
structure  of a measure.
54 (emphasis added)
63. We turn, therefore, to the design, the architecture and the structure of the New Chilean
System itself.  That system taxes all alcoholic beverages with an alcohol content of 35° or below on a
linear basis, at a fixed rate of 27 per cent  ad valorem .  Thereafter, the rate of taxation increases
steeply, by 4 percentage points for every additional degree of alcohol content, until a maximum rate
                                                     
50Supra , footnote 20, p. 28.
51Ibid., p. 29.
52Ibid.
53Ibid. , p. 27.
54Ibid., p. 29.WT/DS87/AB/R
WT/DS110/AB/R
Page 18
of 47 per cent  ad  valorem  is reached.  This fixed tax rate of 47 per cent applies, once more on a
linear basis, to all beverages with an alcohol content in excess of 39°, irrespective of how much in
excess of 39° the alcohol content of the beverage is.
64. We note, furthermore, that, according to the Panel, approximately 75 per cent of all domestic
production has an alcohol content of 35° or less and is, therefore, taxed at the lowest rate of27 per cent  ad valorem .
55  Moreover, according to figures supplied to the Panel by Chile,
approximately half of all domestic production has an alcohol content of 35° and is, therefore, located
on the line of the progression of the tax at the point immediately before  the steep increase in tax rates
from 27 per cent  ad valorem .56  The start of the highest tax bracket, with a rate of 47 per cent
 ad valorem , coincides with the point at which most imported beverages are found.  Indeed, according
to the Panel, that tax bracket contains approximately 95 per cent of all directly competitive orsubstitutable imports.
57
65. Although the tax rates increase steeply for beverages with an alcohol content of more than 35°
and up to 39°, there are, in fact, very few beverages on the Chilean market, either domestic orimported, with an alcohol content of between 35° and 39°.
58  The graduation of the rates for beverages
with an alcohol content of between 35° and 39° does not, therefore, serve to tax distilled alcoholic
beverages on a progressive basis.  Indeed, the steeply graduated progression of the tax rates between
35° and 39° alcohol content seems anomalous and at odds with the otherwise linear nature of the taxsystem.  With the exception of the progression of rates between 35 ° and 39 ° alcohol content, this
system simply applies one of two fixed rates of taxation, either 27 per cent  ad valorem  or 47 per cent
 ad valorem , each of which applies to distilled alcoholic beverages with a broad range of alcohol
content, that is, 27 per cent for beverages with an alcoholic content of up to 35°  and 47 per cent for
beverages with an alcohol content of more than 39° .
66. In practice, therefore, the New Chilean System will operate largely as if there were only two
tax brackets: the first applying a rate of 27 per cent  ad valorem  which ends at the point at which
most domestic beverages, by volume, are found, and the second applying a rate of 47 per cent
 ad valorem  which begins at the point at which most imports, by volume, are found.  The magnitude
                                                     
55Panel Report, para. 7.158.  See also Panel Report, para. 7.155.
56Chile's response to Question 1 of the Panel, 26 November 1998.  At the oral hearing, Chile confirmed
the accuracy of the figures contained in this response.
57Panel Report, para. 7.158.
58Chile's response to Question 1 of the Panel, 26 November 1998.  These figures indicate that
approximately 5 per cent of all distilled alcoholic beverages have an alcohol content in this range.  At the oral
hearing, Chile confirmed that very few beverages have an alcohol content of between 35° and 39°.WT/DS87/AB/R
WT/DS110/AB/R
Page 19
of the difference between these two rates is also considerable.  The absolute difference of
20 percentage points between the two rates represents a 74 per cent increase in the lowest rate of27 per cent  ad valorem .  Accordingly, examination of the design, architecture and structure of the
New Chilean System tends to reveal that the application of dissimilar taxation of directly competitiveor substitutable products will "afford protection to domestic production."
67. It is true, as Chile points out, that domestic products are not only subject to the highest tax
rate but also comprise the major part of the volume of sales in that bracket.  This fact does not,
however, by itself outweigh the other relevant factors, which tend to reveal the protective application
of the New Chilean System.  The relative proportion of domestic versus imported products within aparticular fiscal category is not, in and of itself, decisive of the appropriate characterization of thetotal impact of the New Chilean System under Article III:2, second sentence, of the GATT 1994.This provision, as noted earlier, provides for equality of competitive conditions of all directly
competitive or substitutable imported products, in relation to domestic products, and not simply, asChile argues, those imported products within a particular fiscal category.
59  The cumulative
consequence of the New Chilean System is, as the Panel found, that approximately 75 per cent of alldomestic production of the distilled alcoholic beverages at issue will be located in the fiscal category
with the lowest tax rate, whereas approximately 95 per cent of the directly competitive or
substitutable imported products will be found in the fiscal category subject to the highest tax rate.
68. The comparatively small volume of imports consumed on the Chilean market may, in part, be
due to past protection.
60  We consider that it would defeat the objective of Article III:2, second
sentence, of the GATT 1994 if a Member of the WTO were able to avoid a finding that a measure isapplied "so as to afford protection" for reasons that could, in part, result from its past protection ofdomestic production.
61
69. Before the Panel, Chile stated that the New Chilean System pursued four different objectives:
"(1)  maintaining revenue collection;  (2) eliminating type distinctions [such] as [those which] were
found in Japan and Korea;  (3) discouraging alcohol consumption;  and (4) minimizing the potentially
regressive aspects of the reform of the tax system."62  Chile also stated that the New Chilean System
                                                     
59Supra , para. 52.
60Chile acknowledged to the Panel that it reformed its taxation of distilled alcoholic beverages, in part,
in order to eliminate the "type distinctions" between spirits condemned in  Japan – Alcoholic Beverages  and
Korea – Alcoholic Beverages (see Panel Report, paras. 4.450 and 4.504).  The "type distinctions" were formal
distinctions between "pisco", "whisky" and "other spirits" ( ibid., para. 2.4).
61See Appellate Body Report,  Korea – Alcoholic Beverages , supra , footnote 21, para. 120.
62Panel Report, para. 7.147.  See also Pa nel Report, paras. 4.449, 4.450 and 4.452.WT/DS87/AB/R
WT/DS110/AB/R
Page 20
reflected compromises between the four objectives which became necessary in the process of
legislative enactment.  The Panel did not find any clear relationship between the stated objectives andthe tax measure itself and considered the absence of a clear relationship as "evidence confirming  the
discriminatory design, structure and architecture of [the Chilean] measure."
63  (emphasis added)
70. On appeal, Chile argues that the Panel was "wrong to even consider the objectives"
underlying the New Chilean System.64  Chile declines to explain the relationship between the design,
architecture and structure of the New Chilean System and the objectives it stated that System sought
to realize.  At the oral hearing, Chile confirmed that, in its view, the stated objectives of the New
Chilean System were not "relevant" in assessing whether that measure would be applied "so as toafford protection".
65
71. We recall once more that, in Japan – Alcoholic Beverages , we declined to adopt an approach
to the issue of "so as to afford protection" that attempts to examine "the many reasons legislators andregulators often have for what they do".
66  We called for examination of the design, architecture and
structure of a tax measure precisely to permit identification of a measure's objectives or purposes asrevealed or objectified in the measure itself.  Thus, we consider that a measure's purposes, objectivelymanifested in the design, architecture and structure of the measure,  are  intensely pertinent to the task
of evaluating whether or not that measure is applied so as to afford protection to domestic production.
In the present appeal, Chile's explanations concerning the structure of the New Chilean System –including, in particular, the truncated nature of the line of progression of tax rates, which effectivelyconsists of two levels (27 per cent  ad valorem  and 47 per cent  ad valorem ) separated by only
4 degrees of alcohol content – might have been helpful in understanding what  prima facie  appear to
be anomalies in the progression of tax rates.  The conclusion of protective application reached by thePanel becomes very difficult to resist, in the absence of countervailing explanations by Chile.  Themere statement of the four objectives pursued by Chile does not constitute effective rebuttal on thepart of Chile.
72. At the same time, we agree with Chile that it would be inappropriate, under Article III:2,
second sentence, of the GATT 1994, to examine whether the tax measure is  necessary   for achieving
its stated objectives or purposes.  The Panel did use the word "necessary" in this part of its
                                                     
63Panel Report, para. 7.154.
64Chile's appellant's submission, para. 100.
65Response by Chile to questioning at the oral hearing.
66Supra , footnote 20, p. 27.WT/DS87/AB/R
WT/DS110/AB/R
Page 21
reasoning.67  Nevertheless, we do not read the Panel Report as showing that the Panel did, in fact,
conduct an examination of whether the measure is necessary to achieve its stated objectives.  Itappears to us that the Panel did no more than try to relate the observable structural features of themeasure with its declared purposes, a task that is unavoidable in appraising the application of themeasure as protective or not of domestic production.
73. In reaching its conclusion on the issue of "so as to afford protection", the Panel also relied on
the fact that Chilean law imposes minimum alcohol content requirements on a range of distilled
alcoholic beverages, including most of the beverages imported into Chile.
68  The Panel invoked the
"interaction of the New Chilean System with the Chilean regulation which requires most of theimports to remain at the highest tax level without losing their generic name and changing theirphysical characteristics".
69  We believe this reliance by the Panel to be unjustified.  Chilean law does
not prohibit the importation of any distilled alcoholic beverages, whatever their alcohol content.Under Chilean law, a regulation imposes minimum quality standards, in respect of various kinds ofdistilled alcoholic beverages, relating to,  inter alia , alcohol content, maximum sugar content and
maximum volatile (e.g., aldehydes, furfural) impurities content.
70  This regulation appears to be
broadly reflective of similar standards enforced in many markets.  The "interaction" the Panel sees
between the New Chilean System and the Chilean regulation does not contribute to the cogency of the
Panel's conclusion on the "so as to afford protection" issue and, in our view, should not have beentaken into account by the Panel.
74. The final factor that the Panel relied upon in reaching the conclusion under the issue of "so as
to afford protection" was "the way this new meas ure fits in a logical connection with existing and
previous systems of  de jure   discrimination against imports".
71  In our view, the Panel has relied on
the fact that previous Chilean measures, which are no longer applicable, involved some protection ofdomestic alcoholic beverages to show that the new tax system will also be applied "so as to afford
protection".  The Panel's reliance on this factor is wrong.  Members of the WTO should not be
assumed, in any way, to have continued  previous protection or discrimination through the adoption of
                                                     
67Panel Report, para. 7.149.
68Panel Report, para. 7.155.
69Ibid., para. 7.159.
70Articles 9-13, Title II, Decree No. 78 of 31 July 1986, implementing Law No. 18,455 of
31 October 1985 (Exhibit No. 13 submitted by the European Communities to the Panel).
71Panel Report, para. 7.159.WT/DS87/AB/R
WT/DS110/AB/R
Page 22
a new measure.72  This would come close to a presumption of bad faith.  Accordingly, we hold that
the Panel committed legal error in taking this factor  into account in examining the issue of "so as to
afford protection".
75. However, in view of the other factors properly relied upon by the Panel, we believe that the
Panel's conclusion that the dissimilar taxation is applied "so as to afford protection" is unaffected bythe exclusion of these last two factors.
76. In light of the foregoing, we uphold the Panel's finding, in paragraph 8.1 of the Panel Report,
that the dissimilar taxation under the New Chilean System is applied "so as to afford protection to
domestic production", and, hence, is inconsistent with the requirements of Article III:2, secondsentence, of the GATT 1994.
VI. Article 12.7 of the DSU
77. Chile argues that "the Panel failed to fulfill its obligation under Article 12.7 [of the] DSU to
provide the basic rationale behind its findings when analyzing the 'dissimilarity' condition ofArticle III:2, second sentence."
73  Specifically, Chile states that "the Panel did not provide a basic
rationale for defining 'dissimilarity' as such nor did it explain how the Chilean tax system could satisfythat condition."
74
78. A similar claim was made by Korea in  Korea – Alcoholic Beverages .  In that case the
Appellate Body concluded that the Panel had provided a "detailed and thorough" rationale for itsfindings.
75  In our view, in this case, the Panel did "set out" a "basic rationale" for its finding and
recommendation on the issue of "not similarly taxed", as required by Article 12.7 of the DSU.  The
Panel identified the legal standard it applied, examined the relevant facts, and provided reasons for itsconclusion that dissimilar taxation existed.
76  Therefore, Chile's claim that the Panel failed to "set out"
a "basic rationale" for its findings and recommenda tions in accordance with Article 12.7 of the DSU
is denied.
                                                     
72As we have said, past protection of domestic production may, however, be a relevant factor in
assessing current consumer preferences and the current structure of a market, since these may have been
influenced, in part, by that past protection (see supra , para. 68, and Appellate Body Report, Korea – Alcoholic
Beverages , supra , footnote 21, para. 120).
73Chile's appellant's submission, para. 47.
74Ibid., para. 52.
75Supra , footnote 21, para. 168.
76The Panel's reasoning is set out in paragraphs 7.103 to 7.113 of the Panel Report.WT/DS87/AB/R
WT/DS110/AB/R
Page 23
VII. Articles 3.2 and 19.2 of the DSU
79. Chile claims that the Panel's findings on the issues of "not similarly taxed" and "so as to
afford protection" compromise the "security and predictability" of the multilateral trading system,provided for in Article 3.2 of the DSU, and "add to … the rights and obligations of Members" underArticle III:2, second sentence, of the GATT 1994, in contravention of Articles 3.2 and 19.2 of the
DSU.  In this dispute, while we have rejected certain of the factors relied upon by the Panel, we havefound that the Panel's legal conclusions are not tainted by any reversible error of law.  In these
circumstances, we do not consider that the Panel has added to the rights or obligations of any Member
of the WTO.  Moreover, we have difficulty in envisaging circumstances in which a panel could add tothe rights and obligations of a Member of the WTO if its conclusions reflected a correct interpretation
and application of provisions of the covered agr eements.  Chile's appeal under Articles 3.2 and 19.2 of
the DSU must, therefore, be denied.
VIII.  Findings and Conclusions
80. For the reasons set out in this Report, the Appellate Body:
(a) upholds the Panel's interpretation and application of the term "not similarly taxed",
which appears in the Ad Article to Article III:2, second sentence, of the GATT 1994;
 (b) upholds the Panel's interpretation and application of the term "so as to afford
protection", which is incorporated into Article III:2, second sentence, of the GATT1994, by specific reference to the "principles set forth in paragraph 1" of Article III ofthat Agreement, subject, however, to the exclusion of the third and fifth considerationsrelied upon by the Panel in reaching its conclusion in paragraph 7.159 of its Report;
(c) concludes that the Panel did not fail to set out the basic rationale for its findings and
recommendations regarding the interpretation and application of the term "notsimilarly taxed", as required by Article 12.7 of the DSU; and
(d) concludes that the Panel did not act inconsistently with Articles 3.2 and 19.2 of the
DSU by adding to the rights and obligations of WTO Members in its interpretation
and application of the terms "not similarly taxed" and "so as to afford protection",under Article III:2, second sentence, of the GATT 1994.WT/DS87/AB/R
WT/DS110/AB/R
Page 24
81. The Appellate Body recommends  that the DSB request Chile to bring the New Chilean
System, contained in the Additional Tax on Alcoholic Beverages, into conformity with its obligationsunder Article III:2, second sentence, of the GATT 1994.
Signed in the original at Geneva this 9
th day of November 1999 by:
Florentino Feliciano
Presiding Member
Claus-Dieter Ehlermann Julio Lacarte-Muró
Member Member