WORLD TRADE
ORGANIZATIONWT/DS27/42
12 January 1999
(99-0083)
Original:  English
EUROPEAN COMMUNITIES - REGIME FOR THE IMPORTATION,
SALE AND DISTRIBUTION OF BANANAS
Communication from Guatemala, Hondur as, Panama and the United States
The following communication, dated 11 January 1999, from the Permanent Missions of
Guatemala, Honduras, Panama and the United States to the Chairman of the Dispute Settlement Body,
is circulated at the request of these delegations.
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We are writing to express our objection to the European Community (EC) efforts made in
sessions of the Dispute Settlement Body (DSB) on 15 December and 21 December to circumvent the
normal DSB rules and procedures.  We consider that the DSB actions sought by the European
Community at those sessions concerning the bananas dispute went beyond the express and delimitedpurpose of those sessions, and therefore the DSB cannot conclude that the discussions at those
sessions constituted the first meeting at which the EC’s purported panel request was considered by the
DSB for purposes of Article 6.1 of the DSU.  Not only does the EC request  (document
WT/DS/27/40) not constitute recourse to Article 21.5, but there is no procedural basis for the DSB to
treat the forthcoming meeting on 12 January as the second meeting at which DSB action could be
taken upon that request.
On 25 November, the DSB decided to extend its m eeting to provide for the possibility that the
DSB might need to ratify an agreement among the pa rties to the banana dispute (DS27) to reconvene
the original panel to review the banana measures in effect in the EC as of 1 January 1999.  At the
meeting on 25 November, you recommended to the DSB, and the DSB agreed, both to include an
additional item on the agenda of the meeting (entitled “EC -- Regime for the importation, sale anddistribution of bananas -- Recourse to Article 21.5” ) and to adjourn the meeting and “reconvene at a
later date in order to consider this matter.”  You acknowledged the basis for such an extension of the
DSB meeting when you properly said, “It is understood that this proposal is made under exceptional
circumstances in the light of the importance of the matter and on the basis of the agreement  reached to
this effect among the parties concerned.”  Thus it was clear at the outset that the extension of the DSBmeeting of 25 November was an extraordinary one and based on an understanding that any action to
be taken by the DSB would be one to which the parties would agree .  Your understanding -- and ours
-- of these preconditions was again expressed on 3 December in announcing a possible reconvening of
the DSB on 8 December.  You stated that it “would be” your intention to reconvene the DSB “ if a
mutually agreed approach to this matter can be reached on time.”
Despite the precondition you stated for reconvening the DSB -- a mutually-agreed approach --
on 11 December the EC wrote you wholly unilaterally and asked to reconvene the DSB.  A few hours
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before the DSB was reconvened on 15 December, our governments received a copy of a purported
panel request by the EC, which did not reflect a mutually-agreed approach.  As Chairman, you
properly told the DSB that no decisions could be taken at that meeting.
Contrary to your suggestion at the 21 December DSB meeting, the question whether, under
these circumstances, that meeting could constitute the first meeting for consideration of the EC
request is a question for the DSB, not for a pane l convened in response to the EC’s request.
Moreover, the DSB’s decision not to adjourn the 25 November meeting pending an agreement
between the parties was not a decision to waive the notice and prior documentation requirements in
the DSB’s rule of procedure.
As much as our governments object to the numerous procedural irregularities, we take even
greater exception to the obvious substantive defects of the EC’s request.  Rather than requesting
recourse to Article 21.5 to review the EC banana regime, the EC has requested a panel to interpret
Article 21.5.  Otherwise put, the EC’s request is not seeking a panel to review the consistency of its
banana measures, but instead is demanding that the DSB establish a panel to agree with the EC’s legal
position on Article 21.5.  The request further seeks to establish a new presumption in favor of theparty that has been found in violation of its WTO obligations.  There is no basis whatsoever in the
DSU for the creation of an Article 21.5 panel to accomplish such purposes.  Nor can we accept the
EC’s extraordinary attempts to change its panel request orally , which can have no legal effect
whatsoever in light of DSU Article 6.2, which requ ires that panel requests must be in writing.
Moreover, if Article 4 of the DSU (Consultations) is applicable to Article 21.5 procedures, as
the EC has previously claimed, then the EC has no t satisfied its own stipulated precondition for the
lodging of such a request.  The EC representative itself summed up the substantive deficiency and
irregularities of its own request when it noted on 15 December that the EC could not initiate a
complaint against itself.  Accordingly, its request does not and cannot constitute “Recourse toArticle 21.5."
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